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1. State succession occurs when a State ceases to exist and a new State is formed
within the territory of the existing State. When a succession situation arises, the
point of chief legal interest is the effect if any, on the international rights and
obligations of the State or States concerned.
2. (a) A State which has replaced another is called the succession State or New
State. The term new state signifies a State which has arisen from succession
where a territory, which previously formed part of an existing State, has become
independent.
(b) The State that has been replaced is known as the parent or predecessor
State.
Kinds of Successions
3. Two types:
a) Universal Succession or Total: Where the personality of the predecessor
State is completely destroyed, and is observed by another international
person. May take place either through voluntary merger or through
annexation or through subjugation.
b) Partial succession: When a part of the territory is severed from the parent
State and personality is affected only to the extent by which the territory is
transferred. Takes place either by secession i.e. separation from the
parent State, or by cession, or by conquest and annexation of a part, or by
dismemberment i.e. when a State is replaced by two or more States.
4. Universal as well as Partial succession may take place either voluntarily or by
revolt. When the replacement I peaceful, disruption of legal continuity is
minimized by mutual adjustment. Once such method is the conclusion of
inheritance or devolution agreement which is concluded between the
Predecessor and Successor State. Such agreements declare the affirmative
attitude towards the Successor State of the Predecessor State.
5. Succession of State is different from succession of govt. In the latter, personality
of a State, in contrast to case of succession of State is not affected, but a
change occurs either in the organization of the Govt or in some constitutional
structure of the State. The continuity of a States personality is neither disrupted,
nor does it bring about any juridical change in the State. Its rights and obligations
are continued by virtue of continuity of personality.
Theories of State Succession
Commercial treaties also are not binding on the successor State and are
generally extinguished.. Only those commercial treaties are assumed which can
be reconciled with the new order of things.
Dispositive treaties or real or localized treaties create rights in rem. These create
rights which are of permanent nature and are independent of the personality of
the State exercising sovereignty. Demarcation of boundary lines is an example of
dispositive treaty. State servitudes, a term used to denote exceptional restrictions
made by a treaty or otherwise on the territorial supremacy of a State by which a
part or whole of its territory is in a limited way made to serve a certain purpose or
interest of another State.
14. Political Rights and duties. No succession take place in respect of political rights
and duties. The succeeding State is not bound by the political treaties of the
former State.
15. Local rights and Duties. A genuine succession takes place in respect of local
rights and duties in respect of land, rivers, roads, railways etc., succeeding to the
rights and duties of the former State.
16. Contracts. Practice suggests that this depends on practice of successor State. IL
does not impose any obligation upon the conquering State to fulfill the obligations
of the conquered State. Eg. West Rand Gold Mining Co. Ltd v. King.
17. Concessionary contracts. Concessionary contract means the contract through
which certain concessions, such as, digging of mines, laying of railways, etc are
given through contracts. These are of local nature. Succeeding States may or
may not be bound by such concessionary contracts and would depend on the
facts and circumstances of each concessionary contract.
18. Public debts. Part IV of the Vienna Convention on State Property, Archive and
Debts, 1983 deals with financial obligations of predecessor State toward another
state or an international organization. Art 36 of the Convention provides that the
successor of a State does not as such affect the rights and obligations of
creditors. When the successor Sate is a newly independent State, no State debt
shall pass to the new State, unless an agreement between the two States
provides otherwise.
19. Succession to State Archives. Art 25 of the Vienna Convention on State Property,
Archive and Debts, 1983, lays special emphasis on preserving the integral
character of grounds of States archives of the predecessor State.
20. Unliquidated damages for torts. No succession takes place in this respect.
21. Nationality. Nationals of predecessor State as a rule loose their nationality at the
extinction of the State. They become nationals of the successor State. Gen, such
nationals are given a certain period within which they are to decide whether they
continue their loyalty towards the former State or accept the citizenship of the
succeeding State.
22. Succession to property in foreign State. Part II of the Vienna Convention on State
Property, Archive and Debts, 1983, deals with State Property. Art 11 provides
that unless otherwise agreed, the passing of State property will take place
without compensation. Art 12 provides that property, rights and interests owned
by a third State should not be affected by succession of states. Art 13 asks the
predecessor State to take all measures to prevent damage or destruction to
State property which passes to successor State. Art 15 allows special ref to be
made bilateral agreements between the predecessor State and the newly
independent State, without infringing the principle of permanent sovereignty of
every people over its wealth and natural resources.
23. Law. Civil laws continue till it is changed by the succeeding State.
24. This question arose after the partition of India into India & Pakistan. India was
originally the member of U.N. having signed the UN Charter of San Francisco.
Later it was ratified by the Govt of India.
After partition Pakistan claimed since it was part of India originally, it should get
the membership of UN in succession automatically.
The GA of the UN rejected the claim of Pakistan. According to the GA, when a
State becomes a international person, it can become the member of the UN only
after it is admitted in accordance with the provisions of the Charter, i.e . a State
should apply for the membership and be admitted by the decisions of the GA by
2/3 majority of the members present and voting on the recommendations of the
Security Council.
Thus, the principle of succession does not apply in case of the membership of
the UN.