2006 Bench Memo

Procedures of State succession

U.N. Legal Affairs Committee developed three principles to serve as guiding principles for
future cases:
 1.That, as a general rule, it is in conformity with legal principles to presume that a State
which is a Member of the Organization of the United Nations does not cease to be a
Member simply because its Constitution or its frontier have been subjected to changes,
and that the extinction of the State as a legal personality recognized in the international
order must be shown before its rights and obligations can be considered thereby to have
ceased to exist.
 2. That when a new State is created, whatever may be the territory and the populations
which it comprises and whether or not they formed part of a State Member of the United
Nations, it cannot under the system of the Charter claim the status of a Member of the
United Nations unless it has been formally admitted as such in conformity with the
provisions of the Charter.
 3.Beyond that, each case must be judged according to its merits.
讲的是 UN membership 的继承。但是 Bench memo 用第三点来说 A 国继承了 N 国的地
位。

State practice
Russia
 继承了苏联在 UN 和 UNSC 的席位
 理由：Russia 占苏联领土和人口的大部分；it is clear that the international community
also wished to avoid a fight over one of the five permanent seats on the Security Council.
Former Yugoslavia
 Federal Republic of Yugoslavia 没有继承前南斯拉夫的 UN 和 UNSC 席位
 FRY 没有占前南领土或人口的大部分；前南和 FRY 之间没有确定 FRY 继承者地位
的 devolution agreement；UN 对 FRY 的继承持反对态度
 ICJ:
1. 2003 "Application for Revision case, at para.18: 2003 Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. &
Herz. v. Yugo.), 2003 I.C.J. 7 (Judgment of Feb. 3 on Application for Revision of the
Judgment of 11 July 1996 of Preliminary Objections)
 FRY 说它没有继承前南的人格，不是 ICJ Statute 和 Genocide Convention 的
party. ICJ 说 FRY's admission as a new member "cannot have changed retroactively
the sui generis position which the FRY found itself in vis-ai-vis the United Nations
over the period 1992 to 2000, or its position in relation to the Statute of the Court
and the Genocide Convention."【mark 还没看】
2. 2004 Legality of Use of Force Case, at para. 44: Legality of Use of Force (Serb. &
Mont. v. BeIg.) (Judgment of Dec. 15, 2004 on Preliminary Objections)
 ICJ 说塞黑不是 UN 和 ICJ Statute 成员，因此自己没有管辖权。
 关于 FRY 的地位：“While it is clear ... that these resolutions reflected a position
endorsed by the vast majority of the Members of the United Nations, they cannot be
 construed as conveying an authoritative determination of the legal status of the [FRY]
within, or vis-a-vis, the United Nations. The uncertainty surrounding the question is
evidenced, inter alia, by the practice of the General Assembly in budgetary matters
during the years following the break-up of the Socialist Federal Republic of
Yugoslavia.”
 ICJ 考虑了：FRY 交了前南欠的 membership；Secretary-General 的意见；the fact
that the Secretariat accepted without comment the FRY's deposit of its recognition
of the compulsory jurisdiction of the ICJ
 但是最后 ICJ 还是认为 FRY 不是 UN member
3. ICTY: Prosecutor v. Milutinovic et al. (Decision on Motion Challenging
Jurisdiction) (2003), Case No. IT-99-3 7-PT (International Criminal Tribunal for the
Former Yugoslavia, Trial Chamber Ill) at para. 37.
 ICTY: the General Assembly Resolution "did not deprive the FRY of all the attributes
of United Nations membership: the only practical consequence was its inability to
participate in the work of the General Assembly, its subsidiary organs, conferences
or meetings convened by it. Apart from that, it continued to function as a member of
the United Nations in many areas of the work of the United Nations."

VCSSRT
 首先必须证明是一个 successor, 才能用 VCSSRT：Art.6 “The present Convention applies
only to the effects of a succession of States occurring in conformity with international law and,
in particular, the principles of international law embodied in the UN Charter”
 notification of succession 够不够说明继承条约的问题 Art.9
 Art.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.

Succession v. continuation
 A successor state is a new state that succeeds to the rights of a predecessor State after the
predecessor has ceased to exist.
 Continuation is when a State remains after a breakaway of smaller states.
 区别：Successor 需要手续才能继承双边条约，国际组织的成员身份，Continuer 不用。