1 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.), Judgment (Int’l Ct. Justice Feb. 26, 2007) [hereinafter Genocide Convention Judgment]. The documents of the Court referred to in this Note are available at the ICJ Web site, <http://www.icj-cij.org>.

2 The term “Yugoslavia” will henceforth be used to designate not only the “Socialist Federal Republic of Yugoslavia” (SFRY), which existed prior to the country’s disintegration in the early 1990s, but also the “Federal Republic of Yugoslavia” of the years 199 2–2000 (FRY-I), and the state of the same name admitted to the United Nations on November 1, 2000 (FRY-II). At the United Nations, FRY-I was usually referred to at the time as the “Federal Republic of Yugoslavia (Serbia and Montenegro).” FRY-II officially changed its name on February 4, 2003, to “Serbia and Montenegro,” and, on the latter’s secession on June 3, 2006, became the “Republic of Serbia.” Montenegro was admitted to the United Nations on June 28, 2006, by General Assembly Resolution 60/264.

3 Macedonia’s admission to the United Nations was delayed by the opposition of Greece to the name of the country, which is identical to that of the northern region of Greece and is claimed by it on historical grounds. Eventually, Macedonia was admitted under the “provisional” name “Former Yugoslav Republic of Macedonia,” with the surrealistic acronym “FYROM,” which has survived to the present day, thus confirming once again the correctness of the maxim “rien ne dure que le provisoire.”

4 UN Doc. A/46/915, Annex II, Declaration (Apr. 27, 1992), at 4, para. 1 (May 7, 1992). A different view was taken as early as 1991 by the Arbitration Commission of the International Conference for Peace in Yugoslavia established by the European Community. In its Opinion No. 1 (Nov. 29, 1991), 31 ILM 1494, 1497, para. 3 (1992), it stated that the SFRY “is in the process of dissolution.” In Opinion No. 8 (July 4, 1992), it concluded that “the process of dissolution of the SFRY . . . is now complete and that the SFRY no longer exists.” Id. at 1523, para. 4. In its Opinion No. 9 of the same date, it added that “[n]ew states have been created on the territory of the former SFRY and replaced it. All are successor states to the former SFRY.” Id. at 1524, para. 1. While all these opinions were given prior to the adoption of Security Council Resolution 777 of September 25, 1992, and of General Assembly Resolution 47/1 of the following day, neither the UN legal counsel in his legal opinion of September 29, 1992, see infra note 8, nor the International Court of Justice in its various Yugoslavia-related pronouncements, saw fit to rely on those opinions. They apparently were of the view—rightly, in the author’s opinion—that the question of FRY-I’s UN membership must be resolved within the framework of the UN Charter, the relevant resolutions, and the established practice of the Organization.

5 See to this effect the statement of U.S. Ambassador Perkins in the UN General Assembly. UN Doc. A/46/PV.86, at 22 (May 29, 1992). He pointedly added that, for its admission to the United Nations, “the so-called Federal Republic of Yugoslavia” would have to prove that it was “a peace-loving” state, one of the requirements laid down in Article 4(2) of the Charter for the admission of new members.

6 SC Res. 757, pmbl. (May 30, 1992).

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

8 Letter Dated 29 September 1992 from the Under-Secretary-General, the Legal Counsel, Addressed to the Permanent Representatives of Bosnia and Herzegovina and Croatia to the United Nations, UN Doc. A/47/485, annex (Sept. 30, 1992) [hereinafter Legal Counsel’s Letter]. It might be added here that on May 5, 1993, the General Assembly, in Resolution 47/229, acting upon the recommendation in Security Council Resolution 821 of the previous day, decided that FRY-I “shall not participate in the work of the Economic and Social Council [ECOSOC].” Some months later, the General Assembly went even further by reaffirming Resolution 47/1 and urging “Member States and the Secretariat in fulfilling the spirit of that resolution, to end the de facto working status of Serbia and Montenegro.” GA Res. 48/88, para. 19 (Dec. 29, 1993) (emphasis added). Surprisingly and rather ironically, the General Assembly did not apply this recommendation to itself, for only six days prior to the adoption of this resolution, it had passed Resolution 48/223, in which it decided that the rates of assessment of Macedonia for the years 1993 and 1994 should be deducted from those of “Yugoslavia” for those years. GA Res. 48/223, para. 4 (Dec. 23, 1993). The Secretariat’s frustration at the confusion created over FRY-I’s membership status is also well reflected in the report of the secretary-general of January 7, 1994, where it is pointed out that the meaning of the phrase “to end the de facto working status of Serbia and Montenegro” had not been defined by the General Assembly and that the “Secretariat is not in a position to take action with regard to questions relating to the status of Member States in the absence of the appropriate decisions being taken by the competent organs of the Organization.” UN Doc. A/48/847, para. 16 (Jan. 7, 1994).

9 See Yehuda, Z. Blum, UN Membership of the “New” Yugoslavia: Continuity or Break? 86 AJIL 830 (1992)Google Scholar; Yehuda, Z. Blum, Reply to Correspondents’ Agora: UN Membership of the Former Yugoslavia 87 AJIL 240, 248 (1993)Google Scholar. For the rates of assessment of FRY-I’s contributions to the United Nations in the years 199 2–2000, see the Court’s judgment in Application for Revision of the Judgment of 11 July 1996 in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugo. v. Bosn.-Herz.), 2003 ICJ Rep. 7, 2 2–23, paras. 4 5–48 (Feb. 3) [hereinafter Application for Revision].

It should be noted that FRY-I’s exclusion from participation in the work of the General Assembly (and subsequently in the work of ECOSOC) was explained by the fact that its claim to be the continuator state of the SFRY “has not been generally accepted.” This differs from the exclusion of South Africa from participation in the General Assembly’s work from 1974 until the end of the apartheid era, which was brought about through the rejection by the General Assembly of South Africa’s credentials. For a survey (and criticism) of the South African case, see Yehuda Z. Blum, Eroding The United Nations Charter 4 3–55 (1993).

10 UN Doc. A/55/528-S/2000/1043, annex (Oct. 30, 2000) (emphasis added).

11 GARes. 55/12 (Nov. 1, 2000), available at <http://www.un.org/Depts/dhl/resguide/r55.htm>.

12 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.), Preliminary Objections, 1996 ICJ Rep. 595 (July 11) [hereinafter 1996 Judgment]. In the course of the proceedings, FRY-I relinquished the fourth of its original seven preliminary objections to the Court’s jurisdiction.

13 Under Article 93(1) of the UN Charter, “All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice.” Article 35(1) of the Statute provides that “[t]he Court shall be open to the states parties to the present Statute.”

14 See Legal Counsel’s Letter, supra note 8.

15 Application for Revision, supra note 9, 2003 ICJ Rep. at 12, para. 8 (emphasis added).

16 Id. at 31, paras. 7 0–71.

17 Id. at 50, para. 28 (Vereshchetin, J., dissenting). Judge Vereshchetin also pointed to the inconsistency of Bosnia-Herzegovina’s position, which affirmed FRY-I’s UN membership for the purpose of suing it in the International Court of Justice but denied it outside the Court at all other United Nations and other international fora. Id. at 4 5–46, para. 16. Yugoslav judge ad hoc Dimitrijević also dissented from the Court’s judgment, stating that FRY-I had at no time been a continuator of the former SFRY, was not a member of the United Nations before November 1, 2000, and thus had no access to the Court in 1996. Id. at 6 3–64, paras. 4 8–4 9 (Dimitrijević, J., dissenting). Judges Vereshchetin, Rezek, and Dimitrijević voted against the judgment’s dispositif, which was supported by ten judges. Id. at 32, para. 75.

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

19 Id. at 52, para. 6 (emphasis added).

20 Judge Rezek’s term expired before the Court delivered its judgment on February 26, 2007, in the Genocide Convention case.

21 FRY-I filed ten separate applications against NATO members Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal, Spain, the United Kingdom, and the United States. By orders of June 2, 1999, the Court removed the applications against Spain and the United States from the list, on the ground that “it manifestly lack [ed] jurisdiction.” Legality of Use of Force (Yugo. v. Spain), Provisional Measures, 1999 ICJ Rep. 761, 773, para. 35 (June 2); Legality of Use of Force (Yugo. v. U.S.), Provisional Measures, 1999 ICJ Rep. 916, 925, para. 29 (June 2).

22 The Court delivered eight separate, but virtually identical, judgments. Reference here and subsequently will be made to the judgment in Legality of Use of Force (Serb. & Mont. v. Belg.), Preliminary Objections, 2004 ICJ Rep. 279 (Dec. 15).

23 Id. at 299, para. 46.

24 Id. at 301, para. 52.

25 Id. at 308, para. 73.The Court pointed out that, in characterizing FRY-I’s status at the United Nations in the years 199 2–2000 as “sui generis” (a term used by the Court as early as 2003 in the Application for Revision case), it was using language “merely descriptive of the amorphous state of affairs in which the Federal Republic of Yugoslavia found itself during this period.” Id., para. 74.

26 Id. at 310, para. 78.

27 Id. at 311, para. 79.

28 Id. at 328, para. 129.

29 Joint Declaration of Vice-President Ranjeva, Judges Guillaume, Higgins, Kooijmans, Al-Khasawneh, Buergenthal and Elaraby, id. at 330.

30 Id. at 333, para. 10 (quoting Application for Revision, supra note 9, 2003 ICJ Rep. at 31, para. 71). The Court, of course, was well aware of a possible conflict with its Application for Revision judgment, stating that it had “to consider . . . the relevance to the present case of the Judgment in the Application for Revision case.” Legality of Use of Force, supra note 22, 2004 ICJ Rep. at 311, para. 80. After correctly stating that the Application for Revision case did not constitute res judicata in the case before it, the Court conceded that the relevance nevertheless had to be examined, since FRY-II had raised the same arguments in the earlier case after being admitted to the United Nations. The Court, however, fell back on the technical argument that, in the Application for Revision case, it had not dealt with the question of FRY-I’s UN membership but merely with the question whether FRY-II’s admission in November 2000 was a “new fact” that could justify a revision of the 1996 judgment in the Genocide Convention case. Id. at 31 1–14, paras. 8 0–90. It concluded that “there is no reason to treat the Judgment in the Application for Revision case as having pronounced upon the issue of the legal status of Serbia and Montenegro [in the 199 2–2000 period] vis-à-vis the United Nations.” Id. at 314, para. 90.

31 Id. at 334, para. 12 (Ranjeva, Guillaume, Higgins, Kooijmans, AI-Khasawneh, Buergenthal, & Elaraby, JJ., joint dec).

32 Id. at 339, para. 12 (Higgins, J., sep. op.). The Court in its judgment did consider the question of discontinuance of the proceedings:

Legality of Use of Force, supra note 22, 2004 ICJ Rep. at 294, para. 33. Noting that “Serbia and Montenegro has not sought a discontinuance” and that it has stated that it “wants the Court to continue the case and to decide upon its jurisdiction,” id. at 297, para. 43, the Court held that for this and other reasons elaborated in the judgment, it “cannot remove the cases concerning Legality of Use of Force from the List, or take any decision putting an end to those cases in limine litis.” Id. at 29 7–98, para. 44.

Addressing this question in his separate opinion, Judge ad hoc Kreča stated that where the Court has effective jurisdiction, summary removal in limine litis at the request of the respondent “is unacceptable. As such, summary removal would be in sharp contradiction with the duty of the Court to examine ex officio the question of its jurisdiction . . .. [I]t might even be said that summary removal in such circumstances would have the meaning of a kind of denial of justice.” Id. at 41 5–16, para. 66 (Kreča, J., sep. op.).

33 Id. at 346, para. 9 (Kooijmans, J., sep. op.).

34 Id. at 35 7–58, para. 13 (Elaraby, J., sep. op.) (emphasis added). Judge Elaraby joined the dispositif because, in his view, the Court lacked jurisdiction ratione materiae. Id. at 370, pt. V.

35 The only judge ad hoc in these cases was Judge Kreča, since the Court, pursuant to Article 31 (5) of the Statute, “had decided . . . that, taking into account the presence upon the Bench of judges of British, Dutch and French nationality, the judges ad hoc chosen by the respondent States should not sit during the current phase of the procedure in these cases.” Legality of Use of Force, supra note 22, 2004 ICJ Rep. at 287, para. 18.

36 Id. at 38 8–89, paras. 2 7–28 (Kreča, J., sep. op.).

37 Genocide Convention Judgment, supra note 1, para. 106.

38 Id., para. 113.

39 Id., para. 117.

40 I.,para. 130.

41 Id., para. 131.

42 Id.

43 Id., para. 132

44 Id., para. 135 (emphasis added).

45 Id.

46 Id., para. 471.

47 Dissenting Opinion of Vice-President Al-Khasawneh, Genocide Convention Judgment, supra note 1, para. 3.

48 Id., para. 6.

49 Id., para. 8.

50 Id., para. 11.

51 Id., para. 14. Judge Al-Khasawneh, it will be recalled, was one of the seven judges in the Legality of Use of Force cases who, while voting for the unanimous dispositif in their joint declaration dissociated themselves from the Court’s reasoning. See note 29 supra.

52 Dissenting Opinion of Vice-President Al-Khasawneh, para. 28.

53 Joint Dissenting Opinion of Judges Ranjeva, Shi and Koroma, Genocide Convention Judgment, supra note 1, para. 2.

54 Id., para. 3.

55 Id., para. 13.

56 Id., para. 17.

57 Declaration of Judge Skotnikov, Genocide Convention Judgment, supra note 1, 1st 3 paras.

58 Separate Opinion of Judge Kreca, Genocide Convention Judgment, supra note 1, para. 48.

59 Id., para. 51.

60 Id., para. 59.

61 This figure excludes the judges ad hoc for Bosnia-Herzegovina (Elihu Lauterpacht in the 1996 judgment, and Ahmed Mahiou in the Application for Revision and the 2007 judgment in the Genocide Convention cases) and for Yugoslavia (Vojin Dimitrijević in the Application for Revision case and Milenko Kreča in the remaining cases).

62 See notes 5 3–56 supra and corresponding text.

63 See note 46 supra and corresponding text.

64 See supra notes 2 9–31.

65 See supra note 28.

66 As has been shown by Rosenne, the applicability of the rule of res judicata deriving from judgments on preliminary objections is problematical even if a question was explicitly decided in the preliminary stage. 2 & 3 Shabtai Rosenne, The Law and Practice of the International Court, 192 0–1996, at 88 3–87, 160 7–10 (4th ed. 2006). In the author’s view, the applicability of this rule is even more questionable when, in the preliminary stage, the Court did not address (and thus did not resolve) an issue for which the status of res judicata is still claimed “by necessary implication,” as occurred in the Genocide Convention case.

67 UN Doc. A/55/PV.48, at 28 (Nov. 1, 2000). He also expressed satisfaction that “[t]he flag of a nation that long ago ceased to exist [that is, the SFRY] will no longer fly at United Nations Headquarters here and elsewhere in the world.” Id.

68 Id. at 31.

69 Id. at 32.

70 Id. at 33.

71 See Legal Counsel’s Letter, supra note 8.

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

73 Id.

74 See supra note 34 and corresponding text (criticism by Judge Elaraby, in his separate opinion in the Legality of Use of Force cases, of the Court’s conclusion that Yugoslavia’s position at the United Nations in the years 199 2–2000 could not have amounted to membership in the Organization); see also Dissenting Opinion of Vice-President Al-Khasawneh, supra note 47, para. 6 (referring to the UN legal counsel’s letter of September 29, 1992, supra note 8, confirming FRY-I’s continuing membership in the United Nations, as the only authoritative legal appraisal of the relevant Security Council and General Assembly resolutions, quoted in text at note 89 infra).

75 To be sure, there are instances that do not conform to the general practice. When the UN membership of the Czech and Slovak Federal Republic lapsed on December 31, 1992, in the wake of the dissolution of Czechoslovakia—a UN founding member—by mutual agreement of its two components, the two successor states—the Czech Republic and the Slovak Republic—were admitted to the United Nations as new members on January 19, 1993, by General Assembly Resolutions 47/221 and 47/222, respectively. The Czech Republic retained the flag of the former Czechoslovakia, while Slovakia chose that of the Slovak state established in 1939 (a fascist vassal of Nazi Germany), with the Slovak coat of arms superimposed on it. Since the national anthem of Czechoslovakia had consisted of two parts—one Czech and one Slovak—each of the two new republics retained its own part. After the dissolution of the Soviet Union in December 1991, the Russian Federation became its continuator at the United Nations and took over its UN seat. Yehuda, Z. Blum, Russia Takes over the Soviet Union s Seat at the United Nations 3 Eur. J. Int’l L. 354 (1992)Google Scholar. The former Soviet flag was replaced by the tricolor of the former Soviet Russian Republic, while the former Soviet anthem was retained, albeit with a new text. The Federal Republic of Germany of the post-World War II period restored the flag of the Weimar Republic; while it retained the tune of the former anthem, the first stanza of the “Deutschlandlied” sung before 1945 was replaced by the third stanza.

Of course, a mere change of name by a state does not usually entail a change of its international personality. Many new states—primarily in Asia and Africa— changed their names in attempts to shed their colonial past. For example, in 1989 the military junta changed the name Burma to Myanmar (a name going back to the thirteenth centuiy). The United Nations recognized the new name, but the United States, the United Kingdom, Canada, and Australia have refused to do so, for fear of appearing to confer legitimacy on the ruling junta. The European Union refers to Burma/Myanmar. Likewise, in 1972 Ceylon became Sri Lanka (in Sanskrit “the resplendent land”—as the island is described in the Mahabbarata and the Ramayana).

A curious situation arose in 1984 when Upper Volta, a nonpermanent member of the Security Council in the years 198 4–1985, presided over the Council in August 1984, and, having changed its name in September 1984 to Burkina Faso (meaning “the land of the upright people” in the local languages), presided over it again, under its new name, in October 1984.

76 UN Charter Art. 92 (emphasis added).

77 Legality of Use of Force, supra note 22, 2004 ICJ Rep. at 341, para. 18 (Higgins, J., sep. op.).

78 See supra note 21.

79 Joint Dissenting Opinion of Judges Ranjeva, Shi and Koroma, supra note 53, para. 2.

80 In Greek mythology Scylla and Charybdis are two whirlpools so placed on the opposite sides of the Strait of Messina that separates Italy proper and Sicily that it is hard to steer clear of one without being caught by the other. Hence the proverb “He who wishes to avoid Charybdis, falls into Scylla,” to show that in our eagerness to avoid one evil, we often fall into a greater one.

81 See supra notes 5 3–56 and corresponding text.

82 Legality of Use of Force, supra note 22, 2004 ICJ Rep. at 339, para. 12 (Higgins, J., sep. op.).

83 See supra note 19 and corresponding text.

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

85 Report of the Rapporteur of Committee IV/2, Doc. 933, IV/2/42, 13 UNCIO Docs. 703, 709 (1945).

86 Goodrich, Hambro, & Simons, supra note 84, at 15.

87 See supra note 34 and corresponding text.

88 Legal Counsel’s Letter, supra note 8.

89 Dissenting Opinion of Vice-President Al-Khasawneh, supra note 47, para. 6 (emphasis added).

90 Id., para. 15.