Notes

Module 06
Introduction
1) The Montevideo Convention on the Rights and Duties of States is a treaty that
was signed in Montevideo, Uruguay, on December 26, 1933.
2) It is one of the key instruments in international law that provides a definition of
what constitutes a state.
3) The convention was a response to the need for a clear and concise framework
for the recognition of states in the aftermath of World War I and during a period
of significant geopolitical changes.

4) Article 1 of the Montevideo Convention lays out the criteria for statehood.
According to the convention, a state should possess the following
qualifications:
a) a permanent population
b) a defined territory
c) a government
d) capacity to enter into relations with other states
5) Article 3 emphasizes the equality of states, stating that "The political existence
of the state is independent of recognition by other states." This means that a
state exists as a legal entity regardless of whether it is recognized by other
states.
6) Article 8 highlights that no state has the right to intervene in the internal or
external affairs of another state.
7) Article 11 underscores the inviolability of a state's territory, stating that "No
state has the right to intervene in the internal or external affairs of another."
8) A territory is a physical area and geographical boundary over which a state
exercises control and sovereignty.
9) The ‘territory’ is subject to exclusive jurisdiction of the state and is protected by
international law from violation by other states.
Meaning of State territory

1. State territory refers to the defined portion of the globe which is subjected to the
sovereignty of a State.
2. A State’s supreme authority within its territory is recognized under international
law.
3. States are the most important players on the international stage as they are:
1. Subjects of international law
2. Principal law makers
3. Law enforcers
4. As such, it is vital to identify those legal personalities who have the capacity to
be States.

Different Parts of State Territory

The territory of a State consists of three main components:
1. Land Territory:

 This comprises the physical land within the recognized boundaries of a

state, including the subsoil beneath it. Additionally, it often includes
national or internal waters, such as lakes, rivers, and ports. The extent of
land territory is a fundamental aspect of defining a state's jurisdiction.

2. Maritime Territory:

 This includes the territorial sea of a state. The territorial sea extends a
certain number of nautical miles from the baseline of a coastal state and
is considered part of its sovereign territory. It is essential for the state's
control over maritime activities and resources.

3. Territorial Airspace:

 Territorial airspace covers the airspace above the land, national waters,
and territorial sea of a state. States have the authority to regulate and
control the airspace within their territory. This control is crucial for issues
like air traffic management and national security.
Types of Acquiring and Loss of State Territory

1. Occupation:

 Occupation involves the deliberate acquiring of terra nullius.

 Terra nullius refers to land that is considered to belong to no state,
often because it is uninhabited or unclaimed.
 It often occurs through force or military means, and if the
international community recognizes this control, the occupying state
may acquire sovereignty over the territory.
 The critical aspect of the process is the recognition by the
international community.
 Thus if other states, through diplomatic channels or international
agreements, acknowledge and accept the occupying state's control
over the territory, it may lead to the acquisition of sovereignty.

Example: The annexation of Crimea by Russia in 2014, where Russian

forces took control of the region following political unrest in Ukraine,
exemplifies occupation.

2. Prescription:

 Prescription refers to the acquisition of territory through prolonged and

continuous occupation, recognized by other states.
 Over time, the occupying state gains legal title to the territory based on the
principle of prescription.
 Example: Over centuries, the establishment and consolidation of territorial
control by a state, recognized by other nations, can lead to prescription.
Historical examples include gradual territorial expansion by some empires.
3. Accretion:

 Accretion is a phenomenon that occurs through natural geographical

mechanisms.

 It involves the gradual increase in a state's territory due to processes like the
deposition of sediment along coastlines or alterations in the courses of
rivers.
  Accretion is characterized by its gradual and incremental nature. Unlike
sudden events, such as political annexation or conquest, accretion involves
the slow accumulation of land over an extended period.

 Example: Over time, sedimentation at the mouth of a river can lead to the
extension of land, and the state adjacent to this area may see an increase in
its territory.

4. Cession:

 Cession is the transmission of territory from one state to another through a

treaty or agreement.

 It involves two territories: acquiring and losing territory, depending on the

terms negotiated.

 Cession involves the renunciation by one state, favoring the rights and title
to the territory in question.

 Example: The Louisiana Purchase in 1803, where the United States

acquired a vast territory from France through a cession agreement, is an
illustration of cession.

5. Dismemberment:

 Loss of Territory:

 Dismemberment refers to the fragmentation or breaking apart of a state,

leading to the loss of certain territories.

 This can occur due to internal or external factors.

 Example: The breakup of the Soviet Union in 1991 resulted in the

dismemberment of several states, with new independent nations emerging
from the former Soviet republics.

6. Retrocession:

 Loss and Regaining of Territory:

  Retrocession involves the return of territory to its original owner or a
previously controlling state.

 It often follows a period of colonial rule or occupation, and the return of

sovereignty is typically negotiated.

 Example: The retrocession of Hong Kong to China by Britain in 1997

marked the return of the territory to Chinese sovereignty.

The Case of Hong Kong

1. Hong Kong was under British colonial rule from 1842 following the conclusion
of the First Opium War and the signing of the Treaty of Nanking. The territory
included the New Territories, Kowloon, and Hong Kong Island.
2. As the lease on the New Territories was set to expire in 1997, negotiations
between the United Kingdom and China led to the Sino-British Joint
Declaration. This bilateral agreement outlined the terms for the return of Hong
Kong to Chinese sovereignty.
3. The United Kingdom agreed to return the entire territory of Hong Kong,
encompassing the New Territories, Kowloon, and Hong Kong Island, to China.
This comprehensive transfer was a crucial aspect of the retrocession.
4. The retrocession was carried out under the principle of "one country, two
systems." This arrangement allowed Hong Kong to maintain its distinct
economic and legal systems from those of mainland China for 50 years after the
handover, ensuring a level of autonomy.
5. Under "one country, two systems," Hong Kong retained a significant degree of
autonomy and self-governance. The region continued to have its own legal and
economic frameworks, fostering a unique identity within the broader Chinese
political landscape.
6. The formal transfer of Hong Kong from British to Chinese sovereignty took
place on July 1, 1997. This date marked the end of British colonial
administration in Hong Kong and the beginning of a new chapter under Chinese
rule.
7. Hong Kong's retrocession had implications for international relations, as it
represented a significant diplomatic and legal transition. The peaceful transfer
 was a notable example of a territory returning to its original owner under
retrocession.

State Succession

1. State succession refers to the merging of two or more States.

2. It is the process y which one state takes over the rights and obligations of
another state in the international arena.
3. State succession occurs when there is change in the sovereignty over a
particular territory.
4. When succession takes place the new state that absorbs the territory assumes
the rights and responsibilities of the former state concerning international
agreements, diplomatic relations, debts, and membership in the international
organizations.
5. Art 2(1)(b) of the Vienna Convention on the succession of States in
respect of treaties in 1978 defines the term State succession as ‘the
replacement of one State by another in the responsibility for the international
relations of territory’.
6. In essence, it deals with the succession of one state with another and the
transfer of rights and obligations.

State succession can arise in a number of defined circumstances, which mirror the
ways in which political sovereignty may be acquired. They are:

 Decolonization of all or part of an existing territorial unit: This refers to

situations where the nation partially or completely overcomes itself from the
holding of a superior nation.

 The dismemberment of an existing State: This refers to a situation when

the territory of the predecessor State becomes the territory of two or more
new States who take over it.

 Secession: This refers to a situation where a part of the State decides to

withdraw from the existing State.
  Annexation: This refers to a situation where a State takes possession of
another State.

 Merger: This refers to the fusion of two or more free States into a single
free State.

In each of these cases, a once-recognized entity disappears in whole or in part to be

succeeded by some other authority. There are two types of State succession and
they are discussed below:

1. Universal

2. Partial

1. Universal Succession:

Universal Succession, also known as Total Succession, occurs when the entire
identity of the parent State is extinguished, and the successor State inherits the
complete identity, including the rights, obligations, and territory of the
predecessor. This can happen through various means:

 Merger: When two or more states willingly combine to form a new state.

 Annexation: One state forcibly acquires the territory of another.

 Subjugation: The conqueror state subdues the conquered state, leading to

the destruction of the latter's identity.

An example of Universal Succession is the dissolution of Czechoslovakia. After

the separation, the new states of the Czech Republic and Slovakia emerged, both
being considered successor states.

2. Partial Succession:

Partial Succession, on the other hand, involves the separation of a part of the
territory of the parent state, which becomes an independent state. This usually
happens under circumstances such as civil wars or liberalization wars. Two
prominent examples are:

 Separation of Pakistan from India: Following the partition in 1947,

Pakistan emerged as a separate state from India.
  Separation of Bangladesh from Pakistan: In 1971, Bangladesh achieved
independence from Pakistan after a liberation war.

In cases of partial succession, the existing states (parent and newly formed) have
distinct legal obligations and duties. The new states gain recognition and assume
their own set of rights and responsibilities, independent of the parent state.

Difference between Government and State Succession

It is different from government succession in the sense that in government

succession there’s a change of government whereas in State succession the
State loses control over its partial or whole territory.

Aspect State Succession Government Succession

Refers to the change in
Involves the transfer of the ruling authority within
the entire identity of a the existing state
state, including its rights, structure, without
obligations, and territory, affecting the state's
Definition to a new entity. identity or territory.
Involves a more Relates to a change in the
fundamental change in the leadership or regime
Nature geopolitical landscape. within the existing state.
- Dissolution of the Soviet
Union, leading to the - Change in government
emergence of independent through elections or other
Examples successor states. political processes.
- The separation of - The transition of power
Czechoslovakia into the from one political party to
Czech Republic and another within the same
Slovakia. state.
- A coup d'état leading to
- The division of a change in leadership
Yugoslavia into multiple while the state remains
independent states. intact.
Legal Implications Significant legal Primarily involves
 considerations, including domestic legal
the continuity of treaties, implications and may
diplomatic relations, and result in changes in
allocation of assets and policies and governance
liabilities. structures.
Often governed by Generally less regulated
international legal by international law, as it
principles and pertains to internal
International Law conventions. political dynamics.

States Succession to Treaties – Membership of International Organizations Recent

Developments, State succession to Public Property, Torts, Debts, and Archives

 State Succession to Treaties:

1. When a state undergoes succession, it may choose to succeed to the treaties
signed by the predecessor state.
2. Recent developments in this area involve states clarifying their positions on
specific treaties during succession, often through formal declarations.
3. Such declarations help in ensuring continuity and clarifying the state's stance
on international agreements.
4. The Vienna Convention on Succession of States in Respect of Treaties
(1978) addresses issues related to treaties between states.
5. Boundary Treaties: There is a codified customary principle that binds
successor states to treaties related to boundaries. These treaties are generally
considered binding and unalterable.
6. Human Rights Treaties: Regarding treaties related to human rights, there's a
general understanding that successor states are not automatically bound.
They often have the discretion to decide whether to continue with such
treaties.

1. Membership of International Organizations

1. Newly formed states typically need to reapply for membership in
international organizations.
2. State succession can affect a country's membership in international
organizations.
 3. These processes involve diplomatic negotiations and often follow the
guidelines and criteria set forth by the respective organizations.
4. After the separation of India and Pakistan, the UN mandated that Pakistan
had to reapply for membership.
5. UN Security Council Membership: The division of the USSR and the
creation of new states, including Russia, led to complexities in determining
UN Security Council membership. The issue was resolved through the
"Almaty Declaration," granting Russia membership.

2. State Succession to Debts:

1. One of the crucial aspects of state succession is dealing with financial
obligations and debts of the predecessor state.
2. Issues regarding repayment of debts and loans are typically resolved through
bilateral agreements between the predecessor and successor states.
3. Despite the absence of codified rules, bilateral agreements help establish the
terms for repaying loans to donor agencies or other entities.

3. Succession to Public Property:

1. During state succession, issues related to public property, including
infrastructure, government buildings, and resources, need to be addressed.
2. Successor states enjoying public properties have a binding obligation to repay
or address the status of these properties.
3. If successor states are utilizing public assets, they are generally bound to repay
the parent state.
4. Recent developments often involve negotiated agreements between the
predecessor and successor states, outlining the division or transfer of public
assets.
5. International arbitration or mediation may be used in case of disputes.

4. State Succession to Torts:

1. State succession to tort liability involves addressing claims against the
predecessor state for wrongs committed.
2. It is the responsibility of the successor state concerning pending and future
tort claims, balancing the rights of claimants with the need for legal stability.
5. State Succession to Archives:
1. Archives, including historical documents and records, pose a unique
challenge during state succession.
2. Agreements and guidelines, often provided by international
organizations like UNESCO, aim to ensure the preservation and
transfer of important documents to the successor state, preserving
cultural heritage.

The rights and duties arising out of state succession:

Political Rights and Duties:

1. Succession in Political Rights and Duties:

 No automatic succession occurs with regard to political rights and

duties of states.

 Peace treaties or treaties of neutrality entered into by the previous

state are not binding on the new state.

2. Exception - Human Rights Treaties:

 An exception exists for human rights treaties, where it is often

desirable for the new state to adhere to such terms.

 New states may voluntarily choose to adopt human rights treaties

signed by their predecessor.

3. New Political Treaties:

 The new state is generally required to enter into new political treaties
based on its own priorities and diplomatic relations.

 Autonomy in forming political alliances and treaties allows the new

state to shape its international relations independently.

Rights of Natives or Local Rights:

 1. Non-Succession in Local Rights:

 Local rights of the people, such as property rights, land rights, and
rights related to infrastructure (railways, roads, water, etc.), do not
automatically secede with the succession of states.

2. Binding by Duties and Obligations:

 Successor states are bound by the duties, obligations, and rights of the
extinct state concerning local rights.

 This ensures continuity and legal stability in local matters for the
affected population.

Fiscal Debts (State or Public Debts):

1. Financial Obligations:

 Fiscal debts refer to the financial obligations or debts of the

predecessor state.

 The successor state is obligated to pay back the debts of the

predecessor state.

2. Moral Obligation:

 If the new state is enjoying the benefits of the loans, there is a moral
obligation to repay the money.

 This underscores principles of fairness and ethical responsibility.

3. Division in Case of State Split:

 In the event of a split in the state, the entire debt amount is divided
between the predecessor and successor states.

 The division is typically based on factors such as territory and

population, ensuring a proportional distribution of financial
responsibility.
Theories

Theory of Universal Succession

1. This is the oldest theory of succession propounded by Grotius, using the

Roman analogy of succession on the death of any natural person.
2. According to this theory, the rights and duties of the old State i.e., the
predecessor State pass on to the new State i.e., the successor State upon
succession without any exceptions and modifications.
3. The successor state automatically inherits the rights and obligations of the
predecessor state concerning treaties.
4. It is based on the idea that the state is a continuous entity, and the new state
is considered a continuation of the old state.
5. In fact, there are two justifications behind this theory.
i) First that the State and the Sovereign gain all their power from God and a
mere change in Government shouldn’t cause any change in the powers.
ii) Second, it is permanent and nothing can cause it to secede.
6. The application of this theory can be seen in cases of fusion in the 20th
century. The fusion of Syria and Egypt, Somali Land and Somalia,
Tanganyika and Zanzibar are examples of this.
7. However, this theory failed to get any attention from the majority of States
from the world and has also been criticized by scholars from the world due
to its Roman law analogy, a poor distinction between succession and internal
change in governments, etc.

Theory of Negativism

1. This theory takes a contrary approach, asserting that the successor state is not
automatically bound by the treaties of the predecessor state.
2. This theory was developed during the mid-19th and early 20th centuries. After
World War II, the jurists of the Soviet Nations started emphasizing on the right
of self-determination and on giving complete freedom to the States to maintain
their international relations.
3. According to this theory, the Successor State doesn’t absorb the personality of
the Predecessor State in its political and economic interests.
4. Upon succession, the new State is completely free of the obligations of the
Predecessor State.
5. The Successor State does not exercise its jurisdiction over the territory in virtue
of a transfer of power from its predecessor but it has acquired the possibility of
expanding its own sovereignty.
6. It emphasizes the principle of the sovereign right of states to determine their
treaty commitments independently.

Contemporary Theories

1. Neo-Universalism :
i) Neo-Universalism is a contemporary theory of state succession to treaties
that combines elements of both automatic succession and flexibility.
ii) It recognizes the principle of automatic succession, similar to the
traditional Theory of Universal Succession.
iii) And also allows for exceptions based on the intent of the parties or
changes in circumstances.
iv) It balances the continuity provided by automatic succession with the need
for adaptability in modern diplomatic relations.
v) It acknowledges that, while some treaties may automatically succeed,
others might require a more flexible approach.
2. Neo-Negativism
i) Neo-Negativism is another contemporary theory of state succession to
treaties that combines aspects of non-automatic succession and
recognition of successor states inheriting certain treaties.
ii) It acknowledges the sovereign right of states to determine their treaty
commitments independently.
iii) It recognizes that successor states may voluntarily choose to inherit
certain treaties.
iv) It offers a middle ground between automatic succession and complete
non-succession.

Both Neo-Universalism and Neo-Negativism represent attempts to refine

and modernize the traditional theories of state succession to treaties. They
 aim to address the complexities of contemporary international relations by
providing a more nuanced approach that considers the evolving needs and
circumstances of the global community.

Theory of Gestation (Nyerere Doctrine)

1. Proposed by Julius Nyerere, the Nyerere Doctrine proposes a transitional period

during which the successor state is bound by the treaties of the predecessor
state.
2. This period allows for adjustment, negotiation, and a gradual assumption of
international obligations by the successor state.
3. The doctrine emphasizes diplomatic negotiations between the predecessor and
successor states during the transitional phase.
4. It strikes a balance between continuity in honoring existing treaty obligations
and the flexibility to adapt to the evolving needs and priorities of the successor
state.

Conclusion

1. The principles of state succession with regard to treaties can be characterized by

two dominant but contrasting principles: the alleged principle of universal
succession and the tabula rasa approach, also known as the clean State doctrine.
2. The former considers the interests of third states, while the latter strictly
emphasizes the sovereignty of the successor state.
3. These approaches recognize the complexities inherent in state succession and
aim to balance the interests of successor and predecessor states with those of
third-party states.
4. The evolving nature of international relations and the unique circumstances of
state succession demand a more flexible and comprehensive framework.
5. The current state of the law on state succession to treaties indicates the ongoing
need for refinement and development.