11 July 1996

 

General List No. 91

 
     

international Court of Justice

     
 

Application of the Convention on the Prevention and Punishment of the Crime of Genocide

 
     

Bosnia and Herzegovina

 

v. 

Yugoslavia

     
     
 

Judgment

 
     
  Return Home
 
 
     
     
 
BEFORE: President: Bedjaoui;
Vice-President: Schwebel;
Judges: Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Koroma, Vereshchetin, Ferrari Bravo, Parra-Aranguren
Judges ad hoc: Lauterpacht, Kreca
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1996.07.11_genocide_convention.htm
   
Citation: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. and Herz. v. Yugo.), Judgment, 1996 I.C.J. 595 (July 14)
   
Represented By: Bosnia and Herzegovina: H.E. Mr. Muhamed Sacirbey, Ambassador and Permanent Representative of the Republic of Bosnia and Herzegovina to the United Nations, as Agent;
Mr. Phon van den Biesen, Attorney in Amsterdam, as Deputy-Agent, Counsel and Advocate;
Mr. Thomas M. Franck, Professor at the School of Law and Director, Center for International Studies, New York University;
Mr. Alain Pellet, Professor, University of Paris X-Nanterre and Institute of Political Studies, Paris;
Ms Brigitte Stern, Professor, University of Paris I (Pantheon, Sorbonne), as Counsel and Advocates;
Mr. Khawar M. Qureshi, Member of the English Bar, Lecturer in Law, King's College, London;
Mr. Vasvija Vidovic, Minister-Counsellor, Embassy of Bosnia and Herzegovina in the Netherlands, Representative of the Republic of Bosnia and Herzegovina at the International Criminal Tribunal for the former Yugoslavia;
Mr. Marc Weller, Assistant Director of Studies, Centre for International Studies, University of Cambridge, Member of the Faculty of Law of the University of Cambridge, as Counsel;
Mr. Pierre Bodeau, Research Assistant/Tutor, University of Paris X-Nanterre;
Mr. Michiel Pestman, Attorney in Amsterdam;
Mr. Thierry Vaissiere, Research Student, Cedin - Paris I (Pantheon, Sorbonne), as Counsellors;
Mr. Herve Ascensio, Research Assistant/Tutor, University of Paris X-Nanterre;
Ms Marieke Drenth;
Ms Froana Hoff;
Mr. Michael Kellogg;
Mr. Harold Kocken;
Ms Nathalie Lintvelt;
Mr. Sam Muller;
Mr. Joop Nijssen;
Mr. Eelco Szabo, as Assistants;

Yugoslavia: Mr. Rodoljub Etinski, Chief Legal Adviser, Ministry of Foreign Affairs of the Federal Republic of Yugoslavia, Professor of International Law, Novi Sad University;
Mr. Djordje Lopicic, Charge d'Affaires, Embassy of the Federal Republic of Yugoslavia in the Netherlands, as Agents;
Mr. Ian Brownlie, C.B.E., F.B.A., Q.C., Chichele Professor of Public International Law, University of Oxford;
Mr. Miodrag Mitic, Assistant Federal Minister for Foreign Affairs of the Federal Republic of Yugoslavia (Ret.);
Mr. Eric Suy, Professor, Catholic University of Louvain (K.U. Leuven), formerly Under-Secretary-General and Legal Counsel of the United Nations, as Counsel and Advocates;
Mr. Stevan Djordjevic, Professor of International Law, Belgrade University;
Mr. Shabtai Rosenne, Ambassador;
Mr. Gavro Perazic, Professor of International Law, Podgorica University, as Counsel.

 
     
 
 
     
 

[p.595]

THE COURT,

composed as above,

after deliberation,

delivers the following Judgment:

1. On 20 March 1993, the Government of the Republic of Bosnia-Herzegovina (hereinafter called "Bosnia-Herzegovina") filed in the Registry of the Court an Application instituting proceedings against the Government of [p 598] the Federal Republic of Yugoslavia (hereinafter called "Yugoslavia") in respect of a dispute concerning alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter called "the Genocide Convention"), adopted by the General Assembly of the United Nations on 9 December 1948, as well as various matters which Bosnia-Herzegovina claims are connected therewith. The Application invoked Article IX of the Genocide Convention as the basis of the jurisdiction of the Court.

2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was immediately communicated to the Yugoslav Government by the Registrar; pursuant to paragraph 3 of that Article, all States entitled to appear before the Court were notified of the Application.

3. Pursuant to Article 43 of the Rules of Court, the Registrar addressed the notification provided for in Article 63, paragraph 1, of the Statute to all the States which appeared to be parties to the Genocide Convention on the basis of the information supplied by the Secretary-General of the United Nations as depositary; he also addressed to the Secretary-General the notification provided for in Article 34, paragraph 3, of the Statute.

4. On 20 March 1993, immediately after the filing of its Application, Bosnia-Herzegovina submitted a request for the indication of provisional measures under Article 41 of the Statute. On 31 March 1993, the Agent of Bosnia-Herzegovina filed in the Registry, invoking it as an additional basis of the jurisdiction of the Court in the case, the text of a letter dated 8 June 1992, addressed to the President of the Arbitration Commission of the International Conference for Peace in Yugoslavia by the Presidents of the Republics of Montenegro and Serbia.

On 1 April 1993, Yugoslavia submitted written observations on Bosnia-Herzegovina's request for provisional measures, in which, in turn, it recommended the Court to order the application of provisional measures to Bosnia-Herzegovina.

By an Order dated 8 April 1993, the Court, after hearing the Parties, indicated certain provisional measures with a view to the protection of rights under the Genocide Convention.

5. By an Order of 16 April 1993, the President of the Court fixed 15 October 1993 as the time-limit for the filing of the Memorial of Bosnia-Herzegovina and 15 April 1994 as the time-limit for the filing of the Counter-Memorial of Yugoslavia.

6. Since the Court included upon the Bench no judge of the nationality of the Parties, each of them exercised its right under Article 31, paragraph 3, of the Statute of the Court to choose a judge ad hoc to sit in the case: Bosnia-Herzegovina chose Mr. Elihu Lauterpacht, and Yugoslavia chose Mr. Milenko KreCa.

7. On 27 July 1993, Bosnia-Herzegovina submitted a new request for the indication of provisional measures; and, by a series of subsequent communications, it stated that it was amending or supplementing that request, as well as, in some cases, the Application, including the basis of jurisdiction relied on therein. By letters of 6 August and 10 August 1993, the Agent of Bosnia-Herzegovina indicated that his Government was relying, as additional bases of the jurisdiction of the Court in the case, on, respectively, the Treaty between the Allied and Associated Powers and the Kingdom of the Serbs, Croats and Slovenes on the Protection of Minorities, signed at Saint-Germain-en-Laye on [p 599]10 September 1919, and on customary and conventional international laws of war and international humanitarian law; and, by a letter of 13 August 1993, the Agent of Bosnia-Herzegovina confirmed his Government's desire to rely, on the same basis, on the aforementioned letter from the Presidents of Montenegro and Serbia, dated 8 June 1992 (see paragraph 4 above).

On 10 August 1993, Yugoslavia also submitted a request for the indication of provisional measures; and, on 10 August and 23 August 1993, it filed written observations on Bosnia-Herzegovina's new request, as amended or supplemented.

By an Order dated 13 September 1993, the Court, after hearing the Parties, reaffirmed the measures indicated in its Order of 8 April 1993 and declared that those measures should be immediately and effectively implemented.

8. By an Order dated 7 October 1993, the Vice-President of the Court, at the request of Bosnia-Herzegovina, extended to 15 April 1994 the time-limit for the filing of the Memorial; the time-limit for the filing of the Counter-Memorial was extended, by the same Order to 15 April 1995. Bosnia-Herzegovina duly filed its Memorial within the extended time-limit thus fixed.

9. By an Order dated 21 March 1995, the President of the Court, at the request of Yugoslavia, extended to 30 June 1995 the time-limit for the filing of the Counter-Memorial. Within the extended time-limit thus fixed, Yugoslavia, referring to Article 79, paragraph 1, of the Rules of Court, raised preliminary objections concerning, respectively, the admissibility of the Application and the jurisdiction of the Court to entertain the case. Accordingly, by an Order dated 14 July 1995, the President of the Court, noting that, by virtue of Article 79, paragraph 3, of the Rules of Court, the proceedings on the merits were suspended, fixed 14 November 1995 as the time-limit within which Bosnia-Herzegovina could present a written statement of its observations and submissions on the preliminary objections raised by Yugoslavia. Bosnia-Herzegovina filed such a statement within the time-limit so fixed, and the case became ready for hearing in respect of the preliminary objections.

10. By a letter dated 2 February 1996, the Agent of Yugoslavia submitted to the Court, "as a document relevant to the case", the text of the General Framework Agreement for Peace in Bosnia and Herzegovina and the annexes thereto (collectively "the peace agreement"), initialled in Dayton, Ohio, on 21 November 1995 and signed in Paris on 14 December 1995 (hereinafter called the "Dayton-Paris Agreement").

11. Pursuant to Article 53, paragraph 2, of the Rules of Court, the Court decided to make the pleadings and documents annexed thereto accessible to the public on the opening of the oral proceedings.

12. Public hearings were held between 29 April and 3 May 1996 at which the Court heard the oral arguments and replies of:

For Yugoslavia: Mr. Rodoljub Etinski,
Mr. Miodrag Mitic,
Mr. Djordje Lopicic,
Mr. Eric Suy,
Mr. Ian Brownlie,
Mr. Gavro Perazic.
[p 600]
For Bosnia-Herzegovina: H.E. Mr. Muhamed Sacirbey,
Mr. Phon van den Biesen,
Mr. Alain Pellet,
Ms Brigitte Stern,
Mr. Thomas M. Franck.

*

13. In the Application, the following requests were made by Bosnia-Herzegovina:


"Accordingly, while reserving the right to revise, supplement or amend this Application, and subject to the presentation to the Court of the relevant evidence and legal arguments, Bosnia and Herzegovina requests the Court to adjudge and declare as follows:

(a) that Yugoslavia (Serbia and Montenegro) has breached, and is continuing to breach, its legal obligations toward the People and State of Bosnia and Herzegovina under Articles I, II (a), II (b), II (c), II (d), III (a), III (b), III (c), III (d), III (e), IV and V of the Genocide Convention;

(b) that Yugoslavia (Serbia and Montenegro) has violated and is continuing to violate its legal obligations toward the People and State of Bosnia and Herzegovina under the four Geneva Conventions of 1949, their Additional Protocol I of 1977, the customary international laws of war including the Hague Regulations on Land Warfare of 1907, and other fundamental principles of international humanitarian law;

(c) that Yugoslavia (Serbia and Montenegro) has violated and continues to violate Articles 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26 and 28 of the Universal Declaration of Human Rights with respect to the citizens of Bosnia and Herzegovina;

(d) that Yugoslavia (Serbia and Montenegro), in breach of its obligations under general and customary international law, has killed, murdered, wounded, raped, robbed, tortured, kidnapped, illegally detained, and exterminated the citizens of Bosnia and Herzegovina, and is continuing to do so;

(e) that in its treatment of the citizens of Bosnia and Herzegovina, Yugoslavia (Serbia and Montenegro) has violated, and is continuing to violate, its solemn obligations under Articles 1 (3), 55 and 56 of the United Nations Charter;

(f) that Yugoslavia (Serbia and Montenegro) has used and is continuing to use force and the threat of force against Bosnia and Herzegovina in violation of Articles 2 (1), 2 (2), 2 (3), 2 (4), and 33 (1), of the United Nations Charter;

(g) that Yugoslavia (Serbia and Montenegro), in breach of its obligations under general and customary international law, has used and is using force and the threat of force against Bosnia and Herzegovina;

(h) that Yugoslavia (Serbia and Montenegro), in breach of its obligations under general and customary international law, has violated and is violating the sovereignty of Bosnia and Herzegovina by:


. armed attacks against Bosnia and Herzegovina by air and land; [p 601]

. aerial trespass into Bosnian airspace;

. efforts by direct and indirect means to coerce and intimidate the Government of Bosnia and Herzegovina;


(i) that Yugoslavia (Serbia and Montenegro), in breach of its obligations under general and customary international law, has intervened and is intervening in the internal affairs of Bosnia and Herzegovina;

(j) that Yugoslavia (Serbia and Montenegro), in recruiting, training, arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding, and directing military and paramilitary actions in and against Bosnia and Herzegovina by means of its agents and surrogates, has violated and is violating its express charter and treaty obligations to Bosnia and Herzegovina and, in particular, its charter and treaty obligations under Article 2 (4) of the United Nations Charter, as well as its obligations under general and customary international law;

(k) that under the circumstances set forth above, Bosnia and Herzegovina has the sovereign right to defend Itself and its People under United Nations Charter Article 51 and customary international law, including by means of immediately obtaining military weapons, equipment, supplies and troops from other States;

(l) that under the circumstances set forth above, Bosnia and Herzegovina has the sovereign right under United Nations Charter Article 51 and customary international law to request the immediate assistance of any State to come to its defence, including by military means (weapons, equipment, supplies, troops, etc.);

(m) that Security Council resolution 713 (1991), imposing a weapons embargo upon the former Yugoslavia, must be construed in a manner that shall not impair the inherent right of individual or collective self-defence of Bosnia and Herzegovina under the terms of United Nations Charter Article 51 and the rules of customary international law;

(n) that all subsequent Security Council resolutions that refer to or reaffirm resolution 713 (1991) must be construed in a manner that shall not impair the inherent right of individual or collective self-defence of Bosnia and Herzegovina under the terms of United Nations Charter Article 51 and the rules of customary international law;

(o) that Security Council resolution 713 (1991) and all subsequent Security Council resolutions referring thereto or reaffirming thereof must not be construed to impose an arms embargo upon Bosnia and Herzegovina, as required by Articles 24 (1) and 51 of the United Nations Charter and in accordance with the customary doctrine of ultra vires;

(p) that pursuant to the right of collective self-defence recognized by United Nations Charter Article 51, all other States parties to the Charter have the right to come to the immediate defence of Bosnia and Herzegovina -- at its request -- < including by means of immediately providing it with weapons, military equipment and supplies, and armed forces (soldiers, sailors, airpeople, etc.); [p 602]

(q) that Yugoslavia (Serbia and Montenegro) and its agents and surrogates are under an obligation to cease and desist immediately from its breaches of the foregoing legal obligations, and is under a particular duty to cease and desist immediately:


. from its systematic practice of so-called 'ethnic cleansing' of the citizens and sovereign territory of Bosnia and Herzegovina;

. from the murder, summary execution, torture, rape, kidnapping, mayhem, wounding, physical and mental abuse, and detention of the citizens of Bosnia and Herzegovina;

. from the wanton devastation of villages, towns, districts, cities, and religious institutions in Bosnia and Herzegovina;

. from the bombardment of civilian population centres in Bosnia and Herzegovina, and especially its capital, Sarajevo;

. from continuing the siege of any civilian population centres in Bosnia and Herzegovina, and especially its capital, Sarajevo;

. from the starvation of the civilian population in Bosnia and Herzegovina;

. from the interruption of, interference with, or harassment of humanitarian relief supplies to the citizens of Bosnia and Herzegovina by the international community;

. from all use of force -- whether direct or indirect, overt or covert -- against Bosnia and Herzegovina, and from all threats of force against Bosnia and Herzegovina;

. from all violations of the sovereignty, territorial integrity or political independence of Bosnia and Herzegovina, including all intervention, direct or indirect, in the internal affairs of Bosnia and Herzegovina;

. from all support of any kind -- including the provision of training, arms, ammunition, finances, supplies, assistance, direction or any other form of support -- to any nation, group, organization, movement or individual engaged or planning to engage in military or paramilitary actions in or against Bosnia and Herzegovina;


(r) that Yugoslavia (Serbia and Montenegro) has an obligation to pay Bosnia and Herzegovina, in its own right and as parens patriae for its citizens, reparations for damages to persons and property as well as to the Bosnian economy and environment caused by the foregoing violations of international law in a sum to be determined by the Court. Bosnia and Herzegovina reserves the right to introduce to the Court a precise evaluation of the damages caused by Yugoslavia (Serbia and Montenegro)."


14. In the written proceedings, the following submissions were presented by the Parties:

On behalf of the Government of Bosnia-Herzegovina,

in the Memorial:

"On the basis of the evidence and legal arguments presented in this Memorial, the Republic of Bosnia and Herzegovina, [p 603]

Requests the International Court of Justice to adjudge and declare,

That the Federal Republic of Yugoslavia (Serbia and Montenegro), directly, or through the use of its surrogates, has violated and is violating the Convention of the Prevention and Punishment of the Crime of Genocide, by destroying in part, and attempting to destroy in whole, national, ethnical or religious groups within the, but not limited to the, territory of the Republic of Bosnia and Herzegovina, including in particular the Muslim population, by


. killing members of the group;

. causing deliberate bodily or mental harm to members of the group;

. deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;


imposing measures intended to prevent births within the group;

2. That the Federal Republic of Yugoslavia (Serbia and Montenegro) has violated and is violating the Convention on the Prevention and Punishment of the Crime of Genocide by conspiring to commit genocide, by complicity in genocide, by attempting to commit genocide and by incitement to commit genocide;

3. That the Federal Republic of Yugoslavia (Serbia and Montenegro) has violated and is violating the Convention on the Prevention and Punishment of the Crime of Genocide by aiding and abetting individuals and groups engaged in acts of genocide;

4. That the Federal Republic of Yugoslavia (Serbia and Montenegro) has violated and is violating the Convention on the Prevention and Punishment of the Crime of Genocide by virtue of having failed to prevent and to punish acts of genocide;

5. That the Federal Republic of Yugoslavia (Serbia and Montenegro) must immediately cease the above conduct and take immediate and effective steps to ensure full compliance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide;

6. That the Federal Republic of Yugoslavia (Serbia and Montenegro) must wipe out the consequences of its international wrongful acts and must restore the situation existing before the violations of the Convention on the Prevention and Punishment of the Crime of Genocide were committed;

7. That, as a result of the international responsibility incurred for the above violations of the Convention on the Prevention and Punishment of the Crime of Genocide, the Federal Republic of Yugoslavia (Serbia and Montenegro) is required to pay, and the Republic of Bosnia and Herzegovina is entitled to receive, in its own right and as parens patriae for its citizens, full compensation for the damages and losses caused, in the amount to be determined by the Court in a subsequent phase of the proceedings in this case.

The Republic of Bosnia and Herzegovina reserves its right to supplement or amend its submissions in the light of further pleadings.

The Republic of Bosnia and Herzegovina also respectfully draws the attention of the Court to the fact that it has not reiterated, at this point, several of the requests it made in its Application, on the formal assumption that the Federal Republic of Yugoslavia (Serbia and Montenegro) has [p 604] accepted the jurisdiction of this Court under the terms of the Convention on the Prevention and Punishment of the Crime of Genocide. If the Respondent were to reconsider its acceptance of the jurisdiction of the Court under the terms of that Convention -- which it is, in any event, not entitled to do -- the Government of Bosnia and Herzegovina reserves its right to invoke also all or some of the other existing titles of jurisdiction and to revive all or some of its previous submissions and requests."


On behalf of the Government of Yugoslavia,

in the preliminary objections:

"The Federal Republic of Yugoslavia asks the Court to adjudge and declare:

First preliminary objection

A.1. Whereas civil war excludes the existence of an international dispute, the Application of the so-called Republic of Bosnia and Herzegovina is not admissible.

Second preliminary objection

A.2. Whereas Alija Izetbegovic did not serve as the President of the Republic at the time when he granted the authorization to initiate proceedings and whereas the decision to initiate proceedings was not taken by the Presidency nor the Government as the competent organs, the authorization for the initiation and conduct of proceedings was granted in violation of a rule of internal law of fundamental significance and, consequently,

the Application by the so-called Republic of Bosnia-Herzegovina is not admissible.

Third preliminary objection

B.1. Whereas the so-called Republic of Bosnia-Herzegovina has by its acts on independence flagrantly violated the duties stemming from the principle of equal rights and self-determination of peoples and for that reason the Notification of Succession, dated 29 December 1992, of the Applicant to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide has no legal effect,

Whereas the so-called Republic of Bosnia-Herzegovina has not become a State party to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide in accordance with the provisions of the Convention itself,

The so-called Republic of Bosnia and Herzegovina is not a State party to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and consequently

the Court has no jurisdiction over this case.

Fourth preliminary objection

B.2. Whereas the so-called Republic of Bosnia-Herzegovina has been recognized in contravention of the rules of international law and that [p 605] it has never been established in the territory and in the form in which it pretends to exist ever since its illegal declaration of independence, and that there are at present four States in existence in the territory of the former Yugoslav Republic of Bosnia-Herzegovina, the so-called Republic of Bosnia-Herzegovina is not a party to the 1948 Convention on the Prevention and Punishment of the Crime or Genocide, and consequently,

the Court has no jurisdiction over this case.

Fifth preliminary objection

C. Whereas the case in point is an internal conflict between four sides in which the FR of Yugoslavia is not taking part and whereas the FR of Yugoslavia did not exercise any jurisdiction over the disputed areas in the period under review,

Whereas the Memorial of the Applicant State is based upon a fundamentally erroneous construction of the 1948 Convention on Prevention and Punishment of the Crime of Genocide and, in consequence the claims contained in the 'Submissions' are based on allegations of State responsibility which fall outside the scope of the Convention and of its compromissory clause,

there is no international dispute under Article IX of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and, consequently,

the Court has no jurisdiction over this case.

If the Court does not accept any of the above-mentioned preliminary objections,

Sixth preliminary objection

D.1. Without prejudice to the above exposed preliminary objections, whereas the Notification of Succession, dated 29 December 1992, whereby the so-called Republic of Bosnia-Herzegovina expressed the intention to enter into the 1948 Convention on the Prevention and Punishment of the Crime of Genocide can only produce the effect of accession to the Convention,

the Court has jurisdiction over this case as of 29 March 1993 and, thus, the Applicant's claims pertaining to the alleged acts or facts which occurred prior to that date do not fall within the jurisdiction of the Court.

In case the Court refuses to adopt the preliminary objection under D.1.

Seventh preliminary objection

D.2. Without prejudice to the sixth preliminary objection, if the Applicant State's Notification of Succession, dated 29 December 1992, is construed on the basis that it has the effect that the Applicant State became a party to the 1948 Genocide Convention from 6 March 1992, according to the rule of customary international law, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide would not be operative between the parties prior to 29 December 1992 and, accordingly this would [p 606] not confer jurisdiction on the Court in respect of events occurring prior to 29 December 1992 and consequently,

the Applicant's claims pertaining to the alleged acts or facts which occurred prior to 29 December 1992 do not fall within the jurisdiction of the Court.

The Federal Republic of Yugoslavia reserves its right to supplement or amend its submissions in the light of further pleadings."


On behalf of the Government of Bosnia-Herzegovina,

In the written statement containing its observations and submissions on the preliminary objections:


"In consideration of the foregoing, the Government of the Republic of Bosnia and Herzegovina requests the Court:

. to reject and dismiss the Preliminary Objections of Yugoslavia (Serbia and Montenegro); and

. to adjudge and declare:

(i) that the Court has jurisdiction in respect of the submissions presented in the Memorial of Bosnia and Herzegovina; and

(ii) that the submissions are admissible."

15. In the oral proceedings, the following submissions were presented by the Parties:

On behalf of the Government of Yugoslavia,FN1

--------------------------------------------------------------------------------------------------------------------
FN1The Government of Yugoslavia relinquished its fourth preliminary objection.
---------------------------------------------------------------------------------------------------------------------

at the hearing on 2 May 1996:


"The Federal Republic of Yugoslavia asks the Court to adjudge and declare:

First Preliminary Objection

Whereas the events in Bosnia and Herzegovina to which the Application refers constituted a civil war, no international dispute exists within the terms of Article IX of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, consequently,

the Application of Bosnia and Herzegovina is not admissible.

Second Preliminary Objection

Whereas Mr. Alija Izetbegovic did not serve as the President of the Republic at the time when he granted the authorization to initiate proceedings and whereas the decision to initiate proceedings was not taken either by the Presidency or the Government as the competent organs, the authorization for the initiation and conduct of proceedings was granted in violation of the rules of internal law of fundamental significance, consequently,

the Application by Bosnia-Herzegovina is not admissible.

Third Preliminary Objection

Whereas Bosnia and Herzegovina has not established its independent [p 607] statehood in conformity with the principle of equal rights and self-determination of peoples and for that reason could not succeed to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide,

Whereas Bosnia-Herzegovina has not become a party to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide in accordance with the provisions of the Convention itself,

Bosnia and Herzegovina is not a party to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, consequently

the Court lacks the competence over the case.

Fifth Preliminary Objection

Whereas the case in point is an internal conflict between three sides in which the FR of Yugoslavia was not taking part and whereas the FR of Yugoslavia did not exercise any jurisdiction within the region of Bosnia and Herzegovina at the material time,

Whereas the Memorial of the Applicant State is based upon a fundamentally erroneous interpretation of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and, in consequence the claims contained in the "Submissions" are based on allegations of State responsibility which fall outside the scope of the Convention and of its compromissory clause,

there is no international dispute under Article IX of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, consequently,

the Court lacks the competence over the case.

If the Court does not accept any of the above-mentioned Preliminary Objections,

Sixth Preliminary Objection

Without prejudice to the above exposed Preliminary Objections, whereas the two Parties recognized each other on 14 December 1995, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide was not operative between them prior to 14 December 1995, consequently,

the Court lacks the competence before 14 December 1995 over the case.

Alternatively and without prejudice to the Preliminary Objections formulated above, whereas the Notification of Succession, dated 29 December 1992, whereby Bosnia-Herzegovina expressed the intention to enter into the 1948 Convention on the Prevention and Punishment of the Crime of Genocide can only produce the effect of accession to the Convention,

the Court lacks competence before 29 March 1993 over the case and, thus, the Applicant's claims pertaining to the alleged acts or facts which occurred prior to that date do not fall within the competence of the Court.

In case the Court refuses to adopt the above Preliminary Objections:[p 608]

Seventh Preliminary Objection

If the Applicant State's Notification of Succession, dated 29 December 1992, is construed as having an effect of the Applicant State becoming a party to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide from 6 March 1992 and whereas the Secretary-General of the United Nations sent to the parties of the said Convention the Note dated 18 March 1993, informing of the said succession, according to the rules of general international law, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide would not be operative between the Parties prior to 18 March 1993 and, whereas this would not confer the competence on the Court in respect of events occurring prior to the 18 March 1993, consequently,

the Applicant's claims pertaining to the alleged acts or facts which occurred prior to the 18 March 1993 do not fall with the competence of the Court.

As a final alternative,

If the Applicant State's Notification of Succession, dated 29 December 1992, is construed as having the effect of the Applicant State becoming a party to the Convention on the Prevention and Punishment of the Crime of Genocide from 6 March 1992, according to the rules of general international law, the 1948 Convention

on the Prevention and Punishment of the Crime of Genocide would not be operative between the Parties prior to 29 December 1992, and, whereas this would not confer competence on the Court in respect of events occurring prior to 29 December 1992, consequently,

the Applicant's claims pertaining to the alleged acts or facts which occurred prior to 29 December 1992 do not fall within the competence of the Court.

Objections on Alleged Additional Bases of Jurisdiction

In view of the claim of the Applicant to base the jurisdiction of the Court under Articles 11 and 16 of the Treaty between Allied and Associated Powers and the Kingdom of Serbs, Croats and Slovenes, signed at Saint-Germain-en-Laye on 10 September 1919, the Federal Republic of Yugoslavia asks the Court

to reject the said claim,

. because the Treaty between Allied and Associated Powers and the Kingdom of Serbs, Croats and Slovenes signed at Saint-Germain-en-Laye on 10 September 1919 is not in force; and alternatively

. because the Applicant is not entitled to invoke the jurisdiction of the Court according to Articles 11 and 16 of the Treaty.

In view of the claim of the Applicant to establish the jurisdiction of the Court on the basis of the letter of 8 June 1992, sent by the Presidents of the two Yugoslav Republics, Serbia and Montenegro, Mr. Slobodan Milosevic and Mr. Momir Bulatovic, to the President of the Arbitration Commission of the Conference on Yugoslavia, the Federal Republic of Yugoslavia
asks the Court

to reject the said claim, [p 609]

. because the declaration contained in the letter of 8 June 1992 cannot be understood as a declaration of the Federal Republic of Yugoslavia according to the rules of international law; and

. because the declaration was not in force on 31 March 1993 and later.

In view of the claim of the Applicant State to establish the jurisdiction of the Court on the basis of the doctrine of forum prorogatum, the Federal Republic of Yugoslavia asks the Court

to reject the said claim


. because the request for indication of provisional measures of protection does not imply a consent to the jurisdiction of the Court; and

. because the conditions for the application of the doctrine of forum prorogatum are not fulfilled."


On behalf of the Government of Bosnia-Herzegovina,

at the hearing on 3 May 1996:


"Considering what has been stated by Bosnia and Herzegovina in all of its previous written submissions, considering what has been stated by the representatives of Bosnia and Herzegovina in the course of this week's oral proceedings, the Government of Bosnia and Herzegovina respectfully requests the Court,

1. to adjudge and declare that the Federal Republic of Yugoslavia has abused its right to raise preliminary objections as foreseen in Article 36, paragraph 6, of the Statute of the Court and to Article 79 of the Rules of Court;

2. to reject and dismiss the preliminary objections of the Federal Republic of Yugoslavia; and

3. to adjudge and declare:

(i) that the Court has jurisdiction on the various grounds set out in our previous written submissions and as further demonstrated during the present pleadings in respect of the submissions presented in the Memorial of Bosnia and Herzegovina; and

(ii) that the submissions are admissible."

***


16. Bosnia-Herzegovina has principally relied, as a basis for the jurisdiction of the Court in this case, on Article IX of the Genocide Convention. The Court will initially consider the preliminary objections raised by Yugoslavia on this point. It takes note, first, of the withdrawal by Yugoslavia, during the oral proceedings, of its fourth preliminary objection, which therefore need no longer be dealt with. In its third objection, Yugoslavia, on various grounds, has disputed the contention that the Convention binds the two Parties or that it has entered into force between them; and in its fifth objection, Yugoslavia has objected, for various reasons, to the argument that the dispute submitted by Bosnia-[p 610] Herzegovina falls within the provisions of Article IX of the Convention. The Court will consider these two alleged grounds of lack of jurisdiction in turn.

*

17. The proceedings instituted before the Court are between two States whose territories are located within the former Socialist Federal Republic of Yugoslavia. That Republic signed the Genocide Convention on 11 December 1948 and deposited its instrument of ratification, without reservation, on 29 August 1950. At the time of the proclamation of the Federal Republic of Yugoslavia, on 27 April 1992, a formal declaration was adopted on its behalf 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."

This intention thus expressed by Yugoslavia to remain bound by the international treaties to which the former Yugoslavia was party was confirmed in an official Note of 27 April 1992 from the Permanent Mission of Yugoslavia to the United Nations, addressed to the Secretary-General. The Court observes, furthermore, that it has not been contested that Yugoslavia was party to the Genocide Convention. Thus, 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.

18. For its part, on 29 December 1992, Bosnia-Herzegovina transmitted to the Secretary-General of the United Nations, as depositary of the Genocide Convention, a Notice of Succession in the following terms:

"the Government of the Republic of Bosnia and Herzegovina, having considered the Convention on the Prevention and Punishment of the Crime of Genocide, of December 9, 1948, to which the former Socialist Federal Republic of Yugoslavia was a party, wishes to succeed to the same and undertakes faithfully to perform and carry out all the stipulations therein contained with effect from March 6, 1992, the date on which the Republic of Bosnia and Herzegovina became independent".

On 18 March 1993, the Secretary-General communicated the following Depositary Notification to the parties to the Genocide Convention:

"On 29 December 1992, the notification of succession by the Government of Bosnia and Herzegovina to the above-mentioned Convention was deposited with the Secretary-General, with effect from 6 March 1992, the date on which Bosnia and Herzegovina assumed responsibility for its international relations." [p 611]


19. Yugoslavia has contested the validity and legal effect of the Notice of 29 December 1992, contending that, by its acts relating to its accession to independence, the Republic of Bosnia-Herzegovina had flagrantly violated the duties stemming from the "principle of equal rights and self-determination of peoples". According to Yugoslavia, Bosnia-Herzegovina was not, for this reason, qualified to become a party to the convention. Yugoslavia subsequently reiterated this objection in the third preliminary objection which it raised in this case.

The Court notes that Bosnia-Herzegovina became a Member of the United Nations following the decisions adopted on 22 May 1992 by the Security Council and the General Assembly, bodies competent under the Charter. 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-Herzegovina could thus become a party to the Convention. Hence the circumstances of its accession to independence are of little consequence.

20. It is clear from the foregoing that Bosnia-Herzegovina could become a party to the Convention through the mechanism of State succession. Moreover, the Secretary-General of the United Nations considered that this had been the case, and the Court took note of this in its Order of 8 April 1993 (I.C.J. Reports 1993, p. 16, para. 25).

21. The Parties to the dispute differed as to the legal consequences to be drawn from the occurrence of a State succession in the present case. In this context, Bosnia-Herzegovina has, among other things, contended that the Genocide Convention falls within the category of instruments for the protection of human rights, and that consequently, the rule of "automatic succession" necessarily applies. Bosnia-Herzegovina concluded therefrom that it became a party to the Convention with effect from its accession to independence. Yugoslavia disputed any "automatic succession" of Bosnia-Herzegovina to the Genocide Convention on this or any other basis.

22. As regards the nature of the Genocide Convention, the Court would recall what it stated in its Advisory Opinion of 28 May 1951 relating to the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide:

"In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d'?tre of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties." (I.C.J. Reports 1951, p. 23.) [p 612]

The Court subsequently noted in that Opinion that:

"The object and purpose of the Genocide Convention imply that it was the intention of the General Assembly and of the States which adopted it that as many States as possible should participate. The complete exclusion from the Convention of one or more States would not only restrict the scope of its application, but would detract from the authority of the moral and humanitarian principles which are its basis." (Ibid., p. 24.)


23. Without prejudice as to whether or not the principle of "automatic succession" applies in the case of certain types of international treaties or conventions, the Court does not consider it necessary, in order to decide on its jurisdiction in this case, to make a determination on the legal issues concerning State succession in respect to treaties which have been raised by the Parties. Whether Bosnia-Herzegovina automatically became party to the Genocide Convention on the date of its accession to independence on 6 March 1992, or whether it became a party as a result -- retroactive or not -- of its Notice of Succession of 29 December 1992, at all events it was a party to it on the date of the filing of its Application on 20 March 1993. These matters might, at the most, possess a certain relevance with respect to the determination of the scope ratione temporis of the jurisdiction of the Court, a point which the Court will consider later (paragraph 34 below).

24. Yugoslavia has also contended, in its sixth preliminary objection, that, if the Notice given by Bosnia-Herzegovina on 29 December 1992 had to be interpreted as constituting an instrument of accession within the meaning of Article XI of the Genocide Convention, it could only have become effective, pursuant to Article XIII of the Convention, on the 90th day following its deposit, that is, 29 March 1993.

Since the Court has concluded that Bosnia-Herzegovina could become a party to the Genocide Convention as a result of a succession, the question of the application of Articles XI and XIII of the Convention does not arise. However, the Court would recall that, as it noted in its Order of 8 April 1993, even if Bosnia-Herzegovina were to be treated as having acceded to the Genocide Convention, which would mean that the Application could be said to be premature by nine days when filed on 20 March 1993, during the time elapsed since then, Bosnia-Herzegovina could, on its own initiative, have remedied the procedural defect by filing a new Application. It therefore matters little that the Application had been filed some days too early. As will be indicated in the following paragraphs, the Court is not bound to attach the same degree of importance to considerations of form as they might possess in domestic law.

25. However, in the oral proceedings Yugoslavia submitted that, even supposing that Bosnia-Herzegovina had been bound by the Convention in March 1993, it could not, at that time, have entered into force [p 613] between the Parties, because the two States did not recognize one another and the conditions necessary to found the consensual basis of the Court's jurisdiction were therefore lacking. However, this situation no longer obtains since the signature, and the entry into force on 14 December 1995, of the Dayton-Paris Agreement, Article X of which stipulates that:

"The Federal Republic of Yugoslavia and the Republic of Bosnia and Herzegovina recognize each other as sovereign independent States within their international borders. Further aspects of their mutual recognition will be subject to subsequent discussions."

26. For the purposes of determining its jurisdiction in this case, the Court has no need to settle the question of what the effects of a situation of non-recognition may be on the contractual ties between parties to a multilateral treaty. It need only note that, even if it were to be assumed that the Genocide Convention did not enter into force between the Parties until the signature of the Dayton-Paris Agreement, all the conditions are now fulfilled to found the jurisdiction of the Court ratione personae.

It is the case that the jurisdiction of the Court must normally be assessed on the date of the filing of the act instituting proceedings. However, the Court, like its predecessor, the Permanent Court of International Justice, has always had recourse to the principle according to which it should not penalize a defect in a procedural act which the applicant could easily remedy. Hence, in the case concerning the Mavrommatis Palestine Concessions, the Permanent Court said:

"Even if the grounds on which the institution of proceedings was based were defective for the reason stated, this would not be an adequate reason for the dismissal of the applicant's suit. The Court, whose jurisdiction is international, is not bound to attach to matters of form the same degree of importance which they might possess in municipal law. Even, therefore, if the application were premature because the Treaty of Lausanne had not yet been ratified, this circumstance would now be covered by the subsequent deposit of the necessary ratifications." (P.C.I.J., Series A, No. 2, p. 34.)

The same principle lies at the root of the following dictum of the Permanent Court of International Justice in the case concerning Certain German Interests in Polish Upper Silesia:

"Even if, under Article 23, the existence of a definite dispute were necessary, this condition could at any time be fulfilled by means of unilateral action on the part of the applicant Party. And the Court cannot allow itself to be hampered by a mere defect of form, the removal of which depends solely on the Party concerned." (P.C.I.J., Series A, No. 6, p.14.)

The present Court applied this principle in the case concerning the Northern Cameroons (I.C.J. Reports, 1963, p. 28), as well as Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) when it stated: "It would make no sense to require Nicaragua now to institute fresh proceedings based on the Treaty, which it would be fully entitled to do." (I.C.J. Reports 1984, pp. 428-429, para. 83.)

In the present case, even if it were established that the Parties, each of which was bound by the Convention when the Application was filed, had only been bound as between themselves with effect from 14 December 1995, the Court could not set aside its jurisdiction on this basis, inasmuch as Bosnia-Herzegovina might at any time file a new application, identical to the present one, which would be unassailable in this respect.

In the light of the foregoing, the Court considers that it must reject Yugoslavia's third preliminary objection.

*

27. In order to determine whether it has jurisdiction to entertain the case on the basis of Article IX of the Genocide Convention, it remains for the Court to verify whether there is a dispute between the Parties that falls within the scope of that provision. Article IX of the Convention is worded as follows:

"Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute."

It is jurisdiction ratione materiae, as so defined, to which Yugoslavia's fifth objection relates.

28. In their final form, the principal requests submitted by Bosnia-Herzegovina are for the Court to adjudge and declare that Yugoslavia has in several ways violated the Genocide Convention; to order Yugoslavia to cease the acts contrary to the obligations stipulated in the Convention; and to declare that Yugoslavia has incurred international responsibility by reason of those violations, for which it must make appropriate reparation. While Yugoslavia has refrained from filing a Counter-Memorial on the merits and has raised preliminary objections, it has nevertheless wholly denied all of Bosnia-Herzegovina's allegations, whether at the stage of proceedings relating to the requests for the indication of provisional measures, or at the stage of the present proceedings relating to those objections.

29. In conformity with well-established jurisprudence, the Court accordingly notes that there persists

"a situation in which the two sides hold clearly opposite views concerning the question of the performance or non-performance of certain treaty obligations" (Interpretation of Peace Treaties with [p 615] Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74)

and that, by reason of the rejection by Yugoslavia of the complaints formulated against it by Bosnia-Herzegovina, "there is a legal dispute" between them (East Timor (Portugal v. Australia), I.C.J. Reports 1995, p. 100, para. 22).

30. To found its jurisdiction, the Court must, however, still ensure that the dispute in question does indeed fall within the provisions of Article IX of the Genocide Convention.

Yugoslavia disputes this. It contests the existence in this case of an "international dispute" within the meaning of the Convention, basing itself on two propositions: first, that the conflict occurring in certain parts of the Applicant's territory was of a domestic nature, Yugoslavia was not party to it and did not exercise jurisdiction over that territory at the time in question; and second, that State responsibility, as referred to in the requests of Bosnia-Herzegovina, was excluded from the scope of application of Article IX.

31. The Court will begin with a consideration of Yugoslavia's first proposition.

In doing so, it will start by recalling the terms of Article I of the Genocide Convention, worded as follows:

"The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish."

The Court sees nothing in this provision which would make the applicability of the Convention subject to the condition that the acts contemplated by it should have been committed within the framework of a particular type of conflict. The contracting parties expressly state therein their willingness to consider genocide as "a crime under international law", which they must prevent and punish independently of the context "of peace" or "of war" in which it takes place. In the view of the Court, this means that the Convention is applicable, without reference to the circumstances linked to the domestic or international nature of the conflict, provided the acts to which it refers in Articles II and III have been perpetrated. In other words, irrespective of the nature of the conflict forming the background to such acts, the obligations of prevention and punishment which are incumbent upon the States parties to the Convention remain identical.

As regards the question whether Yugoslavia took part -- directly or indirectly < in the conflict at issue, the Court would merely note that the Parties have radically differing viewpoints in this respect and that it cannot, at this stage in the proceedings, settle this question, which clearly belongs to the merits.

Lastly, as to the territorial problems linked to the application of the Convention, the Court would point out that the only provision relevant [p 616] to this, Article VI, merely provides for persons accused of one of the acts prohibited by the Convention to "be tried by a competent tribunal of the State in the territory of which the act was committed . . .". It would also recall its understanding of the object and purpose of the Convention, as set out in its Opinion of 28 May 1951, cited above:

"The origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as 'a crime under international law' involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations (Resolution 96 (I) of the General Assembly, December 11th 1946). The first consequence arising from this conception is that the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation. A second consequence is the universal character both of the condemnation of genocide and of the co-operation required 'in order to liberate mankind from such an odious scourge' (Preamble to the Convention)." (I.C.J. Reports 1951, p. 23.)


It follows that the rights and obligations enshrined by the Convention are rights and obligations erga omnes. The Court notes that the obligation each State thus has to prevent and to punish the crime of genocide is not territorially limited by the Convention.

32. The Court now comes to the second proposition advanced by Yugoslavia, regarding the type of State responsibility envisaged in Article IX of the Convention. According to Yugoslavia, that Article would only cover the responsibility flowing from the failure of a State to fulfil its obligations of prevention and punishment as contemplated by Articles V, VI and VII; on the other hand, the responsibility of a State for an act of genocide perpetrated by the State itself would be excluded from the scope of the Convention.

The Court would observe that the reference in Article IX to "the responsibility of a State for genocide or for any of the other acts enumerated in Article III", does not exclude any form of State responsibility.

Nor is the responsibility of a State for acts of its organs excluded by Article IV of the Convention, which contemplates the commission of an act of genocide by "rulers" or "public officials".

33. In the light of the foregoing, the Court considers that it must reject the fifth preliminary objection of Yugoslavia. It would moreover observe that it is sufficiently apparent from the very terms of that objection that the Parties not only differ with respect to the facts of the case, their imputability and the applicability to them of the provisions of the Genocide Convention, but are moreover in disagreement with respect to the meaning and legal scope of several of those provisions, including Article IX. For the Court, there is accordingly no doubt that there exists a dispute between them relating to "the interpretation, application or [p 617] fulfilment of the . . . Convention, including . . . the responsibility of a State for genocide . . .", according to the form of words employed by that latter provision (cf. Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J. Reports 1988, pp. 27-32).

*

34. Having reached the conclusion that it has jurisdiction in the present case, both ratione personae and ratione materiae on the basis of Article IX of the Genocide Convention, it remains for the Court to specify the scope of that jurisdiction ratione temporis. In its sixth and seventh preliminary objections, Yugoslavia, basing its contention on the principle of the non-retroactivity of legal acts, has indeed asserted as a subsidiary argument that, even though the Court might have jurisdiction on the basis of the Convention, it could only deal with events subsequent to the different dates on which the Convention might have become applicable as between the Parties. In this regard, the Court will confine itself to the observation that the Genocide Convention -- and in particular Article IX -- does not contain any clause the object or effect of which is to limit in such manner the scope of its jurisdiction ratione temporis, and nor did the Parties themselves make any reservation to that end, either to the Convention or on the occasion of the signature of the Dayton-Paris Agreement. The Court thus finds that it has jurisdiction in this case to give effect to the Genocide Convention with regard to the relevant facts which have occurred since the beginning of the conflict which took place in Bosnia-Herzegovina. This finding is, moreover, in accordance with the object and purpose of the Convention as defined by the Court in 1951 and referred to above (see paragraph 31 above). As a result, the Court considers that it must reject Yugoslavia's sixth and seventh preliminary objections.

**

35. After the filing of its Application, Bosnia-Herzegovina invoked various additional bases of jurisdiction of the Court in the present case. Even though, in both the written and oral proceedings, it relied essentially upon Article IX of the Genocide Convention, Bosnia-Herzegovina indicated that it was maintaining its claims in relation to those additional grounds of jurisdiction. In particular, it specified at the hearing that while it was renouncing "all the claims [set forth in its Application] which are not directly linked to the genocide committed or abetted by Yugoslavia", those additional bases could nonetheless

"present a degree of interest, enabling the Court to make findings on some of the means used by Yugoslavia to perpetrate the genocide of which it stands accused, and particularly its recourse to a war of [p 613] aggression during which it seriously violated the 1949 Geneva Conventions and the 1977 Protocols I and II";

and Bosnia-Herzegovina went on to say that "The Court might proceed in this way on the basis of Article IX alone", explaining that

"The possibility of relying on other bases of jurisdiction . . . would at least . . . avoid futile arguments between the Parties as to whether such conduct is or is not linked 'with sufficient directness' to the Convention."

36. Yugoslavia, for its part, contended during the proceedings that the Court could not take account of such additional grounds as could have been referred to in the Application but to which no reference was in fact made. However, in its final submissions, it did not reiterate that objection and asked the Court, for the reasons there given, to declare that it lacked jurisdiction on those grounds.

*

37. As the Court has indicated above (see paragraph 4 above), the Agent of Bosnia-Herzegovina filed in the Registry, on 31 March 1993, the text of a letter dated 8 June 1992 that was addressed to the President of the Arbitration Commission of the International Conference for Peace in Yugoslavia by Mr. Momir Bulatovic, President of the Republic of Montenegro, and Mr. Slobodan Milosevic, President of the Republic of Serbia. According to the English translation of that letter provided by Bosnia-Herzegovina, they expressed the following views, inter alia:

"FR Yugoslavia holds the view that all legal disputes which cannot be settled by agreement between FR Yugoslavia and the former Yugoslav republics should be taken to the International Court of Justice, as the principal judicial organ of the United Nations.

Accordingly, and in view of the fact that all the issues raised in your letter are of a legal nature, FR Yugoslavia proposes that in the event that agreement is not reached among the participants in the Conference, these questions should be adjudicated by the International Court of Justice, in accordance with its Statute."

The Court finds that, given the circumstances in which that letter was written and the declarations that ensued, it could not be taken as expressing an immediate commitment by the two Presidents, binding on Yugoslavia, to accept unconditionally the unilateral submission to the Court of a wide range of legal disputes. It thus confirms the provisional conclusion which it had reached in this regard in its Orders of 8 April (I.C.J. Reports 1993, pp. 16-18, paras. 27-32) and 13 September 1993 (I.C.J. Reports 1993, pp. 340-341, para. 32); besides, no fundamentally new argument has been presented to it on this matter since that time. It fol-[p 619]lows that the Court cannot find in that letter an additional basis of jurisdiction in the present case.

38. The Court has likewise recalled above (see paragraph 7) that, by a communication dated 6 August 1993, the Agent of Bosnia-Herzegovina indicated that his Government intended likewise to submit, as an additional basis of jurisdiction, the Treaty between the Allied and Associated Powers (the United States of America, the British Empire, France, Italy and Japan) and the Kingdom of the Serbs, Croats and Slovenes, that was signed at Saint-Germain-en-Laye on 10 September 1919 and entered into force on 16 July 1920. Chapter I of that Treaty concerns the protection of minorities and includes an Article 11 according to which:

"The Serb-Croat-Slovene State agrees that any Member of the Council of the League of Nations shall have the right to bring to the attention of the Council any infraction, or any danger of infraction, of any of these obligations, and that the Council may thereupon take such action and give such directions as it may deem proper and effective in the circumstances.

The Serb-Croat-Slovene State further agrees that any difference of opinion as to questions of law or fact arising out of these Articles between the Serb-Croat-Slovene State and any one of the Principal Allied and Associated Powers or any other Power, a member of the Council of the League of Nations, shall be held to be a dispute of an international character under Article 14 of the Covenant of the League of Nations. The Serb-Croat-Slovene State hereby consents that any such dispute shall, if the other party thereto demands, be referred to the Permanent Court of International Justice. The decision of the Permanent Court shall be final and shall have the same force and effect as an award under Article 13 of the Covenant."

Chapter II, which concerns succession in respect of treaties, trade, the treatment of foreign vessels and freedom of transit, includes an Article 16 which provides, inter alia, that

"All rights and privileges accorded by the foregoing Articles to the Allied and Associated Powers shall be accorded equally to all States Members of the League of Nations."

Bosnia-Herzegovina substantially contends that, by the effect of those two provisions, any Member of the League of Nations could refer to the Permanent Court a dispute to which Article 11 applied; that the General Assembly of the United Nations has taken the place of the Council of the League of Nations in respect of such matters; and that Bosnia-Herzegovina, as a Member of the United Nations, may now, by operation of Article 37 of the Statute, seise the present Court of its dispute with Yugoslavia, on the basis of the 1919 Treaty.

The Court considers that, in so far as Yugoslavia is now bound by the [p 620] 1919 Treaty as successor to the Kingdom of the Serbs, Croats and Slovenes, its obligations under that Treaty would be limited to its present territory; it notes that Bosnia-Herzegovina has put forward no claim in its Application concerning the treatment of minorities in Yugoslavia. In these circumstances, the Court is unable to uphold the 1919 Treaty as a basis on which its jurisdiction in this case could be founded. On this point as well, the Court thus confirms the provisional conclusion reached in its Order of 13 September 1993 (I.C.J. Reports 1993, pp. 339-340, paras. 29-31); besides, no fundamentally new argument has been presented on this matter either, since that time.

39. As the Court has also recalled above (see paragraph 7), Bosnia-Herzegovina, by a letter from its Agent dated 10 August 1993, further invoked as an additional basis of jurisdiction in the present case

"the Customary and Conventional International Laws of War and International Humanitarian Law, including but not limited to the Four Geneva Conventions of 1949, their First Additional Protocol of 1977, the Hague Regulations on Land Warfare of 1907, and the Nuremberg Charter, Judgment, and Principles".

As it has already pointed out in its Order of 13 September 1993 (I.C.J. Reports 1993, p. 341, para. 33), the Court can find no provision relevant to its jurisdiction in any of the above-mentioned instruments. It notes, in addition, that the Applicant has made no further reference to this basis of jurisdiction as such.

40. Lastly, at a later stage of the proceedings, Bosnia-Herzegovina advanced two related arguments aimed at basing the Court's jurisdiction in this case on still other grounds.

According to the first of those arguments, Yugoslavia, by various aspects of its conduct in the course of the incidental proceedings set in motion by the requests for the indication of provisional measures, had acquiesced in the jurisdiction of the Court on the basis of Article IX of the Genocide Convention. As the Court has already reached the conclusion that it has jurisdiction on the basis of that provision, it need no longer consider that question.

According to the second argument, as Yugoslavia, on 1 April 1993, itself called for the indication of provisional measures some of which were aimed at the preservation of rights not covered by the Genocide Convention, it was said, in accordance with the doctrine of forum prorogatum (stricto sensu), to have given its consent to the exercise by the Court, in the present case, of a wider jurisdiction than that provided for in Article IX of the Convention. Given the nature of both the provisional measures subsequently requested by Yugoslavia on 9 August 1993 -- which were aimed exclusively at the preservation of rights conferred by [p 621] the Genocide Convention -- and the unequivocal declarations whereby Yugoslavia consistently contended during the subsequent proceedings that the Court lacked jurisdiction -- whether on the basis of
the Genocide Convention or on any other basis -- the Court finds that it must confirm the provisional conclusion that it reached on that subject in its Order of 13 September 1993 (I.C.J. Reports 1993, pp. 341-342, para. 34). The Court does not find that the Respondent has given in this case a "voluntary and indisputable" consent (see Corfu Channel, Preliminary Objection, Judgment, I.C.J. Reports 1947-1948, p. 27) which would confer upon it a jurisdiction exceeding that which it has already acknowledged to have been conferred upon it by Article IX of the Genocide Convention.

*

41. It follows from the foregoing that the Court is unable to uphold any of the additional bases of jurisdiction invoked by the Applicant and that its only jurisdiction to entertain the case is on the basis of Article IX of the Genocide Convention.

***

42. Having ruled on the objections raised by Yugoslavia with respect to its jurisdiction, the Court will now proceed to consider the objections of Yugoslavia that relate to the admissibility of the Application.

*

43. According to the first preliminary objection of Yugoslavia, the Application is said to be inadmissible on the ground that it refers to events that took place within the framework of a civil war, and there is consequently no international dispute upon which the Court could make a finding.

This objection is very close to the fifth objection which the Court has already considered (paragraphs 27-33). In responding to the latter objection, the Court has in fact also answered this. Having noted that there does indeed exist between the Parties a dispute falling within the provisions of Article IX of the Genocide Convention -- that is to say an international dispute --, the Court cannot find that the Application is inadmissible on the sole ground that, in order to decide the dispute, it would be impelled to take account of events that may have occurred in a context of civil war. It follows that the first objection of Yugoslavia must be rejected.

44. According to the second objection of Yugoslavia, the Application is inadmissible because, as Mr. Alija Izetbegovic was not serving as President of the Republic -- but only as President of the Presidency -- at the time at which he granted the authorization to initiate proceedings, that authorization was granted in violation of certain rules of domestic law of fundamental significance. Yugoslavia likewise contended that Mr. Izetbegovic -- was not even acting legally at that time as President of the Presidency.

The Court does not, in order to rule on that objection, have to consider the provisions of domestic law which were invoked in the course of the proceedings either in support of or in opposition to that objection. According to international law, there is no doubt that every Head of State is presumed to be able to act on behalf of the State in its international relations (see for example the Vienna Convention on the Law of Treaties, Art. 7, para. 2 (a)). As the Court found in its Order of 8 April 1993 (I.C.J. Reports 1993, p. 11, para. 13), at the time of the filing of the Application, Mr. Izetbegovic was recognized, in particular by the United Nations, as the Head of State of Bosnia-Herzegovina. Moreover, his status as Head of State continued subsequently to be recognized in many international bodies and several international agreements -- including the Dayton-Paris Agreement -- bear his signature. It follows that the second preliminary objection of Yugoslavia must also be rejected.

*

45. The Court concludes from the foregoing that the Application filed by Bosnia-Herzegovina on 20 March 1993 is admissible.

***

46. The Court has taken note of the withdrawal of the fourth preliminary objection of Yugoslavia and has rejected the other preliminary objections. In conclusion, the Court emphasizes that in so doing it does not consider that Yugoslavia has, in presenting those objections, abused its rights to do so under Article 36, paragraph 6, of the Statute of the Court and Article 79 of the Rules of Court. The Court rejects the request made to that end by Bosnia-Herzegovina in its final submissions. The Court must, in each case submitted to it, verify whether it has jurisdiction to deal with the case, and, if necessary, whether the Application is admissible, and such objections as are raised by the Respondent may be useful to clarify the legal situation. As matters now stand, the preliminary objections presented by Yugoslavia have served that purpose. Having established its jurisdiction under Article IX of the Genocide Convention, and having concluded that the Application is admissible, the Court may now proceed to consider the merits of the case on that basis.

*** [p 623]

47. For these reasons,

THE COURT,

(1) Having taken note of the withdrawal of the fourth preliminary objection raised by the Federal Republic of Yugoslavia,


Rejects

(a) by fourteen votes to one,

the first, second and third preliminary objections;


IN FAVOUR:

President Bedjaoui; Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Koroma, Vereshchetin, Ferrari Bravo, Parra-Aranguren; Judge ad hoc Lauterpacht;

AGAINST:

Judge ad hoc KreCa;


(b) by eleven votes to four,

the fifth preliminary objection;


IN FAVOUR:

President Bedjaoui; Vice-President Schwebel; Judges Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Koroma, Ferrari Bravo, Parra-Aranguren; Judge ad hoc Lauterpacht;

AGAINST:

Judges Oda, Shi, Vereshchetin; Judge ad hoc KreCa;


(c) by fourteen votes to one,

the sixth and seventh preliminary objections;


IN FAVOUR:

President Bedjaoui; Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Koroma, Vereshchetin, Ferrari Bravo, Parra-Aranguren; Judge ad hoc Lauterpacht;

AGAINST:


Judge ad hoc KreCa;


(2) (a) by thirteen votes to two,

Finds that, on the basis of Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, it has jurisdiction to adjudicate upon the dispute;


IN FAVOUR:

President Bedjaoui; Vice-President Schwebel; Judges Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Koroma, Vereshchetin, Ferrari Bravo, Parra-Aranguren; Judge ad hoc Lauterpacht;

AGAINST:

Judge Oda; Judge ad hoc KreCa;


(b) By fourteen votes to one,

Dismisses the additional bases of jurisdiction invoked by the Republic of Bosnia-Herzegovina;


IN FAVOUR:

President Bedjaoui; Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Koroma, Vereshchetin, Ferrari Bravo, Parra-Aranguren; Judge ad hoc KreCa;

AGAINST:

Judge ad hoc Lauterpacht; [p 624]


(3) By thirteen votes to two,

Finds that the Application filed by the Republic of Bosnia-Herzegovina on 20 March 1993 is admissible.


IN FAVOUR:

President Bedjaoui; Vice-President Schwebel; Judges Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Koroma, Vereshchetin, Ferrari Bravo, Parra-Aranguren; Judge ad hoc Lauterpacht;

AGAINST:

Judge Oda; Judge ad hoc KreCa.


Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this eleventh day of July, one thousand nine hundred and ninety-six, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Republic of Bosnia-Herzegovina and the Government of the Federal Republic of Yugoslavia, respectively.

(Signed) Mohammed BEDJAOUI,
President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.

Judge ODA appends a declaration to the Judgment of the Court; Judges SHI and VERESHCHETIN append a joint declaration to the Judgment of the Court; Judge ad hoc LAUTERPACHT appends a declaration to the Judgment of the Court.

Judges SHAHABUDDEEN, WEERAMANTRY and PARRA-ARANGUREN append separate opinions to the Judgment of the Court.

Judge ad hoc KRECA appends a dissenting opinion to the Judgment of the Court.

(Initialled) M.B.

(Initialled) E.V.O. [p 625]


Declaration of judge Oda

1. I feel some disquiet at being dissociated from the great majority of the Court, particularly in view of my abhorrence of the appalling events which took place in Bosnia and Herzegovina in 1992-1993. It is, however, as a matter of legal conscience that I present my position that the Court should dismiss the Application filed by Bosnia and Herzegovina on 20 March 1993.

The main reason for my negative vote is my conviction that the Court lacks jurisdiction ratione materiae, as the Applicant, in its Application, did not assert the existence of a dispute with the Respondent under the Genocide Convention which could have led to the Court being seised of the present case.

*

2. Bosnia and Herzegovina, which relies upon Article IX of the Genocide Convention as a basis for the Court's jurisdiction, has requested the Court to adjudge and declare principally that Yugoslavia (Serbia and Montenegro (hereinafter called "Yugoslavia")) has breached its legal obligations towards Bosnia and Herzegovina under the Genocide Convention, that Yugoslavia must immediately desist from its breaches of these obligations, and that Yugoslavia has to make reparation for the damages to persons and property and to the Bosnian economy and envi-ronment that have been caused by its violations of international law.

In my view, however, Bosnia and Herzegovina, in its Application, has not given any indication of opposing views regarding the application or interpretation of the Genocide Convention which may have existed at the time of filing of the Application, which alone can enable the Court to find that there is a dispute with Yugoslavia under that Convention.

3. If any dispute were to be unilaterally submitted to the Court by one of the Contracting Parties to a treaty pursuant to the compro-missory clause of that treaty, this would mean in essence that the dispute had arisen because of (i) the alleged failure of another Contracting Party to fulfil the obligations imposed by that treaty — a failure for which it is responsible — and (ii) the infringement of the rights bestowed upon the former State by that treaty due to that failure. The failure of the other State is itself a violation of the treaty but such a violation alone cannot be interpreted as constituting a dispute between the applicant State and the respondent State relating to that treaty unless it can [p 626] be shown to have infringed such rights of the former State as are protected thereby.

*

4. The Genocide Convention is unique in having been adopted by the General Assembly in 1948 at a time when — due to the success of the Nuremberg Trials — the idea prevailed that an international criminal tribunal should be established for the punishment of criminal acts directed against human rights, including genocide; it is essentially directed not to the rights and obligations of States but to the protection of rights of individuals and groups of persons which have become recognized as universal.
To be sure, the Contracting Parties to the Convention defined genocide as "a crime under international law" (Art. I). The Convention binds the Contracting Parties to punish persons responsible for those acts, whoever they may be, and is thus directed to the punishment of persons committing genocide and genocidal acts (Art. IV). The Contracting Parties undertake "to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention" (Art. V).

As persons committing genocide or genocidal acts may possibly be "constitutionally responsible rulers [or] public officials" (Art. IV), the Convention contains a specific provision which allows "[a]ny Contracting Party [to] call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of [those acts]" (Art. VIII) and contemplates the establishment of an international penal tribunal (Art. VI).

Genocide is defined as "a crime under international law which [the Contracting Parties] undertake to prevent and to punish" (Art. I). Even if this general clause (which was subjected to criticism at the Sixth Committee in 1948 when it was felt by some delegates that it should have been placed in the preamble, but not in the main text) is to be interpreted as meaning specifically that the Contracting Parties are obliged "to prevent and to punish" genocide or genocidal acts, these legal obligations are borne in a general manner erga omnes by the Contracting Parties in their relations with all the other Contracting Parties to the Convention — or, even, with the international community as a whole — but are not obligations in relation to any specific and particular signatory Contracting Party.

The failure of any Contracting Party "to prevent and to punish" such a crime may only be rectified and remedied through (i) resort to a competent organ of the United Nations (Art. VIII) or (ii) resort to an international penal tribunal (Art. VI), but not by invoking the responsibility of States in inter-State relations before the International Court of Justice. This constitutes a unique character of the Convention which was pro-[p 627]duced in the post-war period in parallel with the emergence of the concept of the protection of human rights and humanity.

5. In this regard, some explanation of the dispute settlement provision of the Convention (Art. IX) may be pertinent. It reads as follows:

"Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute"

and is unique as compared with the compromissory clauses found in other multilateral treaties which provide for submission to the International Court of Justice of such disputes between the Contracting Parties as relate to the interpretation or application of the treaties in question.

The construction of Article IX of the Genocide Convention is very uncertain as it incorporates specific references to "[d]isputes . . . relating to . . . fulfilment of the Convention" and to "disputes relating to the responsibility of a State for genocide or [genocidal acts]" — references which can hardly be understood in any meaningful sense as a compromissory clause.

The original draft of the Genocide Convention was drawn up by an Ad Hoc Committee on Genocide in the ECOSOC in April-May 1948, and contained an orthodox type of compromissory clause (Official Records of the Economic and Social Council, Third Year, Seventh Session, Supplement No. 6), which read:

"Disputes between the High Contracting Parties relating to the interpretation or application of this Convention shall be submitted to the International Court of Justice, provided that no dispute shall be submitted to the International Court of Justice involving an issue which has been referred to and is pending before or has been passed upon by a competent international criminal tribunal." (Emphasis added.)

When this draft was taken up by the Sixth Committee of the General Assembly in its Third Session in October 1948, the addition of the two aforementioned references was proposed (Official Records of the General Assembly, Third Session, Sixth Committee, Annexes, p. 28: A/C6/258) without, in my view, the drafters having a clear picture of the new type of convention to be adopted. While some delegates understood that "fulfilment" would not be different from "application", a proposal to delete "fulfilment" from the additions was rejected by 27 votes to 10, with 8 abstentions. However, another deletion of the words "including [disputes] relating to the responsibility of a State for genocide or [genocidal [p 628] acts]" was also rejected but only by 19 votes to 17, with 9 abstentions (Official Records of the General Assembly, Third Session, Sixth Committee, SR. 104, p. 447). The travaux préparatoires of the Convention seem to confirm that there was some measure of confusion among the drafters, reflecting in particular the unique nature of their task in the prevailing spirit of the times.

How can one then interpret this reference to the "responsibility of a State"? As far as I know such a reference has never been employed in any other treaty thereafter. It seems to be quite natural to assume that that reference would not have had any meaningful sense or otherwise would not have added anything to the clause providing for the submission to the Court of disputes relating to the interpretation or application of the Convention, because, in general, any inter-State dispute covered by a treaty per se always relates to the responsibility of a State and the singling-out of a reference to the responsibility of a State does not have any sense with regard to a compromissory clause.

*
6. In order to seise the Court of the present case, Bosnia and Herzegovina would certainly have had to show that applying the Genocide Convention to the situation in the area of the former Yugoslavia, Yugoslavia could indeed have been responsible for the failure of the fulfilment of the Convention in relation to Bosnia and Herzegovina. But, more particularly, Bosnia and Herzegovina would have to show that Yugoslavia has breached the rights of Bosnia and Herzegovina as a Contracting Party (which by definition is a State) that should have been protected under the Convention. This, however, has not been shown in the Application and in fact the Convention is not intended to protect the rights of Bosnia and Herzegovina as a State. Yugoslavia might have been responsible for certain instances of genocide or genocidal acts committed by its public officials or surrogates in the territory of Bosnia and Herzegovina, but this fact alone does not mean that there is a "dispute" between the States relating to the responsibility of a State, as Yugoslavia did not violate the rights bestowed upon Bosnia and Herzegovina by the Convention. I would like to repeat and to emphasize that what should be protected by the Convention is not the particular rights of any individual State (Bosnia and Herzegovina in this case) but the status of human beings with human rights and the universal interest of the individual in general.

7. What Bosnia and Herzegovina did in its Application was to point to certain facts tantamount to genocide or genocidal acts which had allegedly been committed within its territory by the Government of Yugoslavia or by its agents or surrogates, and to submit claims alleged to have arisen out of these acts. This cannot be taken to indicate the [p 629] existence of an inter-State dispute relating to the responsibility of a State which could have been made a basis for the Court's jurisdiction.

Bosnia and Herzegovina certainly might have claimed "reparations for any damages to persons and property as well as to the Bosnian economy and environment caused by the . . . violations of international law" (Application, para. 135 (r)) — not under the Genocide Convention but only as a general issue of international law. (Bosnia and Herzegovina states that the claims to reparation for damages have been caused by the violations of international law, not by the Genocide Convention.) If this is the case, whether the present Court has jurisdiction over such claims under the Genocide Convention is quite a different problem and is irrelevant to the present case.

8. After all, Bosnia and Herzegovina does not appear to allege that it has a dispute with Yugoslavia relating to the interpretation or application of the Genocide Convention, although only such a dispute — and not the commission of genocide or genocidal acts which certainly are categorized as a crime under international law — can constitute a basis of the Court's jurisdiction under the Convention.

*

9. Looking at the new concept of genocide emerging with the Second World War and the corresponding preparation of the Genocide Convention — a new type of treaty to deal with the rights of individuals as a whole, but not with the rights and obligations in the inter-State relations — I question whether the International Court of Justice is the appropriate forum for the airing of the questions relating to genocide or genocidal acts which Bosnia and Herzegovina has raised in the current proceedings. I am inclined to doubt whether international law, the Court, or the wel-fare of the unfortunate individuals concerned will actually benefit from the consideration of cases of this nature by the Court.

The establishment of an international penal tribunal as contemplated in the Convention is now, after half a century, about to be put into effect by the United Nations General Assembly thanks to the work of the International Law Commission. In addition, one month before the Application of Bosnia and Herzegovina in this case, it was decided on 22 February 1993 by Security Council resolution 808 (1993), that the International Criminal Tribunal for the Former Yugoslavia would be established "for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991" and that Tribunal established on 25 May 1993 pursuant to Security Council resolution 827 (1993) is presently in operation.

10. I would like to add one thing and that is that the Court should maintain a very strict position in connection with its jurisdiction. The [p 630] consensus of the sovereign States in dispute essentially constitutes the basis of that jurisdiction. Were we ever to relax the basic conditions, I would expect to see a flood of cases pouring into this judicial institution, the task of which is mainly the settlement of international disputes. Genocide is precisely the sort of issue that should be settled by any other appropriate organ of the United Nations as suggested in Article VIII of the Convention, or by the international penal tribunal under Article VI. This is, as I repeat, the main idea of the Genocide Convention.

I admit that the extremely vague and uncertain provision of Article IX of the Genocide Convention may leave room for the Court to allow itself to be seised of the present case, but consider that such a conclusion would be based on a misinterpretation of the real spirit of the Genocide Convention. Moreover, note should be taken in parallel of the repeated resolutions taken by the Security Council or the statements made by the President of the Security Council concerning Yugoslavia (which were made prior to the Dayton-Paris Agreement) and the current work of the International Criminal Tribunal for the Former Yugoslavia for the determination of criminal responsibility.

11. Finally, I would like to add that my vote against the decision on the jurisdiction of the Court does not in any way prejudge the position I may take during the merits phase with regard to my legal evaluation concerning the allegations of genocide committed in the former Yugoslavia which are covered by the Application of Bosnia and Herzegovina of 20 March 1993.

(Signed) Shigeru Oda. [p 631]


Joint declaration of judges Shi and Vereshchetin

We have voted in favour of paragraphs 1 (a), (c), 2 and 3 of the dispositif because we are persuaded that Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide affords an arguable legal basis for the Court's jurisdiction in this case. However, we regret that we were unable to vote for paragraph 1 (b) as we are disquieted by the statement of the Court, in paragraph 32 of the Judgment, that Article IX of the Genocide Convention "does not exclude any form of State responsibility". It is this disquiet that we wish briefly to explain.

The Convention on Genocide is essentially and primarily directed towards the punishment of persons committing genocide or genocidal acts and the prevention of the commission of such crimes by individuals. The travaux préparatoires show that it was during the last stage of the elaboration of the Convention that, by a very slim majority of 19 votes to 17 with 9 abstentions, the provision relating to the responsibility of States for genocide or genocidal acts was included in the dispute settlement clause of Article IX, without the concurrent introduction of necessary modifications into other articles of the Convention. As can be seen from the authoritative commentary to the Convention, published immediately after its adoption, "there were many doubts as to the actual meaning" of the reference to the responsibility of States (Nehemiah Robinson, The Genocide Convention. Its Origin and Interpretation, 1949, p. 42). As to the creation of a separate civil remedy applicable as between States, the same author observes that "since the Convention does not specifically refer to reparation, the parties to it did not undertake to have accepted the Court's compulsory jurisdiction in this question" (ibid., p. 43).

In substance, the Convention remains an instrument relating to the criminal responsibility of individuals. The Parties undertake to punish persons committing genocide, "whether they are constitutionally responsible rulers, public officials or private individuals", and to enact the necessary legislation to this effect (Arts. IV and V). Persons charged with genocide or genocidal acts are to be tried "by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction . . ." (Art. VI). Such a tribunal was established (after the filing of the Application) specifically for the prosecution of persons responsible for serious violations of humanitarian law committed in the territory of the former Yugoslavia since 1991. [p 632]

The determination of the international community to bring individual perpetrators of genocidal acts to justice, irrespective of their ethnicity or the position they occupy, points to the most appropriate course of action. We share the view expressed by Britain's Chief Prosecutor at Nuremberg, Hartley Shawcross, in a recent article in which he declared that

"There can be no reconciliation unless individual guilt for the appalling crimes of the last few years replaces the pernicious theory of collective guilt on which so much racial hatred hangs." (International Herald Tribune, 23 May 1996, p. 8.)

Therefore, in our view, it might be argued that this Court is perhaps not the proper venue for the adjudication of the complaints which the Applicant has raised in the current proceedings.
While we consider that Article IX of the Genocide Convention, to which both the Applicant and the Respondent are parties, affords a basis for the jurisdiction of the Court to the extent that the subject-matter of the dispute relates to "the interpretation, application or fulfilment" of the Convention, and having, for this reason, voted for this Judgment, we nevertheless find ourselves obliged to express our concern over the above-mentioned substantial elements of this case.

(Signed) SHI Jiyuong.

(Signed) Vladlen S. Vereshchetin. [p 633]



Declaration of judge Lauterpacht

I respectfully concur in operative paragraphs 1, 2 (a) and 3 of the Judgment of the Court, but regret that I am unable to vote in favour of paragraph 2 (b) in so far as it reflects (as stated in paragraph 40 of the Judgment) a decision of the Court that the conduct of the Federal Republic of Yugoslavia does not "confer upon [the Court] a jurisdiction exceeding that which it has already acknowledged to have been conferred upon it by Article IX of the Genocide Convention" (emphasis added). Although the point is now at the very margins of this case, I do not wish to convey any impression of acting in a manner inconsistent with what I said on the question of forum prorogatum in paragraphs 24-37 of my separate opinion of 13 September 1993 relating to the Further Requests for the Indication of Provisional Measures (I.C.J. Reports 1993, p. 325, pp. 416-442).

(Signed) Elihu Lauterpacht. [p 634]


Separate opinion of judge Shahabuddeen

I would like to explain my support for the judgment of the Court on two points, namely, treaty succession and forum prorogatum.

Treaty Succession

The course taken by the Court in its judgment makes it unnecessary to consider whether Bosnia and Herzegovina was a party to the Genocide Convention as from the date of its independence. However, as this point was closely argued and is the subject of some attention, I propose to say a word on it.

I think that the more general arguments as to succession to treaties may be put aside in favour of an approach based on the special characteristics of the Genocide Convention. In the case of the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, the Court likewise considered that the "solution of [the] problems" which arose there "must be found in the special characteristics of the Genocide Convention" (I.C.J. Reports 1951, p. 23). The fact that the Genocide Convention provided for the possibility of cessation or denunciation did not affect its special character as found by the Court. It observed:

"The origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as 'a crime under international law' involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations (Resolution 96 (I) of the General Assembly, December 11th, 1946). The first consequence arising from this conception is that the prin-ciples underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation. A second consequence is the universal character both of the condemnation of genocide and of the co-operation required 'in order to liberate mankind from such an odious scourge' (Preamble to the Convention). The Genocide Convention was therefore intended by the General Assembly and by the contracting parties to be definitely universal in scope." (Ibid.)

Thus, the universality of the Convention attached both to the principles underlying the Convention and to "the co-operation required 'in [p 635] order to liberate mankind from such an odious scourge'". Obviously, universality as regards co-operation could not be achieved without universality of participation. The Court recognized this when it noted "the clearly universal character of the United Nations under whose auspices the Convention was concluded, and the very wide degree of participation envisaged by Article XI of the Convention" (I.C.J. Reports 1951, p. 21). In a famous passage, it said:

"The objects of such a convention must also be considered. The Convention was manifestly adopted for a purely humanitarian and civilizing purpose. It is indeed difficult to imagine a convention that might have this dual character to a greater degree, since its object on the one hand is to safeguard the very existence of certain human groups and on the other to confirm and endorse the most elementary principles of morality. In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d'etre of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties. The high ideals which inspired the Convention provide, by virtue of the common will of the parties, the foundation and measure of all its provisions." (Ibid., p. 23.)

It added:

"The object and purpose of the Genocide Convention imply that it was the intention of the General Assembly and of the States which adopted it that as many States as possible should participate." (Ibid., p. 24.)

If the arguments of Yugoslavia are correct, they lead in one way or another, so far as a successor State such as Bosnia and Herzegovina is concerned, to the introduction of an inescapable time-gap in the protection which the Genocide Convention previously afforded to all of the "human groups" comprised in the former Socialist Federal Republic of Yugoslavia. There could be many long and single days during such a time-gap when, for all practical purposes, that protection is no longer heard of. It is difficult to appreciate how the inevitability of such a break in protection could be consistent with a Convention the object of which was "on the one hand ... to safeguard the very existence of certain human groups and on the other to confirm and endorse the most elementary principles of morality".

I think that the object and purpose of the Genocide Convention required parties to observe it in such a way as to avoid the creation of such a break in the protection which it afforded. The Convention could not be read as meaning that a party, which was bound under the Convention to apply its jurisdictional provisions for the protection of the "human [p 636] groups" inhabiting a given area, was allowed to regard itself as liberated from those provisions in relation to a successor State by reason of the fact that that particular area was now comprised within the territory of the successor State; such a party would continue to be bound by those provisions in relation to other parties in respect of the same "human groups" while being inconsistently free in relation to the successor State within whose territory breaches of the Convention are allegedly being perpetrated by it.

To effectuate its object and purpose, the Convention would fall to be construed as implying the expression of a unilateral undertaking by each party to the Convention to treat successor States as continuing as from independence any status which the predecessor State had as a party to the Convention. The necessary consensual bond is completed when the successor State decides to avail itself of the undertaking by regarding itself as a party to the treaty. It is not in dispute that, one way or another, Yugoslavia is a party to the Convention. Yugoslavia has therefore to be regarded as bound by a unilateral undertaking to treat Bosnia and Herzegovina (being a successor State) as having been a party to the Convention as from the date of its independence.
It may be said that this approach presents existing parties with problems of retroactivity and uncertainty of status of successor States in so far as the precise position taken by the latter may not emerge until some time after the dates of their independence. The answer is, I think, provided by recourse to the jurisprudence of the Court in the Right of Passage over Indian Territory case : the problems in question would be the result of the scheme of the Genocide Convention which parties to the Convention accepted when they accepted the Convention. Since Yugoslavia considers itself a party to the Convention, it is bound by the scheme. Consequently, it has to regard Bosnia and Herzegovina as a party to the Convention as from the date of its independence irrespective of possible difficulties.

The foregoing conclusion is reinforced by the following consideration. The Court would be correct in accepting the generally prevailing view that even Yugoslavia is not a continuation of the international personality of the previous Socialist Federal Republic of Yugoslavia but is a new State and therefore itself a successor State. If, as no one disputes, Yugoslavia is correct in regarding itself as having always been a party to the Convention, this by parity of reasoning applies equally to the case of Bosnia and Herzegovina.

*
Touching on the wider problem concerning State succession to human rights treaties, I am not persuaded, for present purposes, to draw too sharp a distinction between the Genocide Convention (and in particular [p 637] its jurisdictional provisions) considered as a measure intended to prevent and punish conduct detrimental to the integrity of certain "human groups" and human rights treaties stricto sensu: basically they are all concerned with the rights of the human being — in the case of the Genocide Convention, with some of the most important human rights of all. The origins of the Convention lay in "the intention of the United Nations to condemn and punish genocide as 'a crime under international law' involving a denial of the right of existence of entire human groups"; consequently, the "object" of the Convention was to "safeguard the very existence of certain human groups". That object could not be achieved unless it included the safeguarding of the right to life in certain circumstances, ultimately through the jurisdictional provisions of the Convention. One writer, not unreasonably, described the Convention as "the first human rights instrument adopted by the United Nations" (Matthew Lippman, "The Drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide", Boston University International Law Journal, 1985, Vol. 3, p. 1).

But to say that a treaty is a human rights treaty, while providing a possible foundation, does not necessarily indicate a precise juridical mechanism for treating it as being automatically succeeded to by a successor State consistently with the consensual character of treaty relationships. It is possible that such a juridical mechanism is furnished by drawing on the above-mentioned argument and proposing more generally that the effectuation of the object and purpose of such treaties, inclusive of the desideratum of avoiding operational gaps, will support a construction being placed upon them to the effect that they constitute the expression of a unilateral undertaking by existing parties to treat successor States as parties with effect from the date of emergence into independence. As suggested above, the consensual bond is completed when the successor State avails itself of the undertaking by deciding to regard itself as a party to the treaty.

This could provide an answer to the question whether there is automatic succession in the case of human rights treaties in general. However, I do not propose to express a definite opinion at this point on this complex and much disputed question. The construction referred to suffices, in my view, to answer the question in the case of the Genocide Convention in the light of the specific features of this particular instrument.

Forum Prorogatum

The Court has correctly held that, in the circumstances of the case, this doctrine does not enable jurisdiction to be founded on bases additional to that provided by Article IX of the Genocide Convention. As to jurisdiction under that provision, I agree with the Court in taking the position, [p 638] as I think it has, that the question of the applicability of the doctrine need not be considered. Counsel for Bosnia and Herzegovina submitted — rightly, I think — that the question which arose in the case of that provision was not one of forum prorogatum, but one as to whether Yugoslavia had acquiesced in the view that that provision was applicable. There is a distinction between acceptance of the jurisdiction provided for by the jurisdictional provision of a treaty on the basis that the provision itself does not apply and acceptance of the proposition that the jurisdictional provision itself applies. In the first case, the acceptance is the only basis of jurisdiction; in the second case, it is not, being merely an admission that the treaty applies. The latter is how I understood the position taken by counsel for Bosnia and Herzegovina (see CR96/8, pp. 75-76, 79-80, 81-82, and CR 96/11, p. 52).

Moreover, I agree with what I understood to be also the position taken by counsel for Bosnia and Herzegovina, that is to say, that the doctrine of forum prorogatum does not come into play where the same jurisdiction exists under an applicable title of jurisdiction; ex hypothesi, the doctrine may be imported only where the jurisdiction in question does not otherwise exist (CR96/8, p. 82). In this case, the Court having found that Article IX of the Genocide Convention applies as a treaty provision between the parties, there is neither need nor basis for having recourse to the doctrine in question in order to attract the jurisdiction provided for under that provision.

The positions so taken by counsel for Bosnia and Herzegovina accord with the fact that, in paragraph 34 of its Order of 13 September 1993, the Court did not understand that a question of forum prorogatum had been raised in respect of Article IX of the Convention; that understanding is retained in paragraph 40 of today's Judgment. The Court's understanding is consistent with the course of the arguments during both of the two previous phases of the case, namely, those of 1-2 April 1993 and those of 25-26 August 1993. (For the stage at which — towards the end of the second phase of the case — and for the circumstances in which the question of forum prorogatum was first raised, see I.C.J. Reports 1993, pp. 416-420, separate opinion of Judge ad hoc Lauterpacht.)

By way of comparison, it may be observed that in the Corfu Channel case the plea of forum prorogatum was raised, without loss of time, by the United Kingdom both in its written observations and in its oral arguments (see I.C.J. Reports 1947-1948, pp. 26ff.; and I.C.J. Pleadings, Corfu Channel, Vol. II, pp. 15-18, particularly para. 9 (g) at p. 18, and Vol. III, pp. 36, 56 ff., 66 and 69). In the case of the Anglo-Iranian Oil Co., the initiative was likewise taken, and taken immediately, by the United Kingdom, even though its contentions were not upheld (see I. C.J. Reports 1952, pp. 112-114, and I.C.J. Pleadings, Anglo-Iranian Oil Co., pp. 517-518, 540, 544, 553-556, 594, 626, 630 ff.). Immediacy of response is important in appraising the understanding of the parties; forum pro-[p 639]rogatum rests ultimately on the same consensual foundations which underpin the jurisdiction of the Court.

These considerations support what I believe to be the position taken by the Court, that is to say, that Bosnia and Herzegovina is not relying — and correctly, I think — on forum prorogatum in relation to Article IX of the Genocide Convention.

(Signed) Mohamed Shahabuddeen. [p 640]


Separate opinion of judge Weeramantry

Table of contents

 

 

Page

 

 

The Issue of Automatic Succession to the Genocide Convention

641

 

 

Theories Relating to State Succession

641

 

 

The "Clean Slate" Principle

643

 

 

(a) Historical antecedents of the clean slate principle

643

(b) Theoretical bases of the clean slate principle

644

(c) Necessary exceptions to the clean slate principle

645

 

 

Reasons Favouring View of Automatic Succession to the Genocide Convention

645

 

 

1. It is not centred on individual State interests

645

2. It transcends concepts of State sovereignty

646

3. The rights it recognizes impose no burden on the State

647

4. The obligations imposed by the Convention exist independently of conventional obligations

647

5. It embodies rules of customary international law

648

6. It is a contribution to global stability

648

7. The undesirability of a hiatus in succession to the Genocide Con­vention

649

8. The special importance of human rights guarantees against geno­cide during periods of transition

650

9. The beneficiaries of the Genocide Convention are not third par­ties in the sense which attracts the res inter alios acta principle

651

10. The rights conferred by the Convention are non-derogable

651

 

 

International Pressure for Recognition of the Principle of Auto­matic Succession

653





[p 641]
The Issue of Automatic Succession to the Genocide Convention

I agree with the majority of my colleagues that the Court does have jurisdiction in this case. However, this case raises the important issue of automatic succession to the Genocide Convention, which has not been developed in the Court's Judgment. I believe it warrants consideration.

One of the principal concerns of the contemporary international legal system is the protection of the human rights and dignity of every individual. The question of succession to the Genocide Convention raises one of the most essential aspects of such protection.

The topic which I wish to address in this opinion is the continuing applicability of the Convention to the populations to which it has applied. When a convention so significant for the protection of human life has been entered into by a State, and that State thereafter divides into two or more successor States, what is the position of its subjects in the interim period that elapses before the formal recognition of the successor States, or before the new State's formal accession to treaties such as the Genocide Convention? I think this situation should not be passed by without attention, especially having regard to the fact that the foundations for a consideration of this matter are to be found in the Court's Opinion in the earlier case on genocide which came before it over forty years ago (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 15).

Another reason calling for attention to this topic is the fact that the international community is passing through a historical period, when, throughout the world, the phenomenon is being experienced of the splintering of States. This has occurred with particular intensity especially after the end of the Cold War. It is vitally important that the principle of protection of populations against human rights abuses and atrocities should be strengthened in every manner available under current legal principles; and the clarification of the law relating to State succession to a humanitarian treaty so important as the Genocide Convention is eminently such an area.

Bosnia has contended that there is automatic succession to this treaty, and Yugoslavia denies this proposition. This problem leads into the intricate field of State succession to treaties — a field in which there has been much difference of juristic opinion, and in which many competing theories strive for recognition.

Theories Relating to State Succession

State succession is one of the oldest problems of international law. As Oscar Schachter reminds us, this problem goes all the way back [p 642] to Aristotle who, in his Politics, gave his mind to the question of continuity when "the State is no longer the same"FN1.

---------------------------------------------------------------------------------------------------------------------
FN1 Oscar Schachter, "State Succession: The Once and Future Law", Virginia Journal of International Law, 1992-1993, Vol. 33, p. 253, citing Aristotle, The Politics, Book III, Chap. 1. While analysing the constituent elements of a State — territory, government and population — Aristotle refers, inter alia, to the question of the continuity of contractual obligations after a change in the State.
---------------------------------------------------------------------------------------------------------------------

On this problem, the views of jurists have varied between the two poles of universal succession (these were among the earliest theories, taking their conceptual position largely from the analogy of the Roman law of testamentary succession, involving a total succession to the deceased), and of total negativism, involving a complete denial of succession (based upon the conceptual analogy of a personal contract). It is not necessary for present purposes to refer to the various theories lying between these two extremes.

The circumstances of international life have demonstrated that neither of these absolutist theories is adequate to cover all situations that might arise and that any workable theory lies somewhere between these polesFN2. Quite clearly, whichever of these positions one might lean towards, some exceptions must necessarily be admitted.

---------------------------------------------------------------------------------------------------------------------
FN2 A number of studies view multilateral treaties as an exception to the clean slate principle — see Ian Brownlie, Principles of Public International Law, 4th ed., 1990, p. 670; D. P. O'Connell, State Succession in Municipal Law and International Law, 1967, Vol. II, pp. 212-219. The latest edition of Oppenheim, while observing that there is more room than with regard to treaties generally for the new State, on separation, to be considered bound by multilateral treaties of a law-making nature, singles out treaties of a humanitarian character as especially attracting this view (Oppenheim's International Law, 9th ed., Jennings and Watts (eds.), 1992, Vol. 1, s. 64, pp. 222-223). However, the definition of multilateral treaties presents a problem and, for the purposes of the present opinion, it is not necessary to enter into this field.
---------------------------------------------------------------------------------------------------------------------

The question for consideration in this case is whether, even on the basis of the negativist theory that treaties of the predecessor State are not binding, a necessary exception must exist in relation to treaties such as the Genocide Convention. Much guidance is to be had on this question from the consideration of automatic succession to human rights and humanitarian treaties in general. The discussions and literature on this matter suggest a principle of automatic succession to a large range of such treaties. This opinion does not seek to deal with all human rights and humanitarian treaties, but uses principles worked out in the context of such treaties to reach the conclusion that they apply a fortiori to the Genocide Convention which, in consequence, is a treaty to which there is automatic State succession according to the contemporary principles of international law. [p 643]

The "Clean Slate" Principle

(a) Historical Antecedents of the Clean Slate Principle

The principle that a new State ought not in general to be fettered with treaty obligations which it has not expressly agreed to assume after it has attained statehood (the clean slate principle) is of considerable historical and theoretical importance. New States ought not, in principle, to be bur-dened with treaty-based responsibilities without their express consent.

With the sudden advent into the international community of nearly eighty newly independent States in the late fifties and early sixties, there was a realization among them, in the words of Julius Stone, that:

"their authority or their territory or both are burdened with debts, concessions, commercial engagements of various kinds or other obligations continuing on from the earlier colonial regime . . ."FN3.

------------------------------------------------------------------------------------------------------------
FN3 Julius Stone, "A Common Law for Mankind?", International Studies, 1960, Vol. 1, pp. 430-431. See also E. G. Bello, "Reflections on Succession of States in the Light of the Vienna Convention on Succession of States in Respect of Treaties 1978", German Year-book of International Law, 1980, Vol. 23, p. 298; D. P. O'Connell, State Succession, op. cit., p. 116.
------------------------------------------------------------------------------------------------------------

For example, in Nigeria, 300 treaties negotiated by Britain were said to be applicable to the countryFN4.

---------------------------------------------------------------------------------------------------------------------
FN4 By exchange of letters between the Prime Minister and the United Kingdom High Commission on the very day of independence, the Federation assumed all rights and obligations entered into "on their behalf before independence, and undertook to keep such agreements in force until the Government of Nigeria could consider whether they required modification or renegotiation in any respect (E. G. Bello, op. cit., p. 298).
---------------------------------------------------------------------------------------------------------------------

Other newly emerging countries soon became conscious of the dangers to their autonomy involved in this principle, and what came to be known as the Nyerere Doctrine emerged under which none of the colonial treaties became applicable unless the new State, within a specified period of time, notified its accession to such treatiesFN5. In the language of Jenks, in relation to State succession to colonial treaties, "The psychology of newly won independence is a formidable reality."FN6

---------------------------------------------------------------------------------------------------------------------
FN5 Ibid.,-pp. 298-299.
FN6 C. Wilfred Jenks, "State Succession in Respect of Law-Making Treaties", British Year Book of International Law, 1952, Vol. 29, p. 108.
---------------------------------------------------------------------------------------------------------------------

This was not, however, the only historical reality that favoured the clean slate theory. There were numerous older precedents, of which a few illustrative examples may be mentioned. Following the Franco-Prussian war and the transfer of Alsace-Lorraine, French treaties applicable to the
[p 644] provinces had, in generalFN7, to cease to have effect and be replaced by German treaties. Again, British jurists, facing the problem of annexation of colonial territories, tended towards the view that "the treaties of the expunged legal person died with it"FN8, so that they received those colonies free of the burden of prior treaties. At the United Nations Conference on Succession of States in Respect of TreatiesFN9, several other examples were referred to, among them the situation resulting from the termination of the Austro-Hungarian Empire, when Czechoslovakia and Poland emerged as independent States with a clean slate in regard to treaties of the former Austro-Hungarian Empire, except for certain multilateral treatiesFN10.

---------------------------------------------------------------------------------------------------------------------
FN7 An exception was, however, in regard to ecclesiastical law, where Napoleon's Concordat with the Holy See continued to apply.
FN8 D. P. O'Connell, "Reflections on the State Succession Convention", Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 1979, Vol. 39, p. 735.
FN9 Vienna, 4 April-6 May 1977, and 31 July-23 August 1978.
FN10 Official Records, Vol. III, p. 92, para. 14.
---------------------------------------------------------------------------------------------------------------------

The clean slate theory was thus the result of many historical trendsFN11, and had received favour at one time or another from both emerging and established nations.

---------------------------------------------------------------------------------------------------------------------
FN11 O'Connell, "Reflections on the State Succession Convention", op. cit., p. 735.
---------------------------------------------------------------------------------------------------------------------

(b) Theoretical Bases of the Clean Slate Principle

Theoretically, the clean slate principle can be justified on several powerful bases — the principle of individual State autonomy, the principle of self-determination, the principle of res inter alios acta, and the principle that there can be no limitations on a State's rights, except with its consent. Newly independent States should not have to accept as a fait accompli the contracts of predecessor States, for it is self-evident that the new State must be free to make its own decisions on such matters.

The clean slate principle could also be described as an important corollary to the principle of self-determination, which is of cardinal importance in modern international law. The principle of self-determination could be emptied of an important part of its content if prior treaties automatically bind the new State.

One of the bases of the negativist view is that treaties entered into by the predecessor State are res inter alios acta. Castren, dealing specially with the case of division of a pre-existing State into new States, observes:

"When a State is dismembered into new independent States, its treaties as a rule become null and void without descending to the new States. Treaties are generally personal in so far as they presuppose, in addition to the territory, also the existence of a certain [p 645] sovereign over the territory. To the succeeding State, the treaties concluded by the former State are res inter alios acta."FN12

------------------------------------------------------------------------------------------------------------
FN12 E. Castren, "Obligations of States Arising from the Dismemberment of Another State", Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 1950-1951, Vol. 13, p. 754 (emphasis added); cited by M. G. Maloney in Virginia Journal of International Law, 1979-1980, Vol. 19, p. 892.
------------------------------------------------------------------------------------------------------------

Basic concepts of State sovereignty also require that any curtailment of the sovereign authority of a State requires the express consent of the State.

If there is to be, in a given case, a deviation from the clean slate principle, sufficiently cogent reasons should exist to demonstrate that the new State's sovereignty is not being thereby impaired. The question needs therefore to be examined as to whether there is any impairment of State sovereignty implicit in the application of the principle of automatic succession to any given treaty.

(c) Necessary Exceptions to the Clean Slate Principle

Human rights and humanitarian treaties involve no loss of sovereignty or autonomy of the new State, but are merely in line with general principles of protection that flow from the inherent dignity of every human being which is the very foundation of the United Nations Charter.

At the same time, it is important that the circle of exceptions should not be too widely drawn. Conceivably some human rights treaties may involve economic burdens, such as treaties at the economic end of the spectrum of human rights. It is beyond the scope of this opinion to examine whether all human rights and humanitarian treaties should be exempted from the clean slate principle. It is sufficient for the purposes of this opinion to note a variety of reasons why it has been contended that human rights and humanitarian treaties in general attract the principle of automatic succession. These reasons apply with special force to treaties such as the Genocide Convention or the Convention against Torture, leaving no room for doubt regarding automatic succession to such treaties. The international community has a special interest in the continuity of such treaties.

Reasons Favouring View of Automatic Succession to the Genocide Convention

1. It Is Not Centred on Individual State Interests

This Court, in its earlier consideration of the Genocide Convention, drew pointed attention to the difference between a humanitarian treaty [p 646] such as the Genocide Convention, and a convention aimed at protecting the interests of a State. The Court stated in its Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide that:

"In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d'etre of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties." (I.C.J. Reports 1951, p. 23.)

Charles De Visscher has remarked on the contrast

"between the frailty of agreements of merely individual interest, dependent as these are upon transitory political relations, and the relative stability of conventions dictated by concern for order or respect for law"FN13.

------------------------------------------------------------------------------------------------------------
FN13 Theory and Reality in Public International Law, revised ed., 1968, translated from the French by P. E. Corbett, p. 179.
------------------------------------------------------------------------------------------------------------

He has also remarked in this context that the growing part played by multilateral treaties in the development of international law should count in favour of the transmission rather than disappearance of the obligations they createFN14.

---------------------------------------------------------------------------------------------------------------------
FN14 Ibid.
---------------------------------------------------------------------------------------------------------------------

Human rights and humanitarian treaties do not represent an exchange of interests and benefits between contracting States in the conventional sense, and in this respect may also be distinguished from the generality of multilateral treaties, many of which are concerned with the economic, security or other interests of States. Human rights and humanitarian treaties represent, rather, a commitment of the participating States to certain norms and values recognized by the international community.

Stated another way, the personality of the sovereign is not the essence of such an agreement. Multilateral treaties are most often concluded with the object of protecting and benefiting the international community as a whole, and for the maintenance of world order and co-operation, rather than of protecting and advancing one particular State's interests.

2. It Transcends Concepts of State Sovereignty

The Genocide Convention does not come to an end with the dismemberment of the original State, as it transcends the concept of State sovereignty. An important conceptual basis denying continuity to treaties is that the recognition of the continuity of the predecessor State's treaties would be an intrusion upon the sovereignty of the successor State. This [p 647] would be so if it were a matter confined within the ambit of a State's sovereignty. But with human rights and humanitarian treaties, we are in a sphere which reaches far beyond the narrow confines of State sovereignty, and enters the domain of universal concern.

In its ongoing development, the concept of human rights has long passed the stage when it was a narrow parochial concern between sovereign and subject. We have reached the stage, today, at which the human rights of anyone, anywhere, are the concern of everyone, everywhere. The world's most powerful States are bound to recognize them, equally with the weakest, and there is not even the semblance of a suggestion in contemporary international law that such obligations amount to a derogation of sovereignty.

3. The Rights It Recognizes Impose No Burden on the State

Moreover, a State, in becoming party to the Convention, does not give away any of its rights to its subjects. It does not burden itself with any new liability. It merely confirms its subjects in the enjoyment of those rights which are theirs by virtue of their humanity. Human rights are never a gift from the State and hence the State, in recognizing them, is not imposing any burden upon itself. We have long passed the historical stage when a sovereign, granting to his subjects what we would today call a human right, could claim their gratitude for surrendering to them what was then considered to be a part of his absolute and undoubted rights as a sovereign. Human rights treaties are no more than a formal recognition by the sovereign of rights which already belong to each of that sovereign's subjects. Far from being largesse extended to them by their sovereign, they represent the entitlement to which they were born.

Quite contrary to the view that human rights treaties are a burden on the new State, it could indeed be asserted that the adherence by a new State to a system which is universally accepted, whereby the new State becomes part of that system, is indeed a benefit to the new State, in sharp contrast to the position of disadvantage in which it would place itself if it stood outside that system.

4. The Obligations Imposed by the Convention Exist Independently of Conventional Obligations

This Court observed in Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, "the principles underlying the [Genocide] Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obliga-tion" (I.C.J. Reports 1951, p. 23). The same may be said of all treaties concerning basic human rights. [p 648]

The Court referred also in the same Opinion to the universal character of the condemnation of genocide. This condemnation has its roots in the convictions of humanity, of which the legal rule is only a reflection. The same could likewise be said of many of the basic principles of human rights and humanitarian law.

5. It Embodies Rules of Customary International Law

The human rights and humanitarian principles contained in the Genocide Convention are principles of customary international law. These principles continue to be applicable to both sovereign and subjects, irrespective of changes in sovereignty, for the new sovereign, equally with the old, is subject to customary international law. The customary rights which the subjects of that State enjoy continue to be enjoyed by them, whoever may be their sovereign. The correlative duties attach to the sovereign, whoever he may be. The position is no different when those customary rights are also embodied in a treaty.

This factor may indeed be seen in wider context as essential to the evolution of international law into a universal system. Among writers who have stressed this aspect in relation to multilateral treaties are Wilfred Jenks, who observed:

"It is generally admitted that a new State is bound by existing rules of customary international law. This principle has, indeed, been of fundamental importance in the development of international law into a world-wide system ... It is not clear why, now that the rules established by multipartite legislative instruments constitute so large a part of the operative law of nations, a new State should be regarded as starting with a clean slate in respect of rules which have a conventional rather than a customary origin."FN15

-----------------------------------------------------------------------------------------------------------
FN15 W.Jenks, op.cit., p.107.
------------------------------------------------------------------------------------------------------------

In regard to such a matter as genocide, there can be no doubt that the treaty is of fundamental importance to the development of the operative law of nations.

6. It Is a Contribution to Global Stability

The strengthening of human rights protections in accordance with universally held values is a matter of universal concern and interest.

The promotion and encouragement of respect for human rights is, according to Article 1 (3) of the United Nations Charter, one of the Purposes of the United Nations, and the reaffirmation of faith in fundamental human rights and the dignity and worth of the human person are [p 649] among the foremost objects that the peoples of the United Nations set before themselves "to save succeeding generations from the scourge of war".

Genocide attacks these concepts at their very root and, by so doing, strikes at the foundations of international stability and security.

A State's guarantees of human rights to its subjects in terms of even such a Covenant as the International Covenant on Civil and Political Rights are thus a matter which does not concern that State alone, but represent a contribution to human dignity and global stability — as dis-tinguished, for example, from a commercial or trading treaty. This aspect is all the more self-evident in a treaty of the nature of the Genocide Convention.

At the United Nations Conference on State Succession on 22 April 1977, the Soviet Union drew attention to a letter by the International Committee of the Red Cross to the Chairman of the International Law Commission to the effect that no State had ever claimed to be released from any obligation under the Geneva Conventions. In this connection, the representative of the Soviet Union observed that, "Such a practice had not created difficulties for newly independent States"FN16. He also observed :

---------------------------------------------------------------------------------------------------------------------
FN16 24th meeting, 22 April 1977, Official Records, Vol. I, p. 164, para. 5.
---------------------------------------------------------------------------------------------------------------------

"Thus treaties of a universal character were of paramount importance for the whole international community, and particularly for newly independent States. It was therefore in the interests of not only newly independent States but also of the international commu-nity as a whole that a treaty of universal character should not cease to be in force when a new State attained independence."FN17

------------------------------------------------------------------------------------------------------------
FN17 Ibid., p. 163, para. 2.
------------------------------------------------------------------------------------------------------------

7. The Undesirability of a Hiatus in Succession to the Genocide Convention

If the contention is sound that there is no principle of automatic succession to human rights and humanitarian treaties, the strange situation would result of the people within a State, who enjoy the full benefit of a human rights treaty, such as the International Covenant on Civil and Political Rights, and have enjoyed it for many years, being suddenly deprived of it as though these are special privileges that can be given or withdrawn at the whim or fancy of Governments. Populations once protected cease to be protected, may be protected again, and may again cease to be protected, depending on the vagaries of political events. Such a legal position seems to be altogether untenable, especially at this stage in the development of human rights. [p 650]

Jenks observes, "It is not a matter of perpetuating the dead hand of the past, but of avoiding a legal vacuum."FN18 This vacuum could exist over "hundreds of thousands of square miles and millions of citizens . . ,"FN19. He also refers to:

---------------------------------------------------------------------------------------------------------------------
FN18Jenks, op. cit., p. 109.
FN19 Ibid.
---------------------------------------------------------------------------------------------------------------------

"the uncertainty, confusion and practical inconvenience of a legal vacuum which may be gravely prejudicial not only to the interests of other States concerned but equally to the interests of the new State itself and its citizens" FN20.

------------------------------------------------------------------------------------------------------------
FN20 Ibid.
------------------------------------------------------------------------------------------------------------

The undesirability of such a result becomes more evident still if the human rights treaty under consideration is one as fundamental as the Genocide Convention. If the principle set out earlier is not clearly recognized, the international legal system would be endorsing the curious result that people living under guarantees that genocide will not be committed against them will suddenly be deprived of that guarantee, precisely at the time they need it most — when there is instability in their State. The anomaly of a grant followed by a withdrawal of the benefits, of such a Covenant as the International Covenant for Civil and Political Rights, becomes compounded in the case of the Genocide Convention, and the result is one which, in my view, international law does not recognize or endorse at the present stage of its development.

Furthermore, there may be circumstances where, after a new State has proclaimed its independence, the accession of that State to statehood may itself be delayed by the non-recognition of a breakaway State by the State from which it breaks away. In such a situation, where advent of the new State to statehood is deliberately delayed by action of the former State, there can be no accession to the treaty by the breakaway State for a considerable time. During that period, it seems unreasonable that the citizens of that breakaway State should be deprived of such protection as the Convention may give them, against acts of genocide by the State from which the secession has occurred, as well as by the State that has seceded. The longer the delay in recognition, the longer then would the period be during which those citizens are left unprotected. Such a result seems to me to be totally inconsistent with contemporary international law — more especially in regard to a treaty protecting such universally recognized rights as the Genocide Convention.

8. The Special Importance of Human Rights Guarantees against Genocide during Periods of Transition

To the strong conceptual position resulting from the foregoing considerations, there must be added the practical imperatives that result from [p 651] a realistic view of the international situation occurring in the process of the dismemberment of a State, with all the political, social and military turmoil that is known only too well to accompany that process in modern times.

It would in fact be most dangerous to view the break-up of a State as clearing the decks of the human rights treaties and obligations of the predecessor State. It is dangerous even to leave the position unclear, and that is why I have felt impelled to state my opinion upon this all-important matter.

All around us at the present time, the break-up of States has often been accompanied by atrocities of the most brutal and inhuman kind, practised on a scale that defies quantification. To leave a lacuna in the continuity of the law or any vagueness in the perception of that continuity would be fraught with danger to the most cherished values of civilization.

If the principle of continuity in relation to succession of States, adopted in Article 34 (1) in the 1978 Vienna Convention on Succession of States in Respect of Treaties, is to apply to any treaties at all, the Genocide Convention must surely be among such treaties.

Furthermore, humanitarian treaties formulate principles that are an established part of the law of war. The law of war applies, of course, even in regard to an internal war (vide Geneva Convention 1977, Protocol II). The applicability of the principles underlying these treaties, among which the Genocide Convention may also be reckoned, becomes particularly important in times of internal turmoil. Such treaties cannot be suspended sine die during times of internal unrest such as accompany the break-up of a State, when they are most needed.

9. The Beneficiaries of the Genocide Convention Are Not Third Parties in the Sense Which Attracts the Res Inter Alios Acta Principle

The beneficiaries of the Genocide Convention, as indeed of all human rights treaties, are not strangers to the State which recognizes the rights referred to in the Convention. The principle that res inter alios acta are not binding, an important basis of the clean slate rule, does not therefore apply to such conventions. There is no vesting of rights in extraneous third parties or in other States, and no obligation on the part of the State to recognize any rights of an external nature. Far from being a transaction inter alios, such treaties promote the highest internal interests which any State can aspire to protect.

10. The Rights Conferred by the Convention Are Non-derogable

The rights and obligations guaranteed by the Genocide Convention are non-derogable, for they relate to the right to life, the most fundamental [p 652] of human rights, and an integral part of the irreducible core of human rights. It relates not merely to the right to life of one individual, but to that right en masse.

Moreover, under the Genocide Convention, the obligation of States is not merely to refrain from committing genocide, but to prevent and punish acts of genocide. The failure by a successor regime to assume and discharge this obligation would be altogether incompatible with State obli-gations as recognized in contemporary international law.

Another possible line of enquiry, not necessary for the determination of the present matter, is the analogy between a treaty vesting human rights, and a dispositive treaty vesting property rights. From the time of VattelFN21, such a dispositive treaty, as for example a treaty recognizing a servitude, has been looked upon as vesting rights irrevocably in the party to whom they were granted; and those rights, once vested, could not be taken away. Perhaps in comparable fashion, human rights, once granted, become vested in the persons enjoying them in a manner comparable, in their irrevocable character, to vested rights in a dispositive treatyFN22.

---------------------------------------------------------------------------------------------------------------------
FN21 See E. de Vattel, The Law of Nations or Principles of Natural Law, C. Fenwick (trans.), 1916, p. 169, referred to in Virginia Journal of International Law, 1979-1980, Vol. 19, p. 888, note 16.
FN22 On the possible extension to human rights of the doctrine of acquired rights which has traditionally been applied to dispositive treaties and property rights, see Malcolm N. Shaw, "State Succession Revisited", Finnish Yearbook of International Law, 1994, Vol. 5, p. 82; Rein Mullerson, "The Continuity and Succession of States, by Reference to the Former USSR and Yugoslavia", International and Comparative Law Quarterly, 1993, Vol. 42, pp. 490-491. See also the statement at the Human Rights Committee of one of its members referring to these rights as "acquired rights" which were not "diluted" when a State was divided (Serrano Caldera, CCPR/C/SR.1178/Add.l, 5 November 1992, p. 9).
---------------------------------------------------------------------------------------------------------------------

This interesting legal hypothesis need not detain us here as the conclusion I have reached is amply supported by the other principles discussed.

***

Some of the reasons set out above, even considered individually, are cogent enough to demonstrate the applicability of automatic succession to the Genocide Convention (and indeed to a wide range of human rights and humanitarian treaties). Taken cumulatively, they point strongly to the clear incompatibility with international law of the contention that the Genocide Convention ceases to apply to the subjects of a State upon the division of that State. [p 653]



International Pressure for Recognition of the Principle of Automatic Succession

In the discussions that took place at the United Nations Conference on Succession of States in Respect of Treaties, this aspect of a need to prevent a hiatus occurring in the process of succession of States received emphasis from several States. The position was well summarized by one delegate who, while pointing out that the "essence of the problem was to strike a balance between continuity and the freedom of choice which was the basis of the 'clean slate' principle"FN23, stated that, in the case of multilateral treaties, the need for continuity was pressing. He described as an "international vacuum" the situation that could arise if this were not the case, and spoke of this as "a lacuna inconvenient both to the newly independent State and to the international community"FN24.

---------------------------------------------------------------------------------------------------------------------
FN23 Mr. Shahabuddeen, speaking for Guyana, 23rd Meeting, 21 April 1977, Official Records, Vol. I, p. 163.
FN24Ibid., p. 162. See, also, Sweden, Mr. Hellners, 26th meeting, 25 April 1977, ibid., p. 177.
62
---------------------------------------------------------------------------------------------------------------------

This question has also been considered in some depth by the Commission on Human Rights and by the Human Rights Committee.

At its forty-ninth session, the Commission on Human Rights adopted resolution 1993/23 of 5 March 1993, entitled "Succession of States in respect of international human rights treaties". This resolution encouraged successor States to confirm officially that they continued to be bound by international obligations under relevant human rights treaties. The special nature of human rights treaties was further confirmed by the Commission in its resolution 1994/16 of 25 February 1994, and the Commission, in that resolution, reiterated its call to successor States which had not yet done so to confirm to appropriate depositories that they continued to be bound by obligations under international human rights treaties.

The Committee on Human Rights, at its forty-seventh session (March-April 1993), stated that all the people within the territory of a former State party to the Covenant remained entitled to the guarantees under the Covenant.

It is worthy of note also that during the fifth meeting of persons chairing the human rights treaty bodies, held from 19 to 23 September 1994:

"The chairpersons emphasized, however, that they were of the view that successor States were automatically bound by obligations under international human rights instruments from the respective date of independence and that observance of the obligations should [p 654] not depend on a declaration of confirmation made by the Government of the successor State."FN25

------------------------------------------------------------------------------------------------------------
FN25E/CN.4/1995/80, 28 November 1994, p. 4.
------------------------------------------------------------------------------------------------------------

The Ad Hoc Committee on Genocide also made the important point that the crime of genocide generally entails the complicity or direct involvement of GovernmentsFN26, and national courts are likely to be reluctant or ineffective in adjudicating claims of State-sponsored genocideFN27 — hence the importance of Article IX.

---------------------------------------------------------------------------------------------------------------------
FN26 United Nations, Official Records of the Economic and Social Council, Ad Hoc Committee on Genocide, Sixth Session, 4th meeting, United Nations doc. E/AC.25/SR.4 (1948), pp. 3-5, cited in M. Lippman, "The 1948 Convention on the Prevention and Punishment of the Crime of Genocide: Forty-five Years Later", Temple International and Comparative Law Journal, 1994, Vol. 8, p. 70.
FN27 Ibid.
---------------------------------------------------------------------------------------------------------------------

All of these views, though not authoritative in themselves, serve to underline the principle here under discussion. These are all committees with special experience of handling problems in the human rights area, and the force of their conviction of the necessity of such a rule emphasizes how vital it is in actual practice.
If such should be the principle suggested, in regard to human rights conventions such as the Covenant on Civil and Political Rights, one can be left in little doubt regarding its essentiality in regard to conventions such as the Genocide Convention.

A clarification of this principle is one of the ways in which international law can respond to the needs of international society.

In the words of Jenks, written in the context of State succession to treaties :

"if our legal system fails to respond to the widely felt and urgent needs of a developing international society, both its authority as a legal system and the prospect of developing a peaceful international order will be gravely prejudiced"FN28.

------------------------------------------------------------------------------------------------------------
FN28 Jenks, op. cit., p. 110.
------------------------------------------------------------------------------------------------------------

***

All of the foregoing reasons combine to create what seems to me to be a principle of contemporary international law that there is automatic State succession to so vital a human rights convention as the Genocide Convention. Nowhere is the protection of the quintessential human right — the right to life — more heavily concentrated than in that Convention.

Without automatic succession to such a Convention, we would have a situation where the worldwide system of human rights protections con-[p 655]tinually generates gaps in the most vital part of its framework, which open up and close, depending on the break-up of the old political authorities and the emergence of the new. The international legal system cannot condone a principle by which the subjects of these States live in a state of continuing uncertainty regarding the most fundamental of their human rights protections. Such a view would grievously tear the seamless fabric of international human rights protections, endanger peace, and lead the law astray from the Purposes and Principles of the United Nations, which all nations, new and old, are committed to pursue.

(Signed) Christopher Gregory Weeramantry [p 656]


Separate opinion of judge Parra-Aranguren

While endorsing the operative paragraphs in the Judgment, I have decided to append this separate opinion to emphasize the following points that I consider of great importance:

1. The fact that Bosnia and Herzegovina became a party to the Genocide Convention was expressly admitted by Yugoslavia on 10 August 1993 when requesting the Court to indicate the following provisional measures:

"The Government of the so-called Republic of Bosnia and Herzegovina should immediately, in pursuance of its obligation under the Convention on the Prevention and Punishment of the Crime of Genocide of December 1948, take all measures within its power to prevent commission of the crime of genocide against the Serb ethnic group." (Emphasis added.)

Therefore, Yugoslavia admitted that Bosnia and Herzegovina was a party to the Genocide Convention and consequently that the Court has jurisdiction on the basis of its Article IX; a declaration that is particularly important because it was made almost two months after the Secre-tary-General of the United Nations received, on 15 June 1993, the communication from Yugoslavia objecting to the notification of succession made by Bosnia and Herzegovina in respect of the Genocide Convention.

2. The declaration made by Bosnia and Herzegovina expressing its wish to succeed to the Convention with effect from 6 March 1992, the date on which it became independent, is wholly in conformity with the humanitarian nature of the Genocide Convention, the non-performance of which may adversely affect the people of Bosnia and Herzegovina. In my opinion the Judgment should have remarked on and developed this point, taking into account that the importance of maintaining the application of such conventions of humanitarian character had already been recognized by the Court in its Advisory Opinion of 21 June 1971, when determining "the legal consequences for States of the continued presence of South Africa in Namibia, notwithstanding Security Council resolution 276 (1970)"; resolution that had declared invalid and illegal all acts taken by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate. In that case it was recalled that member States were under an obligation to abstain from entering into treaty relations with South Africa in all cases in which the [p 657] Government of South Africa purported to act on behalf of or concerning Namibia; and immediately after the Court added:

"With respect to existing bilateral treaties, member States must abstain from invoking or applying those treaties or provisions of treaties concluded by South Africa on behalf of or concerning Namibia which involve active intergovernmental co-operation. With respect to multilateral treaties, however, the same rule cannot be applied to certain general conventions such as those of a humanitarian character, the non-performance of which may adversely affect the people of Namibia." (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports 1971, p. 55, para. 122.)
Similar ideas are sustained by Article 60, paragraph 5, of the 1969 Vienna Convention on the Law of Treaties when providing that its rules on termination or suspension of a treaty as a consequence of its breach

"do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties".

It is not easy to understand why the same conclusion was not accepted by the Court in this case relating to the application of the Genocide Convention.

(Signed) Gonzalo Parra-Aranguren. [p 658]

 


Dissenting opinion of judge KreCa

Table of contents

 

 

Paragraphs

 

 

Introduction

 

 

 

First Preliminary Objection

 

 

 

Basic approach to the meaning of the first preliminary objection

1

Concept of the State ab intra 3-4 Application of the constituent element of the concept to Bosnia and Herzegovina

5-26

Meaning of the Dayton Agreement in the establishment of Bosnia and Herzegovina within the administrative bounda­ries of that former Yugoslav federal unit

22-25

Recognition of Bosnia and Herzegovina

26

 

 

Second Preliminary Objection

 

 

 

Relevance of internal law in concreto

27

Was the President of the Presidency of Bosnia and Herzegovina authorized to personally accredit a "General Agent with extraordinary and plenipotentiary powers to the Court"?

28-29

Could Mr. Izetbegovic have performed the function of Presi­dent of the Presidency ex constitutione after 20 December 19927

30-37

Legal qualification of the matter

38-39

 

 

Third Preliminary Objection

 

 

 

Sedes materiae of the third preliminary objection 40 Relevance of international law to the birth of States (concept of the Slate ab extra)

41-44

The legality of the proclamation of Bosnia and Herzegovina's independence in the light of the internal law of the Socialist Federal Republic of Yugoslavia

45-67

Relevance of the internal law of the Socialist Federal Repub­lic of Yugoslavia

45-46

Constitutional concept of the Yugoslav State — constitu­tional concept of Bosnia and Herzegovina

47-58

Promulgation of Bosnia and Herzegovina as a sovereign Slate

59-67

Legality of the proclamation of independence of Bosnia and Herzegovina in the light of international law

68-81

Relation between the legality of the birth of a State and succes­sion with respect to international treaties

82-89

Is Yugoslavia a party to the Genocide Convention? 90-97

 

[p 659]

 

Fifth Preliminary Objection

 

Principal legal questions raised by Yugoslavia's fifth prelimi­nary objection

99

Qualification of the conflict in Bosnia and Herzegovina

100

Legal nature of the rights and obligations of States under the Convention

101

Does the Genocide Convention contain the principle of univer­sal repression?

102

Could a State be responsible for genocide?                 

103-104

The scope of Article IX of the Convention

105

 

 

Sixth Preliminary Objection

 

 

 

General approach to the issue raised by Yugoslavia's sixth pre­liminary objection

106-107

Legal nature of the Genocide Convention

108

Institute of "automatic succession" — lex lata or lex ferenda?

109-111

Principles underlying the Convention as a part of the corpus juris cogent is

112-114

Notification of succession — whether it is capable per se of expressing consent to be bound by the treaty?

115-118

Is the Dayton Agreement a basis for the application of the Genocide Convention between Yugoslavia and Bosnia and Herzegovina?

119

 

 

Seventh Preliminary Objection

 

 

 

Scope of Article IX of the Convention ratione temporis retroactivity or non-retroactivity?

120



[p 660]
Introduction

In spite of my respect for the Court, I am compelled, with deep regret, to avail myself of the right to express a dissenting opinion.
As each objection appears to be designed as a separate whole, I shall treat the objections raised by Yugoslavia separately, in such a way as to ensure that the conclusions drawn therefrom will serve as a proper basis for my general conclusion concerning the jurisdiction of the Court and the admissibility of Bosnia and Herzegovina's claim.

FIRST PRELIMINARY OBJECTION

1. My approach to the meaning of the first preliminary objection is essentially different from that of the Court. Prior to deciding whether in concreto there is an international dispute within the terms of Article IX of the Genocide Convention, it is necessary, in my opinion, to resolve the dilemma of whether Bosnia and Herzegovina at the time when the Application, as well as the Memorial, were submitted, and Bosnia and Herzegovina as it exists today when this case is being heard, are actually one and the same State. This question represents, in my opinion, a typical example of what Judge Fitzmaurice in his separate opinion in the Northern Cameroons caseFN1 described as objections "which can and strictly should be taken in advance of any question of competence", for it opens the way for the persona standi in judicio of Bosnia and Herzegovina.


---------------------------------------------------------------------------------------------------------------------
FN1I.C.J. Reports 1963, p. 105.
---------------------------------------------------------------------------------------------------------------------

If they are the same State, then the issue raised by the preliminary objection is in order. In the event that they are not, the situation is in my opinion clear — there is no dispute concerning Article IX of the Convention — hence, placitum aliud personale.

In this regard, the issue raised by the first preliminary objection is not an issue of admissibility stricto sensu, but a mixture, in its own right, of admissibility and jurisdiction ratione personae.
2, The aforementioned question is directly linked with the concept of an international dispute, the substance of which consists of two cumulative elements — the material, and the formal. The generally accepted definition of the dispute which the Court gave in the Mavrommatis Palestine Concessions caseFN2 represents, in fact, only the material element of the concept of "international dispute". In order to qualify "a disagreement over a point of law or fact, a conflict of legal views or of interests", which is evident in this specific case, as an "international dispute", another, formal element is indispensable, i.e., that the parties in the "disagreement or conflict" be States in the sense of international public law.[p 661] Article IX of the Genocide Convention stipulates the competence of the Court for the "disputes between the Parties". The term "Parties", as it obviously results from Article XI of the Convention, means States, either members or non-members of the United Nations.

--------------------------------------------------------------------------------------------------------------------
FN2 P.C.I.J., Series A, No. 2, p. 11.
---------------------------------------------------------------------------------------------------------------------

The term "State" is not used either in abstracto in the Genocide Convention, or elsewhere; it means a concrete entity which combines in its personality the constituting elements of a State, determined by the international law. The pretention of an entity to represent a State, and even recognition by other States, is not, in the eyes of the law, sufficient on its own to make it a State within the meaning of international law.

From the very beginning of the proceedings before the Court, Yugoslavia challenged the statehood of Bosnia and Herzegovina. It is true that, as the Court noted, Yugoslavia explicitly withdrew this preliminary objection. However substantial arguments against the statehood of Bosnia and Herzegovina at the relevant time were indicated by Yugoslavia in support of its third objection. Exempli causa, Yugoslavia emphasized that "[t]he central organs of the Government of this Republic controlled a very small part of the territory of Bosnia and Herzegovina ... In fact four states existed in the territory of the former Socialist Republic of Bosnia and Herzegovina . . ."FN3. The third objection of Yugoslavia may in substance be reduced to the assertion that Bosnia and Herzegovina, in the light of relevant legal rules, "has not established its independent statehood" within the administrative boundaries of that former federal unit. This was an additional reason for the Court to take its stand on the aforementioned question, not only in order to be able to take the decision on the first preliminary objection of Yugoslavia, but also in order to decide whether, and to what extent, it was competent in this case.

--------------------------------------------------------------------------------------------------------------------
FN3 CR 96/5, p.35.
---------------------------------------------------------------------------------------------------------------------

The response to the question whether Bosnia and Herzegovina, at the relevant points in time, was constituted as a State within the administrative boundaries of the federal unit of Bosnia and Herzegovina has, in my opinion, a definite affect on the succession to the Genocide Convention. To be bound by the Genocide Convention is only one of the forms of "replacement of one State by another in the responsibility for international relations of the territory". The word "territory" refers to the space in which the newly formed State exercises summa potestas, the space within which it is constituted as a State in the sense of the relevant norms of international law. It need hardly be said that there is no legal basis that would enable one State to assume contractual obligations in the name of another State or States, whether recognized or not. Bosnia and Herze-govina explicitly claims — and, what is more, its entire Memorial is based on that claim — that it is acting in the name of the whole of the former federal unit of Bosnia and Herzegovina, i.e., that Bosnia and Herze-[p 662]govina is the successor State in relation to the entire territory of that former federal unit. Hence, in my opinion, it is essential that the Court, in defining the factual and legal state of affairs in the territory of Bosnia and Herzegovina at the relevant points in time, should precisely determine the scope of its jurisdiction.

Finally, in its scope, the answer to the question of the State identity of Bosnia and Herzegovina is, in my view, also relevant with regard to the Yugoslav claim stated in the fifth preliminary objection according to which the case "in point is an international conflict between three sides in which FRY was not taking part".

Having in mind the foregoing, and even in the event that Yugoslavia has not made such an assertion, the Court is not relieved of the obligation to do so. As established in the Judgment on the Appeal Relating to the Jurisdiction of the JCAO Council:

"The Court must however always be satisfied that it has jurisdiction, and must if necessary go into that matter proprio motu. The real issue raised by the present case was whether, in the event of a party's failure to put forward a jurisdictional objection as a preliminary one, that party might not thereby be held to have acquiesced in the jurisdiction of the Court."FN4

-----------------------------------------------------------------------------------------------------------
FN4 I.C.J. Reports 1972, p.52
------------------------------------------------------------------------------------------------------------

3. (The concept of the State ab intra.) The concept of the State ab intra defines the State as an isolated, static phenomenon on the basis of its constituent elements. The State so defined is usually understood to be an entity comprised cumulatively of a permanent population, an established territory and sovereign authority. Not infrequently, other elements of the State are also cited but they do not merit the qualification of constituent elements. They are by their nature either derived elements (exempli causa, "capacity to enter into relations with other States") or they reflect exclusivistic concepts which are on to logically in contradiction with the democratic nature of positive international law ("degree of civilization such as enables it to observe the principles of international law", etc.).

As far as the nature of the cited constituent elements of the State are concerned, they are legal facts. As legal facts they have two dimensions.

The qualification "constituent elements of the State" reflects the static, phenomenological dimension of the concept of the State. It proceeds from the State as a fact, i.e., phenomenologicaliy, and focuses on the basic constituent elements of its static being.

In the case of the emergence of new States, the constituent elements of the concept of the State lose their phenomenological characteristics — since in that case, there is no State as an entity — and are transformed into prerequisites for the emergence of a State, In other words, for a cer-[p 663]tain entity to become a State it must cumulatively fulfil conditions which are, in the material sense, identical with the constituent elements of a State in the static, phenomenological sense.

4. What is the mutual relationship among the basic constituent elements of the State? From the formal standpoint, the question may appear to be superfluous, as by its very wording it suggests the only possible answer and that is that they are elements that function cumulatively. However, the question does have a logic of its own if one views it as relating to the value relationship among the cumulative elements or, in other words, if one views, within the concept of the State comprised of the three cited elements, their mutual relationship ab intra.
With the reservation that the value relationship among the cited elements is to some extent determined in advance by the cumulative nature of the elements, some conclusions can nonetheless be drawn. First, there is no doubt that a certain value relationship, if not even a hierarchy, does exist. Suffice it to note that territory and population are immanent to some non-State entities as well. It is also beyond doubt that the element of sovereignty is peculiar to the State alone. Thirdly — and this is the differentia specifica between States and other, non-State entities — sovereignty is in a sense a qualifying condition, a condition of special value, for sovereign authority is not only one of the constituent elements of the State, but it is at the same time an element which gives concrete substance to the rather abstract and broad concepts of "territory" and "population" and, in so doing, links them to the concept of the State in the sense of international law. Evidently, for a "territory" to be "State territory" it must be subject to sovereign authority. Without it a "territory" is not a State territory but it is something else (res nullius, trusteeship territory, res communis omnium, common heritage of mankind and the like).

5. Were the constituent elements of a State in existence in the case of Bosnia and Herzegovina at the relevant point in time?

6. There is no doubt that Bosnia and Herzegovina had a "permanent population" if we use the term in the technical sense, i.e., in the sense of a group of individuals who were linked to the relevant territory by their way of life.

However, within the system of positive international law, the term "permanent population" acquires a different meaning. In a system that recognizes the fundamental significance of the norms of equal rights and self-determination of peoples (see paras. 67-68, 71 below), the concept of a "permanent population", at least when referring to a territory inhabited by several peoples, cannot have only the cited technical meaning. In that case, if one is to be able to speak of a "permanent population" in view of the norm on equal rights and self-determination of peoples, there has to be a minimum of consensus among the peoples regarding the conditions of their life together.

In Bosnia and Herzegovina that minimum did not exist. The Referendum of 29 February and 1 March 1992, in relation to the national plebi-[p 664]scite of the Serb people in Bosnia and Herzegovina of 9-10 November 1991, showed that the "permanent population" of the federal unit of Bosnia and Herzegovina was divided into the Muslim-Croat peoples on the one hand and the Serb people on the other. The unification of the communes with a majority Croat population into the Croatian Community of Herceg-Bosna on 19 November 1991 and especially the formation of the independent State community of Herceg-Bosna on 4 July 1992, symbolized the complete divergence of options among the three peoples of Bosnia and Herzegovina. In an entity in which summa potestas is a constituent element of special importance and bearing in mind how it was distributed in Bosnia and Herzegovina, there are strong grounds to claim that in Bosnia and Herzegovina there were in fact three "permanent populations".

7. The use of the term "defined territory" implies defined and settled boundaries in accordance with the rules of positive international law. As a condition for the existence of a State, "defined and settled boundaries" do not have absolute value — in practice a State has been considered to have been constituted even when all its boundaries were not defined. However, it is essential that "there is a consistent band of territory which is undeniably controlled by the Government of the alleged State"FN5. The rule is that the boundaries be established by international treaty or, exceptionally, on the basis of the principle of effectiveness.

---------------------------------------------------------------------------------------------------------------------
FN5 M. N. Shaw, International Law, 1986, p. 127.
---------------------------------------------------------------------------------------------------------------------

The question whether Bosnia and Herzegovina had "defined and settled boundaries" has a two-fold meaning: material and in terms of time.

8, In the material sense, the relevant question is whether one can equate administrative-territorial boundaries within a composite State and frontiers between States in the sense of international law?

The answer can only be negative both from the standpoint of the internal law of the Socialist Federal Republic of Yugoslavia (SFRY) and from the standpoint of international law.

As far as the internal law of SFRY is concerned, suffice it to note the provisions of Article 5 (I) of the SFRY Constitution which stipulated expressis verbis that the "territory of SFRY is unified" and that it is "composed of the territories of the Socialist Republics". That the "boundaries" between the federal units were merely lines of administrative division is also evidenced by the fact that they were not directly established by any legal act. They were determined indirectly, via the territories of the communes which comprised a certain federal unit so that they were, in a sense, the aggregation of communal borders. Thus, the Constitution of Bosnia and Herzegovina stipulated in Article 5: "[t]he territory of SR Bosnia-Herzegovina is composed of the areas of the communes". [p 665]

The administrative nature of the boundaries of the federal units in SFRY was also recognized by the Arbitration Commission of the Conference on Yugoslavia whose opinions are used by the Applicant as its main argument. In Opinion No. 3, it described the boundaries between the Yugoslav federal units as "demarcation lines"FN6.

---------------------------------------------------------------------------------------------------------------------
FN6 The Conference for Peace in Yugoslavia, Arbitration Commission, Opinion No, 3, para. 2 (3).
---------------------------------------------------------------------------------------------------------------------

In the light of international law, the terms "frontier" or "State border lines" are reserved for States with international personality. More particularly, whereas the SFRY was a State in terms of public international law and of the United Nations Charter, the republics were the component parts of Yugoslavia and, in the context of the legal nature of a federation, they were the component parts of a single State in foro externa and of a composite State in foro interno since the federation is distinguished by the parallel existence of a federal and a republican government organization in a manner and on a scale established under the Constitution and the law.

9. From the standpoint of time, the question is posed differently — were the administrative-territorial boundaries of Bosnia and Herzegovina transformed into borders in the sense of international law, tractu tem-poris, from the moment the "sovereignty and independence" of Bosnia and Herzegovina was proclaimed?

The possibility of such a transformation exists in principle. "Non-borders" can become "borders" in the same way in which "borders" are constituted, that is by agreement or, exceptionally, on the basis of the principle of effectiveness.

Examples of such a transformation are the cases of the Soviet Republics and the Czech Republic and Slovakia. In the Yugoslav case, such a transformation implied two things: first, that a decision on the dissolution of SFRY or a state-legal restructuring had been taken by the highest organ of authority through an appropriate procedure and, second, that in either case, the establishment of Bosnia and Herzegovina as an independent State had been envisaged. The relevant facts imposed such a solution. First, Bosnia and Herzegovina was not an authentic constituent of the Yugoslav State. Such a status was enjoyed, among others, by the peoples of" Bosnia and Herzegovina (paras. 48-60 below). Further, being a derivative entity of the constitutional law of Yugoslavia without the right to secession, Bosnia and Herzegovina's existence depended on the existence of Yugoslavia. Consequently, even under the hypothesis that the dissolution of SFRY had taken place, this would not in itself signify the transformation of Bosnia and Herzegovina into an independent State within its administrative boundaries. Legally, the hypothetical dissolution would necessarily have had to result in the political and legal reconstruc-[p 666] tion of the space of Bosnia and Herzegovina on the basis of the norm on equal rights and self-determination of peoples.

Bosnia and Herzegovina did not accept the "Concept for the future organization of the State", proposed by a working group comprising representatives of all the Republics, as a basis for further talks involving the republican presidents and the State Presidency, which, inter alia, included a "Proposed Procedure for dissociation from Yugoslavia" on the basis of the self-determination of peoples. This part of the "Concept" which was drawn up to deal with the constitutional crisis in SFRY in a peaceful and democratic manner, respecting the relevant norms of international law and the internal law of SFRY, envisaged a corresponding solution for the borders as well. On the basis of the draft amendment to the SFRY Constitution, the "Concept" stipulated the obligation of the Federal Government to "c. prepare proposals for the territorial demarcation and the frontiers of the future states and other issues of importance for formulating the enactment on withdrawal"FN7.

---------------------------------------------------------------------------------------------------------------------
FN7 Focus, Special Issue, January 1992, p. 33.
---------------------------------------------------------------------------------------------------------------------

What remains therefore, is the principle of effectiveness as a possible basis for the transformation of the administrative-territorial boundaries of the federal unit of Bosnia and Herzegovina into international borders. As this principle implies the effective, actual exercise of sovereign author-ity, and considering the scope of that authority of the central government in Sarajevo (see para. 18 below), it is beyond doubt that the mentioned transformation of boundaries on the basis of the principle of effectiveness did not occur.

10. The Arbitration Commission of the Conference on Yugoslavia whose opinion Bosnia and Herzegovina uses as argument, states with respect to the relevant question :

"[e]xcept where otherwise agreed, the former boundaries become borders protected by international law. This conclusion follows from the principle of respect for the territorial status quo and, in particular, from the principle of uti possidetis . . . [which] though initially applied in settling decolonization issues in America and Africa, is today recognized as a general principle, as stated by the International Court of Justice in its Judgment of 22 December 1986 in the case between Burkina Faso and Mali (Frontier Dispute, (1986) I.C.J. Reports 554 at 565):

'Nevertheless the principle is not a special rule which pertains [p 667] solely to one specific system of international law. It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of the new States being endangered by fratricidal struggles.'"FN8

---------------------------------------------------------------------------------------------------
FN8 The Conference for Peace in Yugoslavia, Arbitration Commission, Opinion No. 3, para. 2 (4).
---------------------------------------------------------------------------------------------------

Such reasoning is not legally tenable.

First, the phrase "territorial status quo" in this specific case is a contraditio in adiecto. It does have a logical and legal sense in the international order, in the mutual relations between States as persons in international law. The territorial status quo in the United Nations system is a terminological substitute for the principle of respecting a State's territorial integrity, and strictly speaking, it refers to States in the sense of international law and not to the integral parts of a federation. In foro interno, the "territorial status quo" is of qualified significance for a State's own territorial organization as a matter which falls within the domain of strictly internal jurisdiction (domaine reserve). So, since the creation of Yugoslavia in 1918, the internal administrative territorial boundaries have been drawn three times: first in 1918 within the Kingdom of the Serbs, Croats and Slovenes with a division of the country into 32 regions; next in 1929, in the Kingdom of Yugoslavia, with the organization of nine Banovinas as administrative units; and then in the period between 1943 and the early post-war years during the formation of Federal Yugoslavia and its six republics. Consequently, the expression "territorial status quo " in municipal law can only be considered as a kind of legal metaphor for a rule of national law which would prohibit changing administrative boundaries.

Second, reference to the Judgment of the International Court of Justice in the Frontier Dispute case cannot have effect in this concrete case not only because the relevant part of the Judgment is not cited in extensoFN9. but also because the meaning of the Judgment as a whole differs significantly.

---------------------------------------------------------------------------------------------------------------------
FN9 The part of the Judgment which the Commission has cited ends with the words; "provoked by the challenging of frontiers following the withdrawal of the administering power" (para. 20; emphasis added). See paragraphs 19, 20, 23 of the Frontier Dispute Judgment, I.C.J. Reports 1986, pp. 564-565, 566.
---------------------------------------------------------------------------------------------------------------------

Outside the colonial context to which the reasoning of the Court applies in the Frontier Dispute case, the principle of uti possidetis in positive international law can only have the meaning which corresponds to the original meaning of that principle as expressed in the formula "uti possidetis, ita posideatur ", i.e., the meaning of the principle of effectiveness.

11. With regard to the qualification of the borders of Bosnia and Herzegovina, it is interesting to examine the "Framework Agreement for the Federation" concluded on 2 March 1994 in Washington. Chapter I (Establishment) of the "Framework Agreement for the Federation" stipu-lates, inter alia, that: [p 668]

"Bosniacs and Croats, as constituent peoples (along with others) and citizens of the Republic of Bosnia and Herzegovina, in the exercise of their sovereign rights, transform the internal structure of the territories with a majority of Bosniac and Croat population in the Republic of Bosnia and Herzegovina into a Federation, which is composed of federal units with equal rights and responsibilities."

Though the "Framework Agreement" makes no mention of frontiers, there is no doubt that its contents, in the context of relevant norms of international law, has definite implications with respect to the borders of Bosnia and Herzegovina.

The "Framework Agreement" represents a tacit renunciation of the concept of a unified Bosnia and Herzegovina and thereby of the administrative boundaries of Bosnia and Herzegovina as international frontiers. In particular, it is clear that by this Agreement, the political representatives of the Croat and Muslim peoples in Bosnia and Herzegovina agreed to constitute a federal State which would have confederal links with Croatia. The Constitution of the Federation was undoubtedly derived from the norm of equal rights and self-determination of the Muslim and Croat peoples in Bosnia and Herzegovina even though this norm is not explicitly mentioned in the Agreement. Such a conclusion is warranted by the qualification that the Federation was constituted on the basis of "the exercise of sovereign rights . . . [of] Bosniacs and Croats as constituent peoples". True, the Agreement proceeds from the "sovereignty and territorial integrity of the Republic of Bosnia and Herzegovina" but this syntagm in the context of the relevant facts has more of a declarative than a material significance. The "Framework Agreement" defines the territory of Bosnia and Herzegovina as "territories with a majority of Bosniac and Croat populations in the Republic of Bosnia and Herzegovina". In relation to the parts of Bosnia and Herzegovina inhabited by a majority Serb population, the "Framework Agreement" says:
"[t]he decisions on the constitutional status of the territories of the Republic of Bosnia and Herzegovina with a majority of Serbian population shall be made in the course of negotiations toward a peaceful settlement: and at the International Conference on the Former Yugoslavia".

It is therefore beyond question that:

(a) the "Framework Agreement" envisages the constitution of a Muslim-Croat Federation on the territory of Bosnia and Herzegovina;

(b) those territories of Bosnia and Herzegovina that are inhabited by a majority Serb people are left out of the territories of the Federation;

(c) representatives of the Muslim-Croat Federation are acting and are accepted in international affairs, including international organizations, as representatives of an autonomous, independent State; [p 669]

(d) the "Framework Agreement" links the decision on the status of "territories of Bosnia and Herzegovina with a majority Serb population" to the "course of negotiations toward a peaceful settlement and at the International Conference on the Former Yugoslavia". In view of the rules of general international law on the decision-making procedure which, it goes without saying, apply also to the International Conference on the Former Yugoslavia, the conclusion that imposes itself is that the material-legal meaning of the "Framework Agreement" with respect to the borders of Bosnia and Herzegovina is that the Federation, constituted as a result of the will of two out of the three constituent peoples of Bosnia and Herzegovina, renounced the administrative borders of Bosnia and Herzegovina as State borders of the Federation leaving open the possibility of those borders being changed on the basis of decisions taken "in the course of negotiations toward a peaceful settlement and at the International Conference on the Former Yugoslavia".

669 APPLICATION OF GENOCIDE CONVENTION (DISS. OF. KRECA)

78

12. It was the Dayton Agreement which transformed the administrative Boundaries of Bosnia and Herzegovina into international borders. Article 10 of the Agreement stipulates that "[t]he Federal Republic of Yugoslavia and the Republic of Bosnia and Herzegovina recognize each other as sovereign independent States within their international borders".

13. Regardless of theoretical definitions of sovereignty and the distinctions based on them regarding its manifestations, it is evident that the sovereignty of States implies:

(i) suprema potestas — "by which is meant that the State has over it no other authority than that of international law"FN10. The equals-mark that is being placed between suprema potestas and independenceFN11 is indicative of a substantial fact — that the entity purporting to be a State in the sense of international public law takes vital political decisions autonomously and independently of third States. A State in the international legal sense cannot and must not comply with alien political decisions regardless of whether such compliance has a formal or informal basis. Therein lies the meaning of the qualification according to which "the first condition for statehood is that there must exist a government actually independent of any other State"FN12.

---------------------------------------------------------------------------------------------------------------------
FN10 Customs; Regime between Germany and Austria, Advisory Opinion. 1931, P.C.I.J.. Series A/B, No. 41, separate opinion of Judge Anzilotti, p. 57.
FN11 Island of Las Palmas case, Reports of International Arbitral Awards, Vol. II, p. 838.
FN12 H.Lauterpacht, Recognition in International Law, 1949, p. 26.
---------------------------------------------------------------------------------------------------------------------

(ii) summa potestas— in the sense of the exercise of real, factual authority on the territory of the State. The intention to establish genuine authority is no more than a political project, an intellectual construction that has not materialized. That intention has to be realized and this implies, inter alia, the existence of an institutional network suit-[p 670]able for and capable of implementing its decisions throughout the State territory. Hence, summa potestas is a mere figure of speech "until a stable political organisation has been created, and until public authorities become strong enough to assert themselves throughout the territory of the State"FN13.

---------------------------------------------------------------------------------------------------------------------
FN13 Legal Aspects of the Aaland Island Question, Report of the International Committee of Jurists, Official Journal of the League of Nations:, Special Supp. No. 3, p. 3 (1920).
---------------------------------------------------------------------------------------------------------------------

These two segments of sovereignty constitute an organic whole. As for their mutual relationship, summa potestas has the character of a prior assumption as, for an entity to constitute an independent State, it is essential that it should have come into existence as a State — from the theoretical standpoint suprema potestas is the qualifying condition of existence of an independent State, the differentia specifica between independent and dependent States.

14. The question whether Bosnia and Herzegovina had summa potestas within the administrative boundaries of Bosnia and Herzegovina must be linked to a certain time frame. For the purpose of this specific question, two points in time are relevant:

(a) the moment of the proclamation of a "sovereign and independent Bosnia"; and,

(b) the moment at which proceedings were brought against the Federal Republic of Yugoslavia before the International Court of Justice.

Did the Applicant at these relevant points in time have a "stable political organization" within the administrative boundaries of Bosnia and Herzegovina on the one hand and were its "public authorities strong enough to assert themselves throughout the territory" of Bosnia and Herzegovina on the other?
15. According to the assertions of the Applicant, Bosnia and Herzegovina was proclaimed a "sovereign and independent Bosnia" on 6 March 1992 when the results of the referendum held on 29 February and 1 March 1992 were officially promulgated. It is beyond dispute that, at that point in time, the Applicant did not have a "stable political organization " throughout the territory of Bosnia and Herzegovina nor were its "public authorities strong enough to assert themselves throughout the, territory" of Bosnia and Herzegovina. More particularly, prior to the proclamation of "sovereign and independent Bosnia" within the administrative boundaries of Bosnia and Herzegovina two de facto States — the Republic of Srpska and the Croatian Community of Herceg-Bosna — had been formed.

The Croatian Community of Herceg-Bosna was founded on 9 November 1991 (and it was proclaimed an independent State community under the same name on 4 July 1992), whereas the Republic of the Serb people of Bosnia and Herzegovina was formed by a Declaration of the Assembly [p 671] of the Serb people issued in January 1992 (it changed its name to the Republic of Srpska on 7 April of the same yearFN14).

---------------------------------------------------------------------------------------------------------------------
FN14 Official Gazette of the Socialist Republic of Bosnia and Herzegovina, No. 42 of 19 December 1991.
---------------------------------------------------------------------------------------------------------------------

The common denominator of both units is that they represent the institutionalization of authority in regions in which, in the main, the parties of the Serb and Croatian peoples of Bosnia and Herzegovina won a majority at the first multi-party elections held on 18 and 19 November 1990FN15 and under the direct influence of the substantive differences that had emerged among the national parties of the three constituent peoples with respect to the future status of the federal unit of Bosnia and Herzegovina. Those differences appeared in a clear and unambiguous form already at the time of the outbreak of the constitutional crisis in SFRY with the proclamation of the "sovereignty and independence" of the federal units of Slovenia and Croatia, and culminated when the "Platform on the Status of Bosnia and Herzegovina and the Future Set-Up of the Yugoslav Community" was adopted by the then rump Assembly of Bosnia and Herzegovina on 14 October 1991.

---------------------------------------------------------------------------------------------------------------------
FN15 Ibid.
---------------------------------------------------------------------------------------------------------------------

The "Platform on the Status of Bosnia and Herzegovina" inter alia qualified Bosnia and Herzegovina as a "democratic sovereign State" which would advocate the adoption of a "Convention on the mutual recognition of the sovereignty, inviolability and unchangeability of the borders of the present-day republics"FN16.

---------------------------------------------------------------------------------------------------------------------
FN16 Ibid, No. 32 of 16 October 1991.
---------------------------------------------------------------------------------------------------------------------

The practical effect of the "Platform on the Status" was the dissolution of the state-legal body of the federal unit of Bosnia and Herzegovina, hence the powers vested in its organs according to the federal Constitution and the Constitution of Bosnia and Herzegovina via facti were itself taken over by the three ethnic communities.

16. (Republika Srpska.) The Assembly of the Serb people of Bosnia and Herzegovina at its session held on 9 January 1992 adopted a "Declaration on the Proclamation of the Republic of the Serb People of Bosnia and Herzegovina" in the areas

"of the Serb autonomous regions and areas and other ethnic Serb communities in Bosnia-Herzegovina, including the areas where the Serb people has remained a minority as a result of genocide against it during World War Two and further to the outcome of the plebiscite held on November 9 and 10, 1991 at which the Serb people voted to remain in the common State of Yugoslavia"FN17.

------------------------------------------------------------------------------------------------------------
FN17 Official Gazette of the Serb People of Bosnia and Herzegovina, No. 2/92.
------------------------------------------------------------------------------------------------------------
[p 672]
The Declaration stipulated, inter alia, that:

"[p]ending the election and constitution of new organs and institutions to be established under the Constitution of the Republic, the functions of the State organs in the Republic shall be discharged by the present Assembly of the Serb people in Bosnia-Herzegovina and by the Council of Ministers" (Art. VI);

and that

"[t]he federal regulations, along with those of the former Bosnia-Herzegovina, except those found by the Serb People's Assembly to be contrary to the Federal Constitution, shall remain in force pending the promulgation of the Republic's Constitution, its laws and other regulations" (Art. VIII).

The Assembly of the Serb People in Bosnia and Herzegovina, at its session held on 29 February 1992, adopted the "Constitution of the Republic of Srpska" on the basis of the

"inalienable and in transferable natural right of the Serb people to self-determination, self-organization and association, on the basis of which it may freely determine its political status and ensure economic, social and cultural development".

The formal acts were accompanied by the actual assumption of authority in the territories of the communes.

The armed forces of the Republic of Srpska was at first composed of territorial defence units in the communes and of other armed formations. The Army of the Republic of Srpska was formed on 13 May 1992FN18.

---------------------------------------------------------------------------------------------------------------------
FN18 Report of the Secretary-General pursuant to paragraph 4 of the Security Council resolution 752/1992, doc. S/24049, 30 May 1992, para. 2.
--------------------------------------------------------------------------------------------------------------------

The Army of the Republic of Srpska, from its formation, operated autonomously as the military force of the proclaimed State. Clear confirmation of this is to be found in the above-mentioned report of the Secretary-General:

"The Bosnia and Herzegovina Presidency had initially been reluctant to engage in talks ... with the leadership of the 'Serbian Republic of Bosnia and Herzegovina' and insisted upon direct talks with the Belgrade authorities instead. A senior Yugoslav Peoples' Army (JNA) representative from Belgrade, General Nedeljko Boskovic, has conducted discussions with the Bosnia and Herzegovina Presi-dency, but it has become clear that his word is not binding on the commander of the army of the 'Serb Republic of Bosnia and Herzegovina ', General Mladic — it is also clear that the emergence of General Mladic and the forces under his command as independent actors [p 673] beyond the control of JNA greatly complicates the issues raised in paragraph 4 of the Security Council Resolution 752 (1992)."FN19

---------------------------------------------------------------------------------------------------
FN19 Doc. S/2409, 30 May 1992, paras. 8-9 (emphasis added).
---------------------------------------------------------------------------------------------------

In addition, Republic Srpska had its own legislative, executive and judicial organs.

17, (Croatian community of Herceg-Bosna.) Herceg-Bosna, the State of the Croatian people in Bosnia and Herzegovina, was proclaimed on 4 July 1992. With the exception of certain territorial changes, this act only formalized the situation created in November 1991 when the Croatian Community of Herceg-Bosna was created. From the very beginning, this functioned de facto as a State.

Herceg-Bosna had its own armed force. The Decree on the armed forces of the Croatian Community of Herceg-Bosna stipulated that the armed forces constitute a unified whole comprising the "regular and reserve forces"FN20. Confirmation of the existence of the autonomous armed forces of Herceg-Bosna is to be found also in the "Report of the Secretary-General pursuant to paragraph 4 of Security Council resolution 752 (1992)" (see para. 18 below). The Government in Sarajevo did not deny this fact either. A letter addressed by Hadzo Efendic as "Acting Prime Minister" to C.Vance and Lord Owen, the Co-Chairmen of the Conference on Former Yugoslavia on 29 April 1993, says inter alia:

---------------------------------------------------------------------------------------------------------------------
FN20Borba, Belgrade, 6 July 1992.
---------------------------------------------------------------------------------------------------------------------

"With the purpose of realizing the agreement from item 5 of the Common Statement made by Messrs Alija Izetbegovic and Mato Boban at the meeting held in Zagreb on April 24, 1993 .. .we would like to ask you to undertake activities aimed at establishing a separate, independent international commission for establishing the facts on violations of international humanitarian law and war crimes committed over the civilian population during the renewed conflicts between the Army of the R B-H and HVO in Central Bosnia and some other parts of the Republic of Bosnia and Herzegovina"FN21

------------------------------------------------------------------------------------------------------------
FN21 Letter dated 29 April 1993 from Acting Prime Minister Hadzo Efendic addressed to "Cyrus Vance, Lord David Owen, Co-chairmen of The Conference on Former Yugo-slavia".
------------------------------------------------------------------------------------------------------------

In addition to its armed forces, Herceg-Bosna had its own executive, legislative and judicial organs.

Supreme authority was vested in the Presidency, composed of representatives of the Croat people in Bosnia and Herzegovina, headed by the President of the Presidency. The Croatian representatives withdrew from the joint organs of the Applicant and moved to Mostar which was pro-[p 674]claimed the capital of the StateFN22. Herceg-Bosna appropriated all the materiel of JNA as well as all the property of the organs and bodies of the former federation. Public, State enterprises were formed in the sectors of agriculture, forestry and mining, the Post, Telegram and Telephone Service (PTT) and publishingFN23.

---------------------------------------------------------------------------------------------------------------------
FN22 Letter from the President of the Government of the Republic of Bosnia-Herzegovina to the Secretary-General of the United Nations, 13 May 1993.
FN23 Borba. Belgrade, 6 July 1992.
---------------------------------------------------------------------------------------------------------------------

It was determined that the Law on Regular Courts would be applied even under conditions of war, and military tribunals were set up in the zones of military operations, as autonomous departments of the main military tribunals.

18. In my opinion there can be no doubt that at the moment of the proclamation of "sovereign and independent Bosnia" the authorities in Sarajevo which had been recognized by the international community as the authorities of the whole of Bosnia and Herzegovina did not by a long way exercise summa potestas on the territories within the administrative demarcation lines of the federal unit of Bosnia and Herzegovina.

A "[s]table political organization of sovereign and independent Bosnia" simply did not exist at either of the relevant points in time. What is more, even before the proclamation of Bosnia and Herzegovina as a "sovereign and independent" State, the unified administrative, judicial and legislative apparatus of the federal unit of Bosnia and Herzegovina had ceased to function. It follows from the relevant facts that the proclamation of the Republic of the Serb People and of the Croatian Community of Herceg-Bosna merely formalized the dissolution of the state apparatus of the federal unit of Bosnia and Herzegovina and its replacement by the appropriate, structures of the three ethnic communities. That process embraced both the civilian and military structures of authority. This is evidenced also in the Report of the Secretary-General pursuant to paragraph 4 of Security Council resolution 752 (1992). In paragraphs 5 and 10 the Report refers to the existence of "the army of the so-called 'Serbian Republic of Bosnia and Herzegovina'", and the "territorial Defence of Bosnia and Herzegovina which is under the political control of the Presidency of that Republic" and "local [Croat] Territorial Defence". The "[sjtable political organization of sovereign and independent Bosnia", was not created even after the proclamation of independence so that it is obvious that the organs of the Applicant were not "strong enough to assert themselves throughout the territory" of Bosnia and Herzegovina.

This obvious fact is confirmed also in the "Report on the situation of human rights in the territory of the former Yugoslavia submitted by Mr. T. Mazowiecki, Special Rapporteur of the Commission on Human [p 765] Rights, pursuant to paragraph 14 of Commission Resolution 1992/S-l/l of August 1992". The "Report" states, inter alia, that

"[m]uch of the territory of Bosnia and Herzegovina is not under the control of the recognized Government. Most observers agree that the Serbian Republic of Bosnia and Herzegovina, an unrecognized government proclaimed when Bosnia and Herzegovina declared its independence from Yugoslavia against the wishes of the Serbian population, controls between 50 and 70 per cent of the territory . . . It ['Serbian Republic of Bosnia and Herzegovina'] is comprised of four 'autonomous regions', one of which, Banja Luka, was visited by the Special Rapporteur.

According to the information received, the law applied within the 'Serbian Republic of Bosnia and Herzegovina' is the law of the Federal Republic of Yugoslavia, as modified by the local legislatures."FN24

------------------------------------------------------------------------------------------------------------
FN24 Doc, E/CN.4/1992/S-1/9, 9.18 (emphasis added).
------------------------------------------------------------------------------------------------------------

All that needs to be added is that the "Serbian Republic of Bosnia and Herzegovina" was not proclaimed "when Bosnia and Herzegovina declared its independence" since the "Serbian Republic of Bosnia and Herzegovina" was proclaimed on 9 January 1992 while the rump Parliament of Bosnia and Herzegovina proclaimed the independence of Bosnia and Herzegovina on 6 March of the same year.

The "Report of the Secretary-General pursuant to paragraph 4 of Security Council resolution 752 (1992)" states that:

"International observers do not, however, doubt that portions of Bosnia and Herzegovina are under the control of Croatian military units, whether belonging to the local Territorial Defence, to paramilitary groups or to the Croatian Army."FN25

------------------------------------------------------------------------------------------------------------
FN25Doc. S/24049, p. 4, para. 10.
------------------------------------------------------------------------------------------------------------


This in fact refers to the territories of the communes comprising the Croatian Community of Herceg-Bosna formed on 9 November 1991, thai is before the proclamation of "sovereign and independent Bosnia".

The territory within which the organs of the Applicant exercised real, effective authority comprised in fact:

"Three separate regions are under the control of the Government of Bosnia and Herzegovina, namely, part of the capital, Sarajevo; the region known as Bihac, adjacent to the border with Croatia in North-West Bosnia, and parts of central Bosnia and Herzegovina."FN26

------------------------------------------------------------------------------------------------------------
FN26 Report on the human rights in the territory of the former Yugoslavia, submitted by Mr. T. Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant to paragraph 14 of Commission Resolution 1992/S-l/l of 14 August 1992, doc, E/CN.4/ 1992/S-1/9, p. 18.
------------------------------------------------------------------------------------------------------------

[p 676]
19. The timing of the constitution of the Republic of Srpska and of Herceg-Bosna, on the one hand, and of the Applicant State, on the other, points to the conclusion that the constitution of the Republic of Srpska and of Herceg-Bosna cannot be qualified as armed rebellion against the central authority, as there simply was no central authority at the time, but only as the emergence of several States in the circumstance of the constitutional and State crisis of the Yugoslav federation.

The assumed existence of a Muslim-Croat central authority in Bosnia and Herzegovina had no factual grounds from the very beginning of the crisis as convincingly evidenced by the war that broke out between Croat and Muslim forces in 1993. In a letter addressed to the Chairman of the European Affairs Subcommittee of the Senate Foreign Affairs Committee of the United States of America, on 24 February 1993, the Prime Minister of Bosnia and Herzegovina, the Croatian representative in the joint Croat-Muslim Government, M. Akmadzic, described Mr. Izetbe-govic and Mr. Silajdzic "only as one Muslim member of the Presidency" (see para. 37 below). Indicative of the situation in the joint Croat-Muslim Government in Bosnia and Herzegovina is the letter of the Prime Minister addressed to the Secretary-General of the United Nations on 7 May 1993 which says, inter alia:

"On 7 May 1993 I was informed by public media that Mr. Hadzo Efendic sent Your Excellency a letter in the capacity of Acting Prime Minister.

Therefore, I would like to inform Your Excellency that Mr. Hadzo Efendic was not elected as a member of the Government, nor as Vice-President of the Government and especially was not elected as Acting President of the Government of the Republic of Bosnia-Herzegovina. Mr. Hadzo Efendic was not elected based upon my proposal. This is the only legal course of election that is in accordance with the valid acts and regulations of the Republic of Bosnia-Herzegovina.

I am informing Your Excellency that no individual can sign documents of the Government of the Republic of Bosnia-Herzegovina in the capacity of the President of the Government other than myself. As a result of this, I request Your Excellency not to consider any document of the President of the Government of the Republic of Bosnia-Herzegovina as valid unless it is signed by myself.

My office is temporarily in Mostar where I am performing my duties as President of the Government of the Republic of Bosnia-Herzegovina." FN27

------------------------------------------------------------------------------------------------------------
FN27 Letter dated 7 May 1993 addressed to "United Nations Secretary-General, His Excellency Dr. Boutros-Bout ros Ghali from Milo Akmadzic, President of the Govern-ment of the Republic of Bosnia-Herzegovina" (emphasis added).
------------------------------------------------------------------------------------------------------------

Therefore, in the territory of Bosnia and Herzegovina in the relevant period the following institutions were functioning: [p 677]

(a) the State organs of the so-called central authorities (Croat-Muslim alliance), which formally collapsed with the outbreak of the armed conflict between the Muslims and the Croats and was transformed into Muslim authority. The latter then split up in September 1993 into the Government in Sarajevo and the authorities of the Autonomous Province of Western Bosnia;

(b) the State organs of the Republic of Srpska;

(c) the State organs of Herceg-Bosna; and

(d) as of March 1994, also the State organs of the newly formed Federation which, however, functioned only on paper.

20. Mr. Jadranko Prlic, Prime Minister of the Croatia Republic of Herceg-Bosna and Hercegovina, testified to the fact that the promotion of Croat-Muslim Federation in Bosnia and Herzegovina was a mere proclamation. In an interview given to the Slobodna Dalmacija daily newspaper of 18 December 1995, answering the question about the functions of the Minister of Defence in the Government of the Federation and the Republic, Mr. Prlic, who initialled the Dayton Treaties on behalf of the Croat-Muslim Federation, replied as follows:

"it should be said that all the time two states and two armies were in existence. But, there was a certain form of coordination and a result was achieved, primarily thanks to the support of the Croat army and Croat state"FN28.

------------------------------------------------------------------------------------------------------------
FN28 Slobodna Dalmacija, Split:, 18 December 1995 (emphasis added).
------------------------------------------------------------------------------------------------------------

When asked until when Herceg-Bosna would function he replied as follows;

"No deadline could be set. That will depend on the overall process. When all the rights of the Croat people are ensured and then the Federation becomes capable of taking over those functions that Herceg-Bosna has, then Herceg-Bosna will be reshaped, probably into a political community."FN29

------------------------------------------------------------------------------------------------------------
FN29 ibid.
------------------------------------------------------------------------------------------------------------

The words of the Croat President Tudjman, one of the participants in the Dayton Conference, imply that revival of the Federation was one of the aims of the Conference. In the Report on the state of the Croatian State and Nations in 1995, Mr. Tudjman mentioned, inter alia, that:

"The international proponents attach special significance to the Federation, within their concept of peace and new order in this area, as testified by the fact that the Agreement on implementation of B-H Federation, signed by the representatives of Croatian and Muslim-[p 678]Boshniak people, was endorsed by representatives of USA, European Union and Germany."FN30

------------------------------------------------------------------------------------------------------------
FN30 Vjesnik, Zagreb, 2 January 1996 (emphasis added).
------------------------------------------------------------------------------------------------------------

It seems that only the Dayton Agreement and the political will that gave birth to them, encouraged serious steps towards actual constitution of the Muslim-Croat Federation.

On 14 January 1996, a couple of months after the signing of the Dayton Agreement and almost two years after the proclamation of the Croat-Muslim Federation, the "Presidency of the Croatian Democratic Union for B-H" adopted a decision on the establishment of the Croatian community of Herceg-Bosna as a political, economic and cultural community of Croatian people in Bosnia and Herzegovina. Within its option for a thorough implementation of the Dayton Agreement, the Presidency of the Croat Democratic Community (HDZ) of Bosnia and Herzegovina also passed a resolution on the progressive transfer of the function of executive authority of the Croatian Republic of Herceg-Bosna to the authorities of the Federation of Bosnia and Herzegovina. Members of the HDZ Presidency of Bosnia and Herzegovina also called on the Muslim counterpart in the Federation to start transferring the authority to the organs of the FederationFN31.

---------------------------------------------------------------------------------------------------------------------
FN31 Vecernji List, Zagreb, 15 January 1996.
---------------------------------------------------------------------------------------------------------------------

The Government of the Federation was established as late as 31 January 1996. President of the Federation Mr. K. Zubak, in his address to the Constitutional Assembly stressed, inter alia, that "by transferring authority from the Republic to the Government of the Federation the functions of Herceg-Bosna will be transferred to the Federation "FN32.

---------------------------------------------------------------------------------------------------------------------
FN32 Borba, Belgrade, 1 February 1996 (emphasis added).
---------------------------------------------------------------------------------------------------------------------

As Le Monde reported:

"The Croat separatists in Bosnia announced on Saturday 15 June that they were forming a new government for their 'independent State of Herzeg-Bosna'. In principle, all the institutions of this self-proclaimed State should have disappeared with the advent of the institutions of the Croat-Muslim Federation."FN33

------------------------------------------------------------------------------------------------------------
FN33 Le Monde, Tuesday 18 June 1996/3. [Translation by the Registry.]
------------------------------------------------------------------------------------------------------------

Hence, the political project of promotion of Muslim-Croat Federation in Bosnia and Herzegovina, incorporated in the Washington Agreement of 1993, has not materialized. Muslim and Croat State entities continued to function after the agreement as de facto States, which from time to time kept entering into a sort of political and military co-ordination for the sake of pragmatic political aims. But that co-operation was, according to its inherent characteristics, a co-operation between State entities.[p 679]

In the light of the Dayton Agreement, promotion of the Federation is a political and contractual obligation, thus in view of the present state of affairs, it could be said that the Federation is a State entity in statu nascendí.

The qualification "self-proclaimed" which is usually attached to the Republic of Srpska and Herceg-Bosna can hardly have any legal effect. According to its original, grammatical meaning, it denotes the obvious fact that no-one can "proclaim" a newly emerging State except itself— in that sense every newly emerging State is "self-procl aimed". The heart of the matter is therefore, not whether a new State is "self-proclaimed" or is proclaimed by a second or third party, but whether the proclamation is based on fact and the law.
This qualification can have legal meaning only within the reasoning of constitutive theory on the recognition of States as a condition of their emergence or in the neoconstitutive practice of the application of the ruling, declarative theory.

21. Bosnia and Herzegovina as a State within the administrative borders of the former federal administrative unit, bearing the name of the former federal unit, could only be discussed, so to speak, after the enforcement of the Dayton Agreements. A precise qualification of Bosnia and Herzegovina in these terms may be given only after a global analysis of the contents of the above-mentioned Agreements.

22. The "Dayton Agreements" as a collective name for a series of agreements, are endowed with ambivalent legal faculties.

In formal terms, the fundamental part of the Agreements should be the General Framework Agreement for Peace in Bosnia and Herzegovina. Such a conclusion is imposed by the fact that other agreements were qualified as annexes to the General Framework Agreement (Agreement on the Military Aspects of the Peace Settlement; Agreement on Regional Stabilization; Agreement on Inter-Entity Boundary Line and Related Issues; Agreement on Elections; Agreement on Arbitration; Agreement on Human Rights; Agreement on Refugees and Displaced Persons; Agreement on the Commission to Preserve National Monuments; Agreement on the Establishment of Bosnia and Herzegovina Public Corporations; Agreement on Civilian Implementation; Agreement on International Police Task Force), with the exception of the Agreement on Initialling the General Framework Agreement for Peace in Bosnia and Herzegovina. The contents of the General Framework Agreement, on the one hand, and the rest of the Agreements, drawn up in the form of annexes, on the other, suggest that the main commitments conducive to a comprehensive settlement to bring an end to the tragic conflict in the region, as stated in the General Framework Agreement, are contained in those annexes.

The General Framework Agreement, by its nature, is a specific combination of elements of political declarations and elements relative to guarantees which resemble an international treaty, stricto sensu, conceived as an act creating reciprocal rights and obligations of the parties thereto. The elements characteristic of political declarations are reflected in [p 680] the provisions in a series of the General Framework Agreement Articles (Arts. II, III. IV, V, VI, VII and IX) whereby the parties only welcome and endorse arrangements stipulated in the Annexes to the General Framework Agreement. The only Articles of the General Framework Agreement binding on the parties in a way suitable to international treaties, stricto sensu, are Articles I and VII. True, most of the Articles mentioned above include a standard form of words providing that "[t]he parties shall fully respect and promote fulfilment of the commitments made" but the meaning of such a wording, in terms of the contents of Article I of the Genera! Framework Agreement and the nature of those commitments is, at least when SFY and Croatia are referred to, more of a sort of a guarantee that the parties to the Agreements, specified as Annexes, will implement the undertakings, rather than constituting a binding obligation. Particularly significant in that regard, apart from the above-mentioned standard wording in the Annexes, is the Agreement on Initialling the General Framework Agreement for Peace in Bosnia and Herzegovina. By that Agreement, which is not formally an annex to the General Framework Agreement, "[t]he Parties [the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia], and the Entities that they represent, commit themselves to signature of these Agree-ments" (Art. I). It provides that the very implementation of the General Framework Agreement and its Annexes is to be entrusted to the Joint Interim Commission composed of representatives of the Bosnia and Herzegovina Federation, Republic Srpska, Bosnia-Herzegovina Republic. The position of the Bosnia-Herzegovina Republic, as a contracting party, is specific in this context, as the Republic of Bosnia and Herzegovina, by virtue of Article I (3) of the Constitution "shall consist of the two Entities, the Federation of Bosnia and Herzegovina and the Republic Srpska (hereinafter 'the Entities')" (emphasis added). Hence the entities figuring in the structure of the Dayton Agreements, in Annex 4 to the Agreements, are the parties; therefore, in the light of relevant conditions for constitution of the Bosnia-Herzegovina Republic as a State within the administrative borders of that former federal unit, it follows that the Bosnia-Herzegovina Republic guarantees the obligations of the entities to constitute it. This discrepancy results from the premise of an unbroken legal personality of Bosnia and Herzegovina under international law as a State — which is of dubious legal validity (see para. 23 below).

Hence it may be said that the Annexes constitute the essential substance of the Dayton Agreements, while the General Framework Agreement, as implied by its very name, constitutes a legal-political framework integrating the regulatory contents of the Annexes. The parties to the "General Framework Agreement" are, as stated in the Preamble, "[t]he Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia". The parties to the Agreement's Annexes are, however, different. The Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republic of Srpska are, either alone or together with Croatia and Yugoslavia, parties to most of [p 681] the Annexes. The three aforementioned parties signed the Agreement on the Military Aspects of the Peace Settlement; Agreement on Inter-Entity Boundary Line and Related Issues; Agreement on Elections; Agreement on Refugees and Displaced Persons; Agreement on Commission to Preserve National Monuments; and Agreement on International Police Task Force. Together with the Republic of Croatia and the Federal Republic of Yugoslavia, the three parties figure as parties to the Agreement on Regional Stabilization and the Agreement on Civilian Implementation of the Peace Settlement. The Federation of Bosnia and Herzegovina and the Republic of Srpska are parties to the Agreement on Establishment of Bosnia and Herzegovina Public Corporations and the Agreement on Arbitration. The Constitution of the Republic of Bosnia and Herzegovina is also an integral part of the Dayton Agreements. It is designed in the form of Annex 4 of the Agreement and is approved by respective declarations of the Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republic Srpska.

23. In the light of the contents of the Dayton Agreements and in particular in the light of the current state of affairs, Bosnia and Herzegovina may be qualified in terms of international law as a State in statu nascendi. At the time of the entry into force of the Dayton Agreements, the Republic of Bosnia and Herzegovina, as a State within the administrative borders of the former Yugoslav federal unit of the same name, possessed literally no relevant attribute of a State in terms of international law. More particularly:

(a) The Republic of Bosnia and Herzegovina has no central State authorities to this day. Annex 4 (Constitution of Bosnia and Herzegovina) to the Dayton Agreements stipulates in Articles IV, V, VI and VII joint authorities in the form of a Parliamentary Assembly, a Presidency, a Council of Ministers, a Constitutional Court and a Central Bank, but the Constitution is conditioned upon "free, fair, and democratic elections" as a basis for a representative governmentFN34. In keeping with the provision of Article 4 of "Transitional Arrangements", joined in the form of Annex II to the Constitution, "[u]ntil superseded by applicable agreement or law, governmental offices, institutions, and other bodies of Bosnia and Herzegovina will operate in accordance with applicable law"FN35. Systematically interpreted, the above-mentioned provision implies that governmental offices, institutions and other bodies of the entities in the territory of Bosnia and Herzegovina "will operate in accordance with applicable law";

---------------------------------------------------------------------------------------------------------------------
FN34 Preamble of the Agreement on Elections, doc. A/50/790-S/1995/999, p. 53.
FN35 Ibid., p. 76.
---------------------------------------------------------------------------------------------------------------------

(b) The Republic of Bosnia and Herzegovina up to the present time has possessed no coherent legislation of its own. True, the Constitution of the Republic as a supreme legal act has come into force but [p 682]

"[a]ll laws, regulations and judicial rules of procedure in effect within the territory of Bosnia and Herzegovina when the Constitution enters into force shall remain in effect to the extent not inconsistent with the Constitution, until otherwise determined by a competent governmental body of Bosnia and Herzegovina"FN36;

------------------------------------------------------------------------------------------------------------
FN36 Doc, A/50/790-S/1995/999, Transitional Arrangements, Art. 2, p. 76.
------------------------------------------------------------------------------------------------------------

(c) The Republic of Bosnia and Herzegovina has no single judicial system or administrative procedure. This fact is also formally endorsed by Article 3 of the "Transitional Arrangements", which states:

"[a]ll proceedings in courts or administrative agencies functioning within the territory of Bosnia and Herzegovina when the Constitution enters into force shall continue in or be transferred to other courts or agencies in Bosnia and Herzegovina in accordance with any legislation governing the competence of such courts or agencies"FN37;

------------------------------------------------------------------------------------------------------------
FN37 Ibid., Art. 3.
------------------------------------------------------------------------------------------------------------

(d) The Republic of Bosnia and Herzegovina has no armed force of its own. Moreover, a joint army is not an institution of a central authority, since it does not figure as one of the responsibilities of the Peace Settlement and the Agreement on Regional Stabilization, which are relevant in this matter. By their wording and their content they resemble the agreements among sovereign, independent States on confidence and security building measures, rather than agree-ments among entities within one State. The main purpose of the obligations entered into under the Agreement on the Military Aspects of the Peace Settlement relate to the establishment of a durable cessation of hostilities, which implies that

"[n]either Entity shall threaten or use force against the other Entity, and under no circumstances shall any armed forces of either Entity enter into or stay within the territory of the other Entity without the consent of the government of the latter and of the Presidency of Bosnia and Herzegovina"

and that "lasting security and arms control measures . . . which aim to promote a permanent reconciliation between all Parties" are to be establishedFN38. The Agreement on Regional Stabilization, however, provided for a general obligation of establishment of progressive measures for regional stability and arms control by achieving balances and stable defence force levels at the constant numbers consistent with the parties' respective security and the need to avoid an arms race in the regionFN39;

---------------------------------------------------------------------------------------------------------------------
FN38 Ibid.. Art. I (2) (a), (c), p. 8.
FN39 Ibid., p. 2.
---------------------------------------------------------------------------------------------------------------------

[p 683]
(e) The Republic of Bosnia and Herzegovina does not have its own police force. The competence of the police forces of the entities is limited ratione loci. Only the International Police Task Force, established under the corresponding Agreement marked as Annex 11, is authorized, in keeping with its tasks laid down in Article III of the Agreement, to act throughout the Republic of Bosnia and Herzegovina,

Of the relevant conditions for statehood of Bosnia and Herzegovina within its administrative borders, only the condition concerning the contractually determined administrative borders of Bosnia and Herzegovina as the internationally recognized ones, has been fully metFN40.

---------------------------------------------------------------------------------------------------------------------
FN40 Article X of the General Framework Agreement for Peace in Bosnia and Herzegovina.
---------------------------------------------------------------------------------------------------------------------

24. In the light of the foregoing it may be said that the relevant factual and legal status of Bosnia and Herzegovina as a State within the administrative borders of the same ex-federal unit, may be defined as a political project of the organized international community, whose materialization was transformed by the Dayton Agreements into a binding obligation of the parties to the Agreements. The fact that this is more a contractual obligation to establish Bosnia and Herzegovina as a State than a consecration of the current state of affairs is testified to by the nature of the Constitution of the Republic of Bosnia and Herzegovina. As it stands, it is not, stricto sensu, a constitution, that is, an act of the internal constitution-making authority, but is an international treaty incorporating the text of the Constitution. The term "party" denotes a State which has consented to be bound by the treaty and for which the treaty is in forceFN41. By virtue of Article 2 (a) of the Convention on the Law of Treaties,

---------------------------------------------------------------------------------------------------------------------
FN41 Convention on the Law or Treaties, 1969, Art. 2 (9).
---------------------------------------------------------------------------------------------------------------------

" 'treaty' means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation".

In other words, underlying the title "Constitution of Bosnia and Herzegovina" is a treaty of two State entities — the Federation of Bosnia and Herzegovina and the Republika Srpska — to establish a State within the administrative borders of the former federal unit of Bosnia and Herzegovina, since "[e]very State possesses capacity to conclude treaties"FN42.

---------------------------------------------------------------------------------------------------------------------
FN42 Ibid., Art. 6.
---------------------------------------------------------------------------------------------------------------------

Moreover, the personality of one of the parties — the Federation of Bosnia and Herzegovina — possesses elements of political fiction that considerably outweigh the real attributes of statehood (see para. 19 above). Hence, in a broader context, the global contractual obligation to establish Bosnia and Herzegovina within its administrative borders also covers the materialization of a separate contractual obligation undertaken by [p 684] the Croat and Muslim state entities in Bosnia and Herzegovina under the Washington agreement — the obligation to form the Federation of Bosnia and Herzegovina.

At present, an absence of the crucial State elements in terms of international law makes Bosnia and Herzegovina within its administrative borders a State sui generis: a combination of a contractual relationship of two entities with a strongly installed element of an international pro-tectorate. This status is expressed at two levels, that is

(a) the factual level, as reflected in the position of IFOR. These forces are, by definition, a "multinational military Implementation Force"FN43 deployed to Bosnia and Herzegovina to "help ensure compliance with the provisions of this Agreement"FN44. IFOR is not only one armed force which shall "have complete and unimpeded freedom of movement by ground, air, and water throughout Bosnia and Herzegovina"FN45 but is even authorized to "take such actions as required, including the use of necessary force, to ensure compliance with this Annex, and to ensure its own protection"FN46;

---------------------------------------------------------------------------------------------------------------------
FN43 Article 1 of the Agreement on the Military Aspects of the Peace Settlement, doc. A/50/790/S/1995/999, p. 7.
FN44 Ibid.
FN45 Ibid., p. 19.
FN46 Ibid., p. 8.
---------------------------------------------------------------------------------------------------------------------

(b) the legal level, since particularly relevant provisions of Article VI of the Constitution of Bosnia and Herzegovina (Constitutional Court), which is an inherently adjudicative body which has "exclusive jurisdiction to decide any dispute that arises under this Constitution between the Entities or between Bosnia and Herzegovina and an Entity or Entities, or between institutions of Bosnia and Herzegovina" FN47. Paragraph 1 of the above-mentioned Article provides for the composition of the Court in the following way:

"The Constitutional Court of Bosnia and Herzegovina shall have nine members.

(a) Four members shall be selected by the House of Representatives of the Federation, and two members by the Assembly of the Republika Srpska. The remaining three members shall be selected by the President of the European Court of Human Rights after consultation with the Presidency."FN48

------------------------------------------------------------------------------------------------------------
FN48 ibid., p. 70.
------------------------------------------------------------------------------------------------------------

It is, therefore, beyond any doubt that the election of one-third of the members of the court is not in any way influenced by the Presidency of the Republic of Bosnia and Herzegovina or by any other organ of the [p 685] Republic or Entities, in practical terras, given the fact that consultation per definitionem has no binding force.

The provisions relating to the competence of the International Police Task Force can be mentioned among others. The competences of these forces cover, inter alia, the "monitoring, observing and inspecting [of] law enforcement activities and facilities, including associated judicial organizations, structures, and proceedings"FN49. The real range of these powers in the context of suprema potestas of the Republic of Bosnia and Herzegovina becomes clear in view of the provisions of Article VII of the Agreement which defines law enforcement agencies as those involved in law enforcement, criminal investigations, public and State security, or detention or judicial activitiesFN50.

---------------------------------------------------------------------------------------------------------------------
FN49 Article III. 1 (a) of the Agreement on International Police Task Force, doc. A/50/ 790/S/1995/999, p. 118.
FN50 Ibid., Art. VII, p. 120.
---------------------------------------------------------------------------------------------------------------------

The elements of international protectorate moreover possess a twofold significance. On the one hand, they are, especially when the composition of the Constitutional Court is concerned, an integral part of the State structure of Bosnia and Herzegovina, construed by the Dayton Agree-ments, while on the other, they serve to guarantee enforcement obligations entered into by the entities under the agreements,
25. There is an essential analogy between the Republic of Bosnia and Herzegovina and Finland after its proclamation of independence on 4 December 1917. Since the Permanent Court of International Justice did not exist at the time, an opinion on the status of Finland was requested of the International Committee of Jurists. In its Report the Committee noted, inter alia, that:

"Certain elements essential to the existence of a state, even some elements of fact, were lacking for a fairly considerable period. Political and social life was disorganized; the authorities were not strong enough to assert themselves, civil war was rife; further the Diet, the legality of which had been disputed by a large section of the people, had been dispersed by the revolutionary party . . . the armed camps and the police were divided into two opposing forces . . . It is, therefore, difficult to say at what exact date the Finnish Republic, in the legal sense of the term, actually became a definitely constituted sovereign state. This certainly did not take place until stable political organization had been created, and until the public authorities had become strong enough to assert themselves throughout the territories of the state without the assistance of foreign troops."FN51

------------------------------------------------------------------------------------------------------------
FN51 Report by the International Committee of Jurists (Larnoude (President), Struycken, Huber), Official Journal of the League of Nations, Spec. Supp. No. 3 (1920), p. 8.
------------------------------------------------------------------------------------------------------------

As Warren Christopher, the United States Secretary of State, noted: [p 686]

"Without elections, there will be no unified Bosnia state, no national constitution or judiciary and little hope for greater cooperation among Bosnia's diverse communities."FN52

------------------------------------------------------------------------------------------------------------
FN52 "Without Elections, There Will Be No Unified Bosnian State", International Herald Tribune, 15-16 June 1996, p. 6.
-----------------------------------------------------------------------------------------------------------

26. The recognition of Bosnia and Herzegovina is frequently, explicitly or implicitly, used as an argument in support of the existence of Bosnia and Herzegovina as a sovereign and independent State within the administrative boundaries of the former Yugoslav federal unit.
Such an approach is somewhat surprising, since "the State exists by itself (par lui-même) and the recognition of a State is nothing else than a declaration of this existence, recognized by the States from which it emanates"FN53.

---------------------------------------------------------------------------------------------------------------------
FN53 " Deutsche Continental Gas-Gesselschaft v. Polish State, 5 AD 11 at p. 15 (1929-1930).
---------------------------------------------------------------------------------------------------------------------

This is specially so, having in mind that "the practice of States shows that the act of recognition is still regarded as essentially a political decision, which each State decides in accordance with its own free appreciation of the situation"FN54.

---------------------------------------------------------------------------------------------------------------------
FN54 United Nations Secretariat Memorandum of February 1950 concerning the question of representation of Members in the United Nations, United Nations doc. S/1466, SCOR, 5th Year, Supp. for Jan./May 1950, p. 19.
---------------------------------------------------------------------------------------------------------------------

It is reasonable to suppose that, merely by relying on these facts, the learned scholar is able to conclude that "[r]ecognition is still in the language of diplomats but it does not belong in the language of law"FN55.

---------------------------------------------------------------------------------------------------------------------
FN55 L. Henkin, "General Course on Public International Law", Recueil des cours de l'Académie de droit international de La Haye, Vol. 216, 1989, p. 31.
---------------------------------------------------------------------------------------------------------------------

It is true that the position of Bosnia and Herzegovina is a specific one, since it has been recognized by practically the whole international community. This fact serves as the basis for the thesis that

"recognition, along with membership of international organizations, bears witness to these States' conviction that the political entity so recognized is a reality and confers on it certain rights and obligations under international law"FN56.

------------------------------------------------------------------------------------------------------------
FN56 Statement of the Government of the Republic of Bosnia and Herzegovina on Pre-liminary Objections, para, 4.14.
------------------------------------------------------------------------------------------------------------

This, in doctrinal terms, elegant thesis highlights among other things, the ambivalent nature of the institute of recognition of States. In the spirit of the ruling, declarative theory, the recognition of States should be a statement of the factual situation formed leges artis in harmony with the relevant legal rules on the emergence of new States. The "States' conviction that the political entity ... is a reality" clearly need not correspond to the factual situation. "Conviction", per definitionem, is not a [p 687] factual condition but its subjective expression — hence it is necessary ad casum to carry out an investigation so as to establish the precise meaning of the phrase "States' conviction" and to see whether or not it is based on fact or law. A contrario, the whole problem would be shifted to the domain of the rule of "majority opinion", so that fact would be what the majority considers it to be.

Having that in mind, it is, generally speaking, necessary from the standpoint of law to examine in each individual case whether the relevant legal criteria for recognition are met.

Concerning Bosnia and Herzegovina, it is obvious that, as an assumed State in the administrative boundaries of that former Yugoslav federal unit, it could he ranked among the circle of States only as a new State. Hence, it is necessary to see which criteria are relevant for the recognition of new States.

The essence of those criteria may be taken to be expressed in paragraph 100 (Minimum Requirements for Recognition of New States) of the Restatement of the Law:

"Before recognizing an entity as a new state, the recognizing state is required to make a determination, reasonably based upon fact, that the entity:

(a) has a defined territory and population;

(b) is under the control of a regime that satisfies the mínimum requirements for recognition as a government under [paragraph] 101;

(c) has the capacity to engage in foreign relations;

(d) shows reasonable indications that the requirements of Clauses (a)-(c) will continue to be satisfied."FN57

------------------------------------------------------------------------------------------------------------
FN57American Law Institute, Restatement of the Law. Second. Foreign Relations Law of the United States, 1965, p. 321.
------------------------------------------------------------------------------------------------------------

Paragraph 101 stipulates:

"Before recognizing a revolutionary regime as a government of a state, the recognizing state is required to make a determination, reasonably based upon fact, that the regime

(a) is in control of the territory and population of the state; or


(b) is in control of a substantial part of the territory and population of the state and shows reasonable promise that it will succeed in displacing the previous government in the territory of the state."FN58

------------------------------------------------------------------------------------------------------------
FN58 Ibid, p. 322.
------------------------------------------------------------------------------------------------------------

The cited criteria are, as a whole, applicable to the case of Bosnia and Herzegovina. In such an assessment, it is decisive that [p 688]

"Recognition of a government becomes a problem for decision only if an abnormal change of government is involved, i.e., one in violation of the existing constitution of a state."FN59

------------------------------------------------------------------------------------------------------------
FN59 American Law Institute, Restatement of the Law, Second, Foreign Relations Law of the United States, p. 323.
------------------------------------------------------------------------------------------------------------

Bosnia and Herzegovina did not meet the relevant criteria for recognition in the static or dynamic sense. More particularly, at the time of recognition, not only did it not have a "defined territory and population" (see paras. 6-9 above) nor, in particular, "control of a substantial part of the territory and population" (see para. 18 above) but there were no "reasonable indications" that it could fulfil those requirements in the future without active external support. Even Bosnia and Herzegovina itself in the "Second Request for Indication of Provisional Measures of Protection" of 27 July 1993 notes at the end of its submission: "[t]his will be the last opportunity that this Court shall have to save . . . [the] State of Bosnia and Herzegovina" (p. 55). The "Minimum Requirements for the Recognition of New States", as presented, should definitely be complemented with legal requirements as well since "the development of self-determination [is] an additional criterion of statehood, denial of which" would obviate statehoodFN60.

---------------------------------------------------------------------------------------------------------------------
FN60 M. N. Shaw, International Law, 2nd ed., 1986, p. 132.
---------------------------------------------------------------------------------------------------------------------

These additional criteria strengthen the grounds for the conclusion that the recognition of Bosnia and Herzegovina was granted on an exclusively political basis. Also, the "Guidelines on the recognition of new States in Eastern Europe and in the Soviet Union", on the basis of which Bosnia and Herzegovina was recognized by the European Community and its member States, and the discussions in the United Nations Organization at the time of the admission of Bosnia and Herzegovina, indicate that in the realm of law, recognition was granted on the grounds of the right of peoples to self-determination even though, in this particular case, its application is at the very least doubtful (see paras. 44-76 below).

In other words, the recognition of Bosnia and Herzegovina as an independent State was inspired more by the interests of national politics and opportuneness than by the existence of relevant legal principles in regard to this matter. The recognition of Bosnia and Herzegovina was, essen-tially, one of the instruments for the realization of the political concept on the settlement of the Yugoslav crisis, an instrument which reflected the internal logic of that concept independently of the relevant legal rules. The instrumental nature of the recognition in the Yugoslav case was pointed out by Ambassador Brown:

"Lord Carrington, who chaired the Conference on Yugoslavia . . . believed that recognition was an important weapon in bringing the [p 689] sides together. Recognition could be an incentive for cooperation or a sanction for lack of cooperation." FN61

------------------------------------------------------------------------------------------------------------
FN61 E. G. Brown, "Force and Diplomacy in Yugoslavia: the U.S. Interest", American Foreign Policy Newsletter, Vol. 15, No. 4, August 1993, p. 2.
------------------------------------------------------------------------------------------------------------


This is particularly conspicuous in the "Declaration on Yugoslavia" of 16 December 1991 which together with the "Guidelines on the recognition of new States in Eastern Europe and the Soviet Union", passed on the same day by the EC Ministerial Council, served as a basis for the recognition of Bosnia and Herzegovina by the European Community and its member States. By their Declaration, the EC and its member States invited

"all Yugoslav Republics to state by 23 December whether:

— they wish to be recognized as independent States;

— they accept the commitments contained in the above-mentioned guidelines;

— they accept the provisions laid down in the Draft Convention — especially those in Chapter II on human rights and rights of national or ethnic groups — under consideration by the Conference on Yugoslavia."FN62

------------------------------------------------------------------------------------------------------------
FN62European Political Co-operation, Press Release, 17 December 1991 (emphasis added).
------------------------------------------------------------------------------------------------------------

Bosnia and Herzegovina therefore, together with the other federal units of SFRY, was invited to state whether it wished to be recognized as an independent State. The invitation was made at a time when the desire for independence had still not been expressed in the appropriate way in Bosnia and Herzegovina. The referendum on the status of Bosnia and Herzegovina at which two out of the three peoples of Bosnia and Herzegovina declared themselves in favour of the "sovereignty and independence of Bosnia and Herzegovina" was not held until March 1992. It is hard to assume that such an invitation, extended by a body which had offered its good services and mediation in dealing with the Yugoslav crisis, could have had no effect on the political options taken in Bosnia and Herzegovina, particularly if the invitation to recognition is linked with the terms for recognition which, inter alia, included the acceptance of "the provisions laid down in the Draft Convention . . . under consideration by the Conference on Yugoslavia", The key provision of the "Draft Convention" which the Conference Chairman Lord Carrington presented to the Conference on 23 October 1991 is contained in Article I which reads:

"The new relations between the Republics will be based on the following:

(a) sovereign and independent Republics with an international personality for those which wish it; [p 690]

(b) a free association of the Republics with an international personality as envisaged in this Convention;
(c) comprehensive arrangements, including supervisory mechanisms for the protection of human rights and special status for certain groups and areas;
………………………………………………………………………………………………
(d) in the framework of general settlement, recognition of the independence, within the existing borders, unless otherwise agreed, of those Republics wishing it."

The relevant circumstances show that there existed a connection between recognition and the dismemberment of the SFRY along the seams of the administrative division into federal units as provided for by Article 1 (a) of the Draft Convention. That concept, which included the automatic substitution for the personality of the SFRY of the personality of the federal units, reflected the value judgment of the "Declaration on Yugoslavia" of 16 December 1991, on the basis of which its contents were designed. There can be no other explanation for certain formula-tions contained in the Declaration — exempli causa, those according to which the European Community and its member States "will not recognize entities which are the result of aggression". Aggression per defini-tionem is the

"use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations"FN63.

------------------------------------------------------------------------------------------------------------
FN63 Art. 1, General Assembly resolution 3314 (XXIX) of 14 December 1974 (emphasis added).
------------------------------------------------------------------------------------------------------------

In fact, there are certain indications that the presentation of the Draft Convention by the providers of good offices and mediators was the expression of a political decision on the transformation of Yugoslav federal units into sovereign States. The EPC statement of 6 October 1991 emphasized that

"it was agreed that a political solution should be sought in the perspective of recognition of the independence of those republics wishing it, at the end of the negotiating process conducted in good faith and involving all parties".

A further indication is the actual title of the document — the term "Convention" denotes an "agreement between states in the sense of international law". The Convention on the Law of Treaties (1969), lex lata in this area, stipulates in Article 2 that a "Treaty" represents "an interna-tional agreement concluded between States in written form and governed by international law . . . whatever its particular designation". Article 6 of the Convention stipulates that "[e]very State possesses capacity to conclude treaties". [p 691] Testifying to such a nature of the recognition of independence of the Yugoslav federal units is the linkage of recognition with practical political aims. The United States-European Community Declaration on the recognition of the Yugoslav republics states inter alia:

"The Community and its member States and the United States have agreed to coordinate their approaches to completing the process of recognizing those Yugoslav republics that seek independence.


(i) that the United States will, in this context, give rapid and positive consideration to the requests for recognition by Croatia and Slovenia in such a way as to support the dual-track approach based on the deployment of the UN peacekeeping force and the European Community Peace Conference chaired by Lord Car-rington.

(ii) that positive consideration should be given to the requests for recognition of the other two republics, contingent on the resolution of the remaining European Community questions relating to those two republics. In this context, they strongly urge all parties in Bosnia-Herzegovina to adopt without delay constitutional arrangements that will provide for a peaceful and harmonious development of this republic within its existing borders. The Community and its member States and the United States also agree strongly to oppose any effort to undermine the stability and territorial integrity of those two republics."

In connection with the recognition of Bosnia and Herzegovina as an independent State within the administrative boundaries of the former federal unit, at least two conclusions have to be drawn:

(a) phenomenologically, in this case, the recognition of Bosnia and Herzegovina did not follow the natural logic of the legal process of recognition, namely, that it should be a passive acknowledgment of the establishment of the State. In the case of Bosnia and Herzegovina, the recognition, as testified to by developments, was one of the instruments for the establishment of Bosnia and Herzegovina as a State within its administrative boundaries. The recognizing States, by recognizing Bosnia and Herzegovina, actually demonstrated their intention to create it or to participate in its creation;

(b)legally, the recognition of Bosnia and Herzegovina within its administrative boundaries represented the recognition of a non-existent State. It was granted exclusively on the basis of political considerations since, at the moment of recognition, Bosnia and Herzegovina did not fulfil the minimum requirements for recognition as a new State.[p 692] Moreover, having in mind the importance of self-determination of peoples as a criterion in the decision regarding statehoodFN64, it may be concluded that the admission of Bosnia and Herzegovina to the United Nations was an act of diplomacy which runs counter to the established practice of the Organization in that regard.

---------------------------------------------------------------------------------------------------------------------
FN64 J. Dugard, Recognition and the United Nations, 1987, p. 79.
---------------------------------------------------------------------------------------------------------------------

Second Preliminary Objection

27. The position of the Court regarding the second preliminary objection raised by Yugoslavia is based on two premises:
(i) that it "does not, in order to rule on that objection, have to consider the provisions of domestic law which were invoked in the course of the proceedings either in support of or in opposition to that objection", since "[a]ccording to international law, there is no doubt that every Head of State is presumed to be able to act on behalf of the State in its international relations", and

(ii) that, "Mr. Izetbegovic was recognized, in particular by the United Nations, as the Head of State" and that "his status as Head of State continued subsequently to be recognized in many international bodies and several international agreements" (Judgment, para. 44).

My views on the matter are very different. The Application like that of Bosnia and Herzegovina instituting proceedings before the Court constitutes a typical unilateral act of the State producing legal consequences for the mutual relations among the parties to the Genocide Convention, Hence the Court is authorized to consider the relevant provisions of Bosnia and Herzegovina's constitutional law, as well as other cases in which the application of a norm of international law was dependent upon internal law) (exempli causa, the Western Griqualand Diamond Deposits case (1871) (2 Recueil des arbitrages internationaux 1856-72, pp. 676-705 (1923)); Cleveland Award (1888) (2 Moore, International Arbitrations 1945-68); the case concerning Free Zones of Upper Savoy and the District of Gex (1932) (P. C.I.J., Series A/B, No. 46); the Fisheries case (I.C.J. Reports 1951, pp . 125-126); the Nottebohm case (I.C.J. Reports 1955, p. 4); the case concerning the Application of the Convention of 1902 Governing the Guardianship of Infants (I.C.J. Reports 1958, pp. 62-66), etc.). In other words, this is not a case of conflict between internal and international law, as, exempli causa, in the Certain German Interests in Polish Upper Silesia or S. S. " Wimbledon" cases, but a matter in which these two laws are in co-ordination, dependent on each other.

In concreto, Yugoslavia claims that Mr. A. Izetbegovic could not have issued an authorization for instituting proceedings before the Court in the present case since: [p 693]

(i) the issue of such authorization was not within the scope of the competence of the President of the Presidency of Bosnia and Herzegovina, and

(ii) at the relevant point in time, Mr. Izetbegovic was not, according to the Constitution of Bosnia and Herzegovina, the President of the Presidency.

It is indisputable that both claims are based primarily on the internal law of Bosnia and Herzegovina so that diagnosing solutions established by the constitutional law of Bosnia and Herzegovina with respect to both questions is essential, albeit in different ways, for the application of the relevant norms of international law. This is indirectly recognized by Bosnia and Herzegovina itself in its request to the Court to:

"take cognizance of the following facts which establish that President Izetbegovic was duly appointed President of the Presidency of Bosnia and Herzegovina and that he exercised his functions in accordance with the relevant constitutional procedures"FN65.

------------------------------------------------------------------------------------------------------------
FN65 Statement of the Government of the Republic of Bosnia and Herzegovina, p. 42, FN66 Case concerning the Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 43.
------------------------------------------------------------------------------------------------------------

In the point under (i) the relevant general legal principle as expressed in Article 46 of the Convention on the Law of Treaties (1969) seeks to strike a relative balance between international and internal law in the form of a modified internationalistic theory (Head of State Theory). The only way for the Court to decide whether this general legal principle is applicable in this specific case is by entering into an examination of the internal law of Bosnia and Herzegovina with a view to establishing whether, when Mr. Izetbegovic granted the authorization to institute proceedings before the Court the internal law of Bosnia and Herzegovina was violated.

The point under (ii) also cannot be resolved without an examination of the internal law of Bosnia and Herzegovina.

There is no denying, as is noted by Bosnia and Herzegovina, that "[n]o rule of international law . . . requires the structure of a State to follow any particular pattern" FN66. It is also beyond dispute that international law, being sovereign and independent of internal law, determines the circle of persons that represent the State in international affairs (this holds good regardless of the fact that the circle of persons representing the State in foro externo is determined on the basis of virtually identical constitutional regulations). However, sedes materiae the point under (ii) raised in the second preliminary objection does not question the right of Mr. Alija Izetbegovic, as Head of State, and in conformity with international law, to issue an authorization for the institution of proceedings before the Court but rather questions whether Mr. Izetbegovic was, at the relevant point in time, i.e., at the time of issuing of the authorization in question, [p 694] the Head of State. The only way to answer this question raised in the second preliminary objection is by examining the internal, constitutional law of Bosnia and Herzegovina. A contrario, the relevant norm of international law would be the one determining not only the pattern of the structure of a State but also the modalities of the Constitution and the duration of that structural pattern.

28. On the second day of the hearing regarding the first request for the indication of provisional measures, the Agent of Bosnia and Herzegovina pointed out inter alia that:

"President Izetbegovic personally accredited . . . Ambassador Sacirbey, who appeared before you yesterday, and me as General Agents with Extraordinary and Plenipotentiary Powers to the Court on behalf of Bosnia and Herzegovina."FN67

------------------------------------------------------------------------------------------------------------
FN67 CR 93/13, p. 38 (emphasis added).
------------------------------------------------------------------------------------------------------------

That the statements of the then Agent of Bosnia and Herzegovina correspond to the factual situation is confirmed by the text of the act on the appointment of

"H.E. Muhamed Sacirbey, our Ambassador and Permanent Representative to the United Nations, and Francis A. Boyle, Professor of International Law at the University of Illinois College ... to be our General Agents with Extraordinary and Plenipotentiary Powers to institute, conduct and defend against any and all legal proceedings on our behalf before the International Court of Justice."

The text of this act was signed, as stated in the act, by "Alija Izetbegovic, President of the Republic of Bosnia and Herzegovina". The title "President of the Republic of Bosnia and Herzegovina" indicates unequivocally the personal nature of President Izetbegovic's accreditation — particularly so as, contrary to the practice of the Presidency of Bosnia and Herzegovina, it is not stated in the text that it is an act of the Presidency FN68. The fact that the act was written "on the official stationery of the Presidency" cannot, in my opinion, be taken as proof that the act was issued in the name of the Presidency of Bosnia and Herzegovina. The use of official stationery is only prima facie grounds for the assumption that what is written on it is an act of the organ whose name appears in the heading. The assumption is refutable as official stationery is only the external sign of identification of its owner, incorporates the decision of [p 695] the organ as well, and depends on whether in each concrete case the formal and material conditions for issuing the act written on the official stationery have been met. A contrario it would be absurd to assume that every text written on the official stationery of an organ constitutes ipso facto an act of that organ.

---------------------------------------------------------------------------------------------------------------------
FN68 Exempli causa, the Decree on the change of name of the Socialist Republic of Bosnia and Herzegovina (Statement of the Government of the Republic of Bosnia and Herzegovina on Preliminary Objections, Annexes, Vol. I, Ann. 2.12) was issued by the "Presidency of the Socialist Republic of Bosnia and Herzegovina at a session held on April 8, 1992", and signed by the "President of the Presidency of SR B-H Alija Izetbegovic". An identical example is the Decision on the proclamation of an imminent threat of war passed on the same day, as well as all the other published acts of the Presidency of Bosnia and Herzegovina.
---------------------------------------------------------------------------------------------------------------------

In concrete, the question may be posed whether the stationery on which Mr. Izetbegovic gave the authorization for instituting proceedings before the Court is without any doubt the only official stationery of the Presidency of the Republic of Bosnia and Herzegovina. The grounds for raising this question are provided by the fact that the word "Presidency" on the stationery heading is found underneath the name of the State — "Republic of Bosnia and Herzegovina" — and above the word "President". The word "Presidency" can also be taken to indicate the headquarters of the President, particularly as Mr. Izetbegovic is described as the "President of the Republic of Bosnia and Herzegovina". The name of the collective Head of State, according to the Constitution of Bosnia and Herzegovina, is not the "Presidency" but the "Presidency of the Republic of Bosnia and Herzegovina" FN69.

---------------------------------------------------------------------------------------------------------------------
FN69 Chapter X of the Constitution of Bosnia and Herzegovina.
---------------------------------------------------------------------------------------------------------------------

Of particular importance is the fact that in contravention of Article 10 of the Operating Procedure of the Presidency and its customary practice, the letter signed by Mr. Alija Izetbegovic does not feature any stamp (either the small or the large one) of the Presidency of Bosnia and Herzegovina.

These several points provide convincing evidence that in this concrete case we are dealing with a "personal accreditation" by Mr. Izetbegovic.

Was President Izetbegovic authorized on the basis of the internal law of the Applicant to personally accredit a "General Agent with extraordinary and plenipotentiary powers to the Court"?

29. The function of the "President of the Republic of Bosnia and Herzegovina" is not established by the Constitution of Bosnia and Herzegovina. Chapter X of the Constitution speaks of the "Presidency of the Republic of Bosnia and Herzegovina" as the organ "representing the Republic of Bosnia and Herzegovina"FN70. The Presidency of the Republic of Bosnia and Herzegovina is the collective Head of State "that operates and decides collectively at meetings and bears collective responsibility for its work"FN71.

---------------------------------------------------------------------------------------------------------------------
FN70 Article 219 (1) of the Constitution of Bosnia and Herzegovina.
FN71 Article 3 of the Rules of Procedure of the Presidency of the Socialist Republic of Bosnia and Herzegovina, Official Gazette of the Socialist Republic of Bosnia and Herzegovina, No. 36 (1990).
---------------------------------------------------------------------------------------------------------------------

The Presidency of the Republic of Bosnia and Herzegovina taken as a whole, as a collegium, is the organ of representation according to the Constitution. The President of the Presidency as the primus inter pares does not exercise any independent political powers. The enactments within the terms of reference of the Presidency of the Republic of Bosnia [p 696] and Herzegovina (decrees, decisions and conclusions as well as regulations with the effect of law in cases stipulated by the Constitution) are adopted by the Presidency of the Republic of Bosnia and Herzegovina as a wholeFN72.

---------------------------------------------------------------------------------------------------------------------
FN72 Article 49 of the Operating Procedure.
---------------------------------------------------------------------------------------------------------------------


696 APPLICATION OF GENOCIDE CONVENTION (DISS. OP. KRECA)



105

The President of the Presidency, on behalf of the Presidency, represents the PresidencyFN73. Of particular interest among the functions of the President of the Presidency listed in Article 22 of the Operating Procedure is the function to "sign acts passed by the Presidency".

---------------------------------------------------------------------------------------------------------------------
FN73 Article 21 of the Operating Procedure.
---------------------------------------------------------------------------------------------------------------------

Consequently, Mr. Izetbegovic, as the President of the Presidency, was not authorized to "personally accredit[ed] ... [a] General Agent with Extraordinary and Plenipotentiary Powers to the Court on behalf of Bosnia and Herzegovina".

30, Yugoslavia claims in its previous objection that at the time at which the authorization for instituting proceedings before the Court was issued (20 March 1993), Mr. Izetbegovic "did not serve as the President of the Republic" and that the "authorization for the initiation and conduct of proceedings was granted in violation of rules of internal law of fundamental significance"FN74.

---------------------------------------------------------------------------------------------------------------------
FN74 Preliminary Objections of Yugoslavia, p. 141, para. A.2.
---------------------------------------------------------------------------------------------------------------------

Bosnia and Herzegovina, on the other hand, finds that

"on 20 March 1993, the time of filing of the present case in the International Court of Justice, the President of the Presidency exercised their functions lawfully, in accordance with the relevant constitutional provisions, including those relating to a state of war or emergency. As President of the Presidency, President Izetbegovic is legally entitled to represent the Republic of Bosnia and Herzegovina internationally in this matter."FN75

------------------------------------------------------------------------------------------------------------
FN75 Statement of the Government of the Republic of Bosnia and Herzegovina on Pre-liminary Objections, p. 47, para, 2.19.
------------------------------------------------------------------------------------------------------------

The dispute is over the question whether Mr. Izetbegovic could have performed the function of President of the Presidency ex constitutione after 20 December 1992. It is indisputable that Mr. A. Izetbegovic assumed the function of President of the Presidency of the Socialist Republic of Bosnia and Herzegovina in December 1990, in conformity with the relevant constitutional provisions. The term of office was extended by a year, also in conformity with Amendment LI (para. 4, point 6) to the Constitution of the Socialist Republic of Bosnia and Herzegovina which stipulated:

"The President of the Presidency is elected by the Presidency from among its members for a period of one year and he may be reelected for another, consecutive year on one occasion."
The Constitution therefore prohibited the exercise of the function of the President of the Presidency for more than two years or two consecutive [p 697] terms. This prohibition was absolute in the original text of the Constitution of the Socialist Republic of Bosnia and Herzegovina as, in respect to the President of the Presidency, no exceptions were envisaged even in the case of a "state of war or imminent threat of war". That such an interpretation is correct is corroborated by Article 358 of the Constitution:

"In the event of a state of war or imminent threat of war the mandate of the Members of the Presidency of SR B-H shall be continued until such time as the conditions for election of the new Members of the Presidency are met. " (Emphasis added.)

The prohibition was modified by Amendment LI (par. 4 (8)) to the Constitution of the Socialist Republic of Bosnia and Herzegovina according to which:

"In the event of a state of war or imminent threat of war, the mandate of Members of the Presidency and the President shall be continued until such time as the conditions for election of new Members of the Presidency are met."FN76

------------------------------------------------------------------------------------------------------------
FN76 Official Gazette of the Socialist Republic of Bosnia and Herzegovina, No. 13 of 21 April 1989, p. 338.
------------------------------------------------------------------------------------------------------------

This amendment extends rat tone personae the range of the exception established for members of the Presidency by Article 358 of the Constitution of the Socialist Republic of Bosnia and Herzegovina to include the President of the Presidency. The main elements of the solutions contained in Amendment LI are:

(a) the continuation of the term of office is linked to the eventuality of a "state of war or imminent threat of war";

(h) the prohibition of a third consecutive mandate is not abolished, but the continuation of a mandate is envisaged in the cited cases;

(c) the continuation of the mandate is limited by appropriate "conditions for the election of new Members of the Presidency", not by the termination of the "state of war or imminent threat of war".

Bosnia and Herzegovina also refers to Article 220 of the Consolidated Constitution of the Republic of Bosnia and Herzegovina adopted on 24 February 1993, which reads:

"In the event of war or a state of emergency, the mandate of the Members of the Presidency and of the President shall be continued until such time as the conditions for new elections for the Presidency are met."

In my opinion, the consolidated text of the Constitution cannot, in this particular case, be accepted as a relevant legal basis.

More particularly, a consolidated text in Yugoslav constitutional practice was a strictly legal-technical procedure whereby the text of a norma-[p 698]tive act, the Constitution or laws, was adjusted to its purpose and to the requirements of practical implementation. It excluded even minor material-legal changes in the text of the act and was for the most part reduced to a procedure of renumeration of segments of the normative act. Hence, in Yugoslav constitutional practice, the consolidated text of a normative act could not be referred to in formal proceedings including court proceedings.

In comparison with the contents of Amendment LI, Article 220 of the consolidated text of the Constitution of the Republic of Bosnia and Herzegovina constitutes a modification of the Constitution. The prolongation of the term of office of the Members and the President of the Presidency in Amendment LI (para. 4 (8)) is linked to a case "of war or imminent threat of war" whereas in Article 220 of the consolidated text the basis for the prolongation is a case "of war or a state of emergency". Hence, it may be concluded that the form of consolidation of the text actually conceals a modification of the Constitution.

The Presidency of Bosnia and Herzegovina, as stated in the preamble to the Constitution, adopted a decision to establish a consolidated text of the Constitution of the Republic of Bosnia and Herzegovina, and was not authorized by the Constitution to effect any changes to the Constitution, this being within the exclusive competence of the Assembly of Bosnia and HerzegovinaFN77. The Presidency as well as the Government of the Republic, each of the Assembly Chambers and at least 30 Assembly Deputies, appear as the only possible proponents of proposals to amend the ConstitutionFN78. Changes in the Constitution of the Republic of Bosnia and Herzegovina may only be made in the form of Constitutional Amendments or Constitutional LawsFN79.

---------------------------------------------------------------------------------------------------------------------
FN77Article 268 (3), (4) of the Constitution.
FN78Article 268 (1) of the Constitution.
FN79Article 268 (5) of the Constitution.
---------------------------------------------------------------------------------------------------------------------

It follows from the above that Article 220 of the Consolidated Constitution of the Republic of Bosnia and Herzegovina, in the section in which the continuation of the term of office of Members and the President of the Presidency is linked also to a "state of emergency", constitutes a modification of the Constitution of the Republic of Bosnia and Herzegovina, and that the change was effected, both formally and materially, contra constitutionem.

31. Consequently, what remains to be seen is whether, in the light of the provisions of Article 358 of the Bosnia and Herzegovina Constitution as amended by Amendment LI (4 (8)), the established conditions had been met for the continuation of the mandate of the President of the Presidency of the Republic of Bosnia and Herzegovina after 20 December 1992, i.e., after the expiry of his second consecutive term.
The relevant provision of Bosnia and Herzegovina's Constitution stipulated that the "mandate of the President shall be continued" in the event [p 699] of "war or imminent threat of war". In other words, "war or imminent threat of war" constituted the material, constitutional basis for the auto-matic continuation of the mandate of the President of the Presidency.

The fulfilment of this requirement ex constitutione implies that the decision on the existence of "war or imminent threat of war" was taken by the competent organ in line with established constitutional procdure.

32. The Presidency of the Socialist Republic of Bosnia and Herzegovina, at its session of 8 April 1992, passed a "Decision on the proclamation of an imminent threat of war" in the territory of Bosnia and Herzegovina. The decision was taken, as stated in the preamble

"in conformity with the provisions of Amendments LI and LXXII to the Constitution of the Socialist Republic of Bosnia and Herzegovina and upon the proposal of the Assembly of the Socialist Republic of Bosnia and Herzegovina".

It follows from this statement:

(a) that the "Decision" was taken upon the proposal of the Assembly of the Socialist Republic of Bosnia and Herzegovina, and,

(b) that the Presidency took the "Decision" on the basis of Amendments LI and LXXII to the

Constitution of the Socialist Republic of Bosnia and Herzegovina.

33. The competences of the Assembly of the Socialist Republic of Bosnia and Herzegovina were established by Article 314 of the Constitution of the Socialist Republic of Bosnia and Herzegovina (see para. 36 below). The unequivocal conclusion to be drawn from the text of that Article is that the submission of the proposal on the proclamation of the imminent threat of war was not within the terms of reference of the Assembly of the Socialist Republic of Bosnia and Herzegovina. Article 314 was modified by Amendment I XXI adopted on 31 July 1990. In the part relating to the competences of the Assembly adopted at a joint session of all the Assembly Chambers, the Amendment stipulated:

"5, The Chambers of the Assembly of SR B-H at their joint session may:

— decide on changes to the Constitution of the Socialist Republic of Bosnia and Herzegovina;

— proclaim the Constitution of the Socialist Republic of Bosnia and Herzegovina and any changes thereto;

— make proposals, express opinions and approve any changes to the Constitution of the Socialist Federal Republic of Yugoslavia;

— approve changes to the borders of the Socialist Federal Republic of Yugoslavia; [p 700]
— decide on modifications of the borders of the Socialist Republic of Bosnia and Herzegovina;

— review foreign policy issues;

— decide on the prolongation of the mandates of deputies to the Assembly of SR B-H and those of aldermen serving in the assemblies of the communes and assemblies of municipalities;

— pass the social plan of Bosnia and Herzegovina, the budget and final accounts of the budget of SR B-H;

— call a Republic-wide referendum;

— decide on the floating of Republic-wide public lons;

— decide on debts or other obligations of the Republic;

— decide on whether to entrust affairs within the competence of the Republic to a municipal community as a separate socio-political community;

— elect and relieve of office: the President and Vice-President of the Assembly of SR B-H; the member of the Presidency of SFRY from SR B-H; the President, Vice-President and members of the Government of SR B-H; the President and Judges of the Con-stitutional Court of Bosnia and Herzegovina; the President and Judges of the Supreme Court of Bosnia and Herzegovina; the President and members of the working bodies of the Assembly of SR B-H;

— elect and relieve of office members of the Delegation of the Assembly of SR B-H in the Chamber of Republics and Provinces of the Assembly of SFRY;

— appoint and relieve of office: ministers; the Governor of the National Bank of Bosnia and Herzegovina; the Public Prosecutor of the Republic, the Public Attorney of the Republic and the Secretary General of the Assembly of SR B-H;

— adopt the Rules of Procedure of the Assembly of SR B-H;
The Chambers of the Assembly of SR B-H may decide to review at a joint session other matters within the common terms of reference of the Assembly of SR B-H."FN80

------------------------------------------------------------------------------------------------------------
FN80 Official Gazette of the Socialist Republic of Bosnia and Herzegovina, No, 21 of 31 July 1990.
------------------------------------------------------------------------------------------------------------


Consequently, the submission of the proposal to proclaim an "imminent threat of war" was not within the competence of the Assembly of the [p 701] Socialist Republic of Bosnia and Herzegovina exercised at a joint session of all the Assembly Chambers nor was it envisaged by the amended version of Article 314 of the Applicant's Constitution. A fortiori, the same conclusion applies to the competences of the Assembly exercised at sessions of individual Assembly Chambers.

34. It is only the consolidated text of the Constitution of the Republic of Bosnia and Herzegovina that contains a provision according to which the Assembly of the Republic of Bosnia and Herzegovina, inter alia, "decides on war and peace"FN81. This provision, however, cannot be considered as relevant in this specific case for two main reasons. Firstly, by its nature it constitutes a revision of the Constitution carried out contra constitutionem in the form of a consolidation of the text of the Constitution — hence, the arguments presented in reference to Article 220 of the Consolidated Constitution apply per analogiam (see para, 30 above). Sec-ondly, the Consolidated Constitution of the Republic of Bosnia and Herzegovina was passed in February 1993, i.e., almost a year after the adoption of the "Decision on the proclamation of imminent threat of war", so that with respect to this concrete case it is irrelevant.

---------------------------------------------------------------------------------------------------------------------
FN81 Article 206 (5) of the consolidated text.
---------------------------------------------------------------------------------------------------------------------

35. The preamble to the "Decision on the proclamation of an imminent threat of war" states, inter alia, that it was taken "in accordance with the provisions of Amendments LI and LXXII to the Constitution of SR B-H". In the wording of this Decision, therefore, Amendments LI and LXXII appear as a concrete constitutional basis. The contents of Amendment LXXII can hardly be linked to the "Decision on the proclamation of imminent threat of war", as this Amendment actually abrogates Amendment XVII to the Constitution of the Socialist Republic of Bosnia and Herzegovina by stipulating that: "The provisions of Amendment XVII to the Constitution of SR B-H on the Council of the Republic shall cease to be valid."FN82 Prima facie, there is a link between Amendment LI and the "Decision on the proclamation of imminent threat of war", since the subject of the Amendment was the establishment of the competences of the Presidency of the Socialist Republic of Bosnia and Herzegovina. Amendment LI stipulated that:

---------------------------------------------------------------------------------------------------------------------
FN82 Official Gazette of the Socialist Republic of Bosnia and Herzegovina, No. 21 of 31 July 1990.
---------------------------------------------------------------------------------------------------------------------

" 1. The Presidency of the Socialist Republic of Bosnia and Herzegovina:

(1) represents the Socialist Republic of Bosnia and Herzegovina;
(2) reviews questions relating to the implementation of adopted policies in the areas of all peoples' defence, state security, social self-protection and international co-operation and proposes to the Assembly of SR Bosnia and Herzegovina the passage of appropriate
[p 702] measures to implement those policies and, in the event of an emergency preventing or seriously hamering the realization of the social order as established by the Constitution, proposes to the Assembly of SR Bosnia and Herzegovina the adoption of necessary measures to overcome the intervening disturbances;

(3) establishes the defence plan of the Republic and provides appropriate guide-lines in conformity with the law;

(4) in accordance with the positions and proposals of the Assembly of SR Bosnia and Herzegovina reviews matters related to the participation of the Socialist Republic of Bosnia and Herzegovina in the establishment and implementation of the foreign policy of the Socialist Federal Republic of Yugoslavia, to co-operation between the Republic and other Republics and Autonomous Provinces in the area of international co-operation within the framework of the adopted foreign policy of SFRY and international treaties, and, on the basis of prior consultations within the Republic, proposes candidates for appointment as heads of diplomatic missions and informs the Presidency of SFRY and the Assembly of SR Bosnia and Herzegovina of its proposals ;

(5) establishes, on the basis of prior consultations within the Republic, proposals for candidates for the appointment as President and Judges of the Constitutional Court of Bosnia and Herzegovina;

(6) establishes on the basis of prior consultations in the Republic, the proposal of candidates for appointment as members of the Council of the Republic;

(7) establishes proposals for decorations conferred by the SFRY Presidency and confers decorations and other marks of honour of the Republic in conformity with the law;

(8) pardons offenders, in conformity with the law;

(9) adopts the Rules of Procedure of the Presidency."FN83

------------------------------------------------------------------------------------------------------------
FN83 Official Gazette of the Socialist Republic of Bosnia and Herzegovina, "No, 21 of 31 July 1990.
------------------------------------------------------------------------------------------------------------


In the light of the established competences of the Presidency of the Socialist Republic of Bosnia and Herzegovina, prima facie, any acceptance of Amendment LI as a possible constitutional basis for passing the "Decision on the proclamation of imminent threat of war" is out of the question. Amendment LI gives no authorization whatsoever to the Presidency to proclaim an imminent threat of war upon its own initiative or upon the proposal of any other organ. In its paragraph 2, the said Amendment establishes the competences of the Presidency "in the event of extraordinary conditions preventing or seriously hampering the reali-[p 703]zation of the constitutionally established order", but those conditions could hardly include the proclamation of imminent threat of war. On the one hand the term "extraordinary conditions" is far broader than the term "imminent threat of war". In Yugoslav constitutional terminology, the term "extraordinary conditions" served to denote a state of affairs provoked by natural disasters (Article 364 of the Constitution of the Socialist Republic of Bosnia and Herzegovina enunciates as "extraordinary conditions" events like "natural disaster, epidemics"). All powers linked to a state of war or imminent threat of war were entirely in the hands of federal organs. On the other hand, even on the hypothesis that the competences of the Presidency on the basis of paragraph 2 of Amendment LI included the question of "imminent threat of war", the procedure by which the "Decision on the proclamation of imminent threat of war" was passed could only be qualified as formally unconstitutional, as the cited paragraph of Amendment LI stipulates the right of the Presidency in the case of extraordinary conditions "to propose to the Assembly of SR B-H that it take necessary measures to eliminate the existing disturbances". Hence, the Presidency was not authorized to "take necessary measures to remove the existing disturbances " (emphasis added) but only to propose to the Assembly the taking of such measures. The prerequisites for such a procedure existed as, judging from the text of the preamble of the "Decision", the Assembly had convened when it made the proposal for the proclamation of an imminent threat of war.

36. Consequently, bearing in mind that on the basis of Article 358 of the Constitution of Bosnia and Herzegovina as amended by Amendment LI (4 (8)) "war or imminent threat of war" was the constitutional condition for the automatic continuation of the mandate of the President of the Presidency and that in the light of the relevant provisions of Article 314 of the Constitution of SR Bosnia and Herzegovina as amended by Amendment LXXI and Amendment LI, the "Decision on the proclamation of imminent threat of war" was passed in contravention of the Constitution by an unauthorized organ, the mandate of Mr. Alija Izetbegovic as President of the Presidency could not have been automatically continued after 20 December 1992.

37. The letter addressed by the Prime Minister of Bosnia and Herzegovina to the Secretary-General of the United Nations on 1 March 1993, i.e., 20 days before Mr. Alija Izetbegovic issued the authorization for the institution of proceedings before the Court, reads inter alia:

"I also advised . . . that the mandate of Mr. Alija Izetbegovic as President of the Presidency had expired. This is to demonstrate the immediate need for the international community to assist not only in protecting Bosnia and Herzegovina's sovereignty and territorial integrity but also in assuring that the country is governed in accordance with its democratic and constitutional principles. I should be [p 704] grateful if you would have the text of the present letter and its annex circulated as a document of the General Assembly, under agenda item 143 and of the Security Council."FN84

------------------------------------------------------------------------------------------------------------
FN84 Doc. A/47/899-S/25360, 5 March 1995.
-----------------------------------------------------------------------------------------------------------

The Annex of this letter is "Letter dated 24 February 1993 from the Prime Minister of Bosnia and Herzegovina to the Chairman of the European Affairs Subcommittee of the Senate Foreign Affairs Committee of the United States of America", and states inter alia:

"Furthermore, please be advised that the mandate of Mr. Alija Izetbegovic as President of the Presidency of the Republic of Bosnia and Herzegovina expired on 20 December 1992. He is presently without constitutional authority to act in that capacity. The Presidency, and not the President alone, is the representative body of the Republic of Bosnia and Herzegovina. Only the Presidency can invoke constitutional emergency powers, not the President alone. The President is merely primus inter pares. Like Mr. Silajdzic, Mr. Izetbegovic does not speak for the Presidency as a whole with respect to the current stage of the Vance/Owen talks, but only as one Muslim member of the Presidency."FN85

---------------------------------------------------------------------------------------------------------------------
FN85 Ibid.
---------------------------------------------------------------------------------------------------------------------

In this connection, Mr. R. Zacklin, Director and Deputy to the Under-Secretary-General in charge of the Office of Legal Affairs, in a letter addressed to the Registrar of the International Court of Justice on 25 March 1993, stressed inter alia that:

"Mr, Izetbegovic participated in the general debate of the last session of the General Assembly as President of Bosnia-Herzegovina and no communication has been made to the United Nations since then advising us that he is no longer the President. In the United Nations and in the International Conference on the former Yugoslavia, Mr. Izetbegovic has been regarded and continues to be regarded as the President of Bosnia-Herzegovina."FN86

------------------------------------------------------------------------------------------------------------
FN86 Letter dated 25 March 1993 addressed to E. Valencia-Ospina, Registrar, Interna-tional Court of Justice, from R. Zacklin, United Nations Director and Deputy to the Under-Secretary-General in charge of the Office of Legal Affairs.
------------------------------------------------------------------------------------------------------------

Can the fact that "[i]n the United Nations and in the International Conference on the former Yugoslavia, Mr. Izetbegovic has been regarded and continues to be regarded as the President of Bosnia-Herzegovina" change the legal order established by the Constitution of Bosnia and Herzegovina?

The answer to this question can only be negative, as if this were not the case, we would find ourselves in the absurd situation of attributing to the institution of recognition, which is in practice an eminently political act, constitutional powers, the power to change the internal political structure of a State. Another conclusion may be drawn however — that the inter-[p 705]
national community organized within the United Nations was in legal error (error juris), judging from the meaning of the formulations used in the aforementioned letter, with regard to the nature of the institution of Head of State in the constitutional system of Bosnia and Herzegovina.

38. In the light of the relevant provisions of Bosnia and Herzegovina's internal law, it is evident that Mr. Alija Izetbegovic was without constitutional authority to act in the capacity of President of the Presidency of Bosnia and Herzegovina as of 21 December 1991. The relevance of that fact cannot be denied in the domain of international law, as, in my view, we are faced with a general legal principle according to which:

"the act of an official cannot juridically be set up as an act of State unless it was within the sphere of competency of that official. The act of an incompetent official is not an act of the State."FN87

------------------------------------------------------------------------------------------------------------
FN87 The Presiding Commissioner of the France-Mexican Mixed Claims Commission (1924) in the Caire case (1929), cited in Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, 1953, p. 205.
------------------------------------------------------------------------------------------------------------

39. This general principle is also expressed in Article 8 of the Convention on the Law of Treaties (1969).

A measure taken by an official outside the sphere of competence of that official is by definition a non-existent measure, a measure limited to the factual sphere as it is devoid of legal effect. In that respect the qualification contained in the commentary on Article 8 of the Convention on the Law of Treaties is applicable per analogiam:

"where a person lacking any authority to represent the State in this connection purported to express its consent to be bound by a treaty, the true legal position was that his act was not attributable to the State and that, in consequence, there was no question of any consent having been expressed by it . . . the unauthorized act of the representative is without legal effect"FN88.

------------------------------------------------------------------------------------------------------------
FN88 Draft Articles on the Law of Treaties with commentaries adopted by the ILC at its Eighteenth Session, UNCLT, First and Second Sessions, Vienna, 26 March-24 May 1968 and 9 April-22 May 1969, Official Records, p. 13, para. 1.
------------------------------------------------------------------------------------------------------------


THIRD PRELIMINARY OBJECTION

40. The sedes materiae of the third preliminary objection lies in the statement that Bosnia and Herzegovina's proclamation of sovereignty and independence was effected in an illegal manner in flagrant breach of the principle of equal rights and self-determination of peoples; hence, no succession of the Applicant to the Genocide Convention of 1948 could have been possible.

The Court finds, quite simply, that

"Bosnia and Herzegovina became a Member of the United Nations following the decisions adopted on 22 May 1992 by the Security [p 706] Council and the General Assembly, bodies competent under the Charter",
and indicates that

"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. Hence the circumstances of its accession to independence are of little consequence." (Para. 19 of the Judgment.)

In my opinion, the legality of Bosnia and Herzegovina's birth is far from being a fact in the light of the relevant legal rules. It implicitly relies on the concept of the so-called "process of dissolution" of Yugoslavia, elaborated in the Opinions of the Arbitration Commission of the Conference on Yugoslavia, which is not a legal term stricto sensu. This concept is most aptly seen as a sort of metaphor where a State figures as a kind of vessel from which its vital substance is trickling away and which, through the will of an imaginary creator, is being transformed into the tissue of a new State organism.

(This is eloquently shown by the position taken by the Arbitration Commission in relation to the date of succession of States in the Yugoslav case. In its Opinion No. 11, the Commission took the view:

"That the date upon which the States stemming from the Socialist Federal Republic of Yugoslavia succeeded the Socialist Federal Republic of Yugoslavia are:

— 8 October 1991 in the case of the Republic of Croatia and the Republic of Slovenia,

— 17 November 1991 in the case of the former Yugoslav Republic of Macedonia,

—6 March 1992 in the case of the Republic of Bosnia and Herzegovina" (International Conference on the Former Yugoslavia, Arbitration Commission, Opinion No. 11, para. 10).

Thus the Commission claims that the succession here occurred in the relations between the SFRY as the predecessor-State and the newly-independent republics as the successor-States. In other words, it did not take place uno ictu; rather, what is known as succession is in fact a set of successions which occurred one after another between 8 October 1991 and 27 April 1992. The succession of Slovenia and Croatia has not destroyed the international legal personality of the SFRY as the predecessor-State. A contrario, Macedonia could not exit from the SFRY and succeed SFRY at the same time. The same applies to Bosnia and Herzegovina, because this former federal unit, in the Commission's view, also succeeded SFRY. Such an approach of the Commission could reasonably be explained by "the complex interaction between [p 707] the deliberations of the Arbitration Commission and the political decisions of the EC institutions and member States [which] is noteworthy" (Conference on Yugoslav Arbitration Commission : Opinions on Questions Arising from the Dissolution of Yugoslavia, Introductory Note by Maurizio Ragazzi, International Legal Materials, 1992, p. 1490). In the light of the above, there exists a clear connection between such qualification and the content of Article 1 (a) of the Draft Convention submitted by President of the Conference proposing that "[n]ew relations between the Republics will be based on the following: (a) sovereign and independent Republics with an international personality for those who wish it, etc.")

Of utmost importance is the fact that there exists a substantial connection, in fact a causal connection, between the legality of the birth of a State and the status of a successor State in legal terms (see paras. 81-88 below).

In order to reach a conclusion as to whether Bosnia and Herzegovina was established in the legal way, it is necessary to examine both the relevant norms of international law and the internal law of SFRY, The relevance of the internal law of SFRY to that effect derives from the specific nature of the norm of equal rights and self-determination of peoples in multi-ethnic States (see paras. 44-46 above).

A. Relevance of International Law to the Birth of States

41. A reply in the matter of relevance is often sought in the option for one of the two mutually exclusive qualifications: birth of States as questio facti or as questio juris. Neither of these qualifications, taken on its own merits and individually, really corresponds to the actual state of affairs, in view of their oversimplification and untenable, segregation. The first suggests that international law is indifferent to the issue of the birth of States, that they are created in a legal vacuum, a sort of legal vacant space, in a free interaction of power and opportunity elements. The second, however, reduces the birth of States to legalistic procedures, to a matter of the mere will of an imaginary international legislator, materialled in the form of a State, independently of real social processes. In the final analysis, the first statement reduces international law relative to the birth of States to an ex post rationalization of actual developments and thereby to its own negation, while the second takes a completely opposite course, elevating international law to the level of a maker, a creator of social phenomena. [p 708]

The fundamental defect in the option for either of the two mutually exclusive explanations is the confusion of two dimensions involved in the birth of States: the socio-political and the legal. As it is indisputable that birth of States is a matter of realistic social processes from a socio-political standpoint, so it is that the birth of States takes place in the environment of the international community. Thus, international law cannot abdicate from the regulation of such a crucial issue of international life. Shaw is right in observing that:

"[t]he relationship . . . between factual and legal criteria is a crucial shifting one. Whether the birth of a new state is primarily a question of fact or law and how the interaction between the criteria of effectiveness and other relevant legal principles may be reconciled are questions of considerable complexity and significance."FN89

------------------------------------------------------------------------------------------------------------
FN89 M. N. Shaw, International Law, 2nd ed., 1986, p. 126.
------------------------------------------------------------------------------------------------------------

42. Since its inception international law has never been or could have been indifferent to the question of the birth of States. The substance and nature of its rules have undergone modifications depending on the achieved degree of advancement of international law. Grosso modo, the rules of international law concerning the birth of States may be classified into two groups:

— the first would comprise the rules of international law defining the State ab intra, as a legal fact within the system of international law. In other words, these rules of international law define what a State is. The very definition is static and narrowed down to an enumeration of the con-stituent elements of a State. On the whole, such a definition of a State is founded on the principle of effectiveness and by this means international law specifies the static, categorial meaning of the concept of a State.

-— the second group would comprise the rules defining a State ab extra, from the point of view of other relevant rules of international law. While definition ab intra starts from a State as an isolated, static phenomenon, definition ab extra locates the State in the system of international law, linking its birth and functioning in the international community to other legal rules. In expressing the dynamic side of a concrete issue concerning a certain State, the notion of a State ab extra includes, in fact, principles and norms fundamental to the birth of States. Those principles have accompanied practically the whole period of existence of international law. The birth of States, since the Westphalian Peace Accord in 1648, has been justified by a principle-like balance of power, legitimacy and interpretation of the "Holy Alliance", the quasi-legislative competences of super-powers, the principle of nationality, and, during the twentieth century, the self-determination of peoples. [p 709]

It may be said that the above principles basically derive from the concept of legality.

43. It should be kept in mind, however, that the nature of the legality concept has been changing with the development of international law. That concept was based, for quite some time, upon subjective, eliminatory criteria, which recognized, in a community that tolerated uncontrolled resort to force and even to war, the property of a legislative factor, meaning legality no more than in the formal sense of the word. Determined ad casum, on the basis of the fulfilment of formal and procedural requirements, that legality was not stricto sensu legality, as measured by the norms of a more developed internal law, but rather a political decision in a more acceptable guise.

A basis for a radical change of attitude to the question of legality is provided by the hierarchical division of international law according to the criterion of the legal merit of its norms. The division of international law into "lower" and "higher" law opened the way towards the concep-tualization of peremptory norms of general international law (jus cogens), effected by Articles 53 and 64 of the Convention on the Law of Treaties of 1969. As Judge Ammoun put it in his separate opinion in the Barcelona Traction case (Second Phase, 1970):

"through an already lengthy practice of the United Nations, the concept of jus cogens obtained a greater degree of effectiveness, by ratifying, as an imperative norm of international law, the principles appearing in the preamble to the Charter"FN90.

------------------------------------------------------------------------------------------------------------
FN90 I.C.J. Reports 1970, p. 304.
------------------------------------------------------------------------------------------------------------

Jus cogens creates grounds for a global change in relations of State sovereignty to the legal order in the international community and for the establishment of conditions in which the rule of law can prevail over the free will of States. As an objective, non-eliminatory norm, it constitutes a material basis, a criterion for challenging the legality of individual acts in the international community. Therefore, it essentially limits the impact of effectiveness in international law. Effectiveness in a system with a defined concept of legality may be legally accepted only in cases in which it does not conflict with the norms that serve as criteria of legality. Within the co-ordinates of the de jure order effectiveness versus legality is an incorrect approach, because to accept effectiveness as a rule

"would indeed be to apply a hatchet to the very roots of the law of nations and to cover with its spurious authority an infinitive series of international wrongs and disregard for international obligations"FN91.

------------------------------------------------------------------------------------------------------------
FN91 J. H, W. Verzijl, International Law in Historical Perspective, I, 1968, p. 293.
------------------------------------------------------------------------------------------------------------

[p 710]
44. The concept of a material, homogeneous legality is unavoidably reflected in the matter of the birth of States. This is suggested by an as yet insufficiently advanced and stabilized international practice. Let us take the case of Southern Rhodesia. In that case, the criterion of effectiveness was fully met, as the white, minority government, exercised effective rule over the territory. But, in spite of that, United Nations Security Council resolution 217 of 20 November 1965 established that the declaration of independence had "no legal validity" and national government had been proclaimed by "illegal authorities". Such an attitude towards Southern Rhodesia, which on the basis of the ab intra criterion, was a State beyond any doubt, was governed by the intention "to allow the people of Southern Rhodesia to determine their own future consistent with the objectives of General Assembly resolution 1514 (XV)" (1960).FN92 United Nations General Assembly resolution 1514 of 14 December I960, entitled "Declaration on the Granting of Independence to Colonial Countries and Peoples" established, inter alia, that

---------------------------------------------------------------------------------------------------------------------
FN92 Security Council resolution 217 (1965), 20 November 1965, para. 7.
---------------------------------------------------------------------------------------------------------------------

"All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." (Para. 2.)

In that way the practice of States confirmed that:

"in the case of an entity seeking to become a state and accepted by the international community as being entitled to exercise the right of self-determination, it may well be necessary to demonstrate that the internal requirements of the principle have not been offended. One cannot define this condition too rigorously in view of state practice to date, but it would appear to be a sound proposition that systematic and institutionalised discrimination might invalidate a claim to statehood."FN93

------------------------------------------------------------------------------------------------------------
FN93 M. N. Shaw, op cit, p. 132.
------------------------------------------------------------------------------------------------------------

However, it would be an overstatement to assert that the introduction of the concept of material legality created a harmonious unity between the ab intra and ab extra definitions of a State. This has not been achieved due to the chronic institutional insufficiency of the international order which, acting in the environment of a primarily political community — which is what the international community virtually is — often leads to the prevalence of policy over law. Hence, the discrepancy between international law and international order, since norms have not always been applied as they should have been in view of their substance, but more or less under the influence of n on-legal, political views. Indisputably, the achievement of the aforementioned harmony constitutes not only an aim of but also a condition for the establishment of international order as a de jure order in this particular context. [p 711]

B. The Legality of the Proclamation of Bosnia and Herzegovina's Independence in the Light of the Internal Law of the Socialist Federal Republic of Yugoslavia

1. Relevance of the internal law of the Socialist Federal Republic of Yugoslavia in this particular case

45. The original international legal norm of self-determination of peoples is both incomplete and imperfect, at least when it concerns subjects entitled to self-determination in multi-ethnic States and their exercise of external self-determination infringing upon the territorial integrity of a State. Given its incompleteness, the original norm of self-determination of peoples is rendered inapplicable in its respective parts to certain practical situations and constitutes a sort of decorative, empty normative structure. Interested entities often refer to it, but it can function only outside the legal domain, as a convenient cover for an eminently political strategy, based on opportuneness and the balance of power.

This implies a need to see the norm of the right to external self-determination in the States composed of more than one people as a complex norm consisting of two parts: on the one hand, original international legal norms of the right of peoples to external self-determination, and, on the other, relevant parts of the internal law of the given State. In this context, the original international legal norm of the right of peoples has the role of a general, permissive norm, which assumes an operative character, the property of a norm which may become effective in the event that the internal law of a multi-ethnic State has stipulated the right to external self-determination if it defines the entitlement to it, as well as the procedure for its exercise. In other words, the relevant provisions of internal law are ad casum an integral part of the norm of the right of peoples to external self-determination. Only in this way does the original international legal norm of the right to external self-determination become applicable at the level of the fundamental premise of the rule of law.

The necessity for such a relationship between international and internal laws is rightfully suggested by the following:

"If the rule of law is to be made effective in world affairs it must cover a wide range of increasingly complex transactions which are governed partly by international and partly by municipal law ... It is therefore important that international courts and tribunals should be in a position, when adjudicating upon complex international transactions, to apply simultaneously the relevant principles and rules of international law and the provisions of any system of municipal law which may be applicable to the particular transaction . . . One of the essential functions of international law and international organisation is to promote the rule of law within as well as among nations, for only on the basis of the rule of law within nations can the rule of law among nations develop and be made[p 712] secure. International courts and tribunals can contribute to this result more effectively if the extent to which the interpretation and application of municipal law in the course of their work is a normal and necessary incident of international adjudication on complex transactions is more fully understood."FN94

------------------------------------------------------------------------------------------------------------
FN94 C. Wilfred Jenks, The Prospects of International Adjudication, 1964, p. 547.
------------------------------------------------------------------------------------------------------------

Positive international law free of Manicheanism and the antagonistic burden of dualistic-monistic theoretical controversy has firmly embarked upon this course. One can think of a long list of rules of positive international law that rest on the symbiosis of an international norm containing both implicit and explicit references to the internal law and the respective norms of that internal law. To illustrate, Article 46 of the Convention on the Law of Treaties (1969) stipulates that a State may invoke the fact that its consent to be bound by a treaty has been expressed in violation of its internal law regarding competence to conclude treaties as invalidating its consent in a case where that "violation was manifest and concerned a rule of its internal law of fundamental importance". Or in the law of the sea, where the subject of protection and preservation of the marine environment is entirely regulated on the basis of a symbiosis of international and internal laws. Exempli causa, Article 207 (1) (Pollution from Land-Based Sources) of the Convention on the Law of the Sea stipulates:

"States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources . . ., taking into account internationally agreed rules, standards and recommended practices and procedures."

Reliance on internal law as a criterion for undertaking international acts is not unknown in the diplomatic practice of States. One can mention the practice of the United States inaugurated by President Wilson according to which a new test of "constitutionality" making the "coming into power" of a new government by constitutional means is a prerequisite for recognition of that government by the United StatesFN95.

------------------------------------------------------------------------------------------------------------
FN95 M. Whiteman, Digest of International Law, Vol. 2, p. 69.
---------------------------------------------------------------------------------------------------------------------

46. Thus, in the present case, this is not a matter of a conflict between a norm of international and a norm of internal law, a type of case adjudicated by several international courts (Greco-Bulgarian "Communities", P.C.I.J., Series B, No. 17, p. 32; Free Zones of Upper Savoy and the District of Gex, P.C.I.J., Series A, No. 22, p. 167; Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, P.C.I.J.. Series A/B, No. 44, p. 24), but rather of the application of an international norm of a complex structure, namely a norm that incorporates relevant norms of internal law relating to external self-[p 713]determination. I am of the view that, in this case, the reasoning of the Court in the case concerning Brazilian Loans (1929) is relevant.

In the Brazilian Loans case the Court pointed out, inter alia, that

"[o]nce the Court has arrived at the conclusion that it is necessary to apply the municipal law of a particular country, there seems no doubt that it must seek to apply it as it would be applied in that country. It would not be applying the municipal law of a country if it were to apply it in a manner different from that in which that law would be applied in the country in which it is in force.

It follows that the Court must pay the utmost regard to the decisions of the municipal courts of a country, for it is with the aid of their jurisprudence that it will be enabled to decide what are the rules which, in actual fact, are applied in the country the law of which is recognized as applicable in a given case. If the court were obliged to disregard the decisions of municipal courts, the result would be that it might in certain circumstance apply rules other than those actually applied; this would seem to be contrary to the whole theory on which the application of municipal law is based.

Of course, the Court will endeavour to make a just appreciation of the jurisprudence of municipal courts. If this is uncertain or divided, it will rest with the Court to select the interpretation which it considers most in conformity with the law. To compel the Court to disregard that jurisprudence would not be in conformity with its function when applying municipal law."FN96

------------------------------------------------------------------------------------------------------------
FN96P.C.I.J., Series A, No. 21, p. 124.
------------------------------------------------------------------------------------------------------------


2. Constitutional concept of the Yugoslav State — constitutional concept of Bosnia and Herzegovina as a federal unit

47. In order to elucidate the constitutional concept of the Yugoslav State and that of Bosnia and Herzegovina as a federal unit, I will quote some relevant provisions of the constitutions of the Yugoslav State that suggest a conclusion on its nature and, more specifically, on the status of its peoples.

48. The first constitution of the Yugoslav State — the constitution of the Kingdom of Serbs, Croats and Slovenes, promulgated on 28 June 1921, stipulated that the Kingdom "is a state of Serbs, Croats and Slovenes, a constitutional, parliamentary and hereditary monarchy. The official state name is: Kingdom of Serbs, Croats and Slovenes." Article 3 of the Constitution provided that the "official language of the Kingdom will be Serb-Croat-Slovenian".

49. The Constitution of the Kingdom of Yugoslavia of 3 September 1931, did not indicate expressis verbis its constitutive peoples. They were [p 714] mentioned only indirectly, as, for example, in the provision of Article 3 of the Constitution stipulating that the "official language of the Kingdom [shall be] Serbian-Croat-Slovenian".

50. The resolution constituting Yugoslavia on the federal principle, approved by the Second Conference of the Anti-Fascist Council of National Liberation of Yugoslavia on 29 November 1943, said, inter alia,

"By virtue of the right of each people to self-determination including the right to separation or unification with other peoples, . . . the Anti-Fascist Council of National Liberation of Yugoslavia, passes the following

Resolution
………………………………………………………………………………………………
(2) To effectuate the principle of sovereignty of the peoples of Yugoslavia, . . . Yugoslavia is being constructed and will be constructed on the federal principle which will secure full equality to Serbs, Croats, Slovenians, Macedonians and Montenegrans, id est peoples of Serbia, Croatia, Slovenia, Macedonia, Montenegro and Bosnia and Herzegovina . . ,"FN97

------------------------------------------------------------------------------------------------------------
FN97 Decision on building up Yugoslavia on the federal principle, Official Gazette of DFJ, No. 1/1945 (emphasis added).
------------------------------------------------------------------------------------------------------------

51. The first Constitution of the federal Yugoslavia of 1946 in its Article 1 defined the Federal Peoples' Republic of Yugoslavia as

"a federal peoples' State in the form of a Republic, a community of equal peoples, who have expressed their will, based on the right to self-determination, including the right to separation, to live together in a federal State".

52. In the second Constitution of 1963, the Federation was defined as a:
"Federal state of freely unified and equal peoples and a socialist democratic community based on the rule of working people and self-government."

The Constitution of the Socialist Republic of Bosnia and Herzegovina of 1963, laid down in its Basic Principles, inter alia, that,

"Linked throughout their common history by their living together, by their aspirations and struggle for freedom and social progress, Serbs, Muslims and Croats, overcoming the attempts of foreign powers and local reactionary forces, have come together for the first time in freedom, equality and brotherhood in their Republic, which became the political and social form of both their unity and mutual equality and their equality with the other peoples of Yugoslavia with [p 715] whom they voluntarily entered a common state on the basis of the right to self-determination, including the right to separation: the Federal Peoples' Republic of Yugoslavia thereby secured full equality and conditions of comprehensive national development, material and cultural progress for an overall socialist transformation." (Emphasis added.)

Article 1 of the Constitution of Bosnia and Herzegovina qualified it as "a state socialist democratic community of peoples of Bosnia and Herzegovina based on the rule of working people and self-government".

53. The Constitution of the SFRY of 1974 begins with Chapter I of the Basic Principles, which was worded as follows:

"The peoples of Yugoslavia, starting from the right of each nation to self-determination, including the right to secession, on the grounds of their will freely expressed in the joint struggle of all peoples and nationalities in the national liberation war and socialist revolution . . . have created a socialist federal community of working people — the Socialist Federal Republic of Yugoslavia . . .".

In Chapter VII of the Basic Principles, it is stated, inter alia, that the Socialist Federal Republic of Yugoslavia upholds:

"— the right of each people freely to determine and build its social and political order by ways and means freely chosen;

— the right of people to self-determination and national independence and the right to wage a liberation war, in pursuit of these causes;

— regard for generally accepted norms of international law".

The Constitution of the SFRY in its operative part, defined it as a

"federal State, a state community of freely united peoples and their socialist Republics . . . based on the rule and self-management of the working class and of all working people and the socialist self-managed democratic community of working people and citizens and equal peoples and nationalities" (Art. 1 of the Constitution).

54. The Constitution of 1974 of the Socialist Republic of Bosnia and Herzegovina laid down in its Article 1:

"The Socialist Republic of Bosnia and Herzegovina is a socialist democratic State and socialist self-managed democratic community of working people and citizens, peoples of Bosnia and Herzegovina — Muslims, Serbs and Croats, with the members of other peoples and nationalities, who live in it, based on the rule and self-manage-[p 716]ment of the working class and all working people and on sovereignty and equality of the peoples of Bosnia and Herzegovina and the members of other nations and nationalities, living in it.

The Socialist Republic of Bosnia and Herzegovina is an integral part of the Socialist Federal Republic of Yugoslavia." (Emphasis added.)

Article 2 of the Constitution of Bosnia and Herzegovina stipulates:

"Working people and citizens, peoples of Bosnia and Herzegovina — Serbs, Croats and Muslims and members of other nations and nationalities shall exercise their sovereign rights in the Socialist Republic of Bosnia and Herzegovina, except for those rights which the Constitution of the SFRY has designated to be exercised in the Socialist Federal Republic of Yugoslavia in the common interest of working people and citizens, peoples and nationalities." (Emphasis added.)

The Preamble says, inter alia, that

"peoples of Bosnia and Herzegovina — Muslims, Serbs and Croats . . . along with workers and other working people and citizens and peoples and nationalities in other socialist republics and socialist autonomous provinces of the Socialist Republic of Yugo-slavia achieved significant success in . . . advancing . . , unity and equality . . ."

and further states that

"the social and political order of Bosnia and Herzegovina is based on the principles laid down in the SFRY constitution by the peoples and nationalities and working people of Yugoslavia".

The Basic Principles of the Constitution stipulate that

"The peoples of Bosnia and Herzegovina — Serbs, Muslims and Croats . . . with other peoples and nationalities of Yugoslavia, . . . based on the right to self-determination including the right to secession, have voluntarily come together in the common State — the Socialist Federal Republic of Yugoslavia, and have thereby secured full equality and the conditions for comprehensive national development , . ." (Chapter I of the Basic Principles.)

Chapter II of the same Basic Principles stipulates, inter alia, that

"the peoples of Bosnia and Herzegovina — Croats, Serbs and Muslims and members of other peoples and nationalities shall exercise within the Socialist Republic of Bosnia and Herzegovina, as a State and self-managed community, their sovereign rights and further their class and national interests." (Emphasis added.) [p 717]

It is made particularly clear that

"Starting from the principles ... of respect for freedom and independence of peoples, active peaceful coexistence, openness to the world and the need for the development of comprehensive international cooperation, the Socialist Republic of Bosnia and Herze-govina shall participate, on an equal footing with other republics and autonomous provinces, in the exercise of the foreign policy of the Socialist Republic of Yugoslavia." (Chapter X of the Basic Principles.)

On 31 July 1990 the Assembly of the Socialist Republic of Bosnia and Herzegovina approved Amendments LIX-LXXX to the Constitution of the Socialist Republic of Bosnia and Herzegovina (Official Gazette of the Socialist Republic of Bosnia and Herzegovina, No. 21 of 31 July 1990). Amendment LX replaced paragraph 1 of Article 1 of the Constitution of the Socialist Republic of Bosnia and Herzegovina and reads as follows:

"1, The Socialist Republic of Bosnia and Herzegovina is a democratic sovereign state of equal citizens, peoples of Bosnia and Herzegovina — Muslims, Serbs and Croats and members of other peoples and nationalities living in it."

Amendment LI stipulates that:

"All peoples and nationalities will be guaranteed proportionate representation in the assemblies of socio-political communities, bodies elected by them in the Presidency of SR B-H and in other State organs" (this amendment is added to Article 3 of the Constitution of the Socialist Republic of Bosnia and Herzegovina).

Paragraph 10 of Amendment LXX stipulates that:

"The Assembly of SR Bosnia and Herzegovina shall form a Council to deal with the question of the exercise of the equality of peoples and nationalities of Bosnia and Herzegovina. Members of the Council will be appointed from the ranks of deputies — members of the nations of Bosnia and Herzegovina — Muslims, Serbs and Croats in equal proportion, and respective number of deputies from the ranks of other peoples and nationalities and others who live in Bosnia and Herzegovina. The Council shall reach its decision by a consensus of the members of all nations and nationalities. The Council shall specifically discuss the issues relating to the equality of languages and alphabets; the organization and activities of cultural institutions of particular importance for the expression and affirmation of the national specificities of individual peoples and nationalities and the promulgation of regulations to implement constitutional provisions expressly determining the principles of equality among peoples and nationalities." (Emphasis added.) [p 718]

55. A consistently undeniable fact, underlying the broad spectrum of changes that have affected the Yugoslav State since its inception in 1918, was a point of departure, explicit or implicit, of all constitutional solutions: that is that Yugoslavia has primarily been a community of peoples since its birth.

The subject of changes was the number of constitutive, St ate-making peoples. At the moment of its inception in 1918, Yugoslavia was a community of three constitutive peoples (Serbs, Croats and Slovenes). The Federal Constitution of 1946 recognized the status of constitutive peoples of Macedonians and Montenegrans, who used to be taken to be parts of the Serbian national corps. Finally, the Constitution of 1963 included Muslims in the ranks of constitutive peoples.

56. Since the formation of the Yugoslav State as a federation this constant has governed fully, and without any reservation, the federal unit of Bosnia and Herzegovina. Hence, the widely used but somewhat literary qualification of Bosnia and Herzegovina as the "small Yugoslavia", where the essential characteristics of the Yugoslav federation are expressed in a narrow margin.

Federal Yugoslavia was formed under the resolution of the Second Conference of the Anti-Fascist Council of National Liberation of Yugoslavia in 1943, as a community of sovereign and equal peoples, while subsequent constitutional intervention created republics, as federal units. Thus, like the rest of the republics, Bosnia and Herzegovina was formally brought into being by its Constitution of 1946, although temporary authorities had been created since the adoption of the resolution establishing Yugoslavia as a federal State.

In the light of both the federal Constitution of 1946 and the republican Constitution promulgated the same year, Bosnia and Herzegovina was formed as a State of Serb and Croat peoples. Muslims participated in the formation of the Yugoslav federation and in Bosnia and Herzegovina itself as an integral part of the Serb or Croat peoples, or more precisely as the Serbs or Croats of Muslim religion, not as a constitutive people, endowed with the right to self-determination.

57. The constitutional solutions of 1963 changed the constitutional position of Muslims, promoting them into a constitutive people. In keeping with this change Bosnia and Herzegovina was defined by its republican Constitution of 1963 as the "state socialist democratic union of peoples of Bosnia and Herzegovina . . .". The Basic Principles of the Constitution named as "peoples of Bosnia and Herzegovina": "the Serbs, Muslims and Croats". This status was reserved for the Muslims in the constitutional regulations of 1974.

In other words, the Muslims were turned into a constitutive nation ex post, after Bosnia and Herzegovina had been formed, on the basis of the exercised right to self-determination of Serbs and Croats, as a federal unit [p 719] within the Yugoslav federation. Does this fact influence the scope and quality of the rights of Muslims as a constitutive nation? The reply can only be in the negative. Having been granted the status of a constitutive nation, the Muslims came into possession of absolutely equal rights in the same way as Serbs and Croats in Bosnia and Herzegovina. The full equality of rights of constitutive peoples was accentuated in continue? by all constitutional solutions, whether federal or in Bosnia and Herzegovina, between 1946 and 1974, This was effected not only by the use of corresponding terms (exempli causa, "the right of each people"; "full equality"; "sovereignty and equality of peoples") but by inversion in quoting the names of peoples, strikingly present in the constitutions of Bosnia and Herzegovina, so as to stress both in substance and diction the full equality of constitutive peoples. In concrete, equality is both an explicit and implicit reference to the right of "each nation to self-determination including the right to secession or unification with other peoples".

58. In the light of constitutional solutions and consequent legal and political practice resulting in the qualification of Bosnia and Herzegovina as a federation of nations, personal federation sui generis was the closest to the actual state of affairs. Such a qualification was justified by several facts of fundamental importance.

Firstly, in the light of both norms and facts, Bosnia and Herzegovina was a community of three peoples. The Republic of Bosnia and Herzegovina was not, unlike the rest of the Yugoslav republics, a genuine, original form of the State personality of the Yugoslav State, but was created ex post, as a relevant form of internal administrative and territorial division of the State in the federal phase of its existence. Ratione valorem, Bosnia and Herzegovina was not only constituted but also functioned, in political and legal terms, as a community of peoples. It suffices to point to the composition of the bodies of authority in the Socialist Republic of Bosnia and Herzegovina, The issue of cadres in Bosnia and Herzegovina was governed by the "Social compact on personal policy in SR of Bosnia and Herzegovina"FN98. Article 7 (3) thereof bound the signatories of the compact to secure:

---------------------------------------------------------------------------------------------------------------------
FN98 Official Gazette of the Socialist Republic of Bosnia and Herzegovina, No. 34 of 8 November 1982.
---------------------------------------------------------------------------------------------------------------------

"the proportionate and, in particular, adequate representation of peoples and nationalities on the assemblies of socio-political communities, state organs and bodies of socio-political organizations in the Republic and election to posts with a term of office of one or two years from among the ranks of all the peoples". [p 720]

Such a solution was also legally sanctioned. Article 170a of the Law on the Changes and Amendments of the Law on State AdministrationFN99 stipulated that any

---------------------------------------------------------------------------------------------------------------------
FN99 Official Gazette of the Socialist Republic of Bosnia and Herzegovina, No. 10 of 28 March 1991.
---------------------------------------------------------------------------------------------------------------------

"Official as head of an administrative agency and his deputy may be recalled before the end of their respective terms if so required by eligibility criteria for the equal representation of peoples ... of Bosnia and Herzegovina in State administration and in pursuance of personnel policy".

An identical provision is contained in Article 175a of the same law relating to high political officials.

The above facts suggest that Bosnia and Herzegovina was phenomeno-logically only apparently a federal unit, while substantively and materially it was a union of its constitutive peoples.

Secondly, the SFRY Constitution of 1974 and the Constitution of the Socialist Republic of Bosnia and Herzegovina promulgated the same year, defined the right to self-determination as a subjective, collective right of peoples. Such a provision was consigned in earlier constitutions. It derives from the very nature of the matter. The subject entitled to self-determination is, by definition, a people. It is yet another question that, on the one hand, the right to self-determination is exercised on the territory in question, and that, on the other, in the circumstances of a territorialized international community the consequences of the exercised right to self-deter-mination are territorialized. Overlapping of the right to self-determination and territorialization occurs, as a rule, in single-people communities, and it follows that formulations which recognize the right to a territorial entity are colloquial formulations. However, in multi-ethnic communities composed of peoples provided with equal rights, a territory is exclusively an area where equal rights of self-determination are exercised.

Thirdly, Bosnia and Herzegovina, as a federal unit, was not equipped with a right to self-determination that would include the right to secession.

Fourthly, Bosnia and Herzegovina likewise possessed none of the classic attributes of statehood which are characteristic of federal units in modern federations. Although a "constitutive element of the federation" Bosnia and Herzegovina was, in the structure of Yugoslav federalism like other federal units, designed — both constitutionally and legally — in a specific way. After 1963, it had dichotomic properties: on the one hand, it possessed the powers characteristic of most of the other federal units in contemporary federations, and, on the other, it represented the socialist [p 721] self-managed democratic community of working people and citizens, peoples of Bosnia and Herzegovina — Muslims, Serbs and Croats — and members of other peoples and nationalities living in it, based on the rule and self-management of the working class and all working people, and the sovereignty and equality of peoples of Bosnia and Herzegovina (Article 1 of the Constitution of the Socialist Republic of Bosnia and Herzegovina of 1974). That dichotomy of Bosnia and Herzegovina's personality within the Yugoslav constitutional system is a result of a fundamental ideological overtone of the premise that a State, as a class creation, is a passing historical phenomenon, incompatible with the nature of a socialist society and consequently doomed to wither away. "De-etati-zation" was the main motto of the Yugoslav constitutional approach after the introduction of self-management as a basic social relationship — society versus State was the fundamental political orientation which operated even in the domain of legal norms. "De-etatization" gave birth to "working people and peoples" so that federalism was no longer "governmental" but "sociopolitical". Mutual relations between the parts of the dichotomy of Bosnia and Herzegovina attributed more weight to the part representing the self-managing community. This is clearly suggested by the constitutional positioning of self-management and the ensuing social ownership over the means of production, as the basic social relationship (Chapter II of the Basic Principles of the Constitution of the Socialist Republic of Bosnia and Herzegovina of 1974). Hence, exempli causa Bosnia and Herzegovina itself is defined as the "socialist self-managed democratic community" (Article 1 of the Constitution of the Socialist Republic of Bosnia and Herzegovina of 1974), while "the Assembly is an organ of socialist self-management and the highest deliberative body in the domain of rights and obligations of the socio-political community" (Article 136 of the Constitution of Bosnia and Herzegovina).

The fact that Bosnia and Herzegovina is essentially a community of peoples has been confirmed by the consolidated text of the Constitution of Bosnia and Herzegovina adopted in March 1993 after the proclamation of the sovereignty and independence of that federal unit as well as by a series of instruments on the international plane. Article 1 of that consolidated text defines the Republic of Bosnia and Herzegovina as a "sovereign and independent state ... of the peoples of Bosnia and Herzegovina — Moslems, Serbs, Croats and members of other peoples living in it". The precise sense of that wording may be ascertained when one takes into account the inter-pretative provision of Article 269 of the refined text of the Constitution (Transitional Final Provisions). Article 269 provides that:

"The term used in the Constitution 'members of other peoples who live in the Republic' or 'members of other peoples who live in it' denotes the nationalities of national minorities in Bosnia and Herzegovina."

The above-mentioned text of the Constitution likewise conserved the substantial characteristics of Bosnia and Herzegovina as a personal [p 722] federation. On the basis of the principle of the "equality of the peoples of Bosnia and Herzegovina" it is stipulated that:

"In the assemblies of the socio-political communities, and in the bodies elected by them of the Presidency of the Republic of Bosnia and Herzegovina, proportional representation shall be guaranteed to the peoples of Bosnia and Herzegovina and to the other peoples living in it."FN100

------------------------------------------------------------------------------------------------------------
FN100 Article 3 (1.3) of the refined text of the Constitution of the Republic of Bosnia and Herzegovina.
------------------------------------------------------------------------------------------------------------

All the plans for the constitutional arrangements of Bosnia and Herzegovina submitted during the negotiations about the peaceful solution of the conflict in Bosnia and Herzegovina start from the qualification of Bosnia and Herzegovina as a community of peoples.

In the draft "Constitutional Structure for Bosnia and Hercegovina", submitted by the Co-Chairmen on 27 October 1992, and on 16 November specifically endorsed by the Security Council (resolution 787 (1992) para. 1) (the so-called Vance-Owen Plan), it is said, inter alia, that: "(c) The constitution is to recognize three 'constituent peoples', as well as groups of 'others'"FN101. Article 1 of Chapter 1 of the "Constitutional Arrangements of the Union of Republic of Bosnia and Hercegovina" submitted by the Co Chairmen Owen and Stoltenberg in September 1993, envisaged that:

---------------------------------------------------------------------------------------------------------------------
FN101 ICFY/6, Annex I, S/25403.
---------------------------------------------------------------------------------------------------------------------

"[t]he Union of Republic of Bosnia and Hercegovina is composed of three Constituent Republics and encompasses three constituent peoples: the Muslims, Serbs and Croats, as well as a group of other peoples"FN102.

------------------------------------------------------------------------------------------------------------
FN102 Agreement relating to Bosnia and Herzegovina, ICFY, Appendix I. 131
------------------------------------------------------------------------------------------------------------

In the Preamble to Annex 4 of the Dayton Agreement "Bosniacs, Croats, and Serbs" are qualified as constituent peoples (A/50/790/S/1995/999, p. 59). So it can be said that the fact that Bosnia and Herzegovina is essentially a community of peoples is recognized on an international plane.

3. The promulgation of Bosnia and Herzegovina as a sovereign State

59. In the part of the Memorial entitled: "The International Status of Bosnia and Herzegovina", "(a) The alleged absence of statehood of Bosnia and Herzegovina", the Applicant, summing up its views of the subject matter, states:

"The existence of the main elements in this respect has been summed up by the Arbitration Commission in its Opinion No. 11 of 16 July 1993: [p 723]

'in a referendum held on 29 February and 1 March 1992, the majority of people of the Republic have expressed themselves in favour of a sovereign and independent Bosnia, the result of the referendum was officially promulgated on 6 March, and since that date, notwithstanding the dramatic events that have occurred in Bosnia and Herzegovina, the constitutional authorities of the Republic have acted like those of sovereign state in order to maintain its territorial integrity and their full and exclusive powers'."FN103

-----------------------------------------------------------------------------------------------------------
FN103 Memorial, para. 4.2.1.10.
------------------------------------------------------------------------------------------------------------


60. Two conditions should have been met to make the promulgation of sovereignty and independence of Bosnia and Herzegovina legally perfect, in the light of internal law of SFRY, as follows:

first, that Yugoslav law should have provided for the right to secession of federal units; and

second, that the procedure prescribed by the Constitution and law should have been observed, for,

"[w]hether the federation dissolves into two or more states also brings into focus the doctrine of self-determination in the form of secession. Such a dissolution may be the result of an amicable and constitutional agreement or may occur pursuant to a forceful exercise of secession. In the latter case, international legal rules may be pleaded in aid, but the position would seem to be that (apart from recognised colonial situations) there is no right of self-determination applicable to independent states that would justify the resort to secession."FN104

-----------------------------------------------------------------------------------------------------------
FN104 M. N. Shaw, International Law, 1986, p. 139.
------------------------------------------------------------------------------------------------------------

61. The Yugoslav federal units possessed no right to secession (jus secessionis), beyond any doubt. The right to self-determination was absolutely reserved for constitutive nations (see paras. 48-56 above).

In the part relating to external self-determination, the provisions of the SFRY constitution offer the conclusion that the right to external self-determination had been fully exercised.

To begin with "the right to self-determination, including the right to secession" was formulated in the past tense in the SFRY Constitution, as in all previous constitutions of the federal Yugoslavia. Then, the right in question was located in the Basic Principles of the Constitution and there was no mention of it in the operative provisions of the Constitution. Finally, neither the Constitution nor the law envisaged any procedure for an exercise of the right to self-determination. In other words, the constitutive nations of Yugoslavia exercised the right to external self-determination at the time of the formation of the federal Yugoslavia. Once they had decided to live in a common State they dispensed with that right, which from that time on constituted a legal merit of existence of the com-[p 724] mon state, its validus titulus, but not a living, topical right to be resorted to at will. This does not mean, however, that the issue of the right to external self-determination was closed for good. It could, like other issues, have been redefined in the guaranteed constitutional procedure.

The Constitutional Court of Yugoslavia, as the main agent securing constitutionality and legality in the constitutional system of SFRY, underscored in its decision IU No. 108/1-91 (Official Gazette of SFRY, No. 83/91) that, inter alia:

"this right [right to self-determination including the right to secession] may be exercised only under conditions and in a manner to be determined in conformity with the SFRY constitution and the right of peoples of self-determination including the right to secession — under an enactment promulgated by the SFRY Assembly or in agreement among the peoples of Yugoslavia and their republics" (emphasis added).

Therefore, in the light of the relevant provisions of the SFRY Constitution, the ruling of the Constitutional Court of Yugoslavia reads as follows:

"any enactment of a republic that declares the republic to be a sovereign and independent state — is an unconstitutional change of the state order of Yugoslavia, i.e., an act of secession, which, by virtue of the decision of the Constitutional Court of Yugoslavia can have no legal effect"FN105.

------------------------------------------------------------------------------------------------------------
FN105 Reply of the Constitutional Court of Yugoslavia to the question of Lord Carrington whether it was a matter of dissolution or secession — referred to by the Arbitration Commission of ICFY, No. SU 365/91.
------------------------------------------------------------------------------------------------------------

The proposal to resolve the controversies surrounding the exercise of the right to external self-determination constitutione artis, namely via a corresponding constitutional revision, was contained in the "Concept for the Future Organization of the State proposed by a Working Group comprising Representatives of all the Republics as a basis for further Talks between the Republican President and the State Presidency". Starting from the basic premise that

"The Yugoslav state community, seen as a federal state of equal citizens and equal peoples and their republics [footnote commentary: Kasim Trnka from Bosnia and Herzegovina proposed that the republics be placed first] and as a democratic state, will be founded on human and civil rights and liberties, the rule of law and social justice",[p 725]

the "Concept" contains a part entitled "Proposed Procedure for Disassociation from Yugoslavia" which reads:

"In connection with initiatives in certain republics for secession from Yugoslavia, that is, the 'disunion' of the country, and in view of the general demand for a peaceful, democratic and constitutional resolution of the constitutional crisis, the question of procedure arises with regard to the possible realization of these initiatives.

The aim of the initiatives is the withdrawal of certain republics from the Socialist Federal Republic of Yugoslavia. They are based on the permanent and inalienable right of peoples to self-determination and should be constitutionally regulated.

The right of peoples to self-determination, as one of the universal rights of modern law, is set out in the basic principles of the SFRY Constitution.

However, the realization of the right of peoples to secession, which includes the possibility of certain republics' withdrawal from the SFRY, is not regulated by the SFRY Constitution, It is therefore necessary to amend the SFR Y Constitution in order to create a basis for exercising this right.

Revision of the SFRY Constitution on these lines should be based on the democratic nature of the entire process of statement of views, the equality of the Yugoslav nations, the protection of fundamental human and civil rights and freedoms, and the principle of the peaceful resolution of all disputes.

In keeping with the above, appropriate amendments should be made to the SFRY Constitution which would in a general manner regulate the procedure for the execution of the right of peoples to secession and thereby the withdrawal of certain republics from the SFRY.

The amendments to the SFRY Constitution should express the following commitments:

1. The right to launch the initiative for a certain republic to withdraw from the SFRY is vested in the Assembly of the respective republic, except if otherwise regulated by the republican constitution.

2. A decision on the initiative is taken at a referendum at which the free, direct and secret voting of all citizens of the republic is ensured.

3. During the preparations for the referendum, the public and voters will be informed objectively and on time of the importance and the consequences of the referendum.

4. The referendum will be monitored by representatives of the Assembly of Yugoslavia and, possibly, representatives of other republics and interested international institutions.
[p 726]

5. A decision will be deemed adopted if it receives more than one half of the votes of all registered voters.

6. In republics populated by members of several Yugoslav nations, the necessary majority will be established for each Yugoslav nation separately. If one nation votes against, all settlements in which this nation is predominant and which border on the remaining territory of Yugoslavia and can constitute its territorial compactness will remain part of the SFRY.

7. If the result of the referendum is negative, the same initiative may be launched after the expiry of a period of five years.

8. The Assembly of the republic will inform the public and the Assembly of Yugoslavia of the result of the referendum, and will submit to the Assembly of Yugoslavia a proposal to adopt a constitutional enactment on the withdrawal of the respective republic from the SFRY, in accordance with the will of the people expressed at the referendum.

9. The Assembly of Yugoslavia acknowledges the legality and legitimacy of the expressed will of the people and members of nations, and instructs the Federal Government to carry out the necessary preparations for the adoption of the enactment on withdrawal from the SFRY.

In this context, the Federal Government is obligated to:

(a) prepare a proposal for the division of jointly created values and the property of the federation (movable and immovable property) in the country and abroad registered as the property of the federation; international obligations and claims; assets of the National Bank of Yugoslavia; foreign currency, commodity and monetary reserves of the federation, property of the Yugoslav People's Army, archives of Yugoslavia, certain infrastructure facilities, licences and other rights and obligations ensuing from ratified international conventions. The Federal Government proposal would also include issues relating to citizenship, pension and other rights of citizens and the like. This requires the establishment of common responsibility for the obligations and guarantees of the SFRY toward foreign countries;

(b) propose to the Assembly of Yugoslavia the manner of the election and authorization of a parity body or committee which will prepare a proposal for the division of rights and obligations and submit it to the Assembly of Yugoslavia;

(c) prepare proposals for the territorial demarcation and the frontiers of the future states and other issues of importance for formulating the enactment on withdrawal.

10. On the basis of the Federal Government proposals regarding material and territorial issues, the Assembly of Yugoslavia will [p 727] formulate, with the consent of the republican assemblies, a constitutional enactment (constitutional law) on withdrawal from the SFRY which, among other things, establishes:

— citizens' right of choice (term and manner in which citizens will state their choice in the event of territorial changes), and the obligation to ensure just compensation for change of residence);

— the obligation to provide judicial protection of the rights of citizens, legal entities and members of certain nations (compensation for damages resulting directly from the execution of the right to withdrawal, etc.);

— the obligation to harmonize certain laws and other enactments with changes in the structure of the SFRY;

— supervision and control of the enforcement of determined obligations ;

— other issues which must be resolved by the time of the definitive disassociation (judiciary, environment protection, joint ventures and the like);

— the transitional period and the moment of disassociation from the SFRY."FN106

------------------------------------------------------------------------------------------------------------
FN106Focus, Special Issue, January 1992, pp. 31-33.
------------------------------------------------------------------------------------------------------------

However, Bosnia and Herzegovina did not accept the proposed "Concept", as clearly demonstrated by the arrangements for the referendum on "sovereign and independent Bosnia".

62. The promulgation of Bosnia and Herzegovina as a "sovereign and independent Bosnia" was, according to item 4.2.1.10 of the Memorial, composed of two elements, two actions:

(1) a referendum held on 29 February and 1 March 1992, when the majority of people of the Republic expressed themselves in favour of a sovereign and independent Bosnia; and

(2) the official promulgation of the results of the referendum on 6 March 1992. The sovereignty and independence of Bosnia were constituted on that date, in view of the fact that according to Bosnia and Herzegovina:

"Since that date notwithstanding the dramatic events that have occurred in Bosnia-Herzegovina, the constitutional authorities of the Republic have acted like those of sovereign State in order to maintain its territorial integrity and thus full and exclusive powers." (Emphasis added.)

A correct interpretation of the above-quoted statement of Bosnia and Herzegovina leads one to the conclusion that Bosnia and Herzegovina [p 728] has been constituted as "sovereign and independent Bosnia" since the date of promulgation of the referendum results. In other words, the promulgation of the results of the referendum held on 29 February and 1 March had a constitutive, State-making character.

63. The referendum of 29 February and 1 March asked the following:

"Are you for a sovereign and independent Bosnia and Herzegovina, a State of equal citizens, peoples of Bosnia and Herzegovina — Muslims, Serbs and Croats and members of other peoples living in it?"

The referendum was called in order to "determine the status of Bosnia and Herzegovina". The decision to call the referendum was taken by virtue of Article 152 of the Constitution of the Socialist Republic of Bosnia and Herzegovina, the provision of item 5, line 9, of Amendment LXXI to the Constitution of the Socialist Republic of Bosnia and Herzegovina and the provisions of Articles 3 and 26 of the Law on ReferendumFN107.

---------------------------------------------------------------------------------------------------------------------
FN107 Official Gazette of the Socialist Republic of Bosnia and Herzegovina, No. 29 (1977) and 24 (1991).
---------------------------------------------------------------------------------------------------------------------

There can be no doubt that the Assembly of the Socialist Republic of Bosnia and Herzegovina had the authority to call a referendum, in the light of the above-mentioned facts — both a preliminary referendum, i.e., a referendum for preliminary voting, and a subsequent one for the confirmation of laws, regulations and other enactments.

64. It is questionable, however, whether the Assembly of the Socialist Republic of Bosnia and Herzegovina was entitled to call a referendum in order to determine the status of Bosnia and Herzegovina.

Starting from a general provision that "the Assembly of SR Bosnia and Herzegovina is exercising its rights and responsibilities on the basis of and within the constitution and law"FN108 and abiding by the relevant rule on the relationship between the constitution and law, we now turn to Article 314 of the Constitution of the Socialist Republic of Bosnia and Herzegovina which stipulates the competences of the Assembly of the Socialist Republic of Bosnia and Herzegovina:

---------------------------------------------------------------------------------------------------------------------
FN108 Article 313 of the Constitution of the Socialist Republic of Bosnia and Herzegovina.
---------------------------------------------------------------------------------------------------------------------

"The Assembly of SR Bosnia and Herzegovina shall:

(1) Decide on the changes of the Constitution of the Socialist Republic of Bosnia and Herzegovina; submit a proposal or opinion, or issue an approval of the changes to the Constitution of the SFRY;

(2) Determine the policy and decide on other fundamental issues of relevance to the political, economic, social and cultural development of the Republic;

(3) Consider the issues of common interest to the organizations of associated labour and other self-managed organizations and com-[p 729]munities and harmonize their relations and interests; encourage self-management agreements and social compacts;

(4) Consider the issues in the sphere of foreign policy and international relations: approve the negotiation of international treaties in cases stipulated by the SFRY Constitution;

(5) Determine the proposals, or approve arrangements for relationships to be decided on by the Assembly of the Socialist Federal Republic of Yugoslavia on the merit of a proposal, namely agreement by the republic assemblies;

(6) Adopt the social plan of Bosnia and Herzegovina, the budget of the Republic, the balance sheet, the republican global balance of resources and the land development plan of Bosnia and Herzegovina; pass the laws and other regulations and general enactments; issue authentic interpretations of republican laws;

(7) Decide on modifications of republican borders;

(8) Determine the system of national defence in the Republic;
(9) Grant amnesty for criminal offences stipulated in the law of the Republic;

(10) Decide on the indebtedness of the Republic and on calling public loans in the Republic;

(11) Establish work organizations;

(12) Call a republican referendum;

(13) Determine the policy of enforcement of republican laws and other regulations and general enactments and obligations of the organs and organizations in the Republic and enforcement of the federal and republican laws;

(14) Supervise politically the performances of the Executive Council and republican bodies of authority and their organizations and issue general guidelines; supervise politically the holders of public and other social functions, reporting to the Assembly;

(15) Hear the opinions and proposals of the Constitutional Court of Bosnia and Herzegovina concerning the protection of constitutionality and legality;

(16) Hear the reports of the republican judiciary on law enforcement and their performance and issue position papers on these reports;

(17) Exercise public surveillance;

(18) Elect and recall the president and members of the Presidency of the Socialist Republic of Bosnia and Herzegovina and the members of the Presidency of the Socialist Federal Republic of Yugoslavia;

(19) Elect and recall the delegation of the Assembly to the Chamber of Republics and Provinces in the SFRY Assembly; [p 730]

(20) Elect and recall the President and Vice-President of the Assembly, members of commissions, committees and of other bodies of the Assembly;

(21) Elect and recall the President and members of the Executive Council, the President and Judges of the Constitutional Court of Bosnia and Herzegovina, the President and Judges of the Supreme Court of Bosnia and Herzegovina and other courts stipulated by law and members of the Council of the Republic;

(22) Appoint and recall republican Secretaries and other executives of the republican bodies of authority and organizations acting in the spheres of interest of the Republic; the republican Social Attorney of Self-management, the Secretary-General and secretaries of the Assembly, the Republican prosecutor, the Governor of the National Bank of Bosnia and Herzegovina and other officials, members of decision-making bodies and members of managing bodies of the organizations stipulated as such by this constitution and the law;

(23) Decide on the extension of terms of office of the delegates to the assemblies of socio-political communities;

(24) Perform other functions laid down in the present Constitution.
The Assembly may pass declarations, resolutions and recommendations."

The provision of paragraph 12 of Article 134 of the Constitution entitling the Assembly "to call a referendum" means that the Assembly is to call the referendum on issues falling within its competence. The need for such an interpretation is found in the Law on Referendum which says that the "Assembly of SR Bosnia and Herzegovina may call a referendum on issues falling within its purview" (Art. 26 of the Law). The formulation of the referendum question clearly indicates the intention of changing the status of Bosnia and Herzegovina in terms of public law. The ratio of the referendum was to transform Bosnia and Herzegovina from a federal unit within the Yugoslav federation into "sovereign and independent Bosnia" as the referendum question reads. If this were not the case, the referendum would have been devoid of any purpose in view of the fact that certain elements of statehood inherent to the Yugoslav model of federalism were accorded to Bosnia and Herzegovina at the time when the referendum was called.

The purpose of the referendum question was, in the strictly formal legal context, to determine the status of Bosnia and Herzegovina in terms of public law. Hence, the purpose of referendum was contrary both to the Constitution of Bosnia and Herzegovina and the Constitution of SFRY. More particularly, the Constitution of Bosnia and Herzegovina stipulates in Article 1 (2) that the Socialist Republic of Bosnia and Herzegovina is a part of SFRY. The Constitution of SFRY defined the federation as "a federal state ... of socialist republics" (Art. 1 of the Constitution), one member of which, besides other republics, was the Republic of Bosnia and Herzegovina (Art. 5 (1) of the Constitution) and provided that the [p 731] "frontier of the SFRY cannot be changed without the consent of all the republics" (Art. 5 (3) of the Constitution). Obviously, in terms of the relevant constitutional regulations, the very fact of calling a referendum on the status of Bosnia and Herzegovina constituted a potential threat to the territorial integrity of SFRY protected by the SFRY Constitution, or more particularly, an act incriminated by the Penal Code of SFRY.

The very promulgation of the "sovereignty and independence" of Bosnia and Herzegovina on the basis of the referendum held, constituted a threat to the territorial integrity of the SFRY.

65. The act of launching a referendum in order to "determine the status of Bosnia and Herzegovina" was formally and materially unconstitutional.

Elements of formal unconstitutionality are demonstrated by the fact that the Assembly of the Socialist Republic of Bosnia and Herzegovina called a referendum which fell outside its constitutionally and legally limited jurisdiction. In concreto, this is a case of specific non-competence, because the organ otherwise competent to call, a referendum, having called a referendum on the "status of Bosnia and Herzegovina", had acted ultra vires. At the same time, calling a referendum on the "status of Bosnia and Herzegovina" constituted an unconstitutional act in the material sense (material unconstitutionality), because the building of Bosnia and Herzegovina as a "sovereign and independent" State, taken per se, was contrary to the SFRY Constitution. More particularly, the "sovereignty and independence of Bosnia" means an automatic modification of the State frontiers of SFRY, while by virtue of the SFRY Constitution the State territory is but one (Art. 5 (1) of the Constitution) and "the frontier of SFRY cannot be changed without the consent of all republics" (Art. 5 (3) of the Constitution). Moreover, calling a referendum was materially unconstitutional in terms of the Constitution of Bosnia and Herzegovina itself, Amendment LXX to the Constitution of the Socialist Republic of Bosnia and Herzegovina established, in its paragraph 10, a Council entrusted with the exercise of the right to equality of nations and nationalities of Bosnia and Herzegovina. The mandate of the Council is inter alia to "consider in particular the questions relating to . . . the promulgation of regulations ensuring the materialization of constitutional provisions which provide explicitly for the principle of equality of peoples and nationalities". The Council is composed of an

"equal number of deputies from among the ranks of members of peoples of Bosnia and Herzegovina — Muslims, Serbs and Croats, and a corresponding number of deputies members of other people and nationalities and the others who live in Bosnia and Herzegovina",

who are to take decisions "on the merit of agreement of members from among the ranks of all peoples and nationalities". [p 732]

The ratio legis of Amendment I..XX (10) certainly lies in ensuring and guaranteeing the equality of peoples. The significance attached to the Council, within the constitutional system of Bosnia and Herzegovina, is amply demonstrated in paragraph 10, which says that

"in questions of interest to the exercise of equality of peoples and nationalities in B-H, at the proposal of the Council, the Assembly shall decide, by means of a specific procedure set out in the Rules of Order of the Assembly of the Socialist Republic Bosnia and Herze-govina, by a two-thirds majority of the total number of deputes".

The Council was designed by the Constitution as an unavoidable instance, a forum where deliberations were concentrated and proposals originated for the equality of peoples. In view of these facts, the proposal to call a referendum on the "status of Bosnia and Herzegovina" must have been an issue for consideration by the Council, as this is the question that directly infringed upon "the principles of equality among peoples and nationalities".

The circle of formal and material unconstitutionality encompasses also the act of "official promulgation of the results of the referendum on March 6, 1992". The qualification of "official promulgation" invokes, mutatis mutandis, the relevance of the facts corroborating the formal and material unconstitutionality of calling the referendum on the status of Bosnia and Herzegovina.

The referendum on the "status of Bosnia and Herzegovina" falls into the category of the so-called preliminary referenda in the constitutional regulation of the Socialist Republic of Bosnia and Herzegovina, since the purpose had been a preliminary voting of citizens on the relevant issue of the status of Bosnia and Herzegovina. That is why the "official promulgation of the results of a referendum" is, actually, a legal act. More particularly, voting of citizens in a referendum is no decision in formal terms, irrespective of whether the result of the voting is or is not binding on the organ which called the referendum. The result of the referendum is a material condition for decision-making in formal terms and this is, in the present case, the nature of the "official promulgation".

Such a legal nature of the "official promulgation" of a federal unit of Bosnia and Herzegovina as a "sovereign and independent" State constitutes an additional aspect of material unconstitutionality in respect to the relevant decisions of the Constitution of the Socialist Republic of Bosnia and Herzegovina. More particularly, Article 252 of that Constitution stipulated that the:

"[s]acred and inalienable right and responsibility of peoples and nationalities ... of Bosnia and Herzegovina is to safeguard and foster freedom, independence, sovereignty, territorial unity and the constitutionally established social system of the SFRY and the Socialist Republic Bosnia and Herzegovina" (emphasis added). [p 733]

Item 7 of Amendment LXIX to the Constitution of the Socialist Republic of Bosnia and Herzegovina provided that: "Political organizations and acts aimed at the forceful change of the constitutionally established system, and threats to the territorial unity and independence of SFR Y" (emphasis added) are prohibited. Both of the constitutional provisions mentioned above include "territorial unity" as a constitutionally protected object while "official promulgation" is a form of direct threat to that object.

66. The referendum for determination of the status of Bosnia and Herzegovina was called in the form of a referendum of citizens. This fact derives from the method of voting at the referendum, which remained undisputed by Bosnia and Herzegovina, as it stated in its Memorial, in the context of the promulgation of its sovereignty and independence (Memorial, para. 4.2.1.10), inter alia, that "the majority of the people of the Republic" voted positively on the referendum question. The use of the term "people" in the singular undoubtedly suggests that Bosnia and Herzegovina is also of the view that this was but a civic referendum.

Was a civic referendum, in the form of a direct expression of the will of citizens, quite apart from the questions elaborated in items 5 and 6, a good way in which to decide the "status of Bosnia and Herzegovina"? Civic referendum is, per definítionem, a form of the exercise of national sovereignty, that is to say, the rule of the people as Demos. Since three peoples exist in Bosnia and Herzegovina and are provided with the right to self-determination, it is indisputable, irrespective of the reasons stated in paragraphs 5 and 27 of this opinion, that the form of civic referendum is absolutely inadequate to express the will of each of the three peoples. In some sort of ultimately strained hypothesis that "sovereign and independent Bosnia" was voted for by such a majority of citizens embodying the majority of each of the members of the three peoples, it might be said that a civic referendum consummated the national referendum, although per se it was not such a referendum. But that was not the case, as is known. In view of the fact that all the three peoples of Bosnia and Herzegovina are, by virtue of the Constitution of Bosnia and Herzegovina, "sovereign and equal", a national referendum is only relevant for the direct exercise of the right to self-determination, A separate exercise of the right to self-determination could have been anticipated by means of a corresponding decision taken by elected representatives of the three peoples of Bosnia and Herzegovina, particularly as in 1990, democratic multiparty elections were held in Bosnia and Herzegovina. Maps of constituencies correctly mirrored the ethnic structure of Bosnia and Herzegovina since the national parties of the three peoples individually gathered practically all the votes of their national corps.

The referendum was an inadequate form of voting on the "status of Bosnia and Herzegovina" not only because of the reasons relating to its constitutionality and essential inability to express the will of the three peoples of Bosnia and Herzegovina, but because of the very provisions of the Law on Referendum on the basis of which it was held. [p 734]

The provisions of the Law on Referendum of Bosnia and Herzegovina taken per se are certainly not formulated so as to imply the possibility of deciding "on the status of Bosnia and Herzegovina" by means of a referendum, as designed by the Law.

Apart from the general provisions on calling the referendum already discussed in paragraph 5 of this opinion, the provisions concerning the method of decision-making and the individuals participating in the voting are also of relevance.

Article 33 of the Law stipulates that the

"decision on referendum is to be taken by a majority vote of all working people and citizens registered as voters in the territory or part of the territory of SR of Bosnia and Herzegovina where the referendum is called".

The decision at the referendum is to be taken by majority vote. Leaving aside the issue of the legality of a referendum, a logical question arises, i.e., whether a valid issue, such as "the status of Bosnia and Herzegovina", may possibly be decided by simple majority. The rational reason underlying this question relates to the fact that the Constitution of the Socialist Republic of Bosnia and Herzegovina stipulated voting of at least two-thirds of the total number of voters of the Socialist Republic of Bosnia and Herzegovina on the question of a change of borders of the Socialist Republic of Bosnia and Herzegovina (Amendment I XII to Article 5 of the ConstitutionFN109). In other words, the constitutional requirement for the correction of indirectly determined lines of administrative division within the federation was a two-thirds majority, while the Law on Referendum required a simple majority for the decision on the status of Bosnia and Herzegovina in terms of public law. This is, in my view, sufficient proof that the legislator did not, when passing the Law on Referendum (either irrespective of the Constitution of the Socialist Republic of Bosnia and Herzegovina or just relying on the Constitution of the Socialist Republic of Bosnia and Herzegovina), have in mind a referendum of that kind. More particularly, it is difficult to imagine that the legislator would lay down much stricter requirements for a referendum on the change of borders, which in the practice of the Yugoslav federal units was nothing but a couple of hectares of pasture lands, forests or villages, than for a referendum on the fateful, existential question of the very federal unit.

---------------------------------------------------------------------------------------------------------------------
FN109 Official Gazette of the Socialist Republic of Bosnia and Herzegovina, No. 21.(1990).
---------------------------------------------------------------------------------------------------------------------

The Law on Referendum also stipulated that "all working people and citizens included in voters' lists in the territory, namely that part of territory of SR B-H where referendum shall take place", shall have the right to vote in the referendum (Art. 33 of the Law). Such a provision raises the question about who in fact was voting at the referendum. The provision entitling "all working people and citizens" to vote means that the criterion of eligibility to vote was not citizenship in the republic. The only [p 735] criterion was residence, since it was a condition of enlistment for voting. Hence, the right to vote in the referendum was, for instance, accorded to Slovenes or Macedonians, who had a residence in Bosnia and Herzegovina, while Muslims or Serbs, citizens of Bosnia and Herzegovina, who resided in another republic were deprived of that right.

67. Finally, from the standpoint of the Constitutional law of SFRY, it would be hard to imagine a more meritorious judgment on the legal evaluation of the referendum on the "status of Bosnia and Herzegovina" than the one handed down by the Constitutional Court of Yugoslavia as the main proponent of constitutionality and legality in the constitutional system of SFRY (Art. 375 of the SFRY Constitution). The Constitutional Court of Yugoslavia never took up the referendum on the status of Bosnia and Herzegovina as a separate issue. However, it made several rulings on the analogous acts of federal units which had promulgated "sovereignty and independence" before Bosnia and Herzegovina. Apart from the actual decisions of the Constitutional Court of Yugoslavia in the concrete cases, we shall quote from relevant parts of the explanations of those decisions since they extend beyond the framework of the concrete issue in formal and material terms, on which the court ruled. In other words they constitute a meritorious legal evaluation of the highest judicial instance in SFRY on the relevant question. In ruling IU No. 108/1-91 (Official Gazette of SFRY, No. 83/91), the Constitutional Court pointed out, inter alia, that

"The right of peoples of Yugoslavia to self-determination, including the right to secession, may not, in the view of the Constitutional Court of Yugoslavia, be exercised by unilateral acts of the peoples of Yugoslavia, namely enactments of the Assemblies of the republics within the Socialist Federal Republic of Yugoslavia . . . Although the procedure for the exercise of the right to self-determination including the right to secession is not provided for by the SFRY Constitution, this does not mean that the right can be exercised on the basis of unilateral acts on self-determination and secession. No people and, more particularly, no assembly of a republic can, by means of a unilateral act, decide on the exercise of that right before the procedure and conditions governing the procedure have been jointly determined for the exercise of that right.

A unilateral promulgation of sovereignty and independence of republics making up the Socialist Federal Republic of Yugoslavia implies, in the opinion of the Constitutional Court of Yugoslavia, an infringement upon the provisions of the SFRY Constitution con-cerning the composition of the Socialist Federal Republic of Yugoslavia and of the frontiers of Yugoslavia as a federal state and state community of voluntarily united peoples and their socialist republics." [p 736]

It is worth mentioning that the above ruling was approved in the course of the court deliberations in full composition as provided for in Article 381 of the SFRY Constitution and in the presence of both judges from Bosnia and Herzegovina.

C. Legality of the Proclamation of Independence of Bosnia and Herzegovina in the Light of International Law

68. In a series of international instruments starting with the United Nations Charter and continuing via the Declaration on the Granting of Independence to Colonial Countries and Peoples (I960), and the Covenants on Human Rights (1966), to the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations (1974), the equal rights and self-determination of peoples has been of essential universal value of the democratic ordre public embodied in the United Nations Charter, and raised to a positive norm of general international law with the character of jus cogensFN110. In the case concerning East Timor, the Court in its Judgment stated inter alia:

---------------------------------------------------------------------------------------------------------------------
FN110 J.J.Caicedo Perdomo, "La teoría del ius cogens en derecho internacional a la luz de la Convención de Viena sobre el derecho de los tratados", Revista de lo Academia colombina de jurisprudencia, January-June 1975, pp. 216-274; L. Alexidze, "Legal Nature of jus cogens in Contemporary International Law", Recueil des cours de l'Académie de droit international de La Haye, Vol. 172, 1981, p. 262; Bedjaoui notes that "Among those principles, 'the right of complete independence' and 'the right of self-determination' are considered to be inalienable and must accordingly be recognized immediately and unconditionally" [translation by the Registry]. "Non-alignement et droit international", ibid., Vol. 151, 1976, p. 421. M. Sa hovic, "Codification of the Legal Principles of Coexistence and the Development of Contemporary International Law", in Principles of International Law Concerning Friendly Relations and Cooperation, 1972, p. 23 ; draft rules on International Responsibility; the list of international crimes covers also "(b) a serious breach of an international obligation of essential importance of safeguarding the right of self-determination of peoples" (Art. 19), Fifth Report on State Responsibility, Yearbook of the International Law Commission, 1976, Vol. II, Part Two, p. 75).
---------------------------------------------------------------------------------------------------------------------

"In the Court's view, ... the right of peoples to self-determination, as it is evolved from the Charter and from United Nations practice, has an erga omnes character ... the principle of self-determination of peoples has been recognized by the United Nations Charter and in the jurisprudence of the Court (see Legal Consequences for States of the Continued Presence of South África in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, pp. 31-32, paras. 52-53; Western Sahara, Advisory Opinion, I.C.J. Reports 1975, pp. 31-33, paras. 54-59); it is one of the essential principles of contemporary international law."FN111

------------------------------------------------------------------------------------------------------------
FN111 I.C.J. Reports 1995, p. 102.
------------------------------------------------------------------------------------------------------------

[p 737]
69. Equal rights and self-determination of peoples is a complex norm in terms of structure.

On the one hand, the very phrase "equal rights and self-determination of peoples" is a link, an amalgam of a general legal principle ("equal rights") and the norm on the self-determination of peoples. "Equal rights" in the above phrase, as a normative substitute for "equality of States", has a broader meaning because it defines, in a broader form, the relationship of each people taken individually to the sum of rights recognized to peoples under international law. Its virtual meaning lies in a prohibition of any distinction between peoples and the respective rights recognized to them. In other words, the principle of "equal rights" defines the scope of the norms of international law that relate to the status of peoples. The right to self-determination does, however, have an immediate material substance as

"all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development and every State has the duty to respect this right in accordance with the provisions of the Charter" (para. 1 of the Declaration on Principles).

On the other hand, the norm on "equal rights and self-determination of peoples" is incomplete, less than full norm in view of its application. More particularly, it contains no definition of the notion of "people" and no such definition, as an institutional mechanism authorized to define what a "people" is, can be found to exist in the international law in force. That is why the only way to make the norms on "equal rights and self-determination of peoples" operational and effective is to take the norms of internal law which define "peoples", as relevant (paras. 44-45 above). The norms of internal law can likewise be relevant in the event of an exercise of external self-determination in States comprising more than one people, in view of the nature of the prohibition of violations of territorial integrity and political unity.

70. Certain strong arguments support the assertation that the proclamation of Bosnia and Herzegovina as a "sovereign and independent" State within its administrative borders was a violation of the fundamental entitlement to equal rights and self-determination of peoples.

On the assumption that other relevant processes and material requirements were in place (paras. 59-63 above), the merit of the proclamation of Bosnia and Herzegovina as a "sovereign and independent" State, could only relate to the converging will of the three peoples in Bosnia and Herzegovina. However, there was an evident divergence in the basic political stances of the representatives of these three peoples. While the will of the Muslim political leadership was expressed in the Draft Declaration on the Sovereign Bosnia and Herzegovina since February 1991, which has been, at least temporarily, accepted by Croat political leaders, [p 738] the political leadership of Bosnian Serbs insisted on the preservation of Bosnia and Hezegovina as a federal unit within the Yugoslav federation.
The referendum of 29 February and 1 March 1992 was not an expression of equal rights and self-determination of the three peoples of Bosnia and Herzegovina, whether in terms of its form (see para. 64 above) or its substance. Although absolutely inappropriate in form, its substance could, however, be qualified at best as the de facto self-determination of the Muslim and Croat peoples in Bosnia and Herzegovina. A national plebiscite of the Serbian people in Bosnia and Herzegovina was organized in the form of referendum on 9 and 10 November 1991, "in the areas of the Serbian autonomous regions and other Serbian ethnic enclaves in Bosnia and Herzegovina", where 96.4 per cent of citizens voted for an independent State within the Yugoslav federation (Politika, 11 and 13 November 1991).

Relevant circumstances concerning the referendum of 29 February and 1 March 1992 reveal the intention to have the decision on the legal status of Bosnia and Herzegovina taken independently of the norm on equal rights and self-determination of peoples.

In the first place, Mr. Alija Izetbegovic stated the following at a press conference in Sarajevo on 30 January 1991:

"If Slovenia and Croatia secede from the present Federation, I will consider that I no longer have any authority to conduct further talks on a new Yugoslavia. I will propose that a referendum be held of all citizens of Bosnia and Herzegovina — not of individual peoples — to decide on the independence and sovereignty of Bosnia-Herzegovina."FN112

------------------------------------------------------------------------------------------------------------
FN112 Referendum on the independence of Bosnia and Herzegovina, The Politika Daily, 31 January 1991 (emphasis added).
------------------------------------------------------------------------------------------------------------


Secondly, Bosnia and Herzegovina's submissions mentioned more than once the "People of the Republic" (exempli causa, paras. 5, 31, 114, 134, 135, 136 of the Application instituting proceedings filed in the Registry of the Court on 20 March 1993; Memorial, paras. 4.2.1.10; 4.2.2.19). Thus in paragraph 4.2.1.10 it was written that the referendum on the sovereignty of Bosnia and Herzegovina was based on the will of the "majority of people of the Republic" (emphasis added).

This proves that the merit of the relevant decision was not the will of the three peoples of Bosnia and Herzegovina to "determine their political status", but was rather the will, in the light of facts and law, of an imaginary "people of Bosnia and Herzegovina". The objective meaning of the phrase "people of Bosnia and Herzegovina" in the given context lies in a denial of the existence of the three peoples of Bosnia and Herzegovina, [p 739] thereby denying the relevance of the norm on equal rights and self-determination of peoples.

Thirdly, the reference of Bosnia and Herzegovina to the opinion of the Arbitration Commission as advisory body of the Conference on Yugoslavia is reasonably connected to the standpoint of the Commission on the issue of self-determination of Serbian people in Bosnia and Herzegovina. In reply to the question raised by Lord Carrington, Chairman of the Conference on Peace in Yugoslavia: "As a constituent people of Yugoslavia, do the Serbian Populations(s) in . . . Bosnia-Herzegovina enjoy the right to self-determination?", the Commission, inter alia, stressed:

"that the Serbian population of Bosnia-Herzegovina ... is entitled to all the minority rights accorded to minorities and ethnic groups under international law and under the provisions of the draft Convention of the Conference on Yugoslavia of 4 November 1991, to which the Republics of Bosnia-Herzegovina . . . have undertaken to give effect"FN113.

------------------------------------------------------------------------------------------------------------
FN113The Conference on Yugoslavia, Arbitration Commission, Opinion No. 2, para. 4.
------------------------------------------------------------------------------------------------------------

In other words, a construction of the Commission on independence of Bosnia and Herzegovina which served as basis for the policy of recognition of Bosnia and Herzegovina has been derived independently of a cogent norm on equal rights and self-determination of peoples, since one of the constituent peoples of Bosnia and Herzegovina has been treated as a "minority and ethnic group".

71. The right to self-determination is composed of two rights: the right to internal and the right to external self-determination. These two rights are an organic unity expressing dialectics in the development of the idea of self-determination.

The right to internal self-determination is materialized in the institutional environment of a sovereign, independent State. It is reduced to the right of each State freely, without external interference, to choose the form of its social system (political self-determination) and the right to free disposal of its natural wealth and resources. So construed, a right to internal self-determination embodies the ideas of sovereignty and democracy.

The right to external self-determination means the right to choose the institutional framework for the continuous exercise of internal self-determination. Statehood is thus not the necessary and automatic outcome of the exercise of the right to external self-determination, since that right could be expressed not only by the "establishment of a sovereign and independent State" but by "free association or integration with an independent State or the emergence into any other political status freely determined by a people". [p 740]

72. The question of fundamental importance in this context is whether the right to external self-determination is universal or limited in scope?

It seems indisputable that in abstracto the right to self-determination is a norm of universal scope. A limitation of the scope of the right to self-determination would mean tacit partial derogation from it. Universality is an inherent characteristic of both aspects of the right to self-determination — internal and external self-determination. It is clearly and undoubtedly indicated by the wording that self-determination belongs to "all peoples" (Art. 1 of both Covenants on Human Rights (1966) and Declaration on Principles of International Law regarding Friendly Relations and Co-operation among States (1970)). Were that not the case, the right to self-determination would relate not to the "equal rights" of peoples but to an "unequal right".

The fact that in the Court's practice (Advisory Opinion in the Namibia case, I.C.J. Reports 1971, p. 31; Western Sahara case, I.C.J. Reports 1975, pp. 12, 31), the right to external self-determination has been linked to non-self-governing territories cannot be interpreted as a limitation of the scope of the right to self-determination ratione personae, but as an application of universal law ad casum.

73. However, there is no automatic equation between universality and non-limitation of the right to self-determination. In the exercise of the right to self-determination there are limits determined by the very norm of self-determination of peoples and limitations deriving from other norms in the system of international law.

These limitations affect the right to self-determination in its entirety, i.e., their subject matter is both internal and external self-determination.

Exempli causa, when it comes to internal self-determination, it is evident that in the context of political self-determination, the subject right includes no option for a social system based on racial discrimination or segregation. More particularly, the right to self-determination, ex defini-tione, is a general permissive norm, a norm comprising categorical authorization. The exercise of that authorization is effected, however, within the system of international law, which is to say that it encounters limits in categorical prohibitions contained in other cogent norms (in concreto, in the norm prohibiting racial discrimination).

The basic constraint affecting the exercise of external self-determination derives from the very norm on equal rights and self-determination of peoples. The right to self-determination shall not

"be construed as authorizing or encouraging any action which could dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-[p 741] determination of peoples . . . and . . . possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour"FN114.

------------------------------------------------------------------------------------------------------------
FN114 Declaration of Principles, para. 7.
------------------------------------------------------------------------------------------------------------

The above-mentioned constraint on the exercise of external self-determination in a narrow sense, within the meaning of the norm on equal rights and self-determination of peoples, reveals the relevance of the norm on territorial integrity and political unity of a State. Being linked to the exercise of the right to self-determination to which "peoples" are entitled, this limitation protects the territorial integrity and political unity of a State from any action that might be undertaken within the State — unlike the ban on the use of force and threat of force in international relations among States which safeguard its territorial integrity and political unity against an external action.

74. As Henkin pointed out "[i]t is accepted that self-determination . . . does not include a right of secession for a people from an existing State"FN115.

---------------------------------------------------------------------------------------------------------------------
FN115 L. Henkin, "General Course of Public International Law", Recueil des cours de l'Académie de droit international de La Haye, Vol. 216, 1989, p. 243.
---------------------------------------------------------------------------------------------------------------------

The rule applies equally to federations:

"[w]hether the federation dissolves into two or more States also brings into focus the doctrine of self-determination in the form of secession. Such a dissolution may be the result of an amicable and constitutional agreement or may occur pursuant to a forceful exercise of secession. In the latter case, international legal rules may be pleaded in aid, but the position would seem to be that (apart from recognised colonial situations) there is no right of self-determination applicable to independent states that would justify the resort to secession."FN116

------------------------------------------------------------------------------------------------------------
FN116 M. N. Shaw, International Law, 1986, p. 139.
------------------------------------------------------------------------------------------------------------

In other words, that is to say that in the existing States made up of several peoples, the norm of equal rights and self-determination establishes prohibition of the exercise of external self-determination, since it naturally represents an action which "dismembers or impairs totally or in part, the territorial integrity or political unity". The addressee of that prohibition is a people equipped with the right to self-determination; in view of the fact that

"[s]ecessionist claims involve, first and foremost, disputed claims to territory . . . The two supposedly competing principles of people and territory actually work in tandem."FN117

------------------------------------------------------------------------------------------------------------
FN117L. Brilmayer, "Secession and Self-Determination", Yale Journal of International Law, Vol. 16, 1991, p. 178 (emphasis added).
------------------------------------------------------------------------------------------------------------

[p 742]
75. The basis of prohibition lies in the conflict of two norms of the same legal rank — the norm of self-determination and the norm of territorial integrity. The latter, tractu temporis, has become an integral ingredient of the sovereign equality of States (point (d) of the Principle of Sovereign Equality of States in the Declaration on Principles of International Law), a cogent norm per se, so that the aforementioned conflict is impossible to resolve on the grounds of hierarchy of norms of international law. Apart from this practical justification, such a solution has a principled one, i.e., no one is more qualified than a State, as a sovereign political unit, to decide on its fate when it finds itself caught between two substantially opposing norms and when its decision does not affect the rights of third States.

76. According to paragraph 7 of the Declaration on Principles of International Law, the prohibition of dismemberment or impairment in the territorial integrity or political unity concerns the States

"conducting themselves in compliance with principles of equal rights and self-determination of peoples . . . and possessed of government representing the whole people belonging to the territory without distinction as to race, creed or colour".

The stated provisions contain two criteria: the first is the conduct of the State in compliance with the principle of equal rights and self-determination of peoples, and the second is the criterion of representatives of a government with the view to ensuring the representation of the whole people without discrimination as to race, creed or colour. By its nature, the second criterion is general. In this concrete case, it should also be interpreted as an absence of discrimination among peoples who comprised the SFRY.

How does this relate to the application of the two legal criteria in the case of the Yugoslav federation?

77. The self-determination of peoples has been more than a statement in constitutional and legal documents of the federal Yugoslavia. It was a constitutive principle of the Yugoslav State. Equally, in the Yugoslav constitutional law, "national equality" or "equality of peoples" went hand in hand with the right to self-determination.

The 1974 Constitution of the SFRY qualified equality of peoples explicitly as one of the major constitutional principles (the first section of the Basic Principles) and developed it into several provisions in the operative, normative part of the Constitution (e.g., Arts. 1, 244, 245). Article 245, devoted to the relations within the Federation, stipulated that: "In SFRY peoples . . . enjoy equality." [p 743]

The equality of peoples in the composition of the State authorities of SFRY was ensured in two ways:

(i) via constitutional provisions on the equal representation of republics and provinces, namely the joint representation of republics in the federal bodies. Both chambers of the SFRY Assembly, the general representation (Federal Chamber) and the federal house (Chamber of Republics and Provinces) were formed according to the classical principle of parity (Arts. 284 and 291 of the SFRY Constitution). The same principle applied to the collective Head of State — Presidency of the SFRY (Amendment XLI, point 1, to the SFRY Constitution). Care was taken, in appointing members of the Federal Executive Council (Government of SFRY) to ensure an equal repre-sentation of republics and an adequate representation of provinces (Amendment XI III to the SFRY Constitution). The principle of equal representation of republics was applied in the courts (Constitutional Court and Federal (Supreme) Court).
(ii) Social compacts on the policy of recruitment of cadres determined eligibility criteria in which national origin was placed high on the list in multi-ethnic communities.

The personnel picture in the highest State bodies in SFRY in 1990, immediately prior to proclamation of declaration of independence in some federal units, was as follows:

President of the Presidency of SFRY: Croat; Vice-President: Serb; Prime Minister of the Federal Government: Croat; Vice-premiers: Serb and Slovene;

President of the Parliament: Muslim from Bosnia and Herzegovina, The latest Federal cabinet comprised five Croats; three Serbs; one Muslim; one Serb from Bosnia; three Slovenes; one Montenegran; one Yugoslav; one Albanian; one Hungarian; and two Macedonians.

In the light of the aforementioned facts, one cannot but conclude that the State organs of SFRY represented all the Yugoslav peoples.

78. As to Bosnia and Herzegovina's view on the subject-matter, it never questions the representativeness of the SFRY bodies in principle, but points out that, by the proclamation of independence of some federal units, that representativeness had disappeared and, moreover, "the common federal bodies on which all the Yugoslav republics where represented no longer exist; no body of that type has functioned [p 744] since" (Memorial, para. 4.2.1.26). The claim rests on a general thesis that

"in the case of a federal-type State, which embraces communities that possess a degree of autonomy and, moreover, participate in the exercise of political power within the framework of institutions common to the Federation, the existence of the State implies that the federal organs represent the components of the Federation and wield effective power"FN118.

------------------------------------------------------------------------------------------------------------
FN118International Conference on Peace in Yugoslavia, Arbitration Commission, Opinion No. 1, para. 1 (d).
------------------------------------------------------------------------------------------------------------

In the case of Yugoslavia, "common federal bodies" ceased to exist due to referendum on independence in three republics, and in "Bosnia and Herzegovina, by a sovereignty resolution adopted by Parliament on October 14th, 1991, whose validity has been contested by the Serbian community of the Republic of Bosnia and Herzegovina"FN119,

---------------------------------------------------------------------------------------------------------------------
FN119 Ibid., para. 2 (a).
---------------------------------------------------------------------------------------------------------------------

"The composition and workings of the essential organs of the Federation, be they the Federal Presidency, the Federal Council, the Council of the Republics and the Provinces, the Federal Executive Council, the Constitutional Court or the Federal Army, no longer meet the criteria of participation and representativeness inherent in a federal state."FN120

------------------------------------------------------------------------------------------------------------
FN120 Ibid, para. 2(b).
------------------------------------------------------------------------------------------------------------

This claim could be hardly taken as legally meritorious. The lack of credibility of the above claim, both in its general and in specific meaning, is evidenced by the following.

79. The wording "the federal organs represent the components of the Federation" has two possible meanings. First, that the Federation, via its organs, represents federal units. Such a meaning of the above wording is logically implied by the fact that a federation is, by definition, a higher, superior power in relation to its constituent parts and that the organs of the whole represent the parts constituting it, and, secondly, that federal organs by their very composition represent federal units — in other words they are a sort of institutional aggregate of the representativeness of federal units.

The claim of Bosnia and Herzegovina, supported by the Opinion of the Commission, is evidently aimed in that direction. In the light of the comparative practice of the federation and constitution of the SFRY, those claims are groundless. As a rule, federal organs represent the federal State as a whole (exempli causa: United States President; United States House of Representatives; executive and judicial organs in almost all [p 745] federal States) and only the federal chamber is bicameral, representing parts of the federation (United States Senate, Canada or Brazil, German Bundesrat, National Council in Switzerland, etc.).

Also, the relevant solution in the SFRY Constitution ranged within the framework of that generally accepted practice in federal States. With the exception of the Council of Republics and Provinces, all federal organs in SFRY represented the federation as a whole. Delegates in the Federal Council represented "self-managing organizations and communities and socio-political organizations" and were elected in the republics and provinces (Art. 129 of the SFRY Constitution); members of the Federal Executive Council and officials did not, moreover, represent republics/ provinces and an explicit constitutional provision prohibited them from accepting guidelines and orders from republics and provinces (Art. 362). The President and Members of the SFRY Presidency, President and Members of the Constitutional Court and other federal officials used to take an oath to the effect that they would foster the sovereignty, inde-pendence and integrity of the SFRY, abide by the Constitution of the Federation (Art. 397), so that they were not representatives of the republics/provinces under the Constitution.

80. It follows that there is no legal connection between an actual refusal to participate in the federal organs and the existence of these organs in the eyes of law. This is evidenced by the Yugoslav case. No federal organ has been dissolved or wound up on the grounds of wilful absence and individual resignations on the part of certain federal officials.

The Constitution of the SFRY of 27 April 1992, as well as the constitutional law and its implementation, were approved by the SFRY Assembly. By virtue of that law, all the supreme federal organs continued to act pending the election of new organs (Art. 2 of the Law). The SFRY Presidency acted until the election of the President of the Republic (15 June 1992) and the Federal Executive Council acted until the formation of a new federal government (14 July 1992).

Participation in the activities of federal organs and the duties of the elected representatives were construed with the intention of endowing the resulting decisions of the federation with objective legal personalities in terms of national and international law, in the general interest. The wilful abstention of federal officials elected in Bosnia and Herzegovina was seen [p 746] as constituting an abuse of the lawFN121. The consequences of an abuse of law affect those who resort to it, in line with the general legal principle nullus commodum capere de sua injuria propria et ex delicto non oritur actio.

---------------------------------------------------------------------------------------------------------------------
FN121 The Constitutional Court of Yugoslavia stated in its Decision II U. No. 122/91 that the abstention of federal officials from work in federal organs represents "an unconstitutional change of the composition of the common federal state" (Official Gazette of SFRY, No. 89/91). That decision was approved by the Constitutional Court in its full composition and with the participation of both judges from Bosnia and Herzegovina.
---------------------------------------------------------------------------------------------------------------------

81. Bosnia and Herzegovina's reasoning has been tacitly based on an inverted liberalistic idea of consent as a fundamental of the legitimacy of a State, The original idea, that a legitimate government must stem from the consent of the governed, is interpreted in Bosnia and Herzegovina's approach as implying that stepping out of the State organs entails a loss of legitimacy of trie government and constitutes the right to opt out of an existing State.
In fact,

"actual consent is not necessary to political legitimacy , . . Separatists cannot base their arguments upon a right to opt out because no such right exists in democratic theory.

Government by the consent of the governed does not necessarily encompass a right to opt out. It only requires that within the existing political unit a right to participate through electoral processes be available. Moreover, participatory rights do not entail a right to secede. On the contrary, they suggest that the appropriate solution for dissatisfied groups rests in their full inclusion in the polity, with full participation in its decision-making processes."FN122

------------------------------------------------------------------------------------------------------------
FN122 L. Brilmayer, "Secession and Self-determination: A Territorial Interpretation", Yale Journal of International Law, 1991, Vol. 16, pp. 184-185.
------------------------------------------------------------------------------------------------------------

82. Does the "Existence of the state impl[y] that the federal organs . . . yield effective power"?
The exercise of effective power is per definitionem the purpose of the existence of State organs irrespective of whether the State is unitary or federal. In concreto, the question is whether an evident crisis in the functioning of State organs of the Federation led to their ceasing to exist? To equate the constitutional crisis in SFRY and the non-existence of federal organs is legally unacceptable. The scope of the effectiveness, quantity and quality of State organs is a variable category, because it demonstrates an actual, political state of affairs. In principle, there are situa-tions in which State organs do in fact cease from exercising power (e.g., cases of military occupation, civil war and, to a certain extent, various forms of constitutional crises), but do not cease to exist. State organs as [p 747] elements of State organization cease to exist when the State on whose behalf they are acting ceases to exist.

D. The Relationship between the Legality of the Birth of a State and Succession with Respect to International Treaties

83. Bosnia and Herzegovina claims that it is a "successor State" because:

(a) "succession of States" means the "replacement of one State by another in the responsibility for the international relations of territory", according to the very widely accepted definition given in both Vienna Conventions on Succession of States of 1978 and 1983; and

(b) "it is obvious that Bosnia and Herzegovina has replaced the former SFRY for the international relations of what was the Federal Republic of Bosnia and Herzegovina before the dissolution of former Yugoslavia" (Memorial, para. 4.2.1.26).

On the contrary, the position of Yugoslavia in the subject-matter is that "the so-called Republic of Bosnia and Herzegovina has not become a State party to that 1948 Convention on the Prevention and Punishment of the Crime of Genocide in accordance with the provisions of the Convention itself (Submissions, B.l) because:

(a) "The Applicant State cannot enter into the international treaties of the predecessor State on the basis of succession because it flagrantly violated the principle of equal rights and self-determination of peoples" (Preliminary Objections, para. B.l.2.39);

(b) "As the Applicant State has violated the obligations deriving from the principle of equal rights and self-determination of peoples, the Vienna Convention on the Succession of States in Respect of Treaties could not apply to this case even if it had come into force" (ibid., para. B.l.3.5); and

(c) "Notification of succession is a manner of entry into treaties of the predecessor State in cases where the new State has based its existence upon the principle of equal rights and self-determination of peoples. In this particular case, the Applicant State has based its existence on the violation of duties deriving from the principle of equal rights and self-determination of peoples, and thus cannot make use of the notification of succession as a method of entry into the international treaties of its predecessor State." (Ibid., para. B.l.4.11.)

The essence of this objection by Yugoslavia is that because of its [p 748] "flagrant violation of the principle of equal rights and self-determination of peoples", Bosnia and Herzegovina was not a successor State and hence could not have acquired the capacity of State party to the 1948 Convention on Genocide on the grounds of succession.

To make a valid conclusion on the merits of the objection, it is necessary to answer the question of whether there is a connection between succession of States and legality of territorial changes.
84. The answer to this question implies a precise definition of the concept of succession. The term "succession" is used in a broad, imprecise meaning.

"Succession of States means both the territorial change itself — in other words, the fact that within a given territory one State replaces another — and the succession of one of those States to the rights and obligations of the other, i.e., the State whose territory has passed to the successor States."FN123

------------------------------------------------------------------------------------------------------------
FN123 H. Kelsen, Dictionnaire de la terminologie du droit international, Vol. 42, p. 314. Thus O'Connell, The Law of State Succession, 1956, pp. 3, 6; K. Zcmanek, "Die Wiener Konvention über die Staatennachfolge in Veträge", Festschrift für Alfred Verdross, 1980, p. 719; M. Jones, "State Succession in Matter of Treaties", British Year Book of Inter-national Law, 1947, Vol. 24, pp. 360-361.
------------------------------------------------------------------------------------------------------------

It can be seen that the term "succession" means two things: (a) territorial change itself; and (b) transmission of rights and obligations from predecessor State to successor State(s).

The distinction between succession taken in terms of territorial change (de facto succession) and succession as transmission of derived rights and obligations from predecessor State to successor State(s) (de jure succession) is drawn also by the Convention on Succession of States in respect of Treaties, referred to by Bosnia and Herzegovina in order to prove its status of "Successor State". This Convention in its Article 2 (b) (Use of Terms) defines "succession of States" as "the replacement of one State by another in the responsibility for the international relations of the territory". At the same time, Article 6 (Cases of Succession of States Covered by the Present Convention) specifies that the Convention "applies only to the effects of a succession of States occurring in conformity with the international law and, in particular, the principles of international law embodied in the Charter of the United Nations". Relations between Article 2 (b) and Article 6 of the Convention are precisely defined in the Comment to Article 2 of the Draft Articles on Succession of States in respect of Treaties on the basis of which Article 2 of the Convention on Succession of States in respect of Treaties was adopted. This Comment, inter alia, says:

"the term ['succession'] is used as referring exclusively to the fact of replacement of one State by another in the responsibility for inter-[p 749] national relations of territory leaving aside any connotation of inheritance of rights or obligations on the occurrence of that event"FN124.

------------------------------------------------------------------------------------------------------------
FN124 Draft Articles on Succession of States in respect of Treaties, Yearbook of the International Law Commission, 1972, Vol. II, p. 231, para. 3; identical interpretation was quoted in extenso in the comment to Article 2 of the Draft Articles on Succession of States in respect of State Property, Archives and Debts, ibid.. Vol. II, Part Two, p. 21.
-----------------------------------------------------------------------------------------------------------

Such a definition of succession corresponds to the basic concept of "succession of States" which emerged from the study of the topic by the International Law Commission. More particularly:

"The approach to succession adopted by the Commission after its study of the topic of succession in respect of treaties is based upon drawing a clear distinction between, on the one hand, the fact of replacement of one State by another in the responsibility for the international relations of a territory and, on the other, the transmission of treaty rights and obligations from the predecessor to the successor State . . .

In order to make clear the distinction between the fact of replacement of one State by another and the transmission of rights and obligations, the Commission inserted in article 2 a provision defining the meaning of the expression 'succession of States' for the purpose of the draft. Under this provision the expression 'succession of States' is used throughout the articles to denote simply a change in the responsibility for the international relations of a territory, thus leaving aside from the definition all questions of the rights and obligations as a legal incident of that change."FN125

------------------------------------------------------------------------------------------------------------
FN125Yearbook of the International Law Commission, 1972, Vol. II, p. 226, paras. 29-30.
------------------------------------------------------------------------------------------------------------

This distinction was necessary as

"the difficulty stemmed from the fact that the expression 'succession' was not qualified in the definitions of it given in art. 2 (1, b). From that paragraph it might be deduced that the convention was also intended to apply to unlawful successions"FN126.

------------------------------------------------------------------------------------------------------------
FN126 Sette-Camara, UNCSS, First Session, p. 53, para. 11.
------------------------------------------------------------------------------------------------------------

Because of that,

"art. 6 was the most important saving clause of the draft articles, since it safeguarded the legality of all provisions of the future conventions by limiting their application to the effects of lawful succession ... the provisions of the future convention would not apply to [p 750] unlawful transfers which were contrary to the will of people and to the principle of self-determination"FN127.

------------------------------------------------------------------------------------------------------------
FN127 Tabibi, UNCSS, First Session, p. 54, para. 20.
------------------------------------------------------------------------------------------------------------

Therefore, "succession of States" in terms of "replacement of one State by another in the responsibility for the international relations of territory" "does not mean ipso facto a juridical substitution of the acquiring State in the complex rights and duties possessed by the previous sovereign" FN128 or, in the present case, entry into the international treaties of SFRY as a predecessor State. The condition thereto is that the "replacement of one State by another" occurred "in conformity with international law, in particular, with the principles of international law embodied in the Charter of the United Nations".

---------------------------------------------------------------------------------------------------------------------
FN128 O'Connell, op. cit., p. 3.
---------------------------------------------------------------------------------------------------------------------

85. A provision concerning territorial changes to be effected "in conformity with international law and, in particular, with the principles of international law embodied in the Charter of the United Nations" has a declarative impact. So,

"even if the article did not appear in the convention, that instrument would apply only to lawful succession from the point of view of the principles of international law especially those embodied in the UN Charter, which was the keystone of all international conventions"FN129.

------------------------------------------------------------------------------------------------------------
FN129 Ushakov, UNCSS, First Session, pp. 54-55, para. 24.
------------------------------------------------------------------------------------------------------------

The principle underlying the provision of Article 6 of the Convention on Succession of States in respect of Treaties is a self-evident principle, axiomatic to any legal order stricto sensu. It is ratione materiae a narrowed projection of the general concept of lawfulness of acts, an application of the concept of lawfulness to the questions of succession. In view of the material significance of lawfulness for the very existence of a de jure order, the rule making provisions of any codification applicable only to the facts occurring and situations established in conformity with international law is a general presumption, a self-explanatory matterFN130. The reason for a universal provision of legality led the Commission separately to specify the rule limiting the application of the provisions of the Convention to the cases of lawful succession:

---------------------------------------------------------------------------------------------------------------------
FN130 "to admit that, apart from well-defined exceptions, an unlawful act, or its immediate consequences, may become suo vigore a source of legal right for the wrongdoer, is to introduce into a legal system a contradiction which cannot be solved except by denial of its legal character. International law does not and cannot form an exception to that imperative alternative." (H. Lauterpacht, Recognition in International Law, 1947, p. 421.)
---------------------------------------------------------------------------------------------------------------------

"Other members, however, were of the opinion that in regard, particularly, to transfers of territory it was desirable to underline [p 751] that only transfers occurring in conformity with international law should fall within the concept of 'succession of States' for the pur-pose of the present articles. Since, to specify the element of conformity with the international law with reference to one category of succession of States might give rise to misunderstandings as to the position regarding that element on other categories of succession of States, the Commission decided to include amongst the general articles a provision safeguarding the question of lawfulness of the succession of States dealt with in the present articles. Accordingly, article 6 provides that the present articles relate only to the effects of a succession of States occurring in conformity with international law."FN131

------------------------------------------------------------------------------------------------------------
FN131 UNCSS, First Session, p. 236, para. 1.
------------------------------------------------------------------------------------------------------------

86. Notification of succession is only a technical means by which the successor State expresses its consent to be considered bound by the treaty whose original party is the predecessor State. Hence, to make a notification of succession produce its intended legal effects, the actual succession must have been lawful. The criterion of lawfulness of the succession is "international law and, in particular, the principles of international law embodied in the Charter of the United Nations".

In the present case, and with regard to the position of Bosnia and Herzegovina, of special importance are the principles of territorial integrity and political unity, and of equal rights and self-determination of peoples.

The specific relevance of those principles for the matter of succession is a logical consequence of the nature of changes activating the institution of succession and the role of equal rights and self-determination of peoples in constituting new States. Hence, these principles of the United Nations Charter have been particularly accentuated. The Special Rapporteur, Mr. Mohammed Bedjaoui, stated in his proposal concerning lawfulness of succession that,

"The conditions for succession of States shall include respect for general international law and the provisions of the United Nations Charter concerning the territorial integrity of States and the right of peoples to self-determination."FN132

------------------------------------------------------------------------------------------------------------
FN132 Fifth Report on succession in respect of matters other than treaties, doc. A/CN.4/259, Yearbook of the International Law Commission, 1972, Vol. II, p. 66, para. 28.
------------------------------------------------------------------------------------------------------------

The Preamble to the Convention on Succession of States in respect of Treaties "recall[s] that respect for the territorial integrity and political independence of any State is required by the Charter of the United [p 752] Nations". That wording confirms that the existence of territorial integrity and political independence derive from the United Nations Charter and, hence, binds the States irrespective of the Convention.

87. The proclamation of Bosnia and Herzegovina as a "sovereign and independent state" constitutes, in my view, a substantial breach of the cogent norm on equal rights and self-determination of peoples in both the formal and material sense.

A substantial breach in the formal sense is reflected in the following:

(a) the procedure of proclamation of Bosnia and Herzegovina was conducted in an unconstitutional way, contrary to the relevant provisions of its own Constitution and that of the SFRY;

(b) self-determination in the subject case was de facto conceived as a right of a territory within a sovereign, independent State, rather than as a right of peoples.

The breach of the norm on equal rights and self-determination of peoples in a material sense is reflected in the following:

(a) the proclamation of independence of a federal unit of Bosnia and Herzegovina, in violation of relevant provisions of the internal law of the SFRY and of Bosnia and Herzegovina, endangered the territorial integrity and political unity of SFRY, in contravention of the provision of paragraph 7 of the Declaration on Principles;

(b) the proclamation of the independence of Bosnia and Herzegovina within its administrative borders was not based on the equal rights and self-determination of all three peoples of Bosnia and Herzegovina.

Therefore, the proclamation of the independence of Bosnia and Herzegovina was not in conformity with the relevant principles of equal rights and self-determination of peoples, and territorial integrity and political unity and, as such, has no merit for lawful succession in terms of the succession of Bosnia and Herzegovina with respect to the Convention on Prevention and Punishment of the Crime of Genocide.

88. By its nature, the proclamation of Bosnia and Herzegovina's independence was an act of secession. Bosnia and Herzegovina does not contest that assertion of Yugoslavia. It is taken from paragraph 3.22 of the Statement of Bosnia and Herzegovina which reads:

"whether or not Bosnia, at the time of its secession, had a right to self-determination is irrelevant because: (1) it is now a recognized, sovereign State, and (2) even if, arguendo, it were supposed that it had no right to self-determination in international law, international law certainly did not prohibit its achieving the status of an independent State at the occasion of the disintegration of the Former [p 753] Socialist Federal Republic of Yugoslavia." (Statement of the Government of the Republic of Bosnia and Herzegovina on Preliminary Objections, p. 60.)

89. Secession is, per definitionem, "the creation of a State by the use or threat of force and without the consent of the former sovereign"FN133. Therefore it is understandable that the

---------------------------------------------------------------------------------------------------------------------
FN133J.Crawford, The Creation of States in International Law, 1979, p. 247.
---------------------------------------------------------------------------------------------------------------------

"United Nations Charter does not recognize the term or concept of 'secession', for this concept is profoundly at odds with the spirit and normative principles of the Charter. The Charter raises respect for territorial integrity to the rank of a constitutional norm, a norm of jus cogens. On January 1, 1970, the UN Secretary-General made the following statement:

'So, as far as the question of secession of a particular section of a Member State is concerned, the United Nations' attitude is unequivocal. As an international organization, the United Nations has never accepted and does not accept, and I do not believe it will ever accept, the principle of secession of a part of a Member State."FN134

---------------------------------------------------------------------------------------------------
FN134United Nations, Monthly Chronicle, Vol. 7, p. 36 (February 1970).
---------------------------------------------------------------------------------------------------

The Security Council has characterized secession as illegal. In its resolution 169 (1961) on the Congo, the Security Council, inter alia,

"strongly deprecate[d] the secessionist activities illegally carried out by the provincial administration of Katanga with the aid of external resources and manned by foreign mercenaries . . . and

Declare [d],
…………………………………………………………………………………………………………
(d) that all secessionist activities against the Republic of Congo are contrary to the Loi fondamentale".

The implicit characterization of secession as an illegal act under international law can be found in paragraph 7 of the "Declaration of Principles of International Law Concerning Friendly Relations among States" which stipulates, inter alia, that the right to self-determination shall not be construed as

"authorizing or encouraging any action which could dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States".

On the regional, European level, such a characterization of secession is contained in the Declaration on Principles Guiding Relations between [p 754] Participating States contained in the Conference on Security and Cooperation in Europe (CSCE) Final Act adopted on 1 August 1975 at Helsinki:

"[t]he participating States regard as inviolable all one another's frontiers as well as the frontiers of all States in Europe and therefore they will refrain now and in future from assaulting these frontiers".

On the other hand, an explicit condemnation of secession can be found in the general principles of law recognized by civilized nations as a formal source of international law pursuant to Article 38 (c) of the Statute of the International Court of Justice. Secession is deemed to be a most serious crime by the national legislations of civilized nations. More particularly, an inside assault on the territorial integrity of a country or an attempted assault, including preparatory actions, are categorized as one of the gravest of crimes in virtually all the criminal codes of civilized nations.
90. The admission of Bosnia and Herzegovina to the United Nations cannot convalidate substantial legal defects in its establishment as an independent State, especially because of the need to draw a sharp distinction between

"secession in pursuance of, and in violation of, self-determination. Where the territory in question is a self-determination unit it may be presumed that any secessionary government possesses the general support of the people: secession in such a case, where self-determination is forcibly denied, will be presumed to be in furtherance of, or at least not inconsistent with, the application of self-determination to the territory in question."FN135

------------------------------------------------------------------------------------------------------------
FN135 J. Crawford, op. cit., p. 258; see also, separate opinion of Judge Ammoun, Western Sahara, I.C.J. Reports ¡975, pp. 99-100.
------------------------------------------------------------------------------------------------------------

There is not much doubt that the admission of Bosnia and Herzegovina to the United Nations has given general, political support to Bosnia and Herzegovina. However that political support does not, and could not, be interpreted as a subsequent convalidation of illegality of Bosnia and Herzegovina's birth. Even if the General Assembly had such an intention in mind when admitting Bosnia and Herzegovina to the membership of the United Nations, such an outcome was legally impossible, since such an act implied a derogation from the self-determination of peoples which has the character of jus cogens. Norms of jus cogens do not tolerate derogation, so any concurrent regime or situation, whether it be established by way of a bilateral or unilateral act, cannot acquire legal force due to the peremptoriness of jus cogens — more specifically, this act or acts remains in the sphere of simple facts. One could say that this is a classic example of application of the general principle of law expressed in [p 755] the maxim quidquid ab initio vitiosus est, non potest tractu temporis convalescere,

In my opinion, therefore, the meaning of the admission of Bosnia and Herzegovina to the United Nations is confined to the recognition of Bosnia and Herzegovina as a fact, and has no impact on the legality of its birth. Such a conclusion corresponds to the fact that

"[r]ecognition by the UN means that a State (or its government) will be invited to important international conferences, allowed to accede to numerous international treaties and to become a Member of several international organizations and to send observers to others"FN136.

------------------------------------------------------------------------------------------------------------
FN136 H. G. Schermers, International Constitutional Law, 1980, p. 929.
------------------------------------------------------------------------------------------------------------

91. By rejecting Yugoslavia's third preliminary objection, the Court has responded to one side of the question of its jurisdiction ratione per-sonae. The other side of the question relates to the status of Yugoslavia as a party to the Genocide Convention. I am in agreement with the Court's finding that Yugoslavia is a party to the Genocide Convention but I disagree with the Court's reasoning leading to that finding.

With regard to Yugoslavia's status as a party to the Genocide Convention, the Court states that:

"it has not been contested that Yugoslavia was party to the Genocide Convention [and] . . . was bound by the provisions of the Convention on the date of the filing of the Application in the present case . . ." (para. 17 of the Judgment).

The Court bases this conclusion on the following:

(a) "that it has not been contested that Yugoslavia was party to the Genocide Convention", and
(b) that

"[a]t the time of the proclamation of the Federal Republic of Yugoslavia, on 27 April 1992, a formal declaration was adopted on its behalf 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.'

This intention thus expressed by Yugoslavia to remain bound by the international treaties to which the former Yugoslavia was party was confirmed in an official Note of 27 April 1992 from the Permanent Mission of Yugoslavia to the United Nations, addressed to the Secretary-General." (Para. 17 of the Judgment.) [p 756]

I agree with the Court that Yugoslavia is a party to the Genocide Convention but its reasoning regarding the effect of the formal declaration issued on 27 April 1992 does not appear to be tenable.

92. A logical meaning of the pronouncement that "it has not been contested that Yugoslavia was party to the Genocide Convention" is that Yugoslavia is a party to the Genocide Convention because its status as a party has not been contested.

It is true that the proceedings on preliminary objections are substantially based on the initiative of the parties. However, that does not mean that the parties have the right to determine the jurisdiction of the Court.

By a decision on preliminary objections, the Court might be said to achieve two mutually connected and interdependent objectives:

(a) the direct objective is that the Court decides on the objection in the form of a judgment "by which it shall either uphold the objection, reject it, or declare that the objection does not possess, in the circumstances of the case, an exclusively preliminary character" (Art. 79 (7) of the Rules of Court);

(b) the indirect objective is to ascertain or confirm its jurisdiction. In the light of this objective, preliminary objections raised by a party are only a tool, a procedurally designed instrument for the establishment of the jurisdiction of the Court, sua nomine et suo vigore, for according to its Statute it is under an obligation to do so — not proprio motu but ex officio. For,

"[t]he Court is the guardian of its Statute. It is not within its power to abandon ... a function which by virtue of an express provision of the Statute is an essential safeguard of its compulsory jurisdiction. This is so in particular in view of the fact that the principle enshrined in Article 36 (6) of the Statute is declaratory of one of the most firmly established principles of international arbitral and judicial practice. That principle is that, in the matter of its jurisdiction, an international tribunal, and not the interested party, has the power of decision whether the dispute before it is covered by the instrument creating its jurisdiction." FN137

------------------------------------------------------------------------------------------------------------
FN137 Interhandel, Preliminary Objections, Judgment, I.C.J. Reports 1959, dissenting opinion of Sir Hersch Lauterpacht, p. 104 (emphasis added).
------------------------------------------------------------------------------------------------------------


93. The participants in the Joint Session of the SFRY Assembly, the National Assembly of the Republic of Serbia and the Assembly of the Republic of Montenegro have declared, inter alia, by a Declaration made on 27 April 1992:

"The Federal Republic of Yugoslavia, continuing the State, international, legal and political personality of the Socialist Federal [p 757]


Republic of Yugoslavia, shall strictly abide by all the commitments that the SFR of Yugoslavia assumed internationally in the past.

At the same time, it shall be ready to fully respect the rights and interests of the Yugoslav Republics which declared independence. The recognition of the newly-formed States will follow after all the outstanding questions negotiated within the conference on Yugoslavia have been regulated.

Remaining bound by all obligations to international organizations and institutions whose member it is, the Federal Republic of Yugoslavia shall not obstruct the newly-formed States to join these organizations and institutions, particularly the United Nations and its specialized agencies.

The Diplomatic and Consular Missions of the Federal Republic of Yugoslavia shall continue without interruption to perform their functions of representing and protecting the interests of Yugoslavia.

They shall also extend consular protection to all nationals of the SFR Yugoslavia whenever they request them to do so until a final regulation of their nationality status.

The Federal Republic of Yugoslavia recognized, at the same time, the full continuity of the representation of foreign States by their diplomatic and consular mission in its territory."FN138

------------------------------------------------------------------------------------------------------------
FN138 Constitution of the Federal Republic of Yugosavia, Belgrade, 1992, pp. 57-58.
------------------------------------------------------------------------------------------------------------

This declaration, per se, cannot be qualified as a basis for being bound by the Genocide Convention, at least on account of the two basic reasons, one being of a formal and the other of a material nature.

The formal reason resides in the nature of the declarations in the constitutional system of Yugoslavia. The declarations of the Assembly in the constitutional system of Yugoslavia have, since its foundation, represented general political acts of the representative body, which have as their subject the questions which are not subject to legal regulations or are not included within the competence of the representative bodyFN139. As political acts, they are not binding, so they do not contain legal sanctions for the case of non-observance.

---------------------------------------------------------------------------------------------------------------------
FN139 M. Snuderl, Constitutional Law, Ljubljana, 1957, Vol. II, p. 47; A. Fira, Constitutional Law, Belgrade, 1977, p. 381.
---------------------------------------------------------------------------------------------------------------------

The "Participants to the Joint Session of the SFRY Assembly, the National Assembly of the Republic of Serbia and the Assembly of the Republic of Montenegro, and the Federal Assembly itself are not organs [p 758] of foreign representation authorized to appear on behalf of the State in international relations, so that, the measures they adopt, even when legally binding, cannot be put into effect by one-sided acts of State organs which have such authority. The material reason concerns the content of the Declaration. The statement that the Federal Republic of Yugoslavia "shall strictly abide by all the commitments that the SFR Yugoslavia assumed internationally" is not given in the Declaration in abstracto, in the form of an unconditional, generalized acceptance of the commitments that the SFRY assumed internationally in the past, but as a declarative expression of the premise that the FR of Yugoslavia is "continuing the State, international, legal and political personality of the Socialist Federal Republic of Yugoslavia". This fact is not contested by Bosnia and Herzegovina, for it asserts that

"it is on the basis of this alleged 'continuity' that Yugoslavia (Serbia and Montenegro) considers itself to be bound by all international commitments undertaken by the former SFRY" (Memorial, para. 4.2.2.11).

According to the Declaration, the FR of Yugoslavia does not assume the obligations of the SFRY, but "remains bound by all obligations to international organizations and institutions of which it is a member " (emphasis added).

At the meeting of the Federal Chamber of the Assembly of the SFRY held on 27 April 1992, which proclaimed the Constitution of the Federal Republic of Yugoslavia, the President of the Assembly of Serbia emphasized, in his introductory speech, inter alia, that:

"[t]he adoption of one-sided acts by some of the republics on their secession from Yugoslavia and the international recognition of those republics in the administrative borders of the former Yugoslavia republics forced the Yugoslav peoples who want to continue to live in Yugoslavia to rearrange the relations in it"

and that "Serbia and Montenegro do not recognize that Yugoslavia is abolished and does not exist" FN140. Another opening speaker, the President of the Assembly of Montenegro emphasized that Serbia and Montenegro were "the only states which brought their statehood with them on the creation of Yugoslavia, and decided to constitutionally rearrange the former Yugoslavia"FN141.

---------------------------------------------------------------------------------------------------------------------
FN140 Politika, Belgrade, 28 April 1992, p. 6.
FN141 Ibid, (emphasis added).
---------------------------------------------------------------------------------------------------------------------
Moreover, even if the intention of the FR of Yugoslavia to assume [p 759] formally the obligations of the SFRY were built into the Declaration, the Declaration, as the external textual expression of such an intention, could hardly represent anything more than a political proclamation which should be operationalized, in the absence of rules on automatic succession, in accordance with the relevant rules of the Law of Treaties on the expression of consent to be bound by a treaty.

94. Whereas after the adoption of its Constitution on 27 April 1992, Yugoslavia did not express its consent to be bound by the Genocide Convention in the way prescribed by Article XI of the Convention and nor did it send to the Secretary-General of the United Nations the notification of succession, it is obvious that the only possible legal basis on which Yugoslavia could be considered a party to the Genocide Convention is the legal identity and continuity of the SFRY in the domain of multilateral treaties.

In the practice of the Secretary-General as depositary of multilateral treaties, Yugoslavia figures also, after the territorial changes which took place in the period 1991-1992, as a party to the multilateral treaties deposited with the Secretary-General, although the FR of Yugoslavia did not express its acceptance to be bound by concrete treaties in the ways fixed by the treaties, nor did it address to the Secretary-General as depositary the appropriate notifications of succession. The date when the FR of Yugoslavia expressed its acceptance to be bound is mentioned as the day on which it was bound by that specific instrument. Exempli causa, in the "Multilateral Treaties Deposited with the Secretary-General" for 1992, and in the list of "Participants" of the Convention on the Prevention and Punishment of the Crime of Genocide, "Yugoslavia" is included, and the 29 August 1950 is mentioned as the date of the acceptance of the obligation — the date on which the SFRY ratified that Convention. Identical dates are also found in the issues of the "Multilateral Treaties Deposited with the Secretary-General" for 1993 and 1994. Such a model is applied, mutatis mutandis, to other multilateral conventions deposited with the Secretary-General of the United Nations.

Therefore, it is indisputable that the practice of the Secretary-General as the depositary of the multilateral treaties consistently qualifies Yugoslavia as a party to these multilateral treaties on the basis of the acceptance of those treaties expressed by the SFRY.

95. On the basis of existing practice, the "Summary of Practice of the Secretary-General as depositary of Multilateral Treaties" concludes:

"The independence of a new successor State, which then exercises its sovereignty on its territory, is of course without effect as concerns the treaty rights and obligations of the predecessor State as concerns it own (remaining) territory. Thus, after the separation of parts of the territory of the Union of Soviet Socialist Republics (which [p 760] became independent States), the Union of Soviet Socialist Republics (as the Russian Federation) continued to exist as a predecessor State, and all its treaty rights and obligations continued in force in respect of its territory . . . The same applies to the Federal Republic of Yugoslavia (Serbia and Montenegro), which remains as the predecessor State upon separation of parts of the territory of the former Yugoslavia. General Assembly resolution 47/1 of 22 September 1992, to the effect that the Federal Republic of Yugoslavia could not automatically continue the membership of the former Yugoslavia in the United Nations (see para. 89 above), was adopted within the framework of the United Nations and the context of the Charter of the United Nations, and not as an indication that the Federal Republic of Yugoslavia was not to be considered a predecessor State."FN142

------------------------------------------------------------------------------------------------------------
FN142 ST/LEG.8, p. 89, para. 297 (emphasis added).
------------------------------------------------------------------------------------------------------------

On the other side, a

"different situation occurs when the predecessor State disappears. Such was the case when the Czech Republic and Slovakia were formed after the separation of their territories from Czechoslovakia, which ceased to exist. Each of the new States is then in the position of a succeeding State."FN143

------------------------------------------------------------------------------------------------------------
FN143 Ibid., para. 298.
------------------------------------------------------------------------------------------------------------

Such a practice is completely in accordance with the interpretation of the range of resolution 47/1 of the General Assembly of the United Nations which, otherwise, serves as the basis of the contentions that Yugoslavia, by the mere fact of territorial changes lost, ipso facto, the status of party to multilateral conventions.

In the letter from the United Nations Office of Legal Affairs of 16 April 1993, it is stated, inter alia, that

"the status of Yugoslavia as a party to treaties was not affected by the adoption of the General Assembly resolution 47/1 of 22 September 1992. By that resolution, the General Assembly decided that the Federal Republic of Yugoslavia (Serbia and Montenegro) shall not participate in the work of the General Assembly. It did not address Yugoslavia's status as a party to treaties."

96. Regarding the qualification mentioned in paragraph 297 of the "Summary", the Permanent Representative of the United States to the United Nations in her letter addressed to the Secretary-General dated 5 April 1996 (doc. A/51/95; S/1996/251, 8 April 1996) protested against [p 761] such a qualification. Four days later, on 9 April 1996, the Legal Counsel of the United Nations issued "Errata" (doc. LA41TR/220) which, inter alia, deleted the qualification of the FR of Yugoslavia as a predecessor State contained in paragraph 297 of the "Summary". Protests against such a qualification of Yugoslavia were also expressed in the letters addressed to the Secretary-General by the Permanent Representative of Germany to the United Nations (doc. A/50/929; S/1996/263, 11 April 1996) and by the Charge d'Affaires ad interim of the Permanent Mission of Guinea on behalf of the Organization of the Islamic Conference (OIC) and the Contact Group on Bosnia and Herzegovina (doc. A/50/930; SI 1996/260, 12 April 1996). Both of the latter letters were, however, dated 10 April 1996, i.e., after the "Errata" had been prepared and published.

The formal circumstances of this concrete question make, in my opinion, both the objections and the "Errata" of the Legal Counsel of the United Nations irrelevant. More particularly,

(a) The subject-matter of the objections submitted in the letters of the permanent representatives of three member States of the Organization are "views" and "interpretations" of the legal position of Yugoslavia as a predecessor State expressed in the "Summary of Practice of the Secretary-General as depositary of multilateral treaties", or, to put it more precisely, in paragraphs 297 and 298 of that document. In other words, the above-mentioned objections do not concern the practice of the Organization and of its organs in the concrete matter as an objective fact, but relate to the interpretation of that practice presented in the "Summary".

(b) "Errata" per definitionem represents "a mis-statement or misprint in something that is published or written"FN144.

------------------------------------------------------------------------------------------------------------
FN144 Webster's Third New International Dictionary, 1966, p. 772.
------------------------------------------------------------------------------------------------------------

Leaving aside the question of whether the "errata" are well founded in this specific case, it is obvious that the document concerns the relevant parts of the "Summary of Practice of the Secretary-General" (emphasis added). A "Summary" by itself does not have the value of an autonomous document, a document which determines or constitutes something. It is just the condensed expression, the external lapidary assertion of a fact which exists outside it and independently from it. In that sense, the Introduction to the "Summary of the Practice of the Secretary-General as depositary of multilateral treaties" says, that "the purpose of the present summary is to highlight the main features of the inter alia, practice followed by the Secretary-General in this field" (p. 1).

Therefore, the errata in this specific case do not question the relevance of the practice of the Secretary-General as the depositary of [p 762] multilateral treaties. This practice is, in relation to the status of the FR of Yugoslavia as party to the multilateral treaties, uniform and without exceptions, so that it has no pressing need of a "summary" which would "highlight [its] main features";

(c) The fact that the term "Federal Republic" is not used before or after the name "Yugoslavia" cannot, in my opinion, be taken as proof that it does not concern the FR of Yugoslavia. The name "Yugoslavia" designates the Yugoslav State, regardless of the factual and legal changes which it experienced during its existence, which were also reflected in its name. For example, at the time when Yugoslavia entered into the obligations under the Convention on the Prevention and Punishment of the Crime of Genocide — in August 1950 — the full name of the Yugoslav State was "Federal People's Republic of Yugoslavia". Yugoslavia is, on the basis of legal identity and conti-nuity, a party to the conventions which bound — in the era of the League of Nations — the Yugoslav State which was called, at that time, the "Kingdom of Serbs, Croats and Slovenes".

It follows that the terms such as the "former Yugoslavia" or the "Federal Republic of Yugoslavia (Serbia and Montenegro)" per se have no other meaning except the epistemiological one. In relation to the SFRY, the Kingdom of Serbs, Croats and Slovenes represents the "former Yugoslavia", just as the "Democratic Federal Yugo-slavia", constituted at Session II of the Anti -Fascist Assembly of the People's Liberation of Yugoslavia on 29 November 1943, represents the "former Yugoslavia" in relation to the Federal People's Republic of Yugoslavia established by the 1946 Constitution. The conventional nature of such terms is also seen in the practice of the principal organs of the United Nations with respect to the use of the name "Federal Republic of Yugoslavia (Serbia and Montenegro)". Since 22 November 1995, the Security Council uses in its resolutions 1021 and 1022 the term "Federal Republic of Yugoslavia" instead of the former "Federal Republic of Yugoslavia (Serbia and Montenegro)" without any express decision and in a legally unchanged situation in relation to the one in which it, like other organs of the United Nations, employed the term "Federal Republic of Yugoslavia (Serbia and Montenegro)". The fact that this change in the practice of the Security Council appeared on the day following the initialling of the Peace Agreement in Dayton, gives a strong basis for the conclusion that the concrete practice is not based on objective, legal criteria but rather on political criteria.

97. The practice of the Secretary-General as the depositary of multilateral treaties corresponds to the general legal principle that a diminution of territory does not of itself affect the legal personality of the State. [p 763] This principle of international law is deeply rooted in international practiceFN145. As early as 1925, the arbitrator, Professor Borel, held in the Otto-man Debt Arbitration that, notwithstanding both the territorial losses and the revolution, "in international law, the Turkish Republic was deemed to continue the international personality of the former Turkish Empire"FN146. In the practice of the United Nations, it is expressed in the opinion given by the United Nations Secretariat regarding the secession of Pakistan from India in which it was stated that "[t]he territory which breaks off, Pakistan, will be a new State;. . . the portion which separated was considered a new State; the remaining portion continued as an exist-ing State with all the rights and duties which it had before"FN147. A possible exception cited is the case in which territorial changes affect the "territorial nucleus" of a StateFN148, which did not happen in the case of Yugoslavia since the "territorial nucleus" has been preservedFN149.

---------------------------------------------------------------------------------------------------------------------
FN145 D. Anzilotti, this is one of the most certain rules in international law : "nessun principio più sicuro di questo nel diritto internazionale", "La formazione del Regno d'Italia nei guardi del diritto internazionale", Revista di diritto internazionale, 1912, p. 9.
FN146 Cited in K. Marck, Identity and Continuity of States in Public International Law, 1954, p. 40.
FN147United Nations Press Release PM/473, 12 August 1947 (Yearbook of the International Law Commission, Vol. II, p. 101).
FN148 Hall, A Treatise on International Law, 1924, p. 22; American Society of International Law, Panel on "State Succession and Relations with Federal States", Gold Room, Rayburn House Office Building, Washington, D.C., E. Williamson, United States State Department, 1 April 1992, p. 10.
FN149 M. Akehurst, A Modern Introduction to International Law, 1984, p. 147.
---------------------------------------------------------------------------------------------------------------------

98. It is noteworthy to underline that the practice of the Court is identical to the practice of the Secretary-General as depositary of multilateral treaties. The Yearbook 1993-1994 of the International Court of Justice says that:

"On 31 July 1994, the following 184 States were Members of the United Nations:
State Date of Admission
………………………………………………………………………………………………….
Yugoslavia...............Original Member."FN150

------------------------------------------------------------------------------------------------------------
FN150 I.C.J. Yearbook 1993-1994, No. 48, p. 67.
------------------------------------------------------------------------------------------------------------

An identical formulation is also found in the previous issueFN151. On the basis of Article 93 (1) of the Charter of the United Nations, all Members of the United Nations are ipso facto parties to the Statute.

---------------------------------------------------------------------------------------------------------------------
FN151 I.C.J. Yearbook 1992-1993, No. 47, p. 59.
---------------------------------------------------------------------------------------------------------------------

Such a practice of the Court is in full agreement with the interpretation of the scope of resolution 47/1 of the General Assembly given in a letter which the Under-Secretary-General and the Legal Counsel of the United Nations addressed on 29 September 1992 to the permanent representa-[p 764]tives of Bosnia and Herzegovina and Croatia to the United Nations and which asserts, inter alia, that "the resolution does not terminate nor suspend Yugoslavia's membership in the Organization"FN152.

---------------------------------------------------------------------------------------------------------------------
FN152 United Nations, General Assembly, A/47/485, 30 September 1992, Annex.---------------------------------------------------------------------------------------------------------------------

Fifth Preliminary Objection

99. Three principal legal questions are raised by Yugoslavia's fifth preliminary objection, and relate to:

(a) the qualification of the conflict in Bosnia and Herzegovina;

(b) the territorial or non-territorial nature of the obligations of States under the Genocide Convention; and
(c) the type of the State responsibility referred to in Article IX of the Convention.

100. Having in mind the territorial nature of the obligations of States under the Genocide Convention, the qualification of the conflict in Bosnia and Herzegovina is of considerable importance. Even if this question is closely linked to the merits, this does not prevent the Court from

"mak[ing] a summary survey of the merits to the extent necessary to satisfy itself that the case discloses claims that are reasonably arguable or issues that are reasonably contestable; in other words, that these claims or issues are rationally grounded on one or more prin-ciples of law, the application of which may resolve the dispute. The essence of this preliminary survey of the merits is that the question of jurisdiction or admissibility under consideration is to be determined not on the basis of whether the applicant's claim is right but exclusively on the basis whether it discloses a right to have the claim adjudicated."FN153

------------------------------------------------------------------------------------------------------------
FN153 Nuclear Tests, I.C.J. Reports 1974, joint dissenting opinion of Judges Onyeama, Dillard, Jimenez de Arechaga and Sir Humphrey Waldock, p. 364.
------------------------------------------------------------------------------------------------------------

In my opinion, the conflict in Bosnia and Herzegovina cannot be qualified as "civil war" or "internal conflict" exclusively as Yugoslavia asserts. That assertion is only partly correct.

The armed conflict in Bosnia and Herzegovina was a special, sui generis conflict, in which elements of civil war and international armed conflict were intermingled.

Elements of civil war were obviously present in the armed conflict in Bosnia and Herzegovina; however, according to my opinion, they could in no way be seen as its dominant characteristic. They were especially [p 765] expressed in the period of constitutional crisis before the proclamation of the independence of Bosnia and Herzegovina by the incomplete parliament of Bosnia and Herzegovina. The passive, preparatory stage of that war consisted especially of the acts of creation of national militias as early as in 1991, while the active phase of the war started with attacks against the organs of the central federal authorities, especially against the units of the Yugoslav People's Army.

After the proclamation of sovereignty and independence of Bosnia and Herzegovina by the incomplete parliament of Bosnia and Herzegovina, the civil war became, in my opinion, an international armed conflict, in which one side consisted of a fictitious, de jure recognized State — the Republic of Bosnia and Herzegovina — and the other side consisted of two de facto States not recognized by the international community — Republika Srpska and Herzeg-Bosna. This was helium omnium contra omnes, which is eloquently shown by the war between the Muslim authorities in Sarajevo and Herzeg-Bosna in 1993, and by the war between the authorities in Sarajevo and the alternative Muslim Autonomous Region of Western Bosnia, proclaimed in September 1993.

101. The relevant passage of the Court's Judgment relating to the nature of the rights and obligations of States under the Convention reads as follows:

"the rights and obligations enshrined by the Convention are rights and obligations erga omnes. The Court notes that the obligation each State thus has to prevent and to punish the crime of genocide is not territorially limited by the Convention." (Para. 31 of the Judgment.)
In my opinion, it is necessary to draw a clear distinction, on the one hand, between the legal nature of the norm prohibiting genocide, and, on the other, the implementation or enforcement of that norm.

The norm prohibiting genocide, as a norm of jus cogens, establishes obligations of a State toward the international community as a whole, hence by its very nature it is the concern of all States. As a norm of jus cogens it does not have, nor could it possibly have, a limited territorial application with the effect of excluding its application in any part of the international community. In other words, the norm prohibiting genocide as a universal norm binds States in all parts of the world.

As an absolutely binding norm prohibiting genocide, it binds all subjects of international law even without any conventional obligation. To that effect, and only to that effect, the concrete norm is of universal applicability (a norm erga omnes), and hence "non-territorality" as another pole of limited territorial application may be taken as an element of the very being of a cogent norm of genocide prohibition.

The position is different, however, when it comes to the implementation or enforcement of the norm of genocide prohibition. The norm prohibiting genocide, like other international legal norms, is applicable by [p 766] States not in an imaginary space, but in an area of the territoralized international community. And, as was pointed out by the Permanent Court of International Justice in the "Lotus" case:

"Now the first and foremost restriction imposed by international law upon a State is that — failing the existence of a permissive rule to the contrary — it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.
………………………………………………………………………………………………
In these circumstances, all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty."FN154

------------------------------------------------------------------------------------------------------------
FN154 "Lotus". Judgment No. 9. P.C.I.J., Series A. No. 10, pp. 18-19.
------------------------------------------------------------------------------------------------------------

A territorial jurisdiction conceived in this way suggests, as a general rule, the territorial character of the State's obligation in terms of implementation of an international legal norm, both in prescriptive and enforcement terms. If this were not the case, norm on territorial integrity and sovereignty, also having the character of jus cogens, would be violated.

102. What is the status of the Genocide Convention? With respect to the obligation of prevention of the crime of genocide, the Convention does not contain the principle of universal repression. It has firmly opted for the territorial principle of the obligation of prevention and
"the only action relating to crimes committed outside the territory of the Contracting Party is by organs of the United Nations within the scope of the general competence"FN155.

------------------------------------------------------------------------------------------------------------
FN155 N. Robinson, The Genocide Convention, Its Origin and Interpretation, 1949, pp. 13-14.
------------------------------------------------------------------------------------------------------------

Accordingly,

"the States are . . . obliged to punish persons charged with the commission of acts coming under the Convention insofar as they were committed in their territory"FN156.

------------------------------------------------------------------------------------------------------------
FN156 Ibid, p. 31.
------------------------------------------------------------------------------------------------------------

Article VII of the draft Genocide Convention, prepared by the Secretary-General, was based on the concept of universal repressionFN157. In its draft Convention the Ad Hoc Committee on Genocide replaced the text of Article VII, hence "the principle of universal repression was rejected by the Committee by 4 votes (among which were France, the United [p 767] States of America and the Union of Soviet Socialist Republics) against 2 with 1 abstention"FN158.

---------------------------------------------------------------------------------------------------------------------
FN157 Doc. E1447, p. 8.
FN158 See Study of the Question of the Prevention and Punishment of the Crime of Genocide, prepared by N. Ruhashyankiko, Special Rapporteur, doc. E/CN.4/Sub.2/416, 4 July 1978, p. 49.
---------------------------------------------------------------------------------------------------------------------

An unfavourable position regarding the principle of universal punishment emerges also from declarations and reservations concerning the Genocide ConventionFN159, Communication of GovernmentsFN160 and by non-governmental organizations that have a consultative status with the Economic and Social CouncilFN161.

---------------------------------------------------------------------------------------------------------------------
FN159 Ibid., pp. 51-52.
FN160 Ibid., pp. 52-55.
FN161 Ibid, p. 55.
---------------------------------------------------------------------------------------------------------------------

The Special Rapporteur concluded that

"since no international criminal court has been established, the question of universal punishment should be reconsidered, if it is decided to prepare new international instruments for the prevention and punishment of genocide"FN162.

------------------------------------------------------------------------------------------------------------
FN162 Ibid, p. 56.
------------------------------------------------------------------------------------------------------------

The intention of the drafters of the Convention to establish territorial obligations of States under the Convention clearly and irrefutably stems from the provisions of Article XII of the Convention which reads:

"Any Contracting Party may at any time, by notification addressed to the Secretary-General of the United Nations, extend the application of the present Convention to all or any of the territories for the conduct of whose foreign relations that Contracting Party is responsible." (Emphasis added.)

It is obvious that, if this were not the case, the said Article would be deprived of all sense and logic.

103. Could a State be responsible for genocide? The Court finds, when it refers to "the responsibility of a State for genocide or for any of the other acts enumerated in Article III", that Article IX does not exclude any form of State responsibility, nor is

"the responsibility of a State for acts of its organs excluded by Article IV of the Convention, which contemplates the commission of an act of genocide by 'rulers' or 'public officials'" (para. 32 of the Judgment).

Such a position does not appear, in my opinion, to be tenable.

Article IV of the Genocide Convention, which stipulates criminal responsibility for genocide or the other acts enumerated in Article III of the Convention, has a twofold meaning:

(a) a positive meaning, starting from the principle of individual guilt, since Article IV establishes as criminally responsible "persons . . .[p 768] whether they are constitutionally appointed rulers, public officials or private individuals". This rule represents lex lata, because:

"international practice since the Second World War has constantly applied the principle of individual criminal responsibility for crimes of international law, including those of genocide"FN163,

------------------------------------------------------------------------------------------------------------
FN163 Study of the Question of the Prevention and Punishment of the Crime of Genocide, prepared by Mr. N. Ruhashyankiko, Special Rapporteur, doc. E/CN.4/Sub.2/415, 4 July 1978, p. 36, para. 151.
------------------------------------------------------------------------------------------------------------

(b) a negative meaning — contained in the exclusion of criminal responsibility of States, governments or State authorities and the rejection of the application of the doctrine of the act of the State in this matter. Such a solution is expressed in the positive international law. The International Law Commission, when elaborating the Draft Code of Offences against the Peace and Security of Mankind, concluded, inter alia, in relation to the content ratione personae of the Draft Code that:

"With regard to the content ratione personae, the Commission took the view that its efforts at this stage should be devoted exclusively to the criminal responsibility of individuals. This approach was dictated by the uncertainty still attaching to the problem of criminal responsibility of States . . . True, the criminal responsibility of individuals does not eliminate the international responsibility of States for the acts committed by persons acting as organs or agents of the State. But, such responsibility is of a different nature and falls within the traditional concept of State responsibility ... the question of international criminal responsibility should be limited, at least at the present stage, to that of individuals."FN164

------------------------------------------------------------------------------------------------------------
FN164 Report of the International Law Commission on the work of its thirty-sixth session (7 May to 27 July 1984 (doc. A/39/10), Yearbook of the International Law Commission, 1984, Vol. II, Part Two, p. 11, para. 32.
------------------------------------------------------------------------------------------------------------

The resolution built into Article TV of the Genocide Convention represents an expression of a broader understanding of the inability to establish the criminal responsibility of legal persons (societas delinquere non potest).

The understanding is based on the premise that a criminal offence as a phenomenon is reduced to a human action, that is to say, to a physical act or to its omission. Since States are legal entities of an abstract character, persons without a physical body and incapable of criminal liability, they thus cannot be guilty as perpetrators of criminal acts.

It is hardly necessary to state that the interest of safeguarding the essential values of the international community involves the issue of criminal responsibility of a State as illustrated, inter alia, by the Draft [p 769] Code of Offences against the Peace and Security of MankindFN165. Theoretically, the issue of criminal responsibility of a State may be situated within the framework of a pure model of a State authority or State as the offender, namely in the framework of collective, simultaneous responsibility of a State as a legal person and physical personality, as its political representative.

---------------------------------------------------------------------------------------------------------------------
FN165 Yearbook of the International Law Cornmission, 1976, Vol. II , Part Two, pp. 7-18.
---------------------------------------------------------------------------------------------------------------------

However, the above are just projects which, irrespective of their relevance, have not yet found a place within positive international law. This fact per se, irrespective of the circumstances of a concrete case, renders the Court, as an authority implementing positive law to subject cases, incapable of taking such projects into account or accepting them as relevant. If this were not the case, the Court would step away from its fundamental judicial function and penetrate into the legislative or quasi-legislative areaFN166.

---------------------------------------------------------------------------------------------------------------------
FN166 "the enormity of the crime of genocide can hardly be exaggerated, and any treaty for its repression deserves the most generous interpretation; but the Genocide Convention is an instrument which is intended to produce legal effects by creating legal obligations between the parties to it" (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, joint dissenting opinion of Judges Guerrero, Sir Arnold McNair, Read and Hsu Mo, p. 47).
---------------------------------------------------------------------------------------------------------------------

104. Even in the hypothesis that, tractu temporis, since the Genocide Convention came into force, criminal responsibility for genocide or for any of the other acts enumerated in Article III has been extended to States as well, the relevance of such a change to the subject case could be highly questionable.

The rationale of such a question is the nature of the compromissory clause contained in Article IX of the Genocide Convention. The establishment of jurisdiction of the Court for disputes concerning the interpretation, application or fulfilment of the Convention is undoubtedly precedent to the general rule of an optional character of the Court's jurisdiction in international law. This fact has a dual meaning — legal and meta-legal. In legal terms, precedent has to be strictly interpretedFN167, particularly when it comes to the restriction of the sovereign rights of States. In this case, the jurisdiction of the Court is founded in relation to disputes "relating to the interpretation, application or fulfilment of the present Convention" (emphasis added). In other words, the Court has, on the basis of Article IX of the Convention, jurisdiction to settle disputes relating to the relevant provisions of the Convention but not such disputes concerning the rules as might possibly exist outside its frame.

---------------------------------------------------------------------------------------------------------------------
FN167 P.C.I.J.. Series A, No. 7, p. 76.
---------------------------------------------------------------------------------------------------------------------

Meta-legal meaning resides in the fact that the extension of the Court's jurisdiction beyond the provisions of Article IX of the Convention would, in normal reasoning, inhibit the States in other cases. An evident readiness of States to accept the binding jurisdiction of the [p 770] Court on a broad basis would be strengthened by such a move on the part of the Court.

105. Article IX of the Convention stipulates that:

"Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute."

If one attempts to determine the genuine meaning of the wording "responsibility of a State for genocide or for any of the other acts enumerated in article III", several elements are of crucial importance.

(a) Article IX by its nature is a standard compromissory clause. As a procedural provision, it aims at determining the jurisdiction of the Court within the co-ordinates of "interpretation, application or fulfilment" of the material provisions of the Convention. Hence, interpretations of Article IX of the Convention may not in concreto go beyond the provisions on individual criminal responsibility stipulated in Article IV of the Convention (see para. 101 above). As is forcefully expressed in the joint separate opinion of Judges Sir Percy Spender and Sir Gerald Fitzmaurice in the South West Africa case:

"The principle of interpretation directed to giving provisions their maximum effect cannot legitimately be employed in order to introduce what would amount to a revision of those provisions."FN168

------------------------------------------------------------------------------------------------------------
FN168 I.C.J. Reports 1962, p. 468.
------------------------------------------------------------------------------------------------------------

(b) The wording "responsibility of a State for genocide or for any of the other acts enumerated in article III" is abstract and broad in its vagueness, particularly in terms of the convention on criminal law "in which care should be taken to avoid giving the State a fictitious legal character, a procedure which should only be used in civil or commercial matters"FN169. What is more, the wording "responsibility of a State" is incorporated into the procedural provisions of the Genocide Convention. It is not used, however, in the operative part of the Convention to denote a possible consequence of committing the crime of genocide. The reason for such a solution is obviously to be traced in the option for individual criminal responsibility for genocide or related punishable acts.

---------------------------------------------------------------------------------------------------------------------
FN169 N. Ruhashyankiko, op. cit., p. 82, para. 314.
---------------------------------------------------------------------------------------------------------------------

For, as Manley Hudson concludes:

"The article goes further, however, in 'including' among such disputes 'those relating to the responsibility of a State for genocide or any of the other acts enumerated in Article III'. As no other provision in the Convention deals expressly with State responsibility, it is [p 771] difficult to see how a dispute concerning such responsibility can be included among disputes relating to the interpretation or application or fulfilment of the Convention. In view of the undertaking of the parties in Article I to prevent genocide, it is conceivable that a dispute as to State responsibility may be a dispute as to fulfilment of the Convention. Yet read as a whole, the Convention refers to the punishment of individuals only; the punishment of a State is not adumbrated in any way, and it is excluded from Article V by which the parties undertake to enact punitive legislation. Hence the 'responsibility of a State' referred to in Article IX is not criminal liability."FN170

------------------------------------------------------------------------------------------------------------
FN170 M. M, Whiteman, Digest of International Law, 1968, p. 857.
------------------------------------------------------------------------------------------------------------

The genuine meaning of the wording "responsibility of a State" should hence be traced within the responsibility for the obligations entered into by the parties under the Convention. Primary responsibilities of the parties have been stipulated in Articles V and VI, and covering:

— an obligation to enact necessary legislation to give effect to the provisions of the Convention; and

— the obligation of instituting legal proceedings for punishable acts provided for by Article III of the Convention against persons charged in a competent tribunal of the State in the territory of which the act was committed.

Obligations of the Contracting Parties "to enact . . . the necessary legislation" and to punish persons who commit genocide and related acts constitute a form of international responsibility of the State, responsibility towards crucial interest of the international community as a whole, built into the norm prohibiting genocide.

Given the nature of these obligations, one could hardly disagree with the Special Rapporteur, Mr. N. Ruhashyankiko, that "at the present stage in the development of international criminal law, the State can bear only political responsibility for international crimes"FN171, or perhaps, in more precise terms, the State can bear primarily political responsibility for a failure to perform obligations concerning the prohibition and punishment of international crimes.

---------------------------------------------------------------------------------------------------------------------
FN171 Study of the Question of the Prevention and Punishment of the Crime of Genocide, prepared by Mr. N. Ruhashyankiko, Special Rapporteur, doc. E/CN.4/Sub.2/416, 4 July 1978, p. 38, para. 159.
---------------------------------------------------------------------------------------------------------------------

(c) The qualification of a State as a responsible entity for the crime of genocide as a primarily political responsibility is not a priori exclusive of the civil responsibility of a State. The civil responsibility of a State in the matter of genocide may assume two forms of expression:[p 772]

(i) civil responsibility for the crime of genocide committed in its own State territory; and

(ii) civil responsibility for the crime of genocide committed in the territory of another State.

In the eventuality contemplated by (i) above, it would be civil responsibility under internal law which is to be considered and adjudicated in its entirety by the internal judicial authorities of a contracting party.

A case falling under (ii) above would be different in terms of quality. Leaving aside the conditions in which a State may be responsible for genocide perpetrated in the territory of another State, civil responsibility would be characterized by two stages. The first stage would comprise a claim for reparations to the competent authorities of the State responsible for genocide and adjudicated in the procedure established by its own internal law. The second stage would involve an international litigation for the reparation of losses incurred by genocide, the parties to it being the State responsible for genocide and the State on whose territory genocide was perpetrated. In other words, it would be a case of the typical international civil responsibility of a State. Given the fact that the national, ethnic, racial or religious group, as an object safeguarded from the crime of genocide, has no locus standi in the Court, the State on whose territory the crime has been perpetrated should espouse the cause of the "national, ethnic, racial or religious" group after having exhausted local legal remedies.

1 am convinced that the Genocide Convention provided for no international civil responsibility of States for the crime of genocide. Such a standing of the Convention on the matter of international responsibility may of course be qualified in more than one way, but it is difficult to infer any conclusion on the force of the concept of international civil responsibility within the fibre of the Convention, unless one strays into the area of legal construction. It is easy to accept the view that the international civil responsibility of States for the crime of genocide would strengthen the effectiveness of prohibition of the crime of genocide. However, in the present case, the question is reduced to the qualification of positive law concerning responsibility for genocide and not to the qualification of optimal solutions in abstracto. As suggested by Special Rapporteur Whitaker

"when the Convention is revised consideration shall be given to including provisions for a State responsibility for genocide together with reparations" FN172.

------------------------------------------------------------------------------------------------------------
FN172 Review of further development in fields which the sub-commission has been con-cerned with, revised and updated report on the question of the prevention and punish-ment of the crime of genocide, prepared by Mr. V. Whitaker (E/CN.4/Sub.2/1985/6, 2 July 1985, p. 26, para. 54.
------------------------------------------------------------------------------------------------------------

[p 773]

Sixth Preliminary Objection

106. With regard to the sixth preliminary objection raised by Yugoslavia, the Court finds that:

"Bosnia and Herzegovina could become a party to the Convention through the mechanism of State succession. Moreover, the Secretary-General of the United Nations considered that this had been the case" (para. 20 of the Judgment)
and that

"the Court does not consider it necessary, in order to decide on its jurisdiction in this case, to make a determination on the legal issues concerning State succession in respect to treaties which have been raised by the Parties. Whether Bosnia and Herzegovina automatically became party to the Genocide Convention on the date of its accession to independence on 6 March 1992, or whether it became a party as a result — retroactive or not — of its Notice of Succession of 29 December 1992, at all events it was a party to it on the date of the filing of its Application on 20 March 1993." (Para. 23 of the Judgment.)

107. I must say that, in my view, the opposite is the case. No one denies that Bosnia and Herzegovina "could become a party to the Convention through the mechanism of State succession". However, the real question is not whether Bosnia and Herzegovina "could have become a party", for every new State has in principle that possibility, but whether it became a party to the Convention through the succession mechanism. The fact that the Secretary-General "considered that this had been the case" is not of decisive importance, as the scope of depositary functions is clearly defined in positive international law. As stated in the Commentary to Article 77 (Functions of Depositaries) of the Convention on the Law of Treaties:

a depositary has a certain duty to examine whether signatures, instruments and reservations are in conformity with any applicable provisions of the treaty or of the present articles, and if necessary to bring the matter to the attention of the State in question. That is, however, the limit of the depositary's duty in this connexion. It is no part of the functions to adjudicate on the validity of an instrument or reservation"FN173

------------------------------------------------------------------------------------------------------------
FN173 UNCLT, First and Second Sessions, Vienna, 26 March-24 May 1968 and 9 April-22 May 1969, Official Records Documents of the Conference, p. 89, para. 4 (emphasis added).
------------------------------------------------------------------------------------------------------------

In other words it is firmly established that "the depositary is not invested [p 774] with any competence to adjudicate upon or to determine matters arising in connexion with the performance of its functions"FN174.

---------------------------------------------------------------------------------------------------------------------
FN174 UNCLT, First and Second Sessions, Vienna, 26 March-24 May 1968 and 9 April-22 May 1969, Official Records, Documents of the Conference, p. 89, para. 8 (emphasis added).
---------------------------------------------------------------------------------------------------------------------

In my opinion, the Court had to consider whether Bosnia and Herzegovina had become a party to the Convention on the basis of succession, at least vis-à-vis Yugoslavia, for two reasons:

— in the formal sense, there exists a dispute between Bosnia and Herzegovina and Yugoslavia in that the positions of the parties to the dispute in relation to "automatic succession" are radically opposed. While Bosnia and Herzegovina considers automatic succession to be a feature of positive international law and therefore contends that "it has automatically succeeded to the Genocide Convention"FN175, Yugoslavia denies this, claiming that "the 'clean slate' rule has been and remains in force as a rule of customary international law for new States"FN176.

---------------------------------------------------------------------------------------------------------------------
FN175 Statement of the Government of the Republic of Bosnia and Herzegovina on Preliminary Objections, 14 November 1995, para. 6.9 at p. 1ll (emphasis added).
FN176 Preliminary Objections of the Federal Republic of Yugoslavia, para. B.1.4.10.
---------------------------------------------------------------------------------------------------------------------

(It should be noted that expressions such as "automatic succession to the Genocide Convention" or "has automatically succeeded to the Genocide Convention" are not sufficiently precise and are, consequently, incorrect. The objects of succession are not treaties as legal acts but concern the status of the parties to the concrete treaty and/or the rights and obligations stipulated by that treaty. If treaties as legal acts were the object of succession, then succession would also apply to treaties whose obligation has been performed, for they are as valid as before, albeit merely of historical interest, which is clearly not the case.)


— in the material sense, as Bosnia and Herzegovina did not express its consent to be bound by the Convention in the way prescribed by Article XI of the Convention, the rules of succession are the only possible basis on which Bosnia and Herzegovina could be considered a party to the Genocide Convention.

108. The Genocide Convention, by its nature, is a convention in the field of international criminal law. This is something which results from the very nature of the matter, and which hardly needs arguing. A convention which has, as its subject, the definition and punishment of genocide as a crime under international law, and whose provisions are implemented through national criminal legislation, could hardly be defined in a different way. Another consideration is that in a community like the international community, many conventions and other international legal acts have a direct or indirect humanitarian meaning. Such a meaning of [p 775] international legal acts results unavoidably from the fact that, in the final analysis, the international community is genus humanum, that in a system whose original and basic subjects are abstract beings, the individual represents the final addressee of the legal rules. However, it could not be concluded from that that the Genocide Convention is a humanitarian convention, a convention which belongs to humanitarian law, because that term denotes the rules contained in conventions and international customs whose subject is "to reduce or limit the suffering of individuals, and to circumscribe the area within which the savagery of armed conflicts is permissible"FN177 (in that sense it should be noted that the full name of the Geneva Conference of 1974-1977 which adopted Protocols I and II was "Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts").

---------------------------------------------------------------------------------------------------------------------
FN177J. G, Starke, Introduction to International Law, 1989, p. 553.
---------------------------------------------------------------------------------------------------------------------

The qualification of a convention or of other international legal acts as "humanitarian", on the basis of the direct or indirect significance of that convention for the legal status of individuals, would make the predominant part of international law a "humanitarian law". Exempli causa, the "humanitarian law" understood in such a way would include the instruments which regulate the position of the minorities, the right of peoples to self-determination, the conventions which punish acts of terrorism, and, in general, all conventions in the field of international criminal law.
The term "humanitarian convention" or "convention of humanitarian character" is used, so it seems, in order to stress the importance of the convention. However, terms like "humanitarian convention", "convention on human rights", etc., do not, logically speaking, denote the legal force of the convention, but rather its appurtenance to a species, in the system of international law. The importance of a convention may rather be expressed by other qualifications — in this concrete case by the qualification according to which the Genocide Convention represents a "general multilateral convention of universal interest",

109. Article 34 (Succession of States in Cases of Separation of Parts of a State) of the Convention on Succession in respect of Treaties (1978) stipulates inter alia:

" 1. When a part or parts of the territory, of a State separate to form one or more States, whether or not the predecessor State continues to exist:

(a) any treaty in force at the date of the succession of States in respect of the entire territory of the predecessor State continues in force in respect of each successor State so formed".

The relevant provision of the cited Article has been formulated in terms of automatic succession. Theoretically, it corresponds to the concept of [p 776] universal succession based on a strict analogy with the notion of inheritance in civil law and/br the concept on legal succession (substitution + continuation) according to which "the successor State under international law succeeds to its predecessor's rights and obligations, which become its own" [translation by the Registry]FN178.

---------------------------------------------------------------------------------------------------------------------
FN178 "Der Nachfolger des Völkerrechts aber tritt in Rechte und Pflichten seines Vorgängers so ein, als wären es seine eigenen" (H. M. Huber, Beiträge zu einer Lehre von der Staatensuccession, Berlin, 1897, p. 14).
---------------------------------------------------------------------------------------------------------------------

In concreto, the fundamental question is the qualification of the term "automatic succession" as stipulated by Article 34 of the Convention on Succession in respect of Treaties (1978), i.e., does it constitute lex lata, a part of positive international law — or not?

110. The answer to the fundamental question thus posed implies:

(a) a qualification of the solution established by Article 34 (1) of the Convention from the standpoint of treaty law;

(b) a qualification of that solution from the standpoint of the practice of States prior to the adoption of the Convention on Succession in respect of Treaties;

(c) a qualification of the practice of States after the Convention was adopted at the diplomatic conference in Vienna in August 1978.

Article 34 (Succession of States in Cases of Separation of Parts of a State) is an integral part of the Convention on Succession in respect of Treaties, hence the rule contained in it is a treaty rule and shares the fate of the Convention itself. Article 49 (Entry into Force) of the Convention stipulates that:

"1. The present Convention shall enter into force on the thirtieth day following the date of deposit of the fifteenth instrument of ratification or accession."

Since the condition for the coming into force of the Convention has not been fulfilled, the Convention has not become a part of the positive legal milieu. Consequently, the rule contained in Article 34 (1) is in a state of lex ferenda.

The rule contained in Article 34 (1) could, naturally, be lex lata outside the framework of the Convention as an expression of existing customary law. Does this rule merit the qualification of a customary rule?

The generally held view of customary law, endorsed by this CourtFN179, is that the creation of a rule of customary international law postulates: "two constitutive elements: (1) a general practice of States, and (2) the acceptance by States of the general practice as law" FN180.

---------------------------------------------------------------------------------------------------------------------
FN179 Exempli causa. North Sea Continental Shelf cases, I.C.J. Reports 1969, p. 44, para. 77.
FN180 G. Schwarzenberger, A Manual of International Law, 1967, p. 32.
---------------------------------------------------------------------------------------------------------------------
An analysis of practice in cases of separation of parts of a State when [p 777] the predecessor State continues to exist suggests two principal conclusions:

(a) In quantitative terms it is difficult, if not impossible, to speak of a generalized practice in this respect. As the ILC loyally notes in its commentary on Article 33 (Succession of States in Cases of Separation of Parts of a State) and Article 34 (Position of a State Continues after Separation of Part of Its Territory) of its Draft: "During the United Nations period cases of separation resulting in the creation of a newly independent State . . . have been comparatively few."FN181 Previous practice does not substantively affect the argument because "[b]efore the era of the United Nations, colonies were considered as being in the fullest sense territories of the colonial power", hence, "some of the earlier precedents usually cited ... in cases of secession concerned secession of colonies"FN182. One could rather, and with greater justification, speak of a certain number of precedents;

------------------------------------------------------------------------------------------------------------
FN181 Draft Articles on Succession of States in respect of Treaties with commentaries adopted by the International Law Commission at its twenty-sixth session, United Nations Conference on Succession of States in respect of Treaties, 1977 session and resumed ses-sion 1978, Official Records, Vol. III, Documents of the Conference, p. 92, para. 17.
FN182 Ibid., p. 91, para. 12.
------------------------------------------------------------------------------------------------------------

(b) These precedents in the qualitative sense have in common an identical position regarding treaties of the predecessor State — new States were neither bound nor entitled ipso jure to the continuance of pre-independence treaties. In relation to the period prior to the foundation of the United Nations,

"[t]he majority of writers take the view, supported by State practice, that a newly independent State begins its life with a clean slate, except in regard to 'local' or 'real' obligations"FN183.

------------------------------------------------------------------------------------------------------------
FN183 Ibid., p. 41, para. 3.
------------------------------------------------------------------------------------------------------------

The practice in the United Nations era is presented in the commentary on Article 33 of the Draft (Article 34 of the Convention) with the cases of Pakistan and Singapore. The case of Pakistan is qualified as the application of the principle that on separation such a State has a "clean slate" in the sense that it is not under any obligation to accept the continuance in force of its predecessor's treatiesFN184. As far as Singapore is concerned, in spite of the "devolution agreement" of 1965, it "adopted a posture similar to that of other newly independent States", that is, "[w]hile ready to continue Federation treaties in force, Singapore regarded that continuance as a matter of mutual consent"FN185.

---------------------------------------------------------------------------------------------------------------------
FN184 Ibid, p. 92, para. 17.
FN185 Ibid, pp. 93-99, para. 18.
---------------------------------------------------------------------------------------------------------------------
[p 778]

The ILC viewed the case of Pakistan as a "special one"FN186 probably because it prompted a legal opinion of the United Nations Secretariat. The relevant part of the opinion reads:

---------------------------------------------------------------------------------------------------------------------
FN186 United Nations Conference on Succession of States in respect of Treaties, 1977 session and resumed session 1978, Official Records, Vol. III, Documents of the Conference, p. 92, para. 17.
---------------------------------------------------------------------------------------------------------------------

" 1. From the viewpoint of international law, the situation is one in which part of an existing State breaks off and becomes a new State. On this analysis there is no change in the international status of India; it continues as a State with all treaty rights and obligations of membership in the United Nations. The territory which breaks off, Pakistan, will be a new State, it will not have the treaty rights and obligations of the old State . . .

In international law the situation is analogous to the separation of the Irish Free State from Britain, and of Belgium from the Netherlands. In these cases the portion which separated was considered a new State; the remaining portion continued as an existing State with all the rights and duties which it had before."FN187

------------------------------------------------------------------------------------------------------------
FN187 Legal opinion of 8 August 1947 by the Assistant Secretary-General for Legal Affairs, approved and made public by the Secretary-General in United Nations Press Release PM/473, 12 August 1947 (Yearbook of the International Law Commission. 1962, Vol. II, p. 101.
------------------------------------------------------------------------------------------------------------

This legal opinion was given in connection with the concrete issue concerning Pakistan's position in relation to the Charter of the United Nations, but its wording and argumentation clearly indicate that it was designed as an opinion of principle. In any event, there are clear indications that States interpreted it as a principled position of the United Nations with regard to the relationship of a part of a State territory which breaks off and becomes a new State, to the treaty rights and obligations of the old StateFN188.

---------------------------------------------------------------------------------------------------------------------
FN188 In the note verbale of its Permanent Mission to the United Nations received on 11 September 1963, the Government of Afghanistan bases its assertion that "Pakistan is not a successor to British treaty rights because Pakistan is a new State" precisely on the argument that the Secretary-General of the United Nations "denied the right of succession" to Pakistan — United Nations, Legislative Series, Materials on Succession of States, 1967 (ST/LEG/SER.B/14), p. 2, para. 3 (a) and footnote I.
---------------------------------------------------------------------------------------------------------------------

111. It would appear that the main methodological approach of the Commission in drafting Article 34 of the Convention was based on the drawing of a distinction between two things:

(a) the obligation of the new State to continue to apply the treaties of its predecessor to its territory after the succession of States; and, [p 779]
(b) the right of the new State to consider itself a party to those treaties in its own name after the succession of StatesFN189.

---------------------------------------------------------------------------------------------------------------------
FN189 See Commentary to Article 15, Position in respect of the Treaties of the Predecessor State of the Draft Articles, United Nations Conference on Succession of States in respect of Treaties, 1977 session and resumed session 1978, Official Records, Vol. III, Documents of the Conference, p. 40, para. 2.
---------------------------------------------------------------------------------------------------------------------

The Commission proceeded explicitly from this distinction in formulating the provisions of Article 15 of the Draft Convention which stipulates that:

"A newly independent State is not bound to maintain in force, or to become a party to, any treaty by reason only of the fact that at the date of the succession of States the treaty was in force in respect of the territory to which the succession of States relates."

If the Commission was guided by the practice of States in formulating the provisions of Articles 15 and 33 of the Draft (Articles 16 and 34 of the Convention) then a complete analogy has to be applied when one is determining the consequences of succession in the case of the creation of a newly independent State by secession from the metropolis and the creation of a State by the separation of parts of an existing State. In particular, in the period prior to the United Nations era, cases of "secession" concerned the "secession of colonies" FN190. In other words this is a virtually uniform practice, the practice in the case of Pakistan and Singapore, the only cases cited in the commentary to Article 33 of the Draft to illustrate the practice during the United Nations period, being characterized as the "clean slate" rule.

---------------------------------------------------------------------------------------------------------------------
FN190 Ibid., p. 91, para. 12.
---------------------------------------------------------------------------------------------------------------------

Making a distinction between the consequences of succession in the case of a newly independent State the territory of which immediately before the date of succession was a dependent territory, and the case of a new State formed by separation of a part of an existing State, and establishing different rules for these two cases — "clean slate" in the former and "automatic continuity" in the latter — the Convention undoubtedly went beyond the sphere of codification of existing practice and entered the sphere of progressive development.

The provision on "automatic continuity" could hardly be justified in a convention on succession even in the event that the new States, following the logic of the right to consider themselves as parties to the treaties in their own name after the succession of States, had uniformly accepted the rights and obligations stemming from the treaties of the predecessor State.
The very fact that we are dealing with the right of the new State "to consider itself a party to the treaties in its own name" (emphasis added), a right that has been operationalized in conformity with the rules of [p 780] treaty law based on the fundamental principle of consent, eliminates, within the logic of codification of existing practice, the construction on "automatic continuity" which is, by its meaning, an obligation. What could be open to debate as we are dealing with a right or authorization is whether that right or authorization, depending on the nature of the prac-tice, is an ordinary or categorical authorization (jus cogens). Even the uniform exercise of a right does not provide grounds for transforming the right into an obligation. Per analogiam, if on the basis of the authorizing norm contained in Article 33 of the Convention on the Law of the Sea (1982) a large majority of States were to proclaim a contiguous zone, that would not mean that the establishment of the zone would constitute an obligation of States. The consequences of such a practice would be the constitution of customary rules on the right of States to proclaim exclu-sive economic zones or in concreto the customary rule on the right of the successor State "to consider itself as a party to the predecessor State's treaties in its own name".

It is therefore not difficult to agree with the opinion of the Expert Consultant of the Conference, Sir Francis Vallat, that

"[t]he rule [in Article 2 — Succession of States in Case of Separation of Parts of a State] was not based either on established practice or on precedent, it was a matter of the progressive development of international law rather than of codification"FN191.

------------------------------------------------------------------------------------------------------------
FN191 Summary Records, Committee of the Whole, 48th Meeting, 8 August 1978, p. 105, para. 10.
------------------------------------------------------------------------------------------------------------
It was noted that, in the case of Article 34 of the Convention

"the International Law Commission abandoned the 'clean slate' principle and introduced, on the contrary, a rule of continuity. It was clear that in doing so it had been aware of the fact that it was not simply reflecting the present state of the law, but was proposing progressive development. For 'clean slate' was part of general international law and would continue to be so, whatever solution was adopted in the Convention."FN192

------------------------------------------------------------------------------------------------------------
FN192 Ritter, The UN Conference on Succession in Respect of Treaties. Vienna, 31 July-23 August 1978, pp. 52-55.
------------------------------------------------------------------------------------------------------------

Multilateral law-making conventions do not represent an exception since:

"Succession to multilateral law-making conventions after separation or secession is a right, not an obligation. Multilateral law-making conventions establish a body of rules of international law. They do not create subjective rights of individual states. In case of succession no acquired right of a third party need be protected, by making it the successor's responsibility to perform it. No automatic change [p 781] of attribution; in other words: no automatic succession, therefore, takes place."FN193

------------------------------------------------------------------------------------------------------------
FN193 K. Zemanek, "State Succession after Decolonization", Recueil des cours de l'Académie de droit international de La Haye, Vol. 116, 1965, p. 233.
------------------------------------------------------------------------------------------------------------

Finally, it is also worth examining the practice of States following the adoption on 22 August 1978 of the Convention on Succession in respect of Treaties, which was open for signature until 28 February 1979. Article 46 (Signature) of Chapter VII of the Convention stipulates

"The present Convention shall be open for signature by all States until 28 February 1979 at the Federal Ministry for Foreign Affairs of the Republic of Austria, and subsequently, until 31 August 1979, at the United Nations Headquarters in New York."

The position of States regarding the Convention could hardly, even given a maximum degree of benevolence, be described as satisfactory. In the almost twenty years since the Convention was opened to ratification and accession, only 13 States have deposited instruments of ratification, accession or succession, so that not even the obviously modest requirement of 15 instruments of ratification or accession for the Convention to enter into effect has been fulfilled. This fact — volens nolens — is indicative of the attitude of States towards the Convention, regardless of the fact that the number of ratifications or accessions cannot, in itself, be considered conclusive with regard to the acceptance of the rules contained in a Convention which has not come into force. The practice of new States which have emerged since 1993 clearly shows that automatic succession is not accepted as a positive rule (Multilateral Treaties Deposited with the Secretary-General, Status as at 31 December 1993).

112. It follows from the above that the rule on automatic succession of multilateral treaties — lex ferenda, as matters now stand — has not been accepted in positive international law. However, it would be wrong to conclude from this that a new State begins life in the international community as a tabula rasa, a newborn in a legal vacuum deprived of all treaty rights and obligations. Such a state of affairs would be in contradiction with the very idea of an organized, de jure international community, an idea which does not recognize or tolerate the existence of any entity which is not directly or indirectly subject to the rule of law.

Moreover, treaty rights and obligations are subject to the division of rights and obligations effected in the well-known dictum of the Court in the case concerning Barcelona Traction, Light and Power Company, Limited:

"[a]n essential distinction should be drawn between the obligations of a State toward the international community as a whole, and those [p 782] arising vis-à-vis another State ... By their very nature, the former are the concern of all States."FN194

------------------------------------------------------------------------------------------------------------
FN194 I.C.J. Reports 1970, p. 32.
------------------------------------------------------------------------------------------------------------

(Modern international law does not take the classical view according to which only custom, as a formal source, may originally constitute a norm of general international law, whereas a rule created by treaty, per definitionem, represents a particular norm which may possibly acquire the status of a norm of general international law tractu temporis by means of custom. This view played its part when the international community was primitive and undeveloped and when constructions like this were required to fill in the vast gaps in the positive law. Today such a concept is untenable both in theory and from the standpoint of positive law.

Theoretically, if it is rightly considered that the basis of the binding nature of general international law is the "will of the international community as a whole", general custom and comprehensive multilateral treaties are only the instrumentalization of that will. Their mutual relationship in value terms is determined by the inherent capacity of both sources to express that will. Any other approach implicitly introduces dualism into the foundation of the binding nature of international law for it is obvious that neither general custom nor general multilateral treaties imply unanimity, the agreement of all States. Therefore, to recognize custom as having an exclusive role in the generation of general international law is tantamount to a metaphysical joke (Lauterpacht speaks of "the mysterious phenomenon of customary international law which is deemed to be a source of law only on condition that it is in accordance with law" ("Sovereignty over Submarine Areas", 27 British Year Book of International Law 376, p. 394 (1950)); he also raises the question of "why custom is binding. The answer, beyond which it is in law not possible to go, is that it is the will of the international community that international law, in its various manifestations, shall be binding" (H. Lauterpacht, International Law, Collected Papers, 1, General Works, 1970, p. 58).

In positive legal terms, the capacity of general multilateral treaties to generate norms jus cogens superveniens has been established by the Convention on the Law of Treaties. The commentary on Article 50 of the Draft (Article 53 of the Convention) says inter alia: "a modification of a rule of jus cogens would today most probably be effected through a general multilateral treaty" — Yearbook of the International Law Commission, 1966, Vol. II, p. 248, para. 4. If a general multi-lateral treaty is capable of creating a norm of jus cogens, as the most perfect part of international law, then a fortiori it is capable of generating a norm of general international law.) [p 783]

General multilateral treaties adopted in the interest of the international community, being the instrumental form of expression of the will of the international community as a whole, operate erga omnes independently of contractual approval. The Genocide Convention is a case in point. As indicated by the International Court of Justice in its Advisory Opinion concerning Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, proceeding from the qualification of genocide as "a denial of the right of existence of entire human groups" which "is contrary to moral law and to the spirit and aims of the United Nations", "the principles underlying the Convention . . . are recognized by civilized nations as binding on States, even without any conventional obligation"FN195.

---------------------------------------------------------------------------------------------------------------------
FN195 I.C.J. Reports 1951, p. 23 (emphasis added).
---------------------------------------------------------------------------------------------------------------------

Hence, the principles underlying the Genocide Convention are part of the corpus juris cogentis. Any new State is a priori subject to these rules since they express the universal interest of the international community as a wholeFN196.

---------------------------------------------------------------------------------------------------------------------
FN196 It might be concluded that, having in mind that nature of the principles underlying the Genocide Convention, the then Secretary-General Hammarsjkôld warned the Congo authorities during United Nations operations in that country that the principles of the Convention must be held to govern even a new State like the Congo and to apply to subordinate political authorities within the Congo State (Annual Report of the Secretary-General 1960-1961, General Assembly, 16th Sess., Supp. No. 1, p. 11 ; Waldock, "General Course on Public International Law", Recueil des cours de l'Académie de droit international de La Haye, Vol. 106, 1962, p. 228).
---------------------------------------------------------------------------------------------------------------------

113. The cited opinion of the Court raises a question of fundamental importance for these concrete proceedings — the question of the relationship between the principles underlying the Genocide Convention and the provisions of the Genocide Convention. This question has two dimensions — a quantitative and a qualitative one. The quantitative dimension of the question has to do with the relationship between underlying principles and the provisions of the Convention, i.e., whether those principles apply to the Convention as a whole. The answer to this question can, in my opinion, only be negative. The fundamental principles of international law underlying the Genocide Convention are manifested only in the substantive provisions of the Convention, the provisions defining its object and purpose. The transitional and final provisions of the Convention, to which should be added the procedural provisions regarding methods of settling disputes, are not such as to warrant being described as expressing the spirit and letter of the fundamental principles of international law. This is corroborated not only by the possibility of expressing reservations regarding these provisions but also by the effect of termination carried out in accordance with Article XIV of the Convention.

In qualitative terms the relationship between the "principles underlying the Convention" and the substantive provisions of the Convention is rele-[p 784]vant from the standpoint of whether the legal effect of those principles covers the substantive provisions of the Convention. These provisions of the Convention are the normative concretization of the "principles underlying the Convention", the transformation of the general — for practical purposes inoperable — categorical imperative into a series of concrete, particular categorical imperatives in the form of specific substantive provisions of the Convention.

In other words, the substantive provisions of the Genocide Convention, as the concretization of those principles, are interpretative in nature so that they share the cogent nature of the principles underlying the Convention.

If this were not the case, these lofty principles "recognized by civilized States as binding on States" would remain in the air, as a kind of monument to good intentions which never came to fruition.
For, if the provisions of the Genocide Convention were not a concretization of the principles underlying the Convention, the international community would be faced with insurmountable legal obstacles in the pursuit of its intention to eliminate the crime of genocide. Thus, exempli causa, non-party States would not be bound by the Convention's provisions which determine the substance of the crime of genocide or by the obligation to prevent and punish the crime of genocide.

114. In other words, Bosnia and Herzegovina as a new State is a priori bound by the substantive provisions of the Genocide Convention even without any conventional obligation. By formal accession to the Genocide Convention, with respect to the substantive provisions of the Con-vention, Bosnia and Herzegovina would merely confirm in contractual form the obligations by which it was bound independently of its will, obligations which are beyond the autonomous will of States.

The legal effect of accession to the Convention lies, primarily, in a commitment to those rules of the Convention which do not have a cogent nature, i.e., rules of a procedural nature such as exempli causa, the rules contained in Articles VIII, IX, XIV, XV or XVI of the Convention.

115. "Automatic succession" and "notification of succession" are mutually exclusive. The effect of automatic succession would consist of the automatic, ipso jure transfer of treaty rights and obligations from the predecessor State to the successor State. In that case, therefore, the suc-cession does not occur as a result of the will of the successor but on the basis of the norm of international law which stipulates the transfer of treaty rights and obligations as a consequence of the replacement of one State by another in the responsibility for the international relations of territory. "Notification of succession" has a rational and legal justification only in cases in which the transfer of treaty rights and obligations or the modalities of that transfer depend on the will of the successor since, ex definitione, it represents "any notification, however phrased or named, made by a successor State expressing its consent to be considered as [p 785] bound by the treaty"FN197. In other words, it is applied in cases when the successor State is not bound, by norms of objective international law, to continue to apply the treaties of its predecessor to its territory after the succession of States but is entitled, according to the relevant norm, to consider itself as a party to the treaties in its own name.

---------------------------------------------------------------------------------------------------------------------
FN197 Article 2 (g) of the Convention on Succession of States in respect of Treaties (emphasis added).
---------------------------------------------------------------------------------------------------------------------

116. In this connection, the question is whether "notification of succession" is appropriate, per se, for expressing consent to be bound by treaty. The legitimacy of this question relies on two facts:
(i) the connection that exists between the rules on succession with respect to international treaties and the rules of treaty law, and

(ii) the meaning of the instrument of "notification of succession".

It is natural that the succession of States with respect to treaties has the closest links with the law of treaties itself and could be regarded as dealing with particular aspects of participation in treaties, the conclusion of treaties and the application of treaties.

Special Rapporteur Humphrey Waldock described these links as follows:

"the Commission could not do otherwise than examine the topic of succession with respect to treaties within the general framework of the law of treaties ... the principles and rules of the law of treaties seemed to provide a surer guide to the problems of succession with respect to treatis than any general theories of succession"FN198.

------------------------------------------------------------------------------------------------------------
FN198 Yearbook of the International Law Commission, 1968, p. 131, para. 52.
------------------------------------------------------------------------------------------------------------

Or as stated by O'Connell,

"The effect of change of sovereignty on treaties is not a manifestation of some general principle or rule of State succession, but rather a matter of treaty law and interpretation."FN199

------------------------------------------------------------------------------------------------------------
FN199 D. P. O'Connell, The Law of State Succession, 1956, p. 15.
------------------------------------------------------------------------------------------------------------

The determination of "notification of succession" given in Article 2 (g) of the Convention on Succession in respect of Treaties, as well as the practice of States in the matter, cast serious doubts as to the possibility of "notification of succession" as an instrument, per se, that acts as a means of binding by treaty.

The Convention on the Law of Treaties (1969) stipulates in Article 11 (Means of Expressing Consent To Be Bound by a Treaty ):

"The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratifica-[p 786]tion, acceptance, approval or accession, or by any other means if so agreed."

The formulation of Article 11 of the Convention on the Law of Treaties does not exclude the possibility of notification of succession being understood as a means of expressing approval to be bound by a treaty. The operationalization of this possibility implies, however, the agreement of the parties for, in the light of treaty law as expressed in Article 11 of the Convention, "notification of succession" undoubtedly comes under "any other means" of expressing consent to be bound by a treaty but is conditioned by the phrase "if so agreed". From this viewpoint, "notification of succession " as a unilateral act of the State, constitutes a basis for a collateral agreement in simplified form between the new State and the individual parties to its predecessor's treaties. Thus "notification of succession" actually represents an abstract, generalized form of the new State's consent to be bound by the treaties of the predecessor State — a form of consent which is, in each particular case, realized in conformity with the general rule of the law of treaties on expression of consent to be bound by a treaty contained in Article 11 of the Convention on the Law of Treaties and prescribed by provisions of the concrete Treaty.

An exception to the general rule according to which consent of the successor State to be bound by a treaty has to be expressed ad casum in conformity with Article 11 of the Convention on the Law of Treaties could be envisaged in the event that, outside and independently of the Conven-tion, there exists a generally accepted rule according to which "notification of succession" is considered a specific means of binding new States by treaties. Grounds for such an interpretation are also provided by Article 73 of the Convention on the Law of Treaties: "The provisions of the present Convention shall not prejudge any question that may arise in regard to a treaty from a succession of States . . ."

There is no real evidence that such a rule exists. The Convention on the Law of Treaties which is, by its nature, a combination of codification and progressive development, does not make any mention in its Article 11 (Means of Expressing Consent To Be Bound by a Treaty) of "notification of succession" as such a means. This is particularly conspicuous in view of the fact that Article 11 is built on the premise of deformalization of the means of expressing consent to be bound by a treaty. The reason for such a state of affairs lies, in my opinion, in the still outstanding basic questions regarding the succession of States with respect to treaties.

"Notification of succession" can only have two basic meanings:

(a) it can represent a confirmation that the new State is bound by treaty and, in that case, it has only a declarative effect; and
(b) it can represent an instrument, however phrased or named, expressing consent of a successor State to be bound by the treaty. [p 787]

In the case of (a) above, the basic norm on the succession of States with respect to treaties is automatic succession — the rights and obligations stemming from treaties ipsa jure, that are transferred from the predecessor State to the successor State by the very act of territorial change.

In this case, "notification of succession" is essentially unnecessary. It would merely be information that a territorial change had occurred and that, as a result, the rule on the automatic transfer of rights and obligations stipulated by treaty had been activated.
In the case under (b) above, "notification of succession" is a means of expressing consent to be bound by a treaty. Since succession per se is not and cannot be an independent method of expressing consent to be bound by a treaty, except under the hypothesis of automatic succession, it follows that "notification of succession" can only be a descriptive notion, a collective term for various forms of expression of consent of a new State to be bound by a treaty.

The practice of States in the area of succession with respect to treaties is predominantly linked to the gaining of independence of former colonies from the metropolis. It is characterized by diversity and the absence of clear and precise rules. If any tendency can be said to be prevalent, it is that "a great many new States could be classified in a variety of 'pick and choose' categories"FN200 which is by its meaning close to the "clean slate" concept. However, regardless of whether they have accepted the Nyerere formula and laid down a specified period for the review of treaties, which period would automatically lapse if not taken up by the new State before its expiry, or the Zambia formula, which assumed the continued application of many pre-independence treaties, but which laid down an unlimited period of review to determine which had lapsed or which had in practice been adopted if the new States considered them suited to their needs, Those new States adopted such treaties by sending appropriate notes to the depositary. The position on specific treaties was expressed in the form of "acceptance", "accession", and the likeFN201. There are not many examples of the acceptance of a treaty by a successor expressed in the form of an instrument that could be called a "notification of succes-sion". "Notification of succession" is rather a synthetic, collective term denoting various forms of new States being bound by the treaties of the predecessor State, and was developed primarily in the practice of the United Nations Secretary-General as the depositary of multilateral treaties. The term implies the existence of a rule of general international law on the transfer of rights and obligations stemming from multilateral treaties to which the predecessor State is a party, to the successor State which does not correspond to the actual state of affairs since:

---------------------------------------------------------------------------------------------------------------------
FN200 Kearney, Yearbook of the Internationa! Law Commission, 1968, Vol. I, p. 136.
FN201 See United Nations Legislative Series, Materials on Succession of States (ST/LEG/ SER.B/14), 1967, pp. 42 (11); 181 ; 224-229.
---------------------------------------------------------------------------------------------------------------------

[p788]

"In spite of some evidence to the contrary, emanating mainly from diplomatic rather than legal sources, it is submitted that the general principle is that newly established States which do not result from a political dismemberment and cannot fairly be said to involve political continuity with any predecessor, start with a clean slate in the matter of treaty obligation, save in so far as obligations may be accepted by them in return for the grant of recognition to them or for other reasons, and except as regards the purely local or 'real' obligations of the State formerly exercising sovereignty over the territory of the new State."FN202

------------------------------------------------------------------------------------------------------------
FN202 McNair, Law of Treaties, 1961, p. 601.
------------------------------------------------------------------------------------------------------------

The practice of new States following the adoption of the Convention on Succession in respect of Treaties is heterogeneous but is clearly not heading in the direction of establishment of "notification of succession" as a specific means of binding new States by the treaties of the predecessor State.

117. Article XI of the Genocide Convention stipulates:

"The present Convention shall be open until 31 December 1949 for signature on behalf of any Member of the United Nations and of any non-member State to which an invitation to sign has been addressed by the General Assembly.

The present Convention shall be ratified, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations.

After 1 January 1950 the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State which has received an invitation as aforesaid.

Instruments of accession shall be deposited with the Secretary-General of the United Nations."

It follows unequivocally from the cited Article that ratification and accession are the relevant means of expressing States' consent to be bound by the Genocide Convention. In its notification of succession of 29 December 199, Bosnia and Herzegovina states:

"The Government of the Republic of Bosnia and Herzegovina, having considered the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 to which the former Socialist Federal Republic of Yugoslavia was a party wishes to succeed to the same and undertakes faithfully to perform and carry out all the stipulations therein contained with effect from [p 789] 6 March 1992, the date on which the Republic of Bosnia and Herzegovina became independent." (Emphasis added.)

The Secretary-General of the United Nations, acting in his capacity as depositary, communicated the following:

"On 29 December 1992, the notification of succession by the Government of Bosnia and Herzegovina to the above-mentioned [Genocide] Convention was deposited with the Secretary-General, with effect from 6 March 1992, the date on which Bosnia and Herze-govina assumed responsibility for its international relations."FN203

------------------------------------------------------------------------------------------------------------
FN203 Communication from the Secretary-General of the United Nations dated 18 March 1993 (reference C.N.451.1992.Treaties-5 (Depositary Notification)), entitled "Succession by Bosnia and Herzegovina" (emphasis added).
------------------------------------------------------------------------------------------------------------

On 15 June 1993, the Secretary-General received from the Government of Yugoslavia the following communication:

"Considering the fact that the replacement of sovereignty on the part of the territory of the Socialist Federal Republic of Yugoslavia previously comprising the Republic of Bosnia and Herzegovina was carried out contrary to the rules of international law, the Government of the Federal Republic of Yugoslavia herewith states that it does not consider the so-called Republic of Bosnia and Herzegovina a party to the [said Convention] but does consider that the so-called Republic of Bosnia and Herzegovina is bound by the obligation to respect the norms on preventing and punishing the crime of genocide in accordance with general international law irrespective of the Convention on the Prevention and Punishment of the Crime of Genocide."

118. On the basis of the above general considerations as well as those relating directly to the "notification of succession" of Bosnia and Herzegovina, the following relevant conclusions can, in my view, be drawn:

The "notification of succession" of Bosnia and Herzegovina is not fully in harmony with the practice of States as expressed in the relevant provisions of the Convention on Succession in respect of Treaties. More particularly, the concept of "notification of succession" was developed in the practice of States specifically in connection with decolonization.

(The expression itself is rather imprecise. In United Nations practice such notifications are called — "declarations" (see Introduction to the Multilateral Treaties Deposited with the Secretary-General, Status as at 31 December 1991, and cited by the Court in paragraph 6 of the Order of 8 April 1993, note 4). "Notification" of a function is a rather loose qualification of the practice of States, in the form of a "note" without the suffix "of succession" (see United Nations, Legislative Series, Materials on Succession of States (ST/LEG/SER.B/14), 1967, pp. 225-228), to declare themselves bound uninterruptedly by multi-[p 790] lateral treaties concluded on their behalf by the parent State before the new State emerged to full sovereignty or to deposit their own instru-ments of acceptance of such treaties, effective from the date of deposit of the new instrument. It would therefore be more opportune to speak of a "declaration of entry into the treaty". Furthermore, the mentioned "notes", as a rule, represented a form of realization of conventional obligations assumed by "devolution agreements".)

The Genocide Convention does not envisage "notification of succession" as a means of expression of consent to be bound by the treaty so that in the concrete case at hand agreement would be required between Bosnia and Herzegovina and the individual parties to the Convention on acceptance of a "notification of succession" as a means of expressing consent to be bound by the ConventionFN204. Yugoslavia, as a party to the Convention, submitted its reservation stating that it "does not consider the so-called Republic of Bosnia and Herzegovina a party [to the said Convention]" because the "replacement of sovereignty on the part of the territory of SFRY previously comprising the Republic of Bosnia and Herzegovina was carried out contrary to the rules of international law", Yugoslavia, by this reservation, disputed the status of the successor State of Bosnia and Herzegovina because the "replacement of one State by another in the responsibility , . ." constitutes only one, factual aspect of succession or, more precisely, a territorial change which provokes the question of succession in a legal sense. Hence the conclusion that follows is that no appropriate collateral agreement was reached between Bosnia and Herzegovina and Yugoslavia, so that notification of succession by Bosnia and Herzegovina does not have, vis-à-vis Yugoslavia, the legal effect of consent to be bound by the Genocide Convention. This was pointed out at the 965th meeting of the International Law Commission by Tabibi; "Succession with respect to treaties did not take place without an express provision of the treaty or the express consent of the other party."FN205

---------------------------------------------------------------------------------------------------------------------
FN204In the absence of provisions which set specific conditions for succession or which otherwise restrict succession, the Secretary-General is guided by the participation clauses of the treaties as well as by the general principles governing the participation of States" ("Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties" (ST/I EG H), p. 89, para. 297).
FN205Yearbook of the International Law Commission, 1968, Vol. I, p. 132, para. 64.
---------------------------------------------------------------------------------------------------------------------

119. The Court implicitly takes the view that on the basis of the Dayton Agreement the Genocide Convention became applicable as between Bosnia and Herzegovina and Yugoslavia. Such a conclusion stems from its pronouncement that

"even if it were to be assumed that the Genocide Convention did not enter into force between the Parties until the signature of the [p 791]Dayton-Paris Agreement, all the conditions are now fulfilled to found the jurisdiction of the Court ratione personae" (para. 26 of the Judgment),

In my opinion, such an interpretation is untenable.

Yugoslavia argues that the "Genocide Convention became applicable between the Parties to this case as from the signature of the Dayton Agreement of 1995" and that "it was only under the Dayton Agreement (particularly Annex 6 . . .) that the Parties in contention accepted the applicability of the Genocide Convention"FN206. It is a fact that in the absence of recognition, the contractual nexus between Bosnia and Herzegovina and Yugoslavia could not be established in the framework of the Genocide Convention. A mutual recognition of two States is the general condition for the establishment of the bilateral contractual nexus, since a contractual relationship between States represents a relationship intuitu personae.

---------------------------------------------------------------------------------------------------------------------
FN206 CR96/6, p. 23.
---------------------------------------------------------------------------------------------------------------------

Yugoslavia and Bosnia and Herzegovina recognized each other by Article X of the General Framework Agreement for Peace in Bosnia and HerzegovinaFN207. Article X of the General Framework Agreement stipulates, inter alia, that

---------------------------------------------------------------------------------------------------------------------
FN207 Doc, A/50/790, S/1995/999, 30 November 1995, p. 4.
---------------------------------------------------------------------------------------------------------------------

"The Federal Republic of Yugoslavia and the Republic of Bosnia and Herzegovina recognize each other as sovereign independent States within their international borders."

In normal circumstances, the mutual recognition per se results in the establishment of the contractual nexus in the framework of a multilateral agreement between the countries which recognize each other, or between the State which extends recognition and the State which is being recognized. For reservations regarding the status of a party to the agreement of a State which is not recognized, are expressed, as a rule, in order not to establish a tacit collateral agreement between that State and the recognizing State, an agreement which represents per se a de facto recognition.

The circumstances in this concrete case could not be termed normal. In the notification addressed to the Secretary-General of the United Nations on 15 June 1993, Yugoslavia emphasized that "it does not consider the so-called Bosnia and Herzegovina a party to that [Genocide Convention]" since, in its opinion,

"the replacement of sovereignty on the part of the territory of the Socialist Federal Republic of Yugoslavia previously comprising the Republic of Bosnia and Herzegovina was carried out contrary to the rules of International Law".

In other words, Yugoslavia challenges, by the notification referred to, the legality of the genesis of Bosnia and Herzegovina as a State, It could, of course, be said that a recognition, as a rule, convalidates the defects in [p 792] the genesis of a State. Such a conclusion could be drawn from the very nature of the recognition of the new State, since "To recognize a political community as a state is to declare that it fulfils the conditions of statehood as required by International Law."FN208 This specific case could be qualified as an exception from the general rule, for two basic reasons:

---------------------------------------------------------------------------------------------------------------------
FN208 H. Lauterpacht, Recognition in International Law, 1947, p. 6.
---------------------------------------------------------------------------------------------------------------------

Primo, Yugoslavia insisted, even after the signature of the Dayton Agreement, that Bosnia and Herzegovina was constituted in an illegal way. A clear and unequivocal proof of that is the content of the third objection. The fact that Yugoslavia withdrew, during the procedure, its fourth preliminary objection which concerned the factual non-existence of Bosnia and Herzegovina in the administrative borders of that former federal unit, but continued to argue that Bosnia and Herzegovina was constituted contra legem, leads one to the conclusion that the recognition of Bosnia and Herzegovina by Yugoslavia in the Dayton Agreement had only the function of acknowledging

"as a fact . . . the independence of the body claiming to be a State and . . . declar[ing] the recognizing State's readiness to accept the normal consequences of that fact, namely, the usual courtesies of international intercourse"FN209

------------------------------------------------------------------------------------------------------------
FN209 L. Brierly, The Law of Nations, 1963, p. 138.
------------------------------------------------------------------------------------------------------------

while keeping its attitude towards the legality of the constitution of Bosnia and Herzegovina as an independent State.

Secundo, in its third preliminary objection Yugoslavia claims, inter alia, that the norm on the "equal rights and self-determination of peoples" is a peremptory norm of general international law (jus cogens). If that argument could be proved to be correct, then the recognition, even if conceived and designed as convalidation, would be without legal effect, since the norms of jus cogens as the absolute, unconditional imperative, cannot be derogated by inter se agreements.

Outside the context of recognition, the Dayton Agreement does not touch the relations between the Federal Republic of Yugoslavia and the Republic of Bosnia and Herzegovina as parties to the Genocide Convention. The allegation that "under the Dayton Agreement (particularly Annex 6 ...)... the Parties in contention accepted the applicability of the Genocide Convention"FN210 has no foothold in the text of the Dayton Agreement.

--------------------------------------------------------------------------------------------------------------------
FN210 CR 96/6, p.24.
---------------------------------------------------------------------------------------------------------------------

Annex 6 of the Dayton Agreement, which is invoked as the basis of the application of the Genocide Convention in this specific case, represents, in fact, the "Agreement on Human Rights", whose parties are — the [p 793] Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina, and Republika Srpska. The only connection between Yugoslavia and Annex 6 consists in the fact that Yugoslavia, together with the Republic of Croatia and the Republic of Bosnia and Herzegovina, by virtue of Article VII of the General Framework Agreement

"agree to and shall fully comply with the provisions concerning human rights set forth in Chapter One of the Agreement at Annex 6, as well as the provisions concerning refugees and displaced persons set forth in Chapter One of the Agreement at Annex 7".

Chapter One of the Agreement on Human Rights contains a list of individual, mainly classical, personal and political rights and liberties which the "Parties [the Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and Republika Srpska] shall secure to all persons within their jurisdiction" (Art. I of the Agreement). Article VII of the General Framework Agreement is the contractual confirmation, phrased in a general way, of the obligation of the respect of basic human rights and freedoms enumerated in Article I of the Agreement on Human Rights, which the parties to the General Framework Agreement are bound to respect as parties to the instruments which contain them, and in some cases as cogent rules, independently of their acceptance. Therefore, the purpose of Article VII of the General Framework Agreement is rather in the field of political reasoning, the reasoning which starts from the need to engage politically the subjects outside Bosnia and Herzegovina in the implementation of the Dayton Agreement, and less as imposing concrete obligations regarding human rights as contained in Chapter One of the Agreement on Human Rights.

In other words, in this specific case, the recognition as a general condition for the establishment of the bilateral contractual nexus is not sufficient to enable me to consider the Genocide Convention applicable in the relations between Yugoslavia and Bosnia and Herzegovina. It results from the circumstances of the case that, for that purpose, a qualifactory condition is also indispensable, and that condition would consist of the absence of the notification of Yugoslavia addressed to the Secretary-General of the United Nations on 15 June 1993, which represents, by its material meaning, a reservation made by Yugoslavia with the effect of preventing the establishment of the mentioned nexus, and in the absence of the fourth preliminary objection regarding the legality of the constitution of Bosnia and Herzegovina as a State. Therefore, the mutual recognition given in the form of Article 7 of the General Framework Agreement may be qualified as the recognition of the creation of Bosnia and Herzegovina in the factual sense of the word, but with a reservation regarding the legality of its constitution. With respect to the fulfilment of this qualificative condition in the relations between Yugoslavia and Bosnia and Herzegovina, the provision given in fine of Article X of the Agreement is relevant, and reads "[f]urther aspects of their mutual recognition will be subject to subsequent discussions". [p 794]

Seventh Preliminary Objection

120. The position of the Court regarding its jurisdiction ratione temporis can be summarized by the following part of paragraph 34 of the Judgment, in which it finds:

"that the Genocide Convention — and in particular Article IX — does not contain any clause the object or effect of which is to limit in such manner the scope of its jurisdiction ratione temporis, and nor did the Parties themselves make any reservation to that end, either to the Convention or on the occasion of the signature of the Dayton-Paris Agree-ment. The Court thus finds that it has jurisdiction in this case to give effect to the Genocide Convention with regard to the relevant facts."

Concerning the jurisdiction of the Court ratione temporis, the situation is, in my opinion, clear — according to the rule of general international law, expressed in paragraph 3 of Article 24 (Entry into Force) of the Convention on the Law of Treaties:

"When the consent of a State to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that State on that date, unless the treaty otherwise provides."

Article IX of the Genocide Convention is a procedural provision of the Convention and, being an integral part of it, shares the Convention's destiny or, to put it more precisely, the destiny of its contractual provisions. Consequently, if the Convention does not have a retroactive effect — and it obviously does not — then its Article IX likewise has no such effect. So, as the general rule of non-retroactivity stipulates, the Convention is applied to the events and situations which took place after it had come into effect in relation to Bosnia and Herzegovina or, in the circumstances of the present case, when the Convention became applicable between Bosnia and Herzegovina and Yugoslavia.
The analogy which the Court has drawn between this case and Mav-rommatis Palestine Concessions (para. 26 of the Judgment) does not seem convincing. One can rather speak of an analogy between this case and the Ambatielos case to the effect that:

"To accept this theory would mean giving retroactive effect to Article 29 of the Treaty of 1926, whereas Article 32 of this Treaty states that the Treaty, which must mean all the provisions of the Treaty, shall come into force immediately upon ratification. Such a conclusion might have been rebutted if there had been any special clause or any special object necessitating retroactive interpretation. There is no such clause or object in the present case. It is therefore impossible to hold that any of its provisions must be deemed to have been in force earlier."FN211

------------------------------------------------------------------------------------------------------------
FN211 Ambatielos. Preliminary Objections, Judgment. I.C.J. Reports 1952, p. 40 (emphasis added).
------------------------------------------------------------------------------------------------------------
[p 795]

For, as it is clearly stated in the commentary on Article 24 of the Convention on the Law of Treaties:

"when a jurisdictional clause is attached to the substantive clauses of a treaty as a means of securing their due application, the non-retro-activity principle may operate to limit ratione temporis the application of the jurisdictional clause. Thus in numerous cases under the European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Commission of Human Rights had held that it is incompetent to entertain complaints regarding alleged violations of human rights said to have occurred prior to the entry into force of the Convention with respect to the State in ques-tion."FN212

------------------------------------------------------------------------------------------------------------
FN212Draft Articles on the Law of Treaties with commentaries, adopted by the ICL at its Eighteenth Session, UNCLT, First and Second Sessions, Vienna, 26 March-24 May 1968 and 9 April-22 May 1969, Official Records, p. 32, para. 2.
------------------------------------------------------------------------------------------------------------

***

On the basis of the foregoing, I take the liberty of concluding that, in my opinion, the relevant conditions for the entertainment of the case by the Court, relating both to jurisdiction and to admissibility, have not been met.

(Signed) Milenko Kreca.

 
     

 

home | terms & conditions | copyright | about

 

Copyright © 1999-2011 WorldCourts. All rights reserved.