Revisiting State Succession to Humanitarian Treaties: Is There a Case for Automaticity?

Abstract

A belief formed over the last decade, both within and outside the academic community, that humanitarian treaties are subject to a special regime in the law of state succession, known as ‘automatic succession’. This article seeks to critically re-examine the accuracy of this belief. Mendip Communications Job ID: 9407BK--0140-19 5 142 Rev: 12-03-2003 PAGE: 1 TIME: 13:29 SIZE: 61,00 Area: JNLS 142 EJIL 14 (2003), 141–170 3 Reservations to the Genocide Convention, Advisory Opinion, ICJ Reports (1951) 15; Ireland v. United Kingdom, ECHR (1978) Series A, No. 25, 90, at §239; UN Doc. E/CN.4/1995/80; Human Rights Committee (HRC), General Comment No. 24, CCPR/C/21/Rev.1/Add.6. See also M. Shaw, International Law (4th ed., 1997), at 695; Kamminga, ‘State Succession in Respect of Human Rights Treaties’, 7 EJIL (1996) 469. 4 See, for instance, O. Schachter, International Law in Theory and Practice (1991), at 331; Van der Stoel, ‘Human Dimension Commitments Are Matters of Direct and Legitimate Concern to All Participating States’, in W. Zellner and F. Lange (eds), Peace and Stability through Human and Minority Rights: Speeches by the OSCE High Commissioner on National Minorities (1999) 49. 5 See, for instance, SC Res. 253 (1968), for an illustration of how gross human rights violations have been viewed as a threat to international peace and security. 6 See R. Higgins, Problems and Process: International Law and How We Use It (1994), at 95; P. Sieghart, The International Law of Human Rights (1983), at xix. 7 GA Res. 217A (III), 10 December 1948. 8 International Covenant on Civil and Political Rights 1966, 999 UNTS 171; International Covenant on Economic, Social and Cultural Rights 1966, 993 UNTS 3. By analysing the state practice generated during the recent wave of state succession, this article comprehensively elucidates the current customary regime of succession applicable to humanitarian treaties. With minor exceptions, the final verdict appears pessimistic: not only have the successor states not behaved as though succession to humanitarian treaties were automatic, but on the general level there also has not been any de facto continuity in succession patterns. The opinio juris currently held by the successor states strongly disfavours any automaticity of succession. Even the human rights bodies seem to vacillate in their opinion. Nevertheless, the idea of automatic succession to humanitarian treaties, strengthened by the doctrine of ‘acquired rights’, possesses enough legitimacy to be incorporated into positive international law. The major requirement at this stage, therefore, is to boost the spirit of accountability. Depositaries and treaty-monitoring bodies must become more active in discharging their watchdog functions.