State Formation and issues following it

 Ways of state formation

States come into existence in many different ways.
a) Decolonization:- A former colony may gain its independence;
b) Secession:-a part of a State may split off to form a new State;
c) Dissolution:-an old State may die and dissolve into several new States; or
d) Merger:- two States may merge to form a single new State.
In these situations, the international community must decide the followings question,
1) Legal issues:- legal question of when a State becomes a State ?When does an emerging
entity become a legal State with all the rights and duties of a State under international
law?
The purely legal question of when a State becomes a State is a different matter. There are, of
course, legal criteria that tell us when an emerging entity has become a legal State. The 1933
Convention on the Rights and Duties of States (known as the Montevideo Convention), sets out
four simple criteria for statehood. “The state as a person of international law should possess the
following qualifications: a) a permanent population; \b) a defined territory; c) effective
government; d) capacity to enter into relations with the other states.”
Seemingly, if an entity has these four things, it is a legal State. The four criteria have been
interpreted rather liberally in application. In regard to the first criterion, there is no minimum
number of inhabitants necessary to make a State. The Pacific Island State of Nauru has roughly
10,000 inhabitants; Lichtenstein in Europe has roughly 30,000 inhabitants. The fact that the
population must be “permanent” means that Antarctica cannot be a State because no one lives
there year-round. (One might well ask, what will be the rights of nomads in international law?)
Second, an entity’s territory may qualify as a “defined territory” even though its borders are
disputed, as for example with Israel. By a defined territory, it doesn’t mean that the territory of a
State must be exactly fixed by definite frontiers. Many States have begun their existence with
their frontiers unsettled. It mean that State shall possess territory is that one cannot contemplate a
State as a kind of disembodied spirit. Historically, the concept is one of insistence that there
must be some portion of the earth’s surface which its people inhabit and over which its
Government exercises authority. Third, States have been recognized in the midst of civil war
when the States are seemingly without effective governments. This was the case in Burundi and

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Rwanda which emerged from colonialism in a state of virtual anarchy but nonetheless were
recognized as States. (Notably, the requirement of “effective government” may be more
stringent when a new State is trying to assert its independence against the will of a predecessor
State, as when a part of a State wages a war of secession in order to form a new State. At the
same time, this requirement may be loosened in cases of the legitimate expression of the right to
self-determination – see below.). Finally, in regard to the fourth and last criterion, there are
many cases in which all or part of the foreign relations of a State is undertaken by another State.
The national defense of Liechtenstein is managed by Switzerland; the defense of Monaco is
managed by France. The emphasis here should be on the capacity to enter into relations with
other States; whether or not a State actually takes up management of all of its foreign relations is
not important for the question of Statehood. Whether state has the legal capacity to exercises
complete independence of judgment and of will in forming and in executing its foreign policy.

2) Issue of recognition
 Reason for Discrepancy of Criteria of statehood in theory and in practice
As with other aspects of international law, the criteria of Statehood differ in theory and in
practice. In practice, even after new States have met the four legal criteria of Statehood, they are
not automatically recognized as States by other States. Reasons:-
There is no an international body with the authority to decide an emerging entity has fulfilled
the legal criteria and become a legal State with all the rights and duties of a State under
international law. One might expect that an international body like the United Nations would
decide this question. Unfortunately, this is not the case. International bodies may be influential
in directing the opinion of the international community, as we will see in a moment, but
ultimately the decision of how to treat an emerging entity – or indeed a long-existing entity – is
left to the discretion of each existing State. In other words, Ethiopia will decide for itself
whether to recognize Israel as a State or not, or indeed whether to recognize the U.S. as a State or
not. Kenya likewise will make a decision as to whether or not Israel and the U.S. are States. This
opened the room political consideration than legal criteria to play decisive role in deciding
whether the new state has met the legal criteria. This is not to say that there are additional legal
criteria for Statehood but rather to point out that there is a strong political dimension to this issue.
After all, State formation usually involves taking away territory that previously belonged to

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another State and for this reason is politically very sensitive. This also give rise other question on
the effect of recognition on the status of the new entity as a state.
Theories on the effect of recognition
a) Declaratory theory
There has been some debate in the scholarship about the role that recognition of States plays in
deciding whether an emerging entity is a State. In theory, however, the weight of legal authority
rests with the so-called “declaratory” view that a State exists once it has met the four legal
criteria, whether or not it has been recognized by any other State. According to the Institut de
Droit International: “The existence of a new State with all the legal consequences attaching to
this existence is not affected by the refusal of recognition by one or more states.” (1936).
According to the declaratory theory, statehood or the authority of a new government exists as
such prior to, and independently of, recognition.
The act of recognition is thus a formal acknowledgment of an established situation… If an entity
does not fulfill all the factual conditions of statehood as required by international law, a
declaration of recognition by a state is invalid, and any consequential participation by the new
entity in international relations cannot be on the footing of international law. A clear example of
an illegal and thus invalid recognition is where the act of recognition is premature and thus an
unwarranted interference in the affairs of another state. This arises whenever part of an existing
state breaks away to form another independent state. Questions of Statehood are particularly
tricky when dealing with a rebel group that is trying to secede from an existing State. The State
that is losing territory (predecessor) almost always will oppose the creation of the new State, and
recognition of the new State by other States will be perceived as an aggressive move or as
interference with the internal affairs (sovereignty) of the predecessor State. In fact, early
recognition of a rebel group by another State is illegal – a violation of the predecessor State’s
sovereignty. It would seem that the international community must wait until most of the fighting
between the rebels and the central government has stopped. As mentioned before, the four legal
criteria will be applied more strictly, especially the criterion of an effective government. The
rebels will have to show to the international community that they, rather than the central
government of the predecessor State, have effective control over their territory.
In this connection, Brierly has laid down these guiding principles:

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 It is impossible to determine by fixed rules the moment at which other states may justly
grant recognition of independence to a new state; it can only be said that so long as a
real struggle is proceeding, recognition is premature, whilst, on the other hand, mere
persistence by the old state in a struggle which has obviously become hopeless is not a
sufficient cause for withholding it.

[By the declaratory theory], the recognition will be premature and would appear to be
unjustifiable and illegal in that at the time of recognition “a real struggle” was still proceeding,
and it was not “abundantly clear that the lawful government has lost all hope or abandoned all
effort to assert its dominion.” In other words, if the recognition given is premature, thus
“constituting a tortuous act against the lawful government and thus a breach of international
law.”
 criticism
The critic against this theory is that it doesn’t reflect the real situation on the ground. In practice,
the decision to recognize or not depends on political consideration, not on legal criteria. And also
more than just recognition, existing States will decide on an individual basis whether or not to
confer the benefits of Statehood on an emerging entity, for example whether or not to enter into
treaties with the emerging entity, whether or not to accept embassies, and whether to entertain
diplomatic representatives from the emerging entity in international forums. That means, the
benefits of Statehood only come with recognition by other States. Without recognition, the new
state cannot function as a state at the international arena. It cannot enjoy the benefit of
statehood. This show that it is the act of recognition by other states that allow the new state to
operate at the international level and exercise benefit of statehood
b) constitutive theory
The other view is the “constitutive” view, holding that other States “constitute” or create a new
State by recognizing it. According to the constitutive theory, it is the act of recognition alone
which creates statehood.
 criticisms
This theory has some inherent difficulties. Although this theory gives proper deference to
international politics, it does not provide a clear point at which a State becomes a State and in
fact may misrepresent the way that States make recognition decisions First, it is capable of
creating an international monster in that “the status of a state recognized by state A, but not
recognized by state B, and therefore apparently both ‘an international person’ and ‘not an

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international person’ at the same time would be a legal curiosity.” The second difficulty is more
substantial. How many recognitions will be sufficient to constitute an entity a state in
international law? …[I]t would be difficult under this theory to conclude that recognition by
only five small states was sufficient to constitute an emerging entity an independent nation.
. How many States must recognize an emerging entity as a State before it can be a legal State?
A majority of 100? Or what? And how should States make this decision whether or not to
recognize?
c) Hybrid theory
Some scholars have argued for hybrid theory that state recognition has constitutive effect and
there id duty to recognize once the entity fulfill the legal criteria. For example, Ethiopia has a
duty under international law to recognize an emerging entity as a State once that entity has met
the legal criteria for statehood.
 criticism
This does not change the fact that each State has a great deal of discretion in regard to its
foreign relations and there is little opportunity for the international community to force a State
like Ethiopia to recognize an emerging entity as a legal State. (The student should note that
recognition of States and recognition of governments are two entirely different issues.
Recognition of governments will be dealt with shortly.)
 Issue when State is no longer a legal State
Similar problems arise when determining whether a State is no longer a legal State. In other
words, it is just as difficult to say when a State has died as to say when a State has been born.
Logically, it would make sense to apply the four criteria again and say that, when an existing
State can no longer satisfy all four criteria, it ceases to exist. In practice, this is not done.
International law places a great deal of emphasis on stability in international relations and thus
resists any sudden withdrawal of Statehood status. In short, a State may lose its government for
a time and still remain a State. A State may lose control over its relations with other States and
likewise remain a State, etc. For example, the collapse of the central government in Somalia
during most of the 1990s did not change Somalia’s status as a State in international law. Neither
did Iraq’s occupation of Kuwait for nine months alter Kuwait’s status as a State.

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 3) Issue of State Territory and Borders
The formation of a new State inevitably brings with it the question of where the new State’s
boundaries will be. This problem is well known to Ethiopia, which has an ongoing dispute with
Eritrea (formed in 1993) over their shared border. Such disputes in Africa have been decided by
the principle of uti possidetis, ita possidetis (or just uti possidetis for short).
 Definition and nature
The principle of uti possidetis, a Latin phrase which means literally, “[you may] keep what you
had.” By this is meant that former colonies, on gaining independence, will keep the borders
established previously by the colonizing power. There are several different aspects to this
principle [of uti possidetis]… The first aspect…is found in the pre-eminence accorded to legal
title over effective possession as a basis of sovereignty… The essence of the principle lies in its
primary aim of securing respect for the territorial boundaries at the moment when independence
is achieved.It advocates the maintenance of the territorial status quo that exist at the time where
independence is achieved. It state that the former boundaries become frontiers protected by
international law.
 What to be used to determine the territorial status quo or former boundaries?
The principle applies both to administrative boundaries in territories controlled by one sovereign
(e.g. Italy has two colonies that border one another) and boundaries established by treaty
between two sovereigns (e.g. Italy enters into a treaty with Ethiopia establishing the border
between Italy’s colony and the Ethiopian State). The borders of the new States will be
determined by looking at maps showing the administrative divisions of the colony or by treaties
entered into with the previous colonial power. In other words, such territorial boundaries might
be no more than delimitations between different administrative divisions or colonies all subject
to the same sovereign. Therefore, Uti possidetis…upgraded former administrative delimitations,
established during the colonial period, to international frontiers…
 History
The principle of uti possidetis seems to have been first invoked and applied in Spanish America,
inasmuch as this was the continent which first witnessed the phenomenon of decolonization
involving the formation of a number of sovereign States on territory formerly belonging to a
single…State. It was also when the phenomenon of decolonization characteristic of the situation
in Spanish America in the 19th century subsequently appeared in Africa in the 20 th century, the

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principle of uti possidetis, in the sense described above, fell to be applied. Whenever border
dispute arise following decolonization, it was this principle that has been applied to resolve it. To
give a specific example, the border between Chad and Niger was determined by the French
administrative line that ran between these two French colonies. The border between Niger and
Nigeria, on the other hand, was determined by a treaty between the French and the British.
 Argument against it when it was applied in Africa and alternative suggested
That the principle of uti possidetis is still recognized in modern times may be offensive to the
student. After all, what business does France or England have establishing borders for African
States, splitting up previous African political units and ethnic groups? It is not just or fair to
recognize the misdeed of colonial powers.
The real alternative to uti possidetis would have been to allow each particular ethnic group and
“people” to form a new State at the time of decolonization based on the right of self-
determination. This is exactly what President Wilson had in mind when he first articulated the
principle of self-determination after WWI. For good or for bad, this is not what happened during
decolonization.
 Argument in favor of it
This is not a question of rights or justice, however. The main problem is that there is no other
peaceful way to determine the territory and borders of States in previously colonized territories.
Most people fear that any alternative to the uti possidetis principle simply would result in endless
wars over land. Presumably, if decolonization had accompanied by the principle of self
determination, there would have been a lot more fighting in Africa and South America and Asia
and a lot more States formed.
 Recognition by OAU
The Organization of African Unity itself issued an opinion on this crucial matter. “Recognizing
the… necessity of settling, by peaceful means and within a strictly African framework, all
disputes between African States…,” the OAU declared “that all Member States pledge
themselves to respect the frontiers existing on their achievement of national independence.”
 purpose
Why in Africa the successive attainment of independence and the emergence of new States have
been accompanied by a principle [of uti possidetis] even though this principle [of uti possidetis]
conflicts outright with another one, the right of peoples to self-determination? In fact, however,

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the maintenance of the territorial status quo in Africa is often seen as the wisest course, to
preserve what has been achieved by peoples who have struggled for their independence, and to
avoid a disruption which would deprive the continent of the gains achieved by much sacrifice.
The essential requirement of stability in order to survive, to develop and gradually to consolidate
their independence in all fields, has induced African States judiciously to consent to the
respecting of colonial frontiers, and to take account of it in the interpretation of the principle of
self-determination of peoples. Its obvious purpose is to prevent the independence and stability of
new States being endangered by fratricidal struggles provoked by the challenging of frontiers
following the withdrawal of the administering power.
 Recognition that it is general principle for all case of frontier dispute
This conclusion follows from the principle of respect for the territorial status quo and, in
particular, from the principle of uti possidetis. Uti possidetis, though initially applied in settling
decolonisation issues in America and Africa, is today recognized as a general principle, as stated
by the International Court of Justice in its Judgment of 22 December 1986 in the case between
Burkina Faso and Mali…:Nevertheless the principle is not a special rule which pertains solely to
one specific system of international law. It is a general principle, which is logically connected
with the phenomenon of the obtaining of independence, wherever it occurs.
3) Issues of State Succession
 Definition of state succession
First, a note on vocabulary: “Succession of States” means the replacement of one State by
another in the responsibility for the international relations of territory. It is a shift of control of a
territory from one state to another; a “predecessor” State is the parent State from which the new
State is formed or territory transferred; and a “successor” State is the new State, the “child” of
the predecessor (or the State that inherits territory). To give a concrete example, the dissolution
of the Soviet Union resulted in a Succession of States. The Soviet Union was the predecessor
State; and Russia, Ukraine, Belarus, etc. were the successor States.
 Circumstances where issues of state succession may arise
The student should note that succession issues arise basically in the same situations that we dealt
with before when considering recognition of States: decolonization, secession of part of a State,
dissolution of an entire State, and merger of two States to form one State. An additional

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situation is relevant for succession: the transfer of territory from one State to another (no new
State is formed).
 Issues of successions
There are additional legal issues involved when the political map changes and control over
territory shifts from one State to another. Even if the international community unanimously
recognizes a new State, there remain certain “succession” issues, or in other words issues over
how treaty obligation, membership, property and responsibility will be transferred from the
predecessor State to successor States. In other words, the following four succession issues will
arise:-
a) Will the new State inherit the treaty obligations of its predecessor?
b) Will the new State inherit membership in international organizations?
c) Will the new State inherit assets and debts of the predecessor?
d) Will the new State be responsible for wrongs committed by the predecessor State?
 Theories on state succession
Unfortunately, international law in relation to succession of States is not clear. In theory, there
are two extreme positions, and in practice there is everything in-between.
 Clean slate theory:- On the one hand is the “clean slate” position, which holds that the
successor State should assume none of the rights and obligations of the predecessor State.
The successor State starts its life with a “clean slate,” or in other words with none of the
baggage from the predecessor State. It must start life from scratch.
 Continuity theory:-On the other hand is the “continuity” position, which holds that the
successor State should assume all the rights and obligations of the predecessor State.
Most of the time our answer to succession issues will fall somewhere between these two
extreme positions.
 Method for analyzing succession problems
Even though international law in this area is hopelessly confusing, there is a relatively simple
method that the student can use to analyze succession problems-method that is similar to the
method one can use to resolve contractual problems under domestic law.
a) The student should first look for an agreement among the affected parties called a
devolution agreement. Therefore succession issues must be resolved on the basis of the
principle of pacta sunt servanda.

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 First, the student must know some basic principles of contract law. In general, if two parties
come to an agreement, the terms of their agreement will govern any dispute that may arise. For
example, the agreement may be for the delivery of 100 kilos of mangos to a certain location in
Addis Ababa. If the parties forget to specify the delivery date, the Court may decide to enforce a
“reasonable” delivery date, i.e. one that accords with the business practices of people in this
particular business and takes into account the season for this type of mango, etc.
On the whole, the same is true for succession issues. The student should first look for an
agreement among the affected parties. If for example all the successor States of the Soviet
Union get together and enter into an agreement that clearly distributes the property of the Soviet
Union among all of them, then the student can rely on the terms of this agreement for the
purposes of determining State property for each successor State. If on the other hand there is no
agreement among the successor States, or the agreement is incomplete, then the student should
apply the default rules (which will be explained momentarily), just as in contract cases a Court
will fill in where the parties failed to specify terms.
Another principle of contract law is important here. The parties to a contract cannot make terms
that harm a “third party” who is not part of the agreement. There can be no “third-party
detriment.” The same is true for succession issues. Two successor States cannot get together
and distribute property and debt between them in such a way that harms the interests of another
successor State. Along the same lines, all successor States cannot get together and alter treaty
obligations in such a way that harms the interests of other State parties to the treaty. Obviously,
all successor States cannot get together and agree to cancel all debts of the predecessor. This
would harm third parties – the creditors that loaned the money.
So the objective is to bring all the interested parties to the table and have them conclude an
agreement. This is in reality how most succession issues are resolved. The student should
consider all the possible types of agreement. Predecessor States may negotiate among
themselves and with successors to determine the rights and duties of successors. Such an
agreement is called a devolution agreement. East and West Germany entered into three
devolution agreements to determine the rights and duties of their successor, unified Germany.
Also, in dissolution situations in which the predecessor ceases to exist, all successors may get
together and form an agreement. In cases of treaties successor States may negotiate with other
parties to the treaty on a case-by-case basis. For example, if there is a bilateral treaty between

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the predecessor state and the U.S., the successor state and the U.S. can negotiate as to whether
the treaty will apply between them.
b) In the absence of agreement, the student must look to the default rules for State
succession.
There is a rule of contract law that provides if the two parties have not explained all terms in
their agreement, as happens frequently, a domestic Court likely will apply certain default rules to
fill in the gaps. Similarly if there is no agreement among the successor States, or the agreement is
incomplete, then the student should apply the default rules
 Two treaties that serves as default rules for state succession and their status
In truth, there are few default rules in State succession that have attained the status of
international law. Two important treaties on succession have been created, but few States have
joined these treaties. The first, the Vienna Convention on Succession of States in Respect of
Treaties, was completed in 1978. It has some seventeen members (including Ethiopia) and has
entered into force for these members. The second, the Vienna Convention on Succession of
States in Respect of State Property, Archives, and Debts, was completed in 1983. It is not yet in
force for lack of State signatories. (This means that, even for those States that have signed this
treaty, the treaty is not yet binding on them.)
 Their significances
Nonetheless, the student should note that (1) some scholars think that many of the rules in these
treaties are already binding as international customary laws, and (2) the rules are in the
background of negotiations over succession issues and may tell the parties what to ask for and
create expectations of what they deserve in their agreements. More than anything, the rules in
these two treaties are persuasive authority – the rules will be used to the extent that they provide
logical solutions to practical problems. In this way the default rules in these two treaties can be
rather influential.
1. default rules for State succession in respect of treaties :-Vienna Convention on
Succession of States in Respect of Treaties 1978
 general principles
Let us look now first at the default rules for State succession in respect of treaties. Nonetheless,
certain general principles apply. First, the student should remember that the treaties in question
are between a State involved in State succession (a predecessor State) and other State parties that

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are “innocent,” i.e. not involved in this succession. The rules are intended to avoid prejudicing
the rights of these innocent parties to the treaty. Second, and along the same lines, the rules will
not be applied if applying them would somehow go against the underlying object and purpose of
the treaty.
The rules vary depending on the type of situation;-
a) Decolonization:-If the State is newly independent from foreign domination (for example
a former colony that gains independence), the State generally begins its life with a
“clean-slate.” That is, the new State inherits none of the treaty obligations of its
predecessor.
 Exception:-Of course, the principle of uti possidetis still applies, so the new State will be
bound by colonial treaties establishing borders.
b) Dissolution:- If the new State is a product of dissolution (for example, successor States to
the former Yugoslavia), default rules for succession in respect of treaties will be more
complex. According to the Vienna Convention, most treaties will pass to the successor
States. The question here is whether the treaty concerns the territory of the successor
State. Any treaty that deals with the entire territory of the predecessor State will apply to
all of the successor States. On the other hand, if the treaty concerns the territory of only
one or two successor States, then only those successor States will be bound by this treaty.
For example, the treaty might concern a dam on a river that flows through only one of
five successor States. In this case, only one successor State will be bound by the treaty
terms and the other four successor States will not be bound. Notably, there are
competing rules on this particular point. The U.S. Restatement, for example, says that
the treaties of the predecessor State will not apply to successor States unless the successor
State and the other parties to the treaty agree to be bound. (When faced with competing
default rules, the student simply should make note that international law in this area is not
clear and that there are different options.)
c) Secession :-If the situation is not complete dissolution but rather partial dissolution (only
part of the predecessor State breaks off to form a new State, just as Eritrea broke off from
Ethiopia), then very similar rules apply as in a complete dissolution situation. The
concern is how to deal with the predecessor State which continues to exist after the
formation of the new State or States. According to the Vienna Convention, all treaties

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 will continue to apply to the predecessor State unless it can be shown that “the treaty
related only to the territory which has separated from the predecessor State.”
d) Merger:-What if two or more States merge to form one State? The Vienna Convention
says, apply all treaties of the two predecessor States to the successor State, but only in the
territory that was controlled by the particular predecessor that entered into that treaty.
According to this rule, the treaties of East Germany would apply to the unified Germany
but only in the territory of the former East Germany.
e) Transfer of territory:-Finally, when territory is transferred from one State to another, as
for example when Britain transferred Hong Kong to China, the Vienna Convention’s
default rule is to cancel old treaty obligations for the territory in question and apply the
treaties of the acquiring State.
2. default rules for property and debt :-the Vienna Convention on Succession of States in
Respect of State Property, Archives, and Debts 1983
As with treaties, the default rules for property and debt are applied in the absence of an
agreement among the affected parties.
 default rules for property
For property the main question is, What type of property is this?
a) Immovable property:- According to the Vienna Convention, immovable property will go
to the successor State in which the property is found. An example would be a building or
a well or a communications tower. The successor State that has the land under the
building will get the building as well. This is a logical rule; otherwise, buildings and
other structures would have to be removed or sold.
b) Moveable property located in particular territory where succession issue arise:- A second
category of property is moveable property, but “connected with the activity of the
predecessor State in respect of the territory to which the succession of States relates.”
Any property that we can connect to territory, including currency and state public funds
located in the territory of the successor, probably will stay in the territory where the
moveable property is found.
c) Finally, moveable property not connected to territory (for example, any property outside
the territory or intangibles like bank accounts). If the predecessor State continues to exist
after succession, then it will take all moveable property. (The justification is that this was

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 the State that originally earned the money.) If the predecessor State ceases to exist,
moveable property is distributed equitably (for example, in proportion with the
distribution of debt and considering such factors as the population of the successor,
national income, etc.).
 default rules for debt
For debt, more than for treaties or property, the parties are likely to come to an agreement and
the default rules will not matter. That said, there are default rules, and they stand in the
background of negotiations.
 Creditor States and organizations generally rely on two means of coercion other
Naturally, successor States would prefer not to pay any debt at all. Creditor States and
organizations generally rely on two means of coercion. First, there is the threat that if the
successor State does not take up its portion of debt, it will not get any future loans from the
international community. Second, there is reliance on the fall-back default rules that generally
preserve the creditors’ rights.
The rules vary depending on the type of situation
a) In cases of dissolution, secession of part of territory, and transfer of part of territory:- The
general rule from the Vienna Convention is that “the State debt of the predecessor State
shall pass to the successor States in equitable proportions, taking into account…the
property rights and interests which pass to the successor States in relation to that State
debt.” Here, the rule is saying that, for example, if the debt is incurred in building a fleet
of aircraft, then the successor State that gets the aircraft should also pay the debt. A more
general rule could be applied, however, that said that debt should pass to each successor
in proportion to the total assets of the predecessor that pass to each successor. (This is
done sometimes by agreement but it is not the default rule – although one supposes that it
could be one form of distribution “in equitable proportions.”.)
b) decolonization:- The default rules is that States emerging from foreign domination will
inherit none of the debt of their predecessors,
c) Merger:- The default rules for new States emerging from the uniting of States is that a
unified State will inherit all of the debt of its predecessors.

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 3. Which successor State will inherit the predecessor’s membership in international
organizations?
Another consideration in the succession of States is, Which successor State will inherit the
predecessor’s membership in international organizations? If Yugoslavia was a member of the
UN, which of Yugoslavia’s successor States will take Yugoslavia’s seat? The simple answer is
that we look to the particular rules of the organization in question.
 UN
In case of the UN, new States must reapply for admission. Thus, if a State dissolves, all the
successors will have to reapply for admission to the UN. (Notably, if only a part of a State
secedes and the predecessor State survives – as in the case of Ethiopia and Eritrea – then the
predecessor State will retain its membership in the UN.)
4. Which successor State will inherit the predecessor’s wrongs?
The last succession issue is a simple succession issue. Successor States do not inherit wrongs
committed by predecessor States. Thus, if there is a case pending against a State before an
international tribunal and that State ceases to exist, the case will be dropped. Successor States
will not inherit liability.

Issues of change of Governments

Change of government is quite common. In democracies, elections often result in the formation
of new governments. Change in government may happen through unconstitutional means, as for
example by revolution or military coup. Let see three issues that arise following change of
governments
a) Issue of succession
The first point to be made is that a succession of States should not be confused with a succession
of governments. For the purposes of international law, a change in government is not a problem.
For new governments, there is a simple rule. The new government will inherit all the rights and
obligations of its predecessor government. As already discussed, the law strongly emphasizes
continuity in international obligations from one government to the next. The international
obligations of a State do not change when the government changes.

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 Some scholars have argued that this does not make sense, considering that a change in
government may be as dramatic, as violent, as world-altering as a change in States. Why should
a communist government that came to power through a revolution be forced to respect the
treaties of the very government it overthrew? Well, according to international law, that is the
way it is.
b) Issues of legitimacy
There are situations when the international community must determine the legitimacy of a new
government. Imagine that a small band of people takes over the central government of Ethiopia
for a very brief period, say a few months. This band of rebels never controls all the territory of
Ethiopia but nonetheless enters into treaties with other States. Then the legitimate government
overthrows the rebels and comes back into power. The legitimate government probably will not
recognize the treaties entered into by the rebels. But what about the other State parties? Are
these treaties binding on Ethiopia as a matter of international law or not?

For such cases, there are two opposite legal positions that one can take. First, there are the so-
called de jure criteria of governmental legitimacy. The question is, Does the government have a
legal title to govern (based on internal laws)? As per this principle the legitimacy or legality of
its origin is the standard under international law for determine the legitimacy of governments.
Only governments that assume power through the constitutional procedure are legitimate
governments. Going by these criteria, all governments formed by revolutions are out. This
presents obvious problems, considering the number of governments formed illegally, including
the U.S. government which was originally the product of a revolt from Britain. On the opposite
end there are de facto criteria. The only question here is whether the government has effective
control over the State’s territory. This is the accepted approach in international law, clearly
explained by William Howard Taft in his decision in the Tinoco Claims Arbitration, reproduced
below.
The issue is not whether the new government assumes power or conducts its administration
under constitutional limitations established by the people during the incumbency of the
government it has overthrown. The question is, has it really established itself in such a way that
all within its influence recognize its control, and that there is no opposing force assuming to be a
government in its place? Is it discharging its functions as a government usually does, respected

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within its own jurisdiction?Where a revolutionary government presents itself as representing a
State, in rivalry to an existing government, the question at issue should be which of these two
governments in fact is in a position to employ the resources and direct the people of the State in
fulfillment of the obligations of membership. In essence, this means an inquiry as to whether the
new government exercises effective authority within the territory of the State and is habitually
obeyed by the bulk of the population.
c) Issues of recognition
When there is change of government, other States’ governments may not like the new
government and may want to change their relations with it. Problems may arise when a change in
government happens through unconstitutional means, as for example by revolution or military
coup. Other governments have various options for expressing their dissatisfaction with a new
government. As an expression of disapproval, other governments may refuse to recognize the
government, cut off diplomatic contacts, suspend travel to that country, or cut off trade and
foreign aid. A further step may be taken, somewhat more controversial: other governments may
refuse to recognize a new government and continue to recognize the previous government living
in exile. After the communist takeover in China in 1949, the U.S. refused to recognize the new
communist government and continued to recognize the previous government in exile in Taiwan
as the legitimate government of China. This went on until 1979 when the U.S. finally
recognized the communist government. Taiwan even occupied China’s seat at the UN from
1949 until 1971.
For the most part, this is a political decision and not a matter of international law. Each State has
discretion as to how it will conduct its foreign relations. Recognition of new governments is thus
a decision for each State to make on its own. The issue of recognition is separate from the issue
of whether to continue diplomatic relations, travel, and trade. A government may decide, again
at its discretion, to recognize a new government but nonetheless to cut off diplomatic relations
and trade with a new government. A State also may make no statement as to whether it
recognizes or does not recognize a new government.
 States’s approaches in relation to recognition of governments
To the extent that recognition practice affects the internal affairs of a State – as would be the case
if lack of international recognition weakened a new government – it could be argued that
recognition of governments is an interference in the sovereignty of a State. The U.S. for some

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time applied the so-called “Tobar Doctrine” which said that, in order to promote democratic
transfers of power, new governments formed by use of force or subversion of legitimate
democracies would not be recognized. The idea was to use recognition practice to promote a
certain type of government in other States. This certainly comes close to interference in another
State’s internal affairs. One aspect of sovereignty is the right to form whatever type of
government a State wants.
In the 1970s the U.S. moved away from this practice: “In recent years, U.S. practice has been to
deemphasize and avoid the use of recognition in cases of changes of governments and to concern
ourselves with the question of whether we wish to have diplomatic relations with the new
governments.” (1977). This is the prevailing view – that it is better not to engage in recognition
practice at all. This view was most strongly expressed in a statement by the Mexican foreign
minister Estrada, reproduced below. It has become known as the “Estrada doctrine.”Despite the
logic and current popularity of the Estrada Doctrine-
Statement by the Mexican Foreign Minister Estrada, 1930.
It is a well-known fact that some years ago Mexico suffered, as few nations have, from the
consequences of that doctrine, which allows foreign governments to pass upon the legitimacy or
illegitimacy of the regime existing in another country, with the result that situations arise in
which the legal qualifications or national status of governments or authorities are apparently
made subject to the opinion of foreigners.
…
…[T]he Mexican Government is issuing no declarations in the sense of grants of recognition,
since that nation considers that such a course is an insulting practice and one which, in addition
to the fact that it offends the sovereignty of other nations, implies that judgment of some sort
may be passed upon the internal affairs of those nations by other governments, inasmuch as the
latter assume, in effect, an attitude of criticism, when they decide, favorably or unfavorably, as to
the legal qualifications of foreign regimes.
 UN approach
In recent years, the United Nations has taken action several times against governments that came
to power unlawfully. For example, in Sierra Leone in 1997 the national army seized power from
the democratically-elected President. The UN condemned this unlawful seizure of power, and
the UN continued to recognize the former democratic government and continued to seat its

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delegation. With the help of such actions, the former government was restored to power the
following year. The UN responded similarly to violent changes of government in Haiti,
Afghanistan, and Somalia. In all of these cases the UN refused to recognize de facto
governments but rather, as the U.S. did in the 50s and 60s, continued its recognition of de jure
governments in exile as a means to censure undemocratic transfers of power. It seems as though
the UN is continuing the Tobar Doctrine in a different form.

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