In the context of the break-up of the Soviet Union and Yugoslavia, the independence of Montenegro and the unification of Germany, can a new State be held responsible for wrongful acts committed before its independence by the predecessor State? This book is the most comprehensive analysis of State practice, case law and scholarship identifying the factors and circumstances under which the rights and obligations arising from wrongful acts committed before independence can be transferred to a new State. This updated and revised second edition covers new developments, including the recent works of the International Law Commission and the Institute of International Law.
Foreword to the First Edition (2007)
Acknowledgments to the Second Edition
Abbreviations
Part 1
General Introduction
General Introduction of Part 1
1The Issue Addressed in This Study
2The Objective of This Study
3Relevance of This Study When I Wrote the First Edition of This Book
3.1The Question Had Never Been Addressed by the ilc or by Any
International Law Scientific Institution
3.2The Doctrinal Analysis Was Very Limited and Generally Unsatisfactory
4Scope of This Study
4.1Meaning of State Succession
4.2Classification of the Different Types of Succession of States
4.3Fundamental Principles of State Responsibility in International Law
4.4The Term Internationally Wrongful Act Should Be Used Instead of
Tort
4.5This Study Does Not Deal with the Regime of State Responsibility for
Breaches of Rules of State Succession
4.6This Study Does Not Deal with the Issues of Odious Debts and War
Damage between the Predecessor State and the Successor State
4.7This Study Does Not Deal with Internationally Wrongful Acts Committed by
the Predecessor State against Its Own Nationals/Corporations
4.8This Study Does Not Deal with Wrongs Committed by Non-state Actors
Part 2
Succession of States to the Obligation to Repair
General Introduction of Part 2
1Analysis of Scholarship
1Introduction
2The Doctrine of Non-succession
2.1General Overview of the Doctrine
2.2The Arguments Invoked in Support of the Doctrine
3Challenges and Criticisms of the Doctrine of Non-succession
2Analysis of State Practice and Case Law
1Introductory Remarks on the Doctrinal Analysis of State Practice
2Incorporation of State
2.1Older Examples of Annexation of States Support the Principle of
Non-succession
2.2The Position Adopted in This Study and That of the Institute and the
ilc
2.3Modern State Practice Supports the Principle of Succession
3Unification of States
3.1The Position Adopted in This Study and That of the Institute and the
ilc
3.2State Practice Supports the Principle of Succession
4Dissolution of State
4.1The Position Adopted in This Study and That of the Institute and the
ilc
4.2Ancient State Practice Generally Supports the Principle of
Non-succession
4.3Modern State Practice Supports the Principle of Succession
5Cession and Transfer of Territory
5.1The Position Adopted in This Study and That of the Institute and the
ilc
5.2The Continuing State Remains Responsible for Internationally Wrongful
Acts Committed before the Date of Succession
5.3A Special Case: Acts Committed by Autonomous Entities
6Separation
6.1The Position Adopted in This Study and That of the Institute and the
ilc
6.2The Continuing State Remains Responsible for Internationally Wrongful
Acts Committed before the Date of Succession
6.3Examples Where the Principle of Succession Was Applied
7Newly Independent States
7.1The Position Adopted in This Study and That of the Institute and the
ilc
7.2Examples Where the Continuing State Remained Responsible for
Internationally Wrongful Acts Committed before the Date of Succession
7.3Examples where the Successor State Took Over the Obligations Arising
from the Commission of Internationally Wrongful Acts
8Conclusion to
Chapter 2
3Analysis of Specific Issues
1Introduction
2The Predecessor State Recognises Its Liability for an Internationally
Wrongful Act
3A Judicial Body Finds the Predecessor State Responsible for an
Internationally Wrongful Act
4The Successor State Accepts to Take Over the Responsibility for an
Internationally Wrongful Act
5The Successor State Continues an Internationally Wrongful Act Committed by
the Predecessor State
5.1Acts Committed by the Successor State after the Date of Succession
5.2Acts Committed by the Predecessor State before the Date of Succession
6An Insurrectional Movement Commits an Internationally Wrongful Act during
its Struggle to Establish a New State
7An Autonomous Government Commits an Internationally Wrongful Act
7.1The Position Adopted by the Institute and the ilc
7.2The Application of This Principle to Different Types of Succession
8The Use of the Principle of Unjust Enrichment to Resolve Issues of
Succession to Responsibility
8.1The Principle of Unjust Enrichment
8.2The Principle Has Been Mentioned by Courts Dealing with Issues of State
Succession
8.3Analysis of Scholarship and the Position Adopted in This Study
8.4Application of the Principle to Different Types of Succession of
States
9The Use of the Principle of Equity to Resolve Issues of Succession to
Responsibility
10The Relevance of the Territorial Factor to Resolve Issues of Succession
to Responsibility
10.1The Existence of a Direct Link between the Consequences of a Wrongful
Act and a Territory
10.2Violation of Territorial Regime Obligations
11The Relevance of Treaty Succession to Resolve Issues of Succession to
Responsibility
12Internationally Wrongful Acts Having a Special Character
12.1Commission of Odious Acts
12.2Breach of jus cogens Norms
4General Conclusion to Part 2
Part 3
Succession of States to the Right to Reparation
General Introduction of Part 3
5The Commission of an Internationally Wrongful Act Directly Affecting the
Predecessor State
1Introduction
2Analysis of Scholarship
2.1The Doctrine of Non-succession
2.2Challenges and Criticisms of the Doctrine of Non-succession
3Analysis of State Practice and Case Law
3.1Unification and Incorporation of States
3.2Dissolution of State
3.3Separation
3.4Newly Independent States
4Conclusion to
Chapter 5
6The Commission of an Internationally Wrongful Act Affecting a National of
the Predecessor State
1Introduction
2Analysis of Scholarship
2.1The Rule of Continuous Nationality in Diplomatic Protection
2.2The Application of the Rule of Continuous Nationality in the Context of
State Succession
2.3The Parties Are Free to Exclude the Application of the Rule of
Continuous Nationality
2.4The Rule of Continuous Nationality Is Not Appropriate in the Context of
State Succession
2.5The Successor State Has a Right to Claim Reparation on Behalf of Its New
Nationals for Internationally Wrongful Acts Committed before the Date of
Succession
3Analysis of State Practice and Case Law
3.1Cases Where Successor States Have Submitted Claims on Behalf of Their
New Nationals
3.2State Practice Where Reparation Was Provided to the Successor State for
Its New Nationals
3.3Cases Where the Rule of Continuous Nationality Was Applied
3.4The Specific Problem of Reparation Claims against the Former State of
Nationality
4Conclusion to
Chapter 6
Part 4
General Conclusion
General Conclusion
1The Foundations of the Doctrine of Non-succession Are Not as Solid as They
Appear to Be
2The Doctrine of Non-succession Remains supported by Many States
3Succession to the Obligation to Repair Essentially Depends on the Type of
Succession Involved and on Whether the Predecessor State Continues to Exist
4State Succession to the Obligation to Repair Depends on the Different
Factors and Circumstances Involved in Each Case
5The Issue of State Succession to the Obligation to Repair should
Ultimately be Resolved Based on the Application of Three Fundamental
Equitable Principles
6Solutions to Problems of State Succession to the Obligation to Repair
Remain Largely Based on the Consent of the Successor State
7The Successor State Has the Right to Claim Reparation for Internationally
Wrongful Acts Committed by a Third State before the Date of Succession
8The Tendency in Favour of Continuity of Rights and Obligations Is in
Accordance with Modern State Practice in Other Fields of State Succession
Annexes 1 to 3
Index
Patrick Dumberry, Ph.D., Graduate Institute of International Studies, Geneva, Switzerland, is Professor at the University of Ottawa (Law Faculty, Civil Law Section). He is the author of more than 90 publications in the fields of international investment law and international law, including nine books.
