CYIL vol. 9 (2018)

CEREN ZEYNEP PIRIM CYIL 9 ȍ2018Ȏ non-succession theory creates unreasonable results in several State succession cases. 120 As can be seen, the modern approach does not try to solve legal problems concerning the succession of States based on law, but rather through social and moral concepts. 121 Succession arguments provided within this approach seem to result from the broad concept of ‘equity’ with which the principle of acquired rights and that of unjust enrichment are both deeply intertwined. 122 However, despite its moral authority, the concept of equity itself is legally very problematic and is not capable on its own of creating legal rules. Equity, which is nowhere clearly defined, 123 has always been described by using highly subjective notions such as ‘justice’ and ‘fairness’ 124 and implies overall a feeling. 125 Indeed, even if an approach based on the necessity to compensate the damages of the victim State is adopted for the simple reason that this State is ‘pure and innocent’, one would ask whether the successor State who has a different legal personality than its predecessor is legally not as ‘pure and innocent’ as the victim of the wrongful act. This is to say that the compatibility of the concept of equity which is, in the meantime, not enumerated by Article 38(1) as a formal source of international law, 126 with the principle of legal certainty has always been controversial. 127 Hence, whether this concept can be used within the context of the law of State succession and as the legal basis of the transfer of the obligation to make reparation arising from the internationally wrongful acts of the predecessor State to the successor State is very questionable. 128 Finally, it seems to be wrong to reduce the matters to the question whether ‘it is more important that every victim of an international wrong be allowed a remedy or should States only be held liable for those acts that they can be truly said to have caused’. 129 The ‘remedy’ is not the starting point but the point of arrival of the law of State succession. Similarly, holding States responsible only for their own acts is not the purpose of the rules governing succession of States but rather a consequence of the theory of the State. The purpose of the law of State succession is not to compensate the victims or to protect the State’s rights but to 123 S. K. Chattopadhyay, ‘Equity in International Law: Its Growth and Development’ (1975) 5 Ga. J. Int’l & Comp. L. 381; Darien Shanske, ‘Four Theses: Preliminary to an Appeal to Equity’ (2004-2005) 57 Stan. L. Rev. 2053, 2068. 124 Christopher Grauer, ‘The Role of Equity in the Jurisprudence of the World Court’ (1979) 37 U.of T.Fac.L.R. 101; Chattopadhyay (n 123) 387; Shanske (n 123) 2068; Stephen W DeVine, ‘Polyconnotational Equity and the Role of Epieikeia in International Law’ (1989) 24 Tex. Int’l L.J. 149, 150; Sandrine Maljean-Dubois, ‘Le rôle de l’équité dans le droit de la succession d’Etats’ in Pierre M Eiesemann and Martti Koskenniemi (eds), La succession d’Etats: la codification à l’épreuve des faits / State Succession: Codification Tested Against the Facts (Martinus Nijhoff Publishers 2000), 140. 125 Maljean-Dubois (n 124) 140-41. 126 Mark W Janis, ‘Equity and International Law: The Comment in the Tentative Draft’ (1982-1983) 57 Tul. L. Rev. 80, 82; Michael Akehurst, ‘Equity and General Principles of Law’ (1976) 25 ICLQ 801, 808; Maljean-Dubois (n 124) 140-41. 127 Maljean-Dubois (n 124) 140-41. 128 Daniel Bardonnet, ‘Equité et frontières terrestres’ in Le droit international: unité et diversité, Mélanges Paul Reuter (Pedone 1981), 35. 129 Unlike Michael Volkovitsch’s argument. See Volkovitsch (n 46) 2172. 120 Verzijl (n 46) 220. 121 For a similar opinion see Makonnen (n 26) 139. 122 Schreuer (n 104) 283; Fombad (n 91) 123.

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