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STATE SUCCESSION IN THE CASE OF THE BREAKING UP OF A STATE.
We have considered cases of the separation of one state from another as being, according as such separation is recognised by treaty with the parent state or not, cases of cession or conquest, and as falling under the rules for cession or conquest. There remain for consideration only cases where (i.) a state breaks up so completely that no part of it represents the original state ; or (ii.) a federation or a confederacy dissolves.
(i.) The states obviously have no real succession in the sense of a universal succession. Each part takes such territory as it can grasp. Similarly, none of them can claim any treaties of the original state as, obviously, all would be equally entitled to do so, and a splitting up of a contractual obligation cannot conceivably be binding on the other party. Huber (p. 174) here, as usual, desires to distinguish between personal and territorial treaties, and Hall (p. 92) says that “a new state formed by separation is bound by local obligations and has local rights secured by treaty, such as the duty of keeping clear the course of a stream or of levying not more than a certain amount of dues, and the right of navigating a river beyond the limits of its own territories.” There is absolutely no authority in practice for this statement, and it has been already argued that it is not at all obvious that it is ultimately possible to distinguish between a local and a personal treaty. All treaties are personal, and the local relation is not really in point. One of the parties is gone, and with it the treaty. New treaties may be made instead or the existing treaties may be tacitly renewed by being acted upon.
With regard to the property of the state it is obvious that, apart from convention, each party takes what is locally its own. In cases of convention there can be either adopted that basis—the territorial principle, as Huber calls it--or a liquidation can be made of all assets, or part of the assets can be liquidated and part appropriated on the territorial system. The chief examples of liquidation are those of Westphalia, of 29th July, 1842, and of Frankfurt of 2nd July, 1828, but the details are of no theoretic interest.
Of more importance is the question: What is to be done with the debt of the divided state? There is here a remarkable consensus of opinion. Grotius (Book II., Chapter IX., para. 10) says when a state breaks up “si quid commune fuerit id aut communiter est administrandum aut pro ratis portionibus dividendum”; so Puffendorff (Book VIII., Chapter XII., para. 5); Kent (i., 27); Heffter (p. 63); Halleck (vol. i., Chapter III., para. 27): “The obligations which had accrued to the whole before the division are, unless they have been the subject of a special agreement, rateably binding upon the different parts." Phillimore (i., para. 137); Bluntschli (para. 59); Calvo (i., para. 106); Pradier-Fodéré (i., 279); Rivier (i., 70); Fiore (i., 226); Gabba (p. 337); Appleton (p. 64); Huber (p. 179): “The question if the general state debts of the extinguished state must be divided is in recent international science and practice never denied. The mere succession transfers to each successor a quota of the debts, the only question is, how much?”; and Hall (p. 93, n.), where he admits the theory for the case of a state so split up that no one of the fractions represents the original state; so also others.
It is difficult to conceive a greater consensus of authority, but it is necessary to remark that this is the case to which Hall's dictum applies, that writers of International Law “are incomplete and tend to copy one another.” I have been unable to discover any evidence for the rule except in the case of special treaty arrangements. There is no recent practice to show what would happen if a state broke up into two fragments, both not representing the real state. I am inclined to think that neither would be under any legal objection to meet the debt of the old state. Hall here seems inconsistent; he admits that in the case where a state breaks up so that one part remains representative of the old state that part alone is responsible for the general debt -- “ the fact remains that the general debt of a state is a personal obligation ”—yet he accepts the theory of partition for a total break-up. But if neither represents the person who contracted, how can either be bound? The rule appears to be a mere moral ideal without foundation in law, and it is doubtful, should, for example, Russia break up into fragments, to what extent it would be followed in practice.
In the case of a breaking-up of a country, either peaceably or by stress of outward force, stipulations may be laid down as to the division of debts. For example, in 1815 Russia and Austria, when partitioning the Duchy of Warsaw, took over the debts and assets in the proportion of eight to one, and Prussia and Russia similarly divided the debts of their shares of Poland. Other examples—the liquidation between Frankfurt and Hanau, 14th March, 1814, and the liquidation of Frankfurt, 2nd July, 1828-—are cited in Huber (p. 298), who considers that such divisions should be according to the taxable values of the parts separated, but to argue from these special cases to a general rule applicable to a case where there is no treaty and the parts are violently separated is almost absurd.
Huber carries out logically the principle which he has laid down into all details. A guarantee passes over rateably to the successors, pensions must be paid, officers must be taken over or pensioned, past service must be counted in reckoning pensions (p. 184), and so on. All this cannot conceivably be regarded as law, and parts of it would certainly not be carried out by any state apart from convention. Bluntschli (para. 55), in accordance with his theory that state succession rests on the identity of the people and the land, lays it down that immovables destined to public purposes pass to the party on whose territory they are situated, who, however, must contribute a sum to the other party if that party used to use those immovables, and is compelled to incur expense to meet his needs. Arms, etc., should be divided according to the number of the population in the new states. The domaine privé should be divided like the public domain, immovables remaining in the possession of the territorial lord, but an allowance being made for them.
The absurdities which result from the detailed consideration of the matter supply a strong argument against the correctness of the theory of universal succession. It is far simpler to assume that the state which is extinguished is finally disposed of, and that the new states which arise are merely successors as following it, not in any way as continuing its existence. It may fairly be anticipated that if a state, overburdened by a huge load of debt, broke up into fragments, nothing but armed force could compel those fragments to assume the burden of debts which had proved too heavy for the original state to bear.
(ii.) In the case of the breaking-up of a confederate or federal union, or of a real union, such as Norway and Sweden or Austria and Hungary, there would, on my theory, be no legal passing over of the duties or rights of the conferation or federation to the members. The only cases, however, recently existing were cases where an agreement was made before the breaking-up, which determined the right of the members as to property. Inevitably the treaties of the real or confederate union must fall away with the disappearance of the person. According to Huber (p. 186) this applies only to treaties of high politics, which become capable of denunciation through changes in their circumstances, and to treaties which are indivisible and can only be exercised by the united states, such as treaties of alliance or subsidy. Commercial treaties, postal treaties, and similar agreements continue to bind both states. This must be regarded as very doubtful. The other party can surely say that if the treaty is altered by the substitution of
two parties for one he can withdraw from it. This is brought out by the actual facts in the case of Norway and Sweden. Both powers notified foreign Governments that each was prepared to perform, as far as itself was concer
cerned, the stipulations in treaties made by the union with these foreign powers, but that, of course, it could not answer for the actions of the other party to the original union. The attitude taken up by the British Government, and, it is believed, by most foreign Governments, is to accept for the time being the offer made by Sweden and Norway to continue on the old basis. But it appears that Sweden and Norway in their offer, and Great Britain in its acceptance, have expressly reserved the right, while leaving things at present in the statu quo, to reconsider the treaties, and it has been stated in Parliament (Hansard, 4th series, cxlviii., 384 ; clxvi., 296, 297), that His Majesty's Government have under consideration the question as to their position with regard to the Treaty with France of 1855, guaranteeing the possessions of Norway and Sweden against Russian aggression, a guarantee which obviously becomes exceedingly difficult to fulfil unless Norway and Sweden can guarantee the adoption of a common foreign policy as against Russia.
The position, therefore, is that Great Britain, Norway, and Sweden have renewed by mutual consent their existing relations, but that all parties have expressly repudiated the idea that they are ipso jure bound by the existing treaties, a view which corresponds exactly with the theory of singular succession, but not with that of universal succession. It may also be remarked that after the breaking-up of the German Confederation the North German Confederation, even with the consent of the South German states and Austria, could not exercise the right of keeping a garrison in Luxembourg possessed by the German Confederation. This seems to prove clearly that there is no succession to the treaties of a confederation by th members thereof. The legislation of the confederation, federation, or real union goes,
course, as far as it exists, to the ground, without affecting rights already fully enjoyed. This was the case with the legislation of the old German Confederation, while Norway and Sweden had no common Legislature.
The case of the North German Confederation of 1866 to 1871 does not present an instance of the breaking-up of a federal union. There was no breaking-up at all, else all the treaties of the confederation could not have passed over to the new empire without novation, nor could the debts of the confederation have fallen direct to the new empire. What really happened was merely the expansion, by the addition of new members, of an existing confederation, whose juristic personality was no more altered by such expansion than the personality of a company by the creation of new classes of shareholders. On the other hand, the North German Confederation of 1866 to 1871 is not a successor of the German Federation of 1820 to 1866. The treaties of the latter did not pass over to its successor ; its legislation ceased to have any effect; there was no immediate succession to its property, which, so far as it consisted of movables, was left undivided by treaty, and administered in Maintz by the North German Union for the general purpose of German defence, while Luxembourg's share was paid off in cash.
In the case of the old German Empire, which dissolved in 1805, the treaty relations of the empire disappeared without a successor ; but its legislation, so far as it had in the several parts of the empire the force of local law, remained valid until the civil law of Germany was codified by the Imperial Legislature. The assets of the old empire were liquidated under treaty.
In view of the facts detailed in the preceding chapters, it is submitted that instead of assu
ssuming the existence of a law of universal succession in virtue of which a successor succeeds to all the rights and liabilities of a predecessor in the case of cession or annexation, it is at once simpler in theory and more consonant with practice to assume that there is what may be called a singular succession, by which is meant a succession to or taking possession of the rights alone of the predecessor, so far as these rights can be enforced in the courts of the successor, but that the successor does not succeed to any of those rights which exist only at International Law, or which require for their assertion legal action beyond the limits of the successor's jurisdiction. The doctrine has, no doubt, not the logical completeness of the doctrine of universal succession, and as it negates all succession to liabilities it is open to criticism on ethical grounds. But it must be remembered that as the origin of cession or annexation normally lies in the exercise of armed force, it cannot à priori be expected that the doctrine of state succession should be ethically satisfactory or logically consistent. The supporters of the view of universal succession are compelled to admit that in fact the universal succession frequently does not occur. I think it is simpler and more true to assume that there is no such universal succession, and to explain the cases in which such succession does appear to occur as resting on grounds of treaty, stipulation, ethics, or expediency. At least this seems to me the only possible principle which renders intelligible the action of His Majesty's Government with regard to the recent annexations, and explains the technical law of English law discussed in Chapter III. above, which forbids an action to be brought on account of a matter arising out of an act of state.
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