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public international law

UPLAW 2009 B

“Subukan lang nilang hindi i-nullify yung ZTE. Baka may makita kayong good big fat man na burning down the house!” B. International Organizations 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. Vienna Convention on Consular Relations and Optional Protocols The particular status of members of the consular posts who are nationals or permanent The States Parties to the present Convention, residents of the receiving State is governed by Article 71 of the present Convention. Recalling that consular relations have been established between peoples since ancient CHAPTER I CONSULAR RELATIONS IN GENERAL times, Section I ESTABLISHMENT AND CONDUCT OF CONSULAR RELATIONS Having in mind the Purposes and Principles of the Charter of the United Nation Article 2 ESTABLISHMENT OF CONSULAR RELATIONS concerning the sovereign equality of States, the maintenance of international peace and The establishment of consular relations between States takes place by mutual consent. security, and the promotion of friendly relations among nations, The consent given to the establishment of diplomatic relations between two States Considering that the United Nations Conference on Diplomatic Intercourse and implies, unless otherwise stated, consent to the establishment of consular relations. Immunities adopted the Vienna Convention on Diplomatic Relations which was opened The severance of diplomatic relations shall not ipso facto involve the severance of for signature on 18 April 1961, consular relations. Believing that an international convention on consular relations, privileges and Article 3 EXERCISE OF CONSULAR FUNCTIONS immunities would also contribute to the development of friendly relations among nations, Consular functions are exercised by consular posts. They are also exercised by irrespective of their differing constitutional and social systems, diplomatic missions in accordance with the provisions of the present Convention. 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 A consular post may be established in the territory of the receiving State only with that respective States, State's consent. Affirming that the rules of customary international law continue to govern matters not The seat of the consular post, its classification and the consular district shall be expressly regulated by the provisions of the present Convention, established by the sending State and shall be subject to the approval of the receiving Have agreed as follows: State. Article 1 DEFINITIONS Subsequent changes in the seat of the consular post, its classification or the consular For the purposes of the present Convention, the following expressions shall have the district may be made by the sending State only with the consent of the receiving State. meanings hereunder assigned to them: The consent of the receiving State shall also be required if a consulate-general or a "consular post" means any consulate-general, consulate, vice-consulate or consular consulate desires to open a vice-consulate or a consular agency in a locality other than agency; that in which it is itself established. "consular district" means the area assigned to a consular post for the exercise of The prior express consent of the receiving State shall also be required for the opening of consular functions; an office forming part of an existing consular post elsewhere than at the seat thereof. "head of consular post" means the person charged with the duty of acting in that Article 5 CONSULAR FUNCTIONS capacity; Consular functions consist in: "consular officer" means any person, including the head of a consular post, entrusted in (a) protecting in the receiving State the interests of the sending State and of its nationals, that capacity with the exercise of consular functions; both individuals and bodies corporate, within the limits permitted by international law; "consular employee" means any person employed in the administrative or technical (b) furthering the development of commercial, economic, cultural and scientific relations service of a consular post; between the sending State and the receiving State and otherwise promoting friendly "member of the service staff" means any person employed in the domestic service of a relations between them in accordance with the provisions of the present Convention; consular post; (c) ascertaining by all lawful means conditions and developments in the commercial, "members of the consular post" means consular officers, consular employees and economic, cultural and scientific life of the receiving State, reporting thereon to the members of the service staff; Government of the sending State and giving information to persons interested; "members of the consular staff" means consular officers, other than the head of a (d) issuing passports and travel documents to nationals of the sending State, and visas consular post, consular employees and members of the service staff; or appropriate documents to persons wishing to travel to the sending State; "member of the private staff" means a person who is employed exclusively in the (e) helping and assisting nationals, both individuals and bodies corporate, of the sending private service of a member of the consular post; State; "consular premises" means the buildings or parts of buildings and the land ancillary (f) acting as notary and civil registrar and in capacities of a similar kind, and performing 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, thereto in the laws and regulations of the receiving State; tapes and registers of the consular post, together with the ciphers and codes, the card(g) safeguarding the interests of nationals, both individuals and bodies corporate, of the indexes and any article of furniture intended for their protection or safekeeping. 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.

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.

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

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.

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

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

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

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 SecretaryGeneral of the United Nations. For each State ratifying or acceding to the Convention after the deposit of the twentysecond 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

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 sixtythree. 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 sixtythree. 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

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 sixtythree. 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

the Government of Bosnia and Herzegovina has the right to request the immediate assistance of any State to come to its defence, including by means of immediately providing weapons, military equipment and supplies, and armed forces (soldiers, sailors, airpeople, etc.). 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.)".

all acts of discrimination based on nationality or religion and the practice of 'ethnic cleansing', including the discrimination relating to the delivery of humanitarian aid, against the Serb population in the 'Republic of Bosnia and Herzegovina.'"

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 counterclaims: 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

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 CounterMemorial; - 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 Herzegovina or that such acts, if proven, would be attributable to Bosnia and Herzegovina. Also, there is no basis in fact and no basis in law for the proposition that Bosnia and Herzegovina has violated any of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide. On the contrary, Bosnia and Herzegovina has continuously done everything within its possibilities to adhere to its obligations under the Convention, and will continue to do so; The ICJ should reject the counter-claims submitted by the FRY.

the Respondent had no access to the Court at the relevant moment; or, in the alternative; - that this Court has no jurisdiction over the Respondent because the Respondent never remained or became bound by Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, and because there is no other ground on which jurisdiction over the Respondent could be based. In case the Court determines that jurisdiction exists Serbia and Montenegro asks the Court to adjudge and declare: - That the requests in paragraphs 1 to 6 of the Submissions of Bosnia and Herzegovina relating to alleged violations of the obligations under the Convention on the Prevention and Punishment of the Crime of Genocide be rejected as lacking a basis either in law or in fact. - In any event, that the acts and/or omissions for which the respondent State is alleged to be responsible are not attributable to the respondent State. Such attribution would necessarily involve breaches of the law applicable in these proceedings.

INDEPENDENT STATE, CANNOT ESCAPE FROM BEING A RESPONDENT TO THE CASE. Bosnia and Herzegovina believes that even if Serbia has represented itself as the continuator of the former Serbia and Montenegro which has been accepted both by Montenegro and the international community, this acceptance cannot have, and does not have, any effect on the applicable rules of state responsibility. At the time when genocide was committed and at the time of the initiation of this case, Serbia and Montenegro constituted a single state. Therefore, Bosnia and Herzegovina is of the opinion that both Serbia and Montenegro, jointly and severally, are responsible for the unlawful conduct that constitute the cause of action in this case.

NOT THE RESPONDENT SINCE IT IS NOT US WHO SUCCEEDED FROM THE UNION STATE. Republic of Montenegro had become “an independent state with full international legal personality within its existing administrative borders”, and the issue of international-law succession of the State union of Serbia and Montenegro is regulated in Article 60 of the Constitutional Charter, and according to that Article the legal successor of the State union of Serbia and Montenegro is the Republic of Serbia, which, as a sovereign state, [has] become [the] follower of all international obligations and successor in international organizations.” In the dispute before the Court, “the Republic of Montenegro may not have the capacity of respondent. Furthermore, it cannot be made a respondent without its consent.

IDENTIFICATION OF THE RESPONDENT PARTY AS SUCCESSOR OF THE UNION STATE, REPUBLIC OF SERBIA ASSUMED ALL OBLIGATIONS OF THE UNION STATE SERBIA & MONTENEGRO. In 3 June 2006, Montenegro declared its independence and became a separate state from Serbia. Thus, the President of the Republic of Serbia informed the Sec-Gen of the UN that, following the Declaration of Independence adopted by the National Assembly of Montenegro, “the membership of the state union Serbia and Montenegro in the UN, including all organs and organisations of the UN system, would be continued by the Republic of Serbia on the basis of Article 60 of the Constitutional Charter of Serbia and Montenegro”. He 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 Republic of Serbia “remained responsible in full for all the rights and obligations of the state union of Serbia and Montenegro under the UN Charter”. Montenegro, now an independent state, was subsequently admitted as member of the UN upon the resolution 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 MONTENEGRO, EVEN IF ALREADY AN MONTENEGRO AS AN INDEPENDENT STATE, WE ARE

ICJ: REPUBLIC OF SERBIA IS THE RESPONDENT. Serbia has accepted “continuity between Serbia and Montenegro and the Republic of Serbia and has assumed responsibility for “its commitments deriving from international treaties concluded by Serbia and Montenegro” thus including commitments under the Genocide Convention. Montenegro, on the other hand, does not claim to be the continuator of Serbia and Montenegro. It is a fundamental principle that no State may be subject to its jurisdiction without its 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 existed, for the purposes of the present case, on the part of the FRY, which subsequently assumed the name of Serbia and Montenegro, without however any change in its legal personality. The Republic of Montenegro does not continue the legal personality of Serbia and Montenegro; it cannot therefore have acquired, on that basis, the status of Respondent in the present case. It is also clear that it does not give its consent to the jurisdiction of the Court over it for the purposes of the present dispute. Republic of Serbia remains a respondent in the case. THE COURT’S JURISDICTION The jurisdictional objection of the Respondent ISSUE: WON at the time of the filing of the Application instituting proceedings the Respondent was or was not the continuator of the Socialist Federal Republic of Yugoslavia (SFRY). BOSNIA - Court should not examine the question raised by the Respondent in its Initiative. Bosnia and Herzegovina firstly argues SERBIA & MONTENEGRO - The Respondent now contends that it was not a continuator State, and that therefore not only was it not a party to the
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that the Respondent was under a duty to raise the issue of whether the FRY was a Member of the United Nations at the time of the proceedings on the preliminary objections, in 1996, and that since it did not do so, the principle of res judicata, attaching to the Court’s 1996 Judgment on those objections, prevents it from reopening the issue. - secondly, it maintains that the Court itself, having decided in 1996 that it had jurisdiction in the case, would be in breach of the principle of res judicata if it were now to decide otherwise, and that the Court cannot call in question the authority of its decisions as res judicata.

Genocide Convention when the proceedings were instituted, but it was not then a party to the Statute of the Court by virtue of membership in the United Nations; and that, not being such a party, it did not have access to the Court, with the consequence that the Court had no jurisdiction ratione personae over it. - Respondent, after claiming that since the break-up of the SFRY in 1992 it was the continuator of that State, and as such maintained the membership of the SFRY in the United Nations, had on 27 October 2000 applied, “in light of the 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.

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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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.

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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.

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 jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction”. Article VII provides for extradition. Under Article VIII “Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article III.” Article IX provides for certain disputes to be submitted to the Court: “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.” The remaining ten Articles are final clauses dealing with such matters as parties to the Convention and its entry into force. treaty interpretation and on responsibility of States for internationally wrongful acts. OBLIGATIONS IMPOSED BY THE CONVENTION ON THE CONTRACTING PARTIES. The Court notes that there exists a dispute between the Parties as to the meaning and the legal scope of Article IX of the Convention, especially about whether the obligations the Convention imposes upon the Parties are limited to legislate, and to prosecute or 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. BOSNIA - this case is about State responsibility and seeks to establish the responsibilities of a State which, through its leadership, through its organs, committed the most brutal violations of one of the most sacred instruments of international law”. The Genocide Convention “created a universal, treaty-based concept of State responsibility”, and that “it is State responsibility for genocide that this legal proceeding is all about”. Article IX of the Convention quite explicitly imposes on States a direct responsibility themselves not to commit genocide or to aid in the commission of genocide”. As to the obligation of prevention under Article I, a breach of that obligation, “is established, it might be said is ‘eclipsed’ by the fact that [the Respondent] is itself responsible for the FRY - The Respondent contends to the contrary that “the Genocide Convention does not provide for the responsibility of States for acts of genocide as such. The duties prescribed by the Convention relate to ‘the prevention and punishment of the crime of genocide’ when this crime is committed by individuals: and the provisions of Articles V and VI [about enforcement and prescription] . . . make this abundantly clear.” It argues that the Court therefore does not have jurisdiction ratione materiae under Article IX; and continues: “[t]hese provisions [Articles I, V, VI and IX] do not extend to the responsibility of a Contracting Party as such for acts of genocide but [only] to responsibility for failure to prevent or to punish acts of

genocide committed; . . . a State which commits genocide has not fulfilled its commitment to prevent it”. The argument moves on from alleged breaches of Article I to “violations [by the Respondent] of its obligations under Article III . . . to which express reference is made in Article IX, violations which stand at the heart of our case. This fundamental provision establishes the obligations whose violation engages the responsibility of States parties.” It follows that, in the contention of the Applicant, the Court has jurisdiction under Article IX over alleged violations by a Contracting Party of those obligations.

genocide committed by individuals within its territory or . . . its control”. The sole remedy in respect of that failure would, in the Respondent’s view, be a declaratory judgment. As a subsidiary argument, the Respondent also contended that “for a State to be responsible under the Genocide Convention, the facts must first be established. As genocide is a crime, it can only be established in accordance with the rules of criminal law, under which the first requirement to be met is that of individual responsibility. The State can incur responsibility only when the existence of genocide has been established beyond all reasonable doubt. In addition, it must then be shown that the person who committed the genocide can engage the responsibility of the State . . .” (This contention went on to mention responsibility based on breach of the obligation to prevent and punish, matters considered later in this Judgment.) - The Respondent has in addition presented what it refers to as “alternative arguments concerning solely State responsibility for breaches of Articles II and III”. Those arguments addressed the necessary conditions, especially of intent, as well as of attribution. When presenting those alternative arguments, counsel for the Respondent repeated the principal submission set out above that “the Convention does not suggest in any way that States themselves can commit genocide”.

The Court observes that what obligations the Convention imposes upon the parties to it depends on the ordinary meaning of the terms of the Convention read in their context and in the light of its object and purpose. It reviews the wording of Article I, which provides inter alia that “[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”. 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.

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 physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group”; and (e) “Forcibly transferring children of the group to another group” themselves include mental elements. The Court stresses that, in addition to those mental elements, Article II requires a further mental element: the establishment of the “intent to destroy, in whole or in part, . . . [the protected] group, as such”. It is 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. Something more is required. The acts listed in Article II must be done with intent to destroy the group as such in whole or in part. The words “as such” emphasize that intent to destroy the protected group. Intent and “ethnic cleansing” The Court states that “ethnic cleansing” can only be a form of genocide within the meaning of the Convention, if it corresponds to or falls within one of the categories of acts prohibited by Article II of the Convention. Neither the intent, as a matter of policy, to render an area “ethnically homogeneous”, nor the operations that may be carried out to implement such policy, can as such be designated as genocide. However, this does not 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 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 with the necessary specific intent (dolus specialis), that is to say with a view to the destruction of the group, as distinct from its removal from the region. Definition of the protected group The Court needs to identify the group against which genocide may be considered to have been committed. It notes that the Parties disagree on aspects of the definition of the “group”. BOSNIA The group refers to “the non-Serb national, ethnical or religious group within, but not limited to, the territory of Bosnia and Herzegovina, including in particular the Muslim population”. It thus follows what is termed the negative approach to the definition of the protected group under the Convention. FRY Bosnia’s definition of the group is problematic. First, the group targeted is not sufficiently well defined as such, since, according to the Applicant’s allegation, that group consists of the non-Serbs, thus an admixture of all the individuals living in Bosnia and Herzegovina except the Serbs, but more particularly the Muslim population, which accounts for only a part of the non-Serb population. Second, the intent to destroy concerned only a part of the non-Serb population, but the Applicant failed to specify which part of the group was targeted.”

- Accordingly, the Court concludes that it should deal with the matter on the basis that the targeted group must in law be defined positively, and thus not negatively as the “nonSerb” population. The Applicant has made only very limited reference to the non-Serb populations of Bosnia and Herzegovina other than the Bosnian Muslims, e.g. the Croats. The Court will therefore examine the facts of the case on the basis that genocide may be found to have been committed if an intent to destroy the Bosnian Muslims, as a group, in whole or in part, can be established. - The Court further specifies that for the purposes of Article II, first, the intent must be to destroy at least a substantial part of the particular group. That is demanded by the very nature of the crime of genocide: since the object and purpose of the Convention as a 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 observes that it is widely accepted that genocide may be found to have been committed where the intent is to destroy the group within a geographically limited area. A third suggested criterion is qualitative rather than quantitative: the number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group. In addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration. QUESTIONS OF PROOF Burden of proof The Court states that it is well established in general that the applicant must establish its 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 Applicant has had extensive documentation and other evidence available to it, especially from the readily accessible records of the International Criminal Tribunal for the former Yugoslavia (ICTY), and that it has made very ample use of it. The Court finally observes 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 that the Court may be free to draw its own conclusions. Standard of proof The Parties also differ on the standard of proof. BOSNIA FRY Emphasizing that the matter is not one of According to the Respondent, the criminal law, says that the standard is the proceedings “concern the most serious balance of issues of State responsibility and . . . a evidence or the balance of probabilities, charge of such exceptional gravity against inasmuch as what is alleged is breach of a State requires a proper degree treaty obligations. of certainty. The proofs should be such as to leave no room for reasonable doubt.” The Court has long recognized that claims against a State involving charges of exceptional gravity MUST BE PROVED BY EVIDENCE THAT IS FULLY CONCLUSIVE. It requires that it be fully convinced that allegations made in the proceedings, that the crime of genocide or the other acts enumerated in Article III have been committed, have been clearly established. The same standard applies to the proof
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ICJ: The essence of the intent is to destroy the protected group, in whole or in part, as such. It is a group which must have particular positive characteristics - national, ethnical, racial or religious - and not the lack of them. This interpretation is confirmed by the 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 crossexamined 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.

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

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
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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.” Always will B

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Herzegovina as such; and accordingly that these were acts of genocide, committed by members of the VRS in and around Srebrenica from about 13 July 1995. 2. Article II (b): Causing serious bodily or mental harm to members of the protected group Having examined the specific allegations of the Applicant under this heading, and having taken note of the evidence presented (such as testimony of witnesses of torture, beating… “we were beaten with clubs, cables, bats, or other similar items by the military police. The men were placed in small, bare stables, which were overcrowded and contained no toilet facilities. While at the camp, the detainees received inadequate food and water. Their heads were shaved, and they were severely beaten during interrogations.”) to the ICTY, the Court considers that it has been established by fully conclusive evidence that members of the protected group were systematically victims of massive mistreatment, beatings, rape and torture 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 established that those atrocities, although they too may amount to war crimes and crimes against humanity, were committed with the specific intent (dolus specialis) to destroy the protected group, in whole or in part. 3. Article II (c): Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part The Court goes on to examine in turn the evidence concerning the three sets of claims made by the Applicant: encirclement, shelling and starvation; deportation and expulsion; destruction of historical, religious and cultural property. It considers the evidence presented regarding the conditions of life in the detention camps already referred to above. BOSNIA FRY

The Respondent argues that the events referred to by the Applicant took place in a context of war which affected the entire population, whatever its origin. In its view, “it is obvious that in any armed conflict the conditions of life of the civilian population deteriorate”. The Respondent considers that, taking into account the civil war in Bosnia and Herzegovina which generated inhuman conditions of life for the entire population in the territory of that State, “it is impossible to speak of the deliberate infliction on the Muslim group alone or the non-Serb group alone of conditions of life calculated to bring about its destruction”. The Respondent argues that the safe areas proclaimed by the Security Council had not been completely disarmed by the Bosnian army. For instance, according to testimony given in the Galić case by the deputy commander of the Bosnian army corps covering the Sarajevo area, the Bosnian army had deployed 45,000 troops within Sarajevo. The Respondent also pointed to further testimony in that case to the effect that certain troops in the Bosnian army were wearing civilian clothes and that the Bosnian army was using civilian 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 will B or imperative

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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”. 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). 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 led to psychological trauma which prevented victims from forming relationships and 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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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.
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“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 nonSerbian majority was systematically exterminated or expelled by force or intimidation”
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“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.

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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

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

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.

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

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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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

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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,

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 nonrepetition, 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

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 NONPARTICIPATION. 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 PanRussian 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.

"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

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

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 Court cannot regret that the question has been put, as all must now realize that the 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.

the Convention; otherwise, that State cannot be regarded as being a party to the Convention. On Question II: (a) if a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of the Convention, it can in fact consider that the reserving State is not a party to the Convention; (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 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. 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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RESERVATIONS TO THE CONVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE Advisory Opinion of 28 May 1951

ON

THE

PREVENTION

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: (a) The parties which object to the reservation? (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

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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.

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.

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 applicantstate, 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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