CHAPTER VIII

THE EXTINCTION AND SUCCESSION OF STATES

1. THE EXTINCTION OF STATES

--

125. Total Extinction. A State ceases to exist when it has lost the essential marks or distinguishing characteristics of a State. It may become extinct through voluntary action or as a result of conquest. Theoretically, this might result from natural causes, such as depopulation, extermination, total emigration, or a permanent condition of anarchy. But practically, States are extinguished through voluntary incorporation, forcible annexation, division into several States, or through a union with other States.2 Like the recognition of a new State or government, the recognition of a conquest, merger, division, or cession is the recognition of an accomplished fact, and should not be refused after resistance has virtually ceased, or when the old government has practically abandoned its functions. But a reasonable time should be permitted to elapse in order to enable the recognizing State to judge of the permanence and stability of the new condition of affairs, or to determine the capacity of the new State or States to carry out their international obligations. Such recognition is generally tacit. States fully extinguished lose all international personality, and acquire the rights and obligations of the annexing or incor

1See supra, § 88.

2 Examples of voluntary incorporation are the Union of England with Scotland and Ireland, and the admission of Texas into the Federal Union of the United States.

History abounds in examples of forcible annexations or cessions and conquests. Recent instances are the annexation of the South African (Transvaal) Republic and the Orange River Free State by Great Britain; and of Porto Rico and the Philippine Islands by the United States.

Instances of division or separation are Belgium and Holland in 1831, and Norway and Sweden in 1905.

Examples of union are the Federal Unions of the United States, Germany, and Switzerland.

porating State. The observance of any agreements or promises made by the latter to such annexed or incorporated State is a matter of conscience, or of moral rather than of legal obligation. On the other hand, no purely legal sanction of its extinction can be given by the extinguished State, whether by treaty, by the consent of a representative assembly, or by popular vote (plebiscite).

126. Partial Extinction. There is a partial loss of international personality when a State loses a part of its external sovereignty or independence, either by placing itself under the Protectorate of a stronger Power, by joining a Confederacy, or by permanent neutralization. Such partial loss of independence may materially affect its international obligations.

2. THE SUCCESSION OF STATES

127. Universal Succession. 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 Russia, Prussia, and Austria.

128. Partial Succession. Partial succession occurs in the following cases: —

(1) When a State acquires a portion of the territory of another through cession or conquest.

(2) When a new State is formed in consequence of a successful revolt or declaration of independence.

(3) When a fully sovereign State loses a portion of its external sovereignty or independence through incorporation into a Federal Union, or places itself under the Protectorate of a stronger Power.

(4) When the latter process is reversed, and the State under Suzerainty or a Protectorate, or the member of a Federal Union, becomes a fully sovereign state.

* On the meaning and propriety of this phrase, see note at the end of this chapter.

I. Universal Succession

129. Effects of Total Absorption. In case of total extinction and absorption or incorporation, the authorities are generally agreed that the annexing or absorbing State succeeds in the main to the rights and obligations of the extinguished State. "The conqueror who reduces a nation to his subjection receives it subject to all its engagements and duties toward others, the fulfillment of which then becomes his own duty." 4

There is no reasonable doubt that the successor assumes responsibility for the financial obligations, more particularly the public debt, of the extinguished State. The former falls heir to the latter's assets, credits, revenues, and resources subject to the charges or burdens resting upon them.5 "Res transit cum suo onere." Thus, the United States assumed the public obliga

6

'Mr. Adams, Sec. of State, to Mr. Everett on Aug. 10, 1818. 1 Moore, Digest,

p. 334.

'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 Confederate 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." I Westlake, p. 75. v. Prioleau (1866), 2 H. and M. 563, and Scott, Cases, 85; ica v. McRae (1869), L. R. 8 Eq. 69; and the King of the (1851), 1 Sim. N. S. 301, 327-336.

See the United States United States of AmerTwo Sicilies v. Wilcox

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. I Westlake, 78.

'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 Texan 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

tions of the former colonies in 1789, the enlarged Sardinia or the new Italy took over the public debts of the lately annexed Italian States in 1861, as did Prussia those of the incorporated German States in 1866.

In case there are several successors, the debt should be rateably divided, preferably in proportion to the revenues and taxable resources of that portion of the divided territory which each receives.

7

In principle, the absorbing or incorporating State also succeeds to the contractual obligations of the extinguished State, at least as far as the rights of third parties are involved; and, vice versa, the contractual rights and obligations of the annexing State extend to the inhabitants and territory of the people absorbed.

There are, however, important exceptions to this rule. It is clear that political (including personal and dynastic) treaties and alliances of the extinguished State fall to the ground. It is equally clear that transitory or dispositive treaties remain in force. Of such a character are stipulations respecting boundary lines, servitudes, or easements resting on the land relating to the use and repair of roads (including railways) or the navigation of rivers, etc. In these cases the rights of third parties, which it would be illegal to ignore or destroy, are involved.

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% 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 Moore, p. 347.

On the Texan Bond Controversy, see especially: 1 Calvo, § 101; * Dana's Wheaton, note 18; Lawrence, 1 Commentaire, 211 ff.; Magoon, Law of Civil Government under Military Occupation, 190-191; *1 Moore, Digest, § 97, pp. 343-347; * 4 Moore, Int. Arbitrations, 3591-3594; Scott, Cases, 94-96 n.; Snow, Cases, 18-20; 1 Westlake, 77-78; Ullmann (2d ed.), 132 n.

I

7 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.

8

There is a serious difference of opinion in respect to treaties of commerce, navigation, extradition, etc. According to some authorities, such treaties are extinguished like those of a political alliance or friendship. According to another, but more infrequent, view," treaties of commerce and other international conventions which bind the annexed State "9 remain in force. There is a third opinion which considers "a general answer to these questions based on principle, to be impossible and leaves them to the nature and scope of the treaties and concrete circumstances for decision." 10 The better opinion (and the one most consonant with international practice) would seem to be that such treaties may be annulled at the option of the absorbing State. True it is that the rights and interests of third parties are affected; but the interests involved are for the most part economic or quasi-political in their nature, and cannot as a rule resist the pressure of changed social and political conditions.

As in the case of partial succession," the universal successor acquires complete rights of sovereignty over the territory which has been absorbed; and can, therefore, make any change in the laws or political institutions of the extinguished State which it deems necessary or desirable. But civil and criminal law as opposed to constitutional and purely administrative law, and the private rights of the inhabitants of the extinguished State, remain unaltered unless changed by express enactment. Contracts, franchises, and concessions to private companies and individuals should also, as a rule, be maintained. The universal successor also succeeds to the public and private domain of the extinguished State.

E.g. Despagnet, No. 91; 1 Piédelièvre, No. 148; Rivier, pp. 72 ff.; 1 Westlake, p. 67 n.

'1 F. de Martens, p. 369.

10 Ullmann (2d ed.), p. 132. Cited by 1 Westlake, p. 67 n. Ullmann cites Bluntschli and I Calvo, § 100, in favor of this opinion a view which he himself seems to share in spite of his criticism of it as being "much too eleastic." He claims that the annexing State succeeds to the legal order (Rechtsordnung) 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.

11 See infra, p. 137.