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World Court Digest



I. Substantive International Law - First Part
4. SUBJECTS OF INTERNATIONAL LAW
4.2. States
4.2.6. Succession of States

¤ Application of the Convention
on the Prevention and Punishment
of the Crime of Genocide,
Provisional Measures,
Order of 8 April 1993,
I.C.J. Reports 1993, p. 3

[pp. 14-16] 20. Whereas the Court must therefore now consider its jurisdiction ratione materiae; whereas Article IX of the Genocide Convention, upon which Bosnia-Herzegovina in its Application claims to found the jurisdiction of the Court, provides 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";

21. Whereas the former Socialist Federal Republic of Yugoslavia signed the Genocide Convention on 11 December 1948, and deposited an instrument of ratification, without reservation, on 29 August 1950; whereas both Parties to the present case correspond to parts of the territory of the former Socialist Federal Republic of Yugoslavia;

22. Whereas at the time of the proclamation of the Federal Republic of Yugoslavia (that is to say the Respondent in the present proceedings) 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";

and whereas this intention of Yugoslavia to honour the international treaties of the former Yugoslavia was confirmed in an official Note from the Permanent Mission of Yugoslavia to the United Nations, addressed to the Secretary-General, dated 27 April 1992;

23. Whereas Bosnia-Herzegovina on 29 December 1992 transmitted to the Secretary-General of the United Nations, the 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";

and whereas the Secretary-General on 18 March 1993 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";

24. Whereas Yugoslavia has disputed the validity and effect of the Notice of 29 December 1992, contending that no rule of general international law gives Bosnia-Herzegovina the right to proclaim unilaterally that it is now a party to the Genocide Convention merely because the former Socialist Federal Republic of Yugoslavia was a party to the Convention and the Convention was thus applicable to what is now the territory of Bosnia-Herzegovina, that the "declaration of succession" procedure provided for in the Vienna Convention on Succession of States in respect of Treaties (which Convention is not in force) was evolved for, and is applicable only in, cases of decolonization, and is therefore not open to Bosnia-Herzegovina; and that the Notice of 29 December 1992, if construed as an instrument of accession under Article XI of the Genocide Convention, can only "become effective on the ninetieth day following the deposit of the instrument" in accordance with Article XIII of the Convention; whereas Yugoslavia concludes that the Court has jurisdiction under the Genocide Convention, if at all, only in respect of facts subsequent to the expiration of 90 days from the Notice of 29 December 1992;

25. Whereas the Court observes that the Secretary-General has treated Bosnia-Herzegovina, not as acceding, but as succeeding to the Genocide Convention, and if this be so the question of the application of Articles XI and XIII of the Convention would not arise; whereas however the Court notes that even if Bosnia-Herzegovina were to be treated as having acceded to the Genocide Convention, with the result that the Application might be said to be premature when filed, "this circumstance would now be covered" by the fact that the 90-day period elapsed between the filing of the Application and the oral proceedings on the request (cf. Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 34); whereas the Court, in deciding whether to indicate provisional measures is concerned, not so much with the past as with the present and with the future; whereas, accordingly even if its jurisdiction suffers from the temporal limitation asserted by Yugoslavia - which it does not now have to decide - this is not necessarily a bar to the exercise of its powers under Article 41 of the Statute;

26. Whereas Article IX of the Genocide Convention, to which both Bosnia-Herzegovina and Yugoslavia are parties, thus appears to the Court to afford a basis on which the jurisdiction of the Court might be founded to the extent that the subject-matter of the dispute relates to "the interpretation, application or fulfilment" of the Convention, including disputes "relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III" of the Convention;