STATE SUCCESSION - INTERNATIONAL LAW - UPSC LAW OPTIONAL MAINS NOTES



DEFINITION : Replacement of one state by another in the responsibility for the international relations of territory.


TWO TREATIES ON STATE SUCCESSION : The international aspects of succession are governed through the rules of customary international law.


  • Vienna Convention on Succession of States in Respect of Treaties, 1978, which entered into force in 1996, and

  • Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, 1983, which is not yet in force.


However, many of the provisions contained in these Conventions reflect existing international law.


ROLE OF INTERNATIONAL LAW : To provide a general framework to regulate these changes with the minimum of disruption and instability.


ISSUES INVOLVED IN CHANGES IN POLITICAL SOVEREIGNTY OVER A PARTICULAR TERRITORIAL ENTITY :

1. How far the new state will be bound by - treaties, contracts, debts- entered by the previous sovereign state.

2. Inhabitants- nationality issue ?

3. What happens to Public property of the previous sovereign?

4. To what extent the new authority liable for the debts of the old?

Where a new entity emerges, one has to decide whether it is a totally separate creature from its predecessor, or whether it is a continuation of it in a slightly different form.


Where a new entity emerges, one has to decide whether it is a totally separate creature from its predecessor, or whether it is a continuation of it in a slightly different form.


1 – CONTINUITY PRINCIPLE BY INHERITANCE: 

Origin: Roman law 


Concept: New state has to saddle the burden + benefits  of its predecessor.

Example: India is a continuation of British India whereas Pakistan is new state altogether.


1.Not accepted widely.

2.Cession/ secession of a territory will not affect existing state. Eg: Pakistan remains as a state even after independence of Bangladesh.

3.But when a state is dismembered so that all of its territory falls within the territory of two or more states, these rights and duties will be allocated as between the successor states. In deciding whether continuity or succession has occurred with regard to one of the parties to the process, one has to consider the classical criteria of the creation of statehood, together with assertions as to status made by the parties directly concerned and the attitudes adopted by third states and international organisations.


4.RELEVANCE OF THIS PRINCIPLE : You can easily continue membership in International organs of your predecessor.  Eg: USSR dissolution; Russian federation took its membership.



5.IMPLICATION OF RESTORATION OF TERRITORY :

1.Till 1940 - Baltic state was an independent state ;

2.After 1940 it came under USSR control until 1990.

3.In 1991, after dissolution of USSR , Baltic states declared independence. 

4.Question was : whether it will continue with Right and duties of USSR or can be restored with Rights & Duties of Baltic States on as on 1940 .


6. CASE OF DISSOLUTION OF YUGOSLAVIA: Two dismembered state maintained that it's a continuation of its predecessor but International community didn't accept it. Then it changed its position & requested UN for membership & be treated as a new member.


2 - Clean slate principle:

Origin: Positivism trends. It basically denied any transmission of rights, obligations and property interests between the predecessor and successor sovereigns, arose in the heyday of positivism in the nineteenth century. With the rise of the decolonisation process in the form of the ‘clean slate’ principle, under which new states acquired sovereignty free from encumbrances created by the predecessor sovereign.


Concept:  I am a new born child. I have my own style.


"a new state is not bound to maintain in force, or become a party to, any treaty by reason  only of the fact that at the date of the succession of states the treaty was in force  in respect of the territory to which the succession of states relates" Article 16 of the VCS 1978


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