INTERNATIONAL LAW

AND
HUMAN RIGHTS
[NUTSHELLI

By
Dr. S. K. KAPOOR
M.A., LLM., LL.D.
Ex-Lecturer in Law, Punjab University, Chandigarh
Ex-Reader in Law, Lucknow University, Lucknow

Author Of
Contract-I, Contract-I, Public International Law,
Human Rights, Law of Torts, etc.

EIGHTEENTH EDITION

CENTRAL LAW AGENCY

30D/1, Motilal Nehru Road
ALLAHABAD-211002
 CHAP. 12 STATE SUCCESSION
(c) when sovereign State loses of its
a

or when a State accepts the part independence by the federal State

State. suzerainty or becomes a joning
protectorate of another
12 an
Principle of the Continuity of States.-The
the
dnes not affect the legal personality of the
succession of Govemment is based
principle ot the continuity of States. The change in the Govemment of a State
STATE SUCCESSION riohts and obligations of the predecessor State. The new Government succeeds to the
ammon interests of intermational Govenment. This principle is based on the
community.
aorcements will suffer a setback in case the The importance of the international
Definition.'-Oppenheim has deseribed
'State Succession' in the followin treaty obligations are disregarded in
owing consequence ot the change of Govermment of a State.
Words Connell, the treaties entered into by a State come toBul,an asendpointed out by Prof. D.P.O.
in case it is
"A succession of international person
occurs when one or more
international absorbed another Statc. This rule also applies, in a case when a
in completely
international person, in consequence of certain chano and after becoming an intemational person, refuses to part of State revolts
take place of another
persons mges its parent State. For example, Bangla Desh is not
follow the treaties entered into
by
in the latter's conditions." bound by treaties entered into
Pakistan. by
Ordinarily the of States shows that no general suceession takes plac
practice lace.
international person is extinct In the Tinoco Arbitration Great Britain.--Costa
Howeve. most of the jurists agree that when an Rica (1923), Mr. Taft
Arbitrator
disappears then some of its rights and obligations are succeeded by other internationol quoted with approval the following observation of Dr. J. B. Moore:
its place. The rule of State succession was incorporated from the
persons which take
died his rights and duties wera
.though the government changes, the nation remains, with rights and
******"

Roman Law by Grotiys. In Roman Law, when a person obligations unimpaired.. he principle of
succeeded by his successors. This principle was applied by Grotius in international law continuity of States has
entered into to develop the rules of State
important resulis. The State is bound by engagements entered into by Govermment
also. Later on certain international treaties were that have ceased to exist, the restored
govemment is generally liable for acts of the
succession. The Law of State succession is still developing. The United Natione
on 23 August 1978
usurper... the view of Mr. Taft, this Statement of law "announces the
Conference on Succession of States in respect of Treaties adopted general principle which has such universal acquiescence as to become well settled
convention known as Vienna Convention on Succession of States in Respect of Treaties
intemational law".
It may also be noted here that the term 'State succession' 1s a misnomer. It js
Rights and Duties arising out of State Succession.-(1) Political rights and
inaceurate because it is based on municipal law analogy of the actual demise of a person
duties.-No sucession takes place in respect of political rights and duties, hence
and the transmission of his rights and liabilities to his successor. The practice of States
succeeding State is not bound by the political treaties of the former State such as treaties
shows that no genegal succession takes place with the extinction of a State as an
of peace or neutrality.
international person its rights and duties as a person also disappear. However, most of the
its (2) Local rights and duties.-A genuine succession takes place in respect of local
jurists now agree that when an international person extincts, some of rights and rights and duties, such as, land, rivers, roads, railways, etc. In the case of German Setlers
obligations are succeeded by other international persons which take its place.
in Poland, Permanent Court of International Justice, in its
Kinds of State Succession.-State successions are of two types-(1) Universal advisory opinion,
held that
private rights do not end by the change of sovereignty.
Succession, and (2) Partial Succession.
(3) State property.-Article 11 of the Vienna Convention on State Property.
(1) Universal Succession.-Universal Succession takes place under the following Archives and Debts, 1983 provides that unless otherwise agreed the passing of State
Circumstances: property will take place without compensation. Article 12 provides that property, rights
and interests owned by a third State should not be affected by a succession of State
(a) when a State is completely merged with another State; either through
Article 13 asks the predecessor State to take all measures to prevent damage or desinuction
subjugation or voluntary merger, and
to State property which passes to successor State. Regarding State succession in case of
b) when a State breaksinto several parts and each part becomes a separate newly independent States, Aricle 15 allows special reference to be made to bilateral
international person. agreements between the predecessor State and the newly independent State but it shall not
(2) Partial Succession"-Partial succession takes place:- infringe the principle of the permanent sovereignty of every people over its wealth and
natural resources.
(a) when a part of the State revolts and after achieving freedom becomes a separate It may, however, be noted that Vienna Convention on State Property Archives which
international person. The breaking away of Bangla Desh and becoming a separate was adopled and signed on 8 April, 1983 has not entered into force. For becoming
international person is a glaring example of partial succession; effective it requires 15 States to be bound by it. As of August, 2009 only 7 (seven)
(b) when a part of a State is ceded to another State: States have so far ratified it. One of the main flaws of the Convention is heavy reliaace
it has been pointed out
throughout on equity as a guiding principle. Another defect is that
See also for P.C.S.
**
(1995)Q.9 (a):P.C.S. (1993) Q. 7a);:P.C.S. (1995) Q. 9a): P.C.S. (2001) Q. 76). Is unique emphasis on succession of States in simple
a case of independence, typically
See also for P.C.S. (1998) Q. 10(1v).
. PCU 1023 (Series B. No. 6).
198)
 HUMAN
RIGHTS
ICHAP. 12
INTERNATIONAL
LAW &

to be
CHAP 121 STATE SUcCESSION
06,MAR 2019
this
Convention
does not seem
usefil
guid
State
to Succession of States in respect of treaties.-On 23rd
(12)
ention known as the Vienna Convention on Succession of StatesAkgus
power.
Moreover, from lhe break up of a tate. 1978, a
from a colonial succession
resulting

settling the complex

probiems of State p in Reygect of
25 of the
Vienna
Convention on
ropert Teeaties has been adopted. This Convention entered into force on Novembex , 3995
Archives.-Article

iniegral character of oroY, Article 1 of the convention which deals with the scope of the convention provides aat it
(4) State on preserving the
1983 lays emphasis
of the convention providee is to the effects of a succession of States in
respect of treaties between States. The
Archives and Debts.
predecessor
State. Article
28
predecessor State to
dt the onvention deals with cases of succession of States under three main headings: (i)
State archives
of the
of State
archives
of the in such a man
Wly Succession in respect of part ot a territory: (i) newly independent States, i.e.. States
reproduction agreement
or appropriate determined by at
passing State should
be
as possible" from those a which emerged from former dependent teritory; and (ii) uniting and separating of States.
and equitably
successor

independent widely DeoniS While it retains from the last category of cases, the principle of de jure continuity in force
States can
benefit as
should not "infringe the right of
"each of those the two States
between their history and to their culttural at the date of the succession of States (Articles 31 and 34), it enunciates in the case of
Bilateral agreements intormation abou
development. to newly independent State the 'clean State principle' i.e., the new State's general freedom
those States to
from obligation in respect of its predecessor's treaties, a principle held to be fully
heritage. Vienna Convention on Sta..
36 of the consistent with self-deternmination. Article 16 of the convention provides that a
that of
of a State does no s
Debts'.-Article
Public newly independent State is not bound to maintain in force, or to become a party to, any
(5) State or the succession
provides that when the successor State.is a
and Debts. 1983 creditors. Further, treaty by reason only of the fact that at the date of the succession of States, the treaty was
Property Archives of
such affect the rights
and obligations
debt shall
to
the
new
State unless an agreemen
pass
in force in respect of the territory to which the succession of States relates. As regards
State Such an agreemen Article 15
State.
succession in respect of part of territory (i e., first category mentioned above).
no convention.
the
newly independent according to
every people
otherwise,
or when any territory for the
of the permanent sovereignty of provides that when part of the territory of a State. not
between two provides
States

however. "shall not

infringe the principle endanger the international relations of which a State is responsible, being part of the territory of
nor shall Us implementation
State (Article 38). In case oe State:
resources,

over its
wealth and natural that State, becomes part of the territory of another
of the newly independent
equilibria State should pass to the
economic of Treaties, 1978 was signed on
fundamental
the State debt of
the predecessor The convention on Succession of State in respect
of the temitory account the property, rights and on November 6, 1996. So far 21
states have ratified
separation of part proportion" taking into August 22, 1978 and came into force of
s u c c e s s o r State
in an "equitable
the convention. It may however, be
noted that convention has generated a lot
States (Article 40). which
to the between newly independent states (i.e., those
successor

interest pass1ng
of the view that
the succeeding States controversy because it distinguishes
of jurists are of parts of states (i.e., all other new
(6) Contracts"".-Majority extinci State. But in West Rand were formerlycolonies) and cases of separation
into by the
by the
contract entered the succeeding State was
entitled states).
should be bound it was held that whereas
Co. Lid. v. King.- of the former State. Until it states receive "a clean state"
Central Gold Mining
the financial obligations Article 16, states that all newly independent the treaty obligation of
them. new states remain bound by
to decide
whether it will accept
former State, it will not be bound by Article 34 (1) provides that all other
states join
of the Article 17 states that newly independent
financial obligations the state from which they separated.
accepts the the contracts the consent of
contracts we mean
their former colonizers were a party without
contracts.-By concessionary etc. are multilateral treaties to which
Article 9 provides that all other
(7) Concessionary of mines, laying of railways, other parties in most circumstances
on the other hand,
concession such as digging states were a part
which certain State is bound by them. multilateral treaties to which predecessors
through local nature, the succeeding new states may only join
are of mostly concession or
granted. Since these the facts and
c i r c u m s t a n c e s of each with the consent of other parties.
upon
Much will, however. depend State cease to be in force in
respect of the territory to
(a) treaties of the predecessor the date of succession of States;
and
succession of States relates from
contract.
State are concemed, civil law continues which the
former which the
Laws.-So far the laws of the the territory to
State are in force in respect of
as
(8) treaties of the of States unless it
successor

until it is changed by the succeeding State. (b) from the date of succession
in respect of succession of States relates the application of
the
succession takes place otherwise established that
for Torts.-No appears from the treaty or is of the
(9) Unliquidated damages State will be bound if the former State with the object and purpose
for torts. But, the succeeding treaty territory would be incompatible for its operation.
to that
unliquidated damages change the conditions
to
had accepted or had decided pay
compensation. treaty or would radically under Articles 41
at the settlement of disputes
State loose their nationality also provides procedures of
nationals for the former The convention
Annex to the Convention.
(10) Nationality.-The international person. in
the conciliation machinery is provided
become the nationals of
new succession
to 45 and a
extinction of the State and
Nations.-No
decide
certain period within
which they have to of the United
nationals are given a the Succession regarding membership A State may
become a
Generally such
the former State or will accept of the United Nations.
their loyalty towards of the membership under the United
whether they will continue takes place in respect the formalities required
State. United Nations by fulfilling admission of a
State should be
citizenship of the succeeding member of the application for
State becomes an elect it as a
That is to say, Assembly should
in foreign States.-The succeeding Nations Charter. and the General Pakistan)
(11) Succession to property r e c o m m e n d e d by the
Security Council of India (into
India and
of the extinct State situated in foreign country. After the partition
the successor of the property member by the
two-thirds majority.
P.C.S. (2001) Q. 7(6
(1995) Q. 9Ma):
9 (a); P.C.S. (1993)
Q. 7(a): P.c.s.
P.C.S. (1995)Q.9a): P.c.s.
(2001) Q. 7(b). (1995) Q.
P.C.S. (1993) Q. 7(a).
*See also forP.C.S.
(1905)? KB 391.
 102 INTERNATIONAL LAW& HUMAN RIGHTS
CHAP. 12
Pakistan claimed to have become a Member of the United Nations through
successior
because India was an original member of U.N. But, this view was rejected
by the General
Assembly. Subsequently. Pakistan had to apply for the membership and was admitted ac
a new member.

Succession in International Organization.-As pointed out

by Prof
Oppenheim, "While as a rule devolution of rights and competencies is governed either bv
constituent instrument of the
organs in question or by special agreements or decisions of
their organs, the requirement of continuity of international life demands that
should be assumed to operate in all cases where that is consistent with or is
succession
the reasonably assumed intention of the
indicated hu
parties as interpreted in the light of the
organisation in question."
The law regarding succession of international
organisation has been clarified bv the
International Court of Justice in its advisory opinion of 1950 in the status
of South
West-Africa. South-West Africa was entrusted to South Africa under the Mandator
Commission to develop it and to make it independent, if and when its
capable of governing themselves. After the dissolution of the League of people were
functions of the Mandatory Commission were succeeded Nations, the
of the organs of the United Nations. But, South Africa
by the Trusteeship Council one
claimed that after the dissolution
of the League of Nations, she was not bound to follow the
control and
United Nations in respect of the South-West Africa. South Africa supervision of the
claimed that South
West Africa (Namibia) had become an
intergral part of South West Africa. The General
Assembly., therefore. referred this matter to the International Court of Justice for its
advisory opinion. The International Court of Justice advised that the
Commission was an institution of International Status and the Mandatory
had created International Status of South Africa Mandatory Commission
which could not be modified
by South Africa. The Court also pointed out that the nature, functions unilaterally
the Mandatory Commission and the and objectives of
Trusteeship Council are same. Keeping in view the
desirability of the requirement of continued intemational life, the World Court opined that
the Trusteeship Council succeeded all
the functions of the
Mandatory
the control of
Consequently, the South-West African Republic was a trust territory under Commission.
the Trusteeship Council and hence
South Africa was bound to follow the directions
control of the Trusteeship and
the nature, functions and
System of the United Nations. The Court also laid down that if
objectives of the new international organisation and extinct
international organisation are same, then succession
functions and powers of the extinct may take place in regard to the
organisation.

J.Rep. (1950) p. 79.