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  1. Dusko Dimitrijevic Dusko Dimitrijevic says:

    Every dissertation on the succession of States, arranged in a methodological manner, begins its sequence from theoretical discussions about a State and law in general.
    It regards also this scientific study. In such context, the first part of this study has given a great importance to the theoretical examination of a State succession concept, not in an aprioristic way, but in a conjugation with a general Theory of State and Law. In conformity with the ontology that everything gets changed but nothing lost (omnia mutantur, nihil interit), the international law has anticipated analogically the private and legal solutions connected with the legal subject’s heredity. However, in contrast to the analogically implemented roman general notion about universal succession of an individual personality (successio in universum), the modern public law bears a stressed necessity of the limitation of the legal continuity of international legal personality. The study of causation which exists between the modification of State subjectivity and the factual alteration of territorial sovereignty, will lead the author to the prejudicial examination of the concept of identity and continuity of States. Being linked directly with the process of the birth and dieing of States which, as a rule, take place in tumult historical time periods, the problem of State identity and continuity, as a problem of a State and legal status in general, extends also outside the sphere of internal legal order, in political and social sphere of international existence. In concreto, international law plays the primary role in the legal evolution of the process. Identity of States and the continuity of international rights and liabilities, means the continuity of a State subjectivity as a legal State property to be a bearer of rights and liabilities within international legal order. The continuity and identity of States refers to the question, when a State may demand all rights on the basis of identity and when it could be responsible for liabilities on the same basis? Problem of State identity and continuity which appears always when the further existence of legal order or government gets endangered originates from the concept of a State. For certain cases (for example: territorial changes, revolutions and war occupations) the international law established rules which eliminate every suspicion regarding the further existence of identity of States. Explanation that one subject of international law doesn’t cease to exist at dynamic changes of State and legal composition in relation to internationally undertaken liabilities, observing timely and consequently the territorial sphere of the validity of legal order (variabilité des limites territoriales des traites) represents, pursuant to the explanation of legal practice, consecrated principle of international and legal continuity of State according to which the States outlive their governments regarding internationally accepted rights and internationally undertaken liabilities (la succession de gouvernements). Therefore, a political discontinuity doesn’t lead always to a legal interruption in the law of State succession.

    In a historical and logical sequence of reexamination, the determination of inexistence of predeceasing State identity, leads toward its succession, that is to say, it leads toward the transition of its international rights and liabilities to the State successor, so that the inexistence of State identity could be formulated as a conditio sine qua non for the succession of States. In legal and logical sense, the succession of States is also a substitution of a State subject and the continuity of rights and liabilities (Diskontinuität der Staatsperson und Kontinuität des Rechtszustandes). The nature of such exchange will remain the subject of numerous legal and philosophical controversies. Explication of legal nature of State and legal succession has been conditioned directly by philosophical and legal explanations which concern the very State and its sovereignty. In positive jurisprudence about succession of States, based upon the a priori and a posteriori judgments about State sovereignty, the ground for an ideal importance of State and legal order in space is certainly, the establishment or extension of one State sovereignty with the timely conditioned exclusion of another State sovereignty (expulsio). It leads to the logical explanation that sovereignty gets changed in legally formulated modalities, but not transferred. In conceptual sense, the problem of States succession has been divided into two groups of theoretical examinations.

    Theories of continuity are grounded, first of all, upon the reception of conceptual solutions from the Roman past, that is to say - upon the Theory of universal succession, linked, after the “new theory” protagonists, for the State and legal Theory of social contract (contrat social). Through the description of State organic Theory, the concept grew synthetically in the explanation of the substitution of social subjectivity, conceived in scientific and sociological sense, where the substitution maintains the property and legal subjectivity. As the product of Hegelian etatistic philosophy, the Theory of bringing itself in a self-liability, a State will condition the continuity of international rights and liabilities by the autonomy of State successor’s will, what will be demonstrated, in international relationships, trough the form of autonomous obedience (Selbstbeschränkung).

    Theories of discontinuity were the negation of previous comprehensions. Insisting upon legal discontinuity means a legally formed justification for opportunistic behavior of States in international community. Emphasizing now the objective law, or, in the other words, the compulsion of heteronomy, now the subjective right of States, that is to say, the principle of the States will autonomy, will reflect the incoherence of negativistic theories. As the international law remained based mainly upon the concept of a State until today, and the State concept based upon territorial sovereignty as upon a fundament for which alteration are linked the consequences which make the subject of the law of States succession, the most important task of checking the theoretical approaches to a State territory for the reason of determine the conexity that rests between territorial changes and succession of States, seemed to be indispensable. The present study represents only the most important territory theories. Along with the development of States, also the transformations in theoretical discussions about a State territory have been carried out. A State is theoretically justified at first as an object, than as a subject and, at last, as a social relationship. In the Theory of territory, it influenced directly the construction of Theory of territory as of a property of as of an object (Eigentumstheorie) and, after that, to the creation of attributively-qualitative Theory (Eigenschafttheorien), spatial Theories (Raumtheorien), and, at last, the Theory of competence (Kompetenztheorien). The parallelism, constructed in the examination of State sovereignty and territory, through monistic and dualistic discussions about State-based and international law, brought to the rejection of archaic solutions typical of past times. In order both to reconcile the facts regarding the existence of controlling a territory and private property and to eliminate legal illogicalnesses at the changes of territorial sovereignty which were observed firstly through the dominial prism of a property transfer, and then through the modification of identity or substitution of entity, the most acceptable for modern international law seemed to be - the Theory of competence.

    Every territorial change could be easily explained by its anticipation, because it assumes the change of State competences in space, what coincides genuitively with the standpoint that the sovereignty gets changes and not transferred or renounced. Hypothetically, a change of sovereignty in space causes temporally a legal following of legal subjects that means sedes materiae - the law of State succession. International law, as an advanced legal order in conformity with the concept about a relative effect of State sovereignty, regulates indirectly the division of competences and executes the supervision of their State performed realization (Völkerrechtsunmittellbarkeit).

    Study of theoretical approaches to a territory brought to the knowledge that the State succession idea in a traditional sense doesn’t coincide always with the concept of succession in international law. It results from the standpoint that the succession of States means the legal succession, constituted by territorial changes on the basis of a certain legal norm (la causa juridique). International law standardizes objectively the behavior of States through a legally formulated concord, so that at the analysis of judicial succession (de iure succession) the territorial changes (de facto succession) represent a previous legal issue. That dualism has been logically investigated through relation between cause (causa efficiens) and condition. So, also the territorial changes must be in synchronization with international law, so that from them, as from a cause, appear legally valid consequences. Relation among fact cities and criteria in law has been solved always in favor of criteria, by the principle, ex injuira ius non oritur. The opposite acting in international relationships, leads to a metamorphosis of a force of law to the law of force (jus est quod jussum est). Acknowledgment of the possibility of appearance of legal consequences of illegal succession (unrechte Staatennachfolge) after the principle, ex facto ius oritur, and directly also the existence of de facto entities, suo vigore, denies the existence of objective legal order. The international law does not solve the problem of the survival of legal order. The survival of subjective rights will depend mostly upon the nature of rights, philosophical and ideological approach and not upon the positively brought decision.

    In the analysis of the succession of States we remained on the study subject, that is to say, on the succession of State property, for what it was formerly indispensable to determine the general concept of property, as of a correlative and complementary concept with the concept of property. The analogy of private and legal idea which conceptually determines property as a group of subjective property rights of legal subjects (real law and law of contracts and torts and the law of protected interests or rights sui generis), exclude liabilities which are observed as a burden on subjective property rights. Regardless the determination of differences which exist in State legislation at the determination of different State domains, its preliminary definition was necessary. Taking into consideration the legal varieties which exist in internal systems, State property represents per definitionem, a general group of real and unreal rights or interests of a State successor, its organizations and bodies.

    They could be both the legally sanctioned property rights upon movable and immovable goods intended for the execution of State competencies, and the interests protected by international community. In the later case, grounded by the historical diplomatic practice, it is a question of a property stricto sensu, organic and functionally determined for the execution of a State legislative, administrative and judicial authority, there is also State property which is lato sensu dedicated to the satisfaction of widest social necessities. From the analysis of individual national legal regimes comes out that internal legislations incline in dependence from political and economic establishments. It restricts directly the international law by solutions adopted from internal legal practice of individual States. The common guideline at all legal systems is that the State property derives its character from the relation toward State, what determines further its legal character (de iure imperii et de iure gestionis). State property is intended for the execution of competences which belong to the State on the basis of internal and international law. Synthesis of particular State and legal solutions pointed to the combinations of various criteria in the determination of State property. The general conclusion is that the economic criterion is common for all legal systems. The material nature of goods doubtlessly restricts also their legal nature. The very criterion that classifies property to movable and immovable, doesn’t reserve for itself a possibility that, in the case of the appearance of State succession, the categorization of objects in State property gets reduced only to a physical criterion of the State goods determination. For that reason, the existence of legal criteria in the determination of material and functional properties of the State property legal succession becomes indispensable. A precise theoretical definition of a State property succession understands a preceding separation of different forms of State property from other property forms. It will be realized firstly by the separation of State property from the private property in accordance with a subjective criterion, and, after that, by the delimitation on the basis of an objective criterion of the very object and the content of State property. In the first case, there is only a legal criterion, but in the second case, besides the legal, dominates also the economic criterion. In the case of the succession of States, the rule will be connected with the change of sovereignty de iure or with the change of spatial and time limits of State competences (ratione loci et ratione temporis).

    The question, which law is competent at the establishment of content and scope of property rights and interests which enter the State property, remains open. For the time being, the international law has no universal safe criterion for the determination of State property, and the imposing of solutions without a sufficient legal incorporation, would have in practice unacceptable consequences upon the successor’s sovereign rights and public order. Succession of States as iustus titulus for the total State and legal result in time, develop by the ancient Roman principle, ubi emolumentum ibi onus esse debet, res transit cum suo onere. Theoretical definition of a State property succession starts from the hypothesis of automatic transition of the territory of one State under the sovereignty of another State, what specifically means that a new sovereign, extending his territorial competency (extensio), acquires the property of the predeceasing State with the liabilities, burdens and limitations, but not more then of that what the predeceasing State possessed after the interpretative rule, nemo plus iuris transferre potes quam ipse habet. The confirmation of such hypothesis demands delimitation of State property from the State debts. The transition of State property on the territorial base proved the generic legal rule, but in the systems where the division of public and private State domain dominates, there are also certain modalities for their succession. Succession of public State property (domaine public) will not cause an automatic transition of private State property (domain privé) or the property of territorial authorities (bien communaoux). For the last two said domains, or the category of property rights, the law of State succession determines certain limitations. Certain corrections were introduced directly by the legal, political and economic practice of States at the delimitation of State property in cases when the State succession appears, and those are par example, the principle of fair and equal division (principle ex equo et bono), the principle of utility, the principle of contributions and others. Categorial division of State property will be, in the law of State succession, in a direct correlation with typologically confirmed territorial changes. In our study we started from the general meaning of individual categories of State property in conformity with their functional guidelines (for instance, property of public institutions, public funds, foundations, territorial authorities, State property in financial fields, etc.). Taking into consideration the volume and importance of property which a State could possess abroad, the solution of State property succession problem outside the territory of the State successor was of a special importance in the present study.

    Legal topic of a State property succession, leads unambiguously to the examination of the crucial problem in the State succession matter — doctrine and practice of acquired rights. A State successor could appear as a subject of international obligation concerning the right of subjected, different regimes of spatial and temporal succession. That context includes also the rule of untouchableness of property rights and legal security by which the new laws must not touch the already acquired rights, what makes a distinct barrier in the preservation of social, economic and political order. Out of there, the meaning of acquired rights has, before everything, an ideological function and objective of the preservation of subjective property rights from restrictive measures and actions of a State. Certainly in such sense, represents condition for the existence of every reasonable legal order. The protection of acquired rights which is realized through international mechanisms assumes the ab exteriore forced protection, so that it includes, first of all, private rights, but also public rights of mixed character, observing them in a broader context of the law of State succession. The maintaining of acquired rights has only arisen when they have had to be enforced against the Successor State. Through the medium State succession it emerged in 20th century as an international law principle concerning the protection not only the alien private property. International legal practice crystallized rules in respect of the protection of acquired rights. With the socialization of society and with the realization of the socialization of rights, the only obstacle in the realization of the concept of acquired rights has the, so called “common social interests” upon which the State organization and public order have been based upon. With the construction of a New Economic Order after the World War II, and with the decolonization process, rules evolved, so that, observing the world practice, came to the creation of a qualitative new, so called, development rules which represented a serious move in the comprehension of international law. Before everything, those were the rules which were constructed upon a conceptual dichotomy between the principle of economic self-determination of peoples and the rules of the responsibility of States for harmful actions which could emerge from restrictive measures, undertaken by new independent States regarding the acquired rights. The newly established rules which corresponded to the existing social conditions in international community could bring with them in such manner also a necessity of the violation of acquired rights. Therefore the central principle in State succession must be one of minimal disturbance of existing legal situations, consistent with the problem of expropriation alien private, public or property of mixed character (droits mixtes). It’s indemnifies the legal subjects from complete and arbitrary destruction of their legal interests. In conformity with the contemplative synthetic of the State property succession, the doctrine and practice of acquired rights directed the author for dedicate himself in the present study more to the problem of the succession of concession rights. Covering a broad spectru

  2. Gavrilo Nikolic Gavrilo Nikolic says:

    Expect more apart from a bunch a citations and quotes! Maybe it can be used as a piece to refer to while writing academic paper on the issue of state succession in international law.

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