Anthony Aust. Handbook of International Law
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a summary of the Convention at Oppenheim, pp. 237–40.
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began as an ILC draft, and contains many provisions representing the progressive development of
international law. It neither reflects customary law, nor makes new law that would be generally
acceptable. It may be that the subject is just not amenable to prescriptive treatment. As with
succession to bilateral treaties, it may be something that can only be dealt with on a mainly case-by-
case basis.
One of the main flaws of the Convention is the heavy reliance throughout on equity as a guiding,
but supplementary, principle for the distribution and apportionment of tangible property. This was
entirely understandable as a matter of principle, but it contributed to the Convention’s general lack
of effectiveness, making it just too vague for application to specific situations. States have to agree
on the distribution of assets, yet the Convention gives them no clear or precise guidance on how to
do this. It also gives undue emphasis to the simpler case of former overseas territories, yet
decolonisation was almost over by 1983.
Former Yugoslav republics
Ironically, the Convention was not a useful guide for the negotiations between the former Yugoslav
republics on the complex problems of succession to state property, archives and debts, although the
lengthy and difficult negotiations are instructive in understanding the problems and how they can
best be met. The principle of equity was of little practical help.
43
Until the fall of the Milosevic regime, the negotiations dragged on, largely because the FRY
maintained the attitude that it was not a successor state to the SFRY.
44
The Convention also gave
further scope for delaying tactics. Article 8 provides that the ‘state property’ of the predecessor state
is the property owned by it according to its internal law. The SFRY had claimed to be the most
purist of all communist states in believing that the people owned all property. Under the SFRY
Constitution, property was in ‘social ownership’, so replacing ownership by the state with ownership
by society as a whole. It was therefore argued, Jesuitically, that either all property (including private
property) was state property or that there was
43. For an authoritative account of the problems experienced in the negotiations, see A. Watts, ‘State
Succession: Some Recent Practical Problems’, in V. Goetz, P. Selmer and R. Wolfrum (eds.), Liber
Amicorum Günther Jaenicke, Berlin, 1998, pp. 405–26.
44. See p. 399 above.
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no state property that could be the subject of state succession. Eventually, on 29 June 2001, the five
successor states concluded the Agreement on Succession Issues,
45
which entered into force in 2004.
The Agreement does not mention the Convention. Although its Articles on state archives were
helpful, the rest were not of much assistance, the settlement of the issue of state debts being done by
horse-trading, as graphically illustrated by the fifty pages of detailed annexes.
Membership of international organisations
46
A new state will not succeed to membership of the United Nations or other international
organisations if the predecessor state still exists. In 1947, India (an original Member of the United
Nations) was partitioned into India and Pakistan. Since India was regarded by the General Assembly
to be the continuation of India, the new state of Pakistan had to apply for membership. If, however, a
new state is the result of the union of two states, at least one of which was a UN Member before the
union, the new state will usually be accepted as a Member under its new name, without having to
apply for membership. When the two Yemens joined together as one state, they retained a seat in the
United Nations under the name of Yemen, no application for membership being required. Egypt and
Syria were original Members, but had only one UN seat after they joined together in 1958 as the
United Arab Republic. When they separated in 1961, Egypt continued as a Member under the name
of the United Arab Republic (changing to the Arab Republic of Egypt in 1971), and Syria resumed
its UN membership.
47
When the Soviet Union broke up in 1991, following the precedent of India the Russian Federation
was accepted by the UN membership as the continuation of the Soviet Union and so did not have to
apply for membership of the United Nations or other international organisations.
48
By contrast,
twelve of the former Soviet republics had each to apply for
45. See UNTS No. 40296; ILM (2002) 3 or www.ohr.int/succession.html.
46. See Schermers and Blokker, International Institutional Law, 4th edn, Leiden, 2003, pp. 51 et seq.; D.
O’Connell, State Succession in Municipal Law and International Law, Cambridge, 1967, vol. , pp. 183 et
seq.
47. See the entry for United Arab Republic in UN Multilateral Treaties, ‘Historical Information’, ‘UAR’.
48. Y. Blum, ‘Russia takes over the Soviet Union’s Seat at the United Nations’ (1992) EJIL 354.
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UN membership, Belarus (previously the Byelorussian SSR) and Ukraine (previously the Ukrainian
SSR) already being members in their own right.
49
Since neither the Czech Republic nor Slovakia claimed to be the continuation of Czechoslovakia,
they had each to apply for membership of international organisations, becoming Members of the
United Nations in 1993.
Between 1991 and 1992, the Socialist Federal Republic of Yugoslavia (SFRY) broke up into five
states: Bosnia and Herzegovina, Croatia, Macedonia, Slovenia and the Federal Republic of
Yugoslavia (Serbia and Montenegro) (FRY). The first four applied for UN membership and were
admitted between 1992 and 1993.
50
But the FRY’s claim to be the continuation of the SFRY was
rejected by the UN membership. In September 1992 the UN General Assembly decided that the FRY
could not automatically continue the membership of the SFRY; it should apply for membership, and
meanwhile could not take part in the work of the General Assembly.
51
For some years the FRY was
in something of a legal limbo.
52
The consistent advice from successive UN Legal Counsel was that
the effect of the General Assembly’s decision was that the membership of ‘Yugoslavia’ was not
terminated or suspended. But its practical consequence was that FRY representatives could no
longer take part in the work of the General Assembly and its subsidiary organs, or in conferences or
meetings convened by the General Assembly. It was therefore not allowed to be seated in the United
Nations, although, as the result of a pragmatic arrangement, it was allowed to keep open its
diplomatic mission to the United Nations and to receive UN documents, and the Yugoslav flag was
still flown on the UN building.
53
Following the fall of Milosevic,
49. See p. 205 above.
50. Because of Greece’s objections to the name ‘Macedonia’ (which is also the name of a northern Greek
province), Macedonia was not admitted until 1993, and then only under the cumbersome title of ‘the
former Yugoslavia Republic of Macedonia’ (emphasis added).
51. See UNSC Res. 757, 777, 821 and 1074, and UNGA Res. 47/1. 47/229 and 48/88; ILM (1992) 1421.
52. (1992)BYIL 655–8. See also the report of the Badinter Commission, 92 ILR 162 at 166. The ICJ elided
the issue in Genocide (Bosnia v. Yugoslavia) (Provisional Measures), ICJ Reports (1993), p. 3, at pp.
20–3; 95 ILR 1, but the full history of UN/FRY relations can be found in its judgment on the Application
for Revision of the 1996 Judgment, ICJ Reports (2003), paras. 24–64. See also n. 54 below.
53. For the details, see UN Doc. A/47/485. For a full account, see M. Wood, ‘Participation of the Former
Yugoslav States in the United Nations’ (1997) YB of UN Law 231.
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the FRY dropped its claim of continuation and applied for membership, being admitted in 2000,
changing its name to Serbia and Montenegro in 2003.
54
Representation in international organisations
It must be remembered that the question of who is entitled to represent a state in an international
organisation is a quite different matter from whether a state is a member.
55
Hong Kong Special Administrative Region
Section of Annex to the Joint Declaration on the Question of Hong Kong
56
provides that the
Hong Kong Special Administrative Region (HKSAR) shall be a separate customs territory, and may
participate in relevant international trade agreements and organisations (including preferential trade
arrangements). For this purpose, the HKSAR does not need authorisation from the Chinese
Government. The HKSAR became a member of the World Trade Organization (WTO), as did China
some years later. Both China and the HKSAR are members of the International Textiles and
Clothing Bureau, the World Tourist Organization, and the World Meteorological Organization
(WMO). As a member, the HKSAR has a vote in its own right.
Similar arrangements were made for Macau when it became the Macau Special Administrative
Region in 1999.
57
Nationality of natural persons
A problem that can arise when a new state emerges is that some of the inhabitants who had been
nationals of the predecessor state do not necessarily acquire the nationality of the successor state. In
UNGA Res. 55/153 of 2000, the General Assembly recognised that the ILC’s draft Articles on the
nationality of natural persons in relation to the succession of states would provide a useful guide for
practice, and invited governments to take
54. See the detailed consideration of the status of the FRY between 1992 and 2000 in Legality of the Use
of Force (Serbia and Montenegro v. Belgium) (Preliminary Objections), ICJ Reports (2004), paras. 25
and 54–91; and C. Gray, (2005) ICLQ 787–94.
55. See p. 197 above.
56. 1399 UNTS 33 (No. 23391); ILM (1984) 1366; UKTS (1985) 26.
57. See www.macau.gov.mo.
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its provisions into account, as appropriate, in dealing with this issue. The basic principle of the draft
Articles is that no national of a successor state should as a result of succession become stateless. In
2004, the General Assembly invited Members to submit comments on the advisability of elaborating
a legal instrument and postponed further consideration until 2008.
58
58. A/RES/59/34.
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21 State responsibility
It is one thing to define a rule and the content of the obligation it imposes, and another to determine
whether that obligation has been violated and what should be the consequences.
1
Crawford, The International Law Commission’s Articles on State Responsibility, Cambridge, 2002
2
Gray, Judicial Remedies in International Law, Oxford, 1987
Higgins, Problems and Process, Oxford, 1994, pp. 146–68
Oppenheim. Oppenheim’s International Law, 9th edn, London, 1992, pp. 499–511 and 528–54
Shaw, International Law, 5th edn, Cambridge, 2003, pp. 694–721
A state is responsible in international law for conduct in breach of its international obligations.
Although the International Law Commission (ILC) began studying the subject in 1956, it was not
until 2001 that it produced its final draft Articles (‘the Articles’) on the Responsibility of States for
Internationally Wrongful Acts.
3
The UN General Assembly circulated them in 2001. In
A/RES/59/35 (2004), the General Assembly commended the draft Articles without prejudice to the
question of any further action on them (such as adopting the Articles as a treaty), invited Members to
comment on future action, and decided to consider the matter again in 2007.
The law of state responsibility is customary international law. Unlike state immunity, which has
been developed largely by domestic legislation and domestic courts, state responsibility is pre-
eminently an area of international law developed by state practice and international judgments, of
which numerous examples are referred to in the ILC’s Commentary on
1. Roberto Ago, ILC Yearbook, 1970, vol. , p. 306, para. 66(c).
2. A very useful book by the very last ILC Special Rapporteur on the subject, containing the text of the
final draft Articles, the ILC’s detailed Commentary on them, background documents and a sixty-page
introduction.
3. The final draft Articles and the ILC Commentary are also in the ILC’s 2001 report (A/56/10) and at
www.un.org/law/ilc/.
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the Articles.
4
The ILC’s work has been followed closely by states, and their comments taken into
account by the ILC. The ILC adopted the Articles without a vote, and with consensus on virtually all
points.
5
The Articles inevitably include some elements of progressive development, such as that on
the procedural aspects of countermeasures. But, being essentially a codification of customary
international law, they are a good indication of what it is. International courts and tribunals have
over the years cited with approval previous ILC drafts.
6
Even if the final draft Articles are never
turned into a new convention, they are certain to continue to be very influential with international
courts and tribunals.
The Articles will not be quoted in full, but will be described in the light of the ILC Commentary.
Inevitably, this is only a general introduction; each new issue will require a thorough consideration
of the particular facts, the Articles, the ILC Commentary, relevant judgments and other sources.
Terminology
Some of the words and phrases as used by the ILC and in this chapter have the following meanings:
‘international
obligation’
an obligation owed under international law by one state to another state
(therefore ‘primary obligation’);
‘primary rules’
the rules of international law which determine whether there has been a
breach of a primary obligation;
7
‘secondary rules’
the rules of international law which determine whether a breach of a primary
obligation is attributable to a state and the legal consequences (i.e. the law of
state responsibility);
‘internationally
wrongful act’
a breach of a primary obligation which is attributable to a state;
‘injury’
the effect of an internationally wrongful act on another state or its nationals,
including any damage, material or moral;
‘injured state’
the state harmed by the injury;
4. See the list of some 400 (almost entirely international) cases in Crawford, The International Law
Commission’s Articles on State Responsibility, Cambridge, 2002, pp. – .
5. Ibid., p. 60.
6. See, for example, Gabcíkovo-Nagymaros Project (Hungary v. Slovakia), ICJ Reports (1997), p. 7, para.
47; 116 ILR 1.
7. See Shaw, pp. 698–700.