CHAPTER 13

State Succession
By ‘State succession’ is meant the substitution of one State by another over
a territory. It signifies transfer of rights and duties from one international person
to another in consequence of a territorial change. Oppenheim lays down that ‘a
succession of international persons occurs when one or more international persons
take the place of another international person, in consequence of certain changes in
the latter’s condition.1 The Vienna Convention on Succession of States in Respect of
Treaties of 1978 defines State succession likewise by stating under Article 2 (1) (a)
as the replacement of one State by another in the responsibility for the international
relations of territory.2 Thus, a case of succession arises only when one subject of
International Law enters into rights of another.
The definition applies to all the cases of State succession except to that of
mandate or trust territory when it is not sovereignty but a special type of legal
competence is replaced.3 A State which has replaced another is called the ‘successor
State’, or in some cases ‘new State’.4 However, the expressions ‘successor State’, and
‘new State’ are not synonymous. The former is wider in application. The term ‘new
State’ signifies a State which has arisen from succession where a territory, which
previously formed part of an existing State, has become an independent State. This
includes secession of a part of the metropolitan territory of an existing State, and
the secession or emergence to independence of a former dependent territory.5 The
State which has been replaced is known as the ‘parent’ or ‘predecessor State’.
The idea of a succession of international persons was introduced into
International Law by Grotious as a corollary of the rule of Roman Civil Law by
which an heir became the successor in law of the deceased person and was clothed
with the latter’s rights and obligations.

KINDS OF STATE SUCCESSION:

State succession may occur in a number of ways, for instance dismemberment
of an existing State, secession, annexation, cession, merger and decolonization of
1. See Oppenheim’s, ‘International Law’. Vol. I, Ninth Edition, (1992) p. 208; Also see
Lawrance, ‘Principles of International Law’, Seventh Edition p. 89.
2. The Vienna Convention on Succession of States in respect of State Property, Archives and
Debts of 1983 under Article 2 (12) (a) also defines the term State succession in the same
words.
3. Brownlie, ‘Principles of Public International Law’, Second Edition, p. 630.
4. The term newly independent State has been defined under Article 2(1)(f) of the Vienna
Convention on Succession to Treaties as the territory 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.
5. H.O. Agarwal, ‘State Succession-A Study of Indian Cases’ p. 3.
( 199 )
200 International Law and Human Rights

all or parts of an existing State. The above may be divided broadly into universal
succession and partial succession.

(1) Universal Succession:

In cases where the personality of the predecessor State is completely
destroyed, and is absorbed by another international person, the succession is
termed ‘universal’ or total. It may take place either through voluntary merger, or
through annexation or through subjugation. Thus, it was total succession when
Prussia annexed Hanover in 1866 or the South African Republic was annexed
by Great Britain in 1901, Korea by Japan in 1910, Austria by Germany in 1938.
Universal succession also takes place when a State voluntarily merges with another
State. Unification of Germany with the result of the merger of German Democratic
Republic with the Federal Republic of Germany in 19901 is an instance of universal
succession. Further, Oppenheim says that ‘when a State breaks up into parts
which either become separate international persons of their own or are annexed
by surrounding international persons’, is also a case of universal succession.2 It
may be noted that in such cases, the succession which takes place cannot be called
universal because, here, the successor States succeed not to all the rights and
obligations of its predecessor, but only to a part thereof. The remaining part passes
to other successor State or States. Where substitution is not complete but partial, it
cannot be aptly termed universal succession.

(2) Partial Succession:

When a part of the territory is severed from the parent State, and personality
is affected only to the extent by which the territory is transferred, what results is
partial succession. Partial succession takes place, for instance, either by secession,
i.e., separation from the parent State,3 or by cession, or by conquest and annexation
of a part, or by dismemberment i.e., when a State is replaced by two or more States.
Secession of Estonia, Lativia and Lithuania in 1991 from the U.S.S.R., Slovania
and Croatia from Yugoslavia in 1992 and South Sudan from Sudan in 2011 are the
examples of partial succession. Further, replacement of the Soviet Union by 12
sovereign States in December 1991 and the replacement of Czechoslovakia by Czech
Republic and Slovak Republic on January 1, 1993 are the examples of the partial
succession. However in those cases of succession where the loss of the territory is
considerable, or where a State loses certain essential portion of the territory, it may
mean the dissolution or end of the State.4 For instance, following the secession of
1. In August 1990, the German Demoratic Republic and the Federal Republic of Germany
agreed to merge by way of accession of the former to the Federal Republic (See Articcle
I of the Treaty on the Establishment of German Unity, August 31, 1991). The merger
took place at midnight on October 2/3, 1990. Thus there was an extinction of the German
Democratic Republic and the Federal Republic of Germany became the successor State.
2. Op. cit. p. 209.
3. Kosovo in the year 2008 seceded from Serbia and declared its independence. Its unilateral
declaration of independence has been held lawful by the International Court of Justice.
(See the Advisory opinion of the Court on Is the Unilateral Declaration of Independence
by the Provisional Institutions of Self-Government of Kosovo in accordance with
International Law? The opinion was delivered on July 22, 2010).
4. See Hall, ‘International Law’, Edition VIII, p. 25; Fenwick, ‘International Law’, Third
Edition, p. 168.
 State Succession 201

Slovania, Macedonia and Croatia, and later, of Bosinia and Herzegovina in 1992,
the Federation Republic of Yugoslavia lost a considerable part of its territories.
It was regarded that the personality of the Federation of Yugoslavia has come to
an end. It was not permitted to be seated as a continuing member of the United
Nations. The Federal Republic of Yugoslavia was granted membership on
November 1, 2000. Those cases are also referred to partial succession where a full
sovereign State loses part of its independence through entering into a federal State,
or coming under suzerainty or under a protectorate, or when a not fully sovereign
State becomes fully sovereign.1
It is to be noted that in both types of State succession there is a common
factor, i.e., one or more sovereigns substitute for another; and therefore, the
distinction is merely an abbreviated way of defining the extent of the change and
the transmission of the rights and obligations of the old State to the new State.

State Succession—Voluntary and by Revolt:

Universal as well as partial succession may take place either voluntarily
or by revolt. When the replacement is peaceful, disruption of legal continuity
is minimised by mutual adjustment. One of such methods is the conclusion
of ‘inheritance’ or ‘devolution’ agreement which is concluded between the
precedessor State and the successor State. Under the agreement, the latter
agrees that the rights and obligations of the former shall devolve upon it. Such
agreements declare the affirmative attitude of the successor States regarding
the devolution of the rights and benefits, obligations and responsibilities of the
former. It is to be noted that the inheritance agreements have been concluded
very frequently between the predecessor and the successor States, particularly, in
cases of emergence of a dependent territory into a sovereign State after the Second
World War. For instance, such agreements have been concluded between Burma,
Ceylon, Cyprus, Ghana, Jamaica, Jordon, Trinidad and Tobago, Malaya, Nigeria,
Sierra Leone with the United Kingdom; Morocco, Laos, Vietnam, Cambodia and
Ivory Coast with France. Other States which have concluded agreements are the
Netherlands and Indonesia, New Zealand and Western Samoa, Italy and Somalia.
Such agreements, in their effect minimise the disruptive consequences of the
change of sovereignty and to a corresponding extent maintain legal continuity.
However, this system was not found satisfactory by many new States, such
as Tanganyika, Uganda, Kenya and Burundi, and they resorted to unilateral
declarations, providing for a transitional period during which treaties entered
into by the predecessor State would continue in force and be subject to review as
to which should be accepted and which rejected. In the case of bilateral treaties
those not surviving under customary international law would be regarded as
having terminated at the end of the period. Other methods by which the problem
of succession of States is simplified include the ‘exchange of letters’ between the
successor and the predecessor States.
But where the change occurs through revolt, as in the case of Bangladesh, the
gap between the predecessor State and the successor State is not bridged. The result
is that the transferred territory ‘quickly becomes a prey to chaos and anarchy’.

1. Oppenheim, op. cit., 209.

202 International Law and Human Rights

Succession of State and Government:

The expression ‘succession of State’ is different from that of ‘succession of the
Government’. In the latter, personality of a State, in contrast to a case of succession
of State, is not affected, but a change occurs either in the organisation of the
Government or in some constitutional structures of a State. The ‘government’ acts
as an agent of a State viewed as a person.1 Phillimore says :
it (State) may change its form of civil constitution or government from a
Republic to a limited monarchy, from Aristocracy to a Despotism, or to any
imaginable shape, but it does not thereby lose its personality.2
By a change in the government, the continuity of State’s personality is neither
disrupted, nor does it bring about any juridicial change in the State. Its rights and
obligations are generally continued by virtue of the continuity of the personality.
Kent says :
Where, therefore, a change has taken place in the internal form of the
government or in the person of the ruler, as far as its foreign relations are
concerned the State is unchanged, all its treaties remain in force, its public debts
in full existence; its public domain and property pass into the hands of the new
government.3
Thus, the succession of a government by another government does not pose
much problem. Where the change occurs by peaceful and constitutional means the
problem is minimised. The succeeding government generally takes over all the
rights and liabilities of its preceding government. However, in those cases where
the change occurs through a coup d‘etat, some problems arise as to the rights and
obligations of the preceding government.
The result obtained in the cases of succession of State is quite different from
those of succession of a government. In the former case, the personality itself of
an international person is replaced by another. When a new government takes
up the reins of office, questions may raise as to the extent to which the rights
and obligations of the former government are extinguished, and as to the extent
of which the new government becomes entitled to such rights or bound by such
obligations. In the case of succession of States the problem is as to what rights and
obligations of the extinguished State pass to the successor State. In the former case,
there occurs a replacement of the government within the State while in the latter
there occurs a replacement of one State by another.

THEORIES OF STATE SUCCESSION

(1) Universal Succession Theory:

The earliest doctrine of State succession treats the process as the substitution
of one State for another. According to this view, the successor State enjoys all the
rights and discharges all obligations of its predecessor. The new State is regarded
as a direct heir of its predecessor’s personality in the same way as the heirs
continued the personality and legal relations of the deceased in private law. This
1. Westlake, ‘International Law’, Vol. I, Second Edition, p. 58.
2. ‘Commentaries Upon International Law’, 3rd Edition, Vol. I, p. 148 (bracket added).
3. ‘Commentary on International Law’, edited by Abdy, Second edition (1877) p. 95.
 State Succession 203

theory may be described as the doctrine of universal Succession because all the
rights and duties of the predecessor pass ipso jure to the successor as elements of
the estate. The idea of the succession in this sense has been derived from Roman
Law, where the heir took up the person of the deceased and stepped into all his
rights and liabilities. The Roman law notion of succession upon death into the field
of State succession in International Law was first introduced by Grotius and was
adopted by Pufendorf and Vattel.
However, the theory of Universal Succession suffers from a number of defects.
It has been assailed by many writers on several grounds. Firstly, the analogy of the
succession of private law has been characterized as inaccurate.1 In the domain of
private law, the concept involved an idea of compulsory representation whereas,
according to Wheaton, in case of State succession, it was not so.2 Secondly, there is,
in his view, an apparent defect too, inasmuch as rights and duties of individuals
and those of States are not comparable in the sense that the former are personal
to a real being, and the latter to a fictional one.3 Thirdly, according to this theory,
the successor State would have to be regarded as bound by all kinds of treaties
including personal and commercial treaties as well as all the debts and contracts
of the predecessor State. To discharge such obligations which were, exclusively
personal was, to say the least, a matter of great inconvenience for the successor. In
practice, States have not considered themselves to have remained bound by them.

(2) Continuity Theory:

Suffering as it did from such shortcomings, the Roman Law theory of
State succession did not find acceptance and could not be expected to become
transformed into practice by the States. These defects have led Max Huber
to contribute another theory which he has referred to continuity or universal
succession theory. His theory is, in fact, modification of the universal theory.
According to him the notion of succession is a general one in law, and belongs
exclusively neither to private nor to public law. Succession is substitution plus
continuation. The successor steps into the place of the predecessor and continues
his rights and obligations so far the succession of private and public law agree.
Thus the successor State firstly, substitutes the personality of its predecessor and
secondly, takes all the rights and obligations of the predecessor as a bundle of
jura. All the benefits and burdens of the predecessor pass to the successor State.
However the new State does not discharge those obligations of the predecessor
which are essentially political in character. This doctrine was followed by Westlake
in toto.4
The theory has been criticised on several grounds. Firstly, in cases of cession,
this doctrine becomes quite inapplicable. According to Wheaton, ‘the State which
carries out the cession remains in existence, and is clearly liable to other States for any
1. Lawrence, op. cit., p. 89.
2. Wheaton, ‘Elements of International Law’, Vol. I, Sixth Edition, p. 124 p. 62.
3. O‘Connell says : “Personality, as a judicial term signifying the homogenous and
autonomous character of a community, is not transmissible. The Roman Law analogy is
justifiable only as a metaphor, and the validity of the metaphor, is not substantiated by an
examination of the body of diplomatic and judicial practice” (Succession in International
Law and Municipal Law Vol. I, International Relations, p. 24).
4. Op. cit., p. 69.
204 International Law and Human Rights

obligations which it has undertaken; it would be absurd to contend that by ceding

territory to a third party a State could evade its obligations to a State with which
it was in treaty agreement.1 Secondly, this theory appears to be quite inconsistent
with the practice of the States. Rights and obligations of the predecessor State are
not transferred unless there is a treaty agreement. Thus conquering States act on
the basis of taking the utmost that they can acquire by conquest and admitting the
minimum of obligations. Thirdly, ‘whatever succession the successor States’ admit
is not as of any right but ex-gratia, and they exercise in the freest manner the right to
modify even those obligations which they recognize in any way.2

(3) Negative Theory:

The lack of correspondence between the universal succession theory and
international practice gave rise to another theory which is altogether different from
the above theories. According to this view, the successor State does not succeed
to the personality of the precedessor. It is contended that the sovereignty of the
predecessor State over the absorbed territory is abandoned. Accordingly, the
successor State exercises jurisdiction over the territory not by virtue of a transfer of
power from its predecessor, but because it has acquired the possibility of expanding
its own sovereignty in the manner dictated by its own will.3 The succeeding State
is in no way bound to respect the rights and obligations of the State which has
ceased to exist.4 International personality of the defunct State disappears with its
extinction. The successor States starts its life in the form of the ‘clean slate’ principle,
under which new States acquire sovereignty free from incumbrances created by the
predecessor sovereign. The theory has also evoked criticism. Although according
to this theory succession involves a replacement of sovereignty, this should not
mean that International Law imposes no obligations upon the new sovereign.5 The
change of sovereignty does not mean an automatic collapse of the legal system.
There are certain rights as well as obligations which are discharged by the successor
State,6 on the basis of equity, justice and reasonableness. It becomes the duty of the
State to discharge the obligations since it accepts the benefits attached to it. This is a
rule which appeals to human conscience. Moreover, negative theory does not solve
any of the problems which are bound to arise on change of sovereignty.
It appears, therefore, that no theory can provide solution to all the problems
of State succession. While the universal succession theory is impracticable from
the point of view of the successor State, the ‘negative’ theory refuses to admit
any general principle. It would leave the new State’s discretion to apply any rule
which conforms to its interest. It may apply different theories in different cases or
1. Wheaton, op. cit., p. 63.
2. Ibid, p. 62.
3. Graupner, ‘Nationality and State Succession’, Transactions of the Grotius Society, ‘Vol
XXXII (1946) p. 89.
4. Cahn, ‘The Responsibility of the Successor State for War Debts’, AJIL Vol. 44 (1950) p. 478;
Lester, ‘State Succession to Treaties in the Commonwealth, 8 ICLQ Vol. 12 (1953) p. 475;
Graupner, op. cit., p. 94; Hall, op. cit., p. 114.
5. Starke says that sovereignty of a State means the residuum of power which it possesses
within the confines laid down by International Law, ‘Starke’s International Law’,
Eleventh Edition (1994) p. 91; Also see Oppenheim, op. cit., p. 158.
6. Mc‘Nair says that the successor State is bound by real or dispositive treaties. (The Law of
Treaties (1961) p. 655).
 State Succession 205

at different times after taking an account of all the special features presented by
the succession itself. Hence, each category of legal events should be considered
separately and no single theory can fulfil the needs for all occasions.1

Law of State Succession:

A change of territorial sovereignty may be brought about by different ways
including cession, annexation, secession, union, merger and dismemberment.
Besides these, at the present time, the most common form of State succession is
the emergence to full sovereignty of a number of territories which were hitherto
either colonies or trust territories. In whatever form the change may take place,
there arises certain complexities, for example in relation to devolution to treaties,
contracts, public rights, private rights, public debts, private debts and torts. The
problems in relation to these matters arise due to the disruption of legal continuity.
The consequence is that the new States find themselves in a legal vacuum. The
problem is different in the case of total succession from what it is in the case of
partial succession. In case in which succession is said to be total, the central
problem is as to what rights and obligations devolve, i.e., whether a particular
right or obligation has devolved or not. In cases of partial succession, a further
problem is of the extent to which a devolving right or obligation has devolved.
In order to avoid the complexities which arise from a disruption of legal
continuity, certain rules of law have emerged which constitute what may be
described as ‘the law of State succession.’ This branch of law is based mainly on the
principles of equity, reason and justice. When a State takes the place of another, the
new State is not obliged to fulfil the obligations of the predecessor State, because
usually there is no such contract. However, equity would not permit such complete
freedom to the successor State.2 It is evident from judicial decisions that justice and
reasonableness are equally important in determining the rules of State succession.3
The existing body of law of State succession does not provide a solution
in all the contingencies, which may and do arise. It does not lay down precisely
what rights and obligations of the predecessor State shall be assumed by the new
State. International publicists as well as the municipal courts of various States
admit that such rules as may be said to exist could not resolve the full range of
problems arising from the situation which is referred to succession of States. There
exists no customary law, which could resolve, beyond a few, the various problems
of different nature which emerge and demand a solution. Although some rules
governing a number of situations exist, for example, in relation to private rights
and dispositive treaties, they are not at all sufficient for any generalized inferences.

International Law Commission

Although De Visschar had requested to the League of Nations’ Committee
of Experts for the Progressive Codification of International Law set up in 1924,
to include the question of Succession of States and Governments which had
arisen in international relations during the period between the two World Wars
in the list of topics for codification, his request went in vain. The United Nations,
1. H.O. Agarwal, op. cit., p. 11.
2. O’Connell, The Law of State Succession’, p. 268.
3. See United States v. Percheman, U.S. Supreme Court, 7 Peters, 51 at p. 86-87.
206 International Law and Human Rights

however, acknowledged that the problem of State succession would seem to

deserve more attention in the scheme of codification. Upon the request of certain
eminent International Law jurists, the International Law Commission had decided
in its First Session, held in 1949, to formulate through codification the entire law
on ‘Succession of States and Government’. At that time, the topic was not given
priority by the Commission. But due to the emergence of a number of States on the
international scene, the Commission in 1962, at its Fourteenth Session, decided to
include the topic in its programme of work in its priority list on the recommendation
of the General Assembly.1 In 1967, the Commission made new arrangements for
the work on the topic of State succession and Government. The topic was divided
into three separate headings : (1) Succession in Respect of Treaties; (2) Succession
in Respect of Rights and Duties resulting from sources other than Treaties; and (3)
Succession in respect of membership of international organizations.
The Commission on the lines of the above division decided to frame the
entire law of the State succession which has become by then, an urgent need of
the international community. A Convention was adopted on August 22, 1978 on
‘Succession in Respect of Treaties’ whereby the rules regarding the succession to
treaties were made.2 Later, on April 7, 1983, Vienna Convention on Succession of
States in respect of State Property, Archives and Debts3 was concluded in 1983.
A study of the topic of succession in respect of membership of international
organisation has been left aside for the time being.

CONSEQUENCES OF STATE SUCCESSION.

The problem of State sucession is one of the most disputed areas of
international law due to divergent State practice and the views of jurists.
Some writers have expressed the extreme view by saying that a succession
of international persons never takes place because the rights and duties of an
international person disappear with the extinguisted person. The view does not
appear to be sound in the sense that no doubt with the extinction of an international
person its rights and duties as a person disappear, but certain rights and duties do
devolve upon an international person from its predecessor. Since this devolution
takes place through the very fact of one international person following another
in the possession of State territory, a succession of international person to those
devolved rights and duties clearly takes place. But the answer of the question as
to what extent the rights and duties of the predecessor devolve on the successor
is uncertain and controversial. With the extinction of an international person, its
rights and duties as a person disappear. But certain rights and duties do devolve
upon the successor State. Some of the consequences of a succession of States are as
follows :

(1) Treaties:
The effect of change of sovereignty in relation to treaties has always been

1. See General Assembly Resolution 1686 (XVI), December 18, 1961.

2. For the text of the Convention See IJIL Vol. 18 (1978) p. 393. The Convention came into
force on November 6, 1996.
3. For the text of the Convention See ILM 22 (1983) p. 298. The Convention shall come into
force when it has been ratified by 15 States. It has not yet come into force.
 State Succession 207

a matter of controversy because of its different varieties, and of the different

circumstances under which they are concluded. No single answer could possibly
be given to all the categories of treaties. The effect of succession of States on
different kinds of treaties are as follows :
(a) Personal Treaties (or Political Treaties).—Treaties which are concluded
due to the personal influence of the contracting parties such as those relating to
peace, alliance, mutual assistance and friendship, neutrality, guarantee, non-
aggression and of pacific settlement are not binding on the successor States.
Oppenheim says that no succession takes place with regard to rights and duties of
the extinct State arising from its political treaties.1 Formerly, they were regarded
as ending with the extinction of the personality of a State, however, at present,
this rule has been considerably modified. The successor State, generally, continues
all those treaties which conform with its interests and suits to it in the changed
circumstances. The continuance or termination of a treaty depends upon the
relations between the successor State and the other contracting parties. Thus, it is
left open to the discretion of the successor State to pick and choose from amongst
those which it inherits.
(b) Commercial Treaties.—Commercial treaties, like the political treaties
are also not binding on the successor State. Only those commercial treaties are
assumed which can be reconciled with the new order of things, otherwise they are
generally extinguished.
(c) Administrative Treaties.—Administrative treaties such as treaties
of judicial assistance, avoidance of double taxation and extradition treaties do
contain political elements, but they are different from political treaties stricto
sensu. The conclusion of administrative treaties is motivated by the desire of
having proper administration of justice and in some cases for the suppression
of crimes. The continuation of such treaties depends upon the discretion of the
successor States. Practice of States regarding succession to extradition treaties is
not uniform. However, it is desirable, in order to have an effective international
judicial administrative system and in order to suppress crime that such treaties are
continued by the successor State.
(d) Dispositive Treaties.—‘Dispositive treaties’ or real or localized treaties
create rights in rem. Such treaties create rights which are of permanent nature and
are independent of the personality of the State exercising sovereignty. There is an
essential difference between a personal and a real treaty. While the former is in the
nature of a contract, the latter is in the nature of conveyance.
(i) Servitudes.—State servitudes is the term sometimes used to denote
exceptional restrictions made by a treaty or otherwise on the territorial supremacy
of a State by which a part or the whole of its territory is in a limited way made to
serve a certain purpose or interest of another State.2 Thus, for example, a State may
by a treaty be obliged to allow the passage of troops of a neighbouring State, or
might in the interest of a neighbouring State be prevented from fortifying a certain

1. Op. cit., p. 211.

2. Oppenheim’s, International Law, op. cit., p. 670-71. Also See Starke’s International Law,
Eleventh Edition (1994) p. 179.
208 International Law and Human Rights

town near the frontier.1 It may be noted that restrictions on sovereignty of a State
is a self-imposed restriction and grant of servitude does not amount to cession
of territory. Rights respecting the maintenance of river banks and international
railway connections, navigation of national waterways, rights to draw on such
waterways for irrigation, rights to fishing are a few other examples of such treaties.
It has been asserted by almost all the writers that such treaties do not extinguish on
the change of sovereignty. In other words, successor State remains bound by such
treaties as the emergence of a State has no effect on treaties which have already
taken effect. Such treaties being conveyance, continues in spite of the change of
sovereignty.
It can be said that in International Law a rule exists as to the continuance of
servitudes. Article 12, Para 1 of Vienna Convention of 1978 also lays down that a
succession of States does not as such affects (a) obligations relating to the use of any
territory, or to restrictions upon its use, established by a treaty for the benefit of any
territory of a foreign State and considered as attaching to the territories in question;
(b) rights established by a treaty for the benefit of any territory and relating to the
use, or to restrictions upon the use, of any territory of a foreign State are considered
as attaching to the territories in question.
International Court of Justice in the case concerning Gabcikovo-Nagymaros
Project (Hungry v. Slovakia)2 stated that the contents of the Treaty concluded by
Hungry and Czechoslovakia in 1977 for the building of dam structures in Slovakia
and Hungry for the production of electric power, flood control and improvement
of navigation on the Danube indicates that it must be regarded as establishing a
territorial regime within the meaning of Article 12 of 1978 Vienna Convention.
The Treaty created rights and obligations “attaching to” the parts of the Danube to
which it relates; thus the Treaty itself could not be affected by a succession of State.
(ii) Frontier Agreements.—Demarcation of boundary lines is another
example of dispositive treaties. State practice and writings of the jurists show that
they are also considered as binding on the successor State. Waldock in his first
Report on Succession of States and Governments in Respect of Treaties in 1968
declared that ‘the weight both of opinion and practice seems clearly to be in favour
of the view that boundaries established by treaties remain untouched by the mere
fact of a succession.....(and) State practice in favour of the continuance in force of
boundaries established treaty appears to be such as justify the conclusion that a
general rule of international law exists to that effect.’ The principle regarding the
continuity of boundary treaties is also enshrined under Article 62 Para 2 of the
Vienna Convention on the Law of Treaties which stipulates that a fundamental
change in circumstances may not be invoked as a ground for terminating or
withdrawing from a treaty that established a boundary. Article 11 of the Vienna
Convention on Succession of States in Respect of Treaties of 1978 also lays down
that ‘a succession of States does not as such affect : (a) a boundary established by
a treaty; or (b) obligations and rights established by a treaty and relating to the
regime of a boundary’. Bedjaoui has rightly stated that in principle the territory
devolves upon the successor state on the basis of pre-existing boundaries.3

1. Ibid.
2. Judgment was delivered by the Court on September 25, 1997.
3. Year Book of the International Law Commission, 1968, Vol. II p. 112.
 State Succession 209

If a boundary is demarcated through a treaty concluded for a specific period,

the boundary shall be binding on the parties even after the expiry of the treaty. The
boundary between Libya and Chad was defined by the Treaty of Friendship and
Neighbourliness concluded in 1955 for a period of 20 years. A dispute occurred
between the two regarding the existence of the boundary which came before the
International Court of Justice for its determination. While Libya contended that
there is no existing boundary and asked the Court to determine it, Chad proceeded
on the basis that there is an existing boundary. The Court in the case concerning
the Territorial Dispute (Libya and Chad) stated that :
the establishment of this boundary is a fact which, from the outset, has had
a legal life of its own, independently of the fate of the 1955 Treaty. Once
agreed, the boundry stands, for any other approach would vitiate the
fundamental principle of the stability of boundaries.1
A boundary established by treaty thus achieves a permanence which the
treaty itself does not necessarily enjoy. When the boundary has been the subject
of agreement, the continued existence of that boundary is not dependent upon the
continuing life of the treaty under which the boundary is agreed. The Court found
that the boundary between Libya and Chad is defined by the Treaty of 1955.2
Similarly, the International Court of Justice in the Territorial and Maritime
Dispute (Nicaragua and Colombia)3 stated that it is a principle of international law
that a territorial regime established by treaty “achieves a permanence which the
treaty itself does not necessarily enjoy” and that the continued existence of that
regime is not dependent upon the continuing life of the treaty under which the
regime is agreed.
Although it is clear in law that a boundary established by treaty is not to be
called in question by the mere fact of a succession of States, it does not follow that
boundaries established by treaties are never to be questioned. In Somalia dispute
both Kenya and Ethiopia stated that the colonialist boundary treaty fails to be
consistent with the principle of self-determination. But the above may be treated
as an exception to the rule that boundary treaties are continued by the successor
State.
(e) Multilateral Treaties.—Multilateral treaties are generally continued by
the successor State because they are concluded mostly on general subjects which
are beneficial to almost all the States of the international community. However,
the successor State is not bound to continue such treaties in all the cases and
therefore succession to multilateral treaties cannot be regarded as a general rule of
international law. If a multilateral treaty is not compatible with the interest of new
State, it may be extinguished. When the successor State chooses to continue any
multilateral treaty, it has to notify in writing to the depository to the treaty or, if
there is no depository, to the parties or the contracting States.4

1. ICJ Reports (1994), pp. 6, 37.

2. Ibid.
3. Judgment was delivered on December 13, 2007.
4. See Article 22 of the Vienna Convention of 1978.
210 International Law and Human Rights

(2) Membership of International Organizations:

Constitutions of most of the international organisations exclude the
possibility of succession, and therefore, the question of succession of membership
does not arise. Each and every State is required to apply a fresh in order to become
a member of such organisation irrespective of the fact that its predecessor was a
member of that particular organisation. However, in the case of a Union of States,
the new ‘Union State’, will subject to any special rules and procedures of the
organisation in question, in its own name take over the previous membership of its
competent parties without having to apply for membership de novo. This practice
was followed by the United Nations when the United Arab Republic in 1958
assumed membership of Egypt and Syria, and when Tanzania did the same in 1964
in place of Tanganyika and Zanzibar. Where the predecessor State is dissolved and
new States are created, such States will have to apply a new for membership to
international organisations. For instance, the new States of the Czech Republic and
Slovakia were admitted as new members of the United Nations on January 19, 1993
after the dismemberment of Czechoslovakia.

Indian Membership in the United Nations:

When India and Pakistan became independent, a question arose as to
the succession of the membership of the United Nations. (British) India was an
original member of the United Nations. The Charter was signed by India on June
26, 1945 and was ratified on October 30, 1945. When India and Pakistan became
new Dominions, the latter was required to apply for membership as a new
member whereas India was to continue the membership of the United Nations in
accordance with the Indian Independence (International Arrangements) Order
of 1947. The Order was communicated to the United Nations on August 27, 1947
by the representative of India. When the question of membership of these two
Dominions was placed before the Secretariat of the United Nations, the Assistant
Secretary-General for Legal Affairs was asked for his opinion.1 The latter in his
report laid down that :
It would.....appropriate for the Secretary General to suggest to the
Government of India, that in view of the change in sovereignty, it would be
desirable to have new credentials issued to the Indian representatives by the Head
of the Government or the Foreign Minister of the new Dominion of India.
He reported that the representatives of India in the Economic and Social
Council and the representatives of India participating in the discussion of the
Indonesian case in the Security Council should be requested to submit new
credentials after August 15, 1947 issued by the Foreign Ministry of the new
Dominion of India.
A question arises as to why the new credentials were required to be submitted
by the Indian representatives at all if it was regarded that India continued the
juristic personality of British India? In cases where a part of the territory is seceded
from a member of the United Nations, the latter is not required to sign the new
credentials. Secession of a part of territory does not affect the membership in the
United Nations. It appears that while the report recognised that there was a change
1. See U.N. Doc. A/5209; A/c N 4/149; and Add 1.
 State Succession 211

of sovereignty in the juristic personality of India, it continued the membership

of British India, perhaps, because there was no precedent for this situation in the
United Nations.
The report was vehemently criticised in the General Assembly and the
Security Council.1 The practice of the United Nations in the instant case was
therefore not sound. The question of membership of India was required to be
determined in accordance with the provisions of the Charter of the United Nations.
India was also an original member of many international organisations before
it acquired a Dominion status. For instance, it was one of the ‘original members’
of the International Monetary Fund (IMF), International Bank for Reconstruction
and Development (IBRD), International Labour Organisation (ILO), International
Civil Aviation Organisation, (ICAO); it was one of the ‘member nations’ of the
Food and Agriculture Organisation (FAO); World Health Organisation (WHO)
and International Tele-communication Union and one of the ‘full members’ of the
United Nations Educational, Social and Cultural Organisation (UNESCO). When
the new Dominions were set up in India on August 15, 1947 membership of all
these international organisations devolved upon India. However, the continuance
of membership was not automatic as generally occurs where a part of the territory
is seceded from an existing member. India was required to submit new credentials
to all these organisations perhaps on the basis of the stand taken by the United
Nations. These organisations were required to exercise the question of India’s
membership in the light of their own constitutions.

Russian Membership in the United Nations:

Similarly, when the Soviet Union was dismembered into 12 independent
States in 1991, all the successor States excepting Russia and those which were
already members were required to apply a fresh in order to become members of
the United Nations. As to the membership of Russia it was said that Russia being
the successor of the Soviet Union is not required to apply for new membership.
Russia therefore continued the membership of the USSR in the United Nations.
The above was supported by the decision of the Council of Heads of State of
the Commonwealth of Independent States on December 21, 1991 and Russia
continued the membership of the USSR in the United Nations including permanent
membership of the Security Council and other international organisations.2

(3) Public Property:

Vienna Convention on State Succession in respect of State Property, Archives
and Debts of 1983 under Article 8 defines State Property for the purposes of the
Convention as property, rights and interests which, at the date of the succession of
1. The representative of Argentina, Arce maintained in the Second session of the General
Assembly that the division of India into two new Dominions effected the disappearance
of the existing member State, and consequently, it was not proper, as a legal matter, to
conclude that one of the two Dominions should be considered as the successor. Both the
Dominions, it was asserted should be treated equally (U.N. Doc. A/c. 1/187, October 2,
1947.) When the matter came before the Security Council on August 18, 1947, France was
of the view that Pakistan along with India inherited the original membership of India
(U.N. Doc. A/c N. 4/149, p. 5).
2. For the membership of Yugoslavia see Chapter ‘United Nations Organisation’.
212 International Law and Human Rights

States, were, according to the internal law of the predecessor State owned by that
State. It is an established principle of International Law that the successor State
takes over all the public and proprietary rights of its predecessor State.
State immovable property such as fixed military installations, prisons,
airports, government offices, State hospitals and State educational institutions
situated in the territory to which the succession relates, passes to the successor
State. The above has been provided in the Vienna Convention of 1983 under Article
14 (with regard to the transfer of part of State to another State); Article 15(1)(a)
(with regard to newly independent States); Article 16 (upon a uniting of States to
form one successor State), Article 17 (with regard to separation of part of a State to
form a new State) and Article 18 (with regard to the dissolution of a State).
As to State movable property connected with the territory in question is
concerned the Vienna Convention of 1983 provides that movable State property
of the predecessor State connected with the activity of the predecessor State in
respect of the territory to which the succession of States applies shall pass to the
successor State. As to movable property outside the territory in question Article
17(1)(c) of the Vienna Convention of 1983 provides that such property (in the case
of separation of part of a State) shall pass on to the successor State in an equitable
proportion. Article 11 of the Vienna Convention on State Succession in respect of
State Property, Archives and Debts of 1983 lays down that in general the successor
State takes over the predecessor’s State property without compensation.

(4) State Archives

Archives has been defined in the present context under Article 20 of the
Vienna Convention of 1983 as all documents of whatever date and kind, produced
or received by the predecessor State in the exercise of its functions which, at the
date of the succession of States, belonged to the predecessor State according to its
internal law and were preserved by it directly or under its control as archives for
whatever purpose.
Articles 21 to 24 of the Vienna Convention of 1983 provides that generally,
such archives shall pass at the date of succession and without compensation
and without as such affecting archives in the territory owned by a third State.
The Convention further provides under Article 28 Para 2 that the passing of the
appropriate reproduction of part of the State archives of the predecessor State
of interest to the territory concerned is to be determined by agreement, in such
a manner that each of these States (i.e., predecessor and successor) can benefit
as widely and equitably as possible from those parts of the State archives of the
predecessor State. The Convention under Articles 28, 30 and 31 also contain a
paragraph explaining that the bilateral 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.

(5) Public Debt:

Public debt or State’s debt as referred by the Vienna Convention on the
Succession of States in respect of State Property, Archives and Debt of 1983 has been
defined as any financial obligation of the predecessor State arising in conformity
 State Succession 213

with International Law towards another State, an international organisation or any

other subject of International Law. The above definition excludes the predecessor
State’s debts towards private persons.
Normally, no State considers itself to remain bound by the debts and liabilities
of the predecessor State. In several cases of State succession, the above principle
appears to have been complied with. However, if the successor State accepts the
benefits of the predecessor State, it becomes a moral obligation to accept its burden
as well.1 On this basis, where the succession takes place peacefully, successor
State assumes public debts on the basis of proportionality of benefits received.
Such an arrangement is made usually in the treaties concluded between them.
The agreement between India and Pakistan 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, as established upon the basis of proportionality relating to its
share of the assests of British India that it received, became a debt to India.
No obligation accrues for a successor State in respect of a public debt incurred
for a purpose hostile to the successor State or for the benefit of some State other
than the predecessor State.2 Thus where the debts do not relate directly to the
governance of the former State, the private creditors of an extinct State may, in
practice, be unable to secure payment of the debts in the courts of the successor
State unless that State has expressly or implicity recognised them.3 The private
creditors do not acquire any right directly under International Law against the
successor State. However, where the private creditor is a foreigner, the position
is different in the sense that he may seek the protection possessed by his home
State who may exert pressure upon the successor State for the purpose of making
payments of all debts.4 Convention on the Succession of States in respect of State
Property, Archives and Debts (1983) lays down a general rule under Article 36
that a succession of States does not as much affect the rights and obligations of
creditors.

(6) Contracts:
Law relating to contract on succession of a State is not well established. State
practice on this point is also not uniform. State practice suggests that succession
of contracts depend upon the discretion of the successor State. However,
concessionary contracts which are of the local nature, and which create permanent
rights such as digging of mines, laying and running of railways, building of rocks
on a river are normally respected by the successor State. In such cases, it is not the
contract as such which passes on to the successor State, but what is continued are
the rights acquired under it and obligations incurred.5 In the Mavromatis Palestine
Concession case (1925),6 the Permanent Court of International Justice stated that
the concessions which had been granted by Turkey to a Greek national would
1. Starke’s International Law, Eleventh Edition (1994) p. 301.
2. Ibid.
3. Oppenheim’s International Law, op. cit., p. 215.
4. Ibid.
5. Kaeckenbeeck, ‘The Protection of Vested Rights in International Law’, BYIL Vol. XVIII
(1936); S.K. Agarwala, ‘International Law, Indian Courts and Legislation’, p. 44.
6. PCIJ Series A, No. 2, p. 28 and (1925), Series A, No. 5.
214 International Law and Human Rights

continue to be binding on Great Britain, the Mandatory Power, in respect of

Palestine. However, no general rule can be laid down in favour of succession to
concessionary contracts. Each case should be decided on its merits.

(7) Torts:
Claims to unliquidated damages occur where the matter in dispute has
not come before the judicial authorities and the issue of compensation has to be
determined by a competent court or tribunal. The successor State is not bound to
assume the unliquidated damages for the torts or dielicts of the predecessor State
in view of their being of personal nature.1 Brown’s2 case is relevant in this regard.
Brown, an American citizen, went to South Africa in 1894 and became
interested in digging of gold mines in the Witfontein farm. Under the prevailing
system, the State being the owner of all minerals was accustomed from time to time
to formally designate the mines as public gold fields by issuing proclamations.
In 1895, a proclamation was duly issued by the State President declaring the
eastern portion of the Witfortein farm a public digging. Many individuals and
corporations proceeded to take advantage of the proclamation. Brown also made a
formal application for 1200 prospecting licences, but the licences were not given to
him. The Government withdrew the proclamation issued earlier. Brown protested
and made a tender of the money for the licences which was refused. However,
1200 mining claims were in fact pegged and Brown subsequently asserted title to
them on the ground that the withdrawal of the original proclamation was invalid,
and there was no right to refuse the issuance of the licences. Brown filed a suit in
the High Court of the South African Republic demanding the licences to cover the
1200 claims which he had already pegged off. He also filed an alternative claim for
damages amounting to £ 3,72,000. Brown was issued licence for one month after
it was found by the Court that the withdrawal of the original proclamation was
invalid. But Brown finding that such licences were of no practical value, he pressed
for the alternative claim of the damages. In 1900 South African Republic was
annexed by Great Britain. The United States, on behalf of Brown claimed damages
against Great Britain which was submitted to arbitration.
It was observed by the arbitration that Brown had substantial rights of
a character entitling him to an interest in real property or to damages for the
deprivation thereof, and that he was deprived of these rights by the Government
of the South African Republic which amounts to denial of justice within the settled
principles of International Law. It was further observed that the liability never
passed to or assumed by the British Government. It should be borne in mind that
this was simply a pending claim for damages against South Africa and never
became a liquidated debt of the former State. The decision of the Tribunal was that
the claim of the United States be disallowed.
If however, the amount of the claim has become liquidated by agreement of
the parties or through a judgment or award of a tribunal, the successor State may
be bound to settle the claim of this liquidated claim.3

1. Oppenheim’s International Law, op. cit., 218.

2. AJIL Vol. 19 (1925), p. 193.
3. Starke, op. cit., p. 303.
 State Succession 215

(8) Laws:
It is a recognized principle of International Law that law once enforced are not
changed merely by the change of sovereignty over a territory. They are continued
by the successor State even if they are inconsistent with the newly acquired status
of a State,1 unless new laws are enacted by the successor State. If the formerly
applicable laws are to continue to apply; either in whole or in part, they-together
with rights and duties arising under those laws-will do so as a result of the consent,
express or implied, of the successor State, in whose courts those laws, rights and
duties will primarily have to be enforced.

(9) Nationality:
Nationals of the predecessor State as a rule lose their nationality at the
extinction of the State. They become the nationals of the successor State. However,
it is desirable to give an opportunity to them to decide within a reasonable period as
to whether they wish to be the nationals of the new State or of the predecessor State
keeping in view of the recent developments in the rights of self-determination, in
international humanitarian law and human rights.
International Law Commission in 1999 adopted final draft articles on the
nationality of natural persons in relation to the succession of States wherein it
stated that every individual who on the date of the succession of the States had the
nationality of the predecessor State, irrespective of its mode of acquisition, has the
right to the nationality of at least one of the States concerned.

(10) Private Rights:

A change of sovereignty does not itself terminate private rights dependent
on the previous sovereign’s laws.2 The practice of States tends to establish as a rule
of international law the duty of a successor State to respect the acquired rights
of private persons, whether proprietory, contractual or concessionary. In United
States v. Perchman, Chief Justice Marshall stated :
The modern usage of Nations, which has become law, would be violated that
sense of justice and right which is acknowledged and felt by the whole civilized
World would be outraged if private property should be generally confiscated
and private rights annulled.3 In the Settlers of German Origin in Territory Ceded
by Germany to Poland4 the Permanent Court of International Justice held that
the political origin attaching to the rights, and rendering them obnoxious to the
successor State, does not relieve it of the duty to respect acquired rights of this
character. Thus there is a presumption that former local laws continue to apply
and that a change of sovereignty affects acquired private rights as little as possible.5
It is to be noted that when the study of the International Law Commission on
Succession in Respect of Rights and Duties other than Treaties shall be completed
and conventions will be adopted like the Convention on Succession of State

1. See Peter Pazimany’s case (1933) PCIJ Series A/B. No. 61 p. 237.
2. Oppenheim, op. cit. p. 216.
3. U.S. Supreme Court, 7 Petens, 51 at pp. 86-87.
4. PCIJ (1923), Series B, No. 6 pp. 35-36.
5. Oppenheim, op. cit. p. 216.
216 International Law and Human Rights

in Respect to Treaties and in respect of State Property, Archives and Debts, the
confusion and uncertainty as to devolution of these rights shall be minimised. But
the codification of the law of succession would be of practical utility only when the
conventions are ratified by the successor States. If the new State does not become a
party to the conventions, it shall not be bound by their provisions and in this case
the new State would decide itself as to which rights and obligations shall devolve
upon it. It implies that in such cases efforts made by the Commission in codifying
the law on the topic would be questionable. However, the conventions are likely
to have important effects in achieving general agreement as to the content in law
which they codify and thereby establishing it as the accepted customary law on the
matter. A new State, though not formally bound by the conventions, would find
in them the norms by which to be guided in dealing with questions arising from
succession of States. Thus, the conventions are likely to provide guidance to the
States in all the cases of succession as to the assumption of specific obligations and
rights of the predecessors. The new State would come to know about the existing
law on the subject. Although it is a sovereign right of a State to deal with such
matters on its own accord, it would be difficult to go ahead against the provisions of
the conventions unless some strong grounds are put before the World community.

State Succession and India:

India and Pakistan became new Dominions on August 15, 1947 through
the Indian Independence Act of 1947. The creation of the ‘two independent
Dominions’ in India raised a question as to whether they were created out of the
result of dismemberment of (British) India, or it was a case of secession of certain
parts of territories, forming Pakistan, from India.1 The Dismemberment occurs
when a State breaks up into fragments in the sense that two or more new States
are formed within its territory. Replacement of the Soviet Union by 12 Republics
is an instance of dismemberment. In such cases, the existence of the former State
comes to an end. Its personality is replaced by two or more new States. In the case
of secession, certain parts of the territory severs itself from an existing State, and
acquires, after such severance, a new international personality.2 In such cases the
personality of the existing State is affected only to the extent by which the territory
is lost. Bangladesh is an instance of secession. If the case of British India is regarded
as to that of dismemberment, it would mean that both the new Dominions acquired

1. The retention of the names of new Dominions had no relevance as to the conception of
International personality.
Names of the new Dominions were chosen by the leaders of the political parties
themselves in view of their convenience. The Muslim League—a political party of India
chose to call itself by the name of Pakistan. The name was based upon the ideology of
Islam.
The new Dominion of India continued to call itself by the old name because the name
had appeared in the United Nations Organisation and in many other international
organisations of which it was formerly a member. Further, although it was expected in
some quarters that the new Dominion would be described as Hindustan, Congress, a
political party never accepted that it was a party representatives of Hindus only. While a
sense of a nation being of Hindus may, be smelled out of the word Hindustan, the name
India does not reflect any such notion.
2. McNair, op. cit., p. 601; O‘Connell. ‘State Succession, International Relations’ Vol. II pp.
88-122.
 State Succession 217

new international personality, and if it is regarded as a case of secession, only

Pakistan is regarded as to have acquired new international personality whereas
India would be deemed to have continued the juristic personality of (British) India.
In other words, rules of State succession shall be applied in the former case in
respect of both the new States, and in the latter case, rules shall be applied only in
the case of Pakistan.
On the status of Pakistan, no controversy arose, it was regarded as a new State.
However, on the status of India a controversy arose as to whether it continued
the personality of (British) India. If the provisions of the Indian Independence
Act of 1947 is analysed, it would be clear that India acquired a new international
personality. The Act was made to set up ‘in India two independent Dominions’.
The Act itself divided the territories of (British) India into two new Dominions.
These provisions kept the Dominions on equal footing. The setting up of the
two Dominions, in (British) India clearly leads to the conclusion that the whole
of the territory was divided into two new Dominions, and thereby it ceased to
continue as an entity. The division of rights, property and liabilities and rights1 and
obligations resulting from international agreements and treaties between India
and Pakistan2 also supports the above view. Had it been a case of secession, the
question of division would have not arisen. The instant a case of dismemberment
of British India, and the principle of succession, therefore, applies to them D.K. Sen
has rightly stated that :—
“.... there does not appear to be the slightest ground for holding the view
that the international personality of India has been extinguished. On the
contrary, it cannot be legitimately disputed that India has ceased to exist as
an international person in consequence of the territorial changes initiated
by His Majesty’s Government, and in her place two new States have come
into being. The principle of succession will, therefore, be applicable in
determining the international obligations of these two Dominions.3
After India became independent, many territorial changes took place. For
instance, Chandernagore,4 Pondicherry and other French settlements of India5
were ceded to India by France; Goa, Daman and Diu and Enclaves of Dadra and
Nagar Haveli were ceded to India by Portugal.6 Sikkim merged with India. They
all constituted the cases of State succession. Assumption of protection over Bhutan
by India through a Treaty of Friendship with Bhutan on August 8, 1949 was also
a case of partial succession. The case of (Cession of) Berubari Union No. 12 and
1. See Indian Independence (Rights, Property and Liabilities) Order, 1947 promulgated
by the Governor-General on August 14, 1947 in order to distribute rights, property and
liabilities of British India to new Dominions.
2. See Indian Independence (International Arrangements) Order 1947 promulgated by the
Governor-General on August 14, 1947 in order to apportion rights and obligations arising
from international agreements and treaties.
3. ‘The Partition of India, and Succession in International Law’, The Indian Law Review,
Vol. I (1948) p. 190.
4. See Treaty of Cession of the Territory of Free Town of Chandernagore (with Protocol) was
signed at Paris on February 2, 1951 (UNTS Vol 203, p. 155).
5. See Constitution (Fourteenth Amendment) Act 1962. It came into force with effect from
August 16, 1962.
6. See Constitution (Tenth Amendment) Act, 1961. It came into force with effect from August
11, 1961.
218 International Law and Human Rights

Kashmir are worth mentioning.

Transfer of Enclaves between India and Bangladesh

When India and Pakistan became independent in 1947 their boundary issue
remained unresolved in the Eastern Province of West Bengal with East Pakistan
(Now Bangladesh). Later, an Agreement was entered into between Prime Ministers
of India and Pakistan on September 10, 1958 with a view to remove the border
area disputes and problems.1 Under the Agreement Berubari Union No. 12 was so
divided as to give half the area to Pakistan, the other half adjacent to India was to
be retained by India.
Accordingly, an amendment in the Constitution (Ninth Amendment) Act,
1960 was made on December 28, 1960, in the Indian Constitution to give effect to the
Agreement from the ‘appointed day’. By the above Amendment, the First Schedule
to the Constitution was amended.2 and the area of West Bengal was reduced.
However, the amendment relating to exchange of enclaves did not come into effect
by virtue of the said Amendment in view of the fact that there being no ‘appointed
day’, the First Schedule appended to the Constitution remained unchanged.
After the Amendment, the cession was held up because it was challenged before
the Indian Court on the ground that cession of territories by India,3 would be an
illegal transfer. However, it was held by the Supreme Court in Ram Kishore Sen and
others v. Union of India that the attempt made by the Union of India to implement
the material provisions of the Ninth (Constitutional Amendment) Act was fully
valid and justified. Before the Agreement could be implemented, East Pakistan
became a Sovereign Democratic Republic in 1971 under the name of Bangladesh.
Since the aforesaid territories were not transferred to Pakistan neither in law nor
in fact, cession of Berubari cannot be regarded as a case of State succession. Ninth
Amendment to that effect was never brought into force. In Union of India and others
v. Sukumar Sen Gupta and others4 it was observed by the Supreme Court that the
Ninth Amendment to the Constitution has remained a dead letter and did not
become effective.
Later, India entered into an agreement with Bangladesh on May 16, 1974
which was signed by the Prime Ministers of India and Bangladesh by which the
land territory between the two countries was completely demarcated, including
the boundary of Berubari Union No. 12.5 Provisions of 1958 Agreement were
substantially changed under the new Agreement. The agreement provided under
Article 1(12) that the Indian enclaves in Bangladesh and Bangladesh enclaves in
India shall be exchanged as expeditiously as possible except the enclaves included
in para 14 of Article 1 of the Agreement which provided that India will retain the
southern half of the South Berubari Union No. 12 and the adjacent enclaves after

1. See Agreement on Border Dispute (with) Joint Communique) signed at New Delhi (UNTS
Vol. 369, p. 81).
2. See Constitutional (Ninth Amendment) Act, 1960.
3. AIR (1966) Supreme Court, p. 644.
4. JT 1990(2) S. Court p. 297 at p. 310; Also See Sugandha Roy v. Union of India, AIR 1983
Calcutta, p. 483.
5. The Pact was signed by the then Prime Minister of India, Smt. Indira Gandhi and the
Prime Minister of Bangladesh, Mujibur Rahman.
 State Succession 219

the ratification of the Treaty.1 The above provisions clearly show that Berubari
Union No. 12 will remain in India as an integral part of India except for a small
strip proving the corridor between Bangladesh and the enclave of Dahagram and
Angarpota which too shall be retained by Bangladesh. It was further provided that
India will grant lease in perpetuity to Bangladesh an area of approximately 178
metres x 35 metres near Teen Bigha to connect Dahagram and of Panbari Mouza,
(P.S. Patgram) of Bangladesh. The Preamble of the Agreement expressly laid
down that the Agreement is being made to complete the demarcation of the land
boundary between India and Bangladesh.
In October 1982, an ‘understanding’ was reached by the exchange of letters
between the Governments of India and Bangladesh to clarify as to what would be
said ‘lease in perpetuity’ in terms of Item 14 of Article 1 of the 1974 Agreement.2
The understanding was described as Terms of Lease in Perpetuity of the Teen
Bigha. It implies that Agreements of 1974 and 1982 did not involve cession of
Indian territories to Bangladesh. As far as lease to Teen Bigha is concerned, it is
submitted that although ‘lease of perpetuity’ was granted to Bangladesh, to enable
it to exercise control over Dahagram and Angarpota, sovereignty over the leased
area continues to vest in India. However, Bangladesh shall have undisturbed
possession and use of the area leased to it in perpetuity.
In Sugandha Roy v. Union of India3 it was held by Justice Bimal Chandra Basak
of the Calcutta High Court :
the implementation of these two Agreements would not involve cession of
any territory to Bangladesh in respect of Teen Bigha.......There is no question
of transfer of sovereignty, wholly or partially, in respect of the said area.
What has been merely done is to enable the Government of Bangladesh
and its nationals to exercise certain rights in respect of the said area which
otherwise they would not have entitled to do.....In spite of such Agreements,
India would still retain its sovereignty, ownership and control of Teen
Bigha.4
In Union of India and others v. Sukumar Sen Gupta and others, the Supreme Court
held likewise. The Chief Justice, Sabyasachi Mukerji held that Berubari Union No.
12 has not been transferred to Bangladesh. He observed :
therefore, the Agreements of 1974 and 1982 did not require to be suitably
notified or included in the Official Gazette....There was no abandonment of
sovereignty and, therefore, no constitutional amendment was necessary......5
Later, a Protocol was signed on September 6, 2011 between the two countries

1. The Treaty was ratified by India and Bangladesh on June 2, 1974 and on November 24,
1974 respectively (See Times of India June 3, 1974 and November 25, 1974).
2. In October, 1982, an understanding was reached between the Governments of India and
Bangladesh in connection with the so called ‘lease in perpetuity’ in terms of Item 14 of
Article 1 of the 1974 Agreement by exchange of letters. This was described as Terms of
Lease in Perpetuity of the Teen Bigha’. In the said letters, it was further provided that the
exchange of the said letters shall constitute an agreement between the two countries and
will be an integral part of 1974 Agreement.
3. AIR (1983) Calcutta, p. 468.
4. AIR (1983) Calcutta p. 492.
5. Op. cit., at. p. 313.
220 International Law and Human Rights

to address the long pending boundary issues It forms an integral part of the
Agreement of 1974. The Protocol provided for the systematic implementation
of the Agreement. The Protocol of 2011 demarcated boundary in all the un-
demarcated segments, exchange of III Indian enclaves in Bangladesh with an area
of 17160 acres and 51 Bangladeshi enclaves in India with an area of 7110 acres
and a resolution of all adversaly possessed area. The demarcation of three un-
demarcated segments pending since a long time have followed ground realities
and have fixed a boundary. Daikhata-56 (West Bengal) Muhur River-Belonia
(Tripura) and Lathitilla Dumabari (Assam) have got a fixed boundary.
Later, an Agreement was concluded on May 7, 2015 between India and
Bangladesh which provided for the transfer of III enclaves to Bangladesh (area of
17160 acres) and 51 Bangladesh enclaves to India (area of about 7110 acres).1 Thus,
the area transferred to India under the Agreement is less than that transferred by
India to Bangladesh. The agreement led India to draw a firm uncontested boundary
line with Bangladesh. The Agreement has paved the way for effective cross-border
cooperation.2
The Agreement was made to ascertain or to deliniate the exact boundary
about which a dispute existed between India and Bangladesh. If as a result of
ascertainment of the boundary some land has been transferred to Bangladesh
it does not amount to cession of the territory. There is a distinction between the
cession of the territory and the settlement of the dispute through the conclusion of
a treaty.

Jammu and Kashmir

A large number of Princely States commonly known as Indian States existed
besides British India in the Indian Peninsula before August 15, 1947. These States
varied enormously in size, status and degree of autonomy. However small they
were, they did not form part of British India. The State of Jammu and Kashmir was
one of such States. In the beginning, the East India Company—a private trading
enterprise incorporated in England, concluded treaties with the Rulers of these
States on the basis of equality. The Company did not claim any paramountacy
or authority over them. Treaties and ‘subsidiary system’3 introduced by the
Governor-General of India, Lord Wellesley imposed an obligation on the Rulers
of these States to act in subordinate cooperation with the British Government and
acknowledge its supremacy.
In 1858, the Government of India Act was passed by the British Parliament,
commonly known as the ‘Act for the Better Government of India’,4 which declared
that henceforth ‘India shall be governed by and in the name of the Queen. The Act
also made a provision regarding treaties concluded by the East India Company

1. The agreement was adopted by the Parliament on May 7, 2015 and received the assent of
the President on May 28, 2015. The Agreement was ratified on June 6, 2015.
2. See the Constitution (one hundreth Amendment) Act, 2015.
3. States accepting the subsidiary alliance shall make no war, and to carry on no negotiation,
with any other State without the Company’s consent. During the period 1813-1858, the
Company brought all the Indian States, including the State of Jammu and Kashmir, into
subordination by making them enter into subsidiary alliance with itself.
4. 21 and 22 Vict., C. 106.
 State Succession 221

with the Rulers of Indian States under Article 67 which inter alia stated that
‘All treaties made by the said company shall be binding on Her Majesty and all
contracts, covenants, liabilities and engagements of the said Company made,
incurred or entered into before the commencement of this Act may be enforced by
and against the Secretary of State-in-Council in like manner....’ The proclamation
issued by Queen Victoria announced on November 1, 1858 ‘to the Native Princes
of India’ also stipulated that : All treaties and engagements with them by or under
authority of the Honourable East India Company and by us accepted and will be
scrupulously maintained.....’ Thus, the Crown became the paramount power in
respect of Indian States including Jammu and Kashmir. The relationship between
the Crown and the Indian States was maintained by the Political Department
which was set up under the direct charge of the Governor-General.
The Indian Independence Act of 1947, which made India and Pakistan
independent Dominions made a provision under Section 7 Para 1(b) that the
suzerainty of His Majesty over the Indian States shall be lapsed from August 15,
1947. All treaties and agreements between the Crown and the Rulers of the Indian
States along with all powers, rights, authority or jurisdiction exercisable by the
Crown through treaty, grant, usage, sufferance or otherwise also came to an
end. It means the Crown shall not have any relationship with the Indian States.
Thus, Indian Independence Act released the States from all their obligations to
the Crown. The States became completely free-technically and legally. But before
the date on which the Act was to come into force, i.e., 15th August, 1947, all the
States merged either with India or Pakistan by signing an Instrument of Accession.
Hyderabad, Jammu and Kashmir and Junagarh were the only States left which did
not sign the Instrument of Accession by 15th August, 1947.
Since Ruler of Jammu and Kashmir did not accede to India or Pakistan, the
State became independent and sovereign like other sovereign States in International
Law. The State was free to exercise its internal as well as external affairs. The
Maharaja of the State was free not only to accede to either of the Dominions, but he
had also an alternative to remain independent.
Pakistan in an attempt to bring pressure for the accession to the State with it
invaded the State which started on October 22, 1947 when fully armed tribesman
and other Pakistani nationals entered the State from two directions in motor
vehicles to march towards the capital of the State—Srinagar. Although invasion
was carried out mainly by ex-soldiers and officers from Poonch area, it was led and
conducted from outside the State of Jammu and Kashmir, viz., North West Frontier
Province of Pakistan. The result was that the raiders succeeded in occupying
a considerable part of Jammu Province, more specially in the Poonch town. The
occupying part was later came to be known as Azad Kashmir.1
The Maharaja on October 24, 1947 sent a frantic appeal to the Government of
India for military help. India refused to provide assistance unless the Instrument
of Accession is signed. The Maharaja signed the Instrument of Accession on
October 26, 1947 and it was accepted by India on October 27, 1947. By the terms
of the Instrument of Accession, the Maharaja, on behalf of the State, acceded
to the Dominion of India on three subjects, viz., defence, external affairs and

1. 10 & 11 Geo. 6 CH. 30.

222 International Law and Human Rights

communications. The Instrument read with Section 6 of the Government of India

Act of 1935 would leave the residuary sovereignty of the State entirely unaffected.
Thus, the Maharaja of the State, even after the execution of the Instrument of
Accession enjoyed all the rights and powers, as a Head of the State, in all the spheres
subject to reservations contained in the Instrument of Accession. The accession
neither constituted the extinction of the authority of the Maharaja over the State
nor the extinction of the personality of the State. The accession of the State to India
may be termed partial succession in view of the fact that a part of the sovereignty
of the State came to be possessed by the Dominion of India. The State continued to
remain independent in all the spheres except those referred to in the Instrument
of Accession, i.e., defence, external affairs and communications. Thus, Jammu and
Kashmir, unlike other Princely States in India, retained limited sovereignty while
signing the Instrument of Accession with India.
Pakistan did not recognise the accession of the State to India. Pakistan
charged India of having procured the accession by ‘fraud and violence’. The Prime
Minister of Pakistan in a broadcast from Lahore on November 4, 1947 declared
that ‘The accession of Kashmir is a much greater threat to the security of Pakistan.
We do not recognise this accession.” The above argument is not only incorrect but
baseless. The fact is that the Maharaja was not forced by any one to accede the
State to the Dominion of India apart from the force of circumstances created and
abetted by Pakistan. The Instrument of Accession was signed by the Maharaja on
his own free will. Not a single Indian soldier was sent to Kashmir to fight against
the raiders before the accession. If any violence was used at all against the State
and the Maharaja, it was indeed, by Pakistan and not by India.1
When the Constitution of India came into force, accession of the State of
Jammu and Kashmir could not be extended to the Dominion of India to other
subjects except to those which were specified in the Instrument of Accession. The
Government of India made a commitment that the people of the State of Jammu
and Kashmir through their own Constituent Assembly shall determine the internal
Constitution of the State and the nature and extent of jurisdiction of the Union of
India over the State. Until the decision of the Constituent Assembly of the State is
made, the Constitution of India could provide an interim arrangement regarding
the State. Sardar Patel, the Deputy Prime Minister and the Minister for States stated,
before the Constituent Assembly that ‘in view of the special problem with which
the Jammu and Kashmir Government is faced, we have made special provision
for the continuance of the relationship of the State with the Union of India on the
existing basis.2
Gopalaswami Ayyangar on October 17, 1949 delivered a speech in the
Constituent Assembly on Article 306(A) of the Bill which corresponds with
Article 370 of the Constitution that the circumstances of Kashmir were special and
required special treatment.3 The special circumstances, to which reference was
made by him were (1) That there had been a war going on within the limit of
Jammu and Kashmir; (2) That there was a cease-fire agreed to at the beginning
of the year and that cease-fire was still on; (3) That the condition of the State was

1. S/646 and Corr. 1 of January 15, 1948.

2. See Constituent Assembly Debates, Vol. X, pp. 161-166.
3. Ibid pp. 424-427.
 State Succession 223

still unusual and abnormal and had not settled down; (4) That part of the State
was still in the hands of rebels and enemies; (5) That our country was entangled
in the United Nations in regard to Jammu and Kashmir and it was not possible to
say when we would be free from that entanglement; (6) That the Government
of India had committed themselves to the people of Kashmir in certain respects,
including an undertaking that an opportunity would be given to the people of the
State to decide for themselves whether they would remain with the Republic or
wish to go out of it; and (7) That the will of the people expressed through the
Instrument of a Constituent Assembly would determine the Constitution of the
State as well as the sphere of Union jurisdiction over the State.
Gopalaswamy Ayyangar at that time expressed the hope that in due course
Jammu and Kashmir will become ripe for the same sort of integration as has been
taken in the case of other States. However, the territories of the State of Jammu and
Kashmir were specified in Part B of the First Schedule of the Indian Constitution
whereby the State became a unit of the Indian Union. The special status of the State
led the framers of the Constitution to incorporate provisions for the State of Jammu
and Kashmir under Article 370 of the Constitution of India which came into force
from January 26, 1950. Later, the Constitution of India was made applicable in
part only to the State of Jammu and Kashmir in accordance with the order of the
President of India passed on May 15, 1954.1 The above Article shall continue to
operate unless it is recommended by the Constituent Assembly of the State that the
Article should cease to continue, and upon such recommendation the President
makes ‘public notification’ to that effect as laid down under Para 3 of the Article
370 of the Constitution.
The Constituent Assembly of the State of Kashmir was convened on
November 5, 1951 to frame the Constitution for the State. The Assembly was free
to decide the future of the State. It could decide whether a State would remain a
sovereign and independent State or would become a part of the Indian Union. It was
also conferred with the power to recommend to the President for the abrogation
or amendment in Article 370 of the Constitution. The Assembly completed the
task of Constitution making in the 12th session held from September 29, 1956 to
November 19, 1956. After detailed discussions the Constitution was approved and
adopted on November 17, 1956. Section 1 to 8 and 158 which dealt with the State
territory, permanent residents, relationship of the State with the Union of India
came into force at once. The remaining Sections came into force on January 26,
1957. The Constitution laid down under Section 3 that ‘The State of Jammu and
Kashmir is and shall be an integral part of the Union of India’. This suggests that
the State became a part and parcel of the Indian Union. It lost its international
personality in spite of the fact that the executive and legislative powers of the State
extended to all matters except those with respect to which Parliament had power

1. Chapter III dealing with fundamental rights was made applicable with some
modifications and additions. Article 35-A was added with special application to the State.
Similarly, Article 7 in Chapter was made applicable with further added provision which
had application in the State. Similarly, Articles 10 and 11 of the Constitution of India
have been extended to the State of Jammu and Kashmir along with all the provisions of
the Citizenship Act of 1955. [Justice G.D. Sharma, ‘The Jammu and Kashmir Permanent
Residents (Disqualification) Bill, 2004 is unconstitutional, AIR 2004, Journal, p. 161.
224 International Law and Human Rights

to make laws for the State under the provisions of the Constitution of India.1 It
was dissolved on 25th January, 1957. However, before the dissolution it did not
recommend to the President for the abrogation or amendment in Article 370
and on this basis the Divisional Bench of the Jammu and Kashmir High Court
comprising Justice Hussain Masoodi and Justice Raj Kotwal stated that since the
Constituent Assembly before its dissolution did not recommend anything in this
regard and therefore Article 370 notwithstanding the title of temporary provisions
in Constitution is a permanent provision of the Constitution and it cannot be
abrogated, repealed or amended as the mechanism provided under Clause 3 of
Article 370 is no more available. Supreme Court in 2017 held similarity in State Bank
of India v. Santosh Gupta that since the Constituent Assembly of the State ceased to
exist, the President would not be able to fulfil the mandatory provision of getting
its recommendation for its abrogation. The Court in 2018 reiterated that Article 370
of the Constitution, conferring special status on Jammu and Kashmir, and limiting
the Central Government’s power to make laws for the State, had acquired status
through years of existence, making its abrogation impossible.2
To overcome this legal challenge, the Government of India abrogated Article
370 with a Presidential order. The President of India on August 5, 2019 issued an
Order under Article 370(1) which provided that :
All provisions of this Constitution as amended from time to time, without
any modifications or exceptions, shall apply to the Jammu and Kashmir
notwithstanding anything contrary contained in Article 152 or Article 308
or any other Article of this Constitution or any other provisions of this
Constitution of Jammu and Kashmir or any law, document, judgment,
ordinance, order, by-law, rule, regulation, notification, custom and usage
having the force of law in the territory of India, or any other instrument,
treaty or agreement as envisaged under Article 363 or otherwise.
The President issued the Order with the concurrence of Jammu and Kashmir
Government which apparently means Governor who substituted the Jammu
and Kashmir Constituent Assembly since there was no Jammu and Kashmir
Government. The above order implies that all the provisions of the Indian
Constitution shall apply to the State of Jammu and Kashmir and the separate
Constitution of the State stood abrogated. The above order also suggests that the
State of Jammu and Kashmir became a part of India as other parts of India.3
———————

1. For detail see H.O. Agarwal, ‘Kashmir Problem : Its Legal Aspects’.
2. The observation came from a bench of Justices Adarsh Goel and R.F. Nariman on a
petition filed by Kumari Vijayalakshmi Jha that Article 370 was a temporary provision
which lapsed with the dissolution of the Jammu and Kashmir Constituent Assembly on
january 26, 1957. Times of India, April 5, 2018.
3. Jammu and Kashmir Reorganisation Act, 2019, an Act of the Indian Parliament, was
passed which provided for the bifurcation of the State of Jammu and Kashmir into two
Union Territories, viz., Jammu and Kashmir and Ladakh. While Jammu and Kashmir
shall have a legislature, the Union Territory of Ladakh will have no legislation (The Act
was passed by the Rajya Sabha on August 5, 2019, and by Lok Sabha on August 9, 2019. It
received the assent of the President on August 9, 2019).