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STATE SUCCESSION

1. State succession occurs when a State ceases to exist and a new State is formed
within the territory of the existing State. When a succession situation arises, the
point of chief legal interest is the effect if any, on the international rights and
obligations of the State or States concerned.
2. (a) A State which has replaced another is called the succession State or New
State. The term new state signifies a State which has arisen from succession
where a territory, which previously formed part of an existing State, has become
independent.
(b) The State that has been replaced is known as the parent or predecessor
State.

Kinds of Successions

3. Two types:
a) Universal Succession or Total: Where the personality of the predecessor
State is completely destroyed, and is observed by another international
person. May take place either through voluntary merger or through
annexation or through subjugation.
b) 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. Takes place 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.
4. Universal as well as Partial succession may take place either voluntarily or by
revolt. When the replacement I peaceful, disruption of legal continuity is
minimized by mutual adjustment. Once such method is the conclusion of
inheritance or devolution agreement which is concluded between the
Predecessor and Successor State. Such agreements declare the affirmative
attitude towards the Successor State of the Predecessor State.
5. Succession of State is different from succession of govt. In the latter, personality
of a State, in contrast to case of succession of State is not affected, but a
change occurs either in the organization of the Govt or in some constitutional
structure of the State. The continuity of a States personality is neither disrupted,
nor does it bring about any juridical change in the State. Its rights and obligations
are continued by virtue of continuity of personality.
Theories of State Succession

6. Universal Succession Theory. According to this theory, change of rules


whether effected by cession of territory, by revolution, or by death, cannot involve
the replacement of one right or duty by another, but only a replacement of their
subjects. Succession takes place by virtue of a legal principle antecedent to the
enacted law of any society, and therefore antecedent to the positive law of
nations.
7. Theory of popular Continuity. As per this theory, change of sovereignty involves
no more than a change in the fictitious element in political organization, the real
element surviving intact. Obligations of a political character, such as, treaties
attach to the element of sovereignty and lapse with it, obligations of patrimonial
character, incl most economic and judicial matter attach to society and remains
attached.
8. Theory of Organic Substitution. The theory emphasizes the nature of change
itself than the legal effects of political change. When States appear and
disappear, the people and territory are integrated in a new organic being. There
is a change in the judicial elements of organization, which does not occur in
cases of change of govts. In the words of D P OConnell,this means the
successor State takes over all the rights and duties of its predecessor save those
which are essentially political, if it substitutes itself factually in the property of its
predecessor it must also substitute itself in the encumbrance upon that property.
9. Theory of Self-Abnegation. The State is at liberty to take over or reject whatever
suits it in the previous legal order. It integrates within its own legal order all
existing law which is compatible therewith and which is not expressly repealed.
This theory emphasizes continuity rather than disruption on the tacit consent of
all the parties concerned.
10. Negative Theory. 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. The Successor
State exercises jurisdiction over the territory not by virtue of a transfer of power
from its predecessor, but because it has acquired the possibility of expanding its
own sovereignty in the manner dictated by its own will.
11. Theories importing IL. According to this theory, IL based on the positive practice
of States directs the Successor State to discharge certain of its predecessors
obligations and vests in it, certain of its predecessors rights. This approach is
useful with respect to the effect of change of sovereignty on relationship
governed by IL, such as treaties.
12. Communist Theory of State succession. The main emphasis under this theory is
that a successor State is unencumbered by the economic and political
commitments of the predecessor.
Consequence of State Succession
13. Treaties. Political or personal 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.

Commercial treaties also are not binding on the successor State and are
generally extinguished.. Only those commercial treaties are assumed which can
be reconciled with the new order of things.

Administrative treaties such as treaties of judicial assistance, avoidance of


double taxation and extradition do contain political elements, but they are
different from political treaties. 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.

Dispositive treaties or real or localized treaties create rights in rem. These create
rights which are of permanent nature and are independent of the personality of
the State exercising sovereignty. Demarcation of boundary lines is an example of
dispositive treaty. State servitudes, a term used to denote exceptional restrictions
made by a treaty or otherwise on the territorial supremacy of a State by which a
part or whole of its territory is in a limited way made to serve a certain purpose or
interest of another State.

Multilateral treaties are generally continued by the successor State because


these are conclude mostly on general subjects which are beneficial to almost all
the States of the international community.

14. Political Rights and duties. No succession take place in respect of political rights
and duties. The succeeding State is not bound by the political treaties of the
former State.
15. Local rights and Duties. A genuine succession takes place in respect of local
rights and duties in respect of land, rivers, roads, railways etc., succeeding to the
rights and duties of the former State.
16. Contracts. Practice suggests that this depends on practice of successor State. IL
does not impose any obligation upon the conquering State to fulfill the obligations
of the conquered State. Eg. West Rand Gold Mining Co. Ltd v. King.
17. Concessionary contracts. Concessionary contract means the contract through
which certain concessions, such as, digging of mines, laying of railways, etc are
given through contracts. These are of local nature. Succeeding States may or
may not be bound by such concessionary contracts and would depend on the
facts and circumstances of each concessionary contract.
18. Public debts. Part IV of the Vienna Convention on State Property, Archive and
Debts, 1983 deals with financial obligations of predecessor State toward another
state or an international organization. Art 36 of the Convention provides that the
successor of a State does not as such affect the rights and obligations of
creditors. When the successor Sate is a newly independent State, no State debt
shall pass to the new State, unless an agreement between the two States
provides otherwise.
19. Succession to State Archives. Art 25 of the Vienna Convention on State Property,
Archive and Debts, 1983, lays special emphasis on preserving the integral
character of grounds of States archives of the predecessor State.
20. Unliquidated damages for torts. No succession takes place in this respect.
21. Nationality. Nationals of predecessor State as a rule loose their nationality at the
extinction of the State. They become nationals of the successor State. Gen, such
nationals are given a certain period within which they are to decide whether they
continue their loyalty towards the former State or accept the citizenship of the
succeeding State.
22. Succession to property in foreign State. Part II of the Vienna Convention on State
Property, Archive and Debts, 1983, deals with State Property. Art 11 provides
that unless otherwise agreed, the passing of State property will take place
without compensation. Art 12 provides that property, rights and interests owned
by a third State should not be affected by succession of states. Art 13 asks the
predecessor State to take all measures to prevent damage or destruction to
State property which passes to successor State. Art 15 allows special ref to be
made bilateral agreements between the predecessor State and the newly
independent State, without infringing the principle of permanent sovereignty of
every people over its wealth and natural resources.
23. Law. Civil laws continue till it is changed by the succeeding State.

Succession regarding membership of the U.N.

24. This question arose after the partition of India into India & Pakistan. India was
originally the member of U.N. having signed the UN Charter of San Francisco.
Later it was ratified by the Govt of India.
After partition Pakistan claimed since it was part of India originally, it should get
the membership of UN in succession automatically.
The GA of the UN rejected the claim of Pakistan. According to the GA, when a
State becomes a international person, it can become the member of the UN only
after it is admitted in accordance with the provisions of the Charter, i.e . a State
should apply for the membership and be admitted by the decisions of the GA by
2/3 majority of the members present and voting on the recommendations of the
Security Council.
Thus, the principle of succession does not apply in case of the membership of
the UN.