Succession to rights and Obligations | Public International Law - CLAT PG PDF Download

Introduction

Political entities are not fixed. They can change over time, with new states emerging and old ones vanishing. Federations, mergers, dissolutions, and secessions occur, and international law must adapt to these changes with minimal disruption and instability. Since the end of the Second World War, there has been a significant increase in the number of independent countries. Article 2(1)(b) of the Vienna Convention on the Succession of States in respect of Treaties, 1978, defines state succession as the replacement of one state by another in managing the international relations of a particular territory.

Circumstances of State Succession

State succession can occur under various specific circumstances that reflect how political sovereignty is acquired. These include:

• Decolonization: This involves the process by which a nation frees itself from the control of a superior nation, either partially or completely.
• Dismemberment: This occurs when the territory of an existing state is divided, and the predecessor state's territory becomes the territory of two or more new states.
• Secession: This refers to a situation where a part of a state decides to withdraw and become independent from the existing state.
• Annexation: This involves one state taking control of another state’s territory.
• Merger: This refers to the combination of two or more independent states into a single state.

Types of State Succession

State succession involves the disappearance of a recognized entity, either entirely or partially, replaced by another authority, leading to challenges regarding the transfer of rights and obligations. There are two main types of state succession:

Universal Succession
Also known as Total Succession, this occurs when the entire identity of the parent state is obliterated, and the successor state adopts the identity of the old territory. This can happen in cases of:

• Merger
• Annexation
• Subjugation

In some instances of universal succession, the old state may split into multiple states. An example of this is the dissolution of Czechoslovakia, where the new states of the Czech Republic and Slovakia both became successor states.

Partial Succession
Partial Succession happens when a portion of a state's territory is detached and becomes an independent state. This can occur due to events like civil wars or liberation movements.

Various Theories of State Succession

• Proposed by Grotius, this theory suggests that the rights and duties of a predecessor state automatically transfer to a successor state without exceptions.
• Justifications include the belief that state power comes from God and a change in government should not alter this.
• Examples of this theory in action include the fusion of countries like Syria and Egypt, and Tanganyika and Zanzibar.
• The theory has faced criticism for its Roman law basis and lack of distinction between succession and internal government changes.

Popular Continuity Theory

• Similar to Universal Succession, this theory, proposed by Fiore and Fradier, focuses on the political and social personalities of the state.
• Upon succession, the political personality changes, but the social personality, which includes territory and population, remains the same.
• This theory has been criticized for its municipal law foundation and lack of application outside Europe.

Organic Substitution Theory

• Introduced by Max Huber, this theory argues that the rights and duties of a state persist even after a succession.
• It emphasizes the organic bond between the people and territory, asserting that this bond remains intact despite the change in sovereign.
• Similar to the dissolution of a social institution, the successor state takes on the personality of the predecessor state.
• Like other theories, it has faced criticism for its lack of practical application.

Self Abnegation Theory

• Proposed by Jellinek in 1900, this theory aligns with the universal continuity perspective.
• The successor state commits to following international law and fulfilling obligations to other states.
• While it views the performance of obligations as a moral duty, it also grants other states the right to insist on compliance.
• If the successor state refuses, recognition may be withheld or made conditional on accepting predecessor commitments.

Clean Slate Theory

• Developed in the 19th and 20th centuries, this theory emphasizes self-determination and the successor state's freedom from predecessor obligations.
• Upon succession, the new state is not bound by the predecessor's commitments and can establish its own sovereignty.

Communist Theory

• Contrary to the Clean Slate Theory, this theory holds that a successor state inherits the economic and political commitments of the predecessor state.
• Political commitments include treaties related to peace, war, and territory, while economic commitments involve debts and financial obligations.

Rights and Duties Arising Out of State Succession

The laws surrounding state succession are still in their early stages and continue to evolve. This section provides a brief overview of the transfer and non-transfer of political and non-political rights and duties during state succession.

Political Rights and Duties

• Political rights and duties do not transfer during state succession. Treaties related to peace or neutrality from the previous state are not binding on the new state.
• The only exception is for human rights treaties, which it is preferable for the new state to adhere to.
• Aside from this exception, the new state must establish its own political treaties.

Rights of Natives or Local Rights

• Unlike political rights and duties, local rights of individuals do not cease with the succession of states.
• Local rights include property rights, land rights, and rights related to infrastructure such as railways, roads, and water.
• The succeeding state is obligated to uphold the duties, obligations, and rights of the extinct state in these cases.

Fiscal Debts (State or Public Debts)

• Fiscal debts refer to the financial obligations or debts of the predecessor state.
• The successor state is responsible for repaying the debts of the predecessor state.
• This obligation arises because the new state benefits from the loans and has a moral obligation to repay the money.
• In cases of a split in the state, the total debt is divided between the predecessor and successor states based on territory and population.

Effect of State Succession on Treaties

• The law on state succession concerning treaties has traditionally been influenced by two principles: universal succession and the clean slate approach.
• Universal succession considers the interests of third states in upholding or not upholding treaties, while the clean slate approach emphasizes the sovereignty interests of the successor and predecessor states.
• Neither principle offers practical solutions for various scenarios of state succession.
• Customary international law has developed more nuanced solutions for these situations.
• The Vienna Convention on State Succession states that:
• Border treaties would remain effective and pass to the successor state, reflecting the interests of the international community.
• Local treaties related to land and territory would also transfer to the successor state upon succession.
• Human rights treaties would be inherited by successors with all associated rights, duties, and obligations.
• Treaties concerning peace or neutrality would not be subject to succession.