Revisiting State Succession to Humanitarian Treaties: Is There a Case for Automaticity?

Abstract

A belief formed over the last decade, both within and outside the academic community, that humanitarian treaties are subject to a special regime in the law of state succession, known as ‘automatic succession’. This article seeks to critically re‐examine the accuracy of this belief. By analysing the state practice generated during the recent wave of state succession, this article comprehensively elucidates the current customary regime of succession applicable to humanitarian treaties. With minor exceptions, the final verdict appears pessimistic: not only have the successor states not behaved as though succession to humanitarian treaties were automatic, but on the general level there also has not been any de facto continuity in succession patterns. The opinio juris currently held by the successor states strongly disfavours any automaticity of succession. Even the human rights bodies seem to vacillate in their opinion. Nevertheless, the idea of automatic succession to humanitarian treaties, strengthened by the doctrine of ‘acquired rights’, possesses enough legitimacy to be incorporated into positive international law. The major requirement at this stage, therefore, is to boost the spirit of accountability. Depositaries and treaty‐monitoring bodies must become more active in discharging their watchdog functions.