Sprawa sukcesji traktatów w przypadku spodziewanej niepodległości Kurdystanu

Problemy Współczesnego Prawa Międzynarodowego, Europejskiego i Porównawczego 2015, t. 13, s. 180-191.

It is highly probable, though still not absolutely certain, whether Iraqi Kurdistan will soon separate from Iraq and form an independent state. Should this happen, the new Kurdi state will have to clarify the legal status of international agreements which were entered into by its predecessor. Assuming that the Kurdistan emerges through secession from Iraq or dissolution of it, it would be bound by the 1978 Vienna Convention on Succession of States in respect of Treaties and, thus, by the rule of continuity ipso iure of treaty obligations. In the case of secession, however, the Vienna Convention does not reflect the prior international practice and subsequent practice diverges from it, either. Therefore, first, Kurdistan could argue that the process of its creation fulfills the scenario of a newly independent state and, in consequence, make use of a clean slate rule and the right to choose treaties that it wants to continue. Secondly, invoking the existence of international practice that remains incompatible with the provisions of the Convention, Kurdistan could ”join” that practice by-passing (through the unilateral acts of notifications or the actual conduct) the conventional rules as outdated, inaccurate and not corresponding to the needs of states. The third way, would be to accept the Convention’s status quo and resort to the flexibility mechanisms embodied in the Convention. They allow to reject succession of a treaty if it would be incompatible with the object and purpose of that treaty or to invoke the rebus sic stantibus clause. Above all, however, it be would be advisable to take advantage of the possibility to depart from the conventional regime by conducting direct consultations with other parties and enter into agreements with them. This way may be particularly useful for the succession to bilateral treaties.

Implementacja dyrektywy 2015/637 o ochronie konsularnej w nowej ustawie - Prawo konsularne

Polskie prawo konsularne w okresie zmian / redakcja naukowa: Wojciech Burek, Paweł Czubik ; recenzent: Karol Karski. Warszawa : Ministerstwo Spraw Zagranicznych RP, 2015, s. 146-162.