State Succession in Relation to State Responsibility

REPORT

WORKING GROUP II

STATE SUCCESSION IN RELATION TO STATE RESPONSIBLITY

51st International Law Seminar

Geneva, 23 July 2015

Members of Working Group II

Mr. Francis W. Changara (Zimbabwe)

Mr. Namgay Dorji (Bhutan)

Ms. Fatoumata P. Doumbouya (Guinea)

Ms. Lucia Leontiev (Moldova)

Ms. Matilda Mendy (Gambia)

Mr. Momchil Milanov (Bulgaria)

Ms. Quyen T.H. Nguyen (Vietnam)

Ms. Ye Joon Rim (Republic of Korea)

Mr. Matteo Sarzo (Italy)

Mr. Cornelius v.N. Scholtz (South Africa)

Mr. Shuxi Yin (China)

2

TABLE OF CONTENTS

INTRODUCTION ..................................................................................................................... 3

PART I: Newly Independent States ........................................................................................... 4

Draft conclusion 1 .................................................................................................................. 4

PART II: Dissolution of States .................................................................................................. 9



Draft conclusion 4 ................................................................................................................ 17

PART III: Secession of States .................................................................................................. 20


PART IV: Unification of States ............................................................................................... 28

Draft Conclusion 6 ............................................................................................................... 28

PART V: Cession of a part of the territory .............................................................................. 37



ANNEX I. ................................................................................................................................ 45

3

INTRODUCTION

This Report is divided into five sections devoted to specific categories of succession of States.

The participants in this Working Group were requested to, on the basis of existing case law

and doctrine to prepare Draft Articles or Conclusions, with short commentaries, on the key

element of the topic, i.e. the transfer of the responsibility obligations from a predecessor to a

successor State in the following situations:

1. Newly independent States

2. Dissolution of States

3. Secession of States

4. Unification of States

5. Cession of a part of the territory

4

PART I: Newly Independent States

Draft conclusion 1

Transfer of State responsibility to newly independent States

(1) Subject to the following draft conclusions, there is no transfer of State responsibility to

the newly independent State for internationally wrongful acts committed by the

predecessor State.

(2) A newly independent State may accept responsibility for internationally wrongful acts

committed by the predecessor State before its independence, subject to the agreement of

all affected third States.

(3) An internationally wrongful act committed by a liberation movement is transferred to the

newly independent State, if such liberation movement is recognized as the government of

the newly independent State.

(4) A liberation movement may agree to accept responsibility for internationally wrongful

acts committed by the predecessor State.

Comment

1. The traditional doctrine of non-succession appears to be most appropriate in cases of

newly independent States.1 In this regard, this draft conclusion followed the definition of

a “newly independent State” found in the 1978 Vienna Convention on Succession of

States in respect of Treaties as meaning “a successor State the territory of which

immediately before the date of the succession of States was a dependent territory for the

international relations of which the predecessor state was responsible”.2

2. The general rule against automatic succession as articulated in Article 16 of the 1978

Vienna Convention that “[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

1 State Succession in Matters of State Responsibility, Provisional Report (prepared by Marcelo G. Kohen), Institute de Droit International, 14th Commission, para 89. 2 This definition is also used in the 1983 Vienna Convention on Succession of States in respect of State Property, Archives and Debts, which has not yet entered into force.

5

succession of States relates” should form the starting point of the investigation into the

rules regulating the situation of newly independent States in relation to State

responsibility.

3. The importance of the principle of consent and the hesitance to accept an automatic

transfer of rights and obligations to a newly independent State is further expressed in the

1978 Convention inter alia in Article 23 paragraph 2, which provides that “the operation

of the treaty shall be considered as suspended as between the newly independent State

and the other parties to the treaty until the date of making of the notification of

succession”.

4. The 1983 Vienna Convention on Succession of States in respect of State Property,

Archives and Debts similarly provides for the requirement of consent of a newly

independent State. Article 38, for example, provides that “When a successor State is a

newly independent State, no State debt of the predecessor State shall pass to the newly

independent State, unless an agreement between them provides otherwise in view of the

link between the State debt of the predecessor State connected with its activity in the

territory to which the succession of States relates and the property, rights and interests

which pass to the newly independent State.

5. Parallels could be drawn between the position of newly independent States with situations

of secession from a State3, where there is a continuator State, e.g. Russia after the break-

up of the USSR. In such cases the continuator State “should remain responsible for

internationally wrongful acts it committed in the past.”4

6. In the case of a newly independent State, the predecessor State has not dissolved and

therefore continues to be responsible for internationally wrongful acts committed before

the independence of the new State. It goes without saying that a newly independent State

will be responsible for internationally wrongful acts committed after its independence. It

is therefore necessary to look at State practice in situations where there may be a tranfer

of State responsibility to the newly independent State for internationally wrongful acts

committed prior to independence. These could include wrongful acts committed solely in,

from or in respect of the territory or population of the newly independent State before

3 Cf. discussion in Part IV below. 4 Dumberry, Patrick, The controversial issue of State succession to international responsibility in light of recent State practice, in German yearbook of international law, vol. 49, 2006, p. 435.

6

independence may in some circumstances be transferred to the newly independent State.

7. As a starting point, however, “the position generally taken by scholars is that the

continuing State should continue its previous responsibility for internationally wrongful

acts committed before the date of the succession notwithstanding the transformation

affecting its territory.”5 While his principle has been followed in the case of the

dissolution of the USSR, but not in the case of the independence of Namibia.

8. When looking at the transfer of obligations in respect of treaties, it may be useful to look

at treaties of a “territorial” character6 that relates only to the territory of the newly

independent State. In the Special Agreement between Hungary and Slovakia the parties

agreed that Slovakia is the sole successor State of Czechoslovakia in respect of the rights

and obligations relating to the Gabčíkovo-Nagymaros project. “[both] parties had (at least

implicitly) recognized the principle of succession to obligations arising from the

commission of internationally wrongful acts” even though both parties “rejected the

existence of any such principle of succession to international responsibility.” Hungary,

however, argued that “Slovakia should be responsible for the internationally wrongful act

committed by Czechoslovakia … only because it had endorsed and continued such acts

after the date of succession.”7

9. It is important, however, to keep that the relation of constituent States in a federation,

such as Czechoslovakia is not necessarily analogous in all respects to the case of a

colonial power and a dependent territory.

10. When looking at State practice it is difficult to find many instances where there has been

automatic transfer of responsibility for internationally wrongful acts committed prior to

independence. There are however some examples of newly independent States that have

voluntarily taken over rights and obligations with respect to its territory and population. It

would appear that “nothing prevents the successor State from freely deciding to take over

the consequences of internationally wrongful acts committed by the predecessor State.”8

11. In this regard, one example is Article 140(3) of the Namibian Constitution provides,

which Dumberry interprets as indicating both the capacity of a newly independent State

5 Ibid. p. 432 6 Cf. ICJ, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997 7 Dumberry, op.cit. p. 428 8 Ibid. p. 429

7

to agree to accept responsibility for internationally wrongful acts committed by the

predecessor State and as contradicting the notion that State succession never occurs in

respect of State responsibility.9

12. The two Nambian judgments of Mwandinghi10 recognised the competence of a newly

independent State to accept responsibility for acts committed by a predecessor State. It is

not clear however whether accepting such responsibility is an obligation under

international law, since the Nambian cases turned on the question of whether domestic

law in Namibia provided for such obligation.

13. Regarding an insurrectional movement, it is helpful to look at Article 10(2) of the ILC’s

Articles on Responsibility of States for Internationally Wrongful Acts reads as follows:

“The conduct of a movement, insurrectional or other, which succeeds in establishing a

new State in part of the territory of a pre-existing State or in a territory under its

administration shall be considered an act of the new State under international law.”

14. In an analysis of various approaches found in doctrine, Dumberry, relying inter alia on

the ILC’s Fourth Report on State Responsibility of the Special Rapporteur, concludes that

“[the] approach, generally supported in doctrine, is that there is a continuity between the

two subjects of international law, namely the insurrectional movement and the new State:

they have the same legal identity.”11

15. Dumberry, however, warns that the application of the continuity theory in the case of an

insurrectional movement is limited: “[It] is limited only to those cases where the rebels

have indeed established a regular ‘government’ during the hostilities, which is far from

always the case.”12

16. The “theory of the legitimacy of the struggle” which argues that “since the rebels’

struggle would truly represent the ‘desire’ of the people they are fighting for, the new

State should be held accountable for internationally wrongful acts committed by them

9 Ibid. 432. Article 140(3) reads as follows: “Anything done under such laws prior to the date of Independence by the Government, or by a Minister or other official of the Republic of South Africa shall be deemed to have been done by the Government of the Republic of Namibia or by a corresponding Minister or official of the Government of the Republic of Namibia, unless such action is subsequently repudiated by an Act of Parliament, and anything so done by the Government Service Commission shall be deemed to have been done by the Public Service Commission referred to in Article 112 hereof, unless it is determined otherwise by an Act of Parliament.” 10 Cited in Dumberry, op. cit. p. 439 11 Dumberry, Patrick, New State Responsibility for Internationally Wrongful Acts by an Insurrectional Movement, in European Journal of International Law, vol. 17 no. 3, 2006, p. 608 12 Ibid. 610

8

during that liberation struggle”. The notion of the ‘true’ will of the people should

however be treated with caution.13

17. Another theory supporting the continuity approach is the ‘resurrection’ of State theory,

which refers to cases where a new State is actually an ancient State, which was not

independent for a certain period of time: “According to this theory, there would be a

continuity of identity between the ‘ancient’ State, the insurrectional movement and the

‘new’ State.” This theory however probably has very limited application.14

18. The organic or structural continuity theory is arguably most convincing. This theory

asserts that “it is the ‘structural continuity between the organization of the insurrectional

movement and the organization of the new State which better explains why the

consequences of responsibility should be accepted by the latter for internationally

wrongful acts committed by the former.” In many instances of insurrection, however,

there are more than one insurrectional movement, which raises the question of whether

the successful insurrectional movement succeeds to the obligations derived from

internationally wrongful acts committed only by its agents, or whether it should become

responsible for all actions by all insurrectional movements that engaged in the

insurrection. An argument could be made that it does not matter which of the competing

groups actually succeeds in forming a new State.15 This assertion is based on the notions

that international legal personality is vested in the people and not in the movement and

the fact that all the insurrectional movements would have had the same goal.

13 Ibid. 610 14 Ibid. 611 15 Ibid. 612

9

PART II: Dissolution of States

Draft conclusion 2

Definition of dissolution

In case of dissolution, a State ceases to exist and it is replaced by two or more successor

States which take responsibility for the international relations of the territory of the

predecessor State.

Comment

1. Dissolution is a question of fact and involves changes in the sovereignty of one State over

territory and population. Dissolution occurs when a former supreme authority is entirely

replaced by two or more new political entities displaying effective and independent

control within parts of the territory of the predecessor State.16

2. Cases of dissolution of States leading to the creation of new ones can be distinguished

depending upon whether this dissolution occurs consensually among the different

components of the State or, on the contrary, without such an agreement.

3. The international legal regime applicable in case of dissolution has always been a

disputed topic amongst scholars. The issue at stake is to understand whether and to which

extent the rights and obligations (the “secondary rules”) stemming from an internationally

wrongful act committed by the predecessor State are transferred to the successor State.

Draft conclusion 3

Principle of consent

16 According to MPPIL the discontinuity between the legal orders of the predecessor and the derived States is a main factor which testifies that the former State is extinct. See A. Tancredi, Dismemberment of States, in R. Wolfrum (ed.), Max Planck Encyclopaedia of Public International Law, Oxford, Oxford University Press, p.159. According to Crawford, a State is the same if its social reality has not been destroyed, i.e. if the constitutive elements of Statehood are substantially retained, notwithstanding any changes. See J. Crawford, The Creation of States in International Law, 2007, Oxford, 2nd edition, pp. 669-70. However in the case of SFRY, the Badinter Commission in its Opinion No8 noted that the existence of the SFRY was seriously compromised by the fact that ‘a majority of these entities [i.e. its constituent Republics], embracing a greater part of the territory and population, constitute themselves as sovereign States’. See J. Crawford, State Practice and International Law in Relation to Unilateral Secession, available online at http://tamilnation.co/selfdetermination/97crawford.htm

10

(1) Successor States may conclude an agreement with the injured State in order to settle the

consequences of the internationally wrongful acts committed by the predecessor State

towards that injured State.

(2) Nothing prevents the successor States from agreeing between themselves in order to

settle the consequences of any internationally wrongful act, committed by the predecessor

State.

(3) In concluding the agreements in paragraph 1 and 2 States should be guided by the

principles of proportionality, territoriality and good faith as expression of equity and

fairness.

Comment

1. The research in the field reveals a lack of uniform opinion on the issue of dissolution and

transfer of rights and obligations in relation to State responsibility. The examples of State

practice and doctrine demonstrate a gradual inclination towards the possibility to transfer

rights and obligations arising from an internationally wrongful act committed by the

predecessor State to the successor States, but no rule of automatic transfer has been found

in customary international law, given that the existing practice is not consistent and there

is a lack of sufficient examples of that practice so far.

2. This evidence imposes the necessity to build the draft articles based on the principle of

State consent because essentially, at the current stage it would be still premature to argue

about a possible presumption in favor of the automatic transfer. However, this can be

avoided if the basic principle is formulated in a way that the transfer of rights and

obligations related to the consequences of State responsibility should be arranged in an

agreement, negotiated in good faith and based on the principles of fairness and equity

between the predecessor and the successors, or among the successor States.

3. The focus is put on the conditions of an agreement between the States concerned, while

using a soft but indicative formulation of the current situation. Thus established, the

general principle leaves a sufficient margin of appreciation to States while giving a strong

indication that agreement is crucial without predetermining its outcome.

4. The reference to the principles of equity and fairness serve to indicate that States cannot

only “benefit” from such a legally complex situation, but also, if a State is extinct, it

11

ceases its existence, i.e. a State cannot be considered extinct in regards to another State

and existing in respect of a third State. If needed, this can be developed into a separate

paragraph. In that sense it is only possible to determine which new State totally or

partially continues the legal relations of the predecessor only by agreement, recognition

or acquiescence.17

5. An analysis of State practice in the matter of transfer of secondary rules in case of

dissolution of a State confirm these drafts conclusions.

6. Practice of the nineteenth century can provide for some examples as to how, by

agreement, States settled issues on the transfer of debts in case of the dissolution of one

State. However, a preliminary remark is necessary. It should be noted that the category of

“secondary rules” (namely, cessation of wrongful act, reparation, satisfaction as set forth

in the draft articles of 2001) was rather unknown in the nineteenth century. Instead,

scholars referred to “private and public debts” of the former State rather than transfer of

responsibility in the context of State dissolution. Max Huber, author of the treatise Die

Staatensukzession, dated 1898, made the first systematization of the matter. In the index,

Huber classified State debts, but he did not include a specific category for debts arising

from an internationally wrongful act18. In the same vein, during the first lecture held at

the Hague Academy in 1928 on this subject, “dette publique” was intended as

“obligations contractuelles de l’Etat”.19 Given the uncertainty surrounding the transfer of

State responsibility, the analysis of the cases in which, during the nineteenth century,

States settled the transfer of “debts” arising from an internationally wrongful act must be

interpreted strictly, in order to avoid any kind of hazardous conclusion.20

7. The first case of dissolution in the nineteenth century is that of the Kingdom of

17 MPPIL, vol 3, p.161 18 See E. H. Feilchenfeld, Public Debts and State Succession. New York: The Macmillan Company, 1931, p. 401. This scholar made a distinction between tort claims, which constitute a breach of the domestic law of the annexed or territorial State, and international tort claims in general (see at 689-690). In his opinion, the rule of maintenance in case of State succession did not apply to this latter kind of debts, unless they had been awarded or recognized before the date of succession. Lacking such recognition or liquidation before that date, the debts had to be seen as "diplomatic" claims of political nature and incapable, by their nature, of transfer (see at 729). 19 See A. N. Sacks, La succession aux dettes publiques de l'Etat. Recueil 1928 vol. 23, t. 3, at 153 20 Unfortunately, the UN Convention on Succession of States in respect of State Properties, Archives and Debts does not provide for a clear answer on this matter. The comment of article 31 of the Draft Articles of this Convention, which gives the definition of State debts, reads as follows: "delictual debts, arising from unlawful acts committed by the predecessor State, raise special problems with regard to succession of States, the solution of which is governed primarily by the principles relating to international responsibility of States". See Draft articles on Succession of States in respect of State Property, Archives and Debts with commentaries, Yearbook of the International Law Commission, 1981, vol. II, Part Two, at 78.

12

Westphalia (1813). The treaty of Westphalia of 1842 between Prussia, Hanover, Hesse,

Luneburg and Brunswick regulated the dissolution of the Kingdom of Westphalia in 1813

where the successor States decided to share the debts of the Kingdom but expressly

excluded delictual debts, which had not been recognized by the predecessor State.21

8. A second case involving issues of transfer of what we nowadays classify as “secondary

rules” is the one of the dissolution of Union of Colombia, an undisputed example of

dissolution of State.22 The Union of Colombia was founded in 1819 as a Confederation

comprising New Grenada and Venezuela; in 1821 and 1822, Panama and Ecuador joined

respectively to the Union. However, between 1829 and 1831 some events led to the

dissolution of Union of Colombia.23 Some treaties concluded between the new States of

New Grenada, Ecuador, Venezuela and the USA provide for relevant practice as for the

transfer to these new States of the rights and obligations arising from the internationally

wrongful acts committed by the Union. A first agreement, concerning the claims relative

to some US schooners confiscated in 1827 in the territory of the Union of Colombia, was

signed between USA and Venezuela in 1852. Article 1 of the treaty stipulates that

Venezuela obligates itself to pay to the US a sum for the wrongful acts committed upon

these vessels. It is well evident from the context of the treaty that confiscations had

occurred when Venezuela was part of Union of Colombia; consequently, Venezuela

engaged itself to pay a part of reparation for injury committed by the former State.24 On

the contrary, the agreement concluded in 1862 between USA and Ecuador in order to

“adjust the claims of citizens of said States against Ecuador” and vice versa does not

provide a clear answer to the issue of transfer of responsibility. This treaty simply

established a temporary commission, whose aim was to settle claims on the part of

“corporations, companies or individuals” upon the two States concerned.25 In no part of

this convention did Ecuador admit or endorse explicitly the rights and obligations arising

from any internationally wrongful act committed by the Union of Colombia nor does any

21 E. Feilchenfeld, Public Debts and State Succession, New York, Macmillan, 1931, pp.156-162 22 See P. Dumberry, State succession to international responsibility. Leiden: Nijhoff, 2007, at 106; J.P. Monnier, La succession d'Etats en matière de responsabilité internationale. Annuaire français de droit international, 1962, vol. 8, at 76. 23 See F.A.Pfirter, S.G. Napolitano, Secession and International law: Latin American practice, in Marcelo G. Kohen (ed.), Secession: International Law Perspectives. Cambridge: University Press, 2006, p. 383-384. See also D.P. O' Connell, State Succession in municipal law and international law. Cambridge: Cambridge University Press, 1967, vol. I, at 388. 24 See 1852 Protocol between the United States of America and Venezuela, 2 U.S.T. (1842), at 1842-1843. 25 See M.J. Volkovitsch, Towards a New Theory of State Succession to Responsibility for International Delicts. 92 Columbia Law Review 2162 (1992), at 2175.

13

provision of the agreement delimit the scope ratione temporis of the claims over which

the commission had jurisdiction.26 Unilateral declarations of the States forming parts of

Union of Colombia can provide guidance as to the transfer of debts and obligations. The

Act of Union of St. Thomas d’Angoustura, by which Venezuela and New Grenada

formed the Republic of Colombia, specified that the new State of Colombia endorsed and

“nationalized” the debts contracted by Venezuela and New Grenada before the merger.

Then, the Peace Treaty of Paso of December 1832 between New Grenada and Ecuador

stipulated that the two States “shall pay such share of the Debts, Domestic and Foreign, as

may proportionally belong to them as integral parts which they formed, of the Republic of

Colombia”. Similar rules were embodied in the Convention of Bogotà of December 1834,

between new Grenada and Venezuela, accepted by Ecuador on April 1837.27 Even if this

practice proves that a complete and organic settlement of issues regarding the

responsibility of the former Union of Colombia was not fully achieved by agreement

between the successors States, it must nonetheless be noted that no State had explicitly

refused to take over the obligations of Union of Colombia nor was the principle of tabula

rasa invoked. In addition, the principle of proportionality had a relevant application in the

settlement of the matters.

9. The particular context in which State succession takes place, especially the colonial

practice, is of highest importance as it differs considerably from the contemporary

practice – the great powers often employed a norm of succession to obligations in

relations among themselves while propounding a different standard in their dealings with

the colonies.28 Even if the State voluntarily assumes the consequences of the wrongful

conduct of its predecessor while refusing to assume the responsibility of the acts, that ex

gratia payment clearly goes beyond the formation of a custom.

10. During the twentieth century, some cases of dissolution confirm the trends of transfer, by

agreement, of the responsibility of the predecessor State.

11. As to the Austro-Hungarian Empire, the difficulty in this case pertains as to whether it

must be understood as a case of dissolution or as the secession of Poland, Czechoslovakia

and Yugoslavia (with both Austria and Hungary being considered as the continuing

26 See 1862 Claims Convention, 1 U.S.T. 319 (1910), at 319-321. 27 See E. H. Feilchenfeld, Public Debts and State Succession, op. cit., at 170, 296. 28 M.J. Volkovitsch, Towards a New Theory of State Succession to Responsibility for International Delicts, op. cit., at 2180.

14

States), while mentioning that for the majority of the doctrine this is a case of a

dissolution.29 The Peace Treaty of St. Germain between the Allied Powers and Austria

contained a provision indicating Austria’s responsibility for the War (article 177)30. The

United States have also concluded a separate peace treaty with Austria in 1921 which

contained a provision specifying that all property of the imperial Austro-Hungarian

government would be retained by the US until a suitable provision would be set up by

Austria to compensate US nationals who had suffered “loss, damage, or injury to their

persons or property, directly or indirectly” or “in consequence of the hostilities or of any

operations of war” for acts committed during the War by Austria-Hungary. The US

considered Hungary to be the continuing State of Austria-Hungary and signed with it a

separate peace treaty which contains the exact same clause as that in the above-mentioned

treaty with Austria. It took the position that it was a new State in 1918 and the break-up

was interpreted as dissolution in order not to have to assume any obligations arising out

of the War.31

12. Another relevant case of dissolution and transfer of responsibility concerns the United

Arab Republic. In September 1961, Syria and Egypt left the United Arab Republic and

Egypt concluded some agreements with third States in order to settle the issues of

responsibility of the former Republic. The first agreement signed between Egypt and Italy

on 1965 provided for an obligation of Egypt to pay reparations for the nationalization of

Italian properties, rights and interests due to “the measures taken in the United Arab

Republic”, even before its dissolution. Similar lump-sum agreements were concluded

between Egypt and the UK, Sweden and USA.32 Contrary to other lump-sum agreements

of the same kind, the abovementioned treaties did not specifically address the question

whether Egypt had endorsed the responsibility of the former United Arab Republic in

relation to measures of nationalization, which had occurred only within the territory of

Egypt, thus excluding Syria. However, it seems to be undisputed that the parties to these

conventions, albeit implicitly, referred to a “territorial limitation” clause, in order to

confine responsibility to assets located within the territory of the signatory State, namely 29 P. Dumberry, op.cit., p.100 30 Treaty of Peace between the Allied and Associated Powers and Austria : Protocol, Declaration and Special Declaration, St. Germain en Laye, 10 September 1919, entered into force on 16 July 1920 in UKTS 1919 No 11(Cmd.400) 31 K.Marek, Identity and continuity of States in Public international law, Geneva, Librairie Droz, 1968, p.199 quoted in Dumberry, P., op.cit., p.102 32 See. B. H. Weston, R. B. Lillich, D. J. Bederman, International Claims: Their Settlement by Lump Sum Agreements, 1975-1995. New York: Transnational Publishers, 1999, at 139, 179, 185, 235.

15

Egypt.33 This practice presents an innovative element, the link of territoriality. Egypt

took over the secondary obligation of reparation arising from some internationally

wrongful acts, which, even if imputable to the former Republic, had been carried out in

the territory under its (new) jurisdiction.

13. In the case of the USSR, the claim of the Russian Federation to be its successor,

notwithstanding the declarations made by the representatives of 11 out of 15 former

Soviet Republics, that the USSR had ceased to exist (Alma Ata Declaration). It may be

argued that Russia was in position to consider itself the core of the former USSR. It took

the permanent seat in the Security Council and the properties of the USSR abroad. The

situation was however nuanced by the claim of the Russian Federation to be the

continuing State of the former USSR, instead of just a successor State, similar to the other

member States of the Commonwealth of Independent States (CIS). The claim which must

be taken to mean that the Russian Federation guarantees the continuity of all rights and

obligations of the USSR under international law, was soon accepted by the international

community.34 In the case of the dissolution of USSR two types of successor States

emerged: the Russian federation and the three Baltic States are generally regarded as

continuing pre-existing States (with the Russian Federation continuing the former USSR);

and the remaining former republics are generally regarded as successor States.35

14. The case of Yugoslavia is also relevant in assessing State practice about the transfer of

international responsibility. The Badinter Commission (set up by the Conference for

Yugoslavia) found on 29 November 1991 that “the Socialist Federal Republic of

Yugoslavia is in the process of dissolution”36 and in July 1992 it reached the conclusion

that this process had been completed. Consequently the Commission found that “the

SFRY no longer exists”.37 The Commission denied Serbian claims that the FRY is

identical with the former SFRY, thus FRY was regarded as merely one of the five

successors to the SFRY.38 After 10 years of negotiation, in 2001 a final Agreement on

Succession Issues was eventually reached among the successor States. Article 2 of Annex 33 See. B. H. Weston, R. B. Lillich, D. J. Bederman, International Claims: Their Settlement by Lump Sum Agreements, 1975-1995, op. cit., at 56. 34 J. Klabbers, M. Koskenniemi, O. Ribbelink & A. Zimmermann, State Practice Regarding State Succession and Issues of Recognition, Kluwer Law International, 1999, p.24 35 M. Koskenniemi & M. Lehto, “La succession d’Etats dans l’ex-URSS, en ce qui concerne particulierement les relations avec la Finlande”, 38 Annuaire Français de Droit International (1992), 179-219 36 The Badinter Commission, Opinion 1 (29 November 1991), par.3 37 The Badinter Commission, Opinion 8, (4 July 1992), par.4 38 See op.cit. supra note 20, , p.26

16

F specifically deals with the issue of internationally wrongful acts committed by the

SFRY against third States before the date of the succession, stipulating that “all claims

against the SFRY will be considered” by a Standing Joint Committee.

15. Finally, the dissolution of Czechoslovakia can provide for some guidance in the issue of

transfer of responsibility. In that context, through an unilateral declaration (art. 5 of

Constitutional Law n. 41993), the Czech Republic declared to “take over rights and

obligations […] deriving for Czechoslovakia on the date of its extinction from

international law, except those […] relating to the territory which was under

Czechoslovakian sovereignty but is not under the sovereignty of the Czech Republic’.39

This unilateral Statement is rather ambiguous. On the one hand, nothing would prevent

from construing this provision as encompassing the “rights and obligations” which stem

from any international wrongful act committed by the former Czechoslovakia, provided

that such a wrongful act occurred or had a sufficient link to the territory under the

jurisdiction of the new Czech Republic. On the other hand, this clause could be

interpreted as a reStatement or recognition of the rule of customary law, which provides

for the automatic transfer to the successor State of the rights and obligations set forth in a

treaty having a territorial character. Slovakia, on its part, never passed a similar

constitutional provision apparently. However, the ICJ expressly dealt with the issue of the

transfer to Slovakia of secondary rules in the case Gabčíkovo-Nagymaros. The court

found that the treaty between Hungary and Slovakia establishing the Gabčíkovo-

Nagymaros project had a territorial character; consequently, primary rights and

obligations were automatically transferred to Slovakia, by virtue of a corresponding rule

of customary international law (embodied in article 12 of the 1978 Vienna Convention on

succession of States in respect of Treaties).40 However, when addressing the issue of

secondary rules applicable to the case, the court did not expressly Stated that, because of

the automatic transfer of primary obligations to Slovakia, Slovakia bore accordingly the

responsibility for the wrongful acts committed by Czechoslovakia. Instead, the court

referred to the compromis, by which “the Parties agreed that Slovakia is the sole

successor State of Czechoslovakia in respect of rights and obligations relating to the

Gabčíkovo-Nagymaros Project” and thus Slovakia "may be liable to pay compensation

39 See V. Mikulka, The dissolution of Czehoslovakia and succession in respect of treaties, in M. Mrak (ed.), Succession of States. The Hague: Martinus Nijhoff, at 110. 40 See Gabčìkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, at 72, §123.

17

not only for its own wrongful conduct but also for that of Czechoslovakia”.41 Even if

some scholars pointed out the sensitive issues on succession of State the court was called

upon to settle in this case, given the possible repercussion that a clear-cut position on the

matter would have had on the pending Genocide case,42 however this judgment confirms

that States take into account the principle of territoriality in case of transfer of secondary

rules.

Draft conclusion 4

Conduct acknowledged and adopted by a State as its own

If a successor State has unilaterally acknowledged and adopted the wrongful conduct of the

predecessor State as its own, its international responsibility is engaged.

Comment

1. As it was already mentioned, State practice and case law at their present stage do not

support the presumption of the rule of automatic transition. At the same time it can be

noted that in the doctrine there are some signs of de lege ferenda towards the possibility

of succession as the expression of equity and fairness which does not leave the injured

State without a possibility to address its claim. In that sense it is necessary to look at some

exceptions where it might be possible to introduce such a rebuttable presumption of the

automatic transfer of consequences of State responsibility in some particular cases of

dissolution.

2. The first example is the so-called internationally wrongful act of continuing nature. It is

closely related to Article 11 of the Draft Articles on Responsibility of States for

Internationally Wrongful Acts43 and should be considered as an exception to the general

rule of consent. B. Stern writes that “tout en affirmant, […] qu’il n’y a pas de

transmission de responsabilité, Manlio Udina fait pourtant une exception pour cette

hypothèse, dans laquelle on pourrait dire que l’Etat successeur succède à la 41 See Gabčíkovo-Nagymaros Project (Hungary/Slovakia), cit., at 81, § 151. 42 See J. Klabbers, Case Analysis: Cat on a Hot Tin Roof: The World Court, State Succession, and the Gabčíkovo-Nagymaros Case. 11 Leiden Journal of International Law 345 (1998), at 346, 354-355. 43 Article 11. Conduct acknowledged and adopted by a State as its own Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own.

18

responsabilité parce qu’en réalité il succède à l’acte illicite, c’est-à-dire continue à

commettre le même genre d’acte illicite que l’Etat prédécesseur.”44

3. The rationale of the Article can be summarized as follows: If the successor State has not

taken measures to put an end to an internationally wrongful act whose commission has

started by the predecessor State and has continued the conduct, the successor State is

considered to have adopted this conduct as its own and thus it is under an obligation to

provide reparation for continuing such internationally wrongful act.

4. Another source to which a judicial body can have recourse when confronted with the

issue of State responsibility in case of dissolution would be the principle of unjust

enrichment as a general principle of international law. Its source can be traced to private

law and it could serve as a broader justification for the transfer of the consequences of

State responsibility. The principles of the Chorzow Factory case that “every violation of

an engagement involves an obligation to make reparation and that “a party cannot take

advantage of his own wrong” are also regarded as notions intrinsic to the idea of law and

legal reasoning. As such they can be (and have been) accepted not as municipal law, but

as general postulates of international law, even if not customary law in a strict sense.45

5. The doctrine of the acquired rights is perhaps one if the few principles firmly established

in the law of State succession, and the one which admits of least dispute.46 The

assimilation of these categories of rights to the concept of acquired rights is probably the

basis upon which the treatment of most of the problems of State succession may

profitably be attempted.47

6. Based on fundamental notions of equity rather than on the specific provisions of

municipal law, the principle of unjust enrichment is particularly well-suited to application

in international law. O’Connell writes that “it is upon the basis of unjustified enrichment

that the principles of compensation can be best rationalized.”48 Compensation is paid,

according to Kaeckenbeeck, simply as an equitable alleviation of the economic sacrifice

44 M.Udina, “La succession des Etats quant aux obligations internationales autres que des dettes publiques », RCADI, vol.44, 1933-II, Martinus Nijhoff, p.768 45 O. Schachter, International Law in theory and practice: a general course in public international law, RCADI, vol.178, 1982-V, Martinus Nijhoff, p.77 46 D.P.O’Connell, op.cit., p.267 47 Ibid. 48 D.P.O.Connell, volI, p.267. and quotes Kaeckenbeeck according to whom “the fact of refusing compensation would constitute a notorious injustice”, RCADI, vol.LIX, 1937, p.360

19

demanded on behalf of the community.49

49 Ibid.,p.359

20

PART III: Secession of States

Draft conclusion 5

Definition of Secession:

(1) Secession can be defined as the separation of a part or section of the territory of a

State with the intention to create a new State or joining another State.

General rule of non-succession

(2) Rights and obligations for internationally wrongful acts of the predecessor State as the

author will not succeed to the successor State in the case of secession of one part of

the territory of a State with the intent to create a new independent State, if the

predecessor State continues to exist.

Exceptions

(3) Rights and obligations arising from an internationally wrongful act of a predecessor

State will transfer to the successor State in circumstances where there is a direct

connection between the internationally wrongful act committed and the territory or

the population of the successor State.

(4) The rights and obligations of an internationally wrongful act carried out by an organ

or entity of an administrative unit of a predecessor State that subsequently becomes a

part of the successor State will succeed to the successor State.

(5) A successor State may agree to fulfill the rights and obligations in relation to any

internationally wrongful acts of the predecessor State.

(6) It will be considered an act of a new State under international law if the conduct of a

movement, insurrectional or other, succeeds in establishing a new State in part of the

territory of the predecessor State or in a territory under its administration.

Comment

1. As a general rule, secession is not a legal practice recognized by international law and is

not in accordance with Charter of the United Nations. Paragraph 4 of Article 2 of the

Charter developed the principle of territorial integrity, which could be said to exclude the

lawfulness of any act of secession. In its judgment of 1998 in the Quebec case, the

21

Supreme Court of Canada affirmed that there exists no right to unilateral secession in

international law. The right of States to territorial integrity might not be absolute and

unqualified. The development of international human rights law has in many respects

limited the concept of State sovereignty. In particular, for our purposes here, the theory of

the so-called remedial secession suggests that gross and systematic human rights

violations can lead to a State losing a part of its territory if this oppression is directed

against a specific group of people50. In this regard, the Supreme Court of Canada seems to

have upheld the inverted reading of the safeguard clause by stating that: “The other clear

case where a right to external self-determination accrues [apart from colonial situations]

is where a people are subject to alien subjugation, domination or exploitation outside a

colonial context.”51 The judges Wildhaber and Ryssdal in their opinions concerning the

Loizidou v. Turkey52 case at the European Court of Human Rights also adopted the same

position.

2. The questions regarding succession secession of States refer to the responsibility of the

continuing State and the transfer of the obligations to the successor State. In the case of

secession, such territorial lose do not affect the predecessor States identity53.

3. The form that secession can take fall into two categories:

a. Secession without the initial agreement of the predecessor State (example of

Bangladesh); In either event, due to the requirement of parent-State approval,

there cannot be said to be a right to secession as such under international law;54

and

b. Secession occurring with the agreement of the predecessor State, the case of the

secession of Baltic States from the Soviet Union is an example of a consensual

secession in international law practice, as well as the cases of Singapore-Malaysia,

and Serbia and Montenegro. Such approval may be given by the constitution of

50 Vidmar, Jure, “Remedial secession in international law: theory and (lack of) practice”, in St Anthony’s international review 6, no. 1, 2010, p. 38 51 The Quebec case, 1998, n. 5, 133-135 52 Loizidou v. Turkey, 15318/89, ECHR, 18 December 1996 53 Suy, Erik, «Réflexions sur la distinction entre la souverainité et la compétence territoriale», in: René Marcic and others (eds.), Internationale Festschrift fur Alfred Verdross, 1971, 493,494 54 Reference re Secession of Quebec (1998) 2 SCR 217 (Supreme Court of Canada) (“The Quebec case (1998)”) (112)

22

the parent State, or in some other form, either prior to the declaration of

independence or following an initial unilateral declaration.55

4. In the circumstance where the predecessor State continues to exist after the date of

secession, the position generally taken by scholars is that the continuing State should

continue its previous responsibility for internationally wrongful acts committed before the

date of secession notwithstanding the transformation affecting its territory56.

5. As mentioned in the Article 1 of the draft Articles above, the general rule is that of non-

succession if the predecessor State continues to exist. This is because the predecessor

State continues to enjoy all the rights and the assumption of obligations arising from the

international wrongful act before the secession occurred. Different types of succession

may be subject to different specific solutions. The issue of the predecessor State still in

existence after the date of secession/succession has important consequences in

determining whether there are any succession regarding rights and obligations arising

from international wrongful act.

6. The theory of non-succession in the case of secession is based on two decisions: the 1923

R.E. Brown case in the context of the annexation of the Boer Republic of South Africa by

Great Britain and Hawaiian claims case of annexation of Hawaii by the United States in

198957 . Also, in the Socony Vacuum Oil Company case, the International Mixed

Commission (US-Yugoslavia) held that Yugoslavia was not responsible for the

confiscation of the property of Croatia during the Second World War.

7. The situation however was considered by the Commission as involving the problem of

responsibility for the acts of a government, which was not subject to the control of

Yugoslavia, rather than a problem of succession of States, Yugoslavia having continued

to exist as a State throughout the war58.

8. Rights and obligations under State responsibility should be differentiated from the Vienna

Conventions in that it deals with the responsibility of the State towards internationally

wrongful acts that could be committed against individuals. It appears normal that the

victim or author of the international wrongful act still holds the same rights and 55 Raič, David, “Statehood and the Law of Self-Determination”, The Hague, Kluwer Law International, 2002, 314 56 Dumberry, Patrick, The controversial issue of State succession to international responsibility in light of recent State practice, in German yearbook of international law, vol. 49, 2006, p. 432 57 Dumberry, Patrick, ibid. p. 416 58 Socony Vacuum Oil Company, 1954, 21ILR 55, in Mikulka, V., State Succession and responsibility, p. 293

23

obligations arising from that act no matter whether its territory and population have

diminished.

9. This general rule has several exceptions especially in the instances where the predecessor

State continues to exist, after the date of secession as in the case of Yugoslavia.

10. Acts committed within or in relation to a given territory can be the result of centrally

controlled organs, and not necessarily those of the territorial unit in which those acts were

performed. Moreover, international wrongful acts can be committed either within or

outside the territory of the State. The place where this act was committed might be

irrelevant unless the spatial element forms part of the elements of the primary obligations

that has been violated.59 The Gabčíkovo-Nagymaros Project case is relevant here, even

though it relates to the dissolution of a State.60

11. An essential element of internationally wrongful acts lies in their consequences. In the

instance that there is an intrinsically direct link between the consequences of the wrongful

act and the territory or the population that becomes part of the territory of the successor

State, this will be an exception to the general rule.

12. Another exception to the general rule is the situation where entities from a predecessor

State become a part of the successor State. As this entity continues to assume the rights

and obligations arising from its internationally wrongful act before secession took place,

it will stand to reason that the successor State succeeds to the rights and obligations

stemming from the internationally wrongful act.

13. This could influence the question whether there could be succession to the rights and

obligations arising from international wrongful acts when secession occurs, whether the

organ or entity that directly committed the act that resulted in responsibility, or whether

the Commission of the act in question directly affected, becomes an organ of the

successor State.61

14. It may be, under special circumstances, that reasons akin to those invoked to depart from

the general non-succession rule may also lead to the sharing of the consequences of an

international wrongful act by both the predecessor and the successor State(s). This 59 Article 12 of the 1978 Vienna Convention on Succession of States in Respect of Treaties 60 Gabčíkovo-Nagymaros Project, Hungary Slovakia. Judgement, I.C.J. Reports 1997, p.7. 61Kohen, G. Marcelo, “Succession of States in the field of international responsibility: the case for codification”, in Perspectives of International Law in 21st century, edited by, Kohen, Marcelo, Kolb, Robert et Tehindrazanarivelo, Djacoba Liva, Martinus Nijhoff publishers, 2012

24

situation would for instance occur if the wrongful acts were committed by both the central

organs of the predecessor State and the local organs that later became the organs of the

successor State, or if the consequences of the wrongful act benefitted both the predecessor

and the successor State, or if the consequences were intrinsically linked to both territories

and populations.62

15. It should be noted here that the question whether the international wrongful act is

committed in the territory of the successor State might not be considered relevant under

this exception, as acts committed within or in relation to a given territory can be a result

of a centrally controlled organ and not necessarily those of the territorial unit in which

those acts were committed. The situation envisaged here are acts of organs of an

autonomous government within a State that subsequently become the organs of a new

State63.

16. In the Gabčíkovo-Nagymaros Project case the parties explicitly stipulated in the Special

Agreement that “the Slovak Republic is one of the two successor States in respect of

rights and obligations relating to the project. The court in its judgment held that it was on

the basis of this special agreement that “Slovakia may be liable to pay compensation not

only for its own wrongful conduct but also for that of Czechoslovakia as well as by itself

as a result of the wrongful conduct of Hungary”64.

17. In the Genocide Convention case (Bosnia and Herzegovina v. Serbia and Montenegro),

Serbia continued the personality of Serbia and Montenegro which was the same State

called the Federal Republic of Yugoslavia, and Montenegro became a successor State of

it by virtue of Article 60 of the Constitutional Charter of Serbia and Montenegro. Bosnia

and Herzegovina was of the view that both Serbia as the continuator and Montenegro as

the successor of Serbia and Montenegro “jointly and severally, are responsible for the

unlawful conduct that constituted the cause of action in this case”. Montenegro

considered that this was not the case and Serbia left the matter for the court to decide. The

court established that Montenegro was not a party to the case by virtue of the fact that the

continuator of the respondent was Serbia.

18. The court did not address the possibility of joint and several responsibility of Serbia and

62 Ibid. p. 169 63 Kohen, G. Marcelo, ibid. 64 Gabčikovo-Nagymaros Project, Hungary Slovakia. Judgement, I.C.J. Reports 1997.

25

of Montenegro, let alone any kind of obligation incumbent on Montenegro for the

international wrongful act committed by its predecessor State. What is beyond doubt in

the court’s reasoning is that the continuator State has to assume the obligations of

internationally wrongful acts committed before the date of succession as a result of the

separation of part of its population and territory in order to constitute a new State.

19. What these two cases demonstrate is that rights and obligations arising from international

wrongful acts of a predecessor State can be transferred to a successor State.

20. Other exception highlighted above in the draft conclusions are instances when a successor

State willingly assumes the rights and obligations arising from internationally wrongful

acts prior to secession. This is the legal approach on the issue of succession in case of

secession; but the practice can differ. In this context, the example of Namibia is very

relevant. It represents an exception to the general rule applied for State succession in case

of State secession movement.

21. The case of Namibian independence after a long period of colonization is a very

interesting example of succession regarding the creation of a new State. According to a

resolution concerning Namibia, adopted at the time that the United Nations Conference

on Succession of States to Treaties (A/CONF.80/16/add.1, vol. III, 177) was negotiated,

South Africa should not be regarded as the predecessor of Namibia, although in practice it

was. In the case of Namibia, the general opinion was that of application of the tabula

rasa principle, including concerning the internationally wrongful acts committed by

South Africa. Nevertheless, according to the Namibian constitution, the acts of the South

African government should be deemed as those of the new Namibian State65. The case of

Mwandinghi v. Minister of defense of Namibia before the High Court and Minister of

Defense, Namibia v. Mwandinghi before the Supreme Court, involving the claim of

damages arising out of the shooting of Mr. Mwandinghi, a Namibian national, by forces

operating for the South African Defense Forces in 198766. The Ministry of Defense

argued that under international law a new State does not succeed to delicts committed by

its predecessor but the High Court held that according to the Namibian constitution, the

new State had accepted all that was done previously by the predecessor State. According

to Article 10, paragraph 2 of the ILC’s Articles on Responsibility of States for

65 Namibia Constitution, 9 february 1990, in force from 21 march 1991 66 Dumberry, Patrick, ibid. p. 439

26

Internationally Wrongful Acts, the new State of Namibia which emerged after the

struggle of a national liberation movement should not be held responsible for the acts

committed by the predecessor State during that period of trouble.

22. Article 10 of Articles refers to the situation in which a secessionist movement succeeds in

its endeavor to create a new State, and it stipulates that in such a situation the conduct of a

victorious insurrectional movement undertaken against the central government is

attributable to the new State once the movement comes to power.67 Paragraph 2 of this

Article reads as follows: “The conduct of a movement, insurrectional or other, which

succeeds in establishing a new State in part of the territory of a pre-existing State or in a

territory under its administration, shall be considered an act of the new State under

international law.”68 In this situation there is no succession to rights or obligations of the

predecessor State. The question is to determine whether either the predecessor or the

successor State bears responsibility for such conduct. The commentary of the ILC on

Article 10 explains that “the attribution to the new State of the conduct of the

insurrectional or other movement is again justified by virtue of the continuity between the

organization of the movement and the organization of the State to which it has given rise.

Effectively the same entity which previously had the characteristics of an insurrectional

or other movement has become the government of the State it was struggling to establish.

The predecessor State will not be responsible for those acts. The only possibility is that

the new State is required to assume responsibility for conduct committed with a view to

its own establishment, and this represents the accepted rule.”69

23. If the secessionist territory remain unrecognized by the parent State in particular and the

international community in general, then it is not appropriate to speak about succession in

the responsibility matter under international law.

24. If the predecessor State recognized the quality of an insurgent movement to the

secessionist territory, then the provisions of the Article 10 will be applicable.

25. If the independence of the secessionist territory is recognized, then the rules regarding

succession to the rights and obligation for internationally wrongful acts of a new State 67 Kohen, G. Marcelo, ibid. p. 171 68 International Law commission, «Responsibility of States for internationally wrongful acts», 2001, Yearbook of the international law commission, 2001, vol. II; annexed to United Nation General assembly resolution 56/83 of 12 December 2001, UN Doc. A/56/49 69 Draft articles on Responsibility of States for Internationally Wrongful Acts, International Law Commission, Yearbook of the International Law Commission, 2001, vol. II, part II

27

under international law will be applicable.

28

PART IV: Unification of States

Draft Conclusion 6

Attribution of the responsibility of the successor State as a result of incorporation

(1) When one state is incorporated into another State and so forms one successor State,

the successor State shall be responsible for wrongful acts committed before the date

of succession by the successor State.

Attribution of the responsibility of the successor State as a result of merger

(2) When two or more States unite and so form one successor State, the successor State

shall be responsible for wrongful acts committed by the predecessor States which

ceased to exist subject to the successor State consent.


(3) Draft conclusion 1 and 2 do not apply if the State concerned otherwise agree during

the process of the unification.

Comment

1. “Unification of States” refers to the situation where two or more States unite to form one

successor State, irrespective of whether the successor State is a new State or whether its

personality is identical to that of one of the States which have united. This situation

corresponds to the category of “uniting of States” which was used by the ILC in the 1974

Draft Articles on the Succession of States in respect of Treaties70, and the 1983 Draft

Articles on Succession of States in respect of State Property, Archives and Debts.71 This

term has been employed in the 1974 Vienna Convention on Succession of States in

70 Articles 30 to 32 in the Part IV titled “Uniting and Separation of States”, Draft Articles on the Succession of States in respect of Treaties with commentaries, Yearbook of the International Law Commission, 1974, Vol. II, Part Two. The 1974 Draft Articles on the Succession of States in respect of Treaties and the 1978 Vienna Convention does not distinguish between separation and unification, and provides the same rules in both cases. In this regard, it is noted that previously existing Conventions in respect of State succession do not fully or accurately depict the different hypotheses of State Succession. State Succession in Matters of State Responsibility, Provisional Report (prepared by Marcelo G. Kohen), Institute de Droit International, 14th Commission, para 33. 71 Articles 15, 27 and 39, titled “Uniting of States”, Draft Articles on Succession of States in respect of State Property, Archives and Debts with commentaries, Yearbook of the International Law Commission, 1981, Vol. II, Part Two.

29

respect of Treaties72 and the 1983 Vienna Convention on Succession of States in respect

of State Property, Archives and Debts.73

2. The 1999 Draft Articles on Nationality of Natural Persons in relation to the Succession of

States provide different categories of succession of States in Part II, and the term ‘uniting

of States’ previously adopted by the ILC was replaced by ‘unification of States.’74

During the meeting of the forty-ninth session of the ILC, the Special Rapporteur Mr.

Mikulka introduced a definition of the term ‘unification of States’ covering two situations:

“the merging of two States into a single new State and the absorption of a State by

another in conformity with international law, annexation by force being of course

precluded.”75 Accordingly, ‘unifications of States’ may refer to the situation of the

uniting of States aiming at the creation of a new State, which predecessor States both

ceased to exist, as well as the situation of incorporation of a State into another existing

State.76 The proposed conclusion will follow this approach.

3. The abovementioned draft conclusion deals with a succession of States arising from the

unification of two or more States which had separate international personalities at the date

of the succession.77 As reflected in the phrase “irrespective of whether the successor

State is a new State or whether its personality is identical to that of one of the States

which have united”, this also covers the case where one State merges with another State,

even if the international personality of the latter continues after they have united. The

reunification of divided States, therefore, through the incorporation of one State into

another, which result in the continuity of one predecessor State and the other cease to

exist is also included in this category; the enlarged successor State continues its prior

legal personality in such a case. This is consistent with the perspective taken by the

Special Rapporteur on the 1999 Draft Articles on Nationality of Natural Persons in

72 Vienna Convention on Succession of States in respect of Treaties, 17 ILM (1978) 1488. 73 Articles 16, 29, and 39 of the Vienna Convention on Succession of States in respect of State property, Archives and Debts, 22 ILM (1983) 306. 74 Draft Articles on Nationality of Natural Persons in relation to the Succession of States with commentaries, Yearbook of the International Law Commission, 1999, Vol. II, Part Two. 75 Summary records of the meeting of the forty-ninth session, Yearbook of the International Law Commission, 1997, Vol. I, p. 106, para 39. 76 In practice, a distinction can be drawn between unification of States and incorporation of one State into another: whereas the predecessor State ceases to exist in the former case, in the latter case only the incorporated State ceases to exist and the enlarged (successor) State continues its prior legal personality. State Succession in Matters of State Responsibility, Provisional Report (prepared by Marcelo G. Kohen), Institute de Droit International, 14th Commission, para 35. 77 Report of the Commission to the General Assembly, Yearbook of the International Law Commission, 1974, Vol. II, p. 253, para 1.

30

relation to the Succession of States, as Stated in the above paragraph.

4. The uniting may lead to a wholly united State, to a federation or to any other form of

constitutional arrangement.78 The case of the emergence of a newly independent State

from the combining of two or more territories, not already States at the date of the

succession does not fall under this category. The case of the transfer of a mere territory to

an existing State also does not fall under this category. The succession of States

envisaged in the present articles does not take into account the particular form of the

internal constitutional organization adopted by the successor State.

5. The proposed draft conclusion is based on State practice in the twentieth century.

Reference will not be made in the course of this commentary to the nineteenth century

cases, such as an international arrangement in the context of the union of Belgium and the

Netherlands, the unification of Italy, the union of Austria and Hungary, and the uniting of

the Central America States.79 Insofar as cases in the nineteenth century are not dealt with,

cases of unification of States since the twentieth century are not abundant. Moreover, the

very relevant modern practice whether the obligation is transferred to the successor State

is difficult to find, and is not consistent. Accordingly, the issue of succession of States to

international responsibility has been rarely addressed both in practice and in theory. As

noted by James Crawford, the Special Rapporteur on the Draft Articles on the

Responsibility of States for Internationally Wrongful Acts, “[i]n the context of State

succession, it is unclear whether a new State succeeds to any State responsibility of the

predecessor State with respect to its territory.”80

6. United Arab Republic: Egypt and Syria, each an independent State and Member of the

United Nations, proclaimed themselves in 1958 one State to be named the “United Arab

Republic.”81 The Provisional Constitution of the United Arab Republic, of 5 March 1958

does not provide any explicit provision as regards succession to responsibility of the two

predecessor States.82 Although Article 70, which deals with debts of the two predecessor

78 Ibid., para 2. 79 Report of the ILC on the work of the 33 session, pp. 105-107. 80 Patrick Dumberry, “The Controversial Issue of State Succession to International Responsibility Revisited in Light of Recent State Practice”, 49 German YBIL, 2006, pp. 413-4. 81 In practice, however, Egypt and Syria were generally recognized as in some measure retaining their separate identity as distinct units of the United Arab Republic. Report of the Commission to the General Assembly, Yearbook of the ILC, 1974, Vol II, p. 255, para 13. 82 Text available in E. Cotran, “Some Legal Aspects of the Formation of the United Arab Republic and the United Arab States”, 8(2) ICLQ (1959), pp. 374-387.

31

States, may be interpreted as agreeing with an eminent authority that the United Arab

Republic would seem to have been the only entity competent to service the debts of the

two regions83, it remains silent on whether the responsibility for obligations shall transfer

from a predecessor to a successor State.

7. Uniting of Vietnam: Following the 1954 Agreement on the Cessation of Hostilities

between the belligerent forces of France and the Democratic Republic of Vietnam (DRV),

Vietnam was divided into two States by a “provisional military demarcation line”, namely

the DRV in the North and the Republic of Vietnam (RVN) in the South. There existed

two governments of South Vietnam, each recognized by several States. On 30 April 1975,

the military forces of the Provisional Revolutionary Government in the RVN succeeded

in toppling the interim government. Not long after that, the new National Assembly of the

RVN (a legislative body) sat together with the National Assembly of the DRV and

decided to hold a joint general election on a nation-wide scale. The newly elected

National Assembly upon its election changed the name of the united Vietnam into the

Socialist Republic of Vietnam (SRV). So, this is a case of merging of two predecessor

States to form a successor State. The question concerned is therefore whether the rights

and duties of the predecessor States, namely North Vietnam and South Vietnam, were

transferred to the SRV as a successor State.

8. The South Vietnamese government was alleged of having expropriated several properties

of US nationals and investors which were left behind in the haste to flee from the country

shortly before 30 April 1975.84 Investigations conducted by the US Foreign Claims

Settlement Commission estimated the total value of expropriated properties amount up to

US$99 billions, plus interest.85 In the meantime, several assets belonging to the RVN

held by US banks had been frozen under the regulations of the Secretary of the Treasury

on April 30, 1975. To settle these expropriation claims, on 28 January 1995, the united

Vietnam and the United States of America concluded the Agreement concerning the

settlement of certain property claims. By this Agreement, Vietnam promised to pay in full

the compensation claims by US nationals, in other words, accepting full responsibility for

wrongful acts of expropriation committed by its predecessor State.86 In return, the United

83 Report of the ILC on the work of the 33 session, p. 107. 84 US Foreign Claim Settlement Commission, Final report of Vietnam Claims Program, 28. 85 Ibid. 36. 86 Agreement between the Government of the United States of America and the Government of the Socialist Republic of Vietnam concerning the settlement of certain property claims, 28 January 1995.

32

States was required to release the 240 million worth assets of South Vietnam held in US

banks.

9. Since too little literature was written about this country case, it was impossible to detect

any opinio juris of the Vietnamese government regarding succession to State

responsibility. However, in light of its outright rejection of succession to debts and other

financial obligations,87 it is unlikely that Vietnam would accept an automatic transfer of

State responsibility.

10. Yemen and Tanzania: The Yemen Arab Republic (north Yemen) and the People’s

Democratic Republic of Yemen (south Yemen) merged together on May 26, 1990 to form

a single State called the Republic of Yemen. Whereas, Tanganyika and Zanzibar, then

two newly independent States, united in 1964 to form a new Republic of Tanzania. In

both cases, it was impossible to find Statement on behalf of the successor States with

regards to succession to State responsibility. The only Statement made by both countries

was with regards to treaty succession. Yemen confirmed in a letter addressed to the

Secretary – General of the United Nations on May 19, 1990 that “all treaties and

agreements concluded between either the Yemen Arab Republic or the People’s

Democratic Republic of Yemen and other States and international organizations in

accordance with international law which are in force on 22 May 1990 will remain in

effect [...]”88 Likewise, for Tanzania, all predecessors’s treaties would remain in full

force and effects “with the regional limits prescribed on their conclusion and in

accordance with the principles of international law”. This condition is considered

appropriate by James Crawford since it only expresses a limitation on continuity arising

from the objective incompatibility of the treaty.89

11. Reunification of Germany: Treaty on the Establishment of German Unity was signed

between the German Democratic Republic (GDR) and the Federal Republic of Germany

(FRG) on 31 August 1990 for the unification of the two States by 3 October 1990.90

According to Article 1 of this treaty, the GDR ceased to exist as an independent State and

its territory comprising five Länder was incorporated (or integrated) into the already

87 Dieter Papenfub, “The fate of the international treaties of the GDR within the framework of German unification”, 92 American Journal of International Law (1998) 475. 88 Agreement on the Establishment of the Republic of Yemen, 30 International Legal Materials (1991) 820 89 Draft articles on Succession of States in respect of treaties with commentaries, commentary to draft article 32. 90 Treaty on the Establishment of German Unity, 31 August 1990, in 30 I.L.M., 1991, p. 457.

33

existing FRG.91 Reunification of two Germany is generally considered as “unification”

of States. However, it was not a merger of States since no new State was created in the

process.92 In a strict legal parlance, it was a case of the integration of one State into

another already existing State, which continued its legal personality under international

law.93 There was a continuity of State between the FRG before and after the accession of

the Länder forming the GDR.94 However, this case still falls in this category, as

‘unification of States’ includes the case of the incorporation of one State into another in

conformity with international law, irrespective of the continuity of one predecessor State.

12. Article 24(1) of Treaty on the Establishment of German Unity provides: “in so far as they

arise from the monopoly on foreign trade and foreign currency or from the performance

of other State tasks of the German Democratic Republic vis-à-vis foreign countries and

the Federal Republic of Germany up to 1 July 1990, the settlement of the claims and

liabilities remaining when the accession takes effect shall take place under instruction

from, and under the supervision of, the Federal Minister of Finance.”95 This provision is

interpreted as indicating that the FDR will endorse claims of third States regarding

“claims and liabilities” arising from “the performance of State tasks” by the GDR.96

However, whether this provision also indicates and could be interpreted as the acceptance

by the FRG of obligations arising from internationally wrongful acts committed by the

GDR remain controversial.97

13. The specific issue in relation to Germany unification was whether FRG are responsible

for restitution and compensation for acts of expropriation and nationalization which had

91 Article 1 of the Treaty on the Establishment of German Unity provides that “upon the accession of the German Democratic Republic to the Federal Republic of Germany…. the Lander of the German Democratic Republic shall become Lander of the Federal Republic of Germany.” 92 Patrick Dumberry, State Succession to Rights and Obligations arising from the Commission of Internationally Wrongful Acts in International Law, Institute Universitaire de Haute Etudes Internationales, These No. 703 (2006), p. 111. 93 Ibid. Kay Hailbronner, “Legal Aspects of the Unification of Two German States”, 2(1) EJIL 1991, p. 33. 94 Dumberry, op. cit., p.112. 95 Treaty on the Establishment of German Unity, 31 August 1990, in 30 I.L.M., 1991, p. 457. 96 Dumberry, op. cit., p. 113. 97 Some authors in favor of interpreting it as involving the obligation are: Stefan Oeter, “German Unification and State Succession”, 51(2) ZaöRV, 1991, p. 381. Brigitte Stern, “Responsabilité internationale et succession d’Etats”, in Boisson de Chazournes, L. Gowland-Debbas, V., The International Legal System in Quest of Equity and Universality : Liber Amicorum Georges Abi-Saab (2001), p. 352. Some authors on the contrary interpret the provision as not dealing with the question of succession to obligations arising from the commission of internationally wrongful acts, but limit the scope of this provision to “international contractual obligations”. Peter E. Quint, “The Constitutional Law of German Unification”, 50 Md. L. Rev., 1991, p. 534.

34

been committed by the GDR after 1949 and before the unification.98 The relevant

question was addressed in a decision of 1 July 1999 by the Federal Administrative Court

(Bundesverwaltungsgericht). In this case, the court rejected the responsibility of the FRG

for obligations arising from internationally wrongful acts, which was the expropriation of

real property, committed by the former GDR against a Dutch national. At the same time,

however, the court stated that the unfulfilled obligations of the GDR to pay compensation

to the injured individual had now passed to the successor State because the expropriated

property was now part of “unified” Germany.99 This case provides an exception to the

traditional approach of non-succession.

14. In a case of unified Germany, as a matter of principle, the obligations arising from

internationally wrongful acts committed by the FRG continues along with the continuity

of its legal personality after unification as a successor State. On the contrary, there has

been only one case which can be taken into account as an example where the successor

State decided to take over the obligations arising from internationally wrongful acts

committed by the predecessor State which ceased to exist (GDR).100 Moreover, this case

was indeed resolved as the predecessor State’s law, Property Act, was incorporated into

‘unified’ Germany.101 This practice shows that the issue may be resolved through internal

law, vis-à-vis the incorporation of the predecessor State’s law into ‘unified’ successor

State law. Nonetheless, it cannot be directly interpreted as an automatic transfer of the

obligation to the successor State.

15. Obligations arising from internationally wrongful acts committed by a predecessor State

cease to exist may be continue if there is an agreement between the successor State and

the third State. An agreement signed on 13 May 1992 by the FRG and the US concerning

“the settlement of certain property claims” may be an example. In this agreement, the

98 Regarding this issue, see Jonathan J. Doye, “A Bitter Inheritance: East German Real Property and the Supreme Constitutional Court’s ‘Land Reform’ Decision of April 23, 1991”, 13 Michi. J. Int’l L., 1992, p. 834. 99 BverwG 7 B 2.99, cited from Dumberry, op. cit., p. 116. The Court also Stated that the successor State’s obligation would be limited to the payment of compensation and not extend to the restitution of property. Thus, the claim was ultimately dismissed by the Court on the ground that the injured Dutch national had already received some sort of compensation for his lost property by the GDR. To the extent that the victim had no valid claim for expropriation against the GDR before date of succession, the Court simply decided that no such valid claim also existed against the FRG after the date of succession. 100 Dumberry, op. cit, pp. 114-9. 101 Law for the Settlement of Open Property Questions of 29 June 1990, which stipulates that assets which had been confiscated, expropriated or taken by the authorities of the former GDR should be restored to the former owners. This law also provides that in some circumstances restitution of property to owners is replaced by compensation.

35

FRG (the successor State) expressed its willingness to provide compensation for

obligations arising from internationally wrongful acts committed by the GDR between

1939 and 1976 with regard to lost properties of nationals of the United States. However,

this is an example where the successor State accepted to take over the obligations arising

from internationally wrongful acts committed by the predecessor State against a third

State based on a special agreement consented to, and this cannot be regarded as an

automatic succession of responsibility.102

16. The draft resolution on the State Succession in Matters of State Responsibility adopted by

the Institut de Droit International provides two relevant Articles on the situation of

unification of States. Article 11 deals with the case of ‘uniting of States’ and Article 12

provides the case of ‘incorporation of a State into another existing State.’ In this draft

resolution, the category of ‘uniting of States’ refers to the case when two or more States

unite and so form one successor State and, as a consequence of the unification, the

predecessor States ceases to exist.103 On the other hand, ‘incorporation of a State into

another existing State’ refers to the case when one predecessor State continues to exist.

The incorporation of a State into another existing State is a case in which only the former-

predecessor State ceases to exist. The existing State is its successor, but its personality

remains unchanged. Both Articles concluded that that the rights and obligations stemming

from the commission of an international wrongful act in relation to which a predecessor

State has been the author or the injured State pass to the successor State, irrespective

whether the very predecessor State ceased to exist or continued to exist.

17. There will be no difficulty in affirming that the rights and obligations stemming from the

commission of an international wrongful act by the predecessor State which continues to

exist, and has been the author or the injured State pass to the successor State. On the

contrary, in case of the predecessor State which ceases to exist, a successor State may

need to consent to transfer of obligations arising from the responsibility. The continuity of

the legal personality of the predecessor State pertains to the continuity of the obligations.

Although unified German provides a case transferring international responsibility of a

predecessor State ceases to exist arising from the commission of wrongful acts before the

State succession, it was resolved by internal law, through the way of incorporating the

102 Dumberry, op. cit., p. 119. 103 State Succession in Matters of State Responsibility, Provisional Report (prepared by Marcelo G. Kohen), Institute de Droit International, 14th Commission, paras 78-79.

36

predecessor State’s internal law to as successor State’s internal law. Meanwhile, the cases

of Vietnam and Germany unification are examples of consent of the successor State to

take over responsibility from the predecessor States for internationally wrongful acts.

Moreover, although there is not enough State practice in this regard, this analysis can be

drawn from the fundamental principle which necessitates the continuity of legal

personality of the subject which committed wrongful acts in order to satisfy the subjective

element of an attribution. As long as the subject attributable to wrongful acts ceased to

exist, there can be no continuity of responsibility unless otherwise consented.

37

PART V: Cession of a part of the territory

Draft conclusion 7

Transfer of a part of the territory of a State

Where a part of a territory for which a State exercises sovereignty not forming part of that

State is transferred to another State, the rights and obligations stemming from an

internationally wrongful act committed before the date of succession will not be transferred

to the successor State.

Comment

NON-SUCCESSION RULE/ NEGATIVE SUCCESSION

1. The Draft Conclusion deals with the rights and obligations stemming to the predecessor

State prior to succession and seeks to determine whether the successor is responsible for

such acts. However, the traditional view has been that there is a negative rule of non-

succession beginning from the 20th century. For instance, in the Robert E. Brown case104

the British annexed the Boer Republics in 1902, due to two prior denials the British-US

Claims Commission imputed responsibility to the South African government (predecessor)

and denied responsibility of the British government as successor State. The court

reiterated as follows:

“we are equally clear that the South African liability will never be passed to or was

assumed by the British government. Neither in terms granted at the time of surrender

of the Boer forces. Nor can there be found any provision referring to the assumption

of liabilities.”105

2. The above analogy seems somewhat supported though not absolute and one author has

reiterated, “only the State which has actually committed an internationally wrongful act

can or should be held responsible for it.”106

3. Various scholars converge in support of the rule of non-succession and deny that the

successor is responsible for the wrongful acts of the predecessor State as rights and 104 Robert E. Brown (US) v Great Britain (1923) 6 RIAA 120. 105 Ibid. pp. 129-130. 106 Daillier, Forteau and Pellet, Droit International Public (8th edition) 2009, 618-619.

38

obligations are not transferred but remain with the predecessor State, note must be taken

that the rule is not absolute entirely. Responsibility does not pass from the predecessor to

the successor State.107 James Crawford, a member of the International Law Commission

reiterated in the context of State succession that it is unclear whether a new State

succeeds to any responsibility of the predecessor State with respect to its territory.108 The

applicable rule is the principle of non-succession, whereby the successor is not bound by

the International wrongful acts committed by the predecessor State before the date of

succession.109

4. The above-enumerated views are not absolute and considered the correct view. Dumberry

notes that whether or not the succession of States takes over the obligations arising from

the international wrongful acts committed by the predecessor State depends on the

different factors and circumstances involved.110 Further elaborated by the 1924 Tripartite

Claims Commission that emerged from the Treaty between USA and the Austro-

Hungarian Empire which acknowledged the doctrine of State succession with respect to

responsibility was indeterminate throwing doubt on the negative succession rule.111

MOVING TREATIES FRONTIER RULE

5. Furthermore, the moving treaties frontier rule enumerates support for the above Draft

Conclusion and is recognized generally as a principle of customary international law.112

The rule has been explicitly included in the Convention on State Succession and is not a

rule of State succession. There is no transfer of rights and obligations stemming from a

predecessor State whose territory has been transferred to successor State holding the

successor State accountable. SR Waldock in his report on succession of States in respect

of treaties (1969) notes as follows:

“the rule provides that on a territory undergoing a change of sovereignty, it passes

automatically out of the treaty regime of the predecessor sovereign into the treaty regime of

the successor. It thus has two aspects one positive and the other negative. The positive aspect

107 G. Schwarzenberger, A Manual of International Law 88 (London 1967). 108 P. Dumberry Controversial Issues of State Succession to International Responsibility revisited in light of recent State Practice GYIL Vol 49 441 2006. 109 Ibid. p. 415. 110 Ibid. p. 420. 111 Administrative Decision No.1 (1927) 6 RIAA 203, 210. 112 SR Waldock Report on Succession in respect of Treaties (1972 I) YBIL C43.

39

is that the treaties of the successor State begin automatically to apply in respect of the

territory as from the date of succession. The negative aspect is that the treaties of the

predecessor State in turn cease automatically to apply in respect of the territory. The rule thus

assumes a simple substitution of one treaty regime for another.”113

The moving treaty frontiers rule serves to show territorial changes and there is no

jurisprudence of international courts on the matter to determine conclusively whether its

applicable with regard to cession of territory. However, the Harvard Draft highlights that

the rule has limits as to the object and purpose of the treaty and may render execution

impossible and the predecessor may apply article 61 of the Vienna Convention on the

Law of Treaties i.e. impossibility of performance, thereby terminating and withdrawing

from the agreement.114

CONTINUING STATE RESPONSIBILITY

6. There is another view advanced, that the continuing State remains responsible for

international wrongful acts committed before the date of succession. The proposition is

that where there is a transfer of part of the territory from the predecessor State to

successor, the predecessor State is not extinct but continues to exist after cession and

therefore remains responsible for acts committed before the date of succession. As a

matter of principle, the continuing State should continue its previous responsibility for

these acts notwithstanding the transformation affecting the territory. This principle is

supported in doctrine.115 However, the principle applies to acts committed before the date

of succession and does not elaborate further, leading to a presumption that the successor

is responsible for the acts committed after the date of succession as it forms part of its

territory. Further to these, the consent of the successor State plays a crucial role in

transferring the rights and obligations to the successor State.

7. The lighthouse Arbitration case116 serves as an illustration of the principle of the

continuing State remaining responsible for its internationally wrongful acts committed

before the date of succession. The Arbitral Tribunal’s reasoning seems appropriate in

113 SR Waldock Second Report on Succession in Respect of Treaties (1969 II) YBIL C53. 114 Vienna Convention on the Law of Treaties “ A Commentary” Eds Oliver Dorr and Kirsten Schalenbach Springer Heidelberg 2012 p. 500. 115 Sir Robert Jenning and Sir Arthur Watts, Oppenheim’s International Law, Vol 1 (Peace: Introduction and Part 1) 9th Edition , London Longman 1996 p. 227. 116 Lighthouse Arbitration Case Award 24/27 July 1956 ILR, 1956 p. 81.

40

claim No 12, whereby France sought compensation against Greece for acts directly

committed by the Ottoman Empire (predecessor). It was held by the tribunal that no

internationally wrongful act had been committed in the case presented before it and added

that if the Ottoman Empire had actually committed the wrongful act, then Greece could

not be held liable. Further, the tribunal reasoned that Turkey as the continuator of the

Ottoman Empire should compensate the injured French company for its “own’ acts

committed before the loss of the portion of its territory.

8. It should be noted that State practice entailed that cession would be implemented through

agreement between the predecessor and successor State. The transfer of rights and

obligations pertaining to the above relationship meant that the rights and obligations with

respect to the wrongful acts were not passed automatically to the successor. Thus, the

consent or agreement that the successor would take over the responsibility would ensure

rights and obligations were transferred. In light of this, there is evidence to the contrary

which States that the rule is not absolute and there are exceptions to the general rule of

non-succession meaning no transfer of rights and obligations to the successor State.

Draft conclusion 8

Special circumstances

Notwithstanding the preceding paragraph where special circumstances exist and the

international wrongful act has been committed by an autonomous State forming part of the

predecessor State prior to the date of succession the responsibility shall pass from the

predecessor to the successor State.

Comment

AUTONOMOUS TERRITORY RULE

1. The Draft Conclusion is concerned with the exception to the general rule of non-

succession which is the conduct of the autonomous territory that formed part of the

predecessor State’s territory prior to the date of succession and committed wrongful acts

engaging the responsibility of the successor State. The Draft Conclusion seeks to show

how the negative rule/non-succession rule is not absolute and there is a possibility of the

transfer of the rights and obligations of the acts committed by the ceded territory to the

successor State upon transfer. The Lighthouse Arbitration case is notable for its

41

articulated critique of the absolutist solutions both for and against succession with respect

to responsibility by rejecting the decisions of the Greek court in the Samos case and those

of the British-America Claims Commission in the Robert E. Brown and Hawaiian Claims

as follows:

“seen from this point of view the question of transmission of responsibility in the event of

territorial changes presents all the difficulties of a matter which has not yet sufficiently

developed to permit solutions which are both certain and applicable equally in all possible

cases. It is no less justifiable to admit the principle of transmission as a general rule than to

deny it. It is rather and essentially a question of a kind the answer which depends on a

multitude of concrete factors.”117

2. A very old example is mentioned in literature regarding the cession of territory in the

1343 between King Phillipe of France and Humbert, whereby upon the death of the latter

his territory (the Dauphine) was to pass to the second son of the King of France.

According to article 8 of the Treaty, the successor to Humbert was to pay all debts and

would be responsible for all liabilities arising out of “torts committed.” In doctrinal views

this example is seen as relevant to the issue of succession of obligations arising from the

commission of internationally wrongful acts.118 According to W. Czaplinski the old

treaty reflected an era when the territory of the State was seen as private patrimony of the

monarch and when a territory could be exchanged between sovereigns in contracts or as

part of succession.119

3. According to judicial cases there is an exception to the general principles regarding the

continuing State (in principle) remains responsible for its own internationally wrongful

acts committed before the date of succession. The exception States where succession

takes place and the wrongful act is committed by a local administration having great

autonomy from the predecessor State prior to the date succession. In such a case, the

successor State should be held responsible for the obligations arising from the

commission of such acts. The decision of the Arbitral Tribunal in the Lighthouse case

concerning Claim No4 and the decision of the Court of the Aegean Islands (Greece) in

117 Ibid. footnote 13 p. 90. 118 P. Dumberry State Succession to International Responsibility Leiden Boston Martinus Nijhoff (2007) p. 135. Ernest H. Feilchenfield described the case as an illustration that there is no general custom exempting tort obligations from the rules of succession. For Michael John Volkovitsch p. 2176, this example expressly provides for the transfer of liabilities for international delicts from the predecessor to the successor. 119 W. Czaplinski, State Succession and State Responsibility CYBIL 28 1990 341.

42

the Samos (Liability for Torts)120 case try to offer guidance.

4. In Claim No.4 regarding tax exemptions granted to a Greek Shipping Company and its

ship the Haghios Nicolas by a law proclaimed by the local authorities of Crete in 1908,

thus, in 1913 the island became officially part of Greece, the law remained in place. This

tax exemption was alleged by the French company to be in violation of its existing

concession rights and therefore sought reparation from Greece. The Arbitral Tribunal

indicated that the Liability of Greece should not be based on the Lausanne Peace Treaty

because it dealt with the rights and obligations of Turkey not Crete. The Tribunal held

that liability could result only from the transmission of responsibility in-accordance with

the rules of customary law or the general principles of law regulating succession of States

in general.121

5. It should be noted that the Greek government by not removing the tax exemption law was

taken as adopting the conduct as its own as the Greek government had infringed the rights

of the French Company as well. For instance the Arbitral Tribunal reiterated as follows:

“the Tribunal can only come to the conclusion that having adopted the illegal conduct of the

Crete in its recent past as an autonomous State is bound as successor State to take upon its

charge the financial consequences of the breach of the concession contract.”122

6. The special circumstances of the case merited the court to decide that the Greek

government (Successor State) was responsible for the wrongful conduct thus the rights

and obligations were transferred to the successor due to the continuation and adoption of

the conduct.

7. Scholars have conflicting views regarding the Lighthouse Arbitration case, some State

that Greece was found liable for its own acts committed after cession of the territory of

Crete as well as for those committed before such cession (as successor State)123 this

position was supported by James Crawford Special Rapporteur and member of the

International Law Commission.124 Other scholars believe that Greece was only found

120 Samos (Liability for Tort) Case, Greece Court of the Aegean Islands, 1924 No 1927 in: Themis Vol 35 p. 294, in Annual Digest, 1923-1924 at p. 70. 121 Lighthouse Arbitration Case Award 24/27 July 1956 ILR, 1956 p. 90. 122 Ibid. footnote 18 p. 92. 123 Michael Volkovitsch, Towards a new Theory of State Succession to Responsibility for International Delicts CLR 92 1992 p. 2190. 124 First Report on State Responsibility (addendum No.5) by Mr James Crawford Special Rapporteur 22 July 1998 UNDoc A/CN/4/490 Add 5 at para 282: In the Lighthouse Arbitration a Tribunal held Greece liable for breach of a Concession Agreement initiated by Crete at a period when the latter was an autonomous territory of

43

responsible for its own acts committed after 1913.

8. The autonomous rule has also found credence in the Samos Liability for Tort Case in the

context of the cession of Aegean Island to Greece. It concerned damage allegedly caused

by customs officials of the Island of Samos at the time it was still under Ottoman Rule.

The court held that the Greek State was substituted with the former principality of Samos

and deemed responsible for the injurious acts before the date of cession. Doctrine has

explained that the autonomous status which the island enjoyed prior its succession to

Greece in 1913 and the fact that its absorption in Greece did not involve a total abolition

of the local administration.

9. Both cases mentioned above support the principle that whenever an international

wrongful act is committed by a largely autonomous government before the date of

succession it should be for the successor State and not the continuing State to be held

responsible for obligations arising from such acts. Therefore, it can be presumed that as

long as the successor State continues the act and acknowledges or adopts the wrongful

conduct as its own it will become responsible for its illegal conduct and that of the

predecessor. Whether the international wrongful conduct is committed before or after the

date of succession there is not sufficient practice both internationally (limited) only

domestic municipal court judgments which act as establishing the minimum thresholds.

The Lighthouse Arbitration case indicated specifically that this precedent (as well as

others) was not conclusive, the Tribunal does not attach a decisive importance to the rare

and disparate precedents of international and municipal courts.125

10. Agreement by the successor State has been shown to be of paramount importance

regarding the transfer of rights and obligations from the predecessor to the successor.

However, it is not clear where the successor State denies responsibility or does not

acknowledge or adopt the conduct as its own. Volkovitsch notes that “States are far less

likely to accept transfer of State responsibility where the predecessor State remains extant.

A clear line of practice and precedents demonstrates that primary responsibility in such

cases remains with the predecessor State and that former colonies and victims of

occupation will only be held responsible for their predecessor’s delictual liability if they

the Ottoman Empire, partly on the basis that the breach had been endorsed by Greece. 125 Lighthouse Arbitration Case Award 24/27 July 1956 ILR, 1956 p. 91.

44

have expressly agreed to assume it.”126

126 James Crawford, State Responsibility Cambridge Studies in International and Comparative Law General Part Cambridge University Press 2013 p. 455.

45

ANNEX I Draft conclusions on State Succession in respect of State Responsibility

PART I: Newly Independent States

Draft conclusion 1

Transfer of State responsibility to newly independent States

(1) Subject to the following draft conclusions, there is no transfer of State responsibility to

the newly independent State for internationally wrongful acts committed by the

predecessor State.

(2) A newly independent State may accept responsibility for internationally wrongful acts

committed by the predecessor State before its independence, subject to the agreement of

all affected third States.

(3) An internationally wrongful act committed by a liberation movement is transferred to the

newly independent State, if such liberation movement is recognized as the government of

the newly independent State.

(4) A liberation movement may agree to accept responsibility for internationally wrongful

acts committed by the predecessor State.

PART II: Dissolution of States

Draft conclusion 2

Definition of dissolution

In case of dissolution, a State ceases to exist and it is replaced by two or more successor

States which take responsibility for the international relations of the territory of the

predecessor State.

Draft conclusion 3


(1) Successor States may conclude an agreement with the injured State in order to settle the

consequences of the internationally wrongful acts committed by the predecessor State

towards that injured State.

46

(2) Nothing prevents the successor States from agreeing between themselves in order to

settle the consequences of any internationally wrongful act, committed by the predecessor

State.

(3) In concluding the agreements in paragraph 1 and 2 States should be guided by the

principles of proportionality, territoriality and good faith as expression of equity and

fairness.

Draft conclusion 4

Conduct acknowledged and adopted by a State as its own

If a successor State has unilaterally acknowledged and adopted the wrongful conduct of the

predecessor State as its own, its international responsibility is engaged.

PART III: Secession of States

Draft conclusion 5

Definition of Secession:

(1) Secession can be defined as the separation of a part or section of the territory of a State

with the intention to create a new State or joining another State.

General rule of non-succession

(2) Rights and obligations for internationally wrongful acts of the predecessor State as the

author will not succeed to the successor State in the case of secession of one part of the

territory of a State with the intent to create a new independent State, if the predecessor

State continues to exist.

Exceptions

(3) Rights and obligations arising from an internationally wrongful act of a predecessor State

will transfer to the successor State in circumstances where there is a direct connection

between the internationally wrongful act committed and the territory or the population of

the successor State.

(4) The rights and obligations of an internationally wrongful act carried out by an organ or

entity of an administrative unit of a predecessor State that subsequently becomes a part of

the successor State will succeed to the successor State.

47

(5) A successor State may agree to fulfill the rights and obligations in relation to any

internationally wrongful acts of the predecessor State.

(6) It will be considered an act of a new State under international law if the conduct of a

movement, insurrectional or other, succeeds in establishing a new State in part of the

territory of the predecessor State or in a territory under its administration.

PART IV: Unification of States

Draft Conclusion 6

Attribution of the responsibility of the successor State as a result of incorporation

(1) When one state is incorporated into another State and so forms one successor State, the

successor State shall be responsible for wrongful acts committed before the date of

succession by the successor State.

Attribution of the responsibility of the successor State as a result of merger

(2) When two or more States unite and so form one successor State, the successor State shall

be responsible for wrongful acts committed by the predecessor States which ceased to

exist subject to the successor State consent.


(3) Draft conclusion 1 and 2 do not apply if the State concerned otherwise agree during the

process of the unification.

PART V: Cession of a part of the territory

Draft conclusion 7

Transfer of a part of the territory of a State

Where a part of a territory for which a State exercises sovereignty not forming part of that

State is transferred to another State, the rights and obligations stemming from an

internationally wrongful act committed before the date of succession will not be transferred

to the successor State.

Draft conclusion 8

Special circumstances

48

Notwithstanding the preceding paragraph where special circumstances exist and the

international wrongful act has been committed by an autonomous State forming part of the

predecessor State prior to the date of succession the responsibility shall pass from the

predecessor to the successor State.

State Succession in Relation to State Responsibility

Documents

Transcript of State Succession in Relation to State Responsibility