State Succession, Then and Now, With Special Reference to the Louisiana Purchase (1803)

• Author: C. Emanuelli
• Position: Full Professor, Faculty of Law, University of Ottawa
• Pages: 1277-1291

Page 1277

Full Professor, Faculty of Law, University of Ottawa.

Introduction

One of the basic distinctions between international law and domestic law involves the fact that States are the primary subjects of international law.¹ According to international law, the existence of a State depends on the presence of four elements:²

1. A defined territory;

2. A permanent population;

3. A government;

4. The capacity to enter into relations with other States.

   These elements are subject to change during the life of a State:

1. The territory of a State may increase or decrease in size over time;

2. The population of a State may increase or decrease in number;

3. The government may lose control over part of the territory of the State;

4. The capacity to enter into relations with other States may be reduced.

   Changes which affect the territory of a State give rise to so- called succession of States. The transfer of the territory known in 1803 as Louisiana, by France to the United States of America, illustrates both the concept of State succession, as well as some of the issues arising from it. With time, the rules governing State succession in international law have evolved. However, the solutions which were developed two hundred years ago to deal with most of the issues arising from the Louisiana purchase seem to be in line with current rules governing the transfer of a territory from one State to another.

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I The Concept Of State Succession

International law defines a succession of States as "the replacement of one State by another in the responsibility for the international relations of territory."³ More simply, State succession involves the transfer of a territory from one State (the predecessor State) to another State (the successor State).

As such, State succession may take different forms:

1. A State may break up and disappear giving way to the emergence of two or more new States (former USSR: 1991; Yugoslavia: 1991-1992; Czechoslovakia: 1993);

2. A portion of the territory of a State may secede or separate and become the seat of a new State (Pakistan from India: 1947; Bangladesh from Pakistan: 1971; Eritrea from Ethiopia: 1993);

3. A colony may become independent and give rise to a newly independent State (starting with Haiti in 1804);

4. Two or more States may merge to create a single new State (the merger of Syria and Egypt to form the United Arab Republic between 1958 and 1961);

5. A State may be taken over and assimilated by another State (absorption of the German Democratic Republic by the Federal Republic of Germany: 1990);

6. A portion of the territory of a State may be transferred from one State to another State by way of cession: such was the case in the purchase of Louisiana by the United States from France in 1803. As a form of State succession, the cession of a territory from one State to another was quite current at the time. It often accompanied the conclusion of a peace treaty between the predecessor State and the successor State.

In some cases, the predecessor State remains in existence, so that the succession is said to be partial: such was the case when France ceded Louisiana to the United States. In other cases, the predecessor State does not survive the succession, so that the succession is said to be total, as with the dissolution of the former USSR.

In any event, a change of regime, even as drastic as the shift from Tsarist Russia to the Soviet Union or from Saddam Hussein's Iraq to a democratic or a religious State, does not equate to a succession of Page 1279 States. Indeed, international law traditionally distinguishes between changes of regime, on one hand, and succession of States, on the other. Changes of regimes do not affect the continuity of States in which they occur.⁴ As a result, a change of regime will not, as a rule, affect the rights and obligations of the State in which the change takes place. So, Iraq will keep its seat at the UN and will remain bound by commitments made by the former regime.

On the other hand, regardless of the form it takes, State succession will in some way affect the rights and obligations of the States concerned (predecessor and successor States). It may also affect the rights and obligations of third parties. The extent to which the rights and obligations of States will be affected by State succession may vary with each situation since it depends on a number of factors: what is the nature of the rights and obligations at stake? (Treaty rights and obligations? Rights and obligations relating to public property and debts?); what form does the State succession take? (partial or total succession?); in what context does the succession of States occur? (colonial or non colonial case?); which legal approach should govern the issues arising from State succession?

II Theoretical Approaches To State Succession

From a theoretical standpoint, two doctrines must be distinguished:⁵

The doctrine of "universal succession" (also known as doctrine of continuity) provides that the rights and obligations of the predecessor State, relating to the territory transferred, are transmitted to the successor State. Thus, the successor State inherits the treaty rights and obligations of the predecessor State relating to the territory transferred. As well, the successor State inherits public property and debts belonging to the predecessor State relating to the territory transferred. Indeed, the "universal succession" doctrine provides that the successor State ensures the continuation of the predecessor State's sovereignty over the territory transferred.

The "clean slate" doctrine, by contrast, provides that the successor State substitutes its sovereignty over the territory Page 1280 transferred to that of the predecessor State instead of ensuring its continuation.⁶ Therefore, the successor State does not inherit the rights and obligations of the predecessor State with respect to the territory transferred.

In 1803, when Louisiana was ceded by France to the United States, the "universal succession" doctrine was believed to govern State succession. At the time, international law was still in gestation. Customs, based on the practice of States, were the main source of international law. However, the practice of States was difficult to identify because it was not recorded. Moreover, State practice was often incoherent. Only scholars, who sometimes had exercised diplomatic functions, were able to determine the existence of certain customs and to interpret them. Their interpretation was often inspired by Roman law concepts which were rediscovered during the Renaissance. Thus, the first doctrine to govern issues arising from State succession was the doctrine of universal succession. It was developed as early as the 17th century by some of the fathers of international law (Gentili, Grotius, Pufendorf) on the basis of the Roman law concept of inheritance in civil law.

The "clean slate" doctrine, on the other hand, was developed in the late 19th century under the influence of voluntarist theories which dominated international law during that period.⁷ According to such theories, sovereign States can only enjoy rights and incur obligations to which they consent. Therefore, the rights and obligations of the predecessor State relating to the territory transferred cannot be considered to automatically pass to the successor State.

Both the "universal succession" and the "clean slate" doctrines have been criticized by scholars.⁸ It has been argued, for instance, that neither doctrine "makes much sense with respect to cases of cession of territory"⁹ (for instance the transfer of Louisiana from France to the United States). Indeed, "[i]n such cases the 'successor' ... will neither begin life with a clean slate, nor will it succeed to the full range of rights and duties of the 'predecessor.'"¹⁰

As such, this statement is somewhat opaque. However, we believe, it can be explained on the basis of a distinction between "real" and "personal" rights relating to the territory transferred.¹¹This distinction is supported by State practice.

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III State Practice Relating To The Succession Of States

Examples of both the "universal succession" and the "clean slate" doctrines can be found in the practice of States. Thus, while the "universal succession" doctrine governed the emergence of Dominions, such as Canada,¹² as independent States, the "clean slate" doctrine was invoked by Israel.¹³ However, State practice rarely reflects either the "universal succession" doctrine or the "clean slate" doctrine in their entirety. In most cases of State succession, some rights and obligations relating to the territory transferred are transmitted from the predecessor State to the successor State, while others are not. Thus, following the absorption of the German Democratic Republic (GDR), the Federal Republic of Germany took over the property and debts of the GDR but refused to be bound by its treaties.

State practice also reveals that cases of State succession which may, at first glance, seem quite similar are sometimes dealt with according to different models. Thus, the break up of the Soviet Union was generally analyzed using the separation model: parts of the USSR separated from its core - Russia - which continued its existence with the support of the Commonwealth of Independent States (CIS).¹⁴ On the other hand, the break up of Yugoslavia was analyzed using the dissolution model: the former Yugoslavia had ceased to exist and...