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vustudents
09-06-2012, 07:14 PM
Q. Only one of the following statement is correct. first identify the correct answer and then elaborate and discuss the correct statement.
(a) "State succession" means forceful retaliation by a state against the acts of aggression of another state."
(b) "State succession" means to destroy a state first then to help reconstruct/ restructure according to the requirement of the master state.
(c) "State succession means the replacement of one state by another in the responsibility for the international relations of the territory.
(d) "State succession" means the handing over the accused/ convict from one country to the jurisdiction of a demanding state." (2002)
Q. Define the term 'state' and what do you known about the term "state succession".
1. Introduction:
The central theme of the international law is the state. according to same jurists the state is the only subject of the international law.
D. J Lathem Brown in his book "Public international law" says that ordinarily international law deals with the rights and obligations of the states. moreover international law is defined as a system of law composed solely of rules governing the relation between the states. the state occupies the most place among all social institutions. state works for the common interest of the people.
2. Definition of state:
According to Phillimore:
"The state is a people, permanently occupying a fixed territory bound together by common laws, habits and customs into one body politic, excercing through the medium of organized government independent sovereignty and control over all persons and things within its boundaries, capable of making war and peace and of entering into all international relations with the communities of the globe."
According to Prof. Laski:
"State is a territorial society divided into government and subjects and claiming with in the allotted physical area, supremacy over all other institutions."
According to Lawrence:
"State is a political community, the members of which are bound together by the tie of the common subjection to some central authority, whose commands the bulk of them habitually obey."
According to Holland:
"State is assemblage of human beings organized for law, generally occupying a certain territory."
3. Features or characteristics of elements or requisite conditions of the state:
I. Population:
It is a human association. there must be certain number of people. an uninhabited tract of land cannot be called a state.
II. Government:
Government is the machinery or agency through which the will of the state is formulated and expressed. government rule according to the law of the law.
III. Sovereignty:
Sovereignty is the supreme, original and unlimited power exercised over all person within the boundaries of the state, independent of every outside power.
IV. Territory:
There must be territory in which the people have settled down. the state is territorial association. its membership is confined to the people living in its territory.
4. Kinds of state:
The main and important kinds of states are as under.
(a) Confederation.
(b) Federation.
(c) Condomonium.
(d) Vassal state.
(e) Protectorate state.
(f) Trust states.
(g) Neutralised states.
(i) Micro states or Lilliputian states.
5. Concept of state succession:
The term state succession is used when there is transmission of rights and obligations of one state to another in consequence of change of territorial sovereignty.
(i) Time of occurrence:
State succession is occurred when a state ceases to exist or a new state is formed within territory of an existing state is formed within territory of an existing state or territory is transferred from one state to another state.
6. Definition of state succession:
Under article 2 Vienna convention:
"Succession of state is the replacement of one state by another in the responsibility of international relation of territory."
According to Openheim:
"A succession of international persons occurs when one or more international person, in consequence of certain changes in the letter's conditions."
According to Brownlie:
"State succession arises when there is definite replacement of one state by another in respect of sovereignty over a giver territory, in confirming with international law."
7. Origin of state succession:
Rule of state succession was incorporated from the roman law by Grotious. in roman law when a person dies his rights and duties are succeed by his successor.
8. Kinds of state succession:
I. Universal succession:
If the legal identity of a community is completely destroyed it will be called universal succession. it takes place when one state is completely absorbed in another state either through subjugation or voluntary merger.
II. Partial succession:
If the territory is lost while personality and legal responsibility remain unimpaired, the process is described as partial succession. it takes place when a part of state revolts and after achieving freedom becomes a separate international person.
9. Theories of state succession:
I. Universal succession theory:
According to universal succession theory all the rights and duties of the predecessor pass I P S O jure to the successor as element of the estate. the successor state enjoys all rights and discharges all obligations of its predecessor.
II. Continuity theory:
According to continuity theory succession is substitution plus continuation. the successor steps into the place of the predecessor and continues his rights and obligations so for the succession of private the political obligations of predecessor state.
III. Negative theory:
According to negative theory the succeeding state is in no way bound to respect the rights and obligation of the state which has ceased to exist. so the successor state does not succeed to the personality of the predecessor.
IV. Communist theory:
According to the communist theory the state is unencumbered by the economic and political commitment of the predecessors.
10. Rights and duties arising out of the succession:
Following rights and duties arise in case of the state succession.
(i) Political rights and duties:
In case of state succession no succession take place in respect of political rights and duties. so the succeeding state is not bound by the treaties of the former state.
(ii) Local rights and duties:
A genuine succession takes place in respect of local rights and duties. in respect of land, river, roads, etc the succeeding state succeeds the rights and duties of the former state.
Case law
German Settlement in Poland (PCIJ 1923)
"It was held that private rights do no come to end by the change of sovereignty.
(iii) Public debts:
It depends on the discretion of the succeeding state whether to pay the public debts of the former state.
(iv) Contracts:
Law relating to the contracts on succession of a state is not well established state practice suggests that succession of contracts depends upon the discretion of the succeeding state.
(v) Concessionary contracts:
Concessionary contracts mean the contracts through which certain concession are granted through contracts. the succeeding states may or may not be bound by such contracts.
(vi) Damages for the torts:
No succession takes place in respect of unliquidated damage for tort.
(vii) Nationality:
The nationals of the former state lose their nationality and become nationals of the new state. generally certain period is granted to the people to decide about their nationality.
(viii) Laws:
As far as laws of the former state are concerned, they continued to operate until amended or changed.
(ix) Succession to property in foreign states:
As regard the succession of property in foreign state jurists are of the view that succeeding state becomes the successor of such property.
(x) Loss of international personality:
If a state emerges into or is subjugated by another state, it losses its international personality.
(xi) Public property, funds and succession to funds:
When one state succeeds defacto to another it succeeds to all public and proprietary rights of the extinct state.
(xii) Private rights property under Muslim law:
The private of individuals and their relation to each other, unless specially altered remains the same and the private property is not generally confiscated in breach of inter law.
11. Parts of state:
Following are the parts of state.
(i) Boundaries:
(a) National boundaries.
(b) Artificial boundaries.
(ii) Rivers:
(a) Nation rivers.
(b) International law.
(c) Boundary rivers.
(d) Non national rivers.
(iii) Cannals:
(iv) Territorial or maritime belt:
(v) Internal waters:
(a) National water
(b) Territorial water.
(vi) Contagious zone
(vii) Bays s gulfs.
(viii) Straits
(ix) Continental shelf
(x) Air space
12. Conclusion:
To conclude it can be said that state is a community of people occupying a definite territory organized under a government which in its territory. when there it transmission of rights and obligation of one state to another in consequences of change of territoral sovereignty it is called state succession.