Has Pandora's Box Been Closed? The Decisions on the Legality of Use of Force Cases in Relation to the Status of the Federal Republic of Yugoslavia (Serbia and Montenegro) within the United Nations

Abstract

In its judgments on the preliminary objections in the Legality of Use of Force cases, the Court held that the FRY was not a UN member in the period between 1992 and 2000. This finding is controversial, at odds with previous decisions of the Court, and has indeed attracted criticism from various judges. This article proposes a different construction of the question of the FRY's membership within the UN and reviews arguments that allow doubts to be cast on the reasoning of the Court. Because of the link between UN membership and the FRY's participation in the Genocide Convention, the Court's finding in the Legality of Use of Force cases may have some implications for two sets of proceedings still pending before the Court (Bosnia and Herzegovina v. Serbia and Montenegro and Croatia v. Serbia and Montenegro). In the former case, an interpretation of the extent of the res judicata principle may allow the Court not to reopen the issue of jurisdiction, already decided in 1996 on the basis of Article IX of the Genocide Convention. In the latter case, various options might allow the FRY to be regarded as a party to the Genocide Convention.