State Succession and EU Law between Inte
LL.M. in International and European Law
State Succession and EU Law:
between Internal Enlargement and Withdrawal
By Guillem Guimet
Academic Year 2013-2014
Supervisor
Dr Bernd Martenczuk
Readers
Dr Pierre Mathijsen Dr Youri Devuyst
Continuity ( ) is in itself an element of legal justice. Hersch Lauterpacht
The Development of International Law by the International Court
Abstract
The current developments taking place in Scotland, Catalonia and, to a lesser extent, Flanders, have led the legal doctrine to put the spotlight on one particularly contentious question: what would be the fate of newly created State s membership into the European Union and the status of EU law on those territories. While the origin of the topic is eminently political, there are deep legal implications both in terms of international as well as EU law. From the first s perspective, the notion of State succession seems to provide an accurate framework into which characterising the topic. From the second s viewpoint, neither specific EU Treaty provisions nor exact precedents can be fairly said to definitely solve the dilemma. Yet, it is under EU law that the question must be channelled. While some authors advocate for disrupting the link between the Union with potential nascent States, others promote different degrees of continued membership. Whatever the outcome, a suitable solution is of paramount importance in order to guarantee the survival of the European integration project.
Key Words: International Law, EU Law, Self-Determination, Secession, State succession, Accession,
Enlargement, Withdrawal, Citizenship, Article 49, Article 50, European Integration.
Introduction
In parallel with the several political reactions that have been triggered by the prospect of an eventual territorial reconfiguration within the EU s member States, a rich and profound legal debate likewise lies beneath. The fate of the European law with regard to what could be in the near future newly created States is one of its core aspects. As a matter of fact, the referenda that will take place in Scotland and in Catalonia this year, but also other potential scenarios that may arise, have confronted the European institutions with an unprecedented situation, namely State succession in the context of the European Union.
While this notion has been largely discussed and shaped in the international legal arena, it seems to have caught the Union off its guard. This leaves it ill-prepared to deal with an issue that presents deep legal complexities and that, if mismanaged, could destabilize the very foundations of the European integration process.
The aim of this study has been elucidating what are the main legal aspects of this fascinating and highly topical issue and what, from the authors perspective, would be the most suitable and satisfactory legal solution. On the one hand, from the public international law perspective, the abundant doctrine and State practice that has been developed over the years can help to discover some applicable interpretative parameters.
On the other hand, from the strict EU law point of view, some Treaty provisions, as well as some jurisprudence and general principles, reveal broad guidelines of what, in the absence of any explicit provision, should be regarded as the European law on State succession . These are the simple instruments available to assemble a legal puzzle that, as will be exposed, has not a unique solution.
From the methodological point of view, despite the heterogeneity of positions, the author has opted, as well as to expose all of the academic nuances and opinions in order to enrich the text, to critically engage with the topic and to give a deeper treatment to what is considered to be the most accurate and lawful perspective. In other words, it was clear that the nature of the subject would require exposing it in the form of an academic debate in which all positions, from the foundational principles on State succession, to the more recent declarations on the current cases in Europe, were represented. In order to achieve such objective, an abundant body of sources and legal documentation has been needed, as well as a contextualized interpretation of several Treaty provisions.
Being one of those who will be called to vote this year on the independence of Catalonia and, at the same time, a convinced Euro-enthusiast, has made of this subject an exceptionally motivating one. Besides, as a lawyer, the combination of international and EU law and the possibility to theorise about different outcomes have been nothing more but encouraging and stimulating challenges.
A Previous Stage: the Right to Self-Determination
Before analysing the particular question regarding the fate of European law in the event of regional secessionism within a EU member State, it is vital to first briefly examine whether there is, at least in some measure, enough evidence under international law that supports claims for independence. Otherwise, the subsequent question would be superfluous. If an eventual self- determination scenario were to be frozen without recognition, such as are the cases of South
Ossetia, Abkhazia or Transnistria 1 , then the question as what would happen with self- proclaimed independent entities in relation to the European Union would be purely rhetorical.
The most notable political developments that may lead to regional secessionism within European Union member States regions, namely Scotland, Catalonia and Flanders, and the latest developments in Montenegro, Kosovo, and recently, Crimea, have triggered all sorts of academic reinterpretations regarding the right to self-determination. In particular, these new considerations are related to the hypothetical situations of secession arising in the framework of the complex legal and political structure of the European Union. From this perspective, the first legal question to be elucidated is whether these regions would have any chance at all to grant the demands of a large part of their population for independence.
The Charter of the United Nations recognises the right to self-determination of peoples 2 in Articles 1, 55 and 73. Indeed, it is a legal figure that has been extensively established by the International Court of Justice s jurisprudence as an essential principle of contemporary
international law 3 . In 1995, in the Case Concerning East Timor, the International Court of Justice declared that the right to self-determination encapsulated a rule of customary international law binding in all States. Nevertheless, there is no unanimity as for the specific context in which self- determination can be applied.
On the one hand, some scholars argue that, even if this principle were to become well- recognized, since it was introduced in the very first article of the UN Charter, the political context this was drafted, i.e. the decolonization processes, should be taken into account in order to infer the scope and sense of a region s self-determination. It can be stated that this historical
or intentional interpretation is certainly consistent with the general practice of the UN 4 , but it is also true that it has been criticised by more than a few scholars 5 , arguing that such an
1 For a more comprehensive analysis regarding States with limited recognition, Tancredi A (2008). 2 Chapter I, Article 1, part 2 states that purpose of the UN Charter is: "To develop friendly relations among nations
based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace."
3 ICJ, Concerning East Timor (Portugal v Australia) (1995), Reports 90, 102. 4 Resolution 1514 (XV) Declaration on the Granting of Independence to Colonial Countries and Peoples , General Assembly, 14 December 1960. 5 Emerson R (1971).
appreciation would disregard or even delegitimize several prior and subsequent processes of independence that did not occur within the aforementioned circumstances 6 .
It is unquestionable that the notion of self-determination gained political momentum within the referred context, as a consequence of a previous trend 7 , which led States to explicitly recognise it. Nevertheless, arguing that this principle can only be applied in such situations would severely affect its scope and application, mainly because the particular decolonisation processes in question took place in a very precise and chronologically short period of the
history 8 . The fact that self-determination was included in other crucial instruments of the international legal system 9 , adopted long after the ratification of the UN Charter (1945), is also an indicator of the lack of necessary connection between self-determination and decolonisation.
On the other hand, some specialists 10 consider that the emphasis should be placed on the notion of people. According to this textual interpretation, the right to self-determination can only be held by this category of entities, regardless of the underlying rationale of the political claim. It is commonly accepted 11 12 that there are two objective criteria in order to determine what a people is. The first consists in the existence of common elements between individuals such as ethnicity, language, culture, religion and history. The second component of this conceptualisation is the integrity of the territory in question. This second element has been further jurisprudentially developed through the notion of uti possidetis iure. In addition, the
subjective aspect of the notion of people is easier to find, since any human group that perceives itself as such will be able to produce enough proof of its own self-consciousness as a people .
Finally, a third approach that we could qualify as a realistic interpretation, e.g. that detailed by Sterio 13 , considers that after all, what really matters is the favourable or unfavourable position adopted by the most powerful actors in the international arena, i.e. the political implications that self-determination could have for those countries in a given case. If these
6 Eg the Slovak Declaration of Independence adopted the 17 July 1992, approved as a consequence of a process not related to decolonisation, proclaims ( ) we declare the natural right of the Slovak nation for self-determination, as
embodied by all international agreements and treaties about the right of nations for self-determination ( ) , the German Unification Treaty, which took place in a process of State succession outside decolonisation, but also based on this principle, affirmed Resolved to achieve in free self-determination the unity of Germany in peace and freedom as an equal partner in the community of nations and the Estonian Declaration of Independence declares, The Estonian National Council, as the legal representative of our land and people, has, in unanimous agreement with Estonian democratic political parties and organizations, and by virtue of the right of self-determination of peoples, found it necessary to take the following decisive steps to shape the destiny of the Estonian land and people.
7 Eg Woodrow Wilson devoted a whole speech on self-determination the 11 February 1918, arguing that "National aspirations must be respected; people may now be dominated and governed only by their own consent. Self-
determination is not a mere phrase; it is an imperative principle of action." 8 Craven states it as follows: There was obviously a considerable degree of commonality amongst members of the
Commission and other commentators at the time that colonialism connoted a very specific experience discrete in both time and space. Craven M (2010), p 203.
9 Eg also in their firsts articles, both the International Covenant on Civil and Political Rights (1976) and the International Covenant on Economic, Social and Cultural Rights (1976).
10 Scharf M (2003). 11 Nanda Ved P (1981). 12 Brilmayer L (1991). 13 Sterio M (2010), p 140.
repercussions are identified as positive, then it is likely that the people seeking independence will garner its support and de facto will start acting as a consolidated State, even if not recognised as such by the entire international community. For instance, Kosovo s declaration of independence was considered by Germany to be in line with the right of people to self-
determination 14 . However, if the effects of such a political reconfiguration were perceived negatively, the right to self-determination per se would not be a sufficient basis to gain independence.
Coming back to the debate on whether the acceptance of self-determination provides inherently sufficient grounds to effectively secede, it must be pointed out that the first of the three analysed interpretations regarding self-determination has been the most successful, with
some exceptions and nuances. According to Roman 15 , for example, if each group within a State can claim the right to self-determination and succeed, self-destruction of virtually every State could result 16 . Thus, self-determination is not conceived as an absolute right, but as a right subject to the fulfilment of certain conditions.
Historically, as described, it has thus been generally accepted that only peoples suffering from colonial domination hold legitimacy to claim self-determination 17 . Nevertheless, the contemporary tendency is to accept a broader notion of self-determination, including two sub- tendencies. Firstly, it has become generally accepted for other non-colonial peoples to make use
of self-determination when political and civil rights have been denied or violated 18 . This approach has been reinforced by the opinions of the Arbitration Commission of the Peace Conference on Yugoslavia 19 and by the Supreme Court of Canada in its resolution regarding the case of Quebec 20 , which declares, a contrario sensu:
Quebec does not meet the threshold of a colonial people or an oppressed people, nor can it be suggested that Quebecers have been denied meaningful access to government to pursue their political, economic, cultural and social development.
14 ICJ (Kosovo case): public hearing transcripts containing the arguments made on Wednesday, Dec. 2, by the representatives of Albania, Saudi Arabia, Germany and Argentina.
15 Roman E (1999). 16 This theory can be challenged. On the one hand, the situation presented by Roman is fully hypothetical, because it
is not true that all States in the world suffer from internal self-determination movements; in fact this is a minority of States. On the other hand, there is nothing intrinsically negative or detrimental about the existence of several and small States instead of few and large ones; small countries are more likely to better provide services for its citizens and actually the most developed countries in the world are insignificant in terms of population and territory. Credit Suisse Research Institute, The Success of Small Countries, July 2014.
17 Eg in 1993, the U.N. World Conference on Human Rights adopted the Vienna Declaration and Programme of Action, A/CONF.157/24, 25 June 1993, that affirmed the right of self-determination of all peoples, taking into account the
particular situation of peoples under colonial or other forms of alien domination or foreign occupation ( ). 18 Ibid 10.
19 On 20 November 1991 Lord Carrington asked: "Does the Serbian population in Croatia and Bosnia and Herzegovina, as one of the constituent peoples of Yugoslavia, have the right to self-determination?" The commission
concluded on 11 January 1992 that "the Serbian population in Bosnia and Herzegovina and Croatia is entitled to all the rights concerned to minorities and ethnic groups (...)."
20 Supreme Court of Canada, judgment Section 53 of the Supreme Court Act, R.S.C., 1985, c. S-26; and in the matter of a Reference by the Governor in Council concerning certain questions relating to the secession of Quebec from Canada,
as set out in Order in Council P.C. 1996-1497, dated the 30th day of September, 1996.
Secondly, even in cases where no denial or violation of political or civil rights has taken place, such as the dissolution of Czechoslovakia, or even the Declaration of the Rights of the Peoples of Russia, on which the Finish independence declaration is based 21 , and which took place long before (1917) the crystallisation of self-determination in the UN Charter, a justification based on this right can be found. As a matter of fact, these cases show that self-determination is not necessarily linked with the idea of remedial secession .
In its Advisory Opinion regarding the unilateral declaration of independence of Kosovo, the ICJ declared there were radically different views regarding the right to self-determination in contexts other than those related to colonisation but avoided further developing the question 22 . In words of Borgen, rather than dismissing the idea of remedial secession outright, the Court
said it was highly contentious 23 .
Thus, the debates surrounding the scope of self-determination have certainly not reached any type of consensus. However, nowadays it seems already clear that the shapes and ways that self-determination has taken illustrates that it is not limited to decolonisation processes, which at its time indicates that the secessionist claims of a part of the Scottish, Catalan and the like regions population in Europe might well legally succeed.
21 Actually the Finish Parliament issued a provisional declaration of independence the same day this declaration was approved.
22 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, ICJ, Advisory Opinion (22 July 2010), para 56.
23 Borgen C (2010), p 1007.
First Part
The International Approach
The theorisation of a solid and universally applicable doctrine in relation to State succession presents essential complexities, such as the virtual inexistence of codified rules, the inconsistency of State practice and, from an academic perspective, its diverse methodological approaches. It seems clear that this is probably one of the most complex topics in the sphere of international law, due to its strong political implications. The German Bundesgerichtshof noted
that the problem of State succession is one of the most disputed areas of international law 24 . There are several reasons as to why the International Law Commission has not been able to create a successful and broadly accepted convention dealing with State succession, but the most notable explanation is that well-established States are not willing to happily accept ex ante a regulation which could jeopardize their territorial integrity. States tend to assume a rigid and firm position about this notion, so it is not surprising that so few ones have ratified the existing conventions.
In the section that follows, it is introduced the idea that, despite the apparent inconsistency, when both academic reflexions and State practice are considered, the most accepted rule governing State succession is the principle of continuity.
I. State Succession: Definition and Rationale
The doctrine of State succession can be conceptualised as the legal institution conceived to solve a number of legal vicissitudes arising in the event of substitution of a State by another, be it partially or in its totality. According to the Vienna Conventions on Succession of States in respect of Treaties (the Vienna Convention of 1978) and on Succession of States in respect of State Property, Archives, Debts (the Vienna Convention of 1983), succession of States means the replacement of one State by another in the responsibility for the international relations of
territory 25 . This circumstance can be the result of several political developments, namely secession,
annexation, unification, peaceful cession or dismemberment, among others. In spite of their heterogeneity, these situations possess one common feature: according to O Connell, one State
ceases to rule in a territory, while another takes its place 26 . This reality has inherent legal consequences.
24 Case Espionage Protection, No. 2 BGz 28/91, 94 ILR, pp 68, 77-8. 25 According to the Vienna conventions, predecessor State means the State which has been replaced by another
State on the; successor State means the State which has replaced another one. 26 O Conell D (1956), p 3.
As stated by Craven, the rationale of such legal institution [m]ight be said to be the minimisation of the effects of political changes 27 . In other words, international law has configured State succession as an instrument the purpose of which is reducing the harmful effects that the political events lying at its core might have. According to O Connell, the body of law which has been built up for the solution of the problems arising from transfer of territory
has for its object the minimizing of the effects of this change 28 .
State succession can actually be regarded as a legal instrument intended to honour the pre- existing international order by means of securing the continuity of certain legal relations . According to Lauterpacht, the doctrine of State succession aims at solving the legal gap caused
by events which threaten otherwise to destroy the continuity of the international legal order 29 . Even more explicit is the preamble to the Vienna Convention of 1983, when it recalls the urgent need for codification as a means for ensuring greater juridical security in international relations .
II. Normative and Doctrinal Aspects on State Succession
2.1. Two Perspectives on State Succession All the above being said, it is worth recalling that the construction of a unified and
consolidated notion of State succession has never been reached. Due to its fractioned and controversial nature, it can actually be argued that there is no such thing as a single doctrine of State succession, but doctrines. As a matter of fact, some scholars, the most prominent being Bedjaoui, have even wondered if there is such a thing as State succession in the first place. The very concept of succession points out that there is some sort of legal continuity that links the old political structure with the new one. By contrast, according to this position, the new entity would be born without any link to the legal relations affected by the pre-existing State. This conception is usually referred to as tabula rasa or clean slate. In light of this consideration, if Scotland, Flanders or Catalonia were to become independents from their respective States, they would have to start forging their own and autonomous legal rights and obligations, since the previous legal relations maintained by their mother States would be disconnected.
By contrast, the theory of universal succession, defended by O Connell, suggests that: Unless all States are able to place minimal reliance upon durable principles of mutual intercourse,
the common good, which alone gives normative value to human relationships, is apt to be defeated. There is, therefore, a sphere of rights and duties that exist, not because States have invented or even recognized them, but because they arise immediately from man s social nature. They find their concrete expression in the actual forms of inter-State relationships as they may from time to
27 Ibid 8, p 25. 28 Ibid 27, p 3. 29 Lauterpacht H ( 1927), p 129.
time be contrived, but because they are intrinsically antecedent to the State they constitute an objective limitation upon sovereignty. 30
Therefore, the idea of State succession is based upon a principle of minimal disturbance of existing legal situations 31 founded upon the doctrine of acquired rights. Later in his work, O Connell goes further and explicitly theorises about a presumption of continuity of legal relations in case of succession. O Connell is not the only scholar who develops this legal conception: Schahter invokes the need for security in expectations and contrary to this, the chaos that would involve an international legal system tempted to ignore the political and
economic consequences of abandoning legal guarantees 32 ; Jenks speaks about how continuity underpins participation in the international community 33 ; and Makonnen regards continuity as the means to minimize disruptions in international legal relations 34 . Thus, according to these views, entities emerging from processes of political change should necessarily continue rather than discard legal obligations assumed by their predecessor States. O Connell adamantly insists upon this idea:
[I]f successor States are to be released from all obligations relating to the interests created by the antecedent legal system, this can only be by virtue of the total evaporation of all law and all titles in the territory affected by change of sovereignty. It is not only the predecessor and successor States or private individuals which would be affected if such a philosophy were to prevail, but the whole community of nations [emphasis added], which has a vested interest in political, social and economic stability. 35
As was explained in the first part, it should be underlined that these foundational debates took place in the context of decolonisation processes. The dichotomy between scholars representatives of O Connell s ideas defending universal succession, on the one hand, and Bedjaoui and his followers rejecting the very idea of succession, on the other, shows an even deeper understanding of international relations and law. Their academic discussions took into account historical and philosophical elements. Bedjaoui, for instance, regarded the idea of State succession as a product of the old imperial order, as a way to keep connecting the metropolis with their former colonial possessions.
Thus, one fundamental aspect that should not be disregarded when examining this area of international law is that State succession borders the limits of the legal discipline. This is because the de facto fluctuations originating State succession are without exception highly contentious and political. It is not possible to detach the factual cause from the legal consequence. At the same time, it is inconceivable to analyse State succession in isolation from its political background. After all, as said above, State succession is the legal answer to a political problem. Citing Craven:
30 Ibid 27, p 119. 31 Ibid 27, p 120. 32 Schachter O (1993), pp 259-60. 33 Jenks C (1952), p 108. 34 Makonnen Y (1983), pp 137-9 35 O Connell D (1970), p 141.
State succession is obviously an issue which only irregularly comes to prominence in international law ( ). What is significant, however, is not so much the fact that the issue does not gain sustained or continuous attention, but rather that each moment of transition is also in some sense inaugural (marking the beginning of or end of a particular political era or constitutional order). That scholars, as a result, tend to speak about the law of State succession in terms of eras is thus to highlight ( ) the discrete, unique, or context-specific nature of the issues arising therein. 36
Taking into account this discerning statement, we may well consider that the cases of Scotland, Flanders and Catalonia, but also other scenarios that could take place in the foreseeable future in Europe, might respond to a profound dynamic of State reconfiguration in the European integration framework. This reality calls for the European Union to be prepared to provide an adequate legal response to this potential era of State succession.
There are two criteria that determine the features of this phenomenon. On the one hand, a geographical criterion: the conflict can be located, at least for the moment, in Scotland, Catalonia and, to a lesser extent, Flanders. On the other hand, there also exists a thematic criterion, namely, the specific aspects of State succession that would be affected in the case of these regions belonging to member States of the Union. This last criterion essentially consists of two sub-criteria: firstly, status EU law, and secondly, the terms of membership of nascent political entities into the European Union.
2.2. The Vienna Convention of 1978 and the Principle of Continuity The history of the Vienna Convention of 1978 is one of failure. According to Sinclair, the main
problem results from the fact that the drafters were too much concerned with past problems bound up with the process of decolonisation, and too little concerned with resent and future
problems 37 . Indeed, the academic debates originated in the context of the Vienna Convention of 1978 were not preceded by a consistent treaty accepted by a sufficient number of countries, and only few current EU member States have ratified it 38 . Even O Connell notes that among the diplomatic priorities of most governments, State succession is of a very law order [ ] altogether
unimportant and not worth expenditure of public funds 39 .
The Vienna Convention of 1978 prescribes a specific solution for the case at stake. In particular, Article 34 was specifically designed to deal with cases of separation of parts of a State. According to this provision, any treaty in force at the moment of the political change in respect of the predecessor State, i.e. Spain or the United Kingdom, shall remain applicable in respect of the newly created State, i.e. Catalonia or Scotland, respectively. This should not be the case if the States concerned agree otherwise or if the application of the treaty to the nascent State would be incompatible with the object and purpose of the treaty or would radically change the conditions for its operation . Thus, the principle of continuity seems to have been embraced by the Convention-makers.
36 Ibid 8, p 28. 37 Sinclair I (1978), p 149. 38 Cyprus, the Czech Republic, Estonia, Poland, Slovakia, Slovenia and Croatia. 39 O Connell D (1979), pp 726-7.
Despite the inapplicability of the Convention (neither Spain nor the United Kingdom have ratified it) and of any consuetudinary principle that may arguably encapsulate, the academic discussions taking place for its elaboration were extremely productive and they were the origin of what constitutes the modern approach to State succession. At the moment, some
international treaties provided specifically for succession of the new State, be it automatically 40 , through notification 41 , through the sponsoring of their predecessor State 42 or applying the
agreement de facto prior to becoming a fully recognised party 43 . On the basis of this inconsistent State practice, Waldock 44 establishes a distinction between
an obligation to be bound by the treaties applied in the territory of the nascent State and a right to regard itself as a contracting party. It is worth recalling that in the context of decolonisation, the accent was put on the burden that some treaties meant for some newly constituted States. In our case, by contrast, the EU treaties are not regarded as an obligation but rather as a right, this is, as something worth maintaining in force. Thus, the rule of continuity advocated by Waldock,
O Connell, La Forest 45 , Jenks 46 and the ILA, emphasized by the desirability of escaping a legal vacuum in the event of political alterations, should be regarded as a possible solution. The contrary view, according to Waldock:
Is too broad in that it suggests that, so far as concerns the new State, the prior treaties are wholly expunged and are without any relevance to its territory. The very fact that prior treaties are often continued or renewed indicated that the clean slate metaphor does not express the whole truth. 47
Furthermore, Waldock supports the idea first developed by Zemanek 48 according to which, new States have the right to become parties to pre-existing treaties independently of the consent of the other parties to the treaty and regardless of the specific terms of admission of the agreement. Waldock considers as irrelevant the actual participation of the nascent State as such in the agreement at stake. According to this view, what is really transcendent is the link
40 For instance, Art XI (6) of the Second International Tin Agreement reads: A country or territory, the separate participation of which has been declared under Article III or paragraph 2 of this Article by any Contracting
Government, shall when it becomes an independent State, e deemed to be a Contracting Government and the provisions of this Agreement shall apply to the Government of such State as if it were an original Contracting Government already participating in this Agreement .
41 Art 64(4) of the Coffee Agreement stated: When a territory to which this Agreement has been extended under the provisions of paragraph (1) of this Article subsequently attains its independence, the Government of the new State
may, within 90 days after the attainment of in dependence, declare by notification to the Secretary-General of the United Nations that it has assumed the rights and obligations of a Contracting Party to this Agreement. It shall, as from the date of such notification, become a Contracting Party to this Agreement.
42 Article XXVI, paragraph 5(c), of GATT provides: If any of the customs territories, in respect of which a contracting party has accepted this Agreement, possesses or acquires full autonomy in the conduct of its external commercial
relations and of the other matters provided for in this Agreement, such territory shall, upon sponsorship through a declaration by the responsible contracting party establishing the above-mentioned fact, be deemed to be a contracting party . Kunugi, State Succession in the Framework of the GATT.
43 This category was also practiced in the context of the GATT, by States such as Cyprus, Ivory Coast or Cameroon. 44 Waldock C (1972), p 19. 45 La Forest G, Towards a Reformulation of the Law of State Succession.
46 Jenks complained that the traditional view of the clean slate was indefensible in principle, unreasonable in practice, and inconsistent with the long-term development of International law and International organisations . Ibid
33, p 105. 47 Ibid 44.
48 Zemanek K (1997), p 232.
created between the convention and the territory. The right of participation is thus founded upon the conception that the actions taken by the previous State affect the new entity, and that the relations of this one with the agreement institute a legal nexus [emphasis added] of a certain degree between the treaty and the territory . The reception of Waldock s ideas is in
general extremely positive for its realistic approach 49 .
In the case of the territories where the EU treaties are applied, it is not less true that the legislative action of the EU institutions has profoundly imbibed the Catalan, Scottish and Flemish legislative life. There is consequently an unprecedented connection that should not be ignored: if Waldock is able to establish a link in the context of isolated multilateral agreements and the territories where they were applied, the bond between the Union treaties and its territories shall necessarily turn out to be extremely appealing. Would it be wise and realistic to treat these entities as completely isolated and dispensable pieces of the European Union s puzzle?
The fact remains that Catalonia, Flanders and Scotland are fully integrated into the policies and legislation promoted by the European institutions. For instance, in the case of the Trans- European Transport Network 50 , the Catalan cities of Barcelona and Tarragona are already involved in an infrastructure initiative whose approval took years and which is already being executed. According to this example, isolating Catalonia from the EU s framework would mean to redefine all sorts of legal imbrications that may well hinder legitimate expectations of third parties. Both O Connell and Jencks are concerned about underpinning the interests of the international community in the case of State succession. If they were able to perceive the big picture in cases far away from the profound integration process in which the European Union is immersed, capable itself of creating a singular legal order, something unprecedented in international relations, it would be illogical not to come to the same conclusion.
Therefore, the formulation on rules of State succession shall be regarded as a remedy to the unpredictable and anarchistic 51 change that political events which are its cause may otherwise generate. Not to follow a principle of continuity, in other words, would mean to engulf the international community in an unstable and chaotic order that would hinder efforts
to foster respect for the rule of law 52 , both from the private and the public perspectives. O Connell based his defence of legal continuity on the idea that law is not a discipline separate from society. The practical desire for continuity at a very basic level, from a social and economic perspective, must necessarily be translated to the international legal order.
In the case of an EU region becoming independent, since it would be expedient to maintain the free movement of goods in order not to deeply obstruct economic interests (even more in the case of wealthy regions), it would be at its turn indispensable to accept the continuity of the
49 Eg Eustathiades, Yrbk ILC, 1970, I, p. 136, para 142.; Ruda, Yrbk ILC, 1970, I, p150, para 140; Sette Câmara, Yrbk ILC, 1970, I, p 151, para 24; Rosenne, Yrbk ILC, 1970, I, p 154, para 58; Yassen, Yrbk ILC, 1970, I, p 161, para 53; El-
rian, Yrbk, ILC, 1972, I, p 73, para 3. 50 http://ec.europa.eu/transport/themes/infrastructure/index_en.htm
51 Ibid 33, p 259. 52 Ibid, p 264.
legal basis upon which such fundamental freedom relies 53 . Whatever political or national passions may demand to disrupt this logical assumption would probably not be sufficiently strong as to affect it. An exception to the rule of continuity, according to O Connell would be a victory of passion over reason. Vagts seems to come to the same conclusion basing his approach
upon the notion of stability of expectations 54 . In addition, as we have seen, Schachter defends the idea of continuity as a triumph of international law itself over the political impulses that may affect States. Zemanek summarises the idea of the fall of the clean slate theory as follows:
The so-called clean slate rule, which proclaimed that a new State entered the international system without any international rights and obligations of its predecessor devolving upon it, and which was fashionable in certain circles during the decolonisation period, has apparently lost its attraction. 55
Finally, in its Final Report on State succession, the ILA considered that, La règle générale est donc la négociation des traités au cas par cas, sur le fondement du principe de
continuité. L importance de la mise en évidence du principe de continuité comme norme de référence ne doit pas être masquée par l existence de ces négociations : c est en effet la règle à laquelle il faut faire référence, pour dire le droit, en cas de désaccord des parties sur le devenir d un traité de l État prédécesseur. 56
As will be further developed in the second part, similar ideas have been expressed in articles explicitly dealing with the Scottish, Catalan and Flemish cases:
Because of the international interdependence in a globalised world, it is noted that the international community is moving towards a presumption of continuity as regards multilateral obligations, also for the secessionist newly independent State. 57
Therefore, it seems clear that the debates on the occasion of the Vienna Convention of 1978 lead to embrace the idea of continuity, rather than the notion of tabula rasa. In addition, as will
be explained in the next section, in spite of a consolidated law on State succession, the principle of continuity has been its substitute to solve practical legal questions arising in the event of political reconfigurations.
53 The perception of the practical problems related to State succession has largely been described by several scholars. Eg, Du jour au lendemain les habitants seront immergés dans un ordre juridique nouveau ; non seulement ils seront
soumis pour l avenir aux règles de l État dont ils sont désormais les sujets, mais on peut même se demander si sous réserve des règles de droit international privé qui en garatiraient le maintien, les situations juridiques individuelles qu ils ont constituées dans le passé sur la base de règles désormais privées de validité ne sont pas remises en cause par la disparition de leur fondement légal . Droit international public, J Combacau S Sur (2012), p 434 ; The principle of discontinuance, however, may considerably affect interests of third contracting parties , Legal aspects of the Unification of the Two German States, K Hailbronner (1991), EJIL.
54 Vagts D (1992-3), p 275. 55 Ibid 48, pp 84-5. 56 ILA Committee on Aspects of the Law of State Succession, Rapport Final sur la Succession en Matiere de Traites, ILA
Report, New Delhi Conference 2002, p 22. 57 Van der Loo G and Chamon M, The Temporal Paradox of Regions in the EU Seeking Independence: Contraction and
Fragmentation versus Widening and Deepening?
2.3. Towards a Pragmatic Law of State Succession
Ultimately, what is suggested by O Connell, Waldock or Jencks, is nothing less than the abandonment of the rigid categories that had dominated the debate since the elaboration of the Vienna Convention of 1978. Schachter argues that formal categories are not as important as
considering the practical consequences of political change in particular context [sic] 58 . The concept underlying this statement is that an ideal of pragmatism should govern State
succession so an efficient legal solution for the factual changes that lie at its core can be provided. In accordance with Schachter, a general presumption of pragmatic continuity can be inferred from analysing the dismemberment of the Soviet Union and the Socialist Federal Republic of Yugoslavia, and the development of their subsequent emergent States. For Schachter, the very nature of multilateral and law-making treaties calls for a pragmatic solution [emphasis added]:
In this predictably pluralist world of kaleidoscopic change, stability in expectations will matter; it becomes more important than would be the case in a more settled period. The responses to the fragmentation of the Eastern European regimes revealed the concerns over the disruption of treaty relations . At the same time, the diversity and the particularities call for avoiding rigidities. 59
In his influential article, State Succession: the Once and Future Law, Schachter places the emphasis on the idea that being pragmatic should be understood in terms of problem-solving , which, in turn, means to confront different outcomes in function of the specific resolution applied. For instance, what would be the factual consequences of abruptly interrupting the application of the EU treaties to Scotland? And contrarily, what would be the factual consequences of continuing to apply them?
The idea that formal categories should be less relevant when it comes to State succession is founded upon the assumption that it is actually extremely difficult and even arbitrary to attribute a certain category to a given case. Hypothetically speaking, in the case of Catalonia, in principle we should refer to the case as one of secession from Spain, but what would happen if some months later also the Basque Country were to declare its own independence? And what if
a couple of years after so would Galicia? Would then the process be regarded as one of disintegration or dismemberment instead of one of secession? In which precise moment should this re-evaluation take place? Would it be truly relevant to strictly categorise each of these political entities as the predecessor and the successor States? Should it not be more expeditious to focus on the current consequences of the process instead of focusing in the process itself? 60
58 Ibid 32, p 240. 59 Ibid, p 259.
60 How should [the ILC] distinguish, if at all, between cases of the dissolution of unions of States, and cases of secession in which the predecessor State continues to exist? For all its indecisions in these points, the Commission
felt compelled to make a series of distinctions premised upon the idea of personality , and in face of the criticism of people such as O Connell . Ibid 8, p 216.
There are clear cases that demonstrate that the attribution of rigid categories to certain political developments has been ancillary in the practice of State succession. On the one hand, the German Unification Treaty of 1990 assumed that what was meant by unification was not really the fusion of two independent States on an equal footing, but actually the absorption of
the GDR into the FRG 61 . Thus, the FRG continued its existence but in enlarged form; in other words, there was no creation of a new State, but only the end of another. Article 11 of the Unification Treaty does not contain a rigid solution on the continuity or discontinuity of the treaties of the GDR but provided for a flexible system which fits into described the pattern of international practice. The treaties of the FRG would continue in force albeit extended to the territory of the former GDR. As for the treaties of the latter, Germany entered discussions with other contracting parties before settling their continuity, adjustment or termination. This was probably the most reasonable solution, since the continuity of Germany as a member State of
the EU was barely questioned 62 . The meaning of unification in this case, in consequence, is not strict.
Contrary to this is the experience of the Yemen Unification, in which we can find an example of perfect unification. According to the first Article of the Agreement of 22 April 1990, concluded between the Yemen Arab Republic and the People s Democratic Republic of Yemen,
All Treaties and agreements concluded between either the Yemen Arab Republic and the People s Democratic Republic of Yemen and other States and international organisations in accordance with international law which are in force on 22 May 1990 will remain in effect . In this case, again, for practical reasons, there was little sense that anyone regarded this solution
to be problematic 63 . Even the ILA considered this solution as satisfactory, given the inability of the drafters of the Vienna Convention of 1978 to include an adequate definition of
incorporation and unification in its Article 31 64 .
In the context of the Baltic Republics, once more, the determination of a specific category, which pivots between the illegitimate use of force by the Soviet Union and the subsequent independence of the Latvia, Lithuania and Estonia, the principle of continuity was apparently broken. As a matter of fact, all three republics declared their freedom from all obligations that
may have been assumed by the Soviet institutions on their behalf 65 . In principle, this would be regarded as a perfect example of another classical notion related with State succession, the
61 On October 3, 1990, the German Democratic Republic, a member State of the United Nations, ceased to exist and its territory became part of the Federal Republic of Germany. The five States formed in the German Democratic
Republic, according to the Statute of July 22, 1990, Brandemburg, Mecklenburg-Vorpommern, Sachsen, Sachsen- Anhalt, and Thüringen, became Länder of the Federal Republic of Germany. On the same date, the territory of East Berlin became part of the Land Berlin which had been a State in the Federal Republic of Germany since 1949 , though with a special status . Frowein J (1991), p 1.
62 The EC acknowledged to the GATT that ( ) The territory of the Federal Republic of Germany, a member State of the European Communities, has been extended and, as a consequence, the territory to which the treaties establishing