Is a New State Responsible for Obligations Arising from Internationally Wrongful Acts Committed Before its Independence in the Context of Secession?

Canadian Yearbook of International Law, Vol. 43, pp. 419-453, 2005

38 Pages Posted: 14 Dec 2008

See all articles by Patrick Dumberry

Patrick Dumberry

University of Ottawa - Civil Law Section

Date Written: October 29, 2008

Abstract

This article addresses an aspect of one of the most controversial issues in the field of state succession: whether there is a succession of states to obligations arising from an internationally wrongful act committed by the predecessor state against a third state before the "date of succession." More specifically, the article addresses the issue in the context of secession: who from the continuing state or the new state (the "secessionist" successor state) should he held responsible for the obligation to repair towards the injured third state after the date of succession. There are basically two possible answers to this question: the obligation remains that of the continuing state or the obligation is transferred to the new state.

This article will first critically examine the arguments advanced by scholars for whom the successor state does not take over the obligations arising from internationally wrongful acts committed by the predecessor state before the date of succession. We will offer a less dogmatic approach to the issue whereby the solution essentially depends on different factors and circumstances as well as the types of succession of states involved. This article will then examine state practice and case law in the context of secession, which shows that the continuing state usually continues its previous responsibility for internationally wrongful acts committed before the date of succession, notwithstanding the transformation affecting its territory (see, the position taken by Austria and the Allies in the context of the break-up of the Austria-Hungary Dual Monarchy; Polish and German court decisions in the context of the secession of Poland; the position adopted by East German after the Second World War; several examples in the context of the break-up of the U.S.S.R.; claims arising in the context of the secession of Belgium).

A more controversial issue is whether this principle of non-succession should always apply in the context of secession and whether there should not be some circumstances that would instead call for the new state to be responsible for internationally wrongful acts committed before the date of succession. This article is an attempt to systematically establish under which specific circumstances secessionist states take over the obligation to repair towards injured third states. The author identifies five such circumstances.

Keywords: state succession, secession, state reponsibility

Suggested Citation

Dumberry, Patrick, Is a New State Responsible for Obligations Arising from Internationally Wrongful Acts Committed Before its Independence in the Context of Secession? (October 29, 2008). Canadian Yearbook of International Law, Vol. 43, pp. 419-453, 2005. Available at SSRN: https://ssrn.com/abstract=1292110

Patrick Dumberry (Contact Author)

University of Ottawa - Civil Law Section ( email )

57 Louis Pasteur Dr
Ottawa
Canada

HOME PAGE: http://www.droitcivil.uottawa.ca/index.php?option=com_contact&task=view&contact_id=148&Itemid=118

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