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Theories and Practice of State Succession to Bilateral Treaties: The Recent Experience of Kosovo

Published online by Cambridge University Press:  06 March 2019


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This article explores the most recent practice, as exemplified by the case of Kosovo, concerning succession to treaties in international law. In doing so, it examines the precise meaning and legal effects under international law of relevant provisions of the Declaration of Independence (DoI) of Kosovo with respect to international treaties concluded by the United Nations Interim Administration Mission in Kosovo (UNMIK) and the former Socialist Federal Republic of Yugoslavia (SFRY) or, as applicable, any other predecessor entity. More specifically, the aim is to identify and comprehend the fundamental principles underlying the existing or developing practice of treaty succession, and to situate it within a broader framework of succession in international law. Kosovo's absence from key multilateral regimes, in particular the United Nations, dictates a focus on succession to bilateral treaties. Kosovo is in the process of establishing with its partners the status of its bilateral treaties undertaken by way of succession.

Copyright © 2013 by German Law Journal GbR 


1 To date, the Note Verbal has been addressed to the following States: Albania, Austria, Bahrain, Belgium, Belize, Bulgaria, Colombia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Ireland, Island, Italy, Japan, Latvia, Lithuania, Luxembourg, Monaco, the Netherlands, Norway, Panama, Peru, Poland, Portugal, Saudi Arabia, Sweden, Switzerland, Turkey, the United Kingdom, the United Arab Emirates, and the United States.Google Scholar

2 To date, replies have been received from the following States: Austria, Belgium, Bulgaria, Colombia, Czech Republic, Germany, Ireland, Italy, Japan, Lithuania, Luxembourg, Monaco, the Netherlands, Norway, Panama, Peru, Switzerland, the United Kingdom, the United Arab Emirates, and the United States.Google Scholar

3 See Decree for Ratification of the International Agreements, Exchange of Notes, Republic of Kosovo—Republic of Austria, June 9, 2011, available at [hereinafter Succession to Treaties with Austria].Google Scholar

4 See Decree for Ratification of the Agreements, Exchange of Notes, Republic of Kosovo—Kingdom of Belgium, Feb. 23, 2010, available at [hereinafter Succession to Treaties with Belgium].Google Scholar

5 See Decree for Ratification of the Agreements, Exchange of Notes, Republic of Kosovo—Czech Republic, Mar. 30, 2011, available at [hereinafter Succession to Treaties with the Czech Republic].Google Scholar

6 See Decree for Ratification of the Agreements, Exchange of Notes, Republic of Kosovo—Republic of Finland, Sept. 2, 2011, available at [hereinafter Succession to Treaties with Finland].Google Scholar

7 See Decree for Ratification of the Agreements, Exchange of Notes, Republic of Kosovo—Federal Republic of Germany, Sept. 2, 2011, available at [hereinafter Succession to Treaties with Germany].Google Scholar

8 See Decree for Ratification of the Agreements listed in the Exchange of Notes between the Republic of Kosovo and the United Kingdom, available at [hereinafter Succession to Treaties with the UK].Google Scholar

9 See Kosovo Declaration of Independence, Feb. 17, 2008, available at,128,1635 [hereinafter Declaration of Independence, DoI].Google Scholar

19 See S.C. Res. 1244, U.N. SCOR, 4011th Mtg., U.N. Doc. S/RES/1244 (June 10, 1999).Google Scholar

21 Secretary-General, U.N., Report of the Special Envoy of the Secretary-General on Kosovo's Future Status, ¶ 5, U.N. Doc. S/2007/168 (Mar. 27, 2007) [hereinafter Report of the Special Envoy]. For an extensive description of the process that led to Kosovo's declaration of independence, see Henry H. Perritt, Jr., The Road to Independence for Kosovo: A Chronicle of the Ahtisaari Plan (2010); Marc Weller, Contested Statehood: Kosovo's Struggle for Independence (2009). This background was also outlined in some detail in the Advisory Opinion of the International Court of Justice on Kosovo's Declaration of Independence, see infra note 28.Google Scholar

22 Report of the Special Envoy, id. On recent history, the Special Envoy noted “A history of enmity and mistrust has long antagonized the relationship between Kosovo Albanians and Serbs. This difficult relationship was exacerbated by the actions of the Milosevic regime in the 1990s. After years of peaceful resistance to Milosevic's policies of oppression—the revocation of Kosovo's autonomy, the systematic discrimination against the vast Albanian majority in Kosovo and their effective elimination from public life—Kosovo Albanians eventually responded with armed resistance. Belgrade's reinforced and brutal repression followed, involving the tragic loss of civilian lives and the displacement and expulsion on a massive scale of Kosovo Albanians from their homes, and from Kosovo. The dramatic deterioration of the situation on the ground prompted the intervention of … NATO, culminating in the adoption of resolution 1244 (1999) on 10 June 1999.”. Id. ¶ 6. Concerning realities on the ground, the Envoy stated “For the past eight years, Kosovo and Serbia have been governed in complete separation. The establishment of … UNMIK … and its assumption of all legislative, executive and judicial authority throughout Kosovo, has created a situation in which Serbia has not exercised any governing authority over Kosovo. This is a reality one cannot deny; it is irreversible,” and that “Kosovo's current state of limbo cannot continue. Uncertainty over its future status has become a major obstacle to Kosovo's democratic development, accountability, economic recovery and inter-ethnic reconciliation. Such uncertainty only leads to further stagnation, polarizing its communities and resulting in social and political unrest. Pretending otherwise and denying or delaying resolution of Kosovo's status risks challenging not only its own stability but the peace and stability of the region as a whole.” Id. ¶¶ 4 & 6. With regard to negotiations between the parties, the Special Envoy reported “Throughout the process and on numerous occasions, both parties have reaffirmed their categorical, diametrically opposed positions: Belgrade demands Kosovo's autonomy within Serbia, while Pristina will accept nothing short of independence. Even on practical issues such as decentralization, community rights, the protection of cultural and religious heritage and economic matters, conceptual differences — almost always related to the question of status — persist, and only modest progress could be achieved.” Id. ¶ 2.Google Scholar

23 Id. ¶ 3.Google Scholar

25 Report of the European Union/United States/Russian Federation Troika on Kosovo, ¶ 11, 4 December 2007, annexed to S/2007/723.Google Scholar

27 Report of the Special Envoy, supra note 21, ¶ 5.Google Scholar

28 See Accordance with international law of the unilateral declaration of independence with respect to Kosovo, Advisory Opinion, 2010 ICJ Rep. 141, ¶ 71 (July 22), available at [hereinafter Kosovo Advisory Opinion].Google Scholar

29 Declaration of Independence, supra note 9, pmbl.Google Scholar

30 Id. art. 1.Google Scholar

31 Id. art. 12.Google Scholar

32 Comprehensive Proposal for the Kosovo Status Settlement, arts. 1–15, U.N. Doc. S/2007/168/Add.1 (Mar. 26, 2007) [hereinafter CSP].Google Scholar

33 Id. annex I.Google Scholar

34 Id. annex II.Google Scholar

35 Id. annex III, annex V.Google Scholar

36 See G.A. Res. 63/3, U.N. Doc. A/RES/63/3 (Oct. 8, 2008).Google Scholar

37 See U.N. GAOR, 63rd Sess., 22nd mtg. at 10–11, U.N. Doc. A/63/PV.22 (Oct. 8, 2008), available at Scholar

38 Opinion, Kosovo Advisory, supra note 28, ¶ 122.Google Scholar

39 Id. For further discussion on the ICJ's Kosovo Advisory Opinion and its wider implications, see Qerim Qerimi, What the Kosovo Advisory Opinion Means for the Rest of the World, 105 Am. Soc'y Int'l L. Proc. 259, 262 (2011); Recent Advisory Opinion, International Court of Justice Concludes that Kosovo's Unilateral Declaration of Independence Did Not Violate International Law, 124 Harv. L. Rev. 1098 (2011); Richard Falk, The Kosovo Advisory Opinion: Conflict Resolution and Precedent, 105 Am. J. Int'l L. 50 (2011); Roland Tricot & Barrie Sander, Recent Developments: The Broader Consequences of the International Court of Justice's Advisory Opinion on the Unilateral Declaration of Independence in Respect of Kosovo, 49 Colum. J. Transnat'l L. 321 (2011).Google Scholar

40 See G.A. Res. 64/298, U.N. Doc. A/RES/64/298 (Sept. 9, 2010).Google Scholar

41 Id. art. 1.Google Scholar

42 Id. art. 2.Google Scholar

44 See, e.g., European Union External Action, Serbia and Kosovo reach landmark deal, available at Scholar

45 See Ministry of Foreign Affairs, Countries that have recognized the Republic of Kosova, available at,33.Google Scholar

46 Kos. Const. art. 17(1).Google Scholar

47 Id. art. 18(1).Google Scholar

49 Id. 18(2).Google Scholar

50 Id. art. 19(1).Google Scholar

52 Kosovo concluded around 100 treaties—mostly bilateral—since the declaration of independence. See Official Gazette of the Republic of Kosovo, International Agreements, available at See also Ministry of Foreign Affairs, International Agreements, available at,72.Google Scholar

53 On Kosovo's membership to the IMF and World Bank, see Press Release, International Monetary Fund, Kosovo Becomes the International Monetary Fund's 186th Member, Press Release No. 09/240 (June 29, 2009), available at; Press Release, World Bank, Kosovo Joins World Bank Group Institutions, Press Release No. 2009/448/ECA (June 29, 2009), available at,,contentMDK:22230081~menuPK:34463~pagePK:34370~piPK:34424~theSitePK:4607,00.html.Google Scholar

54 For instance, when quoting from Kosovo's DoI, the ICJ has also selected, if not highlighted, paragraphs 9 and 12 that refer to Kosovo's undertaking of its international obligations and its affirmation that it shall be legally bound to comply with the DoI's provisions. See Kosovo Advisory Opinion, supra note 28, ¶ 75. In its written arguments presented to the Court, Kosovo has consistently described the progress achieved in treaty relations. See Written Contribution of the Republic of Kosovo, 17 April 2009, ¶ 2.40, available at; Further Written Contribution of the Republic of Kosovo, 17 July 2009, ¶ 2.17, available at This is the case also with a number of participating states that argued in favor of the legality of Kosovo's Declaration of Independence. See Written Statements, available at; and Oral Statements, available at In the Security Council sessions on Kosovo—when reporting on the progress made by Kosovo or international consolidation of its statehood—the Foreign Minister of Kosovo has also referred to the succession or conclusion of new treaties. See U.N. Security Council, 6367th meeting, S/PV.6367 (Aug. 3, 2010) at 8, available at (“I am very proud of the progress my country and my Government have made since the declaration of independence on 17 February 2008 … We have signed numerous treaties and agreements with many countries.”); U.N. Security Council, 6264th meeting, S/PV.6264 (Jan. 22, 2010) at 10, available at (“[w]e have also entered into numerous bilateral treaties and agreements with many countries around the world—such as those on investment incentives, law enforcement, cooperation in the field of health, mutual travel of citizens, readmission of persons, economic cooperation, police cooperation, mutual assistance in customs matters, development cooperation, mutual abolition of visas … —including with Albania, Austria, Denmark, France, Luxembourg, Macedonia, Slovenia, Turkey and the United States. We recently concluded our first treaty succession agreement, with Belgium.”).Google Scholar

55 See Kosovo Declaration of Independence, supra note 9, at ¶ 9.Google Scholar

56 Id. art. 12.Google Scholar

57 See Vienna Convention on Succession of States in respect of Treaties 1978, art. 2(b), 1946 U.N.T.S 3 [hereinafter 1978 Vienna Convention]. See also Restatement (Third) of Foreign Relations Law § 208 (1987) (conceiving the succession of states to include the termination of “the capacities, rights, and duties of the predecessor state,” which are then “assumed by the successor state.”); Oscar Schachter, State Succession: The Once and Future Law, 33 Va. J. Int'l L. 253, 253 (1993) (stating that the legal category of State succession is a “somewhat imprecise term that deals with the transmission or extinction of rights and obligations of a state that no longer exists or has lost part of its territory … [it] is one of the oldest subjects of international law. Even Aristotle speculated in his Politics on the problem of continuity when ‘the state is no longer the same'.”).Google Scholar

58 Tai-Heng Cheng, State Succession and Commercial Obligations 3 (2006). See also Daniel P. O'Connell, International Law 365 (1970) (maintaining that the rules of state succession are aimed at minimizing any disruption to the international legal community as the result of changes in state sovereignty).Google Scholar

59 See 1978 Vienna Convention, supra note 58. See also Tai-Heng Cheng, id. at 80.Google Scholar

60 See Williams, Paul R., The Treaty Obligations of the Successor States of the Former Soviet Union, Yugoslavia, and Czechoslovakia: Do They Continue In Force?, 23 Denv. J. Int'l L. & Pol'y 1, 8 (1994) (observing that “it is generally considered that the Convention does not reflect customary international law but rather embodies a number of customary legal rules useful for the determination of treaty continuity.”). See also Roda Mushkat, Hong Kong and Succession of Treaties, 46 Int'l & Comp. L.Q. 181 (1997) (observing that the limited international attempts at “codification,” represented in the 1987 Convention, cannot be “regarded as expressing established customary norms or articulating laws grounded in consistent State practice, judicial precedent or juristic opinion”); Tai-Heng Cheng, supra note 59, at 23 (“In light of the lack of uniform state practice and opinio juris, any positivistic rule of state succession is likely to be so broad or vague that it can be easily reinterpreted and manipulated by participants in state succession to advance their interests.”); Robert D. Sloane, The Policies of State Succession: harmonizing Self-Determination and Global Order in the Twenty-First Century, 30 Fordham Int'l L.J. 1288, 1290 (2007) (stating that “[i]n the realm of custom, State practice as to what may broadly be denominated ‘succession issues’ is so diverse as to render efforts to discern customary rules artificial or futile.”); Tai-Heng Cheng, State Succession and Commercial Obligations: Lessons from Kosovo, in Looking to the Future: Essays on International Law in Honor of W. Michael Reisman 675, 682 (Mahnoush H. Arsanjani, Jacob Katz Cogan, Robert D. Sloane & Siegfried Wiessner, eds., 2010); Tai-Heng Cheng, Why New States Accept Old Obligations?, 2011 U. Ill. L. Rev. 1, 12 (2011) (noting that the 1978 Convention, which at the moment has twenty-two State Parties, has not “acquired the status of customary law through widespread acceptance of its provisions, which states would have indicated by acceding to the convention.”); Restatement (Third) of Foreign Relations Law, supra note 58 (stating under the Reporters’ Notes that, “the [1978] Convention has not been ratified by the United States and, while purporting to be a codification of pre-existing customary law, it is not in all respects in accord with the understanding and the practice of the United States and of some other states.”).Google Scholar

61 See, e.g., Williams, Paul R., id. Google Scholar

62 Article 16 of the 1978 Vienna Convention, supra note 58, which sets forth the general rule with respect to newly independent states, provides that “A newly independent 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.”. See also Matthew Craven, The Problems of State Succession and the Identity of State under International Law, 9 Eur. J. Int'l L. 142, 148 (1998); Yilma Makonnen, Namibia: Its International Status and the Issue of Succession of States, 3 Lesotho L.J. 183, 198–203 (1987); Yilma Makonnen, The Nyerere Doctrine 57–73 (1984); Arthur B. Keith, The Theory of State Succession: With Special Reference to English and Colonial Law 58–77 (1907).Google Scholar

63 See 1978 Convention, Vienna, supra note 58, arts. 11–12. The ICJ has dealt in the past with a treaty that involved rights and obligations relating to the use of territory, which according to Article 12 of the 1978 Vienna Convention, are not as such affected by a succession of States. In the context of a Treaty concluded between Hungary and Czechoslovakia in 1977, the ICJ considered that “Article 12 [of 1978 Vienna Convention] reflects a rule of customary international law.” See Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), 1997 I.C.J. 7, at 72. Ultimately, the Court found that “[T]he content of the 1977 Treaty indicates that it must be regarded as establishing a territorial régime within the meaning of Article 12 of the 1978 Vienna Convention. It created rights and obligations ‘attaching to’ the parts of the Danube to which it relates: thus the Treaty itself cannot be affected by a succession of States. The Court therefore concludes that the 1977 Treaty became binding upon Slovakia on 1 January 1993.”.Id. Google Scholar

64 See 1978 Convention, Vienna, id. art. 17. See also Sari T. Korman, The 1978 Vienna Convention on Succession of States in Respect of Treaties: An Inadequate Response to the Issue of State Succession, 16 Suffolk Transn'l L. Rev. 185 (1992).Google Scholar

65 See, e.g., Emanuelli, C., State Succession, Then and Now, With Special Reference to the Louisiana Purchase (1803), 63 La. L. Rev. 1277, 1279 (2003).Google Scholar

66 For example, the universal succession of states with respect to treaties was followed in these cases: the breakups of the Greater Columbian Union in 1929; of Norway and Sweden in 1905; of the Austro-Hungarian Empire in 1918; the USSR in 1991 and continuation by Russia; of Yugoslavia in 1991–92; of Czechoslovakia in 1993; the independence of the British dominions referred to by the Statute of Westminster in 1931; and the dissolution of the United Arab Republic and separation of Egypt and Syria in 1961. Id. at 1282. Other cases, which have followed the clean slate doctrine, include: the separation of Belgium and the Netherlands in 1831 (though local treaties concerning Belgium remained binding); the succession of Finland from the USSR from 1917–1920; the separation of Poland and Czechoslovakia from the Austro-Hungarian Empire in 1918; the independence of Ireland from 1921–1949; the succession of Pakistan from India in 1947 (though Pakistan remained bound by some British and British-Indian treaties in view of a devolution treaty between them); the creation of Israel from 1947–1948; the succession of Bangladesh from Pakistan in 1971; absorption of the German Democratic Republic by the Federal Republic of Germany in 1990; the independence of the Baltic States in 1991; and the emergence of several newly independent states through decolonization, such as Algeria and Upper Volta. Id. at 1283.Google Scholar

67 Cheng, Tai-Heng, State Succession and Commercial Obligations, supra note 61, at 679. See also Emanuelli, id. at 1281–1282 (noting that “State practice relating … [to treaty succession] is inconsistent,” or “rarely reflects either the ‘universal succession’ doctrine or the ‘clean slate’ doctrine in their entirety. In most cases of State succession, some rights and obligations relating to the territory transferred are transmitted from the predecessor State to the successor State, while others are not. Thus, following the absorption of the German Democratic Republic (GDR), the Federal Republic of Germany took over the property and debts of the GDR but refused to be bound by its treaties.”).Google Scholar

68 Emanuelli, , id. at 1280. See Hugo Grotius, De Jure Belli Ac Pacis II, ch. IX, §§ 8–9 (1625), translated in Hugo Grotius, On the Law of War and Peace (A.C. Campbell trans., 1814) (stating that, “[w]henever two nations become united, their rights, as distinct states, will not be lost, but will be communicated to each other.” Also stating that “[i]t may happen that a nation, originally forming but one state, may be divided, either by mutual consent, or by the fate of war; as the body of the Persian Empire was divided among the successors of Alexander. When this is the case, many sovereign powers arise in the place of one, each enjoying its independent rights, whatever belonged to the original state, in common, must either continue to be governed as a common concern, or be divided in equitable proportions.”).Google Scholar

69 Emanuelli, id. Google Scholar

70 See 1978 Convention, Vienna, supra note 58, art. 9(1).Google Scholar

71 See Martins, Marco A., An Alternative Approach to the International Law of State Succession: Lex Nature and the Dissolution of Yugoslavia, 44 Syracuse L. Rev. 1019, 1039 (1993).Google Scholar

72 See 1978 Vienna Convention, supra note 58, art. 11.Google Scholar

73 CSP, supra note 32, art. 3.2. See also Statement by the President of the Security Council, S/PRST/2001/7, 12 March 2001; Enver Hasani, The Evolution of the Succession Process in Former Yugoslavia, 29 T. Jefferson L. Rev. 111, 149 (2006).Google Scholar

74 On divergences that exist between state practice and the Convention's “clean slate rule,” see, e.g., International Law Association, The Effect of Independence on Treaties 2 (1965); D.P. O'Connell, Independence and Succession to Treaties, 38 Brit. Y.B. Int'l L. 84, 131 (1962); Kenneth J. Keith, Succession to Bilateral Treaties by Seceding States, 61 Am. J. Int'l L. 521 (1967); Sari T. Korman, supra note 65, at 194–95.Google Scholar

75 See Nuclear Tests (Australia v. France), I.C.J. Reports 1974, at 253, ¶ 43; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, at 457, ¶ 46.Google Scholar

76 See, e.g., BBC News, Full text: Kosovo declaration, available at Scholar

77 The text of the Declaration can be found in various publicly-accessed instruments of the central institutions of Kosovo. See, e.g., Assembly of Kosovo, Kosovo Declaration of Independence, available at,128,1635.Google Scholar

78 See Written Contributions of the Republic of Kosovo, as well as Written Statements and Comments submitted by other States, available at Scholar

79 See Kosovo Advisory Opinion, supra note 28.Google Scholar

80 See Nuclear Tests cases, supra note 76, ¶ 46 (Australia v. France), and ¶ 49 (New Zealand v. France).Google Scholar

81 See supra note 2.Google Scholar

82 Letter from the President of the United States to the President of Kosovo (Feb. 18, 2008), available at (also noting that, “in its declaration of independence, Kosovo has willingly assumed the responsibility assigned to it under the Ahtisaari Plan. The United States welcomes this unconditional commitment to carry out these responsibilities and Kosovo's willingness to cooperate fully with the international community during the period of international supervision to which you have agreed.”). Id. Google Scholar

83 Note Verbale No. 02/2008 of the British Embassy in Pristina, in Succession to Treaties with the UK, supra note 8.Google Scholar

85 See Kosovo Declaration of Independence, supra note 9, para. 9.Google Scholar

86 Id. para. 1.Google Scholar

87 Id. para. 3.Google Scholar

88 See CSP, supra note 32, art. 15.2.2.Google Scholar

89 Opinion No. 8, Arbitration Commission of the Peace Conference on the Former Yugoslavia, 31 I.L.M. 1521 (1992).Google Scholar

90 S.C. Res. 77, U.N. Doc. S/RES/777 (Sept. 19, 1992).Google Scholar

91 See Regulation No. 1999/24, art. 1.1, available at Scholar

92 Id. art. 1.2.Google Scholar

93 For example, Kosovo already assumed the responsibility to repay a loan that had been taken for activities in Kosovo and for which, in 2001—through an agreement with the World Bank to restructure its portion of outstanding SFRY debt—the FRY became the borrower. In its Loan Assumption Agreement with the International Bank for Reconstruction and Development (IBRD), noting “the Loan Agreement between the IBRD and the Federal Republic of Yugoslavia …, now the Republic of Serbia, dated December 17, 2011,” Kosovo accepted “the rights and benefits” and assumed “the obligations, of the Republic of Serbia … including the obligation to make payment of principal, interest, service, and other charges.” See Loan Assumption Agreement between International Bank for Reconstruction and Development and Republic of Kosovo (Jun. 29, 2009), available at Scholar

94 See, e.g., Succession to Treaties with the Czech Republic, supra note 5; Succession to Treaties with the UK, supra note 8.Google Scholar

95 See, e.g., Succession to Treaties with Germany, supra note 6.Google Scholar

96 See Note verbale to a Permanent Mission to the United Nations regarding the legal personality and treaty-making power of the United Nations Interim Administration Mission in Kosovo (UNMIK) (Mar. 12, 2004), 2004 Yrbk. U.N. 351, 352.Google Scholar

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98 See id. Google Scholar