CYIL vol. 9 (2018)

CEREN ZEYNEP PIRIM CYIL 9 ȍ2018Ȏ It should however be noted that in Roman law, delictual actions were penal actions and in consequence once the perpetrator had died, no action was possible against his heir. 17 Yet with the exception that ‘where compensation was the sanction, the delinquent’s heir could be sued to the extent to which through succession he had been enriched by the delict’. 18 This Roman inheritance law approach was transferred to international law by Grotius 19 and from then on, cases concerning the disappearance of States were treated as if they were similar to the death of an individual. 20 According to Grotius, all rights and obligations of the predecessor State shall devolve upon the successor because the State is perpetual and immortal; hence although changes have occurred, its legal personality continues. 21 In other words, State’s rights and obligations are immutable. Therefore, in the event of any change of ownership of these rights and obligations, the entire heritage will be transferred to the new holder 22 and all of the legal relations will ipso jure devolve upon the successor State. 23 This thesis was also adopted by Gentili, Pufendorf, Vattel, Wheaton, Kent, Phillimore, Hall and Oppenheim. 24 Admittedly, the universal succession theory was discussed by all these philosophers within the context of ‘succession of governments’ instead of ‘succession of States’. As noted by O’Connell, a distinction between ‘change of government’ and ‘change of sovereignty’ could not have been made until the 19 th century because these changes were perceived in the sense of metaphysics. Such a distinction became possible only when lawyers understood the implications of Hegel’s personalization of the State. 25 It should be noted that the successors of Grotius adopted his universal succession approach, yet with some alterations. Vattel’s approach is of special importance for State succession to international responsibility. He made a distinction between a State’s ‘real’ and ‘personal’ treaty obligations and argued that the successor would succeed to all the rights and obligations of its predecessor apart from those with personal character. 26 According to the 17 A. J. B. Sirks, ‘Delicts’ in David Johnston (ed), The Cambridge Companion to Roman Law (Cambridge University Press 2015), 246; Matthew Craven, The Decolonization of International Law: State Succession and the Law of Treaties (Oxford University Press 2007), 31. 18 A. J. B. Sirks (n 17) 246. 19 Hugo Grotius, De Jure Belli Ac Pacis Libri Tres (Translation by Francis W. Kelsey) (Clarendon Press / Humphrey Milford 1925), 267-95. See Louis Delbez, Les principes généraux du droit international public. Droit de la paix, droit préventif de la guerre, droit de la guerre (LGDJ 1964), 272. 20 Arthur B Keith, The Theory of State Succession with Special Reference to English and Colonial Law (Waterlow and Sons Limited 1907), 2; Öktem (n 9) 563. 21 Grotius (n 19) book II, ch. IX, 310-320. See Love (n 15) 376. 22 O’Connell (n 11) 9. 23 Ibid; Castren (n 11) 398. 24 Alberico Gentili, De Iure Belli Libri Tres (Translation of the Edition of 1612 by John C. Rolfe) (Clarendon Press/ Humphrey Milford 1933), ch. XXII, 105-11; Samuel Von Pufendorf, De Jure Naturae et Gentium Libri Octo (Translation of the Edition of 1688 by C. H. Oldfather) (Clarendon Press/Humphrey Milford 1934), book VIII, ch. XII, 1360-9; Emmerich de Vattel, The Law of Nations: Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns (Cambridge University Press 1834), book II, ch. XII; Wheaton (n 11) 38-43; John T Abdy, Kent’s Commentary on International Law (Deighton, Bell and Co. 1866), 107; Phillimore (n 11) 169-79; Francis L Oppenheim, International Law. A Treatise , vol. I (Longmans, Green, and Co. 1905), 119-24; William E Hall, A Treatise on International Law (Clarendon Press 1924), 114-5. 25 Daniel P O’Connell, ‘Recent Problems of State Succession in Relation to New States’ (1970) 130 RCADI 95, 105-7. 26 Vattel (n 24), book II, ch. XII, 204. See on this point Yilma Makonnen, International Law and the New States of Africa: A Study of the International Legal Problems of State Succession in the Newly Independent States of Eastern Africa (Ethiopian National Agency for UNESCO 1983), 130; Wheaton (n 11) 40.

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