MEMORANDUM OF THE FEDERAL GOVERNMENT OF THE FEDERAL REPUBLIC OF
YUGOSLAVIA CONCERNING THE MEMBERSHIP OF THE FEDERAL REPUBLIC OF
YUGOSLAVIA
IN THE UNITED NATIONS
I The Federal Republic of Yugoslavia is a Member State of the United
Nations.
1. Yugoslavia is a founding Member of the United Nations in accordance
with
Article 3 of the Charter of the United Nations. The Secretary-General of
the United Nations, as depositary of international treaties, lists it as
an
original Member in his annual reports (Multilateral Treaties Deposited
with
the Secretary-General).
2. Membership of Yugoslavia in the United Nations has not been
interrupted, so that the FR of Yugoslavia is a Member State of the
United
Nations.
3. There is no basis to limit the international legal continuity of the
FR
of Yugoslavia and its membership in the United Nations. All attempts to
do
so lack legal basis, are ill-intentioned and politically harmful and
represent the violation of the Charter of the United Nations. Any
initiatives to directly or indirectly challenge the membership of the
FRY
in the United Nations or challenge its existing membership rights are
aimed at: a) setting a precedent for extremely negative consequences for
the United Nations, principles of the United Nations and international
relations, as well as intimidating Member States; b) weakening the role
and credibility of the United Nations, particularly in the region of
southeastern Europe; c) preventing the stabilization of the situation in
the region of southeastern Europe, the implementation of the
Dayton/Paris agreement and UN SC resolution 1244 (1999); d) slowing
down
integration processes and multilateral cooperation in the Balkans, which
is
possible only with equal participation of the FRY
4. Representatives of the FR of Yugoslavia participated in the work of
the
United Nations General Assembly until 22 September 1992 and in the work
of
the UN Economic and Social Council until 28 April 1993. They continued
to
participate in the work of the UN Security Council and to appear before
the
International Court of Justice even after these dates.
5. United Nations General Assembly considers the FR of Yugoslavia its
Member State This position of the General Assembly was demonstrated
during
the adoption of resolution 49/19B on 23 December 1994 and 52/215 of 22
December 1997. in which it established Scale of assessments for the
apportionment of the expenses of the United Nations. In both
resolutions,
adopted by consensus, Yugoslavia was listed as a Member State and not as
a
non- Member like the Vatikan, Nauru, Switzerland and Tonga. Both
resolutions were adopted after resolution 47/1 of 22 September 1992,
when
decision was made not to allow Yugoslavia to participate in the work of
the
General Assembly. They were also adopted after General Assembly
resolution
48/88 (1993) calling upon the Secretariat to end the de facto working
status of the FR of Yugoslavia which did not produce any consequences
since
it was not possible because the FR of Yugoslavia does not have "the de
facto working status" and is a UN Member State.
6. UN General Assembly resolutions 49/19B and 52/215 point to the FR of
Yugoslavia. This is clear since the same resolution determines the scale
of
assessment for the former Yugoslav republics which became independent
States and UN Members - for Bosnia and Herzegovina, former Yugoslav
Republic of Macedonia, Republic of Croatia and the Republic of Slovenia.
The claim of the representatives of some States to the effect that the
UN
General Assembly in referring to Yugoslavia actually meant the SFRY, is
absurd. All the more so, since the representatives of those States claim
that the FR of Yugoslavia ceased to exist. If that were true, the
membership of that State in the United Nations would also have to end.
It
is clear that the General Assembly in 1994 and 1997 established the
scale
of assessment for all five states from the territory of the SFRY. So
when
it mentions Yugoslavia it can only pertain to the FR of Yugoslavia. It
is
the usual practice of the UN to use the country's shorter name. In these
resolutions, the Republic of Croatia has been referred to only as
Croatia,
the Republic of Slovenia as Slovenia and that is the case with almost
all
other States.
7. The Security Council also considers the FR of Yugoslavia to be a UN
Member State. Resolution 777 (1992) of 19 September 1992 is a result of
a
political compromise. During its adoption, Ambassador Vorontsov,
Permanent
Representative of the Russian Federation to the UN, said: "... we were
unable to agree with the proposal, put forward by some States, that the
Federal Republic of Yugoslavia should be excluded, formally or de facto,
from membership in the United Nations... The compromise that has been
reached - that the Federal Republic of Yugoslavia should not participate
in
the work of the General Assembly - may seem unsatisfactory to some.
Frankly, we would have preferred not to have recourse to such a measure
to
influence the Federal Republic of Yugoslavia, because even without this
measure it is already experiencing sufficient pressure from the
international community in the form of economic sanctions... At the same
time, the decision to suspend the participation of the Federal Republic
of
Yugoslavia in the work of the General Assembly will in no way affect the
possibility of participation by the Federal Republic of Yugoslavia in
the
work of the other organs of the United Nations, in particular the
Security
Council, nor will it affect the issuance of documents to it, the
functioning of the Permanent Mission of the Federal Republic of
Yugoslavia
to the United Nations or the keeping of the nameplate with the name
Yugoslavia in the General Assembly Hall and the rooms in which the
Assembly
s organs meet. In short, since the decision of the Security Council does
not provide for the expulsion of the Federal Republic of Yugoslavia from
the United Nations, the measures taken with regard to it must remain
strictly within the limits of the decision we are taking today."
(Security
Council, Provisional Record of the 3116th, Meeting S/PV.3116, 19
September
1992, at 2-5).
Ambassador Li Daoyu, Permanent Representative of the People's Republic
of
China to the UN said on that occasion: "the resolution just adopted does
not mean the exclusion of Yugoslavia from the United Nations. The
nameplate
"Yugoslavia" will be kept in the General Assembly Hall. The Federal
Republic of Yugoslavia will continue its participation in the work of
United Nations bodies other than the General Assembly. The Federal
Republic
of Yugoslavia will continue to issue its documentation in the United
Nations." (Security Council, Provisional Record of the 3116th Meeting,
S/PV.3116, 19 September 1992, at 7).
It is clear that the Russian Federation and the PR of China during the
adoption of Security Council resolution 777 (1992) of 19 September 1992
considered that this resolution only made a recommendation to
temporarily
limit some of the membership rights of the FR of Yugoslavia as a UN
Member
State.
8. By adopting a new resolution 821 (1993) of 28 April 1993,
recommending
to the General Assembly to make a decision to the effect that the FR of
Yugoslavia does not take part in the work of the Economic and Social
Council, the Security Council confirmed that it considered the FR of
Yugoslavia a UN Member State. If then, on 28 April 1993, Security
Council
considered that the FR of Yugoslavia was not a UN Member State, it would
not have made a recommendation to the General Assembly to decide that
Yugoslavia does not take part in its work. Never in the UN practice has
Security Council of the United Nations made a recommendation to the
effect
that a non Member be prevented from taking part in the work of the
General
Assembly or Economic and Social Council. That would be totally absurd
and
senseless.
The way in which the Security Council calls the representatives
to
take part in its work does not prejudge its position regarding the
membership of the FR of Yugoslavia in the UN. This has been confirmed by
the Security Council Working Group in its report in regard to the
documents
of the Security Council and other procedural issues of 31 May 1995. This
report confirms that the representative of the FR of Yugoslavia took
part
in the work of the Security Council seating at the table with the
nameplate
of Yugoslavia. The representative of the FR of Yugoslavia, inter alia,
also
took part in the subsequent meetings of the UN Security Council, after
the
adoption of General Assembly resolution 47/1 of 22 September 1992: 16
November 1992; 19 February 1993; 17 April 1993; 20 April 1993; 29 June
1993; 9 August 1993; 14 February 1994; 21 April 1994; 27 April 1994; 23
September 1994; 30 September 1994; 8 November 1994; 12 January 1995; 21
April 1995; 31 March 1998 and 10 June 1999. etc.
9. The International Court of Justice has constantly listed the FR of
Yugoslavia in its annual publications after 1992, as a UN Member State.
10. UN Secretariat considers the FR of Yugoslavia to be a UN Member
State. The Under-Secretary General and the Legal Council of the United
Nations addressed a letter dated 29 September 1992 to the Permanent
Representatives of Bosnia and Herzegovina and Croatia to the United
Nations
in response to their letter of 25 September 1992, stating, inter alia,
that
"While the General Assembly has stated unequivocally that the Federal
Republic of Yugoslavia ... cannot automatically continue the membership
of
the former Socialist Federal Republic of Yugoslavia in the United
Nations
and that the Federal Republic of Yugoslavia... should apply for
membership
in the United Nations, the only practical consequence that the
resolution
(47/1) draws is that the Federal Republic of Yugoslavia.... shall not
participate in the work of the General Assembly. It is clear, therefore,
that representatives of the Federal Republic of Yugoslavia... can no
longer
participate in the work of the General Assembly, its subsidiary organs,
nor
conference and meetings convened by it.
On the other hand, the resolution neither terminates nor suspends
Yugoslavia?s membership in the Organization. Consequently, the seat and
nameplate remain as before, but in Assembly bodies representatives of
the
Federal Republic of Yugoslavia... cannot sit behind the sign
"Yugoslavia".
Yugoslav Missions at United Nations Headquarters and offices may
continue
to function and may receive and circulate documents. At Headquarters,
the
Secretariat will continue to fly the flag of the old Yugoslavia, as it
is
the last flag of Yugoslavia used by the Secretariat. The resolution does
not take away the right of Yugoslavia to participate in the work of
organs
other than Assembly bodies." (A/47/485).
The representatives of some states, advocating the view that the FR
of Yugoslavia has dissolved and ceased to exist, claim that this
opinion
indicates that this is the membership of the SFRY in the United Nations.
This claim proves best that the thesis of discontinuity of the FRY in
the
United Nations is invalid. If the SFRY has dissolved and ceased to
exist,
its membership in international organizations would automatically cease
as
well. They maintain that the membership is not ended because the UN
bodies
did not make a decision to end its membership. However, this is absurd,
because the membership ends ipso jure, as a legal consequence of the
dissolution of a State and no decision to that effect is necessary.
After
the German Democratic Republic ceased to exist, the Security Council and
the General Assembly did not make any decision on termination of its
membership in the United Nations nor have they made any decision on
ending
the membership of the Czech and Slovak Federal Republic in the United
Nations.
11. UN Secretary-General regularly invites the FR of Yugoslavia as a
Member
State to fulfil its financial obligations towards the Organization which
Yugoslavia does.
12. In all agreements concluded between the FR of Yugoslavia and the
United
Nations after 1992, it is stated that the FR of Yugoslavia is a UN
Member
State, for example, in the Agreement on the status of the Office of the
High Commissioner for Human Rights in Belgrade, concluded by the
exchange
eof Notes between the FR of Yugoslavia and the UN High Commissioner for
Human Rights on 6 November 1998.
II The Federal Republic of Yugoslavia continues the international
personality of the Socialist Federal Republic of Yugoslavia
13. The Federal Republic of Yugoslavia has continued the international
legal personality of the Socialist Federative Republic of Yugoslavia.
The
Declaration adopted on 27 April 1992 at a joint session of delegates in
the
Federal Assembly, the National Assembly of the Republic of Serbia and
the
Assembly of the Republic of Montenegro on the occasion of the
promulgation
of the Constitution of the FR of Yugoslavia, inter alia, states: "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 SFR of Yugoslavia
assumed internationally" (A/46/915, 7 May 1992).
14. The former Yugoslav Republics of Bosnia and Herzegovina, Republic of
Macedonia and the Republic of Croatia have confirmed the legal fact of
the
continuity of the Federal Republic of Yugoslavia.
Article 5 of the Agreement on Normalization of Relations
between
the Federal Republic of Yugoslavia and the Republic of Croatia, signed
at
Belgrade on 23 August 1996, reads as follows:
"Proceeding from the historical fact that Serbia and Montenegro
existed as independent States before the creation of Yugoslavia, and
bearing in mind the fact that Yugoslavia has continued the international
personality of these states, the Republic of Croatia notes the existence
of
the State continuity of the Federal Republic of Yugoslavia.
"Proceeding from the historical fact of the existence of the
various forms of statal organization of Croatia in the past, the Federal
Republic of Yugoslavia notes the existence of the continuity of the
Croatian statehood.
The Contracting Parties are agreed to solve the issue of the
succession of the Socialist Federal Republic of Yugoslavia on the basis
or
the rule of international law on succession of States and through
agreement." (The text of the Agreement on Normalization of Relations
between the Federal Republic of Yugoslavia and the Republic of Croatia,
signed at Belgrade on 23 August 1996, is attached as annex to the letter
of
the Charge d'Affaires a.i. of the Permanent Mission of Yugoslavia to the
United Nations addressed to the Secretary-General, dated 29 August 1996,
A/51/318; S/1996/706, 29 August 1996).
There is a substantial difference between the State continuity
of
the FR of Yugoslavia and the continuation of the Croatian statehood. The
State continuity of the FR of Yugoslavia is based on the historical fact
that Serbia and Montenegro existed as independent States before the
creation of Yugoslavia and on the fact that the FR of Yugoslavia has
continued the international legal personality of these States. Quite
differently, in the past Croatia enjoyed various forms of statal
organization. It had the status of a Republic - a federal unit in the
Socialist Federal Republic of Yugoslavia, some part of today's Croatia
had
a sort of statal autonomy in the Austro-Hungarian Empire. But, before
armed
secession from Yugoslavia, it had no status of an independent State,
status
of a subject of international law. Accordingly, today's Republic of
Croatia can only continue the various forms of statal organization of
the
past but not the international legal personality.
Essentially, the same formula was used in the Joint Declaration
of
Presidents Slobodan Milo{evi} and Alija Izetbegovi}, made in Paris on 3
October 1996. Paragraph IV of the Joint Declaration reads as follows:
"The Federal Republic of Yugoslavia will respect the integrity
of
Bosnia and Herzegovina in accordance with the Dayton Agreement which
affirmed the continuity of various forms of statal organization of
Bosnia
and Herzegovina that the peoples of Bosnia and Herzegovina had during
their
history.
Bosnia and Herzegovina accepts the State continuity of the
Federal
Republic of Yugoslavia.
Both sides agree to resolve issues of succession on the basis
of
the rules of international law on succession of States and by
agreement."
(The Joint Declaration is attached as annex to the letter of the Charge
d'Affaires a.i. of the Permanent Mission of Yugoslavia to the United
Nations addressed to the Secretary-General, dated 7 October 1996,
A/51/461;
S/1996/830, 7 October 1996).
The text of Article 4 of the Agreement on the regulation of
relations and promotion of cooperation between the Federal Republic of
Yugoslavia and the Republic of Macedonia, signed in Belgrade on 8 April
1996, differs more in terms of terminology than that of substance:
"In the light of the fact that Serbia and Montenegro had
existed
as independent States before the creation of Yugoslavia, and in view of
the
fact that Yugoslavia continued the international legal personality of
these
States, the Republic of Macedonia respects the state continuity of the
Federal Republic of Yugoslavia.
In the light of the fact that during the National Liberation
war
and at the session of the Anti-Fascist Assembly of the National
Liberation
of Macedonia, the Macedonian people decided to organize the Republic of
Macedonia as a State and to join the Yugoslav Federation, and in view of
the fact that in the 1991 referendum the Macedonian people decided to
organize the Republic of Macedonia as a sovereign and independent State
and
appreciating the fact that this has been carried out in a peaceful
manner,
the Federal Republic of Yugoslavia respects the state continuity of the
Republic of Macedonia.
The Parties agree to resolve their mutual claims on ground of
succession to the former Yugoslavia by agreement." (The Agreement is
published as an annex to the letter of the Permanent Representative of
the
Former Yugoslav Republic of Macedonia to the United Nations addressed to
the President of the Security Council, dated 17 April 1996, S/1996/291,
17
April 1996).
In both cases, i.e. Yugoslavia and Macedonia, the Agreement
used
the same term "the state continuity". But, it is quite obvious that the
same terms have not the same meaning. Before its peaceful secession,
Macedonia existed as the Republic of Macedonia - a federal unit of the
Socialist Federal Republic of Yugoslavia. It did not exist as an
independent state, a subject of international law. For the first time in
history, it became such a subject after peaceful secession.
15. The United States implicitly confirmed the legal fact regarding the
international legal continuity of the FR of Yugoslavia. By its Note No.
C-42 of 5 May 1998, transmitted to the Federal Ministry of Foreign
Affairs,
the Embassy of the United States of America in Belgrade claimed the
extradition of Rifat Fteja, a Yugoslav citizen charged with several
criminal offences committed in the United States. The extradition
request
is based on the Extradition Treaty of 1901. Accordingly, the position of
the US Government is that the Extradition Treaty, concluded between the
Kingdom of Serbia and the United States of America on 12/25 October
1901,
is in force between the Kingdom of Serbia and the United States in 1998.
It
confirmed the international legal continuity of both States. Namely, if
the
FR of Yugoslavia is a new State, it should conclude a separate agreement
with the United States on succession in respect of bilateral treaties.
In
the absence of such an agreement, the United States considers the 1901
Treaty to be in force and, consequently, implicitly confirms the
international legal continuity of the FR of Yugoslavia. The fact of the
international legal continuity of the FR of Yugoslavia was also
confirmed
by exchange of Notes between the FR of Yugoslavia and the United States
(Notes Nos. 10763 and 22, respectively) in 1996 concerning the
establishment of the US Information Service Centre in Pri{tina. The
exchange of Notes shows that both sides consider that the Memorandum of
Understanding, signed between the Federative People's Republic of
Yugoslavia and the United States in Belgrade on 14 June 1961, to be
still
in force.
16. The largest number of other States have explicitly or implicitly
confirmed the international legal continuity of the FR of Yugoslavia.
This
is an obvious proof of the existence of unbroken-off diplomatic
relations
between the FR of Yugoslavia and 160 States with which the SFRY had
maintained diplomatic relations. The majority of States consider that
bilateral agreements entered into with the SFRY are in force also in
their
relations with the FR of Yugoslavia. Some Members States of the European
Union, such as Austria, Greece and the United Kingdom, have also
formally
recognized this fact through exchange of Notes, whereas some other, like
Italy, have done so by making a unilateral declaration. The former
Yugoslav
Republics, upon becoming independent States, have established diplomatic
relations with other States. This was not the case with the FR of
Yugoslavia, since it is not a new State. These States have entered
separately into agreements with third States on succession in respect of
bilateral treaties which existed between these third States and the
SFRY.
In contrast to them, the FR of Yugoslavia has not done so. The former
Yugoslav Republics have requested that they be recognized as independent
States. The FR of Yugoslavia has not made such a request.
17. The basis of the international legal personality of the FR of
Yugoslavia is the fact that Serbia and Montenegro existed as independent
States before the creation of Yugoslavia in 1918. Both States were
recognized as independent at the Berlin Congress in 1878. After
Yugoslavia
was created in 1918, all international treaties of the Kingdom of Serbia
remained in force and were valid on the enlarged territory of the
Kingdom
of Yugoslavia (Yearbook of the International Law Commission, 1974, vol.
II,
Part One, p. 208). The same applied to diplomatic relations as well.
18. The facts of the Yugoslav crisis cannot be associated with the
notion
of the dissolution of a State as defined under the Vienna Convention on
the
Succession of States in respect of State Property, Archives and Debts of
8
April 1983. The provisions of this Convention, although not containing
an
explicit definition of dissolution, point to an essential element of
this
notion, namely sequence of events. Dissolution and cessation of a State
come first and then new independent States emerge (Articles 18, 31 and
41
thereof). That was the sequence of events in the case of the Czech and
Slovak Federal Republic. It ceased to exist on 31 December 1992, and as
of
1 January 1993 they emerged as the independent Czech Republic and the
Slovak Republic. In its opinions, the Badinter Commission noted that the
SFR of Yugoslavia ceased to exist on 4 July 1992 (Opinion No. 8,
International Legal Materials, 1993, 1521) and that Croatia and Slovenia
became independent on 8 October 1991, while Bosnia and Herzegovina and
Macedonia gained their independence on 6 March 1992 and 17 November
1991,
respectively, and the Federal Republic of Yugoslavia on 27 April 1992
(Opinion No. 11, Ibid., 1587). The above shows the absurdity of findings
of
the Badinter Commission. According to this Commission, all the five
States
first attained their independence and then the SFRY ceased to exist. How
much this fiction is artificial is illustrated by the fact that the date
of
the adoption of the new Constitution of the Federal Republic of
Yugoslavia
was taken as the date on which it became independent. It is fairly
uncommon
in international law to quality the change of constitutional
arrangements
in a State as that State becoming independent.
19. The opinions rendered by the Arbitration Commission of the Peace
Conference on the former Yugoslavia, the so-called Badinter Commission,
are
irrelevant. Although it was referred to as the Arbitration Commission,
the
Badinter Commission was not a Court of Arbitration in the international
legal sense, but rather an advisory body of the international conference
charged with the task of finding solutions for a peaceful outcome of the
Yugoslav crisis. The opinions rendered by it are not legally binding.
Taking into account that the majority of members of the Commission were
judges of constitutional courts, and not experts in international law,
these opinions are not based on international law from the strictly
professional point of view.
20. The opinions of the Badinter Commission are politically motivated
and
not grounded in international law. All insistence on an alleged
dissolution
of the SFRY and on the FR of Yugoslavia not being a Member of the United
Nations is politically ill-intentioned and legally unfounded. Membership
of
the FR of Yugoslavia in the United Nations has nothing to do with the
question of the succession of the SFRY. The Badinter Commission points
out
that the request of the FR of Yugoslavia to be the only successor State
is
unacceptable. This is yet another proof of the absurdity of the opinions
rendered by this Commission. The FR of Yugoslavia does not consider
itself
to be the only successor State, nor does it at all consider itself a
successor State. The successor States are the newly-created States, i.e.
Bosnia and Herzegovina, Republic of Macedonia, Republic of Croatia and
the
Republic of Slovenia. The FR of Yugoslavia is not a successor state but
an
old State which now exists on a shrunken territory. The FR of Yugoslavia
does not contest the status of successor States to the newly-created
States
of the former Yugoslavia and it is prepared to settle the question of
succession of the SFRY by an agreement entered into with these States in
accordance with international law. It has formally undertaken to do so
under the bilateral arrangements indicated below. It insists that the
negotiations on the succession of the SFRY that were abrogated following
the aggression of the Member States of the North Atlantic Treaty
Organization against Yugoslavia, be resumed within the framework of the
Peace Implementation Council. It sees the latest proposal, as put
forward
by Sir Arthur Watts, as a solid basis for a speedy resolution of this
issue
and has pointed out on several occasions already that it essentially
accepts and welcomes the new approach adopted by the Chief Negotiator in
these negotiations.
21. The Declaration of 27 April 1992 on international legal continuity
of
the FR of Yugoslavia has the legal relevance of a constitutional norm.
Therefore, all Yugoslav legal subjects and Government authorities are
obligated to respect it. All statements and acts of the Yugoslav
authorities contrary to it are null and void. In this respect, the
statement made by the then Prime Minister Milan Pani} in the UN General
Assembly on 22 September 1992 upon the adoption of General Assembly
resolution 47/1, in which he "formally sought membership in the United
Nations on behalf of the new Yugoslavia", is legally without effect.
Even
if the statement made by the Prime Minister had had any legal
significance, it could not have had any legal force since it was beside
the
point. The Federal Republic of Yugoslavia is a Member of the United
Nations
and, consequently, its application for membership in the United Nations
is
pointless.
Belgrade, 1 September 2000
YUGOSLAVIA CONCERNING THE MEMBERSHIP OF THE FEDERAL REPUBLIC OF
YUGOSLAVIA
IN THE UNITED NATIONS
I The Federal Republic of Yugoslavia is a Member State of the United
Nations.
1. Yugoslavia is a founding Member of the United Nations in accordance
with
Article 3 of the Charter of the United Nations. The Secretary-General of
the United Nations, as depositary of international treaties, lists it as
an
original Member in his annual reports (Multilateral Treaties Deposited
with
the Secretary-General).
2. Membership of Yugoslavia in the United Nations has not been
interrupted, so that the FR of Yugoslavia is a Member State of the
United
Nations.
3. There is no basis to limit the international legal continuity of the
FR
of Yugoslavia and its membership in the United Nations. All attempts to
do
so lack legal basis, are ill-intentioned and politically harmful and
represent the violation of the Charter of the United Nations. Any
initiatives to directly or indirectly challenge the membership of the
FRY
in the United Nations or challenge its existing membership rights are
aimed at: a) setting a precedent for extremely negative consequences for
the United Nations, principles of the United Nations and international
relations, as well as intimidating Member States; b) weakening the role
and credibility of the United Nations, particularly in the region of
southeastern Europe; c) preventing the stabilization of the situation in
the region of southeastern Europe, the implementation of the
Dayton/Paris agreement and UN SC resolution 1244 (1999); d) slowing
down
integration processes and multilateral cooperation in the Balkans, which
is
possible only with equal participation of the FRY
4. Representatives of the FR of Yugoslavia participated in the work of
the
United Nations General Assembly until 22 September 1992 and in the work
of
the UN Economic and Social Council until 28 April 1993. They continued
to
participate in the work of the UN Security Council and to appear before
the
International Court of Justice even after these dates.
5. United Nations General Assembly considers the FR of Yugoslavia its
Member State This position of the General Assembly was demonstrated
during
the adoption of resolution 49/19B on 23 December 1994 and 52/215 of 22
December 1997. in which it established Scale of assessments for the
apportionment of the expenses of the United Nations. In both
resolutions,
adopted by consensus, Yugoslavia was listed as a Member State and not as
a
non- Member like the Vatikan, Nauru, Switzerland and Tonga. Both
resolutions were adopted after resolution 47/1 of 22 September 1992,
when
decision was made not to allow Yugoslavia to participate in the work of
the
General Assembly. They were also adopted after General Assembly
resolution
48/88 (1993) calling upon the Secretariat to end the de facto working
status of the FR of Yugoslavia which did not produce any consequences
since
it was not possible because the FR of Yugoslavia does not have "the de
facto working status" and is a UN Member State.
6. UN General Assembly resolutions 49/19B and 52/215 point to the FR of
Yugoslavia. This is clear since the same resolution determines the scale
of
assessment for the former Yugoslav republics which became independent
States and UN Members - for Bosnia and Herzegovina, former Yugoslav
Republic of Macedonia, Republic of Croatia and the Republic of Slovenia.
The claim of the representatives of some States to the effect that the
UN
General Assembly in referring to Yugoslavia actually meant the SFRY, is
absurd. All the more so, since the representatives of those States claim
that the FR of Yugoslavia ceased to exist. If that were true, the
membership of that State in the United Nations would also have to end.
It
is clear that the General Assembly in 1994 and 1997 established the
scale
of assessment for all five states from the territory of the SFRY. So
when
it mentions Yugoslavia it can only pertain to the FR of Yugoslavia. It
is
the usual practice of the UN to use the country's shorter name. In these
resolutions, the Republic of Croatia has been referred to only as
Croatia,
the Republic of Slovenia as Slovenia and that is the case with almost
all
other States.
7. The Security Council also considers the FR of Yugoslavia to be a UN
Member State. Resolution 777 (1992) of 19 September 1992 is a result of
a
political compromise. During its adoption, Ambassador Vorontsov,
Permanent
Representative of the Russian Federation to the UN, said: "... we were
unable to agree with the proposal, put forward by some States, that the
Federal Republic of Yugoslavia should be excluded, formally or de facto,
from membership in the United Nations... The compromise that has been
reached - that the Federal Republic of Yugoslavia should not participate
in
the work of the General Assembly - may seem unsatisfactory to some.
Frankly, we would have preferred not to have recourse to such a measure
to
influence the Federal Republic of Yugoslavia, because even without this
measure it is already experiencing sufficient pressure from the
international community in the form of economic sanctions... At the same
time, the decision to suspend the participation of the Federal Republic
of
Yugoslavia in the work of the General Assembly will in no way affect the
possibility of participation by the Federal Republic of Yugoslavia in
the
work of the other organs of the United Nations, in particular the
Security
Council, nor will it affect the issuance of documents to it, the
functioning of the Permanent Mission of the Federal Republic of
Yugoslavia
to the United Nations or the keeping of the nameplate with the name
Yugoslavia in the General Assembly Hall and the rooms in which the
Assembly
s organs meet. In short, since the decision of the Security Council does
not provide for the expulsion of the Federal Republic of Yugoslavia from
the United Nations, the measures taken with regard to it must remain
strictly within the limits of the decision we are taking today."
(Security
Council, Provisional Record of the 3116th, Meeting S/PV.3116, 19
September
1992, at 2-5).
Ambassador Li Daoyu, Permanent Representative of the People's Republic
of
China to the UN said on that occasion: "the resolution just adopted does
not mean the exclusion of Yugoslavia from the United Nations. The
nameplate
"Yugoslavia" will be kept in the General Assembly Hall. The Federal
Republic of Yugoslavia will continue its participation in the work of
United Nations bodies other than the General Assembly. The Federal
Republic
of Yugoslavia will continue to issue its documentation in the United
Nations." (Security Council, Provisional Record of the 3116th Meeting,
S/PV.3116, 19 September 1992, at 7).
It is clear that the Russian Federation and the PR of China during the
adoption of Security Council resolution 777 (1992) of 19 September 1992
considered that this resolution only made a recommendation to
temporarily
limit some of the membership rights of the FR of Yugoslavia as a UN
Member
State.
8. By adopting a new resolution 821 (1993) of 28 April 1993,
recommending
to the General Assembly to make a decision to the effect that the FR of
Yugoslavia does not take part in the work of the Economic and Social
Council, the Security Council confirmed that it considered the FR of
Yugoslavia a UN Member State. If then, on 28 April 1993, Security
Council
considered that the FR of Yugoslavia was not a UN Member State, it would
not have made a recommendation to the General Assembly to decide that
Yugoslavia does not take part in its work. Never in the UN practice has
Security Council of the United Nations made a recommendation to the
effect
that a non Member be prevented from taking part in the work of the
General
Assembly or Economic and Social Council. That would be totally absurd
and
senseless.
The way in which the Security Council calls the representatives
to
take part in its work does not prejudge its position regarding the
membership of the FR of Yugoslavia in the UN. This has been confirmed by
the Security Council Working Group in its report in regard to the
documents
of the Security Council and other procedural issues of 31 May 1995. This
report confirms that the representative of the FR of Yugoslavia took
part
in the work of the Security Council seating at the table with the
nameplate
of Yugoslavia. The representative of the FR of Yugoslavia, inter alia,
also
took part in the subsequent meetings of the UN Security Council, after
the
adoption of General Assembly resolution 47/1 of 22 September 1992: 16
November 1992; 19 February 1993; 17 April 1993; 20 April 1993; 29 June
1993; 9 August 1993; 14 February 1994; 21 April 1994; 27 April 1994; 23
September 1994; 30 September 1994; 8 November 1994; 12 January 1995; 21
April 1995; 31 March 1998 and 10 June 1999. etc.
9. The International Court of Justice has constantly listed the FR of
Yugoslavia in its annual publications after 1992, as a UN Member State.
10. UN Secretariat considers the FR of Yugoslavia to be a UN Member
State. The Under-Secretary General and the Legal Council of the United
Nations addressed a letter dated 29 September 1992 to the Permanent
Representatives of Bosnia and Herzegovina and Croatia to the United
Nations
in response to their letter of 25 September 1992, stating, inter alia,
that
"While the General Assembly has stated unequivocally that the Federal
Republic of Yugoslavia ... cannot automatically continue the membership
of
the former Socialist Federal Republic of Yugoslavia in the United
Nations
and that the Federal Republic of Yugoslavia... should apply for
membership
in the United Nations, the only practical consequence that the
resolution
(47/1) draws is that the Federal Republic of Yugoslavia.... shall not
participate in the work of the General Assembly. It is clear, therefore,
that representatives of the Federal Republic of Yugoslavia... can no
longer
participate in the work of the General Assembly, its subsidiary organs,
nor
conference and meetings convened by it.
On the other hand, the resolution neither terminates nor suspends
Yugoslavia?s membership in the Organization. Consequently, the seat and
nameplate remain as before, but in Assembly bodies representatives of
the
Federal Republic of Yugoslavia... cannot sit behind the sign
"Yugoslavia".
Yugoslav Missions at United Nations Headquarters and offices may
continue
to function and may receive and circulate documents. At Headquarters,
the
Secretariat will continue to fly the flag of the old Yugoslavia, as it
is
the last flag of Yugoslavia used by the Secretariat. The resolution does
not take away the right of Yugoslavia to participate in the work of
organs
other than Assembly bodies." (A/47/485).
The representatives of some states, advocating the view that the FR
of Yugoslavia has dissolved and ceased to exist, claim that this
opinion
indicates that this is the membership of the SFRY in the United Nations.
This claim proves best that the thesis of discontinuity of the FRY in
the
United Nations is invalid. If the SFRY has dissolved and ceased to
exist,
its membership in international organizations would automatically cease
as
well. They maintain that the membership is not ended because the UN
bodies
did not make a decision to end its membership. However, this is absurd,
because the membership ends ipso jure, as a legal consequence of the
dissolution of a State and no decision to that effect is necessary.
After
the German Democratic Republic ceased to exist, the Security Council and
the General Assembly did not make any decision on termination of its
membership in the United Nations nor have they made any decision on
ending
the membership of the Czech and Slovak Federal Republic in the United
Nations.
11. UN Secretary-General regularly invites the FR of Yugoslavia as a
Member
State to fulfil its financial obligations towards the Organization which
Yugoslavia does.
12. In all agreements concluded between the FR of Yugoslavia and the
United
Nations after 1992, it is stated that the FR of Yugoslavia is a UN
Member
State, for example, in the Agreement on the status of the Office of the
High Commissioner for Human Rights in Belgrade, concluded by the
exchange
eof Notes between the FR of Yugoslavia and the UN High Commissioner for
Human Rights on 6 November 1998.
II The Federal Republic of Yugoslavia continues the international
personality of the Socialist Federal Republic of Yugoslavia
13. The Federal Republic of Yugoslavia has continued the international
legal personality of the Socialist Federative Republic of Yugoslavia.
The
Declaration adopted on 27 April 1992 at a joint session of delegates in
the
Federal Assembly, the National Assembly of the Republic of Serbia and
the
Assembly of the Republic of Montenegro on the occasion of the
promulgation
of the Constitution of the FR of Yugoslavia, inter alia, states: "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 SFR of Yugoslavia
assumed internationally" (A/46/915, 7 May 1992).
14. The former Yugoslav Republics of Bosnia and Herzegovina, Republic of
Macedonia and the Republic of Croatia have confirmed the legal fact of
the
continuity of the Federal Republic of Yugoslavia.
Article 5 of the Agreement on Normalization of Relations
between
the Federal Republic of Yugoslavia and the Republic of Croatia, signed
at
Belgrade on 23 August 1996, reads as follows:
"Proceeding from the historical fact that Serbia and Montenegro
existed as independent States before the creation of Yugoslavia, and
bearing in mind the fact that Yugoslavia has continued the international
personality of these states, the Republic of Croatia notes the existence
of
the State continuity of the Federal Republic of Yugoslavia.
"Proceeding from the historical fact of the existence of the
various forms of statal organization of Croatia in the past, the Federal
Republic of Yugoslavia notes the existence of the continuity of the
Croatian statehood.
The Contracting Parties are agreed to solve the issue of the
succession of the Socialist Federal Republic of Yugoslavia on the basis
or
the rule of international law on succession of States and through
agreement." (The text of the Agreement on Normalization of Relations
between the Federal Republic of Yugoslavia and the Republic of Croatia,
signed at Belgrade on 23 August 1996, is attached as annex to the letter
of
the Charge d'Affaires a.i. of the Permanent Mission of Yugoslavia to the
United Nations addressed to the Secretary-General, dated 29 August 1996,
A/51/318; S/1996/706, 29 August 1996).
There is a substantial difference between the State continuity
of
the FR of Yugoslavia and the continuation of the Croatian statehood. The
State continuity of the FR of Yugoslavia is based on the historical fact
that Serbia and Montenegro existed as independent States before the
creation of Yugoslavia and on the fact that the FR of Yugoslavia has
continued the international legal personality of these States. Quite
differently, in the past Croatia enjoyed various forms of statal
organization. It had the status of a Republic - a federal unit in the
Socialist Federal Republic of Yugoslavia, some part of today's Croatia
had
a sort of statal autonomy in the Austro-Hungarian Empire. But, before
armed
secession from Yugoslavia, it had no status of an independent State,
status
of a subject of international law. Accordingly, today's Republic of
Croatia can only continue the various forms of statal organization of
the
past but not the international legal personality.
Essentially, the same formula was used in the Joint Declaration
of
Presidents Slobodan Milo{evi} and Alija Izetbegovi}, made in Paris on 3
October 1996. Paragraph IV of the Joint Declaration reads as follows:
"The Federal Republic of Yugoslavia will respect the integrity
of
Bosnia and Herzegovina in accordance with the Dayton Agreement which
affirmed the continuity of various forms of statal organization of
Bosnia
and Herzegovina that the peoples of Bosnia and Herzegovina had during
their
history.
Bosnia and Herzegovina accepts the State continuity of the
Federal
Republic of Yugoslavia.
Both sides agree to resolve issues of succession on the basis
of
the rules of international law on succession of States and by
agreement."
(The Joint Declaration is attached as annex to the letter of the Charge
d'Affaires a.i. of the Permanent Mission of Yugoslavia to the United
Nations addressed to the Secretary-General, dated 7 October 1996,
A/51/461;
S/1996/830, 7 October 1996).
The text of Article 4 of the Agreement on the regulation of
relations and promotion of cooperation between the Federal Republic of
Yugoslavia and the Republic of Macedonia, signed in Belgrade on 8 April
1996, differs more in terms of terminology than that of substance:
"In the light of the fact that Serbia and Montenegro had
existed
as independent States before the creation of Yugoslavia, and in view of
the
fact that Yugoslavia continued the international legal personality of
these
States, the Republic of Macedonia respects the state continuity of the
Federal Republic of Yugoslavia.
In the light of the fact that during the National Liberation
war
and at the session of the Anti-Fascist Assembly of the National
Liberation
of Macedonia, the Macedonian people decided to organize the Republic of
Macedonia as a State and to join the Yugoslav Federation, and in view of
the fact that in the 1991 referendum the Macedonian people decided to
organize the Republic of Macedonia as a sovereign and independent State
and
appreciating the fact that this has been carried out in a peaceful
manner,
the Federal Republic of Yugoslavia respects the state continuity of the
Republic of Macedonia.
The Parties agree to resolve their mutual claims on ground of
succession to the former Yugoslavia by agreement." (The Agreement is
published as an annex to the letter of the Permanent Representative of
the
Former Yugoslav Republic of Macedonia to the United Nations addressed to
the President of the Security Council, dated 17 April 1996, S/1996/291,
17
April 1996).
In both cases, i.e. Yugoslavia and Macedonia, the Agreement
used
the same term "the state continuity". But, it is quite obvious that the
same terms have not the same meaning. Before its peaceful secession,
Macedonia existed as the Republic of Macedonia - a federal unit of the
Socialist Federal Republic of Yugoslavia. It did not exist as an
independent state, a subject of international law. For the first time in
history, it became such a subject after peaceful secession.
15. The United States implicitly confirmed the legal fact regarding the
international legal continuity of the FR of Yugoslavia. By its Note No.
C-42 of 5 May 1998, transmitted to the Federal Ministry of Foreign
Affairs,
the Embassy of the United States of America in Belgrade claimed the
extradition of Rifat Fteja, a Yugoslav citizen charged with several
criminal offences committed in the United States. The extradition
request
is based on the Extradition Treaty of 1901. Accordingly, the position of
the US Government is that the Extradition Treaty, concluded between the
Kingdom of Serbia and the United States of America on 12/25 October
1901,
is in force between the Kingdom of Serbia and the United States in 1998.
It
confirmed the international legal continuity of both States. Namely, if
the
FR of Yugoslavia is a new State, it should conclude a separate agreement
with the United States on succession in respect of bilateral treaties.
In
the absence of such an agreement, the United States considers the 1901
Treaty to be in force and, consequently, implicitly confirms the
international legal continuity of the FR of Yugoslavia. The fact of the
international legal continuity of the FR of Yugoslavia was also
confirmed
by exchange of Notes between the FR of Yugoslavia and the United States
(Notes Nos. 10763 and 22, respectively) in 1996 concerning the
establishment of the US Information Service Centre in Pri{tina. The
exchange of Notes shows that both sides consider that the Memorandum of
Understanding, signed between the Federative People's Republic of
Yugoslavia and the United States in Belgrade on 14 June 1961, to be
still
in force.
16. The largest number of other States have explicitly or implicitly
confirmed the international legal continuity of the FR of Yugoslavia.
This
is an obvious proof of the existence of unbroken-off diplomatic
relations
between the FR of Yugoslavia and 160 States with which the SFRY had
maintained diplomatic relations. The majority of States consider that
bilateral agreements entered into with the SFRY are in force also in
their
relations with the FR of Yugoslavia. Some Members States of the European
Union, such as Austria, Greece and the United Kingdom, have also
formally
recognized this fact through exchange of Notes, whereas some other, like
Italy, have done so by making a unilateral declaration. The former
Yugoslav
Republics, upon becoming independent States, have established diplomatic
relations with other States. This was not the case with the FR of
Yugoslavia, since it is not a new State. These States have entered
separately into agreements with third States on succession in respect of
bilateral treaties which existed between these third States and the
SFRY.
In contrast to them, the FR of Yugoslavia has not done so. The former
Yugoslav Republics have requested that they be recognized as independent
States. The FR of Yugoslavia has not made such a request.
17. The basis of the international legal personality of the FR of
Yugoslavia is the fact that Serbia and Montenegro existed as independent
States before the creation of Yugoslavia in 1918. Both States were
recognized as independent at the Berlin Congress in 1878. After
Yugoslavia
was created in 1918, all international treaties of the Kingdom of Serbia
remained in force and were valid on the enlarged territory of the
Kingdom
of Yugoslavia (Yearbook of the International Law Commission, 1974, vol.
II,
Part One, p. 208). The same applied to diplomatic relations as well.
18. The facts of the Yugoslav crisis cannot be associated with the
notion
of the dissolution of a State as defined under the Vienna Convention on
the
Succession of States in respect of State Property, Archives and Debts of
8
April 1983. The provisions of this Convention, although not containing
an
explicit definition of dissolution, point to an essential element of
this
notion, namely sequence of events. Dissolution and cessation of a State
come first and then new independent States emerge (Articles 18, 31 and
41
thereof). That was the sequence of events in the case of the Czech and
Slovak Federal Republic. It ceased to exist on 31 December 1992, and as
of
1 January 1993 they emerged as the independent Czech Republic and the
Slovak Republic. In its opinions, the Badinter Commission noted that the
SFR of Yugoslavia ceased to exist on 4 July 1992 (Opinion No. 8,
International Legal Materials, 1993, 1521) and that Croatia and Slovenia
became independent on 8 October 1991, while Bosnia and Herzegovina and
Macedonia gained their independence on 6 March 1992 and 17 November
1991,
respectively, and the Federal Republic of Yugoslavia on 27 April 1992
(Opinion No. 11, Ibid., 1587). The above shows the absurdity of findings
of
the Badinter Commission. According to this Commission, all the five
States
first attained their independence and then the SFRY ceased to exist. How
much this fiction is artificial is illustrated by the fact that the date
of
the adoption of the new Constitution of the Federal Republic of
Yugoslavia
was taken as the date on which it became independent. It is fairly
uncommon
in international law to quality the change of constitutional
arrangements
in a State as that State becoming independent.
19. The opinions rendered by the Arbitration Commission of the Peace
Conference on the former Yugoslavia, the so-called Badinter Commission,
are
irrelevant. Although it was referred to as the Arbitration Commission,
the
Badinter Commission was not a Court of Arbitration in the international
legal sense, but rather an advisory body of the international conference
charged with the task of finding solutions for a peaceful outcome of the
Yugoslav crisis. The opinions rendered by it are not legally binding.
Taking into account that the majority of members of the Commission were
judges of constitutional courts, and not experts in international law,
these opinions are not based on international law from the strictly
professional point of view.
20. The opinions of the Badinter Commission are politically motivated
and
not grounded in international law. All insistence on an alleged
dissolution
of the SFRY and on the FR of Yugoslavia not being a Member of the United
Nations is politically ill-intentioned and legally unfounded. Membership
of
the FR of Yugoslavia in the United Nations has nothing to do with the
question of the succession of the SFRY. The Badinter Commission points
out
that the request of the FR of Yugoslavia to be the only successor State
is
unacceptable. This is yet another proof of the absurdity of the opinions
rendered by this Commission. The FR of Yugoslavia does not consider
itself
to be the only successor State, nor does it at all consider itself a
successor State. The successor States are the newly-created States, i.e.
Bosnia and Herzegovina, Republic of Macedonia, Republic of Croatia and
the
Republic of Slovenia. The FR of Yugoslavia is not a successor state but
an
old State which now exists on a shrunken territory. The FR of Yugoslavia
does not contest the status of successor States to the newly-created
States
of the former Yugoslavia and it is prepared to settle the question of
succession of the SFRY by an agreement entered into with these States in
accordance with international law. It has formally undertaken to do so
under the bilateral arrangements indicated below. It insists that the
negotiations on the succession of the SFRY that were abrogated following
the aggression of the Member States of the North Atlantic Treaty
Organization against Yugoslavia, be resumed within the framework of the
Peace Implementation Council. It sees the latest proposal, as put
forward
by Sir Arthur Watts, as a solid basis for a speedy resolution of this
issue
and has pointed out on several occasions already that it essentially
accepts and welcomes the new approach adopted by the Chief Negotiator in
these negotiations.
21. The Declaration of 27 April 1992 on international legal continuity
of
the FR of Yugoslavia has the legal relevance of a constitutional norm.
Therefore, all Yugoslav legal subjects and Government authorities are
obligated to respect it. All statements and acts of the Yugoslav
authorities contrary to it are null and void. In this respect, the
statement made by the then Prime Minister Milan Pani} in the UN General
Assembly on 22 September 1992 upon the adoption of General Assembly
resolution 47/1, in which he "formally sought membership in the United
Nations on behalf of the new Yugoslavia", is legally without effect.
Even
if the statement made by the Prime Minister had had any legal
significance, it could not have had any legal force since it was beside
the
point. The Federal Republic of Yugoslavia is a Member of the United
Nations
and, consequently, its application for membership in the United Nations
is
pointless.
Belgrade, 1 September 2000