|III.||The International Court of Justice|
|4.||JUDGMENTS OF THE INTERNATIONAL COURT OF JUSTICE|
|4.4.||Revision of Judgments|
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 Genocid
(Bosnia and Herzegovina v. Yugoslavia)
Judgment of 3 February 2003
[pp. ] 15. Article 61 provides
for revision proceedings to open with a judgment of
the Court declaring the application admissible on the
grounds contemplated by the Statute; Article 99 of
the Rules makes express provision for proceedings on
the merits if, in its first judgment, the Court has
declared the application admissible.
Thus the Statute and the Rules of Court foresee a two-stage procedure (Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1985, p. 197, para. 8). The first stage of the procedure for a request for revision of the Courts judgment should be limited to the question of admissibility of that request (ibid., para. 10).
16. Therefore, at this stage the Courts decision is limited to the question whether the request satisfies the conditions contemplated by the Statute. Under Article 61 of the Statute, these conditions are as follows:
(a) the application should be based upon the discovery of a fact; (b) the fact, the discovery of which is relied on, must be of such a nature as to be a decisive factor; (c) the fact should have been unknown to the Court and to the party claiming revision when the judgment was given; (d) ignorance of this fact must not be due to negligence; and (e) the application for revision must be made at latest within six months of the discovery of the new fact and before ten years have elapsed from the date of the judgment.
17. The Court observes that an application for revision is admissible only if each of the conditions laid down in Article 61 is satisfied. If any one of them is not met, the application must be dismissed.
[pp. ] 66. As recalled above (see paragraph 19), the FRY claims that the facts which existed at the time of the 1996 Judgment and upon the discovery of which its request for revision of that Judgment is based are that the FRY was not a party to the Statute, and that it did not remain bound by the Genocide Convention continuing the personality of the former Yugoslavia. It argues that these facts were revealed by its admission to the United Nations on 1 November 2000 and by the Legal Counsels letter of 8 December 2000.
67. The Court would begin by observing that, under the terms of Article 61, paragraph 1, of the Statute, an application for revision of a judgment may be made only when it is based upon the discovery of some fact which, when the judgment was given, was unknown. These are the characteristics which the new fact referred to in paragraph 2 of that Article must possess. Thus both paragraphs refer to a fact existing at the time when the judgment was given and discovered subsequently. A fact which occurs several years after a judgment has been given is not a new fact within the meaning of Article 61; this remains the case irrespective of the legal consequences that such a fact may have.
68. In the present case, the admission of the FRY to the United Nations occurred on 1 November 2000, well after the 1996 Judgment. The Court concludes accordingly, that that admission cannot be regarded as a new fact within the meaning of Article 61 capable of founding a request for revision of that Judgment.
69. In the final version of its argument, the FRY claims that its admission to the United Nations and the Legal Counsels letter of 8 December 2000 simply revealed two facts which had existed in 1996 but had been unknown at the time: that it was not then a party to the Statute of the Court and that it was not bound by the Genocide Convention.
In advancing this argument, the FRY does not rely on facts that existed in 1996. In reality, it bases its Application for revision on the legal consequences which it seeks to draw from facts subsequent to the Judgment which it is asking to have revised. Those consequences, even supposing them to be established, cannot be regarded as facts within the meaning of Article 61. The FRYs argument cannot accordingly be upheld.
70. Furthermore the Court notes that the admission of the FRY to membership of the United Nations took place more than four years after the Judgment which it is seeking to have revised. At the time when that Judgment was given, the situation obtaining was that created by General Assembly resolution 47/1. In this regard the Court observes that the difficulties which arose regarding the FRYs status between the adoption of that resolution and its admission to the United Nations on 1 November 2000 resulted from the fact that, although the FRYs claim to continue the international legal personality of the Former Yugoslavia was not generally accepted (see paragraph 28 above), the precise consequences of this situation were determined on a case-by-case basis (for example, non-participation in the work of the General Assembly and ECOSOC and in the meetings of States parties to the International Covenant on Civil and Political Rights, etc.).
Resolution 47/1 did not inter alia affect the FRYs 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. Nor did it affect the position of the FRY in relation to the Genocide Convention. To terminate the situation created by resolution 47/1, the FRY had to submit a request for admission to the United Nations as had been done by the other Republics composing the SFRY. All these elements were known to the Court and to the FRY at the time when the Judgment was given. Nevertheless, what remained unknown in July 1996 was if and when the FRY would apply for membership in the United Nations and if and when that application would be accepted, thus terminating the situation created by General Assembly resolution 47/1.
71. The Court wishes to emphasize that General Assembly resolution 55/12 of 1 November 2000 cannot have changed retroactively the sui generis position which the FRY 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 and the Genocide Convention. Furthermore, the letter of the Legal Counsel of the United Nations dated 8 December 2000, cannot have affected the FRYs position in relation to treaties.
The Court also observes that, in any event, the said letter did not contain an invitation to the FRY to accede to the relevant conventions, but rather to undertake treaty actions, as appropriate, ... as a successor State.
72. It follows from the foregoing that it has not been established that the request of the FRY is based upon the discovery of some fact which was when the judgment was given, unknown to the Court and also to the party claiming revision. The Court therefore concludes that one of the conditions for the admissibility of an application for revision prescribed by paragraph 1 of Article 61 of the Statute has not been satisfied.
73. Article 61 of the Statute lays down further requirements which an application for revision of a judgment must satisfy in order to be admissible. However, the Court recalls that once it is established that the request for revision fails to meet one of the conditions for admissibility, the Court is not required to go further and investigate whether the other conditions are fulfilled (Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) Tunisia v. Libyan Arab Jamahiriya, Judgment, I.C.J. Reports, 1985, p. 207, para. 29). In the present case, the Court has concluded that no facts within the meaning of Article 61 of the Statute have been discovered since 1996. The Court therefore does not need to address the issue of whether the other requirements of Article 61 of the Statute for the admissibility of the FRYs Application have been satisfied.
74. The FRYs Application for revision must accordingly be rejected.
[pp. S.O. Koroma] 8. According to the jurisprudence, and as stated above, the discovery of new facts is a strict condition on the availability of revision. This condition is also fundamental to the decision on the Application, whether the admission of the FRY to membership of the United Nations which took place on 1 November 2000 is a newly discovered fact within the meaning of Article 61 of the Statute, which fact must have existed, but been unknown, at the time of the Judgment.
9. It is against this background that I have difficulty with some conclusions reached in the Judgment. One such difficulty is that the Court, without defining what in its opinion will be considered a new fact within the meaning of Article 61, stated that if the fact occurred several years after a judgment, this is not a new fact within the meaning of Article 61, irrespective of its legal consequences. Although this as a position of law is correct as far as it goes, but the issue the Court has to determine involves the question as to whether or not Yugoslavia was a Member of the United Nations before 1 November 2000. The Court itself had earlier acknowledged in its Judgment in 1996, that the FRYs status regarding United Nations membership was not free from legal difficulties. Accordingly, to dismiss the FRYs admission to membership of the United Nations in November 2000 and its legal consequences as simply a fact occurring several years after the Judgment is a distortion and too superficial. That General Assembly resolution 55/12 of 1 November 2000 led to the FRYs membership of the United Nations, is not only a fact or an event but this fact or event had certain consequences. It is to be recalled that the Court relied for the basis of its Judgment in 1996 on the FRYs declaration of 22 April 1992 that it remained bound by those treaties to which the former Socialist Federal Republic of Yugoslavia had been a party, and the Court assumed for this purpose that the FRY was a Member of the United Nations. Unless such assumption was made, the FRYs declaration alone should not and could not legally have been sufficient to serve as a basis for recognition of the FRY as a party to the Genocide Convention ¾ the sole basis on which the Court founded its jurisdiction. Accordingly, the FRYs admission to membership of the United Nations on 1 November 2000 suggests that it was not a Member of the United Nations in 1996 and thus was not a party to the Genocide Convention; therefore, the basis of the Courts jurisdiction no longer exists. Unfortunately, the Court chose not to address these critical issues, which were raised in the Application and in the hearings, but rather stated that the consequences which the FRY sought to draw from the facts which occurred in 2000 even if established, cannot be regarded as facts within the meaning of Article 61 (paragraph 69).
[pp. S.O. Koroma] 11. In my view, when an application for revision is submitted under Article 61 and where fresh facts have emerged and are of such importance as to warrant revising the earlier decision or conclusion, the Court should be willing to carry out such a procedure. Such an application is not to be regarded as impugning the Courts earlier legal decision as such, as that decision was based on the facts as then known. I am of the view that the admission of the FRY to membership of the United Nations in November 2000 does have legal implications for the Judgment reached by the Court on this matter in July 1996.
[pp. D.O. Vereshchetin] 1. ... The Parties are in complete disagreement as to whether or not the Court could have arrived at the same finding on the basis of the same ratio decedendi had it known, as an established fact, that Yugoslavia was not a Member of the United Nations at the time the Judgment on jurisdiction was given. Evidently, the answer to this question is bound to clarify the role of the discovery of a new fact alleged by Yugoslavia. Therefore, I am of the view that this question, directly related to the first condition for the admissibility of revision set out in Article 61 of the Statute, should have been the starting point of the Courts reasoning in the present Judgment.
2. The Genocide Convention, on which the Court has chosen to solely base its jurisdiction, both ratione personae and ratione materiae, specifically provides that it is open only to Members of the United Nations and to non-member States that have received an invitation from the General Assembly of the United Nations (Art. XI of the Convention). Evidently, this essential precondition for participation in the Convention had to be met by both Parties to the case to provide the Court with jurisdiction on the basis of the Convention. However, in view of the circumstances of the case and of the arguments advanced by the Parties, the Court, at the previous stages of its proceedings, while dealing specifically with the issue of Bosnia and Herzegovinas membership in the United Nations, did not undertake a similar examination of and slid over the subject of Yugoslavias standing in the United Nations.
[pp. D.O. Vereshchetin] 4. The question of Yugoslavias membership in the United Nations, which the Court decided not to determine definitively in its Orders on provisional measures, had to be decided definitively in the Judgment of 1996 on preliminary objections when the question of the Courts jurisdiction was to be determined, in principle, conclusively. Nonetheless, the Court again opted not to clarify expressly the knotty legal question of Yugoslavias membership in the United Nations and instead satisfied itself with citing the declaration of a general nature made by Yugoslavia on 27 April 1992 to the effect 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. (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 610, para. 17.)
The Court, after taking note that it has not been contested that Yugoslavia was party to the Genocide Convention, decided: [t]hus, Yugoslavia was bound by the provisions of the Convention on the date of the filing of the Application in the present case, namely, on 20 March 1993 (ibid., p. 610, para. 17).
5. Although the Court did not proffer any legal reasoning, it is evident that the above conclusion, read against the background of the former hesitations of the Court as to Yugoslavias status in the United Nations, carries the necessary implication that the Court at that time assumed as a fact continued membership of Yugoslavia in the United Nations. Otherwise, it is inconceivable how the Court, even in the absence of challenge, could recognize the continuing participation of Yugoslavia in the Convention while the essential precondition of such participation had ceased to exist.
6. It may be argued that since the Court explicitly did not take any position on Yugoslavias membership in the United Nations, it could have proceeded on the theory that once a Member of the United Nations (in our case, the former Yugoslavia) has become a party to the Genocide Convention, the essential precondition of United Nations membership is met once and for all, irrespective of the future standing of the State in the United Nations. Whatever may be the merits of this theory, evidently it applies only to the situation where the State remains identical and retains the legal personality of its predecessor. The applicability of this theory to the situation of Yugoslavia is belied by the non-recognition of its claim to continue the personality of the former Yugoslavia and, furthermore, by the treatment by the Court in the same case of the situation of Bosnia and Herzegovinas participation in the Convention.
7. Indeed, it will be recalled that in 1996, dealing with the question of Bosnia and Herzegovinas participation in the Genocide Convention, which at that time was contested by Yugoslavia, the Court considered that the fact of the admission of Bosnia and Herzegovina to the United Nations played a decisive role in its becoming a party to the Convention. While declining Yugoslavias contention relating to the alleged existence of some other conditions for the participation in the Convention, the Court said in the 1996 Judgment:
Article XI of the Genocide Convention opens it to any Member of the United Nations; from the time of its admission to the Organization, Bosnia and Herzegovina could thus become a party to the Convention. (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 611, para. 19; emphasis added.)
For this reason, the Court found it unnecessary and declined to consider other arguments in favour of the participation in the Convention of Bosnia and Herzegovina advanced by the latter, including the argument relating to the succession to treaties generally and the argument of automatic succession, allegedly applicable in the case of certain types of international treaties or conventions (ibid., p. 612, para. 23).
8. If we now apply the same standard to Yugoslavia, we can only conclude that the assumption that Yugoslavia was a Member of the United Nations was a sine qua non condition for the Courts determination on the jurisdiction ratione personae, and therefore it was a decisive factor within the meaning of Article 61 of the Statute.
[pp. D.O. Vereshchetin] 9. Having demonstrated that the Judgment of the Court on its jurisdiction ratione personae over Yugoslavia was premised on the assumed membership of Yugoslavia in the United Nations, it is yet to be seen whether United Nations membership status may fall within the legal notion of fact and, if so, whether an assumption of such a fact later proved to be incorrect can serve as a ground for revision of a judgment, provided all other requirements of Article 61 of the Statute are met.
10. The question whether or not a State is a Member of the United Nations would appear to be a question of fact according to a whole series of definitions of the term fact given in authoritative law dictionaries and texts. ... From the quoted definitions, it follows it would be a natural interpretation of the meaning of the term fact that it includes a States status in an organization. Likewise, facts would be statehood, being a party to a treaty, etc. It may be pertinent to note that the Russian text of Article 61 of the Statute uses the word circumstances in place of the word fact used in the English text.
11. As was shown above, the Court did not concern itself specifically with the establishment of the fact of Yugoslavias membership in the United Nations and explicitly did not take any position on the claim of Yugoslavia in this respect. However, implicitly it could not avoid the assumption of Yugoslavia being a Member of the United Nations. This assumption, which was of crucial importance for the establishment of the Courts jurisdiction in the case, later proved to be incorrect. Therefore, the question arises whether an incorrect assumption of the factual situation, in international proceedings, can lead to the revision of a judgment.
12. A pertinent example of international jurisprudence where an incorrect or erroneous assumption of the personal status of the claimant led to the revision of the decision, is Schrecks case (Moore, 2 International Arbitrations, p. 1357) often referred to by writers. The umpire, Sir Edward Thornton, reversed his earlier decision when he discovered he had based it on an incorrect assumption about the nationality of the claimant under Mexican law. The claimant Schreck needed to be an American citizen in order to obtain relief. The umpire had wrongly assumed that, because the claimant was born in Mexico he must have had Mexican nationality, and therefore refused relief. He later discovered the fact that under Mexican law this was not the case and indeed the claimant did not have Mexican nationality at all. That fact existed at the time of the decision but was not known to the umpire until afterwards. Consequently, upon its discovery, he revised his decision and found for the claimant.
Certainly, in national jurisprudence one may find many other examples of the revision of decisions based on the discovery of wrong assumptions, including the assumptions of the legal status of natural persons and legal entities (citizenship, marital status, domicile, etc.).
[pp. D.O. Vereshchetin] 24. In the chain of events that led to the discovery of the new fact that at the relevant time Yugoslavia was not a Member of the United Nations, the initial impulse was certainly given by Yugoslavias application for United Nations membership, and evidently the timing of this initial impulse depended on Yugoslavia. From this it does not follow, however, that in the political situation prevailing in the early 1990s, one could be certain that Yugoslavia would have been admitted to the United Nations had it applied at that time, or that one could have known even after Yugoslavias application of 27 October 2000, that the competent United Nations organs would admit it as a new Member and list its membership as of the date of admission. In this sense, contrary to what is implied in the Judgment (see the second sub-para. of para. 70 of the Judgment) the discovery of the new fact did not depend on the position of Yugoslavia and was not the result of its negligence.
[pp. D.O. Vereshchetin] 28. The foregoing brings me to the conclusion that the Court, in 1996, based its jurisdiction on the assumption that Yugoslavia was at that time a Member of the United Nations. Subsequent events, described above, have clearly demonstrated that the assumption made by the Court was wrong. The fact is, Yugoslavia was not a Member of the United Nations in 1996. This fact constitutes the new fact for the purposes of Article 61 of the Statute.
The request for revision of the Courts Judgment on its jurisdiction satisfies all the conditions contemplated by Article 61 of the Statute: it is based on the discovery of a fact of such a nature as to be a decisive factor; the fact had been unknown to the Court and to the Party claiming revision when the Judgment was given; ignorance of the fact was not due to negligence; the Application for revision was made within the time prescribed. For these reasons, in my opinion, the Application of Yugoslavia is admissible and the Judgment of the Court of 11 July 1966 should have been laid open for revision.
Such a procedural decision would not have prejudged the ultimate result of the revision. A fortiori, it could not have been seen as a condoning of the behaviour of either side in the bloody conflict on the territory of the former Yugoslavia.
[pp. Decl. Rezek]5. The Court could have considered as a new fact the clarification provided by the United Nations in November 2000 of a question which had lain in a grey area since 1992, of a situation which could thus have appeared uncertain in 1996: the former Socialist Republic of Yugoslavia had ceased to exist; Mr. Milosevic's administration did not continue the State which had broken up. The Court's assertion in the Judgment of 11 July 1996 of jurisdiction over the respondent, resulting from a misreading of the factual situation, should now be subject to revision.
6. Otherwise, I would have proposed denying in limine the Application for revision but for a reason diametrically opposed to those relied upon by the majority: the Federal Republic of Yugoslavia, one of the newest Members of the United Nations, is not the entity considered by the Court to be the Respondent in the Judgment of 11 July 1996. Accordingly, the new Yugoslavia does not have standing to seek revision. It is not a party to the dispute submitted to the Court by Bosnia and Herzegovina. It will be for the Court to decide at the appropriate time whether that dispute is extant in the absence of the Respondent.
[p. Decl. Dimitrijevic] 3. I cannot subscribe to the view of the majority, based as it is mostly on dictionaries for general use, that a fact is only something that can be perceived by human senses as a part of physical reality. A legal fact, a fact in law, is something that legally exists, that belongs to legal reality as a product of legal rules. Being or not being a member of an international organization or a party to an international treaty is a legal fact ¾ not a legal norm ¾ although it can be the result of an authoritative interpretation of the latter.
4. Different legal determinations typically rely on different kinds of facts. Often there are conflicting perceptions of the latter. This does not mean, however, that, for example, being or not being a State, having or not having the status of a citizen, having or not having domicile, being or not being a father, being or not being validly married, are mere perceptions. These are facts which may or may not be readily perceptible and may or may not be correctly perceived. But they are facts nonetheless. Whether the Federal Republic of Yugoslavia (FRY) was or was not a party to the Statute of the International Court of Justice at the time of the 1996 Judgment is a factual question. Whether the FRY did or did not remain bound by the Genocide Convention continuing the personality of the former Yugoslavia is also a matter of facts. In the present case, these are the critical facts on which the legal determination of jurisdiction is to be based.
[p. Decl. Dimitrijevic] 10. Article 61 of the Statute does not distinguish between various kinds of judgments. For this simple reason, the notion of fact relied upon in Article 61 should be broad enough to accommodate various types of facts which serve as a basis for all legal conclusions. Obviously, specific facts on which access to the Court and jurisdiction may be based also belong to the broad category of facts within the meaning of Article 61.
11. The same Article allows for some temporal duality between the existence of a fact and its discovery or determination. In paragraph 1, reference is made to a fact which existed at the time when the Judgment was given, but which was unknown to the Court and to the party claiming revision, whilst paragraph 2 expects the Court expressly to record the existence of the new fact (emphasis added) in order to declare an application for revision admissible. This implies a new understanding, caused by a realization that occurred after the judgment was delivered and showing that the old fact, which had been assumed to exist at the time of the judgment, had not actually existed ab initio, or that a fact which had not been seen as existing or had been misperceived as such, had actually existed at the relevant time. Contrary to what the majority says in paragraph 69 of the present Judgment, the FRY does not rely on the legal consequences which it seeks to draw from facts subsequent to the  Judgment, but seeks to prove that the fact on which the Court relied in its 1996 Judgment did not exist. The non-existence of a fact, as well as its existence, is also a factual question.
[p. Decl. Dimitrijevic] 47. The process of recognition is a process in time. The debate on the adoption of Security Council resolution 777 (1992) and the subsequent actions by the Secretariat of the United Nations show that continuity between the SFRY and the FRY was an assumption or perception shared by some other international actors but far from being widely accepted. If the FRYs claim to continuity was not generally accepted in 1992, it could have been accepted later, say in 1996, when the Judgment was delivered, but the Court - while relying on the consequences of continuity - failed to prove universal acceptance at the time of the Judgment. It could not, for that matter, have proven it in 1996 or for the whole period between 11 July 1996 and 1 November 2000, when it finally became clear that general acceptance had not materialized.
48. Accordingly, the crucial point is to determine when the FRYs claim was generally rejected. When did it become clear that the FRY was certainly not a continuator of the SFRY, with all the consequences for the new State, favourable and unfavourable, which that entailed? This question was finally decided by a forum very closely approximating the totality of all States, the whole of the international community, i.e., the Organization of the United Nations, when on 1 November 2000 the latter admitted the FRY as a new Member of the Organization, thus excluding the possibility of the FRY having formerly been a Member as a continuator of the SFRY, or on some other basis.
49. The admission of the FRY as a new Member of the United Nations revealed (led to the discovery of) the fact that the FRY was not a Member of the United Nations (and not a party to the Statute of the International Court of Justice) at the time of the Judgment of 11 July 1996. The letter of the United Nations Legal Counsel of 8 December 2000 inviting the FRY to undertake treaty actions (Application of Yugoslavia, Ann. 27), if the intention of the latter was to assume rights and obligations as a successor State, demonstrated that the FRY had not previously been a party to international treaties on the ground that they had been ratified by the SFRY and that, specifically, the FRY was not a party to the Genocide Convention at the time of the Judgment of 11 July 1996.
50. The admission of the FRY to the United Nations as a new Member and the subsequent events showed that a possibility known to the Court and other parties, that is, that the FRY was not the sole continuator but one of the successors of the SFRY, had become established as a fact existing since the very creation of the FRY; the fact that the FRY was a continuator of the SFRY had not existed at any time. In its Judgment the Court, without explicitly saying so, espoused one of the views existing in 1996 (and summarized above). The majority in the present case treats this view as the only known fact at the time, disregarding other, predominant views. The legal situation was admittedly complex, as indicated by the majority, but it was known in all its complexity. The truth is that the fact was not seen by the Court in its entirety and that later events demonstrated that it differed from that which provided the basis for jurisdiction in the 1996 Judgment.
51. Even if none of the interpretations advanced above are accepted, the follow-up to Security Council resolution 777 (1992) and General Assembly resolution 47/1, which was known to the Court at the time of the rendering of the Judgment of 11 July 1996, was, to say the least, inconclusive. For the purposes of the Order on provisional measures, the developments until April 1993 could have possibly warranted the provisional assumption that the FRY was a continuator of the SFRY, but the situation in 1996 had not developed to the degree that it allowed a final determination that the Court had jurisdiction on such basis.
[p. Decl. Dimitrijevic] 53. According to Article 61, paragraph 2, of the Statute of the International Court of Justice, the purpose of the judgment opening the proceedings for revision is limited to the initial determination of the existence of a new fact and of its (decisive) nature. The judgment to be delivered in this case should enable the Court to go more deeply into the matter of its jurisdiction on the basis of facts that existed in July 1996 but acquired their real meaning only on 1 November 2000. Opening the proceedings for revision would not preclude any possible finding by the Court that the facts existing at the time of the 1996 Judgment were such that the Court could nevertheless entertain jurisdiction. Declaring the Application for revision inadmissible only by reference to the literal meaning of the word fact misses a serious opportunity to decide on important matters relating to the jurisdiction of the International Court of Justice.
[p. S.O. Mahiou]13. Moreover, the scope and length of the debate over Yugoslavia's
membership in the United Nations show that everyone was aware of this fact, even
though views differed, as noted above, as to the exact way in which the problem
should be resolved. These differences of opinion are the very evidence which
makes it impossible to speak of a fact that was "new" and unknown to
the party seeking revision and to the Court, which referred to it in its Order
of 8 April 1993 and rendered its 1996 Judgment in full awareness of it, but
without addressing it, because it had not been requested to do so and it was
unnecessary for it to do so.
14. In conclusion, without there being any need to raise the issue of forum prorogatum already debated in connection with the additional requests for the indication of provisional measures in 1993 (see in particular the separate opinion of Judge ad hoc Lauterpacht, I.C.J. Reports 1993, pp. 416-421) and with the preliminary objections in 1996, it is apparent that there is no new fact but simply a new presentation or characterization of the same reality by Yugoslavia, whose conduct has changed for the better at which all should rejoice without however effacing its earlier misconduct. Even though the question of its status was pending before the United Nations throughout the duration of the proceedings before the Court, not only did Yugoslavia fail to seek ways and means to clarify the situation but it has continued to maintain the uncertainty, prolonging it up to the present day, as stated in paragraph 12 above. Today's authorities in Yugoslavia were not the source of the misconduct, which is attributable to their predecessors, but that changes nothing in terms of responsibility, for the fault is one attributable to the State concerned, notwithstanding that there has been a change of regime and the beginning of a change in legal policy.