Document Type : Article
Authors
1 Associate Prof. Department of International Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran
2 Ph.D. Student in International Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran
Abstract
It is clear that the commission of an internationally wrongful act by a state establishes international responsibility for that state. The fact that committing such an act will impose obligations on the responsible state and create rights for the injured state is well established. However, there is a debate among scholars as to the possibility of succession for the responsible or the injured state in terms of the obligations or rights arising from such an act. Most scholars in this field believe in the traditional doctrine of "negative succession" or "absolute doctrine of non- succession". According to this doctrine, in case the responsible or injured state is succeeded by another state, the resulting rights or obligations prior to the date of succession will not be transferred to the successor state. This article, however, argues that due to the unique features of each type of succession, offering a general solution for the various types of succession is not only illogical, but is also, objectionable in situations such as the consent of the successor state, resort to the principle of unjust enrichment or territorial nature of internationally wrongful act. The doctrine of non-succession needs to be adjusted in view of the realities of international society and in accordance with fundamental principles such as protecting human rights and dignity, justice, equity and prevention of unjust enrichment. A realistic approach which is appropriate for the specific characteristics of different types of succession should be adopted.
Keywords
- A) Books
- Ansarian, Mojtaba & Tayebi, Sobhan (2017), Foundation and Succession of States, Tehran: Majd Publ (In Persian).
- Brownli, Ian )2003), Principles of Public International Law,6th edition, Oxford, Clarendon press.
- Daillier, Forteau and Pellet (2009), Droit International Public,LGDJ,8th edition.
- Dumberry, Patrick (2007), State Succession to International Responsibility ,Martinus Nijhoff publ.
- Dupuy, Pierre-Marie (1998), Droit international public,4thedition, Paris,Dalloz.
- Crawford, James (2016), State Responsibility The General part, translated by: AlirezaEbrahimGol and cooperators, Tehran: Sanglag Publ (In Persian).
- Lauterpacht,Hersch(1927). Private law sources and Analogies of international law, London:Longmans,Green and Co.Ltd.
- Maelksoo, Lauri (2003), Illegal Annexation and State Continuity:The Case of the Incorporation of the Baltic States by the USSR,Leiden,Martinus Nijhoff publ.
- Mikulka,Vaclav (1990), The Dissolution of Czechoslovakia and Succession in respect of treaties,Martinus Naijhoff publ.
- O’CONNELL,D.P (1970), International Law,London, Stevens & Sons, Vol.II.
- O’Connell, D.P. (1956), The Law of State Succession, Cambridge, Cambridge University Press.
- Stern, Brigitte (1998), Dissolution Continuation and Succession in Eastern Europe, The Hague, Martinus Nijhoff publ.
- Verzijl, J.H.W (1974), International Law in Historical Perspective, Leiden, A.W. Sijthoff, 9 vols.
- B) Articles
- Atlam,Hazem M (1987),“National Liberation Movements and International Responsibility”,in:Marina Spinedi and Bruno Simmaeds, United Nations Codification of State Responsibility,New York,Oceana,pp.258-281.
- Czaplinski, Wladyslaw (1990),“State Succession and State Responsibility”, 28 Canadian Y.I.L, pp.339-359.
- Fazaeli, Mostafa & Setayeshpur, Mohammad (2019),“Necessity of “State Succession on International Responsibility” in the perspective of International Law: Conception and Challenges”, Public Law Studies Quartery, No.49-3 (In Persian).
- Haddady, Mahdi & Setayeshpur, Mohammad (2017), “Scrutinizing the Necessity of ‘Derivative Responsibility’ In Light of ILC Works”, Public Law Studies Quartery, No.47-3 (In Persian).
- Jude, Irika (2018), “The Influence of Justinian Code in classical and post classical period”, University of Ibadan Nigeria,pp.1-11.
- Roth pfeffer,Tomas(1972),“Equity in the North Sea Continental Shelf Cases “, A Case Study in the Legal Reasoning of the International Court of Justice”,42 Nordisk Tidsskrift Int'l Ret 81, pp.81-103.
- Struma, Pavel (2016),“State Succession in Respect of International Responsibility”, The Geo.Wash.Int’l L.Rev, pp.653-678.
- Shafee, MirShahbiz & Bazzar, Vahid (2018), “Succession of States in Respect of State Responsibility”, Legal Research Quarterly, No.81 (In Persian).
- C) Documents
- Vienna Convention on Succession of States in respect of Treaties,1978,
- Vienna Convention on Succession of States in respect of State Property,Archives and Debts,1983.
- Nationality of Natural Persons in relation to the Succession of States,1999.
- UN/Human Rights Committee,General Comment No.26:Continuity of Obligations, doc.CCPR/C/21/Rev.1/Add.8/Rev.1,1997.
- The Peter Pázmány University,Appeal from a Judgment of the Hungary/ Czechoslovakia Mixed Arbitral Tribunal,P.C.I.J,1933.
- Diversion of Water from the Meuse,Neth v.Belg,(Hudson J Individual Opinion),P.C.I.J,1937.
- Robert.E.Brown, United States v.Great Britain,U.S-Great Britain Arbitral Commission,U.N.R.I.A.A.,1923.
- Hawaiian Claims case(F.H. Redward ),Great Britain v.United States,U.N.R.I.A.A., 1925.
- Lighthouse Arbitration case,France and Greece Arbitral Commission,U.N.R.I.A.A., 1956.
- Report by Mr. Manfred Laches , Chairman of the Sub_-Committee on Succession of States and Governments on the 15th Session of the International Law Commission, 1963, U.N. Doc. A/CN.4/160, I.L.C. Report, A/5509 (A/18/9),annex II, 1963.
- Report by Mr.Roberto Ago,Chairman of the Sub-Committee on State Responsibility on the 15th Session of the International Law Commission,1963.
- Report by Mr.Marcelo Kohen State Succession in Matters of State Responsibility, Yearbook of Institute of International Law,Tallinn Session ,vol 76,2015.
- Report by Mr.Pavel Struma-Special rapporteur, First Report on Succession of States in Respect of State Responsibility,69th session,A/CN.4/708,2017.
- Report by Mr.Pavel Struma-Special rapporteur Second Report on Succession of States in Respect of State Responsibility,70thsession,A/CN.4/719,2018.
- Commentaries to the ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts,GAOR,56th Session,Suppl.10,59,119.
- D) Dissertations
- Bagheri Abyaneh, Alireza (1390), "Legal Dimensions of Succession of States in respect of Economy", Phd’s Thesis, public international law of Allameh Tabatabai University (In Persian).
)