Louisiana Law Review

Volume 63 | Number 4
Louisiana Bicentenary: A Fusion of Legal Cultures,
1803-2003
Summer 2003

State Succession, Then and Now, With Special

Reference to the Louisiana Purchase (1803)
C. Emanuelli

Repository Citation
C. Emanuelli, State Succession, Then and Now, With Special Reference to the Louisiana Purchase (1803), 63 La. L. Rev. (2003)
Available at: https://digitalcommons.law.lsu.edu/lalrev/vol63/iss4/19

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State Succession, Then and Now, With Special
Reference to the Louisiana Purchase (1803)

C. Emanuelli*

INTRODUCTION

One of the basic distinctions between international law and

domestic law involves the fact that States are the primary subjects
of international law.' According to international law,2 the existence
of a State depends on the presence of four elements:
1. A defined territory;
2. A permanent population;
3. A government;
4. The capacity to enter into relations with other States.
These elements are subject to change during the life of a State:
1. The territory of a State may increase or decrease in size
over time;
2. The population of a State may increase or decrease in
number;
3. The government may lose control over part of the
territory of the State;
4. The capacity to enter into relations with other States may
be reduced.
Changes which affect the territory of a State give rise to so-
called succession of States. The transfer of the territory known in
1803 as Louisiana, by France to the United States of America,
illustrates both the concept of State succession, as well as some of
the issues arising from it. With time, the rules governing State
succession in international law have evolved. However, the
solutions which were developed two hundred years ago to deal with
most of the issues arising from the Louisiana purchase seem to be
in line with current rules governing the transfer of a territory from
one State to another.

Copyright 2004, by LOUISIANA LAW REVIEW.

* Full Professor, Faculty of Law, University of Ottawa.
1. See Advisory Opinion, Reparationfor Injuries Suffered in the Service of
the United Nations, 1949 I.C.J. 174, 180.
2. Convention on the rights and duties of states, 28 Arn. J. Int'l. L. Supp. 75
(1934).
1278 8LOUISIANA LA W REVIEW [Vol. 63
I. THE CONCEPT OF STATE SUCCESSION

International law defines a succession of States as "the

replacement of one State by another in the responsibility for the
international relations of territory."3 More simply, State succession
involves the transfer of a territory from one State (the predecessor
State) to another State (the successor State).
As such, State succession may take different forms:
1. A State may break up and disappear giving way to the
emergence of two or more new States (former USSR:
1991; Yugoslavia: 1991-1992; Czechoslovakia: 1993);
2. A portion of the territory of a State may secede or separate
and become the seat of a new State (Pakistan from India:
1947; Bangladesh from Pakistan: 1971; Eritrea from
Ethiopia: 1993);
3. A colony may become independent and give rise to a
newly independent State (starting with Haiti in 1804);
4. Two or more States may merge to create a single new
State (the merger of Syria and Egypt to form the United
Arab Republic between 1958 and 1961);
5. A State may be taken over and assimilated by another
State (absorption of the German Democratic Republic by
the Federal Republic of Germany: 1990);
6. A portion of the territory of a State may be transferred
from one State to another State by way of cession: such
was the case in the purchase of Louisiana by the United
States from France in 1803. As a form of State
succession, the cession of a territory from one State to
another was quite current at the time. It often
accompanied the conclusion of a peace treaty between the
predecessor State and the successor State.
In some cases, the predecessor State remains in existence, so that
the succession is said to be partial: such was the case when France
ceded Louisiana to the United States. In other cases, the predecessor
State does not survive the succession, so that the succession is said to
be total, as with the dissolution of the former USSR.
In any event, a change of regime, even as drastic as the shift from
Tsarist Russia to the Soviet Union or from Saddam Hussein's Iraq to
a democratic or a religious State, does not equate to a succession of

3. See article two, common to the Vienna Convention on the Succession of

States in Respect of Treaties (1978), 1946 U.N.T.S. 3, and to the Vienna
Convention on the Succession of States in Respect ofState Property,Archives and
Debts (1983), UN Doc. A - CONF. 117-14.
2003] C. EMANUELLI 1279

States. Indeed, international law traditionally distinguishes between

changes of regime, on one hand, and succession of States, on the
other. Changes of regimes do not affect the continuity of States in
which they occur.4 As a result, a change of regime will not, as a rule,
affect the rights and obligations of the State in which the change
takes place. So, Iraq will keep its seat at the UN and will remain
bound by commitments made by the former regime.
On the other hand, regardless of the form it takes, State
succession will in some way affect the rights and obligations of the
States concerned (predecessor and successor States). It may also
affect the rights and obligations of third parties. The extent to which
the rights and obligations of States will be affected by State
succession may vary with each situation since it depends on a number
of factors: what is the nature of the rights and obligations at stake?
(Treaty rights and obligations? Rights and obligations relating to
public property and debts?); what form does the State succession
take? (partial or total succession?); in what context does the
succession of States occur? (colonial or non colonial case?); which
legal approach should govern the issues arising from State
succession?
II. THEORETICAL APPROACHES TO STATE SUCCESSION

From a theoretical standpoint, two doctrines must be

distinguished:5
The doctrine of "universal succession" (also known as doctrine of
continuity) provides that the rights and obligations of the predecessor
State, relating to the territory transferred, are transmitted to the
successor State. Thus, the successor State inherits the treaty rights and
obligations of the predecessor State relating to the territory
transferred. As well, the successor State inherits public property and
debts belonging to the predecessor State relating to the territory
transferred. Indeed, the "universal succession" doctrine provides that
the successor State ensures the continuation ofthe predecessor State's
sovereignty over the territory transferred.
The "clean slate" doctrine, by contrast, provides that the successor
State substitutes its sovereignty over the territory transferred to that

4. For instance, see The Sapphire, 78 U.S. 164 (1871); Trans-Orient Marine
Corp. v. Star Trading & Marine, 731 F. Supp. 619 (N.Y.S. 1990), aff'd, 925 F.2d
566 (2d Cir. 1991); Oscar Schachter, State Succession: The OnceandFutureLaw,
33 Va. J. Int'l L. 253, 254-55 (1993); Detlev F. Vagts, State Succession: The
Codifiers' View, 33 Va. J. Int'l L. 275, 281-82 (1993).
5. See D.P. O'Connell, The Law of State Succession 6-9 (H.C. Gutteridge et
al. eds., Cambridge University Press 1956).
1280 0LOUISIANA LA W REVIEW [Vol. 63

of the predecessor State instead of ensuring its continuation.6

Therefore, the successor State does not inherit the rights and
obligations of the predecessor State with respect to the territory
transferred.
In 1803, when Louisiana was ceded by France to the United
States, the "universal succession" doctrine was believed to govern
State succession. At the time, international law was still in gestation.
Customs, based on the practice of States, were the main source of
international law. However, the practice of States was difficult to
identify because it was not recorded. Moreover, State practice was
often incoherent. Only scholars, who sometimes had exercised
diplomatic functions, were able to determine the existence of certain
customs and to interpret them. Their interpretation was often inspired
by Roman law concepts which were rediscovered during the
Renaissance. Thus, the first doctrine to govern issues arising from
State succession was the doctrine of universal succession. It was
developed as early as the 17th century by some of the fathers of
international law (Gentili, Grotius, Pufendorf) on the basis of the
Roman law concept of inheritance in civil law.
The "clean slate" doctrine, on the other hand, was developed in
the late 19th century under the influence ofvoluntarist theories which
dominated international law during that period.7 According to such
theories, sovereign States can only enjoy rights and incur obligations
to which they consent. Therefore, the rights and obligations of the
predecessor State relating to the territory transferred cannot be
considered to automatically pass to the successor State.
Both the "universal succession" and the "clean slate" doctrines
have been criticized by scholars.! It has been argued, for instance,
that neither doctrine "makes much sense with respect to cases of
cession of territory" (for instance the transfer of Louisiana from
France to the United States). Indeed, "[i]n such cases the 'successor'
will neither begin life with a clean slate, nor will it succeed to the
full range of rights and duties of the 'predecessor."'' l
As such, this statement is somewhat opaque. However, we
believe, it can be explained on the basis of a distinction between
"real" and "personal" rights relating to the territory transferred."
This distinction is supported by State practice.

6. Id. at 8-9.
7. See Mathew C.R. Craven, The ProblemofState Succession andthe Identity
of States under InternationalLaw, 9 European J. Int'l L. 142, 147-48 (1998).
8. See O'Connell, supranote 5, at 10; Craven, supranote 7, at 148.
9. Craven, supra note 7, at 148.
10. Id.
11. See discussion infra, at 1283-84.
2003] C EMANUELLI 1281

I . STATE PRACTICE RELATING TO THE SUCCESSION OF STATES

Examples ofboth the "universal succession" and the "clean slate"

doctrines can be found in the practice of States. Thus, while the
"universal succession" doctrine governed the emergence of
Dominions, such as Canada,12 as independent States, the "clean slate"
doctrine was invoked by Israel.' 3 However, State practice rarely
reflects either the "universal succession" doctrine or the "clean slate"
doctrine in their entirety. In most cases of State succession, some
rights and obligations relating to the territory transferred are
transmitted from the predecessor State to the successor State, while
others are not. Thus, following the absorption of the German
Democratic Republic (GDR), the Federal Republic of Germany took
over the property and debts of the GDR but refused to be bound by its
treaties.
State practice also reveals that cases of State succession which
may, at first glance, seem quite similar are sometimes dealt with
according to different models. Thus, the break up of the Soviet
Union was generally analyzed using the separation model: parts of
the USSR separated from its core - Russia - which continued its
existence with the support of the Commonwealth of Independent
States (CIS). 4 On the other hand, the break up of Yugoslavia was
analyzed using the dissolution model: the former Yugoslavia had
ceased to exist and Serbia-Montenegro did not continue its
existence."
Moreover, in many cases, practical issues arising from State
succession are dealt with by devolution agreements concluded
between the predecessor State and the successor State. Such was the
case with respect to the Louisiana purchase.
The transfer of Louisiana was governed by a treaty and two
conventions 6 concluded between France and the United States on
April 30, 1803. They include a number of detailed provisions dealing
with some of the traditional issues arising from State succession and

12. See O'Connell, supra note 5, at 156; John H. Currie, Public International
Law 40 (Irwin Law 2001); C. Emanuelli, Droit internationalpublic 200 (3d ed.)
(Montreal, Wilson & Lafleur eds., 1998).
13. See O'Connell, supra note 5, at 10-11.
14. See Rein Mullerson, New Developments in the Former USSR and
Yugoslavia, 33 Va. J. Int'l L. 299, 302-08 (1993).
15. See Edwin D. Williamson & J.E. Osborn, A US. Perspective on Treaty
Succession and Related Issues in the Wake of the Break up of the USSR and
Yugoslavia, 33 Va. J. Int'l L. 261, 270-72 (1993).
16. See Reference Library of Diplomatic Documents, NapoleanSeries.org, at
http://www.napoleonseries.org/reference/diplomatic/louisiana.cfm (last visited Feb.
8, 2004).
 1282 2LOUISIANA LA W REVIEW [Vol. 63
treating them in a rather traditional way. 7 However, it must be
emphasized that the solutions which are embodied in devolution
agreements often vary from case to case.
In sum, State practice relating to State succession lacks uniformity
and fails to substantiate either the "universal succession" or the "clean
slate" approach.
In order to shed some light on a somewhat confusing area of
international law, efforts have recently been made under the aegis of
the United Nations to codify the rules governing State succession.

IV. CODIFICATION OF THE RULES GOVERNING STATE SUCCESSION

In spite of, or maybe'because of, the uncertain practice of States

with respect to State succession, the International Law Commission
(I.L.C.) has endeavored to codify the rules governing three areas:
1. succession of States with respect to treaties;
2. succession of States with respect to public property,
archives, and debts;
3. succession of States and nationality of natural persons.
A Succession of States with respect to treaties

State practice relating to this question is inconsistent. 9 In some

cases, treaty obligations are transmitted from the predecessor State to
the successor State(s). Such was the case in the following:
1. break up of the Greater Columbian Union into Columbia,
Ecuador, and Venezuela (1829);
2. break up of the union between Norway and Sweden
(1905);
3. break up of the Austro-Hungarian Empire after World
War I and emergence of Austria and Hungary;
4. independence ofthe British dominions, including Canada,
referred to in the Statute of Westminster, 1931;
5. dissolution of the United Arab Republic and separation of
Syria from Egypt (1961);
6. break up of the USSR (1991) and continuation by Russia;
7. break up of Yugoslavia (1991-1992);
8. break up of Czechoslovakia (1993), etc.

17. See discussion infra, at 1283-87, 1290-9 1.

18. The I.C.L. was established by the General Assembly of the United Nations
in 1947 to encourage "the progressive development of international law and its
codification." Charterof the United Nations, Chap. IV, art. 13(1) (1945).
19. For examples of State practice, see O'Connell, supra note 5, at 15-74.
2003] C EMANUELLI 1283

In the case of the Louisiana purchase, the Treaty of 180320

provided that the United States would "execute such treaties and
articles as may have been agreed between Spain and the tribes and
nations of Indians until, by mutual consent of the United States and
the said tribes or nations, other suitable articles shall have been
agreed upon" (art. 6).
In other cases, treaty obligations are not transmitted from the
predecessor State to the successor State. This was seen in the
following:
1. separation of Belgium from the Netherlands (1831).
However, local treaties concerning Belgium remained
binding;
2. secession of Panama from Columbia (1903);
3. secession of Finland from the USSR (1917-1920);
4. separation of Poland and Czechoslovakia from the
Austro-Hungarian Empire after World War I;
5. independence of Ireland (1921-1949);
6. secession of Pakistan from India (1947). However,
Pakistan remained bound by some British and British-
Indian treaties in view of a devolution agreement between
the two States;
7. birth of Israel (1947-1948);
8. emergence of some newly independent States through
decolonization, including Algeria and Upper Volta;
9. secession of Bangladesh from Pakistan (1971);
10. absorption of the German Democratic Republic by the
Federal Republic of Germany (1990);
11. independence of the Baltic States (1991), etc.
The practice of States relating to succession to treaties is also
informed by the distinction between "real" (or "dispositive") and
"personal" treaties. "Personal" treaties are described as contracts
which can only remain in force through the continued existence of the
contracting parties (treaties of extradition, treaties of commerce,
treaties on the reciprocal enforcement of foreign judgments, alliance
treaties, etc.)." They are more likely to be affected by State
succession than "real" treaties. "Real" treaties create real rights and
obligations with respect to a territory (boundary treaties, treaties
governing fishing rights in national waters, or navigation rights in
national waterways, etc.).22 They are said to attach to a territory, so
that if the territory is transferred from one State to another, they are

20. Supra note 16.

21. See O'Connell, supra note 5, at 15.
22. Id. at 49.
1284 4LOUISIANA LA W REVIEW [Vol. 63
transmitted to the successor State. State practice relating to State
succession shows that the distinction between "personal" and "real"
treaties is relevant. Indeed, even newly independent States which
favored the clean slate approach tended to accept territorial treaties,
and in particular boundary treaties, concluded on their behalf by
former colonial powers. On the other hand, political treaties (treaties
of friendship or alliance) are often affected by succession of States
even when continuity is the rule. In the case of the Louisiana
purchase, real rights and obligations created by treaties were
transmitted to the United States along with the territory ceded by
France. To start with, the Treaty of 1803 emphasized that the
territory transferred to the United States was the territory over which
France had an incontestible title in view of article 3 of the treaty of St.
Ildefonso concluded with Spain in 1800.23 Moreover, it should be
recalled that under the Treaty of Paris (1763), between France and
Great Britain, British subjects enjoyed freedom of navigation on the
Mississippi. Following the transfer of Louisiana to the24United States,
the rights of British subjects were not meddled with.
Furthermore, in many cases, issues relating to succession to
treaties are governed by devolution agreements concluded between
the predecessor State and the successor State (India and Pakistan:
1947); Ghana; Hong Kong) or between successor States (Community
of Independent States). As noted above, in the case of the Louisiana
purchase, the Treaty of 1803 included provisions governing the
succession to treaties concluded by Spain with Indian tribes and
nations.
In order to clarify some of the rules relating to succession to
treaties, the International Law Commission drafted the Vienna
Convention of the Succession of States in respect of Treaties.25 The
Convention was concluded in 1978. It entered into force in 1996.
The general solution which is embodied in this convention is
based on a distinction between State succession arising out of
colonial cases and State succession arising out of non colonial cases.
According to this distinction, "newly independent States," i.e. States
born out of the decolonization process, do not automatically inherit
treaty rights and obligations previously concluded on their behalf by
colonial powers (art. 16). However, they may unilaterally choose to
succeed to multilateral treaties to which the predecessor State is a
party (art. 17).

23. (Art. 1). Therefore, it would seem that the cession of Louisiana to the
United States was governed by the principle uti possidetisjuris. See discussion
infra at 1286.
24. See O'Connell, supra note 5, at 54.
25. See Mathew G. Maloney, Succession of States in Respect of Treaties: The
Vienna Convention of 1978, 19 Va. J. Int'l L. 885, 911 (1979).
20031 C EMANUELLI 1285

In all non-colonial cases, including those involving a cession of

territory, the rule is different. As a rule, the successor State
succeeds to treaty rights and obligations concluded by the
predecessor State (art. 34).
This distinction between colonial and non colonial cases is
informed by the evolution of State practice after World War II. Yet,
it is criticized by most states which prefer a general application of
the "clean slate" doctrine with respect to succession to treaties
regardless of the form of State succession. Indeed, the "clean slate"
doctrine seems to be more consistent with the contractual nature of
treaties6 and the rule according to which treaties do not create
rights and obligations for third States." Moreover, the
aforementioned distinction is becoming obsolete as the
decolonization process comes to an end. What remains is the rule
of continuity which is not favored by States. As a result, the
Convention came into force only recently. So far, it has been
ratified by less than 20 States.
In any event, the application of the "clean slate" doctrine to
treaties is limited by two exceptions which are included in the
Vienna Convention of 1978: the first exception deals with treaties
creating rights and obligations relating to the use of a territory. Such
treaties are automatically transmitted from the predecessor State to
the successor State (art. 12). This exception was applied by the
International Court of Justice (ICJ) in the Gabcikovo-Nagymaros
case.2 8 This case dealt with a treaty concluded between Hungary
and Czechoslovakia in 1977. Under the treaty, both States were
responsible for the joint construction and operation of a system of
locks on the Danube River. However, in 1989, Hungary, invoking
environmental concerns, abandoned performance of its part of the
project. Then, in 1992, Hungary notified Czechoslovakia of its
termination of the 1977 treaty. For its part, Czechoslovakia broke
up in 1992 giving rise to the Czech Republic on one hand and
Slovakia on the other. As a result, part of the project now fell
within the territory of Slovakia which decided to proceed with a
modified version of the initial project. A dispute between Hungary
and Slovakia ensued which was brought before the International
Court of Justice by both parties. One of the issues raised before the
Court was whether Czechoslovakia's rights under the 1977 treaty
had been transmitted to Slovakia or whether they had been

26. See Currie, supra note 12, at 40.

27. See Article 34 of the Vienna Convention on the Law of Treaties, 1155
U.N.T.S. 331 (1969).
28. Gabtikovo-Nagymaros Project (Hungary v. Slovakia), 1997 I.C.J. 7.
1286 6LOUISIANA LA W RE VIEW [Vol. 63

extinguished. The ICJ decided that the 1977 treaty was territorial
in nature so that it "created rights and obligations 'attaching to' the
parts of the Danube to which it relates." As such, the treaty was
transmittable to Slovakia which was bound by it from the day it
came into existence.29
In considering whether the agreement between Hungary and
Czechoslovakia was a territorial treaty, the Court stressed that it
"also established the navigational regime for an important sector of
an international waterway.... ." In this respect, the ICJ noted that
according to the International Law Commission, "treaties
concerning water rights or navigation on rivers... [are] candidates
for inclusion in the category of territorial treaties." 3 As such, those
treaties "travel" with the territory transferred. In the case of the
Louisiana purchase, this solution finds support in the fact that after
the transfer of Louisiana to the United States, the navigation rights
of British subjects on the Mississippi were maintained.3
The second exception to the "clean slate" rule relates to
boundary treaties. Under article 11 of the Convention, such treaties
are binding on the successor State(s). This exception confirms
international law's concern to protect the stability of State
boundaries through the principle uti possidetis juris3 2 and the
exception to the doctrine of rebus sic stantibus.33 The exception
found in article 11 of the Vienna Convention of 1978 is in line with
case law.34

B. Succession of States with respect to State property, debts and

public archives
The Vienna Convention on the Succession of States in Respect
of State Property,Archives and Debts35 was adopted in 1983. Its
rules are also based on a distinction between State succession
arising out of colonial cases and State succession arising out of non
colonial cases. This distinction, however, does not reflect the
practice of States.

29. Id. at 72.

30. Id.
31. See discussion infra at 1284.
32. See Frontier Dispute (Burkina Faso v. R~publique du Mali), 1986 I.C.J.
554, at 565.
33. See Vienna Convention on the Law of Treaties, supra note 27, art. 62;
Gabdikovo-Nagymaros Project, supra note 28, at 63-64.
34. See Free Zones Case (Upper Savoy and the District of Gex), 1932 P.C.I.J.
(ser. A/B) No. 32 (June 7); Temple of Preah Vihear Case (Cambodia v. Thailand),
1962 I.C.J. Rep. 6; Territorial Dispute (Libyan Arab Jamahirya v. Chad), 1994
I.C.J. 6.
35. See supra note 3.
2003] C. EMANUELLI 1287

In practice, States usually deal with issues relating to State

succession to public property, debts, and archives by way of
agreements. The solutions found in these agreements vary from case
to case. As a result, the rules governing State succession to public
property, debts, and archives are somewhat uncertain. However,
some general rules can be derived from the practice of States as well
as from international cases.
First of all, in the case of total succession (when the predecessor
State(s) disappear(s)), the general rule seems to favor continuity.
Therefore, the successor State(s) would inherit all the property
owned36 and debts owed by the predecessor State(s). Thus, the
treaty of St. Germain (1919) divided the public debt of the former
Austro-Hungarian Empire between the successor States." More
recently, the Federal Republic of Germany took over the debts and
assets of the former German Democratic Republic.3 ' Also, several
former Soviet republics agreed in 1991 on their respective shares in
debts and assets of the USSR. Another agreement was concluded
in 1992 between the heads of State of the Community of
Independent States on the division of the property of the former
Soviet Union abroad. Later, the solutions adopted in these
multilateral agreements were renegotiated on a bilateral basis
between Russia and some former Soviet republics.39
In the case of partial succession (where the predecessor State
continues to exist), it seems that property and debts go with the
territory. Therefore, public property which is located on the territory
transferred or which is linked to that territory would pass to the
successor State./ ° Likewise, debts incurred directly by the local
government of the territory transferred or incurred by the
predecessor State for the improvement of that territory would pass
to the successor State.41 Although it seems fair, this rule is not

36. See Haile Selassie v. Cable & Wireless Ltd. (No.2), Ch. 182 (1939); rev'd
C.A. 194 (1939).
37. See O'Connell, supra note 5, at 164.
38. See Charles Rousseau, Chronique des faits internationaux, 96 Revue
Gin6rale de Droit International Public [Rev. Gen. Droit Int'l Pub.] 109, 112 (1992).
39. See Mullerson, supra note 14, at 306-07.
40. See Peter Pazmany University (The Peter Pazmany University v. Czech.)
1933 P.C.I.J. (ser. A/B) No.61, at 237 (Dec. 15); Vienna Convention on the
Succession ofStates in Respect of State Property,Archives andDebts, supra note
3, arts. 14(2), 15 (1)(a)(d), 17 (1)(a)(d), 18(l)(a)(c).
41. See S.A. Williams, InternationalLegal Effects of Secession by Quebec,
York University Constitutional Reform Project Study No. 8, North York, York
University Centre for Public Law and Public Policy, 1992, 30-35; Vienna
Convention on the Succession of States in respectofState Property,Archives and
Debts, supra note 3, arts. 37(2), 40(1), 41.
1288 8LOUISIANA LA W REVIEW [Vol. 63

clearly supported by State practice. In the case of the Louisiana

purchase, however, the Treaty of 1803 provided the passing to the
United States of "all public lots and squares, vacant lands and all
public buildings, fortifications, barracks and other edifices which
are not private property" (art. 2). On the other hand, the United
States agreed to take over the debts due by France to American
citizens stemming from the so-called Quasi War.
Beyond the general rules laid down above, the solutions are
uncertain.
Because of that uncertainty, the International law commission
endeavored to develop new rules which are included in the Vienna
Convention of 1983.4 For instance, in colonial situations, a "newly
independent State" is entitled, in whole or in part, depending on the
case, to property owned by the predecessor State, wherever located,
that originated in the territory transferred (art. 15 (1) (b), (c), (e), (f)).
Moreover, the Convention provides that no public debt is transmitted
to a "newly independent State" without its consent (art. 38 (1)).
In non-colonial situations, the Convention provides that the
successor State is entitled to an equitable part of the public property
of the predecessor State which is not otherwise transmitted (arts. 17
(1) (c); 18 (1) (b), (c)). The predecessor State may, in return, be
entitled to some compensation (arts. 17 (3); 18 (2)). As for debts, the
Vienna Convention provides that, short of an agreement to the
contrary, an equitable portion of the public debt of the predecessor
State passes to the successor State. To establish that portion,
considerations relating to the amount of property, rights, and other
interests which the successor State has acquired by succession maybe
taken into consideration (arts. 37 (2); 40 (1); 41).
With respect to public archives, the basic idea which is reflected
by the Vienna Convention of 1983 is that the successor State is
entitled to documents which are necessary to administer the territory
transferred or which are directly related to that territory (arts. 27 (2)
(a), (b); 28 (1) (b), (c); 30 (1) (a), (b); 31 (1) (a), (b))." In the case of
the Louisiana purchase, the Treaty of 1803 provided that "the
archives, papers and documents relative to the domain and
sovereignty of Louisiana" will be transmitted to the United States
authorities (art. 2).
So far, the Vienna Convention of 1983 has been ratified by only
5 States, meaning that it has not yet come into force. The primary
impediment to broader ratification is that most western States

42. Convention between the UnitedStates ofAmerica andthe FrenchRepublic,

Apr. 30, 1803, U.S.-Fr., 7 Bevans 818, art. 1.
43. Supra note 3.
44. See Claude Ernanuelli, Archives et souveraineti, 23 Revue Gdndrale de
Droit [Rev. Gen. Droit] 603 (1992).
2003] C. EMANUELLI 1289

disagree with its distinction between colonial and non-colonial

situations. 5 However, as mentioned before, the significance of this
distinction is lost to the fact that the decolonization phenomenon is
coming to an end.

C. Succession
46 of States and its impact on the nationalityof natural
persons
In 2001, the UN General Assembly adopted Resolution 55/153"7
dealing with "[n]ationality in relation to the succession of States."
Annexed to the resolution is a set of 26 articles on "[n]ationality of
natural persons in relation to succession of States," which were adopted
on second reading by the International Law Commission in 1999.8
Contrary to the recommendation of the Commission, the draft
articles were not adopted by the General Assembly in the form of a
declaration. Instead, Resolution 55/153 describes the draft articles as "a
useful guide for practice in dealing with" nationality ofnatural persons
in relation to succession of States. It also acknowledges that "the work
of the International Law Commission on this topic could contribute to
the elaboration of a convention or other appropriate instrument in the
future." In that respect, Resolution 55/153 invites governments to
comment on the question of a convention on nationality of natural
persons in relation to the succession of States. It also decides to include
this topic in the provisional agenda of its fifty-ninth session.
The characterization of the draft provisions annexed to Resolution
55/153 as guidelines only may be explained by the fact that these
provisions do not reflect the recent practice of States. Indeed, such
practice is not uniform and does not allow for the creation of customary
rules. However, it does reflect one traditional principle: each State has
the sovereign right to decide who qualifies as one of its nationals (arts.

45. See P.K. Menon, The Succession ofStates andthe Problem ofState Debts,
23 B.C. Third World L.J. 111 (1986).
46. See Claude Emanuelli, L'accession du Qudbec 6 la souverainetg et la
nationalitg, Les attributs d'un Quibec souverain, Assemblte nationale,
Commission d'6tude des questions aff~rentes i l'accession du Qu6bec i la
souverainet6, vol. 1, Quebec, 1992, 61, (1992) 23 Rev. Gen. Droit519; updated in
2001: Mises a jour des 9tudes originalementpr~parges pour la Commission
parlementaire d'9tude des questions affdrentes a l'accession du Quebec & la
souverainetj(1991-1992), vol. 3, Livre 1, Quebec, 2002, 61.
47. Fifty-fifth session, Agenda item 160, at
http://www.un.org/law/ilc/reports/1999/english/chap.4.htm.#E1l (last visited Mar.
4, 2004).
48. United Nations, Report of the InternationalLaw Commissionon the work
of its fifty-first session (1999), available at
www.un.org/law/ilc/reports/1999/english/chap4.htm (last visited Feb. 8, 2004).
1290 0LOUISIANA LA W REVIEW [Vol. 63
6, 8 (1), 9, 10). This sovereign right is mitigated by the rule developed
by the International Court of Justice in the Nottebohm Case: it
explains that the nationality of a State can only be successfully invoked
as against another State provided it reflects a genuine link between an
individual and its national State. However, the connecting factors
which may be taken into account to establish whether such a link exists
may vary from case to case. With respect to succession of States, the
draft provisions annexed to Resolution 55/153 favors the habitual
residence of an individual as the relevant connecting factor to
determine whether he/she loses the nationality of the predecessor State
and acquires that of the successor State (arts. 5, 8, 14, 20, 22, 24, 25).
Yet, the practice of States born from the break up of the former USSR,
Yugoslavia, and Czechoslovakia point to other directions: namely, the
citizenship of the component units of the predecessor State, or the
origin." Also, several provisions found in the draft articles annexed to
Resolution 55/153 seek to prevent statelessness as a possible
consequence of succession of States (arts. 4, 9, 11 (2), 24, 25). On the
other hand, the recent practice of States (Baltic States in particular) has
resulted in numerous cases of statelessness." Moreover, it must be
noted that only a handful of States are parties to the Convention on the
Reduction of Statelessness (1961).52
The draft articles further provide a right of option for individuals
who are affected by a succession of States (arts. 11, 26). Again,
however, these provisions do not coincide with the practice of States. 3
Indeed, in practice, the right of option is the exception rather than the
rule.' When it is granted to the inhabitants of a territory transferred, it
is usually as a result of an agreement between the predecessor State and
the successor State. Indeed, issues relating to the nationality of natural
persons affected by the transfer of a territory from one State to another
are sometimes dealt with in a devolution agreement. Thus, the Treaty
of 1803 for the cession of Louisiana provided that the inhabitants of the
territory ceded would be admitted "as soon as possible" to United
States citizenship (art. 3).
Finally, in view of the previous developments, the draft articles
annexed to Resolution 55/153 seem to be an expression of the
progressive development of international law rather than a codification
of existing rules.

49. Nottebohm (Liechtenstein v. Guatemala), 1955 I.C.J. 4.

50. See Emanuelli, supra note 46, at 75 et seq.
51. Id. at 81-82.
52. 989 U.N.T.S. 175.
53. See Emanuelli, supra note 46, at 81-82.
54. According to the International Criminal Tribunal for the former Yugoslavia,
the right of option is not a settled rule of international law: Prosecutor v. Zejnil
Delalic et al. (Celebici Camp), IT-96-2 1, Judgement of 20 February 2001, I.C.T.Y.
(A. Ch.), para. 93, availableat www.un.org/icty/ (last visited Feb. 8, 2004).
2003] C. EMANUELLI 1291

CONCLUSION

State succession takes different forms. The transfer of Louisiana,

by France, to the United States took the form of a cession of territory.
Regardless of form, however, State succession raises similar issues.
For the most part, successions involve the transmission of rights and
obligations from the predecessor State to the successor State.
The rules governing such transmissions, and State successions
generally, have evolved since the Louisiana purchase. Their
evolution is linked to the replacement of the doctrine of continuity by
the "clean" slate doctrine under the influence of voluntarist theories.
This development is reflected in the practice of States which became
independent through the process of decolonization. However, State
practice relating to State succession is not uniform. It often embodies
both the doctrine of continuity and the "clean slate" doctrine in a
proportion which varies from case to case. Yet, some rules seem to
be well settled, such as the rules favoring the passage to the successor
State of "real" treaties, of immovables located on the territory
transferred, and of archives necessary to administer that territory.
These rules are usually found in devolution agreements which are
often concluded between the predecessor State and the successor
State. Such was the case with respect to the transfer of Louisiana
from France to the United States. Questions arising from this transfer
were governed by three agreements. The solutions found in these
agreements are informed by the doctrine of "universal succession"
which was applicable at the time. Those solutions are generally in
line with the rules developed by State practice and, to a certain extent
only, with those codified by the International Law Commission with
respect to the cession of a territory. As a rule, the solutions
developed by the Commission to govern issues arising from State
succession hardly reflect the practice of States. As a result, the
documents in which these solutions are embodied did not get much
support from States.