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) TABLE OF CONTENTS INTRODUCTION ..................................................................................................................... 3 PART I: Newly Independent States ........................................................................................... 4 Draft conclusion 1 .................................................................................................................. 4 PART II: Dissolution of States .................................................................................................. 9 Draft conclusion 2 .................................................................................................................. 9 Draft conclusion 3 .................................................................................................................. 9 Draft conclusion 4 ................................................................................................................ 17 PART III: Secession of States.................................................................................................. 20 Draft conclusion 5 ................................................................................................................ 20 PART IV: Unification of States ............................................................................................... 28 Draft Conclusion 6 ............................................................................................................... 28 PART V: Cession of a part of the territory .............................................................................. 37 Draft conclusion 7 ................................................................................................................ 37 Draft conclusion 8 ................................................................................................................ 40 ANNEX I. ................................................................................................................................ 45 2 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 3 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. 4 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 breakup 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. 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. 4 5 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 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 6 6 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 7 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 14 15 Ibid. 610 Ibid. 611 Ibid. 612 8 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 9 (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 10 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 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. 18 11 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 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. 22 12 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. 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. 27 13 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 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. 30 14 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 15 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 GabčíkovoNagymaros 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. 16 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. 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. 42 17 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 18 demanded on behalf of the community.49 49 Ibid.,p.359 19 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 20 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) 21 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 nonsuccession 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 1989 57 . 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 22 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 Gabčíkovo-Nagymaros Project, Hungary Slovakia. Judgement, I.C.J. Reports 1997, p.7. 61 Kohen, 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 60 23 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 63 64 Ibid. p. 169 Kohen, G. Marcelo, ibid. Gabčikovo-Nagymaros Project, Hungary Slovakia. Judgement, I.C.J. Reports 1997. 24 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 66 Namibia Constitution, 9 february 1990, in force from 21 march 1991 Dumberry, Patrick, ibid. p. 439 25 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 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 68 26 under international law will be applicable. 27 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. Principle of 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. 28 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. 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. 73 29 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. 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. 79 30 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. 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. 84 31 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. 32 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. 33 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. 34 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 formerpredecessor 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. State Succession in Matters of State Responsibility, Provisional Report (prepared by Marcelo G. Kohen), Institute de Droit International, 14th Commission, paras 78-79. 103 35 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. 36 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 nonsuccession 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 104 105 106 Robert E. Brown (US) v Great Britain (1923) 6 RIAA 120. Ibid. pp. 129-130. Daillier, Forteau and Pellet, Droit International Public (8th edition) 2009, 618-619. 37 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 AustroHungarian 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). 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. 108 38 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 case 116 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. 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. 114 39 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 nonsuccession 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 40 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. 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. 118 41 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 42 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. 43 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. 44 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 Principle of consent (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. 45 (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. 46 (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. Principle of 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 47 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. 48