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The Law of Treaties Beyond the Vienna Convention$

Enzo Cannizzaro

Print publication date: 2011

Print ISBN-13: 9780199588916

Published to Oxford Scholarship Online: September 2011

DOI: 10.1093/acprof:oso/9780199588916.001.0001

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Some Remarks on the Continuity of Human Rights and International Humanitarian Law Treaties

Some Remarks on the Continuity of Human Rights and International Humanitarian Law Treaties

Chapter:
(p.279) 17 Some Remarks on the Continuity of Human Rights and International Humanitarian Law Treaties
Source:
The Law of Treaties Beyond the Vienna Convention
Author(s):

Fausto Pocar

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199588916.003.0017

Abstract and Keywords

This chapter explores how the proliferation of newly independent states and state dissolution has resulted in greater complexity on the issue of state succession of treaty obligations. In particular, between the theories of tabula rasa succession and automatic state succession. The Human Rights Committee, the Convention on Succession of States in respect of Treaties, and the development of customary international law all bolster the imposition of automatic state succession with respect to international human rights and humanitarian law treaties. Automatic state succession is required by the special nature of human rights and humanitarian law. Thus, once a population is granted the protection of such rights, these rights devolve with the territory and a state cannot deny them. Furthermore, other international institutions have enforced these obligations resulting in the continuity of international human rights and humanitarian law treaties.

Keywords:   state succession, dissolution, humanitarian law treaties, Human Rights Committee, tabula rasa, continuity

1. Recent developments in international relations as well as significant changes in the constitutional structure of some states have brought about the existence of an increased number of new independent states which had previously been constituent parts of other states.1

Several problems of state succession in respect of treaties have arisen under international law as a result of such fragmentation of, or separation from, state entities. Since the beginning of the last decade of the twentieth century, several international fora, including international courts and other international bodies, have given special consideration to the treatment of international obligations entered into by the predecessor state under human rights and humanitarian law treaties.2 In particular, they have expressed concern that such events might lead to a decrease in the existing level of adherence to these types of treaties and respect for the standards enshrined therein on the territory of the newly independent states. The need arose, therefore, to determine whether the people living in the successor states would continue to benefit from the protections afforded to them.

It is important to recall, in this context, that the question of whether successor states succeed multilateral treaty obligations entered into by the predecessor state is not entirely settled in international law; however, the United Nations has deployed laudable efforts to codify this delicate field and to promote the (p.280) adoption of a coherent body of rules, with a view to supplementing the codified law of treaties3 and ensuring greater legal security. These efforts have led to the elaboration, within the framework of the International Law Commission (ILC), of the Convention on Succession of States in respect of Treaties, concluded in Vienna on 23 August 1978,4 which lays down some principles on this matter. The Convention, however, is the result of a compromise which had to take into account the positions of newly independent states emerging from colonial domination. It therefore reflects to a large extent the practice followed within the context of the decolonization process, whereby newly independent states claimed that the colonial powers formerly responsible for their territories did not necessarily act in their interest. Accordingly, international obligations entered into by the colonial powers regarding such territories could not automatically bind newly independent states and remained in force only subject to a unilateral assessment of that interest by each successor state followed by a declaration of succession.

Thus, according to the general rule set forth in Part III of the Convention, ‘a newly independent State is not bound to maintain in force, or to become a party to, any treaty by reason only of the fact that at the date of thesuccession of States the treaty was in force in respect of the territory to which the succession of States relates’.5 It is therefore, in principle, for a newly independent state to decide, by a notification of succession, whether to continue to be a party to a treaty which was in force in respect of the territory to which the succession of states relates, unless it appears that a continuing application of the treaty would be incompatible with the object and purpose of the treaty or would require the consent of all parties.6

However, this general rule is surrounded by a number of precisions and derogations, as well as by other rules which hardly concur to form a coherent framework providing legal certainty in all situations.7 In particular, different rules apply to uniting and separation of states,8 with special reference to the case of dissolution of the predecessor state or of separation of a part of that state to form a new state.

By virtue of Article 34(1) of the Convention,

… when a part or parts of the territory of a State separate to form one or more States, whether or not the predecessor State continues to exist: (a) any treaty in force at the date (p.281) of the succession of States in respect of the entire territory of the predecessor State continues in force in respect of each successor State so formed; (b) any treaty in force at the date of the succession of States in respect only of that part of the territory of the predecessor State which has become a successor State continues in force in respect of that successor State alone.

Although Article 34(2) makes the succession dependent upon the absence of a different agreement between the states concerned and the compatibility of the application of the treaty in respect of the successor state with the object and purpose of the treaty, the provision appears to sustain the position that in principle treaty obligations entered into by the predecessor state pass automatically on to the successor states. Furthermore, according to the chapeau of para. 1, the principle applies both in the case of new states arising out of the dissolution of a state and in the case of separation of parts of a state, which continues to exist.9

This provision, if applicable, would provide a basis for a solution to the question referred to above, in support of the continuity of treaty obligations on successor states. The Vienna Convention, however, only received a limited number of ratifications and accessions, which delayed its entry into force until 6 November 1996, between only a limited number of states.10 The problem of the continuity of treaties following the dissolution or the separation of parts of a state to form new states arose before that date, however; in particular, in relation to the formation of the new states which succeeded to the former Yugoslavia or separated from the Soviet Union at the beginning of the nineties.11 The Convention could not therefore be applied, as such, to issues arising out of the latter situations.

Thus, the more appropriate question to address is whether the rule enshrined in Article 34 of the Convention should be regarded as a codification of principles reflecting customary rules of international law relating to the succession of states in respect of treaties or, rather, as an innovative provision aimed at further developing international law in this field.12 Additionally, should one conclude that Article 34 did not reflect customary international law when it was drafted,13 the (p.282) question would still remain whether it had developed into a customary rule by the time the abovementioned events occurred or has done so since.

Admittedly, this issue is of general scope and may arise in the context of any kind of treaty and, thus, affords specific solutions for different categories of treaties.14 However, it is submitted that this issue is particularly significant for human rights and humanitarian law treaties. The brief remarks that follow will address the debate only insofar as these treaties are concerned.

2. State practice on the abovementioned issue is not very rich, though largely concordant, and it is undeniable that it has been influenced to a great extent by the position maintained by the Human Rights Committee on the matter. When faced with the question,15 the Committee expressed the view that, so far as human rights treaties are concerned—and without prejudice to the position that may be taken in relation to other categories of treaties—their provisions should be regarded as applying, on a continuing basis, to the people within the territories of the new states. Various indicators pointed in this direction, including the nature of the conventions striving to protect human rights and fundamental freedoms, whose purpose was not to provide individual advantages to the contracting states, but rather to reflect their common interest—ie, an interest of all mankind—in protecting human values. The intended universal application of such conventions provided an additional reason to conclude that, once the people living in a territory find themselves under the protection of an international instrument, this protection cannot be denied to them by virtue of the mere dismembering of that territory and its subsequent re-emerging within the jurisdiction of more than one state.

It is worth recalling, in this regard, that the Human Rights Committee affirmed the continuing applicability of the International Covenant on Civil and Political Rights to successor states of a former state having been party to the Covenant even before any declaration confirming their succession. Indeed, the Committee based its authority to request an urgent report from the governments of Bosnia and Herzegovina, Croatia, and the Federal Republic of Yugoslavia (Serbia and Montenegro) on 7 October 1992—as successor states of the Socialist Federal Republic of Yugoslavia—on the consideration that ‘all the peoples within the territory of the former Yugoslavia are entitled to the guarantees of the Covenant’.16 (p.283)

This statement was subsequently confirmed unanimously in a public meeting of the Committee, when its members had an opportunity to publicly express their views before considering the urgent reports submitted by the three successor states.17 During the debate, it was reaffirmed that the Committee's attitude had been made clear in the request,18 that this attitude ‘could assist in clarifying the uncertainty in international law over th[e] question’19 of state succession in respect of treaties, and ‘was helping international law in such a way that the Covenant would remain in force despite the division of a State’,20 or even that the Committee ‘had already begun to make law, and in a revolutionary manner’.21 As recalled above, the rationale for maintaining that the obligations of human rights treaties would pass automatically on to successor states appears to reside in the consideration that, once a population is under the protection of such a treaty, it cannot be denied the rights enshrined therein. As one member of the Committee put it: ‘the international instruments relating to human rights, besides being inter-State instruments, conferred rights on individuals, who could not be deprived of those rights in the event of State succession’.22 Similarly, another member expressed the view that ‘State succession should be viewed as a matter of the acquired rights of the population of the State that had ratified the Covenant, which were not diluted when a State was divided’.23

This debate clearly shows a firm general position on the principle affirmed in the decision adopted after the special reports submission request, although it also reveals some concern by members that the reports might not be submitted as requested or that the principle of automatic succession might be openly challenged by the successor states.24 This concern was later alleviated by the actual submission of the special reports within the deadline assigned by the Committee.

Upon consideration of the reports of the abovementioned states at its forty-sixth session,25 the Committee further explained (with the exception of Croatia, (p.284) whose government had meanwhile declared succession to the Covenant),26 both in the oral concluding observations of the meeting with the states’ delegations27 and in the written comments issued subsequently on the consideration of each report, that it regarded the submission of the report by the government of each state and the presence of the delegation as a mere ‘confirmation’ that the new state ‘had succeeded, in respect of its territory, to the obligations undertaken under the International Covenant on Civil and Political Rights by the former Socialist Federal Republic of Yugoslavia’.28

3. The same approach was subsequently followed by all treaty monitoring bodies established under the United Nations Conventions on human rights. When their chairpersons convened, as they regularly did, to discuss issues of common interest, they jointly reiterated that obligations under human rights treaties automatically bind successor states as of the date of their independence, and that observance of such obligations should not depend on a declaration of confirmation to that effect.29

Notwithstanding these firm statements by human rights treaty bodies, it cannot be overlooked that a confirmation was always regarded as desirable, following the position taken by the Human Rights Committee itself when it first took an initiative in this field. It is not surprising, therefore, that a confirmation was desirable to another United Nations human rights body, the Commission on Human Rights, whose membership—comprised of states’ delegations—inevitably devotes more attention to political implications of issues on the agenda, than is the case of bodies comprised of independent experts. When dealing with state succession to human rights treaties, the Commission considered it necessary to make a ‘call to successor States, who have not yet done so, to confirm to appropriate depositaries that they continue to be bound by obligations under human rights treaties’,30 to reiterate such a call,31 and subsequently to ‘welcome the progress made in the confirmation by some successor States of their obligations under human rights treaties’.32

This language clearly suggests that a treaty obligation continues ipso jure irrespective of a declaration of succession to the treaty, although the emphasis placed (p.285) on the call for confirmation may also give way to a different and more ambiguous interpretation. The latter, however, would not be justified. If the resolutions are taken in their entirety, the framework they refer to is that of a continuity of human rights treaties, rather than that of a tabula rasa where succession depends on a formal confirmation, as is the case for the succession to treaties concluded by a former colonial power. Indeed, each resolution begins by ‘bearing in mind relevant decisions of the Human Rights Committee and the Committee on the Elimination of Racial Discrimination on succession issues, in respect of international obligations in the field of human rights’, ‘emphasizes the special nature of the human rights treaties aimed at the protection of human rights and fundamental freedoms’, ‘requests the human rights treaty bodies to consider further the issue of the continuing applicability of relevant international human rights treaties with regard to successor States with the aim of assisting them in meeting their obligations’, and ‘requests the Secretary-General to inform successor States that they should confirm their obligations under the international human rights treaties to which their predecessors were a party, as from the date of their independence’.33 A consideration of the context of the resolutions makes it clear that they were adopted on the assumption that human rights treaties, because of their special nature, are automatically binding on the successor states.

4. The principle of automatic state succession to treaties, as affirmed by the Human Rights Committee with respect to the dissolution of the former Yugoslavia, has been consistently reaffirmed by the Committee with respect to the new states which became independent following their secession from the USSR.34 Most of these states deposited with the Secretary-General of the United Nations a declaration of accession to the Covenant, on different dates after their independence.35 The Committee stressed that, in its opinion, the entry into force reverted back to the date when each state became independent,36 notwithstanding that the declaration of accession did not specify that it had such retroactive effect. (p.286)

This position does not appear to have been challenged by the interested countries, either in general or during the consideration of their reports under Article 40 of the Covenant. The deposit of an instrument of accession instead of a declaration of succession appears to have been chosen by these newly independent states in order to stress that they did not regard themselves as successors to the USSR within the meaning of Article 34 of the Vienna Convention, rather than to challenge the continuity of their obligations under the Covenant.37 And indeed, when they submitted their reports, their delegations did not raise any objection to questions asked of them by Committee members concerning events that occurred before the date of their accession, thus confirming that they considered that they were bound by the Covenant as of the date of their independence.38

But the Committee went even further, and regarded a successor state as bound by the Covenant even when the state had not made a declaration of accession or succession. Such was the case of Kazakhstan, which was listed in the Committee's report to the General Assembly as a state party, although no declaration of accession or succession had been received.39 Accordingly, on 24 July 2000, the Committee decided to request that Kazakhstan submit its initial report by 31 July (p.287) 2001, in the absence of an instrument of succession.40 When the report was not received, the Committee reiterated its invitation to the government to submit the initial report ‘at its earliest convenience’.41

The practice of the Human Rights Committee on the continuity of human rights treaties therefore seems well established. A further confirmation thereof may be drawn from the rejection of any attempt to move towards a different approach, not only in the field of state succession, but also in related areas, such as reservations42 to or denunciation of the Covenant. Thus, when a state party declared its withdrawal from the Covenant, the Committee deemed it appropriate to take a formal position thereon43 through the adoption of a General Comment, whereby it observed that ‘the drafters of the Covenant deliberately intended to exclude the possibility of denunciation’, and concluded that ‘international law does not permit a State which has ratified or acceded or succeeded to the covenant to denounce it or withdraw from it’.44 In reaching this conclusion the Committee took the opportunity to reiterate its longstanding practice ‘that the rights enshrined in the Covenant belong to the people living in the territory of the State party’, and that

… once the people are accorded the protection of the rights under the Covenant, such protection devolves with territory and continues to belong to them, notwithstanding change in Government of the State party, including dismemberment in more than one (p.288) State or State succession or any subsequent action of the State party designed to divest them of the rights guaranteed by the Covenant.45

5. Besides human rights bodies, the issue of state succession to human rights and humanitarian law treaties was brought to the attention of international courts in the context of the Balkans. In particular, the International Court of Justice was presented with the question whether Bosnia and Herzegovina had automatically succeeded to the Genocide Convention of 1948—which was denied by Yugoslavia—for the purpose of establishing its competence under Article IX of the Convention. The Court, however, did not address the issue in these terms, as it considered the parties bound by the Convention, in any event, when the application before the Court was filed.46 However, two judges did so in their separate opinions, and maintained, although with different argument and force, that the Genocide Convention was automatically applicable to the successor states to the former Socialist Federal Republic of Yugoslavia, which was a party thereto.

In particular, Judge Weeramantry conducted a thorough analysis of the theories relating to state succession, including the bases of the clean slate principle and the necessary exceptions thereof. He observed that ‘human rights and humanitarian treaties involve no loss of sovereignty or autonomy of the new State, but are merely in line with general principles of protection that flow from the inherent dignity of every human being which is the very foundation of the United Nations Charter’, and that ‘the international community has a special interest in the continuity of such treaties’.47 Without taking a firm position on the issue of whether all human rights treaties should be exempted from the clean slate principle, he then brought forward a number of reasons favouring the view of an automatic succession to the Genocide Convention, including those put forward by the Human Rights Committee, and concluded that ‘[a]ll the foregoing reasons combine to create what seems to me to be a principle of contemporary international law that there is automatic State succession to so vital a human rights convention as the Genocide Convention’.48

In turn, Judge Shahabuddeen recalled the special characteristics of the Genocide Convention as identified in the Court's Advisory Opinion on the reservations to the Convention,49 and pointed to an ‘inescapable time-gap in the protection which the Genocide Convention previously afforded to all of the “human groups” comprised in the former Socialist Federal Republic of Yugoslavia’ that should occur if the successor states were regarded as not bound by the Convention, (p.289) a time-gap which would be inconsistent with the Convention.50 He therefore concluded that the Convention ‘would fall to be construed as implying the expression of a unilateral undertaking by each party to the Convention to treat successor States as continuing as from independence any status which the predecessor State had as a party to the Convention’. In his view, however, the necessary consensual bond would only be completed ‘when the successor State decides to avail itself of the undertaking by regarding itself as a party to the treaty’.51

The problem of state succession was also raised, in the different context of assessing individual criminal responsibility for grave breaches of the Geneva Conventions of 12 August 1949, before the International Criminal Tribunal for the Former Yugoslavia.52 Rejecting the appellant's argument that the said Conventions were not in force for Bosnia and Herzegovina between the date of the country's independence (6 March 1992) and the date of the deposit of its declaration of succession (31 December 1992),53 the Appeals Chamber of the Tribunal expressed the view that ‘irrespective of any finding as to formal succession, Bosnia and Herzegovina would in any event have succeeded to the Geneva Conventions under customary law, as this type of conventions entail automatic succession, ie, without the need for any formal confirmation of adherence by the successor State’.54 It added that ‘it may be considered in international law that there is automatic succession to multilateral treaties in the broad sense, ie, treaties of universal character which express fundamental human rights’.

It has to be stressed that the issue of automatic succession was especially significant in this case, as it did not affect only the continuity of the state's obligations to apply the relevant conventions, as was the case discussed before the International Court of Justice, where the gap could be remedied by a declaration of succession taking effect as of the date of independence, but also and more importantly the possibility of characterizing a serious violation of the Conventions attributable to an individual as a crime under international law. A retroactive declaration of succession, as was indeed deposited by the successor state in the case at hand, would not have been sufficient to this effect, in light of the principle of legality, which is imperative in criminal law, and according to which no one can be held criminally responsible for any conduct which did not constitute a criminal offence under (p.290) national or international law, at the time it was committed.55 In this context, therefore, the finding of the Appeals Chamber of the Hague Tribunal that ‘there was no gap in the protection afforded by the Geneva Conventions, as they, and the obligations deriving therefrom, were in force for Bosnia and Herzegovina at the time of the acts alleged in the Indictment’,56 acquires a significant value.

6. The recent international practice, as described above, no doubt serves to clarify international law pertaining to the delicate issue of state succession to treaties, and to better understand the solutions put forward in the Vienna Convention of 1978 on this matter. In particular, Article 34 of the Convention finds a substantial confirmation, at least insofar as human rights treaties are concerned, and it would be inaccurate to reject such practice as irrelevant. Likewise, it is inaccurate to maintain that the principle of the continuity of treaties in the case of dismemberment of or separation from a state was adopted by the ILC with the declared intent to contribute to the progressive development of international law, rather than to codify a corresponding rule of customary law.57 As the Commission manifestly declares, its conclusions were indeed based on a review of the state practice and on an assessment of its sufficient consistency to support the formulation of a rule in favour of continuity.58

These conclusions are, of course, a matter for discussion in legal doctrine. In the case of state succession, notwithstanding the declared position of the ILC, it may be disputed whether state practice was ‘sufficiently consistent’ at the time when the Convention was drafted to justify the adoption of a general rule affirming the continuity of all multilateral treaties as a rule reflecting existing customary law. However, even if a different assessment of the then available state practice were to raise doubt as to whether the provision of Article 34 was grounded on customary international law, the question would still remain whether customary international law evolved in that direction thereafter, if not in respect of all treaties, at least in respect of human rights treaties.

From this perspective, it cannot be overlooked that the Convention itself must be regarded as a significant expression of state practice, as the Convention was charged, within the competency of the General Assembly via the UN Charter, (p.291) to make recommendations for the development and codification of international law;59 was adopted by a conference with the participation of the entire international community; and was subsequently accepted by number of states. As shown above with respect to human rights treaties, the rule adopted on that occasion has been subsequently confirmed by international practice without any clear exception. There is, therefore, material evidence of state practice moving towards recognition of the principle of continuity as the principle governing state succession to treaties concerning human rights and humanitarian law. Whether this practice requires further corroboration prior to becoming a firm customary international rule may certainly be questioned,60 but it cannot be denied that significant arguments, including those of a general nature, can be invoked in favour of the existence of such a rule.

First, it should be recalled that the Vienna Convention, by adopting two distinct legal regimes pertaining to state succession to treaties—the tabula rasa regime for newly independent states whose territory was previously subjected to colonial domination and the continuity regime for uniting and separation from states to form new states—does not appear to affirm the first regime as the general one and the second as a derogation thereof. Rather, it simply takes note of the general request from developing countries to accede to independence utterly free from any obligation entered into by colonial powers, and gives priority to the former only because of its special political importance when the Convention was drafted. But, with the end of the decolonization process this part of the Convention will become obsolete, and is arguably already obsolete to a certain extent.61 It is no surprise that the Convention took the view that the entire issue of state succession to treaties should not be affected and ‘contaminated’ by a regime aimed at resolving a temporary and transitional situation and, instead, opted for two distinct regimes—the second expected to be the more ‘stable’, or even to become the general regime.

In addressing this more durable regime, the ILC appears to trace a separation between the practice as developed in the pre-United Nations era and the practice subsequent to the Charter. While it accepts that the former provided support for the clean slate rule, it is guided by the more recent practice in the United (p.292) Nations period, which would only occasionally support the approach that a territory becoming independent because of the dissolution or the separation from a state might be regarded as a ‘newly independent state’ to which the clean slate rule should apply.62 And indeed, the United Nations period is rather characterized by multilateral treaties of a normative nature that are of paramount interest to the international community on account of their continuing application in territories of the states parties, irrespective of dissolution into more states or partial separation to form a new state.

Whether this approach is justified for all multilateral treaties concluded in the United Nations period may be questionable. But this is certainly the case for human rights and humanitarian law treaties, as evidenced by their special nature. Legal doctrine and state practice are in agreement in their corresponding emphasis on the fact that in these kinds of treaties

… the contracting States do not have any interest of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties.63

A similar approach is echoed by legal doctrine, when it writes that ‘the special body of international law characterized as human rights law is strikingly different from the rest of international law, in that it stipulates that obligations are owed directly to individuals (and not to the national government of an individual)’.64 This entails a common interest of the international community to see that the application of human rights treaties continue without any gap due to dismemberment of states or secession of parts of their territories.65

Admittedly, international practice supporting continuity of human rights and humanitarian law treaties is not always very clear about the reasons behind this position, which is sometimes accepted as such without any further explanation under the pressure of international human rights bodies, as the experience of the Human Rights Committee abundantly shows. However, on one hand this is a feature common to other rules of customary international law, which, although based on the assessment that certain conduct has to be regarded as legally binding, fail to manifest the reasons for supporting such an assessment. It is clear (p.293) enough, on the other hand, that an opinio juris in favour of continuity manifestly finds its justification in the special nature of these treaties as shown above—ie in the treaties’ recognition of state obligations not (or not only) to other states, but to individual human beings—a feature that is self-evident and need not be invoked by a new state when acquiescing to human rights obligations entered into by a predecessor state.

From such recognition international practice appears to draw the inference that the rights enshrined in these treaties, once granted protection over a territory, are vested in the persons living therein, so that their protection cannot be taken away following changes in the legal situation of the territory concerned.66 Some legal doctrine builds on this practice, by drawing an analogy between a treaty vesting human rights and dispositive treaties vesting property rights, which, according to established practice, cannot be weakened in the case of state succession.67 Whether such an analogy correctly interprets the legal situation arising out of human rights treaties may be a matter for further discussion, since it would be based on a construction whereby continuity will be established only as an exception to a general rule based on the clean slate principle—a construction which may be debatable in light of the structure of the Vienna Convention of 1978, as described above. However, even assuming that this is still a cogent construction under modern international law, it remains to be considered whether a proper analogy may be drawn between dispositive treaties such as those vesting property rights, and treaties affording protection to rights which are recognized as inherent to human beings. Furthermore, recourse to such an analogy is not strictly necessary. Rather, an approach based on the nature of the obligations entered into by states parties upon the conclusion of human rights and humanitarian law treaties can more appropriately justify an exception from a general rule inspired by the clean slate principle and be better suited to provide the grounds for explaining why such kinds of treaties enjoy continuity under customary international law. (p.294)

Notes:

(1) For a thorough analysis of these situations see in particular B. Stern, ‘La succession d'Etats’, 262 Recueil des Cours (1996) 9-438. See also J. Crawford, ‘State Practice and International Law in Relation to State Succession’, BYIL (1998) 85–117.

(2) Among them the Human Rights Committee established under the International Covenant on Civil and Political Rights, has played a significant role, as will be shown later. On the Committee and its function, in particular on the consideration of state reports, see D. McGoldrick, The Human Rights Committee. Its Role in the Development of the International Covenant on Civil and Political Rights (Oxford: Clarendon Press, 1991) 62–119; F. Pocar, ‘The International Covenant on Civil and Political Rights’, in Manual on Human Rights Reporting (Geneva: United Nations, 1997) 171–266.

(3) As reflected in the 1969 Vienna Convention on the Law of Treaties, 1155 UNTS, 331.

(4) 1946 UNTS, 3.

(5) See Article 16 of the Convention, first provision of Part III, titled ‘Newly Independent States’.

(6) See Article 17 of the Convention. The consent of the other party would in any event be required in the case of bilateral treaties.

(7) For a discussion of the Convention's solutions, also in relation to the American Law Institute's Restatement (Third) on the Foreign Relations Law of the United States (1987), see D. F. Vagts, ‘State Succession: The Codifiers’ View’, 33 Va J Int'l. L (1993) 275–97.

(8) See Part IV of the Convention. This difference of treatment between newly independent states because of decolonization and following uniting or separation of states has sometimes been severely criticized in legal doctrine, though with arguments which do not appear persuasive in light of state practice. See B. Conforti, Diritto Internazionale (Napoli: Editoriale Scientifica, 7th edn, 2006) 106, who maintains, however, that the affirmation of the principle of continuity of treaties in Article 34 of the Convention does not reflect customary international law.

(9) For the reasons that justify the same treatment of ‘dissolution of a state’ and ‘separation of part of a state’ see YILC (1974), vol. II(1), 265, paras 21–24.

(10) On 4 May 2010, there were 22 states parties to the Convention, among them the successor states of the former Yugoslavia, which declared to succeed to the Convention as ratified by their predecessor state. Another 15 states had signed the Convention, but not ratified it.

(11) In the case of the former Yugoslavia, which had ratified the Vienna Convention on 28 April 1980, the Convention was therefore not in force at the time when it dissolved into new states, at the beginning of the 1990s. Likewise, it was not in force for the Soviet Union, which had neither signed nor ratified it.

(12) The Conference where the Convention was drafted was indeed ‘convinced … of the need for the codification and progressive development of the rules relating to succession of States in respect of treaties as a means for ensuring greater juridical security in international relations’: see the third preambular paragraph of the Convention.

(13) See, among others, B. Conforti, Diritto internazionale, supra note 8; R. Mullerson, ‘New Developments in the Former USSR and Yugoslavia’, 33 Va. J Int'l L (1993) 316.

(14) D.F. Vagts, ‘State Succession: The Codifiers’ View’, supra note 7, 289–97.

(15) The first occasion on which the Committee was seized with this issue was in 1992, in relation to the continuity of human rights treaties entered into by the former Socialist Federal Republic of Yugoslavia.

(16) See the second preambular paragraph of the request. This position was initially taken by the Chairman of the Committee in a letter sent to the other Committee members on 18 September 1992. As the Committee was not in session when information of the grave violations of the Covenant's protected rights reached Geneva in the summer of 1992, its Chairman took the initiative of asking the members of the Committee to authorize him, by fax or telegram and in derogation from the Rules, to request the successor states to the Republic of Yugoslavia to submit an urgent report limited to measures taken to prevent and repress violations of Articles 6, 7, 9, 10, 12, and 20 of the Covenant. The subsequent endorsement of the Chairman's proposal by all Committee members resulted in the issuance of a formal request by the Committee ‘through its Chairman acting on behalf of and in consultation with the members of the Committee’. For the text of the request see CCPR/C/SR.1178/Add.1, and CCPR/12/Add.1 (Official Records of the Human Rights Committee, 1992/93, vol. II, 1997, 504–5). The adoption of this exceptional procedure led later on to an amendment of the Committee's Rules, whereby, by derogation from the rule that a request for a report must be made by the Committee, ‘in the case of an exceptional situation when the Committee is not in session, a request may be made through the Chairman, acting in consultation with the members of the Committee’. See the new version of Rule 66, adopted on 8 April 1993, in CCPR/12/Add.1, 506.

(17) See the Summary Record of the 1178th meeting held on 19 November 1992, CCPR/C/SR.1178/Add.1.

(18) Intervention of Nisuke Ando, ibid.

(19) Intervention of Rosalyn Higgins, ibid.

(20) Intervention of Julio Prado Vallejo, ibid.

(21) Intervention of Francisco Aguilar Urbina, ibid.

(22) Intervention of Rein Mullerson, ibid.

(23) Intervention of Alejandro Serrano Caldera, ibid.

(24) See, in particular, the interventions of Andreas Mavrommatis and Kurt Herndl, ibid.

(25) The three reports were considered on 3–4 November 1992: see CCPR/C/SR.1200-1202/Add.1.

(26) Croatia's declaration of succession to the International Covenant was made on 12 October 1992, with the indication to succeed ‘as of the date of independence’ (8 October 1991).

(27) See the Chairman's statements respectively in CCPR/C/SR.1200, para. 52 (Bosnia and Herzegovina), and CCPR/C/SR.1202/Add.1, para. 33 (Federal Republic of Yugoslavia/Serbia and Montenegro).

(28) See the concluding Comments of the Committee in CCPR/C/79/Add.14 to 16, and in Report of the Committee, Seventeenth Report, GAOR, Forty-eighth Session, Supplement No. 40 (A/48/40), vol. I (1993), paras 328 (Bosnia and Herzegovina) and 384 (Federal Republic of Yugoslavia/Serbia and Montenegro); also in CCPR/12/Add.1, supra note 16, 427 and 434.

(29) See the report of the meeting of 19–23 September 1994, Doc. E/CN.4/1995/80, 28 November 1994, 3.

(30) Resolution 1993/23 of 5 March 1993.

(31) Resolution 1994/16 of 25 February 1994 and 1995/18 of 24 February 1995.

(32) Resolution 1995/18, supra note 31.

(33) The quotations are taken from resolution 1994/16, supra note 31 (last emphasis added).

(34) The continuity of the USSR with the Russian Federation was recognized on 27 December 1991. On the issue of the succession or continuity of Russia in respect of the USSR, see R. Mullerson, ‘New Developments in the Former USSR and Yugoslavia’, supra note 13, 302.

(35) That was the case for Armenia (23 June 1993), Azerbaijan (13 August 1992), Estonia (21 October 1991), Georgia (3 May 1994), Kyrgyzstan (7 October 1994), Latvia (14 April 1992), Lithuania (20 November 1991), Republic of Moldova (26 January 1993), andTurkmenistan (1 May 1997). With respect to these countries, the Human Rights Committee reiterated in 1993 that ‘all the people within the territory of a former State party to the Covenant remained entitled to the guarantees of the Covenant and that, in particular, Armenia, Georgia, Kazakhstan, Kirghizstan, Tadzikistan, the former Federal Republic of Macedonia, Turkmenistan and Uzbekistan, were bound by the obligations of the Covenant as from the date of their independence’: see Report of the Human Rights Committee, GAOR, Forty-ninth Session, Supplement No. 40 (A/49/40), vol. I (1994), para. 49.

(36) Ftn (b) appended to each of these states in the list of states parties to the Covenant as published annually by the Committee in its report, clarifies that, irrespective of the date of accession, the entry into force goes back to the date of independence: see eg Report of the Human Rights Committee, GAOR, Fifty-sixth Session, Supplement No. 40 (A/56/40), vol. I (2001), Annex I.

(37) See also F. Lattanzi, ‘Brevi osservazioni su successione fra Stati e accordi internazionali in materia di diritti dell'uomo’, in A. Del Vecchio (ed.), La successione degli Stati nel diritto internazionale (Milano: Giuffrè, 1999) 65. A special case was that of the Baltic states, which maintained that they had resumed their sovereignty after having been occupied by the Soviet Union in 1940. See M.T. Kamminga, ‘State Succession in Respect of Human Rights Treaties’, 7 EJIL (1996) 479, reporting that ‘[t]he Baltic States therefore do not regard themselves as new States but as States re-exercising the sovereignty of which they had been illegally deprived’; R. Mullerson, ‘New Developments in the Former USSR and Yugoslavia’, supra note 13, 309, stating that these states ‘restored their independence lost in 1940’.

(38) See eg, as to Azerbaijan, the position taken by the Human Rights Committee by noting ‘that Azerbaijan has declared that it is bound by the Covenant through a declaration of accession, though it would have been correct for it to have regarded itself as succeeding to the obligations of the Covenant as a State of the former Soviet Union’: Report of the Human Rights Committee, GAOR, Forty-ninth Session, Supplement No. 40 (A/49/40), vol. I (1994) 294. During the examination of the report it was pointed out that ‘the Azerbaijani delegation must have noticed that members of the Committee had mentioned events occurring before the Government declared its accession to the Covenant’, and it was reiterated, recalling the position of the Committee as endorsed by the Commission on Human Rights in its resolution 1994/16 of 25 February 1994, ‘that any sovereign successor State was bound by the obligations of the Covenant from the day of its independence’. A distinction was, however, made between substantive obligations to protect the Covenant's rights and obligations of cooperation with monitoring bodies, by noting that ‘where the submission of initial reports was concerned, the Committee could accept that the obligation came into force as from the date of accession, but the date of independence should continue to be the starting point for all the other obligations’: see the intervention of Fausto Pocar, in Summary Record of the 1332nd meeting held on 12 July 1994, CCPR/C/SR.1332, para. 67.

(39) See Report of the Human Rights Committee, GAOR, Fifty-fourth Session, Supplement No. 40 (A/54/40), vol. I (2000) 102, Ftn (d), where the Committee reiterates that ‘the people within the territory of the State—which constituted part of a former State party to the Covenant—continue to be entitled to the guarantees enunciated in the Covenant in accordance with the Committee's established jurisprudence’. A more prudent approach was taken by the Secretary-General when publishing the list of states parties to the Covenant, as that list contains no mention of Kazakhstan. See Multilateral treaties deposited with the Secretary-General, Status at 31 December 2000 (ST/LEG/SER.E/19), vol. I, 173.

(40) See CCPR/C/SR.1860, para. 55.

(41) See Report of the Human Rights Committee, GAOR, Sixtieth Session, Supplement No. 40 (A/60/40), vol. I (2005) para. 79. The smoother language employed in reiterating the request most likely reflects the fact that in the meantime Kazakhstan had signed the Covenant on 17 November 2003. The Covenant was eventually ratified on 24 January 2006: Report of the Human Rights Committee, GAOR, Sixty-fourth Session, Supplement No. 40 (A/64/40), vol. I (2009) 201, Ftn (d), where the Committee explains that ‘prior to the receipt by the Secretary-General of the United Nations of the instrument of ratification’, the Committee's position was as referred to above in note 35.

(42) See, eg, General Comment No. 24 (52) on ‘Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant’, 4 November 1994, in CCPR/C/21/Rev.1/Add.6, which contains significant clarifications about the object and purpose of the Covenant. Although it does not deal expressly with state succession, the omission of a reference to ‘succession’ in the title clearly implies that no reservation can be made in a declaration of succession, the latter being automatic as to all the obligations under the Covenant. On the issue of state succession as to reservations made by the predecessor state see G. Gaja, ‘Reservations to Treaties and the Newly Independent States’, 1 Ital. Yb. Int'l L. (1975) 52–68.

(43) On this case, concerning the People's Democratic Republic of Korea, see, also for the relevant documents, F. Pocar, ‘Sulla possibilità di ritiro dal Patto internazionale sui diritti civili e politici’, Rivista di diritto internazionale privato e processuale (1977) 1073–84.

(44) General Comment No. 26 (61) on ‘Issues relating to the continuity of obligations to the International Covenant on Civil and Political Rights’, 29 October 1997, in CCPR/C/21/Rev.1/Add.8, and Report of the Committee, GAOR, Fifty-third Session, Supplement No. 40 (A/53/40), vol. I (1998), Annex VII, 102.

(45) General Comment No. 26 (61), supra note 44, para. 4.

(46) ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Yugoslavia), Preliminary Objections, Judgment of 11 July 1996, ICJ Reports (1996) 19.

(47) Ibid., 54.

(48) Ibid., 63.

(49) ICJ, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion of 28 May 1951, ICJ Reports (1951) 23.

(50) ICJ, Application of the Convention, supra note 46, 54.

(51) Ibid., 45.

(52) Prosecutor v Delalić et al. (‘Čelebići Case’), Case No. IT-96-21-A, Appeals Chamber, Judgment of 20 February 2001. Article 2 of the Statute of the ICTY, as adopted by Security Council resolution 827 (1993) of 25 May 1993 (S/RES/827 (1993)), establishes that the Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the 1949 Geneva Conventions, and lists the acts which constitute grave breaches if committed against persons or property protected under the provisions of the relevant Geneva Convention.

(53) Prosecutor v Delalić et al., supra note 52, paras 107–115.

(54) As the Judgment notes (Prosecutor v Delalić et al., para. 111 in fine), it is noteworthy that Bosnia and Herzegovina itself recognized this principle before the ICJ. In its Judgment of 11 July 1996, the Court noted that Bosnia and Herzegovina ‘contended that the Genocide Convention falls within the category of instruments for the protection of human rights, and that consequently, the rule of ‘automatic succession’ necessarily applies’ (ICJ Reports (1996), para. 21).

(55) Cf. Article 15(1) of the ICCPR, from which no derogation can be made even in time of public emergency (see Article 4 thereof). As to para. 2, it permits retroactive domestic legislation for the prosecution of crimes such as war crimes and crimes against humanity, but does not allow for retroactive international law, in particular international treaty law. See M. Nowak, U.N. Covenant on Civil and Political Rights. CCPR Commentary (Kehl am Rhein: Engel, 2nd rev. edn, 2005) 368.

(56) Para. 114 of the Judgment.

(57) B. Conforti, Diritto internazionale, supra note 8, p. 106.

(58) See YILC (1974), vol. II(1), 265, No. 25. In answering the question whether the principle of continuity or the clean slate principle should be applied to the situations envisaged, the Commission concluded that ‘although some discrepancies might be found in State practice, still that practice was sufficiently consistent to support the formulation of a rule which, with the necessary qualifications, would provide that treaties in force at the date of the dissolution should remain in force ipso jure with respect to each State emerging from the dissolution’.

(59) Article 13, para. 1 of the UN Charter.

(60) See, eg, M.N. Shaw, International Law (Cambridge: Cambridge University Press, 5th edn, 2003) 885–9. After reviewing most of the practice also considered in the present chapter, he observes that ‘the question of continued application of human rights treaties within the territory of a predecessor state irrespective of a succession is clearly under consideration. Whether such a principle has been clearly established is at the present moment unclear’ (at 889). In the sense that a customary rule of this kind is developing as an exception from the clean slate principle, see recently S. Bariatti, ‘L'accordo nel sistema delle fonti e il diritto dei trattati’, in S.M. Carbone, R. Luzzatto, and A. Santa Maria (eds), Istituzioni di diritto internazionale (Torino: Giappichelli, 3rd edn, 2006) 121.

(61) This may perhaps explain why only a few ‘newly independent states’ have become parties to the Convention, notwithstanding the favorable regime provided, which had however already been applied in practice.

(62) The obvious case is that of the separation of West and East Pakistan from India, and the subsequent separation of East Pakistan to form Bangladesh. This case is distinguishable, however, because it can easily be associated with the decolonization process.

(63) See the ICJ, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion of 28 May 1951, supra note 49, 23.

(64) R. Higgins, Problems and Process. International Law and How We Use It (Oxford: Clarendon Press, 1994) 75.

(65) The need for avoiding any gap in the application of these treaties has been rightly underlined by W. Jenks, ‘State Succession in Respect of Law-Making Treaties’, 29 BYIL (1952) 109; by Judge Weeramantry in his Separate Opinion, supra note 47, para. 7, as well as by Judge Shahabuddeen in his Separate Opinion, supra note 50.

(66) This is the position adopted by the Human Rights Committee in its General Comment 26(61), supra note 44, para. 4.

(67) See, eg, R. Mullerson, ‘The Continuity and Succession of States, by Reference to the Former USSR and Yugoslavia’, 42 ICLQ (1993) 490; M.N. Shaw, ‘State Succession Revisited’, 5 Finnish YIL (1994) 82; A. Rasulov, ‘Revisiting State Succession to Humanitarian Treaties: Is There a Case for Automaticity?’, 14 EJIL (2003) 141–70.