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Succession with respect to matters other than treaties Membership of international organisations 151 Succession to membership of international organisations will proceed (depending upon the terms of the organisation’s constitution) according to whether a new state is formed or an old state continues in a slightly different form. In the case of the partition of British India in 1947, India was considered by the UN General Assembly as a continuation of the previous entity, while Pakistan was regarded as a new state, which had then to apply for admission to the organisation.152 Upon the merger of Egypt and Syria in 1958 to form the United Arab Republic, the latter was treated as a single member of the United Nations, while upon the dissolution of the merger in 1961, Syria simply resumed its separate membership of the organisation.153 In the case of the merger of North and South Yemen in 1990, the new state simply replaced the predecessor states as a member of the relevant international organisations. Where the predecessor state is dissolved and new states are created, such states will have to apply a new for membership to international organisations. For example, the new states of the Czech Republic and Slovakia were admitted as new members of the UN on 19 January 1993. The Sixth (Legal) Committee of the General Assembly considered the situation of new states being formed through division of a member state and the membership problem and produced the following principles: 1.That, as a general rule, it is in conformity with legal principles to presume that a state which is a member of the Organization of the United Nations does not cease to be a member simply because its Constitution or frontier has been subjected to changes , and that the extinction of the state as a legal personality recognised in the international order must be shown before its rights and obligations can be considered thereby to have ceased to exist.
- That when a new state is created, whatever may be the territory and the populations which it comprises and whether or not they formed part of a state member of the United Nations, it cannot under the system of the Charter claim the status of a member of the United Nations unless it has been formally admitted as such in conformity with the provisions of the Charter.
- Beyond that, each case must be judged according to its merits.
Succession to assets and debts 156 The relevant international law in this area is based upon customary law. The Vienna Convention on Succession to State Property, Archives and Debts, 1983 is not currently in force, although most of its provisions (apart from those concerning ‘newly independent
states’) are reflective of custom. The primary rule with regard to the allocation of assets (including archives) and debts in succession situations is that the relevant parties should settle such issues by agreement. Virtually all of the rules that are formulated, for example in the Vienna Convention, 1983, are deemed to operate only where such agreement has not taken place.157 In addition, the Arbitration Commission on Yugoslavia declared in Opinion No. 9 that ‘the successor states to the SFRY must together settle all aspects of the succession by agreement’158 and reinforced this approach in Opinion No. 14, declaring that ‘the first principle applicable to state succession is that the successor states should consult with each other and agree a settlement of all questions relating to the succession’.159 State property The classic rule postulates that only the public property of the predecessor state passes automatically to the successor state,161 but this, of course, raises the question of the definition of public property. The distinction between public and private property is to some extent based upon the conceptual differences between public and private law, a distinction unknown to common law countries. Although in many cases there will be a relevant agreement to define what is meant by public property in this context, 162 this does not always occur and recourse to municipal law is often required. This indeed may be necessitated to a large extent also because international law itself simply does not provide many of the required definitions with regard to, for example, public companies or public utility undertakings. The relevant municipal law for such purposes is that of the predecessor state. It is that law which will define the nature of the property in question and thus in essence decide its destination in the event of a succession.164 Article 8 of the Vienna Convention, 1983 provides that state property for the purposes of the Convention means ‘property, rights and interests which, at the date of the succession of states, were, according to the internal law of the predecessor state owned by that state’165 and this can be taken as reflective of customary law. The Arbitration Commission on Yugoslavia reiterated this position by declaring that ‘to determine whether the property, debts and archives belonged to the SFRY, reference should be had to the domestic law of the SFRY in operation at the date of succession’. 166 The relevant date for the passing of the property is the date of succession167 and this is the date of independence, although difficulties may arise in the context of the allocation of assets and debts where different dates of succession occur for different successor states.168 Such problems would need to be resolved on the basis of agreement between the relevant parties.169 The Arbitration Commission was faced with two particular problems. First, the 1974 SFRY Constitution had transferred to the constituent republics ownership of many items
provides that ‘immovable property, having belonged to the territory to which the succession of states relates, situated outside it and having become state property of the predecessor state during the period of dependence, shall pass to the successor state’, while other immovable state property situated outside the territory ‘shall pass to the successor state in proportion to the contribution of the dependent territory’. Neither of these propositions can be regarded as part of customary international law and their force would thus be dependent upon the coming into effect of the Convention, should this happen.182 As far as movable property connected with the territory in question is concerned,183 the territorial principle continues to predominate. O’Connell notes that ‘such property as is destined specifically for local use is acquired by the successor state’,184 while the formulation in the Vienna Convention, 1983 is more flexible. This provides that ‘movable state property of the predecessor state connected with the activity of the predecessor state in respect of the territory to which the succession of states applies shall pass to the successor state’.185 There are, however, likely to be difficulties of precision in specific cases with regard to borderline instances of what may be accepted as either property ‘destined specifically for local use’ or property ‘connected with the activity of the predecessor State in... the territory’. The view taken by the Arbitration Commission in Opinion No. 14 appears to be even more flexible for it simply notes that ‘public property passes to the successor state on whose territory it is situated’.186 However, particular kinds of property may be dealt with differently. For example, the Yugoslav Agreement on Succession Issues provides that the rule is not to apply to tangible state property of great importance to the cultural heritage of one of the successor states and which originated there, even though situated elsewhere at the date of independence. Such property is to go to the state whose cultural heritage it is.187 Secondly, military property is to be made the subject of special arrangements.188 The situation with regard to movable property outside of the territory in question is more complicated. Article 17(1)c of the Vienna Convention, 1983 provides that such property (in the case of separation of part of a state) ‘shall pass to the successor state in an equitable proportion’. This must be regarded as a controversial proposition since it appears to modify the dominant territorial approach to the succession of state property.189 However, in the case of the dissolution of the predecessor state, the argument in favour of an equitable division of movable property not linked to the territory in respect of which the succession occurs ismuch stronger.190 The Arbitration Commission on Yugoslavia limited itself to noting the general principle that state property, debts and archives of the SFRY (other than immovable property within each of the successor states) should be divided between the successor states191 and that while each category of
assets and liabilities need not be divided equitably, the overall outcome had to be an equitable division.192 The state succession situation which in general poses the least problem is that of absorption or merger, since the absorbing or newly created state respectively will simply take over the assets and debts of the extinguished state. The issues were, however, discussed in detail in the context of German unification. Article 21 of the Unification Treaty provides that the assets of the German Democratic Republic which served directly specified administrative tasks were to become Federal assets193 and were to be used to discharge public tasks in the territory of the former GDR. Article 22 dealt with public assets of legal entities in that territory, including the land and assets in the agricultural sectors which did not serve directly specified administrative tasks.194 Such financial assets were to be administered in trust by the Federal Government and be appointed by federal law equally between the Federal Government on the one hand and the L¨ander of the former GDR on the other, with the local authorities receiving an appropriate share of the L¨ander allocation. The Federal Government was to use its share to discharge public tasks in the territory of the former GDR, while the distribution of the L¨ander share to the individual L¨ander was to take place upon the basis of population ratio. Publicly owned assets used for the housing supply became the property of the local authorities together with the assumption by the latter of a proportionate share of the debts, with the ultimate aim of privatisation. In fact, state practice demonstrates thatwith the exception of someclear and basic rules, all will depend upon the particular agreement reached in the particular circumstances. In the case of the former Czech and Slovak FederalRepublic, the two successor states agreed to divide the assets and liabilities of the predecessor state in the ratio of two to one (the approximate population ratio of the two new states).196 In the case of the former Soviet Union, Russia and the successor states signed agreements in 1991 and 1992 apportioning assets and liabilities of the predecessor state with the share of Russia being 61.34 per cent and the Ukraine being 16.37 per cent.197 In the case of the former Yugoslavia, the Agreement on Succession Issues of 2001, in addition to the provisions referred to above,198 provided for the distribution of assets on the basis of agreed proportions.199 Financial assets in the International Monetary Fund (IMF) andWorld Bank were distributed on a slightly different proportional basis (that became known as the IMF key).200 The IMF key was also used with regard to the distribution of assets in the Bank of International Settlements in an arrangement dated 10 April 2001.
State archives
Ethiopia or its natives and removed from Ethiopia to Italy since October 1935.208 In the case of Vietnam, the 1950 Franco-Vietnamese agreement provided for the return as of right of all historical archives,209 while a dispute between France and Algeria has been in existence since the latter’s independence over pre-colonial material removed to France.210 Where two or more states unite to form one successor state, the state archives of the former will pass to the latter.213Where part of a state secedes to form another state, unless the states otherwise agree the part of the state archives of the predecessor state, which for normal administration of the territory concerned should be in that territory, will pass, as will those parts of the state archives that relate directly to the territory that is the subject of the succession. The same provisions apply in the case of a dissolution of a state, which is replaced by two or more successor states, in the absence of agreement, with the addition that other state archives are to pass to the successor states in an equitable manner, taking into account all relevant circumstances.215 These principles were confirmed in the Yugoslav Agreement on Succession Issues, 2001,216 while it was additionally provided that archives other than those falling within these categories are to be the subject of an agreement between the successor states as to their equitable distribution. Public debt This is an area of particular uncertainty and doubt has been expressed as to whether there is a rule of succession in such circumstances.220 As in other parts of state succession, political and economic imperatives play a large role and much practice centres upon agreements made between relevant parties. The public debt (or national debt) is that debt assumed by the central government in the interests of the state as a whole. It constitutes a particularly sensitive issue since third parties are involved who are often reluctant to accept a change in the identity of the debtor. This encourages an approach based on the continuing liability for the debt in question and in situations where a division of debt has taken place for that situation to continue with the successor state being responsible to the predecessor state (where this continues, of course) for its share rather than to the creditor directly. And as article 36 of the Vienna Convention, 1983 notes, a succession of states does not as such affect the rights and obligations of creditors.221 Public debts222 may be divided into national debts, being debts owned by the state as a whole; local debts, being debts contracted by a sub governmental territorial unit or other form of local authority, and localised debts, being debts incurred by the central government for the purpose of local projects or areas.223 Local debts clearly pass under customary international law to the successor state, since they constitute arrangements entered into by sub-governmental territorial authorities now transferred to the
jurisdiction of the successor state and a succession does not directly affect them. In effect, they continue to constitute debts borne by the specific territory in question.224 Similarly, localised debts, being closely attached to the territory to which the succession relates, also pass to the successor state in conformity with the same territorial principle.225 There appears to be no definitive answer to the question as to the allocation of the national debt as such. In the case of absorption or merger, the expanding or newly created state respectively will simply take over the national debt of the extinguished state.226 The German unification example is instructive. In the case of secession or separation where the predecessor state continues to exist, it would appear that the presumption is that the responsibility for the general public debt of the predecessor state remains with the predecessor state after the succession.227 This would certainly appear to be the case where part of a state is transferred to another state.228 Generally the paucity of practice leads one to be reluctant to claim that a new rule of international law has been established with regard to such situations, so that the general principle of non-division of the public debt is not displaced. However, successor states may be keen to establish their international creditworthiness by becoming involved in a debt allocation arrangement in circumstances where in strict international law this may not be necessary.229 Further, the increasing pertinence of the notion of equitable distribution might have an impact upon this question. A brief review of some practice may serve to illustrate the complexity of the area. When Texas seceded from Mexico in 1840, for example, it denied any liability for the latter’s debts, although an ex gratia payment was in the circumstances made. However, no part of Colombia’s debt was assumed by Panama upon its independence in 1903 When in 1921, the Irish Free State separated from the United Kingdom, it was provided that the public debt of the UK would be apportioned ‘as may be fair and equitable’, having regard to any claims by way of set-off or counter-claim. The agreement between India (the continuation of British India) and Pakistan (the new state) provided for the responsibility of the former with regard to all the financial obligations, including loans and guarantees, of British India. India thus remained as the sole debtor of the national debt, while Pakistan’s share of this, as established upon the basis of proportionality relating to its share of the assets of British India that it received, became a debt to India. It was with this in mind, together with the example of the UK–Irish Free State Treaty of 1921, that led the International Law Commission to propose the draft that led to article 40 of the Vienna Convention, 1983. Article 40 provides that where part of a state separates to form another state, unless otherwise agreed, the state debt of the predecessor state passes to
On the one hand, it has been held to mean that the passing of sovereignty has no effect upon such rights, and on the other that it implies no more than that aliens should be, as far as possible, insulated from the changes consequent upon succession. The principle of acquired rights was discussed in a number of cases that came before the Permanent Court of International Justice between the two world wars, dealing with the creation of an independent Poland out of the former German, Russian and Austrian Empires. Problems arose specifically with regard to rights obtained under German rule, which were challenged by the new Polish authorities. In the German Settlers’ case,241 Poland had attempted to evict German settlers from its lands, arguing that since many of them had not taken transfer of title before the Armistice they could be legitimately ejected. According to the German system, such settlers could acquire title either by means of leases, or by means of an arrangement whereby they paid parts of the purchase price at regular intervals and upon payment of the final instalment the land would become theirs. The Court held that German law would apply in the circumstances until the final transfer of the territory and that the titles to land acquired in this fashion would be protected under the terms of the 1919 Minorities Treaty. More importantly, the Court declared that even in the absence of such a treaty: private rights acquired under existing law do not cease on a change of sovereignty... even those who contest the existence in international law of a general principle of state succession do not go so far as to maintain that private rights, including those acquired from the state as the owner of the property, are invalid as against a successor in sovereignty.242 The fact that there was a political purpose behind the colonisation scheme would not affect the private rights thus secured, which could be enforced against the new sovereign. It is very doubtful that this would be accepted today. The principles emerging from such inter-war cases affirming the continuation of acquired rights have modified the views expressed in the West Rand Central Gold Mining Company case 243 to the effect that, upon annexation, the new sovereign may choose which of the contractual rights and duties adopted by the previous sovereign it wishes to respect. The inter-war cases mark the high-water mark of the concept of the continuation of private rights upon succession, but they should not be interpreted to mean that the new sovereign cannot alter such rights. The expropriation of alien property is possible under international law subject to certain conditions.244 What the doctrine does indicate is that there is a presumption of the continuation of foreign acquired rights, though the matter is best regulated by treaty. Only private rights that have become vested or acquired would be covered by the doctrine. Thus, where rights are to come into operation in the future, they will not be binding
upon the new sovereign. Similarly, claims to unliquidated damages will not continue beyond the succession. Claims to unliquidated damages occur where the matter in dispute has not come before the judicial authorities and the issue of compensation has yet to be determined by a competent court or tribunal. The fact that the disappearance of the former sovereign automatically ends liability for any wrong it may have committed is recognised as a rule of international law, although where the new state adopts the illegal actions of the predecessor, it may inherit liability since it itself is in effect committing a wrong. This was brought out in the Lighthouses arbitration246 in 1956 between France and Greece, which concerned the latter’s liability to respect concessions granted by Turkey to a French company regarding territory subsequently acquired by Greece. The problem of the survival of foreign nationals’ rights upon succession is inevitably closely bound up with ideological differences and economic pressures.
State succession and nationality The issue of state succession and nationality links together not only those two distinct areas, but also the question of human rights. The terms under which a state may award nationality are solely within its control249 but problems may arise in the context of a succession. In principle, the issue of nationality will depend upon the municipal regulations of the predecessor and successor states. The laws of the former will determine the extent to which the inhabitants of an area to be ceded to another authority will retain their nationality after the change in sovereignty, while the laws of the successor state will prescribe the conditions under which the new nationality will be granted. The general rule would appear to be that nationality will change with sovereignty, although it will be incumbent upon the new sovereign to declare the pertinent rules with regard to people born in the territory or resident there, or born abroad of parents who are nationals of the former regime. Similarly, the ceding state may well provide for its former citizens in the territory in question to retain their nationality, thus creating a situation of dual nationality. This would not arise, of course, where the former state completely disappears. Some states acquiring territory may provide for the inhabitants to obtain the new nationality automatically while others may give the inhabitants an option to depart and retain their original nationality. Actual practice is varied and much depends on the circumstances, but it should be noted that the 1961 Convention on the Reduction of Statelessness provides that states involved in the cession of territory should ensure that no person becomes stateless as a result of the particular change in sovereignty. There may indeed be a principle in international law to the effect that the successor state should provide for the possibility of nationals of the predecessor state living in or having a
result of the succession of states, and that when this right has been exercised, the state whose nationality they have opted for shall attribute its nationality to such persons. Conversely, the state whose nationality they have renounced shall withdraw its nationality from such persons, unless they would thereby become stateless. The second part of the set of draft articles concerns specific succession situations and their implications for nationality. Article 20 concerns the situation where one state transfers part of its territory to another state. Here the successor state shall attribute its nationality to the persons concerned who have their habitual residence in the transferred territory and the predecessor state shall withdraw its nationality from such persons, unless otherwise indicated by the exercise of the right of option which such persons shall be granted. The predecessor state shall not, however, withdraw its nationality before such persons acquire the nationality of the successor state.Where two or more states unite to formone successor state, the successor state shall attribute its nationality to all persons who on the date of succession held the nationality of the predecessor state.259 In the case both of the dissolution of the predecessor state to form two or more successor states and the separation of parts of a territory to form one ormore successor states while the predecessor state continues to exist, the same fundamental rules apply. Articles 22 and 24 respectively provide that each successor state shall, unless otherwise indicated by the exercise of a right of option,260 attribute its nationality to (a) persons concerned having their habitual residence in its territory; and (b) other persons concerned having an appropriate legal connection with a constituent unit of the predecessor state that has become part of that successor state; and to (c) persons not otherwise entitled to a nationality of any state concerned having their habitual residence in a third state, who were born in or, before leaving the predecessor state, had their last habitual residence in what has become the territory of that successor state or having any other appropriate connection with that successor state.261 These provisions are meant to prevent a situation, such as occurred with regard to some successor states of the former Yugoslavia and Czechoslovakia, where the test of nationality of the successor state centred upon the possession of the citizenship of the former constituent republics rather than upon habitual residence, thus having the effect of depriving certain persons of the nationality of the successor state.
