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Government of Southern Sudan

(GoSS)
Office of the President
Ministry of Presidential Affairs

SOUTHERN SUDAN: A GUIDE TO


CRITICAL POST-2011 ISSUES

Legal Handbook

December 2009

In collaboration with

The Public International Law & Policy Group


December 5, 2009

Dear friends and colleagues:

In 2005 the Comprehensive Peace Agreement (CPA) ushered in a new chapter in Sudan’s
history. The Sudanese people began to know peace and stability, and together they began to
rebuild and work towards a more prosperous future for themselves and their children. Much has
transpired in the past five years. It has been a period marked by great advances and cooperation,
as well as notable challenges.

The people of Sudan will soon reach another milestone in their history. In 2011 the Interim
Period of the CPA shall come to an end and the people of Southern Sudan will participate in a
referendum in which they will decide whether to stay within a united Sudan or form their own
independent state. Both decisions are equally valid and will be respected by the Government of
Southern Sudan. Nevertheless, regardless the outcome of this referendum, the year 2011 marks
an opportunity for the people of South Sudan to demonstrate that the democratic reforms and
peace they have come to know in the past few years are not temporary, but rather permanent
expectations they have for Sudan in unity, or for a Sudan and a new Southern Sudan state in the
event of secession.

To ensure a smooth transition in 2011 the people of South Sudan must begin to work now to
prepare for the day after the referendum whether in unity or independence. Prior experiences in
other parts of the world show that the earlier these preparations take place, the more likely that
the process will be stable and lead to a durable peace. These preparations will require the efforts
and contributions of all the diversity of South Sudan’s leaders and people. All will need to come
together to devise common strategies to work for a stable and prosperous future. These joint
strategies and common visions will have to be translated into negotiations and preparations made
with the Government of Sudan and all relevant political parties.

The template for good governance in the event of unity is and will continue to be the CPA.
Between now and 2011, Southerners will need to prepare for unity by taking steps to examine
the system of governance established by the CPA and seek ways to enhance its implementation
and enshrine its democratic principles of inclusion and transparency, respect for diversity,
equitable wealth and power sharing, and human rights in all post-2011 governance. This is a
dialogue Sudanese are familiar with as it has been ongoing in Sudanese homes and universities,
as well as national, regional and international forums for the past five years.

Over the last five years, commitments to making unity attractive have taken precedence. The
CPA parties, however, have also consented to independence as a possibility. As such, the
Government of Southern Sudan takes seriously the responsibility it has to its people to prepare
for this possibility. While the CPA provides the framework for the relationship between the
Government of Sudan and the Government of Southern Sudan in the scenario of unity, the peace
agreement alternatively does not provide the same for the case of a vote for independence.
Therefore, the people of Southern Sudan also must now begin to engage in significant
discussions, examine the choices and decisions that may need to be made, and undertake much
needed preparations for the scenario of independence. Together with all of the political parties
and people of Southern Sudan, the Government of Southern Sudan must begin to prepare for and
then initiate discussions with the Government of Sudan about possible succession procedures.

While it is important to find uniquely Sudanese arrangements to satisfy post-2011 needs, relevant
international law and the experiences of other states which have gone through similar processes
can inform how Southern Sudanese prepare for the future. The attached report “Southern Sudan:
A Guide to Critical Post-2011 Issues” provides a brief overview of the common issues that are
uniquely relevant to Sudan in post-2011 such as wealth sharing, the rights of transboundary
populations, or the conclusion of inter-state agreements to promote bilateral cooperation and
continued interconnectedness between the Republic of Sudan and a possible independent state of
Southern Sudan. Relevant international law and prior state practice is surveyed at length in the
Guide.

This Guide is not offered as a prejudgment about the outcome of the 2011 referendum nor does it
offer an opinion on how these issues should be resolved. These decisions are to be taken by the
people of Southern Sudan. The Office of the President of the Government of Southern Sudan,
together with its legal advisors, the Public International Law & Policy Group, merely offer this
document to begin an informed discussion about these issues. The CPA places before the people
of Southern Sudan a choice in 2011. Preparing now for the possibility of independence, and not
just unity, is a matter of good governance. This guide can hopefully serve as a resource for
individuals and institutions in the ongoing preparations and planning, and it is in this spirit that
this Guide was prepared and made public.

The Government of Southern Sudan, along with the Public International Law & Policy Group
look forward to engaging over the next few months with all of the South’s people and its leaders,
as well as Sudan at large, on preparations to guarantee a permanent peaceful and prosperous
future for all the people of Sudan.

Sincerely,

Dr. Luka Biong Deng Paul R. Williams


Minister of Presidential Affairs Executive Director
Office of the President Public International Law
Government of Southern Sudan & Policy Group
SOUTHERN SUDAN: A GUIDE TO CRITICAL POST-2011 ISSUES

Executive Summary

As Sudan enters the final months of the Interim Period, considerable preparation
must be made to ensure a peaceful transition post-2011, no matter the outcomes of the
Southern Sudan and Abyei Area referenda. As both outcomes are equally valid and must
be respected by all parties, preparations for each are also needed. In particular, regardless
of whether the people of Southern Sudan choose unity or secession, all of the region’s
leaders and people will need to come together to devise common strategies to work for a
stable and prosperous future. These common strategies will likewise need to be applied
in negotiations and preparations made with the Government of Sudan, the Government of
Southern Sudan, and all relevant political parties.

At Naivasha in 2005, the Government of Sudan and Sudan People’s Liberation


Movement (SPLM) committed to making unity attractive through the full and good faith
implementation of the Comprehensive Peace Agreement (CPA). The CPA establishes
the “system of government” that the people of Southern Sudan have the option of
endorsing in a vote for unity in the 2011 Southern Sudan referendum. Over the past five
years, the SPLM and the Government of Sudan, together with the international
community, have made notable strides in implementing the CPA. However, in certain
respects, efforts have faltered and clearly fallen short of what many hoped for
immediately following the CPA’s conclusion. Making unity attractive, creating a
permanent peace, and increasing prosperity for Sudan post-2011 will require the SPLM
and the Government of Sudan to recommit to the full implementation of the CPA during
the remaining months of the Interim Period. A post-2011 unified Sudan would indeed
need to be founded on the full and good faith implementation of the CPA’s system of
government and democratic principles of inclusion and transparency, respect for
diversity, equitable wealth and power sharing, and respect for human rights.

While the CPA establishes a system of government designed to make unity


attractive, it also affirms and recognizes the right of the people of Southern Sudan to vote
for independence in 2011. For the past five years, the parties’ commitment to making
unity attractive has been the subject of repeated discussions by Sudanese officials and
citizens in numerous private and public forums throughout Sudan and the world, as well
as diplomats, experts, activists, and academics. This emphasis on making unity attractive
has been well placed. Unity is a valid choice in 2011 and preparations for this scenario
must continue through to 2011. In order to be adequately prepared for both scenarios,
however, there is equally a need to engage in serious discussions and preparations for a
potentially independent Southern Sudanese state. Notably, the parties’ commitment in
the CPA to making unity attractive does not preclude them from discussing potential
Southern secession. The CPA, in fact, requires such discussions by virtue of its
affirmation of the independence option in 2011, and the commitment of the parties to
work towards a permanent peace for their people after the Interim Period’s conclusion.
Discussions about secession no more prejudge the outcome of the referendum as do the
unity discussions of the past five years.

Additionally, while the CPA provides a clear framework for the governance
structures in the case of unity, it does not provide the same for the scenario of
independence. Thus, in order to begin to form the basis for this possibility, the SPLM,
along with the Government of Southern Sudan and all other political parties and people
within Southern Sudan, must prepare for and initiate discussions with the Government of
Sudan on procedures in the case of a possible succession, as well as on additional critical
issues relevant to Sudan post-2011. For the Government of Southern Sudan, preparing
now for the possibility of independence is a matter of good governance. For the SPLM it
is an obligation under the CPA. For the rest of the South, it is about effective
participation in the governance of one’s country and all of the possibilities for its future.
Indeed, concluding preliminary agreements on these matters now is important in order to
facilitate, in the event of secession, a smooth transition to Southern independence, and to
help secure and promote good neighborly relations, stability, and prosperity between the
Republic of Sudan and a possibly independent Southern Sudan in 2011 and beyond. This
in turn would ensure greater stability within the region in the event of independence,
particularly among Sudan’s nine neighboring states.

In January 2011, should the people of Southern Sudan vote for independence,
Southern Sudanese officials would need to take a number of steps to become an
internationally recognized independent state. These steps would include addressing,
through bilateral discussions and agreements with the Government of Sudan and
interaction with the international community, state succession issues such as: declaring
independence and seeking international recognition of Southern Sudan’s statehood;
defining the borders of Southern Sudan’s territory; dividing Sudanese state debts and
assets (including defense and military assets); continuing treaty obligations; obtaining
membership in international organizations; and establishing Southern Sudanese
citizenship. This is not the first time that a state has engaged in a process of succession.
Understanding prior state practice and current international law related to state succession
issues may assist the Southern Sudanese people and their leadership in preparations for
potential Southern independence in 2011. This guide provides a survey of relevant state
practice and international law, and offers a number of examples that may inform the
South’s decision-making on each of these state issues. (These issues are briefly
summarized below).

In addition to the more general state succession issues, the situation in Sudan may
also necessitate that the Government of Southern Sudan and the Government of Sudan
bilaterally address other critical post-2011 issues prior to the end of the Interim Period.
The conclusion of agreements addressing these other post-2011 issues, which include
wealth sharing, security, transboundary populations, and continued economic and
friendly relations, would serve to promote cooperation, development, and peace between
the Republic of Sudan and an independent Southern Sudan. As with the state succession
issues, current international law and prior state practice can help to inform the manner in
which Southern Sudanese officials approach discussions with the Government of Sudan
over these other post-2011 issues. This guide provides further detail on relevant state
practice and international law related to each of these additional post-2011 issues. (These
issues are briefly summarized below).

As one reads this Guide, it is important to note that it is not offered as a


prejudgment about the outcome of the 2011 referendum nor does it offer an opinion on
how these issues should be resolved. These decisions belong to the people of Southern
Sudan. However, as noted above, the CPA provides a framework for unity, but does not
offer a similar blueprint for independence. This document is therefore offered merely to
assist the South in preparing for and balancing its discussions about unity and secession,
and in doing so begin to inform itself not just about unity, but also about the necessary
considerations relevant to the possibility of independence. It is in this spirit that this
Guide was prepared.

State Succession Issues

Processes by which states break-up generally follow one of two models:


continuation or dissolution. The determination of whether a state succession follows a
model of continuation (whereby one of the entities to the break-up continues to assume
the duties and obligations of the original or predecessor state) or a model of dissolution
(whereby the original or predecessor state is deemed to cease to exist) can affect the
manner in which state succession issues are addressed. If Southern Sudan secedes from
the Republic of Sudan pursuant to the 2011 referendum, the secession will almost
certainly be defined as a continuation. Based on the language of the CPA and application
of international norms, the Republic of Sudan will be considered the “continuing state”
and Southern Sudan will be considered a newly independent or “successor state.” When
a state goes through a succession, its constituent parts may need to address a number of
issues. As described in greater detail in this Guide, these issues include the following:

Declaring Independence and Seeking Recognition

Following a vote for independence, Southern Sudan would need to formalize its
independence through recognition by the international community. The international
community has observed and demonstrated respect for the right of the people of Southern
Sudan, as affirmed in the CPA, to vote in a final status referendum in 2011, the outcome
of which may result in Southern secession. Through the CPA, the Government of Sudan
has also consented to this outcome, should it be the result of the Southern Sudanese
peoples’ exercise of self-determination. These two factors place Southern Sudan in a
favorable position, as compared to other states that have gone before it and sought
independence and international recognition of the same. However, even if a free and fair
referendum results in a decision to secede and the Southern Sudan Legislative Assembly
subsequently adopts a resolution, constitutional amendment, or other legislative act
declaring independence, past experiences throughout the world indicate that Southern
Sudan will still need to demonstrate that it has met international standards for statehood
in order for the international community to recognize it as an independent state. The
international community may use two distinct approaches to recognize the independence
of Southern Sudan: (1) a declarative approach in regards to traditional law governing the
recognition of states, or (2) earned sovereignty, which would establish a process to
review the circumstances surrounding Southern Sudanese statehood and offer
recommendations on the same. Each of these approaches is explained in greater detail in
the main text of the guide. Notably, state practice concerning the international
community’s recognition of newly independent states is largely dependent on political
factors.

Defining the Borders of the New State’s Territory

Unless a new state and its bordering states agree to change their common borders,
international law and state practice hold that all borders shall remain the same in the
event of secession. The CPA calls for the Technical ad hoc Border Committee to define
and demarcate the north-south border as it was on January 1, 1956. The CPA’s use of the
provincial borders as they were at Sudan’s independence is premised on the doctrine uti
possedetis, which provides that “newly decolonized states should inherit the colonial
administrative borders they held at the time of independence.” As “defined territory” is
one of the four criteria of statehood under the traditional law governing recognition of
states, it is important that the Technical ad hoc Border Committee complete its
delimitation of the north-south border prior to the Interim Period’s conclusion. That said,
it must be remembered that new states can emerge and be recognized as such, even if part
of their borders are left undefined or are in dispute.

Allocating State Assets and Debts

In preparation for potential secession from the Republic of Sudan and to ensure
the continued development and prosperity of both nations, Southern Sudan may need to
address the question of allocation of assets and debts with the Government of Sudan. A
significant role will be played in these negotiations by public and private creditors of
Sudan, as they will seek to approve aspects of any asset and debt agreement that affect
their interests. International law and state practice indicate that state assets and debts are
generally divided into two categories: national and territorial. States apply different
methods or formulas to allocate national and territorial assets and debts. National debt is
debt that a state incurs when it borrows monies to benefit the state as a whole, while
national assets are assets that benefit the state as a whole and are not identifiable with a
particular territory within the state. National debts are typically allocated in some
equitable fashion. Alternatively, territorial debt is debt that a state incurs when it borrows
monies from an entity to fund a project connected to a particular portion of the state’s
territory, while territorial assets are assets located within, or otherwise connected to, a
particular part of a state’s territory. States generally apply the “territorial principle” when
dividing territorial assets, which provides that the predecessor state’s immovable assets
pass to the state in which those assets are located at the time of the predecessor state’s
break-up. In this context, Southern Sudan would also need to consider the division of
military assets and diplomatic properties abroad.

Obtaining Membership into International Organizations

If there is a vote for independence in 2011, Southern Sudan may wish to focus on
applying for membership in two types of international organizations: global and regional
organizations (i.e. the United Nations, the African Union, the Intergovernmental
Authority for Development, and the Nile Basin Initiative), and financial or trade
organizations (i.e. the International Monetary Fund and the World Bank). To do so,
Southern Sudan would need to begin dialogues with each of these organizations to clarify
how it may obtain membership. For example, succeeding to membership in the
International Monetary Fund is a lengthy and involved process separate from applying to
membership in the United Nations. As such, Southern Sudan may wish to begin
discussions now with International Monetary Fund to ensure continued access to loans
and to maintain the ability to service debt after achieving possible independence.
Generally, state practice demonstrates that the modern law and policy of succession to
membership into international organizations will be determined by: (1) the procedures
and the constitutional provisions of the particular organization; (2) the characterization of
the breakup as a dissolution or a continuation; and (3) the interest of other states in
recognizing the predecessor and successor states’ claims.

Continuing Treaty Obligations

An examination of international legal principles demonstrates that a successor


state, which is what Southern Sudan would become if secession was the outcome in 2011,
has the option of choosing which treaties signed by the predecessor/continuing state (the
Republic of Sudan) it would like to uphold. However, based on recent state practice, the
international community would likely expect an independent Southern Sudan to continue
the Republic of Sudan’s treaty obligations. Exceptions to this presumption of continuity
occur when: (1) both parties agree otherwise, (2) the treaty is not relevant to the new
state’s territory, or (3) continuity would frustrate the treaty’s object and purpose. In
advance of 2011, Southern Sudan may wish to identify all international treaties and
agreements that potentially fall under such exceptions and thus would not continue to
apply to Southern Sudan after independence. Furthermore, Southern Sudan may wish to
consider that prior state practice indicates that it is common for successor states to
provide affirmative assurances to the international community regarding their respect for
the rule of law and their intentions to abide by the terms of the predecessor state’s treaty
obligations as part of the process of achieving international recognition and establishing
diplomatic relations. In some instances, new states must also deposit an instrument of
accession with the appropriate treaty depository to affirm a commitment to be bound by a
treaty’s terms.

Establishing Southern Sudanese Citizenship

In approaching the potential of Southern Sudanese secession in 2011, the


Government of Southern Sudan may want to consider how it will address citizenship
rights both in terms of its own laws and regulations as a sovereign independent state, as
well as in terms of possible agreements with the Government of Sudan. Such agreements
may, in turn, affect those who qualify for citizenship in the Republic of Sudan and the
rights of Southerners located in the North. There are no universally accepted
international norms or standards that dictate states’ decisions on this issue. Indeed, under
international law, states are accorded great leeway in determining citizenship criteria,
which extends to situations of state succession. However, several international
organizations and institutions have adopted non-binding declarations concerning
citizenship within the context of state succession. These declarations generally
discourage discrimination in determining nationality after a succession process, seek to
avoid statelessness for individuals found on either side of a new international border, and
advocate for a system that provides individuals affected by the state succession with an
option to freely choose their future citizenship. These declarations also encourage states
to grant citizens a “reasonable” time to make decisions related to their citizenship and
discourage linking this decision to property.

Other Post-2011 Issues

In addition to the state succession issues identified above, in the event of


secession, the Government of Southern Sudan would simultaneous need to consider other
post-2011 issues critical to the South’s maintenance of a peaceful, stable, and prosperous
relationship with the Republic of Sudan.

Wealth Sharing Related to the Oil Sector

In preparation for potential Southern secession, the Government of Southern


Sudan and the Government of Sudan may negotiate, in advance of the referendum,
arrangements concerning how the nation’s resource wealth, including water, land, and
oil, will be shared and managed post-2011. With respect to oil in particular, in the event
of Southern secession, the Government of Southern Sudan will have exclusive
sovereignty over oil wells located in Southern Sudan, and will not be obligated to share
its oil revenues with the Republic of Sudan. However, no matter the Technical ad-hoc
Border Committee’s ultimate definition of the north-south border, some oil reserves are
likely to be left straddling the border between the Republic of Sudan and Southern Sudan
in 2011. State practice indicates that inter-state wealth sharing agreements concluded to
resolve border disputes or to realize revenues from oil fields straddling international
borders generally fall into one of two categories: (1) joint development zones or joint
development arrangements (JDZs), or (2) unitization agreements.

As explained in greater detail in this Guide, a joint development zone (JDZ) is an


area over which neither state can exercise full sovereignty, but where the two states agree
to jointly exploit the area’s resources. State practice demonstrates that three JDZ
management structures exist: (1) a single state structure, (2) a two state or joint venture
structure, and (3) a joint authority structure. The distinction between these structures
centers on which state ultimately manages the area’s resources, and collects and
distributes the revenues. Two sovereign states may also enter into unitization agreements
to exploit resources that cross the states’ shared boundary. Such agreements treat the
resource as a single deposit, in order to facilitate exploitation irrespective of the location
of an international border or any demarcation disputes. Thus, a unitization agreement
allows state parties to exercise sovereign rights over the territory, but jointly manage the
resource.

Inter-State Pipeline Agreements

Currently, Southern Sudanese oil is exported to international markets via two


major pipelines: the Greater Nile Oil Pipeline and the Meulut Basin Pipeline. Should
Southern Sudan secede in 2011, both these pipelines will cross an international border.
In this scenario, the South will continue to rely, at least in the near future, on these major
pipelines, as well as subsidiary pipelines and other oil infrastructure located in the North,
to export its oil to international markets. To address arrangements to facilitate this
export, the Government of Sudan and the Government of Southern Sudan will likely need
to conclude a pipeline use, management, and rental agreement. State practice indicates
that landlocked states may use inter-state pipeline agreements or projects as a means to
efficiently export oil and natural gas. Such agreements or projects generally afford the
state through which the pipeline runs a transit fee, payable in either cash or the exported
natural resource.

Security

The structure and implementation of security arrangements are among the critical
issues states confront following violent conflict or state secession. The CPA, the Interim
National Constitution, and the Interim Constitution for Southern Sudan provide a
framework for security arrangements during the Interim Period, as well as clear
provisions related to the manner in which the Sudan Armed Forces (SAF) and the Sudan
People’s Liberation Army (SPLA) shall form one force in the event of a vote for unity
(with the Joint Integrated Units (JIUs) serving as the nucleus of the single national army)
or continue as two separate forces in the event of secession. These provisions, however,
do not detail the actual implementation of this process. As such, the Government of
Southern Sudan may pursue an agreement with the Government of Sudan to rectify this
shortcoming. As explained in greater detail in this Guide, state practice illustrates the
various frameworks other states have used to structure and implement post-conflict and
post-succession security arrangements.

Inter-State Transboundary Population Movement

Along and across the internal north-south border of Sudan – the final definition of
which is pending before the Technical ad-hoc Border Committee – numerous tribal
groups seasonally move with the dry and wet seasons of Sudan as they seek water and
pasture for their animals and other livelihood activities. Should Southern Sudan secede
in 2011, this internal border would become an international border. To maintain peace
and foster prosperity, the Government of Sudan and Government of Southern Sudan will
need to create mechanisms through agreements to preserve traditional rights to graze and
move through the border areas. Related agreements existing in Africa and the Middle
East indicate that states generally include inter-state grazing agreements in international
border agreements. These inter-state grazing agreements typically define a shared
grazing zone, usually straddling the parties’ mutual border, and enumerate particulars
regarding: the zone’s collective use and management; health and security concerns; the
residency of those who migrate; the need to move with passports, visas, or other
identification documents; the imposition of taxes and duties, if any; dispute resolution
mechanisms; and the law that is applicable – including the customary laws of the peoples
concerned.

Furthermore, the Government of Southern Sudan may consider concluding with


the Government of Sudan an inter-state agreement addressing other transboundary
movements apart from grazing, such as those for traditional or economic purposes. State
practice indicates that such agreements vary widely in level of detail, as well as in what
specific issue or issues on which the agreements focus. Most inter-state cross-border
movement agreements establish a type of documentation that the government will
provide to the benefited class of people, such as a border or identification card that allows
for easier passage across the border. Some agreements define border areas in which free
movement is allowed, while other agreements provide that the allowed cross-border
movement areas will be defined individually. Many of the agreements determine the
length of time an individual is allowed to stay in the other state before s/he must cross
back into his home state.

Bilateral and Multilateral International Cooperation

In addition to concluding agreements on succession procedures, in anticipation of,


or following, potential Southern secession, the Government of Sudan and the
Government of Southern Sudan may enter into bilateral agreements addressing common
interests. Such agreements may ensure continued north-south economic cooperation and
interconnectedness between the Republic of Sudan and an independent Southern Sudan.
There are many types of agreements that states may enter into to develop or strengthen
bilateral or multilateral relationships with other states. While many agreements that are
in force today deal with economic relations, such as bilateral investment treaties, free
trade arrangements, and customs union agreements, states also continue to sign
agreements that govern security relationships (i.e. non-aggression compacts) and
relationships over the use of shared environmental resources, as well as agreements that
foster education, cultural exchanges, and overall good general relations. Establishing
formal relations through bilateral agreements may create economic incentives for the
Republic of Sudan and a newly independent Southern Sudan to maintain peaceful
relations post-2011.

________________

The international law and state practice explained in this Guide does not
extensively cover all succession and critical post-2011 issues in the event of secession.
For instance, a peaceful and sustainable Sudan post-2011 is only possible if efforts are
made to ensure that popular consultation processes in Southern Kordofan and Blue Nile
are carried out and lead to results that are acceptable to the people of those two
Transitional Areas. The parties will also need to make further efforts to define the north-
south border, resolve disputes about the same, and agree to peacefully work around those
disputes where possible. Additional efforts must also be made to continue to address
considerations relevant to the possibility of unity.

While this Guide does not address every issue of importance in a post-2011
scenario, it does provide an overview of some of the most critical issues that Southerners
will face, particular if a vote for secession occurs in 2011. Prior state practice
demonstrates that peace, stability, and prosperity following state secession can be best
reached through advance preparation. This guide offers the people of Southern Sudan
and their leaders some preliminary tools and background to begin a dialogue and design a
common vision and strategy for shaping what the region will look like in 2011 and
beyond.
TABLE OF CONTENTS

Statement of Purpose 1

Introduction 1

Definitions 2

Declaring Independence and Seeking Recognition 3


The Declarative Approach: Traditional Law Governing Recognition of States and
the Establishment of Diplomatic Relations 3
The Process of Earned Sovereignty 4

Defining the Borders of the New State’s Territory 6


International Law 6
Uti Possidetis 6
States Existing with Disputed Borders 7

Allocating State Assets and Debts 8


Allocating State Assets 8
Division of Assets 9
Territorial Assets 10
National Assets 12
Allocation of Military Property 13
Allocation of Diplomatic Properties Abroad 14
International Opinion 15
Allocating State Debts 16
Division of Debts 16
Territorial Debts 17
National Debt 18
Repayment Conditions 21
Approaches to Negotiating Debts 24
Negotiated Agreements 24
Creditors’ Determination 25

Obtaining Membership into International Organizations 28


Global Organizations 28
Former Soviet Union 28
Former Czechoslovakia 29
Regional Organizations 30
International Financial and Trade Organizations 30
International Monetary Fund 30
The IMF Articles of Agreement 30
IMF Membership in the Context of State Succession 31
Relationship between Membership in the UN and the IMF 33
World Bank Group 33

Continuing Treaty Obligations 36


The 1978 Vienna Convention on Succession of States in Respect of Treaties 36
Recent State Practice 36
Presumption of Continuity 37
Affirmation of Commitment to be bound by Treaties 38
Former Soviet Republics 39
Czech and Slovak Republics 39

Establishing Southern Sudanese Citizenship 40


International Law regarding Citizenship in the Context of State Succession 40
State Practice: Citizenship in the Context of State Succession 42
Eritrea and Ethiopia 42
Montenegro and Serbia 45
The Czech and Slovak Republics 46
Former Yugoslav Republics – Slovenia, Croatia, and Macedonia 48

Wealth Sharing Related to the Oil Sector 49


Joint Development Zones (JDZs) 49
Single State Structure for JDZs 50
Qatar and Abu Dhabi 50
Two State or Joint Venture Structure for JDZs 50
Australia and East Timor 50
Joint Authority Management Structure of JDZs 51
Nigeria and Sao Tome and Principe 51
Inter-state Unitization Agreements 52
Australia and East Timor 52
United Kingdom and Norway 52

Inter-State Pipeline Agreements 54


Oil Pipelines 54
Pipelines in Africa 54
The Chad-Cameroon Petroleum Development and Pipeline Project
(CCPP) 54
Pipelines in Conflict Zones 56
The Baku-Tiblisi-Ceyhan (BTC) Pipeline (Azerbaijan to Turkey
via Georgia) 56
Pipelines Affected by Changes in Sovereignty 57
The Druzhba Pipeline (Former Soviet Union) 57
Shipper Owned and Operated Pipelines 60
The Caspian Pipeline Consortium (CPC) Pipeline (Kazakhstan to
Russia) 60
Gas Pipelines 61
TransMed Pipeline (Algeria to Italy via Tunisia) 61

Security Arrangements 63
Security Arrangements in the Context of State Succession 63
Serbia and Montenegro 63
Post-Referendum Security Arrangements in Montenegro 64
Post-Referendum Security Arrangements in Serbia 65
Outcomes and Conclusions 65
Czech Republic-Slovakia 67
Post-Partition Security Arrangements in the Czech Republic 67
Post-Partition Security Arrangements in Slovakia 67
Outcomes and Conclusions 68
Kosovo 69
Post-Conflict Security Arrangements 70
Outcomes and Conclusions 71

Inter-State Transboundary Population Movement 72


Inter-State Grazing Agreements State Practice 72
Kenya-Ethiopia 72
Saudi Arabia-Yemen 74
Algeria (France) – Libya 75
Inter-State Cross-Border Movement Agreements State Practice 76
Agreements that Address Traditional Cross-Border Movement 76
Indonesia – Papua New Guinea 76
Cross-Border Agreements Benefiting Area Residents 79
Ukraine – Poland 79
Tunisia – Algeria 80
Austria – Germany 81
Cross-Border Movement Agreements Addressing Specific Needs 82
Estonia – Latvia 82
Lesotho – South Africa 83
Bilateral and Multilateral International Cooperation 85
Economic Cooperation: Bilateral Investment Treaties (BITs) 85
South Africa – Mozambique 86
Economic Cooperation: Customs and Duties 87
Southern African Customs Union (SACU) 87
MERCOSUR (“The Common Market of the Southern Cone”) 88
Economic Community of West African States (ECOWAS) 89
Economic Cooperation: Free Trade Agreements 90
Asia-Pacific Economic Cooperation (“APEC”) 90
South Africa – Malawi 91
Economic Cooperation: Other Agreements 91
Environmental Cooperation 92
Security Cooperation 93
Czech Republic & Slovakia 93
Democratic Republic of Congo – Uganda 94
Friendship and General Cooperation 95
Spain – Morocco 95
Ukraine – Azerbaijan 97

About the Public International Law & Policy Group 98


SOUTHERN SUDAN: A GUIDE TO CRITICAL POST-2011 ISSUES

Statement of Purpose

For the past five years, Southern Sudan, through the Sudan People’s
Liberation Movement (SPLM) and the Government of Southern Sudan (GoSS),
has engaged with the Government of Sudan and the international community on
the steps and preparations necessary to make unity attractive both before and, to a
certain extent, after 2011. Indeed, the SPLM and the Government of Sudan agreed
in the Comprehensive Peace Agreement (CPA) to make unity attractive to the
people of Southern Sudan through the full and good faith implementation of the
agreement. To date, however, there has been little public discussion regarding the
preparations the parties, in particular Southern Sudan, must make for the
possibility of a vote for Southern independence in 2011. To this end, the South
may wish to conclude, prior to the Southern Sudan referendum, preliminary
agreements with the Government of Sudan on issues typically associated with state
succession, as well as other post-2011 issues critical to facilitating a peaceful
transition at the close of the CPA’s Interim Period. If the Southern Sudan
referendum results in a vote for secession, advance agreement on these matters
may help to secure and promote good neighborly relations, stability, and prosperity
between the Republic of Sudan and an independent Southern Sudan post-2011. By
describing relevant international law and state practice related to succession issues
and other post-2011 matters unique to Sudan, this guide aims to prepare the people
of Southern Sudan and their leaders to make strategic decisions on how to
negotiate critical post-2011 issues in advance of the referendum and in the event of
a secession outcome.

Introduction

If Southern Sudan secedes from the Republic of Sudan pursuant to the 2011
referendum, the break-up of the state will be designated as either a continuation or
a dissolution. The determination of whether the break-up of a state follows a
model of continuation or dissolution can affect the manner in which state
succession issues are addressed. In the case of Sudan, the break-up will almost
certainly be defined as a continuation. Based on the language of the
Comprehensive Peace Agreement and the application of international norms, the
Republic of the Sudan will be considered the continuing state and Southern Sudan
will be considered a newly independent or successor state. This guide should be
read accordingly. However, this guide also includes state practice from both
continuation and dissolution models of state succession in order to provide the

1
reader with a comprehensive review of both processes, as well as other issues
Southern Sudan will likely need to address prior to and immediately following the
Southern Sudan referendum.

Definitions

Continuation refers to the replacement of one state by another in the responsibility


for the international relations of the state in conformity with international law.

Dissolution refers to the event in which a state dissolves into a number of


successor states, none of which are considered the continuing state.

Predecessor State refers to the state previously consisting of the breakaway and
continuing states or the successor states.

Continuing State refers to the state that maintains the identity of the predecessor
state in the event of continuation.

Successor State refers to any state emerging from a continuation or dissolution.

2
DECLARING INDEPENDENCE AND SEEKING RECOGNITION

Should the people of Southern Sudan vote for independence in 2011,


Southern Sudan will need to formalize its independence through recognition from
the international community. The international community has observed and
demonstrated respect for the right of Southern Sudanese, as affirmed in the
Comprehensive Peace Agreement (CPA), to vote in a final status referendum in
2011, the results of which may lead to the South seceding from the Republic of
Sudan. Through the CPA, the Government of Sudan has also consented to
Southern secession, should it be the result of the people of Southern Sudan’s
exercise of self-determination. These two factors place Southern Sudan in a
favorable position, as compared to other states that have gone before it and sought
independence and international recognition of the same. However, even if a free
and fair referendum results in a decision to secede and the Southern Sudan
Legislative Assembly subsequently adopts a resolution, constitutional amendment,
or other legislative act declaring independence, past experiences throughout the
world indicate that Southern Sudan will still need to demonstrate that it has met
international standards for statehood in order for the international community to
recognize it as an independent state.

The international community may use two distinct approaches to recognize


the independence of Southern Sudan: (1) the declarative approach, or (2) the
process of earned sovereignty. Notably, state practice concerning the international
community’s recognition of newly independent states is largely dependent on
political factors.

The Declarative Approach: Traditional Law Governing Recognition of States


and the Establishment of Diplomatic Relations

Under the declarative approach, when an entity meets a set of objective


criteria, the international community will treat that entity as a state, regardless of
the means of its coming into existence. For an entity to be considered a state under
the declarative approach to recognition, the entity typically must possess the
following four criteria: (1) a defined territory; (2) with a permanent population; (3)
which is subject to a government; (4) and is sovereign or capable of conducting
international relations.1

1
See The Montevideo Convention on Rights and Duties of States, 28 A.J.I.L. Supp. 75, art. 1 (1934), available at
http://www.taiwandocuments.org/montevideo01.htm.

3
The Process of Earned Sovereignty

Instead of using the declarative approach, members of the international


community may choose to establish (formally or informally) a process to
determine criteria for a specific entity’s statehood, review the entity’s ability to
meet that criteria, and then recommend recognition or further steps to be taken for
recognition. This approach is called “earned sovereignty.”2 Under the process of
earned sovereignty, there are usually three core elements that make up the
framework for the transition process to recognized statehood:3

1. Shared sovereignty—an international institution shares sovereignty with


the state.

2. Institution Building—with the assistance of the international community,


the new state creates institutions that are able to take on responsibility as
the state transitions to self-rule.

3. Eventual determination of final status—this could take the form of a


referendum or a negotiated date.

In many ways, Southern Sudan has already passed through much of this earned
sovereignty period (particularly stage 2), and is now approaching stage three—the
eventual determination of final status, which, for Southern Sudan, will take the
form of a referendum.

If the people of Southern Sudan vote for independence during this third
stage, under earned sovereignty, the international community will establish, on a
case-by-case basis, criteria for statehood. Generally, the criteria for states to obtain
recognition through earned sovereignty have included: (1) encouraging democratic
principles; (2) accepting international obligations; (3) participating in diplomacy
and cooperation; (4) respecting international law; (5) upholding human rights; (6)
protecting the rights of minorities; (7) committing to nuclear non-proliferation; and

2
Paul Williams, Earned Sovereignty: The Road to Resolving the Conflict over Kosovo’s Final Status, 1 DENVER
JOURNAL OF INTERNATIONAL LAW & POLICY 387, 389 (2003).
3
Paul Williams, Earned Sovereignty: The Road to Resolving the Conflict over Kosovo’s Final Status, 1 DENVER
JOURNAL OF INTERNATIONAL LAW & POLICY 387, 389 (2003).

4
(8) respecting the sovereignty and borders of other states.4 Final decisions on a
specific entity’s statehood will generally be based on the entity’s history, its
current political stability, and how much more development the entity will require
before it can be self-supporting.

4
European Community, Declaration on Yugoslavia and on the Guidelines on the Recognition of New States, 31
I.L.M. 1485 (Dec. 16, 1991).

5
DEFINING THE BORDERS OF THE NEW STATE’S TERRITORY

Unless a new state and its bordering states agree to change their common
borders, international law and state practice hold that all borders shall remain the
same when there is a break up of a state. The Comprehensive Peace Agreement
calls for the Technical ad hoc Border Committee to define and demarcate Sudan’s
north-south border as it was on January 1, 1956. The Comprehensive Peace
Agreement’s use of the provincial borders as they were at Sudan’s independence is
premised on the doctrine uti possedetis. As “defined territory” is one of the four
criteria of statehood under the conventional approach to state sovereignty, it is
important the Technical ad hoc Border Committee complete its delimitation of the
north-south border prior to the Interim Period’s conclusion. That said, although a
region seeking independence should have a defined territory,5 there is no
requirement that the frontiers of the region be fully delineated before that region
may achieve statehood.6 State practice indicates that states exist with disputed
borders.

International Law

Uti Possidetis

The doctrine of uti possidetis provides that “colonial administrative


boundaries will become international boundaries when a political subdivision or
colony achieves independence.”7 Burkina Faso and the Republic of Mali
submitted a dispute concerning a part of their common border to the International
Court of Justice.8 The Court found that it could not disregard the principle of uti
possidetis, which was applied for the purpose of “securing respect for the territorial

5
The Montevideo Convention on Rights and Duties of States, 28 A.J.I.L. Supp. 75, art. 1 (1934), available at
http://www.taiwandocuments.org/montevideo01.htm. See also Restatement (Third) of Foreign Relations Law, §
201 (1986) (setting forth the same requirements as the Montevideo Convention in defining a state as “…[an] entity
that has a defined territory and a permanent population, under the control of its own government, and that engages
in, or has the capacity to engage in, formal relations with other such entities.”).
6
“There must, second, be a territory in which the people is settled, although there is no rule that the land frontiers of
a State must be fully delimited and defined; they may indeed be disputed.” L. Oppenheim, INTERNATIONAL LAW: A
TREATISE note 3 at 121. In addition, a state will not necessarily cease to be a state if all of its territory has been
occupied by a foreign power, if it temporarily loses control of its territory, or if it has any other type of boundary
dispute. See Chen Ti-Chiang, THE INTERNATIONAL LAW OF RECOGNITION 56 (L.C. Green ed., 1951).
7
BLACK’S LAW DICTIONARY (8th ed. 2004). The principle was initially applied to settle border disputes arising
from decolonization struggles in the Americas and Africa.
8
Case Concerning the Frontier Dispute (Burk. Faso v. Mali) 1986 I.C.J. 554 (Dec. 22, 1986). Monroe Leigh, 81
AMERICAN JOURNAL OF INTERNATIONAL LAW 441-414 (Apr. 1987).

6
boundaries [as they exist] at the moment independence is achieved.”9 The Court
further elaborated that the principle of uti possidetis developed into a general
concept of international law, “logically connected with the phenomenon of
obtaining independence, wherever it occurs.”10

Further, Opinion 3 of the Badinter Arbitration Commission (Badinter


Commission) relied on uti possidetis in finding that all of the internal borders of
the former Yugoslavia would become frontiers protected by international law,
except where otherwise agreed.11 The Badinter Commission affirmed that its
“[c]onclusion follows from the principle of respect for the territorial status quo
and, in particular, from the principle of uti possidetis.”12 In Opinion 3, the
Badinter Commission elaborated that except where otherwise agreed, a region’s
boundaries will become international boundaries in cases of succession.13

States Existing with Disputed Borders

In contemporary times, new states have emerged and been recognized as


such even where disputes continue along some of the states’ borders. Such border
disputes may leave a state’s territory without full definition. For instance, after the
former Soviet Union’s dissolution, Estonia, Latvia, and Lithuania rejected the
conversion of the former Soviet Union’s internal borders into external frontiers
protected by international law. These states argued that their new borders should
reflect the territory they lost in their incorporation by the Soviet Union.14
However, the other Baltic states agreed to retain the Soviet Union’s administrative
borders, a view codified in the 1993 Charter of the Commonwealth of Independent
States.15 However, border disputes between Russia and Estonia, and Latvia and
Lithuania remain unresolved.16

9
Case Concerning the Frontier Dispute (Burk. Faso v. Mali) 1986 I.C.J. 554 at 565, para. 23 (Dec. 22, 1986).
10
Case Concerning the Frontier Dispute (Burk. Faso v. Mali) 1986 I.C.J. 554 at 565, para. 23 (Dec. 22, 1986).
11
Article 5, paras. 2, 4 of the Constitution of the former Yugoslavia maintained that the Republics' territories and
boundaries could not be altered without their consent.
12
Conference on Yugoslavia, Badinter Arbitration Commission Opinion No. 3, 31 I.L.M. at 1499 (Jan. 11, 1992).
13
Conference on Yugoslavia, Badinter Arbitration Commission, Opinion No. 3, 31 I.L.M. at 1499 (Jan. 11, 1992).
14
See generally Stephen Ratner, Drawing a Better Line: Uti Possidetis and the Borders of New States, 90 A.M.J.I.L.
590 (Oct. 1996). In 2005, Estonia and Russia negotiated a treaty ending their border dispute, although in the end
Russia withheld its signature, while Estonia’s Parliament ratified the treaty. Russia and Latvia have yet to conclude
an agreement putting an end to their border dispute.
15
Charter of the Commonwealth of Independent States, art. 3 (1993), available at
http://untreaty.un.org/unts/120001_144071/6/8/00004863.pdf.
16
See CIA World Fact Book, Disputes – International, available at https://www.cia.gov/library/publications/the-
world-factbook/fields/2070.html.

7
ALLOCATING STATE ASSETS AND DEBTS

In preparation for potential secession from the Republic of Sudan, Southern


Sudan will likely negotiate the allocation of assets and debts with the Government
of Sudan. International financial institutions and international creditors will play a
part, as well, in these negotiations. International law and state practice indicate
that state assets and debts are generally divided into two categories: national and
territorial. States apply different methods or formulas to allocate national and
territorial assets and debts. Furthermore, Southern Sudan may also need to
consider the allocation of military assets and diplomatic properties abroad, as well
as the opinions of international creditors and third-party states.

Allocating State Assets

An asset is a resource of value, to which a state or entity has access or a


present right. Access and present rights may include the right of ownership of the
asset, the right to use the asset, and the right to employ the asset to the state or
entity’s economic advantage.

An asset typically has three characteristics. First, an asset has an economic


value to the state or entity that owns it. Second, the state or entity has rights or
privileged access to the asset. Third, the economic value of the asset and the rights
associated with the asset exist simultaneously.17 Assets may include, among other
things, manufacturing plants, mineral deposits, various forms of financial capital,
diplomatic properties around the world, as well as contractual rights enforceable
against third parties.18

The predecessor state’s assets are defined as the property, rights, and
interests that the predecessor state owned according to the internal laws of that
state.19 However, in order to be characterized as such, the predecessor state must
have owned those assets at the date of the succession.

17
International Accounting Standards Board, Asset Definition, World Standard Setters Meeting, Sept. 2006
available at http://www.iasb.org/NR/rdonlyres/8049CA20-8EA4-4E9B-BBDD-
1988CEB6D78E/0/WSSAGENDAPAPER1A.pdf.
18
Tai Heng-Cheng, STATE SUCCESSION AND COMMERCIAL OBLIGATIONS 10 (2006).
19
Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, art. 8, Apr. 18,
1983, U.N. Doc. A/ CONF.117/14, 22; I.L.M. 3066 (1983), available at
http://untreaty.un.org/ilc/texts/instruments/english/conventions/3_3_1983.pdf.

8
Division of Assets

State assets are generally divided into two categories – territorial assets and
national assets. Territorial assets are state property associated with the territory of
a particular continuing or successor state, such as power plants, manufacturing
enterprises, and mineral deposits.

Conversely, national assets are assets the predecessor state’s central


government held at the time of the break up and are not necessarily associated with
a particular geographic area. National assets include, among other things, currency
accounts, central government-owned movable property, gold reserves, and
diplomatic and state property located abroad.20

In dividing assets, successor states often differentiate between territorial and


national assets. For instance, in the former Czechoslovakia, the Constitutional
Law on the Division of Debts and Assets differentiated between national assets and
territorial assets.21 The successor states to the former Yugoslavia similarly
differentiated between national and territorial assets when identifying which assets
each successor state should maintain.22

In the case of both a continuation and a dissolution, the states to the


succession generally follow the “territorial principle” when dividing territorial
assets. The territorial principle provides that the predecessor state’s immoveable
assets pass to the state in which the territorial assets are located upon the
predecessor state’s break up.23

With regards to national assets, in the case of a dissolution, successor states


generally conclude an agreement to allocate national assets among the successor
states. Such agreements may allocate national assets in accordance with the
successor states’ relative populations, territorial sizes, or an alternative

20
See generally Constitutional Law on the Division of Czechoslovakia Property Between the Czech Republic and the
Slovak Republic, Constitutional Act No. 541/1992 (Nov. 13, 1992), reprinted in CENTRAL & EASTERN EUROPEAN
LEGAL MATERIALS RELEASE 19 (July 1993).
21
Constitutional Law on the Division of Czechoslovakia Property Between the Czech Republic and the Slovak
Republic, Constitutional Act No. 541/1992 (Nov. 13, 1992), reprinted in CENTRAL & EASTERN EUROPEAN LEGAL
MATERIALS RELEASE 19 (July 1993).
22
Agreement on Succession Issues Between the Five Successor States of the Former State of Yugoslavia art. 2-3
(Bosnia & Herzegovina-Croatia-Macedonia-Slovenia-Federal Republic of Yugoslavia, 2001), available at
http://untreaty.un.org/English/notpubl/29-1.pdf.
23
Paul Williams and Jennifer Harris, State Succession to Debts and Assets: The Modern Law and Policy, 42
HARVARD INTERNATIONAL LAW JOURNAL 355, 402 (2001).

9
predetermined formula. In dividing national assets in a continuation, continuing
states often, but not always, retain all of the predecessor state’s assets in exchange
for an assumption of all national debts.

Territorial Assets

In the case of both a continuation and a dissolution, state practice indicates


that continuing and/or successor states are generally entitled to the predecessor
state’s immovable assets located on or connected to their territory.24 However, the
1983 Vienna Convention on Succession of States in Respect of State Property
provides that unless the successor states come to an allocation agreement to the
contrary, immovable and movable state property connected to the territory of a
particular successor state shall pass to that successor state.25

Allocation of Territorial Assets in Continuations: In the case of the Soviet


Union’s break up, Russia, as the continuing state, assumed all of the former Soviet
Union’s state assets in exchange for assuming all of the former Soviet Union’s
debts. However, despite these zero-option agreements, the successor Soviet
republics were still entitled to the territorial assets located on or associated with
their territory.26 Even the Baltic states, which did not recognize the legality of their
1940 annexation by the Soviet Union and thus did not view themselves legally as
successor states to the Soviet Union, claimed title to immovable Soviet property
located within their territories.27

Similarly, the Constitutional Charter of the State Union of Serbia and


Montenegro provided that property of the Federal Republic of Yugoslavia

24
See Ian Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 654, 658 (4th ed. 1990); see also Paul Williams
and Jennifer Harris, State Succession to Debts and Assets: The Modern Law and Policy, 42 HARVARD
INTERNATIONAL LAW JOURNAL 355, 364-365 (2001).
25
Vienna Convention on Succession of States in Respect of State Property, Archives, and Debts, art. 14-18, Apr. 18,
1983, U.N. Doc. A/CONF.117/14, 22; I.L.M. 3066 (1983), available at
http://untreaty.un.org/ilc/texts/instruments/english/conventions/3_3_1983.pdf.
26
Paul Williams and Jennifer Harris, State Succession to Debts and Assets: The Modern Law and Policy, 42
HARVARD INTERNATIONAL LAW JOURNAL 355, 407 (2001). As discussed elsewhere in the memorandum, the Treaty
on Debts and Assets that established the allocation of debts and assets among Russia and the successor states of the
Soviet Union did not explicitly provide for the rights of the successor states to retain state assets according to the
territorial principle. However, it did implicitly recognize the concept of territorial assets by excluding them from the
definition of state property to be allocated among the successor states.
27
Paul Williams and Jennifer Harris, State Succession to Debts and Assets: The Modern Law and Policy, 42
HARVARD INTERNATIONAL LAW JOURNAL 355, 378 (2001). See also International Law Association, Berlin
Conference (2004), Aspects of the Law of State Succession, available at http://www.ila-
hq.org/en/committees/index.cfm/cid/11.

10
belonged to the member state in whose territory the property was located.28 Thus,
when Montenegro (the successor state) succeeded from Serbia (the continuing
state), the remaining state-held territorial property was designated as the assets of
the state in which the asset was located.

Allocation of Territorial Assets in Dissolutions: In the case of the


dissolution of Czechoslovakia into the Czech Republic and the Slovak Republic,
the Constitutional Law on the Division of Debts and Assets defined territorial
assets or property as all real estate located within each territory. The agreement
stipulated that the Czech Republic and the Slovak Republic would each acquire
ownership over such real estate located within their territory.29 This division was
subject to the application of a principle of “efficiency” whereby state assets that
traditionally operated singularly (e.g., movable property associated with
immovable property) would pass together to a single successor state, to avoid
destroying the economic value of property by senselessly stripping it of
components necessary for its proper function.30 To this end, property associated
with a state-owned enterprise, no matter where it was located, passed to the state in
which the state-owned enterprise was headquartered.31

In the case of Yugoslavia’s dissolution, territorial assets consisted of all


movable and immovable property within the territory of a successor state, and each
successor state maintained the assets within its territory.32 The agreement made an
exception for property having a particular importance to a successor state’s
“cultural heritage.” Ownership of such property would pass to the successor state
with which the property was associated, regardless of where the culturally
significant property was located. 33

28
Constitutional Charter of the State Union of Serbia and Montenegro, art. 59 (Serbia and Montenegro, 2003),
available at http://www.mfa.gov.yu/Facts/const_scg.pdf.
29
Constitutional Law on the Division of Czechoslovakia Property Between the Czech Republic and the Slovak
Republic, Constitutional Act No. 541/1992 (Nov. 13, 1992), reprinted in CENTRAL & EASTERN EUROPEAN LEGAL
MATERIALS RELEASE 19 (July 1993).
30
See Constitutional Act No. 541/1992 on the Division of Property, art. 3(2) (Czech and Slovak Federal Republic,
1992). See also Paul Williams and Jennifer Harris, State Succession to Debts and Assets: The Modern Law and
Policy, 42 HARVARD INTERNATIONAL LAW JOURNAL 355, 403 (2001).
31
See Constitutional Act No. 541/1992 on the Division of Property, art. 8(1) (Czech and Slovak Federal Republic,
1992).
32
Agreement on Succession Issues Between the Five Successor States of the Former State of Yugoslavia art. 2-3
(Bosnia & Herzegovina-Croatia-Macedonia-Slovenia-Federal Republic of Yugoslavia, 2001), available at
http://untreaty.un.org/English/notpubl/29-1.pdf.
33
See Agreement on Succession Issues Between the Five Successor States of the Former State of Yugoslavia Annex
A, art. 3(2), 4 (Bosnia & Herzegovina-Croatia-Macedonia-Slovenia-Federal Republic of Yugoslavia, 2001),
available at http://untreaty.un.org/English/notpubl/29-1.pdf.

11
National Assets

The division of national assets depends in large part on whether the


succession is deemed a continuation or dissolution, and whether the state laying
claim to the asset is a continuing or successor state. In cases of continuation, the
continuing state often, but not always, maintains all of the predecessor state’s
national assets along with the predecessor state’s national debts under a zero-
option agreement. Alternately, in cases of dissolution, successor states generally
enter into agreements to divide national assets using a proscribed formula linked to
the value of assets, successor states’ populations and/or geographic size, or some
other pre-determined variable.

Allocation of National Assets in Continuations: In the case of a


continuation, the continuing state often retains all of the predecessor state’s
national assets in exchange for maintaining all of the predecessor state’s debts.
State practice illustrates that successor states may enter into a negotiated agreement
with the continuing state to retain some of the predecessor state’s national assets.
There is in fact little general state practice to support the right of a successor state
to claim any of the predecessor state’s national assets that are located outside the
successor state’s territory. 34

Following the Soviet Union’s break up, Russia – the continuing state –
entered into a series of zero-option agreements with the former soviet republics.
These agreements afforded Russia ownership of all the Soviet Union’s national
assets in exchange for assuming the Soviet Union’s debts. 35

Conversely, in the case of Serbia and Montenegro, Serbia (the continuing


state) and Montenegro (the successor state) concluded a bilateral agreement to
regulate the allocation of assets and debts.36 The agreement stipulated that
Montenegro would receive 5.88 percent of the predecessor state’s total national
property and debt obligations, and Serbia would retain 92.12 percent.37

34
Paul Williams and Jennifer Harris, State Succession to Debts and Assets: The Modern Law and Policy, 42
HARVARD INTERNATIONAL LAW JOURNAL 355, 365 (2001).
35
Tai Heng-Cheng, STATE SUCCESSION AND COMMERCIAL OBLIGATIONS 351-355 (2006).
36
Commission of the European Communities, Proposal for a Council Decision (Apr. 29, 2008), available at
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0228:FIN:EN:PDF.
37
Vitalino Canas, Independent Montenegro: Early Assessment and Prospects for Euro-Atlantic Integration, NATO
PARLIAMENTARY A SSEMBLY (2007), available at http://www.nato-pa.int/Default.asp?SHORTCUT=1162.

12
Allocation of National Assets in Dissolutions: Successor states in a
dissolution may divide national assets based on a variety of different criteria
including population, geographic size, or other economic factors or pre-determined
formula.

In the case of Czechoslovakia’s dissolution, national property was divided


according to the successor states’ respective populations. The Constitutional Law
on the Division of Debts and Assets defined national property as property to which
the territorial principal could not be applied. The law articulated that the successor
states, the Czech and Slovak Republics, would allocate national property and assets
on a two-to-one basis, proportional to the successor states’ populations and similar
to the formula the successor states used to allocate national debt.38

In the case of Yugoslavia – considered a dissolution – the predecessor state’s


national assets were defined to include such items as gold and other reserves and
shares held at the Bank for International Settlements.39 The successor states agreed
to divide these assets among them according to proportions established through the
application of the International Monetary Fund (IMF) “Key Principles,” which
took into account the economic strength of the five newly independent states, as
well as their former financial contributions to Yugoslavia. 40

Allocation of Military Property

Military property and assets can be classified as either territorial assets


(immovable property located in a specific territory) or national assets (movable
property not identified with a specific territory). In addition, due to their obvious
significance to both continuing and successor states, military assets may be subject
to different standards and negotiated separately from the allocation of other state
assets. For example, in the case of Singapore’s succession from Malaysia –
38
Constitutional Law on the Division of Czechoslovakia Property Between the Czech Republic and the Slovak
Republic, Constitutional Act No. 541/1992 (Nov. 13, 1992), reprinted in CENTRAL & EASTERN EUROPEAN LEGAL
MATERIALS RELEASE 19 (July 1993).
39
Bank for International Settlements, “About BIS”, available at http://www.bis.org/about/index.htm. The Bank for
International Settlements (BIS), based in Switzerland, is the oldest international financial organization, established
in 1970 with the purpose of promoting international monetary and financial cooperation. It serves as a bank for
central banks.
40
Carsten Stahn, The Agreement on Succession Issues of the Former Socialist Republic of Yugoslavia, 96 THE
AMERICAN SOCIETY OF INTERNATIONAL LAW 379, 380-381 (2002). The goal of the principles was to provide a
framework for an equitable distribution of debts and assets following the dissolution of Yugoslavia. Therefore, the
principles took into account the economic strength of the five newly independent states, as well as their former
financial contribution to Yugoslavia. The IMF effort is still considered one of the most comprehensive attempts to
apply an “equitable” standard to the division of debts and assets among successor states.

13
considered a continuation – the parties had to determine how to allocate use of
several Malaysian military bases located in Singapore. A separation agreement
provided that Singapore would permit Malaysia to utilize the bases for the purpose
of external defense. Singapore, however, obtained ownership of the bases.41

Following the split of Serbia and Montenegro – where Serbia represented the
continuing state – Serbia and Montenegro agreed to divide military assets
according to the asset’s territorial location. Those military assets located in Serbia
at the time of the split would pass to Serbia, and those located in Montenegro
would, likewise, pass to Montenegro. 42 This territorial asset division resulted in
Serbia receiving the vast amount of military assets.43

Allocation of Diplomatic Properties Abroad

Successor and continuing states may apply the same negotiated principles
used to divide national assets to the division of diplomatic properties abroad. This
is in accordance with the definition of “national assets,” which generally includes
diplomatic and state property located abroad.44 However, successor states
sometimes additionally agree to specific allocations of certain diplomatic
properties, particularly those properties located in states deemed necessary or
important to the successor states’ foreign relations.

For instance, in Yugoslavia’s dissolution, the successor states reached


distinct agreements on the division and ownership of important diplomatic
properties abroad, particularly those properties located in London, Paris, and
Washington, DC. To apportion the remaining diplomatic properties, the successor
states employed the modified IMF “Key Principles” that were used to divide
Yugoslavia’s national assets.45

41
Agreement Relating to the Separation of Singapore from Malaysia as an Independent and Sovereign State, art.
5(3) (Singapore-Malaysia), Aug. 7, 1965, 563 U.N.T.S. 90 (1965).
42
Vitalino Canas, Independent Montenegro: Early Assessment and Prospects for Euro-Atlantic Integration, NATO
PARLIAMENTARY A SSEMBLY (2007), available at http://www.nato-pa.int/Default.asp?SHORTCUT=1162.
43
Vitalino Canas, Independent Montenegro: Early Assessment and Prospects for Euro-Atlantic Integration, NATO
PARLIAMENTARY A SSEMBLY (2007), available at http://www.nato-pa.int/Default.asp?SHORTCUT=1162.
44
Paul Williams and Jennifer Harris, State Succession to Debts and Assets: The Modern Law and Policy, 42
HARVARD INTERNATIONAL LAW JOURNAL 355, 361 (2001).
45
See Agreement on Succession Issues Between the Five Successor States of the Former State of Yugoslavia art. 1-3
(Bosnia & Herzegovina-Croatia-Macedonia-Slovenia-Federal Republic of Yugoslavia, 2001), available at
http://untreaty.un.org/English/notpubl/29-1.pdf.

14
Similarly, the Czech and Slovak Republics agreed to jointly share diplomatic
properties in Japan, the United States, Sweden, and Italy. The successor states
allocated the remaining Czechoslovakian diplomatic properties situated abroad
under the same two-to-one ratio used to allocate other national debts and assets.46
In the case of the Soviet Union’s break up, pursuant to the zero-option agreements,
Russia, as the continuing state, assumed ownership of all of the Soviet Union’s
diplomatic properties abroad.

International Opinion

The allocation of assets is often linked with the allocation of debts following
state succession. International creditors, however, are usually more concerned
with the allocation of debts in order to ensure successor states meet the predecessor
state’s debt obligations. As such, creditors, as well as third-party states holding
predecessor state’s national assets, are generally not concerned with equitable asset
allocation.

Creditors and third-party states are also generally not obligated to protect a
successor state’s claims to a predecessor state’s property unless the creditors or
third-party states recognize the successor state’s sovereignty.47 The lack of an
obligation to preserve a predecessor state’s assets for the new successor states’
future use has allowed third parties to refuse to preserve national assets in their
control.

For example, immediately following Yugoslavia’s dissolution, Serbia and


Montenegro was able to seize the majority of the predecessor state’s national assets
before the other successor states could reach an asset allocation agreement. Third-
party states in which Yugoslavia’s national assets existed were unwilling to freeze
or preserve the predecessor state’s assets until the successor states could reach an
agreement. Consequently, Serbia and Montenegro was able to appropriate the vast
majority of Yugoslavia’s national assets, leaving the remaining four predecessor
states with significantly less than they would have received had the third-party
states taken measure to preserve the assets.48

46
See Czechs, Slovaks Divide Czechoslovakia Embassy Properties, FBIS-EEU-93-030, 4 (Feb. 17, 1993).
47
Paul Williams and Jennifer Harris, State Succession to Debts and Assets: The Modern Law and Policy, 42
HARVARD INTERNATIONAL LAW JOURNAL 355, 365 (2001).
48
Paul Williams and Jennifer Harris, State Succession to Debts and Assets: The Modern Law and Policy, 42
HARVARD INTERNATIONAL LAW JOURNAL 355, 399-400 (2001).

15
Allocating State Debts

Debt is the amount of money a state owes to another state, an international


organization, or any other institution.49 States often borrow money from other
states, international organizations, or other institutions through agreements in
which the state receives an amount of money in exchange for a promise to repay.

States sometimes borrow money to build infrastructure such as roads or


dams, or facilities such as power plants or government buildings. A state may also
incur debt when it purchases assets. For instance, a state may purchase machinery
from another state, with the obligation to pay the cost of the machinery at a later
time. A state may also borrow money to manage economic issues such as
adjusting a balance of payment problem or a foreign exchange deficit.

Division of Debts

The Vienna Convention on Succession of States provides that, unless the


successor states otherwise agree, “the State debt of the predecessor State shall pass
to the successor states in equitable proportions, taking into account, in particular,
the property, rights and interests which pass to the successor states in relation to
that state debt.”50

Successor states generally divide debt into two categories – territorial debt
and national debt. Territorial debt (also called “localized” debt) is debt that a state
or territory incurs when it borrows capital from another entity to fund a project
connected to a particular part of its territory.51 Territorial debts, for example, are
monies that a state borrows to fund the building of dams to prevent flooding in a
portion of its territory, which, perhaps, is now part of the successor state’s territory.
It can also be the debt incurred through the establishment of an educational

49
Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, opened for
signature April 18, 1983, art. 33 (1983).
50
The Vienna Convention is not in force, however it can serve as one basis on which to examine the division of
debts and assets following state succession. Vienna Convention on Succession of States in Respect of State
Property, Archives and Debts, opened for signature April 18, 1983, art. 41 (1983).
51
A subcategory of territorial debt is “local” debt. Local debts are those debts that are contracted by the local
government of the successor state prior to succession. Local debts are generally not affected by succession – in
either a continuation or dissolution – because they are obligations of the governments of the respective territories
that become independent states. Thus, local debts will not be directly addressed by this memorandum but is
encompassed in the discussion of the broader issue of territorial debit. Paul Williams and Jennifer Harris, State
Succession to Debts and Assets: The Modern Law and Policy, 42 HARVARD INTERNATIONAL LAW JOURNAL 355
(2001).

16
program or the development of infrastructure in a specific region.52

Conversely, national debt is debt that a government contracts for when it


borrows money to benefit the entire former state, rather than an identifiable region
or specific portion of the former state’s territory.53 For instance, a state incurs
national debt when borrowing money to adjust its foreign exchange deficit, to
correct a balance of payment problems, or to finance the correction of other
national economic problems.54

In both a continuation and dissolution, successor states often assume liability


for some territorial debt, in particular debt clearly identifiable with a continuing or
successor state’s territory. Additionally, successor states sometimes continue to be
obligated by a specific share of the predecessor state’s national debt.55

State practice indicates that creditors often have some involvement in


approving both territorial and national debt allocations in a succession. Creditors
will sometimes allocate debts according to the economic power of each successor
state, rather than equitably distributing debts among the successor states.
Allocating debt in accordance with economic power allows creditors to protect
their interests in ensuring timely repayment.56

Territorial Debts

States involved in succession often divide territorial debt in a different


proportion than national debt. A successor state generally keeps all the territorial
debt that funded projects in its territory, as well as debts from which the successor
state’s territory benefited. This is termed the “final beneficiary rule” and has often
been applied in cases of both continuation and dissolution.57

Allocation of Territorial Debt in Continuations: In 2006, prior to the


referendum on Montenegrin independence, Serbia and Montenegro signed an

52
Malcolm N. Shaw, INTERNATIONAL LAW 617-618 (1991).
53
Malcolm N. Shaw, INTERNATIONAL LAW 617-618 (1991).
54
Malcolm N. Shaw, INTERNATIONAL LAW 617-618 (1991).
55
Arthur Berriedale Keith, Theory of State Succession 60 (1907).
56
Paul Williams and Jennifer Harris, State Succession to Debts and Assets: The Modern Law and Policy, 42
HARVARD INTERNATIONAL LAW JOURNAL 355, 363 (2001).
57
State practice illustrates an almost universal adherence to the apportionment of territorial debts according to the
“final beneficiary rule.” Both successor states and international financial institutions, such as the International
Monetary Fund (IMF), have consistently applied the “final beneficiary rule” to allocate debts in successions during
the 1990s and early twentieth century.

17
agreement related to the allocation of debts and assets. For the division of
territorial debts, the agreement adhered to the “final beneficiary rule,” providing
that liability for debts associated with a project located within the territory of a
continuing/successor state, or benefiting the territory of a continuing/successor
state would fall entirely to that continuing/successor state and would not be subject
to the ratios established for national debts (discussed below).58 Therefore, Serbia,
the continuing state, retained all territorial debt associated with its territory, and
Montenegro, the successor state, retained all territorial debt associated with its
territory. The successor state of Bangladesh, when it gained independence from
Pakistan (the continuing state), accepted only the debt obligations of the World
Bank loans directly relating to projects located on Bangladesh’s territory.59

Allocation of Territorial Debt in Dissolutions: In Czechoslovakia, the


Federal Assembly of Czechoslovakia passed a constitutional law, which
established that the Federal Republic no longer existed and that the Czech Republic
and Slovak Republic would be its successor states. Thus, the succession was a
dissolution.60 Accordingly, the successor states reached an agreement to keep their
own territorial debts, limited to debts that funded projects identifiable with the
successor states’ territories.61

Successor states sometimes apply a broader definition of territorial debts. In


Yugoslavia, creditors determined that territorial debt included debts related to
projects funded in the successor states’ territory, even if a bank in the territory of a
different successor state processed the loan.62

National Debt

National debt is debt of the predecessor state that is not identifiable with a

58
Council of the European Union, Decision 2008/784/EC, (2008) available at http://eur-lex.europa.eu/
LexUriServ/LexUriServ.do?uri=OJ:L:2008:269:0008:0010:EN:PDF.
59
Bangladesh did not accept any other World Bank debts, including those that may have indirectly benefited its
territory when it was still a part of Pakistan. Ibrahim Shihata, Matters of State Succession in the World Bank’s
Practice, in SUCCESSION OF STATES 75, 89, 92 (Mojmir Mrak ed., 1999).
60
Malcolm N. Shaw, State Succession Revisited, 5 FINNISH Y EARBOOK OF INTERNATIONAL LAW 34, 59 (1994).
61
CONSTITUTIONAL LAW ON THE DIVISION OF CZECHOSLOVAKIA PROPERTY BETWEEN THE CZECH REPUBLIC AND
THE S LOVAK REPUBLIC (Czechoslovakia, 1992).
62
German Delegation to the Paris Club, Treatment of the Debt of the Former Socialist Federal Republic of
Yugoslavia 2 (July 13, 1992); see also Laura Silber and Gavin Grey, Survey of the Republic of Slovenia, FINANCIAL
TIMES, 35, (April 6, 1995); see also Paul Williams and Jennifer Harris, State Succession to Debts and Assets: The
Modern Law and Policy, 42 HARVARD INTERNATIONAL LAW JOURNAL 355, 410-411 (2001); Carsten Stahn, The
Agreement on Succession Issues of the Former Socialist Republic of Yugoslavia, 96 THE A MERICAN SOCIETY OF
INTERNATIONAL LAW 379, 392-393 (2002).

18
specific territory. In cases of a continuation, the continuing state often retains all
national debts in exchange for all national assets, and this may include debts that
indirectly benefited the successor state. This is often referred to as a “zero-option
agreement.” Alternately, following a dissolution, successor states are generally
responsible for a portion of the predecessor state’s national debt. In some instances
of a dissolution, successor states continue to be obligated by national debts in
proportion to the size of their territory, while in other instances of dissolution the
successor states continue to be obligated by national debts in proportion to the
amount of the predecessor state’s population the successor retains or the economic
viability of the successor states.

Allocation of National Debt in Continuations: In a continuation, a


continuing state may continue to be obligated by all of the predecessor state’s debts
in exchange for all of its assets, or may come to an agreement with the successor
state(s) to otherwise equitably assign debts between the continuing and successor
states.

Russia – as the continuing state of the former Soviet Union – entered a series
of zero-option agreements, under which Russia, the continuing state, assumed
liability for all the former Soviet Union’s national debt in exchange for assuming
all national assets.63 In the case of Serbia and Montenegro, the division of national
debts was also determined by an agreement between the parties. Following the
split of Serbia and Montenegro, the International Monetary Fund (IMF) determined
the succession was a continuation, leaving Serbia as the continuing state and
Montenegro as the successor state. The IMF suggested that, as the continuing
state, Serbia keep all IMF debts, as well as all IMF assets.64 However, Serbia and
Montenegro subsequently entered a bilateral agreement to allocate debt in a
manner different than proposed by the IMF. The agreement, which was eventually
accepted by the IMF, established that Serbia would keep 90 percent of IMF debts,
while Montenegro would keep the remaining 10 percent.65

63
John Lloyd, Russian Republic ‘Must Take Over Responsibility for the Soviet Debt’ 4 FINANCIAL TIMES (Nov. 4,
1991); James Rupert, Yeltsin to Control Most Nuclear Arms; 11 Former Soviet Republics Declare Formation of
Commonwealth, WASHINGTON POST, A1 (Dec. 22, 1991). Creditors of the Soviet Union put forward the
requirement that Russia and the Soviet republics (successor states) would be required to accept joint and several
liability for the debts of the former Soviet Union. The reticence of the Soviet republics to accept such wide reaching
liability, along with pressure from Russia, were factors that resulted in these zero-option agreements.
64
Statement on the Membership of the Republics of Montenegro and Serbia in the IMF, IMF PRESS RELEASE, (July
2006), available at http://imf.org/external/np/sec/pr/2006/pr06161.htm.
65
Commission of the European Communities, Proposal for a Council Decision (April 2008), available at http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0228:FIN:EN:PDF.

19
In the cases of Pakistan-Bangladesh and Ethiopia-Eritrea, both of which
were continuations, the successor states of Bangladesh and Eritrea did not accept
any of the national debt of the predecessor states, despite efforts of the
international community to assign them some of these debts. In the case of
Bangladesh, Bangladesh refused to accept responsibility for any of Pakistan’s
World Bank debts, even those debts that had indirectly benefited the territory of
Bangladesh prior to succession.66 Although the World Bank attempted to mandate
equitable distribution of these debts, faced with Bangladesh’s refusal, the Bank
eventually assigned full liability for the debts to Pakistan.67

Similarly, in the case of Eritrea and Ethiopia’s break up – where Ethiopia


represented the continuing state – Eritrea refused to accept debt obligations
connected to any of Ethiopia’s external national debt. The international
community eventually accepted Eritrea’s refusal. The international community’s
respective acceptances of Bangladesh and Eritrea’s refusals to accept continuing
state’s national debts may provide some limited support for the argument that a
territory seceding after what is considered an “occupation,” or where the
independence movement resulted in violent unrest, is not required to accept
liability for debts of the predecessor state.68 However, it is important to note that
this argument is still the subject of controversy in the international community, and
not widely accepted among creditors.

Allocation of National Debt in Dissolutions: In Yugoslavia, the


International Monetary Fund (IMF) determined that the succession was a
dissolution and not a continuation (i.e. Yugoslavia had dissolved, leaving no
continuing state).69 The IMF, a creditor of the predecessor state, established “Key
Principles” to determine the distribution of IMF debts and assets among
Yugoslavia’s successor states. The goal of these principles was to provide a

66
Ibrahim Shihata, Matters of State Succession in the World Bank’s Practice, in SUCCESSION OF STATES 75, 92
(Mojmir Mrak ed., 1999).
67
Paul R. Williams, State Succession and the International Financial Institutions: Political Criteria v. Protection of
Outstanding Financial Obligations, 43 INTERNATIONAL COMPARATIVE LAW QUARTERLY 776, 791-92 (1994).
68
See Jeff A. King, Odious Debt: The Terms of the Debate, 32 NORTH CAROLINA JOURNAL OF INTERNATIONAL
LAW AND COMMERCIAL REGULATION 605, 651-52 (2007). King’s theory is that although the “final beneficiary rule”
assigns state debts to the successor state that benefited from the funds borrowed, a “presumption” exists that
“foreign occupation can bring no benefits unless benefits are specifically proved” and that, as a result, states
emerging from occupation are presumed not to have benefited from any debts incurred. The concept of “odious
debts” and the acceptance of this specialized category is still the subject of much debate within the international
community and among creditors. There are not any settled international standards or customary law with respect to
this issue, and it remains controversial within the international community and is not widely accepted by creditors.
69
Carsten Stahn, The Agreement on Succession Issues of the Former Socialist Republic of Yugoslavia, 96 THE
AMERICAN SOCIETY OF INTERNATIONAL LAW 379, 382 (2002).

20
framework for an equitable distribution of debts and assets following the
dissolution of Yugoslavia. Therefore, the principles took into account the
economic strength of the five newly independent states, as well as their former
financial contribution to Yugoslavia.70 This is an example of how the predecessor
state’s creditor, as an interested party, may play an active role in the final division
of debt obligations.

Successor states in dissolutions may also divide national debts in proportion


to the size of their populations. For example, under the agreement between the
Czech Republic and Slovak Republic, each successor state kept a proportion of the
national debt according to the percentage of the former Czechoslovakia’s
population each successor state retained.71 Czechoslovakia’s creditors accepted
this agreement.

Repayment Conditions

When determining the division of debts, a consideration may be the


repayment conditions of debts. Debts often carry borrowing and repayment
conditions, which the debtor state must fulfill. The state or institution that loans
the funds determines the conditions of repayment. However, to assist debt
repayment, institutions and states may renegotiate repayment conditions, amounts,
and due dates.

The International Monetary Fund: The International Monetary Fund (IMF)


is an organization of 185 countries which focuses on global monetary cooperation
and financial security and provides policy advice and financing to member
countries experiencing economic difficulties and in need of development,
macroeconomic stability, and poverty reduction.72 The IMF imposes monetary and
fiscal policy requirements on states that have IMF debt.73 The conditionality
imposed on IMF assistance takes into account issues including a state’s political
dynamics, social objectives, causes for any balance of payment difficulties, history
of repayment, and past implementation of sound economic policies, among
70
Carsten Stahn, The Agreement on Succession Issues of the Former Socialist Republic of Yugoslavia, 96 THE
AMERICAN SOCIETY OF INTERNATIONAL LAW 379, 380-381 (2002). The IMF effort is still considered one of the
most comprehensive attempts to apply an “equitable” standard to the division of debts and assets among successor
states.
71
CONSTITUTIONAL LAW ON THE DIVISION OF CZECHOSLOVAKIA PROPERTY BETWEEN THE CZECH REPUBLIC AND
THE S LOVAK REPUBLIC, art. 4, 5 (Czechoslovakia, 1992).
72
See International Monetary Fund, “About the IFM”, available at http://www.imf.org/external/about.htm.
73
Sudan: Country Report, Economic Intelligence Unit, 2 (Jan. 2004), available at
http://jam.unsudan.info/clusters/economic/background-docs/EIU-SudanCountryReportJan2004.pdf.

21
others.74 The monetary and fiscal policies imposed may require, among other
actions, a specific gross domestic product rate, targeted inflation rates and fiscal
balances, demonstrated efforts to strengthen international reserves, currency
stability, and structural adjustments.75

While these factors are criteria for initial IMF assistance and continuation
thereof based on the Fund’s phased disbursement policy, actions to meet the
conditionality requirements can also affect consideration of the repayment
schedule. For example, in structuring repayment of debt obligations, the IMF may
allow a deferment or reduction of arrears, which are overdue debt payments. The
IMF recently delayed or suspended remedial actions for Afghanistan, the
Democratic Republic of the Congo, Iraq, and Somalia’s failure to pay arrears
because of civil conflicts, poor governance, or international sanctions against those
states.76 However, following the dissolution of Yugoslavia, one of the proposals
considered by the IMF conditioned successor states’ continued IMF membership
on the ability and willingness of the successor states to pay the arrears of
Yugoslavia, the predecessor state.77

The World Bank and IMF Heavily Indebted Poor Country (HIPC) Initiative
also allows for additional support for certain countries, in cases in which standard
debt reduction and rescheduling may not be sufficient to enable debt repayment.78
There are certain conditions for a state to be classified as a HIPC, and conditions
that a state must then maintain to be eligible for the full range of debt reduction
options under the HIPC Initiative,79 which should be considered in the context of
succession and debt repayment.

74
International Monetary Fund Guidelines to Conditionality (Sept 2002), available at
http://www.imf.org/External/np/pdr/cond/2002/eng/guid/092302.pdf.
75
International Monetary Fund, Conditionality Fact Sheet (May 2008), available at
http://www.imf.org/external/np/exr/facts/conditio.htm.
76
International Monetary Fund, INTERNATIONAL MONETARY FUND 69 (2002).
77
Paul R. Williams, State Succession and the International Financial Institutions: Political Criteria v. Protection of
Outstanding Financial Obligations, 43 INTERNATIONAL COMPARATIVE LAW QUARTERLY 776, 797, 805 (1994).
78
Depending on the debt allocation between the Republic of Sudan and Southern Sudan, should Southern Sudan
secede, it is possible that Southern Sudan would also be a candidate for status as a HIPC.
79
International Monetary Fund, Factsheet on Debt Relief Under the Heavily Indebted Poor Countries Initiative,
available at http://www.imf.org/external/np/exr/facts/hipc.htm. The Republic of Sudan is currently considered at
the “pre-decision point” for eligibility under the HIPC Initiative. This means that Sudan is in the process of
fulfilling the initial requirements to be considered for the HIPC status, but has not yet completed these requirements
or received a determination from the Executive Boards of the IMF and International Development Association
(IDA) as to its acceptance as a HIPC.

22
The Paris Club: The Paris Club is an informal group of creditors who
coordinate among themselves to formulate solutions to difficulties faced by states
with outstanding debts.80 The Paris Club has a number of different classes of debt
assistance that it may offer to states. The Paris Club makes only limited
concessions for states under what it terms “the Classic Terms” treatment. Under
Classic Terms, a state may receive a rescheduling of both development-oriented
debts, as well as non development-oriented debts, at an appropriate market rate.81

The Paris Club makes most concessions for states under the “Cologne
Terms” treatment. If the World Bank and IMF categorize a debtor state as a
Heavily Indebted Poor Country (HIPC), a standard that the Paris Club applies, the
state may be eligible for debt restructuring under the Cologne Terms. Cologne
Terms allow cancellation of up to 90% of non development-oriented debts, and
interest rates at least as favorable as original concessional rates of development-
oriented debts.82 Further, the Cologne Terms allow individual states to adopt
bilateral debt swaps.83 For example, the successor states of Croatia and Macedonia
each rescheduled their debts individually with Paris Club creditors. The Croatia
and Macedonia debt rescheduling accounted for war and loss of market factors,
which can be used to reduce or reschedule debts based on issues related to armed
conflict.84

Bilateral debt obligations: Bilateral and commercial bank debt obligations


also carry individual conditions and repayment obligations. Some bilateral debts
require interest rate payments, while other obligations contain a grace period of a

80
The Paris Club, About Us, available at http://www.clubdeparis.org/sections/qui-sommes-nous. The Paris Club,
Sudan, available at http://www.clubdeparis.org/sections/pays/soudan/viewLanguage/en. The Paris Club is not an
institution, but a group of creditors who operate on the basis of consensus to coordinate agreements for states
experiencing difficulties with debt repayment, especially in the process of a state’s efforts to reform and stabilize
their macroeconomic and financial situations. Paris Club creditors provide debt treatment through rescheduling of
repayment options, or possible reduction in obligations, during a specific period or as of a specific date. The
Republic of Sudan signed agreements with the Paris Club for debt treatment in 1979, 1982, 1983 and 1984, all of
which have been paid in full.
81
Classic Terms, Paris Club Terms of Treatment available at http://www.clubdeparis.org/sections/termes-de-
traitement/termes-de-traitements/59-les-termes-classiques/switchLanguage/en. International Monetary Fund,
Factsheet on Debt Relief Under the Heavily Indebted Poor Countries Initiative, available at
http://www.imf.org/external/np/exr/facts/hipc.htm. Sudan has benefited from rescheduling under Classic Terms for
each of its four Paris Club agreements.
82
Cologne Terms, 3.2 Paris Club Terms of Treatment available at http://www.clubdeparis.org/sections/termes-de-
traitement/termes-de-traitements/62-les-termes-de-cologne/switchLanguage/en.
83
Cologne Terms, 3.2 Paris Club Terms of Treatment available at http://www.clubdeparis.org/sections/termes-de-
traitement/termes-de-traitements/62-les-termes-de-cologne/switchLanguage/en.
84
Ana Stanic, Financial Aspects of State Succession: The Case of Yugoslavia, 12 EUROPEAN JOURNAL OF
INTERNATTIONAL LAW 751, 761 (2001).

23
specific number of years and assess a service charge. These conditions must be
individually considered when decisions are made on debt allocations in the context
of succession.

Approaches to Negotiating Debts

When allocating debt, the parties to a succession often negotiate an


agreement to determine the allocation of the predecessor state’s debts. However, if
states do not reach an agreement, creditors will usually determine the amount of
debt each continuing and/or successor state is responsible for, in an effort to ensure
repayment of debts. Even with a debt agreement between the parties to succession,
state practice illustrates that creditors and the international community typically
play a significant role in the terms of this agreement and the final allocation of
debt.

Negotiated Agreements

Successor states may negotiate with each other to determine the allocation of
debt obligations. As addressed in further detail below, creditors can significantly
influence such agreements, and have the ability to object to terms of an agreement
if it will prejudice their rights.85

Following the succession of the Czech and Slovak Republics from


Czechoslovakia (deemed a dissolution), the Czech and Slovak Republics came to
an agreement concerning which debts each successor state would continue to be
obligated by, without the direction of creditors.86 Although the IMF and World
Bank initially argued that each successor state should continue their territorial debt
obligations along the same 2:1 proportion that was provided for the national debt,
Slovakia claimed the proposed division would enable the Czech Republic to
receive more funding than Slovakia from international institutions in the future. 87
The successor states eventually decided that IMF debts would be divided based on
IMF “Key Principles,” allocating 69.1% to the Czech Republic and 30.9% to the

85
Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, opened for
signature April 18, 1983, art. 33 (1983); see also Daniel P. O’Connel, State Succession in Municipal Law and
International Law, Internal Relations 207 (1956).
86
Jiri Pehe, Czechs and Slovaks Define Postdivorce Relations, RADIO FREE EUROPE/RADIO LIBERTY, 7, 10 (Nov. 13,
1992); see also Jiri Pehe, Czechoslovak Parliament Votes to Dissolve Federation, RADIO FREE EUROPE/RADIO
LIBERTY, 2 (Nov 30, 1992), available at www.pehe.cz/clanky/1992/1992-4December1992-RFERL48.pdf?p=2.
87
Vincent Boland, Czechs and Slovaks seek last-minute deal over external debt, FINANCIAL TIMES, 16 (Dec. 31,
1992).

24
Slovak Republic.88 In this case the parties’ agreement, in part because it met the
requirements of the creditors, governed the division of debts and assets.

In Serbia and Montenegro, the parties negotiated the agreement on the


allocation of debts prior to the referendum on Montenegro’s independence. In July
2006, Serbia and Montenegro signed an agreement that provided for the division of
certain state liabilities of the predecessor state, should independence be chosen.
For national debts not identifiable with a specific territory, the two states agreed to
apportion state liabilities according to the same ratio as state property, with 94.12
percent for Serbia and 5.88 percent for Montenegro.89 The two states agreed to
service certain debt obligations, including those from the European Community
and the IMF, according to a ratio of 90 percent for Serbia and 10 percent for
Montenegro.90 The creditors approved this arrangement.

Creditors’ Determination

When successor states have failed to reach an agreement on the division of


debts between them, creditors have intervened and determined, according to their
own terms, the proportion of debt the successor states would maintain.

Under the principles set forth in the 1983 Vienna Convention on Succession
of States in Respect of State Property, creditor states do not have the right to dictate
the determination of an equitable allocation of debts among successor states, but
creditors can object to allocations that may prejudice their rights.91 However, a
review of state practice illustrates that creditors have in fact typically dictated –
directly or indirectly – the allocation of debts to successor states through various
88
Constitutional Law on the Division of Czechoslovakia Property between the Czech Republic and the Slovak
Republic, art. 4 (Czech. 1992); Vincent Boland, Czechs and Slovaks seek last-minute deal over external debt,
FINANCIAL TIMES, 16 (Dec. 31, 1992).
89
See Catherine Elton, A One-Man Embassy Adjusts to a Smaller Portfolio, NEW YORK TIMES, Aug. 5, 2006,
available at http://www.nytimes.com/2006/08/05/world/europe/05kalud.html; Paraschiva Badescu, Montenegro’s
Euro-Atlantic Integration Perspectives, Speech to George C. Marshal Conference, 2 (Nov. 1, 2006) available at
http://www.osce.org/item/22080.html; Ministry of Finance of Montenegro, Agreement between the Government of
Montenegro and the Government of United States within the Paris Creditors’ Club” Feb. 26, 2008, available at
http://www.gov.me/ print.php?id=155402. The 94.12/5.88 percent division appears to be very close to published
information regarding the ratio of the two states’ populations, GDP/PPP, and exports. However, the author was
unable to confirm the reasons for these divisions. See CIA World Factbook 2006, entries for “Montenegro” and
“Serbia,” available at http://www.gutenberg.org/files/27509/27509.txt.
90
Council of the European Union, Decision 2008/784/EC, (2008) available at http://eur-lex.europa.eu/
LexUriServ/LexUriServ.do?uri=OJ:L:2008:269:0008:0010:EN:PDF.
91
Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, opened for
signature April 18, 1983, art. 33 (1983), see also Paul Williams and Jennifer Harris, State Succession to Debts and
Assets: The Modern Law and Policy, 42 HARVARD INTERNATIONAL LAW JOURNAL 355 (2001).

25
mechanisms, including indirectly conditioning successor states’ continued
participation in the international financial markets on the states’ acceptance of
creditors’ terms for debt allocation.92

In the former Yugoslavia, the successor states did not reach an agreement
concerning the allocation of debts.93 Therefore, creditors sought an allocation of
debts to ensure compliance with repayment obligations.94 Creditors compelled
successor states to share the former Yugoslavia’s debt on the creditors’ terms in
exchange for the successor states’ abilities to participate in the international
financial community.95 Each successor state entered bilateral agreements with the
IMF, the Paris Club, and commercial banks to continue the same obligations with
respect to its portion of debt, according to the IMF “Key Principles” for national
debt and the “final beneficiary rule” formula for territorial debt.96 Slovenia was the
first successor state of Yugoslavia to negotiate an agreement with the Paris Club.
This agreement stipulated that Slovenia could renegotiate the terms of the
agreement if the Club’s creditors subsequently granted more favorable conditions
to the other successor states of Yugoslavia.97

Creditors to the Soviet Union also strove to dictate the terms of repayment
during the break up of that state. During initial discussions in 1991 on the division
of the Soviet Union’s debts, creditors demanded that all of the Soviet republics –
the successor states – accept joint and several liability for the Soviet Union’s
debts.98 This demand was not integrated into the final agreement on debt
allocation. However, the Soviet republics’ reticence to accept this requirement was

92
Paul Williams and Jennifer Harris, State Succession to Debts and Assets: The Modern Law and Policy, 42
HARVARD INTERNATIONAL LAW JOURNAL 355 (2001).
93
Paul Williams and Jennifer Harris, State Succession to Debts and Assets: The Modern Law and Policy, 42
HARVARD INTERNATIONAL LAW JOURNAL 355, 388 (2001).
94
Paul Williams and Jennifer Harris, State Succession to Debts and Assets: The Modern Law and Policy, 42
HARVARD INTERNATIONAL LAW JOURNAL 355, 388-389 (2001).
95
Henry H. Perritt, Resolving Claims When Countries Disintegrate: The Challenge of Kosovo,80 CHICAGO-K ENT
LAW REVIEW 199, 141 (2005); Paul Williams and Jennifer Harris, State Succession to Debts an Assets: The Modern
Law and Policy, 42 HARVARD INTERNATIONAL LAW JOURNAL 355, 389 (2001).
96
Henry H. Perritt, Resolving Claims When Countries Disintegrate: The Challenge of Kosovo,80 CHICAGO-K ENT
LAW REVIEW 199, 142 (2005); Ana Stanic, Financial Aspects of State Succession: The Case of Yugoslavia, 12
EUROPEAN JOURNAL OF INTERNATIONAL LAW 751, 760 (2001).
97
Ana Stanic, Financial Aspects of State Succession: The Case of Yugoslavia, 12 EUROPEAN JOURNAL OF
INTERNATIONAL LAW 751, 760 (2001). Stanic cites Cvikl and Mrak, World Bank Internal Document – Former
Yugoslavia’s Debt Apportionment, 13 (June 1996).
98
This means that the successor states, the Soviet republics, would be wholly responsible for all external debts of the
former Soviet Union without distinguishing between national and territorial debts. Paul Williams and Jennifer
Harris, State Succession to Debts and Assets: The Modern Law and Policy, 42 HARVARD INTERNATIONAL LAW
JOURNAL 355, 388-389 (2001).

26
one factor in their acceptance of zero-option agreements that allowed Russia to
retain all of the Soviet Union’s assets in exchange for accepting all of the
predecessor state’s debt obligations.

27
OBTAINING MEMBERSHIP INTO INTERNATIONAL ORGANIZATIONS

Following a vote for independence in 2011, Southern Sudan may wish to


focus on applying for membership in two types of international organizations:
global and regional organizations (i.e. the United Nations, the African Union, the
Intergovernmental Authority for Development, and the Nile Basin Initiative), and
financial or trade organizations (i.e. the International Monetary Fund and the
World Bank). State practice demonstrates that the modern law and policy of
succession to membership will be determined by: (1) the procedures and the
constitutional provisions of the particular organization; (2) the characterization of
the breakup as a dissolution or a continuation; and (3) the interest of other states in
recognizing the predecessor and successor states’ claims.

Global Organizations

After achieving independence, a new state, regardless of whether it is


characterized as a breakaway successor state from a continuity or a successor state
from a dissolution, will have to apply to the United Nations (UN) for membership.
Membership in the UN and its primary subsidiary organizations will depend on
whether the Security Council supports and recommends the new state’s application
to the General Assembly. Gathering Security Council support will depend on
whether the new state meets the conditions for UN membership, which includes
meeting the obligations of the UN Charter.

Russia’s continuation of the Soviet Union’s UN membership demonstrates


how international organization membership in the context of state succession may
become politicized. Furthermore, although recent state practice demonstrates that
international organizations prefer to deal with membership issues by means of a
devolution agreement,99 international organizations remain largely reluctant to
accept an arrangement based solely on a devolution agreement, as was the case
with the Czech and Slovak Agreement for alternating continuity.

Former Soviet Union

The United States, United Kingdom, and France determined that it was in
their interests to support Russia as the continuing state of the former Soviet Union
in the UN primary bodies, in particular, in the Security Council. All three states
99
“Devolution” refers to the transference of powers from a central government to a local or regional government.
See MERRIAM-WEBSTER ONLINE DICTIONARY, available at http://www.m-w.com/dictionary/devolution.

28
therefore declared Russia to be the continuing state of the former Soviet Union.
After the Commonwealth of Independent States (CIS) enacted a declaration
supporting Russia as the continuing state of the former Soviet Union for purposes
of UN membership, Russia notified the Secretary-General that the name of the
Soviet Union had been changed to the Russian Federation. The Secretary-General
accepted this notification. In addition, Russia assumed the membership of the
former Soviet Union in the other primary UN bodies.100 The other breakaway
states, with the exception of Belarus and Ukraine, applied for new membership to
these bodies. Belarus and Ukraine were founding members of the UN and thus did
not have to seek membership again following the breakup of the Soviet Union.101

Former Czechoslovakia

The Czech and Slovak Republics developed a theory of alternating


continuity in an attempt to preserve the rights and privileges of the former
Czechoslovakia. For UN subsidiary organizations and other international
organizations, the Czech and Slovak Republics alternated continuity status. The
Czech Republic planned to continue the membership of Czechoslovakia in half of
the organizations in which Czechoslovakia held membership, and the Slovak
Republic would continue membership in the other half. The Czech and Slovak
Republics entered into an agreement with each other whereby they specified the
organizations to which each would succeed. In the context of the UN General
Assembly, both Republics submitted new applications for membership, which the
UN approved.102

The UN subsidiary organizations, however, rejected this approach and the


Czech and Slovak Republics had to apply for new membership in the other UN
organizations, just as they had applied for new membership in the General
Assembly. However, the UN subsidiary organizations did elect either the Czech
Republic or Slovak Republic to fill seats on governing councils that had become
vacant as a result of the breakup of Czechoslovakia. These elections corresponded
to the Czech and Slovak bilateral agreement.103

100
Konrad G. Buhler, STATE SUCCESSION AND MEMBERSHIP IN INTERNATIONAL O RGANIZATIONS 166-9 (2001).
101
Konrad G. Buhler, STATE SUCCESSION AND MEMBERSHIP IN INTERNATIONAL O RGANIZATIONS 172-3 (2001).
102
Konrad G. Buhler, STATE SUCCESSION AND MEMBERSHIP IN INTERNATIONAL O RGANIZATIONS 274-5 (2001).
103
See Konrad G. Buhler, STATE SUCCESSION AND MEMBERSHIP IN INTERNATIONAL ORGANIZATIONS 273-83 (2001).

29
Regional Organizations

While regional organizations each have their own set of membership


requirements, it is general practice for regional organizations to establish methods
for acquiring membership within their constitutional charter or constitutive act.104
Regional organizations in which an independent Southern Sudan may pursue
membership include the African Union, the Intergovernmental Authority for
Development (IGAD), and the Nile Basin Initiative.

International Financial and Trade Organizations

The constitutions of the IMF and World Bank do not address matters of state
succession.105 In these cases, the organizations look to general principles of
international law to determine membership. These principles provide that the
continuing state generally assumes the membership of the predecessor state in
international organizations, while the breakaway state must seek new
membership.106 To succeed to the IMF as a breakaway state, the new state must
agree to the IMF’s Articles of Agreement107 and take all necessary steps to meet the
obligations the Articles of Agreement place on IMF member states. Similarly, the
new state likely must agree to criteria set by the World Bank in order to succeed to
that organization.

International Monetary Fund

The IMF Articles of Agreement

The IMF Articles of Agreement do not contain guidelines on state succession


and are silent on whether a state has to be a member of the UN before applying to
membership in the IMF. Article II addresses membership. Section 1 describes
original members of the Fund as those states that participated in the United Nations
Monetary and Financial Conference and accepted membership in the IMF before

104
See, e.g., The Constitutive Act of the African Union art. 29 (multilateral, 2000), available at http://www.africa-
union.org/root/au/AboutAu/Constitutive_Act_en.htm#Article29; see also Agreement Establishing the Inter-
Governmental Authority on Development art. 1A(b)-(d) (multilateral, 1996), available at
http://www.iss.co.za/af/regorg/unity_to_union/pdfs/igad/AgreementEstab.pdf.
105
A state may not be a member of the World Bank unless it is also a member of the IMF.
106
This principle has been applied almost exclusively in the case of decolonization. D.P. O’Connell, STATE
SUCCESSION IN MUNICIPAL LAW & INTERNATIONAL LAW 184-187, Vol. II (1967).
107
See Articles of Agreement: International Monetary Fund and International Bank for Reconstruction and
Development art. II, § 2 (Dec. 27, 1945), available at http://www.imf.org/external/pubs/ft/aa/index.htm.

30
December 31, 1945.108 Section 2 outlines membership eligibility for non-original
states:

“Membership shall be open to other countries at such times and in


accordance with such terms as may be prescribed by the Board of
Governors. These terms, including the terms for subscriptions, shall be
based on principles consistent with those applied to other countries that are
already members.”109

In addition, Section 21(a) of the By-Laws of the International Monetary


Fund – Applications for Membership – provides, “Any country may apply for
membership in the Fund by filing with the Fund an application, which shall set
forth all relevant facts.”110 Thus, according to the IMF Articles of Agreement, any
state may apply for membership and membership shall be open to a state
depending on terms set forth by the Board of Governors. These terms shall be
based on principles consistent with those applied to other member countries.

IMF Membership in the Context of State Succession

In light of the fact that the governments of the Czech and Slovak Republics
were aware that Czechoslovakia would cease to exist on December 31, 1992, the
two governments approached the IMF and World Bank Group in advance to
request negotiations regarding succession to the institutions on January 1, 1993.
The Republics agreed on a constitutional framework that divided the property of
Czechoslovakia between the Czech Republic and the Slovak Republic using both
the territorial principle and the population principle.111 Having established the
domestic legal conditions for the succession and assumption of the rights and
obligations set by international financial institutions, the Republics notified the
IMF that they would like to succeed to its membership effective January 1, 1993.

During November and December 1992, the Finance Ministers of the Czech
and Slovak Republics and IMF officials discussed the rights and obligations each
108
Articles of Agreement: International Monetary Fund and International Bank for Reconstruction and
Development, art. II, sec. 1 (Dec. 27, 1945), available at http://www.imf.org/external/pubs/ft/aa/index.htm.
109
Articles of Agreement: International Monetary Fund and International Bank for Reconstruction and
Development, art. II, sec. 2 (Dec. 27, 1945), available at http://www.imf.org/external/pubs/ft/aa/index.htm.
110
International Monetary Fund, Applications for Membership, By-Laws of the International Monetary Fund, sec.
21. (June 13, 1978), available at http://www.imf.org/external/pubs/ft/bl/bl21.htm.
111
The territorial principle results in the assignment of debt to a particular successor state on the basis that the debt
can be identified with specific projects or borrowers within the territory of the new state. The population principle
entails the division of assets in accordance with population size.

31
Republic would assume with succession to IMF membership. The Republics took
the steps necessary to enable them to succeed to membership,112 and assumed the
obligations mandated by the IMF’s Articles of Agreement.113

In the case of the former Yugoslavia, the IMF developed a “conditional


succession” approach, extending membership to successor states provided (1) they
were willing and able to meet the obligations contained in the Articles of
Agreement, and (2) no other state strongly opposed the successors’ membership.114
The intent of the conditional succession approach was specifically (1) to develop a
succession model whereby all of the successor states could succeed to membership
with the exclusion of Serbia, which claimed it was the continuing state of the
former Yugoslavia against the wishes of the international community,115 and (2) to
condition the succession to membership on an agreement of each particular state’s
allocation of the former Yugoslavia’s debt and assets.116

Eventually, membership in the IMF by the states that composed the former
Yugoslavia was open to each successor state, when they met the following
conditions:117

• Notification of the IMF that the state agreed to the allocation of its share
in the assets and liabilities of [Yugoslavia];

• Notification of the IMF that the state agreed “in accordance with its law,
to succeed to the membership in accordance with the terms and
conditions specified by the IMF and has taken all the necessary steps to
enable it to succeed to such membership and carry out all of its
obligations under the Articles of Agreement;”

112
In the case of the Czech and Slovak Republics, these steps included continuing the transformation from the
communist system to a market economy with greater privatization and economic growth. To facilitate this
transformation, the Republics took steps to: stabilize consumer prices while simultaneously expanding the private
sector; lower the employment rate; implement major tax reform; and develop the institutional framework for private
economic activity, which included providing privatization vouchers and adopting new banking regulations.
113
The Czech and Slovak Republics became members of the IMF on January 1, 1993. Konrad G. Buhler, STATE
SUCCESSION AND MEMBERSHIP IN INTERNATIONAL ORGANIZATIONS 283 (2001).
114
International Monetary Fund, Issues of State Succession Concerning Yugoslavia in the Fund, 7 (Nov. 20, 1992).
115
Later Serbia succeeded to the IMF as one of the dissolved states of the former Yugoslavia rather than as the
continuing state.
116
The World Bank’s General Counsel criticized the conditional succession approach, and questioned the legality of
the IMF’s standard for extension of membership based on states being “willing and able” to carry out the IMF’s
conditions. Despite these reservations of the World Bank, the IMF pursued the conditional succession approach.
117
International Monetary Fund, Press Release No. 92/92, 1 (Dec. 15, 1992).

32
• Determination by the IMF that the state is “able to meet its obligations
under the Articles;” and

• Determination that the state has no overdue financial obligations to the


IMF.

The IMF provided that the successor states would have a period of up to six
months to meet the above conditions.118 Subsequent to this decision of the IMF,
Slovenia, Croatia, Bosnia, and Macedonia succeeded to membership in the IMF.

Relationship between Membership in the UN and the IMF

Recent state practice demonstrates that the majority of IMF members


obtained UN membership before succeeding to the IMF; however, some states
succeeded to the IMF before becoming official members of the UN. Therefore,
while most states are UN members before succeeding to IMF membership, UN
membership is not an absolute prerequisite for succession to the IMF. For
instance, due to the controversy between Greece and Macedonia surrounding
Macedonia’s name, Macedonia did not become a UN member until General
Assembly Resolution 47/225 admitted the state in 1993, as “the former Yugoslav
Republic of Macedonia.”119 However, prior to becoming a UN member,
Macedonia succeeded to the IMF on the same date as the other former Yugoslav
Republics, December 18, 1992, thus enabling the state to begin economic structural
reform while waiting to become a UN member.120

World Bank Group

A state may not join the World Bank until it attains membership in the IMF.
The Czech Republic and the Slovak Republic succeeded to membership in the
World Bank Group on January 4, 1993, following negotiations with the World
Bank similar to those in which the Republics engaged with the IMF. The World
Bank extended membership to the Republics after passing Executive Directors’
Resolution 93-1, which provided that the membership of the Czech Republic and
the Slovak Republic was to be substituted for the membership of Czechoslovakia

118
International Monetary Fund, Press Release No. 92/92, 2 (Dec. 15, 1992).
119
United Nations General Assembly A/RES/47/225 (April 8, 1993), available at
http://www.un.org/documents/ga/res/47/a47r225.htm.
120
See Resident Representative Office in FRY Macedonia, available at
http://www.imf.org/external/country/mkd/rr/index.htm.

33
in the World Bank. The Resolution also allocated the assets and liabilities of the
former Czechoslovakia amongst the successor states and provided that the
membership would be subject to similar conditions as those required by the IMF.121

In February 1993, the Executive Directors of the World Bank determined


that Yugoslavia had ceased to exist and that the shares of the former Yugoslavia’s
assets and liabilities in the fund would pass to the successor states. The Directors
additionally determined that they would permit those successor states to succeed to
the membership of the former Yugoslavia upon the satisfaction of the following
conditions:122

• Notification of the World Bank that: (1) the state had accepted, in
accordance with its law, as successor to Yugoslavia, the Articles of
Agreement and the terms and conditions relating to the
subscription of the former Yugoslavia to the capital stock of the
World Bank with respect to the shares assumed by the said
successor Republic; (2) the state had taken all steps necessary to
carry out these obligations; and (3) the successor Republic had
furnished to the Bank such information in respect of the
notification as the Bank shall have requested;

• Payments to the World Bank which are necessary with respect to


the shares of the World Bank’s capital stock to be allocated to the
successor Republic, taking into account payments already made by
the former Yugoslavia and allocated to such Republic;

• Agreement with the World Bank on the loans made by the World
Bank to or with the guarantee of the former Yugoslavia which the
said Republic assumes; and

• Elimination of, or agreement with the World Bank on a plan to


eliminate, arrears, if any, in the servicing of World Bank loans
made to or with the guarantee of the former Yugoslavia assumed
by the successor Republic.

121
See Vincent Boland, Czechs and Slovaks seek last-minute deal over external debt, FINANCIAL TIMES, 16 (Dec.
31, 1992).
122
World Bank, Socialist Federal Republic of Yugoslavia Termination of Membership and Succession to
Membership, Executive Directors’ Resolution No. 93-2 (Feb. 25, 1993); see also World Bank, Press Release No.
93/S43 (Feb. 26, 1993).

34
The World Bank’s determination of dissolution and extension of
membership to the former Yugoslav Republics differed from the IMF’s approach
in two important respects. First, rather than declaring that the former Yugoslavia
was dissolved and then asking the successor states to agree to assume an allocation
of debts and assets, the World Bank secured agreement among all of the successor
states regarding their allocation of assets prior to announcing the dissolution of the
former Yugoslavia.123 Second, although attaching conditions to the succession of
membership,124 the World Bank did not require a specific finding that a particular
successor state would be able to carry out the obligations required under the
Articles of Agreement. Subsequent to the decision of the World Bank, Slovenia,
Croatia, Bosnia, and Macedonia succeeded to membership in the World Bank.125

123
See World Bank, Socialist Federal Republic of Yugoslavia Termination of Membership and Succession to
Membership, Executive Directors’ Resolution No. 93-2 (Feb. 25, 1993).
124
See World Bank, Socialist Federal Republic of Yugoslavia Termination of Membership and Succession to
Membership, Executive Directors’ Resolution No. 93-2 (Feb. 25, 1993).
125
Macedonia was permitted to accede to the World Bank as the Former Yugoslavia Republic of Macedonia on
December 30, 1993.

35
CONTINUING TREATY OBLIGATIONS

An examination of international legal principles demonstrates that a


successor state, such as Southern Sudan, has the option of choosing which treaties
signed by the predecessor state (the Republic of Sudan) it would like to uphold.
However, based on recent state practice, the international community will likely
expect a breakaway successor state to continue its treaty obligations. The
government of the breakaway state may also make an affirmative declaration of its
intent to be bound to treaties as part of the process of requesting international
recognition and establishing diplomatic relations.

The 1978 Vienna Convention on Succession of States in Respect of Treaties


The 1978 Vienna Convention on Succession of States in Respect of Treaties
(1978 Vienna Convention) outlines legal principles that guide the determination of
treaty continuity. Under Article 17 of the 1978 Vienna Convention, breakaway
states are not bound to uphold treaties. They may, however, choose to become
party to any multilateral treaty that was in force at the date of succession by
notification, as long as application to the treaty is not incompatible with the object
and purpose of the treaty.126 Bilateral treaties that are in force at the date of
succession and relate to the territory of the newly independent state will be upheld
as long as (1) the parties to the treaty expressly agree to uphold it, or (2) they are
considered as having agreed to uphold it by reason of their conduct.127

Recent State Practice

While a breakaway successor state may argue for application of the “clean
128
slate” doctrine under Article 17, recent state practice indicates that a breakaway
successor state will continue to be bound to international treaties following its
independence. However, organizations such as the European Community and
Council of Europe have taken a more cautious approach. The government of a
breakaway state may also provide affirmative assurances to be bound by the treaty
obligations of the continuing state as part of the process of requesting international
recognition and establishing diplomatic relations with the international community.

126
Vienna Convention on the Succession of States in Respect of Treaties, art. 17, Aug. 23, 1978, 1946 U.N.T.S. 3;
17 I.L.M. 1488 (1978), available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/3_2_1978.pdf.
127
Vienna Convention on the Succession of States in Respect of Treaties, art. 17, Aug. 23, 1978, 1946 U.N.T.S. 3;
17 I.L.M. 1488 (1978), available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/3_2_1978.pdf.
128
Under the “clean slate” doctrine, a successor state may pick the treaties to which it will succeed. Anthony Aust,
MODERN TREATY LAW AND PRACTICE 310 (2000).

36
Presumption of Continuity

The United States (US) Department of State concluded that successor states
were obligated to fulfill the treaty rights and obligations of the respective
predecessor states in the dissolutions of the former Soviet Union, former
Yugoslavia, and former Czechoslovakia.129 Though it had concluded in prior cases
of state separation that successor states were not bound, the Department of State
noted that the individual circumstances of more recent breakups, as well as “US
interests in maintaining the stability of legal rights and obligations,” warranted a
presumption that treaty relations continue in force.130

The individual member states of the European Community and the Council
of Europe also adopted a presumption of continuity of treaty relations for the
successor states in the dissolutions of the former Soviet Union, former Yugoslavia,
and former Czechoslovakia. However, the European Community and the Council
of Europe have, in some cases, chosen to “renew,” “modify,” or “cancel” the
treaties of the predecessor state. For example, following the dissolution of the
former Yugoslavia, Slovenia notified the Netherlands, as depository for the Statute
of the Hague Conference on Private International Law, that it considered itself a
party to the Statute and thus an automatic member. This position was supported by
both the Netherlands and the Secretariat of the Hague Conference.131 However, the
Council of Europe concluded that the former Yugoslavia had ceased to exist for the
purposes of the Conventions and Agreements of the Council of Europe to which it
was a party. This conclusion prohibited the successor states of the former
Yugoslavia from succeeding to any of the 16 agreements with the Council of
Europe to which the former Yugoslavia had been a party.132

129
See Treaty Succession and Related Issues in the Wake of the Breakup of the USSR, Presentation by Edwin D.
Williamson, Legal Adviser at the U.S. Department of State before the meeting of the American Society of
International Law 1 (Apr. 1, 1992).
130
See Treaty Succession and Related Issues in the Wake of the Breakup of the USSR, by Edwin D. Williamson,
Legal Adviser at the U.S. Department of State before the meeting of the American Society of International Law 1
(Apr. 1, 1992). Previous cases of state separations in which the Department of State concluded that the
disassociated separating states were not bound by treaty rights and obligations include the disassociation of Panama
from Columbia in 1903, Finland from the Soviet Union after World War I, Poland and Czechoslovakia from the
Austro-Hungarian Empire after World War I, and Pakistan from India in 1947.
131
See Diplomatic Note from the Ministry of Foreign Affairs of the Republic of Slovenia to the U.S. Embassy in
Vienna (May 14, 1992); see also Letter from Foreign Minister Dimitrij Rupel of Slovenia to Foreign Minister Hans
van den Broek of the Kingdom of the Netherlands (June 8, 1992).
132
See Letter from Deputy Director of Legal Affairs Marie-Odile Widerkehr of the Council of Europe to Secretary
of State James Baker of the United States of American (Oct. 6, 1992).

37
Other international legal bodies have reinforced the notion of a presumption
of continuity, particularly with regards to human rights treaties. For example, the
International Court of Justice (ICJ) found a proclamation Serbia issued in
September of 1992 to be adequate for the purposes of determining that Serbia was
party to the Genocide Convention.133 One judge noted in a separate opinion that
the Genocide Convention was intended to protect human rights without any “time-
lag” in protections due to state breakups.134 Another judge argued for “automatic
continuity” of treaties and conventions dealing with human rights, highlighting the
notion that the value of human life “transcends concepts of state sovereignty.”135
The Court therefore exhibited a strong preference for the continuity of treaty
obligations following state breakups, particularly in the case of human rights
treaties.

Affirmation of Commitment to be bound by Treaties

State practice indicates that a breakaway successor state may provide


assurances that it will abide by the treaties it chooses to uphold, if the state adopts a
“clean slate” approach. These assurances are frequently part of the process of
achieving international recognition and establishing diplomatic relations. Further,
in some cases, successor states must also deposit an instrument of accession136 in
the appropriate treaty depository137 to demonstrate the intent to be bound.

133
The 1992 declaration provided, “The Federal Republic of Yugoslavia, continuing the State, international legal
and political personality of the Socialist Federal Republic of Yugoslavia, shall strictly abide by all the commitments
that the Socialist Federal Republic of Yugoslavia assumed internationally.” This declaration was the same one
rejected by the Council of Europe in its determination that the former Yugoslavia had ceased to exist. See
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia v. Yugoslavia),
1996 ICJ 595 (Jul. 11, 1996).
134
See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia v.
Yugoslavia), 1996 ICJ 595 (Jul. 11, 1996) (Separate opinion of Judge Shahabuddeen).
135
See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia v.
Yugoslavia), 1996 ICJ 595 (Jul. 11, 1996) (Separate opinion of Judge Weeramantry).
136
An instrument of accession is a formal, sealed letter referring to the decision to be a party to a treaty and signed
by the state’s responsible authority.
137
A treaty depository can be a state or organization. A treaty may be prepared and signed in one copy only, which
may be entrusted to one of the parties, usually the State that had hosted the Conference at which the treaty had been
adopted; and this depositary in turn prepared certified copies for all the parties. Further, the depositary, among other
things, verifies the acceptability of signatures and instruments (or documents of a similar nature) and of related
reservations, declarations, etc., and duly informs the parties concerned, through depositary notifications, of such
actions, and also of the entry into force of the treaties. See United Nations Treaty Collection, Summary of Practice
of the Secretary-General as Depositary of Multilateral Treaties, available at
http://untreaty.un.org/ENGLISH/Summary.asp.

38
Former Soviet Republics

Many of the breakaway states of the former Soviet Union affirmed their
commitment to fulfill treaty obligations through an exchange of diplomatic letters
with the United States. In December 1991, President Bush sent a Presidential
Letter to President Shushkevich of Belarus. The letter recognized Belarus as an
independent state and offered to conduct diplomatic relations based on assurances
regarding a number of commitments, including the commitment to fulfill the treaty
obligations of the former Soviet Union. President Shushkevich accepted the offer
of diplomatic relations, and assured President Bush that Belarus would “fulfill the
obligations of the Soviet Union.”138

Similarly, Slovenia enacted a constitutional law affirming its commitment to


be bound by the international agreements concluded by the former Yugoslavia.139
On May 14, 1992, the Slovenian Foreign Ministry acted in accordance with this
law and notified the US Embassy in Vienna, via diplomatic note, that the
“international agreements concluded by Yugoslavia and relating to the Republic of
Slovenia will be effective in the territory of the Republic of Slovenia.”140

Czech and Slovak Republics

After the dissolution of the former Czechoslovakia in 1993, Slovakia, a


successor state, and Poland established the Protocol on Succession to the Bilateral
Treaties Concluded between Czechoslovakia and Poland between 1918 and
1992.141 Furthermore, both the Czech and Slovak Republics informed Hungary
that they accepted as binding treaties around 100 international agreements
concluded between Hungary and the former Czechoslovakia.142

138
Similar letters were exchanged with many of the successor states of the former Soviet Union, Czechoslovakia,
and Yugoslavia. See Letter from President Bush to President Shushkevich of Belarus (Dec. 26, 1991); Letter from
President Shushkevich of Belarus to President Bush (Dec. 26, 1991).
139
The constitutional law also provided that the Executive Council would submit to the Assembly a list of
international agreements, and that the Assembly would act following the Executive Council’s notification of other
parties to those agreements. See Constitutional Law on the Enforcement of the Basic Constitutional Charter on the
Autonomy and Independence of the Republic of Slovenia, Art. 3 (Republic of Slovenia, June 25, 1991).
140
See Constitutional Law on the Enforcement of the Basic Constitutional Charter on the Autonomy and
Independence of the Republic of Slovenia (Republic of Slovenia, June 25, 1991).
141
See Protocol on Succession to the Bilateral Treaties Concluded Between Czechoslovakia and Poland Between
1918 and 1992 (Apr. 24, 1993).
142
See Czechs, Slovaks Accept Existing Agreements, FIBIS-EEUU-93, at 24 (Jan. 14, 1993).

39
ESTABLISHING SOUTHERN SUDANESE CITIZENSHIP

In approaching the potential of Southern Sudanese secession in 2011, the


Government of Southern Sudan may want to consider how it will address
citizenship rights both in terms of its own laws and regulations as a sovereign
independent state, as well as in terms of possible agreements with the Government
of Sudan. Several international organizations and institutions have adopted non-
binding declarations concerning citizenship within the context of state succession.
These declarations generally discourage discrimination in determining nationality
after a succession process, and advocate for a system that provides individuals
affected by the state succession with an option to freely choose their future
citizenship. They also encourage states to grant citizens a “reasonable” time to
make decisions related to their citizenship and discouraged linking this decision to
property. However, there are no universally accepted international norms or
standards that dictate states’ decisions on this issue. Indeed, under international
law, states are accorded great leeway in determining citizenship criteria, which
extends to situations of state succession.

International Law regarding Citizenship in the Context of State Succession

Under international law, a state has the authority to grant citizenship


pursuant to its own individual criteria.143 Several international organizations and
institutions have, however, adopted non-binding declarations concerning
citizenship within the context of state succession.144 These declarations generally
discourage discrimination in determining citizenship in the context of the break up
of a state (state succession), and advocate for a system that provides individuals

143
The Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws mandates that it is “for
each State to determine under its own law who are nationals.” Hague Convention on Certain Questions Relating to
the Conflict of Nationality Laws, art. 1 (Apr. 12, 1930).
144
In 1996, the Venice Commission adopted the Declaration on the Consequences of State Succession for the
Nationality of Natural Persons144 (Venice Commission Declaration), which urges states to respect the principle that
everyone has the right to a nationality. The Venice Commission Declaration urges successor states to grant
nationality to everyone who meets its criteria, without discrimination based on ethnicity, race, religion, language, or
political opinions. See Venice Commission, Declaration on the Consequences of State Succession for the
Nationality of Natural Persons, European Commission for Democracy through Law Part III (8b) (Sept. 13-14,
1996). Similarly, the International Law Commission’s Nationality of Natural Persons in Relation to the Succession
of States (ILC Draft Articles) provides that every individual holding the nationality of the predecessor state at the
time of succession has the right to the nationality of at least one of the states concerned. The ILC Draft Articles
further prohibit discrimination and arbitrary decisions concerning nationality, and presume that persons who have
their habitual residence in the territory that secedes acquire the nationality of the successor state. See International
Law Commission, Nationality of Natural Persons in Relation to the Succession of States arts. 1, 5, 15, 16 (1999),
available at http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/3_4_1999.pdf.

40
affected by the state succession with an option to freely choose their future
citizenship.

In particular, the Venice Commission’s Declaration on the Consequences of


State Succession for the Nationality of Natural Persons (Venice Commission
Declaration) suggests the adoption of the “right of option,” referring to the right of
individuals affected by territorial changes to choose either the nationality of the
successor breakaway state or that of the continuing state, and includes the ability to
refuse a certain nationality.145 Additionally, the International Law Commission’s
Nationality of Natural Persons in Relation to the Succession of States (ILC Draft
Articles) provides that every individual holding the nationality of the predecessor
state at the time of succession has the right to the nationality of at least one of the
states concerned.146 The ILC Draft Articles further prohibit discrimination and
arbitrary decisions concerning nationality.147

While the ILC Draft Articles also presume that persons who have their
habitual residence in the territory that secedes acquire the nationality of the new
successor state,148 this should also be read in the context of the Venice Commission
Declaration which indicates that principles of citizenship in state succession should
be dictated by “respect, as far as possible, [for] the will of the person concerned,”
and that this option be exercised within a reasonable time.149

Furthermore, with regards to the effect of an individual’s choice of


citizenship after succession, the Venice Commission Declaration also counsels

145
Venice Commission, Declaration on the Consequences of State Succession for the Nationality of Natural
Persons, European Commission for Democracy through Law Part V (15) (16) (Sept. 13-14, 1996).
146
International Law Commission, Nationality of Natural Persons in Relation to the Succession of States arts. 1, 5,
15, 16 (1999), available at http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/3_4_1999.pdf.
147
International Law Commission, Nationality of Natural Persons in Relation to the Succession of States arts. 1, 5,
15, 16 (1999), available at http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/3_4_1999.pdf.
148
International Law Commission, Nationality of Natural Persons in Relation to the Succession of States arts. 1, 5,
15, 16 (1999), available at http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/3_4_1999.pdf.
149
Each state is responsible for the establishment of rules and procedures for nationality. According to international
law, these rules shall “avoid creating cases of statelessness” and “respect, as far as possible, the will of the person
concerned.” Venice Commission, Declaration on the Consequences of State Succession for the Nationality of
Natural Persons, European Commission for Democracy through Law Part II (5) & (6) (Sept. 13-14, 1996) (quoting
Article 2.1(b) of the Vienna Convention of 1978 on Succession of States in Respect of Treaties and Article 2.1(a) of
the 1983 Vienna Convention on Succession of States in Respect of State Property, Archives and Debts). See also
Venice Commission, Declaration on the Consequences of State Succession for the Nationality of Natural Persons,
European Commission for Democracy through Law Part V (15) (16) (Sept. 13-14, 1996), available at
http://www.coe.int/t/e/legal_affairs/legal_co-
operation/foreigners_and_citizens/nationality/documents/legal_instruments/Declaration%20on%20consequences%2
0of%20State%20succession.pdf.

41
against attaching consequences to individuals or their property based on the
individual’s choice of nationality.150

While these declarations can provide guidance for states addressing


citizenship rights, it should be noted that there are no universally accepted
international law norms or standards regarding citizenship within the context of
state succession.

State Practice: Citizenship in the Context of State Succession

Eritrea and Ethiopia

Prior to Eritrea’s 1993 independence referendum, all persons of Eritrean


origin born in Ethiopia, whether living in the province of Eritrea or another part of
the country, were considered, under Ethiopian law, Ethiopian citizens.151 In
preparation for the referendum, the Provisional Government of Eritrea issued the
Eritrean Nationality Proclamation, which established the criteria for Eritrean
citizenship based in large part on ethnicity, and the Eritrean Referendum
Proclamation, which provided that Eritrean “citizens” were eligible to vote.152
150
Venice Commission, Declaration on the Consequences of State Succession for the Nationality of Natural
Persons, European Commission for Democracy through Law Part V (15) (16) (Sept. 13-14, 1996).
151
Ethiopian Nationality Law art. 1 (Ethiopia, 1930), available at http://www.unhcr.org/cgi-
bin/texis/vtx/refworld/rwmain?page=country&docid=3ae6b52ac&skip=0&coi=ETH&querysi=law&searchin=title&
display=10&sort=date.
152
The Provisional Government of Eritrea first issued the Eritrean Nationality Proclamation (no. 21/1992), defining
requirements for Eritrean citizenship, and then issued the Eritrean Referendum Proclamation (no. 22/1992),
referenced in International Organization for Migration, Case Studies on the Participation of Conflict Forced
Migrants in Elections, 69 (May 2003), available at
http://www.geneseo.edu/~iompress/PEP%20Case%20Studies%202003.pdf.
152
In order to establish voter eligibility criteria, the Provisional Government of Eritrea (PGE) issued the Eritrean
Nationality Proclamation (no. 21/1992), which established requirements for Eritrean nationality. The proclamation
was largely based on the 1933 Eritrean Nationality Law, promulgated during the Italian colonial period. The
proclamation granted nationality to those who:
- Had Eritrean origin (resident in Eritrea in 1933);
- Had been born to a father or mother of Eritrean origin in Eritrea or abroad;
- Had been born in Eritrea to parents whose origin was unknown;
- Possessed a claim to Eritrean nationality but lived abroad and wished to renounce foreign citizenship;
- Were not of Eritrean origin but had resided in Eritrea between 1934 and 1951 and had not committed anti-
people acts during the struggle for liberation;
- Entered and resided in Eritrea in or after 1952; and
- Had resided in Eritrea for a period of ten years before 1974 or had resided in Eritrea for twenty years while
making periodic visits abroad; and
o Possessed high integrity and had not been convicted of any crime;
o Spoke and understood an Eritrean language;
o Were free of physical or mental handicap;
o Had renounced other nationalities;

42
Consequently, 60,129 persons of Eritrean origin living in parts of Ethiopia other
than Eritrea registered to vote in the referendum.153

Eritrean and Ethiopian authorities did not conclude any agreements


concerning citizenship prior to polling.154 However, immediately following
Eritrea’s 1993 referendum and resulting declaration of independence, the
governments of Eritrea and Ethiopia signed the Agreement on Security and Related
Matters between the Ministries of Internal Affairs of the Governments of Ethiopia
and Eritrea (the “Agreement”), which, among other things, addressed matters of
citizenship and the status of Eritreans and Ethiopians residing in the other state’s
territory after the break up.155 Specifically, the Agreement stipulated that
consequences related to citizenship of affected populations after the referendum
were not immediate. Rather, under the Agreement, until the citizens of Eritrea or
Ethiopia residing in the other state’s territory were identified and their citizenship
settled, the governments of Eritrea and Ethiopia were required to respect “the
traditional right of citizens of one side to live in the other’s territory.”156 Notably,
in the period immediately following Eritrean independence, the Ethiopian
government did not consider a citizen’s qualification for and participation in the
Eritrean referendum as a renunciation of Ethiopian citizenship.157

o Had decided to reside permanently in Eritrea upon obtaining Eritrean nationality;


o Had not committed .anti-people acts. during the struggle for liberation
- Had been legally adopted by an Eritrean national;
- Were legally married to Eritrean nationals, provided that they had resided in Eritrea for at least three years
and had renounced foreign nationality.
Provisional Government of Eritrea Nationality Proclamation. (no. 21/1992), referenced in International Organization
for Migration, Case Studies on the Participation of Conflict Forced Migrants in Elections, 68-69 (May 2003),
available at http://www.geneseo.edu/~iompress/PEP%20Case%20Studies%202003.pdf.
153
Human Rights Watch, Eritrea & Ethiopia, 15 THE HORN OF AFRICA WAR: MASS EXPULSIONS AND THE
NATIONALITY ISSUE (JUNE 1998-APRIL 2002) 13 (Jan. 2003), available at
http://www.hrw.org/reports/2003/ethioerit0103/ethioerit0103.pdf.
154
Human Rights Watch, Eritrea & Ethiopia, 15 THE HORN OF AFRICA WAR: MASS EXPULSIONS AND THE
NATIONALITY ISSUE (JUNE 1998-APRIL 2002), 7 (Jan. 2003), available at
http://www.hrw.org/reports/2003/ethioerit0103/ethioerit0103.pdf.
155
See Agreement on Security and Related Matters between the Ministries of Internal Affairs of the Governments of
Ethiopia and Eritrea (Ethiopia, Eritrea, 1993), referenced in Human Rights Watch, Eritrea & Ethiopia, 15 THE
HORN OF AFRICA WAR: MASS EXPULSIONS AND THE NATIONALITY I SSUE (JUNE 1998-APRIL 2002), 14 (Jan. 2003),
available at http://www.hrw.org/reports/2003/ethioerit0103/ethioerit0103.pdf.
156
Agreement on Security and Related Matters between the Ministries of Internal Affairs of the Governments of
Ethiopia and Eritrea art. 2.3 (Ethiopia, Eritrea, 1993), referenced in Human Rights Watch, Eritrea & Ethiopia, 15
THE HORN OF A FRICA WAR: MASS EXPULSIONS AND THE N ATIONALITY ISSUE (JUNE 1998-APRIL 2002), 14 (Jan.
2003), available at http://www.hrw.org/reports/2003/ethioerit0103/ethioerit0103.pdf.
157
Human Rights Watch, Eritrea & Ethiopia, 15 THE HORN OF AFRICA WAR: MASS EXPULSIONS AND THE
NATIONALITY ISSUE (JUNE 1998-APRIL 2002), 16 (Jan. 2003), available at
http://www.hrw.org/reports/2003/ethioerit0103/ethioerit0103.pdf.

43
As late as 1996, three years after the referendum, the Ethiopian government
reaffirmed its commitment to providing Ethiopian’s of Eritrean descent the option
to change their nationality.158 Unrelated disagreements over trade issues, however,
stalled efforts between the two states to resolve the issues of citizenship for
Eritreans living in Ethiopia.159 The question remained unresolved when, in May
1998, war broke out between Eritrea and Ethiopia. The government of Ethiopia
immediately began forcibly expelling persons of Eritrean origin. In addition, and
in contrast to its earlier position, Ethiopian authorities declared that those
Ethiopian citizens who had voted in Eritrea’s independence referendum had
acquired Eritrean citizenship and therefore had forfeited their Ethiopian
citizenship.160 Ultimately, the Ethiopian government forcibly deported 75,000
Ethiopian citizens of Eritrean origin.161 Eritrea likewise implemented a policy by
which thousands of Ethiopians living within Eritrea were interned or deported.162

The international community largely condemned Ethiopia’s massive


campaign of deportation, declaring Ethiopian authorities’ actions a violation of
Eritrean nationals’ human rights.163 In particular, the United States High
Commissioner for Human Rights (UNHCHR) expressed deep concern at the
“violation of human rights of Eritrean nationals being expelled from Ethiopia” and
termed the expulsions “serious violations of the rights and freedoms set forth in the

158
The two governments agreed at the Fourth Ethio-Eritrean Joint High Ministerial Commission Meeting, held
August 18-19, 1996, that “on the question of nationality…Eritreans who have so far been enjoying Ethiopian
citizenship should be made to choose and abide by their choice.” Human Rights Watch, Eritrea & Ethiopia, 16 THE
HORN OF AFRICA WAR: MASS EXPULSIONS AND THE NATIONALITY I SSUE (JUNE 1998-APRIL 2002) 14 (Jan. 2003),
available at http://www.hrw.org/reports/2003/ethioerit0103/ethioerit0103.pdf.
159
Human Rights Watch, Eritrea & Ethiopia, 15 THE HORN OF AFRICA WAR: MASS EXPULSIONS AND THE
NATIONALITY ISSUE (JUNE 1998-APRIL 2002) 16 (Jan. 2003), available at
http://www.hrw.org/reports/2003/ethioerit0103/ethioerit0103.pdf.
160
Ethiopia does not recognized dual citizenship. Hugh Byrne, Eritrea & Ethiopia: Large-Scale Expulsions of
Population Groups and Other Human Rights Violations in Connection with the Ethiopian-Eritrean Conflict, 1998-
2000, 10-11 (Jan. 2002), http://www.uscis.gov/files/nativedocuments/QAERIETH02001.pdf.
161
Human Rights Watch, Eritrea & Ethiopia, 15 THE HORN OF AFRICA WAR: MASS EXPULSIONS AND THE
NATIONALITY ISSUE (JUNE 1998-APRIL 2002), 5 (Jan. 2003), available at
http://www.hrw.org/reports/2003/ethioerit0103/ethioerit0103.pdf.
162
Human Rights Watch, Eritrea & Ethiopia, 15 THE HORN OF AFRICA WAR: MASS EXPULSIONS AND THE
NATIONALITY ISSUE (JUNE 1998-APRIL 2002) 5 (Jan. 2003), available at
http://www.hrw.org/reports/2003/ethioerit0103/ethioerit0103.pdf.
163
See, e.g., U.S. Department of State, Office of the Spokesman, Ethiopia: Expulsion of Eritreans (Aug. 6, 1998), in
Hugh Byrne, Eritrea & Ethiopia: Large-Scale Expulsions of Population Groups and Other Human Rights Violations
in Connection with the Ethiopian-Eritrean Conflict, 1998-2000, 14 (Jan. 2002),
http://www.uscis.gov/files/nativedocuments/QAERIETH02001.pdf (“The expulsions were protested by the US
government, which found ‘fundamental humanitarian and human rights concerns raised by the forcible separations
of families, the undue hardships of those detained or expelled to Eritrea, and the financial losses caused by sudden
expulsions.’”).

44
Universal Declaration of Human Rights.”164 The International Committee for the
Red Cross was also critical in reporting that Eritrean authorities forced Ethiopian
deportees to walk long distances under harsh conditions.165

Montenegro and Serbia

Prior to the 2006 Montenegrin referendum on independence, authorities


from Montenegro and Serbia concluded the Agreement on the Transformation of
the State Union Serbia and Montenegro Into the Union of Independent and
Internationally Recognized States Serbia and Montenegro (the “Belgrade
Agreement”).166 Regarding citizenship, the Belgrade Agreement provided that
citizens of Montenegro and citizens of Serbia possessed the same rights as that
state’s own citizens while within the territory of the other state, with the exception
of electoral rights.167

Immediately following the referendum and Montenegro’s ensuing


declaration of independence, the Serbian government amended its citizenship laws
and allowed Montenegrin citizens who had a registered residence in Serbia during
the state union of Serbia-Montenegro – that is, prior to the referendum – to apply
for Serbian citizenship.168 The Serbian government did not require Montenegrins
who chose to apply for Serbian citizenship to relinquish their Montenegrin
citizenship, thus allowing for dual citizenship.169

164
United Nations High Commissioner for Human Rights, Press Release: High Commissioner for Human Rights
Expresses Deep Concern at Continuing Expulsion of Eritrean Nationals from Ethiopia (Jul. 1, 1998), in Hugh
Byrne, Eritrea & Ethiopia: Large-Scale Expulsions of Population Groups and Other Human Rights Violations in
Connection with the Ethiopian-Eritrean Conflict, 1998-2000, 14 (Jan. 2002),
http://www.uscis.gov/files/nativedocuments/QAERIETH02001.pdf.
165
Agence France Presse, Ethiopia, Eritrea Must Settle on Route for Returning Refugees-ICRC (Aug. 8, 2000), in
Human Rights Watch, Eritrea & Ethiopia, 36 THE HORN OF AFRICA WAR: MASS EXPULSIONS AND THE
NATIONALITY ISSUE (JUNE 1998-APRIL 2002) 6 (Jan. 2003), available at
http://www.hrw.org/reports/2003/ethioerit0103/ethioerit0103.pdf (“These people [Ethiopian deportees] were
exposed to cold, rain, lack of food and water as well as the danger of minefields.”).
166
Agreement on the Transformation of the State Union Serbia and Montenegro into the Union of Independent and
Internationally Recognized States Serbia and Montenegro (Serbia, Montenegro, Mar. 18, 2005), available at
http://www.vlada.cg.yu/eng/mininos/index.php?akcija=vijesti&id=6371.
167
Agreement on the Transformation of the State Union Serbia and Montenegro into the Union of Independent and
Internationally Recognized States Serbia and Montenegro (Serbia, Montenegro, Mar. 18, 2005), available at
http://www.vlada.cg.yu/eng/mininos/index.php?akcija=vijesti&id=6371.
168
Serbian Government, Application of Montenegrin Citizens for Obtaining Serbian Citizenship Underway (Jul. 4,
2006), available at http://www.srbija.gov.rs/vesti/vest.php?id=24971; see also Immigration and Refugee Board of
Canada, Serbia: Rights of Montenegrin Citizens Who Live in Serbia Since the Independence of Montenegro in June
2006 (Dec. 16, 2006), available at http://www.unhcr.org/refworld/topic,463af2212,463af27f2,469cd6ad5,0.html
169
By November 2006, 9,000 Montenegrin citizens had reportedly applied for Serbian citizenship. Immigration and
Refugee Board of Canada, Serbia: Rights of Montenegrin Citizens Who Live in Serbia Since the Independence of

45
After the referendum, in March 2008 Montenegro passed the Law on
Montenegrin Citizenship, which prohibits Montenegrins from holding dual
citizenship with other states, except for those states with which Montenegro has
concluded an international treaty or agreement that provides for reciprocal dual
citizenship.170 Under the law, those Montenegrin citizens who had acquired
Serbian citizenship after June 3, 2006 – Montenegro’s independence day – could
retain their Montenegrin citizenship until Montenegro concluded a bilateral
agreement with Serbia concerning dual citizenship.171 However, Montenegrins
holding Serbian citizenship would loose their Montenegrin citizenship if such an
agreement was not concluded before October 22, 2008 – one year following the
adoption of the Montenegrin Constitution.172

In October 2008, Serbian and Montenegrin authorities entered discussions


over the agreement concerning dual citizenship. As of early 2009, the parties had
reached an impasse over whether Montenegrins applying for Serbian citizenship
would be required to relinquish their Montenegrin citizenship, a requirement
Serbian officials oppose.173

The Czech and Slovak Republics

Prior to 1993, persons residing in Czechoslovakia possessed citizenship at


both the federal and republican levels.174 That is, persons were considered citizens
of both Czechoslovakia and the republic (either the Czech Republic or Slovakia)
based on either residence or place of birth.175
Montenegro in June 2006 (Dec. 16, 2006), available at
http://www.unhcr.org/refworld/topic,463af2212,463af27f2,469cd6ad5,0.html.
170
Law on Montenegrin Citizenship art. 18 (Montenegro, Mar. 2008), available at
http://www.unhcr.org/refworld/pdfid/47e117082.pdf.
171
Law on Montenegrin Citizenship art. 39 (Montenegro, Mar. 2008), available at
http://www.unhcr.org/refworld/pdfid/47e117082.pdf (“Montenegrin citizen granted with another citizenship after 3
June 2006 can retain citizenship of Montenegro until signing a bilateral agreement with the state whose citizenship
he or she have, but no longer then one year from adoption of the Constitution of Montenegro.”).
172
Law on Montenegrin Citizenship art. 39(Montenegro, Mar. 2008), available at
http://www.unhcr.org/refworld/pdfid/47e117082.pdf (“Montenegrin citizen granted with another citizenship after 3
June 2006 can retain citizenship of Montenegro until signing a bilateral agreement with the state whose citizenship
he or she have, but no longer then one year from adoption of the Constitution of Montenegro.”).
173
David-Lazer Galic, Serbia, Montenegro To Tackle Dual Citizenship, BALKAN INSIGHT (Jan. 28, 2009), available
at http://www.balkaninsight.com/en/main/news/16209/.
174
Constantin Iordachi, Dual Citizenship in Post-Communist Central and Eastern Europe: Regional Integration and
and Inter-ethnic Tensions, 117, available at http://src-h.slav.hokudai.ac.jp/coe21/publish/no10_ses/05_iordachi.pdf.
175
Regional residency was based on either birthplace or residence. Specifically, citizenship of inhabitants born
before 1954 was based on their place of birth, while the status of those born after that date was determined in
accordance with the citizenship of their parents. Constantin Iordachi, Dual Citizenship in Post-Communist Central

46
In anticipation of Czechoslovakia’s dissolution, both the Czech176 and
Slovak Republics177 adopted new citizenship laws. The Czech Republic’s
citizenship law granted citizenship to all persons who were citizens of the Czech
Republic under the Czechoslovakian federal state.178 The Slovak Republic
likewise extended citizenship to those who had Slovak citizenship prior to the
succession.179 Both Republics also opened up the option of citizenship to persons
who formerly held federal Czechoslovakian citizenship but who possessed regional
citizenship in the other region.180 Thus, someone who had held Czechoslovakian
national and Slovak regional citizenship prior the succession could apply for Czech
citizenship after the succession, and visa versa.

However, the Czech Republic and Slovakia approached the issue of post-
succession dual citizenship differently. The Czech Republic did not recognize dual
citizenship, mandating that individuals choose between Czech and Slovak
citizenship.181 The Czech Republic also applied additional requirements to

and Eastern Europe: Regional Integration and and Inter-ethnic Tensions, 118, available at http://src-
h.slav.hokudai.ac.jp/coe21/publish/no10_ses/05_iordachi.pdf.
176
Law of Citizenship (Czech Republic, 1993), discussed in Constantin Iordachi, Dual Citizenship in Post-
Communist Central and Eastern Europe: Regional Integration and and Inter-ethnic Tensions, 117, available at
http://src-h.slav.hokudai.ac.jp/coe21/publish/no10_ses/05_iordachi.pdf.
177
Law of Slovak National Council of 19th January 1993 Regarding Citizenship of Slovak Republic (Slovak
Republic, 1993), available at http://www.coe.int/T/E/Legal_Affairs/Legal_co-
operation/Foreigners_and_citizens/Nationality/Documents/National_legislation/Slovakia%20NationalityLaw.asp.
178
Law of Citizenship (Czech Republic, 1993), discussed in Constantin Iordachi, Dual Citizenship in Post-
Communist Central and Eastern Europe: Regional Integration and Inter-ethnic Tensions, 117, available at
http://src-h.slav.hokudai.ac.jp/coe21/publish/no10_ses/05_iordachi.pdf.
179
Law of Slovak National Council of 19th January 1993 Regarding Citizenship of Slovak Republic sec. 2 (Slovak
Republic, 1993), available at http://www.coe.int/T/E/Legal_Affairs/Legal_co-
operation/Foreigners_and_citizens/Nationality/Documents/National_legislation/Slovakia%20NationalityLaw.asp.
180
See Law of Slovak National Council of 19th January 1993 Regarding Citizenship of Slovak Republic sec. 3(1)
(Slovak Republic, 1993), available at http://www.coe.int/T/E/Legal_Affairs/Legal_co-
operation/Foreigners_and_citizens/Nationality/Documents/National_legislation/Slovakia%20NationalityLaw.asp;
see also Law of Citizenship (Czech Republic, 1993), discussed in Constantin Iordachi, Dual Citizenship in Post-
Communist Central and Eastern Europe: Regional Integration and Inter-ethnic Tensions, 117, available at
http://src-h.slav.hokudai.ac.jp/coe21/publish/no10_ses/05_iordachi.pdf.
181
Additionally, applications for citizenship had to be filed within a period of one and a half years following
promulgation of the new 1993 Czech citizenship law, after which former Czechoslovakian citizens residing in
Slovakia and wishing to apply for Czech republican citizenship had to apply for naturalization to the Ministry of
Interior. Constantin Iordachi, Dual Citizenship in Post-Communist Central and Eastern Europe: Regional
Integration and Inter-ethnic Tensions, 117, available at http://src-
h.slav.hokudai.ac.jp/coe21/publish/no10_ses/05_iordachi.pdf.
See Venice Commission, Declaration on the Consequences of State Succession for the Nationality of Natural
Persons, European Commission for Democracy through Law, par. 69 (Sept. 13-14, 1996); see also Law of
Citizenship (Czech Republic, 1993), discussed in Constantin Iordachi, Dual Citizenship in Post-Communist Central
and Eastern Europe: Regional Integration and Inter-ethnic Tensions, 117, available at http://src-
h.slav.hokudai.ac.jp/coe21/publish/no10_ses/05_iordachi.pdf.

47
Slovakian nationals desiring Czech citizenship, mandating that those persons
demonstrate uninterrupted residence for two years in the Czech Republic.182 In
contrast, Slovakia recognizes dual citizenship and therefore individuals could
obtain both Czech and Slovak citizenship.183

Former Yugoslav Republics – Slovenia, Croatia, and Macedonia

Slovenia, Croatia, and Macedonia each adopted their own laws on


citizenship immediately after declaring their independence. Each new state’s laws
automatically granted citizenship in the new state to individuals who were
previously citizens of their respective former republics. Thus, citizens of Slovenia
prior to succession were granted citizenship from the sovereign Slovenian state
after independence, as was the case for Croat and Macedonian citizens in their
respective regions.

Croatian law also allowed members of the “Croatian people” (those whose
parents were Croatian citizens) and who were resident in Croatia to become
citizens if they submitted a written statement that they consider themselves a
Croatian citizen.184 Croatian law further allowed habitual residents to qualify for
citizenship, specifically persons who had permanently lived in Croatia for at least
five years before the new citizenship law was passed, and could meet a number of
other criteria.185 Slovenia allowed all former citizens of other Republics of the
former Yugoslavia to apply for Slovenian citizenship.186 Macedonia likewise
allowed former Yugoslavian citizens to apply for Macedonian citizenship, so long
as those persons: (1) had resided in the former Socialist Federal Republic of
Yugoslavia (SFRY) for at least 15 years; (2) had attained at least 18 years of age;
and (3) were receiving personal income, and applied for citizenship within a year
of the passage of the citizenship legislation.187

182
Constantin Iordachi, Dual Citizenship in Post-Communist Central and Eastern Europe: Regional Integration
and Inter-ethnic Tensions, 117-8, available at http://src-
h.slav.hokudai.ac.jp/coe21/publish/no10_ses/05_iordachi.pdf.
183
See Law of Slovak National Council of 19th January 1993 Regarding Citizenship of Slovak Republic (Slovak
Republic, 1993), available at http://www.coe.int/T/E/Legal_Affairs/Legal_co-
operation/Foreigners_and_citizens/Nationality/Documents/National_legislation/Slovakia%20NationalityLaw.asp.
184
Law on Croatian Citizenship art. 30 (Croatia, 1991), available at
http://www.legislationline.org/topics/country/37/topic/2.
185
Law on Croatian Citizenship art. 8 (Croatia, 1991), available at
http://www.legislationline.org/topics/country/37/topic/2.
186
Citizenship Act (Slovenia, 1991), available at http://www.legislationline.org/topics/country/3/topic/2.
187
Citizenship of the Republic of Macedonia Act, art. 26 (November 1992), available at
http://www.uniset.ca/nold/zmace.txt.

48
WEALTH SHARING RELATED TO THE OIL SECTOR

In preparation for potential Southern secession, the Government of Southern


Sudan and the Government of Sudan may negotiate, in advance of the referendum,
arrangements concerning how the nation’s resource wealth, including water, land,
and oil, will be shared and managed post-2011. With respect to oil in particular, in
the event of Southern secession, the Government of Southern Sudan will have
exclusive sovereignty over oil wells located in Southern Sudan, and will not be
obligated to share its oil revenues with Khartoum. However, no matter the
Technical ad-hoc Border Committee’s ultimate definition of the north-south
border, some oil reserves are likely to be left straddling the border between the
Republic of Sudan and Southern Sudan in 2011. State practice indicates that states
may conclude inter-state wealth sharing agreements to resolve border disputes or to
realize revenues from oil fields straddling international borders. Such inter-state
wealth sharing agreements generally fall into one of two categories: 1) joint
development zones or joint development arrangements (JDZs), and 2) unitization
agreements.

Joint Development Zones (JDZs)

A Joint Development Zone (JDZ) is an area over which neither state can
exercise full sovereignty, but where the two states agree to jointly exploit the area’s
resources. State practice evidences three JDZ management structures: a single
state structure, a two state or joint venture structure, and a joint authority structure.
Under a single state management structure, one state manages the JDZ on behalf of
both states, and resources are then distributed between the states. While
administratively less complex than other systems, states largely disfavor this model
because they are unwilling to grant another state exclusive control over a JDZ’s
management.

In a two state or joint venture management structure, each state holds the
exclusive right to licensing within their portion of the JDZ. The oil companies to
which the states extend licensing agreements jointly exploit the JDZ and divide the
profits they realize as per the states’ JDZ agreement. Thus, the states jointly
manage the resource under the JDZ agreement.

Under a joint authority management structure for a JDZ, states delegate JDZ
management and administrative powers to a single independent body, or “joint
authority.” The joint authority structure requires a higher level of cooperation
between states because it establishes an international joint authority with legal

49
personality and comprehensive authority to manage the JDZ on the agreeing states’
behalves.

Single State Structure for JDZs

Qatar and Abu Dhabi

The governments of Qatar and Abu Dhabi employed a single state


management structure in a JDZ agreement concluded in March 1969 to manage the
al-Bunduq oil field.188 Although the al-Bunduq oil field is located almost entirely
within Qatar’s maritime jurisdiction, the 1969 agreement grants the Abu Dhabi
Marine Areas Company exclusive development rights over the field.189 The
Agreement provides for equal ownership of the al-Bunduq oil field and calls for
the equal division between the two governments of all revenues realized from the
field’s exploitation.190

Two State or Joint Venture Structure for JDZs

Australia and East Timor

In 2002, shortly after the international community recognized East Timor’s


independence, the governments of East Timor and Australia signed the Timor Sea
Treaty between the Government of East Timor and the Government of Australia
(the “Timor Sea Treaty”) to govern exploitation of offshore oil and gas reserves in
the Timor Gap.191 The maritime boundary between the two states allocates almost
all of the Timor Gap’s oil resources to East Timor.192 Nonetheless, the Timor Sea
Treaty redrew the maritime boundary, creating a Joint Petroleum Development
Area (JPDA) in which both countries retain oil exploitation rights.193 The

188
Agreement Between Qatar and Abu Dhabi (Qatar, Abu Dhabi, 1969), available at
http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/QAT-ARE1969MB.PDF.
189
Agreement Between Qatar and Abu Dhabi para. 7 (Qatar, Abu Dhabi, 1969), available at
http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/QAT-ARE1969MB.PDF.
190
Agreement Between Qatar and Abu Dhabi paras. 6-7 (Qatar, Abu Dhabi, 1969), available at
http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/QAT-ARE1969MB.PDF.
191
Timor Sea Treaty between the Government of East Timor and the Government of Australia (East Timor,
Australia, 2002), available at http://www.austlii.edu.au/au/other/dfat/treaties/2003/13.html.
192
David Fickling, Drawing a Line on the Timor Gap, THE GUARDIAN, (Jan. 27, 2003), available at
http://www.guardian.co.uk/world/2003/jan/27/australia.easttimor.
193
Timor Sea Treaty between the Government of East Timor and the Government of Australia art. 3 (East Timor,
Australia, 2002), available at http://www.austlii.edu.au/au/other/dfat/treaties/2003/13.html.

50
government of East Timor holds title to 90% of oil from the JPDA, while the
Australian government holds title to 10%.194

While the Timor Sea Treaty affords East Timor a far greater portion of the
JPDA’s revenues, many consider the agreement biased in Australia’s favor, given
that the actual maritime boundary between the two states places almost all of the
Timor Gap’s oil within East Timorese territory.195 The government of East
Timor’s compromise, however, represents a strategic approach to securing an
immediate and stable income from oil exploitation for the developing and newly
independent state.

Joint Authority Management Structure of JDZs

Nigeria and Sao Tome and Principe

In 2001, the governments of Nigeria and Sao Tome and Principe signed an
agreement establishing a joint authority management structure for petroleum
reserves between the two states.196 The agreement provides for a Joint Ministerial
Council comprised of no less than two and no more than four Ministers from each
state.197 The agreement grants the Joint Ministerial Council power and control
over the joint authority’s actions.198

194
Timor Sea Treaty between the Government of East Timor and the Government of Australia art. 4 (East Timor,
Australia, 2002), available at http://www.austlii.edu.au/au/other/dfat/treaties/2003/13.html.
195
Particularly given its new independence and lack of other forms of revenue, and the fact that its potential revenue
from the Timor Gap lay in escrow until the parties concluded the agreement, East Timor relied heavily on the
conclusion of the Timor Sea Treaty to secure immediate revenue for the new state. David Fickling, Drawing a Line
on the Timor Gap, THE GUARDIAN, (Jan. 27, 2003), available at
http://www.guardian.co.uk/world/2003/jan/27/australia.easttimor.
196
Treaty between the Federal Republic of Nigeria and the Democratic Republic of Sao Tome and Principe on the
Joint Development of Petroleum and other Resources, in respect of Areas of the Exclusive Economic Zone of the
Two States (Nigeria, Sao Tome and Principe, 2001), available at
http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/STP-NGA2001.PDF.
197
Treaty between the Federal Republic of Nigeria and the Democratic Republic of Sao Tome and Principe on the
Joint Development of Petroleum and other Resources, in respect of Areas of the Exclusive Economic Zone of the
Two States art. 6 (Nigeria, Sao Tome and Principe, 2001), available at
http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/STP-NGA2001.PDF.
198
Treaty between the Federal Republic of Nigeria and the Democratic Republic of Sao Tome and Principe on the
Joint Development of Petroleum and other Resources, in respect of Areas of the Exclusive Economic Zone of the
Two States art. 8.2 (Nigeria, Sao Tome and Principe, 2001), available at
http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/STP-NGA2001.PDF.

51
Inter-state Unitization Agreements

Two sovereign states may also enter into unitization agreements to exploit
resources that cross the states’ shared boundary. Such agreements treat the
resource as a single deposit in order to facilitate exploitation irrespective of the
location of an international border or any demarcation disputes. Thus, a unitization
agreement allows state parties to exercise sovereign rights over the territory, but
jointly manage the resource.

Australia and East Timor

In 2003, the governments of Australia and East Timor entered into a


unitization agreement regarding the Sunrise and Troubadour oil fields.199 While
the two states already signed a JDZ agreement to jointly exploit the Joint
Petroleum Development Area (JPDA), a boundary dispute within the JPDA
required the two states to sign an additional unitization agreement. The unitization
agreement allowed Australia and East Timor to immediately begin exploiting the
profitable Sunrise oil field, located in the JPDA’s disputed region, without first
resolving the maritime boundary dispute.

The unitization agreement addresses a wide range of matters, including laws


applicable to the unitization area, taxation and apportionment of production,
petroleum valuation, and dispute resolution mechanisms.200 The unitization
agreement is without prejudice to the two states’ conflicting positions regarding a
permanent maritime boundary.201

United Kingdom and Norway

In 2002, the governments of the United Kingdom and Norway created a joint
working group to assess the potential benefits the two countries stood to gain from
signing a framework agreement to control cross-border oil and gas exploitation in

199
Agreement between the Government of the Democratic Republic of Timor-Leste and the Government of Australia
relating to the Unitisation of the Sunrise and Troubadour Fields (Australia, East Timor, 2003), available at
http://www.laohamutuk.org/Oil/Boundary/IUA%20text.htm.
200
For instance, the agreement provides for an apportionment of the production of petroleum – 20.1% to the JPDA
and 79.9% to Australia. Agreement between the Government of the Democratic Republic of Timor-Leste and the
Government of Australia relating to the Unitisation of the Sunrise and Troubadour Fields art. 7 (Australia, East
Timor, 2003), available at http://www.laohamutuk.org/Oil/Boundary/IUA%20text.htm.
201
Agreement between the Government of the Democratic Republic of Timor-Leste and the Government of Australia
relating to the Unitisation of the Sunrise and Troubadour Fields art. 2 (Australia, East Timor, 2003), available at
http://www.laohamutuk.org/Oil/Boundary/IUA%20text.htm.

52
the North Sea.202 In 2005, the Framework Agreement Concerning Cross-Boundary
Petroleum Co-Operation between the United Kingdom and Norway (the
“Agreement”) replaced a number of separate treaties with one general framework
for joint exploration between the two states in the North Sea.203

Before a unitized field may be exploited, the Agreement requires the states
respective Licensees to enter into a Licensees’ Agreement, which defines the trans-
boundary field to be exploited and outlines specifics regarding the field’s
exploitation, including revenue distribution.204 A “unit operator” is appointed to
each trans-boundary field, and manages and develops plans for the exploitation of
the area, for which the unit operator then applies to the two governments for
approval.205 If either state disagrees with the development plan or any other aspect
of a trans-boundary field’s exploitation, the two states must hold negotiations. If
negotiations break down, the Agreement requires the states to appoint a single
expert to settle the dispute.206

202
The UK-Norwary North Sea Co-operation Workgroup, Unlocking Value Through Closer Relationships (Aug.
2002), available at http://www.pilottaskforce.co.uk/files/workgroup/309.pdf.
203
Framework Agreement Concerning Cross-Boundary Petroleum Co-Operation between the United Kingdom and
Norway (UK, Norway, 2005), available at http://www.official-documents.gov.uk/document/cm67/6792/6792.pdf.
204
Framework Agreement Concerning Cross-Boundary Petroleum Co-Operation between the United Kingdom and
Norway arts. 3.1-3.3 (UK, Norway, 2005), available at http://www.official-
documents.gov.uk/document/cm67/6792/6792.pdf.
205
Framework Agreement Concerning Cross-Boundary Petroleum Co-Operation between the United Kingdom and
Norway arts. 3.7, 3.9 (UK, Norway, 2005), available at http://www.official-
documents.gov.uk/document/cm67/6792/6792.pdf.
206
Framework Agreement Concerning Cross-Boundary Petroleum Co-Operation between the United Kingdom and
Norway chapt. 5 (UK, Norway, 2005), available at http://www.official-
documents.gov.uk/document/cm67/6792/6792.pdf.

53
INTER-STATE PIPELINE AGREEMENTS

Currently, Southern Sudanese oil is exported to international markets via


two major pipelines: the Greater Nile Oil Pipeline and the Meulut Basin Pipeline.
Should Southern Sudan secede in 2011, both these pipelines will cross an
international border. In this scenario, the South will continue to rely, at least in the
near future, on these major pipelines, as well as subsidiary pipelines and other oil
infrastructure located in the North, to export its oil to international markets. To
address arrangements to facilitate this export, the Government of Sudan and the
Government of Southern Sudan will likely need to conclude a pipeline use,
management, and rental agreement. State practice indicates that landlocked states
may use inter-state pipeline agreements or projects as a means to efficiently export
oil and natural gas. Such agreements or projects generally afford the state through
which the pipeline runs a transit fee, payable in either cash or the exported natural
resource.

Oil Pipelines

Pipelines in Africa

The Chad-Cameroon Petroleum Development and Pipeline Project (CCPP)

The Chad-Cameroon Petroleum Development and Pipeline Project


(“CCPP”) was the first public-private oil consortium of its kind.207 The
governments of Chad and Cameroon, along with the World Bank, initiated the
CCPP in 2001 to develop oil fields in Chad’s Doba Basin.208 As Chad is a
landlocked country, the state needed to build a pipeline through Cameroon to
transport Chadian oil to the Atlantic Ocean for export.209

The CCPP permits oil companies operating in Chad to efficiently export


Chadian oil to global markets. Under the CCPP, the government of Chad receives
revenues from taxes it levies against oil companies exploiting the Doba Basin and
a proportionate share of their national oil transportation company’s profits.210 For

207
Donald R. Norland, Innovations of the Chad/Cameroon Pipeline Project: Thinking Outside the Box, 14
MEDITERRANEAN QUARTERLY 2 (2003).
208
Donald R. Norland, Innovations of the Chad/Cameroon Pipeline Project: Thinking Outside the Box, 14
MEDITERRANEAN QUARTERLY 2 (2003).
209
Benjamin Esty, The Chad-Cameroon Petroleum Development and Pipeline Project, H ARVARD BUSINESS SCHOOL
(Jan. 17, 2002), available at http://www.scribd.com/doc/6890974/casechad-A.
210
The World Bank, The Chad-Cameroon Petroleum Development and Pipeline Project (2009), available at

54
its part in the venture, Cameroon receives a transit fee for oil passing through the
pipeline and through tax levies.211

Despite the Chad-Cameroon pipeline’s continued success, the CCPP’s


international component – the World Bank’s involvement – failed in 2008. Under
the initial agreement, the World Bank was to provide funding and lend stability to
the project, mitigating private investors’ hesitation to invest in a high-risk state
such as Chad. The World Bank also saw the CCPP as an opportunity to use
Chadian oil revenue to reduce poverty and spur economic growth within the
country.212

To that end, in 1998 the government of Chad and the World Bank drafted
the Petroleum Revenue Management Law (“Petroleum Law”).213 The Petroleum
Law called for the government of Chad to apportion oil revenues to “priority
poverty-reduction” sectors, such as health care and education, as well as to a
Future Generations Fund.214 The government of Chad did not, however, comply
with the Petroleum Law’s revenue apportionment scheme. After repeated talks
between the government of Chad and the World Bank, the government of Chad, in
2008, fully repaid its World Bank loan and the World Bank officially withdrew
from the CCPP.215 The government of Chad’s inability to comply with the
Petroleum Law evidences the state’s lack of strong, independent governmental
institutions necessary to implement complex financial oversight.

http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/AFRICAEXT/EXTREGINI/EXTCHADCAMPIPE
LINE/0,,contentMDK:20485927~menuPK:1175780~pagePK:64168445~piPK:64168309~theSitePK:843238,00.htm
l.
211
The World Bank, The Chad-Cameroon Petroleum Development and Pipeline Project (2009), available at
http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/AFRICAEXT/EXTREGINI/EXTCHADCAMPIPE
LINE/0,,contentMDK:20485927~menuPK:1175780~pagePK:64168445~piPK:64168309~theSitePK:843238,00.htm
l.
212
The World Bank, The Chad-Cameroon Pipeline – Rationale, available at
http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/AFRICAEXT/EXTREGINI/EXTCHADCAMPIPE
LINE/0,,contentMDK:20532054~menuPK:1329410~pagePK:64168445~piPK:64168309~theSitePK:843238,00.htm
l.
213
Carin Zississ, Chad’s Oil Troubles (Apr. 27, 2006), available at http://www.cfr.org/publication/10532/.
214
Carin Zississ, Chad’s Oil Troubles (Apr. 27, 2006), available at http://www.cfr.org/publication/10532/.
215
The World Bank, World Bank Statement on Chad-Cameroon Pipeline (Sept. 9, 2008), available at
http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/AFRICAEXT/CHADEXTN/0,,contentMDK:21894
530~menuPK:349894~pagePK:2865066~piPK:2865079~theSitePK:349862,00.html.

55
Pipelines in Conflict Zones

The Baku-Tiblisi-Ceyhan (BTC) Pipeline (Azerbaijan to Turkey via


Georgia)

The Baku-Tiblisi-Ceyhan (BTC) Pipeline transports crude oil from Azeri oil
fields in the Caspian Sea through Azerbaijan and Georgia to the Turkish port of
Ceyhan, where the oil is shipped to European markets.216 It is the first pipeline to
carry crude from the Caspian Sea without going through Russia.217 The BTC
Pipeline has been operational since June, 2006,218 and was developed by an
international consortium of eleven public and private partners, with British
Petroleum (BP) holding the largest stake (30.1%) and serving as project
manager.219 In addition to BP, Azerbaijan’s state oil company SOCAR and
Turkey’s TPAO own 25% and 6.5% of the pipeline, respectively.220 Both Georgia
and Turkey receive transit fees for the oil shipped via the BTC pipeline.221

The consortium has entered into host government agreements with each state
through which the pipeline passes222 and Azerbaijan, Turkey, and Georgia entered
into an inter-governmental agreement (IGA).223 Among other things, these
agreements were avenues to secure tax benefits, exemptions from regulation
beyond international standards, and to place the responsibility for security of the

216
BP, Project Report: Baku-Tiblisi-Ceyhan Pipeline: Spanning Three Countries From the Caspian Sea to the
Mediterranean Coast, 1, available at
http://www.bp.com/sectiongenericarticle.do?categoryId=9006669&contentId=7015093.
217
FACTBOX-Major Energy Pipelines in Central/South Europe, REUTERS, Aug. 4, 2009, available at
http://www.forbes.com/feeds/afx/2009/08/04/afx6737124.html.
218
BP, Project Report: Baku-Tiblisi-Ceyhan Pipeline: Spanning Three Countries From the Caspian Sea to the
Mediterranean Coast, 1 available at
http://www.bp.com/sectiongenericarticle.do?categoryId=9006669&contentId=7015093
219
Institute on Economic Research and Policy Consulting in Ukraine German Advisory Group on Economic
Reform, International Practices in Pipeline Operations, 6 (Apr. 2004), available at
http://ierpc.org/ierpc/papers/t27_en.pdf.
220
Mark Mansley, Building Tomorrow’s Crisis? – The Baku-Tiblisi Ceyhan Pipeline and BP: A Financial Analysis,
Claros Consulting, at 26, (May 2003), available at
http://www.baku.org.uk/publications/building_tomorrows_crisis.pdf.
221
Mark Mansley, Building Tomorrow’s Crisis? – The Baku-Tiblisi Ceyhan Pipeline and BP: A Financial Analysis,
Claros Consulting, 26, (May 2003), available at
http://www.baku.org.uk/publications/building_tomorrows_crisis.pdf.
222
See BTC Host Government Agreement – Azerbaijan, (Nov. 1999), available at
http://subsites.bp.com/caspian/BTC/Eng/agmt1/agmt1.PDF; BTC Host Government Agreement – Georgia, (Nov.
1999), available at http://subsites.bp.com/caspian/BTC/Eng/agmt2/agmt2.PDF; BTC Host Government Agreement –
Turkey, (Nov. 1999), available at http://subsites.bp.com/caspian/BTC/Eng/agmt3/agmt3.PDF.
223
BTC Inter-Government Agreement (Azerbaijan, Georgia, Turkey, Nov. 18, 1999, available at
http://subsites.bp.com/caspian/BTC/Eng/agmt4/agmt4.PDF.

56
pipeline and construction delays in the hands of the host governments.224

Because the BTC pipeline travels through areas with active conflicts or the
threat of conflicts, various security precautions have been taken in its
construction.225 As a result of these security concerns, the pipeline is buried
underground rather than running above ground, and contains various other
technical security measures, including CCTV cameras, guards, a computerized leak
detection system, and real time satellite imagery.226 Despite these security
measures, the BTC Pipeline was attacked by members of the PKK in the region of
Refahiye in Eastern Anatolia, Turkey, on August 6, 2008, leading Botas, Turkey’s
state-owned operator of the BTC Pipeline’s Turkish segment, to suspend oil flows
for several weeks.227

Pipelines Affected by Changes in Sovereignty

The Druzhba Pipeline (Former Soviet Union)

The Druzhba (or “Friendship”) Pipeline system connects oil fields in


Western Siberia with consumers in the European Union (EU).228 The Druzhba
Pipeline system is an example of how a pipeline arrangement was altered in a
situation of state succession (namely the break up of the Soviet Union).
224
Institute on Economic Research and Policy Consulting in Ukraine German Advisory Group on Economic
Reform, International Practices in Pipeline Operations, 6 (Apr. 2004), available at
http://ierpc.org/ierpc/papers/t27_en.pdf.
225
These active or potential conflicts include those between the Turkish government and the Kurdistan Worker’s
Party (PKK), between the Republic of Georgia and Russia over South Ossetia, as well as the dispute involving the
government of Azerbaijan and the government of Armenia over the Nagorno-Karabakh region. Friedrich
Steinhausler, et al., Applying Advanced Technology for Threat Assessment: A Case Study of the BTC Pipeline,
JOURNAL OF ENERGY SECURITY, 3 (Aug. 27, 2009), available at
http://www.ensec.org/index.php?option=com_content&view=article&id=212:applying-advanced-technology-for-
threat-assessment-a-case-study-of-the-btc-pipeline&catid=98:issuecontent0809&Itemid=349.
226
Friedrich Steinhausler, et al., Applying Advanced Technology for Threat Assessment: A Case Study of the BTC
Pipeline, JOURNAL OF ENERGY SECURITY, 10 (Aug. 27, 2009), available at
http://www.ensec.org/index.php?option=com_content&view=article&id=212:applying-advanced-technology-for-
threat-assessment-a-case-study-of-the-btc-pipeline&catid=98:issuecontent0809&Itemid=349.
227
Turkish authorities initially claimed that the fire and flow disruption were the result of a technical failure, likely
because the BTC host government agreement stipulates that any damage to the pipeline unrelated to pipeline
operations is the responsibility of the host government. However, the People’s Defense Force, a group affiliated
with the PKK, claimed responsibility for the incident and Turkish officials later acknowledged PKK responsibility.
Bank Information Center, Explosion Along Pipeline Confirms Civil Society Concerns, Aug. 7, 2008, available at
http://www.bicusa.org/en/Article.3867.aspx. See also Hurriyet, Turkish Official Confirms BTC Pipeline Blast is a
Terrorist Act, Aug. 14, 2008, available at http://www.hurriyet.com.tr/english/finance/9660409.asp?scr=1.
228
The Druzhba Pipeline has a capacity of over 2 million barrels per day (bpd) of oil, of which 1.4-1.6 million go
directly to the EU market. FACTBOX-Russia’s Druzhba Pipeline, One of the World’s Biggest, REUTERS, Jan. 9,
2007, available at http://www.reuters.com/article/companyNewsAndPR/idUSL0881252620070108.

57
Construction on the Druzhba Pipeline System began in 1960 following an
agreement by the 10th Session of the Council for Mutual Economic Cooperation
(COMECON) that a major pipeline should be constructed to provide crude oil
from the Soviet Union to the regional European states of Poland, Czechoslovakia,
Hungary, and the German Democratic Republic (COMECON states).229 Each of
the COMECON states assumed responsibility for the construction of the portion of
the pipeline passing through each of their respective territories.230

During the Soviet era, the Soviet Main Industry Enterprise for Oil
Transportation and Distribution (Glavtransneft, or GTN) performed a merchant
function,231 meaning it purchased oil from Soviet production associations at the
injection point at prices set by the state, and was responsible for all technical
determinations relating to transport. GTN’s responsibility was limited to the
distribution and transportation of crude, and the supply of refineries,232 while
Soyuzneftexport (a division of the Soviet Foreign Trade Association, VTO) was
responsible for crude exports to COMECON states, including negotiating export
arrangements, signing export contracts, and fulfilling Soviet government
obligations.233

While the Druzhba Pipeline was originally constructed as an inter-state


pipeline (from the Soviet Union to the COMECON states), the dissolution of the
Soviet Union resulted in the creation of additional independent states, and a
subsequent substantial restructuring of the former Soviet pipeline system. Newly
independent states through which the pipeline passes – Lithuania, Latvia, Ukraine,
and Belarus – each created political “enterprises” to manage the operation and

229
UNDP/World Bank Energy Sector Management Assistance Programme (ESMAP), Cross-Border Oil and Gas
Pipelines: Problems and Prospects, 55 (June 2003), available at
http://siteresources.worldbank.org/INTOGMC/Resources/crossborderoilandgaspipelines.pdf.
230
The COMECON states included Poland, Czechoslovakia, Latvia, Lithuania, and the then-German Democratic
Republic (GDR). UNDP/World Bank Energy Sector Management Assistance Programme (ESMAP), Cross-Border
Oil and Gas Pipelines: Problems and Prospects, 55 (June 2003), available at
http://siteresources.worldbank.org/INTOGMC/Resources/crossborderoilandgaspipelines.pdf.
231
UNDP/World Bank Energy Sector Management Assistance Programme (ESMAP), Cross-Border Oil and Gas
Pipelines: Problems and Prospects, 56-58 (June 2003), available at
http://siteresources.worldbank.org/INTOGMC/Resources/crossborderoilandgaspipelines.pdf.
232
UNDP/World Bank Energy Sector Management Assistance Programme (ESMAP), Cross-Border Oil and Gas
Pipelines: Problems and Prospects, 57 (June 2003), available at
http://siteresources.worldbank.org/INTOGMC/Resources/crossborderoilandgaspipelines.pdf.
233
UNDP/World Bank Energy Sector Management Assistance Programme (ESMAP), Cross-Border Oil and Gas
Pipelines: Problems and Prospects, 58 (June 2003), available at
http://siteresources.worldbank.org/INTOGMC/Resources/crossborderoilandgaspipelines.pdf.

58
marketing of the Druzhba pipeline and its oil.234 Within the Russian Federation,
management and ownership of the Druzhba transferred from GTN to Transneft, a
Russian state-controlled entity.235 Transneft retained control over the crude oil
structure within Russian territory, while the new states of Lithuania, Latvia,
Ukraine, and Belarus created independent carriers distinct from Transneft to
manage the transport of crude oil within their states.236 Although the pipeline
system primarily transports crude oil, a smaller refined product pipeline system
exists as well.237 Upon the breakup of the Soviet Union, Russia created, through a
legislative act, Transneftproduct, a Russian state-controlled refined product
system.238 Transneftproduct controls the refined product pipeline system,
regardless of it is located within another states.239

Transit access to the Druzhba Pipeline is governed through


intergovernmental agreements (IGAs), and tariffs are determined on a
nondiscriminatory cost basis (based upon factors including the cost of pumping,
the regulated rate of return, “taxes and disbursements to investment…, and
insurance funds”).240 Despite the introduction of newly independent state into the
operational structure of the Druzhba Pipeline system, the six parties (the five state-
run “enterprises,” and Transneft) agreed that coordination was in all of the states’
best interests, and have determined issues such as scheduling and production levels
in a coordinated fashion.241 This coordination, however, has not always been
harmonious, and disputes among the parties regarding appropriate tariff and transit
234
UNDP/World Bank Energy Sector Management Assistance Programme (ESMAP), Cross-Border Oil and Gas
Pipelines: Problems and Prospects, 62, table A2 (June 2003), available at
http://siteresources.worldbank.org/INTOGMC/Resources/crossborderoilandgaspipelines.pdf (Belarus created two
enterprises to manage the operation and marketing of the pipeline).
235
Decree of the President of the Russian Federation, No. 1403 (Nov. 17, 1992).
236
UNDP/World Bank Energy Sector Management Assistance Programme (ESMAP), Cross-Border Oil and Gas
Pipelines: Problems and Prospects, 60 (June 2003), available at
http://siteresources.worldbank.org/INTOGMC/Resources/crossborderoilandgaspipelines.pdf.
237
UNDP/World Bank Energy Sector Management Assistance Programme (ESMAP), Cross-Border Oil and Gas
Pipelines: Problems and Prospects, 60 (June 2003), available at
http://siteresources.worldbank.org/INTOGMC/Resources/crossborderoilandgaspipelines.pdf.
238
UNDP/World Bank Energy Sector Management Assistance Programme (ESMAP), Cross-Border Oil and Gas
Pipelines: Problems and Prospects, 60 (June 2003), available at
http://siteresources.worldbank.org/INTOGMC/Resources/crossborderoilandgaspipelines.pdf.
239
UNDP/World Bank Energy Sector Management Assistance Programme (ESMAP), Cross-Border Oil and Gas
Pipelines: Problems and Prospects, 60 (June 2003), available at
http://siteresources.worldbank.org/INTOGMC/Resources/crossborderoilandgaspipelines.pdf.
240
UNDP/World Bank Energy Sector Management Assistance Programme (ESMAP), Cross-Border Oil and Gas
Pipelines: Problems and Prospects, 65 (June 2003), available at
http://siteresources.worldbank.org/INTOGMC/Resources/crossborderoilandgaspipelines.pdf.
241
UNDP/World Bank Energy Sector Management Assistance Programme (ESMAP), Cross-Border Oil and Gas
Pipelines: Problems and Prospects, 66 (June 2003), available at
http://siteresources.worldbank.org/INTOGMC/Resources/crossborderoilandgaspipelines.pdf.

59
fees led to the shut down of oil flow in January 2007.242

Shipper Owned and Operated Pipelines

The Caspian Pipeline Consortium (CPC) Pipeline (Kazakhstan to Russia)

The Caspian Pipeline Consortium (CPC) Pipeline transports crude oil from
fields in northwestern Kazakhstan (the Tengiz field) 1,500 km to the Russian Black
Sea port of Novorossiysk, where it is sold on the world market.243 The consortium
is organized as a joint venture agreement made up of various public and private
entities, with Russia having the largest ownership share (24%), followed by
Kazakhstan (19%), and Chevron (15%), with the Sultanate of Oman and other
private oil companies holding the remaining ownership shares.244 As a result of an
agreement between the private companies on the one hand, and the governments of
Russia and Kazakhstan on the other, Russia and Kazakhstan agreed to guarantee
the stability of rights of way, taxation, and tariffs, to confirm the tax-exempt status
of transfer assets of the CPC with respect to value-added taxation, and to permit
currency transaction in U.S. dollars, among other things.245 The producer
companies, for their part, agreed to fund 100% of the project’s costs, including
design, construction, extraction, and transportation.246

Unique for the region, the CPC Pipeline is shipper owned and operated, as
opposed to operating as a common carrier dependent upon tariffs and transport
fees.247 The CPC demonstrates an instance where the Kazakh and Russian state
governments benefit from private investment and control of a pipeline through tax
revenues and earnings, as well as dividend on their equity interest as stakeholders
242
FACTBOX-Russia’s Druzhba Pipeline, One of the World’s Biggest, REUTERS, Jan. 9, 2007, available at
http://www.reuters.com/articlePrint?articleID=USL0943417520070109.
243
Institute on Economic Research and Policy Consulting in Ukraine German Advisory Group on Economic
Reform, International Practices in Pipeline Operations, 7 (Apr. 2004), available at
http://ierpc.org/ierpc/papers/t27_en.pdf.
244
Institute on Economic Research and Policy Consulting in Ukraine German Advisory Group on Economic
Reform, International Practices in Pipeline Operations, 7 (Apr. 2004), available at
http://ierpc.org/ierpc/papers/t27_en.pdf.
245
UNDP/World Bank Energy Sector Management Assistance Programme (ESMAP), Cross-Border Oil and Gas
Pipelines: Problems and Prospects, 98 (June 2003), available at
http://siteresources.worldbank.org/INTOGMC/Resources/crossborderoilandgaspipelines.pdf.
246
UNDP/World Bank Energy Sector Management Assistance Programme (ESMAP), Cross-Border Oil and Gas
Pipelines: Problems and Prospects, 98 (June 2003), available at
http://siteresources.worldbank.org/INTOGMC/Resources/crossborderoilandgaspipelines.pdf.
247
UNDP/World Bank Energy Sector Management Assistance Programme (ESMAP), Cross-Border Oil and Gas
Pipelines: Problems and Prospects, 105 (June 2003), available at
http://siteresources.worldbank.org/INTOGMC/Resources/crossborderoilandgaspipelines.pdf.

60
in the consortium.248

Gas Pipelines

TransMed Pipeline (Algeria to Italy via Tunisia)

The TransMed Pipeline transports natural gas from Algerian gas fields
through Tunisia to Italy. The TransMed project began in 1973 with a natural gas
transportation agreement between the governments of Italy and Algeria.249 ENI,
the Italian state-controlled energy enterprise at that time,250 entered into a
subsequent agreement with the Tunisian government, allowing ENI to build a
pipeline from the Algerian border to the Mediterranean Sea.251 Because of historic
tensions, the governments of Algeria and Tunisia did not enter into any agreement.
Rather, ENI operates TransMed’s Tunisian portion. Any issues arising from gas
transportation in Tunisian territory are matters to be resolved between the
governments of Tunisia and Italy.252

While the parties finished pipeline construction in 1981, export did not
commence through the pipeline until 1983 because of pricing scheme
disagreements between the Algerian government and ENI. The two parties
ultimately agreed that gas prices would be indexed to crude oil’s price and that the
Italian government would provide an additional subsidy based on a percentage of
current gas prices.253 Under the pricing agreement, the Tunisian government
receives a transit fee.254 ENI and the Algerian government offered to pay Tunisia
its transit fee in cash or in gas. The Tunisians chose the latter, giving the state an
interest in ensuring gas flows unobstructed through the pipeline.255

248
UNDP/World Bank Energy Sector Management Assistance Programme (ESMAP), Cross-Border Oil and Gas
Pipelines: Problems and Prospects, 104 (June 2003), available at
http://siteresources.worldbank.org/INTOGMC/Resources/crossborderoilandgaspipelines.pdf.
249
Mark Hayes, Algerian Gas to Europe: The Tansmed Pipeline and Early Spanish Gas Import Projects, 6 (May
2004), available at http://www.rice.edu/energy/publications/docs/GAS_TransmedPipeline.pdf.
250
ENI became a joint-stock corporation in 1992 after the Italian government agreed to privatize the company.
251
Mark Hayes, Algerian Gas to Europe: The Tansmed Pipeline and Early Spanish Gas Import Projects, 11 (May
2004), available at http://www.rice.edu/energy/publications/docs/GAS_TransmedPipeline.pdf.
252
Mark Hayes, Algerian Gas to Europe: The Tansmed Pipeline and Early Spanish Gas Import Projects, 11 (May
2004), available at http://www.rice.edu/energy/publications/docs/GAS_TransmedPipeline.pdf.
253
Mark Hayes, Algerian Gas to Europe: The Tansmed Pipeline and Early Spanish Gas Import Projects, 11-15
(May 2004), available at http://www.rice.edu/energy/publications/docs/GAS_TransmedPipeline.pdf.
254
Mark Hayes, Algerian Gas to Europe: The Tansmed Pipeline and Early Spanish Gas Import Projects, 11-15
(May 2004), available at http://www.rice.edu/energy/publications/docs/GAS_TransmedPipeline.pdf.
255
Mark Hayes, Algerian Gas to Europe: The Tansmed Pipeline and Early Spanish Gas Import Projects, 11-15
(May 2004), available at http://www.rice.edu/energy/publications/docs/GAS_TransmedPipeline.pdf.

61
Despite historic tensions between the governments of Algeria and Tunisia,
TransMed has never experienced a supply interruption. This is owed, in large part,
to TransMed’s alliance of all interested parties’ interests, making it more profitable
for all involved to cooperate.

62
SECURITY ARRANGEMENTS

The structure and implementation of security arrangements are among the


critical issues states confront following violent conflict or state secession. Such
security arrangements may address demobilization, disarmament, and reintegration
(DDR); integration of previously warring factions into a single national military
force; and formation of state military and defense apparatuses. While the
Comprehensive Peace Agreement, Interim National Constitution, and Interim
Constitution for Southern Sudan provide a framework for security arrangements
during the 6-year Interim Period prior to the 2011 Southern Sudan referendum, as
well as detailed provisions related to the unification or separation of the Sudan
Armed Forces and Sudan People’s Liberation Army after the referendum and
depending on the outcome, these provisions do not directly address the actual
implementation of this process.256 As such, the Government of Southern Sudan
may pursue an agreement with the Government of Sudan to rectify this
shortcoming. State practice illustrates the various frameworks other states used to
structure and implement post-conflict and post-succession security arrangements.

Security Arrangements in the Context of State Succession

Serbia and Montenegro

After the Socialist Federal Republic of Yugoslavia (SFRY)’s dissolution in


1992, Serbia and Montenegro formed the Federal Republic of Yugoslavia (FRY).
Shortly thereafter, Montenegro began to distance itself from the Serbian regime. In
2003, the State Union between Serbia and Montenegro replaced the FRY, and
Montenegrins subsequently voted for independence from Serbia in a May 2006
referendum. On June 3, 2006, the Parliament of Montenegro declared

256
The Comprehensive Peace Agreement calls for the formation of Joint Integrated Units (JIUs), which are
comprised of equal parts SAF and SPLA forces. The Comprehensive Peace Agreement envisions the JIUs as
forming the “nucleus” of a post-referendum Sudanese army, in the event of unity. Conversely, in the event of
secession, the JIUs are to be dissolved. The Comprehensive Peace Agreement ch. VI art. 4 (Government of the
Republic of Sudan and the Sudan People’s Liberation Movement/Army, 2005), available at
http://unmis.unmissions.org/Portals/UNMIS/Documents/General/cpa-en.pdf. Similarly, the Interim National
Constitution provides that, should the referendum results in unity, the JIUs will form the “nucleus of a post-
referendum army of the Sudan.” Conversely, should the referendum result in secession, the JIUs will be dissolved
and their forces reintegrated into either the Sudan Armed Forces or the Sudan People’s Liberation Army. The
Interim Constitution of Southern Sudan contains the same language as the Interim National Constitution with
regards to security provisions post-2011. See INTERIM NATIONAL CONST. OF SUDAN part 8, para. 145(1) (2005),
available at http://www.sudan-embassy.de/c_Sudan.pdf; INTERIM CONST. OF SOUTHERN SUDAN part 10, ch. 1, para.
156(2) (2005), available at http://www.chr.up.ac.za/undp/domestic/docs/c_SouthernSudan.pdf.

63
Montenegro’s independence. Serbian officials did not contest this declaration and
recognized Montenegro’s independence.

Pursuant to Article 60 of the Constitutional Charter of Serbia and


Montenegro, Serbia maintained the international legal personality of the State
Union of Serbia and Montenegro, while Montenegro became a newly independent
state. Prior to Montenegro’s independence, the Military of Serbia and Montenegro
("VSCG") acted as the Armed Forces of Serbia and Montenegro. In 2002, the
Serbo-Montenegrin Military force included approximately 74,500 soldiers.
Notably, the desire of both states – Serbia and Montenegro – to gain entrance into
NATO removed any incentive to engage militarily with each other or other
neighbors following Montenegrin independence.

Post-Referendum Security Arrangements in Montenegro

Following the referendum, Montenegro formed its own armed forces, the
Military of Montenegro. Furthermore, given that Serbia, as the continuing state,
inherited the former Serbian-Montenegrin Ministry of Defense, the Montenegrin
government had to found a Montenegrin Ministry of Defense. The Minister of
Defense was a civilian position, as provided for in the Strategy of National
Security adopted by the new Montenegrin government.257 The task of building the
military apparatus of Montenegro fell mainly to a small number of senior
Montenegrin military officers who had formerly been VSCG soldiers.258

The Military of Montenegro inherited a force of approximately 6,000 from


the VSCG and planned to reduce this number to 2,500, and abolish conscription.259
The government of Montenegro decided not to maintain a combat air force and to
reduce its naval force to act as more of a coast guard, despite the fact that
Montenegro inherited the vast majority of the combined Serbian and Montenegrin
naval fleet.

257
Vitalino Canas, Independent Montenegro: Early Assessment and Prospects for Euro-Atlantic Integration, NATO
PARLIAMENTARY A SSEMBLY (2007), available at http://www.nato-pa.int/Default.asp?SHORTCUT=1162.
258
Boro Vucinic, Montenegro, NATO and a New State’s Security, NATO REVIEW (2008), available at
http://www.nato.int/docu/review/2008/08/MONTENEGRO_STATE_SECURITY/EN/index.htm.
259
Mehmedin Tahirovic, Montenegro and the NATO Partnership for Peace Program, G EORGE C. MARSHALL
EUROPEAN CENTER FOR SECURITY STUDIES (2007), available at
https://consortium.pims.org/filestore2/download/3961/Montenegro%20and%20the%20NATO%20Partnership%20fo
r%20Peace%20Program.pdf.

64
Post-Referendum Security Arrangements in Serbia

In June 2006, following Montenegro’s independence, the Serbian National


Assembly established through decree the Serbian Armed Forces (SAF), which
includes the Ground Force, Navy, and Air Force.260 The Serbian military’s budget
stands at 2.1% of the GDP and Serbian officials have indicated that Serbia will not
halt military reforms on account of the current economic crisis.261 The SAF plans
to complete its transition to a fully professional force, thereby abolishing
conscription, by 2010 or 2011.262 There were initial estimates that the number of
army troops would be decreased to about 30,000 by 2010 from the 50,000 it
maintained in 2006.263

NATO has participated in the reform of Serbia’s defense sector. In 2007,


NATO opened a military liaison office in the Serbian Ministry of Defense.264
Additionally, the Government of Norway helped establish the Serbia-NATO
Defense Reform Group (DRG) in 2007,265 which meets every six weeks to discuss
defense reform in Serbia.266

Outcomes and Conclusions

Since separation from Serbia, Montenegrin authorities have achieved a


number of military accomplishments. Among them, Montenegrin authorities
established a National Security Strategy and a defense ministry,267 reduced military
personnel to 2,500 soldiers, doubled soldiers’ salaries,268 drafted and passed
legislation on national security strategy,269 reviewed peacekeeping missions,

260
Military of Serbia, available at http://www.absoluteastronomy.com/topics/Military_of_Serbia.
261
SETimes.com, Serbia to Continue Army Reforms Despite Economic Crisis (Apr. 15, 2009), avaiable at
http://www.setimes.com/cocoon/setimes/xhtml/en_GB/features/setimes/newsbriefs/2009/04/15/nb-04.
262
SETimes.com, Dividing Up Serbia-Montenegro’s Army: Serbia’s Perspective (Sep. 21, 2006), available at
http://www.setimes.com/cocoon/setimes/xhtml/en_GB/features/setimes/features/2006/09/21/feature-02.
263
SETimes.com, Dividing Up Serbia-Montenegro’s Army: Serbia’s Perspective (Sep. 21, 2006), available at
http://www.setimes.com/cocoon/setimes/xhtml/en_GB/features/setimes/features/2006/09/21/feature-02.
264
NATO Parliamentary Assembly, Serbia and Europe: Challenges of Integration para. 48 (2007), available at
http://www.nato-pa.int/default.Asp?SHORTCUT=1354.
265
Serbia Ministry of Defense, 11th DRG Meeting Held, Oct. 18, 2007, available at
http://www.mod.gov.rs/novi_eng.php?action=fullnews&showcomments=1&id=494.
266
NATO Parliamentary Assembly, Serbia and Europe: Challenges of Integration para. 48 (2007), available at
http://www.nato-pa.int/default.Asp?SHORTCUT=1354.
267
See The Government of Montenegro, Montenegro Ministry of Defense, available at
http://www.gov.me/eng/odbrana/.
268
World News Connection, Money Problems Hamper Military Reforms in Montenegro (Jul. 7, 2008).
269
World News Connection, Money Problems Hamper Military Reforms in Montenegro (Jul. 7, 2008).

65
partnered with the US to obtain assistance developing its military,270 and made
significant strides towards membership in the North Atlantic Treaty Organization
(NATO).271

Despite these successes, Montenegrin authorities have also encountered


problems in developing Montenegro’s military. It is difficult to recruit new
military personnel, as positions are not generally viewed as desirable.272
Furthermore, the Montenegrin military’s equipment and weapons do not meet
international and NATO standards. The Montenegrin army has not invested in
new equipment or weapons for over 20 years. However, the Montenegrin
government has already begun buying equipment and weapons sufficient to
comply with NATO’s standards.273

While Serbia inherited the Serbian-Montenegrin Ministry of Defense, the


state has not yet developed a National Security Strategy.274 Some experts attribute
the Serbian government’s slow security development to a poor delineation of
responsibilities.275 Specifically, the Serbian parliament hesitates to exercise its
legal control over security matters, and consequently, Serbian military leadership
often acts of its own accord. The Serbian government previously initiated a bid for
NATO membership. However, Kosovo’s declaration of independence and NATO
member states’ acceptance of that declaration halted the Serbian government’s
NATO membership bid.276
270
Montenegro was accepted into NATO’s Partnership for Peace program in December 2006 and entered into an
Intensified Dialog with NATO in April 2008. In July 2008, NATO created an Individual Partnership Action Plan
(IPAP). NATO assessed Montenegro’s implementation of the IPAP in early 2009. The government of Montenegro
has also established a Mission at the NATO Headquarters in Brussels and has declared joining NATO to be one of
its priorities going forward. Mehmedin Tahirovic, Montenegro and the NATO Partnership for Peace Program,
GEORGE C. MARSHALL EUROPEAN CENTER FOR SECURITY STUDIES (2007), available at
https://consortium.pims.org/filestore2/download/3961/Montenegro%20and%20the%20NATO%20Partnership%20fo
r%20Peace%20Program.pdf; NATO, NATO’s Relations with Montenegro, available at
http://www.nato.int/cps/en/natolive/topics_49736.htm.
271
Jelena Dzankic, Montenegrin NATO Membership Aspirations After the Referendum on Independence, THE
MACEDONIAN FOREIGN POLICY JOURNAL 100 (Mar. 2007), available at
www.ceeol.com/aspx/getdocument.aspx?logid=5&id=3533bdcd-b109-4ec0-b44a-85de9cdc2efe.
272
World News Connection, Money Problems Hamper Military Reforms in Montenegro (Jul. 7, 2008).
273
World News Connection, Money Problems Hamper Military Reforms in Montenegro (Jul. 7, 2008).
274
Djordje Popović, Whither the Serbian Military after Kosovan Independence?, D EFENCE ACADEMY OF THE
UNITED K INGDOM (May 2008), available at http://www.da.mod.uk/colleges/arag/document-
listings/balkan/08(18)DP.pdf/view.
275
Djordje Popović, Whither the Serbian Military after Kosovan Independence?, D EFENCE ACADEMY OF THE
UNITED K INGDOM (May 2008), available at http://www.da.mod.uk/colleges/arag/document-
listings/balkan/08(18)DP.pdf/view.
276
Djordje Popović, Whither the Serbian Military after Kosovan Independence?, D EFENCE ACADEMY OF THE
UNITED K INGDOM (May 2008), available at http://www.da.mod.uk/colleges/arag/document-
listings/balkan/08(18)DP.pdf/view.

66
Czech Republic-Slovakia

On August 27, 1992, Czech and Slovak officials agreed that the country
should split into two independent states: the Czech Republic and Slovakia. This
split was peaceful and relatively seamless due to early planning and agreement
between the parties on the dissolution. In July 2002, the Slovak Prime Minister
declared Slovakian independence and the federal parliament voted to officially
dissolve the CSFR in November 1992. On January 1, 1993, the two countries
officially separated.

Post-Partition Security Arrangements in the Czech Republic

Following Czechoslovakia’s partition into the Czech Republic and Slovakia,


both new states developed their own militaries, drawing from the existing
Czechoslovak Armed Forces. The Military Office of the President of the Republic,
the Castle Guard, and the Armed Forces of the Czech Republic (ACR) comprise
the Czech military apparatus.277 The Czech Republic joined NATO on March 12,
1999. Currently, the Czech Republic spends approximately 1.5% of its GDP on
defense.278

The ACR has gradually downsized since its split with Slovakia – ACR
forces now number approximately 30,000, down from 90,000 in 1993. In 2004,
conscription for the military was abolished.279

Post-Partition Security Arrangements in Slovakia

The Army of the Slovak Republic (ASR) was slow to develop due mainly to
Prime Minister Vladimir Mečciar’s corrupt government, which remained in power
from the split with the Czech Republic until 1998. Furthermore, the defense
ministry was based in the new capital of Bratislava while the state military

277
Jaroslav Rousar, The Czech Republic and its Professional Armed Forces, 54, MINISTRY OF DEFENCE OF THE
CZECH REPUBLIC (March 2006), available at http://www.army.cz/images/id_7001_8000/7420/crapa-en.pdf.
278
United States Department of State, Background Note: Czech Republic (Jul. 2008), available at
http://www.state.gov/p/eur/ci/ez/.
279
United States Department of State, Background Note: Czech Republic (Jul. 2008), available at
http://www.state.gov/p/eur/ci/ez/.

67
apparatus remained in Trencin. This separation led to miscommunication and
misalignment of goals within the ASR.280

However, since opposition forces took over in 1998, the Slovak


government’s focus has shifted to building democratic institutions. The new
government also amalgamated the Trencin and Bratislava entities.281 The Slovak
government created working groups in 2001 to develop comprehensive national
security documents. Slovak Republic, Force 2010, made with the goal of entering
into NATO, outlines Slovakia’s plan to establish, by 2010, a professional armed
force interoperable with NATO forces.282 The Slovak government hired a team of
American consultants to provide expertise on military reform that the Slovak
national security section currently lacks.283

Today, the ASR includes 23,350 uniformed personnel. Slovakia’s armed


forces comprise an army and an air force. In 2006, the ASR abolished compulsory
military service, having already reduced compulsory serve from six years to one
year in 2004. This was mainly done with the goal of joining NATO, which
Slovakia accomplished in March 2004.284

Outcomes and Conclusions

The governments of the Czech Republic and Slovakia managed to


efficiently, effectively, and equitably split a single military force into two separate
forces. One may attribute the Czech Republic and Slovakia’s successful
dissolution to the voluntary and non-violent nature of the break up of the
Czechoslovakian state, the two new states’ ethnic homogeneity, and the two new
states’ adoption of democracy.285 Furthermore, neither new state was the successor
state to the former Czechoslovakia. Rather, Czechoslovakia was dissolved and
then the two new states together apportioned Czechoslovakia’s assets, thus

280
M. Ulrich, Developing Mature National Security Systems in Postcommunist States: The Czech Republic and
Slovakia, 28 A RMED FORCES AND SOCIETY 3.
281
M. Ulrich, Developing Mature National Security Systems in Postcommunist States: The Czech Republic and
Slovakia, 28 A RMED FORCES AND SOCIETY 3.
282
Jeffrey A. Weber and Johan Eliasson, HANDBOOK OF MILITARY ADMINISTRATION 362 (2007).
283
M. Ulrich, Developing Mature National Security Systems in Postcommunist States: The Czech Republic and
Slovakia, 28 A RMED FORCES AND SOCIETY 3.
284
Slovakia, in ENCYCLOPEDIA BRITANNICA(2009), available at
http://www.britannica.com/EBchecked/topic/549008/Slovakia.
285
Milica Z. Bookman, War and Peace: The Divergent Breakups of Yugoslavia and Czechoslovakia, 31 JOURNAL OF
PEACE RESEARCH 175-187 (May 1994).

68
removing issues related to continuing ownership of one entity over military
operations and assets.286

It should be noted that although the division of Czechoslovakia’s security


apparatus was accomplished smoothly, neither new state has had complete success
in establishing an effective military. Although the Czech Republic enjoyed initial
success in revamping its military, the US and NATO have recently criticized the
Czech Republic for failing to meet NATO alliance commitments, particularly
following the Kosovo War.287 Slovakia has similarly struggled to modernize its
troops and to make relevant contributions to NATO. These difficulties may be
attributed to government corruption, particularly in Slovakia, the two states’ lack
of military experts in government,288 as well as pre-separation military
downsizing.289 Furthermore, in the Czech Republic, a general lack of overlap
between the political and military arenas made military reform difficult.290

Kosovo

During the Kosovo War of 1999, clashes between the Kosovo Liberation
Army (“KLA”) and forces from the Federal Republic of Yugoslavia created a
humanitarian crisis. NATO’s intervention resulted in a withdrawal of Milošević’s
troops and the establishment of a foreign presence in Kosovo. Negotiations
regarding Kosovo’s status process were ongoing until February 17, 2008, when the
Assembly of Kosovo declared Kosovo’s independence from Serbia. Many
Western nations have since recognized Kosovo as an independent state; however,
the majority of UN member states have not. The Serbian government still
considers Kosovo to be a province under its control. However, the security
arrangements associated with international engagement in the region are still
instructive when considering the emergence of an autonomous region, or
independent state, following a protracted conflict.

286
Paul Williams and Jennifer Harris, State Succession to Debts and Assets: The Modern Law and Policy, 42
HARVARD INTERNATIONAL LAW JOURNAL 355 (2001).
287
Jeffrey A. Weber and Johan Eliasson, HANDBOOK OF MILITARY ADMINISTRATION 362 (2007).
288
M. Ulrich, Developing Mature National Security Systems in Postcommunist States: The Czech Republic and
Slovakia, 28 A RMED FORCES AND SOCIETY 3, 408.
289
Jeffrey A. Weber and Johan Eliasson, HANDBOOK OF MILITARY ADMINISTRATION 362 (2007).
290
M. Ulrich, Developing Mature National Security Systems in Postcommunist States: The Czech Republic and
Slovakia, 28 A RMED FORCES AND SOCIETY 3.

69
Post-Conflict Security Arrangements

UN Security Council Resolution 1244 called for KLA demilitarization and


placed Kosovo under a transitional UN administration (“UNMIK”). Prior to
Kosovar independence, UNMIK authorized the Kosovo Force (KFOR), a NATO-
led peacekeeping force, to maintain stability in the region following the Kosovo
War. KFOR forces numbered approximately 15,000 in 2008. In June 1999,
KFOR entered into the Military Technical Agreement with the governments of
Yugoslavia and Serbia.291 This agreement required Yugoslavia and Serbia to
remove any forces from Kosovo’s territory in phases, and keep their forces out of
Kosovo’s territory unless authorized by KFOR.292 The predominately Kosovar
Kosovo Police similarly operated under UNMIK’s direction.293 In September of
1999, upon completion of the KLA demilitarization process, UN Special
Representative Bernard Kouchner signed Regulation 1999/8, creating the Kosovo
Protection Corps (KPC), a civilian emergency services organization to succeed the
KLA.294 The KPC’s duties complimented KFOR’s work and included crisis
response, explosives disposal, and civil protection.295

When the Assembly of Kosovo declared independence on February 17,


2008, it authorized the new Kosovo Security Force (KSF) to eventually replace the
KPC.296 The dissolution of the KPC would be concurrent with the development of
the KSF.297 A program funded by the NATO Trust Fund and implemented by local
NGOs would reintegrate into the community KPC members not recruited to join
the KSF.298 In January 2009, Kosovar officials announced the KSF’s launch. The
KSF will be a 2,500-strong “lightly armed, professional and multiethnic force

291
Military Technical Agreement (KFOR, Government of the Federal Republic of Yugoslavia, Government of the
Republic of Serbia, 1999), available at http://www.nato.int/KFOR/docu/docs/pdf/mta.pdf.
292
Military Technical Agreement Art. I(4) (KFOR, Government of the Federal Republic of Yugoslavia, Government
of the Republic of Serbia, 1999), available at http://www.nato.int/KFOR/docu/docs/pdf/mta.pdf.
293
International Crisis Group, Kosovo’s Fragile Transition (Sept. 25, 2008), available at
www.crisisgroup.org/home/index.cfm?id=5695&1=1.
294
Special Representative of the Secretary-General, On the Establishment of the Kosovo Protection Corps,
UNMIK/REG/1999/8 (Sept. 20, 1999), available at http://www.unmikonline.org/regulations/1999/re99_08.pdf.
295
Special Representative of the Secretary-General, On the Establishment of the Kosovo Protection Corps,
UNMIK/REG/1999/8, 1.1 (Sept. 20, 1999), available at http://www.unmikonline.org/regulations/1999/re99_08.pdf.
296
KOSOVO CONST. art. 126 (2008), available at
http://www.kushtetutakosoves.info/repository/docs/Constitution.of.the.Republic.of.Kosovo.pdf.
297
NATO Kosovo Force, KFOR Brochure, 8, available at
http://www.nato.int/KFOR/docu/about/brochure/brochure.pdf.
298
NATO Kosovo Force, KFOR Brochure, 8, available at
http://www.nato.int/KFOR/docu/about/brochure/brochure.pdf.

70
operating under civilian control and KFOR’s monitoring.”299 NATO has
committed to overseeing the KSF’s development.300 NATO stressed that the KSF
is to be, at least at the outset, a lightly armed force appropriate for only certain
tasks, such as crisis response and civilian protection.

On September 15, 2009, NATO announced that KSF had achieved initial
operational capability.301 Between January and September 2009, KFOR assisted
KSF in recruiting, training, and equipping the force in core civilian protection areas
– explosive ordnance disposal, firefighting, hazardous material handling, and
search and rescue.302 KFOR will continue to work with KSF for the next two to
five years, helping to prepare KSF to reach full operational capability.303

Outcomes and Conclusions

Considering the KSF is so new and still forming, there is not a great deal of
evidence of its successes or weaknesses. The KSF continues to operate under and
rely on KFOR; however, KFOR has begun to reduce NATO troops in Kosovo.304
Some argue NATO’s partial withdrawal is premature, given that the KSF is not
independently functional and the security situation in Kosovo is not yet stable.
Some contend that the KSF’s prospects for success hinge in large part on whether
the force will succeed in creating a professional army representative of Kosovo’s
Albanian and Serbian populations.305 Multiethnic integration may prove extremely
difficult considering the tension between ethnic Albanians and the Serb minority
and the fact that most KSF members were former KLA members.

299
Southeast European Times, Kosovo Security Force to Begin Work Within Days (Jan. 15, 2009), available at
www.globalpolicy.org/security/issues/kosovo1/2009/0115begin.htm.
300
The BBC, Kosovo’s Security Force Launched (Jan. 21, 2009), available at http://News.bbc.co.uk/go/pr/fr/-
/2/hi/europe/7841789.stm.
301
NATO Press Release, NATO Declares Initial Operational Capability for the Kosovo Security Force (Sep. 15,
2009), available at http://www.nato.int/kfor/docu/pr/2009/09/pr090915b.htm.
302
NATO Press Release, NATO Declares Initial Operational Capability for the Kosovo Security Force (Sep. 15,
2009), available at http://www.nato.int/kfor/docu/pr/2009/09/pr090915b.htm.
303
NATO Press Release, NATO Declares Initial Operational Capability for the Kosovo Security Force (Sep. 15,
2009), available at http://www.nato.int/kfor/docu/pr/2009/09/pr090915b.htm.
304
Tanjug, Gallach: Reduction of KFOR Troops Will Not Affect EULEX (Mar. 27, 2009), available at
http://www.emportal.rs/en/news/serbia/83626.html.
305
International Crisis Group, Kosovo’s Fragile Transition (Sept. 25, 2008), available at
www.crisisgroup.org/home/index.cfm?id=5695&1=1.

71
INTER-STATE TRANSBOUNDARY POPULATION MOVEMENT

Along and across the internal north-south border of Sudan – the final
definition of which is pending before the Technical ad-hoc Border Committee –
numerous tribal groups seasonally move with the dry and wet seasons of Sudan as
they seek water and pasture for their animals and other livelihood activities.
Should Southern Sudan secede in 2011, this internal border will become an
international border, which will likely necessitate the Government of Sudan and
Government of Southern Sudan create through agreement mechanisms to preserve
traditional rights to graze and move through the border area.

Inter-State Grazing Agreements State Practice

Existing inter-state grazing agreements from Africa and the Middle East
indicate that states generally include inter-state grazing agreements in international
border agreements. Inter-state grazing agreements typically define a shared
grazing zone, usually straddling the parties’ mutual border, and enumerate
particulars regarding: the zone’s collective use and management; health and
security concerns; the residency of those who migrate; the need to move with
passports, visas, or other identification documents; the imposition of taxes and
duties, if any; dispute resolution mechanisms; and the law that is applicable—
including the customary laws of the peoples concerned.

Kenya-Ethiopia

An agreement between Kenya and Ethiopia to address cross-border grazing


rights exemplifies states’ use of well-defined trans-boundary grazing and watering
regions to preserve migratory populations’ access to water necessary for their
stock. In 1970, the Republic of Kenya and the Empire of Ethiopia concluded a
treaty defining and demarcating the Kenyan-Ethiopian border.306 The treaty
resolved the two states’ dispute over the Qadaduma and Godoma wells, two
watering and grazing areas along the Kenyan-Ethiopian border.307 The treaty
awarded Qadaduma wells to Ethiopia and the Godoma wells to Kenya.

306
Treaty Respecting the Boundary between the Two Countries (Kenya, Ethiopia, Jun. 9, 1970), available at
http://untreaty.un.org/unts/60001_120000/25/5/00048235.pdf.
307
Wafula Okumu, Migingo Dispute: Replace Politicians with Experts, THE EAST A FRICAN (Apr. 11, 2009),
available at http://www.theeastafrican.co.ke/news/-/2558/559472/-/item/3/-/fcwevw/-/index.html.

72
The governments of Kenya and Ethiopia further concluded a separate
Protocol Relating to the Trans-Frontier Watering and Grazing Rights (the
“Protocol”). The Protocol, annexed to the boundary treaty, addresses trans-frontier
watering and grazing rights at the Qadaduma and Godoma wells. The Protocol
grants Kenyan nationals the right to cross the Ethiopian border to water and graze
their stock at Qadaduma, and grants Ethiopian nationals the similar right to cross
the Kenyan border with respect to Godoma.308

The Protocol uses lines the 1963-64 Kenya-Ethiopia Boundary Commission


cut through vegetation to demarcate the limits of the trans-frontier grazing and
watering areas.309 The Protocol requires the Kenyan and Ethiopian governments to
maintain their respective water and grazing areas and ensure that the areas’ limits
are, at all times, “clearly visible and recognizable.”310 Under the Protocol, from
“time to time” each state can send a duly authorized representative, with prior
notice to the other, to inspect the line limiting the grazing and watering areas in the
territory of the other state.311 The parties must renew the Protocol every five years
until the parties are able to provide alternative watering wells near Qadaduma and
Godoma so as to dispense with the need for cross-border grazing.312

Commentators point to the Kenyan-Ethiopian boundary agreement’s


Protocol as a model for trans-boundary water and grazing dispute resolution.313
However, the threat Somalia posed to both Kenya and Ethiopia’s border security at
the time the two states concluded the boundary agreement and Protocol might have
accounted for the two states’ willingness to compromise on an otherwise
contentious issue. The Protocol, nonetheless, is an example of how a well-defined
agreement can help to preserve nomadic populations’ access to resources.

308
Treaty Respecting the Boundary between the Two Countries Annex I, Art. I (Kenya, Ethiopia, Jun. 9, 1970),
available at http://untreaty.un.org/unts/60001_120000/25/5/00048235.pdf.
309
Treaty Respecting the Boundary between the Two Countries Annex I, Art. II (Kenya, Ethiopia, Jun. 9, 1970),
available at http://untreaty.un.org/unts/60001_120000/25/5/00048235.pdf.
310
Treaty Respecting the Boundary between the Two Countries Annex I, Art. III(2) (Kenya, Ethiopia, Jun. 9, 1970),
available at http://untreaty.un.org/unts/60001_120000/25/5/00048235.pdf.
311
Treaty Respecting the Boundary between the Two Countries Annex I, Art. III(3) (Kenya, Ethiopia, Jun. 9, 1970),
available at http://untreaty.un.org/unts/60001_120000/25/5/00048235.pdf.
312
Treaty Respecting the Boundary between the Two Countries Annex I, Art. V (Kenya, Ethiopia, Jun. 9, 1970),
available at http://untreaty.un.org/unts/60001_120000/25/5/00048235.pdf.
313
Wafula Okumu, Migingo Dispute: Replace Politicians with Experts, THE EAST A FRICAN (Apr. 11, 2009),
available at http://www.theeastafrican.co.ke/news/-/2558/559472/-/item/3/-/fcwevw/-/index.html.

73
Saudi Arabia-Yemen

The Saudi Arabia-Yemen agreement exemplifies how states can integrate a


number of different issues related to cross border movements – including in this
case security and resource management – into international grazing rights
agreements.

In June 2000, the International Border Treaty between the Republic of


Yemen and the Kingdom of Saudi Arabia partitioned the Saudi-Yemeni border into
three “parts.”314 The agreement’s Appendix 4 provides for pastoral rights along the
border’s second part.315 Appendix 4 creates a pastoral area extending twenty
kilometers out from both sides of the Saudi-Yemeni border.316 Saudi and Yemeni
shepherds are not subject to residency, passport, tax, or duty regulations while
moving within the pastoral area,317 but Appendix 4 does require the parties to issue
transit cards to shepherds crossing the international border within the pastoral
area.318 Furthermore, Saudi and Yemeni officials may regulate the number of
vehicles with which shepherds cross the border, as well as the number and type of
firearms shepherds carry into the pastoral area.319 Officials may also take steps to
prevent the spread of infectious disease among animals crossing through the
pastoral area.320

Appendix 4 further prohibits the parties from deploying armed forces within
the pastoral area.321 The parties may, however, conduct security patrols, “with
customary weapons,” within the pastoral area.322 Should the parties discover
natural resource wealth within the pastoral area, Appendix 4 provides that the two

314
International Border Treaty between the Republic of Yemen and the Kingdom of Saudi Arabia (Yemen, Saudi
Arabia, Jun. 12, 2000), available at http://www.al-bab.com/yemen/pol/int5.htm.
315
International Border Treaty between the Republic of Yemen and the Kingdom of Saudi Arabia Appendix 4
(Yemen, Saudi Arabia, Jun. 12, 2000), available at http://www.albab.com/yemen/pol/int5.htm.
316
International Border Treaty between the Republic of Yemen and the Kingdom of Saudi Arabia Appendix 4(i)
(Yemen, Saudi Arabia, Jun. 12, 2000), available at http://www.albab.com/yemen/pol/int5.htm.
317
International Border Treaty between the Republic of Yemen and the Kingdom of Saudi Arabia Appendix 4(ii)
(Yemen, Saudi Arabia, Jun. 12, 2000), available at http://www.albab.com/yemen/pol/int5.htm.
318
International Border Treaty between the Republic of Yemen and the Kingdom of Saudi Arabia Appendix 4(ii)
(Yemen, Saudi Arabia, Jun. 12, 2000), available at http://www.albab.com/yemen/pol/int5.htm.
319
International Border Treaty between the Republic of Yemen and the Kingdom of Saudi Arabia Appendix 4(iii)
(Yemen, Saudi Arabia, Jun. 12, 2000), available at http://www.albab.com/yemen/pol/int5.htm.
320
International Border Treaty between the Republic of Yemen and the Kingdom of Saudi Arabia Appendix 4(iv)
(Yemen, Saudi Arabia, Jun. 12, 2000), available at http://www.albab.com/yemen/pol/int5.htm.
321
International Border Treaty between the Republic of Yemen and the Kingdom of Saudi Arabia Appendix 4(v)
(Yemen, Saudi Arabia, Jun. 12, 2000), available at http://www.albab.com/yemen/pol/int5.htm.
322
International Border Treaty between the Republic of Yemen and the Kingdom of Saudi Arabia Appendix 4(v)
(Yemen, Saudi Arabia, Jun. 12, 2000), available at http://www.albab.com/yemen/pol/int5.htm.

74
parties must negotiate an additional agreement for the joint exploitation of that
wealth.323

The approach to trans-boundary grazing rights taken by the governments of


Saudi Arabia and Yemen exemplifies how states address these rights in
international boundary agreements. The Saudi Arabia-Yemen state practice
example further demonstrates how states may incorporate issues related to the
protecting affected livelihoods (preventing infectious diseases) and security
arrangements (regulation of military deployments in the border region), and natural
resource management (the provision for an additional agreement for joint natural
resource exploitation) into grazing agreements.

Algeria (France) – Libya

The governments of France and Libya entered into the Treaty of Friendship
and Good-Neighbourliness in 1955.324 An Annex to the Convention of Good-
Neighbourliness provides movement rights to “tribal nomads” who traditionally
migrate across the border between Algeria and Libya.325 The Convention provides
that the states will establish a special border area for use by tribal nomads.326
Tribal nomads who wish to cross between Algeria and Libya are required to obtain
a “transhumance permit.” The permit provides for a maximum period of nine
months in which the permit holder can freely cross the border within a designated
area for the purposes of finding pasture and without having to pay any border taxes
or duties, including those levied on grazing and watering.327

The Treaty also stipulated that those traveling across the border on a
transhumance permit are subject to the laws and regulations of the state in which

323
International Border Treaty between the Republic of Yemen and the Kingdom of Saudi Arabia Appendix 4(vi)
(Yemen, Saudi Arabia, Jun. 12, 2000), available at http://www.albab.com/yemen/pol/int5.htm.
324
Treaty of Friendship and Good-Neighbourliness (France, Libya, 1955), available at
http://untreaty.un.org/unts/120001_144071/23/6/00019206.pdf.
325
Convention of Good-Neighbourliness art. 2, annexed to Treaty of Friendship and Good-Neighbourliness (France,
Libya, 1955), available at http://untreaty.un.org/unts/120001_144071/23/6/00019206.pdf.
326
Convention of Good-Neighbourliness art. 3, annexed to Treaty of Friendship and Good-Neighbourliness
(France, Libya, 1955), available at http://untreaty.un.org/unts/120001_144071/23/6/00019206.pdf (“[O]n either
side of that border [between Algeria and Libya], an open zone shall be established for all the nomads…who hold
transhumance permits.” The Convention demarcated the “open zone” boundary lines by naming villages or
landmarks through which the boundary line would be drawn.)
327
Convention of Good-Neighbourliness arts. 5-6, annexed to Treaty of Friendship and Good-Neighbourliness
(France, Libya, 1955), available at http://untreaty.un.org/unts/120001_144071/23/6/00019206.pdf.

75
they are currently located.328 If a dispute arises over the implementation of the
Convention provisions, it will be submitted to a special arbitral commission
comprised of representatives from both France and Libya.329

Inter-State Cross-Border Movement Agreements State Practice

Inter-state agreements addressing cross-border movement are particularly


important in regions where international borders divide communities. Citizens of
one state may need to cross an inter-state border to adhere to traditional practices
(other than grazing) or for economic purposes. Border communities can be located
far from major cities in their respective state, and border crossing may be vital to
accessing goods and services. In some situations, inter-state agreements must be
made to accommodate the level of infrastructure available to the border
communities, such as access to permanent roads or transportation.

Inter-state agreements addressing cross-border movement vary widely in


level of detail, as well as in what specific issue or issues on which the agreements
focus. Most inter-state cross-border movement agreements establish a type of
documentation that the government will provide to the benefited class of people,
such as a border or identification card that allows for easier passage across the
border. Some agreements define border areas in which free movement is allowed,
while other agreements provide that the allowed cross-border movement areas will
be defined individually. Many of the agreements determine the length of time an
individual is allowed to stay in the other state before he must cross back into his
home state.

Agreements that Address Traditional Cross-Border Movement

Indonesia – Papua New Guinea

Indonesia is an island state in the Pacific Ocean. One of Indonesia’s larger


island territories is shared with the state of Papua New Guinea.330 In 1993, the
governments of Indonesia and Papua New Guinea signed the Special
Arrangements for Traditional and Customary Border Crossings (“Special
328
Convention of Good-Neighbourliness art. 19, annexed to Treaty of Friendship and Good-Neighbourliness
(France, Libya, 1955), available at http://untreaty.un.org/unts/120001_144071/23/6/00019206.pdf.
329
Convention of Good-Neighbourliness art. 21, annexed to Treaty of Friendship and Good-Neighbourliness
(France, Libya, 1955), available at http://untreaty.un.org/unts/120001_144071/23/6/00019206.pdf.
330
CIA World Factbook, Indonesia (last updated Sep. 11, 2009), available at
https://www.cia.gov/library/publications/the-world-factbook/geos/id.html.

76
Arrangements”) to govern traditional and customary border crossings between the
two states.331 This new arrangement followed similar agreements that the
government of Indonesia signed in 1973 with the government of Australia (on
behalf of Papua New Guinea),332 and in 1984 with the Government of Papua New
Guinea.333

The purpose of the 1993 Special Arrangements is to permit border area


residents to freely cross, “for traditional and customary purposes,” the border
between the territories of the two states.334 A “border resident” is limited to
persons who have residential, traditional, or customary rights within the Border
Area by means of birth or marriage, and explicitly excludes persons who gained
rights to use the land by means of national laws or other non-traditional
processes.335 Additionally, the special border-crossing arrangements specifically
excludes persons who are not Border Area residents, persons who hold Border
Crossing Cards but intend to travel beyond the Border Area, and persons who hold
Border Crossing Cards who intend to cross for non-traditional or non-customary
reasons.336 The Border Area is defined by a demarcation mutually agreed upon by
the two governments.337

A person crossing the border is required to carry a Border Crossing Card,


which will be accepted in lieu of a passport, visa, and vaccination certificate.338
The person’s home government issues the Border Crossing Cards, without any

331
Specials Arrangements for Traditional and Customary Border Crossings (Indonesia, Papua New Guinea, 1993),
available at http://datalink.indonesia-ottawa.org/docs/pdf/k4.pdf.
332
Agreement Concerning Administrative Border Arrangements as to the Border Between Papua New Guinea and
Indonesia, (Australia, Indonesia, 1973), available at http://untreaty.un.org/unts/1_60000/28/9/00054420.pdf.
333
Basic Agreement on Border Arrangements (Indonesia, Papua New Guinea, 1984), available at
http://untreaty.un.org/unts/60001_120000/22/15/00042720.pdf.
334
Specials Arrangements for Traditional and Customary Border Crossings para. 2 (Indonesia, Papua New Guinea,
1993), available at http://datalink.indonesia-ottawa.org/docs/pdf/k4.pdf (“The Parties hereto will administer a
system of border crossing whereby nationals of the two countries who are domiciled in the respective Border Areas
may freely enter into and travel within the corresponding part of the Border Area of the other, solely for traditional
and customary purposes as defined, provided that they are bona fide holders of Border Crossing Cards which will be
issued by the Parties hereto in accordance with the provisions of these arrangements.”).
335
Specials Arrangements for Traditional and Customary Border Crossings para. 1 (Indonesia, Papua New Guinea,
1993), available at http://datalink.indonesia-ottawa.org/docs/pdf/k4.pdf.
336
Specials Arrangements for Traditional and Customary Border Crossings para. 4.1 (Indonesia, Papua New
Guinea, 1993), available at http://datalink.indonesia-ottawa.org/docs/pdf/k4.pdf.
337
Basic Agreement on Border Arrangements art. 1 (Indonesia, Papua New Guinea, 1984), available at
http://untreaty.un.org/unts/60001_120000/22/15/00042720.pdf.
338
Specials Arrangements for Traditional and Customary Border Crossings paras. 2, 3, 4.3 (Indonesia, Papua New
Guinea, 1993), available at http://datalink.indonesia-ottawa.org/docs/pdf/k4.pdf.

77
fee.339 To obtain a Border Crossing Card, a person must show that (1) he is a
citizen of either Indonesia or Papua New Guinea, (2) he is at least eighteen years of
age, (3) he is a Border Resident, as defined by the Special Arrangements, and
resided in the Border Area, (4) the border crossing is solely for traditional and
customary purposes, and (5) he is not prohibited from crossing the border.340
Additionally, the leaders of the person’s home village and the leaders of the village
where the person claims traditional rights will verify the applicant’s traditional
rights and customary cross-border practices.341

The Special Arrangements also permit holders of Border Crossing Cards to


engage in traditional and customary border trade within the Border Area without
paying any duties or taxes on the goods.342 The Border Crossing Card allows each
cardholder to transport goods that do not exceed US$ 300.00 in value each
month.343 The governments of Indonesia and Papua New Guinea reserve the right
to specify prohibited goods, and cross-border trade is also subject to quarantine.344

Traditional border crossers are permitted to stay in the corresponding state’s


Border Area for up to thirty days, and may negotiate with the border officer of the
corresponding government to extend his stay.345 Border officers are to resolve
disputes over extensions or other border-crossing processes and, if needed, a Joint

339
Specials Arrangements for Traditional and Customary Border Crossings para. 3.1 (Indonesia, Papua New
Guinea, 1993), available at http://datalink.indonesia-ottawa.org/docs/pdf/k4.pdf (“A Border Crossing Card will be
issued free of charge upon application at the Designated Border Station administering the applicant’s home area by
the Border Administration Officers or the border Officers of the Parties hereto….”).
340
Specials Arrangements for Traditional and Customary Border Crossings para. 3.1 (Indonesia, Papua New
Guinea, 1993), available at http://datalink.indonesia-ottawa.org/docs/pdf/k4.pdf.
341
Specials Arrangements for Traditional and Customary Border Crossings para. 3.2 (Indonesia, Papua New
Guinea, 1993), available at http://datalink.indonesia-ottawa.org/docs/pdf/k4.pdf (“Subject to [adjudication methods]
details of each Border Crossing Card will be checked with appropriate leaders of the applicants village and
crosschecked by appropriate leaders of the corresponding village in whose lands wafers traditional rights are
claimed.”).
342
Specials Arrangements for Traditional and Customary Border Crossings paras. 11.1-11.6 (Indonesia, Papua New
Guinea, 1993), available at http://datalink.indonesia-ottawa.org/docs/pdf/k4.pdf (“Border Residents in possession of
Border Crossing Cards will be permitted to engage in traditional and customary border trade within the respective
border Areas….traditional goods and goods specified in Annex A [to the Special Arrangements]…will not be
subject to any duty or tax under the laws and regulations of the Parties hereto….”).
343
Specials Arrangements for Traditional and Customary Border Crossings para. 11.3 (Indonesia, Papua New
Guinea, 1993), available at http://datalink.indonesia-ottawa.org/docs/pdf/k4.pdf.
344
Specials Arrangements for Traditional and Customary Border Crossings paras. 11.2, 11.4 (Indonesia, Papua
New Guinea, 1993), available at http://datalink.indonesia-ottawa.org/docs/pdf/k4.pdf.
345
Specials Arrangements for Traditional and Customary Border Crossings para. 6.2 (Indonesia, Papua New
Guinea, 1993), available at http://datalink.indonesia-ottawa.org/docs/pdf/k4.pdf.

78
Border Committee consisting of officials from both governments will step in to
adjudicate.346

Cross-Border Agreements Benefiting Area Residents

Ukraine – Poland

In 2008, the governments of Ukraine and Poland signed the Agreement


Between the Government of the Republic of Poland and the Cabinet of Ministers of
Ukraine on the Rules of Local Border Traffic (“Agreement”) to develop Polish-
Ukrainian relations and cooperation.347 The Agreement provides for a border area,
extending between thirty and fifty kilometers from the common border, in which
special border crossing provisions apply.348 Both the government of Ukraine and
the government of Poland may issue local border traffic permits to their citizens
who are designated as “border residents” – persons living within the established
border area for at least three years.349 The permit allows local residents to cross
through special border points designated for local traffic, and stay within the
border area of the other state for up to sixty days at a time.350 Permit holders are
also required to hold valid travel documents and medical insurance, and are
obliged to abide by the laws and regulations of the state in which they are
present.351 Permits remain valid for two years upon a first issuance, and then are
valid in five-year increments following renewal.352

346
Specials Arrangements for Traditional and Customary Border Crossings paras. 13.1-13.3 (Indonesia, Papua New
Guinea, 1993), available at http://datalink.indonesia-ottawa.org/docs/pdf/k4.pdf.
347
Agreement Between the Government of the Republic of Poland and the Cabinet of Ministers of Ukraine on the
Rules of Local Border Traffic (Poland, Ukraine, 2008), available at
http://www.msz.gov.pl/bpt/documents/15043.pdf.
348
Agreement Between the Government of the Republic of Poland and the Cabinet of Ministers of Ukraine on the
Rules of Local Border Traffic art. 2 (Poland, Ukraine, 2008), available at
http://www.msz.gov.pl/bpt/documents/15043.pdf.
349
Agreement Between the Government of the Republic of Poland and the Cabinet of Ministers of Ukraine on the
Rules of Local Border Traffic arts. 2, 4-5 (Poland, Ukraine, 2008), available at
http://www.msz.gov.pl/bpt/documents/15043.pdf.
350
Agreement Between the Government of the Republic of Poland and the Cabinet of Ministers of Ukraine on the
Rules of Local Border Traffic arts. 4, 12 (Poland, Ukraine, 2008), available at
http://www.msz.gov.pl/bpt/documents/15043.pdf.
351
Agreement Between the Government of the Republic of Poland and the Cabinet of Ministers of Ukraine on the
Rules of Local Border Traffic arts. 5, 10, 13 (Poland, Ukraine, 2008), available at
http://www.msz.gov.pl/bpt/documents/15043.pdf.
352
Agreement Between the Government of the Republic of Poland and the Cabinet of Ministers of Ukraine on the
Rules of Local Border Traffic art. 5 (Poland, Ukraine, 2008), available at
http://www.msz.gov.pl/bpt/documents/15043.pdf.

79
Tunisia – Algeria

The governments of Tunisia and Algeria signed the Frontier Convention


(“Convention”) in 1963 in order to “meet the wishes of the border populations.”353
The Convention allows border area residents to transport goods across the border
without paying duties or taxes.354 Border residents, for the purpose of the
Convention, include persons who reside within fifteen kilometers of the border and
persons whose work regularly requires border-crossing.355 Additionally,
designated border residents must fall into one of three categories: (1) owners of
land on or across the border, and the landowner’s employees, (2) holders of valid
grazing or range permits, and (3) regular users of markets, including farmers and
breeders, but excluding tradesmen.356

Border residents are required to present a border card, issued by the


resident’s respective government, upon crossing.357 The border card provides
information regarding identity, as well as specifies the permitted category to which
the person belongs, the area to which the holder must travel for work, the area for
which the border card is valid, and which border customs office the card holder is
permitted to cross through.358 The Convention requires a border cardholder to
enter and exit through the same border customs office.359 The border card is valid
for two years, and the governments of both states reserve the right to issue
emergency single-trip border passes as well.360

353
Frontier Convention preamble (Algeria, Tunisia, 1963), available at
http://untreaty.un.org/unts/120001_144071/23/8/00019359.pdf.
354
Frontier Convention art. 2 (Algeria, Tunisia, 1963), available at
http://untreaty.un.org/unts/120001_144071/23/8/00019359.pdf (“Border residents, as defined above, may transport
from one country to the other, free of customs duty or any fee levied upon entry or exit, save health inspection fees,
where applicable: Their livestock; The young animals and products of the herds; Agricultural implements for the
cultivation of their land, including agricultural tractors; Their carts; Their fertilizer; Their seeds, The crops grown on
their land.”).
355
Frontier Convention art. 1 (Algeria, Tunisia, 1963), available at
http://untreaty.un.org/unts/120001_144071/23/8/00019359.pdf.
356
Frontier Convention art. 1 (Algeria, Tunisia, 1963), available at
http://untreaty.un.org/unts/120001_144071/23/8/00019359.pdf.
357
Frontier Convention arts. 4, 5 (Algeria, Tunisia, 1963), available at
http://untreaty.un.org/unts/120001_144071/23/8/00019359.pdf.
358
The Convention is not entirely clear what “the area for which [the border card] is valid” means. Frontier
Convention art. 7 (Algeria, Tunisia, 1963), available at
http://untreaty.un.org/unts/120001_144071/23/8/00019359.pdf.
359
Frontier Convention art. 4 (Algeria, Tunisia, 1963), available at
http://untreaty.un.org/unts/120001_144071/23/8/00019359.pdf.
360
Frontier Convention arts. 6, 11 (Algeria, Tunisia, 1963), available at
http://untreaty.un.org/unts/120001_144071/23/8/00019359.pdf.

80
Austria – Germany

Prior to the Schengen Agreement,361 which now governs border-crossing


mechanisms between the member states of the European Union, the governments
of Austria and Germany bilaterally entered into the Agreement Concerning Local
Border Traffic and Excursion Traffic (the “Agreement”).362 The Agreement
defined a “frontier zone,” or border area, in which the Agreement would facilitate
cross-border movement.363 The governments of Austria and Germany issued a
“frontier pass” to (1) citizens who lived in the frontier zone, and (2) non-citizens
who had lived in the border area for at least six months and were entitled to remain
a resident of the state.364 Both states were required to approve passes for non-
citizens.365 The government could also issue a frontier pass to a person who was
crossing the border for the purpose of farming, hunting, or fishing, or was
employed in the frontier zone of the other state, regardless of how long the person
had lived in the frontier zone.366

The frontier pass gave its holder the ability to cross the border an unlimited
number of times, and permitted a stay in the other state’s frontier zone for up to
seven days with each crossing.367 However, border-crossings were limited to
certain crossing points and certain hours of the day.368 The pass holder’s
government was able to make exceptions to these limitations on a case-by-case
basis with the approval of the corresponding state’s government.369 The respective
361
Agreement Between the Governments of the States of the Benelux Economic Union, the Federal Republic of
Germany and the French Republic on the Gradual Abolition of Checks at Their Common Borders (Belgium, France,
Germany, Luxembourg, Netherlands, 1985), in The Schengen Acquis, available at http://eur-
lex.europa.eu/LexUriServ/site/en/oj/2000/l_239/l_23920000922en00010473.pdf. See also Austria Citizen’s Service
Bureau, Austria in Brief, 48-49 (2007), available at http://www.bka.gv.at/DocView.axd?CobId=27026. (Germany
was one of the original signatories to the Schengen Agreement in 1985 and Austria signed the Schengen Agreement
in 1995. The Schengen Agreement did not enter into force until 1995.)
362
Agreement Concerning Local Border Traffic and Excursion Traffic (Austria, Germany, 1986), available at
http://untreaty.un.org/unts/60001_120000/21/6/00040281.pdf.
363
Agreement Concerning Local Border Traffic and Excursion Traffic art. 1 (Austria, Germany, 1986), available at
http://untreaty.un.org/unts/60001_120000/21/6/00040281.pdf.
364
Agreement Concerning Local Border Traffic and Excursion Traffic arts. 2(2), 3(1) (Austria, Germany, 1986),
available at http://untreaty.un.org/unts/60001_120000/21/6/00040281.pdf.
365
Agreement Concerning Local Border Traffic and Excursion Traffic art. 2(3) (Austria, Germany, 1986), available
at http://untreaty.un.org/unts/60001_120000/21/6/00040281.pdf.
366
Agreement Concerning Local Border Traffic and Excursion Traffic art. 3 (Austria, Germany, 1986), available at
http://untreaty.un.org/unts/60001_120000/21/6/00040281.pdf.
367
Agreement Concerning Local Border Traffic and Excursion Traffic art. 2(1) (Austria, Germany, 1986), available
at http://untreaty.un.org/unts/60001_120000/21/6/00040281.pdf.
368
Agreement Concerning Local Border Traffic and Excursion Traffic art. 2(1) (Austria, Germany, 1986), available
at http://untreaty.un.org/unts/60001_120000/21/6/00040281.pdf.
369
Agreement Concerning Local Border Traffic and Excursion Traffic art. 4(1) (Austria, Germany, 1986), available
at http://untreaty.un.org/unts/60001_120000/21/6/00040281.pdf.

81
governments permitted exceptions only when the pass holder had a “legitimate
reason.”370 The Agreement also had special provisions for owners of farming or
forestry land on or near the border371 and for times of emergency.372

For citizens, the government issued frontier passes valid for up to five
373
years. Additionally, the government could extend the pass up to a total of ten
years.374 For non-citizens, the government issued frontier passes valid for up to
five years, or valid for the length of time of the individual’s residence permit,
whichever length of time was shorter.375

Cross-Border Movement Agreements Addressing Specific Needs

Estonia – Latvia

The governments of Estonia and Latvia signed an agreement regarding the


border crossing points between the two states (the “Agreement”) in 1996.376 The
Agreement establishes the points at which persons could cross the border, as well
as the points where certain goods may be transported across the border.377

370
Agreement Concerning Local Border Traffic and Excursion Traffic art. 4(1) (Austria, Germany, 1986), available
at http://untreaty.un.org/unts/60001_120000/21/6/00040281.pdf.
371
Agreement Concerning Local Border Traffic and Excursion Traffic art. 5 (Austria, Germany, 1986), available at
http://untreaty.un.org/unts/60001_120000/21/6/00040281.pdf (“Owners of farming or forestry plots which straddle
the frontier or lie close to it, as well as persons entitled to work such plots, members of their families and employees,
provided that they carry official photographic identification, be permitted to cross the frontier on such plots or on the
direct way thereto in order to work them. They may not, however, proceed further from such plots into the territory
of the other State.”).
372
Agreement Concerning Local Border Traffic and Excursion Traffic art. 7 (Austria, Germany, 1986), available at
http://untreaty.un.org/unts/60001_120000/21/6/00040281.pdf (“In the event of accidents, disasters or other
emergencies, medical personnel, firemen, mountain guides and other rescue teams, as well as the casualties, may
cross the frontier without a frontier crossing document at any point in order to give help or enlist assistance.”).
373
Agreement Concerning Local Border Traffic and Excursion Traffic art. 2(5) (Austria, Germany, 1986), available
at http://untreaty.un.org/unts/60001_120000/21/6/00040281.pdf.
374
Agreement Concerning Local Border Traffic and Excursion Traffic art. 2(5) (Austria, Germany, 1986), available
at http://untreaty.un.org/unts/60001_120000/21/6/00040281.pdf.
375
Agreement Concerning Local Border Traffic and Excursion Traffic art. 2(5) (Austria, Germany, 1986), available
at http://untreaty.un.org/unts/60001_120000/21/6/00040281.pdf.
376
Agreement Between the Government of the Republic of Estonia and the Government of the Republic of Latvia
Regarding Border Crossing Points (Estonia, Latvia, 1996), available at
http://untreaty.un.org/unts/120001_144071/28/6/00023448.pdf.
377
Agreement Between the Government of the Republic of Estonia and the Government of the Republic of Latvia
Regarding Border Crossing Points arts. 2, 3 (Estonia, Latvia, 1996), available at
http://untreaty.un.org/unts/120001_144071/28/6/00023448.pdf (Specifying border crossing points for (1) inhabitants
without goods, (2) radioactive materials, narcotic drugs and psychotropic substances, and (3) livestock, animal, and
agricultural products.).

82
Article 8 of the Agreement provides special border crossing rights to persons
living near the border who need to cross the border outside the specified crossing
points in order to reach permanent roads in their home state.378 This provision
assists those who live in areas without many permanent roads. However, border
area residents who exercise this special crossing right are required to carry a
license issued by border representatives of Estonia and Latvia.379 The license is
issued free of charge.380

Lesotho – South Africa

A 2007 agreement between the governments of South Africa and Lesotho


provides reduced border crossing regulations for citizens of the two states, while
recognizing the “geographic proximity and socio-economic interdependency that
bind both countries.”381 The agreement provides that citizens of South Africa and
Lesotho do not have to undergo examinations when entering the territory of the
corresponding state, and must only present their passports for verification purposes
when crossing the border.382 Passports are not stamped, and individual movements
are not recorded.383 This simplified process would apply to citizens crossing for
the purposes of “holiday, business and transit, without visas and / or temporary

378
Agreement Between the Government of the Republic of Estonia and the Government of the Republic of Latvia
Regarding Border Crossing Points art. 8 (Estonia, Latvia, 1996), available at
http://untreaty.un.org/unts/120001_144071/28/6/00023448.pdf (“Those persons living near the border, who do not
have means of egress from their place of inhabitancy in their nation’s territory by permanent roads are permitted
outside of defined border crossing points in order to reach and return from permanent roads in their nation’s
territory.”).
379
Agreement Between the Government of the Republic of Estonia and the Government of the Republic of Latvia
Regarding Border Crossing Points art. 8 (Estonia, Latvia, 1996), available at
http://untreaty.un.org/unts/120001_144071/28/6/00023448.pdf (“The crossing of the national border outside the
defined border crossing points by the aforementioned persons is permitted by licenses issued by the border
representatives of the Contracting Parties.”).
380
Agreement Between the Government of the Republic of Estonia and the Government of the Republic of Latvia
Regarding Border Crossing Points art. 8 (Estonia, Latvia, 1996), available at
http://untreaty.un.org/unts/120001_144071/28/6/00023448.pdf
381
Agreement Between the Government of the Republic of South Africa and the Government of the Kingdom of
Lesotho on the Facilitation of Cross Border Movement of Citizens preamble (Lesotho, South Africa, 2007),
available at http://www.pmg.org.za/files/docs/090217agreement_0.pdf.
382
Agreement Between the Government of the Republic of South Africa and the Government of the Kingdom of
Lesotho on the Facilitation of Cross Border Movement of Citizens art. 2(1)-(2) (Lesotho, South Africa, 2007),
available at http://www.pmg.org.za/files/docs/090217agreement_0.pdf.
383
Agreement Between the Government of the Republic of South Africa and the Government of the Kingdom of
Lesotho on the Facilitation of Cross Border Movement of Citizens art. 2(4) (Lesotho, South Africa, 2007), available
at http://www.pmg.org.za/files/docs/090217agreement_0.pdf.

83
residence permits.”384 Under the agreement, citizens of one state who work in the
other state’s territory need to report to the immigration office on their first entry
after the issuance of their work contract, but are not required to do so for
subsequent trips.385

384
Agreement Between the Government of the Republic of South Africa and the Government of the Kingdom of
Lesotho on the Facilitation of Cross Border Movement of Citizens art. 2(5) (Lesotho, South Africa, 2007), available
at http://www.pmg.org.za/files/docs/090217agreement_0.pdf.
385
Agreement Between the Government of the Republic of South Africa and the Government of the Kingdom of
Lesotho on the Facilitation of Cross Border Movement of Citizens art. 4 (Lesotho, South Africa, 2007), available at
http://www.pmg.org.za/files/docs/090217agreement_0.pdf.

84
BILATERAL AND MULTILATERAL INTERNATIONAL COOPERATION

Following potential Southern secession, the Government of Sudan and the


Government of Southern Sudan, in addition to concluding agreements on
succession procedures, may also conclude agreements establishing formal
mechanisms to ensure the continued economic cooperation and interconnectedness
of the Republic of Sudan and Southern Sudan as two independent states. There are
many types of agreements that states may enter into in order to develop or
strengthen bilateral or multilateral relationships with other states. While many
agreements that are in force today deal with economic relations, either bilaterally
or multilaterally, states continue to sign agreements that govern security
relationships and relationships over the use of shared environmental resources, in
addition to agreements that foster education and cultural exchanges and overall
friendly relations. Establishing formal relations through bilateral and/or
multilateral cooperative agreements may create economic incentives for the
Republic of Sudan and Southern Sudan to maintain peaceful relations post-2011,
even if political relations become strained. The following describes a number of
different arrangements and agreements that can achieve these purposes. While no
one example may be completely suited for arrangements between a newly
independent Southern Sudan and the Republic of Sudan, aspects of each can be
taken to create new mechanisms for cooperation that are distinctly tailored to meet
the parties’ needs post-2011.

Economic Cooperation: Bilateral Investment Treaties (BITs)

The bilateral investment treaty (BIT) is a legal instrument through which


two states set forth the rules that will govern investments by each state’s citizens in
each other’s territory.386 Although approximately forty percent of BITs are usually
established between an industrialized state and a developing state,387 there are
instances where two industrialized states or two developing states have entered into
a BIT.388 Industrialized states became interested in forming BITs in order to

386
Jeswald W. Salacuse and Nicholas P. Sullivan, Do BITs Really Work? An Evaluation of Bilateral Investment
Treaties and Their Grand Bargain, 46 HARVARD INTERNATIONAL LAW JOURNAL 67 (2005).
387
At the end of 1999, approximately forty percent of BITs were between an industrialized state and a developing
state, twenty-six percent were between developing states, and thirty-five percent involved Central or Eastern
European states. Only eleven BITs were between industrialized states. United Nations Conference on Trade and
Development (UNCTAD), Bilateral Investment Treaties 1959-1999, 4 (2000), available at
http://www.unctad.org/en/docs/poiteiiad2.en.pdf.
388
For example, the United States and Canada signed a BIT creating a free trade area between the two states in
1988, which eventually evolved into the North American Free Trade Agreement (NAFTA). Additionally, China and
Thailand signed a BIT in 1985 regarding the promotion and protection of investments, and Egypt and Morocco

85
protect their citizens who invested in developing states, while developing states
were interested in forming BITs in order to attract more investors.389

Bilateral investment treaties typically cover a number of areas, including (1)


the scope and definition of “investment,” (2) admission and establishment, (3)
national treatment, (4) most-favored-nation treatment, (5) fair and equitable
treatment, (6) compensation in the event of expropriation or damage to the
investment, (7) guarantees of free transfers of funds, and (8) dispute settlement
mechanisms, both state-state and investor-state.390 The exact content of BITs do,
however, tend to vary widely.391 Some states have model agreements that they use
with numerous other state parties.392

South Africa – Mozambique

The governments of South Africa and Mozambique signed a BIT in 1997 to


create “favorable conditions” for the flow of investments between the two states.393
The treaty extends national treatment to the other state’s investors, providing the
investor with the “full protection” of the other state’s territory, as well as
investments and returns “no less favorable” than what the state provides for its own
investors.394 Additionally, investors are protected against nationalization or
expropriation of their investments in the territory of the other state, unless that
nationalization or expropriation is for a public purpose; in that instance, an investor
must be accorded compensation “at least equal to the market value of [their]
investment.”395 The treaty also provides dispute resolution mechanisms, through

signed a similar BIT in 1976. Jeswald W. Salacuse and Nicholas P. Sullivan, Do BITs Really Work? An Evaluation
of Bilateral Investment Treaties and Their Grand Bargain, 46 HARVARD INTERNATIONAL LAW JOURNAL 67, 74
(2005).
389
United Nations Conference on Trade and Development (UNCTAD), Bilateral Investment Treaties 1959-1999, 1
(2000), available at http://www.unctad.org/en/docs/poiteiiad2.en.pdf.
390
United Nations Conference on Trade and Development (UNCTAD), What Are BITs? (Aug. 17, 2004), available
at http://www.unctadxi.org/templates/Page____1006.aspx.
391
United Nations Conference on Trade and Development (UNCTAD), Bilateral Investment Treaties 1959-1999, 20
(200o), available at http://www.unctad.org/en/docs/poiteiiad2.en.pdf.
392
See Rudolf Dolzer and Margrete Stevens, Bilateral Investment Treaties, International Centre for Settlement of
Investment Disputes (ICSID), Annex I, 200-208 (Kluwer Law International 1995). See also Draft Model
Norwegian Bilateral Investment Treaty (Dec. 19, 2007), available at
http://www.regjeringen.no/upload/NHD/Vedlegg/hoeringer/Utkast%20til%20modellavtale2.doc.
393
Bilateral Investment Treaty (Mozambique, South Africa, 1997), available at
https://www.givengain.com/unique/tralac/pdf/20060921_SA_Mozambique.pdf.
394
Bilateral Investment Treaty art. 3 (Mozambique, South Africa, 1997), available at
https://www.givengain.com/unique/tralac/pdf/20060921_SA_Mozambique.pdf.
395
Bilateral Investment Treaty art. 5 (Mozambique, South Africa, 1997), available at
https://www.givengain.com/unique/tralac/pdf/20060921_SA_Mozambique.pdf (The investment’s “market value” is
pegged at the “market value of the investment expropriated immediately before the expropriation or before the

86
resolution by the International Centre for the Settlement of Investment Disputes
(“ICSID”), in the event an investor and a contracting state party are not able to
resolve a dispute.396

Economic Cooperation: Customs and Duties

Some states enter into agreements that establish customs unions. Customs
unions promote the cross-border movement of goods by eliminating or reducing
customs duties and taxes within the area of the member states, as well as
establishing a common external tariff on all goods entering the union. The member
states will often coordinate domestic policies to increase harmonization of trade
policies across the union, as the Southern African Customs Union does with
industrial development, agricultural, competition, and unfair trade policies,397 and
the Common Market of the Southern Cone does by committing to harmonize
domestic customs and trade legislation.398 Customs union agreements often limit
the ability of member states to enter into new preferential trade agreements with
third party states without the consent of the union.399

Southern African Customs Union (SACU)

The Southern African Customs Union (SACU) is a union formed by a


multilateral agreement between the governments of Botswana, Lesotho, Namibia,
South Africa, and Swaziland. The SACU aims to facilitate the cross-border
movement of goods throughout the state parties’ territories.400 The agreement
permits the cross-border transport of goods grown in SACU territories without

impending expropriation became public knowledge, whichever is the earlier, [and] shall include interest at a normal
market rate until the date of payment.”).
396
Bilateral Investment Treaty art. 7 (Mozambique, South Africa, 1997), available at
https://www.givengain.com/unique/tralac/pdf/20060921_SA_Mozambique.pdf.
397
2002 Southern African Customs Union (SACU) Agreement arts. 38 – 41 (Botswana, Lesotho, Namibia, South
Africa, Swaziland, 2002), available at http://www.sacu.int/main.php?include=docs/legislation/2002-
agreement/part8.html.
398
Treaty Establishing a Common Market art. 1 (Argentina, Brazil, Paraguay, Uruguay, 1991), available at
http://www.sice.oas.org/trade/mrcsr/mrcsrtoc.asp (“The commitment by States Parties to harmonize their legislation
in the relevant areas in order to strengthen the integration process.”).
399
See, e.g., 2002 Southern African Customs Union (SACU) Agreement art. 31(3) (Botswana, Lesotho, Namibia,
South Africa, Swaziland, 2002), available at http://www.sacu.int/main.php?include=docs/legislation/2002-
agreement/part1.html (“No Member State shall negotiate and enter into new preferential trade agreements with third
parties or amend existing agreements without the consent of other Member States.”).
400
2002 Southern African Customs Union (SACU) Agreement art. 2 (Botswana, Lesotho, Namibia, South Africa,
Swaziland, 2002), available at http://www.sacu.int/main.php?include=docs/legislation/2002-agreement/part1.html.

87
paying customs duties, except in specified exceptional situations.401 The SACU
further extends control over customs and duties in the region by establishing a
Common Revenue Pool, which each member state contributes all customs, excise,
and additional duties collected every three months.402 The revenue from the
Common Revenue Pool is divided amongst the member states according to a
formula set forth in the agreement.403

MERCOSUR (“The Common Market of the Southern Cone”)

In 1991, the governments of Argentina, Brazil, Paraguay, and Uruguay


signed the Treaty of Asuncion, establishing a common market between the four
states.404 The agreement involves four main commitments of the parties.405 First,
the agreement focuses on the elimination of customs duties and non-tariff
restrictions on the movement of goods between the states.406 Second, the parties
agree to establish a common external tariff and a common external trade policy.407
Third, the parties coordinate their macroeconomic policies related to foreign trade,
agriculture, industry, fiscal and monetary matters, foreign exchange and capital,
services, customs, transport and communications.408 Fourth, the parties commit to
harmonize domestic legislation in these areas in order to strengthen integration.409

401
Exceptions are made, and restrictions on imports and exports may be put in place to protect “(a) health of
humans, animals or plants; (b) the environment; (c) treasures of artistic, historic or archeological value; (d) public
morals; (e) intellectual property rights; (f) national security; and (g) exhaustible natural resources.” 2002 Southern
African Customs Union (SACU) Agreement art. 18 (Botswana, Lesotho, Namibia, South Africa, Swaziland, 2002),
available at http://www.sacu.int/main.php?include=docs/legislation/2002-agreement/part5.html.
402
2002 Southern African Customs Union (SACU) Agreement art. 32 (Botswana, Lesotho, Namibia, South Africa,
Swaziland, 2002), available at http://www.sacu.int/main.php?include=docs/legislation/2002-agreement/part6.html.
403
2002 Southern African Customs Union (SACU) Agreement arts. 34-37 (Botswana, Lesotho, Namibia, South
Africa, Swaziland, 2002), available at http://www.sacu.int/main.php?include=docs/legislation/2002-
agreement/part7.html.
404
Treaty Establishing a Common Market (Argentina, Brazil, Paraguay, Uruguay, 1991), available at
http://www.sice.oas.org/trade/mrcsr/mrcsrtoc.asp. See also BBC News, Profile: Mercosur – Common Market of the
South (Sep. 18, 2008), available at http://news.bbc.co.uk/2/hi/americas/5195834.stm.
405
Treaty Establishing a Common Market art. 1 (Argentina, Brazil, Paraguay, Uruguay, 1991), available at
http://www.sice.oas.org/trade/mrcsr/mrcsrtoc.asp.
406
Treaty Establishing a Common Market art. 1 (Argentina, Brazil, Paraguay, Uruguay, 1991), available at
http://www.sice.oas.org/trade/mrcsr/mrcsrtoc.asp.
407
Treaty Establishing a Common Market art. 1 (Argentina, Brazil, Paraguay, Uruguay, 1991), available at
http://www.sice.oas.org/trade/mrcsr/mrcsrtoc.asp.
408
Treaty Establishing a Common Market art. 1 (Argentina, Brazil, Paraguay, Uruguay, 1991), available at
http://www.sice.oas.org/trade/mrcsr/mrcsrtoc.asp.
409
Treaty Establishing a Common Market art. 1 (Argentina, Brazil, Paraguay, Uruguay, 1991), available at
http://www.sice.oas.org/trade/mrcsr/mrcsrtoc.asp.

88
Economic Community of West African States (ECOWAS)

Sixteen African states joined together in 1975 to create the Economic


Community of West African States (“ECOWAS”).410 The member states seek to
create a free trade area and common market in West Africa by abolishing customs
duties and non-tariff barriers and adopting common policies in the
economic, financial social and cultural sectors, and creating a monetary union.411
The treaty establishing the community also provided for a common external tariff
and trade policy towards third parties,412 making it more akin to a customs union
agreement even though the treaty is commonly referred to as a free trade
agreement. ECOWAS operates eight technical commissions to, among other
things, assist with harmonization and coordination between the member states, as
well as to monitor implementation of the treaty provisions.413 The eight technical
commissions are in the areas of (1) Food and Agriculture; (2) Industry, Science,
Technology, and Energy; (3) Environment and Natural Resources; (4) Transport,
Communications, and Tourism; (5) Trade, Customs, Taxation, Statistics, Money,
and Payments; (6) Political, Judicial and Legal Affairs, Regional Security, and
Immigration; (7) Human Resources, Information, Social, and Cultural Affairs; and
(8) Administration and Finance.414

410
Treaty of ECOWAS (Benin, Burkina Faso, Cape Verde, Côte d'Ivoire, Gambia, Ghana, Guinea, Guinea-Bissau,
Liberia, Mali, Nigeria, Senegal, Sierra Leone, and Togo, 1975), available at
http://www.comm.ecowas.int/sec/index.php?id=treaty&lang=en.
411
Treaty of ECOWAS art. 3(d)-(e) (Benin, Burkina Faso, Cape Verde, Côte d'Ivoire, Gambia, Ghana, Guinea,
Guinea-Bissau, Liberia, Mali, Nigeria, Senegal, Sierra Leone, and Togo, 1975), available at
http://www.comm.ecowas.int/sec/index.php?id=treaty&lang=en.
412
Treaty of ECOWAS art. 3(d) (Benin, Burkina Faso, Cape Verde, Côte d'Ivoire, Gambia, Ghana, Guinea, Guinea-
Bissau, Liberia, Mali, Nigeria, Senegal, Sierra Leone, and Togo, 1975), available at
http://www.comm.ecowas.int/sec/index.php?id=treaty&lang=en.
413
Treaty of ECOWAS art. 23 (Benin, Burkina Faso, Cape Verde, Côte d'Ivoire, Gambia, Ghana, Guinea, Guinea-
Bissau, Liberia, Mali, Nigeria, Senegal, Sierra Leone, and Togo, 1975), available at
http://www.comm.ecowas.int/sec/index.php?id=treaty&lang=en (“Each Commission shall, within its field of
competence: a) prepare Community projects and programmes and submit them for the consideration of Council
through the Executive Secretary, either on its own initiative or at the request of Council or the Executive Secretary;
b) ensure the harmonisation and co-ordination of projects and programmes of the Community; c) monitor and
facilitate the application of the provisions of this Treaty and related Protocols pertaining to its area of responsibility;
d) carry out any other functions assigned to it for the purpose of ensuring the implementation of the provisions of
this Treaty.”).
414
Treaty of ECOWAS art. 22 (Benin, Burkina Faso, Cape Verde, Côte d'Ivoire, Gambia, Ghana, Guinea, Guinea-
Bissau, Liberia, Mali, Nigeria, Senegal, Sierra Leone, and Togo, 1975), available at
http://www.comm.ecowas.int/sec/index.php?id=treaty&lang=en.

89
Economic Cooperation: Free Trade Agreements

States may enter into economically beneficial agreements regarding free


trade between the party states. Sometimes these agreements are made bilaterally,
while others are made between regional groups, such as the customs unions
discussed above, and individual states.415

Free trade agreements differ from customs unions in that member states of a
customs union have a common external tariff, while parties to a free trade
agreement usually maintain their pre-existing tariff structures and remove trade
barriers only from state parties to the agreement.416 Free trade agreements usually
reduce or eliminate tariffs and duties on goods moving between the party states.

Asia-Pacific Economic Cooperation (“APEC”)

The Asia-Pacific Economic Cooperation (“APEC”) was established in 1989


and includes twenty-one member states in the Asia-Pacific region.417 APEC’s
activities are focused in three areas: trade and investment liberalization, business
facilitation, and economic and technical cooperation.418 While APEC is
developing free trade agreements and regional trade agreements, the long-term
goal of APEC is to examine the prospects of a free trade area around the Asia-
Pacific region.419 In regards to free trade, APEC members work to reduce and
eliminate barriers to trade and investment, including tariffs.420

415
For example, MERCOSUR has free trade agreements with Bolivia and Chile. Organization of American States,
Trade Agreements in Force, available at http://www.sice.oas.org/agreements_e.asp.
416
Anne O. Krueger, Working Paper: Free Trade Agreements Versus Customs Unions 11 (1995), National Bureau
of Economic Research. See also Gene M. Grossman and Elhanan Helpman, The Politics of Free-Trade Agreements,
The American Economic Review, Vol. 85, No. 4 (Sep., 1995), pp. 667-690 (“The GATT rules allow for both
customs unions, in which member countries impose a common external tariff on trade with the rest of the world, and
free-trade areas, in which the countries maintain separate external tariffs and enforce them with rules of origin.”).
417
Current member states are Australia, Brunei, Canada, Chile, China, Hong Kong, Indonesia, Japan, Korea,
Malaysia, Mexico, New Zealand, Papua New Guinea, Peru, Philippines, Russia, Singapore, Taiwan, Thailand,
United States and Vietnam. Asia-Pacific Economic Cooperation, APEC at a Glance, 3 (2009), available at
http://publications.apec.org/publication-detail.php?pub_id=13.
418
Asia-Pacific Economic Cooperation, APEC at a Glance, 5 (2009), available at
http://publications.apec.org/publication-detail.php?pub_id=13.
419
Asia-Pacific Economic Cooperation, APEC at a Glance, 6 (2009), available at
http://publications.apec.org/publication-detail.php?pub_id=13.
420
Asia-Pacific Economic Cooperation, APEC Outcomes & Outlook 2008/2009, 28, available at
http://publications.apec.org/publication-detail.php?pub_id=14.

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However, APEC is operated in a unique fashion, as membership does not
require a binding commitment.421 Rather, compliance with APEC’s goals and
decisions is encouraged through peer pressure and assistance from other member
states.422

South Africa – Malawi

In 1990, the governments of South Africa and Malawi signed an


asymmetrical bilateral economic cooperation treaty, establishing a free trade
relationship.423 The agreement provides that goods “grown, produced, or
manufactured” in Malawi can be imported into South Africa without paying
customs duties.424 Goods produced in South Africa can be imported into Malawi;
however those goods are subject to a special rate of duty provided for in Malawi’s
Customs Tariff.425 The agreement defines the standards of what constitutes goods
produced in Malawi and South Africa, with each definition differing by state.426
Though the agreement provides for exemption from customs duties on goods from
Malawi, the state parties reserve exceptions for anti-dumping, countervailing
subsidized goods, and violations of excise legislation.427

Economic Cooperation: Other Agreements

There have also been instances where states have entered agreements
regarding economic cooperation that do not fall under investments, customs and
duties, or free trade. An Agreement to Maintain the Friendly Relations Between

421
Asia-Pacific Economic Cooperation, APEC Outcomes & Outlook 2008/2009, 28, available at
http://publications.apec.org/publication-detail.php?pub_id=14.
422
Asia-Pacific Economic Cooperation, APEC Outcomes & Outlook 2008/2009, 28, available at
http://publications.apec.org/publication-detail.php?pub_id=14.
423
Trade Agreement Between the Government of the Republic of South Africa and the Government of the Republic
of Malawi (Malawi, South Africa, 1990), available at
https://www.givengain.com/unique/tralac/pdf/20060921_trade_SA_Malawi.pdf.
424
Trade Agreement Between the Government of the Republic of South Africa and the Government of the Republic
of Malawi art. 2 (Malawi, South Africa, 1990), available at
https://www.givengain.com/unique/tralac/pdf/20060921_trade_SA_Malawi.pdf.
425
Trade Agreement Between the Government of the Republic of South Africa and the Government of the Republic
of Malawi art. 4 (Malawi, South Africa, 1990), available at
https://www.givengain.com/unique/tralac/pdf/20060921_trade_SA_Malawi.pdf.
426
Trade Agreement Between the Government of the Republic of South Africa and the Government of the Republic
of Malawi art. 6 (Malawi, South Africa, 1990), available at
https://www.givengain.com/unique/tralac/pdf/20060921_trade_SA_Malawi.pdf.
427
Trade Agreement Between the Government of the Republic of South Africa and the Government of the Republic
of Malawi art. 7 (Malawi, South Africa, 1990), available at
https://www.givengain.com/unique/tralac/pdf/20060921_trade_SA_Malawi.pdf.

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China and Nepal and on Trade and Intercourse Between the Tibet Region of China
and Nepal (“Agreement”), signed in 2000, delineates special economic cooperation
provisions that are unique to the relationship between China and Nepal.428 The
Agreement sets forth markets customarily used for border trade by local residents,
and provides for the continued cross-border use of the markets for that purpose.429
The Agreement also exempts religious believers participating in their traditional
pilgrimage, border inhabitants crossing the border for “seasonal changes in
resdidence,” and traditional pretty traders from documentation requirements for
their border crossing and trading.430

Environmental Cooperation

States, particularly ones that share a border, sometimes share resources or


environmental concerns. States may enter into agreements to govern the shared
use of resources and maintain strong relations between them. The governments of
India and Pakistan signed the Indus Waters Treaty in 1960 to govern the use of
rivers that crossed the border between the two states.431 The treaty committed the
parties to not block the river water and prevent it from flowing to the other state, as
well as limited the parties’ uses of the river to domestic use, non-consumptive use,
agricultural use, and use for hydroelectric power.432 The treaty also established a
commission to discuss the use of the rivers and monitor adherence to the treaty
provisions433 and set up a dispute resolution procedure.434

428
Agreement to Maintain the Friendly Relations Between China and Nepal and on Trade and Intercourse Between
the Tibet Region of China and Nepal (China, Nepal, 2000), available at
http://www.mfa.gov.cn/eng/wjb/zzjg/tyfls/tyfl/2631/t15491.htm.
429
Agreement to Maintain the Friendly Relations Between China and Nepal and on Trade and Intercourse Between
the Tibet Region of China and Nepal art. 4, para. 2 (China, Nepal, 2000), available at
http://www.mfa.gov.cn/eng/wjb/zzjg/tyfls/tyfl/2631/t15491.htm.
430
That is, these persons do not need to carry passports or hold visas or “other documents of certification” when
crossing the border. Agreement to Maintain the Friendly Relations Between China and Nepal and on Trade and
Intercourse Between the Tibet Region of China and Nepal art. 4, para. 5 (China, Nepal, 2000), available at
http://www.mfa.gov.cn/eng/wjb/zzjg/tyfls/tyfl/2631/t15491.htm.
431
The Indus Waters Treaty (India, Pakistan, 1960), available at
http://siteresources.worldbank.org/INTSOUTHASIA/Resources/223497-
1105737253588/IndusWatersTreaty1960.pdf.
432
The Indus Waters Treaty arts. 2-4 (India, Pakistan, 1960), available at
http://siteresources.worldbank.org/INTSOUTHASIA/Resources/223497-
1105737253588/IndusWatersTreaty1960.pdf.
433
The Indus Waters Treaty art. 8 (India, Pakistan, 1960), available at
http://siteresources.worldbank.org/INTSOUTHASIA/Resources/223497-
1105737253588/IndusWatersTreaty1960.pdf.
434
The Indus Waters Treaty art. 9 (India, Pakistan, 1960), available at
http://siteresources.worldbank.org/INTSOUTHASIA/Resources/223497-
1105737253588/IndusWatersTreaty1960.pdf.

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Where two states share natural resources or have environmental concerns
involving the other state, establishing a treaty may aid in fostering good relations
between the states and providing for continued access to the resource, even when
political relations may be challenging.

Security Cooperation

States also enter into agreements governing security relationships between


the parties. One type of security agreement between two states is a non-aggression
pact or treaty, where the states commit to maintaining peaceful relations each
other. This type of agreement has been made following secession and
independence, as with the Czech Republic and Slovakia, or in response to violent
aggression, as with the Democratic Republic of Congo and Uganda.

Czech Republic & Slovakia

Following the peaceful dissolution of Czechoslovakia on December 31,


1992, the Czech Republic and Slovakia signed the Agreement on Good-
Neighbourliness, Friendly Relations and Cooperation (“Treaty”).435 The Treaty
contains provisions relating to a wide array of issues, including education, culture,
minority rights, economic issues, as well as security, defense, and territorial
integrity.

Under the Treaty, the parties agree that their relations with one another and
their relations with other states shall be guided by international law, “particularly
by the principles of sovereign equality, territorial integrity and political
independence, the inviolability of State frontiers and non-interference in internal
affairs.”436 The Treaty also calls upon the parties to “endeavor . . . to reduce the
number of troops and weapons in Europe to a level sufficient for defence but not
for aggression,”437 to hold regular consultations on issues of security and defense,
and to initiate consultations in the event of any dispute or situation that might

435
Treaty on Good-Neighbourliness, Friendly Relations and Cooperation, (Czech Republic and Slovakia, 1992),
available at http://untreaty.un.org/unts/120001_144071/27/10/00022881.pdf (the Agreement was signed on Nov. 23,
1992 and came into force as a Treaty on July 1, 1993 by the exchange of instruments of ratification).
436
Treaty on Good-Neighbourliness, Friendly Relations and Cooperation, art. 2 (Czech Republic and Slovakia,
1992), available at http://untreaty.un.org/unts/120001_144071/27/10/00022881.pdf.
437
Treaty on Good-Neighbourliness, Friendly Relations and Cooperation, art. 4 (Czech Republic and Slovakia,
1992), available at http://untreaty.un.org/unts/120001_144071/27/10/00022881.pdf.

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threaten peace and security.438 Since the separation of the Czech Republic and
Slovakia, the two states have maintained peaceful and friendly relations.439

Democratic Republic of Congo – Uganda

In September 2002, the governments of Uganda and the Democratic


Republic of Congo (“DRC”) signed the Luanda Agreement, which provides for the
withdrawal of Ugandan troops from DRC territory, the non-use of force against
each other, and the normalization of relations between the two states.440 In an
effort to facilitate the withdrawal of Ugandan troops from the DRC, the Luanda
Agreement contains a detailed implementation plan that provides a timetable for
the withdrawal of troops from specific areas, the cooperation of experts from both
parties regarding security arrangements and of a Joint Technical Commission to
address legal issues, as well as the establishment of an Administrative Authority in
Ituri Province in DRC. Additionally, the Luanda Agreement provides that the
parties agree to cooperate on issues of defense and security, including joint training
and intelligence sharing,441 and that the parties agree to solve any future difference
peacefully.442

From the signing of the Luanda Agreement until 2008, relations between the
two states were relatively strained. In December 2008, however, the government
of the DRC cooperated with the Ugandan government and allowed Ugandan forces
to enter DRC territory to confront LRA forces.443 This exercise in military
cooperation was a turning point in relations between the two states, leading to the
restoration of full diplomatic relations in August 2009.444

438
Treaty on Good-Neighbourliness, Friendly Relations and Cooperation, art. 5 (Czech Republic and Slovakia,
1992), available at http://untreaty.un.org/unts/120001_144071/27/10/00022881.pdf.
439
United States Department of State, Background Note: Czech Republic, 3 (July, 2009), available at
http://www.state.gov/r/pa/ei/bgn/3237.htm.
440
Luanda Agreement (DRC and Uganda, Sep. 6, 2002), available at
http://www.usip.org/files/file/resources/collections/peace_agreements/drc_uganda_09062002.pdf.
441
Luanda Agreement art. 5 (DRC and Uganda, Sep. 6, 2002), available at
http://www.usip.org/files/file/resources/collections/peace_agreements/drc_uganda_09062002.pdf.
442
Luanda Agreement art. 7 (DRC and Uganda, Sep. 6, 2002), available at
http://www.usip.org/files/file/resources/collections/peace_agreements/drc_uganda_09062002.pdf.
443
Restoration of DRC-Uganda Ties Shows New Regional Cooperation, VOA (Sept. 2, 2009), available at
http://www.voanews.com/english/archive/2009-08/2009-08-31-voa30.cfm?moddate=2009-08-31.
444
Restoration of DRC-Uganda Ties Shows New Regional Cooperation, VOA (Sept. 2, 2009), available at
http://www.voanews.com/english/archive/2009-08/2009-08-31-voa30.cfm?moddate=2009-08-31.

94
Friendship and General Cooperation

Some states enter into treaties of friendship, good-neighbourliness, or


cooperation. These treaties vary widely in the issues covered, according to the
specific needs of the state parties to the agreement. For example, issues of security
and military cooperation, economic cooperation, cultural exchange and promotion,
and the promotion of peace are some of the common elements included. The
foundation for this type of agreement is to promote good relations between the two
states, which are often neighboring states and thus more likely to have populations
that overlap in terms of ethnic background, language, and culture.

Spain – Morocco

Spain and Morocco are neighboring states, separated only by the narrow
Strait of Gibraltar, with a long history of contact between them.445 The
governments of Spain and Morocco signed a Treaty of Friendship, Good-
Neighbourliness and Cooperation in 1991, committing to further develop and
strengthen bilateral relations.446 The parties reference the “close geographical
proximity” between them and the sensitivity to the growing contact between the
citizens of each state as principles behind the agreement, and recognize that peace
and stability in the region will most effectively encourage progress and
development in both states.447

The treaty includes provisions refraining from intervention in the affairs of


the other state448 and from the threat or use of force against the territorial or
political integrity of the other Party.449 Additionally, the governments of Spain and

445
U.S. Department of State, Background Note: Spain (2009), available at
http://www.state.gov/r/pa/ei/bgn/2878.htm.
446
Treaty of Friendship, Good-Neighbourliness and Cooperation (Morocco, Spain, 1991), available at
http://treaties.un.org/doc/Publication/UNTS/Volume%201717/volume-1717-I-29862-English.pdf.
447
Treaty of Friendship, Good-Neighbourliness and Cooperation preamble (Morocco, Spain, 1991), available at
http://treaties.un.org/doc/Publication/UNTS/Volume%201717/volume-1717-I-29862-English.pdf.
448
Treaty of Friendship, Good-Neighbourliness and Cooperation general principles, para. 3 (Morocco, Spain,
1991), available at http://treaties.un.org/doc/Publication/UNTS/Volume%201717/volume-1717-I-29862-
English.pdf. (“The High Contracting Parties shall refrain from any direct or indirect, individual or collective
intervention in internal or external affairs falling within the internal jurisdiction of the other Party.”)
449
Treaty of Friendship, Good-Neighbourliness and Cooperation general principles, para. 3 (Morocco, Spain,
1991), available at http://treaties.un.org/doc/Publication/UNTS/Volume%201717/volume-1717-I-29862-English.pdf
(“In their mutual relations, both parties shall refrain from recourse to the threat or use of force against the territorial
integrity or political independence of the other Party, and from any other action incompatible with the purposes of
the United Nations.”).

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Morocco commit to settling disputes peacefully,450 reducing the differences in the
level of economic development of each state,451 respecting human rights and
fundamental freedoms,452 and promoting greater knowledge and understanding of
each other to foster better relations.453

In order to accomplish the goals of the agreement, the parties establish both
specific and general mechanisms. High-level representatives, including the Heads
of Government, meet on a regular schedule.454 To foster stronger economic
cooperation, the parties agree to promote joint investment projects and
infrastructure projects of common interest to both.455 The parties also agree to
promote cooperation between the armed forces of each state, develop training
courses, and organize joint programs related to security issues relevant to both
states.456 Furthermore, the governments of Spain and Morocco recognize the
cultural differences between them, but commit to promoting understanding and
cooperation through exchanges of students and teachers, the teaching of Arabic
language and culture in Spain and the Spanish language and culture in Morocco,
and encouraging the study of each other’s laws.457

450
Treaty of Friendship, Good-Neighbourliness and Cooperation general principles, para. 5 (Morocco, Spain 1991),
available at http://treaties.un.org/doc/Publication/UNTS/Volume%201717/volume-1717-I-29862-English.pdf
(“...the Contracting Parties shall settle any disputes which may arise between them by peaceful means, in such a way
that international peace and security and justice are not jeopardized.”).
451
Treaty of Friendship, Good-Neighbourliness and Cooperation general principles, para. 6 (Morocco, Spain 1991),
available at http://treaties.un.org/doc/Publication/UNTS/Volume%201717/volume-1717-I-29862-English.pdf (“The
two Parties...shall always keep in mind their interest in reducing the differences in their levels of economic
development by creating a new climate of economic and financial solidarity…”).
452
Treaty of Friendship, Good-Neighbourliness and Cooperation general principles, para. 7 (Morocco, Spain 1991),
available at http://treaties.un.org/doc/Publication/UNTS/Volume%201717/volume-1717-I-29862-English.pdf.
453
Treaty of Friendship, Good-Neighbourliness and Cooperation general principles, para. 8 (Morocco, Spain 1991),
available at http://treaties.un.org/doc/Publication/UNTS/Volume%201717/volume-1717-I-29862-English.pdf
(“...the two parties shall endeavor to promote greater and better knowledge of each other in order to eliminate old
misunderstandings and collective apprehensions that are impeding the establishment of improved understanding
between their societies and peoples.”).
454
Treaty of Friendship, Good-Neighbourliness and Cooperation art. 1 (Morocco, Spain 1991), available at
http://treaties.un.org/doc/Publication/UNTS/Volume%201717/volume-1717-I-29862-English.pdf.
455
Treaty of Friendship, Good-Neighbourliness and Cooperation arts. 3-4 (Morocco, Spain 1991), available at
http://treaties.un.org/doc/Publication/UNTS/Volume%201717/volume-1717-I-29862-English.pdf.
456
Treaty of Friendship, Good-Neighbourliness and Cooperation art. 5 (Morocco, Spain 1991), available at
http://treaties.un.org/doc/Publication/UNTS/Volume%201717/volume-1717-I-29862-English.pdf.
457
Treaty of Friendship, Good-Neighbourliness and Cooperation arts. 7-10 (Morocco, Spain 1991), available at
http://treaties.un.org/doc/Publication/UNTS/Volume%201717/volume-1717-I-29862-English.pdf.

96
Ukraine – Azerbaijan

The governments of Ukraine and Azerbaijan signed a Treaty on Friendship,


Cooperation and Partnership in 2000.458 This treaty includes provisions similar to
the Spain – Morocco treaty, committing to strengthening international peace,
offering assistance to each other, preserving historical and cultural heritage of
each, and participating in educational exchanges.459 However, the governments of
Ukraine and Azerbaijan place increased emphasis on security concerns. Under the
agreement, the parties are to prohibit individuals from using their territories for
acts of aggression against the other,460 prohibit and prevent the establishment of
groups within their territory that threaten the sovereignty of the other state,461
cooperate in fighting international crime,462 and develop military cooperation.463

458
Treaty on Friendship, Cooperation and Partnership (Azerbaijan, Ukraine, 2000), in United Nations Treaty Series
Vol. 2233, 135 available at http://treaties.un.org/doc/Publication/UNTS/Volume%202233/v2233.pdf.
459
See Treaty on Friendship, Cooperation and Partnership arts. 3-4, 14-16 (Azerbaijan, Ukraine, 2000), in United
Nations Treaty Series Vol. 2233, 135 available at
http://treaties.un.org/doc/Publication/UNTS/Volume%202233/v2233.pdf.
460
Treaty on Friendship, Cooperation and Partnership art. 7 (Azerbaijan, Ukraine, 2000), in United Nations Treaty
Series Vol. 2233, 136 available at http://treaties.un.org/doc/Publication/UNTS/Volume%202233/v2233.pdf.
461
Treaty on Friendship, Cooperation and Partnership art. 6 (Azerbaijan, Ukraine, 2000), in United Nations Treaty
Series Vol. 2233, 136, available at http://treaties.un.org/doc/Publication/UNTS/Volume%202233/v2233.pdf.
462
Treaty on Friendship, Cooperation and Partnership art. 21 (Azerbaijan, Ukraine, 2000), in United Nations
Treaty Series Vol. 2233, 139, available at http://treaties.un.org/doc/Publication/UNTS/Volume%202233/v2233.pdf.
463
Treaty on Friendship, Cooperation and Partnership art. 22 (Azerbaijan, Ukraine, 2000), in United Nations
Treaty Series Vol. 2233, 139, available at http://treaties.un.org/doc/Publication/UNTS/Volume%202233/v2233.pdf.

97
About the Public International Law & Policy Group

The Public International Law & Policy Group, a 2005 Nobel Peace Prize nominee, is a non-
profit organization, which operates as a global pro bono law firm providing free legal assistance
to states and governments involved in peace negotiations, drafting post-conflict constitutions,
and prosecuting war criminals. To facilitate the utilization of this legal assistance, PILPG also
provides policy formulation advice and training on matters related to conflict resolution.

PILPG’s four primary practice areas are:


• Peacebuilding
• War Crimes
• Post-Conflict Political Development
• Public International Law

To provide pro bono legal advice and policy formulation expertise, PILPG draws on the
volunteer services of over sixty former legal advisors and former Foreign Service officers from
the US Department of State and other foreign ministries. PILPG also draws on pro bono
assistance from major international law firms including Baker & McKenzie; Covington &
Burling; Curtis, Mallet-Prevost, Colt and Mosle; DLA Piper; Sullivan & Cromwell; Steptoe &
Johnson; Milbank, Tweed, Hadley & McCloy; WilmerHale; Vinson & Elkins; and graduate
international affairs and law students at American University and Case Western Reserve Schools
of Law. Annually, PILPG is able to provide over $2 million worth of pro bono international
legal services.

Frequently, PILPG sends members in-country to facilitate the provision of legal assistance and
its members often serve on the delegations of its clients during peace negotiations. To facilitate
this assistance, PILPG is based in Washington, D.C. and has points of contact in New York City,
Boston, Seattle, Cleveland, London, Paris, Rome, The Hague, Stockholm, Belfast, Krakow,
Budapest, Zurich, Tbilisi, Kabul, and Nairobi.

PILPG was founded in London in 1995 and moved to Washington, D.C. in 1996, where it
operated under the auspices of the Carnegie Endowment for International Peace for two years.
PILPG currently maintains an association with American University in Washington, D.C., and
Case Western Reserve University in Cleveland, Ohio. In July 1999, the United Nations granted
official Non-Governmental Organizations status to PILPG.

In January 2005, a half dozen of PILPG’s pro bono clients nominated PILPG for the Nobel
Peace Prize for “significantly contributing to the promotion of peace throughout the globe by
providing crucial pro bono legal assistance to states and non-state entities involved in peace
negotiations and in bringing war criminals to justice.”

98

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