He plumped for a compromise: whilst Article 9 of the ILC Articles rejected unilateral declarations, Article 16 within the category of ‘new States’ provided for tacit consent of other parties to notification of succession to a multilateral treaty. This struck a middle position between the ‘continuity’ and ‘tabula rasa’ camps by rejecting an obligation to succeed while providing for a restricted right to succeed by notification, but only to multilateral treaties and subject to the terms of the treaty (which might be interpreted to require the consent of all parties). True to his earlier work, O’Connell concluded that the inconsistency of available State practice militated, on policy grounds, in favour of a presumption of continuity – a thesis that Waldock expressly rejected. In further contrast, Bedjaoui mirrored Waldock’s approach in form by adopting the language of ‘newly independent States’ and distinguishing between categories of succession. However, Articles 14, 26 and 36 of the ILC text on property, archives and debts took the substantively inconsistent position – foreshadowed by the revolutionary aims of the nouvel ordre économique movement to achieve economic redress for historical injustice – that newly independent States generally succeed automatically to ownership of immovable State property and archives yet do not succeed to debt with respect to their territory, save by special agreement. None of the approaches provided a wholly consistent and equitable solution. Though ingenious, Waldock’s formulations rejected a considerable body of State practice on unilateral declarations while drawing complex distinctions both on categories of succession and categories of treaty. O’Connell’s approach, though more methodologically rigorous than Waldock’s in that he openly grounded his principle of continuity in policy rather than the empiricism from which Waldock was to inevitably depart, nevertheless rejected the desire of decolonized States for a power to review treaties in their initial years of independence. Bedjaoui, meanwhile, prioritised the interests of decolonized States to a degree that broke the
unique problems raised by the reunification of the ‘three Germanies’ to the tortuous difficulties arising from the successions to the Socialist Federal Republic of Yugoslavia, desovietization raised a host of problems (many of them unwelcome) for politicians and civil servants to tackle. Unlike decolonization, which had been somewhat planned (at least, in broad strokes) from the mid-forties, desovietization was a spontaneous juggernaut. Policy had to be made on the hop – largely by the First World in the ensuing power vacuum. In the frenzy, what eventuated was the devising of ad hoc solutions to the problems at hand and the renewed debate in the professional literature on the basics and specifics of succession. Cry Havoc: Confused State Practice In light of the largely unexpected and unplanned collapse of the Second World, the ILC’s decision to expedite its succession projects in the midst of decolonization may have been regarded as fortuitous, if not prescient. The availability of expertly-drafted codices as swords for a slew of Gordian knots might be welcomed by the diplomats and jurists whose unenviable task it was to cut them. Yet, the record features poor participation, indecisive normativity and infrequent application in practice. For example, the solution adopted for German reunification – most importantly, the question of German membership in the European Community – of an absorption of the German Democratic Republic by the Federal Republic of Germany as an essentially ‘internal’ process did not accord with either Article 31 VCSST or with the approach taken to the unification of Yemen later that year. The Baltic States’ policy of rejecting the Soviet legacy in favour of a ‘revival of prior personality’ theory had no basis in the Vienna Conventions and led to inconsistent outcomes on a variety of matters. Although Czechoslovakia was comparatively straightforward and the influence of Article 34 of the VCSST was discernible the lack of consistency in the body of practice was evident: in the Gabćikovo-Nagymaros
Scottish Government’s White Paper on Independence and in parliamentary committee reports, which essentially concluded that ‘they would be determined by negotiation in good faith’ during the transitional process of secession. The publicly-available professional guidance that was to the protagonists reinforced this approach. Whilst Crawford and Boyle had not been retained to advise on matters related to property and debt, the thrust of their advice on international personality (the ‘continuation versus succession’ problem) and membership of international organisations centred on the role of ‘negotiations in good faith’ and rejected foreordained legal outcomes. Consequently, the impression was that international law had little incisive to say about the myriad problems arising out of succession; by emphasising negotiation in good faith, international law was rather concerned with ‘gently civilizing’ the political process by channelling it to some orderliness. Whilst the Opinion denied a role for the Vienna Conventions on the key question of succession to membership of international organisations and the ILC had shunted aside the topic at the outset of its codification project, the negative approach of Article 4(a) VCSST has ironically acquired a modicum of authority. It precludes automatic succession to membership save where (expressly) provided for in the rules of the organisation, largely following a consistent (the SFRY/FRY controversy aside) body of UN practice requiring a successor to accede to membership. With the notable exceptions of the International Monetary Fund and the World Bank, this practice has become the orthodoxy; this is unsurprising, as the rule is a relative rather than a prescriptive one and thus, insofar as the ‘law of succession’ is concerned, not a rule at all. Yet, the negative outcome of the Scottish independence referendum, in which polarised positions were adopted by the Scottish Government and the British Government concerning the key issues of EU membership and the currency, has not put paid to