State Snccession to Multilateral Treaties: Recent Developments

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State Snccession to Multilateral Treaties: Recent Developments

in Austrian Review of International and European Law Online

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1 Article 2 of the Vienna Conventions of 1978 and 1983 defines state succession as: "the replacement of one State by another in the responsibility for the international relations of a territory". Cf. also Arbitration Commission of the Conference on Yugoslavia, Opinion no. 1, 92 International Law Reports, 165. 2 Principally the reunification of Germany and the dissolution of the Soviet Union, the Socialist Federative Republic of Yugoslavia (SFRY) and of the Czech and Slovak Federal Republic. There have also been other cases of state succession in the same period, which were somehow overshadowed by the events in the European "space": the accession to independence of Namibia (1990), the reunification of Yemen (1990), the transfer of sovereignty over Hong Kong (1997). 3 Thus Martti Koskenniemi refers to the "triple dilemma of treaty succession": whether the applicable law of treaty succession is that of customary law or the 1978 Vienna Convention; what is its precise content - a main rule of clean slate with the exception of some treaties, or a main rule of continuity -; and finally, whether we should apply the main rule in any present case. "The Present State of Research Carried out by the English-speaking Section of the Centre for Studies and Research", Hague Academy, Centre for Studies and Research in International Law and International Relations, State Succession: Codification Tested against the Facts, Dordrecht, Martinus Nijhoff Publishers, 1997, 144. 4 74 ILM 1978, 1488.

5 22 ILM 1983. Up to February 1998 this Convention had six signatories and five parties. Of these, five are new states which have acceded to the Convention (Croatia, Estonia, Georgia, the former Yugoslav Republic of Macedonia and Ukraine). Multilateral Treaties deposited with the Secretary General, United Nations, New York, ST/LEG/SER.E, as available on http;//www.un.org/Depts/Treaty, February 20, 1998. 6 The 1978 Convention entered into force on 6 November 1996 following the deposit of a declaration of succession by the Former Yugoslav Republic of Macedonia. Its entry into force was actually spurred by notifications of succession (Bosnia and Herzegovina, Croatia, Czech Republic, Slovakia, Slovenia), and ratifications/accessions (Estonia, Ukraine) made after 1990, even though, ironically, it is not applicable to the recent cases of succession. See Ibidem. For a current update on this Convention in the light of recent practice, G.-L. Burci, "L' entrata in vigore della Convenzione di Vienna sulla successione di Stati in materia di trattati et la prassi nell'ambito delle Nazione Unite", La Communitii Internazionale, 1997/1, 175-178. 7 Helmut Tichy, "Two Recent Cases of State Succession - An Austrian Perspective", 44 Austrian J. Publ. Intl. Law (1992) 117-136, 120. 8 D.P. O'Connell, "Reflections on the State Succession Convention", Za6RV, 1979, 725- 739. 9 Gerhard Hafner & Elisabeth Kornfeind, "The Recent Austrian Practice of State Succes- sion: Does the Clean Slate still Exist?", ARIEL, 1996/1, 1-49. 10 Such as for example the rule that territorial changes do not affect boundary regimes (arts. 11 and 12 of the 1978 Vienna Convention); see M.N. Shaw, "State Succession Revisited", Finnish Yearbook of International Law, 1994, 34-98, at 38. Cf. also, P.-M. Dupuy, Droit international public, 14e éd., Paris, Dalloz, 1998, 51-52.

I Opinion no. 9, 92 ILR 203. On the jurisprudence of this Commission, Alain Pellet, "Notes sur la Commission d'arbitrage de la Conference europeene pour la paix en Yougoslavie", AFDI, 1991, 329-348; "L'activite de la Commission d'arbitrage de la Conference pour la paix en Yougoslavie", AFDI, 1992, 220-238; "L'activite de la Commission d'arbitrage de la Conference internationale pour 1' ancienne Yougoslavie", AFDI, 1993, 286-303; also Matthew Craven, "The European Community Arbitration Commission on Yugoslavia", BYIL, 1995, 333�13. 12 H. Tichy, op. cit. (fn. 7) 122. 13 "State Succession in Respect of Law-Making Treaties", BYIL, 1952, 105-144, 120, containing references to relevant judicial and arbitral decisions. 14 UN Doc. A/CN.4/15 1, Risumi des dgcisions des tribunaux internationaux concernant la succession d'Etats, Etude redigee par le Secretariat, 1962. In the 1985 Maritime Delimitation Case (Guinea/Guinea Bissau), the arbitral tribunal referred to the 1978 Vienna Convention, stating that: "The relevant provisions of this latter Convention [concerning boundary regimesl, 1, which is not yet in force, and which in fact neither Guinea nor Guinea Bissau has adhered to, are nonetheless held to reflect customary rules of international law." 77 ILR, 657. 15 Continental Shelf Case (Tunisia/Libyan Arab Jamahiriya), Judgment 24 February 1982, ICJ Reports 1982, par. 84; Frontier Dispute (Burkina Faso/Mali), Judgment 22 Decem- ber 1986 ICJ Reports 1986, par. 17; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Judgment of 11 September 1992, ICJReports 1992, par. 399. 16 See Frontier Dispute, Continental Shelf Case; in this latter case the Court affirmed that: "The rule of continuity ipso jure of boundary and territorial treaties was later embodied in the Vienna Convention on Succession of States in respect of Treaties." ICJReports 1982, par. 84.

1� Gabcikovo-Nagymaros Project (HungarylSlovakia), Judgment, 25 September 1977, ICJ Reports 1997, 7. 18 Infra, 12. 19 Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro). Provisional Measures, Order of 8 April 1993, ICJ Reports 1993, 3; Provisional Measures, Order of 13 September 1993, ICJ Reports 1993, 325; Preliminary Objections, Judgment, 1CJ Reports 1996, 595. For commentaries see C. Gray, "Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Orders of Provisional Measures of 8 April 1993 and 13 September 1993", ICLQ, July 1994, 704-714, L. Boisson de Chazournes, "Les ordonnances en indication de mesures conser- vatoires dans 1'affair relative a 1'application de la Convention pour la prevention et la repression du crime de genocide", AFDI, 1993, 514-539, R. Maison, "Les ordonnances de la CIJ dans l'affaire relative a 1'application de la Convention sur la prevention et la repression du crime de genocide", 5 EJIL (1994), 381�100, S. Maljean-Dubois, "L'Affaire relative a 1'application de la Convention pour la prevention et la repression du crime de genocide (Bosnie-Herzegovine c. Yougoslavie), Arr6t du 11 juillet 1996, Exceptions pr6liminaires", AFDI, 1996, 357-386, C. Gray, "Application of the Convention on the Prevention and Pun- ishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Admissibility and Jurisdiction", ICLQ, July 1977, 688-693, P. Bekker and P. Szasz, "Application of the Convention on the Prevention and Punishment of the Crime of Genocide", 91 AJIL 1997/1, 121-126. 20 Herein Bosnia. 21 Herein the FRY. We should note here that, since the 1995 Dayton Agreements, the phrase "Serbia and Montenegro" has not appeared following "Federal Republic of Yugoslavia", namely in resolutions of the Security Council of the United Nations, even though it has continued to appear in General Assembly resolutions, thus creating some confusion; see Larry Johnson's remarks in ASIL Proceedings 1996, 475. We can also note this in the ICJ's decisions:

while in the two Orders, this state is referred to as "Yugoslavia (Serbia and Montenegro)", by the time of the Judgment on preliminary objections it is referred to as "Federal Republic of Yugoslavia" or simply "Yugoslavia". 22 Order of 8 April 1993, 1CJ Reports 1993, 3; Order of 13 September 1993, 1CJ Reports 1993, 325. 23 preliminary Objections, Judgment off 11 July 1996, ICJReports 1996, 595. 24 See C. Gray, op. cit.,1CLQ, July 1994 (fn. 19) 689. 25 Infra, 8, 1 l. 26 ICJ Reports 1996, par. 23. 27 Infra, 16.

28 See Ch. Gray, op. cit., ICLQ, 1994 (fn. 19) 710. It is true to say that the Vienna Conven- tion does - theoretically - provide for a system of dispute settlement for disputes arising out of its interpretation or application (Part 6 of the Convention), but the procedure, even if it were applicable, depends on the will of the parties involved. 29 Rein Mullerson, "The Continuity and Succession of States, by Reference to the former USSR and Yugoslavia", ICLQ, July 1993, 473�93, at 477. As James Crawford has written: "...there is a fundamental distinction between State continuity and State succession: that is say, between cases where the 'same' State can be said to continue to exist, despite changes of government, territory, or population, and cases where one State can be said to have replaced another with respect to certain territory." The Creation of States in International Law, Oxford,

Clarendon Press, 1979, 400. See also Matthew Craven, "The Problem of State Succession and the Identity of States under International Law", 9 EJIL (1998), 142-162. 30 To use the terms of the 1978 Vienna Convention (Art. 2.1 c,d). 31 V.-D. Degan, "La Succession d'Etats en matiere de traites et les Etats nouveaux (issus de 1'ex-Yougoslavie)", AFDI, 1996, 206-227, 210. Helmut Tichy correctly observes that: " 'identity' or 'continuity' may be accepted by the international community with regard to specific matters while not being accepted with regard to others...the reduction of the concept of 'identity' to a 'partial identity' leads to complex theoretical and practical problems.", op. cit., 120. 32 For a detailed account of the Yugoslavian crisis, see Marc Weller, "The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia", 86 AJIL 1992, 569-607. 33 Under Article 93 of the UN Charter all members of the UN are parties to the Statute and under article 35(1) of its Statute the Court is open to States parties to its Statute. See J.G. Merrills, "Interim Measures of Protection in the Recent Jurisprudence of the International Court of Justice", ICLQ, January 1995, 90-146, 96. Bosnia was somewhat inconsistent in wanting to bring an action against the FRY while at the same time it did not accept that the latter was a member of the United Nations. While introducing an action against the FRY and not denying that it and the FRY were parties to the Court's Statute, Bosnia indicated at the same time that the continuity of the FRY with the former Yugoslavia had been "vigorously contested by the entire international community:', ICJReports 1993, par. 15. Thus the Court was led to address the question of the FRY's status in the United Nations in order to determine whether it was a party to the Statute: if the FRY was a continuation of the former Yugoslavia, then it was a member of the UN, whereas if not, then Article 93 of the UN Charter could not apply. 34 Resolution 777 (1992) of 19 September 1992, ICJReports 1993, par. 15. 35 Resolution 47/1 of 22 September 1992, Ibidem, par. 16.

36 UN Doc. A/47/485 (1992), cited in ibidem, par 17. 3� ICJReports 1993, par. 18. 38 Actually, it seems that both the parties, as well as the Court, avoided this question, certainly because the question was complicated by the unclear position taken by the UN. Instead, he Court resorted to article 35(2) of its Statute which provides: "The conditions under which the Court shall be open to other States shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court." (our italics). The Court considered article XI of the Genocide Convention as a special provision contained in a treaty in force. Article 35(2) actually widens the Court's jurisdiction. 39 Or, as Matthew Craven has put it, the Court "conveniently overlooked ... that the essence of the declaration was the FRY's claim to be the continuation of the former Yugoslavia.", op. cit. (fn. 29), p. 144 (fn. 13). It also seemed to have overlooked the fact that, according to its Article XI, the Genocide Convention is open for signature "on behalf of any member of the United Nations and of any non-member state to which an invitation to sign has been addressed by the General Assembly." 40 ICJ Reports 1996, p. 610, par. 17. In a note addressed on the same date to the United Nations Secretary General, the FRY stated that: "Strictly respecting the continuity of the inter- national legal personality of Yugoslavia, the FRY shall continue to fulfil all the rights conferred to, and obligations assumed by, the SFRY in international organisations and participation in international treaties ratified or acceded to by Yugoslavia."

41 ICJ Reports 1996, 610, par. 18. 42 See S. Maljean-Dubois, op. cit. (fn. 19) 364. This just goes to show how the recent cases have confirmed that the agreement of the successor States as well as of the other members of the international community are essential criteria in establishing continuity or succession; see T. Treves, "The Expansion of the World Community and Membership of the United Nations", Finnish Yearbook of International Law, 1995, 248-278, 274; also H. Ruiz Fabri: "Le critere de la distinction reside-t-il alors dans 'la volonte proclamee par 1'une d'elles (les anciennes republiques federees) de se considerer comme (le continuateur), associee peut-etre a 1'acceptation de cette qualite par les autres'...Ce deuxieme aspect parait fondamental et doit meme etre glargi.", "Genese et disparition de 1'Etat a 1'epoque contemporaine", AFD1, 1992, 153-178, 170 (our italics). 43 That is, as the "continuation" of the former SFRY, which has not been yet accepted, or as a successor, but it has not issued any declaration to that effect; see M. Craven, op. cit. (fn. 29) 144. For an extensive discussion, Michael Wood, "Participation of Former Yugoslav States in the United Nations and in Multilateral Treaties", 1 Max-Planck Yearbook of United Nations Law, 1997, 231-257. Of course, there is no difference in practice between the two approaches with regard to the law of succession to treaties, since both the continuing state (where there is one) and the successor states in the case of dismemberment are bound by treaties to which the predecessor state is a party, unless the states concerned otherwise agree or this would be incompatible with the object and purpose of the treaty; M.N. Shaw, International Law, 4th ed., Cambridge University Press, 1997, 695. 44 Summary of the practice of the Secretary General as Depositary of Multilateral Treaties, ST/LEG/8, 1994, p. 25, par. 89; see Larry Johnson's remarks in ASIL Proceedings 1996, p. 478. Also, Michael Wood, op. cit. (fn. 43). However, some problems were created by the above mentioned document prepared by the United Nations Treaty section, in which it was elsewhere stated that: "...the FRY..remains as the predecessor State upon separation of parts of the territory of the former Yugoslavia. General Assembly Resolution 47/1 of 22 September 1992, to the effect that the FRY could not automatically continue the membership of the former Yugoslavia in the United Nations...was adopted within the framework of the UN and the context of the Charter of the UN, and not as an indication that the FRY was not to be considered a predecessor state." (par. 297). As a result of a series of protests emanating from

various States (such as the United States, Germany, as well as the other four Yugoslav States), this qualification of the FRY as a predecessor State (and indeed any reference to the former Yugoslavia) was deleted from this edition. 45 This seems to be the practice of other depositaries as well: for example, "Yugoslavia" is included in the list of parties to the ILO Conventions, see Lists of Ratifications by Conventions and by country as at 31 December 1997 ; also, the Secretary General of WIPO continues to exercize depositary functions in respect of instruments deposited by the Federal Republic of Yugoslavia concerning multilateral treaties which he administers; he has exercized such func- tions in at least four instances, and, in each instance, protest notes from member states were received. For an overview of the position of the FRY in various organizations of the United Nations System, see an interesting note prepared by the Legal Department of the Universal Postal Union (UPU) dated 16 December 1997 and addressed to the Legal Counsellors of the international organizations of the United Nations system. 46 In fact, Bosnia, along with Slovenia, Croatia and the former Yugoslav Republic of Mace- donia have in general deposited instruments of succession to the multilateral treaties to which the former Yugoslavia was a party; see M. Wood, op. cit. (fn. 43) 254. 4� According to K. Zemanek, it has served as a "useful model" for state practice, "The Legal Foundations of the International System. General Course on Public International Law", 266 RCADI 1997, p. 85. As the Arbitration Commission of the Conference on Yugoslavia has said: "there are few well established principles of international law that apply to State succession. Application of these principles is largely to be determined case by case, depending on the circumstances proper to each form of succession, though the 1978 and 1983 Vienna Conventions do offer some guidance.", Opinion no. 13, 16 July 1993, 961LR, 728.

48 According to Article 17 par. 1 of the Convention, "...a newly independent State may, by a notification of succession establish its status as a party to any multilateral treaty which at the date of the succession of States was in force in respect of the territory to which the succession of States relates." 49 Art. 34 par. 1: "When a part or parts of the territory of a State separate to form one or more States, whether or not the predecessor 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..." 50 Ibid., par. 18. 51 ICJ Reports 1993, par. 25. 52 Ibidem. 53 ICJ Reports 1996, par. 20 (our italics).

54 Judgment, 25 September 1997, par. 123. The Court turned in fact to the nature and character of the 1977 Treaty and applied another rule of the Vienna Convention contained in Article 12, according to which treaties concerning territorial regimes are not affected by a succession of states, a rule considered as reflecting customary international law. 55 ICJ Reports 1996, par. 23.

56 ICJ Reports 1993, par 24. Interestingly enough, The FRY's attitude seems to have changed in the subsequent proceedings, where it took pains to assure that Article 17 along with Articles 22 and 23 were rules of customary international law, applicable in this case. 57 See M. Koskienniemi: "The normative difference between succession and accession relates to the date from which the treaty is considered as binding: in succession from the date of independence, in accession from the date of the deposit of the instrument of accession. The usefulness of a special rule on treaty succession lies precisely in its ability to do away with rupture in the legal relationships that seems entailed in accession." op. cit. (fn. 3) 107. 5g ICJReports 1996, 611, par. 21. 59 For the FRY, the Vienna Convention embodied two principles of international law. These were the clean-slate principle and the principle of non-retroactivity of a notification of succession; Etinski, 96/7, 47. 60 See observations of Professor Suy, Pleadings, CR 96/6. On 15 June 1993, the Secretary General of the UN received from the Government of Yugoslavia the following communication: "Considering the fact that the replacement of sovereignty on the part of the territory of the Socialist Federal Republic of Yugoslavia previously comprising the Republic of Bosnia and Herzegovina was carried out contrary to the rules of international law, the Government of the Federal Republic of Yugoslavia herewith states that it does not consider the so-called Republic of Bosnia and Herzegovina a party to the [said Convention], but does consider that the so- called Republic of Bosnia and Herzegovina is bound by the obligation to respect the norms on preventing and punishing the crime of genocide in accordance with general international law irrespective of the Convention on the Prevention and Punishment of the Crime of Genocide" Multilateral Treaties Deposited with the Secretary General, Status as at 31 December 1993.

On the other hand, as was pointed out in the oral pleadings by B. Stern (CR 96/9, 15), the FRY did not react the same way to notifications of succession made by other States issued from the former Yugoslavia; this supports Bosnia's thesis that the FRY was just searching for a way of shielding itself from the Court's jurisdiction on the basis of Article IX of the Genocide Convention, and could be considered as an abuse of rights; see V.-D. Degan, op. cit. (fn. 31) 227. 61 Pleadings CR 96/6, 16. The FRY based this argument on Article 9 of the 1978 Vienna Convention which states: "Obligations or rights under treaties in force in respect of a territory at the date of succession of states do not become the obligations or rights of the successor State or of other State 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." 62 See remarks of Professor Stern, Pleadings, 96/9, 20ff. 63 E. Suy, CR 96/6, 19; in particular the wording: "having considered...wishes to succeed.." 64 Ibidem, 20. Yugoslavia submitted that Bosnia had become a party to the Convention: either on 29 March 1993, pursuant to the accession procedure provided for by Article X11I of the Convention; or on 18 March 1993, the date on which the Secretary General of the UN transmitted to the FRY the declaration of succession made by Bosnia. 65 As B. Stern remarked, "notification of succession is only there in order to confirm automatic continuity.", CR 96/9, 20. 66 As Judge Kreca pointed out, " 'automatic succession' and 'notification of succession' are mutually exclusive", since automatic succession consists of the automatic, ipso jure transfer of treaty rights and obligations. Dissenting Opinion, ICJ Reports 1996 par. 115. In any case, Article 38 par. 1 of the 1978 Vienna Convention does not provide for notifications of succes- sion in cases where Article 34 is applicable (according to article 38 par. 1, "Any notification under Articles 31, 32, 36 shall be made in writing"). See H. Tichy, "Continuity seems to refer to a formal continuity (automatic transmission of a treaty), whereas notification of succession implies only material continuity, but formal discontinuity (application of the same treaty by a new partner, effected by a constitutive - although possibly retroactive - legal act).", op. cit. (fn. 7) 125, (fn.21).

67 L. Sbolci, "La partecipazione degli Stati ai trattati multilaterali mediante notificazione di successione", Rivista di Diritto Internazionale, 1996/3, 620-654. 68 M. Koskenniemi, op. cit. (fn. 3) 104-105. 69 Separate Opinion, ICJ Reports 1996, 634-637. 70 Separate Opinion, Ibidem, 656-657. Separate Opinion, Ibidem, 645ff. In his Opinion, Judge Weeramantry listed ten reasons favouring the view of automatic succession to the Genocide Convention. 72 Dissenting Opinion, Ibidem, 775-783. �3 According to K. Zemanek: "One can generally observe that the so-called 'clean-slate' rule, which proclaimed that a new State entered the international system without any interna- tional rights and/or obligations of its predecessor devolving upon it, and which was fashionable in certain circles during the decolonization period, has apparently lost its attraction.", op. cit. (fn. 47) 84-85. Cf. also Gerhard Hafner & Elisabeth Kornfeind, op. cit. (fn. 9), where the two authors show how Austria who initially, for domestic policy reasons, favoured the clean slate rule, returned pragmatically to the mainstream. �4 It should be noted that the International Law Commission had considered the question of whether automatic succession could apply to multilateral treaties of a universal character, including humanitarian treaties but also other types of multilateral treaties, but was unable to find a solution to this problem, Yearbook of the ILC, I974-II, 172; see Shabtai Rosenne,

"Automatic Treaty Succession", in J. Klabbers and R. Lefeber (eds.), Essays on the Law of Treaties, Dordrecht, Martinus Nijhoff, 1998, 97-106, 99. 75 W. Jenks, op. cit., (fn.13), A. Gonçalves Pereira, La Succession d'Etats en matiere de traite, Paris, Pedone, 1969, 95, O. Schachter, "State Succession: the Once and Future Law", 33 VJIL, 1993, 253-260. 76 See D.P. O'Connell who, while considering that the description of a multilateral treaty as 'legislative' is misleading as a touchstone of transmissibility, nonetheless conceded that: "the pressure towards succession is noticeably more intense in the case of multilateral treaties than it is in the case of bilateral treaties, so that it cannot be said that the legislative character of a treaty...may not be decisive in the policy decision to succeed or not to succeed, and to that extent the distinction between multilateral and bilateral treaties does have juridical dimensions." "Independence and Succession to Treaties", BYBIL, 1962, 84-180, 132. 77 S. Oeter, "State Succession and the Struggle over Equity: Some Observations on the Laws of State Succession with Respect to State Property and Debts in Cases of separation and Dissolution of States", 38 German Yearbook of International Law (1995), 73-102, 74. 78 Or "world order treaties" as Professor Tomuschat has characterised them; "Obligations Arising for States without or Against their Will", 241 RCADI 1993/IV, 195-374. 79 See M.N. Shaw: "The evolution of State practice therefore since 1992 is such as to enable the conclusion to be drawn that one is on the verge of widespread international acceptance of the principle that international human rights treaties continue to apply within the territory of a predecessor State irrespective of a succession.", op.cit. (fn. 10) 84. But see the same author's more mitigated remarks in his textbook: "...it is far too early to be able to declare that continuity or a presumption of continuity is now the established norm.", International Law, op.cit. (fn. 43) 692, 698. 80 See Rein Mullerson: "New States are born not only into general customary international law but also into those universal treaties which were obligatory for their predecessors.", ', op. cit.

(fn. 29) 493. Also O. Schachter, "State Succession: The Once and Future Law", 33 VJIL, 1993, 253-260. For a more mitigated view, Oppenheim's International Law, 9th edition, Longman, 1992, 222: "...there is more room for the view that in case of separation resulting in the emergence of a new state the latter is bound by - or at least entitled to accede to - general treaties of a 'law-making' nature, especially those of a humanitarian character, previously binding on it as part of the state from which it has separated." 81 On this practice, see Johannes Chan, "State Succession to Human Rights Treaties: Hong Kong and the International Covenant on Civil and Political Rights", ICLQ, October 1996, 928-946. 82 Resolutions 1993/23, 1994/16, 1995/18. For a description of the practice of human rights bodies, see Succession of States in respect of international human rights treaties, Report of the Secretary General, Doc. E/CN.4/1996/76. 83 Ibidem, 3. 84 B. Simma, "From Bilateralism to Community Interest in International Law", 250 RCADI 1994-VI, 217-384, 357. 85 Ed. loc. Also Menno T. Kamminga, "State Succession in Respect of Human Rights Treaties", 7 EJIL (1996), 469�84, 484. For a differing opinion, Shabtai Rosenne, "Automatic Treaty Succession", op. cit. (fn. 74).

86 P.-M. Eisemann, "Bilan de recherches de la section de langue française du Centre d'etude et de recherche de I'Acad6mie", State Succession: Codification Tested against the Facts, Dordrecht, Martinus Nijhoff, 1997, 68ff. 87 state Succession in Municipal and International Law, Cambridge University Press, 1967, vol. II. With regards to multilateral conventions, O'Connell noted prophetically that: "Clearly the pressure in the direction of continuity is mounting, and it is possible to predict that within ten years the picture will be one of virtually complete continuity, achieved either by declarations of succession or by accessions."( 229). 88 M.N. Shaw, op. cit. (fn. 10) 66; also B. Stern, "Rapport preliminaire sur la succession d'Etats en matiere de traites", International Law Association, Report of the 67�h Helsinki Conference (1996), 676-677, who also comes to a conclusion that, in their great majority, states have applied the continuity rule in multilateral treaties to which their predecessor was a party. 89 K. Zemanek, op. cit. (fn. 47) 86. 90 Even though they are at the same time urged to "confirm" their intention to preserve continuity to the depositaries. Here, automatic continuity is sometimes construed as the option

(not the obligation) of a new state to succeed, without the other parties being in a position to object, see S. Maljean-Dubois, op. cit. (fn. 19) 369.

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