Sudan Bilateral Investment Treaties and South Sudan: Musings on State Succession to Bilateral Treaties in the Wake of Yugoslavia's Breakup
Published 17 April 2014
Introduction
This article aims at shedding some light on a crucial question: do the Sudan BITs apply to South Sudan? This article starts off with a snapshot of South Sudan's actions and statements regarding foreign investment while also looking into whether other States Parties to Sudan BITs have reacted to South Sudan's independence in respect of the Sudan BITs. The first part of this article ends by noting the lack of any indication either by South Sudan or other States Parties to Sudan BITs as to whether the Sudan BITs should or should not continue with respect to South Sudan.
The second part of this article focuses on the following question: what should we make of the silence of South Sudan and other States Parties to Sudan BITs in respect of the Sudan BITs? In providing a preliminary answer to this question, this article draws upon international law as applied to State succession to bilateral treaties. Drawing on work undertaken by the International Law Commission (ILC), on the Vienna Convention on Succession of States in Respect of Treaties, on State practice and on scholarly publications, this article argues that overall customary international law and State practice have provided for a nuanced - one might say piecemeal - approach to State succession with respect to bilateral treaties whereby the continuation of a bilateral treaty between the successor State and the other State Party results from mutual consent, either explicit or tacit.
The final part of this article is dedicated to analysing the treaty practice of France and the Netherlands, which had both signed BITs with Sudan and the Former Socialist Federal Republic of Yugoslavia (SFRY), as it pertains to BITs following the dissolution of the former SFRY. The practice followed by France and the Netherlands in respect of a previous similar situation of State succession will lead us to conclude that neither France nor the Netherlands can be said to have consented to continue Sudan BITs with South Sudan, even provisionally, in the absence of explicit consent to that effect.
The author ends this article by arguing that notwithstanding the controversial, inefficient and ultimately rebuttable presumption of treaty continuity, and in line with usual State practice, South Sudan and other States Parties to Sudan BITs should engage in diplomatic exchanges to clarify the continuity or not of the Sudan BITs with respect to South Sudan.
Footnotes omitted from this introduction.