|II.||Substantive International Law - Second Part|
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. 711 D.O. Kreca] 45. The original international legal norm of self-determination of peoples is both incomplete and imperfect, at least when it concerns subjects entitled to self-determination in multi-ethnic States and their exercise of external self-determination infringing upon the territorial integrity of a State. Given its incompleteness, the original norm of self-determination of peoples is rendered inapplicable in its respective parts to certain practical situations and constitutes a sort of decorative, empty normative structure. Interested entities often refer to it, but it can function only outside the legal domain, as a convenient cover for an eminently political strategy, based on opportuneness and the balance of power.
This implies a need to see the norm of the right to external self-determination in the States composed of more than one people as a complex norm consisting of two parts: on the one hand, original international legal norms of the right of peoples to external self-determination, and, on the other, relevant parts of the internal law of the given State. In this context, the original international legal norm of the right of peoples has the role of a general, permissive norm, which assumes an operative character, the property of a norm which may become effective in the event that the internal law of a multi-ethnic State has stipulated the right to external self-determination if it defines the entitlement to it, as well as the procedure for its exercise. In other words, the relevant provisions of internal law are ad casum an integral part of the norm of the right of peoples to external self-determination. Only in this way does the original international legal norm of the right to external self-determination become applicable at the level of the fundamental premise of the rule of law.
[p. 752 D.O. Kreca] 87. The proclamation of Bosnia and Herzegovina
as a "sovereign and independent state" constitutes, in my view, a
substantial breach of the cogent norm on equal rights and self-determination of
peoples in both the formal and material sense.
A substantial breach in the formal sense is reflected in the following:
|(a)||the procedure of proclamation of Bosnia and Herzegovina was conducted in an unconstitutional way, contrary to the relevant provisions of its own Constitution and that of the SFRY;|
|(b)||self-determination in the subject case was de facto conceived as a right of a territory within a sovereign, independent State, rather than as a right of peoples.|
The breach of the norm on equal rights and self-determination of peoples in a material sense is reflected in the following:
|(a)||the proclamation of independence of a federal unit of Bosnia and Herzegovina, in violation of relevant provisions of the internal law of the SFRY and of Bosnia and Herzegovina, endangered the territorial integrity and political unity of SFRY, in contravention of the provision of paragraph 7 of the Declaration on Principles;|
|(b)||the proclamation of the independence of Bosnia and Herzegovina within its administrative borders was not based on the equal rights and self-determination of all three peoples of Bosnia and Herzegovina.|
Therefore, the proclamation of the independence of Bosnia and Herzegovina was not in conformity with the relevant principles of equal rights and self-determination of peoples, and territorial integrity and political unity and, as such, has no merit for lawful succession in terms of the succession of Bosnia and Herzegovina with respect to the Convention on Prevention and Punishment of the Crime of Genocide.