Hostname: page-component-cd9895bd7-lnqnp Total loading time: 0 Render date: 2024-12-25T08:17:38.724Z Has data issue: false hasContentIssue false
  • English
  • Français

The Succession of States

Published online by Cambridge University Press:  04 May 2017

Amos S. Hershey
Get access Rights & Permissions [Opens in a new window]

Extract

When one state takes the place of another and undertakes a permanent exercise of its sovereign territorial rights or powers, there is said to be a succession of states. This succession may be called universal in case of total absorption, whether through voluntary agreement, forcible annexation or subjugation, the division of a state into several international persons, or the union of several states into a single international person. Universal succession may also be said to exist where a state is broken up and divided among several previously existing states, as in the case of the division of Poland between Kussia, Prussia, and Austria.

Type
Research Article
Information
American Journal of International Law , Volume 5 , Issue 2 , April 1911 , pp. 285 - 297
Copyright
Copyright © American Society of International Law 1911

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 On the meaning and propriety of this phrase, see note at the end of this article.

2 Mr. Adams, Sec. of State, to Mr. Everett, Aug. 10, 1818. 1 Moore, Digest, p. 334.

3 This principle extends to the case of an extinguished government. “It was applied by the English courts to the cotton in England belonging to the Government of the Conferedate States, which was held to pass by their overthrow to the United States, subject to such right of account against the latter as the holders of it would have had against the former.” 1 Westlake, p. 75. See the United States v. Prioleau (1866), 2 H. & M. 563, and Scott, Cases, 85; United States of America v. McRae (1869), L. R. 8 Eq. 69; and the King of the Two Sicilies v. Wilcox (1851), 1 Sim. N. S. 301, 327-36.

An exception to the application of this principle exists where a loan has been contracted for the purpose of the war which results in extinction or absorption. 1 Westlake, p. 78.

4 The famous case of the Texan bonds is only an apparent exception to this rule. When Texas was admitted to the American Union in 1845, the power to lay and collect customs duties passed to the United States. It was agreed that the vacant and unappropriated lands within its limits were to be retained by the State and “applied to the payment of the debts and liabilities of the Republic of Texas; and the residue of the lands, after discharging the debts and liabilities, were to be disposed of as the State might direct, but in no event were said debts and liabilities to become a charge upon the Government of the United States.” 5 U. S. Statutes at Large, 798. Cited by 1 Moore, p. 343. Subsequently, in 1850, the United States took over a portion of these lands, and in return for this and other considerations, the United States agreed to pay to Texas $10,000,000, but stipulated that five millions thereof should remain unpaid until the creditors holding Texas bonds for which duties on imports had been specially pledged, should file releases of all claims against the United States.

In 1854, before a final settlement was made, a British holder of a Texan bond brought a claim against the United States for the payment thereof before a mixed commission which had been instituted for the adjustment of claims between the United States and Great Britain. The British and the United States commissioners gave diametrically opposed opinions. The umpire, Mr. Joshua Bates, an American citizen, decided that the commission could not entertain the claim, apparently for lack of jurisdiction.

Whatever the merit of this decision, there can be no reasonable doubt that the United States was bound in equity to pay these bonds. As Dana (note 18 to Wheaton) has well said: “It certainly would not be satisfactory to say that the United States discharges its obligation to the creditors of Texas, to whom her customs were pledged, by paying only the amount of the customs received.”

In 1855 Congress passed an act providing that, in lieu of the $5,000,000 payable to Texas in 5 per cent, stock under the Act of 1850, the Secretary of the Treasury should pay to those creditors of Texas who held bonds for which the revenues of the Republic were pledged, the sum of $7,500,000, to be apportioned among the holders pro rata. See 1 Moore, p. 347.

On the Texan Bond Controversy, see especially 1 Calvo, § 101 ; * Dana’s Wheaton, note 18; Lawrence, 1 Commentaire, pp. 211 ff. ; Magoon, Law of Civil Government under Military Occupation, 190-191; * 1 Moore, Digest, § 97, pp 343-47; * 4 Moore, Int. Arbitrations, pp. 3591-94; Scott, Cases, 94-96 n.; Snow, Cases, 18-20; 1 Westlake, 77, 78; Ullmann, 132 n.

5 The extent of territory and number of the population have also been suggested. These have in a few cases furnished the basis of the division, but they furnish very crude and unsatisfactory criteria.

6 E. g., Despagnet, Cours, etc., p. 99 ; 1 Piédelièvre, p. 127 ; 1 Rivier, pp. 72 ff.; 1 Westlake, p. 67 n.

7 1 F. de Martens, Traité, etc., p. 369.

8 Ullman (2d ed.), p. 132. Cited by 1 Westlake, p. 67 n. Ullman cites Bluntschh, Art. 50, and 1 Calvo, § 100, in favor of this opinion — a view which he hinv self seems to share in spite of his criticism of it as being “much too elastic.” He claims that the annexing state succeeds to the legal order (Rechtsordung) of the incorporated state, but admits that, in deciding on the question whether such treaties shall be maintained”, it (the absorbing state) takes its own interests into account.

9 See infra.

10 It is often claimed that this is also the case with debts which are secured by the assets, revenues, or resources of the ceded provinces or of an insurgent or belligerent community which has won its independence. But the rule would certainly not apply to a loan thus secured which had been contracted for general purposes or for the special purpose of waging the war or crushing the rebellion resulting in cession or independence.

The United States in 1898 refused to assume in behalf of Cuba any portion of the so-called Cuban debt for the payment of which the Cuban revenues were pledged on the ground that it consisted of a “mass of Spanish obligations and charges,” and was “in no sense created by Cuba as a province or department of Spain or by the people of the island.” This debt had been mainly contracted “for the purpose of supporting a Spanish army in Cuba,” and the creditors “took the chances of the investment” with a full knowledge of the risks involved. “ From no point of view can the debts above described be considered as local debts of Cuba or as debts incurred for the benefit of Cuba.” 1 Moore, Digest, § 97, pp. 351-355. The citations given above may be found on pp. 352, 357, 358, 367, and 368.

There can be no question that the United States acted wisely in refusing to assume for her protegé the major portion of this debt, but Cuba would seem to have been liable in equity for such a portion of the loan as had been spent on internal improvements, such as railways, harbors, etc. See an interesting article contributed by Von Bar to the German periodical Die Nation for April 22, 1899. Cited by 1 Westlake, p. 79 n.

On the Cuban and Philippine Debts, see Magoon, Law of Civil Government under Military Occupation (p. 187), for a citation from an article by Hon. Whitelaw Reid contributed to the Anglo-Saxon Review for June, 1899. Mr. Reid says: “Warned by the results of their inquiry as to the origin of the ‘Cuban Debt,’ “and having” learned that over one-fourth of the Philippine Debt had actually been transferred to Cuba to carry on the war against the Cuban insurgents,” the American commissioners at Paris abandoned all idea of assuming the so-called “Philippine Debt.” But the United States paid to Spain the sum of $20,000,000 for the cession of the Philippine Islands — an amount which was at least equal to the face value of that debt.

The views of Le Fur on this subject (see 6 Revue de droit int. public (1899), 615 ff.), are so obviously prejudiced that they are unworthy of serious refutation.

The Spanish commissioners made much of tie fact that the Spanish-American Colonies had assumed their local debts (see 1 Moore, pp. 342, 343, 355) ; but the circumstances were very different, and “ historically we know that the assumption of said obligations was a price paid by said colonies for independence and recognition of sovereignty.” Magoon, op. cit., p. 188.

There are numerous other historical examples of the assumption of purely local debts (see 1 Moore, pp. 339-423, 361), and it undoubtedly amounts to an obligation in international law.

The following authorities hold that the partial successor should assume a proportional part of the public debt: Bonfils-Fauchille, Nos. 224 ff.; Despagnet, No. 97; 1 Fiore, No. 360; Huber, Nos. 125-135 and 205; 1 Pièdeliévre, Nos. 154 ff.; 1 Rivier, 214; Taylor, § 165; Ullman, § 33. To the contrary may be cited: Bluntschli. art. 47, 48; Hall (5th ed.), 93 n., 98, 99 n.; 1 Halleck (Baker’s 3d ed.) 91; 1 Oppenheim, § 84; 1 Pradier-Fodéré, No. 157.

The “Ayes” thus seem to have it, but it should be noted that a number of them qualify their statement of the law by the use of such phrases as should, it is just and rational, theoretically, etc. This indicates a subjective rather than a positive or objective attitude toward the subject. They evidently endeavor to state the law as they think it should be, rather than as it is — a common fault with Continental publicists.

The main instances of a division of the general public debt prescribed in modern treaties are as follows:

1) The assumption by Sweeden of a part of the Danish debt upon the cession of Norway by Denmark in 1814. 2) The agreement by France to take over a small portion of the national debt of Sardinia upon the latter’s cession of Savoy and Nice in 1860. 3) The apportionment of the Danish debt between Denmark and the ceded duchies upon the annexation of Schleswig, Holstein, and Lauenburg by Austria and Prussia in 1864 and 1866. 4) The assumption by Italy of a part of the Papal debt in 1864. 5) The assumption by Sardinia of three-fifths of the Monte-Lombardo-Veneto debt, and of a part of the Austrian national loan of 1854, by the treaty of Zürich in 1859. 6) The division by the Powers of the public debt of the Netherlands between Belgium and Holland in 1839. 7) The obligations imposed by the Powers upon Bulgaria, Servia, Montenegro, and Greece to discharge portions of the debt of the Ottoman Empire in accordance with the Treaty of Berlin of 1878. But no part of the Ottoman debt was assumed by Russia on account of her acquisitions in Asia. It may be noted that the two latter instances are examples of a division secured through European intervention rather than by conquest or a treaty of cession. For a few more relatively unimportant examples, see Huber, Die Staatensuoeession, No. 127.

Among the important recent historical instances where there was no assumption of any portion of the general debt are those of the cession of Alsace-Lorraine by France to Germany in 1871, and of Cuba and the Philippine Islands by Spain in 1898. The United States did not take over any portion of the British debt upon the acknowledgment of her independence by Great Britain in 1783, nor have any of her various acquisitions of territory been charged with such obligations excepting Texas. The Spanish-American colonies appear only to have assumed their local debts.

12 See supra.

13 Thus, the United States did not share in either the rights or obligations of British treaties after she had achieved her independence. A long and bitter controversy arose in connection with the fishing rights granted by Great Britain in 1783. The United States claimed that the right to fish on the coast of Newfoundland and on the other coasts of the British dominion in North America was merely a recognition of pre-existing and imprescriptible rights and were not abrogated by the War of 1812. On the other hand, the British justly held that these rights were created by treaty and were extinguished by the war. By the treaty of 1818 the citizens of the United States were merely granted the liberty to fish, etc. This constituted a virtual abandonment of the untenable contention that these rights existed independent of treaty stipulation.

On the Northeastern Fisheries, see especially, J. Q. Adams, The Fisheries and the Mississippi (1828); Elliot, The united States and the Northeastern Fisheries (1887); Isham, The Fishery Question (1887); Hall (6th ed.) 94, 95; ‘Lawrence, Principles, § 111; *1 Moore’s Digest, §§ 163 ff.; Dana’s Wheaton, 341-50 and note 142; Wharton’s Digest, §§ 301 ff.; and for the recent decision of the Hague Tribunal in United States v. Great Britain (case of North Atlantic Coast Fisheries) see this Journal, 4:948 (October, 1910).

14 The same rule applies of course to cases of conquest.

15 Griggs, Atty.-Gen., in 1 Moore, Digest, § 93, p. 310. See also 1 Moore, § 95, especially the opinions of Chief Justice Marshall, Lords Mansfield and Ellen-borough on pp. 332, 333.

16 See especially the series of decisions known as the “Insular Cases” decided by our Supreme Court in 1901. In the leading case of De Lima v. Bidwell (182 U. S. 1 ), it was hejd that Porto Kico was not a foreign country within the meaning of the tariff laws after its cession, but a territory of the United States. Consequently, the Dingley Tariff Act of 1897, which was exclusively applicable to foreign countries, did not apply to Porto Rico. See also Fourteen Diamond Rings v. United States (183 U. S. 176), which applied the same doctrine to the Philippine Islands. In Downes v. Bidwell (182 U. S. 244), it was held that Porto Rico “is a territory appurtenant and belonging to the United States within the revenue clauses of the Constitution; that the Foraker Act (of 1900) is constitutional, so far as it imposes duties upon imports from such islands.” In Dooley v. United States (182 U. S. 222), it was held that duties upon imports from the United States to Porto Rico prior to the ratification of the treaty of peace was lawfully collected under the war power. It is a remarkable fact that the decision in each case represented a bare (but not always the same) majority of one, the vote of the judges standing five to four.

On the Insular Cases, see especially 1 Moore, § 94, and Scott, Oases, 667-674 (including note on p. 674). For further references, see 1 Moore, p. 331.

For other cases showing the effect of a change of sovereignty on laws, see Beale, Cases on the Conflict of Laws (1909), 65-84. See also Scott, 104-116.

17 Chief Justice Marshall, in the leading case of United States v. Percheman (1833), 7 Peters, 61, 86, and (in abridged form) Scott, 95. Our great chief justice also stated that even had the treaty by which Florida was ceded to the United States contained no stipulation safeguarding the property of individuals, their property rights would have been unaffected by the change. In United States v. Soulard (4 Pet. 511), he had remarked apropos of the cession of Louisiana that “the United States, as a just nation, regards this stipulation (viz., that the inhabitants of the ceded territory should be protected in the free enjoyment of their property rights) as the avowal of a principle which would have been held equally sacred, though it had not been inserted in the contract.” For the citation of numerous other cases and expressions of official opinion on this subject, see 1 Moore, § 99.

18 Magoon, The Law of Civil Government and Military Occupation, 305-15, 463-71, 541-45, etc. The rights of property secured by copyrights and patents acnuired by Spaniards was specifically protected by Art. XIII, of said treaty. 1 Moore, p. 427.

19 Magoon, 194-209 and 454 ff. See also 1 Moore, § 99, pp. 425-29, and the eases of Sanehes v. United States (1907), 42 U. S. Court of Claims, 458; s. c, on appeal, U. S. Sup. Ct., Feb. 21, 1910, this Journal, 4:463; the Countess of Buena Vista v. United States (1908), U. S. Rep. (see also this Journal, 2:678-88). For criticism of these decisions, see Bordwell in this Journal, 3:119-136.

20 See especially Despagnet, Cours, No. 99; 1 Piêdiliévre, No. 161; and 1 P.-Fodéré, No. 161.

21 Such provisions were contained in the treaties of Campo Formio (1797), Paris (1814), Zurich (1859), Paris (1860), London (1864), Vienna (1864), Frankfort (1871), and Berlin (1878). The various treaties by which the United States acquired Louisiana, Florida, and Texas contained similar stipulations. But these provisions have been ignored in several recent cases oí cession or conquest, viz., by France in Madagascar (1896), by the United States in the treaty of Paris (1898) with Spain, and by Great Britain in South Africa (1900). 1 Moore, § 98, pp. 385-80; and Gidel, Des Effects de l’annexation sur les concessions (1904), ch. 11.

The United States, of course, acknowledged the validity of Spanish contracts and concessions in Cuba, Porto Rico, and the Philippines which were of a purely local nature or in the exclusive interest of the inhabitants of these islands (1 Moore, p. 406); but it refused to admit a legal obligation to continue payments to the Manila Railway Company, which was a concession with a guarantee of eight per cent, granted by Spain partly in the imperial and partly in the local interest. See 1 Moore, § 98, pp. 395 ff., and Magoon, op. cit., pp. 177 ff. See also Magoon, pp. 529-31 for the opinion of this law officer that the United States was not legally bound to continue the payment of the Spanish subsidy to a telegraph company in the Philippine Islands.

The Transvaal Concessions Commission of 1901, which was appointed by the British Government to inquire into concessions presenting examples of mixed public and private rights granted by the South African Republic, declared: “It is clear that a state which has annexed another is not legally bound to any contracts made by the state which has ceased to exist, and that no court of law has jurisdiction to enforce such contracts if the annexing state refuse to recognize them.” In commenting upon these dicta, Westlake (I., pp. 81, 82) observes: “The latter dictum is true, since courts of law are bound by the will of the sovereign power of the country, whether that will be just or unjust. The former dictum * * * is to be explained by the narrow meaning which the commissioners evidently attached to the term ‘legal’ * * * ” The Commissioners add : “But the modern usage of nations has tended in the direction of the acknowledgment of such contracts.” And, with certain reservations, England appears to have acted on this principle.

In the cases which were brought up for judicial determination, the British courts declined to assert jurisdiction on the ground that annexation was an act of state, and they held that municipal tribunals lacked authority to enforce contractual obligations alleged to have been incurred by an adversary. The leading cases are those of Cook v. Spring (1899), A. C. 572; and the West Rand Central Gold Mining Co. v. The King (1905), 2 K. B. 498; this Journal, 1:217. See Colonial Cases Relating to the Succession of States in 3 Zeitschrift für Völkerrecht (1909), 618-20, and Westlake in 17 Law Quar. Rev. 392 ff.

22 1 Fiore, Nouveau Traité, etc., No. 356, p. 313.

23 See on this point the instructions of Secretary Root in 1 Moore, pp. 392 ff.; and Magoon, 595 ff.

24 2* For the exceptions, see Report of the Transvaal Concessions Commission in 1 Moore, § 98, pp. 411-14; and Gidel, Des Effets de Vannexation sur les concessions (1904), chs. 7-10.

25 The authorities are very much divided as to the meaning and propriety of the phrase “succession of states.” Several (e. g., Gareis, | 16, pp. 59 ff. and Zorn, 32, 77) even deny that it ever takes place, and one (Liszt, § 23) only admits it in a few cases. Others maintain that it is a pure fiction or metaphor, whether useful or otherwise. But the majority accept the doctrine of succession either in pure or in a modified form.

The Roman idea of succession upon death as the continuation of the person of the deceased by the heir was introduced into the law of nations by Grotius who said : “It is undoubted law that the person of the heir, in respect to the continuation of public as well as private ownership, is to be conceived as the same with the person deceased.” (Lib. II., cap. 9, § 12.) This view was adopted by Pufendorf and Vattel, but denied by the commentator Coccejii, who claimed that the Grotian doctrine of succession was a fiction based upon a principle of Roman private law which is inapplicable, in all its content, to international public law. On the views of Coccejii, see Gidel, op. cit., pp. 35 and 57 ff.

Among the publicists who hold more or less strictly to the Grotian doctrine of succession are Despagnet, Nos. 90 ff.; Hall, 99; 2 Halleck, 495; 1 F. de Martens, § 67, pp. 368 f.; and 1 Rivier, 70 ff.

The following authorities are among those who hold to the doctrine of succession in modified form: Bluntschli, Arts. 50, 54, and 55; 1 Calvo, §§99 ff.; 1 Fiore, No. 355; Heffter, §§ 25; 1 Oppenheim, §§ 80 ff.; 1 P.-Fodéré, Nos. 158 and 160.

Among the publicists who evidently consider the phrase “succession of States” a mere fiction or metaphor are Appleton, Gabba, and Gidel who have produced valuable monographs on this important subject. But Huber, the most important of them all, does not hesitate to use the phrase “Staatensuccession” as the title of his remarkable work. It must be admitted that these monographs are, for the most part, highly abstract and theoretical, and that their conclusions are often at variance with international practice. Thus Appleton (p. 51) holds that the annexed or extinguished state still continues to exist in spite of its loss of sovereignty; and Gidel (chs. 3 and 4) bases his theory of “continuity” upon the right of the occupant. He claims that cession is a recognition rather than a source of rights. The views of Max Huber, although highly abstract, are more reasonable and largely based upon a study of international practice. He declares (p. 18):

“The notion of succession is a general one in law, and belongs exclusively neither to private nor to public law. Succession is a substitution plus continuation. The successor steps into the place of the predecessor and continues his rights and obligations; so far the succession of private and public law agree. But we now have to distinguish between those kinds of succession. A civil successor who steps into the place of his predecessor steps into his rights and obligations as though he were himself the predecessor. That is the universal succession of private law in the human sense, at least according to the prevailing doctrine. But the successor of international law steps into the rights and obligations of his predecessor as though they were his own.” Cited and translated by Westlake, I., p. 69.

For an excellent review of the authorities, see Gidel, Des Effets de Vannexation sur les concessions (1904), ch. 2.

On the Succession and Extinction of States, see Appleton, Des Effets de l’annexation sur les dettes de l’état démembré ou annexé (1895); Bluntschli, Arts. 46-61; Bry, Nos. 56-72; * Bonfils (Fauchille) Nos. 214-233; Cabouat, Des annexations de territoires et de leurs principales consquences (1881); 1 Calvo, §§ 99-106; 6 Despagnet, Cours, etc., Nos. 86-102; Field, Arts. 22-26; * 1 Fiore, Nos. 348-366; Gabba, Questioni di diritto civile (1886); Gareis, § 16, pp. 59 ff.; * Gidel, Des effets de Vannexation sur les concessions (1904) ; Grotius, liv. II., cc. 9 and 10; * Hall (5th ed.), 91-99; 1 Halleck (Baker’s 3d ed.), 90-92; Hartman, §§ 12-13; Heffter, §§ 24, 25; Holtzendorff in 2 Holtzendorff, 33-43; * Huber, Die Staatensuccession (1898) ; Larriviere, Des consequences des transformations territoriales des Etats sur les traités anterieurs (1892); Liszt, § 23; 1 F. de Martens, §§ 66-69; * 1 Moore, Digest, ch. 4, §§ 92-99; 1 Nys, 399-401; * 1 Piedèliévre, Nos. 134-200; 1 Phillimore, Pt. II., chs. 5. 6; M Oppenheim, §§ 79-84; 1 P.-Fodéré, Nos. 156-63; * 1 Rivier, 65-75, 213 ff.; Selossé, Traité de l'annexation au territoire francais et de son démembrement (1880)); * Scott, Cases, 85-116; Snow, Int. Law, § 9; Taylor, §§ 163-68; Ullmann, §§ 31-34; *1 Westlake, 59-93; Wheaton, §§ 28-32; 1 Wharton, § 5; Woolsey, § 38.