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| I. | Substantive International Law - First Part |
| 4. | SUBJECTS OF INTERNATIONAL LAW |
| 4.2. | States |
| 4.2.6. | Succession of States |
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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
[p. 610] 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.
[pp. 610-612] 18. For its part, on 29 December 1992, Bosnia and 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."
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 and Herzegovina had flagrantly violated the duties stemming from the "principle of equal rights and self-determination of peoples". According to Yugoslavia, Bosnia and 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 and 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 and 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 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, and the Court took note of this in its Order of 8 April 1993 (Application
of the Convention on the Prevention and Punishment of the Crime of Genocide,
Provisional Measures, 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 and 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 and 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 and
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'être 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.)
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." (I.C.J. Reports 1951, 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 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. 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 and 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 and 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 and 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 and 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.
[pp. 635-637 S.O. Shahabuddeen] 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
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 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.
[p. 649 S.O. Weeramantry] 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 the development of human rights.
[pp. 654-655 S.O. Weeramantry] 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 continually 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.
[p. 751 D.O. Kreca] 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".
[pp. 783-784 D.O. Kreca] 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
onmes 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"1.
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 whole2.
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 relevant 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 Convention, 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.
[p. 790 D.O.Kreca] 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 Convention3. 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.
| 1 | I.C.J. Reports 1951, p. 23 (emphasis added). |
| 2 | It might be concluded that, having in mind that natureof the principles underlying the Genocide Convention, the then Secretary-General Hammarsjköld 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). |
| 3 | In 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/LEG.8), p. 89, para. 297. |
