3 - State Succession

Introduction to State Succession

• State Succession: Change or transfer of sovereignty over a territory.

  • Two scenarios presented:

    • Dissolution: State A ceases to exist, and two new states (X and Y) emerge. Example: SFRY.

    • Continuation: State A continues existing but loses parts of its territory that become new states (X and Y). Example: Soviet Union's transition to Russia.

• The influx of new states into the international community poses challenges to codifying state succession rules, particularly regarding treaties.

• Key documents:

  • Vienna Convention on Succession of States in Respect to Treaties (1977)

  • Restatement (Third) of the Foreign Relations Law of the United States (1987).

Historical Context

• Post-World War I changes reshaped the political landscape, prompting the need for clarifying state succession rules:

  • Consolidation in Europe: Formation of single states from smaller principalities.

  • Decolonization in Latin America: Emergence of independent states from former empires.

  • Colonial expansions: Emphasis on treaty recognition for indigenous arrangements.

Treaties and Succession

• Traditional Customary Rule:

  • Successor states have a 'clean slate' regarding predecessor treaties.

  • Successor states can choose treaties to join, except for those linked to territory (in rem treaties).

  • Continuator states maintain all treaties of predecessor states.

    • Example: Russia took on Soviet Union's treaties and UN membership.

• Vienna Convention on the Succession of States in respect of Treaties (1978):

  • Challenges the clean slate rule. A successor state automatically succeeds all treaties of its predecessor (Art. 34(1)(a)).

  • Exceptions for 'newly independent states' (Art. 16).

  • Not widely accepted by states, perceived as not reflecting customary law.

• Human Rights Treaties:

  • UN Human Rights Committee advocates for automatic succession for human rights treaties despite limited state practice supporting this view.

State Succession to International Responsibility

• Lack of rules on succession to responsibility in contrast to treaties.

• Hypothetical examples:

  • Dissolution Scenario: When states X and Y come to existence post-genocide by state A, what happens to A's responsibility?

  • Continuation Scenario: What about Montenegro after Serbia's independence? Would it share responsibility for genocide, if at all?

Case Studies: Yugoslavia and ICJ Jurisdiction

• Historical Context: SFRY dissolved in 1992 into five successor states.

  • FRY claimed continuity; most of the international community viewed it as a successor state.

  • Bosnia filed a genocide application against FRY; Croatia did similarly.

• ICJ Findings (2007 judgment):

  • Serbia not responsible for Srebrenica genocide but continued the responsibility discourse

  • Court found insufficient evidence to claim Montenegro’s responsibility; thus lacked jurisdiction over Montenegro.

Current Relevance and Ongoing Cases

• European Court of Human Rights: In Bijelic v. Montenegro and Serbia, issues of responsibility are revisited concerning violations against the ECHR.

  • Who bears responsibility: Serbia as continuator or Montenegro as successor?

  • Amicus curiae brief by Venice Commission (discussing Article 10 of ILC Articles on State Responsibility).

Key Developments in State Succession

• Historical events leading to state succession problems:

  • Dissolution of the Soviet Union and other communist states (1989-1992).

  • The complexities of treaties from once-existing empires and the chaos in forming new states (e.g., Yugoslavia).

Comparisons of Codification Efforts

• Vienna Convention vs. Restatement (Third):

  • Vienna Convention aimed for comprehensive codification and stated principles for state succession to treaties.

  • Restatement sought to provide guidance to American legal practitioners, focusing more narrowly on U.S. law.

Challenges in International Relations

• The differences in the aims of codification efforts affected their utility in resolving state succession disputes during the 1990s.

  • Vienna Convention lacked sufficient ratifications, rendering it non-binding.

  • Restatement's commentary provided insights into the expected behavior of new states concerning treaty obligations.

Types of State Succession

A. Absorptions of States

• Situations where states merge and one state's treaties prevail over the other:

  • Example: Germany’s absorption of the German Democratic Republic.

B. Boundary Changes

• Application of the moving boundary doctrine where treaties adjust based on territorial changes.

C. Emergence of New States

• Scenarios where new states arise from former entities:

  • Differing approaches towards obligations of these new states:

    • Clean-slate rule: New states not held to prior obligations.

    • Mixed outcomes in treaties depending on historical context.

Examination of International Treaties

A. Boundary Treaties

• Generally considered binding and surviving after state succession.

B. Codificatory Treaties

• Treated as binding regardless of state succession, as they often involve commitments to international norms.

C. Military Agreements

• These are particularly sensitive and likely negated with changes in state composition.

D. International Organizations

• States undergoing transformations face membership and contribution challenges in organizations like the UN or EC.

Conclusion and Future Considerations

• State succession to international responsibility remains largely indeterminate with little state practice.

• Clean slate rule applicable to treaties not relevant for responsibility succession due to inherent rights and entitlements.

• Need for further scholarly exploration on this topic and clearer legal frameworks.

Succession of States in respect of Treaties (1978)

• Date: Done at Vienna on 23 August 1978

• Entry into Force: 6 November 1996

• Reference: United Nations, Treaty Series, vol. 1946, p. 3

Part I: General Provisions

Article 1: Scope

• The Convention applies to the effects of a succession of States regarding treaties between States.

Article 2: Use of Terms

• Definitions:

  • Treaty: An international agreement between States.

  • Succession of States: Replacement of one State by another in international relations of territory.

  • Predecessor State: The replaced State.

  • Successor State: The replacing State.

  • Newly Independent State: A successor State whose territory was previously dependent.

  • Notification of Succession: A statement from a successor State consenting to be bound by a treaty.

  • Full Powers: Designation of representatives for notifications.

  • Ratification: The act of consent to be bound by a treaty.

Article 3: Cases not within the Scope

• The Convention does not apply to treaties between States and non-State actors or unwritten agreements but retains applicability of international law rules.

Article 4: Treaties Constituting International Organizations

• The Convention governs treaties that are the founding instruments of international organizations.

Article 5: Obligations from International Law

• A State may have duties to fulfill treaty obligations under international law regardless of the Convention's provisions.

Article 6: Cases of Succession of States

• Applies only to situations conforming with international law principles, particularly those in the UN Charter.

Article 7: Temporal Application

• Applies to successions after the Convention's entry into force unless otherwise agreed.

Article 8: Agreements for Devolution of Treaty Obligations

• Predecessor obligations do not become successor obligations solely due to agreements between the States.

Article 9: Unilateral Declaration by Successor States

• Successor State declarations about predecessor treaties do not automatically equate to legal obligations.

Article 10: Treaties Providing for Participation of Successor States

• Procedures for informing about participation in treaties due to succession.

Article 11: Boundary Regimes

• Succession of States does not affect existing boundary treaties.

Article 12: Other Territorial Regimes

• Treaties regarding territory use remain in effect despite changes in Statehood.

Article 13: Permanent Sovereignty Over Natural Resources

• Principles of sovereignty over resources are upheld.

Article 14: Validity of a Treaty

• The Convention does not prejudge treaty validity issues.

Part II: Succession in Respect of Part of Territory

Article 15: Succession in Respect of Part of Territory

• Treaties of the predecessor cease to be in force in the affected territory from the date of succession, while successor treaties apply unless otherwise established.

Part III: Newly Independent States

General Rule (Article 16)

• Newly independent States aren't bound to predecessor treaties solely by virtue of their existence.

Multilateral Treaties (Article 17)

1. Newly independent States can establish party status via notifications.

2. Application of treaties incompatible with treaty purposes is not allowed.

Part IV: Uniting and Separation of States

Article 31: Effects of Uniting States

• Treaties remain in force unless the successor State or treaty provides otherwise.

Article 34: Separation of Parts of a State

• Treaties continue for successor States formed by separation under specified circumstances.

Part V: Miscellaneous Provisions

Article 39: State Responsibility

• The Convention does not affect State responsibility arising from conflicts or hostilities.

Part VI: Settlement of Disputes

Article 41-44: Dispute Resolution Mechanisms

• Obligates parties to consult and negotiate for dispute resolution or submit to conciliation and judicial settlement if unresolved.

Part VII: Final Provisions

Article 46-50: Signature, Ratification, and Entry into Force

• Open for signature until specific dates and conditions for ratification and entry into force are established.