Unit 3: international law

1.state sucession ?
Before 20th Century the political situation of the world was completely different. So as the
method of government differed too along with rules and regulations. Those were the era of
kings and kingdoms and annexation of the state was very common. There was no rules or
treaties as to how the relation between the state will be governed. One king would dominate
another’s kingdom out of power, thus resulting in the formation of new state continuously.
This situation resulted in the creation of various problems like frequently changing rules and
regulations, nationality, political and economic agendas and so on.
State succession under international Law is indeed a perplexing topic to discuss. After world
war 2, state succession has become an extremely essential subject. As more than 100 new
state came into existence due to decolonisation. Despite of failure to codify state succession
law, there seems to be an emerging consensus in the recent practice among the learned
scholars suggesting the state should try to manage legal relationship at all level.

As the Act is not codified, this topic is not governed by any specific method or rule and
because of this complexity arises a lot. This topic takes into consideration various issues with
respect to rights, duties, nationalities of the people and also issues related to properties,
treaties, relation with international organisations and debts of the new successor state.

State succession under International Law

State succession can be defined as “The replacement of one state by another in the
responsibility for the international relation of territory” Article 2(1)(b) of the Vienna
convention act, 1978 . In another word when the state loose whole or part of its territory
which results in the formation of one or more new states, and the relation of the new
emerged state with the international state .

Circumstances of State Succession

State succession can arise in a number of defined circumstances, which mirror the ways in
which political sovereignty may be acquired. They are:

 Decolonization of all or part of an existing territorial unit: This refers to

situations where the nation partially or completely overcomes itself from the
holding of a superior nation.
 Split:This refers to a situation when the territory of the predecessor State becomes
the territory of two or more new States who take over it.
 Secession: This refers to a situation where a part of the State decides to withdraw
from the existing State.
 Annexation: This refers to a situation where a State takes possession of another
State.
 Merger: This refers to the fusion of two or more free States into a single free State.
Types of State Succession
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. There are two types of State succession and they are discussed below:

Universal Succession

This is also referred to as Total Succession. When the entire identity of the parent State is
destroyed and the old territory takes up the identity of the successor State, it is known as
Universal Succession. This can happen in cases of:

 Merger
 Annexation
 Subjugation
In certain cases of universal succession, the old State gets divided into multiple States. The
dissolution of Czechoslovakia is an example of universal succession. The new States of the
Czech Republic and Slovakia are both successor States.

Partial Succession

Partial Succession occurs when a part of the territory of the State gets severed from the
parent State. This severed part now becomes an independent State. This can occur when
there is a civil war or a liberalization war.

There are two important examples of partial succession.

 One is the separation of Pakistan from India.

 The other is the separation of Bangladesh from Pakistan.
The existing States continued with their legal obligations and duties while the new States got
their own recognition and carried no rights or duties of the parent States.

Theories of State Succession

Universal Succession Theory

This is the oldest theory of succession propounded by Grotius, using the Roman analogy of
succession on the death of any natural person. According to this theory, the rights and duties
of the old State i.e., the predecessor State pass on to the new State i.e., the successor State
upon succession without any exceptions and modifications.

In fact, there are two justifications behind this theory.

 1. First that the State and the Sovereign gain all their power from God and a mere
change in Government shouldn’t cause any change in the powers.
2. Second, it is permanent and nothing can cause it to secede.
The application of this theory can be seen in cases of fusion in the 20th century. The fusion
of Syria and Egypt, Somali Land and Somalia, Tanganyika and Zanzibar are examples of
this. However, this theory failed to get any attention from the majority of States from the
world and has also been criticized by scholars from the world due to its Roman law analogy,
a poor distinction between succession and internal change in governments, etc.

Popular Continuity Theory

The Popular Continuity Theory can be described as another version of the Universal
Succession theory that was propounded by Fiore and Fradier following the unification of the
German and Italian nationals. According to this theory, the State has a

 Political personality: It basically refers to the rights and obligations of the State
towards the government.
 Social personality: lt basically refers to the territory and the population of the
State.
Hence, upon succession, the political personality gets changed whereas the social personality
remains intact. So, a State succession would not alter the rights and duties of the populace.

However, this theory has not found its application in any country outside Europe and also
has been criticised on the grounds that it functioned according to the municipal laws i.e, the
local laws, which is why it was difficult to understand the effect of State succession using
this theory.

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.

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.

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.

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.

Rights and Duties arising out of State Succession

The laws regarding State succession are still in a very nascent stage and keeps evolving with
the changing times. As seen above, along with the territorial and power transfers, there are
transfers with regard to duties too. This section gives a brief idea about the transfer and non-
transfer of political as well as non-political rights and duties.

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.

Rights of Natives or 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.

Fiscal Debts (State or Public 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.

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Effect of State Succession on Treaties
The law on State succession with regard to treaties has for a long time been dominated by
two principles in general:
  One is the alleged principle of universal succession and
 The other is the tabula rasa approach i.e., clean State doctrine not granting State
succession to treaties.
While the former principal keeps in mind, the interests of third States regarding upholding or
not upholding treaties, the latter favours a rather strict understanding of sovereignty i.e.,
functions only according to the interests of the successor and predecessor State. Neither of
the two principles can, however, offer a practical solution for various scenarios where State
succession takes place. Accordingly, under customary international law more nuanced
solutions have been developed in the past or, at the least, are in the process of being formed.

The Vienna Convention on State Succession provides that:

 In case of the border treaties, no such significant changes would be observed and
the treaties would pass to the successor State.
 This is done keeping in mind the greater interests of the International Community.
Similarly, other forms of local treaties related to land, territory, etc. would also pass
on to the successor State upon succession.
 Treaties relating to Human Rights are passed on to the successors with all their
rights, duties and obligations. In the case of treaties relating to peace or neutrality,
no succession takes place.
Effect of State Succession on UN Membership
When Pakistan was separated from India, it claimed itself to be a member of the United
States since India was a member of the UN. The then Secretary-General of the UN had then
brought up the following:

 From the perspective of International Law, the circumstance is one in which part of
the State breaks off from the original State.
 When Pakistan separated from India, there was no change in the status of India.
India continued with all its treaties, rights and obligations.
 On the other hand, Pakistan didn’t have any of those rights or obligations and of
course, had lost the UN Membership.
 In International Law, the situation is similar to the separation of the Irish Free State
from Britain, and Belgium from the Netherlands. In these cases, the portion which
separated was considered a new State, and the remaining portion continued as an
existing State with all the rights and duties which it had before.
Thus, in the case of succession, the UN Membership doesn’t get transferred.

Conclusion
Given the current status of the law with regard to the idea of State succession, it can be very
well inferred that the law needs a lot more evolution and clarity. Even though lately, it has
been seen that there has been some consensus on certain levels and that succession doesn’t
necessarily lead to disruption in all legal practices and methods there is a lot more work that
needs to be done in this field.

3.b. Short Note: Rights and duties out of State Succession

Ans: A succession of international person occurs when one or more international persons
take place of another international person, in consequence of certain changes in the latter’s
condition. Ordinarily the practice of states shows that no general succession takes place.
However, most jurists agree that when an international person is extinct or disappears then
some of its rights and obligations are succeeded by other international persons which take its
place.

The rights and duties out of state succession are as follows:

1. Political Rights: No succession takes place in respect of political rights and duties, hence
succeeding state are not bound by the political treaties of the former state such as treaties of
peace or neutrality.

2. Local Rights & duties: A genuine succession takes place in respect of local rights and
duties, such as land, rivers, roads, railways etc…

3. State Property: Art. 11 of the Vienna Convention of State Property Archives and Debts,
1983 provides that unless otherwise agreed the passing of State property will take place
without compensation. Art. 12 provide that property, rights, and interest owned by a third
state should not be affected by a succession of a State. Art. 13 ask the predecessor state to
take all measures to prevent damage or destruction to State Property which passes to
Succession state. Art. 15 allows State succession of newly independent state– bilateral
treaties– shall not infringe the principle of the permanent sovereignty of every people over its
wealth & natural resources.

4. State Archives: Art. 25 of the Vienna Convention of State Property Archives and Debts,
1983 lays emphasis on preserving the integral character of groups of State archives of the
predecessor State. Art. 28 provides passing of appropriate reproduction of state archives of
the predecessor state to a newly independent successor state.

5. State or Public Debt– Art. 36provides that the succession of a State does not as such affect
the rights and obligations of creditors. When successor state is newly independent state, no
debt shall pass on to the new state unless an agreement between two states provides
otherwise. Art. 38 provides that it shall not infringe the principle of the permanent
sovereignty of every people over every people over its wealth & natural resources nor shall
its implementation endanger the fundamental economic equilibria of newly independent
state.
 6. Contracts: The majority of jurists are of the view that the succeeding state should be
bound by the contract entered into by the extinct State. The Case: West Rand Central Gold
Mining Co. Ltd Vs. King is a suitable case to explain the succession for contracts. In this
case West Rand Central Gold Mining Co. Ltd was registered company in England is engaged
in the work of digging of gold mines. Gold parcel were seized by South African Republic. It
was the responsibility of South African Republic. Later on war broke out between this state
& Britain. Conquered by Britain it was held that the succeeding state was entered to decide
whether it will accept the financial obligations of the former State. Until it accepts the
financial obligation of the former state, it will not be bound by them.

7. Concessionary Contracts– It means the contracts through which certain concession such as
digging of mines, laying of railways, etc.., are granted. It is of local nature & succeeding
state bound by it.

8. Laws: Civil law continues until it is changed by the succeeding state.

9. Unliquidated damages for torts: No succession takes place. But state will bound if the
former state has accepted or had decided to pay compensation

10. Nationality: The nationals lose their nationality at the extinction of the state and become
the nationals of the new international person. Such national are given certain period within
which they has to decide as to continue loyalty towards the former state or to accept the
citizenship of succeeding state.

What is meant by State Responsibility? Explain briefly the state responsibility in different
fields.

Introduction
State responsibility is incurred when one State commits an internationally
wrongful act against another. For instance, Article 2(4) of the UN
Charter prohibits dictatorial non-intervention by stating that every State
is under a legal obligation not to use or threaten to use force against
others. However, non-intervention is not merely limited to the prohibition
of the usage of force. Any form of coercive interference in the internal
affairs of a State would invite State responsibility. As Oppenheim’s
international law puts it, “the interference must be forcible or dictatorial,
or otherwise coercive, in effect depriving the State intervened against of
control over the matter in question. Interference pure and simple is not
intervention”.

Nicaragua v. United States

A landmark case in this regard is Nicaragua v. United States; the case

concerning military and paramilitary activities in and around Nicaragua. It
involved the United States supporting rebellion groups against the
Nicaraguan government. The Court found in its verdict that the United
States was “in breach of its obligations under customary international law
not to use force against another State” and “not to intervene in its
affairs”.

Introduction:

In international relations, the violation of a legal right of one state by another state gives rise
to international responsibility of the wrong doing state towards the wronged state. The
functions of the rulers of State responsibility is to determine the legal consequences of the
breach of the rules of International Law by one State which has resulted in injury to another
State in damage to the dignity or prestige of another state.

Meaning of the term ‘State Responsibility’

Often it is said that the sovereign has no obligation under law. This statement is true only in
respect of the subjects of the sovereign because a state may change its law at its will and may
thus bring about changes in its obligations. A state has certain obligations under International
Law. “The state responsibility concerning international duties is, therefore, a legal
responsibility, for a state cannot abolish or create international law in the same way that it
can abolish or create municipal law.” The rules of international law as to State responsibility
concern the circumstances in which and the principles whereby the injured state becomes
entitled to redress for the damage suffered.

States Responsibility in different fields:

It is an obligation of a state to prevent its own subjects as well as foreign subjects living
within its territory from committing such acts which may cause injury to other state.
However, if any wrongful act is done by an individual or group individuals, a state to which
they belong is held responsible for their acts. State is responsible not only for the wrongful
acts done by its organs but also responsible for the acts of the individual.

1. International Delinquency

Delinquency means wrong doing; an action going against law. International delinquency is a
wrongful act committed by a state on the aliens of another state directly or indirectly.
According Prof. Oppenheim, “Every neglect of an international duty constitutes an
international delinquency and the injured State can, subject to its obligations of pacific
settlement through ‘reprisals’ or even war, compel the delinquent State to fulfil its
international duties.” In practice, most cases of responsibility, at least before international
tribunal, arise out of wrong alleged to have been committed by the state concerned. By
wrong in this connection meant the breach of some duty which rests on a state at
International Law and which is not the breach of purely contractual obligation. A person who
goes to live in the territory of a foreign state must submit to its laws; but, that is not to say
that certain duties under international law in respect to the treatment of that person do no
bind the state. Examples are the duty of the state to provide proper judicial remedies for
damage suffered, and the duty to protect alien citizens from gratuitous personal injury by it
officials or subjects.

Notion of Imputability

If, an agency of state causes injury to citizen of another state, former state will be liable to
the latter state if the said act in law is imputed to the state. Imputability depends upon two
conditions.

They are

a. Conduct of a state organ or official in breach of obligation under international law and

b. According to international law, breach will be attributed to the state.

A state becomes internationally responsible for the breach only if breach is imputable to the
state.

2. State Responsibilities for the acts of aliens

It is generally agreed that aliens living in a state should be given same right which are given
to the citizens of that state. It is responsibility of state to protect the rights of aliens in the
same way as they protect the rights of their own citizen.

State responsibilities for aliens are as follows:

a. State responsibility for the acts of individuals If a citizen of a state caused damage or harm
to an alien, that alien gets the rights to file a suit for the compensation according to the law of
that state. In case of a state tribunal is arbitrary and against justice, the alien may approach
his home state to settle the matter through political means so as to ensure that the matter is
decided in accordance with the principle of international law.

b. State responsibility for the acts of Mob Violence A state may be held responsible for the
harm caused to the alien by mob violence only when it has not made due diligence to prevent
it. But, this is a very uncertain and ambiguous principle because ‘due diligence’ to prevent
mob violence depends upon the time, fact and circumstances. The responsibility of the state
also extends to the officers or servants of the international organization.

Case: Reparation for Injuries Suffered in the Service of the United Nations In this case Count
Bernadotte along with a French observer was appointed by the United Nations Security
Council to mediate in the conflict between Arab and Jews in Palestine. On Sep 17, 1948,
when he was in the area of Jerusalem, occupied by Israel, he and the French observer were
murdered. The question arose whether the United Nations could claim reparation for his
death. The matter was referred to the International Court of Justice for its advisory opinion.
The World Court held that United Nations is an international person and under international
law it has rights and duties; that it can claim damages and compensation for the injuries or
loss suffered by the persons working under its service or auspices. The Government of Israel
paid the money in the form of compensation but made it clear that it did not accept any
obligation under international law in this connection.

c. The state responsibility for the acts of insurgents The general rule is that it is the
responsibility of the state to try to prevent the violent acts of revolutionaries. According to
Fenwick, the state responsibility for the acts of insurgents is different from state
responsibility for the acts of mob violence. In his words, “the very existence of organized
revolution raises a presumption of ‘due diligence’ on the part of the state for suppressing it
since the Government had an immediate interest in such an open attack upon its authority.”

Calvo Doctrine It was propounded by Mr. K. Calo of Argentina. In his view during civil war
the state is not responsible for the losses suffered by alien persons because if the
responsibility is accepted, big nations will get an excuse to intervene in the weaker states.
Many states, such as, America and England do not accept this doctrine. They point out, since
the revolt or insurrections are frequent in the states, the presumption that the states made
‘due diligence’ becomes weak.

3. For the acts of governmental organs A state is responsible for the acts
performed by its representatives or high officials towards alien persons. The
state will be responsible only to the extent when the officials concerned act
beyond their powers and jurisdiction. Similarly the state is responsible for the
acts of its judicial organs.

4. Contracts with foreigners As a matter of fact, the state is not responsible under
international law if there is a breach of contract entered into by a state with aliens. However,
the alien person may avail the local means available to him in the law of the state concerned.
If he fails to get the desired remedy, he may approach his home state to pursue the matter.

5. For the Breach of Treaty or Contractual Obligations State responsibility as a result of the
breach of treaty will depend upon the provisions of the treaty. If there is a breach of treaty
obligations, the state concerned shall be responsible to pay the compensation. Case:
Chorzow Factory (Indemnity) Case The permanent court of justice held that, it is a principle
of international law that the reparation of wrong may consist in an indemnity corresponding
to the damage which the national of the injured state have suffered as a result of the act
which is contrary to international law. Although the rights of the individuals are different
from those states, yet they may be taken into account while assessing the damages.

6. In respect of Expropriation of Foreign Property There is a great controversy in regard to

the expropriation of foreign property situated in a state. However, in the modern period,
significant changes have taken place in this connection. Till the 19th century, if any state
expropriated the foreign property it was considered to be the violation of international law
making the said state liable for the same. But, in the modern period, in view of the complete
control of states over their Economic system and in consequence of nationalization of
different industries, it has become difficult to recognize such expropriation as the violation of
international law. It may be noted that the term ‘Expropriation’ includes nationalization and
confiscation of property. Case: Anglo-Iranian Oil Co. Ltd vs. Jaffrate It was held that, on the
basis of practice, principles and decided cases, it may be that expropriation of foreign
property may be valid only when there has been no irregularity or discrimination with the
foreigners.

7. Acts of Multinational Corporations There is lack of definite international law in respect of

liability of transnational or multinational corporations. The charter of Economic Rights and
Duties adopted by the General Assembly on 12th Dec, 1974, recognizes the right of each
state “to regulate and supervise the activities of transnational cooperations within its national
jurisdiction and take measures to ensure that such activities comply with its laws, rules and
regulations and conform to its economic and social policies. But developed countries such as
U.S., U.K., Federal Republic of Germany and Japan voted against this.

Case: M.C. Mehta Vs. Union of India (Oleum Gas Leak Case) The Supreme Court held “the
enterprise must be under an obligation to provide that the hazardous or inherently dangerous
activity, in which it is engaged must be conducted with the highest standard of safety and if
any harm results on account of such activity the enterprise must be absolutely liable to
compensate for such harm and it should be no answer to the enterprise to say that it had
taken all reasonable care and that the harm occurred without an negligence on its part. The
enterprise is strictly and absolutely liable to compensate all those who are affected by the
accident and such liability is not subject to any of the exceptions which operate vis-à-vis the
tortuous principle of strict liability under the rule of Ryland vs. Fletcher.

Conclusion: The rules of International law as to state responsibility concern the

circumstances in which and the principles whereby, the injured state becomes entitled to
redress for the damage suffered. The wrongs which give rise to state responsibility may be
various kinds, like original responsibility and vicarious responsibility. The breach of duty
may be either an act or omission. Thus, international responsibility may be occurred by
direct injury to the rights of a state and also by a wrongful act or omission which causes
injury to an alien.

Legal consequences of State responsibility

Where there is a right, there is a remedy. When a State commits a
breach of international law, it becomes liable to make good the losses
faced by the injured parties. The first consequence is the cessation of the
wrongful act, and the second is reparation.

Cessation of the wrongful act

International law requires the accused State to cease committing the
wrongful act and to offer appropriate assurances and guarantees on non-
repetition.

Reparation

The accused party shall be responsible to make reparation to the injured

parties for its wrongful acts. The accused party is liable to make
restitution, i.e., materially revert the original party back to the same
status before the wrongful act. If restitution is not possible, the accused
party shall be liable to make compensation. Compensation involves the
making of monetary reparation, with an aim of reverting the injured
party to its State prior to the occurring of the act.

Another form of reparation is satisfaction. Satisfaction is considered a

more appropriate remedy than compensation, in cases of moral damage.
It may include any reasonable act demanded by the injured State, such
as the acknowledgement of the wrongful character of the act, the
punishment of guilty officials, nominal damage, an official apology, etc.