CYIL vol. 9 (2018)

CEREN ZEYNEP PIRIM CYIL 9 ȍ2018Ȏ Above all, an acquired right is defined as a right, which once it has been vested, must be respected. 78 In other words, it is a right which, once it has been vested, may not be altered or reduced by subsequent legislation because it has become a personal debt under the legal order which is in force in the territory.This refers also to the fact that according to the concept of acquired rights, in law the debt can only be opposed to the debtor. 79 However, the argument supporting the succession to international responsibility on the basis of the principle of acquired rights makes it possible to oppose personal debts not only to the debtors but also to the successor States which have different legal personalities than the predecessor, hence to all subjects of international law. Yet, in international law only erga omnes rights are owed towards all. 80 Secondly, the obligations arising from the internationally wrongful acts have an unliquidated nature and the transferability of such obligations has been questioned since the Brown case where the tribunal stated that ‘it has never been admitted that a successor State takes over liabilities of this nature, which are not for debts, but for unliquidated damages’. 81 Indeed, although some scholars supporting the principle of succession to international responsibility find the distinction between liquidated and unliquidated claims misguided, 82 such a distinction is not without merit. This is because unlike the liquidated damages which constitute definite, fixed, clearly ascertainable and concrete facts and thus vested rights intended to be protected by law, the unliquidated claims are no more than expectations which cannot bind the new sovereign against its will. 83 In other words, the right to reparation should definitely form part of the victim’s patrimony before the date of succession so that this right can be considered as acquired. In case not, the unliquidated claim brought by the injured third State before a judicial body after the date of succession for the damage suffered from an internationally wrongful act of the predecessor State, 84 would constitute a claim for respect of hopes and expectations rather than a claim for respect of rights. 85 As a matter of fact, several scholars 86 among which some of those supporting the principle of succession to international responsibility itself, argue that the concept of acquired rights 78 Pierre A Lalive, ‘The Doctrine of Acquired Rights’ in Matthew Bender (ed), Rights and Duties of Private Investors Abraod (Matthew Bender & Co. 1965), 145, 150. 79 For a similar opinion see Sik (n 64) 121. The author indicates that ‘the adjective ‘acquired’ really signifies a specific characteristic of the right, the concept is usable only if this characteristic can be clearly ascertained. The correct criterion has been sought in the title of acquisition, in the fact of the right being completely acquired by a specific subject of the law in a specific case, and in the quality of right in contradistinction to expectancies’. 80 Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (5 February 1970) ICJ Rep . [1970] 3, para 33. 81 R. E. Brown (United States) v. Great Britain [1923] 6 RIAA 120, p. 128. 82 According to Volkovitsch, ‘any attempt to distinguish conclusively between valid and invalid claims solely on the basis of whether or not they have been finally adjudicated and a fixed amount of damages determined is bound to encounter serious problems’ and be unequitable. Volkovitsch (n 46) 2191. 83 See Michael Waibel, ‘Brexit and Acquired Rights’ (2017) 111 AJIL Unbound 440, 444. 84 Dumberry (n 47) 214. The author argues that ‘the unliquidated nature of a claim should not prevent the injured third State from exercising its right to bring an action before a judicial body after the date of succession for the damage it has suffered from an internationally wrongful act committed by the predecessor State before the date of succession’. 85 For a similar opinion see Feilchenfeld (n 46) 728-29. The author argues that ‘as long as it is not certain that the State against which the claim is directed will have to pay compensation, the doubt concerns not merely the amount of the debt, but also whether or not a debt will be created at all. Unless it is clear that a compensation is owed, it is not established that a debt exists which may subsequently be protected in case of State succession’. 86 Malcolm Shaw, International Law (Cambridge University Press 2017) 758; Feilchenfeld (n 46) 728-29; Robert

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