CYIL vol. 9 (2018)

CEREN ZEYNEP PIRIM

CYIL 9 ȍ2018Ȏ

4. Proposal of a New Legal Basis in Designing the Law of State Succession to International Responsibility: General Principles of Law Authors who criticize the non-succession theory for standing in a very extreme position argue that ‘the future development of the law of State Succession ultimately depends upon avoiding the terms of this sterile debate’, 61 but in order to do so, it will have to rely on a new concept. ‘General principles of law’ seems to be the chosen one. Indeed, according to the modern approach, some rights and obligations of the predecessor State may devolve upon the successor while some others are not transferable, 62 every case should be treated differently in light of the general principles of law. The modern school refers particularly to two concepts, ‘acquired rights’ and ‘unjust enrichment’. The appropriateness of these principles which find their sources not in international law but in municipal law, with respect to the law of State succession to international responsibility is however questionable. A. Acquired Rights The concept of acquired or vested rights is a very controversial one which has always given rise to debates in the legal doctrine and in judicial practice both in international and municipal law. 63 Although there is no unique precise definition, it is generally accepted that acquired rights means ‘the protection of legally acquired individual rights against interference by the State’. 64 As for the principle of acquired rights in the law of State succession, it refers to the possibility of an alien to invoke the rights acquired under the law of the predecessor State, against the successor. 65 In other words, the acquired rights in the law of State succession means that the property rights and claims that the individuals possess as of the date of succession are respected by the successor State. 66 Hence, according to the acquired rights doctrine the change of sovereignty over a territory does not affect the rights of individuals. 67 A great number of lawyers attempt to base the law of State succession on the concept of acquired rights: Sayre, Cavaglieri, Makarov, Guggenheim, Garcia-Amador, Sohn, Baxter, O’Connell and Volkovitsch state that the change of sovereignty over a territory would not put an end to the individuals’ rights and that after the date of succession these rights would continue to exist under the legal order of the successor State. 68 The concept of acquired rights is considered by these authors as a general principle of law and thus an international law source applicable in the law of State succession. 61 Matthew Craven, “The International Law of State Succession” (2000) 2 International Law Forum du droit international 202, 203. 62 Lehner (n 11) 70. 63 Second Report on Succession in Respect of Matters other than Treaties, by Mohammed Bedjaoui, Doc. A/ CN.4/216/Rev.L, 1969 YILC , Vol. II, 69-101, at 71. 64 Ko S Sik, ‘The Concept of Acquired Rights in International Law: A Survey’ (1977) 24 Nethl. Int’l L. Rev. 120, 120-21. 65 Jacques Brossard, L’accession à la souveraineté et le cas du Québec (Presse de l’Université de Montréal 1976), 467. 66 O’Connell (n 11) 237. 67 Sik (n 64) 128. 68 Francis B Sayre, ‘Change of Sovereignty and Private Ownership of Land’ (1918) 12 AJIL 475, 495-97; Arrigo Cavaglieri, ‘La notion des droits acquis et son application en droit international public’ (1931) 38 Rev. gén. dr. int. public 257, 258-63; Alexander M Makarov, ‘Les changements territoriaux et leurs effets sur les droits des particuliers’ (1950) 43 Annuaire I.D.I. 208, 220-22; Paul Guggenheim, ‘Les principes de droit international public’ (1952) 80 RCADI 1, 125; F. V. Garcia-Amador and others, Recent Codification of the Law of State Responsibility for Injuries to Aliens (A. W. Sijthoff 1974), 42; O’Connell (n 11) 240; Volkovitsch (n 46) 2203-14.

120