CYIL vol. 9 (2018)

CEREN ZEYNEP PIRIM CYIL 9 ȍ2018Ȏ Belgium from the Kingdom of Netherlands in 1830 48 and in the context of the secession of the German Democratic Republic from the third Reich in 1945. 49 Similarly, while the non- succession principle prevailed during the dissolution of Czechoslovakia in 1993, the principle of succession was generally applied in the context of the dissolution of Yugoslavia during the same period. Even in the cases of newly independent States, State practice concerning the succession to international responsibility is inconsistent. The principle of non-succession was applied in the context of the independence of India in 1947, of Ghana in 1957, of Indonesia in 1958, of Congo in 1960 and of Vanuatu in 1980 whereas the obligation to repair arising from the internationally wrongful acts of the ex-colonial predecessor States was largely transferred to Algeria in 1960 and to Namibia in 1990. 50 On the basis of these different practices, the argument according to which every case should be treated differently in light of the characteristics of the type of succession seems not to be realistic. The modern school criticizes secondly the actio personalis moritur cum persona argument provided by the non-succession doctrine. Dumberry states in that regard that the aforesaid argument results from the archaic concept of culpa in State responsibility which is not a necessary condition to determine the liability of a State under contemporary international law. 51 Similar reasoning is offered by Stern who believes that the law of State succession should be based on an objective responsibility conception which does not make reference to culpa. 52 There is no doubt that the removal of culpa is the key part of the Draft Articles on Responsibility of States for Internationally Wrongful Acts adopted by the ILC in 2001. The ILC’s work clearly rejects that fault constitutes a necessary element of the internationally wrongful act of a State, if by ‘fault’ one understands the existence of an intention to harm. 53 However, shouldn’t the actio personalis moritur cum persona argument be understood, under contemporary international law, as referring to the imputability of the internationally wrongful act to the State and not to a requirement of any ‘intention’ and thus to a mental element in terms of the primary obligation of that State? Similarly, the break-up of the USSR is considered as a case of ‘secession’ by the majority of scholars. Hélène Hamant, Démembrement de l’URSS et problèmes de succession (Bruylant 2007), 109-28. Patrick Dumberry, State Succession to International Responsibility (Martinus Nijhoff Publishers 2007), 150-6. 48 See Dumberry (n 47) 161-4. 49 For a contrary view see ibid 165-68. Dumberry argues that the secession of German Democratic Republic from the third Reich supports, in general, the principle of non-succession. Relying upon the fact that the obligations arising from the internationally wrongful acts of the third Reich were undertaken by the Federal Republic of Germany, he maintains that in cases of secession, the continuing State remains responsible for the acts committed before the date of succession. However, the opinio juri s on the rules applicable in succession cases cannot be clarified only on the basis of ‘which State paid reparation’ but also on the basis of ‘to which States the claims of reparation have been made’. In the case of Germany, the victims of the Nazi regime and the State of Israel claimed reparation not only from the Federal Republic of Germany but also from the German Democratic Republic. Besides, during the Potsdam Conference, it was maintained that the reparation claims of western States had to be honored by the Federal Republic, while the German Democratic Republic had to pay war reparations to the USSR. 50 For a very detailed analysis of State practice see Dumberry (n 47) . 51 Dumberry (n 33) 418. 52 Stern (n 33) 335. 53 ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001 YILC , Vol. II (Part Two), Commentary to Art. 2. See James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press 2008), 558.

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