Chapter 7 (State Succession) Notes of Public International Law

Chapter 7

State Succession

a. Concept of State Succession and Its Foundation

1. Introduction

State succession refers to the legal process through which a state assumes the rights, obligations, and international responsibilities of another state following a territorial or political transformation. This transformation can occur due to the dissolution, secession, annexation, or merger of states. The concept is fundamental in international law, ensuring stability in global relations when sovereignty over a territory changes.

2. Definition and Meaning

State succession is defined as the replacement of one state by another in the responsibility for the international relations of a given territory. The International Court of Justice (ICJ) in the Gabcíkovo-Nagymaros Project Case reaffirmed this principle, stating that it occurs when “the sovereignty over a territory changes hands from one state to another.”

Notable Definitions:

Ian Brownlie: State succession is the replacement of one state by another in respect of sovereignty over the territory.
L. Oppenheim: A succession of international persons (states) occurs when one or more international persons (states) take the place of another due to certain changes.
Vienna Convention on Succession of States in Respect of Treaties, 1978 (Article 2): The replacement of one state by another in the responsibility for the international relations of a territory.

3. Foundations of State Succession

The concept of state succession is built on legal, historical, and political foundations, ensuring the continuity of legal relationships when a state undergoes a transformation.

A. Historical Development

Grotius' Doctrine: Early international law scholars, including Hugo Grotius, applied the principle of inheritance to states, arguing that just as heirs inherit property, new states inherit the rights and obligations of their predecessors.
Post-Colonial Era: The concept evolved significantly during the 20th century, particularly with decolonization. Newly independent states often rejected the obligations of their colonial predecessors (Clean Slate Doctrine).
Cold War and Post-Cold War Period: The dissolution of the USSR and Yugoslavia provided modern case studies for state succession, leading to various legal interpretations.

B. Legal Foundations

Pacta Sunt Servanda (Treaty Continuity): This principle asserts that treaties must be honored in good faith. It applies to cases where successor states inherit obligations from their predecessors.
Uti Possidetis Juris: This principle maintains that newly independent states retain the pre-existing boundaries of their predecessor states.
Self-Determination: The right of peoples to determine their political status influences state succession, especially in cases of decolonization and secession.

4. Types of State Succession

A. Universal Succession (Total Succession)

Occurs when a predecessor state ceases to exist, and a successor state assumes all its rights and obligations.

Example: The dissolution of Czechoslovakia (1993) into the Czech Republic and Slovakia.

B. Partial Succession

Occurs when only a portion of a state undergoes succession while the predecessor state continues to exist.

Example: The secession of South Sudan from Sudan (2011).

C. Types Based on Political Changes

Dismemberment: A state ceases to exist, and multiple new states emerge.

Example: USSR's dissolution into multiple independent states (1991).

Secession: A part of a state separates to form a new state.

Example: Bangladesh from Pakistan (1971).

Merger: Two or more states unite to form a single entity.

Example: Unification of Germany (1990).

Cession: A state transfers territory to another state.

Example: Louisiana Purchase (1803) from France to the USA.

Annexation: One state absorbs another.

Example: Crimea's annexation by Russia (2014).

5. Key Legal Issues in State Succession

A. Succession to Treaties

· Vienna Convention on Succession of States in Respect of Treaties, 1978:

Newly independent states are not bound by predecessor treaties unless they opt in.
Continuing states (e.g., Russia after the USSR) inherit previous treaty obligations.

· Case Examples:

India-Pakistan (1947): India retained its international obligations, while Pakistan had to reapply for UN membership.
Breakup of Yugoslavia: Successor states renegotiated treaties, leading to selective continuity.

B. Succession to Debts

Vienna Convention on Succession of States in Respect of State Property, Archives, and Debts (1983)

States can inherit debts, but newly independent states are not automatically liable.
Example: Russia assumed the USSR’s international debt obligations, but other successor states negotiated their share.

C. Succession to Property and Archives

Assets such as embassies, government buildings, and military resources must be divided among successor states.

Example: The Czech Republic and Slovakia negotiated the division of Czechoslovakian assets.

Archives often transfer to successor states for continuity.

Example: UK’s transfer of colonial records to newly independent states.

D. Nationality and Citizenship Issues

Citizens of newly formed states must acquire new nationalities, sometimes facing statelessness.

Example: The breakup of Yugoslavia led to dual citizenship and nationality disputes.

E. Succession in International Organizations

Membership in organizations such as the UN is determined based on continuity vs. clean slate principles.

Example: Russia took over the USSR’s seat at the UN, while Ukraine and Belarus had to reapply.

6. Principles Governing State Succession

A. Doctrine of Continuity

Successor states inherit treaties, debts, and obligations of the predecessor state.
Example: British India’s treaties carried over to post-independence India.

B. Clean Slate Doctrine

Newly independent states start fresh, without obligations from the predecessor state.
Example: US rejection of British treaties after 1776.

7. Contemporary Challenges and Controversies

Recognition Issues: Some successions, such as Kosovo’s independence, are not universally recognized.
Territorial Disputes: Crimea’s annexation remains contentious in international law.
Human Rights Concerns: Statelessness issues arise, especially in cases of forced secession.

8. Conclusion

State succession is a dynamic and complex legal process that addresses sovereignty changes in international law. While the Vienna Conventions provide guidelines, state practice varies significantly based on historical, political, and diplomatic factors. The principles of Pacta Sunt Servanda, Uti Possidetis, and Self-Determination remain key foundations in resolving succession disputes and maintaining international stability.

b. Merger, Succession, Dissolution of State and New State

1. Introduction

States are not permanent entities in international law. Over time, they undergo territorial and political transformations, leading to merger, secession, dissolution, or the formation of a new state. These transformations impact sovereignty, treaty obligations, international recognition, and nationality.

2. Definition of State Succession

State succession is the transfer of sovereignty and international obligations from one state to another. It occurs when a state undergoes territorial or political change, leading to the replacement of its international identity.

Legal Definitions:

Prof. Ian Brownlie: “State succession is the replacement of one state by another in respect of sovereignty over a territory.”
Prof. Oppenheim: “A succession of international persons occurs when one or more states take the place of another state due to changes in territorial sovereignty.”
Vienna Convention on Succession of States in Respect of Treaties (1978) (Article 2):
“The replacement of one state by another in the responsibility for the international relations of a territory.”

3. Historical Background of State Succession

The concept of state succession has evolved through historical events and legal codifications:

1. Early Doctrines:

Grotius (17th century): Applied inheritance principles to states, arguing that successor states inherit rights and obligations.
Pufendorf & Vattel: Emphasized that international law should govern succession disputes.

2. Post-Westphalian System (1648):

Recognized sovereign equality of states and emphasized territorial integrity.

3. Decolonization Era (20th Century):

Newly independent states rejected colonial treaties, leading to the adoption of the Clean Slate Doctrine.
Example: Many African states refused to inherit colonial debts after independence.

4. Post-Cold War Period (1990s):

The dissolution of the USSR, Yugoslavia, and Czechoslovakia led to new legal interpretations.

4. Types of State Succession

State succession can occur through various means:

A. Universal Succession (Total Succession)

Occurs when a predecessor state completely ceases to exist, and its successor assumes all rights and obligations.
This usually happens in cases of unification or complete state absorption.
Example:

German Reunification (1990): The Federal Republic of Germany (West Germany) absorbed East Germany.

B. Partial Succession

Occurs when a portion of a state undergoes succession while the parent state continues to exist.
The successor state inherits some but not all obligations of the predecessor state.
Example:

South Sudan (2011): Seceded from Sudan, but Sudan continued as a state.

5. Processes of State Transformation

A. Dismemberment of a State

A state completely ceases to exist, and multiple successor states emerge.
This often results in multiple new states, each independent of the others.
Legal Issues:

Who inherits the international treaties and debts?
What happens to citizenship laws?

Examples of Dismemberment:

USSR (1991):

Broke into 15 independent states.
Russia claimed continuity, inheriting the USSR’s UN seat and nuclear arsenal.

Yugoslavia (1991-1992):

Split into Serbia, Croatia, Bosnia, Slovenia, etc.
Each state had to renegotiate international obligations.

B. Merger of States

Occurs when two or more states unite to form a new state. The merging states lose their individual sovereignty.

Types of Merger

1. Complete Merger (Total Union):

Two states merge to form an entirely new state.
Example: Tanganyika and Zanzibar (1964) merged to form Tanzania.

2. Absorption Merger:

One state absorbs another while maintaining its own identity.
Example: West Germany absorbing East Germany (1990).

Legal Implications of Merger

The new state inherits all obligations from the merging states.
If one state absorbs another, it may retain continuity while the absorbed state ceases to exist.

Examples of Mergers:

German Reunification (1990): East Germany merged with West Germany, retaining West Germany’s international status.
North and South Yemen (1990): Merged into the Republic of Yemen.
United Arab Republic (1958-1961): A failed merger between Egypt and Syria.

C. Secession of a State

Secession occurs when a region separates from a parent state to form an independent state.

Types of Secession:

Unilateral Secession: A region declares independence without the parent state's consent.

Example: Kosovo (2008) (Serbia disputes this).

Negotiated Secession: A region gains independence through an agreement.

Example: South Sudan (2011) (Referendum-based).

Legal Issues in Secession:

Territorial Disputes: Secession often results in conflicts over borders.
Recognition Problems: Some states refuse to recognize new states.

Examples of Secession:

Pakistan from India (1947): Pakistan became independent, while India retained legal continuity.
Bangladesh from Pakistan (1971): Seceded after a war.
South Sudan from Sudan (2011): Became independent via referendum.

D. Dissolution of a State

Dissolution happens when a state disappears and its territory is divided into new sovereign states.

Legal Implications of Dissolution:

No single state claims continuity (unlike mergers).
New states must apply for UN membership.

Examples of Dissolution:

Soviet Union (1991): Broke into Russia, Ukraine, Belarus, etc.
Czechoslovakia (1993): Split into Czech Republic and Slovakia.

E. Formation of a New State

A new state may emerge through merger, secession, decolonization, or dissolution.

Legal Criteria for Statehood (Montevideo Convention, 1933)

A state must have:

A permanent population.
A defined territory.
A government.
Capacity to enter into international relations.

Examples of Newly Formed States

Timor-Leste (2002): Gained independence from Indonesia.
Eritrea (1993): Seceded from Ethiopia.

Relevant International Laws and Articles

A. Vienna Convention on Succession of States in Respect of Treaties (1978)

Article 1: Applies to cases of state succession.
Article 16: Newly independent states are not bound by predecessor treaties.

B. Vienna Convention on Succession of States in Respect of State Property, Archives, and Debts (1983)

Article 8: Defines state property as assets owned by the predecessor state.
Article 15: Newly independent states are entitled to property from the predecessor state.
Article 38: No public debt is transmitted without consent.

C. Customary International Law

Uti Possidetis Juris: Newly independent states must maintain existing boundaries.
Self-Determination: People have the right to determine their political status

6. Conclusion

The processes of merger, secession, dissolution, and new state formation shape international law and sovereignty. While legal frameworks exist, each case depends on political negotiations, international recognition, and treaty obligations. Understanding legal doctrines, historical precedents, and case laws is crucial to analyzing state succession.

c. Succession to Treaties

1. Introduction

When a state undergoes succession, one of the most complex legal issues is determining whether the new state is bound by the treaties of its predecessor. This process is known as succession to treaties, which determines the continuity or discontinuity of international agreements when a change in sovereignty occurs.

This issue is governed by customary international law and the Vienna Convention on Succession of States in Respect of Treaties (1978). However, state practice varies, and different approaches apply depending on the type of succession.

2. Definition of Succession to Treaties

Succession to treaties refers to the legal process by which a new state assumes, continues, or rejects the treaty obligations of its predecessor state due to state succession.

Legal Definitions:

· Vienna Convention on Succession of States in Respect of Treaties (1978), Article 2(1)(b):

“Succession of States” means the replacement of one State by another in the responsibility for the international relations of a territory, including in respect of treaties.”

· Prof. Ian Brownlie:

“The process where a state assumes the treaty obligations of its predecessor following a territorial or sovereignty change.”

· ICJ (Gabcíkovo-Nagymaros Project Case, 1997):

“A state succession results in the reassessment of treaty obligations, which may either continue or be renegotiated.”

3. Historical Background of Treaty Succession

The rules of treaty succession have evolved over centuries:

1. Pre-20th Century:

Treaties were often considered territorial in nature, meaning that treaty obligations continued with the land rather than the ruler.
Example: The Treaty of Westphalia (1648) maintained peace agreements despite changes in rulers.

2. Post-World War I and II:

The dissolution of Austria-Hungary (1918) and the division of Germany (1945) raised the question of which treaties continued.

3. Decolonization (1945–1975):

Newly independent states rejected colonial treaties, leading to the Clean Slate Doctrine.
The Vienna Convention on Succession of States in Respect of Treaties (1978) was introduced to create uniform rules.

4. Post-Cold War (1990s):

The dissolution of the USSR, Yugoslavia, and Czechoslovakia led to varied treaty succession practices, based on political and diplomatic negotiations.

4. Doctrines Governing Treaty Succession

Two key doctrines apply to treaty succession:

A. Doctrine of Continuity

The new state inherits the treaty obligations of its predecessor.
This doctrine is based on the principle of Pacta Sunt Servanda (agreements must be kept).
Example: Germany (1990) continued the international obligations of West Germany.

B. Clean Slate Doctrine

The new state is not bound by the predecessor’s treaties unless it explicitly agrees to accept them.
This applies mostly to newly independent states emerging from decolonization.
Example: India (1947) selectively accepted British treaties, while Algeria (1962) rejected French agreements.

5. Vienna Convention on Succession of States in Respect of Treaties (1978)

The Vienna Convention (1978) is the primary treaty governing succession to treaties.

Key Provisions:

Article 16: Newly independent states are not bound to maintain or accept predecessor treaties unless they choose to do so.
Article 34(1): In other cases of state succession (e.g., merger or dismemberment), treaties continue unless renegotiated.
Article 11: States can opt to continue treaties through explicit consent.
Article 24: Certain treaties, such as human rights and boundary treaties, must continue due to their importance to international stability.

Limitations:

The convention has not been ratified by major powers like the USA, Russia, and China, limiting its universal acceptance.
Many states still rely on customary international law and diplomatic negotiations for treaty succession.

6. Types of Treaty Succession and State Practice

The application of treaty succession varies depending on how the state succession occurs.

A. Treaty Succession in Cases of Universal Succession

When a state completely ceases to exist and is replaced by another, the successor state typically inherits all treaties.
Example:

German Reunification (1990):

The Federal Republic of Germany (West Germany) absorbed East Germany.
All West German treaties remained valid.

B. Treaty Succession in Cases of Partial Succession

When a new state emerges but the predecessor state continues to exist, treaty succession is case-specific.
Example:

South Sudan (2011):

Became independent from Sudan.
Did not inherit Sudan’s treaties but selectively joined international agreements.

C. Treaty Succession in Cases of Secession

A region secedes from a parent state but does not eliminate the predecessor state.
The seceded state must negotiate treaty succession.
Example:

Bangladesh (1971):

Broke away from Pakistan.
Did not automatically inherit Pakistan’s treaties but later negotiated its membership.

D. Treaty Succession in Cases of Dissolution of a State

When a state completely dissolves into multiple new states, treaties are divided either equally or based on agreements.
Examples:

Soviet Union (1991):

Russia inherited the USSR’s seat in the UN and its nuclear treaties.
Other successor states had to renegotiate treaties.

Czechoslovakia (1993):

The Czech Republic and Slovakia agreed to divide treaties based on necessity.

E. Treaty Succession in Cases of Merger

When two states merge, treaty obligations usually continue.
Example:

Tanganyika and Zanzibar (1964):

Merged to form Tanzania.
Adopted most treaties from both predecessor states.

7. Special Categories of Treaties in Succession

8. Case Laws on Treaty Succession

A. ICJ Cases

1. Gabcíkovo-Nagymaros Project Case (1997)

ICJ ruled that state succession does not automatically terminate treaty obligations.

2. Frontier Dispute Case (Burkina Faso v. Mali, 1986)

ICJ upheld the principle that boundary treaties must always be respected despite state succession.

B. State Practice

1. Russia (1991):

Inherited USSR’s UN seat and nuclear agreements.

2. India-Pakistan (1947):

India continued British treaties, while Pakistan had to negotiate new ones.

Conclusion

Succession to treaties is a complex process determined by legal principles, state practice, and diplomatic negotiations. While the Vienna Convention (1978) provides a framework, actual implementation varies. Boundary treaties, human rights treaties, and security agreements often continue, while political and economic treaties may be renegotiated. Each case depends on the doctrines of continuity, clean slate, and state practice.

d. Succession with Respect to Matters Other Than Treaties

- Political Rights

- Public Debt

- Private Contracts

- Torts

State succession not only affects treaties, but also political rights, public debt, private contracts, and torts. These aspects determine how a new or successor state handles international responsibilities and legal obligations inherited from its predecessor. Unlike treaties, these matters are more complex because they involve economic stability, individual rights, and liabilities.

This section explains each part extensively, using legal principles, real-world examples, and ICJ case laws for better understanding.

1. Political Rights in State Succession

Political rights refer to a state’s participation in international organizations, diplomatic recognition, and representation in international agreements.

A. Impact of State Succession on Political Rights

When a state undergoes succession, its political rights are affected in several ways:

1. Membership in International Organizations

If the predecessor state continues to exist, political rights remain unchanged.
If a state dissolves, new states must apply for membership again.

Example:

India-Pakistan (1947):

India was considered the continuing state of British India and retained its UN membership.
Pakistan had to apply separately.

Soviet Union’s Dissolution (1991):

Russia took the USSR’s seat in the UN, while other former Soviet republics had to apply separately.

2. Right to Diplomatic Representation

Diplomatic missions (embassies, consulates) may need reallocation or division between successor states.

Example:

After Czechoslovakia split into Czech Republic and Slovakia (1993), they divided embassies and diplomatic properties.

3. Political Agreements and Alliances

Some alliances continue, while others require renegotiation.
NATO membership was not automatically extended to former USSR states—they had to apply separately.

B. Legal Framework for Political Rights in Succession

Vienna Convention on Succession of States in Respect of Treaties (1978):

Article 34(1): A successor state may or may not continue its predecessor’s political obligations.

Customary International Law:

A state cannot inherit political alliances unless all members agree.

2. Public Debt in State Succession

Public debt refers to the financial obligations (loans, liabilities) of a state that need to be resolved when a new state is formed.

A. Key Legal Question: Who Pays the Debt?

The responsibility for public debt depends on the type of state succession:

Total Succession (Universal Succession) → The new state inherits all debts.
Partial Succession (Dissolution, Secession) → Debts may be divided or rejected.

B. Doctrines Governing Public Debt Succession

1. Doctrine of Continuity

If the state continues to exist, it must pay the debts.
Example: German Reunification (1990) – Germany continued to pay debts of East Germany.

2. Clean Slate Doctrine

A newly independent state is not required to inherit colonial debts.
Example: Many African countries rejected colonial debts after independence from European powers.

3. Equitable Distribution Doctrine

Debt should be proportionally shared among successor states.
Example:

Dissolution of Yugoslavia (1991): Serbia, Croatia, and Bosnia divided Yugoslavia’s debts based on economic size.

C. Case Studies of Public Debt Succession

1. USSR Dissolution (1991)

Russia assumed most Soviet debts, but Ukraine and Kazakhstan refused.

2. Sudan and South Sudan (2011)

Sudan had a $38 billion debt. South Sudan refused to inherit any debt, arguing it was never an independent borrower.

D. Legal Framework for Public Debt

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

Article 38: No public debt is transferred without agreement.

ICJ Precedents:

Debt succession is case-by-case and depends on political negotiations.

3. Private Contracts in State Succession

Private contracts include agreements between individuals, businesses, or foreign investors that existed before the state succession. The key question is: Should successor states honor these contracts?

A. Theories of Private Contract Succession

1. Automatic Succession Theory:

The successor state must respect all contracts unless renegotiated.
Example: When Hong Kong transferred to China (1997), China agreed to honor British-era contracts.

2. Clean Slate Theory:

Private contracts do not automatically transfer.
Example: After Czechoslovakia dissolved (1993), private contracts were re-signed under Czech and Slovak laws.

3. Discretionary Continuation Theory:

Contracts may continue based on national laws and agreements.

B. Case Studies on Private Contracts

1. Yugoslavia’s Dissolution (1991):

Foreign investors demanded that Croatia and Serbia honor Yugoslavia’s business contracts.
Croatia refused, leading to legal disputes in international courts.

2. Crimea’s Annexation by Russia (2014):

Contracts signed under Ukrainian law became invalid in Russia.
Many businesses renegotiated contracts under Russian law.

C. Legal Framework for Private Contracts

Vienna Convention on Succession of States in Respect of Treaties (1978):

Does not directly regulate private contracts.

Customary International Law:

Private contracts should generally be respected unless major legal conflicts arise.

4. Torts in State Succession

Torts refer to civil wrongs or damages caused by the predecessor state. The main issue is: Should the successor state be responsible for past injustices or compensation claims?

A. Theories of State Responsibility for Torts

1. State Immunity Doctrine:

The successor state is not liable for past torts unless it explicitly accepts responsibility.
Example:

USSR’s collapse (1991): Russia refused to compensate for Soviet human rights abuses.

2. Doctrine of Continuity in Liability:

The successor must pay compensation for wrongful acts.
Example:

Post-Nazi Germany: Germany paid reparations for Holocaust crimes.

3. Doctrine of Non-Succession in Torts:

A state cannot be held responsible for the wrongful acts of a previous government.
Example:

South Africa after Apartheid (1994): The new government did not accept liability for Apartheid-era torts.

B. Case Studies on Torts in State Succession

1. Robert E. Brown v. Great Britain (1923) (Arbitral Award)

South Africa was annexed by Britain (1900).
Brown, a US citizen, sued Britain for damages caused by South Africa before annexation.
Ruling: Britain was not responsible for the predecessor government’s actions.

2. Bosnia v. Serbia (ICJ, 2007)

Bosnia sued Serbia for genocide during Yugoslavia’s breakup.
Ruling: Serbia was not held liable for crimes committed by Yugoslavia.

C. Legal Framework for Torts

International Law Commission’s Articles on State Responsibility (2001):

A state is only responsible for its own internationally wrongful acts, not those of a predecessor.

Conclusion

Succession to political rights, public debt, private contracts, and torts is complex and varies case by case. Unlike treaties, these matters involve economic, legal, and moral considerations. While some obligations continue, others depend on political agreements, international law, and state practice.