CYIL vol. 9 (2018)

CEREN ZEYNEP PIRIM CYIL 9 ȍ2018Ȏ Authors supporting the traditional non-succession theory justified their view on different legal grounds. One of these grounds is the nature of international law based on the will of States. 34 Indeed, some theorists 35 argue that ‘when there is a change of sovereignty, the will of the former sovereign ceases to exist and the legal order of the State collapses’. To put it simply, according to this approach State succession constitutes a fracture and even a total break: 36 the extinction of the predecessor State results in the extinction of its rights and obligations; hence ‘the creditors lose their debtors’. 37 Another justification provided by the non-succession theorists which came to be widely accepted in the 20 th century 38 is the personal nature of the internationally wrongful acts ( actio personalis moritur cum persona ). It has been maintained that the violation of legal obligations by a State is a personal matter and thus the fate of the consequences of this violation cannot be perceived independently from the fate of the State. 39 In this context, Udina argued that ‘succession of States in international law is, by its nature, limited to some relationships which have not been enacted intuitu personae […]. The personal relationships cannot be transferred from one subject to another. […] In other words, relationships of this kind whose subjects are replaced by others cannot remain the same; forasmuch as they are strictly attached to the personality of their subject’. 40 In the same vein, Marek, Rousseau, Visscher and Delbez stated that according to the actio personnalis moritur cum persona principle, a State cannot be held responsible for ex delicto obligations of another State. The only responsibility that can be invoked is the one of the State which committed the internationally wrongful act. 41 The non-succession theory was the dominant approach in international legal doctrine until the Second World War. 42 In reality, it can be seen that State succession to international responsibility was subject to the same regime, both during the period where the universal succession thesis imported from the Roman Law was dominant and during the one where the non-succession approach was largely adopted. In other words, it has always been admitted that the successor State would not inherit the consequences of the internationally wrongful acts of its predecessor. d’Etats’ in Laurence Boisson De Chazournes and Vera Gowlland-Debbas (eds), The International Legal System in Quest of Equity and Universality / L’ordre juridique international, un système en quête d’équité et d’universalité. Liber amicorum Georges Abi-Saab (Martinus Nijhoff Publishers 2001), 330. 34 Castren (n 11) 397; Lucius Caflisch, ‘The Law of State Succession Theoretical Observations’ (1963) 10 Nethl Int’l L. Rev. 337, 359. 35 Monnier (n 33) 89; Louis Cavaré, Le droit international public positif , Tome I (Pedone 1967), 379; Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum (Telos 2006), 195. See Love (n 15) 377. 36 O’Connell (n 11) 238; H. A. Strydom, ‘Namibian Independence and the Question of the Contractual and Delictual Liability of the Predecessor and Successor Governments’ (1990) 15 S. Afr. YIL 111, 112. 37 O’Connell (n 11) 15. 38 Patrick Dumberry, ‘Is a New State Responsible for Obligations Arising from Internationally Wrongful Acts Committed before Its Independence in the Context of Secession?’ (2005) 43 Can. YB Int’l L. 419, 423. 39 Arrigo Cavaglieri, ‘Règles générales du droit de la paix’ (1929) 26 RCADI 311, 374. 40 Manlio Udina, ‘La succession des Etats quant aux obligations internationales autres que les dettes publiques’ (1933) 44 RCADI 665, 690. 41 Marek (n 33) 10-1; Charles Rousseau, Droit international public , Tome III (Sirey 1977), 505 ; De Visscher (n 31) 191; L. Delbez (n 19) 275. 42 Makonnen (n 26) 137.

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