CHAPTER 3 STATE SUCCESSION
| Jurisdiction | United States |
(Feb 1995)
STATE SUCCESSION
Herbert Smith
London, England
A. THE CONTEXT
Birth, like death, is a traumatic experience, a truly once in a lifetime event. That is as true for states as it is for us — whether we're the observers or the central characters.
As in most families, so in the community of nations — births and deaths don't occur every day, or even every year. Sometimes you can tell they're going to happen (decolonization in the 1960s) — occasionally, they're even planned (the absorption of East Germany into West Germany). And, of course, there's always one or two that catch everyone unawares. The August 1991 putsch that triggered the break-up of the Soviet Union falls into the latter category. Events unfolded at frightening speed and for a time no-one was sure whether the biggest of the new arrivals, and its smaller siblings, would survive. So far, they have.
The break-up of the USSR brings sharply into focus the acute political sensitivity which surrounds such events. The USSR — a superpower, a nuclear power a Communist state, a colossus with no meaningful political structure and a decayed economic system. How does the family of nations cope with its disintegration? What are the shifts and plays of light in the developing political systems of the new republics? How should we behave towards them? And how should we expect them to behave towards us?
International law, you would think, would have a ready answer. Not so. Issues of state succession are of high political sensitivity. There are often long periods during which no state is born or dies. There may be periods of significant activity (the emergence of the Latin American states in the 19th century and the decolonization process in the 1960s).
Each birth and death, the political context in which it occurs, the changing membership of the family of nations over time — all these factors have interacted to create a situation where there are mutually exclusive theories and controversial practices.
That is not to say that state succession has been absent from the international agenda. Far from it. The topic was identified for codification by the International Law Commission at its first seminar in 1949. A protracted, and still incomplete, exercise in attempted codification followed. The result was two Conventions:-
• the 1978 Vienna Convention on Succession of States in respect of Treaties; and
• the 1983 Vienna Convention on Succession of States in respect of State Property, Archives and Debts.
Together these two Conventions represent a remarkable effort but they are, as I have said, an incomplete code on state succession. Indeed, such is the state of international law in this area that the two Conventions are commonly seen to be not merely an attempt at codification, but also a concerted effort at progressive development of the whole topic. For that they have been both applauded and criticised. They are regularly described (with hindsight, of course) as having been too heavily influenced by the
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then latest clutch of new states' births — in that they concentrated too much on the succession of states emerging from the decolonization process.
Matters not yet addressed by the International Law Commission include:-
• membership of international organisations;
• acquired rights and the obligations contracted by private persons with the predecessor state; and
• legal relationships between private persons created under the legal order of the predecessor state.
It speaks volumes of the lack of certainty, and lack of agreement, that neither of the two Conventions I have mentioned is yet in force and there is no prospect of them being ratified by the requisite number of states in the near future to bring them into force. That said, they are not entirely without influence: to the extent they are considered to encapsulate an accepted norm of international law, they are referred to and looked upon with some authority.
What can be said with certainty, then, given the difficulties of political sensitivity and uncertain law I've mentioned? This. The international order seeks to promote stability and continuity in relationships. That objective is reflected in the preambles to the two Conventions I've mentioned and articulates the self-interest which the international community has in promoting certainty among its members. That self-interest manifests itself in the myriad international organisations and arrangements which our first speaker talked about — and which seek to introduce a substantial element of predictability into the inherently uncertain international arena.
Self-interest also drives every successor state. Although the circumstances of succession are, in a political sense, unique in every case, a successor state which disregards the accepted norms of international behaviour can all too easily be characterised as a pariah — an outcast. Importantly this is not just in the political sphere but — critically — in the international financial community, which will commonly have far greater practical leverage over successor states' behaviour than the most articulate of chest-beating politicians.
Against this background I'm going to:-
• look at the break-up of the Soviet Union;
• highlight some of the difficulties as far as the law of state succession is concerned; and
• talk about a number of areas where difficulties are being experienced or may be expected, in the context of the various forms which state succession can take.
My topic is closely linked with that of border disputes, about which we have already heard and, though I will try and avoid overlap, I will refer to one or two border issues in the context of state succession.
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B. THE STORY SO FAR
A great deal of ink has been spilled on the question of whether the USSR continues to exist, in the guise of Russia — the opposite of state succession. Rein Mullerson, in a number of papers, argues that Russia in law is the successor state of the USSR. Others, such as Dr. Schweisfurth, argue strongly...
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