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State Succession In International Law-Debt, Property and Asset

Written by: Divyam Agarwal & Mohit Goel - Final Year Students, Amity Law School Yasho Bhawan, New Delhi
Cyber Law
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  • 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.

    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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