state succession (public international law)

STATE SUCCESSION

(Meaning and Concept)

INTRODUCTIONPolitical entities are subject changeChanges have come into fore after World War

2nd

Idea of state succession was introduced by Grotius

A state which replace another state is called SUCCESSOR STATE.

The state which has been replaced is known as ‘parent or predecessor state’.

Definition and meaningOppenheim’s definition of state succession

The Vienna Convention on Succession of States in respect of treaties of 1978 ,Art.2 (1)(a) –definition

Meaning: - substitution of one state by another - Transfer of rights and obligation

Reasons

MergerAnnexationCessionDecolonizationDismembermentWar

Kinds of state successionUniversal State succession• Personality of predecessor completely destroyed• When state breaks into several part and each

part become new state.

Partial State succession• Part of state revolts or after achieving freedom• Part of state ceded to another• State loses its part

Theories of state successionUniversal

theory• Successor

state enjoys all rights & discharge duties of its parent state

Continuity theory

• Succession is substitution plus continuation

Negative theory

• Successor state does not succeed personality of predeceased state

Law of state successionBased upon EQUITY, REASON ,& JUSTICE.UNO’s view for codification of law relating to

state succession.Recommendation by International law

commission in the year 1949 for codificationFormation of convention in the year 1978.Vienna convention in the year 1983Law is still under consideration of UNO.

Consequences of state successionTreaties Membership of international organizationPublic propertyState archivesPublic debtContracts TortsLawsNationalityPrivate rights.

Rights and duties arising out of state successionPolitical Rights And Duties: Succeeding State

is not bound by the political treaties of the former state such as treaties of peace and neutrality.

Local Rights And Duties: A genuine succession takes place regarding this i.e. the succeeding state is bound to observe duties concerning land, rivers, railways, roads etc

German Settlers In Poland It was held that private rights do not end by the

change of sovereignty.

Rights and duties arising out of state succession(continued)State Property Article 11 of Vienna Convention On State Property,

Archieves And Debts, 1983, says that property will pass to other state without compensation

Article 12 says that property, rights and interest owned by a third state is not affected. (Rights of third states are not affected by succession)

Article 13 tells about the duty of the predecessor state to take all measures to prevent damage and destruction of the state property which is to be passed to the succeeding sate.

Rights and duties arising out of state succession(continued)Contracts : Predecessor state entered into

contract, now, whether the successor state is bound by that or not.

West Rand Central Gold Mining Co. Ltd.v/s KingSucceeding state was entitled to decide whether it will accept the financial obligation of the former state or not if it won’t accept then it won’t be liable.

Rights and duties arising out of state succession(continued)Concessionary Contracts : Like Digging of

mines, laying of the railways etc. They are of local nature and that is why they are binding on the succeeding state.

Laws : Succeeding state will have to decide whether the laws of the predecessor state will continue or not.

Nationality : Nationality of the new state is gained and nationality of the predecessor state is lost.

Treaty RelationsVienna convention on Succession of States in respect of

treaties,1978 entered into force-1996A.15-treaties of the predecessor state are to be in force in

relation to the territory thus passingTreaties of the successor state are to be in force in respect

of the territory thus passing, unless it appears from the treaty or is otherwise established that the application of the treaty to that territory would be incompatible with the object and purpose of the treaty or would radically change the conditions for its operations.

Contractual ObligationsThe relevant treaties will continue in force.‘Free choice’ doctrineDamages for unliquidated damages won’t

existIf there is any unjust enrichment to the

predecessor or successor state the right and corresponding obligations may survive.

Public DebtsTaking the burden with the benefitsNo obligation accrues for a successor state in

respect of a public debt incurred for a purpose hostile to the successor state or for the benefit of some other state.

If a country is divided in to many countries the debt become divided among the successors.

Ottoman Debt Arbitration, 1925.Proportionate benefit

DebtsVienna Convention on Succession of States in

Respect of State Property, Archives and Debts, 1983 - NOT IN FORCE

Usually all disputes has to be settled by agreements.the successor State acquires the whole property of

the predecessor State or States.Equitable proportion is to pass to the successor

state.A.37 -if the successor state is a newly independent

state, no debt will pass unless the agreement otherwise agrees.

Property And ArchivesThose States should receive not only the whole

property of the predecessor State situated in the territory of the new State, but also property having belonged to the territory of the successor State and situated outside it and having become property of the predecessor State during the period of dependence.

If no agreement was concluded, in the case of cession the successor State should receive the part of the archives necessary for an efficient administration of the acquired territory, as well all the documents relating fully or mostly to the ceded territory.

Succession regarding the membership of united nationsNo succession regarding that.By Fulfilling The Requirements of U.N. a state

may become a member of U.N.E.g. India – Pakistan (at the time of Partition)

HONG KONG

Conclusion Successor State enjoys all rights of its parent

State.It also discharge all duties.State succession can either total or partial Need of codified law.

Thank You!

Sourabh Ubale(LL.M. International Law- Ist year,

Department of Law, University of Pune)(2012-14)