The term State Succession under International law signifies the transmission of the rights and obligations of one state to another in consequence of territorial sovereignty’ Discuss
1.0 Introduction
State Succession refers to a theory and practice in international relations regarding the recognition and acceptance of a newly created sovereign state by other states, based on a perceived historical relationship the new state has with a prior state. The theory has its root in 19th century diplomacy.
Basically succession may refer to the transmission of rights, obligations, and property from a previously well-established prior state (the predecessor state) to the new one (the successor state). Transfer of rights, obligations, and property can include overseas assets (embassies, monetary reserves, and museum artefacts), participation in treaties, membership in international organizations, and debts. Often a state chooses piecemeal whether or not it wants to be considered the successor state. A special case arises, however, when the predecessor state was signatory to a human rights treaty, since it would be desirable to hold the successor state accountable to the terms of that treaty, regardless of the successor state’s desires.
In an attempt to codify the rules of succession of states the Vienna Convention on Succession of States in respect of Treaties was drafted in 1978. It entered into force on November 6, 1996.
Succession happens when one state stops to exist or loses control over part of its territory, and another state comes into existence or assumes control over the territory lost by the first state. A central concern in this instance is whether the international obligations of the former state are taken over by the succeeding state. Changes in the form of government of one state, such as the replacement of a monarchy by a democratic form of government, do not modify or terminate the obligations incurred by the previous government.
When the state ceases to exist, however, the treaties it concluded generally are terminated and those of the successor state apply to the territory. These include political treaties like alliances, which depend on the existence of the state that concluded them. But certain obligations, such as agreements concerning boundaries or other matters of local significance, carry over to the successor state. More difficult to determine is the continuing legality of treaties granting concessions or contract rights. Scholarly opinion has diverged on this aspect of succession, and state practice has likewise divided. Consequently each case must be studied on its merits to determine whether the rights and duties under the contract or concession are such that the successor state is bound by the obligations of the previous state.
2.0 State Succession Under International Law which Signifies Transfer of Rights & Obligations from One State to Another
Political entities are not immutable. They are subject to change. New states appear and old states disappear. Federations, mergers, dissolutions and secessions take place. International law has to incorporate such events into its general framework with the minimum of disruption and instability. Such changes have come to the fore since the end of the Second World War and the establishment of over 100 new, independent countries. Difficulties may result from the change in the political sovereignty over a particular territorial entity for the purposes of international law and the world community. For instance, how far is a new state bound by the treaties and contracts entered into by the previous sovereign of the territory? Does nationality automatically devolve upon the inhabitants to replace that of the predecessor? What happens to the public property of the previous sovereign and to what extent is the new authority liable for the debts of the old? State succession in international law cannot be confused with succession in municipal law and the transmission of property and so forth to the relevant heir. Other interests and concerns are involved and the principles of state sovereignty, equality of states and non-interference prevent a universal succession principle similar to domestic law from being adopted. Despite attempts to assimilate Roman law views regarding the continuity of the legal personality in the estate which falls by inheritance, this approach could not be sustained in the light of state interests and practice. The opposing doctrine, which basically denied any transmission of rights, obligations and property interests between the predecessor and successor sovereigns, arose in the heyday of positivism in the nineteenth century. It manifested itself again with the rise of the decolonisation process in the form of the ‘clean slate’ principle, under which new states acquired sovereignty free from encumbrances created by the predecessor sovereign. The issue of state succession can arise in a number of defined circum-stances, which mirror the ways in which political sovereignty may be acquired by, for example, decolonisation of all or part of an existing territorial unit, dismemberment of an existing state, secession, and annexation and merger. In each of these cases a once-recognised 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 of 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. In many cases, such problems will be dealt with by treaties, whether multilateral treaties dealing with primarily territorial dispositions as, for example, the Treaty of St Germain, 1919, which resolved some succession questions relating to the dissolution of the Austro-Hungarian Empire, or bilateral agreements as between, for instance, colonial power and new state, which, however, would not bind third states. The system of devolution agreements signed by the colonial power with the successor, newly decolonised state, was used by, for example, the UK, France and the Netherlands. Such agreements provided in general that all the rights and benefits, obligations and responsibilities devolving upon the colonial power in respect of the territory in question arising from valid international instruments, would therefore devolve upon the new state.[2] This system, however, was not seen as satisfactory by many new states and several of them 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 law would be regarded as having terminated at the end of the period. However, the issue of state succession in international law is particularly complex. Many of the rules have developed in specific response to particular political changes and such changes have not always been treated in a consistent manner by the international community. The Arbitration Commission established by the Conference on Yugoslavia, for instance, emphasised that ‘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 Conventions do offer some guidance’, while the German Federal Supreme Court noted in the Espionage Prosecution case that ‘the problem of state succession is one of the most disputed areas of international law’. The international aspects of succession are governed through the rules of customary international law. There are two relevant Conventions, the Vienna Convention on Succession of States in Respect of Treaties, 1978, which entered into force in 1996, and the Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, 1983, which is not yet in force. However, many of the provisions contained in these Conventions reflect existing international law. State succession itself may be briefly defined as the replacement of one state by another in the responsibility for the international relations of territory. However, this formulation conceals a host of problems since there is a complex range of situations that stretches from continuity of statehood through succession to non-succession. State succession is essentially an umbrella term for a phenomenon occurring upon a factual change in sovereign authority over a particular territory. In many circumstances it is unclear as to which rights and duties will flow from one authority to the other and upon which precise basis. Much will depend upon the circumstances of the particular case, for example whether what has occurred is a merger of two states to form a new state; the absorption of one state into another, continuing state; a cession of territory from one state to another; secession of part of a state to form a new state; the dissolution or dismemberment of a state to form two or more states, or the establishment of a new state as a result of decolonisation. The role of recognition and acquiescence in this process is especially important. The relevant date of succession is the date at which the successor state
Replaces the predecessor state in the responsibility for the international relations of the territory to which the succession relates. This is invariably the date of independence. However, problems may arise where successive dates of independence arise with regard to a state that is slowly disintegrating, such as Yugoslavia. The Yugoslav Arbitration Commission noted that the date of succession was a question of fact to be assessed in the light of all the relevant circumstances.[3]
3.0 Conclusion
So, we can conclude from above research work that the rights and obligations can be transmitted from one state to another in consequence of territorial sovereignty due to state succession under international law.
Bibliography
1. Succession of States – Wikipedia, the free encyclopedia. (2010, November). Retrieved March 2, 2013, from http://en.wikipedia.org/wiki/Succession_of_states
2. Definition of Sucession of States. (n.d.). Retrieved from The Free Dictionary by Farlex: http://legal-dictionary.thefreedictionary.com/Succession+of+States
3. D. P. O’Connell, State Succession in Municipal Law and International Law, Cambridge, 2 vols., 1967; O’Connell, ‘Recent Problems of State Succession in Relation to New States’, 130 HR, 1970, p. 95; K. Zemanek, ‘State Succession after Decolonisation’, 116 HR, ] 1965, p. 180; O. Udokang, Succession of New States to International Treaties, New York, 1972; J. H. W. Verzijl, International Law in Historical Perspective, Leiden, 1974, vol. VII; I. Brownlie, Principles of Public International Law, 6th ed, Oxford, 2003, chapter 29; UN, Materials on Succession of States, New York, 1967 and supplement A/CN.4/263, 1972, and UN, Materials on Succession of States in Matters Other than Treaties, NewYork, 1978; International Law Association, The Effect of Independence on Treaties, London, 1965; Z. M´ eriboute, La Codification de la Succession d’´ Etats aux Trait´es, Paris, 1984; S. Torres Bernardez, ‘Succession of States’ inInternational Law: Achievements and Prospects(ed. M. Bedjaoui), Paris, 1991, p. 381; D. Bardonnet, La Succession d’´ Etats `a Madagascar, Paris, 1970; R. M¨ ullerson, ‘The Continuity and Succession of States by Reference to the Former USSR and Yugoslavia’, 42 ICLQ, 1993, p. 473; M. Koskenniemi and M. Lehto, ‘La Succession d’´ Etats dans l’ex-URSS’, AFDI, 1992, p. 179; M. Bedjaoui, ‘Problems R´ ecents de Succession’´Etats dans les´ Etats Nouveaux’, 130 HR, 1970, p. 455;Oppenheim’s International Law(eds. R. Y. Jennings and A. D. Watts), 9th ed, London, 1992, p. 208; J. Crawford, The Creation of States in International Law, 2nd ed, Oxford, 2006; P. Radan, The Break-up of Yugoslavia and International Law, London, 2002; Nguyen Quoc Dinh, P. Daillier and A. Pellet, Droit International Public, 7th ed, Paris, 2002, p. 538; M. N. Shaw, ‘State Succession Revisited’, 5 Finnish YIL, 1994, p. 34;Succession of States(ed. M. Mrak), The Hague, 1999; B. Stern, ‘La Successiond’´ Etats’, 262 HR, 1996, p. 9;State Succession: Codification Tested against Facts (eds. P. M. Eisemann and M. Koskenniemi), Dordrecht, 2000, and State Practice Regarding State Succession and Issues of Recognition(eds. J. Klabberset al.), The Hague, 1999.
4. O’Connell,State Succession, vol. I, pp. 9 ff.
5. O’Connell,State Succession, vol. II, pp. 178–82. This treaty provided for the responsibility of the successor states of the Austro-Hungarian Empire for the latter’s public debts. See also the Italian Peace Treaty, 1947.
6. E.g. the UK–Burma Agreement of 1947. See also N. Mugerwa, ‘Subjects of International Law’ in Manual of Public International Law(ed. M. Sørensen), London, 1968, pp. 247, 300– 1, and Yearbook of the ILC, 1974, vol. II, p. 186. See also O’Connell,State Succession,vol.II, pp.352–73, and Brownlie,Principles, p. 633.
7. E.g. the Tanganyika statement of December 1961, quoted in Mugerwa, ‘Subjects’, p. 302, subsequently followed by similar declarations by, for example, Uganda, Kenya and Burundi. See alsoYearbook of the ILC, 1974, vol. II, p. 192. In Zambia’s case, it was stated that the question would be governed by customary international law: see O’Connell,State Succession, vol. II, p. 115.
8. Opinion No. 13, 96 ILR, pp. 726, 728. See also Oppenheim’s International Law, p. 236, and Third US Restatement of Foreign Relations Law, Washington, 1987, p. 100.
9. Case No. 2 BGz 38/91, 94 ILR, pp. 68, 77–8.
10. Article 2 of the Vienna Conventions of both 1978 and 1983 and Opinion No. 1 of the Yugoslav Arbitration Commission, 92 ILR, pp. 162, 165. See also Guinea-Bissauv.Senegal, 83 ILR, pp. 1, 22 and the El Salvador/Hondurascase, ICJ Reports, 1992, pp. 351, 598; 97 ILR, pp. 266, 514.
[1] Visit Succession of States – Wikipedia, the free encyclopedia. (2010, November). Retrieved March 2, 2013, from http://en.wikipedia.org/wiki/Succession_of_states
[2] See e.g. the UK–Burma Agreement of 1947. See also N. Mugerwa, ‘Subjects of International Law’ in Manual of Public International Law(ed. M. Sørensen), London, 1968, pp. 247, 300– 1, and Yearbook of the ILC, 1974, vol. II, p. 186. See also O’Connell,State Succession,vol.II, pp.352–73, and Brownlie,Principles, p. 633.
[3] See Opinion No. 11, 96 ILR, p. 719. However, see also the Yugoslav Agreement on Succession Issues of June 2001, 41 ILM, 2002, p. 3. See further below, p. 989.