State Succession - Cekli Setya Pratiwi

Report
State Succession
Kevin Iraniha
State Succession
• Definition
– Brownlee: Replacement of one state by another in
respect of sovereignty over the territory
– Vienna Convention: “succession of States” means
the replacement of one State by another in the
responsibility for the international relations of
territory
• Sources:
– Convention: Vienna Convention on Succession of
States in Respect of Treaties (1978), effective 1996
– Customary International Law
State Succession
• Problems:
– Is successor state bound by all or any treaties of the
predecessor?
– Do the people automatically become nationals of the
successor state?
– Is the successor state affected by claims or debts of
predecessors?
– What happens to public and private property?
• 2 differing principles:
– Roman Law (Continuation) – New state continues the legal
personality of the predecessor
– ‘Clean Slate’ principle – New state acquires sovereignty
free from encumbrances created by the predecessor state
• Much depends on circumstances of the particular case
as to if it will be a continuation or a ‘clean slate’ state
State Succession
• How?
– Dismemberment of existing state
• Soviet Union to Russian Federation (continuation)
• Yugoslavia into Croatia, Slovenia, Bosnia-Herzegovina, Montenegro,
Serbia, Kosovo, Macedonia = new independent states (Clean-slate)
– Secession – withdrawing from a territory
• Belgium (1830) from Netherlands
• Bangladesh from Pakistan
– Decolonization
• India – remained same legal entity as British India (Continuation)
• Pakistan – became a totally new state (‘clean slate’)
– Merger of existing States
• Yemen Arab Republic and People’s Democratic Republic of Yemen –
Merged and became the Republic of Yemen (new State)
• German Democratic Republic (GDR) and Federal Republic of Germany
(FRG) – Merged and remained the FRG (Continuation)
– Partial cession or annexation of territory
• Hawaii
Yugoslavia Dismemberment
State Succession
• State Property
– Generally accepted to be ceded to the successor along with
territory and sovereignty, unless cultural heritage or similar
cases
• Public Law Claims
– Generally accepted that successor state has a right to take up
fiscal claims belonging to former state
– Example: Collecting Taxes
• Public Debt – More controversial
– Continuation = successor should assume public debts
– ‘clean slate’ = sometimes remains with predecessor state,
sometimes taken up by the successor state.
• State Contracts (Treaties, etc.)
– Article 16 states that newly independent states (decolonized
states) receive a "clean slate", whereas article 34(1) states that
all other new states remain bound by the treaty obligations of
the state from which they separated.
State Succession
Nationality
– Population follows the change of sovereignty
– Treaty of Peace with Italy (1947)
• Inhabitants of territory will become citizens of transferee with a right of
option given
– Minorities Treaty signed at Versailles:
• Poland admits and declares to be Polish Nationals ‘ipso facto.’ New
nationals can declare abandonment of Polish nationality within 2 yrs.
– U.N. Charter
• Change of Sovereignty doesn’t give new sovereign the right to dispose of
the population
– Human Rights Perspective
• To prevent Stateless peoples, nationality shall be given by new sovereign
• Problems to address by government of Successor State:
– Alien residents in territory
– Born abroad of parents who are nationals of former regime
– Dual nationality with former regime
State Succession
Other Provisions
• Even if a ‘clean slate’ state, they are still bound
by ‘General International Law
– Like Convention on the High Seas
• Must conform to Boundary Treaties, even if
treaty ceases to exist
• Must conform with existing principles of Jus
Cogens

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