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CHAPTER 6 _______________________

State Succession

-Lhe rather vague term state succession is used quite


generally to describe the legal consequences resulting from
a change in sovereignty over territory, or, according to the
International Law Commission, means the replacement of
one state by another in the responsibility for the
international relations of territory.
State succession has
1
been recorded throughout history but has occurred most
frequently in the decades following World War II through
decolonization and, more recently, through the
fragmentation of the former Soviet Union (FSU) 2 and of
the Socialist Federal Republic of Yugoslavia. It is
troublesome, however, that as yet there does not exist a
generally accepted body of legal norms governing the
varieties of changes in sovereignty. After more than a
decade of preparatory work by the International Law
Commission, two UN-sponsored conventions saw the light
of day: the Convention on Succession of States in Respect
of Treaties (Vienna, 1978) and the Convention on
Succession of States in Respect
of State Property, Archives
3
and Debts (Vienna, 1983). Neither instrument was in
force at the time of writing.
'The standard work on the subject is still OConnell, State
Succession
in Municipal Law and International Law, 2 vols. (1967).
2
See Blum, UN Membership of the New Yugoslavia:
Continuity
or Break? 86 AJIL 830 at 833 (1992).
3
Text of 1978 convention in 72 AJIL 971 (1978) and of the
1983 instrument in 22 ILM 308
(1983).

State succession may occur in a number of ways, usually


divided into 3 categories: (1) the achievement of independence by
a territory previously under the sovereignty protection, mandate,
trusteeship, or other form of control by another state, or that was
1

in a federal or real union with another state, and also including secession from a
state (Croatia and Slovenia, 1991-92); (2) the loss of the status of a state through
annexation, merger, or the imposition of a protectorate by another state (union of
the two German states); and (3) the change in sovereignty over a territory from
2 to
11 another
Subjectsthrough
of International
one state
cession (see Chapter 14).
In cases of the first category, rights and obligations under treaties have norLaw decided by so-called devolution agreements between the predecessor
mally been
state and the newly independent entity concerning the extent to which the latter
would4 assume rights and duties originally created by treaties for the predecessor
state. In cases of the second category, domestic legislation of the successor state
or premerger agreements between the prospective parties decide the status of both
rights and obligations of each entity. In cases of the third category, the successor
state alone decides the fate of both rights and obligations of the extinct
predecessor entity.
In all three categories, however, rules of international law enter into the picture, regulating the rights and obligations of predecessor and successor in relation
to outside states, to third parties.
Before entering into details, it should be emphasized that the international
personality of a state normally remains unaffected by increases or losses in
territory, with corresponding gains or reductions in population, unless the changes
in question are so profound as to change the states central organization (basic
structure) or involve a loss to the state of the core area in which its
government center is located.
A good example of dramatic growth in size and population is the development of the United States of America from its beginnings in the eighteenth
century to its present extent. Despite an enormous expansion in area and
population, the international legal personality of the United States has remained
unchanged since 1783. Relevant increases in the area of other nations, such as
Romania after 1918 or the Soviet Union after 1938, did not affect their legal
personality in any manner.
What about a shrinkage in the territory of a given state? The standard examples usually cited show that despite often drastic losses, the states remained unaffected in regard to their legal personality: Poland (partitions of 1772 and 1793)
remained unchanged from a legal point of view until 1795; Turkey, despite
losses in 1856, in 1878, in 1911-1913, and as a result of World War I,
remained legally unaffected; and if the Confederacy had succeeded in its
secession plans, the legal identity of the United States would have remained
unchanged.
The dissolution of the Soviet Union and the former Yugoslavia may yet be
followed by the disintegration of other political entities: Canada, India, Pakistan,
Iraq, and several of the successor states of the Soviet Union. The causes of these
possible dissolutions are to be found in ethnic, religious, and historic enmities
and conflicts, mostly related to a revival of nationalism.
part

STATE SUCCESSION

Hugo Grotius developed the basic theory of state succession as a


corollary of the principle in Roman civil law under which an heir
succeeded to the assets, the rights, and also the obligations of a deceased
individual, becoming, as it were, at least in the law, the latters
substitute.
The nature of states as sovereign entities having a legal personality
precludes, of course, a strict application of the Roman rule to
international law. Many modem writers question the existence of true
succession, even though most treatises still hold to the traditional
terminology. Generally, two varieties of state succession are recognized:
(1) universal succession and (2) partial succession.

4Friedmann, 433; Henkin, 675.

Universal Succession

Universal succession is said to occur when one state absorbs, or takes


6 State
Succession
over completely, the international personality
of another
state. 3This event
may be caused by forcible annexation or by the absorption of the extinct
state into a federal structure. On the other hand, if a given state is
somehow divided into a number of separate states, there is also universal
succession, involving this time as many successor states as there are new
entities created.
E
V
A
H
may a state become extinct? On occasion the
international personality of a state has been ended by a voluntary act.
One instance would be the breakup of a federation into separate states,
as in the case of the Republic of Colombia when it separated in 18281830 into three separate states (Ecuador, Venezuela, and New Granada).
One of these, New Granada, reverted to the name of Colombia at a later
date and possibly retained the legal personality of Colombia even after
1830.
M
Again, extinction may come about through merger with another
state: the cases of Texas (union with the United States) and Syria
(temporary merger with Egypt in the United Arab Republic) come to
mind.
E
F
M
Forcible annexation of conquest has been a common
method for the extinction of hitherto independent states. World history is
filled with examples: the Transvaal in 1901 and Korea in 1910 are
favorite illustrations. Later annexations have posed problems in view of
the existence of the League of Nations and subsequently of the United
Nations, both of which prohibited conquest.
R
O
T
E
S
When a states international personality is
extinguished, its international rights and possibly also the obligations also
come to an end. (See Chapter 3: West Rand Central Gold Mining Co.,
Ltd. v. The King.) All treaties and other agreements concluded by the
defunct state with other
countries automatically become null and void, with two possible exceptions: (1)
If the defunct state was a party to a multilateral treaty not hinging on its being a
party, that agreement would still be in effect for the other parties to the treaty;
and (2) If an agreement did create a territorial servitude on the territory of the
defunct state, it would be considered to be still in effect and to bind the
successor state. The rights of the defunct state cease to be enforceable in its
name, and its obligations can no longer be brought against it as a legal person. If
there is a successor state, then the rights of the extinct entity devolve upon it,
and the obligations of the entity may be assumed, if at all, by the successor state.
R
O
S
S
Under the more normal instance of the absorption of
one state by another, the question arises as to the extent to which the successor
state acquires both the rights and the obligations of the defunct state. If third
states have any claims against the latter, the settlement of such obligations is up
to the successor state. The citizens of the defunct state have no right of appeal
under international law against any actions taken by the annexing state, for their
former country has lost its international personality and is no longer a subject of
international law. Any claims by or against such citizens involving their former
government now become domestic questions of the annexing state.
The new sovereign also decides to what extent it will be bound by the
extinct states obligations toward its citizens: any rights possessed by such
individuals under the laws of the extinct state will avail them nothing, for
normally those laws have been set aside and do not exist anymore.
chapter

XTINCTION

BY

OLUNTARY

CT

OW

ERGER

XTINCTION BY

IGHTS AND

IGHTS AND

ORCIBLE

EANS

BLIGATIONS OF A

BLIGATIONS OF THE

UCCESSOR

OTALLY

TATE

XTINCT

TATE

The extinction of the personality of a state results traditionally in an abrogation of all political and military treaties previously concluded between the now
extinct entity and other states. This is true, of course, only in the case of total
extinction; if succession involves only a portion of the original owners territory,
4 11
of International
the latter
is Subjects
still bound
by treaties with other countries because such a states
legal personality continues alive; only those provisions of treaties relating to lost
parts ofLaw
the territory no longer bind the former sovereign.
Despite the absence of applicable rules of law, successor states have
generally been willing to assume contractual obligations of the extinct state with
respect to third states or the citizens of such states. This has been true in the
case of contracts involving concessions such as mining rights and transportation
facilities.
On the other hand, no common practice can be discovered in relation to the
debts contracted by the predecessor state. Debts owed to the citizens of the latter
become domestic questions of the annexing state. In the case of partial succession
of the sort described in the next section, the instrument transferring the areas in
question may regulate such questions. Debts owed to third states or their citizens
may or may not be honored by the successor state. The government of the
United States took over the debts of its member states in 1790, but it refused in
1845 to assume the obligations of the Republic of Texas, although arrangements
were made to pay the sum in question out of the proceeds of the sale of public
land in Texas. Croatia and Slovenia appear to have taken over a portion of the
Yugoslav national debt (1991-1992).
On January 13, 1992, the Ministry of Foreign Affairs of the Russian
Federation informed all foreign missions in Moscow that the Federation
should be considered as a party to all international agreements in force in
place of the USSR. The Federation thereby assumed all treaties that had
been binding on the Soviet Union at the time of the latters demise.
part

Partial Succession

Partial succession occurs when a state assumes sovereignty over portions


of territory formerly belonging to another state; when a new international
personality is created by the secession of a territory from an existing
state; or when a member state of a federation or a confederation obtains
independence. Partial succession poses many complicated problems
centering on the distribution or division of the rights and obligations
somehow attached to the territory involved in the succession.
E
P
P
P
R
Normally there are only two parties involved
in such questions, and, fortunately, experience has taught most states to
specify how they are to be settled between them. Such matters are
usually incorporated in the instrument transferring title to the territory.
On occasion, however, third parties are involved in partial succession,
usually because of their or their citizens claims relating to the
transferred territory.
Unless otherwise agreed on by the states concerned or by some
appropriate international organization, the passing of state property of the
predecessor to the successor state or states takes place without
compensation. This principle applies to both partial or total extinction of
the predecessor state. The property of third states, or the rights and
interests of third states, recognized as such under the laws of the
predecessor state, are not affected by state succession.
Under partial succession, the public property of the predecessor state
located in the successor state normally passes to the latter. When
Czechoslovakia partitioned itself into the Czech Republic and the
Republic of Slovakia, all immovable state property (buildings, etc.) was
allocated to the republic in which it was located. Movable state property,
down to office furniture, was split on a 2-to-l ratio, corresponding to the
FFECTS ON

UBLIC AND

RIVATE

ROPERTY

IGHTS

relative size of the two state populations involved. Similarly state


property located abroad was split on the same ratio: if, say, the Czech
state received an embassy, the Slovak state received title to a cultural
center. Some 20 embassies (in Asia, Africa,
andSuccession
South America)
were
6 State
5
slated to be sold, with the proceeds to be divided. On the other hand, the
Russian Federation claimed title to all foreign property of the former
Soviet Union instead of dividing it with the other fourteen successor
republics. This was justified by Russias assumption of the Soviet Union
debt.
In another instance involving a division of assets, the International
Monetary Fund (IMF) determined in December 1992 that the Socialist
Federal Republic of Yugoslavia had ceased to exist and therefore had
ceased to be a member. It then decided that the successor states of
Bosnia and Herzegowina, Croatia, Macedonia.
chapter

6 State Succession 91
Slovenia,
and
the
Federal
Republic
of
Yugoslavia
(Serbia/Montenegro) were the successors to the assets and
liabilities of the former Yugoslavia in the IMF
Private property rights in territory ceded by one state to
another or annexed by another are not formally affected by the
change. Titles to land, provided they were complete and perfect at
the time of change, are usually protected by the successor state,
unless the latter is of the socialist variety and supports the
nationalization of all land.
chapter

F
D
Debts of the transferred area may or may not be
assumed by the new sovereign; writers have commonly asserted
that at least such debts as have been closely associated with the
development of the transferred territory ought to be assumed by
the successor state. But most successor states have in practice been
reluctant to assume such obligations. On occasion, however, the
successor state has assumed domestic and/or foreign debts. Again,
when it has been shown that a particular debt had been incurred
solely for the benefit of the transferred area, a few successor states
have actually assumed the debt.
An unusual feature of the 1919 peace settlement with
Germany was the acquisition of all German governmental property
in the ceded areas by the successor states and payment for such
property by the successor states to the Allied Reparations
Commission (except for territories ceded to Poland). The successor
states (except for France) also assumed portions of the German
debt, both national and state, proportionate to the area in each
transfer in question.
When part of a state is transferred to another state, the passing
of the state debt (internal) from predecessor to successor normally
is settled by agreement between the parties. Article 37(2) of the
1983 Vienna Convention provides that in the absence of such an
agreement, the predecessors state debt is to pass to the successor
state in an equitable proportion.
On the other hand, when the successor is a newly independent
state (say, an ex-protectorate or an ex-colony), no state debt of the
predecessor state normally passes to the new entity unless an
agreement between the parties provides otherwise in view of the
link between the predecessors state debt and its activities in the
newly independent area. When two or more states unite to form
one successor state, the state debt of the two or more predecessors
passes on to the new entity. When part or parts of a states
territory separate from that legal person and form a state, the state
debt of the predecessor state passes to the successor state on a proportional basis, unless the parties agree otherwise. And finally,
when a state dissolves and ceases to exist and the parts of the
DOMESTIC

AND

OREIGN

EBTS

6 State Succession 91
predecessor states territory form two or more successor states, the
state debt of the dissolved unit passes, normally, in equitable
proportions to the successor states.
Unless otherwise decided between the parties (states) involved,
debts owed to the predecessor state by virtue of its activities in the
territory to which title is being passed become debts owed to the
successor state.
chapter

T
One other aspect of state succession merits brief
examination, in view of the number of controversies it has caused
in international relations.
EFFECTS

ON

REATIES

98 11 Subjects of International
If one party to an international agreement changes its form of
Law government or expands or contracts its geographical boundaries,
the provisions of the treaty in que tion are usually not affected by
such changes, even if the expansion of territo involves the
inclusion of other former states in the one that is a party to the
agreement. Unless the changes suggested the desirability of new
treaties, the pri agreements have generally been regarded as
remaining in full force and effect.
The Russian Federation became solely responsible on
November 23, 1992 for the enormous domestic and foreign
indebtedness of the Soviet Union, after non-Russian republics in
the CIS refused to assume that debt. The total at the ti was
estimated at $60-100 billion. All ex-Soviet components except
the Federati had refused to honor an earlier agreement to
collectively assume the debt. Ru had been scheduled to be
responsible for only 61 percent of the total.
The many questions about state succession with respect to
treaties, raised the emergence of several new countries after
World War II, led to the adoption a UN Conference (Vienna,
1978) of the Vienna Convention on State Succession States in
Respect of Treaties. That document is not in force, however.
The comprehensive coverage of this treaty answers almost all
questio imaginable; yet by its very breadth it exceeds the limits
of discussion possible a general text. But one aspect of the
subject should be kept in mind: the new ' strument covers in
detail the absence of applicability of past treaties conclud by the
original sovereign, not only with respect to former colonial
territories, but also with respect to seceding territories (unless, of
course, the newly independent colony or newly seceded
territory
5
agrees specifically to be bound by treaties in question).
The fate of the treaties concluded by the former Soviet Union
illustrates w is likely to happen in the instance of total extinction.
In the so-called Minsk Dec ration of December 8, 1991, the
Commonwealth of Independent States (CIS) serted that the States
members... undertake to discharge the internation obligations
incumbent
on them under treaties and engagements entered
into by
L
6
t former Union of Soviet Socialist Republics. Since then,
individual ex-Soviet successor states have acceded to a variety of
the multipartite treaties to which the Soviet Union had been a
party. It is not clear at the time of writing whether simiL.
acceptances have been made concerning the vast number of
bilateral agreements made by the Soviet Union with other states. In
the case of the defunct Yugoslavia, successor states have deposited
with the UN Secretariat statements of succession to a large number
of multipartite agreements such as the genocide convention,7 th
human rights covenants, the anti-slavery convention, and so on.
part

chapter

6 State Succession 99

In the case of universal succession, political treaties, such as


alliance, are abrogated at once, as are treaties of commerce,
navigation, and extradition.

Text in 72 AJIL 971 (1978); Keith, Succession to Bilateral Treaties by


Seceding States, 6 AJIL 521 (1967); Dumbauld, Independence under
International
Law, 70 AJIL 425 (1976).
6
7N.Y.T, Dec. 9, 1991, 1.
See 31 ILM 142 (1992). It should be remembered that the CIS is not
a successor state of U.S.S.R. but an association of former republics of the
Soviet Union, a transitional mechanism. Talbot, How to Keep Divorce
from Leading to War, Time, March 2, 1992, 34. Concerning details the
founding and nature of the CIS, consult 31 ILM 142 (1992).
s

In the case of partial succession, political treaties are


abrogated. Other agreements may be terminated after consultation
between a 5successor state and the other party or parties to a given
agreement.
N
I
S
A newly independent state is not bound to maintain
in force treaties applicable to the predecessor state. The newly
independent entity may signify its status as a party to a multilateral
treaty of the predecessor state by notification in writing of
succession/accession. This would not be true, however, if it were
established that application of the given multilateral agreement to
the newly independent state would be incompatible with the object
or purpose of the treaty or would radically change the conditions
for the operation of the treaty. If the latter requires the consent of
its various parties, the newly independent state must obtain such
consent before becoming a party to the treaty.
Normally the successor state concludes a so-called devolution
agreement with the predecessor state concerning which treaties
applicable to the latter shall also apply to the successor state, the
newly independent entity. On the other hand, a number of newly
independent states recently chose to start their international life
with a clean slate as far as the predecessor treaties were
concerned, i.e., they were
unwilling to be bound by any of the
6
agreements in question.
B
T
A bilateral treaty between another state party and the
predecessor state relating to the newly independent state remains in
effect after succession only if the new state and the other state
EWLY NDEPENDENT

ILATERAL

TATES

REATIES

5See Succession of States in Respect of Treaties: German Democratic


Republic, 85 AJIL 539(1991).

6See Friedman, 483, for such an agreement between the United Kingdom and
Nigeria.

100 11 Subjects of International


party expressly agree to that effect or if their conduct indicates that
Law they have so agreed.
part

If two or more states unite and form one successor state,


any treaty in force at the time of succession in respect to any of
the merged entities continues in force in respect to the successor
state unless the latter and the other state party ?>r parties
otherwise agree or if it appears from the treaty in question that its
application to the successor state (merged entity) would be
incompatible with the object or purpose of the treaty. It should be
noted that any treaty continuing in force as to the merged
successor state applies only in respect of the part of the territory of
the successor state in respect of which the treaty was in force at
the date of succession, unless, in the case of a multilateral treaty,
the successor state notifies the other parties to that agreement that
the latter shall apply to all of its territory or if in the case of a
bilateral treaty the successor state and the predecessor state otherwise agree.
R
S
A
P
S
When, after separation of any part of
the territory of a state, the predecessor state continues to exist, any
treaty that at the date of succession was in force in respect of the
predecessor state will continue in force in respect of the latters
remaining territory unless the states concerned otherwise agree or it is established that the treaty
related only to the territory separated from the predecessor
state or if it appears from the treaty that its continued
applicability in respect to the predecessor state would be
incompatibl with the object and purpose of the agreement.
S
S
S
If a servitude (see Chapter 14) exists in
res of a particular territory, state succession does not as
such affect obligations relat ing to the use of that territory
or to restrictions on its use, established by a treatv for the
benefit of any territory of a foreign state, a group of
states, or all states and considered as attaching to the
territory in question. State succession also does not, as
such, affect any rights established by treaty for the benefit
of any territon and relating to the use, or to restrictions on
the use, of any territory of a foreign state, a group of
states, or all states, and considered as attaching to the
territory in question.
C
A
E
S
One of the consequences of the
disappearance of the German Democratic Republic
(GDR/East Germany) and of the Sovie' Union was the
lodgment of claims for compensation or for the return of
MERGER OF STATES

EMAINDER OF A

TATE

TATE

LAIMS

FTER

ARTIAL

UCCESSION AND

GAINST

AN

UCCESSION

ERVITUDES

XTINCT

TATE

chapter

6 State Succession 101

proper seized by the extinct entity. Those demands created


a multitude of problems, n all solved at the time of
writing. In the case of East Germany, an agreement w
reached on May 13, 1992 between the Federal Republic
of Germany
and the Uni ed States concerning American
7
claims. A total of $ 190 million was to cover clai filed by
American individual and corporate nationals.
SUGGESTED READINGS

Loss of Personality, General


Lauterpachts Oppenheim,

I, 153; Moore, I, 385;


Skubiszewski, Polands Western Frontier and the 1970
Treaties, 67 AJIL 23, esp. 24-28 (1973); Buchheit,
Succession: The Legitimacy Self-Determination (1978).
CASES

German Settlers in Poland, P.C.I.J., 1923, Ser. B, No. 6.


D.D. Cement Co. v. Commissioner of Income Tax, India,
Pepsu High Court, June 7, 1954, India Rep. 1955
Pepsu 3, reported in 49 AJIL 572 (1955).
United States v. Prioleau, Great Britain, High Court of
Chancery, 1865, 71 Eng. Rep. 5 (1865).
United States ex rel. Schwarzkopf v. Uhl, U.S. Court of
Appeals, 2nd Cir., 1943, 137 F. (2d 898.
Molefi v. Principal Legal Adviser et al, Lesotho, High Court,
1969, reproduced in 8 ILM 58 (1969); see also the Privy
Council (United Kingdom) Judgment on appeal (Pri
Council Appeal No. 27 of 1969), 9 ILM 879 (1970).
oslavia
On May 22, 1992, Slovenia, Bosnia-Herzegovina, and Croatia
were admitted to membership in the United Nations. Weller,
The International Response to the Dissolution of the Socialist
Federal Republic of Yugoslavia, 86 AJIL 569 (1992); Bosnia
and Herzegovina-Croat- ia: Preliminary Agreement Concerning
the Establishment of a Confederation, 33 ILM 605 (1994);
Bosnia and Herzegovina, Constitution of the Confederation
(March 18, 1994), 33 ILM 740 (1994).
Selected

1994 Problems

Macedonia: Ass. Press dispatches, April 8, 1993; CSMFeb. 17,


1994, 3, 6; id., April 15, 1994, 6, 22; id., May 9, 1994,

7See a detailed analysis in 86 AJIL 795 (1992). Consult also Steiehen, I. G.


Farben Claims E_ German Land, CSM, November 21, 1990, 7.

102 11 Subjects of International


19. Macedonia was admitted to the United Nations on
Law
April 7, 1993.
Estonia: CSM, July 7, 1994, 13; id. July 27, 1994, 4.
Kaliningrad: CSM, April 6, 1994, 23.
Somaliland: CSM, Jan. 6, 1994, 6.
part