CHAPTER I

Introduction and Research Methodology

INTRODUCTION
Since World War II, State succession has become increasingly important as it affects more States
and more legal relationships than ever before. Approximately 100 new States emerged with the
end of decolonization. Recently, Germany reunified, while the Soviet Union, Yugoslavia and
Czechoslovakia dissolved. These changes affected more legal relationships than the earlier
decolonization process. These newly formed European States are more integrated into the
political, economic and legal global framework and are of greater importance, than were the
former dependent territories that became new States 1. This Article attempts to introduce the law
of state succession, the effect of state succession on debts. This article tries to reflect upon the
nature of the problems that arise and may go some way towards ameliorating their effect. This
Article will argue that in spite of a failure to codify State succession matters, a lack of consensus
among learned authors, and clear tendencies in older precedents, there seems to be an emerging
consensus in recent practice suggesting that State succession should not normally lead to a
disruption of legal relationships at all levels.

1.2 OBJECTIVE OF THE STUDY

The research project has been carried out with the following objectives:
The basic objective behind carrying out this project is to study about concept of state
succession with reference to theories.
To know about the codification of state succession and various legislatures of state
succession.

1 D.P. O'Connell, Reflections on the State Succession Convention, 39 ZaoRV 725

(1979).

1.3 RESEARCH METHODLOGY

The quality and value of research depends upon the proper and particular methodology adopted
for the completion of research work. Looking at the vastness of the research topic doctrinal
Legal research methodology has been adopted. The researcher has taken help of both the primary
as well as the secondary sources.

CHAPTER II
Attempts to Codify or Legislate the Law of State Succession
Jennings has very correctly remarked that the law of state succession is a subject which presents
such a rich diversity of practice as to give some plausibility to a surprisingly varied range of
theoretical analysis and doctrine2. It is a subject, which has been largely confused and resistant
to simple exposition. Despite the vast amount of literature on the subject, rarely is mention made
of the topic without reference to the complexity of issues involved, the almost total doctrinal
schism that has polarized thinking, and the lack of any agreed theoretical structure. The ILC
commented, close examination of State practice afforded no convincing evidence of any general
doctrine by reference to which the various problems of succession in respect of treaties could
find their appropriate solution.3
The International Law Commission (ILC) has considered the matter extensively, and two
international conventions on the law of state succession have been adopted 4 . Neither of the two
conventions has entered into force although each requires but fifteen ratifications or accessions
for entry into force. The ILC deals with State succession under four categorical headings:
1) Treaties: the Vienna Convention on Succession of States in Respect of Treaties (Vienna I);
2) State property, State debt and State archives: the Vienna Convention on Succession of States
in Respect of State Property Archives and Debts (Vienna II);5
2 Jennings, General Course on Principles of International Law, 121 RdC (1967), at
437.
3 Yearbook ILC (1974 - II, part i), at 168, para. 51. See also Castrn, Obligations of
States Arising from the Dismemberment of Another State, 13 ZaRV (1951) 753
4 Vienna Convention on State Succession in Respect of Treaties, 17 ILM (1978)
1488; Vienna Convention on State Succession in Respect of Property, Archives and
Debts, 1983, 22 ILM (1983) 306.
5 Vienna Convention on Succession of States in Respect of State Property, Archives
and Debts, Apr. 8, 1983, U.N. Doc. A/CONF.117/14 (1983) [[[hereinafter Vienna II].

3) Membership to international Organizations: the ILC Rapporteur concluded that the subject
matter was not appropriate for codification. The Rapporteur recommended a report to provide
illustrations for resolving different categories of problems--illustrations which could have a
unifying effect on the practice of Organizations and
4) State succession and its impact on the nationality of natural and legal persons: the Rapporteur
also failed to find any prospects for codification and recommended an ILC report or a United
Nations General Assembly draft declaration setting minimum standards for the automatic
acquisition of nationality. These minimum standards would serve as guidelines for State
legislation concerned with State succession.
2.2 Legal Doctrine
The ILC's failed efforts to codify or legislate a doctrine for State succession reflects the state of
legal doctrine as supported by precedents in State praxis and opinions of learned authors. 6 State
practice and legal theory regarding succession yield separate approaches dealing with the legal
consequences of such succession:
1) The continuity of treaties, claims, debts, etc.;
2) the discontinuity "clean slate" or tabula rasa;
3) a casuistic distinction according to the type of State succession or to the type of legal
relationship concerned; and
4) a case-by-case settlement by mutual agreement between the successor State and other States
concerned. The fourth option includes the application of the rebus sic stantibus principle
although the widely-accepted Vienna Convention on the Law of Treaties only allows the
principle to be applied within an existing treaty relationship. The principle's invocation
presupposes agreement on the treaty's continuity.

6 Report of the International Law Commission to the General Assembly, 39 U.N.

GAOR Supp. (No. 10) at 1, U.N. Doc. A/36/10 (1981) [hereinafter Report of the ILC];
Report of the Commission to the General Assembly, U.N. Doc. A/9610/Rev.1 (1974),
reprinted in [1974] II Y.B. Int'l L. Comm'n 157, U.N. Doc. A/CN.4/SER.A.1974/Add.1
(Part One); see also Richard J. Graving, Status of the New York Arbitration
Convention: Some Gaps in Coverage but New Acceptances Confirm its Vitality, 10
Foreign Investment L.J. 1 (1995).

For many authors, the central issue of substance is simply whether or not one of two alternative
theses should be applied: the universal succession thesis or the clean slate (tabula rasa) thesis.
The former approach is a derivative of the Roman law concept of inheritance in civil law, in
which the heres (the appointed successors) acquire not merely a single res, but an aggregate of
rights and liabilities called a iuris universitas.7

2.3 Universal Succession: The Continuity Theory

The continuation theory of state succession is an anti-thesis to the clean-slate theory of
membership.8 Under the continuity theory, rights and duties may still pass to States that have lost
extensive portions of their territories and/or have undergone radical changes in government as
long as they are considered to have inherited the essential legal identity of the former member. In
this regard, a distinction must be made between the concepts of continuity and state succession.
In the former, the same State is deemed to continue to exist, while in the latter, one or more
successor States are deemed to have replaced the former State 9. Prichard explains that at the time
of Justinian:
The universal successor assumes the whole of the legal clothing of the person to whom he
succeeds; steps, as it were, into his shoes. He takes over his rights and liabilities of every kind;
his property (res singulae) and iura in re aliena, the debts and other obligations (such as rights of
action for damages for breach of contract) owing to him, and the debts and obligations which he
owes.
Under the continuity theory, there can be only two ways to view the division of a state: (i) as a
"breakaway," in which one of the divisions represents the continuing existence of the State while
the others represent States that have seceded from it; or (ii) as a complete "dissolution," in which
the State has been dissolved and none of the resulting States represent its continuity. Thus, the
7 H. Jolowicz, Historical Introduction to the Study of Roman Law (1954), at 127.
8 D. OConnell, State Succession In Municipal Law And International Law (1967), at
228; Odon Udokang, Succession of New States To International Treaties 22 (1972).
9 James Crawford, The Creation of States in International Law 400 (1979).

determination of whether the changes in a State constitute an extinction of its legal personality is
critical to the inheritance of its rights and duties and other obligations. The legal identity of a
State might be destroyed through division, 10 if it loses (a) Majority of the population and territory
of the former state; (b) seat of government, its original territorial nucleus, or areas from which it
obtained extensive revenues; (c) acceptance by the international community regarding its
continuity.11
The universal succession thesis demands too much. It argues for the maintenance of legal
continuity in circumstances in which some alteration of legal relations is both inevitable and
necessary. It assumes that states may be burdened with obligations in a situation where specific
consent is palpably absent, not because of any universal necessity but because of some inchoate
systemic interest in legal continuity. OConnells approach in this regard is undoubtedly radical,
and for that reason his tentative phraseology is entirely apposite. His suggestion is tantamount to
a disposal of all questions of succession understood as an inheritance or assumption of rights
and obligations by reference, not to the normal bivalent division between succession and nonsuccession but to the integrity of the legal relations themselves.12

2.4 PARTIAL SUCCESSION

When as a result of civil war or war of liberation, a part of state breaks off and takes up an
independent position. Partial succession takes place under the following circumstances

When a part of the state revolts and after achieving freedom becomes a separate

international person.
When a state accepts the suzerainty or becomes a protectorate of another state.

10 Marco A. Martins, An Alternative Approach to the International Law of State

Succession, 44 Syracuse L. Rev. 1019 (1993); Scharf, supra note 14, at 41.
11 Carsten Thomas Ebenroth et al., The Enduring Political Nature Of Questions Of
State Succession And Secession And The Quest For Objective Standards, 17 U. Pa. J.
Intl Econ. L. 753, 755 (1996).
12 D. OConnell, State Succession in Municipal and International Law, vols. I, at 3
(1968).

2.5 STATE SUCCESSION

States are the principal subjects of international law and thereby possess international personality
of the fullest kind.13 It is quit apparent that one cannot tackle the question of State succession, i.e
the issue of transmission of rights and obligations from one State to another without at first
confronting the problem of statehood. Succession is predicated upon the existence of two (or
more) States has been resolved in a way that the issue of identity or continuity of States has been
resolved in a way that presents the international community with at least two states. Of course, in
the vast majority of cases no problem will occur at this point, but in some situations this will not
be so. In addition, it is important conceptually to distinguish issues focusing upon statehood from
those concerned with succession in order to be able to appreciate the crucial distinction between
the legal consequences flowing from a determination as between continuity and succession.14
2.6 VIENA CONVENTION
Vienna I and II state that succession is "the replacement of one State by another in the
responsibility for the international relations of a territory." This definition excludes mere changes
of government like those revolutionary transformations of a State brought about by the
introduction of socialism or by its abolition. The Vienna Conventions' definition avoids tricky
questions as to, what is a state? - In the same way that all invocations of the principle of selfdetermination avoid saying to whom the right is granted. The definition of State succession limits
itself to a symptom or to the effect relevant for international law in the succession of
responsibility for a predecessor State's international relations. Yet this symptom of responsibility
for international relations is the result of a social, political, and historical process with
consequences in the fields of national constitutional, administrative, and civil law. And there the
question concerning the process of State succession frequently becomes unavoidable, especially
when it is necessary to determine the date on which State succession has taken place. In
addressing the issue of when a succession has occurred, the Vienna Conventions simply state:
'date of the succession of States' means the date upon which the successor State replaced the
13 Oppenheims international Law, op. cit., p.120.
14 Marek, Identity and Continuity of States in Public International Law (1968) p. 10
et. Seq.

predecessor State in the responsibility for the international relations of the territory to which the
succession of States relates. The nature of State succession must be considered when a State
claims to be identical with a former State. The definition of the Vienna Conventions correctly
reflects the general conviction that a State identical with another one cannot be its successor.(53)

The issue of state succession can arise in a number of defined circumstances, which mirror the
ways in which political sovereignty may be acquired by, for example, decolonization of all or
part of an existing territorial unit, dismemberment of an existing state, secession, annexation and
merger. In each of these cases a once-recognized entity disappears in whole or in part to be
succeeded by some other authority, thus precipitating problems of transmission of rights and
obligations. However, the question of state succession does not infringe upon the normal rights
and duties if states under international law. These exist by virtue of the fundamental principles of
international law and as a consequence of sovereignty and not as a result of transference from the
previous sovereign. The issue of state succession should also be distinguished from questions of
succession of governments, particularly revolutionary succession, and consequential patterns of
recognition and responsibility.15

15 O Connell, State Succession, vol. I, chapters 8 and 14.

CHAPTER III
CONCLUSION
Summing up, the general provisions of the 1983 Convention, as well as those related to cession,
separation, dissolution and unification can be generally considered as reflecting customary law
and are not subject of much controversy. However, the abstract solutions proposed by the
Convention, i.e. the "equitable proportion" rule, and the lack of elements capable of helping to
establish criteria for reaching that result, has not encouraged States to accept the Convention.
It can be wondered; nevertheless, whether an extremely casuistic determination upon what must
be considered equitable in all cases does not risk promoting further difficulties. The narrow
interpretation of State debts adopted by the 1983 Vienna Convention was superseded in order to
extend it to debts contracted with private subjects. In fact, it was the extremely privileged
position of the newly independent States and the favorable solutions adopted with regard to them
that constituted a major obstacle for its acceptance. In order to reject them as not having
reflecting the status of customary law, careful consideration of the practice related to State
property and debts in the cases of the last dependent territories having become newly
independent States (Namibia, the former trust territories of the Pacific and East Timor) is needed.

The final report of this Committee intends to deal with this question. At any rate, if one takes into
account that the Convention could not be applied retroactively (unless the State concerned made
a special declaration in that respect, and the declaration was opposable to other interested States),
the reason of its failure as such becomes apparent.

BIBLIOGRAPHY
REFERENCES

D.P. O'Connell, Reflections on the State Succession Convention

Jennings, General Course on Principles of International Law.
Castrn, Obligations of States Arising from the Dismemberment of Another State
Vienna Convention on State Succession in Respect of Treaties
Vienna Convention on Succession of States in Respect of State Property, Archives and

Debts
Report of the International Law Commission to the General Assembly
H. Jolowicz, Historical Introduction to the Study of Roman Law (1954)
Marek, Identity and Continuity of States in Public International Law (1968)