Part 1 The subjects of international law, Ch.2 International persons, Changes in the Condition of States
Sir Robert Jennings qc, Sir Arthur Watts kcmg qc
Edited By: Robert Jennings, Arthur Watts KCMG QC
- States, formation, continuity, extinction
Hall, § 2 Hackworth, i, § 56 Fiore, i, §§ 321–32, and Code, §§ 124–46 Borchard § 84 Redslob, RI (Paris), 13 (1934), pp 445–83 Cansacchi, Comunicazioni e studi, 4 (1952), pp 25–97, and Hag R, 130 (1970), ii, pp 1–94 Marek, Identity and Continuity of States in Public International Law (1954) Kunz, AJ, 49 (1955), pp 68–76 McNair, Law of Treaties (1961), ch 37 Crawford, The Creation of States in International Law (1979) Meissner and Zieger (eds), Staatliche Kontinuität unter besonderer Berücksichtigung der Rechtslage Deutschands (1983).
States are exposed to change. There is a constant and gradual change in their citizens through deaths and births, emigration and immigration. There is a frequent change in those individuals who are Heads of States, and there is at times a change in the form of their governments, or in their dynasties if they are monarchies. Governmental authority may be temporarily disrupted or territorially restricted, as during a civil war1 or belligerent occupation. Their territories may increase or decrease. Nevertheless, in spite of such changes a state remains the same international person.2
International law is not, however, indifferent to these changes. Although strictly no notification to or formal recognition by foreign states is necessary in cases of a change in the headship of a state3 or in its entire dynasty or if a monarchy becomes a republic or vice versa, no official intercourse based on the change of situation is possible between the states refusing recognition and the state concerned. Although, further, a state can assume any title it likes, it cannot claim the privileges of rank connected with a title if foreign states refuse recognition. The continuity of a state as an international person notwithstanding changes of the kind mentioned may be illustrated by the history of France, which has over the centuries retained its identity although it acquired, lost and regained parts of its territory, changed its dynasty, was a kingdom, a republic, an empire, again a kingdom, again a republic, again an empire, and is now once more a References(p. 205) republic. All its international rights and duties as an international person continued in spite of these important changes. Even such loss of territory as occasions the reduction of a major power to a lesser status does not affect the state as an international person. This continuity of states as international persons despite changes of the kind referred to is reflected in such rules of international law as those which hold a state bound by treaties concluded under a previous regime,4 which hold it responsible for acts by a former government or Head of State,5 or which require it to honour the public debt of a predecessor regime.6 Similarly, a new regime is entitled to represent the state in international organisations of which it is a member,7 litigation against the state begun under one government continues after a new government comes to power,8 the previous regime’s References(p. 206) contracts bind its successor,9 and it is entitled to exercise proprietary rights over the state’s property.10
Some changes do, however, affect states as international persons.
(1) Two states which hitherto were separate international persons are affected in that character by entering into a real union1 since, while retaining their separate identities in many respects, through that change they appear thereafter together as one and the same international person.
(2) A partial loss of independence on the part of the state concerned may affect its character as an international person. Many restrictions may be imposed upon states without interfering with their independence proper,2 but certain restrictions may go so far as to have such an effect, with consequences for their character as international persons. Thus if a hitherto independent state comes under the protection of another state,3 its character as an international person is affected. Again, if several hitherto independent states enter into a federal state,4 they transfer a part of their sovereignty to the federal state and become thereby partially sovereign states, and may even cease to be international persons at all. Even entry into a customs union may in particular circumstances, and depending on the terms of the treaty engagements in question, be regarded as compromising a state’s independence.5
A state ceases to be an international person when it ceases to exist.1 In practice this may happen:
(a) when one state merges into another and becomes merely a part of it (as occurred when the Congo Free State merged in 1908 into Belgium, Korea in 1910 into Japan, and Montenegro into the Serb-Croat-Slovene State after the First World War), or when two or more states merge to form a single new state2 (as may happen upon the formation of a new federal References(p. 207) state,3 if all the member states of the federation cease to retain any elements of international personality). The absorption of Estonia, Latvia and Lithuania by the Soviet Union in 1940 was claimed by the latter to be a voluntary merger, but some states, including the United Kingdom and the United States, declined fully to recognise that those states form part of the Soviet Union.4 Austria’s absorption into Germany in 1938 was initially widely accepted as putting an end to Austria’s existence as a separate state, but was, after the outbreak of the Second World War, regarded as null and void, with Austria being regarded as continuing as a state;5
(b) when a state breaks up so that its whole territory henceforth comprises two or more new states.6 However, the question whether all the new territorial units are properly to be regarded as new states, or whether one of them constitutes a continuation, much diminished, of the original state is not always easy to answer, and raises complex issues as to the circumstances in which a state ceases to be the same state. Such problems have arisen, for example, over the dissolution of Austria-Hungary after the First World War,7 and after the defeat of Germany at the end of the Second World War;8
(d) formerly,9 when a state has been subjugated, ie annexed by the victorious state after conquest in war (as when the Orange Free State and the South African Republic were absorbed by Great Britain in 1901).
1 See § 67. See also Attorney-General of the Republic v Mustafa Ibrahim (1964), ILR, 48, p 6.
2 See Masinimport v Scottish Mechanical Light Industries Ltd, 1976, SLT 245; ILR, 74, p 559, involving both constitutional change and territorial variation. See also the view of the General Assembly’s Sixth Committee in 1947: ‘That, as a general rule, it is in conformity with legal principles to presume that a State which is a Member of the organization of the United Nations does not cease to be a Member simply because its constitution or its frontier have been subjected to changes, and that the extinction of the State as a legal personality recognized in the international order must be shown before its rights and obligations can be considered thereby to have ceased to exist.’ (UNYB (1947–48), p 40.) This view was expressed in the context of the emergence of Pakistan out of territory formerly constituting India: see also § 64, n 3.
As to Yugoslavia as a continuation of the Kingdom of Serbia see § 34, n 1, para 5; as to the position of Austria after 1918, and again during and after the Second World War, see § 55, n 36, and § 59, n 7; and as to Germany after the same war, see § 59, n 8.
3 See § 43.
4 See 47, n 3, and § 623. See also Shehadeh v Commissioner of Prisons, Jerusalem, AD, 14 (1947), No 16; Re Nepogodin’s Estate (1955), AJ, 50 (1956), p 141; M/V Francesco Corsi v M/S Gorakhram Gokalchand (1958), ILR, 31, p 20; Masinimport v Scottish Mechanical Light Industries Ltd (1976), SLT, 245; ILR, 74, p 559; BY, 48 (1976–77), p 333; US Diplomatic Staff in Teheran Case, ICJ Rep (1980), p 3 (in which the revolution in Iran resulting in the Shah being deposed did not affect Iran’s continuing obligations under treaties concluded before the revolution).
5 For this reason a state is responsible for all acts committed by a former Head of State, although such Head of State may have attained his position through revolution. See § 43 and The Republic of Peru v Dreyfus Brothers (1888) 38 Ch D 348. It is believed that this responsibility exists, whether or not the former Head of State was recognised by the state demanding redress.
See also Henke Claim, ILR, 26 (1958–II), p 276; Eis Claim (1959), ILR, 30, p 116. Cf the Tinoco Arbitration (1923), RIAA, 1, p 369.
6 See Riis Claim, ILR, 26 (1958-II), p 274; Russell Jackson v People’s Republic of China, ILM, 22 (1983), p 75 (and see also p 1077); as regards succession to the financial obligations owed to the UN in the case of the change in the regime representing China, see ILM, 11 (1972), pp 653–4; Bissell, AJ, 69 (1975), pp 628–33; and RG, 88 (1984), p 215, as to succession to China’s unpaid contributions to the ILO.
The repudiation in February 1918 by the Russian Soviet Government of the public debts of Russia incurred by the previous duly recognised governments was a breach of international law as generally understood at that time; see Fauchille, § 215 (4), and literature there cited. See also Chailley, La Nature juridique des traités internationaux (1932), pp 135–46. This attitude of the Soviet Government constituted one of the reasons why a number of states refused at that time to recognise that government. There appears to be room for a reconsideration of the existing rule on the subject in cases when the social and political upheaval accompanying a revolutionary change of government is such as to render equitable and reasonable a modification of the obligations contracted by the former regime. In 1986 the Soviet Union concluded with the UK an agreement (TS No 65 (1986)) under which the UK agreed not to pursue British claims in respect of inter alia bonds issued by and debts owed by the former Russian Imperial Government, and released to the Soviet Union certain moneys held in official bank accounts of persons representing the former government; for its part the Soviet Union agreed not to pursue certain claims against the UK, including claims to certain gold and other assets in the UK of the former Imperial Russian Government.
A somewhat similar agreement was later concluded between the UK and China, whereby the UK undertook not to pursue British claims in respect of inter alia debts incurred by, and bonds issued by, former Chinese Governments (which debts and bonds the Government of the People’s Republic of China had from the beginning disowned), in view of which undertaking China agreed to pay a stated sum to the UK (TS No 37 (1987)).
7 See pp 178–9.
8 See eg Lithgow and Others (1984, 1986), ILR, 75, p 439, in which a new British Government continued as defendant in proceedings instituted against the UK at a time when a government of a different political persuasion was in power and whose policies led to the situations giving rise to the litigation.
9 See Tietz v People’s Republic of Bulgaria (1959), ILR, 28, p 369.
10 See § 47, n 7. See also RG, 85 (1981), pp 406–9, for the assertion by the Soviet Union of rights over the wreck of a former Tsarist warship (notwithstanding the Soviet Union’s rejection of succession to the former Tsarist government in other respects: see eg n 6).
1 See § 73.
3 See § 81.
4 See § 75.
2 As eg when Tanganyika and Zanzibar united in 1964 to constitute the new State of Tanzania, or when the People’s Democratic Republic of Yemen and the Yemen Arab Republic united in 1990 to form the Republic of Yemen.
3 See generally, § 75.
4 See § 55, nn 41–4.
6 See eg as to the break-up of the United Arab Republic in 1961, § 63, n 6.
7 See, in favour of the view that the new Austrian Republic was a new state, Strupp, Eléments, § 5, p 110; contra, Temperley, iv, pp 417, 418, Soubbotitch, Effets de la dissolution de l’Autriche-Hongrie sur la nationalité de ses ressortissants (1926), pp 41–5, and Borchard, AJ, 19 (1925), pp 358, 359; the matter is also discussed by Anzilotti, p 86; Sack, Les Effets des transformations des États, etc (vol i, 1927); and Udina, L’estinzione dell’ imperio Austro-Ungarico nel diritto internazionale (2nd ed, 1933); Marek, The Identity and Continuity of States in Public International Law (1954), pp 199–236.
The question has also arisen in connection with the old Ottoman Empire and the new Turkish Republic. In the Ottoman Debt Arbitration of 1925, it was held that the latter was not a new state, but a continuation of the former; RIAA, 1, p 529. See also Hall, p 116 (n); Hyde, i, § 129; Kelsen, Hag R, 42 (1932), iv, pp 294–97; Balladore Pallieri, p 147; Anzilotti, pp 177–86. As to the end of the Kingdom of Montenegro, see Re Savini, decided in October 1927 by the Court of Appeal of Rome: AD, 4 (1927–28), No 106. On the continuity of the Czechoslovak Republic in the years 1938–45 see § 55, nn 3–6; Keruča, Bulletin de droit tchécoslovaque, 5 (1947), pp 45–59; Vošta, O právní kontinuité ceskoslovenské republiky (1947); and Kojecky, Ceskoslovensko ve sveile theorie mezindrodního práva a uznání (1947).
8 Courts in the Federal Republic of Germany have held the German Reich to continue in existence (but without institutional organs enabling it to act) and the Federal Republic of Germany to be a reorganisation of part of that Germany, and as such identical with it, so that eg treaties concluded by the Reich continue to bind the Federal Republic (see the decision of the Federal Constitutional Court of 26 March 1957, AJ, 52 (1958), p 357; Trademark Registration Case (1967), ILR, 59, p 490), although as regards eg territorial extent the identity is only partial (see the decision of the same court of 31 July 1973 in Re Treaty on the Basis of Relations between the Federal Republic of Germany and the German Democratic Republic 1972, ILR, 78, p 150. The relationship between the former Reich and the Federal Republic of Germany is thus in these cases seen as one of identity and continuity, rather than of state succession (ibid). The continuity of the Reich in the Federal Republic of Germany has been accepted in other countries: see eg Re Swane (1958), ILR, 26 (1958-II), p 577 (Netherlands); Simon v Taylor (1974), ILR, 56, p40 (Singapore). The Federal Republic has similarly, in other respects, adopted the position that it is a continuation of the Reich, and has thus, eg accepted responsibility for the Reich’s external debt: see § 63, n 10. See also several cases noted in AJ, 49 (1955), pp 421–2. But the issue is complex, and judicial decisions and state practice have not been wholly consistent. See generally § 40, n 19 ff, and § 63, n 4.
See also § 64, n 4, as to similar questions which arose on the independence of British India and its simultaneous partition into India and Pakistan.
9 Acquisition of title by conquest is nowadays not permissible: see § 263 ff.