9-16 Flashcards
Meaning of State Succession
- StateSuccession efers to the substitution of One State by another over a territory. = transfer of rights and duties from one international person to another in consequence of a territorial change.
- ## According to the vienna convention= state succession is the replacement of one state by another in the responsibility for the international relations of that territory
circumstances of state succession
Decolonization of all or part of an existing territorial unit= nation partly or completely overcomes itself from the holding of a superior nation = india independence from UK
The dismemberment of an existing State: teritory of predecessor state becomes territory of 2 or more new staes exampe= USSR collapsing into russia armenai azerbaijan etc
Secession: This refers to a situation where a part of the State decides to withdraw from
the existing State. Timor-Leste succeeding from Indonesia
Annexation: This refers to a situation where a State takes possession of another State. USSR annexing Baltic republics in 1939
○ Merger: Unification of Southern German States with Prussia to form Germany after the Franco-Prussian War
1) Universal Succession
aka total succession, entire identity of the parent State is destroyed.
can occur in cases of :
1. Voluntarymerger
2. Annexation
3. Subjugation
Oppenheim states that when a state breaks up into parts which either become separate
international persons of their own or are annexed by surrounding international persons is also a case of universal succession.
thesuccessor state succeeds not to all the rights and obligations of its predecessor but only to a part thereof. Thedissolution of Czechoslovakia is an example of universal succession. The new States of the Czech Republic and Slovakia are both successor States
Partial Succession
When a part of the territory is severed from the parent state and personality is affected only to the extent to the extent by which the territory is transferred- partial succession. takes place, either by secession, i.e separation from parent state, or by cession, or by conquest and annexation. eexisting States continued with their legal obligations and duties while the new States
got their own recognition and carried no rights or duties of the parent States.
ex: Pakistan and bangladesh where pakistan retained
Theories of State Succession
Theories of State Succession
1) Universal Succession Theory
2) Continuity Theory
3) Organic Substitution Theory
4) Self Abnegation Theory
5) Negative Theory
6) Communist Theory
Universal Succession Theory
the rights and duties of the old State i.e., the predecessor State pass on to the new State i.e., the successor State upon succession without any exceptions and modifications.
- The Successor State enjoys all the rights and discharges all obligations of its predecessor.
-
The new state is regarded as the direct heir of its predecessor’s personality in the same way as
the heirs continued the personality and legal relations of the deceased in private law.
Two justifications - ○ First, that the State and the Sovereign gain all their power from God and a mere change in Government shouldn’t cause any change in the powers.
○ Second, it is permanent and nothing can cause it to secede.’
been criticized by scholars from the world due to its Roman law analogy, a poor distinction
between succession and internal change in governments, etc
Continuity Theory
Political personality: It basically refers to the rights and obligations of the State towards the government.
○ Social personality: lt basically refers to the territory and the population of the State.
upon succession, the political personality gets changed whereas the social personality remains intact.a State succession would not alter the rights and duties of the populace
Organic Substitution Theory
the rights and duties of the State continue even after succession by
another State.
The factual element of the people and the territory have an organic bond i.e., the bond between the people and elements of State and upon succession by a new sovereign, the organic bond remains intact and only the juridical element changes.
- the substitution of a
successor State in the personality of its predecessor State. But, just like the other theories, this
theory too has had no practical application and has been criticized for the same
Self Abnegation Theory
the successor State agrees to observe the rules of international law and performs the obligations towards other States created under them.
this theory considers that the performance of the international obligation, is merely ‘moral duty’ of the successor State, but at the same time it gives the right to the other States, to insist upon the successor State to perform the existing obligation.
- If the successor State refuses to accept, the other States may even withhold its recognition or make the recognition conditional upon the acceptance of the predecessor’s commitment towards them
Negative Theory
- the successor State doesn’t absorb the personality of the predecessor State in its political and economic interests.
- Upon succession,the new State is completely free of the obligations of the predecessor State.
- Successor state starts its life in the form of the clean state principle, and is free from incumberances of the predecessor sovereign
CRITICISM:
ccording to this theory succession involves a replacement of sovereignty, it should not mean that International Law imposes no obligation upon the new sovereign. Change does not mean automatic collapse of legal system, there are
certain rights as well as obligations which are discharged by successor state.
6) Communist Theory
- a successor State is burdened by
the economic and political commitments of the predecessor and is bound to adhere to the commitments of predecessor state
= Political commitments involve peace, war and territorial treaties and agreements while
economic commitments include any amount of money borrowed or lent.
contrary to the Negative Theory of State Succession and unlike the Negative Theory, it doesn’t free the successor State from the obligations of the predecessor State.
concept of intervention
every state has right to manage their own affairs including having a legal domain of autonomous jurisdiction. this is state sovreignity. the right of state sovreignity puts a correspondign duty on other states of NON-interference in the matter of other states. however humanitatrian law states that AID activities are not considered interference.
other state.
● The UN Charter probits intervention in Article 2
- all members shall refrain from threatening use of force against territorial integrity or political independence of any state
- basically not allowing intervention in domestic jurisdiction of another nation
- but the un charter gives authority to the UNSC to decide when to intervene
- UNSC can only intervene when it can establish that there is an existence of any threat to peace or an act of agression
- The Council is also authorized to use force and may decide that an international armed intervention is necessary to make the State in question stop its activities
Intervention by invitation/request
- IF STATE acts on basis of request of another state by treaty or by govt request it is not deemed as intervention- request for assistance and stuff should be made by the governemnt based on the argument that the govt is the agent of the state and can invit troops and assistance
- Outside assistance cannot be requested by a government which does not represent the state nor
command the obedience of the population
Types of intervention
Military Intervention: takes place through the use of armed forces and may take the form of
military occupation of other states’ territories, naval blockade, etc
● Subversive intervention: denotes propaganda/other activities by one state with the intention
of fomenting, for its own purposes, a revolt/civil strife.
Economic intervention: economic intervention in the form of blockade, sanctions, seizure of
assets, etc.
Diplomatic intervention: includes communication of threatening use impling possible use
of military/other coercive measures
grounds of intervention
1) Self-Preservation and Self Defence
- right of self-preservation is more sacred than the duty of respecting the independence of other States. intervening in self defence can be justified due to necessity and ordinary means of self preservation have been exhausted
- Implies that as long as the state has not been attacked by armed forces, it is prevented from exercising the right of self-defence.
2) Enforcement of Treaty Rights
A State is justified in interfering in the a airs of another State if the provisions of any treaty oblige the former to preserve the independence or neutrality of the latter.
the United Kingdom intervened against Germany when it
breached Belgium’s neutrality and attacked it in order to avoid French defences. Under the 1839 Treaty of London, Germany, Great Britain and France were solemnly bound to respect and to defend the neutrality of Belgium.
3) Grounds of Humanity - States have used noble motives for centuries to justify armed intervention into the domestic a airs of other States. Such justi cations include the defense of human rights, minorities, and
their own nationals. Eg: US Invasion of Iraq in 2003.
4) Balance of Power
● Balance ofPower suggests that states may secure their survival by preventing any one state from gaining enough military power to dominate all others. The aim was to ensure that no one nation/bloc became powerful enough to topple the other. it is not really a legitimate ground for intervention
5) Protection of Persons and Property
A state’s right to protect its citizens abroad, where they are wrongfully treated may justifiably lead to intervention in order to secure their proper treatment. 1956, when UK and France intervened during the Suez Crisis on the plea that they were doing so to protect their nationals and safeguard the Suez Canal, it was met by general criticism
by the international community.
Case Law: Nicaragua v. United States of America
- the circumstances in which humanitarian aid can constitute an interference and as such an unlawful intervention into the internal affairs of a State
- The court found that the support given to the military and paramiltary activities to the CONTRA rebels was not humanitarian aid and breaches principles of non-intervention and amounted to intervention.
it stated that the usa did not participate in armed attack as:
1. it was not an action by regular armed forces across the border
2. it did not send any groups of mercinaries which carried out acts of armed force
UNSC on intervention
- UNSC must rst determine the existence of any threat to the peace, breach of the peace, or act of aggression. then it can make reccomendations or decide meaures
- UNSC may take economic actions to give effect to its decisions
- if the measures are still inadequate it is empowered and may take actions necessary by air sea or land forces to maintain intl security and peace
Responsibility to Protect- R2P
1. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity,
2. international cimmunity also have the responsibilty to offer assistance to protect populations from genocide ethnic cleansing etc
3. If a state is manifestly failing to protect its populations, the international community must be prepared to take appropriate collective action, in a timely and
decisive manner and in accordance with the UN Charter
Libya na dun intervention
Libya
○ Inearly 2011, during the Arab Spring. Libyan security forces killed approximately 200
protestors in 3 days, which provoked escalation of an armed uprising. The militants
initially made progress, but after a month Libya’s security forces were poised to capture
the last rebel stronghold of Benghazi to end the war.
○ Tocoerce the rebels to surrender or retreat, Libya’s government threatened to show no
mercy to any whoremainedde ant.
○ The rebels responded by persuading the international community that a bloodbath
against civilians was imminent, which some expert question in retropect.
○ UNSC resolution 1973 created a no y zone and authorised members states to all
necessary measures to protect civilians.
○ NATO exceeded the mandate, pursuingregimechangebybombinggovttargetswhile
imposing an embargo. Though in the short term it prevent the government from
targetting rebels, its downfall led to a wider civil war and destablised the region,
proliferating civil war in Mali and allowing ISIS to get involved
Extradition
Extradition may be defined as surrender of an accused or a convicted person by the State on whose territory he is found to the State on whose territory he is alleged to have
committed, or to have been convicted of a crime.
2 state parties=
○ the territorial State, i.e., a State where an accused or a convict is found, and
○ the requesting State,i.e., a State where the crime has been committed.
- Requestis made normally through the diplomatic channel.
PURPOSE-
1. supression of crime
2. deterrent to effect escape
3. towards the achievemnt of international cooperation
typically extradition is based on reciprocity
Extradition is governed by international treaties, bilateral or multilateral, enshrining the principle, nulla extradition sine lege (no extradition without a law),
preocess of extradition
- state seeking surrender of person= puts in a formal extradition requestand must identify the wanted and the offence imputed on the person
- requesting State is required to submit certain documents in support of the request.
- formal extradition request may be preceded by a provisional arrest warrant
- Principle of comity of nations requires that each Member State must comply with a request from a court or prosecutor of another Member State for the execution of arrest warrant of an offence which has minimum 12 month imprisonment
Principles Governing Extradiction
1) Doctrine of Double Criminality= the crime must be an offence in both the states, the requesting state (obviously) and the territorial party as well
-Helps to request state to enforce its criminal law
○ And to the territorial state in the sense that rule protects it from fugitive criminal
2) Doctrine of Speciality= a fugitive may be tried by the requesting State only for that offence for which he has been extradited.
once extradited, the state is under duty to not punish them for any other offence.
In certain cases, the territorial state can agree to the fugitive being tried for other offences as well
\The rule has been made to provide safeguards to the fugitives against fraudulent extradition and to prevent blanket extradition requests
United States v. Rauscher
UnitedStates v. Rauscher
○ accused was extradited on the charge of murder, but he was tried and convicted in
U.S.A., on a minor charge of causing cruel and unusual punishment on a member of
the crew.
○ made an appeal on conviction and Supreme court ordered the release of the prisoner on the ground that unless otherwise provided for by the treaty, the prisoner be charged with the offence for which he was extradited unless he was given a prosecution is reasonable time to return to the country which surrendered him.
Political Exception
- political offenders are not to be extradited
- Therule is based on theelementaryconsideration of humanity. No State would like to extradite a person if he is not a criminal
- If political offender sare extradited, it is feared that they would not be treated fairly.
- Circumstances where fugitives cannot seek protection of being the political exception:
- acts of terrorism even if they are committed with political motives.
○ Genocide, conspiracy to commit genocide, direct/indirect public incitement to commit genocide or complicity in genocide.
○ Hijacking, torture, hostage taking, injury to diplomants and grave breaches of Geneva Conevtjions on the law of war and armed conflicts
things to be considered when granting extradition request:
- vilation of human rights a possibility in Requesting state
- principle of relative seriousness of offence- 1 year imprisonment minimujm
- reciprocity
- existence of prima facie case
- Principle of Proportionality- the sentence should not be excessively harsh
- Possibility of fair trial
what is asylum and its basis
- when a territorial state declines to surrender a person to the requesting state and provides shelter to the fugitive
- needs 2 conditions:
- Firstly, shelter, which is more than a temporary refuge; and
○ secondly, a degree of active protection on the part of the authorities in control of the territory of asylum
no convention has been created to regulate this, the topic at present is governed mainly on the basis of the state practice and judicial decisions.
● state has right to grant asylum on basis that it has a Sovereign right to control over the individuals found on its territory, however The present trend is that States are under a duty not to grant asylum to those who have
planned, facilitate or committed terrorist acts.
Corfu Channel case: asylum
‘asylum may be granted on humanitarian grounds in order to protect political o enders against
the violent and disorderly action of irresponsible sections of the population. protects the political offender against extra-legal measures and thus asylum was granted to protect for preventing other human rights violations.
is asylum a right?
● Universal Declaration of Human Rights under Article 14 (Para 1),
everyone has a right to seek and to enjoy in other countries asylum from persecution’.but states are not legally bound to provide it and the right to grant asylum is the prerogitive of th estates
types of Asylum
Territorial Assylum- Itis granted when the state provides asylum to asylee within its territory.
the Declaration on territorial asylum provides that if any state feels overburdened in providing asylum to the people then States shall either individually or through the United Nations help that particular to
lighten the burden.
Extraterritorial Asylum
State declines to surrender a person demanded who is not upon its own physical territory but is upon one of its public ships lying in foreign territorial water
Diplomatic Asylum- It is granted when the state provides asylum in the Embassies, foreign legations, and
consular premises
this type is not a recognised form typically because it is seen as the sovereign power of host country is being interfered with and it violates the diplomatic or consular immunity. the mission head must grant the requesting party the right to enter the premises.
only allowed in cases of emergency if 1. immediate physical threat of violence , 2. in case of special treaty between the states
US and Cuba entered into a consular convention in 1926 whose Article provides that a Consular officer will have to hand over the individual to whom asylum has been provided in the consular office.
Colombiav.Peru asylum
peru national who was political leader mr Victor Torre, was accused of instigating military rebellion and was granted asylum by colombian embassy at Lim. case went to ICJ:
■ Diplomatic asylum is the derogation of territorial sovereignty and it should not be recognized unless in each case a legal basis is established.
■ The state providing such a grant must prove that it has the right to grant diplomatic asylum and it should be respected by the territorial State.
■ The Court also observed that there is no international treaty related to Diplomatic Asylum, only Latin American and Central American countries have such rights
: Indian View on Extradition
covered by both domestic and bilateral treaties
=Extradition Act 1962= in case of foreign states with no express extradition agreements
sec 4= Requisition for surrender, this request is to be made through diplomatic channes and to contain certified copy of arrest and offence commited, relevant provisions of the treaty etc
Section 5: Order for magisterial inquiry - central gov checks if fugitive is liable to be surrendered to foreign state
Section 6: Issue of warrant for arrest, once central gov is satisfied and this warrrant may be executed by any police officer through india
Section 7: Procedure before magistrate
○ once fugitive is arrested, he will be brought before a magistrate and will have the opportunity to show cause why he should not be surrendered
then under sec 8- he will be surrendered
sec 31= restrictions on surrender
- if the extradition request is no tmade in accordance with the treaty
- if the offence for which the request is made is not an extraditable offence
- the fugitive is national of india
- fugitive is beign convicted and prosecuted for same offence
- stradition request is for political reasons
