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Article
Succession, the Obligation to Repair and Human Rights; The European Court of Human Rights Judgment in the Case of Bijelic v. Montenegro and Serbia
International Comparative Law Quarterly (2010)
  • Benjamin E. Brockman-Hawe
Abstract

What happens when a state breaches its international obligations and then ceases to exist? Does its obligation to repair the harm caused by the breach devolve to a new state that occupies part of the territory of an old state? Can a new state be held accountable for violations that took place before the entry into force of the treaty with respect that state? This comment examines the European Court of Human Rights’ (hereinafter 'the Court' or 'the ECHR') encounter with the law of state succession, specifically succession to treaty obligations and succession to responsibility for wrongful acts of a predecessor state. In Bijelic v. Montenegro and Serbia1 the Court held that Montenegro was to be regarded as a party to the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter 'the Convention'), as well as Protocol No. 1 thereto, from the date of its declaration of independence from the State Union of Serbia and Montenegro, and that Montenegro alone could be held responsible for violations of these instruments occurring in the territory of the State Union that began before March 2004 (the date of ratification of the Convention and Protocol 1 by the State Union) but continuing through 2009. Bijelic is not the first time the Court has been called upon to decide a question of succession to treaty obligations or responsibility, but the judgement is noteworthy for the unique approach the Court adopted to deciding each of these issues. This comment will place the decision in the larger context of Court practice with respect to both of the implicated succession issues, identify the aspects the Trial Chamber's analysis that distinguish it from its predecessors and discuss the decision of the Court in light of general and emerging trends in international human rights law. In the process, this comment will provide a uniquely thorough examination of ECHR practice with respect to succession to responsibility and identify the trends, to the extent that such trends exist, that characterize the Court's approach to this area of law.

Keywords
  • ECHR,
  • state succession,
  • human rights obligations,
  • responsibility,
  • Bijelic,
  • Montenegro,
  • Serbia
Disciplines
Publication Date
2010
Citation Information
Benjamin E. Brockman-Hawe. "Succession, the Obligation to Repair and Human Rights; The European Court of Human Rights Judgment in the Case of Bijelic v. Montenegro and Serbia" International Comparative Law Quarterly (2010)
Available at: http://works.bepress.com/benbh/7/