Digest of United States Practice in International Law

Section 5. Newly Independent States Formed from Two or More Territories

Article 29

Newly independent states formed from two or more territories

1. Articles 15 to 28 apply in the case of a newly independent state formed from two or more territories.

2. When a newly independent state formed from two or more territories is considered as or becomes a party to a treaty by virtue of Articles 16, 17 or 23 and at the date of the succession of states the treaty was in force, or consent to be bound had been given, in respect of one or more, but not all, of those territories, the treaty shall apply in respect of the entire territory of that state unless:

(a) it appears from the treaty or is otherwise established that the application of the treaty in respect of the entire territory would be incompatible with its object and purpose or would radically change the conditions for the operation of the treaty;

(b) in the case of a multilateral treaty not falling under Article 16, paragraph 3, or under Article 17, paragraph 4, the notification of succession is restricted to the territory in respect of which the treaty was in force at the date of the succession of states, or in respect of which consent to be bound by the treaty had been given prior to that date;

(c) in the case of a multilateral treaty falling under Article 16, paragraph 3, or under Article 17, paragraph 4, the newly independent state and the other states parties or, as the case may be, the other contracting states otherwise agree; or

(d) in the case of a bilateral treaty, the newly independent state and the other state concerned otherwise agree.

3. When a newly independent state formed from two or more territories becomes a party to a multilateral treaty under Article 18 and by the signature or signatures of the predecessor state or states it had been intended that the treaty should extend to one or more, but not all, of those territories, the treaty shall apply in respect of the entire territory of the newly independent state unless:

(b) in the case of a multilateral treaty not falling under Article 18, paragraph 4, the ratification, acceptance or approval of the treaty is restricted to the territory or territories to which it was intended that the treaty should extend; or

(c) in the case of a multilateral treaty falling under Article 18, paragraph 4, the newly independent state and the other states parties or, as the case may be, the other contracting states otherwise agree.

PART IV

UNITING AND SEPARATION OF STATES

Article 30

Effects of a uniting of states in respect of treaties in force at the date of the

succession of states

1. When two or more states unite and so form one successor state, any treaty

in force at the date of the succession of states in respect of any of them continues in force in respect of the successor state unless:

(a) the successor state and the other state party or states parties otherwise agree; or

(b) it appears from the treaty or is otherwise established that the application of the treaty in respect of the successor state would be incompatible with its object and purpose or would radically change the conditions for the operation of the treaty.

2. Any treaty continuing in force in conformity with paragraph 1 shall apply only in respect of the part of the territory of the successor state in respect of which the treaty was in force at the date of the succession of states unless:

(a) in the case of a multilateral treaty other than one falling within the category mentioned in Article 16, paragraph 3, the successor state makes a notification that the treaty shall apply in respect of its entire territory;

(b) in the case of a multilateral treaty falling within the category mentioned in Article 16, paragraph 3, the successor state and all the parties otherwise agree; or

3. Paragraph 2(a) does not apply if it appears from the treaty or is otherwise established that the application of the treaty in respect of the entire territory of the successor state would be incompatible with its object and purpose or would radically change the conditions for the operation of the treaty.

Article 31

Effects of a uniting of states in respect of treaties not in force at the date of the succession of states

1. Subject to paragraphs 3 and 4, a successor state falling within Article 30 may, by making a notification, establish its status as a contracting state to a multilateral treaty which is not in force if, at the date of the succession of states, any of the predecessor states was a contracting state to the treaty.

2. Subject to paragraphs 3 and 4, a successor state falling within Article 30 may, by making a notification, establish its status as a party to a multilateral treaty which enters into force after the date of the succession of states if at that date any of the predecessor states was a contracting state to the treaty.

3. Paragraphs 1 and 2 do not apply if it appears from the treaty or is otherwise established that the application of the treaty in respect of the successor state would be incompatible with its object and purpose or would radically change the conditions for the operation of the treaty.

4. If the treaty is one falling within the category mentioned in Article 16, paragraph 3, the successor state may establish its status as a party or as a contracting state to the treaty only with the consent of all the parties or of all the contracting states.

5. Any treaty to which the successor state becomes a contracting state or a party in conformity with paragraph 1 or 2 shall apply only in respect of the part of the territory of the successor state in respect of which consent to be bound by the treaty had been given prior to the date of the succession of states unless:

(a) in the case of a multilateral treaty not falling within the category mentioned in Article 16, paragraph 3, the successor state indicates in its notification made under paragraph 1 or 2 that the treaty shall apply in respect of its entire territory; or

(b) in the case of a multilateral treaty falling within the category men

tioned in Article 16, paragraph 3, the successor state and all the parties or, as the case may be, all the contracting states otherwise agree.

6. Paragraph 5(a) does not apply if it appears from the treaty or is otherwise established that the application of the treaty in respect of the entire territory of the successor state would be incompatible with its object and purpose or would radically change the conditions for the operation of the treaty.

Article 32

Effects of a uniting of states in respect of treaties signed by a predecessor state subject to ratification, acceptance or approval

1. Subject to paragraphs 2 and 3, if before the date of the succession of states one of the predecessor states had signed a multilateral treaty subject to ratification, acceptance or approval, a successor state falling within Article 30 may ratify, accept or approve the treaty as if it had signed that treaty and may thereby become a party or a contracting state to it.

2. Paragraph 1 does not apply if it appears from the treaty or is otherwise established that the application of the treaty in respect of the successor state would be incompatible with its object and purpose or would radically change the conditions for the operation of the treaty.

3. If the treaty is one falling within the category mentioned in Article 16, paragraph 3, the successor state may become a party or a contracting state to the treaty only with the consent of all the parties or of all the contracting states. 4. Any treaty to which the successor state becomes a party or a contracting state in conformity with paragraph 1 shall apply only in respect of the part of the territory of the successor state in respect of which the treaty was signed by one of the predecessor states unless:

(a) in the case of a multilateral treaty not falling within the category mentioned in Article 16, paragraph 3, the successor state when ratifying, accepting or approving the treaty gives notice that the treaty shall apply in respect of its entire territory; or

(b) in the case of a multilateral treaty falling within the category mentioned in Article 16, paragraph 3, the successor state and all the parties or, as the case may be, all the contracting states otherwise agree.

5. Paragraph 4(a) does not apply if it appears from the treaty or is otherwise established that the application of the treaty in respect of the entire territory of the successor state would be incompatible with its object and purpose or would radically change the conditions for the operation of the treaty.

Article 83

Succession of states in cases of separation of parts of a state

1. When a part or parts of the territory of a state separate to form one or more states, whether or not the predecessor state continues to exist:

(a) any treaty in force at the date of the succession of states in respect of the entire territory of the predecessor state continues in force in respect of each successor state so formed;

(b) any treaty in force at the date of the succession of states in respect only of that part of the territory of the predecessor state which has become a successor state continues in force in respect of that successor state alone. 2. Paragraph 1 does not apply if:

(a) the states concerned otherwise agree; or

(b) it appears from the treaty or is otherwise established that the application of the treaty in respect of the successor state would be incompatible with its

object and purpose or would radically change the conditions for the operation of the treaty.

3. Notwithstanding paragraph 1, if a part of the territory of a state separates from it and becomes a state in circumstances which are essentially of the same character as those existing in the case of the formation of a newly independent state, the successor state shall be regarded for the purposes of the present articles in all respects as a newly independent state.

Article 34

Position if a state continues after separation of part of its territory

When, after separation of any part of the territory of a state, the predecessor state continues to exist, any treaty which at the date of the succession of states was in force in respect of the predecessor state continues in force in respect of its remaining territory unless:

(a) it is otherwise agreed;

(b) it is established that the treaty related only to the territory which has separated from the predecessor state; or

(c) it appears from the treaty or is otherwise established that the application of the treaty in respect of the predecessor state would be incompatible with its object and purpose or would radically change the conditions for the operation of the treaty.

Article 35

Participation in treaties not in force at the date of the succession of states in cases of separation of parts of a state

1. Subject to paragraphs 3 and 4, a successor state falling within Article 33, paragraph 1, may by making a notification, establish its status as a contracting state to a multilateral treaty which is not in force if, at the date of the succession of states, the predecessor state was a contracting state to the treaty in respect of the territory to which the succession of states relates.

2. Subject to paragraphs 3 and 4, a successor state falling within Article 33, paragraph 1, may by making a notification, establish its status as a party to a multilateral treaty which enters into force after the date of the succession of states if at that date the predecessor state was a contracting state to the treaty in respect of the territory to which the succession of states relates.

Article 36

Participation in cases of separation of parts of a state in treaties signed by the predecessor state subject to ratification, acceptance or approval

1. Subject to paragraphs 2 and 3, if before the date of the succession of states the predecessor state had signed a multilateral treaty subject to ratification, acceptance or approval and the treaty, if it had been in force at that date, would have applied in respect of the territory to which the succession of states relates, a successor state falling within Article 33, paragraph 1, may ratify, accept or

approve the treaty as if it had signed that treaty and may thereby become a party or a contracting state to it.

Article 37
Notification

1. Any notification under Article 30, 31 or 35 must be made in writing.

2. If the notification is not signed by the Head of State, Head of Government, or Minister for Foreign Affairs, the representative of the state communicating it may be called upon to produce full powers.

3. Unless the treaty otherwise provides, the notification shall:

(a) be transmitted by the successor state to the depositary or, if there is no depositary, to the parties or the contracting states;

(b) be considered to be made by the successor state on the date on which it has been received by the depositary or, if there is no depositary, on the date on which it has been received by all the parties, or, as the case may be, by all the contracting states.

4. Paragraph 3 does not affect any duty that the depositary may have, in accordance with the treaty or otherwise, to inform the parties or the contracting states of the notification or any communication made in connection therewith by the successor state.

5. Subject to the provisions of the treaty, such notification or communication shall be considered as received by the state for which it was intended only when the latter state has been informed by the depositary.

Article 38

Cases of state responsibility and outbreak of hostilities

The provisions of the present articles shall not prejudge any question that may arise in regard to the effects of a succession of states in respect of a treaty from the international responsibility of a state or from the outbreak of hostilities between states.

Article 39

Cases of military occupation

The provisions of the present articles do not prejudge any question that may arise in regard to a treaty from the military occupation of a territory.

Comments of the United States on the Draft Articles on
Succession of States to Treaties

Introduction

The Government of the United States has reviewed with great interest the draft articles on Succession of States in Respect of Treaties as adopted in second reading by the International Law Commission in the course of its twenty-sixth (1974) session. In its view, the revisions that the Commission has made in the articles on the basis of the comments of governments has resulted in a draft with considerably less questions and open issues than the

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