Max Planck Institute for Comparative Public Law and International Law Logo Max Planck Institute for Comparative Public Law and International Law

You are here: Publications Archive World Court Digest

World Court Digest

I. Substantive International Law - First Part
5.6. Relationship between Different Organs

¤ Application of the Convention
on the Prevention and Punishment
of the Crime of Genocide,
Provisional Measures,
Order of 13 September 1993,
I.C.J. Reports 1993, p. 325

[pp. 405-406 S.O. Ajibola] The fourth request in its fresh request reads thus:

"That the Government of Bosnia and Herzegovina must have the means 'to prevent' the commission of acts of genocide against its own People as required by Article I of the Genocide Convention."

If, however, the issue of "prevention" is, as I suspect, overstretched to include the question of access by the Applicant to the means (weapons) "to prevent" the commission of acts of genocide, I would point out that the request is misconceived as far as the Court is concerned. It was the Security Council acting upon its powers under the Charter - and rightly too - that on 25 September 1991 placed an embargo upon the provision of arms and military equipment to Yugoslavia (as it then was) with that State's consent. Even though the Applicant has argued, and I think there is an element of logic in its argument, that at that time (25 September 1991) the State of Bosnia and Herzegovina was not in existence and declared its independence only on 6 March 1992 and became a Member of the United Nations on 22 May 1992, and that the former State of Yugoslavia is no longer in existence, ever since its (Bosnia's) independence the same resolutions on embargo have been maintained. In this regard, the Security Council is now acting within its power under Chapter VII, and it is still seised of the matter. Had any indication been made by the Court on this particular request, and if the same were not complied with (as happened with respect to the Order of 8 April 1993), Bosnia might still have had to present its complaints to the Security Council, either under Articles 34 and 35 of the Charter, or under Article 94 upon which I have earlier expressed my opinion.

[p. 439 S.O. Lauterpacht] 99. This is not to say that the Security Council can act free of all legal controls but only that the Court's power of judicial review is limited. That the Court has some power of this kind can hardly be doubted, though there can be no less doubt that it does not embrace any right of the Court to substitute its discretion for that of the Security Council in determining the existence of a threat to the peace, a breach of the peace or an act of aggression, or the political steps to be taken following such a determination. But the Court, as the principal judicial organ of the United Nations, is entitled, indeed bound, to ensure the rule of law within the United Nations system and, in cases properly brought before it, to insist on adherence by all United Nations organs to the rules governing their operation. The Court has already, in the Lockerbie case, given an extensive interpretation of the powers of the Security Council when acting under Chapter VII, in holding that a decision of the Council is, by virtue of Articles 25 and 103 of the Charter, able to prevail over the obligations of the parties under any other international agreement (see Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992, p. 15 para. 39).

[p. 442 S.O. Lauterpacht] 106. While, of course, the principal thrust of a finding that paragraph 6 of Security Council resolution 713 (1991) may conflict with jus cogens must lie in the direction of third States which may be willing to supply arms to Bosnia-Herzegovina, that does not mean that such a conclusion could have no place in an order operative between Bosnia-Herzegovina and Yugoslavia in the present proceedings. There may well be advantage for Bosnia-Herzegovina (it is not for the Court to determine) in being able to say that the Court has identified a source of doubt regarding the validity of the embargo resolution which, though not directly operative by itself, requires that the Security Council give the matter further consideration.
107. So far, then, as this fourth request is related to the elimination of the arms embargo vis-à-vis Bosnia-Herzegovina, I would be prepared to say that the Applicant may have an indication of a provisional measure in the following terms: that as between the Applicant and the Respondent the continuing validity of the embargo in its bearing on the Applicant has become a matter of doubt requiring further consideration by the Security Council.