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Week 10 - State Succession

Branch of IL dealing legal consequences of change of sovereignty over territory
• concerns the rights & duties of states coming into existence or ceasing to exist

Creates numerous problems:

• treaty obligations?
• disposition of public debt and property?
• membership in international organizations?
• nationality of citizens?

Two crucial questions:
• does state concerned claim to be new state, or continuation of previous state?
• have claims been accepted by other states?
Issue of burning importance re decolonization and end of Cold War

uti possidetis principle: rule to protect territorial integrity under existing former administrative boundaries

Doctrine of State Continuity

Changes in govt (whether by domestically legal/ illegal/ unconstitutional/ violent means) do not affect continued legal personality of state re intl legal rights & obligations

Where change in govt is brought about through intl illegality:
• the intl legal personality of the state is presumed
• but insofar as is possible, obligations incurred by the govt are transferred to state responsiblefor the intl illegal change in govt, i.e. Germany held responsible for Austria's debts incurred 1938-45.

Types of Succession

Separation
• total dismemberment/disappearance of predecessor state—Yugoslavia
A becomes B, C, D, E

Secession
• part of predecessor state secedes, preserving predecessor & giving birth to new state—Sweden
from Norway
A becomes A and B

Decolonization
• termination of foreign governance over territory giving rise to (re)emergence of (new)
state—Commonwealth
A and (A) becomes A and B

Merger of Separate States
• two predecessor states give rise to one new state—United Arab Republic (Syria, Egypt)
A and B becomes C

Absorption
• one state is totally absorbed by another pre-existing state—GDR by FRG
A and B becomes A

Annexation/Cession of Territory
• no state is created or destroyed
A and B remains A and B

Succession to Treaty Rights & Obligations

• unsettled in law
• 18th & 19th C rise of ‘clean slate' doctrine
• gradual shift pre-WWII – practice favoured approach whereby benefits & burdens of (UK
imperial) treaties were passed to new states (former British colonies)
• rules have been unsettled since decolonisation period
• this is context for return of customary "clean slate doctrine"

Clean Slate Doctrine

• where a new state comes into being as result of succession, it is generally not bound by treaties
binding its predecessor
• nor does it automatically acquire rights under such treaties
• corollary is that parties are not bound to accept the new state
• but new state may acquire rights & obligations through its conduct or the conduct of 3rd parties
evidencing an intention to be bound by the treaty
• some NIS have asserted the right to affirm or disavow treaty rights & obligations at their
discretion
• effect is to force treaty relations in absence of privity – highly resisted by major powers

Vienna Convention on Succession of States In Respect of Treaties (1978):
• CIF 1996, only 17 ratifications (incl FSU, Yugoslavia)
• as of Sept May 1999 20 signatories, 15 valid ratifications
• attempts to codify rules – does not reflect customary law
• former colonies are presumed to be bound (34)
• NIS are presumed not to be bound, but have choice to accede (16, 17)

Exceptions to Clean Slate Doctrine

Treaties which evidence customary law:
• technically, states remain bound by customary law irrespective of treaty

Succession does not affect:
• treaties creating rights & obligations relating to the use or enjoyment of territory (rights of
transit, navigation, port facilities, demilitarised zones, fishing rights), particularly those for the
benefit of 3rd parties
• ambit of this exception is unsettled – state practice is not uniform
VCSSRT Art.12

Boundary Treaties
• treaties that establish intl boundaries survive changes & are binding on successors

Multilateral Treaties
• so-called ‘law-making treaties' are sometimes said to be open to unilateral accession by
successor states
• probably depends on the accession terms of the treaty & consent of parties
• state practice shows that, generally, terms allow for accession or 3rd parties' consent

Succession & Public Property

• title to public property goes with the territory, but local property outside of successor territory
may remain vested in predecessor (if it continues to exist) – see Vienna Convention on
Succession of States in Respect of State Property (1983) (14)

Succession & Public Debt

• no clear rule & state practice is not uniform.

Some trends:
• if predecessor is wholly subsumed by existing state, the latter is liable for all of the
predecessor's debts
• in the case of secession, local debts pass with successor state
• general obligation to negotiate on equitable basis (VCSSRSP)