0041 22 738.<:1750 P.01
07-r:lLIG-'~'3 13: 52 HOTEL PRESIDENT GE~lEIJE 0~ -.(.}- a-,
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To the Judges of the International Court of Justice
The Peace Palace
The Hague
The Netherlands
:J:'August 1993
Your Excellencies:
I hereby supplement, support, substantiate and amend:
(1} Our Application of 20 March 1993 (The Application);
(2) Our Second Request for an Indication of Provisional Measures of 27
July 1993 ( The Second Request);
(3) Our outstanding Request for an immediate hearing of the Second Re~Jest
by the Court; and
(4) Our Request made on Wednesday 4 August 1993, for an immediate OrdeJ:
without hearing pursuant to our Second Request, in accordance with Art:Lcle
75(1) of the Rules of the International Court of Justice;
by bringing to the attention of the Court the following arguments and
documents in support and substantiation thereof:
1. In my communication to the Court of 6 August 1993--which was intended
to be included in the case file--I attached and incorporated therein a
letter by President Izetbegovic to the ICFY Co-chairmen of 1 August 1993,
which constituted an official "objection" to (that is, rejection of)
Article 1 of the so-called Owen-Stoltenberg Plan. This.Plan calls for the
Republic of Bosnia and Herzegovina--a Member state of the United Nations
Organization--to be carved up into three independant states and for us to
lose our U.N. Membership.In that letter of objection, President
Izetbegovic indicated that he had lodged this objection to Article 1 on
the advice of his legal advisers. In this regard, President Izetbegovic
was acting on the basis of a formal Opinion Letter that I provided to him
on the Owen-Stoltenberg Plan. This Opinion Letter is entitled "Analysis
of Second Internal Draft of 29 July 1993." The Draft referred to was that
was signedn-Stand dated by me at 8:00 a.m.pinion on 30 July is1993 befores it lwas, and
forwarded to President Izetbegovic. I hereby deposit this Opinion Lett.er
with the Court as part of this case and in arder to supplement, support.,
substantiate and amend points (1), (2), (3), and (4) above.
2. This Opinion Letter was followed by a letter from President
Izetbegovic to the ICFY Co-chairmen later that day on 30 July 1993,in
which he expressed his reservation to Article 1 in the strongest terms
possible. Attached to this communication is a copy of that letter which
is submitted to the Court in support and substantiation of (1), (2), (3)
and (4) above.
3. In this letter, President Izetbegovic suggested that the question cf
the proper interpretation of Article 1 should be resolved by legal
experts. Therefore, pursuant to his instructions, I met with Mr. Paul
Szass, the Legal Adviser to the ICFY Co-chairmen, at the Palais des
thisoncommunicationnext is a "Memorandum of Conversationnd 11.011aon those Atdiscussions
of the same date, that has been signed by me and three ether witnesses who
were mernbers of our legal team at the Palais where the negotiations are
/ •. ;- LXi-\• 1 11}/' !" \)
....'-'-.,, - ____. ,/ 1 ,_;'07-AUG-1993 15:53 HOTEL PRESIDENT GENEUE 0CJ4122 73E:4750 P.02
taking place. I hereby submit this Memorandum to the Court in support and
substantiation of (1), (2), (3), and (4) above. As you can see from
reading the Memorandum, Mr. Szass confirmed to us that he had drafted the
Owen-Stoltenberg Plan on instructions from the Co-chairmen to carve up the
Republic of Bosnia and Herzegovina into three independant states and to
deprive us of our U.N. Mernbership. Pursuant to instructions I had received
possible,oreiand tenderedter,to Mr. Szassed ouriscounter~offe in taercopy of which isrms
attached to the Memorandum and incorporated here by reference.
4. Later that same day, the ICFY Co-chairmen sent President rzetbegovic a
letter dated 31 July 1993, stating that there would be no continuity
problem for us at the United Nations under the Owen-Stoltenberg Plan .. ~
copy of their letter is attached to this communication. Their assuran=e
directly contradicted what their Legal Adviser bad told us earlier that
same day, as indicated in the Memorandum.
5. Therefore, acting upon my advice as counsel, President Izetbegovic
sent his letter dated 1 August 1993 to the ICFY Co-chairmen that
consituted an official "objection" to, that is rejection of, Article 1,
and tendered our counter-offer under his name. Additional copies of th·ese
reference.nts They are offered to here to the Courton in supportrpoanded here by
substantiation of (1), (2), (3) and {4) above.
6. Attached to this communication is my let ter to the Court of 6 Augu:st
1993 transmitting the above two documents and expressing my formal leg.~l
opinion as to their significance under public international law. This
letter is submitted to the Court in support and substantiation of (1),
(2), (3), and ( 4) above .
7. So far, we have not yet received a formal response from the ICFY
Co-Chairmen to President Izetbegovic's letter of 1 August, which is not in
accordance with normal diplomatie protocol. Indeed, Mr. Owen publicly
indicated yesterday that he was still insisting upon the Owen-Stoltenb1~rg
Plan as originally drafted, including the rejected Article 1.
the legal, equivalentiousto what HitlerOwen-presentedrg to Czechoslovakiaktat at Mun:ichis
in 1938. The Plan is based upon the assumption that the Republic of Bo:mia
and Herzegovina--a Member State of the United Nations--will be carved 11p
into three independent states and deprived of our U.N. Membership. We have
repeatedly and most emphatically rejected this proposal to sign our 0~1
death certificate as a sovereign nation state and Member of the United
Nations. Yet enormous pressure is still being brought to bear upon us l'oth
here at U.N. Headquarters in Geneva and upon our capital in Sarajevo by
means of the illegal threat and use of force, coercion, duress,
compulsion, etc. For example, as you can see from the Memorandum, Mr.
Szass personally threatened me on behalf of the Republic of Bosnia and
Herzegovina at the Palais des Nations by saying that if we did not acc4~pt
the Owen-Stoltenberg Plan, "The Security Council will tell you to go to
hell." Mr. Szass had already been informed by me that I was Attorney o::
the Internationall Courtnt of Justiceubliand was speaking ato him in that before
capacity and at the instructions of President rzetbegovic and the Foreign
Minister. Yet, he threatened me and the Republic of Bosnia and Herzegovina
anyway, and in U.N. Headquaters at that. This should provide the Court
with sorne idea of the threats, duress and compulsion that is currently
being applied to us here in Geneva to "accept" the Owen-Stoltenberg Plan.'07-AUG-1'3'33 16:12
I respectfully request the Court to take judicial notice of the savage
military attacks currently being perpetrated by the the Respondent and its
the owen-Stoltenbergur capPlan. Sarajevo, in order to get us to "assent" tc,
9. Therefore, we most respectfully request the Court to grant immediat.ely
all of the relief specified in· (1), (2), (3), and (4) abov.e and, in
particular but not limited to, the ten measures of provisional protection
set forth in our Second Request as well as all of the measures proprio
motu suggested therein. Under these horrendous circumstances in Geneva
and Sarajevo, we also respectfully ask the Court to reconsider the six
provisional measures of protection set forth in our first Request to that
effect of 20 March 1993.
respectfully comappreciates receivingemsan immediate written confirmation of the
receipt of this communication, together with an itemized list of the
attachments. I want to make it very clear that this communication and
these documents are intended to be part of the file of our case against
the rump Yugoslavia (Serbia and Montenegro) for genocide against the
Republic of Bosnia and Herzegovina.
11. In the future, I would appreciate receivin9 an immediate written
confirmation from the Registry of all letters and documents that I
communicate to the Court or to the Registry, and an indication that all
such documents and letters havè been entered into the file of our case for
genocide against the rump Yugoslavia (Serbia and Montenegro).
Please accept, Excellencies, the assurance of my highest consideration.
Francis A. Boyle
Professer of International Law
General Agent for the Republic of Bosnia and Herzegovina before the
The President Hotel of Justice
Geneva, Switzerland
.ttachments.
1 0041 22 7384750 P.03
07-RUG-1993 15:55 HOTEL PRESI DENT Ga,JEIJE
4o
Analysis of Second Internal Draft of 29 July 1993
by Professer Francis A. Boyle
Title: This title can be construed to constit6Ee an international
agreement or treaty among three independent republics under public
international law, each with their own independent legal personality;
instead of as a constitution for a federal state. Under the Vienna
Convention on the Law of Treaties, the name or title is irrelevant. This
title is consistent with the Owen-Stoltenberg "improvement" to the
Tudjman- Milosevic plan, giving all three republics access to the World
Court. The only way that can be done is if each republic is an independent
state in its own right, which would imply the dissolution of the Republic
of Bosnia and Herzegovina as known today and certainly pave the way for
the termination of Bosnia's UN membership.
and Herzegovina" is worse than th"The UnitedThe Republics of Rof Bosnia andBosnia
Herzegovina". So what they gave Bosnia in the title of the Agreement with
the word "constitutional", they took away from Bosnia by substituting
"United Republics" by "Union of Republics". Certainly Bosnia should ask
for a "Constitution of the United States of Bosnia and Herzegovina" like
the Constitution of the United States of America.
Article 1
This clearly calls for the creation of a "Union" of three independent
the "Unitedder Republics"onalunderlawinternationalion olaw. The former seems to bi~n
modelled on the Commonwealth of Independent States (CIS), which does not
legally continue the old Soviet Union that was dissolved. Hence, the
Republic of Bosnia and Herzegovina would be dissolved into three
independent republics like the CIS states which are all independent states
and UN members.
The use of the word "peoples" is quite dangerous because it means they all
have a right to self-determination under the UN Charter; therefore to
independent statehood; and therefore each to independent UNmembership
like the crs states. In theory then Bosnia m1ght lose its UNmembership
automatically and have to re-apply for admission, which will never happen.
determinesecUNmembershipce meitself.hinRather,nd the UNcouldng. very wella decidet that
like the CIS states, the three "republics" must all apply for membership.
I doubt the UN will take the position that the "t-iuslim state" is the
successor in law to the Republic of Eosnia and Herzegovina at the UN. The
UNdid permit Russia to succeed to the Soviet seat at the UN, but not as a
matter of law but power that the US consented to. Legally, Russia should
have had to re-apply. This is the only example of such invalid and flawed
succession that I know of in UNhistory. I doubt the Great Powers will do
for Bosnia what they did for Russia. Ar.à the British will have a veto to
prevent Bosnia's re-admission to the UN.
internationall tlaw as explained havabove, then they sebecome entitledn tounder
exercise this "right" by deciding to join Croatia and Serbia at any time
and thus leave the so-called Union. So the world ~culd have a Greater
Serbia and a Greater Croatia. Then the "Muslim state" would quickly be
eliminated. By comparison, even the Badinter Arbitration Commission has
1 HOTELPRESIDENT GENE!JE 0041 22 7384''50 P.04
07-RUG-1993 15:55
ruled that Serbs living in the Republic of Bosriia and Herzegovina have no
right to join Serbia; nor do the Croats have a right to join Croatia. Sc
here the proposal is giving Serbs and Croats in Bosnia and Herzegovina. a
potential right to self -determination that was denied to them by Badir:.ter.
Article 2
In ether words there is not now a flag and emblem for the Union because
such a "state" does not exist. The Parliament will never come into
existence. And there will never be the 80% vote. So there will never te a
flag and emblem and thus never be one state. Rather, there will be
produced three independant states under international law.
Article 3
(a) In other words there are no citizens of this ''Uni6n". Hence, there is
no state because a state must have citizens. This law will never be
adopted, so the union will never have citizens and thus never constitute a
state.
{b) This does not solve the above problem. People might be "entitled" tc
become a citizen, b~t that means they are not citizens now. Also, they can
not be forced to become citizens under the Universal Declaration of Human
Rights. So without fixed citizens now there is no state. Also. this simply
opens the way to more "ethnie cleansing".
·{c) Does not mean much one way or the ether at this point.
{d) This gives the whole game away. Under international law only
independent states have a right to determine who their citizens are. H~nce
the three republics will be independant states.
Article 4
Sc the three Republics are demilitarised. But if the Croats in Bosnia and
Herzegovina join Croatia and the Serbs in Bosnia and Herzegovina join
Serbia, then only the Muslim state will remain dernilitarised. That will
make it easy for them to destroy the Bosnians. !ndeed, "the Bosnians will
then be exterminated like the Jews without much of a fight. At least today
the Bosnians are fighting. Also if Bosnians sign this Agreement Bosnia
will have legitimised to gand consentedthe itc the arms embargoargo. , which BosniaBosnihas
never done. In the United States this will mean the end of the Dole-Luqar
bill to arm Bosnia.
II. The Constituent Republics and Their Responsibilities
Article
self-determination, Yes, bthenf the Serbs arin Bosnia andeople~e=zegovinaave can join of
Greater Serbia; the Croats in Bosnia and Herzegovina can join Greater
.;z HOTEL PRESIDENT GE~lEIJE 0041 22 7384?50 P.05
07-AUG-1993 15:57
Croatia; and they as "peoples" can claim that this exercise of the right
of self-determination under international law and the UN Charter takes
priority over this "Agreement". Indeed, this Agreement only seems to deal
with the boundaries among the three republics themselves. There is no
enforcible prohibition on any one or two of these republics joining
another state so long as it keeps its specified boundaries. Hence the:re is
produced a Greater Serbia, a Greater Croatia (neither of which will b=
demilitarised) and a demilitarised Muslim state that will quickly be
destroyed and extinguished. And Bosnia will have basically consented ~o
the process of its own destruction.
(b) Normally, a boundary comission is set up to function among sovere;Lgn
states as a creature of international law. Having the UN Secretary General
appoint all five persons completely internationalises the entire procE~ss.
This is even worse than how three independent states would do it normally:
they would each appoint one member; then the Secretary General would
appoint the other two. Here the UN Secretary General literally appoints
all five as if Bosnia is sorne ward of the UN instead of a sovereign mE!mber
state of the UN.
(c) This language is ridiculous. It is not a legally binding right or
regime of access to anything. The language "shall be vested" means
nothing. This is a term from the Anglo-American law of real property
whereby title to land is "vested" in someone. It appears that the
protection here will be meaningless because the republics will have
"jurisdiction" over this land which will be in their "territory". That is
what sovereignity is all about. If the Union of Republics never gets
organized, then nothing will "vest" and thus there will be no access by
citizens to these locations. This language is completely inadequate here.
(d) This does not help Bosnia. The same is tru~ for the EEC. They are all
independent states and UN members.
Article 2
(a) If each republic has its own constitution, then they are independent
states. As explained above, this Agreement is not a Constitution but
arguably an Agreement among three peoples with respective rights of
self-determination under international law. Again the title used the WJrds
"Constitutional Agreement" which can mean a treaty; not a "constitutio:1".
(b) Only independent states have their elections supervised by the UN and
the Chapter 8 regional arrangement such as the EEC. So here each repub.lic
is treated like a separate independent state.
Article 3
This means that the governments of the three republics are real
governrnents with real powers and functions. Hence, the next requirernen1:
for an independent state being an effective government will be fulfillE~d
here. So this Agreement would be creating the independent ?tates with
self-determination, citizens, governments and ter=itories. The "Union"
would mean nothing more than a CIS like system that exists only on paper
and with occasional meetings.
Article 4
:s. 0041 22 7384750 P.06
07-RUG-1993 15:58 HOTEL PRESIDENT GEt'--lEIJE
·.
Here the Agreement would be effectively g1v1n~de facto diplomatie
recognition to the governments of the three states among themselves.
III. The common institutions etc.
Article 1
(b) like the CIS
(c) In ether words, nothing can be done. All powers and decisions will
reside in and be made by the three republics.
It is not even clear that the Union will have any separate international
legal personality apart from those of its three ~onstituent members. So
the head of state of nothing will be nothing. Just a title.
Article 2
(a) The head of government of a CIS like structure means nothing. All
legal and political power is in the hands of the republics.
(b) ditto the Fore1gn Minister
1
(d) ditto the Cabinet
Notice the cabinet only deals with "policies" not "powers" concerning
foreign affairs, international trade, common institutions. So the cabinet
can draft position papers. But that is about it. The last phrase here
means little or nothing at all because it was made quite clear that thE~
Union does not have general jurisdiction and power, which reside in the
republics. Hence, the Union Parliament can only adopt laws in those very
few areas in which it has been given competence, which so far are only
these three areas. So this "specify by law" means nothing.
Article 3
(a) ·Parliament of the Union. So what?
mentionedas above.ibleSo why botherence"to have such a Parliament.y the tYou only need a
President to do these three tasks. So this is a Parliament which will have
nothing to do. It will never meet. There is no reason for anyone to become
a member. Indeed, if the Serb and Croat republics refuse to elect the 56
members respectively there will never be the Union Parliament coming into
existence. And with only 56 members from the Muslim state, it can not
adopt any laws.
Article 4 Courts
(ii) Once again, this is an international dispute settlement mechanism
that is applicable only to sovereign nation states. The World Court jud9es
would have nothing to do with this.
(iii) Once again, the Court of Human Rights sounds like an international
y. 0041 22 7384'750 P.07
07-RUG-1993 15:59 HOTEL PRESIDENT GENEUE
court among 3 states.
Article 5
And what if the Union Parliament never cornes into existence because the
Serb and Croat republics refuse to elect their 56 members each?
IV. International relations
Article
The Union can always apply for membership. But'r doubt any of these
organisations would accept the Union. And the Republic of Bosnia and
Herzegovina would lese the memberships it already has. Also, even the
decision to apply is subject to the veto of the- other two. So this means
nothing.
Notice that the 3 republics are expressly given the right to join any
international organisations - just like states. Just like the crs. This
"not be consistent" language means nothing beca:use there is no mechanism
to determine "interests".
Article 2
(a) This is the nub of the problem here. This is an extremely dangerous
provision. The moment this Agreemnt cornes into force, the Union becomes
the successor in law to the Republic of Bosnia and Herzegovina, which
would go out of business as an independent state. Hence, the Republic ~f
Bosnia and Herzegovina could automatically lose its membership in the UN
and all other international organisations and all its'rights.under current
treaties such as the Genocide Convention and the Geneva Conventions. B~t
neither the UN nor these ether international organisations nor the
contracting parties to any of these treaties would be obliged to accept
the Union as the successor in law to Bosnia and Herzegovina. Rather, a
separate decision would have to be made at the UN and by these
international organisations and the contracting states to do this. I doubt
9ut itselfeveout of business basicas a, sove~eigngninnationhisstateeemfor good.sniBosniaLL
will lose what it alreaày has for nothing in return.
(b) This means nothing because the Parliament will never come into
existence. And it will never get the 70%. This is meaningless. These
conditions will never be fulfilled. The Union will never have any role to
play in international agreements.
(c) This protection is meaningless because it is so vague. It does not
prohibit the Serb state and the Croat state from joining Greater Serbia
and Greater Croatia pursuant to the right of self-determination.
V. Human Rights
Article
These guarantees are only on paper. There are no meaningful mechanisms to
carry them out. They will protect no one. The Serbs and Croats will sirr.ply07-AUG-19'33 16:00 HOTEL PRESI IHH GE~lEIJE 0041 22 7384750 P.08
.'.
ignore them.
Article 2
Pious nonsense.
Article 3
This will never happen for reasons previously explained.
Article 4
Bosnia already has UNPROFOR there. This will be ùsed as an excuse to
withdraw UNPROFOR,which is supposed to be a peacekeeping force.
\rticle 5
(a) Pious nonsense. The Palestinians were promised the same by the UN
General Assembly itself 45 years ago. ~ere the UN is making no promises.
This would be even WORSEthan what happened to Palestinians in 1947.
(b} For reasons already explained, there will be no Union Parliament and
thus no such laws.
Article 6
Whoappoints these ombudsmen? The law will never be adopted by a
non-existent Parliament.
VI. Finances
The budget will be minimal because the common institutions will never come
into existence. Nor will the Parliament. There will be no valid
international obligations here. There will never-be a 70% majority.
(b) This means nothing because there will never be a first budget. So
'lat?
Article 2
(a) There will never be a first-budget so this means nothing.
(b) But the Union Parliament will never meet, let alone pass these laws.
It will have no source of income. Hence, it will be on paper only.
VII. The Constitutional Agreement
Article
(a) This means nothing. It will never happen.
(b) So what?
0. HOTEL PRESIDENT GENEUE 0041 22 7384'?50 P.09
07-AUG-19'33 16: 01
·~
·~.
Article 2
(a) But if the three people have a right of self-determination, ~ho is
going to stop them from ex:ercising it? Certainly not the Security Council.
They have not enforced any of their own resolutions. The Security Com1cil
is under no obligation to enforce this agreement.
(b) Ditto here
Article 3
Arguably this is "Approved" the moment it is signed and dated by•the three
leaders - Boban, Karadzic and Izetbegovic. Hence, Bosnia arguably could
put itself out of business as the sovereign state of Bosnia and .
is what they aallawant!embThe Bosnians UNwillmothen be treated imeven worse thenis
the Palestinians - - like the Kurds.
Conclusion: The Agreement is not worth paper it.is written on - ~ a mere
"scrap of paper". In my professional opinion, the Republic of Bosnia and
Herzegovina must never sign an Agreement such as this.
r/l{L 4.# ~ ~· .
Francis A. Boyle
Professer of International Law
President Hotel, Geneva
30 July 1993
7·07-AUG-1993 16:02 HOTELPRESIDENT GENElJE 0041 22 7384?50 F'.10
''!~{Y
R.EPUBUC OF BOSN'L:\.AND HER.ZEGQVINA.'
PRESIDE'NCY
Lord David owen and Mt Thorwald stoltenberg
ICFY Co-Chairmen
Sirs,
Yesterday I gave my preliln.ina:ry approval of the. draft on
Constitutional Agreement on the Union of Repu.blics of B·::>snia and
Herzegovina. My approval was given ûpon your statement that the.
.· Agreeme-nt does not question the status of state for future Union
and thereof· its membership in the OUN.
However, I have been warned this morning by ex!;)erts in
international law that Article 1. ~of the Agreement, a.s it is,
leaves doubts re la ting to _,the legal· status of· ·the Union of the
Republics of Bosnia and Herzegovina.· The· ariswer.to the question
whether the Union will have the status of a state may bring about
substantial consequences, particular-ly in regard of the status
of the state and legal continuity of the ·republics of B··H and the
international and legal personality of the Union and its
membership in the OUN and other international organizc:.tions.
Therefore I have to insi~~ upon and unambiguous answer to this
question. For these reasons I suggéSt. that either the cpinion of
board of your and my experts teams be obtained or that expertise
by internationally recognized authorities or institutio:::ts in this
field be provided.
I have to inform you that until I. receive the answer I remain
reserved regarding the wording of the Article 1.. of the
Constitutional Agreement and that I shall propose the rephrasing
of the mentioned article.
I would like to express my commitment to continuing negc1tiations.
But I consider it necessary that, W'hile the negotiations on other
details of the Agreement are proceeding, the ambiguity on the
above matter must be resolved.
Yours sincerely,
Geneva, July s 1993.
PHONE! 38 71 61 03 40; 66 49 41; 66 48 9fax66 49.4207-RUG-1993 16:03 HOTEL PRESIDENT GEt,lEIJE 0041 22 7384?50 P.11
MEMORANDUM OF CONVERSATION
PALAIS DES NATIONS
GENEVA
JULY 31ST 1993
Present : Dr. Paul Szass, Prof.Francis Boyle, Dr. Kasim Trnika,
Prof. Lamija Tanovic, Dje~ana Campara, Katharine Kanter
(rapporteur)
This a brief summary of personal notes taken by one: of the
participants who is not a stenographer. All quetes are
paraphrases.
Discussion begins
Bosnia's legal advisors : Concerning the message of this morning
of the President of BiH to owen : he wants to know whethe!r or not
the union is in fact intended to be s~ate, and if not, then what
?
Dr. Szass : There were so many disaqreements, that.we wanted ta
avoid using certain words and expressions, like that of State.
But I do want ta make it clear that""the Union is astate as la
member of the UN. We will make sure about that, we just tried ta
find a way around the difficulty without using the word.
Objections from Bosnia's legal advisors on the wordin9, which
throws up into the air the continuity of the Bosnian st:ate.
Prof. Boyle : We want to do business. But we cannat throw away
our UN membersh~p .f we sign this Article 1 as it is, we have
thrown it away. This article cannat be accepted as_it i.s.
Dr. szass : .Well I admit there is a problem with the wording as
to the question of the continuity of statehoo_d. That will have
to be figured out. Owen admits there is a disagreement over that.
Whereas your President says there is continuity.
Prof. Boyle : May I make it clear that I am not here representing
a PARTY to a conflict. I am not here to take sidès. :: am the
lawyer for the entire State of Bosnia-Herzegovina ~ .wh ch~ is a
member of the United Nations Organisation where we are meeting
today, and I have to do everything to ensure that the statehood
of my client be not jeopardised in any way. Continuity is not a
side issue.
Dr. Szass :
I don't think it essential that the point of continuity be solved
right here and now. This is not an academie· exe'rcise but a
political exercise. This language IS MEANT TO ESTABLISH A NEW
STATE WITHOUT EXPLICITLY USING THE WORD STATE or resolving the07-RUG-1993 16:04 HOTEL PRESIDENT GENE!JE 0041 22 73841'50 P.12
,' lJj (tU·
problem of continuity. The intention is that the Security council
will get around to endorsing this.
Dr. Trnika : This contradicts flatly the UN charter.
Dr. Szass : Well, you will get what you want from the security
Council. Anyway 1 look at Russia - she was the successor state to
the USSR, but Serbia was not allowed to be the successor state
to the 'Federal Republic of Jugoslavia'.
Dr. Trnika : Eventually, I could understand that we wo~ld drop
the term sta te in this paper, .but we cannot drop the concept of
the Republic of BiH as a Union and a unitary state. That is not
negotiable. Asto what you say on this being an 'agreement' :.the
language is very important because an 'agreement' is between
STATES. We are not talking about states here, but a state. Yeu
can talk about constitutional principles if you wish.
Dr. Szass : But the word constitutional 'agreement' was already
being used in late January, when we virtually had one, but then
the Serbians refused to sign because of ether points they didn't
like.
The paper you hàve before you is INTENDED TO BE A FULL
CONSTITUTION. That is why we changed the title to constitutional
agreement. I don't think we should get into semantics. This is
a practical question. The idea to discuss just principles was
suspend~d by the proposal to call it a constitution. This is
MEANT TO BE A COMPLETE TEXT WHICH STANDS BY ITSELF.
Dr. Trnika : If we are talking about a cônstitution, then that
means that the constitution has been suspended, which means in
law that the State of BiH is suspended. That is suicide. We will
never agree to it.
Dr. Szass : No, I assure yeu, there 1s no suspension. It: is not
intended to function as suspension. ~ou will keep a state until
the new state cornes into being. It says here at the bottom of the
document anyway, that it only cornes into operation at the point
the parties all agree.
Prof. Boyle : Your verbal assurances are not enough. This is a
legal matter. This has to be in black and white.
Dr. Trnika : The 3 Republics do not exist. 'Therefore they cannat
lawfully make an agreement. We already have a stai:e. Its
transformation can only occur through constit.utional
transformation. The state of BiH can not gîve up being a state.
The consequences would be too terrifying.
THE LETTER FROM THE PRESIDENT TO OWEN AND STOLTENBERG IS
PRODUCED. CONSTERNATION ON DR. SZASS' COUNTENANCE.
Dr. Trnika : This emerged after my discussion last night v.rith the
President. He had not fully understood the implicat:.ons of
Article 1. 07-RUG-1993 15:05 HOTELPRESIDENT GENEUE P.13
17ff~U:
/
-·
Prof. Boyle : We are not trying to be difficult. Once we have
sol ved this we can go on to discuss the details of the agreement.
But there is no way around the unsatisfactory nature of Article
1 in your paper. Did you write this Dr. szass ?
Dr. szass : I had tried to be more precise àbout the quel:;tion of
statehood in my original wording. But:·it was changed. AnYT<Tay,the
question is whether your Government ·can agree to how the NEW
STATE CAN OPERATE. I can tell you that there will be LITTLE
UNDERSTANDING IN THE INTERNATIONAL COMMUNITY ABOUT THESE
THEOLOGICAL QUESTIONS. I mean, as to whether it is t.he same
state, or whether it is changed. The question is whether these
agreements can be operational.
clearly, this instrument is not fully satisfactory f:rom the
standpoint of every party. There are compromises. :That is the
nature of most agreements. . .
Prof. Boyle : Formally submits our revision of Article 1 and the
Title : Constitutional Instrument, which was Dr. Szass' word. See
Attachment.
But where does this language in Article 1 come from ?
Dr. Szass : It DEVELOPED AFTER THE PRESIDENCY MEETING.
Prof. Tanovic : We will never give up our state. We h.3.ve our
legal rights. We can negotiate the internal structures, 1but the
only future is one state.
Dr. Szass : You may not like this but is this a set-up that you
can live with ?
Prof. Boyle : I have to repeat, do not address me as though you
were talking to a party to the confliçt. I am the lawyer for the
State of Bosnia. We as a state cannet negotiate av.·ay our
existence as a state. You have now seen the let ter from our
President to David Owen. Article 1, we cannet get around it. When
the President realised what that was, he could not go forward
with the paper as it was. In any case, it has to go back to the
collective presidency. It has to be approved as a whole.
I was in the Security Council last week, and they fully su:;>ported
me.
Dr. Szass : Somehow, YOU WILL GET ASSuRANCES THAT THE PROBLEM OF
YOUR MEMBERSHIP IN THE UN will be solved. If all parties to an
instrument start nit-picking and blocking on one articli:, then
we will never get beyond square one. I can tell you, if you go
on in this way, THE SECURITY COUNCIL WILL TELL YOU TOGO T~'HELL.
Losing his temper, szass makes plai~ that the pu~pose of the
Owen-Stoltenberg plan is indeed to divide the Republic of Bosnia
Herzegovina into three independent states.
Prof. Boyle The Security Council supports us.07-AUG-19'16:07 HOTELPRESIDENGENEUE 0041 22 7384''50.14
Dr. Szass Fine. I think we've got about as far as we can this
morning.
. Prof.Boyle You can reach me at my hotel anytime.
Simd ~ .
Prof~is~ Pr~feer l ef International Law, General
Agent of the Republic of Bosnia and Herzegovina before the
International Court of Justice.
Prof. Kasim Trnika, Judge in the Constitutional court and Legal
Exper~, for the )Bos ian Delegation to the International
rence on _fo ·1av in t;eneva.
/~-~t/
Z
Herzegoviia inTDenmark.c, RepresentaofvtheGovernmen' of Bosnia-
~!Y~ Q ?cV?q
l)enana Campara,/B. Sc. E.E.Vice-President, Bostiia-Herzegovina
Information Centre, ottawa, Canada. ·
Katharine Kanter, rappo~teur.
Attachment 0041 22 7384?50 P.15
07-AUG-1993 15:07 HOTEL PRESIDENT GENEIJE
,1
..
1 The Union of Republics of 3osnia and Herzegovina is a State composed of
three constituent reoublics: and
and encomoasses three cons~itu eenptes: the Muslim s cbs
-a-n~à~C~r-o weal_ta~s a--g,o-pas of othe~s.
2. The Union of Republics of 3osnia and Eerzegovina is the legal
continuation of the Republic of 3osnia ~nd Herzegovina.
3. For this reason, the Union of Reoublics of 30~nia and Herzegovina. will
continue the Membership of the ?,epublic of 3osnia and Herzegovina in t.he
United Nations Organisation and throughout the United Nations Sys~em as
approved by Resolutions to that effect ~èopted by bath the Security
Council and the General Assembly. This Agreemerit shall not beccme
effective until both of these ~esolution save been adopteà.
4. For the same reason, the Union of the Reoublics of Bosnia and
Herzegovina .,.,illalso continue the membership of or participation by t.~e
Republic of 3osnia and Herzegovina in all other international
organisations, ar~angements, or agreements of whatever type or èescription
or however nameà.
5. For the same ::-eason, the Union of !l.e?ublics of Bosnia and Rerz.egovi~a
.,...ill continue the· legal st:atus of t~e ?.e?ublic of 3osnia and ::erzegovi:1a
as a Contracting Party to all internat~onal treaties, agreements or
arrangements of whatever type or èescri?tion or however named, and
including but not limited to the :our Geneva Conv:entions of 1949', thei::
Two Additional Protocols of î977, and t~e Genocide Convention of 1948 .
,
5. The ünion of the Re?ublics qf 3osnia and Serzegovina will remain free
:o join any ether internatlonal organisations, agreements, arrangements or
treaties that the ~e?ublic of Bosnia and ::erzegovina is ~ot c~rrently a
\ember of , or a contrac~ing ?ar~y to, or a ?artici?ant in, etc.
!99 3.07-AUG-199316:08 HOTEL PRESI DEt-lT GEt--lEVE 0041 22 73cW?50 P.16
/'fjé}() .· . .. .
INTERNATIONAL CONFERENCE . ..•
ON THE FORMER YUGOSLAVIA . .
Palais des Nations, 1211 Geneva 10
Officeof the Co-Chaii1llen
.31July 1993
Dear President Izetbegovic
In reJ?lY to your letter of 31 July in which you pose a
quest~o onceming the interpretation of Article 1 of the
Consti tutional Agreement, we would like to :i:nfonnyeu as
follows:
a. Bosnia and Herzegovina ls already a recogniserl merilber
state of the United Nations.
The principles adopted at the London Conference, as well
as the principles laid down·by the Security Council,
l.Ilte;:tgrof Bosru.a and HerzegoVl.nancas aamember stat:el of
the United Nations. .
c. ··Article l of the Constituti A geerŒrit, which all
three J?arties have agreed to, states that 1the Union of
Republ~c of· Bosnia and Herz11ovina will be a member
inattheospiritUnof the Charter •of the united Nations,rtithe
Principles of the London Conference and the princip:.es
laid down by the SeèUrity Council and therefore. com:inn
to you our understand.i.nq that the·meaning of Article 1 is
that the Union of Repubiics of Bosnia and Herzegovina
will continue as a member state of the United Nations.
Yours sincerely
.· /'/1. ~
l . /1:..-. --:-----
' 1li#: d- ~tÎ\(, ~,i~-M~
Thorvald Stoltenberg David owen
-·---------··
1
His ExcellenS(
President AliJa Izetbegovic ~07-AUG-1993 16:09 HOTELF'RES IDENT GE~~EIJE 0041 22 7384?50 P.17
10/()d
REPUBLIC OF BOSNI.A AND HERZEGOVINA
PRESIDENCY
Lord David owen
Mr. Thorwald Stoltenberg
ICFY CO-chairmen
Sirs,
in reply to your lettei of 31 }uly 1993·concerning the
interpretation of Article 1 of the Draft of the ConBtitu
tional Agreement, I wish to make it clear that we will do
nothing that might question to any extent our membe:rship
in the United Nations Organization, under whose auspices
these negotiations are being conducted. Therefore; I have
asked my legal advisers to prepar~ a new version of Article 1
of the Draft in arder to deal with this poirit, .a copy of
which is attached. In our efforts to promote these negoti
ations in accordance with the principles of the United
Nations Charter, we would encourage you to give the most
serious consideration to this objection.
I hope that we shall be able to overcome present obstacles
in arder to continue negotiations in good faith.
Please accept the expressions of· my highest consideration.
1 August 1993 ·
Attachment
PHON2 38 71 61 03 40; 66 49 41; 66 48 97;fax66 49 42 HOTEL PRESIDENT GENElJE 0041 22 7384!50 F'.18
07-RUG-19'33 16:10
19 lé}_()
THE CONSTITUTIONAL PRINCIPLES OF BOSNIA AND HERZEGOVINA
I. The Republic of Bosnia and Herzegovina
ARTICLE 1
The Republic of Bosnia and Her~egovi is na union •::omposed of
three constituent republics: ··., , and ; and
encompasses three constituent peoples: Croats, Muslims, arui Serbs, as well
as a group of other peoples. The Republic of Bosnia and HeJrzegovina is a
member state of the United Nations Organization and of othHr Organizations
within the United Nations System.
<>'··
\ 0C14122 7384?50
'07-RUG-19916=11 HCITEL F'RESI DEt-n GEt·lEIJE
To the Judgeof ationaCourt of Just1ce
The Peace Palace
The Ha9Ue
The Netherlands
6 August199!3
'
Your Excellencies, i
As you may know fr~a s news media sourcethe so-called
"Owen-StoltenbePlan:" ls for the Republa. Bosnia and Herzegovina
to be carveup intot:h independanstates!a to loseour membership
in the UniteNation.0 izàtionIn a lette.r the ICFY Co-chairmen
dated1August1993, Pr entrzetbegovifite a formal"objection"to
both our Staand ourh membership.A copy f thisletterand our
formalcounter-offeis ached. to this ation.So far. thehê.s
been no responfrom t o-chairmen.
1
This is to infoyou i vance thaany "asse tn he"so-called
been coerceby means ot e illegause of forckthreats,duress,ave,
compulsioand coercio ist~te Republicof ~osna ndaHerzegovina
both at UnitNations ea quart~r isGenevaa~dupon the Capitaof the
Republiin Sarajevo.T1r~fore,as a matteof publicinternationalaw,
any such "assento th•"q:>wen-StoltenPlan"! wilbe illegalnull,
whatsoevein accordan· w th the Vienna Convent)ion on the Law of Treaties
and generainternatio1 aw. ! ·
Il !
Pleaseaccept,Excellenbi, the assurancof my;highesconsideration.
~-~ k ~ L -~ - .J
FrancisA.Bo~r 1 ~~
GeneralAgent fothe Rêp lie
the InternationCourt bf Justice
1
1
4q"'W•.1'J 1211 Goosm"T<l'ph;221130T, 02231 22 0!éf~
Supplement to the Application and to the Second Request for the Indication of Provisional Measures submitted by the Government of the Republic of Bosnia and Herzegovina