【導(dǎo)讀】FRY/BadinterComm‘n)……………..…..8

　　

【正文】 Rights) has been limited primarily to decolonization o Q 3: Borders. Can internal boundaries b/t Croatia and Serbia and b/t BosniaHercegovinia and Serbia be regarded as frontiers in terms of PIL? ? A: Internal boundaries will remain as external boundaries. Uti possedetis – you shall possess what you have by law. o Slovenia and Croatia are instantly approved for EU o Q 4: Bosnia’s admission – ―will of the state‖ was not adequately proven (puzzling b/c BC said earlier Serbs not a ―people‖) ? Serbs hadn‘t manifested their will to be part of this new state. ? EC ended up recognizing Bosnia o Q 5: Macedonia’s admission – BC requires assurance they will refrain from hostile acts against another country (this is to satisfy Greece) ? Greece requested new name and flag to dissociate itself o Update: ? Feb 4, 2020: FRY adopted new Constitutional Charter, changing name to Serbia and Montenegro. Still divided。 referendum on state‘s future scheduled in 3 yrs. ? Badinter Commission opinions: IL provided guidance but this appears outedriven. IL does not always control (Aaland Islands jurists said in situations of transition, IL does not help as much) b. EXAMPLE 2: Canada 10 o Canadian court distinguishes between internal selfdetermination and external selfdetermination。 the former is a right exercised through the appropriate political process, while the latter is only available in extreme situations—namely: ? Foreign conquest ? Colonialism ? [Maybe] Blocked from meaningful exercise of internal selfdetermination – unclear whether this is established as international law o See also James Bay Crees for the definition of ―a people‖ c. EXAMPLE 3: EU approach to former Soviet states (Declaration on the ―Guidelines on the Recognition of new States in Eastern Europe and in the Soviet Union‖) o Criteria for recognition as a state (none of which are in Montevideo Convention) = respect for UN Charter。 guarantees for rights of ethnic and national groups and minorities。 respect for inviolability of all frontiers。 acceptance of all relevant mitments re: disarmament and nuclear nonproliferation。 mitment to settle by agreement all regional disputes o If these are lacking, won‘t get trade/aid/diplomatic relations C. SUCCESSION [case study = Former Soviet Union] 1. TREATIES a. Vienna Convention on Succession of States in Respect of Treaties (1978) ? DRAFTED BY STATES (default rules) ? Article 11: ―Moving boundary rule‖ – If A ceded a chunk to B, both boundary would be moved ? If absorption ? Article 15 (new state‘s treaty obligations control unless inpatible with object amp。 purpose of treaty). o Example = Britain‘s return of Hong Kong to China. Britain and China agreed that HK could remain party to some UK treaties. ? If decolonization ? Article 16 ―Clean Slate‖ rule o Assumption is that new state was strongarmed into those earlier treaties. ? If secession ? Article 34 ―Continuity‖ approach. Treaty that governed whole territory will continue to apply afterwards, unless ? Article 35: Position of Continued Predecessor State. When predecessor continues to exist after separation, treaties remain in force unless (1) states agree otherwise (2) treaty pertains only to that are which separated (3) inpatible with object and purpose of treaty b. Restatement (Third) of the Foreign Relations Law of the United States 167。 210 (1987)… [pp14041] ? DRAFTED BY ACADEMICS ? If merger ? Treaties of absorbing state (the new state) apply to whole new territory (successor state) ? If separated ? ―Clean Slate‖ approach wholly adopted。 doesn‘t matter whether new state decolonized or seceded. New state is not bound by previous agreements, unless they expressly accept those agreements. ? Assumes all treaties were entered into at a disadvantage o Additional concerns: ? Maybe the rule ought to vary depending on the TYPE of treaty… o HR treaties and navigation treaties: always rule of continuity. Unlikely they are entered into in such a way as to disadvantage one party over another. 11 ? FORMER SOVIET UNION o 1991 Commonwealth of Independent States issues Alma Ata declaration o Opted to apply continuity rule (ok b/c not decolonization) o US wants to do a casebycase review of each republic, but in interim will adopt continuity rule amp。 enforce all treaties… really concerned with knowing status of disarmament treaty relations。 now several nuclear powers. o Problem = many new countries didn’t know what treaties they may be a party to (all stored in Moscow) 2. PROPERTY (debts and assets of the former state) a. Vienna Convention on Succession of States in Respect of State Property, Archives, and Debts (1983) p149 ? Article 11 – Passing of Property without Compensation ? Article 18 – Dissolution ? Can sell and divide up the cash equitably among the successor States (or can just divide up the assets themselves) ? Article 36 – Creditors o Sucession does not affect rights and obligations of creditors ? Article 41 – Debt o If connected with a particular territory, that territory will assume the debt, and if it‘s for the USSR as a whole, it should be divided equitably ? Most states won’t need VC’s default rules—tend to negotiate agreements instead: o FORMER SOVIET UNION ? All negotiated (agreement fell apart and they fought over the Black Sea Fleet, etc) – no heavy reliance on Vienna Convention ? All divided roughly equitably… still some open issues. o FORMER YUGOSLAVIA ? In 1990s, all 5 successor states negotiated。 foreign embassies amp。 assets divided roughly based on mkt value 3. Membership in International Organizations a. FORMER SOVIET UNION ? Russia gets the USSR‘s seat on the security council (it‘s the biggest and richest country。 no other p