Continuity and Termination of Existence of States

Revolutionary or extra-constitutional change in government of a state does not alter its basic legal personality, so States are bound by international acts performed by previous governments.

Tinoco Concessions (GB v. Costa Rica) 1923

F: Tinoco, political leader, overthrew government in Costa Rica and declared new constitution. 1919 Tinoco government toppled, new leadership claimed that all rights granted to British companies under Tinoco government were quashed.

H: Arbitrator held that contracts were binding on Costa Rica, because Tinoco was in “actual and peaceable administration without resistance or conflict or contest”

· Changes in territory of a State may affect its legal personality – like merger, break-up, or incorporation.

· In secession, the State continues to exist as a legal subject, and the seceded part may acquire international recognition of statehood.

Issues of state succession arises if one State replaces another in jurisdiction over a territory – do the rights and obligations of former State get transferred to other international subject/s? This is dealt mainly by customary rules, to some extent codified in 1978 Vienna Convention on Succession of States in respect of Treaties and 1983 Vienna Convention on Succession of States in respect of State property, archives and debts.

Succession to Treaties:

Localized treaties – impose obligations and confer rights with regard to specific territories

· Because these treaties attach to a specific territory, they are not affected by fact of State succession, so they are binding on new entity (1978 Vienna Convention, Art. 12)

Non-localized treaties – do not concern specific territories

Two-tier system:

· Newly independent states – ‘clean slate’ – new states are not bound by treaties in force at date of succession, to take into account specific needs of decolonization process

· Other states – due to desire for int’l stability, continuity preferred, and States are bound by previously negotiated treaties (1978 Vienna Convention, Art. 34 and 35).

Treaties re Human Rights:

· General rule has evolved that the successor State must respect them.

Assets & State Archives

· Definition of what belongs to a State must be drawn from the relevant national law applicable at the moment of succession (1983 Vienna Convention, Art. 8)

· If assets are indeed public, then State that wields control over territory where assets are located succeeds ownership held by previous territorial State

Debts

· When a state breaks up and new entities are formed, the State debt of the predecessor passes to the successor States in an equitable proportion (1983 Vienna Convention, Art. 40)

Membership of international organizations

· If two states merge, the new state does not necessarily have to apply for new membership (to UN) (e.g when Egypt & Syria merged to form the United Arab Republic, Merger of N. & S. Yemen)

· If a member State breaks up, all must apply for membership on their own, except for bit that may successfully claim to be continuation of old State (e.g. Russia after break-up of Soviet Union).

· If a new State emerges after secession, it must apply for membership.

Дата добавления: 2015-11-16