Succession to Rights and Duties
(p. 423) 19 Succession to Rights and Duties
1. Introduction and Overview
(A) State Succession as a Category1
State succession occurs when there is a definitive replacement of one state by another in respect of sovereignty over a given territory, that is, a replacement in conformity with international law.2 The political events concerned include dismemberment of an existing state, secession or separation of part of a state, decolonization, merger of existing states into a new state, and cession or annexation of state territory. Succession is predicated upon the permanent displacement of sovereign power, and thus temporary changes resulting from belligerent occupation, agency, or grants of exclusive possession of territory by treaty are excluded.
When the sovereignty of one state replaces that of another, a number of legal problems arise. Is the successor state bound by all or any of the treaties of the predecessor? Do the inhabitants of the territory concerned automatically become nationals of the successor? Is the successor state affected by international claims involving the predecessor, by the predecessor’s national debt and its other obligations under the legal system now supplanted? It is important to note that the phrase ‘state succession’ is employed to describe an area, a source of problems: it does not connote any overriding principle, or even a presumption, that a transmission or succession of legal rights and duties occurs in a given case. The phrase ‘state succession’ is well established, (p. 424) despite the misleading municipal law analogy of continuity of legal personality in an individual’s general property, passing as an inheritance, involving a complete or ‘universal succession’. Generally speaking the only event of ‘universal succession’ in international law is state continuity—life rather than death.
State succession is an area of uncertainty and controversy. Much of the practice is equivocal and could be explained on the basis of special agreement or of rules distinct from the concept of legal succession. Indeed, it is possible to take the view that not many settled rules have yet emerged.
Nonetheless, the ILC has sought to codify the law on state succession leading to two separate conventions; the 1978 Vienna Convention on the Succession of States in Respect of Treaties3 and the 1983 Vienna Convention on the Succession of States in Respect of Property Archives and Debts.4 Both were criticized for departing from established international law,5 they have attracted a limited number of ratifications (the 1978 Convention only entered into force in 1996 and has 22 parties; the 1983 Convention is not yet in force).6 The territorial transformations of the last two decades however, revealed a tendency to rely on them or at least some of their provisions to resolve controversial questions, for want of any better articulation of the legal principles involved.7
(B) The Pre-Emption of Issues Byagreement
When multilateral peace treaties constituted new states or reallocated territory (e.g. in 1815, 1919–23, or 1947) they would often regulate succession problems as part of the territorial rearrangement. The Treaty of St Germain provided for the responsibility of the successor states of the Austro-Hungarian monarchy for its public debts.8 Provisions of the Italian Peace Treaty of 1947 determined questions concerning the relations of Italy and its former colony of Libya.9 On other occasions the conduct of states might produce informal novation by means of unilateral declarations, legislation, or other expressions of position.10 In 1958 when the United Arab Republic was created by the unionReferences(p. 425) of Egypt with Syria, the Minister of Foreign Affairs of the Union said in a Note to the Secretary-General: ‘…all international treaties and agreements concluded by Egypt or Syria with other countries will remain valid within the regional limits prescribed on their conclusion and in accordance with the principles of international law’.11 Such a declaration of itself could not bind third states parties to treaties with Egypt and Syria. However, third states acquiesced in the position adopted by the United Arab Republic and the US expressly took note of the assurance given.12 New states may become parties to treaties by notification of succession the validity of which is accepted by other states, by international organizations and, if necessary, by the Court.13
The devolution of treaty rights and obligations has often been the subject of agreements between the predecessor and successor states.14 Such agreements promote certainty and stability of relations.15 They also create certain problems. First, the agreement may appear to be a part of the bargain exacted by the outgoing colonial power at independence and the new state may seek legal means of disputing its validity and application. Secondly, third states cannot be bound by inheritance agreements unless by express declaration or conduct they agree to be bound.16
2. The forms of Territorial Change
There is clearly some relation between the form of territorial change and the transmissibility of rights and duties. Thus the ‘moving treaty boundaries’ principle holds that a transfer of territory from state A to state B is presumed not to affect existing treaties: state B’s treaties cover the transferred territory whereas state A’s cease to apply. However, there seems to be little value in establishing, as major categories, concepts of cession, dismemberment, merger, decolonization, and the like.17 It may beReferences(p. 426) that decolonization attracts special principles but there is no general significance in the distinction between decolonization, dismemberment, secession, and annexation. Too ready a reliance on such distinctions is deceptive. Particular factual situations are presented as though they are legal categories. Distinctions are made in the legal rules adduced which may seem anomalous or invidious. Thus O’Connell employs the category of ‘annexation’ and accepts the view that annexation terminates ‘personal’ treaties.18 But he adopts a different approach to survival of treaties in the case of ‘grants of independence’ without explaining why there should be such a different outcome.
The events producing a change of sovereignty may nevertheless have legal relevance in particular circumstances. Thus if the successor repudiates or acknowledges continuity with the predecessor this may produce the effect of preclusion in respect of consequential legal matters. There may well be a presumption against continuity in cases where the political and legal machinery of change has involved relinquishment of sovereignty followed by reallocation in the form of a multilateral territorial settlement, as in the case of the peace treaties in Europe in 1919–20.19 Similarly, there will be a presumption against continuity in the case of a forcible secession or its equivalent, as with the creation of Israel.20 The reference to either acknowledged or repudiated continuity with a predecessor state raises problems for third states, which are not bound to accept the determination of the putative successor.21 The recognition of continuity by third states must be an important element since continuity is very much a matter of election and appreciation.22 This is also true where complex political change produces a double succession within a short space of time, as with India and Pakistan, Senegal and Mali. Normally, these matters will be regulated by treaty: thus Turkey as a new political entity was treated as continuous with the Ottoman Empire by the Treaty of Lausanne.23
(A) The Distinction between Continuity and Succession
In short, there is a ‘fundamental distinction’ between state continuity and state succession; ‘continuity’ denoting cases where the same state continues to exist, successionReferences(p. 427) referring to the replacement of one state by another with respect to a particular terri-tory.24 The question of continuity precedes that of succession: state continuity presupposes stability in legal relations. In other words, where the ‘same’ state continues to exist, the question of succession to rights and obligations does not arise for that state.25
Nonetheless, distinguishing cases of identity from succession can present difficulties, particularly where drastic changes have occurred to a state’s territory, government, or population.26 This question can be particularly problematic as concerns membership of international organizations.27 Because there are no well-defined criteria for state extinction, subjective factors may be pertinent, including the state’s own claim to continuity, as well as recognition by other states.28 Despite the precarious character of determinations of identity and continuity, a number of criteria have been advanced to resolve questions of state continuity. Marek relies on the criterion of formal ‘independence’ (or the preservation of the concerned state’s legal order) as the touchstone.29 Another possibility is to refer to the basic criteria for statehood (such as continuity of territory and population), applied in the context of claim, recognition, and acquiescence by third states.30
(B) Dismemberment of Federal States31
Much has been written about the dissolution, or partial dissolution, of the USSR and the SFRY. In the case of the Russian Federation, the principal surviving component of the USSR, the international community accepted the Russian assertion made in communications to the UN and a circular note to all states with diplomatic missions in Moscow that Russia was the continuator of the former Soviet Union. Russia was also accepted by the members of the Security Council as the continuator of the USSR. Russia assumed all treaty obligations and consolidated the debts and property abroad of the USSR (although Soviet property and indebtedness might have been apportioned among all the former republics).
(p. 428) In the wake of the disintegration of Yugoslavia, Serbia and Montenegro, then denominated the Federal Republic of Yugoslavia, declared that it was the sole successor of the former Yugoslavia. This position was unacceptable to the European Community and its member states.32 Apparently as a consequence of this difference, Yugoslavia was prevented from exercising many of its rights as a member of the UN, but without affecting for the time being its status as a party to the Statute of the International Court of Justice. Yet after 2001 a completely different view was taken of the situation; the Court for its part oscillated.33 It is difficult to give legal articulation to these episodes.
(C) The Doctrine of Reversion34
It is possible that continuity by virtue of general recognition by third states can arise in the form of reversion. The successor state may be regarded as recovering a political and legal identity displaced by an intervening period of dismemberment or colonization.35 Such cases will be rare and the consequences of a doctrine of reversion may create a threat to the security of legal relations: thus the successor may not consider itself bound by territorial grants or recognition of territorial or even demographic changes imposed by the predecessor.36 The suggestion has been made that, quite apart from recognition by third states, in a case of post-colonial reversion, the principle of self-determination may create a presumption in favour of the successor state.37 This raises large issues of the relation between peremptory norms (including self-determination) and the law relating to state succession.
3. State Successsion and Municipal Legal Relations
Considering that nothing in paragraph 4 below in any way prejudices the position of any Member State on any aspect of the question of the rights and obligations of successor States and Governments in respect of property acquired before the accession to sovereignty of countries formerly under colonial rule.…
This is a reservation of competence; it does not give the new sovereign carte blanche.
(A) State Property44
It is generally accepted that succession to the public property of the predecessor state located on the territory in question is a principle of customary international law and the jurisprudence of the Permanent Court of International Justice supports this posi-tion.45 Another approach would be to say that the ‘principle’ is really a presumption that acquisition of state property is inherent in the grant of territorial sovereignty and is a normal consequence of the acquisition of sovereignty in situations apart from a grant or cession. The position is in general confirmed by the Vienna Convention on Succession of States in respect of State Property, Archives and Debts of 1983,46 although the Convention propounds a rather different legal regime for the case where the successor is a ‘newly independent state’.
In practice, the partition of state property among successor states may raise difficulties, which are usually resolved by negotiations and bilateral agreements based on the principle of ‘equity’. Differences of opinion regarding the form of change in sovereignty for the purposes of regulating succession to property (particularly the distinction between dissolution and secession) may lead to conflict,47 and in some cases, the very definition of ‘state property’ may be disputed: the competing claims of the SFRY’s successors relating to ‘social property’ is a case in point.48
References(p. 431) In the aftermath of the USSR’s break-up, special solutions were required to address the partition of nuclear forces and other military property, deviating significantly from both the principles of territoriality and equitable apportionment. Despite initial protest, it was eventually agreed that Russia would maintain control of all nuclear weapons, while other members of the Commonwealth of Independent States in whose territories nuclear weapons had been located (Belarus, Kazakhstan, and Ukraine) would commit to total nuclear disarmament. Agreement was reached through negotiations and guarantees of compensation.49 The Black Sea fleet, located in the Crimean peninsula (which had been transferred to Ukraine in 1954) was partitioned between Russia (81.7%) and Ukraine (18.3%), with Russia maintaining the right to use the Ukrainian port of Sevastopol for 20 years.50
(B) Public Law Claims and Public debts51
It follows from what has already been said that the successor state has a right to take up fiscal claims belonging to the former state which relate to the territory in question, including the right to collect taxes due. Much more a matter of controversy is the fate of the public debts of the replaced state. It may be that there is no rule of succession established,52 but some writers have concluded that in cases of annexation or dismemberment (as opposed to cession, i.e. where the ceding state remains in existence), the successor is obliged to assume the public debts of the extinct state.53 Zemanek confines succession to the situation where before independence an autonomous political dependency has, through the agency of the metropolitan power, contracted a ‘localized debt’ which is automatically attributed to the new state aft er separation.54 In practice, however, municipal courts will enforce obligations of the predecessor state against the successor only when the latter has recognized them,55 although recognition could takeReferences(p. 432) the form of unqualified continuation of the legal system under which the debts arise. The 1983 Vienna Convention provides for the passing of the state debt to the successor state (as a general principle) with a reduction according to an equitable proportion in the cases of transfer of part of a state, secession, or dissolution of a state (Articles 36 to 37, 39 to 41). However, when the successor state is a ‘newly independent State’, no state debt shall pass, except by agreement (and then only if certain other conditions are satisfied) (Article 38). According to Article 2(1)(e) a ‘newly independent State’ means a successor state the territory of which had been ‘a dependent territory for the international relations of which the predecessor State was responsible’. This distinction between ‘newly independent states’ and other successor states is problematic, especially when it has such categorical effects.
(C) State Contracts and Concessions
As in the case of all rights acquired under the municipal law of the predecessor state, rights deriving from state contracts and concessions are susceptible to change by the new sovereign. Limitations on such interference derive from relevant international standards concerning treatment of aliens or human rights in general.56However, a number of writers57 state the principle that the acquired rights of a concessionaire must be respected by a successor state.58 There is a certain anomaly in the selection of concessions as beneficiaries of the principle, which could be related to other matters, including contracts of employment and pension rights. It will be appreciated that judicial pronouncements to the effect that the mere change of sovereignty does not cancel concession rights59 do not give support to the acquired rights doctrine in the form that after the change of sovereignty the new sovereign must maintain the property rights of aliens acquired before the change of sovereignty.
Greece, having adopted the illegal conduct of Crete in its recent past as autonomous state, is bound, as successor state, to take upon its charge the financial consequences of the breach of the concession contract. Otherwise, the avowed violation of a contract committed by oneReferences(p. 433) of the two States…with the assent of the other, would, in the event of their merger, have the thoroughly unjust consequence of cancelling a definite financial responsibility and of sacrificing the undoubted rights of a private firm holding a concession to a so-called principle of non-transmission of debts in cases of territorial succession, which in reality does not exist as a general and absolute principle. In this case the Greek Government with good reason commenced by recognising its own responsibility.61
The short point remains that territorial change of itself neither cancels nor confers a special status on private rights: they gain no regulatory or other immunity post-succession but they continue subject to the international minimum standard of protection (as to which see chapter 29). Where the private rights involve a substantial foreign control of the economy, some modern exponents of the principle of vested or acquired rights are moved to formulate qualifications concerning ‘odious concessions’ or ‘concessions contrary to the public policy of the successor state’,62 for example a major concession granted on the eve of independence and involving vital resources. Qualified to this degree, the principle would seem to lose its viability.
The problem involved is that of the nationality of inhabitants of the transferred territory. In resolving that problem little or no help is to be derived from the categories of the law of state succession.64
(i) Nationality as a consequence of territorial transfer
Poland admits and declares to be Polish nationals ipso facto and without the requirements of any formality persons of German, Austrian, Hungarian or Russian nationality who were born in the said territory of parents habitually resident there, even if at the date of the coming into force of the present Treaty they are not themselves habitually resident there.
References(p. 434) Nevertheless, within two years after coming into force of the present Treaty, these persons may make a declaration before the competent Polish authorities in the country in which they are resident stating that they abandon Polish nationality, and they will then cease to be considered as Polish nationals. In this connexion a declaration by a husband will cover his wife and a declaration by parents will cover their children under 18 years of age.66
The Treaties of St Germain,67 Trianon,68 and Paris69 had similar provisions, except that the Treaties of St Germain and Trianon refer to persons born of parents ‘habitually resident or possessing rights of citizenship [pertinenza–heimatrecht] as the case may be there’. The precedent value of such provisions is considerable in view of their uniformity and the international character of the deliberations preceding the signature of these treaties. The objection that they give a right of option does not go far, since the option is a later and additional procedure. Only when the option is exercised does the nationality of the successor state terminate: there is no statelessness. The Italian Peace Treaty of 1947 provided that Italian citizens domiciled in territory transferred would become citizens of the transferee; and a right of option was given.70
State practice evidenced by the provisions of internal law is to the same effect. The law of the UK has been expressed as follows by McNair:
The normal effect of the annexation of territory by the British Crown, whatever may be the source or cause of the annexation, for instance, a treaty of cession, or subjugation by war, is that the nationals of the State whose territory is annexed, if resident thereon, become British subjects; in practice, however, it is becoming increasingly common to give such nationals an option, either by the treaty of cession or by an Act of Parliament, to leave the territory and retain their nationality.71
In view of the state practice it is hardly surprising to find works of authority stating that persons attached to territory change their nationality when sovereignty changes hands.72 Somewhat surprising is the caution of Weis. In his view:
there is no rule of international law under which the nationals of the predecessor State acquire the nationality of the successor State. International law cannot have such a direct effect, and the practice of States does not bear out the contention that this is inevitably the result of the change of sovereignty. As a rule, however, States have conferred their nationality on the former nationals of the predecessor State, and in this regard one may say that thereReferences(p. 435) is, in the absence of statutory provisions of municipal law, a presumption of international law that municipal law has this effect.73
But if international law can create a presumption it can create a rule: whether it is complied with is not the question, but in fact practice bears out the rule. Variations of practice, and areas of doubt, certainly exist, but they are hardly inimical to the general rule. Some difficulties merely concern modalities of the general rule itself. Thus, the position of nationals of the predecessor state who at the time of the transfer are resident outside the territory the sovereignty of which changes is unsettled. The rule probably is that, unless they have or forthwith acquire a domicile in the transferred territory, they do not acquire the nationality of the successor state.74 This, it seems, is the British doctrine.75
The general principle is that of a substantial connection with the territory concerned by citizenship, residence or family relation to a qualified person. This principle may be a special aspect of the general principle of the effective link.76 However, it could be argued that for the individuals concerned, at the moment of transfer, the connection with the successor state is fortuitous. Whatever the merits of this, the link, in cases of territorial transfer, has special characteristics. Territory, both socially and legally, is not to be regarded as an empty plot: with obvious geographical exceptions, it connotes population, ethnic groupings, loyalty patterns, national aspirations, a part of humanity, or, if one is tolerant of the metaphor, an organism. To regard a population, in the normal case, as related to particular areas of territory, is not to revert to forms of feudalism but to recognize a human and political reality which underlies modern territorial settlements. Sovereignty denotes responsibility, and a change of sovereignty does not give the new sovereign the right to dispose of the population concerned atReferences(p. 436) discretion. The population goes with the territory: on the one hand, it would be unlawful, and a derogation from the grant, for the transferor to try to retain the population as its own nationals (though a right of option is another matter). On the other hand, it would be unlawful for the successor to take any steps which involved attempts to avoid responsibility for conditions on the territory, for example by treating the population as de facto stateless. The position is that the population has a ‘territorial’ or local status, and this is unaffected whether there is a universal or partial successor or whether there is a cession, that is, a ‘transfer’ of sovereignty, or a relinquishment by one state followed by a disposition by international authority.
In certain cases other considerations arise. Where one of the states concerned claims continuity, retention of the former nationality may be more common, but in the event the result may not be very different than in cases of succession.77 The question of the legality of population transfer (apart from voluntary exercise of rights of option) may also arise.78