STATE SUCCESSION AND ITS THEORIES
State succession is meant by the substitution of one State over another territory. It signifies transfer of rights and duties from one international person to another in consequence of a territorial change. Oppenheim lays down that ‘a succession of international person occurs when one or more international persons take the place of another international person, in consequence if certain changes in the latter’s condition. The definition applies to all the cases of State succession except to that of mandate or trust territory when it is not sovereignty but a special type of legal competence. The idea of succession of international persons was introduced into International Law by Grotius as a corollary of the rule of Roman Civil Law by which an heir became the successor in law of the deceased person and was clothed with the latter’s rights and obligations.
Kinds of State Succession: State Succession may occur in a number of ways, for example dismemberment of an existing State, secession, annexation, cession, merger and decolonization of all parts of an existing State. State succession may be broadly divided into universal and partial succession.
- Universal Succession: In cases where the personality of the predecessor State is completely destroyed and is absorbed by another international person the succession is known as universal or total succession. It may take place either through voluntary merger or through annexation or subjugation. Oppenheim says that ‘when a State breaks up into parts which either becomes separate international persons of their own or are annexed by surrounding international persons’, is also a case of Universal Succession.
- 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 is known as partial succession. Partial Succession takes place for example, either by secession, by cession, by conquest and annexation or by dismemberment. Partial Succession is when a sovereign state loses a part of its independence through entering into a federal state or falling under suzerainty or under a protectorate or when a not fully sovereign State becomes fully sovereign.
It is to be noted that in both the types of State Succession there is always a common factor that is one or more sovereign’s substitute for another and therefore, the above distinction is merely an abbreviated way of defining the extent of change and transmissions of the rights and obligations of the old state to the new state.
Theories of State Succession:
- Universal Succession Theory: The earliest doctrine of State succession treats the process as the substitution of one State for another. According to this theory, a successor State shall enjoy its rights, discharges and obligations of the predecessor State. The new State is known as the direct heir of its predecessor’s personality in the same way as the heirs continued the personality and legal relations of the deceased in private law. This theory may also be called as the doctrine of Universal Succession. However, this theory has a number of defects-
- The analogy of the succession of private law has been characterized.
- There is an apparent defect with regards to the rights and duties of individuals and those states are not comparable in the sense that the former are personal and the latter is fictional.
- The successor state would have to be regarded as accepted by all kinds of treaties including personal and commercial treaties as well as the debts and contracts of the predecessor State.
- Continuity Theory: The Roman law theory of succession was not accepted and could not be expected to be transformed into practice by the States. These defects led to Max Huber contributing another theory which was referred as the continuity or universal succession theory. This theory was in fact the modification of the Universal theory. According to Huber, the notion of succession is general in law and neither belongs to private nor to public law. This doctrine was followed by Westlake in toto. This theory has also been criticized on several grounds-
- In case of secession the doctrine becomes completely inapplicable
- This theory is inconsistent with the practice of the States.
- “Whatever succession the successor states” admit that it is not as of any right but ex-gratia and they exercise in the freest manner the right to modify even those obligations which recognize in any way.
- Negative Theory: The lack of Correspondence between the Universal theory and the Continuity theory had given way to another theory which was altogether different from the other two theories. According to this theory the successor state does not succeed to the personality of the predecessor. It states that the sovereignty of the predecessor state over the successor state is abandoned. Even this theory has its defects, according to this theory succession involves a replacement of sovereignty that doesn’t mean that international law imposes no obligation upon the new sovereign. It is the duty of the State to discharge its duties and obligations since it accepts the benefits attached to it.
In conclusion it appears that no theory can provide solution to all the problems of State succession. The universal theory us impracticable for the successor State, the negative theory refuses to admit any general principle. Different theories in different cases may be applies at different times after accounting all the special features are presented by the successor itself.