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may or must succeed to international rights and obliga- denominated "dispositive" or "localized," was regarded
tions may vary with the degree of control it retained over as automatically binding on a new state. 148 A "disposi-
these matters when it was a protectorate. 143 tive" or "localized" treaty is one which imposes restric-
d. Since World War 11, state succession has most fre- tions of a continuing and permanent character on the ter-
quently taken place not in the context of annexation, ces- ritory of a state, or which is by its character related to a
sion, or federation, but in the context of independence or specific territory, or applied to a specific territory. The
secession of former colonial territories. When the classical categorization of these treaties has not been clearly
writers of international law dealt with the problem of the defined. Illustrations often employed include boundary
effects of change of sovereignty, they introduced the treaties and treaties creating "international servitude"
Roman law concept of succession after death. 144 This such as transit rights, rights with request to rivers,
became known as the theory of "universal" succession, customs, free zones, and demilitarized zones. The tradi-
as it resulted in the view that the successor state inherited tional view that automatic succession takes place with
all the treaties, debts, and contracts of its predecessor. In regard to "dispositive" or "localized" treaties is not com-
the nineteenth and early twentieth centuries, many writers pletely borne out by recent practice. Treaties for military
and governments reacted strongly against this approach, bases, for example, which were thought to fall within this
and arrived at the opposite conclusion: that new, or suc- category, have often been renegotiated. 149 Moreover,
cessor, states did not, as a matter of international law, in- boundary treaties, which more clearly come within this
herit any of the rights or obligations of the predecessor classification, have not been uniformly inherited. 150
state (with the possible exception of "dispositive" or g. Actual state practice with regard to succession to
"ley treaties). 145 This became known as the "clean treaties since World War I1 has been neither consistent
slate" theory. 146 Neither theory appears to accord with nor coherent. None of the traditional doctrines satisfac-
present state practice, nor does either, in its extreme torily explains contemporary approaches toward state suc-
form, result in a satisfactory solution of the problems aris- cession. At least two policies, however, seem to be para-
ing from a change in international status. The practice of mount. First, most new states (with the exception of
states in the matter of succession is inconsistent, and it is Israel, the Philippines, South Korea, Upper Volta, and
impossible to arrive at a general theory or set of rules ap- Algeria) have not applied the "clean slate" doctrine in all
plicable to all categories of legal relationships. it. rigidity. They have sought to avoid the sudden, com-
e. Although a "new" state generally succeeds to some plete, and automatic discontinuity in treaty relations that
international agreements, it is not charged with meeting would result from a total application of the doctrine. Sec-
all of the international obligations of the predecessor state ond, most new states have not expressly rejected the
unless it enterxinto a devolution agreement. Under this "clean slate" doctrine and have not adhered to any other
arrangement, the new state succeeds to all of the treaty general rule, such as one of "universal" succession. They
obligations of the former. These agreements appear to have tended, on the other hand, to adopt techniques
have two purposes: (1) to relieve the former colonial which would give them the freedom to pick and choose
power from the performance of treaty obligations in a ter- the treaty rights and obligations they wish to retain. Most
ritory to which it had previously applied the treaty, but of the older states have refrained from attempting to
over which it no longer exercises legal control, and (2) to coerce newer states into acceptance of any general
bind the newly independent state to perform the obliga- doctrine and have accepted this "pick and choose"
tions imposed by the treaties and to enable it to enjoy method of treaty succession.
rights under treaties. 147 8-36. Summary. As has been noted, international agree-
Devolution agreements have had the effect of prevent- ments are now the most important source of codified in-
ing undesirable discontinuities. However, new states have ternational jurisprudence. Military attorneys stationed
been increasingly reluctant of late to use this device, ap- overseas are responsible for providing legal advice in an
parently because they fear they may commit themselves environment almost completely controlled by agreements
to abiding by agreements of which they might not have between the host and sending states. For these reasons, it
been aware, or which they do not fully understand. is essential that the attorney possess a basic understandmg
f. Traditionally, a special category of treaties, usually of the particular norms which comprise "treaty law." The
contents of this chapter should provide this degree of
familiarity.
'43. See, e.g., Nationality Decrees in Tunis and Morocco (19231
P.C.I.J., ser. B, No. 4 at 30,; Rights of Nationals of the United States of
America in Morocco, (19521 I.C.J. 176. 148. 2 O'ComeU, State Succession in Municipal Law and Interna-
144. See H. Lauterpacht, Private Law Sources and Analogies of In- tional Law 231-72 (1967).
ternational Law 125 (1927). 149. See Esgain, Militaty Servitudes and the New Nations, in The
145. These types of agreements are discussed in chap. 7, supra. New Nations in International Law and Diplomacy 52-97 (O'Brien ed.
'46. See Keith, The Theory of State Succession (1907). 1963).
147. See Lauterpacht, State Succession and Agreementr for the 150. International Law Association, The Ufect of Independence on
Inheritance of Treaties, 7 Int? Comp. L.Q. 524-30 (1958). Treaties 354-55, 361-62, 364-65, 371-73 (1965).