CHAPTER 4

STATE SUCCESSION

By ‘State succession’ is meant the substitution of one State by another over a territory.  For example, India succeeded Britain following the exit of Britain from India.   It signifies transfer of rights and duties from one international person to another in consequence of a territorial change.

Oppenheim lays down that ‘a succession of an international person takes the place of another international person, in consequence of certain changes in the latter’s condition.

The Vienna Convention on Succession of States in Respect of Treaties of 1978 defines State succession likewise by stating under Article 2(1)(a)

“as the replacement of one State by another in the responsibility for the international relations of territory. Thus, a case of succession arises only when one subject of International Law enters into rights of another or so called enters into the shoes of another.

The definition applies to all the cases of a State succession except to that of mandate or trust territory when it is not sovereignty but a special type of legal competence is replaced.

 A State which has replaced another is called the ‘successor State’ or in some cases, ‘new State’. However, the expressions ‘successor State’ and ‘new State’ are not synonymous. The former is wider in application. The term new State signifies a State which has arisen from succession where a territory, which previously formed part of an existing State, has become an independent State. The State which has been replaced is known as the ‘parent’ or ‘predecessor State’.

            The idea of a succession of international persons was introduced into International Law by Grotious as a corollary of the rule of Roman Civil Law by which an heir became the successor in law of the deceased persons was clothed with the latter’s rights and obligations.

Kinds of State Succession:

State succession may occur in a number of ways, for instance dismemberment of an existing State, secession, annexation, cession, merger and decolonization of all or parts of an existing State. The above may be divided broadly into universal succession and partial succession.

(1)        Universal Succession

 Universal succession in case of annexation: In cases, where the personality of the predecessor State is completely destroyed, and is absorbed by another international person, the succession is termed ‘universal’ or total. It may take place either through voluntary merger, or through annexation or through subjugation. Thus, it was total succession when the South African Republic was annexed by Great Britain in 1901, Korea, by Japan in 1910, Austria by Germany in 1938. Take the hypothetical example of Ukraine being absorbed by Russia making the case for universal succession. 

Universal succession in case of merger:  Universal succession also takes place when a State voluntarily merges with another State. Unification of Germany with the result of the merger of German Democratic Republic with the Federal Republic of Germany in 1990 (unification of west & east Germany), is also an instance of universal succession.

Further, Oppenheim says that ‘when a State breaks up into parts which either become separate international persons of their own or are annexed by surrounding international persons, is also a case of universal succession.

It may be noted that in such a case, the succession which takes place cannot be called universal because, here, the successor States succeed not to all the rights and obligations of its predecessor, but only to a part thereof. The remaining part passes to other successor State or States. Where substitution is not complete, but partial, it cannot be aptly termed universal succession.     In short, we can say that universal succession mainly takes place through the instance of ANNEXATION or MERGER.     

(2)        Partial Succession:

When a part of the territory is severed from the parent State (Pakistan separated from India) or (Bangladesh severed from Pakistan) and personality is affected only to the extent by which the territory is transferred, what results is partial succession.

Instances of partial succession : cession, secession etc… Partial succession takes place, for instance, either by secession, i.e., separation from the parent State, or by cession, or by conquest and annexation of a part, or by dismemberment i.e., when a State is replaced by two or more States. Secession of Estonia, Lativia and Lithuania in 1991 from the U.S.S.R. and of Slovania and Croatia from Yugoslavia in 1992 are the examples of partial succession. Further, replacement of the Soviet Union by 15 sovereign States now constitute central Asia, in December 1991 and the replacement of Czechoslovakia by Czech Republic and Slovak Republic on January 1, 1993 are the examples of the partial succession.

However, in those cases of succession where the loss of the territory is considerable even though, it had occurred by way of dismemberment of a state or where a State loses certain essential portion of the territory, it may mean the dissolution or end of the parent State. For instance, following the secession of Slovania, Macedonia and Croatia and later of Bosinia and Herzegovina in 1992, the Federal Republic of Yugoslavia lost a considerable part of its territories. It was regarded that the personality of the Federation of Yugoslavia has come to an end. It was not permitted to be seated as a continuing member of the United Nations.

 Those cases are also referred to partial succession where a full sovereign State loses part of its independence through entering into a federal Sate, or coming under suzerainty or under a protectorate, when a not fully sovereign State becomes fully sovereign.

It is to be noted that in both types of State succession there is a common factor, i.e., one or more sovereigns substitute for another; and therefore, the distinction is merely an abbreviated way of defining the extent of the change and the transmission of the rights and obligations of the old State to the new State.

State Succession – Voluntary and by Revolt:

Universal as well as partial succession may take place either voluntarily or by revolt.

 When the replacement is peaceful, disruption of legal continuity is minimized by mutual adjustment. One of such methods is the conclusion of ‘inheritance’ or ‘devolution’ agreement which is concluded between the predecessor State and the successor State. Under the agreement, the latter agrees that the rights and obligations of the former shall devolve upon it.

It is to be noted that inheritance agreements have been concluded very frequently between the predecessor and the successive States, particularly, in cases of emergence of a dependent territory into a sovereign State after the Second World War.

But where the change occurs through a revolt, as in the case of Bangladesh, the gap between the predecessor State and the successor State is not bridged. The result is that the transferred territory ‘quickly becomes a prey to chaos and anarchy’. Moreover, the parent state seldom enters into succession or inheritance agreements with the successor state.

Succession of State and Government- the difference

The expression ‘succession of State’ is different from that of ‘succession of the Government’. In the latter, personality of a State, in contrast to a case of succession of State, is not affected, but a change occurs either in the organization of the Government or in some constitutional structures of a State. The government acts as an agent of a State viewed as a person. Phillimore says:

It (State) may change its form of civil constitution or government from a Republic to a limited monarchy, from Aristocracy to a Despotism, or to any imaginable shape, but it does not thereby lose its personality.

By a change in the government, the continuity of State’s personality is neither disrupted, nor does it bring about any juridical change in the State.

 Its rights and obligations are generally continued by virtue of the continuity of the personality. Thus, the succession of a government by another government does not pose much problem. Where the change occurs by peaceful and constitution means the problem is minimized. The succeeding government generally takes over all the rights and liabilities of its preceding government. However, in those cases, where the change occurs through a coup d’etat, some problems arise as to the rights and obligations of the preceding government.

Theories of State Succession

(1)        Universal Succession Theory or CONTINUITY THEORY

The earliest doctrine of State succession treats the process as the substitution of one State for another. According to this view, the successor State enjoys all the rights and discharges all the obligations of its predecessor. The new State is regarded as a direct heir of its predecessor’s personality in the same way as the heirs continued the personality and legal relations of the deceased in private law. This theory may be described as the doctrine of universal Succession because all the rights and duties of the predecessor pass ipso facto to the successor as elements of the estate. The idea of the succession in this sense has been derived from Roman Law, where the heir took up the person of the deceased and stepped into all his rights and liabilities. The Roman Law notion of succession upon death into the field of State succession in International Law was first introduced by Grotius and was adopted by Pufendorf and Vattel.

CRITICISM:

The theory of Universal Succession suffers from a number of defects. It has been assailed by many writers on several grounds.

Firstly, the analogy of the succession of private law has been characterized as inaccurate. In the domain of private law, the concept involved an idea of compulsory representation whereas, according to Wheaton, in case of State succession, it was not so.

 Secondly, there is, in his view, an apparent defect too, inasmuch as rights and duties of individuals and those of States are not comparable in the sense that the former are personal to a real being, and the latter to a fictional one.

Thirdly, according to this theory, the successor State would have to be regarded as bound by all kinds of treaties including personal and commercial treaties as well as all the debts and contracts of the predecessor State. To discharge such obligations which were, exclusively personal was, to say the least, a matter of great inconvenience for the successor. In practice, States have not considered themselves to have remained bound by them.          

(2)        Continuity Theory:         

Suffering as it did from such shortcomings, the Roman Law theory of State succession did not find acceptance and could not be expected to become transformed into practice by the States. These defects have led Max Huber to contribute another theory which he has referred to continuity or universal succession theory.

 According to him the notion of succession is a general one in law, and belongs exclusively neither to private nor to public law. Succession is substitution plus continuation. The successor steps into the place of the predecessor and continues his rights and obligations so far the succession of private and public law agree. Thus the successor State firstly, substitutes the personality of its predecessor and secondly, takes all the rights and obligations of the predecessor as a bundle of jura (rights & duties) All the benefits and burdens of the predecessor pass to the successor State. However, the new State does not discharge those obligations of the predecessor which are essentially political in character. This doctrine was followed by Westlake in toto.

CRITICISM:

The theory has been criticized on several grounds. Firstly, in cases of cession, this doctrine becomes quite inapplicable. According to wheaton, the State which carries out the cession remains in existence, and is clearly liable to other States for any obligations which it has undertaken; it would be absurd to contend that by ceding territory to a third party a State could evade its obligations to a State with which it was in treaty agreement. Secondly, this theory appears to be quite inconsistent with the practice of the States. Rights and obligations of the predecessor State are not transferred unless there is a treaty agreement. Thus conquering States act on the basis of taking the utmost that they can acquire by conquest and admitting the minimum of obligation. Thirdly, whatever succession the succession States admit is not as of any right by ex-gratia, and they exercise in the freest manner the right to modify even those obligations which they recognize in any way.

(3)        Negative Theory:

The lack of correspondence between the universal succession theory and international practice gave rise to another theory which is altogether different from the above theories. According to this view, the successor State does not succeed to the personality of the predecessor. It is contended that the sovereignty of the predecessor State over the absorbed territory is abandoned. Accordingly, the successor State exercises jurisdiction over the territory not by virtue of a transfer of power from its predecessor, but because it has acquired the possibility of expanding its own sovereignty in the manner dictated by its own will. The succeeding State is in no way bound to respect the rights and obligations of the State which has ceased to exist. International personality of the defunct State disappears with its extinction. The successor State starts its life in the form of the ‘clean slate’ principle, under which new State acquire sovereignty free from incumbrances created by the predecessor sovereign. The theory has evoked criticism. Although, according to this theory succession involves a replacement of sovereignty, this should not mean that International law imposes no obligations upon the new sovereign. The change of sovereignty does not mean an automatic collapse of the legal system. There are certain rights as well as obligations which are discharged by the successor State, on the basis of equity, justice and reasonableness. It becomes the duty of the State to discharge the obligations since it accepts the benefits attached to it. (take the example of climate change) This is a rule which appears to human conscience. Moreover, negative theory does not solve any of the problems which are bound to arise on change of sovereignty.

            It appears, therefore, that no theory can provide solution to all the problems of State succession. Successor States may apply different theories in different cases or at different times after taking an account of all the special features presented by the succession itself. Hence, each category of legal events should be considered separately and no single theory can fulfill the needs for all occasions.

Law of State Succession

In order to avoid the complexities which, arise from a disruption of legal continuity, certain rules of law have emerged which constitute what may be described as ‘the law of State succession.’ This branch of law is based mainly on the principles of equity, reason and justice.

 When a State takes the place of another, the new State is not obliged to fulfill the obligations of the predecessor State, because usually there is no such contract. However, equity would not permit such complete freedom to the successor State. It is evidence from judicial decisions that justice and reasonableness are equally important in determining the rules of State succession.

            The United Nations, acknowledge that the problem of State succession would seem to deserve more attention in the scheme of codification. Upon the request of certain eminent International Law jurists, the International Law Commission had decided in its First Session, held in 1949, to formulate through codification the entire law on ‘Succession of States and Government’. At the time, the topic was not given priority by the Commission.

 However in 1967, the Commission made arrangements for the work on the topic of State succession and Government. The topic was divided into three separate headings: (1) Succession in Respect of Treaties; (2) Succession in Respect of Rights and Duties resulting from sources other than Treaties; and (3) Succession in respect of membership of international organizations. The Commission on the lines of the above division decided to frame the entire law of the State succession which has become by then, an urgent need of the international community.

 A Convention was formulated in the year 1978 on ‘Succession in Respect of Treaties’ whereby the rules regarding the succession to treaties were made.

 Later, on April 7, 1983, Vienna Convention on Succession of States in respect of State Property, Archives and Debts has been concluded in 1983. A study of the topic of succession in respect of membership of international organization has been left aside for the time being.

Consequences of State Succession

The problem of State succession is one of the most disputed areas of international law due to divergent State practice and the view of jurists. With the extinction of an international person, rights and duties of a State as a person disappear. But certain rights and duties do devolve upon the successor State. Some of the consequences of a succession of States are as follows:

(1)     Treaties

The effect of change of sovereignty in relation to treaties has always been a matter of controversy because of its different varieties, and of the different circumstances under which they are concluded. No single answer could possibly be given to all the categories of treaties. The effect of succession of States on different kinds of treaties are as follows:

1. Personal Treaties (or Political Treaties) – Treaties which are concluded due to the personal influence of the contracting parties such as those relating to peace, alliance, mutual assistance and friendship, neutrality, guarantee, non-aggression and of pacific settlement are not binding on the successor States. Oppenheim says that no succession takes place with regard to rights and duties of the extinct State arising from its political treaties.

 Formerly, they were regarded as ending with the extinction of the personality of a State, however, at present this rule has been considerably modified. The successor State, generally, continues all those treaties which conform with its interests and suits to it in the changed circumstances. Thus, it is left open to the discretion of the successor State to pick and choose from amongst those which it inherits.  

(b)       Commercial Treaties  

Commercial treaties, like the political treaties are also not binding on the successor State. Only those commercial treaties are assumed which can be reconciled with the new order of things, otherwise they are generally extinguished.

(c)        Administrative Treaties – Administrative treaties such as treaties of judicial assistance, avoidance of double taxation and extradition treaties do contain political elements, but they are different from political treaties stricto sensu. The conclusion of administrative treaties is motivated by the desire of having proper administration of justice and in some cases for the suppression of crimes. The continuation of such treaties depends upon the discretion of the successor States. However, it is desirable, in order to have an effective international judicial administrative system and in order to suppress crime that such treaties are continued by the successor State.     

(d)       Dispositive Treaties – A dispositive treaty is an international agreement that involves the transfer of territory or the creation of permanent rights to a territory. It creates a special character on the territory, similar to a servitude or easement in private law. Dispositive treaties’ or real or localized treaties create rights in rem. Such treaties create rights which are of permanent nature and are independent of the personality of the State exercising sovereignty. There is an essential difference between a personal and a real treaty. While the former is in the nature of a contract, the latter is in the nature of conveyance(passage) An example of such a treaty can be the boundary agreement between the two sovereign states.

(i)         Servitudes – State servitudes is the term sometimes used to denote exceptional restrictions made by a treaty or otherwise on the territorial supremacy of a State by which a part or the whole of its territory is in a limited way made to serve a certain purpose or interest of another State. Thus, for example, a State may by a treaty be obliged to allow the passage of troops of a neighbouring State, or might in the interest of a neighbouring State be prevented from fortifying a certain town near the frontier. It may be noted that restrictions on sovereignty of a State is a self-imposed restriction and grant of servitude does not amount to cession of territory. Rights respecting the maintenance of river banks and international railway connections, navigation of national waterways, rights to draw on such waterways for irrigation, rights to fishing are a few other examples of such treaties. (Indus water treaty between India and Pakistan is one such example.) It has been asserted by almost all the writers that such treaties do not extinguish on the change of sovereignty. In other words, successor State remains bound by such treaties as the emergence of a State has no effect on treaties which have already taken effect.

            It can be said that in International Law a rule exists as to the continuance of servitudes.

Article 12, Para 1 of Vienna Convention of 1978 on law of treaties also lays down that a succession of State does not as such affects (a) obligations relating to the use of any territory, or to restrictions upon its use, established by a treaty for the benefit of any territory of a foreign State and considered as attaching to the territories in question; (b) rights established by a treaty for the benefit of any territory and relating to the use, or to restrictions upon the use, of any territory of a foreign State are considered as attaching to the territories in question.                  

(ii)        Frontier Agreements – Demarcation of boundary lines is another example of dispositive treaties. State practice and writings of the jurists show that they are also considered as binding on the successor State.

            Article 11 of the Vienne Convention of 1978 also lays down that a succession of State does not as such affect: (a) a boundary established by a treaty; or (b) obligations and rights established by a treaty and relating to the regime of a boundary.

Bedjaoui had rightly stated that in principle, the territory devolves upon the successor State on the basis of pre-existing boundaries.

            Although it is clear in law that a boundary established by treaty is not to be called in question by the mere fact of a succession of State, it does not follow the boundaries established by treaties are never to be questioned. In Somalia dispute both Kenya and Ethiopia stated that the colonialist boundary treaty fails to be consistent with the principle of self-determination. But the above may be treated as an exception to the rule that boundary treaties are continued by the successor State.      

(e)        Multilateral Treaties – Multilateral treaties are generally continued by the successor state because they are concluded mostly on general subjects which are beneficial to almost all the States of the international community. However, the successor State is not bound to continue such treaties in all the cases and therefore succession to multilateral treaties cannot be regarded as a general rule of international law. If a multilateral treaty is not compatible with the interest of new State, it may be extinguished.     

(2)        Membership of International Organization:

Constitutions of most of the international organizations exclude the possibility of succession, and therefore, the question of succession of membership does not arise. Each and every State is required to apply a fresh in order to become a member of such organization irrespective of the fact that its predecessor was a member of that particular organization.

Example: Indian membership in the United Nations:

When India and Pakistan became independent, a question arose as to the succession of the membership of the United Nations. (British) India was an original member of the United Nations. The Charter was signed by India on June 26, 1945 and was ratified on October 30, 1945. When India and Pakistan became new Dominions, the latter was required to apply for membership as a new member whereas India was to continue the membership of the United Nations in accordance with the Indian Independence (International Arrangements) Order of 1947. This was because, India being the predecessor sate continued the UN membership & Pakistan being the successor state had to apply afresh.  The Order was communicated to the United Nations on August 27, 1947 by the representative of India.

            A question arises as to why the new credentials were required to be submitted by the Indian representatives at all if it was regarded that India continued the juristic personality of British India? In cases where a part of the territory is seceded from a member of the United Nations, the latter is not required to sign the new credentials. Secession of a part of territory does not affect the membership in the United Nations. It appears that while the report recognized that there was a change of sovereignty in the juristic personality of India, it continued the membership of British, perhaps, because there was no precedent for this situation in the United Nations.

            The report was vehemently criticized in the General Assembly and the Security Council. The practice of the United Nations in the instant case was therefore not sound. The question of membership of India was required to be determined in accordance with the provisions of the Charter of the United Nations.

            India was also an original member of many international organizations before it acquired a Dominion Status. For instance, it was one of the ‘original members’ of the International Monetary Fund (IMF), International Bank of Reconstruction and Development (IBRD), International Labour Organization (ILO), International Civil Aviation Organization (ICAO); it was one of the ‘member nations’ of the Food and Agriculture Organization (FAO); World Health Organisations (WHO), and International Tele-communication Union and one of the ‘full members’ of the United National Educational, Social and Cultural Organisation (UNESCO). When the new Dominions were set up in India on August, 15, 1947 membership of all these international organizations devolved upon India. However, the continuance of membership was not automatic as generally occurs where a part of the territory is seceded from an existing member. India was required to submit new credentials to all these organizations perhaps on the basis of the stand taken by the United Nations.

Russian Membership in the United Nations

Similarly, when the Soviet Union was dismembered into 15 independent States in 1991, all the successor States excepting Russia and those which were already members are required to apply a fresh in order to become members of the United Nations. As to the membership of Russia it was laid that Russia being the successor of the Soviet Union is not required to apply for new membership. Russia therefore, continued the membership of the USSR in the United Nations. The above was supported by the decision of the Council of Heads of State of the Commonwealth of Independent States on December 21, 1991 and Russia continued the membership of the USSR in the United Nations including permanent membership of the Security Council and other International organizations.  

(3)        Public Property:

Vienna Convention on State Succession in respect of State Property, Archives and Debts of 1983 under Article 8 defines State Property for the purposes of the Convention as property, rights and interests which, at the date of the succession of States, were, according to the internal law of the predecessor State owned by that State. It is an established principle of International Law that the successor State takes over all the public and proprietary rights of its predecessor State.

State immovable property such as fixed military installations, prisons, airports, government offices, State hospitals and State educational institutions situated in the territory to which the succession relates, passes to the successor State. The above has been provided in the Vienna Convention of 1983.

As to State movable property connected with the territory in question is concerned the Vienna Convention of 1983 provides that movable State property of the predecessor State connected with the activity of the predecessor State in respect of the territory to which the succession of States applies shall pass to the successor State.

(4)        State Archives

Archives has been defined in the present context under Article 20 of the Vienna Convention of 1983 as all documents of whatever date and kind, produced or received by the predecessor State in the exercise of its functions which, at the date of the succession of States, belonged to the predecessor State according to its internal law and were preserved by it directly or under its control as archives for whatever purpose. Articles 21 to 24 of the Vienna Convention of 1983 provides that generally, such archives shall pass at the date of succession and without compensation and without as such affecting archives in the territory owned by a third State.

(5)        Public Debt

Public debt or State’s debt as referred by the Vienna Convention on the Succession of States in respect of State Property, Archives and Debt of 1983 has been defined as any financial obligation of the predecessor Sate arising in conformity with International Law towards another State, an international organization or any other subject of International Law. The above definition excludes the predecessor State’s debts towards private persons.

Normally, no State considers itself to remain bound by the debts and liabilities of the predecessor State. In several cases of State succession, the above principle appears to have been complied with. However, if the successor State accepts the benefits of the predecessor State, it becomes a moral obligation to accept its burden as well. On this basis, where the succession takes place peacefully, successor State assumes public debts on the basis of proportionality of benefits received. Such an arrangement is made usually in the treaties concluded between them.

(6)        Contracts:

Law relating to contract on succession of a State is not well established. State practice on this point is also not uniform. State practice suggests that succession of contracts depend upon the discretion of the successor State. However, concessionary contracts which are of the local nature, and which create permanent rights such as digging of mines, laying and running of railways, building of rocks on a river are normally respected by the successor State. In such cases, it is not the contract as such which passes on to the successor State, but what is continued are the rights acquired under it and obligations incurred. However, no general rule can be laid down in favour of succession to concessionary contracts. Each case should be decided on its merits.  

(7)        Torts: 

Claims to unliquidated damages occur where the matter in dispute has not come before the judicial authorities and the issue of compensation has to be determined by a competent court or tribunal. The successor State is not bound to assume the unliquidated damages for the torts or dielicts of the predecessor State in view of their being of personal nature. If however, the amount of the claim has become liquidated by agreement of the parties or through a judgment or award of a tribunal, the successor State may be bound to settle the claim of this liquidated claim.  

(8)        Laws: 

It is a recognized principle of International Law that law once enforced are not changed merely by the change or sovereignty over a territory. They are continued by the successor State even if they are inconsistent with the newly acquired status of a State, unless new laws are enacted by the successor State.

(9)        Nationality:   

Nationals of the predecessor State as a rule lose their nationality at the extinction of the State. They become the nationals of the successor State. However, it is desirable to give an opportunity to them to decide within a reasonable period as to whether they wish to be the nationals of the new state or of the predecessor State keeping in view of the recent developments in the rights of self-determination, in international humanitarian law and human rights. Take the case of India, at the commencement of the Constitution, the people in India and Pakistan then were given an option to decide their country of nationality.

(10)      Private Rights:

A change of sovereignty does not itself terminate private rights dependent on the previous sovereign’s laws. The practice of States tends to establish as a rule of international law the duty of a successor State to respect the acquired rights of private persons, whether proprietary, contractual or concessionary.

 

                                                                              THE END