CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ STATE SUCCESSION TO INTERNATIONAL RESPONSIBILITY A CRITICAL ANALYSIS… of the modern approach supporting the succession to international responsibility especially under the concepts of ‘acquired rights’ and ‘unjust enrichment’, claimed to be general principles of law. It should be noted that what is being discussed in this paper is whether the ‘successor’ States inherit the obligation to make reparation arising from the internationally wrongful acts committed by their predecessor. Admittedly, in a continuity scenario where after the date of succession one of the new entities continues the personality of the predecessor State, it is agreed that the continuing State which is ‘legally speaking, identical to the predecessor State’ 9 is automatically entitled to all rights and responsibilities of the predecessor State, namely those arising from treaties, debts and internationally wrongful acts 10 . Until the end of the 19 th century, the field of State succession was dominated by the ‘universal succession theory’ 11 which provided that the State absorbing the legal personality of a former State became the unique representative of all rights and obligations of the latter. 12 This conception has its origins in Roman law which foresees that the successor inherits not only a single res but all the patrimony ( iuris universitas ) of the predecessor. 13 So much so that in Roman law universal succession means the inheritance of all rights and obligations of the predecessor, including its debts and credits. 14 This thesis is based on the principle according to which ‘the legal personality and correspondingly the rights and obligations which are considered as originating from the natural law continue to exist even after death’. 15 Therefore, regarding the patrimony, the inheritor and the legator are considered to be the same person 16 which means that the patrimony of the inheritor and that of the legator interpenetrate and the inheritor becomes responsible for the debts of the latter. 9 Emre Öktem, ‘Turkey: Successor or Continuing State of the Ottoman Empire?’ (2011) 24 Leiden Journal of International Law 561, 564. 10 Ibid 565; Joseph L. Kunz, ‘Identity of States Under International Law’ (1955) 49 American Journal of International Law 68, 69-70. 11 Craven (n 5) 147-48; Erik Castren, ‘Aspects récents de la succesion d’Etats’ (1951) 78 RCADI 379, 398; Daniel P O’Connell, State Succession in Municipal Law and International Law , Vol. I (Cambridge University Press 1967), 10. For works supporting the universal succession theory during the aforesaid period see Henry Wheaton, Eléments du droit international (F. A. Brockhaus 1858), 38-43; Richard Wildman, Institutes of International Law , Vol. I (T. & J. W. Johnson 1850), 47; Robert Phillimore, Commentaries upon International Law , Vol. I (Butterworths 1871), ch. VII (Changes in a State), 169-79; Travers Twiss, The Law of Nations Considered as Independent Political Communities. On the Rights and Duties of Nations in Time of Peace (Clarendon Press 1884), 20-21; Oskar Lehner, ‘The Identity of Austria 1918/19 as a Problem of State Succession’ (1992) 44 Austrian J. Pub. Intl. L. 63, 69. 12 Charles G Fenwick, International Law (Appleton-Century-Crofts 1965), 173. 13 Herbert F Jolowicz and Barry Nicholas, Historical Introduction to the Study of Roman Law (Cambridge University Press 1972), 128-29. 14 Henry Black, Black’s Law Dictionary (Minn., West Publishing Co. 1968), 841; Alan M Prichard (ed), Leage’s Roman Private Law: Founded on the Institutes of Gaius and Justinian (Macmillan & Co. Ltd. 1961), 233. 15 Lucinda Love, ‘International Agreement Obligations after the Soviet Union’s Break Up: Current United States Practice and Its Consistency with International Law’ (1993) 26 Vand. J. Transnat’l L. 373, 376. 16 Black (n 14) 841. 2. From A Well Settled Principle of Non-Succession to International Responsibility to A Succession Approach

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