Secession, State Succession and International Arbitration

36 Pages Posted: 22 Aug 2013

See all articles by Justin A. Fraterman

Justin A. Fraterman

Paul, Weiss Rifkind, Wharton & Garrison LLP

Date Written: March 7, 2013

Abstract

With the 2011 secession of South Sudan from Sudan and the International Court of Justice’s (ICJ) ruling in 2010 on Kosovo’s unilateral declaration of independence, the issue of state secession, and, by extension, the issue of state succession, has recently been much in the news. In the face of state secession, the multitude of legal issues relating to state succession come to the forefront rather rapidly and insistently. Questions relating to the continued effect (or lack thereof) of treaties, membership in international organizations, the allocation of state assets, natural resources and public debt, the status of a pre-existing commercial contracts and other acquired rights, and the distribution of military and other strategic assets must be answered by both the new state and the international community. The issues that typically plague successor states are, by their very nature, heavily politicized and not easily resolved through traditional, court-oriented methods of dispute resolution. Even the types of private disputes normally subject to traditional court proceedings under ordinary circumstances may not be susceptible to resolution by domestic courts in a post-succession environment characterized by complexity and political fluidity. Furthermore, certain succession-related problems that are of a purely intergovernmental character (such as boundary disputes) are, failing the reaching of an agreement via political channels, likely only resolvable through state-to-state arbitration. As a result, international arbitration, while not a panacea, provides an ideal vehicle for the resolution of a wide-range of post-succession disputes.

In order to better understand the role that arbitration can play as a tool for the resolution of post-succession controversies, this article examines some of the issues and questions that typically pertain to the process of secession and the establishment of successor states. The first section will first provide an overview of several of the underlying concepts of state succession, as well as a brief tour d’horizon of the current state of general international practice on state succession, referring, as much as possible, to the rulings of arbitral tribunals over the years on these issues. The article will then move on to examine several aspects of arbitration as it relates to succession, including vital jurisdictional issues such as the arbitrability of succession issues, the ability of newly-formed states to succeed to arbitration agreements, and questions of jurisdiction rationae temporis. The next section will address several substantive issues including succession to investment protection obligations and succession to legal responsibility for pre-succession actions. Finally, the article will conclude by examining both a prospective case of succession – Kosovo – and a recently occurred case of succession – South Sudan – through the lens of international arbitration.

Keywords: secession, succession, arbitration, international arbitration, Abyei, state responsability, arbitrability, international tribunals, South Sudan, Kosovo

JEL Classification: K33

Suggested Citation

Fraterman, Justin A., Secession, State Succession and International Arbitration (March 7, 2013). Available at SSRN: https://ssrn.com/abstract=2313401 or http://dx.doi.org/10.2139/ssrn.2313401

Justin A. Fraterman (Contact Author)

Paul, Weiss Rifkind, Wharton & Garrison LLP ( email )

New York, NY 10019
United States
2123733121 (Phone)

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
686
Abstract Views
2,887
Rank
69,950
PlumX Metrics