By Ara Papyan
“The question of state succession, especially when it comes to treaties, being under the purview of international public law, is of extreme importance at present in the practical sense. With the twin Armenia-Turkey protocols, and especially with the reference to “the relevant treaties of international law” in the first one, this issue has completely taken on a significance of direct applicability. The Turkish party interprets the expression “the relevant treaties of international law” as the treaties of Moscow (of the 16th of March, 1921) and Kars (of the 13th of October, 1921). Accordingly, our issue at hand is to briefly discuss a few points:1.
the question of state succession in general,2. the question of treaties in state succession,3. and particularly, the succession to the treaties of Moscow (of the 16th of March, 1921) and Kars (of the 13th of October, 1921) in the case of the Republic of Armenia.The Question of State Succession) The Armenian Soviet Socialist Republic, the Republic of Armenia and state succession “State succession is a definitive replacement of one state by another in respect of sovereignty over a given territory in conformity with international law.” Thus, state succession is no mere theoretical concept, but something derived from sovereignty.
State succession can occur only between two sovereign states. “Sovereignty is the exclusive right of a State to govern the affairs of its inhabitants – and to be free from external control”, and so it is evident that the Armenian Soviet Socialist Republic never was a sovereign state. And because the Armenian Soviet Socialist Republic was never a sovereign state, the Republic of Armenia consequently cannot be its successor state. From December of 1920 (when Armenia was occupied by an external military force, and the functioning decrees of the Russian Soviet Federative Socialist Republic became enforced as law in the Armenian Soviet Socialist Republic) until September-December 1991 (until the constitution, laws, and regulations of the Soviet Union remained in place), the Armenian Soviet Socialist Republic never had exclusive rights, neither over its own territory nor its own population. The second clause of the Declaration of Independence (of the 23rd of August, 1990) reinstated the sovereignty of the Republic of Armenia, “The Republic of Armenia is a self-governing state, endowed with the supremacy of state authority, independence, sovereignty, and plenipotentiary power. Only the constitution and laws of the Republic of Armenia are valid for the whole territory of the Republic of Armenia”.b)
The USSR, the Republic of Armenia and state successionState succession, in broad terms and, specifically, in terms of rights and obligations stemming from treaties, is not a question of the will or desire of the state, but is a legal consequence derived from the status, size and significance of the territory inherited by a given state. That is to say, what is decisive in this case is the legal status, as well as the size and significance, which the seceding territory or administrative unit had in the erstwhile state. When a new country arises on the core and dominant territory of the old one, it is referred to as a new state, bearing the succession to existing treaty rights and obligations. For example, when Austria-Hungary collapsed after the First World War, both Austria and Hungary inherited completely the rights and obligations of the former Austria-Hungary. However, Czechoslovakia and Poland, being newly independent states of the same empire, did not bear any succession, their case taking on the principle of tabula rasa (“a clean slate”).Naturally, each state comprises some territory. For the sake of convenience, let us refer to such territory as “politogenetic” or “state-creating”. If that territory had the status of former colonies or other territories dependent upon a dominant state for the conduct of foreign policy, then the principle of tabula rasa would be utilised in their cases. The logic is quite plain; the newly independent state cannot bear any responsibility for something – such as, for foreign policy – when it had absolutely no influence on its course of realisation.Clearly, when it came to foreign policy, as well as all other issues, really,
the Armenian Soviet Socialist Republic had the status of a dependent territory. Hence, the tabula rasa principle unquestionably applies to the Republic of Armenia.Moreover, the Armenian Soviet Socialist Republic could never pretend to be the core and dominant territory of the USSR, given its own territory and population. The Armenian Soviet Socialist Republic comprised about 0.14% of the area of the Soviet Union (29,800 km2 out of 22,402,200 km2), with almost 1.2% of the population (3.4 million out of 290 million).From the perspective of international law, fourteen newly independent states – including the Republic of Armenia – did not arise from the collapse of the USSR, as is often described in the media, but through the creation of new states by parts seceding from the parent state, the Soviet Union. Even after all that, Russia’s area continues to be much larger than the territories of all fourteen of those states combined. And for that reason, the Russian Federation was rendered the continuity of the USSR without question and so, as opposed to the other countries, it did not need to gain readmission to international organisations or to once again sign the international, multilateral or bilateral treaties of the USSR.The Secretariat of the United Nations Organisation has dealt with a similar issue on another occasion, namely, the creation of Pakistan out of India in 1947, and has given its outright legal opinion on the matter: “From the viewpoint of international law, the situation is one in which a part of an existing State breaks off and becomes a new State. On this analysis, there is no change in the international status of India; it continues as a State with all the treaty rights and obligations, and consequently, with all the rights and obligations of membership in the United Nations. The territory which breaks off, Pakistan, will be a new State; it will not have the treaty rights and obligations of the old State, and it will not, of course, have membership in the United Nations”.The legal clarifications made by the UN Secretariat conclude expressly that the seceding state does not bear succession to the treaty rights and obligations of the prior state.State Succession and TreatiesIn order to discuss any issue pertaining to international law, international conventions, whether general or particular, are considered to be primary sources.
One of the cornerstones in this regard is The Vienna Convention on Succession of States in respect of Treaties (1978). Although that document does not yet have very widespread signatories, nevertheless it is the most important starting point when it comes to this issue, as it consists of the sum of the decades-long work and experience of the International Law Commission.The Vienna Convention of 1978 has codified the following:– “A newly independent State is not bound to maintain in force, or to become a party to, any treaty by reason only of the fact that at the date of the succession of States the treaty was in force in respect of the territory to which the succession of States relates.” (Article 16, Position in respect of the treaties of the predecessor State)By the definition as per international law above, it is evident that general state succession – which is, in essence, consecutiveness – and the inheritance with regards to treaties, are two different legal phenomena. That is to say, a newly independent state does not at all imply that that state inherits the obligations codified by international law pertaining to that given territory as well. As mentioned, the most important factor in such cases is the legal status formerly borne by the “politogenetic” or “state-creating” territory. For the newly independent state of the Republic of Armenia, the tabula rasa principle was certainly put in place.
Nevertheless, certain documents of the Commonwealth of Independent States (CIS), as well as some international treaties, contain the expression, “USSR successor-states” (“государства-правопреемники СССР”). It is clear that this is more a matter of policy or status of general succession, in terms of property, debts, munitions, archives, etc. It does not and cannot pertain to state succession of treaties, for the founding declaration of the CIS (the Alma-Ata Protocols, of the 21st of December, 1991), simply codifies “the fulfillment of international obligations arising from treaties and agreements of the former USSR” without any question of succession, that too, only ‘in accordance with their constitutional procedures, that is, upon the corresponding ratification. (“Государства – участники Содружества гарантируют в соответствии со своими конституционными процедурами выполнение международных обязательств, вытекающих из договоров и соглашений бывшего Союза ССР. Алма-Ата 21 декабря 1991 г.”) Moreover, on the 6th of July, 1992, CIS heads of state signed a ‘Memorandum on Mutual Understanding on the Question of Succession to Treaties of the Former USSR Representing Mutual Interest’. In particular, the memorandum specifies that each state would decide for itself whether or not to succeed to a treaty, based on the nature and contents of a given treaty, ‘The question of participation in these treaties [of the former USSR] will be decided in accordance with the principles and norms of international law by each member-state of the Commonwealth independently, as per each specific case, character and contents of each given treaty’ (“Вопрос об участии в этих договорах [бывшего Союза ССР] решается в соответствии с принципами и нормами международного права каждым государством–участником Содружества самостоятельно, в зависимости от специфики каждого конкретного случая, характера и содержания того или иного договора”). For example, after that memorandum was accepted (on the 13th of August, 1992), Azerbaijan officially notified the Secretary-General of the UN that it is not the successor state of treaties of the Soviet Union, except for three treaties pertaining to human rights. The question of the succession of the Republic of Armeniato the treaties of Moscow (of the 16th of March, 1921) and Kars (of the 13th of October, 1921)It is imperative to emphasise that “the fulfillment of international obligations arising from treaties and agreements of the former USSR” does not and cannot pertain to the treaties of Moscow (of the 16th of March, 1921) and Kars (of the 13th of October, 1921) for a number of reasons:1. The aforementioned obligation has specific limits on time, that is, it applies only to the time period of the existence of the Soviet Union, from the 30th of December, 1922 to the 26th of December, 1991.2.
The aforementioned obligation has specific limits on parties to treaties. It does not apply to the so-called treaties of the Armenian Soviet Socialist Republic or the Russian Soviet Federative Socialist Republic. The obligations apply solely to those treaties signed by the USSR on behalf of the USSR.3. The aforementioned obligation has specific legal limits. It naturally applies only to legal treaties, that is, those signed in accordance with international law.4. The aforementioned obligation has specific constitutional limits. The obligation applies only as per those treaties which have been adopted by the Republic of Armenia ‘in accordance with … constitutional procedures’.Conclusion.1. The Republic of Armenia is not the successor to the administrative-territorial unit that was the Armenian Soviet Socialist Republic.2. The Republic of Armenia, being one of the states politically or historically arising from the USSR, does not bear any legal succession to any of its treaties.3. The Republic of Armenia does not bear any legal succession to the treaties of Moscow (of the 16th of March, 1921) and Kars (of the 13th of October, 1921).”Ara PapianHead of the Modus Vivendi Centre3 November, 2009 Ian Brownlie, Principles of Public International Law, (5th ed.) Oxford, 1998, p. 649. William R. Slomanson, Fundamental Perspectives on International Law, (3d ed.), Belmont, 2000, p. 206. Edwin D. Williamson, (Legal Adviser, U,S. Department of State), Treaty Succession and Related Issues in the wake of the Breakup of the USSR, p. 3. (“Panel on State Succession and Relations with Federal States,” March 31, 1992, Washington, D.C.) ibid. ibid., p. 4.
The Restatement of the Law (3d) of Foreign Relations Law of the United States reserves the tabula rasa principle not only for newly independent states but for all new states. SUCCESSION OF STATES AND GOVERNMENTS, DOCUMENT A/CN.4/149 AND Add. l; The succession of States in relation to membership in the United Nations: memorandum prepared by the Secretariat, Yearbook of the International Law Commission, 1962, vol. II, p. 101. Statute of the International Court of Justice, Article 38.1. a. The convention has been open to accession since the 22nd of August, 1978, coming into force on the 6th of November, 1996. The following countries are currently party to it: Bosnia and Herzegovina, Croatia, Cyprus, the Czech Republic, Dominica, Ecuador, Egypt, Estonia, Ethiopia, Iraq, Libya, Macedonia, Morocco, Saint Vincent and the Grenadines, Serbia, Seychelles, Slovakia, Slovenia, Tunisia and Ukraine (twenty states). I believe that the constant translation of the term “succession of states” into Armenian as something akin to “the inheritance of a state” has added further to the confusion. The succession more often simply implies a consecutive ordering of states. Меморандум о взаимопонимании по вопросу правопреемства в отношении договоров бывшего СССР, представляющих взаимный интерес от 6 июля 1992 г. // Действующее международное право: В 3 т., М., 1996, Т. 1, c. 492-493. Rein Mullerson, The Continuity and Succession of States, by Reference to the Former USSR and Yugoslavia, The International and Comparative Law Quarterly, vol. 42, No. 3 (July 1993), p. 490.