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SEPARATE OPINION OF JUDGE WEERAMANTRY

TABLE OF CONTENTS

THE ISSUE oF AUTOMATIC SUCCESSION TO THE GENOCIDE CONVENTION
THEORIES RELATING TO STATE SUCCESSION
THE “CLEAN SLATE” PRINCIPLE

(a) Historical antecedents of the clean slate principle
(b) Theoretical bases of the clean slate principle
(c) Necessary exceptions to the clean slate principle

REASONS FAVOURING VIEW OF AUTOMATIC SUCCESSION TO THE GENOCIDE

CONVENTION
1. It is not centred on individual State interests
2. It transcends concepts of State sovereignty
3. The rights it recognizes impose no burden on the State
4. The obligations imposed by the Convention exist independently
of conventional obligations
5. It embodies rules of customary international law
6. It is a contribution to global stability
7. The undesirability of a hiatus in succession to the Genocide Con-
vention
8. The special importance of human rights guarantees against geno-
cide during periods of transition
9. The beneficiaries of the Genocide Convention are not third par-
ties in the sense which attracts the res inter alios acta principle
10. The rights conferred by the Convention are non-derogable

INTERNATIONAL PRESSURE FOR RECOGNITION OF THE PRINCIPLE OF AUTO-
MATIC SUCCESSION

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641 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. WEERAMANTRY)

THE ISSUE OF AUTOMATIC SUCCESSION
TO THE GENOCIDE CONVENTION

I agree with the majority of my colleagues that the Court does have
jurisdiction in this case. However, this case raises the important issue of
automatic succession to the Genocide Convention, which has not been
developed in the Court’s Judgment. I believe it warrants consideration.

One of the principal concerns of the contemporary international legal
system is the protection of the human rights and dignity of every indi-
vidual. The question of succession to the Genocide Convention raises one
of the most essential aspects of such protection.

The topic which J wish to address in this opinion is the continuing
applicability of the Convention to the populations to which it has applied.
When a convention so significant for the protection of human life has
been entered into by a State, and that State thereafter divides into two or
more successor States, what is the position of its subjects in the interim
period that elapses before the formal recognition of the successor States,
or before the new State’s formal accession to treaties such as the
Genocide Convention? I think this situation should not be passed by
without attention, especially having regard to the fact that the founda-
tions for a consideration of this matter are to be found in the Court’s
Opinion in the earlier case on genocide which came before it over forty
years ago (Reservations to the Convention on the Prevention and Punish-
ment of the Crime of Genocide, Advisory Opinion, L.C.J. Reports 1951,
p. 15).

Another reason calling for attention to this topic is the fact that the
international community is passing through a historical period, when,
throughout the world, the phenomenon is being experienced of the splin-
tering of States. This has occurred with particular intensity especially
after the end of the Cold War. It is vitally important that the principle of
protection of populations against human rights abuses and atrocities
should be strengthened in every manner available under current legal
principles; and the clarification of the law relating to State succession to
a humanitarian treaty so important as the Genocide Convention is emi-
nently such an area. |

Bosnia has contended that there is automatic succession to this treaty,
and Yugoslavia denies this proposition. This problem leads into the intri-
cate field of State succession to treaties — a field in which there has
been much difference of juristic opinion, and in which many competing
theories strive for recognition.

THEORIES RELATING TO STATE SUCCESSION

State succession is one of the oldest problems of international law.
As Oscar Schachter reminds us, this problem goes all the way back

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to Aristotle who, in his Politics, gave his mind to the question of conti-
nuity when “the State is no longer the same”!.

On this problem, the views of jurists have varied between the two poles
of universal succession (these were among the earliest theories, taking
their conceptual position largely from the analogy of the Roman law of
testamentary succession, involving a total succession to the deceased),
and of total negativism, involving a complete denial of succession (based
upon the conceptual analogy of a personal contract). It is not necessary
for present purposes to refer to the various theories lying between these
two extremes.

The circumstances of international life have demonstrated that neither
of these absolutist theories is adequate to cover all situations that might
arise and that any workable theory lies somewhere between these poles?.
Quite clearly, whichever of these positions one might lean towards, some
exceptions must necessarily be admitted.

The question for consideration in this case is whether, even on the
basis of the negativist theory that treaties of the predecessor State are not
binding, a necessary exception must exist in relation to treaties such as
the Genocide Convention. Much guidance is to be had on this question
from the consideration of automatic succession to human rights and
humanitarian treaties in general. The discussions and literature on this
matter suggest a principle of automatic succession to a large range of
such treaties. This opinion does not seek to deal with all human rights
and humanitarian treaties, but uses principles worked out in the context
of such treaties to reach the conclusion that they apply a fortiori to the
Genocide Convention which, in consequence, is a treaty to which there is
automatic State succession according to the contemporary principles of
international law.

1 Oscar Schachter, “State Succession: The Once and Future Law”, Virginia Journal of
International Law, 1992-1993, Vol. 33, p. 253, citing Aristotle, The Politics, Book JA,
Chap. 1. While analysing the constituent elements of a State — territory, government and
population — Aristotle refers, inter alia, to the question of the continuity of contractual
obligations after a change in the State.

2 A number of studies view multilateral treaties as an exception to the clean slate prin-
ciple — see Ian Brownlie, Principles of Public International Law, 4th ed., 1990, p. 670;
D. P. O’Connell, State Succession in Municipal Law and International Law, 1967, Vol. II,
pp. 212-219. The latest edition of Oppenheim, while observing that there is more room
than with regard to treaties generally for the new State, on separation, to be considered
bound by multilateral treaties of a law-making nature, singles out treaties of a humani-
tarian character as especially attracting this view (Oppenheim’s International Law, 9th ed.,
Jennings and Watts (eds.), 1992, Vol. 1, s. 64, pp. 222-223). However, the definition of
multilateral treaties presents a problem and, for the purposes of the present opinion, it is
not necessary to enter into this field.

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643 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. WEERAMANTRY)
THE “CLEAN SLATE” PRINCIPLE

(a) Historical Antecedents of the Clean Slate Principle

The principle that a new State ought not in general to be fettered with
treaty obligations which it has not expressly agreed to assume after it has
attained statehood (the clean slate principle) is of considerable historical
and theoretical importance. New States ought not, in principle, to be bur-
dened with treaty-based responsibilities without their express consent.

With the sudden advent into the international community of nearly
eighty newly independent States in the late fifties and early sixties, there
was a realization among them, in the words of Julius Stone, that:

“their authority or their territory or both are burdened with debts,
concessions, commercial engagements of various kinds or other obli-
gations continuing on from the earlier colonial regime . . .”3.

For example, in Nigeria, 300 treaties negotiated by Britain were said to
be applicable to the country‘.

Other newly emerging countries soon became conscious of the dangers
to their autonomy involved in this principle, and what came to be known
as the Nyerere Doctrine emerged under which none of the colonial trea-
ties became applicable unless the new State, within a specified period of
time, notified its accession to such treaties*. In the language of Jenks, in
relation to State succession to colonial treaties, “The psychology of newly
won independence is a formidable reality.” 6

This was not, however, the only historical reality that favoured the
clean slate theory. There were numerous older precedents, of which a few
illustrative examples may be mentioned. Following the Franco-Prussian
war and the transfer of Alsace-Lorraine, French treaties applicable to the

3 Julius Stone, “A Common Law for Mankind?’, International Studies, 1960, Vol. 1,
pp. 430-431. See also E. G. Bello, “Reflections on Succession of States in the Light of the
Vienna Convention on Succession of States in Respect of Treaties 1978”, German Year-
book of International Law, 1980, Voi. 23, p. 298; D. P. O’Connell, State Succession, op.
cit., p. 116.

4 By exchange of letters between the Prime Minister and the United Kingdom High
Commission on the very day of independence, the Federation assumed all rights and obli-
gations entered into “on their behalf” before independence, and undertook to keep such
agreements in force until the Government of Nigeria could consider whether they required
modification or renegotiation in any respect (E. G. Bello, op. cit., p. 298).

5 Ibid., pp. 298-299.

6C. Wilfred Jenks, “State Succession in Respect of Law-Making Treaties”, British
Year Book of International Law, 1952, Vol. 29, p. 108.

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provinces had, in general’, to cease to have effect and be replaced by
German treaties. Again, British jurists, facing the problem of annexation
of colonial territories, tended towards the view that “the treaties of the
expunged legal person died with it”®, so that they received those colonies
free of the burden of prior treaties. At the United Nations Conference on
Succession of States in Respect of Treaties®, several other examples were
referred to, among them the situation resulting from the termination of
the Austro-Hungarian Empire, when Czechoslovakia and Poland emerged
as independent States with a clean slate in regard to treaties of the former
Austro-Hungarian Empire, except for certain multilateral treaties !°.

The clean slate theory was thus the result of many historical trends!!,
and had received favour at one time or another from both emerging and
established nations.

(b) Theoretical Bases of the Clean Slate Principle

Theoretically, the clean slate principle can be justified on several
powerful bases — the principle of individual State autonomy, the principle
of self-determination, the principle of res inter alios acta, and the prin-
ciple that there can be no limitations on a State’s rights, except with its
consent. Newly independent States should not have to accept as a
fait accompli the contracts of predecessor States, for it is self-evident that
the new State must be free to make its own decisions on such matters.

The clean slate principle could also be described as an important cor-
ollary to the principle of self-determination, which is of cardinal impor-
tance in modern international law. The principle of self-determination
could be emptied of an important part of its content if prior treaties auto-
matically bind the new State.

One of the bases of the negativist view is that treaties entered into
by the predecessor State are res inter alios acta. Castrén, dealing spe-
cially with the case of division of a pre-existing State into new States,
observes:

“When a State is dismembered into new independent States, its
treaties as a rule become null and void without descending to the
new States. Treaties are generally personal in so far as they pre-
suppose, in addition to the territory, also the existence of a certain

7 An exception was, however, in regard to ecclesiastical law, where Napoleon’s Con-
cordat with the Holy See continued to apply.

8 D. P. O’Connell, “Reflections on the State Succession Convention”, Zeitschrift für
ausländisches ôffentliches Recht und Vélkerrecht, 1979, Vol. 39, p. 735.

9 Vienna, 4 April-6 May 1977, and 31 July-23 August 1978.

10 Official Records, Vol. Ill, p. 92, para. 14.

11 O’Connell, “Reflections on the State Succession Convention”, op. cit., p. 735.

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sovereign over the territory. To the succeeding State, the treaties
concluded by the former State are res inter alios acta.” !2

Basic concepts of State sovereignty also require that any curtailment of
the sovereign authority of a State requires the express consent of the
State.

If there is to be, in a given case, a deviation from the clean slate prin-
ciple, sufficiently cogent reasons should exist to demonstrate that the new
State’s sovereignty is not being thereby impaired. The question needs
therefore to be examined as to whether there is any impairment of State
sovereignty implicit in the application of the principle of automatic suc-
cession to any given treaty.

(c) Necessary Exceptions to the Clean Slate Principle

Human rights and humanitarian treaties involve no loss of sovereignty
or autonomy of the new State, but are merely in line with general prin-
ciples of protection that flow from the inherent dignity of every human
being which is the very foundation of the United Nations Charter.

At the same time, it is important that the circle of exceptions should
not be too widely drawn. Conceivably some human rights treaties may
involve economic burdens, such as treaties at the economic end of the
spectrum of human rights. It is beyond the scope of this opinion to exam-
ine whether all human rights and humanitarian treaties should be
exempted from the clean slate principle. It is sufficient for the purposes of
this opinion to note a variety of reasons why it has been contended that
human rights and humanitarian treaties in general attract the principle of
automatic succession. These reasons apply with special force to treaties
such as the Genocide Convention or the Convention against Torture,
leaving no room for doubt regarding automatic succession to such trea-
ties. The international community has a special interest in the continuity
of such treaties.

REASONS FAVOURING VIEW OF AUTOMATIC SUCCESSION
TO THE GENOCIDE CONVENTION

1. It Is Not Centred on Individual State Interests

This Court, in its earlier consideration of the Genocide Convention,
drew pointed attention to the difference between a humanitarian treaty

12 EB, Castrén, “Obligations of States Arising from the Dismemberment of Another
State”, Zeitschrift für ausländisches ôffentliches Recht und Vélkerrecht, 1950-1951,
Vol. 13, p. 754 (emphasis added); cited by M. G. Maloney in Virginia Journal of Inter-
national Law, 1979-1980, Vol. 19, p. 892.

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such as the Genocide Convention, and a convention aimed at protecting
the interests of a State. The Court stated in its Opinion on Reservations
to the Convention on the Prevention and Punishment of the Crime of
Genocide that:

“In such a convention the contracting States do not have any
interests of their own; they merely have, one and all, a common
interest, namely, the accomplishment of those high purposes which
are the raison d’étre of the convention. Consequently, in a conven-
tion of this type one cannot speak of individual advantages or dis-
advantages to States, or of the maintenance of a perfect contractual
balance between rights and duties.” (1. C.J. Reports 1951, p. 23.)

Charles De Visscher has remarked on the contrast

“between the frailty of agreements of merely individual interest,
dependent as these are upon transitory political relations, and the
relative stability of conventions dictated by concern for order or
respect for law” ?.

He has also remarked in this context that the growing part played by
multilateral treaties in the development of international law should count
in favour of the transmission rather than disappearance of the obliga-
tions they create.

Human rights and humanitarian treaties do not represent an exchange
of interests and benefits between contracting States in the conventional
sense, and in this respect may also be distinguished from the generality of
multilateral treaties, many of which are concerned with the economic,
security or other interests of States. Human rights and humanitarian
treaties represent, rather, a commitment of the participating States to cer-
tain norms and values recognized by the international community.

Stated another way, the personality of the sovereign is not the essence
of such an agreement. Multilateral treaties are most often concluded with
the object of protecting and benefiting the international community as a
whole, and for the maintenance of world order and co-operation, rather
than of protecting and advancing one particular State’s interests.

2. It Transcends Concepts of State Sovereignty

The Genocide Convention does not come to an end with the dismem-
berment of the original State, as it transcends the concept of State sov-
ereignty. An important conceptual basis denying continuity to treaties is
that the recognition of the continuity of the predecessor State’s treaties
would be an intrusion upon the sovereignty of the successor State. This-

13 Theory and Reality in Public International Law, revised ed., 1968, translated from
the French by P. E. Corbett, p. 179.
14 Ibid.

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would be so if it were a matter confined within the ambit of a State’s sov-
ereignty. But with human rights and humanitarian treaties, we are in a
sphere which reaches far beyond the narrow confines of State sover-
eignty, and enters the domain of universal concern.

In its ongoing development, the concept of human rights has long
passed the stage when it was a narrow parochial concern between sov-
ereign and subject. We have reached the stage, today, at which the
human rights of anyone, anywhere, are the concern of everyone, every-
where. The world’s most powerful States are bound to recognize them,
equally with the weakest, and there is not even the semblance of a sugges-
tion in contemporary international law that such obligations amount to a
derogation of sovereignty.

3. The Rights It Recognizes Impose No Burden on the State

Moreover, a State, in becoming party to the Convention, does not give
away any of its rights to its subjects. It does not burden itself with any
new liability. It merely confirms its subjects in the enjoyment of those
rights which are theirs by virtue of their humanity. Human rights are
never a gift from the State and hence the State, in recognizing them, is
not imposing any burden upon itself. We have long passed the historical
stage when a sovereign, granting to his subjects what we would today call
a human right, could claim their gratitude for surrendering to them what
was then considered to be a part of his absolute and undoubted rights as
a sovereign. Human rights treaties are no more than a formal recognition
by the sovereign of rights which already belong to each of that sover-
eign’s subjects. Far from being largesse extended to them by their sov-
ereign, they represent the entitlement to which they were born.

Quite contrary to the view that human rights treaties are a burden on
the new State, it could indeed be asserted that the adherence by a new
State to a system which is universally accepted, whereby the new State
becomes part of that system, is indeed a benefit to the new State, in sharp
contrast to the position of disadvantage in which it would place itself if it
stood outside that system.

4. The Obligations Imposed by the Convention Exist Independently of
Conventional Obligations

This Court observed in Reservations to the Convention on the Preven-
tion and Punishment of the Crime of Genocide, “the principles underlying
the [Genocide] Convention are principles which are recognized by civi-
lized nations as binding on States, even without any conventional obliga-
tion” (LC.J. Reports 1951, p. 23). The same may be said of all treaties
concerning basic human rights.

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The Court referred also in the same Opinion to the universal character
of the condemnation of genocide. This condemnation has its roots in the
convictions of humanity, of which the legal rule is only a reflection. The
same could likewise be said of many of the basic principles of human
rights and humanitarian law.

5. It Embodies Rules of Customary International Law

The human rights and humanitarian principles contained in the Geno-
cide Convention are principles of customary international law. These
principles continue to be applicable to both sovereign and subjects, irre-
spective of changes in sovereignty, for the new sovereign, equally with the
old, is subject to customary international law. The customary rights
which the subjects of that State enjoy continue to be enjoyed by them,
whoever may be their sovereign. The correlative duties attach to the
sovereign, whoever he may be. The position is no different when those
customary rights are also embodied in a treaty.

This factor may indeed be seen in wider context as essential to the evo-
lution of international law into a universal system. Among writers who
have stressed this aspect in relation to multilateral treaties are Wilfred
Jenks, who observed:

“It is generally admitted that a new State is bound by existing
rules of customary international law. This principle has, indeed,
been of fundamental importance in the development of international
law into a world-wide system . . . It is not clear why, now that the
rules established by multipartite legislative instruments constitute so
large a part of the operative law of nations, a new State should be
regarded as starting with a clean slate in respect of rules which have
a conventional rather than a customary origin.” !

In regard to such a matter as genocide, there can be no doubt that the
treaty is of fundamental importance to the development of the operative
law of nations.

6. It Is a Contribution to Global Stability

The strengthening of human rights protections in accordance with
universally held values is a matter of universal concern and interest.

The promotion and encouragement of respect for human rights is,
according to Article 1 (3) of the United Nations Charter, one of the Pur-

poses of the United Nations, and the reaffirmation of faith in fundamen-
tal human rights and the dignity and worth of the human person are

15 W. Jenks, op. cit., p. 107.

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among the foremost objects that the peoples of the United Nations set
before themselves “to save succeeding generations from the scourge of
war”.

Genocide attacks these concepts at their very root and, by so doing,
strikes at the foundations of international stability and security.

A State’s guarantees of human rights to its subjects in terms of even
such a Covenant as the International Covenant on Civil and Political
Rights are thus a matter which does not concern that State alone, but
represent a contribution to human dignity and global stability — as dis-
tinguished, for example, from a commercial or trading treaty. This aspect
is all the more self-evident in a treaty of the nature of the Genocide Con-
vention.

At the United Nations Conference on State Succession on 22 April
1977, the Soviet Union drew attention to a letter by the International
Committee of the Red Cross to the Chairman of the International Law
Commission to the effect that no State had ever claimed to be released
from any obligation under the Geneva Conventions. In this connection,
the representative of the Soviet Union observed that, “Such a practice
had not created difficulties for newly independent States”!®. He also
observed:

“Thus treaties of a universal character were of paramount impor-
tance for the whole international community, and particularly for
newly independent States. It was therefore in the interests of not
only newly independent States but also of the international commu-
nity as a whole that a treaty of universal character should not cease
to be in force when a new State attained independence.” !?

7. The Undesirability of a Hiatus in Succession to the Genocide
Convention

“If the contention is sound that there is no principle of automatic suc-
cession to human rights and humanitarian treaties, the strange situation
would result of the people within a State, who enjoy the full benefit of a
human rights treaty, such as the International Covenant on Civil and
Political Rights, and have enjoyed it for many years, being suddenly
deprived of it as though these are special privileges that can be given or
withdrawn at the whim or fancy of Governments. Populations once pro-
tected cease to be protected, may be protected again, and may again
cease to be protected, depending on the vagaries of political events. Such
a legal position seems to be altogether untenable, especially at this stage
in the development of human rights.

16 24th meeting, 22 April 1977, Official Records, Vol. I, p. 164, para. 5.
17 Tbid., p. 163, para. 2.

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Jenks observes, “It is not a matter of perpetuating the dead hand of the
past, but of avoiding a legal vacuum.” !8 This vacuum could exist over
“hundreds of thousands of square miles and millions of citizens . . .””.
He also refers to:

“the uncertainty, confusion and practical inconvenience of a legal
vacuum which may be gravely prejudicial not only to the interests of
other States concerned but equally to the interests of the new State
itself and its citizens” 2°.

The undesirability of such a result becomes more evident still if the
human rights treaty under consideration is one as fundamental as the
Genocide Convention. If the principle set out earlier is not clearly recog-
nized, the international legal system would be endorsing the curious
result that people living under guarantees that genocide will not be com-
mitted against them will suddenly be deprived of that guarantee, precisely
at the time they need it most — when there is instability in their State.
The anomaly of a grant followed by a withdrawal of the benefits, of such
a Covenant as the International Covenant for Civil and Political Rights,
becomes compounded in the case of the Genocide Convention, and the
result is one which, in my view, international law does not recognize or
endorse at the present stage of its development.

Furthermore, there may be circumstances where, after a new State has
proclaimed its independence, the accession of that State to statehood
may itself be delayed by the non-recognition of a breakaway State by the
State from which it breaks away. In such a situation, where advent of the
new State to statehood is deliberately delayed by action of the former
State, there can be no accession to the treaty by the breakaway State for
a considerable time. During that period, it seems unreasonable that the
citizens of that breakaway State should be deprived of such protection as
the Convention may give them, against acts of genocide by the State
from which the secession has occurred, as well as by the State that has
seceded. The longer the delay in recognition, the longer then would the
period be during which those citizens are left unprotected. Such a result
seems to me to be totally inconsistent with contemporary international
law — more especially in regard to a treaty protecting such universally
recognized rights as the Genocide Convention.

8. The Special Importance of Human Rights Guarantees against
Genocide during Periods of Transition

To the strong conceptual position resulting from the foregoing consid-
erations, there must be added the practical imperatives that result from

18 Jenks, op. cit., p. 109.
19 Tbid.
20 Jbid.

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a realistic view of the international situation occurring in the process of the
dismemberment of a State, with all the political, social and military turmoil
that is known only too well to accompany that process in modern times.

It would in fact be most dangerous to view the break-up of a State as
clearing the decks of the human rights treaties and obligations of the
predecessor State. It is dangerous even to leave the position unclear,
and that is why I have felt impelled to state my opinion upon this all-
important matter.

All around us at the present time, the break-up of States has often been
accompanied by atrocities of the most brutal and inhuman kind, prac-
tised on a scale that defies quantification. To leave a lacuna in the con-
tinuity of the law or any vagueness in the perception of that continuity
would be fraught with danger to the most cherished values of civilization.

If the principle of continuity in relation to succession of States, adopted
in Article 34 (1) in the 1978 Vienna Convention on Succession of States
in Respect of Treaties, is to apply to any treaties at all, the Genocide
Convention must surely be among such treaties.

Furthermore, humanitarian treaties formulate principles that are an
established part of the law of war. The law of war applies, of course, even
in regard to an internal war (vide Geneva Convention 1977, Protocol ID).
The applicability of the principles underlying these treaties, among which
the Genocide Convention may also be reckoned, becomes particularly
important in times of internal turmoil. Such treaties cannot be suspended
sine die during times of internal unrest such as accompany the break-up
of a State, when they are most needed.

9. The Beneficiaries of the Genocide Convention Are Not Third Parties
in the Sense Which Attracts the Res Inter Alios Acta Principle

The beneficiaries of the Genocide Convention, as indeed of all human
rights treaties, are not strangers to the State which recognizes the rights
referred to in the Convention. The principle that res inter alios acta are
not binding, an important basis of the clean slate rule, does not therefore
apply to such conventions. There is no vesting of rights in extraneous
third parties or in other States, and no obligation on the part of the State
to recognize any rights of an external nature. Far from being a trans-
action inter alios, such treaties promote the highest internal interests
which any State can aspire to protect.

10. The Rights Conferred by the Convention Are Non-derogable

The rights and obligations guaranteed by the Genocide Convention are
non-derogable, for they relate to the right to life, the most fundamental

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of human rights, and an integral part of the irreducible core of human
rights. It relates not merely to the right to life of one individual, but to
that right en masse.

Moreover, under the Genocide Convention, the obligation of States is
not merely to refrain from committing genocide, but to prevent and pun-
ish acts of genocide. The failure by a successor régime to assume and dis-
charge this obligation would be altogether incompatible with State obli-
gations as recognized in contemporary international law.

Another possible line of enquiry, not necessary for the determination
of the present matter, is the analogy between a treaty vesting human
rights, and a dispositive treaty vesting property rights. From the time of
Vattel?', such a dispositive treaty, as for example a treaty recognizing a
servitude, has been looked upon as vesting rights irrevocably in the party
to whom they were granted; and those rights, once vested, could not be
taken away. Perhaps in comparable fashion, human rights, once granted,
become vested in the persons enjoying them in a manner comparable, in
their irrevocable character, to vested rights in a dispositive treaty.

This interesting legal hypothesis need not detain us here as the conclu-
sion I have reached is amply supported by the other principles discussed.

Some of the reasons set out above, even considered individually, are
cogent enough to demonstrate the applicability of automatic succession
to the Genocide Convention (and indeed to a wide range of human rights
and humanitarian treaties). Taken cumulatively, they point strongly to
the clear incompatibility with international law of the contention that the
Genocide Convention ceases to apply to the subjects of a State upon the
division of that State.

21 See E. de Vattel, The Law of Nations or Principles of Natural Law, C. Fenwick
(trans.), 1916, p. 169, referred to in Virginia Journal of International Law, 1979-1980,
Vol. 19, p. 888, note 16.

22 On the possible extension to human rights of the doctrine of acquired rights which
has traditionally been applied to dispositive treaties and property rights, see Malcolm N.
Shaw, “State Succession Revisited”, Finnish Yearbook of International Law, 1994, Vol. 5,
p. 82; Rein Mullerson, “The Continuity and Succession of States, by Reference to the
Former USSR and Yugoslavia”, International and Comparative Law Quarterly, 1993,
Vol. 42, pp. 490-491. See also the statement at the Human Rights Committee of one of its
members referring to these rights as “acquired rights” which were not “diluted” when a
State was divided (Serrano Caldera, CCPR/C/SR.1178/Add.1, 5 November 1992, p. 9).

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INTERNATIONAL PRESSURE FOR RECOGNITION OF THE PRINCIPLE OF
AUTOMATIC SUCCESSION

In the discussions that took place at the United Nations Conference on
Succession of States in Respect of Treaties, this aspect of a need to pre-
vent a hiatus occurring in the process of succession of States received
emphasis from several States. The position was well summarized by one
delegate who, while pointing out that the “essence of the problem was to
strike a balance between continuity and the freedom of choice which was
the basis of the ‘clean slate’ principle” #, stated that, in the case of multi-
lateral treaties, the need for continuity was pressing. He described as an
“international vacuum” the situation that could arise if this were not the
case, and spoke of this as “a lacuna inconvenient both to the newly inde-
pendent State and to the international community”*.

This question has also been considered in some depth by the Commis-
sion on Human Rights and by the Human Rights Committee.

At its forty-ninth session, the Commission on Human Rights adopted
resolution 1993/23 of 5 March 1993, entitled “Succession of States in
respect of international human rights treaties”. This resolution encour-
aged successor States to confirm officially that they continued to be
bound by international obligations under relevant human rights treaties.
The special nature of human rights treaties was further confirmed by the
Commission in its resolution 1994/16 of 25 February 1994, and the Com-
mission, in that resolution, reiterated its call to successor States which
had not yet done so to confirm to appropriate depositories that they
continued to be bound by obligations under international human rights
treaties.

The Committee on Human Rights, at its forty-seventh session
(March-April 1993), stated that all the people within the territory of a
former State party to the Covenant remained entitled to the guarantees
under the Covenant.

It is worthy of note also that during the fifth meeting of persons chair-
ing the human rights treaty bodies, held from 19 to 23 September 1994:

“The chairpersons emphasized, however, that they were of the
view that successor States were automatically bound by obligations
under international human rights instruments from the respective
date of independence and that observance of the obligations should

23 Mr. Shahabuddeen, speaking for Guyana, 23rd Meeting, 21 April 1977, Official
Records, Vol. I, p. 163.

24 Tbid., p. 162. See, also, Sweden, Mr. Hellners, 26th meeting, 25 April 1977, ibid.,
p. 177.

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654 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. WEERAMANTRY)

not depend on a declaration of confirmation made by the Govern-
ment of the successor State.” 2

The Ad Hoc Committee on Genocide also made the important point
that the crime of genocide generally entails the complicity or direct
involvement of Governments”, and national courts are likely to be reluc-
tant or ineffective in adjudicating claims of State-sponsored genocide?’
— hence the importance of Article IX.

All of these views, though not authoritative in themselves, serve to
underline the principle here under discussion. These are all committees
with special experience of handling problems in the human rights area,
and the force of their conviction of the necessity of such a rule empha-
sizes how vital it is in actual practice.

If such should be the principle suggested, in regard to human rights
conventions such as the Covenant on Civil and Political Rights, one can
be left in little doubt regarding its essentiality in regard to conventions
such as the Genocide Convention.

A clarification of this principle is one of the ways in which interna-
tional law can respond to the needs of international society.

In the words of Jenks, written in the context of State succession to
treaties:

“if our legal system fails to respond to the widely felt and urgent
needs of a developing international society, both its authority as a
legal system and the prospect of developing a peaceful international
order will be gravely prejudiced” *®.

4 * x

All of the foregoing reasons combine to create what seems to me to be
a principle of contemporary international law that there is automatic
State succession to so vital a human rights convention as the Genocide
Convention. Nowhere is the protection of the quintessential human right
— the right to life — more heavily concentrated than in that Convention.

Without automatic succession to such a Convention, we would have a
situation where the worldwide system of human rights protections con-

25 B/CN.4/1995/80, 28 November 1994, p. 4.

26 United Nations, Official Records of the Economic and Social Council, Ad Hoc Com-
mittee on Genocide, Sixth Session, 4th meeting, United Nations doc. E/AC.25/SR.4
(1948), pp. 3-5, cited in M. Lippman, “The 1948 Convention on the Prevention and Pun-
ishment of the Crime of Genocide: Forty-five Years Later”, Temple International and
Comparative Law Journal, 1994, Vol. 8, p. 70.

27 Ibid.

28 Jenks, op. cit., p. 110.

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tinually generates gaps in the most vital part of its framework, which
open up and close, depending on the break-up of the old political
authorities and the emergence of the new. The international legal system
cannot condone a principle by which the subjects of these States live in a
state of continuing uncertainty regarding the most fundamental of their
human rights protections. Such a view would grievously tear the seamless
fabric of international human rights protections, endanger peace, and
lead the law astray from the Purposes and Principles of the United
Nations, which all nations, new and old, are committed to pursue.

(Signed) Christopher Gregory WEERAMANTRY.

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