He plumped for a compromise: whilst Article 9 of the ILC Articles rejected unilateral declarations, Article 16 within the category of States’ provided for tacit consent of other ‘new parties to notification of succession to a multilateral treaty. This struck a middle position between the and camps by rejecting an obligation to succeed while rasa’ ‘continuity’ ‘tabula 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 independent States’ and distinguishing between ‘newly 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 movement to achieve economic redress nouvel ordre économique 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
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
EJIL%20Submission%20-%20Codifying%20the%20Law%20of%20State%20Succession%20-%20Main%20Document%20with%20Title%20Page.docx