SPECIAL ASSIGNMENT OF CRITICAL ESSAYS :

PUBLIC INTERNATIONAL LAW

SUBMITTED BY :

Simran Toppo
ID No. 016/2016/1454
Semester IV, B.A. L.L.B (Hons.)

HIDAYATULLAH NATIONAL LAW UNIVERSITY

ATAL NAGAR, CHHATTISGARH
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SACE – I

Question: “Political entities are not immutable. They are subject to change. New states appear
and old states disappear. Federations, mergers, dissolutions and secessions take place.
Through the concept of State Succession International Law has incorporated such events into
its general framework with the minimum of disruption and instability.”

Discuss, in the light of above-mentioned observation, the concept of state succession. Also
mention the kinds of state succession and different theories applicable to it in
contemporary world.

The coming together of various States to make the United States of America, the massive
Decolonization that took place after World War II, the disintegration of Ottoman Empire etc.,
are some examples of State Succession. These were not casual events, these were the one of the
most significant events in the political history of mankind. This shows the importance of State
Succession in the Public International Law. It has far reaching impacts and implications. Also,
not all kinds of State Successions are desirable, those that are peaceful and voluntary are
cherished and those that bring disruption and instability go against every ethos of International
Law.

DEFINITION OF STATE SUCCESSION

Oppenheim defines it as – “A succession of International persons occurs when one or more

international persons take the place of another international person, in consequence of certain
changes in the latter’s condition”.

Even better and clearer definition was laid down in The Vienna Convention on Succession of
States in Respect of Treaties of 1978. It defines State Succession, in its Article 2(1)(a) as –
“The replacement of one State by another in the responsibility for the international relations of
territory”.
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Article 2(12)(a) of the Vienna Convention on Succession of States in respect of State

Property, Archives and Debts of 1983, also defines State Succession on similar lines.

The idea was first introduces by Grotius. He explained it with a parallel example of a rule in
Roman Civil Law by which the heir becomes the successor of the deceased person and enters
into the latter’s shoes with Rights and Obligations connected with it.

Also, Brownlie, in his book ‘Principles of International Law’, has clarified that the definition
provided in the said conventions does not apply to ‘Mandate’ or ‘Trust’ territory.

The State which has replaced another is called the ‘Successor State’. And if it is vice versa, it is
called ‘Parent State’ or ‘Predecessor State’.

DIFFERENCE BETWEEN SUCCESSION OF STATE AND SUCCESSION OF

GOVERNMENT

These two are terms sound synonymous but are not the same. There is a difference between the
two.

In case of Succession of Government, the personality of the State does not change. All that
happens is the change in the organization of the government, some constitutional structures etc.
For e.g. There may be the replacement of Democracy by Dictatorship. This is an example of
Succession of Government.

For e.g. The recent takeover of Afghanistan by Taliban is also an example of succession of
government; The recent military coup in Myanmar etc.

As has already been mentioned, in case of Succession of State, there is a change in the
personality of the State itself. For e.g. recently, Barbados became a Republic and freed itself
fully from the British Empire. Other examples include - the Decolonization of India; the
formation of USA etc.

KINDS OF STATE SUCCESSION

There are many ways by which a State Succession can happen. For e.g. Secession, merger,
annexation, cession, decolonization etc. are some of the important ways.
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These all can be largely subdivided into various categories –

Universal Succession

On the basis of final

results

Partial Succession

KINDS OF STATE
SUCCESSION

Voluntary

On the basis of method

involved

By Revolt

1. Universal Succession

In this, the personality of the ‘parent’ or ‘predecessor’ State is completely destroyed and is
usurped by another international person.

- Ways

It may take place through – Voluntary merger, annexation or subjugation.

- Some Examples
(i) Annexation of Hanover by Prussia in 1866
(ii) Annexation of South Africa by Great Britain in 1901
(iii) Annexation of Korea by Japan in 1910
(iv) Unification of Germany as a result of the merger of the German Democratic Republic
with Federal Republic of Germany in 1990.
2. Partial Succession

In this, only a part of territory is separated from the ‘predecessor’ State and there is not the
complete change in the personality but only to the extent by which territory is transferred.
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- Ways

It may take place through – Secession or Cession.

Also, when the loss of territory is very substantial or if a territory loses essential portion of the
territory, it means the dissolution of end of State. For e.g. After the Secession of Slovania,
Macedonia and Croatia and of Bosnia and Herzegovina, later in 1992 from the Federation
Republic of Yugoslavia, it was considered that the personality of Yugoslavia has come to an
end.

- Some examples
(i) Secession of Estonia, Latvia and Lithuania from USSR in 1991
(ii) Secession of South Sudan from Sudan
(iii) Replacement of Czechoslovakia by Czech Republic and Slovak Republic on 1993 etc.

Also, as per Oppenheim, there are some more instances of Partial Succession such as – where a
full sovereign State loses part of its Independence by coming under Suzerainty, Protectorate or
Federation etc., and Vice Versa.

3. Voluntary State Succession

When the process of State Succession is peaceful and the disruption of legal continuity is
minimized by mutual adjustment. In this, there is nothing by force, there is mutual agreement
involved and is voluntary.

They make agreements with regard to Rights, obligations, benefits etc.

For e.g. When States like – Burma, Ceylon, Cyprus, Ghana, Jamaica, Jordan, Trinidad and
Tobago, Malaya, Nigeria, Sierra Leone etc. were becoming Sovereign States from their earlier
status of Dependant States after World War II, they concluded agreements with the United
Kingdom, which was their Colonizer.

4. State Succession by Revolt

This is an undesirable form of State Succession. In this, the State Succession occurs by Revolt
and there is no mutual co-ordination amongst the ‘predecessor’ and the ‘successor’ State. There
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is complete disruption of legal continuity. As a result, such Successor States easily become
vulnerable to chaos and anarchy.

For e.g. In case of Bangladesh; Pakistan Occupied Kashmir (POK) etc, this had happened.

THEORIES OF STATE SUCCESSION

Universal Succession
Theory

THEORIES OF
STATE Continuity Theory
SUCCESSION

Negative Theory

1. Universal Succession Theory

This is the earliest theory of State Succession. It treats the process of State Succession as the
complete substitution of one State by another and therefore holds the view that, the Successor
State enjoys all the rights and discharges all obligations of its predecessor.

Hence, the successor State is considered the direct heir of the predecessor State.

This theory flows from Grotius who made the analogy of Roman Law notion of succession in
the field of International Law. This was later adopted by Pufendorf and Vattel.

 Drawbacks of the Theory

This theory suffers from following setbacks –

a) According to Wheaton and Lawrence, the analogy of private law in the International law
domain is highly inaccurate. Because in the former there is an element of compulsory
representation which is not the case in the latter.
b) In practice, the State have never followed this theory.
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2. Continuity Theory

The defects of Universal Succession Theory led Max Huber to develop another theory called –
Continuity Theory. So, his theory was a modification of the Universal Succession Theory.

According to him, Succession is both Substitution + Continuation. Which means, the

Successor steps into the place of the predecessor and continues his right and obligations so far
the succession of private and public law agree.

Basically, first the State substitutes the personality then takes all the rights and obligations as a
bundle of jura. So, all the rights and obligations does pass to the successor State however, the
successor State does not discharge those obligations which are essentially political in nature.

 Drawbacks of the Theory

a) According to Wheaton, as opposed to the theory, the State that carries out Cession remains
in existence and is liable to other States for any obligations which it had undertaken
previously.
b) In practice, rights and obligations of the Predecessor State is not transferred unless there is a
treaty agreement in that regard.
c) What the State succeeds is not the Right but more in the nature of ex-gratia.

3. Negative Theory

As already mentioned, the above two theories suffer from serious defects and therefore, a theory
which is more in line with International Practice came up.

According to this theory, the successor state does not succeed to the personality of the
predecessor and the sovereignty of the Predecessor over the absorbed territory is abandoned.
And, the Successor State exercises jurisdiction over the territory not because there is transfer of
power from the predecessor state, but because, the Successor State has acquired the possibility
of expanding its sovereignty in the manner directed by its own will.

In other words, the successor State is not bound to respect the rights and obligations of the
State which has now ceased to exist. So, it is like a ‘Clean State’.
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Negative Theory is more in line with the contemporary practices than the rest two.

 Drawback of the Theory

(a) In practice, this does not happen. The Successor State is not completely free from
obligations. The International Law imposes some rights and obligations on the basis of
justice, equity and reasonableness.

LAW OF STATE SUCCESSION : BREATHING THE ELEMENT OF NATURAL LAW

IN THE PROCESS OF STATE SUCCESSION

As has already been mentioned, there are various ways through which State Succession can
happen – Cession, Secession, Union, Merger etc.

However, the process is not always peaceful. For e.g. the decolonization of India is one example
of peaceful successions. In our case, we did not experience disruption of legal continuity.
Everything was clearly enumerated in Indian Independence Act, 1947. On the other hand,
Austria-Hungary’s annexation of Bosnia and Herzegovina in 1908 is one example of rough
successions.

If the Succession is not peaceful, there is a disruption of legal continuity and it leads to Crisis.
Hence, to avoid such circumstances, certain rules have been evolved which are known as –
‘Laws of State Succession’. The basis of this is – Equity, Reason and Justice. Thus, this
breathes an element of Natural Justice in the process of State Succession.

In United States V. Percheman1, talking about Equity, the court said – “Justice and
Reasonableness are equally important in determining the rules of State succession”.

Also, in 1978, Convention on Succession in Respect of Treaties was formulated. And, in 1983,
the Vienna Convention on Succession of States in Respect of State Property, Archives and
Debts was formulated.

So in contemporary world, State Succession is largely governed by these two instruments.

1
U.S. Supreme Court, 7 Peters, 51 at p.86-87
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CONCLUSION

We have evolved a lot in the matter of State Succession. Even since, World War II, there has
been focus on peaceful process of State Succession. And for that, Laws of State Succession has
been evolved which ensures that there is no legal disruption. Out of the theories, the Negative
theory is most suited to the contemporary world.
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SACE – II

Question: “The Vienna Convention on the Law of Treaties (VCLT) was adopted and opened
for signature on May 23, 1969, and entered into force on January 27, 1980. In the fifty years
since the VCLT was opened for signature, it has become universally regarded as one of the
most important instruments of treaty law. It has been ratified by approx. 116 States and even
some non-ratifying States like the United States who recognize parts of the VCLT as a
restatement of customary international law.”

In the light of abovementioned observation, discuss the Legacy and Achievements of the
VCLT.

As per Article 38(1)(a) of the Statute of International Court of Justice, the Treaties get
primacy over all other sources of law such as – Customs, Judicial decisions etc. This makes
Treaties the most important sources of Law. That is why, it is very important to understand
the principles that govern the Treaties.

Treaties are referred to as by various names such as – Convention, Protocol, Accord, Aide
Memorie etc. The Vienna Convention on the Law of Treaties, at present is the most widely
recognized International Law, as a guiding light for the Treaties. It lays down principles,
processes etc., which are recognized by majority of States of the world.

TREATIES : MEANING AND KINDS

Before discussing the legacy and achievements of Vienna Convention of Law of Treaties, it is
important to discuss the basics of a Treaty.

 Meaning

McNair, in his book ‘Law of Treaties’ has defined Treaties as – “A written agreement by which
two or more States or International organizations create or intend to create a relation between
themselves operating within the sphere of International Law”.
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This definition is very comprehensive and in a way, covers all the aspects of Treaty.

One of the reasons why treaties are given so much importance is, because in majority of cases,
they are based upon the established customary practices. For e.g. The Vienna Convention on
Diplomatic Relations of 1961 was nothing but a reflection of established customary practices
relating to diplomatic and consular relations.

 Kinds of Treaties

Treaty made between two parties.

For e.g. "Treaty on Mutual Legal
Assistance in Criminal Matters
Bilateral / Bipartite between The Republic of India
and the Kingdom of Belgium"
(Signed recently in September,
2021)

This involves treaty made

between more than two States
but is limited in scope. The
KINDS OF limitation is generally with
Plurilateral respect to Region.
TREATIES
For e.g. Shanghai Cooperation
Organisation-Collective
Security Treaty Organisation

These are more general in scope

and are broader than the
Plurilateral Treaties. These
Multilateral consists of a large number of
States.
For e.g. UDHR; CEDAW; The
Outer Space Treaty (1967) etc.
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LEGACY OF VIENNA CONVENTION ON THE LAW OF TREATIES (1969)

In the International Law, this convention has become the primary guiding principle when it
comes to Treaties. More than 100 countries have ratified it and even some non-ratifying States
like the United States recognize parts of the VCLT as a restatement of customary international
law.

The legacy of this convention lies in its contents. It lays down principles, rules etc. The VCLT
has done following things –

 Provides a comprehensive definition of Treaty [Article 2(1)(a)]

It provides for following ingredients which are necessary for a treaty –

i) International agreement between States

ii) Written form
iii) Governed by International law
iv) Might be in a single instrument or two or more related instruments
v) Designation does not matter, its substance matters.
 Provides streamlined classification of Treaties

Instead of three classifications i.e. Bilateral, Plurilateral and Multilateral, it only talks about two
classifications – Bilateral and Multilateral. Thus, the confusion between Pluriteral and
Multilateral has been removed.

 Provides who can be Parties to a Treaty

Article 6 of the VCLT deals with this It provides that – “Every State possesses capacity to
conclude treaties”. Since, the word ‘State’ has neither been defined by the convention nor the
ingredients of ‘Statehood’ has been mentioned, it is generally interpreted to include all kinds of
States including – Colonies, Trust territories, Protectorates etc.

Apart from the States, even International Organizations like UN, can also be a party to treaties.
However, they are not governed by the VCLT.
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 Lays down Principles Necessary during Treaty Formation

This convention lays down a comprehensive procedure for treaty formation in the following
provisions –

i) Accrediting of persons by the Contracting States

This involves appointing of representatives of the State for negotiating, adopting or

authenticating the Treaty. This is governed by Article 7 of the convention.

ii) Negotiation and Adoption of the text

As per Article 9(2) of the convention, this happens through the vote of two-thirds of the
States present and voting unless decided otherwise by the Parties.

iii) Mode of Consent by the States

The convention also lays down the modes through which a State can give its consent –

a) By Signature – Article 12(2)(a)

b) By Exchange of Instruments – Article 13
For e.g. UK and Germany concluded an Agreement on Limitation and Naval
Armaments (1935) through this mode.
c) By Ratification
As per Article 2(1)(b) of the Convention – “Ratification is an international act whereby
a State establishes on the international plane its consent to be bound by the treaty”.
d) By Accession
It has been recognized under Article 15.
As per Article 2(1)(b) of the Convention – “Accession is a traditional method by which a
State may, in certain circumstances, become a party to a treaty of which it is not a
signatory”.
It can be done as per the provisions of the treaty and if nothing has been laid down, it can
be done only by the consent of all the States.
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iv) Entry into Force

As per Article 24 of the Convention – “a treaty enters into force in such a manner and upon
such date as it may provide or as the negotiating States may agree”.

v) Registration and Publication

As per Article 80(1) of the Convention – “the treaties, after their entry into force, shall be
transmitted to the Secretariat of the UN for registration or filing and recording and for
publication”.

However, registration or non-registration of a treaty does not make any difference upon the
validity of a treaty. It is just to regulate the relationship between UN and the treaty makig
parties with respect to the Treaty. This was affirmed in Qatar V. Bahrain.

 Affirms Core Principles of International Law

This convention recognizes the core principles of International Law which relate to treaties.
These principles have been in existence since centuries. These are as follows –

a) Pacta Sunt Servanda

This is the most fundamental principle when it comes to treaties and it states that – “States are
bound to fulfill in good faith the obligations assumed by them under treaties”. This principle
finds place in Article 13 of the Draft Declaration on Rights and Duties of the States which
was prepared by the International Law Commission. Article 2 Paragraph 2 of UN Charter
also recognizes this. And was also affirmed by the ICJ in Australia V. France2 also.

Coming to Vienna Convention, this is recognized under its Preamble as well as Article 26.

b) Reservations

2
ICJ Reports (1974) p. 268
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This is comprehensively dealt under Vienna Convention.

Article 2(1)(d) of the convention defines Reservation as – “A unilateral statement, however

phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to
a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the
treaty in their application to that State”.

Thus, it is upon the State how much it wishes to bind itself by the treaty. However, Vienna
Convention also provides exception to this Rule. Article 19 states that reservation cannot
happen is –

- It is prohibited by the treaty

- Treaty provides for reservation only on specific subjects and does not include the reservation
in question
- If reservation defeats the whole object and purpose of the treaty.
c) Pacta Tetris Nec Nocent Nec Prosunt

As per this principle, a treaty is binding only to the contracting parties. This rule is recognized
under Article 34 of the Vienna Convention.

Where a treaty
provides for Article 35 of the
obligations for Convention
Third States
Where a treaty provides Rights
for Third States
Article 36 of the
Exception To This For e.g. Rights of Third Convention
Principle Provided Parties over Suez Canal and
Under The Vienna Kiel Canal
Convention Itself
When a Treaty Creates International
Custom
For e.g. The Geneva Conventions Article 38 of the
of 1949 can be applied to non-parties Convention
as well because it has become a
customary international practice.
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d) Jus Cogens

These are also known as ‘preemptory norms’ or ‘compelling law’. This refers to those norms
from which no derogation is permissible by way of agreements. For e.g. for some countries, it
may be ‘Sovereignty’; for some, it may be ‘economic independence’ etc.

Under Vienna Convention, this is recognized under Article 53 and 64.

e) Rebus Sic Stantibus

As per this principle, treaty may be terminated if there occurs a fundamental change in the
circumstances under which it was concluded. This is also called ‘Clasula’. Under Civil Law, a
similar principle is the ‘Doctrine of Frustration of Contract’.

This is recognized under Article 62 of the Vienna Convention.

This is useful specifically during termination of treaty. For e.g. in denunciating Sino-Belgian
Treaty, China invoked changes of circumstances to terminate the sixty year old treaty.

 Provides Grounds for Invalidity of Treaties

This part is very important. Article 46-53 provide various grounds for the invalidity of Treaty.
These are as follows –
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Lack of Proper
Authority of the Error may relate to a fact or
Representatives situation which the State
(Article 47) assumed to be existing during
formulation of the Treaty and
formes an essential basis of the
Error (Article 48) consent of the parties.
For e.g. Border Treaties are
entirely based on the facts and
Fraud may be rendered invalid in case
(Article 49) of error.

GROUNDS FOR
THE INVALIDITY Corruption of the
OF TREATIES Representatives
UNDER THE (Article 50)
VIENNA
CONVENTION ON Coercion of a
THE LAW OF Representative
TREATIES (Article 51)
This clause is very
important and is in
Coercion of a
conformity with the
State (Article 52)
principle of
Sovereignty.

That means, if the Treaties are

in conflict with general
Jus Cogens principles of International
(Article 53) Law. For e.g. States cannot
make a treaty promoting
Genocide.

Also, except for the grounds mentioned in Article 51, 52 and 53, all other grounds are voidable
not void.
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 Provides Grounds for Termination of Treaties

Termination of treaties has two meanings –

Of the Treaty as a whole after the withdrawal

of a State (In case of Bilateral Treaties)

Withdrawal of a State from the Treaty

(In case of Multilateral Treaties)
In this, withdrawal does not lead to Termination of the whole treaty
and hence, the correct term is ‘Withdrawal of a State’

The Vienna Convention recognizes both the situations. Section 3 of Part V of the convention
lays down the following grounds –
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By the consent of the

parties [Article
54(b)]
For this, a n express or implied
condition must be enumerated
in the Treaty. Also, Article 56
By Denunciation
Para 2 provides that at least 12
(Article 56)
months notice of its intention
must be given to the parties to
denounce or withdraw.

This happens if all parties

By concluding
conclude a later treaty
another Treaty
relating to the same subject
[Article 59(1)]
matter.

The Breach must be material

GROUNDS By Material Breach
or of the essential part of the
PROVIDED FOR (Article 60)
treaty.
TERMINATION
OF TREATIES
UNDER SECTION Some of the examples of
3 PART V OF THE impossibility are - Complete
CONVENTION Impossibility of
Disappearance of the party
Performance (Article
to the treaty through State
61)
Succession; War between the
parties etc.

According to the For e.g. If the treaty itself

Provisions of the has provided for a certain
Treaty [Article 54(a)] fixed period for a treaty.

If a new norm has emerged

By emergence of Jus in the International Law and
Cogens (Article 64) existing treaty is in conflict
with it.

Fundamental Change
of Circumstances
(Article 62) [Rebus
Sic Stantibus]
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 Provides Procedure for Invalidating or Terminating a Treaty

It is provided under Article 65 to 68.

Article 65 : It states that a party has to notify the other parties of its intention to terminate the
treaty.

For this, making statements in the Parliament or in the Press is not enough. It must be made in
writing through a proper instrument. It must be signed either by the Head of the State of the
Head of the Government, or Minister of Foreign Affairs.

The convention also provides that if other parties to the treaty want to raise an objection, they
can do so within 3 months of the receipt of notice.

ACHIEVEMENTS OF VIENNA CONVENTION ON THE LAW OF TREATIES (1969)

The list of achievements of Vienna Convention is long. It is one of the most successful treaties
in the arena of Public International Law. Its achievement can be witnessed from the following
things –

a) Almost all the countries of the world have ratified it

Approximately 116 States have ratified it. This is the biggest achievement of this treaty and it
proves that its contents have become established customary principles in Public International
Law.

b) Even non-ratifying States observe the principles laid down by it

For e.g. USA

c) International Court of Justice have applied the rules laid down in the treaty in various
decisions

For e.g. –
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I. In Temple Preah Vihear Case, talking about Article 48 of the Convention (Error as
a ground of invalidity), the ICJ said – “It is an established rule of law that the plea of
error cannot be allowed as an element vitiating consent, if the party advancing it
contributed by its own conduct to the error, or could have avoided it, or if the
circumstances were such as to put that party on notice of a possible error”.
II. In Electric Company of Sofia Case3, talking about Article 59 (concluding another
treaty as ground for termination), Justice Anzilotti of ICJ said – “..There was no
express abrogation. But it is generally agreed that, beside express abrogation, there
is also tacit abrogation resulting from the fact that the new provisions are
incompatible with the provisions, or that the whole matter which formed the subject
of these latter is henceforth governed by the new provisions”.
d) Application of the principles laid down in the Convention in practical situations

For e.g. in denunciating Sino-Belgian Treaty, China invoked changes of circumstances to

terminate the sixty year old treaty. This is a principle enumerated in Article 62 of the
convention.

e) Without this convention, the arena of Treaty law was unfair and unjust

For e.g. the infamous Treaty of Versailles (which was signed after World War I) was unjust,
unfair and unreasonable and it was against core principles of International. Had this treaty
existed at that point of time, we would not have witnessed such a bizarre treaty.

CONCLUSION

Hence, we can very well assess the significance of this Treaty. It is one of the most significant
treaties in the International Law because it lays down principles for treaties itself. Treaties are the
most important source of International Law. Without these principles, there would chaos all
around.

3
PCIJ Series A/B, No. 77, p. 92
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REFERENCES

 Textbook
1. DR. H.O. AGARWAL, INTERNATIONAL LAW AND HUMAN RIGHTS, (CENTRAL
LAW PUBLICATIONS 2017

 Research Paper
1. Patrick Dumberry, State Succession to Bilateral Treaties : A Few Observations on the
Incoherent and Unjustifiable Solution Adopted for Secession and Dissolution of States under
the 1978 Vienna Convention, LEIDEN JOURNAL OF INTERNATIONAL LAW, pp. 13-30,
28 (2015)
https://www.ilsa.org/Jessup/Jessup2020/Basic%20Materials/SSRN-id3126523.pdf

 Article
1. Disha Mohanty, State Succession under International Law, IPLEADERS (December 1, 2021,
8:45pm)

https://blog.ipleaders.in/state-succession/