Citation:
Pavel Sturma, State Succession in Respect of
International Responsibility, 48 Geo. Wash. Int'l L.
Rev. 653 (2016)
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STATE SUCCESSION IN RESPECT OF INTERNATIONAL
RESPONSIBILITY
PAVEL STURMA*
INTRODUCTION
The recent decision of the International Court of Justice in
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Croatiav. Serbia), released February 3, 2015, contained
no surprises regarding the decision on the merits. The
judgment serves as an important pronouncement in favor of the
argument that the responsibility of a State for wrongful acts might
be triggered by succession, for example, the replacement of one
State by another in its responsibility for the international relations
of territory, in cases such as secession, dissolution, or unification of
States. It also incurred debate on State succession in areas other
than those codified in the 1978 Vienna Convention on Succession
of States in Respect of Treaties and the 1983 Vienna Convention
on Succession of States in Respect of State Property, Archives and
Debts, in particular, succession as it relates to State responsibility.
The responsibility of States for internationally wrongful acts and
the succession of States are two important areas of general international
law. Some of the governing rules, which are largely customary
in nature, have been codified by the U.N. International Law
Commission (ILC). To date, however, State responsibility and
State succession have not been studied as a unified topic by the
ILC.
The ILC adopted the Articles on Responsibility of States for
Internationally Wrongful Acts in 2001. However, the Commission
did not address the situation where a State's succession occurs following
the commission of a wrongful act.1 This succession may
occur by a responsible State or by an injured State. In other words,
* Professor of International Law, Charles University in Prague, Faculty of Law.
Member of the U.N. International Law Commission, Geneva. President of the Czech Society
of International Law. DrSc. (Int'l Law) 2001, Charles University in Prague; Mgr. (Philosophy
and Economics) 1992, Charles University in Prague; C.R.A. 1991, Universit6 Paris
2 Panth~on-Assas; CSc. (PhD.) 1990, Institute of Law, Czechoslovak Academy of Sciences;
JUDr. 1986, Charles University in Prague.
1. See Vienna Convention art. 39, Aug. 23, 1978, 1946 U.N.T.S. 3, 24 ("The provisions
of the present Convention shall not prejudge any question that may arise in regard to
The Geo. Wash. Int'l L. Rev.
either the State that committed an internationally wrongful act, or
the State that is victim of that act, which has been replaced by a
successor State, could pursue succession. 2 In both cases, succession
gives rise to complex legal relationships. In this regard, it is
worth noting that in the 1998 Report on State Responsibility by the
Special Rapporteur, James Crawford, said that widely accepted
opinion held that a new State generally does not succeed to any
State responsibility of a predecessor State.A However, the Commission's
commentary to the 2001 Articles reads differently. 4 It says
that "[i]n the context of State succession, it is unclear whether a
new State succeeds to any State responsibility of the predecessor
State with respect to its territory."5 This difference seems to reflect
that the traditional theory of non-succession to State responsibility
is not always applicable.
The ILC also touched on the issue of responsibility in the context
of its work on State succession during the 1960s. In 1963, Professor
Manfred Lachs, then-Chairman of the ILC Sub-Committee
on Succession of States and Governments, proposed inclusion of
succession with respect to responsibility for torts as a sub-topic to
be examined in relation to the discussion of succession of States. 6
The inclusion of this issue inspired disagreement, which led the
Commission to exclude the problem from the scope of the subtopic.
7 Since that time, however, State practice and doctrinal views
have developed further.
Traditionally, neither State practice nor doctrine provided a single
answer to whether and under what circumstances a successor
State may be responsible for an internationally wrongful act of its
predecessor. In some cases of State practice, however, it has been
possible to identify division or allocation of responsibility between
successor States. This trend has been highlighted in recent practhe
effects of a succession of States in respect of a treaty from the international responsibility
of a State .... ).
2. See PATRICK DUMBERRY, STATE SUCCESSION TO INTERNATIONAL RESPONSIBILITY 4-5
(2007).
3. Int'l Law Comm'n, First Rep. on State Responsibility, 50th Sess., 282, U.N. Doc.
A/CN.4/490/Add.5, 282 (July 22, 1998).
4. See generally Int'l Law Conm'n, Rep. on the Work of Its Fifty-Third Session, U.N.
Doc. A/56/10 (2001) [hereinafter ILC Commentaries].
5. Id. at 52, 3.
6. See Rep. &yManfred Lachs, Chairmanofthe Sub-comm. on Succession ofStates and Gov'ts
to the GAOR, [1963] 2 Y.B. Int'l L. Comm'n 260-261, U.N. Doc. A/CN.4/160.
7. Id. at 298.
654 [Vol. 48
State Succession and Responsibility
tice beginning in the 1990s, and may be reflected in decisions of
the International Court of Justice from that period.8
This Article aims to demonstrate that the traditional view,
according to which there is no succession in the field of State
responsibility for internationally wrongful acts, no longer corresponds
to the current status of international law. Beginning with a
survey of the doctrinal views in Part I, this Article focuses on two
main questions. First, addressed in Part II, whether there is a rule
of international law in cases of State succession that excludes any
transfer of responsibility (i.e. secondary obligation) to a successor
State. Second, addressed in Part III, whether a successor State can
present a claim of reparation on behalf of its nationals for damage
suffered by their current nationals when they held the nationality
of a predecessor State. Part IV offers perspectives on the codification
of rules on State succession with respect to international
responsibility.
I. DIVERGENT VIEWS OF INTERNATIONAL LEGAL SCHOLARSHIP
In the past, the doctrine of State succession generally denied the
possibility of the transfer of responsibility to a successor State. 9 As
a result, it is unsurprising that most international law textbooks do
not address succession of international responsibility. 10 Where it
has been included, the topic is usually only mentioned briefly and
in passing. Additionally, some authors only address cases of singular
succession of States with respect to treaties and with respect
8. Gabcfkovo-Nagymaros Project (Hung./Slovk.), Judgment, 1997 I.C.J. 68, 151
(Feb. 5).
9. See, e.g., PIERRE M. EISEMANN & MART-ri KOSKENNIEMI, STATE SUCCESSION: CODIFICATION
TESTED AGAINST THE FACTS 193-94 (8th ed. 2000); LAURI MALKSOO, ILLEGAL ANNEXATION
AND STATE CONTINUITY- THE CASE OF THE INCORPORATION OF THE BALTIC STATES BY THE
USSR 257 (2003); KRYSTYNA MAREK, IDENTITY AND CONTINUITY OF STATES IN PUBLIC INTERNATIONAL
LAW 11, 189 (2d ed. 1968); D.P. O'CONNELL, STATE SUCCESSION IN MUNICIPAL LAW
AND INTERNATIONAL LAw 482 (1967); Arrigo Cavaglieri, Rdgles Cnralesdu Droit de la Paix,
26 RECUEIL DE L'ACAD9MIE DE DROIT INTERNATIONAL [RCADI] 340, 374, 378, 416 (1929)
(Fr.); Mathew C.R. Craven, The Problemof State Succession andthe Identity of States UnderInternationalLaw,
9 EUR. J. INT'L L. 142, 149-50 (1998); Jiri Malenovsk , ProbImesJuridiquesLids
d laPartitionde la Tchgcoslovaquie,39 ANNUAIRE FRANCiuS DE DROIT INTERNATIONAL [AFDI]
305, 334 (1993);Jean-Philippe Monnier, La Sucession d'Etatsen Matirede ResponsabilitgInternationale,8
AFDI 65, 68-69 (1962).
10. See, e.g.,JEAN COMBACAU & SERGE SUR, DROIT INTERNATIONAL PUBLIC 430-42 (6th
ed. 2004); INTERNATIONAL LAW ANTHOLOGY 189-96 (Anthony D'Amato ed., 1994) (including
a section on state succession responsibilities); OPPENHEIM'S INTERNATIONAL LAW 208-18
(RobertJennings & Arthur Watts eds., 9th ed. 1992) (including a few lines on state succession
in relation to torts, in contrast to international responsibility).
11. See, e.g., JAMES CRAWFORD, BROWNLIE'S PRINCIPLES OF PUBLIC INTERNATIONAL LAW
442 (8th ed. 2012); PATRICK DAILLIER & ALAIN PELLET, DROIT INTERNATIONAL PUBLIC
2016]
The Geo. Wash. Int'l L. Rev.
to State property, archives, and debts.'2 These subjects were codified
in the Vienna Convention on Succession of States in Respect
of Treaties (1978) and the Vienna Convention on Succession of
States in Respect of State Property, Archives and Debts (1983).13
This lack of inclusion or discussion demonstrates that the relationship
between the succession ofStates and international responsibility
remains largely neglected in international legal scholarship.
When addressing issues of State succession, most authors assert
that there is no transfer of obligations arising from international
responsibility to a successor State-the theory of non-succession.1 4
Support for the theory of non-succession stems from various theoretical
arguments. 15 One theory is based on an analogy of internal
law-the theory of universal succession in private law-which has
origins in Roman law.16 It follows that there is an important exception
for responsibility ex delicto, which is not transferable from a
wrongdoer to a successor.17 Other arguments point out that a
State is generally only responsible for its own international wrongful
acts and not for acts of other States.' Therefore, a successor
State should not be held responsible for wrongful acts of its predecessor,
which have different international legal personalities.' 9 A
final argument against the transfer of State responsibility draws
from the "highly personal nature" of claims and obligations that
arise for a State towards another State as a result of a breach of
international law.20
None of these theories or private law analogies is a perfect fit,
because they cannot discard a possible transfer of at least some
obligations of States arising from international responsibility. As a
555-56 (7th ed. 2002); PIERRE-MARIE Dupuy, DROIT INTERNATIONAL PUBLIC 61 (8th ed.
2006).
12. See, e.g., VACLAV MIKULKA, SUKCESE STATU [STATE SUCCESSION] (1987).
13. See Vienna Convention on Succession of States in Respect of Treaties, Aug. 23,
1978, 1946 U.N.T.S. 3; Vienna Convention on Succession of States in Respect of State
Property, Archives and Debts, Apr. 8, 1983, U.N. Doc. A/CONF.117/14 (1983), 22 I.L.M.
306.
14. See, e.g., Cavaglieri, supranote 9; MAREK, supra note 9; EISEMANN & KOSKENNIEMI,
supranote 9; Craven, supranote 9; Malenovsk , supranote 9; MALKSOO, supranote 9; Monnier,
supra note 9; O'CONNELL, supranote 9.
15. See DUMBERRY, supra note 2, at 38-40.
16. See Cavaglieri, supra note 9, at 374.
17. See H. LAUTERPACHT, PRIVATE LAW SOURCES AND ANALOGIES OF INTERNATIONAL LAw
131-32, 283 (1927).
18. See, e.g., CHARLES DE VISSCHER, TH9ORES ET RPALITtS EN DROIT INTERNATIONAL
PUBLIC 210 (1953); DALLIER & PELLET, supra note 11, at 555.
19. Monnier, supra note 9, at 89.
20. See IGNAZ SEIDL HOHENVELDERN, MEZINARODNi PRAVO VEREJNt [PUBLIC INTERNATIONAL
LAW] 246-47 (9th ed. 1999).
[Vol. 48
State Succession and Responsibility
rule, these theories and analogies do not take into consideration
new developments and changes of the concept of State responsibil-
ity.21
Nevertheless, the theory of non-succession has not been questioned
for most of the 20th century. 22 Professor O'Connell wrote
in 1967 that it has "been taken for granted that a successor State is
not liable for the delicts of its predecessor."23 However, in the past
20 years, the view has evolved and has become more nuanced and
critical regarding the theory of non-succession, to the extent that
they admit a possibility of succession at least in certain cases. 24
Some authors, who accept as a general principle the theory of nonsuccession
to State responsibility, admit an exception exists in cases
where a State has declared an intention to succeed the rights and
obligations of its predecessor State.25 In these cases, the State
would be liable to provide reparations for damages caused by its
predecessor.
26
However, not all scholars who question the strict theory of nonsuccession
assert the existence of a general rule on State succession.27
They deny that current international law includes a norm
excluding a possibility of any transfer of obligations arising from
State responsibility. 28 In fact, they admit that responsibility under
modern international law is not based on fault but rather on a
more objective concept of an internationally wrongful act.29 It is
conceivable, therefore, that certain obligations, including legal
21. See Brigitte Stern, La succession d'Etats,262 RECUEIL DE L'ACADEMIE DE DROIT INTERNATIONAL
[RCADI] 35, 174 (1996).
22. See O'CONNELL, supranote 9, at 482.
23. Id.
24. See, e.g., DUMBERRY, supra note 2; Wladyslaw Czaplinshi, State Succession and State
Responsibility, 28 CAN. Y.B. INT'L L. 339, 346, 356 (1990); Menno T. Kamminga, State Succession
in Respect ofHuman Rights Treaties,7 EUR.J. INT'L. L. 469, 483 (1996); Vtclav Mikulka,
StateSuccession and Responsibility, in THE LAW OF INTERNATIONAL RESPONSIBILITY 291 (James
Crawford et al. eds., 2010); D.P. O'Connell, Recent Problems of State Succession in Relation to
New States, 130 RECUEIL DE L'ACADPMIE DE DROIT INTERNATIONAL [RCADI] 95, 162 (1970);
Brigitte Stern, Responsabilit!Internationaleet Succession d'Etats,in THE INTERNATIONAL LEGAL
SYSTEM IN QUEST OF EQUITY AND UNrVERSALITY 336 (Laurence Boisson de Chazournes &
Vera Gowland-Debbas eds., 2001).
25. See PIERRE D'ARGENT, LES ItPARATIONS DE GUERRE EN DROIT INTERNATIONAL PUBLIC
814 (2002); Oscar Schachter, State Succession: The Once and FutureLaw, 33 VA. J. INT'L L.
253, 256 (1993); Ineta Ziemele, State Continuity, Succession andResponsibility: Reparationsto
the Baltic States and their Peoples?,3 BALTIC Y.B. IN-r'L L. 165, 176 (2003).
26. DUPUY, supra note 11, at 59.
27. Id.
28. See DUMBERRY, supranote 2, at 58.
29. Stern, supra note 24, at 335.
2016]
The Geo. Wash. Int'l L. Rev.
consequences of responsibility, such as reparation, would transfer
to a successor State. 30
This issue was addressed by a report of the International Law
Association in 200831 and the Institute of International Law
(Institut de Droit International, IDI) in 2013.32 The Institute of
International Law established a thematic commission, one of its
sub-bodies, to deal with the State Succession in Matters of State
Responsibility. 33
At the Tokyo Session in 2013, the IDI had before
it the Provisional Report of the Special Rapporteur, Professor
Marcelo G. Kohen, and a draft resolution on State Succession in
Matters of State Responsibility, consisting of a Preamble and 14
Articles, which provide for the transfer of responsibility under certain
circumstances. 34 The final resolution of the IDI, adopted at
the Tallinn Session in 2015, was slightly amended to include a Preamble
and 16 Articles.35 The final resolution stressed the need for
codification and further progressive development in this area.36
One idea, which could provide useful guidance for possible codification
by the International Law Commission, calls for flexibility to
allow for the tailoring of different solutions to different
situations.
37
II. DEVELOPMENTS IN STATE PRACTICE AND CASE LAw
As explained above, both State practice and doctrine have been
divided in an answer whether and in what circumstances a successor
State may incur responsibility for an internationally wrongful
act of its predecessor. However, some cases allow identification of
allocation of responsibility between successor States.
30. Id. at 338.
31. Report of the 73rd Conference of the International Law Association, Aug. 17-21,
2008, Rio de Janeiro, Braz., Aspects of the Law on State Succession, Res. No. 3/2008.
32. See Report of the 14th Comm. Of the Institut de Droit International, 2013, Provisional
Report of the Special Rapporteur, State Succession in Matters of State Responsibility
[hereinafter Provisional Report].
33. Resolution of the 14th Comm. of the Institut de Droit International, Aug. 28,
2015, State Succession in Matters of State Responsibility.
34. See Provisional Report, supra note 32.
35. Resolution of the 14th Comm. of the Institut de Droit International, Aug. 28,
2015, State Succession in Matters of State Responsibility (final text).
36. Id. at 1 ("Convinced of the need for the codification and progressive development
of the rules relating to succession of States in matters of international responsibility of
States, as a means to ensure greater legal security in international relations.").
37. Id. ("Taking into account that different categories ofsuccession of States and their
particular circumstances may lead to different solutions.").
[Vol. 48
State Succession and Responsibility
A. Early Cases
Unsurprisingly, early decisions of arbitral tribunals adopted a
theory of non-succession, holding that a successor State had no
responsibility for the international delicts of its predecessor. 38 In
Robert E. Brown Claim, the claimant sought compensation for the
refusal of local officials of the Boer Republics to issue licenses to
mine a goldfield.3 9 The arbitral tribunal held that Brown had
acquired a property right and had been injured by a denial ofjustice,
but that this delict responsibility did not succeed, or pass on,
to Great Britain.40 Similarly, in FrederickHenry Redward Claim, the
Government of the Hawaiian Republic, which was subsequently
annexed by the United States, had wrongfully imprisoned the
claimants. 4' The tribunal held that "legal liability for the wrong
ha[d] been extinguished" with the disappearance of the Hawaiian
Republic, and thus it did not carry over to the United States. 42
However, if the claim had been a monetary judgment, which may
be considered a debt, or interest on the part of the claimant in
assets of fixed value, there would be an acquired right in the claimant,
and an obligation to which the successor State had
succeeded.
43
With respect to the Brown and Redwarddecisions, it was observed
that:
[t]hose cases date from the age of colonialism when colonial
powers resisted any rule that would make them responsible for
delicts of states which they regarded as uncivilized. The authority
of those cases a century later is doubtful. At least in some
cases, it would be unfair to deny the claim of an injured party
because the state that committed the wrong was absorbed by
another state.44
These early cases, which supported the rule of non-succession, are
not considered accurate reflections of current international law.45
Further, even when they were initially decided, there existed cer-
38. See DUMBERRY, supra note 2, at 59.
39. Robert E. Brown (U.S. v. UK), 6 R.I.A.A. 120, 120 (Gr. Brit.-U.S. Arb. Trib.
1923).
40. Id. at 129.
41. F. H. Redward (U.K. v. U.S.), 6 R.I.A.A. 157, 158 (Gr. Brit.-U.S. Arb. Trib. 1925).
42. Id.
43. See O'CONNELL, supra note 9, at 485-86.
44. RFSTATEMENT (THIRD) OF THF FOREIGN REI-ATIONS LAW OF THE UNITED Sr.kTES
§ 209, Reporters' Note 7 (1987).
45. Cf DUMBERRY, supra note 2, at 201-03 ("There is ... a clear tendency in modern
State practice towards the recognition that successor States should take over the obligations
arising from the commission of internationally wrongful acts.") (emphasis in
original).
2016]
The Geo. Wash. Int'l L. Rev.
tain situations in which liability transferred to the successor State,
contrary to the general non-succession theory.46
The early cases also included the dissolution of the Union of
Colombia (1829-1831) after which the United States invoked the
responsibility of the three successor States-Colombia, Ecuador
and Venezuela-leading to agreements regarding compensation
for illegal acquisition of American ships.47 The matter was settled
through a negotiation, rather than litigation.48 After Indian and
Pakistani independence, prior rights and liabilities, including liabilities
relating to actionable wrongs (both contractual and tortious
claims) that were associated with Great Britain, were allocated to
the State in which the cause of action arose. 49 Many devolution
agreements executed by former dependent territories of the
United Kingdom provided for the assumption of the delictual
responsibilities by the new States.50
In addition, decisions of arbitral tribunals are not uniform. In
LighthousesArbitration,the tribunal found Greece liable, as the successor
State to the Ottoman Empire, for breaching a concession
contract between the Ottoman Empire and a French company by
maintaining lighthouses in Crete and ensuring ship connections
between the island and the mainland after the union of Crete with
Greece in 1913.51
According to the award, "the Tribunal can only
come to the conclusion that Greece, having adopted the illegal
conduct of Crete in its recent past as autonomous State, is bound,
as successor State, to take upon its charge the financial consequences
of the breach of the concession contract."52 Some scholars,
however, argue that Greece was liable because the wrongful
acts began before, and continued after, the union of Crete with
Greece.
53
This view, based on the circumstances in Lighthouses, where the
tribunal based part of its decision on Greece's endorsement of the
breach, was shared by Special Rapporteur Crawford in his 1998
46. See, e.g., the dissolution of the Union of Colombia (1829-1831) discussed infra.
47. See Protocol between the United States of America and Venezuela, May 1, 1852, S.
TREATY Doc. No. 357 (1910); DUMBERRY, supra note 2, at 106.
48. See Protocol between the United States of America and Venezuela, supra note 47;
DUMBERRY, supra note 2, at 106.
49. See generallyMarjorie M. Whiteman, Torts, 2 DIGEST INT'L L. 873 (1963).
50. See Materials on Succession of States, U.N. Doc. ST/LEG/SER.B/14 (1967).
51. See generally Lighthouses Arb. (Fr. v. Greece) 12 R.I.A.A. 155 (Perm. Ct. Arb.
1956).
52. Id.
53. Cf e.g., Monnier, supra note 9, at 84-85 (finding Greece liable for Crete's illegal
conduct because of Greece's passiveness during Crete's regime).
660 [Vol. 48
State Succession andResponsibility
Report on State Responsibility to the U.N. International Law
Commission.
54
There are additional cases concerning State responsibility in situations
of unification, dissolution, and secession of States. One
example involves the United Arab Republic (UAR), which was created
as result of the unification of Egypt and Syria in 1958.55
There
are three instances where the UAR, as the successor State, assumed
responsibility for obligations arising from internationally wrongful
acts committed by the predecessor States.5 6 All these instances
involved actions taken by Egypt against properties owned by Western
individuals during the nationalization of the Suez Canal in
1956 and the nationalization of other foreign-owned properties.57
The first, the nationalization of the Socigtg Financirede Suez by
Egypt, was settled by agreement between the UAR and Sociift6
Financi4re de Suez (1958).58 In the aftermath, the UAR compensated
the shareholders for the nationalization committed by
Egypt.59 The second, dealing with goods and property of French
nationals taken by Egypt, was settled by agreement between the
UAR and France, resulting in the resumption of cultural, economic,
and financial relations between the two States (1958).60
The agreement provided that the UAR, as the successor State,
would restore the goods and property and compensate the individuals
for any goods and property not restituted.61 A final similar
agreement, dealing with property of British nationals, was signed in
1959 between the UAR and the United Kingdom. 62
The UAR only lasted until 1961 when Syria left the UAR.63 After
the dissolution, Egypt, as one of the two successor States, entered
54. Int'l Law Comm'n, First Rep. on State Responsibility, supra note 3, 282.
55. See DUMBERRY, supra note 2, at 95-98.
56. Id. at 96.
57. Id. at 96-97.
58. See generally Lazar Foscaneanu, L 'AccordAyant pourObjet lIndemnisationde la Compagnie
de Suez Nationalislepar l'Egypte, 5 ANNUAIRE FRANCAIS DE DROIT INTERNATIONAL [AFDI]
161 (1959).
59. See id. at 202.
60. See generally UnitedArab Republic-FranceFinancialAgreements, 54 Am. J. INT'L L. 506
(1960). Cf Charles Rousseau, Chronique des Faits Internationaux,62 REVUE GN9RALE DE
DROIT INTERNATIONAL PUBLIC [RGDIP] 65, 681-82 (1958).
61. UnitedArab Republic-FranceFinancialAgreements, supranote 60.
62. Agreement Between the Government of the United Kingdom and the Government
of the United Arab Republic Concerning Financial and Commercial Relations and
British Property in Egypt, 343 U.N.T.S. 159; Eugene Cotran, Some LegalAspects of the Formation
of the United Arab Republic and the United Arab States, 8 INT'L & COMP. L.Q. 346, 366
(1959).
63. DUMBERRY, supra note 2, at 107.
2016]
The Geo. Wash. Int'l L. Rev.
into agreements with other States (such as Italy, Sweden, the
United Kingdom, the United States) on compensation to foreign
nationals whose property had been nationalized by the UAR (the
predecessor State) during the period of 1958-1961.64
In cases of secession, i.e. separation of one part of the territory
from a parent country that continues to exist, more complicated
situations arise when it comes to succession. When Panama
seceded from Colombia in 1903, Panama refused to be held
responsible for damage caused to U.S. nationals during a fire that
occurred in the city of Colon in 1855.65 However, in 1926, the
United States and Panama signed the Claims Convention. 66 The
Claims Convention envisaged future arbitration proceedings on
the 1855 fire in Colon, including whether it should be found that
"there [wa]s an original liability on the part of Colombia, to what
extent, if any, the Republic of Panama has succeeded Colombia in
such liability on account of her separation from Colombia on
November 3, 1903."67 Although no subsequent arbitration
occurred, this example shows, at least implicitly, that both the
United States and Panama recognized the possibility of succession
with respect to State responsibility. 6
Another key example comes from the era of India's independence.
India and Pakistan became independent States-separated
from the former British Dominion of India-on August 15, 1947.69
The 1947 Indian Independence (Rights, Property and Liabilities)
Order dealt with issues of State succession.70
Section 10 of the
Order provided for the "transfer of liabilities for an actionable
wrong other than breach of contract" from the British Dominion
of India to the new independent State of India.71 In many cases
since, Indian courts have interpreted Section 1072 to mean that
India is responsible for internationally wrongful acts committed by
the British Dominion of India before the date of succession.73
64. See BuRNs H. WESTON ET AL., INTERNATIONAL CLAIMS: THEIR SETTLEMENT BY LUMP
SUM AGREEMENTS 1975-1995 139, 179,185, 235 (1999); DUMBERRY, supra note 2, at 108-10.
65. DUMBERRY, supra note 2, at 164.
66. Claims Convention between United States of America and Panama, 6 R.I.A.A. 293,
301 (Penn. Ct. Arb. 1926).
67. Id. at 302.
68. DUMBERRY, supra note 2, at 165.
69. Id. at 172.
70. Whiteman, supranote 49, at 873.
71. Id.
72. See, e.g.,Kishangarh Electric Supply Co. Ltd. v. United States of Rajasthan, 1960
AIR 40 (Raj.) 900-01 (India); O'CONNELL, supra note 9, at 493.
73. See DUMBERRY, supra note 2, at 173.
[Vol. 48
State Succession and Responsibility
B. Cases of Succession in Centraland EasternEurope in the 1990s
More recent cases concerning situations of State succession are
from Central and Eastern Europe in the 1990s, such as the dissolution
of the Czechoslovakia, Yugoslavia, and the Soviet Union, as
well as the unification of Germany. Issues from the dissolution of
the Socialist Federal Republic of Yugoslavia (SFRY) were addressed
by the Arbitration Commission of the EC Peace Conference on
Yugoslavia (Badinter Commission) .74
The Badinter Commission
issued a number of opinions. In its Opinion No. 9, it requires the
successor States of the SFRY to settle by agreement all issues relating
to their succession and find equitable outcomes based on principles
inspired by the Vienna Conventions of 1978 and 1983 and
the relevant rules of customary international law.75
Another important decision of the ICJ stems from the GabcikovoNagymaros
case (Hungary/Slovakia) .76 This case arose following
the dissolution of Czechoslovakia, which dissolved under an agreement
in conformity with its constitution.7 7
Both Czech and Slovak
national parliaments declared their willingness to assume the
rights and obligations arising from the international treaties of the
predecessor State before the dissolution. 78 Article 5 of the Constitutional
Act No. 4/1993 provides that:
The Czech Republic assumes those rights and obligations not
referred to in Art. 4 which, on the day it was dissolved, arose for
the Czech and Slovak Federal Republic from international law,
with the exception of those ... obligations tied to the territory
to which the sovereignty of the Czech and Slovak Federal
Republic related, but to which to the sovereignty of the Czech
Republic does not relate.79
Concerning the international responsibility of Slovakia, the ICJ
said that:
Slovakia ... may be liable to pay compensation not only for its
own wrongful conduct but also for that of Czechoslovakia, and it
74. See id. at 117-18.
75. The EC Arbitration Commission for the Settlement of Disputes, Opinion No. 9,
July 4, 1992, reprinted in 4 EUR.J. INT'L L. 66, 88-90 (1993).
76. Gabcfkovo-Nagymaros, supra note 8.
77. See Permanent Rep. of Czechoslovakia to the U.N., Letter dated Dec. 31, 1992
from the Permanent Rep. of Czechoslovakia to the Secretary-General, U.N. Doc. A/47/848
(Dec. 31, 1992); Proclamation of the National Council of the Slovak Republic to Parliaments
and Peoples of the World (Dec. 3, 1992): Proclamation of the National Council of
the Czech Republic to all Parliaments and Nations of the World (Dec. 17, 1992).
78. Id.
79. 0 opatoenich souvisejfcfch se zdnikem Eeskt a Slovensk6 Federativni Republiky
[On Measures Relating to the Dissolution of the Czech and Slovak Federal Republic],
Ijstavni ztkon 4/1993 Sb.
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The Geo. Wash. Int'l L. Rev.
is entitled to be compensated for the damage sustained by
Czechoslovakia as well as by itself as a result of the wrongful conduct
by Hungary.
8 0
The ICJ thus recognized succession with respect to secondary
responsibility obligations and secondary rights resulting from
wrongful acts.
Issues of State succession following the collapse of the former
Yugoslavia were more complex than in Czechoslovakia.81 One reason
was the 1992 declaration by the Federal Republic ofYugoslavia
(FRY), comprised of Serbia and Montenegro, that it would be a
continuator-continuing the international personality of the
SFRY.82 However, the other former Yugoslav republics did not
agree with this declaration. 83 The U.N. Security Council and General
Assembly refused to recognize the FRY as the continuing State
by resolution.84 The Badinter Commission (the Arbitration Commission)
held the same view.85 Finally, the FRY changed its position
in 2000 by applying for admission to the United Nations as a
new State.86
On the basis of recommendation of the Badinter Commission,
the successor States to the former Yugoslavia had to resolve all
issues of State succession by agreement.8 7 The Agreement on Succession
Issues was concluded on June 29, 2001.88 According to its
Preamble, the Agreement was reached after negotiations "with a
view to identifying and determining the equitable distribution
80. Gabcikovo-Nagymaros, supra note 8, 151.
81. Cf DUMBERRY, supra note 2, at 117-19 (noting the U.N. Security Council, U.N.
General Assembly, and Badinter's refusal to recognize the Federal Republic of Yugoslavia
as the "continuator" of the Socialist Federal Republic of Yugoslavia, among other
complications).
82. Declaration on the Formation of the Federal Republic of Yugoslavia, April 27,
1992, annexed to Permanent Rep. of Yugoslavia, Letter dated May 5, 1992 from the Permanent
Mission of Yugoslavia to the President of the Security Council, U.N. Doc. S/23877
(May 5, 1992).
83. See Minister for Foreign Affairs of the Republic of Slovenia, Letter dated May 28,
1992 from the Minister for Foreign Affairs of the Republic of Slovenia to the SecretaryGeneral,
U.N. Doc. A/47/234, S/24028 (1992); Permanent Rep. of Bosnia-Herzegovina
and Croatia to the U.N., Letter dated Sept. 27, 1997 from the Permanent Rep. of BosniaHerzegovina
and Croatia to the Secretary-General, U.N. Doc. A/47/474 (Sept. 27, 1992);
Permanent Mission of Croatia to the U.N., Letter dated Aug. 7, 1995 from the Permanent
Mission of Croatia to the Secretary-General, U.N. Doc. A/50/333 (Aug. 7, 1995); see also
DUMBERRY, supra note 2, at 118.
84. S.C. Res. 777 (Sept. 19, 1992); G.A. Res. 47/1 (Sept. 22, 1992).
85. The EC Arbitration Commission for the Settlement of Disputes, Opinion No. 10,
July 4, 1992, reprintedin 4 EuR. J. INT'L L. 66, 90-91 (1993).
86. G.A. Res. 55/12 (Nov. 10, 2000).
87. See Agreement on Succession Issues, June 29, 2001, 2262 U.N.T.S. 251.
88. Id.
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State Succession and Responsibility
amongst themselves of rights, obligations, assets and liabilities of
the former Socialist Federal Republic ofYugoslavia."89 Article 2 of
Annex F of the Agreement dealt with the issues of international
wrongful acts against third States before the date of succession, saying
that:
[a]ll claims against the SFRY which are not otherwise covered by
this Agreement shall be considered by the Standing Joint Committee
established under Article 4 of this Agreement. The successor
States shall inform one another of all such claims against
the SFRY.90
It can be assumed from this passage, which sets up a special mechanism
for outstanding claims against the SFRY, that the obligations
of the predecessor State do not disappear.91 In addition, Article I
of Annex F refers to the transfer of claims from the predecessor
State to a successor State.92
The first "Yugoslav" case in which the ICJ addressed succession
with respect to responsibility, though via an indirect mechanism, is
the Genocidecase (Bosnia andHerzegovina v. Serbia andMontenegro).93
The International Court of Justice, which was not called upon to
resolve the question of succession but rather to identify the
Respondent Party, provided the following:
The Court observes that the facts and events on which the final
submissions of Bosnia and Herzegovina are based occurred at a
period of time when Serbia and Montenegro constituted a single
State.... The Court thus notes that the Republic of Serbia
remains a respondent in the case, and at the date of the present
Judgment is indeed the only Respondent.... That being said, it
has to be borne in mind that any responsibility for past events
determined in the present Judgment involved at the relevant
time the State of Serbia and Montenegro. 94
The same conclusion, that Serbia would be the sole respondent,
was adopted by the ICJ in the parallel Genocide dispute between
89. Id. pmbl.
90. Id. art. 2.
91. DUMBERRY, supranote 2, at 121.
92. "All rights and interests which belonged to the SFRY and which are not otherwise
covered by this Agreement (including, but not limited to, patents, trade marks, copyrights,
royalties, and claims of and debts due to the SFRY) shall be shared among the successor
States, taking into account the proportion for division of SFRY financial assets in Annex C
of this Agreement." Agreement on Succession Issuesfor the Former Yugoslavia, 41 I.L.M. 1, 34
(2002).
93. Application of the Convention on Prevention and Punishment of Crime of Genocide
(Bosn. & Herz. v. Serb. & Montenegro), Judgment, 2007 I.C.J. Rep. 43 (Feb. 26).
94. Id. 74-78.
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The Geo. Wash. Int'l L. Rev.
Croatia and Serbia in 2008.95
The recent final judgment in Croatia
v. Serbia deals more in details with the issues of succession to State
responsibility. 96 In spite of the fact that the Court rejected Croatia's
claim and Serbia's counter-claim on the basis that the intentional
element of genocide (dolus specialis) was lacking, the
judgment seems to be a pronouncement in favor of the argument
that the responsibility of a State might be engaged by way of
succession.
97
The ICJ recalled that, in its November 18, 2008 decision, it
found that it had jurisdiction to rule on Croatia's claim with
respect to acts committed as from April 27, 1992, the date when
the Federal Republic of Yugoslavia (FRY) came into existence as a
separate State and became party, by succession, to the Genocide
Convention, but reserved its decision on its jurisdiction with
respect to breaches of the Convention alleged to have been committed
before that date.98 In its 2015 decision, the Court stated
that the FRY could not have been bound by the Genocide Convention
before April 27, 1992-even as a State in statu nascendi.99
The Court takes note, however, of an alternative argument that
the FRY (and subsequently Serbia) could have succeeded to the
responsibility of the SFRY for breaches of the Convention prior to
that date.100 "Croatia advance [d] two separate grounds on which it
claim[ed] the FRY [had] succeeded to the responsibility of the
SFRY.101 First, it claim[ed] that this succession came about as a
result of the application of the principles of general international
law regarding State succession." 10 2 Croatia made this argument in
reliance upon the award of the arbitration tribunal in the Lighthouses
Arbitration (1956), which stated that the responsibility of a
State might be transferred to a successor if the facts were such as to
make the successor State responsible for the former's wrongdoing.10
3 Second, Croatia argued that the FRY, by declaration of
95. Application of the Convention on Prevention and Punishment of Crime of Genocide
(Croat. v. Serb. & Montenegro), Preliminary Objections, 2008 I.CJ. Rep. 412, 7
23-34 (Nov. 18).
96. See generally Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Croat. v. Serb.), Judgment, 2015 I.CJ. Rep. 1 (Feb. 3).
97. Id. 9 106.
98. Croat. v. Serb., 2008 I.CJ. at 466-67, 146.
99. Croat. v. Serb., 2015 I.C.J. at 47, 71103-04.
100. Id. at 48, 1 106.
101. Id. 107.
102. Id.
103. See Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Croat. v. Serb.), Verbatim Record, 7 41-42 (Mar. 21, 2014, 10:00
666 [Vol. 48
State Succession and Responsibility
April 27, 1992, had indicated "not only that it was succeeding to
the treaty obligations of the SFRY, but also that it succeeded to the
responsibility incurred by the SFRY for the violation of those treaty
obligations.
'
" 10 4
In contrast, Serbia maintained, in addition to its other arguments
relating to jurisdiction and admissibility, that there was no
principle of succession to responsibility in general international
law; refuting Croatia's argument based on the Lighthouses Arbitration
tribunal award. 10 5 Serbia also maintained that all issues of succession
to the rights and obligations of the SFRY were governed by
the Agreement on Succession Issues (2001), which established a
procedure for considering outstanding claims against the SFRY.106
It may also be interpreted as an implicit acceptance of successionbut
only on the basis of treaty obligations (lex specialis). However,
the Court was not asked to look into this Agreement, which would
be outside its jurisdiction. 10 7
The Court accepted the alternative argument of Croatia as to its
jurisdiction over acts prior to April 27, 1992.10° The ICJ stated that
to determine whether Serbia was responsible for violations of the
Convention:
the Court would need to decide:
(1) whether the acts relied on by Croatia took place; and if they
did, whether they were contrary to the Convention;
(2) if so, whether those acts were attributable to the SFRY at the
time that they occurred and engaged its responsibility; and
(3) if the responsibility of the SFRY had been engaged, whether
the FRY succeeded to that responsibility. 10 9
Here, the Court asserted that the rules on succession that may
come into play in Croatiav. Serbia, fall into the same category as
those on treaty interpretation and responsibility of States. 110 Howa.m.)
(Prof.James Crawford, advocate for Croatia, argued the following: "We say the rule
of succession can occur in particular circumstances if it is justified. There is no general
rule of succession to responsibility but there is no general rule against it either.").
104. Croat. v. Serb., 2015 I.CJ. at 48, 107.
105. Id. at 48-49, 108.
106. See Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Croat. v. Serb.), Verbatim Record, 9 52-53 (Mar. 27, 2014, 3:00
p.m.) (Prof. Andreas Zimmermann, advocate for Serbia, referred to Article 2 of Annex F of
the Agreement, which provides for the settlement of disputes by the Standing Joint
Committee.).
107. Croat. v. Serb., 2015 I.CJ. at 42-43, 47, 88, 103.
108. Id. 117.
109. Id. at 50, 112.
110. Id. at 51, 115.
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The Geo. Wash. Int'l L. Rev.
ever, not all of the ICJJudges shared the majority view.'11 AsJudge
Xue said in her declaration, "[t]o date, in none of the codified
rules of general international law on treaty succession and State
responsibility, State succession to responsibility was ever contemplated....
Rules of State responsibility in the event of succession
remain to be developed."'112
Another example of responsibility issues with respect to States
emerging from the former Yugoslavia is the investment arbitration
concluded in Mytilineos Holdings SA." 3 Here the arbitral tribunal
noted that after the commencement of the dispute, Montenegro
declared its independence.' 14 Although not asked to decide the
issue of State succession, the tribunal noted that the Republic of
Serbia would continue in the same international legal status as Serbia
and Montenegro."15
Germany's unification provides an additional example of State
succession.11 6 Following re-unification, the Federal Republic of
Germany (FRG) assumed the liabilities arising from the delictual
responsibility of the German Democratic Republic (GDR).117 One
of the issues at the time of unification concerned compensation for
possessions expropriated from German nationals and foreigners in
the territory of the former GDR." 8 Except for a few lump sum
agreements prior to unification," 9 the GDR refused to compensate
the victims. 120
It was not untilJune 29, 1990-immediately prior to
unification-that the GDR adopted an act settling these property
issues.12' The FRG and GDR adopted a joint declaration on the
settlement of outstanding issues of property rights on June 15,
111. Id. at 145, 524.
112. Id. at 5, 23 (declaration of Xue, J.).
113. Mytilineos Holdings SAv. 1. The State Union of Serbia & Montenegro, 2. Republic
of Serbia, Partial Award on Jurisdiction (UNCITRAL, Sept. 8, 2006).
114. Id. 158.
115. Id.
116. DUMBERRY, supra note 2, at 84-93.
117. Treaty on the Establishment ofGerman Unity art. 24, Aug. 31, 1990, 30 I.L.M. 463
(1991).
118. The GDR concluded such agreements with Austria, Denmark, Finland, Sweden
and Yugoslavia. ENTEIGNUNG UND OFFENE VERMOGENSFRAGEN IN DER EHEMALIGEN DDR
(Gerghard Fieberg & Harald Reichenbach eds., 1991).
119. See id.
120. See DUMBERRY, supra note 2, at 87.
121. See Gesetz zur Regelung offener Verm6gensfragen [Law for the Settlement of
Open Property Questions], Sept. 28, 1990, BUNDESGESETZBLA-rr [BGBLIII, at 1159 (Ger.).
668 [Vol. 48
State Succession and Responsibility
1990.122 Under Section 3 of thejoint declaration, property confiscated
after 1949 would be returned to the original owners.123
The legislative, executive, and judicial branches have addressed
the issue of the unified German state and have addressed the issue
of claims arising from wrongful acts of the former GDR. In 1999,
the FRG Federal Administrative Court dealt with the issue of State
succession in the context of a private claim for restitution.12 4
Although the Court, in its decision on July 1, 1999, refused to
accept responsibility of the FRG for the internationally wrongful
act of expropriation committed by the GDR against a Dutch citizen,
it recognized that the obligations of the former GDR to pay
compensation transferred to the successor State.' 25
Another example of the transfer of responsibility of the predecessor
State to the successor State is the agreement between the
FRG and the United States concerning the Settlement of Certain
Property Claims, executed in 1992.126 This agreement, based on a
lump sum compensation, covers claims of U.S. nationals resulting
from nationalization, expropriation, and other measures taken by
the GDR between 1949 and 1976.127
These examples from Germany demonstrate that a successor
State can agree to take over the obligations arising from internationally
wrongful acts of a predecessor State towards a third State,
or possibly towards other actors or individuals. Even scholars, who
are generally skeptical of State succession regarding responsibility,
tend to support the view that the principle of non-succession does
not apply in cases of voluntary unification. 128
III. RIGHT TO REPARATION IN CASE OF STATE SUCCESSION
One of the principal reasons to question the theory of non-succession
to State responsibility is the "humanization" of international
law, which places an emphasis, inter alia, on reparation of
damages suffered by individuals-whether by diplomatic protection
or other mechanisms. Therefore, the right to reparation on
122. Id. at 1237.
123. Id.
124. Bundesverwaltungsgericht [BVerwG] [Federal Administrative Court] July 1, 1999,
NEUEJURISTISCHE WOCHENSCHRIFT [NJW] 3354, 1999 (Ger.).
125. DUMBERRY, supra note 2, at 90.
126. Agreement Between the Government of the United States of America and the
Government of the Federal Republic of Germany Concerning the Settlement of Certain
Property Claims, Ger.-U.S., May 13, 1992, T.I.A.S. No. 11959, 1911 U.N.T.S. 27.
127. WESTON ET AL., supranote 64, at 333.
128. CRAwroRD, supra note 11, at 703
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The Geo. Wash. Int'l L. Rev.
behalf of individuals should not disappear in the case of cession,
dissolution, or unification, but instead should transfer to the successor
State.
Here claims to reparations are transferred for individuals to the
successor State is more common than the transfer of State obligations
arising from the commission of an internationally wrongful
act.129 In cases of damages suffered by individuals, the responsibility
of a State may not be invoked if "the claim is not brought in
accordance with any applicable rule relating to the nationality of
claims."130 This reflects the traditional rule that a State can only
present claims with respect to damage to the persons of its
nationality.
This rule arises from the Mavrommatiscase, a landmark decision
on diplomatic protection related to concessions in the British Mandate
of Palestine, granted under the rule of the Ottoman
Empire. 13 1
The decision made clear that the nationality of claims
rule'3 2 is a general condition for invoking responsibility in applicable
cases.
The rules on diplomatic protection traditionally include the condition
of "continuous nationality," which requires that the protected
person was a national of the given State at the time of the
commission of the internationally wrongful act and at the time of
presentation of the claim.13 3 This rule was upheld by the Permanent
Court of International Justice (PCIJ) in the Panevezys-Saldutiskis
Railway case in 1939.134 Even at the time of the decision, this
rule lacked unanimous support. 13 5 As Judge van Eysinga said in his
dissenting opinion, this rule, if applied in its absolute form, would
lead to inequitable results.1 36 He argued that such rule "cannot
resist the normal operation of the law of State succession." 3 7
129. DuMBERRY, supranote 2, at 409-11.
130. G.A. Res. 56/83, annex, U.N. Doc. A/56/49 (Vol. I), Responsibility of States for
Internationally Wrongful Acts, art. 44(a) (Dec. 12, 2001).
131. Mavrommatis Palestine Concessions, Judgment, 1924 P.C.I.j. (ser. A) No. 2, at 12
(Aug. 30).
132. The rule relating to the nationality of claims means that a State is entitled to
protect its subjects. Therefore only the State of nationality may invoke the responsibility of
a wrongdoing State. See ILC Commentaries, supra note 4, art. 44, 2.
133. See DUMBERRY, supra note 2, at 338.
134. Panevezys-Saldutiskis Railway, Judgment, 1939 P.C.I.J. (ser. A/B) No. 76 (Feb. 28).
135. See DUMBERRY, supra note 2, at 344.
136. 1939 P.C.I.J. (ser. A/B) No. 76, at 35.
137. Id.
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State Succession andResponsibility
This rule was criticized by scholars due to the inequitable results
that it produced under strict application. 138 Scholars argued that
this rule should not apply in cases of involuntary changes of nationality
or changes affected by territorial changes. 139 The application
of this rule in the context of State succession, where the change of
nationality of individuals is not of their own free choice but instead
the consequence of succession, is not appropriate. 40 The reason is
that such strict application would result in the inability of both the
continuing State and the successor to exercise diplomatic protection
on behalf of an individual injured as a result of an internationally
wrongful act committed before the date of succession. 141 Some
authors even suggested that the traditional rule of continuous
nationality should be abandoned altogether. 142
As a result, when codifying the Articles on Diplomatic Protection
in 2006, the ILC adopted an exception to the rule of continuing
nationality in cases where a natural person has the nationality of a
predecessor State. 143 Similarly, a modified rule of continuing
nationality of corporations was adopted in Article 10, making it
possible for a State to protect corporations by holding its nationality
or the nationality of its predecessor. 144 This exception to the
rule of continuing nationality has been confirmed in cases of State
succession for the protection of both natural and legal persons.
Some decisions show a more nuanced approach. In Loewen, the
ICSID investment arbitration tribunal established under NAFiTA,
138. See, e.g., CHARLES RoussEAu, DROIT INTERNATIONAL PUBLIC 119 (1983).
139. See D.P. O'CONNELL, INTERNATIONAL LAw 1035-36 (1970); Paul de Visscher, Cours
G-'nral de Droit InternationalPublic, 136 RECUEIL DE L'ACADIMIE DE DROIT INTERNATIONAL
[RCADI] 1, 166 (1972).
140. See DUMBERRY, supra note 2, at 342.
141. Id.
142. See Francisco Orrego Vicufia, Interim Report on "The ChangingLaw of Nationality of
Claims", in INT'L LAW ASS'N, REPORT OF THE SIxTY-NINTH CONFERENCE 37 (2000); EuC
WYLER, LA REGLE DITE DE LA CONTINUIT DE LA NATIONALITt DANS LE CONTENTIEUX INTERNATIONAL
133-34 (1990).
143. See Int'l Law Comm'n, Report on its Fifty-Eighth Session, U.N. Doc. A/61/10, art.
5, 2 (2006) ("Notwithstanding paragraph 1, a State may exercise diplomatic protection in
respect of a person who is its national at the date of the official presentation of the claim
but was not a national at the date of injury, provided that the person had the nationality of
a predecessor State or lost his or her previous nationality and acquired, for a reason unrelated
to the bringing of the claim, the nationality of the former State in a manner not
inconsistent with international law.").
144. Id.art. 10, 1 (A State is entitled to exercise diplomatic protection in respect of a
corporation that was a national of that State, or its predecessor State. .. ").
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The Geo. Wash. Int'l L. Rev.
Chapter 11 focused on the rule of continuing nationality.145 On
the one hand, the award confirmed that when claims were:
negotiated and resolved only at a governmental level, any
change in nationality of the claimant defeated the only reason
for the negotiations to continue .... This history has changed as
the nature of the claim process has changed. As claimants have
been allowed to prosecute claims in their own right more often,
provision has been made for amelioration of the strict requirement
of continuous nationality. 146
On the other hand, the award highlighted relaxation of the standard
that emerged in the language of the treaties. 147 It pointed
out that "there is no such language in the NAFTA document and
there are substantial reasons why the Tribunal should not stretch
the existing language to affect such a change."148 For this reason,
the tribunal decided that it lacked jurisdiction to determine claims
of the Loewen Group Inc. (TLGI) under the North American Free
Trade Agreement (NAFTA), because TLGI assigned the claims to a
Canadian subsidy of a United States corporation. 149 Nevertheless,
the jurisdictional decision based on the terms of NAFTA should
not call into question the exception for continuing nationality in
cases of involuntary change of nationality related to State
succession.
A. Cases of Reparationin the Context of Succession After World War I
International case law includes several decisions where the rule
of continuing nationality did not apply to the claim presented by a
successor State.1 50
The first cases date back to the 1920s.' 51
In PabloNdjera, the France-Mexico Claims Commission ruled in
favor of the admissibility of diplomatic protection exercised by
France with respect to a French national, born in Lebanon, who
suffered injury in Mexico during the Mexican Revolution of 1916
when the French national was a national of the Ottoman
Empire.152 The Tribunal supported the decision with two argu-
145. The Loewen Group, Inc. & Raymond L. Loewen v. U.S., ICSID Case No.
ARB(AF)/98/3, Award, 225-29 (June 26, 2003).
146. Id. 1 229.
147. Id. 1 230.
148. Id.
149. See id. 240.
150. DUMBERRY, supra note 2, at 367.
151. Id.
152. Pablo Njera (Fr. v. Mex.), 5 R.I.A.A. 466, 467 (French-Mexican Claims Comm'n
1928).
672 [Vol. 48
State Succession and Responsibility
ments. 153 First, the President of the Tribunal noted that the rule of
continuing nationality did not apply when the circumstances of the
case (in particular the term "French proteges" in the Compromis)
show that the parties had the contrary intention. 154 Second, it held
that the rule of continuing nationality should apply in a much less
strict manner in cases of involuntary change of nationality as a
result of State succession) 55
Another case, which confirms the protection of individuals is
admissible in the context of State succession, is FinnishShipowners,
submitted by Finland against Great Britain.156 In this arbitration
case, at the time of the commission of internationally wrongful act
(before 1917), Finland was not yet an independent State and as
such the victims held Russian nationality.1 57 In spite of this, Great
Britain did not invoke the rule of continuing nationality.15 8 The
arbitrator implicitly endorsed the notion that a new State may be
entitled to claim reparations for damage, which occurred when the
national (or corporation) did not hold the claiming State's nationality
at the time of injury? 59
Similar issues appeared before the Mixed Arbitration Tribunals
established on the basis of Versailles Peace Treaty between Germany
and the Allied and Associated Powers. 160 Other peace treaties,
which governed similar issues, were signed between the Allies
and other Central Powers, including Austria, Hungary, Bulgaria,
and Turkey.
161
The Mixed tribunals were similar in that all had jurisdiction over
three different types of claims for material damage suffered by
individuals: (a) claims between individuals originating from their
pre-war relations, including contract-related debts; (b) claims by
nationals of the Allies against Germany and other Central Powers
for damage resulting from exceptional war measures with respect
to the property, rights, and interests of individuals; and (c) claims
by nationals of the Central Powers for measures, including expro-
153. See id. at 487-88.
154. Id.
155. Id. at 488.
156. Claim of Finnish Shipowners (Fin. v. U.K.), 3 R.I.A.A. 1479, 1481 (1932).
157. See DUMBERRY, supranote 2, at 370.
158. Id.
159. Id.
160. See LAWRENCE MARTIN, THE TREATIES OF PEACE 1919-1923, 199 (1924).
161. Saint-Germain-en-Laye Treaty, Sept. 10, 1919, 14 Supp. to AM. J. INT'L L. 344
(1920) (Austria); Neuilly-sur-Seine Treaty, Nov. 27, 1919, 14 Supp. to AM. J. INT'L L. 185
(1920) (Bulg.); Trianon Treaty,June 4, 1920, 15 Supp. to AM.J. INT'L L. 1 (1921) (Hung.);
Lausanne Treaty, July 24, 1923, 28 L.N.T.S. 11 (Turk.).
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priation, taken by the newly formed States, which emerged as a
result of dissolution of multinational empires. 162
Given that a number of new States emerged after World War I,
including Czechoslovakia, Poland, Kingdom of Serbs, Croats, Slovenia,
Finland, Lithuania, Latvia, and Estonia, as well as Armenia,
Azerbaijan, and Georgia (which soon became part of the USSR),
the strict application of the continuing nationality rule would have
deprived nationals of those States of any possibility to present
claims for reparation, as they were not nationals of the predecessor
States at the time the damage was incurred.163 Therefore, the
Mixed tribunals interpreted Article 304(b) of the Versailles Treaty
in a manner that would make it possible for nationals of the Allied
and Associated Powers164 to submit claims, even though they did
not possess the nationality of those States when the damage
occurred. 165
The rule of the Mixed Arbitration Tribunals established that a
person would be considered a national of the Allied and Associated
Powers, if at the time the Versailles Treaty was entered into force,
he or she had acquired that nationality. 66
B. Modern Praxis ofReparation of Individuals in Cases of State
Succession
One of the most important bodies for the adjudication of claims
presented by States on behalf of the injured nationals and corporations
has been the United Nations Compensation Commission
(UNCC) .167 The commission was established to settle claims arising
out of the Iraq's invasion and occupation of Kuwait in 1990.168
The UNCC released Decision No. 10 in 1992, indicating that
"[i] n the case of Governments existing in the territory of a former
federal state, one such Government may submit claims on behalf of
nationals, corporations or other entities of another such Govern-
162. See MARTIN, supra note 160, arts. 296, 297e, 297h.
163. See DUMBERRY', supra note 2, at 373.
164. The Allies in the WWI, i.e. the Great Britain, France, Italy, Japan, the United
States, as well some smaller States, including newly established States, such as
Czechoslovakia.
165. DUMBERRY, supranote 2, at 373-74.
166. National Bank of Egypt v. German Government and Bank ffir Handel und Industrie
(Dec. 14, 1923 & May 31, 1924), in 4 RECUEIL DES DtCISIONS DES TRIBUNAUX ARBITRAUX
MIXTES 233 (2006).
167. The responsibility of Iraq was declared in the Security Council Resolution 687
(Apr. 8, 1991) and the United Nations Compensation Commission (UNCC) was set up as a
subsidiary body of the Security Council by Resolution 692 (May 20, 1991).
168. Id.
674 [Vol. 48
State Succession and Responsibility
ment, if both Governments agree." 169 This was decided just as the
Soviet Union and Yugoslavia began to dissolve and a few months
before the dissolution of Czechoslovakia.1 70
Interestingly, the provision
was adopted at the suggestion of the Russian delegation in
order to "protect the interests of claimants in the former Soviet
Union."
171
The subsequent case law of the UNCC shows it has not enforced
the rule of continuing nationality, but rather allows successor
States to submit claims for compensation on behalf of their new
nationals. 172 This was true when Czechoslovakia submitted several
claims prior to its dissolution on December 31, 1992.173 In one
case the UNCC Governing Council stated that the claims were initially
submitted by the Czech and Slovak Federal Republic, but the
award of compensation was to be paid to the Government of the
Slovak Republic, which was the State where the injured nationals
then lived.174 In another decision, the Governing Council said that
the claims were "submitted before the Czech and Slovak Federal
Republic ceased to exist. Awards of compensation are to be paid to
the Government of the Czech Republic and Slovak Republic,
respectively."
1 75
Other examples relate to compensation of victims of the Nazi
regime for injuries suffered during World War 11.176 In the postwar
period the Federal Republic of Germany started to compensate
victims. The first example was the 1952 Agreement Between the
State of Israel and the Federal Republic of Germany on Compensation,
where the State of Israel only came into existence in 1948,
169. See United Nations Comp. Comm'n, Decision by the Governing Council of the
United Nations Compensation Commission at the 27th Meeting, Sixth Session, U.N. Doc.
S/AC.26/1992/10, at 5 (1992); John R. Crook, The United Nations Compensation Commission-A
New Structure to Enforce State Responsibility, 87 Am. J. INT'L L. 144, 151-52 (1993).
170. DavidJ. Bederman, The United Nations Compensation Commission and the Traditionof
InternationalClaims Settlement, 27 N.Y.U. J. INT'L L. & POL. 1, 31 (1994).
171. See id.
172. See DUMBERRY, supra note 2, at 380.
173. Id. at 381.
174. United Nations Comp. Comm'n, Decision Concerning the First Instalment of
Claims for Serious Personal Injury or Death (Category "B" Claims) taken by the Governing
Council of the United Nations Compensation Commission at its 43rd meeting, UN Doc. S/
AC.26/Dec.20 (1994).
175. United Nations Comp. Comm'n, Decision Concerning the First Instalment of
Claims for Departure from Iraq or Kuwait (Category "A" Claims) taken by the Governing
Council of the United Nations Compensation Commission at its 46th meeting, U.N. Doc.
S/AC.26/Dec.22 (1994).
176. See DUMBERRY, supra note 2, at 382.
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The Geo. Wash. Int'l L. Rev.
concerning the victims who were, at the time of persecution,
nationals of Germany or other European States (e.g. Poland) .177
Thereafter, Germany adopted several national laws that established
funds for indemnification of the victims of Nazi persecution
and later for the victims of slave or forced labor. The first was the
Federal Law for the Compensation of the Victims of National
Socialist Persecution (BEG) in 1953.178 Subsequently, a number of
other measures were instituted, including the "Hardship Fund" in
1980, which provided compensation for Nazi victims who suffered
severe health damage and were facing hardship, 179 and the Fund
under Article 2 of the Agreement on the Enactment and Interpretation
of the Unification Treaty in 1990, which provided pensions
for the victims of persecution after the re-unification of the former
GDR into the FRG,180 and the Central and Eastern European Fund
(1998).181
The process led to the adoption of the Law on the Creation of
the "Remembrance, Responsibility and Future" Foundation in
2000.182 Under such the German government and German companies
provided assets to the Foundation to compensate individuals
who had performed forced labor in concentration camps or
other areas. 183 During the Final Plenary Meeting, which created
the Foundation, a Joint Statement was signed by Germany, the
United States, Belarus, the Czech Republic, Ukraine, Israel,
Poland, Russian, the Foundation Initiative of German Enterprises,
the Claims Conference, and the Jewish organization Claims Con-
177. Agreement between the State of Israel and the Federal Republic of Germany,
Sept. 10, 1952, 162 U.N.T.S. 205.
178. Bundeserg-nzungsgesetz zur Entschadigung ffir Opfer der nationalsozialistischen
Verfolgung [The Federal Law for the Compensation of the Victims of National Socialist
Persecution], Oct. 1, 1953, BUNDESGESETZBLAT I [BGBL I] at 559, as amended June 29,
1956 (Ger.).
179. See HardshipFund, CLAIMS CONFERENCE: THE CONFERENCE ON JEWISH MATERIAL
CLAIMS AGAINST GERMANY, http://www.claimscon.org/what-we-do/compensation/back
ground/hardship.
180. See Article 2 Fund, CLAIMS CONFERENCE: THE CONFERENCE ON JEWISH MATERIAL
CLANIS AGAINST GERMANY, http://www.claimscon.org/what-we-do/compensation/back
ground/article2.
181. See DUMBERRY, supranote 2, at 387-88.
182. Gesetz zur Errichtung Einer Stiftung "Erinnerung, Verantwortung und Zukunft"
[Law on the Creation of the "Rememberance, Responsibility and Future" Foundation],
Aug. 2, 2000, BUNDESGESETZBLATT I [BGBL I] at 1263; STIFTUNG ERINNERGUNG VERANTWORTUNG
ZUKUNFT, http://www.stiftung-evz.de; see also Sean D. Murphy, ContemporaryPracticeof
the United States Relating to InternationalLaw, 97 AM. J. INT'L L. 681, 692-95 (2003).
183. Murphy, supra note 182, at 692.
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State Succession and Responsibility
ference.18 4 Many of the signatory States represented victims who
were not nationals of those countries at the time of the injury.18 5
Even though some signatory States did not exist at the time of the
wrongful acts, they were not precluded from presenting claims on
behalf of individuals who did not have this nationality at the time
of injury.
186
An identical solution was accepted by Austria, when it adopted
the 2000 Reconciliation Fund Act 18 7 and signed agreements with
six Central and Eastern European countries (Belarus, the Czech
Republic, Hungary, Poland, the Russian Federation and
Ukraine). 188 Half of whom were new States that had emerged from
the dissolution of the Soviet Union and Czechoslovakia.18 9
The above cases further support the conclusion that the rule of
continuing nationality does not apply in situations of State succession.
Therefore, a successor State is able to submit responsibility
claims on behalf of the individuals who did not have its nationality.
CONCLUSION
The Article has shown that the traditional theory of non-succession
in the field of State responsibility for internationally wrongful
acts no longer corresponds to the current state of international
law. Starting with a survey of doctrinal views, the Article addressed
two main questions. First, whether there is a rule of international
law excluding, in cases of State succession, any transfer of responsibility
to a successor State. The analysis of State practice and international
case law shows that no such general rule exists. In many
cases, there was a succession relating to responsibility, in particular
in connection with State succession regarding treaties and State
debts. However, the practice is not uniform and State succession
does not occur in all cases. Second, whether a successor State can
present a claim to reparation on behalf of its nationals for damage
184. Gemeinsame Erklrung anldsslich des abschliefenden Plenums zur Beendigung
der internationalen Gesprfche fiber die Vorbereitung der Stiftung "Erinnerung, Verantwortung
und Zukunft", [The Joint Statement], July 17, 2000, BUNDESGESETZBLA-rT II
[BGBL II] at 1383 (Ger.).
185. Id.
186. See DUMBERRY, supranote 2, at 389.
187. Bundesgesetz fiber den Fonds ffirfreiwillige Leistungen der Republik Osterreich
an ehemalige Sklaven und Zwangsarbeiter des nationalsozialistischen Regimes [Vers~hnungsfonds-Gesetz]
[Federal Act on the Fund for Voluntary Benefits of the Republic of
Austria for Former Slave and Forced Laborers of the National Socialist Regime], Aug. 8,
2000, BUNDESGESETZBLATr I [BGBL I] at 775 (Austria).
188. DUMBERRY, supra note 2, at 386-87.
189. Id. at 387.
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678 The Geo. Wash. Int'l L. Rev. [Vol. 48
suffered at the time when they had the nationality of a predecessor
State. This Article demonstrates that these successor States could
assert such claims. In these cases, it is possible to assert a new rule
of international law, confirmed-as an exception from the rule of
continuous nationality-in Articles on diplomatic protection,
adopted by the U.N. International Law Commission in 2006.