CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ STATE SUCCESSION TO INTERNATIONAL RESPONSIBILITY A CRITICAL ANALYSIS… In other words, the basic condition for responsibility of a State is the existence of an internationally wrongful act attributable to that State. According to the ILC’s Draft Articles ‘there is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State’. 54 And the act is attributable to the State when it is committed by the legislative, executive or judicial organs of that State or by a person or entity which is empowered by the law of that State to exercise elements of the governmental authority or under the instructions, direction or control of that State. 55 Apart from these circumstances, State responsibility can be invoked only if the State acknowledges and adopts the conduct in question as its own. 56 Whereas when a case of succession occurs, the imputability condition is not materialized. 57 The internationally wrongful act is neither committed by the organs of the successor State nor under its direction or control. It has also been suggested within the modern approach that a strict rule of succession to liability must apply in cases of delicts arising from violations of jus cogens. 58 According to Volkovitsch, the answer to the question of whether ‘the obligation to repair arising from an internationally wrongful act of the predecessor State devolves upon the successor State’ varies by the nature of the wrongful act. The author of this article has some doubts as to the compatibility of this approach with the principles of the law of State responsibility and with those of the law of State succession. Indeed, to determine whether there is succession or not according to the nature of the wrongful act technically means that the nature of the primary obligation which was violated by the predecessor State should be taken into account. Yet, in international law the violation of all primary obligations, whatever their nature, gives rise to the application of the same secondary rules. It is true that the Draft Article 41 provides different consequences for serious breaches of obligations arising under a peremptory norm of general international law. Hence, in case of breaches of jus cogens norms, not only the injured State, but all States can invoke the responsibility arising from the internationally wrongful act 59 . By this way, State responsibility which, in classical international law, is considered as creating a bilateral relationship, acquires a multilateral character. However, this exceptional regime does not affect the substance of the responsible States’ secondary obligations deriving from the breach. 60 As the succession to international responsibility concerns the succession to the secondary obligations of international law, as a matter of principle, the nature of the primary obligation which was violated by the predecessor State, technically has no importance.

54 Ibid Art. 2. 55 Ibid Art. 4, 5 and 8. 56 Ibid Art. 11.

57 This principle is underlined by the Draft Article 6 of Prof. Šturma, the special rapporteur, which provides that ‘succession of States has no impact on the attribution of the internationally wrongful act committed before the date of succession of States’. Second report on succession of States in respect of State responsibility (n 7). 58 Volkovitsch (n 46) 2200. 59 ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, Art. 48. 60 Ibid Art. 30, 31 and 43.

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