state succession (public international law)
TRANSCRIPT
STATE SUCCESSION
(Meaning and Concept)
INTRODUCTIONPolitical entities are subject changeChanges have come into fore after World War
2nd
Idea of state succession was introduced by Grotius
A state which replace another state is called SUCCESSOR STATE.
The state which has been replaced is known as ‘parent or predecessor state’.
Definition and meaningOppenheim’s definition of state succession
The Vienna Convention on Succession of States in respect of treaties of 1978 ,Art.2 (1)(a) –definition
Meaning: - substitution of one state by another - Transfer of rights and obligation
Reasons
MergerAnnexationCessionDecolonizationDismembermentWar
Kinds of state successionUniversal State succession• Personality of predecessor completely destroyed• When state breaks into several part and each
part become new state.
Partial State succession• Part of state revolts or after achieving freedom• Part of state ceded to another• State loses its part
Theories of state successionUniversal
theory• Successor
state enjoys all rights & discharge duties of its parent state
Continuity theory
• Succession is substitution plus continuation
Negative theory
• Successor state does not succeed personality of predeceased state
Law of state successionBased upon EQUITY, REASON ,& JUSTICE.UNO’s view for codification of law relating to
state succession.Recommendation by International law
commission in the year 1949 for codificationFormation of convention in the year 1978.Vienna convention in the year 1983Law is still under consideration of UNO.
Consequences of state successionTreaties Membership of international organizationPublic propertyState archivesPublic debtContracts TortsLawsNationalityPrivate rights.
Rights and duties arising out of state successionPolitical Rights And Duties: Succeeding State
is not bound by the political treaties of the former state such as treaties of peace and neutrality.
Local Rights And Duties: A genuine succession takes place regarding this i.e. the succeeding state is bound to observe duties concerning land, rivers, railways, roads etc
German Settlers In Poland It was held that private rights do not end by the
change of sovereignty.
Rights and duties arising out of state succession(continued)State Property Article 11 of Vienna Convention On State Property,
Archieves And Debts, 1983, says that property will pass to other state without compensation
Article 12 says that property, rights and interest owned by a third state is not affected. (Rights of third states are not affected by succession)
Article 13 tells about the duty of the predecessor state to take all measures to prevent damage and destruction of the state property which is to be passed to the succeeding sate.
Rights and duties arising out of state succession(continued)Contracts : Predecessor state entered into
contract, now, whether the successor state is bound by that or not.
West Rand Central Gold Mining Co. Ltd.v/s KingSucceeding state was entitled to decide whether it will accept the financial obligation of the former state or not if it won’t accept then it won’t be liable.
Rights and duties arising out of state succession(continued)Concessionary Contracts : Like Digging of
mines, laying of the railways etc. They are of local nature and that is why they are binding on the succeeding state.
Laws : Succeeding state will have to decide whether the laws of the predecessor state will continue or not.
Nationality : Nationality of the new state is gained and nationality of the predecessor state is lost.
Treaty RelationsVienna convention on Succession of States in respect of
treaties,1978 entered into force-1996A.15-treaties of the predecessor state are to be in force in
relation to the territory thus passingTreaties of the successor state are to be in force in respect
of the territory thus passing, unless it appears from the treaty or is otherwise established that the application of the treaty to that territory would be incompatible with the object and purpose of the treaty or would radically change the conditions for its operations.
Contractual ObligationsThe relevant treaties will continue in force.‘Free choice’ doctrineDamages for unliquidated damages won’t
existIf there is any unjust enrichment to the
predecessor or successor state the right and corresponding obligations may survive.
Public DebtsTaking the burden with the benefitsNo obligation accrues for a successor state in
respect of a public debt incurred for a purpose hostile to the successor state or for the benefit of some other state.
If a country is divided in to many countries the debt become divided among the successors.
Ottoman Debt Arbitration, 1925.Proportionate benefit
DebtsVienna Convention on Succession of States in
Respect of State Property, Archives and Debts, 1983 - NOT IN FORCE
Usually all disputes has to be settled by agreements.the successor State acquires the whole property of
the predecessor State or States.Equitable proportion is to pass to the successor
state.A.37 -if the successor state is a newly independent
state, no debt will pass unless the agreement otherwise agrees.
Property And ArchivesThose States should receive not only the whole
property of the predecessor State situated in the territory of the new State, but also property having belonged to the territory of the successor State and situated outside it and having become property of the predecessor State during the period of dependence.
If no agreement was concluded, in the case of cession the successor State should receive the part of the archives necessary for an efficient administration of the acquired territory, as well all the documents relating fully or mostly to the ceded territory.
Succession regarding the membership of united nationsNo succession regarding that.By Fulfilling The Requirements of U.N. a state
may become a member of U.N.E.g. India – Pakistan (at the time of Partition)
HONG KONG
Conclusion Successor State enjoys all rights of its parent
State.It also discharge all duties.State succession can either total or partial Need of codified law.
Thank You!
Sourabh Ubale(LL.M. International Law- Ist year,
Department of Law, University of Pune)(2012-14)