State succession to international intergovernmental organizations under the international public law

Author:Nasty Marian Vladoiu
Position:PhD, Professor, Faculty of Law, 'Transilvania' University, Brasov, Romania
Pages:13-21
SUMMARY

Under the international public law there are three aspects of state succession namely, state succession in respect of treaties, succession in respect of matters other than treaties and successions in respect of membership of international organizations. In this scientific approach we aim to address the topic of state succession to international organization, which unlike the other two aspects of state succession has been neglected although it is a matter of great interest considering the current situation where the power of international organizations in the world becomes increasingly bigger.

 
CONTENT
State succession to international intergovernmental organizations … 13
STATE SUCCESSION TO INTERNATIONAL
INTERGOVERNMENTAL ORGANIZATIONS UNDER
THE INTERNATIONAL PUBLIC LAW
Nasty Marian VLDOIU
PhD, Professor,
Faculty of Law, “Transilvania” University,
Braşov, Romania
Abstract:
Under the international public law there are three aspects of state succession namely,
state succession in respect of treaties, succession in respect of matters other than treaties
and successions in respect of membership of international organizations.
In this scientific approach we aim to address the topic of state succession to
international organization, which unlike the other two aspects of state succession has been
neglected although it is a matter of great interest considering the current situation where
the power of international organizations in the world becomes increasingly bigger.
Keywords: state succession, international public law, intergovernmental
organizations, member of international organizations, successor state, continuing state,
Convention on Succession of States in respect of Treaties, Convention on Succession of
States in Respect of State Property, Archives and Debts.
1. Diachronic considerations
Since ancient times we can talk about the existence of some state associations,
organized as entities under a common goal, most of them having as basis of
establishment the principle of equality between members as well as the freedom of
adhesion (eg. Delian League from 5th century BC, who was a political and military
association with permanent nature).
However, first international organizations were established having as common
interest the communications on international rivers. Thus were formed the river
commissions such as, the Central Commission for Navigation on the Rhine and the
European Commission of the Danube, and only subsequently were created
organizations in other areas such as services like the International
Telecommunication Union (ITU); Universal Postal Union (U.P.U.); International
Bureau of Weights and Measures etc.
E-mail : vladoiu.nasty@gmail.com.
Law Review vol. I, issue 1, Januar
y
-June 2015, p. 13-21
14 NASTY MARIAN VLĂDOIU
It is easy to notice that prior to the onset of World War I, the already
established international organizations aimed mainly the technical-economic field,
and that only later, in the period between the two world wars other type of
organizations were born. Thereby was created the first political organization of
universal jurisdiction, the League of Nations, and subsequently more others as, the
International Labour Organisation (ILO), the Permanent Court of International
Justice (PCJI) and the International Commission on Air Navigation(ICAN) were set
up, organizations that were closely related and in collaboration with the League of
Nations.
The end of World War II has brought remarkable changes in terms of
international intergovernmental organizations, on June 26, 1945, in San Francisco,
being adopted the United Nations Charter, which led to the establishment of the
United Nations (UN).
2. Definition of international organizations and the constituent elements
A first definition of international organizations was proposed by the
International Law Commission according to which, an international organization
is "a collectivity of states established by the Treaty, endowed with a constitution
and common organs, possessing its own legal personality distinct from that of
Member States".
Although the definition was largely accepted by the doctrine, the Vienna
Convention on the law of treaties from 1969, in Article 2, defines international
organizations as "intergovernmental organizations", being preferred a more
general formulation, with focus on the quality of participants in the organization,
which must necessarily be states1.
International organizations are the result of mutual agreement of the states
establishing them, being classified under the public international law as secondary
legal subjects2.
But the mere agreement of the states will be not sufficient to qualify an
organization as an international organization. Therefore, it shall be fulfilled several
conditions:
- First, the states have to be members of that organization. Therefore, the
international organization must be an association of states, primary legal subjects
of international law. This element distinguishes the international
intergovernmental organizations from governmental international organizations
consisting of natural or legal persons of national law of the states on whose
territory were created.
- Secondly, the states should join under a multilateral constitutive treaty,
regardless of the name it has: Bylaws, Charter, Constitution, Pact etc.
1 R.M. Beşteliu, International Public Law, Vol. I, All Beck Publishing House, Bucharest, 2005, p. 49.
2 A. Nstase, B. Aurescu, International Public Law. Synthesis, 6th Edition, C.H. Beck Publishing
House, Bucharest, 2011, p. 115.
State succession to international intergovernmental organizations … 15
- Thirdly, under the constitutive treaty, the organization shall have its own
institutional structure carrying out specific activities for the fulfillment of the
objectives and mission of the organization.
Given these three elements, we draw the conclusion that international
organizations thus constituted will therefore have international legal personality,
distinct from that of its members (the founding states). Since the organization is
created by agreement of the states, it will acquire functional autonomy, which will
turn it into a separate subject of international law3.
3. State succession to international organizations under the international
legal order
3.1. The concept of succession in public international law
The institution of succession was taken from civil law, where we find it in the
form of transfer of rights and obligations either after the death of an individual
(assigning an inheritance) or after the termination of a legal person (by
bankruptcy).
In international law, however, the term succession is used only in terms of its
conventional meaning because it was not possible to arrive at a sum of rules, of
principles able to regulate the transfer of sovereignty over a territory from one
state to another4.
Therefore, we learn an initial idea, namely that, in international law the
concept of succession has no counterpart in terms of private individuals or legal
entities, but refers only to the transfer between states.
The topic of succession under public international law is an extremely complex
one, being attempted to encode all succession situations.
In this regard, within the UN International Law Commission, were negotiated
and adopted two multilateral treaties aiming to identify and regulate the general
trends used in practice in terms of solving various situations of state succession.
These are the Convention on Succession of States in respect of Treaties and Convention
on Succession of States in Respect of State Property, Archives and Debts, both adopted in
Vienna in 1978, respectively 1983. The latter though, so far, has not fulfilled the
required number of ratifications to enter into force.
These conventions have the merit to establish the first definition of succession
under the international law according to which, “succession of States” means the
replacement of one State by another in the responsibility for the international
relations of territory”.
The definition expressed coincide thus with what was stated also before in
doctrine, by succession occurring a substitution of the exercise of sovereignty of a
state with another, on a certain territory5.
3 A. Nstase, B. Aurescu, op. cit., p. 115.
4 R.M. Beşteliu, op. cit., p. 42.
5 Idem, p. 43.
16 NASTY MARIAN VLĂDOIU
3.2. The principles of state succession
Under the international law, when we refer to state succession, we take into
consideration not only the actual transmission of rights and duties from one state
to another but also the continuation of their existence ”in the hands” of the other
state.
In doctrine it has been even distinguished between the successor state and
continuing state.
The first one will supersede the predecessor state, its succession to the treaties,
assets and liabilities, being dependent on the enforcement of state succession rules,
and its succession or participation in international organizations being subject to
the admittance rules of any new member in the organization. The continuing state
shall be considered to be the same as the predecessor state, despite some factual
changes, assuming all the rights and obligations arising from international treaties
signed by the predecessor state and continuing to participate as a member of the
international organizations to which the predecessor state was party6.
It has been established that are principles of state succession under the
international law, the following:
1) Replacing the international legal order – refers to the fact that regardless of
how a territory changes, within that territory, the legal order of the predecessor
state shall be replaced with the legal order of the successor state;
2) The principle of sovereignty – the successor state is not the continuator of
predecessor state’s sovereignty, each one having its own international legal
personality;
3) The decisions are not compulsory – the successor state does not remain
bound by previous decisions taken by the predecessor state in international legal
relations where it was a party;
4) The successor state is not obliged to completely replace the international
legal order established by the predecessor state. There may be an interest for the
successor state in keeping certain elements of the old legal order, for example,
maintaining certain international commitments;
5) While in case of merger and dismantling operates the continuity of treaties
on the territory for which they were concluded or on the entire territory, in case of
transfer, as a general rule, the treaties that have been concluded by the transferor
state cease to have effect on the ceded territory, and only those concluded on the
ceded territory shall remain valid. Also, as a general rule, political treaties
disappear and the technical’s are kept7.
3.3. Succession in international organizations
A particular application of the rule of state succession to treaties is the
succession of states in international organizations.
6 A. Nstase, B. Aurescu, op. cit., p. 92-93.
7 Ibidem.
State succession to international intergovernmental organizations … 17
The state continuity subject typically occurs in cases where an element of the
state has undergone some significant changes (such as territorial transformation or
conversion of form of government). A claim of continuity is essentially a request to
continue its existence as a state, independently, in order to not disturb, despite
these radical changes, the international legal order.
Although the use of the concepts "continuity" and "state succession", as well as
the distinction between them have been criticized because they make a difficult
problem become even more confused by masking various circumstances and also
due to the complexity of the legal issues that arise in practice, it is however
recognized, that in certain areas of international law, the distinction is fundamental
and necessary. Whilst in the recent practice of states has been drew a line between
continuity and succession, the distinction between these two concepts is more
important in those cases where certain rights and obligations, as a rule, do not
transfer from the predecessor state to the successor. For example, in traditional
international law is clearly ruled that there is no succession in case of liability of
states and membership to international organisations8.
Between membership and succession should be made, however, the following
distinction: the membership is a corollary of the status of being party to a treaty by
which it is established an international organization, when succession to the
constituent treaty automatically imply obtaining membership in that organization.
Thus, the succession to the constituent treaty, prima facie an issue of the legality of
state succession to treaties, violates the rule of acquiring membership after having
performed the normal procedures for admittance as member in an international
organization.
Since international organizations can be classified in various ways, in terms of
acquiring membership there should be also made two important distinctions.
First, a distinction should be made between the categories of members who
may be "full members" and these have all the rights deriving from membership of
the organization, or can be “associate members”, in this case having only some
limited rights.
Typically, except few particular cases, in most international organizations, full
membership is attributed solely to sovereign and independent states (eg. UN,
IAEA, IFAD, ILO, IMO, UNESCO, WIPO etc.), to nations (eg. FAO) or countries
(eg. IMF, IBRD, IFC, Berne Union), while independent territories, since they are not
responsible for their conduct in international relations may become only associate
members9.
Secondly, in many constituent instruments of international organizations, a
distinction is made between the rules for acquiring membership. It is distinguished
between founding members, initial or original.
8 K.G. Buhler, State Succession and Membership in International Organizations: Legal Theories versus
Political Pragmatism, Kluwer Law International, Hague, 2001, p. 7- 8.
9 K.G. Buhler, op. cit., p. 19-20.
18 NASTY MARIAN VLĂDOIU
To get to know if a successor state has the right to participate in the
international organization to which the predecessor state was a party, we should
first understand the process of acquiring membership in an international
organization.
In most international organizations acquiring membership for others than
original members it is done following a formal process of admission. It can be a
dual process or a bilateral act, which requires a formal application or a statement of
acceptance from the state concerned, as well as a decision of admittance from the
competent organ of the organization.
An eloquent example of the requirement of following a formal process for
membership we can find stated in Article 4 of the UN Charter according to which:
„1. Membership in the United Nations is open to all other peace-loving states which
accept the obligations contained in the present Charter and, in the judgment of the
Organization, are able and willing to carry out these obligations.
2. The admission of any such state to membership in the United Nations will be
effected by a decision of the General Assembly upon the recommendation of the Security
Council.”
In general, however, many of the instruments of incorporation of international
organizations (eg, FAO, ITU, UNESCO, ILO, IMO, Council of Europe) provide a
bilateral procedure for admission of new members, that requires an approval, an
invitation, a formal request and an acceptance or accession obtained from a
qualified majority of the member states in the organization.
On the other hand, there are international organizations such as the World
Bank Group (IBRD, IFC, IDA) providing certain rules of exception. In these cases,
although admission of new members is subject to approval by states parties, the
competent organs have also the flexibility in admittance of new members.
In case of succession to international organisations, we are talking about a
successor state which, in order to gain membership in the organization to which
the predecessor state was a member, must express its desire to become part in the
organization's founding treaty and then follow the procedures for admission of
any new member.
Therefore, we can assert that in case of succession to international
organizations, the general rule is that the successor state is not the continuator of
predecessor state in terms of membership in the international organization, and
must satisfy by its own account the necessary conditions to become in turn
member in that organization.
However, over time, there have been cases in which the general rule has not
been applied. Such are the cases of Russia and Yugoslavia.
The dissolution of the Soviet Union led to a profound political change in
Central and Eastern Europe around 1990. This transformation has raised legal
issues relating to the disappearance of the state, the continuity of the state and the
succession of the state.
State succession to international intergovernmental organizations … 19
In this context, one of the constituent republics of the Soviet Union, Russia,
was declared continuator of USSR on the grounds that it comprises 51% of the
population USSR had and 77% of its territory. As a consequence, Russia has agreed
to be the continuator of the USSR as a permanent member of the UN Security
Council. Moreover, it could not be otherwise, because "if it would not be accepted
Russia’s identity with that of the former USSR it should have been probably
revised the UN Charter, since it would have been difficult to set up a succession
right regarding the permanent membership in the Security Council"10.
On the other hand, other constituent states of the former Soviet Union, known
as the "the Baltic states" had a different destiny.
In his book11, Malksoo asserted that the Baltic example illustrates the dilemma
between the legal fiction of continuity and the practical reality where the Soviet
Union occupied and completely managed the Baltic States. He observed, however,
that despite the fact that the Baltic States are recognized as continuators of the
pre-attached international legal personality, the continuity of legal personality does
not lead to the continuity of all important legal rights and obligations.
Determination of rights and relations was made more on the basis of political
factors and not by law enforcement12.
Thus, an important principle of modern states of Estonia, Latvia and Lithuania
is that their incorporation in the Soviet Union from 1940 to 1991 represents de facto
an illegal occupation. In 1991, when each Baltic country regained its independence
these three countries demanded recognition of continuity based on their status
before 1940. Many other countries have embraced the same view and were
disregarded as not being successor states of the USSR. Starting from these reasons,
the Baltic States were able to restore their diplomatic relations with various
countries, to reaffirm the treaties before 1940 that were still into force, and to
resume membership in many international organizations13.
As we already stated, the Yugoslavia example is another exception from the
rule. After separation of the constituent states of the Socialist Federal Republic of
Yugoslavia in 1991 and 1992, the former state, renamed the Federal Republic of
Yugoslavia, claimed to be continuator of Yugoslavia, despite the objections raised
by the new, now independent, republics. Therefore, representatives from Belgrade
continued to hold the seat of former Yugoslavia in the United Nations, although
the United States refused to recognize them this status.
As a consequence, since the remaining territory was less than half the
population and territory of the former federation, on 19 September 1992 the
Security Council (Resolution 777), and on 22 September the General Assembly,
10 R.M. Beşteliu, op. cit., p. 45.
11 A se vedea L. Malksoo, Illegal Annexations and State Continuity: The Case of the Incorporation of the
Baltic States by USSR, Leiden, Boston: Martinus Nijhoff, 2003.
12 Ibidem.
13 K.G. Buhler, op. cit., p. 177.
20 NASTY MARIAN VLĂDOIU
decided to refuse permission to the new federation to occupy a seat under the
name "Yugoslavia" in the General Assembly, arguing that the Socialist Federal
Republic of Yugoslavia was dissolved.
The Federal Republic of Yugoslavia (later renamed Serbia and Montenegro)
was admitted as a new member of the United Nations in 2000, upon request of the
new Yugoslav president and after going through the usual procedure of new
member’s admission.
In 2006, Montenegro declared its independence , so Serbia continued to hold
the chair of the federation.
4. Conclusions
The International Law Commission (ILC) expressed its opinion on state
succession topic and divided it in three main areas: a) state succession in respect of
treaties; b) succession in respect of rights and duties resulting from other sources
than treaties (revised in 1968 to read “succession of states in respect of matters
other than treaties”); c) succession in respect of membership of international
organizations.
Whilst the first two were assiduously discussed, which led ultimately to the
adoption of the two conventions mentioned, the 1978 Vienna Convention
Succession of States in respect of Treaties and the 1983 Vienna Convention on
Succession of States in Respect of State Property, Archives and Debts, the third
aspect, regarding the succession in respect of membership of international
organizations has been completely neglected and was not assigned to a Special
Rapporteur.
The same approach we found also under the Committee on Aspects of the Law
of State Succession of the International Law Association (ILA), where the topic of
succession in respect of membership of international organizations is only
mentioned in a preliminary report submitted in 1996 to the Helsinki Conference.
However, what is important in our present endeavour, in order to understand
the complexity of state succession, is to remember that under the Public
International Law, the term "succession" has a different meaning than in civil law,
an official definition of "state succession" being expressed in Article 2 (1)(b) of the
Vienna Convention of 1978, according to which, "succession of States means the
replacement of one State by another in the responsibility for the international
relations of territory".
This definition however, takes into account the territorial aspect of state
succession, the constituent nature of international organizations making
membership a personal right.
Throughout time, several countries have experienced significant changes in
their state. Whether the status was amended by extending the territory as a result
of winning state independence, whether a sovereign and independent state
State succession to international intergovernmental organizations … 21
suffered a "capitis deminutio" at the international level, despite the loss of status or
its extension, the continuator state remains subject of the internationally taken
rights and obligations14.
Concluding the above, in respect of state succession to international
intergovernmental organization topic, the general rule is that a successor state
must show willingness to be member in the international organization concerned
and also, must go through the new member’s admission procedures, the state
cannot be automatically considered as continuator of the predecessor state and,
moreover, party in the organization. Although, as we have seen, in practice there
have been exceptions to the rule, participation in international organizations of the
new state will not be achieved without respecting the specified international legal
order.
References
[1] R.M. Beşteliu, International Public Law, Vol. I, All Beck Publishing House,
Bucharest, 2005;
[2] K.G. Buhler, State Succession and Membership in International Organizations:
Legal Theories versus Political Pragmatism, Kluwer Law International, Hague, 2001;
[3] B. Selejan-Guan, L.M. Crciunean, International Public Law, 2nd Edition,
Hamangiu Publishing House, 2014;
[4] Malksoo, Illegal Annexations and State Continuity: The Case of the Incorporation
of the Baltic States by USSR, Leiden, Boston: Martinus Nijhoff, 2003
[5] A. Nstase, B. Aurescu, International Public Law. Synthesis, 6th Edition, C.H. Beck
Publishing House, Bucharest, 2011;
[6] R.A. Wessel, Dissolution and succession: The transmigration of the soul of
international organizations, Twente University.
14 K.G. Buhler, op. cit., p. 7.