This article is a summary of part of the author’s doctoral dissertation, “State Succession to Rights and Obligations Arising from the Commission of Internationally Wrongful Acts in International Law,” which was completed in February 2006 at the Graduate Institute for International Studies, Geneva, under the supervision of Marcelo G. Kohen. It will be published as State Succession to International Responsibility (The Hague: Brill Publishing, 2007). This article reflects facts that are current as of December 2005.

¹ State succession is defined as “the replacement of one State by another in the responsibility for the international relations of territory.” Article 2(1 )b) of the Vienna Convention on Succession of States in Respect of Treaties, UN Doc. ST/ LEG/SER.E/10 (22 August 1978), 17 I.L.M. 1488 (entered into force on 6 November 1996) [Vienna Convention].

² Ibid., Article 2 ( 1 ) (e), which defines the “date of the succession of States” as “the date upon which the successor State replaced the predecessor State in the responsibility for the international relations of the territory to which the succession of States relates.”

³ This question has been the object of a few comprehensive studies in doctrine: Stern, B., “Responsabilité internationale et succession d’Etats,” in Boisson de Chazournes, L. and Gowlland-Debbas, V., eds., The International Legal System in Quest of Equity and Universality: Liber amicorum Georges Abi-Saab (The Hague: Martinus Nijhoff, 2001), 327 Google Scholar; SirHurst, C. J. B., “State Succession in Matters of Tort” (1924) 5 Br. Y.B. Int’l L. 163 Google Scholar; Monnier, J. P., “La succession d’Etats en matière de responsabilité internationale” (1962) 8 A.F.D.I. 65 Google Scholar; Czaplinski, W., “State Succession and State Responsibility” (1990) 28 Can. Y.B. Int’l L. 339 Google Scholar; Volkovitsch, M. J., “Righting Wrongs: Toward a New Theory of State Succession to Responsibility for International Delicts” (1992) 92(8) Colum. L. Rev. 2162 CrossRefGoogle Scholar; M. Peterschmitt, “La succession d’Etats et la responsabilité internationale pour fait illicite” (LL.M dissertation, Graduate Institute for International Studies, Geneva, 2001, unpublished); and H.M. Atlam, “Succession d’Etats et continuité en matière de responsabilité internationale” (doctoral dissertation, Université de droit, d’économie et des sciences d’Aix-Marseille, France, 1986, unpublished).

⁴ “Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts Adopted by the International Law Commission at Its Fifty-Third Session (2001 ),” November 2001, Report ofthe ILC on the Work of Its Fifty-Third Session, Official Records of the General Assembly, 56lh Session, Supplement No. 10, Doc. A/56/10 (2001), ch. IV.E.2, at 119, para. 3.

⁵ The author has conducted such analysis. Dumberry, P., “State Succession to Rights and Obligations Arising from the Commission of Internationally Wrongful Acts in International Law“ (doctoral dissertation, Graduate Institute for International Studies, Geneva, 2006)Google Scholar. See also Dumberry, P., State Succession to International Responsibility (The Hague: Brill Publishing, 2007).CrossRefGoogle Scholar

⁶ There is some controversy as to the proper terminology that should be used to make reference to this phenomenon and whether the term “separation” should not be used instead. The term “separation” is used in both the Vienna Convention, supra note 1 at Article 34, and the Vienna Convention on Succession of States in Respect of State Properties, Archives and Debts, 8 April 1983, UN Doc. A/CONF. 117/14, 22 I.L.M. 298 at Article 17. This is also the case of the Draft Articles on Nationality of Natural Persons in Relation to the Succession of States, adopted by the International Law Commission (ILC) on second reading in 1999, ILC Report, UN Doc. A/54/10 (1999), ch. IV at paras. 44 and 45, in Yearbook of the International Law Commission 1997, vol. 2 at 13. In doctrine, the two terms are sometimes used as distinct concepts describing different situations. Thus, for some writers, the term “secession” should be used to describe instances where the removal of one part of the territory is made without the consent of the predecessor state, while cases of “separation” should refer instead to instances where such removal is accepted by the predecessor state. These writers make such distinction: Kohen, M. G., “Le problème des frontières en cas de dissolution et de séparation d’Etats: quelles alternatives?” in Corten, O., Delcourt, B., Klein, P., and Levrat, N., eds., Démembrement d’Etats et délimitations territoriales: L’uti possidetis en question(s) (Brussels: Bruylant, 1999), 368 Google Scholar; Kohen, M. G., “Introduction,” in Kohen, M. G., ed., Secession: International Law Perspectives (Cambridge: Cambridge University Press, 2006) at 2 3;CrossRefGoogle Scholar Crawford, J., The Creation of States in International Law (Oxford: Clarendon Press, 1979) at 247 Google Scholar; and Crawford, J., “State Practice and International Law in Relation to Secession” (1998) Br. Y.B. Int’l L. 85.Google Scholar Similarly, O’Connell, D. P., State Succession in Municipal Law and International Law, vol. 2 (Cambridge: Cambridge University Press, 1967) at 88 Google Scholar, speaks of “revolutionary secession“ and “evolutionary secession.” Other writers use the term “separation” in the context of “unitary” state, while “secession” is used for cases involving “federal” states. For instance, see Brossard, J. and Turp, D., L’accession à la souveraineté et le cas du Québec, 2nd edition (Montreal: Presse de l’Université de Montréal, 1995) at 94 Google Scholar; and Turp, D., Le droit de choisir: Essais sur le droit du Québec à disposer de lui-même / The Right to Choose: Essays on Quebec’s Right of Self-Determination (Montreal: Editions Thémis, 2001) at 22.Google Scholar

⁷ Cases of newly independent states are similar to secession insofar as they both involve the creation of a new state while the predecessor state continues to exist. However, cases of newly independent states arise in the context of decolonization where the territory of a colony is not considered as part of the territory of the colonial state administrating it (Declaration of Principles of International Law Concerning Friendly Relations and Co-Operation among States in Accordance with the Charter of the United Nations, adopted by General Assembly Res. 2625 (XXV) (24 October 1970). In this sense, a newly independent state is a new state, which, however, cannot be said to have “seceded“ from the colonial power to the extent that its territory was never formally part of it. The most recent example of a newly independent state is East Timor in 2002.

⁸ This comment will not address the other question of the right for the successor state to claim reparation as a consequence of internationally wrongful acts committed by a third state against the predecessor state before the date of succession. This question is fully examined by Dumberry, supra note 5 at 357–480.

⁹ This question is examined in detail by the author Dumberry, supra note 5 at 175–202.

¹⁰ For a long list of scholars who have adopted this position, see ibid. at 58–60.

¹¹ R.E. Brown Case (United States v. Great Britain), Award of 23 November 1923, 6 R.I.A.A. at 129 (British-United States Claims Commission).

¹² EH. Redward and Others Case (Great Britain v. United States), Award of 10 November 1925, 6 R.I.A.A. 157 (British-United States Claims Commission) [Hawaiian Claims].

¹³ Monnier, supra note 3 at 89; Cavaglieri, A., “Effets juridiques des changements de souveraineté territoriale” (1931–1) Annuaire I.D.I. 190 Google Scholar; Quoc Dinh, N., Daillier, P., and Pellet, A., Droit international public, 6th edition (Paris: librairie Générale de Droit et de Jurisprudence, 1999) at 550 Google Scholar; Dupuy, P.-M., Droit international public, 4th edition (Paris: Dalloz, 1998) at 54 Google Scholar; Rousseau, C., Droit international public, vol. 3 (Paris: Sirey, 1977) at 505 Google Scholar; and de Visscher, C., Théories et réalités en droit international public (Paris: Editions Pedone, 1953) at 210.Google Scholar

¹⁴ This solution was adopted by the tribunal in the Hawaiian Claims case, supra note 12 at 158:“ [T]he legal unit which did the wrong no longer exists, and legal liability for the wrong has been extinguished with it.”

¹⁵ According to the ILC Special Rapporteur James Crawford (First Report on State Responsibility (Addendum no. 4), 26 May 1998, UN Doc. A/CN.4/490/Add.4 (1998), at para. 110), Article t of the ILC’s Articles on Responsibility of States for Internationally Wrongful Acts (“Every internationally wrongful act of a State entails the international responsibility of that State”) “affirms the basic principle that each State is responsible for its own wrongful conduct.”

¹⁶ The question is (rightly) identified as such by, inter alia, Verhoeven, J., Droit international public. (Brussels: Larcier, 2000) at 189 Google Scholar; and Stern, supra note 3 at 338.

¹⁷ This theory is supported by these writers: Huber, M., Die Staatensuccession: völkerrechtliche und staatsrechtliche Praxis im XIX. Jahrhundert (Leipzig: Duncker and Humblot, 1898) at 65 and 95Google Scholar; Udina, M., “La succession des Etats quant aux obligations internationales autres que les dettes publiques” (1933–II) 44 Ree. des Cours 767 Google Scholar; Cavaglieri, A., “Règles générales du droit de la paix” (1929T) 26 Ree. des Cours 374 Google Scholar; Malanczuk, P., Akehurst’s Modem Introduction to International Law, 7th edition (London: Routledge, 1997) at 169 Google Scholar; and Brownlie, I., Principles of Public International Law, 6th edition (Oxford: Clarendon Press, 2003) at 632.Google Scholar

¹⁸ Moyle, J. B., The Institutes of Justinian Translated into English, 3rd edition (Oxford: Clarendon Press, 1913)Google Scholar, at Book IV, Title 12. A good example is the work of Lauterpacht, H., Private Law Sources and Analogies of International Law (London: Longmans, 1927) at 131–32 and 283.Google Scholar

¹⁹ Stern, B., “La succession d’Etats” (1996) 262 Ree. des Cours 37 Google Scholar; and Volkovitsch, supra note 3 at 2196.

²⁰ Gruber, A., Le droit international de la succession d’Etats (Paris: Publications de la faculté de droit de l’Université René Descartes (Paris V), Editions Bruylant, 1986) at 30 and 35.Google Scholar

²¹ Schoenborn, W., “La nature juridique du territoire” (1929–V) 30 Ree. des Cours 119 Google Scholar; and Delbez, L., “Du territoire dans ses rapports avec l’Etat” (1932) R.G.D.I.P. at 719.Google Scholar

²² Stern, supra note 19 at 38; Suy, E., “Réflexions sur la distinction entre la souveraineté et la compétence territoriale,” in Marcie, R., Mosler, H., Suy, E., and Zemanek, , Internationale Festschrift für Alfred Verdross (Munich: Wilhem Fink Verlag, 1971) at 494.Google Scholar

²³ This is stated by the French-Greek arbitral tribunal in the Lighthouse Arbitration case (Sentence arbitrale en date des 24/27 juillet 1956 rendue par le Tribunal d’arbitrage constitué en vertu du Compromis signé à Paris le 15 juillet 1932 entre la France et la Grèce), Award of 24/27 July 1956, 12 R.I.A.A. 155 at 199 [Lighthouse Arbitration case]. See also Volkovitsch, supra note 3 at 2196. This is, indeed, the situation prevailing under English law. Dias, R. W. M. and Markesinis, B. S., Tort Law (Oxford: Clarendon Press, 1984) at 416.Google Scholar

²⁴ Brownlie, I., State. Responsibility, Part I (Oxford: Clarendon Press, 1983) at 39 Google Scholar; and Dupuy, supra note 13 at 437.

²⁵ First Report on State Responsibility (Addendum no. 4), James Crawford, Special Rapporteur, 26 May 199S, UN Doc. A/CN.4/490/Add.4 (1998) at para. 122.

²⁶ Udina, supra note 17 at 767.

²⁷ Stern, supra note 3 at 335.

²⁸ Mention should be made of the following writers who have criticized this doctrine: Feilchenfeld, E. H., Public Debts and State Succession (New York: Macmillan, 1931) at 689 and 728Google Scholar; Cheney Hyde, C., International Law Chiefly as Interpreted and Applied by the United States, vol. 1, 2nd edition (Boston: Little, Brown and Company, 1945) at 437–38Google Scholar; and Verzijl, J. H. W., International Law in Historical Perspective, vol. 7 (Leiden: A.W. Sijthoff, 1974) at 219–20.Google Scholar

²⁹ Lighthouse Arbitration case, supra noie 23, dealing with Claim no. 4.

³⁹ Ibid. at 198.

³¹ Mention should be made here of the work of Volkovitsch, supra note 3 at 2198 and 2172–73; Stern, supra note 3 at 336, 338, and 355; and Peterschmitt, supra note 3 at 72–73.

³² This is the conclusion reached by the tribunal in the Lighthouse Arbitration case, supra note 23 at 197.

³³ See also O’Connell, supra note 6, vol. 1 at 486; and Atlam, supra note 3 at 15 and 235–36

³⁴ In fact, the present author (Dumberry, supra note 5 at 495 et seq) did not find a single case of recent state practice where the successor state refused to be held responsible for pre-succession obligations. This is discussed in Oumberry, P., “The Controversial Issue of State Succession to International Responsibility Revisited in Light of Recent State Practice” (2006) 49 German Y.B. Int’l L. Google Scholar (forthcoming).

³⁵ This is also the conclusion reached by O’Connell, D. P., “Recent Problems of State Succession in Relation to New States” (1970–II) 130 Ree. des Cours 164.Google Scholar

³⁶ The present author (Dumberry, supra note 5 at 244–344) has identified several specific circumstances under which state practice and international and municipal case law (as well as doctrine) support the application of the principle of succession or, on the contrary, that of non-succession. Some of these circumstances will be examined later in this comment in the context of secession.

³⁷ The present author (Dumberry, supra note 5 at 82-246) has conducted a comprehensive analysis of state practice based on the different types of succession of states (that is, secession, the creation of “newly independent states,” dissolution of states, unification and integration of states, and cession and transfer of territory).

³⁸ Stern, supra note 3 at 335-36 (“En vertu des principes très clairs gouvernant l’imputation de l’acte illicite à un Etat... on peut affirmer que l’Etat continuateur continue bien entendu à être responsable des actes qu’il a commis, même s’il subit certaines transformations”). See also Czaplinski, supra note 3 at 357; Gould, W. L., An Introduction to International Law (New York: Harpers and Brothers, 1957) at 428 Google Scholar; Monnier, supra note 3 at 67; Marek, K., Identity and Continuity of States in Public International Law (Geneva: Librairie Droz, 1968) at 11 Google Scholar; Volkovitsch, supra note 3 at 2200; Atlam, supra note 3 at 258; Peterschmitt, supra note 3 at 54; Rousseau, Ch., “Jurisprudence française en matière de droit international public” (1976) 80 R.G.D.I.P. 969 Google Scholar; SirJenning, R. and SirWatts, A., Oppenheim’s International Law, vol. 1, 9th edition (London: Longman, 1996) at 224 Google Scholar; and Kelsen, H., “Théorie générale du droit international public. Problèmes choisis” (1932–lV) 42 Ree. des Cours 327 at 333–34.Google Scholar

³⁹ The majority of the scholars are of the opinion that the case of Austria-Hungary is one of state dissolution. An overview of the legal arguments advanced by both sides in doctrine is found in O. Lehner, “The Identity of Austria 1918/19 as a Problem of State Succession” (1992) 44 Österreichische Zeitschrift für öffentliches Recht und Völkerrecht 63 at 81.

⁴⁰ Military Pensions (Austria) Case, 7 May 1919, Case no. 126, (1919) 1 Sammlung der Erkenntniss des österreichischen Verfassungsgerichtshofes, no. 9 at 17 ( 1919–22) Ann. Dig. I.L.C. 66 (Austrian Constitutional Court); and Austrian Empire (Succession) Case, 11 March 1919, Case no. 18, in Ibid., no. 2 at 5 (1919–22)Ann. Dig. I.L.C. 67 (Austrian Constitutional Court). See also another case decided by the Austrian Constitutional Court on 20 October 1919, Case no. 253–54, m Ibid., no. 18–19 at 36–37 (1919–22) Ann. Dig. I.L.C. 67.

⁴¹ Marek, supra note 38 at 220 et seq.

⁴² Verzijl, supra note 28 at 126.

⁴³ Treaty of Peace between the Allied and Associated Powers and Austria, including Protocol, Declaration and Special Declaration, St. Germain-en-Laye, 10 September 1919, U.K.T.S. 1919 No. 11 (Cmd. 400) (entered into force on 16 July 1920), at Article 177.

⁴⁴ Treaty between the United States and Austria, signed on August 24, 1921, to Establish Securely Friendly Relations between the two Nations (1922 Suppl.), 16 A.J.I.L. 13–16.

⁴⁵ Treaty Establishing Friendly Relations between the United States of America and Hungary, Budapest, 29 August 1921, U.S.T.S. No. 660; (1922 Suppl.) 16 A.J.I.L ’ - 13–16.

⁴⁶ Agreement of 26 November 1924, 48 L.N.T.S. 70; 6 R.I.A.A. 199.

⁴⁷ Administrative Decision no. 1, 25 May 1927, 7 R.I.A.A. 203 at 210 (Tripartite Claims Commission). The commission set up under this treaty decided that compensation for damage suffered by American nationals during the war would be borne by Austria in the percentage of 63.6 per cent and by Hungary for 36.4 per cent.

⁴⁸ Dzierzbicki v. District Electric Association of Czestochowa, 21 December 1933, (1934) O.S.P. no. 288, (1933–34) Ann. Dig. I.L.C. 89 (Supreme Court of Poland, First Division) [Dzierzbicki]. A sum was awarded by a Russian court in Warsaw in April 1914.

⁴⁹ Ibid. The court also stated: “[T]he Polish State is entirely free of obligations which were incumbent upon any of the partitioning powers with the exception of such obligations as the Polish State had itself assumed.” The court noted that under the Peace Treaty of Riga entered into between Russia and Poland the new Polish state did not accept responsibility for such obligations.

⁵⁰ Niemiec and Niemiec v. Bialobrodziec and Polish State Treasury, 20 February 1923, (1923–24) 2 Ann. Dig. I.L.C. 64 (Supreme Court of Poland, Third Division) [Niemiec and Niemiec]. In this case, an incident took place in 1917 in a territory then part of Austria-Hungary where the plaintiffs’ building was destroyed by a fire, which had allegedly been caused by sparks from the engine of a passing train belonging to the Austrian state railways.

⁵¹ Olpinskiv. Polish Treasury (Railway Division), 16 April 1921, 1 O.S.P. no. 15, (1919-22) Ann. Dig. I.L.C. 63 (Supreme Court of Poland, Third Division) [Olpinski]. In this case, an individual had suffered damage in August 1918 caused by the conductor of a train in a territory that was still under Austria-Hungary rule. After the independence of Poland, the plaintiff sued the Polish Treasury on the ground that the Polish state took over Austria-Hungary’s state railways on its territory. The Court of First Instance and the Court of Appeal rendered judgments in favour of the plaintiff based, inter alia, on the principle of legal continuity according to which the new state takes over obligations localized in territories that it acquired. The two lower courts also rendered their decisions based on the ground that a new state cannot take over assets without taking over liabilities. The Supreme Court of Poland rejected the claim and decided that the plaintiff would have to file suit against the Austrian railway authorities since this state continued to exist after 1918.

⁵² Baron A. v. Prussian Treasury, 19 December 1923, 107 E.R.Z. 382 (1923-24) Ann. Dig. I.L.C. 60 (Germany, Reichsgericht in Civil Matters) [Baron]. This case involved an action introduced in 1913 by the legal predecessor of the plaintiff, the owner of some landed property, against the Prussian state for damage caused to him in consequence of some irrigation works undertaken by Prussia. The case was decided in favour of the plaintiff by the District Court of Danzig (May 1913) and by the Court of Marienwerder (Prussia, June 1920).

⁵³ Prussia contended that, inter alia, as the land in question was now situated in Poland, the latter should be held responsible for the amount claimed by the plaintiff and that German courts could not assume jurisdiction in an action that was in fact against a foreign state. The German court indicated that in accordance with Article 256 of the Treaty of Versailles, Paris, signed on 28 June 1919, entered into force on 10 January 1920, U.K.T.S. 1919, No. 8 (Cmd. 223), Poland acquired all the property of Germany and of the German states in the ceded territories. However, it also added that Poland, in the absence of a special agreement, was not responsible for the payment of the sum claimed by the plaintiff.

⁵⁴ This official position, as well as the relevant case law and doctrine, is discussed in Guerin, B., l’évolution du statut juridique, de l’Allemagne de 1945 au traité fondamental (Dusseldorf: Droste, 1978) at 97–105.Google Scholar During a first period (1949–51), the GDR considered itself as identical with the German Reich. At the time, the GDR viewed itself as representing Germany as a whole. This position was radically changed by a decision of the District Court of Appeal (Oberlandesgericht) of Schwerin of 18 June 1951, (1951) N.J., 468 et seq., and by another one of the GDR’s Oberlandesgericht of 31 October 1951, (1952) N.J., 222 et seq., where it was held that the German Reich had disappeared as a result of the war by debellatio. According to this new position, the GDR was a different state and, most importantly, it was not a successor stale. This position prevailed until 1956.

⁵⁵ Guerin, supra note 54 at 109 et seq., provides many examples illustrating this new position of the GDR.

⁵⁶ Oeter, S., “German Unification and State Succession” (1991) 51(2) Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 350–51Google Scholar, explains that the dominant interpretation in doctrine is that the GDR had in fact seceded, but that such secession was “provisional” and not “final” since no final settlement on the status of Germany had been reached. He quotes the following writers supporting this view: Ress, G., “Germany, Legal Status after World War II,” in Bernhardt, R., ed., Encyclopaedia of Public International Law, vol. 10 (North Holland: Max Planck Institute, 1984), 199 Google Scholar; Frowein, J. A., “Die Rechtslage Deutschlands und der Status Berlins,” in Benda, E., Maihofer, W., and Vogel, H.-J., eds., Handbuch des Verfassungsrechts der Bundesrepublik Deutschland (Berlin: Walter de Gruyter, 1983), 48 Google Scholar; and Ress, G., “Grundlagen und Entwicklung der innerdeutschen Beziehungen,” in Isensee, J. and Kirchhof, P., eds., Handbuch des Staatsrechts, vol. 1 (Heidelberg: Müller, 1987), 492.Google Scholar This is also the position of Heilbronner, K., “Legal Aspects of the Unification of the Two German States” (1991) 2 Eur. J. Int’l L. 21 Google Scholar, indicating that “the process of German division and secession of the G.D.R. remained provisional until a final settlement on Germany as a whole could be achieved with the Four Powers.”

⁵⁷ This question is discussed in Eichhorn, B.-W., Reparation als völkerrechtliche Deliktshaftung: Rechtliche und praktische Problème unter besonderer Berücksichtigung Deutschlands (1918–1990) (Baden Baden: Nomos Verlagsgesellschaft mbH and Co. KG, 1992).Google Scholar

⁵⁸ This point is discussed in A. Dawi, “Les problèmes juridiques internationaux posés par les restes matériels des guerres, notamment en Libye” (doctoral dissertation, Université d’Orléans, France, 1994, unpublished) at 105.

⁵⁹ Section IV of the Tripartite Agreement by the United States, the United Kingdom and Soviet Russia, 2 August 1945, 68 U.N.T.S. 190 [Potsdam Agreement].

⁶⁰ Agreement between the USSR and the Provisional Government of National Unity of Poland Concerning the Reparation of Damage caused by the German Occupation, Moscow, 16 August 1945 (1943–45) 145 British and Foreign State Papers 1168–70.

⁶¹ Protocol Concerning the Discontinuance of German Reparations Payments and Other Measures to Alleviate the Financial and Economic Obligations of the German Democratic Republic Arising in Consequence of the War, 22 August 1953, 221 U.N.T.S. 129. In May 1950, the USSR had already decided to reduce the total amount in reparation due by the GDR, having seized property in an amount of US $3.6 billion. On 23 August 1953, Poland also renounced to reparation payments from the GDR. Declaration of the Polish People’s Republic (1953) 9 Zbior Documentow, no. 9 at 1830 (quoted in (no date) 49 Bundesverfassungsgericht 169).

⁶² The declaration was attached to a letter dated 1 February ìggo signed by the GDR’s Prime Minister Modrow and addressed to the president of the World Jewish Congress, Edgard Bronfman. At that time, the question of the amount of reparation was still not settled. The history of the negotiations and the content of the declaration are discussed in Winrow, G., “East Germany, Israel and the Reparations Issue” (1990) 20(1) Soviet Jewish Affairs 37 et seq.Google Scholar These facts are also exposed in Charpentier, J., “Pratique française du droit international” (1990) 35 A.F.D.I. 986 Google Scholar; Rousseau, Ch., “Chronique des faits internationaux” (1990) R.G.D.I.P. 764–65Google Scholar; Schuster, G., “Volkerrechtliche Praxis der Bundesrepublik Deutschland imjahre 1990” (1992) 52 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 1026 Google Scholar; and D’Argent, P., Les réparations de guerre en droit international public (Brussels: Bruylant, 2002) at 217.Google Scholar

⁶³ This declaration was made before the GDR’s Parliament (Volkskammer) by its newly elected prime minister, Lothar de Maizière.

⁶⁴ The GDR never responded to a demand made by the government of Israel in March 1951, requesting compensation in the amount of US $500 million. A little known fact is that in November 1976, the GDR offered to a Jewish organization (named “Claims Conference“) the amount of US $1 million in reparation to former German nationals of Jewish origin now living in the United States. The Claims Conference rejected the proposal. It requested instead in 1979 the payment of some US $100 million in compensation. The GDR refused to pay compensation. See Winrow, supra note 6a at 32–33.

⁶⁵ Treaty on the Establishment of German Unity, 31 August 1990, ( 1991 ) 30 I.L.M. 457

⁶⁶ Declaration of Alma Ata, 21 December 1991, UN Doc. A/46/60, (1992) 31 I.L.M. 147. See also the Decision by the Council of Heads of State of the Commonwealth of Independent States, 21 December 1991, (1992) 31 I.L.M. 151, and “Letter of Russia’s President Mr Elstin to the U.N. Secretary General,” 24 December 1991, (1992) 31 I.L.M. 138. On this question, see Blum, Y. Z., “Russia Takes over the Soviet Union’s Seat at the United Nations” (1993) 3(2) Eur. J. Int’l L. 354.CrossRefGoogle Scholar

⁶⁷ See, for instance, the position of the European Union examined by Jan Kuyper, P., “The Community and State Succession in Respect to Treaties,” in Curtin, D. and Heukels, T., eds., Institutional Dynamics of European Integration, Essays in Honour of Henry G. Schermers, vol. 2 (Dordrecht: Martinus Nijhoff, 1994), 633.Google Scholar On the position of the United States government, see Williamson, E. D. and Osborn, J. E., “A U.S. Perspective on Treaty Succession and Related Issues in the Wake of the Break-up of the U.S.S.R. and Yugoslavia” (1992–33) 33 Va. J. Int’l L. 264 Google Scholar; Love, L., “International Agreement Obligations after the Soviet Union’s Break-up: Current United States Practice and Its Consistency with International Law” (1993) 26(2) Vanderbilt J. Transnatl. L. 373.Google Scholar The practice of states is analyzed in Bühler, K. G., “State Succession, Identity/Continuity and Membership in the United Nations,” in Eisemann, P. M. and Koskenniemi, M., dir., La succession d’Etats: la codification à l’épreuve des faits / State Succession: Codification Tested against the Facts (The Hague: Martinus Nijhoff, 2000), 258.Google Scholar

⁶⁸ The position supporting the “continuity” is adopted by, inter alia, these writers: Mullerson, R., “Law and Politics in Succession of States: International Law on Succession of States,” in Burdeau, G. and Stern, B., eds., Dissolution, continuation et succession en Europe de l’Est (Paris: Cedin-Paris I, 1994), 19 Google Scholar; Bothe, M. and Schmidt, C., “Sur quelques questions de succession posées par la dissolution de l’URSS et celle de la Yougoslavie” (1992) 96 R.G.D.I.P. 824 Google Scholar; and Koskenniemi, M. and Letho, M., “La succession d’Etats dans l’ex-URSS, en ce qui concerne particulièrement les relations avec la Finlande” (1992) 38 A.F.D.I. 189–90.Google Scholar Other writers support the other view that Russia is not the continuing state, but a new state. Rich, R., “Recognition of States: The Collapse of Yugoslavia and the Soviet Union” (1993) 4(1) Eur. J. Int’l L. 45 Google Scholar; Blum, supra note 66 at 357–59; and Tichy, H., “Two Recent Cases of State Succession: An Austrian Perspective” (1992) 44 Osterreichische Zeitschrift für öffentliches Recht und Völkerrecht 130.Google Scholar On this question, see Bühler, supra note 67 at 256; and T. Langstöm, “The Dissolution of the Soviet Union in the Light of the 1978 Vienna Convention on Succession of States in Respect to Treaties,” in Eisemann and Koskenniemi, supra note 67, 723.

⁶⁹ The only non-controversial point is that the three Baltic states are regarded not as new states (and not as successor states of the USSR) but as identical to the three Baltic states that existed before their 1940 illegal annexation by the USSR.

⁷⁰ Mullerson, supra note 68 at 19; Czaplinski, W., “La continuité, l’identité et la succession d’États — évaluation de cas récents” (1993) 26 R.B.D.I. 388 Google Scholar; M. Koskenniemi, “Report of the Director of Studies of the English-Speaking Section of the Centre,” in Eisemann and Koskenniemi, supra note 67 at 71 and 119 et seq.; and Pazartzis, P., La succession d’Etats aux traités multilatéraux à la lumière des mutations territoriales récentes (Paris: Editions Pedone, 2002) at 55–56.Google Scholar

⁷¹ Of the same view, P.M. Eisemann, “Rapport du Directeur de la section de langue française du Centre,” in Eisemann and Koskenniemi, supra note 67 at 40.

⁷² Declaration of Alma Ata, supra note 66. The preamble of the Agreement Establishing the Commonwealth of Independent States, 13 December íggi, UN Doc. A/46/771 (1992) 31 I.L.M. 138 [Minsk Agreement] clearly states that the USSR “as a subject of international law and geopolitical reality no longer exists.” The Alma Ata Declaration, supra note 66 at 147, also mentions that “with the establishment of the C.I.S., the U.S.S.R. ceases to exist.”

⁷³ Marek, supra note 38 at 6: “[T]here is no legal resurrection in international law. Once a State has become extinct, it cannot resume a continued existence.”

⁷⁴ On this point, Dumberry, P. and Turp, D., “La succession d’États en matière de traités et le cas de la sécession: du principe de la table rase à l’émergence d’une présomption de continuité des traités” (2003–2) R.B.D.I. 377 at 401.Google Scholar

⁷⁵ It is thus estimated that more than 2.5 million works of art were transferred from Germany to the Soviet Union at the time.

⁷⁶ Protocol signed on 8 September 1958 between the GDR and the USSR (the final protocol is dated 29July i960). This example is discussed in Boguslavsky, M., “Legal Aspects of the Russian Position in Regard to the Return of Cultural Property,” in Simpson, E., ed., TheSpoils of War. World War II and Its Aftermath: The Loss, Reappearance, and Recovery of Cultural Property (New York: Harry N. Abrams, 1997), 189.Google Scholar It is estimated that some 1.9 million cultural objects belonging to German owners were returned by the USSR to the GDR. Kuhn, P., “Comment on the Soviet Returns of Cultural Treasures Moved Because of the War to the GDR,” Spoils of War, Newsletter no. 2, 1996.Google Scholar

⁷⁷ Treaty between the Federal Republic of Germany and the Union of Socialist Republics on Good-Neighbourliness Partnership and Cooperation, 9 November 1990, ( 1991 ) 30 I.L.M. 505; ( 1991 ) R.G.D.I.P. 214; and Treaty on the Development of Comprehensive Cooperation in the Field of Trade, Industry, Science and Technology, 9 November 1990, ( 1991 ) 2 B.G.B1. 700.

⁷⁸ Abkommen Zwischen der Regierung der Bundesrepublik Deutschland und der der Regierung der Russischen Fédération liber kulturelle Zusammenarbeit, 16 December 1992, (1993) 2 B.G.B1. 1256, at Article 15 [Abkommen Zwischen].

⁷⁹ The legal issues on the question of the restitution of cultural property between Russia and Germany are discussed in Fiedler, W., “Legal Issues Bearing on the Restitution of German Cultural Property in Russia,” in Simpson, supra note 76 at 175–80Google Scholar; Hiller, A., “The German-Russian Negotiation over the Content of the Russian Repositories,” in Simpson, supra note 76 Google Scholar; Gattini, A., “Restitution by Russia of Works of Art Removed from German Territory at the End of the Second World War” (1996) 7(1) Eur. J. Int’l L. 66–88 Google Scholar; and Wilske, S., “International Law and the Spoils of War: To the Victor the Right of Spoils?: The Claims for Repatriation of Art Removed from Germany by the Soviet Army During or as a Result of World War II” (1998) 3 U.C.L.A. J. Int’l L. & Foreign Aff. 223.Google Scholar

⁸⁰ A dispute arose between the two states concerning the interpretation to be given to Article 15 of the Abkommen Zwischen, supra note 78. In 1997, a Russian law was passed stating that all cultural properties brought to Russia as a result of the Second World War were now properties of the Russian Federation and that, consequently, no restitution (with very few exceptions) would be made to Germany. Federal Law on Cultural Values Removed to the USSR as Result of World War II and Located in the Territory of the Russian Federation, 5 February 1997, in Spoils of War, Newsletter no. 4 (1997) at 10-19. The law is discussed in detail in D’Argent, P., “La loi russe sur les biens culturels transférées: Beutekunst, agression, réparations et contre-mesures” (1998) A.F.D.I. 114–43.Google Scholar The constitutionality of the law was upheld by the Russian Constitutional Court in its decision of 20 July 1999. See Blankenagel, A., “Eyes Wide Shut: Displaced Cultural Objects in Russian Law and Adjudication” (1999) 8(4) E. Eur. Const. Rev. 75.Google Scholar

⁸¹ Accord du 27 mai 1997 entre le Gouvernement de la République française et le Gouvernement de la Fédération de Russie sur le règlement définitif des créances réciproques financières et réelles apparues antérieurement au g mai 1945, in (1997) R.G.D.I.P. 1091. The agreement and the memorandum of 26 November 1996 for mutual understanding were approved by the French National Assembly on 19 December 1997 (Bill No. 97–1 160, J.O.R.F., 15 May 1998). The historical background and a comprehensive analysis of the agreement can be found in Szurek, S., “Epilogue d’un contentieux historique. L’accord sur le règlement des créances réciproque entre la France et la Russie” (1998) 44 A.F.D.I. 144 Google Scholar; and Juillard, P. and Stern, B., eds., Les emprunts russes et le règlement du contentieux financier franco-russe (Paris: Cedin Cahiers internationaux n° 16, 2002).Google Scholar

⁸² On this question, see Shahrjerdi, P., “L’indemnisation à raison des mesures soviétiques de nationalisation ou d’expropriation à l’encontre de biens français,” injuillard and Stern, eds., supra note 81 at 89–120.Google Scholar This is also the position of Eisemann, P. M., “Emprunts russes et problèmes de succession d’Etats,” injuillard and Stern, supra note 81 at 53–78.Google Scholar

⁸³ Bassett, J. Moore, Digest of International Law, vol. 6 (Washington: Government Printing Office, 1906) at 942.Google Scholar

⁸⁴ This is apparently what the Attorney General of England concluded following a request made by the British Minister of Foreign Affairs. This information is found in a letter of US Secretary of State Mr. Marcy to French Minister Count Sartiges concerning the claims of French subjects as a result of the US bombardment of Greytown in 1854 (letter dated 26 February 1857), 6 Ms. Notes to French Leg. 301; S. Ex. Doc. 9, 35 Cong. 1 sess. 3, reprinted in Moore, ibid. at 929.

⁸⁵ This is the conclusion reached by US Secretary of State, Mr. Marcy, in a correspondence dated 26 February 1857, Ibid.

⁸⁶ Ibid.

⁸⁷ “Message of US President Jackson of 5 December 1836,” 3 Messages and Papers of the Presidents at 237, reprinted in Moore, supra note 83 at 947 et seq. The issue is also mentioned in this internal US diplomatic communication. “Letter of U.S. Secretary of State Mr Forsyth to Mr Davezac, U.S. Chargé d’Affaires to the Netherlands” (10 September 1836), 14 MS. Inst. Netherlands, 24, reprinted in Moore, supra note 83 at 943. This is the relevant quote taken from the letter: “Had the contest, in the course of which this bombardment took place, terminated favourably to the Netherlands, no doubt is entertained that United States would have had a just claim upon the Government of that country to the indemnification of [United States] citizens for the loss which they had sustained. The fact that the conflict had a different termination can not impair the right of this [United States] Government or its citizens to indemnification; but from which of the countries, or in what proportion from both, the satisfaction is to come it would have been most gratifying to the President [of the United States] to have had determined by themselves. He has accordingly for a long time forborne, notwithstanding the importunity of the sufferers, to urge their claims which appeared to him so just, in the hope that some mutual and voluntary arrangement for their liquidation would have been made ere this between the Governments of Belgium and the Netherlands.”

⁸⁸ Ibid. at 947.

⁸⁹ “Letter of U.S. Secretary of State Mr. Forsyth to Mr. Marcy, U.S. Chargé d’affaires to Belgium” (12 June 1837), 1 MS. Inst. Belgium, 24, reprinted in ibid. at 945.

⁹⁰ This assessment of the position taken by the United States concerning the Antwerp bombardment is made in ibid. at 929–30.

⁹¹ “Letter of U.S. Secretary of State Mr. Webster to Mr. Marcy, U.S. Chargé d’Affaires to Belgium” (26 February 1842), 1 MS. Inst. Belgium, 34, reprinted in Moore, supra note 83 at 945–47: “There is no doubt that the duty or obligation of indemnity, whatever it is, for the losses at Antwerp, falls upon Belgium. The Belgians, as a civilized people, must be considered at all times under some form of civil government, and however often they may see fit to change this form, these changes cannot affect their just responsibility to any foreign state, its citizens or subjects. Succeeding governments necessarily take upon themselves, so far at least as foreign nations are concerned, the obligations of the governments which preceded them, whether those obligations were created by treaty or by the general principles of national law. It is on this ground that the restored governments of Europe have made indemnities to foreign states for excesses committed on the property of citizens or subjects of these states by the revolutionary governments… The Belgians saw fit to change their government which, so far as foreign nations are concerned, they had a right to do. But in doing this they shook off no national responsibility. The moment the authority of the King of the Netherlands ceased over the Belgians, that moment every one of his obligations towards foreign nations, so far as that part of his Kingdom was concerned, devolved on the new government that succeeded him.”

⁹² Moore, supra note 83 at 947. Belgium also pleaded that the injuries suffered were due to an unavoidable incident of war.

⁹³ This is, for instance, the conclusion reached by Verzijl, supra note 28 at 226–27.

⁹⁴ Ibid.

⁹⁵ The principle of non-transfer of obligations is explicitly affirmed in the work of the ILC. Report of the International Law Commission on the Work of its Twenty-Seventh Session, 5 May to 25 July 1975, Draft Articles on State Responsibility, UN Doc. A/10010/Rev.1 (1975), in Yearbook of the International Law Commission 1975, vol. 2, 47 at 101, para. 6. This principle is discussed in Dumberry, supra note 5 at 297–307.

⁹⁶ The facts are explained in: Feilchenfeld, supra note 28 at 351–52; and Verzijl, supra note 28 at 222.

⁹⁷ Claims Convention between the United States and Panama, 28 July 1926, 138 L.N.T.S. 120–26; 6 R.I.A.A. 301 (ratified on 3 October 1931) [Claims Convention], Extracts of the text are reproduced in Feilchenfeld, supra note 28 at 351–52. Under the treaty, both parties agreed to submit to an arbitral tribunal all claims of their nationals against the other state arising out of events that took place after Panama became an independent state in 1903. However, claims for compensation for damage caused in connexion with the construction of the Panama Canal were excluded as they were to be dealt with by the Joint Land Commission under the Panama Canal Convention of 18 November 1903.

⁹⁸ Claims Convention, supra note 97, Article I at para. 2, reads as follows: “Panama agrees in principle to the arbitration of such claims under a Convention to which the Republic of Colombia shall be invited to become a party and which shall provide for the creation or selection of an arbitral tribunal.”

⁹⁹ These questions read as follows: “First, whether the Republic of Colombia incurred any liability for losses sustained by American citizens on account of the fire that took place in the city of Colon on the 31th of March 1885; and, second, in case there should be determined in the arbitration that there is an original liability on the part of Colombia, to what extent, if any, the Republic of Panama has succeeded Colombia in such liability on account of her separation from Colombia on November 3, 1903” [emphasis added].

¹⁰⁰ Thus, Panama “agreed in principle to the arbitration of such claims” and for the establishment of an Arbitral tribunal to decide “to what extent, if any” it had succeeded to the original liability of the predecessor state. (Claims Convention, supra note 0.7, Article I).

¹⁰¹ Stern, supra note 3 at 335–36, makes reference to the issue.

¹⁰² The present author has examined (Dumberry, supra note 5 at 247–336) in detail these different specific circumstances under which the principle of succession should apply in the general context of the issue of state succession to international responsibility (not limited to cases of secession).

¹⁰³ Udina, supra note 17 at 768; Stern, supra note 3 at 350; Lauterpacht, H., Oppenheim’s International Law, vol. 1 (London: Longmans Green and Company, 1955) at 162 Google Scholar; Jenning and Watts, supranote 38 at 218; O’Brien, J., International Law (London: Cavendish, 2001) at 605 Google Scholar; Dupuy, supra note 13 at 54; Brownlie, supra note 17 at 632 (arguing that the successor state’s acceptance of succession to obligations arising from the commission of internationally wrongful acts creates “an estoppel in various particular respects”); Schönborn, W., Staatensuccession, Handbuch des Völkerrechts, vol. 2, Part. 5 (Stuttgard, 1913) at 49 Google Scholar; Monnier, supra note 3 at 67 and go; Volkovitsch, supra note 3 at 2199–200; Ronzitti, N., La successione internazionale tra stati (Milan: Dott. A. Giuffrè, 1970) at 221 Google Scholar; Dugard, J., International Law: A South African Perspective, 2nd edition (Kenwyn: Juta, 2000) at 232–33Google Scholar; Booysen, H., “Succession to Delictual Liability: A Namibian Precedent” (1991) 24 Comp. and Int’l LJ. S. Afr. 207 Google Scholar; and Sastry, T. S. N., State Succession in Indian Context (New Delhi: Dominant, 2004) at 209.Google Scholar

¹⁰⁴ Case Concerning the Gabćíkovo-Nagymaros Project (Hungary v. Slovakia), [1997] I.C.J. Rep. 3 [Gabćíkovo-Nagymaros].

¹⁰⁵ Ibid. at para. 151.

¹⁰⁶ Mioandinghi v. Minister of Defence, Namibia, 14 December 1990, 1991 (1) S.A. 851 (Nm) at 864, 91 I.L.R. 343 at 355 (Namibia, High Court). See also Minister of Defence, Namibia v. Mioandinghi, 25 October 1991, 1992 (2) S.A. 355 (NmS), 91 I.L.R. 358 (Namibia, Supreme Court).

¹⁰⁷ Ibid. at 354–55.

¹⁰⁸ This question is examined in detail in Dumberry, supra note 5 at 268–96. See also Dumberry, Patrick, “New State Responsibility for Internationally Wrongful Acts by an Insurrectional Movement” (2006) 17(3) Eur. J. Int’l L. 605.CrossRefGoogle Scholar

¹⁰⁹ Titles and Texts of the Draft Articles on Responsibility of States for Internationally Wrongful Acts Adopted by the Drafting Committee on Second Reading, 26 July 2001, UN Doc. A/CN.4/L.602/Rev. 1 (2001) [2001 ILC Articles on State Responsibility].

¹¹⁰ Stern, supra note 3 at 344; Atlam, supra note 3 at 422; Zegveld, L., Accountability of Armed Opposition Groups in International Law (Cambridge: Cambridge University Press, 2002) at 155—56CrossRefGoogle Scholar; Pallieri, G. Balladore, Diritto internazionale pubblico, 8th edition (Milan: Giuffrè, 1962) at 173 Google Scholar; Udina, supra note 17 at 768–69; Arangio-Ruiz, G., L’Etat dans le sens du droit des gens et la notion du droit international (Bologna: Cooperativa libraria universitaria, 1975) at 45 Google Scholar; Christenson, G. A., “The Doctrine of Attribution in State Responsibility,” in Lillich, R. B., ed., International Law of State Responsibility of Injuries to Aliens (Charlottesville: University Press Virginia, 1983) at 334 Google Scholar; Moore, supra note 83, vol. I at 44; Quigley, J., “State Responsibility for Ethnic Cleansing” (1999) 32 U.C. Davis L. Rev. 357 Google Scholar; Czaplinski, supra note 3 at 353; and Volkovitsch, supra note 3 at 2199. See also Article 18(1) of Harvard’s Draft Convention on the International Responsibility of States for Injuries to Aliens, 15 April 1961, (1961) 55 Am. J. Int’l L. at 576; and Article XIII (b) of the Harvard Draft of 1929 (1929 Supp.) 23 Am. J. Int’l L. 131–239.

¹¹¹ In the context of the independence of Algeria (a newly independent state), French municipal courts have consistently held that the new state of Algeria should (in principle) provide compensation to French nationals victims of internationally wrongful acts committed by the insurgents of the Front de libération nationale (FLN) in their war efforts to achieve independence. These examples of state practice are analyzed in detail in Dumberry, supra note 5 at 268 et seq.: and Dumberry, supra note 108.

¹¹² Report of the International Law Commission on the Work of its Twenty-Seventh Session, supra note 95 at 101, para. 6. The same explanation is found in “Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts,” supra note 4 at 114, para. 6. See also in Fourth Report on Stale Responsibility of the Special Rapporteur , Ago, Roberto Mr., 24th session of the I.L.C. 1972,Google Scholar UN Doc. A/CN.4/264 and Add. 1, in I.L.C. Report, Doc. A/8710/Rev.1 (A/27/ 10) (1972), ch. IV(B), paras. 72–73, in Yearbook of the International Law Commission 1972, vol. 2, 71 at 131, paras. 159 and 194.

¹¹³ “Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts,” supra note 4 at 114, para. 6.

¹¹⁴ Socony Vaccum Oil Company Case (Settlements of Claims) (1949–55) at 77, (1954) I.L.R. 55 (US International Claims Commission).

¹¹⁵ Ibid.: “Such was the case of the State government under the old [United States] confederation on their separation from the British Crown. Having made good their declaration of independence, everything they did from that date was as valid as if their independence has been at once acknowledged. Confiscations, therefore, of enemy property made by them were sustained as if made by an independent nation. But if they had failed in securing their independence and the authority of the [British] King had been reestablished in this country, no one would contend that their acts against him, or his loyal subjects, could have been upheld as resting upon any legal foundation” [emphasis added].

¹¹⁶ Legal Opinion of the Law Officers of the British Crown (16 February 1863), in McNair, L., International Law Opinions, vol. 2 (Cambridge: Cambridge University Press, 1956) at 257:Google Scholar “In the event of the war having ceased, and the authority of the Confederate State being de jure as well as de facto established, it will be competent to Her Majesty’s Government to urge the payment of a compensation for the losses inflicted on Her Majesty’s subjects by the Confederate Authorities during the War.” This example is reported in Report of the International Law Commission on the Work of its Twenty-Seventh Session, supra note 109 at 103, para. 12.

¹¹⁷ Report of the International Law Commission on the Work of its Twenty-Seventh Session, supra note 95 at 101, para. 8.

¹¹⁸ Even if Article 10(2) of the 2001 ILC Articles on State Responsibility, supra note tog, in the specific context of acts committed by insurrectional movements in their armed struggle for independence does not deal with issues of state succession, it is submitted that the principle it establishes should be used, by analogy, in the different context where independence is achieved as a result of a democratic process instead of an armed struggle. In other words, the principle set out in Article 10(2) of the ILC Articles should apply in the context of succession of states to international responsibility.

¹¹⁹ Peterschmitt, supra note 3 at 62–63. See also Waelbroeck, M., “Arrêt no. 8160 du Conseil d’Etat Belge, note d’observations” (1961–61) R.J.D.A. 36 Google Scholar; and Udina, supra note 17 at 769.

¹²⁰ In its evaluation of Claim no. 4, the French-Greek arbitral tribunal in the 1956 Lighthouse Arbitration case, supra note 23 at 196–200, decided that Greece (the successor state) should be responsible for its own acts of omission committed after the date of succession (1913) as well as for those committed by the de facto autonomous government of Crete before that date at the time when the Island was (at least formally) under Ottoman sovereignty.

¹²¹ In the Samos (Liability for Torts) Case, 1924, no. 27, 35 Thémis 294 (1923–24) Ann. Dig. I.L.C. 70 (Court of the Aegean Islands, Greece), a Greek court decided that it was for the successor state (Greece) to be held responsible for the damage caused by local customs officials of the Island of Samos at the time when it was still (at least formally) under Ottoman rule.

¹²² Cases of cession of territory are different from cases of secession. A case of cession or transfer of territory arises when the events affecting the territorial integrity of the predecessor state (which continues to exist) result in the enlargement of the territory of an existing state. In such a case, there is no new state created. A classic example of a cession of territory is that of Alsace-Lorraine from Germany to France in 1919.

¹²³ Czaplinski, supra note 3 at 356–57; and Verzijl, supra note 28 at 219–20.

¹²⁴ This question is addressed in Dumberry, supra note 5 at 307–22.

¹²⁵ Volkovitsch, supra note 3 at 2210–11; Peterschmitt, supra note 3 at 55–61; Eisemann, supra note 82 at 62; and Drakidis, P., “Succession d’Etats et enrichissements sans cause des biens publics du Dodecanese” (1971) 24 R.H.D.I. 109.Google Scholar

¹²⁶ See the following writers: Udina, supra note 17 at 769–70; Schachter, O., “State Succession: The Once and Future Law” (1993) 33(2) Va. J. Int’l L. 256 Google Scholar; Shearer, I. A., Starke’s international Law, 11th edition (Sydney: Butterworths, 1994) at 303 Google Scholar; Verdross, A., Völkerrecht, 4th edition (Vienna: Springier Verlag, 1959) at 198 CrossRefGoogle Scholar; Verdross, A. and Simma, B., Universelles Völkerrecht, Théorie und Praxis (Berlin: Dunker and Humblot, 1984) at 633–34CrossRefGoogle Scholar; Waelbroeck, supra note 119 at 35; Berat, L., “Genocide: The Namibian Case Against Germany” (1993) Pace Int’l L.Rev. 193 Google Scholar; and Ronzini, supra note 103 at 220–21. See also Restatement (Third), Foreign Relations Law of the United States, vol. 1 (St. Paul: American Law Institute, 1987) at 105, para. 209(g) anfl also reporters’ notes no. 7 (at 107).

¹²⁷ For Hyde, supra note 28 at 437, there has been “little or no concern” on the question whether a “considerable diminution of territory … might serve greatly to impair the ability of [the continuing state] to make adequate redress for wrongs chargeable to it” and that this should therefore “be regarded as a limitation upon [the continuing state] to make a valid cession.” This is also the opinion of Peterschmitt, supra note 3 at 64: “[l]orsque l’Etat prédécesseur a perdu une très grande partie de son territoire, il peut, dans certains cas, paraître injuste que l’Etat continuateur porte tout seul l’obligation de réparer.”

¹²⁸ This question is examined in Dumberry, supra note 5 at 336–41.

¹²⁹ This question is examined in ibid.

¹³⁰ Frontier Dispute Case (Burkina Faso v. Mali), [1986] I.C.J. Rep. 554; Case Concerning the Determination of the Maritime Boundary between Guinea and Guinea-Bissau, Award of 14 February 1985, 19 R.I.A.A. 149 at para. 40. On this point, see Marquez Carrasco, M. del Carmen, “Régimes de frontières et autres régimes territoriaux face à la succession d’Etats,” in Eisemann, and Koskenniemi, , supra note 67 at 493–577 Google Scholar; Pazartzis, supra note 70 at 164–69; Stern, supra note 19 at 255–62. The rule that the successor state cannot denounce an “objective” situation created by a treaty is provided for in Article 12 of the Vienna Convention, supra note 1. In the Gabčíkovo-Nagymaros case, supra note 104 at para. 123, the International Court of Justice considered that “Article 12 reflects a rule of customary international law.”

¹³¹ For instance, in three cases decided by the Supreme Court of Poland, Dzierzbicki, supra notes 48, Niemiec and Niemiec, supra note 50, and Olpinski, supra note 51.

¹³² Baron, supra note 52.

¹³³ As examined earlier, there exist two less significant examples where the opposite principle of succession was adopted: the war reparation paid by the GDR to the USSR and the offer of compensation made to Jewish groups in the context of internationally wrongful acts committed by the German Reich.

¹³⁴ As explained earlier, political considerations may explain the outcome. There is another less significant example where the principle of succession was (at least theoretically) referred to, namely the 1926 treaty between the United States and Panama in the context of the secession of Panama in 1903. Claims Convention, supra note 97.

¹³⁵ This question is examined in Dumberry, supra note 5 at 323–28.

¹³⁶ Mullerson, supra note 68 at 44.