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“Law Master’s” Publication
“State”
Prof. S.D. Bhosale
(..5..)
State Succession
QUESTION BANK
1. Explain the concept of “State succession”. State kinds and consequences of state
succession.
2. Explain the concept of ‘State Succession. State the kinds and theories of State
Succession.
Short Notes
1. Kinds of State Succession.
2. State succession.
SYNOPSIS
I. Introduction-
Hugo Grotius introduced the concept of ‘State Succession’. He introduced this
concept according to the rules of succession of private properties existing in Roman Law.
According to him, a State also succeeds as an heir and becomes the successor of the
deceased person’s rights and obligations.
state with another in the responsibility for the international relations of territory.
Edward Collins differentiates “Succession of Government” from “Succession of
the State”. According to him, “a succession of Government occurs when the government
of the State is replaced with a new government”, which is not the subject of study here.
The “State Succession” occurs when (i) a state ceases to exist, (ii) a new state is formed
within the territory of an existing state (iii) territory is transferred from one state to another
1 Art. 2 of Vienna Convention 1983.
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“Law Master’s” Publication
“State”
Prof. S.D. Bhosale
state. This is the topic of study here.
According to Prof. Strake, “State Succession” means the transmission of rights and
obligations from states that have altered or lost their identity to other states or entities. Such
alteration or loss of identity occurs primarily when complete or partial changes of
sovereignty take place over a portion of the territory.
In other words, State Succession signifies the transfer of rights and duties from one
international person to another as a consequence of a territorial change. A succession of
States occurs when one State is substituted by another. Such substitution may take place
either by absorption, subjugation, voluntary merger, split, etc.
The state that replaces another is called a ‘Successor State’ or ‘New State’, and the
old state that is so replaced is called a ‘Parent’ or ‘Predecessor State’.
II. Kinds of State Succession-
State Succession has the following kinds-
1. Universal Succession-
When the personality of an existing state completely destroys it, and another state
absorbs it, this is called ‘Universal’ or ‘Total' Succession.
Universal succession takes place in flowing circumstances-
(i) By Annexation or Conquest-
‘Universal succession’ takes place by force when one State absorbs another through
annexation or conquest. For example, the South African Republic was annexed by Great
Britain in 1901, Korea was annexed by Japan in 1910, and Abyssinia was annexed by Italy
in 1936.
(ii) By Merger-
Universal Succession occurs when several States voluntarily merge into a Federal
State or a Union. For example, in 1990, the German States united to form the Federal
Republic of Germany, and in 1845, the Republic of Texas was admitted to the USA.
(iii) By Split-
Universal Succession also occurs when one State splits up into several States, each
with a separate independent personality. Each of these independent states becomes a
successor of the ‘parent state’. For example, the former USSR was split into several
independent States in 1991.
III. Theories of State Succession-
(1) Universal Theory-
(2) Continuity theory-
Max Huber is the founder of this theory. The theory is thereafter upheld by
Westlake. In fact, the theory is a modification of Universal theory. According to Huber,
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“Law Master’s” Publication
“State”
Prof. S.D. Bhosale
the Succession of States has two features, i.e. substitution plus continuation. According to
him, the successor steps into the place of the predecessor and continues his rights and
obligations so far as the succession of private and public law agree. Thus, according to him,
the Successor State firstly substitutes the personality of its predecessor and, secondly, takes
all the rights and obligations of the predecessor state as a whole. However, the Successor
State does not discharge those obligations of the Predecessor State, which are essentially
political in character.
Criticisms against the theory-
The theory is criticised because it is contrary to practice. The conquering States act
by taking the utmost while admitting minimum obligations. The succeeding state gets as
much as it can and is avidly liable of any sort.
(3) Negative theory-
According to Negative Theory, the Successor State does not succeed in the
predecessor's personality. In fact, the sovereignty of an earlier State is replaced by the
sovereignty of another State. According to this theory, 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. Thus, the international personality of the earlier State disappears
with its extinction. There remains no personality to be succeeded. Therefore, according to
this theory, the absorbing State is in no way bound to respect the rights and obligations of
the State, which has ceased to exist.
According to this theory, the Successor State acquires sovereignty free from
encumbrances created by the predecessor sovereign.
Criticism-
The theory is criticised on the ground that, according to this theory, there is the
replacement of sovereignty and not a succession of territory as such, and the new sovereign
is not bound by the obligations of the absorbed State. However, such a new sovereign
cannot escape from international obligations. International law binds such absorbing States
to carry out the international obligations of the absorbed State.
IV. Consequences of State Succession-
State succession has some consequences for the rights and obligations of the
succeeding state. Even though, as per Negative theory, the sovereignty of the earlier State
extinguishes, and the sovereignty of the absorbing State is replaced, and therefore, all rights
and obligations of the extinguishing State are extinguished, this is not true. There remains
some obligation to the international community.
We will discuss what rights and obligations of the Predecessor State remain.
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“Law Master’s” Publication
“State”
Prof. S.D. Bhosale
1. Effects on treaties-
In fact, there are various types of treaties causing different effects on treaty
obligations. According to Oppenheim, “no succession takes place with regard to rights and
duties of the extinct State arising from its political treaties”. Thus, political treaties are not
binding on succeeding states. Similarly, the obedience of commercial treaties,
administrative treaties, localised treaties, etc., depends upon the will and suitability of the
succeeding State. However, multilateral treaties are obligatory upon succeeding states
because such treaties are entered into by a number of States for the general benefit of all
States.
2. Membership of International Organisations-
There comes no question of succession of membership of international
organisations. Every new State is required to apply a fresh in order to become a member
of such organisations, irrespective of the fact that its predecessor was a member of that
organisation. However, after the independence and separation of Pakistan from India, India
was allowed to continue its membership of international organisations (UNO etc.) obtained
earlier. However, Pakistan was told to obtain membership fresh. Similarly, after the
dissolution of the Soviet Union into 12 independent States, the State of Russia was allowed
to continue its existing membership. However, the rest of the states which are not already
members were to apply afresh for membership.
3. Public Property-
The successor State takes over all the public and property rights of the Predecessor
State. All public property of the predecessor state passes to the successor state. Vienna
Convention of 1983 makes provision in this respect.
4. Public Debt-
Generally, no State considers itself to remain bound by the debts and liabilities of
the Predecessor State. However, where succession occurs peacefully, the States decide how
the public debt will be paid. At the time of the partition of Pakistan from India, India had
assumed all the debts and financial obligations of British India.
5. Contracts-
There is no specific rule regarding the continuation of contracts entered into by the
Predecessor State. A succession of contracts depends upon the discretion of the Successor
State.
6. Torts-
The Successor State is not bound to assume tortious liability for un-liquidated
damages of the Predeceased State.
7. Laws-
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“Law Master’s” Publication
“State”
Prof. S.D. Bhosale
Law in force in the State does not automatically change due to a change in
sovereignty. It remains in force till new laws are made by the sovereign.
8. Nationality-
Nationals of the Predecessor State lose their nationality; they assume the nationality
of the Successor State.
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