Non- Corrigé
Uncorrected
CR 96/7
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 1996
Public si t ting
held on Tuesday 30 April 1996, at 10 a.m., at the Peace Palace,
President Bedjaoui presiding
in the case concerning the Application of the conventio* on the
Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)),
VERBATIM RECORD
ANNEE 1996
Audience publique
tenue le mardi 30 avril 1996, à 10 heures, au Palais de la Paix,
sous la présidence de M. Bedjaoui, Président
en l'affaire de l'Application de la convention pour la prévention
et la répression du crime de génocide
(Bosnie-Herzégovi.ne c. Yougoslavie (Serbie et Monténégro))
COMPTE RENDUPresen t: Fresident Bedjaoui
Ve.-.esident Schwebel
-- Judges Oda
Guillaume
Shahabuddeen
Weeramantry
Ranjeva
Herczegh
Shi
Koroma
Vereshchetin
Ferrari Bravo
Parra-Aranguren
Judges ad hoc Lauterpacht
Kreea
Registrar Valencia-OspinaPrésents : M. Bedjaoui, Président
M. --~Schwebel, Vice-président
MM:-' Oda -
Gui1laume
Shahabuddeen
Weeramantry
Ranjeva
Herczegh
Shi
Koroma
Veresbchetin
Ferrari Bravo
M.Par:ra-Aranguren,juges
MM. Lauterpacht
Kreea, juges ad hoc
M. Valencia-Ospina, GreffierThe GoverPrnent of B6snia and Herzegovina is represented by:
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H.E. Mr . ~uhamed'-~acirbe~, Ambassador and Permanent Representativeof the
Republic of Bosnia and Herzegovina to the United Nations,
AS Agent;
Mr. Phon van den Biesen, Attorney in Amsterdam,
As Deputy-Agent, Counsel and Advocate;
Mr. Thomas Franck, Professor at the School of Law, New York University;
Director, Center for InternationalStudies;
Mr. Alain Pellet, Professor, Universityof Paris X-Nanterre and Institute
of Political Studies Paris,
Ms. Brigitte Stern, Professor, University of Paris 1 (Panthéon,
Sorbonne) ,
As Counsel and Advocates;
Mr. Khawar M. Qureshi, Barrister in London, Lecturer in Law, King's
College, London,
Mr. Vasvija Vidovie, Minister-Counsellorwith the Embassy of Bosnia and
Herzegovina in Brussels, Representative of the Republic of Bosniaand
Herzegovina at the International Criminal Tribunal for the former
Yugoslavia
Mr. Marc Weller, Assistant Director of Studies, Centre for International
Studies, University of Cambridge, Member of the Faculty of Law of the
University of Cambridge,
As Counsel;
Mr. Pierre Bodeau, Research Assistant/Tutor,University of
Paris X-Nanterre,
Mr. Michiel Pestman, Attorney in Amsterdam,
As Counsellors;
Mr. Hervé Ascensio, Research Assistant/Tutor,University of Paris X-
Nanterre,
Ms. Marieke Drenth,
Ms. Froana Hoff,
Mr. Michael Kellogg,
Mr. Harold Kocken,
Ms. Nathalie Lintvelt,
Mr. Sam Muller,
Mr. Joop Nijssen,
Mr. Eelco Szab6,
As Assistants.Le Gouvernement de ia Bosnie-Herzégovine est representé par :
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S. Exc. M. Muhamed Sacirbey, ambassadeur et représentant permanent de la
République de Bosnie-Herzégovineauprès de l'organisation des
Nations Unies,
comme agent;
M. Phon van den Biesen, avocat à Amsterdam,
comme agent adjoint, conseil et avocat;
M. Thomas M. Franck, professeur à la faculté de droit et directeur du
centre d'études internationales de l'université deNew York,
M. Alain Pellet, professeur à l'université de ParisX-Nanterre et à
l'Institut d'études politiques de Paris,
Mme Brigitte Stern, professeur à 1'Université de Paris 1
(Panthéon-Sorbonne) ,
comme conseils et avocats;
M. Khawar M. Qureshi, avocat à Londres, Lecturer in Law au King's College
de Londres,
Mme Vasvija VidoviE, ministre-conseiller à l'ambassade de la République
de Bosnie-Herzégovine à Bruxelles, représentantde la République de
Bosnie-Herzégovine auprès du Tribunalpénal internationalpour
l'ex-Yougoslavie,
M. Marc Weller, directeur adjoint des études au centre d'études
internationalesde l'Université de Cambridge, membre de la faculté de
droit de l'université de Cambridge,
comme conseils;
M. Pierre Bodeau, allocataire-moniteur à l'Université de
Paris X-Nanterre,
M. Michiel Pestman, avocat à Amsterdam,
comme conseillers ;
M. Hervé Ascencio, allocataire-moniteur à l'université de
Paris X-Nanterre,
Mme Marieke Drenth,
Mme Froana Hoff,
M. Michael Kellogg,
M. Harold Kocken,
Mme Nathalie Lintvelt,
M. Sam Muller,
M. Joop Nijssen,
M. Eelco Szab6,
comme assistartts.The Government of ~uioslavia (Serbia and Montenegro) is represented by:
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H.E.Mr. ~odoljublÈtinski,Chief-Legal Adviser in the Ministry of Foreign
Affairs of the Federal Republicof Yugoslavia and Professor of
International Law, Novi Sad University;
Mr. Djordje Lopicic, Chargé d'Affaires of the Embassy of the Federal
Republic of Yugoslavia, The Hague,
as Agents;
Mr. Ian Brownlie, C.B.E.,F.B.A., Queen's Counsel, Chichele Professor of
Public InternationalLaw,
Mr. Miodrag Mitic, Assistant Federal Minister for Foreign Affairs of the
Federal Republic of Yugoslavia (Ret.),
Mr.Eric Suy, Professor in the CatholicUniversity of Leuven, formerly
Under-Secretary-Generaland Legal Counsel of theUnited Nations,
as Counsel and Advocates;
Mr. Stevan Djordjevic, Professor of InternationalLaw, elg grade
University,
H.E. M. Shabtai Rosenne, Ambassador,
Mr. Gravro Perazic, Professor of InternationalLaw, ~odgorica University,
as Counsel.Le Gouvernement de Ta Yougoslavie (Serbie et Monténégro) est représentée
par : -=-Y
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M. Rodoljub Etinski, conseiller juridique principal au ministère des
affaires étrangères dela République fédérativede Yougoslavie (Serbie
et Monténégro), professeur dedroit international à l'Universitéde
Novi Sad,
M. Djordje Lopicic, chargé d'affaires à l'ambassadede la République
fédérative de Yougoslavie (Serbieet Monténégro) à La Haye,
comme agents ;
M. Ian Brownlie, C.B.E., F.B.A., Q.C., professeur de droit international
public, titulaire de la chaire Chichele à l'universitéd'Oxford,
M. Miodrag Mitic, ancien ministre adjointdes affaires étrangères dela
République fédérativede Yougoslavie (Serbieet Monténégro),
M. Eric Suy, professeur à l'universitécatholique de Louvain (K.U.L.),
ancien Secrétairegénéral adjointet conseiller juridiquede
l'Organisationdes Nations Unies,
comme conseilset avocats;
M. Stevan Djordjevic,professeur de droit international à l'Universitéde
Belgrade,
M. Shabtai Rosenne, ambassadeur,
M. Gavro Perazic, profes:seur de droit international à l'université
Podgorica,
comme consei1 S. - 8 -
The PRES1DENT:- Please be seated. This morning the Court will resume
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its public heari6gs in the case concerning theApplication of the
Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)) . 1 now
give the floor to Professor IanBrownlie.
Mr. BROWNLIE: Thank you, Mr. President.
Mr. President, distinguishedMembers of the Court, my final task in
the first round is to address the Court on the fifth preliminary
objection of Yugoslavia, namely, that there is no dispute between the
parties falling withinthe provisions of Article IX of the Genocide
Convention because at the material time Yugoslaviahad no territorial
jurisdiction in the relevant areas.
The elements of this argument can be summarized as follows:
(i) The Genocide Conventioncan only apply when the State concernedhas
territorial jurisdictionin the areas in which the breaches of the
Convention are alleged to have occurred. The key provisions of the
Convention involve the duty of States parties "to prevent and to
punish the crime of genocide" (Art. 11, the enactment of the
necessary legislationto give effect to the Convention (Art. V), and
the trial of perçons charged withgenocide "by a competent tribunal
of the State in the territory of which the act was cornmittedu
(Art. VI). Mr. President, it is my submission that the Respondent
State did not have territorial jurisdictionor control, either for
enforcement purposes or for prescription purposes, in the relevant
areas in the period to which the Application relates
(ii) The Genocide Conventiondoes not provide for the responsibilityof
States for acts of genocide as such. The duties prescribed bythe Convention rerate to "the prevention and punishmentof the crimeof
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genocide"Iwhenthis crime is comitted by individuals: and the
provisions of Articles V and VI of the Convention, in Our
submission,make this abundantly clear.
These two considerationsjointly and severally precludethe existence
of jurisdiction ratione materiae in accordance with ArticleIX of the
Genocide Convention.
Mr. President, the Memorial of the Applicant State is based upon a
fundamentally erroneous construction of the Convention and, in
consequence, the requests contained in the~Submissions~(Memorial,
pp. 293-295) are based on allegations of State responsibility whichfa11
outside the çcope of the Convention and of its comprornisçor~ clause.
In simple terms, there is a lack of subject-matterjurisdiction
because the Memorial relies upon allegations whichdo not fa11 within the
subject-matterof the Genocide Convention. And consequently,there is no
dispute for the purposes of Articles IX of the Genocide Convention.
There is a useful parallel with the outcome of the recent proceedings
in this Court relating 'O the Request for an Examination of the Situation
in Accordance with Paraqraph 63 of the Court's Judgment of
20 December 1974 in the Nuclear Tests case. In his separate opinion in
those proceedings JudgeShahabuddeenobserved:
"The law is clear that the Court cannotact unless there is
a dispute before it, and then only within the limits of the
dispute. The dispute which New Zealand referredto the Court in
1973 arose out of a claim by New Zealand which the Court found
applied 'only to atmospherictests, not to any other form of
testing' (emphasisadded). The Court would havebeen acting
ultra petita in 1974 had it sought to adjudicate on the legality
of underground tests(supposingit had been asked to do so),
these being anotherform of testlng. It is in respect of the
legality of underground tests thatNew Zealand's present Request
seeks relief. Thematters soughtto be so raised do not fa11
within the limits of the 1973 dispute by whichthe Court is
still bound."The finding of the &jority of the Court was in essence on the same
9
basis. ,--. -
Mr. President, in the present case the provisions of the Genocide
Convention extend to failures of a State to prevent or to punish acts of
genocide committed withinthe confines of its territorial jurisdiction.
These provisions do not extend to the responsibilityof a Contracting
Party as such for acts of genocide but to responsibility forfailure to
prevent or to punish acts of genocide committedby individuals withinits
territory, or by individuals otherwise withinits control.
The Nature of Responsibility for Breaches of the Convention
Mr. President, in elaboratingupon the argument, 1 shall demonstrate
to the Court that theGenocide Convention hasat no stage been
interpretedand applied in the manner urged upon this Court by the
Applicant State.
The Memorial asserts that the Convention imposes a direct
responsibilityupon States for acts of genocide. And, Mr. President,
there is simply nq justificationfor this assertion. Secondly, the
Applicant State fails to demonstrate the existence of any jurisdictionof
the Federal Republic of Yugoslavia in Bosnia at the material time.
What, then is the correct interpretation of the Convention?
Travaux préparatoires
The travaux involve a series of eight stages involvingvarious bodies
and groups of experts. And 1 shall confine myselfto the more
significantphases of this elaborate process.
The genesis of the project to draft a convention on the prevention
and punishment of genocide is to be found in General Assembly
resolution 96 (1) adopted on 11 December 1946 in which the Economicand
Social Council was requested to undertake the necessary studies. Thetext of the resolut&n can be seen in the Yearbook of the UnitedNations
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1946-1947, page 1254.
In response the Counlciladopted resolution 47 (IV) of 28 March 1947
instructing the Secretary General:
"(a) to undertake, with the assistance of experts in the
field of internationaland criminal law, the necessary studies
with a view to drawing up a draft convention in accordance with
the resolution of the General Assembly; and (b) after
consultation with the General Assembly Committeeon the
Development and Cadi-ficationof International Lawand, if
feasible, the Commission on Human Rights and, after referenceto
al1 Member Governmeritsfor comments, to submit to the next
session of the Economic and Social Councila draft conventionon
the crime of genocide" (Yearbookof the United Nations
1947-1948,p. 595).
The Ad Hoc Committee met from 5 April to 10 May 1948: see Report of the
Committee and theDraft Conventiondrawn up by the cornmittee; E/794,
24 May 1948, and E/794/Corr. 1, 10 June 1948; Yearbook of the United
Nations, 1947-1948,pp. 597-599.
The draft convention adopted and reported to the Economic and Social
Council is closely related to the text of the Genocide Conventionin its
final form. In particular draft articles V, VI, and VI1 prefigure
Articles IV, V and VI of the Convention respectively. Thedraft articles
were adopted asfollows:
"ARTICLE V
Those committing genocide or any of the other acts
enumerated in Article IV shall be punished whether
they are Heads of State, public officiais or
private individuals.
ARTICLE VI
(Domestic legislation) The HighContracting Parties undertaketo enact
the necessary legislationin accordance with their
constitutional proceduresto give effect to the
provisions of this Convention. - 12 -
- ARTICLE VI1
.; -.
(Jurisdiction) -- Perçons-chargedwith genocide or any of the other
acts enumerated in Article IV shall be tried by a
competent tribunal of the State in the territory
of which the act was committed or by a competent
internationaltribunal."
The debate in the Comrnitteerevealed a shared assumption that the
criminal responsibilityprovided for in Article V related exclusivelyto
individuals. In relation to Article VI1 al1 seven members of the
Committee agreedto recognize the jurisdictionof the courts of the State
on the territory of which the offence was committed (Doc.E/794, p. 29).
In this context, Mr. President, four Members of the Committeevoted
against theprinciple of universal jurisdiction. In the Report they use
the phrase "universalrepressionu. These four votes included thoscof
France, the United States and the USSR (ibid.,pp.32-33).
The Summary Recordof the meetings of the Ad Hoc Committee appearsin
DO^. E/AC.25/SR.l-27.
Discussions in the Economic and Social Council
After considerationin a plenary session of the Economic and
Social Council (26 August 1948) the Council decided (resolution153(VII))
to transmit the draft convention and the Report of the Ad Hoc Comrnittee
(E/794)to the third session of the General Assembly: Docs. E/SR.180,
E/SR.201, ~/SR.202, E.SR.218 and E/SR.219.
At its third session the General Assembly referred the Report of the
Ad Hoc Committee to the Sixth Comrnittee.
Discussions in the Sixth Committee, 29 October - 3 December 1948
The Sixth Committee spent fifty-onemeetings discussing the draft
convention and a number of amendments were adopted: see Summary Records
of the Sixth Committee, 29 October - 3 December 1948. The Report of the Sixth Committee (Doc. A/760 & Corr. 2) includes the
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text of the dract'conventionas approved by theCommittee and recommended
for adoption by the General Assernbly. This text is identicalwith that
of the Convention as approved by the General Assembiy, given that
amendmentsput forward at the 178th and 179th plenary meetings were
rejected.
The key provisions as adopted by the Sixth Committee are as follows:
"Article IV
Perçons commiti-ing genocide or any of the other acts
enumerated in Article III shall be punished, whether they are
constitutionally responsiblerulers, public officials or private
individuals.
Article V
The Contracting Parties undertake toenact, in accordance
with their respective Constitutions, the necessary legislation
to give effect to the provisionsof the present Convention and,
in particular, to provide effective penalties for perçons guilty
of genocide or of any of the other acts enumerated in
Article III.
Article VI
Perçons chargedwith genocide or any of the other acts
enumerated in Article III shall be tried by a competent tribunal
of the State in the territory of which the act wascommitted, or
by such international penal tribunal as may have jurisdiction
with respect to those Contracting Parties which shall have
accepted itsjurisdiction."
The discussionsin the Sixth Committee confirmed thatthe
responsibilityof the CcjntractingParties was related to the duties to
prevent and to punish acts of genocide committed by individuals within
the territory of the respective ContractingParty.
Thus there was no question of direct responsibilityof the State for
acts of genocide.
Mr. President, this analysis is perfectly compatible with Article IX
of the Convention,whickiprovides as follows: "Disputes betweenthe ContractingParties relatingto the
interpretatipg,application or fulfilment of the present
Convention &cluding those-relatingto the responsibilityof a
State for genocideor for any of the other acts enumerated in
Article III, shall be submitted to the InternationalCourt of
Justice at the request of any of the parties to the dispute."
Now, of course, this provision includes disputes"relating to the
responsibilityof a State for genociden. Those words appear in Article
IX. But of course the wordinghas to be construed together withthe
other substantive provisionsof the Convention. It is individualswho
are criminally liable, in accordance with the provisions of domestic law
as applied by domestic courts. States are responsible notfor breaches
of criminal law but for failure to implement the duties to mobilize their
domestic law to "preventand punishN acts of genocide, committed by
perçons over whom they exercise control.
ThaE, Mr. President, is why the Convention is entitled: "Convention
on the Prevention and Punishment of the Crime of Genocide".
The duties to mobilize the domestic law of Contracting Parties, and
to prevent and punish acts of genocide committed by individuals,are
inevitably related tothe exerciseof legislativeand enforcement
jurisdictionwithin State territory. The principles of State
responsibilityrequire an abilityto exercise control overthe area
concerned.
And this responsibilityof the State to prevent andpunish is a
"civilu and not a "criminaluresponsibility. As Nehemiah Robinsonpoints
out in his detailed study, this was the opinion of the majority of the
Sixth Committee (The Genocide Convention: A Commentary, New York, 1960,
pp. 101-102) . This was expreçsly recognized by the UK Representative,
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Mr. ~itzmaurice;t-as he then was-.The UEIand Belgium werethe authors of
the joint amendment whichgave rise to the reference "disputes relating
to the responsibilityof a State for any of the acts enumerated in
Articles II and IV" (as the text was at this stage).
It is clear that the Sixth Committee did not regard this phrasing as
connoting a criminal responsibilityof the State.
The UK Representativestated that theresponsibility envisagedin the
joint amendment "was civil responsibility, notcriminal responsibilitytl:
Generai Assembly, 3rd Session, Part 1, Sixth Committee, 103rd Meeting,
12 November 1948, Doc. A./C.6/SR.103, p. 440; and see also Fitzmaurice,
104th Meeting, ibid., p. 444; and 105th Meeting, ibid., p. 460.
This was also the position of Charles Chaumont, the French
Representative:103rd Meeting, ibid., p. 431. In the words of the
Summary Record:
"the representativeof France was in no way opposed to the
principle of the internationalresponsibilityof States as long
as it was a matter of civil, and not criminal responsibilitytt.
Similar views were expressedby Mr. Spiropoulosof Greece (103rdMeeting,
ibid., pp.432-33),Mr. riemesminof Haiti (ibid., p.436), and Mr. Ingles
of the Philippines (104thMeeting, ibid., p.442).
To this account maybe added some reference tothe debate on
Article V of the draft cionvention during the 93rd Meeting of the Sixth
Committee. This was the draft Article referringto the categories of
individuals who would bear criminal responsibilityfor acts of genocide
and this debate was conducted on the general assumption that the Stateas
such did not bear crimirialresponsibility. The Summary ~ecbrd of the 93rd Meeting reports theopinion of the
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United States rGGesentative, Mr . Maktos, as follows :
"Mr. MAKTOS (United Statesof Arnerica)wished to point out,
in his capacity as chairman of the Ad Hoc Committee on Genocide,
that it was not the French text of article V which had been
taken as the basis when that article had been voted upon. At
that time the Cornmitteehad thought the expression "heads of
State" was nearer to the French word gouvernants than.the word
l*rulers," which for example, would not include the President of
the United States of America."
And then we come to the important passagefor present purposes:
"Mr. Maktos did notshare the opinion of the UnitedKingdom
representativethat genocide could be comrnitted by juridical
entities, such as the State or theGovernment; in reality,
genocide was always committedby individuals. It was one of the
aims of the convention on genocide to organizethe punishment of
that crime. It was necessary to punish perpetrators of acts of
genocide, and not to envisage measures such as the cessation of
imputed acts or payment of compensation. " (Doc. A/C.6/~.R. 93,
pp. 319-320.)
As 1 have already pointed out, Fitzmaurice,the U.K. representative,
subsequentlyexplained that the responsibilityenvisaged was "civil
responsibility,not criminal responsibility".
So much for the travaux préparatoires .
Interpretation in the Doctrine
The analysis of the travaux 1 have offered to the Court is confirmed
by the preponderance of authoritative opinionin the literature and this
can be divided into two categories.The first consists of'doctrine which
is more or less contemporaneouswith the adoption of the Genocide
Convention on 9 December 1948.
Contemporaneous Doctrine
One of the first commentaries to appear is:
1. Anonymous. Yale Law Journal, Vol., 58 (1948-1949),pp. 1142-1160.
This "Commentary"emphasizes that: "Jurisdictionof the offense would
be confined to a territorialbasis, with States extraditing fleeing offenders in accordance with their lawsand treaties currently in
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force. i~.~!3'147) -
2. Josef Kunz, who was an influentialcommentator of that period,
writing especially in the American Journal, and writing inthe
American Journal he focused upon what he called l'theold-fashioned
and traditional"aspects of the Convention.In the words of Joseph
Kunz :
"There is nothi-ngrevolutionaryin the Convention. Thenew
crimes merely are ailaddition to the delicta juris gentium, such
as piracy, slave triade,counterfeitingand so on. The crimes
under Articles II and III are 'crimesunder internationallawl,
but not crimes against internationallaw. These crimes are
defined by internationallaw; but individuals are only under a
duty if and when the States enact the correspondingdomestic
legislation. TheCoinvention gives criminal jurisdictionunder
its domestic law to the state in the territoryof which-the act
was committed; in addition, as the Sixth Committee stated,
Article VI 'doesn0.taffect the right of any state to bring to
trial before itsown tribunals any of its nationals for acts
committed outside of the Statel."
And Kunz continues:
"The legal sitilationis, therefore, the following one. Each
contracting party is bound to try in its domestic courts, under
domestic law enacted in carrying outthe Convention, anyprivate
individual,public official or constitutionally responsible
ruler, whether a citizen or an alien, for any of the crimes of
Articles IIand III, committed inthe territory of this state,
whether against aliens or citizens; every contractingparty is,
further, entitled to try its own nationals for the same crimes
committed abroad."
And he finishes:
"That these crimes shall not be considered politicalcrimes
for the purposes of extradition is nothing new; and the parties
pledge to grant extradition only 'in accordance with their laws
and treaties in force'." (AmericanJournal, Vol. 43 (1949),
p. 745.)"
3. Jean Graven, in his course at the Hague Academy on "Les Crimes contre
l'humanitéH,and he analysed the debate inthe Sixth Committee on the
nature of the State responsibility envisagedin the draft convention.
In his opinion, the possibility of a criminal responsibilityof the State was excluded (Recueildes Cours, Vol. 76 (1950-11,
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pp. 507-51ij-.'
4. Writing in the American Journalin 1951, Judge Manley Hudsonproduced
a detailed analysisof the provisions of Article IX of the
Convention, the compromissory clause. Inhis words:
"Insofar as this article provides for the settlement of
disputes relating tothe interpretation, applicationor
fulfilment (in French, exécution) of the Convention, it is a
stock provisionnot substantially unlike that found in many
multipartite instruments.
The article goes further, however, in 'including'among
such disputes 'those relating to the responsibilityof a State
for genocide or any of the other acts enumerated in
Article III'. As no other provision in the Convention deals
expressly with state responsibility, it is difficult to see how
a dispute concerningsuch responsibilitycan be included among-
disputes relatingto the interpretationor application or
fulfilment of the Convention. In viewof the undertaking of the
parties in Article 1 to prevent genocide, it is conceivable that
a dispute as to state responsibilitymay be a dispute as to
fulfilment of the Convention.Yet read as a whole, the
Convention refersto the punishmentof individualsonly; the
punishment of a state is not adumbratedin any way, and it is
excluded from Article V by which the parties undertake to enact
punitive legislation. Hencethe 'responsibilityof a State'
referred to in Article IX is not criminal liability. [In the
course of the drafting of the Convention by the Sixth Committee
of the General Assembly,the Delegation of the United Kingdom
withdrew its proposa1 to impose criminal responsibilityon
States (U.N. Doc. A/C.6/236) and supported the imposition of
civil responsibility.General Assembly, 3rd Sess., Pt. 1,
Official Records, Sixth Committee, pp. 428,440. ] Instead it is
limited [that is the Convention],to the civil responsibilityof
a state, and such responsibilityis ooverned, not by any
provisions of the Convention,but by general international law."
(AmericanJournal, Vol. 45 (1951),pp. 33-34.)
And that passage which 1 have offered to the Court is reproduced in an
important work ofreference, the volumes of the Digest of International
Law edited by Marjorie M. Whiteman, in Vol. 11, 1968, p. 857
5. Item 5 is a long passage £rom the standard work inthose days of
Professor Sibert Traité de droit internationalpublic, published in
Paris in 1951, p. 446) . In paragraph 264 on page 446 Sibert gives a list of what he regards
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as the weakness&'in the Convention and the fifth element of weakness
which is (e) is the relevant point for the presentpurposes. And 1 leave
the Court to see the relevantpassage in the transcript.
"284. De quelques autres vices de la convention. En
réalité la convention rejette le principe des mesures
internationalespour réprimer le crime.C'est là le plus grave
de ses défauts. Il en est d'autres. Relevons ceux-ci: a) Les
gouvernants, leurs agents, les simples particuliersne sont pas
seuls à commettre le crime de génocide: desorganisations
terroristes le peuvent préparerou perpétrer. La Conventionn'en
dit mot. LIURSS avait proposé des mesures pour en paralyser
l'activité: les USA s'y opposèrent sous le prétexte fallacieux
des libertés fondamentales, dela liberté d'information,de
presse, d'association,comme s'il pouvait y avoir libertépour
le crime de se prépa.rer à sa guise. LIEgypte se rangea aux côtes
des U.S.A. en invoqu.ant que la proposition soviétique
s'apparentait à la propagande en vue du génocide dont la notion
venait d'être reconnue trop vague pour figurer dans la
convention; b) la cc~nvention (art. III) n 'envisage pas la phase
préparatoire du génocide; cl elle se désintéresse à peu près
totalement de la 1ut:te collective qui pourtant s'impose pour le
prévenir. Sans doute à l'article 1" de la convention les hautes
parties contractantess'engagent-elles à le punir et à le
prévenir individuel1.ementN .ulle part l'entraide internationale
n'est ni moindrement. organisée ni même prévue sérieusement aux
fins de la prévention collective: on n'accomplit rien d'efficace
en disant, comme le fait l'articleVIII: 'Toute partie
contractantepeut saisir les organes compétents des Nations
Unies afin que ceux-ci prennent, conformément à la Charte des
Nations Unies, les niesuresqu'ils jugent appropriées pour la
prévention ... des actes de génocide ' : d) 1e ggnocide cul turel
et le génocide des groupes politiques ne sont pas inclus dans la
convention. Contre cet inexplicable ostracisme,les USA et la
Chine (le 2 décembre 1948) ont vigoureusementprotesté. Que la
clause relativeaux groupes politiques aitété au dernier moment
rejetée de la façon la plus inattendue,c'est regrettable,
disait le délégué chinois, en raison du fait que, dans le monde
d'aujourd'hui,les c;onflitsentre peuples sont largement fondés
sur des éléments ideologiquesdépassant les frontières
nationales, raciales ou religieuses. Par là-même les groupes
politiques ont, en tant que tels, plus besoin que tout autre
groupement humain, d'être protégés; e) la convention ne se
précccupe pas de la responsabilité civile de 1 'Etat pour cause
de génocide. Son silence, à cet égard paraîtdonner gain de
cause, bien à tort, à ceux qui étaient hostiles à une telle
responsabilité, prétextepris de ce que l'on ne saurait
stigmatiserun Etat tout entier pour desactes dont seulsses
fonctionnairesou gouvernants sont responsables. Pareilpoint de
vue ne s'insurge-t-:il pas, sans justificationpossible, .à la
fois contre: a) toute la jurisprudence des tribunaux internationaux-qui, depuisdéjà longtemps, consacrent la
responsabili-t& de la collectivité étatiquepour les actes de ses
gouvernanti;&u de ses agents quand ils méconnaissent ledroit
des gens et b) contre les mouvements jurisprudentiels ou
législatifs de plus d'un pays qui soumettentde plus en plus la
puissance publiqueelle-même à l'obligationde réparer au
bénéfice de ses propres assujettis les dommages résultant des
accomplissements illégauxde ses représentantsou de ses agents?
Tant de défauts dénoncés parplus d'une délégation ne
pouvaient pas permettre qu'on donnât long crédit au texte né,
dans un pénible enfantement, sur la colline de Chaillot en
décembre 1948; aussi l'article 14 ne lui a-t-il assigné en
principe qu'une durée de dix ans à partir de la date de son
entrée en vigueur (avec prolongation possible,il est vrai, de
cinq ans en cinq ans, sauf dénonciation avantl'expirationdu
terme) .
Si l'on préfère l'efficacitéaux textes spectaculaireson
voudra mettre ce délai à profit pour reprendre à pied d'oeuvre
une construction dans laquelleon ne peut voir qu'un point de
départ sur la route ardue qui conduitau respect absolu-des
droits les plus sacrés de l'humanité."
The important point inmy submission is that Professor Sibert takes
the view that the Convention does not even impose civilresponsibilityon
a State.
Subsequent Doctrine
Now 1 have given what 1 hope is a sufficiently substantial sampleof
contemporary literatureto the Court. 1 now want, quite briefly, to look
at some of the more important itemsof subsequent doctrine, subsequent
commentary on the Convention. And 1 think the doctrine which has
appeared subsequently amply confirmsthe analysis adopted in the
contemporaneous commentaries.
1. The first item is the publication 1 have already referred to by
Nehemiah Robinson, The Genocide Convention : A Commentary, which was
published by the World Jewish Congressin New York in 1960. This is a
meticulous and scholarlyaccount of the preparation of the Convention
together with an analysis of its provisions. In the examinatjon ofArticle IX, Dr. ~ob~ksondescribes the fate of the original British
-:-c
proposa1 for the-criminalresponsibilityof States and the appearance of
the joint Anglo-Belgianproposa1 "which was regarded by the membersof
the Committee as involviingcivil responsibility" (pp. 99-106 of the study
by Robinson and, in particular, at p. 102, footnote 6).
2. The second itemof subsequent doctrine is the chapter contributed
by Judge ODA to the excellentManual of Public InternationalLaw edited
by Max Sorensen and p&lished in 1968.
Judge Oda describes the adoption of the Genocide Conventionthus:
"In another resolutionadopted at the same time, the
General Assembly declared that genocide was a crime under
internationallaw, for which the perpetrators, whetherthey were
statesmen,public officials or private individualswere
punishable (res. 96(1), 11 December 1946). It took stebs to
conclude a convention on the subject, and as a result, the
Convention on the Prevention and Punishment of the Crime of
Genocide, knom as the Genocide Convention,was adopted by the
General Assembly in 1948, and brought into forcein 1951 (78
LINTS,277). The contracting Parties declare in this Convention
that genocide, whet.hercommitted in timeof peace or in time of
war, is a crime under internationallaw, which they undertake to
prevent and punish. It is laid dom that those who are guilty
of genocide must be punished whether they areconstitutionally
responsible rulers, public officials orprivate individuals.
Genocide is defined in this Conventionas acts committed with
intent to destroy a national, ethnical, racial or religious
group, by killing members of the group, causing serious bodily
or mental harm to members of the group, deliberately inflicting
on the group conditionsof life calculatedto bring about its
physical destruction, imposing measures intendedto prevent
births within the group, or forcibly transferringchildren of
the group to anothergroup."
Judge Oda continues:
"The contracting States are requiredto enact the necessary
legislation to give effect to the provisions of the Convention,
and, on the other tiand,may cal1 upon the competent organ of the
United Nations to t.akeappropriate actionfor the prevention and
repression of genocide. Perçons charged withgenocide may under
the terms of the Cc>nvention be tried, as a rule, by a competent
tribunal of the State in the territory of which the act was
committed, or by any international penal tribunal whose
jurisdictionhas been recognizedby the States concerned. Use
has not yet been made of this procedure for the establishment of
a permanent internationaltribunal and there seem to be few chances to eff&t this tribunalin the near future. In spite of
certain prac-*al difficulties,it may be of great importance
that genoc* is now considered a crime by individualsunder
internationallaw and that its suppression is being seriously
considered by the United Nations." (Manual of Public
International Law, New York, 1968, p. 517. )
Mr. President, it is clear that the learnedwriter did not
regard the Convention as creating a criminal responsibilityof the
contracting parties.
3. And one more element in thesubsequent doctrineis the
learned essay by Professor Malcolm Shaw, in the volume International
Law at a Time of Perplexity, edited by Dinstein the Essays in Honour
of Shabtai Rosenne (Dordrecht,1989, p. 797). Professor Shawreports
the drafting of Article IXas follows:
"Of particular interest is the provision relating tothe
question of jurisdiction over State responsibility for genocide.
This was included in an attempt to make the Convention more
effective, although considerable opposition was expressed onthe
grounds of the controversialand vague nature of State
responsibilityin areas of internationalcriminal law. The
majority took the view that it was rather an issue of civil
responsibility involving liability to pay damages. The question
of States having to compensate their own nationals under an
internationallegal rule also caused some interest in this
connection,but without clarificationor determination." (P.
818, Footnotes omitted.)
The Opinion of the United States in 1950
The analysis is further confirmed by the position adoptedby the
United States Government during the hearings on the Convention before a
sub-committeeof the Committee on Foreign Relations of the United States
Senate. During the course of the hearings Dean Rusk, then Deputy Under-
Secretary of State, gave the following analysisof the provisions of the
Convention. And 1 quote:
"1 should like to state here in general that the Convention
does two things: It defines the crime of genocide, and it obligates ~tat& to take measuresto prevent andpunish genocide
within their.: .spect;iv territories.
--
Genocide, as defined in article II of the convention,
consists of the cornniissio nf certain specifiedacts, such as
killing or causing serious bodily harm to individuals who are
members of a national, ethnical,racial or religious group, with
the intent to destroy thatgroup. The legislative historyof
article II shows that the United Nations negotiators feltthat
it should not be necessary that an entire human group be
destroyed to constit:ute the crime of genocide; but rather that
genocide meant the partialdestructionof such a group with the
intent to destroy the entire group concerned. In terms of
practical applicationwithin the UnitedStates, genocide means
the commission of such acts as killing members of a specified
group and thus destroying a substantialportion of that group,
as part of a plan to destroy that entire group within the
territory of the United States. It can thus be readily seen that
genocide, as defineciin this Convention, hasnever occurred in
the United States and is not likely to occur here in the future.
The purpose of the convention is, however, to provide for
the prevention and punishment of the crime of genocide. The
convention does not purport to substitute international-
responsibility for States' responsibility, but does obligate
each State to take steps within its own borders to protect
entire human groups in their right to live." (Whiteman,op.
cit., supra, p. 860) .
In this statement there is no indication whatsoever that the United
States Government considersthat the criminal responsibilityof the State
is involved inacceptance of the Genocide Convention.
Indeed, this position is in line with the views of the
representativesin the Sixth Committee, and it reflects the very terms of
the General Assembly resolution,which is the genesis of the whole
project to draft a genociae convention. This is the resolution of 1946,
and the material part of that resolutionwas as follows:
"THE GENERAL ASSEMBLY, THEREFORE,
AFFIRMS that genocide is a crime under international law
which the civilized world condemns, and for the commission of
which principals and accomplices - whether private individuals,
public officiaisor statesmen, and whether the crime is
committed on religious, racial,political orany other grounds -
are punishable; INVITES the Member States to enact the necessary
legislation-.:-the prevention and punishment of thiscrime;
-- -
RECOMMENDS that internationalCO-operationbe organized
between States with a view to facilitatingthe speedy prevention
and punishment of the crime of genocide, and, to this end,
REQUESTS the Economic and SocialCouncil to undertake the
necessary studies witha view to drawing up a draft convention
on the crime of genocide to be submitted to the next regular
session of the General Assembly."
In the same sources, both relatingto the views of Governments and the
doctrine, al1 these sources emphasizethe link between the duties of the
Contracting Partiesand the territorialjurisdictionof the State
concerned.
Failure of the Applicant State to prove its assertions concerning the
application of the Convention
Mr. President,Members of the Court, in the Mernoriaithe Applicant
State fails to substantiateits assertions concerning theapplication of
the Convention
The Mernorial(pp. 191-208) makes a series of legal assertions based
upon a fundamental misconceptionof the text of the Convention and of its
preparatory work
The astonishingthing is that, in front of the Court, the other side
essentially ignores the literature. It is ignored with the sole
exception of a passage fromthe ninth edition of Oppenheim which,
unhappily, is quoted out of context. The relevantpassage in full will
appear in the transcript. The passage 1 am about to read is the passage
quoted in the Memorial. "The 1nteAationa1 Court of Justice is given jurisdiction
with regard.,* disputes relating to the interpretation,
applicatiok-ànd fulfilment- of the Convention, includingthe
responsibilityof the parties for acts of genocide."
That is where the quotat.ionin the Memorial ends. The passage which
follows, which will appear in the transcript, is this:
I1Itis apparent that, to a considerable.extent,the
Convention amountsto a registrationof protest against past
misdeeds of individual or repression in future. Thus, as the
punishment of actsof genocide is entrustedprimarily to the
municipal courts of the countries concerned, it is clear that
such acts, if perpetrated inobedience to national legislation,
must remain unpunished unless penalised by way of retroactive
laws. On the other hand, the Convention obligesthe parties to
enact and keep in force legislation intended to prevent and
suppress such acts, and any failure to measure up to that
obligation is made subject to the jurisdictionof the
InternationalCourt of Justice and of the United Nations."
It is Our submission that the fullquotation does not suppor2 the view
adopted in the Memorial and that the full passage isin Oppenheim at
page 994 and also in the transcript
In the Statement 0x1 Preliminary Objections filedby the Applicant
State only one paragraph is devoted to the literature on the Convention
(p. 107, para. 5.19). The 9th edition of Oppenheim, Volume 1, is cited
once again without adeqiiatequotation.
This leaves, in that source, the Statement on Preliminary Objections,
the quotation from Perlrnan, which refers to killings "by governments" and
a reference to the work of Farhad Malekian. Unfortunately, Malekian
refers exclusively toPerlman, and does not examine the literature
otherwise. What this adds up to, Mr. President, is that the Government
of Bosnia-Herzegovinahas not seen fit to present a review of the
literature as a whole.The failure of the ~pplicant State to establish the applicability of the
Convention to =oslavia in respect of Bosnia
..- -
-.
Now, if 1 can bring the Court backto the precise content of the
fifth preliminary objection of Yugoslavia. This consists essentiallyof
four propositions.
First, the Conventioncan only apply in respect of-a-failureto
prevent or punish acts of genocide committed within the territory of the
Contracting Party.
Secondly, after the end of April 1992 the Federal Republic of
Yugoslavia no longer exercisedterritorial jurisdiction in Bosnia.
Thirdly, in the result there can be no room for the application.of
the Convention in relation to alleged acts of genocide committed within
Bosnia after the endof April 1992 vis-à-vis Yugoslavia.
Fourthly, it follows that there can be no dispute for the purposes of
Article IX of the Convention,because there are no allegations relating
to acts of the Yugoslav armed forces supposedto have taken place prior
to the end of April 1992.
Yugoslavia has not exercised territorial jurisdiction within Bosnia since
the end of April 1992
It is the position of Yugoslavia that after the end of April no
territorial jurisdictionwas exercised in Bosnia. After the end of April
the Yugoslav NationalArmy, the JNA forces, were withdrawingand so far
as there was a continued presence, this was the result exclusively of the
imposition of road blocks andattacks by local militia. The United
Nations locallyhad to deal with the problem of what was known as
"de-blocking" . The Bosnian Muçlim leadershippurported to declare independenceon
-=-Y
6 March 1992 (see'theApplication, para. 14). By 27 April 1992 the
Yugoslav Governmenthad decided on a policy of withdrawal and on
4 May 1992 the Presidency took the decision to accelerate withdrawal
The Bosnian Memorial States that on 27 April 1992 the Bosnian Government
"ordered al1 Federal Army troops to leave the territory of the Republic"
(p.77, para. 2.3.6.1)
As the Government of Yugoslavia has stated in its Preliminary
Objections:
"Since the end of April 1992, the FRY has not carried out
any act of authority nor has it had any jurisdiction overthe
territory of the formerYugoslav Republic of
Bosnia-Herzegovina." (P. 90, para. 1.17.19.)
On 27 April 1992 the Federal Republicof Yugoslavia was proclaimed,
consisting of Serbia and Montenegro, within their existing frontiers.
The Bosnian Notice of Succession was backdated to 6 March 1992
In the present contextit is relevant to recall the terms of the
Bosnian Notice of Succeçsion transmitted to the Secretary-General on
29 December 1992.. These were as follows:
"the Government of the Republic of Bosnia and Herzegovina,
having considered the Convention on the Prevention and
Punishment of the Cirimeof Genocide, of December 9, 1948, to
which the former ScicialistFederal Republicof Yugoslavia was a
Party, wishes to suicceedto the same and undertakes faithfully
to perform and carry out al1 the stipulations therein contained
with effect from Ma.rch 6, 1992, the date on which the Republic
of Bosnia and Herzegovina became independent".
So this Notice of L;uccession constitutesa recognitionby Bosnia that
Yugoslavia would notrernainresponsible for the applicationof the
Convention withinBosniiaafter it had become independent. And this
point, of course, is presented on the basis thatit is without prejudice
to the position of Yugo,slavia generally on the issue of State succession. the Memorial relate to events after the
The Allegations of Genocide in
end of April .:-q2 with two exceptions
-- -
Mr. President, Members of the Court, the astonishing thing is that
when the allegations containedin the Memorial are examined carefully it
will be found that, with only two exceptions, they relate to events in
May 1992 or later.
The two exceptions relateto events alleged to have occurred in
April 1992 and yet there is no evidence that Yugoslav armed forces were
involved (seeMemorial, p. 49, para. 2.2.5.5 and p. 50, para. 2.2.5.8)
Both the Bosnian Application and the Memorial relate to acts alleged to
have been conmiitted by Irregular Forces
With very rare exceptions boththe Application and the Memorial state
that the alleged crimes were committedby paramilitarygroupç and not by
members of the Yugoslav National Army (seeApplication,paras. 34-83, and
Memorial, pp. 17-59) .
There is a total failure to produce evidence that the command
structure of Bosnian Serb forces was linked to that of the Yugoslav armed
forces. And the Secretary-General'sReport of 30 May 1992 (S/24049)
clearly indicatesthe absence of a command structure as early as
May 1992, in the light of the obvious independenceof action of the
commander of the Bosnian Serb forces.
The relevant paragraphs areas follows:
"8. Uncertainty about who exercises political control over
the Serb forces in Bosnia and Herzegovina has further
complicated the situation. The Bosnia and Herzegovina
Presidency had initially been reluctantto engage in talks on
these and other issues with the leadership of the 'Serbian
Republic of Bosnia and Herzegovina' and insistedupon direct
talks with the Belgrade authorities instead. A senior JNA
representativefrom Belgrade, General Nedeljko Boskovic, has
conducted discussions withthe Bosnia andHerzegovina
Presidency,but it has become clear that his word is not binding
on the commander of the army of the 'SerbianRepublic of Bosnia
and Herzegovina',General MladiC. Indeed, as indicated in
paragraph 6 fb) above, Serh irr-egulars attacked a JNA convoy withdrawing from a barracks at Sarajevo on 28 May under
arrangement--wgotiated by General Boskovic. It also appears
that the he&e she1:Lingof-Sarajevo on the night of 28/29 May
took place on the orders of General Mladie in direct
contraventionof instructionsissued by General Boskovie and the
JNA leadership in Belgrade.
9. Given the doubts that now exist about theability of the
authorities in Belgrade to influence General MladiE, who has
left JNA, efforts have been made by UNPROFOR to appeal to him
directly as well as through the political leadershipof the
'SerbianRepublic of Bosnia and Herzegovina'.As a result of
these efforts General MladiC agreed on 30 May 1992 to stop the
bombardment of Sarajevo. While it is my hope that the shelling
of the city will not be resumed, it is also clear that the
emergence of General MladiQ and the forces under his command as
independentactors apparentlybeyond the control of JNA greatly
complicates the issilesraised in paragraph 4 of Security Council
resolution 752 (1992). President IzetbegoviChas recently
indicated to senior UNPROFOR officers at Sarajevo his
willingness to deal with General MladiC but not with the
political leadershipof the 'SerbianRepublic of Bosnia and
Herzego~ina'.~
In the absence of proof of the existenceof a command structurelinking
the Bosnian Serb armed forces and the armed forces of Yugoslavia, there
can be no question of the responsibilityof Yugoslavia in any case.
However, this view is hypotheticalbecause, once Yugoslavia no longer
exercised territorialjurisdiction,the Genocide Conventionwas in limine
no longer applicable.
And the Court will no doubt bear inmind that, according to Bosnia,
the Convention came into force for Bosnia with effect from 6 March 1992,
and therefore on this view it was Bosnia which had the responsibility to
prevent and punish genocide in the territory it claimed
The existence of a dispute for the purposes of Article IX of the
has the character of a preliminary question
As 1 have already had occasion to point out inrelation to the first
preliminary objection, the lack of applicabilityof the provisionsof the
Genocide Convention tothe subject-matterof the Application produces a
bar to the competence of the Court which can be classified in two ways. In the first pkke the jurisdictionalclause requires the existence
-<.Br
of a dispute, and'the absenceo.£a relevant subject-matterconstitutes a
question of the ambit of the jurisdictional clauseand therefore an issue
of competence.
At the same time the absence of any legal dispute between the parties
precedes competenceand may be classified as a preliminary objectionof a
non-jurisdictionalcharacter. The natureof such an objection was
explained by Sir Gerald Fitzmauricein his separate opinion in the
Northern Cameroons case as follows:
"There are however other objections, notin the nature of
objections to the competence of the Court, which can and
strictly should be taken in advance of any question of
competence. Thus a plea that theApplication did notdisclose
the existence, properlyspeaking, of any legal dispute between
the parties, must precede competence, for if there is no
dispute, there is nothing in relation to which the Court can
consider whether it is competent ornot. It is for this reason
that such a plea would be rather one of admissibilityor
receivabilitythan of competence. In the present case, this
particular ground of objection arose as one of competence,
because the jurisdictional clauseinvoked, namely Article 19 of
the Trust Agreement, itself required the existence of a dispute.
But irrespectiveof the particular languageof the
jurisdictionalclause, the requirement that there mustbe an
actual dispute in the proper sense of the term, and not merely
(for instance)a simple differenceof opinion, is a general one,
which must govern and limit the power of any tribunalto act.
For reasons 1 shall give later, 1 consider that there was not,
in this sense, a dispute in the present case." (I.C.J. Reports
1963, p. 105.)
Conclusions
Mr. President, distinguished Membersof the Court, at this stage 1
can present my concluding submissions.
The first key element is the reliance by the Applicant State upon a
compromissory clausein a standard-settingtreaty. It must follow that
the Court will apply the compromissoryclause to the text of the treaty
as concluded and not to an alternative versionof the obligations of
States not based upon the treaty which contains the compromissory clause. The second key-elementis the lack of application of the Genocide
---Bi-
Convention to t&-'subject-mattarof the Request in the Application in
light of the fact that Yugoslavia has nothad any power to exercise
jurisdiction overthe territory of Bosnia-Herzegovinasince the end of
Aprii 1992.
Furthermore, it is the contention of the Appiicant State that since
6 March 1992 it is Bosnia, not Yugoslavia, which hashad the
responsibility toprevent and punish acts of genocide in the relevant
area
As a result, Mr. President, the Convention is inapplicable to the
subject-matterof the Application. It follows that there is no dispute
between Bosnia andYugoslavia for the purposes of Article IX of the
compromissoryclause, and therefore the Courtlacks competence.
Mr. President, 1 thank you and your colleaguesfor their patience. 1
would propose, respectfully,that it would be helpful if Mr. Etinski
could start his speechafter the coffee break, although this would be a
slightly premature summoningof the coffee break. But 1 am in your
hands, Sir.
The PRESIDENT: Tha:nkyou very much, Professor Ian Browniie for your
statement. The hearing is suspended for a break of 15 minutes and the
sitting will resume at 11.15 a.m.
The Court adjourned from 11 a.m. to 11.15 a.m.
The PRESIDENT: Please be seated. The sitting is resumed and 1 give
the floor to Mr. RodoljttbEtinski, Agent of Yugoslavia.
Mr. ETINSKI: Mr. President, distinguished Membersof the Court, may
it please the Court. - 32 -
Professor Suy demonstrated yesterday very convincingly that the claim
-=.s
of the ~~plicanf-tothe effect-that the Genocide Conventionhad been
operative betweenthe Parties since 6 March 1992 was not based on law.
In doing so, he has proved that, in case the Courtfinds that the
Applicant is a party to this Convention, it was not applicable before
14 December 1995 or 29 March 1993 or 18 March 1993. As the last
alternative ProfessorSuy claimed that it was applicable since
29 December 1992. Making every effort not to repeat the arguments of
Professor Suy, 1 shall take this opportunity to refreshOur memories of
the preparatory work of the InternationalLaw Commission. Besides, 1
submit to draw your attention to certain actsof the former Yugoslav
Republics by which they denied the rule of automatic success~ion.
Already at the first session of the Court inOur case,
Mr. Shabtai Rosenne, a member of the InternationalLaw Commission at the
time when it prepared theDraft Conventionon Succession of States in
respect of Treaties, pointed out thatthe instrument of thenotification
of succession is reserved for the newly-independentStates born in the
process of decolonization. The majority of new States that emerged after
1990, not born in the process of decolonization,followed the main Stream
of internationalpractice in this fieldand did not use the instrument of
notification of succession. These States are al1 former
Soviet Republics, Armenia, Azerbaijan, Estonia, Georgia, Kazakhstan,
Kyrgyzstan, Latvia, Lithuania,Republic of Moldova, Tajikistan,
Turkmenistan and Uzbekistan. Al1 of them used accession. Only the
Czech Republic, Slovakia and the former YugoslavRepublics used the
notification of succession to enter into the multilateral treaties of the
predecessor State. Thishas been a departure from the deep-rooted
practice and 1 do not believe that the Court will see in it a sufficientreason to uphold that the existing customary rules have changed.
-.s
However, if the:~àurt does find that this departure suffices to make the
customary rules reserved for the newly-independent Statesborn in the
process of decolonizationapplicable to al1 new States, 1 plead the Court
to take into accountthe following arguments:
(a) the clean slate principlehas always been and it is now a part of
general internationallaw;
(b) the rules on notification of succession of States to multilateral
treaties have been:barnin the practice of decolonizationand they
are codified by the United NationsConference on Succession of States
in respect of Treaties in 1977 and 1978;
(c) the rules on notificationof succession, born in the process of
decolonization, havebeen used after theUnited Nations Conference on
Succession of States in Respect of Treaties, as general rules of
internationalcustomary law;
(d) one significant rule among them is the rule on non-retroactive
effects of the notification of succession;
(e) the Applicant has not proved that a rule of automatic succession
exists as an international custom or as a rule binding on the Parties
in dispute;
(f) the Applicant hasd.eniedthe existence of the rule of automatic
succession and its applicabilityto the Parties in dispute;
(9) accordingly, the succession of the Applicant to the Genocide
Conventionmay be regulated by the customary rules reflected in
Articles 16, 17, 22 and 23 of the Vienna Convention on Succession of
States in respect of Treaties (hereafterthe 1978 Vienna Convention).(a) The clean-slateprinciple has alwaye been and it is now a part of
general int,..ional law
-- -
The clean-slateprinciple is presented in Article15 of the Draft of
the International Law Commissionof 1974. The Commissionhad no doubt as
to the customary originand universal validity of this rule. In the
Report of the InternationalLaw Commission on the work of its
twenty-sixth session, 6 May - 26 July 1974 (Document~/9610/Rev. 1) it is
said:
"The majority of writers take the view, supported by State
practice, that a newly independent State begins its life with a
clean slate, except in regardto 'local1or 'real1obligations.
The clean slate is generally recognizedto be the 'traditional'
view on the matter. It has been applied to earlier cases of
newly independent Statesemerging eitherfrom former colonies
(i.e.,the United States of Arnerica; the Spanish American
Republics) or from a process of secession or dismernbermènt
(i.e.,Belgium, Panama, Ireland, Poland, Czechoslovakia,
Finland) ..." (YILC, 1974, Vol. II, Part One, p. 211.)
Supporting the Draft of the InternationalLaw Commissionat the
session of the United NationsConference on Succession of States in
respect of Treaties of 21 April 1977, the delegation of Madagascar, inter
alia, said:
"That the 'cleanslatel principle was universally and
unconditionallyaccepted was shown not only by paragraph (3) of
the commentary to Article 15 (A/CONF.80/4,p. 521, which
referred to that principlels traditional character,but also by
the numerous and concordant instancesof the practice in most
States, which seemed alsoto indicate that the so-called
continuity rule had hardly withstoodthe tests of time and
practice." (UnitedNations Conferenceon Succession of States in
respect of Treaties, first session, Vienna, 4 April-6 May 1977,
Official Records, Vol. 1, p. 160.)
Since al1 participants in the debate supported thisprinciple, it was
accepted and became Article 16 of the Conventionwhich reads:
"A newly independent State is not bound to maintain in
force, or to become a party to, any treaty by reason only of the
fact that at the date of the succession of States the treaty was
in force in respect of the territory to which the succession of
States relates." After all, this provision reflectsthe main principle that a treaty
-:-y
cannot be bindiCg7on a State without its consent.
(b) The rules on notification of succession of States to multilateral
treaties have been born in the practice of decolonization and they
are codified by the United Nations Conference on Succession of States
in respect of Treaties in 1977 and 1978
1 shall examinefor a while the rules contained-in- Articles 17, 22
and 23 of the 1978 VienriaConvention. These rules are presented in
Part III of the 1978 Vienna Convention. 1 shall not examine al1 the
rules from Part III, because only the said rules pertain to the case
before the Court
Thus, Article 17, paragraph 1, of the 1978 Vienna Convention reads:
"Subject to paragraphs 2 and 3, a newly independent State
may, by a notification of succession, establish itç çtatus as a
party to any multilateral treatywhich at the date of the
succession of States was in force in respectof territory to
which the succession of States relates."
The subsequent two paragraphsof the Article do not pertain to Our
case and I shall not examinethern. In the Report of the International
Law Commissionon the work of its twenty-sixthsession,
6 May-26 July 1974, the said rule is commented in the followingway:
"In the case of multilateral treaties ingeneral, the
entitlementof a newly independent Stateto become a party in
its own name seems well settled, and is indeed implicit in the
practice already di.scussedin the commentaries to Articles 8, 9
and 15 of this draft. As indicated inthose commentaries,
whenever a former ciependency of a party to multilateral treaties
of which the Secretary-Generalis the depositary emerges as an
independentState, the Secretary-General addressed to it a
letter inviting it to confirm whetherit considers itself to be
bound by the treaties inquestion. This letter is sent in al1
cases; that is, when the newly independentState has entered
into a devolution agreement, when it has made a unilateral
declaration of provisional application,and when it has given no
indication as to its attitude in regard to its predecessor~s
treaties. The Secretary-General does not consult the other
parties to the treaties before he writes to the newly
independent State, nor does he seek the views of the other
parties or await tfieirreactions when he notifies them of any
affirmative replies received fromthe newly independent State.
He appears, therefore,to act upon the assumption that a newly independent state has the right, if it chooses, to notify the
depositary owts continued participationin any general
multilatera~'treatywhich was applicablein respect of its
territory prior to the succession. Furthermore,so far as is
known, no existing party to a treaty has ever questioned the
correctnessof that assumption; while the newly independent
States themselveshave proceededon the basis that they do
indeed possess such a right of participation.
The same appears, in general, to hold.good for multilateral
treaties which have depositaries otherthan the Secretary-
General. Thus, the practice followed by the Swiss Governmentas
depositary of the Convention for the Protection of Literary and
Artistic Works and subsequentActs of revision, and by the
States concerned, seems clearly to acknowledge that successor
States, newly independent,possess a right to consider
themselves parties tothese treaties in virtue of their
predecessors' participation; and this is true also of the
Geneva Humanitarian Conventionsin regard to which the Swiss
Federal Council is the depositary. The practicein regard to
multilateral conventionsof which the United States of America
is depositary has equally been based on recognitionof the right
of a newly independent States to declare itself a parti to the
conventions on its own behalf. "(YILC, 1974, Vol. II, Part One,
p. 215.)
1 shall quote just one more sentence from the said Report of the
InternationalLaw Commission, and it reads: "The newly independent
State's right is rather to notify its own coiïsentto be considered as a
separateparty to the treaty. "
1 quoted this sentence because 1 believe that it will help us
understand the nature-and effects of the notification of succession done
by the Applicant. 1 would refer here yourattention to the relevant part
of the presentation of Professor Suy. Article 17 of the 1978 Vienna
Convention only proclaimsthe customaryrule born in the process of
decolonization.
The rules contained in Article 22 of the 1978 Vienna Convention also
express international customs. The relevant rules of Article 22 of the
1978 Vienna Convention relatedto the notificationof succession read:
"1. A notification of succession in respect ofa
multilateral treaty under Article 17 or 18 shall be made in
writing. 2. If the notification of succession is not signed by the
Head of Staw Head of Government or Minister for Foreign
Affairs, th&-representativeof the State communicatingit may be
called upon to prodilcefull powers.
3. Unless the t:reatyotherwise provides, the notification
of succession shall:
(al be tra.nsmittedby the newly independent State
to the depositary, or, if there is no depositary, to
the parties or the contractingStates;
(b) be considered to be made by the newly
independent Stateon the date on which it is received
by the depositaryor, if there is no depositary, on
the date on which it is received by al1 the parties
or, as the case may be, by al1 the contracting States.
5. Subject to the provisions of the treaty, the
notification of succession or the communicationmade in
connection therewithshall be considered as received by the
State for which it is intended only when thelatter State has
been informed by thedepositary."
In the Report ofthe InternationalLaw Commission on the work of its
twenty-sixthsession, 6 May-26 July 1974, it is, inter alia, said:
"An indicationof the practice of the Secretary-Generalin
the matter may be found in the letter which he addresses to
newly independentStates inquiring as to their intentions
concerning treatles of which he is the depositary. This letter
contains the following passage:
Under this practice, the new States generally acknowledge
themselves to be bound by such treaties through a forma1
notification addressed to the Secretary-General by the Head of
the State or Government or by the Minister for Foreign Affairs."
(YILC, 1974, Vol. II, Part One, p. 230.)
(c) Rules on notification of succession, barn in the process of
decolonization, have been used after the United Nations Conference on
Succession of States in respect of Treaties as general rules of
international customary law
With your permissicin,1 shall proceedto present thepractice of
States after the United Nations Conference on Succession of States in
respect of Treaties. As it is known, al1 States that emerged in the
territory of the former Soviet Union used exclusively accessionas themanner of entering multilateral treaties. Theyare Armenia, Azerbaijan,
-:-.!Yi-
Estonia, ~eor~ia,'~azakhstan,Pyrgyzstan, Latvia, Lithuania,Republic of
Moldova, Tajikistan, Turkmenistan and Uzbekistan. If we look at the last
United Nations publicationof Multilateral Treaties Deposited withthe
Secretary-General,Status as at 31 December 1994 (sT/LEG/SER.E/~~), we
shall see that al1 these States entered internationalconventions on
human rights and other multilateral treaties by way of accession. None
of them considered that it was bound by the rule of automatic succession
as provided by Article 34 of the 1978 Vienna Convention. No State
protested theattitude of the former SovietRepublics. On that account
we can conclude that there existsno legal consciousnessof the binding
of the exiçtence of this
force of the rule of automatic succession, i.e.,
rule as a customary rule. On the contrary, the practice described has '
confirmed the furthervalidity of the principle of clean slate.
In a letter dated 16 February 1993, to which a list of multilateral
treaties was added, that the Secretary-Generalreceived on
22 February 1993, the Government of the Czech Republic notifiedthat:
"In conformity with the valid principles of international
law and to the extent defined by it, the Czech Republic, as a
successor State tothe Czech and Slovak FederalRepublic,
considers itself bound, as of 1 January 1993, i.e., the date of
the dissolution of the Czech and Slovak FederalRepublic, by
multilateral international treaties to which the Czech and
Slovak Federal Republic was a party on that date, including
reservationsand declarations to their provisions made earlier
by the Czech and Slovak Federal Republic.
The Government of the Czech Republic has examined
multilateral treaties, the list of which is attached to this
letter. (The Government of the Czech Republic) considers to be
bound by these treaties as well as by al1 reservations and
declarations to them by virtue of succession as of
1 January 1993.
The Czech Republic, in accordance with the well-established
principles of internationallaw, recognizes signaturesmade by
the Czech and Slovak FederalRepublic in respect of al1 signed treaties as if they were made by itself." (Thebold type is
ours. ) -=..s
--. -
Subsequently, a 1ett.erdated 19 May 1993 and also accompaniedby a
list of multilateral treaties deposited with the Secretary-General,was
received by the Secretary-Generalon 28 May 1993, from the Government of
the Slovak Republic bywlnichit notified.itssuccession to treaties of
the predecessor State.
These letters were publishedon pages 8 and 9 of the United Nations
publication of Multilateral Treaties Deposited withthe
Secretary-General,Status as at 31 December 1994. These two States did
not succeed to al1 the treaties to which the predecessor Statehad been a
party. They had considered the treaties of the predecessor Stateand
decided to which to succeed. Thus, for instance, the SlovakRepublic did
not succeed to the International Conventionagainst Apartheidin Sports
of 10 December 1985, to which Czechoslovakia wasa party. The Czech
Republic didnot succeed to the Convention and Statute on the Freedom of
Transit to which Czechoslovakiawas a party (seeMultilateral Treaties
Deposited with the Secretary-Generalas at 31 December 1994, pp. 189,
989). Neither State suciceededto the International Coffee Agreement
(ibid.,pp. 704-714), Iciternational Sugar Agreement (ibid.,p. 715),
InternationalCocoa Agreement (ibid.,pp. 721, 730, 735, 762, 8081,
InternationalTin Agreement (ibid.,p. 733) and the InternationalNatural
Rubber Agreement (ibid.,p. 753). It can be concluded that these
two States did not consider that they becameparties to al1 the treaties
of the predecessor State automatically. Theyconsidered that they could
enter them by way ofsuccession and decide freely which of them to enter.
They did it by notifying its succession to chosen treaties. Accordingly,
they notified their successionsto each multilateral treaty separately,citing the names of-the treaties in a list enclosedto the statement of
--
succession. In.&ing so, they acted in conformitywith the rules
contained in Articles16, 17, 22 and 23 of the 1978 Vienna Convention.
Without discussing the question of whether the seceded Yugoslav
Republics obtainedindependentStatehood in conformity with the principle
of equality and self-determinationof peoples and when indeed they
obtained independence, 1 can Say that they behaved in themanner very
similar to the Czech and Slovak Republics. They notified their
successions to individual treaties of the predecessor State tothe
depositaries of multilateral treaties.
Slovenia sent its Note on 1 July 1992, which the Secretary-Generalof
the United Nations received on 6 July 1992 by which Slovenia informed him .
"that it considers itself boundby the treatieslisted below Iby
virtue of succession on the Socialist Federal Republic of
Yugoslavia in respect of the territory of the Repubiic of
Slovenia',with effect from 25 June 1991, the date on which
Slovenia assumed responsibilityfor its international relationstt
(UnitedNations, C.N.240.1992.Treaties, Depositary
Notification) .
A list of treaties is attached. The list does not includeal1
multilateral treaties to which the predecessor Stateis a Party. Thus,
Slovenia did not succeedto the Optional Protocol to the Vienna
Convention on Diplomatic Relations concerningAcquisition of Nationality,
done at Vienna on 18 April 1961 (seeMultilateralTreaties Depositedwith
the Secretary-General,Status as at 31 December 1994, p. 65),
International Conventionagainst Apartheidin Sports, adopted by the
General Assemblyof the United Nations on 10 December 1985 (ibid.,
p. 1891, Convention on Road Signs and Signals, concluded at Vienna on
8 Novernber1968 (ibid.,p. 568), convention on Consent to Marriage,
Minimum Age for Marriage and Registration of Marriages, openedforsignature at New Yorkon 10 December 1962 (ibid.,p. 674) and to some
.: -.
others. -- -
Slovenia accededon 16 July 1993 to the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatmentor Punishment,adopted by
the General Assemblyof the United Nations on 10 December 1984 (ibid.,
p. 177) although the predecessor Stateis a party to this Conventionso
that the conditions for successiondid exist. Slovenia accededto al1
treaties concludedunder the auspices of the Council of Europe to which
the predecessor Stateis a party (see Chart showing signaturesand
ratificationsof Conventions and Agreementsconcluded within the Council
of Europe) .
Croatia notified its;succession to a great many multilateral treaties
of the predecessor State, the depositary of which is the
Secretary-Generalof the UnitedNations. However, Croatia did not
succeed to some of these treaties. Thus, for instance, it did not
succeed to the Optional Protocol to the Vienna Convention on Diplomatic
Relations concerning the Compulsory Settlement of Disputes, done at
Vienna on 18 April 1961 (ibid.,p. 66), International Agreementfor the
Establishmentof the University for Peace, adopted by the
General Assembly of the 'UnitedNations on 5December 1980 (ibid.,p. 655)
or to the International ConventionAgainst the Taking of Hostages,
adopted by the General Assemblyof the UnitedNations on 17 December 1979
(ibid.,p. 688). Croatia accededto al1 treaties of the predecessor
State concluded withinthe Council of Europe (see Chart showing
signatures and ratificationsof Conventions and Agreements concluded
within the Council of Europe).
Macedonia behaved in the same marner. It notified succession to some
multilateral treaties of the predecessor State, the depositary of whichis the secretary-~eneralof the United Nations. However, Macedonia did
---.Y
not succeed to &me of these treaties. Thus, Macedonia did not succeed
to the International Conventionagainst Apartheid inSports, adopted by
the General Assembly of the United Nations on 10 December 1985 (ibid.,p.
189), Agreement for the Suppressionof the Circulationof Obscene
Publications,signed at Paris on 4 May 1910 and amended by the Protocol
signed at Lake Success, New York, on 4 May 1949 (ibid., p. 315) or the
International Conventionon the Harmonizationof Frontier Controls of
Goods, concluded at Geneva on 21 October 1982 (ibid.,p. 427) and some
others .
Macedonia acceded to the United Nations Conventionagainst Illicit
Traffic in Narcotic Drugs and PsychotropicSubstances,concluded at
Vienna on 20 December 1988 to which the predecessor State is a party
(ibid.,P. 281). It acceded to the treaties concludedwithin the Council
of Europe to which the predecessor State is a party (see Chart showing
signatures and ratificationsof Conventionsand Agreements concluded
within the Council of Europe).
The practice of Bosnia and Herzegovina was explained in the
PreliminaryObjections, submitted to the Court in June 1995, on pages 122
to 124.
In the meantime, certain changes haveoccurred. Bosnia and
Herzegovina accededto some Conventions concludedwithin the Council of
Europe to which the predecessor Statewas a party. Accordingly, it
should be noted that Bosnia and Herzegovina did not succeed to these
Conventions; it acceded to them. Thus, it acceded, for instance, to the
European Cultural Conventionon 29 December 1995, Convention for the
Protection of the ArchitecturalHeritage of Europe on 1 April 1995,
European Conventionon the Protection of the ArchaeologicalHeritage on30 March 1995 and the Anti-Doping Convention on 1 February 1995. Bosnia
-?c
and Herzegovina:accededto 16 Conventions concludedwithin the European
Council inwhich the predecessor State is a party (see Chart showing
signatures and ratificationsof Conventionsan2 Agreements concluded
within the Council of Europe).
Without prejudging in this way other relevantquestions, including
the legality of the acquisition of independentstatehood, as well as the
real date of the acquisition of independence,we can note that the former
Yugoslav Republics entered the majorityof internationaltreaties of the
predecessor State by virtue or successionor accession. They did not
enter some of these treaties at all. Accordingly, theydid not consider
to have been boundby mu.ltilatera1 treaties of the predecessor State or
by internationalconventionson human rights, nor did they consider that
they had entered them by automatic succession.
They saw successionas a
legal possibility of becoming the parties to the treaties of the
predecessor Stateand used it accordingly. It was exactly that they
behaved in accordance with the rules contained in Articles 16, 17, 22 and
23 of the 1978 Vienna Ccinvention
(d) The rule on non-retroactive effects of the notification of succession
Let me give a short account of how the InternationalLaw Commission
resolved the question of the retroactive effectof the notification of
succession. Prominent members of the InternationalLaw Commission
opposed the ideaof the retroactive effectof succession. Mr. Bedjaoui,
a member of the Commissi.on at that time, said:
"It followed that the effective application of a treaty
immediately after the creation of a State dependednot on a
customary rule, but on the expressed will of that State and of
the other States pa.rtiesto the treaty. Under those conditions,
there couldbe no presumption of continuity or retroactivity.
Personally, 1 am in favour of the principle of non-retroactivity
of treaties, as stated in Article 28 of the Vienna Convention. Retroactivity &uld, of course, be presumed, as an exception to
that principl~r,in the special case where a new State notifies
its succes~~onunder ArticLe 7. But uncertainty would persist
until the new State had expressed its will, and it might
ultimately refuse to consider itself bound by the treaty. 1
therefore hope theCommission will not introduce the concept of
retroactivity intothe draft. " (YILC, 1972, Vol. 1, p. 107,
paras. 21, 23.)
The retroactive effects of the Note of succession were opposed also
by Mr. Yasseen (see YILC, 1972, Vol. 1, p. 106, para. 4), Mr. Ushakov
(see YILC, 1974, Vol. 1, p. 242, para. 41), Mr. Hambro (see YILC, 1974,
Vol. 1, p. 242, para. 35), Sir Francis Vallat (see YILC, 1974, Vol. 1,
p. 43, para. 52, 53), Mr. Rossides (see YILC, 1972, vol. 1, p. 105,
para. 88) and Mr. Kearney (see YILC, 1972, Vol. 1, p. 105, para. 91).
In resolving this problem, the InternationalLaw Commission proposed
the following solutionin the 1972 Draft for Article 18:
"1. Unless a treaty otherwise provides or it is otherwise
agreed, a newly independent Statewhich makes a notification of
succession under Article 12 or 13 shall be considered a party
or, as the case may be, contracting Stateto the treaty:
(a) On its receiptby the depositary; or
(b) If there is no depositary, on its receipt by the
parties or, as the case maybe, contractingStates.
2. When under paragraph 1 a newly independent Stateis
considered a party to a treaty whichwas in force at the date of
the succession of States, the treaty is consideredas being in
force in respect of that State fromthe date of the succession
of States unless;
(a) The treaty otherwise provides;
(b) In the case of a treaty which falls under Article 12,
paragraph 3, a later date is agreed by al1 the parties;
(c) In the case of other treaties, the notification of
succession specifiesa later date.
3. . .Io(YILC, 1972, Vol. II, p. 269.)
Accordingly, the International Law Commission differentiated between
the date of the receipt of the notification of successionby thedepositary as the date wkiena new State becomes a party and the date of
-;I
succession as thk'date since when a treaty is inforce in respect of a
new State. States criticized the proposed solution £rom the point of
view of the non-acceptabi.lity of the retroactivityof the notification of
succession.
"The United Kingdom said that where a newly independent
State made a notification of succession some considerabletime
after independence, other Statesmight, in good faith, have
acted in the meantime on the assumption that the treaty was not
applicable betweenthem and the newly independent State. Should
the newly independent State insist upon the date of independence
as the effective date, the other States would presumably not be
open to allegations of breach for having failedto apply the
treaty in the meantime. This aspect of the question was not
dealt with in the Commission'sproposals ..." (YILC, 1974, Vol.
II, Part One, p. 56, para. 310.)
The United States Government, also criticizes the quoted proposa1 of
the InternationalLaw Commission referring to the problem of
retroactivity (YILC, 1974, Vol. II, Part 1, p. 56, para. 310).
Bearing inmind the observationsof the said States, the
InternationalLaw Commission redrafted the provisions of Article 18 of
the Draft in the way as present Article 23 of the 1978 Vienna Convention.
reads. Here is how the said rule contained at that time in Article 22 of
the Draft was explained inthe Report of the InternationalLaw Commission
on the work of its twenty-sixthsession 6 May - 26 July 1974
(Doc.A/9610/Rev. 1) . It, inter alia, reads:
"(7) The 1972 text of the article1provided that, while a
newly independent St:atewhich makes a notification of succession
to a treaty whichwas in force at the dateof the succession of
States would be conçidered a party to the treaty on the receipt
of the notification (formerparagraph 1), the treaty wouldbe
considered as being in force in respect of that newly
independent Statefrom the date of the succession of States
subject to certain çpecific exceptions(former paragraph 2). The
comments of delegations and Governments on Articles 12, 13 and
'~rticie 18 of the 1972 Ilraft.18 of the 1972-Draft called the attention of the Commission to a
number of proJk1emsthat would be created by these provisions.
... -
--
(8) Article 18 of the 1972 Draft would have given
retroactive effect to a notification of successionby a newly
independent Stateso that, even if the notification of
succession was delayed for a long period after thedate of the
succession of States, a multilateral treaty wouldas a general
rule be regarded as in force between that State and other
parties with effect£rom the date of the successionof States.
In this respect, other parties to the treaty wouldhave had no
choice, but the newly independentState would have been able to
choose a later date if the retroactive applicationof the treaty
was inconvenientfrom its point of view. At the present session,
several members of the Commission observedthat if this were the
rule it would create an impossible legal position for the States
parties to the treaty whichwould not know during the interim
period whether or not they were obliged to apply the treaty in
respect of the newly independentState. Such a State might make
a notification of succession years afterthe date of the
succession of States and, in these circumstances,a party to the
treaty might be held to be responsibleretroactively forbreach
of the treaty.
(9) In this connection, some members of the Commission
thought that there wasan inherent contradiction between
paragraphs 1 and 2 of Article 18 of the 1972 Draft because by
definition a party to a treaty means one for which the treatyis
in force and, according to paragraph 1, a newly independent
State would only become a party from the date of making of the
notification of succession while, according to paragraph 2, the
treaty wouldbe considered asin force in respectof the newly
independent State from the date of the succession of States.
Other members expressed theview that paragraph 1 did not
entirely accord withthe practice of the Secretary-General,who
normally regarded a newly independentState as a party to the
treaty from the date of the successionof States and not £rom
the date of the making of a notification of succession.
(10) In the light of such considerations,the Commission
concluded that Article 18 of the 1972 Draft should be redrafted
so as to provide for the element of continuity consistent with
the concept of a succession of States, bearing in mind the legal
nexus between a multilateral treaty and the territory of the
newly independent Stateat the date of succession. It decided
that this couldbe done by providing in principle that the newly
independentState making a notification of succession with
respect to a multilateral treaty should be regarded as a party
from the date of the succession of States.
(11) On the other hand, the Commissionconsidered that some
provisions shouldbe adopted to avoid the unsatisfactory
consequences whichwould result from givingretroactive effect
to the notification of succession so far as concerned the rights
and obligations under the treaty as between the newly independent tat antdethe parties to it... the Commission
concluded the the rnostsatisfactory solutionwould be to regard
the operat&n of the treaty as suspended betweenthe date of a
succession of a Stat:eand the date of the making of the
notification of succ~ession. The Commission consideredthat if
the States concernedwished to apply tne treaty during the
interim period this could normally be done by means of
provisional applicationin accordance withArticle 26 ..."
(YILC, 1974, Vol. IT, Part One, p. 235.)
The InternationalLaw Cornrnissiow nas in the position to resolvethe
conflict between the practice that the newly-independentStates
considered themselves bound by multilateraltreaties to which they
succeeded and the general rule on non-retroactivity. Even though it
sought a solution of this conflictin general legal principles, i.e., in
legal logic, the solution that was eventually found was rested alsoon
the internationalpractice of the provisional application of the treaties
of the predecessor State, initiated by the Note of Tanganyika from 1961
which was subsequentlyaccepted by a large number of countries. The
practice of the provisional application of treaties was contradictoryto
the idea of having multilateral treaties be applicable betweena
newly-independentState and other States Parties since the moment of
succession on the basis of the notification of succession. If they had
considered so, these Sta.teswould certainly not havenotified the
provisional application of treaties. The custornaryrule created by the
said practice is expressed in Article 27 of the 1978 Vienna Convention
which reads:
"1. If, at the date of the successionof States, a
multilateral treaty was in force in respect of the territory to
which the succession of States relates and the newly independent
State gives notice of its intention that thetreaty shouldbe
applied provisionallyin respect of its territory, that treaty
shall apply provisionallybetween the newly independentState
and any party which.expressly so agrees or by reason of its
conduct is to be consideredas having so agreed. Accordingly, the relevantrules of Article 23 of the 1978 Vienna
Convention relatLd to the effects of a notification of succession are
based on the general principleand they reflect the internationalcustom
They read :
"1. Unless the treaty otherwiseprovides or it is otherwise
agreed, a newly independent State whichmakes a notification of
succession under Article 17 or Article 18, paragraph 2, shall be
considered a party to the treaty £rom the date of the succession
of States or from the date of entry into force of the treaty,
whichever is the later date.
2. Nevertheless, the operation of the treaty shallbe
considered as suspended as between the newly independent State
and the other parties to the treaty until the dateof the making
of the notification of succession except in so far as that
treaty may be applied provisionallyin accordance with Article
27 or as may be otherwise agreed.
The notification of succession produces legal effects in conformity
with the rules contained in Article 23 of the Vienna Convention.
Regardless of the moment from whichthe successor State considers itself
bound with respect to a treaty, the treaty is inapplicablebetween the
successor Stateand other Parties to that treaty before thesuccessor
State notifies its succession to the depositary of the treaty.
Internationalpractice, as well as the basic premises of the law of
treaties are opposed to the retroactive effect of the notification of
succession. The internationalconventions on human rights are no
exception
(e) The Applicant has not proved that a rule of automatic succession
existe as an international custom or as a rule binding on the Parties
in dispute
Yesterday, Professor Suy showed that the Applicanthad not proved the
existence of this rule as an internationalcustom. On this occasion, 1
would like to refer only tovery relevant points In paragraphs 3-.-4t:o3.51 of its Statement, the Applicant refersto
-=.'I
the submission 6k 'thereport of-the Republic of Bosnia and Herzegovina to
the Human Rights Committee, at the request of the Committee inthe period
before it notified its siiccessionto the Covenant on Civil and Political
Rights. It was an exception. Other Statesdid not respond to the same
request of the Human Rights Committee. Thus, in paragraph 5, of the
Report of the Secretary-General "Successionof States in respect of
International Human Righi-sTreatiesl'(E/CN.4/1995/80) of 28 November
"At its forty-seventh session (March/April19931, the
Committee, stated that al1 the people within the territory of a
former State party to the Covenant, remain entitled to the
guarantees of the Covenant and that, in particular, Armenia,
Georgia, Kazakhstan, Kyrgyzstan, Tajikistan, the Former Yugoslav
Republic of Macedonia, Turkmenistan and Uzbekistan were-bound by
their obligationsuriderthe Covenant as from the date of their
independence. Consequently, it noted that reports under Article
40 became due and rebquested,in notes verbale dated 28 May 1992
addressed to the Miriistersfor Foreign Affairs of those States,
that such reports be submitted to it. No reports have been sent
to the Committee in reply to that request. However, since the
closure of the Commi.ttee'sforty-seventh session, Armenia and
Georgia have acceded to the Covenant, and the Former Yugoslav
Republic of Macedonia have succeeded to it." (The bold type is
ours.)
It is clear that the majority of the new successor States do not
accept the position of the experts in the Human Rights Committee.
There exists no agreement betweenthe Parties in dispute on the
application of the rule of automatic succession. The Applicant contends
that there existsan agreement between the secessionist Republics and the
Federal Republic ofYugoçlavia on the application of the rule of
automatic succession. As evidence to that effect, in paragraph 3.6.3 of
its Statement (p.80) the Applicant presenteda sentence from OpinionNo.
9 of the Badinter Commisçion which reads:
"The succession of States is governed by the principles of
international law enibodiedin the Vienna Convention of 28 August 1978-;nd 8 April 1983, which al1 Republics have agreed
should be twoundation for discussion betweenthem."
-- . -
There exists no agreement between the parties in dispute on the
application of the rule of automatic succession.The quoted sentence
cannot be taken as appropriate evidenceof such an agreement, either
After all, the sentence refers tothe principleç.of.intemationa1 law
embodied in the 1978 Vienna Convention and not to the application of the
rules contained in al1 the Articles of the Convention. The rule contained
in Article 34of the 1978 Viema Convention is the rule de lege ferenda,
and not theprinciple of internationallaw. As 1 have shown, the 1978
Vienna Convention contains two principlesof internationallaw, the'clean
slate principle and the rule of non-retroactivityof notification of
succession. Accordingly,if there does exist an agreement on.the
application of the principles of internationallaw embodied in the 1978
Vienna Convention, only the said two principles are applicable tothe
case.
(f) The Applicant has denied the existence of the rule of automatic
succeesion and its applicability between the Partiesin dispute
Mr. President, the secessionistYugoslav Republics,
Bosnia-Herzegovinaincluded, denied the existenceof the rule of
automatic succession and its validity betweenthe Federal Republic of
Yugoslavia andthemselves.
At the 13th Meeting of the Commission on Human Rights, Mr. Bijedie,
Permanent Representativeof the Republic of Bosnia-Herzegovinato the
United Nations Office at Geneva, criticized:
"the Secretary-Generallsreport on the succession of States in
respect of international human rights treaties (E/CN.
4/1995/80), which listed the dates of receipt of instrumentsof
accession or ratificationof human rights treaties by States
successor to, inter alia, the former Yugoslaviashowed the dates
of receipt of such instruments £rom the former SocialistFederal
Republic of Yugoslavia as those.relating to the Federal Republic of Yugoslavia merbfiaand Montenegro) , listed as
uYugoslavia!_~F.. Hiç Government stronglyobjected to the claim
of the Fede'k-1 Republic of-Yugoslavia (Serbia andMontenegro) to
the personality of the former SocialistFederal Republic of
Yugoslavia, since none of the States emerging therefrom had been
accorded the right of automatic succession ... (thebold type is
ours) it had failed to submit notification of its succession to
the multilateral trc-atiesto which the former SocialistFederal
Republic of YugoslaTvia was a party, a procedure duly complied
with by Bosnia-Herzegovina;Croatia, Slovenia and the Former
Yugoslav Republicof Macedonia ...Existing inaccuracies in the
United Nations docuinentsshould be rectified by insertingthe
words "the formera1 before llYugoslaviaw in al1 cases where the
Socialist FederalRapublic of Yugoslavia was meant, unless and
until the Federal Republic of Yugoslavia (Serbia and Montenegro)
completed the succe:ssionprocedure. A letter to that effect was
being sent to the Secretary-Generalof the United Nations for
distribution as an officia1 document." (Cited from the United
Nations document E/iZN.4/1995/SR.13, of 14 February 1995, p. 17,
paras. 79, 80 and 81.)
On the same count, the Representativeof Slovenia sent a letter to
the Secretary-Generalof the United Nations, published as United Nations
document E/CN.4/1995/122of 7 February 1995, in which it is, inter alia,
"Sloveniawishes to point out that "Yugoslavia"ceased to
exist and, consequently,ceased to be a party to the human
rights treaties.Al1 of its successor States, including "Federal
Republic of Yugoslavia (Serbiaand Montenegro)",are new States
and can be considered partiesto the treaties only on the basis
of the notification of succession." (Thebold type isours.)
The Permanent Representativeof the Former YugoslavRepublic of
Macedonia wrote in comé:ctionwith the same matter, denying the existence
of any legal basis for considering the Federal Republicof Yugoslavia the
automatic successor in the international treaties of the Socialist
Federal Republicof Yugoslavia. His letter was published as United
Nations document A/50/78, E/1995/11 of 2 February 1995.
A letter to the Secretary-Generalof the United Nations was extended
also by the Permanent Representativeof the Republic of Croatia, in
which, inter alia, it said: "In this Grise, the representativesof the Federal Republic
of Yugoslava.~(Serbiaand Montenegro) have been prevented from
participat&g in international meetings and conferencesof
States parties tomultilateral treaties in respect of which the
Secretary-Generalacts as depositary ... as the Federal Republic
of Yugoslavia (Serbia and Montenegro) had not acted according to
international rules on the succession of States. Namely, the
Federal Republic of Yugoslavia (Serbia and Montenegro) has
repeatedly tried to participate in international forums as a
State party without having notified.its succession.^ (Thebold
type is ours.)
This letter was published as United Nations document A/50/75,
~/1995/10 of 31 January 1995.
Accordingly, the position of the said States is that the Federal
Republic of Yugoslavia is a new successor State, just as they are, and
that it is necessary that it should notify succession tohuman rights
conventions to be a party to them. As it is well known, the-Federal
Republic of Yugoslavia does not consider itself as a new State. 1 have
presented tne said objections of the former YugoslavRepublics only to
show that neither of them, including the Applicant, believesthat the
rule of automatic succession reallyexists and that it is binding on them
and the Federal Republic of Yugoslavia.
(g) Accordingly, the succession of the Applicant to the Genocide
Convention may be regulated by the customary rules reflected in
Articles 17, 22 and 23 of the 1978 Vienna Convention
Mr. President and distinguishedMernbersof the Court, may 1 recall
that in paragraph 92 of the Application it is said:
"This effective date for the Notice of Succession is in
accordance with the normal rules of customary international law
relating to State succession withrespect to treaties. These
rules have been codified in Articles 17, 22, 23 and 34, among
others, of the Vienna Convention on Succession of States in
respect of Treaties of 23 August 1978. The former Yugoslavia
signed this Viema Convention on 6 February 1979, and deposited
an instrument of ratification for this Viema Convention on
28 April 1980. Therefore, Bosnia and Herzegovina has been a
Party to the Genocide Convention (without any reservation) from
6 March 1992." (ApplicationInstitutingProceedings, filed to
the Registrar of the Court on 20 March 1993, p. 110.) Provided the Court finds that the Applicant isa party to the
-:-*
Genocide convent-;& and that thecustomary rules, reserved for newly
independentStates, born in the process of decolonization,have becorne
applicable to al1 new Stiates,we agree that rules contained in Articles
17, 22 and 23 of the 19713Vienna Convention are applicable tothe
relations betweenthe Federal Republic ofYugoslavia and the Applicant
State. In this case, the Genocide Conventionwas not operative between
the Parties before 29 December 1992
Mr. President, this statementconcludes the presentationof Our
pleadings and 1 thank y011and the Members ofthe Court for your
attention. With your pe:rmission,1 vote to submit Our final submissions
at the end of the second round. Thank you.
The PRESIDENT: 1 tkiankvery much the Agent, H.E. Mr. Rodoljub Etinski,
for his staternent. That concludes the oral arguments of Yugoslavia. The
Court will now adjourn and will resumeits session tomorrow, Wednesday
1 May 1996 at 10 a.m., to hear the oral argumentsof Bosnia-Herzegovina.
The Court rose at 12.20 p.m.
Public sitting held on Tuesday 30 April 1996, at 10 a.m., at the Peace Palace, President Bedjaoui presiding