1

Table of Cases.

Bankovic v Belgium et al (2001) 11 B.H.R.C 435……………………………7

Ford v United States 47 Sup. Ct. 531…………………………………………8

Haile Selassie v Cable and Wireless Ltd (No.2) 1939……………………….6

US v Gonzalez 776 F.2d 931 (1985)…………………………………………..8

Table of Treaties and Conventions.

 Vienna Convention on Consular Relations, Vienna 1963……………….9

 Vienna Convention on Succession of States in Respect of Treaties……2

 Vienna Convention on The Law of Treaties, Vienna 1969……………….9

List of Abbreviations.

FRY Federal Republic of Yugoslavia

UN United Nations

USSR Union of Soviet Socialist Republics

EU European Union

ECHR European Court of Human Rights

ICJ International Court of Justice

 2

Introduction

In International Law, the “‘succession of states’ means the replacement of one

State by another in the responsibility for the International relations of the
territory”1 It is important to highlight from the onset that ‘Sovereign states, and not
their individual governments, are the primary subjects of International law’.2 State
succession can only be said to occur when there has been a transfer of
sovereignty over a particular territory and a resultant discontinuity in statehood
and its affiliated responsibilities. Thus if the president of Utopia fled after a coup,
but there was no attempt to break-up the state then this would merely be a
change in government, albeit undemocratic. This essay is concerned with
advising Alicanto on the issues of state succession, its objections to Ravisia’s
claim to be the continuation of Utopia and the status of the UN membership of
the two states, the issue of Jurisdiction by a critical discussion of International law
provisions.

1 Vienna Convention on Succession of States in Respect of Treaties 17 I.L.M. 1488

2 Vokovitsch. M.J. Righting Wrongs: Towards a New Theory of State Succesion to Responsibility
for International Delicts. Columbia Law Review, Vol. 92, No.8 (Dec 1992), p 2165 <
http://www.jstor.org/stable/1123019?seq=4 > accessed 27 Dec 2008
 3

Genesis.

The starting point in discussing the status of Alicanto and Ravisia is to ask, ‘does
the state concerned claim to be a new state or does it claim to be a continuation
of a previously existing state and second, how far have its claims been accepted
by other states?’3 As Prof. Crawford says:

there is a fundamental difference between state continuity and state succession:

that is to say, between cases where the ‘same’ state can be said to exist despite
changes in territory or population, and cases where one state can be said to
have replaced another with respect to certain territory.4

3 Malanczuk P, 1997, Akehurst”s Modern Introduction to International Law, 7th ed, Routledge,
p161

4 James Crawford. The Creation of States in International Law. Oxford University Press, 2nd
edition, 2006. P 400.
 4

a) State succession

Utopia was a federalist Republic and ‘the basic feature of federal states is that
authority over internal affairs is divided by the constitution between the federal
authorities and the member states of the federation, while foreign affairs are
usually conducted by the federal authorities’.5 State practice has been anything
but consistent with the disintegration of federal unions as was evidenced by the
breakup of the former USSR and the former FRY. “The rarity of such events,
which occur in different political contexts, accounts for the existence both of
different and mutually exclusive theories and, even more so, of contradictory
practice.” 6 This has led to pundits describing to the status of International law on
state succession as ‘chaotic’7

There’s consensus that the former USSR ended with the establishment of the
commonwealth of Independent States, which declared they would support
‘Russia’s continuance of the membership of the USSR in the UN, including
permanent membership of the Security Council and other International organs.’8
A corresponding statement on the latter point was transmitted by Russia to the
UN secretary General on 24 Dec 1991. There was no objection by any country to
Russia taking the seat of the USSR at the UN and this is an important difference
between Russia and the Ravisia declaration that was objected by Alicanto and

5 Malanczuk (n 1) 81

6 The continuity and succession of states, by reference to the former USSR and Yugoslavia
I.C.L.Q. 1993,42(3),473-493 http://login.westlaw.co.uk/app/document?
docguid=I06321CB0618E11DC98689326503A8F7B accessed on Saturday, 20 December, 2008
at 15:20 GMT

7 S. Oeter, German Unification and State Succession, ZaorRV 51 (1991), 352

8 Malanczuk (n 1) 166
 5

the former president of Utopia. Indeed it can properly be construed as being the
missing link that Ravisia needed in order to successfully claim to continuity of the
former Utopia.

In 1995, the EU made it one of the conditions for the recognition of the
breakaway states of the former FRY, was that all successor states to former
Yugoslavia had recognised each other. This State practice is good precedent
that can be applied in this case in refuting Ravisia’s claim to continuity. In the
Yugoslavian case, in 1992, the EU expressed its willingness to recognize
Macedonia as an independent state and soon thereafter, Slovenia, Bosnia-
Herzgovina and Croatia were admitted as members of the UN. The Security
Council however, denied the claim of the FRY to automatically succeed to the
membership of former Yugoslavia that had ceased to exist. Similarly, Ravisia will
have to make fresh application to membership of the UN since the General
Assembly rejected its admission. This has important ramifications, firstly it clearly
illustrates that member states do not take Ravisia to be the continuation of Utopia
since they wanted to see a referendum taken in Ravisia approving the move to
Independence, this is a requirement akin to that imposed on former states of the
FRY that were viewed as new states. A parallel can be drawn between this and
the fact that:

Since no state objected to Russia’s continuance of the Soviet

Union, it was not obliged to apply for membership of these
organizations while other former Soviet Republics considered to be
successor states, had to go through the usual procedure of
application for membership.9

Objective and Subjective factors may be taken into account such as the fact that
Ravisia does not encompass a majority of the land mass or population of Utopia

9 R. Mullerson; The Continuity and Succession of States, by reference to the former USSR and
Yugoslavia, [1993] International & Comparative Law Quarterly 473
<http://login.westlaw.co.uk/app/document?
&src=rl&srguid=ia744c00c0000011eae9bbbe07c26fe4e&docguid=I06321CB0618E11DC9868932
6503A8F7B&hitguid=I06321CB0618E11DC98689326503A8F7B&spos=1&epos=1&td=15&crumb
-action=append&context=3> accessed on 27 Dec 2008.
 6

unlike ‘Russia, which even after dissolution of the USSR remains much bigger
geographically and demographically than the other states of the former Soviet
Union.’10 But as Prof. Crowford observes, “where there are substantial changes
in the entity concerned, continuity may depend upon recognition (as was the
case of India after 1947)”11

The recognition of a government in exile is something of an anomaly in

International Law.’12 The effect of the Utopian president’s denouncement of the
attempted break-up of Utopia nevertheless begs some attention. In Haile
Selassie v Cable and Wireless Ltd13 the Plaintiff, Emperor Selassie was in exile
after the invasion of his country by Italy. Britain recognised the Italian
administration as the de facto government in the territory but also continued to
acknowledge the Emperor as the de jure sovereign. The trial judge interpreted
several decisions as indicating that a British court could not give effect to the acts
of a recognised de jure government which related to an area actually controlled
by a rival authority which Britain recognised as the de facto government. General
state practice indicates that States recognize States and not governments hence
a change in government even though undemocratic does not affect the statehood
of that Republic, here however, there has been a recognised succession and the
admission of Alicanto into the UN seems to compound to the fact that the
president of Utopia is no longer recognised as the Sovereign as Utopia has
ceased to exist.

10 ibid

11 J. Crawford (n. 4) p 400

12 Hott D., Public International Law in the Modern World, 1987, Pitman Publishing p 101.

13 (No.2) 1939
 7

b) State Jurisdiction.

Jurisdiction is an aspect of sovereignty and refers to judicial, legislative and

administrative competence.14 There are five general principals on which criminal
jurisdiction, may be based: the territorial principal, the nationality principal,
passive nationality principle, protective principle and the universality principle.

The duty of non intervention in the area of exclusive jurisdiction of other states is
a principal corollary of the sovereignty and equality of states. No outside authority
can annul or prevent the internally valid act of state power but since states do not
exist in vacuum, international law provides for parallel jurisdiction claims. In
Bankovic v Belgium et al15, the ECHR characterized state jurisdiction as ‘primarily
territorial’ and any other bases of jurisdiction are defined and limited by the
sovereign territorial rights of other relevant states.

‘The territorial principal arises from the view that a state has absolute and
exclusive authority over people, things and events within its own territory and
therefore may exercise jurisdiction over them in all cases unless there is
immunity.’16 This principal has a lot of practical advantages in this instance
including the convenience of the forum, the ease of calling witnesses, Alicanto
security agents are also in a better position to collect evidence that will assist the
prosecution, it is more cost effective to conduct the trial in Alicanto than having to
transport witnesses and evidence to either Ravisia or Malin. The assumption of
jurisdiction is justified if the entire conspiracy or the formation of it took place in
Alicanto.

‘Nationality as a mark of allegiance and an aspect of sovereignty is also generally

recognised as a basis for jurisdiction over extra-territorial acts.’17 This principal

14 Brownlie I, Principles of Public International Law, 7th ed, Oxford University Press, Oxford,
2008, p 299

15 (2001) 11 B.H.R.C 435

16 Hott D., Public International Law in the Modern World, 1987, Pitman Publishing p 136

17 (n14) p 303
 8

may also be extended by reliance on residence as a connection of allegiance

owed by aliens. Malin’s claim to jurisdiction over Donovan is therefore grounded
primarily on the nationality principal although by extension Alicanto can also
claim this principal on the basis of the fact that Donovan was a resident.
However as discussed hitherto, the best claim Alicanto has is that of Territorial
jurisdiction as it has universal recognition. Ravisia may also base its jurisdiction
claim over the co-conspirators on this principal since they are nationals of
Ravisia. State practice has shown that the principle is mostly confined to the
most serious of offences. Ravisia’s claim may thus be more meritorious than
Malin’s since it can base its claim on nationality and the protective principal.
Malin’s claim may be refuted since the nationality principal is restricted by the
master principal of non-intervention with legitimate affairs of states.

The protective or security principal is claimed by most states and ‘generally

ranked as the basis of an auxiliary competence.’18 The United States has
asserted jurisdiction over foreigners on the high seas on the basis of the
protective principal as in US v Gonzalez 19
this rationale is clearly linked to the
protection of vital state interests20 Ravisia can thus base its claim to jurisdiction
on this principle as it is the most applicable to it. In Ford v United States21 it was
held that the prisoners had done acts outside the US the results of which took
effect in the US22. It can be distinguished by virtue of the fact that here, the
conspirators were arrested before they had carried out their plan.

18 Harris DJ, Cases and Materials on International Law, sixth Edition, Sweet & Maxwell, London,
2004,p 267

19 776 F.2d 931 (1985)

20 Evans M.D International Law, second edition, Oxford University Press, Oxford, 2006, p348

21 47 Sup. Ct. 531

22 L.H ,International Law : Extraterritorial Criminal Jurisdiction, Michigan Law Review,

Vol. 26, No. 4 (Feb., 1928) p 432<http://www.jstor.org/stable/1279724?
seq=4&Search=yes&term=conspiracy&term=criminal&term=state&term=jurisdictio
n&list=hide&searchUri=/action/doBasicSearch%3FQuery%3Dstate%2Bjurisdiction
%2Bin%2Bcriminal%2Bconspiracy%26x%3D0%26y%3D0%26wc
%3Don&item=19&ttl=6101&returnArticleService=showArticle&resultsServiceName=
doBasicResultsFromArticle > accessed on 5th January 2009
 9

It is clear that ‘Jurisdiction is not based upon a principal of exclusiveness: the

same acts may be within the lawful ambit in one or more jurisdictions.’23 It is
significant that although Alicanto has refused extradition, it has shown itself
willing to try the case and has even commenced criminal proceedings.

Still, ancillary issues abound. First, with the exception of crimes under
International Law (war crimes, genocide and crimes against humanity), and in the
absence of treaty, surrender of an alleged criminal cannot be demanded as of
right. International Law gives no general right to either Ravisia or Malin to
demand the extradition of the conspirators. A leading general principal of law is
that of double criminality, that the act charged must be criminal under the laws of
both the state of refuge and the requesting state. It is worth pointing out once
again that Alicanto is not the ‘state of refuge’ since it has brought proceedings
against the conspirators hence arguments for extradition may not persuasive
since Alicanto is not abusing its sovereign power. Another principle is that of
specialty, according to which the person surrendered shall be tried and punished
for offences for which extradition had been requested and granted.

On the issue of denying Donovan consular assistance, the Vienna Convention is

instructive, it holds that: ‘The establishment of consular relations between states
takes place by mutual consent’24 and Alicanto is not party to this convention
hence is not bound by the convention except to the extent to which it accepted.
Another convention that reflects customary International law is that, ‘A treaty
does not create either obligations or rights for a third state without its consent.’25

Extradition can be refused if Malin is not expected to observe reasonable

procedural standards. Alicanto can argue that it would pervade justice if Donovan
was extradited back to his country since once there, neither Alicanto nor Ravisia
can force the state to bring criminal proceedings against him.

23 (n 14) p 312

24 Vienna Convention on Consular Relations, Vienna 1963, Article 2, s.1 (1)

25 Vienna Convention on The Law of Treaties, Vienna 1969, Article 34

 10

Closing Remarks.

In conclusion, it has been discussed that Alicanto is a new state for the purpose
of International law as is Ravisia, neither is the continuation of Utopia which has
consequently disintegrated. The fact that the General Assembly rejected its
membership of the UN confirms this and also shows that it is regarded as a new
state. As it has been pointed out jurisdiction is primarily territorial so Alicanto can
be said to have ‘better title’ than the base of jurisdiction claimed by Ravisia and
Malin and neither has the legal mandate to force her to extradite the
conspirators. Alicanto cannot also be faulted for denying Donovan consular
assistance as has been shown but it would nevertheless be advisable for
Alicanto to use the UN General Assembly as a forum to settle the dispute or
initiate diplomatic negotiations and arbitrations instead of waiting for Ravisia and
Malin to take the matter to the ICJ. Ravisia and Malin may choose to refer the
matter but they also recognize that Alicanto has locus standi in trying the matter
and that that territorial jurisdiction is as outlined, paramount.
 11

Bibliography.

Primary texts.

➢ Brownlie I, Principles of Public International Law, seventh edition,

Oxford University Press, Oxford, 2008.
➢ Evans M.D International Law, second edition, Oxford University
Press, Oxford, 2006
➢ Harris DJ, Cases and Materials on International Law, sixth Edition,
Sweet & Maxwell, London, 2004.
➢ Hott D., Public International Law in the Modern World, 1987, Pitman
Publishing.
➢ James Crawford. The Creation of States in International Law.
Oxford: Oxford University Press, 2nd edition, 2006.
➢ Malanczuk P, 1997, Akehurst”s Modern Introduction to International Law,
7th ed, Routledge.

Articles and Journals.

➢ L.H ,International Law : Extraterritorial Criminal Jurisdiction, Michigan Law

Review, Vol. 26, No. 4 (Feb., 1928) p
432<http://www.jstor.org/stable/1279724?
seq=4&Search=yes&term=conspiracy&term=criminal&term=state&term=ju
risdiction&list=hide&searchUri=/action/doBasicSearch%3FQuery%3Dstate
%2Bjurisdiction%2Bin%2Bcriminal%2Bconspiracy%26x%3D0%26y
%3D0%26wc
%3Don&item=19&ttl=6101&returnArticleService=showArticle&resultsServi
ceName=doBasicResultsFromArticle > accessed on 5th January 2009.
 12

➢ R. Mullerson; The Continuity and Succession of States, by reference to

the former USSR and Yugoslavia, [1993] International & Comparative Law
Quarterly473<http://login.westlaw.co.uk/app/document?
&src=rl&srguid=ia744c00c0000011eae9bbbe07c26fe4e&docguid=I06321
CB0618E11DC98689326503A8F7B&hitguid=I06321CB0618E11DC98689
326503A8F7B&spos=1&epos=1&td=15&crumb-
action=append&context=3> accesed on 27 Dec 2008.

➢ S. Oeter, German Unification and State Succession, ZaorRV 51 (1991), in

Malanczuk P, 1997, in Akehurst”s Modern Introduction to International
Law, 7th ed, Routledge.

➢ The continuity and succession of states, by reference to the former USSR

and Yugoslavia I.C.L.Q.1993,42(3),473-493.
<http://login.westlaw.co.uk/app/document?
docguid=I06321CB0618E11DC98689326503A8F7B> accessed on
Saturday, 20 December, 2008.

➢ Vokovitsch. M.J. Righting Wrongs: Towards a New Theory of State

Succesion to Responsibility for International Delicts. Columbia Law
Review, Vol. 92, No.8 (Dec 1992). <
http://www.jstor.org/stable/1123019?seq=4 > accessed 27 Dec 2008.