SUCCESSION OF

STATES
Meaning of State succession

■ Oppenheim defines succession as “..one or more international persons take place

of another international person, in consequence of certain changes in the latter’s
condition.”
■ State succession occurs when a State ceases to exist or a new State is formed
within the territory of an existing State or a territory is transferred from one State to
another State. When a succession situation arises, the point of chief legal interest is
the effect on international rights and obligations of the States concerned.
■ Misnomer- Poulose- Municipal law analogy- general succession and full juridical
substitution
KINDS OF SUCCESSION

■ Universal succession happens when the legal identity of a community is completely

destroyed. Happens when one State is completely absorbed into another State
either through subjugation or voluntary merger OR a State breaks into several parts
and each part becomes a separate international person or is annexed by a
surrounding international person.
■ Partial succession happens when territory is lost but personality and legal
responsibility remain unimpaired. Partial succession occurs when a part of a State,
through a revolution or agreement, becomes a separate international person
(Example, Bangladesh) OR a part of a State is ceded to another State OR when a
sovereign State loses a part of its independence by joining a federal State or
accepting suzerainty of another State or becoming a protectorate of another State.
PRINCIPLE OF CONTINUITY OF STATES

The change in Government of a State does not affect the legal personality of the State.
The new Government succeeds to the rights and obligations of the predecessor
government. This is necessary in the common interests of the international community.
Tinoco Arbitration case-
In January 1917, Government of Costa Rica was overthrown by Federico Tinoco. Tinoco-
Constitution, elections- governed for 2 years after which he left the country. His Government
fell. With a provisional Government under Barquero, the old constitution was restored and
elections were held.
The restored govt passed a law of Nullities under which it invalidated all contracts between
the Executive power and private persons, made with or without approval of the Legislature
during the Tinoco Government. Also nullified a Legislative decree issued by the Tinoco Govt
authorising the issue of currency notes. As a result, certain debts owed to Royal Bank of
Canada (a Br Corporation) and concessions extended to Central Costa Rica Petroleum
Company (Br Corporation) were annulled. This was in dispute.
Govt of Costa Rica denied its liability for acts by the Tinoco Govt and maintained that the Law
of Nullities was a legitimate exercise of its Legislative power.
Held- Withdrawal of concession not invalid because it the concession was invalid under the
1917 Constitution. However, obligations of a restored Govt for the acts of the usurping de
facto govt cannot be prejudiced by a constitution which, though restored to life, was not in
force when the obligations arose. Changes in govt or internal policy of a State do not, as a
rule, affect its position in IL. Though the Govt changes, the Nation remains with its rights and
obligations unimpaired.
RIGHTS AND DUTIES ARISING OUT OF STATE
SUCCESSION
■ Political rights and duties: No succession. The succeeding State is not bound by the
political treaties of the former State. BY political treaties, we mean treaties of peace
or neutrality.
When a State ceases to exist, it amounts to extinction of personality of that
State. Due to such extinction of personality, it loses full and independent power of
action over the subject matter of the treaty. Therefore, the treaty must necessarily lapse.
Terlinden v Ames- Extradition treaty between Prussia and America in 1882- Could it be
given effect after the incorporation of Prussia into the German Empire- Yes, because in
this case the German Constitution left sufficient independent power and sovereignty to
States comprising the confederation to enable them to act on these treaties.
■ Local rights and duties- A genuine succession takes place in respect of local rights and
duties.
■ Fiscal Property and Public Debts- Fiscal property- succession takes place
Public debts- Jurists are of the view that it depends on the discretion of the
succeeding international person whether to pay the public debts of the former State. Part IV
of the Vienna Convention on State Property, Archives, and Debts 1983 deals with this
matter.
A.36 of the Convention provides that succession of a State does not as such affect rights
and obligations of creditors. However, where the successor State is a newly independent
State, no State debts shall pass to the new State unless otherwise agreed. Any such
agreement should not infringe the principle of permanent sovereignty of every people over
its wealth and natural resources nor shall the implementation endanger economic equilibria
of the newly independent State (A.38).
A.40- Separation- part of the State debt should pass to the successor State in equitable
proportion taking into account property, rights, interest passing on to the successor State.
The Convention was signed in 1983-only 7 States have ratified it so far. To become binding,
at least 15 States have to ratify it.
■ Contracts- Most jurists view that the succeeding State should be bound by the contracts
of it predecessor.
However, in West Rand Central Gold Mining Co. Ltd v King, the King’s bench of England held
in reverse and ruled that the succeeding State is entitled to decide whether it would accept
the financial obligations of the former State. In the absence of any such express consent or
understanding, the succeeding State would not be bound.
Registered co. in England- engaged in goldmining in Transvaal- Two parcels containing gold
were seized by the South African Republic. Law required return under a contract. War broke
out between SAR and Britain and the former was conquered by the latter. Plantiff sought
return of gold parcels. Held that a conquering State is not liable to fulfil private contractual
obligations of the conquered State. As a matter of fact and practice, it is at the discretion of
the succeeding State to deny or accept claims against the succeeded State.
■ Concessionary contracts- Succeeding States may or may not be bound depending upon
the facts and circumstances of each concessionary contract.
In Premchibar v UoI, the GoI rejected an application of a former Portuguese citizen
for extension of period of licence granted to him by the then Portuguese Govt. SC held that in
such a case, the residents of the territories did not carry with them the rights which they
possessed as subjects of the ex-sovereign, and that as subjects of the new sovereign, they
possessed only such rights as are granted or recognised by the new sovereign. Whether or
not the new sovereign has undertaken liabilities of the previous sovereign is a question of
fact depending upon the discretion of the new sovereign.
■ Civil law continues until changed by the succeeding State.
■ Nationality- Nationals of the State lost their nationalist and become nationals of the new
international person. However, generally, they are given a certain period to decide.
■ Unliquidated damages for tort- No succession.
Robert E Brown’s claim- Robert Brown was an American citizen who went to
South Africa and started digging gold mines. When gold mines were brought under
State control, Robert Brown’s claim for a licence was rejected. Later, the Govt withdrew
its order of bringing mines under State control. Brown filed a suit for recovery of
compensation. Case could not proceed because Great Br conquered SAf. When referred
to Arbitration, the arbitrators held that though Robert Brown had a valid claim against
SAf, the peace agreement under which SAf surrendered before Great Britain did not
contain any clause under which Gr Britain undertook liability for torts committed by
South Africa. Hence, Br was not liable to pay.
■ Succession of State Property and archives- Vienna Convention on State Property,
Archives, Debts 1983- A 11 – Unless otherwise agreed, State property passes
without compensation. A.12 notes that Property, rights, interests owned by a third
State should not be affected by the succession of States. A. 13 requires the
predecessor State to take all measures to prevent damage or destruction to State
property which passes to the predecessor State.
A.25 provides that passing of archives of the predecessor State to the newly
independent State should be determined in a manner that ‘each of those States can
benefit as widely and equitably as possible” from those archives. Bilateral agreements
between States should not infringe the rights of peoples of those States to
development, information about their history, and to their cultural heritage.
■ Succession with respect to Treaties- Vienna Convention on Succession of States in
respect of Treaties-
A.1- scope of the Convention- applies to the effects of a succession of states in respect of
treaties between States.
A.16 incorporates the ‘Clean Slate’ rule- Newly independent States are unencumbered by
the obligations and commitments of the predecessor State. However the rule does not
apply to boundary regimes (A.11); i.e. boundaries established by a treaty and obligations
and rights relating to a boundary regime established by a treaty would continue to subsist.
A.15- where a part of a territory of one State becomes the part of another State, the
treaties of the predecessor State cease to be in force with respect to that part from the
date of succession. Also, treaties of the successor State would apply unless such
extension of application would be incompatible with the object and purposes of the treaty
or would radically alter the conditions for its operation.
A.24- Any bilateral treaty would be in force with respect to the new State and other party
if expressly or impliedly so agreed
A.17- Multilareral treaties- a Newly established State may establish its status as a part
of a multilateral treaty by notification except if such status would be incompatible with
the object and purposes of the treaty or would radically alter the conditions for its
operation.
A.31- Where two or more States unite to form a successor State, treaties in force in any
of them continue to apply unless otherwise agreed or such extension of application
would be incompatible with the object and purposes of the treaty or would radically alter
the conditions for its operation.
A. 34- Succession in case of separation of parts of a State- Treaties continue unless
otherwise agreed or such extension of application would be incompatible with the
object and purposes of the treaty or would radically alter the conditions for its operation.
■ Succession regarding membership of the UN- UNGA prescribes that when a State
becomes an international person, it can become a member of the UN only after it is
admitted in accordance with provisions of the Charter- apply, 2/3rds majority of
UNGA members vote in favour on the recommendation of the UNSC.
■ Succession to other international organisations- Depends on the constituent
agreement of these organisations