Legal Service India - State Succession In International Law-Debt, Property & Asset

State Succession In International Law-Debt, Property & Asset

Written by: Divyam Agarwal & Mohit Goel - Final Year Students, Amity Law
School Yasho Bhawan, New Delhi Chat wit

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Since World War II, State succession has become increasingly important as it affects more State
relationships than ever before. Approximately 100 new States emerged with the end of decolon
reunified, while the Soviet Union, Yugoslavia and Czechoslovakia dissolved. These changes affe
than the earlier decolonization process. These newly formed European States are more integra
economic and legal global framework and are of greater importance, than were the former dep
became new States.(1) This Article attempts to introduce the law of state succession, the effec
This article tries to reflect upon the nature of the problems that arise and may go some way tow
effect. This Article will argue that in spite of a failure to codify State succession matters, a lack
authors, and clear tendencies in older precedents, there seems to be an emerging consensus in
that State succession should not normally lead to a disruption of legal relationships at all levels

A. Attempts to Codify or Legislate the Law of State Succession

Jennings has very correctly remarked that the law of state succession is a subject which presen
practice as to give some plausibility to a surprisingly varied range of theoretical analysis and d
which has been largely confused and resistant to simple exposition. Despite the vast amount o
rarely is mention made of the topic without reference to the complexity of issues involved, the
that has polarized thinking, and the lack of any agreed theoretical structure. The ILC commente
State practice afforded no convincing evidence of any general doctrine by reference to which th
succession in respect of treaties could find their appropriate solution.(3)

The International Law Commission (ILC) has considered the matter extensively (4), and two inte
law of state succession have been adopted (5). Neither of the two conventions has entered into
but fifteen ratifications or accessions for entry into force.(6) The ILC deals with State succession
headings:
1) Treaties: the Vienna Convention on Succession of States in Respect of Treaties (Vienna I);(7)
2) State property, State debt and State archives: the Vienna Convention on Succession of State
Archives and Debts (Vienna II);(8)
3) Membership to international Organizations: the ILC Rapporteur concluded that the subject m
codification. The Rapporteur recommended a report to provide illustrations for resolving differe
illustrations which could have a unifying effect on the practice of Organizations;(9) and
4) State succession and its impact on the nationality of natural and legal persons: the Rapporte
prospects for codification and recommended an ILC report or a United Nations General Assemb
minimum standards for the automatic acquisition of nationality. These minimum standards wou
State legislation concerned with State succession.(10)

B. Legal Doctrine

The ILC's failed efforts to codify or legislate a doctrine for State succession reflects the state of
by precedents in State praxis and opinions of learned authors.(11) State practice and legal theo
separate approaches dealing with the legal consequences of such succession:
1) The continuity of treaties, claims, debts, etc.;
2) the discontinuity "clean slate" or tabula rasa;
3) a casuistic distinction according to the type of State succession or to the type of legal relatio
4) a case-by-case settlement by mutual agreement between the successor State and other Sta
option includes the application of the rebus sic stantibus principle although the widely-accepted
Law of Treaties only allows the principle to be applied within an existing treaty relationship.(12)
presupposes agreement on the treaty's continuity.

For many authors, the central issue of substance is simply whether or not one of two alternativ
the universal succession thesis or the clean slate (tabula rasa) thesis.(13) The former approa
Roman law concept of inheritance in civil law, in which the heres (the appointed successors) ac
but an aggregate of rights and liabilities called a iuris universitas.(14)

A. Tabula rasa: The Clean Slate Doctrine

The option of simply denying State succession to treaties, known as the tabula rasa or clean sla
international law after each case of State succession has never been adopted or openly defend
The clean slate thesis appears to have emerged in the late nineteenth century as a result of t
imperative approaches to law. It proceeds from an understanding of law as deriving from the ex
and embodies thereby the view that legal relations are essentially personal. As a result, the pro
necessarily involves a legal hiatus when the sovereignty of one state comes to an end and ano
situation, there can be no transfer of rights or obligations between the old and the new state.(
sovereign is free of all rights and obligations save those it assumes afresh.
As Sir Thomas Baty(16) has asserted:
If the government functioning in a given area disappears, and is succeeded by no one governm
arise and maintain themselves in various portions of the original area, then it is clear that the S
and that several new states arise on its ruins. Were it otherwise, Italy as the heir of the Roman
title to the whole continent of Europe.

Does the application of the tabula rasa doctrine also suggest that the Successor State may not
property or the debt of the Predecessor State?(17) The ----main argument in favor of the clean
are generally burdensome restrictions to sovereignty and that a new State should be free to rec
State's treaties. The rationale being that a fundamental change of circumstances results in the
it is not the upholder of the obligations entered into by its predecessor.(18) The distinction Vien
independent States, which are offered a clean slate, and other successor States, has been justi
these formerly dependent territories did not have a voice in the adoption of the predecessor St
separated States presumably did.(19) In fact, even Austria avoids application of its clean slate
practical continuation of treaty relations until a new agreement has been reached.(20) Austria
to continue with some States and has confirmed these lists in an exchange of notes after receiv
approval. Austria has perceived the act as one of novation and the conclusion of a new treaty.

This analysis was also adopted by the Sixth Legal Committee of the General Assembly (21) dur
Pakistan from India and stated that when a new state is created by separation from a member
couldnt under the system of the Charter claim the status of a member of the U.N. unless it has
such in conformity with the provisions of the Charter(22). Therefore, states will not remain mem
extinguished and new states will remain as new states.(23

B. Universal Succession: The Continuity Theory

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

The universal successor assumes the whole of the legal clothing of the person to whom he succ
his shoes. He takes over his rights and liabilities of every kind; his property (res singulae) and i
other obligations (such as rights of action for damages for breach of contract) owing to him, an
which he owes

It was in the work of Gentili(27), Grotius(28) and Pufendorf(29) that such concepts found their w
the body of international law, it being argued that the rights and duties of the predecessor pass
sovereign. Although such authors were generally concerned primarily with succession of the pe
what is now referred to as succession of governments), rather than succession of states, the u
survived largely intact until the late nineteenth century.(30) By this stage it found its justificatio
dogma but in theories of popular continuity(31), organic substitution(32) and, improbably en

Under the continuity theory, there can be only two ways to view the division of a state: (i) as a
the divisions represents the continuing existence of the State while the others represent States
(ii) as a complete "dissolution," in which the State has been dissolved and none of the resulting
continuity. Thus, the determination of whether the changes in a State constitute an extinction o
critical to the inheritance of its rights and duties and other obligations. The legal identity of a S
through division,(34) if it loses (a) Majority of the population and territory of the former state;(3
original territorial nucleus, or areas from which it obtained extensive revenues(36); (c) accepta
community regarding its continuity.(37)

The universal succession thesis demands too much. It argues for the maintenance of legal cont
which some alteration of legal relations is both inevitable and necessary. It assumes that states
obligations in a situation where specific consent is palpably absent, not because of any univers
some inchoate systemic interest in legal continuity. OConnells approach in this regard is undo
reason his tentative phraseology is entirely apposite. His suggestion is tantamount to a disposa
succession understood as an inheritance or assumption of rights and obligations by referen
division between succession and non-succession but to the integrity of the legal relations them

The law of state succession has, for some time, been explicitly contingent upon the personality
its identity or continuity, which remained the point of differentiation between the operation o
Identity, therefore, serves to differentiate between a case of cession (or secession) and one of d
a case of absorption (or annexation) and one of union, and between the birth of a new state an
case, the defining consideration is whether or not the state concerned retains its legal identity;
continues its personality as a state. Such differentiations are thought to be particularly importa
presumes that all decisions relating to the continuation or otherwise of a states rights and duti
be dependent upon the universal characterization adopted. This, in turn, flows from the propos
international rights and duties inheres in an entity with appropriate legal personality. Identity, t
determining the proper set of norms that are to be applied in a given case.

The point of difference between identity and personality of a state may be described as follo
statehood and personality proceed on the understanding that states have certain attributes or
they are thereby attributed with, or inherently enjoy, certain competencies under international
by contrast, assumes that individual states, whilst being members of a particular class of socia
certain distinguishing features that differentiate one from another. Identity, therefore, presume
with what is personal or exceptional in the nature of the subject.

Therefore stating as precedent the reunification of Germany did not affect the legal position of
Germany since it remained identical with itself after the incorporation of the new Lander emerg
Because the State authority was the same as before and the State's territory was merely enlarg
applies under the law of succession.(40) Furthermore, even the population of the enlarged Fede
The GDR underwent a peaceful revolution when demonstrators changed their slogans from "We
sovereign, above the State organs) to "We are one people." Despite the incorporation of the GD
Germany, there was of course State succession as to the GDR since the GDR had actually and l
entity.

In comparison, the claim of the Federal Republic of Yugoslavia (Serbia and Montenegro), create
identical with the former Socialist Federal Republic of Yugoslavia (SFRY) could only be upheld if
nation. However, this condition was manifestly not present since four of the six federated State
independent after having been authorized to do so by plebiscites. Additionally, the organized p
did not survive the disruption of the Federation.
II. State Succession

Although state succession (41) forms part of the established corpus of classical international la
confusion and inconsistency. As the German Federal Supreme Court noted in the Espionage Pro
problem of State Succession is one of the most disputed areas of international law. (43) Why th
fascinating question. Different international crises resulting from termination of particular state
been treated in a consistent fashion for a host of political reasons and this has inevitably led to
relevant legal rules which predictability. Accordingly, one needs to sift through such diffuse and
practice, bearing in mind that specific bilateral solutions to particular problems may not necess
generalisable. The pattern of international reaction to such specific episodes needs to be carefu
in a situation of inconsistent and uncertain practice assumes perforce a greater importance tha
the case. As the Arbitration Commission established by the Conference on Yugoslavia starkly em
established principles of international law that apply to State succession. Application of these p
determined case by case though the 1978 and 1983 Vienna Convention do offer some guidanc

States and the concept of statehood (45) lie at the heart of international law. As Oppenheim no
subjects of international law and thereby possess international personality of the fullest kind.(4
cannot tackle the question of State succession, i.e the issue of transmission of rights and obliga
another without at first confronting the problem of statehood. Succession is predicated upon th
States has been resolved in a way that the issue of identity or continuity of States has been res
the international community with at least two states.(47) Of course, in the vast majority of case
this point, but in some situations this will not be so. In addition, it is important conceptually to d
upon statehood from those concerned with succession in order to be able to appreciate the cru
legal consequences flowing from a determination as between continuity and succession.

A. What is State Succession?

Oppenheim(48) has stated that a succession of international persons occurs when one or more
the place of another international person, in consequence of certain changes in the latters con
may involve any category of international persons, but it is convenient here to consider only su
whether fully or partially sovereign. While Feilchenfeld simply notes that the transfer of one Sta
described as State Succession.(50)

Vienna I and II state that succession is "the replacement of one State by another in the respons
relations of a territory."(51) This definition excludes mere changes of government like those rev
a State brought about by the introduction of socialism or by its abolition. The Vienna Conventio
questions as to, what is a state? - In the same way that all invocations of the principle of self-de
whom the right is granted. The definition of State succession limits itself to a symptom or to th
international law in the succession of responsibility for a predecessor State's international relat
responsibility for international relations is the result of a social, political, and historical process
fields of national constitutional, administrative, and civil law. And there the question concerning
succession frequently becomes unavoidable, especially when it is necessary to determine the d
succession has taken place. In addressing the issue of when a succession has occurred, the Vie
'date of the succession of States' means the date upon which the successor State replaced the
responsibility for the international relations of the territory to which the succession of States re
succession must be considered when a State claims to be identical with a former State. The de
Conventions correctly reflects the general conviction that a State identical with another one ca
The issue of state succession can arise in a number of defined circumstances, which mirror the
sovereignty may be acquired by, for example, decolonization of all or part of an existing territo
an existing state, secession, annexation and merger. In each of these cases a once-recognized
in part to be succeeded by some other authority, thus precipitating problems of transmission o
However, the question of state succession does not infringe upon the normal rights and duties
law. These exist by virtue of the fundamental principles of international law and as a consequen
a result of transference from the previous sovereign. The issue of state succession should also
questions of succession of governments, particularly revolutionary succession, and consequent
responsibility.(54)

Obviously the problem is different in the case of total acquisition from what it is the case of par
case there is no surviving person to whom antecedent rights and obligations may still be attrib
case there is. The problem in the one case is to ascertain what rights and obligations pass to th
lapse for want of a juridical entity in which they can be invested. The problem in the other case
and obligations, which are automatically transferred to the successor state from those, which re
State.
Who decides whether State succession has taken place? The international community can influ
State decisions are not, however, determinative, creating a problem similar to that of recognitio
cannot recognize an entity as a sovereign State that does not want to be one, likewise third Sta
in cases of State succession. Thus the claim of Estonia, Latvia and Lithuania not to be successo
has been generally accepted in State practice. Although third States cannot force sovereignty u
States can withhold recognition, and thus undermine a State's claim to succession. For example
community disregarded Yugoslavia's (Serbia and Montenegro) claim to be identical with the SFR
have been compatible with the recognition of Slovenia, Croatia, Bosnia and Herzegovina, and M
with internationally recognized frontiers. It is precisely these frontiers that were questioned by
Yugoslavia through its claim to be identical to the former SFRY.(55)

V. Succession to State Debt and State Property: Negotiated Settlements

1. Vienna Convention on Succession of States in Respect of State Property, Archives and Debts

Vienna II was drafted on the basis of 13 reports elaborated by Mr. Mohammed Bedjaoui, the spe
Convention was adopted with 54 votes in favor (mainly socialist and developing States), with 1
abstentions (Western States). It has not entered into force, as it obtained only 6 accessions out
Croatia, Estonia, Georgia, Slovenia, the former Yugoslav Republic of Macedonia and Ukraine. Six
Convention. Significantly, States having deposited their instrument of accession are all emerge
the USSR and the SFRY.(56)

General provisions of the Convention (Art.1-6, concerning definitions, non-retroactivity of the C

conformity of succession with international law, general clause concerning guarantees of rights
individuals, etc.) correspond with the respective provisions of the Vienna Convention of 1978 on
respect of treaties. Substantive provisions of the Convention can be divided into two groups: ge
all the types of succession, and specific regulations dealing with particular types of succession.
defined as all kinds of property, rights, and interests that, at the date of the succession of State
Predecessor State in accordance with its domestic law. During the codification conference a spe
order to guarantee the integrity of the predecessors property before its transfer to the Success
effects of the transfer of State property were defined in Art.9 of the Convention, according to w
predecessor State expire and they are replaced by the equal (as to the scope) rights of the suc
the property cannot influence any possible rights and interests of third parties. The Predecesso
indemnity. Finally, a general rule providing for the priority of an agreement between the Predec
State (so called devolution agreement) as to the partition of State property was confirmed.

In all the types of State succession the transfer of an immobile property to the successor was c
concern a destiny of mobile property in particular types of succession. In the case of cession, th
the part of the mobile property connected with the predecessors activities in the ceded part of
the uniting of States, clearly and manifestly logical solution provides that the successor State a
the predecessor State or States. According to Art.17 and 18 of the Convention, in cases of sepa
States the successor State acquires the immobile property situated in its part of the territory, t
the activities of the predecessor State in the respective part of the territory, and -in the case of
share of the remaining mobile property as well as of the property of the predecessor State situa
immobile). Finally, special provision of Art.15 dealt with the position of the newly independent S
Those States should receive not only the whole property of the predecessor State situated in th
but also property having belonged to the territory of the successor State and situated outside i
of the predecessor State during the period of dependence. In particular, the proviso of Article 1
38, paragraph 2, with regard to debts, establishing that the devolution agreements with newly
infringe the principle of the permanent sovereignty of every people over its wealth and natural
rejection of the Convention by the Western States.

Art.19-31 of the Convention dealt with the succession in respect of State archives and constitut
to the provisions concerning the State property. General provisions of that chapter correspond w
concerning the State property. Specific regulations relating to the respective types of successio
the devolution agreement. If no agreement was concluded, in the case of cession the successo
of the archives necessary for an efficient administration of the acquired territory, as well all the
mostly to the ceded territory. Other documents should be reproduced upon request, at the expe
The provisions concerning secession and dismemberment provide for the partition of the archiv
accordance to the model elaborated in the case of cession. Finally, in the case of the unification
State acquire all the archives of the predecessor State - in most cases all the archives are situa
Special provisions guaranteed also a privileged position of the newly independent States, which
the archives of the former metropolis. The solution would seem contrary to Art. 25 of the Conve
principle of the unity of archives. Nevertheless, the fact that part of the archives obtained is clo
independent State, in particular to its territory, explains that choice.

According to Art. 33, the Convention regulated the succession of financial obligations of States
international organizations and other subjects of international law, then excluding private parti
refer to any classification of debts mentioned above. Another important provision of the Conve
succession of States itself does not infringe any rights of the creditor. That clause is important i
provision that the succession cannot infringe rights and duties of third parties. The rights of the
by a mere devolution agreement. In all cases in which a partition is required, the criterion gene
Convention was that the debt passes to the successor State in an equitable proportion. The exc
the newly independent States, for which no debts pass to them, unless an agreement provides
agreement does not infringe the principle of sovereignty of peoples over wealth and natural res

Again, this solution was one that provoked the rejection of the Convention by Western States. A
succession, in the case of the cession the primacy of the agreement between the parties was e
such agreement, the successor State should pay an equitable share of the debt of the predeces
solutions were applied in cases of secession and dismemberment of the predecessor State (Art
be divided into proportional shares. With the exception that the property, rights and interests th
State shall be taken into consideration for the determination of an equitable proportion, the Co
other criteria of equitable partition. Finally, in the case of unification of States, the debt should
State.

2. State Succession to Assets and Debts

The primary rule with regard to the allocation of assets (including archives) and debts in succes
relevant parties should settle issues by agreement. Virtually all of the rules that are formulated
operate only where such agreement has not taken place. In addition the Yugoslav Arbitration C
Opinion No. 9 that the successor States to the SFRY must together settle all aspects of the succ
and reinforced this approach in Opinion No. 14, declaring that the first principle applicable to S
successor States should consult with each other and agree a settlement of all questions relatin

The public debt (or national debt) is that debt assumed by the central government in the intere
constitutes a particularly sensitive issue since third parties are involved who are often reluctan
identity of the debtor. And as article??? of Vienna II notes a succession of States does not as su
obligations of creditors. Art. 40 of Vienna II provides that where part of a state separates to from
otherwise agreed, the state debt of the predecessor state passes to the successor state in an e
into account in particular the property, rights and interests which pass to the successor state in
doubtful that this proposition constitutes a codification of customary law as such in view of the
practice of States to date, but it does reflect a viable approach.

(Brownlie) It follows from what has already been said that the successor state has a right to tak
to the former state, including the right to collect taxes due. Zemanek(60) confines succession t
independence an autonomous political dependency has through the agency of the metropolitan
localized debt, which is automatically attributed to the new state after separation. In practice
obligations of the predecessor state against the successor only when the latter has recognized
state is a newly independent state, no state debt shall pass, except by agreement (and then o
are satisfied) (Art. 38). According to Article 2(I)(e) a newly independent state means a success
has been a dependent territory for the international relations of which the predecessor state w

Public debts may be divided into national debts, being debts owned by the State as a whole; lo
contracted by a sub-governmental territorial unit or other form of local authority, and localized
by the central government for the purpose of local projects or areas.
Local debts clearly pass under customary international law to the successor State, since they c
entered into by sub-governmental territorial authorities now transferred to the jurisdiction of th
succession does not directly affect them, in effect, they continue to constitute debts borne by t
question.(61) Similarly, localized debts, being closely attached to the territory to which the suc
the successor state in conformity with the same territorial principle.

In truth, one cannot provide a definitive answer to the question as the allocation of the nationa
secession or separation where the predecessor state continues to exist, it would appear that th
responsibility for the general State after the succession.(62)
With regard to secured debts, the general view appears to be that debts secured by mortgage
territory in question survive the transfer of that territory. In question survive the transfer of tha
Germain and Trianon in 1919, for example, (article 203 and 186 respectively) provided that ass
remain so pledged with regard to that part of the national debt that had been agreed would pa
state. Such debts had to be specifically secured and the securities had to be railways, salt mine
However, where debts have been charged to local revenue, the presumption would lie the othe

References
1. See D.P. O'Connell, Reflections on the State Succession Convention, 39 ZaoRV 725 (1979).
2. Jennings, General Course on Principles of International Law, 121 RdC (1967), at 437.
3. Yearbook ILC (1974 - II, part i), at 168, para. 51. See also Castrn, Obligations of States Arisi
of Another State, 13 ZaRV (1951) 753.
4. The problem of state succession was placed on the ILCs agenda at its first session in 1949, f
of Lauterpacht in his survey (UN Doc. A/CN.4/1/Rev.1, 10 Feb. 1949), 1 Yearbook ILC (1949) 53,
5. Vienna Convention on State Succession in Respect of Treaties, 17 ILM (1978) 1488; Vienna C
Succession in Respect of Property, Archives and Debts, 1983, 22 ILM (1983) 306.
6. Ethiopia, Iraq, Slovakia and Yugoslavia ratified Vienna I; while Dominica, Egypt, Estonia, Moro
Ukraine have acceded. Bosnia and Herzegovina, Croatia and Slovenia have succeeded. No Stat
only Croatia, Estonia, Georgia and Ukraine have acceded
7. Vienna Convention on Succession of States in Respect of Treaties, Aug. 23, 1978, U.N. Doc. A
[hereinafter Vienna I].
8. Vienna Convention on Succession of States in Respect of State Property, Archives and Debts
A/CONF.117/14 (1983) [[[hereinafter Vienna II].
9. Vaclav Mikulka, State Succession and its Impact on the Nationality of Natural and Legal Perso
Respect of Membership to International Organizations, in Outlines Prepared by Members of the
Topics of International Law, U.N. GAOR Int'l Law Comm'n, 45th Sess., at 26, 39, U.N. Doc. A/CN.
10. Id. at 33.
11. See Report of the International Law Commission to the General Assembly, 39 U.N. GAOR Su
A/36/10 (1981) [hereinafter Report of the ILC]; Report of the Commission to the General Assem
(1974), reprinted in [1974] II Y.B. Int'l L. Comm'n 157, U.N. Doc. A/CN.4/SER.A.1974/Add.1 (Part
Graving, Status of the New York Arbitration Convention: Some Gaps in Coverage but New Accep
Foreign Investment L.J. 1 (1995).
12. Vienna Convention on the Law of Treaties, May 23, 1969, art. 62, 1155 U.N.T.S. 331, 347 [h
13. Schaffer, Succession to Treaties: South African Practice in Light of Current Developments in
(1981) 593.
14. H. Jolowicz, Historical Introduction to the Study of Roman Law (1954), at 127.
15. Kevin H. Anderson, International Law And State Succession: A Solution To The Iraqi Debt Cri
406, 407. See also Akbar Rasulov, Revisiting State Succession to Humanitarian Treaties: is ther
Eur. J. Intl L. 141, 148 (2003).
16. Thomas Baty, The Obligation of Extinct States, 35 Yale L.J. (1925-26) 434.
17. Richard J. Graving, Status of the New York Arbitration Convention: Some Gaps in Coverage b
its Vitality, 10 Foreign Investment L.J. 1, 24-38 (1995).
18. D. OConnell, State Succession In Municipal Law And International Law 14-17 (1967); F.A. Va
of State Succession, 41 Transactions of the Grotius Socy 123, 134 (1956); Hubert Beemelmans
International Law: Remarks on Recent Theory and State Praxis, 15 B.U. Intl L.J. 71, 115 (1997);
Federalism: U.S. And Canadian Perspectives Challenges To Sovereignty and Governance, 20 Ca
19. Id. at 24, 25.
20. Helmut Tichy, Two Recent Cases of State Succession--An Austrian Perspective, 44 Austrian J
(1992)
21. Statement by the Rapporteur of the Sixth Committee of the Legal problems raised by the R
during the Discussion of the Admission of Pakistan, U.N. GAOR 6th Comm., 2nd Sess., U.N. Doc
U.N. GAOR, 6th Comm., 2d Sess., 42d and 43d mtgs. at 37, U.N. Doc. A/CN.4/149 (1947).
22. Art. 4, Charter of the United Nations 1945.
23. D. OConnell, State Succession In Municipal Law And International Law (1967).
24. D. OConnell, State Succession In Municipal Law And International Law (1967), at 228; Odon
States To International Treaties 22 (1972).
25. Oscar Schachter, The Development of International Law Through the Legal Opinions of the
Brit. Y.B. Int'l L. 91, 105 (1948).
26. James Crawford, The Creation of States in International Law 400 (1979).
27. De Jure Belli Libri Tres (1612, Translated by Rolfe, 1964) III, at xxii.
28. De Jure Belli ac Pacis, II, ix, 10-12, xiv, 1, 10. See OConnell, supra note 3, vol. I, at 9-10.
29. De Jure Naturae et Gentium Libri Octo (1688, translated by Oldfather and Oldfather, 1934)
30. OConnell, State Succession and the Theory of the State, Grot. Soc. P. (1972) 23.
31. P. Fiore, International Law Codified and its Legal Sanction (5th ed., 1918), at 133.
32. J. Westlake, International Law (1904), at 61; Idem, The Nature and Extent of the Title by Co
33. Matthew C.R. Craven, -The Problem of State Succession and the Identity of States under Int
34. Marco A. Martins, An Alternative Approach to the International Law of State Succession, 44
Scharf, supra note 14, at 41.
35. Rein Mullerson, International Law, Rights and Politics: Developments in the Eastern Europe
Makonnen, International Law and The New States of Africa: A Study of The International Legal P
in The Newly Independent States of East Africa 129-32 (1983).
36. Scharf, supra note 14, at 41. See also Jenks, supra note 14, at 133-34; Vallat, supra note 7,
37. Carsten Thomas Ebenroth et al., The Enduring Political Nature Of Questions Of State Succes
Quest For Objective Standards, 17 U. Pa. J. Intl Econ. L. 753, 755 (1996).
38. D. OConnell, State Succession in Municipal and International Law, vols. I, at 3 (1968).
39. K. Marek, Identity and Continuity of States in Public International Law (1954), at 205-210.
40. Article 29 of the Vienna Convention on the Law of Treaties.
41. OConnell, Recent problems of State Succession in Relation to New States, 130 RdC (1970)
Continuity and Succession of States by Reference to the Former USSR and Yogoslavia, Internati
Quarterly (1993) p. 473et seq; International Law Association, The Effect of Independence on Tre
Succession after Decolonisation, 116 RdC, p. 180 et seq.; O. Udokang, Succession of New State
New York, 1972; J.H.W. Verzijl, International Law in Historical Perspective, Leiden, 1974; Ian Brow
International Law, Oxford, 1998, chapter 28; UN, Materials on Succession of States, New York, 1
4/263, 1972 and UN, Materials on Succession of States, New York, 191978; International Law As
Independence on Treaties, London, 1965; S.Torres Bernardez, Succession of Staes in Internatio
Prospects (ed. M. Bedjaoui), Paris, 1991, p. 381; M.N.Shaw, State Succession Revisited, 5 Finni
Succession of States (ed. M.Mark), The Hague, 1999.
42. Case No. 2 BGs 38/91, 94 International law Reports, p. 68 et seq., at pp. 77-8
43. See also Brownlie, op. cit., p. 655 and Jennings, The Acquistion of Territory in International L
44. See Opinion No. 13, 96 International Law Reports, p. 726 et seq., atp. 728.
45. Oppenheims International Law, op. cit., pp. 234-5.
46. Oppenheims international Law, op. cit., p.120.
47. Marek, Identity and Continuity of States in Public International Law (1968) p. 10 et. Seq.
48. L. Oppenheim, International Law a Treatise, Edited by H. Lauterpacht, 8th Edition (1955), E.
49. Art. 2 of the Vienna Convention on Succession of States in respect of Treaties 1978 and of t
succession of States in respect of state Property, Archives and Debts.
50. Feilchenfeld, Public Debts and State Succession (1931) p.2. See also O. Udokang, Successio
International Treaties, New York, 1972 p. 106.
51. Vienna I, supra note 4, art. 2(1)(b) at 3; Vienna II, supra note 5, art. 2(1)(a), at 3. Both Vienn
State succession that have been brought about contrary to international law. Vienna I, supra no
supra note 5, art. 3, at 4.
52. Vienna I, supra note 4, art. 2(1)(e), at 3; Vienna II, supra note 5, art. 2(1)(d), at 3.
53. D.P. O'Connell, The Law of State Succession I-2 (1956).
54. See O Connell, State Succession, vol. I, chapters 8 and 14.
55. On December 16, 1991, the member States of the European Communities have, in the fram
cooperation, adopted a "Declaration on Yugoslavia and on the Guidelines on the Recognition of
respect of the inviolability of boundaries. European Community: Declaration on Yugoslavia and
Recognition of New States, Dec. 16, 1991, 31 I.L.M. 1485 [hereinafter Guidelines on the Recogn
56. International Law Association, Berlin Conference (2004), Aspects of the law of State Succes
57. The issue was decided by the PCIJ in the Chorzow factory case, PCIJ Publ. Series A, No.7, at
58. 92 International Law Reports, p. 205.
59. OConnell, op. cit. vol. I, p. 199 et seq.; Feilchenfeld, op. cit.; Materials on Succession of Sta
than Treaties (1978); Rousseau, Droit International Public, tome III (1977) p.374; Hoeflich, Throu
Reflections upon the History of the International Law of Public Debt in Connection with State Su
(1992) p. 39; Streinz, - Succession of States in Assets and Liabilities- A New Regime?, 26 Germa
Law (1983) p.198; Degan, State Succession Especially in Respect of State Property and Debts,
International Law (1993) p. 130.
60. 116 Hague Recuiel (1965, III), 225-70. See also Pittacos v. Etat Belge, ILR 45, 24 at 31-2.
61. OConnell, op. cit. vol. I, p. 416 et seq.
62. Ottoman Public Debt case, 1 UNRIAA, p. 529.
63. OConnell op. cit. vol I. Pg. 411.

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Q What is Succession? Discuss two kinds of succession.

Ans Succession is merger or absorbtion of one state by another state or states. State
succession is distinguished from govt. succession. When succession takes place then a state
loses itself fully or a part of its territory while in case of govt. succession only the
organization of a govt or constitutional structure changes.
The rule of state succession was incorporated from the Roman Law by Grotius. In
Roman law when a person dies his rights and duties are succeeded by his successor. A state
may lose part of its territory, or it may lose all of it. Loss of territory may result in the
enlargement of one or more states. When a succession situation arises, the point of chief
legal interest is the effect, on the international rights and obligations of the state or states
concerned.

Kinds of Succession. State succession are of two types (1) Universal Succession (2) Partial
Succession

(1) Universal Succession: If the legal identity of a community is completely destroyed there
is said to be universal succession of states. Universal succession takes place when a state is
completely absorbed by another, either through subjugation or through voluntary merger.
Universal succession takes place under the following circumstances
(a) When the territory of a state is forcibly annexed by other state.
(b) When a state voluntary merges into one or several states.
(c) When one state is divided into several states and several states are formed.

(2) Partial Succession: When as a result of civil war or war of liberation, a part of state breaks
off and takes up an independent position. Partial succession takes place under the following
circumstances
(a) When a part of the state revolts and after achieving freedom becomes a separate
international person.
(b) When a part of state is ceded to another state.
(c) When a state accepts the suzerainty or becomes a protectorate of another state.

Rights and Duties arising out of State succession:

When a state takes the place of another state following rights and duties arise.

(1) Political Rights and Duties: No Succession takes place in respect of political duties and
rights. The succession state is not bound by the treaties of peace or neutrality entered into by
the extinct state.

(2) Local rights and duties: In respect of land, rivers, roads, railways etc., therefore the
succeeding state succeeds the rights and duties of the former state.

(3) Debts: It depends on the discretion of succeeding state whether to pay or not to pay the
public debts of the former state.

(4) Nationality: The nationals of the former state lose their nationality at the extinction of
the state and becomes the nationals of new state.

(5) Laws: As far as the law of the former states are concerned, civil law continues until it is
changed by the succeeding state.

(6) Public funds and public property: The successor state takes over the public funds and
public property of the predecessor state.
State Succession occurs when one international person is replaced with another due to
changing circumstances in the State.

The Law of Succession was found in almost every jurisprudence. State Succession is a
principle in the Doctrine of Continuity of States and various State Succession Theories.
According to this, Government's might change but the State dosen't. Hence, even the rights
and liabilities of a State does not change on change of a Government.

Contents

[hide]

1Kinds of State Succession

2State Succession and Contracts

2.1Related Case Laws

3State Succession and Concessionary Contracts

3.1Related Case Laws

4State Succession and Unliquidated damages for Torts

4.1Related Case Laws

5State Succession and Treaties

6State Succession and Public Debt

Kinds of State Succession

State Succession is of two types:

Universal Succession

Partial Succession

State Succession and Contracts

Succeeding State should oblige the contracts made by its predecessor State. However, this is
not practical and is dependent on the circumstances.

Related Case Laws

West Rand Central Gold Mining Ltd (1905) (2 KB 391)

State Succession and Concessionary Contracts

The effect of State Succession on Concessionary Contracts (related to lands, mines or other
properties) is dependent on the circumstances

Related Case Laws

Premchibar vs. The Union of India (AIR 1966 SC 442)

State of Gujarat vs. Vora Fiddali (AIR 1964 SC 1043)

Bansidhar Premsukhdas vs. State of Rajasthan (AIR 1967 SC)

State Succession and Unliquidated damages for Torts

The Succession State is not bound to pay any unliquidated damaged for Torts committed by
predecessor State.

Related Case Laws

Robert E. Brown's Claim Case (1924)

State Succession and Treaties

Tradition view: The traditional view is that the Succeeding State is bound to follow all
treaties signed by its predecessor.

Modern view: Post the Vienna Convention on Succession of States, Succession State can
follow Clean State Rule and Moving Treaty Frontiers Rule.

State Succession and Public Debt

State Succession does not impact the rights and obligations of creditors.

If a new independent State is formed, the succession to public debt depends on the agreement
between the two States, provided otherwise, according to the convention.