CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ STATE SUCCESSION TO INTERNATIONAL RESPONSIBILITY A CRITICAL ANALYSIS… However, this non-succession view’s dominance, not to say its monopoly, was challenged during the decolonization process, whenWestern States ‘had now to play the role of predecessor States while the ex-colonies assumed the role of successor States’. 43 In this context and around the desire of some western jurists who wished to reawaken the universal succession theory, 44 a change has occurred step by step in the conception of State succession and the idea of the inheritance of rights and obligations of the predecessor States by the successor States started to be supported again by scholars. Even if the legal doctrine of the 20 th century did not accept a return to the universal succession thesis, the settled position of the non-succession principle regarding the international responsibility of States was still brought into question for the first time in legal history. Indeed, some authors criticized the traditional theory for not taking into account the general principles of law 45 and put forward a new succession approach based especially on the concepts of ‘acquired rights’ and ‘unjust enrichment’, claimed to be general principles of law. 3. A Change of Perception on the Foundations of the Law Governing State Succession to International Responsibility Supported initially by Muralt, Feilchenfeld, Hyde, O’Connell, Castrén, Verzijl, Kelsen and Volkovitsch, and recently by Stern, Dumberry and Craven, the modern approach refutes both the universal succession thesis and the non-succession theory. This legal school initially argues that the question of whether the rights and the obligations arising from the internationally wrongful acts of the predecessor State devolve upon the successor need not have a uniform answer; every case should be treated differently in light of the characteristics of the type of succession and State practice. 46 However, the modern school’s proposition to adopt different solutions for every type of succession seems to be ignoring the fact that even in the same type of succession cases State practice is inconsistent. Indeed, a detailed analysis demonstrates that different and contradictory principles have been applied to date not only in cases of different types of succession such as incorporation, unification, dissolution, cession or secession but also in the very same type of succession cases. For instance, while the principle of non-succession was maintained during the break-up of the Austria-Hungary Monarchy in 1918 and the USSR in 1991, 47 the principle of succession was the general rule during the secession of 46 R de Muralt, The Problem of State Succession with regard to Treaties (The Hague 1954); Ernst H Feilchenfeld, Public Debts and State Succession (The Macmillan Company 1931), 689-90 and 728-9; Charles C Hyde, International Law Chiefly as Interpreted and Applied by the United States , Vol. I (Little, Brown and Company 1947), 437-8; O’Connell (n 25) 162-5; Castren (n 11); Jan H Verzijl, International Law in Historical Perspective , part VII (A. W. Sijthoff 1974), 219-28; Hans Kelsen, ‘Théorie générale du droit international public. Problèmes choisis’ (1932) 42 RCADI 117; Hans Kelsen, Principles of International Law (Holt, Rinehart and Winston, Inc. 1967); Michael J Volkovitsch, ‘Righting Wrongs: Toward a New Theory of State Succession to Responsibility for International Delicts’ (1992) 92 Colum. L. Rev. 2162, 2172-3 and 2198. 47 Whether the break-up of the Austria-Hungary Dual Monarchy constitutes a case of dissolution or a case of secession is controversial. The author of this article is of the opinion that it is one of secession of Poland, Czechoslovakia and Yugoslavia with both Austria and Hungary being the continuing States of the Monarchy. For a similar opinion, see Marek (n 33) 220; Brigitte Stern, ‘La succession d’Etats’ (1996) 262 RCADI 9, 43. 43 Ibid. 44 Ibid. 45 O’Connell (n 11) 28.

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