some aspects of the law of state succession

8/13/2019 Some Aspects of the Law of State Succession

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Some Aspects of the Law of State Successionby F. A. Vallat: A Reviewer

THE TERM STATE SUCCESSION

State succession is the term used (for lack of a better one) to describe what happens when one governmentreplaces another, either by peaceful or violent means

o It cannot be closely compared to succession in municipal law where rights and obligations aretransferred from one person to another by operation of law, not necessarily with the consent of theparties, and, usually, upon the demise of the predecessor.

o No case wherein a State has succeeded directly to another upon its demise: for if the people andthe territory remain substantially the same, the change is, in essence, one of government

Examples: One state is split into two Two states join together to form a single state Part of a territory of a state becomes independent

Where succession in municipal law implies that rights and obligations cease to be incumbent upon thepredecessor, there is often a question of the continuing liability of the old State in State succession.

o This is a problem, not strictly of state succession, but of continuing liability It must be understood that the term has no particular significance derived from municipal law

THE AUTHORS

This branch of international law has tended to suffer from over-simplification One class of authors support the theory of general succession, based on dicta by Grotius and Story

o Kents International Law: in the event of a State being divided into two or more independentsovereignties, the obligations which had accrued to the whole before the division are rateably

binding on the two parts; for, as Story says, The division of an empire creates no forteiture

[forfeiture?] of previously vested rights of property

The other extremeo This class of authors denies that there can be any succession to treaty rights and obligationso Keith concludes that the facts show clearly that all treaties go by the board but admits possible

exceptions

The majority of authors, on way or another, appear to hold the opinion that, in some cases, some classes oftreaty rights and obligations may pass by way of succession

One must distinguish between various types of treaties and treaty obligations

o At one end: treaties defining boundaries, which may be executed but are not executory, aregenerally agreed to bind the new State

o At the other end: treaties such as personal alliances between heads of State are not seen to bebinding upon the new State

Problem: decide which do and which do not bing the new State or, in appropriate cases, whether and, if so,how far, they are incumbent on the parent State

THE METHOD OF APPROACH

From the third class of authors: the must fruitful method of approach The law of State succession cannot be summarized in a single all-embracing rule Each case must be examined carefully, taking into account a number of factors FIVE MAIN QUESTIONS TO ASK:

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What is the nature of the change in statues from the point of view of the territory involved?2. In what manner does the new State come into existence?3. What is the nature of the treaty?4. Are there indications from the treaty itself as to what should happen in the event of State

succession?

5. What is the intention of the parties?


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THE NEED TO DISTINGUISH BETWEEN VARIOUS RIGHTS AND OBLIGATIONS

There is a need to distinguish, not so much between the nature of the treaties themselves, as between thenature of the rights and obligations they create different kinds of rights and obligations arising from the

same treaty

It would surely be a mistake to suppose that the whole of a treaty must stand or fall if a question ofsuccession should arise

ILLUSTRATIONS:

Portugal and Brazil

In 1825, Brazil was made independent of Portugal The Kings Advocate of Great Britain was of the opinion that Brazil continued to be underan obligation to

comply with treaties made between Portugal and Britain before 1825

o Assumed that the creation of separate kingdoms had resulted in the formation of a personal uniono Recognized that a distinction might be necessary from the nature of the subject

Need to examine the terms of each treaty A treaty not applicable to Brazil territorially before she became independent could not

pass to her by way of succession

Most like cases that have occurred in the British CommonwealthThe dismemberment of Colombia in 1830

Colombia was dismembered into 3 independent States: New Grenada (subsequently, Colombia), Ecuador,Venezuela

The Kings Advocate was of the opinion that rights and privileges, as far as His Majestys Government wasconcerned, were secured to His Majestys subjects resident in any part of the territories

The dissolution of the Union of Norway and Sweden

1905: Upon dissolution, both countries issued notes to foreign powers to the effect that treaties made withthe Union but specifically for one of them remained binding on that one only. Both Norway and Sweden

regarded themselves as bound by all the treaties of the Union, although after its dissolution they accepted

no responsibility for the other

o Great Britain: Hesitant to accept Asserted the right to examine de novothe treaties Considered that a treaty automatically lapsed on the dissolution

o Note: both the USA and France accepted the Norwegian and Swedish view as to the effect of thedissolution of the Union

The independence of a number of Dominions from the British Commonwealth

1919: acquisition of new independence and became persons in international law No arrangements made as to treaties General rule: Dominions inherited treaty rights and obligations of all kinds which had any local or

territorial application to them

o Including treaties which referred to any of the Dominions expressly and to treaties of a generalcharacter which applied to the whole Empire

The position of the Dominions is specialo Connexion with the crown has remained intact: an obligation entered into on behalf of the

dominion continues because it remains an obligation incumbent upon the crown

Interesting point: once a Dominion has become independent albeit under the Crown, no one would contendthat upon achieving the status of a republic, whether within or without the British Commonwealth, treaty

obligations would cease to adhere to it. The result is that by achieving complete separation from the Crown

in two stages, a member of the Commonwealth may enjoy succession to treaty rights and obligations in

international law. If so, it may be wondered if the same result may not be achieved when a part of the

Commonwealth becomes a separate and independent State in one step.


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India, Pakistan, and Burma

August 15, 1947: British India was divided into India and Pakistan, both acquiring full status asindependent members of the British Commonwealth

An agreement was drawn up with the view taken that Pakistan was a new State breaking off from India,whose previous international status continued

o Membership in international organizations should devolve solely upon India with Pakistan takingthe necessary steps to apply for membership in any international organization it chooses to join

o Rights and obligations having an exclusive territorial application to an area comprised in thedominion of India were to devolve upon India and the same was true for Pakistan

o Rights and obligations under all international agreements to which India was a party were todevolve upon both India and Pakistan and would, if necessary, be apportioned between them

The agreement was based upon what is called the generally accepted Territorial Application Theory Pakistan regards itself as a signatory to:

o The Hague Convention, 1899 and 1907o The Convention for the Suppression of the Traffic in Women and Children, 1920o The Convention for the Suppression of Traffic in Women of Full Age, 1933o Prisoners of War Convention, 1929

All of which India (or in the case of the first, UK) ratified Burma, in 1947, separated from Indian administration and left the British Commonwealth

o Agreement between the Government of the United Kingdom and the Provisional Government ofBurma

The obligations and responsibilities and the rights and benefits under internationalinstruments in so far as they had application to Burma should devolve upon the

Provisional Government

Another example of the territorial application theoryThe Independence of Indonesia in 1949

One case outside the British Commonwealth 1949: Indonesia acquired independence from the Netherlands and became a republic doctrine applied: the treaty rights and obligations of the former kingdom of the Netherlands should be

considered as the rights and duties of the Republic except where treaties, on interpretation, would be

found to be inapplicable in the new circumstances

In 1950, the Attorney-General of Singapore stated: the Republic of the United States of Indonesia hassucceeded to the rights and obligations of the Kingdom of the Netherlands under the Anglo-Netherlands

Extradition Treaty of 1898 in respect of Indonesia and that the said Treaty now applies between His

Majestys Government in the United Kingdom and the Republic of the United States of Indonesia

o Relevance: H.M.G. did not shrink from the consequences applied to India and Pakistan and Burmawhen the question of succession arose in relation to a foreign State

CONCLUSION

The evidence does point to the possibility of state succession to treaty righs and obligations in the limitedclass of cases which we have been considering

We can say with some confidence that the new State does not inherit a right of membership in internationalorganization and that the membership of the parent state continues

o Membership depends upon the continuing personality of the pre-existing State In general, treaty rights and obligations of the parent State are not affected except so far as they relate to the

territory of the New State

It is a wise precaution to clarify the position by express agreement wherever possible that, for this purpose,the test of territorial application is a fair and reasonable one.

There is no basis for saying that a treaty which has not previously applies to a territory becomes applicableto it merely because the territory achieves independence.

some aspects of the law of state succession

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