• AUTHOR :
This article is written by Kamaldeep kaur, at institute of Law, Kurukshetra University, Kurukshetra.
• INTRODUCTION :
State Succession in the international law means the process by which a new state emerges or an state that exists undergoes significant changes, resulting from the factors like decolonization, dissolution, secession or the formation of a new state. It refers to the succession of one state with another and the transfer of rights and obligations.
• WHAT IS STATE SUCCESSION UNDER INTERNATIONAL LAW :
1. One Jurist says that ,the succession of international person takes place when one or more international persons take place of another international person, due to certain changes in the condition of latter.
2. According to Article 2 (1)(b) of Vienna Convention Act, 1978 : State succession can be defined as “The replacement of one state by another in the responsibility for the international relations of the territory.
• KINDS OF STATE SUCCESSION :
State succession are of two types – (1) Universal Succession, and (2) Partial Succession.
1. Universal Succession : Universal Succession takes place under the following circumstances –
(a) when a state is completely merged with another state; either through subjugation or voluntary merger;
(b) when a state seperates into several parts and each part becomes a different international person.
2. Partial Succession : It takes place –
(a) when a part of the territory of the state gets severed from the parent state. This severed part now becomes an independent state.
(b) when there is a civil war or liberalization war.
Examples of Partial Succession :
(1) Separation of Pakistan from India;
(2) Separation of Bangladesh from Pakistan.
• RIGHTS AND DUTIES ARISING OUT OF STATE SUCCESSION :
1. Political rights and duties : No Succession takes place in respect of political rights and duties, hence succeeding state is not bound by the political treaties of the former state like treaties of peace and neutrality.
2. Local rights and duties : Unlike the political rights and duties, the local rights of the people do not secede with the succession of the States. These rights refers to the rights such property rights, land rights or rights related to railways, roads, water etc. In the case of German settlers in Poland, Permanent Court of International Justice, in its advisory opinion, held that private rights do not end by the change of sovereignty.
3. State Property : Article 11 of the Vienna Convention on state Property, Archives and debts, 1983 provides that unless otherwise agreed the passing of state property will take place without compensation. Article 12 provides that property, rights and interests owned by a third state should not be effected by a succession of state. Article 13 asks the predecessor state to take all measures to prevent damages or destruction to state property which passes to successor state. Article 15 allow special reference to be made to bilateral agreements between predecessor state and the newly independent state but it shall not infringe the principle of sovereignty that is permanent for every person over its wealth and natural resources.
4. State Archives : Article 25 of the Vienna Convention on state property, archives and debts, 1983 lays emphasis on preserving the integral character of groups of state Archives of the predecessor state. Article 28 of the Vienna Convention provides that the passing or appropriate reproduction of state Archives of the predecessor state to a newly independent successor state should be determined by agreement in such a way that benefit each of the states equaly and widely as possible from those archives.
5. State or Public debts : Article 36 of the Vienna Convention on state property, archives and debts, 1983 provides that the succession of a state does not as such affect the rights and obligations of the creditors. Further, when the successor state is a newly independent state, no state debt shall pass to the new state unless an agreement between two states provides otherwise, according to the convention.
6. Contracts : Majority of jurists are of the view that the succeeding states should be bound by the contract entered into by the
Extinct state. In case of West Rand Central Gold Mining Company. Ltd. v. King,² it was held that the succeeding state was entitled to decide whether it will accept the financial obligations of the former state. Until they do not accept the financial obligations of the former state , they are not be bound to follow it .
7. Laws : So far as the laws of the former state are concerned, civil law continues, until it is changed by the succeeding state.
8. Unliquidated damages for torts : No Succession takes place in respect of unliquidated damages for torts. But the succeeding state will be bound if the former state had accepted or had decided to pay compensation.
9. Nationality : The nationals for the former state loose their nationality at the extinction of the state and become the national of the new international person. The nationals are given a certain time in which they have to decide whether they will continue their loyalty towards the former state or they will accept the citizenship of the new state or succeeding state.
• SUCCESSION OF STATE DUE TO TREATIES:
The convention on Succession of state in respect of treaties, 1978 was signed on August 22, 1978 and came into force on November 6, 1996. Till then, 21 states have ratified the convention. It may however, be noted that convention has generated a lot of controversy because it distinguishes between newly independent state (i.e. those which were formerly colonies ) and cases of separation of parts of States (i.e. all other new states).
The Vienna Convention on State Succession
Provides that :
• In the border treaties case, no such significant changes would be observed and the former treaties would pass to the successor state or the new state.
• It is done by keeping in mind the greater interests of the international community or whole States . Similarly, other forms of local treaties related to land, territory, etc. would also pass on to the successor state upon Succession.
• Treaties related to Human Rights are passed on to the successor with all their rights, duties and obligations. In the case of treaties related to peace or neutrality, no succession takes place.
• SUCCESSION IN THE MEMBERSHIP OF THE U.N:
Succession does not takes place due to of the membership of the United Nations. A state may become a member of the United nations by fulfilling the formalities required under the United nations charter. That is to say, an application for admission of a state should be recommended by the Security Council and the General Assembly should elect it as a member by the two-thirds majority.
When Pakistan was separated from India, it claimed itself to be a member of United States since India was a member of the UN. This opinion was rejected by the United Nations General Assembly. The Secretary-General of the UN had then brought up the following :
• From the perspective of International Law, the circumstances is one in which part of the state breaks off from the original state.
• When Pakistan got seperated from India, there was no change seen in the India status. India continued with all former treaties, rights and duties it have earlier.
• On the other hand, Pakistan didn’t have any of those rights or duties and treaties and due to this reason, Pakistan lost the UN membership.
Thus, in the case of succession, the UN membership doesn’t get transferred.
• ABSTRACT :
A scenario of might versus right among nations conjures an imagery of sovereign power and the International Law. Besides, it mirrors the major debate between realism and idealism. Might may not always make the right but it might often determines the winner in international legal order. Because power is the pragmatic lever that includes the actions and reactions of sovereign nations inter se, they constantly strive to attain a superior power position. In the course of this striving for power the legalities of the international law are often thrown overboard. Unfortunately, international adjudication has not been effective in checkmating the powerful and ambitious nations. As per the previous experiences, these major powers not only call the shots, but determine what is right and wrong.
• CASE LAW : S S LOTUS CASE
The first and foremost restriction imposed by international law upon a state is that – failing the existence of a permissive rule to the contrary – it may not excercise its power in any way in the another state territory. In this sense jurisdiction is certainly territorial ; it cannot be excercised by a state outside its territory except by virtue of a permissive rule derived from international custom or from a convention.
• CONCLUSION :
Given the current status of the law with regard to the idea of state succession, it can be very well inffered that the law needs a lot more evolution and clarity. The topic seems to be very difficult to understand, as the area of it is quite lengthy. Due to its complexity and subject matter UN believe it’s difficult to codify the law.
• REFERENCES :
