The Use of the Concept of Unjust Enrichment to Resolve Issues of State Succession to International Responsibility
Revue belge de droit international, Vol. 39, No. 2, pp. 507/528, 2006
12 Pages Posted: 19 Dec 2008
Date Written: October 29, 2008
This paper 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". The aim of this paper is not to provide a comprehensive analysis of the complex and controversial question of State succession to international responsibility. The present article examines the principle of unjust enrichment and its possible use to resolve issues of State succession to international responsibility. To the best of the author's knowledge, this question has not been comprehensively addressed in doctrine.
This paper 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 submit an alternative approach whereby the solution to the question of whether or not the successor State takes over such obligations essentially depends on different factors and circumstances as well as the different types of succession of States involved. The present paper will examine in detail one such relevant factor: whether or not the successor State has unjustly enriched itself as a result of an internationally wrongful act committed before the date of succession. We will examine the content of the general principle of law of unjust enrichment and its use to resolve issues of State succession. This paper will argue that the concept of unjust enrichment is a useful tool to determine whether or not a new State succeeds to any State responsibility of the predecessor State. As a matter of principle, a State (the predecessor or the successor State) which has unjustly enriched itself as a result of an internationally wrongful act committed before the date of succession should provide reparation to the injured third State after the date of succession. Finally, we will examine the concrete application of this principle for different types of succession of States. The present author submits that the concrete application of the concept of unjust enrichment to resolve issues of State succession to international responsibility leads to fair and equitable results.
Keywords: State succession, international responsibility, unjust enrichment
Suggested Citation: Suggested Citation