State succession

INTRODUCTION

States are the principal subjects of international law and they posses international personality of the fullest kind.(46). And just like a natural person, a state is also not immutable, it is subjected to several changes. New states appear and old states disappear. Federations, mergers, dissolution and successions take place. These changes called state succession. Such changes have come to the fore since the end of the Second World War and led to the establishment of over 100 new, independent countries.

In this context succession refers to the transfer of rights, obligations, and/or property from a previously established state (the predecessor state) to the new one (the successor state). Transfer of rights, obligations, and property can include overseas assets (embassies, monetary reserves, artifacts), participation in treaties, membership in international organizations, and debts.

State succession happens when a state replaces another state(49) in the responsibility for the international relations of the territory to which the succession of States relates.(52)  The Vienna I and II state that succession is "the replacement of one State by another in the responsibility for the international relations of a territory."(51) This then excludes mere changes of government like those revolutionary transformations of a State brought about by the introduction of socialism or by its abolition. 

2. CIRCUMSTANCES THAT MIRRORS STATE SUCCESSION

2.1 DISSOLUTION

In dissolution, a State ceases to exist and it is replaced by two or more successor States which take responsibility for the international relations of the territory of the predecessor State. Dissolution involves changes in the sovereignty of one State over territory and population. Dissolution occurs when a former supreme authority is entirely replaced by two or more new political entities displaying effective and independent control within parts of the territory of the predecessor State[1].

2.2 UNIFICATION (MERGER AND ABSORPTION)

Unification of States’ refer to the situation of the uniting of States aiming at the creation of a new State, which predecessor States both ceased to exist(merger) , as well as the situation of incorporation of a State into another existing State(absorption).[2]

3. KINDS OF STATE SUCCESSION

State succession are of two types. One of it is universal succession which takes place when a legal identity of a community is completely destroyed. This happens when a state is completely absorbed  by another, either through subjugation or through voluntary merger. For instance when the territory of a state is forcibly annexed by other state or when a state voluntary merges into one or several states and also when one state is divided into several states and several states are formed.

The second type is partial Succession. It takes place as  a result of civil war or war of liberation, a part of state breaks off and takes up an independent position. For instance when a part of the state revolts and after achieving freedom becomes a separate international person or when a part of state is ceded to another state and also when a state accepts the suzerainty or becomes a protectorate of another state.

5. SUCCESSION OF STATES TO TREATIES

Treaties are founded upon the pre-existing and indispensable norm of pacta sunt servanda or the acceptance of treaty commitments as binding. The rules concerning succession to treaties are those of customary international law together with the Vienna Convention on Succession of States in Respect of Treaties, 1978, which came into force in 1996 and which applies with regard to a succession taking place after that date.''[3]

5.1 CATEGORIES OF TREATIES IN STATE SUCCESSION

Treaties in respect of succession of states may fall within the following categories: multilateral treaties, including the specific category of treaties concerning international human rights; treaties concerned with territorial definition and regimes; bilateral treaties; and treaties that are treated as 'political' in the circumstances.[4]

5.1.1 STATE SUCCESSION IN TERRITORIAL TREATIES

Territorial grounded treaties, under which rights or obligations are imposed directly upon identifiable territorial units.  The Tribunal in the Eritrea/Yemen case emphasized that boundary and territorial treaties made between two par- ties constituted a special category of treaties representing a 'legal reality which necessarily impinges upon third states, because they have effect ergu ornne.'[5]

Article 12 of the Vienna Convention provides that a succession of states does not as such affect obligations or rights relating to the use of any territory or to restrictions upon its use established by a treaty for the benefit of any foreign state, group of states or all states and considered as attaching to the territory in question. The International Court declared that article 12 reflected a rule of customary law in addressing the issue of territorial regimes in the Gabtikovo-Nagyinaros Project case and confirmed that treaties concerning water rights or navigation on rivers constituted territorial treaties.[6]

5.1.1.1  BOUNDARIES TREATIES OF NEW INDEPENDENT STATES

Waldock, on a Report on Succession of States and Governments in Respect of Treaties in 1968, stated that 'the weight both of opinion and practice seems clearly to be in favor of the view that boundaries established by treaties remain untouched by the mere fact of a succession.[7] For reasons relating to the maintenance of international stability, this approach has been clearly supported by state practice which in Latin America came to form the concept of uti possidetis juris.[8]

The extension of the principle of uti possidetis from decolonization to the creation of new states out of existing independent states is supported by international practice, taking effect as the transformation of administrative boundaries into international boundaries generally.

In the Libya/Chad case, it was declared that 'once agreed, the boundary stands, for any other approach would vitiate the fundamental principle of the stability of boundaries. The court also stated 'a boundary established by treaty thus achieves a permanence which the treaty itself does not necessarily enjoy. The treaty can cease to be in force without in any way affecting the continuance of the boundary.. .when a 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.'[9]

5.1.2 SUCCESSION OF STATES IN POLITICAL TREATIES

Political treaties establish rights or obligations which are  particularly linked to the regime in power in the territory in question. and to its political orientation. Examples of such treaties would include treaties of alliance or friendship or neutrality.[10] Such treaties do not bind successor states for they are seen as exceptionally closely tied to the nature of the state which has ceased to exist.

6. SUCCESSION OF STATES IN MEMBERSHIP OF INTERNATIONAL ORGANIZATION

In most international organizations acquiring membership for others than original members it is done following a formal process of admission. It can be a dual process or a bilateral act, which requires a formal application or a statement of acceptance from the state concerned, as well as a decision of admittance from the competent organ of the organization.  An eloquent example of the requirement of following a formal process for membership we can find stated in UN Charter[11]  

In general, however, many of the instruments of incorporation of international organizations (eg, FAO, ITU, UNESCO, ILO) provide a bilateral procedure for admission of new members, that requires an approval, an invitation, a formal request and an acceptance or accession obtained from a qualified majority of the member states in the organization.  On the other hand, there are international organizations such as the World Bank Group (IBRD, IFC, IDA) providing certain rules of exception.

In case of succession to international organisations, we are talking about a successor state which, in order to gain membership in the organization to which the predecessor state was a member, must express its desire to become part in the organization's founding treaty and then follow the procedures for admission of any new member. Therefore, we can assert that in case of succession to international organizations, the general rule is that the successor state is not the continuator of predecessor state in terms of membership in the international organization, and must satisfy by its own account the necessary conditions to become in turn member in that organization. However, over time, there have been cases in which the general rule has not been applied. Such are the cases of Russia and Yugoslavia.

State  The nature of State succession must be considered when a State claims to be identical with a former State. The definition of the Vienna Conventions correctly reflects the general conviction that a State identical with another one cannot be its successor.(53)

The issue of state succession can arise in a number of defined circumstances, which mirror the ways in which political sovereignty may be acquired by, for example, decolonization of all or part of an existing territorial unit, dismemberment of an existing state, secession, annexation and merger. In each of these cases a once-recognized entity disappears in whole or in part to be succeeded by some other authority, thus precipitating problems of transmission of rights and obligations. However, the question of state succession does not infringe upon the normal rights and duties if states under international law. These exist by virtue of the fundamental principles of international law and as a consequence of sovereignty and not as a result of transference from the previous sovereign. The issue of state succession should also be distinguished from questions of succession of governments, particularly revolutionary succession, and consequential patterns of recognition and responsibility.(54)

Obviously the problem is different in the case of total acquisition from what it is the case of partial acquisition. In the former case there is no surviving person to whom antecedent rights and obligations may still be attributed, whereas in the latter case there is. The problem in the one case is to ascertain what rights and obligations pass to the Successor State and what lapse for want of a juridical entity in which they can be invested. The problem in the other case is to distinguish those rights and obligations, which are automatically transferred to the successor state from those, which remain with the Predecessor State.

Who decides whether State succession has taken place? The international community can influence this determination. Third State decisions are not, however, determinative, creating a problem similar to that of recognition of States: As third States cannot recognize an entity as a sovereign State that does not want to be one, likewise third States cannot impose their view in cases of State succession. Thus the claim of Estonia, Latvia and Lithuania not to be successor States to the Soviet Union has been generally accepted in State practice. Although third States cannot force sovereignty upon an unwilling entity, third States can withhold recognition, and thus undermine a State's claim to succession. For example, the international community disregarded Yugoslavia's (Serbia and Montenegro) claim to be identical with the SFRY since recognition would not have been compatible with the recognition of Slovenia, Croatia, Bosnia and Herzegovina, and Macedonia as sovereign States with internationally recognized frontiers. It is precisely these frontiers that were questioned by the Federal Republic of Yugoslavia through its claim to be identical to the former SFRY.(55)

Although state succession (41) forms part of the established corpus of classical international law, it is an area of especial confusion and inconsistency. As the German Federal Supreme Court noted in the Espionage Prosecution Case, (42) the problem of State Succession is one of the most disputed areas of international law. (43) Why this should be so is a fascinating question. Different international crises resulting from termination of particular states or empires have not always been treated in a consistent fashion for a host of political reasons and this has inevitably led to difficulties in formulating the relevant legal rules which predictability. Accordingly, one needs to sift through such diffuse and dissonant international practice, bearing in mind that specific bilateral solutions to particular problems may not necessarily be instantly generalisable. The pattern of international reaction to such specific episodes needs to be carefully weighed since recognition in a situation of inconsistent and uncertain practice assumes perforce a greater importance than might perhaps otherwise be the case. As the Arbitration Commission established by the Conference on Yugoslavia starkly emphasized, there are few well-established principles of international law that apply to State succession. Application of these principles is largely to be determined case by case though the 1978 and 1983 Vienna Convention do offer some guidance.(44)

States and the concept of statehood (45) lie at the heart of international law. As Oppenheim notes, States are the principal subjects of international law and thereby possess international personality of the fullest kind.(46) It is quit apparent that one cannot tackle the question of State succession, i.e the issue of transmission of rights and obligations from one State to another without at first confronting the problem of statehood. Succession is predicated upon the existence of two (or more) States has been resolved in a way that the issue of identity or continuity of States has been resolved in a way that presents the international community with at least two states.(47) Of course, in the vast majority of cases no problem will occur at this point, but in some situations this will not be so. In addition, it is important conceptually to distinguish issues focusing upon statehood from those concerned with succession in order to be able to appreciate the crucial distinction between the legal consequences flowing from a determination as between continuity and succession.

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[1] According to MPPIL the discontinuity between the legal orders of the predecessor and the derived States is a main factor which testifies that the former State is extinct.  According to Crawford, a State is the same if its social reality has not been destroyed, i.e. if the constitutive elements of Statehood are substantially retained, notwithstanding any changes.

[2] In practice, a distinction can be drawn between unification of States and incorporation of one State into another: whereas the predecessor State ceases to exist in the former case, in the latter case only the incorporated State ceases to exist and the enlarged (successor) State continues its prior legal personality. State Succession in Matters of State Responsibility, Provisional Report (prepared by Marcelo G. Kohen), Institute de Droit International, 14th Commission, para 35.

[3] Yearbook of the International Law Commission, 1974, vol. 11, part 1, pp. 157, International Law Association, The Effect of Independence oil Treaties, London, 1965, and A. Aust, Modern Treaty Law and Practice, Cambridge, 2000, chapter 22

[4] Malcom Internationla Law

[5] 114 ILR p.1, 48

[6]  ICJ Reports, 1997, pp. 7, 72; 116 ILR, p. 1

[7] Yearbook of the Irrterrratior~al Law Conrmission, 1968, uol. 11, pp. 92-3.

[8] O'Connell, State Succession, ~ol. 11, pp. 273

[9] ICJ Reports, 1994, pp. 6, 37; 100 ILR, pp. 1, 36

[10] O'Connell, State Succession, Vol. 02, pp. 2, 80 and 136, and Oppenheim's International Law,

[11] Article 4 of the UN Charter according to which: „1. Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations. 2. The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.”