CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ STATE SUCCESSION TO INTERNATIONAL RESPONSIBILITY A CRITICAL ANALYSIS… Reference to the concept of acquired rights is also made by the Permanent Court of International Justice who rejected, in the German Settlers case, the idea of automatic nullity of rights acquired under the law of the predecessor State in consequence solely of a cession of territory and stated that private rights acquired under existing law do not cease on a change of sovereignty. 69 The respect for acquired rights in international legal relations was also discussed in the case concerning certain German interests in Polish Upper Silesia. However, this was a discussion about the respect of acquired rights according to the treaty rules in question and not according to the general international law and the Court, pronounced the principle of respect for acquired rights without relating it to State succession. 70 The reference made to the principle of acquired rights in the international legal doctrine and the jurisprudence do not mean that its relevance in international law has not been called into question. On the contrary, several authors argued that the concept of acquired rights has an imprecise and fluid connotation, 71 that it undoubtedly fits with natural law theory but conflicts with the basic principles of contemporary international law 72 and that the respect for acquired rights has a more symbolic dimension than a real legal meaning. 73 It has been pointed out that as every social change affects acquired rights, 74 the protection of these rights cannot constitute a solid argument legally capable of assuring alone the transfer of the predecessor State’s obligation to make reparation to the successor State. 75 The concept was also rejected by the Report on Succession in Respect of Matters other than Treaties prepared by Bedjaoui, the Special Rapporteur of the ILC. After stating that the ambiguous and ineffective concept of acquired rights is not accepted by international law, the report concluded that this concept is even more incompatible with the law of State succession: the change of sovereignty over a territory results in the change of the legal order which is in force in this territory and thus causes the expiration of the rights acquired under this legal order 76 . In this context and because of the reluctance of States with regard to the regulation of the private rights of individuals by international law, proposals for the adoption of an article concerning acquired rights were rejected within the 1983 Convention. 77 The author of this article believes also that the applicability of the principle of acquired rights in the law of State succession in general and in the law of succession to international responsibility in particular, appears to be problematic, for two main reasons. 69 Advisory opinion on certain questions relating to settlers of German origin in the territory ceded by Germany to Poland [10 September 1923] PCIJ Rep. Series B no 6, p. 36. 70 Case concerning certain German interests in Polish Upper Silesia , PCIJ Rep. Series A no 7. See Sik (n 64) 130. 71 Mohammed Bedjaoui, ‘Problèmes récents de succession d’Etats dans les Etats nouveaux’ (1970) 130 RCADI 455, 531-32; Sik (n 64) 140-41. 72 See Samy Friedman, Expropriation in International Law (Stevens 1953), 126; Karl Strupp, ‘Les règles générales du droit de la paix’ (1934) 47 RCADI 257, 478. 73 Paul Tavernier, Recherches sur l’application dans le temps des actes et des règles en droit international public (LGDJ 1970), 242. 74 Georges Kaeckenbeeck, ‘La protection internationale des droits acquis’ (1937) 59 RCADI 317, 359 and 361. 75 Ibid. 76 Second Report on Succession in Respect of Matters other than Treaties, op. cit. , p. 99. 77 Castren Stahn, ‘The Agreement on Succession Issues of the Former Socialist Federal Republic of Yugoslavia’ (2002) 96 AJIL 379, 395. The Convention states in its Article 6 that ‘nothing in the present Convention shall be considered as prejudging in any respect any question relating to the rights and obligations of natural or juridical persons’.

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