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State Succession
in a federal or real union with another state, and also including secession from a
state (Croatia and Slovenia, 1991-92); (2) the loss of the status of a state through
annexation, merger, or the imposition of a protectorate by another state (union of
the two German states); and (3) the change in sovereignty over a territory from
2 to
11 another
Subjectsthrough
of International
one state
cession (see Chapter 14).
In cases of the first category, rights and obligations under treaties have norLaw decided by so-called devolution agreements between the predecessor
mally been
state and the newly independent entity concerning the extent to which the latter
would4 assume rights and duties originally created by treaties for the predecessor
state. In cases of the second category, domestic legislation of the successor state
or premerger agreements between the prospective parties decide the status of both
rights and obligations of each entity. In cases of the third category, the successor
state alone decides the fate of both rights and obligations of the extinct
predecessor entity.
In all three categories, however, rules of international law enter into the picture, regulating the rights and obligations of predecessor and successor in relation
to outside states, to third parties.
Before entering into details, it should be emphasized that the international
personality of a state normally remains unaffected by increases or losses in
territory, with corresponding gains or reductions in population, unless the changes
in question are so profound as to change the states central organization (basic
structure) or involve a loss to the state of the core area in which its
government center is located.
A good example of dramatic growth in size and population is the development of the United States of America from its beginnings in the eighteenth
century to its present extent. Despite an enormous expansion in area and
population, the international legal personality of the United States has remained
unchanged since 1783. Relevant increases in the area of other nations, such as
Romania after 1918 or the Soviet Union after 1938, did not affect their legal
personality in any manner.
What about a shrinkage in the territory of a given state? The standard examples usually cited show that despite often drastic losses, the states remained unaffected in regard to their legal personality: Poland (partitions of 1772 and 1793)
remained unchanged from a legal point of view until 1795; Turkey, despite
losses in 1856, in 1878, in 1911-1913, and as a result of World War I,
remained legally unaffected; and if the Confederacy had succeeded in its
secession plans, the legal identity of the United States would have remained
unchanged.
The dissolution of the Soviet Union and the former Yugoslavia may yet be
followed by the disintegration of other political entities: Canada, India, Pakistan,
Iraq, and several of the successor states of the Soviet Union. The causes of these
possible dissolutions are to be found in ethnic, religious, and historic enmities
and conflicts, mostly related to a revival of nationalism.
part
STATE SUCCESSION
Universal Succession
XTINCTION
BY
OLUNTARY
CT
OW
ERGER
XTINCTION BY
IGHTS AND
IGHTS AND
ORCIBLE
EANS
BLIGATIONS OF A
BLIGATIONS OF THE
UCCESSOR
OTALLY
TATE
XTINCT
TATE
The extinction of the personality of a state results traditionally in an abrogation of all political and military treaties previously concluded between the now
extinct entity and other states. This is true, of course, only in the case of total
extinction; if succession involves only a portion of the original owners territory,
4 11
of International
the latter
is Subjects
still bound
by treaties with other countries because such a states
legal personality continues alive; only those provisions of treaties relating to lost
parts ofLaw
the territory no longer bind the former sovereign.
Despite the absence of applicable rules of law, successor states have
generally been willing to assume contractual obligations of the extinct state with
respect to third states or the citizens of such states. This has been true in the
case of contracts involving concessions such as mining rights and transportation
facilities.
On the other hand, no common practice can be discovered in relation to the
debts contracted by the predecessor state. Debts owed to the citizens of the latter
become domestic questions of the annexing state. In the case of partial succession
of the sort described in the next section, the instrument transferring the areas in
question may regulate such questions. Debts owed to third states or their citizens
may or may not be honored by the successor state. The government of the
United States took over the debts of its member states in 1790, but it refused in
1845 to assume the obligations of the Republic of Texas, although arrangements
were made to pay the sum in question out of the proceeds of the sale of public
land in Texas. Croatia and Slovenia appear to have taken over a portion of the
Yugoslav national debt (1991-1992).
On January 13, 1992, the Ministry of Foreign Affairs of the Russian
Federation informed all foreign missions in Moscow that the Federation
should be considered as a party to all international agreements in force in
place of the USSR. The Federation thereby assumed all treaties that had
been binding on the Soviet Union at the time of the latters demise.
part
Partial Succession
UBLIC AND
RIVATE
ROPERTY
IGHTS
6 State Succession 91
Slovenia,
and
the
Federal
Republic
of
Yugoslavia
(Serbia/Montenegro) were the successors to the assets and
liabilities of the former Yugoslavia in the IMF
Private property rights in territory ceded by one state to
another or annexed by another are not formally affected by the
change. Titles to land, provided they were complete and perfect at
the time of change, are usually protected by the successor state,
unless the latter is of the socialist variety and supports the
nationalization of all land.
chapter
F
D
Debts of the transferred area may or may not be
assumed by the new sovereign; writers have commonly asserted
that at least such debts as have been closely associated with the
development of the transferred territory ought to be assumed by
the successor state. But most successor states have in practice been
reluctant to assume such obligations. On occasion, however, the
successor state has assumed domestic and/or foreign debts. Again,
when it has been shown that a particular debt had been incurred
solely for the benefit of the transferred area, a few successor states
have actually assumed the debt.
An unusual feature of the 1919 peace settlement with
Germany was the acquisition of all German governmental property
in the ceded areas by the successor states and payment for such
property by the successor states to the Allied Reparations
Commission (except for territories ceded to Poland). The successor
states (except for France) also assumed portions of the German
debt, both national and state, proportionate to the area in each
transfer in question.
When part of a state is transferred to another state, the passing
of the state debt (internal) from predecessor to successor normally
is settled by agreement between the parties. Article 37(2) of the
1983 Vienna Convention provides that in the absence of such an
agreement, the predecessors state debt is to pass to the successor
state in an equitable proportion.
On the other hand, when the successor is a newly independent
state (say, an ex-protectorate or an ex-colony), no state debt of the
predecessor state normally passes to the new entity unless an
agreement between the parties provides otherwise in view of the
link between the predecessors state debt and its activities in the
newly independent area. When two or more states unite to form
one successor state, the state debt of the two or more predecessors
passes on to the new entity. When part or parts of a states
territory separate from that legal person and form a state, the state
debt of the predecessor state passes to the successor state on a proportional basis, unless the parties agree otherwise. And finally,
when a state dissolves and ceases to exist and the parts of the
DOMESTIC
AND
OREIGN
EBTS
6 State Succession 91
predecessor states territory form two or more successor states, the
state debt of the dissolved unit passes, normally, in equitable
proportions to the successor states.
Unless otherwise decided between the parties (states) involved,
debts owed to the predecessor state by virtue of its activities in the
territory to which title is being passed become debts owed to the
successor state.
chapter
T
One other aspect of state succession merits brief
examination, in view of the number of controversies it has caused
in international relations.
EFFECTS
ON
REATIES
98 11 Subjects of International
If one party to an international agreement changes its form of
Law government or expands or contracts its geographical boundaries,
the provisions of the treaty in que tion are usually not affected by
such changes, even if the expansion of territo involves the
inclusion of other former states in the one that is a party to the
agreement. Unless the changes suggested the desirability of new
treaties, the pri agreements have generally been regarded as
remaining in full force and effect.
The Russian Federation became solely responsible on
November 23, 1992 for the enormous domestic and foreign
indebtedness of the Soviet Union, after non-Russian republics in
the CIS refused to assume that debt. The total at the ti was
estimated at $60-100 billion. All ex-Soviet components except
the Federati had refused to honor an earlier agreement to
collectively assume the debt. Ru had been scheduled to be
responsible for only 61 percent of the total.
The many questions about state succession with respect to
treaties, raised the emergence of several new countries after
World War II, led to the adoption a UN Conference (Vienna,
1978) of the Vienna Convention on State Succession States in
Respect of Treaties. That document is not in force, however.
The comprehensive coverage of this treaty answers almost all
questio imaginable; yet by its very breadth it exceeds the limits
of discussion possible a general text. But one aspect of the
subject should be kept in mind: the new ' strument covers in
detail the absence of applicability of past treaties conclud by the
original sovereign, not only with respect to former colonial
territories, but also with respect to seceding territories (unless, of
course, the newly independent colony or newly seceded
territory
5
agrees specifically to be bound by treaties in question).
The fate of the treaties concluded by the former Soviet Union
illustrates w is likely to happen in the instance of total extinction.
In the so-called Minsk Dec ration of December 8, 1991, the
Commonwealth of Independent States (CIS) serted that the States
members... undertake to discharge the internation obligations
incumbent
on them under treaties and engagements entered
into by
L
6
t former Union of Soviet Socialist Republics. Since then,
individual ex-Soviet successor states have acceded to a variety of
the multipartite treaties to which the Soviet Union had been a
party. It is not clear at the time of writing whether simiL.
acceptances have been made concerning the vast number of
bilateral agreements made by the Soviet Union with other states. In
the case of the defunct Yugoslavia, successor states have deposited
with the UN Secretariat statements of succession to a large number
of multipartite agreements such as the genocide convention,7 th
human rights covenants, the anti-slavery convention, and so on.
part
chapter
6 State Succession 99
ILATERAL
TATES
REATIES
6See Friedman, 483, for such an agreement between the United Kingdom and
Nigeria.
EMAINDER OF A
TATE
TATE
LAIMS
FTER
ARTIAL
UCCESSION AND
GAINST
AN
UCCESSION
ERVITUDES
XTINCT
TATE
chapter
1994 Problems