The Tricky Question of State Succession to International Responsibility

The Tricky Question of State Succession to International Responsibility

Consider the following scenario: state A commits an internationally wrongful act (say genocide) against state B, incurring responsibility for doing so and giving state B an entitlement to reparation. Before state B actually manages to obtain reparation from state A, state A dissolves into two new states, X and Y. What happens to A’s responsibility towards B? Does it devolve to X and Y, and how? Alternatively, what happens if A does not dissolve and manages to continue its international personality, but two of its smaller territorial units, X and Y, successfully secede from it, and become states in their own right? What then?

Both of these factual scenarios involve state succession, defined as change or transfer of sovereignty over a territory. The first scenario is one of dissolution. State A and its international personality have ceased to exist, and two new states have emerged. The second scenario is one of succession alongside continuation. State A is territorially diminished, but its identity and international personality remain the same. Again, however, two new successor states have emerged on the territory of their predecessor. The dissolution of Czechoslovakia and the Socialist Federal Republic of Yugoslavia are examples of the former scenario, while the best example of continuation and separation is the Soviet Union, which continued its existence as the Russian Federation, along a number of new successor states. (Note that a continuator state is often misleadingly termed as the successor state, even though there may be a number of actual successor states alongside the continuator.)

_

Much thought has been given to the topic of the effects of state succession on treaties, both by states and by scholars, but much less so to succession to responsibility. The traditional customary rule on succession to treaties has generally been this: a successor state has a ‘clean slate’ in respect of the treaties of its predecessor. It thus had a choice whether or not to become a party to these treaties, by performing a notification of succession. It, however, automatically succeeded to treaties in rem or treaties that followed the territory, such as border agreements, whether it wanted to or not. On the other hand, a continuator state like Russia by definition remains a party to all treaties of its predecessor, because for all intents and purposes it is the predecessor. Thus, for example, Russia continued the Soviet Union’s UN membership and its permanent seat on the Security Council.

The traditional clean slate rule has first been challenged by the 1978 Vienna Convention on the Succession of States in respect of Treaties. The Convention provides that a successor state will automatically succeed to all of its predecessor’s treaties (Art. 34(1)(a)). Exceptionally, however, in the case of so-called ‘newly independent states’, defined basically as former colonies (but despite the name not as all new independent states – Art. 2(1)(f)), the clean slate rule would still apply (Art. 16). The Convention has not garnered much support from states, and has come into force only recently with a very small number of parties. It is thus generally not considered to be reflective of customary law, especially in its abolition of the clean slate rule, or in its confinement solely to former colonies, a category that it is now practically extinguished.

Yet, even if the rule of automatic succession does not, as a matter of customary law, apply in respect of all treaties, some have argued – among them foremost the UN Human Rights Committee in General Comment No. 26 – that this rule is applicable to the category of human rights treaties, or more broadly speaking, treaties of a humanitarian character. Since these treaties are made to safeguard the inherent rights of individuals, so the argument goes, once these rights are recognized by treaty they cannot simply disappear due to the succession of states, but must apply continuously. Though the principle of automatic succession to human rights treaties is often treated as orthodoxy by human rights lawyers, it is in fact highly controversial and is not supported by much state practice (see generally A. Rasulov, ‘Revisiting State Succession to Humanitarian Treaties: Is There a Case for Automaticity?’, 14 EJIL (2003) 141 (sceptical of the automatic succession argument); M. Kamminga, ‘State Succession in Respect of Human Rights Treaties’, 7 EJIL (1996) 469 (advocating automatic succession)).
But this brings me to my main topic. While we have at least some rules on state succession to treaties, even if some of them are contested, we have little or no rules on state succession to international responsibility. To return to the hypothetical that I have given above: one issue is what happens to, say, the Genocide Convention when states X and Y become independent of state A. But when state A has already violated the Convention vis-à-vis state B, the succession of X and Y to A’s responsibility is a distinct and separate issue from their succession to A’s treaties.

My hypo from above is of course not really a hypo, but an actual (and litigated!) real-world example. In 1992, the Socialist Federal Republic of Yugoslavia (SFRY) dissolved into five successor states: the Federal Republic of Yugoslavia (FRY, Serbia and Montenegro); Croatia; Macedonia; Bosnia and Slovenia. Until 2000, the FRY claimed that it was not a successor, but a continuator of the SFRY. That claim was generally, but far from unambiguously, rejected by the international community, with most states considering the FRY to be just another successor state of the SFRY. After the fall of the Milosevic regime, the FRY renounced its claim to continuity. In 2003, the FRY changed its federal structure and its name into Serbia and Montenegro. In 2006, Montenegro became independent with the consent of Serbia and the central authorities. In 2008, Kosovo attempted to unilaterally secede from Serbia, the legality of this secession of course still being hotly disputed.

There were thus two cycles of state succession in the former Yugoslavia. The first was the dissolution of the SFRY and the creation of its five successor states. The second was the independence of Montenegro, and possibly Kosovo, from the FRY/Serbia and Montenegro, whose legal personality was continued by Serbia. Note that this is precisely the material legal difference between the two cycles. While the FRY’s claim to continuity with the SFRY failed, Serbia’s continuity with the FRY/Serbia and Montenegro is undisputed – Serbia for example continuing all of the FRY/Serbia and Montenegro’s treaties, as well as membership in the UN and the Council of Europe. (Note also that, whatever the historical appraisal, Montenegro and possibly Kosovo can only be the successor states of the FRY/Serbia and Montenegro, not the SFRY, which ceased to exist in 1992).

In the meantime, Bosnia accused the FRY to have committed genocide in Bosnia during the 1992-1995 Bosnian conflict, and filed an application with the ICJ. Croatia likewise filed an application against Serbia in 1999. Much of the parties arguments in both of these cases revolved around the question of state succession to the Genocide Convention itself. Thus, for instance, the FRY argued that Bosnia did not become a party by succession to the Convention in 1992. After 2000, when the FRY renounced its claim of continuity with the SFRY, the FRY started arguing that it was in fact not a party to the Genocide Convention until it acceded to it in 2001, and that the ICJ thus lacked jurisdiction to hear the cases on the merits. Both Bosnia and Croatia argued that the FRY became a party to the Convention through (automatic) succession. In its 2007 judgment in the Bosnian Genocide case, the Court found that its 1996 jurisdiction judgment was res judicata and that it could not be reopened. In its 2008 jurisdiction judgment in the Croatian Genocide case, in which it could not rely on a res judicata argument, the Court (not very convincingly) found that the FRY’s claim of continuation amounted to a notification of succession, and that the FRY was a party to the Convention on that basis. In both cases, however, the Court avoided pronouncing on the supposed principle of automatic succession to human rights treaties. (I know, I know, this whole history sounds terribly complicated; for a more comprehensive (and more comprehensible) account, see here).

So, that’s that on succession to treaties, but what about succession to responsibility? Recall that the FRY/Serbia and Montenegro/Serbia was accused of committing genocide in Bosnia. The ICJ found that Serbia was not responsible for the sole instance of genocide during the Bosnian conflict, the Srebrenica massacre. But what if it was, and what would have been the consequences of Montenegro’s independence in 2006? Because Serbia was the continuator of the FRY/Serbia and Montenegro, its responsibility, and its obligation to provide reparation for the genocide would have been undiminished. But what about Montenegro? Would it also have a share – and if so, how much – in this responsibility, or would it start with a clean slate? Does it matter that the case was one of succession and continuation, rather than succession and dissolution? What if Serbia and Montenegro had dissolved into several new successor state, without a continuator, like Czechoslovakia or the SFRY? Would all of these new states share a part of the responsibility, jointly or severally?

When confronted with this set of questions in the Bosnian case, the ICJ understandably said hell no! – we’re not going there, and dodged the issue. How? Well, said the Court, whatever Montenegro’s responsibility as a successor state might be for any genocide as a substantive matter, Montenegro has not given its consent to the pending ICJ litigation. Therefore, though Montenegro may or may not have succeeded to (a part) of the FRY/Serbia and Montenegro’s responsibility, it had not succeeded to the litigation. The Court thus lacked jurisdiction in respect of Montenegro, but had jurisdiction in respect of Serbia, the FRY/Serbia and Montenegro’s continuator (2007 judgment, paras. 76-78)

This ICJ litigation was not a one-time curiosity. Currently pending before the European Court of Human Rights is the case of Bijelic v. Montenegro and Serbia (Application No. 11890/05). The applicants in that case allege violations of the ECHR that occurred after the then Serbia and Montenegro became a party to the ECHR in March 2004, but before the independence of Montenegro in June 2006. All of the alleged violations deal with the acts of the public authorities of Montenegro. So, the question now presented to the Court is who is responsible for these alleged violations: Serbia, as the continuator state of Serbia and Montenegro – even though the authorities in Belgrade had absolutely nothing to do with the applicants, who were at all times under the authority of the Montenegrin government? Montenegro, as a successor state of Serbia and Montenegro, that moreover has organic continuity, if not continuity in legal personality, with the authorities who are claimed to have violated the applicants’ rights? Or is it both, and if so, what kind of joint responsibility are we dealing with?

Of particular note is that the Venice Commission for Democracy through Law has recently filed an amicus curiae brief to the European Court on this very issue, which is available here. It’s a very interesting read, and please do take a look at the possible solutions that the Commission is advancing. Especially interesting is its discussion of Article 10 of the ILC Articles on State Responsibility, on the responsibility of a new state for the acts of the insurrectional or other movement that has created it. Article 10 has also cropped up in the ongoing Croatian Genocide case before the ICJ, but its application is in my view far from unproblematic.

As the readers might expect, my thoughts on the question of state succession to responsibility are that it is pretty much indeterminate. Very little work has been done on the topic, and there is much room for further scholarship – the most valiant effort so far has been the excellent recent book by Patrick Dumberry, State Succession to International Responsibility, Nijhoff, 2007. But even less thought has been devoted to the topic by states, and there is very little actual practice to go with. While the issue of state succession to treaties is at least in principle capable of some sort of generalized answer, it is very hard to do so in respect of state succession to responsibility. For the time being, casuistry and ad hocery are unavoidable. To my mind only one thing is clear. The customary clean slate rule in respect of state succession to treaties cannot apply by analogy to state succession to international responsibility. It is based on a voluntaristic paradigm – states have, and should always have, the freedom whether or not to enter into treaties – but state succession to responsibility cannot operate under the same paradigm, as a wrongful act has already been committed. The wronged state’s entitlement to reparation cannot, as a general matter, be wiped out simply because the responsible state has underwent territorial transformations. Where do we go from there, however, is entirely beyond me.