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Was Yugoslavia a Member of the United Nations in the Years 1992-2000?Author(s): Yehuda Z. BlumReviewed work(s):Source: The American Journal of International Law, Vol. 101, No. 4 (Oct., 2007), pp. 800-818Published by: American Society of International LawStable URL: http://www.jstor.org/stable/40006319 .

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Was Yugoslavia a Member of the United Nations in the Years

1992-2000?

ByYehuda .Blum*

NOTES AND COMMENTS

I. Background

The judgmentdeliveredby the InternationalCourtof Justiceon February6, 2007, in

ApplicationftheConventionn thePreventionndPunishmentoftheCrimeofGenocideBosniaandHerzegovina. Serbia ndMontenegro),1asonceagainhighlightedhequestionwhether

Yugoslavia2asa member fthe UnitedNations ntheyears1992-2000 - aquestionhathas

bedeviled he United Nations scene for the pastfifteenyearsand,as will be demonstrated

below,hasbrought orthsomecontradictoryronouncementsythe InternationalCourtof

Justice. n truth,the blamefor the considerableonfusionon this matterrestswith the UN

SecurityCouncilandGeneralAssembly,which n 1992setin motion the chainof events hat

created hepoliticalandlegalhiatusthatwill be analyzedn the followingpages.Intheearly1990s,the SocialistFederalRepublic fYugoslaviaSFRY) afoundingmember

of theUnitedNations)started odisintegrate:ourofitsconstituent epublics roclaimedheir

independence,amely,Croatia ndSlovenia inJune1991),Macedonia inSeptember 991),andBosnia-Herzegovinain April 1992). Croatia,Slovenia,and Bosnia-Herzegovina ere

admittedo theUnitedNations nMay1992,andMacedonianApril1993.3The two remain-

ingrepublics Serbia ndMontenegro, ccountingor40 percentof theterritorynd45 per-cent of the populationof the SFRY claimedthat the FederalRepublicof Yugoslavia

* HerschLauterpacht rofessor f International aw,Emeritus,The HebrewUniversity f Jerusalem.1Application f the Conventionon the Prevention nd Punishment f the Crimeof Genocide Bosn.& Herz.

v. Serb.& Mont.),Judgment Int'lCt.JusticeFeb.26, 2007) [hereinafter enocideConventionJudgment]Thedocumentsof the Court referredo in this Note areavailable t the ICJWebsite, <http://www.icj-cij.org>.

2The term Yugoslavia ill henceforthbeusedto designatenot onlythe Socialist ederalRepublicofYugo-slavia SFRY),whichexistedprior o thecountry's isintegrationntheearly1990s,butalso he FederalRepublicof Yugoslavia f theyears1992-2000 (FRY-I),and thestateof the samename admitted o the UnitedNationson November1, 2000 (FRY-II).At theUnitedNations,FRY-Iwasusually eferredo at the timeas the Federal

Republic fYugoslaviaSerbia ndMontenegro). RY-IIofficially hangedts nameon February, 2003, to Ser-biaandMontenegro, nd,on the atter's ecession nJune3, 2006, became he Republicf Serbia. Montenegrowasadmitted o the United Nations on June28, 2006, by GeneralAssemblyResolution60/264.

3

Macedonia'sdmissionothe UnitedNationswasdelayedbytheoppositionofGreeceo the nameof the coun-try,which sidentical o thatof the northernregionof Greece nd s claimedbyit on historicalgrounds.Eventually,Macedoniawasadmittedunder he provisional ame FormerYugoslavRepublicof Macedonia, with the sur-realisticacronym FYROM, hichhassurvived o thepresentday,thusconfirming nceagain he correctnessfthemaxim rienne durequele provisoire.

800



2007] NOTESAND COMMENTS 80 1

(FRY-I)was continuinghestate, nternationallegalandpoliticalpersonality f theSocialist

FederalRepublicof Yugoslavia, nd notified he UN secretary-generalccordingly.4

Thegrowingnternationalevulsion t thewidespreadtrocitiesperpetratednvariouspartsof theformerSFRY, esponsibilityorwhichwasgenerallyaidat thedoorstepof the Serbian-

dominatedgovernment f FRY-I,promptedvariousgovernments primarilyn Europeand

NorthAmerica) o question hevery egitimacy f FRY-Ianditsright o a seatat the United

Nations,andto suggest hat Serbia ndMontenegro like he otherrepublics f the former

SFRY) houldseek UN admissionas a new member.5

ManyotherUN members,however,wereopposed o thisposition,whichwastaken, nter

alia,bytheUnitedStates.Those countries(prominent mong hemtwopermanentmembers

of theSecurityCouncil,the RussianFederation ndChina)rejected nyattempt o suspend

(letaloneexpel)FRY-I rom the Organization.On May30, 1992, the SecurityCouncil,inResolution 57, notedthat the claimof FRY-I tocontinuing] automatically he member-

shipof the formerSFRY n the UnitedNations hasnot beengenerally ccepted. 6n Res-

olution777 of September 5, 1992, the Councilwentonestepfurtherbydeclaringhat the

stateformerly nownas the SocialistFederalRepublicofYugoslavia as ceased o exist, and

thenrepeatedhejust-quotedanguage f itsResolution757.7TheCouncilthereforeecom-

mended o the GeneralAssemblyhatFRY-I houldnotparticipatenthe workof the General

Assembly ndthat t shouldapply ormembershipnthe UnitedNations.The GeneralAssem-

bly,on thefollowingday, nResolution 7/ 1 adopted heserecommendationsytheSecurityCouncilbut,significantly, idnot repeat he Council's tatement hat the formerSFRYhad

ceased o exist.Inretrospect,t emergeshatthesehybridresolutions,epresentingpolitical ompromise,

lie at the root of thegrave egaldifficultieshat havealso confronted he InternationalCourt

ofJusticeon this mattereversince.

On September29, 1992, the under-secretary-generalnd legal counselof the United

Nations,respondingo arequestby Bosnia-Herzegovinand Croatia o clarify helegalsit-

uationcreatednthewakeof theadoptionbythe GeneralAssembly f Resolution 7/ 1 stated

thattheonlypractical onsequence f thatresolutionwas thatFRY-I ouldnotparticipaten

4

UN Doc.A/46/915, AnnexII,Declaration(Apr.27, 1992),at4, para.1 (May7, 1992).A different iewwastakenasearly s1991bytheArbitration ommission f the International onferenceorPeacenYugoslaviastab-lishedbytheEuropeanCommunity. n itsOpinionNo. 1 (Nov. 29, 1991),31 ILM1494, 1497,para.3 (1992),it stated hattheSFRY is n theprocessof dissolution. n OpinionNo. 8 (July4, 1992), it concluded hat the

process f dissolutionof the SFRY .. is nowcompleteand that the SFRYno longerexists. d. at 1523, para.4.In itsOpinionNo. 9 of the samedate, t added hat [n]ew tateshavebeen created n theterritory f the formerSFRYandreplacedt. All aresuccessor tates o the formerSFRY. d. at 1524, para.1. While all theseopinionsweregivenprior o theadoptionofSecurityCouncilResolution 77 ofSeptember5,1 992, andof GeneralAssem-

blyResolution 7/1 of thefollowingday,neither heUN legalcounsel nhislegalopinionof September 9, 1992,seeinfranote8, nor the International ourtofJustice n its variousYugoslavia-elatedpronouncements,awfit to

relyon thoseopinions.Theyapparentlywereof the view rightly, n the author'sopinion thatthequestionofFRY-I'sUN membershipmustbe resolvedwithin the framework f the UN Charter,he relevant esolutions, ndtheestablishedpractice f the Organization.

5See to this effectthe statementof U.S. Ambassador erkins n the UN GeneralAssembly.

UN Doc. A/46/

PV.86,at 22 (May29, 1992) He pointedlyadded hat, or tsadmissiono the UnitedNations, the o-calledFed-eralRepublicof Yugoslavia ould have to prove hatit was apeace-loving tate,one of the requirementsaiddownin Article4(2) of the Charter or the admissionof new members.

6SC Res.757, pmbl. (May30, 1992).7SC Res.777, pmbl. (Sept.25, 1992).



802 THEAMERICANOURNAL FINTERNATIONALAW [Vol. 10 1:800

the work of the GeneralAssembly and its subsidiaryorgans, or in conferences and meetingsconvened by it, but could participatein the work of all other UN organs.At the same time, he

stressedthat the resolution neither suspended nor terminated the membership f Yugoslaviain the United Nations. Consequently, its seat and nameplateremained as before (though the

FRY-Irepresentativeswere not allowed to sit behind the sign Yugoslavia ).Yugoslavmissions

and offices could continue to function and could receive and circulate official documents. At

UN headquarters, he flagof the former SFRY(with the five-pointed redstar of the Commu-

nist era in the middle) would continue to fly, as it is the last flag of Yugoslaviaused by the

Secretariat. 8

Clearly,here was an attempt to squarethe circleand to make some sense of apatentlyabsurd

situation.IfYugoslaviahadbeen neithersuspendednorexpelled,why was it told to seekadmis-

sion as a new member?And what could justify a resolution barring t from participationin theGeneralAssembly'swork, while its annual contributions to the UN budget were included in

the scales of assessments of UN members approvedby the Assembly?In the author'sopinion,FRY-I ndeed remainedafull member of the United Nations and therewas no validlegalreason

for themeasures akenagainst t bythe GeneralAssemblyunder Resolutions47/ 1and47/229. 9

The anomalous situation concerning Yugoslavia'sstatuswithin the United Nations came

to anendwhen, following the ousterof SlobodanMilosevic andhis regimein September2000,

VojislavKostunica ascendedto the presidencyof Yugoslavia.By a letterof October 27, 2000,

Kostunicaapplied forYugoslavia'sadmission to the United Nations [i]n the wake of funda-

mental democratic changesthat took place in the FederalRepublic of Yugoslavia. . . [and] in

8LetterDated29 September 992 from heUnder-Secretary-General,heLegalCounsel,Addressedo the Per-manentRepresentativesf BosniaandHerzegovinandCroatia o the UnitedNations,UN Doc.A/47/485, annex

(Sept.30, 1992) [hereinafter egalCounsel'sLetter]. t mightbe addedhere that on May5, 1993, the General

Assembly,n Resolution 7/229, actinguponthe recommendationn SecurityCouncilResolution821 of thepre-viousday,decided hatFRY-I shallnotparticipaten the workof the Economicand SocialCouncil[ECOSOC]Somemonths ater, he GeneralAssemblywent evenfurther yreaffirming esolution 7/1 andurging MemberStatesand the Secretariatnfulfilling hespiritofthatresolution,o endthe de factoworking tatusof Serbiaand

Montenegro. GA Res.48/88, para.19 (Dec.29, 1993) (emphasis dded).Surprisinglyndratherironically,heGeneralAssemblydid not apply his recommendationo itself,foronlysixdaysprior o the adoptionof this res-

olution, thadpassedResolution 8/223, inwhich t decided hat he rates f assessment f Macedoniaortheyears1993and1994shouldbe deducted romthose of Yugoslavia or thoseyears.GA Res.48/223, para.4 (Dec.23,

1993).The Secretariat'srustration t the confusioncreated verFRY-I'smembershiptatus s alsowell reflectedin thereportof thesecretary-generalfJanuary , 1994,where t ispointedout thatthemeaningof thephrase toend the de factoworking tatusof Serbia ndMontenegro adnotbeendefinedbytheGeneralAssembly ndthatthe Secretariats not in a positionto takeactionwithregardo questions elating o the statusof MemberStatesin theabsenceof theappropriateecisionsbeingtakenby thecompetentorgansof the Organization. N Doc.

A/48/847, para.16 (Jan.7, 1994).JS«?YehudaZ.Blum,UNMembershipf he New Yugoslavia:ontinuityrBreak'86AJIL 30 (1992);Yehuda

Z. Blum,Replyo Correspondents'gora:UNMembershipftheFormerYugoslavia,7 AJIL240, 248 (1993). Forthe rates fassessment f FRY-I'sontributionsothe UnitedNations ntheyears1992-2000, seetheCourt'sjudg-ment nApplicationorRevisionofthefudgmentoflljuly 1996 in theCaseConcerningpplication ftheConventionon the Prevention ndPunishmentof the Crimeof GenocideBosnia ndHerzegovina. Yugoslavia),reliminaryObjections Yugo. .Bosn.-Herz.), 003 ICJREP. , 22-23, paras. 5-48 (Feb.3) [hereinafterpplicationorRevi-

sion] .

It shouldbe noted that FRY-I's xclusion romparticipationn the workof the GeneralAssembly andsubse-quently n the workof ECOSOC) asexplainedbythe fact that its claimto be the continuator tateof the SFRY

hasnot beengenerally ccepted. his differs rom he exclusion fSouthAfrica romparticipationnthe General

Assembly'swork rom1974 until theendof theapartheidra,whichwasbroughtaboutthrough herejectionbythe GeneralAssemblyof South Africa's redentials.For a survey and criticism)of the South Africancase,seeYehuda Z. Blum, Eroding the United Nations Charter 43-55 (1993).



2007] NOTESAND COMMENTS 803

light of theimplementationof theSecurityCouncilresolution777 (1992)l0the resolution that

had statedthat the SFRY no longer existed and that FRY-I should applyfor UN membership.

In Resolution 1326 of October 31, 2000, the Council made reference to Kostunica'sappli-cation and then recommended that the GeneralAssemblyadmit the FederalRepublicofYugo-slavia to the United Nations. The following day the GeneralAssembly, in Resolution 55/12,

having both received he recommendation of the SecurityCouncil and consideredhe applica-

tion, then admitted Yugoslavia(FRY-II)to the Organization by acclamation.11

While this development prospectivelyregularizedYugoslavia's status within the United

Nations as a new member of the Organization, it still did not clarifyYugoslavia'sstatus ret-

roactively or the period 1992-2000. In fact, the situation created in 1992 by the General

Assembly, upon the Security Council's recommendation, as described above, continued to

plaguethe International Court of Justice,which had been drawninto consideringthis hiatus

on two occasions, in 1993 and 1999, when proceedingswerebroughtbefore it in the Genocide

Conventioncase and the Legalityof Useof Forcecases, respectively.With the exception of its

judgment on the preliminary objections in the Genocide Conventioncase, all the remaining

judgments in these cases were delivered after FRY-II's admission to the United Nations.

II. The Cases

Genocide Convention (PreliminaryObjections)- 1996 Judgment

On March20,1993, Bosnia-Herzegovinainstitutedproceedings against

FRY-I n the Geno-

cide Convention ase.In its firstjudgment in the case,deliveredon July 11, 1996, and rejectingall six of FRY-I'spreliminaryobjections to its jurisdiction,12 he Court did not have to address

whetherYugoslaviawas a member of the United Nations at the time, since the parties,for dif-

ferent reasons,had not raisedthe issue. Bosnia-Herzegovina, as the applicant, obviously did

not wish to challenge the Court's jurisdiction. For its part,FRY-I considered itself the contin-

uatorstate of the former SFRY(asdistinct fromone of its successortates)and, assuch, a member

of the United Nations and, byvirtueof that membership,apartyto the Court'sStatute.13The

Court, apparentlybasing itself on the legal counsel's letter referredto above,14proceeded on

the assumptionthat FRY-Iwas indeed a member of the United Nations afterSeptember 1992.

Application for Revision 2003 Judgment

Following its admission to the United Nations on November 1, 2000, FRY-IIrequested,on April24, 200 1 a revision of the 1996 judgment in the GenocideConventioncase,claimingthat its admission as a new member was in the nature of a new fact within the meaning of

10UN Doc. A/55/528-S/2000/1043, annex(Oct.30, 2000) (emphasis dded).11GARes. 55/12 (Nov. 1, 2000), available t <http://www.un.org/Depts/dhl/resguide/r55.htm>.

Application f the Conventionon the Prevention nd Punishment f the Crimeof Genocide Bosn.& Herz.v.

Yugo.),Preliminary bjections,1996

ICJREP.

95 (July1

1) [hereinafter996

Judgment].nthe courseof the

proceedings, RY-Irelinquishedhefourthof itsoriginal evenpreliminarybjectionso theCourt'sjurisdiction.3UnderArticle 3(1)of the UN Charter, AllMembers f the UnitedNationsareipsoactopartiesotheStatute

of theInternational ourtofJustice. Article35(1) of the Statuteprovides hat [t]heCourtshallbe opento thestatesparties o thepresentStatute.

SeeLegalCounsel'sLetter, upranote 8.



804 THEAMERICANOURNAL F INTERNATIONALAW [Vol. 10 1:800

Article 61 of the Court's Statute, and thus justified such a revision. More specifically,FRY-II

arguedthat, as a result of the said admission,

dilemmas concerning its standing [in the United Nations] have been resolved,and it has

become an unequivocal fact that theFRYdid not continuethepersonalityof theSFRY,was

not a Memberof the United Nations before1 November2000, [and] wasnot a Statepartyto

the [Courts] Statute ....

The admission of the FRYto the United Nations as a new Member clearsambiguitiesand sheds a different light on the issue of the membership of the FRY in the United

Nations, [and] in the Statute . . . .15

The Court rejected the application for revision, finding that FRY-II's admission to the

United Nations was not a newfact that was revealed fterdeliveryof the 1996 judgment.According to the Court, in 1996 it was well-known that

the FRYhad to submit a requestfor admission to the United Nations as had been done

by the otherRepublicscomposing the SFRY. . . . [W]hat remained unknown inJuly 1996

was if and when the FRYwould apply for membership in the United Nations and if and

when that applicationwould be accepted, thus terminatingthe situation createdby Gen-

eralAssembly resolution 47/ 1

. . . GeneralAssembly resolution 55/12 of 1 November 2000 cannot havechanged ret-

roactively the sui generisposition which the FRY found itself in vis-a-vis the United

Nations over the period 1992 to 2000, or itsposition in relation to the Statute of the Court16

In his dissenting opinion, however,JudgeV. S. Vereshchetin concluded that theCourt, in

1996, based its jurisdiction on the assumption that Yugoslaviawas at that time a Member of

the United Nations. Subsequent events . . . have clearlydemonstrated that the assumptionmade by the Court waswrong. The fact is, he emphasized, Yugoslaviawas not a Member of

the United Nations in 1996. This fact constitutes 'the new fact' for the purposesof Article 61

of the Statute. 17

Likewise,JudgeFranciscoRezek,in his Declaration which in factamounted to adissent-

ing opinion), expressedthe view that theentity over which the Court affirmedits jurisdictionin the Judgment of 1 1 July 1996, an entity comprising part of the former Socialist [Federal]

Republic of Yugoslavia,could not at that time claim to have been a Member of the United

Nations, [and] a party to the Statute. 18Judge Rezek then added that

15Application orRevision, upranote 9, 2003 ICJREP.at 12, para.8 (emphasis dded).

16Id. at 31, paras.70-71.17Id. at 50, para.28 (Vereshchetin, ., dissenting).JudgeVereshchetin lsopointedto the inconsistency f

Bosnia-Herzegovina'sosition,whichaffirmedFRY-I'sUN membershipor thepurposeof suing t in the Inter-nationalCourtofJusticebutdenied t outside heCourtatallotherUnited Nations and other nternationalora.

Id. at45-46, para.16.Yugoslav udgead hocDimitrijevic lsodissented romthe Court'sjudgment, tating hatFRY-Ihad at no time been a continuator f the formerSFRY,was not a memberof the United Nations beforeNovember1, 2000, and thushad no access o the Court n 1996.Id. at63-64, paras. 8-49 (Dimitrijevic, .,dis-

senting)JudgesVereshchetin,Rezek,andDimitrijevic otedagainsthejudgment's ispositif, hichwassupportedbytenjudges. d. at 32, para.75.

18Id.at 51, para.3 (Rezek, ., dec).




the FederalRepublicofYugoslavia, ne of the newestMembersof the UnitedNations,is not the entityconsideredbythe Court to be the Respondent n theJudgmentof 1 1

July 1996. Accordingly, the new Yugoslaviadoes not havestandingto seek revision.It is notaparty to thedisputesubmitted to the CourtbyBosnia and Herzegovina.It will be for the

Court odecideat theappropriateimewhether hatdisputes extant nthe absence f the

Respondent.19

Inall ikelihood, theappropriateime orsucha determination ouldhavebeen,at the atest

inJudgeRezek's iew,in theCourt's2007 judgmentn the case.Sincehe hadalready pinedinthe2003ApplicationorRevisionjudgment hatFRY-II thenewYugoslavia )asnot the

entityconsideredby the Court as the respondentn 1996, had he still been on the Court's

bench n 2007, he would doubtlesshave found that the disputesubmitted o the Courtby

Bosnia-Herzegovinan 1993 wasno longerextant in the absenceof the Respondent. 20

Legality f Use of Force 2004judgments

On April29, 1999, FRY-I nstitutedproceedings gainsta groupof NATO states,essen-

tially or the bombardment f itsterritory,n connectionwith the Kosovocrisisprevailing t

the time.21 n itsjudgments f December15, 2004, in theLegality f UseofForce ases,22he

Courtwascalledupononceagain o addresshequestionofYugoslavia's N membershipn

theyears1992-2000. Accordingo theCourt,whetherSerbia ndMontenegrowasorwasnot

aparty o theCourt'sStatutewhen the instantproceedingswere nstitutednApril1999was

fundamental;orif it werenotsuchaparty, heCourtwould not beopento it underArticle

35, paragraph of the Statute. 23 heCourt hen notedthat it s,andhasalwaysbeen,com-

mongroundbetween he Parties hatSerbia ndMontenegro asnot claimed o havebecome

aparty o theStatuteonanyotherbasis hanbymembershipntheUnitedNations. 24 efer-

ringto theratherconfusedand complexstate of affairs hat obtainedwithin the United

Nationssurroundingheissueof thelegalstatusof theFederalRepublicofYugoslavian the

Organization 25uring heyears1992-2000, the CourtfoundthatwithFRY-II's dmission

to the United Nations as a newmember, it becameclear hat thesuigeneris ositionof the

19Id. at 52, para.6 (emphasis dded).20

JudgeRezek's ermexpiredbefore he Courtdeliveredtsjudgmenton February6, 2007, in the GenocideConventionase.

21FRY-I iled enseparate pplications gainstNATO membersBelgium,Canada,France,Germany, taly, he

Netherlands, ortugal,Spain, he UnitedKingdom,and the United States.ByordersofJune2, 1999, the Courtremoved heapplicationsgainst painand heUnitedStatesrom he ist,on theground hat itmanifestlyack[ed]

jurisdiction. egality f Use of Force(Yugo.v. Spain),ProvisionalMeasures, 999 ICJREP.761, 773, para.35

(June 2); Legalityof Use of Force(Yugo.v. U.S.), ProvisionalMeasures,1999 ICJREP.916, 925, para.29

(June 2).22The Courtdeliveredeight separate, utvirtuallydentical, udgments.Reference ereandsubsequentlywill

be made o thejudgmentnLegality fUseofForceSerb.& Mont. v.Belg.),Preliminary bjections, 004 ICJREP.279 (Dec. 15).

23Id at299, para.

46.24Id. at301, para.52.25Id. at308, para.73.TheCourtpointedoutthat, n characterizingRY-I's tatusat the UnitedNations n the

years1992-2000 as suigeneris atermusedbythe Courtasearlyas2003 in theApplicationorRevisionase), twasusing anguage merely escriptivef theamorphoustateof affairsnwhich he FederalRepublic fYugoslaviafound itselfduring hisperiod. d., para.74.




JudgePieterKooijmans(yetanothersignatoryof the joint declaration) in his separateopin-

ion, seems also to have clearlyforeseen the inherent contradictions that would confront the

Court when facing the GenocideConventioncase on its merits, stating:

The arguments made by Serbia and Montenegro in the Application for Revision

case and in the present cases are virtually identical, and thus establish a close link

between the Genocide Convention case and the present cases. ... It is, therefore, . . .

remarkablethat, in spite of the fact that this link is now undeniable, the Court, in its

present Judgment, has chosen an approach which is not in line with the approachtaken in 1999 and 2003 and which inevitably has implications for the Genocide Con-

vention case.33

In his separateopinion, JudgeElaraby alsoasignatoryof thejoint declaration)stronglycrit-

icized the Court's approach:

Whereasthe SecurityCouncil and the GeneralAssemblywereacting in apoliticalcapacitywhen the relevantresolutions were adopted, the Court,throughouthe variousphasesof the

cases elated otheformer Yugoslavia,houldhaveconsistentlytatedandappliedtheapplicablelaw. This approachwould haveyielded an outcome consistent with the law of the Charter

and the establishedpracticeof the United Nations and, I believe,would have led the Court

to find that the FRY was a member of the United Nations when, in 1999, it filed its appli-cation in the instant case.34

By contrast,Judge ad hoc Kreca,35n his separate opinion, stressedthat,

[b]y submitting [in 2000] the application for admission to membership in the United

Nations, Yugoslavianot only renounced the claim to legal identity and continuity but

claimed at the same time to be acceptedasanew State in the senseof some other, different

legal personality asuccessorState versuspartialcontinuation of the former SFRY from

the one claimed until the year2000. . . .

. . . The admission of Yugoslaviato membershipof the United Nations from 1Novem-

ber2000 also meant the acceptanceof the claim of Yugoslavia o be acceptedasa new State

in the sense of a new internationalpersonalitydifferent from its hybrid and controversial

personalityin the period 1992-2000.36

itsjurisdiction, d.at297, para.43, the Courtheld that for this and otherreasons laboratedn thejudgment, tcannot emove he casesconcerningLegality f UseofForce romtheList,or takeanydecisionputtingan end to

those cases n limineUtisT d. at 297-98, para.44.

Addressinghisquestion n his separate pinion,Judgead hocKreca tated hatwhere he Courthas effective

jurisdiction,ummary emovaln limine itis attherequest f therespondent isunacceptable. ssuch,summaryremovalwouldbe in sharp ontradictionwiththedutyof the Courtto examine x officio thequestionof itsjuris-diction ... [I] mightevenbe said hatsummary emovalnsuchcircumstances ouldhave hemeaningof a kindof denialof justice. d. at415-16, para.66 (Kreca, ., sep. op.).

33Id. at 346, para.9 (Kooijmans, ., sep. op.).3 Id. at 357-58, para.13 (Elaraby, ., sep. op.) (emphasis dded).JudgeElarabyoinedthedispositifbecause,

in hisview,

theCourt ackedurisdiction

ationemateriae. d. at370, pt.

V.35Theonlyjudgead hoc n thesecaseswasJudgeKreca, ince heCourt,pursuantoArticle31 5)of theStatute,

haddecided . . that,taking nto account he presenceuponthe Bench of judgesof British,Dutch andFrench

nationality,hejudgesad hocchosenbytherespondent tates houldnot sit during he currentphaseof thepro-cedure n thesecases. Legality f Use of Force,supranote 22, 2004 ICJREP.at287, para.18.

36Id. at388-89, paras.27-28 (Kreca, ., sep. op.).




GenocideConvention 2007Judgment

Initsjudgmentof February6, 2007, the CourtnotedthatwhenYugoslavia'sreliminaryobjectionswereconsideredn 1996, neitherpartyhadraised he issueof FRY-I'sUN mem-

bershipat the time:

BosniaandHerzegovina sApplicant,whiledenying hat the FRYwas a Memberof theUnitedNationsasa continuator f theSFRY,wasasserting efore hisCourt hat he FRYwas nevertheless party o the [Court's]Statute . . ; and for the FRY o raise he issuewould have nvolvedundermining rabandoningts claim to be the continuator f theSFRYasthe basis orcontinuingmembership f theUnitedNations.37

Referringo theApplicationor Revision ase,the Courtthen noted thatitsjudgment here,

whilebindingbetween heparties, . . didnot containanyfindingon thequestionwhetherornot thatState[i.e., FRY-I]hadactuallybeen a Memberof theUnitedNationsin 1993. 38

Afteranalyzinghemeaningandpurposeof theprinciple f resjudicata, he Courtstated hat

it appliedequally o judgmentson preliminary bjectionsand to those on the merits.39

Addressinghen thescopeof resjudicata n its 1996judgment, he Court oundthat it did

not apply ustto theYugoslavpreliminary bjections xplicitly ejectedby it at the time. In

1996theCourtwasnot unaware f the factthat thesolutionadoptedn the UnitedNations

to thequestionofcontinuation f themembershipf the SFRY[was]not free romlegaldif-

ficulties', s theCourthad noted n itsOrderof 8April1993indicatingprovisionalmeasures

inthecase. 40

Accordingo theCourt, hese

'legalifficulties' . .were

inallydissipatedwhen

in2000 theFRYabandonedtsformer nsistence hat t wasthe continuator f theSFRY,and

appliedormembershipntheUnitedNations. 41 heCourtwent on to mention ts decision

in theLegality f UseofForce ases o the effect that from hevantagepoint of 2004 it had

becomeobvious hat FRY-Ihadnot been a member tateof the UnitedNations,42 nd then

ruledasfollows:

Since . . thequestionof a State'scapacityo be aparty o proceedingss a matterwhich

precedeshatofjurisdictionationemateriae,ndone whichtheCourtmust, fnecessary,raise xofficio. . . , thisfindingmust as a matterof construction eunderstood, ynec-

essarymplication,o mean hattheCourtat thattimeperceivedheRespondent sbeingin apositionto participaten casesbefore he Court. On that basis t proceededo makeafindingonjurisdiction hichwouldhave heforceof resjudicata. . . Whetherhe Parties

classifyhe matteras one of accesso the Court orof jurisdictionationepersonaey\hefactremains hatthe Courtcouldnot haveproceededo determinehe meritsunless he

Respondent adhadthecapacity nder heStatute obe aparty oproceedings efore heCourt.43

The Courtcontinuedbystating:

37GenocideConventionJudgment, upranote 1, para.106.38Id, para.113.

3y/^.,para.117.40

Id, para.130.41

Id, para.131.42Id45

Id, para. 132.



2007] NOTESANDCOMMENTS 809

That the FRY had the capacityto appearbefore the Court in accordance with the Statute

was an element in the reasoningof the 1996 Judgment which can and indeedmust be

read nto theJudgmentas a matterof logicalconstruction.That element is not one which canat any time be reopened and re-examined . . . .44

Sensing that it still had to reconcile this decision with its 2004 judgments in the LegalityofUseofForcecases, the Court ratherlaconically added:

As regardsthe . . . 2004 Judgments . . . , it should be borne in mind that the concern of

the Court was not then with the scope of resjudicata of the 1996 Judgment, since in

any event such resjudicata could not extend to the proceedings in the cases that were

then before it, between different parties.It was simply appropriate n 2004 for the Court

to consider whether there was an expresslystatedfinding in anothercase that would throw

light on the matters before it. No such express finding having been shown to exist, theCourt in 2004 did not, as it has in the presentcase,have to go on to considerwhat mightbe the unstated foundations of a judgment given in another case, between different

parties.45

Not surprisingly,the Court's reliance on resjudicata to resolve the obvious contradiction

between the 2004 judgments in the Legalityof UseofForcecases and its 2007 judgment in the

GenocideConventioncase evoked strongreservationsamong some of the judges. In fact, five of

the fifteenjudgesvoted againstthe dispositifon the matter of jurisdiction,46and even one judgewho voted in the majority (Vice-PresidentAwn ShawkatAl-Khasawneh)took issue with the

Court'sreasoningin his dissentingopinion. In hiswords, Mydisagreementwith the majority. . . relates not only to their conclusions but also to the very assumptions on which their rea-

soning is based and to their methodology for appreciatingthe facts and drawing inferences

therefrom . . . , 47He pointed out that the relevantSecurityCouncil and GeneralAssemblyresolutions were compromises that fell short of terminating or suspending the SFRY'smem-

bership n the United Nations,48that there had alwaysbeen statesthatrecognizedFRY-I as the

continuatorof the SFRY,and that FRY-Ihad been treated de facto by the GeneralAssemblyassuch.49Vice-President Al-Khasawneh concluded that, [s]eenfrom this angle, the admis-

sion of FRY-IIin 2000 does not mean that FRY-Iwas not a UN member. Rather,the act of

admission confirms that it had been an old member by way of continuity until it abandonedthat claim and took on the status of a successor. Thereforethe FRY was a continuator in 1992

to 2000 and a successor after its admission in 2000. 50Criticizingthe Court'sapproachin the

Legalityof UseofForcejudgments, Vice-President Al-Khasawneh stated that the caution that

had for better or worse alwayscharacterized he Court's approachto the issue of Yugoslavia's

membershipwas thrown to the wind. . . . [T]he majorityfound in those closely relatedcases

anescaperoute which was usednotwithstanding the impactthat this would haveon the present

44Id.ypara. 135 (emphasis added).

45Id.

46Jtf, para.471.7

Dissenting Opinion of Vice-PresidentAl-Khasawneh,Genocide Convention Judgment, supranote 1, para.3.48

Id., para. 6.49

Id., para. 8.50

Id., para. 11.



8 10 THEAMERICANOURNAL F INTERNATIONALAW [Vol. 101:800

case. 51He then castigatedthe majorityfor having contributed to confusion and contradic-

tions between these different, though related, cases, and even between the different phases

in the presentcase with the resultthat, with the contagion spreading,and those contradictions

being quoted back at the Court, the only thing the presentJudgment could do was to take ref-

uge in the formalism of resjudicata. 52In theirjoint dissenting opinion, three of the judgeswho voted againstthe dispositifoxv he

jurisdictional issue (Judges Raymond Ranjeva,Shi Jiuyong, and Abdul Koroma) expressedseriousmisgivings about the majority'sreliance on the principleof resjudicata by necessary

implication, assertingthat the Court was thus sidestepping the question which . . . [has]a

bearingon the existence ornon-existence of itsjurisdictionat the time theApplicationwas filed

in this case:namely, whether or not Serbia and Montenegro (the Respondent) was a United

Nations Member. 53In addition, they continued,in relyingon resjudicata as a basis of itsjurisdiction rationepersonae,heJudgment impliesthat the issue of access was considered and decided, but the issue of access was not even

addressed,let alone decided, in either the reasoning or the dispositifof the 1996 Judg-ment. ... A matter that the Court has not decided cannot be qualified as resjudicata.54

Citing the Court's unanimous judgments in the Legalityof UseofForcecases, in which it had

found that Yugoslaviahad not been a member of the United Nations in 1999, the three dis-

senting judges reasonedthat from both the factual and legalperspectives,it seems quite clear

that, if Serbiaand Montenegro was not a Member of the United Nations in 1999, then it must

alsonot have been a Member on 20 March 1993, when theApplication in this casewasfiled. 55They then concluded that, in the face of

a challengeby the Respondent in this case, that the Court lackedjurisdiction rationeper-sonaeoverit, judicialconsistencywould haverequiredthe Court to respondas it did in the

Legalityof UseofForcecases. The Court there felt bound first and foremost to examine the

questionwhether the Respondentwas or was not apartyto the Statute of the Court at the

time the proceedingswere instituted .... It is regrettable hat on this occasion the Court

chose to departfrom its own jurisprudence.56

In a similarvein, Judge Leonid Skotnikov, in what he termed a Declaration, noted:

In the 2004 Legalityof Useof Forcecases, the Court has acknowledged a certain legalreality,which exists independently from the wishes of the Court or the Partiesand which

cannot be any different in this case: Serbia and Montenegro had not been a Member of

the United Nations, and consequently, was not a partyto the Statute of the Court, before

it wasadmittedon 1November 2000 to the United Nations as a new Member underArti-

cle 4 of the United Nations Charter ....

51Id, para.14.JudgeAl-Khasawneh,t willberecalled,wasone of the sevenjudges n theLegalityfUseofForcecaseswho, whilevotingfor the unanimousdispositif n theirjoint declaration issociated hemselves rom theCourt'sreasoning. eenote29 supra.

52DissentingOpinionof Vice-President l-Khasawneh, ara.28.

3JointDissentingOpinionofJudgesRanjeva, hi andKoroma,GenocideConventionJudgment, upranote1, para.2.

54Id, para.3.55Id, para.13.56

Id, para.17.



2007] NOTESANDCOMMENTS 8 1 1

However, what the Court's reasoningin the presentcase means is that, by applicationof the principleof resjudicata in incidental proceedings,the Court can createparallelreal-

ities: namely, in this case, . . . the existence of access to the Court by the Respondent byvirtue of its finding on jurisdiction in the 1996 Judgmenton PreliminaryObjections....

The notion that the issue of accessby the Respondent to the Court underArticle 35,

paragraph1 of the Statute must be considered ashavingbeen dealtwith in the 1996 Judg-ment, although it undoubtedly was not, is a furtherblow to the realitywhich, accordingto theJudgment, may be alteredas amatterof logical construction if the integrityof the

principle of resjudicata so requires. . . ?7

In his separateopinion, Judge ad hoc Kreca of Serbia(the fifth judge to vote againstthe dis-

positifon thejurisdictionissue) while acknowledgingthat theLegalityof UseofForcejudgmentsdid not constitute res

judicatain the instant

case,58ndicated that the Court should have fol-

lowed its reasoning in those judgments, which inevitablywould have led to the conclusions

reached n thosejudgments. The main reason for this argumentis that the relevant ssue was

the Respondent a member of the United Nations at the materialpoint in time [in the period

1992-2000] and, assuch, a partyto the Statute of the Court in the identical form, followed

byidenticallegal consequences, isposed in both cases. 59Criticizingthe contradictionbetween

the reasoningand conclusions of the 2004 judgments, on the one hand, and the majority udg-ment in the instant case,on the other hand,JudgeKrecastated: The [Court's]reasoning sug-

gests that quidquid udicii placuityhabetlegis vigor m. It reflectsthe anachronisticand totally

unacceptable dea that the Court is not the guardianbut the creatorof legalityand, in fact, that

the Court makes decisions independently from objective law establishedby its Statute. 60

III. Appraisal

Between the institution of proceedingsby Bosnia-Herzegovinain the GenocideConvention

case on March20, 1993, and the Court'sjudgment on the meritson February26, 2007, almost

fourteen yearselapsed. The watershed event in the four Yugoslavia-related udgments of the

Court surveyed above, FRY-II's admission to the United Nations on November 1, 2000,

occurredabout halfway. As alreadyindicated, while the GenocideConventionand LegalityofUse

of

Forcecases were instituted before November 1, 2000, the

judgments

in the

Applicationfor Revision,Legalityof UseofForce,and GenocideConvention Merits were all delivered after

that date.

Over those fourteen years, twenty-seven judges,61 n varyingcompositions, participatedin

thejudgments rendered n the casesin question. Only threeof them (Judges Ranjeva,Shi, and

Koroma) sat on the bench in all four judgments. It is certainly noteworthy that these three

judges, in their joint dissenting opinion of 2007 in the Genocide Conventioncase,62strongly

57Declaration fJudgeSkotnikov,GenocideConventionJudgment, upranote 1, 1st3 paras.58

SeparateOpinionofJudgeKreca,GenocideConventionJudgment, upranote 1, para.48.59Id, para.51.60Id, para.59.61Thisfigure xcludes hejudgesad hoc orBosnia-HerzegovinaElihuLauterpachtn the 1996judgment,and

AhmedMahiou n theApplicationor Revision nd the2007 judgment n the GenocideConventionases)and for

YugoslaviaVojinDimitrijevicn theApplicationor Revision aseandMilenkoKrecan the remaining ases).Seenotes53-56 supra ndcorrespondingext.



8 12 THEAMERICANOURNAL F INTERNATIONALAW [Vol. 10 1:800

dissociated themselves from the reasoning of the judgment on the jurisdictional issue and

pointed out the obvious inconsistency between thatjudgment and the Court's previous judg-

ment in the Legalityof UseofForcecases. These three judges were also among the five judges

(the othersbeingJudge Skotnikov and Serbia'sJudgead hocKreca)who voted againstthe dis-

positifon this question.63Moreover, these threejudgeswereamong the sevensignatoriesof the

joint declarationin the Legalityof UseofForcecases,which strongly criticizedthe judgment's

reasoning64while joining the unanimous decision of the Court that it had no jurisdiction to

entertain the claimsof Yugoslavia.65A perusalof the Court's 2007 judgment revealsthat even

the majority udgescould not hide their fundamental uneasewith the eventual outcome on this

issue in the Genocide Conventioncase; hence their tortured reasoning, their decision beingbased on the controversialargumentof the applicabilityin this instance of the principle of res

judicata, established by necessaryimplication, in the 1996 judgment.66If there is any common ground in this fourteen-year-long judicial saga, it is that FRY-II's

admission to the United Nations asanew memberof the Organizationmarkedaturningpointwith regard o theprospectiveegalstatus ofYugoslaviaat the United Nations. But farfrom clar-

ifying that statusretrospectively,he differingevaluations of that event, with regard o the years

1992-2000, have in fact further confused the legalissues involved.

When Ambassador Richard Holbrooke of the United States welcomed FRY-IIas the new-

est member of the United Nations, he stated thatYugoslavia hasenteredthe United Nations

familyon an equalbasis with the other Republicsof the former socialist Republic of Yugosla-via. 67On behalf of the

Groupof

Non-AlignedStates, the

representativeof South Africa

expressedsatisfaction that theprinciple of equalityamong the successor Statesto the former

Socialist FederalRepublic of Yugoslaviahas been accepted by all the parties. 68 n a similar

vein, the representativeof Macedonia spoke of the need for the speedy resolution of the suc-

cession of the formerSFRY, on the basisof the equality of all five successorStates, 69 s did

the representativeof Croatia when referringto FRY-II'sacceptance of the principle of the

equality of all the States that emerged after the dissolution of the former Socialist Federal

Republic of Yugoslavia. 70All thesestatements as well as the languagein President Kostunica'sapplicationfor admis-

sion tended to give the impression that FRY-II became a direct successor to the SFRY,thus

ignoring the practiceof the United Nations during the years 1992-2000, as outlined in the

63Seenote 46 supraandcorrespondingext.

Seesupranotes29-31.65Seesupranote 28.66As has been shownbyRosenne, heapplicability f the ruleof resjudicataderiving romjudgmentson pre-

liminaryobjections s problematicalven if a questionwas explicitlydecidedin the preliminary tage.2 & 3Shabtai Rosenne, The Law and Practice of the International Court, 1920-1996, at 883-87,1607-10 (4thed.2006). In theauthor's iew,theapplicabilityf this rule s even morequestionablewhen,in the

preliminarytage, heCourtdid not addressandthus didnot resolve) n issue or which the statusof resjudicatais stillclaimed bynecessarymplication, soccurredn the GenocideConventionase.

67UN Doc. A/55/PV.48, at 28 (Nov. 1, 2000). He alsoexpressedatisfaction hat [t]he lagof a nationthat

long agoceased o exist[that s, theSFRY]will no longer lyat United NationsHeadquartersereand elsewherein theworld. d.

68Id at31.69Id at32.70Id at 33.



2007] NOTESANDCOMMENTS 813

legal counsel's letter of September29, 1992.71There seem to lie the roots of the theory that

if FRY-II was a new member of the United Nations, on the basis of equalitywith the other

successor States to the SFRY,one had to deny the UN membership of FRY-I between 1992and 2000.

In theApplication or Revisioncase,the Court sidesteppedthis issueby narrowly ocusing on

the technicalquestionwhether FRY-II'sadmissionto the United Nations was a new fact jus-

tifying revision.Admittedly, FRY-II,while arguingthat it was a new internationalpersonalitywith a new legal identity, did not help the Court by insisting that the Court decide whether

it still hadjurisdiction in the GenocideConventioncase, the respondent having disappearedas

a legalpersonality.FRY-II's tactics became even more evident when it refusedto seek, as the

applicant,the discontinuance of the Legalityof UseofForcecases a courseof action that would

havebeen perfectly ogical forastateclaiming to be anew entity differentfromthat of the orig-inalapplicant.Instead,FRY-II(havingin the meantime changedits name to SerbiaandMon-

tenegro )once againleft it to the Court to determine its own jurisdiction, in a furtherattemptto force the Court's hand in advance of its judgment in the Genocide Conventioncase. The

Court then opted for the vantagepoint theory, in effect denying FRY-I's UN membershipin theyears1992-2000 anddismissing,on thatground, the Legalityof UseofForcecases.Thus,

the Court regardedas a decisive factor in its decision the admission of FRY-II to the United

Nations as a new state, while it had refusedto treat this event even as a simple new fact in

the Application or Revisioncase.

All these developments eventuallyculminated in the 2007 judgment in the GenocideCon-

vention case. The contradiction between the Legalityof UseofForcejudgments and the 2007

judgment in the GenocideConventioncase cannot simply be explained awayby the question-able invocation in the latter case of the principle of resjudicata in general,and its application

by necessary mplication to the 1996 judgment in particular.The 2007 judgment has also

broughtabout the curious resultthat the Court's explicitfinding in the Legalityof UseofForce

casesthat FRY-Iwas not a member of the United Nations in the 1992-2000 period was set

asidein the 2007 judgment byvirtue of the Court's reliance on an implicitassumptionaffirm-

ing such membership.Had the Court not embracedin the Legalityof UseofForcecasesthe concept that FRY-II's

admission to the United Nations as a new member necessarilymeant that prior to that dateFRY-I was a nonmember a concept acceptedby both the majorityand most of the minority

judges it might have arrivedat a much more consistent position from the point of view of

legalcogency. In the author'sopinion, such a coursewas in fact chartedby Vice-PresidentAl-

Khasawneh,in his dissenting opinion to the 2007 judgment in the GenocideConventioncase,

as follows:

Curiously, the fact of FRY admission to the United Nations in 2000 was viewed as ret-

roactively clarifying the Respondent's hitherto amorphous status vis-a-vis the United

Nations in favour of the conclusion that in the period 1992 to 2000 it was not a United

Nations Member. . . . Nothing could be more debatable.The logic of the argumentseemsat firstglanceto be straightforward:admission as a new Member means that the FRY was

not a Member before the date of admission. But here we arenot dealingwith a State that

71See Legal Counsel's Letter, supranote 8.



814 THE AMERICANJOURNALOF INTERNATIONALLAW [Vol. 101:800

had never been a United Nations Member. Rather we are facedwith a State that assidu-

ouslymaintainedit was the continuator of an originalUnited Nations Member and which

had to relinquisha strong claim to continuity and applyas a new Member in the sense ofa successor State. The distinction thereforeis not between a new Member and a non-

Member , but between a new Member and an old Member .72

Vice-President Al-Khasawneh continued this line of reasoning,asnoted above,by arguingthat

FRY-Ihad remained an old member by virtue of continuity until its admission in 2000 made

it a new member, or successor. Furthermore, he concluded, to argue that the SFRY was

extinguishedin 1992 and that the FRYwas a successor of the SFRYin 2000 without firstbeingits continuator in the intervening period creates a legal void ... of eight years, which is

absurd. 73

In reality,one could have gone even further. The successorstatus of FRY-II was forcedupon it by the 1992 resolutions of the SecurityCouncil and the GeneralAssembly,which had

been adopted without any /^/justification and in violation of the relevantprovisions of the

UN Charter.74As President Kostunica pointed out in his letter of application, the admission

of Yugoslaviato the United Nations was prompted, in the firstplace, inthe wake of the fun-

damental democraticchanges hat had takenplacethere.Thus, what trulyhappenedin Yugo-slaviain September-October 2000 was primarilya domesticconstitutionalchange of regime.FRY-II's status at the United Nations as a new state was in realitymore nominal than real,

adoptedwith a view to keepingup a fiction necessitatedbythe politicallymotivated resolutions

of 1992. Some evidence to this effect can also be found in the new state'spreservation

of its

name Federal Republic of Yugoslavia as well as its flag and national anthem; successor

states usually adopt new names, new flags, and new anthems for themselves.75It was only

72Dissenting Opinion of Vice-President Al-Khasawneh, supranote 47, para. 11.

73Id74Seesupranote 34 and corresponding text (criticism by Judge Elaraby, in his separate opinion in the Legality

of UseofForcecases, of the Court's conclusion that Yugoslavia's position at the United Nations in the years 1992-

2000 could not have amounted to membership in the Organization); seealsoDissenting Opinion of Vice-President

Al-Khasawneh, supranote 47, para.6 (referringto the UN legal counsel's letter of September 29, 1992, supranote

8, confirming FRY-I's continuing membership in the United Nations, as the only authoritative /^/appraisal of

the relevant Security Council and General Assembly resolutions, quotedin text at note 89 infra).

75To be sure, there are instances that do not conform to the generalpractice.When the UN membership of theCzech and Slovak Federal Republic lapsed on December 31, 1992, in the wake of the dissolution of Czechoslo-

vakia a UN founding member by mutual agreement of its two components, the two successor states the

Czech Republic and the Slovak Republic- were admitted to the United Nations as new members on January 19,

1993, by GeneralAssembly Resolutions 47/221 and 47/222, respectively.The Czech Republic retained the flag of

the former Czechoslovakia,while Slovakiachose that of the Slovak state established in 1939 (a fascist vassalof Nazi

Germany),with the Slovak coat of armssuperimposed on it. Since the national anthem of Czechoslovakia had con-

sisted of two parts one Czech and one Slovak each of the two new republics retained its own part. After the

dissolution of the Soviet Union in December 1991, the Russian Federation became its continuator at the United

Nations and took over its UN seat. Yehuda Z. Blum, RussiaTakesover the Soviet Union s Seatat the UnitedNations,3 EUR.J. INT'L L. 354 (1992). The former Soviet flag was replaced by the tricolor of the former Soviet Russian

Republic, while the former Soviet anthem was retained, albeit with a new text. The Federal Republic of Germanyof the post- World War II period restored the flag of the Weimar Republic; while it retained the tune of the former

anthem, the first stanza of the Deutschlandlied sung before 1945 was replaced by the third stanza.Of course,a mere change of name by a state does not usuallyentail achange of its international personality. Many

new states primarily n Asia and Africa changed their names in attempts to shed their colonial past. Forexample,in 1989 the military junta changed the name Burma to Myanmar (a name going back to the thirteenth century).The United Nations recognized the new name, but the United States, the United Kingdom, Canada, and Australia

have refused to do so, for fear of appearing to confer legitimacy on the ruling junta. The European Union refers to




because admission as a new statewas requiredto regularize he status of the FRY at thepolitical

organsof the United Nations that FRY-IIhad to make such arequest.The resultwasthe further

complication of analreadycomplex legalissuefor the InternationalCourt ofJustice, theprin-

cipaljudicial organ of the United Nations. 76

Having thus had the statusof a new memberof the United Nations forcedon it, FRY-IIthen

understandably riedto derive from this situation whatever benefit it could, insistingbefore the

Court, as it had been forced to do at the United Nations, that it had a new internationalper-

sonality, different from that of FRY-I. In this manner it tried to bring about the termination

of the proceedingsin the GenocideConventioncase.Having been rebuffedby the Court in this

attemptin theApplication or Revisioncase,it came closer to its goal in the Legalityof UseofForce

cases when the Court decided, fromthe vantagepoint of 2004, that FRY-I had not been a

member of the United Nations in 1999 (when it instituted

proceedings

in the case).The seven

judgeswho seriouslydoubted that the Court'sfinding regardingYugoslavia'snonmembershipin the United Nations in the years 1992-2000 was consistent with the decision in the Appli-cationfor Revisioncase must have alsohad in mind the implications for the then-pending deci-

sion in the GenocideConventioncase. AsJudge Higgins aptly put it, the impact of the Court's

decision and its relevance can ie, and only lie, in anotherpending case, 77meaning the Geno-

cide Conventioncase. It is certainlyrevealingthat the Yugoslav judge ad hocKreca also voted

for the unanimous decision in the Legalityof UseofForcecases.In the event, this outcome was

a convenient escaperoute for the Court, for it sparedit the need to entertain the merits of the

legallycomplex and controversialquestion of the use offeree by the respondentNATO coun-

tries againstYugoslavia.Moreover, some of the states involved in the NATO bombings ofYugoslavia(namely, Spain and the United States) were not subject to the Court's jurisdic-

tion;78had the Court gone into the merits of the case, it would have risked the possibility of

imposing responsibilityon only some of the statesout of the whole group that participatedin

those bombings. And even if the Court had been preparedto assume such a risk,it would still

havehad to face the possibilityof ruling againstsuch central members of NATO asthe United

Kingdom, France,and Germany.The situation was different in the GenocideConventioncase. Given the enormity of the

crimesperpetrated n Bosnia-Herzegovinain the 1990s (and, incidentally, also in other partsof the formerYugoslavia),responsibilityfor which was laid at the doorstep of FRY-I,it would

have been verydifficult for the Court, from the broadperspectiveof judicial public policy, to

discontinue the GenocideConventioncase on what would have been considered purely tech-

nical grounds. Such a decision would have been seen as an evasion of its responsibilityto givea judicial response to those atrocities. Even Judges Ranjeva,Shi, and Koroma, in their joint

dissenting opinion, found it necessaryto assertin a somewhat apologetic vein that ourposi-tion [that FRY-I was not a UN member in the years 1992-2000] is purely a legal one, not

Burma/Myanmar.ikewise,n 1972 CeylonbecameSri Lanka inSanskrit theresplendentand astheislandis describedn the MahabbaratandtheRamayana).

A curious ituationarose n 1984whenUpperVolta,a nonpermanentmemberof the SecurityCouncil n the

years1984-1985,

presidedver he Council n

August1984, and,

havingchangedts name n

September984to

Burkina aso(meaning the andof theuprightpeople nthe ocallanguages), resided ver tagain,under tsnew

name, n October1984.76UN CHARTERrt.92 (emphasis dded).77

Legality f Use of Force, upranote22, 2004 ICJREP.at 341, para.18 (Higgins,J., sep. op.).f Seesupranote 21.




involving any political or moral judgment in respect of the merits of the case. 79Thus, the

Court was caught between the Scyllaof Yugoslavia'snonmembership in the United Nations

in the years 1992-2000 and the Charybdis of resjudicata bynecessaryimplication of the1996 judgment.80The proverbialvirtual impossibility of navigatingbetween them was man-

ifestedin the instant caseby the obvious inconsistency in the Court's jurisprudence.As noted

above, the artificialnature of the Court's reasoning in the 2007 judgment, in its attempt to

assertjurisdictionin a cleardeparturefrom its decision in the Legalityof UseofForcecases,was

duly castigatedby the five dissenting judges.81The Court might have been more successfulin its attemptsat damagecontrol had it heeded

Judge (now President)Higgins's suggestion, contained in her separateopinion in the Legality

of Use of Force cases:

[T]he realquestion is not whether the Applicant [Yugoslavia]has or has not discontin-ued the case,norwhether the presentcircumstancesareexactlyidenticalto the few exam-

pleswhere the Court itself has removed a casefrom the List. . . . The question is whether

the circumstances are such that it is reasonable,necessaryand appropriatefor the Court

to strikethe case off the List as an exercise of inherentpower to protect the integrityof the

judicial process.

I believe the answer is in the affirmative.82

While the adoption of this suggestion might have spared the Court the embarrassmentof

inconsistency, it would still have led it, in all likelihood, to uphold its jurisdiction in the 2007

judgment in the GenocideConventioncase.In fact, this might verywell have been the intentionof Judge Higgins in the firstplace.

In the author'sview, given the irregularconduct of the SecurityCouncil and the General

Assembly in 1992, which forced the admission of Yugoslaviaas a new member in 2000, the

onlywayforthe Court to haveextricated tself from the confusion not of its own makingwould

have been the course thatJudge Rezeksuggestedasearlyas2003 in theApplicationor Revision

caseby raisingthe possibility that the dispute between Bosnia-Herzegovinaand FRY-Iwas no

longer extant in the absence of the Respondent. 83However, given the overall international

political climate, such an outcome was apparentlynot possible.At the United Nations Conference on InternationalOrganization,which met in San Fran-

cisco betweenApril25 andJune25, 1945, andadoptedthe United Nations Charter, theques-tion of the method of Charterinterpretationwas considered at some length. ... It was agreedthat no provision of an explicit natureshould be made in the Charter itself. 84However, the

conferenceapproveda statement on this matter, included in the reportof its Technical Com-

mittee, which stated, inter alia:

79JointDissentingOpinionofJudgesRanjeva, hi andKoroma, upranote 53, para.2.

In GreekmythologyScyllaandCharybdis re wowhirlpools o placedon theoppositesidesof theStraitofMessina hatseparatestalyproperandSicily hat t is hard o steerclearof onewithoutbeingcaughtbythe other.Hencetheproverb He who wishesto avoidCharybdis,alls nto Scylla, o show thatin oureagernesso avoidone evil,we often fall into a greater ne.

81Seesupranotes53-56 andcorrespondingext.82

Legality f Use of Force, upranote22, 2004 ICJREP.at 339, para.12 (Higgins,J., sep. op.).Seesupranote 19 andcorrespondingext.

84Leland M. Goodrich, Edvard Hambro, & Anne Patricia Simons, Charter of the UnitedNations: Commentary and Documents 14 (3d rev.ed. 1969).



2007] NOTESANDCOMMENTS 8 17

In the courseof the operationsfromdayto dayof the variousorgansof the Organization,it is inevitable that each organwill interpretsuch partsof the Charter as areapplicableto

itsparticular unctions. This processis inherentin the functioning of anybodywhich oper-ates under an instrument defining its functions and powers. . . .

Difficulties may conceivablyarise n the event that there should be a differenceof opin-ion among the organsof the Organizationconcerning the correctinterpretationof a pro-vision of the Charter. . . . Under unitaryforms of national government the final determi-

nation of such a question may be vested in the highest court .... However, the nature of

the Organizationand of its operationwould not seem to be such as to invite the inclusion

in the Charter of any provision of this nature. If two member states are at variance con-

cerningthe correctinterpretationof the Charter,they are of coursefree to submit the dis-

pute to the International Court of Justice .... Similarly, it would alwaysbe open to the

GeneralAssembly

or to theSecurity

Council ... to ask the International Court ofJusticefor an advisoryopinion concerning the meaning of a provision of the Charter.85

With regardto Yugoslavia'smembership in the United Nations between 1992 and 2000,

the practicaloutcome of this ratheruntidy and uncertain situation for anyone interestedin

learningwhat the Chartermeans, 86hasbeen the interpretation orrathermisinterpretationor disregard)of the relevant Charterprovisions and UN practiceby the SecurityCouncil and

the GeneralAssembly.Absent a requestfrom those organsfor an advisoryopinion (preferably

before dopting those hybridresolutions) which, as the verytermindicates,would have been

merely advisory the Court could not go beyond indicating itsdispleasureby usingsome mild

phrases,

such as that the situation thus createdwas not freefrom

legaldifficulties, and that

it was amorphous. Some of the dissenting judges used somewhat bolder languagein giving

expressionto their dismay. A case in point is Judge Elaraby'sseparate opinion in the Legality

of UseofForcecases,where he contrasted thepolitical capacityof the SecurityCouncil and the

GeneralAssembly in adopting the relevant resolutionswith the applicablelaw that the Court

shouldh&vz ollowed so as to reach an outcome consistent with the UN Charter and the Orga-nization's established practice.87Likewise, Vice-President Al-Khasawneh, in his dissenting

opinion in the 2007 judgment in the GenocideConventioncase, stressedthat the UN legal

counsel, in his letter of September29, 1992,88was theonly /<?£#/uthorityto appraise he mat-

ter in what was an otherwise blatantlypolitical process 89

Commenting on the Legalityof Useof Forcejudgments, Vice-PresidentAl-Khasawneh, inthe same dissenting opinion, remarked, with great respect, that the Court's logic in the

Legalityof UseofForceJudgmentsdoes not perhaps represent he zenith of legalreasoning.This

is so in addition of courseto its negativeand regrettable mpacton the broadconsistency of the

Court's jurisprudence. 90The author ventures to suggest that this characterization is equally applicable to the

Court's overall performance on this issue, as reflected in the entire body of its Yugoslavia-relatedjudgments rendered between 2003 and 2007. It is not devoid of a certain irony that

85Reportof the Rapporteurf CommitteeIV/2, Doc. 933, IV/2/42, 13 UNCIO Docs. 703, 709 (1945).

86Goodrich, Hambro, & Simons, supranote 84, at 15.87Seesupranote 34 andcorrespondingext.88

LegalCounsel'sLetter, upranote 8.J

DissentingOpinionof Vice-PresidentAl-Khasawneh,upranote47, para.6 (emphasis dded).

yu/^.,para.15.