Draft articles on Succession of States in respect of State Property, Archives and Debts with commentaries 1981 Text adopted by the International Law Commission at its thirty-third session, in 1981, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (at para. 87). The report, which also contains commentaries on the draft articles, appears in Yearbook of the International Law Commission, 1981, vol. II, Part Two. Copyright © United Nations 2005 20 Report of the International Law Commission on the work of its thirty-third session autonomous source of law".69 According to a resolu- 85. Having in mind the Court's elaboration of the tion of the Institute of International Law, concept of equity, the Commission wishes to emphasize that equity, in addition to being a supplementary ele- 1. ... Equity is normally inherent in a sound application of the law ...; ment throughout the draft, is also used therein as part of the material content of specific provisions, and not as 2. The international judge ... can base his decision on equity, without being bound by the applicable law, only if all the parties the equivalent of the notion of equity as used in an ex clearly and expressly authorize him to do so.70 aequo et bono proceeding, to which a tribunal can have recourse only upon express agreement between the par- Under article 38, paragraph 2, of its Statute, the Inter- ties concerned. national Court of Justice may in fact decide a case ex aequo et bono only if the parties agree thereto. B. Recommendation of the Commission 83. The Court has, of course, had occasion to deal 86. At its 1696th meeting, on 22 July 1981, the Com- with this problem. In the North Sea Continental Shelf mission decided, in conformity with article 23 of its cases, it sought to establish a distinction between equity Statute, to recommend that the General Assembly and equitable principles. The Federal Republic of Ger- should convene an international conference of many had submitted to the Court, in connection with plenipotentiaries to study the draft articles on Succes- the delimitation of the continental shelf, that the sion of States in respect of State property, archives and "equidistance method" should be rejected, since it debts and to conclude a convention on the subject.75 "would not lead to an equitable apportionment". The Federal Republic asked the Court to refer to the notion C. Resolution adopted by the Commission of equity by accepting the "principle that each coastal 71 87. The Commission, at its 1696th meeting, on 22 July State is entitled to a just and equitable share". Of course, the Federal Republic made a distinction between 1981, adopted by acclamation the following resolution: deciding a case ex aequo et bono, which could be done The International Law Commission, only with the express agreement of the parties, and in- Having adopted the draft articles on succession of States in respect voking equity as a general principle of law. In its Judg- of State property, archives and debts, Desires to express to the Special Rapporteur, Mr. Mohammed Bed- ment, the Court decided that, in the cases before it, in- jaoui, its deep appreciation of the outstanding contribution he has ternational law referred back to equitable principles made to the treatment of the topic by his scholarly research and vast which the parties should apply in their subsequent experience, thus enabling the Commission to bring to a successful con- negotiations. clusion its work on the draft articles on succession of States in respect of State property, archives and debts. 84. The Court stated: ... it is not a question of applying equity simply as a matter of abstract justice, but of applying a rule of law which itself requires the D. Draft articles on succession of States in respect application of equitable principles, in accordance with the ideas which have always underlain the development of the legal regime of the con- of State property, archives and debts tinental shelf in this field.72 In the view of the Court, "equitable principles" are PART I "actual rules of law" founded on "very general precepts of justice and good faith".73 These "equitable GENERAL PROVISIONS principles" are distinct from "equity" viewed "as a matter of abstract justice". The decisions of a court of Commentary justice: Part I, following the model of the 1969 Vienna Con- 76 77 must by definition be just, and therefore in that sense equitable. vention and the 1978 Vienna Convention, contains Nevertheless, when mention is made of a court dispensing justice or certain general provisions which relate to the present declaring the law, what is meant is that the decision finds its objective draft articles as a whole. Its title reproduces that of justification in considerations lying not outside but within the rules, and in this field it is precisely a rule of law that calls for the application Part I of the 1978 Vienna Convention. Also, in order to of equitable principles.74 maintain structural conformity with the corresponding parts of those Conventions, the order of articles 1 to 3 69 Annuaire de I'lnstitut de droit international, 1934 (Brussels), follows that of the articles dealing with the same vol. 38, p. 239. subject-matter in those conventions. 70 Annuaire de I'lnstitut de droit international, 1937 (Brussels), vol. 40, p. 271. Article 1. Scope of the present articles 71 North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 9. The present articles apply to the effects of a suc- 72 Ibid., p. 47. cession of States in respect of State property, archives 73 Ibid., p. 46. and debts. 74 Ibid., p. 48. See also Fisheries Jurisdiction (United Kingdom v. Iceland, Merits, Judgment, I.C.J. Reports 1974, pp. 30-33, 75 Certain members reserved their position on this recommendation. paras. 69-78, and Fisheries Jurisdiction (Federal Republic of Ger- 76 many v. Iceland), Merits, Judgment, ibid., pp. 198 et seq., See footnote 63 above. paras. 61-69. 77 See footnote 16 above. Succession of States in respect of matters other than treaties 21 Commentary Article 2. Use of terms (1) This article corresponds to article 1 of the 1978 1. For the purposes of the present articles: Vienna Convention. Its purpose is to limit the scope of (a) "succession of States" means the replacement of the present draft articles in two important respects. one State by another in the responsibility for the inter- (2) First, article 1 takes account of the decision by the national relations of territory; General Assembly that the topic under consideration (b) "predecessor State" means the State which has should be entitled: "Succession of States in respect of been replaced by another State on the occurrence of a matters other than treaties".78 In incorporating the succession of States; words "of States" in article 1, the Commission in- (c) "successor State" means the State which has tended to exclude from the field of application of the replaced another State on the occurrence of a succession present draft articles the succession of Governments and of States; the succession of subjects of international law other (d) "date of the succession of States" means the date than States, an exclusion which also results from ar- upon which the successor State replaced the predecessor ticle 2, subparagraph 1 (a). The Commission also in- State in the responsibility for the international relations tended to limit the field of application of the draft ar- of the territory to which the succession of States relates; ticles to certain "matters other than treaties". (e) "newly independent State" means a successor (3) In view of General Assembly resolution 33/139 of State the territory of which, immediately before the date 19 December 1978, recommending that the Commission of the succession of States, was a dependent territory should aim at completing at its thirty-first session the for the international relations of which the predecessor first reading of "the draft articles on succession of State was responsible; States in respect of State property and State debts", the if) "third State" means any State other than the Commission considered at that session the question of predecessor State or the successor State. reviewing the words "matters other than treaties", 2. The provisions of paragraph 1 regarding the use of which appeared both in the title of the draft articles and terms in the present articles are without prejudice to the in the text of article 1, to reflect that further limitation use of those terms or to the meanings which may be in scope. It decided, however, to do so at its second given to them in the internal law of any State. reading of the draft, so as to take into account obser- vations of Governments. The Commission nevertheless decided, at the thirty-first session, to change the article Commentary "fes" before "matieres" to "des" in the French version of the title of the topic, and consequently of the title of (1) This article, as its title and the introductory words the draft articles, as well as in the text of article 1, in of paragraph 1 indicate, is intended to state the meaning order to align it with the other language versions. As ex- with which terms are used in the draft articles. 79 plained above, at its present session the Commission (2) Paragraph 1, subparagraph (a) of article 2 decided, on the basis of governmental observations, to reproduces the definition of the term "succession of entitle the final draft: "Draft articles on succession of States" contained in article 2, subparagraph 1 (b), of States in respect of State property, archives and debts".