STATE SUCCESSION

Introduction
State succession means the replacement of one state by another in the
responsibility for the international relations of territory. It is generally regarded
as “change in the sovereignty of a state.” The concept is derived from the
Roman analogy of the succession to the deceased’s estate. There are various
theories regarding the nature of the State succession.

Definition
• According to Article 2 of Vienna Convention:
"Succession of state is the replacement of one state by another in the
responsibility of International relation of territory."
• According to Prof Oppenheim:
"A succession of international persons occurs when one or more international
person, in consequence of certain changes in the letter's conditions.
• According to Brownlie:
"State succession arises when there is definite replacement of one state by
another in respect of sovereignty over a giver territory, in confirming with
international law.”

Origin of state succession

Rule of state succession was incorporated from the Roman Law by Grotious.
In Roman Law when a person dies his rights and duties are succeed by his
successor. This principle was a applied by Grotious in international law as
well. Later on, there were certain international treaties through which rules of
state succession were developed.

Kinds of state succession

State Succession is of two kinds

1. Universal Succession:
If the legal identity of a community is completely destroyed it will be called
universal succession.
Universal succession takes place under the following circumstances:
(a) When one state is completely absorbed in another state either through
subjugation or voluntary merger.
(b) When a state breaks into several parts and each part becomes a separate
international person or are annexed by surrounding international persons.
Examples:
a. Dissolution of Czechoslovakia
b. Division of USSR.

2. Partial Succession:
If the territory is lost while personality and legal responsibility remain
unimpaired, the process is described as partial succession.
Partial succession take place under the following circumstances;
(a) It takes place when a part of state revolts and after achieving freedom
becomes a separate international person. The breaking away of Bangladesh
and becoming international person is a glaring example of partial succession.
(b) When a part of a state is ceded to another state.
(c) When a sovereign state loses a part of its independence by joining the
federal state or when a state accepts the suzerainty or becomes a
protectorate of another state.
Examples:
a. separation of India from British
b. separation of Pakistan from India
c. separation of Bangladesh from Pakistan

THEORIES OF STATE SUCCESSION

Prof; D.P.O Connell classifies the theories of state succession into the
following categories;

1. The theory of universal succession:

According to this theory, succession takes place by virtue of legal principle
antecedent to the enacted law of any society, and therefor antecedent to the
positive law of nations. In this doctrine all the rights and duties of the
predecessor pass ipso jure to the successor as
elements of the estate. In this 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.

2. The theory of popular continuity:

According to this theory, a change in a sovereign state does not affect the real
elements.
Only fictitious elements in national organizations are affected. The treaties,
obligations will continue in new state. It is a legal continuation.

3. Organic Substitution theory:

Scholers like Von gierke and Max Huber supported this theory. According to
the theory the new state that comes into existence continues with the old rule
and regulations without any alteration. But, this theory too have been criticise
because of invalid practical application.

4. Self- Abnegation theory:

This theory was advocated by Jellinek in 1900. It is known as another version
of universal continuity theory. According to this theory the successor state
morally agrees to follow the rules of the international law and follow the
obligation towards other state.

5. Negative Theory:
This theory was established in the mid-19th century. According to the theory
the successor state is absolutely free from the right and obligation of the
predecessor state. The Successor state can form their own rules and
regulations, political, economic and social laws and also can create their own
international relations.

6. Communist theory:
According to this theory, the successor state is bound by certain rules and
regulations,
internal treaties debts and duties with the predecessor state. This theory is
completely contradictory to the negative theory. When the successor state
come into existence, they are bind by certain political and economic agendas.
For instance, the issues related to paying of debts, agreements of war and
peace, treaties etc.

7. Theories importing International Law:

According to this theory, international law, based on the positive practice of
state,
"directs the successor state to discharge certain of its predecessor's
obligations, and vests in it, certain of its predecessor's rights.”

This approach is useful with respect to the effect of change of sovereignty on

relationships, governed by international law, such as treaties.

Rights & duties arising out of state succession

The following rights and duties in case of state succession:

1. Membership of International Organisation

Being as a member of international organisation has its own significance, own
political visibility and diplomatic benefits. While dealing with the questions if
the newly formed state is entitled to be the member of the International
Organisation, it is said that the successor state have to fresh apply for the
membership.

A good example of India and Pakistan, when Pakistan separated from India
the UN said that they have to again apply for the membership.

2. Fiscal Debts
These refer to the financial obligations or debts of the predecessor State. The
successor State is bound to pay back the debts of the predecessor State.
This is because if the new State is enjoying the benefits of the loans, it
becomes a moral obligation as well to pay back the money.
Next, if there is a split in the State then the entire debt amount gets divided
between the predecessor and successor State in accordance with the territory
and population of each.

3. Political Rights and Duties

No succession takes place with regard to political rights and duties of the
States.
The peace treaties or the treaties of neutrality entered into by the previous
State aren’t binding on the new State.
But the only exception here is in case of human rights treaties since it would
be desirable for the new State to adhere to such terms.
Other than this, the new State would have to enter into new political treaties of
its own.

4. Local Rights
Unlike the political rights and duties, the local rights of the people do not
secede with the succession of the States.
These rights refer to the rights such as property rights, land rights or rights
relating to railways, roads, water etc.
In cases like these, the succeeding States are bound by the duties,
obligations and rights of the extinct State.
Case Law: German Settlement in Poland (1923)
“It was held that the private rights do not end by the change of sovereignty.”

5. Contracts:
Law relating to the contracts on succession of a state is not well established
state practice suggests that succession of contracts depends upon the
discretion of the succeeding state.
Case Law: West Rand Central Gold Mining Co. Ltd vs. King (1905)
Held: "It was held that the conquering state is not liable to fulfill the private
contractual obligations of the conquered state. International law does not
impose any obligations upon the conquering state to fulfill the obligations of
the conquered state

6. Concessionary Contracts:
Concessionary contracts mean the contracts through which certain
concessions are granted through contracts. The succeeding, states may or
may not be bound by such contracts e.g. digging of mines, laying of railways
etc.

7. Laws:
As far as laws of the former state are concerned, they continued to operate
until amended or changed

8. Damages for the Torts:

No. succession takes place in respect of unliquidated damage for torts. But if
the former state had accepted or had decided to pay the compensation, then
the succeeding state should pay the damages for torts.

9. Un-liquidated Damages for Breach of Contract:

Jurists are of the view that no succession takes place in respect of
unliquidated damages for breach of contracts But if. the former state had
decided to accept the liability to pay
compensation then the succeeding state should pay the same.

10. Nationality:
The nationals of the former state lose their nationality and become nationals
of the new state. Generally certain period is granted to the people to decide
about their nationality.

11. Succession to Property in Foreign States:

As regard the succession of property in foreign state jurists are of the view
that succeeding state becomes the successor of such property.

12. Public Property, Funds and Succession to Funds:

When one state succeeds de-facto to another it succeeds to all public and
proprietary rights of the extinct state.
13. Private Rights Property under Muslim Law:
The private of individuals and their relation to each other, unless specially
altered, remains the same and the private property is not generally
confiscated in breach of inter law.

14. Loss of International Personality:

If a state emerges into or is subjugated by another state, it losses its
international personality.