Academic journal article The George Washington International Law Review

State Succession in Respect of International Responsibility

Academic journal article The George Washington International Law Review

State Succession in Respect of International Responsibility

Article excerpt

INTRODUCTION

The recent decision of the International Court of Justice in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), released February 3, 2015, contained no surprises regarding the decision on the merits. The judgment serves as an important pronouncement in favor of the argument that the responsibility of a State for wrongful acts might be triggered by succession, for example, the replacement of one State by another in its responsibility for the international relations of territory, in cases such as secession, dissolution, or unification of States. It also incurred debate on State succession in areas other than those codified in the 1978 Vienna Convention on Succession of States in Respect of Treaties and the 1983 Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, in particular, succession as it relates to State responsibility.

The responsibility of States for internationally wrongful acts and the succession of States are two important areas of general international law. Some of the governing rules, which are largely customary in nature, have been codified by the U.N. International Law Commission (ILC). To date, however, State responsibility and State succession have not been studied as a unified topic by the ILC.

The ILC adopted the Articles on Responsibility of States for Internationally Wrongful Acts in 2001. However, the Commission did not address the situation where a State's succession occurs following the commission of a wrongful act.1 This succession may occur by a responsible State or by an injured State. In other words, either the State that committed an internationally wrongful act, or the State that is victim of that act, which has been replaced by a successor State, could pursue succession.2 In both cases, succession gives rise to complex legal relationships. In this regard, it is worth noting that in the 1998 Report on State Responsibility by the Special Rapporteur, James Crawford, said that widely accepted opinion held that a new State generally does not succeed to any State responsibility of a predecessor State.3 However, the Commission's commentary to the 2001 Articles reads differently.4 It says that "[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."5 This difference seems to reflect that the traditional theory of non-succession to State responsibility is not always applicable.

The ILC also touched on the issue of responsibility in the context of its work on State succession during the 1960s. In 1963, Professor Manfred Lachs, then-Chairman of the ILC Sub-Committee on Succession of States and Governments, proposed inclusion of succession with respect to responsibility for torts as a sub-topic to be examined in relation to the discussion of succession of States.6 The inclusion of this issue inspired disagreement, which led the Commission to exclude the problem from the scope of the subtopic.7 Since that time, however, State practice and doctrinal views have developed further.

Traditionally, neither State practice nor doctrine provided a single answer to whether and under what circumstances a successor State may be responsible for an internationally wrongful act of its predecessor. In some cases of State practice, however, it has been possible to identify division or allocation of responsibility between successor States. This trend has been highlighted in recent practhe tice beginning in the 1990s, and may be reflected in decisions of the International Court of Justice from that period.8

This Article aims to demonstrate that the traditional view, according to which there is no succession in the field of State responsibility for internationally wrongful acts, no longer corresponds to the current status of international law. Beginning with a survey of the doctrinal views in Part I, this Article focuses on two main questions. …

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