Continuity Theory of State Succession (A Study with Reference to Vienna Convention on Succession of States in respect of Treaties 1978)

Introduction

State Succession in its most simpler meaning refers to the replacement of one State by another in the responsibility for the international relations of territory. More simply, State succession involves the transfer of a territory from one State (the predecessor State) to another State (the successor State). There was the tendency of state succession  during the period of colonization as well as the World War II. As a result Approximately 100 new States emerged with the end of decolonization. Recently, Western and Eastern European geography has changed dramatically. Germany reunified, while the Soviet Union, Yugoslavia and Czechoslovakia dissolved. What were previously five States now represent twenty-three.

The state succession although not sound good in present context, many scholars on international law accept that the state succession may happen at any time within many circumstances. The earlier practices of state succession was primarily based upon the use of force by one state to another state. However, the situation has changed and the world is not advocating in the favour of legal succession of states i.e., succession by consent.

In this regard, several theories have been found to have been advocated by many scholars on international law. Among all those developed theories, the Theory of Continuity is one of the mostly argued theory. These theory is an earlier developed theory which says that there is the continuity of the obligations of the predecessor state arised by the treaties and conventions to the successor state. The theory was in debate during the middle of the nineteenth century. However, with the development of other theories regarding the succession of states, this theory is also subjected to many criticisms. Yet in the conventions regarding the state succession, some provisions regarding the Continuity theory on state succession are incorporated. Not only this there are some examples of application of this theory in the state succession.

The International Law Commission (ILC) has considered the matter extensively and two international conventions[1] on the law of state succession have been adopted Neither of the two conventions has entered into force although each requires but fifteen ratifications or accessions for entry into force.

 Introduction to State Succession:

State Succession means a succession of government occurred when the government of a state is replaced with a new one. State Succession occurs when a state ceases to exist or a new state is formed within the territory of an existing state or territory is transferred from one state to another state.[2]According to Oppenheim, “A succession of international person occurs when one or more international persons take place of another international person, in consequence of certain changes in the latter’s condition.”

Vienna Convention on Succession of States in respect of Treaties in its Article 2(1(b))(Use of Terms) defines  "succession of States" means the replacement of one State by another in the responsibility for the international relations of territory.

State succession may take different forms[3]. Such as:
1. A State may break up and disappear giving way to the emergence of two or more new States (former USSR: 1991; Yugoslavia: 1991-1992; Czechoslovakia: 1993)

2. A portion of the territory of a State may secede or separate and become the seat of a new State (Pakistan from India: 1947; Bangladesh from Pakistan: 1971; Eritrea from Ethiopia: 1993)

3. A colony may become independent and give rise to a newly independent State (starting with Haiti in 1804)

4. Two or more States may merge to create a single new State (the merger of Syria and Egypt to form the United Arab Republic between 1958 and 1961)

5. A State may be taken over and assimilated by another State (absorption of the German Democratic Republic by the Federal Republic of Germany: 1990)

6. A portion of the territory of a State may be transferred from one State to another State by way of cession: such was the case in the purchase of Louisiana by the United States from France in 1803. As a form of State succession, the cession of a territory from one State to another was quite current at the time. It often accompanied the conclusion of a peace treaty between the Predecessor State and the Successor State.

      The rule of state succession was incorporated from the Roman law by Grotius. In the Roman Law when a person dies his rights and duties were succeeded by his successors. This principle was applied by Grotius in International Law as well. [4]

Theories Regarding State Succession

There are several theories regarding the state succession. Some of the major theories of state succession according to D.P.O.’ Connel, are as follows:

a.     Negative Theories

Negative Theories were developed during the mid-nineteenth century and the early part of Twentieth Century when the Universal Succession Theory did not take into account the existing facts of international law. This theory contends that the sovereignty of the predecessor state over the absorbed territory is abandoned. It means that upon succession, the new sovereign is absolutely free of any of its predecessor’s obligations. 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.

b.     Theories importing International Law

According to this theory, international law based on the positive practice of state directs the successor state to discharge certain of its predecessor’s obligations and vests certain of its predecessor’s right.  This approach is useful with respect to the effect of change of sovereignty on relationships governed by international law, such as, treaties.

c.     Communist Theory of State Succession

The Communist Theory of State Succession signifies that a successor state is burdened by the economic and political commitments of the predecessor.

Continuity Theory of State Succession

Under the theory of continuity, the successor state inherits all pre-existing treaties whether or not the predecessor state continue to exist  and the treaties of the predecessor state automatically devolve to the successor state if they apply either to the territory of the successor state.[5]

Hence succession in this case is substitution plus continuation.[6]
The continuation theory  of state succession is an anti-thesis to the clean-slate theoryof membership.[7] Under the continuity theory, rights and duties may still pass to States that have lost extensive portions of their territories and/or have undergone radical changes in government as long as they are considered to have inherited the essential legal identityof the former member.

Under the continuity theory, there can be only two ways to view the division of a state: (i) as a "breakaway," in which one of the divisions represents the continuing existence of the State while the others represent States that have seceded from it; or (ii) as a complete "dissolution," in which the State has been dissolved and none of the resulting States represent its continuity.

The theory of  continuity consists of following four types:

a.     The Theory of Universal Succession

                                                                  According to this theory, change of rules whether effected by the cession or territory, by revolution or by death, cannot involve the replacement of one right or duty by another, but only a replacement of their subjects. If a ruler acts in a private capacity, her/his contracts expire with her/his death or expulsion; but if s/he acts in her/his princely office his commitments relate not to her/himself but to people through whom in virtue of the social contract, s/he ultimately derives her/his authority. This theory was popular up to the middle of nineteenth century, according to this theory, succession takes place by virtue of a legal principle antecedent to the enacted law of any society, and therefore, antecedent to positive law of nations. But it may be noted that succession occurs not in virtue of an external legal prescription but in virtue of a legal quality which reposes in the objects of succession.

b.     The Theory of Popular Continuity

            This theory contends that the change in sovereignty involves no more than a change in the fictitious element in political organization, the real element surviving intact. Obligations of a political character, such as, treaties attach to the element of sovereignty and lapse with it, obligations of a patrimonial character,  including most economic and judicial matters attach to society and  remain attached. Thus while the emphasis in this theory is upon legal continuity, therefore, the degree of continuity, actually achieved is in virtue of this transformation, considerably less than that achieved in the theory of Universal Succession.

c.     The Theory of Organic Substitution

                                                                  This theory emphasizes more the nature of change itself than the legal effects of political change. When states appear and disappear, the people and territory are integrated in a new organic being. There is a change in the juridical element of organization, which doesn’t occur in cases of change of government. The legal institutions which attach to the factual elements survive the change while those which attach to the organizational element do not survive it. This theory doesn’t radically, differ with the preceding one. D.P.O’ Connel “…..this means that the successor state takes over all the right and duties of its predecessor, save those which are essentially political, if it substitutes itself factually in the property of its predecessor it must also substitute itself in the encumbrances upon that property. 

d.     The Theory of Self Abnegation

                                                      The state is at liberty to take over or reject whatever suits it in the previous legal order. It integrates within its own legal order all existing law which is compatible therewith and which is not expressly repealed. This theory emphasizes the continuity rather than disruption and constructs the legal bond of continuity on the basis of tacit consent of all the parties involved.

Practices of Continuity Theory of State Succession

India is the same legal entity as British India and Pakistan is a new state.
            Prior to India's independence, the sub-continent of India consisted of two distinct entities: British India & Princely States. The Indian Independence Act, 1947, provided for the fragmentation of the sub-continent into three separate entities viz., (1) the Dominion of India, (2) the Dominion of Pakistan, and the Princely States.[8]The Princely States had the option either to join India or Pakistan on the basis of geographical contiguity, composition of population and the economic factors.
          The Dominion known as India will not only in name but also in fact remain identifiable with the international person known as India an all the obligations and rights of India will continue to be discharged or asserted by the dominion of India.
          The Partition Council approved the Report of the Steering Committee. Thus the view of the Indian Dominion and the United Kingdom that the independence act did not affect India's international personality but only introduced a change in the form of its government. In Darbai v. Air India Limited (26), an Indian court declared that there was no change in India's international position even after the attainment of Dominion status..

Pakistan after the independence of Bangladesh

When Bangladesh in 1971 seceded from Pakistan, Pakistan membership in the UN remained unaffected by the loss of its eastern province, while Bangladesh later applied for and obtained UN membership in 1974. Article 34 (1)(b) of the Vienna Convention on Succession of States in respect of Treaties 1978 ensures the continuity of treaty of the predecessor state in the international treaty regime.[9]

Yugoslavia was generally regarded as the successor state to Serbia

In the context of Yugoslavia, for example, the issue of 'continuity' was a problem of classification or taxonomy Insofar as it was of importance, not only for membership in international organizations, but also as regards entitlement to assets and responsibility for debts, treaty obligations and delicts.

The Serbian and Montenegrin Republics claimed to be the continuity of Yugoslavia- The international community rejected this claim. But,  the Security Council finally decided that although Serbia and Montenegro could not continue automatically the membership of the former Socialist Republic of Yugoslavia, they should apply for UN membership but should not participate in the work of the General Assembly. This is based on a finding that the claim to be the continuity has not been generally accepted.

Secession of Syria from the United Republic
The secession of Syria from the United Republic took place in 1958 as a result of the Merger of Egypt & Syria. When those two countries in February 1958 united to become a single state, the foreign minister of the United Arab Republic stated that the Union was a single member of the United Nations. Syria's secession in September 1961 did not affect the UAR's membership.  

The Union of Tanganyika and Zanzibar
The United State of Tanganyika and Zanzibar (Tanzania) declared in 1964 that it is now a single member of the united Nations bound by the provisions of the Charter, and that all international treaties and agreements in force between the Republic of Tanganyika or the People's Republic of Zanzibar and other states or international organizations will remain in force within the regional limits prescribed on their conclusion and in accordance with the principles of international law.

Conclusion

In the light of all the information about the continuity theory of state succession, it is important to study it in the light of the relevant international treaties. Vienna Convention on Succession of States in respect of Treaties 1978 is the international instruments that has provided several international provisions regarding the state succession. Under the treaty, some provisions are stated which can be understood in the light of Theory of Continuity.

Article 8 and Article 9 of the Vienna Convention on Succession of States in respect of Treaties 1978 states that the obligations or rights of the predecessor state doesn’t become the  obligations and rights of successor state. [10]

Article 10 of the convention provides an option to choose for the successor state to expressly choose to consider itself a party to the treaty  [11]

Article 11 of the Convention states that the effect of succession do not affect the territory established by the treaties as well as obligations and rights established by a treaty and relating to the regime of a boundary.[12]

Article 13 of the Convention is an important application of the continuity theory which provides  the permanent sovereignty of the people  and state over the natural wealth and resources affirmed by international law. [13]  From this provision in the Convention,  it is clear that although the succession of states may take place in different circumstances among many different actors, the rights and claims of people of that particular state is not infringed. This provision is consistent with the Theory of Popular continuity which explains the succession as a fictitious change in the government. Other provisions regarding the factors that the succession of state does not affect is stated in Article 12 of the Convention.

As it can be seen from the convention itself,  incorporation of the theory in continuity has been maintained in the present act in different forms. [14]However, main legal problem generated  in such  cases especially by the emergence of new states, involve how and under what conditions new entities are accepted as the actors within this system , what should happen to the property belonging to and the debts[15] assumed  by the predecessor and how should the legal relation  of the new states towards the existing states be regulated, base on either international customary law on treaty law. [16]Besides this, the existing provisions of this conventions obliges to only those countries who are party to it. It requires the consent of the involving party in this convention to continue or discontinue the treaties which were in force prior to succession. [17]

Political entities are not absolute in nature. They are subject to change. New states appear and old states disappear.' Federations, mergers, dissolutions and secessions take place. International law has to incorporate such events into its general framework with the minimum of disruption and instability. Such changes have come to the fore since the end of the Second World War and the establishment of over 100 new, independent countries.[18]The practice of state succession, regardless of its form, is sure to exist in the future as well. So to address that situation, it is obvious to develop a legal framework under which the justifiable succession of states can be regulated. However, the continuity theory, regardless the origin of many theories of state succession has a rationality in regard to the continuity of treaty obligations of the state. Vienna Convention on Succession of States in respect of Treaties  1978, Vienna Convention on the Succession of  States in respect of State Property, Archives and Debt s 1983  consists of many justifiable provisions regarding the continuity theory of state succession. The succession of state is in fact the alteration in the political scenario of the state but the originality of the state remains unchanged. In that situation, the continuity theory in the state succession in terms of the treaty has its significant effect in the regulation of its treaty obligations of any state which undergoes succession or the state which is succeeded. However, some alteration in the obligation due to the change in the political scenario and other factors should be taken into concern.

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[1] Vienna Convention on Succession of States in respect of Treaties 1978, The Vienna Convention on the Succession of  States in respect of State Property, Archives and Debt s 1983

[2] S.K.Kapoor, International Law and Human Rights, 17^th Edition, Central Law Agency, 169.

[3] Legalserviceindia.com, accessed on 05/05/2011

[4] S.K.Kapoor, International Law and Human Rights, 17^th Edition, Central Law Agency, 169.

[5]http://books.google.com.np/books?( Succession of states, By Mojmir Mrak, 30)

[6] http://www.lawnotes.in/Continuity_Theory

[7] www.legalserviceindia.com/.../insu.htm

[8] The Dominion of Pakistan would consist of East Bengal, West Punjab, Sind, the Chief Commissioner's Province of British Baluchistan and the North-West Frontier Province.

[9] Article 34(1)(b)- 1. When a part or parts of the territory of a State separate to form one or more States, whether or not the predecessor State continues to exist:
(a) any treaty in force at the date of the succession of States in respect of the entire territory of the predecessor State continues in force in respect of each successor State so formed;
(b) any treaty in force at the date of the succession of States in respect only of that part of the territory of the predecessor State which has become a successor State continues in force in respect of that successor State alone.

[10]Article (8)1. The obligations or rights of a predecessor State under treaties in force in respect of a territory at the date of a succession of States do not become the obligations or rights of the successor State towards other States parties to those treaties by reason only of the fact that the predecessor State and the successor State have concluded an agreement providing that such obligations or rights shall devolve upon the successor State.
 Article 9 (1). Obligations or rights under treaties in force in respect of a territory at the date of a succession of States do not become the obligations or rights of the successor State or of other States parties to those treaties by reason only of the fact that the successor State has made a unilateral declaration providing for the continuance in force of the treaties in respect of its territory.

2. In such a case, the effects of the succession of States on treaties which, at the date of that succession of States, were in force in respect of the territory in question are governed by the present Convention.

[11]Article 10(1). When a treaty provides that, on the occurrence of a succession of States, a successor State shall have the option to consider itself a party to the treaty, it may notify its succession in respect of the treaty in conformity with the provisions of the treaty or, failing any such provisions, in conformity with the provisions of the present Convention.
2. If a treaty provides that, on the occurrence of a succession of States, a successor State shall be considered as a party to the treaty, that provision takes effects as such only if the successor State expressly accepts in writing to be so considered.

[12] Article 11. A succession of States does not as such affect:  (a) a boundary established by a treaty; or (b) obligations and rights established by a treaty and relating to the regime of a boundary.

[13] Article 13:Nothing in the present Convention shall affect the principles of international law affirming the permanent sovereignty of every people and every State over its natural wealth and resources.

[14] The convention has not  entered into force although it requires fifteen ratifications or accessions for entry into force.

[15] The Vienna Convention on the Succession of  States in respect of State Property, Archives and Debt s 1983 has been drafted for providing legal framework on the particular situation. However, this convention is not yet in force. It consists of 7 signatories and 7 parties.

[16] http://books.google.com.np/books?( Succession of states, By Mojmir Mrak, 30)

[17] Article 24 of the Vienna Convention on Succession of States in respect of Treaties  1978

[18] International Law, FIFTH EDITION, MALCOLM N. SHAW, Cambridge University Press, 861