School of Law

Course Code: BALB4004 Course Name: Public International Law

Topic: Succession

Faculty Name: Bishnanand Dubey Program Name:BALLB

 Succession

• ‘State succession’ is meant the substitution of one state by another state by one another over a territory. It signifies
transfer of rights and duties from one international person to another in consequence of territorial change.
• The Vienna convention on succession of state in respect of treaties of 1978 defines State succession stating under
Article 2(1) (a) as the replacement of one state by another in the responsibility for the International relations of
territory.
• A state which has replaced another state is “Successor State.”
• A state which has been replaced is “ Predecessor State or Parent State.”
• The idea of a succession of international persons was introduced into international law by Grotious as a corollary
of the rule of civil law by which a heir became successor in law of the deceased person and was clothed with the
latter’s rights and obligations.
• Kind s of State Succession:
• State succession may occur in number of ways , for instance dismemberment of a n existing state, secession,
annexation, cession, merger and decolonization of all or parts of an existing state.
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• ‘1) Universal Succession:

• Where the personality of the predecessor state is completely destroyed , and is absorbed by another international
person, the succession is termed ‘ Universal’ or total. It may take place either through voluntary merger, or through
annexation or through subjugation. Universal succession also takes place when a state voluntary merges with
another state.

• 2) Partial Succession:
• When a part of the territory is severed from the parent state, and personality is affected only to the extent by
which the territory is transferred, what results is partial succession. Partial succession takes place , for instance,
either by secession, i.e., separation from the parent state, or by cession, or by conquest and annexation of a part,
or by dismemberment .i.e., when a state is replaced by two or more states.
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• Succession of state and Government:

• The expression ‘succession of state’ is different from that of ‘ succession of the government’. In the latter, personality of
a state, in contrast to a case of succession of state, is not affected but a change occurs either in the organisation of the
government or in some constitutional structures of a state.
• Phillimore says “ it (state) may change its form of civil constitution or government from a republic to a limited monarchy,
from aristocracy to a despotism, or to any imaginable shape, but it does not thereby lose its personality.
• Kent says ‘ Where therefore, a change has taken place in the internal form of the government or in the person of the
ruler, as far as its foreign relations are concerned the state is unchanged, all its treaties remain in force, its public debts
in full existence; its public domain and property pass into the hands of the new government.
• The result obtained in the cases of succession of state is quite different from those of succession of a government . In
the former case, the personality itself of an international person is replaced by another. When a new government takes
up the reigns of office, questions may raise as to extent to which the rights and obligations of the former government
are extinguished , and as to the extent of which the new government becomes entitled to such obligations. In the case
of succession of states the problem is as to what rights and obligations. In the case of succession of states the problem
is as to what rights and obligations of the extinguished state pass to the successor state.
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• Theories of State Succession:

• 1) Universal Succession State:( Grotius)
• The successor state enjoys all the rights and discharges all obligations of its predecessor. The new state is regarded
as a direct heir of its predecessor personality in the same way as the heirs continued the personality and legal
relations of the deceased in private law. The idea of the succession in this sense has been derived from roman law
, where the heir took up the person of the deceased and stepped into all his rights and liabilities.
• The Roman law notion of succession upon death into the field of state succession in International law was first
introduced by Grotius and was adopted by Pufendrof and Vattel.
• Defects of Universal Succession theory:
• 1. The analogy of the succession of private law has been characterized as inaccurate.
• 2. There is an apparent defect too, I as much as right and duties of individuals and those of states are not
comparable in the sense that the former are personal to a real being, and the latter to a fictional one.
• 3. The Successor state would have to be regarded as bound by all kinds of treaties including personal and
commercial treaties as well as all the debts and contracts of the predecessor State.
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• 2. Continuity Theory: (Max huber)

• According to him the notion of succession is a general one in law, and belongs exclusively neither to private nor to
public law. Succession is substitution plus continuation. The successor steps into the place of the predecessor and
continues his rights and obligations so far the succession of private and public law agree. Thus the successor state
firstly, substitutes the personality of its predecessor and secondly, takes all the rights and obligations of the
predecessor as a bundle of jura.
• 3. Negative Theory:
• The lack of correspondence between the universal succession theory and international practice give rise to
another theory which is altogether different from the above theories. According to this view, the successor state
does not succeed to the personality of the predecessor. It is contended that the sovereignty of the predecessor
state over the absorbed territory is abandoned. Accordingly, the successor state exercises jurisdiction over the
territory not by virtue of a transfer of power from its predecessor, but because, but because it has acquired the
possibility of expanding its own sovereignty in the manner dictated by its own will. The succeeding state is in no
way found to respect the rights and obligations of the state which cease to exist. International personality of the
defunct state disappears with its extinction. The successor states starts its life in the form of the ‘Clean Slate’
 Succession

• Principle, under which new states acquire sovereignty free from incumbrances created by the predecessor
sovereign.
• The change of sovereignty does not mean an automatic collapse of the legal system. There are certain rights as
well as obligations which are discharged by the successor state, on the basis of equity, justice and reasonableness.
It becomes the duty of the state to discharge the obligations since it accepts the benefits attached to it.
• There is no theory can provide solution to all the problems of state succession. The universal succession theory is
impracticable from the point of view of the successor state, the negative theory refuses to admit any general
principle. It would leave the new state discretion to apply any rule which conforms to its interest.
 Succession

• Consequences of State succession.

• 1) Treaties:
• A) Personal treaties( Political Treaties)- Treaties which are concluded due to the personal influence of the
contracting parties such as those relating to peace, alliance, mutual assistance and friendship, neutrality,
guarantee, non-aggression and of pacific settlement are not binding on the successor states. At present this rule
has been considerably modified. The successor state, generally continues all those treaties which conform with its
interests and suits to it in changed circumstances. The continuance or termination of a treaty depends upon the
relations between the successor state and other contracting parties.
• B) Commercial treaties: Commercial treaties, like the political treaties are also not binding on the successor state.
Only those commercial treaties are assumed which can be reconciled with the new order of things.
• C) Administrative Treaties: Administrative treaties such as treaties of judicial assistance, avoidance of double
taxation and extradition treaties do contain political elements, but they are different from political treaties stricto
sensu. The conclusion of administrative treaties is motivated by the desire of having proper administration of
justice and in some cases for the suppression of crimes. Practice of states regarding succession to extradition
treaties is not uniform.
 Succession

• D) Dispositive Treaties: ‘ Dispositive treaties’ or real or localized treaties create rights in rem. Such treaties create
rights which are of permanent nature and are independent of the personality of the State exercising sovereignty.
There is an essential difference between a personal and a real treaty. While the former is in the nature of a
contract, the latter is in the nature of conveyance.
• 1) Servitudes-
• State servitudes is the term sometimes used to denote exceptional restrictions made by a treaty or otherwise on
the territorial supremacy of a state by which a part or the whole of its territory is in a limited way made to serve a
certain purpose or interest of another state.
• 2) Frontier Agreements-
• Demarcation of boundary lines is another example of dispositive treaties. State practice and writings of the jurist
show that they are also considered as binding on the successor state. The principle regarding the continuity of
boundary treaties is also enshrined under article 62 para 2 of the Vienna convention on law of treaties which
stipulates that a fundamental change in circumstances may not be invoked as a ground for terminating or
withdrawing from a treaty that established a boundary. Article 11 of the Vienna Convention 1978 also lays down
that a succession of states does not as such affect:
 Succession

• a) a boundary established by a treaty

• b) obligations and rights established by a treaty and relating to the regime of a boundary.

• E) Multilateral treaties:
• Multilateral treaties are generally continued by the successor state because they are concluded mostly on general
subjects which are beneficial to almost all the states of the international community. The successor state is not
bound to continue such treaties in all the cases and therefore succession to multilateral treaties cannot be
regarded as a general rule of International law.
• 2) Membership of International Organization:
• Constitutions of most of the international organization exclude the possibility of succession , and therefore, the
question of succession of membership does not arise. Each and every state is required to apply a fresh in order to
become a member of such organization irrespective of the fact that its predecessor was a member of that
particular organization. However, in the case of a Union of states, the new ‘ Union State’, will subject to any special
rules and procedures of the organization in question.
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• 3) Public Property:
• Vienna Convention on State succession in respect of state property, Archives and debts of 1983 under Article 8
defines state property for the purposes of the convention as property, rights and interests which , at the date of
the succession of states, were according to the internal law of the predecessor state owned by that state. It is an
established principle of International law that the successor state takes over all the public and proprietary rights.
• State immovable property such as fixed military installations, prisons, airports, government offices, state hospitals
and state educational institutions situated in the territory to which the succession relates , passes to the
successor state.
• As to movable property outside the territory in question Article 17(1) ( C) of the Vienna convention of 1983
provides that such property ( in case of separation of part of a State) shall pass on to the successor state in an
equitable proportion. Article 11 of the Vienna convention on state succession in respect of state property,
Archives and debts of 1983 lays down that in general the successor state takes over the predecessor’ s State
property without compensation.
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• 4) State Archives:
• Archives has been defined in the present context under Article 20 of the Vienna convention of 1983 as all
documents of whatever date and kind, produced or received by the successor state in the exercise of its functions
which, at date of the succession of states, belonged to predecessor state according to its internal law and were
preserved by it directly or under its control as archives for whatever purpose.
• Articles 21 to 24 of the Vienna convention of 1983 provides that generally, such archives shall pass at the date of
succession and without compensation and without as such affecting archives in the territory owned by third state.
• The convention under article 28, 30 and 31 also contain paragraph explaining that the bilateral agreements over
state archives, shall not infringe the right of the people of those states to development , to information about their
history and to their cultural heritage.
• 5) Public Debt:
• Public debt or state debt as referred by the Vienna convention on the succession of states in respect of State
property, Archives and debt of 1983 has been defined as any financial obligation of the predecessor state arising in
conformity with International law towards another state, an international organization or any other subject of
International law.
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• In several cases of State succession, the above principle appears to have been compiled with. However, if the
successor state accepts the benefits of the predecessor state, it becomes moral obligations to accept its burden as
well. Where a succession take place with peaceful means, successor state assumes the public debt on the basis of
proportionality of benefits received.
• Private creditor does not acquire directly, if the private creditors are foreigners, the can seek protection through
their state.
• 6) Contracts:
• Law relating to contract on succession is not well established , it depends on the discretion of the successor state.

• 7) Torts:
• Claims of unliquidated damages occur where the matter in dispute has not come before the judicial authorities
and the issue of compensation has to be determined by a competent court or tribunal. The successor state is not
bound to assume the unliquidated damages ofr the torts of the predecessor state in view of their being of
personal nature.
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• 8) Laws:
• It is a recognized principle of International law that law once enforced are not changed merely by the change in
sovereignty over a state, unless new law is not enacted by successor state.

• 9) Nationality
• Nationals of the predecessor state as rule lose their nationality at the extinction of state. They become national of
successor state. The national can choose between successor state and Predecessor state.

• 10) Private rights:

• A change in sovereignty doe not itself terminate private rights dependent on the previous sovereign's law. The
Practice of states tends to establish as a rule of International law the duty of a successor state to respect the
acquired rights of private persons.