CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ STATE SUCCESSION TO INTERNATIONAL RESPONSIBILITY A CRITICAL ANALYSIS… author, real treaties relate only to the matters in negotiation between the contracting parties and are wholly independent of their persons. In consequence, a real alliance attaches to the body of the state and subsists as long as the State whereas a personal alliance expires with him who contracted it. This distinction would a fortiori apply in the field of succession to international responsibility which is of a highly personal nature. Therefore, it seems that Roman Law’s universal succession thesis was seized in post-Grotius international law doctrine with the exceptions provided by Romans. This is to say that, even during the period when the universal succession theory was dominant in international law, it was admitted that the successor States would not inherit the obligations arising from their predecessors’ internationally wrongful acts because of the very personal nature of these acts. As mentioned above, the universal succession theory remained the dominant view in international law until the end of the 19 th century. However, it has been seen that it remained a theoretical proposition and was not supported by State practice. 27 As a matter of fact, the tabula rasa doctrine, based on the voluntarist approach to international law and elaborated at the end of the 19 th century refuted all the propositions of the universal succession theory advocating that the successor State does not inherit the rights and the obligations of its predecessor. In this context, Gareis, Cavaglieri, Focherin, Strupp, Keith, Zorn and Schonborn argued that the successor State may only voluntarily undertake the predecessor State’s engagements. 28 From this date on and under the influence of Hegelian theory of the State and Jellinek’s legal doctrine, 29 it was accepted that succession could not be handled in international law as it was in private law. 30 For example, Keith argued that in a case of State succession there is no legal continuity between the legal personalities of the predecessor and the successor States. 31 In this context, the connection between the State and its territory cannot be regarded as a relation between an individual and an object belonging to that individual. In Roman law, the heir is considered as an ab initio coparcener, whether or not this is desired, while in international law the successor State inherits its predecessor’s obligations only to the extent permitted by this latter. 32 Since then, the tabula rasa doctrine which in due course was referred to as the non-succession theory became the dominant view in international law. 33 29 According to Jellinek’s theory, the self-obligating will of States constitutes the basis of international law. The author argues that both the emergence and the disappearance of States are events that take place outside of legal science. See O’Connell (n 25) 113-4; Jochen Von Bernstorff, ‘Georg Jellinek and the Origins of Liberal Constitutionalism in International Law’ (2012) 4 Goettingen J. Int. Law 659, 669-73; Stephen Hall, ‘The Persistent Spectre: Natural Law, International Order and the Limits of Legal Positivism’ (2001) 12 EJIL 269, 282. 30 See Castren (n 11) 400. 31 Keith (n 20) 3-6. 32 Ibid. However, Keith believes that the predecessor’s rights are subject to a different legal regime than its obligations; the rights devolve upon the successor. 33 Charles de Visscher, Théories et réalités en droit international public (Pedone 1970), 189-90; James L Brierly, The Law of Nations, An Introduction to the International Law of Peace (Clarendon Press 1963), 160; Patrick Dumberry, ‘The Controversial Issue of State Succession to International Responsibility Revisited in Light of Recent State Practice’ (2006) 49 GYIL 413, 415; Jean-Philippe Monnier, ‘La succession d’Etats en matière de responsabilité internationale’ (1962) 8 AFDI 65, 86; Krystyna Marek, Identity and Continuity of States in Public International Law (Librairie Droz 1968), 10-3; Brigitte Stern, ‘Responsabilité internationale et succession 27 O’Connell (n 11) 14. 28 See Makonnen (n 26) 132.

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