Anthony Aust. Handbook of International Law

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a successor state by virtue of the concept of the acquired rights of the inhabitants of the state.

There is little authority for this view. But, in so far as a human rights treaty represents rules of

customary international law, a successor state will be bound, but by those customary rules, not

by the treaty.

A new state does not succeed automatically to bilateral treaties, other than to territorial treaties

and suchlike (as above).

These general principles do not take one very far, but may be better understood by an examination of

some of the more recent state practice.

Former colonies and other dependent territories

Although over 100 overseas territories have attained independence since the Second World War,

their practice has not been consistent. It is therefore not possible to promulgate a set of rules of

customary law applicable to such situations. The most one can do is to summarise the main

approaches which have been taken.

There are two theoretical starting points. The first is the nineteenth-century theory of universal

succession, which persisted up to the 1960s. According to this, a new state inherited all the treaty

rights and obligations of the former colonial power in so far as they had been applicable to the

territory before independence. This approach was reflected in the devolution agreements entered into

by Iraq in 1931 and by some former Asian colonies in the 1940s and 1950s.

From 1955, all former

British colonies in West Africa, except for The Gambia, concluded devolution agreements with the

United Kingdom. These provided that, as from the date of independence, all treaty obligations and

responsibilities of the United Kingdom would be assumed by the new state in so far as they could

apply to it. Although these agreements created a presumption that a treaty which could have

application to the new state would apply to it, they naturally left many questions unanswered.

devolution agreement cannot bind a third state unless it consents, although this might be

19. See R. Mullerson, ‘The Continuity and Succession of States, by Reference to the Former USSR and

Yugoslavia’ (1993) ICLQ 473 at 490–2; M. Shaw, ‘State Succession Revisited’ (1994) Finnish Yearbook

of International Law 34; and M. Kamminga, ‘State Succession in Respect of Human Rights Treaties’

(1995) EJIL 469–84.

20. See p. 8 above; and Aust, p. 308.

21. UKTS (1931) 15 (Iraq); Indonesia, 1949 (69 UNTS 266); Vietnam, 1954 (161 BSP 649); Malaya, 1957

(279 UNTS 287 (No. 4046)).

22. T. Maluwa, ‘Succession to Treaties in Post-Independence Africa’ (1992) African Journal of

International and Comparative Law 804.

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signified by conduct. Nevertheless, devolution agreements have been useful in serving as formal and

public statement of the general attitude of the new state.

The other starting point is the so-called clean slate doctrine, under which the new state is free to

pick and choose which treaties to succeed to. This approach was followed most famously by the

United States when it gained its independence. However, even when the doctrine is applied, treaties

that concern territorial rights, like boundary treaties and those granting rights of navigation or

passage, will usually bind the new state in any case.

The doctrine has been applied in different

ways. Following the so-called Nyerere Doctrine, a number of former British territories made

unilateral declarations in which they undertook that, for a specified period, they would continue to

apply all bilateral treaties validly concluded by the United Kingdom, unless abrogated or modified

by agreement. After that period, the new state would ‘regard such of these treaties which could not

by application of the rules of customary international law be regarded as otherwise surviving, as

having terminated’.

Unilateral statements do not bind third states unless they have consented in some way, and so in

the longer term such declarations do not resolve all succession problems. Once the time limit has

been reached, the effect of the declaration is uncertain unless by then the position of the new state in

respect of all bilateral and multilateral treaties which might apply to the new state has been clarified.

This is particularly so for treaties entered into expressly for the territory by the former colonial

power, although the International Court of Justice has held that the latter bind the new state.

Another clean slate approach, adopted by Zambia in 1964, was to avoid any general commitment to

confirm or deny the continuing applicability of treaties within any specific period.

Germany

The Unification Treaty entered into by the Federal Republic of Germany (FRG) and the German

Democratic Republic (GDR)

provided that in principle most treaties entered into by the FRG

would apply to the whole

23. See p. 39 above.

24. See the Declaration by Malawi on 24 November 1964 in the ILA study, The Effect of Independence on

Treaties, London, 1965, p. 388; T. Maluwa, ‘Succession to Treaties in Post-Independence Africa’ (1992)

African Journal of International and Comparative Law 804 at 806–7; Oppenheim, p. 231, n. 21.

25. US Nationals in Morocco, ICJ Reports (1952), pp. 176, 193–4; 19 ILR 255.

26. See p. 392 above.

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of the reunified state (the moving-boundary principle), and for consultations with the other parties

regarding treaties to which only the former GDR had been a party.

Although the treaty did not

bind other parties, most accepted what had been agreed, that most of the GDR’s bilateral treaties had

lapsed. Germany became party to only a few multilateral treaties to which the GDR alone had been a

party.

Thus the arrangements did not follow Article 31(2) of the 1978 Convention since it deals

with a true merger of states to form a third state.

Russia

Although it declared itself the continuation of the Soviet Union,

Russia declared unnecessarily that

it would continue to comply with all the international obligations entered into by the Soviet

Union.

It also sought to agree with some states a list of the bilateral treaties which would continue

to apply as between them, since there were treaties entered into by the Soviet Union which in

practice concerned only a part or parts of the Soviet Union which had now become independent. The

approach taken by Russia and the other states is consistent with Article 35 of the 1978 Convention.

Former Soviet republics

The practice of Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova,

Tajikistan, Turkmenistan, Ukraine and Uzbekistan regarding treaties is instructive, although not

consistent or entirely clear.

The Baltic states

Since Estonia, Latvia and Lithuania had been independent states until 1940, when they regained

their independence in 1991 they did not regard themselves as successor states to the Soviet Union.

Instead, they

27. ILM (1991) 457, Arts. 11 and 12.

28. See the entry for Germany in UN Multilateral Treaties, ‘Historical Information’; (1992) AJIL 152–73;

D. Papenfuss, ‘The Fate of the International Treaties of the German Democratic Republic within the

Framework of German Unification’ (1998) AJIL 469.

29. Shaw, pp. 875–7.

30. See p. 393 above.

31. See the entry for the Russian Federation in UN Multilateral Treaties, ‘Historical Information’.

32. See Aust, pp. 312–14.

33. See their entries in UN Multilateral Treaties, ‘Historical Information’.

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acceded

to many multilateral treaties to which the Soviet Union had been (and to which Russia

continues to be) a party. There was, however, a problem with bilateral treaties entered into by the

Soviet Union during the period of unlawful annexation; to maintain that they had no relevance

would have been to ignore the reality of fifty years. With admirable pragmatism, agreement was

therefore reached with some neighbouring states to regard certain of those treaties as in force, at

least for the time being. Some bilateral treaties entered into in the period between the two World

Wars, when the three Baltic states were independent, were agreed to be still applicable, the rest

being obsolete or irrelevant by the 1990s. In principle, multilateral treaties entered into during that

period will therefore be in force again.

Former Yugoslav republics

The dissolution of the SFRY

was anything but amicable, but it created similar succession

questions as the break-up of Czechoslovakia (see below), although the attitude of the FRY (Serbia

and Montenegro) was a complication.

Bosnia and Herzegovina, Croatia, Macedonia and Slovenia each informed the UN Secretary-

General that they considered themselves bound by virtue of state succession to multilateral treaties

to which the SFRY had been bound. The SFRY had been a party to the 1978 Convention, and those

four new states each deposited instruments of succession to it and to other multilateral treaties. They

were apparently guided by Article 9(1) of the 1978 Convention which provides that making a

unilateral declaration of succession is not enough to make the successor a party to a treaty.

The

former republics have also entered into bilateral treaty succession arrangements with various states.

The new state of the Federal Republic of Yugoslavia (FRY) asserted, by analogy with Russia, that

it was the continuation of the SFRY. The other former republics of the SFRY, as well as most third

states, did not accept this.

The FRY’s assertion of continuation was reflected in its

34. See p. 64 above.

35. See p. 391 above.

36. See Wood, Participation of the Former Yugoslav States in the United Nations’ (1997) YB of UN Law

231; and ILM (1992) 1488.

37. But cf. Article 34.

38. (1992) BYIL 655–8. See also the report of the Badinter Commission, 92 ILR 162 at 166. The ICJ

elided the question in Genocide (Bosnia v. Yugoslavia) (Provisional Measures), ICJ Reports (1993), p. 3,

at pp. 20–3; ILM (1993) 888; 95 ILR 1.

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attitude to treaties. The FRY formally declared that as the continuation of the SFRY it would strictly

abide by the SFRY’s treaty obligations. This accorded with the wishes of other states that the FRY

should abide by those obligations, albeit as one of the successor states of the SFRY. Other states

were therefore faced with a dilemma: they wanted the FRY to respect the treaties, especially human

rights conventions, to which the SFRY had been a party, but they could not accept the FRY as a

party on the basis of continuation of statehood. It was not only a matter of principle: acceptance of

the FRY’s assertion of continuation could have had an effect on the important question of

succession to other rights and obligations of the SFRY, especially with regard to property and debts

(see below). In 2000, the FRY accepted that it was not the continuation of the SFRY, and in 2003

changed its name to Serbia and Montenegro.

Czechoslovakia

At midnight on 31 December 1992, the state of Czechoslovakia was dissolved and was succeeded by

two states, the Czech Republic and Slovakia. Both declared themselves to be successors to

Czechoslovakia and committed to fulfilling its treaty and other obligations.

In this they

consciously applied the rules in Article 34 of the 1978 Convention. There was no suggestion that the

Czech Republic, although the larger of the two new states, was the continuation of Czechoslovakia.

The policy adopted by both states with regard to all multilateral treaties to which Czechoslovakia

had been a party was that they would continue to bind each of the new states. In addition, each state

regarded itself as a signatory of all those multilateral treaties that had been signed, but not ratified,

before the dissolution.

Bilateral treaties entered into by Czechoslovakia were regarded by the two new states as

continuing to apply, except in so far as this would not be appropriate. For example, the application

of certain treaties had always been limited to the territory of Slovakia, in particular the 1977

Czechoslovakia–Hungary Treaty regarding the Danube Dam Project. In Gabcikovo-Nagymaros case,

the International Court of Justice decided that Article 12 of the 1978 Convention (succession does

not, as such, affect territorial regimes) reflected a rule of customary international law and applied to

the 1977 Treaty; thus the dissolution of Czechoslovakia did not

39. See the entries for the Czech Republic and Slovakia in UN Multilateral Treaties, ‘Historical

Information’; V. Mikulka, ‘The Dissolution of Czechoslovakia and Succession in Respect of Treaties’, on

(1996) Development and International Co-operation 45–63.

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affect the application of the 1977 treaty to Slovakia, it becoming binding on Slovakia alone on the

dissolution.

The Czech Republic and Slovakia each had discussions with certain states which had had bilateral

treaties with Czechoslovakia, seeking confirmation that, unless there was a special reason, all the

treaties would continue to apply to the two new states. The discussions were also an opportunity to

consider whether some treaties might be terminated or be replaced by new ones, particularly taking

into account the political changes that had taken place since the end of the communist regime.

Hong Kong and Macau

The circumstances of the handover of Hong Kong to China at midnight on 30 June 1997 were

unique and do not provide much in the way of insight into the more usual treaty succession

problems. Elaborate arrangements were made by China and the United Kingdom to enable treaty

continuity after the return of Hong Kong to China, and to leave the Hong Kong Special

Administrative Region (HKSAR) a large degree of autonomy in the conclusion of treaties in its own

right. For details, see Aust, pp. 322–31 and www.justice.gov.hk/choice.htm.

Similar provisions were made for Macau.

Succession to state property, archives and debts

As with the 1978 Vienna Convention, the Vienna Convention on the Succession of States in respect

of State Property, Archives and Debts 1983

(‘the 1983 Convention’) does not provide the answers

to all the myriad problems raised by the topic. Now twenty-two years old, it has received only six of

the fifteen ratifications needed for it to enter into force. They are those of the new states of Croatia,

Estonia, Georgia, Macedonia, Slovenia and Ukraine, which not unreasonably believed that the

Convention would help with the settlement of their own succession issues. The Convention

40. Gabcíkovo-Nagymaros Project (Hungary v. Slovakia), ICJ Reports (1997), p. 7, paras. 116–24; ILM

(1998) 162; 116 ILR 1.

41. See the statement by China recorded in UN Multilateral Treaties, ‘Historical Information’, and

www.macau.gov.mo/constitution/constitution_en.phtml.

42. ILM (1983) 298. For the treaty, the ILC draft and commentary, and an introduction, see A. Watts, The

International Law Commission 1949–1998, Oxford, 1999, vol. , pp. 1209–329. See also A. Aust,

‘Limping Treaties: Lessons from Multilateral Treaty-Making’ (2003) NILR 243 at 254–5. Oppenheim has