STATE SUCCESSION TO RIGHTS AND OBLIGATIONS

L4304 — International Humanitarian Law II | National University of Lesotho

WHAT IS STATE SUCCESSION?

State succession deals with what happens to a state's rights and obligations when that state undergoes a
fundamental change — particularly when sovereignty over territory changes hands.

The core question is: when one state replaces another over a territory, what happens to the treaties, debts,
property, and other legal relationships that existed before?

When Does State Succession Occur?

• Total dismemberment — an existing state completely breaks apart into entirely new states (e.g. collapse
of Yugoslavia).
• Successful secession — part of a state breaks away and becomes independent (e.g. South Sudan from
Sudan, 2011).
• Decolonization — a colonial territory gains independence (e.g. Lesotho from Britain, 1966).
• Merger — two or more states unite to form one new state (e.g. Tanzania from Tanganyika and Zanzibar,
1964).
• Partial cession or annexation — one state transfers part of its territory to another.

STATE SUCCESSION vs SUCCESSION OF GOVERNMENTS

These are two completely different concepts and must not be confused.

Issue State Succession Succession of Governments

What changes? Sovereignty over territory — external change Who governs the state — internal change

Example A colony becomes independent A military coup replaces a democratic

government

Does the state Yes — a new state emerges or territory No — same state continues under new
change? transfers leadership

Key legal question Do rights/obligations transfer to the new state? Does the new government inherit the old
government's rights/obligations?

Key case: Molefi v Legal Adviser and Others (1970) 3 ALL ER 724

The Continuing State Problem

A crucial threshold question must be answered: Is the new entity a completely new state, or a continuation
of the predecessor?

• A continuing state inherits all predecessor rights and obligations automatically.

• A new state starts fresh and what it inherits must be separately determined.
Examples: Upon partition of British India (1947), India was treated as the continuation of British India; Pakistan
was a brand new state. Upon USSR collapse, Russia was the continuing state — retaining the USSR's UN
Security Council seat.
STATE PRACTICE — THE GENERAL APPROACH

State practice is unsettled and inconsistent. The working rule is to look at the texts of relevant laws, treaties,
declarations, and arrangements made at the time of the change of sovereignty, and ascertain the intention of
the states concerned.

The guiding consideration is what is just, reasonable, equitable, and in the interests of the international
community.

South Africa: Section 231(5) of the Constitution states that the Republic is bound by international agreements
binding on it when the Constitution took effect.

SUCCESSION TO TREATIES

Vienna Convention on Succession of States in Respect of Treaties (1978) — operational from 6 November
1996.

The Convention favours the clean slate approach, reflecting the views of newer post-colonial states.

The Clean Slate Theory

A newly independent state starts with a clean slate — it is not automatically bound by the treaties its
predecessor concluded.

Rationale: Free choice, self-determination, sovereignty over own resources.

Multilateral Treaties (many parties):

• Successor state is not required to become party simply because the predecessor was.
• Has the option to become a party by issuing a notification of succession.

Bilateral Treaties (two parties):

• Succession only occurs when successor state and the other contracting state expressly or impliedly
agree to continue the treaty.

Exception — Territorial Treaties

The clean slate theory does NOT apply to:

• Treaties establishing boundaries

• Treaties establishing the regime of a boundary
• Treaties imposing restrictions on territory for the benefit of another state
Rationale: If new states could reject boundary treaties, the world would face territorial chaos. Borders must
remain stable.

Article 11 declares that boundary treaties and attached rights/obligations are not affected by succession.

Key case: Libya/Chad Case (ICJ Reports 1994) — the ICJ confirmed that a boundary treaty survives state
succession.

Newly Independent (Decolonized) States — Article 2(1)(f)

• Not bound to maintain or become party to any treaty simply because the colonial power was a party.
• May opt in to multilateral treaties by notification of succession.
• For bilateral treaties, succession requires agreement between successor and other party.
• Exceptions: Articles 11 and 12 still apply — boundary and territorial treaties remain binding.
 Mergers — Article 31
Where two or more states unite to form one new state:

• Treaties in force for either predecessor state continue in force for the successor state.
• Unless: all parties agree otherwise, or the treaty's purpose would be incompatible with application to the
merged state.
• Treaty initially applies only to territory it previously covered — unless successor notifies otherwise.

Separation — Articles 34 and 35

Article 34: Any treaty in force for the entire predecessor state continues in force for each successor state
formed from it.

Article 35: Existing treaties remain in force for the remaining territory of the predecessor state after separation.

SUCCESSION TO MEMBERSHIP OF INTERNATIONAL ORGANISATIONS

Membership succession depends on whether the new state is treated as a continuation of the old state or as a
genuinely new state.

India/Pakistan (1947): India was a continuation of British India — retained UN membership. Pakistan was a new
state — had to apply separately.

Russia/USSR: Russia treated as the continuing state — retained the USSR's permanent UN Security Council
seat without reapplying.

SUCCESSION TO STATE PROPERTY

General rule: State property passes to the successor state (customary international law).

Newly Independent States — Article 15:

• Immovable property within the territory passes to the successor state.
• Movable property connected to the territory passes to the successor state.
• State property situated outside the territory also passes to the successor state.

Merger:
• State property of all predecessor states passes to the new successor state.

SUCCESSION TO STATE DEBTS

Definition (Article 33, 1983 Vienna Convention): Financial obligations of a predecessor state arising under
international law towards another state, an international organisation, or any other subject of international law.

Scenario 1 — Partial transfer of territory

Debt passes to successor state in an equitable proportion, taking into account the property and interests that
also pass. No automatic full succession.

Scenario 2 — Newly independent states — Article 38

No state debt of the predecessor (colonial) state passes to the newly independent state — unless an
agreement provides otherwise. New states are not saddled with colonial debts.

Scenario 3 — Merger — Article 39

 Where states unite, the debts of all predecessor states pass to the successor state. The successor inherits
everything, including liabilities.

Scenario 4 — Secession
Debt passes to the successor state in an equitable proportion, taking into account property and interests that
also transfer.

State practice note: Going back to US independence, practice shows newly independent states generally do not
inherit the predecessor's general debts, except where the debt relates specifically to the territory in question.

PRIVATE RIGHTS

Principle 1 — Inhabitants become subject to new state's laws:

Inhabitants who become nationals of the successor state are fully subject to its laws and regulations.

Principle 2 — Vested rights continue:

Private rights that are already vested (acquired) survive succession and can be enforced against the new
sovereign.

Important limitation: Rights that are to come into operation in the future are NOT binding on the new sovereign.
Only already-operative rights are protected.

Supporting cases:
• German Settlers Case (PCIJ 1923) — Vested private rights of German settlers in Polish territory survived
transfer of sovereignty.
• Certain German Interests in Polish Upper Silesia (PCIJ 1926) — Further confirmed protection of private
rights upon succession.
• Chorzow Factory Case — State responsibility for interference with vested private rights.
• Mavrommatis Palestine Concessions (PCIJ 1924) — Concessions granted under the predecessor
regime continued to bind the successor.
• West Rand Central Gold Mining Co (1905) 2KB 391 — Contrast — not all claims against a predecessor
state are automatically inherited by the successor.

NATIONALITY UPON SUCCESSION

General rule: Nationality changes with sovereignty — inhabitants of the transferred territory generally acquire
the nationality of the successor state.

• Predecessor state's laws determine the extent to which inhabitants retain the old nationality.
• Successor state's laws determine conditions under which new nationality is granted.
The new sovereign must declare rules regarding people born in the territory, residents, and those born abroad of
parents who were nationals of the former regime.

SUCCESSION OF GOVERNMENTS — INTERNAL CHANGE

When the government changes (through election, coup, or revolution), the state itself continues. Each new
government inherits the obligations of its predecessor because obligations attach to the state, not to the
government.

Illegal/Unconstitutional Regimes:
• Usually treated as de facto governments.
 • The legitimate de jure government could claim not to be bound by engagements with the illegal regime.

Insurgent/Rebel Governments — subsequently suppressed:

• Parent government not bound by debts the insurgent government incurred.
• Exception: If the debt was incurred for the benefit of the state as a whole, the parent government may
be bound by it.

MASTER SUMMARY TABLE

Issue Rule Key Authority

Treaties — clean slate New states not automatically bound Vienna Convention 1978

Boundary treaties Always survive succession Article 11; Libya/Chad Case

Multilateral treaties Option to join by notification Article 17

Bilateral treaties Require express/implied agreement Vienna Convention 1978

Merger — treaties Continue in force unless incompatible Article 31

Separation — treaties Continue for each successor state Article 34

State property Passes to successor state Customary law; Article 15

State debts — new states No succession unless agreed Article 38

State debts — merger Pass to successor state Article 39

State debts — partial Equitable proportion Article 33

transfer

Private/vested rights Continue against new sovereign German Settlers; Mavrommatis

Nationality Generally changes with sovereignty Municipal law of both states

Government succession Continuity — state remains bound General principle

Insurgent debts Not binding unless benefited the state General principle

KEY CASES SUMMARY

Case Key Point

Molefi v Legal Adviser (1970) Distinguishes state succession from government succession

Libya/Chad Case (ICJ 1994) Boundary treaty survives state succession

German Settlers Case (PCIJ 1923) Vested private rights survive succession

Chorzow Factory Case State responsibility for interference with vested rights

Mavrommatis Palestine Concessions (PCIJ Concessions granted under predecessor bind successor
1924)

West Rand Gold Mining Co (1905) Not all predecessor claims automatically transfer

LIKELY EXAM QUESTIONS

Q1: What is the clean slate theory? When does it apply and what are its exceptions?
Explain the theory, apply it to newly independent states, address multilateral vs bilateral treaties, and discuss
the boundary treaty exception with Libya/Chad.

Q2: Distinguish state succession from succession of governments.

Define both, explain the difference between external and internal change of sovereignty, apply the continuity
principle to government succession, and address insurgent regimes.

Q3: What happens to state property and state debts upon succession?
Cover all four debt scenarios, the equitable proportion rule, and the special protection for newly independent
states under Article 38.

Q4: To what extent are private rights protected upon state succession?
Explain vested rights principle, apply German Settlers and Mavrommatis, and address the limitation on future
rights.

Q5: Discuss the rules applicable to treaty succession upon the merger and separation of states.
Apply Articles 31 and 34–35, address the territorial limitation rule, and discuss the boundary treaty exception.

National University of Lesotho — Faculty of Law — L4304 International Humanitarian Law II