The relationship between international law and municipal or rather domestic law has been saddled by an array of conflicting ideas, notably with regards to the application of International law on an emerging state. This problem has manifested itself mostly in the African continent as a direct consequence of independence of African states. In simple and plain language one can submit that the main debate which troubles the minds of international lawyers, political leaders, as well as national courts is ‘what happens when a new state emerges? And whether should state be bound by international commitments of its predecessors? (UNEP official website). For the purpose of this essay first the meaning of state succession in the light of several ways in which a state can emerge will be given. Then the debate will shift to the main theme of this piece of work which is to discuss the validity of pre-existing international laws on a new emerged state. The discussion will entirely base on conflicting theories on the issue, one of which being the ‘optional doctrine’ or authoritatively known as ‘the Nyerere Doctrine of State Succession'.
State succession in layman’s terms can be equated to state emergence i. e a new state emerging out of a prior existing one. Tiyanjana argues that State succession is generally regarded as arising when there is a definitive replacement of one State by another in respect of sovereignty over a given territory. By virtue of a UNEP official website a state can emerge in several ways; A State can become independent from a colonial power, entering the community of nations as a peer (as was common in the three decades following World War II). States can be created with the dissolution of a former State (for example with the Soviet Union, Yugoslavia, and Czechoslovakia). States can also be created by combining previously independent states.
The problem of State succession and in particular the succession of newly independent States to pre-independence treaties has been of particular relevance to the African continent over a long period after independence (Tiyanjana Maluwa, International Law in Post-Colonial Africa). As cited in UNEP official website, the general principle with regards to succession is, when a new state emerges the principle of succession applies. This means that the new emerging State inherits the international obligations that its predecessor had made. This general principle testifies to the basic value of international society which emphasises the importance of continuation and stability of international order (Marco A. Alternative Approach to the International Law of State Succession). Such adherence to the doctrine of succession can be seen in the case of Nigeria, whereby Nigeria subjected itself to all the treaties and international commitments entered by its colonial masters (the British).
Nonetheless, while the doctrine of succession was adhered by such a nation as Nigeria, some other African countries opposed such a ‘political submissive approach’ thus opted to apply opposing doctrines such as clean-slate doctrine, and Nyerere doctrine of State succession. Commencing with the clean-slate doctrine, this is the one under which a new State starts without any of the obligations of the predecessor State. That is, the successor state acquires its territory with a clean-slate or tabulas rasa, therefore under no obligation to succeed pre-independence treaties. Such a doctrine was tipped to be used in Namibia by Makonnen’s when he urged that, following Namibia’s accession independence on 21, March 1990, as far as succession is concerned the most appropriate approach to be used should be the clean-slate doctrine. Tiyanjana Maluwa argues that Makonnen reached such a conclusion on the ground that all dealing by South Africa and other aliens concerning Namibia since October 1966 were illegal and therefore invalid, as a result of the Advisory Opinion of the International Court of Justice (declaring the continuing South Africa occupation of the territory illegal). This conclusion is somewhat correct and arguably has been vindicated by Article 145 of the Namibian Constitution.
A major criticism to the clean-slate doctrine has been offered by Udokang when he argued that ‘abrupt discontinuity of all treaty obligations contracted by Predecessor State might well lead to a legal vacuum and serious confusion where the Successor State can find themselves isolated from international community. (Okon, Udokang. Succession of New States to International Treaties 19 (1972)).
The second conflicting doctrine to that of traditional adherence to succession is termed the ‘Nyerere doctrine of State succession’. Julius Nyerere, the first President of Tanzania, considered that international agreements dating from colonial times should be renegotiated when a State becomes independent, as the nation should not be bound by something that the nation was not in a sovereign position to agree to at that time. According to this doctrine, a newly independent State can – upon independence – review the international treaties that it stands to inherit and decide which of the agreements it will accept and which it will repudiate. Although such an “optional” approach to events of State succession was not new and was already recognized by customary international law, Nyerere is recognized for the modern formulation of the optional doctrine of the law of State succession. It is worth mentioning that this doctrine came to existence after Nyerere (the Prime Minister of newly independent Tanganyika) made a unilateral declaration to the Acting general Secretary of the UN in 1961.
Further, with regards to multilateral treaties, the new government would review them and indicate to the depositary concerned what steps would be taken in relation to each such instrument, whether by way of confirmation of termination, confirmation of succession or accession. Nyerere doctrine is advantageous in several ways;
a) It allows states to fill the void created by the lapse of predecessor’s treaties while maintaining the right to examine each treaty individually before deciding whether to maintain such legal obligations.
b) With the above advantage, Nyerere doctrine is also important as it rectifies the aforementioned shortcomings with regards to negative succession or clean-slate doctrine.
c) Unlike the clean-slate doctrine under which a new State starts without any of the obligations of the predecessor State, Nyerere doctrine of succession however, does not rule out or prejudice the possibility or desirability of renewal (after a legal interruption during the succession) of commitments or agreements of mutual interest to the parties concerned.
I wouldn’t offer a conclusion as this was just an open debate on several approaches to State Succession, significantly the Nyerere doctrine of State succession. I hope the above piece of academic work offers good introduction, insight, as well understanding to the key issues revolving around the concept of succession.