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Office of the President
Ministry of Presidential Affairs
Legal Handbook
December 2009
In collaboration with
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,
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.
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).
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.
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.
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.
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.
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.
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.
________________
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
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
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
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.
2
DECLARING INDEPENDENCE AND SEEKING RECOGNITION
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
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
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
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
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.
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
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.
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
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
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.
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
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.
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.
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
Division of Debts
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
Territorial Debts
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
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.
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
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.
Repayment Conditions
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
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.
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
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.
Creditors’ Determination
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
Global Organizations
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
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
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.
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:
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
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
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.
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
• 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;
• 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
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
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.
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
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
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.
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
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
42
Consequently, 60,129 persons of Eritrean origin living in parts of Ethiopia other
than Eritrea registered to vote in the referendum.153
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
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
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
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
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
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.
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.
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.
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
Oil Pipelines
Pipelines in Africa
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
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 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
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
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
59
fees led to the shut down of oil flow in January 2007.242
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
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
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.
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
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
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
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.
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
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
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
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
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
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.
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
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
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
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 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
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
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
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
Ukraine – Poland
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
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
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
Estonia – Latvia
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
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
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
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
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
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
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)
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
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.
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.
90
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
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.
91
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
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.
92
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
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
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.
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Friendship and General Cooperation
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
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
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.
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