scholarly journals Decolonization and Sovereign Debt

2021 ◽  
pp. 213-231
Author(s):  
Michael Waibel
Keyword(s):  
International Law ◽  
Sovereign Debt ◽  
Complex State ◽  
Independent State ◽  
Successor State ◽  
State Succession ◽  
The Law

The complex state succession cases arising from decolonization generated intense debates within legal circles. This chapter examines the tension between two stylized schools on state succession into debt: the universal succession and clean slate theories. Universal succession refers to the automatic and complete assumption of the colonial power’s rights and obligations by the newly independent state as they relate to its territory. According to the competing clean slate theory, the former colonial power’s obligations (including debts) as they relate to the territory of the newly independent state are extinguished on independence. Because these obligations are personal to a state, they lapsed on independence. The successor state thus starts life with a clean slate. This chapter provides historical insights into this legal controversy by focusing on the two scholars and practitioners of international law who embodied these two schools of thought, Judge Mohamed Bedjaoui and Professor Daniel Patrick O’Connell. We show how the fundamental disagreements between the two schools (and their radically different implications for the conditions under which colonial entities can achieve independence) have left the law on state succession in flux. Ultimately, the solutions adopted in the decolonization context and in later succession disputes remained highly case-specific and typically involved an agreement between the states concerned.

The New States and International Law (1974)

2017 ◽  
Author(s):  
C. H. Alexandrowicz
Keyword(s):  
International Law ◽  
Sufficient Evidence ◽  
Economic Relations ◽  
Legal Principles ◽  
Legal Rules ◽  
The Family ◽  
New States ◽  
State Succession ◽  
The Law ◽  
Orthodox View

This chapter examines some of the legal problems resulting from the entry of the ‘new’ states (mainly the Afro–Asian countries) into the family of nations. The orthodox view is that such states have no choice as to the law which shall apply to them since they are born into the existing international order and must accept its tenets. However, the practice of the ‘new’ states does not supply sufficient evidence of such a fait accompli. There are legal rules that they tend to reject as well as rules they wish to have included. Among the existing principles that ‘new’ states refuse to accept or that they accepted with far-reaching reservations are the legal principles relating to economic relations. Other branches of international law that are under revisionist pressure from the ‘new’ states are the law of state succession and the law of the sea.

Case Analysis: The Gabčíkovo-Nagymaros Case Seen in Particular From the Perspective of the Law of International Watercourses and the Protection of the Environment

1998 ◽  
Vol 11 (2) ◽  
pp. 287-320 ◽  
Author(s):  
Johan G. Lammers
Keyword(s):  
International Law ◽  
Critical Analysis ◽  
Case Analysis ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Rules And Principles ◽  
The Subject ◽  
State Succession ◽  
The Law

The subject-matter of this article is the Judgment of the International Court of Justice in the Gabčíkovo-Nagymaros case. Following an exposition of the relevant facts, it continues with a critical analysis of the Judgment of the Court. In addition to a brief analysis of the issues involving the law of treaties, the law of state responsibility, the law of state succession, and the treaty obligations of Hungary and Slovakia relating to the use of Danube water and the protection of its environment, it focuses on the rules and principles of general international law concerning the use of international watercourses and the protection of the environment that were applied by the Court in this case.

The Forty-Seventh Session Of The International Law Commission

1996 ◽  
Vol 90 (1) ◽  
pp. 106-115
Author(s):  
Robert Rosenstock
Keyword(s):  
United Nations ◽  
International Law ◽  
State Responsibility ◽  
Draft Code ◽  
Peace And Security ◽  
State Succession ◽  
The United Nations ◽  
The Law ◽  
International Law Commission ◽  
Law Commission

The International Law Commission of the United Nations held its forty-seventh session from May 2 to July 20, 1995, under the chairmanship of Pemmaraju S. Rao of India. The Commission continued its work on existing topics and considered aspects of the Draft Code of Crimes against die Peace and Security of Mankind, state responsibility, and liability for injurious consequences arising out of acts not prohibited by international law. The Commission began work on the two new topics of “state succession and its impact on the nationality of natural and legal persons” (“nationality“) and “the law and practice relating to reservations to treaties” (“reservations“) and made a recommendation as to two additional topics for its future agenda.

scholarly journals We Owe You Nothing

2021 ◽  
pp. 189-212
Author(s):  
Grégoire Mallard
Keyword(s):  
International Law ◽  
Sovereign Debt ◽  
Public Law ◽  
Global Movement ◽  
Independent States ◽  
Un General Assembly ◽  
State Succession ◽  
The 1960S ◽  
International Law Commission ◽  
Newly Independent States

This chapter analyses how the context of decolonization gave rise to a new discourse in international public law on the legitimacy and legality of sovereign debts contracted during the colonial times. It focuses on the international doctrine of state succession created by ‘third-world’ legal scholars within the context of the United Nations (UN), at the UN General Assembly (UNGA), and the International Law Commission (ILC). This chapter focuses in particular on the twenty-year-long effort started in the 1960s by the ILC to codify the doctrine on the law of State Succession in respect to State Property, Archives and Debts, which led to the adoption of the so-named Convention by a majority of newly independent states in 1983. In doing so, it highlights the tools that international public law gave to the global movement in favour of the cancellation of sovereign debts contracted during colonial times. The chapter is based on archival research as well as extensive interviews with the concerned lawyers, in particular, with foremost foreign policy architect and prominent international law scholar Mohamed Bedjaoui (1929–) who opposed the continuity in sovereign debt obligations that former empires wanted to impose on newly independent states.

Nationality, State Succession, and the Right of Option: The Case of Québec

1999 ◽  
Vol 36 ◽  
pp. 151-180
Author(s):  
Gibran van Ert
Keyword(s):  
Human Rights ◽  
International Law ◽  
The State ◽  
Human Right ◽  
State Practice ◽  
State Succession ◽  
The Law ◽  
The Right ◽  
Nationality Law

SummarySome advocates of Québec separatism claim that Quebecers could retain their Canadian nationality following Québec’s secession from Canada. This article examines international nationality law to test the accuracy of that claim. A device known as an option exists in international law as a means of allowing individuals to determine for themselves the effect of state succession upon their nationality. This article considers the place of options in the law of state succession, both as it now stands and as proposed by the International Law Commission’s Draft Articles on the Nationality of Natural Persons in Relation to the Succession of States, 1997. Four possible arguments in favour of a Québécois option are given, the most convincing of which arises by analogy to state practice in the use of plebiscites. This argument suggests that international law would require the state of Québec to grant all Canadians affected by Québec’s secession a right to opt for Canadian nationality instead of Québécois nationality with the caveat that those opting to retain Canadian nationality could face expulsion from Québec. Finally, the article suggests that the development of human rights in international law should extend to recognize a true human right of option in cases of state succession. Regrettably, the ILC Draft hinders, rather than encourages, this desirable development.

Uti Possidetis Iuris in the Twenty-First Century: Consensual or Customary?

2015 ◽  
Vol 22 (4) ◽  
pp. 511-532 ◽  
Author(s):  
Arman Sarvarian
Keyword(s):  
Nineteenth Century ◽  
Twentieth Century ◽  
International Law ◽  
First Century ◽  
Customary International Law ◽  
State Succession ◽  
The Law ◽  
Twenty First Century ◽  
Universal Rule

The doctrine of uti possidetis iuris provides that, in the succession of States arising from secession or disintegration, territorial title is delimited between successors according to internal borders at the time of succession. Although it is commonly accepted that the concept originated in the nineteenth-century successions in the Spanish Americas and was generally adopted by the twentieth-century decolonization successors in Africa, international law scholars have been divided on whether the doctrine has thereafter evolved into a universal rule of customary international law that presumptively binds successors but is rebuttable by common agreement. This article argues that the ‘presumption’ of binding application is not supported by precedent and is inconsistent with the principle of consent. Rather, the law of State succession is neutral on the delimitation of successors’ frontiers: uti possidetis iuris is one of several methods of territorial delimitation that may be adopted by their common consent.

Human Rights Treaties and the Law of State Succession in the Event of Secession

2020 ◽  
Vol 23 (1) ◽  
pp. 340-354
Author(s):  
Naiade el-Khoury
Keyword(s):  
Human Rights ◽  
Successor State ◽  
Human Rights Treaties ◽  
State Succession ◽  
The Law

International practice indicates a tendency that the obligations under human rights treaties continue under the law of State succession. The successor State is thus bound to respect the rights previously granted under a human rights treaty to the inhabitants of a territory it has assumed responsibility for. However, the successor State is not automatically party to the human rights treaty which its predecessor was a party to. As such, the continuity of human rights obligations has not occurred ipso iure. Yet, States have acquiesced to the jurisprudence of the Human Rights Committee and accepted their human rights obligations retroactively upon the ratification of the human rights treaties.

scholarly journals 30 Years of Lithuania’s Restored Independence: A Coastal State’s Prescriptive Jurisdiction over Inland Waters

Teisė ◽  
2020 ◽  
Vol 117 ◽  
pp. 64-78
Author(s):  
Indrė Isokaitė-Valužė
Keyword(s):  
European Union ◽  
International Law ◽  
Law Of The Sea ◽  
Inland Waters ◽  
The European Union ◽  
Independent State ◽  
Legal Development ◽  
The Law ◽  
The Republic

The article aims at comprehensively and systematically revealing the general transition of the regulation of the inland sea waters of the Republic of Lithuania from the restoration of an Independent State of Lithuania in 1990 until now. The basic stages and trends of the legal development are emphasized in light of the International Law of the Sea and the Law of the European Union and general findings on the compliance thereto in the main fields are made.

The New Terrain of International Law

2014 ◽  
Author(s):  
Karen J. Alter
Keyword(s):  
International Law ◽  
Case Studies ◽  
Domestic Politics ◽  
Political Influence ◽  
The Political ◽  
International Courts ◽  
Constitutional Review ◽  
Delegation Of Authority ◽  
The World ◽  
The Law

In 1989, when the Cold War ended, there were six permanent international courts. Today there are more than two dozen that have collectively issued over thirty-seven thousand binding legal rulings. This book charts the developments and trends in the creation and role of international courts, and explains how the delegation of authority to international judicial institutions influences global and domestic politics. The book presents an in-depth look at the scope and powers of international courts operating around the world. Focusing on dispute resolution, enforcement, administrative review, and constitutional review, the book argues that international courts alter politics by providing legal, symbolic, and leverage resources that shift the political balance in favor of domestic and international actors who prefer policies more consistent with international law objectives. International courts name violations of the law and perhaps specify remedies. The book explains how this limited power—the power to speak the law—translates into political influence, and it considers eighteen case studies, showing how international courts change state behavior. The case studies, spanning issue areas and regions of the world, collectively elucidate the political factors that often intervene to limit whether or not international courts are invoked and whether international judges dare to demand significant changes in state practices.

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