International Court of Justice – Preliminary Objections in Croatia vs. Serbia

On 18 November, the International Court of Justice released its judgment on Preliminary Objections on the case Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia vs. Serbia).

The Court initially remembered the rule that the ICJ is not bound by its own precedents but for reasons of legal certainty, it will not depart from its precedents unless very particular reasons are present:

“53. To the extent that the decisions contain findings of law, the Court will treat them as it treats all previous decisions: that is to say that, while those decisions are in no way binding on the Court, it will not depart from its settled jurisprudence unless it finds very particular reasons to do so. As the Court has observed in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), while “[t]here can be no question of holding [a State] to decisions reached by the Court in previous cases” which do not have binding effect for that State, in such circumstances “[t]he real question is whether, in [the current] case, there is cause not to follow the reasoning and conclusions of earlier cases” (Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 292, para. 28).”

On the establishment of jurisdiction ratione personae, the Court had to decide whether Serbia was a Member of the United Nations, and therefore of the Statute of the Court, in 1999 when the application in the case was made. The Court used a case of the Permanent Court of International Justice to hold for the existence of a rule that, even in case a State was not a member of the United Nations at the moment of the application, but it became before the treating of the case, reasons of judicial economy commanded for keeping irrelevant the irregularity, because the applicant could always file another application.

“85. The Court observes that as to the first of these two arguments, given the logic underlying the cited jurisprudence of the Court deriving from the 1924 Judgment in the Mavrommatis Palestine Concessions case, it does not matter whether it is the applicant or the respondent that does not fulfil the conditions for the Court’s jurisdiction, or both of them — as is the situation where the compromissory clause invoked as the basis for jurisdiction only enters into force after the proceedings have been instituted. The Court sees no convincing reason why an applicant’s deficiency might be overcome in the course of proceedings, while that of a respondent may not. What matters is that, at the latest by the date when the Court decides on its jurisdiction, the applicant must be entitled, if it so wishes, to bring fresh proceedings in which the initially unmet condition would be fulfilled. In such a situation, it is not in the interests of the sound administration of justice to compel the applicant to begin the proceedings anew — or to initiate fresh proceedings — and it is preferable, except in special circumstances, to conclude that the condition has, from that point on, been fulfilled.

86. […] the Court cannot endorse the radical interpretation advanced by Serbia, namely that whenever it is seised by a State which does not fulfil the conditions of access under Article 35, or seised of a case brought against a State which does not fulfil those conditions, the Court does not even have the compétence de la compétence, the competence to decide whether or not it has jurisdiction. […] The Court always possesses the compétence de la competence (see Article 36, paragraph 6, of the Statute).

87. […] That being so, it is not apparent why the arguments based on the sound administration of justice which underpin the Mavrommatis case jurisprudence cannot also have a bearing in a case such as the present one. It would not be in the interests of justice to oblige the Applicant, if it wishes to pursue its claims, to initiate fresh proceedings. In this respect it is of no importance which condition was unmet at the date the proceedings were instituted, and thereby prevented the Court at that time from exercising its jurisdiction, once it has been fulfilled subsequently

[…]

89. […] As stated above (paragraph 85), it is concern for judicial economy, an element of the requirements of the sound administration of justice, which justifies application of the jurisprudence deriving from the Mavrommatis Judgment in appropriate cases. The purpose of this jurisprudence is to prevent the needless proliferation of proceedings. No such consideration obtained in 2004 to justify the Court departing at that time from the principle holding that its jurisdiction must be established at the date of filing of the applications. Indeed, Serbia and Montenegro took care not to ask the Court to do so; while Croatia is asking the Court to apply the jurisprudence of the Mavrommatis case to the present case, no such request was made, or could logically have been made, by the Applicant in 2004.”

On consideration about the jurisdiction ratione materiae, the problem posed by Serbia was that she acceded to the Convention only in 2001 and by casting a reservation against the jurisdiction of the Court. The Court held that in 1992 through a general declaration at the Secretary General, the then Former Republic of Yugoslavia (today Serbia) announced that international obligation of the Socialist Federal Republic of Yugoslavia still bound her.

“108. […] While the practice of making declarations of succession to a treaty or treaties with an indication of the treaty or treaties to which they are intended to relate is of undoubted practical usefulness, the Court is unable to hold that international law regards as wholly ineffective an instrument that identifies by general reference the treaty to which it is addressed, rather than by designating it by its particular name.

109. In the view of the Court, there is a distinction between the legal nature of ratification of, or accession to a treaty, on the one hand, and on the other, the process by which a State becomes bound by a treaty as a successor State or remains bound as a continuing State. Accession or ratification is a simple act of will on the part of the State manifesting an intention to undertake new obligations and to acquire new rights in terms of the treaty, effected in writing in the formal manner set out in the Treaty (cf. Arts. 15 and 16 of the Vienna Convention on the Law of Treaties). In the case of succession or continuation on the other hand, the act of will of the State relates to an already existing set of circumstances, and amounts to a recognition by that State of certain legal consequences flowing from those circumstances, so that any document issued by the State concerned, being essentially confirmatory, may be subject to less rigid requirements of form. Article 2 (g) of the 1978 Vienna Convention on Succession of States in respect of Treaties reflects this idea, defining a “notification of succession” as meaning “in relation to a multilateral treaty, any notification, however framed or named, made by a successor State expressing its consent to be considered as bound by the treaty”. Nor does international law prescribe any specific form for a State to express a claim of continuity.

[…]

117. In sum, in the present case the Court, taking into account both the text of the declaration and Note of 27 April 1992, and the consistent conduct of the FRY at the time of its making and throughout the years 1992-2001, considers that it should attribute to those documents precisely the effect that they were, in the view of the Court, intended to have on the face of their terms: namely, that from that date onwards the FRY would be bound by the obligations of a party in respect of all the multilateral conventions to which the SFRY had been a party at the time of its dissolution, subject of course to any reservations lawfully made by the SFRY limiting its obligations. It is common ground that the Genocide Convention was one of these conventions, and that the SFRY had made no reservation to it; thus the FRY in 1992 accepted the obligations of that Convention, including Article IX providing for the jurisdiction of the Court and that jurisdictional commitment was binding on the Respondent at the date the present proceedings were instituted. In the events that have occurred, this signifies that the 1992 declaration and Note had the effect of a notification of succession by the FRY to the SFRY in relation to the Genocide Convention. The Court concludes that, subject to the more specific objections of Serbia to be examined below, it had, on the date on which the present proceedings were instituted, jurisdiction to entertain the case on the basis of Article IX of the Genocide Convention. That situation continued at least until 1 November 2000, the date on which Serbia and Montenegro became a Member of the United Nations and thus a party to the Statute of the Court.”

The decision encountered strong opposition by the minority of the Court that issued many separate judgments against it. The principles here established could therefore risk not to cristallize into a consistent jurisprudence of the Court.

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