State Succession to International Responsibility

Patrick Dumberry, Ph.D., Graduate Institute of International Studies, Geneva, Switzerland, is Professor at the University of Ottawa (Law Faculty, Civil Law Section). He is the author of more than 90 publications in the fields of international investment law and international law, including nine books.

• Foreword to the First Edition (2007)Acknowledgments to the Second EditionAbbreviationsPart 1General IntroductionGeneral Introduction of Part 11 The Issue Addressed in This Study2 The Objective of This Study3 Relevance of This Study When I Wrote the First Edition of This Book3.1 The Question Had Never Been Addressed by the ilc or by Any International Law Scientific Institution3.2 The Doctrinal Analysis Was Very Limited and Generally Unsatisfactory4 Scope of This Study4.1 Meaning of State Succession4.2 Classification of the Different Types of Succession of States4.3 Fundamental Principles of State Responsibility in International Law4.4 The Term “Internationally Wrongful Act” Should Be Used Instead of “Tort”4.5 This Study Does Not Deal with the Regime of State Responsibility for Breaches of Rules of State Succession4.6 This Study Does Not Deal with the Issues of “Odious Debts” and “War Damage” between the Predecessor State and the Successor State4.7 This Study Does Not Deal with Internationally Wrongful Acts Committed by the Predecessor State against Its Own Nationals/Corporations4.8 This Study Does Not Deal with Wrongs Committed by Non-state ActorsPart 2Succession of States to the Obligation to RepairGeneral Introduction of Part 21 Analysis of Scholarship1 Introduction2 The Doctrine of Non-succession2.1 General Overview of the Doctrine2.2 The Arguments Invoked in Support of the Doctrine3 Challenges and Criticisms of the Doctrine of Non-succession2 Analysis of State Practice and Case Law1 Introductory Remarks on the Doctrinal Analysis of State Practice2 Incorporation of State2.1 Older Examples of Annexation of States Support the Principle of Non-succession2.2 The Position Adopted in This Study and That of the Institute and the ilc2.3 Modern State Practice Supports the Principle of Succession3 Unification of States3.1 The Position Adopted in This Study and That of the Institute and the ilc3.2 State Practice Supports the Principle of Succession4 Dissolution of State4.1 The Position Adopted in This Study and That of the Institute and the ilc4.2 Ancient State Practice Generally Supports the Principle of Non-succession4.3 Modern State Practice Supports the Principle of Succession5 Cession and Transfer of Territory5.1 The Position Adopted in This Study and That of the Institute and the ilc5.2 The Continuing State Remains Responsible for Internationally Wrongful Acts Committed before the Date of Succession5.3 A Special Case: Acts Committed by Autonomous Entities6 Separation6.1 The Position Adopted in This Study and That of the Institute and the ilc6.2 The Continuing State Remains Responsible for Internationally Wrongful Acts Committed before the Date of Succession6.3 Examples Where the Principle of Succession Was Applied7 Newly Independent States7.1 The Position Adopted in This Study and That of the Institute and the ilc7.2 Examples Where the Continuing State Remained Responsible for Internationally Wrongful Acts Committed before the Date of Succession7.3 Examples where the Successor State Took Over the Obligations Arising from the Commission of Internationally Wrongful Acts8 Conclusion to Chapter 23 Analysis of Specific Issues1 Introduction2 The Predecessor State Recognises Its Liability for an Internationally Wrongful Act3 A Judicial Body Finds the Predecessor State Responsible for an Internationally Wrongful Act4 The Successor State Accepts to Take Over the Responsibility for an Internationally Wrongful Act5 The Successor State Continues an Internationally Wrongful Act Committed by the Predecessor State5.1 Acts Committed by the Successor State after the Date of Succession5.2 Acts Committed by the Predecessor State before the Date of Succession6 An Insurrectional Movement Commits an Internationally Wrongful Act during its Struggle to Establish a New State7 An Autonomous Government Commits an Internationally Wrongful Act7.1 The Position Adopted by the Institute and the ilc7.2 The Application of This Principle to Different Types of Succession8 The Use of the Principle of Unjust Enrichment to Resolve Issues of Succession to Responsibility8.1 The Principle of Unjust Enrichment8.2 The Principle Has Been Mentioned by Courts Dealing with Issues of State Succession8.3 Analysis of Scholarship and the Position Adopted in This Study8.4 Application of the Principle to Different Types of Succession of States9 The Use of the Principle of Equity to Resolve Issues of Succession to Responsibility10 The Relevance of the Territorial Factor to Resolve Issues of Succession to Responsibility10.1 The Existence of a “Direct Link” between the Consequences of a Wrongful Act and a Territory10.2 Violation of Territorial Regime Obligations11 The Relevance of Treaty Succession to Resolve Issues of Succession to Responsibility12 Internationally Wrongful Acts Having a Special Character12.1 Commission of “Odious” Acts12.2 Breach of jus cogens Norms4 General Conclusion to Part 2Part 3Succession of States to the Right to ReparationGeneral Introduction of Part 35 The Commission of an Internationally Wrongful Act Directly Affecting the Predecessor State1 Introduction2 Analysis of Scholarship2.1 The Doctrine of Non-succession2.2 Challenges and Criticisms of the Doctrine of Non-succession3 Analysis of State Practice and Case Law3.1 Unification and Incorporation of States3.2 Dissolution of State3.3 Separation3.4 Newly Independent States4 Conclusion to Chapter 56 The Commission of an Internationally Wrongful Act Affecting a National of the Predecessor State1 Introduction2 Analysis of Scholarship2.1 The Rule of Continuous Nationality in Diplomatic Protection2.2 The Application of the Rule of Continuous Nationality in the Context of State Succession2.3 The Parties Are Free to Exclude the Application of the Rule of Continuous Nationality2.4 The Rule of Continuous Nationality Is Not Appropriate in the Context of State Succession2.5 The Successor State Has a Right to Claim Reparation on Behalf of Its New Nationals for Internationally Wrongful Acts Committed before the Date of Succession3 Analysis of State Practice and Case Law3.1 Cases Where Successor States Have Submitted Claims on Behalf of Their New Nationals3.2 State Practice Where Reparation Was Provided to the Successor State for Its New Nationals3.3 Cases Where the Rule of Continuous Nationality Was Applied3.4 The Specific Problem of Reparation Claims against the Former State of Nationality4 Conclusion to Chapter 6Part 4General ConclusionGeneral Conclusion1 The Foundations of the Doctrine of Non-succession Are Not as Solid as They Appear to Be2 The Doctrine of Non-succession Remains supported by Many States3 Succession to the Obligation to Repair Essentially Depends on the Type of Succession Involved and on Whether the Predecessor State Continues to Exist4 State Succession to the Obligation to Repair Depends on the Different Factors and Circumstances Involved in Each Case5 The Issue of State Succession to the Obligation to Repair should Ultimately be Resolved Based on the Application of Three Fundamental Equitable Principles6 Solutions to Problems of State Succession to the Obligation to Repair Remain Largely Based on the Consent of the Successor State7 The Successor State Has the Right to Claim Reparation for Internationally Wrongful Acts Committed by a Third State before the Date of Succession8 The Tendency in Favour of Continuity of Rights and Obligations Is in Accordance with Modern State Practice in Other Fields of State SuccessionAnnexes 1 to 3Index