State Succession

Content

1. Introduction

2. Definition of state succession

3. Two convention of State Succession

4. Kinds of state succession

5. Continuity and succession

6. Succession to treaties

 Absorption and merger

 Cession

 Secession

 Newly independent states

 Dissolution of states

7. Succession with respect to matters other than treaties

8. Succession to assets and debts

9. State succession and nationality

10. Case References

11. References

12. Conclusion
Introduction

Since World War II, State succession has become increasingly important as it affects more States
and more legal relationships than ever before. Approximately 100 new States emerged with the
end of decolonization. Recently, Germany reunified, while the Soviet Union, Yugoslavia and
Czechoslovakia dissolved. These changes affected more legal relationships than the earlier
decolonization process. These newly formed European States are more integrated into the
political, economic and legal global framework and are of greater importance, than were the
former dependent territories that became new States

Definition of state succession

Succession occurs when one state ceases to exist or loses control over part of its territory, and
another state comes into existence or assumes control over the territory lost by the first state. A
central concern in this instance is whether the international obligations of the former state are
taken over by the succeeding state. When the state ceases to exist, however, the treaties it
concluded generally are terminated and those of the successor state apply to the territory. These
include political treaties like alliances, which depend on the existence of the state that concluded
them. But certain obligations, such as agreements concerning boundaries or other matters of
local significance, carry over to the successor state. More difficult to determine is the continuing
legality of treaties granting concessions or contract rights.

According to Article 2 of both Vienna convention of State Succession “State Succession may
be briefly defined as the replacement of one state by another in the responsibility for the
international relations of territory.”

According to Openheim:
"A succession of international persons occurs when one or more international person, I
consequence of certain changes in the letter's conditions."
According to Brownlie: "State succession arises when there is definite replacement of one state
by another in respect of sovereignty over a giver territory, in confirming with international law."

Two convention of State Succession

There are two relevant Conventions, the Vienna Convention on Succession of States in Respect
of Treaties, 1978, which entered into force in 1996, and the Vienna Convention on Succession of
States in Respect of State Property, Archives and Debts, 1983, which is not yet in force. State
succession is essentially an umbrella term for a phenomenon occurring upon a factual change in
sovereign authority over a particular territory. Much will depend upon the circumstances of the
particular case, for example whether what has occurred is a merger of two states to form a new
state; the absorption of one state into another, continuing state; a cession of territory from one
state to another; secession of part of a state to form a new state; the dissolution or
dismemberment of a state to form two or more states, or the establishment of a new state as a
result of decolonization.

Kinds of state succession

I. Universal succession:
If the legal identity of a community is completely destroyed it will be called universal
succession. It takes place when one state is completely absorbed in another state either through
subjugation or voluntary merger.
II. Partial succession:
If the territory is lost while personality and legal responsibility remain unimpaired, the process is
described as partial succession. it takes place when a part of state revolts and after achieving
freedom becomes a separate international person.

Continuity and succession

Questions relating to continuity and succession may be particularly difficult. Where a new entity
emerges, one has to decide whether it is a totally separate creature from its predecessor, or
whether it is a continuation of it in a slightly different form. For example, it seems to be accepted
that India is the same legal entity as British India and Pakistan is a totally new state.Yugoslavia
was generally regarded as the successor state to Serbia,and Israel as a completely different being
from British mandated Palestine. Cession or secession of territory from an existing state will not
affect the continuity of the latter state, even though its territorial dimensions and population have
been diminished. Pakistan after the independence of Bangladesh is a good example of this. In
such a case, the existing state remains in being, complete with the rights and duties incumbent
upon it, save for those specifically tied to the ceded or seceded territory. One method of
unification is by the creation of a totally new state, such as the merger of the Yemen Arab
Republic and the People’s Democratic Republic of Commonwealth of Independent States. Under
the agreement between the two states of 22 April 1990 the establishment of the Republic of
Yemen was accomplished by way of a merger of the two existing states into a new entity with a
new name. Following the conclusion of the Second World War, Germany was divided into the
US,USSR,UK and French zones of occupation and a special Berlin area not forming part of any
zone.

Succession to treaties

The importance of treaties within the international legal system requires no repetition. Treaties
are founded upon the pre-existing and indispensable norm of pacta sunt servanda or the
acceptance of treaty commitments as binding. Treaties may fall within the following categories:
multilateral treaties, including the specific category of treaties concerning international human
rights; treaties concerned with territorial definition and regimes; bilateral treaties; and treaties
that are treated as ‘political’ in the circumstances. The rules concerning succession to treaties are
those of customary international law together with the Vienna Convention on Succession of
States in Respect of Treaties, 1978

 Categories of treaties: territorial, political and other treaties

Treaties may for succession purposes be generally divided into three categories. The first relates
to territorially grounded treaties, under which rights or obligations are imposed directly upon
identifiable territorial units. The prime example of these are agreements relating to territorial
definition. Waldock, in his first Report on Succession of States and Government in Respect of
Treaties in 1968, declared that ‘the weight both of opinion and practice seems clearly to be in
favor of the view that boundaries established by treaties remain untouched by the mere fact of a
succession., while Bedjaoui has noted that ‘in principle the territory devolves upon the successor
State on the basis of the pre-existing boundaries’.

A succession of States does not as such affect:

(a) A boundary established by treaty; or (b) Obligations and rights established by a treaty and
relating to the regime of a boundary. The International Court dealt with succession to boundary
treaties generally in the Libya/Chad case, where it was declared that ‘once agreed the boundary
stands, for any other approach would vitiate the fundamental principle of the stability of
boundaries.

political

It also noted that since the 1977 treaty in question in that case between Hungary and
Czechoslovakia established inter alia the navigational regime for an important section of an
international waterway, a territorial regime Apart from the categories of territorial and political
treaties, where succession rules in general are clear, other treaties cannot be so easily defined or
categorized for succession purposes and must be analyzed separately.

International human rights treaties

There is no doubt that human rights treaties constitute a rather specific category of treaties. They
establish that obligations are owed directly to individuals and often provide for direct access for
individuals to international mechanisms. The practice of the UN Human Rights Committee with
regard to the Yugoslav tragedy is particularly interesting here .After the conclusion of its 45th
session, the UN Human Rights Committee requested special reports with regard to specific
issues (for example, the policy of ‘ethnic cleansing’, arbitrary detention, torture and advocacy of
hatred) from Bosnia and Herzegovina, Croatia and the Federal Republic of Yugoslavia (Serbia
and Montenegro), noting ‘that all the peoples within the territory of the former Yugoslavia are
entitled to the guarantees of the Covenant’.In its General Comment No. 26 of October 1997, the
Committee took the view that ‘once the people are accorded the protection of the rights under the
Covenant, such protection devolves with territory and continues to belong to them,
notwithstanding change in government or State succession’.

 Absorption and merger

Where one state is absorbed by another and no new state is created (such as the 1990 accession
to the Federal Republic of Germany of the L¨ander of the German Democratic Republic), the
former becomes extinct whereas the latter simply continues albeit in an enlarged form. The basic
situation is that the treaties of the former, certainly in so far as they may be deemed ‘political’,
die with the state concerned, although territorial treaties Other treaties are also likely to be
regarded as at an end. Article 31(1) of the Vienna Convention on Succession to Treaties provides
that where two or more states unite and form one successor state, treaties continue in force unless
the successor state and the other state party or states parties otherwise agree or it appears that this
would be incompatible with the object and purpose of the treaty or would radically change the
conditions for its operation..In the case of mergers to form a new third state, the formulation in
article 31 is more relevant and acceptable. For example, in the cases of both the Egypt–Syria
merger to form the United Arab Republic in 1958 and the union of Tanganyika and Zanzibar to
form Tanzania in 1964.

 Cession

When part of the territory of one state becomes part of the territory of another state, the general
rule is that the treaties of the former cease to apply to the territory while the treaties of the latter
extend to the territory. When, for example, the US annexed Hawaii in 1898, its treaties were
extended to the islands and Belgium was informed that US–Belgium commercial agreements
were thenceforth to be applied to Hawaii also. Similarly it was held that after 1919, German
treaties would not apply to Alsace-Lorraine, while French treaties would thereafter be extended
to that territory.

 Secession

Secession from an existing state to form a new state or states .The factual situations out of which
a separation or dismemberment takes place are many and varied. They range from a break-up of
a previously created entity into its previous constituent elements, as in the 1961 dissolution of the
United Arab Republic into the pre-1958 states of Egypt and Syria or the dissolution of the
Federation of Mali, to the complete fragmenting of a state into a variety of successors not being
co-terminus with previous territorial units, such as the demise of Austria-Hungary in 1919.
Where there is a separation or secession from an independent state which continues, in order to
create a new state. State practice has essentially reinforced the basic proposition. WhenBelgium
seceded from the Netherlands in 1830, it was deemed to start international life with ‘a clean
slate’ and the same approach was adopted with regard to the secession of Cuba from Spain in
1898 and that of Panama from Colombia in 1903.
  Newly independent states

The post-Second World War period saw the dismantling of the overseas European empires.
Based in international legal terms upon the principle of self-determination, which was founded
upon a distinction between such territories and the metropolitan authority, decolonization
produced a number of changes in the international legal system. The Vienna Convention on
Succession to Treaties sought to establish a special category relating to decolonized territories.
These were termed ‘newly independent states’ and defined in article 2(1) as successor states ‘the
territory of which immediately before the date of the succession of states was a dependent
territory for the international relations of which the predecessor state was responsible’. This
approach was deemed to build upon the traditional ‘clean slate’ principle applying to new states
created out of existing states, such as the United States and the Spanish American Republics
when they had obtained independence. This was also consistent with the view taken by the UN
Secretariat in 1947 when discussing Pakistan’s position in relation to the organisation, where it
was noted that ‘the territory which breaks off, Pakistan, will be a new state; it will not have the
treaty rights and obligations of the old state’.

 Dissolution of states

Where an existing state comes to an end as an international person and is replaced by two or
more other states, it is accepted that political treaties will not continue but that territorially
grounded treaties will continue to attach to the territories in question now subject to new
sovereign arrangements. Examples would include Colombia in 1829–31; Norway/Sweden in
1905; the United Arab Republic in 1960; the Mali Federation in 1960; the Federation of
Rhodesia and Nyasaland in 1963129 and the Czech and Slovak Federal Republic in 1992. Article
34 of the Vienna Convention provides for treaties in force for all or part of the predecessor state
to continue in force with regard to the specific territory unless the states concerned otherwise
agree or it appears from the treaty or is otherwise established that the application of the treaty
would be incompatible with the object and purpose of the treaty or would radically change the
conditions of its operation.

Succession with respect to matters other than treaties

Succession to membership of international organisations will proceed (depending upon the terms
of the organisation’s constitution) according to whether a new state is formed or an old state
continues in a slightly different form. In the case of the partition of British India in 1947, India
was considered by the UN General Assembly as a continuation of the previous entity, while
Pakistanwas regarded as a new state, which had then to apply for admission to the organisation.
Upon the merger of Egypt and Syria in 1958 to form the United Arab Republic, the latter was
treated as a single member of the United Nations, while upon the dissolution of the merger in
1961, Syria simply resumed its separate membership of the organisation. In the case of the
merger of North and South Yemen in 1990, the new state simply replaced the predecessor states
as a member of the relevant international organizations. Where the predecessor state is dissolved
and new states are created, such states will have to apply anew for membership to international
organizations. For example, the new state of the Czech Republic and Slovakia were admitted as
newmembers of the UN on 19 January 1993.

The Sixth (Legal) Committee of the General Assembly considered the situation of new states
being formed through division of a member state and the membership problem and produced the
following principles:

1.That, as a general rule, it is in conformity with legal principles top resume that a state which is
a member of the Organization of the United Nations does not cease to be a member simply
because its Constitution or frontier has been subjected to changes, and that the extinction of the
state as a legal personality recognized in the international order must be shown before its rights
and obligations can be considered thereby to have ceased to exist.

2. That when a new state is created, whatever may be the territory and the populations which it
comprises and whether or not they formed part of a state member of the United Nations, it cannot
under the system of the Charter claim the status of a member of the United Nations unless it
hasbeen formally admitted as such in conformity with the provisions of the Charter.

3. Beyond that, each case must be judged according to its merits.

Succession to assets and debts

The Vienna Convention on Succession to State Property, Archives and Debts, 1983 is not
currently in force, although most of its provisions (apart from those concerning ‘newly
independent states’) are reflective of custom. The primary rule with regard to the allocation of
assets (including archives) and debts in succession situations is that the relevant parties should
settle such issues by agreement. Virtually all of the rules that are formulated, for example in the
Vienna Convention, 1983, are deemed to operate only where such agreement has not taken
place.In addition, the Arbitration Commission on Yugoslavia declared in Opinion No. 9 that ‘the
successor states to the SFRY must together settle all aspects of the succession by agreement’ and
reinforced this approach in Opinion No. 14, declaring that ‘the first principle applicable to state
succession is that the successor states should consult with each other and agree a settlement of all
questions relating to the succession’.

 State property.

Article 8 of the Vienna Convention, 1983 provides that state property for the purposes of the
Convention means ‘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’ and this can be
taken as reflective of customary law. The classic rule postulates that only the public property of
the predecessor state passes automatically to the successor state, but this, of course, raises the
question of the definition of public property. The Arbitration Commission on Yugoslavia
reiterated this position by declaring that ‘to determine whether the property, debts and archives
belonged to the SFRY, reference should be had to the domestic law of the SFRY in operation at
the date of succession’. The Yugoslav Agreement on Succession Issues, 2001, however, provides
that, ‘It shall be for the successor state on whose territory immovable and tangible movable
property is situated to determine, for the purposes of this Annex, whether that property was state
property of the SFRY in accordance with international law.. This 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 o states applies shall pass to the successor state’.

 State archives

Archives are a crucial part of the heritage of a community and may consist of documents,
numismatic collections, iconographic documents, photographs and films.In this general context,
one should also note articles 149 an 303 of the 1982 Convention on the Law of the Sea. The
former provides that all objects of an archaeological and historical nature found in the
International Seabed Area are to be preserved or disposed of for the benefi of mankind as a
whole, ‘particular regard being paid to the. Article 20 of the 1983 Vienna Convention provides
that state archives in the present context means: 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. The same
provisions apply in the case of a dissolution of a state, which is replaced by two or more
successor states, in the absence of agreement, with the addition that other state archives are to
pass to the successor states in an equitable manner, taking into account all relevant
circumstances. These principleswere confirmedin theYugoslavAgreement on Succession Issues,
2001,216 while it was additionally provided that archives other than those falling within these
categories are to be the subject of an agreement between the successor states as to their equitable
distribution. Articles 28, 30 and 31 also contain a paragraph explaining that the relevant
agreements over state archives ‘shall not infringe the right of the peoples of those states to
development, to information about their history and to their cultural heritage’

 Public debt

The public debt (or national debt) is that debt assumed by the central government in the interests
of the state as a whole. It constitutes a particularly sensitive issue since third parties are involved
who are often reluctant to accept a change in the identity of the debtor. This encourages an
approach based on the continuing liability for the debt in question and in situations where a
division of debt has taken place for that situation to continue with the successor state being
responsible to the predecessor state (where this continues, of course) for its share rather than to
the creditor directly. And as article 36 of the Vienna Convention, 1983 notes, a succession of
states does not as such affect the rights and obligations of creditors.

Public debts may be divided into national debts, being debts owned by the state as a whole; local
debts, being debts contracted by a subgovernmental territorial unit or other form of local
authority, and localized debts, being debts incurred by the central government for the purpose of
local projects or areas. Local debts clearly pass under customary international law to the
successor state, since they constitute arrangements entered into by subgovernmental territorial
authorities now transferred to the jurisdiction of the successor state and a succession does not
directly affect them. The German unification example is instructive. Article 23 of the Unification
Treaty provided that the total national budget debt of the German Democratic Republic was to be
assumed by a special Federal fund administered by the Federal Minister of Finance. The Federal
Government was to be liable for the obligations of the special fund which was to service the debt
and might raise loans inter alia to redeem debts and to cover interest and borrowing costs. The
agreement between India (the continuation of British India) and Pakistan (the new state)
provided for the responsibility of the former with regard to all the financial obligations, including
loans and guarantees, of British India. India thus remained as the sole debtor of the national debt,
while Pakistan’s share of this, as established upon the basis of proportionality relating to its share
of the assets of British India that it received, became a debt to India.

 Private rights

The question also arises as to how far a succession of states will affect, if at all, private rights. As
far as those inhabitants who become nationals of the successor state are concerned, they are
fully subject to its laws and regulations, and apart from the application of international human
rights rules, they have little direct recourse to international law in these circumstances.
Accordingly what does become open to discussion is the protection afforded to aliens by
international provisions relating to the succession of rights and duties upon a change of
sovereignty. The principle of acquired rights was discussed in a number of cases that came
before the Permanent Court of International Justice between the two world wars, dealing with the
creation of an independent Poland out of the former German, Russian and Austrian Empires.
Problems arose specifically with regard to rights obtained under German rule, which were
challenged by the new Polish authorities.

The Court held that German law would apply in the circumstances until the final transfer of the
territory and that the titles to land acquired in this fashion would be protected under the terms of
the 1919Minorities Treaty.

State succession and nationality

The issue of state succession and nationality links together not only those two distinct areas, but
also the question of human rights. The terms under which a state may award nationality are
solely within its control but problems may arise in the context of a succession. In principle, the
issue of nationality will depend upon the municipal regulations of the predecessor and successor
states. The laws of the former will determine the extent to which the inhabitants of an area to be
ceded to another authority will retain their nationality after the change in sovereignty, while the
laws of the successor state will prescribe the conditions under which the new nationality will be
granted. Actual practice is varied and much depends on the circumstances, but it should be noted
that the 1961 Convention on the Reduction of Statelessness provides that states involved in the
cession of territory should ensure that no person becomes stateless as a result of the particular
change in sovereignty. The Arbitration Commission on Yugoslavia referred in this context to the
principle of self-determination as proclaimed in article 1 of the two International Covenants on
Human Rights, 1966. The Commission stated that, ‘by virtue of that right every individualmay
choose to belong to whatever ethnic, religious or language community he wishes’. Further, it was
noted that: Article 19 provides that states parties should seek to resolve issues concerning
nationality and state succession by agreement between themselves. Article 11 stipulates that each
state concerned shall grant a right to opt for its nationality to persons concerned who have
appropriate connection with that state if those persons would otherwise become stateless as a
result of the succession of states, and that when this right has been exercised, the state whose
nationality they have opted for shall attribute its nationality to such persons. Article 20 concerns
the situation where one state transfers part of its territory to another state.

Case Reference

Case name: West Rand Central Gold Mining Company, Limited v. The King, 2 K.B. 391
[1905]

In this case the Attorney-General, on behalf of the Crown, demurred to a petition of right
presented in the month of June, 1904, by the West Rand Central Gold Mining Company,
Limited. The petition of right alleged that two parcels of gold, amounting in all to the value of
3804l., had been seized by officials of the South African Republic--1104l. on October 2 in course
of transit from Johannesburg to Cape Town, and 2700l. on October 9, taken from the bank
premises of the petitioners. No further statement was made in the petition of the circumstances
under which, or the right by which, the Government of the Transvaal Republic claimed to seize
the gold; but it was stated in paragraph 6, "That the gold was in each case taken possession of by,
and on behalf of, and for the purposes of, the then existing Government of the said Republic, and
that the said Government, by the laws of the said Republic, was under a liability to return the
said gold, or its value, to your suppliants. None of the said gold has been returned to your
suppliants, nor did the said Government make any payment in respect thereof." The petition then
alleged that a state of war commenced at 5 P.M. on October 11, 1899, that the forces of the late
Queen conquered the Republic, and that by a Proclamation of September 1, 1900, the whole of
the territories of the Republic were annexed to, and became part of, Her Majesty's dominions,
and that the Government of the Republic ceased to exist. The petition then averred that by reason
of the conquest and annexation Her Majesty succeeded to the sovereignty of the Transvaal
Republic, and became entitled to its property; and that the obligation which vested in the
Government was binding upon His present Majesty the King.

Before dealing with the questions of law which were argued before us, we think it right to say
that we must not be taken as acceding to the view that the allegations in the petition disclosed a
sufficient ground for relief. The petition appears to us demurrable for the reason that it shews no
obligation of a contractual nature on the part of the Transvaal Government. For all that appears
in the petition the seizure might have been an act of lawless violence. The allegations that A.
seized property belonging to B., and that thereupon by law an obligation arose on the part of A.
to return to B. his property, or pay its value, might be truly made in respect of any wrongful
seizure of A.'s property. We do not assent to the proposition of Lord Robert Cecil that it is
sufficient to allege what may be a ground of action if something else be added which is not
stated. Upon all sound principles of pleading it is necessary to allege what must, and not what
may, be a cause of action, and unless the obligation alleged in the present instance arose out of
contract it is clear that no petition of right could be maintained. A passage in the judgment of
Willes J. in the case of Gautret v. Egerton states this view so clearly that we think it well to quote
it. Willes J. says: "The argument urged on behalf of the plaintiffs, when analyzed, amounts to
this, that we ought to construe the general words of the declaration as describing whatever sort of
negligence the plaintiffs can prove at the trial. The authorities, however, and reason and good
sense, are the other way. The plaintiff must, in his declaration, give the defendant notice of what
his complaint is. He must recover secundum allegata et probata. What is it that a declaration of
this sort should state in order to fulfil those conditions? It ought to state the facts upon which the
supposed duty is founded, and the duty to the plaintiff with the breach of which the defendant is
charged." I need scarcely add that in dealing with a petition of right, which must be based upon
contract, that observation would of course have its full force and effect.

The former Czechoslovakia case

In the case of the former Czechoslovakia, the soon to be successor states initiated early
discussions to determine the question of succession to debts and assets, and adopted a federal
constitutional law providing a detailed set of criteria and principles for allocating both the debts
and assets.The basic principles adopted by the successor states were consistent with international
law and provided the territorial debts and assets would be allocated to the successor state on
whose territory they existed, and the national debts and assets would be allocated on a two-to-
one proportional basis. The consent of the creditor states to this allocation was then sought and
received.
In the case of the dissolution of Czechoslovakia, like the case of the former USSR, sub-state
entities participated in negotiations relating to the future allocation of debts and assets, but on the
basis they were soon to be internationally recognised successor states responsible for those debts
and assets. Notably, despite the highly decentralised political structure of the former
Czechoslovakia, it was deemed necessary for the federal legislative body, and not the Republic
level body, to establish regulations pertaining to the distribution of the former Czechoslovakia's
debts and assets.

Conclusion

States and the concept of statehood lie at the heart of international law. As Oppenheim notes,
States are the principal subjects of international law and thereby possess international personality
of the fullest kind. It is quite apparent that one cannot tackle the question of State succession.
The issue of transmission of rights and obligations from one State to another without at first
confronting the problem of statehood. Succession is predicated upon the existence of two or
more States has been resolved in a way that the issue of identity or continuity of States has been
resolved in a way that presents the international community with at least two states. In addition,
it is important conceptually to distinguish issues focusing upon statehood from those concerned
with succession in order to be able to appreciate the crucial distinction between the legal
consequences flowing from a determination as between continuity and succession.

References:

1. Malcolm N. Shaw; International_Law__6th_edition_2008; Cambridge University Press

2. Rahman Dr. Mijanur; International Law in a changing world; published by palal
prokashoni, Dhaka
3. Vienna Convention on State Succession in Respect of Treaties, 17 ILM (1978) 1488;
Vienna Convention on State Succession in Respect of Property, Archives and Debts,
1983, 22 ILM (1983) 306.
4. D. O’Connell, State Succession in Municipal and International Law, vols. I, at 3 (1968).
5. Dr. S. K Kapoor; International Law and Human rights;12th edition; Central Law Agency
Publication