KAZAKHSTAN: A CASE STUDY IN STATE SUCCESSION TO INVESTMENT TREATIES

Two arbitral cases were initiated against Kazakhstan on the basis of the 1989 Agreement between the Government of Canada and the Government of the Union of Soviet Socialist Republics for the Promotion and Reciprocal Protection of Investments. The tribunal of the first case (World Wide Minerals v. Republic of Kazakhstan) determined that Kazakhstan was a legal successor to the Canada-USSR BIT and found breaches of fair and equitable treatment. While in the second case (Gold Pool Limited Partnership v. Republic of Kazakhstan) the tribunal rejected the claimant’s argument that the Canada-USSR BIT was applicable to Kazakhstan. Since the decisions in these two cases have not been published, there is currently speculation that investors from other states besides Canada can take advantage of the Soviet Union’s treaties, even if there is no treaty in force with Kazakhstan. Thus, the aim of this paper is to show the legal framework and practice for treaty-making related to investment in Kazakhstan both pre-and post- collapse of the Soviet Union. In particular, this paper examines the relevant international treaties, diplomatic notes, intergovernmental-level statements regarding the succession to the USSR treaties, and the USSR and Kazakh Soviet Socialist Republic investment legislations. It also provides recommendations for the future development of state succession and investment treaties.

4. The actors in the international legal system

International society is first and foremost a society of individual sovereign states. However, states are by no means the only relevant actors in international law. In fact, one of the consequences of the post-1945 expansion of international law into areas that had traditionally been of limited international interest has been the increasing legal importance of a variety of non-state actors, most notably international organizations and individuals. This chapter introduces the various actors in the international legal system that possess rights, powers and obligations in international law. It provides a thorough presentation of statehood and the criteria for the creation of new states, and briefly discusses the (limited) legal significance of recognition. It discusses the modes by which a state can acquire title to new territory; the issues of state succession and state extinction; and the legal personality of territorial entities other than states, international organizations, individuals and additional actors in the international legal system.

Decolonization and Sovereign Debt

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.

We Owe You Nothing

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.

International Law and the 2020 Amendments to the Russian Constitution

This Current Development Essay discusses the international legal implications of constitutional amendments adopted in the Russian Federation by an “all-Russian vote,” a quasi-referendum from June 25 to July 1, 2020. The most important of these amendments gives the Russian Constitution priority over decisions made by international courts and treaty bodies. The amendments also address Russia's state succession to the Soviet Union. Another provision protects Russia's territorial integrity. The Essay discusses the background to these amendments, their content, and their significance for international law.

Principles and Pragmatism in State Succession: Bargaining in the Economic Affairs Commission of the Tartu Peace Conference

The conventions of legal argumentation have the tendency to reinforce the notion that the development of international law is a principled affair. This article will examine the elaboration of one particular treaty – the Tartu Peace Treaty signed between Estonia and Soviet Russia in 1920 – in order to see to what extent it lends support to the idea that treaties grow out of principles. The Tartu Peace Treaty perfectly illustrates the point that the contents of a treaty can be entirely indeterminate with regard to their underlying principles. My conclusion is not that, in this case, pragmatism triumphed over principles: that the negotiating parties refrained from debates over abstract principles and took the more pragmatic route of finding an array of concrete solutions. Whilst it is true that the end result – the Treaty as it finally stood – was detached from any single foundational idea, it was not obtained by putting principles aside. The Tartu Peace Conference rather offers us a particularly good example of how principles can be used as rhetorical ploys.

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

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.