CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ STATE SUCCESSION TO INTERNATIONAL RESPONSIBILITY A CRITICAL ANALYSIS… does not seem to fit with the law of State succession which does not aim at achieving an economic equilibrium between the parties but regulating the consequences of the change of sovereignty over a territory. And finally, it must not be forgotten that all restitution claims can be at some point justified by a broad conception of unjust enrichment which leads into the issue of whether this concept is over-theorized. 115 As a matter of fact, the ILC’s second report prepared by Professor Pavel Šturma, the special rapporteur, reminds that there is some doctrinal support for the principle of State succession to international responsibility based on the concept of unjust enrichment and that ‘the Institute of International Law refers to this principle as one of the criterias to be taken into consideration for the equitable apportionment of rights and obligations of the predecessor and successor States’. 116 However, the report also points out that there are very few cases referring to the principle of unjust enrichment that are not directly relevant, because they mostly concern State succession in respect of debts. 117 Thus, the second report of the ILC seems to advise that the principle of unjust enrichment should not be treated as the sole basis for State succession to international responsibility but should rather be taken into consideration as one of the criterias in order to decide whether or not the successor State will inherit the obligation to repair arising from the internationally wrongful acts of the predecessor State. 118 Conclusion As revealed above, while the traditional theory firmly rejects succession to international responsibility, the modern approach tries to find a legal ground which would be capable of transferring the obligation to repair arising from the internationally wrongful acts of the predecessor State to the successor State. This latter school reasons that the compensation of every victim of an internationally wrongful act is more important than the principle according to which States may be held responsible only for the acts that they have committed. In this context, this approach seems to have two main concerns: to provide stability in international relations 119 and to relieve the victims of the internationally wrongful acts. However, these arguments do not seem to amount to a concrete succession theory. Quite the contrary, by supporting the non-adoption of a uniform theory in the field of succession to the obligation to repair arising from internationally wrongful acts, the modern succession doctrine poses problems in terms of legal certainty. Besides, the author of this article believes that the starting point, the legal reasoning and the conclusion of the arguments put forward by the modern school have serious weaknesses and that the theoretical conceptions used to solve the problems addressed are not capable to achieve the objectives. The main concern of the modern approach seems to be, in a metaphorical sense, the protection of the ‘purity’ and the ‘innocence’ of the State which is the victimof the internationally wrongful act. It is argued that a State which succeeds the sovereignty over a territory continues, unlike in municipal laws, the personality of the predecessor and thus, the application of the 4.

115 Hedley (n 102) 585; Schreuer (n 104) 285. 116 Second report on succession of States in respect of State responsibility (n 7), par. 105. 117 Ibid, par. 106. 118 Ibid. 119 Makonnen (n 26) 139.

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