Lecture 6

State Succession

The term succession exists in domestic law it also exists in International law. In domestic law, succession
is an issue of “who inherits your estate when you pass away?” “To whom does your property go?” “To
whom does your wealth go?” “Who bears your obligations, your indebtedness, your liabilities when you
pass away?” As law students, you know that there are two types of succession: A) Testamentary when it
is governed by the will and B) Intestate succession when no will is left and there are fixed rules for that.

When you apply succession to international law, you use the term analogously which means there are
ways in which there is a similarity but one must not forget that we are not dealing with natural persons
but with states. Therefore, succession will have to do with such things such as territory, obligations and
rights created under treaties, membership in international organizations, property and debts of the
state.

The topic on state succession will be discussed on two separate online meetings.

I.

Is succession a live issue? Is it an issue in the contemporary world, in contemporary relations or not? Are
we dealing with a hypothetical and purely academic issue?

Here are some of the recent instances that have triggered the question of state succession:

1. When the USSR broke up and in its place independent republics that once formed part of the USSR,
asserted their independence as states, then we have the issue of state succession.

For example, what happens with the treaties that the USSR entered into with other states or with
international organizations? Do the successor republics for example Uzbekistan, Azerbaijan, Russia itself,
Ukraine – will all these be bound by their duty provisions by which the USSR entered into treaty?

That is a question of state succession. It shows you how current the issue is.

2. Since the former Federal Socialist Republic of Yugoslavia no longer exists, but in its place, Bosnia and
Herzegovina, Croatia, what is the relationship between the obligations of the former socialist republic of
Yugoslavia and these successor states?

3. Czechoslovakia has been divided into two states: the Czech Republic and Slovakia. Now, is the
property that Czechoslovakia acquired, property of the Czech Republic or Slovakia? That is a problem of
state succession.

These can be very important sources of conflicts and in fact cases involving state succession have
reached the International Court of Justice. Now, one of the most important cases recently passed upon
by the ICJ have to do with GABCIKOVO-NAGYMAROS which involves the building of a dam on the
damyun river and it involved the obligations of successor states vis-à-vis obligations incurred by their
predecessor states.

So, let us not be dismissive of this issue. On the other hand, let us also realize that while much of the law
on succession of states is customary law, there is as yet no codification of the laws on the succession of
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states. There are customary precepts, there are accepted principles of state succession under
international customary law but attempts but international law commission to codify the rules on
international state succession have not met with success and with unanimity. Since rules on
international customary law exist, as well as judicial pronouncements, judicial articulations of the rules
of customary international law, then state succession is not necessarily a gray area in international law.
Regrettably, many textbooks in international law do not cover the issue of state succession.

The unification of Germany– the question of succession also arises. For example, if West Germany which
was America-oriented entered into treaties, do those treaties also bind that part of Germany that was
formerly East Germany? Those are questions of state succession.

II.

When you deal with state succession, you deal with two issues:
The problem of substance and the problem of classification or the problem taxonomy

What do you mean by the problem of substance?

You mean the existence, content, and scope of particular prescriptions. For example, in if State A is a
party to a genocide treaty, or a treaty against torture and state B is a successor to state A, is State B
automatically bound by the provisions of the anti-genocide and anti-torture treaty? Why should we
single out genocide and torture? Because the obligation to punish, prosecute, and try genocide and
torture are obligations erga omnes – binding on all- and so unlike other obligations, they are obligations
that have a mandatory character. So the question arises: Is succession with all these treaties automatic?

The problem on substance looks to the existence and scope of the particular rules of international law.

2) The next issue is the problem of taxonomy or the problem of classification and that is what places
attention to the circumstances under which sets of interrelated norms operates. So we ask ourselves
under this question “what are the circumstances that give rise to this treaty?” Because the
circumstances themselves may dictate that the treaty will not bind the successor or, if the reverse, the
circumstances under which the treaty was entered into may suggest there strongly or may even lead to
the bigger conclusion that the successor state is bound.

I repeat: In dealing with succession, you have two issues: problems of substance – what is at stake- and
problems on taxonomy – what gave rise to these agreements.

III.

Let’s take a concrete case. What are the taxonomic or classification problems arising in regard in these
cases?
1.) Membership in international organizations. Yugoslavia was a member of several international
organizations. Are all the successor states also members?
For example, if Yugoslavia was a member of the UN, does it follow that Bosnia and Herzegovina, that
Macedonia, Croatia- are all members of the UN also? Or must each apply for membership in the UN?
2.) Entitlement to assets and responsibility for debts, who pays the debts of Yugoslavia?
3.) Mutual consent: How do we classify this? Is this a case of cessation, conquest?

There are two contrasting theories in respect to state succession:

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Let us say that State A is succeeded by State B and State C.

BTW, the following things can take place which give rise to succession issues:
-B and C were formerly parts of A which subsequently gained independence. So, there are now three
states: A, B, and C.
-It is also possible that State A ceases to exist and is dismembered into State B and State C in which case,
there are only two surviving entities State B and State C.

Whatever form of succession might occur, the two main theories are the:
A.) Tabula Rasa Theory or the Blank Slate Theory or
B.) The Theory of Automatic Succession

According to the Tabula Rasa Theory, States B and C should not be burdened by any of the implications
of State A nor should they be automatically entitled to the rights of State A. In other words, States B and
C start with a blank slate. They can enter into any agreement they want regardless of the agreements
earlier entered into by State A.

The opposite is the Automatic Succession Theory and under automatic succession theory, whatever
were the rights, duties, liabilities, and entitlements of State A, State B and State C as successors of A
automatically succeed to them.

These are very simplistic opposites but if you paid attention to the immediately preceding discussion, a
more nuanced approach should ask what are the circumstances under which the agreement was
entered into between State A and State X and Y and on the basis of the kind of classification, we will ask
ourselves, “is it reasonable for us to believe that States B and C are successors to such an agreement?”

I asked a while back when States B and C succeed State A, what are their rights and duties vis-à-vis the
rights and duties of State A. BUT there is something they cannot escape the moment that they are
states. All states by virtue of the fact of being members of the international community have duties.
They also have rights. For example, one rights enjoyed by a state is the right to its territorial integrity.
Nobody has any right interfering with or trespassing into the territory of another state. The moment a
state exists, you do not need a treaty to guarantee the state’s right to territorial integrity. That is a right
enjoyed by each state.

So regardless if you adopted the Tabula Rasa Theory or the Automatic Succession Theory, the new state
enjoys the right to territorial integrity.

Another: Every state has the duty of non-interference in the domestic affairs of another state. For
example, it is a violation of international law for one state to interfere with the elections of another
state. Whether or not a treaty is entered into by the emergent state that prohibits it from interfering in
the domestic affairs of another state, the emergent state is bound by that obligation. Why? Because it is
an obligation applicable to all states.

When we talk about state succession, we talk only about those rights and duties appurtenant to a state
by virtue of the agreements it has entered into and that are not covered by the rights and obligations
enjoyed or carried by all states. Every state by virtue of its statehood has rights and obligations and as
regards these rights and obligations, there is no issue of state succession because the moment a state
exists as a state, it has these rights and obligations.
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IV

State succession is also different from Government Succession. When the government of Cory Aquino
succeeded the government of Marcos extra-constitutionally, as the SC itself has ruled in the case of
Macapagal Arroyo vs. Estrada, then that is a case of government succession and the rules we are talking
about here in state succession do not apply. Why? Because there we had a change in government even
an extra-constitutional change in government but the Republic of the Philippines remained throughout
the process. It is possible for political reasons that one or the other state may refuse to recognize the
government of Cory Aquino but that does not mean that they withdrew the recognition of the Republic
of the Philippines.

Just as we distinguished between the recognition of a state and the recognition of a government, we
also distinguish between succession of states and succession of governments and at the present time we
are talking about succession of states.

Many times, instead of leaving issues very often of succession to the vagaries of general principles, the
consequences of state succession are set forth in a treaty.
At the time the Philippines was a colony of Spain, we were considered an external territory that is why
they made this difference between peninsulares and consulares. When the Spaniards lost to the
Americans in the battle of Manila Bay, and the Americans emerged triumphant, effectively ending
Spanish rule in the Philippines, America acquired sovereignty from Spain by virtue of the Treaty of Paris.
That is an example where you use a treaty to resolve some issues of succession.
So the principal question was exactly what was being passed from Spain to America and the length and
breadth of the archipelago was spelled out in the treaty. Unfortunately, the treaty left many questions
because one or the other outlined island of the Philippines was not included in the treaty, giving rise to
the question whether the RP which was the ultimate successor had sovereignty over these outlined
islands. That is what prompted the writers of the 1973 constitution to write “historic right.”

V.

Treaty relations between two states are unaffected by the emergence of a third state.

Let us say State A enters into a treaty with State B. State C emerges from State A. Can C be considered a
party to the treaty between A and B by a unilateral declaration?
NO. C cannot issue a unilateral declaration that makes it a member or a party to the bilateral treaty
between A and B.
What else is needed to allow C to be a party to the bilateral treaty between A and B?
What is needed is the acquiescence or the consent of A and B because [what if] A and B do not want a
third party to be part of the treaty between them.

In the case of a multilateral treaty, let us say that State C is an emergent state, and to make this more
concrete, let us say Timor-Leste and this is the World Trade Organization which is a result of a
multilateral treaty.
Can State C issue a unilateral declaration saying we now wish to be parties to the World Trade
Organization? Or be a member to the treaty that created the WTO?
No. The WTO must express its consent to the membership of C.
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Let us not get the wrong impression, however, my friends, that unilateral declarations have no legal
effect in international law. They have. That is what I’m very fearful about in respect to the unilateral
declarations made by the Republic of the Philippines with respect to the West Philippine Sea. In one
case that involved France testing nuclear weapons in the Pacific when it was sued before the ICJ, the ICJ
refused to proceed with a judgment against France on the basis that France had made a unilateral
declaration that it had already completed its test and that no more tests would be forthcoming. In that
case, the ICJ ruled that when a state makes a unilateral declaration like that, that creates legally
demandable expectations on the part of other states, such a state is bound by the unilateral declaration
that it is making.
My fear/theory is that our unilateral declarations of our government of this regard or this interest in the
aggressive Chinese expansionism in the West Philippine Sea may later be taken against us and may later
be construed as acquiescence on our part to the expansive claims made by the People’s Republic of
China in the West Philippine Sea.

Here we come to a very important principle: One matter on which international peace is attributed
territory because many wars have been fought over territory. If there is anything that international law
endeavors to avoid it is that countries go to war. One of the purposes of international law is precisely to
see to the peaceful, amicable resolution of conflicts and disagreements and it is a fact of history that
many wars have been fought over territory.

It is a principle of customary international law that territorial boundaries that are established by treaties
are binding even on emergent states. Territories whose boundaries are established by treaty or agreed
upon by treaty will not be changed by the fact that there is an emergent state that may not recognize
the treaty.
Successor states automatically succeed territorial treaties and agreements. That is where the theory of
automatic succession applies.

BTW, treaties in respect to the setting of territorial boundaries are in the same class as treaties setting
maritime boundaries. For example, if the exclusive economic zones of two contiguous states overlap
with each other, the law of the sea requires that the states with overlapping EEZs enter into a treaty to
set out the demarcation. That is the same case with states having overlapping continental shelves.
When a continental shelves overlap, then a treaty must be entered into setting out the demarcation of
the continental shelves.
BTW, the so called Benham Rise now known as the Philippine Rise is part of the Philippine Continental
Shelf and the relevant UN body has ruled that it is in fact part of the Philippine Continental Shelf. We will
take that up when we take up the Law of the Sea later on.

VI.
Moving Frontiers Rule
When a state acquires territory that is not itself a state, the treaties binding the predecessor state
ceases to be applicable to the acquired territory while the treaties binding to the successor state extend
to the acquired territory.

*Father drawing on board:

This is State X. This is State Y and for a long time the boundary between these two states is a matter of
dispute. Let us say that by agreement following a series of arbitral interventions, the boundary is set
here. So this part here that was formerly part of State Y is now part of State X. So, in regard to this
territory, this is the predecessors’ take. This is the successors’ take. The rule is that whatever treaties
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bind State Y and therefore that extended to this territory here no longer bind this territory because this
territory is now part of State X; but whatever treaties binding on X are now binding on the newly-
acquired territory.

The rule is whatever treaty bound Y no longer applies to this territory because this territory has been
transferred to X and whatever treaty binds X now extends to this newly-acquired territory.

A very good example is what happened in 1898 about the same time America acquired the Ph from
Spain. US attached Hawaii. It had a native queen but the US attached Hawaii. So many Americans
wondered how was it possible that America had a state outside the mainland of the US and lies in the
Pacific Ocean? That is where the moving Frontier Theory applies because the frontier of the US is no
longer determined by a continent but extends to Hawaii. Naturally, all the countries in between do not
lose their independence because of the fact that that is only meaning to say that the territory of the US
now includes the Hawaiian islands that are in the Pacific Ocean. Whatever treaties bound the entire US
now extend to Hawaii and if Hawaii ever entered into treaties by itself, these treaties no longer applied
because Hawaii has ceased to be an independent state and kingdom. It became a part of the United
States.

VI.

When a territory was formerly dependent on one state for its international relations and it gains
independence, the newly-independent state benefits from the Tabula Rasa theory, subject to the
exemption of territorial treaties.

All the way till the middle of the 20 th century, the Philippines was territory of the United States and the
US handled international relations for the Philippines. Then, the US “granted” Philippines independence.
Under the doctrine which we studied, the Philippine benefits from the Tabula rasa theory meaning that
the debts, obligations, as well as rights enjoyed by US by treaty do not apply to the Philippines do not
apply anymore and the Philippines is free to enter into such treaties as it deems beneficial to itself – s
which is why the US wishing to preserve its interests saw to it that such parity rights would be written
into our 1935 Constitution. For example, under the 1935 constitution, Americans had the same rights as
Filipinos in respect to the ownership of property in the Philippines for a given number of years. So there
was an in-depth mechanism by which the otherwise free wide latitude of the Philippines to enter into
agreements with other countries and to establish its own regime of laws was qualified by the US. But I
want to repeat that when a territory that formerly entrusted its foreign relations to another state or that
was part of another state, gains independence, this newly-independent state has the benefits of the
tabula rasa doctrine.

Let us understand the context of this. This was first of all meant for countries emerging from
decolonization and in order to allow them to survive and to flourish, the international community did
not want these newly-decolonized state burdened by obligations arising from their former status of ---- .

So a lot of international law is shaped by history and is also a deliberate attempt in putting or
maintaining equity into international relations.

ONLINE QUESTIONS entertained by Father:

I. Should Guam be a Philippine Territory?

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The Marianas was part of the island group that the Spaniards traversed coming to the Philippines but it
is my understanding that we never exercised sovereignty over Guam. It might be possible that the
Spanish colonial authority administered Guam and American colonial authority also administered Guam.
It remains as its overseas territory but there would be no legal basis for the Philippines exercising
authority over Guam.