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The Hague Conventions on Private International Law and State Succession
Published online by Cambridge University Press: 21 May 2009
Extract
The last decade has seen a most encouraging territorial extension of the application of the Hague Conventions. This may, to some extent, be attributed to the efforts of Member States to extend the application of such treaties to territories for the international relations of which they are responsible. The United Kingdom has been particularly active in this respect, extending the application of the Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions to 28 territories, and that Abolishing the Requirement of Legalisation for Foreign Public Documents to 34 territories. Whilst this adds a new dimension to the Conventions, it does pose problems when the territories become independent.
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References
1 The text of the Hague Conventions may be found in the “Recueil des Conventions de La Haye” published by Martinus Nijhoff, The Hague in 1970. Details regarding signatures, ratifications and declarations may be obtained from the Permanent Bureau of the Conference, Javastraat 2c, The Hague.
2 Malta and Malawi have acceded to the Convention; however, although formerly British dependent territories, they gained independence prior to the United Kingdom ratification of the Convention.
3 United Nations General Assembly A/CN.4/224. p. 14.Google Scholar
4 British Yearbook of Int. Law., vol. 29 (1952), p. 105.Google Scholar
6 International Law Association Yearbook (1968)—Report of the 53rd Conference, p. 612.Google Scholar
6 Yearbook of the International Law Commission (1969) Vol. II p. 64.Google Scholar
7 O'Connel, “Recent Problems of State Succession in Relation with New States” Recueil de l'Académie de Droit International Vol. 130, p. 174.Google Scholar
8 International Law Association Yearbook (1968)—Report of the 53rd Conference, p. 615.Google Scholar
9 See Article 12, p. 20 supra.
10 Yearbook of the International Law Commission (1969) Vol. II p. 62.Google Scholar
11 Provisional effect is given to devolution agreements providing for continuity of treaty obligations pending a decision, by article 4(2), unless (a) the treaty comes into force automatically under general international law, (b) this would be incompatible with the object and purpose of the Convention and (c) objection notified by the third State.
12 International Law Association Yearbook (1968)—Report of the 53rd Conference p. 621.Google Scholar
13 International Law Association Yearbook (1968)—Report of the 53rd Conference p. 596.Google Scholar
14 at p. 21.
15 U.N. General Assembly A/CN4/224. p. 28.
16 U.N. General Assembly A/CN4/224 Add. 1. p. 10.
17 The date of receipt of the notification by the depositary unless the treaty otherwise provides (according to article 12(1)).
18 A further complication in the case of Tonga is that it was a “protected State”, and one might conclude that article 18(2) of the Special Rapporteur's Draft would apply:
“Unless terminated or suspended in conformity with its own provisions or with the general rules of international law:
… (b) a treaty to which a State, when a protected State, became a party in its own name and by its own will continues in force with respect to that State after its attainment of independence”.
See generally U.N. General Assembly A/CN4/256. p. 16.
19 Cf. Article 9(1) of the Special Rapporteur to the ILC's Draft:
“When the consent of a new State to be bound by a multilateral treaty is established by means of a notifications of succession, it shall be considered as maintaining any reservations applicable in respect of the territory in question at the date of succession unless: (a) the State in notifying its succession to the treaty, expressed a contrary intention or formulated reservations different from those applicable at the date of the succession; or (b) the particular reservation, by reason of its object and purpose, must be considered as appropriate only in relation to the predecessor State.” (A/CN4/224 p. 52)
20 U.N. General Assembly A/CN4/256; p. 15.Google Scholar
21 International Law Association Yearbook (1968)—Report of the 53rd Conference, p. 610.Google Scholar
22 This conclusion would lead us to submit that Algeria is no longer a Party to the Convention on Civil Procedure of the 1st of March 1954. France had extended the application of the Convention to Algeria on the 28th of December 1960. However, since independence, Algeria has neither acceded to the Convention nor even declared its intention to remain bound by it. The very basis of the Convention is reciprocity and the strict conditions governing accession (Article 31) indicate that no Contracting State should be bound to apply reciprocal provisions of the Convention with a State not formally acceding to it. Furthermore, France considered it wise to conclude a bilateral treaty concerning legal cooperation with Algeria on the 28th of August 1962 which was to some extent modelled on the Hague Convention. (Revue critique de droit international privé 1962, p. 583et seq.)Google Scholar