Succession of states

  (Redirected from Successor state)

Succession of states is a theory and practice in international relations regarding successor states. A successor state is a sovereign state over a territory and populace that was previously under the sovereignty of another state. The theory has its roots in 19th-century diplomacy.[1] A successor state often acquires a new international legal personality, which is distinct from a continuing state, also known as a continuator, which despite change to its borders retains the same legal personality and possess all its existing rights and obligations (such as a rump state).[2]

Partial and universal state successionEdit

A state succession can be characterized as either being universal or partial. A universal state succession occurs when one state is completely extinguished and its sovereignty is replaced by that of one or more successor states. A partial state succession occurs when the state continues to exist after it has lost control of a part of its territory.[3]

An example of a partial state succession is the case of the split of Bangladesh from Pakistan, there was no challenge to Pakistan's claim to continue to exist and to retain its membership of the United Nations: it was a continuator and not a successor. Bangladesh eventually was recognized as a new state: it was a successor and had to apply for UN membership.

An example of a universal state succession is the dissolution of Czechoslovakia. Neither part claimed any continuity: both the Czech Republic and Slovakia were new successor states.

Rights and obligationsEdit

Consequent upon the acquisition of international legal personality, the difficult matter of succession to treaty rights and obligations arises.[4] Succession may refer to the transfer of rights, obligations, or property from a previously well-established predecessor state to its successor state, and can include overseas assets such as diplomatic missions, foreign-exchange reserves, and museum artifacts; and participation in treaties in force at the date of succession or international organizations. In an attempt to codify the rules of succession of states, the 1978 Vienna Convention entered into force on November 6, 1996.[5]

Classification of casesEdit

In their application to the acquisition of independence, distinctions should be drawn between different cases though the line of demarcation is not always clear:[6]

  • Bilateral and multilateral treaties necessarily give rise to different considerations.
  • There are real treaties and personal treaties. Real treaties affect the territory itself, such as boundary agreements or the grant of transit rights, which can continue irrespective of the personality of the state. The new state must take over the country in the condition in which it finds it, as the parent state cannot give more than it possesses. Such treaties can be described as "treaties creating purely local obligations."[6]

Exceptions to orderly successionEdit

There are several recent examples where a succession of states, as described above, has not been entirely adhered to. This is mostly a list of the exceptions that have occurred since the creation of the United Nations in 1945. In previous historical periods, the exceptions would be too many to list.

AfghanistanEdit

The Taliban state in Afghanistan (the Islamic Emirate of Afghanistan) became the de facto government of nearly all the country in the mid-1990s, but the Afghan Northern Alliance was still recognised by many nations and retained the UN seat.

ChinaEdit

The People's Republic of China (PRC) was established in 1949 in mainland China, claiming succession from the Republic of China (ROC). However, the succession of the PRC over mainland China was not initially recognized by many states because of Cold War politics and because the ROC which continues to maintain its claim over mainland China had continued to exist on the island of Taiwan and other islands, such as Penghu, Kinmen, Matsu, Pratas and Taiping ever since 1949. Despite this situation, the ROC in Taiwan maintained their membership as "China" in the United Nations, and a permanent seat on the UN Security Council. However, the PRC was granted the seat of "China" in the United Nations and Security Council in 1971, in place of the ROC whose diplomatic recognition was withdrawn and the representatives of Chiang Kai-shek were expelled. This was done through the adoption of General Assembly Resolution 2758, although the resolution makes no mention over Taiwan. Since 1999, the PRC exercises sovereignty over mainland China, Hong Kong and Macau; while the ROC continues to be unrepresented within the United Nations but exercises sovereignty over the Taiwan Area, with both claiming they are the sole legitimate government of both the mainland and Taiwan. The ROC also has claimed borderlands unclaimed by the PRC, most notably (Outer) Mongolia.

IrelandEdit

Ireland, then called the Irish Free State, seceded from the United Kingdom in 1922. The new state took the view that when a new state comes into being after formerly being part of an older state, its acceptance of treaty relationships established by the older state is a matter for the new state to determine by express declaration, or by conduct in the case of each individual treaty.[6] In practice, however, the Irish regarded the commercial and administrative treaties of the United Kingdom previously applying to the territory of the Irish Free State as remaining in force.[6]

IsraelEdit

Israel took the view that, by virtue of its declaration of independence in 1948, a new international personality was created, and that it started with a clean slate, and was bound only by such of the former international obligations affecting the territory as Israel might accept.[6]

Kampuchea/CambodiaEdit

When Democratic Kampuchea led by Pol Pot was militarily displaced by the Vietnamese-backed People's Republic of Kampuchea, the country's United Nations seat was held by Democratic Kampuchea for many years. It is now held by the Kingdom of Cambodia.

KoreaEdit

An important tenet of the modern state of Republic of Korea is that the Korean Empire's incorporation into the Empire of Japan from 1910 to 1945 is internationally recognized as an illegal occupation. In 1919 when the Provisional Government of the Republic of Korea was formed it claimed continuity directly from their pre-1910 status. In 1948 when the modern Republic of Korea was formed it claimed that it was identical with Provisional Government of the Republic of Korea and that the Provisional Government succeeded the Korean Empire.[7]

South Korea resumed membership to international organizations such as the Universal Postal Union and re-affirmed that pre-1910 treaties were still in force.[8]

Ottoman Empire/TurkeyEdit

There is some debate over whether the modern Republic of Turkey is a continuing state to the Ottoman Empire or a successor.[9] The two entities fought on opposing sides in the Turkish War of Independence (1919–23), and even briefly co-existed as separate administrative units (whilst at war with one another): Turkey with its capital in Angora (now Ankara) and the Ottoman Empire from Constantinople (now Istanbul), but this type of scenario is also common in civil wars. The nationalist faction, led by Mustafa Kemal who defected from the Ottoman army, established the modern republic as a nation-state (or new government regime) by defeating the opposing elements in the independence war. There remains debate about whether the Turkish War of Independence was a war of independence, or a civil war that led to a regime change.

The question of state succession is relevant to the issue of Armenian genocide reparations.[10]

PakistanEdit

When Pakistan became independent it claimed that it was automatically a member of the United Nations, as British India had been a founding member of the United Nations despite its colonial status. The United Nations Secretariat however expressed the following opinion:[6]

From the viewpoint of International Law, the situation is one in which part of an existing State breaks off and becomes a new State. On this analysis there is no change in the international status of India; it continues as a State with all treaty rights and obligations, and consequently with all rights and obligations of membership in the United Nations. The territory which breaks off—Pakistan—will be a new State. It will not have the treaty rights and obligations of the old State and will not, of course, have membership in the United Nations. In International Law, the situation is analogous to the separation of the Irish Free State from Britain, and Belgium from the Netherlands. In these cases the portion which separated was considered a new State, and the remaining portion continued as an existing State with all the rights and duties which it had before.

Soviet UnionEdit

International convention since the end of the Cold War has come to distinguish two distinct circumstances where such privileges are sought by such a successor state, in only the first of which may such successor states assume the name or privileged international position of their predecessor. The first set of circumstances arose at the dissolution of the Union of Soviet Socialist Republics (USSR) in 1991. One of the constituent republics of the USSR, the Russian Federation has declared itself to be "the continuator state of the USSR" on the grounds that it contained 51% of the population of the USSR and 77% of its territory. Consequently, Russia agreed that it would acquire the USSR's seat as a permanent member of the United Nations Security Council.[11] This was also accepted by the rest of the former states of the USSR; in a letter dated 24 December 1991, the Russian President Boris Yeltsin informed the Secretary-General that the membership of the USSR in the Security Council and all other United Nations organs was being continued by the Russian Federation with the support of the nine member countries of the Commonwealth of Independent States.[12] All Soviet embassies became Russian embassies.

A special case for the Baltic states had existed. An important tenet of the modern states of Estonia, Latvia and Lithuania is that their incorporation into the Soviet Union from 1940 to 1991 constituted an illegal occupation. In 1991 when each Baltic state regained their independence they claimed continuity directly from their pre-1940 status. Many other states share this view, and as such, these states were not considered either predecessor or successor states of the Soviet Union. As a consequence, the Baltic states were able to simply re-establish diplomatic relations with countries, re-affirm pre-1940 treaties still in force, and resume membership to international organizations.[13]

YugoslaviaEdit

After four of the six constituent republics of the Socialist Federal Republic of Yugoslavia seceded in 1991 and 1992, the rump state, renamed the Federal Republic of Yugoslavia, stated it was the continuation of the state of Yugoslavia—against the objections of the newly independent republics. Representatives from Belgrade continued to hold the original Yugoslavian UN seat—however, the United States refused to recognize it. The remaining territory of the federation was less than half of the population and territory of the former federation. In 1992 the Security Council on September 19 (Resolution 777) and the General Assembly on September 22, decided to refuse to allow the new federation to sit in the General Assembly under the name of "Yugoslavia" on the theory that the Socialist Federal Republic of Yugoslavia had dissolved. The Federal Republic of Yugoslavia (later renamed Serbia and Montenegro) was admitted as a new member to the United Nations in 2000; in 2006, Montenegro declared independence and Serbia continued to hold the federation's seat. Additionally, Kosovo declared independence in 2008.

The Agreement on Succession IssuesEdit

The first negotiations on succession issues of the former Socialist Yugoslavia had begun in 1992 within the framework of the Working Group on Succession Issues of the Peace Conference on Yugoslavia.[14] The agreement was initially prevented by the insistence of the Federal Republic of Yugoslavia that it is exclusive legal and political continuator of the Socialist Yugoslavia as well as the owner of all state property owned by the earlier socialist federal government, and was willing to renounce a part of it only as an act of goodwill.[14] Federal Republic of Yugoslavia interpreted breakup of Yugoslavia as a process of serial secessions and not as a complete dismemberment of the earlier state, interpretation rejected by other former Yugoslav republics.[14] Badinter Arbitration Committee recommended a division of assets and liabilities based on principle of equity and even referred to the 1983 Vienna Convention on Succession of States in Respect of State Property, Archives and Debt (convention not in force which at the time was signed by only six states, including SRF Yugoslavia).[14] This proposal was unacceptable to the Federal Republic of Yugoslavia which therefore motivated the International Monetary Fund to develop alternative key model which included economic power of republics and their contribution to the federal budget which was accepted by all.[14] The key determined participation of Federal Republic of Yugoslavia with 36.52%, Croatia with 28.49%, Slovenia 16.39%, Bosnia and Herzegovina with 13.20% and Macedonia with 5.20%.[14] Agreement was also reached on gold and other reserves at the Bank for International Settlements but the final conclusion was postponed by the beginning of the Kosovo War.[14]

After the end of the NATO bombing of Yugoslavia followed next year by the overthrow of Slobodan Milošević successor states concluded their agreement. In 2001, with the support of the international community, five countries (Slovenia, Croatia, Bosnia and Herzegovina, The Former Yugoslav Republic of Macedonia – today North Macedonia and the Federal Republic of Yugoslavia – today Serbia) signed the Agreement on Succession Issues which conclusively confirmed that five sovereign equal successor states were formed upon the dissolution of the former SFR Yugoslavia.[15] It entered into force on 2 June 2004 when the last successor state ratified it.[15] The agreement was signed as an umbrella agreement which included annexes on diplomatic and consular properties, financial assets and liabilities, archives, pensions, other rights, interests and liabilities as well as private properties and acquired rights.[14] At the subsequent dissolution of the state union of Serbia and Montenegro (one of the five successor states) two countries agreed on Serbian sole succession of rights and obligations of their federation.

ExamplesEdit

See alsoEdit

ReferencesEdit

  1. ^ "The Term State Succession Under International Law Signifies The Transmission of The Rights and Obligations of One State to Another in Consequence of Territorial Sovereignty". The Lawyers & Jurists. 2013-09-09. Archived from the original on 2017-08-06. Retrieved 2017-08-06.
  2. ^ Crawford, James (2006). The Creation of States in International Law. Clarendon Press. pp. 667–72. ISBN 9780199228423.
  3. ^ "Kinds of State Succession". www.sheir.org. Archived from the original on 2017-08-07.
  4. ^ Roberts-Wray, K. (1966). Commonwealth and Colonial Law. London: Stevens & Sons. p. 267. OCLC 499240836.
  5. ^ "Vienna Convention of succession of States in respect of treaties". Treaty Series. 1946 (33356): 3–188. Nov 1996.
  6. ^ a b c d e f Commonwealth and Colonial Law by Kenneth Roberts-Wray, London, Stevens, 1966. P. 267.
  7. ^ "Riss 통합검색 - 국내학술지논문 상세보기".
  8. ^ "대한제국 국제조악 효력확인". 1986-08-04.
  9. ^ Öktem, Emre (2011). "Turkey: Successor or Continuing State of the Ottoman Empire?". Leiden Journal of International Law. Cambridge University Press. 24 (3): 561–583. doi:10.1017/S0922156511000252.
  10. ^ Dumberry, Patrick (2012). "Is Turkey the 'Continuing' State of the Ottoman Empire Under International Law?". Netherlands International Law Review. 59 (02): 235–262. doi:10.1017/S0165070X12000162.
  11. ^ Bühler, Konrad G. (2001). State Succession and Membership in International Organizations. Legal Aspects of International Organization Series. Volume 38. Martinus Nijhoff Publishers. pp. 161–4. ISBN 9789041115539. |volume= has extra text (help)
  12. ^ "Member States of the United Nations - Russia*". the United Nations. Archived from the original on 30 December 2013. Retrieved 28 December 2013.
  13. ^ Bühler, Konrad G. (2001). State Succession and Membership in International Organizations. Legal Aspects of International Organization Series. Volume 38. Martinus Nijhoff Publishers. pp. 177–9. ISBN 9789041115539. |volume= has extra text (help)
  14. ^ a b c d e f g h Stahn, Carsten (2002). "The Agreement on Succession Issues of the Former Socialist Federal Republic of Yugoslavia". The American Journal of International Law. 96 (2): 379–397.
  15. ^ a b "SFRY Succession". Government of Slovenia; Government Communication Office. Retrieved 8 January 2021.
  16. ^ Serhii Plokhy (7 September 2006). The Origins of the Slavic Nations: Premodern Identities in Russia, Ukraine, and Belarus. Cambridge University Press. p. 203. ISBN 978-1-139-45892-4.

BibliographyEdit

  • Burgenthal/Doehring/Kokott: Grundzüge des Völkerrechts, 2. Auflage, Heidelberg 2000 (in German)

External linksEdit