Was Yugoslavia a Member of the United Nations in the Years 1992-2000? Author(s): Yehuda Z.

Blum Reviewed work(s): Source: The American Journal of International Law, Vol. 101, No. 4 (Oct., 2007), pp. 800-818 Published by: American Society of International Law Stable URL: http://www.jstor.org/stable/40006319 . Accessed: 10/04/2012 00:45
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NOTES AND COMMENTS Was Yugoslavia a Member of the United Nations in the Years 1992-2000?
Z.Blum* By Yehuda I. Background The judgmentdeliveredby the International Court of Justiceon February 26, 2007, in the Crime Genocide the Convention on the Prevention and Punishment (Bosnia Application of of of the questionwhether andHerzegovina v. Serbia andMontenegro),1 hasonce againhighlighted wasa member of the UnitedNationsin theyears1992-2000 - a questionthathas Yugoslavia2 bedeviledthe United Nations scene for the past fifteenyearsand, as will be demonstrated Courtof below,hasbroughtforthsome contradictory by the International pronouncements In this matter rests with the UN the blame for the confusion on considerable truth, Justice. CouncilandGeneral whichin 1992 set in motionthe chainof eventsthat Security Assembly, in the followingpages. createdthe politicaland legalhiatusthatwill be analyzed In theearly1990s, the Socialist of Federal (SFRY) (afoundingmember Republic Yugoslavia their of theUnitedNations)started to disintegrate: fourof itsconstituent republics proclaimed Croatia and Slovenia Macedonia 1991), (in September (inJune1991), namely, independence, were and Bosnia-Herzegovina (in April 1992). Croatia,Slovenia,and Bosnia-Herzegovina inApril1993.3The two remainto theUnitedNationsin May 1992, andMacedonia admitted - Serbia and45 perandMontenegro, for40 percentof the territory ing republics accounting - claimedthat the "Federal of cent of the populationof the SFRY Republic Yugoslavia"
* Hersch The HebrewUniversity of Jerusalem. Professor of International Law,Emeritus, Lauterpacht 1 of the Conventionon the Prevention of the Crimeof Genocide(Bosn.& Herz. and Punishment Application v. Serb.& Mont.),Judgment(Int'lCt. JusticeFeb.26, 2007) [hereinafter . The GenocideConventionJudgment] documentsof the Courtreferred to in this Note areavailable at the ICJWeb site, <http://www.icj-cij.org>. 2 The term will henceforth be usedto designate not only the "Socialist Federal Republicof Yugo"Yugoslavia" slavia" in theearly1990s, butalsothe "Federal whichexistedpriorto thecountry's (SFRY), Republic disintegration of Yugoslavia" of the years1992-2000 (FRY-I),and the stateof the samenameadmittedto the United Nations on November1, 2000 (FRY-II). At the United Nations, FRY-Iwasusuallyreferred to at the time as the "Federal of Yugoslavia FRY-II itsnameon February andMontenegro)." 4, 2003, to "Ser(Serbia Republic officially changed biaandMontenegro," of Serbia." secession on June3, 2006, becamethe "Republic and,on thelatter's Montenegro was admittedto the United Nations on June 28, 2006, by General AssemblyResolution60/264. 3 Macedonia's to theUnitedNationswasdelayed admission bytheoppositionof Greeceto thenameof thecounto thatof thenorthern Eventually, try,whichis identical regionof Greeceandis claimedby it on historical grounds. with the surMacedonia wasadmittedunderthe "provisional" name"Former Republicof Macedonia," Yugoslav of realistic whichhassurvived to the presentday,thusconfirming once againthe correctness "FYROM," acronym the maxim"rienne dureque le provisoire."

para.that the questionof wereof the view. responding requestby Bosnia-Herzegovina Croatiato clarifythe legalsitin thewakeof the adoptionby the General of Resolution uationcreated 47/ 1. adoptedtheserecommendations by the Security bly.UN Doc. 1992). para.777.2007] AND COMMENTS NOTES 80 1 of the Socialist was"continuing the state.forits admission laid eralRepublicof Yugoslavia" would haveto provethat it was "apeace-loving" state. 1992). 29. 1 (Nov. Those countries United alia.S. it emerges representing Court lie at the root of the gravelegaldifficultiesthathavealsoconfrontedthe International of Justiceon this mattereversince.neitherthe UN legalcounselin his legalopinionof September 29.4." In Opinion No. He pointedlyaddedthat. 1992).3 (1992). the established of the Organization. noted that the claimof FRY-I"tocontinuing] automatically" In Resaccepted. andof General 47/1 of the followingday. thatthesehybridresolutions.whichwastaken. 1992. 6 SC Res.In its Opinion No.one of the requirements down in Article4(2) of the Charter for the admissionof new members. stated Assembly in FRY-I not thatthe only practical of that was that could resolution participate consequence 4 UN Doc.7 The Counciltherefore then repeated language in of the General not the work that FRY-I should mendedto the General Assembly participate Assemin the UnitedNations.1 (May7.They apparently opinion the relevant FRY-I's UN membership withinthe framework of the UN Charter. 1992)." process on the territory of the former In its OpinionNo. para.757. 1992). 7 SC Res.. 9 of the samedate. A/46/ Fedto the UnitedNations. the under-secretary-general to a and Nations. A different estabforPeacein Yugoslavia takenasearly as 199 1 bytheArbitration Commission of theInternational Conference lishedby the European Community.in (let aloneexpel)FRY-Ifrom the Organization. practice 5 See to this effect the statementof U.rightly. 1992).and to suggestthat "Serbia (likethe otherrepublics SFRY)shouldseekUN admissionas a new member. 1992. (Sept. A/46/915.in Resolution Councilbut. at 1524. 31 ILM 1494. 8 (July4."6 ship of the formerSFRYin the United Nations "hasnot been generally that olution777 of September 25. is now completeand that the SFRYno longerexists.it addedthat "[n]ewstateshavebeencreated SFRYandreplaced it. While all theseopinions Assemweregivenpriorto theadoptionof Security CouncilResolution 777 of September 25. AnnexII. significantly. . members the States.the RussianFederation any attemptto suspend On May 30.on the followingday.5 wereopposedto this position.25. In retrospect. Declaration viewwas (Apr. ManyotherUN members. 1991)."theso-called PV. All aresuccessor statesto the formerSFRY.The General andthatit shouldapplyformembership Assembly 47/ 1. pmbl. the memberResolution 757.inter however.1 992.by (prominent amongthemtwo permanent of the Security and China)rejected Council.4 Republicof Yugoslavia."and recomthe just-quoted of its Resolution757.in the author's relyon thoseopinions.responsibility forwhichwasgenerally laidat the doorstepof the Serbianin Europeand of FRY-I.promptedvariousgovernments dominatedgovernment (primarily of FRY-Iand its rightto a seatat the United NorthAmerica) to questionthe verylegitimacy of the former andMontenegro" Nations.. pmbl. para. at 1523. nor the International related Courtof Justicein its various pronouncements. and mustbe resolved resolutions.27.at 22 (May29. Ambassador Perkinsin the UN GeneralAssembly.international (FRY-I) legalandpoliticalpersonality Federal and notifiedthe UN secretary-general accordingly. a politicalcompromise. (May30. 1497. and legal counsel of the United On September29.1." in various atthewidespread atrocities The growing international revulsion parts perpetrated of the formerSFRY. 1992. the Councilwent one stepfurther by declaring "the of has stateformerly knownas the SocialistFederal Republic Yugoslavia ceasedto exist. it statedthatthe SFRY"isin the processof dissolution." Id. 1992. Yugoslavia. did not repeatthe Council'sstatementthat the formerSFRYhad ceasedto exist. bly Resolution sawfit to seeinfranote 8. the SecurityCouncil. of dissolutionof the SFRY. at 4.86. it concludedthat "the Id.

Application forRevision] ." A/48/847.for only six dayspriorto the adoptionof this resAssembly fortheyears Resolution of assessment of Macedonia olution. 1994). The Secretariat's membership in the reportof the secretary-general of January 7. For a survey(and criticism)of the South Africancase."8 Clearly.30. Yugoslavia). 45-48 (Feb. its seat and nameplate remained as before (though the FRY-Irepresentativeswere not allowed to sit behind the sign "Yugoslavia"). but could participate in the work of all other UN organs. 2000.UNMembership orBreak' '86AJIL 830 (1992).48/223." not participate Somemonthslater. [and] in 8 Letter 1992 fromthe Under-Secretary-General. therates of assessment of FRY-I's to theUnitedNationsin theyears1992-2000.16 (Jan. to end the de factoworkingstatusof Serbiaand the GA Res. para. while its annual contributions to the UN budget were included in the scales of assessmentsof UN members approved by the Assembly?In the author's opinion. If Yugoslaviahad been neither suspended nor expelled. . whereit is pointedout thatthe meaningof the phrase"to end thede factoworkingstatusof Serbia andthat andMontenegro" hadnot beendefinedby the General Assembly the "Secretariat is not in a positionto takeactionwith regard to questionsrelatingto the statusof MemberStates in the absenceof the appropriate UN Doc. 248 (1993).it hadpassed 48/223. Montenegro. the General in Resolution in Security CouncilResolution821 of the pre47/229. 1993. By a letter of October 27.Surprisingly ironically. It shouldbe noted that FRY-I's exclusionfromparticipation in the workof the General Assembly(andsubsewas explained stateof the SFRY quentlyin the workof ECOSOC) by the factthat its claimto be the continuator "has not beengenerally in the General This differsfromthe exclusion of SouthAfrica fromparticipation accepted. FRY-Iindeed remained a full member of the United Nations and therewas no valid legalreason for the measurestaken againstit by the GeneralAssembly under Resolutions 47/ 1 and 47/229.decidedthatFRY-I"shall in the workof the EconomicandSocialCouncil [ECOSOC] .the General went evenfurther Resolution 47/1 andurging"Member Assembly by reaffirming Statesand the Secretariat infulfillingthespiritof thatresolution. Bosn. Objections (Yugo. following the ouster of Slobodan Milosevic and his regime in September 2000. 9 The anomalous situation concerning Yugoslavia'sstatus within the United Nations came to an end when. 1993) (emphasis and rather added). Consequently. 1994. he stressedthat the resolution neither suspended nor terminated the membership of "Yugoslavia" in the United Nations.Yehuda Continuity ofthe"New" Yugoslavia: Z.Reply to Correspondents' 87 AJIL240.Addressed to the PermanentRepresentatives of BosniaandHerzegovina andCroatia to theUnitedNations. 7. (Bosniaand Herzegovina Preliminary of the Crimeof Genocide v. J S«? Yehuda Z. paras. 22-23. 29. 2003 ICJREP. actingupon the recommendation Assembly. Blum. 10 1:800 the work of the General Assembly and its subsidiary organs. . para. seetheCourt's contributions judgmentinApplication for Revision ofthefudgmentoflljuly 1996 in theCaseConcerning Application oftheConvention on thePrevention and Punishment v. .GA Res. "as it is the last flag of Yugoslavia used by the Secretariat. At UN headquarters.802 THEAMERICAN OFINTERNATIONAL LAW JOURNAL [Vol.3) [hereinafter 7. 1992) [hereinafter LegalCounsel'sLetter]. decisionsbeing takenby the competentorgansof the Organization. Blum. Eroding the United Nations Charter 43-55 (1993).48/88. A/47/485.-Herz. annex (Sept.4 (Dec. in whichit decidedthatthe rates forthoseyears. viousday. see Yehuda Z.here was an attempt to squarethe circle and to make some sense of a patently absurd situation.19 (Dec. Blum. para." General did not applythis recommendation to itself. Kostunica applied for Yugoslavia'sadmission to the United Nations "[i]n the wake of fundamental democratic changes that took place in the Federal Republic of Yugoslavia . Vojislav Kostunica ascended to the presidency of Yugoslavia. For Agora:UN Membership of theFormer Yugoslavia. 23." workfrom 1974 until the end of the apartheid era.the flag of the former SFRY (with the five-pointed red star of the Communist era in the middle) would continue to fly. 1993 and 1994 shouldbe deductedfromthoseof "Yugoslavia" frustration at the confusioncreated overFRY-I's statusis alsowell reflected 1993).It might be addedhere that on May 5. or in conferences and meetings convened by it. Yugoslavmissions and offices could continue to function and could receive and circulate official documents. why was it told to seek admission as a new member?And what could justify a resolution barringit from participation in the General Assembly's work.UN Doc.). Dated29 September the LegalCounsel. At the same time.whichwasbroughtaboutthroughthe rejection Assembly's by the GeneralAssemblyof South Africa'scredentials.

apparently basing itself on the legal counsel's letter referredto above. 595 (July 11) [hereinafter Objections. for different reasons.). 30." SeeLegalCounsel'sLetter. (Nov. delivered on July 11. 3 UnderArticle "All to theStatute Members of theUnitedNationsareipso 93(1) of theUN Charter. 2000) (emphasis added). as the applicant.& Herz. which had been drawn into considering this hiatus on two occasions. Bosnia-Herzegovina. then admitted Yugoslavia (FRY-II) to the Organization by acclamation.2003 Judgment Following its admission to the United Nations on November 1. factoparties of the International Article35(1) of the Statuteprovidesthat "[t]heCourtshallbe open to the Courtof Justice. FRY-Irelinquished the fourthof its originalsevenpreliminary objectionsto the Court'sjurisdiction. 2000. respectively.14proceeded on the assumption that FRY-Iwas indeed a member of the United Nations afterSeptember 1992. the applicahaving both receivedthe recommendation of the Security Council and considered tion.11 While this development prospectivelyregularized Yugoslavia's status within the United Nations as a new member of the Organization. upon the Security Council's recommendation. in Resolution 55/12. 2000. FRY-I considered itself the continuatorstate of the formerSFRY (asdistinct from one of its successor states) and.un. it still did not clarify Yugoslavia's status retroactivelyfor the period 1992-2000. 200 1. in 1993 and 1999.htm>.2007] NOTES AND COMMENTS 803 "l0 the resolution that light of the implementationof the SecurityCouncil resolution777 (1992) had stated that the SFRY no longer existed and that FRY-I should apply for UN membership. the Council made reference to Kostunica's application and then recommended that the GeneralAssembly admit the FederalRepublic of Yugoslavia to the United Nations. claiming that its admission as a new member was in the nature of a "new fact" within the meaning of 10UN Doc. In Resolution 1326 of October 31.Preliminary 1996Judgment]. obviously did not wish to challenge the Court's jurisdiction. and rejecting all six of FRY-I'spreliminaryobjections to its jurisdiction. Bosnia-Herzegovina instituted proceedings againstFRY-Iin the Genocide Conventioncase. 55/12 at <http://www. continued to plague the International Court of Justice. 2000). 1993." statespartiesto the presentStatute. . A/55/528-S/2000/1043. 1996. a party to the Court's Statute. a member of the United Nations and.12the Court did not have to address whether Yugoslaviawas a member of the United Nations at the time. available of the Conventionon the Prevention of the Crimeof Genocide(Bosn.13The Court. Application for Revision. FRY-II requested.supranote 8. 11GARes. annex (Oct. had not raised the issue. Yugo. 1. a revision of the 1996 judgment in the GenocideConventioncase. In its firstjudgment in the case. the situation created in 1992 by the General Assembly.org/Depts/dhl/resguide/r55. For its part. With the exception of its judgment on the preliminary objections in the Genocide Conventioncase. all the remaining judgments in these cases were delivered after FRY-II's admission to the United Nations. as such. by virtue of that membership. as described above. since the parties. when proceedings were brought before it in the Genocide Conventioncase and the Legalityof Use of Forcecases. In fact. on April 24. The Cases Genocide Convention (PreliminaryObjections). proceedings.1996 ICJREP. The following day the General Assembly. II.1996 Judgment On March 20. andPunishment Application In the courseof the v.

Judge Francisco Rezek.75. in his "Declaration"(which in fact amounted to a dissenting opinion). based its jurisdiction on the assumption that Yugoslaviawas at that time a Member of the United Nations. The admission of the FRY to the United Nations as a new Member clears ambiguities and sheds a different light on the issue of the membership of the FRY in the United Nations. . 48-49 (Dimitrijevic.at 12. at 45-46. FRY-I's for the purposeof suingit in the InterUN membership position.J. Application 16Id. para. S. Id. have clearly demonstrated that the assumption made by the Court was wrong. dec). could not at that time claim to have been a Member of the United Nations. GeneralAssembly resolution 55/12 of 1 November 2000 cannot have changed retroactively the sui generis position which the FRY found itself in vis-a-vis the United Nations over the period 1992 to 2000.which affirmed Bosnia-Herzegovina's nationalCourtof Justicebut deniedit outsidethe Courtat all otherUnited Nationsandotherinternational fora. 17Id. as a result of the said admission. . Id. Rezek. at 51.16..Id. [and] was not a Stateparty to the [Courts] Statute . This fact constitutes 'the new fact' for the purposes of Article 61 of the Statute.3 (Rezek.. .70-71.JudgeVereshchetin para. an entity comprising part of the former Socialist [Federal] Republic of Yugoslavia. . at 31. at 50. and thus justified such a revision. FRY-II argued that. dis.Judges whichwassupported votedagainst thejudgment's Vereshchetin. 18Id. thus terminating the situation created by General Assembly resolution 47/ 1. .. [W]hat remained unknown in July 1996 was if and when the FRY would apply for membership in the United Nations and if and when that application would be accepted.804 THEAMERICAN LAW OFINTERNATIONAL JOURNAL [Vol. by ten judges."18Judge Rezek then added that 15 for Revision. Subsequent events . According the FRY had to submit a request for admission to the United Nations as had been done by the other Republics composing the SFRY."17 Likewise. . More specifically. finding that FRY-II's admission to the United Nations was not a "new fact" that was "revealed" after delivery of the 1996 judgment. paras. [and] a party to the Statute. and it has become an unequivocal fact that the FRY did not continue thepersonalityof the SFRY. at 63-64. expressedthe view that "the entity over which the Court affirmed its jurisdiction in the Judgment of 1 1 July 1996. Judge V. [and] in the Statute . Vereshchetin concluded that "the Court. .andDimitrijevic senting) dispositif. in 1996. the in to it was well-known that 1996 Court. para. Yugoslav alsodissentedfromthe Court'sjudgment. . 2000. also pointed to the inconsistency of J. at 32. 2003 ICJREP. para. dissenting). andthushadno accessto the Courtin 1996. . . J. however. 10 1:800 Article 61 of the Court's Statute.8 (emphasis added).. . "Yugoslavia was not a Member of the United Nations in 1996.. .supranote 9.was not a memberof the United Nations before November1." he emphasized. paras. was not a Memberof the United Nations before1 November2000. para.statingthat judgead hocDimitrijevic FRY-Ihad at no time been a continuator of the formerSFRY.15 The Court rejected the application for revision. or its position in relation to the Statute of the Court 16 In his dissenting opinion.28 (Vereshchetin.. dilemmas concerning its standing [in the United Nations] have been resolved. The fact is.

para. FRY-Iinstitutedproceedings againsta groupof NATO states.It is not July 1996.France. 22The Courtdelivered will but virtually hereand subsequently identical.Provisional Measures. para. Spain)."20 Bosnia-Herzegovina of Use of Force.46. Spain.74.73."23 The Courtthennotedthat"itis. in the Genocide Judge Convention case. paragraph mon groundbetweenthe Parties thatSerbia hasnot claimedto havebecome andMontenegro in the UnitedNations.whetherSerbia andMontenegro a partyto the Court'sStatutewhen the instantproceedings wereinstitutedin April1999 was for if it werenot sucha party.and the United States. FRY-I's statusat the United Nationsin the para. the Court Portugal.29 (June 2). Belg."itbecameclearthat the suigeneris positionof the 19Id.essenin at for the bombardment of its connection with the Kosovocrisisprevailing tially territory.the applications against Belgium.).the Courtwouldnot be open to it underArticle "fundamental. para. U. 21FRY-I NATO members filedten separate Germany. one of the newestMembersof the United Nations.916. 279 (Dec.."24 a partyto the Statuteon anyotherbasisthanby membership Referto "the the United rather confused and state of affairs that obtained within ring complex in the Nationssurrounding the issueof the legalstatusof the Federal Republicof Yugoslavia FRY-II's the the Court that with admission found 1992-2000. para. 24Id. 2004." Id.Preliminary of UseofForce Objections. Italy.v. v.judgments. 1.Sincehe hadalready opined in the 2003 Application was not the Revision that FRY-II new ("the Yugoslavia") for judgment in 1996. para. removed theapplications fromthelist.19 In alllikelihood.& Mont. 15).on thegroundthat"itmanifestly lack[ed] SpainandtheUnitedStates against of Use of Force(Yugo. 2007. andhasalways been.). (Serb." Legality (June 2).1999 ICJ REP.22 of UseofForce in Courtwascalledupon once againto address the questionof Yugoslavia's UN membership theyears1992-2000. . ProvisionalMeasures. the new Yugoslavia a party to the disputesubmitted to the Court by Bosnia and Herzegovina.52. in the Court's2007 judgmentin the case. para. is not the entity consideredby the Court to be the Respondentin the Judgmentof 11 does not have standing to seekrevision.35 jurisdiction. 25Id. 773. 925.it (a termusedby the Courtas earlyas 2003 in theApplication years1992-2000 as "sui generis" for Revision wasusinglanguage in whichthe Federal of Yugoslavia of theamorphous stateof affairs "merely descriptive Republic found itselfduringthis period. 1999. of the Statute.com35. According wasorwasnot to the Court. at 52.Reference eightseparate.S. in the Legality cases.761.By ordersof June2.Canada.2004 judgments Legality On April29.It will be for the of the timewhetherthatdisputeis extantin the absence Courtto decideat the appropriate Respondent. at 308. 23Id at 299. Netherlands. In its judgments the the time. he would doubtlesshavefound that the disputesubmittedto the Court by in 1993 was no longerextant"inthe absenceof the Respondent.the United Kingdom.1999 ICJREP."theappropriate time"forsucha determination wouldhavebeen.The Courtpointedout that.atthelatest in JudgeRezek's view. bemadeto thejudgmentin Legality 2004 ICJREP. Legalityof Use of Force (Yugo. added).6 (emphasis 20 Rezek's termexpiredbeforethe Courtdelivered its judgmenton February 26. Accordingly. Organization"25 during years to the United Nations as a new member.v.21 of December15.in characterizing case).2007] NOTES AND COMMENTS 805 the FederalRepublicof Yugoslavia. had he still been on the Court's entity considered by the Court as the respondent benchin 2007. 1999. at 301.

para. Guillaume. sep. at the time of riling its Application to institute the present proceedings before the Court on 29 April 1999. 32Id. it had not dealt with the question of FRY-I's UN membership but merely with the question whether FRY-IFs admission in November 2000 was a "new fact" that could justify a revision of the 1996 judgment in the Genocide Convention case. 2004 ICJ REP.. which will be revisited below. JJ. J. 28 Id. at 334. it had become clear that FRY-I's status at the Organization could not have amounted to membership." Id. since FRY-II had raisedthe same arguments in the earliercase after being admitted to the United Nations. Judges Guillaume.28 however. the Court is led to the conclusion that Serbia and Montenegro was not a Member of the United Nations. at 311.. 2003 ICJ REP. The Court. and in light of the legal consequences of the new development since 1 November 2000. In her separateopinion. the signatoriesof the joint declaration state: "We find this proposition far from self-evident and we cannot trace the steps of the reasoning. op. Al-Khasawneh. at 31 1-14. at 330. stating that it had "to consider . supra note 22. para. at 314. Noting that "Serbiaand Montenegro has not sought a discontinuance" and that it has stated that it "wants the Court to continue the case and to decide upon »3i . 80. fell back on the technical argument that. & Elaraby..para. 30 Id. from the vantage point from which the Court now looks at the legal situation.). Judge Rosalyn Higgins (one of the signatories of the joint declaration) sought to avoid dealing with the question of FRY-I's UN membership altogether by expressing the view. Kooijmans. Buergenthal and Elaraby. Id. 12 (Higgins. 80-90. 31 Id. at333. and in that capacity a State party to the Statute of the International Court of Justice.which they found inconsistent with the findings of the Court in the Application for Revisioncase. Higgins. seven of the fifteen judges29appended a joint declarationto the judgment in which they strongly dissociated themselves from its reasoning. 2004 ICJ REP. 79. para. 27 Id. Al-Khasawneh. at 339. The Court. 78. para. 101:800 The Court held Applicant could not have amounted to its membership in the Organization. at 31 1."26 that. joint dec).27 The Court (including the Yugoslav ad hocjudge Milenko Kreca) then unanimously found that it had no jurisdiction to entertain the claims of Yugoslavia. para. Higgins. Legality of Use of Force. in the Applicationfor Revision case.at 31. Buergenthal. that it would have been "reasonable. whereby the Court has ex officio the power to put an end to a case whenever it sees that this is necessaryfrom the viewpoint of the proper administration of justice. After correctly stating that the Applicationfor Revision case did not constitute resjudicata in the case before it.806 THE AMERICANJOURNALOF INTERNATIONALLAW [Vol. 29 Joint Declaration of Vice-President Ranjeva. 12 (Ranjeva. Kooijmans.30Addressing themselves to the judgment's finding that as a result of FRY-II's admission to the United Nations. paras.necessary and appropriate for the Court to strike the case off the List as an exercise of inherent power to protect the integrity of the judicial process. at 310.. 10 (quo ting Application for Revisionism note9. 71). para. at 328. Although the Rules of Court do not provide for such a procedure." Legality of Use of Force. id. The Court in its judgment did consider the question of discontinuance of the proceedings: The question has been raised whether there is a procedure open to the Court itself. was well aware of a possible conflict with its Applicationfor Revisionjudgment. It concluded that "there is no reason to treat the Judgment in the Applicationfor Revision case as having pronounced upon the issue of the legal status of Serbia and Montenegro [in the 1992-2000 period] vis-a-vis the United Nations. para. 33. para. there is no doubt that in certain circumstances the Court may of its own motion put an end to proceedings in a case. however. para. the Court conceded that the relevance nevertheless had to be examined."32 26 /^/. 129.at 294. 90. the relevance to the present case of the Judgment in the Applicationfor Revision case. of course. supra note 22.

. I believe. op. para. stating: The arguments made by Serbia and Montenegro in the Application for Revision case and in the present cases are virtually identical. statedand appliedtheapplicable shouldhaveconsistently law. Yugoslavia not only renounced the claim to legal identity and continuity but claimed at the same time to be accepted as a new State in the sense of some other. joined the dispositifbecause.).pursuant to Article3 1(5) of the Statute. the Courtheld thatfor this andotherreasons elaborated "cannot removethe casesconcerning fromthe List. . and thus establish a close link between the Genocide Convention case and the present cases. para. sep. The admission of Yugoslaviato membership of the United Nations from 1 November 2000 also meant the acceptance of the claim of Yugoslaviato be accepted as a new State in the sense of a new international personality different from its hybrid and controversial personality in the period 1992-2000. . at 370. V.Judgead hocKrecastatedthatwherethe Courthas effective Addressing As such. sep. para. . [I]t mightevenbe saidthatsummary removal wouldhavethe meaningof a kind of denialof justice. the Court. .supranote 22. in his separateopinion.or takeany decisionputtingan end to Legality of Useof Force thosecasesin limineUtisTId. . [b]y submitting [in 2000] the application for admission to membership in the United Nations. removal with the dutyof the Courtto examineex officio the questionof its juriswouldbe in sharpcontradiction in suchcircumstances diction..) (emphasis para.35in his separateopinion. stressed that. the Courtlackedjurisdiction ratione materiae. Id. has chosen an approach which is not in line with the approach taken in 1999 and 2003 and which inevitably has implications for the Genocide Convention case. "haddecided..33 In his separateopinion. op. 2004 ICJREP.at 287. 3 Id.44. at 388-89. ." id." of Use of Force.). added). sep. op.43.18.it its jurisdiction. it filed its application in the instant case. para.Dutch and French the judgesad hocchosenby the respondent Statesshouldnot sit duringthe currentphaseof the pronationality. that. Legality 36Id.. It is. Judge ad hoc Kreca.13 (Elaraby. at 415-16. at 346. in spite of the fact that this link is now undeniable.. at 297-98. sep.summary "isunacceptable.2007] NOTES AND COMMENTS 807 Judge Pieter Kooijmans (yet another signatory of the joint declaration). pt... J. seems also to have clearly foreseen the inherent contradictions that would confront the Court when facing the GenocideConventioncase on its merits. takinginto accountthe presenceupon the Benchof judgesof British. removalin liminelitisat the request of the respondent summary jurisdiction..9 (Kooijmans. This approachwould have yielded an outcome consistent with the law of the Charter and the establishedpracticeof the United Nations and. remarkable that. . onlyjudgead hocin thesecaseswasJudgeKreca.). .throughoutthe various phasesof the casesrelatedto theformer Yugoslavia. J. this questionin his separate opinion." Id. at 297. in 1999.34 By contrast. 35The sincethe Court. op. at 357-58. different legalpersonality.27-28 (Kreca. in his view. ..from the one claimed until the year 2000. would have led the Court to find that the FRY was a member of the United Nations when.36 in the judgment. J.66 (Kreca. in its present Judgment.. . paras. para. Judge Elaraby(also a signatoryof the joint declaration)strongly criticized the Court's approach: Whereas the Security Council and the GeneralAssembly were acting in apolitical capacity when the relevant resolutions were adopted. therefore. .JudgeElaraby J. cedurein thesecases. 33Id.a successorStateversuspartialcontinuation of the formerSFRY. the Court. .

the judicata. .the Courtfoundthatit did scope Addressing judicata not applyjust to the Yugoslav by it at the time.. provisional "40 in thecase. . .e.para. 2007.the Courtstatedthat it appliedequallyto judgmentson preliminary objectionsand to those on the merits. . did not containanyfindingon the questionwhether or not thatState[i. objections party at the time: bership Bosniaand Herzegovina asApplicant.2007 Judgment GenocideConvention In itsjudgmentof February 26. in a positionto participate in casesbeforethe Court.On thatbasisit proceeded to make afindingon jurisdiction whichwouldhavetheforceof res . 117. this findingmust as a matterof construction be understood. para. . . 3y/^. para.131.. 132.39 then the of res in its 1996 judgment.42 and then ruledas follows: Since. . Whether Parties the matter as one of "access to or the the Court" of ratione classify "jurisdiction personaey\ factremains thatthe Courtcould not haveproceeded the meritsunlessthe to determine hadhadthe capacity beforethe underthe Statuteto be a partyto proceedings Respondent Court. by necto meanthatthe Courtat thattimeperceived asbeing the Respondent essary implication. . ."38 Afteranalyzing the meaningandpurposeof the principle of res judicata. para. precedes raiseex officio . wasasserting beforethisCourtthatthe FRY was nevertheless a partyto the [Court's]Statute. the CourtnotedthatwhenYugoslavia's preliminary were in FRY-I's UN memconsidered neither had the issue of raised 1996."41 The Courtwent on to mentionits decision applied in the Legality Use Force to cases the effect that "fromthe vantagepoint"of 2004 it had of of becomeobviousthat FRY-Ihad not been a memberstateof the United Nations. Referring for Revision "whilebindingbetweenthe parties. materiae. para. when these difficulties' were Court. . 42 Id 45 Id. . para.. 38Id.106.130. and for the FRYto raisethe issue would haveinvolvedundermining of the or abandoning its claimto be the continuator SFRYas the basisfor continuingmembership of the United Nations.808 THEAMERICAN LAW OFINTERNATIONAL JOURNAL [Vol.the Courtthen noted that its judgmentthere. 113. . .43 The Courtcontinuedby stating: 37GenocideConvention Judgment. In preliminary objectionsexplicitlyrejected of the factthatthe solutionadoptedin the UnitedNations 1996 the Courtwasnot "unaware to the questionof continuation of the membership of the SFRY'[was]not freefromlegaldifas the in Courthadnoted its Orderof 8 April1993 indicating measures ficulties'. . while denyingthat the FRYwas a Memberof the UnitedNationsasa continuator of the SFRY. the questionof a State'scapacity to be a partyto proceedings is a matterwhich thatof jurisdiction ratione andone whichthe Courtmust.if necessary. FRY-I]had actually beena Memberof the United Nationsin 1993. 40Id. 10 1:800 .37 to the Application case.supranote 1.and thatit wasthe continuator formembership in the UnitedNations. finally dissipated According "'legal in 2000 the FRYabandoned its formerinsistence of the SFRY. . 41Id. to the .

.48 that there had alwaysbeen states that recognized FRY-I as the continuatorof the SFRY. "My disagreementwith the majority . 49 Id. . In his words. 471.and indeed must.2007] AND COMMENTS NOTES 809 That the FRY had the capacity to appearbefore the Court in accordancewith the Statute was an element in the reasoning of the 1996 Judgment which can.. 2004 Judgments . . have to go on to consider what might be the unstated foundations of a judgment given in another case.44 Sensing that it still had to reconcile this decision with its 2004 judgments in the Legalityof Use of Forcecases. . Id. 6. the Court rather laconically added: As regardsthe . "Rather. para. since in any event such resjudicata could not extend to the proceedings in the cases that were then before it. 7 Dissenting Opinion of Vice-PresidentAl-Khasawneh. . That element is not one which can at any time be reopened and re-examined . 3. 11. ."47He pointed out that the relevant Security Council and General Assembly resolutions were compromises that fell short of terminating or suspending the SFRY's membershipin the United Nations. . para.46and even one judge who voted in the majority (Vice-President Awn Shawkat Al-Khasawneh) took issue with the Court's reasoning in his dissenting opinion.y para. . five of the fifteen judges voted against the dispositifon the matter of jurisdiction. between different parties. between different parties. "50Criticizing the Court's approach in the Legalityof Useof Forcejudgments.be readinto theJudgmentas a matterof logicalconstruction. . it should be borne in mind that the concern of the Court was not then with the scope of resjudicata of the 1996 Judgment. and that FRY-I had been treated de facto by the General Assembly as such. 135 (emphasis added).45 Not surprisingly.. .49Vice-President Al-Khasawneh concluded that. supranote 1. [T]he majority found in those closely related cases an escaperoute which was used notwithstanding the impact that this would have on the present 44 45Id. relatesnot only to their conclusions but also to the very assumptions on which their reasoning is based and to their methodology for appreciating the facts and drawing inferences therefrom . No such express finding having been shown to exist. as it has in the present case. .. 48 Id. para. 8. .the act of admission confirms that it had been an old member by way of continuity until it abandoned that claim and took on the status of a successor." the admission of FRY-II in 2000 does not mean that FRY-I was not a UN member. . . Genocide Convention Judgment. the Court's reliance on resjudicata to resolve the obvious contradiction between the 2004 judgments in the Legalityof Use of Forcecases and its 2007 judgment in the GenocideConventioncase evoked strong reservationsamong some of the judges. 50 Id. 46 Jtf. It was simply appropriatein 2004 for the Court to consider whether there was an expresslystated finding in another case that would throw light on the matters before it. "[s]een from this angle. . In fact. . the Court in 2004 did not. . para. para. Therefore the FRYwas a continuator in 1992 to 2000 and a successorafter its admission in 2000. Vice-President Al-Khasawneh stated that "the caution that had for better or worse always characterizedthe Court's approach to the issue of Yugoslavia's membership was thrown to the wind.

cases.13. 54Id. wasone of the sevenjudgesin the Legality para. Seenote 29 supra. that the issue of access was considered and decided."51He then castigated the majority for having "contributed to confusion and contradictions" between these different. Judge Leonid Skotnikov. para. in the face of a challenge by the Respondent in this case.."52 In their joint dissenting opinion." asserting sidestepping question "which . if Serbiaand Montenegro was not a Member of the United Nations in 1999. para. the only thing the presentJudgment could do was to take refuge in the formalism of resjudicata. and Abdul Koroma) expressed "seriousmisgivings"about the majority'sreliance on the principle of res judicata by "necessary that the Court was thus the implication. when the Application in this casewas filed. then it must also not have been a Member on 20 March 1993. in which it had found that Yugoslavia had not been a member of the United Nations in 1999.GenocideConventionJudgment. though related.17. whether or not Serbia and Montenegro (the Respondent) was a United Nations Member. it will be recalled. but the issue of access was not even addressed."53In addition.. of UseofForce caseswho. was not a party to the Statute of the Court.14. 56Id. 55Id. the three dissenting judges reasoned that "from both the factual and legal perspectives. before it was admitted on 1 November 2000 to the United Nations as a new Member under Article 4 of the United Nations Charter . .2.28. DissentingOpinion of Vice-President para. Shi Jiuyong. [has] a on the existence or non-existence of its at the time the Application was filed bearing jurisdiction in this case: namely.56 In a similar vein. judicial consistency would have requiredthe Court to respond as it did in the Legalityof Useof Forcecases. 3 Shi and Koroma. 101:800 case.8 10 THEAMERICAN OFINTERNATIONAL LAW JOURNAL [Vol.supra note Joint DissentingOpinion of JudgesRanjeva. three of the judges who voted against the dispositifoxvthe jurisdictional issue (Judges Raymond Ranjeva. in either the reasoning or the dispositifof the 1996 Judgment. . A matter that the Court has not decided cannot be qualified as resjudicata."noted: In the 2004 Legalityof Use of Forcecases.. The Court there felt bound first and foremost to examine the question whether the Respondent was or was not a party to the Statute of the Court at the time the proceedings were instituted . and consequently. while voting for the unanimousdispositifin theirjoint declaration dissociatedthemselvesfrom the Court'sreasoning. and even between "the different phases in the present case with the result that. 51Id. 52 Al-Khasawneh.. with the contagion spreading."55 They then concluded that. the Court has acknowledged a certain legal reality. that the Court lacked jurisdiction rationepersonaeover it. 1. .54 Citing the Court's unanimous judgments in the Legalityof Use of Forcecases. in what he termed a "Declaration. para. and those contradictions being quoted back at the Court.. para. let alone decided.which exists independently from the wishes of the Court or the Partiesand which cannot be any different in this case: Serbia and Montenegro had not been a Member of the United Nations. they continued. it seems quite clear that.JudgeAl-Khasawneh.3.. . in relying on res the Judgment implies judicata as a basis of its jurisdiction rationepersonae.. It is regrettablethat on this occasion the Court chose to depart from its own jurisprudence..

"60 III. the Court can createparallelrealities: namely. The watershed event in the four Yugoslavia-relatedjudgments of the Court surveyed above. followed by identical legal consequences. . occurred about halfway.and GenocideConvention that date. . may be altered as "amatter of logical construction" if the integrity of the principle of resjudicata so requires .was the Respondent a member of the United Nations at the material point in time [in the period 1992-2000] and. 2007. 58 Separate Opinion of JudgeKreca. as such.GenocideConventionJudgment. Judge Krecastated: "The [Court's] reasoning sugem. is a further blow to the reality which.Shi. the judgments in the Application . FRY-II's admission to the United Nations on November 1. although it undoubtedly was not. 59Id.59. 1993. in this case.2007] AND COMMENTS NOTES 8 11 However. Appraisal Between the institution of proceedings by Bosnia-Herzegovina in the GenocideConvention case on March 20. para. what the Court's reasoning in the present case means is that. while acknowledging that the Legalityof UseofForcejudgments did not constitute res judicata in the instant case. while the GenocideConventionand Legalityof Use of Forcecases were instituted before November 1. It is certainly noteworthy that these three judges.supranote 1. in their joint dissenting opinion of 2007 in the GenocideConventioncase. which inevitably would have led to the conclusions reachedin those judgments.and thejudgesad hocforBosnia-Herzegovina (ElihuLauterpacht figureexcludes AhmedMahiouin theApplication and the 2007 judgmentin the Genocide Convention cases)and for for Revision in theApplication caseand MilenkoKrecain the remaining cases). that the Court makes decisions independently from objective law established by its Statute.Legalityof Use of Force.62strongly 57Declaration of JudgeSkotnikov. Judge ad hoc Krecaof Serbia (the fifth judge to vote against the dispositif on the jurisdiction issue). participated in the judgments renderedin the cases in question.supranote 1. and the Court's judgment on the merits on February26. almost fourteen years elapsed. para. a party to the Statute of the Court. the existence of access to the Court by the Respondent by virtue of its finding on jurisdiction in the 1996 Judgment on PreliminaryObjections .. twenty-seven judges. . 60Id. and Koroma) sat on the bench in all four judgments. 61This in the 1996 judgment.Merits were all delivered after for Revision. 1st 3 paras.51.GenocideConventionJudgment. on the other hand. para. Over those fourteen years. ?7 In his separateopinion.. The notion that the issue of access by the Respondent to the Court under Article 35. paragraph1. of the Statute must be considered as having been dealt with in the 1996 Judgment. The main reasonfor this argument is that "the relevantissue. . Yugoslavia (VojinDimitrijevic for Revision Seenotes 53-56 supraand corresponding text. by application of the principle of res judicata in incidental proceedings.. in fact. Only three of them (Judges Ranjeva. As already indicated. 2000. is posed in both cases. It reflects the anachronistic and totally gests that quidquidjudicii placuityhabet legis vigor idea that the Court is not the unacceptable guardianbut the creatorof legality and. ."59 Criticizing the contradiction between the reasoning and conclusions of the 2004 judgments.48. and the majorityjudgment in the instant case. on the one hand. according to the Judgment.in the identical form. .58indicated that the Court should have followed its reasoning in those judgments.61in varying compositions. 2000.

1920-1996. ." 67UN Doc. A/55/PV. the SFRY]will no longerfly at United Nations Headquarters in the world.48.aswell as the languagein President Kostunica'sapplication for admission.8 12 THEAMERICAN OFINTERNATIONAL LAW JOURNAL [Vol. The Law and Practice of the International Court. which strongly criticized the judgment's while joining the unanimous decision of the Court that it had no jurisdiction to reasoning64 entertain the claims of Yugoslavia.tended to give the impression that FRY-II became a directsuccessor to the SFRY. these three judges were among the seven signatoriesof the joint declaration in the Legalityof Use of Forcecases. 65See supranote 28.66 If there is any common ground in this fourteen-year-long judicial saga. supraand corresponding Seesupranotes 29-31. it is that FRY-II's admission to the United Nations as a new member of the Organization markeda turning point with regardto theprospective legal status of Yugoslaviaat the United Nations. the representativeof Macedonia spoke of the need for the speedy resolution of the succession of the former SFRY. in have fact further confused the legal issues involved."70 All these statements. as outlined in the 63Seenote 46 text." in the 1996 judgment. of this ruleis evenmorequestionable 1607-10 (4th ed. 66As has been shown Rosenne. hence their tortured reasoning. 70Id at 33. at 28 satisfaction that "[t]heflagof a nation that (Nov. But farfrom clarthat the differing evaluations of that event.the of the ruleof res by applicability judicataderivingfromjudgmentson preeven if a questionwas explicitlydecided in the preliminary liminaryobjectionsis problematical stage. at 883-87. Convention implication. He alsoexpressed hereand elsewhere long ago ceasedto exist [thatis. in the view. 1992-2000. the applicability (andthusdid not resolve)an issueforwhich the statusof res preliminary stage. 69Id at 32. with regardto the years status ifying retrospectively. he stated that Yugoslavia"hasentered the United Nations family on an equal basis with the other Republics of the former socialist Republic of Yugoslavia. When AmbassadorRichard Holbrooke of the United Stateswelcomed FRY-IIas "the newest member"of the United Nations. 68Id at 31.the Courtdid not address judicata is still claimed"bynecessary as occurred in the Genocide case. 1. These three judges were also among the five judges (the others being Judge Skotnikov and Serbia'sJudge ad hoc Kreca)who voted against the dispositifon this question. 2000). 10 1:800 dissociated themselves from the reasoning of the judgment on the jurisdictional issue and pointed out the obvious inconsistency between that judgment and the Court's previous judgment in the Legalityof Use of Forcecases. 2 & 3 Shabtai Rosenne."67On behalf of the Group of Non-Aligned States."68In a similar vein. thus ignoring the practice of the United Nations during the years 1992-2000. their decision being based on the controversialargument of the applicability in this instance of the principle of res judicata."69as did the representativeof Croatia when referring to FRY-II's acceptance of "the principle of the equality of all the States that emerged after the dissolution of the former Socialist Federal Republic of Yugoslavia. the representative of South Africa expressedsatisfaction that "the principle of equality among the successor States to the former Socialist Federal Republic of Yugoslavia has been accepted by all the parties. 2006). established "by necessary implication.63Moreover. In the author's when. "on the basis of the equality of all five successor States.65 A perusal of the Court's 2007 judgment revealsthat even the majorityjudges could not hide their fundamental uneasewith the eventual outcome on this issue in the Genocide Convention case."Id.

while arguing that it was a new international personality with a new legal identity.Thus.a course of action that would have been perfectlylogical for a state claiming to be a new entity different from that of the original applicant. the Legalityof Useof Forcecases.71 There seem to lie the roots of the theory that if FRY-II was a new member of the United Nations. FRY-II. . the fact of FRY admission to the United Nations in 2000 was viewed as retroactively clarifying the Respondent's hitherto amorphous status vis-a-vis the United Nations in favour of the conclusion that in the period 1992 to 2000 it was not a United Nations Member. one had to deny the UN membership of FRY-I between 1992 and 2000. and its application "by necessaryimplication" to the 1996 judgment in particular. The contradiction between the Legalityof Use of Forcejudgments and the 2007 judgment in the GenocideConventioncase cannot simply be explained away by the questionable invocation in the latter case of the principle of res judicata in general.The 2007 judgment has also brought about the curious result that the Court's explicitfinding in the Legalityof Useof Force cases that FRY-I was not a member of the United Nations in the 1992-2000 period was set aside in the 2007 judgment by virtue of the Court's reliance on an implicit assumption affirming such membership. as the applicant. In the Application for Revisioncase. FRY-II (having in the meantime changed its name to "Serbiaand Montenegro")once again left it to the Court to determine its own jurisdiction. All these developments eventually culminated in the 2007 judgment in the GenocideConvention case.2007] AND COMMENTS NOTES 8 13 legal counsel's letter of September 29. the Court regardedas a decisive factor in its decision the admission of FRY-II to the United Nations as a new state. the discontinuance of the Legalityof UseofForcecases. on that ground. FRY-II's tactics became even more evident when it refused to seek. 1992. . Nothing could be more debatable. in effect denying FRY-I's UN membership in the years 1992-2000 and dismissing.it might have arrivedat a much more consistent position from the point of view of legal cogency. .a concept accepted by both the majority and most of the minority judges. In the author's opinion. But here we are not dealing with a State that 71 See Legal Counsel's Letter. Admittedly. the Court sidestepped this issue by narrowlyfocusing on the technical question whether FRY-II'sadmission to the United Nations was a "new fact"justifying revision. in a furtherattempt to force the Court's hand in advance of its judgment in the Genocide Conventioncase. as follows: Curiously. Instead.The logic of the argument seems at firstglance to be straightforward:admission as a new Member means that the FRY was not a Member before the date of admission. while it had refused to treat this event even as a simple "new fact" in the Applicationfor Revisioncase.in his dissenting opinion to the 2007 judgment in the GenocideConventioncase. the respondent having disappearedas a legal personality. The Court then opted for the "vantagepoint" theory. Had the Court not embraced in the Legalityof Use of Forcecases the concept that FRY-II's admission to the United Nations as a new member necessarilymeant that prior to that date FRY-Iwas a nonmember. supra note 8. did not help the Court by insisting that the Court decide whether it still had jurisdiction in the GenocideConventioncase. "on the basis of equality with the other successor States"to the SFRY. such a course was in fact charted by Vice-President AlKhasawneh. .

one Czech and one Slovak. 11.74 As President Kostunica pointed out in his letter of application. in the wake of the dissolution of Czechoslovakia. and new anthems for themselves. which is absurd.Federal Republic of Yugoslavia states usually adopt new names. of the Court's conclusion that Yugoslavia's position at the United Nations in the years 19922000 could not have amounted to membership in the Organization). 1992. Many new states. Rather we are faced with a State that assiduously maintained it was the continuator of an original United Nations Member and which had to relinquish a strong claim to continuity and apply as a new Member in the sense of a successor State. confirming FRY-I's continuing membership in the United Nations. or successor. para. adopted with a view to keeping up a fiction necessitatedby the politically motivated resolutions of 1992. Russia Takesover the Soviet Union s Seat at the United Nations. in 1989 the military junta changed the name Burma to Myanmar (a name going back to the thirteenth century). The Federal Republic of Germany of the post. FRY-II'sstatus at the United Nations as a "new"state was in reality more nominal than real. new flags. Canada. successor name. Yehuda Z. while the former Soviet anthem was retained. the United Kingdom. INT'L L. Of course. while Slovakia chose that of the Slovak state established in 1939 (a fascist vassal of Nazi Germany).as well as its flag and national anthem. the two successor states. para. The "successorstatus" of FRY-II was forced upon it by the 1992 resolutions of the Security Council and the General Assembly.each of the two new republics retained its own part. supra note 47."he concluded. in the first place.72 Vice-PresidentAl-Khasawneh continued this line of reasoning. but the United States. "Furthermore.. The former Soviet flag was replaced by the tricolor of the former Soviet Russian Republic. The Czech Republic retained the flag of the former Czechoslovakia. 1992. one could have gone even further. quoted in text at note 89 infra). and Australia have refused to do so.World War II period restored the flag of the Weimar Republic. the Russian Federation became its continuator at the United Nations and took over its UN seat.a UN founding member. 74 See supra note 34 and corresponding text (criticism by Judge Elaraby. as the only authoritative /^/appraisal of the relevant Security Council and General Assembly resolutions. 101:800 had never been a United Nations Member. with the Slovak coat of arms superimposed on it. for fear of appearing to confer legitimacy on the ruling junta. what truly happened in Yugoslavia in September-October 2000 was primarily a domesticconstitutionalchange of regime. "in the wake of the fundamental democratic changes"that had taken place there. which had been adopted without any /^/justification and in violation of the relevant provisions of the UN Charter.814 THE AMERICANJOURNALOF INTERNATIONALLAW [Vol. Some evidence to this effect can also be found in the new state's preservationof its . in his separate opinion in the Legality of Use of Forcecases. 354 (1992). by General Assembly Resolutions 47/221 and 47/222. 6 (referringto the UN legal counsel's letter of September 29. Thus. by arguingthat FRY-I had remained an old member by virtue of continuity until its admission in 2000 made it a new member. respectively. supra note 8. "to argue that the SFRY was extinguished in 1992 and that the FRYwas a successorof the SFRYin 2000 without firstbeing its continuator in the intervening period creates a legal void . Since the national anthem of Czechoslovakia had consisted of two parts. When the UN membership of the Czech and Slovak Federal Republic lapsed on December 31. 3 EUR.primarilyin Asia and Africa. After the dissolution of the Soviet Union in December 1991. there are instances that do not conform to the general practice. the admission of Yugoslaviato the United Nations was prompted. seealso Dissenting Opinion of Vice-President Al-Khasawneh.75 It was only 72 73Id Dissenting Opinion of Vice-President Al-Khasawneh. a mere change of name by a state does not usually entail a change of its international personality.by mutual agreement of its two components. while it retained the tune of the former anthem. the first stanza of the "Deutschlandlied" sung before 1945 was replaced by the third stanza."73 In reality. albeit with a new text.changed their names in attempts to shed their colonial past. J. 75To be sure. The European Union refers to .were admitted to the United Nations as new members on January 19. The United Nations recognized the new name. Blum. 1993. supra note 47. as noted above. For example. but between a "new Member" and an "old Member". of eight years.the Czech Republic and the Slovak Republic.. The distinction therefore is not between a "new Member" and a "nonMember".

is described in the Mahabbarata and the Ramayana). to discontinue the GenocideConventioncase on what would have been considered purely technical grounds. it would have risked the possibility of imposing responsibility on only some of the states out of the whole group that participated in those bombings.underits new people" presided name. It is certainly revealing that the Yugoslav judge ad hoc Kreca also voted for the unanimous decision in the Legalityof Useof Forcecases. that FRY-I had not been a member of the United Nations in 1999 (when it instituted proceedings in the case). "theprincipaljudicial organ of the United Nations.The resultwas the further complication of an alreadycomplex legalissue for the International Court of Justice. "from the vantage point" of 2004. Moreover. for it spared it the need to entertain the merits of the legally complex and controversialquestion of the use offeree by the respondent NATO countries against Yugoslavia. Spain and the United States) were not subject to the Court's jurisdiction. in their joint dissenting opinion. Even Judges Ranjeva. 92 (emphasis added).at 341. this outcome was a convenient escape route for the Court. and Germany. different from that of FRY-I.in October 1984. the impact of the Court's decision and its relevance"canlie. that it had a new international personality. As Judge Higgins aptly put it. And even if the Court had been preparedto assume such a risk. and only lie. op.. Such a decision would have been seen as an evasion of its responsibility to give a judicial response to those atrocities. . incidentally. as it had been forced to do at the United Nations.2007] NOTES AND COMMENTS 8 15 because admission as a new state was requiredto regularizethe status of the FRY at the political organsof the United Nations that FRY-IIhad to make such a request. overit again. insisting before the Court. it came closer to its goal in the Legalityof UseofForce cases when the Court decided. The situation was different in the Genocide Conventioncase. Given the enormity of the crimes perpetratedin Bosnia-Herzegovina in the 1990s (and. The seven judges who seriouslydoubted that the Court's finding regardingYugoslavia'snonmembership in the United Nations in the years 1992-2000 was consistent with the decision in the Applicationfor Revisioncase must have also had in mind the implications for the then-pending decision in the GenocideConventioncase. Shi. In this manner it tried to bring about the termination of the proceedings in the GenocideConventioncase. France. A curioussituationarosein 1984 when UpperVolta. and Koroma.as the island in 1972 CeylonbecameSriLanka(in Sanskrit "theresplendent land" Likewise. from the broad perspective of judicial public policy. some of the states involved in the NATO bombings of Yugoslavia (namely. Having been rebuffed by the Court in this attempt in the Application for Revisioncase. 77 of Use of Force.). para. in another pending case.havingchangedits namein September 1984 to years1984-1985. a nonpermanent memberof the SecurityCouncilin the overthe Councilin August1984. FRY-IIthen understandablytried to derive from this situation whateverbenefit it could. Burma/Myanmar. found it necessaryto assert in a somewhat apologetic vein that "our position [that FRY-I was not a UN member in the years 1992-2000] is purely a legal one. Legality f See supra note 21. responsibility for which was laid at the doorstep of FRY-I."76 Having thus had the status of a new member of the United Nations forced on it. it would have been very difficult for the Court. 76UN CHARTER Art. it would still have had to face the possibility of ruling against such central members of NATO as the United Kingdom. sep.18 (Higgins. presided Burkina Faso(meaning "thelandof the upright in thelocallanguages). and. not . In the event.J."77 meaning the Genocide Conventioncase.78had the Court gone into the merits of the case. also in other parts of the formerYugoslavia).supranote 22. 2004 ICJREP.

op. . and adopted the United Nations Charter.J.12 (Higgins. which stated.8 16 THEAMERICAN LAW OFINTERNATIONAL JOURNAL [Vol. the conference approved a statement on this matter."thequestion of the method of Charter interpretation was considered at some length. the Court was caught between the Scylla of Yugoslavia'snonmembership in the United Nations in the years 1992-2000 and the Charybdis of resjudicata "by necessary implication" of the 1996 judgment.at 339."79Thus.81 The Court might have been more successful in its attempts at damage control had it heeded Judge (now President) Higgins's suggestion. which met in San Francisco between April 25 and June 25. In fact. Goodrich. 22. Edvard Hambro. the only way for the Court to have extricateditself from the confusion not of its own making would have been the course that Judge Rezek suggested as earlyas 2003 in the Application for Revision case by raising the possibility that the dispute between Bosnia-Herzegovina and FRY-Iwas no longer extant "in the absence of the Respondent. included in the report of its Technical Committee. necessary and appropriatefor the Court to strike the case off the List as an exercise of inherent power to protect the integrity of the judicial process.supranote 53. At the United Nations Conference on International Organization. nor whether the present circumstancesareexactly identical to the few examples where the Court itself has removed a case from the List. . 84Leland M. 81See text. Charter of the United Nations: Commentary and Documents 14 (3d rev. I believe the answer is in the affirmative. which forced the admission of Yugoslavia as a new member in 2000. Joint DissentingOpinion of JudgesRanjeva. Legality supra Seesupra note 19 and corresponding text. ICJREP. in all likelihood. & Anne Patricia Simons. The question is whether the circumstances are such that it is reasonable. contained in her separateopinion in the Legality of Use of Force cases: [T]he real question is not whether the Applicant [Yugoslavia]has or has not "discontinued" the case. given the overall international political climate. to show that in our eagerness to avoid fallsinto Scylla.ed. ..."84However.).. In the author's view. 1945. Hence the proverb"Hewho wishesto avoidCharybdis. to uphold its jurisdiction in the 2007 judgment in the GenocideConventioncase. given the irregularconduct of the Security Council and the General Assembly in 1992. It was agreed that no provision of an explicit nature should be made in the Charter itself. sep. 10 1:800 involving any political or moral judgment in respect of the merits of the case.80The proverbialvirtual impossibility of navigating between them was manifested in the instant case by the obvious inconsistency in the Court's jurisprudence. para. . para.we often fall into a greater one. In GreekmythologyScyllaand Charybdis aretwo whirlpools so placedon the oppositesidesof the Straitof Messina thatseparates ItalyproperandSicilythatit is hardto steerclearof one withoutbeingcaughtby the other. . this might very well have been the intention of Judge Higgins in the first place. inter alia: 79 Shi and Koroma. supranotes 53-56 and corresponding 82 of Use of note 2004 Force.2. it would still have led it. was duly castigated by the five dissenting judges. in its attempt to assertjurisdiction in a clear departurefrom its decision in the Legalityof Useof Forcecases."83However. such an outcome was apparently not possible. the artificial nature of the Court's reasoning in the 2007 judgment. 1969).82 While the adoption of this suggestion might have spared the Court the embarrassment of inconsistency." one evil.As noted above.

to ask the International Court of Justice for an advisory opinion concerning the meaning of a provision of the Charter. where he contrasted the political capacity of the Security Council and the General Assembly in adopting the relevant resolutions with the applicable law that the Court shouldh&vz followed so as to reach an outcome consistent with the UN Charterand the Organization's established practice. supranote 84. This is so in addition of course to its negative and regrettableimpact on the broad consistency of the Court's jurisprudence. 15. added). . it is inevitable that each organ will interpret such parts of the Charter as are applicable to its particularfunctions. . they are of course free to submit the dispute to the International Court of Justice .the Court could not go beyond indicating its displeasureby using some mild phrases.2007] AND COMMENTS NOTES 8 17 In the course of the operations from day to day of the various organsof the Organization. was "the only /<?£#/ authority to appraisethe matter in what was an otherwise blatantlypolitical process . A case in point is Judge Elaraby'sseparateopinion in the Legality of Useof Forcecases. However. supranote 34 and corresponding 88 LegalCounsel'sLetter.. . If two member states are at variance concerning the correct interpretation of the Charter. 87See text. stressed that the UN legal 88 counsel. Difficulties may conceivably arisein the event that there should be a difference of opinion among the organs of the Organization concerning the correct interpretation of a provision of the Charter."Some of the dissenting judges used somewhat bolder language in giving expression to their dismay.. & Simons." that "the Court's logic in the Legalityof Useof ForceJudgments does not perhapsrepresentthe zenith of legal reasoning. would have been merely advisory. 933.87Likewise. Absent a request from those organs for an advisoryopinion (preferably before adopting those hybrid resolutions).. Vice-President Al-Khasawneh. in his dissenting opinion in the 2007 judgment in the Genocide Conventioncase. it would always be open to the GeneralAssembly or to the Security Council .. 703. . . para.."90 The author ventures to suggest that this characterization is equally applicable to the Court's overall performance on this issue. remarked. It is not devoid of a certain irony that 85 of CommitteeIV/2.6 (emphasis yu/^. as reflected in the entire body of its Yugoslaviarelated judgments rendered between 2003 and 2007. IV/2/42. J Al-Khasawneh. DissentingOpinion of Vice-President supranote 47... in Commenting Legalityof of the same dissenting opinion. such as that the situation thus created was not "freefrom legal difficulties. as the very term indicates. the practical outcome of this "ratheruntidy and uncertain situation for anyone interested in learningwhat the Chartermeans. "with great respect.. in his letter of September 29.which. Under unitary forms of national government the final determination of such a question may be vested in the highest court . Doc. the nature of the Organization and of its operation would not seem to be such as to invite the inclusion in the Charter of any provision of this nature."86has been the "interpretation"(or rathermisinterpretation or disregard)of the relevant Charter provisions and UN practice by the Security Council and the GeneralAssembly. Vice-President Al-Khasawneh. Similarly.. Reportof the Rapporteur 86Goodrich. 709 (1945). at 15. . 1992. . 13 UNCIO Docs." and that it was "amorphous.85 With regardto Yugoslavia'smembership in the United Nations between 1992 and 2000.para. Hambro. This process is inherent in the functioning of any body which operates under an instrument defining its functions and powers."89 on the Force Use judgments.supranote 8.

"amorphous." the Milosevic era continued to Thus. 2000. 10 1:800 the legalproblemssurrounding the UN statusof Yugoslavia duringthe 1992-2000 period wereintensified in the wakeof its admission to the UnitedNationson November1.the questionof Yugoslavia's statusat the UnitedNationsceasedto plaguethose who." prospective at and last "free from difficulties.At thesametime. and to the Courtfell the thankless taskof comingto gripswith this legallyawkward situation." legal castits long shadowat the International Courtof Justiceeven afterNovember1. the UN Security Counciland General Assembly.throughtheirdisregard of the provisions of the Charter andestablished UN practice carried the main responsibility for the seriousconfusionabout this issue. by which act Yugoslavia's no longer status at the Organization was "regularized. .8 18 THEAMERICAN LAW OFINTERNATIONAL JOURNAL [Vol. 2000.

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