Succession of States to Multilateral Treaties

Inhaltsverzeichnis

Table of Contents

A) Introduction
a) The notion of succession
b) The period of decolonization
aa) Treaties of devolution
bb) Unilateral declarations

B) Rules relating to succession of States in respect of treaties
a) The regimes of boundary and other territorial regimes
b) Newly independent States
c) Uniting and separation of States

C) Cases of succession of States to multilateral treaties
a) Germany
b) USSR
c) Yugoslavia
d) Czechoslovakia

D) Automatic succession to multilateral treaties - reflect of customary law?

E) Conclusion

Bibliography

Appendix

A) Introduction

The early 1990s were marked by a wave of instances of State succession. Accordingly, a field of international law which seemed to have become largely irrelevant after the end of the decolonization process suddenly regained major importance.

The issue of State succession can arise in a number of defined circumstances, which mirror the ways in which political sovereignty may be acquired by, for instance, decolonization of all or part of an existing territorial unit, dismemberment of an existing State, secession, annexation and merger. In each of these cases a once recognised entity disappears in whole or in part to be succeeded by some other authority, thus precipitating problems of transmission of rights and obligations.

The issue of succession to treaties has been probably the most difficult aspect of State succession as well as the most controversial and unsettled. State practice has been contradictory and has not recognised one particular approach, while doctrinal discussions are equa lly diverse. The outcome of the International Law Commission’s work¹, which had started in 1968, was the Vienna Convention on the Succession of States in Respect of Treaties which was adopted in 1978². The drafting of this Convention was largely influenced by the practice of former colonies, but also by other cases of State succession occurring after 1945, like for instance the unification of Vietnam in 1976 or the creation of Bangladesh³. The Convention is only applicable under Article 7 with regard to a succession occurring after the entry in force of the Convention itself (except in cases of paragraphs 2 to 4 of Article 7)⁴, although, of course, such rules in it as reflect customary would be independently binding⁵.

The Convention only entered into force in 1996 after fifteen States⁶ratified or acceded to it.

In this report, first the notion of succession and the period of decolonization will be treated. Later, the rules relating to succession of States in respect of treaties as they are stated in the 1978 Vienna Convention will be described. The problem of succession of States to multilateral treaties will be illustrated and the State practice will be interpreted by using recent cases of succession of States (Germany, USSR, Yugoslavia and Czechoslovakia). Finally, the question will be posed, whether automatic succession to multilateral treaties, as it is foreseen in Article 34 of the 1978 Vienna Convention, reflects customary law or not.

a) The notion of succession

The definition of State succession adopted in the 1978 Vienna Convention was based upon the factual criterion, that is:

“the replacement of one state by another in the responsibility for the international relations of territory”⁷.

This definition was made with regard to succession in respect to treaties⁸. Four different forms of State succession can be distinguished:

- Transfer of territory;

- Unification of States (incorporations and merger);

- Separation;

- Dissolution⁹.

The notion of State succession should be distinguished from questions of successio n of governments, particularly revolutionary succession, and consequential patterns of recognition and responsibility.

b) The period of decolonization

The practice of States in area of succession with respect to treaties is predominantly linked to the ga ining of independence of former colonies from the metropolis. It is characterised by diversity and the absence of clear and precise rules.

aa) Treaties of devolution

In many cases, problems were dealt by bilateral agreements as between colonial power and new State¹⁰. The system of devolution agreements signed by the colonial power, with the successor, newly decolonised State, was used by, for instance, the United Kingdom¹¹, France¹²and the Netherlands¹³. If there are some variations in the terms of devolutio n agreements, their general character is the same: they provide for the transmission from the predecessor to the successor State of all the obligations and rights of the predecessor State in respect of the territory under treaties concluded by the predecessor and applying to the territory¹⁴.

In theSummary of Practice of the Secretary-General as Depositary of multilateral treatiesit is stated that: “the usually very general wording[of devolution agreements]does not allow for a formal action to be taken by the Secretary-General as the depositary of an individual treaty.¹⁵…the Secretary-General, ... , would treat such an agreement as an instrument of succession, but only if the treaties concerned were clearly and specifically identified.”¹⁶

Article 8 of the 1978 Vienna Convention¹⁷provides that such agreements by themselves cannot affect any third State.

bb) Unilateral declarations

The system of treaties of devolution, was not seen as satisfactory by many new States and several of them resorted to unilateral declarations, providing for a transitional period during which treaties entered into by the predecessor State would continue in force and be subject to review as to which should be accepted and which rejected.

For instance, instead of entering into a devolution agreement with the United Kingdom, the Government of Tanganyika transmitted a unilateral declaration to the Secretary-General of the United Nations, declaring that "the Government of Tanganyika proposes to review each of them individually and to indicate to the depositary in each case what steps it wishes to take in relation to each instrument - whether by way of confirmation of termination, confirmation of succession or accession¹⁸." The precedent set by Tanganyika has been followed by a number of other newly independent States whose unilateral declarations have, however, taken varying forms¹⁹.

Treaty (with exchange of Notes) between the Government of the United Kingdom of Great Britain and Northern Ireland and the provisional Government ofBurmaregarding the recognition of Burmese independence and related matters (p. 163); see also Morvay,Souveränitätsübergang und Rechtskontinuität im Britischen Commonwealth, pp. 21-24.

Now, Article 9 of the 1978 Vienna Convention deals with unilateral declarations and emphasises that such a declaration by the successor State alone cannot by itself affect the rights and obligations of the State and third States²⁰.

B) Rules relating to succession of States in respect of treaties

a) The regimes of boundary and other territorial regimes

A succession of States does not, as such, affect a boundary established by a treaty or obligations and rights established by a treaty and relation to the regime of a boundary. In other words, Article 11, thus, refers to boundaries established by a treaty²¹and states that these are unaffected by a succession of States²². This provision reinforces international practice with regard to the sanctity of frontiers (in absence of change by consent) and may be linked with Article 62 (2) of the 1969 Vienna Convention on the Law of Treaties, which stipulates that a fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty that establishes a boundary²³. Manoeuvring boundary regime, irrespective of the claims of the successor State and/or third States, is designed to keep the equilibrium of international relations²⁴. It is now well established practice that new States succeed to the borders of the predecessor State as such. This reflects the need to insure the stability and finality of boundaries in the interests of international peace and security²⁵.

By virtue of Article 12 provides that a succession of States does not, as such, affect rights and obligations relating to the territory established by treaty with regard to other States²⁶. Examples of such arrangements might include demilitarised zones, rights of transit, port facilities and other servitudes generally²⁷. The International Commission identified "treaties of a territorial character" as having been regarded both in traditional doctrine and in modern opinion as unaffected by a succession of States²⁸. Accordingly, in the Gabcikovo-Nagymaros case the Court considers "that Article 12 reflects a rule of customary international law"²⁹.

Where an existing State acquires territory, which is not itself a State, Article 15 provides as general rule that the treaties of the predecessor State cease to be applicable with regard to that territory, while the treaties of the successor State extend to the area, unless the exception mentioned in paragraph (b) of this Article takes place³⁰. This provision expresses the so called “moving treaty- frontiers rule”³¹or “moving boundary rule”³². For example, when the US annexed Hawaii in 1898, its treaties were extended to the islands and Belgium was informed that the US-Belgium commercial agreement were thenceforth to be applied to Hawaii also³³, similarly it was held that after 1919, German treaties would not apply to Alsace-Lorraine, while French treaties would thereafter be extended to that territory³⁴.

b) Newly independent States and the “clean slate” principle

Newly independent States are defined in the 1978 Vienna Convention³⁵as successor State the territory of which immediately before the date of the succession of States was a dependent territory for the international relations of which the predecessor State was responsible³⁶.

By virtue of Article 16, such States are deemed to benefit from the „clean slate“ rule. This means, that a decolonised State is not bound by any treaty by reason only of the fact that at the date of the succession of States the treaty was in force in respect of the territory to which the succession of States relates. What such a State has is a general right of option to be party to multilateral treaties.

In his separate opinion to the Genocide case (Bosnia and Herzegovina v. Yugoslavia),Judge Weeramantrydealt with the theoretical base of the clean slate principle³⁷and wrote: „Theoretically, the clean slate principle can be justified onseveral powerful basesthe principle of individual State autonomy, the principle of self-determination³⁸, the principle of res inter alios acta, and the principle that there can be no limitations on a State's rights, except with its consent. Newly independent States should not have to accept as afait accomplithe contracts of predecessor States, for it is self-evident that the new State must be free to make its own decisions on such matters."³⁹

After having stated the general “clean slate” rule, Article 17 (1.) admits that such a State may become a party to multilateral treaties, which had previously been in force with respect to the territory in question, by notification of succession⁴⁰. This does not apply in the cases mentioned in Article 17 (2.) and (3.)⁴¹.

With regard to reservations, in the terms of Article 20 (1), the newly independent State shall be considered as maintaining any reservation to the treaty, to which it made a notification of succession, unless, when making the notification, it expresses a contrary intention or formulates a reservation which relates to the same subject- matter as that reservation⁴².

c) Uniting and separation of States

Part IV of the 1978 Vienna Convention is involved with the effects of the succession of States in respect of treaties in case of the "uniting and separation of States".

Under Article 31, where a new State is created by a merger of existing States, any treaty in force on the date of succession in respect of either or any of them continues in force in respect of the successor State unless all the parties to the treaty otherwise agree or unless it appears from the treaty or is otherwise established that the application of the treaty in respect of the successor State would be incompatible with the object and purpose of the treaty or would radically change the conditions for its operation⁴³. Such a treaty will only continue in force with respect to the particular territory to which it had previously applied, unless the successor State makes a notification that the treaty is to apply in respect of its entire territory⁴⁴. The Article 31 situation must be distinguished from the newly independent State category and from the situation envisaged in Article 15 where territory not forming a State is transferred to an existing State⁴⁵.

As for multilateral treaties not yet in force on the date of the succession of States, there is an obligation on the uniting States to make their intention expressly clear by notification that the "entire territory" should be considered as a contracting State, if one of the predecessor uniting State, was already a party to the treaty or treaties not yet in force. This provision under Article 32 may place an unnecessary burden on a predecessor State. The same condition could as well be satisfied by a single act of notification after the multilateral treaties have finally entered into force⁴⁶.

Where a part (or parts) of the territory of a State separate to form one (or more) States, whether or not the predecessor State continues to exist, Article 34 provides that any treaty in force at the date of succession in respect of the entire territory of the predecessor State continues in force for each of the successor States so formed. Any treaty which applied only to part of the territory of the predecessor State which has become a successor State will continue in force in respect of the latter one⁴⁷. Only under the conditions mentioned in paragraph 2 these provisions will not apply⁴⁸.

As far as the predecessor State is concerned in such a situation (assuming the predecessor State remains in existence), Article 35 provides that existing treaties remain in force after the succession in respect of the remaining territory, unless the conditions expressed in a), b) or c) are fulfilled⁴⁹.

In Article 34 the concept of automatic succession to multilateral treaties is expressed. The question whether automatic succession reflects customary law or not will be posed later.

C) Cases of succession of States to multilateral treaties

a) Germany

The unification of Germany is one of the most important examples of a unification of two States in recent times⁵⁰. In 1989-1990, the German question, which had been open since 1945, found a definite answer in the form of a reunification of the Federal Republic of Germany (FRG) and the German Democratic Republic (GDR)⁵¹and the whole of Berlin⁵². On 31 August 1990⁵³a Treaty of Unification (Einigungsvertrag) was concluded between the FRG and the GDR. The Treaty of unification was concluded in accordance with Article 23 of theGrundgesetzof the FRG. According to this provision the constitution could be extended to the other part of Germany after voluntary adhesion of the relevantLänder.

Article 11 of this treaty provided that all treaties of the FRG would extend to the territory of the GDR⁵⁴. Indeed, in the case of Germany, it would have been politically unthinkable not to extend the FRG's old treaties to the fiveLänderof the former GDR as well⁵⁵. Moreover, some exceptions were made for treaties related to the stationing of foreign troops in West Germany⁵⁶and double taxation treaties of the FRG⁵⁷. Almost all of the treaty partners of the FRG accepted the approach contained in Article 11 of the Unification Treaty⁵⁸, the content of which had also been notified to all Member States of the United Nations as well as to the respective depositaries of multilateral treaties⁵⁹. The Netherlands appears to have been the only State which did object to the automatic extension of treaties with the FRG to the territory of the united Germany. The Netherlands Government specifically referred to the principle of Article 31 of the 1978 Vienna Conve ntion, which declares that there must be continuity in pre- union treaties but that is limited to the respective territories, and that therefore the explicit agreement of the other State party, i.e., the Netherlands in this case, is required with respect to bilateral treaties. After consultations both States reached an understanding⁶⁰.

The fate of the treaties of the former GDR is regulated in Article 12 of the Unification Treaty. It declares the readiness of the reunified Germany to (re)negotiate them in good faith, subject to the competencies of the EC.⁶¹Thus the general rule contained in Article 31, paragraph 2 of the 1978 Vienna Convention according to which in a case of unification, the treaties of both predecessor States remain in force within the territorial limitations which applied beforehand, was not abided by. The FRG argued that unification was a fundamental change of circumstances and applied therebussic stantibusrule⁶². Article 12 of the Unification Treaty, which was notified generally to all contracting partners of the GDR, should be interpreted as a mainly procedural norm, providing for consultations with these contracting partners⁶³.

In reality, as to multilateral treaties to which the GDR had been a party, it seems that they, too - with some exceptions - were considered to have ceased to be in force by that date by virtue of the absorption of the GDR into the FRG⁶⁴. Indeed, it seems that Germany only became a contracting party to a very limited number of multilateral treaties to which the GDR alone had previously been a party,inter aliathe treaty founding the international organisation Intersputnik⁶⁵, the international organisations Petrobaltik and Interozeanmetall.

There is unanimity in both doctrine and practice that the German unification did not constitute a case of merger or fusion of the two German States into a single new one, but the incorporation of the GDR into the continuing FRG⁶⁶.

b) Union of Soviet Socialist Republics (USSR)

The fate of the USSR was finally sealed at a meeting he ld at Alma Ata on 21 December 1991, when ⁶⁷11 Soviet Republics (except Georgia) declared that "with the establishment of the Commonwealth of Independent States, the Union of Soviet Socialist Republics ceases to exist"⁶⁸.

With regard to the USSR, one has to distinguish between three categories of countries:

- the Russian Federation as the continuing State of the USSR;

- the Baltic States which do not consider themselves to be successor States to the Soviet Union

(Estonia, Latvia and Lithuania);

Democratic Republic under the aspects of the protection of legitimate expectations, the interests of the states

concerned and the treaty obligations of the Federal Republic of Germany. The discussion shall take into account the principles of a free democratic basic order founded on the rule of law, observe the competences of the European Communities and shall be aimed at regulation or determining those treaties’ continued applicability, adjustment or expiration.

(2)The united Germany shall define its position concerning the devolution of international treaties oft the German

Democratic Republic after consultations with the contracting parties concerned as well as the European Communities, if the latters’ competences are affected.

(3)….

English translation in: Giegerich, o.c. [above, note 51], pp. 443-444; german original text in: BGBl. 1990 II, p. 893.

- the other former Republics of the USSR (Armenia, Azerbaijan, Byelorussia, Georgia, Moldova, Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, Ukraine and Uzbekistan).

TheRussian Federationhas right from the beginning of its existence claimed to be the continuing State("gossoudarstvo-prodolzatel"⁶⁹) of the USSR which is supposed to be distinguished from the notion of successor State⁷⁰. This concept of the Russian Federation has been accepted by the other States of the former USSR and it has been expressly confirmed by a significant number of Member States of the Council of Europe which have either concluded agreements with the Russian Federation reiterating this concept (e.g. Finland, France, Norway, Switzerland, United Kingdom) or have unilaterally stated that they consider the Russian Federation to be the continuing State of the USSR (e.g. Belgium, Germany, and Sweden)⁷¹. One of the reasons for the acceptance of the continuity of Russia in the identity of the USSR is, obviously, the need to maintain the obligations of the latter in force. The Russian Federation continued the treaty relations of the former USSR, unless such treaties were localised on the territory of one of the successor States of the Soviet Union⁷².

A letter of the Russian President Yeltsin was transmitted to the Secretary-General, which read as follows:

"I have the honour to inform you that the membership of the USSR in the United Nations, including the Security Council and all other organs an organisations of the United Nations system, is being continued by the Russian Federation ...".

Because of no objection was raised after the circulation of these letters among the United Nations Members, the Russian Federation took over the seat of the USSR in the Security Council, in the General Assembly, and in all other organs and continued to exercise the rights and obligations of the USSR⁷³. Since a State must in its depositary practice follow the views adopted by the international community Switzerland, for example, considered Russia to be the continuing State of the former Soviet Union and, subsequent to having verified the formalities involved and having informed the other contracting parties, substituted the designation "Russia" for that of the "USSR" in the treaties deposited with it⁷⁴.

Finally, the practice followed by Russia with respect to multilateral treaties is that of continuity, in accordance with the general rules of State succession and the 1978 Vienna Convention.

The threeBaltic Stateshave claimed to be identical to the three States that had existed on their territory until 1940⁷⁵. Indeed they all three made declarations stating that, given their legal status, they arenot successor Statesto the USSR. Accordingly, the Baltic States have never made a declaration of succession in respect of any multilateral treaties previously concluded by the Soviet Union. Each of them restored the constitution that existed before their annexation by the USSR, as well as the multilateral treaties made before 1940⁷⁶. They had toapplyto become Members of the United Nations and other international organisations which did not exist before their annexation.

On the one hand the Baltic States have recognised continuity in the multilateral treaties made before 1940 and, on the other, have invoked the clean-slate principle and acceded to later multilateral treatiesex novo. The Baltic States were treated specially and the majority of States, which had refused to recognise the illegal Soviet annexation, seem to have accepted the claim of the Baltic States to be identical with the pre-1940 countries and, hence, not to be successor States of the former Soviet Union⁷⁷.

Theother former Republics of the USSRhave since their independence either acceded to multilateral treaties which had previously been entered into by the Soviet Union or have made declarations of succession⁷⁸. Kyrgyzstan, for instance, has declared itself to be thesuccessorState in relation to the 1899 and 1907 Hague Conventions for the Pacific Settlement of International Disputes. Kazakhstan, Kyrgyzstan, Tajikistan and Turkmenistan, for instance, have made declarations ofsuccession to the Geneva Conventions 1949 and additional Protocols. In contradiction to this practice Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Turkmenistan, Uzbekistan followed very often the constitutional procedure ofaccessionto multilateral treaties⁷⁹. Accordingly, it has to be pointed out that the practice of the other former Republics of the USSR is non uniform to a great degree.

c) Yugoslavia

From the point of ⁸⁰view of the international law, the statute ofCroatia, Slovenia, BosniaHerzegovinaand finally theFormer Yugoslav Republic of Macedoniais clear. These new entities are the successor States of the Socialist Federal Republic of Yugoslavia (SFRY).

On 29 December 1992, Bosnia-Herzegovina transmitted to the Secretary-General of the United Nations, as depositary of the 1948 Genocide Convention, a Notice of Succession⁸¹and declared itself to be asuccessor Stateto this Convention. In its third preliminary objection which Yugoslavia raised in this case, it has contested the validity and legal effect of the Notice of Succession, contending that, by its acts relating to its accession to independence, the Republic of Bosnia-Herzegovina had flagrantly violated the duties stemming from the "principle of equal rights and self-determination of peoples". In their opinion, Bosnia-Herzegovina was not qualified to become a party to the Genocide Convention. The Court rejected this argument by saying that Bosnia-Herzegovina as a Member of the United Nations, in virtue of Article XI of the Genocide Convention, could have become a party to the Convention and that therefore the circumstances of its accession to independence are of little consequence⁸². Accordingly, the Court concluded that Bosnia-Herzegovina could become a party to the Convention as a result ofsuccession⁸³.

Croatia, for instance, applied to the Ministry of Foreign Affairs of Spain, as depositary, forsuccessionto the Convention for the Protection of the Mediterranean Sea against Pollution (Mediterranean Convention) of 1776 and additional Protocols, to which the former Yugoslavia had been a party, in accordance with Article 26 which covers the accession of new member States. Spain considered Croatia a successor State of Yugoslavia and transmitted certified copies of the notification to the other parties, as provided in Article 77 (1.) of the 1969 Vienna Convention and Article 29 (1.) of the 1976 Mediterranean Convention.

The Former Yugoslav Republic of Macedonia has, in general,succeededto the majority of the universal treaties deposited with the Secretary-General of the United Nations and other depositaries⁸⁴.

The position of the newFederal Republic of Yugoslavia(Serbia/Montenegro) (FRY) is more complicated. The FRY considered itself to be identical in legal terms with the former Socialist Federal Republic of Yugoslavia.

This concept of continuity of State was not accepted by a large part of the international community⁸⁵and also not by the other successor States. While Slovenia, Macedonia and Bosnia- Herzegovina recognised each other immediately after proclaiming their independence, this was not the case of the FRY in relation to the abovementioned States⁸⁶. The refusal to accept the concept of automatic continuity was also influenced by the advisory opinions rendered by the Arbitration Commission of the International Conference on the Former Yugoslavia⁸⁷.

The Security Council, in itsResolution 757 of May 30, 1992, noted that:

“the claim of the Federal Republic of Yugoslavia (Serbia and Montenegro) to continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations has not been generally accepted.”

In itsResolution 777 of September 19, 1992,the Council then “considered” that:

“the State formerly known as the SFRY has ceased to exist” and that the new Yugoslavia “cannot continue automatically the [UN] membership” of the old Yugoslavia⁸⁸.

Following this attitude of the international community, for instance, the Netherlands as depositary State of multilateral treaties then decided to confirm that the FRY (Serbia and Montenegro), like the other former republics of the SFRY, couldbecome a partyto the 1899 Hague Convention for the Pacific Settlement of Internationa l Disputes. Also Switzerland decided that the FRY (Serbia and Montenegro) wasnotto be regarded as the continuing State of the SFRY in the treaties of which it is as depositary⁸⁹.

The decision of the International Court of Justice in the Genocide Case⁹⁰does not formally address the issue whether the FRY succeeded to the Genocide Convention, or whether the Convention remained applicable taking into account the claimed identity of the FRY with the SFRY. In its Judgment of 11 July 1996 the Court mentions the formal declaration of the FRY, on

27 April 1992 and an official Note of 27 April 1992 from the Permanent Mission of Yugoslavia to the United Nations, both confirming the intention of the FRY to remain bound by the international treaties to which the former Yugoslavia was a party⁹¹. Since, the Court observes, furthermore, that it has not been contested that Yugoslavia was party to the Genocide Convention it concludes finally that the FRY was "bound" by its provisions. So here again the Court does not expressly say whether the FRY has to be regarded as a continuing State or as successor State, but it only states that the FRY wasboundby the Convention. The question, on which basis the FRY became bound, remains unanswered. The practice⁹²and the doctrine stayed contradictory with regard to the statute of the FRY⁹³.

To escape the situation of “dilemmas and controversies membership rights”⁹⁴ the Government of Yugoslavia finally seems to have accepted not to be the continuing State of the former Yugoslavia. On 27 October 2000, President Konstunica addressed a letter to the Secretary- General requestingadmissionof the FRY to the membership of the United Nations⁹⁵. The FRY also made anotification of successionto the Convention on the Prevention and Punishment of the Crime of Genocide which includes a reservation on Article IX⁹⁶. Later, they made an Application for revision of the Judgement of 11 July 1996 based on Article 61 of the Statue of the Court. Yugoslavia stated that its admission to the United Nations as a new Member on 1 November 2000 constitutes "a new fact", which was obviously unknown to both the Court and to Yugoslavia at the time of the 1996 Judgment.

d) Czechoslovakia

The 1 January 1993 the Czech and Slovak Federal Republic (CSFR) ceased to exist⁹⁷. Both successor States (the Czech Republic and the Slovak Republic) of the CSFR have accepted the principle of automatic succession(ipso facto)in regard of all treaties to which the CSFR had beforehand been a party⁹⁸.

In a letter dated 16 February 1993, received by the Secretary-General on 22 February 1993 and accompanied by a list of multilateral treaties deposited with the Secretary-General, the Government of theCzech Republicnotified that:

“In conformity with the valid principles of international law and to the extent defined by it, the Czech Republic, as asuccessor Stateto the Czech and Slovak Federal Republic, considers itself bound, as of 1 January 1993, i.e. the date of the dissolution of the Czech and Slovak Federal Republic, by multilateral treaties to which the Czech and Slovak Federal Republic was a party on the date, including reservations and declarations to their provisions made earlier by the Czech and Slovak Federal Republic. The Government of the Czech Republic have examined multilateral treaties the list of which is attaches to this letter. The Government of the Czech Republic considers to be bound by theses treaties as well as by all reservations and declarations to them by virtue of succession as of 1 January 1993. The Czech Republic, in accordance with the well established principles of international law, recognises signatures made by the Czech and Slovak Federal Republic in respect ofallsigned treatiesas if they were made by itself⁹⁹.”

Subsequently, in a letter dated 19 May 1993 and also accompanied by a list of multilateral treaties deposited with the Secretary-General the Government of theSlovak Republicnotified a declaration with nearly the same content¹⁰⁰.

As regards multilateral treaties, each of the two successor States has informed the depositary of such a treaty as to its wish to continue membership in place of the former CSFR, a procedure which has usually been accepted by the other States parties to such treaties¹⁰¹. This procedure must be understood as having an only declaratory meaning, because in case of a successor State falling under Article 34 (1) (both States had accepted the principle of automatic succession) a notification is not necessary to establish its status as a contracting State to a multilateral treaty.

But it has to be pointed out that the position of the Slovak Republic was not as clear as the position of the Czech Republic. It seems to be that they had a more selective attitude towards multilateral treaties, because of the fact that their lists were less extensive.

The International Court of Justice in the Gabcikovo-Nagymaros case left the question open whether Article 34 of the 1978 Vienna Convention might by now be considered to embody a rule of customary international law¹⁰²since it stated that "Article 12[of the 1978 Vienna Convention] reflects a rule of customary international law" and that, therefore, the 1977 treaty on the Gabcikovo- Nagymaros project was also binding in the relation between Hungary and the Slovak Republic.

The Czech Republic has assumed the depositary functions of the predecessor State [the CSFR as depositary] with regard to multilateral treaties because of the mere fact that the State archives were held in Prague. On the basis of an agreement concluded between the successor States, concerning the division of archives, the originals of multilateral treaties deposited with CSFR remained in Prague. Although there was no official notification of this fact to the relevant States parties, the Czech assumption of the duties of the predecessor State was not put to question by them¹⁰³.

D) Automatic succession to multilateral treaties - reflect of customary law?

The concept of automatic succession is expressed in Article 31¹⁰⁴and Article 34¹⁰⁵of the 1978 Vienna Convention, but it applies only in case of unification and separation. A "notification of succession" is essentially unnecessary.

In a first step, judge ad hocKreºaposes the question if the term "automatic succession" constitutelex lata, a part of positive international law - or not. But he concludes that, since the condition for the coming into force of the Convention, as stipulated by Article 49 (Entry into Force), has not been fulfilled, the Convention has not become a part of the positive legal milieu¹⁰⁶. Consequently, the rule contained in Article 34 (1.) is in a state oflex ferenda, but couldbe lex lata outside the framework of the Convention as an expression of existing customary law.

Soon after his statement, the 1978 Vienna Convention entered into force on 6 November 1996 (presently 17 States are bound by the Convention¹⁰⁷), in conformity with paragraph 1 of Article 49, so that the presumptions of Judge Kreºa are no longer correct. But within the logic of his statement, we could conclude that the Convention now became part of the positive international law by the date of its entry into force.

Nevertheless, the question remains if the automatic succession constitutes customary law or not. The importance of the answer to this question becomes clearer by reading whatDeganwrote to this theme:

"Il n'y a cependant aucune chance pour que ce principe, prescrit dans l'article 34, trouve son application en tant que règle du droit conventionnel. Pour obtenir son plein effet sur cette base, il serait nécessaire que la quasi-totalité des Etats du monde deviennent parties à la Convention de 1978. La nécessité de seulement quinze instruments de ratification ou d'adhésion pour son entrée en vigueur, nous semble avoir été arbitrairement prescrite dans son article 49. Donc, le sort de ce principe et de ses effets bénéfiques, dépend de sa transformation rapide en une nouvelle règle coutumière du droit international général"¹⁰⁸.

Endorsed by the International Court of Justice in the North Sea Continental Shelf cases¹⁰⁹, the generally held view of customary law is that the creation of a rule of customary law postulates: two constitutive elements:

(1) a general practice of States, and

(2) the acceptance by States of the general practice as law¹¹⁰.

As we have seen in recent cases, the States have made notifications of succession by attaching lists of multilateral treaties by which they consider themselves to be bound. But then the question arises as to which of these "notifications of succession" have to be interpreted.

If we suppose that automatic succession reflects customary law, such a notification is not necessary to establish the status of a State as a contracting State to a multilateral treaty. The successor State would become automatically a party to the relevant multilateral treaties by the date of its accession independence¹¹¹. This practice of making notifications by the successor States and the acceptance by the depositaries could be interpreted as a statement against automatic succession. In this hypotheses, the notification would be a"constitutive element" of the establishment of the status of a State as a party to a multilateral treaty.

But it can also be argued, that the procedure of informing the depositary to which treaties the successor State wishes to continue membership in place of the former State, must be understood as having only a"declaratory meaning"and they are made only for"technical reasons". The successor State would succeed automatically to the multilateral treaty, but it would make, nevertheless, a notification of succession only to clarify the situation and to make sure that the depositary of the multilateral treaty in question will modify the lists of contracting parties. In general, the depositary States prefer to wait to modify their lists of contracting parties until they receive precise information of the successor State before they act. By doing so, they attempt to prevent the risk of annulling their acts. This procedure could also be explained by the fact that the practice of succession to treaties remains controversial and unsettled.

Another argument for the assumption of automatic succession reflects customary law could be the fact that, in practice, most of the successor States considered themselves bound by the multilateral treaties ratified by their predecessor State from the date of their independence.

The International Court of Justice handles this question very carefully. Neither in the Genocide case¹¹²nor in the Gabcikovo-Nagymaros case¹¹³it expressed an opinion to the question whether or not the automatic succession reflects international customary law.

In the Genocide case Bosnia-Herzegovina contended that the rule of "automatic succession" would necessarily apply to the Genocide Convention as a human right treaty. Yugoslavia disputed any "automatic succession" of Bosnia-Herzegovina to the Genocide Convention on this or other basis¹¹⁴. The Court did not consider it necessary, in order to decide on its jurisdiction in this case, to make a determination on the legal issues concerning State succession in respect to treaties which have been raised by the parties. It considered that at all events (automatic succession or notification of succession) Bosnia-Herzegovina was a party to the Genocide Convention on the date of the filling of its Application. So far, it is correct that the Court did not express an opinion to the question of automatic succession. But between the allegations of the parties and its own statement, in paragraph 22, the Court cites what it stated in its Advisory Opinion of 28 May 1951 relating to the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide.

In interpreting this citation the Court seems to express, firstly, that for the States themselves there is no particular reason to argue against automatic succession to human right treaties because in such a convention "States do not have any interest of their own" but merely a common interest, "one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties". Secondly, the Court points out that there is a strong interest of the General Assembly and of the States which adopted the Convention that "as many States as possible should participate." The Court says that "the complete exclusion from the Convention of one or more States would not only restrict the scope of its application, but would detract from the authority of the moral and humanitarian principles which are its basis". What the Court perhaps wants to express implicitly is that an automatic succession could be in the interest of the moral and humanitarian principles of such a convention.

From this, it could be concluded that the Court tends to have the opinion that in the case of human right treaties thereshouldbe automatic succession of States as a rule of international customary law.

Kammingaconcludes that State practice during the 1990s would strongly support the view that obligations arising from a human rights treaty are not affected by a succession of States¹¹⁵.

In the Gabcikovo-Nagymaros case, Hungary claimed that the "concept of automatic succession" contained in Article 34 of the 1978 Vienna Convention was not and is not, and has never been accepted as, a statement of general international law¹¹⁶. In contrary, Slovakia cited Article 34, which it claimed is a statement of customary international law, and which imposes the principle of automatic succession as the rule applicable in the case of dissolution of a State where the predecessor State has ceased to exist¹¹⁷.

This approach is supported byZimmermann, who says that in case of dismemberment the principle of universal succession exists as customary law. This assumption he bases on the practice of the successor States of the former SFRY and attitude of the Czech Republic and the Slovak Republic as well as this of third States¹¹⁸.

Furthermore, he supposes that under customary international law automatic succession does not yet apply to cases of separation, but that there would be a clear tendency in State practice in this direction.

Caflischstated (as “Jurisconsulte du Département fédéral des affaires étrangères”) the position of Switzerland:

"Le droit international n'apporte à cette question [meant is the question of succession to multilateral treaties, the author] aucune réponse tranchée. Selon une opinion largement partagée au sein de la communauté internationale, la Convention de Vienne de 1978 sur la succession d'Etats en matière de traités (...) ne reflète (...) pas l'état du droit coutumier et ne font, dans le meilleur des cas, qu'esquisser quelques solutions. (...) Cela signifie qu'il faut procéder à une approche de cas en cas (...)."¹¹⁹

The practice of new States which have emerged since 1993 clearly shows that automatic succession is not accepted as a positive rule¹²⁰. The attitude of the depositaries towards the legal meaning of notification of succession is unclear. The question remains open, whether they consider notifications of succession to have only a"declaratory meaning"and were made for"technicalreasons"(which would be an argument in favour of automatic succession), or whether they consider these notifications to be a"constitutive element" of the establishment of the status of a State as a party to a multilateral treaty (which would be an argument against automatic succession). The International Court of Justice never expressed an opinion to the question whether or not the automatic succession reflects international customary law.

These reasons prevent from the assumption that automatic succession would reflect international customary law. Only in case of dismemberment with regard to the practice of the successor States of the former SFRY and of the Czech Republic and the Slovak Republic and in case of human right treaties one could argue that there is a principle of automatic succession in international customary law.

F) Conclusion

Many authors attempted to develop a general theory of State succession. All these efforts failed, however, at least insofar as none of the attempts to deduce a general principles out of a general theory of the State in international and constitutional law has found recognition as a common theoretical basis for a law of State succession.

The 1978 Vienna Convention represents, in part, a codification of customary international law, but it is generally considered that recent do not entirely reflect the Convention.

O'Connell was right when he wrote long time before the drafting of the 1978 Vienna Convention:

"the creation of universally applicable rules to all types of succession of States known in history is a task impossible to fulfil".

In the absence of established international law, the actual behaviour of the international community in matters of State succession has varied according to the circumstances of each individual case.

Bibliography

Judicial and other decisions

North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark and Federal Republic of Germany v. Netherlands), Judgment of 20 February 1969, ICJ, Reports of judgments, advisory opinions and orders 1969.

Case concerning application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Order of 8 April 1993, ICJ, Reports of judgments, advisory opinions and orders 1993.

Case concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment of 3 February 1994, ICJ, Reports of jugdments, advisory opinions and orders 1994.

Case concerning application of the Convention on the Preventio n and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Judgement of 11 July 1996, ICJ, Reports of judgments, advisory opinions and orders 1996 (II).

Conference on Yugoslavia, Arbitration Commission 1991/1992 (Badinter Commission), International Law Reports, vol. 92, Cambridge, 1993, pp. 162-211.

Case concerning the Gabcikovo-Nagymaros project (Hungary v. Slovakia), Judgement of the 25 September 1997, ICJ, Reports of judgments, advisory opinions and orders 1997.

International Court of Justice, Case concerning application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Application for Revision of the Jugdment of 11 July 1996, 23 April 2001.

http://www.icj-cij.org/icjwww/idocket/iybh/iybhframe.htm

Official documents of the United Nations

United Nations Treaty Collection, Summary of Practice of the Secretary-General as Depositary of multilateral treaties, Prepared by the Treaty Section of the Office of Legal Affairs New York, 1999. ST/LEG/7/Rev. 1

http://untreaty.un.org/ola- internet/Assistance/Summary.asp

United Nations Legislative Series, Materials on Succession of States, New York, 1967. ST/LEG/SER.B/14

Multilateral Treaties Deposited with the Secretary-General, Status as at 31. December 1995, New York, 1996.

ST/LEG/SER.E/14

Multilateral Treaties Deposited with the Secretary-General, Status as at 31. December 1999, Vol. I, Part I, Chapters I to XI, New York, 2000.

ST/LEG/SER.E/18

Traités multilateraux déposés auprès du Sécrétaire Générale, Etat au 31 décembre 1999, Vol. II, Partie I, chapitres XII à XXVIII, et partie II, New York, 2000.

ST/LEG/SER.E/18

Succession of States in relation to general multilateral treaties of which the Secretary-General is the depositary: memorandum prepared by the Secretariat, Yearbook of the international law commission 1962, vol. II, Documents of the fourteenth session including the report of the Commission to General Assembly, pp. 106-131.

A/CN.4/150

Second report on succession in respect of treaties, Sir Humphrey Waldock, Special Rapporteur, Yearbook of the international law commission 1969, vol. II, Documents of the fourteenth session including the report of the Commission to General Assembly, pp. 45-68.

A/CN.4/214 and Add. 1 and 2.

Third report on succession in respect of treaties, Sir Humphrey Waldock, Special Rapporteur, Yearbook of the international law commission 1970, vol. II, Documents of the fourteenth session including the report of the Commission to General Assembly, pp. 25-60.

A/CN.4/224 and Add. 1

Manuals

Abbildung in dieser Leseprobe nicht enthalten

Articles

Abbildung in dieser Leseprobe nicht enthalten

Appendix

- Vienna Convention on the Succession of States in Respect of Treaties

- Multilateral Treaties Deposited with the Secretary-General, Status as at 31. December 1999, Vol. II, Part I, New York, 2000, pp. 277-278.

[...]

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¹See Caggiano,"The ILC draft on the succession of States in respect of treaties: a critical appraisal", pp. 69-83.

²See the history and the results: O‘Connell,„Reflections on the Succession Convention“, pp. 725-739; Treviranus, „Die Konvention der Vereinten Nationenüber Statensukzession bei Verträgen“, pp. 259-300.

³Zimmermann,Staatennachfolge in völkerrechtliche Verträge, p. 848.

⁴See concerning paragraphs 2 - 4 of Article 7: Fiedler, “Die Konvention zum Recht der Staatensukzession: Ein Beitrag der ILC zur Entwicklung eines "modern international law"", ("begrenzte Rückwirkung"), p. 26.

⁵SeeArticle 3:The fact that the present Convention does not apply to the effects of a succession of States in respect of international agreements concluded between States and other subjects of international law or in respect of international agreements not in written form shall not affect: (a) the application to such cases of any of the rules set forth in the present Convention to which they are subject under international law independently of the Convention; (b) the application as between States of the present Convention to the effects of a succession of States in respect of international agreements to which other subjects of international law are also parties.; see alsoArticle 5:The fact that a treaty is not considered to be in force in respect of a State by virtue of the application of the present Convention shall not in any way impair the duty of that State to fulfil any obligation embodied in the treaty to which it is subject under international law independently of the treaty.

⁶ Article 49 (1): The present Convention shall enter into force on the thirtieth day following the date of deposit of the fifteenth instrument of ratification or accession.

⁷SeeArticle 2 (b).

⁸Degan, “La succession d'Etats en matière de traités et les Etats nouveaux (issus de l'ex-Yougoslavie)”, p. 207.

⁹Jones, „State succession in the matter of treaties“, p. 361: Jones distinguished: cession, annexation, fusion with another state, entry into a federal union, desmeberment or partition, separation or secession.

¹⁰See theUK-Burma Agreement of 1947,Yearbook of the international law commission 1962, vol. II, p.126: "Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Provisional Government of Burma regarding the Recognition of Burmese Independence and Related Matters. Singed at London on 17 October 1947 (United Nations Treaty Series, vol. 70. P. 184).Article 2:All obligations and responsibilities heretofore devolving on the Government of the United Kingdom which arise from any valid international instrument shall henceforth, in so far as such instrument may be held to have application to Burma, devolve upon the Provisional Government of Burma. The rights and benefits heretofore enjoyed by the Government of the United Kingdom in virtue of the application of any such international instrument to Burma shall Henceforth be enjoyed by the Provisional Government of Burma."

See also: O'Connell,Independence and Succession to Treaties, pp. 97-103; O‘Connell,State Succession in Municipal Law and International Law,pp. 352-373.

¹¹ United Nations Legislative Series, Materials on Succession of States (ST/LEG/SER.B/14), 1967: Agreement as to the devolution of international rights and obligations upon the Dominions of India and Pakistan, Articles 1 to 4 (p. 162);

¹²France has signed devolution agreements withIndia, Morocco, Laos, Cambodia and Vietnam; see O‘Connell, o.c. [above, note 10; State succession], pp. 362-364; see Marcoff,“Accession a l‘indépendance et succession d‘Etats aux traités internationaux”, pp. 139-141.

¹³Round-Table Conference Agreement between the Government of the Kingdom of the Netherlands and the

Government of theRepublic of Indonesian: Agreement on Transitional Measures of 2 November 1949 (United Nations Treaty Series, vol. 69, pp. 269-270), in: Yearbook of the International Law Commission 1962 II, p. 127.

¹⁴Second report on succession in respect of treaties, Sir Humphrey Waldock, Special Rapporteur, in Yearbook of the international law commission 1969, p. 55.

¹⁵Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, note 309.

¹⁶Ibid. [above, note 15], note 310.

¹⁷Article 8 (1):The obligations or rights of a predecessor State under treaties in force in respect of a territory at the date of a succession of States do not become the obligations or rights of the successor State towards other States parties to those treaties by reason only of the fact that the predecessor State and the successor State have concluded an agreement providing that such obligations or rights shall devolve upon the successor State.

¹⁸United Nations Legislative Series,Materials on Succession of States(ST/LEG/SER.B/14), New York 1967, pp. 177- 178.

¹⁹ Sir Humphrey Waldock, o.c. [above, note 14], p. 63.

²⁰Article 9 (1.):Obligations or rights under treaties in force in respect of a territory at the date of a succession of States do not become the obligations or rights of the successor State or of other States parties to those treaties by reason only of the fact that the successor State has made a unilateral declaration providing for the continuance in force of the treaties in respect of its territory.

²¹SeeCase concerning the Territorial Dispute(Libyan Arab Jamahiriya/Chad), Judgement of 3 February 1994, ICJ, Reports of jugdments, advisory opinions and orders 1994, paragraph 77 where the Court „finds that theboundary between the Great Socialist People‘s Libyan Arab Jamahiriya and the Republic of Chad isdefinedby the Treaty of Friendship and Good Neighbourliness concluded on 10 August 1955 between the French Republic and the United Kingdom of Libya.“

²²Klein, „Statusverträge im Völkerrecht, Rechtsfragen territorialer Sonderregime“, pp. 308-313.

²³Article 62 (2.) Vienna Convention on the Law of Treaties: A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:

(a) if the treaty establishes a boundary; or

(b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

²⁴Shaw,International Law, 1991, p. 607.

²⁵Shaw,Title to Territory in Africa, pp. 240-244.

²⁶Article 12 (1.):A succession of States does not as such affect:

(a) obligations relating to the use of any territory, or to restrictions upon its use, established by a treaty for the benefit of any territory of a foreign State and considered as attaching to the territories in question.

²⁷ See the Free zones of Upper Savoy and the District of Gex case, (France v. Switzerland), 1932, P.C.I.J. Reports, Series A/B, no. 46; in Harris, Cases and materials on international law, pp. 822-824.

²⁸Official Records of the United Nations Conference on the Succession of States in respect of Treaties, Vol. III, doc. A/CONF.80/16/Add.2, p. 27, paragraph 2.

²⁹Case concerning theGabcikovo-Nagymarosproject (Hungary v. Slovakia), Judgement of the 25 September 1997, ICJ, Reports of judgements, advisory opinions and orders (1997), paragraph 123; see also Klein,"Statusverträge im Völkerrecht, Rechtsfragen territorialer Sonderregime", pp. 313-316.

³⁰SeeArticle 15.

³¹See Degan, o.c. [above, note 8], p. 214: about the "moving treaty-frontiers rule" or "variabilité des limites territoriales des traités"; Zimmermann, o.c. [above, note 3], p. 248: in the example of the German unification Zimmermann uses the term „bewegliche Vertragsgrenzen“.

³²Ribbelink,„On the uniting of States in respect of treaties”,p. 146.

³³O‘Connell, o.c. [above, note 10; State succession], pp. 377-378.

³⁴Ibid., p. 379.

³⁵seeArticle 2 (1.) (f).

³⁶O'Connell, o.c. [above, note 10; State succession], pp. 279-297.

³⁷Gruber,Le droit international de la succession d'Etats, pp. 80-89 ("La table rase dans la doctrine des nouveaux Etats").

³⁸ Eisemann/Koskenniemi, State succession: Codification tested against facts, 1996, pp. 132-134.

³⁹Separate opinion of Judge Weeramantry in the Case concerning application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), ICJ, Reports of Jugdments, advisory opinions and orders 1996 II, pp. 640-655.

⁴⁰SeeArticle 17 (1.).

⁴¹SeeArticle 17 (2.)and(3.).

⁴²For a discussion on this problem see: Gaja, „Reservations to treaties and the newly independent states“, pp. 52-68.

⁴³SeeArticle 31 (1.).

⁴⁴SeeArticle 31 (2.).

⁴⁵ Ribbelink, o.c. [above, note 32], pp. 146-147.

⁴⁶Bello, “Reflections on Succession of States in the Light of the Vienna Convention on Succession of States in Respectof Treaties 1978”, p. 317.

⁴⁷SeeArticle 34 (1.).

⁴⁸Article 34 (2.):Paragraph 1 does not apply if:

(a) the States concerned otherwise agree; or

(b) it appears from the treaty or is otherwise established that the application of the treaty in respect of the

successor State would be incompatible with the object and purpose of the treaty or would radically change the conditions for its operation.

⁴⁹Article 35:When, after separation of any part of the territory of a State, the predecessor State continues to exist, any treaty which at the date of the succession of States was in force in respect of the predecessor State continues in force in respect of its remaining territory unless:

(a) the States concerned otherwise agree;

(b) it is established that the treaty related only to the territory which has separated from the predecessor State; or

(c) it appears from the treaty or is otherwise established that the application of the treaty in respect of the predecessor State would be incompatible with the object and purpose of the treaty or would radically change the conditions for its operation.

⁵⁰See Czaplinski, “Quelques aspects juridiques de la réunification de l’Allemagne”, pp. 89-105; Klabbers,

Koskenniemi, Ribbelink, Zimmermann,State practice regarding state succession and issues of recognition, p. 82; for historical reference see Dörr,Die Inkorporation als Tatbestand der Staatensukzession, pp. 399-404.

⁵¹Giegerich, „The European Dimension of German Reunification: East German‘s Intergration into the EuropeanCommunities“, p. 384.

⁵² To the legal Status of Berlin see: Wilms, „The Legal Status of Berlin after the Fall of the Wall and German Reunification“, pp. 470-493.

⁵³Treaty of Unification: Bundesgesetzblatt (BGBl.) 1990 II, p. 889; see also Müller/Wildhaber,Praxis des Völkerrechts, p. 258.

⁵⁴Article 11 of the Unification Treaty stipulates:"The Contracting Parties proceed on the understanding that international treaties and agreements to which the Federal Republic of 'Germany in a contraction Party, including treaties establishing membership in international Organisations or Institutions, shall retain their validity and that the rights and obligations arising therefrom, with the exception of the treaties named in Annex I, shall also relate to the territory specified in Article 3 of this treaty [i.e. The territory of the former GDR, the author]. Where adjustments become necessary in individual cases, the All-German Government shall consult with the respective Contracting Parties."

⁵⁵Eisemann/Koskenniemi, o.c. [above, note 38], p. 164.

⁵⁶SeeUnification Treaty Annex Iin BGBl. 1990 II, pp. 908-909; see also Stein, “External Security and Military Aspects of German Unification”, pp. 451-469.

⁵⁷The extension of these treaties were linked to the introduction of the tax system in the newLänderidentical to that of West Germany; see Debatin,“Doppelbesteuerungsabkommen und Einigungsvertrag”,pp. 389-391; the FRG had double taxation treaties with Cyprus (16.10.1982), Sri Lanka ( 29.12.1983), Malaysia ( 29.1.1985), Sweden (

26.6.1986), Indonesia (16.3.1987), Thailand (19.5.1987), and China (8.6.1987); Zimmermann, o.c. [above, note 3], p. 252-254.

⁵⁸Papenfuss,“Les traités internationaux de la RDA dans le cadre de l'établissement de l'unitéallemande”, p. 220; Zimmermann, o.c. [above, note 3], p. 249.

⁵⁹seeMultilateral Treaties Deposited with the Secretary-General 1999(ST/LEG/SER.E/18), p. 9, note 14; Zimmermann, o.c. [above, note 3], p. 248.

⁶⁰Ribbelink, o.c. [above, note 32], p. 161; Zimmermann, o.c. [above, note 3], pp. 250-251; Letter to Parliament fromthe Minister for Foreign Affairs, 13 May 1990, Bijl. Hand. II 1993/1994 - 23730 (R. 1503) No. 1. The consultations concerned two treaties in particular: a treaty on the settlement of financial compensation for the Dutch victims of nazi persecution, and an additional protocol.

⁶¹Article 12:

(1) The contracting Parties are agreed that the international treaties of the German Democratic Republic shall, in the course of the establishment of the unity of Germany, be discussed with the contraction Partners of the German

⁶²Eisemann/Koskenniemi,State succession: Codification tested against facts, 2000, p. 405.

⁶³Oeter, „German Unification and State Succession“, p. 377.

⁶⁴Bosshard,La succession d'Etats aux traités multilatéraux et le rôle des dépositaires, p. 21.

⁶⁵Intersputnik: "Abkommen vom 15. November 1971 über die Schaffung des internationalen Systems und der Organisation und der Organisation für kosmische Fernmeldeverbindungen".

⁶⁶Eisemann/Koskenniemi, o.c. [above, note 62], p. 247.

⁶⁷See Bokor-Szego,"Questions of State identity and State succession in eastern and central europe", pp. 96-101; also Schweisfurth, „Vom Einheitsstaat zum Staatenbund“, pp. 541-702.

⁶⁸ Eisemann/Koskenniemi, o.c. [above, note 62], pp. 250-251.

⁶⁹see thenote of President Yeltsinto the Secretary General of the United Nations of January 1992, Bundesgesetzblatt 1992 II, pp. 1016-1017.

⁷⁰Eisemann/Koskenniemi, o.c. [above, note 62], pp. 255-262; Crawford,The Creation of States in International Law, pp. 400-414.

⁷¹Klabbers, Koskenniemi, Ribbelink, Zimmermann, o.c. [above, note 50], p. 98 (with the relevant documents in the

annex: Finland: Doc. FIN/30, France: Doc. FR/4, Norway: Doc. N/2, Switzerland: Doc. CH/6 and Doc. CH/19, United Kingdom: Doc. UK/162, Belgium: Doc. B/7, Germany: Doc. D/65 and D/78, and Sweden: Doc. S/28).

⁷²Zimmermann, o.c. [above, note 3], p. 380; there is a major exception to this continuance with respect to the control of thosenuclear and other weaponssubject to treaty regulation which, after the dissolution of the USSR, are now located in the successor States, such as Ukraine.

⁷³Eisemann/Koskenniemi, o.c. [above, note 62], pp. 251-252; Koskenniemi/Lehto,“La succession d’etats dans l’exURSS”, pp. 185-189.

⁷⁴ Eisemann/Koskenniemi, o.c. [above, note 62], p. 395.

⁷⁵See Yakemtchouk,„Les Républiques Baltes en droit international”, pp. 259-289; for historical reference see Dörr, o.c. [above, note 50], pp. 345-365; Germany never accepted the annexion of the Baltic States in 1940 see: Schuster, „Völkerrechtliche Praxis der Bundesrepublik Deutschland im Jahre 1990“, p. 842.

⁷⁶For example: the Baltic States reassumed their membership to the constitution of the International Labour Organisation and to treaties deposited with the ILO prior to 21 July 1940.

⁷⁷In the name of theEuropean Communitythe assembly of the ministers of foreign affairs made the following declaration: "The Community and its member States warmly welcome the restoration of the sovereignty and independence of the Baltic States which they lost in 1940. They have consistently regarded the democratically elected parliaments and governments of these States as the legitimate representatives of the Baltic people ...", in: Müller/Wildhaber, o.c. [above, note 58], p. 215.

⁷⁸Klabbers, Koskenniemi, Ribbelink, Zimmermann, o.c. [above, note 50], p. 100.

⁷⁹. Zimmermann, o.c. [above, note 3], pp. 391-398.

⁸⁰ For documents see: Stern, Le statut des Etats issus de l'ex Yougoslavie à l'UNO.

⁸¹Case concerning application of theConvention on the Prevention and Punishment of the Crime of Genocide(Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Order of 8 April 1993, ICJ, Reports of jugdments, advisory opinions and orders (1993), paragraph 18.

⁸²Ibid., paragraph 19.

⁸³Ibid., paragraph 20.

⁸⁴Eisemann/Koskenniemi, o.c. [above, note 62], pp. 396-397, pp. 421-422 and p. 423.

⁸⁵Bosshard, o.c. [above, note 64], pp. 24-25; theGovernment of Germanydeclared: “ Wir können den

Kontinuitätsanspruch der BRJ [Bundesrepublik Jugolawien] nicht anerkennen, da die SFRJ (Sozialistische Förderative Republik Jugolawien) nach dem Gutachten der EG-Schiedskommission vom 6.7.1992 durch Dismembration untergegangen ist.”, in: Stoll, "Völkerrechtliche Praxis der Bundesrepublik Deutschland im Jahre 1994", p. 1007.

⁸⁶Okrk, „Recognition of States and its (non-) implication on State succession: The case of successor States to theformer Yugoslavia“, p. 2.

⁸⁷Pellet,„L‘activitéde la Commission d‘arbitrage de la Conférence internationale pour l‘ancienne Yougoslavie“, p. 290.

⁸⁸See Blum, „Un membership of the„new“Yugoslavia: Continuity or break?“, p. 833; also Bring, „CorrespondentsAgora: The former Yugoslavia“, pp. 244-246; Malone,„Correspondents Agora: The former Yugoslavia“, pp. 246-248; Blum,„Correspondents Agora: The former Yugoslavia“, pp. 248- 251.

⁸⁹Eisemann/Koskenniemi, o.c. [above, note 62], p. 395.

⁹⁰Case concerning application of theConvention on the Prevention and Punishment of the Crime of Genocide(Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Order of 8 April 1993, ICJ, Reports of jugdments, advisory opinions and orders (1993), at 14-16.

⁹¹ Genocide case, o.c. [above, note 81], paragraph 17.

⁹²For instance, the Secretary-General as depositary of multilateral treaties, listed Yugoslavia without any footnotes of explanations; the Secretariat of the UN continued to fly the flag of the old Yugoslavia; specific requets were sent to the representatives of the FRY for payment of membership dues, such dues were indeed paid by the FRY, and receipt vouchers were issued confirming payment made by the Government of the FRY; see the Application for Revision of the Jugdment of 11 July 1996, 23 April 2001.

⁹³Bosshard, o.c. [above, note 64], p. 25; see concerning the development of recognition: Weller,“The international response to the dissolution of the Socialist federal Republic of Yugoslavia”, pp. 569-607.

⁹⁴See theApplication for Revision of the Jugdment of 11 July 1996, 23 April 2001, p. 25.

⁹⁵See o.c. [above, note 95]Annex 23of the Application for Revision of the Jugdment of 11 July 1996, 23 April 2000; the FRY was admitted as a new Member on 1 November 2000.

⁹⁶See o.c. [above, note 95], pp. 29-30: „The Federal Republic of Yugoslavia does not consider itself bound by Article IX o f the Convention on the Prevention and Punishment of the Crime of Genocide, and, therefore, before any dispute to which the Federal Republic of Yugoslavia is a party may be validly submitted to the jurisdiction of the International Court of Justice under this Article, the specific and explicit consent of the FRY is required in each case.“.

⁹⁷Malenovsky,“Problèmes juridiques liésàla partition de la Tchécoslovaquie”, pp. 305-336; Hošková,„Die Selbstauflösung der CSFR“, pp. 689-735; for historical reference see Dörr, o.c. [above, note 50], pp. 333-336.

⁹⁸ Klabbers, Koskenniemi, Ribbelink, Zimmermann, o.c. [above, note 50], p. 110, see also State Succession in Respect of Treaties Czech Republic (National Report), Milkulka Václav, Prague, February 1996 and State Succession in Respect of Treaties Slovak Republic (National Report), Milkulka Václav, Prague, January 1997 (both in: Klabbers, Koskenniemi, Ribbelink, Zimmermann, o.c. [above, note 50], pp. 396-471 and pp. 472-521).

⁹⁹Multilateral treaties deposited with the Secretary General(Status as at 31. December 1995), p. 8.

¹⁰⁰Ibid., pp. 8-9.

¹⁰¹Hošková, o.c. [above, note 97], p. 735.

¹⁰² Gabcikovo-Nagymaros case, o.c. [above, note 29], in that regard paragraph 123.

¹⁰³ Eisemann/Koskenniemi, o.c. [above, note 62], pp. 398-400.

¹⁰⁴Article 31 (1.):When two or more States unite and so form one successor State, any treaty in force at the date of the succession of States in respect of any of them continues in force in respect of the successor State unless:

¹⁰⁵Article 34 (1.):When a part or parts of the territory of a State separate to form one or more States, whether or not the predecessor State continues to exist:

(a) any treaty in force at the date of the succession of States in respect of the entire territory of the predecessor State continues in force in respect of each successor State so formed;

(b) any treaty in force at the date of the succession of States in respect only of that part of the territory of the predecessor State which has become a successor State continues in force in respect of that successor State alone.

¹⁰⁶Dissenting opinion ofJudge Kreca,in the Case concerning application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), ICJ, Reports of jugdments, advisory opinions and orders 19996 II, p. 776.

¹⁰⁷ Traité multilateraux déposés auprès du Sécrétaire Général, Etat au 31 décembre 1999 (ST/LEG/SER.E/18).

¹⁰⁸ Degan, o.c. [above, note 8], p. 221.

¹⁰⁹North Sea Continental Shelf Cases, ICJ, Reports of Jugdments, advisory opinions and orders 1969, p. 44, paragraph 77: "Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it."

¹¹⁰Dissenting opinion ofJudge Kreca, o.c. [above, note 106], p. 782: in other words: “the basis of the binding nature of international law is the “will of the international community as a whole””.

¹¹¹See Genocide case, o.c. [above, note 81], paragraph 23.

¹¹²Genocide case,o.c [above, note 81].

¹¹³ Gabcikovo-Nagymaros case, o.c. [above, note 29], paragraph 123: " The Court does not find it necessary for the purposes of the present case to enter into a discussion of whether or not Article 34 of the 1978 Vienna Convention reflects the state of customary international law."

¹¹⁴Genocide case, o.c. [above, note 81], paragraph 21.

¹¹⁵Kamminga,„State Succession in Repect of Human Rights Treaties“, p. 482.

¹¹⁶Gabcikovo-Nagymaroscase, o.c. [above, note 29], paragraph 119.

¹¹⁷ Gabcikovo-Nagymaros case, o.c. [above, note 29], paragraph 121; see also the separate opinion of Judge Bedjaoui, paragraph 23: "The Treaty is an instrument to which undeniably Slovakia succeeded: (...) because the type of succession concerned here (the dissolution of a State) is governed by the rule of continuity of succession ...".

¹¹⁸Zimmermann, o.c. [above, note 3], p. 832.

¹¹⁹ Caflisch, “La pratique suisse en matière de droit international public 1992”, p. 709.

¹²⁰ Dissenting opinion of Judge Kreca, o.c. [above, note 106], p. 781.