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 @ The Author 2013. Published by Oxford University Press. All rights reserved
doi: 10.1 093/chinesejil/jmt0 17; Advance Access publication 30 May 2013

Decolonization and the

International Law of
Succession: Between Regime
Exhaustion and Paradigmatic
Inconclusiveness
Jean d'Aspremont*

Abstract

The international law of succession has always been portrayed as being in a

state of crisis. Whilst this crisis was long one of formal existence, the entering
into force of the 1978 Vienna Convention international law of State succes-
sion in respect of treaties did not put an end to the-more profound-
paradigmatic crisis at the heart of the international law of succession.
Against this backdrop, this essay starts by recalling the two conflict objectives
that were simultaneously pursued during the codification of the international
law of State succession in respect of treaties (Section II). It then outlines how
the codification process could hardly distance itself from the fresh reality
(and the emotions) of decolonization, the latter eventually hovering over all
the debates unfolding at that time (Section III). It goes on to describe the
rules specifically designed to address questions of succession in connection
with the decolonization process (Section IV). This essay subsequently
recalls how the implosion of the USSR and Yugoslavia brought about a re-
pudiation of the international law of State succession in respect of treaties,
and especially those rules pertaining to states which emerged from the decol-
onization process (Section V). The final section argues that the move away
from the international law ofsuccession regarding former colonies epitomizes
the illusion behind the entire law of succession according to which the birth
and death of States can be formally regulated by rules estranged from the iden-
tity struggles unfolding in succession crisis (Section VI).

* Professor of Public International Law, University of Manchester and Amsterdam

Center for International Law, University of Amsterdam. The author wishes to
thank Stephanie Caligara for her assistance as well as Etienne Henry for his useful
remarks on a previous draft. SSRN Author Page: http://ssrn.com/author=736816.

12 ChineseJournalofInternationalLaw (2013), 321-337

322 ChineselL (2013)

I. Introductory remarks: international law and time

1. The agenda of international law is generally forward-looking, its codification back-
ward-looking, and its application present looking.' Such a finding, however, does not
seem to be relevant to some important parts of the international law of State succession
in respect of treaties. Indeed, the international law of State succession in respect of
treaties has been constructed to vindicate the past and has been designed according
to past experiences without much consideration for its applicability beyond those
experiences. The most important chapter of the past on the basis of which the inter-
national law of state succession in respect of treaties has been moulded probably is
the process that led colonial entities to emancipate themselves from their colonial
administrators.2
2. This essay seeks to revisit specific contemporary consequences of the dominant
backward-looking orientation of the international law of State succession in respect
of treaties and its heavy decolonization heritage. It will particularly argue that such a
heritage not only led to the creation of a regime that exhausted itself before its entry
into force but also generated space of inconclusiveness that is very symptomatic of
the whole regime of State succession as it makes political struggle about identity the

1 Nobody puts this as elegantly as does Philip Allot: "Law is made in the past, to be
applied in the present, in order to make society take a particular form in the future.
Law carries a society's idea of its own future from the past into the future. Law
carries society's structure and systems from the past into the future. Law makes possible
society's possible futures." See Philip Allott, The True Function of Law in the Inter-
national Community, 5 Global Legal Studies Journal (1998), 391, 399.
2 This characteristic ofthe (historyofthe) international law ofState succession in respect
of treaties as is codified in the Vienna Convention on Succession of States in respect of
Treaties, 1946 UNTS 3 (1978) has been the object of abundant literature. The para-
digmatic role played by decolonization in the codification of International law of State
succession in respect of treaties, has been insightfully revisited by Matthew Craven in
his famous book The Decolonization of International Law. State Succession and the
Law ofTreaties (2010). For some classical workon the law ofsuccession, including the
question of succession in respect of treaties, see Daniel P. O'Connell, 1-2 State Suc-
cession in Municipal and International Law (1967); Daniel P. O'Connell, The Law of
State Succession (1956); Okon Udokang, Succession of New States to International
Treaties (1972); Amos Shartle Hershey, The Succession of States, 5 AJIL (1911), 285;
C. Wilfred Jenks, State Succession in Respect of Law Making Treaties, 29 BYBIL
(1952), 105; BrigitteStern, La Succession d'Etats, 262 Recueil des cours (2000), 9;
Lung-Fong Chen, State Succession Relating to Unequal Treaties (1974). Martti Kos-
kenniemi and Marja Lehto, La Succession d'Etats dans f'ex-URSS, en ce qui concerne
particuli&ement les relation avec Finlande, 38 Annuaire franeais de droit internation-
al (1993), 179.
 dAspremont, Decolonizationand the InternationalLaw ofSuccession 323

decisive criterion for the determination of the legal effects of the international law of
succession in respect of treaties.3
3. This essay starts by recalling the two conflicting objectives that were simultaneous-
ly pursued during the codification of the international lawof State succession in respect
of treaties (Section II). It then outlines how the codification process could hardly dis-
tance itself from the fresh reality (and the emotions) of decolonization, the latter even-
tually hovering over all the debates unfolding at that time (Section III). It goes on to
describe the rules specifically designed to address questions of succession in connection
with the decolonization process (Section IV). This essay subsequently recalls how the
implosion of the USSR and Yugoslavia brought about a repudiation of the internation-
al law of State succession in respect of treaties, and especially those rules pertaining to
States which emerged out of the decolonization process (Section V). The final section
argues that the move away from the international law of succession regarding former
colonies epitomizes the illusion behind the entire law of succession according to
which the birth and death of States can be formally regulated by rules estranged
from the identity struggles unfolding in successions crisis (Section VI). As the fore-
going makes clear, this essay does not approach the question of decolonization and suc-
cession from the vantage point of its sources. Nor does this essay seek to evaluate the
congruence of the law ofsuccession regarding former colonial entities with contempor-
ary practice. Firstly, such an exercise has been carried out elsewhere4 leading to the con-
clusion that the drafting the Vienna Convention on Succession of States in respect of
Treaties ('the 1978 Convention') had boiled down to an exercise of progressive devel-
opment of international law 5 whose outcome had not yet crystallized in positive rules.6
Secondly, the empiricism and the practice-reconstruction processes dictated by the
mainstream theory of custom inevitably come with arbitrariness, which makes such
exercises very suspicious.7 Thirdly, it is not certain that testing the law of succession
empirically in light of the practice is productive of the most original reflections
raised by decolonization and the law of succession. In this specific case, it seems, in

3 Albeit using a different route, the argument made here owes a lot to the convincing
demonstration made by Matthew Craven, above n.2.
4 Succession of States to multilateral treaties: studies prepared by the Secretariat-UN
Doc. A/CN.4/200 and Corr. 1and Add. 1 and 2 (F) (in ILC Ybk ( 1968), Vol. 11 (F)).
5 Daniel P.O'Connell, Reflections on the State Succession Convention, 39 Zeitschrift
fir auslandisches offentliches Recht und V6lkerrecht (1979), 725, 726.
6 See Ian Brownlie, Principles of Public International Law (5th edn. 1998), 650;
Matthew Craven, above n.2, 15; see also Res. No. 3/2008, Aspects of the law of suc-
cession, adopted at the 73rd Conference of the International LawAssociation, held in
Rio de Janeiro, 17-21 August, 2008 (http://www.ila-hq.org/download.cfm/
docid/69A1 482C-DE3D-4C50-966291460DAF047D (last visited 2 May 2013)).
7 See Martti Koskenniemi, The Normative Force of Habit: International Custom and
Social Theory, 1 Finnish YIL (1990) 77; Matthew Craven, above n.2, 202.
324 Chinese]IL (2013)

the view of the author of this essay, that mathematically and mechanically unearthing
State practice and constructing opiniojuris rather tend to obfuscate the foundational
questions of systemic architecture behind the law of succession in relation to decolon-
ization.8 The perspective of the following observations has accordingly been made
alien to the analytical framework of the sources of international law.

II. The political question: inheriting obligations made

in a time of dependence
4. When one reflects on the possible policies derived from the law of succession as
regards treaties regulating the situation of former colonies, the primary political ques-
tion that arises is whether a newly emancipated entity should inherit treaty obligations
contracted at a time it was denied an autonomous existence and was in a condition of
dependence. 9 It is well known that this fundamental political question had not been
addressed in the framework of the codification of the law of treaties and had been left
for a distinct codification exercise. o It is also well known that, having been removed
from the codification of the law of treaties, the question was debated during the codifi-
cation process of the law of succession in respect of treaties along the lines of two main
opposing theses. On the one hand, there were the reactionaries defending the stability
of the existing order and advocating a principle of continuity whereby newly inde-
pendent states would assume obligations carried over from the time of non-existence
or dependency. On the other hand, therewere the intrepid champions of rupture in the
name ofself-determination and permanent sovereignty. As the story goes, the emblem-
atic figure of the former was Daniel Patrick O'Connell," whilst Mohamed Bedjaoui l2
embodied the struggle for emancipation from a legal order inherited from the colonial
occupier. For O'Connell, decolonization was largely an ephemeral or transitional

8 For the same view, see Matthew Craven, above n.2, 3. For a critique of the theory of
customary international law, see Jean d'Aspremont, Formalism and the Sources of
International Law (2011), ch. 7, 148 ff.
9 Matthew Craven, above n.2, 4; H. Ruiz Fabri, Succession d'Etats, in: Denis Alland
and Stbphane Rials (eds.), Dictionnaire de la culture juridique (2003), 1441-1442.
10 This seems to imply that the techniques of adjustment prescribed by the law of treaties
were inappropriate to tackle this fundamental question. For some remarks on this
point, see Matthew Craven, above n.2, 55.
11 Daniel P. O'Connell, 1-2 State Succession, above n.2; Daniel P. O'Connell, The Law
of State Succession, above n.2.
12 See Mohammed Bedjaoui, Problimes r&cents de succession d'Etats dans les Etats
Nouveaux, 130 Recueil des cours (1970-II), 454; Mohammed Bedjaoui, Succession
ofStates and Governments: Succession in Respect of Matters other than Treaties, UN
Doc. A/CN4/216/Rev. 1, YB of the ILC (1963), Vol. II, 69.
 d'Aspremont, Decolonization andthe InternationalLaw ofSuccession 325

problem.' 3 For Bedjaoui, the law of succession had to be reshaped in accordance with
self-determination and sovereignty over natural resources. These two theses were
antagonistic, one constituting a denial of the other.
5. It is interesting to note that the international law of succession applying to the
situation of former colonies is certainly not the only area infused by such a defining
tension between stability and emancipation. Such a tension, for instance, pervades
contemporary debates about the extent of the obligations assumed by non-State
actors, and especially obligations of insurgents in armed conflicts.' 4 The same is
true of the responsibility incurred by States for the wrongful conduct of rebels who
have successfully seized power.' 5 Although the international law of State succession
in respect of treaties is not the only area where the tension between stability and eman-
cipation is the political question around which norms and practices articulate them-
selves, it certainly is among those where this tension spikes and has proved the most
determinative of the choices made regarding the orientation the law should take,
thereby raising questions worthy of scholarly attention.

III. Codification in time of emotions: decolonization before

the International Law Commission
6. When the question of international law of State succession in respect oftreaties came
on the agenda of the International Law Commission in 1968,16 decolonization,
nearing the first stage of its completion, was pervasive. It was redefining the commu-
nity of users (and subjects) of international law. It had also proved to be a ubiquitous
and compelling mind-set for all international lawyers. Unsurprisingly, decolonization
hovered over all the debates held at the International Law Commission. Indeed,
the architects of the law of international succession in respect of treaties clearly took

13 See the remarks by Matthew Craven, above n.2, 84.

14 Cedric Ryngaert, Non-State Actors and International Humanitarian Law, in: Jean
d'Aspremont (ed.), Participants in the International Legal System: Multiple Perspec-
tives on Non-State Actors in International Law (2011), 284. See also Jean d'Aspre-
mont and J6r6me de Hemptinne, Droit international humanitaire (2012), ch. 5.
15 See Articles on Responsibility of States for Internationally Wrongful Acts, art. 10. On
this particular provision, see Jean d'Aspremont, Rebellion and State Responsibility,
58 ICLQ (2009), 427.
16 See GA Res. 1686 (XVI) of 18 December 1961 and the First report ofthe Special Rap-
porteur, Sir Humphrey Waldock (20th session of the ILC (1968)), U.N. Doc.
A/CN.4/202 (F) (in YB of the ILC (1968), vol. II(F)).
17 For a study of the question of succession and decolonization before the start of the co-
dification process, see Maurice Flory, Decolonisation et succession d'Etats, 12
Annuaire frangais de droit international (1966), 577 (ibid., 593: Foreseeing acoopera-
tive approach to succession problems in the context of decolonization).
326 Chinese]IL (2013)

the position that the situation of former colonies called for a specific rule." In the
discussions about the fate that ought to be specifically reserved to former colonies, de-
colonization (and the mind-set accompanying it) tipped the political struggle within
the Commission in favour of Bedjaoui's above-mentioned claim for emancipation.' 9
The reactionaries' support for stability was eventually outpaced by the forces of the
current created by decolonization. 20 This is how the rules of the international law of
State succession in respect of treaties, that specifically concern former colonies, can
be seen as epitomizing the continuation of the quest for the universalization of
international law. 21 And like universalization pursued through decolonization, it is
the principle of self-determination that seemed to provide the most argumentative
22
power.
7. Whilst the rules of succession pertaining to former colonies turned into another
receptacle for the aspirations of international law's universalization, one mustn't forget
that embracing Bedjaoui's emancipative thesis was also a way for international lawyers
to offset the unease inherent in the complicity of international law with the coloniza-
tion project. In that sense, the law of succession and the preference given to the eman-
cipation of former colonies provided international law (and international lawyers)
with another possibility to be further (re)presented as the liberator, despite having

18 This is recalled in the final report of the ILA Committee on Aspects of the Law of Suc-
cession, adopted at the 2006 Toronto Conference, p. 11 (http://www.ila-hq.org/
download.cfi/docid/1194A5A8-04A8-42D1-AC862766EEA9A3DC (last visited
2 May 2013)).
19 It is not a coincidence that the first paragraph of the Preamble to the Vienna Conven-
tion (1978), above n.2, reads: "Considering the profound transformation of the inter-
national community brought about by the decolonization process."
20 Matthew Craven, above n.2, 83, wrote that the limited influence of O'Connell on the
codification process "must have been the source of some academic discomfort".
21 In the same way, see Matthew Craven, above n.2, 6.
22 Report ofthe ILC, 24th session, Doc. A/87 10/Rev. 1, inYB ILC (1972), Vol. 11, 245,
para.36. It is important to note, however, that self-determination proved to be an ar-
gumentative tool resorted to support each of the theses defended during the codifica-
tion process. For the Special Rapporteur Waldock, self-determination could warrant
the idea 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 justifies the exclusion
of any presumption of continuity (Sir Humphrey Waldock, 4th Report, p. 150,
paras.18-19). For Keith, on the other hand, self-determination could support the
idea that self-determination units enjoy a distinct identity from the territory admin-
istering it. The treaty action ofthe governments of that territory prior to independence
are accordingly important (Kenneth J. Keith, Succession to Bilateral Treaties by Se-
ceding States, 61 AJIL (1967), 521). The various these warranted by self-determin-
ation in connection to the law of succession are discussed in Matthew Craven,
above n.2, 146-147.
 daspremont, Decolonizationand the InternationalLaw ofSuccession 327

previously legitimized subjection. 23 The preparation of the international law ofsucces-

sion concerning former colonies also came as a conscience-soothing exercise-in the
sense that the rules prepared by the International Law Commission with respect to the
situations of former colonial entities can be construed as not only backward-looking
but also as the bellwether of the political aspirations (and anxieties) at the time of
their codification. 24 This is also why, irrespective of the usefulness or applicability
of the rules designed on that occasion-as discussed in the following section-this co-
dification enterprise will always stand as a valuable showcase where one can admire
some of the best conserved relics of the mind-set, aspirations and anxieties of that
epoch. The rules adopted by the International Law Commission in connection to de-
colonization thus reveal the complex features of the project of the universalization of
international law as it was perceived and (re-)constructed in the 1960s and 1970s.
8. This essay is, however, not the place to explore the historiographical virtues of the
codification achieved by the International Law Commission. 25 At this point, it suffices
to recall that the backward-looking spin given to the codification process was held as
the culprit of the general pathologies suffered byall of the law ofsuccession in respect of
treaties. The epochal proximity to decolonization and the defining role given to the
occurrence of the latter was deemed too close. 26 The rules pertaining to former
colonies were particularly criticized as being obsessed with decolonization without
anticipating future cases. 27 There are aspects of these criticisms which cannot be rea-
sonably contested. Indeed, as a result of the choices made in designing the provisions
of the 1978 Convention which deal with former colonies, prominence was given by
relevant provisions of the 1978 Convention to the "clean slate" thesis vindicated
by Bedjaoui for questions of succession with respect to former colonial entities.
This move undoubtedly frustrated the applicability of the Convention to future
crisis, as is explained in section 4 relating to the breakup of USSR and Yugoslavia.
9. Although the emotions generated by decolonization and the choices that followed
led to the design of inoperable mechanisms, these criticisms should not be exaggerated

23 In the same sense, see Matthew Craven, above n.2, 19: "international law[...] had
done as much to assist colonization in the late 19th century as to resist it."
24 This is one of the premises of Craven's impressive work on the law of decolonization;
see Matthew Craven, above n.2, 19.
25 See the chapters of Andreas Zimmermann and Santiago Villalpando in: Giovannie
Distefano and Gloria Gaggioli (eds.), Commentaire de la Convention de Vienne
sur la succession d'Etats en matiere de trait6s (forthcoming 2014).
26 Matthew Craven, above n.2, 4 and 15.
27 Ian Sinclair, Some Reflections on the Vienna Convention on Succession of States in
Respect of Treaties, in: Essays in Honour of Erik Castren (1978), 149, 181; Daniel
P. O'Connell, above n.5, 725. As Craven writes: "the framework of decolonization
has so distorted the project of codification that it was impossible to take anything at
face value" (Matthew Craven, above n.2, 15).
328 Chinese]IL (2013)

for two reasons. Firstly, the proximity of (the emotions related to) decolonization could
have generated the exact opposite move towards stability, away from the clean slate
thesis. Depending on the type of emotions and reactions generated by decolonization,
stability could have equally prevailed over emancipation from a theoretical point ofview.
Secondly, the above-mentioned criticisms should not be read as denying the inherent
element of backwardness in any codification process. Codification is inevitably a back-
ward-looking exercise. It is an exercise which boils down to reconstructing patterns of
the past with a view to having them impact the future. Codification is thus bound to
be pervaded by anxieties and emotions, which may probably no longer be felt at
the moment of the application of the codified rules. In that sense, there can be no
utterly un-emotional codification. The past inevitably resurfaces in the future applica-
tion of the rules concerned. Codification necessarily loads the future with the anxieties
of the past. That said, whilst there is no such a thing as a codification process completely
unsaddled with the emotions of the past, it remains possible to create a cushion allowing
a better domestication of such emotions. If one wanted to avoid the pitfalls of an emo-
tionally driven codification, it would have been necessary not to put the subject on the
agenda of the International Law Commission so quickly 2 8 and wait another decade.
Another move that could have prevented choices overly informed by the emotions of
a too recent past would have been to present the exercise of codification as a process
exclusively of a progressive development character. 29 For the sake of the argument
made here, it is not necessary to dwell on these questions. Moreover, it is not certain
that such an exercise would lead to any useful findings. This is why the next section
moves on to the actual rules that were eventually designed as a result of the policy
choices that have been recalled here.

IV. Former colonial entities under the 1978 Convention on State

Succession in Respect of Treaties
10. The basic principle pertaining to former colonies and reflecting the above-
mentioned emancipator thesis is enshrined in Article 16 of the 1978 Convention
which provides for the so-called principle of "clean slate" (tabula rasa)30 whereby

28 GA Res. 1686, above n.16.

29 In the view of this author, this is precisely where the distinction between progressive
development and codification is of value. In that sense, one can regret that the Inter-
national Law Commission does not always bother to distinguish formally between the
products falling in the former and those falling in the latter. For some critical remarks
on the practice of the International Law Commission in this respect, see Jean d'Aspre-
mont, Les travaux de la Commission du droit international relatifs aux actes unilater-
aux des Etats,109 Revue gen6rale de droit international public (2005), 163.
30 For a discussion of the historical origin of this doctrine, see Annie Gruber, Le droit
international de la succession d'Etats (1986), 75-80. See also the chapter of
E. Henry in: Giovanni Distefano and Gloria Gaggioli (eds.), above n.25.
 d'Aspremont, Decolonizationand the InternationalLaw ofSuccession 329

States emerging from decolonization are not automatically bound by a treaty in force
with respect to its territory at the date of the succession.3 1 Presented in 1970 by the
Special Rapporteur Waldock,3 2 it was discussed in 1972,33 finally adopted by
the International Law Commission in 1974 3 before making its way to Article 16 of
the Convention. Article 16 is especially meant to constitute a derogation of the prin-
ciple of continuity enshrined in Article 34 that regulates succession ofStates in cases of
separation of parts ofa State.35 It goes without saying that Article 16 is only meaningful
as long as there is a general principle of continuity. If not, no derogatory regime
allowing States originating in decolonization to decide the fate of the treaty previously
in force is necessary.
11. Emancipation was thus made the rule for former colonial entities whilst stability
was erected in the directing principles for other situations. The exact scope and effects
of this rule must be recalled. As is designed in Article 16, the clean slate rule remains
optional for former colonies in that it does not preclude the newly independent State
emerging from decolonization from opting for the continuous applications of treaties
in force and leaves it a free choice.36 Furthermore, Article 16 was made inapplicable to
boundaries and territorial regimes.37 There remains uncertainty as to the application

31 Article 16-Position in respect of the treaties of the predecessor State: A newly inde-
pendent 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 the succession of States the treaty was in force
in respect of the territory to which the succession of States relates.
32 Third Report of the Special Rapporteur sir Humphrey Waldock, Doc. A/CN.4/224
and Add. 1, YB ILC (1970), Vol. II, 34.
33 Report of the ILC, 24th session, Doc. A/87 10/Rev. 1, YB ILC (1972), Vol. II, 237,
271.
34 YB ILC (1974), Vol. I, 232.
35 Article 34: Succession of States in cases of separation of parts of a State:
(1) 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 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.
(2) Paragraph I does not apply if: (a) the States concerned otherwise agree; or (b) it appears from the treaty
or is otherwise established that the application of the treaty in respect of the successor State would be
incompatible with the object and purpose ofthe treaty or would radically change the conditions for its
operation.

36 Rosalie Schaffer, Succession to Treaties: South African Practice in the Light ofCurrent
Developments in International Law, 30 ICLQ (1982), 593, 597.
37 See Vienna Convention (1978), above n.2, arts. 11-12.
330 ChineselL (2013)

of the clean slate rule to treaties of a humanitarian character 3 8 but this question does
not need to be explored here. Nor, as indicated in the introduction, is it necessary to
delve into the customary status of Articles 16 and 34. With respect to the customary
character of both Articles 16 3 and 34,40 the literature and the case law seem very in-
conclusive. 4 ' For the sake of the argument here, it matters more to highlight that
Article 16 and the clean slate rule are expressly reserved by the 1978 Convention for
former colonial entities. 42 In this respect, it must be noted that a very peculiar
feature of Article 16, especially compared to the other provisions of the 1978
Convention, is that the determinationofthe beneficiariesdo not seem controversial.All
States, which acceded to independence as a result of exercising their right to

38 See Akbar Rasulov, Revisiting State Succession to Humanitarian Treaties: Is There a

Case for Automaticity?, 14(1) EJIL (2003), 141; Menno T. Kamminga, State Succes-
sion in Respect ofHuman Rights Treaties, 7(4) EJIL (1996), 469; See the Convention
on the Prevention and Punishment of the Crime of Genocide (1948), sep. op. Judge
Shabahudeen; Shabtai Rosenne, Automatic Treaty Succession, in Jan: Klabbers and
Ren6 Lefeber (eds.), Essays on the law of treaties: a collection of essays in honour of
Bert Vierdag (1998), 97. See also the contribution of S. Touz6 and L. Hennebel in:
Giovanni Distefano and Gloria Gaggioli (eds.), above n.25.
39 The customary character of art. 16 is defended by E. Henry, above n.30. He particu-
larly argues that the common practice of newly independent States to choose to stay
bound by some treaties cannot be construed as contradicting the customary character
of art. 16. See also G. Caggiano, The ILC Draft on the Succession of States in Respect
of Treaties: A Critical Appraisal, Italian YIL (1975), 69-74; Jonathan Mallamud,
Optional Succession to Treaties by Newly Independent States, 36 AJIL (1969),
782-783; Mustafa Kamil Yasseen, La Convention de Vienne sur la succession
d'Etats en matibre de traites, 24 Annuaire frangais de droit international (1978),
59-91. For authors having argued that art. 16 cannot be considered customary inter-
national law, see Brigitte Stern, above n.2, 148; Daniel P. O'Connell, above n.2, vol. 2,
25-26; Daniel P. O'Connell, above n.5, 732; Jane B. Stewart, The International Law
Commission, 26th Session: Draft Articles on the Succession of States in respect of
Treaties: The Pragmatic Development of International Law, 16 Harvard ILJ
(1975), 638, 639; Henry G. Schermers, Succession of States and International
Organizations, 6 NILR (1975), 103, 104-106.
40 For a rejection of the customary character of art. 34, see ILA, Rio de Janeiro Confer-
ence: Aspects of the Law of State Succession, Draft Final Report, (2008), 4; see also
Patrick Dumberry and Daniel Turp, La succession d'Etats en matibre de traites et le
cas de la secession, Revue belge de droit international (2003), 377.
41 In practice, many of these entities accepted some of the treaties entered into by former
colonial powers. See Daniel P. O'Connell. "Independence and Succession to Treat-
ies", 38 BYBIL (1962), 84; Kenneth J. Keith, Succession to Bilateral Treaties by
Seceding States, 61 AJIL (1967), 521; Jonathan Mallamud, above n.39, 783;
42 Article 2.1(0: "newly independent State" means a successor State the territory of
which immediately before the date of the succession of States was a dependent territory
for the international relations of which the predecessor State was responsible. See also
ILC Report, 26th session, Doc. A/96 10/Rev. 1, YB ILC (1974), Vol. II, Part I, 180.
 d'Aspremont, Decolonization andthe InternationalLaw ofSuccession 331

self-determination as defined by the UN Charter, are entitled to the freedom pre-

scribed by Article 16. It is well known that the explosive character of the notion
required such self-determination units to be formally defined. Subject to attempts
to stretch that notion beyond its original scope, there is not much debate left as to
who, in the framework of the UN Charter, is entitled to self-determination.4 4 The re-
jection, during the Vienna Conference, of paragraph 3 of draft Article 33 which would
have extended to analogous situations4 5 seems to underpin the fact that, at least from
an interpretative perspective based on the travauxpriparatoires,the notion of former
colony is to be understood very strictly.46
12. It is important to realize that being of limited applicability rationepersonae,and
because of the entry into force of the 1978 Convention at a time when decolonization
had been completed, Article 16 is a provision that has never been relied on. Most suc-
cessions falling within the ambit of Article 16 had already been settled by the time the
Convention entered into force in 1996. And there are only a few possible situations of
succession which could still qualify for Article 16, provided that the provision is actu-
ally applicable in that case. Indeed, it is not contested that the right to self-determin-
ation, at least in the UN context, has come close to exhausting itself. With the
exception of the non-self-governing territories still listed by the United Nations, 47
as well as a few other exceptions, 48 those self-determination units entitled to the
benefit of Article 16 have already exercised that right to self-determination and
settled the ensuing succession question. There are thus very few possible new States
to which Article 16 could still apply.
13. It is true that, just as the right to self-determination has been elevated into a
candidate for renewal and invoked beyond the decolonization process,49 Article 16
continues to have a huge potential for invocation beyond its original scope of
application. Indeed, it cannot be excluded that, as a result of numerous attempts to

43 See in particular UN GA Res. 1514 and 1541. See also the entities falling in the ambit
of chapter XII of the UN Charter.
44 For a development of this principle beyond the UN Charter, see Theodore Christakis,
Le droit a l'autod6termination en dehors des situations de d6colonisation (1999).
45 ILC Report, 26th session, Doc. A/9610/Rev. 1, YB ILC (1974), Vol. II, Part I, 270.
46 See the discussion on this point by Mustafa Kamil Yasseen, above n.39, 103.
47 UN, Non-self Governing Territories (http://www.un.org/en/decolonization/
nonselfgovterritories.shtml (last visited 2 May 2013)).
48 The entitlement of Palestine to self-determination is uncontested. See GA Res. 1514
(XV), 1541 (XV) and 2649 (XXV) as well as the International Court in its 2004 Ad-
visory Opinion, Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion of 9 July 2004 (http://www.icj-cij.org/
docket/index.php?pl=3&p2=4&k=5a&case=131&code=mwp&p3=4 (last visited
2 May 2013)).
49 See Theodore Christakis, above n. 4 4 .
332 ChineselL (2013)

give a second life to the principle ofself-determination outside the colonial context, the
scope of application of Article 16 will some day be extended to apply to situations
outside the decolonization process. 50 The recognized elasticity of the principle of
self-determination could actually provide support for such doctrinal moves. Yet, the
territorial and political changes which rocked Europe in the early 1990s, as well as
the events of the late 1990s and 2000s, came to demonstrate that Article 16 is probably
bound to be left stillborn. This is what is explained in the next section.

V. Repudiating the decolonization heritage in the 1990s:

story of an exhausted regime
14. It is argued here that the little hope there was to applyArticle 16 beyond the colonial
context was dashed by its unanimous rejection in the aftermath of the territorial and
political changes in Central and Eastern Europe in the early 1990s. Indeed, it is well
known that the above-mentioned choices available to newly independent States emer-
ging out of decolonization did not prove decisive in the policy choices that dictated the
succession controversies sparked by the breakup of the USSR and Yugoslavia. Both in
practice and in the literature there was unanimous agreement that the situation of the
new entities, which emerged from the breakup ofYugoslavia and the USSR, could not
be assimilated to that of former colonies under the 1978 Convention.5
15. From a formal vantage point, the oblivion ofArticle 16 in the USSR and Yugo-
slavian succession crises was certainly not surprising as the 1978 Convention was not
yet formally in force. Moreover, none of the entities reaching independence as a result
of the demise of these two States could formally claim to be self-determination units in
the traditional understanding advocated by the United Nations. Yet, the unanimous
rejection ofArticle 16 is nonetheless noteworthy because the substance ofArticle 16-
i.e. the clean slate rule enjoyed by former colonial entities-could have appealed to
some of these new entities. To put it differently, the freedom prescribed by Article
16 had the potential to constitute a useful framework for addressing crises of succession
in the 1990s. But it turned out that the applicability of the clean slate rule-and thus
the transposition of that regime to the political and territorial changes of the 1990s-
was not even discussed. Indeed, there were other reasons beyond the above-mentioned
formalistic objections to explain the disregard of the substantive solution prescribed by
Article 16. The explanation here is more holistic as it lies with the overarching state of
crisis of the conventional regime of 1978. It should be remembered that Article 16 as
well as all other provisions of the 1978 Convention pertaining to newly independent
States were in a great state of disrepute. 52 By virtue of the general disrepute of the whole

50 See these possible hypotheses discussed in the chapter of E. Henry, above n.30.
51 Brigitte Stern, above n.2, 223-224.
52 Matthew Craven, above n.2, 2.
 d'Aspremont, Decolonizationand the InternationalLaw ofSuccession 333

conventional regime of State succession as regards treaties, the fate of Article 16 was
sealed along with all the other provisions of the 1978 Convention. In that sense,
Article 16 was a victim of the general finding that the whole 1978 Convention was con-
sidered irrelevant by most observers when the question of succession arose in connection
with the territorial and political changes in Central and Eastern Europe in the mid-
1990s. 5 3 The disregard for the rules pertaining to former colonial entities was thus
very symptomatic of the crisis of the whole conventional regime put in place in 1978.
16. It is noteworthy that, whilst the law of succession seemed to have been left in
disarray by the Central and Eastern European political and territorial changes in the
1990s, the International Court of Justice did not make use of the opportunity
that arose in the Gablikovo-Nagymaroscase to clarify, restate or reinvigorate the inter-
national law of succession. 5 4 The irony, however, is that the repudiation of the para-
digmatic framework of the international law of succession in the 1990s was
concurrent with the entry into force of the 1978 Convention on 6 November 1998.
As a result, the latter may have partly obfuscated the former and perpetuated the
impression of the steadiness of the conventional regime designed in 1978, including
that of the rule pertaining to former colonies. The late 1990s and early 2000s
nonetheless confirmed the overall disengagement from the paradigm set by the
1978 Convention-and especially that on which Article 16 is based. Indeed, the
latter was not even invoked when the time came to solve the legal issues arising out
of the succession to treaties concluded by the United Nations administering the
territory of East-Timor in the process of exercising its right to self-determination. 5 5
Although Kosovo was not strictly speaking a self-determination unit, it is interesting

53 On the inapplicability of the Vienna Convention (1978) to the Yugoslavian crisis, see
Matthew Craven, above n.2, 12. See generally Vladimir-Djuro Degan, La Succession
d'Etats en matiere de Trait6s et les Etats nouveaux (issu de l'ex-Yougoslavie),
42 Annuaire franeais de droit international (1996), 206, 207. These cases were
deemed too different (Rein Maillerson, International Law, Rights and Politics
(1994), 64-67; on the USSR demise, see Martti Koskenniemi and Marja Lehto,
above n.2; M. N. Shaw, State Succession Revisited, 5 Finnish YIL (1994), 34;
Oscar Schachter, State Succession: The Once and Future Law, 33 Va JIL (1993),
253; Marco A. Martins, An Alternative Approach to the International Law of State
Succession, 44 Syracuse LR (1993), 1019; David 0. Lloyd, Succession, Secession,
and State Membership in the United Nations, 26 NYU JILP (1994), 761; Michael
P. Scharf, Musical Chairs: The Dissolution of States and Membership m the
United Nations, 28 Cornell ILJ (1995), 29.).
54 ICJ, Gabbikovo-Nagymaros, Judgment of 25 September 1997, p. 71, para. 123. On
this aspect of the case and the limited role played by the law ofsuccession, see Jan Klab-
bers, Case Analysis: Cat on a Hot Tin Roof: The World Court, State Succession, and
the Gabbikovo-Nagymaros Case, 11 Leiden JIL (1998), 345.
55 See Eric de Brabandere, Post-Conflict Administrations in International Law: Inter-
national Territorial Administration, Transitional Authority (2009). The question of
succession with respect to international organizations' administration of territories
334 ChineselL (2013)

to note that a similar disengagement with the conventional regime was witnessed when
it declared independence.5 6 Lastly, it is relevant to mention that, referring to the overall
conventional regime designed by the International Law Commission, the ILA Com-
mittee on Aspects of the Law of Succession, completing its work in 2008, stated that
"[t]he classification of the different types of state succession adopted by [the 1978 and
1983] Conventions does not fully correspond with international practice" without
qualifying that statement with regard to the situation of former colonies.5 7

VI. Coming to terms with the paradigmatic inconclusiveness

of the international law of succession: the move to transparency
17. The foregoing has shown that, although decolonization bore upon the mind-set of
the codification process and proved determinative of some of the central paradigms of
the conventional regime of succession as regards treaties, the rules designed with
respect to the situation of former colonial entities came with an uncertain customary
status, were never formally applied and were not even invoked in the context of the
demise of the USSR and Yugoslavia or of the independence of East Timor and
Kosovo. The story of Article 16 of the 1978 Convention (whose main tenets have
been outlined in Section IV) is thus a story of a regime devised at a very emotional
time (as explained in Section III) in order to tackle a heavy political question ofheritage
from the era ofdependency (as argued in Section II) but which, much like the rest of the
Convention, was a stillborn mechanism (as demonstrated in Section V). This rather
cynical-but not unheard of 58-account should certainly not be interpreted as
meaning that the codification process pertaining to the law of succession with
respect of treaties must be seen as a vain exercise. As was said above, the provision of
the 1978 Convention, and Article 16 in particular, will always remain a unique show-
case for the anxieties of a bygone era.5 9
18. There are, however, more structural lessons to be learnt from the reminders
made in the previous paragraphs. Although this brief account of the-short-life of
the conventional rules designed for situations of formal colonial entities has been
limited to a specific question of the international law of succession as regards treaties,
the story that has been told in the previous sections is very symptomatic of the dynam-
ics of the whole conventional succession regime. As explained above, the international

has already been touched on in the South West Africa Case (ICJ Rep, 1950, 128,
136).
56 See the Declaration of Independence which states: "We hereby undertake the inter-
national obligations of Kosovo, including those concluded on our behalf by [...]
UNMIK." 47 ILM 467 (2008), para.9.
57 See Res. No. 3/2008, above n.6.
58 See the work of Matthew Craven, above n.2.
59 See above Section III.
 dAspremont, Decolonizationand the InternationalLaw ofSuccession 335

law of succession was, from its inception, meant to be a receptacle of the fundamental
tensions between emancipation and stability. As recalled above, emancipation was
made the rule for former colonial entities whilst stability was erected in the directing
principles for all other situations.6 0 It has also been said that, even though the decol-
onization heritage had structurally impacted the mind-set of codifying actors in the
1970s and decisively informed the paradigms developed on that occasion, it no
longer proved germane in the 1990s. This means that the emotions of the 1970s
did not resurface in the Central and Eastern European crisis of the 1990s, and the inter-
national society moved away from the heritage of decolonization in terms of succes-
sion. As a result, the succession crises in the 1990s in Central and Eastern Europe
were solved outside the framework inherited from decolonization.
19. It is submitted in these concluding remarks that the repudiation of the decolon-
ization heritage described in Section V is not only the outcome of a regime that has
exhausted itself. It is argued that it is also the result of the fundamental paradigmatic
inconclusiveness at the heart of the whole international law of succession. Indeed, it is
not only that the weighting of the emancipation and stability policies operated in the
1978 Convention was deemed inappropriate and that decolonization had come to an
end before the Convention entered into force. It is also that the very paradigms on the
basis of which the whole regime of succession in respect of treaties had been cast were
expressly discarded in the 1990s. Questions of succession were accordingly not
answered along the lines of the paradigms developed by the 1978 Convention.
Theywere simply addressed according to a different vocabulary, and, more fundamen-
tally, a different paradigmatic framework. In that sense, less than a repudiation of an
exhausted regime, it is a paradigmatic crisis of the law of succession, which is revealed
by the move away from emancipation proposed by Article 16 during the succession
crises of the 1990s and early 2000s. This paradigmatic revolution can even be under-
stood as a rebellion against the conceptual bricks with which the international law of
succession had been thought and conceptualized, i.e. in a way alien to the politics of
identity. Said differently, the repudiation of the whole convention regime of 1978
as is epitomized by the fate ofArticle 16 can be construed as a move away from formal-
ization imposed by the 1978 convention regime. The move observed in the 1990s is a
move towards transparency in that it comes with the realization that the succession of
States cannot be formally regulated by law through notions of newly independent
States,6 1 newly independent States formed from two or more territories,62 union

60 See above Section IV.

61 See Vienna Convention (1978), above n.2, arts. 2 and 16.
62 Ibid., Part III, section 5.
336 ChineselL (2013)

and separation of States,6 3 continuation of States after secession of parts of their

territory6 etc.
20. This finding is of course not ground-breaking. It has long been recognized that
the political question of State identity inevitably precedes the formal determination of
the consequences of identity changes. 65 Many would agree that there simply is no pos-
sibility of locating the notion of continuity or succession in advance.'6 The reason for
recalling the foregoing is that it leads us to a final-and more general-observation
regarding the very idea (and the construction) of "subject" in international law. The
shortcomings of Article 16 recalled above and the enfeeblement of the succession
regime are both providing additional underpinnings to the claim that the international
society is not ready for an aprioriformal determination of the death of the subjects of
the international legal order. As I have argued elsewhere, subject-determination itself is
not formally regulated by law but is left to the contingencies of the international
society.67 The story of the international law of succession in connection to decoloniza-
tion is a reminder that this finding is not limited to the birth of subjects but also holds
for their disappearance. If subject-determination is itself a matter of politics, one
should not be astonished that the identity crisis arising in succession processes is
resolved along the same lines. At the time of death, as at the time of birth, international
law reaches the same ocean of inconclusiveness where only political struggle as well as
questions of legitimacy and recognition are determinative.68
21. Provided that the repudiation of the rules of succession in respect of treaties and
especially that pertaining to former colonies can be read as a call for transparency, the
question international lawyers are left with is whether they want to continue to pursue
their quest for a formal determination of the birth and death of the subjects of inter-
national law. Phrased differently, the question is whether international lawyers want to

63 See ibid., Part IV.

64 See ibid., art. 35.
65 Matthew Craven, The Problem of State Succession and the Identity of States under
International Law, 9 EJIL (1998), 142, esp. 152-162 (ibid., 152: in each case, the
defining consideration is whether or not the state concerned retains its legal identity);
Martti Koskenniemi, Report of the Director of Studies of the English-speaking
Section of the Centre, in: Martti Koskenniemi and Pierre Eisemann, State Succession:
Codification Tested Against the Facts (1997), 122.
66 Martti Koskenniemi, above n.65, 124.
67 Jean d'Aspremont, Non-State Actors in International Law: Oscillating between Con-
cepts and Dynamics, in: Jean d'Aspremont (ed.), above n. 14, 1; Martti Koskenniemi,
above n.65, 122.
68 One could say that the Law of State Responsibility was more successful in keeping
questions of legitimacy and recognition at bay. For some observations in this
respect, see Jean d'Aspremont, above n.15. See also the remarks of Alan T. Nissel,
The ILC Articles on State Responsibility Between Self-Help and Solidarity, 38
NYU JILP (2006), 355.
 dAspremont, Decolonizationand the InternationalLaw ofSuccession 337

live with the illusion that birth and death in the international society are formally
apprehended and regulated by international law. In answering that question, inter-
national lawyers should, however, remember that transparency has a price. Illusions,
like myths, serve useful-mostly societal but also systemic-purposes6 9 and should
accordingly not be discarded outright. If Article 16 of the 1978 Vienna Convention
on State Succession in Respect ofTreaties is a unique and precious showcase of the anx-
ieties and hope of the epoch of its codification, it is also the bearer of a myth whose
added value needs to be carefully weighed against that of the move to transparency
observed over the last two decades.

69 For some general considerations, see Jean d'Aspremont, Wording in International

Law, 25 Leiden JIL (2012), 575; for specific remarks on myths in the context of the
use offorce, see Jean d'Aspremont, Mapping the Concepts Behind the Contemporary
Liberalization of the Use of Force in International Law, 31 U Penn JIL (2010), 101.