¹ Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia), Preliminary Objections (Yugoslavia v Bosnia and Herzegovina), 3 Feb 2003 [hereinafter referred to as Application for Revision] <http://www.jcj-cij.org>>Google Scholar

² Geiss, R ‘Revision Proceedings before the International Court of Justice’, 63 ZaöRV (2003), 167;Google ScholarBernàdez, S Torres ‘A Propos de L'interprétation et de la révision des arrêts de la Cour internationale de Justice’, in le droit international à I'heure de sa codification: Etudes en Vhonneur de Robert Ago vol III (MilanoGiuffrè 1987) at 443 ff.Google Scholar

³ Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro)) Provisional Measures, Order of 8 Apr 1993, ICJ Rep (1993), at 3.Google Scholar

⁴ Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia), Preliminary Objections, ICJ Rep 1996, at 594, para 41.Google Scholar

⁵ Above n 3, para 18.Google Scholar

⁶ See SC Res 777 (1992); GA Res 47/1 (1992).Google Scholar

⁷ Above n 4, para 17.Google Scholar

⁸ Application Instituting Proceedings, filed in the Registry of the Court on 24 Apr 2001, at 38, para 23; Application for Revision, para 18.Google Scholar

⁹ Application for Revision, para 19.Google Scholar

¹⁰ Ibid, para 68.

¹¹ Ibid, para 69.

¹² Ibid, paras 70 and 71.

¹³ Ibid, para 31.5

¹⁴ Ibid, para 44. The situation might have been different if those resolutions were adopted under Art 5 or Art 6 of the UN Charter that deal respectively with suspension or expulsion of States. B Simma (ed) The Charter of the United Nations (2nd edn Oxford OUP 2002), at 177–214. See also ‘Correspondent's Agora: UN Membership of the Former Yugoslavia’ 87 AJIL (1993) 240 ff.CrossRefGoogle Scholar

¹⁵ Art 60 Statute of the Court; Corfu Channel case: Assessment of the Amount of Compensation due from the People's Republic of Albania to the United Kingdom of Great Britain and Northern Ireland, ICJ Rep 1949, at 243 and 248: ‘the Albanian Government disputed the jurisdiction of the Court with regard to the assessment of damages. The Court may confine itself to stating that this jurisdiction was established by its Judgment of 9 Apr 1949; that, in accordance with the Statute [Art 60]… that Judgment is final and without appeal, and that therefore the matter is res judicata.’ In the Barcelona Traction case the Court said that by res judicata it means ‘finally disposed of for good’ (Case Concerning the Barcelona Traction, Light and Power Company, Limited, New Application: 1962 (Belgium v Spain), ICJ Rep 1964, at 6 and 20). See also Pardo v France (Revision), 22 EHRR (1996) 563, para 21: ‘Inasmuch as it calls into question the final character of its judgments, the possibility of revision…is an exceptional procedure. That is why the admissibility of any request for revision of a judgment of the Court under this procedure is subject to strict scrutiny.’Google Scholar

¹⁶ Effect of Awards of Compensation made by the United Nations Administrative Tribunal, Advisory Opinion, ICJ (1954), at 46 and 55; Case 116/78 Rev Arturo Bellintani and Others v Commission [1980] ECR 23 at 27; Case T–106/89, Norsk Hydro A/S v Commission, [1994] ECR 11–419, at 428; Case T–4/89, BASF AG v Commission, [1992] ECR 11–1591, at 1596, para 9: ‘revision is not an appeal procedure but an exceptional review procedure that allows an applicant to call in question the authority of res judicata attaching to a judgment bringing the proceedings to an end on the basis of the findings of fact relied upon by the Court’.Google Scholar

¹⁷ Art 60 of the Statute and Art 98 of the Rules; Request for Interpretation of the Judgment of 20 Nov 1950, in the Asylum case (Colombia/Peru), ICJ Rep 1950, at 394 and 402.Google Scholar

¹⁸ There is ‘no provision in the Statute and Rules of Court’ concerning correction of an error. Application for Revision and Interpretation of the Judgment of 24 Feb 1982 in the Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) ICJ Rep 1985, at 192, para 8 [hereinafter referred to as Tunisia/Libya].Google Scholar

¹⁹ Application for Revision, para 16; Application for Revision of the Judgment of 11 Sept 1992 in the Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening) 18 Dec 2003, para 19 [hereinafter referred to as El Salvador/Honduras].Google Scholar

²⁰ Application for Revision, para 15; Tunisia/Libya, para 10.Google Scholar

²¹ Application for Revision, para 73; El Salvador/Honduras, para 59; Tunisia/Libya, para 29.Google Scholar

²² Arturo Bellintanti, above n 16, para 2: ‘at the time of the delivery of judgment the Court must have been unaware of a fact already in existence.’Google Scholar

²³ Application for Revision, para 67.Google Scholar

²⁴ See Separate Opinion of Judge ad hoc Mahiou, ibid, para 9.

²⁵ For instance, in the Pardo case, the European Court of Human Rights accepted as facts documents that existed prior to the judgment but to which the applicant secured access only after the judgment and which were ‘capable of establishing the objective proof of the accuracy of his version of events and of undermining the whole basis of the Court's reasoning in its judgment.’ Pardo v France (Revision), 22 EHRR (1996) 563, para 19.Google Scholar

²⁶ Case T–14/89, Montecatini Spa v Commission, [1992] ECR 11–2409, paras 11, 12; In BASF AG, the applicant relied on statements made by the European Commission in the press and in a previous hearing. The ECJ rejected the second basis because the applicant was present at the hearing where the statements were made and, in any case, they were made before the impugned decision. Concerning the subsequent press statements, they confirmed those made during the hearing and, thus, they were not new facts for revision purposes. BASF AG v Commission, [1992] ECR II–1591, paras 10–16. The ECJ has also accepted that a subsequent decision by a national court that reveals issues relating to facts included in a previous judgment renders the latter open to revision. Case 56/70, Fonderie Acciaierie Giovanni Mandelli v Commission [1971] ECR 1; Case C–403/85 Rev Ferrandi v Commission [1991] ECR 1–1215, at 1220, para 12.Google Scholar

²⁷ Ram International Industries v Air Force of Iran 29 Iran–US Claims Tribunal Rep (1993), at 383 and 390; Arturo Bellintanti, above n 16, para 2; Tunisia/Libya, para 39.Google Scholar

²⁸ Rosenne, SThe Law and Practice of the International Court, 1920–1996 (3rd ednThe HagueMartinus Nijhoff 1997), vol III ‘Procedure’, at 1671.Google Scholar

²⁹ It is what the Court did in Tunisia/Libya revision case. The Court considered the ‘new’ facts presented against its judgment and concluded that ‘so far from constituting such a fact, the details of the correct coordinates… would not have changed the decision of the Court as to the first sector of the delimitation’, ibid, para 39. This could have been a judgment on the merits after having declared the case admissible.

³⁰ Indicative of such approach is the dissenting opinion of Judges Golciiklii, Pettiti, Palm, and Jungwiert in the Pardo case, who considered the case inadmissible against the background of the exceptional character of the revision procedure. Pardo v France (Revision), 22 EHRR (1996) 563, 571–2.Google Scholar

³¹ See Judge Koroma Application for Revision, para 11.Google Scholar

³² As the ICJ said ‘the question whether or not Yugoslavia is a Member of the United Nations and as such a party to the Statute of the Court is one which the Court does not need to determine definitely at the present stage of the proceedings’. Above n 3, para 18; See also Case Concerning the Legality of the Use of Force (Yugoslavia v Belgium), Provisional Measures, Order of 2 June 1999, ICJ Rep (1999), at 123, para 31. In his separate opinion Judge Oda proposed the rejection of the case on the basis that the FRY was not a member of the United Nations or State party to the Statute of the Court. ibid,, paras 3–4. Also see the Dissenting Opinion of Judge Kooijmans, ibid, paras 20–5.

³³ It is not clear whether a decision on jurisdiction is res judicata. See South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa), ICJ Rep 1966, at 4, para 59.Google Scholar