Public

international law
university of gondar
school of law

Fourth Year Law Student

Shall we begin?
How To Study Public International Law
• PIL is a unique species of law and as such creates
problems for students more familiar with the
functioning of conventional forms of law.

• Although analogies in content do exist, PIL is

unlike the law of tort or the law of contract. In
particular, PIL lacks a coherent and
comprehensive body of judicial doctrine and does
not operate in terms of the doctrine of
precedent.
• PIL often cannot be explained without a basic
knowledge of contemporary world politics.

• The development of this subject is

fundamentally dependent upon surrounding
extra-legal circumstances.
• In order to fully understand the subject of international law,
it is important to acquire a comprehensive and overall
framework of the subject and to understand how the
different areas of the law relate to each other.

• International law is characterised by an extensive

overlapping in topics. Points brought up in one topic, such
as the sources of international law or the use of force by
states, continuously recur throughout other area of the
subject. This is to be anticipated since international law is a
dynamic and complex subject. An overall general
knowledge of each individual subject matter will ultimately
facilitate the acquisition of an extensive and detailed
knowledge of each individual subject matter.
Which state shall have the jurisdiction to try this case?

• Airplane belongs to state Australia.

• Departing from state Brazil.
• Destination to state China.
• Enroute via state Denmark.
• Crime started at state Ghana.
• Crime ended at state China.
• Accused is a citizen of state Ethiopia.
• Victim is a citizen of state Finland.
WHAT IS MEANT BY THE LAW OF NATIONS?

• The Law of Nations is the science of the rights exist

between Nations and States, and of the obligations
corresponding to these rights.
  The meaning of international law
• Modern approach:
“the body of law that regulates the activities
of entities possessing international
personality”

• Traditional approach:
“the conduct and relationships of states”
 What is international law?
• Basically defined, international law is simply the set of rules
that countries follow in dealing with each other.
• SCOPE; There are three distinct legal processes that can be
identified in International Law that include Public
International Law (The relationship between sovereign states
per se, and states vs. international entities such as
International Criminal Court), Private International Law
• (Addressing questions of jurisdiction in conflict), and Supranational Law
(The set of collective laws that sovereign states voluntarily yield
to). But this basic definition must be supplemented with three more-
complex explanations—is international law really law, the way the laws of
the United States, enforced by courts and police, are? Where do we find
the rules of international law? Are they written down somewhere? Finally,
how is international law enforced, if there is no world government?
• The term “International Law” can refer to three
distinct legal disciplines:
 Public international Law, which governs the relationship between
states and international entities. It include these legal fields:
treaty law, law of sea, international criminal law, the laws of war
or international humanitarian law, international human rights law,
etc.
 Private international Law, which addresses the questions of (1)
which jurisdiction may hear a case, and (2) the law concerning
which jurisdiction applies to the issues in the case.
 Supranational Law, which concerns regional agreements where
the laws of nation states may be held inapplicable when
conflicting with a supranational legal system when that nation
has a treaty obligation to a supranational collective.
Ex: EU law
10
 The division of international law

PUBLIC PRIVATE
INTERNATIONAL LAW INTERNATIONAL LAW
(INTERNATIONAL LAW) (CONFLICT OF LAWS)
 What is “private international law”?
• The body of law that regulates the relations
between persons and entities in different states
• Private international law = “conflict of laws”
 Is international law, law?
• John Austin states that, before a rule can become ‘law’,
it should posses the following characteristics:

a) It should be in the form of order.

b) The order should be from a superior to an inferior.

c) The order should be backed by sanction (there

must be a threat).
 At a philosophical level:

Aspects which can be seen in a domestic

context: the existence of obligation,
external or internal, are arguably present:
analysis can be the same, that it is obeyed,
or should be obeyed because of arguments
re attributes of one or
some of the others:

Coercion (Bentham, Austin) (Law = Command of

sovereign backed up by sanction)
Social Contract (Socrates, Hobbes, Locke,
Rousseau)
Natural Law (Aquinas, Finnis, Fuller, Grotius)
Integrity (Associative obligations, Individual
Moral Integrity) (Dworkins)
No obligation (The Razian analysis)
Hallmarks which arguably make it
resemble law as a practical matter:

 Logical, formal body of written,

codified law
 Institutions have been set up to create
and enforce it – Legislature, Courts (eg
ICJ)
 Member states affected by it agree to be
governed by it
 Enforcement sometimes is effective
• BUT: Absence of an international
legislature vs. UNGA, UNSC
 Absence of courts with compulsory
adjudication…vs. Regional Hrts
courts, ICC, ICJ
 Absence of centrally organised
sanctions
 Problems of jurisdiction….can be
settled by agreement
 The obligations of international law
are different in character from those of
John Austin (positivist), following
Hobbes, Kant and Rousseau denies the
existence of genuine international law
Argument:
All that exists is international customary
morality
Without a sovereign to enforce it, law
does not exist.
International law is therefore only law
by ‘remote analogy’.
Who is the sovereign?

 The UN/United Nations?

 And then, even within the UN:(The General Assembly? The Security
Council?)
 The United States?

Enforcement?

ICJ?
Jurisdiction of The International Court of Justice - world court, judicial
organ of UN.
Dual jurisdiction (NB issues determination btw states, not justice in
relation to individuals)
1.Dispute resolution - Decisions on submitted disputes (in accordance with
international law) by States;
2. Advisory opinions - legal questions at the request of the organs of the
United Nations or authorised agencies .
ICC?

International Criminal Court (ICC),

governed by treaty – ‘Rome Statute’ (1
July 2002) 123 nation-states have ratified
as of January 2015.
Non-UN – is first permanent, treaty
based, international criminal court (for
perpetrators of most serious & heinous
crimes of concern to the international
community.)
• Austin submission:

International law is NOT law.

• Reason: In international law, there is no world

Parliament to issue orders and it has no police
force to enforce any regulations.

• Therefore he concludes that international law

should be regarded as ‘international morality’.
 John Austin regarded International Law as a ‘positive morality’
in the 19th century, when international community lacked
legislation, a court, sanctioning powers and enforcement
machinery. And in view of all these if he concluded that
International Law is not a true law, perhaps he was not wrong.
But presently, international legislation has come into existence
as a result of multinational treaties and conventions.
 If rules are violated by a State, sanctions may be applied against
it not only by the aggrieved State itself but collectively by the
United Nations Organization (UNO) as well. Further,
international community has a Court (International Court of
Justice), whose decisions are binding upon the parties to a case.
If a party falls to perform its obligations incumbent upon it
under a judgment rendered by the Court.
 Development of Public
international law:genesis
• International law development can be divided into
seven stages.
1. The primitive and Ancient Period
• Early treaties 2100BC, Lagash & Umma city
states in Mesopotamia.
• 1000BC-Agreement was signed b/n Ramses II
of Egypt V. king Hittites for peace &
brotherhood.
• Jus gentium: b/n citizens V. foriegners ….ideas
of justice and fairness…Vs. jus civile
2. The Middle Age
 Modern international law generally
recognized as having its genesis in the
Middle Ages in Western Europe - where, at
the time, process of decentralization leading
away from Roman Catholic Church and
Holy Roman Empire towards the
Reformation and rise of Nation-States.
 Thirty Years of War (1618-1648) came to an
end with Treaty of Westphalia (significant
event for international law) - treaty based on
recognition of community of independent
and equal "sovereign" entities
- After collapse of Roman empire, plethora of
independent states, cities, nations, communities
were…proliferated.

Treaty of Westphalia, Germany in 1648: was the

milestone for the beginning of modern international
law; by establishing the principle of state
sovereignty.

 Ceased the Thirty Years War(1618-1648) in Holy

Roman empire agreed each prince can have the right
to determine the religion of its own state and
secondly recognition of exclusive sovereignty of
states
3. The Era of Hugo Grotius

 Hugo Grotius,(1583-1645) dutch in 1625.. known as “The father of

international law” preaches international law via natural justice wrote a
book on law of war and peace(“de jure belli ac pacis”).I) war & natural
justice…just war II)just cause…self defense, reparation & punishment III)
rules of the conduct of war
 He held the doctrine called Parallelism since individuals obeys contract
and laws; then states do the same.
"Natural law", given universalist empire and Church,
initially theological (including divine revelation as
one of its sources) - however by time of Hugo Grotius
(1583-1645) natural law adopting a rationalist
approach, being seen to derive from universal reason.

- Independence and equality of States translated into

need for consent - clear tension between natural
law and notion of consent.
4.The 19th Century: international law loss
its momentum due to tensions and wars in
Europe and revival of positivism.
Positivists argues the consent of states as
abase for international law
"Positivism" challenged natural law in 18-
19C - means complete preoccupation with
practice and thus consent of States in law
creation
(a) State only bound by rules it consents
(b) If international law did not prohibit
conduct, State free to act
Majority judgment in Lotus was strongly positivist
France v Turkey "The Lotus Case" (PCIJ, 1927)
Facts:
- Collision between a French steamer named S.S.Lotus and a Turkish
steam ship S.S.Boz-Kourt on the high seas - 8 Turks died
- French officer, Monsier Demons, was prosecuted and sentenced to
80 days in prison and fined $22
- France claimed Turkey had impermissibly exercised jurisdiction
over Demons
Held:
- Turkey had not violated international law
- Unless a rule prohibited certain conduct, then Turkey was free to do
so "The rules of law binding upon States therefore emanate from their
own free will as expressed in conventions or by usages generally
accepted as expressing principles of law and established in order to
regulate the relations between these co-existing independent
communities or with a view to the achievement of common aims.
Restrictions upon the independence of States cannot therefore be
presumed"
“Lotus Principle:-Usually considered as a
foundation of international law, says that
sovereign states may act in any way they wish
so long as they do not contravene explicit
prohibition.”
Albeit, later in 1958 UN High Sea convention
Arts 11 says “only flag state or the state which
the alleged offender was a national had
jurisdiction over sailors regarding incidents
occurring in high seas.”
 By the way US uses this principle for
opposing the existence of ICC.
5.The First World War-and thereafter
After WWI States created League of
Nations in 1920 - renounced war as
instrument of national policy in 1928:
Kellogg-Briand Pact, Art 1
- Treaty of Versailles established
International Labor Organization (ILO)
and
- PCIJ
- League failed to censure Italy and
Japan for acts of aggression against
Ethiopia and China respectively
6.The Second-World War- and thereafter
50 States signed UN Charter on 26 June 1945
• Art 2(4) prohibits use of force; unless authorized by
SC
• Charter refers to human rights and fundamental
freedoms: Arts 1, 55, 56, 62, 68 and 76
Cold War
Political and ideological rivalry between East and West
had significant effect on content and application of
international law
Sustained process of decolonization - increased size
and diversity of international community
Since end of cold war - seen rise of power of non-
governmental entities and reduction of freedom of
States to set national policy
7 .The Present-International Law
Currently, international law reaches
some what intended yet bounded by
terrorism, radicalism, Cyber attacks,
drones and robotics
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 Sovereignty:- is understood in jurisprudence as a full
right and power of a governing body to govern itself without
any interference from outside sources.
 the Concept of state sovereignty has two core
elements Viz;
1. State has exclusive control over its territory &
internal affairs.Arts 2(1) UN
2. Being autonomous and can not be bound by any
obligation without consent. Glance at Arts 2(7) UN
charter:
“Nothing in the present charter shall authorizes the
united nations to intervene in matters which are
essentially within the domestic jurisdiction of any
state…save as enforcement measures under chapter
VII.”
• "Sovereignty" can be "unpacked" (Prof.
Henkin):
1. Independence
2. Equality - equal in status, person-hood, legal
capacity, rights, duties and responsibilities
(although can agree to give some States preferred
status, e.g. permanent SC members)
3. Autonomy
4. States as persons
5. Territorial integrity and authority
6. Impermeability :impossibility of passage
State Sovereignty confers rights up on states and
imposes obligations up on them.as ICJ reaffirmed
in its ruling on Corfu Channel Case (UK V Albania
1949).
Statehood under International law
Under Montevideo convention on the
right and duties of states in
1933;Article 1
“The states as a persons of
international law should posses the
following qualifications :
A) a permanent population B) a
defined territory C) Government and
D) Capacity to enter relations with
other states.”
Population and Territory
Vatican City, established by the 1929 Lateran treaties, is the
smallest State in the world consisting of 106 X 4000(M2)acres;
there are only 200 citizens and it is represented by its
government -- the 'Holy See' -- in international relations.
Despite its limited size (territory) and non-perpetuating
citizenship (population) Vatican City has an effective
government and is recognized by more than 150 States, making
it a full-fledged member of the community of States.
• capacity to enter relations with
other States [i.e. not subordinated to
another State, e.g. Japanese
controlled Manchukuo in 1930s]."

• Independence as a requirement of statehood

means, to some extent, factual, as well as
legal, independence from other states.
Austro-German Customs Union Case (PCIJ,
1931) - advisory opinion
Held: the conception of independence, regarded as the normal
characteristic of States as subjects of international law, cannot
be better defined than by comparing it with the exceptional and,
to some extent, abnormal class of States known as dependent
States".
North Atlantic Coast Fisheries Case (PCIJ, 1910)
Held: rejected a US submission in the following terms:
"...to hold that the US, the grantee of the fishing
right, has a voice under the treaty granting the
right in reparation of fishing legislation,
involves recognition of a right in that country to
participate in the internal legislation of GB and
her colonies and to that extent would reduce
these countries to a state of dependence..."
self determination
Has a long history in international
relations as a reason for the cession of
territory from one state to another for
the use of plebiscites to establish the
wishes of the inhabitants in this
connection.
•Declaration on the Granting of independence to
Colonial territories and People 1960 this resolution
"solemnly proclaims the necessity of bringing to a
speedy and unconditional end colonialism in all its
forms and manifestations."
The principle allows a people to determine their
own form of economic, cultural and social
development, free from outside interference, and
requires governments to represent the whole
population without distinction. It also maintains
that peoples are entitled to choose their own
political status.
The principle has been applied by the ICJ in the
process of decolonisation. In the East Timor
case, the ICJ confirmed that the principle of self
determination of peoples is one of the essential
principles of contemporary international law.
More controversial is whether self-
determination should also apply to minority
groups or Indigenous peoples living within the
boundaries of an existing independent State.
The conventional view is that self-
determination cannot be claimed by such
groups in order to break away from
independent countries, although more limited
notions of self-determination have emerged
from the UN Declaration on the Rights of
Indigenous Peoples, which refer to the
capacity of those groups to exercise limited
forms of autonomy within independent States.
 Western Sahara Case (ICJ, 1975)
Held:
the principle of self-determination as a right of peoples
and its application for the purpose of bringing all
colonial situations to a speedy end, were enunciated in
the declaration (above)...
 The principle of Uti Possidetis juris (Latin:”You
may keep what you had”. Securing respect for
territorial boundaries at the moment when
independence is achieved.
 Glance @ Burkina Faso V Mali, (ICJ 1986)…
 State Succession
• The replacement of one state by another in
the responsibility for the international
relations of territory.
• Political entities are not immutable. They are
subject to change. New states appear and old
states disappear. Federations, mergers
dissolutions and secessions take place
• In such situations, Difficulties may result from
the change in the political sovereignty over a
particular territorial entity for the purposes of
international law and the world community.
• how far a state is bound by the former
territorial sovereign contracts and treaties??
• Does nationality automatically devolve upon
the inhabitants to replace that of the
predecessor?
• what will happen on the public property
situated in the new state? To what extent
could the new state be liable for the debt of
the old state
• In many cases, such problems will be dealt
with by treaties, whether multilateral treaties
or bilateral treaties
• BUT, the issue of state succession in
international law is complex. Many of the
rules have developed in specific response to
particular political changes and such changes
have not always been treated in a consistent
manner by the international community
 Governed by?
• Customary international law rules
• The Vienna Convention on Succession of
States in Respect of Treaties, 1978, which
entered into force in 1996,
• The Vienna Convention on Succession of
States in Respect of State Property, Archives
and Debts, 1983(not yet entered in to force)
• Application of the rules are dependent up on
the case, the form of creation of the new state
• Continuity vs. Succession
• when a new state is created whether it is
the continuation of the predecessor state or
its totally a new should be decided.
USSR, Russia claimed to be the continuation of
the former USSR, with respect to its
membership in the UN
• SFRY,…Serbia and Mont, claimed to be its
continuation, not a new state .But, the UN SC
has rejected its continuation and they have
filed a new admission procedure.
• Unification …1990, Yemen(Yemen Arab
Republic + the People's Democratic Republic
of Yemen)
• secession
• absorption ..Germany (1990)
• Disintegration
 State succession to treaties
• treaties
• The rules concerning succession to treaties
are those of customary international law
together with VCLT(after 1996)
• type of treaties
• 1. territorially grounded treaties
• rights or obligations are imposed directly upon
identifiable territorial units
• Boundary treaties
• The accepted rule is the uttipossidetis juris or
• Uti possidetis Utipossidetis principle
• boundaries established by treaties remain
untouched by the mere fact of a succession.
• for reasons of maintaining the international
stability, this rule is supported(there is a
higher state practice, general international
law)
• echoed in US practice and explicitly laid down
in resolution 16 of the meeting of Heads of
State and Government of the Organization of
African Unity 1964, by which all member
states pledged themselves to respect colonial
borders.(decolonization process)
• Burkina Faso/Mali case (ICJ, 1986,)
• This Principle has been Extended to, the
creation of new states out of existing
independent states (not only decolonization)
• State practice reveals that, the transformation
of administrative boundaries into international
boundaries generally. For instance, the
Arbitration Commission on Yugoslavia, which
noted, with respect to the status of the former
internal boundaries between Serbia on the one
hand and Croatia and Bosnia and Herzegovina
on the other, that, ‘except where otherwise
agreed, the former boundaries become frontiers
protected by international law.’
• This principle regarding the continuity of borders in
the absence of consent to the contrary is reinforced
by other principles of international law, such as
• Article 62(2) of VCLT
• “a fundamental change in circumstances may not be
invoked as a ground for terminating or withdrawing
from a treaty that establishes a boundary’’
 Article 11 of VCLT,
• A succession of States does not as such affect:
(a) a boundary established by treaty; or (b)
obligations and rights established by a treaty
and relating to the regime of a boundary.
• LIBYA VS. CHAD case,(ICJ, 1994)
• “The treaty can cease to be in force without in any
way affecting the continuance of the boundary.. .when
a boundary has been the subject of agreement, the
continued existence of that boundary is not dependent
upon the continuing life of the treaty under which the
boundary is agreed.”( the succession is to the boundary)
• more controversial area of agreements creating
other territorial regimes, such agreements
being termed 'localized‘ or 'real' or 'dispositive
Ex. demilitarized zones, rights of transit, port
facilities and other servitudes
• should the uti possidetis principle extends??
• Article 12 VCLT, ‘‘a succession of states does not as
such affect obligations or rights relating to the use of any
territory or to restrictions upon its use established by a treaty
for the benefit of any foreign state, group of states or all states
and considered as attaching to the territory in question.’’
• The gabtikovo Nagymarous project
case(ICJ,1997)…Art.12 VCLT, is a customary
international law rule… treaties concerning
water rights or navigation on rivers constituted
territorial treaties.
• 2. Political or personal treaties
• Treaties linked with the regime in power, and
its political orientation eg. Treaty of alliance,
friendship/neutrality
• Rule: Such treaties do not bind successor states for
they are seen as exceptionally closely tied to the
nature of the state which has ceased to exist
• NB; Apart from the categories of territorial and
political treaties, where succession rules in general
are clear, other treaties cannot be so easily defined
or categorized for succession purposes and must be
analyzed separately.
 1. In case of absorption or merger
• Principle; the treaties of the former, certainly
in so far as they may be deemed 'political', die
with the state concerned, but territorial treaties
defining the boundaries of the entity absorbed
will continue to define such boundaries
• THUS, treaties of the absorbing state continue
and will extend to the territory of the
extinguished state(unless agreed to the
otherwise)
 Cont’d
• Art.31(1) VCLT: where two or more states unite and
form one successor state, treaties continue in force
unless- the successor state and the other state party
or states parties otherwise agree or it appears that
this would be incompatible with the object and
purpose of the treaty or would radically change the
conditions for its operation
• 2. such treaties would apply only in respect of the
part of the territory of the successor state in respect
of which the treaty was in force at the date of the
succession of states UNLESS,
 Cont’d
• The new state(successor) notify for its overall
applicability, in case of multilateral treaties
• In case of bilateral treaties, the successor state
and the other state agree.
• In the cases of both the Egypt-Syria merger to
form the United Arab Republic-1958 and the
union of Tanganyika and Zanzibar to form
Tanzania in 1964, continuation of treaties in the
territories to which they had applied before the
respective mergers was stipulated
 2. Cession of territory from one
state to another
• When part of the territory of one state becomes
part of the territory of another state, the
general rule is that the treaties of the former
cease to apply to the territory while the treaties
of the latter extend to the territory
• The moving frontier’s Rule(Article 15
VCLT),CIL
• Eg.after1919, German treaties would not apply
to Alsace-Lorraine, while French treaties
would thereafter be extended to that territory
 3.Secession from an existing state to form a
new state or states
• Separation or dismemberment,
• When a state secede, or disintegration
• e.g. 1961 dissolution of the United Arab
Republic into the pre-1958 states of Egypt and
Syria, SFRY, USSR
• Eritrean separation from Ethiopia
•
 Principle
• Where there is a separation or secession from an
independent state which continues, in order to
create a new state, the former continues as a state,
albeit territorially reduced, with its international
rights and obligations intact.
• But, the newly created state will commence
international life free from the treaty rights and
obligations applicable to its former sovereign.
• The clean slate doctrine
 The clean slate doctrine
• Because, it is difficult to maintain as a rule of
general application that states that have not signed
particular treaties are bound by them. However, it is
dependent up on the state’s position
• VERSUS
• The VCLT, adopted ‘the continuity principle’
consider Article 34, and 35…………..but we cannot
say its CIL
• ILC position reiterated, 'in modern international law having regard to
the need for the maintenance of the system of multilateral treaties and
of the stability of treaty relationships, as a general rule the principle
 It can be said….that
• the greatly increased network of multilateral
treaties and the vastly enhanced
interdependence of states founded and
manifested upon such agreement, is moving
the international community towards the
continuity of treaty obligations.
• eg.Nuclear proliferation treaty….Russia
maintains the position of discontinuation but
opposed,….hence, continued obligation
• IT IS ALSO DEPENDENT UP ON THE STATES WILL..IN
 4. Newly independent states
• Refers to the decolonized states (consider
Article 2(1) of VCLT)
• General Rule, Art.16 VCLT
• The general rule that such states were not
bound to maintain in force or to become a party
to any treaty by reason only of the fact that the
treaty had been in force regarding the territory
in question at the date of succession
• Doctrine of clean Slate
 Cont. d
• But, unilateral declaration or devolution
agreements may have an effect of reducing
the clean slate doctrine
 Cont.
• HUMAN RIGHTS TREATIES
• they establish that, obligations are owed directly to
individuals.The very nature of international human
rights treaties varies somewhat from that of
traditional international agreements.
• The ICJ in the Reservations to the Genocide Convention
case emphasized that 'in such a Convention the contracting
states do not have any interests of their own; they merely
have, one and all, a common interest, namely, the
accomplishment of those high purposes which are the
raison d'tre of the Convention.
• In the post SFRY case, the UN human rights
committed has been working on the
continuation of all human rights treaties in the
successor states.
• arguments forwarded that, international
human rights treaties are erga omnes
obligations. Thus, all members of the
international community should observe
• the Membership to the UN creates a great
implication
 Succession on other matters
• 1. membership to IOs
• Succession to membership of international
organizations will proceed (depending upon the
terms of the organization's constitution) according to
whether a new state is formed or an old state
continues in a slightly different form.
• with respect to UN, the six legal committee of GA,
has developed a principle
 Accordingly,
• 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 frontier has been
subjected to changes
• when a new state is created, it cannot under the
system of the Charter claim the status of a member
of the United Nations unless it has been formally
admitted as such in conformity with the provisions
of the Charter.
 Succession to assets and debts
• The Vienna Convention on Succession to State
Property, Archives and Debts,(not in force, but most
of the provisions are CIL)
• PRINCIPLE; the relevant parties should settle such
issues by agreement(the rules of the convention are
of secondary application)
 2. State property
• The classic rule postulates that only the public
property of the predecessor state passes
automatically to the successor state
• what is Public Property?
• It is determined by the municipal law of the
predecessor state (Chorzow Factory case, PCIJ, Series A,
No. 7, p. 30 and the Gerrrlan Settlers in Ltpper Silesia case,
PCIJ, Series B, No. 6, p. 6)
• property, rights and interests which, at the date of the succession of
states, were, according to the internal law of the predecessor state
owned by that state (Art.8)
 Cont.
• It is a recognized principle of customary
international law that the public property of a
predecessor state with respect to the territory in
question passes to the successor state
• but, property can be immovable or movable
• IMMOVABLE PROPERTY:
• A- those immovable properties situated outside the
successor state, or in the predecessor state, it will
continue to that of the predecessor state
• Where the predecessor state ceases to exist, it would
appear that its property abroad should be divided
proportionately between the successor
states(dissolution)
• Art. 15 with respect to newly independent states it
provides a special rule;
•
• 'immovable property, having belonged to the
territory to which the succession of states relates,
situated outside it and having become state property
of the predecessor state during the period of
dependence, shall pass to the successor state', while
other immovable state property situated outside the
territory 'shall pass to the successor state in
proportion to the contribution of the dependent
territory
• it is not a CIL, and the convention is not yet in force
• B. MOVABLE PROPERTY
The convention provides that, 'movable state property
of the predecessor state connected with the activity of
the predecessor state in respect of the territory to
which the succession of states applies shall pass to the
successor state.(Article 17, 14-2-b,)
• movable property situated outside the territory in
question(the successor state)??
•
• Article 17(1) of VC-such property (in the case of
separation of part of a state) shall pass to the
successor state in an equitable proportion
• it is not the practice of states
• it is controversial as it opposes the territoriality
view. But, the equitable distribution rule works in
case of dissolution of states like USSR, SFRY
• the practice of states as to movable properties or
division of assets in general is settlement by
agreement
 Cont.
• For instance, ' In the case of the former Soviet
Union, Russia and the successor states signed
agreements in 1991 and 1992 apportioning assets
and liabilities of the predecessor state with the share
of Russia being 61.34 per cent and the Ukraine
being 16.37 per cent
• ETHIO-ERITEREA???
 State Archives
• Archives are a crucial part of the heritage of a
community and may consist of documents,
numismatic collections, iconographic documents,
photographs and films
• Art. 20-1983 Convention provides, ‘state archives means:
all documents of whatever date and kind, produced or
received by the predecessor state in the exercise of its
functions which, at the date of the succession of states,
belonged to the predecessor state according to its internal
law and were preserved by it directly or under its control as
archives for whatever purpose.
• Rule- Generally, such archives will pass as at the
date of succession and without compensation,
without as such affecting archives in the territory
owned by a third state.
• 1- in case of independent states from colonization,
• The Archives which for normal administration and
archives which principally and exclusively related
with the successor state should pass to the successor
state(the new states)-Art.28(1)
• Treaty of Peace with Italy of 1947- Italy was to restore all archives and objects of historical
value belonging to Ethiopia removed from Ethiopia to Italy since October 1935
 But,
• Article 28(2), with respect other type of archives
‘the passing or the appropriate reproduction of parts
of the state archives of the predecessor state of
interest to the territory concerned is to be
determined by agreement, 'in such a manner that
each of these states [i.e. predecessor and successor]
can benefit as widely and equitably as possible from
those parts of the state archives of the predecessor
state'
• Art 28(3) –the predecessor state is to provide the
newly independent state with the best available
evidence from its state archives relating to territorial
title and boundary issues
• 2. in case of transfer of territory by one state to the
other(Article 27)
• 3. in case of secession of part of a territory(Article
30)
• 4, in case of dissolution(article 31)
• 5. in case of merger (article 29)
• STATE DEBT
• A succession of States does not as such affect the
rights and obligations of creditors (art. 36)
• “State debt” means any financial obligation of a
predecessor State arising in conformity with
international law towards another State, an
international organization or any other subject of
international law-Art. 33
1. Transfer of part of the territory of a State
Article 37
2. Newly independent states (Art.38)
3. Uniting of states(Art.39)
4. Separation of part or parts of the territory of a State
(Art.40)
5. dissolution-art.41
• PRIVATE RIGHTS
• acquired rights of private property under a
prior sovereign would not be denied or lost by
a change of a government.
• In case of expropriation it must be, made with
due conditions and fro legal purpose
• State succession and Nationality
• In principle, the issue of nationality will depend
upon the municipal regulations of the predecessor
and successor states.
• The laws of the former will determine the extent
to which the inhabitants of an area to be ceded to
another authority will retain their nationality after
the change in sovereignty, while the laws of the
successor state will prescribe the conditions under
which the new nationality will be granted
• The general rule would appear to be that nationality
will change with sovereignty, although it will be
incumbent upon the new sovereign to declare the
pertinent rules with regard to people born in the
territory or resident there, or born abroad of parents
who are nationals of the former regime
• But, the 1961 Convention on the Reduction of Statelessness
provides that states involved in the cession of territory
should ensure that no person becomes stateless as a result of
the particular change in sovereignty
• In 1999, the International Law Commission adopted
Draft Articles on Nationality of Natural Persons in
Relation to a Succession of a state
• individuals who on the date of succession had the
nationality of the predecessor state, irrespective of
the mode of acquisition of that nationality, have the
right to the nationality of at least one of the states
concerned
• while persons having their habitual residence in the
territory concerned are presumed to acquire the
nationality of the successor.
• the states concerned shall grant an opt out right to
the individuals,….the chosen state should grant a
citizenship, and the renounced state should
withdraw its citizenship