Title of the Research paper:- Critical Analysis of the State and State Succession.

Abstract:-

The concept of State, Statehood and State succession are intertwined and holds a crucial significance in the realm of international law. Before the 20th century, the concept of recognized sovereign states was not as clearly defined as it is today, and the number of entities considered as “recognized sovereign states” varied significantly over time due to factors such as changing borders, conquests, and shifting political alliances, but as per the latest update in January 2022, there are 195 recognized sovereign states in the world. This paper provides a comprehensive analysis of Statehood and the attributes cited by the Article 1 of Montevideo Convention on the Rights and Duties of States of 1933. The paper explores the various dimensions of statehood, including recognition criteria, territorial integrity, and government effectiveness. Additionally, it also examines the intricate dynamics of State Succession include the nature, types of State Succession encompassing consequences of succession such as continuity of treaties, succession to state property and debts, and the rights of individuals affected by succession. Moreover, it highlights the complexities and challenges faced during the process of establishing and developing the “Vienna Convention on the Succession of States”. Some notable examples of states that have emerged through state succession include:

  1. Singapore: Emerged as an independent state through state succession from Malaysia in 1965.
  2. East Timor (Timor-Leste): Gained independence through state succession from Indonesia in 2002 after a period of United Nations administration.
  3. Montenegro: Declared independence from Serbia through state succession in 2006 following a referendum.
  4. South Sudan: Became an independent state through state succession from Sudan in 2011 after a referendum.

 By offering insights into the complexities of statehood and state succession, this paper contributes to a deeper understanding of the legal and political dynamics shaping the contemporary international order.

Keywords:- State, Statehood, Montevideo Convention on the Rights and Duties of States of 1933, State Succession, Vienna Convention on the Succession of States, Types of State Succession, Consequences ofState Succession.

Introduction:-

It is difficult to define the term “State” as it may have different meanings. But in international law, a State may be referred to as a society of men occupying a territory, the members of which are bound by the tie of common subjection to a government and which have the capacity to enter into relations with other entities. [1]

Although States are not the only entities or subjects of international law and have international legal standing, they are the primary subjects of international law and possess the greatest range of rights and obligations. The State as a subject of international law was put forth by the realistic theory as well as the functional theory of the subject of international law.

Statehood and State Succession are fundamental concepts in international law that govern the recognition of entities as sovereign States and the legal consequences of changes in Statehood, which can be seen through State Succession. Understanding these concepts is essential for navigating the complex legal terrain of international relations. And therefore, to become familiar with these, let’s dive into the information below.

Research methodology:-

This research project is descriptive in nature. This research paper utilizes an extensive literature review methodology to compile and evaluate existing papers, publications, and articles about artificial intelligence in education. Research database, teaching journals, journal articles, and trustworthy web sources are all included in the study. The matter from these sources have been complied and analysed to understand the concept.

Review of Literature:-

This literature review provides a brief examination of statehood and state succession within the framework of international law. It delves into the foundational principles outlined in the Montevideo Convention of 1933, elucidating the criteria for statehood, and subsequently explores the legal framework established by the Vienna Convention of 1978 for addressing state succession issues. By categorizing types of succession and analyzing their consequences, and modes of state succession including the continuity of rights and obligations and questions of state responsibility, this review offers insights into the complexities and significance of these concepts in contemporary global governance.

STATEHOOD:-

The main addressors of international law are the sovereign States. States, as discussed above, may have different meanings. According to the point of view of international law, a State can be defined as a society of men occupying a territory, the members of which are bound by the tie of common subjection to a government and which have the capacity to enter into relations with other entities. [2]

It would not be wrong to say that the central theme of international law is the State. And thus, according to jurists of realistic theory, nation-States are the only subject of international law and are the only entities for whose conduct international law came into existence.

 D.J. Lathem Brown Stated in his book “Public International Law” that international law is a set of laws and rules for the governing of States and that international law deals with the rights and obligations of the State.

According to Prof. Laski, “State is a territorial society divided into government and subjects and claiming within the allotted physical area supremacy over all other institutions.”

 Statehood is the condition of being a country that has its own government. The Montevideo Conference laid down the conditions and criteria of Statehood in order to acquire recognition under international law. According to Article 1 of the key, a State is defined as a person and has the following attributes that a State should possess in order to acquire the status of a State under international law:

  1. Permanent population:- The term “population” means people. People are an aggregate of individuals who live together as a community, though they may belong to different races, creeds, or cultures. A territory where people have not settled down, that is, where there exists a haphazard aggregation of individuals, cannot be regarded as a State. And thus, a State having a permanent population is one of the qualifications Stated by the Montevideo Convention on the Rights and Duties of States of 1933.
  • Territory:- A State must have a territory, irrespective of its size; it can be huge or small. There is no specified limit on territory. Some States are called micro- or mini-States but are still regarded as States and can be members of the UN if they satisfy the conditions specified under Article 4 of the UN Charter. It is not essential for a State to have a “defined” territory as given by the Montevideo Convention on the Rights and Duties of States of 1933. For example, Israel is a State, but it does not have a defined territory. In Deutsche Continental Gas Cesselshaft vs. Polish State, the Tribunal held that Statehood does not depend completely on a State having rigidly defined and fixed borders or territory, but it is always favourable for a State to have fixed boundaries in order to avoid complications.
  • Government:- There has to be a government in that particular State. According to the Montevideo Convention on the Rights and Duties of States, the people and the territory must be governed by the government. A State that does not have a government shall not be regarded as a State.

There can be different types of government such as:-

  1. De jure government.
  2. De facto government.
  3. Military government.
  4. Govermnet-in-exile.

A State having any of the above mentioned government can be recognized as the State.

In Afghanistan, Taliban regime emerged in 1994 and in a very short period of time it took Kabul (the capital of Afghanistan) under its control. Currently, 90% of Afghanistan is under Taliban. But still Afghanistan is recognized by the international community as a State and is the member of UN.

  • Capacity to enter into relations with other State:- The State should have the capacity to enter into relations with other States. This is the last qualification mentioned by the Montevideo Convention on the Rights and Duties of States. It is significant to note that even a small principality may be regarded as the State provided the criteria of Statehood are satisfied.

Hence, the entities (States) fulfilling the above mentioned attributes of Statehood shall get the status of the State and shall be recognised as the international person. To the contrary if any entity fulfils such attributes by breaching fundamental norms of international legal order, its Statehood may be denied by the UN.

However, the attributes of Statehood and membership of UN are not linked to each other. A State satisfying all the attributes of Statehood may not be the member of UN and visa versa. For example: Conversely and Switzerland satisfied all the conditions of Statehood, were recognized as States but were not the members of UN until 2002. Also Ukraine and Byelorussia were the members of UN since 1945 even when they were the part of the Soviet Union until 1991.

STATE SUCCESSION:-

I] Meaning:-

State Succession is an imperative concept under international law. After World War II State Succession has become a significant topic as more than 100 States emerged after the end of decolonization.

State Succession in simple words can be asserted as substitution of one State by another. Thus, when one State is completely or partly by replaced or conquered or separated from and by another State it is known as State Succession. Eg. India and Pakistan, separation of USSR.

And hence, it signifies transfer if rights and obligation of one State to another in consequences of territorial change. According to Oppenheim– a Succession of international person occurs when one or more international persons take the place of another international person, in consequences of certain changes in the latter’s condition.

The idea of State Succession was introduced by Grotius. He was inspired by the Rules of Roman Civil Law, in which after the death of a person his rights and obligations are transferred to his successors. This is the same scenario with the States.

State Succession incorporates two Parties:-

  1. The Successor State:- The State which has replaced another State or has conquered the other State.
  2. The predecessor State or parent State :- The State which has been replaced by another State.

II] Background:-

Before the 20th century, the political system was completely different. Those were the days of kings and kingdoms, and annexation was a very common method to expand the empire. There were no treaties and laws. This led to frequent changes in law, inconvenience, problems related to nationality, discrimination, and frequent modifications in political and economic agendas.

As we survive in a civilized society, organized rules are to be implemented to regulate the political and legal situations between the States.

III] Modes of State Succession:-[3]

  1. Annexation:- When one State conquer another and is now in possession is that State.  Eg. Tibet was an independent existing State. China annexed it, currently Tibet is under Chinese possession.
  2. Merger:- A situation where two different States merges to be one single State. Eg. After World War II Germany was divided into two different East Germany and West Germany. In 1990 both the States united and became unified Germany.
  3. Split:- When a part of a State detaches from the parent State and forms a new State. Eg. Pakistan became a separate State from the parent State India.
  4. Dissolution of the parent State:- When the parent State completely losses it’s identity and new States are  formed from it. Best example is dissolution of USSR.
  5. Decolonization:- When one State partially or completely regains its control over its territory which earlier was in hands of other State. Eg. Decolonization of India from British rule and India emerged as a State.

IV] International Law Commission:-

De Visschar was the first to acknowledge the need to put forth the rules of State Succession and also requested the League of Nations’s Committee of Experts for the Progressive Codification of International Law set up in 1924 to include the rules for State Succession in the list of topics for codification, but his request went in vain. However, the United Nations acknowledged the problem as new States emerged after World War II. The Commission in 1962, at its fourteenth session, decided to include this topic in its priority list on the recommendation of the General Assembly. In 1967, the Commission decided to divide the topic into three separate headings, which were: 1) Succession in Respect of Treaties. 2) Succession in respect of rights and duties. 3) Succession in respect of membership in international organizations

A convention was adopted on August 22, 1978, on ‘Succession in Respect of Treaties’. Later, on April 7, 1983, the Vienna Convention on the Succession of States in respect of State property, archives, and debts was concluded.

V ] Types of State Succession:-

According to Gerhard von Glahn following are the types of State Succession:-

  1. Universal Succession:- Universal Succession is also referred as Total Succession. A situation where the parent State completely looses its identity and new State takes up the identity of it, this is known as Universal Succession. Universal Succession can take place by:
  2. Merger:- Two or more States unite to become one.
  3. Annexation:- One State conquers another State.
  4. Colonization:- One State controls the another State.

Examples of Universal Succession:- Dissolution of USSR, ,fusion of Germany, British rule over India.

  • Partial Succession:- When a part of State splits or separates from the parent State and becomes and independent State is known as partial Succession. It may be the result of civil war or liberalization war. The existing State continues with its rights and obligations while the new formed State carries no rights and obligations of the parent State.

Example of Partial Succession:- Separation of Pakistan from India and separation of Bangladesh from Pakistan are two best examples of Partial Succession.

VI] State Succession- by voluntary and by revolt:-

When the replacement of one State by another takes place peacefully and the disruption of legal continuity is minimized by mutual adjustment, this can be done by entering into a ‘devolution agreement’ between the predecessor State and the successor State. Under the agreement, the latter agrees that the rights and obligations of the former shall devolve upon it. After World War II, these types of agreements were frequently entered into by the States. Such kinds of agreements have been concluded between New Zealand and Western Samoa, Italy and Somalia, etc. But where the change occurs through revolt, where the State Succession takes place due to internal tensions, by war, or through armed conflict, which leads to destruction by the successor State to the predecessor State, as in the case of Bangladesh, the gap between the predecessor State and the successor State was not bridged, and the result is transferred territories, which quickly become the prey of chaos and anarchy.

VII] Consequences of State Succession:-

  1. Treaties:-  The successor State is bound by the treaties related to the border of the predecessor State can cannot be altered. While the other treaties entered by the predecessor State are not binding to the successor State.
  2. Membership of International Organizations:-  While dealing with the question of the membership of newly formed States, it was decided that the successor State have to newly apply for the membership. A good example when Pakistan separated from India the UN said that they have to reply for the membership.
  3. Debts:-  The debts of the predecessor State are to be paid by the successor State and the reason is very simple if the successor State is enjoying the benefits of the loan of predecessor State, it is it’s moral obligation to repay the debts and loans of predecessor State.
  4. Public property:-  In Vienna Convention 1983 it is mentioned that the successor State takes over all the public property of the predecessor State.
  5. Tort:-  The successor State is not liable for the torts committed by the predecessor State.

VIII] Suggestions:-

Statehood and State Succession are the topics that present an opportunity to conduct case studies on significant events such as the dissolution of the Soviet Union or the breakup of Yugoslavia. By investigating these case studies, I was able to gain deeper insights into the complexities of State formation, border disputes, and ethnic conflicts. Furthermore, I could explore contemporary challenges related to Statehood and State Succession, such as ongoing territorial disputes, secessionist movements, and the evolving role of international organizations in managing these issues. Overall, delving into the topic of Statehood and State Succession promises to be both intellectually stimulating and academically enriching, offering ample scope for original research and critical analysis.

IX] Conclusion:-

Statehood and State Succession are the pivotal concepts of international law. Given the current status of the law with regard to the idea of State Succession and Statehood, it can be very well inferred that the law needs a lot more evolution and clarity. Even though lately it has been seen that there has been some consensus on certain levels and that Succession doesn’t necessarily lead to disruption in all legal practices and methods, there is a lot more work that needs to be done in this field.[4]

Name:- Sakshi Powar.

College name:- Shahaji Law College, Kolhapur, Maharastra.


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State Succession under International Law, The Lawbhoomi, (Jun 7, 2021) https://lawbhoomi.com/state-succession-under-international-law/.

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Sunil Gujar, Concept of State Recognition under International Law, Legal Service, https://www.legalserviceindia.com/legal/article-4142-concept-of-State-recognition-under-international-law.html.

Vienna Convention on Succession of States in respect of State Property, Archives and Debts 1983, Council of Europe, https://legal.un.org/ilc/texts/instruments/english/conventions/3_3_1983.pdf

Pankhuri Anand, Recognition of State under International Law, Ipleaders, https://blog.ipleaders.in/recognition-State-international-law/

Dr. Agrawal, International law and Human rights (Twenty third edition 2020)

Disha Mohanty, State Succession under international law, Ipleaders (Feb 20, 2020), https://blog.ipleaders.in/State-Succession/#:~:text=Art%202(1)(b,the%20international%20relations%20of%20territory

State Succession under International Law, The Lawbhoomi, (Jun 7, 2021) https://lawbhoomi.com/state-succession-under-international-law/

International law – States, Sovereignty, treaties, Britannicahttps://www.britannica.com/topic/international-law/States-in-international-law

Sunil Gujar, Concept of State Recognition under International Law, Legal Service, https://www.legalserviceindia.com/legal/article-4142-concept-of-State-recognition-under-international-law.html.

Vienna Convention on Succession of States in respect of State Property, Archives and Debts 1983, Council of Europe, https://legal.un.org/ilc/texts/instruments/english/conventions/3_3_1983.pdf.

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State Succession under International Law, The Lawbhoomi, (Jun 7, 2021) https://lawbhoomi.com/state-succession-under-international-law/

International law – States, Sovereignty, treaties, Britannicahttps://www.britannica.com/topic/international-law/States-in-international-law

Sunil Gujar, Concept of State Recognition under International Law, Legal Service, https://www.legalserviceindia.com/legal/article-4142-concept-of-State-recognition-under-international-law.html

Vienna Convention on Succession of States in respect of State Property, Archives and Debts 1983, Council of Europe, https://legal.un.org/ilc/texts/instruments/english/conventions/3_3_1983.pdf

Pankhuri Anand, Recognition of State under International Law, Ipleaders, https://blog.ipleaders.in/recognition-State-international-law/

Dr. Agrawal, International law and Human rights (Twenty third edition 2020)