State Succession

Continuity, the position generally taken where a State is dissolved or where territory is transferred between existing States.

The Convention. The Vienna Convention on Succession of States in respect of Treaties 1978 attempts to codify the position, but it has few parties and much of it is regarded as progressive development rather than a statement of custom. Its broad scheme is worth knowing: a newly independent State is not bound to maintain a treaty merely because it was in force for the territory, which is the clean slate; on a transfer of territory between existing States, treaties of the predecessor cease to apply and those of the successor begin to apply to the territory, which is called the moving treaty frontiers rule; and on a uniting or separation of States, treaties in force continue in respect of the territory to which they applied.

Three categories that behave differently, whatever the theory.

Boundary and territorial treaties pass. A treaty establishing a boundary, or a right or obligation attaching to a particular territory such as a right of navigation or an obligation not to fortify, runs with the land. If it did not, every succession would reopen every frontier, and stability of boundaries is the one point on which succession law is firm.

Political treaties do not pass. Treaties of alliance, of neutrality or of friendship are personal to the predecessor and lapse.

Multilateral law-making treaties are the awkward middle. Human rights treaties are increasingly said to pass, on the view that rights already accruing to the inhabitants should not be lost by a change of sovereign, and practice supports this more than doctrine does.

What happens to everything else

Public property. State property situated in the territory passes to the successor. Property outside it is apportioned by agreement, and disputes about foreign bank accounts and embassies are common on a dissolution.

Public debt. The general position is that debts attaching to the territory, particularly localised debts incurred for its benefit, pass to the successor, and that general debts are apportioned equitably. Newly independent States after 1945 pressed the doctrine of odious debts, that debts contracted by a colonial power against the interests of the territory should not pass. It is asserted more often than it is conceded.

Private rights. Contracts, concessions and acquired rights of private persons are in principle respected by the successor, on the reasoning in [Treatment of Aliens and Diplomatic Protection], though a successor may expropriate on the ordinary conditions.

Membership of international organisations. Not inherited. A new State applies for admission in the ordinary way, and for the United Nations that is article 4, requiring a recommendation of the Security Council and a decision of the General Assembly. A continuator State keeps its seat; a successor State applies.

Nationality. The inhabitants generally acquire the nationality of the successor, often with a right of option, which is the point made in [Nationality].

Responsibility for earlier wrongs. The traditional rule is that responsibility does not pass, because responsibility is personal to the wrongdoing State. Where the predecessor has ceased to exist, that leaves the injured State without a respondent, and modern practice has moved towards allowing succession in some cases, particularly where the successor has taken the benefit.

India in 1947

MU's course objectives ask for India's position, and the 1947 settlement is the standard Indian illustration.

India was treated as the continuator, Pakistan as a successor. That was the practical effect of the arrangements made at the time and of the position taken in the United Nations: India retained its seat in the Organization, which it had held since 1945, while Pakistan applied for admission and was admitted as a new Member on 30 September 1947.

The consequences follow from that classification. India continued to be bound by the treaties that had applied to it and continued to hold the assets and liabilities of the former Government of India, subject to the division agreed between the two Dominions. Pakistan, as a new State, took the position of a newly independent State.

The classification was contested and was decided by practice, not by a rule. That is the lesson worth taking: whether an entity is a continuator or a successor is settled by how the international community treats it, above all by what happens to the seat at the United Nations, and there is no test that decides it in advance.

Boundary treaties bound the successors. The boundary settlements of the colonial period continued to bind both Dominions, which is the general rule that boundary and territorial treaties run with the land, and it is why the 1974 agreement dealt with in [Loss of State Territory] was a settlement of an inherited boundary rather than the creation of a new one.

A worked example

State F dissolves. Its territory becomes two new States, G and H, and neither is generally treated as the continuator. State F had: a boundary treaty with State J; a defence alliance with State K; a loan from an international bank spent entirely on a hospital in what is now H; embassies in twelve countries; a seat in the United Nations; and an outstanding claim against it by State L for polluting a river five years ago.

The boundary treaty. Passes to whichever of G and H the boundary now touches. Boundary and territorial treaties run with the land, and this is the firmest rule in the subject.

The defence alliance. Lapses. Political treaties are personal to the State that made them.

The loan. A localised debt, incurred for the benefit of what is now H's territory, so the general position is that it passes to H rather than being apportioned.

The embassies. State property outside the territory, so it is apportioned between G and H by agreement, and in practice by protracted negotiation.

The United Nations seat. Not inherited by either, since neither is the continuator. Both must apply under article 4, needing a recommendation of the Security Council and a decision of the General Assembly.

The pollution claim. On the traditional rule, responsibility does not pass, and State L is left without a respondent because State F no longer exists. Modern practice is less rigid, particularly where a successor took the benefit of the activity complained of, and State L would argue on those lines.

Change the facts: suppose G is universally treated as the continuator of F and only H is new. Then G keeps the seat, the treaties, the property and the responsibility, and H is a successor whose position on each question is decided as above.

Distinctions table

What it does NOT mean

Succession of States is not succession of governments. A change of government leaves the State the same legal person.

The clean slate is not a general rule. It applies to newly independent States; boundary and territorial treaties pass whatever the category.

The 1978 Convention is not settled law. It has few parties, much of it is progressive development, and it should be cited as an attempt at codification rather than as the applicable rule.

Membership of an organisation is not property. It is not inherited, and it is not apportioned.

Limits and criticism

This is the least settled area in the module. The rules are stated in the language of general principle and are in practice worked out by agreement between the States concerned, with the international community ratifying the result.

The classification does the work and has no test. Everything follows from whether an entity is a continuator or a successor, and that is decided politically, chiefly by what happens to the seat at the United Nations.

Odious debts are asserted and not conceded. The doctrine has strong moral force and thin support in practice, and a candidate should say so rather than state it as a rule.

Quick revision

State succession arises where one State replaces another in responsibility for the international relations of territory: cession, secession, decolonisation, merger, dissolution, and historically annexation.

Distinguish succession of States from succession of governments, where the State stays the same legal person, and continuator from successor.

Treaties: three theories, universal succession (rejected), clean slate or tabula rasa (the rule for newly independent States), and continuity. The Vienna Convention on Succession of States in respect of Treaties 1978 codifies but has few parties; its moving treaty frontiers rule applies on a transfer between existing States.

Boundary and territorial treaties pass; political treaties lapse; multilateral law-making treaties, especially human rights treaties, increasingly pass.

Property in the territory passes; property outside is apportioned. Localised debts pass; general debts are apportioned; odious debts are asserted, not settled. Membership of organisations is not inherited: apply under article 4. Responsibility traditionally does not pass.

India 1947: India was treated as the continuator and kept its seat; Pakistan applied and was admitted as a new Member on 30 September 1947. The classification was settled by practice, not by a rule.

Test yourself

1. Distinguish State succession from succession of governments.

State succession arises where one State replaces another in the responsibility for the international relations of territory, so the identity of the State holding the territory changes. Succession of governments arises where the authority representing a State changes irregularly, and there is no succession at all in the technical sense: the State remains the same legal person, so its treaties, debts and responsibility continue unaffected. The two are constantly confused and the consequences are opposite.

2. What are the three theories about the succession of treaties, and which applies to a newly independent State?

Universal succession, borrowed from Roman inheritance, under which the successor takes all rights and duties; the clean slate or tabula rasa doctrine, under which the new State begins free of the predecessor's treaty obligations; and continuity, under which treaties continue to apply to the territory. The clean slate is the general rule for a newly independent State, and it is reflected in the Vienna Convention on Succession of States in respect of Treaties 1978, which provides that such a State is not bound to maintain a treaty merely because it was in force for the territory at the date of succession.

3. Which treaties pass regardless of the category of succession, and why?

Boundary treaties, and treaties creating rights or obligations attaching to particular territory such as rights of navigation or obligations not to fortify. They pass because they run with the land, and because the alternative would reopen every frontier at every change of sovereignty. Stability of boundaries is the firmest rule in this branch of the subject, and it is the one point on which the clean slate doctrine has never been allowed to operate.

4. Does a successor State inherit membership of the United Nations?

No. Membership is not property and is not inherited. A successor State must apply for admission under article 4 of the Charter, which requires it to be a peace-loving State accepting the Charter obligations and able and willing to carry them out, and admission is by decision of the General Assembly upon the recommendation of the Security Council. A continuator State retains the seat it already holds, which is why the classification of an entity as continuator or successor matters so much.

5. Explain the position of India and Pakistan in 1947.

India was treated as the continuator of the pre-independence State and Pakistan as a new State. India therefore retained the seat in the United Nations that it had held since 1945, together with the treaties, assets and liabilities of the former Government of India, subject to the division agreed between the two Dominions. Pakistan applied for admission in the ordinary way and was admitted as a new Member on 30 September 1947, and took the position of a newly independent State. Boundary settlements of the colonial period bound both, on the rule that boundary treaties run with the land. The classification itself was contested and was resolved by practice rather than by any rule.

6. Why is State succession described as the least settled part of this module?

Because there is no widely ratified convention and no consistent body of practice. The 1978 Convention on treaties has few parties and much of it is progressive development. The pivotal question, whether an entity is a continuator or a successor, has no legal test and is answered by how other States treat it, above all by what happens to the seat at the United Nations. And the outcomes in real cases are produced by agreement between the States concerned, negotiated in the shadow of general principles rather than dictated by them.