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Consensual Merger As a Means of State Succession and Its Relation to Treaty Obligations

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Consensual Merger As a Means of State Succession and Its Relation to Treaty Obligations Case Western Reserve Journal of International Law Volume 13 Issue 2 Article 19 1981 Consensual Merger as a Means of State Succession and Its Relation to Treaty Obligations Ronald J. Klein Follow this and additional works at: https://scholarlycommons.law.case.edu/jil Part of the International Law Commons Recommended Citation Ronald J. Klein, Consensual Merger as a Means of State Succession and Its Relation to Treaty Obligations, 13 Case W. Res. J. Int'l L. 413 (1981) Available at: https://scholarlycommons.law.case.edu/jil/vol13/iss2/19 This Note is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Consensual Merger as a Means of State Succession and its Relation to Treaty Obligations by Ronald J. Klein* I. INTRODUCTION M ODERN DAY STATES have become increasingly affected by various nation's implementation of social, economic, and military aid and subsequent regulation. As a result, maintenance of internationally agreed upon rights and obligations has become a vital goal, achievement of which should be sought through daily intergovernmental contact. This need for international stability has been threatened by the accelerated rate of state succession. The twentieth century has witnessed consecutive decolonization and self-determination efforts fostered by various nation- ality groups. Each time a state succession occurs, the new state exhibits a completely new identity. This factor raises the question of how interna- tional relations can progress without a guarantee of bilateral or multilat- eral compliance with established rights. This note will examine some of the various forms of state succession, with particular emphasis on consensual merger. In addition, the analysis will specifically examine successor states' treaty rights in relation to cus- tomary international law and the newly drafted Vienna Convention on the Succession of States in Respect of Treaties.1 The United Arab Repub- lic (U.A.R.), a past consensual merger between Egypt and Syria, will be used as an example for the purpose of analysis throughout the note. The U.A.R., which was established in 1958 with the intent of creating a pan- Arab empire, has been the most successful of the many Mideast merger 2 attempts and will therefore serve as a helpful model. *Case Western Reserve University School of Law, J.D. candidate (1982). Vienna Convention on Succession of States in Respect of Treaties, U.N. Doc. A/ CONF. 80/31, as corrected by A/CONF. 80/31 Corr. 2 of October 27, 1978, reprinted in 17 INTERNATIONAL LEGAL MATERIALS 1488 (1978). 2 Since the aborted attempt by Nasser to form a pan Arab state, a large number of other mergers have been set up and have failed. They are: Iraq and Jordan from February, 1958 to July, 1958; the United Arab Republic and the Kingdom of Yemen, which was never implemented; Egypt, Syria, and Iraq in April, 1963 also never implemented; Egypt and Iraq in May, 1964 and Egypt and Yemen in July, 1964, neither of which were ever put into effect; Egypt, Libya, Sudan, and Syria reached an accord in April, 1971, but it too was annulled; Libya and Egypt in August, 1972 also failed; Libya and Tunisia in January, 1974 was never CASE W. RES. J. INT'L L. Vol. 13:413 II. STATE SUCCESSION AND ITS VARIATIONS The term succession of states is commonly used to describe the evolution of a state into a new or already established sovereign containing an increased or diminished land mass.8 Personal unions, real unions, fed- erations, confederations and consensual mergers are but a few of the cata- lysts through which state succession occurs." Personal unions exist when states are independent, self-governing entities, but linked by the same ceremonial leader or ruler.' A modern example of this form is the aggre- gate of Commonwealth countries under the British crown. Both Canada and Australia, although separate states, owe allegiance to the crown of England because of their common historical tradition. Alternatively, real unions consist of two or more states possessing an interwined governmen- tal structure. The states share a leader, and many of their institutions are merged to deal as a single unit at the international level.7 For example, the Austria-Hungary empire, during the years 1867 to 1918, was ruled by a monarchical leader. However, the two states maintained separate legis- latures which were required to grant authority for the states to act jointly.8 A confederation exists when two or more states remain separate and independent, but aggregate under a common central body to which they acted upon; North Yemen and South Yemen in March, 1977 was negotiated upon, but never agreed to; Libya and Syria in November, 1980 also reached an accord, but detailed arrange- ments were never developed; and finally most recently, a merger between Libya and Chad was announced at the beginning of 1981. The list of attempted mergers illustrates that most recently Libya, under the erratic direction of Col. Muammar al-Qaddafi, has become the new catalyst for 'alleged' Middle East unity. Qaddafi, a self styled protege of Nasser, sees himself at the helm of the empire he is trying to forge. His latest activity was a military invasion of neighboring Chad which he claims wants to merge with Libya. The consequences of his actions will be for future international law to categorize. But it seems, to this writer, that the Chad connection may be more accurately termed an annexation, or anchlfiss, in- stead of a consensual merger. 3 D. GREIG, INTERNATIONAL LAW 155-157 (2d ed. 1976). 4 J. CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 290-295 (1979). 6 Id. at 290. 6 The Commonwealth is a voluntary grouping of states formerly under British rule. Some commentators declare that the Commonwealth is a personal union under the British monarchy, while others believe that it is a loose association of states. Either way, each state is wholly independent of the crown and possesses its own foreign and domestic policies. Whatever the interrelationship of the Commonwealth countries, all will agree that the states are tied to the crown which is the focal point of their historical heritage. See R. WILSON, INTERNATIONAL LAW AND CONTEMPORARY COMMONWEALTH ISSUES 3-6 (1971). J. CRAWFORD, supra note 4, at 290. 8 Identical military and economic programs had to receive approval from both the Aus- trian and Hungarian legislative bodies before the Union could act. See [1956] YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 404 (United Nations). 1981 CONSENSUAL MERGER delegate certain limited powers.' As a whole the local units retain interna- tional acceptance as individual entities. The European Economic Com- munity, which unites Western Europe and beyond, is an example of a successful economic confederation. On the other hand, the necessary ele- ments of a federation are: "(1) division of powers between the central and regional governments, (2) a certain degree of independence between the central and regional governments, (3) direct action on the people by the central and regional governments, and (4) some means of preserving the Constitutional division of power."1 0 The central or federal government usually retains complete authority over foreign policy. In other words, an individual component of a federation cannot represent or bind the entire federation under a treaty. One scholar, Dr. James A. Crawford, explicitly requires a fifth criterion, that the central government's powers include jurisdiction over all foreign affairs, as well as autonomous authority inte- grating aspects of the local states internal policies."' By stipulating this element, more structure is added to the federated unit. The United States is a working example of this theory in practice. In addition, there is consensual merger, consisting of two or more states having separate international personalities united under a common Constitution, with a common head of state competent to represent them in their relations with other states.12 This type of unification is one in which both states negotiate on at least semi-equal terms to form a succes- sor state. Subsequent to negotiations a plebiscite may be conducted in the predecessor states to assure that the merging is voluntarily accepted by the people, not just the governments. Approval is indicated by an af- firmative vote by a majority of the citizenry.' s As shall be pointed out later in this note, numerous factors are used to classify a state as being in one of the above forms. Among the charac- teristics which make one type of state more appropriate than another are land mass, culture, history, and population. The various combinations of BERNIER, INTERNATIONAL LEGAL ASPECTS OF FEDERALISM 5 (1973). o These criteria are flexible enough to encompass any number of diverse government structures. The United States distinguishes between federations and confederations as fol- lows: A federation is able to act with direct effect on the citizenry, while the governing unit in a confederation is only able to act upon the state as an entity. Today, unlike the U.S., most of the international community uses a less rigid test looking instead to the degree of control to differentiate between the two terms. See J. CRAWFORD, supra note 4, at 291-292. " J. CRAWFORD, supra note 4 at 292. " As will be discussed later in this note, there are different theories which aid in the determination of how the successor state stands in relation to other states under customary international law. There is a possibility of conflict if the successor state terminates all pred- ecessor obligations, while the third party state interprets the situation as merely a con- tinuity of the state and thus maintenance of all responsibilities.
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