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State Succession in Respect of Human Rights Treaties
Menno T. Kamminga 1
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I. Introduction
In the absence of consistent State practice, State succession in respect of treaties has long been a rather uncertain field of international law. For example, while the 1978 Vienna Convention on Succession of States in Respect of Treaties provided, in accordance with the advice given by the International Law Commission, that a new State is bound by the international agreements binding on the predecessor State,2 the 1987 Restatement (Third) of the Foreign Relations Law of the United States took the opposite view.3 Meanwhile, scholars involved in the drafting of these instruments readily acknowledged that these standards were very open to criticism.4 One of the foremost authorities on the subject even observed that `State succession is a subject altogether unsuited to the process of codification.'5
As a result of the collapse of the Soviet Union, Yugoslavia and Czechoslovakia during the early 1990s, and the planned transfer of sovereignty over Hong Kong in 1997, the situation has now radically changed. State practice on sucession to international treaties involving 23-odd successor States has suddenly become extremely vibrant. Fundamental questions that were until recently debated only among a limited circle of scholars have been brought into the political arena. Now that the dust has settled somewhat, the time seems ripe to try and draw some conclusions from this outburst of international activity. In particular, it now seems time to face the question of whether the standards included in instruments such as the Vienna Convention and the Restatement (Third) accurately reflect customary international law.
Within the wider area of State succession, the subject of State succession in respect of human rights treaties is of particular interest. From a policy point of view, its importance lies in the fact that massive human rights violations often occur precisely during the periods of political instability which tend to accompany State succession. In such circumstances there is an urgent need to know the precise extent of the international obligations which are incumbent on the successor State. This applies not only to the primary obligations (the international human rights standards which are in force) but also to the secondary obligations (the reporting obligations, the complaints procedures and, more generally, the rules of accountability). From a scholarly point of view, the importance of the subject of State succession in respect of human rights treaties lies in the fact that there is an above average amount of State practice in this area. This is because of the interaction which can frequently be observed between States, political organs of international organizations, and the supervisory bodies established under the relevant human rights treaties. Conclusions about the law as it stands can therefore be drawn with more confidence than with respect to other categories of treaties.
The key question explored in this article is whether a successor State is bound by the obligations contained in international human rights instruments that were binding on the predecessor State or whether it is free to accept or not to accept those obligations. This question is considered both from the point of view of the international community and from the point of view of successor States themselves. After some introductory remarks about the system of the Vienna Convention and the special character of human rights treaties, the article first examines the attitude adopted by international organizations and treaty monitoring bodies. It then analyzes the attitude towards human rights treaties adopted by the successor States. While the emphasis is on human rights treaties stricto sensu reference will also be made to humanitarian treaties in a wider sense, i.e. treaties on international humanitarian law and international labour law.
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1 Senior Lecturer in International Law, Erasmus University,
Rotterdam. The author gratefully acknowledges the research assistance provided
by Melanie Tijssen.
2 Art. 34(1), Vienna Convention on Succession of States in Respect of
Treaties, adopted 22 August 1978, not yet in force, reproduced in 17 ILM (1978)
1488.
3 Restatement (Third) of the Foreign Relations Law of the United
States (1987), § 210(3), Reporters' Note 4.
4 See, e.g., I. Sinclair, `Some Reflections on the Vienna Convention
on Succession of States in Respect of Treaties', in Essays in Honour of Erik
Castrén (1979) 149, 153; K. Zemanek, `Die Wiener Konvention
über die Staatennachfolge in Verträge', in H. Miesler et al. (eds),
Festschrift für Alfred Verdross (1980) 719, 735; D. Vagts, `State
Succession: The Codifiers' View', 33 Va.J.Int'l L. (1993) 275,
294-295.
5 D.P. O'Connell, `Reflections on the State Succession Convention',
39 ZaöRV (1979) 725, 726.
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