Public International Law

Chapter Eight
State Succession

Adigrat University, 2016

School of Law
Mussie M. (LL.B, LL.M)
 Introduction
 The term ‘state succession’ is used to describe that branch of int’l
law which deals with the legal consequences of a change of
sovereignty over territory.
 When one state acquires territory from another, which of the rights
and obligations of the ‘predecessor state’ pass to the ‘successor
state’?
 What happens to existing bilateral and multilateral treaties, to
membership of int’l organizations, to international claims, to the
nationality of the affected persons, to public and private property, to
contractual rights, to national archives and to the national debt?
 This problem is complicated because it can arise in several different
forms. A state may lose part of its territory, or it may lose all of it.
Similarly, the loss of territory may result in the enlargement of one or
more existing states, or it may result in the creation of one or more
new states.
 Introduction
 This area become important, in the wake of decolonization,
dissolution, unification and secession of states—Germany and
Yemeni Unification, Dissolution of Yugoslavia and Soviet
Union, and Secession of Eritrea from Ethiopia, East Timor
from Indonesia and the recent disputed Crimean case.
 We have two relevant treaties to state succession:
 The 1978 Vienna Convention on State Succession in Respect
of Treaties, was entered into force on 6 November 1996
following the ratification of 22 states, including Ethiopia,
Egypt, Bosnia, Croatia, Czech Republic, Iraq, Estonia, Ukraine
and Tunisia.
 The 1983 Vienna Convention on State Succession in Respect
of State Property, Archives and Debts, not yet entered into
force, and only 7 states have been ratified, but needs 15.
 Parties to the 1983 Convention are Algeria, Argentina, Egypt,
Montenegro, Niger, Peru, Serbia
 Treaties dealing with rights over territory

 Treaties which deal with rights over territory, succession to

rights and obligations always occurs.
 Such treaties ‘run with the land’ and are unaffected by
changes of sovereignty over the territory.
 If a treaty delimits a boundary between two states, and if
the territory on one side of the boundary is acquired by a
third state, the third state is bound by the boundary treaty.
 The rule of automatic succession to boundary treaties is
part of a wider principle that a state acquiring territory
automatically succeeds to the boundaries of that territory,
whether the boundaries are fixed by a treaty or whether
they are fixed by the application of rules of customary law
concerning title to territory and acquisition of territory.
 Treaties dealing with rights over territory
• One consequence of this rule is that newly independent states
inherited boundaries drawn by the former colonial powers;
• African States, for example, inherited the Colonial Boundary
Treaties, despite the colonial boundaries were often unnatural,
disregarding ethnic divisions and cutting through areas which
form a natural economic unit.
• In 1964, the OAU adopted a resolution which declared that ‘all
member states pledge themselves to respect the borders
existing on their achievement of national independence’.
• This resolution reflects the so-called uti possidetis principle,
which originally developed in South America in connection with
the independence of states from Spanish and Portuguese rule
to protect territorial integrity under the existing former
administrative boundaries.
• Ex, ICJ Decision on Border Dispute Mali vs. Burkina Faso
 Other types of treaties
• With respect to other types of treaties, the rules vary according to
the nature of the territorial change which has occurred.—Secession,
Unification or Dissolution.
The principle of ‘moving treaty boundaries’
• When a state loses territory, it loses its rights and obligations under
treaties, in so far as those treaties used to apply to the lost territory.
• Example, Ethiopia lost its rights and obligations with respect to the
Red Sea, when Eritrea seceded from it.
• When an existing state acquires territory, it does not succeed to the
predecessor state’s treaties; but its own treaties normally become
applicable to that territory.
• For instance, there are many decisions by French and Belgian courts
holding that French treaties applied to Alsace and Lorraine after they
were ceded to France in 1919. This rule is codified by Article 15 of
the 1978 Vienna Convention.
• The 1955 Eritrean Federation with Ethiopia had similar effect.
 Other types of treaties
 The above rules are reflected in the so-called principle of ‘moving
treaty boundaries’ which is thought to apply in the case when an
existing state transfers sovereignty over a part of its territory to
another state.
 It means that the treaties concluded by the predecessor state are
no longer applicable to that territory, while the treaties of the
successor state automatically apply to it.
 This rule of the law of state succession reflects the law of treaties
and knows only an exception if the application of a particular treaty
to a certain territory is incompatible with the object and purpose of
the treaty.
 The rule, however, is controversial because it may be too restrictive
to deal with cases in which one state is completely extinguished by
fusion with another state, a view particularly advanced by Germany
in the discussions on the 1978 Convention with the possible
eventual reunification of the two German states in mind.
 Other types of treaties
Decolonization and New States
 As regards new states which have come into being through decolonization,
the 1978 Vienna Convention lays down the following rules:
1) A new state can succeed to a multilateral treaty, to which the
predecessor state was a party, by notifying the depositary that it regards
itself as succeeding to the treaty.
 There are some exceptions to this rule; for instance, a new state cannot
succeed to a multilateral treaty if that would be incompatible with the
intentions of the parties to the treaty. A new state is under no obligation
to succeed to a multilateral treaty if it does not want to do so.
1) A new state succeeds to a bilateral treaty, which the predecessor state
made with another state, only if that other state and the new state both
agree.
 However, agreement can be inferred from conduct; for instance, if both
sides claim rights, or grant rights to one another, on the basis of the treaty,
they will be estopped from denying that succession has occurred. Such
implied agreements often occur, because both sides often find that it is in
their mutual interests to continue to apply treaties made by the
predecessor state.
 Other types of treaties
 These rules apply only if the new state was formerly a
dependent territory (for example, a colony) of the
predecessor state.
 A new state formed by secession from the metropolitan
(that is, non-‘colonial’) territory of the predecessor
state, or by the disintegration of the predecessor state’s
metropolitan territory into two or more new states,
succeeds automatically to most of the predecessor
state’s treaties.
 When a new state is formed by the merger of two or
more existing states, treaties made by the predecessor
states continue to apply to the territory to which they
applied before the merger, subject to certain
exceptions.
 Other types of treaties
• Under Articles 17 and 24 of the 1978, a new state is under
no obligation to succeed to a treaty if it does not want to
do so;
• It can start life with a ‘clean slate’.
• The ‘clean slate’ doctrine was well established in
customary international law before 1945.
• Developments after 1945 cast some doubt on the ‘clean
slate’ doctrine, because some of the states which became
independent after 1945 seemed to accept that they
succeeded automatically to treaties made by their
predecessor states.
• However, it is submitted that this practice of automatic
succession was insufficient to destroy the ‘clean slate’
doctrine.→→→ continue
 Other types of treaties
Because:
1) Only some of the states which became independent
after 1945 followed this practice, while others followed
the ‘clean slate’ doctrine;
2) Some of the states which followed the practice of
automatic succession applied it to only some of the
treaties made by their predecessors, and not to others;
3) The states which followed the practice of automatic
succession appear to have done so because they found
it convenient, not because they considered themselves
obliged to do so.
• By reaffirming the ‘clean slate’ doctrine, Articles 17 and
24 of the Vienna Convention 1978 are therefore probably
in accordance with int’l customary law.
 Recent practice

Secession—Baltic states
The Baltic states (Estonia, Latvia and Lithuania) that had been
annexed by the Soviet Union in 1940 declared their independence in
1990 and 1991. A number of states recognized their independence,
including the Soviet Union on 6 September 1991, and they were
admitted to the United Nations. Whether the Baltic states may be
regarded as new independent states in the sense of the 1978
Convention is unclear because the Convention fails to provide a
definition of ‘dependent territories’. States take different positions
on whether the Baltic States should be recognized as new states
following their independence from the Soviet Union, as well as on
the issue of whether this is a case of the ‘dismemberment’ of a state
or a case of ‘secession’. The Baltic states themselves do not regard
themselves as successor states to the USSR and have refused to be
bound by any doctrine of treaty succession to bilateral or multilateral
treaties concluded by the former Soviet Union.
 Recent practice
Dismemberment—Yugoslavia
• The case of Yugoslavia is also a complex one. The
independence declared by Slovenia and Croatia on 25 June
1991 (the implementation of these declarations was later
postponed until 8 October 1991) as the first units of former
Yugoslavia, was recognized by the European Union and a
number of other states in January 1992, followed by the
recognition of Bosnia Herzegovina on 7 April 1992. On 27 April
1992, Serbia and Montenegro set up the Federal Republic of
Yugoslavia with the explicit claim of continuing the former
Socialist Federal Republic of Yugoslavia. On 1 May 1992. the
European Union expressed its willingness to recognize
Macedonia as an independent state under a name acceptable
to all parties (thereby taking into consideration the objections
raised by Greece)
 Recent practice
• Soon thereafter, on 22 May 1992, the new republics of Slovenia,
Bosnia-Herzegovina and Croatia were admitted as members of the
UN. The SC, however, denied the claim of the Federal Republic of
Yugoslavia (Serbia and Montenegro) to automatically succeed to the
membership of former Yugoslavia and required it to make a new
application for admission because former Yugoslavia had ceased to
exist. Much of the following dispute in New York had to do with the
right of whom to raise which flag in front of the UN building. The
same negative attitude towards Serbia’s and Montenegro’s claim to
continuity was adopted by the Arbitration Commission set up within
the framework of the Conference on Yugoslavia. The only major
states willing to recognize the claim of the Federal Republic of
Yugoslavia were Russia and China. In the GA Kenya, Swaziland,
Tanzania, Zimbabwe, Zambia and Yugoslavia voted against the
recommendation of the Security Council. Moreover, the practice of
the successor states to former Yugoslavia with regard to
international treaties has been rather inconsistent.
 Recent practice
Unification—Germany
The unification of Germany on 3 October 1990 is an almost
unique case. The procedure adopted under Article 23 of the
Constitution of the Federal Republic of Germany (West
Germany) provided for the accession of the German
Democratic Republic (East Germany, which ceased to exist)
while retaining the identity and continuity of the Federal
Republic. The alternative option under Article 146 of the
Grundgesetz to adopt a new constitution was considered
unfeasible—a view shared by the Commission of the
European Community—because of the problems that might
have arisen concerning the question of whether the united
Germany would then have to be seen as a new international
legal personality.
 Recent practice
• From the German point of view, succession took place
on the basis of the ‘moving treaty boundaries’ rule,
although East Germany was an independent subject
of international law (having a sui generis character as
a state, as emphasized by the Federal Republic) and
the unification involved the complete incorporation of
one state into another state, instead of the transfer of
a part of state territory. But the principle of ‘moving
treaty boundaries’ was not really fully applied in the
process. In practice, negotiations with all treaty
partners of the former German Democratic Republic
were held concerning the fate of treaties that had
been concluded by East Germany.
 Recent practice
• The continuation of membership in international
organizations did not raise any special problems in
the case of the United Nations, except for the refusal
of the united Germany to pay for the outstanding
contributions of East Germany to two peacekeeping
operations in the Middle East (UNDOF and UNIFIL).
The UN argued that Germany was liable to pay for
the debts of the predecessor state to the extent that
it had inherited property rights and interests. From
the date of unification, in the United Nations the
Federal Republic of Germany, to which the German
Democratic Republic had acceded, simply acted
under the designation ‘Germany’.
 Recent practice
• More complications became apparent in other
international organizations particularly with regard to the
European Community. While the Community in principle
accepted the ‘moving treaty boundary’ rule, meaning that
the territory of the Community was enlarged and the
territorial scope of the application of Community law thus
extended to former East Germany, it did not accept that all
treaties concluded by East Germany had automatically
been terminated. Moreover, the Community was in a
position to argue that it had to be involved in negotiations
on East German treaties, at least where exclusive
competences had been transferred to Community organs.
The alternative would have been a very complicated and
time-consuming admission and amendment procedure
concerning the European Community treaties.
 International claims

• International claims for compensation for illegal acts are regarded

as being intensely ‘personal’, and no succession occurs to the
rights of the claimant state or to the obligations of the defendant
state.
• The claims are unaffected by expansion or contraction of the
claimant state or of the defendant state; new states commence
with a ‘clean slate’; and extinction of either the claimant state or
the defendant state results in extinction of the claim.
• This last proposition is exemplified by Brown’s claim. Brown, a US
citizen, suffered a denial of justice in the South African Republic
in 1895, but, before the claim was settled, the Boer War broke
out and the Republic was annexed by the United Kingdom. The
US presented a claim against the United Kingdom, but the
arbitrator held that the United Kingdom had not succeeded to
the South African Republic’s liabilities for international claims.
 Nationality

 It is sometimes said that a change of sovereignty over

territory means that the subjects of the predecessor state,
who inhabit the territory, automatically lose their old
nationality and acquire the nationality of the successor state.
 But what is meant by the ‘inhabitants’ of a territory? Does
birth on the territory suffice, or is residence to be taken as the
criterion? Or are both birth and residence necessary? Or are
they alternatives? If residence is taken into account, what are
the critical dates or periods of time for determining whether
someone is a resident?
 In practice, such problems can be regulated only by treaties or
by municipal legislation. Treaties sometimes allow the
individuals concerned to choose whether they want to retain
their old nationality or acquire the nationality of the successor
state.
 Nationality
 It must be admitted, however, that much of the area is unclear.
In 1993 therefore, the International Law Commission decided
to include on its agenda the topic of state succession and its
impact on the nationality of natural and legal persons.
 The preliminary conclusions of a working group submitted in
1995 start from the premise that, in situations resulting from
state succession, every person whose nationality might be
affected by the change in the international status of the
territory has a right to nationality and that states have the
obligation to prevent statelessness, as the most serious
potential consequence of state succession.
 Other potential detrimental effects considered are dual
nationality, the separation of families as a result of the
attribution of different nationalities to their members, military
service obligations, pensions and the right of residence.
 Public property

• When a state acquires all the territory of another

state, it succeeds to all the public property of that
state (that is, all property belonging to the state, as
distinct from property belonging to its nationals or
inhabitants), wherever that property may be situated.
• On the other hand, if a state merely loses some of its
territory, the successor state succeeds to much less of
the predecessor’s public property.
• Most of the public property situated in territory
retained by the predecessor or state, or in third states,
continues to belong to the predecessor state, while
most of the public property situated in the transferred
territory passes to the successor state.
 Private property

 Private property rights do not lapse automatically when

territory is transferred. If the successor state subsequently
wishes to expropriate privately owned property in the
territory which it has acquired, the extent of its power to
do so depends on the nationality of the owner.
 If the owner has (or has acquired) the nationality of the
successor state, the successor state’s right to expropriate
his property is unlimited under customary international law
(although it may be limited by treaties on human rights).
 On the other hand, if the owner is a national of the
predecessor state or of a third state, the successor state
must comply with the minimum international standard for
the treatment of aliens; expropriation must be for a public
purpose and must be accompanied by compensation.
 Private property
 Such, at any rate, are the traditional rules accepted by Western
countries. Most 3rd World countries, however, reject these rules.
Even when they were prepared to accept that the ‘Western’
rules are applicable to investments made in newly independent
countries after independence, they maintained that different
considerations apply to investments made before independence,
at a time when those countries were unable to protect their
own interests. Such investments, they argued, were often made
on unequal terms and amounted to a form of colonialist
exploitation. Some Western writers have tried to counter this
point by suggesting that the rule requiring compensation in the
event of expropriation is designed to prevent unjust enrichment,
and that it is therefore logical, in certain cases, to reduce the
amount of compensation payable for the act of expropriation, in
order to take account of the extent to which the expropriated
foreigner has unjustly enriched himself in the past.
 Private property
• Unfortunately words like ‘unjust enrichment’ and
‘exploitation’ are so subjective that there are bound to be
constant disputes about the application of a rule drafted
in such terms; enrichment which seems just to one party
will seem unjust to the other.
• And Western investors are hardly likely to make new
investments in newly independent countries if they feel
that those countries have enriched themselves unjustly at
the expense of old investments.
• It is therefore questionable whether a relaxation of the
traditional rules would really be in the long-term interests
of the newly independent countries, and recent
developments in foreign investment have shown that this
is indeed true.
 Contractual rights

 Even before the modern era of decolonization, some

authorities doubted whether a successor state
succeeded to the contractual obligations of the
predecessor state.
 For instance, in West Rand Central Gold Mining Co. v.
The King, the English High Court held that the Crown
did not succeed to the contractual liabilities of the
South African Republic after it had been annexed by
the United Kingdom.
 This case has been criticized, and it was not followed
by the PCIJ in the German Settlers case.
 It is sometimes said that the successor state cannot
logically be bound by a contract to which it is not a
party. But, if the alien has benefited the territory by
spending money and effort in performing his contract,
it is only fair that a state acquiring sovereignty over
that territory should allow him to reap the rewards of
his investment.
 Contractual rights
 On this analysis, the successor state’s liability is probably
not contractual but quasi-contractual—a term used to
describe a situation where there is no contract, but
where the law requires the parties to behave as if there
were a contract, in order to prevent unjust enrichment.
 It does not matter much whether the successor state’s
liability is regarded as contractual or as quasi-
contractual, because the results are the same in both
cases; either the successor state must allow the alien to
obtain the benefits due to him under the original
contract; or
 If it wishes to deprive him of some or all of those
benefits, it must compensate him for expropriating his
rights.
 Contractual rights
 The problem of contractual rights has arisen chiefly in
connection with concessions and the national debt.
 A concession is a right granted by a state to a company or
individual to operate an undertaking on special terms
defined in an agreement between the state and the
concessionaire;
 The undertaking usually consists of extracting oil or other
minerals, or of providing a public utility (supplying gas,
water, or electricity, running a canal or railway, and so on).
 The concessionaire’s rights are semi-proprietorial, semi-
contractual. Practice is not entirely consistent, but the
better view is that a successor state must pay
compensation if it revokes a concession granted by the
predecessor state.
 Contractual rights
 The problems which arise in connection with the national debt are more
complex, and can be discussed only in outline here.
 If state A annexes the whole of state B’s territory, it succeeds to the
obligations which state B owed to foreign creditors in respect of state B’s
national debt. If state B loses only part of its territory, it is right that the
successor state or states should take over part of B’s debt, otherwise B,
with reduced territory and economic resources, might be unable to meet
its debts.
 For example, when British colonies became independent, they were made
liable for the debts raised by the local colonial administration, but not for
any part of the British national debt (even while they were colonies they
did not contribute towards the cost of the British national debt). However,
when the Irish Free State became independent in 1922, it took over part
of the British national debt; otherwise independence would have relieved
taxpayers in the Irish Free State of their previous responsibility for paying
interest on the national debt, and would have increased the burdens
falling on taxpayers in the remaining parts of the United Kingdom.
 Contractual rights
• Similarly, if state B loses all its territory as a result of being
dismembered by several other states, it is only fair that
responsibility for state B’s debt should be split up among the
successor states. The difficulty in these last two cases is deciding
what proportion of the debt should be borne by each of the states
concerned; in practice this problem can only be settled by treaty.
• The successor states to the former Soviet Union, for example,
agreed that most of the property and the major part of the debt of
the USSR were to be taken over by the Russian Federation. The
other states were accorded small percentages and a remaining part
was transferred to the Baltic States and Georgia.
• Finally, it should be noted that Western states refused to sign or
ratify the 1983 Vienna Convention on Succession of States in
Respect of State Property, Archives and Debts mainly because it
deals with succession to debts owed only to other states and int’l
organizations, and says nothing about succession to debts owed to
individuals and companies.