MODULE 5: STATE SUCCESSION

State succession can arise from Transfer of territory from one state to another through
cession, annexation of colonial territories, federation or dissolution.

In decolonization, problems of succession arise in other contexts, including secession, the

dismemberment of existing states, and the formation of unions of states.

Post succession, the general principle followed is the principle of continuity, which states that
in cases of state and government succession, the state may retain their legal identity from its
preceding states. Ex- Russia continued its legal identity post USSR.

In case the succeeding state accedes to all rights and duties of the previous state, it is known
as universal succession.

The primary document providing for state succession is the Vienna Convention on State
Succession and Treaty Obligations (1978) , which provides for different territorial
rearrangements. There is also draft articles on nationality in case of state succession,
which has not yet been enforced.

Vienna Convention on Succession of States in Respect of State Property, Archives, and

Debts of 1983 (Other Succession Convention) is also important

Article 2(1)(a), 1978 Convention defines State sucession as the replacement of one state by
another in the responsibility for the international relations in territory/ (Article 2 (12)a of
1983 Convention

The Treaty Succession Convention applies only to the effects of a succession occurring “in
conformity with international law.” Hence, its prescriptions will not apply to transfers of
territory through the use of force or in violation of the principle of self-determination.

The Other Succession Convention deals with state succession in respect only to the categories
listed—state property, archives, and debts—and is inapplicable to other subjects. Like the
Treaty Succession Convention, the Other Succession Convention applies only to the effects
of succession that occur lawfully in accordance with the principles of the U.N. Charter
Draft articles and ILC

Art. 14 Of the UN Charter provides the GA with the power to initiate studies of general
principles of international law, and encourage progressive development of international
law and codification of international law. There was a committee if 17 formed to look into
this- they gave a recommendation to the 6th committee of the GA (legal committee). In 1947
the INGA came out with a resolution to permanently establish the international law
commission.

ILC- they mainly looked into the codification and progressive development of international
law, and their drafts reflected this.

Law on state succession

• Under art. 2(1)(a) of the succession convention- state succession is deal with. This
legal framework applied only to those successions happening in conformity with
international law.
• 1978 convention on State Succession- 20 states signed and 3 states have ratified. It
has been acceded by seven states. 4 states have been registered as successor.
• The 1983 convention on the other hand is signed only by 6 states.
• 1999- ILC gave the draft text on nationality of natural persons in relation to
succession of states. This has not yet been adopted by the General Assembly.

Theories on state succession

• Universal succession- The state retains all rights and obligations as the predecessor
state, thereby universally succeeding the old state.
1. Theory developed by Hugo Groitus
2. Provides that state succession s different from Private Law succession
3. Defect- why are all treaties and obligations being forced upon the new state.
• Non succession theory- This is a positive law principle which advocates the clean
slate doctrine. Provides that under state succession, the will of the state changes- so no
more treaty rights and international obligations to be followed.
Defect- Sometimes it is in the interest of the states to retain rights. Further there is not
enough state practice to show such a law.
• Partial succession- Middle ground
Membership of international organizations

Art. 4 accords with the prevailing view that principles of state succession to treaties have no
application to membership of international organizations. Instead, it depends upon the
particular constitution or the rules of the of the organization.

The UN Charter makes no provision for succession to membership-

Art. 4(2) simply states that 1. membership is open to all peace-loving states which accept the
obligations under the charter and are able and willing to carry out such obligations 2. The
admission of any such state to membership of the United Nations will be affected by a
decision of the General Assembly upon the recommendation of the Security Council.

Matter of Concern to newly independent states: membership of UN, IMF or ILO or it may be
for EU or NATO

- The central issue is whether such organizations will readily extend admission
opportunities to new states, or whether they will be extended membership by virtue of
a predecessor’s membership.
- Joining an organization as a new member or as a successor to the membership of an
existing state can be of considerable significance.

Cases

C- Pakistans membership in the UN

Facts: Pakistan’s membership on gaining independence by splitting from India in 1947. •

Pakistan claimed that it should be treated as an original member of the United Nations by
virtue of India’s membership in the [Link] thought itself as a member of the
UN as India was a member before partition.

Held: The Legal Committee of the U.N. Secretariat disagreed, concluding that Pakistan was a
new state and as such must apply. It was considered that while India had a mere frontier
change with the partition and hence need not apply for membership again, Pakistan is a new
state altogether, and hence have to apply for a new membership under Art. 4. (This was done
by the UNGA 6th committee along with the secretariat).

It was also held that a state does not “ cease to be a Member simply because its Constitution
or frontier has been subjected to changes, and that the extinction of the State as a legal
personality recognized in the international legal order must be shown before its rights and
obligations can be considered thereby to have ceased to exist.”

In 1947, following the debate about whether Pakistan could succeed to British India’s
membership, the Sixth Committee of the General Assembly adopted the following principles
as embodying its views on the legal rules ‘to which, in the future, a State or States entering
into international life through the division of a Member State of the United Nations should be
subject.

1. That, as a general rule, it is in conformity with legal principles to presume that a State
which is a Member of the organization of the United Nations does not cease to be a Member
simply because its Constitution or its frontier have been subjected to changes, and that the
extinction of the State as a legal personality recognized in the international order must be
shown before its rights and obligations can be considered thereby to have ceased to exist.

2. That when a new State is created, whatever may be the territory and the populations which
it comprises and whether or no they formed part of a State Member of the United Nations, it
cannot under the system of the Charter claim the status of a Member of the United Nations
unless it has been formally admitted as such in conformity with the provisions of the Charter.
3. Beyond that, each case must be judged according to its merit

C-USSR Dissolution

Facts:

Russia, in a letter to the secretary-general, claimed that it would maintain the Soviet Union’s
membership, including the permanent membership of the Security Council. former members
of the USSR, in the name of the Commonwealth of Independent States (CIS), formally
announced their support of Russian succession to the USSR’s membership, including
permanent membership in the Security Council. The secretary-general circulated the request,
and the member states did not object to Russia’s succession. Although Russia’s succession to
the USSR’s membership in the United Nations was fairly smooth, it was not without
opposition.
Issue: legality of the succession, especially given the U.N. Charter in Article 23(1) specifies
the Union of Soviet Socialist Republics, and not the Russian Federation, as a permanent
member of the Security Council.

The main legal issue was whether the Russian Federation was a new state or the continuation
of the Soviet Union.

C- Yugoslavia

Facts:

After dissolution of the Socialist Federal Republic of Yugoslavia (SFRY), the new Federal
Republic of Yugoslavia (FRY) claimed a right to succeed to its membership of the United
Nations.

Security Council, by an overwhelming vote of twelve in favor with three abstaining, decided
that the Serb-dominated government of the FRY “cannot continue automatically the
membership of the former Socialist Federal Republic of Yugoslavia in the United Nations.”

Members of the Security Council explained that such a decision was mostly based on the lack
of support from the former members of the SFRY. Shortly thereafter, the General Assembly
followed the Security Council’s lead, as 127 members voted congruently while only six
dissented.

Held: The International Court of Justice also sided with the Security Council and the General
Assembly as it dismissed a genocide action brought by the FRY against NATO in 1999. The
court held that it did not have jurisdiction to hear the case because, at the time of filing, the
FRY was not a member of the United Nations. In 2000, the FRY was admitted to the UN as a
new state.

C- Syria

Merger of Egypt and Syria in 1958 to form UAR:

UAR : single member

On dissolution in 1961, Syria resumed its separate membership of organization • Merger of

North and South Yemen in 1990, the new state replaced the predecessor

New states of Czech Republic and Slovakia as new members in 1993

SUCCESSION AND NATIONALITY

There are two distinct views about nationality

1. The dominant view holds that nationality changes automatically to that of the
successor state: because it is not only the sovereign authority but also the duty of the
successor state to confer nationality to a population localized on the territory
concerned.
2. The other view maintains that nationality is essentially a matter of domestic
jurisdiction and hence it is up to the national law of the successor state to decide.

Nationality

Nationality is relevant in international law as the international rights and obligations result
from this link between the state and its nationals.

The 1930 conventions on certain questions relating to conflicts of nationality art. 1 states that
It is for each State to determine under its own law who are its nationals. This law shall be
recognised by other States in so far as it is consistent with international conventions,
international custom, and the principles of law generally recognised with regard to
nationality.

In 1923, the Permanent Court of International Justice stated in the Nationality Decrees in
Tunis and Morocco case that: “in the present state of international law, questions of
nationality are … in principle within the reserved domain”.

• Under art. 3 of the European convention of nationality

o states were given the liberty to determine who its nationals were through their
domestic laws.
o This law is to be accepted by other states so far as it is applicable to
conventions, customs and principles of law recognized in relation to
nationality.

Both the Convention concerning Certain Questions Relating to the Conflict of Nationality
Laws and the European Convention on Nationality confirmed that questions concerning
nationality are within the jurisdiction of States. This principle is now customary international
law.
Limitations to nationality

a. Art. 5(d)(iii) of CERD- upon conferring of nationality there should not be any
distinction as to race, colour, or national or ethnic origin.
b. Art. 5(1) of European Convention- prohibits any discrimination on grounds of sex
and religion.
c. Art. 9(1) CEDAW – obliges state parties to confer equal rights to men and women-
to acquire, change or retain their nationality.
d. Art. 18(1) on Convention on Rights with Disabilities- equal treatment with regard
to nationality and binds the parties to ensure that persons with disabilities have the
right to acquire and change a nationality and are not deprived of their nationality
arbitrarily or on the basis of disability

Human Right to Nationality

• UDHR
a. Art. 15: Right to Nationality- Everyone has the right to a nationality.
b. No one shall be arbitrarily deprived of nationality nor denied the right to
change his nationality.
• Art. 19- American Declaration of the Rights and Duties of Man
• The right to acquire a nationality is explicitly laid down for children under art. 24(2)
of the ICCPR.
• Art. 7 of convention on the rights of the child
• With disabilities in Art. 18(2) Convention on the Rights of Persons with Disabilities.

Statelessness- Obligation

• 1961 Convention on the Reduction of Statelessness provides that States Parties

shall, in specific situations and under certain conditions, grant their nationality to
persons who would otherwise be stateless, that States shall not deprive a person of
their nationality if such act would render the person stateless, and that States shall in
general ensure that the application of their laws does not result in statelessness of
persons under their jurisdiction.
• Art. 4 (b) European Convention on Nationality stipulates as a basic principle that
statelessness shall be avoided
 • 1999 ILC Draft Articles on Nationality of Natural Persons in relation to the
Succession of States (Art. 4) and the Council of Europe Convention on the Avoidance
of Statelessness in Relation to State Succession of 2006 (Art. 3)
• various UNGA resolutions of recent years explicitly point out that the ‘prevention and
reduction of statelessness are primarily the responsibility of States, in appropriate
cooperation with the international community’ (eg UNGA Res 61/137, 62/124,
63/148, and 64/127)

international law and Nationality

• International law does not prescribe or prohibit certain criteria for the acquisition of
nationality by States, it limits the recognition of that acquisition in the inter-national relations
of States, ie its consequences on the international plane.

Nationality is generally given on three grounds

a. Jus soli- By birth

b. Jus Consanguinis- By descent
c. Naturalisation (staying in a place for a prolonged period of time)

The two most common connections that are generally accepted as criteria for the conferment
of nationality

There are two views on the succession of nationality

1. Dominant view- Nationality changes automatically to that of the successor state,

because it is not only the sovereign authority but the duty of the successor state to
confer nationality to the population on the territory concerned.
2. Other view- Nationality should be based on the domestic jurisdiction of the successot
state. The successor state can decide on their own domestic laws on nationality. They
only have to keep in mind their international obligations, such as the CEDAW and the
ICCPR.

Difference between nationality and recognition

1. Nationality- It is a domestic act which has international consequences (The state can
take action if their national is harmed in another state)
 2. Recognition- It is an international act done bilaterally between the states- based on
this they see if the immunities are to be granted. Here, there is a domestic effect of
international acts.

Children of Diplomats

• Customary inter-national law restricts the principle to the effect that children of
persons entitled to diplomatic immunity (Immunity, Diplomatic) in the State where
the birth occurs shall not automatically acquire that State’s nationality;
• this rule has been laid down explicitly in Art. 12 Convention on Certain Questions
relating to the Conflicts of Nationality Laws, in Art. II of the respective Optional
Protocols concerning Acquisition of Nationality to the Vienna Convention on
Diplomatic Relations (1961) and the Vienna Convention on Consular Relations
(1963), and is moreover generally recognized.
• Some States confer nationality ex lege upon certain changes in the civil status of
persons, such as the adoption or legitimation by, or the marriage with, a national of
that State.
• Although that kind of connection is traditionally recognized as legitimate under
international law, it is today only admissible within the limits of applicable treaty law,
especially with regard to the equality of women. Thus, several treaties explicitly
stipulate that neither marriage, nor the dissolution of marriage, nor the change of
nationality by her husband during marriage, shall automatically affect the nationality
of a woman
• (Arts 10 and 11 Convention on Certain Questions relating to the Conflicts of
Nationality Laws, Art. 1 Convention on the Nationality of Married Women, Art. 9 (1)
CEDAW). Art. 4 (d) European Convention on Nationality extends that rule to both
spouses. Naturally, this leaves the possibility of a extends that rule to both spouses.
Naturally, this leaves the possibility of a voluntary change of nationality in connection
with a marriage unaffected

Voluntary Naturalisation

• Voluntary naturalization is the conferment of nationality onto an alien by a formal

individual act with the consent of, and usually upon special application by, the person
concerned.
 • Under international law States are in principle free to decide on the individual
naturalization; the consent of the hitherto home State of the person concerned is not
required.
• On the other hand, there are few restrictions established in international law on the
freedom of States to naturalize, ie situations in which naturalization may be prohibited
by international law.

Binding Nationality

• The most fundamental rule on nationality is derived from the principle of State
sovereignty: a State may only regulate acquisition, loss, and consequences of its own
nationality, and not of that of other States
• • This does not exclude, however, that a State lays down rules on who is, for the
purpose of its own legislation, to be considered a national of another State; such
legislation can naturally only have a binding effect for the legislating State itself. •
Also beyond that, the discretion of States with respect to nationality is limited by the
principle of non-intervention:

Nottebohm case (Liechtenstein v. Guatemala) 1955

Facts.
Nottebohn (P), a German by birth, lived in Guatemala (D) for 34 years, retaining his
German citizenship and family and business ties with it. He however applied for
Liechtenstein (P) citizenship a month after the outbreak of World War II. Nottebohm
(P) had no ties with Liechtenstein but intended to remain in Guatemala. The
naturalization application was approved by Liechtenstein and impliedly waived its
three-year. After this approval, Nottebohm (P) travelled to Liechtenstein and upon his
return to Guatemala (D), he was refused entry because he was deemed to be a
German citizen. Without indicating the special circumstances warranting such a waiver,
Nottebohm sought dispensation from the residence requirement and undertook to pay 25,000
Swiss francs to the commune of Mauren where he had applied for acceptance into the Home
Corporation (Heimatverband), and 12,500 Swiss francs to the principality. On 13 October
1939 the Reigning Prince declared his consent to Nottebohm’s naturalization. Two days later
the consent to Nottebohm’s naturalization. Two days later the commune of Mauren conferred
its citizenship upon him. On 20 October 1939 he took the oath of allegiance, and a certificate
of nationality was issued to him, indicating that he was naturalized by supreme resolution of
the Reigning Prince. Liechtenstein citizenship was not honored. Liechtenstein (P)
thereby filed a suit before the International Court to compel Guatemala (D) to
recognize him as one of its national. Guatemala (D) challenged the validity of
Nottebohm’s (P) citizenship, the right of Liechtenstein (P) to bring the action and
alleged its belief that Nottebohm (P) remained a German national.
Issue.
Must nationality be disregarded by other states where it is clear that it was a mere
device since the nationality conferred on a party is normally the concerns of that
nation?
Germany’s contentions

According to German nationality law: Nottebohm simultaneously lost ex lege his German
nationality.

Having obtained a visa from the consul general of Guatemala in Zurich on his Liechtenstein
passport, Nottebohm returned to Guatemala at the beginning of 1940 and resumed his former
business activities.

After Guatemala had entered World War II in 1941 against Germany, Nottebohm was arrested
as an enemy alien in 1943, deported to the United States and interned there. By Legislative
Decree of 25 May 1949, Guatemala expropriated the property of all ‘private persons or
corporations holding the nationality of any of the countries with which the Republic was at
war, or who held such nationality. On that basis, the property of Nottebohm was confiscated.

Held.
• By eleven votes to three the ICJ hel ld that the claim submitted by Liechtenstein was
inadmissible, Judges Klaestad and Read and Judge ad hoc Guggenheim dissenting NO.
issues relating to citizenship are solely the concern of the granting nation. This is the
general rule. But it does not mean that other states will automatically accept the
conferring state’s designation unless it has acted in conformity with the general aim
of forging a genuine bond between it and its national aim. In this case, there was no
relationship between Liechtenstein (P) and Nottebohm (P). the change of nationality
was merely a subterfuge mandated by the war. Under this circumstance, Guatemala
(D) was not forced to recognize it. Dismissed.

Whether that unilateral act by Liechtenstein is one which can be relied upon against
Guatemala in regard to the exercise of protection

• • It is for Liechtenstein, as it is for every sovereign State, to settle by its own

legislation the rules relating to the acquisition of its nationality, and to confer that
nationality by naturalization granted by its own organs in accordance with that
legislation. It is not necessary to determine whether international law imposes any
limitations on its freedom of decision in this domain.
• Furthermore, nationality has its most immediate, its most far-reaching and, for most
people, its only effects within the legal system of the State conferring it.
 • Nationality serves above all to determine that the person upon whom it is conferred
enjoys the rights and is bound by the obligations which the law of the State in
question grants to or imposes on its nationals. This is implied in the wider concept
that nationality is within the domestic jurisdiction of the State.
• To exercise protection, to apply to the Court, is to place one self on the plane of
international law. It is international law which determines whether a State is entitled
to exercise protection and to seise the Court.
• In the present case it is necessary to determine whether the naturalization conferred on
Nottebohm can be successfully invoked against Guatemala, whether, as has already
been stated, it can be relied upon as against that State, so that Liechtenstein is thereby
entitled to exercise its protection in favour of Nottebohm against Guatemala.

Q- Whether it is obligatory for Guatemala to consider the nationality conferred on

Leichenstein through a domestic legislation? whether that unilateral act by
Liechtenstein is one which can be relied upon against Guatemala in regard to the
exercise of protection

• The character thus recognized on the international level as pertaining to nationality is

in no way inconsistent with the fact that international law leaves it to each State to lay
down the rules governing the grant of its own nationality. The reason for this is that
the diversity of demographic conditions has thus far made it impossible for any
general agreement to be reached on the rules relating to nationality, although the latter
by its very nature affects international relations. It has been considered that the best
way of making such rules accord with the varying demographic conditions in different
countries is to leave the fixing of such rules to the competence of each state
• . On the other hand, a State cannot claim that the rules it has thus laid down are
entitled to recognition by another State unless it has acted in conformity with this
general aim of making the legal bond of nationality accord with the individual's
genuine connection with the State which assumes the defence of its citizens by means
of protection as against other States

What is nationality and When it should be recognised?

 • According to the practice of States, to arbitral and judicial decisions and to the
opinions of writers, nationality is a legal bond having as its basis a social fact of
attachment, a genuine connection of existence, interests and sentiments, together with
the existence of reciprocal rights and duties. It may be said to constitute the juridical
expression of the fact that the individual upon whom it is confered, either directly by
the law or as the result of an act of the authorities, is in fact more closely connected
with the population of the state conferring nationality than with any other state
• Conferred by a State, it only entitles that State to exercise protection vis-à-vis another
State, if it constitutes a translation into juridical terms of the individual's connection
with the State which has made him its national

Applications of these rules to the current case

• • his actual connections with Liechtenstein were extremely tenuous. No settled abode,
no prolonged residence in that country at the time of his application for naturalization
: the application indicates that he was paying a visit there and confirms the transient
character of this visit by its request that the naturalization proceedings should be
initiated and concluded without delay. No intention of settling there was shown at that
time or realized in the ensuing weeks, months or years-on the contrary, he returned to
Guatemala very shortly after his naturalization and showed every intention of
remaining there. If Nottebohm went to Liechtenstein in 1946, this was because of the
refusal of Guatemala to admit him.
• These facts clearly establish, on the one hand, the absence of any bond of attachment
between Nottebohm and Liechtenstein and, on the other hand, the existence of a long-
standing and close connection between him and Guatemala, a link which his
naturalization in no way weakened. That naturalization was not based on any real
prior connection with Liechtenstein, nor did it in any way alter the manner of life of
the person upon whom it was conferred in exceptional circumstances of speed and
accommodation. ln both respects, it was lacking in the genuineness requisite to an act
of such importance, if it is to be entitled to be respected by a State in the position of
Guatemala. It was granted without regard to the concept of nationality adopted in
international relations.
• Naturalization was asked for not so much for the purpose of obtaining a legal
recognition of Nottebohm's membership in fact in the population. of Liechtenstein, as
it was to enable him to substitute for his status as a national of a belligerent.
Significance of the judgement in the Present time

• For the purposes of the diplomatic protection of a natural person, a State of nationality
means a State whose nationality that person has acquired, in accordance with the law
of that State, by birth, descent, naturalization, succession of States, or in any other
manner, not inconsistent with international law
• Although it has been followed in some cases, the genuine link requirement is not
generally accepted and therefore not part of customary international law. It has mixed
precedential value

The effective nationality test in international law

• This Nottebohm test has not been reflected under art. 4 of the draft articles on
diplomatic protection. They said that this was a special rule adopted by the ICJ for the
Nottebohm case specifically
• This rule is not a general rule- most of the time exclusively applied in investment
arbitration cases.
NATIONALITY AND SUCCESSION- DRAFT ARTICLES

• Following the dissolution of the USSR, Lithuania adopted the dominant view while
Estonia and Latvia maintained that nationality was a matter of domestic jurisdiction.
• Draft articles were created post the dissolution of the USSR, when Post Soviet states
like Latvia and Estonia started coming up with their own citizenship requirements like
1. People should know the language
2. They must have lived in the territory immediately before the dissolution.
• Lithuania adopted a policy to grant citizenship to all permanent residents who desired
to obtain Lithuanian citizenship.
• The International Law Commission was troubled by the practices of Estonia and
Latvia, and thus the draft of Nationality of Natural Persons in Relation to the
Succession of States commends the dominant view. • While the draft articles
recognize that the matter of nationality is determined through domestic legislation, it
points out that such matters raise international concerns and shall follow the limits of
international law. Hence, domestic legislation on nationality shall guarantee the
protection of human rights, namely an individual’s right to the nationality of at least
one of the states concerned. A corollary to the protection of human rights is the
prevention of statelessness and the harms which follow.
• It is divided into two parts
1. Part 1- General provisions
2. Part 2- Sprcific provisions for conferring nationality
• Important articles
a. Art. 1- Right to nationality
a. Every individual who, on the date of the succession of States, had the
nationality of the predecessor State, irrespective of the mode of
acquisition of that nationality, has the right to the nationality of at least
one of the States concerned, in accordance with the present draft
articles
b. Art. 4- Prevention of statelessness
a. States concerned shall take all appropriate measures to prevent persons
who, on the date of the succession of States, had the nationality of the
predecessor State from becoming stateless as a result of such
succession
 c. Art. 5- Presumption of nationality (purpose- address the problem of time lag
between the date of succession and adoption of legislation or as the case
maybe- in such cases the people run the risk of being declared stateless-
therefore it is important to consider a principle that on the date of succession
of states, the successor state attributes its nationality to persons who are
habitual residents of the territory affected by such succession.)

• General guidelines
a. Nationality must be granted to only those persons who have a genuine
connection with the state
b. For successor state to confer nationality on inhabitants of a predecessor state-
there must be an appropriate connection between those persons and the
territory.
c. Nationality of successor state can be conferred only if they submit voluntarily
to its jurisdiction, by virstue of an explicit declaration or voluntary return to
their land of origin.
d. Right of options must be there- in case post partition/dissolution, the
predecessor state continues to exist, the citizens must be given an opportunity
to chose nationality.
e. An agreement among concerned states of which the occurrence of
statelessness would be precluded. Despite efforts to grant its nationality to
those that establish an appropriate connection and to enlarge the circles of
persons, a single nation’s effectiveness in preventing statelessness is
inadequate.
• Specific cases of nationality granted under the convention
a. Transfer of part of territory- Transfer of territory- when one state transfers a
part of territory to another successor state- successot state shall grant nationality to
the habitual residents of such territory- and predecessor state shall withdraw
(unless there is a contrary agreement).
b. Uniting of states- All citizens of a predecessor state will be granted the
citizenship of the successor state.
 c. Dissolution of states- When a state dissolves into two or more successor state-
each of these successors shall grant nationality to those have habitual residence or
appropriate connection to the territory.
d. Separation of part or parts of territory of a state- a successor state, unless
otherwise indicated by the right of option, shall grant its nationality to those that
have their habitual residence or an appropriate connection to its territory.

TREATY OBLIGATIONS AND SUCCESSION

One of the most important aspects of state succession in the effect of changes in sovereignty
upon the changes in sovereignty upon treaty obligation

The general rules for these are those of customary international law codified under 1978
Vienna Convention on Succession of States in respect of treaties. In real practice, the, the
methods commonly professed are

a. Clean slate doctrine- Compete rejection of all obligations.

b. Devolution agreement- New state agrees to assume the rights and obligation of
treaties that the pror administering power concluded for and applied to the territory
of new state . Ex- British dependencies.
c. Temporary application- Trearies valid for temporary period. Ex Nyeyere Doctrine
(President Julius nyeyere of Tanganyika).
d. Selective application- pick and choose unilaterally
e. Deferment decision- they don’t declare their position on various treaties.

In case of political treaties, it is not an agreement no more than a treaty of friendship , does
not bind subsequent governments. In case of bilateral treaties, the clean slate doctrine is
favoured.

• Important articles
a. Art. 2- Definition of a treaty- It means an international agreement concluded
between states in written form and governed by international law, whether
embodied in a single instrument or two or more related instruments, and whatever
its particular designation.
b. Art. 11- Boundary regimes- Succession doesn’t affect boundary treaties
(Corresponds to Art. 62(2) of the VCLT- which says that fundamental change of
circumstances do not affect boundary treaties).
 c. Article 62(2) of VCLT
a. A fundamental change of circumstances may not be invoked as a ground
for terminating or withdrawing from a treaty: (a) If the treaty establishes a
boundary; or (b) If the fundamental change is the result of a breach by the
party invoking it either of an obligation under the treaty or of any other
international obligation owed to any other party to the treaty.

Treaties Running with Land

d. Art. 12- Other territorial regimes- Succession of states does not as such affect
obligation relating to the use of territory, or restrictions upon its use etc; rights
established by a treaty for the benefit of any terrirory and relating to the use, or
restrictions upon the use, of any territory of a foreign states and considered as
attaching to the territories in question.
a. Gabcˇíkovo-Nagymaros Case (Hungary/Slovakia): Taking into account
the particular nature and character of the 1977 Treaty, the ICJ noted that
the 1977 Treaty established a navigational regime for an important sector
of an international waterway, thereby inescapably affecting the interests of
third States. In the ICJ’s view, the 1977 Treaty had therefore to be
regarded as having established a ‘territorial regime’ within the meaning of
Art. 12 Vienna Convention on Succession of States in Respect of Treaties
(‘VCSS-T’), which, as a rule of customary international law, could not be
affected by the succession of a State (State Succession in Other Matters
than Treaties). Thus, by 12 votes to three (Judges Herczegh, Fleischhauer,
Rezek dissenting
Real life Practices
• Total Rejection: Doctrine of Clean Slate; Israel, Algeria and Upper Volta
• Devolution Agreement: New state agrees to assume the rights and obligations of
treaties that the prior administering power concluded for and applied to the territory of
new state; British dependencies
• Temporary Application: Nyerere Doctrine, Botswana, Burundi, Kenya, Malawi and
Swaziland
• Selective Application: pick and chose unilaterally; Congo
• Deferment of decision: non committal posture. Madagascar.
Treaties concerned with rights over property: SUCCESSION
• General Rule: where a treaty is concerned with rights over property then there will be
succession to rights and obligations. (dispositive treaty
• Dispositive treaty may relate to boundary or servitude
o This rule is based on the need for order and stability in international relations
Eg: dissolution of Spanish empire in south America
• State who succeeds the territory also succeed the boundary treat
Succession under various cases of territorial arrangement in the VCSST

a. Cession of territory- If one territory is ceded to another state. Their obligations

would be binding on the terrotry. This is known as the Moving Treaty Frontiers
Principle, as provided under art. 15 of the VCSST.
a. Article 15 Succession in respect of part of territory • When part of the
territory of a State, or when any territory for the international relations of
which a State is responsible, not being part of the territory of that State,
becomes part of the territory of another State: (a) treaties of the
predecessor State cease to be in force in respect of the territory to which
the succession of States relates from the date of the succession of States;
and (b) treaties of the successor State are in force in respect of the
territory to which the succession of States relates from the date of the
succession of States, unless it appears from the treaty or is otherwise
established that the application of the treaty to that territory would be
incompatible with the object and purpose of the treaty or would radically
change the conditions for its operation.
b. Incorporation and merger (31)-
a. When a larger country takes a smaller country within its ambit, it is known
as incorporation. Where one state voluntarily decides to be incorporated to
another, the former ceases to exist as a subject, while the terriroty of the
latter extends to that of the incorporated state.
b. The bigger countries obligations apply on the smaller one and the
latters obligations extinguish. The localized treatis however continues.
c. Merger happens when two states combine- in case of merger, both the
country’s obligations continue om the new state.
 d. German Democratic Republic, which became part of the Federal Republic
of Germany as of 3 October 1990, the former ceases to exist as a subject of
international law
e. In contrast, where two States merge to form a new State, as was the case
with regard to the Yemenite unification, the model provided for in Art. 31
VCSS-T, at least by and large, applies.
f. Accordingly all treaties entered into by either of the two predecessor
States, both of which cease to exist as of the time of unification, continue
to be in force, albeit with their territorial scope of application of such
treaties being limited to territory to which they had already been applied
beforehand
c. Article 31: Any treaty in force at the date of succession
a. Continue to be in force, unless: 1. successor and other state otherwise
agree 2. it appears from the treaty that it will be incompatible or would
radically change the conditions of the operation of the treaty
b. Such treaty will apply only in respect of the part of the territory of the
successor State in respect of which the treaty was in force at the date of the
succession, unless
i. successor make a notification in case of treaties not requiring
agreement of other parties
ii. successor State and other parties agree
iii. in case of bilateral treaties both parties agree
§ Exceptions to this rule
• If the state otherwise agrees- these rules wont apply
• Treaty obligations can also be avoided if the application of the
treaty would go against the object of the treaty.
d. Complete Dissolution of a State
a. When a part or parts of the territory of a State separate to form one or more
States, whether or not the predecessor State continues to exist, Art. 34
VCSS-T provides that, as a matter of principle, the treaties of the
predecessor State automatically continue in force in respect of each
successor State.
 b. Recent State practice, and in particular that concerning the dissolution of
the Socialist Federal Republic of Yugoslavia, as well as that concerning
the CSFR, at least somewhat tends to confirm the customary law nature of
this rule.
c. In addition, the Arbitration Commission of the Peace Conference on the
Former Yugoslavia (Badinter Commission [for the Former Yugoslavia) set
up under the auspices of the Peace Conference for the former Yugoslavia,
considered the principles of international law embodied in the VCSS-T to
constitute at least a starting point for its considerations.
e. Separation (Art. 35)- Ne separated territory would not be bound by the
predecessors obligations, again except for localized treaties (Ex UK and Scotland
separation)- Scoutland wont be bound by anything except for localized treaties
such as border treaties)
a. The most important recent example has been the case of the USSR, where
the Russian Federation is generally considered to continue the legal
personality of that State. Accordingly the continuing State automatically
continues all treaty relations of the predecessor State unless such treaties
are localized on the territory of a successor State, a result enshrined in Art.
35 VCSS-T
f. New Independent states (defined under art. 2(e))- Provided for under Vienna
Convention on State Succession- this was the case for decolonized countries.
Here, the convention stated that the clean slate doctrine would apply here (art.
16). The new state is required to choose the treaties which it wants to follow from
the predecessot state by informing the depository (UNTS).
If it is not informed, under art. 102 of the UN Charter, then such a treaty
cannot be enforced at the ICJ.
o In line with the post-independence practice of many former dependent
territories Art. 16 VCSS-T, applying the clean slate or tabula rasa principle,
provides that any such newly independent State is not bound to maintain in
force, or to become a party to, any treaty of its predecessor State, but that it
may establish its status as a party to any such treaty by way of a unilateral
declaration.
o The relatively few dependent territories which came into existence after 1978
have, by and large, followed the model prescribed by the convention and have
 in particular claimed a right to apply the terms of individual treaties inherited
from their predecessor provisionally until such time as they inform the
depository or (in the case of bilateral treaties) the respective other party
otherwise.
o Newly independent State may, by a notification of succession, establish its
status as a party to any multilateral treaty which at the date of succession was
in force in respect of the territory to which the succession of States relates
(Article 17- 19)
o Unless: it appears from treaty or otherwise, that it is incompatible or would
radically change the conditions of the operation of the treaty consent of all
parties is required

How other things would devolve

a. In case of reservations- Unilateral declaration by the state which modifies the effect
of multilateral treaties on their state. Reservations can be objected to by other states.
New state can inform the repository regarding reservations. (Art. 20).
b. For bilateral treaties- The new state can continue or not continue the treaty by
expressly or impliedly (through conduct) accepting or rejecting it. (Art. 24 and 25).
If it is to be followed, it is to be done so from the date of succession unless otherwise
established.
c. HR treaties-
a. The practice of supervisory bodies established in accordance with the various
human rights treaties, such as the Human Rights Committee, indicates that
successor States are in all circumstances bound by treaty obligations entered
into by their respective predecessor State in the field of human rights, even
where otherwise no State succession with treaties would take place.
b. The successor state is bound by the obligations of the predecessor state, even
where otherwise no state succession with treaties would take place. This has
however not been followed uniformly across state practices.
d. Public Property- 1983 Convention on the succession of state in respect of property,
archives and Debts. State property under art. 8 of this convention means property,
 rights and interests which, at the date of succession of states, were according to the
internal law of the predecessor state, governed by that state.
Public property of preceding state will be followed by the new state. What constitutes
public property will be defined by the international laws of the predecessor state.
Succession shall be based on a lex situs basis.
Under art. 15, if an immpvable property is outside the boundaries, then it would be
retained by the predecessor state, unless the parties agree otherwise. Under art. 17,
movable property of the predecessot state connected with the activities in respect of
territory to which succession of states relate to, will pass to the successor state.
However, other properties shall pass on to the successor state in equitable propeortion
only.
(Just go through the last slide again).
e. Dependant territory- wil continue with the successor state
f. Archives- Except for cultural archives, the archives without compensation would go
to the new state.