1. Introduction
For decades, the interaction between the fields of state succession and state responsibility sparked little interest in the literature. Thus, until a book published in 2007 by myself, Footnote 1 only five articles had focussed on the issue.Footnote 2 Since then a number of other articles have addressed this question.Footnote 3 The Arbitral Tribunal in the 1956 Lighthouse Arbitration case noted that ‘the question of the transmission of responsibility in the event of a territorial change presents all the difficulties of a matter which has not yet sufficiently developed to permit solutions which are both certain and applicable equally in all possible cases’.Footnote 4 Judge Xue in her Declaration in the Croatia Genocide Convention case also noted that ‘little can be found about State succession to responsibility in the field of general international law’,Footnote 5 adding that ‘rules of State responsibility in the event of succession remain to be developed’.Footnote 6
Until very recently, no attempt at codifying this question was pursued by the work of the International Law Commission (ILC), neither in the area of state responsibility nor in that of state succession. In the context of the elaboration of the final ILC Articles on State responsibility, the last Special Rapporteur, Professor James Crawford, highlighted the difficulties and uncertainties surrounding the question: ‘[i]t is unclear whether a new State succeeds to any State responsibility of the predecessor State with respect to its territory’.Footnote 7 Since then two important codification efforts have been conducted in recent years. The Institut de Droit international adopted in 2015 a Resolution on State succession and State Responsibility (the Institute’s Resolution).Footnote 8
This article examines the second recent effort of codification. It provides a critical analysis of the work of the ILC on ‘Succession of States in Respect of State Responsibility’. In 2017, the ILC placed the topic on its programme of work and appointed Professor Pavel Šturma as Special Rapporteur. The ILC Special Rapporteur issued five Reports and a complete set of ‘Draft Articles’.Footnote 9 In 2022, the ILC provisionally adopted, with commentaries, draft ‘Guidelines’ 1 to 15 bis which had been provisionally adopted by the Drafting Committee in previous sessions.Footnote 10 The mandate of Special Rapporteur Šturma ended in 2022. At its seventy-fourth session (2023), the ILC decided to establish a Working Group. While many options were on the table,Footnote 11 in the end the Working Group decided to recommend that the Commission ‘continue its consideration of the topic, but not proceed with the appointment of a new Special Rapporteur’ and that ‘a decision on such a way forward would be taken only’ at the next session ‘so as to allow more time for reflection’ on the basis of a working paper to be prepared by the Chair.Footnote 12 A final decision was taken at the seventy-fifth session (2024). The Working Group recommended drafting a report that ‘would contain a summary of the difficulties that the Commission would face if it were to continue its work on the topic and explain the reasons for the discontinuance of such work’.Footnote 13 In other words, the ILC decided to stop working on the issue and not to adopt any ‘Guidelines’. At the time of writing (September 2024), the final ‘Report’ by Bimal Patel had not been published.
This article tells the story of how the work that Special Rapporteur Šturma had initially envisaged as Draft ArticlesFootnote 14 would eventually become merely ‘guidelines’ when the Drafting Committee got involvedFootnote 15 …and finally be buried for good.
Given that the ILC ultimately decided not to adopt any articles or guidelines, it is entirely legitimate to ask the question why one should bother with this topic at all. I believe that there are many reasons why this question is worth analyzing in some detail. First, whatever the final outcome, the work of the ILC remains important for anyone interested in matters of State succession. The five reports published by Special Rapporteur Šturma will continue to have an important impact on scholarship. Second, the fact that the Guidelines were never formally adopted by the ILC does not mean that they (or the previous ‘Draft Articles’) may not have an impact and influence on how states find solutions to problems of state succession to responsibility. Third, the radical transformation in both content and tone of the different ‘Draft Articles’ initially put forward by Special Rapporteur Šturma when they were later provisionally adopted as ‘Guidelines’ by the Drafting Committee is a story worth telling. It provides a vivid illustration of how states currently consider matters of state succession. It shows that the majority of them are reluctant to be imposed any binding ‘obligations’. What happened at the ILC in the last five years confirms what Zimmerman and Devaney had observed regarding the 1978 Vienna Convention on Succession to TreatiesFootnote 16 : States ‘prefer ad hoc political solutions rather than fixed and somewhat rigid rules’ and this ‘further increases the uncertain nature of the rules on … succession which, in turn, then lead to an even further increase in pragmatic political solutions’.Footnote 17 What happened at the ILC is just the latest illustration of the difficulties of codification in the field of state succession.Footnote 18
This article will provide a critical analysis of the final version of the ILC Guidelines by comparing its content with the Resolution adopted by the Institute in 2015 under the rapporteurship of Marcelo Kohen. While the scope of the ILC Guidelines was to assess ‘whether there are rules of international law governing both the transfer of obligations and the transfer of rights arising from international responsibility of States for internationally wrongful acts’,Footnote 19 this article will only focus on the first question of succession to obligations. Thus, when an internationally wrongful act is committed by the predecessor state against a third state, which state (the predecessor state or the successor state) should be held responsible for the obligations arising from that act?Footnote 20
In Section 2, I will start by examining the similarities between the works of the ILC and the Institute and explain how the Guidelines that were later provisionally adopted were significantly different from the work initially put forward by Special Rapporteur Šturma in both content and tone. The analysis of the different solutions adopted by the ILC Guidelines will start in Section 3 with an assessment of three categories of state succession where the predecessor state continues to exist (separation, newly independent states, and transfer of territory). In Section 4, I will address three other provisions dealing with the opposite situation where the predecessor state does not continue to exist (unification, incorporation, and dissolution).
2. Basic similarities and differences between the approaches followed by the ILC and the Institute
My analysis starts by addressing the similarities between the works of the ILC and that of the Institute.
First, they essentially have the same scope and deal with the issue of succession to both rights and obligations. It is important to highlight at the outset that the question examined here is not one of state succession to state responsibility per se. In other words, it is not whether the successor state should be ‘responsible’ for internationally wrongful acts committed by the predecessor state before the date of succession. As a matter of principle, the successor state cannot be liable for internationally wrongful acts committed by another State (the predecessor state).Footnote 21 The basic principle under Article 1 of the ILC Articles on State Responsibility is that ‘each State is responsible for its own wrongful conduct’.Footnote 22 The predecessor state therefore remains responsible for its own breaches.Footnote 23 The right question to be asked instead is whether there is any succession to the obligations arising from wrongful acts committed by the predecessor state. In other words, the issue is not the transfer of responsibility for internationally wrongful acts, but rather the succession to the consequences of international responsibility arising from the commission of such acts.Footnote 24
Second, both the work of the ILC and that of the Institute are of the same nature. The preamble of the Institute’s Resolution indicates that it is an effort at ‘codification and progressive development of the rules relating to succession of States in matters of international responsibility of States’. ILC Special Rapporteur Šturma also emphasized that the document ‘should be both codification and progressive development of international law’.Footnote 25 Both resolutions only cover situations of succession that are considered legal under international law.
Third, the work of the ILC and that of the Institute also shared, at least initially, the same ultimate goal. The aim of the Institute’s Resolution was to
prevent situations of State succession from leading to an avoidance of the consequences of internationally wrongful acts, particularly in the form of the extinction or disappearance of the obligation to repair, by virtue of the mere fact of the State succession.Footnote 26
To that effect, the Resolution discarded the application of a general and all-encompassing rule of ‘non-succession’ which had been supported by many scholars in the past.Footnote 27 Under this ‘traditional’ approach, the obligation to repair is simply never transferred to the successor state. At the same time, as noted by Rapporteur Kohen in his Final Report,
the purpose of ensuring that obligations stemming from the commission of internationally wrongful acts must be carried out even in cases of State succession must not lead to the adoption of an opposite, general rule of succession to these obligations in all cases.Footnote 28
In other words, the Institute did not support the opposite rule of automatic succession whereby the successor state always takes over the consequences of wrongful acts committed by the predecessor state.
The same approach was adopted by Special Rapporteur Šturma, indicating that ‘he does not suggest replacing one highly general theory of non-succession by another similar theory in favour of succession’, adding that ‘instead, a more flexible and realistic approach is needed’.Footnote 29 As further examined below, this issue would eventually become highly contentious during the work of the ILC.
Fourth, on a related point, both the Institute and the ILC emphasized that different solutions regarding the question of succession to responsibility should be adopted depending on the situations prevailing in each case. Thus, for the Special Rapporteur, ‘at best, it is possible to conclude that it was succession in certain cases’ and that ‘the transfer or not of obligations or rights arising from State responsibility in specific kinds of succession needs to be proved on a case-by-case basis’.Footnote 30 The starting point for both institutions was that the solution adopted for one specific type of succession may very well not be appropriate for other instances of succession.Footnote 31 For instance, the fact that the predecessor state continues to exist after the date of succession in some instances has important consequences with respect to the determination of whether there is any succession to obligations. Both the ILC and the Institute have therefore examined six types of succession separately.Footnote 32 Similarly, the Institute’s Resolution also considered several different factors and circumstances (including the ‘organ’ and ‘direct link’ elements, further discussed below) to determine whether there should be succession to obligations. While the ILC Special Rapporteur initially took the same general approach in his reportsFootnote 33 and in the Draft Articles he put forward, the Drafting Committee subsequently took a drastically different direction. As further discussed below, this is in fact one feature where the content of the Guidelines is significantly different from that of the Institute’s Resolution.
In the end, the final work of the ILC (which ended up never being adopted) is very different from that of the Institute. Yet, the first set of rules and principles put forward by Special Rapporteur Šturma in his reports and Draft Articles were very much in line with most of the content to the Institute’s Resolution.Footnote 34 But a clear and undeniable shift occurred when each article was subsequently examined by the ILC Drafting Committee. Each Article was systematically diluted of its ‘binding’ content and the tone became much softer. In the following sections, I will explain how this shift happened and what are the consequences resulting from adopting this new language.
Another interesting question is why this radical change in both content and tone occurred. At the outset, it seems that several ILC members were reluctant to study the question of succession to responsibility. Thus, the 2018 Report to the ILC indicates that the ‘scarcity of State practice’ and the fact that it was ‘diverse, context-specific and often politically sensitive’ were mentioned as ‘difficulties’ which ‘confirmed the initial misgivings expressed by some members as to the suitability of the topic for codification or progressive development’.Footnote 35 Several States have also mentioned the same concern in their comments at the UNGA Sixth Committee about the suitability of the topic for codification.Footnote 36 In addition, the Report also explained that ‘several members expressed caution at the heavy reliance of the report on academic writings and on the work of the Institute of International Law’.Footnote 37 Many states expressed the same concerns about the undue reliance on such materials;Footnote 38 some of them being very specific on that point.Footnote 39 As a result, many states considered that the work could only be treated as progressive development of the law, not an exercise of codification.Footnote 40
Another important point is that the general approach which was adopted by Special Rapporteur Šturma (in line with the Institute’s Resolution) was not shared by several ILC members. They openly supported the ‘traditional’ rule of non-succession and ultimately rejected any approach that they considered favorable to succession to obligations.Footnote 41 In their statements, RussiaFootnote 42 and AustriaFootnote 43 were probably the most virulent critics of the approach adopted by the Special Rapporteur and considered that he had, in fact, endorsed the rule of automatic succession to obligations. It is true that many states did support the middle-ground approach favoured by the Special Rapporteur by rejecting both the rule of non-succession and that of automatic succession.Footnote 44 Yet, many other states clearly endorsed the ‘traditional’ rule of non-succession.Footnote 45 Only a few states took the opposite view.Footnote 46
These theoretical disagreements would have some very practical consequences on the work of the ILC. They ultimately led to the provisional adoption of ‘Guidelines’ instead of ‘Draft Articles’. This is because ‘several members questioned whether the development of draft articles was the most appropriate outcome’.Footnote 47 They preferred a document that ‘would be designed to serve as general guidance for States (as opposed to developing a set of binding rules)’.Footnote 48
I will first examine in Section 3 the work of the ILC regarding three categories of state succession where the predecessor state continues to exist: separation, newly independent states, and transfer of territory. In Section 4, I will address three other provisions dealing with the opposite situation where the predecessor state does not continue to exist: unification, incorporation, and dissolution of state.
3. Cases where the predecessor state continues to exist
In order to have a better understanding of the nature of the changes of language which occurred during the work of the ILC, it is helpful to look briefly at how the Institute’s Resolution dealt with the question. The Resolution includes a general clause providing the framework of analysis regarding matters involving succession to obligations in the specific situation where the predecessor state continues to exist after the date of succession. Article 4 of the Institute’s Resolution highlights three points:
The first paragraph expresses the basic principle mentioned in Article 1 of the ILC’s Articles on State Responsibility that only the state, which has actually committed an internationally wrongful act, should engage its responsibility for it;
The second paragraph explains that, in general, the predecessor state (now called the ‘continuing’ state after the date of succession) should remain responsible for its own internationally wrongful acts, including those committed before the date of succession;
The third paragraph indicates that there are specific circumstances where the injured state can request reparation to the successor state, or both the predecessor state and the successor state.
This provision is important because it provides a road map for the solutions followed in Chapter III of the Institute’s Resolution dealing with three categories of state succession involving situations where the predecessor state continues to exist. Thus, while Article 4(2) provides the general rule, Article 4(3) indicates that there are several exceptional circumstances where a different solution should apply and when the obligations arising from an internationally wrongful act should, in fact, pass to the successor state (even though the predecessor state continues to exist). Articles 11 (transfer of territory), 12 (separation) and 16 (newly independent states) of the Institute’s Resolution follow the same structure. The ILC Guidelines do not contain a general provision like Article 4.Footnote 49
3.1 General rule: The continuing state remains responsible for its own obligations
In the context of separation, the basic principle under Article 12(1) of the Institute’s Resolution is that the obligations arising from an internationally wrongful act committed by the predecessor state do not pass to the successor state. The solution of non-succession is adopted for the simple reason that the predecessor state (now called the ‘continuing’ state) continues to exist following the separation of a part of its territory. It should therefore remain the holder of obligations arising from wrongful acts which took place before the date of succession. The Institute’s Resolution also adopted the same general principle of non-succession for newly independent states (Article 16(1)) and transfer of territory (Article 11(1)). This solution is line with state practice.Footnote 50
The same principle of non-succession was initially followed by the ILC Special Rapporteur in earlier draft Articles attached to his 2018 Second Report regarding separation (Article 7(1)),Footnote 51 newly independent states (Article 8(1))Footnote 52 and transfer of territory (Article 9(1)).Footnote 53 All three provisions clearly indicated that, as a matter of principle, the obligations ‘do not pass’ to the successor state. The three provisions were later regrouped, and a new proposal for a single clause was submitted by the Special Rapporteur.Footnote 54 At its seventy-second session, in 2021, the ILC provisionally adopted, inter alia, Draft Article 9, which had been provisionally adopted by the Drafting Committee at the seventy-first session in 2019.Footnote 55 In 2022, the provision would become Guideline 9. It followed a different approach. It indicates that ‘an injured State continues to be entitled to invoke the responsibility of the predecessor State even after the date of succession’.
In my view, the wording used in Guideline 9(1) is not the most efficient. In his Second Report, the ILC Special Rapporteur had clearly adopted (as recognized by the Chair of the Drafting CommitteeFootnote 56 ) a ‘general rule of non-succession’ in the context of separationFootnote 57 precisely because the predecessor state remains responsible for its own wrongful acts.Footnote 58 It may have been preferable for Guideline 9(1) to simply affirm the uncontested proposition that, as a matter of principle,Footnote 59 the obligation to repair ‘does not pass’ to the successor state and that the predecessor state remains responsible for its own wrongful acts. In fact, the point is already covered by Guideline 6.Footnote 60 Such language would have been more effective than merely stating the (rather obvious) fact that the injured state ‘continues to be entitled to invoke the responsibility of the predecessor State’ after the date of succession.Footnote 61 While this language may not be optimal, it is, in any event, far better than some other propositions that were discussed at the Commission.Footnote 62
3.2 Exceptional situations where obligations could pass to the successor state
This section will discuss another feature of Guideline 9(1) which is much more problematic. As mentioned above, both the Institute’s Resolution and the earlier ILC Draft Articles contain possible exceptions to the general rule whereby the continuing state remains responsible for its own obligations. As further discussed in the next paragraphs, ILC Draft Articles 7(2)(3), 8(2) and 9(2)(3) referred to two exceptional circumstances where the obligations could pass to the successor State. In contrast, Guideline 9(1) no longer includes any reference to these two exceptions.
3.2.1 The ‘organ’ and ‘direct link’ exceptions
Article 12(3) of the Institute’s Resolution provides for one possible exception to the general principle of non-succession (mentioned in Article 12(1)) in the context of separation.Footnote 63 It concerns the situation when the author of a wrongful act committed before independence was an ‘organ of the territorial unit of the predecessor State’, such as an autonomous government, ‘that has later become an organ of the successor State’.Footnote 64 There is some state practice adopting this solution.Footnote 65 One example would be an unlawful or uncompensated acts of expropriation committed by a province, a canton, or any kind of a state-unit with significant autonomy, against a foreign investor before independence. After that entity becomes an independent state, the obligations arising from the wrongful act may pass to the successor state ‘if particular circumstances so require’. One example would be a new state benefiting from assets expropriated without having compensated the owner of the property. The solution adopted in Article 12(3) of the Institute’s Resolution was initially followed by the ILC Special Rapporteur in earlier Draft Articles 7(2) (separation),Footnote 66 9(2) (transfer)Footnote 67 and, to some extent, in Draft Article 8 (newly independent states).Footnote 68
The earlier work of the ILC contained a second exception to the general principle of non-succession: the ‘direct link’ exception.Footnote 69 In the context of separation,Footnote 70 ILC Draft Article 7(3) indicated that:
If particular circumstances so require, the obligations arising from an internationally wrongful act of the predecessor State, where there is a direct link between the act or its consequences and the territory of the successor State or States, are assumed by the predecessor and the successor State or States.Footnote 71
There is some state practice adopting this solution.Footnote 72 One example of such a ‘direct link’ would be the expropriation of assets taken place in the territory of a state-unit, which later becomes an independent state. In his Report, the Special Rapporteur indicated that, in the context of separation, the successor state was ‘not automatically responsible’ for such obligations ‘solely based on the fact that such acts took place on what is now its territory’, adding that ‘the linkage of the acts to the territory is only one relevant element that needs to be taken into account’.Footnote 73
3.2.2 Modifications downgrading the role and importance of these exceptions
One of the most intriguing features of Guideline 9 is that it no longer contains any explicit reference to the ‘organ’ and ‘direct link’ exceptions.Footnote 74 This is a surprising outcome considering the importance given to them by the ILC Special Rapporteur. He stated in his Second Report that ‘despite non-succession being a general principle in this context’ (i.e., separation) ‘it might not be of an absolute character’.Footnote 75 He spoke of the ‘need to draft an article … in which the general principle of non-succession is complemented by a number of exceptions’.Footnote 76 He referred to the ‘direct link’ and ‘organ’ exceptions as ‘situations that would justify a different approach’ than the principle of non-succession.Footnote 77 In contrast, Guideline 9(2), which was adopted in 2019 by the Drafting Committee, simply indicates that ‘in particular circumstances, the injured State and the successor State should endeavour to reach an agreement for addressing the injury’.Footnote 78 In the following paragraphs, I will make three observations about the new language contained in Guideline 9.
First, in his 2019 Statement, the Chair of the Drafting Committee explained that the ‘purpose’ of Guideline 9(2) was to ‘address exceptional situations where there is a direct link between the act or its consequences and the territory of the successor State or States’ and that ‘in such circumstances, the predecessor State may not be in a position to address the injury alone and may need the cooperation with the successor State to do so’.Footnote 79 The same observation is contained in the commentary to Guideline 9.Footnote 80 The Chair also added that ‘the term “in particular circumstances” covers diverse situations where a successor State may be addressing the injury, which will be described in the commentary’.Footnote 81 In the commentary to Guideline 9,Footnote 82 reference is made to both the ‘organ’ and ‘direct link’ exceptions,Footnote 83 but also to situations involving restitution of property,Footnote 84 or unjust enrichment.Footnote 85 These clarifications in the commentary are very useful. Yet, it shows that both the Special Rapporteur and the Drafting Committee always had in mind the ‘organ’ and ‘direct link’ exceptions as ‘particular circumstances’ which could require a different solution than that of non-succession. In my view, a better approach would have been to explicitly mention these two exceptions (and possibly others) directly in the text of Guideline 9(2), just as it was previously done in Draft Articles 7 and 9.
Second, Guideline 9 is fundamentally different from Draft Articles 7 and 9 put forward by the ILC Special Rapporteur. Draft Article 7(3) indicated that in cases where there is a ‘direct link’ between the consequences of a wrongful act and the territory of one successor State, the obligation to repair would be (‘if particular circumstances so require’) ‘assumed’ by both the predecessor state and the successor state.Footnote 86 Similarly, in the context of the ‘organ’ exception under earlier Draft Articles 7(2) and 9(2), the obligation to repair is (‘if particular circumstances so require’) ‘transferred’ to the successor state. Guideline 9(2) is completely different. The successor state no longer has to ‘assume’ (or be ‘transferred’) any obligation. This is a significant and deliberate change, not a minor drafting anomaly. The Chair of the Drafting Committee explained that the purpose of paragraph 2 was ‘not to create obligations entailing the automatic transfer of obligations to the successor state, but instead is to signal the possibility for the successor state to reach an agreement with the injured state for addressing the injury’.Footnote 87 The same observation is contained in the commentary to Guideline 9.Footnote 88 This is a good example of a provision that was initially meant to impose some obligations on the successor state, but was later completely diluted of its ‘binding’ content. The successor state no longer has any obligation (‘if particular circumstances so require’) to actually repair the damage done. Now, the injured state has merely the possibility to reach an agreement with the successor state on the matter.Footnote 89 While the parties concerned may very well reach such an agreement, they are certainly under no obligation to do so. If they do not, this could lead to a situation where a wrongful act remains un-remedied.Footnote 90
Third, the modification completely changes the very nature of the two exceptions. Under Draft Articles 7 and 9, the ‘organ’ and the ‘direct link’ exceptions were relevant to determine whether or not there could be any transfer of the obligation to repair to the successor state.Footnote 91 This is no longer the case. Now, the two exceptions are only useful in the context of an eventual agreement to be reached between the states concerned.Footnote 92 This is because, when there is a direct link between a wrongful act (and its consequences) and the territory of the successor state, the ‘predecessor State may not be in a position to address the injury alone and cooperation with the successor State may be necessary’.Footnote 93 In other words, in these circumstances the injured state may want to address its claim to the successor state rather than the continuing state. The role and importance of the two exceptions has thus been significantly downgraded. They are now only useful to the injured state in assessing whether the ‘successor State may be relevant for addressing the injury’.Footnote 94
In sum, the overall impression is that Guideline 9(2) is much less efficient than earlier Draft Articles 7 and 9 in protecting the interests of injured states. The Chair of the Drafting Committee nevertheless explained that ‘the purpose of paragraph 2 is also to signal that the consequences of the internationally wrongful act do not disappear simply because of the succession of States’.Footnote 95 That signal was indeed clear under the earlier Draft Articles. They explicitly referred to the possibility of obligations being assumed or transferred to the successor state when there is a ‘direct link’ or when the act was committed by an ‘organ’ of a territorial unit. The wording used in Guideline 9(2) no longer ‘signals’ any possible accountability. As a result of the modification, the real ‘purpose’ of Guideline 9(2) is merely to express ‘the possibility of an agreement between the successor State and the injured State’ regarding the consequences of wrongful acts committed before independence.Footnote 96 The provision does not impose any binding obligations on anyone.Footnote 97 In contrast, the two exceptions under the Institute’s Resolution are referred to as ‘situations calling for the transfer of … obligations to the successor State’.Footnote 98 The difference between the nature and aim of the two documents could hardly be clearer.
4. Cases where the predecessor state cease to exist
In this section, I will address three other provisions dealing with the situation where the predecessor state does not continue to exist: unification, incorporation, and dissolution of state.
4.1 Unification of states
Unification involves the merger of two (or more) states to form a new state. Under Article 13 of the Institute’s Resolution, since the predecessor states cease to exist as a consequence of the unification, it follows that the obligations arising from an internationally wrongful act committed by one of them ‘pass to the successor State’. This solution is in line with state practice.Footnote 99 The ILC Special Rapporteur adopted the same solution in Draft Article 10(1).Footnote 100 In fact, in his Second Report, he speaks of the application of a ‘presumption’ of the transfer of obligations in the context of unification.Footnote 101 This is because in this situation ‘the wrongdoing State does not exist any longer, but the consequences of its international wrongful acts continue’.Footnote 102 For him, ‘the application of the general rule of non-succession’ here ’would mean that no State incurs obligations arising from internationally wrongful acts’, adding that ‘such a solution would be hardly compatible with the objectives of international law, which include equitable and reasonable settlement of disputes’.Footnote 103
The clear and affirmative language contained in that provision (i.e., obligations ‘pass to the successor State’) is no longer present in Guideline 10, which the ILC provisionally adopted at its seventy-third session, in 2022, after it had been provisionally adopted by the Drafting Committee in 2021.Footnote 104 The new provision indicates instead that in the context of ‘uniting of States’,Footnote 105 ‘the injured State and the successor State should agree on how to address the injury’.Footnote 106 How and why did the content of this provision changed so radically?
The clause was modified because of criticisms by some ILC members which considered the earlier draft as an endorsement of a general presumption of successionFootnote 107 or a rule of ‘automatic succession’.Footnote 108 They were also critical of the position adopted by the Institute on the matter.Footnote 109 Their views are clearly reflected in the commentary to Guideline 10 explaining that ‘the provision is not to be interpreted as a rule of automatic succession, as rights and obligations do not automatically transfer from a predecessor State to a successor State’.Footnote 110 In contrast, other members were concerned that the new clause would amount to adopting the ‘clean’ slate approach and ‘would risk leaving the injured State without remedy’.Footnote 111 Their views are also reflected in the commentary.Footnote 112 The Chair explained that the final wording adopted by the Drafting Committee in 2021 was the ‘result of a compromise between the various divergent positions’ (‘a middle ground between these formulations’) insofar as it ‘does not articulate a “clean slate” rule or an automatic succession rule’.Footnote 113 The Special Rapporteur made the same comment in his last report.Footnote 114 Guideline 10 calls for a number of observations.
First, in my view, the wording ‘should’ (or even ‘shall’) ‘agree on how to address the injury’ is clearly not strong enough. In fact, the Chair indicated that some members of the Drafting Committee favored ‘formulating the obligation to address the injury in stronger terms, and thereby avoiding the impression that the “clean slate” rule applied to the circumstance contemplated in the draft article’.Footnote 115 She referred to several drafting examples (such as ‘shall reach an agreement’) that were discussed and stipulated that the injured state and the successor state have an obligation of result.Footnote 116 In his Fifth Report, the ILC Special Rapporteur indicated that ‘even if the wording may appear rather weak, one should recall the concept of pactum de negotiando in international law’, i.e., that the obligation ‘to negotiate with a view to concluding an agreement – must be fulfilled in good faith, in accordance with the fundamental principle pacta sunt servanda’.Footnote 117 While this is true, it remains that the wording is indeed very ‘weak’. The formulation used leaves wide open the possibility that the parties will never reach an agreement. There are basically no negative consequences under the Guidelines if they do not. As pointed out by the United States in its statement to the Sixth Committee, the language ‘appears to be binding, but it is unclear what that legal obligation entails in practice’; it is more an ‘exhortation to cooperate’ than anything else.Footnote 118
Second, in the event that the states concerned do not ‘agree on how to address the injury’, the injured state would be left with no debtor against whom it could file a claim for reparation. This outcome would result in a wrong remaining un-remedied. This is precisely the outcome that the ILC Special Rapporteur described as a solution ‘hardly compatible with the objectives of international law, which include equitable and reasonable settlement of disputes’.Footnote 119 In fact, keeping the language of Draft Article 10(1) (obligations ‘pass to the successor State’) would have prevented such a possible outcome.
Third, a strongly worded provision, like Draft Article 10(1), would have still allowed the parties concerned to reach whatever agreement they wish to enter into. One of the basic principles at the heart of the work of the ILC is the subsidiary nature of the solutions put forward in the Guidelines. This is indeed what earlier Draft Article 10(3) provided for (‘unless the States concerned, including an injured State, otherwise agreed’).
Fourth, the Chair explained that the provision ‘is intended to encourage States to seek a solution to questions of international responsibility in situations of a merger between States’.Footnote 120 The states concerned clearly do not need any ‘encouragement’ to resolve these matters. They are of course always free to reach an agreement. In that sense, the provision is rather useless.
4.2 Incorporation of state
Cases of ‘incorporation’ involve one state becoming part of another already existing state. Only the incorporated state ceases to exist; the enlarged (successor) state continues its prior legal personality. Under Article 14 of the Institute’s Resolution, the obligations arising from an internationally wrongful act committed by the predecessor state ‘pass to the successor State’. There are examples of modern state practice adopting this solution.Footnote 121 The ILC Special Rapporteur adopted the same approach in Draft Article 10(2).Footnote 122 As mentioned above, he considered this principle a ‘presumption’ finding application ‘unless the States concerned, including an injured State, otherwise agreed’.Footnote 123 In my view, this solution was coherent with the general aim of the Draft Articles. Given the fact that the predecessor state ceases to exist because of its incorporation into another existing state, any other solution than succession would result in an internationally wrongful act committed before the date of succession remaining un-remediated.
The affirmative language contained in Draft Article 10(2) (obligations ‘pass to the successor State’) is no longer present in Guideline 10 bis, which the ILC provisionally adopted at its seventy-third session, in 2022, after it had been provisionally adopted by the Drafting Committee in 2021.Footnote 124 It indicates that ‘the injured State and the incorporating State should agree on how to address the injury’.Footnote 125 As mentioned above, this language was the result of a compromise between opposite views of members of the Committee.Footnote 126 The commentary makes it clear that the ‘obligations arising from the internationally wrongful act do not pass automatically to the incorporating State’.Footnote 127 It also adds that it is ‘incumbent’ on the parties concerned ‘to pursue an agreement’ and that ‘the obligation to negotiate in good faith is also relevant here’.Footnote 128 In other words, by putting the injured state and the successor state on an equal footing and by merely letting them decide ‘how to address the injury’, Guideline 10 bis leaves the door open to the possibility that a wrong remains unpunished. For the same reasons as those mentioned in the previous section, I believe that this solution is clearly not the most effective to protect the interests of the injured state.
Finally, it should be added that Guideline 10 bis (2) provides that when a wrongful act has been committed before the incorporation ‘by a State prior to incorporating another State’ (i.e., the ‘incorporating State’) its responsibility ‘is not affected’ by the incorporation. In other words, the ‘incorporating State’ continues to be responsible for its own wrongful acts committed before the date of succession.Footnote 129 That rule is not controversial. In fact, it was probably not necessary to include this second paragraph given that Guideline 6 already provides for exactly the same rule.Footnote 130
4.3 Dissolution of state
4.3.1 Transfer of obligations to the successor state(s) depending on relevant factors
Article 15(1) of the Institute’s Resolution establishes the solution of succession: the obligations arising from the commission of a wrongful act by the predecessor state ‘pass’ to ‘one, several or all the successor States’ depending on the circumstances mentioned in Article 15(2)(3). This provision is in accordance with one of the most fundamental principles guiding the Resolution: avoiding, as much as possible, that a wrong remains unpunished as a result of the dissolution of a state. There are examples of modern state practice adopting this solution.Footnote 131 The same general approach was adopted by the ILC Special Rapporteur in Draft Article 11(1).Footnote 132 It should be mentioned that the provision also added that such a transfer of obligations was ‘subject to an agreement’ between the states concerned. The use of this language seems to suggest that there must be an agreement for any such transfer of obligations to occur.Footnote 133 Article 15(1) of the Institute’s Resolution does not contain that caveat.Footnote 134
Article 15(3) of the Institute’s Resolution indicates that ‘in order to determine which of the successor States becomes bearer of the obligations’ to repair, there are two ‘relevant factors’.Footnote 135 Importantly, succession is not automatic under Article 15(3); these are just ‘relevant factors’ to be considered for the distribution of obligations among the successor states. The first relevant factor is the existence of a ‘direct link’ between the consequences of an internationally wrongful act committed by the predecessor state and the territory or the population of one of the successor states.Footnote 136 ILC Draft Article 11(2) also referred to the importance of this ‘direct link’.Footnote 137 The second ‘relevant factor’ mentioned in Article 15(3) of the Institute’s Resolution is when the author of the internationally wrongful act was an organ of the predecessor state that later became an organ of the successor state. While ILC Draft Article 11(2) did not refer specifically to this ‘organ’ factor,Footnote 138 it remains that it is certainly one of those ‘other relevant factors’ (mentioned in Draft Article 11(2)) that would have to be considered.Footnote 139
4.3.2 Modification leading to abandoning this principle
The ILC provisionally adopted Guideline 11 at its seventy-third session, in 2022, after it had been provisionally adopted by the Drafting Committee at the same session.Footnote 140 The provision is substantially different compared to both Article 15 of the Institute’s Resolution and the Draft Article put forward by the ILC Special Rapporteur. Guideline 11 no longer contains the clear and affirmative language found in Draft Article 11(2) (obligations ‘pass, subject to an agreement’ to one or several successor state(s)). It merely indicates that ‘the injured State and the relevant successor State or States should agree on how to address the injury’.Footnote 141 In the next paragraphs, I will make a few observations regarding this modification.
First, the Special Rapporteur explained that the solution under Guideline 11 was ‘a middle-ground approach’ adopted ‘to overcome the dichotomy between the clean slate rule and automatic succession’.Footnote 142 The same observation is also found in the commentary.Footnote 143 Thus, some members remarked that the earlier draft provision ‘espoused a general presumption of succession to responsibility that was inconsistent with the general rule of non-succession in respect to State responsibility’ and that ‘there was not sufficient State practice in support of such a presumption of succession, which found support only in some academic writings and in the work of the Institute of International Law’.Footnote 144 For these members, ‘in the absence of consent, it was simply not possible to deduce any assumption of obligations by the successor State’.Footnote 145 It is interesting to note in this respect the completely opposite positions adopted by the NetherlandsFootnote 146 and Austria on this issue.Footnote 147 As such, the approach adopted by the ILC is radically different from that followed by the Institute in Article 15.
Second, the commentary to Guideline 11 indicates that the provision ‘recognizes the existence of an obligation among the concerned States to seek to agree on how to address the injury’.Footnote 148 In fact, this is merely an ‘obligation’ to negotiate. There is obviously no ‘obligation’ to actually reach any agreement. This is clear from the fact that elsewhere the commentary mentions that the phrase ‘is to be understood in the same manner as in draft guidelines 10 and 10 bis, including the obligation to negotiate in good faith’.Footnote 149 As mentioned above, there is clearly no obligation imposed on the states concerned to reach any agreement under Guidelines 10 and 10 bis. My comments above about the consequences of adopting such weak language equally applies to Guideline 11. I would simply add that the ILC Special Rapporteur explained in his Second Report that ‘modern State practice’ in the context of dissolution ‘allows for a rejection of a strict and automatic application of the principle of non-succession’Footnote 150 which ‘would be in complete contradiction with the very idea of justice’.Footnote 151 However, the weak language ultimately used in Guideline 11 does not prevent in any way the states concerned from not reaching an agreement on the allocation of obligations. If they do not, there would simply be no transfer of obligations to the successor state(s). This would result in a wrongful act remaining unpunished. Such an outcome would undoubtedly be ‘in complete contradiction with the very idea of justice’.Footnote 152
Third, another important point is that the expression ‘the injured State and the relevant successor State or States should agree on how to address the injury’, used in Guideline 11, only concerns the relationship between the successor state(s) and the injured state.Footnote 153 The provision ‘does not cover an agreement between the successor States themselves’.Footnote 154 What if the successor states among themselves decide that none of them should be responsible for the wrongful acts committed by the predecessor state? The situation does not seem to be covered by Guideline 11. No solution is provided. In contrast, under the Institute’s Resolution, the injured state would necessarily have to consent to any such annihilation of its right to reparation.Footnote 155
Fourth, it should be recalled that Article 15(3) of the Institute’s Resolution refers to two factors (‘organ’ and ‘direct link’) that are relevant to determine which of the successor states becomes bearer of the obligations to repair. These factors therefore play a major role. They are used to determine to which one of the successor states should the obligation to repair be transferred. Guideline 11 also refers to some factors. Thus, the second line of Guideline 11 indicates that the injured state and the ‘relevant successor State or States’ ‘should take into account any territorial link, any benefit derived, any equitable apportionment, and all other relevant circumstances’.Footnote 156 This is a non-exhaustive listFootnote 157 of factors that the injured state and the successor state(s) ‘may take into account in determining how best to address the injury’ suffered by the former.Footnote 158 These factors play a much more modest role. They are relevant to help the injured state to assess with whom it should enter negotiations to address the injury suffered. In other words, they ‘serve as a guide for the determination of which successor State or States are to be considered “relevant” for purposes of draft guideline 11’.Footnote 159 Only the ‘relevant’ successor state(s) (i.e., the one that has ‘a closer connection with the injury than others’Footnote 160 ) should be concerned with such negotiations.Footnote 161 At the end of the day, the importance of these factors has been significantly downgraded under Guideline 11 when compared to the previous draft article.
In sum, Guideline 11 is a much weaker clause than Article 15 of the Institute’s Resolution. This is obviously the result of some members’ strong opposition to the very idea of succession to obligations. I nevertheless believe that a more appropriate solution would have been to follow these two logical steps: (i) firmly affirm the principle of succession, i.e., that the obligation to repair ‘pass’ to the successor state(s), and then (ii) provide guidance as to which factors should be taken into account to determine which of the different successor states should be the bearer of this obligation after the date of succession. In contrast, Guideline 11 provides limited guidance to states on what to do beyond encouraging them to ‘agree on how to address the injury’. If they do not, a wrong will remain unpunished.
5. Conclusion
While the Draft Articles initially put forward by the Special Rapporteur followed most of the solutions adopted by the Institute’s Resolution, a major shift occurred when each provision was examined by the Drafting Committee. The source of this radical change can be traced back to the point of departure adopted by the Special Rapporteur when he started his work. He decided to exclude ‘both the (automatic) extinction of responsibility and the automatic transfer of responsibility in cases of succession of States’.Footnote 162 Most importantly, in the context of dissolution and unification, he noted that the consequences of wrongful acts ‘continue’ (they ‘do not disappear’Footnote 163 ) after the date of succession and that ‘the application of the general rule of non-succession to such cases would mean that no State incurs obligations arising from internationally wrongful acts’.Footnote 164 As mentioned above, he described this ‘solution’ as ‘hardly compatible with the objectives of international law, which include equitable and reasonable settlement of disputes’.Footnote 165 For that reason, he proposed that ‘the general rule of non-succession should be replaced rather by a presumption of succession in respect of obligations arising from State responsibility’.Footnote 166 This idea of a ‘presumption’ was reflected in the wording used in several draft articles, whereby the obligation to repair ‘pass’ to the successor state(s).Footnote 167 In contrast, the Guidelines provisionally adopted by the Drafting Committee in 2021 on dissolution and unification no longer contain any trace of this ‘presumption’, which was rejected by the majority of ILC members favouring instead a general rule of non-succession.
The theoretical shift adopted by the Drafting Committee had, in turn, a direct impact on the form that the ILC’s work would ultimately take. While the Special Rapporteur had all along favoured draft articles with commentaries,Footnote 168 he explained in 2022 that ‘the new language’ of some of the provisions which had been provisionally adopted by the Drafting Committee had ‘convinced him to propose a change of form’.Footnote 169 Thus, he considered that ‘draft guidelines’ now ‘seemed to better reflect the language of the bulk of the provisions and the views of most States and of most members of the Commission’.Footnote 170 In reality, the content of the provisions had been completely diluted of any ‘binding’ obligations and the language so much soften that what was left could no longer be considered ‘Articles’. It had become a list of general guiding principles that could possibly be useful for states when negotiating matters of succession to responsibility.Footnote 171 The difference between the two forms of outcomes could not have been better summarized by Chair Park of the Drafting Committee: ‘draft guidelines were intended to provide guidance to States while draft articles were cast as directions to States, often suitable for incorporation in a treaty’.Footnote 172
The content of each provision also radically changed. The Guidelines only go so far as to encourage the concerned parties to reach agreements on matters of succession to responsibility. But that possibility always exists anyway, with or without the Guidelines. Most importantly, the very ‘soft’ language used in the Guidelines does not impose any obligations on states to actually address the injury suffered. As such, the Guidelines do little to protect the interests of injured states. In my view, that should have been the goal of the whole exercise. This is indeed what was initially intended: ‘the specific rules and exceptions to be drafted in that regard had to be worded in such a way as to prevent unjust and inequitable results’.Footnote 173 Yet, the Guidelines leave wide open the possibility that a wrong remains unpunished. Such an outcome could hardly be considered just or equitable. From that perspective, the Guidelines seem like a missed opportunity.
At the end of the day, while the content of the final text of the Guidelines is in many respects disappointing, clearly the Special Rapporteur should not be blamed for this outcome. He has written five very well-researched reports, which are of the greatest importance to scholarship on state succession. He should be praised for the balanced and generally satisfying approach adopted in the Draft Articles attached to his Reports.Footnote 174 States’ strong reluctance to any departure from the ‘traditional’ rule of non-succession to state responsibility was simply insurmountable.
Finally, the outcome of the work (i.e., no articles, no guidelines) after more than five years of work is somewhat discouraging for anyone interested in state succession issues. Yet, in hindsight what happened is not entirely surprising. Already back in 2018, the Report to the ILC mentioned ‘the initial misgivings expressed by some members as to the suitability of the topic for codification or progressive development’.Footnote 175 It seems that these doubts never disappeared. In fact, many states had the same concerns. A good example is the UK’s position noting that the examples of state practice mentioned in the Special Rapporteur’s reports ‘must be viewed in its historical, political and cultural context’, adding that ‘rather than revealing any discernible trends of universal application, the practice summarized in the report tends to demonstrate the contrary’.Footnote 176 Ultimately, given that many states consider the question of state succession to responsibility to involve ‘policy – and, indeed, political – decisions which go to the heart of the identity of the States involved’,Footnote 177 any global codification effort was doomed to fail.
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