Codifying the law of state succession: A futile endeavour?

Abstract

The succession of states is one of the most complex, challenging and politicized problems in international law. Attempts by the International Law Commission to codify it in the dying days of decolonization produced two treaties, neither of which has attracted broad participation or proved to be particularly influential on subsequent practice. As in the first great wave of succession practice in decolonization (1950-1974), the second great wave of 'desovietization' at the end of the Cold War (1990-1996) featured reactive solutions purporting to apply principles whose authority, content and theoretical underpinnings were unsettled. The purpose of this article is to examine whether recent practice supports the hypothesis that codification of a 'law of state succession' - whose very existence has long been contentious - is a futile endeavour. The article examines the 21st-century succession practice in a historiographical approach. It uses the South Sudan and Scotland cases against a historical backdrop of codification with reference to their key issues of succession.