III. | The International Court of Justice |
2. | THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE |
2.5. | Jurisdiction on the Basis of Treaties |
2.5.3. | Specific Treaties |
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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;