i

Public International Law Project

On

Concept of State Succession and Its Implication under

International Law
Submitted to:

Mr. Mohammad Atif Khan

Faculty, Public International Law

Submitted By:

Anant Ekka

Roll no. 26

Section A

Semester IV, B.A. LLB (Hons.)

Submitted on: 28/11/2018

Hidayatullah National Law University

Uparwara, Abhanpur, New Raipur (C.G.)

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Declaration:
I, Anant Ekka, of Semester IV, Section A, declare that this project submitted to H.N.L.U., Raipur
is an original work done by me under the guidance of Mr. Mohammad Atif Khan, Faculty of
Public International Law. The work is a bona fide creation done by me. Due references in terms
of footnotes have been given wherever necessary.

Anant Ekka

Roll No. 26
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Acknowledgements
I feel elated to work on the project “Concept of State Succession and Its Implication under
International Law.” I express my deepest gratitude towards Mr. Mohammad Atif Khan, Faculty
of International Investment Law, to provide me with the opportunity to work on this project. His
able guidance and supervision were of extreme help in understanding and carrying out the
nuances of this project.

Some printing errors might have crept in which are deeply regretted. I would be grateful to
receive comments and suggestions to further improve this project.

Anant Ekka

Roll No. 26

Section A, Semester IV
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Table of contents
1. Declaration ii
2. Acknowledgments iii
3. Introduction 1
4. Research methodology 2
5. Concept of State Succession 3
6. Kinds of State Succession 3
7. Theories of State Succession 5
8. Rights and Duties arising out of state succession 6
9. Consequences of state succession 6
10. State succession and India 9
11. Conclusion 11
12. References 12
 1

Introduction
The institution of succession was taken from civil law, where we find it in the form of transfer of
rights and obligations either after the death of an individual (assigning an inheritance) or after the
termination of a legal person (by bankruptcy).

In international law, however, the term succession is used only in terms of its conventional
meaning because it was not possible to arrive at a sum of rules, of principles able to regulate the
transfer of sovereignty over a territory from one state to another4.

Therefore, we learn an initial idea, namely that, in international law the concept of succession
has no counterpart in terms of private individuals or legal entities, but refers only to the transfer
between states.

The topic of succession under public international law is an extremely complex one, being
attempted to encode all succession situations.

In this regard, within the UN International Law Commission, were negotiated and adopted two
multilateral treaties aiming to identify and regulate the general trends used in practice in terms of
solving various situations of state succession. These are the Convention on Succession of States
in respect of Treaties and Convention on Succession of States in Respect of State Property,
Archives and Debts, both adopted in Vienna in 1978, respectively 1983. The latter though, so far,
has not fulfilled the required number of ratifications to enter into force.

These conventions have the merit to establish the first definition of succession under the
international law according to which, “succession of States” means the replacement of one State
by another in the responsibility for the international relations of territory”.1

1
Dr. H.O. Agarawal, ‘State Succession-A study of Indian Cases’ p.3
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Research Methodology

Objectives:

The objectives of this project are:

1. To study about state succession and its kinds.

2. To study about the theories of state succession.
3. To study about rights and duties arising out of state succession
4. To study about consequences of state succession.

Methodology:

This research project is descriptive in nature. Accumulation of the information on the topic
includes wide use of primary sources such as cases as well as secondary sources like books,
articles, websites etc. The matter from these sources have been compiled and analysed to
understand the concept.

Chapterisation:

The project broadly has been divided into 4 chapters. Chapter 1 comprises of the introduction to
the topic along with the research methodology that has been adopted in this project. Chapter 2
consists of the origin of the minimum standard treatment in international law. Chapter 3 covers
the mening of minimum standard treatment on the basis of some decided cases. Chapter 4
consists of the relation between and difference between fair and equitable treatment and
international minimum standard treatment.
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Concept of State Succession

In international law it often happens that an existing state acquire new territory or a new state
formed from existing part of a states. In this manner the new state or the acquiring state succeeds
to retain rights, title, interest and obligations of the succeeded territory. This called a state
succession. It simply means transmission of rights and obligations of states which have altered or
lost their identity to other states or entities.

By state succession is meant the substitution of one state by another over a territory. It signifies
transfer of rights and duties from one international person to another in consequence of a
territorial change.

According to Oppenheim, “A succession of International persons occurs when one or more

international person, in consequence of certain changes in the latter’s conditions.”

The Vienna Convention on Succession of States in Respect of Treaties of 1978 defines State
succession likewise by stating under Article 2 (1) (a) as the replacement of one state by
another in the responsibility for the international relations of territory.

The rule of state succession was incorporated from the Roman Law by Grotius. In Roman law
when a person dies his rights and duties are succeeded by his successor.2

Kinds of State Succession

State succession may occur in a number of ways, for instance dismemberment of an existing
state, secession, annexation, cession, merger and decolonization of all parts of an existing state.
The above may be divided broadly into universal succession and partial succession.

1. Universal Succession: It is a form of state succession which happens when the identity of a
state is totally lost or destroyed. This may happens in many forms:
a. Subjugation:- Subjugation happens when one state conquers another by force destroying the
identity of the later.

2
http://internationallawu.blogspot.com/2012/11/state-succession
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Example- The sovereign state identity of Tibet was lost when China subjugated it.

b. Voluntary merger:- This happens when one state merges with another thereby one of the state
loses its identity. Examples-
 Sikkim was an independent state and lost its identity when it merged with India.
 East Germany and West Germany merged thus losing their identity to become
Germany.
c. Breakup:-This happens when a state gets divided into separate parts.

2. Partial Succession: It is a form of state succession when a state loses its territory while
retaining the personality and legal responsibility. Kinds of partial succession:
a. Secession/ Achieving independence:- A part of a state may achieve independence from
another by means of a revolution or agreement or is split up into two states.
Example-
 Bangladesh separated from Pakistan and became an independent nation.
 Secession of Estonia, Lativia and Lithuania in 1991 from USSR.
b. Cession:- A sovereign state surrenders some portion of its territory to another sovereign state.
Example- Berubari
c. Purchase:- A sovereign state can purchase a territory from another state.
Example- USA purchased Alaska from Soviet Russia.
d. Federation:- States can form federations due to their geological, physical and economical
structure. While forming the federation, the small state may lose its part of independence in a
limited manner.
Example- Senegal and Gambia formed a federation yet retaining their independence and
identity.3
e. Referendum:- A referendum could allow people of a state to decide to become independent
or to stay united with its parent state.
Example- Elections in East Timore conducted under the ages of the United Nations
Organization showed that the majority of people elected to separate it from Indonesia and be
an independent nation. Hence East Timore got the recognition of a state by referendum.

3
https://www.lawnotes.in/State_Succession
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Theories of State Succession

1. Universal Succession Theory: The earliest doctrine of state succession treats the process
as the substitution of one state for another. According to this view all the rights and
obligations of predecessor will pass to successor. The rationale behind this theory is that
successors are direct heir of predecessor; hence all should be followed by successor. This
theory may be described as the doctrine of universal succession because all the rights and
duties of the predecessor pass ipso jure to the successor as elements of the state.

2. Continuity Theory: According to this theory, the successor steps into the shoes of the
predecessor and continues the rights and obligations. Hence succession in this case is
substitution plus continuation. According to this doctrine, the policies, procedures and
forms of Government does not change the legal identity of a state. Every new
Government succeeds to the rights and obligations of the predecessor Government. It
protects the contracts, treaties and liabilities that are undertaken by the previous
Government. It gives stability to the State and strengthens the relations between States.

3. Negative Theory: This theory says that the sovereignty of the Predecessor State over the
absorbed territory is abandoned. The Successor State does note exercise jurisdiction over
the territory in virtue of a transfer of power from its predecessor but solely 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 bound to respect the rights and obligations of
the State which has ceased to exist. Reason behind is that since they have separated there
is an implied reason that they were not happy with such obligations.4

4
Dr. H. O. Agrawal, International Law & Human Rights, 20th Edition
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Rights and Duties arising out of State succession

When a state takes the place of another state following rights and duties arise.

1. Political Rights and Duties: No Succession takes place in respect of political duties and
rights. The succession state is not bound by the treaties of peace or neutrality entered into
by the extinct state.
2. Local rights and duties: In respect of land, rivers, roads, railways etc., therefore the
succeeding state succeeds the rights and duties of the former state.
3. Debts: It depends on the discretion of succeeding state whether to pay or not to pay the
public debts of the former state.
4. Nationality: The national of the former state lose their nationality at the extinction of the
state and becomes the nationals of new state.
5. Laws: As far as the laws of the former states are concerned, civil law continues until it is
changed by the succeeding state.
6. Public funds and public property: The successor state takes over the public funds and
public property of the predecessor state.5

Consequences of Sate Succession

1. Effect of State Succession on Treaties: The effect of change of sovereignty in relation to
treaties has always been a matter of controversy because of its different varieties and of
different circumstances under which they are concluded. No single answer could possibly be
given to all the categories of treaties. The effects of succession of states on different kinds of
treaties are as follows:
a) Personal treaties or 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, guarantee and of pacific settlement are not binding on the successor states.
The successor state generally continues all those treaties which conform to its interests and
5
http://internationallawu.blogspot.com/2012/11/state-succession
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suits to it in the changes circumstances. It is discretion of the new state to follow or not to
follow, they can follow or modify or adopt new law.
b) Commercial treaties- These are also not binding, it is the discretion of the new state.
c) Administrative treaties- Administrative treaties such as judicial assistance, avoidance of
double taxation and extradition treaties do contain political elements, but they are different
from political treaties in strict sense. It also depends upon the discretion of the new state. It is
desirable in order to have effective international judicial administrative system and in order
to suppress crime that such treaties are continued by successor state.
d) Dispositive treaties (Real/ Localised treaties) - Dispositive treaties are treaties which
create a vested interest. Such treaties create rights which are of permanent nature and are
independent of the personality of the state exercising sovereignty. Difference between
personal and real treaty is that former is in nature of a contract, the latter is in nature of
conveyance.
2. Effect of State Succession on Tortious liability: Under International law, in case of tortious
liability, the successor state is not liable for liquidated damages for the torts of the
predecessor states. If the amount of claim has become liquidated by agreement of the parties
or through a judgment or decision of tribunal, then in the absence of any suggestion of
injustice or unreasonableness, the successor state may be bound to settle the amount.
Robert E Brown Case ( US v. UK): Robert E Brown was an US national doing business of
gold mining. He went South Africa and entered into a number of contracts with South
African government for mining gold. Due to some reasons South African government
confiscated all his gold property. He filed a case for release of his property in South Africa
court.
During pendency of the case, South Africa was annexed by UK in 1890. On the behalf of
Robert US claimed compensation from UK.

Question came up whether UK bound to follow the tortious liability of South Africa?
Court established the principle that the successor state is bound to follow only when there is a
liquidated claim and held that in this case it is an unliquidated claim the successor state i.e.
UK is not bound to follow the tortious liability of South Africa.
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3. Effect of State Succession on Contractual liability: The principle is that all acquired rights
will pass to the successor state.
West Rand Central Gold Mining Company v. King: A company was engaged in the
operation of gold mining. Company entered into a contract with the government of South
Africa for mining. Before the date of performance by either party South Africa was annexed
by UK. Company filed a suit against the UK king claiming performance by UK.
The question came up whether UK was bound to follow company established by South
Africa i.e. predecessor?
Court held that since there was no acquired right UK was not bound to follow the contractual
obligation.
4. Effect of State Succession on Concessionary contracts: Concessionary contracts are
contracts in the nature of license or grant. The principle is that liabilities do not pass to the
successor at any point.
5. Effect of State Succession on State Property: Sate property can be classified into movable
and immovable property. Everything which can be served from earth are known as movable
property. With respect to immovable property there is no dispute. Wherever the property is
situated that country will have the possession. In case of movable property, generally the
states involved in state succession agree through agreement and if there is no agreement then
there would be equitable distribution.
6. Effect of State Succession on State Archives: State archives are those documents which are
in the possession of state. In case of state succession all the state archives connected with
respective territory will go to that territory.
In case the state archive is relevant to both predecessor and successor state then both states
will get a copy of the same.
In case the state archive is not relevant to either successor or predecessor then there is
equitable distribution to both the states.
7. Effect of State Succession on Public Debts: There are no clear rules on this point. Normally
no state considers itself bound by the debts of the predecessor state. But where the successor
state accepts the benefits of predecessor state, it should also accept the burden. The Vienna
Convention of 1983 deals with the state debts and Article 36 lay down a general rule that a
succession of state does not as such affect the rights and obligations of creditors. Where the
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successor state is a newly independent state, no state debt shall pass by agreement (article
38). In case it is not traceable how the public debt has been utilized then it is equitably
distributed between the successor and predecessor.
8. Effect of State Succession on Laws: It is a recognized principle of International Law that
law once enforced are not changed merely by change of sovereignty over a territory. They
are continued by the successor state even if they are inconsistent with the newly acquired
status of a state, unless new laws are enacted by the successor state.
9. Effect of State Succession on Public property and Public rights: it is generally recognized
that the state successor takes over the public property and public rights in succession.
10. Effect of State Succession on Private property and Private rights: A change of
sovereignty does not itself terminate private rights dependent on the previous sovereign laws.
The practise of state tends to establish as a rule of international law the duty of a successor
state to respect the acquired rights of private persons.6

State Succession and India

India and Pakistan became new Dominions on August 15, 1947 through the Indian Independence
Act of 1947. The creation of the 'two independent Dominions' in India raised a question as to
whether they were created out of the result of dismemberment of (British) India, or it was a case
of secession of certain parts of territories, forming Pakistan, from India.

The Dismemberment occurs when a State breaks up into fragments in the sense that two or more
new States are formed within its territory. Replacement of the Soviet Union by 12 Republics is
an instance of dismemberment. In such cases, the existence of the former State comes to an end.
Its personality is replaced by two or more new States. In the case of secession, certain part of the
territory severs itself from an existing State, and acquires, after such severance, a new
international personality. In such cases the personality of the existing State is affected only to the
extent by which the territory is lost. Bangladesh is an instance of secession. If the case of British
India is regarded as to that of dismemberment, it would mean that both the new Dominions
6
Dr. H. O. Agrawal, International Law & Human Rights, 20th Edition
 10

acquired new international personality, and if it is regarded as a case of secession, only Pakistan
is regarded as to have acquired new international personality whereas India would be deemed to
have continued the juristic personality of (British) India. In other words, rules of State succession
shall be applied in the former case in respect of both the new States, and in the latter case, rules
shall be applied only in the case of Pakistan.

On the status of Pakistan, no controversy arose; it was regarded as a new State. However, on the
status of India a controversy arose as to whether it continued the personality of (British) India. If
the provisions of the Indian Independence Act of 1947 is analysed, it would be clear that India
acquired a new international personality. The Act was made to set up 'in India two independent
Dominions'. The Act itself divided the territories of (British) India into two new Dominions.
These provisions kept the Dominions on equal footing. The setting up of the two Dominions, in
(British) India clearly leads to the conclusion that the whole of the territory was divided into two
new Dominions, and thereby it ceased to continue as an entity. The division of rights, property
and liabilities and rights' and obligations resulting from international agreements and treaties
between India and Pakistan' also supports the above view. Had it been a case of secession, the
question of division would have not arisen. The instant a case of dismemberment of British India
and the principle of succession applies to them.

After India became independent many territorial changes took place for instance, Goa, Daman
and Diu and Enclaves of Dadra and Nagar Haveli were ceded to India by Portugal. Sikkim
merged with India. They all constituted the cases of state succession. The case of Berubari Union
No. 12 and Kashmir are also instance of state succession.
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Conclusion
An official definition of "state succession" being expressed in Article 2 (1) (b) of the Vienna
Convention of 1978, according to which, “succession of States means the replacement of one
State by another in the responsibility for the international relations of territory”

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.

Obviously the problem is different in the case of total acquisition from what it is the case of
partial acquisition. In the former case there is no surviving person to whom antecedent rights and
obligations may still be attributed, whereas in the latter case there is. The problem in the one case
is to ascertain what rights and obligations pass to the Successor State and what lapse for want of
a juridical entity in which they can be invested. The problem in the other case is to distinguish
those rights and obligations, which are automatically transferred to the successor state from
those, which remain with the Predecessor State.

Who decides whether State succession has taken place? The international community can
influence this determination. Third State decisions are not, however, determinative, creating a
problem similar to that of recognition of States: As third States cannot recognize an entity as a
sovereign State that does not want to be one, likewise third States cannot impose their view in
cases of State succession.
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References
Bibliography:

1. Dr. H. O. Agarwal, International Law & Human Rights, Central Law Publication, 20th
Edition

Webliography:

1. https://www.slideshare.net/sourabhubale/state-succession-public-international-law
2. https://www.lawnotes.in/State_Succession
3. http://www.legalserviceindia.com/articles/insu
4. http://internationallawu.blogspot.com/2012/11/state-succession
5. https://lawnots.blogspot.com/2017/04/what-do-you-mean-by-state-succession
6. http://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-
9780199796953-0045.xml
7.