What do you mean by state succession? Write about rights and duties arising out of state succession

What is state succession-

Succession is merger or absorption of one state by another state or states. The state succession is distinguished from gout succession. When succession take place than a state loses fully or a part of it’s territory; while in government has been changed.

               A succession of international person (generally states) occurs when one or more international person take place of another international person take place of another international person fully or partly and all the right and liabilities also transfer during the succession.

               Art 2 (1) (b) of the Vienna convention on succession of states in respect of treaties in 1978 defines the term ‘state succession” as,” the replacement of one state by another in the responsibility of the international relation of territory”.

                The rule of state succession was incorporated from the Roman law by Grotious. In Roman law when a person dies his rights and duties are succeeded by his successors. This principle was applied by Grotious in the International law as well. Later on there were certain international treaties through which the rules of state succession were developed. The law of state succession is still developing.

Right and duties arising out state succession

1. Political Right and duties: No succession take place in respect of political duties and rights. Hence the succeeding state is not bound by the political treaties of the former state. State is not bound by the treaties of place or neutrality entered by the extinct state.
2. Local right and duties: When any succession take place local right and duties. i.e. right relating to land, rivers, roads, railways etc. Also succeed from extinct (predecessor) state to succeeding state.                                                                                                           

                     Permanent court of International Justice” held that private rights do not end by the changes of sovereignty.

3. Fiscal property debts: when one or more international person (state) take place of another person is called state succession; in state succession fiscal property debts also transferred from extinct state to successor state.

4. Contracts: Predecessor state entered into contract, now whether the successor state is bound by that or not.

                   West Rand century Gold Mining Co.Ltd

                                VS/

                           King

It was held that succeeding state was entitled to decide whether it will accept the financial obligation of former state or not if it won’t accept then it won’t be liable.

5. Concessionary Contracts : If the existing state has granted certain concession like the right to operate oil mines; laying of railways etc. then such contract will be binding on succeeding state, because they are local nature.

                     But some of the writers/ Jurists say that the concessionary contracts are not binding on succeeding state.

6. Lows s: Succeeding state will have to decide whether the law have to decide whether the will be continue or not.

7. Unliquidated damages for tort: Compensation (damages) for unliquidated damages won’t exist in state succession.

8. Nationality: National of new state is gained and nationality of the predecessor state is lost.

9. Succession to property in foreign state: Successor state will not only receive the property situated with in the territory but also receive the property exist in outside the territory which was belonging to predecessor state.

10.Succession of state Archives: If no agreement was concluded in the case of cession the successor state; the successor state should receive the part of the archives necessary for an efficient administration of the acquired territory and all other document.

11. Treaty relations: Art 15 of Vienna convention” treaties of the predecessor state are to be territory.

Discuss the relationship between Municipal law and International Law

The question of the relation between international law and the state law not only for theoretical importance but also of immense practical importance.-

Firstly,  the law treaties, which affect the state law cannot be clearly understood unless the relation between the two legal systems is clearly appreciated.

Secondly, it is very often the municipal court has to decide some problem/cases, where it has to go give effect to the international law. Thus the relationship between international law and state law is important.

Thirdly, international court and tribunals may have to determine the effect of a rule of municipal law in the international sphere. Here the relationship is again very important.

Relationship between International and Municipal law:

Theories-There are mainly two theories as to the relation between international law and state law. They are- (1) Monism,   (2) Dualism

(1)   Monism:- Monistic theory was pronounced in 18^th century by German scholars Moser and Martens.

              According to this theory; international law and state law are the components 

 of one system of law in general. This theory regards that law is single unit consisting of rules are binding on states or on individuals or on entities other then state. According to this theory, both state law and international ultimately regulate the conduct of individuals. The only difference is that; in the case of international law; as it is applicable to the international law; as it is applicable to the international sphere, consequences of such conduct are attributed to the state.

(2)   Dualism theory:- According the followers of this theory Municipal law and international law are two separate distinct and self. Contained legal orders; independent from each other. According to the following of this theory international law is distinct from municipal law, on the following grounds-

(a)    Sources: The sources of both the system are quite different. Municipal law is the creature of legislature; while the treaties between the states are the sources of international law.

(b)   Regarding subject: Dualists are of the view that the subjects of international law and Municipal law are different from each other. While municipal law regulates the relations between individuals; and state and individual but the international law primarily regulate the relationship between states.

(c)    Regarding substance of law: Substance of the laws of two system are also different. While municipal law is a law of a sovereign over individuals, International law is a law not above but between sovereign states.

(d)   Regarding principles: The municipal law are followed because they are creation of legislature and there is sanction behind it; but international law bound by morality.

(e)    Regarding Dynamism of the subject-Matter: Subject matter of the two system are also different. While the subject matter of international law has always remained dynamic; subject- matter of the municipal law is limited.

(f)    Regarding Judiciary: The state Judiciary following the municipal law but international law is followed by the International law is followed by the International court of Justice or by other settlement authority.

Sources of public international law.

There are various sources of international law as follows-

• Main sources

1.      Treaties

2.      Custom

3.      Judicial decision

4.      General principle of law recognized by civilized states

5.      Writings of jurists

6.      Equity

7.      Resolutions of the General Assembly

• Some other sources

1. International comity
2. State paper
3. State paper for their officers
4. Reason
5. Equity and Justice

       

1. Treaties:  At present international treaties are the most important source of international

    Article 38(1)(a)  of the statute of the international Court of Justice lays  down that the

     Court while deciding any dispute shall apply international conventions which are expressly recognized by the contesting states. Treaties therefore have acquired a dominant importance in international law.

        Treaties are agreements between two or more states by which they create or intend to create a relationship between themselves.

2. Custom: Custom is the original and the oldest source of international law and at the time it was the most important among the other sources. Custom is the foundation stone of the modern international law. It was so because a large part of international law consists of customary rules.

  International custom evolve through the practiced and usages of nations and their recognition by the community of nations. Customary rules are referred to those rules which are practiced by most of the states.

3. Judicial Decisions: Judicial decision as the source of international law can be discuss in following points:

  a. International Court of Justice: In modern period international court of justice is the main International Judicial Tribunal. However, however it should be noted that the decision of International Court of Justice does not create a binding general rule of International Law.

  b. Awards of International Tribunal: Awards of international tribunal such as the ‘Permanent Court of Justice’, ‘American Mixed Claim Tribunal etc.

  c. State Judicial Decision: the state/domestic judicial decision helps in development of international law in some context.

  d. Juristic Work: although the judicial work can’t be treated as an independent source of international law; yet the view of the jurists may help in the development of law.

4. General principle of law recognized by the civilized nations: Article 38(1)(C) of the Statute of International Court of Justice recognized the General principle of law recognized by the civilized state as the third source of international law. In the modern period it has become an important source.

5. Writing of Jurists: Text books or writing of the jurists are one of the important sources of international law. The writings of – Ayala, Grotious, Puffendorf, Bynkershock, Vattel etc has make undoubted contribution in the development of international law

6. Equity: The term equity as a source of international law is used in the sense of consideration of fairness, reasonableness and policy often necessary for the sensible application of more settled rule of law. It is to be noted that equity has not been mentioned by the Statute of International Court of Justice as the source of international law. However, it is of great importance in the field where rules are not readily available. The Court in such cases can not refrain itself from rendering justice on the ground that law is silent.

7. Resolutions of the General Assembly: Resolutions of the General Assembly is also one of the sources of international law. Though Resolutions of the General Assembly of U.N do not possess legal character and as such are not binding on the States.