The Problem of State Succession and the Identity of States under International Law

Abstract

Although in recent years the issue of state succession has once again assumed a prominence in international legal practice, there remains considerable doubt and confusion as to the content and application of relevant rules and principles. The problem, it is argued, is not so much the lack of state practice, but a failure to appreciate fully the conceptual problems that underlie the construction of doctrine. In an attempt to clarify matters, this article reflects upon two categories of problems that raise continuing difficulties: problems of substance and methodology, and problems of analytical structure. In each case it is argued that the heart of the problem lies in the approach taken as regards the creation, assumption or imposition of legal obligation in international law, and in the ‘construction’ of the legal subject. It is the latter point which is taken up in the final section, where an attempt is made to illustrate why international law needs to incorporate within its terms a substantive, rather than merely a formal, conception of the state, and to show how otherwise it is incapable of explaining legal continuity in times of radical change. 1