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Succession of States and international organizations *

Published online by Cambridge University Press:  07 July 2009

Henry G. Schermers
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Extract

On 26 July 1974 the International Law Commission (ILC) adopted its final draft articles on succession of States in respect of treaties and recommended that the General Assembly of the UN convene an international conference to study the draft and to conclude a convention. This terminated twelve years of work during which the ILC studied five reports of Sir Humphrey Waldock, one of Sir Francis Vallat – both Special Rapporteurs for the topic – and many observations from Member States. In December 1974 the General Assembly asked for further comments from the Member States, and deferred further discussion until its 30th session (1975).

Type
Articles
Information
Netherlands Yearbook of International Law , Volume 6 , December 1975 , pp. 103 - 119
Copyright
Copyright © T.M.C. Asser Press 1975

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References

1. Report of the International Law Commission on the work of its twenty-sixth session, 6 May-26 July 1974, G.A.O.R., 29th Session, Supplement No. 10 (A/9610/Rev. 1), para 84.

2. I.L.C. Yearbook 1968 vol. II p. 87, 1969 vol. II p. 45, 1970 voL II p. 25, 1971 vol. II, p. 143; A/CN 4/256 (published in I.L.C. Yearbook 1972 vol. II p. 1).

3. A/CN 4/278.

4. GA Resolution 3315 (XXIX) of 14 December 1974.

5. I.L.C. Yearbook 1963 vol. II p. 261.

6. According to Article 7 the convention will not have retroactive effect.

7. The Soviet Union has consistently advocated this view, see e.g. the interventions of its delegate in the 6th Committee of the General Assembly during the discussions of the I.L.C.reports.

8. See commentary to Art. 15, paras 8–14. See also, however, paragraph 76 of the introductory part of the I.L.C. Report.

9. Jenks, C. Wilfred, State succession in respect of law-making treaties, 29 B.Y.I.L. (1952) pp. 105–144, in particular p. 107.Google Scholar

10. Introduction to the I.L.C. Report, para 76, note 54.

11. G.A. Resolution 3315 (XXIX) of 14 December 1974.

12. Report of the International Law Commission, see n. 1, para 25: “The Commission considered that ‘the priority given to the study of the question of State succession was fully justified’ and stated that the succession of Governments would, for the time being, be considered ‘only to the extent necessary to supplement the study on State succession’.”

13. See also the introductory commentary paras 68, 69.

14. ERTA Case, 22/70, 31 March 1971, consideration 13–19 [1971] European Court Reports (in Dutch, French, German, Italian), pp. 274, 275. English translation by the Court, in Schermers, H.G., International Institutional Law, Vol. 3 (Teaching and Materials) p. 241.Google Scholar

15. Article 234 reads: “The rights and obligations arising from agreements concluded before the entry into force of this Treaty between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of this Treaty.

To the extent that such agreements are not compatible with this Treaty, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established. Member States shall, where necessary, assist each other to this end and shall, where appropriate, adopt a common attitude.

In applying the agreements referred to in the first paragraph, Member States shall take into the entry into account the fact that the advantages accorded under this Treaty by each Member State form an integral part of the establishment of the Community and are thereby inseparably linked with the creation of common institutions, the conferring of powers upon them and the granting of the same advantages by all the other Member States.”

16. Second Nold Case, 4/73, 14 May 1974, consideration 13 [1974] European Court Reports, p. 507–508.

17. Third International Fruit Company Case, 21–24/72, 12 December 1972, [1972] European Court Reports p. 1219. Translation by Common Market Reporter, Court Decisions 1974, (Commerce Clearing House) para 8194. On this case see Schermers, H.G., Community Law and International Law, 12 C.M.L. Rev. (1975) pp. 77–90.Google Scholar

18. See Gottfried, Herbig, Staatsensukzession und Staatenintegration (Mainz, 1968), pp. 48–52.Google Scholar

19. Internationale Handelsgesellschaft Case, 11/70, 17 December 1970, [1970] European Court Reports pp. 1134–1139; [1972] C.M.L.R. pp. 282–286; 8 C.M.L. Rev. (1971) pp. 250–263.

20. European Convention on Human Rights, Article 1.

21. Ibid., Article 25.

22. For further references, see Schermers, , International Institutional Law, Vol. II, pp. 655, 656.Google Scholar

23. Idem p. 654.