|I.||Substantive International Law - First Part|
|4.||SUBJECTS OF INTERNATIONAL LAW|
Application of the Convention on the Prevention
and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia),
Preliminary Objections, Judgment of 11 July 1996,
I.C.J. Reports 1996, p. 595
[pp. 621-622] 44. According to the second objection of Yugoslavia,
the Application is inadmissible because, as Mr. Alija Izetbegoviæ 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. Izetbegoviæ
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. Izetbegoviæ was recognized, in particular by the United Nations, as the Head of State of Bosnia and Herzegovina. Moreover, his status as Head of State continued subsequently to be recognized in many international bodies and several international agreement - including the Dayton-Paris Agreement - bear his signature.
[p. 704-705 D.O. Kreca] Can the fact that "[i]n the United Nations and in the International Conference on the former Yugoslavia, Mr. Izetbegoviæ 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 international 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 Izetbegoviæ 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." 87
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 treat;, 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"1.
|1||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.|