In its decision in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, 18 November 2008 the International Court of Justice (“ICJ”) once again considered Serbia's capacity to access the Court between 1992 (when it declared that it was the continuation of the Socialist Federal Republic of Yugoslavia (“SFRY”), a claim not generally accepted) and 2000 (when it applied for membership of, and was admitted to, the United Nations (“UN”)).

Under Article 35 paragraph 1 of the Statute of the ICJ, the Court is open to all Members of the UN. In 2004 the Court decided that it did not have jurisdiction in eight cases brought by Serbia against NATO Member States (Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgments, I.C.J. Reports 2004, p. 279). The Court held that, as it was admitted to the UN on 1 November 2000, Serbia was not a member of the UN nor, therefore, party to the ICJ Statute when it filed its application in 1999.

In 2007 the Court delivered judgment in a claim made by Bosnia against Serbia (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007). Serbia argued that it was not a member of the UN or party to the ICJ Statute when Bosnia instituted the proceedings in 1993. However the Court held that it did have jurisdiction, relying on the res judicata effect of its earlier decision on Serbia's preliminary objections (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 623). The Court held that its finding in 1996 that it had jurisdiction to adjudicate upon the dispute necessarily incorporated “a determination that all the conditions relating to the capacity of the parties to appear before it had been met”.

In contrast, there is no previous decision in this claim by Croatia on which the Court could rely. Nevertheless, Serbia's argument that it did not have capacity when Croatia's application was filed in 1999 was again rejected.

The general rule is that whether the conditions set out in Article 35 of the ICJ Statute have been fulfilled should be assessed at the date when the application is submitted to the Court, here 2 July 1999. However, the Court relied on the principle that where a procedural defect is cured by subsequent action, considerations of judicial economy may justify assessment at a later date (“the Mavrommatis principle” after its application in Mavrommatis Palestine Concessions (Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 34). Here, Serbia was a member of the UN and therefore a party to the ICJ Statute at 1 November 2000. If the Court found that it did not have jurisdiction on the ground that Serbia was not a member of the UN on 2 July 1999, Croatia could re-submit its application. The sound administration of justice would not be served by dismissing the application when it could simply be re-made.

Serbia's argument that the Mavrommatis principle does not apply to the issue of capacity found some support (see Joint Declaration of Judges Ranjeva, Shi, Koroma and Parra-Aranguren, and the Dissenting Opinions of Judges Owada, Skotnikov and ad hoc Kreća). These judgments accept that procedural defects which can be cured by subsequent action of the parties (such as, for example, ratification of a treaty) may be disregarded on the grounds of judicial economy – a flexible approach consistent with the Court's consent-based jurisdiction. The issue of capacity, however, they viewed as a fundamental preliminary issue – a right which is not a matter of consent. While agreeing that jurisdiction ratione personae is distinct from questions of jurisdiction ratione materiae or ratione temporis and acknowledging that the Mavrommatis principle has not to date been applied to it, the Court nevertheless concluded that it is not apparent that the arguments underpinning the sound administration of justice do not also apply to questions of capacity. However fundamental the issue of capacity, if an applicant could re-issue the application in the same terms, then it is not clear that any purpose is served in forcing it to do so.

Croatia alleged that between 1991 and 1995 Serbia violated the Convention on the Prevention and Punishment of the Crime of Genocide (“the Convention”). Serbia also submitted that the Court did not have jurisdiction on the basis that Serbia was not bound by the Convention until its notification of accession became effective on 10 June 2001 with a reservation regarding Article IX (which provides that disputes relating to the interpretation, application or fulfilment of the Convention shall be submitted to the ICJ at the request of any of the parties to the dispute).

If jurisdiction exists at the date of the institution of proceedings, any subsequent lapse or withdrawal of the jurisdictional instrument is without effect. The Court concluded that if Serbia was a party to the Convention, including Article IX, on 2 July 1999 (when proceedings were instituted), and if it continued to be bound by Article IX until at least 1 November 2000 (when Serbia became a party to the ICJ Statute), then the Court continues to have jurisdiction.

On 27 April 1992 Serbia made a formal declaration stating that, as the continuation of the SFRY, it would “strictly abide by all the commitments that the [SFRY] assumed internationally” and the Note transmitted with the declaration to the Secretary-General of the UN referred to Serbia's intention to “continue to fulfil all the rights conferred to, and obligations assumed by, the [SFRY] in international relations, including its … participation in international treaties ratified or acceded to by Yugoslavia.” The SFRY became a party to the Convention without reservation in 1950. The Court held that these documents, together with Serbia's behaviour between 1992 and 2000 (in particular, its reliance on the Convention in proceedings before the Court), were sufficient confirmation of its acceptance of its obligations under the Convention, including Article IX. The Court concluded that Serbia did not take any step inconsistent with this position until 2001.

A number of members of the Court took issue with the majority's failure to consider the effect of Serbia's 2001 accession to the Convention more closely, arguing that if the Mavrommatis principle is relied upon to establish Serbia's capacity, it is necessary to show that Croatia could, if it wished, file a new application identical with the previous one. If Serbia's 2001 reservation to Article IX is valid, it would bar any hypothetical future application by Croatia and deny the concern for procedural economy which underlies the Mavrommatis principle (see the Separate Opinions of Vice-President Al-Khasawneh and Judge Abraham and the Declaration of Judge Bennouna). They are however of the view that Serbia could not accede to a treaty to which it was already a party and that no account should therefore be taken of the accession or the reservation.

With no further claims pending against Serbia, the complicated question of its capacity to appear before the ICJ between 1992 and 2000 is unlikely to be raised again. However, the Court's finding that Serbia's 1992 declaration and Note constituted sufficient notification of its succession to the Convention enabled it to avoid considering the general law relating to succession of States to, in particular, multilateral and human rights treaties – a difficult area which would benefit from further elucidation.