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Succession to Bilateral Treaties by Seceding States

Published online by Cambridge University Press:  28 March 2017

Kenneth J. Keith
Kenneth J. Keith*
Affiliation:
Victoria University of Wellington
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Extract

Until recently, the view that new states start life unencumbered by the treaties which applied to their territories before independence has been almost universally and, too often, one might add, uncritically accepted. An exception, often explained away as only apparent, was made for “localized” treaties. And in the past fifteen or twenty years, the case for the continued force of multilateral “lawmaking” treaties has been pressed; this would be a real exception to the general clean-slate rule. Unless a bilateral treaty could be characterized as “localized,” however, the new state, according to the prevailing opinion, was freed of any continuing obligation by the act of becoming independent.

Type
Research Article
Information
American Journal of International Law , Volume 61 , Issue 2 , April 1967 , pp. 521 - 546
Copyright
Copyright © American Society of International Law 1967

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References

1 E.g., Keith, The Theory of State Succession (1907); McNair, Law of Treaties, Ch. XXXVII (1938); Rosenne, “Israel and the International Treaties of Palestine,” 77 Journal du Droit International 1141 (1950); O'Connell, The Law of State Succession, Chs. II-IV (1956); McNair, Law of Treaties, Ch. XXXVII (1961); Lester, “State Succession to Treaties in the Commonwealth,” 12 Int. and Comp. Law Q. 475 (1963). A notable instance of uncritical acceptance of the prevailing negative theory is provided by McNair's 1961 volume. Despite (1) the Commonwealth practice, which he mentions but to which he does not appear to accord any significance, (2) practice relating to multilateral “lawmaking” treaties, which receives only a footnote reference, (3) several valuable particular studies (e.g., Jones, “State Succession in the Matter of Treaties,” 24 Brit. Yr. Bk. Int. Law 360 (1947); Jenks, “State Succession in Respect of Law-Making Treaties,” 29 ibid. 105 (1952); van Panhuys, “La Succession de l'Indonésie aux Accords Internationaux Conclus par les Pays-Bas avant 1'Indépendence de l'Indonésie,” 2 Ned. Tijds. voor Int. Recht 55 (1955); Muralt, The Problem of State Succession with regard to Treaties (1954)), all of which suggests continuity of treaty obligations in some cases, he adheres, on the basis of limited and outdated practice, to the traditional view. The justification for adding to the great amount of recent writings on this topic (see, in addition, O'Connnell, “Independence and Succession to Treaties,” 38 Brit. Yr. Bk. Int. Law 84 (1962), the references there, and Shearer, “La Succession d'Etats et les Traités Non Localisés,” 68 Revue Générate de Droit International Public 1 (1964)) is that there w a great deal of available evidence of state practice (of. Mr. Castrén, U.N. Doc. A/CN. 4/160, Annex II, Appendix, p. 6 (1963)) which has not been gathered together. Current discussions will be more valuable if based on such material, and it is hoped that the present collection will stimulate more research into state practice. The valuable handbook compiled by the International Law Association, Effect of Independence on Treaties (1965), contains only a limited amount of bilateral practice. See also the discussion of “State Succession in the New Nations” in 1966 Proceedings, American Society of International Law 102 et seq.

2 “State Succession and Problems of Treaty Interpretation,” 58 A.J.I.L. 41 (1964).

3 For practice in the Commonwealth before 1919, see Stewart, Treaty Relations of the British Commonwealth of Nations, Chs. H-V, especially pp. 117-121 (1939). It has long been recognized that territories which are not fully independent may have treatymaking powers: e.g., protectorates and states under suzerainty; see, e.g., Tunis and Morocco Nationality Decrees case, P.C.I. J., Ser. B, No. 4 (1923); The Ionian Ships, 2 Spinks 212 (1855), 164 E.B. 394. Commonwealth practice shows that treaty-making powers are not restricted to the esoteric forms of dependent territories. There need be no mystery about this; dependent states (like other potential subjects of international law) have that competence in foreign relations which interested states allow them, and in the cited instances a fairly extensive treaty power has to be recognized. In the case of the West Indies Defense Areas Agreement discussed below, the United Kingdom expressly authorized the federal authorities to sign the relevant agreement and advised the United States of the fact, 409 U.N. Treaty Series 124. This authority was given pursuant to the Federal Constitution of 1957, Art. 56(1) of which read: “The executive authority of the Federation shall extend to such external relations as may from time to time be entrusted to the Federation by Her Majesty's Government in the United Kingdom.” West Indies (Federation) Order in Council, 1957 U.K.S.I. 1957, No. 1364. Also, the competent British Minister, when speaking of a double tax agreement concluded with Malta before it became independent, said “these agreements may be concluded … with any country which levies taxation of its own … “ 654 H.C. Deb. (5th Ser.) 349 (1962). Professor Bartoš, in his interesting paper prepared for the Subcommittee on Succession of States and Governments of the International Law Commission, argues that agreements concluded by the government of the dependent territory should not be treated any differently from those signed by the metropolitan Power, and that they should not be considered as remaining binding by virtue of that fact, U.N. Doc. A/CN. 4/160, Annex II, Appendix, pp. 10, 12-13 (1963). The writer would rest on the evidence of succession adduced below. Moreover, if, as a result of a state's accession to independence, a treaty becomes inequitable, the plea of rebus sic stantibus may be available; see, e.g., U.N. Doe. A/CN.4/175, pp. 64, 292, 294 (1965). But “fundamental change of circumstances is not necessarily an inevitable consequence of state succession“; Jamaican Government, ibid. 64. See also note 91 below. The agreement might also have been ultra vires of the administering Power; see, e.g., Mr. Nyerere, then Prime Minister of Tanganyika, 11 Int. and Comp. Law Q. 1210 (1963); International Law Association, op. cit. note 1 above, at 370.

4 Barbados 1922, 20 L.N. Treaty Series 415; British North Borneo 1923, 33 ibid. 303; Federated Malay States 1921, 23 ibid. 209 (concluded with and registered by Australia—this latter a breach of the usual Commonwealth practice), 1923, 20 ibid. 343; 1924, 24 ibid. 115; French Indo-China 1911, amended in 1925, 36 ibid. 430; Hong Kong 1923, 22 ibid. 433, 23 ibid. 9; India 1880, 5 ibid. 306; 1906, ibid. 312; Iraq 1922, 12 ibid. 431 (concluded with the mandatory Power, Great Britain); Jamaica 1924, 31 ibid. 122; Nauru (concluded with the administering mandatory Power, Australia) 1921, 23 ibid. 229; Netherlands East Indies 1922, 13 ibid. 263; 1923, 15 ibid. 322, 18 ibid. 25 (with Australia, but registered as with Great Britain), 22 ibid. 129, 433, 23 ibid. 9, 31 ibid. 248; Palestine 1922, 13 ibid. 9 (with Great Britain); Philippines 1923, 33 ibid. 303; St. Lucia 1922, 21 ibid. 9; Straits Settlements 1909 (amended 1924), 31 ibid. 248; 1911 (amended 1925), 36 ibid. 429; 1922, 13 ibid. 263; 1923, 22 ibid. 157, 24 ibid. 103; 1924, 28 ibid. 481; 1925, 36 ibid. 395; Tanganyika, 1925, 36 ibid. 409.

5 Tanganyika-Mozambique 1924, 38 ibid. 217.

6 ibid. 147 (Malta), 151 (India), 153 (New Zealand). The other two agreements concluded between the Belgian Congo and Kenya and Uganda were confirmed by the metropolitan governments.

7 E.g., French. Equatorial Africa-Anglo-Egyptian Sudan 1939, 2 U.N. Treaty Series 209; The Regency of Tunis-United Kingdom 1951, 90 ibid. 193; Morocco-United Kingdom 1948, ibid. 83; Canada-Montserrat 1956, 412 ibid. 165.

8 Art. 29 (1), 90 ibid. 137.

9 Art. XVI, 451 ibid. 167. The publication, Treaties in Force for the years 1956- 1961, does not indicate any post-independence agreement to which this article might refer; nor, however, does it list any pre-independence agreement. Consistent with this practice is the retention, after independence, of membership of the U.P.U. and I.T.U. by those states which were separate full members before they became independent: e.g., the Congo (Leopoldville) and Somalia.

10 World Guide: Indonesia, p. 2, note ii, note v; Netherlands, p. 5, note vii; United States, p. 5, note ii.

11 Ibid. Ghana, p. 2, note i.

12 Ibid. Federation of Malaya, p. 2, note ii.

13 Ibid. France, p. 20, note xxiii; see also p. 2, note i, of Dahomey, Guinea, Ivory Coast, Mali, Mauritania, Niger, Senegal, Upper Volta; and France, p. 20, note xxv; see also p. 2, note i, of Central African Republic, Chad, Congo (Brazzaville), Gabon.

14 Double Tax Agreement, London, April 2, 1965, Art. XXIII (2), U.K. Treaty Series, No. 90 (1965).

15 Op. Cit. note 10 above: Israel, p. 2, note i; Palestine, p. 2, note i.

16 86 XJ.N. Treaty Series 211. Rosenne quotes, but does not comment on, this language in an article which expresses a generally negative view of treaty succession—at least for Israel; loc. cit. note 1 above, at 1169, 1171. See also Treaties in Force (1966), which lists several tax agreements other than those mentioned above, and the view of the Department of State that the conventions which are extended only after appropriate action by the domestic authorities continue in effect after independence. Letter quoted by O'Connell, “State Succession to Treaties in the Commonwealth: [A Reply],” 13 Int. and Comp. Law Q. 1450, 1453 (1964), International Law Association, op. cit. note 1 above, at 375.

17 12 IT. S. Treaties 408, T.I.A.S., No. 4734; 409 U.N. Treaty Series 67.

18 43 Dept. of State Bulletin 822 (1960).

19 44 ibid. 42 (1961); ibid. 351. See also the statement at 350-351. Accordingly, the earlier communique’ would seem to have much less significance than O'Connell accords it. “Independence and Problems of State Succession,” in O'Brien (ed.), The New Nations in International Law and Diplomacy (3 Yearbook of World Polity) 7, 10 (1965). The 1961 agreement is also discussed by Esgain, “Military Servitudes and the New Nations,” ibid. 42, 76-81. He concludes that, as a result of the devolution agreements signed by Jamaica and Trinidad and Tobago, those states remain bound. (See similarly, the quotations from the letter of the Assistant Legal Adviser of the State Department of Nov. 8, 1965, and the British view, note 82 below.) But this raises the old problem that the United States is not a party to those agreements; see, e.g., Elihu Lauterpacht, 7 Int. and Comp. Law Q. 523 (1958). Is not the broader-based argument suggested above to be preferred? Franck takes the view, without detailed argument, that the United States accepted that the Agreement did not remain binding. “Some Legal Problems of Becoming a New Nation,” 4 Columbia Journal of Transnational Law 13, 23 (1965).

20 p. 187 (1966) (U. S. Department of State).

21 See, e.g., the U. S.-Trinidad and Tobago agreement whereby the U. S. released drydock facilities at its Naval Station in Trinidad. In time of mobilization, it could resume full use: 15 U. S. Treaties 2437, T.I.A.S., No. 5736. Because of this residual power, and other conditions imposed on the release, the U. S. Government did not give notice under Art. IV (3) of the 1961 agreement that it no longer required the area. Such a release would have been unconditional; letter to author from Assistant Legal Adviser, Nov. 8, 1965. See also the notice given under Art. IV(3) to the United Kingdom (as successor to the Federation!) in respect of St. Lucia, 15 U. S. Treaties 1679, T.I.A.S., No. 5641.

22 Pp. 106 (1963), 106 (1964).

23 Letter from Assistant Legal Adviser, Dept. of State, Nov. 8, 1965. See also 50 Dept. of State Bulletin 646 (1964).

24 Cmnd. 2094 (1963); 2 Int. Legal Materials 817 (1963); 4 ibid. 938 (1965).

25 Geneva, Feb. 17, 1966, U. K. Treaty Series, No. 13 (1966), Cmnd. 2925 (1966).

26 1961 N.Z. Treaty Series, No. 7. See also the practice relevant to Jamaica and Trinidad and Tobago below, and note 58 below.

27 445 TT.N. Treaty Series 33; 435 ibid. 127. Contrary to usual TT.N. practice, the Tanganyika agreement is entitled as an agreement between Tanganyika and the United States. It also expressly provides for negotiation after Dec. 9, 1961 (the date of independence), of the fiscal privileges to be accorded to the Peace Corps representative and his staff. See also the agreements signed by Burma before independence, referred to in note 44 below.

28 E.g., United Kingdom-United Nations Special Fund, Art. 1(5), 348 U.N. Treaty Series 177.

29 See note above and 366 ibid. 309. See also the 1951 Technical Assistance Board agreement, 92 ibid. 27; United Kingdom-WHO 1952, 121 ibid. 75; Technical Assistance Board-France 1954, 192 ibid. 20; U.N. Special Fund-Netherlands 1960, 372 ibid. 331.

31 The agreement can be terminated only by the United Kingdom (and by the Fund, of course), but the control of the territorial government over programs is equivalent to a power to terminate.

31 It is instructive to compare the emphasis in these agreements on the rights and duties of the territorial government with the contrary emphasis in the technical assistance agreements concluded with respect to Libya before it became independent in December, 1951; Technical Assistance Board-France 1951, 82 IT. N. Treaty Series 172; Technical Assistance Board-United Kingdom 1950, 76 ibid. 120. These agreements were to terminate (as were any supplementary agreements) on Libya's accession to independence (Arts. V(3)). Consistently with this and in contrast to the agreements discussed above, the agreements are worded throughout in terms of the obligations of the administering Powers.

32 423 U.N. Treaty Series 134, note 2. This is a rare instance of the publication of such confirmatory notes.

33 Ibid. 122.

34 387 ibid. 202.

35 174 ibid. 71 (see similarly the agreement concluded at the same time with Tunisia, ibid. 83); 412 ibid. 191. See also as to W.H.O. agreements, International Law Association, op. cit. note 1 above, at 330.

36 449 ibid. 41; new agreement, 456 ibid. 465. Uganda has taken a comparatively conservative attitude towards succession; see note 89 below.

37 UNICEF practice apparently is similar, International Law Association, op. cit. note 1 above, at 249-250. There is also a limited amount of practice relevant to the TJ. S.U.K. agreement of 1951 for technical assistance to territories for which the U.K. is responsible. (1) The U. S. technical assistance agreement with Jamaica provides that, upon its entry into force, the Economic Co-operation Agreement of 1948 (see further below) and the 1951 agreement are no longer to be considered to apply to Jamaica, 14 U. S. Treaties 1550, T.I.A.S., No. 5457; 489 U.N. Treaty Series 337. (2) On the other hand, however, the U. S.Tanganyikan Peace Corps Agreement, which, we have seen, was signed before independence, provided that until Dec. 9, 1961 (the date of independence), the Peace Corps representative and his staff would be accorded the fiscal privileges contained in the 1951 agreement. Thereafter a new agreement regulating these privileges would be negotiated. Tanganyika advised that on the basis of reciprocity it would continue to apply all bilateral treaties for two years (see note 89 below), i.e., until Dec. 9, 1963. A Tanganyikan note of that date to the United States read: “Since the provisions of that Agreement [of 1951] will cease to apply on 9th December, 1963, the Ministry has the honour to propose that the existing Agreement be continued in force for six month's [sic] … by which time a new agreement shall have been concluded.” The U. S. reply agrees to this extension, but does not expressly accept that the Agreement would otherwise have expired. 15 U. S. Treaties 287, T.I.A.S., No. 5554.

38 20 U.N. Treaty Series 91.

39 69 ibid. 230.

40 92 ibid. 387. See also the agreement between Indonesia, The Netherlands and the United States (1952), which replaced the above exchange, provided that Indonesia assumed all relevant responsibilities under the 1948 agreement and the loans granted under it, and relieved The Netherlands of all further obligations. 165 ibid. 77.

41 4 U. S. Treaties 285, T.I.A.S., No. 5308; 474 U.N. Treaty Series 41. Treaties in Force 45, note i (1966), states that only Art. III of the 1948 agreement is still applicable to the Congo.

42 14 U. S. Treaties 1, T.I.A.8., No. 5270; 14 U. S. Treaties 113, T.I.A.8., No. 5278. See also the U. S.Jamaica technical assistance agreement, note 37 above, and Ghana's acknowledgment in its general exchange with the United States that the 1948 agreement remains in force, discussed below. Treaties in Force (1966) lists the relevant 1948 agreements under Congo (Léiopoldville), Cyprus, Indonesia, Kenya, Malaysia, Malta, Nigeria, Sierra Leone, Singapore, Tanzania, Trinidad and Tobago, and Zambia: pp. 45, 49, 93, 113, 127, 128, 143, 170, 172, 183, 187, 215.

43 205 U.N. Treaty Series 324.

44 82 ibid. 131. See also the Pakistan acknowledgment in 1948 that the Agreement continued to bind it: Treaties in Force 149 (1966). Note also the series of agreements concluded by Burma (which became independent in January, 1948) with the United States: (1) settlement of surplus property, February, 1947; (2) use for educational purposes of funds becoming available under (1), December, 1947, 25 U.N. Treaty Series 27; (3) amendments to (2) in 1948-1949 and 1961, 80 ibid. 312, 418 ibid. 326. The inference from these later actions (as well as the signature by Burma in 1947 and the subject matter of the agreements) is that (1) and (2) remained binding after independence.

45 Cmd. 4174 (1932).

46 168 TT.N. Treaty Series 281. See also the letter, ibid. 302.

47 265 ibid. 197; 354 ibid. 161.

48 1959 N.Z. Treaty Series, No. 4, p. 24.

49 325 U.N. Treaty Series 253; 1961 N.Z. Treaty Series, No. 6. Note also an agreement between Ceylon and Iceland of 1953 which records the undertaking of both parties to “continue” the grant of preferential tariff treatment, 345 U.N. Treaty Series 189.

50 See similarly (1) a Philippine-Swiss exchange in July, 1946, wherein both stated that they were prepared “in the meantime …[to] continue to apply the agreements and regulations which governed the commerce between the two countries prior to the Philippine Declaration of Independence.” The correspondence does not indicate what those agreements were, Philippine Treaty Series, Vol. 1, p. 92 (August, 1947); (2) U.K. termination in 1961 by notice to Indonesia of a 1948 U.K.Netherlands agreement regulating trade between Singapore (and Malaya) and Netherlands Indies, T.J.K. Treaty Series, No. 119 (1961), p. 15; and (3) the practice of Senegal collected by Gautron, “Sur Quelques Aspects de la Succession d'Etats au Sénégal,” 1962 Annuaire Français de Droit International 836, 844-845.

51 See, e.g., Shearer, loc. cit. note 1 above, at 18; Muralt, op. cit. note 1 above, at 129.

52 69 U.N. Treaty Series 230.

53 74 ibid. 95.

54 Nederlands Tractatenblad, 1951, No. 163. See also notes relating to Dutch agreements with Sweden and Hungary in ibid., Nos. 91 and 95.

55 See Kunugi's excellent study, “State Succession in the Framework of GATT,” 59 A.J.I.L. 268 (1965).

56 Eg.O., O'Connell, note 2 above, at 46-47.

57 Article cited note 1 above, at 147 (1962).

58 Note also (1) the desire of the Ghanaian Government expressed in June, 1957, that the Bermuda Agreement and the services operated under it “should continue until such time as a bilateral Agreement is concluded between our Governments or until they are otherwise varied by mutual agreement,” cited by Bevans, “Ghana and United States-United Kingdom Agreements,” 59 A.J.I.L. 93, 94 (1965); (2) the general U. S.-Ghana agreement on treaty succession discussed below; (3) the consistent practice of Senegal noted by Gautron, note 50 above, at 845-846; and (4) the denunciation by Malaysia in 1965 of the United Kingdom-United States Bermuda Agreement of 1946, 53 Dept. of State Bulletin 222 (1965).

59 13 U. S. Treaties 2463, T.I.A.S., No. 5209; 13 U. S. Treaties 2719, T.I.A.8., No. 5244; International Law Association, op. cit. note 1 above, at 379-380. See also 45 Dept. of State Bulletin 118-119 (1961); when an amendment was negotiated in June, 1961, by, inter alia, West Indies representatives, it was contemplated that the agreement would remain binding on the West Indies after its accession to independence.

60 General U. S.-Ghana agreement, cited note 84 below, and Treaties in Force 127 (1966).

61 Shehadeh v. Commissioner of Prisons, 14 Int. Law Rep. 42 (1947).

62 Israel, of course, denies succession to treaties which were applicable to Palestine. In particular, it has claimed in correspondence with the United States that the Anglo- American Extradition Treaty of 1931, which was applied to Palestine, “ i s not in force in relation to Israel.” The United States did not dispute this view, 2 Whiteman, Digest of International Law 972-973 (1963). Switzerland has also recently concluded a new extradition treaty with Israel. See, generally, on the Israeli position, Bosenne, note 1 above, and Israeli memorandum, U.N. Doc. A/CN. 4/19; 1950 I.L.C. Yearbook (II) 206, pars. 19-28. The Lebanon Treaty Collection (1951) does not indicate the view of the Lebanese authorities following the Palestine hostilities.

63 17 Int. Law Rep. 82 (1950); Muralt, op. cit. note 1 above, at 146, reproduces the complete text of the judgment.

64 133 T.J.N. Treaty Series 199 (emphasis added). Presumably Pakistan would not have registered the exchange as a “treaty” or “international agreement” under Art. 102 of the Charter; in its view, the letters confirmed and did not create a legal relationship.

65 173 ibid. 408.

66 See Shearer, note 1 above, at 8; Extradition Act 1962, s.2(d) (India); and International Law Association, op. cit. note 1 above, at 109.

67 2 Whiteman, Digest of International Law 999 (1963). Kenya and Tanganyika have also taken action to keep extradition treaties in effect, Treaties in Force 114, 183 (1966).

68 The foreign parties to a majority of the British extradition treaties have also acknowledged that they continue to apply to New Zealand (and Australia and South Africa), and they would probably be estopped in relation to Canada. See my note in 13 Int. and Comp. Law Q. 1441, 1447, note 32 (1964). See also Extradition Act 1965, s.21 (N.Z.); O'Higgins, “ T h e Irish Extradition Act, 1965,” 15 Int. and Comp. Law Q. 369, 380-381 (1966). The United States also takes the view that its extradition treaties with the United Kingdom and The Netherlands continue to apply to the former dependent territories of those two states.

69 2 Whiteman, Digest of International Law 983 (1963).

70 Recueil des Traités, 1951.

71 Ibid. Vi

72 Philippine Treaty Series, Vol. 1, p. 53 (August, 1947). For a discussion of this case and of the efforts of the Philippines to deny its succession to certain United States obligations under the agreements, see Santos and Lennhoff, “The Taganak Island Lighthouse Dispute,” 45 A.J.I.L. 680 (1951). See also Art. VII of its treaty on general relations with the United States, whereby it undertook to recognize the rights of Spain under its treaties of 1898 and 1900 with the United States, 7 U.N. Treaty Series 3.

73 Treaties in Force 133, note 1 (1966); 310 U.N. Treaty Series 3. Note the wording of the United Kingdom renunciation: Her Majesty's Government in the United Kingdom, renounces, etc. This suggests that Her Majesty's Governments elsewhere in the Commonwealth may still retain their rights under the old agreements.

74 443 U.N. Treaty Series 247.

75 437 ibid. 47. It is interesting to note that in the statement in which he presented Tanganyika's comparatively negative attitude towards treaty succession and in which he denied that country's succession to Anglo-Belgian agreements concerning port facilities in Dares-Salaam, Mr. Nyerere stated that the Organization would, in the future, operate these facilities. There was no talk of the relevant treaty ceasing to have effect because of Uganda's and Kenya's attainment of independence. 11 Int. and Comp. Law Q. 1210, 1213 (1962); International Law Association, op. cit. note 1 above, at 371- 372. Kenya and Uganda have taken a similarly restrictive view of treaty succession. See note 89 below.

76 The Common Services Agreement, for instance, gives the United Kingdom a status in the amending procedure which wanes and disappears as the dependent territories become independent.

77 Thus the Common Services Agreement was amended following Uganda's independence in the prescribed manner: 457 U.N. Treaty Series 314. The current debate about the future of the organization also proceeds on the basis of its present-day reality.

78 Another more controversial group of “miscellaneous” agreements is the United States Mutual Defense Agreements. See the U. S.Ghana general agreement cited in note 84 below and Bevans, note 58 above. It is believed that the only major classes of bilateral treaties where succession questions might arise and which are not covered in the above discussion are: (a) localized or dispositive treaties; (b) treaties for the peaceful settlement of disputes (see note 103 below); (c) consular conventions (at least the United States, New Zealand, Australia, Ireland (see (d)), Ghana and Malaya take the view that these remain binding; and semble that Cyprus also considers itself bound by the Anglo-American Consular Convention of 1951. 2 Whiteman, Digest of International Law 993 (1963); see also Tanzania's action to continue in force the U.K.U.S. Consular Convention. Treaties in Force 183 (1966)); (d) disposition of property agreements (at least the United States, the United Kingdom, Australia, New Zealand and Ghana take the view that the relevant agreement of 1899 remains in force between the United States and Commonwealth members, and see Hanafin v. McCarthy, 57 At. 2d.l48,150 (1948), and the Consular Convention between Ireland and the United States, 1950, Art. 29, 5 U. S. Treaties 949, T.I.A.S., No. 2984; 222 U.N. Treaty Series 107; (e) industrial property agreements; these are now largely replaced by multilateral agreements, but see (a) the general succession agreement between Ghana and the United States, note 84 below, and (b) the Treaty of Friendship, Commerce and Navigation between Ireland and the United States, 1950, Art. XXIV, 1 U. S. Treaties 785, T.I.A.S., No. 2155; 206 U.N. Treaty Series 269.

79 For listings, see 1962 I.L.C. Yearbook (II) 126-128; International Law Association, op. cit. note 1 above, at 196-201. See in addition to the I.L.C. List, the French agreements with Laos, Ivory Coast, Mali, and the Cameroons, 2 Whiteman, Digest of International Law 978, 983, 983-984 and 143 respectively (1963); and see Senegal's note to France, note 104 below; United Kingdom and Jamaica, Trinidad and Tobago, Gambia, and Malta, Cmnd. 1918, 1919, 3076, Treaties in Force 128 (1966); New Zealand and Western Samoa, 476 U.N. Treaty Series 3; 1963 N.Z. Treaty Series, No. 5; and the Constitution [of] Malaysia (Singapore) Amendment Act 1965, s.13, annexed (in Bill form) to the Singapore Independence Agreement signed by Singapore and Malaysia on Aug. 7, 1965, 4 Int. Legal Materials 938 (1965); see also 53 Dept. of State Bulletin 357 (1965) and 60 A.J.I.L. 96 (1966). Zambia, in a letter of Sept. 1, 1965, to the Secretary General of the United Nations, acknowledged that it succeeded to many treaty rights and obligations by virtue of customary international law. There were, however, uncertainties, especially with reference to the former Federation of Rhodesia and Nyasaland. There would be a presumption of continuity of all treaties, and Zambia, after considering the treaties, would if necessary give a notice of termination. See also Ruanda's declaration of July 24, 1962. U.K. Treaty Series, No. 98 (1965), Cmnd. 2897 (1965); Treaties in Force 215 (1966). Finally, the Report of the Legal Committee of the French Union in 1950 relating to Indochina should be noted, International Law Association, op. cit. note 1 above, at 168-169.

80 Compare Professor Bartoš’ provocative view that these devolution agreements should be regarded as voidable on the grounds (a) of duress (or at least undue influence) and (b) that often the signatories do not adequately represent the people, note 3 above, at 23-24. Franck, loc. cit. note 19 above, mentions that one new state has taken the view that its devolution agreement is (a) in derogation of its sovereignty (are not all treaties ?) and (b) not in conformity with international law. Moreover, it denies that third states have any rights under the agreement.

81 Take, for instance, an Anglo-Dutch Extradition Treaty which was extended to the Federated Malay States, the Straits Settlements, and the Dutch East Indies. The Indonesian inheritance agreement can be construed as an offer to remain bound by all treaties within its scope, i.e., as an offer to the United Kingdom (in 1949) in respect of the Extradition Treaty, and to Malaya in 1957 in respect of the same treaty. Malaya's agreement can be construed as an acceptance of that offer: “we too consider ourselves bound by agreements within the scope of the inheritance agreement.” This theory, of course, is unnecessary if there is a general rule of law which prescribes succession, and of which the devolution agreements are simply evidence. But in practice the two arguments—(1) a general rule of law requiring succession, and (2) special obligations arising from conduct—might be made together.

82 The United States Government seems consistently to have taken the view that devolution agreements have effect so far as it is concerned, although it is not a party: see, e.g., (1) the letter quoted in Franck, loc. cit. note 19 above; (2) the listings in Treaties in Force which mention, where appropriate, the agreements; (3) the lists prepared by the State Department of provisions of (i) consular agreements relevant to exemption from taxes on government-owned real property, (ii) property agreements, and (iii) agreements requiring notification to consuls of arrests of nationals, which are based, in part, on the devolution agreements (59 A.J.I.L. 113 (1965); 60 ibid. 94, 385 (1966); 57 ibid. 411 (1963)); (4) the letter to the author, cited note 21 above, wherein the relevant revolution agreements are mentioned and it is said “On that basis the West Indies Defence Areas Agreement was considered to continue in force between the United States and Jamaica … “ and “The … Agreement continues in force between the United States and Trinidad and Tobago by virtue of” the Revolution agreement (emphasis added in both cases); (on this agreement see to the same effect the statement of the British Minister of State for Colonial Affairs, 242 H.L. Deb. (5th Ser.) 482 (1962), and see also Cmnd. 1757, pp. 10-11; [1962] Br. Pr. IX. 158); (5) the agreements subsequently concluded by the United States with the new states which acknowledge the effect of the devolution agreement: e.g., the U. S.Pakistan exchange of notes relative to air transport; the Fulbright agreement with Pakistan, p. 533 above, and the amendment to the 1946 agreement relating to war claims.

83 Cf. 2 Whiteman, Digest of International Law 983, 983-984, 990-991 (1963). See also its agreements with Lebanon and Syria wherein they assured that the existing rights of U. S. nationals, particularly as set forth in a specific Franco-American treaty, would be fully recognized, 124 U.N. Treaty Series 187, ibid. 251. See Treaties in Force 119, 183 (1966), but note that the Lebanese Treaty Collection does not list the treaty, op. cit. note 70 above, at 486.

84 442 U.N. Treaty Series 175. For an official discussion of the agreement, see Bevans, note 58 above, at 93-96. See also 2 Whiteman, Digest of International Law 153 (1963). One other agreement—relating to parcel post—signed before independence, is included in Treaties in Force 77 (1966). This was signed by the Gold Coast postal authorities (there is no mention of this action being authorized by the United Kingdom). In view of this, the United States authorities may not have thought it necessary to raise any question about its continued force.

85 13 U. S. Treaties 2065, T.I.A.S., No. 5161; International Law Association, op. cit. note 1 above, at 203; Treaties in Force 43-44 (1966). The Congo also regards a Headquarters agreement concluded by France with W.H.O. as still in force, International Law Association, op. cit. note 1 above, at 330, 347.

86 Treaties in Force 125 (1966).

87 See the emphasis on local legislative action in the United States view of tax agreements, note 16 above.

88 See, similarly, van Panhuys, note 1 above.

89 Letter from the Prime Minister of Tanganyika to the Secretary General of the United Nations (Dec. 9, 1961, the date of independence), U.N. Doc. A/CN.4/160, Annex II, Appendix I, p. 1 (1963); U.K. Treaty Series, No. 65 (1964), p. 19; [1962] Br. Pr. I.L. 156. See also 11 Int. and Comp. Law Q. 1210 (1962). This was circulated to Members of the United Nations. Even this attitude expressly invokes the operation of customary rules of international law. For one instance of action to continue an agreement on the expiry of the two-year period (which presumably shows Tanganyika's opinion of the relevant customary law), see note 37 above. Kenya, Malawi, Uganda and Burundi made similar declarations, U.K. Treaty Series, No. 65 (1964), pp. 10-11; No. 66, p. 8; No. 65, pp. 20-21 and 3-4; 2 Whiteman, Digest of International Law 1000-1002; International Law Association, op. cit. note 1 above, at 386, 88; [1964] Br. Pr. I.L. 30-31. For action following the formation of the United Republic of Tanganyika and Zanzibar, see International Law Association, op. cit. note 1 above, at 381-382.

90 Cf. the rejection by the General Assembly in 1960 and 1961 of Soviet efforts to fix a definite date for the attainment of independence by all non-self-governing peoples.

91 It is true that it can be argued that the right to self-determination suggests that there should be no continuity of obligation: see Professor Bartoš’ interesting argument, note 3 above, at 20: “there is no doubt that there are provisions in the old treaties, and even whole treaties, which are not consistent with the political position and status of a new independent State.” But (a) this does not deny succession in respect of most treaties (practice shows that Bartoš’ fears are rarely realized); (b) cannot the few cases be dealt with either as an exception to a general continuity rule or on the basis of the clausula rebus sic statibus as used by the Iraqi Government in 1958 to free itself of military agreements with Western states? (and see, further, note 3 above) (this case shows incidentally the close relation, in some circumstances, of governmental and state succession); and (c) are not the views of the “peoples” around the date of independence actually being given effect in many of the cases reviewed above? In many of these only their views are considered ﹛e.g., postal, tax agreements).

92 See, e.g., Done, ‘’ International Legal Problems of Emergent Territories,'’ Report of International Law Conference, 1960 (David Davies Memorial Institute) 14, 18-19.

93 3 Int. Legal Materials 668 (1964); 58 A.J.I.L. 1016 (1964).

94 See, e.g., Schwarzenberger, The Inductive Approach to International Law (1965).

95 See note 89 above.

96 Israel is generally accepted to have a valid case: there is insufficient continuity with Palestine. See notes 16 and 62 above.

97 Algeria's argument does not appear to deny any general theory of succession; rather it seems to be based on the view that the French action in applying treaties to Algeria was, for various reasons, void ab initio. See Bedjaoui, Law and the Algerian Revolution (1961). See especially the Algerian instrument of denunciation of the North Atlantic Treaty Insofar as it applied to Algeria, ibid. 200.

98 0'Connell, note 16 above, at 1452.

99 Vallat, ‘ ‘ Some Aspects of the Law of State Succession,'’ 41 Grotius Society Transactions 123, 126 (1955). See, to similar effect, the view expressed by the IT. S. State Department, 2 Whiteman, Digest of International Law 993 (1963).

100 Compare the present opinion of the International Law Commission which is to deny the usefulness of this approach ﹛e.g., Rosenne, IT.N. Doc. A/CN.4/160, Annex II, p. 15). For a convincing exposition of the suggested approach, see McNair's brilliant article, “The Functions and Differing Legal Character of Treaties,” 11 Brit. Yr. Bk. Int. Law 100 (1930), reprinted in his Law of Treaties 739 (1961).

101 Compare with the West Indies and Singapore cases the position taken by the French and Moroccan Governments on the Franco-American bases agreement: it did not come within the scope of the devolution agreement. 2 Whiteman, Digest of International Law 984-985 (1963); de Laubadére, “Le Status International du Maroc depuis 1955,” 1956 Annuaire Français de Droit International 122, 35-36.

102 See Bevans, note 58 above.

103 Compare, e.g., the fairly negative attitudes expressed in the Temple of Preah Vihear case, 1 Pleadings etc., 145-148, 164-166; 2 ibid. 31-40, 74-83, 106-109, concerning Cambodia's claim to take advantage of a Thai-French treaty for peaceful settlement, with the more positive practice relative to the Permanent Court of Arbitration. See, e.g., International Law Association, op. cit. note 1 above, at 61-64, and O'Connell, “New Zealand and the Law of State Succession,” in Northey (ed.), The A. G. Davis Essays in Law 180, 186-87 (1965).

104 A note from Senegal to France, which was stated to be based on the relevant rules of international law and which stated Senegal's position on treaties concluded by France before Senegal became independent, adopts the above division. Senegal does not recognize political treaties of guarantee, alliance, neutrality, arbitration or mutual assistance, but it does recognize (along with “traités-lois“) other bilateral agreements (subject, in the case of non-localized treaties, to the right of denunciation). Quoted by Gautron, loc. cit. note 50 above, at 844. See also Senegal's agreement with France relevant to the treaties of the short-lived Federation of Mali, ibid. 857, note 67.