794

          DISSENTING OPINION OF JUDGE CRAWFORD

   Jurisdiction of the Court under Article 36 (2) of Statute — Existence of a
dispute — Awareness or objective awareness not a legal requirement — No prior
negotiations or notice necessary before seising the Court — Dispute in principle to
exist at the time of Application — Flexible approach — Finding of dispute may be
based on post-Application conduct or evidence — Mavrommatis principle —
Existence of multilateral dispute — Existence of dispute between Marshall Islands
and Pakistan.

  Monetary Gold objection — Issue for the merits.

                               I. Introduction

   1. This is the ﬁrst time that the International Court of Justice (or its
predecessor) has rejected a case outright on the ground that there was no
dispute at the time the Application was lodged. In determining whether
there was then a dispute, the Judgment imposes a new requirement of
“objective awareness”, which I shall use as a shorthand for the rather
awkward phrase “aware, or could not have been unaware” (Judgment,
para. 38). But a requirement of objective awareness is not to be found in
the case law of the Court. The established test for a dispute does not
require a high formal threshold to be met, nor an analysis of that indeﬁ-
nite object, the state of mind of a State. It simply requires, as the Perma-
nent Court put it early on, a “conﬂict of legal views or of interests”
(Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J.,
Series A, No. 2, p. 11). A more recent formulation is that one party’s
claim must be “positively opposed by the other” (South West Africa,
(Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objec-
tions, Judgment, I.C.J. Reports 1962, p. 328; see Judgment, para. 34).

  2. In this opinion, I ﬁrst discuss the case law on the meaning of “dis-
pute” within Article 36 (2) of the Court’s Statute. The key point is that
the test for a dispute has always been a minimum one, not a demanding
threshold. The Court has been ﬂexible about the ways in which it can be
satisﬁed, and has referred to post-application conduct for various pur-
poses of jurisdiction and admissibility. In the case of what I will term a
“multilateral dispute”, such ﬂexibility is particularly called for. I will then

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explain why, applying this test, a dispute existed here between the Mar-
shall Islands and Pakistan at the time the Application was lodged.

                  II. The Threshold for a “Dispute”
               and the Objective Awareness Requirement

   3. The case law of the Court and its predecessor clearly shows that the
threshold for establishing a dispute is a low one. In Certain German Inter-
ests in Polish Upper Silesia, the Permanent Court held that “a diﬀerence
of opinion does exist as soon as one of the Governments concerned points
out that the attitude adopted by the other conﬂicts with its own views . . .
this condition could at any time be fulﬁlled by means of unilateral
action on the part of the applicant Party” (Certain German Interests
in Polish Upper Silesia, Jurisdiction, Judgment No. 6, 1925, P.C.I.J.,
Series A, No. 6, p. 14). Similarly, in the Factory at Chorzów case, the
Court stated

      “that it cannot require that the dispute should have manifested itself
      in a formal way; according to the Court’s view, it should be suﬃcient
      if the two Governments have in fact shown themselves as holding
      opposite views in regard to the meaning or scope of a judgment
      of the Court” (Interpretation of Judgments Nos. 7 and 8 (Factory at
      Chorzów), Judgment No 11, 1927, P.C.I.J., Series A, No. 13, p. 11).
In East Timor, this Court reasoned simply, “Portugal has, rightly or
wrongly, formulated complaints of fact and law against Australia which
the latter has denied. By virtue of this denial, there is a legal dispute.”
(East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995,
p. 100.) In none of these cases was there any analysis of whether the
respondent was aware of the applicant’s claim before it was ﬁled. The
rationale behind requiring a legal dispute is to ensure that the Court has
something to determine: it protects the Court’s judicial function which, in
a contentious case, is to determine such disputes.

  4. The Court now adopts a requirement of objective awareness, but for
no persuasive reason. It relies heavily on a judgment which had not been
delivered at the time of oral argument in this case: Alleged Violations of
Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicara-
gua v. Colombia), Preliminary Objections, Judgment of 17 March 2016.
But that decision is not authority for the objective awareness require-
ment: the Court simply observed that, as a matter of fact, Colombia knew
of the existence of the dispute. It said:

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796      nuclear arms and disarmament (diss. op. crawford)

         “The Court notes that, although Nicaragua did not send its formal
      diplomatic Note to Colombia in protest at the latter’s alleged viola-
      tions of its maritime rights at sea until 13 September 2014, almost ten
      months after the ﬁling of the Application, in the speciﬁc circumstances
      of the present case, the evidence clearly indicates that, at the time
      when the Application was ﬁled, Colombia was aware that its enact-
      ment of Decree 1946 and its conduct in the maritime areas declared
      by the 2012 Judgment to belong to Nicaragua were positively opposed
      by Nicaragua. Given the public statements made by the highest rep-
      resentatives of the Parties . . . Colombia could not have misunder-
      stood the position of Nicaragua over such diﬀerences.” (Preliminary
      Objections, Judgment, I.C.J. Reports 2016 (I), pp. 32-33, para. 73.)

   5. At no point did the Court say that awareness was a legal require-
ment. Rather it repeated that it must objectively determine whether there
is a dispute based on “an examination of the facts. The matter is one of
substance, not of form” (ibid., p. 27, para. 50). It is instructive to compare
this short statement of law on the requirement of a dispute with the
lengthy statement in the present case (Judgment, paras. 33-40), which
eﬀectively transforms a non-formalistic requirement into a formalistic
one through the use of the term “awareness”.

   6. While the term “awareness” has sometimes been used in other cases
in deciding whether there was a dispute, it has never been stated as a legal
requirement, only as a description of the factual situation (see, e.g., Appli-
cation of the International Convention on the Elimination of All Forms of
Racial Discrimination (Georgia v. Russian Federation), Preliminary Objec-
tions, Judgment, I.C.J. Reports 2011 (I), pp. 109-110, para. 87; Certain
Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections,
Judgment, I.C.J. Reports 1992, p. 253, para. 30). Awareness is relevant as
a matter of fact in determining whether a dispute exists. But that does not
mean that it is a necessary legal component without which a dispute can-
not exist.

                   III. The Court’s Flexible Approach
               to the “Dispute” Requirement: in Principle

   7. In its earlier case law, the Court has shown ﬂexibility in deciding on
the existence and scope of a dispute. Mavrommatis marks the beginning
of this tradition, holding that “[t]he Court, whose jurisdiction is interna-
tional, is not bound to attach to matters of form the same degree of
importance which they might possess in municipal law” (Mavrommatis

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797       nuclear arms and disarmament (diss. op. crawford)

Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2,
p. 34). I pause to note that this generalized reference to municipal law is
hardly accurate today. While approaches to civil jurisdiction and civil
process of course vary, they are undoubtedly less formalistic than they
were 90 years ago 1. But the Court appears to be proceeding in the oppo-
site direction.

  8. The ﬂexibility principle was best expressed in its modern form in
Croatia v. Serbia:
        “However, it is to be recalled that the Court, like its predecessor,
      has also shown realism and ﬂexibility in certain situations in which
      the conditions governing the Court’s jurisdiction were not fully satis-
      ﬁed when proceedings were initiated but were subsequently satisﬁed,
      before the Court ruled on its jurisdiction.” (Application of the Con-
      vention on the Prevention and Punishment of the Crime of Genocide
      (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports
      2008, p. 438, para. 81, hereinafter “Croatia v. Serbia”.)
This has led the Court to adopt a broad discretion, applied in Mavrom-
matis Palestine Concessions and in many cases since, which allows it to
overlook defects in the application when to insist on them would lead to
circularity of procedure. This was formulated in Croatia v. Serbia in the
following terms:
         “What matters is that, at the latest by the date when the Court
      decides on its jurisdiction, the applicant must be entitled, if it so
      wishes, to bring fresh proceedings in which the initially unmet condi-
      tion would be fulﬁlled. In such a situation, it is not in the interests of
      the sound administration of justice to compel the applicant to begin
      the proceedings anew — or to initiate fresh proceedings — and it is
      preferable, except in special circumstances, to conclude that the
      condition has, from that point on, been fulﬁlled.” (Ibid., p. 441,
      para. 85.)
   9. Accordingly, the Court applied the Mavrommatis principle (as I will
call it) and decided to proceed to the merits, even though the Respondent,
Serbia, was not a member of the United Nations, and thus Article 35 (1)
of the Court’s Statute was not satisﬁed at the time Croatia ﬁled its Appli-
cation. This condition was subsequently met by Serbia’s admission to the
United Nations. The decision is all the more remarkable in that it applies
the Mavrommatis principle to a situation where, because of a subsequent
Serbian reservation to Article IX of the Genocide Convention, it was
likely no longer open to the applicant State to recommence proceedings.
It was enough that, at some time in the interim, the applicant could have
re-ﬁled its application (see the separate opinion of Judge Abraham, ibid.,

  1 See, e.g., J. A. Jolowicz, On Civil Procedure (Cambridge University Press, 2000), esp.

Chaps. 2, 17.

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pp. 539-542, paras. 49-55). Evidently the decision puts the emphasis on
the “sound administration of justice”, prioritizing substance over form
(Croatia v. Serbia, p. 442, para. 87).

   10. The Court in the present case discards this tradition of ﬂexibility.
As well as insisting on a stringent requirement of “awareness”, it departs
from past holdings that “the Court must in principle decide the question
of jurisdiction on the basis of the conditions that existed at the time of the
institution of the proceedings” (Croatia v. Serbia, p. 438, para. 80 (empha-
sis added)); see also Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugosla-
via), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 613,
para. 26); Application of the International Convention on the Elimination of
All Forms of Racial Discrimination (Georgia v. Russian Federation), Pre-
liminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 85, para. 30).
The words “in principle” allow for some nuance in the application of the
rule. By contrast, the approach of the majority would give no meaning
to them.
   11. None of the cases dealing with the question of a dispute has treated
the date of the application as fatal. Rather, the Court has relaxed the
rule, referring to evidence before the date of the application and to the
position of the parties during the proceedings without distinction, or rely-
ing only on the position of the parties during the proceedings, even
though pre-application evidence was available (see East Timor (Portu-
gal v. Australia), Judgment, I.C.J. Reports 1995, p. 99, para. 22; Certain
Property (Liechtenstein v. Germany), Preliminary Objections, Judgment,
I.C.J. Reports 2005, p. 19, para. 25). While the Court here rejects the
Marshall Islands’ reliance on Certain Property with the explanation that
the “dispute was clearly referenced by bilateral exchanges between the
parties prior to the date of the application” (Judgment, para. 50), the
Court in that case was clear that the conclusion that there was a dispute
was reached solely on the basis of the statements made “in the present
proceedings”, and that the position of Germany in a letter and in bilateral
consultations was only of “evidentiary value in support of the proposition
that Liechtenstein’s claims were positively opposed by Germany and that
this was recognized by the latter” (Certain Property (Liechtenstein v. Ger-
many), Preliminary Objections, Judgment, I.C.J. Reports 2005, p. 19,
para. 25; emphasis added). In Land and Maritime Boundary between Cam-
eroon and Nigeria, the Court held there was a broader dispute between the
parties by reference to Nigeria’s equivocation with respect to the Camer-
oonian claim (pre- and post-application) and in particular its answer to a
question asked by a judge at the oral hearing (Preliminary Objections,
Judgment, I.C.J Reports 1998, pp. 316-317, paras. 91, 93). The Judgment
here also fails to explain its departure from Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Bosnia and

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799       nuclear arms and disarmament (diss. op. crawford)

Herzegovina v. Yugoslavia). While the Court in that case was focused on
whether the dispute fell within the scope of the compromissory clause, it
could not get to this question before ﬁrst determining that there was such
a dispute, which it did so solely on the basis of post-application conduct:
“by reason of the rejection by Yugoslavia of the complaints formulated
against it by Bosnia and Herzegovina, ‘there is a legal dispute’ between
them” (Preliminary Objections, Judgment, I.C.J. Reports 1996 (II),
pp. 614-615, paras. 28-29; see Judgment, para. 50).

   12. Commentators on the Statute endorse the ﬂexible view. According
to Rosenne, the Court’s jurisdiction must normally be assessed as at the
date of the ﬁling of the Application instituting the proceedings, but he
and Kolb both agree that the Mavrommatis principle applies to the ques-
tion whether a dispute exists as at the critical date.

         ““The Court will not allow itself to be hampered by a mere defect
      of form the removal of which depends solely on the party concerned,
      for example where proceedings are instituted shortly before the entry
      into force of the title of jurisdiction for the parties concerned, so that
      a new application in identical terms could be ﬁled after the relevant
      date had come.” (Shabtai Rosenne, The Law and Practice of the Inter-
      national Court: 1920-2005, (4th ed., 2006), pp. 510-511.)

Similarly, Kolb says:
      “before the parties seise the Court, there must at least be the begin-
      nings of a dispute. The deﬁnitive dispute can, however, crystallize
      later, in the course of the proceedings. And it can equally well be
      modiﬁed or evolve as the case progresses.

       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
         It is certainly right to say that the institution of proceedings does
      not automatically create a dispute. If it did, the distinct requirement
      that a dispute exists would be devoid of all justiﬁcation and value.

       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
         [T]he Mavrommatis principle discussed above also applies . . . It
      remains necessary to consider whether the conditions for bringing a
      case are satisﬁed at the moment the case is brought to the Court,
      although ‘it would always have been possible for the applicant to
      re-submit his application in the same terms after.’. . . It is however,
      unnecessary to oblige the claimant to start again the case by a new

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      application, for want of a dispute at the initial critical date. This
      would be an excessively formalistic exercise, with no signiﬁcant eﬀects
      except to increase the administrative burden on the Court and the
      parties.” (Robert Kolb, The International Court of Justice (2013),
      p. 315.)
   13. Since 1922, there have been three occasions on which the absence
of a dispute has resulted in the Court or its predecessor determining that
it could not hear part of a claim. In each, there had been prior correspon-
dence or statements but the applicant later sought to add other issues or
claims. In such a case, it was open for the Court to focus on what the
parties had previously treated as the gist of the dispute. The absence of
any discussion of the additional claim, in a context in which the parties
were conducting bilateral discussions on a closely related matter, showed
that there was in truth no dispute over the additional claim.

   14. In Electricity Company of Sofia, the Permanent Court considered
that the claim by Belgium against a Bulgarian tax was inadmissible (Elec-
tricity Company of Sofia and Bulgaria [Belgium v. Bulgaria], Preliminary
Objection, 1939, P.C.I.J., Series A/B, No. 77, p. 83). In that case, there
had been a letter sent by Belgium to Bulgaria on 24 June 1937 clearly
notifying it of the other matters that were ultimately brought to the Court
but ignoring the tax claim. In that context, it was open to the Court to
determine that there was no dispute on the additional issue.

   15. In Belgium v. Senegal, the Court determined that there was no dis-
pute as to whether Senegal had breached a customary international law
obligation to bring criminal proceedings against Mr. Habré for crimes of
humanity allegedly committed by him, including torture, war crimes and
genocide. The Court concluded that “[i]n the light of the diplomatic
exchanges between the Parties . . . the Court considers that such a dispute
did not exist on that date”. (Questions relating to the Obligation to Pros-
ecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports
2012 (II), p. 444, para. 54.) In particular, it noted that those exchanges
did not refer to any customary international law obligation, but only to
the treaty obligation under the Convention against Torture. Moreover, in
a Note Verbale sent two months before ﬁling its Application, Belgium did
not mention any customary international law obligation, even though the
Note Verbale otherwise set out clearly the dispute between the parties
“regarding the application and interpretation of the obligations resulting
from the relevant provisions of the [Convention against Torture]” (ibid.,
p. 445, para. 54). Belgium had thus used the diplomatic channel to deﬁne
the subject-matter and scope of its dispute with Senegal. In this context,
it was open for the Court to infer that there was no dispute on the addi-
tional issue. Moreover, there was no need for the Court to apply a ﬂexible
approach, since it had already determined that it had jurisdiction over the

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treaty dispute as to the obligation to charge or extradite Mr. Habré,
a matter closely related to the alleged customary international law
obligation.

   16. More recently, in Alleged Violations of Sovereign Rights and Mari-
time Spaces in the Caribbean Sea, the Court held that there was no dis-
pute over Nicaragua’s claim that Colombia had violated Article 2 (4) of
the United Nations Charter and the customary international law obliga-
tion prohibiting the use or threat of use of force. The Court there had
relied on statements made by the highest representatives of the Parties to
support its conclusion that a closely related dispute existed over Colom-
bia’s alleged breaches of Nicaragua’s maritime rights (Alleged Violations
of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicara-
gua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016
(I), pp. 31-33, paras. 69, 73). As to the use of force, the Court stressed
that Nicaraguan oﬃcials had expressly said that there was no issue, stat-
ing just eight days before the application was ﬁled that the two countries
“have not had any conﬂicts in those waters” (ibid., p. 33, para. 76). Tak-
ing into account the conduct of the parties, it was open for the Court to
conclude that no such dispute existed. As in Belgium v. Senegal, the Court
may also have been inﬂuenced by the fact that the substance of the dis-
pute as to the maritime rights of Nicaragua in the Caribbean Sea would
be dealt with, so that it was not necessary to apply the Mavrommatis
principle to ﬁnd that a dispute had subsequently come into existence.

   17. Moreover, as the Court says here (but does not seem to apply),
there is no requirement for formal notiﬁcation. This was conﬁrmed by the
Court in Alleged Violations of Sovereign Rights and Maritime Spaces in
the Caribbean Sea, where it rejected Colombia’s argument based on the
failure of Nicaragua to notify it through diplomatic channels (Alleged
Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea
(Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports
2016 (I), p 32, para. 72).

   18. The Court here relies on the series of cases discussed above to bol-
ster its conclusion and also relies on Georgia v. Russian Federation.
Although this case is in line with the recent rise of formalism, it cannot be
seen in the same terms as the Optional Clause cases. It involved a set of
speciﬁc issues in relation to the Convention for the Elimination of Racial
Discrimination (CERD), notably its compromissory clause, Article 22,
which provides:

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802      nuclear arms and disarmament (diss. op. crawford)

         “Any dispute between two or more States parties with respect to
      the interpretation or application of this Convention, which is not set-
      tled by negotiation or by the procedures expressly provided for in this
      Convention, shall, at the request of any of the parties to the dispute,
      be referred to the International Court of Justice for decision, unless
      the disputants agree to another mode of settlement.”

That clause stipulates a requirement of prior negotiation and/or other
procedures (including arbitration) before the “dispute” can be submitted
to the Court. Evidently the dispute must have existed, and have been the
subject of negotiation, before that time. Moreover, in Georgia v. Russian
Federation there could be no doubt that a long-standing dispute existed
between the parties. Rather, the doubt was whether that dispute really
concerned racial discrimination, however broadly deﬁned, or whether
Article 22 was being used as a device to bring a wider set of issues before
the Court.

                       IV. Multilateral Disputes

  19. In the present case, the Marshall Islands does not suggest that
there were any of the normal indicators of a bilateral dispute, most obvi-
ously because there had not been any correspondence between the States
or any bilateral discussion on the subject. Rather it argues that a dispute
had arisen through statements made in multilateral fora.

  20. South West Africa (preliminary objections) is crucial in this regard.
There, the Court held that:
      “diplomacy by conference or parliamentary diplomacy has come to
      be recognized in the past four or ﬁve decades as one of the established
      modes of international negotiation. In cases where the disputed ques-
      tions are of common interest to a group of States on one side or the
      other in an organized body, parliamentary or conference diplomacy
      has often been found to be the most practical form of negotiation.
      The number of parties to one side or the other of a dispute is of no
      importance; it depends upon the nature of the question at issue. If it
      is one of mutual interest to many States, whether in an organized
      body or not, there is no reason why each of them should go through
      the formality and pretence of direct negotiation with the common
      adversary State after they have already fully participated in the col-
      lective negotiations with the same State in opposition.” (South West
      Africa, (Ethiopia v. South Africa; Liberia v. South Africa), Prelimi-
      nary Objections, Judgment, I.C.J. Reports 1962, p. 346.)

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That case involved a requirement for prior negotiation in the relevant
compromissory clause. But the passage cited is also authority for the
broader point that disputes can crystallize in multilateral fora involving a
plurality of States. The Court in 1962 was sharply divided between those
holding that a dispute in a multilateral framework is simply an aggregate
of disputes, each to be assessed in its own right, and a broader view that
some disputes can be genuinely multilateral. In the present Judgment, the
Court does not deny that a dispute between two States may be demon-
strated by multilateral exchanges, but it states that they must demonstrate
that the claim of one party is opposed by the other (Judgment, paras. 36,
45). No doubt any multilateral dispute must ultimately be ﬁtted within
the bilateral mode of dispute settlement. But this does not require the
Court to treat the underlying relations as bilateral ab initio.

   21. It is now established — contrary to the inferences commonly drawn
from the merits phase of South West Africa — that States can be parties
to disputes about obligations in the performance of which they have no
speciﬁc material interests. This much is clear from Article 48 of the Inter-
national Law Commission’s Articles on the Responsibility of States for
Internationally Wrongful Acts (ILC Articles). It is the case here, notwith-
standing the Marshall Islands’ historic connection as the location of
nuclear weapons testing by the United States, and the resulting concerns
of its Government and people about nuclear issues. The importance of
the South West Africa cases lies in the recognition that a multilateral dis-
agreement can crystallize for adjacent purposes as a series of individual
disputes coming within the Statute.

   22. Finally, I should say a word about Article 43 of the ILC Articles,
on which both India and the United Kingdom relied, although it was not
mentioned by Pakistan (which elected not to make oral submissions). The
ILC’s Commentary conﬁrms that Article 43 does not address the jurisdic-
tion of courts or the admissibility of disputes. It nonetheless deals with an
analogical question: notice in relation to a claim of responsibility of a
State. But there is nothing in the Commentary that prevents such notice
being given by ﬁling an application. Article 43 is not a pre-notiﬁcation
requirement, it is a notiﬁcation requirement.

  23. The ILC Commentary relies in part on Certain Phosphate Lands to
support the idea that there is ﬂexibility in how notiﬁcation may occur
(Certain Phosphate Lands in Nauru, (Nauru v. Australia), Preliminary
Objections, I.C.J. Reports 1992, p. 240). According to paragraph (4) of
the Commentary on Article 43, “it is not the function of the articles to
specify in detail the form which an invocation of responsibility should

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804        nuclear arms and disarmament (diss. op. crawford)

take” 2. Nothing in Certain Phosphate Lands supports the proposition
that a dispute must be notiﬁed (or that the respondent must be objectively
aware of it) before it can be said to exist. Australia did not contest that
the dispute existed, rather it queried whether the dispute had been
submitted within a reasonable time, and sought to infer that Nauru’s
rehabilitation claim had been waived. In that context, it was relevant
that Nauru had taken steps (limited and informal) to bring the matter
again to Australia’s attention.

                                V. The Present Case

   24. Turning to the present case, I share the Court’s view that a dispute
cannot be created simply by the ﬁling of an application (see Judgment,
paras. 40, 50) because otherwise the requirement that a dispute exist
would be completely nulliﬁed. Rather, the question is whether enough of
the dispute was in existence prior to the Application here and whether the
Court has enough ﬂexibility to recognize it as a dispute.
   25. To put it at its lowest, there was an incipient dispute between the
Marshall Islands and the nuclear-weapon States at the time of Nayarit.
This was not an accidental development, but the expression of a real
underlying disagreement of a legal character as to the trajectory of Arti-
cle VI and a corresponding legal obligation at customary international
law (if one exists). The Marshall Islands is a very small State, with com-
pelling individual interests vis-à-vis several of the nuclear-weapon States.
But by the time of Nayarit, by stages, tentatively, but in time, the Mar-
shall Islands had associated itself with one side of that multilateral dis-
agreement, revealing suﬃciently for present purposes a claim in positive
opposition to the conduct and claims of the nuclear-weapons States,
including the respondent State.

   26. The Court here says the Nayarit statement was insuﬃcient because
(i) it did not name the opposing States, (ii) it did not specify the conduct
that had given rise to the alleged breach by the Respondent, and (iii) it
was delivered in a context not strictly relating to nuclear disarmament,
since the title of the Conference was the “Humanitarian Impact of
Nuclear Weapons”, such that nothing can be inferred from the lack of
reply by Pakistan (Judgment, paras. 45, 47, 55). These arguments impose
too high a threshold for determining the existence of a dispute. There is
no doubt that Pakistan is one of the “States possessing nuclear weapons”:
Pakistan publicly acknowledges that it has such weapons. Moreover, in a

  2   The ILC rejected the Special Rapporteur’s proposal that notiﬁcation be in writing.

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context in which the very scope of Article VI of the NPT and a corre-
sponding customary international law obligation is the subject-matter of
a disagreement articulated by a group of States, the Marshall Islands
should not be required at this stage to particularize further the speciﬁc
steps Pakistan should take or have taken. Finally, the Conference title
itself included the words “Nuclear Weapons”; and one of its purposes
was to discuss nuclear disarmament in order to prevent the devastating
humanitarian impacts that nuclear weapons could cause. This is an
appropriate multilateral context, and it does not dilute the force of what
the Marshall Islands said, which was not limited to a single forgettable
sentence:

         “As stated by representatives of our Government during the
      High-Level Meeting on Nuclear Disarmament, the United Nations
      must stop the spread of nuclear weapons, while securing peace in a
      world without nuclear weapons. We urgently renew our call to all
      states possessing nuclear weapons to intensify eﬀorts to address their
      responsibilities in moving towards an eﬀective and secure disarma-
      ment.
         It has been almost 68 years since the General Assembly in its very
      ﬁrst resolution established a mechanism for the elimination from
      national arsenals of nuclear weapons and other weapons adaptable
      to mass destruction. It has been more than 45 years since the
      conclusion of the Treaty on Non-Proliferation of Nuclear Weapons.
      Yet today, we still fear the day where we are forced to relive the
      horrors. We do not want other people to suﬀer the same consequences
      we did!

         Mr. Chairman, the Marshall Islands is convinced that multilateral
      negotiations on achieving and sustaining a world free of nuclear
      weapons are long overdue. Indeed we believe that States possessing
      nuclear arsenals are failing to fulﬁl their legal obligations in this
      regard. Immediate commencement and conclusion of such negotia-
      tions is required by legal obligation of nuclear disarmament resting
      upon each and every State under Article VI of the Non Proliferation
      Treaty and customary international law. It also would achieve the
      objective of nuclear disarmament long and consistently set by the
      United Nations, and fulﬁl our responsibilities to present and future
      generations while honouring the past ones.”

   27. It is not necessary — and indeed would be inappropriate at this
stage — to go into the substance of the conﬂict over Article VI of the
NPT. However, the fact of that conﬂict is public knowledge, to which the
Court need not be blind. Thus, for instance, the “New Agenda” Coali-
tion, which currently comprises Brazil, Egypt, Ireland, Mexico, New Zea-

257

806      nuclear arms and disarmament (diss. op. crawford)

land and South Africa, has, at least since 2013, condemned the failure by
all State parties, particularly the nuclear-weapon States, to comply with
the obligation to pursue in good faith and bring to a conclusion negotia-
tions leading to nuclear disarmament in all its aspects under strict and
eﬀective international control. A 2014 Working Paper stated that it was
“not acceptable” that the nuclear-weapon States

      “have refused to engage in or support meaningful discussions about
      the humanitarian impact of nuclear weapons, the follow-up process
      to the high-level meeting of the General Assembly on nuclear disar-
      mament, or the Open-ended Working Group on taking forward
      nuclear disarmament negotiations” 3.

The statement of the Marshall Islands should be viewed in the context of
this broader multilateral disagreement.
  28. For these reasons, in my view there was, as at the date of the Appli-
cation in the present case, a dispute between the Marshall Islands and the
respondent State as to the latter’s compliance with Article VI of the NPT.
That being so, it is unnecessary to consider whether any deﬁciency in that
regard can and should be remedied in the exercise of the Mavrommatis
discretion, recognized in Croatia v. Serbia.

                    VI. The MONETARY GOLD Principle

   29. Finally, I should say something about what was perhaps the most
plausible of the other objections to jurisdiction and admissibility made by
the Respondent. This is the proposition that the Court lacks competence
in a contentious case between State A and State B to determine that an
extant third State, State C, is in breach of its legal obligations; if the case
cannot be decided in consequence, because State C has not consented to
jurisdiction, State A’s claim is inadmissible. That proposition, originating
in Monetary Gold, is now well-established (Monetary Gold Removed from
Rome in 1943 (Italy v. France; United Kingdom and United States of
America), Preliminary Question, I.C.J. Reports 1954, p. 32; see also:
Military and Paramilitary Activities in and against Nicaragua (Nicaragua
v. United States of America), Jurisdiction and Admissibility, Judgment,
I.C.J. Reports 1984, p. 431, para. 88; Land, Island and Maritime Frontier

   3 Preparatory Committee for the 2015 Review Conference of the Parties to the Treaty

on the Non-Proliferation of Nuclear Weapons, 2 April 2014, available at: http://www.
reachingcriticalwill.org/images/documents/Disarmament-fora/npt/prepcom14/documents/
WP18.pdf, last visited, 14 September 2016.

258

807     nuclear arms and disarmament (diss. op. crawford)

Dispute (El Salvador/Honduras), Application for Permission to Intervene,
Judgment, I.C.J. Reports 1990, pp. 114-116, paras. 54-56; Certain Phos-
phate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judg-
ment, I.C.J. Reports 1992, pp. 259-262, paras. 50-55; East Timor
(Portugal v. Australia) Judgment, I.C.J. Reports 1995, pp. 104-105,
paras. 34-35). The case law has however set ﬁrm limits to the Mon-
etary Gold principle. It applies only where a determination of the legal
position of a third State is a necessary prerequisite to the determination
of the case before the Court (see: Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia),
Judgment, I.C.J. Reports 2015 (I), pp. 57-58, para. 116). An inference or
implication as to the legal position of that third State is not enough: its
position is protected by Article 59 of the Statute (Certain Phosphate Lands
in Nauru (Nauru v. Australia), Preliminary Objections, Judgment,
I.C.J. Reports 1992, pp. 260-262, paras. 54-55).

   30. The Monetary Gold ground of inadmissibility is particularly sensi-
tive to the precise basis of the Applicant’s claim. The decision of a given
case may or may not rest on a prior determination of the legal position of
a third State depending on how the case is put. In the present case, Mon-
etary Gold may well impose limits on the consequences that can be drawn
from the Respondent’s conduct, if indeed it is held to involve a breach of
international law. But precisely what those limits are will depend on the
ground of decision. It is true, for example, that the Court cannot order
third States to enter into negotiations, and that one cannot negotiate
alone. But a third State could breach an obligation to negotiate by its
own conduct and the Court could determine as much. Everything depends
on what the precise scope and application of Article VI of the NPT, or
any parallel customary international law obligation, entail. This is at the
heart of the dispute in the present case. But these are all issues for the
merits.

                                           (Signed) James Crawford.

259


DISSENTING OPINION OF JUDGE BASDEVANT
[Translation]

I greatly regret that I am able only to concur in part with
the operative portion of the Judgment, and as I also disagree
with the way in which the Court arrives at its decision, I think
that I should indicate my main reasons for my view and the
conclusions which I draw from those reasons.

*
* *

The United Kingdom filed an objection to the jurisdiction in
answer to the Application submitted by the Hellenic Government
on April gth. 1951. This objection to the jurisdiction was expressed
in brief terms, but in terms having a very wide scope, by the
United Kingdom Agent at the hearing in Court on May,17th, 1952.
The course of the arguments made it clear that this objection to
the jurisdiction met a twofold claim by the Hellenic Government.
The Jatter Government asked the Court, in the first place, to
deal with the merits of a claim by that Government regarding
the treatment of M. Ambatielos by the British authorities and,
secondly, to decide as to the obligation to refer this claim to the
arbitration provided for by the Protocol of November roth, 1886.

It is in this order that the validity of the Preliminary Objection
raised by the United Kingdom should be considered. If the Court
should find that it has yurisdiction to deal itself with the Ambatielos
claim and if it accordingly retains this claim for its consideration,
the request for a declaration that the claim must be referred to
the arbitration provided for in the Protocol of 1886 becomes devoid
of object and therefore the challenge to the jurisdiction to which
it gave rise need not be further considered,

+ * «

In accordance with the principle laid down by the Court in
other cases (1.C.J. Reports 1949, pp. 177-178, and 1956, p. 71),
which is not disputed in the present case, the jurisdiction of the
Court depends upon the consent of the States parties to the
dispute. Therefore, since no special agreement has been concluded,
we are here concerned with Article 29 of the Treaty of July 16th,
1926, between Greece and the United Kingdom, the only text
relied upon as conferring jurisdiction upon the Permancnt Court.
of International Justice so far as these two States are concerned ;
such a conferring of jurisdiction has now been extended to the
International Court of Justice by the operation of Article 37
of the Statute of the Court.

45
DISSENTING OPINION OF JUDGE BASDEVANT 67

Article 29 of the Treaty of 1926 confers upon the Court juris-
diction to decide any disputes that may arise between the
contracting parties ‘‘as to the proper interpretation or application
of any of the provisions of the present Treaty”. The facts which
the Hellenic Government submits for the Court’s decision as to
their conformity, or otherwise, with the United Kingdom’s inter-
national obligations, occurred before the conclusion of the Treaty
of 1926. The complaints which the Hellenic Government seeks
to base upon these facts cannot be judged upon the basis of
obligations flowing from the Treaty of 1926. These complaints
are therefore outside the sphere of applicability of Article 29:
this Article provides no ground entitling the Court to deal with
them.

The fact that the Treaty of 1926 is said to contain provisions
more or less similar to those of the Treaty of 1886 cannot make
the provisions of the Treaty of 1926 applicable to facts which
occurred before the coming into force of this Treaty, and thus
extend to such facts the effect of Article 29, the only provision
conferring jurisdiction on the Court.

The Declaration which follows the Treaty of 1926 shows the
correctness of this conclusion. That Declaration refers to differences
as to the validity of claims based on the Treaty of 1886. The
Hellenic Government contends that the Ambatielos claim is one
of the claims referred to in the Declaration of 1926 ; there is no
need to decide as to the correctness of this contention, for it is
sufficient to observe that the Declaration provides, for the settle-
ment of differences relating to such claims, the arbitral procedure
created by the Protocol of 1886; it does not substitute judicial
proceedings before the Court for this procedure. Furthermore,
the Greek Legation in London stated in a note of August 6th,
1940 : “The Arbitral Committee provided for by the final Protocol
of the Greco-British Commercial Treaty of 1886 is the only com-
petent authority in the matter.”

The Court therefore has no jurisdiction to deal with the merits
of the Ambatielos claim as formulated in paragraph I of ‘the
Conclusions presented on behalf of the Hellenic Government at
the hearing of May 17th.

*
* *

Having no jurisdiction to deal with the Greek claim relating
to the treatment of Ambatielos, the Court is confronted by another
aspect of the dispute. The Hellenic Government asked that the
Ambatielos case should be referred to the arbitral procedure
established by the Protocol of 1886 ; the United Kingdom Govern-
ment refused. The Hellenic Government then asked the Court
to say that this arbitral procedure should be applied in this case.
This second dispute, which thus relates to the existence in this

40
DISSENTING OPINION OF JUDGE BASDEVANT 68

case of an obligation to have recourse to the arbitral procedure
of the Protocol of 1886, has been described in different terms in
the course of the proceedings, and the jurisdiction of the Court
to deal with it is disputed by the United Kingdom. The Court
must therefore decide whether it has jurisdiction to deal with
this point.

In the Conclusions submitted in its Counter-Memorial, the
United Kingdom has employed an abstract form for the statement
of its objection to the jurisdiction. The Court cannot deal with
a submission so formulated. It has before it a concrete claim
that it should state whether the United Kingdom is under an
obligation to accept the submission to arbitration of the Hellenic
claim relating to the Ambatielos case. The Court has to determine
whether it is competent to adjudicate upon the existence of such
an obligation in the present case.

The obligation which the Hellenic Government asks the Court
to find in this case derives from the Protocol of 1886, which
provides for the submission to a Commission of Arbitration, con-
stituted by the two Governments, in each case, for this purpose, of
disputes arising between them respecting the interpretation or
the execution of the Treaty of 1886, or the consequences of any
violation thereof. The Hellenic Government requested that its
claim in the Ambatielos case should be submitted to arbitration ;
the United Kingdom Government refused, and the arbitration
clause of the Protocol of 1886 therefore did not take effect.

There was thus an example of the gap existing in the machinery
of an arbitration clause which, as is frequently the case, can only
become effective as the result of the joint action of the two States
in conflict : in this case such joint action was necessary for the
constitution of the Commission of Arbitration. Where one of the
States adopts the view that the case is not one calling for arbi-
tration, the operation of the arbitration clause becomes impossible.
This gap, which exists also in respect of other treaty provisions,
has manifested itself in other cases besides the present one.
Attempts have at times been made to fill this gap. One such
attempt was made in Article 53 of The Hague Convention I of
October 18th, 1907, a provision which has however been made
inoperative, so far as they were concerned, by a number of States,
including Greece, by means of a reservation.

The Protocol of 1886 left the gap unfilled. It does not itself
provide any remedy for this defect. The Hellenic Government
contends that a remedy is provided by Article 29 of the Treaty
of 1926, and the Declaration following this Treaty, on the ground
that the Court, by virtue of these texts, has jurisdiction to decide
whether the Ambatielos claim should be submitted to arbitration
in application cf the Protocol of 1886. According to this argument,
Article 29 and the Declaration of 1926 impliedly added to the
undertaking to arbitrate given in 1886 a further clause conferring

47
DISSENTING OPINION OF JUDGE BASDEVANT 69

jurisdiction on the Court to adjudicate upon disputes arising
with regard to the interpretation or the application of the arbi-
tration clause in the Protocol of 1886.

The Declaration of 1926 provides that any differences which
may arise between the two Governments as to the validity of
claims on behalf of private persons based on the provisions of
the Treaty of 1886 ‘‘shall, at the request of either Government,
be referred to arbitration in accordance with the provisions of
the Protocol of November 1oth, 1886”. Article 29 of the Treaty
of 1926 confers jurisdiction on the Court to deal with disputes
as to the interpretation or application “‘of any of the provisions
of the present Treaty”. It was contended, on behalf of the Hellenic
Government, that the Declaration of 1926 was an integral part
of the Treaty of the same date, that what was therein provided
was to be regarded as a provision of that Treaty, that, conse-
quently, a dispute as to the interpretation or application of the
Declaration was within the jurisdictional clause contained in
Article 29 and that thus a way was opened for the admission
of the Court’s jurisdiction to decide as to the interpretation or
application of the arbitration clause contained in the Protocol
of 1886 and referred to in the Declaration of 1926.

Underlying this argument is the idea that the Declaration is
an integral part of the Treaty of 1926, that it is a provision of
this Treaty. If this proposition be not accepted, the whole argument
founded upon it falls to the ground, for the Declaration makes
no reference to the Court and does not directly confer any juris-
diction upon it.

In order to determine whether the Declaration is or is not
part of the Treaty, the Parties presented lengthy arguments
concerning the external features of the Declaration in relation
to the Treaty of 1926, the references that have been made to
both of them, and-the place attributed to them in the documents
connected with them. For a proper appreciation of the significance
which ought to be attributed to any factor of this nature a pre-
liminary observation is called for.

The drafting and the signature of an international agreement
are the acts by means of which the will of the contracting States
is expressed ; ratification is the act by which the will so expressed
is confirmed by the competent authority, for the purpose of
giving it binding force. All these acts are concerned with the
substance itself of an international agreement. But the recording
of these acts in the instruments which are designed to give them
material existence involves the physical operations of writing,
printing, transmission by one party to the other, etc., operations
which do not contribute to the formation of the will of the
contracting States ; those who have the task of forming, expressing
or confirming this will, do not, as a rule, take part in these physical
operations ; these operations commonly take a form deriving from

48
DISSENTING OPINION OF JUDGE BASDEVANT 70

tradition, which is followed scrupulously, and therefore blindly,
by the officials entrusted with this material task. It would be
wrang to attribute to the details of form thus superimposed upon
the juridical act of the conclusion of a treaty any determining
influence, when it becomes necessary, in case of doubt, to ascertain
the true meaning of the agreement which has been reached, the
character which the parties intended to give to any given agreement
concluded between them.

The scope to be given to a particular expression employed, or
to a particular form which has been followed, should be considered
in the light of these remarks when it is sought to determine
whether the Declaration of 1926 is to be regarded as constituting
a provision of the Treaty of the same date.

In this connection, it is of particular significance that it was
the very persons who were responsible for expressing the will of
the States who chose to use, in Article 29, the expression ‘“‘provi-
sions of the present Treaty”, and not a more comprehensive
expression. It was they who chose to give their agreement
concerning claims based on the Treaty of 1886 the form of a
separate provision, and not of an article in the Treaty of the
same date ; it was they who gave it the title of Declaration and
not that of an additional article, who saw fit to append their
signatures to it, separately from the Treaty, and to make no
reference to it in the Treaty, in contra-distinction to what they
did in the case of the Schedule which precedes it. All this, for
the reasons indicated above, is of greater importance in determining
the character of the Declaration than the fact that the Declaration
was printed after the Treaty and the Schedule, in one document
with consecutive pagination, physical details which, like others
of the same kind, are governed by the actions of officials who,
unlike plenipotentiaries, were not responsible for elaborating and
stating the will of the contracting Parties.

Similarly, when they signed the instruments of ratification—
act by which they confirmed the agreement reached by their
respective Plenipotentiaries and by which they gave the Declaration
a definitive character of the will of the contracting States—the
President of the Greek Republic and the British Monarch were
merely confirming what had already been declared by their
Plenipotentiaries. They did not direct their minds to details,
often superfluous or incorrect, which officials, unqualified to
interpret, complete or correct the intentions of their Sovereigns,
borrowed from forms which they traditionaily and blindly followed.

An examination of the various factors relied upon on either
side—if undertaken with care to attribute importance only to
those considerations which throw light on the intentions of those
who alone were qualified to declare the will of their respective
Governments and not to considerations which do not relate to

49
DISSENTING OPINION OF JUDGE BASDEVANT 71

the formation of this will--should lead to the view that the
Declaration is distinct from the Treaty, and not a clause or
provision of the Treaty itself; such an examination should also
lead to the reading of Article 29 as it is written—that is to say,
as giving the Court jurisdiction in respect of disputes as to the
interpretation or application of the ‘provisions of the present
Treaty’’—and not to the substitution, for these perfectly clear
words, by means of interpretation, of the words “‘provisions upon
which agreement was reached by the Parties to-day’, or some
such words of lesser precision.

This independent character of the Declaration also clearly
appears if, putting aside particularities of form and details of
presentation, one has regard to the substance of the matter,
with a view to considering whether the Declaration, in spite of
its separate presentation, does not constitute a sort of supple-
mentary provision of the Treaty, which jt would have been proper
to describe as an additional article : that was the method adopted
by Max Huber in his Report on the British claims against Spain,
when he had to decide as to the independent character of an
agreement which he was called upon to interpret (Reports of
International Arbitral Awards, I], pp. 632-633).

The Declaration does not explain any clause of the Treaty.
Nor does it explain its general effect, which has been said to be
the abrogation of the Treaty of 1886 by the Treaty of 1926. In
fact, not only did the Treaty of 1926 contain no provision abro-
gating the Treaty of 1886, but it did not effect any tacit abrogation
of the Treaty of 1886. The Treaty of 1886 did not cease to be in
force as the result of any express or implied abrogation by the
Treaty of 1926, but as a result of its denunciation by the Hellenic
Government on March 3rd, I919. The date upon which this
denunciation was to take effect was the subject of a number of
postponements, and it was finally fixed as at the date of the
coming into force of the new Treaty. The coming into force of
the Treaty of 1926 thus provided a date adopted by both Parties
on which the earlier denunciation would have legal effect ; it is
not itself the juridical source of the extinguishment of the Treaty
of 1886: this extinguishment resulted from the denunciation of
the Treaty.

Consequently the Declaration of 1926, considered from the
point of view of its content, is not an instrument which explains
the Treaty of 1926, but an agreement relating to one of the effects
of the lapsing of the Treaty of 1886, this lapsing being itself the
result of the denunciation of this Treaty. From the point of view
of its substance, even more clearly than from the point of view
of its form, the Declaration must be regarded as separate from
the Treaty. It cannot be regarded as, or even assimilated to, a
provision of the Treaty. It follows that the jurisdictional clause
of Article 29 of the Treaty is not applicable to it.

50
DISSENTING OPINION OF JUDGE BASDEVANT 72

The Declaration of 1926 was designed to preserve, in respect
of the claims therein referred to, the earlier régime resulting, so
far as the merits were concerned, from the Treaty of 1886, and,
so far as the procedure for the settlement of disputes was concerned,
from the Protocol of 1886, to which it specifically refers. The
earlier régime was preserved as it stood, with its advantages and
disadvantages. Its disadvantages (the possibility of frustration of
the arbitration procedure) only became apparent later. There is
nothing to suggest that in 1926 there was anv thought of remedving
this defect with regard to claims arising falling within the Treaty
of 1886. If this had been thought of, the system adopted would
not have been to entrust to the Court the settlement of a dispute
which might arise as to whether, in any given case, there was
an obligation to resort to arbitration, while at the same time
preserving the arbitral procedure before a Commission of Arbi-
tration appointed ad hoc to deal with the principal dispute, that
relating to the validity of the claim ; rather would there Have been
a complete substitution of the Court’s jurisdiction for the arbitral
procedure provided for in 1886. This was not the course adopted.
It is impossible to attribute to the framers of the Declaration an
intention which thev never expressed, namely to create a system
of such complexity, and one which, at the present time, neither
of the Parties would wish to be applied.

It is therefore necessary to recognize that the Declaration
leaves the claims which a party seeks to base upon the Treaty
of 1886 legally in the same position as thev occupied formerly.
It leaves unaffected the gap in the operation of the arbitration
clause of the Protocol of 1886. If we have regard to the stage
of development of international law at that period, and to the
fact that in 1926 neither of the two States had subscribed to
the Declaration relating to the compulsory jurisdiction of the
Court, there is nothing surprising about this. The Court therefore
has no jurisdiction to deal with a dispute concerning the existence,
in a given case, of an obligation to resort to arbitration pursuant
to the Protocol of 1886. In other words, Article 29 of the Treaty
of 1926 does not appear to me to be applicable to such a dispute.

Furthermore, if it be accepted that the Declaration is a provision
of the Treaty of 1926, that would mean that the Court has juris-
diction to deal with a dispute concerning the interpretation and
application of the Declaration: that would authorize the Court,
in the present case, to adjudicate upon the British contention
that it is entitled to refuse to the Ambatielos claim the benefits
of the Declaration, on the ground that it was not presented prior
to the Declaration.

But a decision on this point is not sufficient to resolve the
question whether there exists any obligation to refer the Ambatielos
claim to arbitration. Such an obligation, if it exists, arises from
the Treaty and the Protocol of 1886: the dispute as to the

51
DISSENTING OPINION OF JUDGE BASDEVANT 73

existence, in this case, of such an obligation is a dispute concerning
the interpretation and application of that Treaty and that Protocol.
But Article 29 did not confer on the Court jurisdiction to deal
with a dispute which, in the way now contemplated, relates
exclusively to the interpretation and the application of the Treaty
and Protocol of 1886: it has never been contended—and it is
manifestly impossible to say—that the provisions of that Treaty
and Protocol are provisions of the Treaty of 1926.

In conclusion, the Court ought in this case simply to observe
that the Declaration of 1926 left the Parties with the régime
created by the Treaty and the Protocol of 1886, a régime which
remained completely unchanged by the Declaration, and that it
is therefore for the Parties to take such action as they deem
proper in pursuance of the provisions of the Treaty of 1886, and
that the Court has not been invested by the Parties with any
power to substitute itself for them in determining the action
which ought to be taken in pursuance of those provisions in the
present case.

*
* +

The foregoing considerations lead me to the conclusion that
the Court has not been given jurisdiction either to deal with the
merits of the claim presented by the Hellenic Government in the
Ambatielos case, or to consider and decide whether there is an
obligation binding the States at issue to submit this claim to
the arbitration provided for by the Protocol of 1886.

(Signed) BASDEVANT.

<2


39

DISSENTING OPINION OF JUDGE VERESHCHETIN

The assumption of Yugoslavia’s membership in the United Nations was a
necessary prerequisite for the Court's finding on its Jurisdiction (paras 1-8) —
The discovery of the wrongfulness of an assumption can constitute a ground for
revision (paras 9-12) — The facts of Yugoslavia’s non-membership in the
United Nations and non-participation in the Genocide Convention were unknown
to Yugoslavia and the Court at the relevant time (paras 13-21) — Yugoslavia
has not acted negligently (paras 22-27) — Conclusions (para 28)

1 THE ASSUMPTION OF YUGOSLAVIA’S MEMBERSHIP IN THE UNITED
NATIONS AS A NECESSARY PREREQUISITE FOR THE COURT’S FINDING ON ITs
JURISDICTION

1 The Court has expressly stated 1n 1ts 1996 Judgment that “its only
Jurisdiction to entertain the case is on the basis of Article IX of the Geno-
cide Convention” (Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugo-
slavia), Preliminary Objections, Judgment, IC J Reports 1996 (II),
p 621, para 41) The Court has also found that it “is unable to uphold
any of the additional bases of jurisdiction invoked by the Applicant ”
(ibid )

What 1s strongly disputed by the Parties in the current proceedings
relating to the admissibility of the revision of the above Judgment — 1s
whether or not the assumption of Yugoslavia’s membership of the United
Nations at the time of the 1996 Judgment was necessary, and therefore
“of such a nature as to be a decisive factor” (within the meaning of
Article 61, paragraph 1, of the Statute), for the Court to have reached
the conclusion on its jurisdiction Yugoslavia contends that the issue
of Yugoslavia’s status in the United Nations was of fundamental
importance for the reasoning of the Court relating to the admissibility
of the revision, since

“the Judgment of 11 July 1996 was solely, and could solely [be]
based on the assumption that the FRY was a Member of the United
Nations, a party to the Court’s Statute and also bound by Article IX
of the Genocide Convention as being identical with the former
Yugoslavia — an assumption that has, however, ex post facto,
proved to be erroneous and which thus has given rise to [the] Appli-
cation for Revision” (CR 2002/42, p 42, para 4 42 (Zimmermann))

36

40 APPLICATION FOR REVISION (DISS OP VERESHCHETIN)

Conversely, Bosnia and Herzegovina maintains that

“Yugoslavia’s status m relation to the United Nations is totally
irrelevant when 1t comes to considering the Application for revision
and cannot be ‘of such a nature as to be a decisive factor’ in the
reasoning of the Court, which in 1996 did not venture onto
that ground” (CR 2002/41, pp. 42-43, para 34 (Pellet))

Thus, the Parties are in complete disagreement as to whether or not the
Court could have arrived at the same finding on the basis of the same
ratio decedendi had it known, as an established fact, that Yugoslavia was
not a Member of the United Nations at the time the Judgment on juris-
diction was given Evidently, the answer to this question 1s bound to
clarify the role of the “discovery” of a new fact alleged by Yugoslavia.
Therefore, I am of the view that this question, directly related to the first
condition for the admissibility of revision set out m Article 61 of the
Statute, should have been the starting point of the Court’s reasoning
in the present Judgment

2 The Genocide Convention, on which the Court has chosen to solely
base its jurisdiction, both ratione personae and ratione materiae, specifi-
cally provides that it 1s open only to Members of the United Nations and
to non-member States that have received an invitation from the General
Assembly of the United Nations (Article XI of the Convention) Evi-
dently, this essential precondition for participation in the Convention
had to be met by both Parties to the case to provide the Court with juris-
diction on the basis of the Convention However, in view of the circum-
stances of the case and of the arguments advanced by the Parties, the
Court, at the previous stages of its proceedings, while dealing specifically
with the issue of Bosnia and Herzegovina’s membership in the United
Nations, did not undertake a similar examination of and slid over the
subject of Yugoslavia’s standing in the United Nations.

3 This 1s evidenced by the following statements in the Orders on pro-
visional measures and in the Judgment on preliminary objections ren-
dered in the period 1993-1996 Dealing with the question of prima facie
jurisdiction in 1993, the Court said that “whereas this consideration
embraces jurisdiction both ratione personae and ratione materiae
inasmuch as almost all States are today parties to the Statute of the
Court, it 1s in general only the latter which requires to be considered”
(Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Provisional
Measures, Order of 8 April 1993, IC J Reports 1993, p 12, para 14)
This statement demonstrates that, from the very first step, the Court pro-
ceeded from the prima facie assumption that both States parties to the
case, Bosnia and Herzegovina and Yugoslavia, were Members of the
United Nations and, accordingly, parties to the Statute of the Court

However, with apparent unease as to the prima facie junsdiction
ratione personae with regard to Yugoslavia, the Court, while observing

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41 APPLICATION FOR REVISION (DISS OP VERESHCHETIN)

that the solution adopted by the United Nations Secretariat concerning
the status of Yugoslavia in the United Nations “is not free from legal
difficulties”, reserved for the future a definitive finding on Yugoslavia’s
membership in the United Nations It specifically stated that “the ques-
tion whether or not Yugoslavia is a Member of the United Nations and
as such a party to the Statute of the Court is one which the Court does
not need to determine definitively at the present stage of the proceedings”
(Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v Yugoslavia), Provisional
Measures, Order of 8 April 1993, I CJ Reports 1993, p 14, para 18)

Then, referring to Article 35, paragraph 2, of the Statute, the Court
concludes that “if Bosnia-Herzegovina and Yugoslavia are both parties
to the Genocide Convention, disputes to which Article IX applies are in
any event prima facie within the jurisdiction ratione personae of the
Court” (tbid , p 14, para 19, emphasis added) The use of the word “if”
in this phrase 1s significant It could not but reflect the idea that it had yet
to be seen whether both States were indeed parties to the Genocide Con-
vention and therefore the Convention could be considered as “a treaty in
force” for each of them, as required by Article 35, paragraph 2, of the
Statute In turn, 1t necessitated the resolution of the issue of Yugoslavia’s
membership of the United Nations This necessity was not taken away by
the statement that the proceedings before the Court under Article 35,
paragraph 2, “may validly be instituted independently of the condi-
tions laid down by the Security Council in its resolution 9 of 1946”
(thid )

4 The question of Yugoslavia’s membership in the United Nations,
which the Court decided not “to determine definitively” in 1ts Orders on
provisional measures, had to be decided “definitively” in the Judgment of
1996 on preliminary objections when the question of the Court’s jurisdic-
tion was to be determined, in principle, conclusively Nonetheless, the
Court again opted not to clarify expressly the knotty legal question of
Yugoslavia’s membership in the United Nations and instead satisfied
itself with citing the declaration of a general nature made by Yugoslavia
on 27 April 1992 to the effect that

“The Federal Republic of Yugoslavia, continuing the State, inter-
national legal and political personality of the Socialist Federal Repub-
lic of Yugoslavia, shall strictly abide by all the commitments that the
Socialist Federal Republic of Yugoslavia assumed internationally ”
(Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia),
Preliminary Objections, Judgment, IC J Reports 1996 (II), p 610,
para 17)

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42 APPLICATION FOR REVISION (DISS OP VERESHCHETIN)

The Court, after taking note that “it has not been contested that Yugosla-
via was party to the Genocide Convention”, decided “[t]hus, Yugoslavia
was bound by the provisions of the Convention on the date of the filing
of the Application in the present case, namely, on 20 March 1993” (Appli-
cation of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v Yugoslavia), Preliminary Objec-
tions, Judgment, I CJ Reports 1996 (II), p 610, para 17)

5 Although the Court did not proffer any legal reasoning, it 1s evident
that the above conclusion, read against the background of the former
hesitations of the Court as to Yugoslavia’s status in the United Nations,
carries the necessary implication that the Court at that time assumed as a
fact continued membership of Yugoslavia in the United Nations Other-
wise, 1t 18 inconceivable how the Court, even in the absence of challenge,
could recognize the continuing participation of Yugoslavia in the Con-
vention while the essential precondition of such participation had ceased
to exist

6 It may be argued that since the Court explicitly did not take any
position on Yugoslavia’s membership in the United Nations, it could
have proceeded on the theory that once a Member of the United Nations
(in our case, the former Yugoslavia) has become a party to the Genocide
Convention, the essential precondition of United Nations membership 1s
met once and for all, irrespective of the future standing of the State in the
United Nations Whatever may be the merits of this theory, evidently it
apphes only to the situation where the State remains identical and retains
the legal personality of 1ts predecessor The applicability of this theory to
the situation of Yugoslavia 1s belied by the non-recognition of its claim to
continue the personality of the former Yugoslavia and, furthermore, by
the treatment by the Court in the same case of the situation of Bosnia
and Herzegovina’s participation in the Convention

7 Indeed, it will be recalled that in 1996, dealing with the question of
Bosnia and Herzegovina’s participation in the Genocide Convention,
which at that time was contested by Yugoslavia, the Court considered
that the fact of the admission of Bosnia and Herzegovina to the United
Nations played a decisive role in 1ts becoming a party to the Convention
While declining Yugoslavia’s contention relating to the alleged existence
of some other conditions for the participation in the Convention, the
Court said in the 1996 Judgment

“Article XI of the Genocide Convention opens 1t to ‘any Member
of the United Nations’, from the time of its admission to the Organi-
zation, Bosma and Herzegovina could thus become a party to the
Convention ” (Jbid, p 611, para 19, emphasis added )

For this reason, the Court found it unnecessary and declined to consider
other arguments in favour of the participation in the Convention of Bos-
nia and Herzegovina advanced by the latter, including the argument
relating to the succession to treaties generally and the argument of “auto-

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43 APPLICATION FOR REVISION (DISS OP VERESHCHETIN)

matic succession”, allegedly applicable in the case of certain types of
international treaties or conventions (Application of the Convention on
the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v Yugoslavia}, Preliminary Objections, Judgment, IC J
Reports 1996 (II), p 612, para 23)

8 If we now apply the same standard to Yugoslavia, we can only con-
clude that the assumption that Yugoslavia was a Member of the United
Nations was a sine qua non condition for the Court’s determination on
the jurisdiction ratione personae, and therefore it was a “decisive factor”
within the meaning of Article 61 of the Statute

2 CAN THE DISCOVERY OF THE WRONGFULNESS OF AN ASSUMPTION
CONSTITUTE A GROUND FOR REVISION?

9 Having demonstrated that the Judgment of the Court on its juris-
diction ratione personae over Yugoslavia was premised on the assumed
membership of Yugoslavia in the United Nations, it 1s yet to be seen
whether United Nations membership status may fall within the legal
notion of “fact” and, if so, whether an assumption of such a fact later
proved to be incorrect can serve as a ground for revision of a judgment,
provided all other requirements of Article 61 of the Statute are met

10 The question whether or not a State 1s a Member of the United
Nations would appear to be a question of fact according to a whole series
of definitions of the term “fact” given in authoritative law dictionaries
and texts Thus, applying the definition of “fact” given by Black's Law
Dictionary, it would fall under “something that actually exists” or under
“circumstance, as distinguished from its legal effect, consequence, or
interpretation” (Black's Law Dictionary, 7th ed, p 610) According to
Wigmore on Evidence, “fact is any act or condition of things, assumed for
(the moment) as happening or existing” (cited in Black’s Law Dictionary,
7th ed, p 610, emphasis added) De Smith ef al define “a finding of
fact as an assertion that a phenomenon exists, has existed or will exist,
independently of any assertion as to its legal effect” (de Smith, Woolf
& Jowell, Judicial Review of Administrative Action, Sth ed, p 277,
para 5-079) If we turn to the ordinary meaning of the word “fact”, the
Concise Oxford Dictionary defines it as “1 Thing certainly known to
have occurred or be true ” (The Concise Oxford Dictionary of Current
English, 6th ed, p 370) From the quoted definitions, 1t follows it
would be a natural mterpretation of the meaning of the term “fact”
that it includes a State’s status in an organization Likewise, facts would
be statehood, being a party to a treaty, etc It may be pertinent to note
that the Russian text of Article 61 of the Statute uses the word “circum-
stances” in place of the word “fact” used in the English text

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44 APPLICATION FOR REVISION (DISS OP VERESHCHETIN)

11 As was shown above, the Court did not concern itself spectfically
with the establishment of the fact of Yugoslavia’s membership in the
United Nations and explicitly did not take any position on the claim of
Yugoslavia in this respect However, implicitly it could not avoid the
assumption of Yugoslavia being a Member of the United Nations This
assumption, which was of crucial importance for the establishment of the
Court’s jurisdiction in the case, later proved to be incorrect Therefore,
the question arises whether an incorrect assumption of the factual situa-
tion, in international proceedings, can lead to the revision of a judgment

12 A pertinent example of international jurisprudence where an incor-
rect or erroneous assumption of the personal status of the claimant led
to the revision of the decision 1s Schreck’s case (Moore, 2 International
Arbitrations, p 1357) often referred to by writers The umpire, Sir
Edward Thornton, reversed his earlier decision when he discovered he
had based it on an incorrect assumption about the nationality of the
claimant under Mexican law The claimant Schreck needed to be an
American citizen in order to obtain relief The umpire had wrongly
assumed that, because the claimant was born in Mexico he must have
had Mexican nationality, and therefore refused relief He later discovered
the fact that under Mexican law this was not the case and indeed the
claimant did not have Mexican nationality at all That fact existed at the
time of the decision but was not known to the umpire until afterwards
Consequently, upon its discovery, he revised his decision and found for
the claimant

Certainly, m national jurisprudence one may find many other examples
of the revision of decisions based on the discovery of wrong assumptions,
including the assumptions of the legal status of natural persons and legal
entities (citizenship, marital status, domicile, etc )

3 WERE THE FACTS OF YUGOSLAVIA’S NON-MEMBERSHIP IN THE UNITED
NATIONS AND NON-PARTICIPATION IN THE GENOCIDE CONVENTION
UNKNOWN TO YUGOSLAVIA AND THE COURT AT THE RELEVANT TIME?

13 I now propose to turn to the questions whether Yugoslavia has
shown that its non-membership of the United Nations was unknown to
Yugoslavia when the Judgment was delivered and, if so, was it due to its
negligence I would think that throughout the whole proceedings both
Yugoslavia and the Court were equally aware of the uncertainty and
ambiguity prevailing outside the Court as to the status of Yugoslavia
in the United Nations All the information pertaining to this issue was
readily available to the Court and was not artificially withheld by Yugo-
slavia What they could not know, due to the political vicissitudes of the
time, was the final outcome of this uncertainty and ambiguity In the
unclear situation of Yugoslavia’s standing in the United Nations, both
the Court and Yugoslavia, obviously for different reasons, opted to pro-

41

45 APPLICATION FOR REVISION (DISS OP VERESHCHETIN)

ceed on the assumption that Yugoslavia had not ceased to be a
Member of the United Nations after the dissolution of the former Yugo-
slavia

14 The legal history of the problem shows that the objective ground
for such an assumption did exist Indeed, the situation of Yugoslavia’s
membership in the United Nations at all stages of the incidental proceed-
ings in 1993-1996, and later until 1 November 2000 when Yugoslavia was
formally admitted to the United Nations as a new Member, was, to say
the least, ambiguous or, to repeat the words of the Court, “not free from
legal difficulties” The organs of the United Nations, solely competent to
decide this matter, on the one hand stated that Yugoslavia’s claim to con-
tinue automatically the membership of the former Yugoslavia “has not
generally been accepted” and decided that the new Yugoslavia “should
apply for membership in the United Nations and that it shall not partici-
pate in the work of the General Assembly” (Security Council resolu-
tion 777 (1992) of 19 September 1992 and General Assembly resolu-
tion 47/1 of 22 September 1992) On the other hand, the “considered
view” of the United Nations Secretariat regarding the practical conse-
quences of these decisions was, among other things, that Yugoslavia’s
membership in the Organization was “neither terminated nor suspended”,
that Yugoslav missions at United Nations Headquarters and offices may
continue to function, receive and circulate documents, etc (United
Nations doc A/47/485 (1992) ) Yugoslavia continued to pay membership
dues, which were duly accepted

15 Evidently, the assumption of the Court on Yugoslavia’s standing
in the United Nations was at least partly based on the “considered view”
of the United Nations Secretariat as well as on the official listings of the
United Nations in which “Yugoslavia” (without explanations whether
the designation referred to the Federal Republic of Yugoslavia) was
included until 2000 as an original Member of the United Nations since
24 October 1945 and as a party to the Genocide Convention since
29 August 1950 For its part, Yugoslavia could find in the above “con-
sidered view” and in official listings of the Depository a kind of partial
recognition of 1ts contention of continuity of membership in the United
Nations and of the continuing participation im the treaties to which the
former Yugoslavia was a party It had no compelling reasons to imme-
diately apply for membership in the United Nations while being told that
its current membership was “neither termmated nor suspended”

16 As to the other Party in these proceedings, Bosnia and Herze-

42

46 APPLICATION FOR REVISION (DISS OP VERESHCHETIN)

govina, its position with regard to these matters was ambivalent and
inconsistent In the proceedings before the Court it did not contest the
status of Yugoslavia as a Member of the United Nations and as a party
to the Genocide Convention In its Application filed with the Court on
20 March 1993, it stated, inter alia, that “[aJs Members of the United
Nations Organization, the Republic of Bosnia and Herzegovina and
Yugoslavia (Serbia and Montenegro) are parties to the Statute 7” At
the same time, outside the Court, Bosnia and Herzegovina constantly
refuted Yugoslavia’s claim to the continuation of the membership of the
former Yugoslavia Thus, the representative of Bosnia and Herzegovina
stated in the United Nations General Assembly

“Serbia and Montenegro are not legally entitled to succeed to the
position of the former Socialist Federal Republic of Yugoslavia
This 1s applicable to this body [United Nations General Assembly]
as well as to other related and similar international organizations ”
(United Nations doc A/47/PV 7 (1992) )

17 The inconsistency of Bosma and Herzegovina’s position also mani-
fested itself in that 1t recognized the status of Yugoslavia as a party to the
Genocide Convention, but at the same time initiated the exclusion of
Yugoslavia from participation in the meetings of States parties to other
important human rights treaties, like the International Covenant on Civil
and Political Rights and the United Nations International Convention
on the Elimination of All Forms of Racial Discrimination (see, for
instance, the proposal of the representative of Bosnia and Herzegovina at
the meeting of the States parties to the International Covenant on Civil
and Political Rights held on 16 March 1994 — Annex 17 of Yugoslavia’s
Application)

The arguments underpinning this position which finally resulted in the
exclusion of Yugoslavia from the above meetings boiled down to the con-
tention that since Yugoslavia had not notified the Secretary-General, spe-
cifically, of 1ts succession to the above human rights treaties as one of the
successor States of the former SFRY, it could not be considered as one of
the parties to the said treaties It 1s not easy to see why a special notifica-
tion of succession was considered necessary in respect of the above two
major human nights treaties, but not in relation to the Genocide Conven-
tion Why was the Yugoslav intention to observe “all the international
commitments of the SFRY” taken as a sufficient ground for its continued
participation in the Genocide Convention but at the same time not suf-
ficient for its participation in other human rights treaties?

18 It should be added that the “Summary of Practice of the Secretary-

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47 APPLICATION FOR REVISION (DISS OP VERESHCHETIN)

General as Depository of Multilateral Treaties” published by the Treaty
Section of the United Nations Office of Legal Affairs, mm relation to the
practice of listing Yugoslavia as a party to multilateral treaties, had been
inconsistent and changed according to the political pressures of the time
It did not shed much hight on the status of Yugoslavia (A thorough
account of the divergent views among the member States and the Legal
Office of the United Nations Secretariat 1s given in the book by K Buh-
ler, State Succession and Membership in International Organizations

Legal Theortes versus Political Pragmatism, pp 192-271 )

19 The question of Yugoslavia’s membership in the United Nations
arose again more recently (in 1999) in connection with Yugoslav requests
for the indication of provisional measures in the cases concerning Legal-
ity of Use of Force In six of those cases, the defendant States (Belgium,
Canada, the Netherlands, Portugal, Spain and the United Kingdom)
contended that Yugoslavia could not be regarded as a Member of the
United Nations or as a party to the Statute of the Court because it had
not “duly acceded to the Organization” (see, for example, paragraph 31
of the Order of 2 June 1999 in the case concerning Legality of Use of
Force (Yugoslavia v Belgium), Provisional Measures, Order of 2 June
1999, IC J Reports 1999 (1), p 135, para 31)

However, like in the case of the 1996 Judgment, the Court avoided the
direct answer to the thorny question of Yugoslavia’s membership in the
United Nations and satisfied itself with the observation that it “need not
consider this question for the purpose of deciding whether or not it can
indicate provisional measures ” bid, p 136, para 33) This time it
was done in circumstances where Yugoslavia’s standing in the United
Nations was directly challenged by six respondent States In disagreeing
with the Court’s reasoning in this respect, Judge Kooimans stressed in
his separate opinion that he came “to the conclusion that there are strong
reasons for doubt as to whether the Federal Republic of Yugoslavia 1s a
full-fledged, fully qualified Member of the United Nations ” (Legality
of Use of Force ( Yugoslavia v Belgium), Provisional Measures, Order of
2 June 1999, 1CJ Reports 1999 (I), p 179, para 25)

20 On 8 December 1999 nine States submitted in the United Nations a
draft resolution of the General Assembly, proposing that the Assembly
should declare that it

“[ejonsiders that, as a consequence of its dissolution, the former
Socialist Federal Republic of Yugoslavia ceased to exist as a legal
personality and that none of its five equal successor States can be
privileged to continue tts membership in the United Nations” (United
Nations doc A/54/L 62 (1999))
48 APPLICATION FOR REVISION (DISS OP VERESHCHETIN)

Ultimately, the consideration of this draft resolution was postponed
indefinitely by the General Assembly This reaction of the Assembly
could have been seen by Yugoslavia as another “mixed” political signal

21 Accordingly, the facts of Yugoslavia’s non-membership of the
United Nations could not have been known to the Court and Yugoslavia
at the time of the Judgment

4 Has YuGosLaviA ACTED NEGLIGENTLY?

22 From the foregoing, it can be seen that the circumstances sur-
rounding Yugoslavia’s standing in the United Nations were such that not
only Yugoslavia but, as was shown above, the Court itself appeared to
proceed from the assumption that Yugoslavia retained its membership in
the United Nations

23 A number of elements characteristic of the dissolution of the
former Yugoslavia suggest that the new Yugoslavia could plausibly
expect that, in the long run, its contention to continue the statehood of
the former Yugoslavia would be generally accepted It was the only
remaining part of the former Yugoslavia that did not issue a declaration
of independence, but on the contrary, proclaimed continuity and kept the
name “Yugoslavia” The plausibility of the development in this direction
was not denied even by Bosnia and Herzegovina, which stated in its
Written Observations on the Application for revision by Yugoslavia
the following

“The fact of the matter is that Yugoslavia kept to a position,
which may even have been defendable 1f the other new States emer-
ging from the former Yugoslavia would — sooner or later — have
been willing to accept it In other words the Yugoslavia position
could have turned out to be the mternationally accepted one ”
(Written Observations of Bosnia and Herzegovina of 3 December
2001, Part Il, p 21, para 2 23)

However, with its expectations to be recognized as the continuator of
the former Yugoslavia steadily vanishing and after the change of its
political régime, Yugoslavia took the decision to apply for membership in
the United Nations as a new State

24 In the chain of events that led to the “discovery” of the new fact
that at the relevant time Yugoslavia was not a Member of the United
Nations, the initial impulse was certainly given by Yugoslavia’s applica-
tion for United Nations membership, and evidently the timing of this ini-
tial impulse depended on Yugoslavia From this it does not follow, how-
ever, that in the political situation prevailing in the early 1990s, one could
be certain that Yugoslavia would have been admitted to the United
Nations had 1t applied at that time, or that one could have known even
after Yugoslavia’s application of 27 October 2000, that the competent

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49 APPLICATION FOR REVISION (DISS OP VERESHCHETIN)

United Nations organs would admit 1t as a new Member and list 1ts mem-
bership as of the date of admission In this sense, contrary to what 1s
implied in the Judgment (see the second subparagraph of paragraph 70 of
the Judgment) the discovery of the new fact did not depend on the posi-
tion of Yugoslavia and was not the result of 1ts negligence

25 Yugoslavia cannot be blamed for its long-lasting attempts to assert
its status as the continuator of the former Yugoslavia, for a State cannot
be faulted for trying to pursue its national interests (however it perceives
them) unless in doing so it violates the rules and principles of interna-
tional law I am in agreement with the view that

“no standard of diligence could impose the duty on a party to seek
clarification by taking out of the two possible options exactly the
one which 1s agamst its views and convictions The FRY was not
negligent if 1t did not seek a resolution of the dilemma im the direc-
tion opposite to its persuasions ” (CR 2002/42, p 24, para 227

(Varady) )

26 From the legal point of view it cannot be denied that the fact of
Yugoslavia’s non-membership m the United Nations at the time of the
1996 Judgment could not have been established before the decision of the
General Assembly on 1 November 2000, by which decision Yugoslavia
was admitted as a new Member of the United Nations This decision was
taken pursuant to the recommendation of the Committee on the Admis-
sion of New Members and the recommendation of the Security Council
Like all other States which had formed the past Socialist Federal Repub-
hic of Yugoslavia, the new Yugoslavia 1s now listed in the official docu-
ments of the United Nations as a Member from the time of 1ts admission,
and not from the time when the former Yugoslavia became a Member of
the United Nations

27 On the other hand, the assumption of Yugoslavia’s membership in
the United Nations at the time of the Court’s Judgment on its jurisdic-
tion cannot be sustained after 1 November 2000 Residual elements of
the membership of the former Yugoslavia, not demed to the new Yugo-
slavia after 1992, cannot frustrate this conclusion Otherwise, we have to
presume that the rules of elementary logic and common sense are not
applicable to this case, and a State that already was a Member of an
organization and whose membership had neither ceased nor was sus-
pended at a certain time, can again be admitted to the same organization
as a new Member, but with a different initial date of its membership
However, this 1s exactly what flows from the Judgment’s holding 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,

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50 APPLICATION FOR REVISION (DISS OP VERESHCHETIN)

LEZ]

unknown to the Court and also to the party claiming revision
of the Judgment)

(para 72

5 CONCLUSION

28 The foregoing brings me to the conclusion that the Court, in 1996,
based its jurisdiction on the assumption that Yugoslavia was at that time
a Member of the United Nations Subsequent events, described above,
have clearly demonstrated that the assumption made by the Court was
wrong The fact is, Yugoslavia was not a Member of the United Nations
in 1996 This fact constitutes “the new fact” for the purposes of Article 61
of the Statute

The request for revision of the Court’s Judgment on its junsdiction
satisfies all the conditions contemplated by Article 61 of the Statute it
1s based on the “discovery” of a fact “of such a nature as to be a decisive
factor”, the fact had been “unknown” to the Court and to the Party
claiming revision when the Judgment was given, ignorance of the fact
was not “due to negligence”, the Application for revision was made
within the time prescribed For these reasons, in my opinion, the Appli-
cation of Yugoslavia 1s admissible and the Judgment of the Court of
11 July 1966 should have been laid open for revision

Such a procedural decision would not have prejudged the ultimate
result of the revision A fortiori, 1t could not have been seen as a con-
doning of the behaviour of either side in the bloody conflict on the
territory of the former Yugoslavia

(Signed) Viadlen S VERESHCHETIN

47