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Introduction
Since World War II, State succession has become increasingly
important as it affects more States and more legal relationships
than ever before. Approximately 100 new States emerged with the
end of decolonization. Recently, Germany reunified, while the
Soviet Union, Yugoslavia and Czechoslovakia dissolved. These
changes affected more legal relationships than the earlier
decolonization process. These newly formed European States are
more integrated into the political, economic and legal global
framework and are of greater importance, than were the former
dependent territories that became new States.(1) This Article
attempts to introduce the law of state succession, the effect of
state succession on debts. This article tries to reflect upon the
nature of the problems that arise and may go some way towards
ameliorating their effect. This Article will argue that in spite
of a failure to codify State succession matters, a lack of
consensus among learned authors, and clear tendencies in older
precedents, there seems to be an emerging consensus in recent
practice suggesting that State succession should not normally lead
to a disruption of legal relationships at all levels.
A. Attempts to
Codify or Legislate the Law of State Succession
Jennings has very correctly remarked that the law of state
succession
‘is a subject which presents such a rich diversity of
practice as to give some plausibility to a surprisingly varied
range of theoretical analysis and doctrine’. (2)It is a subject,
which has been largely confused and resistant to simple
exposition. Despite the vast amount of literature on the subject,
rarely is mention made of the topic without reference to the
complexity of issues involved, the almost total doctrinal schism
that has polarized thinking, and the lack of any agreed
theoretical structure. The ILC commented,
[a] close
examination of State practice afforded no convincing evidence of
any general doctrine by reference to which the various problems of
succession in respect of treaties could find their appropriate
solution.(3)
The
International Law Commission (ILC) has considered the matter
extensively (4), and two international conventions on the law of
state succession have been adopted (5). Neither of the two
conventions has entered into force although each requires but
fifteen ratifications or accessions for entry into force.(6) The
ILC deals with State succession under four categorical headings:
1) Treaties:
the Vienna Convention on Succession of States in Respect of
Treaties (Vienna I);(7)
2) State
property, State debt and State archives: the Vienna Convention on
Succession of States in Respect of State Property Archives and
Debts (Vienna II);(8)
3) Membership
to international Organizations: the ILC Rapporteur concluded that
the subject matter was not appropriate for codification. The
Rapporteur recommended a report to provide illustrations for
resolving different categories of problems--illustrations which
could have a unifying effect on the practice of Organizations;(9)
and
4) State
succession and its impact on the nationality of natural and legal
persons: the Rapporteur also failed to find any prospects for
codification and recommended an ILC report or a United Nations
General Assembly draft declaration setting minimum standards for
the automatic acquisition of nationality. These minimum standards
would serve as guidelines for State legislation concerned with
State succession.(10)
B. Legal
Doctrine
The ILC's failed efforts to codify or legislate a doctrine for
State succession reflects the state of legal doctrine as supported
by precedents in State praxis and opinions of learned authors.(11)
State practice and legal theory regarding succession yield
separate approaches dealing with the legal consequences of such
succession:
1) The
continuity of treaties, claims, debts, etc.;
2) the discontinuity
"clean slate" or tabula rasa;
3) a casuistic distinction according
to the type of State succession or to the type of legal
relationship concerned; and
4) a case-by-case settlement by mutual
agreement between the successor State and other States concerned.
The fourth option includes the application of the rebus sic stantibus principle although the widely-accepted Vienna Convention
on the Law of Treaties only allows the principle to be applied
within an existing treaty relationship.(12) The principle's
invocation presupposes agreement on the treaty's continuity.
For many
authors, the central issue of substance is simply whether or not
one of two alternative theses should be applied: the ‘universal
succession’ thesis or the ‘clean slate’ (tabula rasa) thesis.(13)
The former approach is a derivative of the Roman law concept of
inheritance in civil law, in which the heres (the appointed
successors) acquire not merely a single res, but an aggregate of
rights and liabilities called a
iuris universitas.(14)
A. Tabula rasa:
The Clean Slate Doctrine
The option of simply denying State succession to treaties, known
as the tabula rasa or
clean slate
doctrine and re-inventing international law after each case of
State succession has never been adopted or openly defended in
recent State practice. The ‘clean slate’
thesis appears to have emerged in the late nineteenth century as a
result of the influence of
voluntarist or
imperative approaches
to law. It proceeds from an understanding of law as deriving from
the expression of sovereign will, and embodies thereby the view
that legal relations are essentially personal. As a result, the
process of transformation necessarily involves a legal hiatus when
the sovereignty of one state comes to an end and another takes its
place. In such a situation, there can be no
‘transfer’
of rights or obligations between the old and the new state.(15)
Rather, the incoming sovereign is free of all rights and
obligations save those it assumes afresh. As Sir Thomas Baty(16)
has asserted:
If the
government functioning in a given area disappears, and is
succeeded by no one government, but new governments arise and
maintain themselves in various portions of the original area, then
it is clear that the State, as such ceases to exist, and that
several new states arise on its ruins. Were it otherwise, Italy as
the heir of the Roman Empire would have a good title to the whole
continent of Europe.
Does the
application of the
tabula rasa
doctrine also suggest that the Successor State may not have
succeeded to either the property or the debt of the Predecessor
State?(17) The ----------------main argument in favor of the
clean slate
doctrine is that treaties are generally burdensome restrictions to
sovereignty and that a
new State
should be free to reconsider the Predecessor State's treaties. The
rationale being that a fundamental change of circumstances results
in the formation of a new state and it is not the upholder of the
obligations entered into by its predecessor.(18) The distinction
Vienna I makes between
newly
independent States,
which are offered a clean slate, and other successor States, has
been justified with the argument that these formerly dependent
territories did not have a voice in the adoption of the
predecessor State's treaties, whereas separated States presumably
did.(19) In fact, even Austria avoids application of its
clean slate doctrine and concedes the
practical continuation of treaty relations until a new agreement
has been reached.(20) Austria has negotiated lists of treaties to
continue with some States and has confirmed these lists in an
exchange of notes after receiving Austrian parliamentary approval.
Austria has perceived the act as one of novation and the
conclusion of a new treaty.
This analysis
was also adopted by the Sixth Legal Committee of the General
Assembly (21) during the dismemberment of Pakistan from India and
stated that when a new state is created by separation from a
member of the United Nations it couldn’t under the system of the
Charter claim the status of a member of the U.N. unless it has
been formally admitted as such in conformity with the provisions
of the Charter(22). Therefore, states will not remain members when
they are legally extinguished and new states will remain as new
states.(23)
B. Universal
Succession: The Continuity Theory
The
continuation theory
of state succession is an anti-thesis to the
clean-slate
theory
of membership.(24) Under the
continuity
theory,
rights and duties may still pass to States that have lost
extensive portions of their territories and/or have undergone
radical changes in government as long as they are considered to
have inherited the essential
legal identity
of the former member.(25) In this regard, a distinction must be
made between the concepts of
continuity
and
state succession. In the former,
the same State is deemed to continue to exist, while in the
latter, one or more successor States are deemed to have replaced
the former State.(26) Prichard explains that at the time of
Justinian:
The universal successor assumes the whole of the legal clothing
of the person to whom he succeeds; steps, as it were, into his
shoes. He takes over his rights and liabilities of every kind; his
property (res singulae) and iura in re aliena, the debts and other
obligations (such as rights of action for damages for breach of
contract) owing to him, and the debts and obligations which he
owes
It was in the
work of Gentili(27), Grotius(28) and Pufendorf(29) that such
concepts found their way, in rudimentary form, into the body of
international law, it being argued that the rights and duties of
the predecessor passed ipso jure to a successor sovereign.
Although such authors were generally concerned primarily with
succession of the person of the sovereign (i.e. what is now
referred to as succession of governments), rather than succession
of ‘states’,
the universal succession thesis survived largely intact until the
late nineteenth century.(30) By this stage it found its
justification not so much in theistic dogma but in theories of
‘popular continuity’(31), ‘organic substitution’(32) and,
improbably enough, ‘auto limitation’(33).
Under the
continuity theory, there can be only two ways to view the division
of a state: (i) as a "breakaway,"
in which one of the divisions represents the continuing existence
of the State while the others represent States that have seceded
from it; or (ii) as a complete "dissolution,"
in which the State has been dissolved and none of the resulting
States represent its continuity. Thus, the determination of
whether the changes in a State constitute an extinction of its
legal personality is critical to the inheritance of its rights and
duties and other obligations. The legal identity of a State might
be destroyed through division,(34) if it loses (a) Majority of the
population and territory of the former state;(35) (b) seat of
government, its original territorial nucleus, or areas from which
it obtained extensive revenues(36); (c) acceptance by the
international community regarding its continuity.(37)
The universal
succession thesis demands too much. It argues for the maintenance
of legal continuity in circumstances in which some alteration of
legal relations is both inevitable and necessary. It assumes that
states may be burdened with obligations in a situation where
specific consent is palpably absent, not because of any universal
necessity but because of some inchoate systemic interest in legal
continuity. O’Connell’s approach in this regard is undoubtedly
radical, and for that reason his tentative phraseology is entirely
apposite. His suggestion is tantamount to a disposal of all
questions of ‘succession’ understood as an
‘inheritance’
or ‘assumption’
of rights and obligations by reference, not to the normal bivalent
division between succession and non-succession but to the
integrity of the legal relations themselves.(38)
The law of
state succession has, for some time, been explicitly contingent
upon the ‘personality’
of the state, and specifically its
‘identity’
or ‘continuity’,
which remained the point of differentiation between the operation
of two distinct legal regimes. Identity, therefore, serves to
differentiate between a case of cession (or secession) and one of
dismemberment,(39) between a case of absorption (or annexation)
and one of union, and between the birth of a new state and its
resurrection. In each case, the defining consideration is whether
or not the state concerned retains its legal identity; in other
words, whether it continues its personality as a state. Such
differentiations are thought to be particularly important because
international law presumes that all decisions relating to the
continuation or otherwise of a state’s rights and duties, assets
and liabilities, will be dependent upon the universal
characterization adopted. This, in turn, flows from the
proposition that the possession of international rights and duties
inheres in an entity with appropriate legal personality. Identity,
therefore, provides the key to determining the proper set of norms
that are to be applied in a given case.
The point of
difference between ‘identity’
and ‘personality’
of a state may be described as follows: whereas the concepts of
statehood and personality proceed on the understanding that states
have certain attributes or qualities in common and that they are
thereby attributed with, or inherently enjoy, certain competencies
under international law, the concept of ‘identity’, by contrast,
assumes that individual states, whilst being members of a
particular class of social or legal entities, also possess certain
distinguishing features that differentiate one from another.
Identity, therefore, presumes personality but is concerned with
what is personal or exceptional in the nature of the subject.
Therefore
stating as precedent the reunification of Germany did not affect
the legal position of the Federal Republic of Germany since it
remained identical with itself after the incorporation of the new
Lander emerging from the former GDR. Because the State authority
was the same as before and the State's territory was merely
enlarged, the "moving
frontier rule"
applies under the law of succession.(40) Furthermore, even the
population of the enlarged Federal Republic was identical. The GDR
underwent a peaceful revolution when demonstrators changed their
slogans from "We
are the people"
(i.e., the sovereign, above the State organs) to "We
are one people."
Despite the incorporation of the GDR into the Federal Republic of
Germany, there was of course State succession as to the GDR since
the GDR had actually and legally existed as a State entity.
In comparison,
the claim of the Federal Republic of Yugoslavia (Serbia and
Montenegro), created on April 27, 1992, to be identical with the
former Socialist Federal Republic of Yugoslavia (SFRY) could only
be upheld if there still was a Yugoslav nation. However, this
condition was manifestly not present since four of the six
federated States declared themselves independent after having been
authorized to do so by plebiscites. Additionally, the organized
political authority of the SFRY did not survive the disruption of
the Federation.
II. State
Succession
Although state succession (41) forms part of the established
corpus of classical international law, it is an area of especial
confusion and inconsistency. As the German Federal Supreme Court
noted in the
Espionage Prosecution Case,
(42)
the problem of
State Succession is one of the most disputed areas of
international law. (43) Why this should be so is a fascinating
question. Different international crises resulting from
termination of particular states or empires have not always been
treated in a consistent fashion for a host of political reasons
and this has inevitably led to difficulties in formulating the
relevant legal rules which predictability. Accordingly, one needs
to sift through such diffuse and dissonant international practice,
bearing in mind that specific bilateral solutions to particular
problems may not necessarily be instantly generalisable. The
pattern of international reaction to such specific episodes needs
to be carefully weighed since recognition in a situation of
inconsistent and uncertain practice assumes perforce a greater
importance than might perhaps otherwise be the case. As the
Arbitration Commission established by the Conference on Yugoslavia
starkly emphasized,
there are few
well-established principles of international law that apply to
State succession. Application of these principles is largely to be
determined case by case though the 1978 and 1983 Vienna Convention
do offer some guidance.(44)
States and the
concept of statehood (45) lie at the heart of international law.
As Oppenheim notes, States are the principal subjects of
international law and thereby possess
international personality of the fullest kind.(46) It is quit apparent that one cannot
tackle the question of State succession, i.e the issue of
transmission of rights and obligations from one State to another
without at first confronting the problem of statehood. Succession
is predicated upon the existence of two (or more) States has been
resolved in a way that the issue of identity or continuity of
States has been resolved in a way that presents the international
community with at least two states.(47) Of course, in the vast
majority of cases no problem will occur at this point, but in some
situations this will not be so. In addition, it is important
conceptually to distinguish issues focusing upon statehood from
those concerned with succession in order to be able to appreciate
the crucial distinction between the legal consequences flowing
from a determination as between continuity and succession.
A. What is
State Succession?
Oppenheim(48) has stated that a succession of international
persons occurs when one or more international persons takes the
place of another international person, in consequence of certain
changes in the latter’s condition.(49) Such a succession may
involve any category of international persons, but it is
convenient here to consider only successions involving states,
whether fully or partially sovereign. While Feilchenfeld simply
notes that the transfer of one State to another is usually
described as ‘State
Succession’.(50)
Vienna I and
II state that succession is "the
replacement of one State by another in the responsibility for the
international relations of a territory."(51)
This definition excludes mere changes of government like those
revolutionary transformations of a State brought about by the
introduction of socialism or by its abolition. The Vienna
Conventions' definition avoids tricky questions as to, what is a
state? - In the same way that all invocations of the principle of
self-determination
avoid saying to whom the right is granted. The definition of State
succession limits itself to a symptom or to the effect relevant
for international law in the succession of responsibility for a
predecessor State's international relations. Yet this symptom of
responsibility for international relations is the result of a
social, political, and historical process with consequences in the
fields of national constitutional, administrative, and civil law.
And there the question concerning the process of State succession
frequently becomes unavoidable, especially when it is necessary to
determine the date on which State succession has taken place. In
addressing the issue of when a succession has occurred, the Vienna
Conventions simply state: 'date
of the succession of States'
means the date upon which the successor State replaced the
predecessor State in the responsibility for the international
relations of the territory to which the succession of States
relates.(52) The nature of State succession must be considered
when a State claims to be identical with a former State. The
definition of the Vienna Conventions correctly reflects the
general conviction that a State identical with another one cannot
be its successor.(53)
The issue of
state succession can arise in a number of defined circumstances,
which mirror the ways in which political sovereignty may be
acquired by, for example, decolonization of all or part of an
existing territorial unit, dismemberment of an existing state,
secession, annexation and merger. In each of these cases a
once-recognized entity disappears in whole or in part to be
succeeded by some other authority, thus precipitating problems of
transmission of rights and obligations. However, the question of
state succession does not infringe upon the normal rights and
duties if states under international law. These exist by virtue of
the fundamental principles of international law and as a
consequence of sovereignty and not as a result of transference
from the previous sovereign. The issue of state succession should
also be distinguished from questions of succession of governments,
particularly revolutionary succession, and consequential patterns
of recognition and responsibility.(54)
Obviously the
problem is different in the case of total acquisition from what it
is the case of partial acquisition. In the former case there is no
surviving person to whom antecedent rights and obligations may
still be attributed, whereas in the latter case there is. The
problem in the one case is to ascertain what rights and
obligations pass to the Successor State and what lapse for want of
a juridical entity in which they can be invested. The problem in
the other case is to distinguish those rights and obligations,
which are automatically transferred to the successor state from
those, which remain with the Predecessor State.
Who decides
whether State succession has taken place? The international
community can influence this determination. Third State decisions
are not, however, determinative, creating a problem similar to
that of recognition of States: As third States cannot recognize an
entity as a sovereign State that does not want to be one, likewise
third States cannot impose their view in cases of State
succession. Thus the claim of Estonia, Latvia and Lithuania not to
be successor States to the Soviet Union has been generally
accepted in State practice. Although third States cannot force
sovereignty upon an unwilling entity, third States can withhold
recognition, and thus undermine a State's claim to succession. For
example, the international community disregarded Yugoslavia's
(Serbia and Montenegro) claim to be identical with the SFRY since
recognition would not have been compatible with the recognition of
Slovenia, Croatia, Bosnia and Herzegovina, and Macedonia as
sovereign States with internationally recognized frontiers. It is
precisely these frontiers that were questioned by the Federal
Republic of Yugoslavia through its claim to be identical to the
former SFRY.(55)
V. Succession
to State Debt and State Property: Negotiated Settlements
1. Vienna Convention on Succession of States in Respect of State
Property, Archives and Debts, 1983 - A General outline.
Vienna II was drafted on the basis of 13 reports elaborated by Mr.
Mohammed Bedjaoui, the special rapporteur. The Convention was
adopted with 54 votes in favor (mainly socialist and developing
States), with 11 votes against and 11 abstentions (Western
States). It has not entered into force, as it obtained only 6
accessions out of the fifteen required - Croatia, Estonia,
Georgia, Slovenia, the former Yugoslav Republic of Macedonia and
Ukraine. Six other States have signed the Convention.
Significantly, States having deposited their instrument of
accession are all emerged from the disintegration of the USSR and
the SFRY.(56)
General
provisions of the Convention (Art.1-6, concerning definitions,
non-retroactivity of the Convention, requirement of conformity of
succession with international law, general clause concerning
guarantees of rights of third parties and individuals, etc.)
correspond with the respective provisions of the Vienna Convention
of 1978 on the succession of States in respect of treaties.
Substantive provisions of the Convention can be divided into two
groups: general provisions concerning all the types of succession,
and specific regulations dealing with particular types of
succession. The State property was defined as all kinds of
property, rights, and interests that, at the date of the
succession of States, belonged to the Predecessor State in
accordance with its domestic law. During the codification
conference a special provision was added in order to guarantee the
integrity of the predecessor’s property before its transfer to the
Successor State (Art.13).(57) The effects of the transfer of State
property were defined in Art.9 of the Convention, according to
which the property rights of the predecessor State expire and they
are replaced by the equal (as to the scope) rights of the
successor State. The transfer of the property cannot influence any
possible rights and interests of third parties. The Predecessor
State is not entitled to any indemnity. Finally, a general rule
providing for the priority of an agreement between the Predecessor
State and Successor State (so called devolution agreement) as to
the partition of State property was confirmed.
In all the
types of State succession the transfer of an immobile property to
the successor was confirmed. Specific regulations concern a
destiny of mobile property in particular types of succession. In
the case of cession, the successor State acquires the part of the
mobile property connected with the predecessor’s activities in the
ceded part of the territory. In the case of the uniting of States,
clearly and manifestly logical solution provides that the
successor State acquires the whole property of the predecessor
State or States. According to Art.17 and 18 of the Convention, in
cases of separation and dissolution of States the successor State
acquires the immobile property situated in its part of the
territory, the mobile property related to the activities of the
predecessor State in the respective part of the territory, and -in
the case of dissolution only- an equitable share of the remaining
mobile property as well as of the property of the predecessor
State situated abroad (both mobile and immobile). Finally, special
provision of Art.15 dealt with the position of the newly
independent States (i.e. former colonies). Those 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. In particular, the proviso
of Article 15, paragraph 4, as well as Art. 38, paragraph 2, with
regard to debts, establishing that the devolution agreements with
newly independent States shall not infringe the principle of the
permanent sovereignty of every people over its wealth and natural
resources lead to the rejection of the Convention by the Western
States.
Art.19-31 of
the Convention dealt with the succession in respect of State
archives and constitutes
leges speciales
in relation to the
provisions concerning the State property. General provisions of
that chapter correspond with the regulations concerning the State
property. Specific regulations relating to the respective types of
succession provide for the primacy of the devolution agreement. 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.
Other documents should be reproduced upon request, at the expense
of the successor State. The provisions concerning secession and
dismemberment provide for the partition of the archives of the
predecessor State in accordance to the model elaborated in the
case of cession. Finally, in the case of the unification of States
the successor State acquire all the archives of the predecessor
State - in most cases all the archives are situated in its
territory anyhow. Special provisions guaranteed also a privileged
position of the newly independent States, which should obtain a
part of all the archives of the former metropolis. The solution
would seem contrary to Art. 25 of the Convention, proclaiming the
principle of the unity of archives. Nevertheless, the fact that
part of the archives obtained is closely related to the newly
independent State, in particular to its territory, explains that
choice.
According to
Art. 33, the Convention regulated the succession of financial
obligations of States towards other States, international
organizations and other subjects of international law, then
excluding private parties. The Convention did not refer to any
classification of debts mentioned above. Another important
provision of the Convention reads that the succession of States
itself does not infringe any rights of the creditor. That clause
is important in the light of the general provision that the
succession cannot infringe rights and duties of third parties. The
rights of the creditor cannot be changed by a mere devolution
agreement. In all cases in which a partition is required, the
criterion generally adopted by the Convention was that the debt
passes to the successor State in an equitable proportion. The
exception was the situation of the newly independent States, for
which no debts pass to them, unless an agreement provides
otherwise, provided that this agreement does not infringe the
principle of sovereignty of peoples over wealth and natural
resources (Article 38). Again, this solution was one that provoked
the rejection of the Convention by Western States. As to other
particular types of succession, in the case of the cession the
primacy of the agreement between the parties was emphasized. If
there was no such agreement, the successor State should pay an
equitable share of the debt of the predecessor State debt. Similar
solutions were applied in cases of secession and dismemberment of
the predecessor State (Art.40 and 41) - the debt should be divided
into proportional shares. With the exception that the property,
rights and interests that pass to the successor State shall be
taken into consideration for the determination of an equitable
proportion, the Convention did not indicate any other criteria of
equitable partition. Finally, in the case of unification of
States, the debt should be paid by the successor State.
2. State
Succession to Assets and Debts
The primary rule with regard to the allocation of assets
(including archives) and debts in succession situations is that
the relevant parties should settle issues by agreement. Virtually
all of the rules that are formulated in Vienna II are deemed to
operate only where such agreement has not taken place. In addition
the Yugoslav Arbitration Commission declared in Opinion No. 9 that
the successor States to the SFRY must together settle all aspects
of the succession by agreement”(58) and reinforced this approach
in Opinion No. 14, declaring that the first principle applicable
to State succession is that the successor States should consult
with each other and agree a settlement of all questions relating
to succession.(59)
The public
debt (or national debt) is that debt assumed by the central
government in the interests of the State as a whole. It
constitutes a particularly sensitive issue since third parties are
involved who are often reluctant to accept a change in the
identity of the debtor. And as article??? of Vienna II notes a
succession of States does not as such affect the rights and
obligations of creditors. Art. 40 of Vienna II provides that where
part of a state separates to from another state, unless otherwise
agreed, the state debt of the predecessor state passes to the
successor state
in an
equitable proportion
taking into account in particular the property, rights and
interests which pass to the successor state in relation to that
debt. It is doubtful that this proposition constitutes a
codification of customary law as such in view of the confused and
disparate practice of States to date, but it does reflect a viable
approach.
(Brownlie) It
follows from what has already been said that the successor state
has a right to take up fiscal claims belonging to the former
state, including the right to collect taxes due. Zemanek(60)
confines succession to the situation where before independence an
autonomous political dependency has through the agency of the
metropolitan power contracted a ‘localized debt’, which is
automatically attributed to the new state after separation. In
practice municipal courts will enforce obligations of the
predecessor state against the successor only when the latter has
recognized them. When the successor state is a ‘newly independent
state’, no state debt shall pass, except by agreement (and then
only if certain other conditions are satisfied) (Art. 38).
According to Article 2(I)(e) a ‘newly
independent state’
means a successor state the territory of which has been ‘a
dependent territory for the international relations of which the
predecessor state was responsible’.
Public debts
may be divided into national debts, being debts owned by the State
as a whole; local debts, being debts contracted by a
sub-governmental territorial unit or other form of local
authority, and localized debts, being debts incurred by the
central government for the purpose of local projects or areas.
Local debts
clearly pass under customary international law to the successor
State, since they constitute arrangements entered into by
sub-governmental territorial authorities now transferred to the
jurisdiction of the successor state and a succession does not
directly affect them, in effect, they continue to constitute debts
borne by the specific territory in question.(61) Similarly,
localized debts, being closely attached to the territory to which
the succession relates, also pass to the successor state in
conformity with the same territorial principle.
In truth, one
cannot provide a definitive answer to the question as the
allocation of the national debt as such. In the case of secession
or separation where the predecessor state continues to exist, it
would appear that the presumption is that the responsibility for
the general State after the succession.(62)
With regard to
secured debts, the general view appears to be that debts secured
by mortgage of assets located in the territory in question survive
the transfer of that territory. In question survive the transfer
of that territory. The Treaties of St. Germain and Trianon in
1919, for example, (article 203 and 186 respectively) provided
that assets thus pledged would remain so pledged with regard to
that part of the national debt that had been agreed would pass to
the particular successor state. Such debts had to be specifically
secured and the securities had to be
railways, salt
mines or other property.(63) However, where debts have been charged to
local revenue, the presumption would lie the other way.
**************
References
1. See D.P. O'Connell, Reflections on the State Succession
Convention, 39 ZaoRV 725 (1979).
2. Jennings, ‘General Course on Principles of International Law’,
121 RdC (1967), at 437.
3. Yearbook ILC (1974 - II, part i), at 168, para. 51. See also
Castrén, ‘Obligations of States Arising from the Dismemberment of
Another State’, 13 ZaöRV (1951) 753.
4. The problem of state succession was placed on the ILC’s agenda
at its first session in 1949, following the recommendation of
Lauterpacht in his survey (UN Doc. A/CN.4/1/Rev.1, 10 Feb. 1949),
1 Yearbook ILC (1949) 53, UN Doc. A/CN.4/Ser.A/1949.
5. Vienna Convention on State Succession in Respect of Treaties,
17 ILM (1978) 1488; Vienna Convention on State Succession in
Respect of Property, Archives and Debts, 1983, 22 ILM (1983) 306.
6. Ethiopia, Iraq, Slovakia and Yugoslavia ratified Vienna I;
while Dominica, Egypt, Estonia, Morocco, Seychelles, Tunisia and
Ukraine have acceded. Bosnia and Herzegovina, Croatia and Slovenia
have succeeded. No States have ratified Vienna II and only
Croatia, Estonia, Georgia and Ukraine have acceded
7. Vienna Convention on Succession of States in Respect of
Treaties, Aug. 23, 1978, U.N. Doc. A/CONF.80/31 (1978)
[hereinafter Vienna I].
8. Vienna Convention on Succession of States in Respect of State
Property, Archives and Debts, Apr. 8, 1983, U.N. Doc.
A/CONF.117/14 (1983) [[[hereinafter Vienna II].
9. Vaclav Mikulka, State Succession and its Impact on the
Nationality of Natural and Legal Persons and State Succession in
Respect of Membership to International Organizations, in Outlines
Prepared by Members of the Commission on Selected Topics of
International Law, U.N. GAOR Int'l Law Comm'n, 45th Sess., at 26,
39, U.N. Doc. A/CN.4/454 (1993).
10. Id. at 33.
11. See Report of the International Law Commission to the General
Assembly, 39 U.N. GAOR Supp. (No. 10) at 1, U.N. Doc. A/36/10
(1981) [hereinafter Report of the ILC]; Report of the Commission
to the General Assembly, U.N. Doc. A/9610/Rev.1 (1974), reprinted
in [1974] II Y.B. Int'l L. Comm'n 157, U.N. Doc.
A/CN.4/SER.A.1974/Add.1 (Part One); see also Richard J. Graving,
Status of the New York Arbitration Convention: Some Gaps in
Coverage but New Acceptances Confirm its Vitality, 10 Foreign
Investment L.J. 1 (1995).
12. Vienna Convention on the Law of Treaties, May 23, 1969, art.
62, 1155 U.N.T.S. 331, 347 [hereinafter Law of Treaties].
13. Schaffer, ‘Succession to Treaties: South African Practice in
Light of Current Developments in International Law’, 30 ICLQ
(1981) 593.
14. H. Jolowicz, Historical Introduction to the Study of Roman Law
(1954), at 127.
15. Kevin H. Anderson, International Law And State Succession: A
Solution To The Iraqi Debt Crisis?, 2005 Utah L. Rev. 401, 406,
407. See also Akbar Rasulov, Revisiting State Succession to
Humanitarian Treaties: is there a Case for Automaticity?, 14 Eur.
J. Int’l L. 141, 148 (2003).
16. Thomas Baty, The Obligation of Extinct States, 35 Yale L.J.
(1925-26) 434.
17. Richard J. Graving, Status of the New York Arbitration
Convention: Some Gaps in Coverage but New Acceptances Confirm its
Vitality, 10 Foreign Investment L.J. 1, 24-38 (1995).
18. D. O’Connell, State Succession In Municipal Law And
International Law 14-17 (1967); F.A. Vallat, Some Aspects of the
Law of State Succession, 41 Transactions of the Grotius Soc’y 123,
134 (1956); Hubert Beemelmans, State Succession in International
Law: Remarks on Recent Theory and State Praxis, 15 B.U. Int’l L.J.
71, 115 (1997); Earl H. Fry, Sovereignty and Federalism: U.S. And
Canadian Perspectives Challenges To Sovereignty and Governance, 20
Can.-U.S. L.J., 303 (1994).
19. Id. at 24, 25.
20. Helmut Tichy, Two Recent Cases of State Succession--An
Austrian Perspective, 44 Austrian J. Pub. & Int'l L. 117, 124
(1992)
21. Statement by the Rapporteur of the Sixth Committee of the
Legal problems raised by the Representatives of Argentina during
the Discussion of the Admission of Pakistan, U.N. GAOR 6th Comm.,
2nd Sess., U.N. Doc. A/C.6/162 (1947). See Also U.N. GAOR, 6th
Comm., 2d Sess., 42d and 43d mtgs. at 37, U.N. Doc. A/CN.4/149
(1947).
22. Art. 4, Charter of the United Nations 1945.
23. D. O’Connell, State Succession In Municipal Law And
International Law (1967).
24. D. O’Connell, State Succession In Municipal Law And
International Law (1967), at 228; Odon Udokang, Succession of New
States To International Treaties 22 (1972).
25. Oscar Schachter, The Development of International Law Through
the Legal Opinions of the United Nations Secretariat, Brit. Y.B.
Int'l L. 91, 105 (1948).
26. James Crawford, The Creation of States in International Law
400 (1979).
27. De Jure Belli Libri Tres (1612, Translated by Rolfe, 1964)
III, at xxii.
28. De Jure Belli ac Pacis, II, ix, 10-12, xiv, 1, 10. See
O’Connell, supra note 3, vol. I, at 9-10.
29. De Jure Naturae et Gentium Libri Octo (1688, translated by
Oldfather and Oldfather, 1934) VIII, at xii, ss. 1-9.
30. O’Connell, ‘State Succession and the Theory of the State’,
Grot. Soc. P. (1972) 23.
31. P. Fiore, International Law Codified and its Legal Sanction
(5th ed., 1918), at 133.
32. J. Westlake, International Law (1904), at 61; Idem, ‘The
Nature and Extent of the Title by Conquest’, 17 LQR (1901) 392.
33. Matthew C.R. Craven, -The Problem of State Succession and the
Identity of States under International Law
34. Marco A. Martins, An Alternative Approach to the International
Law of State Succession, 44 Syracuse L. Rev. 1019 (1993); Scharf,
supra note 14, at 41.
35. Rein Mullerson, International Law, Rights and Politics:
Developments in the Eastern Europe and the CIS 139 (1994); Yilma
Makonnen, International Law and The New States of Africa: A Study
of The International Legal Programs of State Succession in The
Newly Independent States of East Africa 129-32 (1983).
36. Scharf, supra note 14, at 41. See also Jenks, supra note 14,
at 133-34; Vallat, supra note 7, at 134.
37. Carsten Thomas Ebenroth et al., The Enduring Political Nature
Of Questions Of State Succession And Secession And The Quest For
Objective Standards, 17 U. Pa. J. Int’l Econ. L. 753, 755 (1996).
38. D. O’Connell, State Succession in Municipal and International
Law, vols. I, at 3 (1968).
39. K. Marek, Identity and Continuity of States in Public
International Law (1954), at 205-210.
40. Article 29 of the Vienna Convention on the Law of Treaties.
41. O’Connell,
Recent problems of State Succession in Relation to
New States, 130 RdC (1970) p. 75; Mullerson, The Continuity and
Succession of States by Reference to the Former USSR and
Yogoslavia, International and Comparative Law Quarterly (1993) p.
473et seq; International Law Association, The Effect of
Independence on Treaties (1965); Zemanek, State Succession after Decolonisation, 116 RdC, p. 180 et seq.; O. Udokang, Succession
of New States to International Treaties, New York, 1972; J.H.W.
Verzijl, International Law in Historical Perspective, Leiden,
1974; Ian Brownlie, Principles of Public International Law,
Oxford, 1998, chapter 28; UN, Materials on Succession of States,
New York, 1967 and supplement A/Cn. 4/263, 1972 and UN, Materials
on Succession of States, New York, 191978; International Law
Association, The Effect of Independence on Treaties, London, 1965;
S.Torres Bernardez, ‘Succession of Staes’ in International Law;
Achive,ents and Prospects (ed. M. Bedjaoui), Paris, 1991, p. 381;
M.N.Shaw, ‘State Succession Revisited,’ 5 Finnish YIL, 1994, p.34;
Succession of States (ed. M.Mark), The Hague, 1999.
42. Case No. 2 BGs 38/91, 94 International law Reports, p. 68 et
seq., at pp. 77-8
43. See also Brownlie, op. cit., p. 655 and Jennings, The
Acquistion of Territory in International Law (1963) p. 7.
44. See Opinion No. 13, 96 International Law Reports, p. 726 et
seq., atp. 728.
45. Oppenheim’s International Law, op. cit., pp. 234-5.
46. Oppenheim’s international Law, op. cit., p.120.
47. Marek, Identity and Continuity of States in Public
International Law (1968) p. 10 et. Seq.
48. L. Oppenheim, International Law a Treatise, Edited by H.
Lauterpacht, 8th Edition (1955), E.L.B.S. reprint (1966), London.
49. Art. 2 of the Vienna Convention on Succession of States in
respect of Treaties 1978 and of the Vienna convention on
succession of States in respect of state Property, Archives and
Debts.
50. Feilchenfeld, Public Debts and State Succession (1931) p.2.
See also O. Udokang, Succession of New States to International
Treaties, New York, 1972 p. 106.
51. Vienna I, supra note 4, art. 2(1)(b) at 3; Vienna II, supra
note 5, art. 2(1)(a), at 3. Both Vienna I and II exclude cases of
State succession that have been brought about contrary to
international law. Vienna I, supra note 4, art. 6, at 6; Vienna
II, supra note 5, art. 3, at 4.
52. Vienna I, supra note 4, art. 2(1)(e), at 3; Vienna II, supra
note 5, art. 2(1)(d), at 3.
53. D.P. O'Connell, The Law of State Succession I-2 (1956).
54. See O’ Connell, State Succession, vol. I, chapters 8 and 14.
55. On December 16, 1991, the member States of the European
Communities have, in the framework of their political cooperation,
adopted a "Declaration on Yugoslavia and on the Guidelines on the
Recognition of New States" demanding the respect of the
inviolability of boundaries. European Community: Declaration on
Yugoslavia and on the Guidelines on the Recognition of New States,
Dec. 16, 1991, 31 I.L.M. 1485 [hereinafter Guidelines on the
Recognition of New States].
56. International Law Association, Berlin Conference (2004),
Aspects of the
law of State Succession.
57. The issue was decided by the PCIJ in the Chorzow factory case,
PCIJ Publ. Series A, No.7, at 30.
58. 92 International Law Reports, p. 205.
59. O’Connell, op. cit. vol. I, p. 199 et seq.; Feilchenfeld, op.
cit.; Materials on Succession of States in respect of Matters
other than Treaties (1978); Rousseau, Droit International Public,
tome III (1977) p.374; Hoeflich, Through a Glass Darkly;
Reflections upon the History of the International Law of Public
Debt in Connection with State Succession, University of Illinois
(1992) p. 39; Streinz, - Succession of States in Assets and
Liabilities- A New Regime?, 26 German Yearbook of International
Law (1983) p.198; Degan,
State Succession Especially in Respect
of State Property and Debts, IV Finnish Yearbook of International
Law (1993) p. 130.
60. 116 Hague Recuiel (1965, III), 225-70. See also Pittacos v.
Etat Belge, ILR 45, 24 at 31-2.
61. O’Connell, op. cit. vol. I, p. 416 et seq.
62. Ottoman Public Debt case, 1 UNRIAA, p. 529.
63. O’Connell op. cit. vol I. Pg. 411.
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