III. | The International Court of Justice |
2. | THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE |
2.4. | Jurisdiction on the Basis of a Special Agreement |
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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. 16-18] 27. Whereas on 31 March 1993 the Agent of
Bosnia-Herzegovina submitted, as constituting an additional basis of
jurisdiction of the Court in this case, a letter, dated 8 June 1992, addressed
to the President of the Arbitration Commission of the International Conference
for Peace in Yugoslavia by Mr. Momir Bulatovic, President of the Republic of
Montenegro, and Mr. Slobodan Milosevic, President of the Republic of Serbia;
whereas the Court considers that the fact that this letter was not invoked in
the Application as a basis of jurisdiction does not in itself constitute a bar
to reliance being placed upon it in the further course of the proceedings (cf.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), I.C.J. Reports 1984, pp. 426-427, para. 80);
28. Whereas the letter of 8 June 1992 referred to a letter which the
President of the Arbitration Commission had on 3 June 1992 addressed to the
Presidents of the Republics of Bosnia and Herzegovina, Croatia, Macedonia,
Montenegro, Serbia and Slovenia and to the Presidency of the Federal Republic of
Yugoslavia, requesting a statement of the position of their respective countries
on three questions raised by the Chairman of the Conference for Peace in
Yugoslavia; whereas the first question was whether the Federal Republic of
Yugoslavia was a new State calling for recognition by the Member States of the
European Community, the second question was whether the dissolution of the
former Socialist Federal Republic of Yugoslavia could be regarded as complete,
and the third was:
"If this is the case, on what basis and by what means should the
problems of the succession of States arising between the different States
emerging from the Socialist Federal Republic of Yugoslavia be settled?"
29. Whereas in the joint letter of 8 June 1992, the President of Montenegro
and the President of Serbia challenged the Commission's competence to give an
opinion on the three questions submitted to it, and went on to say, in the
English translation supplied by Bosnia-Herzegovina from the original
Serbo-Croat:
"2. It is the principled position of FR Yugoslavia that all questions
involved in the overall settlement of the Yugoslav crisis should be resolved in
an agreement between FR Yugoslavia and all the former Yugoslav republics.
3. FR Yugoslavia holds the view that all legal disputes which cannot be
settled by agreement between FR Yugoslavia and the former Yugoslav republics
should be taken to the International Court of Justice, as the principal judicial
organ of the United Nations.
Accordingly, and in view of the fact that all the issues raised in your
letter are of a legal nature, FR Yugoslavia proposes that in the event that
agreement is not reached among the participants in the Conference, these
questions should be adjudicated by the International Court of Justice, in
accordance with its Statute";
30. Whereas Bosnia-Herzegovina interprets this text as an offer by the
Federal Republic of Yugoslavia to submit all outstanding legal disputes between
itself and Bosnia-Herzegovina to the Court, and in reliance on this offer the
Agent of Bosnia-Herzegovina at the hearings stated that Bosnia-Herzegovina
"hereby submits to the Court all of the legal disputes between it and
... Yugoslavia that have been set forth in our Application [and] Request for
provisional measures",
and submitted
"that this formal expression of intention to submit to the jurisdiction
of this Court by the appropriate authorities ... provides an additional
jurisdiction for the Court to decide all the outstanding legal disputes between
us";
and requested the Court "to consider this additional jurisdictional
basis ... in support of [the] request for an indication of provisional measures";
31. Whereas however at the present stage of the proceedings, and on the
basis of the information before the Court, it is by no means clear to the Court
whether the letter of 8 June 1992 was intended as an "immediate commitment"
by the two Presidents, binding on Yugoslavia, to accept unconditionally the
unilateral submission to the Court of a wide range of legal disputes (cf.
Aegean Sea Continental Shelf, I.C.J. Reports 1978, p. 44, para. 108); or
whether it was intended as a commitment solely to submission to the Court of the
three questions raised by the Chairman of the Committee; or as no more than the
enunciation of a general policy of favouring judicial settlement, which did not
embody an offer or commitment;
32. Whereas the Court is thus unable to regard the letter of 8 June 1992 as
constituting a prima facie basis of jurisdiction in the present case and must
proceed therefore on the basis only that it has prima facie jurisdiction, both
ratione personae and ratione materiae, under Article IX of the
Genocide Convention.