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“Subukan lang nilang hindi i-nullify yung ZTE. Baka may makita kayong good big fat man na burning down the house!”
B. International Organizations
Vienna Convention on Consular Relations and Optional Protocols
The States Parties to the present Convention,
Recalling that consular relations have been established between peoples since ancient
times,
Having in mind the Purposes and Principles of the Charter of the United Nation
concerning the sovereign equality of States, the maintenance of international peace and
security, and the promotion of friendly relations among nations,
Considering that the United Nations Conference on Diplomatic Intercourse and
Immunities adopted the Vienna Convention on Diplomatic Relations which was opened
for signature on 18 April 1961,
Believing that an international convention on consular relations, privileges and
immunities would also contribute to the development of friendly relations among nations,
irrespective of their differing constitutional and social systems,
Realizing that the purpose of such privileges and immunities is not to benefit individuals Article 4 ESTABLISHMENT OF A CONSULAR POST
but to ensure the efficient performance of functions by consular posts on behalf of their
respective States,
Affirming that the rules of customary international law continue to govern matters not
expressly regulated by the provisions of the present Convention,
Have agreed as follows:
Article 1 DEFINITIONS
For the purposes of the present Convention, the following expressions shall have the
meanings hereunder assigned to them:
"consular post" means any consulate-general, consulate, vice-consulate or consular
agency;
"consular district" means the area assigned to a consular post for the exercise of
consular functions;
"head of consular post" means the person charged with the duty of acting in that
capacity;
"consular officer" means any person, including the head of a consular post, entrusted in
that capacity with the exercise of consular functions;
"consular employee" means any person employed in the administrative or technical
service of a consular post;
"member of the service staff" means any person employed in the domestic service of a
consular post;
"members of the consular post" means consular officers, consular employees and
members of the service staff;
"members of the consular staff" means consular officers, other than the head of a
consular post, consular employees and members of the service staff;
"member of the private staff" means a person who is employed exclusively in the
private service of a member of the consular post;
"consular premises" means the buildings or parts of buildings and the land ancillary
thereto, irrespective of ownership, used exclusively for the purposes of the consular post; certain functions of an administrative nature, provided that there is nothing contrary
"consular archives" includes all the papers, documents, correspondence, books, films,
tapes and registers of the consular post, together with the ciphers and codes, the card-
indexes and any article of furniture intended for their protection or safekeeping.
UPLAW 2009 B
Consular officers are of two categories, namely career consular officers and honorary
consular officers. The provisions of Chapter II of the present Convention apply to
consular posts headed by career consular officers; the provisions of Chapter III govern
consular posts headed by honorary consular officers.
The particular status of members of the consular posts who are nationals or permanent
residents of the receiving State is governed by Article 71 of the present Convention.
CHAPTER I CONSULAR RELATIONS IN GENERAL
Section I ESTABLISHMENT AND CONDUCT OF CONSULAR RELATIONS
Article 2 ESTABLISHMENT OF CONSULAR RELATIONS
The establishment of consular relations between States takes place by mutual consent.
The consent given to the establishment of diplomatic relations between two States
implies, unless otherwise stated, consent to the establishment of consular relations.
The severance of diplomatic relations shall not ipso facto involve the severance of
consular relations.
Article 3 EXERCISE OF CONSULAR FUNCTIONS
Consular functions are exercised by consular posts. They are also exercised by
diplomatic missions in accordance with the provisions of the present Convention.
A consular post may be established in the territory of the receiving State only with that
State's consent.
The seat of the consular post, its classification and the consular district shall be
established by the sending State and shall be subject to the approval of the receiving
State.
Subsequent changes in the seat of the consular post, its classification or the consular
district may be made by the sending State only with the consent of the receiving State.
The consent of the receiving State shall also be required if a consulate-general or a
consulate desires to open a vice-consulate or a consular agency in a locality other than
that in which it is itself established.
The prior express consent of the receiving State shall also be required for the opening of
an office forming part of an existing consular post elsewhere than at the seat thereof.
Article 5 CONSULAR FUNCTIONS
Consular functions consist in:
(a) protecting in the receiving State the interests of the sending State and of its nationals,
both individuals and bodies corporate, within the limits permitted by international law;
(b) furthering the development of commercial, economic, cultural and scientific relations
between the sending State and the receiving State and otherwise promoting friendly
relations between them in accordance with the provisions of the present Convention;
(c) ascertaining by all lawful means conditions and developments in the commercial,
economic, cultural and scientific life of the receiving State, reporting thereon to the
Government of the sending State and giving information to persons interested;
(d) issuing passports and travel documents to nationals of the sending State, and visas
or appropriate documents to persons wishing to travel to the sending State;
(e) helping and assisting nationals, both individuals and bodies corporate, of the sending
State;
(f) acting as notary and civil registrar and in capacities of a similar kind, and performing
thereto in the laws and regulations of the receiving State;
(g) safeguarding the interests of nationals, both individuals and bodies corporate, of the
sending State in cases of succession mortis causa in the territory of the receiving State,
in accordance with the laws and regulations of the receiving State;
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(h) safeguarding, within the limits imposed by the laws and regulations of the receiving
State, the interests of minors and other persons lacking full capacity who are nationals of
the sending State, particularly where any guardianship or trusteeship is required with
respect to such persons;
(i) subject to the practices and procedures obtaining in the receiving State, representing
or arranging appropriate representation for nationals of the sending State before the
tribunals and other authorities of the receiving State, for the purpose of obtaining, in
accordance with the laws and regulations of the receiving State, provisional measures
for the preservation of the rights and interests of these nationals, where, because of
absence or any other reason, such nationals are unable at the proper time to assume the
defence of their rights and interests;
(j) transmitting judicial and extrajudicial documents or executing letters rogatory or
commissions to take evidence for the courts of the sending State in accordance with
international agreements in force or, in the absence of such international agreements, in
any other manner compatible with the laws and regulations of the receiving State;
(k) exercising rights of supervision and inspection provided for in the laws and
regulations of the sending State in respect of vessels having the nationality of the
sending State, and of aircraft registered in that State, and in respect of their crews;
(l) extending assistance to vessels and aircraft mentioned in sub-paragraph (k) of this
Article and to their crews, taking statements regarding the voyage of a vessel, examining
and stamping the ship's papers, and, without prejudice to the powers of the authorities of
the receiving State, conducting investigations into any incidents which occurred during
the voyage, and settling disputes of any kind between the master, the officers and the
seamen in so far as this may be authorized by the laws and regulations of the sending
State;
(m) performing any other functions entrusted to a consular post by the sending State
which are not prohibited by the laws and regulations of the receiving State or to which no
objection is taken by the receiving State or which are referred to in the international
agreements in force between the sending State and the receiving State.
Article 6 EXERCISE OF CONSULAR FUNCTIONS OUTSIDE THE CONSULAR
DISTRICT
A consular officer may, in special circumstances, with the consent of the receiving State,
exercise his functions outside his consular district.
Article 7 EXERCISE OF CONSULAR FUNCTIONS IN A THIRD STATE
The sending State may, after notifying the States concerned, entrust a consular post
established in a particular State with the exercise of consular functions in another State,
unless there is express objection by one of the States concerned.
Article 8 EXERCISE OF CONSULAR FUNCTIONS ON BEHALF OF A THIRD STATE
Upon appropriate notification to the receiving State, a consular post of the sending State
may, unless the receiving State objects, exercise consular functions in the receiving
State on behalf of a third State.
Article 9 CLASSES OF HEADS OF CONSULAR POSTS
Heads of consular posts are divided into four classes, namely:
consuls-general;
consuls;
vice-consuls;
consular agents.
Paragraph 1 of this Article in no way restricts the right of any of the Contracting Parties to
fix the designation of consular officers other than the heads of consular posts.
Article 10 APPOINTMENT AND ADMISSION OF HEADS OF CONSULAR POSTS
Heads of consular posts are appointed by the sending State and are admitted to the
exercise of their functions by the receiving State.
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Subject to the provisions of the present Convention, the formalities for the appointment
and for the admission of the head of a consular post are determined by the laws,
regulations and usages of the sending State and of the receiving State respectively.
Article 11 THE CONSULAR COMMISSION OR NOTIFICATION OF APPOINTMENT
The head of a consular post shall be provided by the sending State with a document, in
the form of a commission or similar instrument, made out for each appointment,
certifying his capacity and showing, as a general rule, his full name, his category and
class, the consular district and the seat of the consular post.
The sending State shall transmit the commission or similar instrument through the
diplomatic or other appropriate channel to the Government of the State in whose territory
the head of a consular post is to exercise his functions.
If the receiving State agrees, the sending State may, instead of a commission or similar
instrument, send to the receiving State a notification containing the particulars required
by paragraph 1 of this Article.
Article 12 THE EXEQUATUR
The head of a consular post is admitted to the exercise of his functions by an
authorization from the receiving State termed an exequatur, whatever the form of this
authorization.
A State which refuses to grant an exequatur is not obliged to give to the sending State
reasons for such refusal.
Subject to the provisions of Articles 13 and 15, the head of a consular post shall not
enter upon his duties until he has received an exequatur.
Article 13 PROVISIONAL ADMISSION OF HEADS OF CONSULAR POSTS
Pending delivery of the exequatur, the head of a consular post may be admitted on a
provisional basis to the exercise of his functions. In that case, the provisions of the
present Convention shall apply.
Article 14 NOTIFICATION TO THE AUTHORITIES OF THE CONSULAR DISTRICT
As soon as the head of a consular post is admitted even provisionally to the exercise of
his functions, the receiving State shall immediately notify the competent authorities of the
consular district. It shall also ensure that the necessary measures are taken to enable
the head of a consular post to carry out the duties of his office and to have the benefit of
the provisions of the present Convention.
Article 15 TEMPORARY EXERCISE OF THE FUNCTIONS OF THE HEAD OF A
CONSULAR POST
If the head of a consular post is unable to carry out his functions or the position of head
of consular post is vacant, an acting head of post may act provisionally as head of the
consular post.
The full name of the acting head of post shall be notified either by the diplomatic mission
of the sending State or, if that State has no such mission in the receiving State, by the
head of the consular post, or, if he is unable to do so, by any competent authority of the
sending State, to the Ministry for Foreign Affairs of the receiving State or to the authority
designated by that Ministry. As a general rule, this notification shall be given in advance.
The receiving State may make the admission as acting head of post of a person who is
neither a diplomatic agent nor a consular officer of the sending State in the receiving
State conditional on its consent.
The competent authorities of the receiving State shall afford assistance and protection to
the acting head of post. While he is in charge of the post, the provisions of the present
Convention shall apply to him on the same basis as to the head of the consular post
concerned. The receiving State shall not, however, be obliged to grant to an acting head
of post any facility, privilege or immunity which the head of the consular post enjoys only
subject to conditions not fulfilled by the acting head of post.
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When, in the circumstances referred to in paragraph 1 of this Article, a member of the
diplomatic staff of the diplomatic mission of the sending State in the receiving State is
designated by the sending State as an acting head of post, he shall, if the receiving State
does not object thereto, continue to enjoy diplomatic privileges and immunities.
Article 16 PRECEDENCE AS BETWEEN HEADS OF CONSULAR POSTS
Heads of consular posts shall rank in each class according to the date of the grant of the
exequatur.
If, however, the head of a consular post before obtaining the exequatur is admitted to the
exercise of his functions provisionally, his precedence shall be determined according to
the date of the provisional admission; this precedence shall be maintained after the
granting of the exequatur.
The order of precedence as between two or more heads of consular posts who obtained
the exequatur or provisional admission on the same date shall be determined according
to the dates on which their commissions or similar instruments or the notifications
referred to in paragraph 3 of Article 11 were presented to the receiving State.
Acting heads of posts shall rank after all heads of consular posts and, as between
themselves, they shall rank according to the dates on which they assumed their
functions as acting heads of posts as indicated in the notifications given under paragraph
2 of Article 15.
Honorary consular officers who are heads of consular posts shall rank in each class after
career heads of consular posts, in the order and according to the rules laid down in the
foregoing paragraphs.
Heads of consular posts shall have precedence over consular officers not having that
status.
Article 17 PERFORMANCE OF DIPLOMATIC ACTS BY CONSULAR OFFICERS
In a State where the sending State has no diplomatic mission and is not represented by
a diplomatic mission of a third State, a consular officer may, with the consent of the
receiving State, and without affecting his consular status, be authorized to perform
diplomatic acts. The performance of such acts by a consular officer shall not confer upon
him any right to claim diplomatic privileges and immunities.
A consular officer may, after notification addressed to the receiving State, act as
representative of the sending State to any inter-governmental organization. When so
acting, he shall be entitled to enjoy any privileges and immunities accorded to such a
representative by customary international law or by international agreements; however,
in respect of the performance by him of any consular function, he shall not be entitled to
any greater immunity from jurisdiction than that to which a consular officer is entitled
under the present Convention.
Article 18 APPOINTMENT OF THE SAME PERSON BY TWO OR MORE STATES AS
A CONSULAR OFFICER
Two or more States may, with the consent of the receiving State, appoint the same
person as a consular officer in that State.
Article 19 APPOINTMENT OF MEMBERS OF CONSULAR STAFF
Subject to the provisions of Articles 20, 22 and 23, the sending State may freely appoint
the members of the consular staff.
The full name, category and class of all consular officers, other than the head of a
consular post, shall be notified by the sending State to the receiving State in sufficient
time for the receiving State, if it so wishes, to exercise its rights under paragraph 3 of
Article 23.
The sending State may, if required by its laws and regulations, request the receiving
State to grant an exequatur to a consular officer other than the head of a consular post.
The receiving State may, if required by its laws and regulations, grant an exequatur to a
consular officer other than the head of a consular post.
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Article 20 SIZE OF THE CONSULAR STAFF
In the absence of an express agreement as to the size of the consular staff, the receiving
State may require that the size of the staff be kept within limits considered by it to be
reasonable and normal, having regard to circumstances and conditions in the consular
district and to the needs of the particular post.
Article 21 PRECEDENCE AS BETWEEN CONSULAR OFFICERS OF A CONSULAR
POST
The order of precedence as between the consular officers of a consular post and any
change thereof shall be notified by the diplomatic mission of the sending State or, if that
State has no such mission in the receiving State, by the head of the consular post, to the
Ministry for Foreign Affairs of the receiving State or to the authority designated by that
Ministry.
Article 22 NATIONALITY OF CONSULAR OFFICERS
Consular officers should, in principle, have the nationality of the sending State.
Consular officers may not be appointed from among persons having the nationality of the
receiving State except with the express consent of that State which may be withdrawn at
any time.
The receiving State may reserve the same right with regard to nationals of a third State
who are not also nationals of the sending State.
Article 23 PERSONS DECLARED "NON GRATA"
The receiving State may at any time notify the sending State that a consular officer is
persona non grata or that any other member of the consular staff is not acceptable. In
that event, the sending State shall, as the case may be, either recall the person
concerned or terminate his functions with the consular post.
If the sending State refuses or fails within a reasonable time to carry out its obligations
under paragraph 1 of this Article, the receiving State may, as the case may be, either
withdraw the exequatur from the person concerned or cease to consider him as a
member of the consular staff.
A person appointed as a member of a consular post may be declared unacceptable
before arriving in the territory of the receiving State or, if already in the receiving State,
before entering on his duties with the consular post. In any such case, the sending State
shall withdraw his appointment.
In the cases mentioned in paragraphs 1 and 3 of this Article, the receiving State is not
obliged to give to the sending State reasons for its decision.
Article 24 NOTIFICATION TO THE RECEIVING STATE OF APPOINTMENTS,
ARRIVALS AND DEPARTURES
The Ministry for Foreign Affairs of the receiving State or the authority designated by that
Ministry shall be notified of:
the appointment of members of a consular post, their arrival after appointment to the
consular post, their final departure or the termination of their functions and any other
changes affecting their status that may occur in the course of their service with the
consular post;
the arrival and final departure of a person belonging to the family of a member of a
consular post forming part of his household and, where appropriate, the fact that a
person becomes or ceases to be such a member of the family;
the arrival and final departure of members of the private staff and, where appropriate, the
termination of their service as such;
the engagement and discharge of persons resident in the receiving State as members of
a consular post or as members of the private staff entitled to privileges and immunities.
When possible, prior notification of arrival and final departure shall also be given.
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Section II END OF CONSULAR FUNCTIONS
Article 25 TERMINATION OF THE FUNCTIONS OF A MEMBER OF A CONSULAR
POST
The functions of a member of a consular post shall come to an end inter alia:
(a) on notification by the sending State to the receiving State that his functions have
come to an end;
(b) on withdrawal of the exequatur;
(c) on notification by the receiving State to the sending State that the receiving State has
ceased to consider him as a member of the consular staff.
Article 26 DEPARTURE FROM THE TERRITORY OF THE RECEIVING STATE
The receiving State shall, even in case of armed conflict, grant to members of the
consular post and members of the private staff, other than nationals of the receiving
State, and to members of their families forming part of their households irrespective of
nationality, the necessary time and facilities to enable them to prepare their departure
and to leave at the earliest possible moment after the termination of the functions of the
members concerned. In particular, it shall, in case of need, place at their disposal the
necessary means of transport for themselves and their property other than property
acquired in the receiving State the export of which is prohibited at the time of departure.
Article 27 PROTECTION OF CONSULAR PREMISES AND ARCHIVES AND OF THE
INTERESTS OF THE SENDING STATE IN EXCEPTIONAL CIRCUMSTANCES
In the event of the severance of consular relations between two States:
the receiving State shall, even in case of armed conflict, respect and protect the consular
premises, together with the property of the consular post and the consular archives;
the sending State may entrust the custody of the consular premises, together with the
property contained therein and the consular archives, to a third State acceptable to the
receiving State;
the sending State may entrust the protection of its interests and those of its nationals to a
third State acceptable to the receiving State.
In the event of the temporary or permanent closure of a consular post, the provisions of
sub-paragraph (a) of paragraph 1 of this Article shall apply. In addition,
if the sending State, although not represented in the receiving State by a diplomatic
mission, has another consular post in the territory of that State, that consular post may
be entrusted with the custody of the premises of the consular post which has been
closed, together with the property contained therein and the consular archives, and, with
the consent of the receiving State, with the exercise of consular functions in the district of
that consular post; or (b) if the sending State has no diplomatic mission and no other
consular post in the receiving State, the provisions of sub-paragraphs (b) and of
paragraph 1 of this Article shall apply.
CHAPTER II FACILITIES, PRIVILEGES AND IMMUNITIES RELATING TO CONSULAR
POSTS, CAREER CONSULAR OFFICERS AND OTHER MEMBERS OF A
CONSULAR POST
Section I FACILITIES, PRIVILEGES AND IMMUNITIES RELATING TO A CONSULAR
POST
Article 28 FACILITIES FOR THE WORK OF THE CONSULAR POST
The receiving State shall accord full facilities for the performance of the functions of the
consular post.
Article 29 USE OF NATIONAL FLAG AND COAT-OF-ARMS
The sending State shall have the right to the use of its national flag and coat-of-arms in
the receiving State in accordance with the provisions of this Article.
The national flag of the sending State may be flown and its coat-of-arms displayed on
the building occupied by the consular post and at the entrance door thereof, on the
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residence of the head of the consular post and on his means of transport when used on
official business.
In the exercise of the right accorded by this Article regard shall be had to the laws,
regulations and usages of the receiving State.
Article 30 ACCOMMODATION
The receiving State shall either facilitate the acquisition on its territory, in accordance
with its laws and regulations, by the sending State of premises necessary for its consular
post or assist the latter in obtaining accommodation in some other way.
It shall also, where necessary, assist the consular post in obtaining suitable
accommodation for its members.
Article 31 INVIOLABILITY OF THE CONSULAR PREMISES
Consular premises shall be inviolable to the extent provided in this Article.
The authorities of the receiving State shall not enter that part of the consular premises
which is used exclusively for the purpose of the work of the consular post except with the
consent of the head of the consular post or of his designee or of the head of the
diplomatic mission of the sending State. The consent of the head of the consular post
may, however, be assumed in case of fire or other disaster requiring prompt protective
action.
Subject to the provisions of paragraph 2 of this Article, the receiving State is under a
special duty to take all appropriate steps to protect the consular premises against any
intrusion or damage and to prevent any disturbance of the peace of the consular post or
impairment of its dignity.
The consular premises, their furnishings, the property of the consular post and its means
of transport shall be immune from any form of requisition for purposes of national
defence or public utility. If expropriation is necessary for such purposes, all possible
steps shall be taken to avoid impeding the performance of consular functions, and
prompt, adequate and effective compensation shall be paid to the sending State.
Article 32 EXEMPTION FROM TAXATION OF CONSULAR PREMISES
Consular premises and the residence of the career head of consular post of which the
sending State or any person acting on its behalf is the owner or lessee shall be exempt
from all national, regional or municipal dues and taxes whatsoever, other than such as
represent payment for specific services rendered.
The exemption from taxation referred to in paragraph 1 of this Article shall not apply to
such dues and taxes if, under the law of the receiving State, they are payable by the
person who contracted with the sending State or with the person acting on its behalf.
Article 33 INVIOLABILITY OF THE CONSULAR ARCHIVES AND DOCUMENTS
The consular archives and documents shall be inviolable at all times and wherever they
may be.
Article 34 FREEDOM OF MOVEMENT
Subject to its laws and regulations concerning zones entry into which is prohibited or
regulated for reasons of national security, the receiving State shall ensure freedom of
movement and travel in its territory to all members of the consular post.
Article 35 FREEDOM OF COMMUNICATION
The receiving State shall permit and protect freedom of communication on the part of the
consular post for all official purposes. In communicating with the Government, the
diplomatic missions and other consular posts, wherever situated, of the sending State,
the consular post may employ all appropriate means, including diplomatic or consular
couriers, diplomatic or consular bags and messages in code or cipher. However, the
consular post may install and use a wireless transmitter only with the consent of the
receiving State.
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The official correspondence of the consular post shall be inviolable. Official
correspondence means all correspondence relating to the consular post and its
functions.
The consular bag shall be neither opened nor detained. Nevertheless, if the competent
authorities of the receiving State have serious reason to believe that the bag contains
something other than the correspondence, documents or articles referred to in paragraph
4 of this Article, they may request that the bag be opened in their presence by an
authorized representative of the sending State. If this request is refused by the
authorities of the sending State, the bag shall be returned to its place of origin.
The packages constituting the consular bag shall bear visible external marks of their
character and may contain only official correspondence and documents or articles
intended exclusively for official use.
The consular courier shall be provided with an official document indicating his status and
the number of packages constituting the consular bag. Except with the consent of the
receiving State he shall be neither a national of the receiving State, nor, unless he is a
national of the sending State, a permanent resident of the receiving State. In the
performance of his functions he shall be protected by the receiving State. He shall enjoy
personal inviolability and shall not be liable to any form of arrest or detention.
The sending State, its diplomatic missions and its consular posts may designate
consular couriers ad hoc. In such cases the provisions of paragraph 5 of this Article shall
also apply except that the immunities therein mentioned shall cease to apply when such
a courier has delivered to the consignee the consular bag in his charge.
A consular bag may be entrusted to the captain of a ship or of a commercial aircraft
scheduled to land at an authorized port of entry. He shall be provided with an official
document indicating the number of packages constituting the bag, but he shall not be
considered to be a consular courier. By arrangement with the appropriate local
authorities, the consular post may send one of its members to take possession of the
bag directly and freely from the captain of the ship or of the aircraft.
Article 36 COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING
STATE
With a view to facilitating the exercise of consular functions relating to nationals of the
sending State:
consular officers shall be free to communicate with nationals of the sending State and to
have access to them. Nationals of the sending State shall have the same freedom with
respect to communication with and access to consular officers of the sending State;
if he so requests, the competent authorities of the receiving State shall, without delay,
inform the consular post of the sending State if, within its consular district, a national of
that State is arrested or committed to prison or to custody pending trial or is detained in
any other manner. Any communication addressed to the consular post by the person
arrested, in prison, custody or detention shall also be forwarded by the said authorities
without delay. The said authorities shall inform the person concerned without delay of his
rights under this sub-paragraph;
consular officers shall have the right to visit a national of the sending State who is in
prison, custody or detention, to converse and correspond with him and to arrange for his
legal representation. They shall also have the right to visit any national of the sending
State who is in prison, custody or detention in their district in pursuance of a judgment.
Nevertheless, consular officers shall refrain from taking action on behalf of a national
who is in prison, custody or detention if he expressly opposes such action.
The rights referred to in paragraph 1 of this Article shall be exercised in conformity with
the laws and regulations of the receiving State, subject to the proviso, however, that the
said laws and regulations must enable full effect to be given to the purposes for which
the rights accorded under this Article are intended.
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Article 37 INFORMATION IN CASES OF DEATHS, GUARDIANSHIP OR
TRUSTEESHIP, WRECKS AND AIR ACCIDENTS
If the relevant information is available to the competent authorities of the receiving State,
such authorities shall have the duty:
(a) in the case of the death of a national of the sending State, to inform without delay the
consular post in whose district the death occurred;
(b) to inform the competent consular post without delay of any case where the
appointment of a guardian or trustee appears to be in the interests of a minor or other
person lacking full capacity who is a national of the sending State. The giving of this
information shall, however, be without prejudice to the operation of the laws and
regulations of the receiving State concerning such appointments;
(c) if a vessel, having the nationality of the sending State, is wrecked or runs aground in
the territorial sea or internal waters of the receiving State, or if an aircraft registered in
the sending State suffers an accident on the territory of the receiving State, to inform
without delay the consular post nearest to the scene of the occurrence.
Article 38 COMMUNICATION WITH THE AUTHORITIES OF THE RECEIVING STATE
In the exercise of their functions, consular officers may address:
(a) the competent local authorities of their consular district;
(b) the competent central authorities of the receiving State if and to the extent that this is
allowed by the laws, regulations and usages of the receiving State or by the relevant
international agreements.
Article 39 CONSULAR FEES AND CHARGES
The consular post may levy in the territory of the receiving State the fees and charges
provided by the laws and regulations of the sending State for consular acts.
The sums collected in the form of the fees and charges referred to in paragraph 1 of this
Article, and the receipts for such fees and charges, shall be exempt from all dues and
taxes in the receiving State.
Section II FACILITIES, PRIVILEGES AND IMMUNITIES RELATING TO CAREER
CONSULAR OFFICERS AND OTHER MEMBERS OF A CONSULAR POST
Article 40 PROTECTION OF CONSULAR OFFICERS
The receiving State shall treat consular officers with due respect and shall take all
appropriate steps to prevent any attack on their person, freedom or dignity.
Article 41 PERSONAL INVIOLABILITY OF CONSULAR OFFICERS
Consular officers shall not be liable to arrest or detention pending trial, except in the case
of a grave crime and pursuant to a decision by the competent judicial authority.
Except in the case specified in paragraph 1 of this Article, consular officers shall not be
committed to prison or liable to any other form of restriction on their personal freedom
save in execution of a judicial decision of final effect.
If criminal proceedings are instituted against a consular officer, he must appear before
the competent authorities. Nevertheless, the proceedings shall be conducted with the
respect due to him by reason of his official position and, except in the case specified in
paragraph 1 of this Article, in a manner which will hamper the exercise of consular
functions as little as possible. When, in the circumstances mentioned in paragraph 1 of
this Article, it has become necessary to detain a consular officer, the proceedings against
him shall be instituted with the minimum of delay.
Article 42 NOTIFICATION OF ARREST, DETENTION OR PROSECUTION
In the event of the arrest or detention, pending trial, of a member of the consular staff, or
of criminal proceedings being instituted against him, the receiving State shall promptly
notify the head of the consular post. Should the latter be himself the object of any such
measure, the receiving State shall notify the sending State through the diplomatic
channel.
Article 43 IMMUNITY FROM JURISDICTION
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Consular officers and consular employees shall not be amenable to the jurisdiction of the
judicial or administrative authorities of the receiving State in respect of acts performed in
the exercise of consular functions.
The provisions of paragraph 1 of this Article shall not, however, apply in respect of a civil
action either:
arising out of a contract concluded by a consular officer or a consular employee in which
he did not contract expressly or impliedly as an agent of the sending State; or
by a third party for damage arising from an accident in the receiving State caused by a
vehicle, vessel or aircraft.
Article 44 LIABILITY TO GIVE EVIDENCE
Members of a consular post may be called upon to attend as witnesses in the course of
judicial or administrative proceedings. A consular employee or a member of the service
staff shall not, except in the cases mentioned in paragraph 3 of this Article, decline to
give evidence. If a consular officer should decline to do so, no coercive measure or
penalty may be applied to him.
The authority requiring the evidence of a consular officer shall avoid interference with the
performance of his functions. It may, when possible, take such evidence at his residence
or at the consular post or accept a statement from him in writing.
Members of a consular post are under no obligation to give evidence concerning matters
connected with the exercise of their functions or to produce official correspondence and
documents relating thereto. They are also entitled to decline to give evidence as expert
witnesses with regard to the law of the sending State.
Article 45 WAIVER OF PRIVILEGES AND IMMUNITIES
The sending State may waive, with regard to a member of the consular post, any of the
privileges and immunities provided for in Articles 41, 43 and 44.
The waiver shall in all cases be express, except as provided in paragraph 3 of this
Article, and shall be communicated to the receiving State in writing.
The initiation of proceedings by a consular officer or a consular employee in a matter
where he might enjoy immunity from jurisdiction under Article 43 shall preclude him from
invoking immunity from jurisdiction in respect of any counter-claim directly connected
with the principal claim.
The waiver of immunity from jurisdiction for the purposes of civil or administrative
proceedings shall not be deemed to imply the waiver of immunity from the measures of
execution resulting from the judicial decision; in respect of such measures, a separate
waiver shall be necessary.
Article 46 EXEMPTION FROM REGISTRATION OF ALIENS AND RESIDENCE
PERMITS
Consular officers and consular employees and members of their families forming part of
their households shall be exempt from all obligations under the laws and regulations of
the receiving State in regard to the registration of aliens and residence permits.
The provisions of paragraph 1 of this Article shall not, however, apply to any consular
employee who is not a permanent employee of the sending State or who carries on any
private gainful occupation in the receiving State or to any member of the family of any
such employee.
Article 47 EXEMPTION FROM WORK PERMITS
Members of the consular post shall, with respect to services rendered for the sending
State, be exempt from any obligations in regard to work permits imposed by the laws and
regulations of the receiving State concerning the employment of foreign labour.
Members of the private staff of consular officers and of consular employees shall, if they
do not carry on any other gainful occupation in the receiving State, be exempt from the
obligations referred to in paragraph 1 of this Article.
Article 48 SOCIAL SECURITY EXEMPTION
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Subject to the provisions of paragraph 3 of this Article, members of the consular post
with respect to services rendered by them for the sending State, and members of their
families forming part of their households, shall be exempt from social security provisions
which may be in force in the receiving State.
The exemption provided for in paragraph 1 of this Article shall apply also to members of
the private staff who are in the sole employ of members of the consular post, on
condition:
that they are not nationals of or permanently resident in the receiving State; and
that they are covered by the social security provisions which are in force in the sending
State or a third State.
Members of the consular post who employ persons to whom the exemption provided for
in paragraph 2 of this Article does not apply shall observe the obligations which the
social security provisions of the receiving State impose upon employers.
The exemption provided for in paragraphs 1 and 2 of this Article shall not preclude
voluntary participation in the social security system of the receiving State, provided that
such participation is permitted by that State.
Article 49 EXEMPTION FROM TAXATION
Consular officers and consular employees and members of their families forming part of
their households shall be exempt from all dues and taxes, personal or real, national,
regional or municipal, except:
indirect taxes of a kind which are normally incorporated in the price of goods or services;
dues or taxes on private immovable property situated in the territory of the receiving
State, subject to the provisions of Article 32;
estate, succession or inheritance duties, and duties on transfers, levied by the receiving
State, subject to the provisions of paragraph of Article 51;
dues and taxes on private income, including capital gains, having its source in the
receiving State and capital taxes relating to investments made in commercial or financial
undertakings in the receiving State;
charges levied for specific services rendered;
registration, court or record fees, mortgage dues and stamp duties, subject to the
provisions of Article 32.
Members of the service staff shall be exempt from dues and taxes on the wages which
they receive for their services.
Members of the consular post who employ persons whose wages or salaries are not
exempt from income tax in the receiving State shall observe the obligations which the
laws and regulations of that State impose upon employers concerning the levying of
income tax.
Article 50 EXEMPTION FROM CUSTOMS DUTIES AND INSPECTION
The receiving State shall, in accordance with such laws and regulations as it may adopt,
permit entry of and grant exemption from all customs duties, taxes, and related charges
other than charges for storage, cartage and similar services, on:
articles for the official use of the consular post;
articles for the personal use of a consular officer or members of his family forming part of
his household, including articles intended for his establishment. The articles intended for
consumption shall not exceed the quantities necessary for direct utilization by the
persons concerned.
Consular employees shall enjoy the privileges and exemptions specified in paragraph 1
of this Article in respect of articles imported at the time of first installation.
Personal baggage accompanying consular officers and members of their families forming
part of their households shall be exempt from inspection. It may be inspected only if
there is serious reason to believe that it contains articles other than those referred to in
sub-paragraph (b) of paragraph 1 of this Article, or articles the import or export of which
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is prohibited by the laws and regulations of the receiving State or which are subject to its
quarantine laws and regulations. Such inspection shall be carried out in the presence of
the consular officer or member of his family concerned.
Article 51 ESTATE OF A MEMBER OF THE CONSULAR POST OR OF A MEMBER
OF HIS FAMILY
In the event of the death of a member of the consular post or of a member of his family
forming part of his household, the receiving State:
(a) shall permit the export of the movable property of the deceased, with the exception of
any such property acquired in the receiving State the export of which was prohibited at
the time of his death;
(b) shall not levy national, regional or municipal estate, succession or inheritance duties,
and duties on transfers, on movable property the presence of which in the receiving
State was due solely to the presence in that State of the deceased as a member of the
consular post or as a member of the family of a member of the consular post.
Article 52 EXEMPTION FROM PERSONAL SERVICES AND CONTRIBUTIONS
The receiving State shall exempt members of the consular post and members of their
families forming part of their households from all personal services, from all public
service of any kind whatsoever, and from military obligations such as those connected
with requisitioning, military contributions and billeting.
Article 53 BEGINNING AND END OF CONSULAR PRIVILEGES AND IMMUNITIES
Every member of the consular post shall enjoy the privileges and immunities provided in
the present Convention from the moment he enters the territory of the receiving State on
proceeding to take up his post or, if already in its territory, from the moment when he
enters on his duties with the consular post.
Members of the family of a member of the consular post forming part of his household
and members of his private staff shall receive the privileges and immunities provided in
the present Convention from the date from which he enjoys privileges and immunities in
accordance with paragraph 1 of this Article or from the date of their entry into the territory
of the receiving State or from the date of their becoming a member of such family or
private staff, whichever is the latest.
When the functions of a member of the consular post have come to an end, his
privileges and immunities and those of a member of his family forming part of his
household or a member of his private staff shall normally cease at the moment when the
person concerned leaves the receiving State or on the expiry of a reasonable period in
which to do so, whichever is the sooner, but shall subsist until that time, even in case of
armed conflict. In the case of the persons referred to in paragraph 2 of this Article, their
privileges and immunities shall come to an end when they cease to belong to the
household or to be in the service of a member of the consular post provided, however,
that if such persons intend leaving the receiving State within a reasonable period
thereafter, their privileges and immunities shall subsist until the time of their departure.
However, with respect to acts performed by a consular officer or a consular employee in
the exercise of his functions, immunity from jurisdiction shall continue to subsist without
limitation of time.
In the event of the death of a member of the consular post, the members of his family
forming part of his household shall continue to enjoy the privileges and immunities
accorded to them until they leave the receiving State or until the expiry of a reasonable
period enabling them to do so, whichever is the sooner.
Article 54 OBLIGATIONS OF THIRD STATES
If a consular officer passes through or is in the territory of a third State, which has
granted him a visa if a visa was necessary, while proceeding to take up or return to his
post or when returning to the sending State, the third State shall accord to him all
immunities provided for by the other Articles of the present Convention as may be
7
required to ensure his transit or return. The same shall apply in the case of any member
of his family forming part of his household enjoying such privileges and immunities who
are accompanying the consular officer or travelling separately to join him or to return to
the sending State.
In circumstances similar to those specified in paragraph 1 of this Article, third States shall
not hinder the transit through their territory of other members of the consular post or of
members of their families forming part of their households.
Third States shall accord to official correspondence and to other official communications
in transit, including messages in code or cipher, the same freedom and protection as the
receiving State is bound to accord under the present Convention. They shall accord to
consular couriers who have been granted a visa, if a visa was necessary, and to consular
bags in transit, the same inviolability and protection as the receiving State is bound to
accord under the present Convention.
The obligations of third States under paragraphs 1, 2 and 3 of this Article shall also apply
to the persons mentioned respectively in those paragraphs, and to official
communications and to consular bags, whose presence in the territory of the third State
is due to force majeure.
Article 55 RESPECT FOR THE LAWS AND REGULATIONS OF THE RECEIVING
STATE
Without prejudice to their privileges and immunities, it is the duty of all persons enjoying
such privileges and immunities to respect the laws and regulations of the receiving State.
They also have a duty not to interfere in the internal affairs of that State.
The consular premises shall not be used in any manner incompatible with the exercise of
consular functions.
The provisions of paragraph 2 of this Article shall not exclude the possibility of offices of
other institutions or agencies being installed in part of the building in which the consular
premises are situated, provided that the premises assigned to them are separate from
those used by the consular post. In that event, the said offices shall not, for the purposes
of the present Convention, be considered to form part of the consular premises.
Article 56 INSURANCE AGAINST THIRD PARTY RISKS
Members of the consular post shall comply with any requirement imposed by the laws
and regulations of the receiving State in respect of insurance against third party risks
arising from the use of any vehicle, vessel or aircraft.
Article 57 SPECIAL PROVISIONS CONCERNING PRIVATE GAINFUL OCCUPATION
Career consular officers shall not carry on for personal profit any professional or
commercial activity in the receiving State.
Privileges and immunities provided in this Chapter shall not be accorded:
to consular employees or to members of the service staff who carry on any private
gainful occupation in the receiving State;
to members of the family of a person referred to in sub-paragraph (a) of this paragraph
or to members of his private staff;
to members of the family of a member of a consular post who themselves carry on any
private gainful occupation in the receiving State.
CHAPTER III REGIME RELATING TO HONORARY CONSULAR OFFICERS AND
CONSULAR POSTS HEADED BY SUCH OFFICERS
Article 58 GENERAL PROVISIONS RELATING TO FACILITIES, PRIVILEGES AND
IMMUNITIES
Articles 28, 29, 30, 34, 35, 36, 37, 38 and 39, paragraph 3 of Article 54 and paragraphs 2
and 3 of Article 55 shall apply to consular posts headed by an honorary consular officer.
In addition, the facilities, privileges and immunities of such consular posts shall be
governed by Articles 59, 60, 61 and 62.
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Articles 42 and 43, paragraph 3 of Article 44, Articles 45 and 53 and paragraph 1 of
Article 55 shall apply to honorary consular officers. In addition, the facilities, privileges
and immunities of such consular officers shall be governed by Articles 63, 64, 65, 66 and
67.
Privileges and immunities provided in the present Convention shall not be accorded to
members of the family of an honorary consular officer or of a consular employee
employed at a consular post headed by an honorary consular officer.
The exchange of consular bags between two consular posts headed by honorary
consular officers in different States shall not be allowed without the consent of the two
receiving States concerned.
Article 59 PROTECTION OF THE CONSULAR PREMISES
The receiving State shall take such steps as may be necessary to protect the consular
premises of a consular post headed by an honorary consular officer against any intrusion
or damage and to prevent any disturbance of the peace of the consular post or
impairment of its dignity.
Article 60 EXEMPTION FROM TAXATION OF CONSULAR PREMISES
Consular premises of a consular post headed by an honorary consular officer of which
the sending State is the owner or lessee shall be exempt from all national, regional or
municipal dues and taxes whatsoever, other than such as represent payment for specific
services rendered.
The exemption from taxation referred to in paragraph 1 of this Article shall not apply to
such dues and taxes if, under the laws and regulations of the receiving State, they are
payable by the person who contracted with the sending State.
Article 61 INVIOLABILITY OF CONSULAR ARCHIVES AND DOCUMENTS
The consular archives and documents of a consular post headed by an honorary
consular officer shall be inviolable at all times and wherever they may be, provided that
they are kept separate from other papers and documents and, in particular, from the
private correspondence of the head of a consular post and of any person working with
him, and from the materials, books or documents relating to their profession or trade.
Article 62 EXEMPTION FROM CUSTOMS DUTIES
The receiving State shall, in accordance with such laws and regulations as it may adopt,
permit entry of, and grant exemption from all customs duties, taxes, and related charges
other than charges for storage, cartage and similar services on the following articles,
provided that they are for the official use of a consular post headed by an honorary
consular officer: coats-of-arms, flags, signboards, seals and stamps, books, official
printed matter, office furniture, office equipment and similar articles supplied by or at the
instance of the sending State to the consular post.
Article 63 CRIMINAL PROCEEDINGS
If criminal proceedings are instituted against an honorary consular officer, he must
appear before the competent authorities. Nevertheless, the proceedings shall be
conducted with the respect due to him by reason of his official position and, except when
he is under arrest or detention, in a manner which will hamper the exercise of consular
functions as little as possible. When it has become necessary to detain an honorary
consular officer, the proceedings against him shall be instituted with the minimum of
delay.
Article 64 PROTECTION OF HONORARY CONSULAR OFFICERS
The receiving State is under a duty to accord to an honorary consular officer such
protection as may be required by reason of his official position.
Article 65 EXEMPTION FROM REGISTRATION OF ALIENS AND RESIDENCE
PERMITS
Honorary consular officers, with the exception of those who carry on for personal profit
any professional or commercial activity in the receiving State, shall be exempt from all
8
obligations under the laws and regulations of the receiving State in regard to the
registration of aliens and residence permits.
Article 66 EXEMPTION FROM TAXATION
An honorary consular officer shall be exempt from all dues and taxes on the
remuneration and emoluments which he receives from the sending State in respect of
the exercise of consular functions.
Article 67 EXEMPTION FROM PERSONAL SERVICES AND CONTRIBUTIONS
The receiving State shall exempt honorary consular officers from all personal services
and from all public services of any kind whatsoever and from military obligations such as
those connected with requisitioning, military contributions and billeting.
Article 68 OPTIONAL CHARACTER OF THE INSTITUTION OF HONORARY
CONSULAR OFFICERS
Each State is free to decide whether it will appoint or receive honorary consular officers.
CHAPTER IV GENERAL PROVISIONS
Article 69 CONSULAR AGENTS WHO ARE NOT HEADS OF CONSULAR POSTS
Each State is free to decide whether it will establish or admit consular agencies
conducted by consular agents not designated as heads of consular post by the sending
State.
The conditions under which the consular agencies referred to in paragraph 1 of this
Article may carry on their activities and the privileges and immunities which may be
enjoyed by the consular agents in charge of them shall be determined by agreement
between the sending State and the receiving State.
Article 70 EXERCISE OF CONSULAR FUNCTIONS BY DIPLOMATIC MISSIONS
The provisions of the present Convention apply also, so far as the context permits, to the
exercise of consular functions by a diplomatic mission.
The names of members of a diplomatic mission assigned to the consular section or
otherwise charged with the exercise of the consular functions of the mission shall be
notified to the Ministry for Foreign Affairs of the receiving State or to the authority
designated by that Ministry.
In the exercise of consular functions a diplomatic mission may address:
the local authorities of the consular district;
the central authorities of the receiving State if this is allowed by the laws, regulations and
usages of the receiving State or by relevant international agreements.
The privileges and immunities of the members of a diplomatic mission referred to in
paragraph 2 of this Article shall continue to be governed by the rules of international law
concerning diplomatic relations.
Article 71 NATIONALS OR PERMANENT RESIDENTS OF THE RECEIVING STATE
Except in so far as additional facilities, privileges and immunities may be granted by the
receiving State, consular officers who are nationals of or permanently resident in the
receiving State shall enjoy only immunity from jurisdiction and personal inviolability in
respect of official acts performed in the exercise of their functions, and the privilege
provided in paragraph 3 of Article 44. So far as these consular officers are concerned,
the receiving State shall likewise be bound by the obligation laid down in Article 42. If
criminal proceedings are instituted against such a consular officer, the proceedings shall,
except when he is under arrest or detention, be conducted in a manner which will
hamper the exercise of consular functions as little as possible.
Other members of the consular post who are nationals of or permanently resident in the
receiving State and members of their families, as well as members of the families of
consular officers referred to in paragraph 1 of this Article, shall enjoy facilities, privileges
and immunities only in so far as these are granted to them by the receiving State. Those
members of the families of members of the consular post and those members of the
private staff who are themselves nationals of or permanently resident in the receiving
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State shall likewise enjoy facilities, privileges and immunities only in so far as these are
granted to them by the receiving State. The receiving State shall, however, exercise its
jurisdiction over those persons in such a way as not to hinder unduly the performance of
the functions of the consular post.
Article 72 NON-DISCRIMINATION
In the application of the provisions of the present Convention the receiving State shall
not discriminate as between States.
However, discrimination shall not be regarded as taking place:
where the receiving State applies any of the provisions of the present Convention
restrictively because of a restrictive application of that provision to its consular posts in
the sending State;
where by custom or agreement States extend to each other more favourable treatment
than is required by the provisions of the present Convention.
Article 73 RELATIONSHIP BETWEEN THE PRESENT CONVENTION AND OTHER
INTERNATIONAL AGREEMENTS
The provisions of the present Convention shall not affect other international agreements
in force as between States parties to them.
Nothing in the present Convention shall preclude States from concluding international
agreements confirming or supplementing or extending or amplifying the provisions
thereof.
CHAPTER V FINAL PROVISIONS
Article 74 SIGNATURE
The present Convention shall be open for signature by all States Members of the United
Nations or of any of the specialized agencies or Parties to the Statute of the International
Court of Justice, and by any other State invited by the General Assembly of the United
Nations to become a Party to the Convention, as follows until 31 October 1963 at the
Federal Ministry for Foreign Affairs of the Republic of Austria and subsequently, until 31
March 1964, at the United Nations Headquarters in New York.
Article 75 RATIFICATION
The present Convention is subject to ratification. The instruments of ratification shall be
deposited with the Secretary-General of the United Nations.
Article 76 ACCESSION
The present Convention shall remain open for accession by any State belonging to any
of the four categories mentioned in Article 74. The instruments of accession shall be
deposited with the Secretary-General of the United Nations.
Article 77 ENTRY INTO FORCE
The present Convention shall enter into force on the thirtieth day following the date of
deposit of the twenty-second instrument of ratification or accession with the Secretary-
General of the United Nations.
For each State ratifying or acceding to the Convention after the deposit of the twenty-
second instrument of ratification or accession, the Convention shall enter into force on
the thirtieth day after deposit by such State of its instrument of ratification or accession.
Article 78 NOTIFICATIONS BY THE SECRETARY-GENERAL
The Secretary-General of the United Nations shall inform all States belonging to any of
the four categories mentioned in Article 74:
(a) of signatures to the present Convention and of the deposit of instruments of
ratification or accession, in accordance with Articles 74, 75 and 76;
(b) of the date on which the present Convention will enter into force, in accordance with
Article 77.
Article 79 AUTHENTIC TEXTS
The original of the present Convention, of which the Chinese, English, French, Russian
and Spanish texts are equally authentic, shall be deposited with the Secretary-General of
9
the United Nations, who shall send certified copies thereof to all States belonging to any
of the four categories mentioned in Article 74.
IN WITNESS WHEREOF the undersigned Plenipotentiaries, being duly authorized
thereto by their respective Governments, have signed the present Convention.
DONE at Vienna, this twenty-fourth day of April, one thousand nine hundred and sixty-
three.
OPTIONAL PROTOCOL TO THE VIENNA CONVENTION ON CONSULAR
RELATIONS
CONCERNING ACQUISITION OF NATIONALITY.
DONE AT VIENNA, ON 24 APRIL 1963
The States Parties to the present Protocol and to the Vienna Convention on Consular
Relations, hereinafter referred to as "the Convention", adopted by the United Nations
Conference held at Vienna from 4 March to 22 April 1963, Expressing their wish to
establish rules between them concerning acquisition of nationality by members of the
consular post and by members of their families forming part of their households, Have
agreed as follows:
Article I
For the purposes of the present Protocol, the expression "members of the consular post"
shall have the meaning assigned to it in sub-paragraph (g) of paragraph 1 of Article 1 of
the Convention, namely, "consular officers, consular employees and members of the
service staff".
Article II
Members of the consular post not being nationals of the receiving State, and members of
their families forming part of their households, shall not, solely by the operation of the law
of the receiving State, acquire the nationality of that State.
Article III
The present Protocol shall be open for signature by all States which may become Parties
to the Convention, as follows: until 31 October 1963 at the Federal Ministry for Foreign
Affairs of the Republic of Austria and, subsequently, until 31 March 1964, at the United
Nations Headquarters in New York.
Article IV
The present Protocol is subject to ratification. The instruments of ratification shall be
deposited with the Secretary-General of the United Nations.
Article V
The present Protocol shall remain open for accession by all States which may become
Parties to the Convention. The instruments of accession shall be deposited with the
Secretary-General of the United Nations.
Article VI
The present Protocol shall enter into force on the same day as the Convention or on the
thirtieth day following the date of deposit of the second instrument of ratification of or
accession to the Protocol with the Secretary-General of the United Nations, whichever
date is the later.
For each State ratifying or acceding to the present Protocol after its entry into force in
accordance with paragraph 1 of this Article, the Protocol shall enter into force on the
thirtieth day after deposit by such State of its instrument of ratification or accession.
Article VII
The Secretary-General of the United Nations shall inform all States which may become
Parties to the Convention:
(a) of signatures to the present Protocol and of the deposit of instruments of ratification
or accession, in accordance with Articles III, IV and V;
(b) of the date on which the present Protocol will enter into force, in accordance with
Article VI.
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Article VIII
The original of the present Protocol, of which the Chinese, English, French, Russian and
Spanish texts are equally authentic, shall be deposited with the Secretary-General of the
United Nations, who shall send certified copies thereof to all States referred to in Article
III.
IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorized
thereto by their respective Governments, have signed the present Protocol.
DONE at Vienna, this twenty-fourth day of April, one thousand nine hundred and sixty-
three.
OPTIONAL PROTOCOL TO THE VIENNA CONVENTION ON CONSULAR
RELATIONS CONCERNING THE COMPULSORY SETTLEMENT OF DISPUTES.
DONE AT VIENNA, ON 24 APRIL 1963
The States Parties to the present Protocol and to the Vienna Convention on Consular
Relations, hereinafter referred to as "the Convention", adopted by the United Nations
Conference held at Vienna from 4 March to 22 April 1963, Expressing their wish to resort
in all matters concerning them in respect of any dispute arising out of the interpretation
or application of the Convention to the compulsory jurisdiction of the International Court
of Justice, unless some other form of settlement has been agreed upon by the parties
within a reasonable period, Have agreed as follows:
Article I
Disputes arising out of the interpretation or application of the Convention shall lie within
the compulsory jurisdiction of the International Court of Justice and may accordingly be
brought before the Court by an application made by any party to the dispute being a
Party to the present Protocol.
Article II
The parties may agree, within a period of two months after one party has notified its
opinion to the other that a dispute exists, to resort not to the International Court of Justice
but to an arbitral tribunal. After the expiry of the said period, either party may bring the
dispute before the Court by an application.
Article III
Within the same period of two months, the parties may agree to adopt a conciliation
procedure before resorting to the International Court of Justice.
The conciliation commission shall make its recommendations within five months after its
appointment. If its recommendations are not accepted by the parties to the dispute within
two months after they have been delivered, either party may bring the dispute before the
Court by an application.
Article IV
States Parties to the Convention, to the Optional Protocol concerning Acquisition of
Nationality, and to the present Protocol may at any time declare that they will extend the
provisions of the present Protocol to disputes arising out of the interpretation or
application of the Optional Protocol concerning Acquisition of Nationality. Such
declarations shall be notified to the Secretary-General of the United Nations.
Article V
The present Protocol shall be open for signature by all States which may become Parties
to the Convention as follows: until 31 October 1963 at the Federal Ministry for Foreign
Affairs of the Republic of Austria and, subsequently, until 31 March 1964, at the United
Nations Headquarters in New York.
Article VI
The present Protocol is subject to ratification. The instruments of ratification shall be
deposited with the Secretary-General of the United Nations.
Article VII
10
The present Protocol shall remain open for accession by all States which may become
Parties to the Convention. The instruments of accession shall be deposited with the
Secretary-General of the United Nations.
Article VIII
The present Protocol shall enter into force on the same day as the Convention or on the
thirtieth day following the date of deposit of the second instrument of ratification or
accession to the Protocol with the Secretary-General of the United Nations, whichever
date is the later.
For each State ratifying or acceding to the present Protocol after its entry into force in
accordance with paragraph 1 of this Article, the Protocol shall enter into force on the
thirtieth day after deposit by such State of its instrument of ratification or accession.
Article IX
The Secretary-General of the United Nations shall inform all States which may become
Parties to the Convention:
(a) of signatures to the present Protocol and of the deposit of instruments of ratification
or accession, in accordance with Articles V, VI and VII;
(b) of declarations made in accordance with Article IV of the present Protocol;
(c) of the date on which the present Protocol will enter into force, in accordance with
Article VIII.
Article X
The original of the present Protocol, of which the Chinese, English, French, Russian and
Spanish texts are equally authentic, shall be deposited with the Secretary-General of the
United Nations, who shall send certified copies thereof to all States referred to in Article
V.
IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorised
thereto by their respective Governments, have signed the present Protocol.
DONE at Vienna, this twenty-fourth day of April, one thousand nine hundred and sixty-
three.
BOSNIA CASE 26 FEBRUARY 2007
Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)
ACTION OF BOSNIA AGAINST YUGOSLAVIA. On 20 March 1993, Bosnia and
Herzegovina filed in the Registry of the Court an Application instituting proceedings
against the Federal Republic of Yugoslavia (FRY) (now, Serbia and Montenegro) in
respect of a dispute concerning alleged violations of the Convention on the Prevention
and Punishment of the Crime of Genocide, adopted by the GA of the UN on 9 December
1948 (hereinafter “the Genocide Convention”), as well as various matters which Bosnia
and Herzegovina claimed were connected therewith. The Application invoked Article IX of
the Genocide Convention as the basis of the jurisdiction of the Court.
REQUEST FOR PROVISIONAL MEASURES. Immediately after the filing of its
Application, Bosnia and Herzegovina submitted a request for the indication of provisional
measures pursuant to Article 73 of the Rules of Court. Bosnia and Herzegovina invoked
as an additional basis of jurisdiction, the text of a letter dated 8 June 1992, addressed
jointly by the President of the then Republic of Montenegro and the President of the then
Republic of Serbia to the President of the Arbitration Commission of the International
Conference for Peace in Yugoslavia. The FRY submitted written observations on Bosnia
and Herzegovina’s request for provisional measures, in which it, in turn, recommended
that the Court indicate provisional measures to be applied to Bosnia and Herzegovina.
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By an Order dated 8 April 1993, the Court, after hearing the Parties, indicated certain
provisional measures with a view to the protection of rights under the Genocide
Convention.
BOSNIA’S REQUEST
"1. That Yugoslavia together with its
agents and surrogates in Bosnia and
elsewhere, must immediately cease and
desist from all acts of genocide and
genocidal acts against the people and
State of Bosnia and Herzegovina,
including but not limited to murder;
summary executions; torture; rape;
mayhem; so-called "ethnic cleansing"; the
wanton devastation of villages, towns,
districts and cities; the siege of villages,
towns, districts and cities; the starvation of
the civilian population; the interruption of,
interference with, or harassment of
humanitarian relief supplies to the civilian
population by the international community;
the bombardment of civilian population
centres; and the detention of civilians in
concentration camps or otherwise.
2. That Yugoslavia must immediately
cease and desist from providing, directly
or indirectly, any type of support -
including training, weapons, arms,
ammunition, supplies, assistance,
finances, direction or any other form of
support - to any nation, group,
organization, movement, militia or
individual engaged in or planning to
engage in military or paramilitary activities
in or against the people, State and
Government of Bosnia and Herzegovina.
3. That Yugoslavia itself must immediately
cease and desist from any and all types of
military or paramilitary activities by its own
officials, agents, surrogates, or forces in or
against the people, State and Government
of Bosnia and Herzegovina, and from any
other use or threat of force in its relations
with Bosnia and Herzegovina.
4. That under the current circumstances,
the Government of Bosnia and
Herzegovina has the right to seek and
receive support from other States in order
to defend itself and its people, including by
means of immediately obtaining military
weapons, equipment and supplies.
5. That under the current circumstances,
FRY’S REQUEST
1. To instruct the authorities controlled by
A. Izetbegovic (president of Bosnia) to
comply strictly with the latest agreement
on a cease-fire in the 'Republic of Bosnia
and Herzegovina' which went into force on
28 March 1993;
2. To direct the authorities under the
control of A. Izetbegovic to respect the
Geneva Conventions for the Protection of
Victims of War of 1949 and the 1977
Additional Protocols thereof, since the
genocide of Serbs living in the 'Republic of
Bosnia and Herzegovina' is being carried
out by the commission of very serious war
crimes which are in violation of the
obligation not to infringe upon the
essential human rights;
3. To instruct the authorities loyal to
A. Izetbegovic to close immediately and
disband all prisons and detention camps in
the 'Republic of Bosnia and Herzegovina'
in which the Serbs are being detained
because of their ethnic origin and
subjected to acts of torture, thus
presenting a real danger for their life and
health;
4. To direct the authorities controlled by
A. Izetbegovic to allow, without delay, the
Serb residents to leave safely Tuzla,
Zenica, Sarajevo and other places in the
'Republic of Bosnia and Herzegovina',
where they have been subject to
harassment and physical and mental
abuse, and having in mind that they may
suffer the same fate as the Serbs in
eastern Bosnia, which was the site of the
killing and massacres of a few thousand
Serb civilians;
5. To instruct the authorities loyal to
A. Izetbegovic to cease immediately any
further destruction of Orthodox churches
and places of worship and of other Serb
cultural heritage, and to release and stop
further mistreatment of all Orthodox priests
being in prison;
5. To direct the authorities under the
control of A. Izetbegovic to put an end to
11
the Government of Bosnia and all acts of discrimination based on
Herzegovina has the right to request the nationality or religion and the practice of
immediate assistance of any State to 'ethnic cleansing', including the
come to its defence, including by means of discrimination relating to the delivery of
immediately providing weapons, military humanitarian aid, against the Serb
equipment and supplies, and armed forces population in the 'Republic of Bosnia and
(soldiers, sailors, airpeople, etc.). Herzegovina.'"
6. That under the current circumstances,
any State has the right to come to the
immediate defence of Bosnia and
Herzegovina - at its request - including by
means of immediately providing weapons,
military equipment and supplies, and
armed forces (soldiers, sailors, and
airpeople, etc.)".
ADDITIONAL BASES OF JURISDICTION & MORE PROVISIONAL MEASURES.
Eventually, Bosnia and Herzegovina submitted a new request for the indication of
provisional measures. The Agent of Bosnia and Herzegovina indicated that they wish to
invoke additional bases of jurisdiction in the case: the Treaty between the Allied and
Associated Powers and the Kingdom of the Serbs, Croats and Slovenes on the
Protection of Minorities, signed at Saint-Germain-en-Laye on 10 September 1919, and
customary and conventional international laws of war and international humanitarian law.
The FRY also submitted a request for the indication of provisional measures and it filed
written observations on Bosnia and Herzegovina’s new request. By an Order dated 13
September 1993, the Court, after hearing the Parties, reaffirmed the measures indicated
in its Order of 8 April 1993 and stated that those measures should be immediately and
effectively implemented.
PRELIMINARY OBJECTIONS OF FRY. The FRY, referring to raised preliminary
objections concerning the Court’s jurisdiction to entertain the case and to the
admissibility of the Application. By a letter dated, the Agent of the FRY submitted to the
Court the text of the General Framework Agreement for Peace in Bosnia and
Herzegovina and the annexes thereto, initialled in Dayton, Ohio, on 21 November 1995,
and signed in Paris on 14 December 1995 (hereinafter the “Dayton Agreement”). By a
Judgment of 11 July 1996, the Court dismissed the preliminary objections and found that
it had jurisdiction to adjudicate on the dispute on the basis of Article IX of the Genocide
Convention and that the Application was admissible.
FRY’S APPLICATION FOR REVISION OF JUDGMENT. On 24 April 2001, the FRY filed
in the Registry of the Court an Application whereby it requested the Court to revise the
Judgment delivered on Preliminary Objections on 11 July 1996. The FRY requested the
Court to adjudge and declare that it had no jurisdiction ratione personae over the FRY,
contending that it had not been a party to the Statute of the Court until its admission to
the UN on 1 November 2000, that it had not been and still was not a party to the
Genocide Convention; it added moreover that its notification of accession to that
Convention dated 8 March 2001 contained a reservation to Article IX thereof. On the
other hand, Bosnia and Herzegovina submitted that “there [was] no basis in fact nor in
law to honour FRY’s contentions and requested the Court to “respond in the negative to
the request. In its Judgment of 3 February 2003 in the Application for Revision case, the
Court found that the FRY’s Application for revision, under Article 61 of the Statute of the
Court, of the Judgment of 11 July 1996 on preliminary objections was inadmissible.
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SUBMISSIONS.
BOSNIA
For the ICJ to adjudge and declare,
1. That the FRY directly,
or through the use of its surrogates, has
violated and is violating the Convention on
the Prevention and Punishment of the
Crime of Genocide, by destroying in part,
and attempting to destroy in whole,
national, ethnical or religious groups within
the, but not limited to the, territory of the
Republic of Bosnia and Herzegovina,
including in particular the Muslim
population, by
- killing members of the group;
- causing deliberate bodily or mental harm
to members of the group; deliberately
inflicting on the group conditions of life
calculated to bring about its physical
destruction in whole or in part;
- imposing measures intended to prevent
births within the group;
2. That the FRY has
violated and is violating the Convention on
the Prevention and Punishment of the
Crime of Genocide by conspiring to
commit genocide, by complicity in
genocide, by attempting to commit
genocide and by incitement to commit
genocide;
3. That the FRY has
violated and is violating the Convention on
the Prevention and Punishment of the
Crime of Genocide by aiding and abetting
individuals and groups engaged in acts of
genocide;
4. That the FRY has
violated and is violating the Convention on
the Prevention and Punishment of the
Crime of Genocide by virtue of having
failed to prevent and to punish acts of
genocide;
5. That the FRY must
immediately cease the above conduct and
take immediate and effective steps to
ensure
full compliance with its obligations under
the Convention on the Prevention and
Punishment of the Crime of Genocide;
6. That the FRY must wipe
out the consequences of its international
FRY
For the ICJ to adjudge and declare:
1. In view of the fact that no obligations
established by the 1948 Convention on
the Prevention and Punishment of the
Crime of Genocide have been violated
with regard to Muslims and Croats,
- since the acts alleged by the Applicant
have not been committed at all, or not to
the extent and in the way alleged by the
Applicant, or
- if some have been committed, there was
absolutely no intention of committing
genocide, and/or
- they have not been directed specifically
against the members of one ethnic or
religious group, i.e. they have not been
committed against individuals just because
they belong to some ethnic or religious
group, consequently, they cannot be
qualified as acts of genocide or other acts
prohibited by the 1948 Convention on the
Prevention and Punishment of the Crime
of Genocide;
and/or
2. In view of the fact that the acts alleged
by the Applicant in its submissions cannot
be attributed to the FRY,
-since they have not been committed by
the organs of the FRY,
- since they have not been committed on
the territory of the Federal Republic of
Yugoslavia,
- since they have not been committed by
the order or under control of the organs of
the FRY,
- since there is no other grounds based on
the rules of international law to consider
them as acts of the FRY, therefore the
Court rejects all claims of the Applicant;
and
3. Bosnia and Herzegovina is responsible
for the acts of genocide committed
against the Serbs in Bosnia and
Herzegovina and for other violations of the
obligations established by the 1948
Convention on the Prevention and
Punishment of the Crime of Genocide,
- because it has incited acts of genocide
by the ‘Islamic Declaration’, and in
wrongful acts and must restore the
situation existing before the violations of
the Convention on the Prevention and
Punishment of the Crime of Genocide
were committed;
7. That, as a result of the international
responsibility incurred for the above
violations of the Convention on the
Prevention and Punishment of the Crime
of
Genocide, the FRY is required to pay, and
the Republic of Bosnia and Herzegovina is
entitled to receive, in its own right and as
parens patriae for its citizens, full
compensation for the damages and losses
caused, in the amount to be determined
by the Court in a subsequent phase of the
proceedings in this case. The Republic of
Bosnia and Herzegovina reserves its right
to supplement or amend its submissions in
the light of further pleadings.
The Republic of Bosnia and Herzegovina
also respectfully draws the attention of the
Court to the fact that it has not reiterated,
at this point, several of the requests it
made in its Application, on the formal
assumption that the FRY has accepted the
jurisdiction of this Court under
the terms of the Convention on the
Prevention and Punishment of the Crime
of
Genocide. If the Respondent were to
reconsider its acceptance of the
jurisdiction of the Court under the terms of
that Convention, which it is, in any event,
not entitled
to do, the Government of Bosnia and
Herzegovina reserves its right to invoke
also all or some of the other existing titles
of jurisdiction and to revive all or some of
its previous submissions and requests.”
As to FRY’s SUBMISSIONS: FRY’s
submissions and conclusions need to be
rejected. With regard to the their counter-
claims: there is no basis in fact and no
basis in law for the proposition
that genocidal acts have been committed
against Serbs in Bosnia and Herzegovina.
There is no basis in fact and no basis in
law for the proposition that any such acts,
if proven, would have been committed
12
particular by the position contained in it
that ‘there can be no peace or coexistence
between “Islamic faith” and “non-Islamic”
social and political institutions’,
- because it has incited acts of genocide
by the Novi Vox, paper of the Muslim
youth, and in particular by the verses of a
‘Patriotic Song’ which read as follows:
‘Dear mother, I’m going to plant willows,
We’ll hang Serbs from them. Dear mother,
I’m going to sharpen knives, We’ll soon fill
pits again’;
- because it has incited acts of genocide
by the paper Zmaj od Bosne, and in
particular by the sentence in an article
published in it that ‘Each Muslim must
name a Serb and take oath to kill him’;
- because public calls for the execution of
Serbs were broadcast on radio ‘Hajat’
and thereby acts of genocide were incited;
- because the armed forces of Bosnia and
Herzegovina, as well as other organs of
Bosnia and Herzegovina have committed
acts of genocide and other acts
prohibited by the 1948 Convention on the
Prevention and Punishment of the Crime
of Genocide, against the Serbs in Bosnia
and Herzegovina, which have been stated
in Chapter Seven of the Counter-
Memorial;
- because Bosnia and Herzegovina has
not prevented the acts of genocide and
other acts prohibited by the 1948
Convention on the Prevention and
Punishment of the Crime of Genocide,
against the Serbs on its territory.
4. Bosnia and Herzegovina has the
obligation to punish the persons held
responsible for the acts of genocide and
other acts prohibited by the 1948
Convention on the Prevention and
Punishment of the Crime of Genocide;
5. Bosnia and Herzegovina is bound to
take necessary measures so that the said
acts would not be repeated in the future;
6. Bosnia and Herzegovina is bound to
eliminate all consequences of the
violation of the obligations established by
the 1948 Convention on the Prevention
and Punishment of the Crime of Genocide
and provide adequate compensation.”
that this Court has no jurisdiction because
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under the responsibility of Bosnia and the Respondent had no access to the INDEPENDENT STATE, CANNOT NOT THE RESPONDENT SINCE IT IS
Herzegovina or that such acts, if proven, Court at the relevant moment; or, in the ESCAPE FROM BEING A NOT US WHO SUCCEEDED FROM THE
would be attributable to Bosnia and alternative; RESPONDENT TO THE CASE. Bosnia UNION STATE. Republic of Montenegro
Herzegovina. Also, there is no basis in fact - that this Court has no jurisdiction over and Herzegovina believes that even if had become “an independent state with
and no basis in law for the proposition that the Respondent because the Respondent Serbia has represented itself as the full international legal personality within its
Bosnia and Herzegovina has violated any never remained or became bound by continuator of the former Serbia and existing administrative borders”, and the
of its obligations under the Convention on Article IX of the Convention on the Montenegro which has been accepted issue of international-law succession of
the Prevention and Punishment of the Prevention and Punishment of the Crime both by Montenegro and the international the State union of Serbia and Montenegro
Crime of Genocide. On the contrary, of Genocide, and because there is no community, this acceptance cannot have, is regulated in Article 60 of the
Bosnia other ground on which jurisdiction over the and does not have, any effect on the Constitutional Charter, and according to
and Herzegovina has continuously done Respondent could be based. applicable rules of state responsibility. At that Article the legal successor of the
everything within its possibilities to adhere In case the Court determines that the time when genocide was committed State union of Serbia and Montenegro is
to its obligations under the Convention, jurisdiction exists Serbia and Montenegro and at the time of the initiation of this the Republic of Serbia, which, as a
and will continue to do so; The ICJ should asks case, Serbia and Montenegro constituted sovereign state, [has] become [the]
reject the counter-claims submitted by the the Court to adjudge and declare: a single state. Therefore, Bosnia and follower of all
FRY. - That the requests in paragraphs 1 to 6 of Herzegovina is of the opinion that both international obligations and successor in
the Submissions of Bosnia and Serbia and Montenegro, jointly and international organizations.” In the dispute
Herzegovina relating to alleged violations severally, are responsible for the unlawful before the Court, “the Republic of
of the obligations under the Convention conduct that constitute the cause of Montenegro may not have the capacity of
on the Prevention and Punishment of the action in this case. respondent. Furthermore, it cannot be
Crime of Genocide be rejected as lacking made a respondent without its consent.
a basis either in law or in fact.
- In any event, that the acts and/or ICJ: REPUBLIC OF SERBIA IS THE RESPONDENT. Serbia has accepted “continuity
omissions for which the respondent State between Serbia and Montenegro and the Republic of Serbia and has assumed
is responsibility for “its commitments deriving from international treaties concluded by
alleged to be responsible are not Serbia and Montenegro” thus including commitments under the Genocide Convention.
attributable to the respondent State. Such Montenegro,
attribution would necessarily involve on the other hand, does not claim to be the continuator of Serbia and Montenegro. It is
breaches of the law applicable in these a fundamental principle that no State may be subject to its jurisdiction without its
proceedings. consent, the Court’s “jurisdiction depends on the consent of States and, consequently,
the Court may not compel a State to appear before it .Court found that such consent
IDENTIFICATION OF THE RESPONDENT PARTY existed, for
the purposes of the present case, on the part of the FRY, which subsequently assumed
AS SUCCESSOR OF THE UNION STATE, REPUBLIC OF SERBIA ASSUMED ALL the name of Serbia and Montenegro, without however any change in its legal
OBLIGATIONS OF THE UNION STATE SERBIA & MONTENEGRO. In 3 June 2006, personality. The Republic of Montenegro does not continue the legal personality of
Montenegro declared its independence and became a separate state from Serbia. Thus, Serbia and Montenegro; it cannot therefore have acquired, on that basis, the status of
the President of the Republic of Serbia informed the Sec-Gen of the UN that, following Respondent in the present case. It is also clear that it does not give its consent to the
the Declaration of Independence adopted by the National Assembly of Montenegro, “the jurisdiction of the Court over it
membership of the state union Serbia and Montenegro in the UN, including all organs for the purposes of the present dispute. Republic of Serbia remains a respondent in the
and organisations of the UN system, would be continued by the Republic of Serbia on case.
the basis of Article 60 of the Constitutional Charter of Serbia and Montenegro”. He THE COURT’S JURISDICTION
further stated that “in the United Nations the name ‘Republic of Serbia’ was to be
henceforth used instead of the name ‘Serbia and Montenegro’” and added that the - The jurisdictional objection of the Respondent
Republic of Serbia “remained responsible in full for all the rights and obligations of the ISSUE: WON at the time of the filing of the Application instituting
state union of Serbia and Montenegro under the UN Charter”. Montenegro, now an proceedings the Respondent was or was not the continuator of the Socialist
independent state, was subsequently admitted as member of the UN upon the resolution Federal Republic of Yugoslavia (SFRY).
of the General Assembly. With respect to the present case, it is now contended whether
Montenegro by virtue of its declaration of independence is not anymore a respondent. BOSNIA SERBIA & MONTENEGRO
- Court should not examine the question - The Respondent now contends that it
BOSNIA MONTENEGRO raised by the Respondent in its Initiative. was not a continuator State, and that
MONTENEGRO, EVEN IF ALREADY AN AS AN INDEPENDENT STATE, WE ARE Bosnia and Herzegovina firstly argues therefore not only was it not a party to the

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that the Respondent was under a duty to Genocide Convention when the
raise the issue of whether the FRY was a proceedings were instituted, but it was not
Member of the United Nations at the time then a party to the Statute of the Court by
of the proceedings on the preliminary virtue of membership in the United
objections, in 1996, and that since it did Nations; and that, not being such a party,
not do so, the principle of res judicata, it did not have access to the Court, with the
attaching to the Court’s 1996 Judgment on consequence that the Court had no
those objections, prevents it from jurisdiction ratione personae over it.
reopening the issue.
- secondly, it maintains that the Court itself, - Respondent, after claiming that since the
having decided in 1996 that it had break-up of the SFRY in 1992 it was the
jurisdiction in the case, would be in breach continuator of that State, and as such
of the principle of res judicata if it were maintained the membership of the SFRY in
now to decide otherwise, and that the the United Nations, had on
Court cannot call in question the authority 27 October 2000 applied, “in light of the
of its decisions as res judicata. implementation of the Security Council
resolution 777 (1992)” to be admitted to
the Organization as a new Member,
thereby in effect relinquishing its previous
claim.
- A distinction may be drawn between the
application of the principle of res judicata
to judgments given on the merits of a case
and judgments determining the Court’s
jurisdiction, in response to preliminary
objections. The Respondent contends that
the latter “do not and cannot have the
same consequences as decisions on the
merits”.
- The 1996 Judgment is not conclusive on
the matter. For the purposes of applying
the principle of res judicata to a judgment
on preliminary objections, the operative
clause to be taken into account and given
the force of res judicata is the decision
rejecting specified preliminary objections,
rather than the broad ascertainment
upholding jurisdiction.
- The issue of whether the FRY had access
to the Court had not been decided in the
1996 Judgment.
ICJ: - (as to estoppel argument of Bosnia)
- If a party to proceedings before the Court chooses not to raise an issue of jurisdiction
by way of the preliminary objection procedure under Article 79 of the Rules, that party is
not necessarily thereby debarred from raising such issue during the proceedings on the
merits of the case.
- The Court does not find it necessary to consider whether the conduct of the
Respondent could be held to constitute an acquiescence in the jurisdiction of the Court.
14
Such acquiescence, if established, might be relevant to questions of consensual
jurisdiction, but not to the question whether a State has the capacity under the Statute to
be a party to proceedings before the Court. Whether or not the Respondent should be
held to have acquiesced in the jurisdiction of the Court in the case, such acquiescence
would in no way debar the Court from examining and ruling upon the question it raised.
- (as to res judicata argument)
- After having reviewed its relevant past decisions, notably its 1996 Judgment on
Preliminary Objections in the case and the 2003 Judgment in the Application for Revision
case, the Court considers the principle of res judicata, and its application to the 1996
Judgment. The Court recalls that the principle of res judicata appears from the terms of
the Statute of the Court and the Charter of the United Nations. That principle signifies
that the decisions of the Court are not only binding on the parties, but are final, in the
sense that they cannot be reopened by the parties as regards the issues that have been
determined, save by procedures, of an exceptional nature, specially laid down for that
purpose (the procedure for revision set down in Article 61 of the Statute). In the view of
the Court, two purposes underlie the principle of res judicata: first, the stability of legal
relations requires that litigation come to an end; secondly, it is in the interest of each
party that an issue which has already been adjudicated in favour of that party be not
argued again.
- Court dismisses contention of Serbia and holds that decision on questions of
jurisdiction is given by a judgment, and Article 60 of the Statute provides that “[t]he
judgment is final and without appeal”, without distinguishing between judgments on
jurisdiction and admissibility, and judgments on the merits.
- Should a party to a case believe that elements have come to light subsequent to the
decision of the Court which tend to show that the Court’s conclusions may have been
based on incorrect or insufficient facts, the Statute provides for only one procedure: that
under Article 61, which offers the possibility of the revision of judgments, subject to the
restrictions stated in that Article. In this regard, it recalls that the Respondent’s
Application for revision of the 1996 Judgment in the case was dismissed, as not meeting
the conditions of Article 61.
- The Court recalls that the operative part of the 1996 judgment of the Court possesses
the force of res judicata. The 1996 Judgment stated that the Court found “that, on the
basis of Article IX of the Convention on the Prevention and Punishment of the Crime of
Genocide, it has jurisdiction to decide upon the dispute”. Jurisdiction is thus established
with the full weight of the Court’s judicial authority.
- For a party to assert today that, at the date the 1996 Judgment was given, the Court
had no power to give it, because one of the parties can now be seen to have been
unable to come before the Court is to call in question the force as res judicata of the
operative clause of the Judgment.
- As to the contention that res judicata should only operate as to the part of the 1996
judgment regarding the preliminary objections, the Court does not uphold this contention,
explaining that it does not consider that it was the purpose of Article 79 of the Rules of
Court to limit the extent of the force of res judicata attaching to a judgment on preliminary
objections, nor that, in the case of such judgment, such force is necessarily limited to the
clauses of the dispositif specifically rejecting particular objections. If any question arises
as to the scope of res judicata attaching to a judgment, it must be determined in each
case having regard to the context in which the judgment was given. It may be necessary
to distinguish between, first, the issues which have been decided with the force of res
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judicata, or which are necessarily entailed in the decision of those issues; secondly any
peripheral or subsidiary matters, or obiter dicta; and finally matters which have not been
ruled upon at all. The Court notes that the fact that it has dealt, in a number of past
cases, with jurisdictional issues after having delivered a judgment on jurisdiction does not
support the contention that such a judgment can be reopened at any time, so as to
permit reconsideration of issues already settled with the force of res judicata.
- Addressing the argument of the Respondent that the issue whether the FRY had
access to the Court had not been decided in the 1996 Judgment, the Court notes that the
statements it made in the 2004 Judgments in the Legality of Use of Force cases do not
signify that in 1996 the Court was unaware of the fact that the solution adopted in the
United Nations as to the question of continuation of the membership of the SFRY “[was]
not free from legal difficulties”. As the Court recognized in the 2004 Judgments, in 1999 -
and even more so in 1996 - it was by no means so clear as the Court found it to be in
2004 that the Respondent was not a Member of the United Nations. Although the legal
complications of the position of the Respondent in relation to the United Nations were not
specifically mentioned in the 1996 Judgment, the Court affirmed its jurisdiction to
adjudicate upon the dispute and since the question of a State’s capacity to be a party to
proceedings is a matter which the Court must, if necessary, raise ex officio, this finding
must as a matter of construction be understood, by necessary implication, to mean that
the Court at that time perceived the Respondent as being in a position to participate in
cases before the Court. On that basis, it proceeded to make a finding on jurisdiction
which would have the force of res judicata. The Court does not need to go behind that
finding and consider on what basis the Court was able to satisfy itself on the point.
Whether the Parties classify the matter as one of “access to the Court” or of “jurisdiction
ratione personae”, the fact remains that the Court could not have proceeded to
determine the merits unless the Respondent had had the capacity under the Statute to
be a party to proceedings before the Court. That the FRY had the capacity to appear
before the Court in accordance with the Statute was an element in the reasoning of the
1996 Judgment which can - and indeed must - be read into the Judgment as a matter of
logical construction.
- Conclusion: jurisdiction affirmed
The Court concludes that, in respect of the contention that the Respondent was not, on
the date of filing of the Application instituting proceedings, a State having the capacity to
come before the Court under the Statute, the principle of res judicata precludes any
reopening of the decision embodied in the 1996 Judgment. The Respondent has
however also argued that the 1996 Judgment is not res judicata as to the further
question whether the FRY was, at the time of institution of proceedings, a party to the
Genocide Convention, and has sought to show that at that time it was not, and could not
have been, such a party. The Court however considers that the reasons given for
holding that the 1996 Judgment settles the question of jurisdiction in this case with the
force of res judicata are applicable a fortiori as regards this contention, since on this point
the 1996 Judgment was quite specific, as it was not on the question of capacity to come
before the Court. The Court thus concludes that, as stated in the 1996 Judgment, it has
jurisdiction, under Article IX of the Genocide Convention, to adjudicate upon the dispute.
It follows that the Court does not find it necessary to consider the questions, extensively
addressed by the Parties, of the status of the Respondent under the Charter of the
United Nations and the Statute of the Court, and its position in relation to the Genocide
Convention at the time of the filing of the Application.
15
THE APPLICABLE LAW
ARTICLE IX GENOCIDE CONVENTION. The jurisdiction in the case is based solely on
Article IX of the Genocide Convention, since all the other grounds of jurisdiction invoked
by the Applicant were rejected in the 1996 Judgment on jurisdiction. Article IX provides
that “Disputes between the Contracting Parties relating to the interpretation, application
or fulfillment 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”.
JURISDICTION LIMITED TO THE ISSUE OF GENOCIDE. It follows that the Court may
rule only on disputes between the States parties relating to the interpretation, application
or fulfillment of the Convention and that it has no power to rule on alleged breaches of
other obligations under international law, not amounting to genocide, particularly those
protecting human rights in armed conflict. That is so even if the alleged breaches are of
obligations under peremptory norms, or of obligations which protect essential
humanitarian values, and which may be owed erga omnes.
THE GENOCIDE CONVENTION IN BRIEF
Under Article I “[t]he Contracting Parties confirm that genocide, whether committed in
time of peace or in time of war, is a crime under international law which they undertake to
prevent and to punish”.
Article II defines genocide in these terms:
“In the present Convention, genocide means any of the following acts
committed with intent to destroy, in whole or in part, a national, ethnical, racial or
religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.”
Article III provides as follows:
“The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.”
According to Article IV, persons committing any of those acts shall be punished
whether they are constitutionally responsible rulers, public officials or private individuals.
Article V requires the parties to enact the necessary legislation to give effect to the
Convention, and, in particular, to provide effective penalties for persons guilty of
genocide or other acts enumerated in Article III.
Article VI provides that “[p]ersons charged with genocide or any of the other acts
enumerated in article III shall be tried by a competent tribunal of the State in the territory
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of which the act was committed, or by such international penal tribunal as may have genocide committed; . . . a State which genocide committed by individuals within
jurisdiction with respect to those Contracting Parties which shall have accepted its commits genocide has not fulfilled its its territory or . . . its control”.
jurisdiction”. commitment to prevent it”.
The sole remedy in respect of that failure
Article VII provides for extradition. The argument moves on from alleged would, in the Respondent’s view, be a
breaches of Article I to “violations [by the declaratory judgment.
Under Article VIII “Any Contracting Party may call upon the competent organs of the Respondent] of its obligations under Article
United Nations to take such action under the Charter of the United Nations as they III . . . to which express reference is made As a subsidiary argument, the Respondent
consider appropriate for the prevention and suppression of acts of genocide or any of the in Article IX, violations which stand at the also contended that “for a State to be
other acts enumerated in Article III.” heart of our case. This responsible under the Genocide
fundamental provision establishes the Convention, the facts must first be
Article IX provides for certain disputes to be submitted to the Court: “Disputes between obligations whose violation engages the established. As genocide is a crime, it can
the Contracting Parties relating to the interpretation, application or fulfillment of the responsibility of States parties.” It follows only be established in accordance with the
present Convention, including those relating to the responsibility of a State for genocide that, in the contention of the Applicant, the rules of criminal law, under which the first
or for any of the other acts enumerated in Article III, shall be submitted to the Court has jurisdiction under Article IX over requirement to be met is that of individual
International Court of Justice at the request of any of the parties to the dispute.” alleged violations by a Contracting Party of responsibility. The State can incur
those obligations. responsibility only when the existence of
The remaining ten Articles are final clauses dealing with such matters as parties to the genocide has been established beyond all
Convention and its entry into force. reasonable doubt. In addition, it must then
be shown
treaty interpretation and on responsibility of States for internationally wrongful acts. that the person who committed the
genocide can engage the responsibility of
the State . . .”
OBLIGATIONS IMPOSED BY THE CONVENTION ON THE CONTRACTING PARTIES. (This contention went on to mention
The Court notes that there exists a dispute between the Parties as to the meaning and responsibility based on breach of the
the legal scope of Article IX of the Convention, especially about whether the obligations obligation to prevent and punish, matters
the Convention imposes upon the Parties are limited to legislate, and to prosecute or considered later in this Judgment.)
extradite, or whether the obligations of the States parties extend to the obligation not to
commit genocide and the other acts enumerated in Article III. - The Respondent has in addition
presented what it refers to as “alternative
BOSNIA FRY arguments concerning solely State
- this case is about State responsibility and - The Respondent contends to the contrary responsibility for breaches of Articles II and
seeks to establish the responsibilities of a that “the Genocide Convention does not III”. Those arguments
State which, through its leadership, provide for the responsibility of States for addressed the necessary conditions,
through its organs, committed the most acts of genocide as such. The duties especially of intent, as well as of
brutal violations of one of the most sacred prescribed by the Convention relate to ‘the attribution. When presenting those
instruments of international law”. The prevention and punishment of the crime of alternative arguments, counsel for the
Genocide Convention “created a universal, genocide’ when this crime is committed by Respondent repeated the principal
treaty-based concept of State individuals: and the provisions of Articles V submission set out above that “the
responsibility”, and that “it is State and VI [about enforcement and Convention does not suggest in any way
responsibility for genocide that this legal prescription] . . . make this abundantly that States themselves can commit
proceeding is all about”. Article IX of the clear.” genocide”.
Convention quite explicitly imposes on
States a direct It argues that the Court therefore does not
responsibility themselves not to commit have jurisdiction ratione materiae under
genocide or to aid in the commission of Article IX; and continues: The Court observes that what obligations the Convention imposes upon the parties to it
genocide”. As to the obligation of “[t]hese provisions [Articles I, V, VI and IX] depends on the ordinary meaning of the terms of the Convention read in their context
prevention under Article I, a breach of that do not extend to the responsibility of a and in the light of its object and purpose. It reviews the wording of Article I, which
obligation, “is established, it might be said Contracting Party as such for acts of provides inter alia that “[t]he Contracting Parties confirm that genocide, whether
is ‘eclipsed’ by the fact that [the genocide but [only] to responsibility for committed in time of peace or in time of war, is a crime under international law which
Respondent] is itself responsible for the failure to prevent or to punish acts of they undertake to prevent and to punish”. The Court finds that Article I, in particular its
undertaking to prevent, creates obligations distinct from those which appear in the
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subsequent Articles. This finding is confirmed by the preparatory work of the Convention
and the circumstances of its conclusion.
ART. 1 OBLIGATES PARTIES NOT TO COMMIT GENOCIDE. The Court then considers
whether the Parties are under an obligation not to commit genocide themselves since
such an obligation is not expressly imposed by the actual terms of the Convention. In
the view of the Court, taking into account the established purpose of the Convention, the
effets of Article I is to prohibit States from themselves commiting genocide. Such a
prohibition follows, first, from the fact that Article I categorizes genocide as “a crime
under international law”: by agreeing to such a categorization, the States parties must
logically be undertaking not to commit the act so described.
OBLIGATION TO PREVENT GENOCIDE. Secondly, it follows from the expressly stated
obligation to prevent the commission of acts of genocide. It would be paradoxical, if
States were thus under an obligation to prevent, but were not forbidden to commit such
acts through their own organs, or persons over whom they have such firm control that
their conduct is attributable to the State concerned under international law. In short, the
obligation to prevent genocide necessarily implies the prohibition of commission of
genocide. The Court notes that its conclusion is confirmed by one unusual feature of the
wording of Article IX, namely the phrase “including those [disputes] relating to the
responsibility of a State for genocide or any of the other acts enumerated in Article III”.
According to the English text of the Convention, the responsibility contemplated is
responsibility “for genocide”, not merely responsibility “for failing to prevent or punish
genocide”. The particular terms of the phrase as a whole confirm that Contracting
Parties may be held responsible for genocide and the other acts enumerated in Article III
of the Convention.
3 FURTHER ARGUMENTS OF RESPONDENT & THE CORRESPONDING ANSWER
OF THE COURT:
1. FRY: The first is that, as a matter of principle, international law does not
recognize the criminal responsibility of the State, and the Genocide Convention
does not provide a vehicle for the imposition of such criminal responsibility.
ICJ: The Court observes that the obligation for which the Respondent may be held
responsible, in the event of breach, in proceedings under Article IX, is simply an
obligation arising under international law, in this case the provisions of the Convention,
and that the obligations in question and the responsibilities of States that would arise
from breach of such obligations are obligations and responsibilities under international
law. They are not of a criminal nature.
2. FRY: The second is that the nature of the Convention is such as to exclude from
its scope State responsibility for genocide and the other enumerated acts. The
Convention, it is said, is a standard international criminal law convention focused
essentially on the criminal prosecution and punishment of individuals and not on
the responsibility of States.
ICJ: However, the Court sees nothing in the wording or the structure of the provisions of
the Convention relating to individual criminal liability which would displace the meaning
of Article I, read with paragraphs (a) to (e) of Article III, so far as these provisions impose
obligations on States distinct from the obligations which the Convention requires them to
place on individuals.
17
3. FRY: Concerning the third and final argument, the Court examines the drafting
history of the Convention, in the Sixth Committee of the General Assembly, which
is said to show that “there was no question of direct responsibility of the State for
acts of genocide”.
ICJ: However, having reviewed said history, the Court concludes that it may be seen as
supporting the conclusion that Contracting Parties are bound not to commit genocide,
through the actions of their organs or persons or groups whose acts are attributable to
them.
WON THE COURT MAY MAKE A FINDING OF GENOCIDE BY A STATE IN THE
ABSENCE OF A PRIOR CONVICTION OF AN INDIVIDUAL FOR GENOCIDE BY A
COMPETENT COURT?
The Court observes that if a State is to be responsible because it has breached its
obligation not to commit genocide, it must be shown that genocide as defined in
the Convention has been committed. That will also be the case with conspiracy under
Article III, paragraph (b), and complicity under Article III, paragraph (e); and, for
purposes of the obligation to prevent genocide.
FRY: the condition sine qua non for establishing State responsibility is the prior
establishment, according to the rules of criminal law, of the individual
responsibility of a perpetrator engaging the State’s responsibility.
ICJ: the different procedures followed by, and powers available to, the Court and
to the courts and tribunals trying persons for criminal offences, do not themselves
indicate that there is a legal bar to the Court itself finding that genocide or the
other acts enumerated in Article III have been committed. Under its Statute the
Court has the capacity to undertake that task, while applying the standard of proof
appropriate to charges of exceptional gravity. Turning to the terms of the Convention
itself, the Court has already held that it has jurisdiction under Article IX to find a State
responsible if genocide or other acts enumerated in Article III are committed by its
organs, or persons or groups whose acts are attributable to it.
The Court accordingly concludes that State responsibility can arise under the
Convention for genocide and complicity, without an individual being convicted of
the crime or an associated one.
POSSIBLE TERRITORIAL LIMITS OF THE OBLIGATIONS
The Court observes that the substantive obligations arising from Articles I and III are not
on their face limited by territory. They apply to a State wherever it may be acting or may
be able to act in ways appropriate to meeting the obligations in question. The obligation
to prosecute imposed by Article VI is by contrast subject to an express territorial limit.
The trial of persons charged with genocide is to be in a competent tribunal of the State in
the territory of which the act was committed, or by an international penal tribunal with
jurisdiction.
THE QUESTION OF INTENT TO COMMIT GENOCIDE
The Court notes that genocide as defined in Article II of the Convention comprises
“acts” and “intent”. It is well established that the acts -
“(a) Killing members of the group;
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(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its - Accordingly, the Court concludes that it should deal with the matter on the basis that the
physical destruction in whole or in part; targeted group must in law be defined positively, and thus not negatively as the “non-
(d) Imposing measures intended to prevent births within the group”; and Serb” population. The Applicant has made only very limited reference to the non-Serb
(e) “Forcibly transferring children of the group to another group” - populations of Bosnia and Herzegovina other than the Bosnian Muslims, e.g. the Croats.
themselves include mental elements. The Court stresses that, in addition to those The Court will therefore examine the facts of the case on the basis that genocide may be
mental elements, Article II requires a further mental element: the establishment of the found to have been committed if an intent to destroy the Bosnian Muslims, as a group, in
“intent to destroy, in whole or in part, . . . [the protected] group, as such”. It is whole or in part, can be established.
often referred to as a special or specific intent or dolus specialis. It is not enough
that the members of the group are targeted because they belong to that group. - The Court further specifies that for the purposes of Article II, first, the intent must be to
Something more is required. The acts listed in Article II must be done with intent to destroy at least a substantial part of the particular group. That is demanded by the very
destroy the group as such in whole or in part. The words “as such” emphasize that intent nature of the crime of genocide: since the object and purpose of the Convention as a
to destroy the protected group. whole is to prevent the intentional destruction of groups, the part targeted must be
significant enough to have an impact on the group as a whole. Second, the Court
Intent and “ethnic cleansing” observes that it is widely accepted that genocide may be found to have been committed
The Court states that “ethnic cleansing” can only be a form of genocide within the where the intent is to destroy the group within a geographically limited area. A third
meaning of the Convention, if it corresponds to or falls within one of the categories of suggested criterion is qualitative rather than quantitative: the number of individuals
acts prohibited by Article II of the Convention. Neither the intent, as a matter of policy, to targeted should be evaluated not only in absolute terms, but also in relation to the overall
render an area “ethnically homogeneous”, nor the operations that may be carried out to size of the entire group. In addition to the numeric size of the targeted portion, its
implement such policy, can as such be designated as genocide. However, this does not prominence within the group can be a useful consideration.
mean that acts described as “ethnic cleansing” may never constitute genocide, if they
are such as to be characterized as, for example, “deliberately inflicting on the group QUESTIONS OF PROOF
conditions of life calculated to bring about its physical destruction in whole or in part”,
contrary to Article II, paragraph (c), of the Convention, provided such action is carried out Burden of proof
with the necessary specific intent (dolus specialis), that is to say with a view to the The Court states that it is well established in general that the applicant must establish its
destruction of the group, as distinct from its removal from the region. case and that a party asserting a fact must establish it. With regard to the refusal of the
Respondent to produce the full text of certain documents, the Court observes that the
Definition of the protected group Applicant has had extensive documentation and other evidence available to it, especially
The Court needs to identify the group against which genocide may be considered to from the readily accessible records of the International Criminal Tribunal for the former
have been committed. It notes that the Parties disagree on aspects of the definition of Yugoslavia (ICTY), and that it has made very ample use of it. The Court finally observes
the “group”. that although it has not agreed to either of the Applicant’s requests to be provided with
unedited copies of certain documents, it has not failed to note the Applicant’s suggestion
BOSNIA FRY that the Court may be free to draw its own conclusions.
The group refers to “the non-Serb national, Bosnia’s definition of the group is
ethnical or religious group within, but not problematic. First, the group targeted is not Standard of proof
limited to, the territory of Bosnia and sufficiently well defined as such, since, The Parties also differ on the standard of proof.
Herzegovina, including in particular the according to the Applicant’s allegation, that BOSNIA FRY
Muslim population”. It thus follows what is group consists of the non-Serbs, thus an Emphasizing that the matter is not one of According to the Respondent, the
termed the negative approach to the admixture of all the individuals living in criminal law, says that the standard is the proceedings “concern the most serious
definition of the protected group under the Bosnia and Herzegovina except the Serbs, balance of issues of State responsibility and . . . a
Convention. but more particularly the Muslim evidence or the balance of probabilities, charge of such exceptional gravity against
population, which accounts for only a part inasmuch as what is alleged is breach of a State requires a proper degree
of the non-Serb population. Second, the treaty obligations. of certainty. The proofs should be such as
intent to destroy concerned only a part of to leave no room for reasonable doubt.”
the non-Serb population, but the Applicant
failed to specify which part of the group
was targeted.” The Court has long recognized that claims against a State involving charges of
exceptional gravity MUST BE PROVED BY EVIDENCE THAT IS FULLY
ICJ: The essence of the intent is to destroy the protected group, in whole or in part, as CONCLUSIVE. It requires that it be fully convinced that allegations made in the
such. It is a group which must have particular positive characteristics - national, ethnical, proceedings, that the crime of genocide or the other acts enumerated in Article III have
racial or religious - and not the lack of them. This interpretation is confirmed by the been committed, have been clearly established. The same standard applies to the proof
drafting history of the Convention.
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of attribution for such acts.
In respect of the Applicant’s claim that the Respondent has breached its
undertakings to prevent genocide and to punish and extradite persons charged with
genocide, the Court REQUIRES PROOF AT A HIGH LEVEL OF CERTAINTY
appropriate to the seriousness of the allegation.
Methods of proof
EVIDENCE PRESENTED. The Court recalls that the Parties submitted a vast array of
material, from different sources. It included reports, resolutions and findings by various
United Nations organs; documents from other intergovernmental organizations;
documents, evidence and decisions from the ICTY; publications from governments;
documents from non-governmental organizations; media reports, articles and books.
They also called witnesses, experts and witness-experts.
TURNING TO THE FINDINGS OF THE ICTY. The Court must itself make its own
determination of the facts which are relevant to the law which the Applicant claims the
Respondent has breached. It however acknowledges that the present case does have
an unusual feature since many of the allegations before it have already been the subject
of the processes and decisions of the ICTY. The Court has thus to consider their
significance. It recalls that in the case concerning Armed Activities on the Territory of the
Congo (Democratic Republic of the Congo v. Uganda), it notably said that “evidence
obtained by examination of persons directly involved, and who were subsequently cross-
examined by judges skilled in examination and experienced in assessing large amounts
of factual information, some of it of a technical nature, merits special attention”. The
Court states that the fact-finding process of the ICTY falls within this formulation, as
“evidence obtained by persons directly involved”, tested by cross-examination, the
credibility of which has not been challenged subsequently.
ICTY DECISIONS: HIGHLY PERSUASIVE. After having set out the arguments of the
Parties on the weight to be given to the ICTY material and after having reviewed the
various ICTY processes, the Court concludes that it should in principle accept as highly
persuasive relevant findings of fact made by the Tribunal at trial, unless of course they
have been upset on appeal. For the same reasons, any evaluation by the Tribunal
based on the facts as so found for instance about the existence of the required intent, is
also entitled to due weight.
THE FALL OF SREBRENICA REPORT. The Court finally comments on some of the
other evidence submitted to it. Evoking inter alia the report entitled “The Fall of
Srebrenica”, which the United Nations Secretary-General submitted in November 1999
to the General Assembly, it observes that the care taken in preparing said report, its
comprehensive sources and the independence of those responsible for its preparation all
lend considerable authority to it. It assures having gained substantial assistance from
this report. The report attempts to describe in a coherent narrative how thousands of
men and boys were summarily executed and buried in mass graves within a matter of
days while the international community attempted to negotiate access to them. It details
how evidence of atrocities taking place gradually came to light, but too late to prevent the
tragedy which was unfolding.
THE FACTS.
HISTORICAL BACKGROUND.
19
SFRY’S BREAKING UP. After almost ten years of economic crisis and the rise of
nationalism within the republics and growing tension between different ethnic and
national groups, the Soviet Federal Republic of Yugoslavia (SFRY) began to break up.
On 25 June 1991, Slovenia and Croatia declared independence, followed by Macedonia
on 17 September 1991. (Slovenia and Macedonia are not concerned in the present
proceedings; Croatia has brought a separate case against Serbia and Montenegro,
which is still pending on the General List.) On the eve of the war in Bosnia and
Herzegovina which then broke out, according to the last census (31 March 1991), some
44 per cent of the population of the country described themselves as Muslims, some 31
per cent as Serbs and some 17 per cent as Croats.
RISE OF THE REPUBLIC OF SRPSKA (RS). By a “sovereignty” resolution adopted on
14 October 1991, the Parliament of Bosnia
and Herzegovina declared the independence of the Republic. The validity of this
resolution was contested at the time by the Serbian community of Bosnia and
Herzegovina. On 24 October 1991, the Serb Members of the Bosnian Parliament
proclaimed a separate Assembly of the Serb Nation/Assembly of the Serb People of
Bosnia and Herzegovina. On 9 January 1992, the Republic of the Serb People of Bosnia
and Herzegovina (subsequently renamed the Republika Srpska on 12 August 1992) was
declared with the proviso that the declaration would come into
force upon international recognition of the Republic of Bosnia and Herzegovina. On
28 February 1992, the Constitution of the Republic of the Serb People of Bosnia and
Herzegovina was adopted The Republic of the Serb People of Bosnia and Herzegovina
(and subsequently the Republika Srpska) was not and has not been recognized
internationally as a State; it has however enjoyed some de facto independence.
RISE OF THE 3 STATES (BOSNIA and HERZEGOVINA; SERBIA & MONTENEGRO
under the name of FRY; and REPUBLIC OF MONTENEGRO). On 29 February and 1
March 1992, a referendum was held on the question of independence in Bosnia and
Herzegovina. On 6 March 1992, Bosnia and Herzegovina officially declared its
independence. With effect from 7 April 1992, Bosnia and Herzegovina was recognized by
the European Community. On 7 April 1992, Bosnia and Herzegovina was recognized by
the United States. On 27 April 1992, the Constitution of the Federal Republic of
Yugoslavia was adopted consisting of the Republic of Serbia and the Republic of
Montenegro. As explained above, Montenegro declared its independence on 3 June
2006. All three States have been admitted to membership of the United Nations: Bosnia
and Herzegovina on 22 May 1992; Serbia and Montenegro, under the name of the
Federal Republic of Yugoslavia on 1 November 2000; and the Republic of Montenegro
on 28 June 2006.
THE ENTITIES INVOLVED IN THE EVENTS COMPLAINED OF.
It will be convenient next to define the institutions, organizations or groups that were
the actors in the tragic events that were to unfold in Bosnia and Herzegovina. Of the
independent sovereign States that had emerged from the break-up of the SFRY, two are
concerned in the present proceedings: on the one side, the FRY (later to be called
Serbia and Montenegro), which was composed of the two constituent republics of Serbia
and Montenegro; on the other, the Republic of Bosnia and Herzegovina. At the time
when the latter State declared its independence
(15 October 1991), the independence of two other entities had already been declared: in
Croatia, the Republika Srpska Krajina, on 26 April 1991, and the Republic of the Serb
People of Bosnia and Herzegovina, later to be called the Republika Srpska, on 9
January 1992. The Republika Srpska never attained international recognition as a
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sovereign State, but it had de facto control of substantial territory, and the loyalty of large
numbers of Bosnian Serbs.
FRY GAVE MILITARY & FINANCIAL SUPPORT TO RS. The Court observes that the
Applicant has asserted the existence of close ties between the Government of the
Respondent and the authorities of the Republika Srpska, of a political and financial
nature, and also as regards administration and control of the army of the Republika
Srpska (VRS). The Court finds it established that the Respondent was making its
considerable military and financial support available to the Republika Srpska, and had it
withdrawn that support, this would have greatly constrained the options that were
available to the Republika Srpska authorities.
FOCUS ON ALLEGED ATROCITIES & DETERMINATION IF SUCH FALL UNDER ART.
2 OF THE GENOCIDE CONVENTION.
The Court then embarks on the examination of the facts alleged by the Applicant, in
order to satisfy itself, first, that the alleged atrocities occurred; secondly, whether such
atrocities, if established, fall within the scope of Article II of the Genocide Convention,
that is to say whether the facts establish the existence of an intent, on the part of the
perpetrators of those atrocities, to destroy, in whole or in part, a defined group, namely
that of the Bosnian Muslims.
1. Article II (a): Killing members of the protected group
The Court examines the evidence of killings of members of the protected group
(Article II (a) of the Genocide Convention) in the principal areas of Bosnia: Sarajevo,
Drina River Valley, Prijedor, Banja Luka and Brčko - and in the various detention camps.
It finds that it is established by overwhelming evidence that massive killings in
specific areas and detention camps throughout the territory of Bosnia and
Herzegovina were perpetrated during the conflict. Furthermore, the evidence
presented shows that the victims were in large majority members of the protected
group, which suggests that they may have been systematically targeted by the killings.
The Court is however not convinced, on the basis of the evidence before it, that it
has been conclusively established that the massive killings of members of the
protected group were committed with the specific intent (dolus specialis) on the
part of the perpetrators to destroy, in whole or in part, the group as such. The
killings outlined above may amount to war crimes and crimes against humanity, but the
Court has no jurisdiction to determine whether this is so.
The massacre at Srebrenica
WHAT HAPPENED in brief. Despite a UN Security Council resolution declaring that the
enclave was to be ‘free from armed attack or any other hostile act’, units of the Bosnian
Serb Army (‘VRS’) launched an attack and captured the town. Within a few days,
approximately 25,000 Bosnian Muslims, most of them women, children and elderly
people who were living in the area, were uprooted and, in an atmosphere of terror,
loaded onto overcrowded buses by the Bosnian Serb forces and transported across the
confrontation lines into Bosnian Muslim-held territory. The military-aged Bosnian Muslim
men of Srebrenica, however, were consigned to a separate fate. As thousands of them
attempted to flee the area, they were taken prisoner, detained in brutal conditions and
then executed. More than 7,000 people were never seen again.
FINDINGS OF THE COURT. The Court observes that the Trial Chambers in the Krstić
and Blagojević cases both found that Bosnian Serb forces killed over 7,000 Bosnian
20
Muslim men following the takeover of the “safe area” in July 1995. Accordingly they
found that the actus reus of killings in Article II (a) of the Convention was satisfied.
Both also found that actions of Bosnian Serb forces also satisfied the actus reus of
causing serious bodily or mental harm, as defined in Article II (b) of the Convention - both
to those who where about to be executed, and to the others who were separated from
them in respect of their forced displacement and the loss suffered by survivors among
them. The Court is thus fully persuaded that both killings within the terms of
Article II (a) of the Convention, and acts causing serious bodily or mental harm
within the terms of Article II (b) thereof occurred during the Srebrenica massacre.
WAS THERE SPECIFIC INTENT? The Court goes on to examine whether there was
specific intent (dolus specialis) on the part of the perpetrators. Its conclusion, fortified by
the Judgments of the ICTY Trial Chambers in the Krstić and Blagojević cases 1, is that the
necessary intent was not established until after the change in the military
objective (from “reducing the enclave to the urban area” to taking over Srebrenica
town and the enclave as a whole) and after the takeover of Srebrenica, on about 12
or 13 July. This may be significant for the application of the obligations of the
Respondent under the Convention. The Court has no reason to depart from the
Tribunal’s determination that the necessary specific intent (dolus specialis) was
established and that it was not established until that time.
KRSTIC CASE. The Court turns to the findings in the Krstić case, in which the Appeals
Chamber endorsed the findings of the Trial Chamber in the following terms:
“In this case, having identified the protected group as the national group of
Bosnian Muslims, the Trial Chamber concluded that the part the VRS (Bosnian Serb
Army) Main Staff and Radislav Krstić targeted was the Bosnian Muslims of Srebrenica,
or the Bosnian Muslims of Eastern Bosnia. This conclusion comports with the guidelines
outlined above. The size of the Bosnian Muslim population in Srebrenica prior to its
capture by the VRS forces in 1995 amounted to approximately forty thousand people.
This represented not only the Muslim inhabitants of the Srebrenica municipality but also
many Muslim refugees from the surrounding region. Although this population constituted
only a small percentage of the overall Muslim population of Bosnia and Herzegovina at
the time, the importance of the Muslim community of Srebrenica is not captured solely by
its size.” The Court sees no reason to disagree with the concordant findings of the Trial
Chamber and the Appeals Chamber. The Court concludes that the acts committed at
Srebrenica falling within Article II (a) and (b) of the Convention were committed
with the specific intent to destroy in part the group of the Muslims of Bosnia and
1
In those cases, the tribunal held that criminal acts committed by the Bosnian Serb forces
were all parts of one single scheme to commit genocide of the Bosnian Muslims of Srebrenica,
as reflected in the ‘Krivaja 95 operation’, the ultimate objective of which was to eliminate the
enclave and, therefore, the Bosnian Muslim community living there.” The Chamber
immediately goes on to refer only to the events the massacres and the forcible transfer of the
women and children after the fall of Srebrenica, that is sometime after the change of military
objective on 9 or 10 July. The conclusion on intent is similarly focused:
“The Trial Chamber has no doubt that all these acts constituted a single operation executed
with the intent to destroy the Bosnian Muslim population of Srebrenica. The Trial Chamber
finds that the Bosnian Serb forces not only knew that the combination of the killings of the men
with the forcible transfer of the women, children and elderly, would inevitably result in the
physical disappearance of the Bosnian Muslim population of Srebrenica, but clearly intended
through these acts to physically destroy this group.”
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Herzegovina as such; and accordingly that these were acts of genocide, The Respondent argues that the events
committed by members of the VRS in and around Srebrenica from about referred to by the Applicant took place in a
13 July 1995. context of war which affected the entire
population, whatever its origin. In its view,
2. Article II (b): Causing serious bodily or mental harm to members of the “it is obvious that in any armed conflict the
protected group conditions of life of the civilian population
deteriorate”. The
Having examined the specific allegations of the Applicant under this heading, and having Respondent considers that, taking into
taken note of the evidence presented (such as testimony of witnesses of torture, account the civil war in Bosnia and
beating… “we were beaten with clubs, cables, bats, or other similar items Herzegovina which generated inhuman
by the military police. The men were placed in small, bare stables, which were conditions of life for the entire population in
overcrowded and contained no toilet facilities. While at the camp, the detainees the territory of that State, “it is
received inadequate food and water. Their heads were shaved, and they were severely impossible to speak of the deliberate
beaten during interrogations.”) to the ICTY, the Court considers that it has been infliction on the Muslim group alone or the
established by fully conclusive evidence that members of the protected group non-Serb group alone of conditions of life
were systematically victims of massive mistreatment, beatings, rape and torture calculated to bring about its destruction”.
causing serious bodily and mental harm, during the conflict and, in particular, in
the detention camps. The Court finds, however, that it has not been conclusively The Respondent argues that the safe
established that those atrocities, although they too may amount to war crimes and areas proclaimed by the Security Council
crimes against humanity, were committed with the specific intent (dolus specialis) had not been completely disarmed by the
to destroy the protected group, in whole or in part. Bosnian army. For instance, according to
testimony given in the Galić case by the
3. Article II (c): Deliberately inflicting on the group conditions of life calculated to deputy commander of the Bosnian army
bring about its physical destruction in whole or in part corps covering the Sarajevo area, the
Bosnian army had deployed 45,000 troops
The Court goes on to examine in turn the evidence concerning the three sets of claims within Sarajevo. The Respondent also
made by the Applicant: encirclement, shelling and starvation; deportation and pointed to further testimony in that case to
expulsion; destruction of historical, religious and cultural property. It considers the the effect that certain troops in the Bosnian
evidence presented regarding the conditions of life in the detention camps already army were wearing civilian clothes and that
referred to above. the Bosnian army was using civilian
BOSNIA FRY buildings for its bases and positioning its
tanks and artillery in public places.
Moreover, the Respondent observes that,
in his book, Fighting for Peace, General
Rose was of the view that military
equipment was installed in the vicinity of
civilians, for instance, in the grounds of the
hospital in Sarajevo and that “[t]he
Bosnians had evidently chosen this
location with the intention of attracting Serb
fire, in the hope that the
resulting carnage would further tilt
international support in their favour”

FRY’s DEFENSE AS TO THE

EXPULSION CLAIM: The Respondent
argues that displacements of populations
may be necessary according to the
obligations set down in Articles 17 and 49,
paragraph 2, of the Geneva Convention
relative to the Protection of Civilian
Persons in Time of War, for instance if the
security of the population Always
or imperative
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On the basis of a careful examination of the evidence submitted by the Parties with
respect to encirclement, shelling and starvation on the one hand, and deportation and
expulsion2 on the other hand, the Court cannot establish that the alleged acts were
accompanied by the specific intent to destroy the protected group in whole or in
part.
With respect to the destruction of historical, religious and cultural property 3, the Court
finds that there is conclusive evidence of the deliberate destruction of the historical,
cultural and religious heritage of the protected group. However, such destruction
does not fall as such within the categories of acts of genocide set out in Article II
of the Convention.
The Court notes that the Applicant has presented substantial evidence as to the
conditions of life in the detention camps. It was found that the detainees were subjected
to inhumane living conditions by depriving them of adequate food, water, medical care,
sleeping and toilet facilities On the basis of the elements presented to it concerning the
camps, the Court considers that there is convincing and persuasive evidence that
terrible conditions were inflicted upon detainees of the camps. However, the
evidence presented has not enabled the Court to find that those acts were
accompanied by specific intent (dolus specialis) to destroy the protected group, in
whole or in part. In this regard, the Court observes that, in none of the ICTY cases
concerning camps cited above, has the Tribunal found that the accused acted with such
specific intent (dolus specialis).
4. Article II (d): Imposing measures to prevent births within the protected group.
BOSNIA’s CONTENTIONS. The Applicant invoked several arguments to show that
measures were imposed to prevent births, contrary to the provision of Article II,
paragraph (d) of the Genocide Convention.
2 led to psychological trauma which prevented victims from forming relationships and
“thousands of civilians were unlawfully expelled or deported to other places inside and
outside the Republic of Bosnia and Herzegovina” and “[t]he result of these expulsions was the
partial or total elimination of Muslims and Bosnian Croats in some of [the] Bosnian Serb-held
regions of Bosnia and Herzegovina”. The Chamber further stated that “[i]n the municipalities of
Prijedor, Foča, Vlasenica, Brčko and Bosanski Šamac, to name but a few, the once non-
Serbian majority was systematically exterminated or expelled by force or intimidation”
3
“Throughout the territory of Bosnia and Herzegovina under their control, Bosnian Serb forces
. . . destroyed, quasi-systematically, the Muslim and Catholic cultural heritage, in particular,
sacred sites. According to estimates provided at the hearing by an expert witness, Dr. Kaiser,
a total of 1.123 mosques, 504 Catholic churches and five synagogues were destroyed or
damaged, for the most part, in the absence of military activity or after the cessation thereof.
22
1. First, the Applicant claimed that the “forced separation of male and female Muslims in
Bosnia and Herzegovina, as systematically practised when various municipalities were
occupied by the Serb forces . . . in all probability entailed a decline in the birth rate of the
group, given the lack of physical contact over many months”.
ICJ: The Court notes that no evidence was provided in support of this statement.
2. Secondly, the Applicant submitted that rape and sexual violence against women led to
physical trauma which interfered with victims’ reproductive functions and in some cases
resulted in infertility.
ICJ: The only evidence adduced by the Applicant was the indictment in the
Gagović case before the ICTY in which the Prosecutor stated that one witness could no
longer give birth to children as a result of the sexual abuse she suffered. In the Court’s
view, an indictment by the Prosecutor does not constitute persuasive evidence.
Moreover, it notes that the Gagović case did not proceed to trial due to the death of the
accused.
3. The Applicant referred to sexual violence against men which prevented them
from procreating subsequently. In support of this assertion, the Applicant noted that, in
the Tadić case, the Trial Chamber found that, in Omarska camp, the prison guards forced
one Bosnian Muslim man to bite off the testicles of another Bosnian Muslim man.
Applicant also cited a report in the newspaper, Le Monde, on a study
by the World Health Organization and the European Union on sexual assaults on men
during the conflict in Bosnia and Herzegovina, which alleged that sexual violence against
men was practically always accompanied by threats to the effect that the victim would no
longer produce Muslim children. The article in Le Monde also referred to a statement by
the President of a non-governmental organization called the Medical Centre for Human
Rights to the effect that approximately 5,000 non-Serb men were the victims of sexual
violence.
ICJ: However, the Court notes that the article in Le Monde is only a secondary source.
Moreover, the results of the World Health Organization and European Union study were
only preliminary, and there is no indication as to how the Medical Centre for Human
Rights arrived at the figure of 5,000 male victims of sexual violence.
4.Fourthly, the Applicant argued that rape and sexual violence against men and women
founding a family. In this regard, the Applicant noted that in the Akayesu case, the ICTR
considered that “rape can be a measure intended to prevent births when the person
raped refuses subsequently to procreate”
ICJ: However, the Court notes that the Applicant presented no evidence that this was the
case for women in Bosnia and Herzegovina.
5. Fifthly, the Applicant considered that Bosnian Muslim women who suffered sexual
violence might be rejected by their husbands or not be able to find a husband.
ICJ: Again, the Court notes that no evidence was presented in support of this statement.
FRY: The Respondent considers that the Applicant “alleges no fact, puts forward no
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serious
argument, and submits no evidence” for its allegations that rapes were committed in
order to prevent births within a group and notes that the Applicant’s contention that there
was a decline in births within the protected group is not supported by any evidence
concerning the birth rate in Bosnia and Herzegovina either before or after the war.
CONCLUSION. Having carefully examined the arguments of the Parties, the Court finds
that the evidence placed before it by the Applicant does not enable it to conclude
that Bosnian Serb forces committed such acts.
5. Article II (e): Forcibly transferring children of the protected group to another
group
BOSNIA: The Applicant claims that rape was used “as a way of affecting the
demographic balance by impregnating Muslim women with the sperm of Serb males” or,
in other words, as “procreative rape”. The Applicant argues that children born as a result
of these “forced pregnancies” would not be considered to be part of the protected group
and considers that the intent of the perpetrators was to transfer the unborn children to
the group of Bosnian Serbs.
FRY: The Respondent points out that Muslim women who had been raped gave birth to
their babies in Muslim territory and consequently the babies would have been brought up
not by Serbs but, on the contrary, by Muslims. Therefore, in its view, it cannot be claimed
that the children were transferred from one group to the other.
CONCLUSION. The Court, on the basis of the foregoing elements, finds that the
evidence placed before it by the Applicant does not establish that there was any form of
policy of forced pregnancy, nor that there was any aim to transfer children of the
protected group to another group within the meaning of Article II (e) of the Convention.
* ALLEGED GENOCIDE OUTSIDE BOSNIA AND HERZEGOVINA
CONTENTION: In the submissions in its Reply, the Applicant has claimed that the
Respondent has violated its obligations under the Genocide Convention “by destroying in
part, and attempting to destroy in whole, national, ethnical or religious groups within the,
but not limited to the, territory of Bosnia and Herzegovina, including in particular the
Muslim population . . .”
The Applicant devoted a section in its Reply to the contention that acts of genocide, for
which the Respondent was allegedly responsible, also took place on the territory of the
FRY; these acts were similar to those perpetrated on Bosnian territory, and the
constituent elements of “ethnic cleansing as a policy” were also found in the territory of
the FRY. This question of genocide committed within the FRY was not actively pursued
by the Applicant in the course of the oral argument before
the Court; however, the submission quoted above was maintained in the final
submissions presented at the hearings, and the Court must therefore address it. It was
claimed by the Applicant that the genocidal policy was aimed not only at citizens of
Bosnia and Herzegovina, but also at Albanians, Sandžak Muslims, Croats, Hungarians
and other minorities;
CONCLUSION: The Court finds that the Applicant has not established to the
satisfaction of the Court any facts in support of the allegation according to which acts of
23
genocide, for which the Respondent was allegedly responsible, also took place on the
territory of the FRY.
* THE QUESTION OF PATTERN OF ACTS SAID TO EVIDENCE AN INTENT TO
COMMIT GENOCIDE
CONTENTION: The Applicant relies on the alleged existence of an overall plan to
commit genocide throughout the territory, against persons identified everywhere and in
each case on the basis of their belonging to a specified group. The very pattern of the
atrocities committed over many communities, over a lengthy period, focused on Bosnian
Muslims and also Croats, demonstrates the necessary intent.
CONCLUSION: The Court notes that this argument of the Applicant moves from the
intent of the individual perpetrators of the alleged acts of genocide complained of, to the
intent of higher authority, whether within the VRS or the Republika Srpska, or at the level
of the Government of the Respondent itself. Having examined, in context, the Decision
on Strategic Goals issued in May 1992 by Momčilo Krajišnik as the President of the
National Assembly of Republika Srpska, which in the Applicant’s view approaches an
official statement of an overall plan, the Court does not see the 1992 Strategic Goals
as establishing the specific intent.
The Court cannot agree with such a broad proposition. The dolus specialis, the specific
intent to destroy the group in whole or in part, has to be convincingly shown by reference
to particular circumstances, unless a general plan to that end can be convincingly
demonstrated to exist; and for a pattern of conduct to be accepted as evidence of its
existence, it would have to be such that it could only point to the existence of such
intent.
The Court finds that the Applicant has not established the existence of that intent on the
part of the Respondent, either on the basis of a concerted plan, or on the basis that the
events reviewed above reveal a consistent pattern of conduct which could only point to
the existence of such intent.
CAN THE SREBRENICA MASSACRE BE ATTRIBUTED TO THE FRY?
Having however concluded, in the specific case of the massacres at Srebrenica
in July 1995, that acts of genocide were committed, the Court turns to the question
whether those acts are attributable to the Respondent.
Responsibility for events at Srebrenica.
The alleged admission: Respondent did not admit.
The Court first notes that the Applicant contends that the Respondent has in fact
recognized that genocide was committed at Srebrenica, and has accepted legal
responsibility for it. For purposes of determining whether the Respondent has
recognized its responsibility, the Court may take into account any statements made by
either party that appear to bear upon the matters in issue, and have been brought to its
attention, and may accord to them such legal effect as may be appropriate. However, in
the present case, it appears to the Court that the declaration made by the Council of
Ministers of the Respondent on 15 June 2005 following the showing on a Belgrade
television channel on 2 June 2005 of a video-recording of the murder by a paramilitary
unit of six Bosnian Muslim prisoners near Srebrenica was of a political nature; it was
clearly not intended as an admission.
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The test of responsibility
In order to ascertain whether the international responsibility of the Respondent can
have been incurred, on whatever basis, in connection with the massacres committed in
the Srebrenica area during the period in question, the Court must consider three
questions in turn.
1. First, it needs to be determined whether the acts of genocide could be attributed to the
Respondent on the basis that those acts where committed by its organs or persons
whose acts are attributable to it under customary rules of State Responsibility.
2. Second, the Court needs to ascertain whether acts of the kind referred to in Article III,
paragraphs (b) to (e), of the Convention, other than genocide itself, were committed by
persons or organs whose conduct is attributable to the Respondent. 3. Finally, it will be
for the Court to rule on the issue as to whether the Respondent complied with its twofold
obligation deriving from Article I of the Convention to prevent and punish genocide.
THE QUESTION OF ATTRIBUTION OF THE SREBRENICA GENOCIDE TO THE
RESPONDENT ON THE BASIS OF THE CONDUCT OF ITS ORGANS
The first of these two questions relates to the well-established rule, one of the
cornerstones of the law of State responsibility, that the conduct of any State organ is
to be considered an act of the State under international law, and therefore gives
rise to the responsibility of the State if it constitutes a breach of an international
obligation of the State.
When applied to the present case, this rule first calls for a determination whether the
acts of genocide committed in Srebrenica were perpetrated by “persons or
entities” having the status of organs of the Federal Republic of Yugoslavia (as the
Respondent was known at the time) under its internal law, as then in force.
ICJ: According to the Court, it must be said that there is nothing which could justify an
affirmative response to this question. It has not been shown that the FRY army
took part in the massacres, nor that the political leaders of the FRY had a hand in
preparing, planning or in any way carrying out the massacres. It is true that there is
much evidence of direct or indirect participation by the official army of the FRY, along
with the Bosnian Serb armed forces, in military operations in Bosnia and Herzegovina in
the years prior to the events at Srebrenica.
PARTICIPATION NOT SHOWN. That participation was repeatedly condemned by the
political organs of the United Nations, which demanded that the FRY put an end to it. It
has however not been shown that there was any such participation in relation to
the massacres committed at Srebrenica. Further, neither the Republika Srpska,
nor the VRS were de jure organs of the FRY, since none of them had the status of
organ of that State under its internal law.
NOT ORGANS OF THE FRY. With regard to the particular situation of General Mladić,
the Court notes first that no evidence has been presented that either General Mladić
or any of the other officers whose affairs were handled by the 30th Personnel
Centre in Belgrade were, according to the internal law of the Respondent, officers
of the army of the Respondent - a de jure organ of the Respondent. Nor has it been
conclusively established that General Mladić was one of those officers; and even on the
basis that he might have been, the Court does not consider that he would, for that
reason alone, have to be treated as an organ of the FRY for the purposes of the
application of the rules of State responsibility. There is no doubt that the FRY was
24
providing substantial support, inter alia, financial support, to the Republika Srpska, and
that one of the forms that support took was payment of salaries and other benefits to
some officers of the VRS, but the Court considers that this did not automatically make
them organs of the FRY. The particular situation of General Mladić, or of any other VRS
officer present at Srebrenica who may have been being “administered” from Belgrade, is
not such as to lead the Court to modify the conclusion reached in the previous
paragraph.
WON THE RESPONDENT MIGHT BEAR RESPONSIBILITY FOR THE ACTS OF THE
PARAMILITARY MILITIA KNOWN AS THE “SCORPIONS” IN THE SREBRENICA
AREA.
NO. Judging on the basis of materials submitted to it, the Court is unable to find that the
“Scorpions” - referred to as “a unit of Ministry of Interiors of Serbia” in those documents -
were, in mid-1995, de jure organs of the Respondent. Furthermore, the Court notes
that in any event the act of an organ placed by a State at the disposal of another
public authority shall not be considered an act of that State if the organ was acting
on behalf of the public authority at whose disposal it had been placed.
NOT DEPENDENT ON FRY. The Court observes that, according to its jurisprudence
(notably its 1986 Judgment in the case concerning Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America)), persons, groups of
persons or entities may, for purposes of international responsibility, be equated with
State organs even if that status does not follow from internal law, provided that in fact the
persons, groups or entities act in “complete dependence” on the State, of which they are
ultimately merely the instrument. In the present case, the Court however cannot find that
the persons or entities that committed the acts of genocide at Srebrenica had such ties
with the FRY that they can be deemed to have been completely dependent on it.
At the relevant time, July 1995, according to the Court, neither the Republika Srpska nor
the VRS could be regarded as mere instruments through which the FRY was acting, and
as lacking any real autonomy. The Court further states that it has not been presented
with materials indicating that the “Scorpions” were in fact acting in complete dependence
on the Respondent.
CONCLUSION: The Court therefore finds that the acts of genocide at Srebrenica
cannot be attributed to the Respondent as having been committed by its organs or
by persons or entities wholly dependent upon it, and thus do not on this basis
entail the Respondent’s international responsibility.
The question of attribution of the Srebrenica genocide to the Respondent on the
basis of direction or control
WON the massacres at Srebrenica were committed by persons who, though not
having the status of organs of the Respondent, nevertheless acted on its
instructions or under its direction or control.
APPLICABLE RULE. The Court indicates that the applicable rule, which is one of
customary law of international responsibility, is that the conduct of a person or
group of persons shall be considered an act of a State under international law if
the person or group of persons is in fact acting on the instructions of, or under
the direction or control of, that State in carrying out the conduct. This provision
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must be understood in the light of the Court’s jurisprudence on the subject, particularly
that of the 1986 Judgment in the case concerning Military and Paramilitary Activities in
and against Nicaragua.
EFFECTIVE CONTROL. Under the test set out above, it must be shown that this
“effective control” was exercised, or that the State’s instructions were given, in respect of
each operation in which the alleged violations occurred, not generally in respect of the
overall actions taken by the persons or groups of persons having committed the
violations.
NOT ESTABLISHED. The Court finds that in the light of the information available to it, it
has not been established that the massacres at Srebrenica were committed by
persons or entities ranking as organs of the Respondent. It finds also that it has
not been established that those massacres were committed on the instructions, or
under the direction of organs of the Respondent State, nor that the Respondent
exercised effective control over the operations in the course of which those
massacres, which constituted the crime of genocide, were perpetrated.
KILLED W/O INSTRUCTIONS. In the view of the Court, the Applicant has not proved
that instructions were issued by the federal authorities in Belgrade, or by any other organ
of the FRY, to commit the massacres, still less that any such instructions were given with
the specific intent (dolus specialis) characterizing the crime of genocide. All indications
are to the contrary: that the decision to kill the adult male population of the Muslim
community in Srebrenica was taken by some members of the VRS Main Staff, but
without instructions from or effective control by the FRY.
CONCLUSION: ACTS CANNOT BE ATTRIBUTED TO RESPONDENT. The Court
concludes from the foregoing that the acts of those who committed genocide at
Srebrenica cannot be attributed to the Respondent under the rules of international
law of State responsibility: thus, the international responsibility of the
Respondent is not engaged on this basis.
RESPONSIBILITY, IN RESPECT OF SREBRENICA, FOR ACTS ENUMERATED IN
ARTICLE III, PARAGRAPHS (B) TO (E), OF THE GENOCIDE CONVENTION.
The Court comes to the second of the questions set out above, namely, that relating to
the Respondent’s possible responsibility on the ground of one of the acts related to
genocide enumerated in Article III of the Convention. It notes that it is clear from an
examination of the facts that only alleged acts of complicity in genocide, within the
meaning of Article III, paragraph (e), are relevant in the present case.
CONSIDERATIONS. The question is whether such acts can be attributed to organs of
the Respondent or to persons acting under its instructions or under its effective
control. The Court states that, in order to ascertain whether the Respondent is
responsible for “complicity in genocide”, it must examine whether those organs or
persons furnished “aid or assistance” in the commission of the genocide in Srebrenica, in
a sense not significantly different from that of those concepts in the general law of
international responsibility. It also needs to consider whether the organ or person
furnishing aid or assistance to a perpetrator of the crime of genocide acted knowingly,
that is to say, in particular, was aware or should have been aware of the specific intent
(dolus specialis) of the principal perpetrator.
25
NOT ESTABLISHED THAT FRY SUPPLIED AID OR ASSISTANCE WHILE BEING
AWARE OF THEIR INTENT TO COMMIT GENOCIDE. The Court is not convinced by
the evidence furnished by the Applicant that the above conditions were met. In
particular, it has not been established beyond any doubt in the argument between
the Parties whether the authorities of the FRY supplied - and continued to supply -
the VRS leaders who decided upon and carried out those acts of genocide with
their aid and assistance, at a time when those authorities were clearly aware that
genocide was about to take place or was under way.
The Court notes that a point which is clearly decisive in this connection is that it was not
conclusively shown that the decision to eliminate physically the adult male
population of the Muslim community from Srebrenica was brought to the attention
of the Belgrade authorities when it was taken.
CONCLUSION: The Court concludes from the above that the international responsibility
of the Respondent is not engaged for acts of complicity in genocide mentioned in
Article III, paragraph (e), of the Convention. In the light of this finding, and of the findings
above relating to the other paragraphs of Article III, the international responsibility of the
Respondent is not engaged under Article III as a whole.
RESPONSIBILITY FOR BREACH OF THE OBLIGATIONS TO PREVENT AND
PUNISH GENOCIDE
The Court points out that in the Genocide Convention, the duty to prevent genocide and
the duty to punish its perpetrators are two distinct yet connected obligations. Each of
them must accordingly be considered in turn.
- THE OBLIGATION TO PREVENT GENOCIDE
WHAT DOES THIS OBLIGATION MEAN & ENTAIL? The Court makes a few
preliminary remarks. First, the Genocide Convention is not the only international
instrument providing for an obligation on the States parties to it to take certain steps to
prevent the acts it seeks to prohibit. Secondly, it is clear that the obligation in question is
one of conduct and not one of result, in the sense that a State cannot be under an
obligation to succeed, whatever the circumstances, in preventing the commission of
genocide: the obligation of States parties is rather to employ all means reasonably
available to them, so as to prevent genocide so far as possible. A State does not incur
responsibility simply because the desired result is not achieved; responsibility is however
incurred if the State manifestly failed to take all measures to prevent genocide which
were within its power, and which might have contributed to preventing the genocide.
Thirdly, a State can be held responsible for breaching the obligation to prevent genocide
only if genocide was actually committed. Fourth and finally, the Court believes it
especially important to lay stress on the differences between the requirements to be met
before a State can be held to have violated the obligation to prevent genocide - within
the meaning of Article I of the Convention - and those to be satisfied in order for a State
to be held responsible for “complicity in genocide” - within the meaning of Article III,
paragraph (e) - as previously discussed.
WITH RESPECT TO THE FACTS OF THE CASE. The Court then considers the facts of
the case, confining itself to the FRY’s conduct vis-à-vis the Srebrenica massacres.
1. It first notes that, during the period under consideration, the FRY was in a position of
influence, over the Bosnian Serbs who devised and implemented the genocide in
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Srebrenica, unlike that of any of the other States parties to the Genocide Convention
owing to the strength of the political, military and financial links between the FRY on the
one hand and the Republika Srpska and the VRS on the other, which, though somewhat
weaker than in the preceding period, nonetheless remained very close.
2. Secondly, the Court cannot but note that, on the relevant date, the FRY was bound by
very specific obligations by virtue of the two Orders of the Court indicating provisional
measures delivered in 1993. In particular, in its Order of 8 April 1993, the Court stated,
inter alia, that the FRY was required to ensure “that any military, paramilitary or irregular
armed units which may be directed or supported by it, as well as any organizations and
persons which may be subject to its control, direction or influence, do not commit any
acts of genocide, of conspiracy to commit genocide, of direct and public incitement to
commit genocide, or of complicity in genocide . . .”. The Court’s use, in the above
passage, of the term “influence” is particularly revealing of the fact that the Order
concerned not only the persons or entities whose conduct was attributable to the FRY,
but also all those with whom the Respondent maintained close links and on which it
could exert a certain influence.
3. Thirdly, the Court recalls that although it has not found that the information available to
the Belgrade authorities indicated, as a matter of certainty, that genocide was imminent
(which is why complicity in genocide was not upheld above), they could hardly have
been unaware of the serious risk of it once the VRS forces had decided to occupy the
Srebrenica enclave.
CONCLUSION: In view of their undeniable influence and of the information,
voicing serious concern, in their possession, the Yugoslav federal authorities
should, in the view of the Court, have made the best efforts within their power to
try and prevent the tragic events then taking shape, whose scale, though it could
not have been foreseen with certainty, might at least have been surmised. The
FRY leadership, and President Milošević above all, were fully aware of the climate of
deep-seated hatred which reigned between the Bosnian Serbs and the Muslims in the
Srebrenica region. Yet the Respondent has not shown that it took any initiative to
prevent what happened, or any action on its part to avert the atrocities which were
committed. It must therefore be concluded that the organs of the Respondent did
nothing to prevent the Srebrenica massacres, claiming that they were powerless
to do so, which hardly tallies with their known influence over the VRS. As indicated
above, for a State to be held responsible for breaching its obligation of prevention, it
does not need to be proven that the State concerned definitely had the power to prevent
the genocide; it is sufficient that it had the means to do so and that it manifestly refrained
from using them.
Such is the case here. In view of the foregoing, the Court concludes that the
Respondent violated its obligation to prevent the Srebrenica genocide in such a
manner as to engage its international responsibility.
- THE OBLIGATION TO PUNISH GENOCIDE
The Court first recalls that the genocide in Srebrenica, the commission of which it has
established above, was not carried out in the Respondent’s territory. It concludes from
this that the Respondent cannot be charged with not having tried before its own
courts those accused of having participated in the Srebrenica genocide, either as
principal perpetrators or as accomplices, or of having committed one of the other acts
26
mentioned in Article III of the Convention in connection with the Srebrenica genocide.
WON THE RESPONDENT FULFILLED ITS OBLIGATION TO CO-OPERATE WITH
THE “INTERNATIONAL PENAL TRIBUNAL” REFERRED TO IN ARTICLE VI OF THE
CONVENTION.
It is certain that once such a court has been established, Article VI obliges the
Contracting Parties “which shall have accepted its jurisdiction” to co-operate with it,
which implies that they will arrest persons accused of genocide who are in their territory -
even if the crime of which they are accused was committed outside it - and, failing
prosecution of them in the parties’ own courts, that they will hand them over for trial by
the competent international tribunal.
ICTY AS INTERNATIONAL PENAL TRIBUNAL. The Court establishes that the ICTY
constitutes an “international penal tribunal” within the meaning of Article VI and that the
Respondent must be regarded has having “accepted the jurisdiction” of the tribunal
within the meaning of the provision from 14 December 1995 at the latest, the date of the
signing and entry into force of the Dayton Agreement between Bosnia and Herzegovina,
Croatia and the FRY. Annex 1A of that treaty, made binding on the parties by virtue of its
Article II, provides namely that they must fully co-operate, notably with the ICTY.
RESPONDENT’S CONTENTION. In this connection, the Court first observes that, during
the oral proceedings, the Respondent asserted that the duty to co-operate had been
complied with following the régime change in Belgrade in the year 2000, thus implicitly
admitting that such had not been the case during the preceding period. The conduct of
the organs of the FRY before the régime change however engages the Respondent’s
international responsibility just as much as it does that of its State authorities from that
date. Further, the Court cannot but attach a certain weight to the plentiful, and mutually
corroborative, information suggesting that General Mladić, indicted by the ICTY for
genocide, as one of those principally responsible for the Srebrenica massacres, was on
the territory of the Respondent at least on several occasions and for substantial periods
during the last few years and is still there now, without the Serb authorities doing what
they could and can reasonably do to ascertain exactly where he is living and arrest him.
CONCLUSION: It therefore appears to the Court sufficiently established that the
Respondent failed in its duty to co-operate fully with the ICTY. This failure
constitutes a violation by the Respondent of its duties as a party to the Dayton
Agreement, and as a Member of the United Nations, and accordingly a violation of its
obligations under Article VI of the Genocide Convention. On this point, the Applicant’s
submissions relating to the violation by the Respondent of Articles I and VI of the
Convention must therefore be upheld.
RESPONSIBILITY FOR BREACH OF THE COURT’S ORDERS INDICATING
PROVISIONAL MEASURES
Having recalled that its “orders on provisional measures under Article 41 [of the Statute]
have binding effect”, the Court finds that it is clear that in respect of the massacres
at Srebrenica in July 1995 the Respondent failed to fulfil its obligation indicated in
paragraph 52 A (1) of the Order of 8 April 1993 and reaffirmed in the Order of
13 September 1993 to “take all measures within its power to prevent commission
of the crime of genocide”. Nor did it comply with the measure indicated in
paragraph 52 A (2) of the Order of 8 April 1993, reaffirmed in the Order of
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13 September 1993, insofar as that measure required it to “ensure that any . . .
organizations and persons which may be subject to its . . . influence . . . do not
commit any acts of genocide”.
THE QUESTION OF REPARATION
In the circumstances of the present case, as the Applicant recognizes, it is inappropriate
to ask the Court to find that the Respondent is under an obligation of restitutio in
integrum. Insofar as restitution is not possible, as the Court stated in the case of the
Gabčíkovo-Nagymaros Project (Hungary/Slovakia), “[i]t is a well established rule of
international law that an injured State is entitled to obtain compensation from the State
which has committed an internationally wrongful act for the damage caused by it”.
ISSUE: The Court, in order to rule on the claim for reparation must ascertain whether,
and to what extent, the injury asserted by the Applicant is the consequence of
wrongful conduct by the Respondent with the consequence that the Respondent
should be required to make reparation for it, in accordance with the principle of
customary international law stated above.
CANNOT CONCLUDE THAT THE GENOCIDE COULD HAVE BEEN PREVENTED IF
THE RESPONDENT COMPLIED WITH ITS OBLIGATION. In this context, the question
whether the genocide at Srebrenica would have taken place even if the Respondent had
attempted to prevent it by employing all means in its possession, becomes directly
relevant. However, the Court clearly cannot conclude from the case as a whole and
with a sufficient degree of certainty that the genocide at Srebrenica would in fact
have been averted if the Respondent had acted in compliance with its legal
obligations. Since the Court cannot regard as proven a causal nexus between the
Respondent’s violation of its obligation of prevention and the genocide at
Srebrenica, financial compensation is not the appropriate form of reparation for
the breach of the obligation to prevent genocide.
REPARATION IN FORM OF SATISFACTION. It is however clear that the Applicant is
entitled to reparation in the form of satisfaction, and this may take the most appropriate
form, as the Applicant itself suggested, of a declaration in the present Judgment that the
Respondent has failed to comply with the obligation imposed by the Convention to
prevent the crime of genocide.
OUTSTANDING OBLIGATION OF RESPONDENT. Turning to the question of the
appropriate reparation for the breach by the Respondent of its obligation under the
Convention to punish acts of genocide, the Court notes that it is satisfied that the
Respondent has outstanding obligations as regards the transfer to the ICTY of persons
accused of genocide, in order to comply with its obligations under Articles I and VI of the
Genocide Convention, in particular in respect of General Ratko Mladić.
NO NEED FOR SYMBOLIC COMPENSATION. The Court does not find it appropriate to
give effect to the Applicant’s request for an order for symbolic compensation in respect of
the non-compliance of the Respondent with the Court’s Order of 8 April 1993 on
provisional measures.
DISPOSITION.
The Court,
(1) by ten votes to five,
27
Rejects the objections contained in the final submissions made by the
Respondent to the effect that the Court has no jurisdiction; and affirms that it has
jurisdiction, on the basis of Article IX of the Convention on the Prevention and
Punishment of the Crime of Genocide, to adjudicate upon the dispute brought
before it on 20 March 1993 by the Republic of Bosnia and Herzegovina;
(2) by thirteen votes to two,
Finds that Serbia has not committed genocide, through its organs or
persons whose acts engage its responsibility under customary international law,
in violation of its obligations under the Convention on the Prevention and
Punishment of the Crime of Genocide;
(3) by thirteen votes to two,
Finds that Serbia has not conspired to commit genocide, nor incited the
commission of genocide, in violation of its obligations under the Convention on
the Prevention and Punishment of the Crime of Genocide;
(4) by eleven votes to four,
Finds that Serbia has not been complicit in genocide, in violation of its
obligations under the Convention on the Prevention and Punishment of the Crime
of Genocide;
(5) by twelve votes to three,
Finds that Serbia has violated the obligation to prevent genocide, under the
Convention on the Prevention and Punishment of the Crime of Genocide, in
respect of the genocide that occurred in Srebrenica in July 1995;
(6) by fourteen votes to one,
Finds that Serbia has violated its obligations under the Convention on the
Prevention and Punishment of the Crime of Genocide by having failed to transfer
Ratko Mladić, indicted for genocide and complicity in genocide, for trial by the
International Criminal Tribunal for the former Yugoslavia, and thus having failed
fully to co-operate with that Tribunal;
(7) by thirteen votes to two,
Finds that Serbia has violated its obligation to comply with the provisional
measures ordered by the Court on 8 April and 13 September 1993 in this case,
inasmuch as it failed to take all measures within its power to prevent genocide in
Srebrenica in July 1995;
(8) by fourteen votes to one,
Decides that Serbia shall immediately take effective steps to ensure full
compliance with its obligation under the Convention on the Prevention and
Punishment of the Crime of Genocide to punish acts of genocide as defined by
Article II of the Convention, or any of the other acts proscribed by Article III of the
Convention, and to transfer individuals accused of genocide or any of those other
acts for trial by the International Criminal Tribunal for the former Yugoslavia, and
to co-operate fully with that Tribunal;
(9) by thirteen votes to two,
Finds that, as regards the breaches by Serbia of the obligations referred to
in subparagraphs (5) and (7) above, the Court’s findings in those paragraphs
constitute appropriate satisfaction, and that the case is not one in which an order
for payment of compensation, or, in respect of the violation referred to in
subparagraph (5), a direction to provide assurances and guarantees of non-
repetition, would be appropriate.
STATUS OF EASTERN CARELIA (Finland vs. Russia)
July 23, 1923
PCIJ, Ser. B., No. 5, 1923.
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THE QUESTION PRESENTED BY THE COUNCIL OF THE LEAGUE OF NATIONS.
To the PCIJ.
In execution of the Resolution of the Council of the League of Nations adopted on April
21st, 1923, and by virtue of the authorization given by this Resolution, the Sec-Gen of
the League of Nations has the honour to present to the PCIJ the request of the Council
that the Court will, in accordance with Article 14 of the Covenant of the League, give an
advisory opinion upon the following question, taking into consideration the information
which the various countries concerned may equally present to the Court:
"Do Articles 10 and 11 of the Treaty of Peace between Finland and Russia,
signed at Dorpat on October 14th, 1920, and the annexed Declaration of the
Russian Delegation regarding the autonomy of Eastern Carelia, constitute
engagements of an international character which place Russia under an
obligation to Finland as to the carrying out of the provisions contained therein?"
The Sec-Gen has further the honour to transmit to the Court the documents relating to
the question, of which a list is attached hereto.
(Signed) Eric Drummond, Secretary-General of the League of Nations. April 27th, 1923.
THE COUNCIL’S RESOLUTION REQUESTING FOR ADVISORY OPINION; OTHER
ADMINSITRATIVE MATTERS.
The Council of the League of Nations on April 21st, 1923, adopted the following
Resolution:
"The Council of the League of Nations requests the Permanent Court of
International Justice to give an advisory opinion on the following question,
taking into consideration the information which the various countries concerned
may equally present to the Court: (refer to question above)
"The Secretary-General is authorized to submit this application to the Court,
together with all the documents relating to the question, to inform the Court of
the action taken by the Council in the matter, to give all necessary assistance in
the examination of the question, and to make arrangements to be represented,
if necessary, at the Court."
On the 27th of the same month the Secretary-General of the League sent to the
Permanent Court of International Justice the following request: (refer to the first
paragraph of this digest)
In conformity with Article 73 of the Rules of Court, notice of the request was given to the
Members of the League of Nations through the Secretary-General of the League, and to
the States mentioned in the Annex to the Covenant. Furthermore, the Registrar of the
Court was directed to notify the Soviet Government of the request. Together with the
request were transmitted the documents, the list of which, as appended to the request
itself, is as follows: (list of documents deleted)
Furthermore, the Court had before it a certain number of documents transmitted to it on
behalf of the Finnish Government, namely: (list also deleted)
The Court likewise had before it a note from the Polish Minister at the Hague, dated June
28th, 1923, and a telegram from the Esthonian Government dated July 3rd, 1923.
The Court also heard, at the request of the Finnish Government, the statements of its
representative, M. Rafael Erich, and received from him a document containing
arguments supplementary to those statements. The Court had informed M. Erich before
hearing his statement that it would be glad to have his views as to whether it had
28
competence to give effect to the request for an advisory opinion upon the question of
Eastern Carelia, submitted to it by the Council of the League of Nations.
The Secretary-General of the League was duly informed of the step taken by the Court in
this respect.
RUSSIA. THROUGH TELEGRAM, INFORMS THE COURT OF ITS NON-
PARTICIPATION.
M. Tchitcherin, the Russian People's Commissary for Foreign Affairs, on the 11th June
despatched to the Court a telegram, which has been read in Court in full, and which is as
follows:
"June eleventh. Reply to your 3055 May 19th. The Russian Government finds it
impossible to take any part in the proceedings, without legal value either in
substance or in form, which the Permanent Court intends to institute as regards
the Carelian question.
Whereas the Workers' Commune of Carelia is an autonomous portion of the
Russian Federation; whereas its autonomy is based on the decree of the Pan-
Russian Central Executive Council, dated June 8th, 1920, which was enacted
before the examination of this question by the Russo-Finnish Peace
Conference at Dorpat; furthermore, whereas the Treaty of Dorpat, in
connection with another matter, refers to the autonomous territory of Carelia as
already existing without imposing any obligation in this respect upon Russia;
whereas the Russian Delegation at Dorpat declared each time that this
question was raised that it was an internal question affecting the Russian
Federation; furthermore, whereas Berzine, the President of the Russian
Delegation, at the meeting of October 14th, 1920, brought the fact that Carelia
was autonomous to the knowledge of the Finnish Delegation solely for their
information; furthermore, whereas in a Note dated December 5th, 1920, and
addressed to the Finnish Charge d'affaires, Tchitcherin, the Commissary of the
People, protested categorically against the action taken by the Finnish
Government in placing the Eastern Carelian question before the League of
Nations, a course which in the view of the Russian Government constituted an
act of hostility to the Russian Federation and an intervention in its domestic
affairs; furthermore, whereas, in an official communication published on June
18th, 1922, the Commissary of the People for Foreign Affairs declared that the
Russian Government absolutely repudiated the claim of the so-called League
of Nations to intervene in the question of the internal situation of Carelia and
stated that any attempt on the part of any power to apply to Russia the article
of the Covenant of the League relating to disputes between one of its Members
and a non-participating State would be regarded by the Russian Government
as an act of hostility to the Russian State: the Russian Government
categorically refuses to take any part in the examination of this question by the
League of Nations or by the Permanent Court. Apart from considerations of
law, according to which the question of the status of Carelia is a matter of
Russian domestic jurisdiction, the Soviet Government is compelled to affirm
that it cannot consider the so-called League of Nations and the Permanent
Court as impartial in this matter, having regard to the fact that the majority of
the Powers belonging to the League of Nations have not yet accorded the
Soviet Government de jure recognition, and several of them refuse even to
enter into de facto relations with it. This situation is further borne out by the fact
that the Council of the League of Nations or the Powers which control it,
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represented by the Council of Ambassadors, have often taken decisions
obviously directed against the most vital interests of the Soviet Republics, and
have done so without even asking the views of the Soviet Government. This
occurred when the annexation of Bessarabia by Roumania was recognized by
them and again when a regime was established at Memel which debarred
Russia from any voice in the question of navigation on the Niemen, or again,
when Eastern Galicia, the great majority of whose population is Ukrainian, was
annexed to Poland. These are the reasons which render it quite impossible for
the Russian Government to take any part in the discussion of the Carelia
question before the Permanent Court. Stop N. 364. Tchitcherin."
EASTERN CARELIA AND THE RELATION BETWEEN RUSSIA AND FINLAND. Eastern
Carelia is a territory of considerable extent, lying between the White Sea and Lake
Onega on the east and Finland on the west. Finland became entirely separated from
Russia in 1917. War broke out between the Soviet Government and Finland, the two
countries being in controversy as to boundaries and as to a great many other questions
which are enumerated in the Treaty of Dorpat (concluded on the 14th October 1920,
came into force on the 1st January, 1921). While the hostilities were going on two of the
Communes of Eastern Carelia, Repola and Porajarvi were placed under the protection of
Finland.
PERTINENT PROVISIONS OF THE TREATY OF DORPAT.
Article 10.
"Finland shall, within a time limit of forty-five days, dating from the entry into force of the
present Treaty, withdraw her troops from the Communes of Repola and Porajarvi. These
Communes shall be re-incorporated in the State of Russia and shall be attached to the
autonomous territory of Eastern Carelia, which is to include the Carelian population of
the Governments of Archangel and Olonetz, and which shall enjoy the national right of
self-determination."
Article 11.
"The Contracting Powers have adopted the following provisions for the benefit of the
local population of the Communes of Repola and Porajarvi, with a view to a more
detailed regulation of the conditions under which the union of these Communes with the
Autonomous Territory of Eastern Carelia referred to in the preceding article is to take
place:
"1. The inhabitants of the Communes shall be accorded a complete amnesty, as
provided in Article 35 of the present Treaty.
"2. The local maintenance of order in the territory of the Communes shall be undertaken
by a militia organised by the local population for a period of two years, dating from the
entry into force of the present Treaty.
"3. The inhabitants of these Communes shall be assured of the enjoyment of all their
movable property situated in the territory of the Communes, also of the right to dispose
and make unrestricted use of the fields which belong to or are cultivated by them and of
all other immovable property in their possession, within the limits of the legislation in
force in the Autonomous Territory of Eastern Carelia.
"4. All the inhabitants of these Communes shall be free, if they so desire, to leave Russia
within a period of one month from the date upon which this Treaty comes into force.
Those persons who leave Russia under these conditions shall be entitled to take with
them all their personal possessions and shall retain, within the limits of the existing laws
in the independent territory of Eastern Carelia, all their rights to any immovable property
which they may leave in the territory of these Communes.
29
"5. Citizens of Finland and Finnish commercial and industrial associations, shall be
permitted, for the duration of one year from the date upon which this Treaty comes
into force, to complete in these Communes the felling of forests to which they are entitled
by contracts signed prior to June 1st, 1920, and to take away the wood felled."
The Treaty contains also a number of provisions upon other matters, e.g. boundaries,
territorial waters, fishing, right of transit, neutralisation of waters and islands, customs,
government property and debts, commercial relations and traffic, railways, posts and
telegraphs.
Article 37 provides for the appointment of a Russo-Finnish Mixed Commission, to see to
the execution of the Treaty and to questions of public and private rights which might arise
under it.
It will be observed that the Articles 10 and 11 describe the territory of Eastern Carelia as
"autonomous," but, except as provided in these articles, there are not in the Treaty itself
any provisions as to the nature and extent of the autonomy.
OTHER DOCUMENTS PRESENTED TO THE COURT.
Certain other documents described as "Declarations inserted in the Proces-Verbal by the
Finnish and Russian Peace Delegations at Dorpat, October 14th, 1920, at the meeting
for the signature of the Treaty of Peace between the Republic of Finland and the
Socialist Federative Republic of the Russian Soviets," were likewise presented to the
Court; one of these documents is as follows:
"Declaration of the Russian Delegation with regard to the autonomy of Eastern Carelia.
"At the general meeting of Peace delegates on October 14th, the following declaration
was inserted in the proces-verbal on behalf of the Russian Delegation:
"The Socialist Federative Republic of the Russian Soviets guarantees the
following rights to the Carelian population of the Governments of Archangel and
Olonetz (Aunus):
"(1) The Carelian population of the Governments of Archangel and
Olonetz (Aunus) shall enjoy the right, of self-determination.
"(2) That part of Eastern Carelia which is inhabited by the said
population shall constitute, so far as its internal affairs are concerned,
an autonomous territory united to Russia on a federal basis.
"(3) The affairs of this district shall be dealt with by national
representatives elected by the local population, and having the right
to levy taxes for the needs of the territory, to issue edicts and
regulations with regard to local needs, and to regulate internal
administration.
"(4) The local native language shall be used in matters of administration,
legislation and public education.
"(5) The autonomous territory of Eastern Carelia shall have the right
to regulate its economic life in accordance with its local needs, and in
accordance with the general economic organization of the Republic.
"(6) In connection with the reorganization of the military defensive
forces of the Russian Republic, there shall be organized in the
autonomous territory of Eastern Carelia a militia system, having as its
object the suppression of the permanent army and the creation in its
place of a national militia for local defence."
PARTIES IN DISPUTE OVER THE DECLARATION.
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It appears from the documents which have been supplied to the Court that the
Government of Finland and the Soviet Government are in acute controversy with regard
to the above-mentioned Declaration. The Finnish Government maintain that it forms part
of the contract between the two countries and that the Treaty was signed on the terms
that the Declaration was as binding as the Treaty itself. The Soviet Government maintain
that the Declaration was not by way of contract, but was only declaratory of an existing
situation and made merely for information.
It appears from the letters and documents before the Court that disputes very early arose
between the Finnish and Russian Governments as to alleged failure to carry out the
Treaty obligations on a great number of points, one of which related to autonomy for
Eastern Carelia. An examination of the diplomatic correspondence between Finland and
Russia, which constitutes the actual record of the controversy between the two countries
concerning Eastern Carelia, clearly demonstrates:
1. That there is not, and never has been, any question between the two
countries as to the legal existence of the Treaty of Dorpat and the obligatory
force of its stipulations.
2. That both parties, while acknowledging the existence and obligatory force of
the Treaty, differ as to the interpretation and legal effect of certain provisions,
particularly Articles 10 and 11 relating to Eastern Carelia.
3. That Finland claims, while Russia denies, that the declaration, which, though
not mentioned in the Treaty is inserted in the protocol of signature concerning
it, constitutes part of the terms.
COUNCIL TAKES ON THE DISPUTE.
Finland asked the League of Nations to take the matter up, and after some discussion,
the Council of the League adopted on January 14th, 1922, the following Resolution:
"The Council of the League of Nations, having heard the statement submitted
by the Finnish Delegation on the situation in Eastern Carelia, contained in a
letter from the Finnish Government, dated November 26th, 1921, and the
statements submitted by the Esthonian, Latvian, Polish and Lithuanian
representatives, is willing to consider the question with a view to arriving at a
satisfactory solution if the two parties concerned agree. The Council is of
opinion that one of the interested States, Member of the League, which is in
diplomatic relations with the Government of Moscow, might ascertain that
Government's intentions in that respect.
"The Council could not but feel satisfaction if one of these States could lend its
good offices as between the two parties, in order to assist in the solution of this
question, in accordance with the high ideals of conciliation and humanity which
animate the League of Nations.
"The Secretary-General is instructed to obtain all necessary information for the
Council."
ESTONIA INVITES RUSSIA TO SUBMIT THE QUESTION FOR THE COUNCIL’S
EXAMINATION; RUSSIA DECLINES.
In accordance with the wish expressed by the Council, the Esthonian Government, which
was in diplomatic relations with the Russian Government, invited the latter to submit the
question of Eastern Carelia to the examination of the Council, "on the basis of Article 17
of the Covenant," a copy of which was annexed to the Esthonian Government's note. In
the same note the Esthonian Government, referring to the Resolution of the Council,
asked the Soviet Government whether it would, on its part, consent to submit the
30
question to the Council in conformity with Article 17 of the Covenant "and to cause itself,
for that purpose, to be represented on the Council."
The Russian Government, by its note of February 2nd, 1922, declined that request.
Eventually, the Finnish Government, having again brought the matter before the Council,
the Council adopted the Resolution set forth at the outset of this Opinion.
OBSERVATIONS OF THE COURT.
The first observation to be made is that the question put to the Court relates to the
obligation alleged to have been incurred by Russia under the Declaration and under
Article 10, that Eastern Carelia should enjoy autonomy, and to the other obligations in
respect of the two Communes of Repola and Porajarvi arising under Articles 10 and 11.
An answer to it one way or the other could have no effect upon any of the other points on
which Finland and Russia are in dispute as to the execution or non-execution of the
Treaty. There is no request for any interpretation of any of the clauses bearing upon the
question of execution.
In the second place, it is necessary to arrive at a clear conception of the exact nature of
the question before the Court. The Court is asked to give an Advisory Opinion upon the
question whether Articles 10 and 11 of the Treaty of Dorpat, and the above-mentioned
Declaration, constitute engagements of an international character which place Russia
under an obligation to Finland.
As already stated, the fact that the Treaty of Dorpat was entered into has never been in
dispute.
CONTENTIONS OF THE PARTIES.
(a) Finland's contentions are:
(1) That Articles 10 and 11 and the Declaration inserted in the protocol relative
thereto constitute executory obligations which Russia is bound to carry out.
(2) That Russia has not carried out those-obligations.
(b) Russia's contentions are:
(1) That Russia considers the question relating to the autonomy of Eastern
Carelia as an internal matter, arid that this was brought to the notice of the
representatives of Finland at the time of the negotiation of the Treaty of Dorpat.
The Declaration was given solely for information.
(2) That the autonomy mentioned under Articles 10 and 11 of the Treaty of
Dorpat and in the Declaration refers only to the existing Workers' Commune of
Carelia, established by Decree of June 7th, 1920, prior to the conclusion of the
Treaty.
COUNCIL RESTATES THE DISPUTE.
A memorandum by the Sec-Gen of the League, dated April 10th, 1923, brings out with
perfect clearness the point really in controversy. It says:
"From this point of view, the question which arises in international law is as
follows: Is there or is there not a contractual obligation between Finland and
Russia with regard to Eastern Carelia, and, if no such obligation exists, do the
requests put forward by Finland constitute acts of interference in the internal
affairs of Russia?"
And again, after stating the Russian position, it says:
"Finland maintains, on the other hand that the text of the Treaty of Dorpat is
completed by the attached Declarations of the Russian Government; that in
virtue of these Declarations the Soviet Government has entered into a
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contractual obligation based, in particular, on the fact that Finland has ceded
afresh to Russia the two Communes of Repola and Porajarvi in exchange for
the rights of autonomy promised by Russia to the Carelians; that the closest
possible connection exists between the Declarations and the provisions of the
Treaty, and indeed that the existence of the Russian Declarations had been a
condition of her signing the Treaty; and that it therefore follows that the Finnish
Government has the same right to insist upon the execution of the provisions of
these Declarations—declarations obtained by it in favour of persons of Finnish
race on the other side of the Finnish frontier—as in the case of the provisions
of the Treaty itself."
WON THE DECLARATION IS PART OF THE OBLIGATIONS ENETERED INTO BY
RUSSIA IS A QUESTION OF FACT.
The question whether this Declaration forms part of the obligations into which Russia
entered, as Finland asserts, or was merely by way of information, as Russia contends,
is, in the very nature of things, a question of fact. The question is, was such an
engagement made? The real question put to the Court largely turns upon the Declaration
as to autonomy inserted in the protocol of signature relative to the Treaty. If that
Declaration forms part of the engagement between Finland and Russia, it would stand
for this purpose on the same footing as the Treaty itself.
FINNISH REP SUGGESTED THAT THE SUBMITTED QUESTION SHOULD BE TAKEN
AS A PRELIMINARY QUESTION; COURT DISAGREES.
It has been suggested by the representative of the Finnish Government that the question
submitted to the Court should be understood as a preliminary question relating to the
nature of the dispute by analogy to Article 15, par. 8 of the Covenant. For the reasons
already stated and to be stated, the Court is unable to agree to this interpretation of the
question submitted by the Council, an interpretation which, moreover, appears to the
Court not to be warranted by the terms of the question.
CONSIDERATIONS IN GIVING THE ADVISORY OPINION.
There has been some discussion as to whether questions for an advisory opinion, if they
relate to matters which form the subject of a pending dispute between nations, should be
put to the Court without the consent of the parties. It is unnecessary in the present case
to deal with this topic.
(1) RUSSIA DID NOT GIVE ITS CONSENT TO SUMBIT THE DISPUTE FOR
RESOLUTION UNDER THE COVENANT.
It follows from the above that the opinion which the Court has been requested to give
bears on an actual dispute between Finland and Russia. As Russia is not a Member of
the League of Nations, the case is one under Article 17 of the Covenant. According to
this article, in the event of a dispute between a Member of the League and a State which
is not a Member of the League, the State not a Member of the League shall be invited to
accept the obligations of membership in the League for the purposes of such dispute,
and, if this invitation is accepted, the provisions of Articles 12 to 16 inclusive shall be
applied with such modifications as may be deemed necessary by the Council. This rule,
moreover, only accepts and applies a principle which is a fundamental principle of
international law, namely, the principle of the independence of States. It is well
established in international law that no State can, without its consent, be compelled to
submit its disputes with other States either to mediation or to arbitration, or to any other
kind of pacific settlement. Such consent can be given once and for all in the form of an
obligation freely undertaken, but it can, on the contrary, also be given in a special case
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apart from any existing obligation. The first alternative applies to the Members of the
League who, having accepted the Covenant, are under the obligation resulting from the
provisions of this pact dealing with the pacific settlement of international disputes. As
concerns States not members of the League, the situation is quite different; they are not
bound by the Covenant. The submission, therefore, of a dispute between them and a
Member of the League for solution according to the methods provided for in the
Covenant, could take place only by virtue of their consent. Such consent, however, has
never been given by Russia. On the contrary, Russia has, on several occasions, clearly
declared that it accepts no intervention by the League of Nations in the dispute with
Finland. The refusals which Russia had already opposed to the steps suggested by the
Council have been renewed upon the receipt by it of the notification of the request for an
advisory opinion. The Court therefore finds it impossible to give its opinion on a dispute
of this kind.
(2) AS RUSSIA REFUSED TO TAKE PART, IT IS DOUBTFUL IF SUFFICIENT
MATERIALS WOULD BE AVAILABLE TO ALLOW ANY JUDICIAL
CONCLUSION ON WHETHER FINLAND AND RUSSIA CONTRACTED ON
THE TERMS OF THE DECLARATION AS TO THE NATURE OF EASTERN
CARELIA’S AUTONOMY.
It appears to the Court that there are other, cogent reasons which render it very
inexpedient that the Court should attempt to deal with the present question. The question
whether Finland and Russia contracted on the terms of the Declaration as to the nature
of the autonomy of Eastern Carelia is really one of fact. To answer it would involve the
duty of ascertaining what evidence might throw light upon the contentions which have
been put forward on this subject by Finland and Russia respectively, and of securing the
attendance of such witnesses as might be necessary. The Court would, of course, be at
a very great disadvantage in such an enquiry, owing to the fact that Russia refuses to
take part in it. It appears now to be very doubtful whether there would be available to the
Court materials sufficient to enable it to arrive at any judicial conclusion upon the
question of fact: What did the parties agree to? The Court does not say that there is an
absolute rule that the request for an advisory opinion may not involve some enquiry as to
facts, but, under ordinary circumstances, it is certainly expedient that the facts upon
which the opinion of the Court is desired should not be in controversy, and it should not
be left to the Court itself to ascertain what they are.
THAT THE REQUEST IS FOR THE COURT TO GIVE AN ADVISORY OPINION AND
NOT TO DECIDE A DISPUTE DOESN’T CHANGE THE ABOVEMENTIONED
CONSIDERATIONS; GIVING THE OPINION IS EQUAL TO DECIDING THE DISPUTE.
The Court is aware of the fact that it is not requested to decide a dispute, but to give an
advisory opinion. This circumstance, however, does not essentially modify the above
considerations. The question put to the Court is not one of abstract law, but concerns
directly the main point of the controversy between Finland and Russia, and can only be
decided by an investigation into the facts underlying the case. Answering the question
would be substantially equivalent to deciding the dispute between the parties. The Court,
being a Court of Justice, cannot, even in giving advisory opinions, depart from the
essential rules guiding their activity as a Court.
It is with regret that the Court, the Russian Government having refused their
concurrence, finds itself unable to pursue the investigation which, as the terms of the
Council's Resolution had foreshadowed, would require the consent and co-operation of
both parties. There are also the other considerations already adverted to in this opinion,
which point to the same conclusion.
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the Convention; otherwise, that State cannot be regarded as being a party to the
The Court cannot regret that the question has been put, as all must now realize that the Convention.
Council has spared no pains in exploring every avenue which might possibly lead to
some solution with a view to settling a dispute between two nations. On Question II:

(a) if a party to the Convention objects to a reservation which it considers to be

RESERVATIONS TO THE CONVENTION ON THE PREVENTION incompatible with the object and purpose of the Convention, it can in fact consider that
AND PUNISHMENT OF THE CRIME OF GENOCIDE the reserving State is not a party to the Convention;

Advisory Opinion of 28 May 1951
The question concerning reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide had been referred for an advisory opinion to the
Court by the General Assembly of the United Nations (G.A. resolution of November 16,
1950) in the following terms:
QUESTIONS REFERRED TO FOR RESOLUTION OF THE COURT:
I. Can the reserving State be regarded as being a party to the Convention while still
maintaining its reservation if the reservation is objected to by one or more of the parties
to the Convention but not by others?
II. If the answer to question I is in the affirmative, what is the effect of the reservation as
between the reserving State and:
(b) if, on the other hand, a party accept the reservation as being compatible with the
object and purpose of the Convention, it can in fact consider that the reserving State is a
party to the Convention;
On Question III:
(a) an objection to a reservation made by a signatory State which has not yet ratified the
Convention can have the legal effect indicated in the reply to Question I only upon
ratification. Until that moment it merely serves as a notice to the other State of the
eventual attitude of the signatory State;
(b) an objection to a reservation made by a State which is entitled to sign or accede but
which has not yet done so is without legal effect.
THE COURT'S OPINION

(a) The parties which object to the reservation? A. The question regarding the effect of a reservation on the treaty relations of a state
cannot be answered in absolute terms but would be dependent on the circumstances of
every case.
(b) Those which accept it?

III. What would be the legal effect as regards the answer to question I if an objection to a
reservation is made:
(a) By a signatory which has not yet ratified?
(b) By a State entitled to sign or accede but which has not yet done so?"
SUMMARY OF THE COURT'S OPINION
By 7 votes to 5 the Court gave the following answers to the questions referred to:
On Question I:
a State which has made and maintained a reservation which has been objected to by
one or more of the parties to the Convention but not by others, can be regarded as being
a party to the Convention if the reservation is compatible with the object and purpose of
The first question refers to whether a State which has made a reservation can, while
maintaining it, be regarded as a party to the Convention on Genocide, when some of the
parties object to the reservation. In its treaty relations, a State cannot be bound without
its consent. A reservation can be effected only with its agreement. On the other hand, it is
a recognised principle that a multilateral Convention is the result of an agreement freely
concluded. To this principle was linked the notion of integrity of the Convention as
adopted, a notion which, in its traditional concept, involved the proposition that no
reservation was valid unless it was accepted by all contracting parties. This concept
retains undisputed value as a principle, but as regards the Genocide Convention, its
application is made more flexible by a variety of circumstances among which may be
noted the universal character of the United Nations under whose auspices the
Convention was concluded and the very wide degree of participation which the
Convention itself has envisaged. This participation in conventions of this type has
already given rise to greater flexibility in practice. More general resorts to reservations,
very great allowance made to tacit assent to reservations, the admission of the State
which has made the reservation as a party to the Convention in relation to the States
which have accepted it, all these factors are manifestations of a new need for flexibility in
the operation of multilateral conventions. Moreover, the Convention on Genocide,
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although adopted unanimously, is nevertheless the result of a series of majority
votes - which may make it necessary for certain States to make reservations.
In the absence of an article in the Convention providing for reservations, one cannot infer
that they are prohibited. In the absence of any express provisions on the subject, to
determine the possibility of making reservations as well as their effects, one must
consider their character, their purpose, their provisions, their mode of preparation and
adoption. The preparation of the Convention on Genocide shows that an undertaking
was reached within the General Assembly on the faculty to make reservations and that it
is permitted to conclude therefrom that States, becoming parties to the Convention, gave
their assent thereto.
What is the character of the reservations which may be made and the objections which
may be raised thereto? The solution must be found in the special characteristics of the
Convention on Genocide. The principles underlying the Convention are recognised by
civilised nations as binding on States even without any conventional obligation. It was
intended that the Convention would be universal in scope. Its purpose is purely
humanitarian and civilising. The contracting States do not have any individual
advantages or disadvantages nor interests of their own, but merely a common interest.
This leads to the conclusion that the object and purpose of the Convention imply that it
was the intention of the General Assembly and of the States which adopted it, that as
many States as possible should participate. This purpose would be defeated if an
objection to a minor reservation should produce complete exclusion from the
Convention. On the other hand, the contracting parties could not have intended to
sacrifice the very object of the Convention in favour of a vague desire to secure as many
participants as possible. It follows that the compatibility of the reservation and the object
and the purpose of the Convention is the criterion to determine the attitude of the State
which makes the reservation and of the State which objects. Consequently, question I,
on account of its abstract character, cannot be given an absolute answer. The appraisal
of a reservation and the effect of objections depend upon the circumstances of each
individual case.
B. The other states may treat a reserving state as either a party to the convention or not,
depending on their appraisal of the reservation and such reservation's compatibility with
the object and purpose of the convention.
The Court then examined question II by which it was requested to say what was the
effect of a reservation as between the reserving State and the parties which object to it
and those which accept it. The same considerations apply. No State can be bound by a
reservation to which it has not consented, and therefore each State, on the basis of its
individual appraisals of the reservations, within the limits of the criterion of the object and
purpose stated above, will or will not consider the reserving State to be a party to the
Convention. In the ordinary course of events, assent will only affect the relationship
between the two States. It might aim, however, at the complete exclusion from the
Convention in a case where it was expressed by the adoption of a position on the
jurisdictional plane: certain parties might consider the assent as incompatible with the
purpose of the Convention, and might wish to settle the dispute either by special
agreement or by the procedure laid down in the Convention itself.
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The disadvantages which result from this possible divergence of views are real. They
could have been remedied by an article on reservations. They are mitigated by the
common duty of the contracting States to be guided in their judgment by the compatibility
or incompatibility of the reservation with the object and purpose of the Convention. It
must clearly be assumed that the contracting States are desirous of preserving intact at
least what is essential to the object of the Convention.
C. The objections made do not have immediate legal effect.
The Court finally turned to question III concerning the effect of an objection made by a
State entitled to sign and ratify but which had not yet done so, or by a State which has
signed but has not yet ratified. In the former case, it would be inconceivable that a State
possessing no rights under the Convention could exclude another State. The case of the
signatory States is more favourable. They have taken certain steps necessary for the
exercise of the right of being a party. This provisional status confers upon them a right to
formulate as a precautionary measure objections which have themselves a provisional
character. If signature is followed by ratification, the objection becomes final. Otherwise,
it disappears. Therefore, the objection does not have an immediate legal effect but
expresses and proclaims the attitude of each signatory State on becoming a party.
CONDITIONS OF ADMISSION OF A STATE TO MEMBERSHIP
IN THE UNITED NATIONS (ARTICLE 4 OF CHARTER)
Advisory Opinion of 28 May 1948
The General Assembly of the United Nations asked the Court to give an advisory opinion
on the question concerning the conditions of admission of a State to membership in the
United Nations (Article 4 of the Charter).
QUESTION REFERRED TO FOR RESOLUTION OF THE COURT
"Is a Member of the United Nations which is called upon, in virtue of Article 4 1 of the
Charter, to pronounce itself by its vote, either in the Security Council or in the General
Assembly, on the admission of a State to membership in the United Nations, juridically
entitled to make its consent to the admission dependent on conditions not expressly
provided by paragraph I of the said Article? In particular, can such a Member, while it
recognizes the conditions set forth in that provision to be fulfilled by the State concerned,
subject its affirmative vote to the additional condition that other States be admitted to
membership in the United Nations together with that State?"
The Court answered this question in the negative by nine votes to six.
THE OPINION OF THE COURT
PRELIMINARY OBSERVATIONS OF THE COURT: the question does not refer to the
actual vote, but the statements made by a member concerning the vote that it proposes
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to give; the question in this advisory opinion is legal in character as it concerns an
interpretation of the provisions of the UN charter, and is not concerned with any political
matter.
1. Although the Members are bound to conform to the requirements of Article 4 in giving
their votes, the question does not relate to the actual vote, the reasons for which are a
matter of individual judgment and are clearly subject to no control, but to the statements
made by a Member concerning the vote it proposes to give. The Court is not called upon
to define the meaning and scope of the conditions in Article 4 of the Charter, on which
admission is made dependent. It must merely state whether these conditions are
exhaustive. If they are, a Member is not legally entitled to make admission depend on
conditions not expressly provided in the article. The meaning of a treaty provision has
thus to be determined, which is a problem of interpretation.
2. It was nevertheless contended that the question was not legal, but political. The Court
was unable to attribute a political character to a request which, framed in abstract terms,
invites it to undertake an essentially judicial task by entrusting it with the interpretation of
a treaty provision. It is not concerned with the motives which may have inspired the
request, nor has it to deal with the views expressed in the Security Council on the
various cases with which the Council dealt.Consequently, the Court holds itself to be
competent even to interpret Article 4 of the Charter, for nowhere is any provision to be
found forbidding it to exercise in regard to this clause in a multilateral treaty, an
interpretative function which falls within the normal exercise of its judicial powers.
FIRST POINT: the conditions stated in Article 4 are exhaustive; they are not only the
necessary but also the sufficient conditions for membership; if these requirements can
be added upon by any member-state, then the significance of the provision would be
lost.
3. The Court then analyses Article 4, paragraph 1, of the Charter. The conditions therein
enumerated are five: a candidate must be (1) a State; (2) peace-loving; (3) must accept
the obligations of the Charter; (4) must be able to carry out these obligations; (5) must be
willing to do so. All these conditions are subject to the judgment of the Organization, i.e.,
of the Security Council and of the General Assembly and, in the last resort, of the
Members of the Organization. As the question relates, not to the vote, but to the reasons
which a Member gives before voting, it is concerned with the individual attitude of each
Member called upon to pronounce itself on the question of admission.
4. Are these conditions exhaustive? The English and French texts of the provision have
the same meaning: to establish a legal rule which, while it fixes the conditions of
admission, determines also the reasons for which admission may be refused. The term
"Membership in the United Nations is open to all other peace-loving States" indicates
that States which fulfil the conditions stated have the qualifications requisite for
admission. The provision would lose its significance if other conditions could be
demanded. These conditions are exhaustive, and are not merely stated by way of
information or example. They are not merely the necessary conditions, but also the
conditions which suffice.
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SECOND POINT: if the framers of the Charter intended to reserve for the member-states
an unlimited power to invoke extraneous prerequisites for admission of an applicant-
state, they would have expressed such intention in clear terms; as it were, the provisions
of Article 4, taken together with Article 2, do not evince any intent to subject the
admission of a state to any demand made by a member state outside of those
prerequisites already laid down.
5. It was argued that these conditions represented an indispensable minimum in the
sense that political considerations could be superimposed on them, and form an obstacle
to admission. This interpretation is inconsistent with paragraph 2 of the Article, which
provides for "the admission of any such State." It would lead to conferring on Members
an indefinite and practically unlimited power to impose new conditions; such a power
could not be reconciled with the character of a rule which establishes a close connection
between membership and the observance of the principles and obligations of the
Charter, and thus clearly constitutes a legal regulation of the question of admission. If the
authors of the Charter had meant to leave Members free to import into the application of
this provision considerations extraneous to the principles and obligations of the Charter,
they would undoubtedly have adopted a different wording. The Court considers the
provision sufficiently clear, consequently, it follows the constant practice of the
Permanent Court of International Justice and holds that there is no occasion to resort to
preparatory work to interpret its meaning. Moreover, the interpretation given by the Court
had already been adopted by the Security Council, as is shown in Article 60 of the
Council's Rules of Procedure.
THIRD POINT: the exhaustive character of Article 4 does not preclude the resort to
extraneous factors per se; however, extraneous factors may be resorted to ONLY FOR
THE PURPOSE of verifying the existence of the prerequisite conditions as laid down in
Article 4.
6. It does not, however, follow from the exhaustive character of Article 4 that an
appreciation is precluded of such circumstances of fact as would enable the existence of
the requisite conditions to be verified. The Article does not forbid the taking into account
of any factor which it is possible reasonably and in good faith to connect with the
conditions laid down. The taking into account of such factors is implied in the very wide
and elastic nature of the conditions. No relevant political factor, that is to say, none
connected with the conditions of admission, is excluded.
7. The conditions in Article 4 are exhaustive and no argument to the contrary can be
drawn from paragraph 2 of the Article which is only concerned with the procedure for
admission. Nor can an argument be drawn from the political character of the organs of
the United Nations dealing with admission. For this character cannot release them from
observance of the treaty provisions by which they are governed, when these provisions
constitute limitations on their power, this shows that there is no conflict between the
functions of the political organs and the exhaustive character of the prescribed
conditions.
FOURTH POINT: assent to the admission of another state cannot be made to depend on
the simultaneous admission of other states; this would constitute another extraneous
requisite that cannot be subsumed under the conditions set forth in Article 4 for
admission.
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8. The Court then passes to the second part of the question, namely, whether a State,
while it recognizes that the conditions set forth in Article 4 are fulfilled by a candidate,
can subordinate its affirmative vote to the simultaneous admission of other States.
Judged on the basis of the rule which the Court adopts in its interpretation of Article 4,
such a demand constitutes a new condition; for it is entirely unconnected with those
prescribed in Article 4. It is also in an entirely different category, since it makes admission
dependent not on the conditions required of applicants, but on extraneous considerations
concerning other States. It would, moreover, prevent each application for admission from
being examined and voted on separately and on its own merits. This would be contrary
to the letter and spirit of the Charter.

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