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    Report of the Director of Studies of the English-speaking 2 Section of the Centre Martti Koskenniemi* SECTION 1 INTRODUCTION! Political imagination sometimes does wonders for his- torical description. Rarely has territorial authority been reconceived and reallocated in as spectacular a fashion as in Europe since 1989. The col- lapse of the binary structure of the cold war undermined principles of identification on which political communities in Eastern and Central Europe had rested — with the result that old political structures dis- appeared, new ones were being proclaimed and communities whose pol tical identity had been held in abeyance during the long years of the cold ‘war were reasserting themselves. “Europe” was being reimagined in the East as well asin the West with a distinct message: “real socialism’ had failed, the future lies with liberal politics and the free market. Even if, ‘one really did not believe that history had ended, one could still not Professor at the University of Helsinki, 1. This report is based on collective work undertaken at the Hague ‘Academy's 1996 Centre for Studies and Research in International Law and Interatonal Relations. comping i, nave bed mac oars pes of rials. Firstly, and most importantly, { have unscrupulously pillaged the individual reports of the 24 participants in the Centre on various Aspects of the recent State succession events. | am exceedingly thankful for them, Many of these reports proved very useful. I have acknowledged my debt to individual authors by footnote references, Second, I have also used the national reports and the provisional summary report compiled within the Inter- rational Law Association’s Working Group on State succession. Also these reports have been an invaluable source of factual information on the practice regarding State succession in respect of treaties ("ILA Report”). Finally, I have received much help from the materials collected within the Council. of Europe's “Pilot Project” ("PP") on Recognition and State Succession. It is 10 bbe hoped that these materials will be published in due course and that the Council of Europe's Committee of Legal Advisers (CAHDI) has the breadth of vision to continue work on the collection and publication of State practice felevant co public atermational law, HAG 66 INTRODUCTION — CHAPTER 2 afford to ignore the force of the change and be cast as someone who has missed the boat — at least not with the spread of electoral machinery and the pattern of publicity that feeds it. Indeed, echoes of the transfor- ‘mation were heard as far away as Namibia, Eritrea and the two Yemens. Unlike many other observers, international lawyers possess a profes- sional vocabulary to deal with such apparently momentous transforma- tions of territorial and political authority. The doctrine of State succes- sion — pronounced dead (or at least comatose) in the 1980s after the vogue of decolonization had passed and the attempts at codification had ended in a relative failure — provided a conceptual matrix by Which cone could reproduce in legal terms and in regard to legal relationships the ideas of transformation, collapse and renewal that lie at the heart of new political consciousness’. This report attempts to present an overview of the role of State suc- cession in the reproduction of the political transformation in Europe and in the management of the diplomatic problems that have ensued. Legal commentary usually concentrates on the latter aspect, highlighting the instrumental weakness of State succession, its ad hoc character, the absence of determining rules from relevant treaty law and custom’. Much of the ensuing account corroborates this standard view. Recent European practice in regard to the continuation of old treaties, the fate of State property and debts seems very heterogeneous and difficult to state in terms of rules or principles. But while it may be true that State succession law does not offer much in terms of ready-made solutions to particular problems, its significance lies perhaps in two other directions. In the first place, State succession enables the articulation, in legal terms, of the character, direction and limits of political transformation. This it does for instance by providing principles of identification 2. For a sharp, bitter criticism of the 1978 Vienna Convention as “a further step in the debilitation of international jurisprudence”, ef, D. P. O*Connell, “Reflexions on the State Succession Coavention”, 39 ZadRV, p. 727 (1979), arguing that succession cases are so different from one another that any attempt to apply general principles — particularly the clean slate principle ~~ will fail to: respond to. the expectations of the relevant States, generally pp. 725-739. For a criticism of the "militantism” of the method chosen by the TEC and particulary its Special Rapporteur (Bedjaoui) and the Convention's bias for the rabula rasa, cf. Annie Gruber, Le droit international de la succes- sion d’Etats, 1986, pp. 43-60 and passim. For a more recent description of the Attempt at codification as “failure” by, e.g, Stefan Oeter, “German Unification land State Succession”, 51 ZadRV, pp. 385:359 (1991). 3. On those ideas ‘and their reproduction in international law, cf. David Kennedy, “Turning to Market Democracy. A Tale of Two Architectures”, 32 Hars ILs, pp. 373-396 (1991), 4. Cf, eg., Helene Ruiz Fabri, introductif", in Ruiz Fabri and Boniface, Succession d'Etais en Europe de l'Est et Uavenir de la sécurité en Europe, 1995, ppw20-27. REPORT OF THE DIRECTOR OF STUDIES 67 through which new communities have established themselves. Here is the statement by the Minister of Foreign Affairs of Latvia to the United Nations Secretary-General of 26 February 1993: “Latvia does not regard itself as a party by virtue of the doctrine of treaty succession to any bilateral or multilateral treaties entered into by the former USSR” Rejecting any continuation from the Soviet era to the present Latvia was able to make a powerful political point. In some ways the ability to shrug off previous treaty relations constituted the very core of its claim to independence. Moreover, the point of the Baltic claim to continue the statehood of the republics whose sovereignty was suspended by the Soviet occupation in August 1940 is a claim that has reality particularly in legal terms. Hence the following wording of Lithuania's communic: tion to the Director-General of the International Labour Office Geneva of 27 September 1991: “The fact that the Government of the Republic of Lithuania has applied for membership with the International Labour Organisa- tion shall in no way affect the legal consequences proceeding from the membership of the Republic of Lithuania therein as the Repub- of Lithuania could not avail itself thereof due to foreign occu- pation of the Republic of Lithuania in the period between 1940- 1990."¢ Or think about the way in which the international community imme~ diately made a distinction between three classes of legal relationships arising from the demise of the Soviet empire: the continuity from the USSR to the Russian Federation; the complete break between the former and the Baltic States; the varied status as “successor States” of the remain- ing 11 Republics’. Without the vocabulary of State succession and con- 5 Mulilateral Treaties Deposited with the Secretary-General, Status 28 at 31 December 1995 (ST/LEG/SER.E/14), p. 9, note 16. For notifications to the same effect by Estonia and Lithuania, ef ibid, notes 12 and 18, 6. Yolanda Gamarra, “Current Questions of State Succession Relating to Multilateral Treaties” (infra, p. 425 between footnotes 135 and 136). Also the United Nations Secretary-General lists the Baltic States as parties to the League of Nations treaties as from the date when these treaties became origik nally binding on them, Cf. Multilateral Treaties, op. cit, pp. 921 et seq. 7, On the very wide recent literature regaeding the continuation status enjoyed by the Russian Federation and the three Baltic States, cf, eg, Lech ‘Antonowiez, “The Disintegration of the USSR from the Point of View of International Law”, 19 Polish YIL, p. 716 (1991-1992); Michaél Bothe and Christian Schmidt, “Sur quelques questions de succession posées par la disso- Tution de 'URSS et celle de In Yougoslavie", 96 RODIP, pp. 821-824 (1993); ‘Wiadislaw Czaplinski, “La continuité, identité et ta succession d'Etats: THE HAC 68 INTRODUCTION — CHAPTER 2 tinuity, it would have been hard for the new entities to reimagine and propagate externally their relationship to the ancien régime and the prin- ciples on which their newly found identity stood. However open-ended the law of State succession might be, it still remains imperative in pro- viding a means for the articulation of those distinctions, in creating a sense of the importance of the change and the need for stability®. In the second place, it may be that the very flexibility of State suc- ‘cession makes it possible to manage sometimes dangerous political con- flicts in an innovative way. The absence of clear-cut rules on continu tion or disruption of treaty relations or detailed lists of fundamental rights of States, for instance, makes it possible to combine continuation at the level of abstract status with important changes at the level of spe- cific rights and duties. Despite the wide acceptance of the Baltic claims to continue the statehood of the pre-1940 republics, very few legal rela- tionships of the period actually survived. On the other hand, interna- tional pressure as well as the adoption of novel doctrine of retrospective application of human rights treaties has enabled the continuation of human rights commitments irrespective of the transformations of lezal subjecthood that have taken place atthe level of status. If the heterogeneity of State practice and the open-endedness of rules may seem like a testimonium pauperitatis on the part ofthe intemational ‘Bealuation de cas récents”, 26 RBDI, pp. 374-392 (1993); Martti Koskenniemi ‘and Marja Lehto, “La succession ’Btats dans I'ex-URSS, en ce qui conceme particuligrement ies relations avec la Finlande”, XXXVI AFDI, pp. 183-198 (1992); Rein Millerson, “The Continuity and Succession of States, by Refer- ‘ence to the Former USSR and Yugoslavia", 42 ICLQ, pp. 473-493 (1993); Malcolm Shaw, "State Succession Revisited", V FYBIL, esp. pp. 47-61 (1994). For official endorsements, cf. the background note by the British Foreign and ‘Commonwealth Office in "Coreck Maritime GmbH v. Sevrybokholodfiot’. 63 BYIL, pp. 653-654 (1992);64 BYIL, pp. 636-637 (1993). Likewise, the Euro- pean ‘Communities 1ot{ed] thatthe international rights and obligations of the former USSR, including those under the United Nations Charter, will continue to be exercised by Russia, They welcome the Russian Government's accep- tance of these commitments and responsibilities and in this capacity will continue their dealings with Russia, aking into account the modification ‘of het constitutional status.” Declaration 23 December 1991, Bull. EC 12, p. 121 (191), For a review of official statements, ef. Olivier Dorr, Die Inkorporation als Tat- bestand der Staatensukzession, 1995, pp. 168-169. 8, This aspect was well efiected in the Western creditors’ immediate quali- fication of the demise of the USSR as “secession” and not “dismemberment” and the holding of the Russian Federation as a continuation of the Soviet Union and thus fully liable for its public debt. Cf. Stefan Oeter, “State Succes sion and the Struggle over Equity: Some Observations on the Laws of State ‘Succession with Reference to State Property and Debts in Cases of Separation and Dissolution of States", GYIL, pp. 79-80 (1995). HaGuI REPORT OF THE DIRECTOR OF STUDIES Cs) lawyer, itis useful to recall that State succession doctrines are resorted to in concrete struggles about the right of representation of human com- ‘munities and the division of material and spiritual values between them. Succession, including the associated doctrines of identity and continuity, provides a publicly available means to wage those struggles, gives them shape and direction and delimits what alternatives seem available. In the following I shall outline the contours of recent State succession practice in Europe in regard to treaties (Section 2), property and debts (ection 3) and a number of miscellaneous intemational rights and obli- gations (Section 4). I shall conclude with reflections on the between succession, continuity and identity and the problems of codi cation (Section 5). SECTION 2 TREATY SUCCESSION: FROM SUBSTANCE TO PROCEDURE It took nineteen years for the 1978 Vienna Convention on Succession of States in Respect of Treaties? to enter into force with the deposit of the fifteenth instrument of ratification by the Former Yugoslav Republic of Macedonia (FYROM) on 7 October 1996". As a ‘Treaty, then, it remains formally inapplicable to the recent cases of State succession. However, despite the criticisms by O'Connell and others, many have argued that the 1978 Convention is expressive of interna- jonal custom, or that it has “drawn inspiration” from “principles of international law" #2, Some of the recent practice seems to underwrite this view. For example, in the process of dissolution of the Czech and Slovak Federal Republic that led to the emergence of the Czech Repub- lic and the Slovak Republic on 1 January 1993, the intemal acts of the Czech Republic were based on the assumption that the fate of treaties “is governed by the rules of international law, which, as far as the dissolution is concerned, are.identical with the rules embodied in ‘9. 17 ILM, p. 1488 (1978). 10, Consequently the Treaty entered into force on 6 November 1996. €.N.350.1996,TREATIES-1 (Depositary Notification), 14 November 1996, ‘The other 14 ratifications are by Bosnia-Herzegovina, Croatia, Dominica, Egypt, Estonia, Ethiopia, Iraq, Morocco, Seychelles, Slovakia, Slovenia, Tuni- sia, Ukraine, Yugoslavia 11, This scems to have been the initial position of the United States State Department, for instance. Cf. Gerge Dunn and John B. Rhinelander, “The ‘Arms Contfol Obligations of the Former Soviet Union", 33 Virg. JIL, p. 328 (1993), 12. Conference on. Yugoslavia, Arbitration Commission, Opinion No, 1 (29 November 1991), 92 /ER, p. 165 (1993). HaGuI 70 INTRODUCTION — CHAPTER 2 the Vienna Convention on Succession of States in respect of Tres 3s of 1978 (to which Czechoslovakia is a signatory State)" ‘The same attitude was taken by the Slovak Republic'*, However, there is no agreement about the authoritative status of the 1978 Convention and many feel that it is not continuity but the clean slate that provides the presumptive rule of customary law'®, As far as German unification was concerned, for instance, the Convention's pro- visions on uniting of States seem to have been completely discarded ®. Besides, the extent to which verbal support to a convention and actual practice following or going against its provisions may be used to clarify status is unclear. The interpretation of the attitudes of States in this respect remains a complex problem”, The terminology used is often uncertain and there is little warrant to draw a contrario conclusions: the degree to which a new State's accession to a treaty can be taken as an express repudiation of succession is far from certain. ‘Once it has been decided to apply the 1978 Vienna Convention, the next step is to determine its content. As is well known, the Conven- tion has partly differing rules in regard to four different cases of succes- sion: (1) Succession in respect of part of territory (Article 15: treaties of the precedessor cease to be in force while treaties of the successor extend to the newly acquired territory unless this would be contrary to the object and purpose of the treaty or would radically change its condi- tions of operation); (2) Newly independent States"* (Articles 16-30: no automatic conti nuity of the predecessor's treaties (“clean slate"). The State may, how- ever, by notification establish itself as successor to open multilateral 13. Vaclav Mikulka, State Succession in Respect of Treaties. Czech Repub- lic, Prague, February 1996, Report to the ILA, at p. 2. 14. Nikoleta Glindova, Siate Succession ‘in Respect of Treaties. Slovak Republic, Bratislava, 15 April 1996, Report to the ILA, p. 3. Slovakia (unlike the Czech Republic) has also ratified the 1978 Convention. 15. Cf, e-g., Rein Millerson, “Law and Politics in Succession of States: International Law and Succession of States”, in Stein (e4,), Dissolution, con- tinuation et succession en Europe de l'Est, 1994, p. 17; Gerhard Hafner and Elisabeth Kornfeind, “The Recent Austrian Practice of State Succession : Does the Clean Slate Rule Still Exist”, 1 ARJEL, p. 27 (1996) 16. CE. pp. 76-78, infra 17. As pointed out also in International Law Association, Helsinki Confer- ence (1996), Rapport préliminaire sur la succession d'Etats en matiore de ‘raités, point B. 18. These are defined as States which immediately before the date of seces- sion were dependent territories “for the international relations of which the predecessor State was responsible”. Article 2 (1) (1 of the 1978 Vienna Con Yention THE HAC Aca REPORT OF THE DIRECTOR OF STUDIES n treaties to which the predecessor was a party provided that this is in accord with the treaty's object and purpose); (3) Uniting of States (Articles 31-33: treaties of the predecessors remain in force in the original territories unless there is agreement to the contrary between the parties or — in regard to open multilateral treaties — the successor notifies the treaty’s extension to the whole of its terri- tory); () Separation of States (Articles 34-37: treaties of the predecessor continue in force in respect of all successors unless a treaty is territori- ally connected, the States concerned agree otherwise, or this would be contrary to the object and purpose of the treaty). In addition, according to Articles 11 and 12, boundary treaties and other territorial régimes are normally not affected by State succession rule generally thought to be of a customary law character. More- over, Article 4 of the Convention contains the likewise well-established (though by no means unexceptional) principle that membership in inter- national organizations is covered by the normal rules of acquisition of membership. Much of the criticism against the 1978 Vienna Convention has related to its apparently obsessive focus on decolonization. The raison d’étre of a special rule of the clean slate in respect of newly independent States ‘was, according to critics, related to a unique historical situation the pass- ing of which has since rendered that rule obsolete. Whether or not the criticism has been justified, post-1989 practice has also nuanced the above divisions somewhat. German unification made it necessary to dis- tinguish between a uniting of States in which the successor is a new State and the case of absorption (i.e. the case of Germany) in which one State becomes a part of another that continues its existence. In the second place, the distinction between situations where the predecessor continues to exist (the case of the former USSR) and enjoys a position of privilege against (mere) successors and dissolution where this is not the case (arguably the dissolution of the SFRY) where all are formally equal, has been highlighted by the recent events. The variability of State succession situations has been the focus for the critics of the Convention and for those who have argued that any 19. Frontier Dispute (Burkina Faso/Republic of Mali) case, ICI Reports 1986, p. $66 (para. 24): Arbitration Commission, Inemational Conference on Yugoslavia, Opinion No. 3, 92 ILR, pp. 171-172. (1993). However, many observers have noted that it might be diffcul to determine when a treaty might Setup a territorial regime — is for instance an agreement on a military bane oF the construction of a dam such a ueaty’? CI, eg. Karl Zemanck, "State Sue= cession after Decolonization", 116 Recueil des cours (1963), p. 2 20. For an exhaustive discussion of the differentiation between fusion and absorption (incoyponation), cf Dorr, op. elt, pp. 132-177, THE HAGUE A n INTRODUCTION — CHAPTER 2 attempt to regulate the rise and fall of States by law is bound to remain ineffective. In order to grapple with such criticism and to examine the relationship between the Convention and State practice, I shall now out- line the practice of treaty succession in the four recent European cases. Paragraph | Multilateral Treaties The dismantling of the Czech and Slovak Federal Republic (CSFR) took place by agreement between the Czech Republic and the Slovak Republic as from 31 December 1992. Both successors adopted constitutional provisions recognizing the validity of the rights and obligations deriving from the close to 3,000 multilateral and bilat- eral treaties that had been in force in the predecessor State. In response to an enquiry from the Secretary-General, both confirmed that multi- lateral treaties of the predecessor continued to apply not out of discre- tion but because of a customary rule to that effect®®, Succession covered also treaties to which the predecessor had been a signatory as well as all reservations it had made. In certain technical treaties, a notification was made concerning new modalities of application. These did not, however, deviate from the main view of succession by virtue of law. This very widespread assumption is only slightly weakened by the fact that the lists appended by the two States to their notes to depositaries of multi- B,C especially O°Connell, 39 ZaBRV, pp. 725-739 (1979). 22. Cf. Article 9 @2) of the Constitutional Law No. 4/1993 (15 December 1992) of tne Czech Republic and Anicle 153 of the Constitution of the Slovak Republic. Cl, Mikulka ILA. Report op. cit, Part ll, and Mahulena Hoskovdy "Dfe Selbstaufldsung det CSPR, Ausgewthite rechliche Aspekte", 53 Za0RV, p. 716 (1993). Cf. also Glindové ILA Repor, op. cit, Par ll, and Hafner and Kornfeind, 1 ARIEL, p. 15 (1996) and generally Ji Malenovsky. "Problemes juridiques lis A la partition de In Tehéeoslovaquie", XXXIX APDI. pp. 328 330 (1993) 23. According to the wording of a Czech note, automatic succession in tultiateral treaties took place “in conformity with. the valid. principles. of international law and to the extent defined by it” CI. Multlacral Treaties, op. cit, pp. 8-9, nole Il. For the identical oF nears Cleech ‘notes to the depositaries of various. mul Mikulka TLA Report, op. ci, Part Il. He summarizes: “The authorities of the Czech Republic never thought that there was any ‘freedom’ for the successor state to consider the substantive issue, i.e! whether these treaties should or not be binding on the Czech Repub- lic, ‘On the contrary, {these} notes spelled out unequivocally that the Czech Republic considered itself [UJo be bound by these teats as well as by all reservations (9 them by virtue of succession as of 1 January 1993." fbid, p. 4 (emphasis omitted). ‘The notification by the Slovak Republic to the United Nations Secretary- General is published in the same place as the Czcch note, cf. Multilateral Treaties, opt che sup, Ch aloo Olindové ILA Report ops eles Put I HaGuUI REPORT OF THE DIRECTOR OF STUDIES B lateral conventions did not appear to contain all conventions to which the predecessor State had been a party. ‘Two exceptions to automatic succession (of which more in Section 4 below) concerned the statutory instruments of international organiza- tions and closed multilateral treaties. As regards membership in most international organizations, no succession took place — despite a tri- partite agreement between the predecessor and the two successors that sought to divide the former's memberships between the latter. This arrangement was not generally accepted by the relevant organizations. The two States deposited their instruments of accession and were admit- ted to the United Nations (as of 19 January 1993)? as well as to most international organizations in accordance with their normal membership procedures?*, ‘After the dissolution of the Socialist Federal Republic of Yugoslavia (SFRY), Croatia, Slovenia, Bosnia-Herzegovina and the Republic of Macedonia each made general declarations confirming their status as successor States to the SFRY and affirming that they would continue to uphold the treaties of the predecessor State, An exceptionally unambig- uuous letter of 8 June 1992 to the Netherlands Foreign Ministry by the Foreign Ministry of Slovenia stated that: “Lors de ta déclaration d’indépendance le 25 juin 1991, la République de la Slovénie a décidé que les traités multilatéraux conclus par la République socialiste fédérative de Yougoslavie et concernant la République de Slovénie demeuraient en vigueur sur son territoire. Cette décision a été prise compte tenu du droit inter- national coutumier... Par conséquent, la République de Slovénie reconnait en principe la continuité des droits et des obligations découlant des traités internationaux conclus par {Ia SFRY] avant Te 25 juin 1991. ‘The statement reproduces the relevant part of Article 3 of the Slovenian Constitution according to which “{iJnternational agreements concluded by Yugoslavia and relating to the Republic of Slovenia will be effective in the territory of the Republic of Slovenia", 2A, Gamarra, infra, p. 409. 25, UNGA res. 47/221 (19 January 1993). 26, For an overview, ef. Mikulka ILA Report, op. cit, Part I1L2; Malnov- sky, XXXIX ADI, pp. 333-334 (1993) 27, Isabelle Poupar, "Succession aux taités et droits de "homme: vers a reconnaissance d'une protection ininterrompue des individus", infra, p. 478. For an almost equally dram gous declaration by Boma Heresgovina, c-the notification ‘distributed to Unesco. member States, LA/Gepositary/1993/19, ‘bid, footnote 38. posta! 28. Hafner ang.Komfeind, 1 ARIEL, p. 14 (1996) 4 INTRODUCTION — CHAPTER 2 ‘The same position of principle has also been taken by the Republic of Croatia® and was contained in the 1993 Constitutional Agreement of the Union of Republics of Bosnia and Herzegovina, Bosnia has also ‘made notifications to that effect in respect of a number of international conventions. In a generally formulated declaration of 1 September 1993, ‘made in connection with its notification relating to the 1954 Conven- tion on the Protection of Cultural Property in the Event of Armed Conflict, Bosnia confirmed being bound by all conventions of the predecessor State, “in conformity with the provisions of the 1978 nna Convention . . .”3!. It follows likewise from the position of the Federal Republic of Yugoslavia (Serbia-Montenegro), regarding itself a continuator of the SFRY, that it considers treaties by the SFRY binding on itself. Nonetheless, it is doubtful whether the successor republics actually consider continuity as an unexceptionable rule. For instance, the Cro- atian Act of 26 July 1991 on the Preparation and Conclusion of Treaties by the Republic of Croatia affirms that Croatia does not consider itself 29, Declaration on the Establishment of the Sovereign and Independent Republic of Croatia, Zagreb, 25 June 1991, providing that “the Republic of Croatia in its capacity of the legal successor of the for- mer [SFRY] guarantees to all states and international organizations that it will fully and conscientiously exercise all rights and perform all obli- {ations relating to the Republic of Croatia” (cited in Juan Miguel Ortega ‘Terol, “The Bursting of Yugoslavia; An Approach to Practice Regarding State Succession” (infra, p. 906). Cf. also Hafner and Komfeind, 1 ARIEL, p. 14 (1996), referring to the state~ ‘ment by Croatia's representative at the Council of Europe's Committee of Legal ‘Advisers, CAHDI (93) 12.8,1993, p. 7. 30. C¥. Report of the Co-Chairmen of the Steering Committee on the Activities of the International Conference on Former Yugoslavia, 8/2620 (6 August 1993), Annex, p. 16, A Diplomatic leter from Bosnia-Herzegovina, to the Netherlands of 14 March 1993 states that “The Republic of Bosnia-Herzegovina, which became member of the ‘organization of the UN on may [sic] 1992, as the succession state (sic] is considered to be bound by all the intemational treaties signed or acceded to by the former Yugoslavia, as the Predecessor state, and which ‘were in force at the date of succession of states in relation to the teritory (o which the succession of states applies.” (PP NLIST.) 31. Ontega Terol, Textos y documentos sobre los desmembramientos de la Unidn sovidtica y de Yugoslavia, 1996, p. 100. Note, however, that Bosnia’ toufieation of succession tothe ‘Genocive Convention of 29 December 1992 tras formolated in an apparently consitwive (and not declaratory) manner: Cie Govemment of the Republic of Bosnia and Herzegovina» sishes to Succeed to [the Genocide Convention)", cf C1, Application of the Convers tion on the Prevention and Punishment of the Crime of Genocide, Judgment of IH July 1996, 16) Reports 1996, p. 610, para. 18. Bade ON dae Sitaan aha aradON pp. 968-940. alco Ortega Torok, infra, HaGuI REPORT OF THE DIRECTOR OF STUDIES 15 bound by treaties of the SFRY if “these treaties contradict the Constitu- tion or the legal order of Croatia”. Slovenia, (00, despite the above-quoted declaration, reserved for itself the option to exclude at least some agreements, declaring that it did not consider itself bound by the Hague Convention on International Child Abduction of 25 October 1980 which had been ratified by the SFRY#, Although the successor States to the SFRY have become parties by way of succession to multilateral treaties in a large number of cases, sometimes they have done so through accession. In the list of Multi- lateral Treaties Deposited with the United Nations Secretary-General, Croatia appears as successor in relation to 67 treaties, Bosnia-Herzego- vina in relation to 87 and FYROM in relation to 34 of the altogether 118 treaties to which the SFRY had been a party”, For the rest, the countries have either acceded or their position remains uncertain. ‘The USSR had been party to more than 16,000 treaties of which 600 had been multilateral. We have already seen that the claims of conti- nuity made by the Russian Federation in regard to the former USSR and those made by the Baltic Republics in regard to their pre-1940 statehood have been generally accepted. Therefore, treaty succession proper con- cerns only the remaining 11 former Soviet Republics. In the Alma Ata Declaration of 21 December 1991, they declared that they would “guarantee in accordance with their respective constitutional pro- cedures the discharge of the international obligations deriving from treaties and agreements concluded by the former [USSR]"”. However, this has not been fully followed in practice. Much has been obscured by the divergencies in the notifications of succession filed by these States. Often the new republics deposited notifications of succes- sion indicating that they regarded themselves automatically bound by 33. Renata Szafarz, The Practice of Poland as the “Other State Party" and ‘as a Depositary — as Regards Succession of Recently Established States in Respect of Treaties (ILA Report 1996), p. 13. ‘34. Onega Terol, infra, p. 905. 35. CE. Ortega Terol, infra, p. 906. According to information received from the Spanish Ministry of Foreign Affairs, Croatia has been listed as a successor in 62 treaties and acceded in 17, Bosnia as a successor in 61 treaties, acceded in one, Slovenia as a successor in 40 treaties and accession in 33, Macedonia Succession in 12 and accession in four. Gamarra, infra, pp. 423-824 at fo0t- notes 129 and 130. '36, Tarja Langste6m, “The Dissolution of the Soviet Union in the Light of the 1978 Vienna Convention on Succession of States in Respect of Treaties” infra, p. 742 at footnote 95). ‘37. Alma Ata declaration, 21 /LM, p. 149 (1992). Reprinted also in August Reinisch and Gerhard Hafner, Staatensukzession und Schuldentibernakme Beinn "2erfatt™ dee onievantony 1999 yp 198199. THE HAGUE ACADEMY 16 INTRODUCTION — CHAPTER 2 obligations of the former USSR, Sometimes they have limited succes- sion to treaties that do not contradict their domestic laws. In most cases, however, they have simply acceeded to conventions to which the USSR had been a party — with the possible implication that there was no automatic continuity — but also without attempting to por- tray themselves as “newly independent States” to whom the clean slate exception under the 1978 Convention would have been available®. In a letter written for the purposes of clarifying the practice of Armenia, for example, Mr. Yuri Chanchurjan, acting head of the Legal Department of Armenia's Ministry of Foreign Affairs, explained the “the Republic of Armenia does not succeed to Soviet Union in regard to international treaties and has no practice of succession. Our country follows a constitutional procedure of accession to multilateral treaties, the essence of which is that for the Republic of Armenia they come into force through decisions of the National Assembly or presidential decrees."** Finally, as regards State succession in Germany, the matter remains 38 CE Gamarra, infra, pp. 414-415; Koskenniemi and Lehto, XXXVIIL AFDI, pp. 199-202 (1992). 39, "Ths is the position ofthe Ukraine under a domestic law of 12 Septem- ber 1991 as well a that of Moldova. Cf. Szafare ILA Report op. cit, at points 14 and 6. In the diplomatic correspondence between Poland and the 11 former Soviet republics, only ‘Tajikistan appears to have expressly recognized its Stats as general successor to Soviet treaties, ibid, porn 1.12. ‘40. Thus, “Armenia acceded to fifteen and succeeded in four of the multilateral conventions of which Spain is a contracting party. Azerbaijan acceded in six and succeeded in one, Georpia acceded inten and algo succeeded in ten, Kazakhstan acceded in tee and succeeded in. six, Kyrgyestan acceded in three and succeeded in ten, Moldova acceded in fourteen, ‘Tajikistan acceded in three and succeeded in sixteen, Turkmenistan acceded in four and succeeded in five, Uzbekistan acceded in twelve and Succeeded in two." (Gamatra, infra, p. 413 at foomote 108) ‘The 1984 United Nations, Convention against Torture, for instance, was acceded to by Armenia, ‘Georgia, Moldova, Tajikistan and Uzbekistan, NO fepublic of the former Soviet Union filed 4 notification of succession. The Covenant on Civil and Political Rights of 1966 was acceded to by Azerbaijan, ‘Armenia, Georgia, Kyrgyzstan and Moldova. The Human Rights Committee, however! has taken the view that these accessions should be applied retro: Actively from the independence of those States, For the eontadictng practice of the CIS States in regard to mullilateral treatics, cf. also Stefan Octer, The Practice of Germany Regarding State Succession in Treaties (undated, ILA Report, at notes 135-148 4. Letter of 10 October 1996 to Professor Dr. Yolanda Gamarra, Univer- sity of Zaragoza, copy annexed to Gamarr, infra, . 416. A similar statement fiat been made in Connection with Polish contacts with the former USSR republics by at least Azerbaijan and Uzbekistan, Szafarz ILA Report, op. ct, atpointe 8 and REPORT OF THE DIRECTOR OF STUDIES 1 fairly straightforward. All the multilateral treaties in force in respect of the Federal Republic of Germany — including the EC Treaty — have been extended to the whole of the territory of United Germany as of the date of unification 3 October 1990. The fate of the treaties to which only the German Democratic Republic (GDR) was a party is governed by the “embarrassed formulation” of Article 12 of the Treaty of Uni- fication according to which: “(1) . .. international treaties and agreements of the German Democratic Republic shall be discussed with the contracting par- ties concerned with a view to regulating or confirming their con- tinued application, adjustment or expiry, taking into account pro- tection of confidence, the interests of the states concerned, the treaty obligations of the Federal Republic of Germany as well as, the principles of a free, democratic basic order governed by the rule of law, and respecting the competence of the European Com- munities. (2) The united Germany shall determine its position with regard to the adoption of international treaties of the German Democratic Republic following consultations with the respective contracting parties and with the European Communities where the latter's competence is affected.” ‘What deference to consultations meant in practice was that not one of the multilateral treaties to which only the GDR had been a party was continued. German diplomacy insisted on the complete expiry of GDR’s international commitments. It was, moreover, clear that “Consultation did not mean ‘negotiation’, that it was up to Germany to declare uni- laterally what the fate of GDR’s treaties would be. The only apparent exception to this was the negotiation of the continued application of the Intersputnik Treaty. However, this took place by means of German 42. CE. generally Article 11 of the Unification Treaty and comments in Ralf Witkowski, Die Siaatensukzession in Volkerrechiliche Vertrige unter beson- derer Bericksichtigung des herstellung der staatlichen Einheit Deutschlands, 1992, pp. 197-271, esp. pp. 243 er seg.; Hubert Beemelmans, “Die Staaten: aachfolge in volkerrechiliche Veririge —- Bemerkungen zur neueren Staaten- praxis", 40 Ostewropa-Recht, pp. 343-357 (1994); Oeter ILA Report, op. cit, AL notes 63-74. The only exceptions being certain treaties having to do with the stationing of NATO forces inside Germany. 43. Nguyen Quoc Dinh, Alain Pellet and Patrick Daillier, Dro ional public, Sth ed., 1994. p. 523. ‘44, “Treaiy between the Federal Republic of Germany and the German Democratic Republic on the Establishment of German Unity", 30 /ZM, p. 463, at p. 472 (1991). For an extensive overview of the fate of GDR treaties, cf, Witkowski, op. cit, pp. 284-369. 145. Beemelmans, 60 Osfeuropa-Recht, pp. 348-350 (1994); Oeter ILA. Report, op. ely senate 22. 7) INTRODUCTION — CHAPTER 2 accession (with effect from unification, that is 3 October 1990) and not through the automatic operation of succession rules*®. ‘As stated in the provisional ILA Report on State Succession in Respect of Treaties, practice in regard to multilateral treaties has been at least superficially in accordance with the main rule of treaty conti- nuity under the Vienna Convention. Or, as stated by Stefan Oeter, there has been a “strong tendency to follow the road of some sort of quasi- automatic succession to basic categories of multilateral ‘law-making’ treaties" ®., ‘A number of caveats need to made, however. First, there have also been exceptions to continuity, the most impor- tant of these being the complete disruption of the multilateral obliga- tions of the German Democratic Republic, Second, that practice gener- ally conforms to the main rule of the Vienna Convention is not necessarily a result of the Convention, Whether a State is following a rule or adopting a convenient form of behaviour that only happens to coincide with it is difficult to determine. In any case, such interpretation needs necessarily to look behind the external fagade of what is being

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