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Hubert Beemelmans, State Succession in International
Law: Remarks on Recent Theory and State Praxis, 15 B.U.
Int'l L. J. 71 (1997)
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STATE SUCCESSION IN INTERNATIONAL LAW:
REMARKS ON RECENT THEORY AND
STATE PRAXIS
Hubert Beemelmans*
TABLE OF CoNTTs
I. INTRODUCrION ............................................ 72
A. Attempts to Codify or Legislate the Law of State
Succession ............................................. 73
B. Legal Doctrine ........................................ 74
H. STATE SUCCESSION ........................................ 75
A. What is State Succession? .............................. 75
B. Date of State Succession ............................... 78
I. STATE SUCCESSION AND MEMBERSHIP IN INTERNATIONAL
ORGANIZATIONS .......................................... 79
A. Russia and the Soviet Union ........................... 80
B. Yugoslavia ............................................ 82
C. Membership in InternationalOrganizationsand
Multilateral Treaties: The ILO Case .................... 82
D. Membership in InternationalOrganizationsand Rights
and Debts: The IMFIWorld Bank Case ................ 83
IV. STATE SUCCESSION TO TREATIES .......................... 84
A. State Succession to Multilateral Treaties ................ 85
1. "Closed" Treaties ................................. 85
2. "Open" Treaties ................................... 87
3. Role of the Depositary in State Succession ........ 88
B. State Succession to Bilateral Treaties ................... 92
1. Case-by-Case Negotiations ........................ 93
2. General Declaratory Agreements ................. 94
3. The Pragmatic Approach .......................... 96
4. The Tabula Rasa Doctrine ......................... 96
C. The Unique Case of the Reunification of Germany ..... 98
1. The Nature of the German Case of State
Succession ......................................... 98
2. Treaties of the Federal Republic of Germany ...... 99
Ambassador to the Republic of Madagascar. Dr. Jur., Head of the Treaty

Division of the Federal Foreign Office, Bonn, from 1992-1995. The author is writing
in his individual capacity. This Article does not represent the views of the German
Government.
72 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 15:71
3. Multilateral GDR Treaties ........................ 100

4. Treatment of Bilateral GDR Treaties before
Reunification ...................................... 101
5. Bilateral GDR Treaties after Reunification ........ 102
V. SUCCESSION TO STATE DEBT AND STATE PROPERTY:
NEGOTIATED SETTLEMENTS ............................... 108
A. The Reunification of Germany......................... 109
B. Czechoslovakia ........................................ 110
C. The Soviet Union...................................... III
1. The Memorandum of Understanding of October
28, 1991 ........................................... ill
2. '[he Treaty of Minsk of December 4, 1991 ......... Il1
3. he "Zero Option Agreements"................... 113
D. Yugoslavia ............................................ 113
VI. SUCCESSION TO STATE DEBT AND STATE PROPERTY:
SITUATION IN THE ABSENCE OF A NEGOTIATED
SETTLEivENT .............................................. 115
VII. STATE SUCCESSION TO BOUNDARIES AND TERRITORIAL
REGIM ES .................................................. 118
A. The Principleof the Inviolability of Boundaries........ 118
B. State Succession and Boundaries and Territorial
Regimes ............................................... 118
C. Boundaries with Third States and between Successor
States.................................................. 120
VIII. STATE SUCCESSION AND ITS IMPACT ON THE NATIONALITY
OF NATURAL AND LEGAL PERSONS ....................... 121
A. Dissolution of Federations:The Case of the CSFR, the
USSR and the SFRY .................................. 121
B. The Reunification of Germany ......................... 122
IX. OVERAL:L CONCLUSIONS ................................... 122
I. INTRODUCTION
State succession, a rather rare phenomenon in former times, now
occurs frequently. In fact, since World War II, State succession has
become increasingly important as it affects more States and more legal
relationships than ever before.'
Approximately 100 new States emerged with the end of decolonization.
Recently, Western and Eastern European geography has changed dra-
1 The author has written two other articles on the same subject. See Hubert
Beemelmans, Die Staatennachfolge in Staatsvermgen in Drittstaaten,
Auslandsschulden, gebietsbezogene rechtliche Regelungen und Staatsangehdrigkeit-
eine Problemskizze, 41 OSTEUROPA-REcHT 73 (1995) [hereinafter Beemelmans I];
Hubert Beemelmans, Die Staatennachfolge in vdlkerrechtliche Vertrige-
Bemerkungen zur neueren Staatenpraxis, 40 OsTEuRoPA-RcH-rr 339 (1994)
[hereinafter Beemelmans II].
1997] STATE SUCCESSION IN INTERNATIONAL LAW
matically. Germany reunified, while the Soviet Union, Yugoslavia and

Czechoslovakia dissolved. What were previously five States now repre-
sent twenty-three. Most importantly, these recent changes affected more
legal relationships than the earlier decolonization process. These newly-
formed European States are more integrated into the political, economic
and legal global framework and are of greater importance therefore, than
were the former dependent territories that became new States.2 This
Article explores whether this new wave of State succession cases has led
or should lead to a reappraisal of the law of State succession. 3
A. Attempts to Codify or Legislate the Law of State Succession

The International Law Commission (ILC) deals with State succession
under four categorical headings:
1) Treaties: the Vienna Convention on Succession of States in Respect of
4
Treaties (Vienna I);
2) State property, State debt and State archives: the Vienna Convention
on Succession of States in Respect of State Property, Archives and Debts
(Vienna II);'
3) Membership to international Organizations: the ILC Rapporteur con-
cluded that the subject matter was not appropriate for codification. The
2 D.P. O'Connell, the leading scholar on State succession, examined 1748 cases of
treaty succession between the years 1648 and 1967. See D.P. O'Connell, Reflections on
the State Succession Convention, 39 ZAORV 725 (1979). O'Connell noted that in 1979
there were "about a thousand multilateral conventions, of which about 300 could be
regarded as organically essential to the community's functioning." L at 731.
Whereas in 1919 there were only 17 general multilateral conventions and those
conventions were not heritable since they provided for membership in international
Organizations. Fifteen other conventions focused on the law of war. Id. In contrast,
by the time it merged into the Federal Republic of Germany, the German Democratic
Republic (GDR) had concluded between 3000 and 10,000 bilateral treaties and was a
party to some 662 multilateral treaties. See D. PAPENFuB, DIE BEHANDLuN ,G
DER VOLKERRECHTLICHEN VERTRAGE DER DDR IM ZUGE DER HERSTELLUNG
DER EiNHsrr DurscHLANDS-EiN BErrRAG ZUR STAATENNACHFOLGE IN
VOLKERRECiTLICi-E VERTRAGE 66 (forthcoming 1997) [hereinafter PAPENFUB I]; D.
PapenfuB, Succession aux trait s de la RDA 41 ANNUAiRE FRANqAIs DE DROIT
INTERNATiONAL 207 (1995) [hereinafter PapenfuB ]2]; see also discussion infra Part
IV.C.
3 For the history of State succession, especially since World War II, the questions
arising therefrom, and suggestions for solutions, see Detlev Vagts, State Succession:
The Codifiers View, 33 VA. J. INT'L L. 275 (1993). Vagts thinks that such a reappraisal
is necessary. Id. at 294.
4 Vienna Convention on Succession of States in Respect of Treaties, Aug. 23, 1978,
U.N. Doc. A/CONF.80/31 (1978) [hereinafter Vienna I].
r Vienna Convention on Succession of States in Respect of State Property,
Archives and Debts, Apr. 8, 1983, U.N. Doc. A/CONF.117/14 (1983) [hereinafter
Vienna II].
Rapporteur recommended a report to provide illustrations for resolving

different categories of problems-illustrations which could have a unify-
ing effect on the practice of Organizations;6 and
4) State succession and its impact on the nationality of natural and legal
persons: the Rapporteur also failed to find any prospects for codification
and recommended an ILC report or a United Nations General Assembly
draft declaration setting minimum standards for the automatic acquisition
of nationality. These minimum standards would serve as guidelines for
State legislation concerned with State succession.7
Neither of the two conventions has entered into force although each
requires but fifteen ratifications or accessions for entry into force.' This
failure and the more modest approaches in the fields of membership to
international Organizations and State succession and its impact on the
nationality of natural and legal persons are a rather meager result of
forty-six years of ILC efforts. It must be remembered, however, that the
ILC always considered the complete range of questions dealing with
State succession and that the more limited scope of the conventions was
deliberately fixed in order to keep some hope for consensus.
B. Legal Doctrine
The ILC's failed efforts to codify or legislate a doctrine for State suc-
cession reflects the state of legal doctrine as supported by precedents in
State praxis and opinions of learned authors.9 State practice and legal
theory regarding succession yield separate approaches dealing with the
legal consequences of such succession:
1) the continuity of treaties, claims, debts, etc.; 2) the discontinuity "clean
slate" or tabula rasa; 3) a casuistic distinction according to the type of
State succession or to the type of legal relationship concerned; and 4) a
case-by-case settlement by mutual agreement between the successor State
6 Vaclav Mikulka, State Succession and its Impact on the Nationality of Natural and
Legal Persons and State Succession in Respect of Membership to International
Organizations, in Outlines Prepared by Members of the Commission on Selected
Topics of InternationalLaw, U.N. GAOR Int'l Law Comm'n, 45th Sess., at 26, 39,
U.N. Doc. A/CN.4/454 (1993).
7 Id. at 33.
8 Ethiopia, Iraq, Slovakia and Yugoslavia ratified Vienna I; while Dominica, Egypt,
Estonia, Morocco, Seychelles, Tunisia and Ukraine have acceded. Bosnia and
Herzegovina, Croatia and Slovenia have succeeded. No States have ratified Vienna II
and only Croatia, Estonia, Georgia and Ukraine have acceded.
9 See Report of the InternationalLaw Commission to the General Assembly, 39
U.N. GAOR Supp. (No. 10) at 1, U.N. Doc. A/36/10 (1981) [hereinafter Report of the
ILC]; Report of the Commission to the GeneralAssembly, U.N. Doc. A/9610/Rev.1
(1974), reprinted in [1974] II Y.B. Int'l L. Comm'n 157, U.N. Doc. A/CN.4/
SER.A.1974/Add.1 (Part One); see also Richard J. Graving, Status of the New York
Arbitration Convention: Some Gaps in Coverage but New Acceptances Confirm its
Vitality, 10 FoRmoN INvEsTM-NT L. 1 (1995).
and other States concerned. The fourth option includes the application of
the rebus sic stantibus principle although the widely-accepted Vienna
Convention on the Law of Treaties only allows the principle to be applied
within an existing treaty relationship.1" The principle's invocation pre-
supposes agreement on the treaty's continuity. Some authors, however,
use the concept of changed circumstances as an argument for opting for
continuity or discontinuity. 1
This Article will argue that in spite of a failure to codify State succes-
sion matters, a lack of consensus among learned authors, and clear ten-
dencies in older precedents, there seems to be an emerging consensus in
recent practice suggesting that State succession should not normally lead
to a disruption of legal relationships at all levels. Further, since the inter-
national community has attempted to establish a worldwide rule of law
wherever useful and possible, these international rules as applied to
States and individuals should not be interrupted because a State dis-
solves. Neither should there be periods where the rules of international
law would cease to be applicable; nor should there be periods of uncer-
tainty about the applicability of such international norms. This Article
explores these issues of State succession in the context of German reunifi-
cation and the dissolution of the Soviet Union, Czechoslovakia, and
Yugoslavia.
H. STATE SUCCESSION
A. What is State Succession?

Vienna I and II state that succession is "the replacement of one State
by another in the responsibility for the international relations of a terri-
tory."' 2 This definition excludes mere changes of government like those
revolutionary transformations of a State brought about by the introduc-
tion of socialism or by its abolition.
But what is a State? The current modern definition, as defined by
Opinion No. 1 of the Badinter Commission, asks for three elements: "[A]
community which consists of a territory and a population subject to an
organized political authority; that such a State is characterized sover-
eignty."'' This definition carefully avoids the word nation. But what
10 Vienna Convention on the Law of Treaties, May 23, 1969, art. 62, 1155 U.N.T.S.
331, 347 [hereinafter Law of Treaties].
11 See Graving, supra note 9, at 48-49; Stefan Oeter, German Reunification and
State Successio 51 ZAORV 349, 359 (1991); see also PAPENFUB I, supra note 2, at
277; PapenfuC , supra note 2, at 235.
12 Vienna I, supra note 4, art. 2(1)(b) at 3; Vienna II, supranote 5, art. 2(1)(a), at 3.
Both Vienna I and II exclude cases of State succession that have been brought about
contrary to international law. Vienna I, supranote 4, art. 6, at 6; Vienna II, supra note
5, art. 3, at 4.
13 Conference on Yugoslavia Arbitration Commission: Opinions on Questions
Arising from the Dissolution of Yugoslavia, Jan. 11 & July 4, 1992, 31 I.L.M. 1488,
implications would this definition have in the case of State succession for
multinational States such as the Holy Roman Empire, the Hapsburg
Monarchy, the Turkish Empire, the Soviet Union, Yugoslavia, Czechoslo-
vakia, the Russian Federation or Nigeria? For example, the division of
Germany was justified by certain German Democratic Republic (GDR)
ideologists advocating the concept of a "socialist German nation." These
thinkers openly admitted that if the GDR abandoned socialism, no rea-
son for the GDR's status as a sovereign State would exist. In the Federal
Republic of Germany, many discussed "constitutional patriotism"
(Verfassungspatriotismus) because nationalism and patriotism had been
discredited by the nationalistic excesses of the national socialist regime.
This Article contends that these discussions perhaps offered an unavowed
justification of the German division based upon the "nation of the 1949
Bonn Fundamental Law" as opposed to the "socialist nation."
The Vienna Conventions' definition avoids these tricky questions in the
same way that all invocations of the principle of "self-determination"
avoid saying to whom the right is granted. The definition of State succes-
sion limits itself to a symptom or to the effect relevant for international
law in the succession of responsibility for a predecessor State's interna-
tional relations. Yet this symptom of responsibility for international rela-
tions is the result of a social, political, and historical process with
consequences in the fields of national constitutional, administrative, and
civil law. And there the question concerning the process of State succes-
sion frequently becomes unavoidable, especially when it is necessary to
determine the date on which State succession has taken place. In
addressing the issue of when a succession has occurred, the Vienna Con-
ventions simply state: "'date of the succession of States' means the date
upon which the successor State replaced the predecessor State in the
responsibility for the international relations of the territory to which the
succession of States relates."' The nature of State succession must be
considered when a State claims to be identical with a former State. The
1495 [hereinafter Badinter Commission I]. The Badinter Commission, the

"Commission d'Arbitrage de la Conference de la Paix en Yougoslavie," was created
by the Extraordinary Ministerial Meeting of the European Political Cooperation in
Brussels on August 27, 1991. See it; see also International Conference on the Former
Yugoslavia Documentation on the Arbitration under the UN/EC (Geneva)
Conference: Terms of Reference, Reconstitution of the Arbitration Commission, and
Rules of Procedure, Apr. 26, 1993, 32 I.L.M. 1572 (1993). Fifteen opinions are
currently reproduced. Badinter Commission I, supra; cf. RESTATEMENT (THIRD) OF
FOREIGN RELATIONS LAW OF THE UNITED STATES § 201 (1986) ("Under
international law, a state is an entity that has a defined territory and a permanent
population, under the control of its own government, and that engages in, or has
capacity to engage in, formal relations with other such entities.").
14 Vienna I, supta note 4, art. 2(1)(e), at 3; Vienna I, supra note 5, art. 2(1)(d), at
definition of the Vienna Conventions correctly reflects the general con-5

viction that a State identical with another one cannot be its successor.'
Thus the reunification of Germany did not affect the legal position of
the Federal Republic of Germany since it remained identical with itself
after the incorporation of the new Linder emerging from the former
GDR. Because the State authority was the same as before and the State's
territory was merely enlarged, the "moving frontier rule" applies under
the law of succession. 16 Furthermore, even the population of the
enlarged Federal Republic was identical. The GDR underwent a peace-
ful revolution when demonstrators changed their slogans from "We are
the people" (i.e., the sovereign, above the State organs) to "We are one
people." Despite the incorporation of the GDR into the Federal Repub-
lic of Germany, there was of course State succession as to the GDR since
the GDR had actually and legally existed as a State entity as defined by
Vienna I and II.
In comparison, the claim of the Federal Republic of Yugoslavia (Serbia
and Montenegro), created on April 27, 1992, to be identical with the for-
mer Socialist Federal Republic of Yugoslavia (SFRY) could only be
upheld if there still was a Yugoslav nation. However, this condition was
manifestly not present since four of the six federated States declared
themselves independent after having been authorized to do so by plebi-
scites. Additionally, the organized political authority of the SFRY did
not survive the disruption of the Federation.
Who decides whether State succession has taken place? Obviously the
international community can influence this determination. Third State
decisions are not, however, determinative, creating a problem similar to
that of recognition of States: As third States cannot recognize an entity
as a sovereign State that does not want to be one, likewise third States
cannot impose their view in cases of State succession. Thus the claim of
Estonia, Latvia and Lithuania not to be successor States to the Soviet
Union has been generally accepted in State practice. Although third
States cannot force sovereignty upon an unwilling entity, third States can
withhold recognition, and thus undermine a State's claim to succession.
For example, the international community disregarded Yugoslavia's (Ser-
16 D.P. O'CoNNELL, THE LAW OF STATE SUCCESSION 1-2 (1956).

16 Article 29 of the Vienna Convention on the Law of Treaties provides: "Unless a
different intention appears from the treaty or is otherwise established, a treaty is
binding upon each party in respect of its entire territory." Law of Treaties, supranote
10, art. 29, 1155 U.N.T.S. at 339. There is no intertemporary restriction to this clause.
On the other hand, the Convention also states: "The provisions of the present
Convention shall not prejudge any question that may arise in regard to a treaty from a
succession of States .... " Id. art. 73, at 350. The moving frontier rule, which, it must
be admitted, is not very clearly expressed in Article 29 but which can be considered a
generally accepted rule of customary international law is in fact, if anything, a rule on
State succession.
bia and Montenegro) claim to be identical with the SFRY since recogni-
tion would not have been compatible with the recognition of Slovenia,
Croatia, Bosnia and Herzegovina, and Macedonia as sovereign States
with internationally recognized frontiers. It is precisely these frontiers
that were questioned by the Federal Republic of Yugoslavia through its
claim to be identical to the former SFRY. 17
B. Date of State Succession

The case of Yugoslavia illustrates most clearly the nature of State suc-
cession as a historical, political, and legal process.' 8 Thus the Badinter
Commission (Commission) stated in its first opinion of November 25,
1991, that the SFRY was in the process of dissolution.' 9 The Commission
cited the referenda in Slovenia, Croatia, and Macedonia, the declarations
of independence of Croatia and Slovenia, a sovereignty resolution
adopted by the parliament of Bosnia and Herzegovina, and the armed
conflicts between the different elements of the Federation in support of
its conclusion.20 These facts evidenced the Federation's delinquency, fall-
ing apart, and the disfunction of the Federation's organs.
In its opinions Nos. 8 and 10 of July 4, 1992, the Commission stated that
the process of dissolution had come to an end without giving a date for
the disappearance of the SFRY.21 The reasons for this disappearance
were, according to the Commission, that the federal organs no longer
existed and that the territory and people of the SFRY were completely
under the authority of the new States 2 - a clear reference to the three
elements of Statehood! The Commission also noted: "The FRY is a' new
state which cannot be considered the sole successor to the SFRY."
In contrast, the Badinter Commission in its Opinion No. 2 of January
11, 1992, denied the Serbian population in Croatia and Bosnia and Herze-
govina the status of a nation and hence, the right to independence from
Croatia and Bosnia and Herzegovina. They were granted only "all the
rights accorded to minorities and ethnic groups under international
17 On December 16, 1991, the member States of the European Communities have,
in the framework of their political cooperation, adopted a "Declaration on Yugoslavia
and on the Guidelines on the Recognition of New States" demanding the respect of
the inviolability of boundaries. European Community: Declaration on Yugoslavia
and on the Guidelines on the Recognition of New States, Dec. 16, 1991, 31 I.L.M.
1485 [hereinafter Guidelines on the Recognition of New States].
18 Beemelmans 1, supra note 1, at 90.
19 Badinter Commission I, Opinion No. 1, supra note 13, 31 I.L.M. 1494, 1496.
20 Id
21 Badinter Commission I, Opinion No. 8, supra note 13, 31 I.L.M. 1521, 1523;
Badinter Commission I, Opinion No. 10, supra note 13, 31 I.L.M. 1525, 1526.
2 Badinter Commission I, Opinion No. 8, supra note 13, 31 I.L.M. at 1523;
Badinter Commission I, Opinion No. 10, supra note 13, 31 I.L.M. at 1526.
2 Badinter Commission I, Opinion No. 10, supra note 13, 31 I.L.M. at 1526.
law." The Opinion also stated: "The Republics must afford the mem-
bers of those minorities and ethnic groups all the human rights and fun-
damental freedoms recognized in international law, '25
including, where
appropriate, the right to choose their nationality.
Accordingly, the definition of State succession in the two Vienna Con-
ventions is useful. State succession is the moment when a successor State
appears on the international stage not the moment when the predecessor
State disappears.' The latter moment is often impossible to establish. 7
The international community cannot treat a State as identical with its
predecessor if the new State wants recognition as a successor State. The
international community can, however, keep a State bound to the obliga-
tions of a predecessor State even if the State denies its status as a succes-
sor State, thus trying to sever burdensome relations.
III. STATE SUCCESSION AND MEMBERSHIP IN INTERNATIONAL

ORGANIZATIONS
Vienna I deals with State succession and membership in international

Organizations. Article 4 provides:
The present Convention applies to the effects of a succession of
States in respect of:
(a) any treaty which is the constituent instrument of an international
organization without prejudice to the rules concerning acquisition of
membership and without prejudice to any other relevant rules of the
organization;
(b) any treaty adopted within an international organization without
prejudice to any relevant rules of the organization.28
Thus the convention rules are only applicable if the Organization's rules
do not otherwise dispose. They are lex specialis.
The ILC, in fact, never really studied the matter of State succession to
international Organizations. According to the Rapporteur, there has
been only a memorandum submitted by the Secretariat to the Commis-
sion in 1962 that was limited to succession and membership in the United
Nations.29 It focused on the admission of Pakistan to the United Nations
in 1947, of Mali and Senegal in 1960, and on the formation of the United
Arab Republic in 1958 and its dissolution in 1961. The Rapporteur cor-
rectly remarked that "in the case of unification of Tanzania [sic] and Zan-
zibar, the two Yemens or Germany these problems [derived from the
2 Id at 1499.
26 For the various dates in the SFRY case, see infra note 70 and accompanying text.
27 See the case of the Soviet Union, infra note 70 and accompanying text.
2 Vienna I, supra note 4, art. 4, at 5.
2 Mikulka, supra note 6, at 34.
predecessor State's membership in international Organizations] were

nearly unnoticed by the international community." 0
Generally, the Rapporteur highlighted the following problems con-
cerning the relationship between the States confronted by State succes-
sion and international Organizations: a) the membership of the successor
State in the Organization; b) the impact of the territorial changes on a
subsisting membership; c) the partition between successors, or the prede-
cessor and the successor(s) of the obligations or rights resulting from the
membership of the predecessor State; d) the status of military and other
observers of a predecessor State; and e) the validity of certificates,
licenses and other documents issued to the nationals of a predecessor
State on the basis of its membership in the Organization. 1
According to the Rapporteur, the prevailing opinion held that mem-
bership in an international Organization was a personal right to which
succession was not possible. However, the Rapporteur noted that inter-
national Organizations "with less rigid requirements, like the Bern or
Paris unions, or the Hague Conference on Private International Law"
provided an exemption from the general rule.32 This exemption is made
because the character of a normal multilateral treaty prevails within these
Organizations. The Rapporteur saw no prospect for the codification of
membership rules for international Organizations.
A clear practice among Organizations and States has appeared despite
previous failures to establish a general theory of State succession in this
particular field. Successor States must apply for membership in interna-
tional Organizations, just as any other State that is not a founding mem-
ber of the Organization. Thus, there is no privilege for successor States.
In other words, no State may succeed in memberships to an international
Organization apart from the aforementioned exceptions. Nevertheless, a
few particular cases must be addressed.
A. Russia and the Soviet Union

Unlike the Soviet Union, the Ukraine and Belarus, Russia was not a
founding member of the United Nations. Yet with the support of the
signatory States of the Alma Ata Declaration of December 21, 1991,11 the
Russian Federation declared in a letter from President Yeltsin to the
United Nations Secretary General dated December 24, 1991, that "the
membership of the Union of Soviet Socialist Republics in the United
Nations, including the Security Council and all other organs and organi-
zations of the United Nations system, is being continued by the Russian
30 Id.
31 Id at 34-35.
32 Id at 35.
3 Eleven of the original 15 Soviet Republics, Georgia, and the three Baltic States
(which the United Nations had already admitted as members) did not participate.
Federation (RSFSR) with the support of the countries of the Common-

wealth of Independent States."'
This declaration was circulated to all States and international Organiza-
tions with which the Soviet Union had maintained treaty relations or in
which it had been a member. No State opposed these changes and Russia
moved into the position of the Soviet Union in the depositary lists of
multilateral treaties as well as in the assembly rooms of the Organiza-
35
tions. Eventually only the flags and the delegation plates changed.
Does this simple positional change signify that both States are identi-
cal? Russia never officially stated this proposition, nor would the socio-
political history support this identification. The Soviet Union was based
on a public international law treaty of union and on a common constitu-
tion. Both were abrogated. Russia created a new State organization
(including a ministry of foreign affairs) to parallel and eventually to
replace the structures of the Soviet Union as far as Russia was concerned.
A number of plebiscites in the Socialist Soviet Republics showed that a
Soviet Nation or population no longer existed, but rather fifteen separate
nations that had heretofore formed the Soviet Union. 6 Consequently,
there was no room for Soviet nationality. Soviet citizens did not automat-
ically become Russian citizens. Previously, every Soviet citizen held dual
citizenship: one for the Soviet Union and one for the Soviet republics.
Today, these citizens must choose which of the new "Independent States"
they want to belong to when they renew their passports.
Importantly, the three Baltic States of Estonia, Latvia and Lithuania
strongly denied being successor States of the Soviet Union. They con-
sider themselves as having been under Soviet occupation, their accession
to the Soviet Union in June 1940 having been procured by force and thus
being void.3 7 On September 17, 1991, the U.N. admitted them as mem-
34 Agreements Establishing the Commonwealth of Independent States, Dec. 8,

1991, 31 I.L.M. 138, 138.
35 See Beemelmans II, supra note 1, at 357; Yehuda Z. Blum, Russia Takes Over the
Soviet Union's Seat at the United Nations, 3 EUt. J. INT'L L. 354 (1992); Igor' Ivanovic
Lukasuk, Rutland als Rechtsnachfolger in v6lkerrechtliche Vertrage der UdSSR, 39
OsTEmuoPA-RncHT 235 (1993).
36 See Theodor Schweisfurth, Ausgewahite Fragen der Staatensukzession im
Kontext der Aufl6sung der UdSSR, 32 ARcmv FOR VOLKERRECiT 99 (1994);
Theodor Schweisfurth, Vom Einheitsstaat (UdSSR) zum Staatenbund (GUS), 52
ZAORV 541 (1992); see also Beemelmans I, supra note 1, at 78.
37 UNITED NATIONS, MULTILATERAL TREATIES DEPOSITED WITH THE
SECRETARY-GENERAL: STATUS AS AT 31 DECEMBER 1995, at 9-10, U.N. Doc. ST/
LEG/SER.E/14 (1995). See Beemelmans II, supra note 1, at 357; cf. Lukasuk, supra
note 35, at 237 (arguing that the Baltic States had left the Soviet Union before its
dissolution, therefore, the Soviet treaties should continue in force for them as they
were with the other former Soviet Republics).
bers. s They considered themselves bound only by the treaties they con-
cluded before June 1940, and of course, by those concluded after recovery
of their freedom.
B. Yugoslavia
In the Russian case a pragmatic solution was universally adopted con-
cerning its membership in the United Nations and other international
Organizations. The question of recognition as a State was never asked;
conversely all other successor States arising out of the Soviet Union usu-
ally were formally recognized in the absence of opposition. The Federal
Republic of Yugoslavia's claim that it was identical with the former SFRY
was expressly rejected by the U.N. Security Council and by the General
Assembly. Both U.N. organs declared that the SFRY had ceased to
exist. 9 The General Assembly precluded the Federal Republic of Yugo-
slavia (Serbia and Montenegro) from participating in the work of the
General Assembly and its subordinate bodies, but invited the Federal
Republic of Yugoslavia (Serbia and Montenegro) to apply for U.N. mem-
bership.' The Yugoslav delegation, however, continued to maintain its
offices in the United Nations, fly its flag, and attend meetings different
than those mentioned above.
C. Membership in InternationalOrganizations and Multilateral
Treaties: The ILO Case
Membership in an international Organization creates certain rights,
such as the right to vote, to be represented in the Organization's organs,
and to have a quota for one's nationals in the Organization's staff; mem-
bership also entails certain obligations such as financial contributions and
the payment of the arrears of the predecessor State.
International Organizations often determine the extent of these rights
and obligations according to the importance of each member State. It is
therefore inevitable to recalculate them when one member State dis-
solves into several new States, some of whom are perhaps unwilling to
join the Organization or are not eligible for geographical reasons. Thus
recent general practice has been to prohibit automatic succession into
international Organizations. Rather, successor States need to apply for
38 The United Nations admitted the former Soviet Republics excluding the
founding members of Belarus and the Ukraine on March 2, 1992 and Georgia on July
31, 1992. The United Nations also excluded Russia, which was not a founding
member, but which had moved into the position of the Soviet Union. See supra note
34 and accompanying text.
39 S.C. Res. 777, U.N. SCOR, 3116th mtg. at 1, U.N. Doc. S/RES777 (1992); G.A.
Res. 47/1, U.N. GAOR, 47th Sess., Agenda Item 8, at 1, U.N. Doc. A[RES/47/1
(1992).
40 G.A. Res. 47/1., supra note 39, at 1 (stating the Federal Republic of Yugoslavia
"shall not participate in the work of the General Assembly").
membership and to undergo the statutory admission procedure. Admis-

sion becomes effective ex nunc with the conclusion of this procedure.
Although this process seems cumbersome, it is an inevitable consequence
of the necessities inherent in the life of such Organizations.
In two cases, however, membership in an international Organization
has been granted retroactively. One such Organization was the Interna-
tional Labor Organisation (ILO). The ILO has been prolific in the elabo-
ration of more than 160 multilateral conventions on labor conditions."'
Membership in those conventions is reserved to member States of the
ILO itself.' Consequently, the ILO secretariat normally extends admis-
sion to such treaties ex nunc if the successor State becomes a member of
the ILO and if it declares its willingness to succeed its predecessor to the
treaty. Thus, the ILO status list formally (although not legally) provides
that a convention is not enforceable against a successor State between the
dates of the State succession and the admission of the successor State into
the ILO. To prevent this lacuna, Croatia, Slovakia and the Czech
Republic successfully petitioned to be admitted into the ILO retroac-
tively to the date of their independence."
D. Membership in InternationalOrganizationsand Rights and Debts:

The IMF/World Bank Case
A State adhering to the Bretton Woods Agreement must not only

become a member of the Organization and accept its rules and the obli-
gations, but must also subscribe to a quota and add to it from time to
time. Member States can also obtain credits from the International Mon-
etary Fund (IMF). Thus, when a State succession case takes place, the
quota and the debts of the predecessor State remain open and should be
distributed among the successor States if they are eligible to become
members of the Fund agreement. Under these circumstances, retroactive
accession is highly desirable because it clarifies who is liable for what part
of the predecessor State's rights and debts and clarifies principal and
interest from specific dates.
Accordingly, the Th4F granted retroactive admission to the Czech and
Slovak Republics, Slovenia, Croatia and Macedonia ("conditional succes-
41 For a list of conventions, see 1 INTERNATIONAL LABOUR ORGANISATION,

INTERNATIONAL LABOUR CONVENTION AND RECOMMENDATIONS 1919-1991 (1992)
and 2 INTERNATIONAL LABOUR ORGANISATION, INTERNATIONAL LABOUR
CONVENTION AND RECOMMENDATIONS 1919-1992 (1992).
42 See the Constitution of the ILO, International Labour Organisation, Oct. 9,
1946, Annex, ch. 1, art. 1(2), 62 Stat. 3485, 3492, 15 U.N.T.S. 35, 42.
43Beemelmans II, supra note 1, at 371 n.98.
" Id at 371 n.99.
sion").4 5 Nevertheless, it denied membership to the Federal Republic of

Yugoslavia, which the Organization did not consider eligible under the
Bretton Woods rules.4
Membership in the International Bank for Reconstruction and Devel-
opment (IRDB, World Bank) is only open for members of the IMF.
Here, the same arguments lead to the desirability of retroactive "condi-
tional (i.e., negotiated) succession."
IV. STATE SUCCESSION TO TREATIES
For the purpose of this Article, multilateral treaties, as compared to

bilateral treaties, present the advantage of greater transparency through
depositary notifications. The depositary notifications reflect the attitude
of all the parties to each treaty.
The Vienna Convention on State Succession in general favors con-
tinuity of treaties. It establishes, however, a privilege in favor of what it
calls "newly independent States," that is, States born out of decoloniza-
tion.47 These newly independent States are offered a "clean slate." In
other words, the States are free to decide to which multilateral or bilat-
eral treaties of the predecessor State they want to adhere.48 This "clean
slate" privilege contrasts with the aspirations set forth in the eloquent
language of the preamble of Vienna I:
Emphasizing that the consistent observance of general multilateral
treaties which deal with the codification and progressive develop-
ment of international law and those the object and purpose of which
are of interest to the international community as a whole is of special
importance for the strengthening of peace and international cooper-
ation, Having in mind the principles of international law embodied in
the Charter of the United Nations, such as the principles of equal
rights and self-determination of peoples, of the sovereign equality
and independence of all States, of non-interference in the domestic
affairs of States, of the prohibition of the threat or use of force, and
45 Paul R. Williams, State Succession and the InternationalFinancial Institutions:

PoliticalCriteriav. Protectionof OutstandingFinancialObligations,43 If"L & COMP.
L.Q. 776, 802, 806 (1994).
46 According to Williams, the debts of the SFRY and the CSFR to the IMF and the
World Bank amounted to US$3.5 billion. Id. at 778. In the SFRY case, the IMF fixed
the following quotas for the shares to be taken: Slovenia, 16.39%, Croatia, 28.49%,
Bosnia and Herzegovina, 13.20%, Macedonia, 5.40% and Serbia/Montenegro,
36.52%. Id. at 802 n.168 (referencing IMF, Socialist FederalRepublic of Yugoslavia
Cessation of Membership, Allocation of Assets and Liabilities in the Fund, and
Succession to Membership in the Fund 1-2 (Dec. 7, 1992)).
47 Vienna I, supra note 4, arts. 16-30, at 12-22.
48 IdL art. 16, at 12.
of universal respect for, and observance of, human rights and funda-
mental freedom for all.49
In addition to these principles, it is important to note the numerous
achievements within the international community to codify civil and trade
law, maritime law, air transport law, and the law of warfare and so forth.
The primary effect of these conventions was to benefit individuals and
mankind as a whole. Since the focus of these conventions was only sec-
ondarily to benefit sovereign states, the fact that they should not be auto-
matically binding upon "newly independent States" was the main reason
why Vienna I was a failure.
A. State Succession to Multilateral Treaties
1. "Closed" Treaties
As previously discussed, multilateral treaties establishing an interna-

tional Organization are not automatically open to successor States.
Vienna I has also made a distinction with regard to the succession of
States to "open" and "closed" treaties.5" "Open" treaties invite all or
certain non-signatory States to accede through the deposit of a declara-
tion of accession with the depositary State or Organization. "Closed"
treaties require the consent of "all the parties" to a treaty to approve a
certain State's accession to the treaty.51
In some cases, State succession to a multilateral treaty would substan-
tially alter the character of the settlement the parties wished to achieve.
For example, the Treaty on the Non-Proliferation of Nuclear Weapons of
July 1, 1968, had given a privileged position to certain "nuclear weapon
States" as defined in Article IX, Paragraph 3.52 Other States actually
possessing or later acquiring nuclear weapons would not become parties
to the treaty. The dissolution of the Soviet Union left not only Russia in
possession of nuclear weapons, but also the Ukraine, Belarus and
Kazakhstan. It was believed, however, that the number of "haves"
should not be enlarged, and Ukraine, Belarus and Kazakhstan were suc-
cessfully invited to accede to the treaty as non-nuclear weapon States,
whereas other "have not" successor States to the Soviet Union were
allowed to succeed to the treaty.
Even more illustrative of the problems of succession to certain
"closed" treaties is the case of the Treaty on Conventional Armed Forces
49 k pmbl., at 1.
50 Id art. 10(1), at 8.
51 Id; cf.Law of Treaties, supranote 10, art. 15, 1155 U.N.T.S. at 336.
52 Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, art. IX(3), 21
U.S.T. 483, 492-93, 729 U.N.T.S. 161, 174.
in Europe of November 19, 1990.11 This treaty had been signed by the
Soviet Union, but not ratified by it, before its dissolution, whereas a
number of other States, among them Germany, had already ratified the
treaty prior to the dissolution of the Soviet Union. A somewhat unortho-
dox solution to the question of succession was found through the adop-
tion of a Final Document of the Extraordinary Conference of the States
Parties to the Treaty on Conventional Armed Forces in Europe held at
Oslo on June 5, 1992.11 The agreement replaced the Soviet Union with
eight successor States and distributed its quotas among them.55 The
agreement also excluded the territories of the three Baltic States from the
treaty's area of application.56 Another document signed at Helsinki on
July 10, 1992, 57 stipulated the provisional application of the treaty begin-
ning on July 17, 1992.
The dissolution of the Czech and Slovak Federal Republic (CSFR) on
December 31, :1992, was similarly treated in the Document of the States
Parties to the Treaty on Conventional Armed Forces in Europe signed in
Vienna on February 5, 1993.58 This treaty divided the former CSFR's
arms and dislocation limits and active and passive inspection quotas
between the Czech and Slovak Republics which replaced the CSFR in the
list of States Parties to the treaty.
Two aspects of these cases should be emphasized. First, the eight suc-
cessor States of the Soviet Union succeeded into a signatory State posi-
tion, whereas the Czech and Slovak Republics succeeded to a State Party
position. Vienna I devotes much care to this distinction.59 Second, the
Final Document of the Extraordinary Conference of the States Parties to
the Treaty on Conventional Armed Forces in Europe and the other docu-
ments were in fact separate treaties between States that entered into
force upon signature. Their scope was to amend the Treaty on Conven-
53 Treaty on Conventional Armed Forces in Europe, Nov. 19, 1990, 30 I.L.M. 1

[hereinafter CFE Treaty]. For further discussion, see Beemelmans II, supra note 1, at
362.
54 SchluBdokument der AuBerordentlichen Konferenz der Vertragsstaaten des
Vertrags tiber konventionelle Streitkrafte in Europa [Final Document of the
Extraordinary Conference of the States Parties to the Treaty on Conventional Armed
Forces in Europe], (BGBI. 1992 II S.1037).
)5 Id. at 1039.
56 Id at 1040.
57 Conference on Security and Co-operation in Europe: Declaration and Decisions
from Helsinki Summit, July 10, 1992, 31 I.L.M. 1385.
58 Dokument der Vertragsstaaten des Vertrags fiber konventionelle Streitkrfte in
Europa [Document of the States Parties to the Treaty on Conventional Armed Forces
in Europe], (BGB'I. 1994 II S.407) [hereinafter Document of the States Parties to the
CFE Treaty].
59 Vienna I, supra note 4, arts. 17, 18, 19, 31, 32, 33, 35, 36, 37, at 12, 13, 14, 23, 24,
25, 27, 28.
tional Armed Forces in Europe of November 19, 1990.60 This treaty con-
tained clear provisions concerning amendments in Articles XX through
XXII of the treaty. 6 ' The provisions required ratification "by all States
Parties listed in the Preamble" whether adopted by a conference of the
States Parties or merely through a written procedure. 62 The treaty's
amending documents were unanimously approved by the signatory States
and the successor States to the original signatory States, which were in
the first case signatory States and successor States to a signatory State. In
the second case, Parties and successor States to a Party
The bypass of the clear prescription of Articles XX through XXII of
the treaty can and must be legally justified by the principle of State suc-
cession. The Soviet case was a case of negotiated, conditional succession,
limited to those States of the Soviet Union whose territories lay within
the treaty's original area of application. The States Parties to the docu-
ments implicitly recognized that the Baltic States were not successor
States of the Soviet Union.
The advantage and justification of this procedure of amending a treaty
through "documents" where State succession was not even mentioned,
lies in the fact that it avoided a renegotiation of the treaty. This process,
however, created a strange result. The carefully established balance of
power between the North Atlantic Treaty Organization (NATO) and the
Warsaw Pact was maintained in spite of the fact that, between the negoti-
ations' commencement on January 10, 1989, its provisional application
beginning July 17, 1992, and the treaty's entry into force on November 9,
1992, the Warsaw Pact had dissolved. Thus, in the event of an armed
conflict, it was unlikely that the forces of the former satellite States of the
Soviet Union or even of its eight successor States would constitute a
joined force. Unlike the Soviet Union succession, the German issues as
to reunification had occurred before the signature of the treaty. There-
fore, the quotas for Germany were duly calculated in the context of
"western" resources.
2. "Open" Treaties
"Open" treaties are treaties where the negotiating States have agreed
that all States or certain States might accede to the treaty.63 State succes-
sion is nearly universally accepted with respect to such treaties, especially
by the parties to the treaties of the "U.N. family," if the successor State
declares its desire to succeed to the treaty in question. There are "fami-
lies" of treaties - those initiated by the League of Nations and the
United Nations and deposited with the United Nations Secretary General
60 Document of the States Parties to the CFE Treaty, supranote 58.

61 Id.
62 IL
63 Law of Treaties, supra note 10, art. 15, at 1155 U.N.T.S. at 336.
(the U.N. Family), and those initiated within the ILO, IMCO, ICAO, the
Hague Conference and so forth.
3. Role of the Depositary in State Succession
Transparency of multilateral treaties results from the fact that the nego-
tiating States usually designate "one or more States, an international
organization or the chief administrative officer of the organization" as
depositary of the treaty. The depositary then administers the treaty, cir-
culates all relevant information, and publishes the "status list."' A great
many treaties are deposited with the Secretary General of the U.N. or
with a specialized agency. In the same way as accession to an "open"
treaty is usually expressed through the deposit of an instrument of acces-
sion with the depositary65 and accession becomes effective upon the
depositary's receipt of this instrument66 if the treaty does not provide
otherwise, similarly in modem practice, declarations of succession are
notified to the depositary and then circulated among treaty members.
In the case of notifications, not instruments, of succession, the U.N.
Secretary General has developed a clear practice of communicating a
State's succession according to the following model: "On [date] the notifi-
cation of succe;sion by the Government of [successor State] to the afore-
mentioned Convention was deposited with the Secretary General, with
effect from [date], the date on which [successor State] assumed responsi-
bility for its international relations."67 The date of succession is rarely, if
ever, identical to the date on which the successor State becomes a mem-
ber of the United Nations. Additionally, there is normally no State suc-
cession in membership in international Organizations. Thus for the
SFRY successor States, the U.N. Secretary General indicated the follow-
ing dates of succession to the United Nations: Slovenia, June 25, 1991;
Macedonia, September 17, 1991; Croatia, October 8, 1991; and Bosnia
and Herzegovina, March 6, 1992.68 However, Slovenia, Croatia and Bos-
nia and Herzegovina were admitted to the United Nations on May 22,
1992;69 and Macedonia was admitted on April 8, 1993.70 In contrast, the
arts. 76-80, at 350-52.

SId.
65 Id. art. 16(b), at 336.
66 Id. art. 78(b), at 351.
67 See Beemelmans II, supra note 1, at 370.
68 Letter Dated 1 April 1996 from the Representatives of Bosnia and Herzegovina,
Croatia, Slovenia and the Former Yugoslav Republic of Macedonia to the United
Nations Addressed to the Secretary-General,U.N. SCOR 50th Sess., Agenda Item 19,
U.N. Doe. A/50/910 (1996).
69 See G.A. Res. 46/236, U.N. GAOR, 46th Sess., Supp. No. 49A, at 5, U.N. Doc.
AI46f49IAdd.1 (1991-92); G.A. Res. 46/238, U.N. GAOR, 46th Sess., Supp. No. 49A,
at 5, U.N. Doc. A'461491Add.1 (1991-92); G.A. Res. 46/237, U.N. GAOR, 46th Sess.,
Supp. No. 49A, at 5, U.N. Doc. A/46/49/Add.1 (1991-92).
70 In Opinion Number 11, the Badinter Commission provided different dates for
State succession: Slovenia, October 8, 1991; Macedonia, November 17, 1991; and the
Federal Republic of Yugoslavia (Serbia and Montenegro) has not

requested United Nations membership as its claim that it is identical with
the SFRY has not been accepted, and it has not given notifications of
succession to each treaty.
The U.N. Secretary General, consistent with his neutral attitude in such
cases, maintains in his status lists all the notifications made prior to State
succession, such as the date of entry into force of a treaty for the Soviet
Union, Yugoslavia, Czechoslovakia or the German Democratic Republic,
but with footnotes referring to the respective date of State succession.
This practice illustrates the treaty's continual validity for the territories
involved. It also supports the conclusion that the treaty remains in force
for successor States that have not yet notified the depositary of their
succession.
The marked difference between accession and succession in U.N. prac-
tice indicates that a State succession's legal effects are ipso lure. This con-
clusion is evidenced by the retroactivity of State succession to the date of
assuming "responsibility for its international relations" and the U.N. Sec-
retary General's communications that quote the definition of State suc-
cession in the two Vienna Conventions. The 71notifications by the
successor States can therefore only be declaratory.
Are we then witness to a new rule of customary international law
establishing the continuity of open multilateral treaties? This Article
contends that we are. It could be argued that succession to a treaty would
only take place if the successor State notified the other treaty parties
through the depositary of its intention to continue to be bound by the
Federal Republic of Yugoslavia (Serbia and Montenegro), April 27, 1992. Badinter
Commission, Opinion No. 11, International Conference on the Former Yugoslavia
Documentation on the Arbitration Commission under the UN/EC (Geneva)
Conference: Advisory Opinions Nos. 11-15 of the Arbitration Commission, July 16-
Aug. 13, 1993, 32 I.L.M. 1586, 1587, 1588 [hereinafter Badinter Commission II].
Likewise, various dates are provided for the succession of the successor States of the
former Soviet Union. Most successor States adopted December 21, 1991, as the date
of succession. See Alma Ata Declaration, Dec. 21, 1991, 31 I.L.M. 148, 149.
Turkmenistan, however, gives its succession date as the date of the ratification of the
Protocol of the Alma Ata Declaration, namely December 26, 1991, and the Ukraine
chose September 12, 1991. See Beemelmans II, supra note 1, at 357 n.54.
71 For the practice of other depositaries, see Beemelmans II, supra note 1, at 370-
71. There are cases of non-retroactive declarations of succession. Thus the Ukraine
notified the Secretary General on January 3, 1994, that it considered itself bound as
one of the successor States of the Soviet Union to the International Convention
Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, Nov.
29, 1969, 26 U.S.T. 765, TIAS No. 8068. The Ukraine considered itself bound only
from December 17, 1993. Retroactivity to the date on which the Ukraine assumed
responsibility for its international relations would have made no sense in this case as
the Ukraine had to prepare itself also to assume the responsibility flowing from this
particular convention.
treaty. Succession to a treaty would then depend exclusively on the free-

will of the successor State. There are no known cases in U.N. practice or
in the practice of other depositaries, except the Council of Europe, of
other "open" treaty Parties rejecting a notification of succession. There
are also no known cases of States Parties to a treaty, other than the suc-
cessor State, notifying the depositary that they consider the successor
State bound to the treaty by virtue of State succession. Such a privilege
or option, as Vienna I expressly grants to "newly independent States,"72
to decide unilaterally on their succession to bilateral and multilateral
treaties "undernunes mutuality of consent by giving States a unilateral
right to bind other States."'7 But notifications of succession often serve a
useful purpose. In addition to clarifying the position of the successor
State concerning the rules of customary international law on State succes-
sion, they confirm or withdraw declarations and reservations made by the
predecessor State, and indicate the competent authorities of the successor
State for the treaty's implementation. Succession is retroactive and takes
place ipso jure; accession is a voluntary act becoming effective upon noti-
fication to the depositary, or after a lapse of time established in the treaty
itself and beginning to run from the date of notification. Since the rule of
customary international law as to the continuity of treaties in cases of
State succession is still emerging, some of the successor States of the
Soviet Union apparently have doubts about it. Besides there is fre-
quently a technical problem: if they decided to accept the principle of
State succession to all the treaties of the defunct Soviet Union, they did
not know what this decision meant. They did not have lists of those trea-
ties, let alone their texts in Russian or even less in their own language. It
is therefore understandable that their newly created Ministries of Foreign
Affairs often address these questions case by case, and that they prefer
feeling bound by a treaty ex nunc. This does not prevent the other States
Parties to a mutilateral treaty from considering them bound to the treaty
by virtue of State succession and from the date on which they assumed
the responsibility for their international relations.
The most striking examples in favor of the doctrine of continuity are
the treaties on warfare and human rights. Should the question of whether
they continue in force for a successor State be left to the discretion of
successor States or their treaty partners?
The Council of Europe is the only exception to the rule and practice of
depositary strict neutrality established by the Vienna Convention on the
Law of Treaties.7 4 Every notification of succession, even to clearly
"open" treaties, is subjected to deliberation and decision by its Council of
Ministers.75 The notification is either temporarily rejected or interpreted
72 Vienna I, supra note 4, arts. 17(1), 24(1), at 12, 17.

73 O'Connell, supra note 2, at 733.
74 Law of Treaties, supra note 10, art. 16(b), 1155 U.N.T.S. at 336.
75 See Beemelnians II, supra note 1, at 371.
as a declaration of accession effective either from the notification date or

after the expiration of the delay prescribed in the treaty for an
accession.76
The Council of Europe's position is controversial within the Council
itself. The Austrian delegation resolutely defended the tabula rasa doc-
trine77 as it traditionally does in its bilateral relationships. Austria, how-
ever, has never protested against notifications of succession circulated by
other depositaries and the Council of Europe's communications regularly
state that the rule of law as to State succession is not yet defined: "with-
out prejudice to the general questions of State succession."'78
Additionally, to the author's knowledge no State has ever notified a
depositary that it did not desire to succeed to a treaty. Some notifications
of succession arrive rather late and yet take effect - no, are considered
declaratory and effective ipso jure retroactively. Some States have
enacted legislation submitting treaty succession issues to a decision of
their parliament, 79 or admit succession only to treaties that are not incon-
sistent with their constitutions.8" Foremost, accession would take place ex
nunc instead of succession ex tunc with the consequence of a legal void
between the date of State succession and of accession to the treaty. It is
this legal void that must be avoided.
Under the tabula rasa approach, Austria may eliminate the Soviet
Union as a party to the "Staatsvertrag" of 1955, or Italy may renegotiate
the Italian-Yugoslav Treaty (the Osimo Treaty) with Croatia and Slove-
nia. For example, simply striking Yugoslavia from status lists as the
Council of Europe does, gives the incorrect impression that the Conven-
tions of October 3, 1985 and May 6, 1969 on the Protection of the Archi-
tectural and the Archeological Heritage of Europe were not binding on
the successor States of the SFRY. 81 These conventions would then only
become applicable in a zone of open warfare when the SFRY's successor
States had acceded to these conventions. This approach also implies that
76 Id.
7 See id.
at 372; see also Helmut Tichy, Two Recent Cases of State Succession - An
Austrian Perspective, 44 AusmTAN J. PuB. & INT'L L. 117, 124 (1992); Vagts, supra
note 3, at 279.
79 In some cases it has been thought necessary to seek approval of parliament for
the lists of treaties considered remaining in force. See id This is a question of
constitutional law of the respective States and not a question of international law. If
the doctrine of continuity ipso jure according to customary international law is being
adhered to, this issue of domestic constitutional law should not be raised. The rule
that domestic law may not be invoked against a treaty applies irrespective of the
category - simple or constitutional law - or the date of entry into force of the
domestic law. See Law of Treaties, supra note 10, art. 27, at 1155 U.N.T.S. at 339.
81 Convention for the Protection of the Architectural Heritage of Europe, Oct. 3,
1985, 788 U.N.T.S. 227.
former Yugoslavian citizens abroad are not entitled to the benefits of

numerous other conventions, such as the recognition of diplomas. Ulti-
mately, this approach is incompatible with the original parties' intentions
for those conventions, aiming at the protection of individuals, premises
and so forth.
A reservation must be made to the aforementioned discussion of mem-
bership in international Organizations in Part III. Although it appears to
be generally accepted that a successor State cannot simply succeed into
an international Organization's membership, such as the United Nations,
the State should nevertheless be considered to be bound by the general
principles established in the Charter by virtue of succession. The Charter
and many similar treaties establishing international Organizations, such
as the Chicago Convention of December 7, 1944,82 which created the
International Civil Aviation Organization, contain general rules which
should be observed by non-member States as well, and of course even
more so by successor States. This seems to be the meaning of Article 4 of
Vienna 1.83 Article 4 indicates that there is State succession to treaties
that create international Organizations. Although the Organization's
membership rules are lex specialisto the law of State succession, all other
treaty rules establishing an international Organization not directly con-
cerning membership continue to be binding for successor States.
A recent dispute illustrates the need for legal consistency in State suc-
cession issues. Yugoslavia attempted to separate certain treaty rules or
articles of treaties to which it did not want to admit succession as rules of
customary international law in its dispute with Bosnia and Herzegovina
before the International Court of Justice.' Yugoslavia in this case denied
that State succession to the SFRY had taken place and that international
law treaties had become applicable in the relationship between the for-
mer members of the defunct Yugoslav Federation. This subterfuge only
shows that there is a need for a legal solution to such conflicts.
B. State Succession to Bilateral Treaties
The existence of a clear rule of customary international law establish-
ing continuity in open multilateral treaties, a claim for admission to
closed multilateral treaties, and even a claim to membership in interna-
tional Organizations may be doubted from the aforementioned practice.
There is however still a very clear tendency towards such a rule.
This tendency also may be observed in the context of bilateral treaties,
although the pattern is much more difficult to perceive because there are
82 Convention on International Civil Aviation, Dec. 7, 1944, art. 43, 61 Stat. 1180,
1192, 15 U.N.T.S. 295, 324.
84 Case Concerning Application of the Convention on the Prevention and
Punishment of Genocide (Bosn. & Herz. v. Yugo.), 1996 I.CJ.<http://www.law.
cornell.edu/icj/icj4/judgment.hitml. (July 1996)>.
no depositaries circulating information and publishing status lists. The

depositary not only publishes the status list, but usually also publishes the
text of the treaty itself, whereas most of the successor States of the Soviet
Union and the SFRY did not even possess lists of the titles of the bilateral
treaties concluded by their predecessor States.
There are four possible options for dealing with bilateral treaties:
1) Case-by-case negotiation of each treaty between the States con-
cerned in order to establish lists of the treaties to remain in force, to be
terminated, and to be adapted to changed circumstances;
2) General, declaratory recognition of State succession by the successor
State, confirmed by consultations with the predecessor State's treaty
partners;
3) A "wait and see" approach until a practical problem arises that
might be solved through the application of a treaty entered into by the
predecessor State; or
4) General denial of State succession to treaties based upon the tabula
rasa doctrine.
The initiative to select one of these approaches should normally
belong, as in the case of multilateral treaties, to the successor States. For
example, the Alma Ata Declaration may indicate the newly independent
CIS States' willingness to abide by the Soviet Union's treaties.8 5 Simi-
larly, the European Political Cooperation's rules for the recognition of
new States appear to favor continuity, at least in the fields of security and
regional stability.86
1. Case-by-Case Negotiations
The first option gives the greatest certainty about the legal conse-
quences of State succession, but the process is also extremely cumber-
some, as depicted by the example of the reunification of Germany.87
Before the negotiations are concluded, the parties must decide whether
the treaties will remain in force while awaiting the parties' decision to
enter into the new relationship. Each party must then decide whether the
result of the negotiations requires ratification and new publication of the
treaties, or whether a publication of the list of the treaties remaining in
force is sufficient. This may be difficult because many successor States do
not possess the texts, and often not even the lists, of the treaties con-
cluded by their predecessor States, as was the case with most of the suc-
cessor States of the Soviet Union and the SFRY.
85 See Alma Ata Declaration, supra note 70, 31 IL.M. at 149.

86 Declaration on the "Guidelines on the Recognition of New States in Eastern
Europe and in the Soviet Union," reprintedin Guidelines on the Recognition of New
States, supra note 17, 31 I.L.M. 1486, 1487.
87 See Part IV.C.
2. General Declaratory Agreements

Germany preferred to reach declaratory agreements with the successor
States of the Soviet Union, Czechoslovakia and the Socialist Federal
Republic of Yugoslavia. The agreements indicated that all existing trea-
ties would remain in force until renegotiated and replaced by new treaties
if necessary. Such agreements were concluded either in a special para-
graph of "Joint Declarations" on the future cooperation between Ger-
many and the successor State or through exchanges of notes. 88 In the
cases of the Czech and Slovak Republics, Bosnia and Herzegovina, and
Macedonia, the exchanges of notes were designed to coincide with the
German diplomatic recognition of these States - although treaty rela-
tions do not presuppose the existence of diplomatic relations.89 Declara-
tory agreements also include multilateral treaties. In addition to
concluding a new bilateral treaty with a successor State, Germany rou-
tinely includes a clause abrogating the treaty with the predecessor State
on the same subject with effect on the entry into force of the new treaty.
In the case of the Russian Federation, a communication was published
in the Bundesgesetzblatt (Federal Law Gazette) concerning the Russian
Federation's notification that it would continue the memberships of the
Soviet Union in the United Nations and all other international Organiza-
tions and assume all the rights and obligations arising out of the Soviet
Union's treaties.'
General agreements on the continuity of treaty relations are often fol-
lowed by consultations aimed at establishing lists of treaties mutually
considered as being in force.
Germany has discussed treaty lists with Azerbaijan, Belarus, the Czech
Republic, Slovenia, Tadjikistan and Uzbekistan only upon their demand.
Although the Federal Republic of Yugoslavia claims to be identical with
the Socialist Federal Republic of Yugoslavia, Germany denies this claim
and considers the new federation of Serbia and Montenegro to be a suc-
cessor State of the SFRY like the other four former SFRY Republics.
Both assertions, identical to or succession to the SFRY, lead to the same
result. Both parties consider the German-Yugoslav treaties to continue
in force between them. The protocol of the consultations between Ger-
many and the new Federal Republic of Yugoslavia of December 11 and
12, 1996, and between Germany and the former Socialist FederalRepublic
of Yugoslavia declares that the treaties enumerated in Annex 1 will con-
88 Germany concluded Joint Declarations with special paragraphs with Azerbaijan,

Belarus, Kazakhstan, Kyrgystan, Moldova and the Ukraine. Germany exchanged
notes with Armenia, Georgia, Tadjilistan, Uzbekistan, the Czech and Slovak
Republics, Bosnia and Herzegovina, Croatia, Slovenia and Macedonia.
89 Law of Treaties, supra note 10, art. 74, 1155 U.N.T.S. at 350.
90 Bekanntmachung tiber die Fortsetzung der vb1kerrechtlichen Mitgliedschaften
und Vertrqge der Union der Sozialistischen Sowjetrepubliken durch die Russische
F~deration, v. 14.8.1992 (BGBI. II S.1016).
tinue in force between both sides. The parties do not exclude, that more
treaties remain in force, as for example those listed in Annex 2.91
In the case of the Czech Republic, Germany did not publish a commu-
niqu6 on the consultations since the parties made no changes to the
agreement established in an exchange of notes which stated that all Ger-
man-Czechoslovak treaties would remain in force between Germany and
the Czech Republic. In contrast, Slovakia was officially released from its
obligations from the Commission on the Protection of the Elbe through a
multilateral exchange of notes because neither the Elbe nor any of its
affluents pass through Slovakia.92 Similarly, the German-Yugoslav trea-
ties concerning the Danube were expressly abrogated ex nunc on the
occasion of the German-Slovenian consultations since the Danube does
not touch Slovenia.9"
In the case of Uzbekistan and Belarus, four lists of treaties were devel-
oped. The first was a list of treaties in which both sides were interested.
The second list was of treaties which were abrogated ex nunc between
both sides since they were of no interest to either party for bilateral rela-
tions. Examples include treaties on cooperation in outer space, nuclear
research, and deep sea mining. The third list of treaties were to be
adapted to changed circumstances as soon as possible which meant
replacement by new treaties. A fourth list contained the treaties which
one or both sides desired to leave undecided, for example, arms control
treaties of no interest to either side in the bilateral field but involving the
interests of third States.
Experience has shown, at least to German experts on such matters, that
it is extremely difficult to draw up exhaustive lists of existing treaties.
Many treaties have never been correctly published, while others are diffi-
cult to access. In addition, any list of treaties in force necessarily gives
the impression of being complete and exhaustive, so that subsequently
discovered treaties that are considered to remain in force would thus
appear to have been abolished. Therefore, Germany routinely insists on
a salvatory clause declaring that there may be other treaties remaining in
force. Germany, in conclusion, reached declaratory agreements on the
continuity of the Soviet Union, SFRY, and CSFR treaties with all their
91 Bekanntmachung fiber die Fortgeltung der deutsch-jugoslawischen Vertr5ge fin

Verhtltnis zwischen Bundesrepublik Deutschland und der Bundesrepublik
Jugoslawien, v. 20.3.1997 (BGBL II S.961).
92 Bekanntmachung fiber das Inkrafttreten der Vereinbarung fiber die
internationale Kommission zum Schutz der Elbe und des Protokolls zu dieser
Vereinbarung, v. 14.8.1995 (BGBI II S.768). The members of the Commission on the
Protection of the Elbe were Germany, Czechoslovakia and the European
Community.
93 Bekanntmachung fiber die Fortgeltung und das Erli~schen von deutsch-
jugoslawischen O)bereinktinften im Verhaltnis zwischen der Bundesrepublik
Deutschland und der Republik Slowenien, v. 13.7.1993 (BGB1. II S.1261).
nineteen successor States except Turkmenistan and, of course, the three

Baltic States which are not successor States.
3. The Pragmatic Approach
The pragmatic or "wait and see" approach seems to be the most widely
chosen option. Under a "wait and see" approach, treaty partners defer
from taking any action until an issue is presented requiring application of
the treaty. This approach makes it difficult, however, to give a complete
picture of treaty rights and obligations between one State and its treaty
partners.
In the German context, German constitutional law established an obli-
gation to inform German citizens not only about domestic laws but also
about international legal relations and the rights and obligations deriving
therefrom. This obligation under German constitutional law makes the
"wait and see" approach inconsistent with German principles of law and
order.
4. The Tabula Rasa Doctrine
The option of simply denying State succession to treaties, known as the
tabula rasa or "clean slate" doctrine and re-inventing international law
after each case of State succession has never been adopted or openly
defended in recent State practice. Does the application of the tabula rasa
doctrine also suggest that the successor State may not have succeeded to
either the property or the debt of the predecessor State? 94 In fact, even
Austria avoids application of its "clean slate" doctrine and concedes the
practical continuation of treaty relations until a new agreement has been
reached.95 Austria has negotiated lists of treaties to continue with some
States and has confirmed these lists in an exchanges of notes after receiv-
ing Austrian parliamentary approval."6 Austria has perceived the act as
one of novation and the conclusion of a new treaty.
Conclusion
The enormous efforts spent in international lawmaking should survive
the recent cases of State succession, especially since the States having
emerged from the implosion of the Communist "Second World" have
professed their dedication to the values and doctrines of the democratic
94 Graving, supra note 9, at 24-38. The main argument in favor of the "clean slate"
doctrine is that treaties are generally burdensome restrictions to sovereignty and that
a "new State" should be free to reconsider the predecessor State's treaties. The
distinction Vienna I makes between "newly independent States," which are offered a
clean slate, and other successor States, has been justified with the argument that these
formerly dependent territories did not have a voice in the adoption of the predecessor
State's treaties, whereas separated States presumably did. See id. at 24-25.
95 Tichy, supra note 77, at 124.
96 See id. at 135; see also Beemelmans 1I, supra note 1, at 372.
"First World," to law, and to an international order based on globally

accepted principles. Furthermore, the rights and obligations deriving
from international law should be transparent to all concerned States and
citizens.9 7
Therefore, it is not only desirable to reach consensus as to the custom-
ary international rules of law on State succession, but it is also necessary
to provide citizens of all States with a clear picture of existing treaty law.
It should not be objected to that in many cases of State succession the
treaties of the predecessor State do not correspond to the changed situa-
tion between the successor State and the other treaty parties because the
successor State and its partners are free to renegotiate or abrogate such a
treaty by mutual consent. Either side may then withdraw from it "[i]n
conformity with the provisions of the treaty."9 Either side may also
invoke the rebus sic stantibus principle which means a fundamental
change of circumstances.9 9 The Vienna Convention provides for ade-
quate procedures if one of the parties invokes this clause.1" 0
Appreciation of a change of circumstances and the implications to be
drawn are very often a source of controversy. If both parties perceive
that the treaty has become completely inadequate to the new situation,
they may simply declare it obsolete and draw the necessary consequences
under the Convention.
However, even under changed circumstances, an existing treaty is a
very useful basis for negotiations and for maintaining continuous rela-
tions, as illustrated by the example of the multilateral closed Treaty on
Conventional Armed Forces in Europe discussed above.'0"
97 The United States also seems to favor continuity, although the author knows of
no similar initiative to clarify the U.S. position such as Germany's initiative with
practically all of the USSR's, the CSFR's, and the SFRY's successor States. See
Edwin D. Williamson, State Succession and Relations with Federal States, Remarks at
the Annual Meeting of the American Society of International Law (Apr. 1, 1992), in
86 AM. Soc'Y INT'L L. PROc. 1, 12 (1992); Vagts, supra note 3, at 296.
98 Law of Treaties, supra note 10, art. 54(a), 1155 U.N.T.S. at 344.
99 Id. art. 62, at 347.
100 Id. art. 65, at 347.
101 There is thus no real contradiction between the aspirations of the theory pacta
sunt servanda for the stability of the world community (even in times of dramatic
change), and the necessity to find practical and "custom-tailored [solutions] to fit the
varying configuration of individual cases." Graving, supra note 9, at 20. Graving's
skepticism as to "universal succession in all cases" contrasts with his acknowledgment
of the practical desirability of treaty survival. See also O'Connell supranote 2, at 736
(questioning whether there was any practical difference between the clean slate
doctrine and "continuity and denunciation" clauses enabling successor States to
terminate "95% of treaties"). For the successor State, there is not a great difference
regarding sovereignty, but there is for the community of law.
C. The Unique Case of the Reunification of Germany

1. The Nature of the German Case of State Succession
The three cases considered above, the dissolution of the Soviet Union,
of the Socialist Federal Republic of Yugoslavia and of the Czech and
Slovak Federal Republic, were cases of the disappearance of a State sub-
ject of international law and the appearance of successor States within its
territory. Were these new States to be free of all the rights and obliga-
tions entered into by the disappeared Federation? The clean slate doc-
trine would have created a legal void for these new States, to the
detriment of the States themselves, their citizens, and to the States that
had concluded treaties with the predecessor States. Continuity is thus in
the interest of all States and their citizens since it is rare that a treaty is
only of interest to one treaty party and burdensome to the other. Treaty-
making aims at an equilibrium of advantages and inconveniences for both
sides.
In cases where a treaty has become inadequate to both or one of the
parties after an event of State succession, it may be adapted or abrogated
by mutual consent, or the party that considers it inappropriate
10 2
may
invoke the doctrine rebus sic stantibus as stated above.
The reunification of Germany was not a merger of two equal States
despite the somewhat euphemistic title of the Treaty of 31 August 1990
between the Federal Republic of Germany and the German Democratic
Republic on the Establishment of German Unity (Unification Treaty), 03
but involved the adhesion of the GDR to the Federal Republic of Ger-
many according to Article 23 of the latter's Fundamental Law, with the
GDR disappearing at the moment of adhesion and being replaced by five
new Ldnder and some districts of the former East Berlin'o - these
Lander resurging at the very moment of this adhesion. 105 The words
adhesion, absorption, and incorporation mean that one State disappears
and is absorbed by another State which continues its own existence, and
is identical with itself as a subject of international law although its terri-
tory and population are now enlarged.
Articles 11 and 12 of the Unification Treaty deal with State succession
to international treaties and agreements. 10 6 Obviously, such a bilateral
treaty cannot oblige third States, although these two articles were offi-
cially notified to all States and international Organizations with which the
102 Law of Treaties, supra note 10, art. 62, 1155 U.N.T.S. at 347.
103 Treaty on the Establishment of German Unity, Aug. 31, 1990, 30 I.L.M. 457
[hereinafter Unification Treaty].
104 Id. art. 1, at 464. For a detailed discussion, see Beemelmans II, supra note 1, at
343-57. See also PAPENFUI3 I, supra note 2.
105 Article 23 of the Fundamental Law has been changed in the meantime. The
door for new adhesion is now closed.
106 Unification Treaty, supra note 103, arts. 11, 12, at 471, 471.
Federal Republic of Germany had diplomatic relations. 10 7 The articles

were not opposed. Since the articles contain guidelines for the two
States, they shall form the basis for this discussion.
2. Treaties of the Federal Republic of Germany

Article 11 of the Unification Treaty reads:
The Contracting Parties proceed on the understanding that inter-
national treaties and agreements to which the Federal Republic of
Germany is a Contracting Party, including treaties establishing mem-
bership of international Organizations or Institutions, shall retain
their validity and that the rights and obligations arising therefrom,
with the exception of the treaties named in Annex I, shall also relate
to the territory specified in Article 3 of this treaty. Where adjust-
ments become necessary in individual cases, the All-German Gov-
ernment shall consult with the respective Contracting Parties.'
The treaties listed in Annex I concern matters of status and security.
Likewise, the entire West German legal system, including European
Community law, was extended as of October 3, 1990, to the new Lander,
again with few expressly nominated exceptions. 10 9 Thus there should be
created one homogeneous legal space of domestic and international law
as far as the West German treaties were concerned.
The report of the German Federal Government to the Federal Parlia-
ment on the Unification Treaty expressly states that the treaty parties
assumed the existence of a rule of customary international law, the "mov-
ing frontier rule," which would lead ipso jure to the extension of West
Germany's treaties to the territory of the former GDR; and that Article
11 therefore did not contain a ruling but a description of the effects of
customary law1 0
The "moving frontier rule" is in fact a rule of State succession. Since
the Federal Republic of Germany remained identical to itself after
reunification there was no State succession with regard to its treaties."'
107 See Vienna I, supra note 4, art. 8(1), at 7; Law of Treaties, supranote 10, art. 34,
1155 U.N.T.S. at 341.

108 Unification Treaty, supra note 103, art. 11, 30 I.L.M. at 471.
109 See id. arts. 3, 8, 9, 10, at 464, 469-71.
11o Denkschrift zum Einigungsvertrag, BTDrucksache 11/7760, 355, 356, 362.
"' The only State that questioned automatic extension of the West German
treaties to the former East German LAnder was the Netherlands. They demanded
that a list of all the treaties to be extended be drawn up and submitted to the Dutch
parliament for approval. The list began with the year 1815, but it mentioned an even
older treaty admittedly still in force and contained a number of obviously obsolete
treaties. Others were forgotten. Germany insisted on a salvatory clause that the list
was not exhaustive and did not publish it. Only two treaties were adjusted by mutual
consent. The parties did not reach agreement on the adjustment of a third treaty. See
Protocol tussen het Koninkrijk der Nederlanden en de Bondsrepubliek Duitsland
Had there been a real uniting of the two German States through the
application of Article 146 of the Fundamental Law of the Federal Repub-
lic of Germany and the elaboration of a new constitution for a new State,
not only would much time have been lost and many risks incurred for the
reunification process, but the identity of the new united German State
with the old Federal Republic of Germany could have been doubted.
Vienna I in this case establishes the continuity of the treaties of the
uniting States, limited, however, to their original scope of application. If
Article 31 of Vienna I had been applied, the GDR treaties would have
remained in force in the former GDR territory, and likewise, the treaties
of the old Federal Republic of Germany would have remained in force in
the "old Ldinder." The "moving frontier" rule would not have applied,
and there would not have been created one homogeneous legal space.
One of the reasons why the Bonn opposition advocated the Article 146
option - and why Chancellor Kohl opposed it - was that the opposition
hoped there would be for the united Germany an easy way out of the
NATO treaty."
3. Multilateral GDR Treaties
As to multilateral GDR treaties, Article 12, Paragraph 3 of the Unifica-

tion Treaty states:
Should the United Germany intend to accede to international Orga-
nizations or other multilateral treaties, of which the German Demo-
cratic Republic but not the Federal Republic of Germany is a
member, agreement shall be reached with the respective Contracting
Parties and with the European Communities where the latter's com-
petence is affected." 3
It must be inferred from this paragraph that both sides assumed that on
the reunification date the GDR membership in such multilateral treaties
and international Organizations would automatically expire. The process
set forth in Article 12, Paragraph 3 reaffirms the principle that any State
can become a member of an international Organization or a party to a
multilateral treaty if the other member States agree.
Nothing is said however about treaties to which both German States
had been members. Obviously it would be understood that the united
Germany would continue being a member. The GDR membership can
inzake de gevolgen van de Duitse eenwording voor de bilaterale verdragsrelaties, met

bijlagen, 25 januari, 1994, 7 Tractatenblad No. 81 (1994).
112 See KAi DIEKMANN & RALF GEORo REUTH, HELMUT KOHL: "IcH WOLLTE
DEUTSCHLANDS EInmrmrr" 291, 325 (1996).
"13 Unification Treaty, supra note 103, art. 12(3), 30 I.L.M. at 472.
1997] STATE SUCCESSIONIN INTERNATIONAL LAW
be considered in these cases as having been merged with the Federal Ger-
man membership.1 14
On the other hand, that any State can become a member of an interna-
tional Organization or a party to a multilateral treaty if the other parties
agree goes without saying. The provision makes sense, however, in cases
where the GDR had acquired rights and contracted obligations as a mem-
ber State of an international Organization in the membership of which
the enlarged Federal Republic of Germany might wish to succeed.' 1 5
4. Treatment of Bilateral GDR Treaties before Reunification
Paragraphs 1 and 2 of Article 12 of the Unification Treaty are even less

clear on the issue of succession to bilateral treaties. Paragraph 1 states:
The Contracting Parties are agreed that, in connection with the
establishment of German Unity, international treaties of the German
Democratic Republic shall be discussed with the Contracting Parties
concerned with a view to regulating or confirming their continued
application, adjustment or expiry, taking into account protection of
confidence, the interests of the States concerned, the treaty obliga-
tions of the Federal Republic of Germany as well as the principles of
a free, democratic basic order governed by the rule of law, and
respecting the competence of the European Communities." 6
This agreement between the two German States obliged the GDR, as
long as it existed, to prepare for reunification through the negotiated
adjustment of its treaties to the new situation. A similar disposition was
contained in Article 13, Paragraph 2 of the Treaty of May 18, 1990, on the
Creation of an Economic, Monetary and Social Union between the Fed-
114 Consequently, the GDR's reservations and declarations upon becoming a party
to a treaty expired as well, whereas the Federal Republic of Germany's reservations
and declarations were extended to the former GDR territory together with
membership in a given treaty. The problem of different reservations raised by
Graving is therefore difficult to envision. Graving, supra note 9, at 42-43. The U.N.
Secretary General, functioning as depositary, demoted the East German reservations
to footnote status and recorded Germany as maintaining only the original West
German reservations. See id. at 43.
1r See Beemelmans II, supra note 1, at 347 n.23. The only case in which the united
Germany adhered to a multilateral GDR treaty is the Intersputnik Agreement. IdM;
see also PAPENFuB I, supra note 2, at 97. This would be a simple accession, but the
united Germany entered into the position of the GDR concerning acquired rights and
accumulated debts. The case therefore resembles the "negotiated successions" to the
IMF and the World Bank described above in Part llI.D. Similarly, the enlarged
Federal Republic of Germany acceded to the agreement of July 12, 1990 to terminate
the Petrobaltik Organization of which the GDR, the Soviet Union and Poland had
been members. See PAPENFuB I, supra note 2, at 98.
116 Unification Treaty, supra note 103, art. 12(1), 30 I.L.M. at 472.
eral Republic of Germany and the GDR - the so-called Staatsvertrag. 117
This article was limited, however, to treaties concerning economic rela-
tions with third States.
Both Article 12 of the Unification Treaty and Article 13, Paragraph 2
of the Staatsvertrag applied to the period preceding reunification. This is
especially clear in the case of the Staatsvertrag. But the principles to be
taken into account, according to Article 11, Paragraph 1, when discussing
with the contracting parties concerned are obvious for the Federal
Republic of Germany, and this German State was not entitled to discuss
the GDR treaties as long as the GDR existed! On the other hand,
enumerating these principles to the GDR as guidelines for its discussions
makes sense.
But the two provisions described do not pertain to State succession
since no such event of succession had yet occurred. In its execution of
these rules, the GDR declared its defense treaties effectively extinguished
as of October 3, 1990, and denounced its membership in the COMECON
by a circular Note on October 2, 1990 to all member States. 118
5. Bilateral GDR Treaties after Reunification

Paragraph 2 of Article 12 of the Unification Treaty states: "The united
Germany shall determine its position with regard to the adoption of inter-
national treaties of the German Democratic Republic following consulta-
tions with the respective Contracting Parties and with the European
Communities where the latter's competence is affected.""' 9 This rule
only declares that the parties to the Unification Treaty had not reached
a reement on the fate of the GDR treaties. 2 At any rate the word
"Ubergang" in the original text'" seems to indicate that the parties con-
templated that something would occur ipso jure rather than as a result to
be reached through negotiations.
117 Vertrag fiber die Schaffung einer Wfhrungs-, Wirtschafts- und Sozialunion
zwischen der Bundesrepublik Deutschland und der Deutschen Demokratischen
Republik (Staatsvertrag), (BGB1. 1990 II S.537).
118 See Beemelnans II, supra note 1, at 345; see also PAPENFUB I, supra note 2, at
77.
119 Unification Treaty, supra note 103, art. 12(2), 30 I.L.M. at 472. As to the
attitude and the participation of the Commission of the European Communities, see
PAPE-NFUB I, supra note 2, at 69, 106, 127 n.415. The Commission, at first, was in favor
of continuity as far as its competence for the matter at hand was concerned, but later
on adhered to the doctrine of expiry defended by the German delegation.
120 The Denkschrift states that the parties do not assume the general expiry of all
GDR treaties. They do not anticipate the decision of the united Germany.
Denkschrift zum Einigungsvertrag, supra note 110, at 362.
-21 The original German text reads: "[Sleine Haltung zum Cibergang
voIlkerrechtlicherVertrage." The official French translation: "[Sla position sur la suite
d donner aux traitgs."
In fact, in May 1990, the GDR Ministry of Foreign Affairs circulated a

memorandum to its treaty partners stating that its treaties would remain
in force "according to customary international law." 2 The West Ger-
man delegation's head, Wolfgang Schiiuble - then Minister of the Inte-
rior - initially held the same view.' In contrast, the Soviet Union
always thought that an accession of the GDR to the Federal Republic of
Germany according to Article 23 of the Fundamental Law would lead to
the GDR's disappearance and hence to the expiry of its treaty relation-
ships with the Soviet Union.' This position explains the Soviet Union's
insistence on incorporating clauses in various treaties with the Federal
Republic stating that the confidence it had placed upon the treaties with
the GDR be respected, and that the exchange relations based on these
treaties be developed, although on a new footing."m
Thus, the question arose as to what could the "position" of the united
Germany be or what options did the parties to the Unification Treaty
have? Paragraph 1 of Article 12 offers three alternatives which appar-
ently had been considered as possibilities within the scope of Paragraph 2
as well: continuity, adjustment, and expiry.
Adjustment of a treaty due to changed circumstances means a mutually
agreed amendment - through a new treaty which modifies the old treaty
(and thus confirms its uninterrupted existence). The term adjustment
should not be used when an old treaty is replaced ex nunc by a new
treaty. Parties can always renegotiate treaty provisions. Parties also have
the option of negotiating a mutually agreed upon continuation or expiry
of the treaty. It should be noted, however, that parties should decide
whether the treaty is still in force before negotiating a treaty adjustment.
The question therefore remains whether the united Germany should
have opted for the continuation or for the expiry of the bilateral GDR
treaties. In the cases of the GDR's membership to international Organi-
zations and multilateral treaties, the Unification Treaty provided for
expiry or confusion with the West German membership. 6 But for bilat-
122 See Beemelmans T, supra note 1, at 349 n.30. See the relevant passage quoted
in PAPENFuB I, supra note 2, at 23 n.88.
=2 WOLFGANG SCHAuBLE, DER VERTRAG 14, 120, 136, 152 (1991).
324 H. TELTSCHIK, 329 TAGE-INNENANSICHTEN DER EINIGUNG 140, 156, 170, 180,
185, 198, 201, 204, 220, 325, 336 (1991).

125 See Vertrag vom 9. November 1990 zwischen der Bundesrepublik Deutschland
und der Union der Sozialistischen Sowetrepubliken fiber die Entwicklung einer
umfassenden Zusammenarbeit auf dem Gebiet der Wirtschaft, Industrie,
Wissenschaft und Technik [German-Soviet Treaty of 9 November 1990], art. 23,
(BGBI. 1991 I S.798); Priambel Abkommen vom 9. Oktober 1990 zwischen der
Regierung der Bundesrepublik Deutschland und der Regierung der Union der
Sozialistischen Sowjetrepubliken fiber einige tlberleitende MaBnahmen [Preamble to
the German-Soviet Union Agreement of 9 October 1990], (BGBI. 1990 II S.1654).
See also Beemelmans I, supra note 1, at 344 n.17.
126 See Unification Treaty, supra note 103, art. 12, 30 IL.M. at 472.
eral treaties, this question was only to be answered "following consulta-

tions with the respective contracting parties."'" 7
The purpose of these consultations was not just to find an answer to a
question of international law, but to make the reunification of Germany
politically acceptable to all other States "taking into account protection
of confidence [and] the interests of the States concerned."' ' Such con-
sultations have occurred with 135 States. 9 In many cases, the German
delegation did not even know at the outset about the existence of many
of the treaties concluded by the GDR with its partners.
Not a single treaty has been adjusted, but a considerable number of
new treaties have been concluded which replace the old GDR treaties,
especially treaties on border regimes. These new treaties entered into
force ex nunc, while the replaced GDR treaties were considered as hav-
ing expired ex tunc on October 3, 1990. This sequence of events caused
discontinuity between these treaties. The Treaty on Conventional Armed
Forces in Europe is a model case of treaty adjustment.'3 ° Adjustment
would have required the drafters to redefine the territorial applicability
of the original treaty (was it applicable only in the new LUinder or was it
to be extended to those of the old Federal Republic?). It would have also
required approval by the Federal Parliament where necessary, transfor-
mation into domestic law, and publication. 1 '
Not a single treaty has been declared in the Bundesgesetzblatt as con-
tinuing in force. Here, the same problems would have arisen as those in
the case of adjustment: scope of application, ratification by Parliament,
transformation, and publication.
The only examples PapenfuB gives of treaties having been mutually
considered - in the non-published consultation protocols (not in the offi-
cial German publications) - as continuing in force are the Property
Treaties (Vermdgensvertrdge), lump sum compensation for expropriation
127Id. art. 12(2), at 472.

m Id. art. 12(1), at 472.
129 See Beemelmans H, supra note 1, at 350. PapenfuB provides a list of the
relevant publications in the BGBl. as per December 6, 1996. PAPENFUB I, supra note
2, at 249-53. The corresponding list in PapenfuB , supra note 2, at 239-44, ends on
January 22, 1996.
130 See supra note 53 and accompanying text.
131 See Hans D. Treviranus & Hubert Beemelmans, National Treaty Law and
Practice: Federal Republic of Germany, in NATIONAL TREATY LAW AND PRACTICE:
FRANCE, GERmANY, INDIA, SwrrzzERLAND, THAILAND, UNITED KINGDOM 43
(Monroe Leigh & Merritt R. Blakeslee eds., 1995). The case described by PapenfuB is
neither a case of agreed continuity through an exchange of notes nor a case of
adjustment. PAPEr uJB I, supra note 2, at 170-72. The Agreement of May 3, 1981,
between the GDR and Austria on the Exchange of Information and Experiences in
the Field of Protection against Irradiation, was not extended ex tunc, as per October 3,
1990 to the old Lldnder, but replaced ex nunc by a new agreement between Germany
and Austria although part of the old wording had been utilized.
agreements between the GDR and Austria, Denmark, Finland and Swe-
den, and a similar GDR-SFRY agreement of May 22, 1963.12 In these
treaties, the other States renounced certain claims against compensation
payments by the GDR. In the cases in which the GDR had paid the
stipulated sums, the treaties can be considered as fully executed and
therefore expired on the day of the last payment - the renouncement to
the claims of the other side of course remaining in force. This was appar-
ently the case with the aforementioned treaties with Denmark, Finland,
Sweden and Yugoslavia. In the case of Austria, Germany paid the
amounts outstanding on the date of reunification and thus fulfilled the
condition for the entry into force of the renouncement of Austria to its
claims. The wording of the consultation protocols in these cases probably
was the result of compromises. It means that the parties did not mean to
question the settlements contained in the treaties but rather to terminate
their implementation. Had they stated that the treaties had expired but
that the rights and obligations arising out of them continued in force the
result would have been the same. At any rate, Germany abstained from
publishing these five treaties as continuing in force. The German publica-
tions are limited to treaties being declared by Germany as expired. The
titles of the treaties still under consideration by "experts" are not given.
In several cases it is said that it has been agreed to apply the provisions
or some of the provisions of a certain agreement up to a certain date.
This mutually agreed application of provisions of an expired agreement
made it unnecessary to fulfill the aforementioned constitutional require-
ments for the conclusion of international agreements, since in all these
cases the provisions were of an administrative nature.
Germany has declared more than 2200 treaties to have expired as of
October 3, 1990. The titles of these treaties and the fact of their expira-
tion have been published in the Bundesgesetzblatt, together with a
salvatory clause declaring that "[tihis statement does not exclude that
other treaties concluded between the German Democratic Republic and
...have also expired upon the establishment of German unity on Octo-
ber 3, 1990."' 33 The declarations of expiry as of October 3, 1990 are
declaratory. As a passive event, expiry (Erldschen) can only occur ipso
132 PAPENFuB I, supra note 2, at 163-67.

133 Beemelmans II, supra note 1, at 350. The standard protocol on the
consultations held in conformity with Article 12 of the German Unification Treaty
runs as follows:
From... to.. ., consultations were held in... between delegations of the Federal
Republic of Germany and ... on the treatment, after the establishment of
German unity, of international agreements concluded between the German
Democratic Republic and .... A representative of the Commission of the
European Communities was also present. Lists of delegations are attached.
The two delegations exchanged views on general aspects of the problem and the
possibilities of its practical solution. Both sides agreed that such a solution could
be found in conformity with international law.
jure, as a consequence of a rule of customary international law which

would apply in a case of State succession such as the GDR's disappear-
ance and incorporation into the Federal Republic of Germany. Only in
one specific case, the Vienna Convention on the Law of Treaties, is there
provision for the possibility of a treaty becoming void and terminating
ipso jure without an agreement between the parties or a unilateral initia-
tive by one of the parties based on one of the convention's provisions.134
However, the Convention also expressly states that the treaty shall not
15
prejudge questions arising from State succession.
Expiry - as mentioned in Article 12 of the Unification Treaty - can
only be a consequence of a general rule admitting no exceptions and no
casuistic approaches. On some 400 treaties such an expiry declaration is
still outstanding. These treaties are still under discussion because they
deal with matters that have not yet been settled between the united Ger-
many and the States concerned, mainly claims and debts.
Basis of the consultations was a list of international agreements drawn up

according to the archives of both sides. It cannot be assured that this list is
complete. Should further agreements become known in the future, the two sides
shall inform each other through diplomatic channels.
The German side emphasized the significance of article 12 of the Treaty of
August 31, 1990, between the Federal Republic of Germany and the German
Democratic Republic on the establishment of German unity, which has been
notified to the... Government.
After thorough discussion the agreements were classified as follows:
Agreements listed in Annex I have expired according to customary international
law upon the establishment of German unity on October 3, 1990;
Agreements listed in Annex f are referred to experts of competent authorities of
both sides for further examination. The result of these examinations may be that
these agreements are also considered as expired.
Both delegations agreed that the expiration of treaties and agreements does not
affect existing financial obligations of both sides which have been incurred prior
to October 3, 1990, for the delivery of products or services.
The German side stated that it intended to publish officially in due course a list of
the expired agreements. The ...side noted that it would proceed in a similar way
according to its constitutional requirements.
The two delegations agreed that the German ...consultations have hereby been
concluded. Expert talks will be held as prescribed in this Protocol.
PapenfuB treats the treaties contained in Annex II incorrectly as "noch nicht erlos-
chene Vertrage." PAPENFUB I, supra note 2, at 253. In his article, he even calls them
"Traitds encore en vigueur." PapenfuB II, supra note 2, at 239. The publications as
well as the protocols carefully avoid such terminology. Terminology which is inconsis-
tent with the permanent German practice of eventually declaring the GDR treaties as
expired ex nunc per October 3, 1990 after the conclusion of "further examinations."
134 Law of Treaties, supra note 10, art. 64, 1155 U.N.T.S. at 347. The emergence of
a new peremptory norm of general international law Uus cogens) can render treaties
which conflict with that norm void.
135 Id. art. 73, at 350.
19971 STATE SUCCESSION IN INTERNATIONAL LAW
Conclusion
It must be stressed again that the Unification Treaty was a bilateral
treaty between the two German States. Therefore, its interpretation of
State succession is binding only upon the two parties. However, the con-
sultations with those 135 States, which have lasted now more than six
years and which are still going on with some States in the form of discus-
sions between experts, established a worldwide consensus that in this cir-
cumstance, there was no continuity of the treaties themselves."3 6 This
conclusion is reached despite the fact that the effects and consequences of
some of these treaties, such as claims and debts, balances of clearing
'accounts, delimitations of boundaries, would survive and in many cases
require new agreements.
The "moving frontier rule" was thus applied in its double sense: the
treaties of the old Federal Republic extended to the absorbed State, and
the absorbed State's treaties expired together with the State itself. This
avoided the superimposition of the Federal Republic's treaties upon
those of the GDR in the new Ldnder's territory only.
This result corresponds with the Unification Treaty's solution for
domestic law: one legally homogeneous space having been created" 7
where there were to be no conflicts between "superimposed" domestic
laws or international treaties. This result also corresponds with the rules
of Vienna I for the cession of territories which clearly confirms the "mov-
ing frontier rule."'3" Vienna I did not consider the accession of one State
to another as a specific case of State succession, but treated the process as
a case of the uniting of two equal States.' The two German States did
initially have the option of merging into one new State, giving themselves
a new constitution according to Article 146 of the federal Fundamental
Law, but it was decided otherwise.
The result of the consultations shows that one should rather speak of
the winding-up (Abwicklung) of the GDR treaties instead of Ubergang
(adoption) of the GDR treaties as Article 12(2) states or of Uberleitung
(also translated as adoption) as the title of the head of the German dele-
gation in the Article 12 consultations has it ("Der Beaufragtefar die Ver-
handlungen betreffend die berleitung .... "). These treaties have not
136 Only the Czech Republic does not accept the expiry of its treaties with the
GDR ex tunc and claims their continuity. Compromise formulas had to be found.
Thus Article 15 of the German-Czech Treaty of December 12, 1995 on Cooperation in
the Use of Border Waters simply states that this treaty "replaces" a GDR treaty.
Vertrag vor 12. Dezember 1995 zwischen der Bundesrepublik Deutschland und der
Tschechischen Republik iber die Zusammenarbeit auf dem Gebiet der
Wasserwirtschaft an den Grenzgewdssem, (BGB1. 1997 II S.924).
137 Unification Treaty, supra note 103, arts. 3-11, 30 I.L.M. at 464-71.
138 Vienna I, supra note 4, arts. 31(1), 33(1), at 23, 25.
139 Report of the ILC, supra note 9, at 209, 253, 259; see also Beemelmans II, supra
note 1, at 342, 354.
been incorporated into the corpus and the status lists of the treaties of the
Federal Republic of Germany. The treaty partners of the GDR have
accepted this position of the "United Germany" since the confidence
they had placed in the continuity of these treaties and their interests had
been taken into account to their satisfaction in this winding-up as140Article
12(1) of the Unification Treaty prescribed for the German side.
V. SUCCESSION TO STATE DEBT AND STATE PROPERTY: NEGOTIATED

SETTLEMENTS
State succession to legal rights and obligations such as State property

or State debt (contractual or extra-contractual), to boundaries or territo-
rial regimes, and to State archives must be distinguished from State suc-
cession to treaties. The ILC recognized this distinction and has
elaborated a special convention on State succession with regard to State
property, State archives and State debts. 4 ' "State property" is defined in
this context as "property, rights and interests which.., were, according to
the internal law of the predecessor State, owned by that State."' 42 This
definition does not exclude property situated abroad. 4 '
Questions about State succession to property are a focal point of dis-
cussion mainly for successor States themselves and in their relationship
with the predecessor State, and these questions have to be settled by
agreements between these States. Vienna II gives guidelines for such
agreements. This Article concentrates on the effects of State succession
affecting third States and their subjects.'" Vienna II tries to limit these
effects. Where the Convention privileges the so-called "newly independ-
ent States" arising out of the process of decolonization, it holds the pred-
140 PapenfuB admits that the German delegation in the Article 12 consultations
resolutely defended the principle of discontinuity of the GDR treaties. PAPENFUB I,
supra note 2, at [04, 113. He is rather inclined to adhere to the opinion then
prevalent in West Germany that treaties running with the land (radizierte Vertrage)
would always remain in force, whereas "personal" or "highly personal"
(hechstpersonliche) and "political" and "highly political" (hochpolitische) treaties
would expire. PA,,ENFuB I, supra note 2, at 28. These hard to define distinctions
certainly have played a role in the consultations, for the sake of argument, together
with the rebus sic stantibus principle But there is no evidence in the official German
publications as to their decisive quality.
141 Vienna II, supra note 5.
142 Id art. 8, at 6.
143 Id. art. 15(1)(b), (f), at 9, 10.
'44 Archives situated in the predecessor State and belonging according to the lex
rei sitae to a third State shall not be affected by State succession. Archives situated in
third States are not dealt with specifically, but may fall under the definition of Article
20: "[D]ocuments [which] . . . belonged to the predecessor State according to its
internal law and were preserved by it directly or under its control." Id. art. 20, at 13.
ecessor States responsible for the consequences of succession. 145 These

cases belong to the past.
Only the "national" debt and the "national" assets of the predecessor
State shall be discussed here. "Local" debts and assets, as well as "local-
ized" debts and assets can be dealt with separately, that is, they have to
be attributed directly to the corresponding successor State or to its com-
petent authorities or agencies.' This often considerably reduces the
practical impact of a case of State succession.
A. The Reunification of Germany

The reunification of Germany was, as we have seen, a case of incorpo-
rating the GDR into the Federal Republic of Germany. At the same
time, the territory of the GDR left the block of the socialist countries, the
Warsaw Pact, the COMECON and other pre-unification commitments,
and was integrated into the European Communities, NATO, and a host
of commitments of the Federal Republic. But the reunification of Ger-
many had been carefully prepared by a series of mutual agreements: the
Unification Treaty, the Treaty of September 12, 1990 on the Final Settle-
ment with Respect to Germany (the "2 + 4 Treaty"),14 7 and a series of
bilateral treaties.' In addition, the consultations on the GDR treaties
described above served to solve the remaining problems.
Since the enlarged Federal Republic of Germany was identical to the
old one in terms of international law, there has been no issue of State
succession with respect to its assets and debts.14 9
145 Id. art. 13, at 8.

146 The ILC divided State debt into national debt, local debt and localized debt.
Localized debts are "debts raised by a central government or by particular territorial
governments with respect to expenditure on particular projects in particular
territories." International Law Association, Report of the Fifty-fourth Conference,
Aug. 23-29, 1970; see also Beemelmans I, supra note 1, at 85 n.27.
147 Treaty on the Final Settlement with Respect to Germany, Sept. 12, 1990, 29
I.L.M. 1186 [hereinafter "2 + 4 Treaty"].
148 See, e.g., Vertrag vome 14. November 1990 zwischen der Bundesrepublik
Deutschland und der Republik Polen tiber die Bestatigung der zwischen ilmen
bestehenden Grenze [German-Polish Treaty of 14 November 1990 on the
Confirmation of the Border Existing Between Them], (BGBI. 1990 II S.1328);
German-Soviet Treaty of 9 November 1990, supra note 125; Vertrag vome 12. Oktober
1990 zwischen der Bundesrepublik Deutschland und der Union der Sozialistischen
Sowjetrepubliken fiber die Bedingungen des befristeten Aufenthalts und die
Modalitfiten des planmaiBigen Abzugs der sowjetischen Truppen aus dem Gebiet der
Bundesrepublik Deutschland [Treaty of 12 October 1990 on the Stationing and
Withdrawal of Soviet Troops], (BGB1. 1991 II S.256); Preamble to the German-Soviet
Union Agreement of 9 October 1990, supra note 125.
149 See Report of the ILC, supra note 9, at 89. Like Vienna I, Vienna II treats
incorporation as a uniting of States. Vienna II did not consider the problems
The Unification Treaty attributed the GDR's assets and debts to the
Federation, the five new Linder, the municipalities, and other entities of
these Ltinder according to the Federal Republic's organization and legal
structure, which was extended to the new Ld.nder. In addition, some of
these assets and debts were attributed to the Treuhandanstalt. 15 0 These
organizational rules of distribution did not affect the debts and assets
themselves.
Of course, the radical transformation of the socio-economic and legal
structure which took place in the former GDR's territory and on the ter-
ritory of many of its main partners very often called for adaptations. For
example, titles on houses and other real property established under GDR
socialist law had to be transformed into the corresponding titles under
federal German law. Clearing accounts had to be transformed into
accounts in convertible currency. Many of these problems were and are
being dealt with in the consultations and in the ensuing expert discussions
on the expired GDR's treaties.
The Unification Treaty served its purpose of accomplishing the peace-
ful revolution in the GDR by fostering rapid and harmonious change in
the former GDR. By recognizing the trading and other interests of treaty
partners, the treaty effectively headed off protests of or problems with
third States. The uniting of States or the incorporation of one State into
another thus seems to create no problems in the context of debts and
assets: the debts and assets of the States concerned are merged together
with the States themselves1 5 so that there can be no doubt as to whom is
entitled or indebted in each case.
A State's dissolution or disintegration, however, gives rise to a number
of questions: who is liable for the debts of the predecessor State? Who is
entitled to its assets? What about claims or assets that cannot be divided
between the successor States?
B. Czechoslovakia
Like the reunification of Germany, the dissolution of the Czech and
Slovak Federal Republic on December 31, 1992, was well prepared for by
the two successor States in consultation with third States so as to avoid
problems. The general formula adopted seems to have been that the
Czech Republic took two-thirds of all foreign debts and assets of the for-
associated with the transcription or the transfer of individual assets. It is here that the
question of the identity of the incorporating State makes the difference.
150 Unification Treaty, supra103, arts. 21, 23, 24,26(2), 27(1), 30 I.L.M. at 476,478,
480, 482, 482; see also Beemelmans I, supra note 1, at 81, 91.
151 See Vienna IT,supranote 5, arts. 16, 29, 39, at 10, 17, 22. State property, State
archives, and State debts of the predecessor States pass to the successor State which
they have formed. However, cases such as that of the United Arab Republic, where
Syria and Egypt did not actually merge but remained separate legal entities, are
distinguishable.
mer CSFR and the Slovak Republic took one-third. 152 Then, individual
assets such as embassy premises had to be distributed between them.
This seems generally to have been done for each third State separately,
and rapidly enough to prevent problems with third States or private
claimants.
C. The Soviet Union

The Soviet Union's dissolution occurred much less smoothly and in
three distinguishable phases as to debts and assets:
1. The Memorandum of Understanding of October 28, 1991

The Soviet Union was invited as an observer to the G-7 World Eco-
nomic Summit in June 1991 in London. In the ensuing negotiations with
the G-7's Finance Ministers in Moscow during October 1991, the Memo-
randum of Understanding (MoU) of October 28, 1991153 was negotiated.
The Soviet Union eventually signed the MoU - through the president of
the "Interstate Economic Committee" - along with the following States:
Russia, Belarus, Armenia, Georgia, Kazakhstan, Kyrgystan, Moldova,
Tajikistan, Turkmenistan and Ukraine. The three Baltic States, Azerbai-
jan, and Uzbekistan abstained from signing the MoU.
In the MoU, the States Parties declared themselves jointly and sever-
ally liable for the debts contracted by the Soviet Union government and
by other legally authorized entities .15 They authorized the Vnes-
checonombank to administer the Soviet Union's foreign debt.155 The
MoU did not exclude private creditors; it entered into force upon signa-
ture; and reserved quotas for the five States that did not sign the agree-
ment.'56 On the basis of the MoU, the seventeen most important creditor
States granted on January 4, 1992, a deferral to the signatories until the
end of 1992.151
2. The Treaty of Minsk of December 4, 1991

In this treaty, the parties attempted to distribute both the foreign debt
and the foreign assets of the Soviet Union among the fifteen (former)
152 See CFE Treaty, supra note 53.

153 Memorandum of Understanding on the Debt to Foreign Creditors of the Union
of Soviet Socialist Republics and its Successors, Oct. 28, 1991, in Agreement on the
Deferral of the Debt of the Union of Soviet Socialist Republics [U.S.S.R.] and its
Successors to Foreign Official Creditors, Jan. 4, 1992, app. [hereinafter MoU].
154 Id.
15 Id. The Vnescheconombank is the Bank for Foreign Economic Activity.
156 See id.
157 Agreement on the Deferral of the Debt of the Union of Soviet Socialist
Republics [U.S.S.R.] and its Successors to Foreign Official Creditors, supra note 153,
at 1.
Soviet Republics. The distribution was according to the following

percentages:
Russia 61.34% Ukraine 16.36%

Belarus 4.13% Uzbekistan 3.27%
Kazakhstan 3.86% Georgia 1.62%
Azerbaijan 1.62% Lithuania 1.41%
Moldova 1.29% Latvia 1.14%
Kyrgystan 0.95% Tajikistan 0.82%
Armenia 0.86% Thrkmenistan 0.70%
Estonia 0.62%158
Parties to this treaty were the Soviet Union "as predecessor State" and
the "States that are or have been subjects of the USSR," "conscious of
the fact that to guarantee and to pay back the foreign debt of the Soviet
Union is a precondition to future access to the world market" and
"considering the principles of international law and the rules of the
9
Vienna Convention of 1983.1'
The treaty was to enter into force with the signature of at least two
successor States.1 60 Ten signatures were eventually obtained. The
Ukraine, Georgia, and the Baltic States abstained.' 61 The treaty also
provided for a supplementary agreement between the signatory 1States
62
in
case not all the former Soviet Republics adhered to the treaty.
This treaty was the basis of the corresponding part of the Alma Ata
Declaration of December 21, 1991, which stated: "The States
participating in the Commonwealth guarantee in accordance with their
constitutional procedures the discharge of the international obligations
deriving from treaties and agreements concluded by the former Union of
Soviet Socialist Republics."'6 3 This formula - external joint liability,
debt management through the Vnescheconombank, and joint raising of
the necessary funds for the debt service according to an agreed schedule
- soon proved unreliable. The Baltic States, Georgia, and the Ukraine
refused to adhere to this scheme of internal distribution of the debt. The
others simply did not pay their share. On June 1, 1992, Russia adhered to
the IMF. The D/IF from then on played a role in the consolidation of the
Russian currency and indirectly in the settlement of the Soviet foreign
debt.
158 Beemelmans I, supra note 1, at 88.

19 Id.
160 See id.
161 See id.
162 See id. (referencing Treaty of Minsk, art. 4, Para. 3).
16 Alma Ata Declaration, supra note 70, 31 I.L.M. at 149.

3. The "Zero Option Agreements"
Russia has concluded a network of bilateral agreements with the other

eleven successor States of the Soviet Union. Under this network of
agreements, the successor States transfer their claims to Soviet assets
abroad to Russia and Russia assumes the sole responsibility for paying
the Soviet Union's external debt ("zero option agreements"). Corre-
sponding to these agreements, nineteen Paris Club creditor countries
accepted the Russian declaration that it would assume the responsibility
of servicing the whole of the former Soviet Union's debt.1 64 The MoU
would be "inoperative" and the creditors agreed not to bring claims
against the other successor States so long as Russia executed its obliga-
tions out of this agreement with the creditor countries.
D. Yugoslavia
Assuming that the Federal Republic of Yugoslavia (Serbia and Monte-
negro) was identical with the ex-SFRY, it could be inferred that the new
federation was solely liable for the debt of the SFRY.16 5 However, this
State has been notoriously unable to honor its obligations, and financial
transactions with it were affected by the United Nations and European
Union embargoes. Thus, the assumption above was flawed for both cred-
itor countries and for the former Yugoslavia's other successor States
which were anxious to become internationally creditworthy. Up until
now, there have been no negotiations with the Federal Republic of Yugo-
slavia in the Paris Club.
The process of the SFRY's dissolution could have been considered in
the beginning as a series of secessions which left the creditors with a pred-
ecessor State liable for the common debt. But on the other hand, the
secessionist States were eager to become creditworthy, and were there-
fore interested in a partial solution for the SFRY debt, in so far as it was
attributable to them. Hence, the successor States' separate negotiations
with the IMF and the World Bank'6 6 and a context where the generally
accepted definition of the date of State succession becomes questionable
for cases of dismemberment.
Slovenia, Croatia, and Bosnia and Herzegovina are thus negotiating
with the Paris Club on the provisional basis of the quota fixed for each of
them by the IMF for their "negotiated succession." These quotas apply
164 Press Conference on RF-US Summit Results by Vice PremierAlexander Shokin,

April 6, 1993, available in LEXIS, News Library, Arcnws File (describing the Paris
Club meeting of April 1-2, 1993 and agreement).
165 Williams, supra note 45, at 792; see also Beemelmans I, supra note 1, at 89.
166 See Five Former Yugoslavia Republics Could Join World Bank, European
Report, Mar. 10, 1993, available in LEXIS, News Library, Arcnws File.
to the "unallocated debt" of the SFRY, 1whereas

67
each successor State will
have to bear its "allocated debt" itself.
The four cases discussed above show that the questions of State debt
and State property have to be dealt with jointly. This can be seen very
clearly in the "zero option agreements" between Russia and the other
successor States of the Soviet Union, as well as in the IMF's practice and
in the agreements between the Czech and Slovak Republics. The Inter-
national Conference on the former Yugoslavia is working on a draft
treaty which would distribute the whole debt and the whole property of
the ex-SFRY between its successor States. This formula would then sup-
plant the provisional scheme of the IMF."
It also follow,; from the cases studied that any agreement between the
successor States must be approved by the third States concerned. The
IMF could function as the mediator and the Paris Club could multilater-
ally prepare the ground for subsequent bilateral agreements between
each successor State and its creditors.
It should be noted that none of the successor States in these recent
cases has tried to invoke the clean slate doctrine: denying responsibility
for the debts of its predecessor State. This practice is unlike Article 38 of
Vienna II in the case of "newly independent States," and also contrasts
with Great Britain's attitude with respect to the annexed Boer Republics'
debts in 1900,169 Italy's approach in the case of Ethiopia in 1936, 17 Ger-
many's initial attitude in the case of the "AnschluB" of Austria in 1938,171
and the Soviet Union's view with regard to the annexed Baltic States in
1940.172 The preamble of the Minsk treaty of December 4, 1991, quoted
above, explains this otherwise surprising phenomenon, surprising espe-
cially if one considers out of what a world these successor States have
come.
167 See, e.g., Kolumbina Bencevic, Croatia Recognises $2.7 Bin Foreign Debt,
Reuters Financial Service, July 18, 1994, available in LEXIS, News Library, Arcnws
File.
168 The Badinter Commission considers that the question of war damages should
have no direct impact on the division of State property or debts for the purposes of
State succession. Badinter Commission II, Opinion No. 13, supra note 70, 32 I.L.M.
1591, 1592. The Commission relied upon the two Vienna Conventions as a basis for a
negotiated settlement between the successor States of the SFRY. See Badinter
Commission I, Opinion No. 1, supra note 13, at 1494, 1495-96; Badinter Commission
I, Opinion No. 9, supra note 13, at 1523, 1524; Badinter Commission II, Opinion No.
14, supra note 70, at 1593, 1593.
169 See O'CoNN.LL, supra note 15, at 151-52.
170 Id. at 10.
171 Ia at 152-54.
172 See Beemelmans I, supra note 1, at 86.
The concept of "odious debts" apparently has not been invoked in the
four cases subject of this Article.17 State succession should never be
used as an argument against the rights of third States, and in the three
cases of dissolution of States (USSR, SFRY and CSFR) there was no
predecessor State left which could have been held responsible for such an
odious debt. The Unification Treaty does not contain such a concept, and
the absorption of the GDR gave to the enlarged Federal Republic far
more new claims than new debts, odious or not. 74
VI. SUCCESSION TO STATE DEBT AND STATE PROPERTY: SITUATION
IN THE ABSENCE OF A NEGOTIATED SETTLEMENT
The Paris Club agreement on the Soviet Union's foreign debt took
some time to negotiate but it subsequently allowed Russia to take over
the property of the ex-Soviet Union situated in third States. An overall
settlement of the ex-SFRY's foreign debt and property is probably still
far away. Only the united Germany and the Czech and Slovak Republics
have found rapid and uncontroversial solutions to these problems. The
question therefore arises as to the legal situation between the event of
State succession - which can be, as demonstrated by the Soviet Union
and SFRY cases, a long and ill-defined process - and the moment in
which a global arrangement or a particular arrangement becomes
applicable.
The problems that can arise, that need a rapid solution, and that cannot
await a global arrangement between the States concerned are manifold.
For instance:
1) How can a successor State obtain credit in spite of the predecessor
State's outstanding and unsettled debts? Creditor States will hold all suc-
cessor States jointly and severally liable for the whole of the predecessor
State's debt, even if the predecessor State still exists. Alternatively, cred-
itors may accept transitory formulas of percentages for each successor
State. In the case of a State's progressive disintegration, however, the
common definition of a date of succession shows its weaknesses. Because
until the relevant parties reach a final settlement, the nature of the debt
may change as successor States emerge as new debtors.
2) What about individual assets and membership rights? Which succes-
sor State can claim ownership of Embassy premises or other immovable
or movable property? Who is to administer shares formerly held by the
predecessor State, who is entitled to its bank accounts, who can file
claims on its behalf? 75
173 See ERNST H. FEILCHENFELD, PUBLIC DEBTS & STATE SUCCESSION 287-88,
294-96, 329-33 (1931) for a discussion of the notion of "odious debts."
174 See Beemelmans I, supra note 1, at 86 n.32.
175 The Badinter Commission is aware of the problems arising out of different
dates of succession to the SFRY. The solution offered "that the principles and rules of
international law in general relating to State succession are supplemental and that
These latter questions have to be answered when they arise in a con-

crete case by the authorities of the third States where such assets are
situated or where a court is competent under its own private international
law to decide on such a claim. Divergent decisions are inevitable,
although in some 176cases conservatory measures like arrests or embargoes
may be sufficient.
Some cases decided by Dutch courts exemplify the problems that may
arise: 77 Dutch creditors had obtained arrests against cargo ships which
had been formerly owned by Soviet state-owned shipping lines, as secur-
ity for claims against the shipping lines or against the Russian Federation
as a successor State of the Soviet Union. The Dutch creditors sought to
enforce a State guarantee given for triangular barter agreements. The
Dutch courts ruled:
a) that Russia had succeeded to the rights and obligations of the Soviet
Union;
b) that the Dutch-Soviet shipping treaty of May 28, 1969, continued in
force for Dutch-Russian and Dutch-Ukrainian relations, but not in rela-
tion to Latvia;
c) that a merchant vessel could not claim immunity as a State vessel; and
d) that it was a question of fact for the court as to whether a ship
belonged to the State of Russia,
1 78
the Ukraine, or to a Russian, Ukrainian,
or Latvian shipping line.
Since no other successor States or entities presented any claims against
the ships, the courts did not discuss the question of whether apart from
those of the present shipping line any other total or partial ownership
rights could exist. Civil law courts always judge on the basis of the facts
and petitions presented to them, and claims and facts not introduced are
not taken into consideration. The result is that the State, entity, or unau-
thorized person best informed and most active can get hold of the assets
of the predecessor
179
State and prejudice later arrangements in spite of
Vienna II.
In a case where public and private law seem to be inextricably mixed,
the Badinter Commission took the view that the National Bank of Yugo-
slavia (NBY) "partook of the state power of the SFRY, whose dissolution
led simultaneously to the disintegration of the collective structure of the
States are at liberty to resolve the difficulties that might ensue from applying them by
entering into agreements that would permit an equitable outcome" sounds somewhat
too easy. Badinter Commission H, Opinion No. 11, supra note 70, at 1587, 1589.
176 See in detail, Beemelmans I, supra note 1, at 77-84.
177 Id. at 92.
178 Id
179 Vienna H, supra note 5, art. 18(1)(b), at 11-12 (stating immovable property
located outside the territory of the predecessor State would be attributed to the
successor States "in equitable proportions" if they do not otherwise agree).
NBY."' 8 ° The NBY's organs could therefore no longer take any legiti-
mate decisions involving the Bank's assets and these assets had to be
divided among the successor States.
In a financial agreement between the NBY, other Yugoslav banks, and
a group of international creditors led by Manufacturers Hanover Limited,
the parties should refer any disputes to the civil law courts with jurisdic-
tion under the agreement.' 8 ' The Commission refers these issues to the
appropriate courts, the event of State succession changing nothing in this
respect. 82 Thus, the Commission arrived at the same result as the Dutch
courts: problems submitted to the courts must be resolved hic et nunc,
global settlements cannot normally be waited upon before action can be
taken. The NBY's normal banking activities, outside the NBY's public
function as a monetary authority, were not to be considered as having
been affected by the event of State succession.
To overcome the legal insecurity prevailing as long as a global settle-
ment between the successor States about the debts and assets of the pred-
ecessor State is outstanding, or has not yet been approved by the creditor
States, it could be asked whether a successor State reluctant to cooperate
in such a settlement could be forced to participate. This question has not
been discussed in the case of Czechoslovakia, since here a global solution
was rapidly found. Similarly, in the Soviet Union's case, Russia's position
was predominant from the outset and Russian efforts to find a solution
were recognized. In Yugoslavia's case, the IMF formula for the distribu-
tion of State debt and State property seems to have been accepted even
by the Federal Republic of Yugoslavia (Serbia and Montenegro). The
other four successor States could not have obliged Yugoslavia to accept
this formula against its wishes.'"" However, the Badinter Commission
held that all successor States of the SFRY were obliged to cooperate in
the finding of an equitable settlement."M The Commission held that a
refusal to cooperate made a State liable for the damages caused to other
successor States. 185 These States could take non-forcible countermea-
sures in accordance with international law. The States concerned must, in
the view of the Commission, consult with each other and achieve a com-
prehensive equitable result "reserving the rights of the State or States
refusing to cooperate.'1 8 6 Such an agreement was res inter alios acta for
third States which were therefore not required to take action in pursu-
180 Badinter Commission II, Opinion No. 15, supra note 70, at 1595, 1596.
181 Id. at 1597.
182 Id. at 1598.
183 Cf. Law of Treaties, supra note 10, art. 34, 1155 U.N.T.S. at 341 (stating that
"[a] treaty does not create either obligations or rights for a third State without its
consent").
184 Badinter Commission II, Opinion No. 12, supra note 70, at 1590.
185 Id.
186 Id.
ance of such agreements. Third States could however take safeguard

measures to protect "the interests of the successor States.' ' 18 7 If "an
international agency with powers in the matter" took a decision, third 188
States could be obliged to take "interim measures of protection.',
Here the Commission gives no hints of which possible "agencies" it was
thinking.
VIi. STATE SUCCESSION TO BOUNDARIES AND
TERRITORIAL REGIMES
A. The Principle of the Inviolability of Boundaries

The principle of "recognizing and respecting each other's territorial
integrity and the inviolability of existing borders" is, together with the
rule pacta sunt servanda, probably the most important precept of interna-
tional law. We find this principle in Article 2, Paragraph 4 of the U.N.
Charter, in the Charter of the Organization of African Unity of May 25,
1963, in the Final Act of the Conference on Security and Cooperation in
Europe at Helsinki of August 1, 1975, in the Preamble of the Alma Ata
Declaration, in the Minsk Charter of the Commonwealth of Independent
States of January 22, 1993, in the "2 + 4 Treaty," in Paragraph 6 of the
Preamble of the Unification Treaty, and finally in the Guidelines for the
Recognition of New States in Eastern Europe and in the Soviet
89
Union of
December 16, 1991 of the European Political Cooperation.
B. State Succession and Boundaries and TerritorialRegimes
It is therefore generally accepted that State succession does not affect
boundaries and territorial regimes, at least insofar as third States are con-
cerned. Most authors even pretend that so-called "territorially connected
treaties" (radizierteVertrdge) always remain in force, even in decoloniza-
tion cases.' 90 The ILC, however, rightly distinguishes between bounda-
187 Id. at 1591.

188 Id.
189 U.N. CHARTER, art. 2, para 4; Organization of African Unity, Charter, May 25,
1963, art. II(1)(c), 479 U.N.T.S. 39, 72; Conference on Security and Cooperation in
Europe: Final Act, Aug. 1, 1975, art. III, 14 I.L.M. 1292, 1294; Alma Ata Declaration,
supra note 70, 311. L.M. at 149; Minsk Charter of the Commonwealth of Independent
States of January 22, 1993; "2 + 4 Treaty," supra note 147, art. 1, 29 I.L.M. at 1188;
Unification Treaty, supra note 103, pmbl., para. 6, 30 I.L.M. at 463; Guidelines for the
Recognition of New States in Eastern Europe and in the Soviet Union, supra note 17,
31 I.L.M. at 1487.
190 See, e.g., Blumenwitz, Staatennachfolge und die Einigung Deutschlands, I
VOLKERRECHTLICHE VERTRAGE 32f (1991); Graving, supra note 9, at 25-26; Hans D.
Treviranus, Die Konvention der Vereinten Nationen aber Staatensukzession bei
Vertrdgen, 39 ZAORV 259, 271 (1979); see also PAPENFUB I, supra note 2, at 227;
PapenfuB II, supra note 2, at 235. For greater detail, see Beemelimans II, supra note 1,
at 341, 352 and Beemelmans I, supra note 1, at 94.
1997] STATE SUCCESSIONIN INTERNATIONAL LAW
ries and territorial regimes and the treaties that had established them.19 '
It is the territorial situation that remains unaffected. Vienna I therefore
states "[a] succession does not as such affect:
(a) a boundary established by a treaty; or
(b) obligations and rights established by a treaty and relating to the
'
regime of a boundary."192
Vienna I continues:
1. A succession of States does not as such affect:
(a) obligations relating to the use of any territory, or to restrictions
upon its use, established by a treaty for the benefit of any territory of
a foreign State and considered as attaching to the territories in
question;
(b) rights established by a treaty for the benefit of any territory and
relating to the use, or to restrictions upon the use, of any territory of
a foreign State and considered as attaching to the territories in
question.
2. A succession of States does not as such affect:
(a) obligations relating to the use of any territory, or to restrictions
upon its use, established by a treaty for the benefit of a group of
States or of all States and considered as attaching to that territory;
(b) rights established by a treaty for the benefit of a group of States
or of all States and relating to the use of any territory, or to restric-
193
tions upon its use, and considered as attaching to that territory.
The distinction is wise, all the more so since a great many boundaries
were not fixed by treaties subject to international law, but instead were
established either by colonial powers as administrative delimitations, by
treaties otherwise completely obsolete, such as the Versailles Treaty or
the peace treaties of Westphalia (1648), or go back to times immemorial.
Hence the doctrine of uti possidetis iuris. There is no doubt that the
boundary between Cameroon and Nigeria is the one fixed by the German
and British Empires in a number of treaties and protocols, but are these
new African States therefore to be considered as successor States to the
colonial powers and 94bound by these treaties in all their details by virtue
of State succession?1
Res transit cum onere suo is the principle underlying the stability of
boundaries and territorial regimes in cases of State succession. And the
19' Report of the ILC, supranote 9, at 196, 208. Succession is limited to "the legal
situation of the regime resulting from the dispositive effects of the treaty rather than
to succession in respect of the treaty." Id. at 206. Article 1 of the "2 + 4" Treaty also
confirms "the existing border" and not the border treaties. "2 + 4 Treaty," supra note
147, art. 1, 29 IL.M. at 1320.
193 Id. art. 12, at 9.
194 Critical to the thesis is that territorially connected or "real" treaties always
remain in force as well. O'Connell, supra note 2, at 735.
Vienna Convention on the Law of Treaties expressly excludes the appli-

cability of the clausula rebus sic stantibus to treaties establishing a
boundary.195
C. Boundaries with Third States and between Successor States

There can be no doubt that State succession cannot affect boundaries
and territorial regimes in the relationship between a successor State and a
third State. However, disputes are frequent between successor States or
between a predecessor State and a successor State having separated from
it. Thus, the Federal Republic of Yugoslavia (Serbia and Montenegro)
refused to recognize the other four successor States of the SFRY, espe-
cially in regard to their boundaries. The Badinter Commission in its
Opinion No. 3 of January 11, 1992, not only ruled that the external
boundaries had to be respected, but that the boundaries between Croatia
and Serbia, Bosnia and Herzegovina and Serbia, and other States could
only be changed by mutual consent.' 9 The former internal boundaries
had become boundaries protected by international law. This followed, in
the view of the Commission, from the principle of respect for the territo-
rial status quo and from the doctrine of uti possidetis, all the more so
since the constitution of the SFRY had established that the boundaries of
the Republics could not be changed without their consent. 1 97 Boundary
changes by force were without legal effect. The uti possidetis doctrine
makes it superfluous to rely upon boundary treaties as a legal basis and
only confirms the factual possession of a territory. The Badinter Com-
mission consequently renounced any investigation into the genesis of the
intra-Yugoslav boundaries. 198 Of course if there has been a treaty it can
and should be used as proof of the exact delimitation of the boundary, as
is being done in the border dispute between Cameroon and Nigeria.'9 9
The CIS States have guaranteed each other the respect of their bound-
aries, that is, the last internal, administrative boundaries of the defunct
USSR. And yet there are boundary conflicts, such as the Russian-
Ukrainian dispute about the Crimea. Here the solution seems obvious:
the last internal boundary is the basis which can only be changed by
agreement.
The dispute between Russia and Estonia is quite different. In this cir-
cumstance, Russia wants to maintain the last internal boundary between
the two Socialist Soviet Republics, whereas Estonia demands to return to
the boundary of the Peace Treaty of February 2, 1920, between Estonia
195 Law of Treaties, supra note 10, art. 62(2)(a), 1155 U.N.T.S. at 347.
197 Id.; see also YUGO. CONST. art. 12 (1946).
198 Badinter Commission I, Opinion No. 3, supra note 13, 31 I.L.M. at 1500.
199 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v.
Nig.), Communique No. 94/13, June 20, 1994.
and the Russian Socialist Federal Soviet Republic. 200 Estonia can invoke
its universally accepted thesis, contested only by Russia, that it had never
legally been part of the Soviet Union but instead the victim of an occupa-
tion contrary to international law. Therefore, any subsequent intra-
USSR changes are irrelevant with respect to Estonia.
VIII. STATE SUCCESSION AND ITS IMPACT ON THE NATIONALITY OF

NATURAL AND LEGAL PERSONS
If one State replaces another "in the responsibility for the international
relations of a territory," this very likely affects the inhabitants of this ter-
ritory, be they natural or legal persons. Nationality in this context means
to be under the personal sovereignty of a given State. In cases of dual or
multiple nationality of a person, it is usually the nationality of the State
where the person is domiciled which prevails in practice. Not all States
recognize dual nationality - the claim of another State to intervene on
behalf of a given person possessing that State's nationality. State succes-
sion does not result in an automatic change of nationality as there is no
rule of treaty or customary international law to that effect. Yet some suc-
cessor States oblige the inhabitants of their new territories to choose the
successor State's nationality or leave the territory. "Ethnic cleansing" is
the most drastic method to deal with this issue, and it has a long tradition.
The successor State on whose territory the person in question actually
stays has the main responsibility for solving problems that may arise in
this context. However, other States, especially the predecessor State or
another successor State, may be obliged to receive persons expelled or
persecuted by that State or may claim a right to protect them.
There are frequently real conflicts over nationality. Yet, the ILC's
Rapporteur on this subject sees at present no prospect for international
codification and instead recommends the drawing up of guidelines or
minimum standards for the automatic attribution of nationality.2 0 '
A. Dissolution of Federations:The Cases of the CSFR, the USSR and

the SFRY
In all three of these Federations, a natural person had the citizenship of
the Federation and the citizenship of one of the federated Republics.20 2
Both were indicated in the passports. Nobody could have the citizenship
of two or more Republics. Many people now live in a successor State
other than the one to which they belonged according to their passport.
200 Estonia and Soviet Republic of Russia, Feb. 2, 1920, 11 L.N.T.S. 29.
201 Mikulka, supra note 6, at 33. For a discussion of standards already imposed
by some instruments on human rights, see U. Fastenrath, Das Recht
der Staatensukzession, 35 BERICHTE DER DEUTSCHEN GESELLSCHAFT FOR
VOLKERRECHT 9, 27-29 (1996).
202 Beemelmans I, supra note 1, at 97 n.64.
Currently, when renewing or prolonging their passports people are

obliged to choose between the Republic to which they once belonged or
the Republic in which they are now domiciled. Recognizing dual nation-
ality could be a solution for many problems for individuals in this context.
Russia and Kazakhstan seem to have concluded an agreement on Febru-
ary 20, 1995, in which Kazakhstan allows its citizens to acquire Russian
nationality without the loss of the Kazakh nationality. On the other
hand, dual nationality can be a burden for the relations between succes-
sor States because of the legal and political recognition of ethnic minori-
ties which can claim the protection of their State of origin against the
State of their domicile. But a negotiated agreement between the succes-
sor States concermed duly respecting the human rights of individuals and
minorities is probably preferable to unilateral measures. The draft treaty
of the International Conference on Yugoslavia, for example, expressly
admits dual nationality
B. The Reunification of Germany

No problems presented themselves in the case of Germany's reunifica-
tion. The Unification Treaty does not even mention the question of dual
nationality. According to the Fundamental Law of the Federal Republic
of Germany, the citizens of the GDR were "Germans in the sense of
Article 116."' 9' 3 On October 3, 1990, this Fundamental Law entered into
force on the territory of the former GDR,"0 4 and the other federal laws
were extended to the new Lander.2 0 5 Therewith the separate GDR citi-
zenship disappeared and there is no Lander citizenship in addition to the
German citizenship.
IX. OVERALL CONCLUSIONS
1. Summing up, State succession affects in different degrees:

a) the States directly concerned including the predecessor State, if it sur-
vives, and the successor States;
b) third States, as parties to bilateral treaties, creditors, debtors, States
where assets are situated or where persons affected are domiciled, or
States called upon to protect their citizens living in a successor State, etc.;
c) the "community of international law" parties to multilateral treaties
interested in maintaining the territorial coverage of the treaty in spite of
State succession events, but also natural and legal persons concerned by
multilateral "law making" treaties.
aa) The States directly concerned have to settle their problems through
direct negotiations leading to overall agreements in all fields. The Unifi-
cation Treaty and the agreements between the Czechs and Slovaks show
203 BVerfG 21.10.1987, BVerfGE 77, 137-70.

204 Unification Treaty, supra note 103, art. 3, 30 I.L.M at 464.
205 I& art. 8, at 469.
that this is possible. The CIS also seems to be on the right path to finding
a network of multilateral and bilateral agreements covering a whole
range of problems. International law can only offer guidelines for such
agreements and interim solutions.
bb) Third States should not be affected; this principle seems to be gener-
ally accepted. If Vienna I and H grant "newly independent States," that is
States born out of the decolonization process, the privilege of a "clean
slate" as to bilateral and multilateral treaties and debts of the predecessor
State, the idea is that third States still can rely on the predecessor State.
Yet this privilege was the main reason for the very low degree of accept-
ance of these two conventions. And in cases of disintegration of a State
such as the USSR, the SFRY, and the CSFR, there is no predecessor
State left. Here, Vienna I and II properly opt for continuity of treaties
and State debt.
cc) If one takes seriously the admirable efforts spent on international law-
making, be it in the fields of human rights, warfare and armed conflicts,
trade, private international law, traffic, telecommunications, etc., one can-
not but hope that events of State succession may neither exclude territo-
ries from the scope of such lawmaking treaties nor create periods of legal
insecurity. Nor is it tolerable that boundaries or territorial regimes be
questioned because of events of State succession.
2. The theory of continuity is just the starting point. If a successor State
or its treaty partners think that a certain treaty is no more adequate to
changed circumstances they can renegotiate it, abrogate it, denounce it,
invoke the clausula rebus sic stantibus, etc. The Vienna Convention on
the Law of Treaties gives all the necessary remedies. Debts can be rene-
gotiated, rescheduled, etc.
3. The four cases of State succession contemplated (and future cases
imaginable) thus show that theory and practice on the international law
of State succession should and could aim at the following goals: to assure
a smooth transition toward the integration of the successor States into the
international community; to minimize the effects of State succession on
third States and on natural and legal persons both citizens of successor
States and third States; and not to disturb the process of international law
making. Clean slate doctrines or legal agnosticism advocating worldwide
consultation processes leading to case-by-case settlements lead to very
long periods of legal insecurity and frustrate the efforts toward a world-
wide rule of law.

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Ambassador to the Republic of Madagascar. Dr. Jur., Head of the Treaty

3. Multilateral GDR Treaties ........................ 100

matically. Germany reunified, while the Soviet Union, Yugoslavia and

A. Attempts to Codify or Legislate the Law of State Succession

Rapporteur recommended a report to provide illustrations for resolving

A. What is State Succession?

1495 [hereinafter Badinter Commission I]. The Badinter Commission, the

definition of the Vienna Conventions correctly reflects the general con-5

16 D.P. O'CoNNELL, THE LAW OF STATE SUCCESSION 1-2 (1956).

B. Date of State Succession

III. STATE SUCCESSION AND MEMBERSHIP IN INTERNATIONAL

Vienna I deals with State succession and membership in international

predecessor State's membership in international Organizations] were

A. Russia and the Soviet Union

Federation (RSFSR) with the support of the countries of the Common-

34 Agreements Establishing the Commonwealth of Independent States, Dec. 8,

membership and to undergo the statutory admission procedure. Admis-

D. Membership in InternationalOrganizationsand Rights and Debts:

A State adhering to the Bretton Woods Agreement must not only

41 For a list of conventions, see 1 INTERNATIONAL LABOUR ORGANISATION,

sion").4 5 Nevertheless, it denied membership to the Federal Republic of

IV. STATE SUCCESSION TO TREATIES

For the purpose of this Article, multilateral treaties, as compared to

45 Paul R. Williams, State Succession and the InternationalFinancial Institutions:

A. State Succession to Multilateral Treaties

As previously discussed, multilateral treaties establishing an interna-

53 Treaty on Conventional Armed Forces in Europe, Nov. 19, 1990, 30 I.L.M. 1

60 Document of the States Parties to the CFE Treaty, supranote 58.

arts. 76-80, at 350-52.

Federal Republic of Yugoslavia (Serbia and Montenegro) has not

treaty. Succession to a treaty would then depend exclusively on the free-

72 Vienna I, supra note 4, arts. 17(1), 24(1), at 12, 17.

as a declaration of accession effective either from the notification date or

former Yugoslavian citizens abroad are not entitled to the benefits of

no depositaries circulating information and publishing status lists. The

85 See Alma Ata Declaration, supra note 70, 31 IL.M. at 149.

2. General Declaratory Agreements

88 Germany concluded Joint Declarations with special paragraphs with Azerbaijan,

91 Bekanntmachung fiber die Fortgeltung der deutsch-jugoslawischen Vertr5ge fin

nineteen successor States except Turkmenistan and, of course, the three

"First World," to law, and to an international order based on globally

C. The Unique Case of the Reunification of Germany

Federal Republic of Germany had diplomatic relations. 10 7 The articles

2. Treaties of the Federal Republic of Germany

1155 U.N.T.S. at 341.

3. Multilateral GDR Treaties

As to multilateral GDR treaties, Article 12, Paragraph 3 of the Unifica-

inzake de gevolgen van de Duitse eenwording voor de bilaterale verdragsrelaties, met

4. Treatment of Bilateral GDR Treaties before Reunification

Paragraphs 1 and 2 of Article 12 of the Unification Treaty are even less

5. Bilateral GDR Treaties after Reunification

In fact, in May 1990, the GDR Ministry of Foreign Affairs circulated a

185, 198, 201, 204, 220, 325, 336 (1991).

eral treaties, this question was only to be answered "following consulta-

127Id. art. 12(2), at 472.

132 PAPENFuB I, supra note 2, at 163-67.