1 Vladimir-Djuro, Degan, State Succession: Especially in Respect of State Property and Debts, 1993 Fin.Y.B. Int’l L. 130 Google Scholar; Oeter, Stefan, State Succession and Struggle over Equity: Some Observations on the Laws of State Succession with Respect to State Property and Debts in Cases of Separation and Dissolution of States, 1995 Ger. Y.B. Int’l L. 73 Google Scholar; Ana, Stanić, Financial Aspects of State Succession: The Case of Yugoslavia, 12 Eur.J. Int’l L. 751 (2001)Google Scholar.

2 The Conclusions of the Peace Implementation Conference held in London on December 8, 1995, are available online at <http://www.ohr.int/pic/default.asp?content_id=5168>.

3 In a memorandum of March 7, 1994, the FRY government stated: “Although its position on international legal continuity is firmly legally based, the FR of Yugoslavia agreed, as an act of good will and proceeding from the principle of equity, to renounce part of the SFRY’s property in favour of the successor states “ Vladimir- Degan, Djuro, Disagreements over the Definition of State Property in the Process of State Succession to the Former Yugoslavia, in Succession of States 33, 46 (Mojmir Mrak ed., 1999)Google Scholar.

4 For analysis, see Zimmermann, Andreas, Staatennachfolge in Völkerrechtliche Verträge 100 (2000)Google Scholar; Z, Yehuda. Blum, , UN Membership of the “New” Yugoslavia: Continuity or Break? 86 AJIL 830 (1992)Google Scholar; Hummer, Waldemar & Jelka, Mayr-Singer, Die Bundesrepublikjugoslawien: Identitätsanspruch und Sukzessionsfragen im universellen, regionalen und nationalen Kontext, 38 Archiv Des Völkerrechts 298, 303 (2000)Google Scholar; Oeter, Stefan, Yugoslavia, Dissolution, in 4 Encyclopedia of Public International Law 1599 (Rudolf Bernhardt ed., 2000)Google Scholar; Schweisfurth, Theodor, Das Recht der Staatensukzession: Die Staatenpraxis derNachfolge in völkerrechtliche Verträge, Staatsvermögen, Staatsschulden und Archive in den Teilungsfällen Sowjetunion, Tschechoslowakei und Jugoslawien, in Das Recht Der Staatensukzession, 35 Berichte Derdeutschen Gesellschaft Für Völkerrecht 49, 189 (1996)Google Scholar; C, Michael. Wood, , Participation of Former Yugoslav States in the United Nations and in Multilateral Treaties, 1996 Max Planck Y.B. UN L. 231, 241 Google Scholar.

5 Conference for Peace in Yugoslavia, Arbitration Commission Opinion No. 10 (July 4, 1992), 31 ILM 1525, 1526, para. 5 (1992). See also the decision of the Austrian Supreme Court in Republic of Croatia v. Girocredit Bank A.G. der Sparkassen (Dec. 17, 1996), 36 ILM 1520, 1528 (1997), in which the Court stated:

For the U.S. position, see D, Edwin. Williamson, & E, John. Osburn, , A U.S. Perspective on Treaty Succession and Related Issues in the Wake of the Breakup of the USSR and Yugoslavia, 33 Va.J. Int’l L. 261, 270 (1993)Google Scholar.

6 SC Res. 777 (Sept. 19, 1992), 31 ILM 1473 (1992).

7 Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, Apr. 7,1983, 22 ILM 306 (1983) [hereinafter 1983 Vienna Convention]. For analysis of the Convention, see Nathan, Eli, The Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, in International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne 489 (Yoram Dinstein ed., 1989)Google Scholar; Streinz, Rudolf, Succession of States in Assets and Liabilities—a New Regime? The Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, 1983 Ger. Y.B. Int’l L. 198 Google Scholar.

8 Conference for Peace in Yugoslavia, Arbitration Commission Opinion No. 13 (July 16, 1993), 32 ILM 1591, 1592, paras. 2-4 (1993) [hereinafter Opinion No. 13]; Arbitration Commission Opinion No. 14 (Aug. 13,1993), 32 ILM at 1593, 1594-95, paras. 4, 8 [hereinafter Opinion No. 14].

9 Degan, supra note 3, at 54; Miloš Trifković, Fundamental Controversies in Succession to the Former SFR Yugoslavia, in Succession of States, supra note 3, at 187, 189.

10 Mojmir Mrak, Succession to the Former Yugoslavia’s External Debt: The Case of Slovenia, in Succession of States, supra note 3, at 159, 162; Stanić, supra note 1, at 759. For the corresponding practice of the World Bank, see Ibrahim F. I. Shihata, Matters of State Succession in the World Bank’s Practice, in Succession of States, supra note 3, at 75, 87. See generally on the role of financial institutions in the law of state succession, R, Paul. Williams, , State Succession and the International Financial Institutions: Political Criteria v. Protection of Outstanding Financial Obligations, 43 Int’l & Comp. L.Q. 776 (1994)Google Scholar.

11 Appendix to Agreement on Succession Issues, BIS Assets (Apr. 10, 2001), 41 ILM 7 (2002).

12 Agreement on Succession Issues and Annexes A to G, June 29,2001, Bosn. & Herz.-Croat-Maced.-Slovn.-Fed. R. Yugo, 41 ILM 3 (2002) [hereinafter Succession Agreement], available at <http://www.ohr.int/succession.html>.

13 Letter dated 27 October 2000 from the President of the Federal Republic of Yugoslavia to the Secretary-General, UN Doc. A/55/528-S/2000/1043.

14 Admission of the Federal Republic of Yugoslavia to Membership in the United Nations, GA Res. 55/12 (Nov. 10, 2000).

15 Malcolm N. Shaw, International Law 700 (1997); see also Opinion No. 14, supra note 8, at 1593, para. 1 (declaring that “the first principle applicable to state succession is that the successor States should consult with each other and agree [on] a settlement of all questions relating to the succession”).

16 For analysis of the development of the law of state succession, see Oeter, supra note l,at74; Schachter, Oscar, State Succession: The Once and Future Law, 33 Va. J. Int’l L. 252 (1993)Google Scholar.

17 The former SFRY was a party to the Vienna Convention on Succession of States in Respect of Treaties of 1978, but did not ratify the 1983 Vienna Convention.

18 Estonia, Georgia, Croatia, Macedonia, and Ukraine. The Convention requires fifteen ratifications to enter into force. 1983 Vienna Convention, supra note 7, Art. 50 (1).

19 Conference for Peace in Yugoslavia, Arbitration Commission Opinion No. 9 (July 4, 1992), 31 ILM 1523, 1524-25, para. 4 (1992) (emphasis added).

20 Succession Agreement, supra note 12, Art. 7. The Agreement shall enter into force thirty days after the deposit of the fifth instrument of ratification. Id., Art. 12(1).

21 Id., Art. 6.

22 Trifković, supra note 9, at 189.

23 Succession Agreement, supra note 12, pmbl.

24 See, e.g., Opinion No. 13, supra note 8, at 1592, para. 2 (noting that “articles 18, 31 and 41 of the Convention of 8 April 1983 are relevant where State succession occurs as a result of the dissolution of a pre-existing State”); see also Opinion No. 14, supra note 8, at 1594, para. 4 (referring directly to the Convention).

25 See 1983 Vienna Convention, supra note 7, Arts. 14, 17, 18, 22, 23, 27, 28, 30, 31, 37, 38, 40, 41.

26 Stanić, supra note 1, at 753.

27 On the role of equity in the succession negotiations, see Stanić, supra note 1, at 772. Stanić notes that the principle of equity was, in particular, regarded as customary law by the four successor republics.

28 For a general analysis, see Wladyslaw Czaplinski, Equity and Equitable Principles in the Law of State Succession, in Succession of States, supra note 3, at 61. See also Degan, supra note 1, at 188.

29 Trifković, supra note 9, at 200.

30 Succession Agreement, supra note 12, pmbl.

31 See id., Annex A, Arts. 1, 8(2).

32 Conference for Peace in Yugoslavia, Arbitration Commission Opinion No. 12 (July, 15 1993), 32 ILM 1589, 1590, para. 1 (1993).

33 Opinion No. 13, supra note 8, at 1592, para. 2.

34 On this concept, see the decision of the Austrian Supreme Court in the Girocredit Bank case, supra note 5, and G, Konrad. Bühler, , Two Recent Austrian Supreme Court Decisions on State Succession from an International Law Perspective, 2 Aus. Rev. Int’l & Eur. L. 213, 237 (1997)Google Scholar. The Austrian Supreme Court noted:

The property attributable to the State (of the SFRY) is to be distributed among the successor States in accordance with international agreements still to be concluded. As far as funds and assets deposited with Austrian banks are concerned, surrendering the joint property to only one of the successor States—ignoring the claims of the other members of such a community—would even more amount to the recognition of an expropriation without compensation in the State of the actual administrative seat, as the Federal Republic of Yugoslavia claims to be the sole successor State to the SFRY, if not identical with it.

Girocredit Bank, supra, at 1529.

35 Succession Agreement, supra note 12, Art. 2.

36 Id., Annex B, Art. 7.

37 Id., Annex A, Art. 3(2).

38 See Succession Agreement, supra note 12, Art. 4.

39 Id., Art. 5(2) (b).

40 Id., Art. 4(2).

41 Id., Annex A, Art. 5(1).

42 Id., Annex B, Art. 5.

43 Id., Annex C, Art. 6.

44 Id., Annex A, Art. 5(2) (“The Joint Committee shall commence its work within 3 months of the signature of this Agreement”); id., Annex B, Art. 6 (“The Joint Committee shall commence its work on a provisional basis within 3 months of the signature of this Agreement”); id., Annex C, Art. 6 (“Each successor State shall appoint a representative of the Central Bank or an other authorised representative to form a Committee, which shall meet within 30 days of the signature of this Agreement to arrange the modalities for the initial distributions identified in Article 5 of this Annex”); see also Succession Agreement, supra note 12, Art. 12(2) (stating that these provisions “shall be provisionally applied after the date of signature of this Agreement, in accordance with their terms”).

45 Degan, supra note 1, at 192. For an analysis of the role of arbitration in the succession negotiations and the legal value of the commission’s opinions, see also Trifković, supra note 9, at 201-03.

46 On the drafts preceding this Agreement, see Trifković, supra note 9, at 204.

47 Succession Agreement, supra note 12, Art. 5(1).

48 Id., Article 5(2) speaks of “a speedy and authoritative determination of the matter which shall be respected and which may, as appropriate, indicate specific time-limits for actions to be taken.”

49 Id., Art. 5(2). On the recommendatory nature of the decisions of the Standing Joint Committee, see id., Art. 4(2).

50 Id., Art. 5(3) (emphasis added).

51 See 1983 Vienna Convention, supra note 7, Arts. 44 (Judicial settlement and arbitration), 45 (Settlement by common consent). For discussion, see Nathan, supra note 7, at 509.

52 Succession Agreement, supra note 12, Art. 5(5).

53 Degan, supra note 3, at 33.

54 Opinion No. 14, supra note 8, at 1594, para. 3.

55 Id.

56 The expression “state property” did not appear in the Constitution. But, in practice, many self-managing organizations actually exercised property rights. Furthermore, the law of the SFRY recognized private ownership of land by private residents and by peasant farmers. Id., paras. 5-7; Degan, supra note 3, at 41-42.

57 Succession Agreement, supra note 12, Annex A, Art. 1(1).

58 SHAW, supra note 15, at 702, regards this principle as a rule of customary international law.

59 Id. at 701. The 1983 Vienna Convention, supra note 7, in Article 2(d), defines the “date of the succession of States” generally as the “date upon which the successor State replaced the predecessor State in the responsibility for the international relations of the territory to which the succession of States relates.”

60 Succession Agreement, supra note 12, Annex A, Art. 7 (emphasis added). These dates are Slovenia, June 25, 1991; Croatia, October 8, 1991; Macedonia, November 17, 1991; Bosnia and Herzegovina, March 6, 1992; and the FRY, April 27,1992.

61 The commission noted in its Opinion No. 1 that the SFRY was “in the process of dissolution.” Conference for Peace in Yugoslavia, Arbitration Commission Opinion No. 1 (Nov. 29, 1991), 31 ILM 1494, 1497, para. 3 (1992). Furthermore, the commission concluded in its Opinion No. 11 that

Id., Opinion No. 11 (July 16, 1993), 32 ILM 1587, 1587, para. 2 (1993). For Croatia and Slovenia, however, the relevant date was October 8, 1991, namely, the date of the expiration of the agreed suspension of their declarations of independence. Degan, supra note 1, at 182.

62 Slovenia, for example, proclaimed its independence on June 25,1991. The Arbitration Commission, however, treated October 8, 1991, as the date in question, relying on the day on which the moratorium on proclaiming independence ended. Stanić, supra note 1, at 756.

63 Succession Agreement, supra note 12, Annex A, Art. 7; see also 1983 Vienna Convention, supra note 7, Art. 9.

64 Not only were the federal institutions in Serbia, but also most of the military-industrial facilities. Degan, supra note 3, at 34.

65 Stanić, supra note 1, at 768.

66 On international practice, see Menon, P. K. , The Succession of States in Respect to Treaties, State Property, Archives, and Debts 92 (1992)Google Scholar.

67 Succession Agreement, supra note 12, Annex A, Art. 8(2) (emphasis added).

68 For a critical evaluation of such an approach, see SHAW, supra note 15, at 703.

69 1983 Vienna Convention, supra note 7, Arts. 17, 18 (emphasis added). Menon takes the view that the principles of the Vienna Convention reflect state practice in this regard. Menon, supra note 66, at 111.

70 Opinion No. 14, supra note 8, at 1594, para. 3.

71 Military property represented approximately 75% of the assets of the SFRY. But most of it was used by Serbia and Montenegro, which seized control over the federal army on May 17, 1991, and kept about two-thirds of the equipment. Degan, supra note 1, at 150, 173.

72 Article 30(3) of the 1983 Vienna Convention, supra note 7, provides that”[a]greements concluded between the predecessor State and the successor State in regard to State archives of the predecessor State shall not infringe the right of the peoples of those States to development, to information about their history and to their cultural heritage.”

73 While Croatia and Bosnia and Herzegovina actively supported the parallel settlement of succession issues and war damages, Slovenia and Macedonia wanted to separate these issues. The establishment of a special subgroup on war damages was envisaged by the Working Group on Economic Issues of the Conference on Yugoslavia but was ultimately not realized. Degan, supra note 1, at 173. For an analysis of this question in the context of the succession negotiations, see Trifković, supra note 9, at 189.

74 Opinion No. 13, supra note 8, at 1592, para. 3. The commission also stated:

The equitable division of the assets and liabilities of the former [SFRY] between the successor States must therefore be effected without the question of war damages being allowed to interfere in the matter of State succession, in the absence of an agreement to the contrary between some or all of the States concerned or of a decision imposed upon them by an international body.

Id., para. 4.

75 The return or compensation option provided for in Article 3(3) of Annex A for removed tangible state property applies to objects within die meaning of Article 3(1), but not of Article 3(2), which regulates objects of importance to a state’s cultural heritage.

76 For an argument in favor of such a rule, see SHAW, supra note 15, at 702. Initially, the FRY argued that it was entitled to all the immovable assets abroad. Stanić, supra note 1, at 768. But this claim was clearly rejected in the Succession Agreement.

77 Succession Agreement, supra note 12, Annex B, Art. 1(1).

78 See further Stanić, supra note 1, at 769.

79 Succession Agreement, supra note 12, Annex B, Art. 3.

80 On the IMF/BIS key, see note 11 supra and corresponding text.

81 See also Succession Agreement, supra note 12, Annex B, Art. 2(2), which states: “In that distribution, Bosnia and Herzegovina and Macedonia, are receiving a greater share than they would receive under the IMF key, or any other more favourable criterion for Bosnia and Herzegovina and Macedonia for the distribution of such properties.” On the negotiations concerning this question, see Stanić, supra note 1, at 769.

82 The Convention is silent, however, on the distribution of immovable state property situated abroad in the case of secession. For die conflicting positions in legal doctrine, see SHAW, supra note 15, at 702 (“should remain with the predecessor state”), and Menon, supra note 65, at 111 (“may be apportioned equitably among the successor State and the predecessor State”).

83 On the “Paris Club” and the “London Club,” see generally August Reinisch, State Responsibility For Debts 19 (1995).

84 This principle has also been applied in the cases of Czechoslovakia and the former Soviet Union. See Czaplinski, supra note 28, at 71; Schweisfurth, supra note 4, at 146, 162.

85 Opinion No. 14, supra note 8, at 1594-95, paras. 1, 8.

86 On this tendency, see also Oeter, supra note 1, at 102.

87 See Succession Agreement, supra note 12, Annex C, Art. 3, & app.

88 Id, Annex C, Art. 4(a).

89 Id., Annex C, Art. 4(b).

90 Id., Annex C, Art. 5(1) .

91 Id., Annex C, Art. 5(3).

92 On the merits of this key, see Trifković, supra note 9, at 199. The IMF key was supported, in particular, by Slovenia and Croatia.

93 Reliance on the size of the population would have led to the following key: Bosnia and Herzegovina, 17.75%; Croatia, 20.35%; Macedonia, 9.09%; Slovenia, 8.23%; and the FRY, 44.59%. Stanić, supra note 1, at 773.

94 On the position of Bosnia and Herzegovina and Macedonia, see Stanić, supra note 1, at 774. See also Trifković, supra note 9, at 199.

95 Schweisfurth, supra note 4, at 163.

96 Czaplinski, supra note 28, at 71; Stanić, supra note 1, at 773.

97 Oeter, supra note 4, at 1602.

98 For a full account, see Oeter, supra note 1, at 89.

99 On the negotiations with the Paris Club and the London Club, see Mrak, supra note 10, at 166-67.

100 Oeter, supra note 4, at 1603.

101 Succession Agreement, supra note 12, Annex C, Art. 3.

102 See the reference to Article 5(2) in id., Article 6 of Annex C.

103 Id., Annex C, Art. 2(1) (b).

104 Public debts may be divided into national debts, local debts, and localized debts. Local debts are debts contracted by a subgovernmental unit or a local authority with financial autonomy. Localized debts, on the contrary, are liabilities incurred by the central government of a state for the benefit of specific local areas, i.e., debts contracted for the purpose of local projects. See SHAW, supra note 15, at 708; Streinz, supra note 7, at 204.

105 Stanić, supra note 1, at 760.

106 On the local debt exception in the context of state succession, see Menon, supra note 65, at 159; Oeter, supra note 1, at 86; Streinz, supra note 7, at 215.

107 Sec Report of the International Law Commission on the Work of Its Thirty-third Session, UN GAOR, 36th Sess., Supp. No. 10, at 158, 168, UN Doc. A/36/10 (1981) (commentary on draft of the 1983 Vienna Convention, supra note 7) [hereinafter ILC Commentary].

108 See Menon, supra note 65, at 160; Oeter, supra note 1, at 86; N, Malcolm. Shaw, , State Succession Revisited, 1994 Fin. Y.B. Int’l L. 34, 93 Google Scholar; Streinz, supra note 7, at 215.

109 1983 Vienna Convention, supra note 1, Art. 41.

110 The ILC considered the concept of “localized debts” too ambiguous for application in practice, see ILC Commentary, supra note 106, at 205, 235. For a critical account, see Streinz, supra note 7, at 215.

111 See further Nathan, supra note 7, at 504.

112 1983 Vienna Convention, supra note 7, Art. 20; Menon, supra note 65, at 123.

113 Succession Agreement, supra note 12, Annex D, Art. 1 (c).

114 This principle is recognized by some authors as reflecting customary law. Marija Oblak-Carni & Borut Bohte, Succession to the Archives of the Former SFR Yugoslavia, in Succession of States, supra note 3, at 171, 176.

1151983 Vienna Convention, supra note 7, Art. 31 (1) (a).

116 Menon, supra note 65, at 136.

117 The provision reads:

Succession Agreement, supra note 12, Annex D, Art. 4.

118 Id., Annex D, Art. 6. Note also Article 149 of the 1982 Convention on the Law of the Sea, which provides that all objects of an archaeological and historical nature found in the International Seabed Area are to be preserved or disposed of for mankind as a whole, “particular regard being paid to the preferential rights of the State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin.” United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Art. 149, 1833 UNTS 397.

119 For a full account, see 1 D. P. O’Connell, State Succession in Municipal Law and International Law 239 (1967).

120 Settlers of German Origin in the Territory Ceded by Germany to Poland, 1923 PCI] (ser. B) No. 6, at 36 (Sept. 10).

121 For a critical account, see Lan Brownlie, Principles of Public International Law 652 (5th ed. 1998).

122.Accordingly, Article 33 provides, for example, that “State debt” means “any financial obligation of a predecessor State arising in conformity with international law towards another State, an international organization or any other subject of international law.” 1983 Vienna Convention, supra note 7, Art. 33 (emphasis added). For further analysis, see Streinz, supra note 7, at 212.

123 1983 Vienna Convention, supra note 7, Art. 6. In the context of debts, see also Article 36, which states: “A succession of States does not as such affect the rights and obligations of creditors.”

124 Jürgen Oesterhelt, Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, in 4 Encyclopedia of Public International Law, supra note 4, at 1304, 1305; Streinz, supra note 7, at 213. Recent doctrine supports the view that even purely financial claims of private persons may be regarded as “acquired rights” protected by international law. For further discussion, see Reinisch, supra note 83, at 91.

125 Acquired rights, in O’Connell’s words, are “any rights, corporeal or incorporeal, properly vested under municipal law in a natural or juristic person and of an assessable monetary value.” 2 D. P. O’Connell, International Law 763 (1970) (emphasis omitted).

126 On the existence of such a rule, see Reinisch, supra note 83, at 88; Degan, supra note 1, at 151. See also Article 4 of Annex G to the Succession Agreement, supra note 12, which states: “The successor States shall take such action as may be required by general principles of law and otherwise appropriate to ensure the effective application of the principles set out in this Annex, such as concluding bilateral agreements and notifying their courts and other competent authorities.”

127 On the doctrine of acquired rights and pensions and salaries, see generally 1 O’Connell, supra note 119, at 465.

128 Succession Agreement, supra note 12, Annex G, Art. 2(l)(a) (emphasis added). For a similar provision, see Article 1(1) of Annex 7 to the Dayton Peace Agreement, which states:

General Framework Agreement for Peace in Bosnia and Herzegovina, Dec. 14, 1995, Bosn. & Herz.-Croat.-Fed. R. Yugo., Annex 7, Art. 1(1), 35 ILM 75 (1996) [hereinafter Dayton Agreement].

129 See also Succession Agreement, supra note 12, Annex G, Art. 3 (“The successor States shall respect and protect rights of all natural and juridical persons of the SFRY to intellectual property, including patents, trade marks, copyrights, and other allied rights (e.g., royalties) and shall comply with international conventions in that regard.” ).

130 Degan, supra note 1, at 180.

131 See Stahn, Carsten, Die verfassungsrechtliche Pflicht zur Gleichstellung der drei ethnischen Volksgruppen in den bosnischen Teilrepubliken—Neue Hoffnungfur das Friedensnwdell von Dayton? 60 Zeitschrift Für Ausländisches Öffentliches Recht Und Völkerrecht 663, 675 (2000)Google Scholar.

132 The provision reads: “In determining the lawful owner of any property, the Commission [for Displaced Persons and Refugees] shall not recognize as valid any illegal property transaction, including any transfer that was made under duress, in exchange for exit permission or documents, or that was otherwise in connection with ethnic cleansing.” Dayton Agreement, supra note 128, Annex 7, Art. 12(3), 35 ILM at 140.