     INTERNATIONAL COURT OF JUSTICE

       REPORTS OF JUDGMENTS,
    ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE DISPUTE
  REGARDING NAVIGATIONAL
    AND RELATED RIGHTS
      (COSTA RICA v. NICARAGUA)

       ORDER OF 9 OCTOBER 2007

            2007
     COUR INTERNATIONALE DE JUSTICE

         RECUEIL DES ARRE| TS,
  AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU DIFFE
               u REND RELATIF
 A
 v DES DROITS DE NAVIGATION
   ET DES DROITS CONNEXES
      (COSTA RICA c. NICARAGUA)

    ORDONNANCE DU 9 OCTOBRE 2007

                          Official citation :
         Dispute regarding Navigational and Related Rights
        (Costa Rica v. Nicaragua), Order of 9 October 2007,
                    I.C.J. Reports 2007, p. 829

                        Mode officiel de citation :
   Différend relatif à des droits de navigation et des droits connexes
      (Costa Rica c. Nicaragua), ordonnance du 9 octobre 2007,
                       C.I.J. Recueil 2007, p. 829

                                              Sales number
ISSN 0074-4441
ISBN 978-92-1-071036-7
                                              No de vente :   929

                              9 OCTOBER 2007

                                  ORDER

  DISPUTE REGARDING NAVIGATIONAL
        AND RELATED RIGHTS
      (COSTA RICA v. NICARAGUA)

   DIFFE
       u REND RELATIF A
                      v DES DROITS
DE NAVIGATION ET DES DROITS CONNEXES
      (COSTA RICA c. NICARAGUA)

                              9 OCTOBRE 2007

                              ORDONNANCE

               829

                              INTERNATIONAL COURT OF JUSTICE

   2007                                       YEAR 2007
 9 October
General List
  No. 133                                    9 October 2007

                        CASE CONCERNING THE DISPUTE
                          REGARDING NAVIGATIONAL
                            AND RELATED RIGHTS
                                   (COSTA RICA v. NICARAGUA)

                                                ORDER

               Present : President HIGGINS ; Vice-President AL-KHASAWNEH ; Judges
                         RANJEVA, SHI, KOROMA, PARRA-ARANGUREN, BUERGENTHAL,
                         OWADA, TOMKA, ABRAHAM, KEITH, SEPÚLVEDA-AMOR,
                         BENNOUNA, SKOTNIKOV ; Registrar COUVREUR.

                   The International Court of Justice,
                  Composed as above,
                  After deliberation,
                  Having regard to Article 48 of the Statute of the Court and to
               Articles 31, 44, 45, paragraph 2, 48 and 49 of the Rules of Court,
                  Having regard to the Order of 29 November 2005, by which the Court
               fixed 29 August 2006 and 20 May 2007 as the time-limits for the filing,
               respectively, of the Memorial of the Republic of Costa Rica and the
               Counter-Memorial of the Republic of Nicaragua,
                  Having regard to the Memorial and the Counter-Memorial duly filed
               by the Parties within those time-limits ;
                  Whereas, at a meeting on 27 September 2007 between the President of
               the Court and the Agents of the Parties, the Agents of Costa Rica and
               Nicaragua, referring, inter alia, to the need for the further elaboration of

               4

830         NAVIGATIONAL AND RELATED RIGHTS (ORDER 9 X 07)

certain points which were still in dispute between the Parties after the first
round of written pleadings, and to the fact that Costa Rica wished to
present new information and documents, stated that their Governments
had agreed to request the Court to authorize the filing of a Reply by the
Applicant and of a Rejoinder by the Respondent ; and whereas the
Agents of both Parties also stated that their Governments had agreed on
time-limits for the filing of those pleadings, namely 15 January 2008 for
the Reply of Costa Rica and 15 July 2008 for the Rejoinder of Nicaragua ;

   Taking account of the agreement of the Parties and of the circum-
stances of the case,
  Authorizes the submission of a Reply by Costa Rica and a Rejoinder
by Nicaragua ;
  Fixes the following time-limits for the filing of those pleadings :

    15 January 2008 for the Reply of Costa Rica ;
    15 July 2008 for the Rejoinder of Nicaragua ; and
    Reserves the subsequent procedure for further decision.

   Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this ninth day of October, two thousand
and seven, in three copies, one of which will be placed in the archives of
the Court and the others transmitted to the Government of the Republic
of Costa Rica and the Government of the Republic of Nicaragua, respec-
tively.

                                            (Signed) Rosalyn HIGGINS,
                                                        President.
                                          (Signed) Philippe COUVREUR,
                                                        Registrar.

5

PRINTED IN THE NETHERLANDS

                       ISSN 0074-4441
                       ISBN 978-92-1-071036-7


                     155

                                SEPARATE OPINION OF PRESIDENT TOMKA

                        Temporal scope of the Court’s jurisdiction — Issues left open by the Court’s
                     2008 Judgment on preliminary objections — Conclusion that the Court has juris‑
                     diction in so far as Serbia is alleged to have succeeded to the responsibility of the
                     SFRY not supported by text of Article IX or its travaux préparatoires — Dispute
                     must be between Contracting Parties and concern “the interpretation, application
                     or fulfilment” of the Convention by those parties — Disputes “relating to the
                     responsibility of a State for genocide” a subset of such disputes — Travaux
                     préparatoires demonstrate that such disputes are those involving allegations that a
                     State is responsible for acts of genocide perpetrated by individuals and attributable
                     to it — Essential subject‑matter of the dispute whether Serbia breached the Con‑
                     vention — Dispute regarding Serbia’s succession to the SFRY’s responsibility not
                     a dispute about the interpretation, application or fulfilment of the Convention by
                     Serbia — Only acts occurring subsequent to Serbia’s becoming party to the Con‑
                     vention fall within the Court’s jurisdiction under Article IX — Factual continuity
                     and identity between actors during armed conflict in Croatia before and after
                     27 April 1992 not to be confused with situation in law — Court nonetheless able to
                     consider events prior to 27 April 1992 in order to determine whether pattern of acts
                     existed from which dolus specialis could be inferred.

                        Admissibility of the claim — Monetary Gold principle — Inapplicability of
                     Monetary Gold principle in respect of non‑existent predecessor States acceptable
                     where there is agreement as to which successor States succeeded to the relevant
                     obligations — Position complicated where uncertainty as to which successor States
                     might ultimately bear responsibility — Decision on SFRY’s responsibility may
                     concern several successor States — Relevance of 2001 Agreement on Succession
                     Issues.

                        1. Although I share the conclusions of the Court on the merits of the
                     claim brought by Croatia and the counter‑claim raised by Serbia, I feel
                     compelled to explain my position on the temporal scope of the Court’s
                     jurisdiction and to offer some remarks on the admissibility of the claim.

                                   I. The Court’s Jurisdiction Ratione Temporis

                        2. At the hearing in 2008 on preliminary objections, Serbia maintained
                     its second objection, an alternative one, “that claims based on acts and
                     omissions which took place prior to 27 April 1992 are beyond the juris-
                     diction of this Court and inadmissible” (Application of the Convention on

                     156

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                     156 	 application of genocide convention (sep. op. tomka)

                     the Prevention and Punishment of the Crime of Genocide (Croatia v. Ser‑
                     bia), Preliminary Objections, Judgment, I.C.J. Reports 2008, p. 420,
                     para. 22). In its 2008 Judgment, the Court found that “the second pre-
                     liminary objection submitted by the Republic of Serbia does not, in the
                     circumstances of the case, possess an exclusively preliminary character”
                     (ibid., p. 466, para. 146 (4)). The Court identified “two inseparable issues”
                     raised by Serbia’s second preliminary objection :

                              “The first issue is that of the Court’s jurisdiction to determine
                           whether breaches of the Genocide Convention were committed in the
                           light of the facts that occurred prior to the date on which the FRY
                           came into existence as a separate State, capable of being a party in its
                           own right to the Convention ; this may be regarded as a question of the
                           applicability of the obligations under the Genocide Convention to the
                           FRY [(sic) !] before 27 April 1992. The second issue, that of admissi-
                           bility of the claim in relation to those facts, and involving questions
                           of attribution, concerns the consequences to be drawn with regard to
                           the responsibility of the FRY for those same facts under the general rules
                           of State responsibility.” (Ibid., p. 460, para. 129 ; emphasis added.)
                     It went on to explain that “[i]n order to be in a position to make any find-
                     ings on each of these issues, the Court will need to have more elements
                     before it” (ibid., p. 460, para. 129).
                        3. In my separate opinion I respectfully, and not without regret, dis-
                     agreed with the majority on this point. I expressed the view
                           “that the question of ‘consequences to be drawn from the fact that
                           the FRY [now Serbia] became a State and a party to the Genocide
                           Convention on 27 April 1992’ is a legal question which should [have]
                           be[en] decided already at [that] stage and for the answering of which
                           there [was] no need of any further information” (ibid., separate opin-
                           ion of Judge Tomka, p. 521, para. 17).
                     I then noted that “[w]hat is conspicuous is that the Court does not even
                     indicate what other elements it needs” (ibid.).
                        4. There is no indication in today’s Judgment as to what new elements
                     the Court received which allowed it to rule on the issue of the temporal
                     scope of its jurisdiction, which it found, in 2008, not to be of an exclu-
                     sively preliminary character. It is not even clear how these “new ele-
                     ments”, if any, assisted it in resolving the remaining jurisdictional issue.
                     Rather, the Court adopts a legal construction which it could have adopted
                     already in 2008, although I cannot subscribe to it for the reasons given in
                     this opinion.

                        5. I cannot fail to mention that what in the 2008 Judgment was for the
                     Court “a question of the applicability of the obligations under the Geno-
                     cide Convention to the FRY before 27 April 1992” (emphasis added,
                     quoted above in paragraph 2 of this opinion) has now become for the

                     157

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                     157 	 application of genocide convention (sep. op. tomka)

                     Court the question of whether “the responsibility of the SFRY had been
                     engaged” and, if so, “whether the FRY succeeded to that responsibility”
                     (Judgment, para. 112 ; emphasis added). I also note that while in the
                     2008 Judgment the Court indicated that it would have to deal, in the con-
                     text of the admissibility of the claim in relation to facts prior to
                     27 April 1992, with “the consequences to be drawn with regard to the
                     responsibility of the FRY for those same facts under the general rules of
                     State responsibility” (emphasis added, quoted above in paragraph 2 of
                     this opinion), in the present Judgment the issue of whether the FRY is
                     responsible is to be determined by the rules of general international law
                     on State succession (ibid., para. 115) “if the responsibility of the SFRY
                     had been engaged” (ibid., para. 112).

                        6. The Court, earlier in this case, determined that Serbia became party
                     to the Genocide Convention as of 27 April 1992 by way of succession, as
                     the declaration adopted on that day and the Note from the Permanent
                     Mission of Yugoslavia to the Secretary‑General of the United Nations
                     “had the effect of a notification of succession by the FRY to the SFRY in
                     relation to the Genocide Convention” (I.C.J. Reports 2008, p. 455,
                     para. 117). It follows that it is only from this day that the FRY (Serbia)
                     has been bound by the Convention as a party to it in its own name.

                        7. However, the Court has now concluded that it has jurisdiction to
                     consider acts occurring prior to 27 April 1992 and alleged to amount to
                     violations of the Genocide Convention in so far as Serbia is said to have
                     succeeded to the responsibility of the SFRY for such acts (Judgment,
                     paras. 113‑114 and 117). In this respect, the Judgment draws a distinction
                     between “Croatia’s principal argument” that Serbia is directly responsible
                     for allegedly genocidal acts occurring prior to 27 April 1992 on the basis
                     that they are attributable to it, and its “alternative argument” that Serbia’s
                     responsibility arises as a result of succession to the SFRY’s responsibility
                     (ibid., para. 114). The Judgment rightly concludes that the FRY (and thus
                     Serbia) was not bound by the Convention prior to 27 April 1992 and that,
                     even if acts that occurred prior to this date were attributable to it, they
                     cannot have amounted to a breach of the Convention by that State (ibid.,
                     para. 105). The Court cannot therefore have jurisdiction over Croatia’s
                     claim in so far as it is based on the “principal argument” that the relevant
                     acts occurring prior to that date are attributable to Serbia. It is only on the
                     basis of Croatia’s “alternative argument” that Serbia’s responsibility
                     results from succession to the responsibility of the SFRY that the Court
                     concludes that its jurisdiction extends to acts prior to 27 April 1992.
                        8. For such conclusion, however, in my view, there is no support in
                     either the text of Article IX or its travaux préparatoires. The issue before
                     us is the interpretation of the compromissory clause which is contained in
                     Article IX of the Genocide Convention. That provision reads as follows :
                            “Disputes between the Contracting Parties relating to the interpre-

                     158

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                     158 	 application of genocide convention (sep. op. tomka)

                           tation, application or fulfilment of the present Convention, including
                           those relating to the responsibility of a State for genocide or for any
                           of the other acts enumerated in Article III, shall be submitted to the
                           International Court of Justice at the request of any of the parties to
                           the dispute.”
                        9. It is evident from the text of Article IX that the relevant dispute
                     must be between the Contracting Parties 1. Critically, the dispute must be
                     about “the interpretation, application or fulfilment” of the Convention
                     by those Contracting Parties 2. It is more than doubtful that a compromis-
                     sory clause such as Article IX would give the Court jurisdiction to deter-
                     mine a dispute between two Contracting Parties that is solely about the
                     interpretation, application or fulfilment of the Convention by another
                     State. It would completely undermine the logic behind such clauses — by
                     virtue of which States give consent for their conduct to be adjudicated
                     upon by a judicial tribunal — if the dispute were to relate to the interpre-
                     tation, application or fulfilment of a given instrument by a third State.

                        10. The presence of the words “including those [disputes] relating to
                     the responsibility of a State for genocide” does not alter this important
                     conclusion. The word “including” makes it apparent that disputes “relat-
                     ing to the responsibility of a State for genocide” are a subset of those
                     relating to “the interpretation, application or fulfilment” of the Conven-
                     tion. As the Court put it in the Bosnian Genocide case :

                             “The word ‘including’ tends to confirm that disputes relating to the
                           responsibility of Contracting Parties for genocide, and the other acts
                           enumerated in Article III to which it refers, are comprised within a
                           broader group of disputes relating to the interpretation, application
                           or fulfilment of the Convention.” (Application of the Convention on
                           the Prevention and Punishment of the Crime of Genocide (Bosnia and
                           Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports
                           2007 (I), p. 114, para. 169.)
                     One commentator similarly notes that “[t]he use of the verb ‘to include’
                     suggests that the scope of jurisdiction ratione materiae is not widened by
                     the insertion of that particular provision” 3.
                       11. The travaux préparatoires reveal that, as a result of the insertion of
                     the words “including those [disputes] relating to the responsibility of a
                     State for genocide” (in French : “y compris [les différends] relatifs à la

                        1 See Application of the Convention on the Prevention and Punishment of the Crime of

                     Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, sepa-
                     rate opinion of Judge Tomka, p. 519, para. 12.
                        2 Ibid.
                        3 Robert Kolb, “The Scope Ratione Materiae of the Compulsory Jurisdiction of

                     the ICJ” in Paola Gaeta (ed.), The UN Genocide Convention — A Commentary, Oxford
                     University Press, 2009, p. 468.

                     159

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                     responsabilité d’un Etat en matière de génocide”), the Court’s jurisdiction
                     “includes [its] power . . . to determine international ‘responsibility of a
                     State for genocide’ on the basis of attribution to the State of the criminal
                     act of genocide perpetrated by a person” (Application of the Convention on
                     the Prevention and Punishment of the Crime of Genocide (Bosnia and Her‑
                     zegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I),
                     separate opinion of Judge Tomka, p. 345, para. 61 ; emphasis added).
                        12. As I have noted previously, the text of Article IX, as it refers to
                     “responsibility of a State for genocide”, lends itself — prima vista — to at
                     least three possible readings 4.
                        13. The first one, that the provision can be understood as simply pro-
                     viding for the Court’s jurisdiction to determine the responsibility of a
                     State for breach of the obligations under the Convention, is too restrictive
                     and difficult to retain in view of the principle of effectiveness in treaty
                     interpretation. It would only state expressis verbis what is otherwise
                     implied in every compromissory clause providing for the jurisdiction of
                     the Court to adjudicate disputes regarding the application of a conven-
                     tion. As the Permanent Court of International Justice stated :

                              “It is a principle of international law that the breach of an engage-
                           ment involves an obligation to make reparation in an adequate form.
                           Reparation therefore is the indispensable complement of a failure to
                           apply a convention and there is no necessity for this to be stated in
                           the convention itself. Differences relating to reparations, which may
                           be due by reason of failure to apply a convention, are consequently
                           differences relating to its application.” (Factory at Chorzów, Jurisdic‑
                           tion, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 21.)

                     In the words of this Court,
                           “it would be superfluous to add [the phrase ‘the responsibility of a
                           State for genocide’ into the compromissory clause] unless the Parties
                           had something else in mind . . . It would indeed be incompatible with
                           the generally accepted rules of interpretation to admit that a provision
                           of this sort occurring in [a convention] should be devoid of purport
                           or effect.” (Corfu Channel (United Kingdom v. Albania), Merits, Judg‑
                           ment, I.C.J. Reports 1949, p. 24.)

                       14. The second possible reading, namely that the Court has jurisdiction
                     to determine that a State has committed the crime of genocide, would
                     imply the criminal responsibility of States in international law, a concept

                        4 Application of the Convention on the Prevention and Punishment of the Crime of

                     Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports
                     2007 (I), separate opinion of Judge Tomka, p. 339, para. 53. I have already made, in more
                     detail, the points that follow here in that separate opinion (pp. 339‑340, paras. 54‑56).

                     160

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                     160 	 application of genocide convention (sep. op. tomka)

                     which has not been accepted in international law, but was rather opposed
                     by a great number of States and was not retained by the International Law
                     Commission when it finalized and adopted, in 2001, the text of the Draft
                     Articles on Responsibility of States for Internationally Wrongful Acts.
                        15. The third reading of the clause, according to which the Court can
                     determine the responsibility of a State on the basis of the attribution to
                     that State of acts constituting the crime of genocide committed by its per-
                     petrators, is then most plausible. This is so not only in view of the text of
                     the clause, in particular having regard to the French text which speaks of
                     “responsabilité d’un Etat en matière de génocide”, and not “pour le géno-
                     cide”, but also the travaux préparatoires, which reflect a sometimes con-
                     fusing debate in the Sixth Committee in 1948 when the text of the
                     Convention was finalized.
                        16. The travaux préparatoires are discussed in detail in my previous
                     separate opinion 5. It is, however, worth highlighting that the United King-
                     dom had suggested an amendment to draft Article VII (the current Arti-
                     cle VI) that provided that :
                              “Where the act of genocide as specified by Articles II and IV is, or
                           is alleged to be the act of the State or Government itself or of any organ
                           or authority of the State or Government, the matter shall, at the request
                           of any other party to the present Convention, be referred to the Inter-
                           national Court of Justice, whose decision shall be final and binding.
                           Any acts or measures found by the Court to constitute acts of geno-
                           cide shall be immediately discontinued or rescinded and if already
                           suspended shall not be resumed or reimposed.” 6

                        17. The amendment was later withdrawn in favour of a joint amend-
                     ment with Belgium to Article X (the current Article IX) 7, which provided
                     for disputes “between the High Contracting Parties relating to the interpre-
                     tation, application or fulfilment of the present Convention, including dis-
                     putes relating to the responsibility of a State for any of the acts enumerated
                     in Articles II and IV” to be submitted to the International Court of Jus-

                        5 I.C.J. Reports 2007 (I), separate opinion of Judge Tomka, pp. 332‑345, paras. 40‑61,

                     in particular paragraphs 50‑59 devoted to Article IX of the Genocide Convention.
                        6 See United Nations doc. A/C.6/236 and Corr. 1, reproduced in Hirad Abtahi and

                     Philippa Webb, The Genocide Convention : The Travaux Préparatoires, Brill, 2008, Vol. II,
                     p. 1986 ; emphasis added ; also Application of the Convention on the Prevention and Punish‑
                     ment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judg‑
                     ment, I.C.J. Reports 2007 (I), separate opinion of Judge Tomka, p. 337, para. 49.
                        7 See United Nations doc. A/C.6/SR.100, reproduced in Hirad Abtahi and

                     Philippa Webb, The Genocide Convention : The Travaux Préparatoires, supra note 6,
                     p. 1714 ; also Application of the Convention on the Prevention and Punishment of the Crime
                     of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports
                     2007 (I), separate opinion of Judge Tomka, p. 337, para. 49.

                     161

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                     tice 8. The United Kingdom representative recalled that this new amend-
                     ment “represented an attempt to combine the provisions of Article X as it
                     stood with the essential features of the Belgian and United Kingdom
                     amendments to Article VII, namely, the responsibility of States and an
                     international court empowered to try them” 9. Moreover, he outlined that
                     he “had been impressed by the fact that all speakers had recognized that
                     the responsibility of the State was almost always involved in all acts of
                     genocide ; the Committee, therefore, could not reject a text mentioning the
                     responsibility of the State” 10. Finally, he noted that “the responsibility
                     envisaged by the joint Belgian and United Kingdom amendment was the
                     international responsibility of States following a violation of the conven-
                     tion. That was civil responsibility, not criminal responsibility” 11.

                           18. It seems apparent that, while States were concerned by the p
                                                                                rospect
                      of the State being held criminally responsible 12, the intent behind Arti-
                        cle IX was to allow disputes relating to violations by States of their
                      obligations under the Convention 13 — committed through the acts of
                     persons whose conduct was attributable to them — to be brought before
                     the Court. Article IX, read as a whole and in the context of other
                     provisions of the Convention, does not provide solid support for the
                      Court’s willingness to embark on an inquiry into Serbia’s alleged respon-
                      sibility by way of succession through just observing that Article IX
                        “contains no limitation regarding the manner in which [a State’s]
                       responsibility might be engaged” (Judgment, para. 114). The travaux

                     préparatoires point in a different direction : no one during the discussion
                        leading to the adoption of the Convention ever mentioned the issue
                       of succession. The intent was rather to allow the Court to consider
                       disputes involving an allegation that the State is to be held responsible
                        for genocide because the acts of its perpetrators are attributable to

                         8 See United Nations doc. A/C.6/258, reproduced in Hirad Abtahi and Philippa Webb,

                     The Genocide Convention : The Travaux Préparatoires, supra note 6, p. 2004 ; also Applica‑
                     tion of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
                     and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), separate
                     opinion of Judge Tomka, p. 340, para. 57.
                         9 United Nations doc. A/C.6/SR103, reproduced in Hirad Abtahi and Philippa Webb,

                     The Genocide Convention : The Travaux Préparatoires, supra note 6, p. 1762 (Fitzmaurice).
                         10 Ibid.
                         11 See ibid., p. 1774 ; also Application of the Convention on the Prevention and Punish‑

                     ment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judg‑
                     ment, I.C.J. Reports 2007 (I), separate opinion of Judge Tomka, p. 341, para. 58.
                         12 See, e.g., Christian J. Tams, “Article IX” in Christian J. Tams, Lars Berster and

                     Björn Schiffbauer (eds.), Convention on the Prevention and Punishment of the Crime of
                     Genocide : Commentary, Munich, C. H. Beck, 2014, p. 299.
                         13 See also ibid., pp. 299‑300 (“there was little disagreement that, by virtue of Article IX,

                     it would be possible to seek an ICJ judgment on whether States had complied with provi-
                     sions of the Convention prohibiting acts of genocide”).

                     162

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                     the State, thus amounting to breaches of the Convention by the State
                     itself.
                        19. This was the understanding of the Court in the Bosnian Genocide
                     case, where it noted that :
                              “The responsibility of a party for genocide and the other acts enu-
                           merated in Article III arises from its failure to comply with the obliga‑
                           tions imposed by the other provisions of the Convention, and in
                           particular, in the present context, with Article III read with Articles I
                           and II.” (Application of the Convention on the Prevention and Punish‑
                           ment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
                           Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 114, para. 169 ;
                           emphasis added.)
                        20. This is also the understanding of Article IX that is reflected in the
                     Court’s 2008 Judgment on preliminary objections, referred to above, in
                     which it focused on the outstanding issues as relating to whether Serbia’s
                     responsibility for violations of the obligations under the Convention
                     could have been engaged by acts attributable to it and committed prior to
                     27 April 1992. Indeed, this is the understanding of the Convention that is
                     reflected in Croatia’s claims submitted to the Court, namely that Serbia
                     itself breached the Convention. Thus, in its initial Application, Croatia
                     claimed “that the Federal Republic of Yugoslavia has breached its legal
                     obligations toward the people and Republic of Croatia” under various
                     provisions of the Convention (Judgment, para. 49 ; emphasis added). In
                     its final submissions in the written pleadings, it likewise claimed that the
                     Respondent “is responsible for violations of the Convention . . . (a) in
                     that persons for whose conduct it is responsible committed genocide on the
                     territory of the Republic of Croatia” (ibid., para. 50 ; emphasis added).
                     This submission was maintained in Croatia’s final submissions presented
                     at the close of the hearings (ibid., para. 51). This is in my view the subject
                     matter of the dispute before the Court.

                        21. The fact that the focus of questions as to the responsibility of a
                     State for genocide is on responsibility arising from breach of the Conven-
                     tion by that State also tends to confirm the point made above, that dis-
                     putes relating to the “interpretation, application or fulfilment” of the
                     Convention — of which disputes relating to State responsibility for geno-
                     cide are a type — are disputes about the interpretation, application or
                     fulfilment of the Convention by those parties in dispute. Thus, any dispute
                     between contracting parties relating to State responsibility for genocide
                     must arise from the alleged failure of one of those parties to properly
                     interpret, apply or fulfil that Convention.

                       22. The Judgment attempts to skirt around the fact that Article IX
                     only gives jurisdiction over disputes concerning the “interpretation, appli-

                     163

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                     163 	 application of genocide convention (sep. op. tomka)

                     cation and fulfilment” of the Convention by the contracting parties in dis‑
                     pute. It acknowledges that the dispute in question in this case is between
                     Croatia and Serbia but indicates that it appears “to fall squarely within
                     the terms of Article IX” because “the essential subject‑matter of the dis-
                     pute is whether Serbia is responsible for violations of the Genocide Con-
                     vention and, if so, whether Croatia may invoke that responsibility”
                     (Judgment, para. 90).
                        23. In the first place, it is doubtful whether this accurately reflects the
                     “essential subject‑matter of the dispute”. As has already been outlined,
                     Croatia has never put forward a formal claim in its final submissions that
                     Serbia’s responsibility arose because it succeeded to the responsibility of
                     the SFRY, with the relevant acts being attributable to the latter and
                     amounting to a violation of the SFRY’s obligations under the Conven-
                     tion. It is true that, rather late in the proceedings, Croatia put this for-
                     ward as an argument (as indeed the Judgment acknowledges : see
                     para. 109 ; emphasis added), in order to address the jurisdictional point,
                     but this cannot change the dispute’s essential characteristics, which relate
                     to whether Serbia breached the Convention because the relevant acts
                     alleged to amount to genocide are attributable to it.
                        24. But even if the “essential subject‑matter of the dispute” were accu-
                     rately characterized in the Judgment, the fact that Croatia has put Ser-
                     bia’s succession to responsibility in issue does not make that dispute, at
                     least in so far as it relates to events prior to 27 April 1992, one about the
                     “interpretation, application or fulfilment” of the Convention by Serbia 14.
                     In this respect, the Judgment sets out three issues that are, on Croatia’s
                     “alternative argument”, in dispute (Judgment, para. 112). It suggests that
                     these issues “concern the interpretation, application and fulfilment of the
                     provisions of the Genocide Convention” (ibid., para. 113). However, the
                     first two issues relate to the application and fulfilment of the Genocide
                     Convention by the SFRY, not the FRY, and the former’s responsibility
                     for alleged genocide. The third issue — whether the FRY (Serbia) suc-
                     ceeded to the SFRY’s responsibility — cannot be characterized as a dis-
                     pute relating to the “interpretation, application or fulfilment” of the
                     Convention, nor as one “relating to the responsibility of a State for geno-
                     cide” once the meaning of the latter phrase has been properly understood.
                     This is because it does not relate to Serbia’s obligations under the Con-
                     vention and its failure to properly interpret, apply or fulfil them. I am not
                     convinced that the compromissory clause in Article IX extends to ques-
                     tions of State succession to responsibility. The legal term “responsibility”
                     does not include the concept of “succession”. As the Court stated in the
                     Navigational Rights case “the terms used in a treaty must be interpreted
                     in light of what is determined to have been the parties’ common intention,
                     which is, by definition, contemporaneous with the treaty’s conclusion”

                        14 See Application of the Convention on the Prevention and Punishment of the Crime of

                     Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, sepa-
                     rate opinion of Judge Tomka, p. 520, para. 13.

                     164

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                     164 	 application of genocide convention (sep. op. tomka)

                     (Dispute regarding Navigational and Related Rights (Costa Rica v. Nica‑
                     ragua), Judgment, I.C.J. Reports 2009, p. 242, para. 63). The term
                     “responsibility”, as it appears from the discussions in 1948, was certainly
                     not given by the Convention’s drafters the meaning which the Court
                     seems to be inclined to give it now for the particular purposes of this case.
                     Nor can recourse to evolutive interpretation of the terms used in the Con-
                     vention be of assistance as the term and concept “responsibility” is also at
                     present a distinct one from the term and concept “succession” in interna-
                     tional law. Matters relating to “succession to responsibility” are therefore
                     beyond the jurisdiction ratione materiae provided for in Article IX of the
                     Convention. Similarly, the second issue, as identified by the Court,
                     namely, “whether [the acts contrary to the provisions of the Convention]
                     were attributable to and thus engaged the responsibility of the SFRY
                     [(sic) !]” cannot fall “squarely within the scope ratione materiae of the
                     jurisdiction provided for in Article IX” (Judgment, para. 113) because it
                     is not a dispute “between the Contracting Parties” relating to their “inter-
                     pretation, application or fulfilment” of the Convention. The allegation is
                     that the SFRY breached the Convention, and that claim could only have
                     been brought, pursuant to Article IX of the Convention, against the
                     SFRY itself.

                        25. Having consistently denied the continuity between the legal per-
                     sonality of the SFRY and Serbia, Croatia must bear the consequences of
                     its legal position on this issue 15. It is accepted that Serbia did not become
                     a party to the Convention until 27 April 1992 and any dispute about acts
                     said to have occurred before that date cannot therefore be about the
                     interpretation, application or fulfilment of that Convention by Serbia
                     which has appeared before the Court as the Respondent. It did not have
                     obligations under the Convention as a party to it prior to 27 April 1992.
                     In my view, therefore, only acts, events and facts which occurred on the
                     dates subsequent to Serbia’s becoming party to the Convention fall within
                     the jurisdiction of the Court under Article IX of the Genocide Conven-
                     tion.
                        26. This conclusion, however, does not prevent the Court from consider-
                     ing acts which occurred prior to 27 April 1992 without formally ruling on
                     their conformity with the obligations which were, from the point of view of
                     international law, the obligations of the SFRY. The obligations of the
                     SFRY under the Convention could have been breached by any of its organs,
                     irrespective of their place in the constitutional structure of the SFRY, or any
                     person whose acts were attributable to that State. There was undoubtedly a
                     certain factual continuation and identity between those who were actors in
                     the period of armed conflict which raged in Croatia both before and after

                       15   See also I.C.J. Reports 2008, separate opinion of Judge Tomka, p. 522, para. 18.

                     165

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                     165 	 application of genocide convention (sep. op. tomka)

                     27 April 1992. But this factual continuity and identity should not be con-
                     fused with the situation in law, where the thesis of discontinuity between the
                     SFRY and the FRY in the end prevailed in view of the position taken by
                     some “key players” in the international community and the States, including
                     Croatia, which were earlier republics constituting the former SFRY. None-
                     theless, as the Court had to determine, in relation to acts which were com-
                     mitted after 27 April 1992, whether those acts were committed with the
                     necessary intent (dolus specialis), the Court could have looked at the events
                     occurring prior to that date in order to determine whether the later acts fell
                     within a particular pattern from which the intent could be inferred.
                       27. Hence, despite my position on the limitation of the Court’s juris-
                     diction ratione temporis, I was not prevented from joining my colleagues
                     on the Bench in looking at those acts and events preceding 27 April 1992
                     and joining them in their overall conclusion that the Croatian claim of
                     genocide having been committed during the armed conflict in its territory
                     must be rejected.

                                 II. Admissibility : The Monetary Gold Principle

                       28. Even if one accepts the Court’s conclusion on its jurisdiction, seri-
                     ous questions arise as to the admissibility of Croatia’s claim. As has been
                     noted, the Judgment takes the position that it is within the Court’s juris-
                     diction, as conferred by Article IX, for it to consider alleged breaches of
                     the Convention by the SFRY where Serbia is said to be responsible for
                     those breaches by way of succession to responsibility. The Court is
                     thereby indicating its readiness to rule on the responsibility of the SFRY,
                     a State that is no longer in existence and is not before the Court, as a
                     necessary precursor to determining the responsibility of the Respondent
                     State that is presently before the Court. Stated in such terms, this is rather
                     an unusual position for the Court to take.

                       29. In the Monetary Gold case, the Court found that it could not rule
                     on a claim brought by Italy against France, the United Kingdom and the
                     United States of America where a third State, Albania, was not before the
                     Court. The Court considered that :
                              “To adjudicate upon the international responsibility of Albania
                           without her consent would run counter to a well‑established principle
                           of international law embodied in the Court’s Statute, namely, that the
                           Court can only exercise jurisdiction over a State with its consent.”
                           (Monetary Gold Removed from Rome in 1943 (Italy v. France, United
                           Kingdom and United States of America), Preliminary Question, Judg‑
                           ment, I.C.J. Reports 1954, p. 32.)
                       30. It noted that “Albania’s legal interests would not only be affected
                     by a decision, but would form the very subject‑matter of the decision”
                     (ibid.) and accordingly declined to exercise its jurisdiction in respect of

                     166

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                     166 	 application of genocide convention (sep. op. tomka)

                     the claim. As the Court noted in the Nauru case, “the determination of
                     Albania’s responsibility was a prerequisite for a decision to be taken on
                     Italy’s claims” (Certain Phosphate Lands in Nauru (Nauru v. Australia),
                     Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 261, para. 55).

                        31. The Judgment makes it clear that the Court’s jurisdiction is depen-
                     dent, in relation to those acts occurring prior to 27 April 1992, on Croa-
                     tia’s argument that Serbia succeeded to the responsibility of the SFRY
                     for acts of genocide contrary to the Genocide Convention. A determina-
                     tion as to the responsibility of the SFRY is therefore an essential prereq-
                     uisite to a determination of whether Serbia’s responsibility is engaged.

                        32. However, in so far as the SFRY is concerned, the Court has opined
                     that the Monetary Gold principle is inapplicable in this case because the
                     SFRY has ceased to exist (Judgment, para. 116). This may be an accept-
                     able position to take where — as in the Gabčíkovo‑Nagymaros Project
                     case 16 — there is an agreement as to which of the successor States will
                     succeed to the relevant obligations of the State that has ceased to exist.
                     However, the position becomes more complicated where there is uncer-
                     tainty as to which of a number of States might ultimately bear responsi-
                     bility for the acts of a predecessor State 17. In this case, as has already
                     been noted, Serbia is only one of five equal successor States to the SFRY.
                     A decision as to the international responsibility of the SFRY may well
                     have implications for several, if not each, of those successor States,
                     depending on what view is taken on the question of the allocation of any
                     such responsibility as between them. This is particularly the case in light
                     of the fact that the 2001 Agreement on Succession Issues between the five
                     successor States provides that “[a]ll claims against the SFRY which are
                     not otherwise covered by this Agreement shall be considered by the
                     Standing Joint Committee established under Article 4” (United Nations,
                     Treaty Series, Vol. 2262, p. 251, Ann. F, Art. 2). It can be no answer that
                        16 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997,

                     p. 7. See the Preamble to the Special Agreement excerpted at page 11 and also page 81,
                     paragraph 151. See also Application of the Convention on the Prevention and Punishment of
                     the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports
                     2008, separate opinion of Judge Tomka, p. 521, para. 14.
                        17 See James Crawford, State Responsibility : The General Part, Cambridge University

                     Press, 2013, pp. 666‑667, discussing the Gabčíkovo-Nagymaros Project case :
                              “[E]ven if there had been no agreement that Slovakia would succeed to Czechoslo-
                           vakia’s rights and obligations under the treaty, and even if Hungary’s allegations of
                           internationally wrongful acts against Czechoslovakia was considered the very subject
                           matter of the dispute, there seems no question that the Court would have applied the
                           Monetary Gold principle to protect the legal interests of a State no longer in existence.
                           On the other hand, if a bilateral dispute between Hungary and the Czech Republic
                           had required the Court to determine whether or not Slovakia was the sole successor
                           state to Czechoslovakia in respect of some particular matter, the Court might well
                           have decided that it was prevented from acting by the Monetary Gold principle.”

                     167

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                     167 	 application of genocide convention (sep. op. tomka)

                     the Court has ultimately found that there was no breach of the Conven-
                     tion and accordingly the SFRY’s responsibility was not engaged.

                        33. Nonetheless, it bears emphasis that the operation of the Monetary
                     Gold principle will serve to limit the effects of the Judgment in this case.
                     The Court will be unable to exercise jurisdiction under Article IX, or any
                     other Convention which contains a clause providing for the jurisdiction
                     of the Court, over claims brought by one State party to the Convention
                     against another State party that are based on alleged breaches by a third
                     State that — for whatever reason — is not before the Court, where that
                     third State remains in existence. This Judgment is therefore strictly con-
                     fined to its unusual facts and should not be taken as a precedent that
                     compromissory clauses will normally be subject to such novel interpreta-
                     tions, nor that the Court will generally be prepared to rule on the respon-
                     sibility of States not before it.

                                             III. Concluding Remark

                        34. This case illustrates the limits of the Court’s judicial power, which
                     remains based on State consent. Where many States continue not to recog
                     nize its jurisdiction generally, but only in compromissory clauses con-
                     tained in certain multilateral conventions, then some claims, like the ones
                     in this case, are framed in such a way as to make them fall within the
                     scope of such a convention. But the threshold to prove them might be too
                     high, like in the case of genocide. The fact that the Court has rejected the
                     claim of Croatia and the counter‑claim of Serbia should not be viewed as
                     the Court not having seen the tragedy which unfolded in the process of
                     the disintegration of the former Yugoslavia. In fact, the Court has
                     acknowledged that many atrocities were committed during the armed
                     conflict. What the Parties failed to prove was the presence of genocidal
                     intent when these atrocities were perpetrated. Had the Court been
                     endowed with more general jurisdiction, the claims could have been
                     framed differently.
                        35. It is to be hoped that more States will, in the future, recognize the
                     Court’s jurisdiction much more broadly. The challenge for the Court
                     remains to strengthen the confidence of States not only by its display of
                     objectivity, impartiality and independence, but also by strictly interpret-
                     ing the provisions which confer jurisdiction on it. It can do that by focus-
                     ing its inquiries on whether jurisdiction has been conferred on it, rather
                     than by endeavouring to find ways how to assume it.

                                                                      (Signed) Peter Tomka.

                     168

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                                          9 JUNE 2006

                                            ORDER

  STATUS VIS-A
             v -VIS THE HOST STATE OF A DIPLOMATIC
           ENVOY TO THE UNITED NATIONS
   (COMMONWEALTH OF DOMINICA v. SWITZERLAND)

STATUT VIS-A
           v -VIS DE L’ÉTAT HÔTE D’UN ENVOYÉ DIPLOMA-
  TIQUE AUPRÈS DE L’ORGANISATION DES NATIONS UNIES
      (COMMONWEALTH DE DOMINIQUE c. SUISSE)

                                         9 JUIN 2006

                                       ORDONNANCE

               107

                              INTERNATIONAL COURT OF JUSTICE

   2006                                       YEAR 2006
  9 June
General List
 No. 134                                      9 June 2006

                         CASE CONCERNING THE STATUS
                           VIS-À-VIS THE HOST STATE
                           OF A DIPLOMATIC ENVOY
                            TO THE UNITED NATIONS
                     (COMMONWEALTH OF DOMINICA v. SWITZERLAND)

                                                ORDER

               Present : President HIGGINS ; Vice-President AL-KHASAWNEH ; Judges
                         KOROMA, PARRA-ARANGUREN, BUERGENTHAL, OWADA, SIMMA,
                         ABRAHAM, KEITH, SEPÚLVEDA-AMOR, BENNOUNA, SKOTNIKOV ;
                         Registrar COUVREUR.

                   The International Court of Justice,
                 Composed as above,
                 After deliberation,
                 Having regard to Article 48 of the Statute of the Court and to
               Article 89, paragraph 1, of the Rules of Court,
                 Having regard to the Application filed in the Registry of the Court on
               26 April 2006, whereby the Commonwealth of Dominica instituted pro-
               ceedings against the Swiss Confederation in respect of a dispute concerning
                     “violations of the Vienna Convention on Diplomatic Relations of
                     18 April 1961 . . ., the Headquarters Agreement between Switzerland
                     and the United Nations of 11 June and 1 July 1946, the Agreement
                     on Privileges and Immunities of the United Nations between
                     Switzerland and the United Nations of 11 April 1946, the Convention

               4

108           STATUS OF A DIPLOMATIC ENVOY (ORDER 9 VI 06)

      on Privileges and Immunities of the United Nations of 13 February
      1946 as well as general well-established rules and principles of inter-
      national law on appointment and withdrawal of diplomats, on
      diplomatic immunity, on equality of States and on the rights of
      the United Nations of passive legation” ;

   Whereas a certified copy of this Application was immediately trans-
mitted to the Government of the Swiss Confederation, pursuant to
Article 38, paragraph 4, of the Rules of Court ;
   Whereas, by a letter dated 15 May 2006, received in the Registry by fac-
simile on 24 May 2006 under cover of two letters from the Permanent Rep-
resentative of the Commonwealth of Dominica to the United Nations, and
the original of which has reached the Registry on 6 June 2006, the Prime
Minister of the Commonwealth of Dominica, referring to Article 89 of the
Rules of Court, informed the Court that the Government of the Common-
wealth of Dominica “[did] not wish to go on with the proceedings insti-
tuted against Switzerland” and requested the Court to make an Order
“officially recording the unconditional discontinuance” of these proceed-
ings and “directing the removal of the case from the General List” ;
   Whereas a copy of that letter was immediately transmitted to the
Government of the Swiss Confederation ;
   Whereas, by a letter dated 24 May 2006 and received in the Registry on
the same day by facsimile, the Ambassador of Switzerland in The Hague
advised the Court that he had informed the competent Swiss authorities
of the discontinuance notified by the Prime Minister of Dominica ;
   Whereas the Government of the Swiss Confederation has not taken
any step in the proceedings,
  Places on record the discontinuance by the Commonwealth of
Dominica of the proceedings instituted by the Application filed on
26 April 2006 ; and
  Orders that the case be removed from the List.

   Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this ninth day of June, two thousand and six,
in three copies, one of which will be placed in the archives of the Court
and the others transmitted to the Government of the Commonwealth of
Dominica and the Government of the Swiss Confederation, respectively.

                                            (Signed) Rosalyn HIGGINS,
                                                        President.
                                          (Signed) Philippe COUVREUR,
                                                        Registrar.

5