Anthony Aust. Handbook of International Law

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20 Succession of states

Kingdoms are clay.

Shaw, International Law, 5th edn, Cambridge, 2003, pp. 861–913

Brownlie, Principles of Public International Law, 6th edn, Oxford, 2003, pp. 621–43

Oppenheim. Oppenheim’s International Law, 9th edn, London, 1992, pp. 204–44

Aust, Modern Treaty Law and Practice, Cambridge, 2000, pp. 305–51

A state may change its name, constitution or government by revolution or constitutionally, but it will

retain its international legal personality

and remain bound by its international obligations. If some

of its territory becomes a new state it has to be determined which rights and obligations of the

(predecessor) state become those of the new (successor) state. Succession to treaties, to state

property, archives and debts, and to membership of international organisations, are the main topics

discussed below. The value of state practice before the Second World War as a guide to today’s

problems of succession is questionable. The post-war era of decolonisation and the end of the Cold

War led to the total number of states increasing nearly fourfold and has given us a useful body of

modern state practice.

The law is complex, and is especially dependent on the particular circumstances of each case. The

two Vienna Conventions on succession (see below) are of some help, but must be approached with

caution. One has entered into force, but has very few parties; the other is not in force and is unlikely

ever to be so. Neither applies to a succession that occurs before their entry into force. International

courts and bodies have endorsed some of their provisions, yet there are substantial doubts as to the

extent to which they reflect customary international law. In considering any succession question, one

must therefore examine the relevant Vienna

1. W. Shakespeare, Antony and Cleopatra, 1. .12.

2. See p. 16 above.

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Convention and the leading general and specialist works and precedents, always having regard to the

particular facts of the case.

Succession can happen in many ways.

Independence of an overseas territory

Those states in existence at the end of the Second World War stayed mostly unchanged until the

Cold War ended. But, during that period, over 100 overseas territories

gained their independence,

mostly during the main era of decolonisation from 1945 to 1980. This produced a valuable body of

state practice and influenced, although not necessarily helpfully, attempts to codify the law on

succession.

Secession

This mainly concerns the metropolitan territory of a state: Singapore seceded from Malaysia (1965),

Bangladesh from Pakistan (1971), Eritrea from Ethiopia (1993) and Timor Leste (East Timor) from

Indonesia (2002). The most dramatic example was the secession of fourteen republics of the Soviet

Union.

It was done with the agreement of the predecessor state, which continued in existence under

the name of the Russian Federation.

Dissolution

At the end of the First World War the Hapsburg Empire was dismembered, producing several new

states, including Yugoslavia. After the Second World War, Yugoslavia became the Socialist Federal

Republic of Yugoslavia (SFRY). The end of the Cold War led to the break-up of the SFRY. By 1992

or 1993, the constituent republics of the SFRY (Bosnia and Herzegovina, Croatia, Macedonia,

Serbia and Montenegro, and Slovenia) had become independent states. But Serbia and Montenegro,

which had re-labelled itself the Federal Republic of Yugoslavia (FRY), wrongly claimed that it was

the continuation of the SFRY, and this delayed its recognition.

Czechoslovakia was a product of the dissolution of the Hapsburg Empire. It emerged from the

Second World War as a communist state,

3. See p. 29 above.

4. See p. 20 above about the present Russian republics.

5. See p. 393 below.

6. See p. 20 above.

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but the end of the Cold War, and the political ambitions of Slovak leaders, led to the so-called velvet

divorce. By agreement, at midnight on 31 December 1992, the state of Czechoslovakia was

dissolved and succeeded by two states, the Czech Republic and Slovakia.

At the end of the Second World War, Germany was occupied by France, the Soviet Union, the

United Kingdom and the United States, who together assumed ‘supreme authority’ over it. They did

not annex Germany, but its international personality was suspended. In due course, two German

states, the Federal Republic of Germany (FRG or West Germany) and the German Democratic

Republic (GDR or East Germany), were established.

Until the reunification of Germany (see

below), Berlin had a very special and complex status.

Merger

On 2 July 1976, the two states of the Democratic Republic of Viet Nam (North Vietnam) and the

Republic of Viet Nam (South Vietnam) joined together as one state, the Socialist Republic of Viet

Nam.

On 22 May 1990, the People’s Democratic Republic of Yemen (South Yemen) and the

Republic of Yemen (North Yemen) merged into a single state, the Republic of Yemen. In 1964,

Tanganyika and Zanzibar joined to form one state, the United Republic of Tanzania.

There has been at least one, short-lived merger of two states to form a single state. In 1958, Egypt

and Syria joined together as one state, the United Arab Republic (UAR). It was dissolved in 1961,

but Egypt retained the name UAR until 1971. In 1982, Gambia and Senegal established the

Senegambia Confederation, each state retaining its sovereignty and independence. It was therefore

not a union, but a true confederation, and was dissolved in 1989. (The Swiss Confederation is a

federal state.)

Absorption and extinction

The Germany that emerged on 3 October 1990 resulted from the Unification Treaty by which the

GDR willingly agreed to be absorbed into the FRG, the GDR Länder (states after GDR) becoming

Länder of the

7. Oppenheim, pp. 135–9 and 699–700.

8. Oppenheim, pp. 139–41; and Hendry and Wood, The Legal Status of Berlin, Cambridge, 1987.

9. Oppenheim, pp. 141–3.

10. See p. 57 above.

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FRG. The name of the reunified Germany therefore remained the Federal Republic of Germany.

Recovery of sovereignty

The most recent example is the three Baltic states of Estonia, Latvia and Lithuania. Having gained

their independence from Russia after the First World War, in 1940 they were occupied and then

unlawfully annexed by the Soviet Union. They regained their sovereignty in 1991 and joined the

European Union in 2004.

Transfer of territory

The transfer of part of the metropolitan territory of a state to another state will not usually involve

succession, the ‘moving boundary’ principle applying,

as when Alsace-Lorraine was returned to

France at the end of the First World War. Although it is a question of degree, the boundary between

the two states is simply moved so that the territory transferred becomes part of the transferee’s

territory, with no succession issues arising.

Continuity of statehood

In 1947, on the partition of India into India and Pakistan, India was regarded by the UN General

Assembly as the continuation of the previous state, and Pakistan as a new state. The dramatic

changes to the Union of Soviet Socialist Republics in 1991 led fourteen of its republics to break

away to become new states, yet the state which had exercised sovereignty over them continued

despite the large loss of territory and population, and the change of name to that of its principal

constituent part, the Russian Federation.

Succession to treaties

The Vienna Convention on the Law of Treaties does not cover succession (Article 73). One would

therefore be forgiven for thinking that the Vienna

11. Oppenheim, pp. 138–9; Shaw, pp. 868–70; see (1997) BYIL 520–9.

12. See p. 395 below.

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Convention on Succession of States in respect of Treaties 1978

(the ‘1978 Convention’) provides

the answers to all treaty succession problems, but it does not. The Convention entered into force

only in 1996 when it achieved the necessary fifteen ratifications. This was only made possible by the

adherence of the new states of Bosnia and Herzegovina, Croatia, Estonia, Slovakia, Slovenia,

Macedonia and Ukraine. Unless a successor state agrees otherwise, the Convention does not apply to

a succession that occurs before entry into force of the Convention for the states concerned.

The International Law Commission (ILC) had prepared the draft of the 1978 Convention. The ILC

had noted that state practice indicated no general doctrine which resolved the various problems of

succession to treaties, and that the number of different theories of succession did not make the task

any easier. The Convention therefore contains much that is a progressive development of

international law, and therefore much of it cannot be regarded as reflecting customary international

law, the most recent state practice relating to former overseas territories not being consistent. The

rules of the Convention concerned with such new states are also excessively complex. They give

undue prominence to the so-called clean slate principle, and insufficient weight to the abundant state

practice of concluding devolution agreements or, even more importantly, of making declarations of

succession. Moreover, the Convention rules about the break-up of metropolitan states did not reflect

modern state practice, there then being little practice to draw on. Although parts of the Convention

may have been relied upon in drafting certain bilateral succession agreements,

its influence and

practical value is considerably less than that of the Vienna Convention on the Law of Treaties 1969.

Overall, the 1978 Convention is not a reliable guide to such rules of customary law on treaty

succession as there are.

The customary law principles

The rules of customary international law on the subject are not easy to state, the circumstances

varying widely and the subject being politically charged. The interests and perception of a successor

state may differ significantly from those of the predecessor state (assuming it still exists)

13. 1946 UNTS 3 (No. 33356); ILM (1978) 1488. For the treaty, the ILC draft and commentary, and an

introduction, see A. Watts, The International Law Commission 1949–1998, Oxford, 1999, vol. , pp.

987–1208. See also A. Aust, ‘Limping Treaties: Lessons from Multilateral Treaty-Making’ (2003) NILR

243 at 252–3. Oppenheim has a summary of the Convention at pp. 237–40.

14. See, for example (1995) AJIL 761–2.

15. For more details, see Aust, pp. 307–22.

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and of third states. As far as bilateral treaties are concerned, in practice much depends on what can

be agreed, expressly or tacitly, between the successor state and third states. When it is possible for

the successor state and its predecessor to reach agreement on treaty succession this will be important

to third states, although they will not be bound by the agreement. It is therefore a particularly

uncertain and controversial area. Although recent state practice may prove to be valuable, for the

moment it is safer to say that there are only certain customary law principles; for the rest, there is

evolving state practice. Indeed, almost all problems (particularly with bilateral treaties) are resolved

on the basis of agreement between the successor state and third states. Such residual rules of

customary international law as exist play a relatively minor role.

Certain general principles can be deduced with reasonable confidence. They apply whether a

treaty is bilateral or multilateral:

A new state does not succeed automatically to a treaty if the subject matter is closely linked to

the relations of the predecessor state with the other party or parties. Examples include ‘political

treaties’ such as treaties of alliance or defence.

Without any action by it, a new state will succeed to treaties (or rather to the legal situation

created by them) relating to matters such as the status of territory, boundaries or navigation of

rivers.

Although this principle is well established, its exact extent is not.

When a state has been absorbed by another (for example, the GDR by the FRG), almost all

treaties entered into by the absorbed state will either simply lapse or their fate will need to be

discussed with the other parties. Under the ‘moving-boundary principle’, treaties of the

absorbing state will extend to the absorbed state, those of the predecessor state ceasing to

apply. But when there is a true union of states (for example, Yemen), most existing treaties

will continue to bind the successor state, at least as regards that part of its territory for which

the treaties were in force before the union.

This is also the approach of Article 31 of the 1978

Convention.

Normally, a new state will not succeed automatically to multilateral treaties. Some writers

consider that treaties which embody or reflect generally accepted rules of international law (in

particular, those concerned with human rights or international humanitarian law) bind

16. See Gabcikovo-Nagymaros case, p. 401, text to n. 40, below.

17. See Articles 11 and 12 of the 1978 Convention; Oppenheim, p. 213; Shaw, pp. 871–5. See Aust,

p. 30 on the succession by former Yugoslav republics to the Austrian State Treaty.

18. And see the entry for Yemen in UN Multilateral Treaties, ‘Historical Introduction’.