Mode of acquisition and loss of territorial sovereignty

Introduction: The state has four essentials namely population, territory, government and sovereignty. Territory is one
of the four elements which a state should possess in order to be an international person. The state must have a fixed
territory the territory of the state includes not only land within its jurisdiction, but also the natural resources. Lakes,
rivers and the marginal sea. The air space above the land is also part of the territory. The state jurisdiction is
exercised by the state over persons and property within a particular territory.

Definition: Oppenheim: "State territory is that definite portion of the surface of the globe which is subjected to the
sovereignty of the state."

Modes of acquiring territory: Following are modes of acquiring territory.

Occupation: Occupation in international law means an act of appropriation by a state over a territory which does not
belong to any other state Starke's views: "In order to ascertain whether a state has occupied a particular territory,
regard should be given to the effectiveness of the control over the territory concerned. Essentials elements for
effective control are that, there is direct evidence of possession and an exhibition of actual authority.

Prescription: If a state exercises control over a territory continuously for a long time without any interruption and
possess it defacto, the concerned territory becomes part of that state. This mode is known as prescription
international law does not fix any certain time so as to a title by prescription. However length of time required for
prescription is a matter which should be decided by international court of justice or tribunal where the case is
brought for adjudication.

Conditions: A state may acquire some territory by prescription only when the following conditions are fulfilled.
Occupying state has not accepted the sovereignty of any other state over the said territory. Possession should be
peaceful. There should be no interruption. Possession should be for a definite period not less than 20 years.

Accretion: If a new territory is added, mainly through natural causes to existing territory that is already under
sovereign of acquiring state it is accretion. Form of accretion can be natural or artificial. Cession: Cession is the
transfer of sovereignty over a definite territory by one state to another state. Forms of Cession can also be voluntary
or under compulsion.

Annexation: It is the acquisition of the territory of an enemy through the military force in time of war. U. S Charter on
Annexation: This mode has been greatly affected by UN charter by Art. 2(4) under which member state cannot
acquire territories by annexation.

Adjudication: Adjudication is also mode of acquiring territory. it occurs where a conference of the victorious powers
at the end of a war assigns territory to a particular state for the sake of settlement of peace. Modes of losing
territory:

Cession: The acquisition of territory by one state is loss to the other. the act of cession may be in the nature of gift,
sale, exchange or lease.

Operation of nature: A state may lose territory by operation of nature for e. g. by earthquake, a coast of the sea a
Island may altogether disappear.

Subjugation: As a state may acquire territory through annexation, the other state may lose it through subjugation.

Revolt: When a new state takes birth in consequences of revolution or revolt it would be loss of territory by revolt.

Renunciation: Renunciation is a mode of losing territory by renunciation. it is the very opposite of the occupation
which requires both possession and intention.

Independence to a Colony: Granting of independence to a colony is also a mode of losing imperialist state grants
independence to the areas under its control.
 STATE SUCCESSION

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.

State succession is a fundamental concept in public international law that deals with the replacement of one state by
another in the responsibility for international relations of a given territory. It arises in situations where sovereignty
over a territory changes due to various political, social, or legal circumstances. This concept is vital in maintaining
continuity and order in international relations, as it determines how the obligations and rights of states are carried
forward when such transitions occur.

The notion of state succession is rooted in the idea that the international legal system must adapt to geopolitical
changes while preserving stability and predictability. Understanding state succession requires exploring its meaning,
historical evolution, legal principles, and various classifications, as well as its implications in areas such as treaties,
state property, debts, and international organizations.

State succession refers to the merging of two or more States. It is different from government succession in the sense
that in government succession there's a change of government whereas in State succession the State loses control
over its partial or whole territory. Art 2(1)(b) of the Vienna Convention on the succession of States in respect of
treaties in 1978 defines the term State succession as 'the replacement of one State by another in the responsibility
for the international relations of territory'. In essence, it deals with the succession of one state with another and the
transfer of rights and obligations. This concept has assumed greater importance since World War II owing to its
effects on the legal obligations of the States.

Brownlee: Replacement of one state by another in respect of sovereignty over the territory.

Circumstances of State Succession State succession can arise in a number of defined circumstances, which mirror the
ways in which political sovereignty may be acquired. They are:

1. Decolonization of all or part of an existing territorial unit: This refers to situations where the nation partially
or completely overcomes itself from the holding of a superior nation.
2. The dismemberment of an existing State: This refers to a situation when the territory of the predecessor
State becomes the territory of two or more new States who take over it.
3. Secession: This refers to a situation where a part of the State decides to withdraw from the existing State.
4. Annexation: This refers to a situation where a State takes possession of another State.
5. Merger: This refers to the fusion of two or more free States into a single free State.

The ILC deals with State succession under four categorical headings:
1) Treaties: the Vienna Convention on Succession of States in Respect of Treaties (Vienna I);(7)
2) State property, State debt and State archives: the Vienna Convention on Succession of States in Respect of State
Property Archives and Debts (Vienna II);(8)
3) Membership to international Organizations: the ILC Rapporteur concluded that the subject matter was not
appropriate for codification. The Rapporteur recommended a report to provide illustrations for resolving different
categories of problems--illustrations which could have a unifying effect on the practice of Organizations;(9) and
4) State succession and its impact on the nationality of natural and legal persons: the Rapporteur also failed to find
any prospects for codification and recommended an ILC report or a United Nations General Assembly draft
declaration setting minimum standards for the automatic acquisition of nationality. These minimum standards would
serve as guidelines for State legislation concerned with State succession.(10)

Types of State Succession

State succession can be classified based on the nature of the territorial and political change:

1. Succession of States in Treaties

 Treaties pose one of the most intricate aspects of state succession. The Vienna Convention (1978) outlines
general rules:
 o Continuity of Boundaries: Treaties related to boundaries or territorial status generally continue to
apply.

o Political Treaties: These often lapse unless explicitly adopted by the successor state.

o Multilateral Treaties: Successor states may opt to continue participation or withdraw.

2. Succession of States in Property

 State property, including assets and resources, is typically transferred to the successor state based on
agreements or equitable principles.

3. Succession of States in Debts

 The Vienna Convention on Succession of States in Respect of State Property, Archives, and Debts (1983)
provides guidance:

o Debts incurred for the benefit of the territory often transfer to the successor state.

o Colonial debts are frequently contested, with many successor states refusing to assume them.

4. Succession of States in International Organizations

 Successor states may seek membership in international organizations as new entities or assume the
predecessor state’s membership.

 For example, Russia was recognized as the successor state to the Soviet Union in the United Nations.

5. Succession in Diplomatic Relations

 Diplomatic properties, privileges, and immunities generally pass to successor states, maintaining continuity in
international relations.

Key Principles of State Succession

State succession is governed by a set of principles aimed at balancing the continuity of legal obligations with the
sovereignty and self-determination of successor states. Key principles include:

1. Continuity and Stability

The primary goal is to maintain legal continuity in international relations despite changes in sovereignty. This
is essential for upholding treaties, protecting investments, and ensuring diplomatic stability.

2. Clean Slate Doctrine

According to this doctrine, a newly independent state is not automatically bound by the treaties of its
predecessor. This principle is particularly relevant in cases of decolonization, where successor states often
reject colonial-era agreements.

3. Universal Succession Doctrine

In contrast, this doctrine posits that successor states inherit all legal obligations and rights of their
predecessors. This approach is more common in cases of state unification or partial succession.

4. Equity and Good Faith

State practice emphasizes equitable solutions and adherence to good faith in determining the succession of
obligations, particularly in contentious cases like debts and treaty obligations.

5. Consent and Sovereignty

Successor states retain the right to decide their status in relation to treaties and other legal commitments.
This principle reflects the importance of respecting the sovereignty of new states.

State practice and legal theory regarding succession yield separate approaches dealing with the legal consequences
of such succession:
1) The continuity of treaties, claims, debts, etc.;
2) the discontinuity "clean slate" or tabula rasa;
3) a casuistic distinction according to the type of State succession or to the type of legal relationship concerned; and
4) a case-by-case settlement by mutual agreement between the successor State and other States concerned. The
fourth option includes the application of the rebus sic stantibus principle although the widely-accepted Vienna
Convention on the Law of Treaties only allows the principle to be applied within an existing treaty relationship.(12)
The principle's invocation presupposes agreement on the treaty's continuity.

For many authors, the central issue of substance is simply whether or not one of two alternative theses should be
applied: the ‘universal succession’ thesis or the ‘clean slate’ (tabula rasa) thesis.(13) The former approach is a
derivative of the Roman law concept of inheritance in civil law, in which the heres (the appointed successors) acquire
not merely a single res, but an aggregate of rights and liabilities called a iuris universitas.

Tabula rasa: The Clean Slate Doctrine

The option of simply denying State succession to treaties, known as the tabula rasa or clean slate doctrine and re-
inventing international law after each case of State succession has never been adopted or openly defended in recent
State practice. The ‘clean slate’ thesis appears to have emerged in the late nineteenth century as a result of the
influence of voluntarist or imperative approaches to law. It proceeds from an understanding of law as deriving from
the expression of sovereign will, and embodies thereby the view that legal relations are essentially personal. As a
result, the process of transformation necessarily involves a legal hiatus when the sovereignty of one state comes to
an end and another takes its place. In such a situation, there can be no ‘transfer’ of rights or obligations between the
old and the new state.(15) Rather, the incoming sovereign is free of all rights and obligations save those it assumes
afresh.

Universal Succession: The Continuity Theory

The continuation theory of state succession is an anti-thesis to the clean-slate theory of membership.(24) Under the
continuity theory, rights and duties may still pass to States that have lost extensive portions of their territories and/or
have undergone radical changes in government as long as they are considered to have inherited the essential legal
identity of the former member.(25) In this regard, a distinction must be made between the concepts of continuity
and state succession. In the former, the same State is deemed to continue to exist, while in the latter, one or more
successor States are deemed to have replaced the former State.(26) Prichard explains that at the time of Justinian:

The universal successor assumes the whole of the legal clothing of the person to whom he succeeds; steps, as it
were, into his shoes. He takes over his rights and liabilities of every kind; his property (res singulae) and iura in re
aliena, the debts and other obligations (such as rights of action for damages for breach of contract) owing to him,
and the debts and obligations which he owes.

Rights and Duties arising out of State Succession

1. The laws regarding State succession are still in a very nascent stage and keeps evolving with the changing
times. As seen above, along with the territorial and power transfers, there are transfers with regard to duties
too. This section gives a brief idea about the transfer and non-transfer of political as well as non-political
rights and duties.

2. Political Rights and Duties : No succession takes place with regard to political rights and duties of the States.
The peace treaties or the treaties of neutrality entered into by the previous State aren't binding on the new
State. But the only exception here is in case of human rights treaties since it would be desirable for the new
State to adhere to such terms. Other than this, the new State would have to enter into new political treaties
of its own.

3. Rights of Natives or Local Rights: Unlike the political rights and duties, the local rights of the people do not
secede with the succession of the States. These rights refer to the rights such as property rights, land rights
 or rights relating to railways, roads, water etc. In cases like these, the succeeding States are bound by the
duties, obligations and rights of the extinct State.

4. Fiscal Debts (State or Public Debts): These refer to the financial obligations or debts of the predecessor State.
The successor State is bound to pay back the debts of the predecessor State. This is because if the new State
is enjoying the benefits of the loans, it becomes a moral obligation as well to pay back the money. Next, if
there is a split in the State then the entire debt amount gets divided between the predecessor and successor
State in accordance with the territory and population of each.

5. Effect of State Succession on Treaties: The law on State succession with regard to treaties has for a long time
been dominated by two principles in general: One is the alleged principle of universal succession and The
other is the tabula rasa approach i.e., clean State doctrine not granting State succession to treaties. While the
former principal keeps in mind, the interests of third States regarding upholding or not upholding treaties,
the latter favours a rather strict understanding of sovereignty i.e., functions only according to the interests of
the successor and predecessor State. Neither of the two principles can, however, offer a practical solution for
various scenarios where State succession takes place. Accordingly, under customary international law more
nuanced solutions have been developed in the past or, at the least, are in the process of being formed.

6. The Vienna Convention on State Succession provides that: In case of the border treaties, no such significant
changes would be observed and the treaties would pass to the successor State. This is done keeping in mind
the greater interests of the International Community. Similarly, other forms of local treaties related to land,
territory, etc. would also pass on to the successor State upon succession. Treaties relating to Human Rights
are passed on to the successors with all their rights, duties and obligations. In the case of treaties relating to
peace or neutrality, no succession takes place.

7. Effect of State Succession on UN Membership: When Pakistan was separated from India, it claimed itself to
be a member of the United nations since India was a member of the UN. The then Secretary-General of the
UN had then brought up the following: From the perspective of International Law, the circumstance is one in
which part of the State breaks off from the original State. When Pakistan separated from India, there was no
change in the status of India. India continued with all its treaties, rights and obligations. On the other hand,
Pakistan didn't have any of those rights or obligations and of course, had lost the UN Membership.