Codification and Decolonization 1950–1974
Codification and Decolonization 1950–1974
Abstract and Keywords
This chapter discusses the process of codification. Topics covered include: the move to codification, the part played by the International Law Commission and the International Law Association, the Waldock Reports, the relationship with the law of treaties, the question of new States, semi-sovereignty, dispositive treaties, and finally the adjustments made at the Vienna Conference. It is shown that those involved in the codification were unable to deal with the problem of succession in a way that did not draw within it questions of identity and status, or conclusions about the relationship between international and municipal law.
There are few topics of international law that have not, at some stage or other, been mooted as possible candidates for ‘codification’ and the topic of State succession has clearly been no exception. However, just as various different agencies have involved themselves in the task of articulating rules and principles governing succession, there has remained a strong back-swell of opinion largely opposed to such an initiative. Surprisingly enough, one of those who declared their scepticism on this score was O'Connell, whose involvement in the work of the International Law Association on State succession throughout the 1960s might have indicated a disposition otherwise. In an article penned shortly before his untimely death in 1979, O'Connell was to reflect back upon the achievements of the previous decade, and in particular the drafting of the 1978 Vienna Convention on the Succession of States in Respect of Treaties, with the confession that he was ‘unrepentantly doubtful about the merits of codification, which can only arrest the historical development of the law and encapsulate it within a particular time frame and a particular ideological milieu’.1 State succession, in his view, was a topic ‘altogether unsuited to the process of codification, let alone of progressive development’2 and he saw the demand for codification (recalling Savigny's celebrated dictum) as arising from ‘indolence and dereliction of duty on the part of the legal profession’.3
Whilst O'Connell's criticism of the Vienna Convention might easily be dismissed as the complaints of one whose views on the subject were almost comprehensively disregarded, he was clearly not alone. In the following year, for example, Crawford defended O'Connell's position in the following terms:
Suitable as it was for extended scholarly treatment of the sort O'Connell had given it, the topic of State succession was not self-evidently ‘ripe for codification’ at the end of the 1960s, either intrinsically or as a matter of relative priority of importance. In itself it is a rubric containing diverse, diffuse, and difficult issues, many of them solvable only by particular reference to the facts of individual cases. Codification was, at this time, (p.94) likely to be influenced overwhelmingly by the recent experience of decolonization, an experience not necessarily typical of the cases of succession most likely to occur in future. Various administrative techniques had evolved for coping with discontinuities resulting from succession, and it was arguable that their evolution should be allowed to continue undisturbed by attempts at formulating general rules.4
One senses from Crawford's comments, here, a belief not merely that rules of succession remained at that particular time exceptionally ephemeral, but also that it was an issue that might best be left to ad hoc compromise or ‘administrative technique’ whose ‘evolution’ would plot a natural course. Writing at the end of the ‘era of decolonization’ this might have seemed a suitable response to the issue – one could be sure at least that cases of succession as might arise in future, would not assume the same social, political, economic, or cultural dimensions as decolonization, however far parallels might emerge. And to the extent that the surrounding sociology of territorial or political change would inevitably differ from one era to the next (in terms of what might be visibly at stake), codification of the law by reference to one particular set of historical precedents would always be a rather poor surrogate for contemporaneous policy oriented problem-solving.
But at the same time, one is left wondering what this ‘evolution’ of the law of State succession might entail, and how any such ‘progress’ might occur if the relevant policy-makers were continually faced with re-framing their engagement with the law.5 Was it really the case that little was to be gained from the process of codification? Was decolonization really so specific a phenomenon that it has nothing to offer in terms of the way in which State succession is understood today?
1. The Move to Codification
A partial answer to O'Connell's complaint may be found in the terms under which the International Law Commission (ILC) originally came to involve itself with the question of State succession. In 1948 Hersch Lauterpacht had been engaged by the UN Secretariat to produce a ‘Survey of International Law in Relation to the Work of Codification of the International Law Commission’, which was published in the following year.6 In that document, Lauterpacht identified twenty-five topics for possible study on the part of the ILC that included, alongside matters such as recognition, jurisdictional immunities, and the law of treaties, one entitled ‘Succession (p.95) of States and Governments’.7 Lauterpacht did not offer an unqualified recommendation in this respect. He observed that the issue had historically remained outside the work of codification because of its association with war and its aftermath. He was also of the view that certain aspects of the subject – particularly the rules on succession to treaties – remained largely ‘obscure’.8 Nevertheless, Lauterpacht did identify two particular reasons why the topic might be worthy of codification. The first was that the ILC had the opportunity of ‘giving a precise formulation’ to the ‘generally recognized’ principle of ‘respect for acquired private rights’ – clarifying, in particular, its application to the various categories of private rights such as those grounded in the public debt or concessionary contracts.9 On this score, O'Connell might have applauded the endeavour – particularly insofar as his 1956 book on the subject had effectively been structured around the notion of acquired rights. But at the same time, hindsight suggests that it may not have been the best reason for the move to codification given that the Commission later decided to eliminate the question of acquired rights from its work on State succession.10 The doctrine of acquired rights turned out to be far more controversial than Lauterpacht ever imagined.
The second reason put forward by Lauterpacht, however, may have had a more enduring impact. There he noted that: ‘[c]onsiderations of justice and of economic stability in the modern world probably require that in any system of general codification of international law the question of State succession should not be left out of account. The law of State succession prevents the events accompanying changes of sovereignty from becoming mere manifestations of power’.11
(p.96) Even, thus, if the subject of State succession might not have been ‘ripe for codification’ in the sense outlined by Crawford, it was evident that the kind of ad hoc approach to succession that had characterised the territorial settlements in the aftermath of the two World Wars was not one propitious to the development of principles of law, nor to the constraint of ‘power’. The building of international law as a system seemed to require not only that there should be rules governing the ‘creation of States’, as Crawford would, no doubt, attest,12 but also certain rules governing the consequences of territorial and political change.
Whatever cautions Lauterpacht may have had about the topic of ‘succession of States and governments’, the ILC adopted it as one of a list of fourteen topics selected for codification on a provisional basis at its first session in 1949.13 This, of course, did not result in the subject being addressed with any urgency by the ILC, and it was left on the sidelines until 1961 when the ILC was finally encouraged by the General Assembly to include it on its ‘priority list’ of subjects to be addressed.14 The impulse for doing so was fairly self-evident. In the years between 1945 and 1961 the process of decolonization had gathered momentum. Jordan, India, Pakistan, Burma, Ceylon, Israel, and the Philippines had gained their independence in the late 1940s, and were joined by Cambodia, Ghana, Guinea, Indonesia, Laos, Libya, Malaya, Morocco, Sudan, Tunisia, and Vietnam in the 1950s, with Togo, Senegal, Somalia, Nigeria, Niger, Mauritania, Mali, Malagasy Republic, Ivory Coast, Gabon, Dahomey, Cyprus, the two Congos (Brazzaville and Leopoldville), Chad, Central African Republic, and Cameroon all gaining their independence in 1960. The process was to continue apace over the next few years with the independence of Tanganyika in 1961, Algeria, Rwanda, Burundi, Jamaica, Trinidad and Tobago, Uganda, and Western Samoa in 1962, Kenya and Zanzibar in 1963, Malta and Zambia in 1964, Gambia, the Maldives, and Singapore in 1965, Barbados, Botswana, Guyana, and Lesotho in 1966, Equatorial Guinea, Mauritius, Swaziland, and Nauru in 1968, Fiji in 1970, Bahrain, Bangladesh, and Qatar in 1971, the Bahamas and Guinea-Bissau in 1973, and Grenada in 1974.15 In all such cases, legal advisors around the world were faced with obvious questions as to the extent to which third States could be assured of the continuation of legal rights and obligations that might have existed prior to independence, and resulting pressure from Western governments to find some solution to such issues led to initiatives being taken both within the United Nations and by agencies outside, such as the International Law Association, to ‘state’ or ‘restate’ the law.
2. Initial Steps: The International Law Commission Sub-committee
Whilst generally favourable to the idea of codifying the law of State succession16 the ILC was unsure as to how best to approach the topic. The question of succession seemed to pose a wide variety of problems (from matters of contract, tort, and nationality to questions of ownership and debt, and the survival of treaties) and it was not entirely apparent what had been happening over the past decade in the context of decolonization. The ILC decided, therefore, on the one hand to (p.97) request the Secretariat to put together several studies on contemporary practice and, on the other, to establish a Sub-committee composed of ten members17 with a view to making recommendations to it, as to the scope of the subject and the method to be adopted. Having studied and discussed the various working papers drafted by its members18 together with three ‘studies’ on the subject produced by the Secretariat,19 the sub-committee drafted a report the main points of which were subsequently endorsed by the ILC at its fifteenth Session in 1963.20
The Sub-Committee's report consisted of a series of brief papers composed by each of its members and a set of recommendations that were drafted consequent to its discussions. Four of the recommendations found in the Sub-committee report appear to have had considerable significance in terms of how the ILC subsequently addressed the topic of succession. The first of these was the decision to ‘prioritize’ examination of the question of State succession and to de-emphasize, by contrast, the question of governmental succession. Several members of the Sub-committee (such as Briggs,21 Tabibi,22 and Castrén23) were initially quite clear in the view that questions of State and governmental succession were entirely distinct. For them the issue could be addressed at the level of ‘personality’: since a change in government did not ‘affect the identity of a State’, nor necessarily involve a change in territory, there was no need to conflate it with the question of State succession, which involved changes in legal identity and hence necessitated corresponding changes in the legal environment.24 State succession, apart from anything else, was much more important. Others, however, were more cautious in this respect. Rosenne, for example, adopting a position later to become associated with O'Connell,25 cautioned against the employment of such ‘technical’ and ‘artificial’ distinctions:
In some instances the acquisition of independence may have taken the form, technically, of a change of government, such change being the product of due constitutional (p.98) process… . In others, the process of emancipation and independence of colonial territories has clearly created a new international personality. In some cases the transition was peaceful, in others it was accompanied by the use of force and acts of warfare, sometimes with, and sometimes without, the co-operation of the metropolitan State.26
As Rosenne was to explain,27 a difficulty with the distinction between State and governmental succession was that there appeared to exist two categories of colonial territories with which they would have to deal: those which had been formally annexed by the colonial powers and those which had not.28 Territories annexed as ‘colonies’ would begin life as entirely ‘new’ States; those merely placed under a régime of ‘protection’ or ‘trusteeship’ enjoyed a distinct legal identity prior to independence and hence were not entirely ‘new’. Whereas in case of the acquisition of independence of Kenya or Ghana, for example, there was no doubt that one was faced with a case of State succession. That conclusion, however, was not so obvious in the cases of Jordan, Lebanon, or Morocco on the termination of the respective mandates and treaties of protection.29
To some extent this argument was clearly persuasive for members of the Sub-committee, but there was a simultaneous reluctance to address the issue of governmental succession in its entirety. It was clear to the Sub-committee, for example, that questions of succession to acts of insurgents30 or responsibility for ultra vires acts of previous governments31 were not subjects with which the ILC should involve itself. It was therefore suggested that the Commission should initially concentrate upon the topic of State succession, and address succession of governments ‘in so far as necessary to complement the study of State succession’.32 The equivocation of the Committee on this point was, in some respects, quite understandable given the fact that the ILC was only just embarking on its first study of the topic, but it was also to highlight a point of continued prevarication that was to mark the work of the Commission thereafter. How was it to deal with the intermediate category of ‘quasi’ or ‘residual-sovereignty’ within the framework (p.99) of State succession? Were the various templates of colonial authority really that significant in light of the imperative of self-determination?
The second recommendation of the Sub-committee was again a matter of prioritization. In several of the working papers before the Sub-committee, members had suggested that the central question for the ILC would be the extent to which ‘traditional’ rules and principles governing State succession adequately covered the situation of colonial independence. In his paper, for example, Elias suggested that whilst existing rules and past State practice were not necessarily inapplicable, a ‘deeper kind of legal analysis and adaptation is called for’.33 One could neither apply the principle of universal succession, nor that of the tabula rasa, to newly independent States. What was needed, rather, was a close and painstaking study and analysis of the policies and practices of States and depositaries concerned.34 Elias's emphasis upon the study of practice rather than redundant doctrine or ‘theories of succession’ was echoed by several others in the Sub-committee,35 but it was Bartoš who presented the contemporary problem most clearly. Bartoš pointed out that ‘traditional’ approaches to the question of succession predicated upon general rules of continuity or discontinuity of legal relations were far too categoric, and insufficiently attuned to the ‘material and legal status of the independent or emancipated State’:
The absolute repudiation of such treaty relations by the new State would appear at first sight to ensure that there will be no acceptance of passive succession, ie acceptance of unfavourable treaties which may have been concluded by a foreign master without regard to the needs or interests of the liberated territory and its population. Such a situation, however, would put the newly created State in difficulties, at least for a time, for it would have no treaty relations with other States, perhaps not even its neighbours, with the consequence that even its frontiers, transit requirements, water supply, use of waterways, etc. could be called into question. On the other hand, if the old rule is maintained that treaties termed traités internationaux réels – ie treaties relating to the status of territory, to territorial servitudes and to privileges granted with regard to investments – continue in force, then the right of self-determination and the unrestricted sovereignty of the emancipated people is challenged once more as, consequently, is also the inalienable right of that people to the sources of its national wealth… . [I]f such treaties are recognized as remaining in force, the question arises whether the people concerned have really gained their freedom, or whether these treaties do not represent the vestiges of colonialism and the basis for what is now called ‘neo-colonialism’ – one of the phenomena contrary to the principle of decolonization which, deriving as it does from the right of self-determination, has become one of the guiding principles of the international practice established by the will of States within the framework of the United Nations. Here, as in many other (p.100) branches of public international law, traditional rules must necessarily be intermingled with modern concepts; or rather it is necessary to bring these traditional rules into accord with the principles of the United Nations Charter and with the gradual evolution resulting from its development and application.36
For Bartoš then, the problem was one of adapting, or modifying the traditional rules of succession (such as existed) in order to bring them into ‘harmony’ with the law of the newly created State and the right of its people to self-determination. The ILC was thus urged to commit itself to the progressive development of the law of State succession ‘in the spirit of the policy of decolonization’ and in line with the principles within the UN Charter.37 What was left to be discovered was how to translate these ideas into a framework of clear and consistent rules and/or principles.
There were several obvious consequences associated with Bartoš's approach to the issue. One was that emphasis would clearly have to be placed upon an analysis of contemporary, rather than historic, practice38 and the ‘progressive development’ of the law of succession rather than its mere codification;39 another, that the most appropriate outcome in such circumstances might be the adoption of a draft agreement rather than a set of general principles or model rules.40 Although mooted, neither of these suggestions found their way in to the final report. What did, however, was a clear direction to the Commission to the effect that it should ‘pay special attention to problems of succession arising as a result of the emancipation of many nations and the birth of so many new States after World War II’ and that ‘the whole topic should be viewed in the light of contemporary needs and the principles of the United Nations Charter’.41 This direction was subsequently reinforced by several General Assembly Resolutions42 which instructed the ILC to concentrate, above all else, upon the practice of decolonization and (p.101) became, as we shall see, a central motif in the rules finally articulated by the ILC. Paradoxically, however, this emphasis upon the experience of decolonization, was also to become the most persistent point of criticism of the 1978 Vienna Convention.43
The third decisive recommendation of the Sub-committee concerned the topics to be addressed. In his initial memoranda concerning the delimitation of the topic,44 Elias suggested that there were four main fields that the ILC might consider addressing: State succession in respect of treaties, contracts (including debts and concessions), torts, and State property. Rosenne, for his part, was not convinced that all such matters fell within the remit of an ‘international law of State succession’, particularly given the terms of Article 2(7) UN Charter:45
The effect of identifying and applying the concept of domestic jurisdiction would be, broadly speaking, to exclude all questions appertaining to the legal relationships between the new State and its nationals when those relationships are a continuation of identical relations previously subsisting between the former Government of the dependent territory and the same individuals who were then subjects of that Government … . Questions analogous to succession may arise in those relationships. However, these are not questions of succession under international law.46
It thus appeared to Rosenne that a whole host of questions could be excluded from the ILC's work at the outset, including for example; questions relating to the continuity of the legal system; the enjoyment of private law rights and obligations; the continuation or otherwise of rights of officials on becoming nationals of the new State; the status of contracts, internal debts, tax liabilities, and franchises; and the question of torts.47 Consideration of such issues would only arise in the case of aliens. In the discussion, however, members of the Sub-committee were less than convinced about this a priori exclusion of such matters. Briggs, for example, reiterated the point that Feilchenfeld48 had made to the effect that one of the central questions in case of succession was the extent to which international law required a successor State to assume or revivify the municipal law (p.102) obligations of its predecessor.49 What was, or was not, within a State's domestic jurisdiction was thus a conclusion, not a point of departure, and could only be established once the appropriate study of the matter had been undertaken.50 It was thus decided to include within the remit of the subject all matters that might plausibly be affected by a succession of States,51 and, by way of organization, the Subcommittee suggested that the ILC divide the topic into three ‘headings’: succession in respect of treaties; succession in respect of rights and duties resulting from other sources than treaties; and succession in respect of membership of international organizations.52 It suggested, furthermore, and in light of the fact that it was still engrossed in its work on the law of treaties, that priority be given to the first of these topics.
As with other recommendations of the Sub-committee, this decision initially structured the ILC's approach to succession. At its 1967 session, the Commission adopted the headings advanced by the Sub-committee and appointed two Special Rapporteurs to deal with succession to treaties and succession to rights and duties resulting from sources other than treaties respectively. The question of membership in international organizations, however, was left to one side and eventually abandoned a few years later.
The final recommendation of significance adopted by the Sub-committee was its suggestion that the question of succession in respect of treaties ‘should be dealt with in the context of succession of States, rather than in that of the law of treaties’.53 As suggested above, at the time at which the Sub-Committee was meeting the ILC was mid-way through its work on the Law of Treaties. Whilst Fitzmaurice had dealt with the question of succession in passing in several of his reports,54 there was no indication at all that the question of succession to treaties would be addressed in sufficient detail55 (as it turned out, of course, Article 73 of the 1969 Vienna Convention specifically reserved the application of the Convention as regards questions of succession).56 The obvious question that had (p.103) to be addressed was whether the issue of succession in respect of treaties should be dealt with as part of that ongoing project, or rather as part of a separate project on State succession.57 The issue was not merely one of organization, but appeared to have both methodological and substantive dimensions. Rosenne, for example, pointed out in his working paper that whilst the ILC had already established in its work on the law of treaties that it should eschew classification of treaties by reference to their subject matter, that was far less easy in case of State succession. Practice and opinion in case of succession, he suggested, frequently discriminated between different types of treaties (for example by postulating the survival of ‘dispositive treaties’, or treaties creating local obligations in case of change of sovereignty). This was such as to leave open the question whether the Commission could effectively deal with the problem of border stability, for example, within the framework it had chosen for the law of treaties.58 Further to this, the question of treaty survival in case of succession also posed a series of questions additional to those currently under investigation – particularly as regards the third party effects of devolution agreements – which again pointed to the need to address it in relative independence of its work on the law of treaties.
Whilst Rosenne's points were such as to suggest that the full range of issues relating to succession might not be suitable for incorporation within the work on the law of treaties (delaying, perhaps, the completion of that project), the full implications of the Sub-committee's recommendation were not entirely clear. Did this merely mean that the Commission should adopt a set of articles as a supplement to those drafted on the law of treaties (taking the rules on treaty law as its starting point)? Or were there further implications associated with addressing the issue within the context of ‘State succession’? In part, at least, the decision might be read as implying that the main emphasis would be upon developing a ‘law of State succession’ in which the various material elements (treaties, contracts, torts, property, and debt for example) would be united within a single conceptual and methodological framework, and which would not necessarily conform to the approach adopted in respect of the law of treaties. Once again, the Sub-committee appears to have struck upon an issue which was to become quite significant for the Commission's subsequent work on State succession.
Although the Commission had approved the report of the Sub-Committee at its session in 1963 and had appointed a Special Rapporteur (Manfred Lachs) to examine the issue, no further progress was made in the following three sessions (1964–6) owing to its continued work on the law of treaties and special missions. At its session in 1967 the Commission reviewed its programme of work and decided to expedite study of the question of State succession in respect of treaties. (p.104) Since Manfred Lachs had resigned from the Commission on his appointment to the International Court of Justice, Sir Humphrey Waldock was appointed as Special Rapporteur.59 Mohammed Bedjaoui was also appointed as Special Rapporteur to deal with the adjacent questions of succession in respect of rights and duties resulting from sources other than treaties.
Waldock was to produce five reports on succession in respect of treaties in the years 1968–1972.60 The first of these consisted largely of a discussion of methodological and conceptual issues, but also included draft articles relating to the definition of succession, the scope of the provisions, the question of constituent instruments of international organizations, and succession to boundaries. In the second report, Waldock produced a draft article relating to consequences of the cession of territory and addressed the respective status of devolution agreements and unilateral declarations. In his third, he produced eight draft articles with commentary relating to the position of ‘new States’, which he supplemented in his fourth report with an additional five articles mainly dealing with bilateral agreements and other related provisions. In his final fifth report, Waldock sought to deal with all outstanding issues including those relating to protectorates, trusteeships, and mandated territories, the formation and dissolution of unions of States, and the dismemberment of States, concluding with two final provisions relating to boundary and territorial settlements. To assist him in his work, the Secretariat produced a series of studies relating to past and contemporary practice that supplemented those produced for the Commission's Sub-committee.61
Waldock himself came to the project on State succession having recently completed the work of the ILC on the law of treaties. Shortly after starting his work, the Vienna Conference on the Law of Treaties had been convened resulting in the adoption of the Vienna Convention of 1969 which itself represented something of a triumph for the ILC and, more specifically, for Waldock himself who had assumed the role of chairman in 1967. Waldock was an international lawyer steeped in practice. His formative years had been spent in the British Admiralty from where he began to acquire a prominence and reputation such that by the 1950s he was regularly employed as counsel by the British government in cases before the ICJ (Corfu Channel case, Anglo-Norwegian Fisheries case, Anglo-Iranian Oil Company case). This also led him to a variety of wider engagements such as (p.105) acting as legal advisor to Secretary-General Hammaskjold in his critical mission to Peking in 1955. It is evident that Waldock brought this practical orientation to his work in the ILC. In his review of Sir Humphrey Waldock's life and work, Brownlie repeatedly refers to Waldock's practical aptitude: Waldock possessed a ‘rare combination of legal scholarship, practical sense and diplomatic skill’;62 he was always keen to ‘make things work’63 and foster consensus; he was a ‘man of common sense’64 and one constantly seeking to hammer everything out ‘on the anvil of practice and principle’.65 His orientation, Brownlie suggests, was one of ‘non-sectarian positivism’;66 yet this was not a theoretical position as he appears to have had ‘no deep interest in theory as such’.67 In fact, one of his strengths ‘lay in his capacity to reconsider his first view’,68 to ‘draw together a diversity of views’ and seek solutions through compromise. This was a view echoed by Paul Reuter in the ILC itself, who praised Waldock's work on succession for his ‘reliance on experience and the facts and the avoidance of premature formulations and over-generalizations’.69 His was the not the voice of an ideologue, but that of ‘logic’ and experience.
It is difficult to overestimate the influence of Waldock's approach to codification upon the articles of succession. Throughout, his commitment to the development of formulations, worked out on the back of a detailed examination of State practice, is more than evident. Equally, his unwillingness to hamstring the project by making grand deductions from theoretical premises is also clear: at times he was utterly strategic in his adoption of particular theoretical postures. Although many subsequently criticized the draft articles for their apparent obsessive attention to the question of self-determination, this was not, in fact, a principle that Waldock had focused upon at the outset. Rather, it was an idea that he appeared to adopt halfway through his work as a way of organizing what might otherwise have been an inconsistent array of practice. As Brownlie suggests, it was Waldock's fealty to State practice that was the key to his work, and his reports to the ILC on State succession are indicative of both the possibilities and limits of that approach.
3. The International Law Association
Whilst Waldock was undoubtedly the key figure in developing the work of the ILC relating to succession, it would be wrong not to make note also of the work undertaken by the International Law Association in relation to the same subject. (p.106) The ILA had begun its work on State succession shortly before the ILC in 1961 when it established a Committee of fourteen members under the chairmanship of Charles Rousseau with DP O'Connell as Rapporteur. The Committee began by producing a volume entitled The Effect of Independence on Treaties published in 1965, and continued its work until 1972 by which time it had drafted four reports, and had adopted several significant resolutions concerning State succession.70
Whilst all of the ILA's work on State succession was evidently influential in terms of the attention given to it in the Commission's work, at the early stages it was the ‘handbook of practice’ which gained most attention.71 The conclusions of the handbook (if one can call them that) gave a fairly clear indication as to the direction of the ILA's subsequent work, and in many respects reflected the work and opinions of its Rapporteur, O'Connell.72 The ‘handbook’ begins, very significantly, by providing an account of two different ‘processes’ by which independence may be attained.73 The first was said to be an ‘orderly, and some- times progressive, transfer of constitutional power to dependent territories’, the second ‘that of secession when no regular grant of power is involved’.74 This distinction between the constitutionality or otherwise of the process of acquiring independence served as a way of distinguishing, as far as the ILA Committee was concerned, between two categories of practice. On the one hand were the disorderly processes that accompanied the acquisition of independence in the 19th and early 20th centuries, exemplified by the separation of Iceland from Denmark in 1918, Brazil from Portugal in 1825, the dissolution of Colombia in 1828–31 and the dissolution of the union between Norway and Sweden in 1905.75 On the other hand, and by contrast, were the cases of decolonization after 1947, which (p.107) were largely marked by an orderly and constitutional ‘transfer of authority’ (the exceptions specifically mentioned being Israel and Guinea).76 As a consequence, the ILA Committee observed that:
[t]he implication is that independence of colonial territories at the present time is a process constitutionally and sociologically distinguishable from the traditional forms of secession, and that the problem of State succession to treaties, which arises from the fact of independence, is contextually novel. It follows that the precedents afforded by previous instances of succession cannot be regarded as completely relevant.77
This distinction was to have certain practical consequences as far as the ILA Committee was concerned. In its examination of ‘previous cases of independence’ it was observed that in several of them, the new State had denied the continuance of pre-independence agreements with third powers (citing the United States, the Spanish American colonies, Greece, Panama, Finland, Czechoslovakia, and Poland). This was not a uniform practice78 but was sufficient to suggest that a principle of automatic succession to treaty obligations would be hard to sustain. By contrast, the Committee was to observe in practice relating to Commonwealth countries such as Australia, Canada, New Zealand, India, Pakistan, and Ceylon, a general commitment to the continuity of pre-independence treaties of various kinds (evidenced in public pronouncements,79 ‘devolution agreements’,80 and the treaty lists of various States).81 This seemed to flow, in the view of the Committee, from the gradual, evolutionary, process by which each of the Commonwealth States acquired its independence (moving through stages of internal self-governance to external autonomy) in which treaty continuity seemed to follow, as a natural consequence, from the fact of continuity of the local legal order. As far as the ILA Committee was concerned, therefore, decolonization was to be perceived to be far less of a radical, or traumatic, experience than that which had marked the dissolution of various unions within Europe and elsewhere in the 19th century, and its implicit conclusion was that no great reliance could therefore be placed upon those earlier precedents as a way (p.108) of sustaining the idea that States emerging from colonialism might begin life free of any inherited treaty obligations.
The ILA Committee's emphasis upon the evolutionary nature of the independence process during decolonization was, in some respects at least, a product of the somewhat selective nature of its appraisal of practice. The Committee devoted considerable space to the elucidation of the constitutional arrangements and practice of Commonwealth Dominions in their gradual acquisition of independence.82 The cases of Australia, Canada, New Zealand, and India took pride of place, and by contrast far less consideration was given to the more sudden, and less gradual, process of decolonization in parts of Africa,83 or indeed of the much more ambivalent position adopted in the case of the Irish Free State.84 Very little was made of the various initiatives in Tanganyka and Uganda ‘amongst others’ to maintain in force pre-independence treaties on a provisional basis,85 and its discussion of the effect of devolution agreements was extremely cursory. The Committee's emphasis upon the internal constitutional processes that preceded independence was to render the description of practice extremely complex86 (it was observed, for example, that in British practice, treaties came to be applicable (p.109) to dependent territories in eight different ways),87 but the underlying assumption remained clear enough. The key element for purposes of determining the continuity or otherwise of international agreements was the development of a local legal identity prior to independence88 whose survival in the transition to independence would largely ensure the continuity of international agreements (if only because many such agreements will have been ‘localized’ within the legislative order.)89
Behind this judgment, was an account of the nature and effect of succession which can only fully be understood by reference to the work of O'Connell. By this stage, O'Connell had already made clear that, in his view, ‘traditional’ approaches to the question of treaty succession (for which read those in the late 19th and early 20th century) were problematic for two main reasons.90 The first was the limited nature of the practice upon which they were based. Not only was it clear that the typical instances of succession were limited to either the transfer of territory from one colonial power to another or the annexation of new colonies, but it was also evident that the treaties in question tended to be confined to bilateral treaties of alliance, peace, commerce, and extradition. The second concern was that the authors in question had tended to try to deal with the problems of succession in terms of a pre-formed, but undoubtedly problematic, conception of ‘personality’ in which their conclusions hinged almost entirely on a finding as to whether or not a State was ‘new’ or ‘old’. He was to observe, in this respect, that:
O'Connell thus advocated an approach that took into account ‘sociological as well as juridical factors’. Taking as his starting point a notion of the ‘harmonization’ of international and municipal law,92 he was to suggest that in case of succession, a presumption of treaty continuity could be found on the one hand in the juridical survival of the legal order and, on the other, in the sociological identity of (p.110) the territory and the people affected by a treaty.93 Treaty survival, in other words, hinged upon the prior implementation of international agreements in local law: if local law survived, so also would those international agreements that had become ‘localized’ through legislative or other enactment.94 If, furthermore, incorporated treaties were to survive, one could then establish a general presumption of treaty continuity in case of succession. This was evidently the case, on his analysis, as regards the phenomenon of decolonization.95
hidden in the word ‘personality’ is an assumed definition which is nothing more or less than the conclusion to the argument being pursued. If an author chooses to interpret personality as meaning capacity to contract, and predicates continuity of treaties upon personality, then he will argue that treaties survive only if the States retain the treaty-making power; and if he chooses to interpret it as meaning capacity to legislate to carry out the treaty internally, then he will argue the irrelevance of the treaty-making power.91
The implicit subordination of the question of treaty continuity to the continuity of the domestic legal system was obviously a convenient shortcut, but it seemed to open out as many questions as it answered. Apart from the very real difficulties associated with postulating the survival of a legal system or its grundnorm at the same time as supposing that the newly emergent State enjoys full rights of sovereignty (revisiting the classic argument as to the relationship between the continuity of law and the identity of the ‘sovereign’ or the ‘legal order’, )96 this was always going to be an unsatisfactory argument. If the answer to the question as to whether treaties have survived the transition to independence was merely to be found in the degree of legal continuity at the domestic level, the matter would no longer be one with which international lawyers could effectively engage (unless, of course, they were to take the far more radical step of arguing that international law requires the continuity of local law, both public and private, in case of succession).97 It might have made sense in the context of decolonization (insofar as continuity of local law was frequently maintained) but it would have (p.111) clearly opened up the question of treaty survival in case of revolutionary changes in the legal order.98 O'Connell also evidently failed to appreciate the distinction between treaties requiring legislative action and those that could be performed executively – if the latter did not survive (by reason of not being ‘localized’) then any postulated presumption of continuity would be both highly relative and far less general than might otherwise be supposed.99
But there was also a more obvious problem associated with the ILA Committee's account of decolonization as an orderly, constitutional process, more akin to a change in government than anything else. However far the colonial powers might have wanted to ‘manage’ decolonization to ensure a stable and orderly process of transition in which British or French commercial and other interests were secured in the process, that was not necessarily how the subaltern populace would have seen the process, nor indeed the emergent elites themselves. Not only were there the cases in which the Committee's picture simply did not fit (Algeria, Israel, Upper Volta, and Vietnam being the obvious examples), but it overlooked the very real process of resistance, struggle, and incipient nationalism that pushed forward the move towards decolonization. In many cases, the final managerial arrangements concerned with ‘handing over’ the reins of government were preceded by violent conflict between the administration and incipient national liberation movements.100 In many others, furthermore, independence was followed by the outbreak of civil conflict the causes of which could be traced directly or indirectly to the political settlement that structured the decolonization process.101 For all the evidence pointing towards an orderly, constitutional transition, there is also much to suggest that in many cases it was nothing of the sort.
Further to this, O'Connell's argument seemed to be all too convenient. In many colonial territories, the ‘local law’ upon which O'Connell was to place such great store, was in large measure not an indigenous ‘legal order’ or one that in any great respect reflected local culture or values, but a law frequently ‘transplanted’ as part of the colonial project of ‘civilization’.102 Whilst it was not necessarily the immediate desire of the newly formed governments that all ‘colonial’ law should be discarded or abandoned, neither was it obvious that local implementation of, for example, an extradition agreement with a Western government should determine the survival of the treaty. This was surely a case of the tail wagging the dog.
As far as the ILA Committee was concerned, however, the arguments in favour of treaty continuity in case of succession did not merely flow from what it observed in State practice, but were also of a prudential character. In surveying (p.112) the various ‘policy options’ available to new States the Committee was to indicate its implicit preference for a presumption in favour of treaty continuity. Not only would it avoid the problems of selection that other policies might involve, but it would also avoid the objection of undue constraint; ‘almost all’ of the treaties inherited could easily be ‘got rid of, if politically inconvenient, by utilization of denunciation clauses, or by negotiation’.103 Further to this, the Committee emphasized that:
Whilst the handbook itself drew no explicit conclusions, the suggestions implicit in the above analysis became the subject of a series of recommendations put before the ILA conference in 1966104 and again in 1968.105 In the 1968 session, eight resolutions were adopted without amendment relating to succession in respect of treaties (reproduced in Waldock's second report),106 the main thrust of which were to articulate a presumption of continuity of treaty obligations in all cases of succession. The first resolution provided that, in case of a newly independent State, it ‘may invoke and have invoked against it a treaty that was internationally in force with respect to the entity or territory corresponding with it prior to independence’ so long as it was notified of the existence of the treaty and had not declared within a ‘reasonable time’ after the attainment of independence that it does not regard the treaty to be in force.107 The second resolution provided that in case of unification, treaties would continue ‘within the regional limits prescribed at the time of their conclusion to the extent to which their implementation is consistent with the constitutional position established by the instrument of union’, and that in case of the dissolution of a union, ‘the separate components of the composite State may invoke or have invoked against them treaties of the composite State to the extent to which these are consistent with the changed (p.113) circumstances resulting from the dissolution.’108 The other resolutions largely concerned associated matters such as the question of termination, reservations, signature, and the effect of succession on the entry into force of an agreement. A notable inclusion, however, was a provision relating to agreements delimiting boundaries in which it was provided that if the agreement had been executed (in the sense that the boundary had already been delimited) then ‘what is succeeded to is not the treaty but the extent of national territory so delimited’. Otherwise, succession would be governed by the principles in the first resolution or to ‘other legal principles as may prove to be relevant’.109
a relevant factor tending towards continuity rather than discontinuity of treaty relationships is the role which the modern treaty plays in stabilising the economic environment of States; a great and complex structure of world relationships, involving fundamental human interests, is contingent upon the survival of some categories of treaties. The successor States themselves will be as much prejudiced as other States, in their relations inter se, by the collapse of this system….
4. A Change in Focus: The Waldock Reports
Whether or not as a direct consequence of the ILA's work in this field, Waldock was quick to change the focus of the Commission's work on succession in respect of treaties in several important ways. In his first report110 Waldock began by revisiting two of the decisions that the Commission had apparently made in 1963. The first of these concerned the Sub-Committee's recommendation that the general framework governing its approach to the issue should be that of the ‘law of State succession’. Waldock begins his report by asserting, in line with the approach taken by O'Connell,111 that ‘the solution of the problems of so-called “succession” in respect of treaties’ is to be sought, not within ‘any general law of “succession” ’, but rather within the framework of the law of treaties.112 His rationale, to begin with, was that the sheer diversity of ‘modern practice’ seemed to preclude the possibility of dealing with the issue of treaty continuity in terms of any general principle of succession. Neither the principle of universal succession nor that of the clean slate was helpful. He was, furthermore, deeply sceptical as to whether ‘any specific legal institution’ of succession had actually been recognized in international law – a point which seemed to be demonstrated by the variety of theories on the point found in the writings of past and contemporary jurists.113 He suggested, in that vein, that: ‘[i]f any one specific theory were to be adopted by the Commission, it would almost certainly be found to be (p.114) a strait-jacket into which the actual practice of States, organizations, and depositaries could not be forced without inadmissible distortions either of the practice or the theory’.114
Waldock's determination to address the issue as a ‘sequel’ to the rules on treaty law115 rather than as a question of succession, was thus formed upon two intuitions: the first was that many of the issues could be addressed merely through the extension of existing rules of treaty law to problems of succession; the second was that the main concern should be to ensure fidelity to State practice rather than indulge in a Procrustean desire to force it within some a priori theoretical framework.116
As regards Waldock's second intuition, it is evident that the attempt to avoid theory would always be difficult. Even adopting a firmly empirical stance, Waldock would still have to try to organize the practice under observation within the frame of some general rubric in order to differentiate between the ‘rules’ and their ‘exceptions’. In doing so he would also have to decide upon the relevant considerations. Would the key be the nature of the agreement, the intention of the parties, or even, perhaps, the nature of the events giving rise to succession?117 Other members of the Commission were alert to the possibility of a slight of hand here. Albónico, for example, suggested that Waldock's proposal would have the effect of affirming a principle of continuity:
If the problem were approached from the point of view of the law of treaties, the general principle would be that, subject to certain exceptions that confirmed the rule, a party that consented to be bound by a treaty did so both on its own behalf and on behalf of its successors … . If the problem were approached from the standpoint of succession, however, the emphasis would be on the change which took place when the sovereignty of the predecessor State was replaced by that of the successor State. Since the successor State was a separate legal entity, the rule would be exactly the opposite to that which would apply (p.115) under the law of treaties: there would be no transfer of obligations and rights to a State which had not been a party to the negotiation, signature or ratification of the treaty.118
Despite Albónico's concerns, it was not at all obvious that the alternative would have been any different: after all, the doctrinal separation between the ‘fact’ of succession and its ‘consequences’ had been articulated primarily as a result of the perception that to speak of succession was to imply legal continuity. In any case, it was still not entirely clear as to what would be entailed by a decision to approach the matter from the standpoint of the law of treaties in the way Waldock suggested, and it was certainly not obvious that his alternative starting point would actually make the issues any more tractable.119
Whilst treaty interpretation may suffice to establish the position of contracting parties as regards the extension of rights to successor States (ie allow, in certain cases, the participation of successor States), it would do little to substantiate how or why the fact of succession itself may lead to the assumption of treaty obligations on the part of a non-signatory State.120 Ultimately the central problem seemed to be that treaty law has as its defining characteristic the assumption of legal obligations by explicit and intentional acts of consent by identifiable parties. The institution of the treaty as a ‘pactum’ or ‘agreement’ seems to require as much, and the supposition that a State may become party to a treaty without intending or wishing to do so can only be regarded as a signal exception to this basic principle. The idea of succession thus seems to fall foul, in particular, of the pacta tertiis rule (as was to be embodied in Article 34 of the Vienna Convention on the Law of Treaties)121 which provides that a treaty cannot, by its own force alone, create obligations for third parties.122 Since treaties are deemed to be effective only as between the parties in their relations inter se,123 it would seem to follow that successor States cannot be bound by their terms merely in virtue of the fact (p.116) that the State formerly exercising sovereignty over the territory subject to succession was itself a party to that treaty.124
If a strict application of the pacta tertiis rule would appear to eliminate any possibility of de iure ‘succession’ to treaties (in the sense that the successor State would automatically assume rights and obligations under the instrument as a matter of law and irrespective of consent), two alternative approaches may be used to preserve the continuity of treaty obligations. The first is to understand State succession as a limited exception to the application of the pacta tertiis rule so as to provide for the assumption of obligations on the part of States which would otherwise be regarded as third parties.125 If so, then clearly there is a need to look beyond the standard framework of the law of treaties. The second alternative is to deny that the changes in question are such as to make successor States third parties at all.126 In such a case, however, one necessarily turns back to the theories of succession and sovereignty that Waldock seemed so keen to avoid. That neither here, nor at any later stage, did Waldock seek to explain what the consequences of his approach might be, or the theoretical framework that lay behind it,127 was largely typical of his stance. He was concerned, above all else, to elucidate rules that appeared to him to be practical – both in terms of how far they seemed to be readily cemented in existing practice, and in terms of how appealing they might be to any future clientele. He was not, by contrast, overly concerned with putting together a coherent theoretical framework for understanding the relationship between treaty relations and notions of sovereignty, and his resistance to the existence of a ‘law of succession’ must be seen in that light.128
(p.117) The second issue revisited by Waldock concerned the suggestion of the Sub-committee that the Commission should pay special attention to the problem of succession arising as a result of the emancipation of States since World War II. As we have seen, the ILA also seemed to insist, in this respect, that older precedents were of limited value as a way of framing a response to the problems raised by decolonization.129 Waldock, for his part, was happy to affirm that an emphasis on problems of new States needed ‘no justification or explanation’.130 He took the view, nevertheless, that problems of succession affect old States as much as new and doubted whether ‘any purpose would be served by distinguishing at all sharply between the value of earlier and later precedents’.131 The basic elements of earlier cases of succession were much the same as in modern cases and to attach no value to those precedents would be somewhat arbitrary. He concluded by reminding the Commission that: ‘the basic problem in regard to succession remains what it has always been: to discuss with sufficient clearness how far the practice is an expression of policy and how far and in what points an expression of legal right or obligation.’132
The implication of this, of course, was to put in question the agenda that had been set by Bartoš in the Sub-committee. Bartoš had emphasized the importance of addressing the question of succession by reference to ‘modern’ principles of international law, and particularly those established in the UN Charter (including, in particular, the principle of self-determination).133 For him, historical precedents – such as those concerning the permanence of territorial servitudes and other ‘privileges of investment’ – were undoubtedly problematic insofar as they appeared to allow the persistence of neo-colonial conditions of exploitation and subordination that were directly in conflict with the right of self-determination. This, in turn, suggested that the problem was less one of ‘identifying’ the law and distinguishing it from policy; rather it was a question of working out the most appropriate legal solutions that accommodated both the legitimate interests of the newly independent States, and those of other members of the international community.134 Law and policy, practice and principle, were thus inextricably inter-twined.
One thus finds between Bartoš, Waldock, and the ILA Committee three different ideas as to the relationship between the phenomenon of decolonization and historic instances of State succession. Both Bartoš and the ILA Committee emphasize the relative marginality of earlier precedents – insisting that the experience of decolonization was quite different from, for example, the separation of (p.118) Belgium from the Netherlands, or Finland from Russia. Their reasons for this conclusion differed of course. For the ILA Committee it was a question of the non-revolutionary character of decolonization, for Bartoš by contrast a question of the application of the principle of self-determination. But both were happy to endorse the particularity of decolonization and of course in doing so, put in question the longevity of the project. Waldock, by contrast, seemed to deny that decolonization was in any respects a novel phenomenon – responding, perhaps, to the intuition that all cases of secession past and present were cases of self-determination135 – and seemed to deny in the process that there was any separation between the ‘modern’ and ‘traditional’ law on the subject. In his second report, Waldock was to make this position even more explicit. There, he was to note that the position adopted by Bartoš amongst others was problematic given the nature of the ILC's work:‘decolonization is approaching completion, and the adoption of rules governing it will not satisfy future needs; attention should therefore be devoted mainly to the cases of succession most likely to occur in the future, eg dissolution, merger, economic integration, and not only to the important but transitory problems of decolonization’.136
But yet he was also to note, with no obvious sense of self-contradiction, that apart from the resort to devolution agreements in the context of decolonization, State practice actually:
The practice surrounding decolonization could thus be addressed, but it would have to be shorn of any ideological or other connotations associated with a process of resistance to ‘colonialism.’138
contains comparatively little evidence suggesting, so far as concerns the present topic, a need to treat decolonization as a specific category of succession. Equally it contains little evidence to suggest that decolonization, as such, calls for recognition as a specific element in the legal rules applicable to the succession of new States. The points mentioned [in discussion] … appear for the most part to be points which, if valid, will be valid also in the case of a new State arising from a dismemberment outside the process of decolonization.137
Waldock's refusal to acknowledge the singularity of decolonization – and perhaps, at the same time, any emphasis upon the UN Charter as having ushered in a new era of international law – was in some respects predicated upon his obvious empiricism. He seemed to share with the ILA Committee (and indeed with many other members of the ILC) a belief that the problem of State succession could only properly be understood once an exhaustive survey of State practice and judicial decisions had been undertaken. The volumes of material produced by the Secretariat and the ILA, were thus a necessary prelude to any process of legal (p.119) restatement or policy prescription (an orientation to the subject which has never quite been shaken off ). Deductions from abstract principle, whether that be ‘succession’ or ‘self-determination’, were only to be admitted insofar as the ‘weight’ of practice and opinion would bear. By way of justifying his proposed draft article ensuring the continuance of boundaries established by treaty, for example, Waldock simultaneously excluded the pertinence of self-determination by way of arguing that in its Charter formulation it was an ‘independent principle’, whilst maintaining that the majority of both practice and opinion seemed ‘clearly to be in favour of the view that boundaries established by treaties remain untouched by the mere fact of succession’.139 Rather than see such practice as standing in a position of tension with the emergent principle of self-determination (as might be understood, perhaps, in Judge Dillard's sense of a people determining the destiny of territory),140 Waldock re-defined the latter so as to exclude conflict. Whilst he was careful to make clear that his position, in this respect, ‘in no way excludes the independent operation of the principle of self-determination in any case where the conditions for its application exist’,141 his reworking of the principle was such as to suggest that the ‘conditions of application’ would only ever be found to exist by way of conclusion.
It is to be noted, nevertheless, that for all of Waldock's empiricism,142 he was ultimately far more willing to give expression to the notion of self-determination in his draft articles than the ILA Committee before him. In his Second Report, for example, Waldock was to dismiss the ILA's presumption of treaty continuity in case of succession. He suggested that it was one thing to ‘admit as a matter of policy the general desirability of a certain continuity in treaty relations upon the occurrence of a succession and another thing to express that policy in terms of a legal presumption. On this point, quite independently of the question whether such a presumption is compatible with the modern State practice, the Commission may have to consider the possible relevance in this regard of the principle of self-determination’.143
Waldock's position, in this respect, differed quite sharply from that of O'Connell whose volumes on succession barely give any mention to the possible salience of self-determination. As we shall see, however, Waldock saw self-determination as a kind of pragmatic guide to be resorted to as a way of avoiding the more uncomfortable conclusions that would result from an absolute deference to ‘sovereign consent’, but his journey to that conclusion was nevertheless an interesting one.
(p.120) 5. The Law of Treaties and Beyond
As suggested above, Waldock initially started with the view articulated by O'Connell in his monograph of 1956 to the effect that the problem of succession to treaties should be approached from the perspective of treaty law rather than by reference to a putative ‘law of succession’. For O'Connell this initial standpoint had led him to reject (at that time at least) the idea that treaties should automatically continue in case of succession. Much depended upon the character of the agreement. In case of personal treaties (which he took to be by far the largest category) they will expire with the disappearance of a State party144 and will only bind successors insofar as some element of personality is continued in the successor.145 In case of dispositive agreements, these will continue, as will provisions of multilateral ‘legislative conventions’ by reason of their ‘objective’ character.146 Whilst O'Connell soon moved away from this position147 (even though he was to continue to insist upon the significance of treaty interpretation),148 Waldock proceeded to work through some of the initial implications of this decision in his first two reports.
The first implication identified by Waldock related to the scope of application of the articles on succession to treaties. Just as the ILC had excluded from its work on the law of treaties, agreements between States and ‘other subjects of international law’ and agreements ‘not in written form’, so also, Waldock proposed that these be excluded from the scope of articles on succession to treaties. No particular controversy surrounded such decisions.149 In similar vein, Waldock suggested that reservations be attached as regards the application of the articles to constituent instruments of international organizations150 and ‘boundaries resulting from treaties’.151 In respect of the latter, the ILC had already excluded from the rule regarding a fundamental change in circumstances the case of treaties ‘establishing a boundary’152 and it seemed quite obvious to Waldock that the same rule should apply, mutatis mutandis, to cases of succession.153 Although in appearance this might seem to have cemented a rule of automatic succession to boundary agreements, Waldock was (p.121) careful in his explanation. This decision was informed by the idea that what was in question was not the treaty itself, but rather the boundary established pursuant to the treaty – the boundary represented, in other words, merely the legal situation resulting from the execution of the agreement and could not be affected by any subsequent rules governing the application of treaties.154 This was an issue, however, to which the ILC was to return at a later stage.
In his second report, Waldock continued to try to ‘clear the decks’ by tackling the question of the cession of territory (entitled rather clumsily ‘area of territory passing from one State to another’). Here, like many before him, Waldock identified the relevant rule to be that of ‘moving treaty frontiers’:
As he admitted, the rule appeared to exclude any succession in respect of treaties – its applicability being relevant only insofar as it involved the consequences of a change in sovereignty. More to the point, however, was the fact that the rule appeared to be an extension of Article 25 of the Vienna Convention on the Law of Treaties which provided that unless intended otherwise, ‘a treaty is binding upon each party in respect of its entire territory’. For Waldock this meant not only that treaties had to be extended to any new territory acquired (even if acquired after the conclusion of the agreement), but also that treaty obligations of the ceding State in respect of that territory would cease, owing simply to the loss of sovereignty. Rather than rely simply on the acquisition or loss of sovereignty by way of justification, however, Waldock emphasized that this was a conclusion that could be drawn, as a matter of treaty interpretation, from the intentions of the parties. Even if those intentions were insufficiently clear, the rule would still be established in virtue of the principles of impossibility of performance or fundamental change in circumstances (rebus sic stantibus).156
Shortly stated, the rule provides that, on a territory's undergoing a change in sovereignty, it passes automatically out of the treaty régime of the predecessor sovereign into the treaty régime of the successor sovereign. It thus has two aspects, one positive and the other negative. The positive aspect is that the treaties of the successor State begin automatically to apply in respect of the territory as from the date of succession. The negative aspect is that the treaties of the predecessor State, in turn, cease automatically to apply in respect of the territory.’155
In relying upon existing rules of treaty interpretation for this purpose, Waldock clearly felt less need to conduct the kind of detailed analysis of State practice that he was undertaking in respect of other parts of the project. In a rather half-hearted attempt to locate his principles in existing State practice, Waldock cited a number of examples many of which, however, related to cases concerning the extension of treaties to annexed territory (Algiers, Madagascar, Hawai'i, and Goa).157 That annexation was understood, in certain quarters at least, as giving (p.122) rise to title in virtue of factual control rather than by means of voluntary grant158 perhaps explained why a consistently negative attitude was adopted towards the survival of treaties of the territory so acquired. But at the same time, it put in question the assumption that such practice would sustain the same conclusion in case of the cession of territory.159 Needless to say, few other members of the Commission were to object to the rule enunciated by Waldock,160 in this context, and his apparent assumption that it was a relatively uncontroversial doctrine appears to have been sustained.
a) Devolution Agreements
Thus far, Waldock had managed, through the consistent extension of the law of treaties to questions of succession, to exclude a great deal. He had also managed to do so without reliance upon any overt engagement with the more obvious problems posed by the idea of succession. It was only when he came to deal with devolution agreements and unilateral declarations in his second report, that he was forced to work at the margins of what the law of treaties itself might tell him. Since the UK-Iraq agreement of 1931,161 the settled practice of the UK had been to propose a devolution agreement to all its overseas territories shortly before or after their independence the effect of which was to ensure that all rights and obligations under relevant international agreements would pass to the latter.162 Such practice had also encouraged other States such as New Zealand,163 (p.123) Malaysia,164 the Netherlands,165 and France166 to follow suit, and by the time at which Waldock was writing (1969) some twenty devolution agreements had been concluded in connection with the emergence of a territory to independent statehood.167 The character of such agreements varied. Some had been concluded in the immediate aftermath of independence; many however had been signed shortly before and on the advice of colonial officials. Some provided for a definitive passing of rights and obligations, others were somewhat more ambivalent on that score.168
The key concern of Waldock was the extent to which such devolutions might be thought effective as bringing about a succession to the treaties of the predecessor State. In his paper for the ILC's Sub-committee, Milan Bartoš had suggested that devolution agreements had an ambivalent character. Viewed from one perspective, they were agreements thrashed out through a process of political negotiation with the representatives of a newly independent State and which secured, in many cases, the interests of third States rather than those of the predecessor State. Their rejection would thus constitute a breach of the principle pacta sunt servanda. From another perspective, however, they also seemed to represent ‘the price of independence’,169 the terms of which were largely dictated under conditions of inequality, and were frequently oppressive (continaining, for example, obligations concerning military alliances and the maintenance of foreign bases). Upholding their validity, in other words, would run counter to the principles of the UN Charter.170 Bartoš's equivocation, on this score, was to result in the suggestion that they be regarded neither as effective nor as void, but rather as a special class of ‘voidable’ agreements whose terms could be successfully attacked if they could be shown to be incompatible with the status of the newly independent State (a point to be adjudicated by the ICJ).171
Waldock was somewhat less ambivalent on this point. The validity of devolution agreements, in his view, could largely be determined by Articles 42–53 of the Vienna Convention and he doubted the need for any special rule to be articulated in the context of State succession.172 He was to note, in passing, that (p.124) the legal effects of a devolution agreement ‘cannot be completely separated from that of its effects vis-à-vis third States’,173 but on that score took the view that such agreements could only be read as making provision for the transfer of treaty obligations from the predecessor to the successor State rather than as a vehicle for the establishment of rights and obligations in relation to third parties (in the sense provided by Articles 35 and 36 of the Vienna Convention). He thus saw the issue as one of determining the effect of such agreements by reference to their apparent intention: that of assigning treaty rights and obligations to the successor State. When viewed in that light, however, devolution agreements appeared to have very little substantive value:
The most he was thus able to admit, was that devolution agreements represented a ‘formal and public declaration of the transfer of responsibility for the treaty relations of the territory from the predecessor to the successor State’175 the effect of which was: a) to confirm what occurred anyway under general principles of law (the cessation of responsibility of the predecessor State as regards the implementation of treaty obligations in the territory concerned);176 and b) to indicate the intentions of the new State in respect of the predecessor's treaties.177 He thus (p.125) proposed the adoption of a draft article the effect of which was largely to deny any legal effect to devolution agreements.178
It is … extremely doubtful whether such a purported assignment by itself changes the legal position of any of the interested parties. The Vienna Convention on the Law of Treaties contains no provisions regarding the assignment either of treaty rights or of treaty obligations. The reason is that the institution of ‘assignment’ found in some national systems of law by which, under certain conditions, contract rights may be transferred without the consent of the other party to the contract does not appear to be an institution recognized in international law. An assignment is by its very nature a transaction which purports to impose an obligation on a third party – an obligation on the third party to accept a different form of performance of its contract than that to which it is entitled; and in international law the rule seems clear that an agreement by a party to a treaty to assign either its obligations or its rights under the treaty cannot bind any other party to the treaty without the latter's consent.’174
Waldock's reliance upon the law of treaties, thus, was to avoid the ambivalence that characterised Bartoš's response to the problem, but it did raise questions in its own right. Was it really correct to say that devolution agreements were not intended to create rights in favour of third parties in the sense of Article 36 of the Vienna Convention? From one perspective, the answer was ‘no’ – their concern was merely to allocate responsibility for existing treaty relations between the parties, not to create any new rights and obligations vis-à-vis third States.179 From another perspective, however, the purported assignment could also be seen as one in which third States were intended (whether or not explicitly) to be endowed with newly enforceable treaty rights as against the successor State (as opposed to those which may continue to subsist in relation to the predecessor).180 That such agreements may also purport to involve, at the same time, the imposition of new obligations on third States (insofar as there was a new person with which to engage) was only to suggest that something more than mere acquiescence on their part would be required for the agreement to have effect.181
In order to sustain his position (and in contrast to his approach in relation to the cession of territory), Waldock undertook a detailed and fastidious examination of State practice in which he demonstrated a consistent unwillingness to take anything at face value. He noted, for example, that the UN Secretary General, in his role as depositary of multilateral treaties, had appeared to assign (p.126) automatic effects to devolution agreements by registering States as having succeeded to treaties merely in virtue of being notified of the terms of the agreement. Waldock, however, regarded this practice as being fundamentally in error. The Secretary-General did not, he suggested, act as depositary when receiving a devolution agreement under Article 102 of the Charter, but ‘in his capacity simply as registrar and publisher of treaties’.182 As such, he could not be thought to have the authority to attribute to a devolution agreement the effect of constituting the successor State as party to the agreements in question. That was a different role to be performed once he had received the appropriate notification as depositary to the various agreements. In the same vein Waldock was studiously attentive to the apparent inconsistency in practice of those States that customarily attached an automatic effect to devolution agreements. Thus he was to note that the UK, which had been at the forefront in terms of promoting the conclusion of devolution agreements, had appeared to reject any automatic effect to the devolution agreement concluded between Laos and France in 1953, and the US had similarly taken the general view that the continuity of particular agreements would be subject to its consent.183
That Waldock was clearly of the view that devolution agreements did not, in themselves, create a legal nexus between the successor State and third parties did not, ultimately, appear to flow inexorably from his analysis of the problem in terms of the law of treaties and/or State practice. He had to work quite hard to explain why it was that third States might not rely upon such agreements in determining their treaty position with new States and why, for example, the UN Secretary-General was wrong to construe such agreements as constituting a notification of succession on the part of the successor State. The impression one gains, the closer one looks at his report, is that he had decided almost from the outset that any other conclusion was unsustainable to the constituency of newly emergent States. One senses also, that Waldock saw this conclusion as representing an application of the principle of self-determination (albeit the case that he studiously avoided any mention of it).184
But there was also a more significant underlying consideration here. Had Waldock pursued the line of argument apparently favoured by the UK and US to the effect that devolution agreements were the basis for the establishment of treaty relations with new States, he would, no doubt, have to have considered Bartoš's concerns as to the conditions of inequality underlying the conclusion (p.127) of such agreements.185 This, as Waldock was aware, was an issue that had been controversial in the drafting of the Vienna Convention on the Law of Treaties186 and had led to the adoption of a separate resolution at the Conference on the topic of economic coercion.187 Waldock's silence on matters such as self-determination, sovereign equality, and coercion may be read, thus, as an attempt to leave uninterrogated the carefully constructed edifice of rules on the law of treaties even if, in the process of doing so, he was forced to conclude that the agreements to which he had applied those rules were ultimately of negligible legal value.188 In excising the questions of politics or ideology that appeared to lie behind the conclusion of devolution agreements, he was also forced to regard the agreements themselves as extraneous to law (a point which was emphasized, in part, by the fact of calling them ‘agreements’ rather than ‘treaties’).189 For the most part, members of the Commission were satisfied with Waldock's approach to devolution agreements and concurred in his view that they were essentially res inter alios acta, incapable of creating a legal nexus between the successor State and third parties.190 Several members of the Commission did stress, however, that such agreements constituted an ‘expedient and effective’ means by which new States might conclude the treaties indispensable for their everyday life, and that their use should not be discouraged.191
(p.128) b) Unilateral Declarations
As with the case of devolution agreements, Waldock was to face several difficulties in the application of the law of treaties to unilateral declarations. The practice of using unilateral declarations as a means of dealing with the problem of succession to treaties had begun in 1961 following Tanganyika's rejection of the United Kingdom's offer to enter into a devolution agreement by exchange of letters.192 Fearing that it would be bound by the agreements specified, yet unable to enforce them as against third parties, Tanganyika resolved instead to write to the UN Secretary-General declaring that it would continue to apply bilateral treaties on its territory, on the basis of reciprocity for a period of two years, and would examine each multilateral agreement in order to decide which steps to take ‘whether by way of confirmation of termination, confirmation of succession or accession’.193 In the following years, similar declarations were made by a number of other newly decolonized States (including Botswana, Lesotho, Nauru, Uganda, Kenya, Malawi, Zambia, Guyana, Barbados, Mauritius, Swaziland, Rwanda, and Burundi)194 the terms of which subtly varied depending upon whether the presumption was to continue the treaty relations in question on a provisional basis195 or to decide within a particular period as to whether or not the treaties had survived.196 A number of others (Cameroon, Congo (Brazzaville), Cote d'Ivoire, Niger, and Malagasy Republic) merely communicated their desire to continue existing agreements and conventions.
The purpose of such declarations appears to have varied. In one sense they appeared to be an expedient by which new States sought to maintain the benefits to which they may have been entitled under prior agreements (such as access to cocoa markets under the terms of existing Cocoa agreements). In another sense, however, they also represented a right of freedom of action in relation to existing agreements whose content and significance were yet to be determined.197 In the latter sense, of course, they were to provide new States with the opportunity to examine existing treaty commitments and understand their implications as regards future policy, without necessarily committing themselves to such agreements on a permanent basis. As, in some cases, new states were not always in possession of information as to which treaties had formerly been applied to their territory, this was clearly a prudential step.
(p.129) The particular problem Waldock faced with this practice was that it ‘did not fall neatly into any of the established treaty procedures’.198 To begin with, the declarations themselves, albeit addressed to members of the international community as a whole, were not communicated to the UN Secretary-General as Depositary, nor were they communicated directly to other depositaries of relevant agreements. Rather, they appeared to have been merely disseminated to the UN Secretary-General as a means of making public their declared position. The declarations, furthermore, envisaged the application of treaties on a provisional basis – the possibility of which found no formal recognition in the Vienna Convention on the Law of Treaties.199 Observing that, as unilateral acts, such declarations could not possibly give rise to binding treaty relations between the successor State and other third States, Waldock concluded that they must be treated merely as furnishing: ‘the basis for a collateral agreement in simplified form between the new State and the individual parties to its predecessor's treaties for the provisional application of the treaties after independence’.200
He explained that, in his view, the declarations effectively invited an agreement for the provisional application of the treaties in question pending the determination as to whether each individual treaty was to be considered in force with respect to the new State either by virtue of succession or by way of novation.201 Since the legal effect of those declarations would be dependent upon their express or tacit acceptance on the part of other States, and since they generally envisaged only the provisional application of treaty obligations, they fell some way short of providing for the definitive participation of successor States in the treaties concerned.202 That was a point to be determined by the general rules that Waldock was in the process of drawing up. Waldock did, nevertheless, propose the inclusion of certain clauses to govern the provisional application of treaties pending either their entry into force or their termination within the period specified.203
As with his position on devolution agreements, Waldock approached the question of unilateral declarations with the idea in mind that newly emergent States (p.130) essentially stood outside the existing array of treaty relations formerly applicable to their territory. Neither could they be assumed to be parties to those relations in virtue of the mere fact that the treaties were formerly applicable to that territory, nor could third States be regarded as either acquiring rights or obligations as a consequence of such acts. There was, as Waldock continued to insist, no ‘legal nexus’ between the successor State and other States parties to treaties that formerly applied to its territory. Whereas the thinking behind his conclusions on devolution agreements appears to have been influenced – indirectly or otherwise – by the possible taint of inequality, this of course did not go to the same extent with respect to unilateral declarations.204 But having effectively set out the proposition that successor States could not insinuate themselves in the treaty relations between the metropolitan State and third States by agreement with the former, so also it would seem to follow that no more could be achieved by unilateral act.
To the extent that Waldock's approach to this question was informed by the idea that successor States were effectively ‘third parties’ in relation to existing treaties that extended to the territory in question,205 it was to work on two assumptions both of which had been disputed in recent years. The first was that, for the most part at least, the treaties in question were ‘personal’ rather than ‘territorial’ in character (ie that they were contingent upon the ‘identity’ of the participants) – a point which Jenks, amongst others, had disputed in case of the emergent category of law-making treaties.206 The second was that the legal ‘person’ to whom those obligations attached after independence was radically different from that which existed prior to that moment – a point, again, which those such as O'Connell had suggested might be erroneous in case of many Commonwealth countries.207 But Waldock's position was not, in fact, quite so clear cut. Insofar as he had drafted a series of clauses relating to the continuance of treaties on a provisional basis that would be effective through the tacit acceptance, by other parties to those agreements, he had implicitly accepted that continuation of the status quo was an option.208 As Reuter pointed out in the subsequent discussion, however, Waldock's general premise seemed to allow no scope for the ‘application of the original treaty’ provisional or otherwise. Rather, and in his view, it was a case of an entirely new ‘collateral’ agreement coming into effect by way of (p.131) offer and acceptance.209 Waldock's simultaneous denial of any real connection between new States and treaty relations pre-existing their independence, and his insistence that those agreements could nevertheless be ‘continued’ albeit by way of a ‘collateral’ arrangement, was thus in some respects inconsistent. Crucially, however, it was to give succour both to those who believed that new States should be entitled to exercise their sovereign rights in choosing which agreements might become binding on them,210 and those who believed in the principle of the ‘stability of international treaty relations’ and saw in this provision an important means by which treaty continuity might be maintained.211
6. New States
By far the most significant aspect of Waldock's work on succession in respect of treaties was undertaken in his Third report in which he drafted a series of articles relating to the position of ‘new States’.212 He had, in some respects, already set the scene for his work on this topic in his treatment of devolution agreements and unilateral declarations the main practice in relation to which was drawn from the period of decolonization. But it was evident that in case of each of those phenomena, Waldock had determined to render his conclusions subordinate to the more general rules governing succession to treaties. And it was the elaboration of general rules on succession in respect of new States that would assume greatest importance.
In his introduction to his Third Report, Waldock had indicated that he intended to use the term ‘new State’ as a ‘term of art’213 which would describe ‘a succession where a territory that previously formed part of an existing State has become an independent State’.214 Whilst this appeared remarkably broad,215 Waldock was to suggest that he understood it in more narrow terms:
Three elements of this stand out. Firstly, and in line with the views adopted by many other scholars working in the field, Waldock clearly took the view that the (p.132) unification, or ‘federation’ of States was to be regarded as a separate category albeit the case that unification in such contexts could plausibly be understood as giving rise to the emergence of an entirely new State. Secondly, Waldock excluded from the term the position of Protected States, Mandates, and Trusteeships. His point, here, was not that these categories of dependent territories were necessarily to be treated in a different way, but that it was convenient to identify the basic principles applicable to new States in their ‘purest form before considering the possible effect of special factors in particular cases of succession’.217 He was perfectly aware, given the discussion in the Sub-committee, that the position of ‘semi-sovereign’ states may well be slightly different given the ICJ's stance in relation to the effects of the protectorate established in relation to Morocco. But that was a matter he left until his final, fifth report.218 Finally, and most significantly, Waldock made no differentiation in his definition between States emerging from a context of colonialism, and any other State seceding from the metropolitan territory (that was a distinction to emerge at a very late stage in proceedings).219 He appeared, in other words, to understand the category purely in terms of the nature of the process rather than in terms of the putative effect of self-determination upon the rules of succession.220 Had he adopted the latter strategy, he might have inclined not only to distinguish, in line with UN practice, between decolonization and other cases of secessionary independence, but also to address, at the same time, the possible alternative modes of exercising the right of self-determination (by free association or integration with another State).221 As we saw above, however, this was an approach to the topic that Waldock had emphasized from the outset.222
It thus covers a State formed either through the secession of part of the metropolitan territory of an existing State or through the secession or emergence to independence of a colony; but it excludes a State formed by a union of States, by a federation of a State with an existing State, by the termination of the protection of a protected State or by the emergence of a trusteeship or mandated territory to independence.216
i) Treaties providing for Succession
The first draft article set out in Waldock's report governed the position in respect of treaties which specifically provided for the participation of ‘new States’.223 In one sense, of course, most multilateral agreements provide for means by which non-States parties may become participants in the treaty regime in question, but Waldock's concern was to deal with the position in respect of those agreements that contained clauses purporting to regulate in advance the application of the treaty on occurrence of succession. There were, of course, not many agreements that purported to do so,224 and Waldock relied, in that regard, upon the terms (p.133) of Article XXVI (5)(c) of the General Agreement on Tariffs and Trade of 1947, Article XXII (6) of the Second International Tin Agreement of 1960, Article 67 (4) of the International Coffee Agreement of 1962, and Article 66 (2) of the International Sugar Agreement of 1968.225
The terms of each of these agreements varied insofar as they dealt with the process by which dependent territories might become contracting parties.226 In case of Article XXVI, paragraph 5(c) of GATT, a customs territory acquiring full autonomy in the conduct of its external commercial relations would ‘upon sponsorship through a declaration by the responsible contracting party’ be deemed a ‘contracting party’.227 By contrast, the Second International Tin Agreement envisaged that territories participating in the agreement would automatically become ‘contracting governments’ on independence,228 and the 1962 Coffee Agreement provided for a procedure by which such territories could become contracting parties by notification within a period of 90 days.229 As Waldock was to note, only in relation to the GATT had any newly independent States become contracting parties by means of the provision in question, and in that case practice had developed in quite a complicated way. Some States (Israel, Tunisia, and Cambodia) had deliberately chosen not to avail themselves of the clause and became contracting parties rather by way of accession230 and others had decided (p.134) simply not to become parties at all. A third category had become parties merely through the sponsoring of their participation by the predecessor State,231 and a fourth category had undergone a period of provisional de facto application, prior to choosing to become a party.232
In light of this practice, Waldock identified two basic rules. The first was that where an agreement provided for the participation of new States by some means (whether that be ratification, accession, signature, or mere notification) fulfilment of those specified conditions would be sufficient in order for the State to become a party to the agreement. This, in itself, was an obvious implication of the existing terms of the Vienna Convention on the Law of Treaties and said very little, in itself, about the institution of succession.233 The second, and somewhat more significant rule, however, was that in cases where a treaty purported to lay down that a successor State would automatically become party to the agreement on its independence (ie that there was not merely a right of participation, but an obligation) then the terms of Article 35 of the Vienna Convention would become relevant such that any participation would be dependent upon the written consent of the State concerned.234 It was thus not possible, as far as Waldock was concerned, for a successor State to be automatically regarded as party to an international agreement in virtue only of the terms of the agreement itself. Once again, he appears to have taken the view that successor States were third parties in relation to any such existing treaty arrangements.
ii) A Right of Participation
Waldock's approach to this particular question was indicative of his more general approach to treaty succession in relation to new States. In drafting the subsequent provisions (draft Articles 6 and 7), Waldock was to begin by distinguishing two aspects of the problem of succession: one being the question whether a new State is under an obligation to continue to apply treaties to its territory after independence; the other being the question whether it has a right to consider itself as (p.135) a party to such agreements. For Waldock, too many commentators had failed to distinguish these two elements of the equation:
This distinction between rights and obligations of participation had been initially mooted by Waldock in his earlier reports but it was only in the context of draft Articles 6 and 7 that it was fully explained. In essence, draft Articles 6 and 7 (to become Articles 16 and 17 of the Vienna Convention) laid down the proposition that new States would not be bound by treaties simply by reason of the fact that the treaty was in force in respect of its territory prior to independence, but they would enjoy a right to become party to multilateral agreements by means of notification of succession. This envisaged ‘right of participation’ existed independently of the faculty of participation that may be laid down in the final clauses of a multilateral agreement, and would not be subject to the approval or consent of other contracting parties.
If a successor State were to be considered as automatically bound by the treaty obligations of its predecessor, reciprocity would, it is true, require that it should also be entitled to invoke the rights contained in the treaties. And, similarly, if a successor State were to possess and to assert a right to be considered as a party to its predecessor's treaties, reciprocity would require that it should at the same time be subject to the obligations contained in them. But reciprocity does not demand that, if a State should be entitled to consider itself a party to a treaty, it must equally be bound to do so.235
In order to establish this position, Waldock initially had to address the question whether a newly independent State could be regarded as being ‘under a legal obligation to consider itself bound by its predecessor's treaties’.236 Only if the answer to this was in the negative would his distinction between rights and obligations stand up. Waldock was confronted, here, by a new stream of scholarship from the likes of O'Connell,237 La Forest,238 Jenks,239 and the ILA,240 all of whom expressed a clear preference for a rule of treaty continuity in case of succession (at least in respect of multilateral agreements). For such authors, the developing practice of States in the middle of the 20th century, whilst not entirely consistent and certainly still emerging, underscored in a general sense the desirability of avoiding a ‘legal vacuum’ in the wake of territorial change. As Jenks was to put the case, for all the ‘political and psychological’ factors involved in the gaining of independence, it was wrong to consider obligations of multipartite legislative instruments as bearing the badge of continuing servitude. Rather, (p.136) they were, in his view, ‘a necessary part of full cooperation in the international community and participation in them must therefore be regarded as one of the hallmarks of emancipation’.241 It was not, he concluded, a case of ‘perpetuating the dead hand of the past, but of avoiding a legal vacuum’.242
Without engaging directly with such work, Waldock's starting point was to establish what he saw to be the ‘traditional view’. This he took to be that espoused by McNair in the following terms:
McNair, for his part, had based this conclusion upon practice following the emergence to independence of the United States, the Spanish American Republics, Belgium, Poland, Czechoslovakia, Finland, the Baltic States, Panama, and Pakistan, and had clearly not engaged in consideration of the practice arising from decolonization. Waldock was to claim, however, that McNair's position was actually reinforced in significant part by the practice of States and depositaries since 1945244 and was also supported by the ‘majority of writers, at any rate until quite lately’.245 He made no direct reference in his reports to the work of O'Connell or the ILA246 (in some senses his disagreement with their analysis (p.137) of contemporary practice had already been set down in his treatment of unilateral declarations and devolution agreements) but he was to conclude that whilst ‘continuity’ was a ‘desirable’ and ‘progressive policy’ there was scant evidence in practice of any legal presumption in favour of continuity and, in any case, ‘the principle of self-determination militated against such a presumption’.247
In spite of some evidence to the contrary, emanating mainly from diplomatic rather than legal sources, it is submitted that the general principle is that newly established States which do not result from a political dismemberment and cannot fairly be said to involve political continuity with any predecessor, start with a clean slate in the matter of treaty obligations, save in so far as obligations may be accepted by them in return for the grant of recognition to them or for other reasons, and except as regards the purely local or ‘real’ obligations of the State formerly exercising sovereignty over the territory of the new State.243
The differences between Waldock's and O'Connell's approach to this issue is quite stark. Whereas O'Connell had identified the inconsistency of State practice in relation to treaty succession as a reason for the advancement of a policy of legal continuity (policy being a supplementary category), Waldock had not found anything in practice that seriously contradicted the ‘traditional view’. In this regard, of course, Waldock was always on more solid ground insofar as any instance in which a newly independent State agreed to continue the treaties of the predecessor State could be interpreted just as easily as an act of consent as one driven by a belief that such continuity was obligatory. But the disagreement, of course, went beyond the practice itself and extended also to the question of policy. Much as O'Connell had insisted that there was a range of both ethical and prudential reasons for a commitment to treaty continuity, Waldock could always fall back on the principle of self-determination which, in his view, was largely supportive of the clean slate.
Waldock's concern, however, was not to embrace McNair's ‘tradition’ without qualification. Having established the inadmissibility of any notion of automatic succession, he could now safely distance himself from advocates of the ‘clean slate’ by reference to his distinction between rights and obligations:
Even if many were keen to maintain that new States were not bound to honour their predecessor's treaty commitments, this did not, as far as Waldock was concerned, lead to the conclusion that those States were thereby precluded from (p.138) doing so. The position he was to assume, in other words, clearly veered towards the idea of the clean slate, but in reality sat somewhere between that idea and the opposed notion of treaty continuity. Although clearly not a ‘compromise’ solution, it was one that perfectly befitted the analytical exactitude of its author.
The metaphor of the clean slate is a vivid and convenient way of expressing the basic concept that a new State begins its international life freed from any obligation to continue in force treaties previously applicable with respect to its territory simply by reason of that fact. But even when that basic concept is accepted, the metaphor appears in the light of the existing State practice to be at once too broad and too categoric. It is too broad in that it suggests that, so far as concerns the new State, the prior treaties are wholly expunged and are without any relevance to its territory. The very fact that prior treaties are often continued or renewed indicates that the ‘clean slate’ metaphor does not express the whole truth. The metaphor is too categoric in that it does not make clear whether it means only that a new State is not bound to recognize any of its predecessor's treaties as applicable in its relations with other States, or whether it means also that a new State is equally not entitled to claim any right to be or become a party to any of its predecessor's treaties.248
The really ‘new’ idea that Waldock had to establish was that new States enjoyed a right to become parties to existing treaty arrangements ‘independently of the consent of the other parties to the treaty’ and independently of the terms of admission laid down in the treaty concerned.249 This was clearly problematic, not least because up to this point Waldock had largely been running through the consequences of his insight that new States were (or in a position analogous to) third parties to any existing treaty relations. If they were to be so regarded, and absent any intent to confer upon them special privileges, it would be just as difficult to establish that new States enjoyed a right of participation as it would to suggest that they were automatically bound by existing agreements. Before developing his argument in this direction, however, Waldock felt compelled to make an initial distinction – whereas, in his view, one could sustain the idea of a right of participation in multilateral agreements, that was not the case in respect of bilateral agreements.250 Quite why this distinction existed, Waldock did not fully explain other than to remark that the practice of multilateral treaty depositaries appeared to allow new States to participate in treaties by means of notification and irrespective of the views of other parties.251 In case of the UN Secretary-General, for example, Waldock pointed out that:
The same held good in respect of other depositaries such as the practice of the Swiss Government, the Swiss Federal Council, and the United States.253
whenever a former dependency of a party to multilateral treaties of which the Secretary-General is the depositary emerges as an independent State, the Secretary-General addresses to it a letter inviting it to confirm whether it considers itself to be bound by the treaties in question. This letter is sent in all cases… . The Secretary-General does not consult the other parties or await their reactions when he notifies them of any affirmative replies received from the new State. He appears, therefore, to act upon the assumption that a new State has the right, if it chooses, to notify the depositary of its continued participation in (p.139) any general multilateral treaty which was applicable in respect of its territory prior to the succession.252
Turning to the rationale for this practice, Waldock considered, but ultimately rejected, the idea that it depended upon the prior application of the treaty in respect of the territory concerned.254 The determinant was not, in his view, whether the agreement had been given force in the municipal law of the territory, but rather whether or not it was in force internationally in respect of that territory. The right of participation, in other words, was based upon the idea that the predecessor State, through its various actions in respect of treaties, had created a ‘legal nexus of a certain degree between the treaty and the territory’.255 The existence of this ‘legal nexus’ created between the treaty and the territory by the acts of the predecessor State, was to have certain implications that went beyond the right of new States to participate in multilateral treaties irrespective as to whether provision was made for such participation in the final clauses of the agreement in question.256 It would also mean, as far as Waldock was concerned, that new States would be capable of asserting their right of participation in multilateral agreements not yet in force,257 and competent to maintain or reject reservations entered by the predecessor State.258 It was these incidental considerations that largely differentiated the process of succession from that of accession to multilateral agreements.259
Waldock was to propose three exceptions to this general principle, the effect of which was to inject a sense of flexibility into its operation and which thereby deflected the concerns of some of its more persistent critics. The first was where the admission of the new State was incompatible with the ‘object and purpose’ of the treaty; the second where the treaty was a constituent instrument of an international organization and subject to an admissions procedure; and the third (p.140) where the ‘limited number of negotiating States and the object and purpose of the treaty’ dictated that the participation of an additional State would require the consent of all parties.260 Not all members of the Commission were happy with these exceptions,261 but for the most part they seemed to recognize the importance of not trying to articulate a rule that was excessively rigid.
In the subsequent discussion within the ILC, a good many of its members endorsed Waldock's approach, particularly as regards his rejection of the ILA's presumption of continuity,262 and in his dismissal of Jenks's thesis concerning ‘law making treaties’.263 Some applauded his formula as an expression of the principle of self-determination,264 or the notion of ‘free will’;265 others for its ‘realism’ and fidelity to State practice.266 Others still were impressed by Waldock's apparent ‘moderation’ in advancing a solution that stood somewhere between the two extremes of continuity and self-determination.267 There were, of course, voices of doubt particularly as regards the apparent lack of reciprocity as far as third States were concerned,268 and the extent to which the rule seemed to establish a right of participation going beyond the terms of the treaty itself.269 There was also concern as to how far this principle might also extend to ‘new’ States formed by way of fusion,270 but these were very much contested views.271
As this suggests, in all of its discussions concerning the issue, the Commission remained largely divided as to whether the rule was a by-product of the principle of self-determination (and hence limited, perhaps, to the experience of (p.141) decolonization) or rather a principle that was concerned with the position of all new States irrespective of their circumstances prior to independence.272 Some members of the Commission emphasized the importance of the newly adopted Declaration on Friendly Relations the terms of which had significantly provided that under the Charter the territory of any colony or non-self-governing territory had ‘a status separate and distinct from the territory of the State administering it’.273 Others emphasized, by contrast, the similarities between decolonization and other cases in which new States had come into being. In some respects the impressive achievement of Waldock's work on this issue was the way in which he managed to give the impression of adhering to the principle of self-determination without expressly doing so. He thus managed to satisfy those who were keen to maximize the freedom of movement of States emerging from colonialism at the same time as mollifying those who regarded the implications of self-determination (with its rigidly consensualist attitude towards sovereignty) as in some senses antipathetic to international law or the interests of the international community. But, as Waldock probably would have recognized in any case, the choice was not between self-determination and something else, but of working out what, precisely, self-determination might mean in the context of succession. Many members of the Commission were of the view that self-determination implied a complete freedom of choice in respect to the treaty actions of the former colonial masters. Many were equally clear, however, that for all the benefits that might be gained from freeing themselves from inherited commitments, new States might also positively benefit from being able to rely upon an existing network of agreements rather than have to conclude all afresh. Denying the possibility of succession in the name of self-determination was not necessarily an emancipatory initiative.
iii) The Legal Nexus
The real point of difficulty, however, concerned Waldock's use of the idea of the ‘legal nexus’ as a way of justifying the existence of a right of participation. Several members of the Commission were left unpersuaded by his argument on this point. Ushakov, for example, suggested that it ‘seemed an unsatisfactory solution to make the exercise of the rights of the successor State depend on an act of will (p.142) based on reasons which might become obsolete after a change of sovereignty’.274 Castañeda was similarly unconvinced:
The central problem with Waldock's notion of the ‘legal nexus’ was that it appeared to have persuasive content only in so far as it concerned the actual application of treaties in former colonial territory.276 This was, of course, the position adopted by Zemanek amongst others, from which Waldock had explicitly distanced himself. But if the ‘legal nexus’ was not to be found in the local application of an international agreement, how otherwise might it be established? If it was created through the mere ‘extension’ of a treaty to the territory concerned without any local application, was that really sufficient to establish a ‘legal nexus’ enabling new States to participate in international agreements absent the consent of other parties? If, by contrast, it was nothing to do with the ‘territorial’ application of a treaty, then might it not be the case that a new State would enjoy a similar right of participation in any open multilateral agreement?277 But at that point, the ILC would clearly have moved far away from understanding the issue as one of succession per se.
Every treaty, of course, applied to a specific territory but, except for treaties establishing rights in rem, there was no special connexion between a treaty and a territory.275
Apart from the opaque nature of his reference to the ‘legal nexus’, Waldock was also faced with an apparent internal inconsistency in his approach to the issue. In dealing with unilateral declarations, Waldock had insisted upon the lack of a ‘legal nexus’ between the successor State and other States parties to agreements formerly applicable to its territory. Unilateral declarations, he had declared, could not be effective in inserting the new State into treaty relations with third parties without the latter's consent. But of course, if that were true, would the position be any different in respect of a notification of succession?278 Would it not always remain open for third States to object that their consent was needed for the participation of another State in an agreement, particularly when it meant sidestepping the prescribed procedures for participation laid down in the agreement itself?279 That this may only infrequently have occurred in practice, and that existing States parties might have been generally enthusiastic about ensuring continuity of treaty relationships (and hence tolerant of participation through notification of succession) did not really avoid the issue. As it stood, Waldock's idea of the ‘legal nexus’ seemed to be something of a moveable feast.
The sheer mutability of the idea of the ‘legal nexus’ was to become particularly apparent when the ILC dealt with the question of bilateral treaties. During (p.143) discussions within the Commission, it was very clear that members were initially sharply divided upon the question whether a right of participation existed in respect of bilateral as well as multilateral agreements. Some had insisted that no proper distinction could be drawn between multilateral and bilateral agreements,280 others had argued that very real differences existed.281 Waldock, himself, had made clear that as far as he was concerned the rule permitting participation by notification only applied in case of multilateral agreements,282 and in his subsequent Fourth Report, he proposed the adoption of a distinct set of arrangements for bilateral agreements. According to draft Article 13 (later to become, with little change, Article 24 of the Vienna Convention) a bilateral treaty would be considered in force between the new State and the other State party only when they ‘expressly so agree’, or when such agreement may be inferred from their conduct. This emphasis upon mutual consent, of course, was to deny the successor State the right to determine unilaterally whether bilateral agreements should continue in force, and was to suggest that their survival would ultimately be brought about by a process most closely analogous to ‘novation’.283
Waldock offered two initial reasons for differentiating between bilateral and multilateral treaties in this respect. The first was that the ‘personal equation’ (the identity of the other contracting party) played a far more significant role in bilateral treaty relations than it did in multilateral treaties. Since the ‘very object’ of bilateral treaties was to regulate mutual rights and obligations by reference to their own ‘particular relations and interests’, it was not possible to ‘infer from a State's previous acceptance of a bilateral treaty as applicable in respect of a territory its willingness to do so after a succession in relation to a wholly new sovereign of the territory’.284 Secondly, it was apparent to Waldock that the effect of succession to a bilateral agreement was of a more limited nature. It could only give rise to the establishment of new treaty relations between the (p.144) successor and the other contracting party, and would not extend for example to relations between the successor and the predecessor States285 (in contrast to the position in respect of multilateral agreements).286
Waldock was very aware that, in proposing this solution, he was to depart once again from the position emerging in contemporary scholarship. The ILA Committee had undertaken quite a detailed survey of different kinds of agreements and had observed that a considerable degree of continuity was evident in relation to a range of bilateral treaties287 including air transport agreements, extradition treaties, technical assistance agreements, commercial agreements, boundary or territorial agreements, and to a lesser extent with double taxation agreements.288 Similar findings were evident in the Secretariat reports on succession in respect of extradition agreements,289 air transport and trade agreements,290 and in its Materials on Succession of States.291 In contemplation of this practice, however, Waldock was to observe that the ‘prime cause of the frequency with which some measure of continuity is given to such treaties’ seemed to be the ‘practical advantage of continuity to the interested States in present conditions’.292 But in that respect he was to go on to conclude that ‘it may be doubted whether the practice justifies the conclusion that continuity derives from a customary legal rule rather than the will of the States concerned’.293
The main evidence produced by Waldock to sustain this conclusion was the fact that continuity of bilateral agreements had largely been achieved by means of an exchange of Notes or Letters, the very existence of which seemed to indicate that the continuance of bilateral treaties was ‘a matter not of right but of agreement’.294 In other cases – instanced in particular by the practice of the US, UK, and Canada – emphasis appeared to have been placed upon the need for mutual agreement (in the form of express or tacit consent) in arriving at a (p.145) decision as to whether a bilateral treaty has survived, and hence a solution based upon the idea of ‘contracting in’ rather than ‘contracting out’ appeared to be the most appropriate.295
There was something clearly disingenuous about Waldock's approach to this issue. To begin with, he evidently did not seek to dispute the practice of continuity. He might, for example, have made reference to the largely negative practice of Algeria, Israel, and Upper Volta, amongst others, or the objections of Thailand to Cambodia's claims in the Temple case.296 He might also have denied any general assertion of continuity by reference to the more uncertain practice in relation to categories of agreement such as treaties of alliance, military base agreements, or agreements providing for arbitration or judicial settlement.297 That he did not pursue any of these avenues, but instead sought to attack the presumption of continuity on the basis that however consistent the practice, actual or tacit consent was necessary, only put in question whether there might ever exist sufficient evidence to persuade him otherwise.
One of the authors to which Waldock referred, and who had made a strong case for the continuity of certain categories of bilateral treaties in case of secession was Keith.298 Keith's argument was that a range of both legal and ‘non-legal’ factors pointed towards the existence of a rule of succession. As regards the non-legal factors, these included the fact that, in many cases, the agreements will have been concluded by the ‘local government’ of the nascent State rather than the metropolitan government (he cited, for example, the Defence Areas Agreement between the government of the Federation of the West Indies and the United States of 1961).299 Many furthermore will have been implemented by domestic legislation which would continue after independence, and the attainment of independence itself would frequently be of little significance for the continued application of the agreement in question.300 As regards the ‘legal factors’, Keith (p.146) merely observed that the practice of continuing bilateral agreements was both consistent and indicative of a ‘sense of obligation’:
for one thing, many of the actions recorded above were made in ignorance of the others. Much of the practice consists of a large number of separate, independent acts of government. And, as already noted, States have not, on the whole, attempted to reserve their position, to say that they are merely conceding a privilege. For these reasons it is submitted that the two requirements of consistent practice and opinio iuris are met and that new States are to remain bound by certain categories of bilateral treaties.301
Waldock, of course, was not just one, but two steps away from this position. Not only did he deny the continuity thesis (a position, as shown above, premised upon the legal irrelevance of devolution agreements and unilateral declarations of continuity), but he also denied the possibility that a new State might, by its own actions alone, ensure the continuity of bilateral agreements formerly extended to its territory. His rejection of the latter position, however, was determined by an approach to State practice which foreclosed the possibility of a customary rule of continuity at the outset.
Interestingly enough, both Waldock and Keith relied upon the principle of self-determination as supporting arguments for their respective positions. Waldock was clear in the view that his solution seemed to be ‘more in harmony with the principle of self-determination’ than that which insisted upon a presumption of continuity. The principle of self-determination warranted the conclusion that ‘the conduct of the particular States in relation to the particular treaty should be the basis of the general rule for bilateral treaties’, and should displace any general presumption built upon the admittedly ‘considerable’ measure of continuity found in State practice.302 Keith, by contrast, understood self-determination as having quite different implications. First of all, the principle of self-determination appeared to stress the identity of the dependent territories ‘as separate entities of which international law takes cognizance before independence’.303 If colonial territories, as the UN Declaration on Friendly Relations seemed to suggest, enjoyed a ‘status separate and distinct from the territory of the State administering it’, then there was no reason to treat as legally negligible the treaty actions of the government of that territory prior to independence. Further to this, Keith saw within the principle of self-determination the idea that the acquisition of independence was a ‘process’ rather than a sudden occurrence, and took the form of a progressive legal devolution of authority, rather than a radical ‘break from the past’.304 Any postulate of non-continuity, he implied, was countermanded by the fact that prior to independence, local governments were already enjoying a certain measure of self-determination. Keith's position, in this respect, neatly prefaced some (p.147) of the subsequent difficulties the ILC was to have in its approach to the various categories of ‘semi-sovereign’ entities.
7. Semi-Sovereignty: Mandates, Trusteeships and Protectorates
As noted above, in discussing the relationship between State and governmental succession, the ILC's Sub-committee had decided to defer final judgment on the issue for the reason that in case of the granting of independence to territories under Mandates, Trusteeships, and Treaties of Protection, it was not entirely clear as to whether they would constitute cases of State succession in its strict sense, or rather some other form of succession. The matter was to arise again in the Commission's discussion of Waldock's draft article on the ‘use of terms’ in his first report.305 There, Waldock had deliberately avoided any use of the word ‘sovereignty’ in his definition of ‘succession’, defining it rather as ‘the replacement of one State by another … in the possession of competence to conclude treaties with respect to a given territory’ [emphasis added].306 This was applauded by certain members of the Commission who emphasized that the question of the passing of treaty competence encapsulated situations that would not necessarily be understood in terms of a change of sovereignty307 – particularly the case, as Waldock made clear, of the termination of Mandates, Trusteeships, and Treaties of Protection. On the other hand, however, there were those who regarded the question of sovereignty to be a key element in any case of succession. Rosenne, for example, was to point out that dependent territories occasionally enjoyed a competence to conclude treaties, and that the devolution of that ‘competence’ to them by a metropolitan State could hardly be regarded as an instance of succession.308 There was also concern that omission of the word ‘sovereignty’ would have the potential of bringing within the frame of the draft articles, situations of military occupation. On this latter point, Waldock's immediate response was to suggest that issues raised in virtue of military occupation could be dealt with by a separate provision ‘reserving’ it from the draft, but that decision, of course, did not entirely dispose of the issue posed by the category of ‘semi-sovereign’ States.
As noted above, in his Third Report of 1970, Waldock had begun drafting substantive articles relating to the position of ‘new States’, which were defined in a way that did not include States formed through union or federation, or those formed ‘by the termination of the protection of a protected State or by (p.148) the emergence of a trusteeship or mandated territory to independence’.309 The reason for this, as far as Waldock was concerned, was to allow separate consideration of the latter issue at a later date to determine whether or not separate provisions were required (or whether, by contrast, they might otherwise be treated in the same way as ‘new States’).310 He finally returned to the issue in his Fifth Report in 1972, albeit with some hesitancy. It was evident, as he made clear, that such cases were largely exceptional given the ‘progressive disappearance of dependent territories and of the modern law regarding self-determination’.311 But he was also to note that the process of emancipation ‘was not yet absolutely complete’ and that, in any case, ‘it could be relevant historically to determine the law in existence at the moment of independence in order to ascertain whether at that time a treaty was in force’.312 Yet, having examined the practice, he was ultimately to conclude that the ‘special characteristics’ of this category of case ‘do not appear to call for different rules’ except as regards one or two minor points.313
As regards the position of Protected States, Waldock began by sharply distinguishing between two categories of case – the case of the ‘protected State’, and that of the ‘colonial protectorate’. Protected States differed from colonial protectorates insofar as they ‘retained in some measure a separate international personality during the period of their dependency upon another State’.314 He admitted that this distinction was a difficult one to draw in many cases, and the point at which protection gave way to annexation was frequently one of ‘nice appreciation’.315 These doubts aside, he was clear in the view that the category of protected States was a distinct one, and that the defining point seemed to be found in a recognition of its continued personality as an independent State, even though the authority to conduct external relations might have been invested in another State. That, of course, was a position that had been established by the International Court of Justice in the Case concerning rights of nationals of the United States of America in Morocco.316 There, the ICJ had declared that, despite (p.149) the terms of the Treaty of Fez establishing a French Protectorate over Morocco, the latter ‘remained a sovereign State’ and had merely undertaken a contractual arrangement by which France ‘undertook to exercise certain sovereign powers in the name and on behalf of Morocco’.317 Although Waldock was of the view that calling Morocco a ‘sovereign State’ in such circumstances was rather too strong,318 he was nevertheless happy to accept that Morocco ‘retained its personality as a State in international law’.319
From this initial, albeit hesitant, presumption, Waldock then went on to address the question whether this ‘special status’ had any effect as regards the rules regarding succession. Two questions stood out: first whether the treaties concluded by the protected State prior to its entry into protection would continue in force, notwithstanding its change in status? And secondly whether treaties concluded by the protecting power on behalf of the protected State would continue to bind the latter after independence? The answer to the first question seemed to flow logically from the fact of the continued personality of the protected State. Thus, in the US Nationals in Morocco case, the Court had concluded, in virtue of the fact that Morocco remained a sovereign State that the protecting power (France): ‘is bound not only by the provisions of the Treaty of Fez, but also by all treaty obligations to which Morocco had been subject before the Protectorate and which have not since been terminated or suspended by arrangement with the interested States’.320 The United States, as a consequence, was entitled to rely upon the provisions of the Treaty with Morocco of 1836 for purposes of exercising consular jurisdiction in all disputes between its citizens or protégés.
In respect of the second question concerning treaties concluded by the protecting power, the answer appeared to be a little more difficult. The ‘logic’ of this attitude towards the continued sovereignty of the protected State might suggest that if treaties were concluded on its behalf, or in its name, they should continue to bind it after independence (so far as circumstances permit), but if treaties were merely ‘extended’ to that territory by the protecting power under some ‘colonial clause’, no such continuity could be presumed. Whilst there was some support for this conclusion in academic writings321 and in practice322 Waldock was sharp in identifying inconsistencies and discrepancies. Whereas (p.150) Morocco323 and Tonga324 appeared to have taken the view that they were obliged to take over treaties concluded on their behalf by former protecting powers (France and the UK respectively) this was evidently not the case in respect of Tunisia, Laos, Vietnam, and Kuwait.325 The conclusion also seemed to rest, in Waldock's eyes, upon an excessively ‘formal’ reading of the distinction between treaties concluded on behalf of, or in the name of, a protected State and those merely extended to it: was the difference in method really intended to have significance as regards their potential heritability?326 Waldock doubted this and, as a consequence, concluded that there were really no grounds for treating protected States any differently from former colonies as regards succession to treaties, except as regards the continuity of treaties concluded prior to entry into protection. Similar conclusions were drawn in respect of Mandates, Trusteeships, colonies, and associated States.327
The position adopted by Waldock, in this context, stands in contrast to that of Zemanek writing only a few years earlier. Zemanek, as suggested above, had taken the position that treaties concluded in the name of a protected State would continue in force after independence, but his reasons for concluding as much were somewhat novel. For Zemanek, the ICJ was simply wrong in its conclusion that the Treaty of Fez encroached only upon Morocco's competence in external relations. In reality French administration ‘reached down to all levels’: French courts enjoyed extensive jurisdiction both ratione personae and materiae, the ‘Commissaire Résident général’ enjoyed a right to veto any legal enactment, and the Sultan was rarely if at all consulted in the conclusion of treaties.328 This, however, was not such as to warrant the conclusion that the protectorate was illusory, but simply demonstrated that the question as to whether protectorates retained their status as sovereign States was ‘beside the point’.329 What was of importance for Zemanek was the question of imputability: which acts are, in law, attributable to the personality of Morocco as distinct from that of France? The answer to that question was to be determined simply by whether or not France had ‘validly’ acted in the name of Morocco, and the key to validity in that sense was to be found in the terms of the Treaty of Fez.330 The treaty, in other words, delineated (p.151) the terms under which the government of France could act as the government of Morocco for purposes of treating with other States internationally.
The reasoning and conclusions of Waldock and Zemanek on these points are quite curious when placed alongside one another. Whereas Zemanek initially appears to suggest that the formal terms of the Treaty of Fez were largely illusory insofar as they purported to guarantee the continued ‘sovereignty’ of Morocco, his conclusion is predicated solely upon the delimitation of responsibility under the terms of that agreement (which ultimately determined whether France or Morocco would be responsible for any acts in question). Waldock, for his part, begins with the assumption that a protected State will, depending upon the terms of the treaty, continue its personality, but then proceeds to avoid the conclusions that such an assumption would produce by suggesting that it would be unduly formalistic to suggest that the treaty could have the effect of delegating responsibility for external affairs to a third party. In some respects the conclusions of each would have been more consistent with the arguments of the other. Zemanek's anti-formalist position in respect of the Treaty of Fez might have led to the argument that Morocco, for all intents and purposes, ceased to exist as a subject of international law, and that any agreements concluded during that period would be subject to rules of succession as might apply to ‘new States’. This, in essence, was the position later adopted by Bedjaoui in the Commission's discussion of the issue.331 Waldock's argument, by contrast, to the effect that the Treaty of Fez did ensure the continued personality of Morocco, might have led to the more obvious conclusion that any agreements concluded in the name of that person would continue to bind it after the restrictions on its competence were lifted. This, in fact, was the position of Bilge who concluded that since there had been no replacement in sovereignty, there could be no succession.332 Both Waldock and Zemanek, however, were clearly of the view that the question of sovereignty did not take the matter very far: Zemanek avoided the problem by his focus upon the idea of ‘responsibility’, Waldock, by dint of his unswerving reliance upon what practice seemed to tell him.
Waldock's approach to Mandates and Trusteeships largely followed that relating to protected States. He began by observing that the nature of Mandates and Trusteeships was one in which the external relations of the territory concerned were temporarily administered by a sovereign State on behalf of the international (p.152) community and under a trust for the people of the territory. In neither case did the administering power enjoy sovereignty as such, but it did assume responsibility for the international relations of that territory.333 Having reviewed the various Mandate and Trusteeship agreements, Waldock drew two initial conclusions: first that treaties previously applied in respect of the territory were no longer generally considered applicable (with certain qualifications concerning what he called ‘dispositive treaties’);334 secondly, that although the mandatory power did not acquire sovereignty, it was vested with the authority both to extend its own treaties to the territory, and conclude new treaties on its behalf. The precise terms of this varied from one agreement to another (and differed as regards the different classes of Mandates)335 but it is apparent that, in practice, mandatory powers frequently merely extended their own agreements to the territory concerned.336
The central question, however, concerned the effect of independence upon the treaty obligations of the mandated and Trusteeship territories. Zemanek had concluded, in line with his position on protected States, that the question was one concerning the extent to which the acts in question were attributable to the ‘personality’ of the mandated territory337 (and hence a differentiation between treaties entered into on behalf of the territory, and those merely extended to that territory was significant). O'Connell was to take a similar line in his book of 1967: ‘It would seem clear that the doctrine of international representation in respect of mandated territories requires that on expiration of the Mandates the former mandated territories are bound by international engagements validly concluded by their Mandatories during their infancy.’338
Waldock, however, was less than convinced that this was actually evidenced in practice. On the one hand, it was perfectly clear that, at the time, the League of Nations and the various Mandatory powers believed that international agreements would continue to bind the mandated territories on their independence. The Council of the League of Nations had adopted a resolution as early as 1931 to the effect that one condition for the termination of a Mandate would be the ‘maintenance in force … of the international conventions, both general and (p.153) special, to which during the mandate, the mandatory power acceded on behalf of the mandated territory’.339 This was reproduced in the Declaration made by Iraq at the moment of her admission to the League, and a similar provision was to be found in the Treaty of Alliance with Britain of 1930.340 Although the League had effectively ceased to function at the time at which Jordan, Syria, and Lebanon became independent, Britain and France maintained the view that treaty obligations would continue in those cases as well.341 The UN General Assembly had also recommended, in its original partition plan for Palestine, that each State be bound by all international agreements ‘to which Palestine has become a party’.342
On the other hand, and despite the obvious concurrence of views on the part of Western powers, the practice of the territories themselves was far less clear. Israel, of course, took the view that it was an entirely new State and not a successor to the Mandate, and consistently maintained the position that international agreements concluded on behalf of the Mandate of Palestine were not legally effective in relation to it.343 In the cases of Jordan, Syria, and Lebanon, practice was extremely varied. Whereas Syria and Lebanon appeared to have acceded to the view that multilateral agreements for which the UN Secretary-General acted as depositary continued in force,344 only a handful of bilateral agreements seemed to have been continued.345 Jordan, for its part, merely acceded to some of the multilateral agreements formerly applicable to its territory and evidence as to the continuity of bilateral agreements was sparse. As regards Trusteeship territories, although several had entered into devolution agreements (Western Samoa, Somalia, and British Togoland) these were merely ‘bilateral acts between the Administering Authority and the territory rather than an expression of United Nations policy’,346 and Tanganyika (together with Burundi and Rwanda) had resisted any supposition of automatic inheritance of agreements entered into on its behalf by the British authorities. Indeed, it was precisely because of the lack of competence of the mandatory power that led (p.154) Tanzania to reject the continuance of the Belbases agreements.347 Waldock thus came to the conclusion that Mandates and Trusteeships, so far as they remained a category of significance, could be addressed largely in the same way as protected States, and hence as new States – i.e. that there could be no standing assumption of any automatic succession to treaties.348 In the event, these conclusions were such as to encourage the Commission finally to abandon the idea of giving any special reference to Mandates, Trusteeships, or protected States in the draft articles.
Ultimately, the issue that structured discussion in respect of all these cases – and indeed which underlay the difference in approach of various authors to the question of decolonization more generally – was the relationship between sovereignty and representation. On one side were those willing to adduce from the fact that mandatory powers did not exercise sovereignty in relation to the territory concerned, the conclusion that there was simply no possibility of there being any automatic inheritance of treaty obligations. This could be extended to the case of ‘Protected States’ insofar as the ICJ had maintained that such regimes of protection did not eclipse the sovereignty of the State falling under protection, and extended also to straightforward ‘colonies’ on the basis that they enjoyed something approximating a ‘right of independence’ under the terms of the Declaration on Friendly Relations (1970). For such authors, the entire issue could be structured around the idea of ‘sovereignty’, which they appeared to take as a fixed category. On the other hand, there were those who saw the various arrangements of governance – whether they be Mandates, Trusteeships, Protectorates, or protected States – as effectively making redundant the category of sovereignty as a way of understanding the imperatives of succession. To say, as McNair put it in the South-West Africa case, that in the case of mandated territories, sovereignty was ‘in abeyance’, was only to make apparent the limited utility of arguments about sovereignty for purposes of deciding the future of treaty obligations. It neither affirmed nor refuted the possibility of succession.
If the idea of formal ‘sovereignty’ seemed to raise more questions than it answered, one could always look behind it to the question of representation: to what extent had the local population and local elites been involved in the conclusion of the treaty or in its application and localization through legislation? How far, in other words, might one infer consent on the part of the local population (through the local administration), notwithstanding the fact that they were in no formal sense independent? One senses, however, that for those relying upon the category of sovereignty for their resistance to colonial inheritance, the arguments about representation were largely self-interested ones. Just because the British authorities had begun to rely upon the notion of the divisibility of the Crown, emphasizing in the process the relative autonomy of local regimes of governance in the various parts of the Empire, this was not sufficient reason for intuiting to (p.155) the ‘colonized population’ its consent to international arrangements concluded on their behalf. Bedjaoui, for example, insisted that ‘the Commission should take into account the anti-colonial philosophy of the United Nations’349 and recognize in the process that:
Representation, in other words, appeared to be a consideration that could only effectively be brought to the fore once the scourge of colonialism had been eviscerated. The subtle and deeply embedded nature of colonial rule meant that it was neither possible nor legitimate to search for assent to international obligations on the part of the colonized population. As suggested above, however, this radical critique of colonialist ideology was also one that only really went so far as to empower the elites that were to assume responsibility for governance after independence: the cost of resistance being the authorization of a new authoritarianism.351
The problem of representation in international law arose not in the case of protected States, mandates or trusteeships, or dominions, which were all survivals of colonial or semi-colonial situations condemned by the Charter, but perhaps more fruitfully in the case of unions or dismemberments of States.350
8. Other Categories of Succession
It was only in Waldock's final Fifth Report, that he belatedly came round to dealing with categories of succession other than the cession of territory or the acquisition of independence of new States to which he had devoted most attention up to that point. Here, he distinguished three different categories of case. The first concerned the ‘formation of unions of States’, the second the ‘dissolution of a union of States’ and the third ‘other dismemberments of a State into two or more States’.352 The categories identified by Waldock said a great deal about his approach to the project of codification.
In his book published only several years earlier, O'Connell had identified nine different categories of succession each of which, in his view, was distinct in terms of the rules that would serve to be applicable to it. These included: annexation and cession (Chapter 2), protection and suzerainty (Chapter 3), entry into a federation (Chapter 4), unification (Chapter 5), reconstruction (Chapter 6), secession (Chapter 7), grants of independence (Chapter 8), protectorates and trust territories (Chapter 9) and dismemberment (Chapter 10).353 For Waldock's purposes, several of these categories were combined. No real distinction was to be drawn between protection and suzerainty, protectorates and trust territories, and grants (p.156) of independence or (indeed, as it turned out) secession. The category of ‘entry into a federation’ was dealt with either under the heading of unification (if it involved States) or under the rubric governing new States (if it involved territories), and Waldock clearly believed the categories of ‘annexation’ and ‘reconstruction’ to be largely redundant or insignificant. Apart from Waldock's obvious desire to avoid an excessively complex typology of succession, the difference in attitude may be traced to the relative emphasis given to domestic constitutional arrangements.
As suggested above, in O'Connell's case, his general approach to succession had been predicated upon the idea that succession was a problem of general legal philosophy rather than one specifically of concern to international lawyers. He rejected any dogmatic compartmentalization of international and municipal law, preferring instead to attack the issue of succession as one for which a uniform response was needed and which could only be constructed by reference to what he saw to be the concrete legal sociology of political change. Local responses to the question of succession in the form of judgments of courts concerning the continuity of law (as may relate, for example, to legislation or contract) were not merely ‘material sources’ of State practice to which the international lawyer might, or might not, refer, but rather the repository of legal insights into the same general problem of legal continuity to which both municipal and international lawyers had to address themselves. His search for a uniform response to this general problem (through the harmonization of international and municipal law)354 was thus to necessitate taking into account the particularities of constitutional arrangements both in terms of their structure and evolution such that differences between federal and unitary arrangements, between forms of ‘protection’, ‘trusteeship’, or ‘suzerainty’, or between the modes of ‘revolutionary’ and ‘evolutionary’ independence had to be recognized.
Waldock, by contrast, saw the problem exclusively as one of international law, and one that was to be determined as a matter of deduction from State practice rather than one of general legal philosophy. Certain distinctions had to be maintained – one could not realistically posit the same rule for a case of secession as for a case of unification or conflate the categories of universal and partial succession – but it was evident to Waldock that different types of constitutional arrangement were of little concern, given the general bar of domestic jurisdiction. Thus, whereas O'Connell had reacted against Hall's prescription that everything depended upon international ‘personality’, Waldock had firmly internalized the structural constraints of the latter and effectively took it as his consistent point of departure. That this did not entirely explain Waldock's retention of a distinction between the dissolution of unions of States and the dissolution of unitary States was to be explained only perhaps because of his uncertainty as to which analogy was appropriate.
(p.157) a) Unions of States
Until well into the 20th century, international lawyers were apt to lapse into classification when describing the principal actors in international law. This characteristically extended beyond the identification of various non-State agencies (such as individuals, corporations, and intergovernmental institutions) to a classification of States themselves. Although the overriding concern with ‘legal personality’ (defined in terms of the criteria for statehood) might have been such as to efface any effective distinctions between ‘types’ of State355 – except, perhaps, in those limited cases in which the constituent units of a federal State enjoyed power to enter into agreements with other States356 – the tendency to differentiate between unitary States and ‘unions of States’ (with a further internal distinction between ‘real’ and ‘personal’ unions) appears to have been a habit difficult to shake off, even if its significance was admitted to be limited.357 The background to this residual categorization, however, was not premised upon any real differentiation in the status of such States (in terms of their abstract legal capacity), but in terms of the perceived relevance of unification as a mode of State formation for the consequential rules of succession that were deemed to apply. Precisely why that might be the case was something that obviously required some investigation, and Waldock took up the challenge.
By way of trying to define the remit of his draft articles dealing with unions of States, Waldock began by making some fairly self-evident distinctions. To begin with, there was a distinction between ‘unions’ of States that brought into being ‘a new political entity … on the plane of international law and organization’ (eg the United Nations or its specialized agencies), and those that also created a new political entity on the plane of internal constitutional law (eg the United Arab Republic, the United Republic of Tanzania, or the Union of Iceland and Denmark). This distinction also extended to ‘hybrid unions’ such as the EEC which, whilst bearing some of the hallmarks of a ‘quasi-federal association of States’, nevertheless assumed the character of a ‘regional international organization’ for purposes of succession.358 A second distinction, for Waldock's purposes, was to be made between a union of mere territories (or a territory with a State), and a union of two independent States. The rationale, here, was that in the case of a union of territories (such as Ghana, formed from the amalgamation of the (p.158) colony of the Gold Coast, Ashanti, the Northern Territories Protectorate, and the Trust Territory of Togoland) there would be no question of the continuity of the international personality of the component territories, and they could therefore be treated on the same lines as any other newly independent State.359 Similarly, the uniting of a territory with a pre-existing State (such as Newfoundland's entry into the Dominion of Canada) was most closely analogous to a case of cession and therefore appeared to be governed by the moving treaty frontiers rule.360 Only in case of the uniting of two independent States would a new rule of succession have to be identified.
This second distinction between unions of States and unions of territories was not one that was uniformly adhered to by other scholars. The ILA, in its work on succession, had not sought to distinguish in any categorical sense between the formation of ‘composite States’ by reference to the status of the original component units.361 In its commentary to its resolution concerning succession in case of ‘unions or federations of States’, the ILA indicated that the rule of continuity of treaties within their original treaty limits would apply both to unions of States and to unions of territories (citing, in support, the case of Somalia).362 Its position on this point, however, was largely dictated by the fact that it had already determined that, in case of newly independent States, a presumption of continuity would operate. If treaties survived the creation of a new unitary State, it would be very strange to suggest that they would not similarly survive the formation of a federal union (with the obvious qualification that survival might depend upon the consistency of the treaty with the constitutional position established by the union/ federation), and therefore the distinction between the unification of States and the unification of territories could not be sustained.
That Waldock had proceeded on a different basis in respect of newly independent States meant that drawing a parallel between the unification of States and the unification of territories would only make sense if he was to come to roughly the same conclusions in each case. In an abstract sense, of course, it would have (p.159) been open for Waldock to insist that a union of States was such as to create a ‘new’ legal person and hence that rules governing unification were the same as those governing the acquisition of independence. But Waldock appeared to regard the issue of pre-existent personality as a primary point of distinction. As he was to explain: ‘A sovereign State, when it joins a federation or union of States, has an existing treaty regime of its own – an existing complex of treaties to which it is a party in its own name. A mere territory may have an existing complex of treaties formerly made applicable to it by its administering Power; but in general these treaties are not treaties to which it is itself a party at the moment when it joins the federation’.363
Again one finds Waldock rejecting any suggestion that mere ‘territories’ might have entered into international agreements in their own name rather than that of their colonial masters, and seems to have assumed that the type of devolution of treaty-making competence prior to independence that had been so influential in the development of the ILA's prescriptions, were of little legal significance. His qualification that this was only ‘in general’ the case, was perhaps added in light of his acceptance that in certain cases (specifically the class of ‘Protected States’) the territory concerned may actually remain party to certain treaty arrangements contracted prior to the imposition of colonial administration.364 In any case, he subsequently proposed, and had endorsed, a provision whereby the unification of territories would be governed by the same principles as those relating to newly independent States.365
Having thus narrowed down the topic to the unification of pre-existent States, Waldock cast around for relevant precedents. The problem was that remarkably little relevant practice existed. The Unions of Norway and Sweden (1814–1905) and Denmark and Iceland (1918–1944) were of little apparent interest since neither Norway nor Iceland had been independent States prior to the union.366 In similar vein, whilst the Republic of Somalia, formed through the union of Somalia and Somaliland, was technically a union of independent States,367 their separate existence prior to unification was ‘very short lived’ and largely preliminary to the formation of the union itself.368 Other examples of practice (p.160) from the late 19th and early 20th centuries, furthermore, appeared difficult to interpret.369 The formation of the German Federation in 1871 (with the possible exception of the annexation of Hanover and Nassau) was marked by the survival of most treaty obligations370 including those concerning commerce,371 consular relations,372 and extradition.373 The same was the case as regards the Swiss Federation formed in 1848,374 the Greater Republic of Central America formed in 1895,375 and (in the next century) the formation of the USSR on 23rd July 1923.376 Nevertheless, whilst such precedents appeared to endorse a general principle of continuity,377 what was less clear was whether treaties survived within their original limits, or whether they were subsequently extended to the entirety of the territory. In the case of the Swiss Federation and the USSR it was evidently the case that pre-federation treaties of the individual Cantons/ Republics would survive only within their respective territorial limits after federation. Evidence in the case of the German Federation, by contrast, was somewhat mixed.378 Ultimately, the problem seemed to depend upon whether treaty survival was premised upon the Federal State being a successor to the States within their respective regional limits, or rather upon the continued legal (p.161) personality of each member State.379 On this latter point, the ILA had clearly rejected the view that treaty continuity depended upon the retention of a measure of international personality on the part of the constituent entities, with the simple observation that in practice ‘continuity has occurred even in the absence of such faculties’.380
When it came to it, Waldock gave greatest attention to two recent cases of unification: that of Egypt and Syria to form the United Arab Republic in 1958,381 and of Tanganyika and Zanzibar to form Tanzania in 1964. Superficially, both of these cases appeared to establish the same precedent, namely that the ‘successor’ States would continue to be bound by existing treaty obligations within their existing territorial sphere of applicability.382 In the case of the UAR, a communication of the UAR Foreign Minister was directed to the United Nations indicating that ‘the Government of the United Arab Republic declares that the Union is a single Member of the United Nations, bound by the provisions of the Charter, and that all international treaties and agreements concluded by Egypt or Syria with other countries will remain valid within the regional limits prescribed on their conclusion and in accordance with the principles of international law.’383
Following this notification, the Secretary-General proceeded to list the UAR as party to all the treaties to which Egypt and Syria had been parties before the union, but indicated, in each case, whether Egypt or Syria had taken action in respect of the treaty in question.
In the case of bilateral treaties, the UN Secretariat's studies on extradition treaties,384 air transport treaties,385 and trade agreements,386 suggested that the treaties remained in force unaffected by the fact of unification.387 Like the (p.162) UAR, the uniting of Tanganyika and Zanzibar into the Republic of Tanzania in 1964 involved the unification of two independent States under a common Head of State and a common organ responsible for international relations.388 In a note resonant of that issued by the UAR, the Republic of Tanzania informed the Secretary-General on 6th May 1964 that:
As far as membership in the UN, was concerned, the Secretary-General seems to have dealt with this communication in the same manner as that of the UAR,390 as indeed did the organs of the UN and specialised agencies.391
the United Republic of Tanganyika and Zanzibar declares that it is now a single member of the United Nations bound by the provisions of the Charter, and that all international treaties and agreements in force between the Republic of Tanganyika or the People's Republic of Zanzibar and other States or international organizations will, to the extent that their implementation is consistent with the constitutional position established by theArticles of the Union, remain in force within the regional limits prescribed on their conclusion and in accordance with the principles of international law.389
Whilst superficially similar, the cases of the UAR and Tanzania were, in many respects quite different. As regards the UAR, it was held to be entitled to take the seats of Egypt and Syria within the United Nations (and organs thereof) without requiring it to undergo admission as a member State (this process was later reversed with no greater difficulty).392 The continuity of treaties within the original territorial scope of validity, therefore, seemed to follow from the idea that the UAR did not so much ‘replace’ the personalities of the two Republics in international relations, but continued them albeit under the guise of a single agency.393 As O'Connell pointed out, however, this conception of the union was difficult to understand within the framework of traditional conceptual categories: ‘It was not a real union because the Republic was a State; nor was it a personal union, because whatever international personality of the constituent States (p.163) survived was of very limited character. At the same time it was not a federation since there was no classical distribution of legislative powers’.394
The only conclusion O'Connell felt able to draw, therefore, was that the union was entirely sui generis albeit one which had certain analogies with other types of association. Even if, as Waldock argued, O'Connell was relying upon a rather spurious distinction between real unions and ‘States’,395 the evident difficulty was that, whilst for certain purposes the United Arab Republic was treated as a single entity (as evidenced, in particular, by the centralization of legislative and treaty making powers under the Provisional Constitution396 and by its unitary membership in international organizations) in many other respects it remained a loose federation of two separate entities.397 Whether this was to make it a sui generis entity, or rather, emblematic of the inevitable contortions that accompany the attempt to rationalize the formation of political unions in terms of a unitary concept of governmental authority, is open to question.
For all the equivocation over the characterization of the UAR, the formation of Tanzania was far less obviously a union of two equally positioned States. Tanzania was listed as party to those multilateral treaties to which Tanganyika had been party prior to unification and on the basis of the date at which Tanganyika had notified its act of acceptance, ratification or accession.398 No mention was made of their applicability within pre-existent territorial limits, nor was any mention made of Zanzibar. This point was later made explicit in a note to the Secretary-General who was informed that the United Republic of Tanzania ‘continues to be bound by multilateral treaties … which had been signed, ratified, or acceded to on behalf of Tanganyika’.399 The somewhat ‘lopsided’ arrangement that resulted was, it seems, largely due to the fact that Zanzibar had also only just achieved independence as a former colonial protectorate (in 1963) and had taken the view that pre-independence treaties had terminated following the revolution in 1964.400 Zanzibar had not, therefore, either notified other States of its acceptance of multilateral or bilateral agreements,401 nor had it apparently concluded any (p.164) further such agreements before unification.402 The continuity of pre-unification treaties, therefore, appeared to be a matter of little practical significance as far as Zanzibar was concerned.
Despite the evident peculiarities of each of these cases, Waldock was to suggest, largely in line with the position adopted by the ILA, that such practice appeared to indicate ‘a rule prescribing the continuance in force ipso jure of the pre-union treaties of the individual States within their respective regional limits and subject to their compatibility with the constitution of the Union’.403 However, two points of caution were evident. First of all, Waldock was not entirely confident that the principle of ipso iure continuity was adequately established in practice, and whilst he clearly preferred it, ultimately offered the Commission a choice between two formulae, one of which provided for automatic continuity, the other for continuity through express or tacit agreement.404 His second concern related to the ‘compatibility’ criterion which had been particularly evident in the practice of Tanzania, and which had been discussed in the work of the ILA.405
In its provisional report, the ILA had not taken a view on the question whether treaty survival depended upon the constitutional competence to give effect to the agreements in question after the formation of the new entity. Its ambivalence on the issue was explained in the following terms:
For Waldock this was really to go too far in ‘introducing internal constitutional provisions into a rule of international law, and in a manner which takes insufficient account of the rights of the other States parties to the treaty’.407 But even rejecting the hypothesis that continuity depended upon the continued treaty-making capacity of the component units of the union/ federation (for which the (p.165) UAR and Tanzania were good examples) he was still to struggle with the possibility that the continuance in force of a treaty might in practice be incompatible with the terms of the union. If a trade agreement, for example, cut across the unified economic regime envisaged for the union, its continuity could surely not be secured.408 The only answer, as far as Waldock was concerned, was to introduce a qualification by which continuity of an agreement would be conditional upon the compatibility of its object and purpose with the constitution of the union. If laid down as an ‘objective legal test’ and applied in good faith, it would represent a ‘reasonable and practical rule’.409
On the one hand, it may be argued that a State, if it may be exonerated from treaty obligations by being annexed to another State, may also be exonerated if its relationship with that other State is less than total absorption. On the other hand, it may equally cogently be argued that, since a State may not plead constitutional incapacity as an excuse for non-compliance with a treaty, escape from treaties is not achieved by a new constitutional relationship with another State’.406
As ever, Waldock's eye for the pragmatic solution, largely obscured the underlying rationale for his proposal.410 The key conundrum was that Waldock neither wanted to conceive of unification as bringing into being an entirely new State,411 nor was he willing to accept that continued treaty-making competence on the part of the component units of a federation might be the rationale for local treaty continuity. The historic international personality of the units of union/ federation was thus important in his mind for purposes of discriminating between a case of union, and the merger of former colonial territories into a new State, but he was unwilling to attribute to that personality any role in the rule thus articulated. If local treaty continuity did not follow from the fact of personality, nor by way of tacit agreement, then one was left casting around for a rationale for his proposal. Indeed, when pushed on the matter during discussions within the Commission, Waldock replied rather lamely that his conclusion was merely ‘in conformity with what he had found in State practice’.412
Waldock's equivocation on this point was to encourage a quite extensive discussion of the matter within the Commission. Certain members, emphasizing the radical nature of unification, took the view that they should be placed in the same position as ‘new States’.413 Others by contrast, emphasized the essential difference between States emerging from decolonization and those from the unification of two independent States, and advocated as a consequence a general rule of continuity on the basis that it would be the best means of protecting the interests of third States.414 Nearly all, however, emphasized the ‘novel’ nature of the proposals,415 and the absence of clear examples from practice.416 In the event, a majority of the ILC preferred a rule conserving the continuity of treaties (p.166) within their territorial limits in case of unification, and did so for the most part for reasons of policy.417
In the final stages of drafting in 1974, a brief but significant discussion took place concerning the relationship between the rule governing the transfer of territory on the one hand (the moving treaty frontiers' rule) and that governing the uniting of States. Tammes had suggested that the rule governing unification was premised upon the idea that a new State had come into being, and that this therefore gave rise to questions as to what rule would apply in cases in which one State was to be entirely absorbed by another (referring to the classic conundrum as to whether Italy was formed through a succession of incorporations into the Kingdom of Sardinia, or by the establishment of a new State through unification).418 For the most part, members of the Commission were unwilling to engage with the problems to which this appeared to give rise. Some argued, for example, that ‘absorption’ was no longer a legitimate category, given the general prohibition on annexation. Others maintained that it would be inappropriate to allow a State to avoid its international obligations by means of entering into a union with another State.419 Others still, suggested that there was a need to maintain the formal boundaries between the cession of territory and unification (in other words between ‘partial’ and ‘total’ succession).420 Ultimately the Commission maintained its commitment to the rule of continuity but included, within the commentary to the draft articles, a note to the effect that it would ‘cover the case where one State merges with another State even if the international personality of the latter continues after they have united’.421
b) The Dissolution of States
Having set out to distinguish unification from other modes of State creation for purposes of succession, Waldock continued to employ this distinction in the context of State dissolution. He put forward two separate sets of articles for consideration by the Commission, one dealing with the dissolution of unions of States, the other with ‘other dismemberments of a State into two or more States’. On an abstract level, this seemed to make perfect sense. If unification resulted in the continuity of treaties within the territorial confines of the component parts of the union, then dissolution of such a union, would presumably result in the reversal of that position. Each component part would be bound by treaties applicable (p.167) to that territory. If, however, a unitary State were to dissolve through, for example, the secession of various territorial components, then the question would arise as to whether the best analogy should be that governing the dissolution of a union, or that concerning the emergence to independence of a new State? In the event, Waldock's proposals veered towards the latter. In case of the dissolution of a union he thus proposed either a rule of ipso iure continuity or one that envisaged the possibility of novation by consent. In the case of ‘other dismemberments’, the rules elaborated for ‘new States’ were to apply.422
In case of the ‘dissolution of unions’ Waldock appeared to have plenty of practice to support his preferred presumption of continuity. He began with the dissolution of the Union of Colombia in 1829–31,423 the Union of Norway and Sweden in 1905424 and continued with the dissolution of the Austro-Hungarian Empire in 1919,425 the union of Iceland and Denmark in 1944,426 the United Arab Republic427 and the Mali Federation in 1960.428 In nearly all cases, he identified a willingness on the part of the States concerned to continue existing treaties applicable to the territory concerned after dissolution. Even judged by the standards of the material relied upon by Waldock himself, the picture was evidently somewhat more complex. Britain had disputed Sweden's unilateral proclamation as to the continuance in force of all Union treaties, claiming for itself the right to examine those relations anew.429 Austria had frequently demonstrated an unwillingness to continue automatically Dual Monarchy treaties as was evidenced in the Secretariat studies on extradition treaties,430 trade agreements.431 and multilateral agreements.432 Iceland had adopted the rather curious position of continuing bilateral agreements but not multilateral agreements. The so-called ‘dissolution’ of the United Arab Republic was clearly a matter of dispute given Egypt's retention of that title and general silence on the question of treaty continuity, and the Mali Federation was, even in Waldock's own terms, something of an anomaly.433
(p.168) Predictably enough, in light of the debate over unions of States, the Commission was once again divided on this point. Some took the view that States emerging from a union were effectively ‘new States’ insofar as they enjoyed no independent personality whilst part of the union.434 Others, by contrast, saw the dissolution of unions to be simply the obverse of their formation and therefore a rule of continuity would be appropriate.435 Whilst the latter view ultimately prevailed, serious questions were raised concerning Waldock's methodology at this point. Quentin-Baxter, for example, observed that the question whether the component parts of a union had previously existed as separate States was probably less important than the particular circumstances surrounding the dissolution of the union:
Waldock, no doubt, would have taken the example of Bangladesh to be beside the point, insofar as he was dealing with the dissolution of unions of States rather than, as he put it, ‘the ordinary case of dismemberment of territory’.437 But this was really just to expose the rather rudimentary nature of the distinction he had drawn between the dissolution of unions and ‘other dismemberments of a State’.438 Was the separation of Bangladesh from Pakistan really so different from the dissolution of the United Arab Republic, and could one place such great significance upon the ‘trace of international personality’ that Waldock saw to be the hallmark of unions as distinct from unitary States?
Assuming, for example, that the State of Pakistan, East and West, had continued to exist in the old shape for a very long time, maintaining its unity by a process of devolution, by balancing the interests of the two parts, and had then, in the changed circumstances of the 21st century, decided that the remaining ties must be dissolved, could it fairly be said that the law governing the dissolution of the union should be determined almost solely by the situation which had existed before the formation of the union?436
When Waldock then proceeded to deal with ‘other dismemberments’ of States, it quickly became evident that he was not really speaking about the ‘dismemberment’ of States at all, but rather a separate category of ‘secession’ in (p.169) which the precedents he had cited earlier concerning the ‘traditional view’ were all applicable.439 He thus ran over, once again, the historic practice relating to the secession of American colonies from Britain and France, that of Belgium from the Netherlands (1830), Cuba from Spain (1898), and the formation of Czechoslovakia and Poland in 1919. Additional material was produced in relation to the Irish Free State (1922), Pakistan (1948), the dismemberment of the Federation of Rhodesia and Nyasaland (1963), the independence of Singapore in 1965, and the secession of Bangladesh from Pakistan (1972), all of which seemed to confirm his thesis that in the case of a dismemberment of a State ‘as distinct from the dissolution of a union of States’ the emergent States are treated in precisely the same way as other ‘newly independent States’.440 Again there was a certain selectiveness in terms of his choice of example (no real mention was made, for example, of South Africa, Canada, or Australia), but the real problem was where to place this practice? Were these really cases of dismemberment, or were they rather simply cases resulting in the emergence to independence of a new State?
A clue to Waldock's prevarication on this point is found in the final paragraphs of his commentary to draft Article 21. There, he was to note that:
Having entitled his draft article ‘Other dismemberments of a State’, Waldock makes clear in this passage that he had not really addressed the total disappearance of the previous State at all, and that he had largely just concentrated upon secession, reiterating in the process the work already undertaken in respect of new States.442 The presence of this article, however, was significant insofar as it seemed to draw an implicit line between the acquisition of independence of colonies on the one hand, and other cases of secession on the other even if, in fact, the rules were to be the same for each category.
in most cases of dismemberment one or other part is recognized as, or claims to be, the continuation of the State that has suffered the dismemberment; and if any part is treated as still representing the former State, the other part or parts are correspondingly treated as having become independent States by secession … . Ought the draft articles, however, to envisage the case of the total disappearance of the previous State and its replacement by two or more States? In other words, do the categories of succession include, as a special case, the mere division of a State into two or more States? And in that event is the international personality of the former State to be considered as extinguished and the state replaced by two or more new States, or as continuing in a divided form in the international personalities of the States resulting from the division?441
It was only at a fairly late stage that members of the Commission picked up on this apparent tension within Waldock's approach. Ago had started the ball rolling in the discussion of draft Article 6 (relating to new States) in remarking (p.170) fairly innocently, that the rule appeared equally applicable to ‘cases of secession in general’ and not just to decolonization. ‘Whether what seceded was a former colony or a metropolitan province of the State itself’, he suggested ‘made no difference’.443 Ustor responded vigorously by arguing that in cases of secession, partition or dismemberment:
the new States could not say that treaties previously concluded were not their treaties, since their parliaments might contain members who had actually participated in the ratification of those treaties. Such States would obviously not enjoy the same status as a former colony, which entered the international forum as a completely new State.444
At this point other members of the Commission joined the fray with examples and counter-examples traded to and fro. Bartoš, in support of Ago, pointed out that the union of Norway and Sweden had broken up precisely because the Norwegian parliament opposed the foreign policy then pursued by the Stockholm government and that for it to have inherited treaties as a consequence would have been perverse.445 Ushakov replied in support of Ustor, with the suggestion that if Tanganyika and Zanzibar were to separate, there would be no justification for them to claim to be freed from treaty obligations concluded on their behalf by Tanzania.446 Decolonization, in his view, ought to be treated as a separate category.447
At this stage Waldock's carefully constructed typology of succession started to unravel. On the one hand if unification were to be subject to a general rule of treaty continuity (within the respective territorial limits) it would seem dangerous to admit, in light of the fleeting unions that had marked the period shortly after decolonization, that the reversal of that process would allow those States to free themselves from inherited treaty obligations. If, furthermore, the dismemberment of a union was to attract a rule of continuity, surely that should apply with equal force to the dismemberment of unitary States?448 Differentiating between the two categories seemed to be extremely problematic when one considered cases such as Bangladesh or (potentially at least) Tanzania.449 On the other hand, the argument could obviously be run in the opposite direction. If new States were under no obligation to continue existing treaty arrangements, then surely the same rule should apply in case of secession, and equally so in case of the dismemberment of States whether or not they be unions?450 Was not any State emerging from such processes a ‘new State’? Clearly some way of discriminating between (p.171) the various categories seemed to be necessary, but it was not immediately obvious how this might be done.
As the discussions proceeded in 1972 and 1974, the Commission inched its way towards the conclusion that the only way of resolving these tensions was by treating decolonization as a discrete category.451 This was certainly not something that explicitly structured the draft from the outset, but an idea that crept up almost unheeded.452 Indeed in his original formulation, as suggested above, Waldock was prepared to accede to the idea that in case of dismemberment or secession, the rules applicable to new States should apply with the proviso that the rump State (if it continued) would remain bound by any existing treaty obligations. This also remained the case until the end of the 1972 session and provided, paradoxically enough, the justification for a circumscribed definition of ‘newly independent States’ (applying only to ‘dependent territories’). There, it was debated as to whether the definition should also include non-colonial secessions, but it was reasoned that since the rules were the same in each case, nothing of great significance was thought to hang on what did, or did not, constitute a newly independent State.453
The Commission's response to such issues was to emerge only at a very late stage. By the beginning of its 1974 meeting, with Vallat at the helm, it had abandoned the distinction between the dissolution of unions and unitary States and was left with two articles: one dealing with the ‘dissolution of a State’ and another with the ‘separation of part of a State’.454 In the former case, which included the dissolution of both unions and unitary States, a rule of continuity was articulated; in the latter case the successor State would be governed by the same principles as those pertaining to newly independent States.
The responses received from governments in 1974, however, were to put all Waldock's categories under renewed scrutiny.455 For some, the question was that of working out the implications of self-determination. The Swedish government, for example, queried why ‘the principle of self-determination should require a clean slate for newly independent States and for States emerging by separation … but not (p.172) for States created by uniting of States or dissolution of a State’.456 For others, however, the problem existed irrespective of what one might read into the problem of self-determination. The Belgian government, thus, suggested that the notion of the clean slate was, in reality, linked to the concept of sovereign autonomy rather than self-determination and therefore the distinctions drawn by Waldock between ‘newly independent States’ and other cases of succession were largely ‘artificial’.457 The US, in similar vein and on a related issue, suggested that the distinction between the ‘dissolution of a State’ and the ‘separation of part of a State’ was ‘quite nebulous’ and ‘nominal’ and that the latter could be brought within the frame of the category of ‘newly independent States’.458 In presenting these views, Vallat himself merely reiterated the formal importance of differentiating between the dissolution of a State, on the one hand, and the separation of parts of a State on the other, but did not commit himself to a view as to whether the operative rule in the latter case should be one of continuity or consent. He was to remark, however, that:
Where there is dissolution of a State, a treaty concluded by the predecessor State will have been made on behalf of the State as a whole. It may be presumed to have been made with the consent of the people of all parts of the State and, so long as the State remains in existence, to be binding on the entire State. This is a very different situation from that of a dependent territory which, although it may be consulted about the extension of the treaty, does not normally play any part in the actual government of the State concerned, and cannot therefore be regarded as responsible for the conclusion of the treaty as such. The same observation may be made about the position of a part of a State that breaks away and becomes independent. However, in this case, it is more likely that the part will have been in a position more akin to that of a dependent territory. Indeed, it is quite possible that the attempt to impose the application of a particular treaty may be the cause of the secession of part of the State.’459
The nub of the issue, thus, was the condition of ‘dependency’ from which one might intuit a right to be freed from inherited obligation. In a formal sense, all were clear as to the distinction between an overseas colony and a contiguous territory in terms of their putative involvement in the ‘actual government of the State’, clear also that this was a distinction that underpinned UN policy relating to self-determination. But when it came to determining the consequences of the gaining of independence, the absence or otherwise of territorial contiguity did not explain a great deal. What seemed to be more important was the ‘consent’ or ‘will of the population’,460 but as Waldock had already observed, ‘[s]uch factors were not really susceptible of codification, despite their relevance as underlying considerations’.461
(p.173) Nevertheless, the matter was referred to a drafting Committee chaired by Hambro, which sought to overcome the problems adverted to above through the adoption of a single rule of continuity for both cases of dissolution and separation (secession).462 It was reasoned that most of the examples produced by Waldock and others, justifying a negative provision ‘concerned the separation of a State of what would now be called a dependent territory’.463 In order to put this insight into place, therefore, a third paragraph was to draft Article 27 (later draft Article 33) providing: ‘if a part of the territory of a State separates from it and becomes a State in circumstances which are essentially of the same character as those existing in the case of the formation of a newly independent State, the successor State shall be regarded for the purposes of the present articles in all respects as a newly independent State’.464
This ‘essentially similar circumstances’ clause thus became the means by which the Commission could overcome an otherwise rigid formula for differentiating between dependency understood in the colonial/non-colonial sense, and dependency understood in terms of representation or participation in government and foreign affairs. The form of expression, however, was far from ideal – bringing to mind the old problematic distinction between evolutionary and revolutionary secession465 – but it was clearly designed to address cases such as that of Bangladesh. As it was to turn out, however, this clause was finally removed at the Conference in 1978, leaving the impression that the problem of dependency and alien rule was really one confined to the context of salt-water colonialism.
9. Dispositive Treaties
As we have seen, Waldock had begun his work on succession with the idea in mind that the draft articles should represent a ‘supplement’ to the ILC's work on the law of treaties, and that, so far as possible, its approach should mirror that adopted in the draft articles on the latter. As Rosenne had already pointed out in the Commission's Sub-committee, this was to have certain implications as regards the articulation of functionally specific rules for different categories of treaties. In its work on the latter, the ILC had largely taken the position that it should concentrate, as far as possible, upon the formal elements of treaty-making, maintaining in the process a general distinction between the form and substance of such agreements. The law of treaties, understood as those rules that governed the entry into force and effect of treaty relations, was to be distinguished from ‘treaty law’ understood as the substantive commitments that come to be framed (p.174) within the terms of those agreements. The law of treaties was properly part of customary international law and putatively universal in scope; treaty law, by contrast, bound only those States party to the agreement (except, and insofar, as the content of the treaty might later come to reflect, or be expressive of, the position in customary law). Such an approach was largely reinforced by a series of bifurcations in general legal doctrine between primary and secondary rules (or ‘structural’ and ‘substantive’ rules), formal and material sources of law, and in some degree at least, between peremptory and dispositive norms.
In contrast to the ILC's general stance in relation to the law of treaties, the tradition of scholarship addressing the question of succession, had long distinguished between categories of treaties by reference to their subject matter. Vattel's original distinction between ‘real’ and ‘personal’ treaties,466 whilst understood to be premised upon a largely redundant conception of sovereignty,467 had been re-packaged and re-deployed over the years as a convenient analytical tool for avoiding some of the more uncomfortable consequences that might ensue from an all or nothing approach to treaty succession. The doctrine of universal succession thus went hand in hand with the recognition that certain agreements were essentially ‘personal’ or ‘political’ and hence not susceptible to inheritance, the clean-slate doctrine, by contrast, was normally qualified by the recognition of a category of ‘dispositive’, or ‘real’ treaties whose inheritance was unavoidable.468 To the extent, then, that a putative law of succession might distinguish between categories of agreements by reference to their content rather than their form, this seemed to put in question Waldock's original commitment to the terms of the Vienna Convention of 1969.
For all the differences between the general approach to the law of treaties on the one hand, and State succession on the other, it was also apparent that the ILC's stance in relation to the former was not quite as univocal as the above description might suggest. In two contexts, in particular, it had deliberated quite extensively as regards the possibility that certain kinds of substantive commitment might warrant the elucidation of special treaty rules. The first such context (p.175) which eventually resulted in the adoption of a specific rule within the Vienna Convention of 1969 was in relation to the applicability of the principle rebus sic stantibus. There, having established the general principle that a ‘fundamental change in circumstances’ might be invoked as a ground for terminating or withdrawing from an agreement, the ILC went on to introduce a specific exception in case of treaties ‘establishing a boundary’.469 This was, in its view, supported by the dictum of the ICJ in the Free Zones case and reflective of the opinion of ‘most jurists’. In response to those maintaining that the total exclusion of boundary treaties from the rule might appear to conflict with the principle of self-determination, the Commission suggested that they had to be made an exception ‘because otherwise the rule, instead of being an instrument of peaceful change, might become a source of dangerous frictions’.470 Self-determination was an ‘independent principle’ whose application in the context of the law of treaties might only ‘lead to confusion’.471
The other context in which the ILC had deliberated upon the significance of particular substantive obligations was as regards draft Article 34 (later to become, in amended form, Article 38 of the Vienna Convention) concerning the third party effects of treaty rules ‘through international custom’. This was an issue discussed extensively by Fitzmaurice in his Fifth Report of 1960472 and subsequently by Waldock himself in his Third Report of 1964473 in which a central point of contention arose as regards the question whether treaties establishing ‘objective regimes’ – understood to be those creating rights and obligations erga omnes – could be treated as a special category. Certain members of the Commission had argued that ‘objective regimes’ such as ‘treaties for the neutralization or demilitarization of particular territories or areas, and treaties providing for freedom of navigation in international rivers or maritime waterways’ had, by their very nature, erga omnes effect.474 Others, by contrast, understood that such effects were not, in any way, premised upon the particular character of the agreement, but rather came about either through processes of tacit consent and/or acquiescence, or by way of the ‘grafting of an international custom upon a treaty’. In the event, being sharply divided upon the issue, the ILC declined to assume a particular stance in this regard, admitting merely that certain treaty rights and obligations might have erga omnes effect without specifying how or why that might be the case.475 Both of these earlier discussions, however, had clear significance for the development of rules of succession.
(p.176) a) Boundary Treaties
It seemed to be fairly self-evident to Waldock, that if the terms of Article 38 of the Vienna Convention (immunizing boundary treaties from pleas of changed circumstances) had their basis in considerations of public order, it would follow that such agreements should also enjoy immunity in case of changes in sovereignty. Presumably a change in sovereignty would, at the very least, constitute grounds for pleading that a ‘fundamental change in circumstance’ had occurred, and the possibility, then, that boundary agreements might not survive independence or unification would constitute not only a significant threat to the territorial status quo, but also a surprising erosion of the principle enunciated in Article 38.476 Such reasoning undoubtedly weighed heavily upon Waldock who had himself been involved in the development of the rule in Article 38, and had already put forward a draft article in his very First Report to the effect that boundaries established by treaty should be unaffected by changes in sovereignty.
It was evident, nevertheless, that Waldock was treading on sensitive ground. In the General Assembly's Sixth Committee, the matter had come to debate, and a groundswell of critical opinion had led to the adoption of the following reservation in respect of the Commission's work:
The sense of this, of course, was all rather confused: having argued that the Commission was wrong in its legal conclusions concerning the implications of self-determination, the Sixth Committee then suggested that the issue was not legal at all, but rather one of politics. Reading through this, one may sense that some members of the Sixth Committee were unwilling to have the ILC pronounce upon the legal validity of all inherited boundary agreements in circumstances in which there were ongoing disputes between neighbouring States on precisely that point. Needless to say, this analysis of self-determination was merely such as to encourage Waldock to a further degree of caution when he returned to the topic in his Fifth, and final, Report. There, he provided alternative formulations for two different articles, one dealing with ‘boundary settlements’, the other with ‘treaties of a (p.177) territorial character’.478 In each case, he proposed a rule of continuity (the difference in formulation hinging upon whether it was the treaty which continued, or rather the regime of rights and obligations established pursuant to the agreement) but he was also to make perfectly clear that this was not to sanctify borders the location of which was subject to dispute.
boundary treaties imposed by colonial Powers against the wishes of the people of subject territories should be regarded as contrary to the rule pacta sunt servanda, to the fundamental principle of self-determination, which was a principle of jus cogens, and to General Assembly resolutions 1514 (XV) and 1654 (XVI)… . It was believed that since boundary questions were highly political issues, the Commission should refrain from making legal pronouncements when the particular situations involved fell within the competence of other organs of the United Nations’.477
The significance of identifying the category of ‘dispositive’ agreements (referred to alternatively as ‘real’ or ‘localized’ treaties, or as ‘servitudes’)479 issued from Waldock's stance as regards the heritability of treaties more generally. As O'Connell had pointed out in his 1967 monograph on succession to treaties, the necessity of isolating ‘the touchstone of succession to treaties’ only really arose if one began with a presumption of non-succession. If one commenced, rather, from a presumption of continuity one could exclude by way of construction, those that were inapplicable in the changed circumstances. One would then be left with a residue of surviving treaties that would probably include those traditionally classified as ‘real’ or ‘dispositive’, but in their case continuity would not be dependent upon their a priori categorization as such.480 This was largely the position adopted by the ILA in its work on succession. Having established a general principle of treaty continuity in case of independence or unification, it thereafter avoided the necessity of dealing with the status of dispositive agreements. This was reflected in its resolution on treaties delimiting national boundaries in which it was observed that the question of succession to the treaty as such (as opposed to the executed parts of the agreement) was dependent upon the same general rules of succession.481
(p.178) Waldock, of course, in adopting a largely negative stance as regards ipso iure succession on the part of newly independent States, was forced to return to the issue by way of ensuring that the consequences of non-succession to treaties would not put in jeopardy the boundary settlements that had largely delineated the pattern of decolonization. The real question for both O'Connell and Waldock, however, was how much further this could be taken – did it include, for example, treaties relating to transport, fishing, demilitarization or neutrality, or treaties providing for freedom of navigation on international waterways? How, furthermore, might one construct a rationale for such a rule of inheritance? Would it depend upon the purpose served by the agreement, the degree to which the obligations concerned were associated with land,482 the extent of ‘localization’,483 the acceptance or aquiescence by third parties,484 its executed/ executory485 character, or something else?
Contemporary practice and opinion as regards the broad category of dispositive agreements were fairly disparate in nature. McNair, in his volume on Treaty Law, had made some rather elusive comments on the subject in the chapter entitled the ‘effect of succession on treaties creating local obligations’:
It is not easy to State the legal doctrine which attaches to this kind of treaty obligation its peculiar effect. For most of them it would suffice to say that the instrument from which they originate created rights in rem, against the whole world, whoever the sovereign of the territory affected might be, but this would not cover capitulations or semi-legislative provisions made as part of an international settlement… . In many cases it suffices to invoke such principles as nemo dat quod non habet, nemo plus iuris transferre quam ipse habet, and res transit cum suo onere, for when a State cedes a piece of territory over which it has granted to another State a right of transit or a right of navigation on a river, or a right of fishery in territorial or national waters, it cannot cede that territory unencumbered by that obligation.486
McNair's concern, of course, was to provide some kind of explanatory framework for the various instances of specifically British practice relating to boundaries, rights of navigation,487 demilitarization488 and capitulations.489 His broadly inductive (p.179) approach,490 however, was to leave rather too many questions unanswered. As Fitzmaurice subsequently noted, McNair's reliance on the res transit doctrine merely begged the question as to whether the ‘onus does in fact burden the actual res itself, or whether it is merely in the nature of a personal obligation incumbent on a particular State’.491 For him, the key to the issue was whether or not the treaty was intended to be one affecting the status of the ceded territory rather than merely creating personal obligations for a given country in respect of that territory. His suggested test, therefore, was whether the treaty obligations in question were ‘of such nature, intended to be effective universally or quasi-universally as to impress the territory or something in it with a character henceforth inherent in the territory and irrespective of whether any personal obligation in the matter has been assumed by the local sovereign’.492
O'Connell was to put a further gloss on this distinction between ‘personal obligations’ and obligations relating to ‘status’, by concluding that dispositive agreements were thus a peculiar kind of legal transaction:
The criterion of dispositive character … is admittedly elusive, but at least it can be agreed that the fundamental notion underlying the expression is that a territory is impressed with a status which is intended to be permanent (or relatively so), which is independent of the personality of the State exercising the faculties of sovereignty … The restrictions imposed by the treaty are less of contractual character than equities in favour of the beneficiary State. A dispositive treaty is thus more of a conveyance than an agreement, and as such is an instrument for the delimitation of sovereign competence within the impressed territory.493
For all their differences, however, McNair, O'Connell and to a lesser extent Fitzmaurice, saw this category as representative of a broadly similar set of ‘agreements’, which included not merely boundary treaties, but also international servitudes and capitulations.494
However conceptually coherent their position, advocates of this largely affirmative scholarship in relation to dispositive agreements were clearly vulnerable to the argument, in case of dispute, that the agreement in question was in fact contingent upon the identity of the contracting party (ie that it simply did not attach to the res).495 In his Hague lectures of 1951, Castrèn had highlighted this point, suggesting that the tendency to regard as immaterial the person of the sovereign (p.180) or the identity of the population in arguments about the dispositive character of territorial agreements formed a largely ‘unsatisfactory’ basis for continuity.496 ‘Are there any treaties’ he asked, ‘in which the sovereign of a territory or its population can be ignored?.’497 Territorial agreements,498 like any other, were at least partly ‘personal’ in the sense of being linked to a particular State, and any differentiation on this score was to overlook this obvious ambiguity. Practice, furthermore, was largely uncertain, and the favourable attitude of States in such cases to treaty continuity could be attributed just as easily to ‘raisons d'opportunité’ as to a sense of legal obligation.499
Castrèn, however, did not distance himself entirely from the position adopted by McNair in relation to frontier agreements, but his reasoning was again quite different. Whilst admitting that doctrine was favourable to the idea that successor States be bound by existing frontier agreements, he took the view that these constituted no exception to the general rule (of the ‘clean slate’). Treaties relating to frontiers, in his view, were effectively ‘executed agreements’, and having established ‘une situation juridique déterminée’ had to be respected by the successor State as much as by any other foreign power.500 It was not the case, thus, that frontier agreements themselves would be subject to automatic succession, but the situation resulting from their implementation which gave rise to continuing obligations on the part of the successor.501 Castrèn's view in this respect was later echoed by the ILA, which generally endorsed his approach to executed agreements. The ILA noted, nevertheless, that boundary agreements may also have non-executed provisions, or provisions relating to ‘future action’ (such as, one may suppose, provisions relating to the settlement of disputes) the continuance of which would depend upon the general rules of succession otherwise articulated.502
Having surveyed much of this opinion, and concluding that the ‘diversity of opinion’ amongst writers made it virtually impossible to discern whether, to what extent, and upon what basis, ‘international law today recognizes any special (p.181) category or categories of treaties of a territorial character which are inherited automatically by a successor State’503 Waldock turned to the proceedings of international tribunals.504 This was not, however, to clarify substantially the position. He noted that in the Free Zones of Upper Savoy and the District of Gex case 505 the Permanent Court had decided that the Treaty of Turin of 1816, which fixed the frontier between Switzerland and Sardinia and imposed restrictions on the levying of customs duties in the Zone of St Gingolph was to be viewed as a stipulation ‘which France is bound to respect, as she succeeded Sardinia in the sovereignty over that territory’.506 But it was less clear whether this was a consequence of the territorial character of the agreement (as had been emphasized by Switzerland in its pleadings)507 or as a consequence of general rules of succession.508 Similarly in the Aaland Island case, the League of Nations Committee of Jurists, having dismissed the ‘existence of international servitudes’, nevertheless concluded that Finland was under an obligation to maintain the demilitarisation of the Islands as had been stipulated under the terms of the 1856 Aaland Islands Convention between Britain, France and Russia. It suggested, in that vein, that:
The recognition of any State must always be subject to the reservation that the State recognized will respect the obligations imposed upon it either by general international law or by definite international settlements relating to territory [of which the 1856 settlement was one].509
Again, however, the reasoning here was to suggest that the continuity of obligations derived less from their territorial character, and rather more as a consequence of the dispositive authority of the powers involved in the peace settlement itself.510 Apart from the obvious imperial overtones of this reasoning (a concern that the Committee only partially allayed in its dismissal of the concept of servitudes) it was evident that, if everything constituting part of a ‘definite (p.182) international settlement’ was included, virtually nothing would be left on the outside.511
The other two cases to which Waldock referred provided only indirect support for a hypothesis of automatic succession to territorial treaties. In the case concerning the Temple of Preah Vihear,512 Thailand and Cambodia had both presented arguments in their pleadings concerning the question of whether Cambodia had succeeded to the rights of France in relation to the provisions on pacific settlement under the Franco-Siamese Treaty of 1937. Cambodia had argued that those were ancillary (‘accessoire’) to the terms of the earlier treaty of 1904 delimiting the boundary between Thailand and Cambodia.513 Thailand, for its part, argued that they were effectively ‘political provisions’ quite independent of the terms of the earlier agreement.514 Although both States appear to have been in agreement that the terms of the 1904 Treaty demarcating the boundary between them remained binding notwithstanding Cambodia's independence from France, the Court itself did not address the question of succession. Similarly, in the case concerning the Right of Passage over Indian Territory,515 concerning Portuguese claims to a historic right of passage between its territory of Damão and the enclaves of Dadrá and Nagar-Aveli, the Court felt unable to rely upon the terms of the Treaty of Poona of 1779 concluded with the Marathas or indeed any of the other agreements concluded between Portugal and Britain. It resorted rather to the idea that practice had created a local custom that was ‘unaffected by the change of regime … when India became independent’.516 As a precedent for the survival of territorial treaties or even the regimes created thereby, this was fairly insubstantial.
It was only when, finally, Waldock turned to State practice that he appeared to find himself on somewhat firmer ground – at least in respect of boundary treaties. He began by noting that in the Temple case, both Thailand and Cambodia had taken as their point of departure the continued validity of the Franco-Siamese Treaty of 1904 which demarcated the boundary between them. This was expressive of a stance adopted more generally in relation to States emerging to independence. In 1964, for example, the Assembly of Heads of State and Government of the Organization of African Unity had adopted a resolution declaring that ‘all Member States pledge themselves to respect the borders existing on their achievement of national independence’,517 and the view of the former colonial powers such as Britain was firmly in favour of the continuance of executed clauses of (p.183) agreements delimiting boundaries. There were, of course a number of ongoing boundary disputes – including, in particular, a dispute between Ethiopia and Somalia concerning the former's unilateral suspension of grazing rights that had formed part of the original boundary delimitation between Britain and Ethiopia in 1897,518 and one between Afghanistan and Pakistan relating to the Treaty of Kabul of 1921 concluded between Great Britain and Afghanistan.519 But these were not, in Waldock's eyes, sufficiently serious to be taken as challenges to the general proposition. Indeed, he was to note that in quite a number of the disputes, such as those between Morocco and Algeria,520 between Surinam and Guyana,521 between Venezuela and Guyana, and between China and several of its neighbours (including Burma, India and Pakistan)522 the point in contention was either that the boundary treaty in question left the course of the boundary in doubt, or that its validity was questionable (owing to inequality, incapacity of the parties etc).523 Waldock was thus able to conclude that the ‘weight of evidence of State practice and of legal opinion’ was clearly ‘in favour of the view that in principle a boundary settlement is unaffected by the occurrence of a succession of States’, and that boundary settlements had thus to be excepted from the moving treaty-frontier rule and from the clean-slate principle.524 That the practice was probably equally amenable to the conclusion that boundary agreements survived only with the actual or tacit acceptance on the part of the States concerned was carefully avoided.525
Having thus assumed a position which, for most purposes, was in line with nearly all contemporary scholarship, Waldock proceeded to add two notes of caution. First of all, in maintaining that boundary settlements were ‘unaffected’ by a succession of States, he made it clear (perhaps in deference to the concerns expressed in the General Assembly's Sixth Committee)526 that this did not have implications as regards ‘any other ground of claiming the revision or setting aside of the boundary settlement, whether self-determination or the invalidity or termination of the treaty’.527 The ‘mere occurrence’ of a succession of States would (p.184) be considered thus, ‘neither to consecrate the existing boundary if it is open to challenge nor to deprive it of its character as a legally established boundary, if such it was at the date of the succession of States.’528
Just as much as a fully delimited boundary would be unaffected by a succession of States, so also would the various claims in relation to a disputed boundary remain untouched by the same event.529 Whilst there was some undoubted sense in this, there was also a degree of equivocation in relation to the issue of self-determination which, however politically appealing it might have been to various sections of his potential audience, could also be seen to be fatal to his argument. If the principle of border stability was open to challenge on the basis of self-determination, inequality, lack of capacity, or anything else, then precisely what was being guaranteed? Certainly one might argue, in an abstract sense, that a change in sovereignty in itself was not reason enough to warrant the overturning of boundary settlements, but the real issue as many saw it, was that in the context of decolonization at least, a change of sovereignty meant self-determination. Guaranteeing the intangibility of border settlements at the same time as recognizing the possible validity of challenge by reference to the principle of self-determination was really to re-enact (albeit within a formal framework of presumption and rebuttal) the old opposition between peoples determining the future of territory or vice versa.
A potential explanation for Waldock's attitude, in this respect, was that he was thinking of border settlements in a particular way. A border, of course, can be understood in at least three different ways: one as a physical line on the ground, policed and maintained by agents of coercion; another as a jurisdictional limit demarcating the formal legal parameters of sovereign power; yet another as delimiting the outer limits of a political order the compass of which defines the identity of the ‘sovereign’ (in the sense of who may participate in that political order).530 For Waldock, the border seemed to represent either the first or second of these conceptions – it was something largely incidental to the question of identity and whose location could plausibly be argued about in terms of the ethnic, religious, or cultural identity of the inhabitants on either side (ie self-determination), but which did not in any obvious way, put in question the identity of the ‘sovereign’ whose authority it apparently delineated. Had he considered, however, that the border also had significance as regards deciding ‘who the people were’ for purposes of articulating claims of sovereignty (even if only by reference to the doctrinal significance of territory as a formal ‘condition’ for statehood), the (p.185) incompatibility between self-determination and border stability might have been more evident. In any event, however, it may have been the case that Waldock ultimately believed that self-determination arguments (as with arguments concerning inequality in relation to colonial treaty-making) were unlikely to find much legal or political purchase in the newly decolonized world. The open arbitrariness that underpinned many of the border settlements in Africa and Asia (about which few people really disagreed) was such as to offer nearly every newly emergent government a potential grievance against its neighbours; and in the process was also to create a continuing sense of insecurity.531 Only the most brave or foolhardy of the emergent elites were to wage a campaign seeking to redraw the map of Africa or Asia.532
The second point Waldock was to make in respect of the principle of boundary inviolability was that he was unsure whether the rule should be framed in terms relating to the boundary treaty rather than the ‘legal situation established by the treaty’. As suggested above, it was the view of some (Castrèn for example) that the rationale for boundary continuity was related to the fact of treaty-execution (evidenced, perhaps, in the presence of border guards, immigration officials, customs regimes and the paraphernalia of border control). For such scholars, there would be no question of succession to the treaty itself, but only to the facts pursuant to its implementation. Whilst seeing some merit in this point of view, Waldock was also concerned that it could also be ‘somewhat artificial’.533 In certain cases, he suggested, a boundary in thinly populated territory may not have been ‘fully demarcated’ and in which context recourse would have to be made to the treaty for purposes of ascertaining the boundary. Further than this, some boundary treaties might also have ancillary provisions intended to form a ‘continuing part of the boundary régime’ suppression of which would materially change the boundary settlement (he had in mind, perhaps, the example of the Somali grazing rights in its dispute with Ethiopia).534 Although Waldock clearly (p.186) thought that the idea of a boundary régime should not be confined merely to the fact of ‘demarcation’, he left the matter open in his report to the Commission.
In the Commission's discussion, the majority expressed its almost unanimous support for a rule securing the continuity of boundaries established by treaty,535 albeit that there was disagreement as to whether one might effectively sever the boundary from the legal framework within which it was secured.536 For some, the issue would be best expressed in the form of a ‘savings clause’537 preventing reliance upon the clean-slate principle as a way of undermining the validity of ‘executed’ boundary settlements. Others, however, emphasized the importance of the treaty as evidence of title538 or were concerned with what fate the pre-existent treaty might be said to have.539 In the event, the Drafting Committee convened during the 1972 meeting, produced the final text of a savings clause (later to become Article 11 of the Convention) which largely satisfied the different constituencies of opinion. It provided, in brief, that a succession of States should not affect ‘a boundary established by a treaty’ or indeed rights and obligations established by treaty relating to the régime of a boundary.540
Predictably enough, the matter was to become the subject of heated discussion when States themselves were consulted on the issue. Some, such as Afghanistan,541 Romania,542 Zambia,543 Morocco,544 and Somalia545 opposed the draft article on the basis that, since most such boundaries had been constructed for the convenience of the Colonial powers rather than by reference to geographic or ethnic considerations, their preservation infringed both the right to self-determination and the contractual freedom of new States. Others, by contrast, saw the principle as indispensable for the preservation of international peace and tranquillity, and regarded the question of self-determination as strictly irrelevant.546 As expressed by Guyana ‘[t]he principle of self-determination could not be extended to the point of removing the very foundation of the existence of the new State from the moment of its creation’.547 Vallat, pursuing the general line of Waldock's argument was not persuaded to reconsider the draft. For him, the point was not whether a coherent rationale could be agreed upon for purposes of justifying the (p.187) continuity of boundary treaties,548 or a matter of seeking to reconcile the principle of self-determination with border stability.549 Rather, it was simply a case of recognizing the great ‘disturbance to international relations that might follow from … a right of unilateral repudiation’ of existing borders.550 This argument of general policy, or ‘practical politics’ was the one that ultimately won the day, and Waldock's draft survived largely intact to become Article 11 of the 1978 Vienna Convention.
b) Territorial Agreements
In some respects, Waldock's thinking as to the character of boundary régimes led him naturally into the broader topic of ‘territorial treaties’, but on this subject he was clearly moving into more troubled waters.551 An evident problem in this respect, and one that had exercised international lawyers for some considerable time, was the historic association of this kind of agreement with the Roman law doctrine of ‘servitudes’ (which foresaw specific rights in a ‘servient’ estate being impressed in the owner of a ‘dominant’ estate).552 For many, the language of servitudes was problematic. On one part, it relied rather too heavily upon the ‘domestic analogy’ assuming, in the process, a neat equation between the power exercised by a sovereign in relation to territory, and that exercised by an individual in relation to property.553 (p.188) On another, the ideas of ‘dominance’ and ‘subservience’ upon which the concept relied, appeared incompatible with the UN Charter's commitment to sovereign equality.554 Even for those somewhat sympathetic to the idea, the term was ‘ugly’ on the ear.555 In those cases in which the issue had been discussed before international courts and tribunals, furthermore, recognition of the existence of ‘servitudes’ as such had been studiously avoided. Thus, in the North Atlantic Fisheries case, the Tribunal rejected the US contention that fishing rights granted to it by Britain under a Treaty of 1818 amounted to a servitude; they were, rather, economic rights of a personal nature. Similarly, but to different ends, the Permanent Court refused to rely upon the concept in both the Wimbledon case556 and the Free Zones case,557 as did the Committee of Jurists in the Aaland Islands case.558 In the latter, as noted above, the Committee went so far as to say that ‘the existence of international servitudes, in the true technical sense of the term, is not generally admitted’.559
But for all the evident objections to the concept of ‘international servitudes’, international lawyers were apt to regard the underlying problem as fundamentally linguistic.560 The issue was not, in other words, that it was impossible for territory to be indelibly stamped with certain obligations in favour of other States, but rather that the term ‘servitude’ was ‘not the most satisfactory for defining the character of a real right in international law’.561 There were, in the view of most, at least some territorial obligations that would come to inhere in territory (and hence survive a succession of States), albeit the case that it was ‘impossible to say with precision which rights and obligations would be inherited automatically and which would not be’.562 A typical list from the time would have included obligations (p.189) concerning navigation,563 irrigation,564 fishing,565 rights of way,566 demilitarization,567 non-fortification,568 and neutrality.569 In some, furthermore, capitulation agreements570 and agreements establishing rights in relation to foreign military bases571 might also have been mentioned.
In his survey of practice (much of which was taken from O'Connell) Waldock was to note a number of historic instances of practice confirming the permanence of rights and obligations associated with territory. These included British rights of navigation on the Mississippi under the Treaty of Paris 1763 which remained in force on the transfer of Louisiana to Spain;572 Iraq's succession to Turkish rights over the Shatt-el-Arab waterway under the Treaty of Erzerum of 1847 between Turkey and Persia;573 France's succession to provisions relating to the neutralization of Chablais and Faucigny under Article 92 of the Final Act of the Congress of Vienna of 1815;574 and Egypt's succession to obligations under the Convention of Constantinople of 1888 in respect of the Suez Canal.575 The latter two instances concerned regimes establizhed as part of some ‘international settlement’, the significance of which had been emphasized in the Free Zones and Aaland Island cases as well as by Judge McNair in his dissenting opinion in the Status of South West Africa case of 1950.576
(p.190) At the same time, however, Waldock was also to note several instances of practice that struck a dissonant chord. In case of the lease by Belgium of port sites in Dar-es-Salaam and Kigoma under agreement with Britain in 1921 and 1951 (the ‘Belbases Agreements’),577 the Tanganyikan government had declared that a lease in perpetuity of this nature was incompatible with the sovereignty of Tanganyika.578 Tanganyika also declined to consider herself bound by the Nile Waters Agreement of 1929 between Britain and Egypt and was joined, in this respect, by Sudan.579 Israel had repudiated, in line with its general stance in relation to all questions of succession, any responsibility under the Anglo-French agreements of 1923 and 1926 in respect of use of the waters of the River Jordan, and the various newly independent riparian States had abrogated the terms of the Berlin Act of 1885 and the Convention of St Germain-en-Laye of 1919 as regards the regimes of free navigation established for the Congo and Niger rivers.580
Waldock's pursuit of some conclusion, however, was to lead him to undermine systematically the force of all of these apparent ‘exceptions’. The Tanganyikan opposition to both the Belbases and Nile Waters agreements were premised, in his view, on the incapacity of the British government as Mandatory authority to bind the territory for the future.581 Israel's opposition to the Anglo-French agreements was simply a reflection of its unwillingness to consider itself a successor State at all,582 and the position adopted by the riparian States in relation to the Berlin Act was constructed on the basis of the doctrine rebus sic stantibus rather than non-succession.583 Lest he be accused of relying too heavily upon several fine points of judgment, however, Waldock was to come to the conclusion that the exception to the clean-slate principle:
(p.191) As with boundary treaties, Waldock subtly pushed the Commission to consider the question in terms of whether it was the treaty régime which continued in case of succession, or rather the customary rights and obligations that might have emerged consequential to implementation of the treaty (along the lines by which the ICJ approached the Portuguese claims in the Right of Passage case).585 Predictably enough, the Commission was divided on the issue – some taking the view that such a régime could not survive without the treaty;586 others, that there could be no survival of the treaty but only of the rights and obligations created by its execution.587 In this case, the Commission adopted a text largely along the lines of the latter, providing that a succession of States should not affect obligations or rights established by treaty relating to the use of territory whether that be for the benefit of one particular territory, a group of States or all States.
seems to be limited to cases where one State by treaty grants, in respect of its territory or a particular part, rights of user or enjoyment [sic], or rights to restrict its own user or enjoyment, which are intended for an indefinite or for a specified period to attach to the territory or particular parts of the territory of another State rather than to the other State as such, or, alternatively, to be for the benefit of a group of States or of States generally. There must, in short, be something in the nature of a territorial settlement.584
Whilst there was almost unanimous endorsement within the Commission for the idea of the survival of territorial régimes in case of succession, it was also clear that this had been achieved by way of leaving unspecified the kinds of régime in question. References to agreements such as the Nile Waters Agreement of 1929, the Suez Canal Convention of 1888, the Lateran Treaties or the Belbases Agreements, provided some sense of the parameters of the idea, but in some respects it was the agreements that were not mentioned or discussed at any great length that stood out. The survival of military base agreements was obviously one,588 but so also was the historic category of capitulations.
Capitulation agreements had assumed a central role in European relations with the North-African and Asian world over the previous three centuries and were typically characterized by the establishment, in favour of Western powers, of extraterritorial rights and consular jurisdiction within those territories.589 By the early 20th century, however, many such régimes had been terminated or renegotiated and it may have seemed to Waldock, that there was little to be gained from addressing the issue.590 But it was evident to others, nevertheless, that practice in relation to such agreements was significant. O'Connell, for example, was to maintain in both his 1956 and 1967 monographs on State succession that the historic survival of capitulation régimes in case of change in sovereignty was such as to exemplify the possible extension of the category of real rights ‘to other types of privileges accorded by treaty’.591 In this re-formulation, the doctrine of real rights (p.192) would thus become ‘a potential instrument for compelling a State to acknowledge the contractual relations of its predecessor when justice demands it’.592
On O'Connell's side was the fairly consistent practice, on the part of the US and Britain in the early 20th century, in insisting that changes in the status of dependent territories would not affect extraterritorial rights under capitulation agreements if they were to become independent. Thus, although the Ottoman capitulations had been suspended in case of Iraq and Palestine during the period of British administration under the Mandate system, the general assumption was that on termination of the Mandate, those rights would require explicit renunciation. Part IV of the Partition Plan for Palestine, for example, provided that
It was assumed, in other words, that if a territory were to fall under the control of a ‘civilized’ power,594 pre-existent extraterritorial privileges would be suspended (or even terminated), but if independence were subsequently to be gained, such privileges would revive automatically albeit the case that they were thence open to renunciation or re-negotiation.595
States whose nationals have in the past enjoyed in Palestine the privileges and immunities of foreigners, including the benefits of consular jurisdiction and protection as formerly enjoyed by capitulation or usage in the Ottoman Empire, are invited to renounce any such right pertaining to them to the re-establishment of such privileges and immunities in the proposed Arab and Jewish States and the City of Jerusalem.593
The significance of this residual doctrine concerning the survival of capitulation agreements was not, as O'Connell suggested, found in the fact that it seemed to ‘extend’ the notion of real rights, but rather that it made clear the relationship between a rhetoric of ‘real rights’ on the one hand, and an implicit bifurcation between the ‘civilized’ and ‘non-civilized’ worlds on the other. Admittedly it was rarely cast in such terms, but it was clear that the very framework of extraterritoriality was embedded in deeply entrenched perceptions as to the inadequacies of culturally specific modes of local administration or justice for which the terms ‘civilized’ and ‘uncivilized’ were a not an infrequent shorthand. The key was, however, that the survival of such capitulation régimes depended as much as anything upon who it was who would be doing the inheriting, and who might stand in the same sense on the side of ‘justice’. This was not something reducible to the abstract idea of sovereignty or indeed to a rule of inheritance governed solely by the terms of the agreement, and does much to explain what might otherwise have seemed a fairly inconsistent array of practice.
(p.193) The point to be drawn from this is that the historic association of the idea of territorial régimes, on the one hand, with systemic notions of dominance and subordination on the other596 was one that coloured almost every instance of practice. For the most part the régimes in question had been put in place either as part of what might be referred to now as an imperial development project (Suez and Belbases) or as an expression of the superintendent authority of the Great Powers (Aaland Islands and Kiel Canal). Their survival was thus dependent either upon those agreements being read as favourable to the territory itself, or, and more commonly, as being in the interests of the ‘international community’. This diffusion of particular State interests into the interests of the international community, of course, could always be seen to be a useful ideological subterfuge.
The general matter was to arise in a somewhat veiled way in Vallat's First, and final Report in which he sought to respond to remarks made by both Czechoslovakia and the GDR, both of which asserted that the draft article should not be used to justify the existence of territorial régimes based on ‘unequal treaties’. They had suggested the inclusion of a clause limiting the application of the provision to territorial régimes that served the interests of international cooperation and were in accordance with the purposes and principles of the UN Charter.597 Vallat's response, here, was to argue that a distinction had to be maintained between ‘the validity of the treaty creating a territorial régime and the nature of the régime itself’.598 As regards the nature of any such agreement, the matter would be regulated by Article 103 of the Charter so that in case of any conflict, the latter would prevail (even if it meant that the treaty would become ‘inoperable’). As regards its validity, by contrast, it would be a matter determined by the normal rules of international law relating to treaties (as expressed, for example, in the 1969 Vienna Convention).599 Vallat's response, no doubt, was well formulated, but it did raise obvious questions as to what kinds of regimes could properly be regarded as ‘territorial’ for such purposes, and as to whether the problem of unequal treaties had indeed been adequately addressed within the Vienna Convention of 1969. On both scores there were issues to address. In relation to the scope of the provision, the Netherlands government had already suggested that the reasons justifying the continuation of territorial arrangements could also apply to treaties protecting minority rights, rights of nationality or treaties protecting the rights and freedoms of the population in general.600 Vallat's answer, here, was that this went ‘well beyond the type of territorial régime to which’ the article related:601 but, of course, that only begged the question as (p.194) to what that ‘type’ was. As regards the issue of the validity of ‘unequal treaties’ it was by no means clear that the Vienna Convention did, in fact, prohibit the ‘imposition’ of treaties, or allow for the denunciation of such agreements already in situ.602
10. Final Moves: The Vienna Conference
By the end of its session in 1974 the Commission was able to submit to the General Assembly a set of final draft Articles with the exclusion of two matters which had only lately come before it: one concerning multilateral treaties of a universal character, and one relating to the settlement of disputes.603 The draft consisted of 39 articles divided into five parts. Part I comprised of general provisions dealing with the scope of the provisions (Articles 1, 3, and 6), definitions (Article 2), its temporal applicability (Article 7) and other rules of a general character such as those governing succession to constituent instruments of international organizations (Article 4), devolution agreements (Article 8), unilateral declarations (Article 9), treaties providing for succession (Article 10), boundary treaties (Article 11) and ‘other territorial régimes’ (Article 12). Part II consisted of a single Article (14) dealing with succession in respect of part of a territory (ie cession). Part III covered provisions relating to newly independent States (Articles 15–29) in which the general principle of the ‘right of option’ was elaborated in detail – with provisions inter alia concerning treaties not yet in force, reservations, the effect of notification, and provisional application. Part IV contained provisions relating to the Uniting (Articles 30–32) and Separation (Articles 33–36) of States, and Part V ‘miscellaneous’ provisions relating to ‘cases of State responsibility and outbreak of hostilities’ (Article 38) and cases of ‘military occupation’ (Article 39).
In submitting the draft articles to the General Assembly the ILC offered to return at the following session to complete the final articles, but that offer was declined by the General Assembly which was keen to expedite the completion of the drafting process by way of convening an international conference for purposes of concluding a Convention on the subject. This was duly organized and the United Nations Conference on Succession of States in Respect of Treaties was convened in Vienna from 4 April to 6 May 1977 and, having not completed its work, again from 31 July to 31 August 1978. At the end of the second meeting, the draft Convention was opened for signature and ratification… . Thirteen States immediately put their name to the text. For the most part, the Convention followed the terms of the 1974 ILC draft, and final modifications were few in number. Indeed, in several respects it was the late additions made to the draft at the Conference that have subsequently been the cause for greatest concern.
(p.195) As has been noted,604 there were four main issues which gave rise to the most extended discussion at the Conference: 1) the temporal application of the Convention; 2) the recognition given to boundary and territorial regimes and their relationship to the principle of permanent sovereignty over natural resources; 3) the question of secession (separation of parts of a State); and 4) the provisions relating to dispute settlement. Of these, the first and last will be dealt with in relatively short order. As regards the question of its temporal application, the position adopted by the ILC in its 1974 draft (Article 7) had been that the articles would ‘apply only in respect of a succession of States which has occurred after entry into force of these articles except as otherwise agreed’. This was a provision that had been proposed at the instigation of Ushakov605 whose overt concern had been to prevent the Convention from being relied upon for purposes of validating the continuance of historic agreements marked by conditions of inequality. But the principle of non-retroactivity raised the obvious problem that the only way in which the Conventional provisions (as opposed to rules or principles in customary international law) could come to be applicable to a new State, would be by means of that State ‘agreeing otherwise’.606 In such a case, the Convention itself would seem to have limited value. Despite this, the Conference found no obvious way of sidestepping the problem: deleting the provision would not have avoided the general principle of non-retroactivity that was already enshrined in Article 28 of the Vienna Convention on the Law of Treaties; providing for retroactive application would have risked the re-opening of historic grievances.607 The final text adopted at the Conference thus merely fleshed out the substance of Ushakov's proposal in a series of paragraphs, the substance of which provided that a successor State might make a declaration accepting the application of the Convention in relation to its own succession (effective in relation to other States choosing to accept that declaration).
In relation to the question of dispute settlement, although it was an issue that had long been flagged as one with which the ILC should deal, it was ultimately left to one side for lack of time. It was at the Conference, therefore, that the matter was fully discussed for the first time. Two proposals had been put forward – one by the United States608 providing for compulsory arbitration (but allowing States to ‘opt out’); the other by the Netherlands609 providing for submission (p.196) to arbitration or to the ICJ. After some discussion in which a range of different views were fielded – some of which recommended diplomatic negotiation, some conciliation, and some of which supported the proposal for compulsory arbitration – a working group produced a draft text that was finally adopted by the Conference and came to form Articles 41–45 of the Convention. These provide for a process of consultation and negotiation and following that, conciliation along the lines of the procedure annexed to the Vienna Convention on the Law of Treaties (1969) with the possibility of consensual resort to judicial settlement or arbitration. To this day, those procedures have not been invoked.
These two points aside, it is clear that the most significant aspects of the work of the Conference related to its consideration of boundary and territorial régimes and secession. Although there was considerable discussion of the provision relating to boundary régimes (with strong opposition from both Afghanistan and Somalia both of which had outstanding disputes with their neighbours), this provision obtained overwhelming support. As in the ILC itself, however, it was the provision relating to territorial régimes that was more problematic, with particular concerns being raised as regards the extent to which this might justify the continuation of foreign military base agreements and agreements for the exploitation of natural resources. As noted above, neither of these issues had been discussed at any great length within the Commission – a point which Vallat took as indicative of the fact that the ILC had not intended for either category to be regarded as constituting a territorial régime. Whilst there was little overt support for the continuance of military base agreements (to the extent that this did not extend to provisions relating to demilitarization)610 there was less clarity as regards the implications of the principle of permanent sovereignty over natural resources. Some States, such as the UK and the USA, maintained that since many such agreements would seem to involve relations between what had become two newly independent States, any reference to the principle of permanent sovereignty over natural resources was largely irrelevant.611 Underlying the dispute in this regard, as Sinclair put it, was ‘the long-standing controversy concerning the relationship between the principle of permanent sovereignty over natural resources and international law itself ’.612
The point to which Sinclair alluded was illustrated by a Statement of the UK in relation to a proposal for the inclusion of a savings clause stipulating that nothing in the Convention should ‘affect the principles of international law affirming the permanent sovereignty of every people and every State over its natural wealth (p.197) and resources’.613 The UK delegation, affirming its adhesion to the principle of permanent sovereignty as spelt out in GA Resolution 1803(XVII), made clear nevertheless that ‘its application was governed by the principles of international law which, in the final analysis, ought to be able to resolve any possible conflict between the principle of permanent sovereignty and other concepts, such as that of acquired rights’.614 What the UK was alluding to in its reference to acquired rights, was the conflict that had surrounded recognition of the principle of permanent sovereignty as regards the level of compensation payable as a consequence of the ‘expropriation’ or ‘nationalization’ of foreign-owned undertakings or their property.615 To some in the West, the assault upon the principle of adequate (or even ‘appropriate’) compensation of foreign owners in case of expropriation – as seemed to be evidenced in the rather equivocal obligation articulated in the Charter of Economic Rights and Duties of States – was tantamount to a rejection of international law. But what obviously went unmentioned, here, was that the very survival of rights and obligations under concession agreements in case of succession was itself a point over which there were clear differences of opinion. In order for a ‘foreign’ investor to claim compensation for loss of rights under an agreement concluded with the former colonial authorities, it had to be assumed that the agreement itself would have survived the transition to independence: compensation was dependent upon a prior claim to ownership. Despite the fact that there were only few instances in which such agreements were repudiated at the time of independence, and for all the ‘traditional’ insistence upon the intangibility of acquired rights, the debates within the ILC in the 1960s made very clear that this was not an assumption that could lightly be relied upon. In the event, however, the provision relating to permanent sovereignty was adopted by the Conference and was to become Article 3 of the 1978 Convention.
The final, and particularly controversial, issue raised at the Conference concerned Part IV of the ILC draft dealing with rules applicable in relation to the uniting and separating of States. As has been seen, the Commission found itself in an increasingly difficult position in attempting to differentiate between cases involving the emergence of a ‘newly independent State’ (for which a right of option was available), and ‘other’ cases of separation (for which a rule of continuity was applicable). In order to ameliorate the effects of this sharp distinction, the Commission had included in its final draft an exception to the principle of ipso iure continuity in case of the separation of a State (Article 33(3)) which read: ‘Notwithstanding paragraph 1, if a part of the territory of a State separates from it and becomes a State in circumstances which are essentially of the same character as those existing in the case of the formation of a newly independent State, the (p.198) successor State shall be regarded for purposes of the present articles in all respects as a newly independent State’.
When the matter came under discussion at the Conference, two States (France and Switzerland) had put forward amendments seeking to eliminate the distinction that had been erected by the Commission between the two categories of secession. These were opposed on one side by those who were worried about the implications of conflating these categories in terms of encouraging secessionist groups, and on the other side by those who believed that it might undermine or downgrade the significance of the decolonization process itself. The implication of both positions, of course, was to cabin the principle of ‘self-determination’ in the draft to the context of decolonization. In the end, with the rejection of the Franco-Swiss amendments, so also was Article 33(3) deleted from the Convention leaving in its wake a very stark differentiation between colonial and non-colonial secession.
11. Reception and Reflection
Just as only a handful of States proceeded to sign the Vienna Convention of 1978, the reception it was given amongst the academic community was also largely mixed. The adoption of the Convention encouraged the production of a spate of articles and books on the topic many of which rehearsed lines of thought that had been debated at length within the International Law Commission.616 Many authors spoke about the Convention as a kind of inevitable compromise: some saw it as seeking to ‘balance’ irreconcilable interests by resort to flexible (p.199) provisions,617 others saw it in terms of a ‘package deal’, accommodating through abstract principles the conflicting interests of old and new States.618 Others still saw the resort to ‘selective precedents and flimsy doctrine’ as an attempt to camouflage, or overcome, underlying political and ideological dissent.619 The sense, for the most part, was that the project of codification would naturally assume a compromised character (particularly given the sharply ‘divided’ views of different States on the question of succession) and that this was simply an inevitable consequence of the process of codification.
By no means every aspect of the Convention was subject to criticism. A good number, for example, praised the ILC's commitment to the continuity of boundary and territorial treaties620 even if the conclusion of Article 14 (a savings clause specifying that nothing in the Convention should be taken as ‘prejudicing in any respect any question relating to the validity of a treaty’) was such as to introduce an unworkable level of uncertainty into the issue.621 Others praised the adoption of a rule of continuity in the formation and dissolution of unions of States, suggesting that this was a mark of ‘innovation and courage’.622 Few, however, stood out in support of the principles enunciated in respect of new States, and, commentators were largely unanimous in the view that the Convention seemed to be ‘too much concerned with past problems bound up with the process of decolonization, and too little concerned with present or future problems’.623
The most intemperate of commentators by some degree was O'Connell, and it was his critique of the methodology and structure of the Convention that was both most acutely observed and challenging. O'Connell's central complaint was that the Conference had given ‘scant indication’ of any awareness of the fact that State succession to treaties was ‘a matter of great intellectual, and hence of doctrinal, subtlety’.624 It had, in his view, forced the topic ‘within the constraints of inflexible dogmas that are at once over-simple and insufficiently comprehensive’.625 The example he took to illustrate this point was the separation of Bangladesh from Pakistan. If, on the one hand, that separation was taken to be (p.200) a case of secession (the emergence to independence from a condition of dependency) then Waldock's version of the clean slate would be applicable (Articles 16 and 17). If, on the other hand, it was to be characterized as the ‘dissolution of a federation’, the presumption would be that treaties would automatically continue (Article 34).626 O'Connell was to point out, however, that neither solution would have been politically attractive. On the one hand
if Bangladesh chose to argue its case on the basis of secession that would have compromised its claims to a share of Pakistan's assets, including gold in the World Bank, and would have affected court actions which were launched in various countries to recover private property which had been subjected to Pakistan decrees during the liberation war.627
If, on the other hand,
Bangladesh chose to argue its case on the basis of the dissolution of the Federation of East and West Pakistan, it feared to be held liable to Pakistan's treaties. For, as a provincial government it had not even a list of these, let alone the texts… . Until several hundred treaties were identified, collected and examined it was not even possible to ascertain what the issues were for a policy decision, and … [in the event] it took three years to do so, by which time the whole matter had become past history.628
Although O'Connell ultimately took the view that the separation of Bangladesh had involved the dissolution of a federation, his concern was that the issues were ultimately compromized by the government's vacillation on this issue which facilitated decisions being made ‘for it from outside’.629 The point, however, was not that Bangladesh was to be blamed for its ambivalence, but that the inflexible framework of the Convention had forced it into such a position. It was surely nonsense, O'Connell maintained, to force a State like Bangladesh to adopt a position in which it ‘inherits all or none of the treaties that previously applied to it’.630 Common sense would surely suggest the best solution to be something in between, and the determination of that would be ‘a matter of juristic function, not of legislative intervention’.631
The root cause of the problem, as O'Connell and others were to maintain, was the ILC's adoption of the clean-slate rule in case of newly independent States. In that context, the ILC had set aside ‘reason’ in favour of an approach formed within the ideological milieu of decolonization632 ‘around which’ as O'Connell was to put it ‘myth and emotion [had] accumulated like mists in the marsh’.633 (p.201) This was evidenced, as far as O'Connell was concerned, in Waldock's slapdash methodology. The opinions of writers were referred to in an ‘old-fashioned’ form of ‘head count’ with no discrimination for specialist expertise and no appreciation that many such authors might have simply copied one another. Many instances of practice were lumped together despite their obvious dissimilarities, and little attention had been given to the very different circumstances that attended decolonization when compared with cases from the 19th century (the emergence of multilateral law-making treaties).634 O'Connell also suggested that the proposed rule neither accorded with State practice during decolonization, nor was it consistent with the basic rule of consent in treaty law.635 Ultimately, he reprised the position that he had favoured at least since 1962, to the effect that it would have been better to adopt a rule of continuity subject to the possibility of denunciation (either by way of treaty provision or by reliance upon the principle pacta sunt servanda).
What is most interesting about O'Connell's critique, however, is not his comments on methodology which only raise themselves a host of ensuing questions as regards how one should go about dividing the practice in a way that did not rely upon suppositions concerning the significance of ‘personality’ or a particular approach to decolonization. Nor is it his advocacy of treaty continuity – which in many respects did not entirely respond to the issues he raised in the case of Bangladesh. It is, rather, his observation that, in the latter case, the government was deeply ambivalent as to whether to pursue a general policy of continuity or discontinuity, and the relationship that appeared to exist between different issues – the preferred approach to treaties (wait and see) being at odds with the desire to inherit its share of the patrimony of the federation. This obviously raised questions as regards both the ILC's approach to treaty succession and O'Connell's own approach to continuity.
One of the very evident features of this story of codification is how, gradually, the topic became more complex and more involved, and yet, at the same time, more abstract and contemplative as it progressed. What, at the outset, had been a fairly concrete project concerned with supplementing existing rules of treaty law became, towards the final stages, a project mired in discussions as to whether cases such as that of Bangladesh would have more in common with decolonization than with the dissolution of a union of States, and whether all cases of unification were likely to take the form of that of the United Arab Republic. By the end, too much seemed to be asked at too great a level of generality, for views to harden in one direction or another. But at the same time, there seemed to be (p.202) an unwilled momentum, or gravitational pull, that took hold of the project once underway. Waldock's initial reluctance to look beyond the terms of the law of treaties and his similar equivocation over the significance of self-determination gave way in the later stages to a much more active contemplation as to what each might signify. What this spelled out, at the very least, was the obvious inability of those involved in codification, to deal with the problem of succession in a way that did not draw within it questions of identity and status, or conclusions about the relationship between international and municipal law.
What observations might, in general, be made about the project? There is no doubt that Waldock's approach to the process of drafting articles on succession in respect of treaties, as critics such as O'Connell were at pains to point out, was one marked by all the obvious methodological frailties associated with attempting to locate normative propositions in empirical observation. At moments, he was clearly highly selective in his choice of examples, at others, willing to identify practice as essentially inconsistent in order to make space for arguments of policy. At some points he was forensic in his attention to detail, at others, capable of wielding the broad brush. On some occasions, context was all important, on others largely irrelevant. But these, it must be said, were not problems peculiar to this particular project of codification. They were simply parts of a process of legal argumentation by which those such as Waldock (and, in his own work, O'Connell) sought to locate their normative intuitions in something other than personal taste or outlook. There was nearly always State practice to hand, but the key question was always about how to organize and interpret that practice and to determine what analogies might be used.
The central theme running through the whole process of codification, of course, was the place assumed by decolonization within it. It was evident to many from the outset that there was an inevitable tension between the idea of seeking to codify and develop rules of succession to govern future cases of political transformation, at the same time as concentrating upon the particular experience of decolonization whose course was almost run. There were those in the Commission –including Waldock and Ago – who clearly believed decolonization to be in no respect markedly different from other cases of separation or secession, and who thereby appeared to assume that the implications of self-determination were not confined to events in that particular era. But the effect of the Conference's decision to remove the qualifying clause within what became Article 34 (relating to cases ‘analogous’ to decolonization) was to concretize a sharp distinction between the colonial experience on the one hand (in which the principle of self-determination would be operative) and other cases of secession. Here one was to find in very concrete form an idea that was only otherwise hinted at in the practice of the UN, that self-determination was a principle whose content really varied quite starkly depending upon whether the relations in question assumed the aura of ‘colonial’ relations or not. That such an insight may now be thought mundane, is as much testament to the largely superficial equation of imperialism (p.203) with ‘formal’ colonial rule, as it is with the idea that only some, but not all, might have a right to independent self-government.
There was obviously a considerable degree of commonality amongst members of the Commission and other commentators at the time that colonialism connoted a very specific experience discrete in both time and space. This idea itself was obviously problematic given the very different experiences of decolonization in different parts of the world, and given the time span over which it occurred. But even with this common starting point, there were obvious differences between the various scholars as regards the implications of decolonization. On the one side there were those, like O'Connell, Rosenne, and Keith who understood decolonization as a largely ordered process of governmental devolution characterized by high degrees of legal continuity at both the local and international level (indeed, on some accounts, these processes were closely intertwined). On the other side, there were the likes of Lester, Bedjaoui, and to a lesser extent Bartoš, who understood it as a revolutionary moment, the implications of which were to bring about a series of fundamental changes in the structure, process, and content of international law (the fulfilment, perhaps, of the ambitions elaborated in the UN Charter). For the first group, the problem posed by decolonization was essentially that of the potential incompatibility of the new circumstances with existing treaty commitments, and they thus saw the law of State succession as being oriented towards identifying the most convenient method of addressing that issue. This, as it turned out, was to maintain in principle the continuity of existing treaty obligations, but allowed for the possibility of termination, denunciation, or resort to the principle of fundamental change. Underlying this, of course, was a commitment to maintaining the integrity of international legal relations, which they saw to be ultimately challenged by advocates of the ‘clean slate’.
For the second group, by contrast, the object of the law of State succession was not, strictly speaking, to ‘resolve’ the administrative or managerial problems associated with the devolution of authority, nor indeed to uphold the integrity of ‘international law’ in the abstract, but to realize the promise of political and economic self-determination and advance thereby the sundry objectives of what, in some circles, was referred to as the new ‘law of decolonization’. Whatever the merits of maintaining existing treaty relations in place, this was a matter to be decided by newly independent States in their initial engagement with other international actors. For this second group, in other words, the issue was not the nature of the problem, but the question as to who might be entitled to resolve it.
Lying behind both of these accounts were particular constructions as to the relationship between colonial rule and the pre-independence identity of non-self-governing territories. As a way of pushing forward the project of decolonization, the General Assembly had insisted upon the separate legal identity of non-self-governing territories. This, of course, ran in line with both with the ICJ's approach to protected States, and with the general approach to trusteeship. But recognition of the pre-independence identity of those territories ‘destined’ for (p.204) independence was clearly capable of being construed in quite different ways in terms of its implications for the law of succession. On the one hand, and most obviously for some, recognition of the separate identity of non-self governing territories signified a fundamental alteration in the terms of the legal relationship between colonizer and colonized. Colonial territories could no longer be represented as integral parts of the metropolitan State (as many Portuguese colonies appeared to remain for example) and colonial rule was rendered thereby alien, and perhaps occasionally ‘illegal’ in character. From this vantage point, two conclusions appeared to flow. First, it seemed to signify that treaties and other commitments concluded on behalf of those colonies could not survive independence merely by reason that power had been exercised in relation to the territory prior to that moment by the administering authorities. In the second place it also appeared to underpin the idea that the identity of metropolitan territories would remain largely unaffected by the process of independence – the transformation not going so far as to put in question the continuance of their rights and obligations as a consequence of the loss of empire.
On the other hand, the recognition of a pre-independence identity on the part of non-self-governing territories also suggested, to the contrary, that the movement towards independence was indeed gradual rather than sudden; evolutionary rather than revolutionary. If the territories in question already possessed a pre-formed legal identity, it was neither possible to argue that they were entirely ‘new’ at birth, nor that the administering authorities in the intervening time had no competence to transact on their behalf. In formalizing the relationship between colonizer and colonized, albeit in terms of alien occupant and subaltern populace, the General Assembly had appeared to regularise a relationship of authority and responsibility which could thereafter be taken as framing the terms under which independence was ultimately to be gained. The colonized territory might be said, thus, to have been called (interpellated) into the order of international law from which it was never destined to escape.
Here, of course, was the essence of the dilemma. Those pushing through what they took to be the logic of emancipation were unable to ignore the fact that the ascription of identity to those destined for independence was to disallow speaking about decolonization as something that had simply happened. Decolonization could not be understood merely as ‘fact’ to which scholars and practitioners attached certain consequences, nor indeed as a process of de novo self-determination, but as a regulated process by which the complex set of background legal relations were re-adjusted and re-ordered. This is clear in relation to the arguments concerning the executed effect of boundary and territorial regimes, it is also clear in respect of Waldock's formulation of the clean-slate principle. If a new State claimed a right of option in relation to pre-existing treaties, it did so under impress of a legal authority that simultaneously recognized its right of autonomous decision making, and the existence of a legally relevant and pre-existent bond between it and other treaty (p.205) partners. No State, as some were to aver, could ever be regarded as entirely ‘new’ – they were always the progeny of a super-ordinating system of international law.
The idea, thus, that decolonization operated through pre-existent categories was, ultimately, thoroughly normalizing. What might have been cast as a revolutionary moment, a moment of expansion and change in international society, was immediately subverted by the idea that the sovereignty being obtained, was not a law-creative sovereignty, but a capacity already fully determined. When seen in that light, the arguments about the inheritance or otherwise of treaty obligations could not be fully described in terms of a commitment to, or disregard of, international law, any more than would arguments about the legitimacy of treaty denunciation or the invocation of the principle of a fundamental change in circumstances. All were, from one side at least, merely ways of qualifying what pacta sunt servanda might mean. In similar guise, when seen as a question of succession, the old opposition between self-determination and uti possidetis lost its decisive import by reason of the impossibility of self-determination meaning anything but independence within inherited borders – once the ‘self’ had been identified, any determination could operate only within the parameters of its own existence.
The normalizing effect of this approach to succession also meant that the arguments about inheritance were inevitably profoundly equivocal. It was always evident, for example, that with every argument in favour of the ‘clean slate’ went also an argument as to the importance of automatic inheritance to ‘dispositive agreements’, or the desirability otherwise of adhesion to multilateral agreements. Even with the emergence of an entirely ‘new’ subject, there were still legal relations applicable in respect of its territory that were there to be fulfilled. Succession merely indicated a change in the identity of the party responsible. So also, with every argument in favour of continuity, went arguments as to the possibility of denunciation or of open resort to the doctrine of fundamental change. That neither position seemed to be particularly attractive in unqualified form was, in many respects, related to an ambivalence as to the nature of what might, or might not, be inherited. As Bartoš had pointed out, States emerging from colonial rule, would not necessarily take it to be in their best interests to dispose of the entirety of their colonial heritage: certain treaties might have the character of colonial impositions, certain others may be useful or expedient. One could be fairly certain that they would not look upon a foreign bases agreement in the same light as they would an extradition agreement, or automatically accept the continuation of a capitulation regime in the same way as they might a treaty delimiting a border with a neighbouring State. In this regard, Waldock's version of the clean-slate rule was peculiarly attractive. As was made clear, it did not entail an inability to inherit treaties or represent an incapacity to be a successor State. It was, rather, a right to choose what would be inherited and what would not, and was largely premised upon the idea that new States should be encouraged to notify their succession as a matter of policy. It was, thus, by no means impossible that the (p.206) outcome of his proposal would result in precisely the same treaties being subject to succession, as might otherwise have occurred under a rule of continuity. That it was to implicitly recognize both the significance and irrelevance of the relationship between the colonial territory and the former metropolitan power was only such as to affirm the moderated nature of his proposals.
This may all be such as to suggest that Bedjoui's concern as to the neo-colonial nature of the law of succession was, perhaps, overstated – or at least that such arguments did not translate quite so easily into conclusions concerning the survival or otherwise of treaty relations. Yet, at the same time, it was very much apparent that the terms of the debate were still very clear. The 6th Committee's opposition to the category of ‘dispositive agreements’, the Socialist States' arguments about the significance of ‘social revolution’, and Upper Volta's rejection of any succession to international agreements, all made clear the continuing suspicion with which arguments about continuity were held. By the same token, those favouring continuity were rarely short of arguments as to the implications of allowing new States to effectively set aside multilateral humanitarian agreements, or the chaos that might ensue from a disregard for the terms of territorial or boundary regimes. Even if neither side might have obviously triumphed in the articulation of rules relating to new States, the terms of the contestation were rarely far beneath the surface.
(1) D O'Connell, ‘Reflections on the State Succession Convention’ ZaöRV (1979) 725, p 739.
(4) J Crawford, ‘The Contribution of Professor DP O'Connell to the Discipline of International Law’, 51 BYIL (1980) 2, p 31.
(5) Crawford may be said to differ here from O'Connell. See above, p 29.
(6) ‘Survey of International Law in Relation to the Work of Codification of the International Law Commission’, UN doc. A/CN4/1, (5 Nov 1948), reissued under symbol UN doc A/CN4/1/Rev 1, 10 Feb 1949.
(7) His choice of topics in this regard was largely guided by two assumptions. First that the role of the ILC should not merely be confined to the codification of law where practice is clear and well established. Rather, it should also seek to codify subjects that were, in his words, ‘ripe’ for regulation given existing divergences in practice (ibid 60, para 102). Secondly, that the role of the ILC should ultimately be to codify the ‘entirety of international law’ (ibid 61, para 102) – not necessarily overnight, but certainly over the period of two decades. The concern here was to introduce ‘certainty, precision, and uniformity’ in the law which would thereby contribute to the authority of international law, alleviate the task of international tribunals, and remove one of the traditional causes of the unwillingness of States to submit disputes to the compulsory jurisdiction of international tribunals (ibid).
(10) Yrbk ILC (1969) II, p 228, para 68.
(12) J Crawford , The Creation of States in International Law (2nd edn 2005).
(13) Yrbk ILC (1949) p 281.
(14) GA Resn 1686 (XVI) 18 Dec 1961.
(15) Suriname, Mozambique, and Angola (1975), Djibouti (1977), Dominica (1978).
(16) Several members of the ILC were, however, sceptical about the existence of rules of State succession, see eg, Verdross, 632 mtg, 30 Apr 1962, Yrbk ILC (1962) I, p 27, para 52; Waldock, ibid, para 57.
(17) Manfred Lachs (Chairman); Milan Bartoš, Herbert Briggs, Erik Castrén, Abdullah El-Erian, Taslim Elias, Chieh Liu, Shabtai Rosenne, Abdul Tabibi, and Grigory Tunkin.
(18) Tabibi A/CN4/SC2/WP2; Rosenne, A/CN4/SC2/WP3; Castren, A/CN4/SC2/WP4; Bartoš, A/CN4/SC2/WP 5; Elias, A/CN4/SC2/WP6; Lachs, A/CN4/SP2/WP7.
(19) ‘The Succession of States in Relation to Membership in the United Nations’, UN Doc A/CN4/149 and Add 1 (1962); ‘Succession of States in Relation to General Multilateral Treaties of which the Secretary-General is the Depositary’, UN Doc A/CN4/150 (1962); ‘Digest of the Decisions of International Tribunals Relating to State Succession’, UN Doc A/CN4/151 (1962).
(20) Rep of Manfred Lachs, Chairman of the Sub-Committee on Succession of States and Governments, UN Doc A/CN4/160 and Corr 1 (1963), Yrbk ILC (1963) II, Annex II, p 260.
(21) Summary Record of 4 mtg, 18 Jan 1963, Yrbk ILC (1963) p 265.
(22) Tabibi, UN Doc A/CN4/SC2/WP2 (1963), Yrbk ILC (1963) II, 284.
(23) Castrén, UN Doc A/CN4/SC2/WP4 (1963), Yrbk ILC (1963) II, 290, p 291.
(25) In 1963 O'Connell had first set out his scepticism as to whether the issue of ‘personality’ should be regarded as the ‘key’ to succession (D O'Connell, ‘State Succession and the Effect upon Treaties of Entry into a Composite Relationship’, 39 BYIL (1963) 54, pp 56–8). By 1965 this had been extended into a direct attack upon he ‘State-government’ distinction (D O'Connell, ‘Independence and Problems of State Succession’ in W O'Brien The New Nations in International Law and Diplomacy (1965) 7, p 11).
(26) Rosenne, UN Doc A/CN4/SC2/WP3, Yrbk ILC (1963) II, 285, p 286, para 3.
(27) Summary Record of 5 mtg, 21 Jan 1963, Yrbk ILC (1963) II, pp 267–8.
(28) Reference was made, in this respect, to the case law of the PCIJ and ICJ in Mavrommatis Palestine Concessions Case PCIJ, Series A, no 2 (1924); Nationality Decrees in Tunis and Morocco case PCIJ, Series B, no 4 (1923); Case Concerning Rights of Nationals of the United States of America in Morocco Judgment of 27 Aug 1952, ICJ Rep 1952, 176; and International Status of South West Africa, Advisory Opinion, ICJ Rep 1950, 128.
(29) See further below pp 149–52.
(30) Examples existed, eg US v Smith, 1 Hughes 347 (concerning the right of the Federal government to collect on a debt owing to the Confederate government). There were several cases which dealt, in similar manner, with the question of succession to ‘puppet’ regimes. eg Socony Vacuum Oil Co Claim ILR (1957) 55.
(31) Art 11, Articles on State Responsibility (2001), UN doc A/56/10.
(32) Yrbk ILC, (1963) II, p 261.
(33) Elias, UN Doc A/CN4/SC2/WP6, Yrbk ILC (1963) 283.
(34) ibid 284. Elias concluded, however, with the suggestion that a ‘presumption’ in favour of State succession ‘with proper qualifications and exceptions’ might provide ‘a more rational basis for the continued integrity of international law and the facts of international life’.
(38) See eg Rosenne, 634 mtg., 2 May 1962, Yrbk ILC (1962) I, p 33, para 6 (‘He … doubted the advisability of over-stressing the significance of the precedents of the 19th century, and of concentrating on material deriving from such events as the unification of Italy and of Germany. Those precedents and the literature dealing with them were not strictly germane. The Commission was concerned with the problems of the second half of the 20th century. The 1919 peace treaties had given rise to a number of instances of succession, and the resulting jurisprudence had been intimately connected with those treaties and in part with the question of membership of the League of Nations. The practice and the jurisprudence fell into two categories: that concerning the cession of territory as between pre-existing countries, and that concerning the cession of territory to another country brought into existence as the result of the war, such as Poland. The experience had been quite different since 1945, being characterized by the creation of new states where none had formerly existed.)
(39) Cassin (Acting Chairman), Yrbk ILC (1963) II, p 276.
(42) GA Resn. 1902 (XVIII) of 18 Nov 1963 (recommending that the Commission ‘continue its work on the succession of States and Governments, taking into account the views expressed at the eighteenth session of the General Assembly, the report of the Sub-Committee on the Succession of States and Governments and the comments which may be submitted by Governments, with appropriate reference to the views of States which have achieved their independence since the Second World War.’).
(43) See below, pp 199–201.
(44) Elias, UN Doc. ILC(XIV)/SC2/WP1, Yrbk ILC (1963) II, 282.
(45) Art 2(7) UN Charter provides: ‘Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter …’.
(47) ibid. Rosenne had already laid his position out, in this respect, in an article in the British Yearbook of International Law. See S Rosenne, ‘The Effect of Change of Sovereignty upon Municipal Law’, 27 BYIL (1950) 267, p 290. (‘After a change of sovereignty, however caused, the law in force in the territory affected by the change in sovereignty is, regardless of its substantive content, the law of the new sovereign, from whom alone its validity is derived. This is the necessary result of the intimate connexion that exists between law and sovereignty.’)
(48) E Feilchenfeld, Public Debt and State Succession (1931) p 602.
(50) Elias, loc cit.
(51) These included: treaties; territorial rights; nationality; public property; concessionary rights; public debts; ‘other’ questions of public law; property rights, interests and relations under private law; and torts. Lachs Report, above, n 20, p 261, para 15.
(52) ibid, para 13. There was considerable discussion as to whether procedures for dispute resolution should also be addressed. In the event, the Sub-commission merely recommended the matter be referred to the Special Rapporteur concerned.
(54) First Rep art 6, UN Doc A/CN4/101, Yrbk ILC (1956) II; Second Rep art 17(I)(A)(i) and 21(3), UN Doc A/CN4/107, Yrbk ILC (1957) II; Fourth Rep art 2(1)(c), 6, 21, 28, UN Doc A/CN4/120, Yrbk ILC (1959) II; Fifth Rep art 15, 27, UN Doc A/CN4/130, Yrbk ILC (1960) II.
(55) Waldock, the new Rapporteur on the law of treaties had expressed doubts as to whether ‘a general doctrine of State succession could be said to exist’, and had suggested that the issue could largely be addressed, as McNair had done, by reference to the principle rebus sic stantibus. Waldock, 630th mtg, 26 Apr 1962, Yrbk ILC (1962) I, p 9, para 12.
(56) Art 73 Vienna Convention on the Law of Treaties (1969) (‘The provisions of the present Convention shall not prejudge any question that may arise in regard to a treaty from a succession of States or from the international responsibility of a State or from the outbreak of hostilities between States.’).
(59) Rep of 19 Session, UN Doc A/CN4/199, paras 38–41, Yrbk ILC (1967) II, p 368.
(60) Waldock, First Rep on Succession of States and Governments in Respect of Treaties, UN Doc A/CN4/202, Yrbk ILC (1968) II, 87; Second Rep on Succession in Respect of Treaties, UN Doc A/CN4/214 and Adds 1 & 2, Yrbk ILC (1969) II, 45; Third Rep on Succession in Respect of Treaties, UN Doc A/CN4/224, and Add1, Yrbk ILC (1970) II, 25; Fourth Rep on Succession in Respect of Treaties, UN Doc A/CN4/249, Yrbk ILC (1971) II, 143; Fifth Rep on Succession in Respect of Treaties, UN Doc A/CN4/256 and Add 1–4, Yrbk ILC (1972) II, p 1.
(61) In addition to those cited above (n. 19) the Secretariat produced five studies on the succession of States to multilateral treaties, UN Docs A/CN4/200/Rev2 & A/CN4/200/Add1 & 2, Yrbk ILC (1968) II, and a volume of information provided by member states entitled Materials on Succession of States ST/LEG/SER.B/14.
(62) I Brownlie, ‘The Calling of the International Lawyer: Sir Humphrey Waldock and his Work’, 54 BYIL (1984) 7, p 41.
(69) Reuter, Yrbk ILC, 1970, I, p 137, para 57.
(70) Committee on the Succession of New States to the Treaties and Certain other Obligations of their Predecessors, ‘Interim Report’, 52 ILA Rep Conf 14–20 Aug (1966) p 574; ‘Interim Report and Draft Resolutions’, 53 ILA Rep Conf 25–31 Aug (1968) 596; ‘Report’, 54 ILA Rep Conf 23–29 Aug (1970) 101; ‘State Succession and Governmental Contracts’, 55 ILA Rep Conf 21–26 Aug (1972) 654.
(71) International Law Association, The Effect of Independence on Treaties (1965), pp xiii–xiv. The Committee noted that it would be ‘premature … to formulate definitive principles to govern the solution of this problem… . While refraining, therefore, from commitment at this stage to a statement of rules of law, the Committee offers a statement of the problems raised and an analysis of the possible attitudes towards them.’ It was fairly evident, however, where the ILA's ultimate sympathies lay.
(72) One may note, in particular, the similarity between the approach to treaties in the ILA handbook and that adopted by O'Connell in State Succession in Municipal Law and International Law (1967) II, p 88 ff. This had been preceded by several lengthy articles in which most of the arguments had already been rehearsed. eg D O'Connell, ‘Independence and Succession to Treaties’, 37 BYIL (1962) 84; D O'Connell, ‘State Succession and the Effect upon Treaties of Entry into a Composite Relationship’, 39 BYIL (1963) 54; D O'Connell, ‘State Succession and Problems of Treaty Interpretation’, 58 AJIL (1964) 41.
(73) The handbook thus echoes the distinction made by Rosenne above, p 97–8 .
(75) Other possible cases include the secession of the United States from Britain, the secession of Texas from Mexico in 1840, Greece from the Ottoman Empire in 1830, Cuba from Spain in 1898, and Panama from Colombia in 1903.
(76) G Fischer, ‘L'indépendence de la Guinée et les accords franco-guinéens’, 4 AFDI (1958) 711.
(78) Three different examples suffice: I. In The Mechanic the Ecuadorian Mixed Claims Commission had upheld in an award of 1862 the US contention that the US-Spanish treaty of 1785 had been inherited by Colombia. J Moore, Digest of International Law(1906), V, p 341. II O'Connell, above, n 72, pp 92–95; II. Whilst Finland was generally regarded as not having inherited treaty obligations from Russia, exceptions existed in respect of certain boundary agreements between Russia and Sweden. See further, O'Connell, ibid 99–100; III. Whilst Czechoslovakia generally adopted a negative attitude to inheritance of the treaties of Austria-Hungary, it undertook to adhere, under the terms of the Treaty of St Germain 1919, to a range of agreements specified in Annex I of the Treaty. O'Connell, ibid 179–180; McNair, A, The Law of Treaties (1962, 2nd edn), p 604.
(79) On unilateral declarations, see below pp 128–31.
(80) On devolution agreements see below pp 122–7 .
(81) It is notable that the treaty lists referred to are principally those of European and North American States together with Australia and New Zealand.
(82) Crawford explains that in the work of O'Connell, he saw the Dominions as acquiring ‘an intermediate form of legal personality to which treaty obligations could be attributed and which could be regarded as continuing in the eventual State personality of the Dominion after independence’. This idea was then extended to cover not only the period in which the Dominions had a degree of distinct international personality, but also to the period of ‘separate internal competence for treaty performance in an internationally undivided Empire’. Crawford, above, n 4, p 7. K Roberts-Wray, Commonwealth and Colonial Law (1966) pp 247–301
(83) The discussion in the handbook concerning the incremental process of dominion independence clearly emphasized the ‘factors assimilating the newly independent Commonwealth countries in the Older Dominions’ such as the specific application of treaties to overseas territories, their separate administration (in the guise of the doctrine of the divisibility of the Crown), and the participation of local legislatures in implementation of agreements. Handbook, above, n 71, pp 111–17.
O'Connell was somewhat ambivalent as to whether the position of newly independent states could fully be assimilated to that of the Dominions. See O'Connell, ‘Independence’ above, n 72, p 105.
(84) In a famous address to the Dáil, de Valera made clear that:
the present position of the Irish Free State with regard to treaties and conventions concluded between the late United Kingdom and other countries is based upon the general international practice in the matter when a new State is established. When a new State comes into existence, which formerly formed part of an older State, its acceptance or otherwise of the treaty relationships of the older State is a matter for the new State to determine by express declaration or by conduct (in the case of each individual treaty) as considerations of policy may require. The practice here has been to accept the position created by the commercial and administrative treaties and conventions of the late United Kingdom, until such time as the individual treaties and conventions themselves are terminated or amended. Occasion has been taken, where desirable, to conclude separate engagements with the States concerned.
Irish Free State Debates, 11 July 1933, cited in J Mervyn Jones, ‘State Succession in the Matter of Treaties’, 24 BYIL (1947) 360, p 367.
(85) On unilateral declarations see below, pp 128–31.
(86) Ago was to remark that the work of the ILA ‘though useful, left an impression of excessive complexity and a disappointing lack of clarity’. Yrbk ILC, 1970, I, p 149, para 3.
(87) Above, n 71, pp 37–8. These included, at one end of the scale, treaties applying to all colonies in virtue of British signature or through territorial application clauses to those, at the other end of the scale, which were concluded directly between the colonial government and a foreign country.
(88) O'Connell, II, above, n 72, p 113 (‘One of the decisive factors promoting [the continuity of treaties upon independence] … is the embodiment of imperial treaty relationships in the local and separate legal orders of the dependent territories.’).
In all the cases assembled under the heading of evolutionary independence there occurred a process, more or less extended in time, whereby the territories concerned acquired their own legal orders separate from the metropolitan legal orders, and whereby they were only exceptionally affected either by metropolitan legislation or by metropolitan treaty-making… . As local autonomy grew, so the relevant legal orders became ever more detached from metropolitan influence, until … treaties were not extended without local decision, and survived locally even when terminated with respect to the metropolis. This process of ‘localization’ of treaties has its mysterious aspects, but it presents no insuperable puzzle to jurisprudence. The grundnorm was shifted imperceptibly from the metropolis to the territories by attrition of constitutional links, and resulted in a concretization of treaties in the local legal orders, so that these gained a new and modified validity from a new centre of legal gravity.
(95) ibid p 84–5. (‘The problem of succession raised by this phenomenon is novel, inasmuch as the process is not one of sudden fragmentation of a political entity, but evolution through various intermediate stages of internal autonomy to full maturity, the process extending over varying periods of time, but tending to be constant in character. The treaties affected are not, generally speaking, treaties of the parent State contracted without specific relation to the maturing territories, but treaties expressly applied territorially and, on the whole, autonomously administered; they are thus, in a sense, “localized” . Furthermore, they deal with subject matters utterly novel and immeasurably complex, and they are mainly multilateral in form and technical in character. The structure of the modern world is dependent upon their continuity.’).
(96) A discussion of problems as matters of analytical philosophy is to be found in J Raz, The Concept of a Legal System (2nd edn, 1980).
(97) The only explicit defence of this position is to be found in the work of O'Connell, discussed above, pp 85–6.
(98) eg Russia 1919, Yugoslavia, 1945.
(100) eg in Kenya, Algeria, Malaya, Guinea-Bissau, Vietnam, Angola, Mozambique, Zimbabwe, Namibia, and Madagascar, to name but a few. See generally, R Young Postcolonialism: An Historical Introduction (2001) pp 161–81.
(101) eg Congo, Angola, Nigeria.
(104) In 1966 the ILA Committee concluded its work with four recommendations, the first of which demonstrated a clear preference for treaty continuity: ‘In all decisions and actions concerning the applicability of pre-existing treaties to newly independent States, weight should be attached to the advantages of achieving the maximum degree of continuity in treaty relations’. ILA Report of the 52 Conference, Helsinki, 1966, p 585.
(105) ILA, Rep of the 53 Conference, Buenos Aires, 1968, p 589.
(107) ibid, Resn 1, para (b)(iii) and (iv). Continuity would also be presumed in cases in which the parties concerned expressly so agree or where the terms of the agreement have been applied inter se (paras i and ii). In case of bilateral agreements, the other contracting party may also have a right to denounce the agreement (para iii).
(111) In 1956 O'Connell had suggested that ‘[t]he effect of change of sovereignty on treaties is not a manifestation of some general principle or rule of State succession, but rather a matter of treaty law and interpretation’. D O'Connell, The Law of State Succession (1956) p 15. O'Connell later suggests, in somewhat modified form, that: ‘International law … does not have a special rule respecting either the inheritance or lapse of treaties in the event of State succession; it utilizes the ordinary rules for the termination of treaties, and leaves it to judicial, or judicious, appreciation in each instance whether a treaty, upon interpretation, is applicable in the new context’. O'Connell, above, n 72, II, p 6, and generally, pp 1–9.
(114) ibid, para 10. This was echoed by several others in the Commission. See eg Cassin, Yrbk ILC (1968) I, p 134, para 5 (‘The different theories on the subject could hardly provide guidance for the Commission, let alone solutions for the difficult problems involved. It would therefore be better to rely on practice, diverse though it may be.’); Castañeda, Yrbk ILC, 1968, I, pp 136–7, para 34; Ramangasoavina, Yrbk ILC, 1968, I, p 142, para 35.
(115) He explains that his intention was to draft articles ‘designed as a sequel to the draft articles on the law of treaties rather than as one section of a single comprehensive codification of the several branches of the law applicable to succession of States and Governments’. ibid, para 11. The draft articles on the Law of Treaties had included a provision (draft art 69) providing that the rules should not be read as ‘prejudging’ any question of succession. This was ultimately to become art 73 of the Vienna Convention on the Law of Treaties (1969).
(116) Waldock was to return to this problem quite consistently in the course of his work on succession. The longer he pursued the question in terms of the law of treaties, the more improbable it became for any institution of succession to be generated in the ILC's work. He thus commented, in the discussion of his second and third reports that the ILC might have to take a very different stance in relation to matters such as public property than in relation to treaties, Waldock, Yrbk ILC, 1970, I, p 135.
(117) cf Ushakov, Yrbk ILC, 1968, I, p 138, para 54.
(118) Albónico, Yrbk ILC, 1968, I, p 135, paras 20–21. He added that there would be three exceptions to the latter rule: one relating to treaties governing the status of territory; another relating to treaty provisions which have become binding as part of customary international law; and a third relating to multilateral treaties which laid down rules for a group of states and which were binding on their successors.
(119) See, Yaseen, Yrbk ILC, 1968, I, pp 142–3, para 44 (‘If it were decided to refer only to the law of treaties, all problems would be solved if it were possible to give a categorical answer to the question whether the successor State was a third State with respect to the treaty or whether it was a party to the treaty; but that was impossible.’).
(120) Castañeda, Yrbk ILC, 1968, I, p 137, paras 38–40.
(121) W Beckett, ‘Decision of the Permanent Court of International Justification Points of Law and Procedure of General Application’, 11 BYIL (1930) 1.
(122) It is accepted that obligations may be assumed by third parties in respect of treaties to which they are (definitionally speaking) not a party, but only insofar as they explicitly consent. See art 35 Vienna Convention.
(123) German Interests in Polish Upper Silesia, PCIJ, Ser A, no 7, pp 28–9 (a treaty ‘only creates law as between the States which are parties to it; in case of doubt, no rights can be deduced from it in favour of third States’); McNair, above, n 78, pp 309–21.
(124) Nor indeed, is there evidence that those obligations can arise by means of an ‘assignment’ from one State to another. As Waldock pointed out in his Second Report: ‘An assignment is by its very nature a transaction which purports to impose an obligation on a third party – an obligation on the third party to accept a different form of performance of its contract than that to which it is entitled; and in international law the rule seems clear that an agreement by a party to a treaty to assign either its obligations or its rights under the treaty cannot bind any other party to the treaty without the latter's consent.’
Waldock, Second Report above, n 60, p 56, para 10.
(125) For such an approach see, McNair above, n. 78; G Fitzmaurice, ‘Fifth Report on the Law of Treaties’ Yrbk ILC (1960) II, p 94, para 55. R Jennings and A Watts Oppenheim's International Law (9th edn, 1992) I, 1263, suggest that both the League Covenant and the UN Charter must ‘be regarded as having set a limit, determined by the general interest of the international community, to the rule that a treaty cannot impose obligations upon States which are not party to it’. See as regards the ‘objective’ personality of the UN, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion ICJ Rep, (1949) 174, p 185.
(126) eg the ILC suggested that ‘if a succession of States occurs in respect of the territory affected by the treaty intended to create an objective regime, the successor State is not properly speaking a “third State” in relation to the treaty. Owing to the legal nexus which existed between the treaty and the territory prior to the date of succession of States, it is not open to the successor State simply to invoke art 35 of the Vienna Convention under which a treaty cannot impose obligations upon a third State without its consent.’ Yrbk ILC, 1974, II, p 204, para 30.
(127) For his attempt to locate the idea in the notion of a ‘legal nexus’ see below, pp 141–7.
(128) For the view that Waldock ultimately relied upon the law of succession rather than the law of treaties in his approach to ‘new States’ see Bedjaoui, Yrbk ILC, 1972, I, p 79, paras 7–9.
(129) See above, pp 106–8.
(133) These he referred to as ‘norms of jus cogens relating to decolonization’ which represented ‘the fundamental laws of the international community’. Bartoš, Yrbk ILC, 1968, I, p 138, para 57.
(134) For similar see, Yasseen, Yrbk ILC, 1968, I, p 143, para 47.
(135) Briggs, Yrbk ILC (1963) II, p 276.
(138) By his Fifth Report, one may sense that Waldock had changed his attitude on this score, see below, pp 166–73.
(140) Separate Opinion of Judge Dillard, Western Sahara Advisory Opinion, ICJ Report 1975, 12, 116, p 122 (‘It is for the people to determine the destiny of territory and not the territory the destiny of the people.’).
(142) cf G Schwarzenberger, ‘The Inductive Approach to International Law’, 60 Harv L Rev (1946–47) 539.
(149) That this may have brought into question the application of the principles to treaties concluded by ‘semi-sovereign’ States was not fully appreciated.
(150) The ILC followed, in this respect, the terms of art 5 of the Vienna Convention on the Law of Treaties. Very little discussion of the matter followed the proposal within the Commission. See, Yrbk ILC, 1972, I, pp 150–2.
(152) Later to become art 62, Vienna Convention on the Law of Treaties (1969).
(157) Some of his other examples – such as the extension of Serbian treaties to Yugoslavia in 1919 – may also be thought a somewhat suspect basis for his doctrine.
(158) eg, J Westlake, ‘The Nature and Extent of Title by Conquest’, 17 LQR (1901) 392.
(159) Other members of the Commission also pointed out counter-examples illustrating the continuity of certain treaties relating to ceded territory. eg, Bedjaoui, Yrbk ILC (1972) I, p 47.
(160) See discussion, Yrbk ILC, 1972, I, pp 152–4; 156–8 (where the main point of discussion concerned the question whether some explicit reference to the legality of the transfer should be included).
(161) UKTS no 15 (1931); cmd 3797. Art 8 of that agreement provided that:
The High Contracting Parties recognize that upon the entry into force of this Treaty, all responsibilities devolving under the Treaties and Agreements referred to in Article 7 hereof upon His Britannic Majesty in respect of Iraq will, in so far as His Britannic Majesty is concerned, then automatically and completely come to an end, and that such responsibilities, in so far as they continue at all, will devolve upon His Majesty the King of Iraq alone.
It is also recognized that all responsibilities devolving upon His Britannic Majesty in respect of Iraq under any other international instrument, in so far as they continue at all, should similarly devolve upon His Majesty the King of Iraq alone, and the High Contracting Parties shall immediately take such steps as may be necessary to secure the treansference to His Majesty the King of Iraq of these responsibilities.
(162) Devolution agreements were concluded in respect of the following: Transjordan, 6 UKTS 144; Burma, 70 UNTS 184; Ceylon, 86 UNTS 28; Malaya, Cmnd 346; Cyprus, Cmnd 1252; Nigeria, 384 UNTS 209; Sierra Leone, Cmnd 1464; Ghana, 287 UNTS 233; Jamaica, Cmnd 1918; and Trinidad and Tobago, Cmnd 1919. See generally, O Udokang, Succession of New States to International Treaties (1972), pp 186–99; O'Connell (1967) II, above, n 72, pp 352–73; McNair, above, n 78, p 650; A Lester, ‘State Succession to Treaties in the Commonwealth’, 12 ICLQ (1963) 475, pp 503 et seq.
(163) With Western Samoa, 476 UNTS 3.
(164) Agreement Relating to the Separation of Singapore from Malaysia as an Independent and Sovereign State, 4 ILM (1965) 932. See also, S Jayakumar, ‘Singapore and State Succession: International Relations and Internal Law’, 19 ICLQ (1970) 398.
(165) Indonesia, 69 UNTS 208.
(169) Tabibi, Yrbk ILC, 1972, I, p 56, para 47.
(171) This was later echoed in Bedjaoui's remarks that examination had to be given to the ‘périod suspecte’ during which such agreements might have been concluded, and evaluated in light of the principle of self-determination, Bedjaoui, Yrbk ILC, 1972, pp 53–4, para 21.
(172) Waldock, Second Report, above, n 60, p 56, para 8. One may note the exclusivity clause within art 42 of the Vienna Convention 1969 (‘The validity of a treaty or of the consent of a State to be bound by a treaty may be impeached only through the application of the present Convention.’).
(174) ibid, p 56, para 10. Waldock appears to have taken this view from F Mann, ‘The Assignability of Treaty Rights’ 30 BYIL (1953) 475; E Lauterpacht, ‘The Contemporary Practice of the United Kingdom in the Field of International Law: Survey and Comment, VI 7 ICLQ (1958) 515, pp 523–30 and McNair (1967), above, n 78, pp 340–2. See also, Case Concerning the Temple of Preah Vihear ICJ Rep 1961, 17, Oral Proceedings (Thailand), p 27.
(176) K Zemanek, ‘State Succession After Decolonization’, 116 Hague Recueil (1965) III, 188 pp 213–15; Sette Câmara, Yrbk ILC, 1970, I, p 152, para 30.
(177) Lauterpacht comments in this respect that inheritance agreements if not legally effective, are not entirely purposeless:
They assist, in the early days of independence, in focusing the attention of the authorities of the new State upon the need to clarify the range and extent of their treaty commitments. They provide a basis on which third States can take the initiative in proposing the maintenance or novation of pre-existing bilateral treaties. Finally, if the practice persists, it may help to establish a true concept of succession, under which the successor State assumes the rights and duties created by every treaty which is closely linked with its territory and which cannot be regarded as of so odious a nature politically as to terminate upon the change in sovereignty.
Lauterpacht above, n 173, pp 525–30. O'Connell (1967) was to conclude that, in practice, devolution agreements ‘have permitted a presumption of continuity to arise’, above, n 72, p 365. See also F Vallat, ‘Some Aspects of the Law of State Succession’ 41 Trans Grot Soc (1956) 123, p 134; H van Panhuys, ‘Las succession de l'Indonesie aux accords internationaux conclus par les Pays-Bas avant l'independence de l'Indonesie’, 2 NILR (1955) 67.
(178) The text of draft art 3(1) was as follows:
A predecessor State's obligations and rights under treaties in force in respect of a territory which is the subject of a succession do not become applicable as between the successor State and third States, parties to those treaties, in consequence of the fact that the predecessor and successor States have concluded an agreement providing that such obligations or rights shall devolve upon the successor State.
The general terms of this provision were retained in what was to become art 8 of the Vienna Convention of 1978.
(179) Rosenne suggested that since Waldock's draft seemed to suggest that devolution agreements were merely ‘statements of policy’ there may not be any particular need for the article, Rosenne, Yrbk ILC, 1970, I, p 155, para 67.
(180) Kearney, Yrbk ILC, 1970, I, p 165, paras 23–25; Yasseen, Yrbk ILC, 1972, I, p 53, para 11 (‘The main danger was that the devolution agreement might be considered to contain not an offer depending on the will of the offering State, but a final offer.’).
(181) Several of those who are sceptical as to the third party effects of devolution agreements, are nevertheless of the view that the possibility exists for the agreements in question to be brought into effect by way of novation. eg, McNair, above, n 78, p 142. For a more positive endorsement of the possibility of assignment see O'Connell, II, above, n. 72, p 352, also Kearney, Yrbk ILC, 1970, I, p 165, para 23. Contra, Sette Câmara, Yrbk ILC, 1972, I, p 55, para 39.
(184) Two causes of his unwillingness to engage in an open discussion of self-determination may have been a) the appreciation that his position effectively denied newly independent States the opportunity to rely upon devolution agreements for purposes of securing their ‘treaty heritage’ (See, in that respect, Quintin-Baxter, Yrbk ILC, 1972, I, p 54, para 29); and b) that it was unclear as to whether the provision might have applicability outside the context of decolonization e.g. in relation to the separation of Singapore from Malaysia (Waldock, Yrbk ILC, 1972, I, p 56, para 56).
(185) This was recognized explicitly by certain members of the Commission. eg, Yasseen, Yrbk ILC, 1970, I, p 161, para 52.
(186) On unequal treaties generally see, F Nozari, Unequal Treaties In International Law (1971) 286; I Detter, ‘The Problem of Unequal Treaties’, 15 International and Comparative Law Quarterly (1966) 1069, pp 1081–2; A Lester, ‘Bizerta and the Unequal Treaty Theory’, 11 International and Comparative Law Quarterly (1962) 847; L Caflisch, ‘Unequal Treaties’, 35 German Yearbook of International Law (1992) 52.
(187) ‘Declaration on the Prohibition of Military, Political or Economic Coercion in the Conclusion of Treaties’, See Official Records of the United Nations Conference on the Law of Treaties, First and Second Sessions, Documents of the Conference (United Nations publication, Sales no. 70V5), doc A/CONF39/26.
(188) There is another side to the position adopted by Waldock, however. As he seemed to admit (alongside O'Connell and Lauterpacht) the use of devolution agreements could, nevertheless, be a medium through which State practice might be shaped or formed to the point at which a rule of continuity might emerge in customary international law. That O'Connell clearly believed that such a rule had already appeared was really merely a difference in the evaluative weight that each attributed to the existing practice.
(189) cf Rosenne, Yrbk ILC, 1970, I, p 155, para 67 (in which the point is made that if the agreements are not, strictly speaking, ‘treaties’, then other States are not to be regarded as ‘third parties’ within the sense of the Vienna Convention on the Law of Treaties). There was a certain equivocation, however, in the Commission's subsequent discussion as to whether a devolution agreement might give rise to obligations between the successor and predecessor States. eg, exchange between Waldock, Ushakov and Ago, Yrbk ILC, 1972, I pp 50–2, paras 41–75. Ago, was clearly of the view that, irrespective of the status of the party concluding the agreement (ie whether it was a provisional government or insurgent movement) they were nevertheless to be taken as ‘international agreements’, Yrbk ILC, 1972, I, p 55, para 35.
(190) eg, Albónico, Yrbk ILC, 1970, I, p 152, para 41; Castañeda, Yrbk ILC, 1970, I, p 157, para 15.
(191) eg, Sette Câmara, Yrbk ILC, 1970, I, p 152, para 30; Castañeda, Yrbk ILC, 1970, I, p 158, para 18.
(192) ‘Problems of State Succession in Africa: Statement of the Prime Minister of Tanganyika’, 11 ICLQ (1962) 1210.
(193) Materials on Succession of States ST/LEG/SERB/14, pp 177–8.
(194) For a discussion of this practice see Y Makonnen, International Law and the New States of Africa (1983) pp 210–60.
(197) Quentin-Baxter, Yrbk ILC, 1972, I, p 60, para 22.
(199) The nearest proximate provision, was art 25 of the Vienna Convention 1969, which dealt with provisional application of treaties prior to their entry into force.
(202) Waldock was to note that the declaration of Zambia was somewhat closer to a proclamation of succession than others insofar as it began with the acknowledgement that ‘many treaty rights and obligations of the Government of the United Kingdom in respect of Northern Rhodesia were succeeded to by Zambia upon independence by virtue of customary international law’, and continued by providing that ‘[i]t is desired that it be presumed that each treaty has been legally succeeded to by Zambia and that action be based upon this presumption until a decision is reached that it should be regarded as having lapsed’. ibid, p 64, para 6.
(203) These were ultimately excised from the text of art 9 of the Vienna Convention which simply recorded that obligations or rights under treaties in force ‘do not become the obligations or rights of the successor State or of other States 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’.
(204) eg Yasseen, Yrbk ILC, 1970, I, p 161, para 52; Tabibi, Yrbk ILC, 1972, I, p 62, para 46. There was some discussion as to whether unilateral declarations and devolution agreements might be dealt with together, but it was the view of Waldock and others that they were distinct to the extent to which they were addressed to different audiences. Waldock, Yrbk ILC, 1972, I, p 57, paras 68–69.
(205) In contemplation of this issue, a considerable degree of doubt was expressed as to whether Waldock's proposals were applicable in relation to other categories of succession, such as in case of the union of States or cession of territory. eg, Reuter, Yrbk ILC, 1972, I, p 62, para 48.
(206) W Jenks, ‘State Succession in Respect of Law-Making Treaties’, 29 BYIL (1952) 105, See also, Tsuruoka, Yrbk ILC, 1972, I, p 63, para 53.
(208) He was not proposing, for example, that new States could make a similar declaration in respect of treaties which were not formerly applicable to the territory concerned.
(209) Reuter, Yrbk ILC, 1972, I, p 58, para 84.
(211) eg, Ago, Yrbk ILC, 1972, I, p 62, para 42.
(215) There were those who suggested that the definition was, in fact, too narrow. eg, Ushakov, Yrbk ILC, 1972, I, p 33, para 24.
(218) See below, pp 147–55.
(219) See below, pp 166–73.
(220) For similar views see Castrén, Yrbk ILC, 1970, I, p 137, para 56; Ago, Yrbk ILC, 1970, I, p 149, para 4.
(221) GA Resn 1541 (XV), (1960) Annex Principle VI.
(222) See above, pp 117–19.
(224) An early example cited was the Treaty of Berlin, 69 BFSP 749.
(225) Waldock, Fifth Report, above, n 60, pp 29–31. He cited, in addition, art VIII of the Geneva Agreement of 1966 between the United Kingdom and Venezuela, which provided that ‘[u]pon the attainment of independence by British Guiana, the government of Guiana shall thereafter be a party to this Agreement, in addition to the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Venezuela’.
(226) J Lissitzyn, ‘Territorial Entities other than Independent States in the Law of Treaties’, 125 Hague Recueil (1970) 64.
(227) ‘If any of the customs territories, in respect of which a contracting party has accepted this Agreement, possesses or acquires full autonomy in the conduct of its external commercial relations and of the other matters provided for in this Agreement, such territory shall, upon sponsorship through a declaration by the responsible contracting party establishing the above-mentioned fact, be deemed to be a contracting party.’ This clause was originally art XXVI para 4, 55 UNTS 274. It became para 5(c) pursuant to the Protocol of 1957 (278 UNTS 204). It was originally drafted to deal with the somewhat unusual situation presented by the cases of Burma, Ceylon, and Southern Rhodesia in 1947 which possessed, at that time, autonomy in external commercial relations but not full independence. See T Kunugi, ‘State Succession in the Framework of the GATT’, 59 AJIL (1965) 268, p 270.
(228) Art XXII (6) reads: ‘A country or territory, the separate participation of which has been declared under Article III or paragraph 2 of this Article by any Contracting Government, shall when it becomes an independent State, be deemed to be a Contracting Government and the provisions of this Agreement shall apply to the Government of such State as if it were an original Contracting Government already participating in this Agreement.’ 403 UNTS 76.
(229) Art 67(4) provided: ‘The Government of a territory to which the Agreement has been extended under paragraph (1) of this Article and which has subsequently become independent may, within 90 days after the attainment of independence, declare by notification to the Secretary-General of the United Nations that it has assumed the rights and obligations of a Contracting Party to the Agreement. It shall, as from the date of such notification, become a party to the agreement.’ 469 UNTS 238.
(230) Kunugi attributes the lack of enthusiasm for participation by means of accession to the ‘cumbersome and disadvantageous’ nature of negotiation for ‘underdeveloped new states' and upon the fact that it would entail a complete lapse of the previous application of GATT instruments in the territory of an acceding State’. Kunugi, above n 227, p 271.
(231) The list includes: Gambia, Ghana, Indonesia, Jamaica, Kenya, Malawi, Malaysia, Malta, Nigeria, Sierra Leone, Tanzania, Trinidad and Tobago, Uganda, and Zaire.
(232) Including Burundi, Cameroon, Central African Republic, Chad, Congo, Cyprus, Dahomey, Gabon, Ivory Coast, Kuwait, Madagascar, Mauritania, Niger, Rwanda, Senegal, Togo, and Upper Volta.
(233) cf art 11 Vienna Convention (1969), which provides that the consent of a State to be bound by a treaty may be expressed in a number of different ways, including by ‘any other means if so agreed’.
(234) Waldock did note that an exception might exist in cases such as that of the UK-Venezuela agreement in which representatives of the successor State were consulted as regards the terms of the agreement. Waldock, Third Report, above, n 60, p 31, para 12.
(238) G La Forest, ‘Towards a Reformulation of the Law of State Succession’, 60 Proc Am Soc IL (1966) 103.
(239) Jenks complained that the ‘traditional view’ is ‘indefensible in principle, unreasonable in practice, and inconsistent with the long-term development of international law and international organisation’. Jenks, above, n 206, p 107.
(240) See above, pp 105–13.
(243) McNair, above, n 78, p 601. There is a subtle difference in phraseology in respect of the 1961 edition when compared to that of his original volume of 1938. In the latter McNair makes clear that this is ‘believed to be the view of the United Kingdom Government’. See A McNair, The Law of Treaties (1938) p 450.
(246) His one note of criticism of advocates of continuity was directed towards Jenks' argument that ‘law-making treaties’ represented a significant exception to the ‘traditional view’ – an argument which Waldock took to confuse the categories of conventional and customary law. O'Connell shared this view (above, n 72, p 213):
The description of a multilateral treaty as “legislative” serves a useful purpose in explaining the process of law-making on a large scale, but it is misleading as a touchstone of transmissibility. A treaty, no matter what its form or its subject matter, is always a contract, and the problem is one of succession to contractual rights and duties rather than birth into a legislative régime. In the sense in which the term is used, all multilateral treaties are legislative, and Jenks apparently admits this in his reference to some 927 treaties ranging in subject matter from renunciation of war and peaceful settlement of international disputes, through copyright and counterfeiting, to weights and measures. Clearly not all of these treaties are transmissible; no State has yet acknowledged its succession to the General Act for the Pacific Settlement of Disputes. Hence treaties devolve, not because of their legislative characteristics, but because of their subject matter, and if subject matter is the relevant aspect the fact that a treaty is multilateral and not bilateral, or vice versa, would seem theoretically to be of little moment’.
(247) Yrbk ILC, 1970, I, p 135 (Waldock).
(250) Waldock, Third Report above, n 60, p 37, para 1. In subsequent discussion Waldock elaborated further on the difference in practice Yrbk ILC, 1970, I, p 134 (‘Succession to bilateral treaties was a very important part of the present subject, and for purposes of codification it suffered from one disadvantage in comparison with multilateral treaties. The absence of a depositary meant that the practice was less formal and looser, so that much depended on interpreting the attitudes of the States concerned. The machinery of the depositary, on the other hand, imposed a certain discipline an depositary practice provided valuable guidance for the identification of rules relating to succession to multilateral treaties. The position was different in the case of bilateral treaties, where it was more difficult to reduce the law relating to them to clear-cut rules.’)
(251) In rejecting the idea that the consent of other participating States should be required (as for bilateral treaties) Waldock remarked that such an approach would be ‘unrealistic, unduly conservative and unprogressive’, Yrbk ILC, 1970, I, p 135.
(253) The US had communicated the following view of its practice: ‘The depositary practice of the United States with respect to newly independent States has been, in general, to recognise the right of such States to declare themselves bound uninterruptedly by multilateral treaties of a non-organizational type concluded in their behalf by the parent State before the new State emerged to full sovereignty.’ UN Legislative Series, Materials on Succession of States (1967) p 224.
(257) ibid 43–46. For discussion see Yrbk ILC, 1972, I, pp 87–91. Cf. ILA, Interim Report of the Committee on Succession of New States to the Treaties and Certain Other Obligations of their Predecessors (1969) pp 602–3.
(259) Waldock, Yrbk ILC, 1972, I, p 86, para 3. A principal difference, of course, was the temporal one concerning the moment at which a notification of succession would have effect. See discussion in Yrbk ILC, 1972, I, pp 103–12.
(260) Yrbk ILC, 1972, I, p 76.
(261) El-Erian opposed the mention of constituent instruments believing the example of Pakistan to be problematic. Yrbk ILC, 1972, I, p 83, para 56. Nagendra Singh opposed the debarring of succession by reason of the ‘object and purpose’ of the agreement, Yrbk ILC, 1971, I, p 84, para 71.
(262) See eg, Eustathiades, Yrbk ILC, 1970, I, p 136, para 42; Castañeda, Yrbk ILC, 1970, I, p 156, para 4 (describing the ILA's approach as ‘reactionary’) and p 157, para 13; Bartoš, Yrbk ILC, 1972, I, p 72, para 57; Rossides, ibid, para 47; Ruda, Yrbk ILC, 1972, I, p 82, para 35; El-Erian, Yrbk ILC, 1972, I, p 83, para 53.
(263) eg Yasseen, Yrbk ILC, 1972, I, p 70, para 24; Ago, ibid 71, para 39; Bedjaoui, ibid 72, para 49; Castañeda, ibid 74, para 14. Contra, Alcívar, ibid 74, para 10. For a discussion of this issue following in light of the comments of several governments see Vallat, First Rep, UN doc A/CN4/278, and Add 1–6, Yrbk ILC, 1974, II, pp 43–5.
(264) eg Castrén, Yrbk ILC, 1970, I, p 136, para 50; Albónico, Yrbk ILC, 1970, I, p 152, para 35; Castañeda, Yrbk ILC, 1970, I, p 157, para 14; Thiam, Yrbk ILC, 1970, I, p 162, para 72.
(265) eg Ushakov, Yrbk ILC, 1970, I, p 140, para 23.
(266) eg Eustathiades, Yrbk ILC, 1970, I, p 136, para 42; Ruda, Yrbk ILC, 1970, I, p 150, para 14; Sette Câmara, Yrbk ILC, 1970, I, p 151, para 24; Rosenne, Yrbk ILC, 1970, I, p 154, para 58; Yasseen, Yrbk ILC, 1970, I, p 161, para 53; El-Erian, Yrbk ILC, 1972, I, p 73, para 3 (specifically maintaining that it reflected customary international law).
(267) eg Ramangasoavina, Yrbk ILC, 1970, I, p 141, para 39; Castrèn, Yrbk ILC, 1970, I, p 160, para 42.
(268) eg Bartoš, Yrbk ILC, 1972, I, p 70, para 27;
(269) eg Reuter, Yrbk ILC, 1972, I, p 77, para 52; Ago, Yrbk ILC, 1972, I, p 82, para 46.
(270) eg Reuter, Yrbk ILC, 1972, I, p 71, paras 35–6.
(271) For strong affirmations as to the customary status of the provisions in this respect see Yasseen, Yrbk ILC, 1972, I, p 78, paras 62–65; Bilge, Yrbk ILC, 1971, I, p 81, para 30.
(272) For two contasting views on this see Ago, Yrbk ILC, 1970, I, p 150, para 5; Castañeda, Yrbk ILC, 1970, I, p 156, paras 6–7.
(273) GA Resn 2625 (XXV), 24 Oct 1970, Annex (‘The territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or Non-Self-Governing Territory have exercised their right of self-determination in accordance with the Charter, and particularly its purposes and principles.’).
(274) Ushakov, Yrbk ILC, 1970, I, p 140, para 25.
(275) Castañeda, Yrbk ILC, 1970, I, p 158, para 27.
(276) Albónico understood the ‘legal nexus’ to be generated in virtue of the treaty being applied to the territory and thus saw it only as applying in cases of general multilateral agreements already in force. Albónico, Yrbk ILC, 1970, I, p 153, para 47.
(277) Ustor, Yrbk ILC, 1970, I, p 153, para 55.
(278) Bartoš, Yrbk ILC, 1972, I, p 70, para 27.
(279) Ustor, Yrbk ILC, 1970, I, p 153, para 54.
(280) Tabibi, Yrbk ILC, 1970, I, p 140, para 27; Ustor, Yrbk ILC, 1972, I, p 116, para 48.
(281) Ushukov, Yrbk ILC, 1970, I, p 139, para 13 (who saw the differences between treaties in terms of their content rather than their form); Tammes, Yrbk ILC, 1972, I, p 113, para 10; Tammes, Yrbk ILC, 1972, I, p 113, para 10; Ruda, Yrbk ILC, 1972, I, p 114.
(282) Waldock, Yrbk ILC, 1970, I, p 134, paras 19–21.
(283) Having established this principle, Waldock was to extend it in various other ways. First of all, he dealt with the question of the duration of bilateral treaties – particularly so as to address the problem of ‘provisional application’ (draft art 14) and went on to establish that the survival of any bilateral treaties would not, in itself, have any implications as regards the relations between the predecessor and successor States (draft art 15). That the ‘continuance’ in force of bilateral agreements through agreement gave rise to a distinct legal relation between the successor State and the other contracting parties, also meant that the continuance in force of those agreements would be unaffected by the termination or amendment of the original relations between the predecessor State and the other State party (draft art 17).
(285) But cf K Keith, ‘Succession to Bilateral Treaties by Seceding States’, 61 AJIL (1967) 521, p 525 (indicating that a number of bilateral taxation agreements had been concluded prior to independence between the government of the ‘seceding’ State and the predecessor State).
(286) The fifth ILA Resolution adopted at its 1968 Conference read as follows:‘
Unless multilateral treaty otherwise provides, a newly independent State which succeeds to it becomes a beneficiary of the rights and becomes affected by the obligations thereof vis-à-vis all parties thereto, including its own predecessor and other succeeding States, whether they are successors to the same predecessor State or to other parties’.
(287) Japan, for example, claimed the right to the continuance of its traffic rights into Singapore, which had been granted to it in the Agreement between Japan and the United Kingdom for Air Services (1952) on the basis of continuity pure and simple. I Tabata, ‘The Independence of Singapore and her Succession to the Agreement between Japan and Malaysia for Air-Services’, 12 Jap Ann IL (1968) 36.
(288) ILA, Rep, of the 52 Conf, Helsinki, 1966, 557 at pp 576–7.
(289) ‘Succession of States in Respect of Bilateral Treaties’, UN Doc A/CN4/229, Yrbk ILC, 1970, II, 102.
(290) ‘Succession of States in Respect of Bilateral Treaties – Second and Third Studies’, UN Doc A/CN4/243 and Add 1, Yrbk ILC, 1971, II, 111.
(291) UN Publication, Sales no E/F68V5.
(295) ibid 149, paras 13–14. The UK Foreign Office, for example, in reply to a request made by the Norwegian Government concerning the continuity of the Anglo-Norwegian Double Taxation Agreement of 1951 with respect to newly independent States, offered the view that: ‘the Inheritance Agreements concluded between the United Kingdom and those countries now independent were thought to show that the Governments of those countries would accept the position that the rights and obligations under the Double Taxation Agreement should still apply to those countries but that the question whether the Agreement was, in fact, still in force between those countries and Norway was a matter to be resolved by the Norwegian Government and the Governments of those countries’. (Materials on Succession of States, above, n 291, p 192).
(296) 1 Pleadings, pp 145–8, 164–6; 2 Pleadings, pp 31–40, 74–83, 106–9.
(297) eg, note of Senegal to France, quoted in J Gautron, ‘Sur Quelques Aspects de la Succession d'Etats au Sénégal’ AFDI (1966) 836, p 857.
(299) 409 UNTS 67.
(300) He argues, for example, that independence ‘is of no significance to the customs official administering tariffs, to the tax officer granting a tax rebate to a foreign resident, to the Treasury official repaying a loan, to the civil aviation officer clearing a flight by a foreign aircraft, to the postal official cashing a money order’. Keith, above, n 285, p 543.
(305) Yrbk ILC, (1968) II, doc A/7209/Rev1, p 127, paras 47–50.
(308) Rosenne, Yrbk ILC, 1968, I, p 141, para 19; Bedjaoui, ibid, p 141, para 24. He was also to note, as a consequence, that the ILA's distinction between evolutionary and revolutionary succession was, as a consequence, to be treated with caution.
(311) Waldock, Yrbk ILC, 1972, I, p 133, para 51. Echoed by El-Elerian, Yrbk ILC, 1972, I, p 134, para 58; Alcívar, Yrbk ILC, 1972, I, pp 135–6, paras 80–82; Yasseen, Yrbk ILC, 1972, I, pp 136–7, paras 2–4.
(315) ibid. He referred, in that regard to the remark of the PCIJ in the Nationality Decrees in Tunis and Morocco Case, (PCIJ, Series B, no. 4, p 27) in which it remarked that the extent of powers enjoyed by a protecting State ‘depends, first, upon the treaties between the protecting State and the Protected State establishing the Protectorate, and secondly, upon the conditions under which the Protectorate has been recognized by third Powers as against whom there is an intention to rely on the provisions of these Treaties’. It continued by remarking that whilst many protectorates may have common features, ‘they have individual legal characteristics resulting from the special conditions under which they were created, and the stage of their development’.
(316) ICJ Rep 1952, 172, p 188.
(320) ICJ Report 1952, 176, p 188. Further support was found in British Claims in the Spanish Zone of Morocco (Rio Martin) Arbitration (per Max Huber), RIAA II, (1949) 725 and in the Tongolese notification to the UN Secretary General concerning the position of existing treaties after independence, UN Doc A/CN4/263. Further examples are to be found in McNair, above, n 78, pp 622–9 concerning Tunis, Madagascar, Korea and Morocco.
(322) eg practice of Morocco after independence. Waldock, Fifth Report, above, n 60, pp 5–6, para 12. This was also the position adopted by the Legal Committee of the French Union in 1950, cited in O'Connell, II, above, n 72, p 145.
(326) O'Connell makes the argument in case of Tunisia that even if the Bey may not have participated in the negotiation of an agreement ‘the implementation by the Bey, coupled with the specific localization of the treaty, was sufficient under the treaty of protection to preserve the international status of Tunisia and imply its consent to France's agency in treaty making’. O'Connell, II, above, n 72, p 144.
(327) See below, pp 151–5.
(330) This conclusion is, in part, premised upon Zemanek's concept of ‘functional succession’ which concerns the attribution of responsibility to a different ‘subject’ of international law on the basis of a change that affects only ‘part of the supreme power’. ibid 189.
(331) Bedjaoui, Yrbk ILC, 1972, I, p 137, paras 6–12 (‘The whole idea underlying article 18 was false because it was based on a legal fiction. There had never been a pure protectorate where the protecting Power solemnly respected the sovereignty of the protected State… . In point of fact, there had often been a twofold and genuine succession of States: one at the time of the establishment of the protectorate, and the other at the time of the second independence. The question whether the treaty remained applicable was thus pointless, since it had ceased to be applied during the period of the protectorate.’).
(332) Bilge, Yrbk ILC, 1972, I, p 139, para 27 (suggesting that since, in case of ‘genuine protectorates’ there had been no ‘replacement in the sovereignty or competence to conclude treaties’, and since the protectorate retained its ‘sovereignty’, there could be no ‘succession’).
(334) The exception here concerned the capitulation agreements with Western Powers which were only ‘suspended’ by the terms of the Mandates over Palestine, Transjordan, Syria, and Lebanon. See generally Q Wright, Mandates under the League of Nations (1930) pp 482–4.
(335) In case of Class A Mandates, it was provided that the Mandatory ‘shall adhere on behalf of … [the territory concerned] to any general international conventions already existing, or which may be concluded hereafter with the approval of the League of Nations, respecting the slave trade, the traffic in arms and ammunition … etc.’. See Art 9 Mandate for Palestine and Transjordan, Art 9 Mandate for Syria and Lebanon in case of Class B and C Mandates, the general formula provided that the Mandatory shall apply to the territory any general international conventions ‘applicable to his contiguous territories’. eg art 8 British Mandate for Togoland and the Cameroons; art 8 French Mandate for Togoland and the Cameroons and art 9 of the Belgian East African Mandate. Wright, above, n 334, pp 600–18.
(339) LNOJ (1931) Minutes of the Council at its 64 session, 2055–6. See further L Evans, ‘The General Principles Governing the Termination of a Mandate’, 26 AJIL (1932) 735.
(340) 132 BFSP, 1930, I, 208, art 8.
(341) In case of Jordan this was expressed in art 8 of the Treaty of Alliance with Britain (1946). 6 UNTS 146. In case of Syria and Lebanon, General Catroux, on behalf of the Free French, had proclaimed their independence in 1941 and in doing so had made clear, in the case of Syria, that it would ‘naturally’ succeed to rights and obligations undertaken in its name. See Waldock, Fifth Rep, above, n 60, p 12, para 29; O'Connell, II, above, n 72, pp 158–9; R de Murault, The Problem of State Succession with Regard to Treaties (1954) p 122.
(342) GA Resn 181 (II), 1947.
(344) UN doc A/CN4/150, paras 11–13, Yrbk ILC, 1962, II, p 108.
(345) de Muralt concludes that ‘the Syrian and Lebanese States do not, generally speaking continue the obligations of the treaties concluded by the Mandatory’, above, n 347, p 124. Waldock, for his part, identifies only six bilateral agreements that appear to continue in force for those countries. Fifth Rep, above, n 60, pp 13–14, para 34.
(347) See below, p 190.
(349) Bedjaoui, Yrbk ILC, 1972, I, p 138, para 17.
(350) Bedjaoui, Yrbk ILC, 1972, I, p 138, para 18.
(351) See above, pp 88–91.
(354) D O'Connell, International Law (2nd edn, 1970) I, p 43–6.
(355) Kunz argued, for example, that ‘Les conceptions des différents liaisons d'états ne sont pas conceptions normatives, ne sont pas des conceptions du droit, mais des conceptions de classification fournies par la doctrine.’ J Kunz, 11 RDILC (1930) 835, p 849.
(356) cf ILC Commentary to art 4, Articles on State Responsibility, Yrbk ILC (2001) II, 59, p 84.
(358) Waldock pointed out, for example, that art 234 of the Treaty of Rome ‘unmistakably approaches the question of the pre-community treaties of member States with third countries from the angle, not of succession or of the moving treaty frontier rule, but of the rules governing the application of successive treaties relating to the same subject matter’. Waldock, Fifth Report, above, n 60, pp 18–19, para 3.
(361) In its second resolution of the 53 Conference of the ILA in 1968 it adopted the following resolution:
In cases of unions or federations of States, treaties, unless they otherwise provide, remain in force within the regional limits prescribed at the time of their conclusion to the extent to which their implementation is consistent with the constitutional position established by the instrument of union or federation
In such a case where the treaty remains in force, the question whether the union or federation becomes responsible for performance of the treaty is dependent on the extent to which the constituent governments remain competent to negotiate directly with foreign States and to become parties to arbitration proceedings therewith
(362) Note 2, Interim Report, of the Committee on the Succession of New States to the Treaties and Certain Other Obligations of their Predecessors, ILA, Rep, of 53 Conference, Buenos Aires, 1968 (1969) pp 600–1.
(364) See Quentin-Baxter, Yrbk ILC, 1972, I, p 162, para 24.
(365) See Excursus A, Yrbk ILC, 1972, I, p 172.
(366) Oddly enough, Waldock was later to note in the context of the dissolution of unions that ‘there existed some pre-union treaties which had continued in force for the union with respect to Iceland’ indicating that, in some respects at least, there were legal issues to be explored. See Waldock, Fifth Report, above, n 60, p 38, para 8.
(367) In general, Somalia did not recognise its succession to many treaties. No notification was made as regards multilateral treaties to which the Secretary-General is depositary, and evidence is scarce as regards other treaties. In case of certain ILO conventions, however, Somalia accepted some as being applicable in relation to the entirety of its territory, others it deemed to apply only in relation to the territory of Somaliland or that of the Trust Territory. Waldock, Fifth Report, above, n 60, p 35, para 9. O'Connell pointed out that the general attitude of the Somalia government was that ‘treaties, when continued at all, apply only to the areas in which they territorially applied before independence’. O'Connell, above, n 72, p 101.
(371) eg Flensburger Dampfercompagnie v United States, AD 1931–2, no 38.
(372) Bertschinger v Bertschinger, 22 ILR 141.
(375) Formed by a Treaty of Federation signed by El Salvador, Nicaragua, and Honduras, was extended in 1897 to include Costa Rica and Guatemala which expressly provided that ‘[f]ormer treaties entered into by the States shall still remain in force in so far as they are not opposed to the present treaty’. Waldock, Fifth Report, above, n 60, p 28, para 35.
(376) It was declared that the existing treaties of the Russian, White Russian, Ukrainian, and Transcaucasian Republics ‘shall remain in force in the territories of the respective Republics’. O'Connell, above, n 72, II, p 60, n 7.
(377) The obvious exceptions concern the admission of Texas and Hawaii into the United States. In case of Texas the US took the view that Texas's pre-federation treaties had lapsed and that the treaties of the United States extended to her. See eg Statement of US Secretary of State 1876 ‘the union between the United States and Texas … necessarily cancelled the treaties between Texas and foreign powers, so far, at least, as those treaties were inconsistent with the Constitution of this country.’ F Wharton, Digest of International Law (1887) I, p 24. Both Britain and France objected, arguing that Texas could not, by voluntary merger, exonerate herself from her own existing treaties. Dodson, Kings Advocate, FO 83 2207 and 2382, in A McNair, The Law of Treaties (1938) pp 391–3. British law officers, however, changed their position in 1857. It was accepted that arguing for the existence of a separate treaty of commerce and navigation with Texas was incompatible with the US federal constitution. Since Britain had recognised the ‘annexation’ of Texas it was concluded that ‘the separate Treaty merges in the general Treaty of Commerce (if any) subsisting between such Foreign Country and the Federal Union’. For text see McNair, above, n 78, pp 630–2. This, it must be said, seems to have been a pragmatic resolution of a problem that related more closely to the highly ambiguous nature of Texas' entry into the federation, and the apparent difficulty commentators had in deciding whether it was a case of unification or a case of annexation
(380) Interim Rep, of the Committee on the Succession of New States to the Treaties and Certain Other obligations of their Predecessors, ILA Rep, of the 53rd Conference, Buenos Aires, 25th–31st Aug 1968, 596, p 600. For the opposed view see E Castrén, ‘La Succession d'états’, 78 Hague Recueil (1951) 385, p 443, (proffering the idea that the loss of treaty making capacity of a component part of a federal union, would result in the conclusion that the treaties of such a member would expire with its entry into the federation).
(381) See E Cotran, ‘Some Legal Aspects of the Formation of the United Arab Republic and the United Arab States’, 8 ICLQ (1959) 346; R Young, ‘State of Syria: Old or New’, 56 AJIL (1962) 482; C Rousseau, ‘Syrie: Sécession de la Syrie et de la RUA’ 66 RGDIP. (1962) 413.
(382) The provisional Constitution of the United Arab Republic envisaged the creation of a unitary State comprised of two ‘regions’, but with a single legislative body and a centralised executive possessing treaty making powers (art 56). Art 69 of the Provisional Constitution provided, however, that: ‘The coming into effect of the present Constitution shall not infringe upon the provisions and clauses of the international treaties and agreements concluded between each of Syria and Egypt and foreign Powers. These treaties and agreements shall remain valid in the regional spheres for which they were intended at the time of their conclusion, according to the rules and regulations of international law’.
(383) Yrbk ILC (1962) II, p 113, doc A/CN4/150, para 48.
(384) Yrbk ILC (1970) II, p 89, doc A/CN4/225, para 108.
(388) E Seaton, and S Maliti, ‘Treaties and Succession of States and Governments in Tanzania’, African Conference on International Law and African Problems (1967) paras 26–28.
(391) Membership of GATT, the FAO and ITU seems also to have followed from Tanganyika's prior membership in those organizations.
(392) The same approach was adopted mutatis mutandis by the specialized agencies. M Whiteman, Digest of International Law (1963), II, pp 987–90; O'Connell, II, above, n 72, pp 193–6. Waldock concludes that: ‘the Secretary-General and the other organs of the United Nations, acted on the basis that the United Arab Republic united and continued in itself the international personalities of Egypt and Syria’. Fifth Report, above, n 60, p 21, para 14.
(393) As the ILC pointed out, one of the major characteristics was the fact that ‘the process of uniting was regarded not as the creation of a wholly new sovereign State or as the incorporation of one State into the other, but as the uniting of two existing sovereign States into one’. Commentary Draft Art. 32, Yrbk ILC (1974) II i, 171, 1974, p 258, para 24. Crawford, in discussing the case under the title ‘unusual formations’ suggests in similar vein that ‘despite the recognition of the Republic as a unitary State, it appears to have been a loose association the existence of which was not inconsistent with the continuing international personality of its component parts’. Crawford, above, n 12, p 489.
(395) Waldock, Fifth Report, above, n 60, p 22, para 16. He takes O'Connell as relying upon Oppenheim's ‘mystical’ view that a real union was ‘not itself a State … but a composite international person’. L Oppenheim, International Law: A Treatise (Lauterpacht, 8th edn 1955) I, p 171.
(396) 8 ICLQ (1959), pp 374–80.
(397) eg position in respect of the IMF. See generally, K Bühler, ‘State Succession, Identity/Continuity and Membership in the United Nations’ in M Koskenniemi and P Eiscmann, State Succession: Codification Tested Against the Facts (1997) p 187.
(398) eg, 1946 Convention on the Privileges and Immunities of the United Nations; 1947 Convention on the Privileges and Immunities of the Specialized Agencies; 1961 Vienna Convention on Diplomatic Relations.
(401) But cf Parcel Post Agreement and Regulations of Execution, (1959) 11 UST 293.
(402) It is reported that in case of bilateral treaties concluded by Tanganyika after independence but before unification, practice appears to have been that they continued in force but only in relation to the territory concerned. Waldock, Fifth Report, above, n 60, p 25, para 24.
(404) Yrbk ILC, 1972, I, pp 158–9.
(405) The ILA formula allowed the continuity of pre-union treaties ‘to the extent to which their implementation is consistent with the constitutional position established by the instrument of union or federation’, Resolution 2, above, n 105. In its report, however, the ILA indicated that ‘it had not taken a position on the question whether treaty continuity depends upon consistency of a treaty with the constitutional position established by the instrument of union or federation, or whether treaties continue in force irrespective of the constitutional competence to give effect to them after the formation of the new entity’.
(410) Ushakov, Yrbk ILC, 1972, I, p 159, para 71.
(412) Yrbk ILC, 1972, I, p 159, para 72.
(413) eg Hambro, Yrbk ILC, 1972, I, p 164, para 47; Castañeda, Yrbk ILC, 1972, I, p 166, para 76.
(414) eg Ushakov, Yrbk ILC, 1972, I, p 164, para 43. Reuter located the principle in the law of treaties: a State could not, by means of concluding a new treaty (of union) dispense with its responsibility under existing treaties, Reuter, Yrbk ILC, 1972, I, p 176, para 47.
(415) eg Reuter, Yrbk ILC, 1972, I, p 165, para 58; Ustor, Yrbk ILC, 1972, I, p 166, para 77.
(416) eg Ago, Yrbk ILC, 1972, I, p 165, para 66.
(417) Had they been in a position to examine practice relating to the unification of Vietnam in 1976, the picture might have been far more complex. H Bokor-Szego, ‘Identity and Succession of States in Modern International Law’, in Bokor-Szego (ed), Questions of International Law: Hungarian Perspectives (1986) 15.
(418) Tammes, Yrbk ILC, 1974, I, p 177, paras 13–16.
(419) eg, Reuter, Yrbk ILC, 1974, I, p 184, para 3.
(420) eg, Pinto, Yrbk ILC, 1974, I, p 178, para 26.
(421) Commentary to arts 30–32, para 1.
(422) Waldock, Fifth Report, above, n 60, pp 35–44 (draft art 21). He articulated two rules here: one that seceding States would be dealt with in accordance with the provisions relating to newly independent States; the other that the ‘predecessor’ State would remain bound by existing treaty obligations so far as not incompatible with the new situation.
(430) UN Doc A/CN4/229, Yrbk ILC, (1970) II, 102, p 123, para 116.
(431) UN Doc A/CN4/243, Yrbk ILC, (1971) II, 117, p 136, para 110.
(433) Waldock comments as regards Senegal's proclamation of treaty continuity, and Mali's denunciation of the cooperation agreements that ‘succession was accepted by the State which might have been expected to deny it and denied by the State which might have been expected to assume it’. Waldock, Fifth Report, above, n 60, p 39, para 12. See generally, R Cohen, ‘Legal Problems Arising from the Dissolution of the Mali Federation’, 36 BYIL (1960) 375.
(434) eg, Tammes, Yrbk ILC, 1972, I, p 174, paras 21–22; Nagendra Singh, Yrbk ILC, 1972, I, p 174, para 30.
(435) eg, Ramangasoavina, Yrbk ILC, 1972, I, p 175, para 37; Ustor, Yrbk ILC, 1972, I, p 176, para 55; Bilge, Yrbk ILC, 1972, I, p 177, para 59.
(436) Quentin-Baxter, Yrbk ILC, 1972, I, p 178, para 5.
(437) Waldock, Yrbk ILC, 1972, I, p 179, para 11.
(438) Tabibi, Yrbk ILC, 1972, I, p 180, paras 20–21 (in which he argued that the separation of East and West Pakistan should be viewed as the dissolution of a union of States). It is notable that the ILA only dealt with the dissolution of unions of States. In its second resolution of the 53rd Conference of the ILA in 1968 it adopted the following resolution: ‘In cases of the dissolution of unions or federations, the separate components of the composite State may invoke or have invoked against them treaties of the composite State to the extent to which these are consistent with the changed circumstances resulting from the dissolution’
(439) See above, pp 136–7.
(442) Ushakov, Yrbk ILC, 1972, I, p 216, para 65.
(443) Ago, Yrbk ILC, 1972, I, p 71, para 37.
(444) Ustor, Yrbk ILC, 1972, p 74, para 20.
(445) Bartoš, Yrbk ILC, 1972, I, p 75, para 27.
(446) Ushakov, Yrbk ILC, 1972, I, p 75, para 29.
(447) Quentin-Baxter, Yrbk ILC, 1972, I, p 233, para 27.
(448) eg, Ushakov, Yrbk ILC, 1972, I, p 231, para 11; Reuter, Yrbk ILC, 1972, I, p 232, para 13 (arguing that a union of States was purely a construction of internal law).
(449) Ushakov, Yrbk ILC, 1972, I, p 175, para 32; Waldock, Yrbk ILC, 1972, p 32, para 11.
(451) eg, comments of Reuter, Yrbk ILC, 1972, I, p 135, para 73. See also comments of Swedish government, Vallat, First Report, UN doc A/CN4/278, and Add 1–6, Yrbk ILC, 1974, II, p 5, para 12 (‘The General Assembly's wishes might better be met by seeking a separate solution to treaty problems related to succession connected with decolonization, ie., by an ad hoc settlement of an ad hoc situation.’)
(452) It was clear half way through the session in 1972 that members of the Commission were still undecided as to whether the term ‘newly independent States’ included cases of secession occurring outside the context of decolonization. Ushakov, Yrbk ILC, 1972, I, p 183, para 70.
(453) The matter was raised again in 1974 following a UK proposal to define a ‘newly independent State’ as one whose territory was, prior to the succession of States, ‘part of the territory of the predecessor State’. Cited in Vallat, First Report, above, n 263, p 30, para 137.
(455) The Soviet States were unhappy that no mention had been made concerning the application of the principle of the clean slate in cases of ‘social revolution’ (exemplified by the position adopted by the Soviet Union after the October Revolution) and hence sought to re-open the State-government distinction. eg, Comments of USSR, cited in Vallat, First Report, above, n 263, p 14.
(460) eg Kearney, Yrbk ILC, 1972, I, p 234, para 40.
(461) Waldock, Yrbk ILC, 1972, I, p 234, para 45.
(462) Draft Articles 27 and 28. Hambro, Yrbk ILC, 1974, I, pp 257–8.
(465) See above, pp 106–13.
(466) E De Vattel, The Law of Nations (trans J Chitty. 1863) II, xiii, 203 (‘We must not confound those treaties or alliances which, since they impose the obligation of repeated acts on both sides, cannot remain in force except through the continued existence of the contracting powers, with those contracts by which a rights is once for all acquired, independently of any subsequent acts of either party. If, for example, a Nation has granted in perpetuity to a neighbouring prince the right to fish in a river or to keep a garrison in one of its fortresses, the prince does not lose his rights even though the Nation from which he has received them should happen to be conquered by, or in any other way subjected to the control of, a foreign Power. His rights do not depend upon the continued existence of the State from which he received them, for the latter alienated them, and its conqueror could only take over what is actually possessed.’)
(467) O'Connell notes that the original distinction was largely one between ‘bargains personal to the displaced rulers and bargains made with respect to the “private rights of citizens” ’. In the 20th century, however, this became a distinction between ‘political treaties and territorial settlements’. O'Connell, II, above, n 72, pp 232–3.
(468) eg, H Kelsen, Principles of International Law (1952) p 418 (‘There is no succession to treaty obligations and rights, apart from such succession that may result from dispositive treaties’).
(469) eg, Commentary to draft art 59(2). Draft Articles on the Law of Treaties, Yrbk ILC (1966) II, 177, p 259.
(472) G Fitzmaurice, ‘Fifth Report, on the Law of Treaties’, Yrbk ILC, 1960, II, p 69.
(473) H Waldock, ‘Third Report, on the Law of Treaties’, UN doc A/CN4/167, Yrbk ILC, 1964, II, p 26.
(474) Commentary to draft art 34, Yrbk ILC (1966) II, 177, p 231.
(476) cf Tabibi, Yrbk ILC, 1972, I, p 248, para 78 (stressing that art 62(2)(a) of the Vienna Convention ‘in no way impeded the independent operation of the principle of self-determination’ and that it referred only to ‘lawful boundary treaties’.).
(477) 23 GAOR, Annexes, vol. II, Ag Item 84, UN doc A/7370, para 58.
(479) The ILA defined ‘dispositive treaties’ as treaties which are ‘in the nature of objective territorial regimes created in the interests of one nation or the community of nations; are applied locally in virtue of territorial application clauses, (and) touch or concern a particular area of land’. ILA, The Effect of Independence on Treaties, (1965) p 352. O'Connell offers the following comment: ‘In the effort to cast the net more widely than the servitude conception permits, therefore, the term ‘dispositive’ has come to be employed to designate a wide spectrum of treaties which create real rights. The criterion of dispositive character … is that a territory is impressed with a status which is intended to be permanent (or relatively so), which is independent of the personality of the State exercising the faculties of sovereignty … . [R]eal rights in international law are those which are attached to territory, and which are in essence valid erga omnes. The restrictions imposed by the treaty are less of a contractual character than equities in favour of the beneficiary, States. A dispositive treaty is thus more of a conveyance than an agreement and as such is an instrument for the delimitation of sovereign competence within the impressed territory.’ O'Connell, II, above, n 72, pp 14–15. McNair doubted whether the term dispositive was appropriate given its association, for French speakers, with the operative part of a judgment. He suggested by contrast, that they be referred to as ‘treaties creating purely local obligations’, (McNair, above, n 78, pp 655–6).
(480) O'Connell, II, above, n 72, p 12. O'Connell was to note, however, that since there were cases in which a general presumption favours lapse of treaties (specifically annexation) ‘the search for the touchstone cannot be abandoned’, ibid, p 13.
(481) Resolution 8, 53 ILA Rep Conf 25–31 Aug. (1969) xiv–xv (‘When a treaty which provides for the delimitation of a national boundary between two States has been executed in the sense that the boundary has been delimited and no further action needs to be taken, the treaty has spent its force and what is succeeded to is not the treaty but the extent of national territory so delimited; but where a boundary treaty provides for future action to delimit it, or provides for future reciprocal rights in relation to the boundary, the question whether the treaty is succeeded to or not is a question to be answered by reference to the principles in s 1 above [concerning the continuity of treaties subject to denunciation]’).
(482) eg R Jennings, The Acquisition of Territory in International Law (1963) 11; Oppenheim above, n x, (1955) I, p 159; Kelsen, Principles of International Law (1952) p 417.
(484) eg, Q Wright, ‘Conflicts between International Law and Treaties’, 11 AJIL (1917) 573.
(485) W Schönborn, Handbuch des Völkerrechts (1913) II, 32.
(491) G Fitzmaurice, ‘The Juridical Clauses of the Peace Treaties’, 73 Hague Recueil (1949), 255 at p 298.
(494) ibid, 1956, 50–63. In his 1967 volume, O'Connell dispensed with the terminology of ‘servitudes’ which he saw to be largely misleading (ibid, II, 17–23) and included, in its place, ‘particular dispositive situations’ and ‘dispositive international settlements’.
(495) Thus the view that the element of localisation merely indicates a higher probability of succession M Marcoff, Accession à l'indépendence et succession d'Etats aux traits internationaux (1969) pp 205–6.
(496) Castrén, above, n 380, p 437. See also, Lester, (1963), above, n 162, p 475; A Esgain, ‘Military Servitudes and the New Nations’, in W O'Brien (ed) The New Nations in International Law and Diplomacy (1965) p 42; A Keith, The Theory of State Succession (1907) p 22.
(499) ibid. Zemanek was to run precisely the same argument in the opposite direction. He suggested that ‘[d]eviations from the rule of automatic succession to dispositive treaties seem to be due more to political considerations or to the operation of the clausula rebus sic stantibus than to a rejection of the rule of automatic succession’. Zemanek, above, n 174, pp 242–3.
(501) Ago, Yrbk ILC, 1972, I, p 251, 13 (emphasizing that the creation of a ‘real right’ was not related, in any direct way, with the question of succession to treaties. Once the treaty had been executed ‘the treaty was terminated, and was nothing more than evidence of the legitimacy of the transfer’.).
(505) Order of 6 Dec 1930, PCIJ, Series A, no. 24.
(507) Case of the Free Zones of Upper Savoy and the District of Gex, PCIJ, Series C, no. 17–1, vol III, p 1654.
(508) Waldock insisted that the ‘territorial character’ of the arrangement was quite clear all along and that the case could therefore be ‘accepted as a precedent in favour of the principle that certain treaties of a territorial character are binding ipso jure upon a successor State’, (Fifth Rep, above, n 60, p 50, para 14). But it might equally be inferred that, given the circumstances, the Court's failure to make that point clear was indicative of the doubts it may have had about the category of ‘territorial treaties’.
(509) LNOJ, Special Supp (1920) 16.
(510) cf also Separate Opinion of Judge McNair in the Advisory Opinion on the International Status of South West Africa, ICJ Rep 1950, 128, p 153 (‘From time to time it happens that a group of great Powers, or a large number of States both great and small, assume a power to create by a multipartite treaty some new regime or status, which soon acquires a degree of acceptance and durability extending beyond the limits of the actual contracting parties, and giving it an objective existence. This power is used when some public interest is involved and its exercise often occurs in the course of the peace settlement at the end of a great war.’).
(512) ICJ Report 1962, 6.
(513) ICJ Pleadings, Temple of Preah Vihear, 1959, I, p 165.
(515) ICJ Report 1960, 6.
(517) OAU doc AHG/Res16(1). A similar resolution was adopted by the Conference on Heads of States and Governments of Non-Aligned Countries in 1964. Waldock, Fifth Report, above, n 60, p 52, para 22. See generally, M Shaw Title to Territory in Africa: International Legal Issues (1986) 185–7.
(518) The grazing rights had initially been secured by exchange of letters shortly after the 1897 Treaty (89 BFSP 36) but had been re-affirmed in an agreement between Britain and Ethiopia in 1954 (161 BFSP 93). See generally, UN, Materials on State Succession, above, n 291, p 185; O'Connell, II, above, n 72, p 283.
(525) Tabibi, Yrbk ILC, 1972, I, p 248, para 76.
(526) Tabibi, Yrbk ILC, 1972, I, p 248, para 75.
(529) K Kaikobad ‘Some Observations on the Doctrine of Continuity and Finality of Boundaries’, 54 BYIL (1984) 119, p 129 (‘The fact is that a State succeeds not only to all the territorial rights of her predecessor, but also to all the limitations and liabilities that are connected therewith. Therefore, all claims in relation to the status and location of the boundary existing prior to succession will also be deemed to continue’.).
(530) See above, pp 61–4.
(531) Tabibi, Yrbk ILC, 1972, I, p 248, para 79 (although African boundaries had been established to serve the interests of the colonial Powers, to alter them ‘would shatter the whole fabric of the African States’.). This is echoed by the ICJ in the case concerning the frontier dispute, (Burkina Faso/ Republic of Mali) ICJ Report 1986, 554, at 567, para 25 (‘the maintenance of the territorial status quo in Africa is often seen as the wisest course, to preserve what has been achieved by peoples who have struggled for their independence, and to avoid a disruption which would deprive the continent of the gains achieved by much sacrifice. The essential requirement of stability in order to survive, to develop, and gradually to consolidate their independence in all fields, has induced African States judiciously to consent to the respecting of colonial frontiers, and to take account of its in the interpretation of the principle of self-determination of peoples’.).
(532) cf M Mutua ‘Why Redraw the Map of Africa: A Moral and Legal Inquiry’, 16 Mich JIL (1994–05) 1113.
(534) Váli above, n 483, p 321 (‘If a right in foreign territory is the result of territorial settlement, it is nothing but just and equitable that the State which succeeds to the political boundaries of the grantor State should also be burdened by the obligations which are equally the effect of a territorial arrangement.’).
(535) eg Hambro, Yrbk ILC, 1972, I, p 251, para 11.
(539) Waldock, Yrbk ILC, 1972, p 253, para 31.
(540) Yrbk ILC, 1972, I, p 275.
(541) Yrbk ILC, 1974, II, p 73, para 417.
(548) Vallat, First Report, above, n 263, p 83, para 431. (‘The underlying principle of continuity of boundary … rights and obligations may be expressed in different ways. It may be said that a successor State can only acquire such rights as it was within the power of the predecessor State to give and that the territory of the successor State must be subject to such limitations and obligations as adhered to the territory before the succession of States. It may be said that some treaties create real rights and obligations which are valid as against all the world … . [I]t may well be said that the successor State cannot inherit a larger territory than fell within the boundaries enjoyed by the predecessor State. A successor State which, for example, emerges to independence by seceding from another State cannot by that act automatically enlarge its boundaries and acquire territory at the expense of a third State.’).
(549) ibid 84, para 437 (‘If the principle of self-determination is to be applied, it should surely be applied equally with respect to the part of the territory of the neighbouring State which is claimed by the newly independent State.’).
(551) This is evidenced, in particular, in the ILC's earlier stalemate on the question of objective regimes. See above, p. 175.
(552) In its international sense, a servitude has been understood as denoting ‘exceptional restrictions made by treaty or otherwise on the territorial supremacy of a State by which part or the whole of its territory is in a limited way made to serve a certain purpose or interest of another State.’ R Jennings, and A Watts. Oppenheim's International Law (9th edn 1992) I, pp 670–1. See generally, H Lauterpacht, Private Law Sources and Analogies of International Law (1927) 119–124; H Reid International Servitudes in Law and Practice (1932); Váli, above, n 483; A Esgain, ‘Military Servitudes and the New Nations’ in W O'Brien, The New Nations in International Law and Diplomacy (1965) 42.
(553) eg, A McNair, ‘So-Called State Servitudes’ 6 BYIL (1925) 111, p 121; O'Connell, II, above, n 72, p 18 and ‘A Re-consideration of the Doctrine of International Servitude’ Can Bar Rev (1952) 807; P Guggenheim, Traité de Droit International Public (1953) I, pp 394–7; J Brierly, The Law of Nations (1963) pp 190–4; I Brownlie, Principles of Public International Law (5th edn 1998), pp 377–80.
(554) Keith, above, n 285, p 22; G Crusen, ‘Les Servitudes Internationales’, 22 Hague Recueil (1928) 31. cf however UK's position in relation to Finland: there would be succession only as regards treaties which were ‘in the nature of servitudes’. Yrbk ILC, 1970, II, p 32, doc A/CN4/224 and Add 1, para 3.
(556) PCIJ, (1923) Series A, no 1, pp 24–5 (in which the Court declared that it was ‘not called upon to take a definitive attitude with regard to the question … whether in the domain of international law, there really exists servitudes analogous to the servitudes of private law.’) Contra, Dissenting Judgment of Schücking who argued that ‘[t]he right to free passage through the Kiel Canal … undoubtedly assumes the form of a servitus juris publici voluntaria’. ibid, p 43.
(557) PCIJ, Order of 19 Aug 1929, Series A, no 22.
(558) LNOJ, Special Supp no 3 (1920) 16. The ICJ did not address the issue in the Rights of Passage case by reason of the fact that Portugal explicitly excluded that argument. But see, dissenting opinion of Judge Moreno Quintana.
(559) LNOJ, Special Supp no 3 (1920) 16. But see, Aix-la-Chapelle, RR Co v Thewis and the Royal Dutch Government, Intervener, 8 AJIL (1914) 907–13 in which mining rights under a Prusso-Netherlands Boundary Treaty of 1816 were regarded as ‘a sort of international servitude’. Esgain points out, however, that since no third party was involved in this case, resort to the concept of a servitude was unnecessary. See also, Tacna-Arica 23 AJIL (1929) Supp 183.
(560) Váli, above, n 483, pp 56–63. He suggests that ‘[t]here is hardly any other concept or doctrine of international law which has suffered such contemptuous criticism and blunt rejection, and at the same time enjoyed such unsubstantiated approval and wanton praise’, (p 42).
(562) FCO submission to ILA, UN doc A/CN4/224 and Add 1, Yrbk ILC, 1970, II, p 36, para 17.
(563) eg Nile Waters Agreement 1929, UN Doc A/5409, Yrbk ILC, 1974, II, paras 100–107; Berlin Act of 1885 (establishing régimes of free navigation on the Congo and Niger rivers); Suez Canal Convention of 1888.
(564) eg art 358 of the Treaty of Versailles which gave France the right to draw water from the Rhine (and imposed obligations upon Germany not to construct canals on the German side of the river).
(565) eg fishery rights in Newfoundland Waters established under Treaty of Ghent 1818 between Britain and the US.
(566) eg Articles 89 and 98 Treaty of Versailles, 1919; art 311 Treaty of St Germain; art 294 Treaty of Trianon. Waldock also suggested that this might extend also to air transport agreements, Yrbk ILC, 1972, I, p 249, para 85. On a dispute between Nigeria and France concerning the landing of aircraft on Nigerian soil see Elias, Yrbk ILC, 1972, I, p 261, para 88.
(567) eg Treaty of Paris 1856 concerning the Aaland Islands.
(568) eg duty not to fortify the Alsatian town of Hüningen under the Treaty of Paris 1815 survived the cession of Alsace to Germany in 1871 and its subsequent cession to France in 1919. See Oppenheim, (2nd edn 1912) I, p 207.
(569) Westlake suggested that France was obliged to recognize the neutrality of Chablais and Faucigny established under article XVII of the Congress of Vienna 1815 when they were ceded to it by Sardinia in 1860. J Westlake, International Law (1904, 2nd edn) I, p 61.
(571) eg, continuation of British-US base agreement in Newfoundland as confirmed by special agreement in 1952, cited in Váli, above, n 483, p 236 (see more generally ibid pp 208–52). For criticism see A Esgain, ‘Military Servitudes and the New Nations’ in W O'Brien, The New Nations in International Law and Diplomacy (1965) 78. On the American Bases in Morocco see Udokang, above, n 162, pp 353–7.
(576) Advisory Opinion, ICJ Rep 1950, 153.
(578) Statement of the Prime Minister of Tanganyika, 11 ICLQ (1962) 1210, p 1212 (‘We would not object to the enjoyment by foreign States of special facilities in our territory if such facilities had been granted in a manner fully compatible with our sovereign rights and our new status on complete independence. But such was not the case with the facilities which were granted to Belgium under the 1921 and 1951 Agreements. A lease in perpetuity of land in the territory of Tanganyika is not something which is compatible with the sovereignty of Tanganyika.’).
(580) T Elias, ‘The Berlin Treaty and the River Niger Commission’, 57 AJIL (1963); O'Connell, II, above, n 72, pp 307–10; Udokang, above, n 162, pp 367–76; Makonnen, above, n 194, pp 300–3; T Maluwa, ‘Succession to Treaties and International Fluvial Law in Africa: The Niger Regime’, 33 Neth ILR (1986) 334.
(586) eg Sette Câmara, Yrbk ILC, 1972, I, p 260, para 79.
(587) eg Ago, Yrbk ILC, 1972, I, p 264, para 18.
(588) Cuba, Yrbk ILC, (1974) II, p 74, para 417.
(589) For an historical review see C Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies (1967).
(590) Udokang, above, n 162, p 340 (asserting that capitulations ‘have not been universally accepted as constituting an indispensable category of dispositive treaties which devolve automatically upon successor States’.).
(593) eg pt IV Partition Plan for Palestine Mandate (1947), UN doc 19/516, 25th Nov 1947, p 23.
(594) cf Japanese termination of extraterritorial privileges in case of Korea in 1910.
(602) M. Craven, ‘What Happened to Unequal Treaties?: The Continuities of Informal Empire’ 74 Nordic JIL (2005) 335.
(603) On these see, Yrbk ILC, 1974, II, pp 172–3, paras 75–81.
(604) I Sinclair, ‘Some Reflections on the Vienna Convention on Succession of States in Respect of Treaties’, in Essays in Honour of Erik Castren (1978) 149, p 163.
(605) Yrbk ILC, 1974, I, p 80.
(606) The phrase ‘otherwise agreed’ obviously has two different connotations: one being that a successor State might agree ‘otherwise’ to apply the Convention notwithstanding the lack of any formal obligation to do so; the other being that it may ‘otherwise’ agree with other parties to vary the rules in the Convention even if they are formally applicable.
(607) UN Conference on Succession of States in Respect of Treaties: Official Records, vol I, pp 64–88.
(610) It was finally agreed that a third paragraph be added to art 12 excluding treaty obligations relating to ‘the establishment of foreign military bases’ from the scope of territorial régimes. See art 12(3) Vienna Convention (1978). For the declarations relating to demilitarization see UN Doc A/CONF80/C1/SR54.
(611) Official Records, I, pp 136, 137.
(613) Art 12 bis.
(616) eg E Bello, ‘Reflections on Succession of States in the Light of the Vienna Convention on Succession of States in Respect of Treaties 1978’, 23 GYIL (1978) 296; I Sinclair, ‘Some Reflections on the Vienna Convention on Succession of States in Respect of Treaties’, in Essays in Honour of Erik Castren (1978) 149; M Maloney, ‘State Succession in Respect of Treaties: The Vienna Convention of 1978’, 19 VaJIL (1978–79) 885; K Yasseen, ‘La Convention de Vienne sur la Succession d'Etats en matière de traités’, 24 AFDI (1978) 59; H Treviranus, ‘Die Konvention der Vereinten Nationen über Staatensukzession bei Verträgen’ 39 ZöV (1979) 259; R Szafarz, ‘Vienna Convention on Succession of States in Respect of Treaties: A General Analysis’, 10 PYrbkIL (1979–80) 77; D O'Connell, ‘Reflections on the State Succession Convention’ 39 ZöV (1979) 725; T Elias, ‘The Contribution of Asia and Africa to the Contemporary International Law’ 16 Africa Quarterly (1976) 1; R Lavalle, ‘Dispute Settlement under the Vienna Convention on Succession of States in Respect of Treaties’, 73 AJIL (1979) 407; Z Mériboute, La Codification de la succession d'états aux traités (1984); P Menon, The Succession of States in Respect to Treaties, State Property, Archives and Debts (1991). For reflections on the ILC draft art see G Caggiano, ‘The ILC Draft on the Succession of States in Respect of Treaties: A Critical Appraisal’, 1 Italian YBIL (1975) 69; J Stewart, ‘Draft Articles on the Succession of States in Respect of Treaties: The Pragmatic Development of International Law’, 16 HarvILJ (1975) 638. Some of the authors, such as Yasseen and Elias, had been directly involved in the process and their views were very much those of insiders. Others, such as Sinclair and Treviranus, had not been directly involved in the ILC's work, but had nevertheless been involved as members of State delegations at the 1974 Conference. Yet others, such as O'Connell, were figures whose work had been relied upon to a great extent during the drafting of the Convention, but whose general approach had been largely marginalized.
(620) Stewart, above, n 616, p 642; Treviranus, above, n 616, p 278; Bello, above, n 616, p 307. In the 1985 Maritime Delimitation case (Guinea/Guinea Bissau) 77 ILR 657, the arbitral tribunal held that ‘the relevant provisions of this latter Convention [as it deals with boundary regimes] 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’.
(621) Bello, above, n 616, p 307; Stewart, above, n 616, p 642. Maloney was critical of the Convention's apparent equivocation over the fate of boundary and territorial treaties which he saw to be a retreat from the ‘bedrock principle of customary international law’. Maloney, above, n 616, p 905. See also P Pazartzis, ‘State Succession to Multilateral Treaties: Recent Developments’, 3 ARIEL (1998) 397, p 398.
(626) For a critique of a similar nature see P Kooijmans, ‘State Succession and the 1929 Warsaw Convention: a Case Study’, in T Masson-Zwaan and P Mendes de Leon (eds), Air and Space Law: De Lege Ferenda (1992) 113, pp 122–5.