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State Succession[1]

QUESTION BANK

Explain the concept of “State succession”. State kinds and consequences of state succession.
Explain the concept of ‘State Succession. State the kinds and theories of State Succession.

Short Notes

Kinds of State Succession.
State succession.

SYNOPSIS

I. Introduction-

Hugo Grotius introduced the concept of ‘State Succession’. He introduced this concept according to the rules of succession of private properties existing in Roman Law. According to him, a State also succeeds as an heir and becomes the successor of the deceased person’s rights and obligations.

As per the Vienna Convention,[2] “State Succession” means the replacement of one state with another in the responsibility for the international relations of territory.

Edward Collins differentiates “Succession of Government” from “Succession of the State”. According to him, “a succession of Government occurs when the government of the State is replaced with a new government”, which is not the subject of study here. The “State Succession” occurs when (i) a state ceases to exist, (ii) a new state is formed within the territory of an existing state (iii) territory is transferred from one state to another state. This is the topic of study here.

According to Prof. Strake, “State Succession” means the transmission of rights and obligations from states that have altered or lost their identity to other states or entities. Such alteration or loss of identity occurs primarily when complete or partial changes of sovereignty take place over a portion of the territory.

In other words, State Succession signifies the transfer of rights and duties from one international person to another as a consequence of a territorial change. A succession of States occurs when one State is substituted by another. Such substitution may take place either by absorption, subjugation, voluntary merger, split, etc.

The state that replaces another is called a ‘Successor State’ or ‘New State’, and the old state that is so replaced is called a ‘Parent’ or ‘Predecessor State’.

II. Kinds of State Succession-

State Succession has the following kinds-

1. Universal Succession-

When the personality of an existing state completely destroys it, and another state absorbs it, this is called ‘Universal’ or ‘Total’ Succession.

Universal succession takes place in flowing circumstances-

(i) By Annexation or Conquest[3]–

‘Universal succession’ takes place by force when one State absorbs another through annexation or conquest. For example, the South African Republic was annexed by Great Britain in 1901, Korea was annexed by Japan in 1910, and Abyssinia was annexed by Italy in 1936.

(ii) By Merger[4]–

Universal Succession occurs when several States voluntarily merge into a Federal State or a Union. For example, in 1990, the German States united to form the Federal Republic of Germany, and in 1845, the Republic of Texas was admitted to the USA.

(iii) By Split[5]–

Universal Succession also occurs when one State splits up into several States, each with a separate independent personality. Each of these independent states becomes a successor of the ‘parent state’. For example, the former USSR was split into several independent States in 1991.

III. Theories of State Succession-

(1) Universal Theory-

(2) Continuity theory-

Max Huber is the founder of this theory. The theory is thereafter upheld by Westlake. In fact, the theory is a modification of Universal theory. According to Huber, the Succession of States has two features, i.e. substitution plus continuation. According to him, the successor steps into the place of the predecessor and continues his rights and obligations so far as the succession of private and public law agree. Thus, according to him, the Successor State firstly substitutes the personality of its predecessor and, secondly, takes all the rights and obligations of the predecessor state as a whole. However, the Successor State does not discharge those obligations of the Predecessor State, which are essentially political in character.

Criticisms against the theory-

The theory is criticised because it is contrary to practice. The conquering States act by taking the utmost while admitting minimum obligations. The succeeding state gets as much as it can and is avidly liable of any sort.

(3) Negative theory-

According to Negative Theory, the Successor State does not succeed in the predecessor’s personality. In fact, the sovereignty of an earlier State is replaced by the sovereignty of another State. According to this theory, the Successor State exercises jurisdiction over the territory not by virtue of a transfer of power from its predecessor but because it has acquired the possibility of expanding its own sovereignty in the manner dictated by its own will. Thus, the international personality of the earlier State disappears with its extinction. There remains no personality to be succeeded. Therefore, according to this theory, the absorbing State is in no way bound to respect the rights and obligations of the State, which has ceased to exist.

According to this theory, the Successor State acquires sovereignty free from encumbrances created by the predecessor sovereign.

Criticism-

The theory is criticised on the ground that, according to this theory, there is the replacement of sovereignty and not a succession of territory as such, and the new sovereign is not bound by the obligations of the absorbed State. However, such a new sovereign cannot escape from international obligations. International law binds such absorbing States to carry out the international obligations of the absorbed State.

IV. Consequences of State Succession-

State succession has some consequences for the rights and obligations of the succeeding state. Even though, as per Negative theory, the sovereignty of the earlier State extinguishes, and the sovereignty of the absorbing State is replaced, and therefore, all rights and obligations of the extinguishing State are extinguished, this is not true. There remains some obligation to the international community.

We will discuss what rights and obligations of the Predecessor State remain.

1. Effects on treaties-

In fact, there are various types of treaties causing different effects on treaty obligations. According to Oppenheim, “no succession takes place with regard to rights and duties of the extinct State arising from its political treaties”. Thus, political treaties are not binding on succeeding states. Similarly, the obedience of commercial treaties, administrative treaties, localised treaties, etc., depends upon the will and suitability of the succeeding State. However, multilateral treaties are obligatory upon succeeding states because such treaties are entered into by a number of States for the general benefit of all States.

2. Membership of International Organisations-

There comes no question of succession of membership of international organisations. Every new State is required to apply a fresh in order to become a member of such organisations, irrespective of the fact that its predecessor was a member of that organisation. However, after the independence and separation of Pakistan from India, India was allowed to continue its membership of international organisations (UNO etc.) obtained earlier. However, Pakistan was told to obtain membership fresh. Similarly, after the dissolution of the Soviet Union into 12 independent States, the State of Russia was allowed to continue its existing membership. However, the rest of the states which are not already members were to apply afresh for membership.

3. Public Property-

The successor State takes over all the public and property rights of the Predecessor State. All public property of the predecessor state passes to the successor state. Vienna Convention of 1983 makes provision in this respect.

4. Public Debt-

Generally, no State considers itself to remain bound by the debts and liabilities of the Predecessor State. However, where succession occurs peacefully, the States decide how the public debt will be paid. At the time of the partition of Pakistan from India, India had assumed all the debts and financial obligations of British India.

5. Contracts-

There is no specific rule regarding the continuation of contracts entered into by the Predecessor State. A succession of contracts depends upon the discretion of the Successor State.

6. Torts-

The Successor State is not bound to assume tortious liability for un-liquidated damages of the Predeceased State.

7. Laws-

Law in force in the State does not automatically change due to a change in sovereignty. It remains in force till new laws are made by the sovereign.

8. Nationality-

Nationals of the Predecessor State lose their nationality; they assume the nationality of the Successor State.

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[1] राष्ट्र / देष

[2] Art. 2 of Vienna Convention 1983.

[3] समिल करने / जिंकुन घेण्यानेे

[4] एकत्र करण्याने

[5] वेगळे / विलग हान्याने