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UFRGS Model United Nations 2006

The International Court of Justice

Distinguished Members of the Court,

Be very welcome to the International Court of Justice! We take great pride in bringing

back to UFRGSMUN the simulation of the “principal judicial organ” of the United

Nations, and we are very glad that you decided to join us in this task.

First of all, we would like to introduce ourselves. Fernando Lusa Bordin is a fifth-year

student at UFRGS Law School, who has been interested in international law since the

beginning of his undergraduate studies. He has been a member of the Staff since

UFRGSMUN’s first edition, acting as an Assistant-Director in 2003 (Security Council), a

Director in 2004 (SPECPOL) and as the Secretary-General in 2005. Although he has

participated as a delegate in several Model UN (like the Americas Model United Nations,

Simulação de Organismos Internacionais and Temas), he has never been a Judge in an

ICJ. However, he took part twice in the Philip C. Jessup International Law Moot Court

Competition (2005 and 2006), a reason why he would be specially delighted to chair the

Court at UFRGSMUN 2006. Unfortunately, Fernando will not be present at the sessions

because he is going to spend two semesters studying at the Law School of the University

of Giessen (Germany). Anyway, he will be assisting you as far as the distance allows it,

and hoping that you have a wonderful time at UFRGSMUN.

Viviane Pereira Grosser is currently in her fifth year at UFRGS Law School. She was a

member of UFRGSMUN Staff in 2004 as Registrar of the International Court of Justice

and in 2005 as Director of the International Law Commission. She also participated in the

2005 and 2006 Philip C. Jessup International Law Moot Court Competition and she

maintains a great interest in Public International Law.

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Carolina Paranhos Coelho is in her fourth year of Law School at UFRGS and shows a

great interest in all fields of international law. She has been a member of the Staff since

the second edition of UFRGSMUN, acting as an Assistant-Director of the SPECPOL in

2004, together with Fernando Bordin, and a Director in 2005 at the SciTech. This year,

she has joined the Court as a Registrar, after having participated twice in the Willem C.

Vis Moot, an international commercial law competition held in Vienna, Austria.

Last but not least, Roberta Swarowsky Brochier is a freshgirl in Law School at UFRGS.

Although she is a beginner, Roberta has already shared the experience of participating on

a Model United Nations (AMUN – Americas Model United Nations), in Brasília.

Representing UFRGS, she was a Peruvian delegate in G77 + China Committee. She

values the opportunity offered by Models as a way to improve general and academic

knowledge, as well as to make new friends. At UFRGSMUN Staff, Roberta will work as

the Court’s Registrar, helping the Judges and the Chair in any necessity or doubt.

This year, the Members of the Court are expected to deal with a contentious case and an

Advisory Opinion. Topic Area A consists of the Case concerning certain Criminal

Proceedings in France, which was filed in 2002 by the Democratic Republic of the Congo

against France; having the parties agreed on the jurisdiction of the Court, the Judges are

called upon to decide on the merits of the case. Topic Area B requires the Members of the

Court to answer two questions formulated by the UN General Assembly on the

continuation of membership in the UN upon the dismemberment of States.

We would like to remind you that the main aims of this Study Guide are to introduce you

to the topics and to serve as a starting point for your research. Since the discussions in the

ICJ have a technical character – in contrast with the political nature of the debate in other

committees of UFRGSMUN –, it may be necessary that Judges make a special effort to

deepen their knowledge on the issues presented. Accordingly, they may resort to works on

general public international law, to the specific references employed in this Study Guide

and, foremost, to the previous cases of the ICJ pertinent to the current “Docket” (the

Agenda of the ICJ).

We also urge you to sign up for the ICJ’s e-group (icj_ufrgsmun2006-

subscribe@yahoogroups.com), where you can get acquainted with us and with one

another. Moreover, through the e-group we hope to help you as far as possible in your

preparation.

Finally, we would like to thank the UFRGSMUN Secretariat for its support, Ms. Maitê de

Souza Schmitz – a forever UFRGSMUN’s supporter – and, especially, Mr. Diego

Canabarro for his enthusiasm with the project and unconditional understanding of the

difficulties we faced in writing this Study Guide.

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Once again, feel very welcome to the UFRGSMUN 2006’s ICJ! We are looking forward

to meeting you in October/November, and we are at your disposal to solve any doubts you

may have. Feel absolutely free to contact us any time you wish!

All the best!

Fernando Lusa Bordin Viviane Pereira Grosser

Late President President

Carolina Paranhos Coelho Roberta Swarowsky Brochier

Vice President Registrar

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INTRODUCTION

The main purpose of this section is to provide a brief introduction on the history of the Court,

its organization and the basis for its jurisdiction.

A. HISTORY OF THE COURT

The roots of international adjudication may be found in arbitral practice, but the idea of a

standing court could only be seen with the establishment of the Permanent Court of

International Justice (hereinafter, PCIJ). In 1920, the Council of the League of Nations took

the first steps toward the creation of the PCIJ, by appointing an advisory committee of jurists

to prepare a draft statute for a Permanent Court. The PCIJ began to function as a new

standing tribunal in 1922, headquartered in The Hague.

The PCIJ was composed of 15 judges elected by the Assembly and the Council of the

League of Nations, having ceased to function in 1940 with the outbreak of World War II.

The Permanent Court was dissolved in 1946, because of the will to create a new World

Court. The International Court of Justice, however, followed the same concepts of the PCIJ

and, for this reason, the latter is usually referred to as its predecessor.

B. ORGANIZATION OF THE COURT

The ICJ is also composed of 15 judges, elected for a period of nine years, with the partial

election of five judges every three years.1 No state can have two members at the same time

and Article 9 of the Statute provides “that in the body as a whole the representation of the

main forms of civilization and of the principal legal systems of the world should be assured”.

1 Article 2 of the Statute of the Court determines that “the Court shall be composed of a body of independent

judges, elected regardless of their nationality from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are

jurisconsults of recognized competence in international law”.

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Moreover, the judges are elected as individuals and therefore must present their own

personal views. They do not represent their countries of origin.

Article 31 of the Statute provides that a party has the right to have a judge of its nationality

sitting on the bench; if there is not, an ad hoc judge may be chosen by the party, and usually

supports its view of the case.

C. JURISDICTION OF THE COURT

The ICJ possesses jurisdiction in contentious cases between states and is also empowered to

render an advisory opinion on any legal question at the request of duly authorized

International Organizations.2

The basis for jurisdiction in contentious cases is the consent of the State parties to a dispute

and it can be expressed in different ways.3

Consent ad hoc to the exercise of jurisdiction may be given over a dispute the existence of

which is recognized by both parties. The consent of both parties is expressed by a special

agreement, also known as compromis.

Consent ante hoc is given through the inclusion of a jurisdictional clause in a treaty. The

jurisdiction is given in a binding form, since it is provided in advance of the appearance of

particular disputes.

Acceptance of jurisdiction may also be made under the optional clause, through which a state

may declare at any time that it recognizes as compulsory ipso facto the jurisdiction of the

Court and agrees to submit to it any dispute concerning, inter alia, the interpretation of a

treaty and any question of international law.

With regard to the advisory function, it must also be mentioned that its use is mainly to help

the political bodies of the United Nations in settling disputes and to provide authoritative

guidance on points of law.

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Article 96 of the UN Charter determines that the General Assembly or the Security Council may request the Court to give an opinion, and also provides that other organs of the United Nations and specialized agencies, properly authorized by the General Assembly, may request advisory opinions on legal questions arising within the scope of their activities. 3 For a better understanding of the heads of jurisdiction of the Court, see art. 36 of the Statute of the Court;

BROWNLIE, Principles of Public International Law, 6th

Edition. London, Oxford, 2003, p. 680-692.

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TOPIC AREA A

Case Concerning Certain Criminal Proceedings in

France

By Carolina Paranhos Coelho & Viviane Pereira Grosser

1 INTRODUCTION4

On the 5th

of December 2001, several human rights organizations filed with the Prosecutor of

the Paris Tribunal of Great Instance5 a complaint about crimes against humanity and of

torture allegedly committed in the Democratic Republic of the Congo (hereinafter “the

Congo”) against individuals of Congolese nationality. Among the accused were the President

of Congo himself, Mr. Denis Sassou Nguesso, and the Inspector General of the Armed

Forces, General Norbert Dabira.

On 23rd

January 2002, a request for an inquiry into the alleged offenses was issued, and

General Norbert Dabira was taken into custody to testify as a legally represented witness.6

Afterwards, when President Denis Sassou Nguesso was on a State visit to France, a warrant

was issued to police officers instructing them to examine him as a witness.

4 See CR 2003/20 - Public sitting held on Monday, 28 April 2003, at 10 a.m.. Available at: http://www.icj-cij.org/icjwww/idocket/icof/icofcr/icof_icr2003-20_20030428.PDF Last accessed: 15 May 2006. 5 The complaint was later transmitted to the Prosecutor of the Meaux Tribunal of Great Instance, who ordered a preliminary enquiry. Then on 23

rd January 2002 a réquisitoire (application for a judicial investigation of the

alleged offences) was issued, requesting investigation both of crimes against humanity and of torture. 6 A legally represented witness (témoin assisté) in French criminal procedure is a person who is not merely a witness, but to some extent a suspect, and who therefore enjoys certain procedural rights (assistance of counsel, access to the case file) not conferred to ordinary witnesses. See http://www.icj-cij.org/

icjwww/idocket/icof/icofcr/icof_icr2003-21_20030428.pdf. Last accessed: 11 September 2006.

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2 STATEMENT OF THE ISSUE7

In view of the abovementioned facts, on November 25th

2002, the Congo instituted

application and request for provisional measures against the Republic of France (hereinafter

“France”) before the International Court of Justice (hereinafter “ICJ”) on the grounds,8

firstly, of alleged

violation of the principle that a State may not, in breach of the principle of sovereign

equality among all Members of the United Nations, as laid down in Article 2,

paragraph 1, of the Charter of the United Nations, exercise its authority on the

territory of another State, by unilaterally attributing to itself universal jurisdiction in

criminal matters and by arrogating to itself the power to prosecute and try the

Minister of the Interior of a foreign State for crimes allegedly committed in

connection with the exercise of his powers for the maintenance of public order in his

country,

and secondly, alleged

violation of the criminal immunity of a foreign Head of State -- an international

customary rule recognized by the jurisprudence of the Court.

By the Application the Congo requested the Court

to declare that the French Republic shall cause to be annulled the measures of

investigation and prosecution taken by the Procureur de la République of the Paris

Tribunal de grande instance, the Procureur de la République of the Meaux Tribunal

de grande instance and the investigating judges of those courts.

2.1 The Congo’s Allegations

2.1.1 As to France’s violations of international law principles

In its Application, the Congo contends that according to the separate opinion of Judge

Gillaume on the Arrest Warrant case9 international law crimes could only lift from the

competence of national jurisdictions by virtue of the principle of universal jurisdiction. The

country adds that such principle is applied only to some specific international law crimes, in

which crimes against humanity are not covered in its entirety.

Still considering the understanding of the Arrest Warrant case, the Congo sustains that

France’s incompetence to charge a Congolese citizen is certain, for the French law does not

even have a similar provision of that of Belgium allowing universal jurisdiction.

7 See Congo v. France. Application and Request for Provisional Measures http://www.icj-cij.org/icjwww/idocket/icof/icoforder/icof_iapplication_20020209.pdf Last accessed: 20 May 2006. 8 Summary of the Order of 17 June 2003. Available at: <http://www.icj-cij.org/icjwww/idocket/icof/icofsummaries/icofsummary20030617.html>. Last accessed: 1st July 2006. 9 Arrest Warrant (Congo v. Belgium) 2000-2002. Available at: <http://www.icj-

cij.org/icjwww/idocket/iCOBE/iCOBEframe.htm>. Last accessed: 19 May 2006.

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Furthermore, the incompetence of France would arise from the principle established by the

Lotus case10

- which, by its turn, is corroborated by art. 2(1) of the UN Charter - that requires

that a State does not exercise jurisdiction in another country’s territory.

Congo contends further that, although it admits that the claim before French tribunals

denounced the existence of crimes of torture and that such crime is predicted in article 689-2

of the French Criminal Procedural Code,11

that article is not applicable for two main reasons:

firstly, because article 689-2 is originated from the New York Convention of 10 December

198412

against torture and other cruel penalties. As a consequence, its provisions may only

apply to its State Parties and to the crimes committed under their territory. As the

Democratic Republic of the Congo has never signed the Convention, it could not be bound to

its provisions;13

secondly, even if the New York Convention would be binding to the Congo,

France would not gather the necessary conditions to exercise universal jurisdiction as,

according to article 5 §2 of the Convention, the country that detains the charged person in its

territory has only subsidiary jurisdiction, not being competent if the country of which the

charged one is a national starts criminal proceedings against him. In fact, the Congo alleges

that such is the situation in the present case, since a procedure has been engaged in the

Tribunal of Brazzaville in 29th

of August 2000 for the same reasons of those held before the

Meaux Tribunal of Great Instance, as dully acknowledged to the Prosecutor of that French

tribunal by a letter dated of 9th

September 2002.

2.1.2 As to France's violation of penal immunity of a Head of State and a

Public Interior Minister

In the Congo's view, France also violated the penal immunity of a foreign State chief – an

international custom recognized as absolute by the Court in the Arrest Warrant Case, where

it was also recognized a similar immunity to a Minister of Foreign Affairs.

Finally, the Congo evokes the findings of the French Court of Appeals' Criminal Chamber,

which has held that in the absence of contrary international position applicable to the parties

concerned, international customary law opposes to prosecution of Heads of State before

10 Lotus Case (France v. Turkey), P.C.I.J., judgment of 7 September 1927. Available at: <http://www.worldcourts.com/pcij/eng/decisions/1927.09.07_lotus/> Last accessed: 19 May 2006. 11 Article 689-1 combined with article 689-2 of the French Criminal Procedural Code determines France's jurisdiction for crimes of torture if the charged person finds itself in French territory. Available at: <http://www.legifrance.gouv.fr/WAspad/RechercheSimpleCode;jsessionid=EukH2z2ThVz261po2vUzPzebobwa1mnv1S78ktgckiQxtpcFtfZV!-524970262!iwsspad3.legifrance.tours.ort.fr!10038!-1!-1319454837!iwsspad.legifrance.tours.ort.fr!10038!-1?commun=CPROCP&code=>. Last accessed: 19 May 2006.

12 New York Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Available at: <http://www.ohchr.org/english/law/cat.htm> Last accessed: 19 May 2006. 13 It must be reminded that the Congo has evoked the New York Convention on at least one opportunity, in order to file its Application under the ICJ, namely in Armed Activities on the Territory of the Congo (The Congo v. Rwanda), where it was contended that the Court’s jurisdiction to deal with the dispute "deriv[es] from compromissory clauses" in many international legal instruments. In this connection, it cites (...) the 1984 New York Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (...)". Available at: <http://www.icj-cij.org/icjwww/ipresscom/ipress2002/ipresscom2002-15_crw_20020528.htm>. Last

accessed: 2 July 2006.

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criminal jurisdiction of a foreign State.14

The Congo concludes therefore that France could

not have indicted or convoked President Sassou Ngesso as a witness.

2.1.3 The Congo's Plead for Provisional Measures

Based on article 41(1) of the Court's Statute, the Congo demanded provisional measures,

since urgency is present and there is danger of irreparable harm if the procedures held before

the Meaux Tribunal of Great Instance continue. Danger could arise because the information

under cause troubles the Congo's international relations due to the publicity it received.

According to the Congo, this publicity breaches French law dispositions concerning secrecy

of the proceedings and the acts of the judge of instruction, which need to regard the honor

and the consideration of the Head of State, the Minister of Interior and the Inspector General

of the Armed Forces of the Congo, as well as its international image. Finally, the Congo

contends that the plea before the French Court alters the friendly franco-congolese relations.

2.2 The Allegations of France15

During public hearings, Agents for France held the nonexistence of neither risk of irreparable

harm to the rights of the Congolese State nor any situation of urgency which could justify

provisional measures.

Agent Abraham specifically stated that all the steps taken by the French courts have

respected the limits of their jurisdiction, as well as the immunities enclosed in French law,

which in turn would be in conformity with international law. The Agent further recognized

that the French case mentioned by the Congo in its application had an even more restrictive

approach in dealing with immunities owed to foreign Heads of State than the understanding

of the Court applied on the Arrest Warrant case.16

According to the Agent, French law allows universal jurisdiction only in certain crimes,

which are strictly determined by national laws. Moreover, such act of jurisdiction would be

subordinated by two main conditions predicted by the Code of Criminal Procedure: first, that

a treaty to which France is a party predicts, or even imposes, universal jurisdiction; and

secondly, that the suspect of the crime finds itself under French territory. Agent Abraham

then concludes that French law holds a restrictive approach regarding universal jurisdiction,

being a different situation than the one faced at the Arrest Warrant Case. Contrarily to

14 French Court of Cassation, Criminal Chamber. Public Audience held on 13th March 2001. Available at: http://lexinter.net/JPTXT/immunite_d'un_chef_d'etat_etranger.htm. Last accessed: 20 May 2006. 15 CR 2003/21 - Public sitting held on Monday, 28 April 2003, at 4 p.m. Available at: <http://www.icj-cij.org/icjwww/idocket/icof/icofcr/icof_icr2003-21_20030428.PDF >>>Last access: 20 May 2006.

16 CR 2003/21 - Public sitting held on Monday, 28 April 2003, at 4 p.m. Op. Cit. p. 33.

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French Law, Belgian law determines universal jurisdiction considering the most extensive

approach, by conferring universal jurisdiction also when the person charged is absent.

2.3 Reasoning of the Court concerning Provisional Measures17

After oral hearings to determine the necessity of provisional measures, the Court reasoned

that the Judges have not been informed in what practical respect there has been any

deterioration internally or in the international standing of the Congo, or in Franco-Congolese

relations, since the institution of the French criminal proceedings.

As to whether the criminal proceedings currently pending in France would entail a risk of

irreparable prejudice to the immunities of President Sassou Nguesso as Head of State and to

General Dabira as Inspector General of the Armed Forces, the Court decided that there was

no risk of irreparable prejudice, so as to justify the indication of provisional measures as a

matter of urgency.

The Court has also observed that there was no urgent need for provisional measures to

preserve a violation of a principle of international law when concerning the alleged act of

universal jurisdiction by France, since, as regards President Sassou Nguesso, the request for

a written deposition made by the investigating judge on the basis of Article 656 of the French

Code of Criminal Procedure has not been actually transmitted to the person concerned by the

French Ministry of Foreign Affairs.18

The Court finally saw no need for the indication of any measures of the kind directed to

preventing the aggravation or extension of the dispute. For these reasons it was found by

fourteen votes to one, that the circumstances were not such as to require the indication of

provisional measures.

2.4 Legal Theses Involved in the Merits: Universal Jurisdiction vs.

Immunity of States?

The case placed before the Court raises the controversial issue of the suitability of universal

jurisdiction for international crimes and of the limits it would be bound to. After all, is it

17

Order of 17 June 2003 - Request for the Indication of a Provisional Measure. Available at: <http://www.icj-cij.org/icjwww/idocket/icof/icoforder/icof_iorder_20030617.pdf>. Last accessed: 2 July 2006. 18 According to article 656 of the French Procedural Criminal Code, the written deposition of a representative of a foreign potency is requested by the judge of instruction with the intervention of the Ministry of Foreign Affairs. Whether the demand is accepted by the addresse, such deposition is received by the President of the Court of

Appeals or by the magistrate delegated by him.

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allowed by international law for a State to investigate and judge certain crimes, even though

objective bonds, such as territoriality or nationality, between this State and the crime suspect

are nonexistent?

2.4.1 The principle of Universal jurisdiction

2.4.1.1 The different kinds of jurisdictions present in international criminal law

In international criminal law, jurisdiction is basically understood in two different

perspectives: the prescriptive jurisdiction and the executive jurisdiction.19

The first one

consists of the State power to establish applicable laws inside its territory.20

As to the

executive jurisdiction, it is related to the State authority to demand the compliment of its

enforceable laws.21

The main difference that should be noticed between these two kinds of jurisdictions regards

their extension, and, as a consequence, the limits of the State power to exercise each one of

them. Whereas, for instance, a State may edit laws applicable to an individual, even though

he is not inside its territory, the enforcement of this law cannot be performed outside that

territory. In this sense, if a State arrests individuals, or apprehends evidences out of its

territory, such an act is considered as against international law and can therefore provoke the

State’s responsibility for it. That is because it is a principle of international law that a State

cannot exercise jurisdiction off its boundaries, unless that would be allowed by the other

State. At the same time, a state may, in some cases, directly apply norms of another State and

demand its accomplishment inside its territory.22

2.4.1.2 International Principles regarding Prescriptive Jurisdiction

In current international law practice, there are five main principles on which the prescriptive

jurisdiction is based.23

The first one is territoriality, which has been historically attached to

the exertion of such jurisdiction. This principle – upheld in the Lotus Case24

– entitles the

19 SHAW, Malcolm N. International Law. 4.ed. Cambridge: Cambridge University Press, 2000. p. 452. However, Judge Van den Wyngaert, expresses that “enforcement jurisdiction” consists in what a State may do on the territory of

other States when prosecuting certain crimes. This concept opposes to “prescriptive jurisdiction”, that is, what a State may do on its own territory when investigating and prosecuting crimes committed abroad. Arrest Warrant, p. 26. Available at: http://www.icj- cij.org/icjwww/idocket/iCOBE/icobejudgment/icobe_ijudgment_20020214_vdwyngaert.PDF Last access: 20/05/06. 20 BROWNLIE, Ian. Principles of Public International Law. 5.ed. Oxford: Oxford University Press, 1998. p. 313. 21 RANDALL, Kenneth C. Universal jurisdiction under international law. Texas Law Review, v. 66, march 1998. p. 786.

22 BASSIOUNI, M. Cherif. The Sources and Content of International Criminal Law: A Theoretical Framework. In: ______ (ed.). International Criminal Law. New York: Transnational Publishers, p. 3-126, 1999. 23 BROWNLIE, Ian. Principles of Public International Law. 6.ed. Oxford: Oxford University Press, 2003. p. 303-312. 24 At that opportunity, it was held that "(...) the first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory [19] except by virtue of a permissive rule derived from international custom or from a

convention". See PPCIJ, Ser. A., No. 10, 1927. p. 15. Available at:

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State where the crime has been physically committed to exercise jurisdiction, a power

considered as an essential aspect of the States’ sovereignty.25

In fact, territorial jurisdiction is

the only principle unanimously accepted26

by the international community as a valid basis to

determine the competence of a State for international crimes, being one of its main

references

The territoriality principle, however, is not absolute. As a matter of fact, traditionally,

together with territoriality, the principle of active nationality has always been considered as

an important basis for jurisdiction.27

That is because jurisdiction underpinned in such

principle allows a State to regulate the conduct of its nationals anywhere in the world.28

Accordingly, such principle is evoked when the individual being charged is a national of the

State concerned, independently of where the crime has been committed.

A third principle to be considered is the passive nationality. The question to be asked here is

where the victim of the crime comes from. The answer then would define the State that has

jurisdiction over that particular crime. Although this criterion of jurisdiction was

controversial in the past,29

today it is generally accepted, being present in various countries

legislations and facing almost no opposition.30

On its turn, the principle protective of national interests (compétence réelle) establishes that

the State should exercise jurisdiction under foreigners that commit, in another State, crimes

that this State considers harmful to its own safety.31

Such jurisdiction is allowed solely for

some crimes,32

for the principle in which it relies on, albeit dully substantiated, is uncertain

as for its extension and the possible actions it raises.33

2.4.1.3 The Universal Jurisdiction

The fifth principle, and the most polemic one, is universal jurisdiction, which is understood

as the type of jurisdiction that does not require any of the traditional connections with the

State that decides to exercise it.

Focusing on the question whether it is necessary that a factual causal connection between the

elements of the crime and the State exists is not without a reason. Traditionally, it is

considered that there are immanent limitations to State jurisdiction and that, when those

limitations are disregarded, an abuse of the States’ sovereignty would take place. Such

<http://www.worldcourts.com/pcij/eng/decisions/1927.09.07_lotus/>. Last Accessed: 31/05/06 25 BROWNLIE, Ian. Op. Cit. p. 303. 26 BLAKESLEY, Christopher. Extraterritorial Jurisdiction. In: BASSIOUNI, M. Cherif (ed.). International Criminal

Law. New York: Transnational Publishers, 1999. v. 2, p. 33-105. 27 SCHACHTER, Oscar. International Law in Theory and Practice. Dordrecht: Martinus Nijhoff, 1985. p. 254. 28 MARTINEZ, Jenny S. Towards an International Judicial System. Stanford Law Review, v. 56, p. 429-529, nov. 2003. p. 506. 29 Lotus, diss. op. Loder, at 36, diss. op. Finlay, at 55-58, diss. op. Nyholm, at 62. 30 Arrest Warrant Case, sep. op. Higgins, Kooijmans e Buergenthal §47. 31 BROWNLIE, Ian. Op. Cit. p. 303-304. 32 O'KEEFE, Roger. Universal Jurisdiction. Journal of International Criminal Justice, v. 2, set. 2004. p. 738.

33 SHAW, Malcolm N. International Law. 4.ed. Cambridge: Cambridge University Press, 2000. p. 468-469.

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limitations refer to the need of existence of a bond between the State, or certain elements of

fact of such a substantial and direct importance that jurisdiction would be in complete

harmony with international law and its various aspects, such as the need of interdependence

and reciprocity between international actors.34

Notably, in universal jurisdiction that bond is not found, since, at these cases, the State acts

in the name of the international community and its basis of authority resides solely on the

nature of the crime performed.35

Only a small number of crimes are accepted to give birth to

universal jurisdiction. To some scholars, all States have a duty to judge individuals that

commit grave violations to peremptory norms of international law (jus cogens).36

To others,

what really matters is the determination of which are the “universal crimes”, since universal

jurisdiction would be that exercised over a limited category of violations recognized as being

of universal interest.37

Finally, there are some publicists that analyze the gravity of the action

to determine universal jurisdiction.38

In the present case, the Members of the Court are expected to determine whether or not the

principle of universal jurisdiction can entitle France to carry on criminal proceedings against

the governmental authorities of the Congo that allegedly involved in international crimes.

2.4.2 Immunity of States

2.4.2.1 The Concept of State Immunity

Classic international law provides immunity for States and governments from the territorial

jurisdiction of other States, what constitutes an exception to the territorial application of

law.39

The beneficiaries of immunity are foreign States, foreign diplomats and also

international organizations and their agents.

The reason for such waive of the territorial jurisdiction rule rests in two principles: the

sovereign equality doctrine, by virtue of which all States are equal and are not expected to be

submitted to the laws of other sovereigns,40

and the principle of non-intervention in the

internal affairs of other States.41

The first principle is based in the maxim par in parem non

habet jurisdictionem, meaning that “legal persons of equal standing cannot have their

34 MANN, F. A. The Doctrine of Jurisdiction in International Law. Recueil des Cours, v. 111, p. 162, 1964. p. 49-51. 35 BASSIOUNI, M. Cherif. Universal jurisdiction for international crimes: historical perspectives and contemporary practice. Virginia Journal of International Law, v. 42, out./nov. 2001. p. 88-89. 36 VERDROSS, Alfred. Derecho Internacional Público. Madrid: Aguilar, 1955. p. 82

37 SCHACHTER, Oscar. Op. Cit. p. 262 38 Princeton Project on Universal Jurisdiction, The Princeton Principles on Universal Jurisdiction, 23 July 2001, with a foreword by Mary Robinson, United Nations High Commissioner for Human Rights. Available at: <http://www.princeton.edu/~lapa/unive_jur.pdf>. Last access: 20/05/06. 39 HIGGINS, Rosalyn. Problems & Process. International Law and How We Use it. Oxford, Clarendon Press, 2001, p.78. 40 HIGGINS, Op. Cit., p. 79. 41 BROWNLIE, Principles of Public International Law. 5

th Edition. New York, Oxford University Press, p. 327;

SHAW, Malcom N. Shaw. International Law. 4th

Edition. New York, Cambridge University Press, 1997, p. 492.

14

disputes settled in the courts of one of them.”42

And accordingly, the sovereign State may

choose to renounce to its immunity if it so decides to.

Regarding such principles, Justice Marshall in The Schooner Exchange v. McFaddon has

declared that

[t]his perfect equality and absolute independence of sovereigns, and this common

interest impelling them to mutual intercourse, and an interchange of good offices

with each other, have given rise to a class of cases in which every sovereign is

understood to wave the exercise of a part of that complete exclusive territorial

jurisdiction, which has been stated to be the attribute of every nation.43

This idea is complemented by Buerghental and Murphy, who contend that “diplomatic

immunity contributes to friendly relations among states by allowing the representatives of

states to perform their functions without the risk of being exposed to national proceedings,

which in some instances might be a form of harassment or retaliation.”44

2.4.2.2 Immunity of Heads of State and Foreign Ministers

In certain circumstances, state officials are immune from the jurisdiction of foreign states.

This immunity derives from general customary international law (as for foreign ministers

and heads of State) and also from the customary international law related to applicable

treaties, such as the Vienna conventions of 1961 and 1963, on diplomatic and consular

relations respectively (as for diplomatic agents).

Heads of State personify their State; therefore, any act of the Head of State is automatically

an act of the State, which means that bringing him before a foreign court would be

equivalent to trying the State itself.45

As a consequence, the acts committed by a head of

State during his incumbency enjoy immunity regardless of the nature of the action, since this

is required by the dignity of his State.46

An important question that arises, specifically contrasting to the universal jurisdiction theory,

is whether immunity still applies if a Head of State is charged for grave international crimes,

such as genocide, crimes against humanity and torture.47

Historically, few heads of State

42 BROWNLIE, Op. Cit., p. 327.

43 The Schooner Exchange v. McFaddon, 7 Cranch 116, 1812 WL 1310 U.S,1812, February 24, 1812. 44 BUERGENTHAL, Thomas; MURPHY, Sean D. Public International Law. 3rd Edition, St. Paul, West Group, p. 223. 45 David S. Koller. Immunities of Foreing Ministers: Paragraph 61 of the Yerodia Judgment as it pertains to the security council and the International Criminal Court. 20 Am. U. Int’L. Rev. 7, 2004, p. 13. 46 Hazel Fox. The Resolution of the Institute of International Law on the Immunities of Heads of State and Government. 51 ICLQ 119, 2002, p. 120. 47 David S. Koller. Immunities of Foreing Ministers: Paragraph 61 of the Yerodia Judgment as it pertains to the

security council and the International Criminal Court. 20 Am. U. Int’L. Rev. 7, 2004, p. 13.

15

have suffered punishment or even prosecution for their crimes and offenses and, up to this

date, they continue to be free from criminal liability.48

According to Dapo Akande,

[t]hese immunities are conferred on officials with primary responsibility for the

conduct of the international relations of the state (…). The effectiveness of this

process of communication and cooperation in turn requires that the state agents

charged with the conduct of international relations be able to travel freely in order to

perform their functions without the fear or possibility of harassment by other states.

Thus, these immunities are necessary for the maintenance of a system of peaceful

cooperation and coexistence among states.49

In this sense, heads of States, diplomats and other officials are absolutely exempted from the

criminal jurisdiction of any foreign State, for, if they were not, they would be hindered in the

exercise of their functions.50

The ICJ, in the Arrest Warrant case held that this kind of

immunity applies not only to official acts of this group of senior officials, but also to their

private acts throughout the duration of their mandate.51

As far as to foreign ministers, the position of absolute immunity in criminal cases has been

controversial.52

Nevertheless, the ICJ in the Arrest Warrant Case held that this type of

immunity also applies to them,53

since they are responsible for the international relations of

the State and “[i]n the performance of these functions, he or she is frequently required to

travel internationally, and thus must be in a position freely to do so whenever the need

should arise.”54

Furthermore, the ICJ confirmed that the immunity from criminal process enjoyed by a

serving foreign minister remains even when he committed an international crime.55

Thus, Members of the Court will have to decide whether the law of immunity, as advocated

by the Congo, renders the proceedings established by France illegal. Would it be really

intransgressible in face of the nature of international crimes?

48 Mary Margaret Penrose. It's good to be the king!: prosecuting heads of state and former heads of state under international law. 39 Colum. J. Transnat'l L. 193, 2000, p. 199. 49 Dapo Akande. International Law Immunities and the International Criminal Court. 98 Am. J. Int'l L. 407, 2004, p. 410. 50 David S. Koller. Immunities of Foreing Ministers: Paragraph 61 of the Yerodia Judgment as it pertains to the

security council and the International Criminal Court. 20 Am. U. Int’L. Rev. 7, 2004, p. 14. 51 Arrest Warrant Case, ICJ, 2002, para 54. 52 Dapo Akande. International Law Immunities and the International Criminal Court. 98 Am. J. Int'l L. 407, 2004, p. 411-412. 53 Arrest Warrant case, ICJ, para. 51. 54 Arrest Warrant case, ICJ, 2002, para. 53; see David S. Koller. Immunities of Foreing Ministers: Paragraph 61 of the Yerodia Judgment as it pertains to the security council and the International Criminal Court. 20 Am. U. Int’L. Rev. 7, 2004, p. 16.

55 Arrest Warrant Case, ICJ, 2002, para. 55.

16

2.5 Legal Precedents of the ICJ: The Arrest Warrant Case

In the Arrest Warrant case, the Democratic Republic of the Congo requested the ICJ to

declare the annulment of an arrest warrant issued by a Belgian judge against its Minister for

Foreign Affairs, in office at the time of the application, Mr. Abdulaye Yerodia Ndombasi.

Belgium sought his provisional detention for “alleged crimes constituting ‘serious violations

of international humanitarian law’”.56

Mr. Yerodia was accused of delivering speeches inciting racial hatred in the Congo during

the August, 1998. The crimes attributed to Mr. Yerodia were punishable in Belgium under

the Law of 16 June 1993, concerning violations of international humanitarian law. Under this

statute, Belgian courts have jurisdiction over the offences, regardless of where they have

been committed.57

In its Application, the Congo based its claim on two separate legal grounds: (1) that the

universal jurisdiction evoked by the Belgian State constituted a violation of the principle of

sovereign equality and a violation of the principle that a State may not exercise its authority

in the territory of another State, and (2) that the non-recognition of the immunity of a

Minister for Foreign Affairs in office constituted “a violation of the rule of customary

international law concerning the absolute inviolability and immunity from criminal process

of the incumbent foreign ministers”.58

Although the Congo’s application established the claim on those two grounds, its

submissions in the Memorial and the final submissions presented at the end of the oral

proceedings referred only to the second, not mentioning the aspect of universal jurisdiction.

Therefore, the Court understood that it could avoid pronouncing itself on this specific issue,

and decided to silence on the question of universal jurisdiction.59

The Court, thus, acknowledged that ministers of foreign affairs are accorded immunity “not

for their personal benefit, but to ensure the effective performance of their functions on behalf

of their respective State” under customary international law, concluding that “the functions

of a Minister for Foreign Affairs are such that, throughout the duration of his or her office,

he or she when abroad enjoys full immunity from criminal jurisdiction and inviolability”.60

Also, regarding the matter of crimes against humanity, the ICJ has stressed that

It has been unable to deduce from this practice that there exists under customary

international law any form of exception to the rule according immunity from

criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs,

56 Arrest Warrant case, ICJ, 2002, para. 10. 57 Article 7 of Law of 16 June 1993, concerning the Punishment of Grave Breaches of the International Geneva Conventions of 12 August 1949 and of Protocols I and II of 8 June 1977 Additional Thereto. Amended by the Law of 19 February 1999 concerning the Punishment of Serious Violations of International Humanitarian Law. 58 Arrest Warrant case, ICJ, 2002, para 21. 59 Arrest Warrant case, ICJ, 2002, para 43.

60 Arrest Warrant case, ICJ, 2002, para. 53 and 54.

17

where they are suspected of having committed war crimes or crimes against

humanity.61

Pursuant to David Koller, the reasoning of the court is not clear in explaining why the

functions of foreign ministers demand such an absolute immunity, especially when they visit

foreign States in their private capacity. He argues that the rationale for this immunity is much

weaker than that for Heads of State, since, in this case, the very dignity of the State is at

stake.62

Notwithstanding, the position taken by the Court suggests that unless the State has given its

consent, the courts of a foreign State are not allowed to try even a former Minister of Foreign

Affairs for international crimes allegedly committed in his official capacity while in office.63

One of the most criticized aspects of the decision is the fact that the ICJ has affirmed the rule

of immunity – a norm of customary international law – in detriment of an analysis of

universal jurisdiction related to crimes against humanity, war crimes, among others – crimes

whose prosecution are widely held to be norms of jus cogens.

3 SUBMISSIONS

The Democratic Republic of the Congo asks this Court to adjudge and declare that:

a) by attributing to itself universal jurisdiction in criminal matters and by arrogating to itself

the power to prosecute and try the Minister of the Interior of a foreign State for crimes

allegedly committed in office, the Republic of France violated the principle that a State may

not exercise its sovereignty over the territory of another State, as set forth by article 2,

paragraph 1, of the United Nations Charter;

b) by subjecting the President of the Republic of Congo and its ministers to measures of

investigation and prosecution in criminal matters, the Republic of France violated the

criminal immunity of a foreign Head of State and his Ministers;

c) as a consequence of the violations set forth by the French Republic, the measures of

investigation and prosecution undertaken by French tribunals shall be annulled.

The Republic of France asks this Court to adjudge and declare that:

61 Arrest Warrant case, ICJ, 2002, para. 58. 62 David S. Koller. Immunities of Foreing Ministers: Paragraph 61 of the Yerodia Judgment as it pertains to the security council and the International Criminal Court. 20 Am. U. Int’L. Rev. 7, 2004, p. 15-16. 63 Paola Gaeta. Ratione materiae immunities of former heads of state and international Crimes: the hissène

Habrè case, 1 J. Int'l Crim. Just. 186, 2003, p. 189.

18

a) in investigating and prosecuting the President and Ministers of the Democratic Republic

of Congo for crimes committed against humanity the Republic of France has acted in

accordance to the rule of universal jurisdiction, as provided by its national law;

b) in instituting the criminal proceedings the Republic of France acted in conformity with

international law, respecting the limits of its jurisdiction as well as the immunities enclosed

in its national law;

c) therefore, the proceedings instituted by the Republic of France are in accordance with

international law.

4 REFERENCES

4.1 Books and Articles

ASCENSIO, Hervé. Are Spanish Courts Backing Down on Universality? The Supreme

Tribunal's Decision in Guatemalan Generals. Journal of International Criminal Justice, vol.

1, p. 690-702, dez. 2003.

AKANDE, Dapo. International Law Immunities and the International Criminal Court. 98

Am. J. Int'l L. 407, 2004.

BASSIOUNI, M. Cherif. Universal jurisdiction for international crimes: historical perspectives and

contemporary practice. Virginia Journal of International Law, v. 42, out./nov. 2001.

BROWNLIE, Ian. Principles of Public International Law. 5.ed. Oxford: Oxford University Press,

1998.

BUERGENTHAL, Thomas; MURPHY, Sean D. Public International Law. 3rd Edition, St. Paul,

West Group.

FOX, Hazel. The Resolution of the Institute of International Law on the Immunities of Heads of

State and Government. 51 ICLQ 119, 2002.

GAETA, Paola. Ratione materiae immunities of former heads of state and international Crimes:

the hissène Habrè case, 1 J. Int'l Crim. Just. 186, 2003.

HIGGINS, Rosalyn. Problems & Process. International Law and How We Use it. Oxford,

Clarendon Press, 2001.

19

KOLLER, David S. Immunities of Foreing Ministers: Paragraph 61 of the Yerodia Judgment as it

pertains to the security council and the International Criminal Court. 20 Am. U. Int’L. Rev. 7,

2004.

MANN, F. A. The Doctrine of Jurisdiction in International Law. Recueil des Cours, v. 111, p. 162,

1964.

MARTINEZ, Jenny S. Towards an International Judicial System. Stanford Law Review, v. 56, p.

429-529, nov. 2003.

O'Keefe, Roger. Universal Jurisdiction. Journal of International Criminal Justice, v. 2, set. 2004.

PENROSE, Mary Margaret. It's good to be the king!: prosecuting heads of state and former heads

of state under international law. 39 colum. J. Transnat'l l. 193, 2000.

RANDALL, Kenneth C. Universal jurisdiction under international law. Texas Law Review, v. 66,

march 1998.

SHAW, Malcom N. Shaw. International Law. 4th Edition. New York, Cambridge University

Press, 1997.

SHAW, Malcolm N. International Law. 4.ed. Cambridge: Cambridge University Press, 2000.

SCHACHTER, Oscar. International Law in Theory and Practice. Dordrecht: Martinus Nijhoff,

1985.

VERDROSS, Alfred. Derecho Internacional Público. Madrid: Aguilar, 1955.

4.2 International Cases

Arrest Warrant (Congo v. Belgium). International Court of Justice, 2002.

Arrest warrant case, ICJ, 2002, Sep. op. Justices Higgins, Kooijmans e Buergenthal.

Certain Criminal Proceedings in France (Congo v. France). International Court of Justice,

2003.

___________, CR 2003/20 - Public sitting held on Monday, 28 April 2003.

___________, CR 2003/21 - Public sitting held on Monday, 28 April 2003.

___________, ICJ, Application and Request for Provisional Measures, 2003.

20

Certain Criminal Proceedings in France, ICJ, 2003, Diss. Op. Judge de Cara.

Certain Criminal Proceedings in France, ICJ, 2003, Joint Sep. Op. Judges Koroma and

Vereshchetin.

French Court of Cassation, Criminal Chamber, Public Audience, 13 March 2001.

Lotus Case (France v. Turkey), P.C.I.J., judgment of 7 September 1927.

___________, Diss. op. Judge Finlay

___________, Diss. op. Judge Nyholm.

___________, Diss. op. Judge Loder.

The Schooner Exchange v. McFaddon, 7 Cranch 116, 1812 WL 1310 U.S,1812, February

24, 1812.

4.3 International Treaties and Conventions

New York Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment.

Statute of the International Court of Justice

21

TOPIC AREA B

Advisory Opinion on Dismemberment of States and

Continuation of Membership in the United Nations

By Fernando Lusa Bordin

“Political change, involving at it does modification in the form, the structure

and the composition of human societies, has posed questions of a

philosophical nature ever since man began to reflect upon the manner of his

government. (…) It is evident, then, that the area of study which is known to

international lawyers as State Succession has philosophical ramifications of

importance and complexity, and it is not surprising to find that Aristotle is the

first author to isolate the problem of State Succession as one for

philosophical enquiry. In the Politics he asks on which principle we ought to

pronounce a city to be the same city as it was before, or not the same but

different city?” D. P. O’Connell. State succession in relation to new States. Recueil

des Cours, t. 130, International Law Academy, 1970, p. 100.

1 INTRODUCTION

On the 1st of March of 2006, the United Nations General Assembly (UNGA) requested the

International Court of Justice to issue an Advisory Opinion on Dismemberment of States and

Continuation of Membership in the United Nations. The questions formulated are the

following:

1. What are the legal rules that determine when one of the States entering into

international life through the division of a Member State of the United Nations is

entitled to continue the latter’s membership?

2. When a State that is found not to comply with the legal rules dealt with by the

first question exercised – prior to a final decision on its status – a de facto

22

membership in the United Nations, should it be considered to have been a member

of the organization during the lapse of time he exercised such a de facto

membership?

The present Study Guide aims at introducing the Members of the Court to the legal issues

they shall examine in answering the Advisory Opinion proposed by the UNGA.

2 HISTORICAL BACKGROUND

The first time the United Nations (UN) faced the question of continuation of membership

was in 1947, upon the dismemberment of British India.64

British India, in spite of being a colony of the United Kingdom (UK), was a member of the

UN per se. On August 15, 1947, when it became independent from the UK, its territory was

shared by two “new” States: India and the Republic of Pakistan.

On that very day, Pakistan sent a cable to the Secretary-General requiring that both India and

Pakistan were automatically considered members of the UN for they were the successors of

British India. Alternatively, Pakistan asked him to accept that cable as a formal application

for admission to the organization.

Faced with such a request, the Secretary-General requested its Assistant Secretary-General

for Legal Affairs to issue an opinion on the matter. His opinion – in the sense that only India

was entitled to continue the membership65

– was a cause for much debate at the UNGA.66

64

On the subject, see UNITED NATIONS. Yearbook of the United Nations: 1947-48. New York: Department of Public Information, 1948, p. 39-40. See also SCHARF, Michael P. Musical chairs: the dissolution of States and membership in the United Nations. Cornell International Law Journal, Winter, 1995, p. 32-39. 65

The Opinion of the Legal Assistant, Dr. Ivan Kerno, reads as follows (U.N. Doc. A/CN.4/149 (1962)): “The Indian Independence Act provides that on the fifteenth day of August, 1947, two Independent Dominions shall be set up in India to be known respectively as India and Pakistan. Under this act, the new Dominion of India will consist of all the territories of British India except certain designated territories which will constitute Pakistan.

What is the effect of this development on membership and representation of India in the United Nations? From the legal standpoint, the Indian Independence Act may be analysed as effecting two separate and distinct changes: 1. From the viewpoint of international law, the situation is one in which a part of an existing state breaks off and becomes a new state. On this analysis, there is no change in the international status of India; it continues as a state with all treaty rights and obligations, and consequently, with all the rights and obligations of membership in the United Nations. The territory which breaks off, Pakistan, will be a new state; it will not have the treaty rights and obligations of the old state, and it will not, of course, have membership in the United Nations.

In international law, the situation is analogous to the separation of the Irish Free State from Great Britain, and of Belgium from the Netherlands. In these cases, the portion which separated was considered a new State; the remaining portion continued as an existing state with all of the rights and duties which it had before. 2. Apart from the question of separation, the Independence Act has effected a basic constitutional change in India. The existing State of India has become a Dominion and, consequently, has a new status in the British Commonwealth of Nations, independence in external affairs, and a new form of government. It is clear, however, that this basic constitutional change does not affect the international personality of India, or its status in the United Nations.” 66

See, infra, at 1.1.

23

Eventually, nevertheless, it was accepted by the UNGA and Pakistan was accordingly

admitted as a new member.67

More than four decades from this episode had passed when the international community was

surprised by the break-up of the Union of Socialist Soviet Republic (USSR). Through the

Alma Ata Declaration of 1991, the fifteen former soviet republics declared that “with the

formation of the Commonwealth of Independent States [CIS] the Union of Socialist Soviet

Republics cease[d] to exist.”68

At that time, it was very important to determine which State, if any, should continue the

USSR’s membership, which included a permanent seat and veto power in the Security

Council (UNSC). Should it be one of the soviet republics? Should it be the very CIS, as the

international organization representing the territory and population of the former USSR?

Could it be a third State?

It seems that the permanent members of the UNSC were interested in keeping the original

balance of power on which the UN was built. Likewise, having an international organization

of a cooperative character like the CIS taking a seat in the Security Council seemed very

dangerous. Thus, no State opposed when the Russian Federation sent a letter to the

Secretary-General69

communicating that it would continue the USSR’s membership, and a

happening that might have been highly complicated for the UN was solved as smoothly as

possible.70

Soon after the USSR’s collapse, the UN was challenged by the very polemic dissolution of

the Social Federal Republic of Yugoslavia (SFRY) into five independent States:71

the

Federal Republic of Yugoslavia (nowadays named, and hereinafter referred to in this Guide

as, “Serbia and Montenegro”72

), Slovenia, Croatia, Bosnia and Herzegovina and Macedonia.

67

UNGA Resolution 108(II) of September 30, 1947. 68

The Alma Ata Declaration, Signed by The Republic of Armenia, the Republic of Azerbaijan, the Republic of Belarus, the Republic of Kazakhstan, the Republic of Kyrgyzstan, the Republic of Moldova, the Russian Federation, the Republic of Tajikistan, the Republic of Turkmenistan, the Republic of Ukraine and the Republic of Uzbekistan on December 21, 1991. Available at: http://www.country-data.com/frd/cs/belarus/by_appnc.html. Last accessed: 20 May 2006. 69

The letter from President Yeltsin to the UN Secretary-General (Javier Peres de Cuellar), dated December 24,

1991, read as follows: “I have the honour to inform you that the membership of the Union of Soviet Socialist Republics in the United Nations, including the Security Council, and in all other organs and organizations of the United Nations system is continued, with the support of the States of the Commonwealth of Independent States, by the Russian Federation. (…) Please, accept this letter as constituting credentials to represent the Russian Federation in the U.N. organs for all those currently possessing the credentials of the representatives of the USSR to the UN”. (UN Doc. 1991/RUSSIA, on file with the Cornell International Law Journal). 70

On the political scenario that involved Russia’s continuation of the USSR’s membership, see SCHARF,

Musical Chairs…, p. 47- 49. 71

On the conflicts that caused the dissolution of the SFRY, see HAGEN, William W. The Balkans' lethal nationalisms. Foreign Affairs, v. 78. New York: Jul/Aug, 1999. 72

It should be noted that the Republic of Montenegro is now and independent State, as well as a new member of the United Nations (cf. UNGA Resolution 60/264 of June 28, 2006). On the 21

st of May, 2006, the people from

Montenegro voted in favor of the separation (55,4%) in a referendum. On the 3rd

of June, the declaration of independence was adopted on a special session of the Parliament. Serbia continued Serbia and Montenegro’s membership in the United Nations. See BBC News, Montenegro declares independence. Available at:

http://news.bbc.co.uk/2/hi/europe/5043462.stm. Last accessed: 8th September, 2006. On the referendum, see

24

From 1992 to 2000, Serbia and Montenegro upheld that it was the continuity of the SFRY in

the international life and sought to continue the SFRY’s membership in the UN.73

Nonetheless, the vast majority of the members of the international community, outraged at

the atrocities perpetrated in the conflicts that followed the disintegration of the SFRY,

opposed to this claim.

As a consequence, the UNSC stated that “the State formerly known as the Socialist Federal

Republic of Yugoslavia ha[d] ceased to exist” and that Serbia and Montenegro “could not

continue automatically” the SFRY’s membership in the UN.74

On its turn, the UNGA

reaffirmed the words of the SC and suspended Serbia and Montenegro from its works,75

as

well as from the works of the Economic and Social Council (ECOSOC).76

Notwithstanding,

since the membership of the SFRY had not been terminated by the UNGA, Serbia and

Montenegro enjoyed a sui generis position (de facto membership) in the UN until deciding to

apply for new membership, which happened only in 2000.77

3 STATEMENT OF THE ISSUE

As the historical background indicates, there is much uncertainty in the subject of

continuation of membership in the United Nations. First of all, the UN Charter, when dealing

with membership in Chapter II, does not provide any specific rules. Secondly, the matter

seems to be mainly governed by political interests.78

Finally, the legal rules applicable have

not yet been satisfactorily identified, leading the very ICJ to define continuation of

membership as a question “shrouded in uncertainties.”79

Hence, this section aims to guide the Members of the Court in the solution of those two

questions they are called upon to answer. First of all, it will expose the question of the legal

rules dealing with continuation of membership in the organization. Secondly, it will present

the issue of the legal consequences of the exercise of a de facto membership by a State that is

not entitled to continue the membership of its predecessor.

WOOD, Nicholas. Montenegrins Elect to End Union with Serbia. The New York Times, 22 May, 2006. Available at: http://www.nytimes.com/2006/05/22/world/europe/22cnd-monte.html. Last accessed: 28 May, 2006. 73

Serbia and Montenegro sent a letter to the UN Secretariat stating that “The Federal Republic of Yugoslavia, continuing the State, international legal and political personality of the Socialist Federal Republic of Yugoslavia, shall strictly abide by all the commitments that the Socialist Federal Republic of Yugoslavia assumed internationally.” In: Case concerning the Application of the Convention on the Prevention and Punishment of the

Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Preliminary Objections, ICJ, 1996, para. 17. 74

UNSC Resolution 777 of September 19, 1992. 75

UNGA Resolution 47/1 of September 22, 1992. 76

UNGA Resolution 47/229, 1992. 77

UNGA Resolution 55/12 of November 10, 2000. 78

Cf. SCHARF, Musical Chairs…, p. 47- 49, and, infra, at 2.2.2. 79

So defined the ICJ in the Case concerning Legality of Use of Force (Serbia and Montenegro v. Belgium), ICJ,

2000, para. 79.

25

3.1 Legal rules that provide for continuation of membership in the

UN

3.1.1 The principles on continuation of membership agreed by the UN General

Assembly

The most indicative rule on continuation of membership ever stated consists of the two

principles agreed by the UN General Assembly (UNGA) when it dealt with the

dismemberment of British India. At that time, the representative of Argentina at the First

Committee of the UNGA (at that time known as “Politics and Security”) contested the

Secretariat opinion that, differently from India, Pakistan should be admitted as a new

member, advocating that Pakistan also had a right to “inherit” British India’s membership.80

The First Committee, then, referred to the UNGA Sixth Committee (Legal Committee) the

following question:

What are the legal rules to which, in the future, a State or States entering into

international life through the division of a Member State of the United Nations

should be subject?

On its turn, the Legal Committee adopted the following principles:

1. That, as a general rule, it is in conformity with legal principles to presume that a

State is a Member of the organization of the United Nations does not cease to be a

Member simply because its constitution or its frontier have been subjected to

changes, and that the extinction of the State as legal personality recognized in the

international order must be shown before its rights and obligations can be considered

thereby to have ceased to exist.

2. That when a new State is created, whatever may be the territory and the

population which it comprises and whether or no they formed part of a State

Member of the United Nations, it cannot under the system of the Charter claim the

status of a Member of the United Nations unless it has been formally admitted as

such in conformity with the provisions of the Charter.

Beyond that, each case must be judged according to its merits.81

These principles are certainly not binding per se.82

Notwithstanding, they must be taken into

account for two reasons. Firstly, they reflected an understanding of the majority of the UN

80

See UNITED NATIONS, Yearbook 1947-48…, p. 39-40. 81

See UNITED NATIONS, Yearbook 1947-48…, p. 40. 82

Since the UN Charter does not empower the UNGA to establish principles on membership under Chapter II.

See also Chapter IV, which deals with the recommendatory nature of most of the UNGA’s decisions.

26

members at that time and have never been opposed to so far.83

Secondly, according to the

UN Charter, the UNGA has the final word on decisions on membership. Although the

Security Council is the only organ entitled to propose that a State is admitted, suspended or

expelled of the organization, it is solely the UNGA that has the power to decide on these

matters. Such division of competence was explained by the ICJ in the following terms:

In connection with the suspension of rights and privileges of membership and

expulsion from membership under Articles 5 and 6, it is the Security Council which

has only the power to recommend and it is the General Assembly which decides and

whose decision determines status.84

Therefore, the UNGA principles on continuation of membership may be regarded as

somehow authoritative.85

An analysis of their contents is consonantly necessary.

3.1.1.1 State succession and State continuity

Principle number 2 states that when a new State is created it cannot under the Charter claim

the status of a UN member. The first difference to be drawn, thus, is that between State

succession and State continuity.86

State succession, as defined by the Vienna Convention on State Succession in respect of

Treaties,87

is “the replacement of one State by another in the responsibility for the

international relations of territory”.88

State continuity, on its turn, takes place when a State

that suffers considerable changes (for instance, dismemberment) keeps its original legal

personality and particular rights and duties.89

This means that a successor State90

is

necessarily a new international person, while a “continuator” is the same international person

of before in spite of the territorial, political or demographical changes it suffered.

83

The voting records of the principles were as follows: 30 votes in favor, 1 against and 2 abstentions for principle number 1; 39 votes in favor and 3 abstentions for principle number 2; and 45 votes in favor and 2 abstentions for the provision that each case will be judged according to its merits. 84

Advisory Opinion on Certain Expenses of the United Nations, ICJ, 1962, para. 163. See also the Advisory Opinion on the Competence of the General Assembly for the Admission of a State in the UN, ICJ, 1950. 85

An indication of this is that they were taken into account by the International Law Commission (ILC) in its

commentaries to article 4 of the draft articles that were later adopted as the Vienna Convention on Succession in respect of Treaties. See UNITED NATIONS. Yearbook of the International Law Commission: 1974. v. II. New York, 1975, p. 178 86

In this Study Guide, the term “continuation” is always employed in connection with the term “membership”, while the term “continuity” is employed in connection to the term “State”. Since “continuation of membership” and “State continuity” are very interrelated concepts – and as scholars do not use a uniform nomenclature – it is didactically convenient to make such a differentiation. 87

Vienna Convention on Succession of States in Respect of Treaties, signed on August 23, 1978 and entered

into force on November 6, 1996. 88

Vienna Convention…, article 1(b). The hypotheses of State succession are described in the Vienna Convention on Succession of States in Respect of Treaties: annexation of a territory to another State (part II), decolonization (part III), unions of States (part IV, articles 31-33), and separation of States (part IV, arts. 34-37). On State succession, see, generally, O’CONNEL, Daniel Patrick. State succession in relation to new States. Recueil des Cours, t. 130, II. Hague: International Law Academy, 1970. 89

BRONWLIE, Ian. Principles of International Public Law. 6. ed. London: Oxford Press, p. 80. 90

According to the Vienna Convention…, article 1(d), successor State “means the State which has replaced

another State on the occurrence of a succession of States”.

27

According to principle number 2 continuation of membership depends on State continuity.

Membership in the UN is therefore a right intrinsically personal.91

In this sense, one may

concludes that all successor States shall be required to apply for new membership in the

organization.92

At this point, it is necessary to say that the division of States and State succession are two

inseparable phenomena. Succession happens every time a State is dismembered.93

What is

important in these cases is to determine whether all States that emerge from the dismembered

State are its successors or whether one of them keeps its legal personality. In this last

situation, State continuity will take place for the State keeping the original personality while

State succession will occur for the other States that emerged from the original territory.

3.1.1.2 The difficulties involved in State continuity

Although principle number 2 seems very clear, the most difficult issue in dealing with

continuation of membership is to determine when continuity has taken place or not. In the

words of Prof. Oppenheim:

“[T]he question whether all the new territorial units [when a State breaks up so that

its whole territory henceforth comprises two or more new States] are properly to be

regarded as new States, or whether one of them constitutes a continuation, much

diminished, of the original State is not always easy to answer, and raises complex

issues as to the circumstances in which a State ceases to be the same States.”94

Principle number 1 gives us a clue when it states that a member of the UN “does not cease to

be a Member simply because its constitution or its frontier have been subjected to changes”

an that the extinction of a State “must be shown before its rights and obligations can be

considered thereby to have ceased to exist”. A presumption in favor of continuity is therefore

established.

But how can the extinction of a State be shown? What kinds of modifications are powerful

enough to turn a State into a new State?

91

See ZEMANEK, Karl. State succession after decolonization. Recueil des Cours, t. 116, III. Hague:

International Law Academy, 1965, p. 253. 92

The ILC observed in its commentaries to article 4 of the draft articles succession in respect of treaties that “practice appears now to have established the principle that a new State is not entitled automatically to become a party to the constituent treaty and a member of the organization as a successor State, simply by reason of the fact that at the date of the succession its territory was subject to the treaty and within the ambit of the organization.” (UNITED NATIONS, Yearbook of the ILC: 1974…, p. 178). 93

An evidence of this logical conclusion is article 15 of the Vienna Convention, which establishes rules for State succession when the predecessor State continues to exist. 94

OPPENHEIM, International Law: a Treatise. vol. 1, 1948, p. 204.

28

The International Law Commission (ILC), commenting article 35 of the Vienna Convention

on Succession, affirmed that the legal personality disappears when the State is dissolved.95

But when does dissolution takes place?

There are two positions on this matter. The first relies on objective elements – like those of

statehood96

– supposed to define the legal personality of the State. The second, on its turn, is

based on the position adopted by the other States of the international community – or, in the

present case, by the members of the UN – in face of the dispute.

Giorgio Cansacchi, in his course at The Hague Academy of International Law, concludes

that the legal personality of a State depends on the integrity of its people, which means that

succession takes place when the demographical core is affected.97

Other scholars98

affirm

that a plurality of objective factors – such as population, territory, preservation of the

governmental machinery and capability of fulfilling international obligations – determine

whether dissolution occurred or not.

However, as Judge Kreca warned in his separate opinion in the Case concerning Legality of

Use of Force, the rules on continuity of States “are not quite clear and crystallized”.99

It is a

difficult task to determine the role that each so-called objective element should play in taking

a final decision on succession and continuity.

The second position on the matter is that State continuity is established by the attitude of the

other members of the international community. In this sense, State recognition – which

normally confirms but does not define status100

– is likely to play a more effective role.101

Judge ad hoc Dimitrijevic opines that:

An international decision on continuity of States is one of the decentralized acts of

the international community, essentially similar to that on the recognition of States.

Whether an entity is recognized as a State depends not on its self-perception but on

95

UNITED NATIONS, Yearbook of the ILC: 1974…, p. 265. Article 35 of the Vienna Convention deal with State succession when the predecessor State continues to exist. The Arbitration Commission of the European Community Peace Conference of Yugoslavia of 1991 (Badinter Commission) follows the same opinion: “The dissolution of a State means that it no longer has legal personality, something which has major repercussions in international law”. (Opinion No. 8, in: HARRIS, D.J. Cases and Materials on International Law. 5. ed. London: Sweet & Maxwell, 1998, p. 125-127) 96

Article 1 of the Montevideo Convention on Rights and Duties of States, signed on December 26, 1933, and entered into force on December 26, 1934, is generally quoted by scholars: “The state as a person of international law should possess the following qualifications: (a) permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other States.” 97

CANSACCHI, Giorgio. Identité et continuité des sujets internationaux. Recueil des Cours, t. 130, II. Hague: International Law Academy, 1971, p. 88. 98

See, inter alia, SCHARF, Musical Chairs…, p. 67, and LLOYD, David O. Succession, secession, and State membership in the United Nations. New York University Journal of International Law and Politics, Summer,

1994, p. 794-796. This last author also mentions as a criterium for continuity the willingness to abide by the UN Charter, which is one of the requisites for admission in the UN under article 4(1) of the UN Charter. 99

Legality of Use of Force… (Separate Opinion of Judge Kreca), para. 24. 100

On the law of State recognition, see BRONWLIE, Principles of public international law, p. 85-104. 101

The Badinter Commission (see, supra, note 34) stated that “while recognition of a State by other States has only declarative value, such recognition, along with membership of international organizations, bears witness to these States’ conviction that the political entity so recognized is a reality and confers on it certain rights and obligations under international law”. (Opinion No. 8, in: HARRIS, Cases and Materials on International Law…, p.

125-127)

29

the perception of others. Furthermore, there are no criteria which, when fulfilled,

compel other States to recognize a candidate for statehood. Even if there are, in

theory, some criteria on State recognition, there are none on continuity, so that the

full scope of appreciation remains with other States.102

In any case, as the matter remains yet unsolved, the members of the Court are expected to

find whether objective elements, recognition or both combined are able to define when a

State retains its membership in the UN after being subjected to dismemberment.

3.1.2 The practice of the United Nations

Even though the UNGA’s principles seem to govern the subject of continuation of

membership, it is relevant to verify whether they are reflected in the UN practice. Could the

UN practice establish a different rule?

3.1.2.1 The relevance of the UN practice

The practice of international organizations may be useful for solving complicated issues of

interpretation.103

The ICJ has already recognized the legal relevance of UN practice in

interpreting provisions of the UN Charter in several occasions.104

In the Advisory Opinion on South West Africa, for instance, South Africa claimed that the

UNSC’s resolution that requested the advisory opinion was not valid because two permanent

members had abstained. South Africa was relying on article 27 of the Charter, which requires

that UNSC resolutions be adopted “with the concurring votes of the [five] permanent

members”. The ICJ, nevertheless, did not accept this argument since the procedure of

approving UNSC resolutions with the abstentions of permanent members “ha[d] been

generally accepted by Members of the United Nations and evidences a general practice of

that Organization.”105

102

Application for Revision of the Judgment of 11 July 1996 in the Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ, 2003 (Dissenting Opinion of Judge Dimitrijevic), para. 45. 103

See BRONWLIE, Principles of public international law, p. 605. 104

See, apart from the Advisory Opinion on South West Africa, the Advisory Opinions on Certain Expenses of the UN and the Advisory Opinion on the competence of the UNGA for the admission of new members. In the

first, the Court had to answer whether certain expenses with peacekeeping should be deemed as contained in the “budget” of the organization, according to article 17 of the Charter. It answered the question in the affirmative pondering, inter alia, that “[i]t [was] a consistent practice of the General Assembly to include in the annual budget resolutions, provision for expenses relating to the maintenance of international peace and security” (para. 160). In the second, the ICJ analyzed whether the absence of a recommendation by the SC for membership could be treated as an unfavorable recommendation on which the GA might decide. It observed that “such a recommendation ha[d] never been made in practice”, and that, therefore, the Charter indeed required that the SC recommendation was affirmative. 105

Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in

30

Therefore, UN practice may also be deemed by the Members of the Court somehow

authoritative to solve the issue on continuation of membership.106

3.1.2.2 Making sense of UN precedents

In this Guide’s historical background the precedents107

of India, Russia and Serbia and

Montenegro were already referred to. Now, they will be compared and contrasted so that the

Members of the Court can have a preliminary idea of what guidelines on continuation of

membership, if any, are laid down by UN practice.

Two main similarities approximate the Indian and Russian precedents (in which there was

continuation), distancing them from the Serbian precedents (in which there was not

continuation).108

First, India and Russia encompassed a great majority of the land mass

(75%), population (80% and more than 50%, respectively), and natural resources of British

India and Soviet Union, while Serbia and Montenegro kept only 40% of the territory and

45% of the population of its predecessors. Secondly, in the cases of India and Russia, there

were devolution agreements109

between the States that emerged from the former territory

(India and Pakistan and the fifteen “Soviet Republics”, respectively) entitling India and

Russia to continue the legal personality of the predecessors; conversely, all the former

Yugoslav Republics fiercely opposed that Serbia and Montenegro continued the SFRY. On

the weight of these agreements, Justice ad hoc Dimitrejevic opines:

There have not been many instances of disintegration of a State, but in all such cases

the general response regarding continuity has depended primarily on the attitude of

the other States which emerged on the territory of the State which had ceased to

exist. If there was an agreed arrangement, other members of the international

community would generally follow suit. In the case of the SFRY there was no

agreement: the claim of the FRY was contested by Croatia, the Former Yugoslav

Republic of Macedonia, Slovenia and, importantly, Bosnia and Herzegovina, i.e., all

other States which had emerged from the former SFRY. That is the unique feature of

this situation. The continuation of the SFRY by the FRY was not a matter to be

decided only by the FRY, or exclusively by the FRY and other successor States of

the SFRY, but, as confirmed by the United Nations Office of Legal Affairs (see

para. 44 above), remained dependent on a decision to be taken by other actors.110

Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ, 1971, para. 22. 106

However, Professor Bronwlie warns that “the practice of political organs involves elements of politics and opportunism; and what should be referred to, subject to the constitutional issue, is the reasoning behind the practice, which can reveal its legal relevance, if any”. (BRONWLIE, Principles of International Law…, p. 605). 107

The term “precedent” is not employed in this Study Guide in the sense of “judicial decisions”, but in its the broader meaning of an action or decision that has happened in the past and that is seen as an example to be

followed in a similar situation. 108

The data employed in this comparison were extracted from SCHARF, Musical Chairs…, p. 50-52 and BLUM, Yehuda Z. UN membership of the “new” Yugoslavia: continuity or break? American Journal of International Law, October, 1992, p. 833. 109

“Devolution agreements are general statements of intention concerning the future enforcement of pre-existing treaties between the predecessor and a third state” (MARTINS, Marco A. An alternative approach to the international law of State succession: lex naturae and the dissolution of Yugoslavia. Syracuse Law Review, 1993, p. 1029). 110

Application for Revision… (Dissenting Opinion of Judge Dimitrejevic), para. 46.

31

Nevertheless, one can find some incongruence in the treatment the UN dispensed to the

Russian and Serbian cases. That all former Soviet Republics had agreed that the USSR no

longer existed as a geopolitical reality111

should, in principle, have prevented Russia – a new

State – to continue the USSR’s membership according to UNGA’s principle number two.

Moreover, the Serbian precedent is not necessarily different from the Indian and the Russian

precedents when one considers that Serbia and Montenegro has kept a relatively substantial

portion of the territory and (the core of the) population of the SFRY, as well as its name,

capital city, main resources and governmental machinery.112

These objections might lead to the conclusion that UN practice does not consecrate objective

elements to govern continuation of membership as it seems in a first view, but reflects the

weight of the recognition of other States on the matter. Both Indian and Russian claims of

continuity received prompt recognition within the UN, while the Serbian claim was opposed

by the majority of the UN members since the very beginning. However, is such a valid

conclusion? Can one simply disregard the territorial, demographical and structural factors

common to the precedents?113

A precedent not referred to in the historical background may make this question even more

difficult. In 1958, Syria and Egypt united in order to compose a new State, the United Arab

Republic. This union lasted only three years, and, upon its dismemberment, Syria required

that its original membership was resumed, facing no objections at all.114

If principle number 2 was to be applied, Syria could not have been allowed to resume its

membership, since it had ceased to exist as an international person during those three years.

Therefore, the Syrian precedent might be viewed either as supportive of the idea that

recognition plays the major role on continuation of membership or as an evidence that the

UN practice, in fact, is not governed by legal standards (a very radical conclusion).115

On the other hand, the Syrian precedent suggests that principle number two should not be

literally interpreted for there is the possibility that the legal personality of a State is

“suspended” for a lapse of time – when the new State created – and reestablished later –

when the predecessor reappears.116

Is this idea compatible with the law governing succession

and continuity exposed above?

111

See, supra, the “Historical Background”. 112

See BLUM, UN membership and the “new” Yugoslavia…, p. 831-832 and BLUM, Yehuda. Correspondents’ agora: UN membership of the former Yugoslavia. American Journal of International Law, April, 1993. 113

Schaffer and Snyder, for example, ponder that continuation of membership is more likely to take place when there is a combination of the objective elements and recognition. (SCHAFFER, Ellen G.; SNYDER, Randall J. Contemporary practice of public international law. New York: Oceana, 1997, p. 124-126). 114

See UNITED NATIONS. Yearbook of the United Nations: 1961. New York: Department of Public Information, 1961, p. 168. 115

For an evaluation of the Syrian precedent, see ZEMANEK, State succession after decolonization…, p. 248-249. The author states that “[p]resumed continuance of the Syrian State as a person of international law during the Union is legally untenable” and that its resumption of membership “was contrary to an established practice” (p. 249). 116

At this point, it is important to highlight a potentially relevant theoretical differentiation between continuity (continuité) and identity (identité) made by Professor Cansacchi. He defines the first as the situation where a

State continues the same in spite of the modification, and the second as the situation where a new State’s

32

Therefore, although UN practice is not altogether uniform, certain patterns – including

objective elements and recognition – arise from the aforementioned precedents. It is for the

Members of the Court to identify those legally relevant to answer the present Advisory

Opinion.

3.2 Problems arising from continuation de facto of membership in

the UN

So far, this Guide has been dealing with the issue of what criteria establish a “right of

continuity” in favor of a dismembered State. But a question of a pragmatic nature remains: if

it is determined that a State (for example, Serbia and Montenegro) does not have this “right

of continuity”, what is the treatment to be dispensed for the period when it exercised a de

facto membership in the UN? In the lapse of time between dismemberment and the

admission of the State as a new member (or its expulsion from the UN), was this State a

member of the UN or not?

This question is paramount for two reasons. First, membership in the UN can only be

suspended or terminated by the General Assembly,117

which means that a State – having or

not the “right of continuity” – is likely to continue de facto the membership until the UNGA

decides to terminate it. Second, there may be a period when it is not clear whether the State

has or not a “right of continuity”, and, in this case, it is natural that the State continues de

facto its original membership until a final decision on the matter is taken.

An analysis of the situation of Serbia and Montenegro will help to illustrate the content of

the second question that the Members of the Court are required to answer by the UNGA.

3.2.1 The ICJ decision on the situation of Serbia and Montenegro

Although the SFRY was dissolved in 1992, Serbia and Montenegro renounced to its claim of

continuity only in 2000, when it applied for new membership in the UN.118

From then on, it

became clear that Serbia and Montenegro was a new State. But from 1992 to 2000, its

situation was not clear at all.

Instead of terminating or suspending the SFRY’s membership, the UNGA only affirmed that

Serbia and Montenegro could not continue it automatically and that it had to apply for new

identification with the original State is fictional. Thus, when identity takes place there is not a real continuity, but “a period of time more or less long in which the old State no longer existed and the new State, constituted on the former’s territory, was not yet created” (CANSACCHI, Identité et continuité des sujets internationaux…, p. 9-10). 117

See, supra, at 1.1. 118

See, supra, the “Historical Background”.

33

admission, and, accordingly, suspended Serbia and Montenegro from the its works and from

the ECOSOC’s.119

These actions, although revealing the position of the international

community on the status of Serbia and Montenegro,120

allowed it to enjoy a sui generis

position, participating in all the remaining organs and agencies of the organization,

contributing for the budget, and having its flag flied at the UN Headquarters.121

This sui generis position caused a great impact on the two cases in which Serbia and

Montenegro was a party: the Case concerning the Application of the Convention on the

Prevention and Punishment of the Crime of Genocide (as Respondent), and the Case

concerning Legality of the Use of Force (as Applicant). To ascertain its jurisdiction ratione

personae over those disputes, the Court had to determine that Serbia and Montenegro was a

member of the UN at the time the applications were filed (1993 and 1999, respectively); if

this was not the case, the Court would not be “open” to Serbia and Montenegro according to

article 35(1) of the ICJ Statute.

In the Case concerning the Genocide Convention, the Court simply avoided to rule on the

matter. In the Case concerning Legality of Use of Force, however, the Court decided that

since Serbia and Montenegro had been admitted as a new member of the UN, it could not

have been a member of the organization when the case was filed in 1999:

In the view of the Court, the significance of this new development in 2000 is that it

has clarified the thus far amorphous legal situation concerning the status of the

Federal Republic of Yugoslavia vis-à-vis the United Nations. (…) [I]n light of the

legal consequences of the new development since 1 November 2000, the Court is led

to the conclusion that Serbia and Montenegro was not a Member of the United

Nations, and in that capacity a State party to the Statute of the International Court of

Justice, at the time of filing its Application to institute the present proceedings

before the Court on 29 April 1999.122

Therefore, the Court disregarded the fact that Serbia and Montenegro was exercising de

facto, although feebly, the SFRY’s membership in the UN. It simply concluded that “the sui

generis position of the Applicant could not have amounted to its membership in the

Organization.”123

119

What is different from suspending the membership as a whole pursuant to article 5 of the UN Charter. 120

“While it is clear (…) that these resolutions reflected a position endorsed by the vast majority of the Members of the United Nations, they cannot be construed as conveying an authoritative determination of the legal status of the Federal Republic of Yugoslavia within, or vis-à-vis, the United Nations” (Legality of Use of Force…, para.

67) 121

See Legality of Use of Force…, para. 62. 122

Legality of Use of Force…, para 79. 123

Legality of Use of Force…, para. 78. The Court pronounced itself on the fact that Serbia and Montenegro contributed for the budget of the organization by simply stating that “in the absence of any authoritative determination on the legal status of the Federal Republic of Yugoslavia within, or vis-à-vis, the United Nations, the Secretariat, as the administrative organ of the Organization, simply continued to keep to the practice of the status quo ante that had prevailed up to the break-up of the Socialist Federal Republic of Yugoslavia in 1992,

pending such a determination.” (para. 70)

34

3.2.2 A counterpoint to the ICJ’s decision on the situation of Serbia and

Montenegro

The arguable inequity of the ICJ’s ruling on the Case Concerning Legality of Use of Force,

by declaring that the participation of eight years of Serbia and Montenegro in the works of

the UN amounted to nothing, led many judges to criticize such the decision,124

affirming

that:

The Court has also stated that “the significance of this new development in 2000 is

that it has clarified the thus far amorphous legal situation concerning the status of the

Federal Republic of Yugoslavia vis-à-vis the United Nations” (para. 79). Without

specifying whether this “clarification” refers to the period 1992-2000, the Court

asserts that it has now become “clear that the sui generis position of the Applicant

could not have amounted to its membership in the Organization”. We find this

proposition far from self-evident and we cannot trace the steps of the reasoning.

Such grounds seem to us to be less legally compelling and therefore less certain, and

more open to different points of view, than the grounds relied upon by the Court thus

far and which are now set aside by the Court.125

These “grounds relied upon by the Court thus far” consist of some findings of the ICJ in the

Application for Revision of the Judgment of 11 July 1996 in the Genocide Case in the sense

that Serbia and Montenegro was a member of the UN from 1992 to 2000. The Court had

found that “resolution 47/1 did not inter alia affect the Federal Republic of Yugoslavia’s

right to appear before the Court or to be a party to a dispute before the Court under the

conditions laid down by the Statute”126

and, foremost, that:

General Assembly resolution 55/12 of 1 November 2000 [through which Serbia and

Montenegro was admitted as a new member in the UN] cannot have changed

retroactively the sui generis position which the Federal Republic of Yugoslavia

found itself in vis-à-vis the United Nations over the period 1992 to 2000, or its

position in relation to the Statute of the Court.127

Moreover, Justice ad hoc Elabary128

quoted the following dictum of the International

Criminal Tribunal for the former Yugoslavia (ICTY):

Resolution 47/1 did not deprive the FRY of all the attributes of United Nations

membership: the only practical consequence was its inability to participate in the

work of the General Assembly, its subsidiary organs, conferences or meetings

124

It is important to highlight that the Court found, moreover, that it had not jurisdiction ratione materiae under the Convention on the Prevention and Punishment of the Crime of Genocide. Therefore, even if the ICJ had determined that Serbia and Montenegro was indeed a member of the UN from 1992 to 2000, the decision on the preliminary objections would have been the same. See the opinion of Justice Elabary. 125

Legality of Use of Force… (Declaration of Vice-President Ranjeva, Judges Guillaume, Higgins, Kooijmans, Al-Khasawneh, Buergenthal and Elaraby), para. 12 (emphases added). 126

Application for Revision…, para. 70. 127

Application for Revision…, para. 71. 128

Legality of Use of Force… (Separate Opinion of Judge Elabary), para. 13.

35

convened by it. Apart from that, it continued to function as a member of the United

Nations in many areas of the work of the United Nations . . . Thus, while the FRY’s

membership was lost for certain purposes, it was retained for others . . . The proper

approach to the issue of the FRY membership of the United Nations in the period

between 1992 and 2000 is not one that proceeds on a[n] a priori, doctrinaire

assumption that its exclusion from participation in the work of the General

Assembly necessarily meant that it was no longer a member of the United

Nations. As the FRY membership was neither terminated nor suspended by General

Assembly resolution 47/1, it is more appropriate to make a determination of its

United Nations membership in that period on an empirical, functional and

case-by-case basis.129

This “empirical/functional” approach upheld by the ICTY may be an interesting tool for

solving situations as the Serbia and Montenegro’s for it validates the acts performed before a

final decision on the right of a State subjected to dismemberment to continue the original

membership is taken.130

Furthermore, it prevents that the State is discriminated, in

accordance with Judge Rezek’s opinion that “[i]t would be unfair, and contrary to

fundamental legal principles, to deny a State a particular status within a given system as far

as some effects were concerned but to recognize that status on a selective basis in respect of

others.131

”

Finally, Members of the Court may find it useful to take into account the opinion of Justice

Vereschetin in the sense that a Yugolsavia should not have been penalized for upholding its

claim of continuity:

Yugoslavia cannot be blamed for its long-lasting attempts to assert its status as the

continuator of the former Yugoslavia, for a State cannot be faulted for trying to

pursue its national interests (however it perceives them) unless in doing so it violates

the rules and principles of international law.

Therefore, in answering the second question of the present Advisory Opinion, members of

the Court shall make their best efforts to balance carefully the position adopted by the ICJ

and the criticisms it received from the Judges.

4 REFERENCES

129

Prosecutor v. Milan Milutinovic, Case No. IT-99-37-PT, Decision on Motion Challenging Jurisdiction, ICTY, 2003, paras. 37-38; Appeal dismissed, Case No. IT-99-37-AR72.2, Decision of 12 May 2004 (emphasis added). 130

In this sense, it might be useful to make an analogy with article 69(2)(b) of the Vienna Convention on the Law of

Treaties, signed on May 23, 1969 and entered into force on January 27, 1980, which provides for the validation of “acts

performed in good faith before the invalidity was invoked are not rendered unlawful by reason only of the invalidity of the

treaty.” 131

Application for Revision... (Declaration of Judge Rezek), para. 3.

36

4.1 Books and Articles

BLUM, Yehuda Z. UN membership of the “new” Yugoslavia: continuity or break?

American Journal of International Law, October, 1992, p. 833.

_____________. Correspondents’ agora: UN membership of the former Yugoslavia.

American Journal of International Law, April, 1993.

CANSACCHI, Giorgio. Identité et continuité des sujets internationaux. Recueil des Cours, t.

130, II. Hague: International Law Academy, 1971, p. 88.

HAGEN, William W. The Balkans' lethal nationalisms. Foreign Affairs, v. 78. New York:

Jul/Aug, 1999.

HARRIS, D.J. Cases and Materials on International Law. 5. ed. London: Sweet & Maxwell,

1998, p. 125-127)

LLOYD, David O. Succession, secession, and State membership in the United Nations. New

York University Journal of International Law and Politics, Summer, 1994, p. 794-796.

MARTINS, Marco A. An alternative approach to the international law of State succession:

lex naturae and the dissolution of Yugoslavia. Syracuse Law Review, 1993, p. 1029.

O’CONNEL, Daniel Patrick. State succession in relation to new States. Recueil des Cours, t.

130, II. Hague: International Law Academy, 1970.

OPPENHEIM, International Law: a Treatise. vol. 1, 1948, p. 204.

SCHAFFER, Ellen G.; SNYDER, Randall J. Contemporary practice of public international

law. New York: Oceana, 1997, p. 124-126.

SCHARF, Michael P. Musical chairs: the dissolution of States and membership in the United

Nations. Cornell International Law Journal, Winter, 1995, p. 32-39.

UNITED NATIONS. Yearbook of the International Law Commission: 1974. v. II. New

York, 1975, p. 178

_____________. Yearbook of the United Nations: 1947-48. New York: Department of

Public Information, 1948, p. 39-40.

_____________. Yearbook of the United Nations: 1961. New York: Department of Public

Information, 1961, p. 168.

WOOD, Nicholas. Montenegrins Elect to End Union with Serbia. The New York Times, 22

May, 2006. Available at: http://www.nytimes.com/2006/05/22/world/europe/22cnd-

monte.html. Last accessed: 28th May, 2006.

37

ZEMANEK, Karl. State succession after decolonization. Recueil des Cours, t. 116, III.

Hague: International Law Academy, 1965, p. 253.

4.2 International Cases

Advisory Opinion on Certain Expenses of the United Nations, International Court of Justice,

1962.

Advisory Opinion on the Competence of the General Assembly for the Admission of a State

in the UN, International Court of Justice, 1950.

Advisory Opinion on the Legal Consequences for States of the Continued Presence of South

Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276

(1970), International Court of Justice, 1971.

Application for Revision of the Judgment of 11 July 1996 in the Case concerning the

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

(Bosnia and Herzegovina v. Serbia and Montenegro), International Court of Justice, 2003.

_____________. Dissenting Opinion of Judge Dimitrijevic .

_____________. Declaration of Judge Rezek.

Case concerning Legality of Use of Force (Serbia and Montenegro v. Belgium), International

Court of Justice, 2000.

_____________. Separate Opinion of Judge Elabary.

_____________. Separate Opinion of Judge Kreca.

_____________. Declaration of Vice-President Ranjeva, Judges Guillaume, Higgins,

Kooijmans, Al-Khasawneh, Buergenthal and Elaraby.

Case concerning the Application of the Convention on the Prevention and Punishment of the

Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Preliminary

Objections, ICJ, 1996.

Prosecutor v. Milan Milutinovic. Case No. IT-99-37-PT. Decision on Motion Challenging

Jurisdiction, International Criminal Tribunal for the former Yugoslavia, 2003;

Prosecutor v. Milan Milutinovic. Appeal dismissed, Case No. IT-99-37-AR72.2,

International Criminal Tribunal for the former Yugoslavia, Decision of 12 May 2004.