Application of the Convention on the Prevention and Punishment of the Crime of Genocide

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Citation. I.C.J., www.icj-cij.org (2008)

Brief Fact Summary. Croatia allegation against the Federal Republic of Yugoslavia (FRY), which had become “Serbia and Montenegro” and then “Serbia” was that the defendant had violated the Genocide Convention of 1948 (Convention). Serbia (D) objected to the Court’s jurisdiction by claiming that the FRY as successor to the Socialist Federal Republic of Yugoslavia (SFRY)-which had adhered to the Convention-did not become bound to the Convention upon the dissolution of the SFRY because it was not the continuator state.

Synopsis of Rule of Law. A State will be bound as a party to a Convention to which its predecessor was bound if the State equivocally declares that it will be bound by its predecessor state’s legal obligations and consistently conducts itself in accordance with such a declaration.

Facts. A suit was brought against the Federal Republic of Yugoslavia (FRY) which became “Serbia and Montenegro” and then just “Serbia: in 1999 by Croatia (P) before the I.C.J, contending that Serbia had violated the Genocide Convention of 1948 (Convention) by directly engaging in or encouraging acts of “ethnic cleanings” of Croats in parts of Croatia (P). Croatia (P) also argued in order to buttress its point that the Court had jurisdiction pursuant to Article IX of the Convention, which stipulates that the Court with jurisdiction over disputes relating to a state’s responsibility under the Convention. Serbia (D) objected to the Court’s jurisdiction on the premise that the FRY as successor to the Social Republic of Yugoslavia (SFRY) had not become bound to the Convention upon the SFRY’s dissolution since the FRY was not the continuator state. But Croatia (P) posited that the FRY’s declaration in 1992 that it would “strictly abide” by all the SFRY’s commitments and a Diplomatic Note (Note) to that effect. But Serbia (D) maintained its argument on the ground that such a broad declaration was not sufficient to bring about succession of the treaty and that a declaration specifically identifying the treaty to be continued was necessary. The Court delivered its judgment.

Issue. Is a State bound as a party to a Convention to which its predecessor was bound if such a state equivocally declares that it will be bound by its predecessor state’s legal obligations and consistently conducts itself in accordance with such a declaration?

Held. Yes. A State will be bound as a party to a Convention to which its predecessor was bound if the State equivocally declares that it will be bound by its predecessor state’s legal obligations and consistently conducts itself in accordance with such a declaration. There is a distinction between the legal nature of ratification of, or accession to, a treaty, and the process by which a State becomes bound by a treaty as a successor State or remains bound as a continuing state. Accession or ratification implies an act of will on the part of the State manifesting an intention to undertake new obligations and to acquire new rights in terms of the treaty. When it pertains to succession or continuation, the manifestation of the act of will of the State which relates to an already existing set of circumstances and amounts to a recognition by the State of certain legal consequences emanating from those circumstances, does not have to be so formal and any form of confirmatory notification will suffice. Based on this, the declaration or Note will be given the effect they had on their face, that is the FRY would be bound by the legal obligations of a party in respect of all multilateral conventions to which the SFRY had been a party at the time of its dissolution. The FRY (Serbia (D)) is therefore bound by such a commitment including Article IX, since it had made no reservations to such a commitment, which endows the Court with jurisdiction to hear cases brought under the Convention against parties thereto.

Discussion. When a state makes it clear that it does not consider itself bound by treaties to which a predecessor state was a party, then the 1978 Vienna Convention on Succession of States in respect of Treaties will not be binding on such a state. If the state later decides to become party to a certain treaty, then it will have to do so by accession through a formal writing required by the treaty, not by succession.