Public International Law

Assignment
Topic: State Succession

Submitted by: Taiyeba Noor Fatima

B.A.LL.B(Hons.)
Self Finance
Roll no: 57
1
Acknowledgement
I would like to express my special thanks of gratitude to my teacher Dr. Noor Jahan Momin who
gave me the golden opportunity to do this wonderful project on the topic State Succession, which
also helped me in doing a lot of Research and I came to know about so many new things I am
really thankful to her.
Secondly I would also like to thank my parents and friends who helped me a lot in finalizing this
project within the limited time frame.

2
 INDEX

Serial No. Topic Page No.

1. Introduction 4

2. Kinds of 6
succession

3. Theories of 8
Succession

4. Results of State 8
Succession

Conclusion 10
5.

Bibliography 11
6.

3
INTRODUCTION
The idea of succession was first initiated by Grotius, who for the very first time propounded the
universal succession theory by inducting a Roman law analogy of succession on death of a
natural person. According to the theory propounded successor state succeeds all the rights and
obligations of the predecessor state in relation to the territory affected by such change, without
exceptions and modifications. It seems that old European jurists were highly influenced with this
theory.

By state succession it is meant that substitution of one state by another over a territory. It
signifies transfer of rights and duties from one international person to another by a territorial
change. Also, a case of succession arises only when one subject of International law enters into
rights of others.
However, the issue of state succession 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 once recognized entity disappear in whole or in part to be succeeded by
some other authority, thus participating problems of transmission of rights and obligations.

The Vienna Convention on Succession of States in respect of Treaties is an international treaty

opened for signature in 1978 to set rules on succession of states. It was adopted partly in
response to the "profound transformation of the international community brought about by the
decolonization process". It entered into force on 6 November 1996, which was triggered by the
succession of North Macedonia to the treaty giving it the requisite 15 parties.
However, formulation of state succession conceals a host of problems since there is a complex
range of situations that stretches from continuity of statehood through succession and non-
succession. In many circumstances it is unclear which rights and duties will flow form one
authority to another. Much will depend upon the given circumstances of a given case. Also, the
role of recognition in this process is essential. The state which has been eeplaced is known as
‘parent’ or ‘predeccessor’ State.

4
The relevant date of succession is the date at which the successor state replaces the predecessor
state in the responsibility for the international relations of the territory to which the succession
relates. This is invariably the date of independence.

5
KINDS OF STATE SUCCESSION

There are majorly two kinds of state succession. They are-

 Universal Succession - If the legal identity of a community is completely destroyed there

is said to be universal succession of states. Universal succession takes place when a state
is completely absorbed by another, either through subjugation or through voluntary
merger. Universal succession takes place under the following circumstances :
(a) When the territory of a state is forcibly annexed by other state.
(b) When a state voluntary merges into one or several states.
(c) When one state is divided into several states and several states are formed.
Oppenheim says that ‘when a state breaks into parts which either become separate
international persons of their won or annexed by surrounding ’ is also a case of universal
succession.
 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 :
(a) When a part of the state revolts and after achieving freedom becomes a separate
international person.
(b) When a part of state is ceded to another state.
(c) When a state accepts the suzerainty or becomes a protectorate of another state.
For example- Secession of Estonia, Lativia and Lithuania in 1991 from USSR.1

However, in those cases where the succession where the loss of territory is considerable, or
where the state loses certain essential portions of the territory, it may mean dissolution or end of
state.

The common factor in both kinds of succession is that is one or more sovereign substitute for one
another and the distinction is merely a way of defining the extent of change in rights and duties
of the old state to new state.2

1
Dr. H.O. Agarwal, International Law and Human Rights (Central Law Publications)
2
State Succession, available at: www.internationallawu.blogspot.com (Last visited on March 30, 2019)

6
THEORIES OF STATE SUCCCESSION
There are majorly three theories of succession. They are :

 Universal Succession Theory – The earliest doctrine of state succession treats the
process as substitution of one state to another. The successor state enjoys all the rights
and also thereby discharges all obligations of its predecessor. The universal successor
assumes the whole of the legal clothing of the person whom he succeeds as it were in its
shoes. This idea of the succession in the sense has been derived from Roman law,
wherein the heir took up all the responsibilities and liabilities.
Though, this theory describes the succession of private law as inaccurate. The theory that
the rights and obligations pass to the successor from the predecessor state in to-to without
any change or modification is unrealistic because to commences from a prior analogy and
seek to force state practice within the confines of a single set of instructions.
The Universal succession theory not only failed to seek substantial response in the state
practices of succession but, became a subject of severe criticism as well.

Continuity Theory - According to this theory, a state has two personalities of its own; one is
social and the other is political. Territory and the people living who occupy such territory, are
the basis of social personality of the state because the territory are inseparably connected
with each other and forms a permanent social identity. Whenever state succession takes place
only the political identity of a state is affected while the social personality remains intact.
This theory and doctrine becomes inapplicable. Also, this theory appears to be quite
inconsistent with the practice of states. Rights and obligations are not transferred unless there
is a treaty agreement. Keith has criticised this theory on the ground that it rely on the
operation of municipal law to govern 22 the consequences of state succession. Prof.
O'Connell has pointed out that the major defect of this theory is the conceptualization of
states personality. According to him, personality, as juridical term signifies the homogenous
and autonomous character of the community, which is not transmissible.3

 Negative Theory - Negative Theories were developed during the mid-nineteenth century
and the early part of Twentieth Century when the Universal Succession Theory did not

3
International Law: State Succession, available at: www.scribd.com (Last visited on March 30, 2019)

7
 take into account the existing facts of international law. This theory contends that the
sovereignty of the predecessor state over the absorbed territory is abandoned.
Accordingly, the successor state excercise jurisdiction over the territory not by virtue of
transfer of power but because it has acquired the possibility of expanding its own
sovereignty in the manner dictated by its own will.
Though, negative theory does not solve the problems which are bound to arise on change
of sovereignty.
It is now evident that no given theory can solve he issues if state succession. Hence, to
fulfill the needs each theory should be considered separately, no theory alone can work.4

Results of State Succession

 Treaty rights and Obligations - Where a State merges voluntarily into another State or
where it is subjugated by another State, the Successor State remains one and the same
International Person, while the predecessor State which has merged or been subjugated
becomes totally extinct as an International Person. Political treaties and alliances and
rights and obligations occurring thereunder, in the absence of a substantial continuity of
personality, become extinct and invalid and the Successor State does not succeed to such
rights and duties of the extinct State. 5
 Membership - Membership of the International organizations and the obligations
incidental thereto do not pass to a successor State. The Irish free State applied for its
admission, and was admitted, to the League of Nations; Iceland did not inherit any part of
the membership of Denmark and was admitted to International Labour Organization in
1944.
 Public Property and Public Rights - When one State succeeds de facto to another, it
succeeds to all the public and proprietary rights of the extinct State. State Property State
railways and fiscal funds pass to the annexing State.
The successor state takes all the assets of the vanquished State, including such assets as

4
State Succession in International Law, available at: www.legalservicesindia.com (Last visited on March 30, 2019)
5
Codifying the Law of State Succession, available at: www.academic.oup.com (Last visited on April 1, 2019)

8
 State funds, funds invested abroad, movable and immovable property. It also acquires the
right to collect taxes due to the replaced State.
 Private Rights - A cession of territory from one State to another, however, affords no
title to the successor State to private property in the soil for succession merely refers to
public rights of sovereignty and not to private proprietary rights. The private rights of
inhabitants, and their relations to each other, unless specially altered by the conqueror,
remain the same.
 Private Property – It is a general rule of public law that whenever political jurisdiction
and legislative power over any territory are transferred from one nation or sovereign to
another, the municipal laws of the country that is laws which are intended for the
protection of private rights, continue in force until abrogated or changed by new
government r sovereign.
 Contractual Liability - The Successor State is bound by the contract of the extinct State.
The new State becomes Liable for all local and contractual obligation.
 Torts - The Succeeding States, whether by conquest or voluntary absorption, are under
no liability for the deficits of the extinct States.
 Public Debt - In the case of succession to public debts of a State which ceded part of a
territory only but continues to exist, the question assumes greater difficulty. It was
observed by Arbitrator Eugene Borel in the Ottoman Public Debt Arbitration on 18 April
1925 that, "it is impossible despite existing precedents to say that a Power which acquires
territory by cession is legally obligated to assume a corresponding part of public debt."
 Nationality - As regards nationality, the inhabitants of the ceded or vanquished territory
become subjects of the annexing State and lose the citizenship of the former State.
 Laws - The civil law of the former sovereign continues unless changed by the successor
State; public law, however, changes simultaneously with the transfer of
sovereignty: Philippine Sugar Estate Development Company Ltd. v. United States
whenever public law continues to remain in operation after a territorial transfer derives its
6
force as positive law owing to its acceptance by the acquiring State.

6
Principles of State Succession, available at: heinonline.org (Last visited on April 1, 2019)

9
Conclusion

The subject of state succession cover such a widely differing phases which depends upon diverse
consideration and principles, that nothing but confusion can result from the common method of
treating them all as an homogeneous mass to be forced within the confines of single rule.
General subject, it is submitted, should be classified under different legal interests involved, and
effect of succession of states on each legal interest should be again classified in different origins
of state succession and then law relating to each one of them should be analysed separately.

None of the above given theories were followed by state and courts uniformly. State practice and
judicial decisions show that legal effect of state succession varies from case to case and from
state to state. In presence of so many conflicting theories political considerations play an
important role in shaping the effect of state succession. The All these theories are the product of
specific situations, time and places. The continuity theories are seems to be the product of
culturally and religiously homogeneous European society, whereas the clean slate and the
optional theories appear to be the product of confrontation of interests of east and west. On the
other hand, the burden with benefit and the populace benefaction 3 theories are seems to be the
out come of unification of several independent states into U.S.A.

10
Bibliography

 International Law and Human Rights – Dr. H.O. Agarwal

 Public International Law – V. K. Ahuja
 Public International Law – Abhimanyu Singh
 www.legalservicesindia.com
 www.scribd.org
 www.lawnotes.in

11