Conceptions of State Identity and Contin PDF

E UROPEAN S OCIETY OF
I NTERNATIONAL L AW
Conference Paper Series
Conference Paper No. 11/2015

2015 ESIL Research Forum, Florence, 14-15 May 2015
Conceptions of State Identity and

Continuity in Contemporary
International Legal Scholarship
Anne Østrup
Editors:
Christina Binder (University of Vienna)

Photini Pazartzis (National and Kapodistrian University of Athens)
Mario Prost (Keele University)
ESIL CONFERENCE PAPER SERIES [VOL. 6 NO 3]
Conceptions of State Identity and Continuity in

Contemporary International Legal Scholarship
Anne Østrup
Abstract:
This paper offers an examination of the substantive conceptions of state identity/continuity

advanced in contemporary international legal scholarship. It first outlines in a historical
perspective the core theoretical debate concerning the nature of state succession and examines the
meaning of the concept of state identity/continuity in this context. Having dismissed a general
concept of legal personality as a point of differentiation between state identity/continuity and
state succession, the paper identifies four main substantive conceptions of state identity/continuity
in contemporary legal scholarship: a ‘formal’ conception, a ‘material’ conception, a ‘procedural’
conception, and finally a ‘relativist’ or ‘deconstructivist’ approach to the concept of
identity/continuity. The paper then explores the strengths and weaknesses of each of these
conceptions in terms of both their theoretical underpinnings; their conformity with state practice
and their implications for the legal concept of statehood. The paper argues that both the formal
and material conceptions of state identity/continuity suffer from serious theoretical shortcomings.
The procedural conception is generally more consistent, although it may not – as pointed out by
proponents of the deconstructivist approach – entirely encompass the many variations of state
practice. In particular, the procedural conception of identity/continuity stands out by maintaining
the aspiration of a normative approach to the question of state identity/continuity, and thus to the
problem of statehood in international law, even if there is a certain gap between theory and
practice.
Keywords: statehood; state identity; state continuity; state succession; international legal
personality; intellectual history of international law.
Author Information:
PhD candidate, Centre for International Law and Justice, University of Copenhagen.
E-mail: anne.ostrup@jur.ku.dk
[1]
Table of Contents
1. Introduction ......................................................................................................... 2
2. State Succession and the Problem of State Identity and Continuity....... 5
2.1 The Concept of State Succession ....................................................................... 5
2.2 Theories of State Succession ............................................................................. 6
2.3 The Concept of State Identity/Continuity......................................................... 7
3. State Succession versus State Identity and Continuity - A Point of
Differentiation? ....................................................................................................... 9
3.1 The Question of Personality .............................................................................. 9
3.2 The Elimination of Personality? ..................................................................... 12
4. Conceptions of State Identity and Continuity ............................................ 14
4.1 A ʻFormalʼ Conception of State Identity/Continuity ...................................... 14
4.2 A ʻMaterialʼ Conception of State Identity/Continuity .................................... 16
4.3 A ʻProceduralʼ Conception of State Identity/Continuity ................................ 18
4.4 A ʻRelativistʼ or ʻDeconstructivistʼ Conception of State Identity/Continuity 20
5. A Critical Appraisal of the Contemporary Conceptions of State Identity
and Continuity....................................................................................................... 23
6. Conclusion .......................................................................................................... 26
1. Introduction
One aspect of statehood that has continuously raised complex legal questions is that of the
temporal existence of the state and the effect of changes in the constituent elements of statehood
over time. 1 It is, as pointed out by James Crawford, one thing to say that an entity is a state, and
another to say that an entity is at two different points in time the same state.2 But when does the
legal identity of a state remain intact despite fundamental changes in the constituent elements of
statehood, and when are the changes so grave as to bring about the extinction of the state?3 In the
former case, the state preserves its preceding rights and obligations under international law
subject to the general law of treaties, while in the latter case the transfer of rights and obligations
to one or more new or already existing states is determined by the applicable rules
of state succession.
1
Marek, K. (1954). Identity and continuity of states in public international law. Geneva: Droz, at 5.
2
See e.g. Crawford, J. (2007). The creation of states in international law. 2nd ed. Oxford: Clarendon Press,
at 667-668.
3
Ibid at 670.
[2]
The distinction between state identity/continuity4 and state succession is often characterized as
fundamental to international law, and as one upon which the law of state succession is
predicated.5 However, despite the deep embedment of the problem of state succession in the
history and theory of international law – or perhaps exactly because of this long history – the
concept of state identity/continuity still seems to cause considerable confusion, both in legal
doctrine and in practice.
The nebulous character of the topic of state identity/continuity may be ascribed to several
different factors, beyond the fundamentally problematic nature of a philosophic concept of
identity.6 First, the terminology applied is often inconsistent; the concepts of state succession,
state identity/continuity and legal personality are applied in several different ways, which often
leads to misunderstandings. Secondly, the concept of state identity/continuity is closely related to
fundamental, yet disputed concepts such as statehood and international legal personality as well
as to basic theoretical questions such as the basis of obligation in international law and the
relationship between law and politics. This renders the concept of state succession inconstant; the
notions of sovereignty, state etc., which are prevalent in any particular historical epoch will
naturally influence those aspects of international law concerned with the birth, life and death of
states, and with the ensuing questions of commencement, transfer and end of the ‘attached’ rights
and obligations under international law.7 Finally, it should be noted that the relevant cases in state
practice are extremely complicated factually and involve a myriad of legal relationships that must
be examined. Often this complexity is downplayed in scholarship, and because most scholars
examine a specific category of legal relations or a specific case, it is difficult to create a coherent
picture of the topic.
When approaching the topic of state identity/continuity in international law, it may be a useful
methodological tool to apply the distinction between concepts and conceptions that was
introduced by British philosopher W.B. Gallie in an article of 1955.8 In this article, Gallie
distinguishes between a concept in the sense of a general notion, and different conceptions
thereof, i.e. the various particular instantiations of that abstract notion.9 In the case of state
identity/continuity, there is basic agreement in legal scholarship and practice that the concept
refers to the idea that a state may, in a legal sense, remain the same and thus continue its legal
existence despite certain changes in the constituent elements of statehood.10 There has, however,
historically been little agreement as to the matter of what constitutes ‘sameness’ in this relation
4
The terms ‘state identity’ and ‘state continuity’ are mostly used synonymously in legal scholarship and
practice, yet as shall be shown infra sections 2.3 and 3 it is sometimes argued that the two terms have
distinct meanings.
5
Ibid at 667-668.
6
See e.g. Kelsen, H. (2012). Principles of international law. Clark, N.J: Lawbook Exchange, at 260. That
the general concept of identity is in itself problematic has been pointed out by philosophers since the time
of Heraclitus, to whom is often ascribed the view that everything is constantly altering; no object retains all
of its component parts, or all of its qualities or characteristics, from one moment to the next.
7
O'Connell, D.P. (1967). State succession in municipal and international law I-II. Cambridge: Cambridge
University Press, I at v & 9.
8
Gallie, W. B. (1955). ‘Essentially contested concepts’. Proceedings of the Aristotelian Society, 56, 167, at
176.
9
In employing this distinction, I draw loosely on this work, but I do not hereby imply that the concept of
state identity/continuity is an ‘essentially contested concept’ in Gallie’s sense.
10
See e.g. Hall, W. E., (1880). A treatise on international law. London: Frowde, at 16-18; Oppenheim, L.
(1905). International law: A treatise. London: Longmans, Green, & Co, at 115-118, §§ 77-80; Crawford,
2007, at 35-36 & 670-672.
[3]
and competing conceptions of identity/continuity have been presented by legal scholars. In other
words, there is no general consensus as regards the legal conditions for state identity/continuity.11
The purpose of the present paper is to examine the substantive conceptions of state
identity/continuity advanced in contemporary international legal scholarship in the context of the
historical development of the concept of state identity/continuity vis-à-vis the doctrine of state
succession. The paper is structured as follows: Section two will introduce the concept of state
succession in international law and its different uses and recapitulate in a historical perspective
the main theoretical debate concerning the nature of state succession. Further, the concept of state
identity/continuity and the general rules of customary international law relating to it will be
introduced. Section three will then re-examine the role of the concept of legal personality, as
employed in late 19th century and early 20th century scholarship as a point of differentiation
between cases of state succession and cases of state continuity, as well as the critique of this
concept as presented by O’Connell in the 1960s and other later scholars. Having dismissed a
general concept of legal personality as a category able to serve as a point of differentiation
between the regime of state succession and that of continuity, the paper identifies in section four,
four main conceptions of state identity/continuity in contemporary international legal
scholarship,12 which seek to give substantive content to the concept of state identity/continuity.
First, a ‘formal’ conception of state identity/continuity based on the continued validity of the
legal rights and obligations of the entity; secondly, a ‘material’ conception of state
identity/continuity referring to an abstract status determined by material criteria derived from the
basic elements of statehood, especially population and territory; thirdly, a ‘procedural’ conception
which, while also viewing identity/continuity as an abstract status, does so based on the legal
criteria of statehood in the context of claim, recognition and acquiescence; and finally a
‘relativist’ or ‘deconstructivist’ approach to the concept of identity/continuity, according to which
the idea of identity as an abstract status is discarded, and identity/continuity is viewed as a
relational concept determined as the sum total of particular normative relationships. In section
five the strengths and weaknesses of each of these conceptions are discussed in terms of both
their theoretical underpinnings; their conformity with state practice and their implications for the
legal concept of statehood. In conclusion, section six will sum up the main propositions and
findings of the paper, namely that both the formal and material conceptions of state
identity/continuity suffer from serious theoretical shortcomings and that while the procedural
conception is generally more consistent, it may not – as pointed out by proponents of the
deconstructivist approach – entirely encompass the many variations of state practice. However,
the procedural conception of identity/continuity stands out by maintaining the aspiration of a
normative approach to the question of state identity/continuity, and thus to the problem of
statehood in international law, even if there is a certain gap between theory and practice.
11
See e.g. Kelsen, H. (2012). Principles of international law. Clark, N.J: Lawbook Exchange, at 260.
12
The notion ‘contemporary scholarship’ is here taken to loosely encompass scholars of the UN era, i.e. the
period since the inception of the organization in 1945.
[4]
2. State Succession and the Problem of State Identity and

Continuity
2.1 The Concept of State Succession
The law of state succession in international law was developed with the purpose of dealing with
the legal effects of political change. Its role is to fill a gap ‘caused by events which threaten
otherwise to destroy the continuity of the international legal order.’13 In the many scholarly works
on the topic of state succession produced over the years, a range of definitions of the concept of
succession have been proposed. 14 Some scholars have defined succession as the ‘transfer’ of
territory from one state to another, 15 while others have referred to the ‘replacement’ or
‘substitution’ of one legal subject by another in legal relations.16 The definition of succession as
the ʻreplacementʼ of one state by another in the responsibility for the international relations of
territory also appears in the 1978 and 1983 Vienna Conventions on Succession of States.17 This
definition, however, applies the term ‘responsibility’ for territory rather than the more contested
term ‘sovereignty’ over territory, a choice made by the ILC in order to avoid a discussion of the
status of the territory in question and to include questions pertaining to the obtaining of
13
Lauterpacht, H. (1927). Private law sources and analogies of international law, with special reference to
international arbitration (Contributions to international law and diplomacy). London: Longman and Green,
at 129.
14
Among the most influential works on the general topic of state succession in the English language
literature are: Keith, A. B. (1907). The theory of State succession, with special reference to English and
colonial law. Waterlow & Sons: London; Hershey, A. S. (1911). ‘The succession of States’. American
Journal of International Law, 5, 285; Feilchenfeld, E. H. (1931). Public debts and State succession. New
York: The Macmillan Company; Jones, M. (1947). ‘State succession in matters of treaties’, British Year
Book of International Law, 24, 360; Jenks, C. (1952). ‘State succession in respect of law-making
treaties’. British Yearbook of International Law, 29, 105; O’Connell, D. P. (1956). The law of state
succession. Cambridge: Cambridge University Press; O'Connell, 1967, I-II; Udokang, O.
(1972). Succession of new states to international treaties, Dobbs Ferry, N.Y.
15
E.g. Feilchenfeld, 1931, at 2, who defines succession as ‘the transfer of territory of one State to another’
(Feilchenfeld, however, notes that ‘[i]f the territory which has been lost by a state does not become a the
territory of another state, the application of the term ‘state succession’ is certainly improper; but this case is
so rare and improbable that it may safely be neglected for the purposes of terminology’, Ibid at 2) and
O'Connell, 1967, I, at 3, who defines state succession as the ‘transfer of territory from one national
community to another’.
16
E.g. Oppenheim, L., Jennings, R. Y., & Watts, A. (1992). Oppenheim's international law (9th ed.)
London: Longmans, at 208: ‘[a] succession of International Persons occurs when one or more International
Persons take the place of another International Person, in consequence of certain changes in the latter’s
condition’, and Udina, M. (1934). ‘La succession des Etats quant aux obligations internationales autres que
les dettes publiques’. Recueil Des Cours, 44, 665-773, at 665: ‘la substitution d'un sujet à l'autre dans un
rapport juridique donné qui demeure identique’. While Oppenheim's use of the term ‘international person’
rather than the term state initially reflected the fact that not all ‘states’ were fully sovereign, it also reflects
the fact that other entities encompassing international legal personality, but not territory, may undergo a
succession, e.g. international organizations.
17
Common Art. 2 (1) (b) of the Vienna Convention on Succession of States in Respect of Treaties, Vienna,
23 August 1978. 1946 UNTS, 3 (hereafter VCLSST), and the Vienna Convention on Succession of States in
respect of State Property, Archives and Debts, Vienna, 8 April 1983 (not yet in force), see Official Records
of the United Nations Conference on Succession of States in Respect of State Property, Archives and
Debts, vol. II (UN publication, Sales No. E.94.V.6). This definition is also applied in various other legal
instruments and it has generally been adopted in international legal practice.
[5]
independence of former colonies.18 Common to all these various definitions of state succession is
that they leave open the fundamental question concerning when a succession of states takes place,
i.e. which factual and legal changes in the condition or status of a state entail a succession and
which do not.
At this point, it is important to note that the notion of state succession is commonly used in
reference to two distinct yet interrelated phenomena.19 First, the notion state succession is used to
refer to those factual situations in which a succession takes place (often termed de facto
succession). Secondly, the term is applied in reference to the legal effects that are taken to follow
from such a factual occurrence (de jure succession). In other words, the term succession may be
applied in reference to the problem whether a state continues its legal existence or is
extinguished, but also to the problem of the legal consequences, which stem from the replacement
of one state by another in the responsibility for the international relations of territory. Much
confusion arises from this ambiguous application of terms, which historically is closely connected
with the legal theories concerning the nature of succession.
2.2 Theories of State Succession
As already indicated, the topic of state succession and thus the implicit questions of state
identity/continuity forms part of the established corpus of classical international law. 20
Historically, the scholarship on succession has been dominated by the alleged dichotomy between
two opposing theories or principles concerning the nature of the substitution between the
acquiring state (the successor state) and the losing state (the predecessor state).21 The main
features of these theories are well known and they shall not be explicated here. Suffice it to
recount, that on the one hand the doctrine of ‘universal succession’ describes the process of state
succession as the transmission of sovereignty based on an analogy of the Roman law idea of
inheritance in civil law.22 The successor state was viewed as direct heir to the personality and
18
Draft Articles on Succession of States in Respect of Treaties with Commentaries, Yearbook of the
International Law Commission, 1974, vol. II, pt. I, UN Doc. A/CN.4/SER.A/1974/Add.l., at 175-176, para.
4.
19
This distinction is applied by e.g. Feilchenfeld, 1931, at 2; Jones, 1947, at 360; O'Connell, 1956, at 3;
Udokang, 1972, at 107-109. See also Craven, M. C. R. (2007). The decolonization of international law:
State succession and the law of treaties. Oxford: Oxford University Press, at 64-65 & 67, who points to the
difficulties this distinction entails.
20
In Aristotle’s Politics, book. III, chapter three) we find an early example of reflections on the problem of
the state (‘polis’), identity and change: ‘This question runs up into another: on what principle shall we ever
say that the state is the same, or different? It would be a very superficial view, which considered only the
place and the inhabitants (for the soil and the population may be separated, and some of the inhabitants may
live in one place and some in another). This, however, is not a very serious difficulty; we need only remark
that the word ‘state’ is ambiguous.’ (Aristotle (1984). The complete works of Aristotle: the revised Oxford
translation. Princeton, Guildford: Princeton University Press, at 2025, para 15-20). Although the ‘state’
reflected upon by Aristotle in this passage is naturally not to compare with the nation state as we know it
today in modern international law, the quote illustrates that the problem that lies at the core of the topic of
the state identity/continuity debate has been around for a very long time.
21
See e.g. Oppenheim (Jennings and Watts), 1992, at 209.
22
See e.g. O’Connell, 1956, at 6-7 and Craven, M. C. R. (1998). ‘The problem of state succession and the
identity of states under international law’. European Journal of International Law, 9, 142, at 146-147 and
Craven, 2007, at 31. The introduction of the Roman law idea of inheritance in civil law into the law of
nations is usually credited to Grotius in De Jure Belli et Pacis published in 1646 (II,, ix, 10-12, Xiv,1, 10).
He was followed by Pufendorf (De Jure Naturae et Gentium, 1672, (viii, 12 tit. i-v, vii-ix)), Wolf (Jus
Gentium Methodo Scientifica Pertractatum, 1749 (IV)), and de Vattel (Le droit de gens, 1758 (II, 12,
[6]
legal relationships of the predecessor state in the same way as the appointed successor in Roman
law continued the personality and legal relationships of the deceased.23 However, until the late
18th century writers understood succession in terms of the person of the sovereign rather than the
state (i.e. what is today known as succession of governments).24 The only exception to this ipso
jure passing of the ensemble of rights and obligations were those of a strictly personal nature.25
This conceptualization of succession was dominant up until the latter half of the 19 th century, at
which time the ‘tabula rasa’ or ‘clean slate’ theory (also sometimes referred to as the ‘negativist
theory’) developed in line with voluntarist approaches to international law as a response to the
perceived shortcomings of the earlier doctrine.26 This new approach denied all the premises of the
theory of universal succession: The sovereignty of the predecessor is not transferred, but rather
extinguished. 27 A legal hiatus is created and the exercise of jurisdiction of the successor state is
then based on an exercise of its own sovereign will.28 In other words, there can be no ‘transfer’ of
rights and obligations between the old and the new states; there is no general rule of law that
requires the new state to assume the rights and obligations of the olds state, the new sovereign
only does so based on its own will.29
Both theories have been criticized for both their underlying theoretical assumptions and their lack
of reflection of the practice of states,30 but it is in the context of these theories of state succession
that the concept of state identity or continuity must be viewed. A radical theory of universal
succession leaves little room for a notion of state continuity, as the legal effect of the extinction of
a state is – in theory at least – full continuity. On the other hand, a radical clean slate approach
makes state identity/continuity the only option for securing legal continuity in times of change,
and this places in peril the legal continuity necessary for stable inter-state relations.
2.3 The Concept of State Identity/Continuity
The question whether the concepts of ʻstate identityʼ and ʻstate continuityʼ are synonymous or
whether there is a distinction between the two is, not surprisingly, a matter of debate and
dependent on the theoretical approach taken to the concept(s). Mostly the terms are employed
synonymously. However, some scholars find that the two are distinct, and that there is a
possibility of identity without continuity, and thus that there may be a ‘resurrection’ or ‘revival’
of states after annexation.
It must be noted that the concept of continuity is employed in two distinct ways in international
legal discourse: First, to describe situations in which legal rights and obligations continue in force
tit.191)) and in various modified versions also by later authors such as Lauterpacht (Lauterpacht, 1927) and
Udina (Udina, 1934), who held that positive international law accepts a general rule of succession to rights
and obligations with only a few exceptions.
23
See e.g. O’Connell, 1956, at 7 and Craven, 2007, at 31.
24
Craven, 1998, at 147 and 2007, at 30.
25
Hall, 1880, at 95.
26
O’Connell, 1956, at 8 & 1967, I, at 14-17; Craven, 1998, at 147 & 2007, at 32. Among the major
proponents of this theory were Cavaglieri, Feilchenfeld and Keith.
27
O'Connell, 1956, at 8.
28
Ibid at 8.
29
O'Connell, 1967, at 15; Craven, 1998, at 147-148.
30
See e.g. Craven, 1998, at 148, who points out that the clean slate theory is not a proper theory of
succession at all, but rather based on a requirement of consent, which makes possible the passing of rights
and duties from the old state to the new, and that such a strict adherence to a requirement of consent is
difficult to reconcile with the existence of external legal obligations in international law.
[7]
upon a de facto succession of states, so that the legal effect of a de facto succession may be legal
continuity. Secondly, continuity is used to denote the continuity of the legal subject of these
rights and obligations, i.e. the continued existence of the state itself. In such cases, it is said that
the state has retained its identity despite changes and continues its legal existence as opposed to
being extinguished; it is a continuator state. In this way, the notion of identity (or personality)31
serves to distinguish between the different traditional categories or types of state succession;
between cases of secession (including cession) and of dismemberment (also known as
dissolution); cases of absorption (including annexation) and of union (also known as merger); and
between the ʻresurrection’ of a state and the creation of a new state.32
The main legal principles to operate in cases of state identity/continuity are the principle of pacta
sunt servanda33 and the principle of moving treaty boundaries.34 However, state
identity/continuity does not rule out the possibility that certain pre-existing legal obligations are
modified,35 for example by operation of the general principles of the law of treaties, such as the
principle of fundamental change of circumstance (clausula rebus sic stantibus)36 or the principle
of supervening impossibility of performance.37 State identity/continuity also often occurs in
combination with instances of succession, as in cases of secession, where the ‘predecessor’ state
continues its legal existence, while one or more new states succeed to certain rights and
obligations of the predecessor.38
There is general consensus on the existence of several general rules of customary international
law concerning specific situations, where the issue of state identity/continuity or state extinction
arises: first, it is firmly established that neither change of government nor change in the internal
legal order of a given state, even by revolution or coup d’état affects the identity and continuity of
a state.39 The same holds true for situations of military occupation, probably even in cases of
prolonged occupation.40 Further, practice since 1930 supports the proposition that annexation, as
31
See infra section 3.
32
See e.g. Kunz, J. L. (1955). ‘Identity of states under international law’. American Journal of
International Law, 49, 1, 68-76, at 68.
33
As embodied in Article 26 of the Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS
331 (hereafter VCLT).
34
The principle of moving treaty boundaries is implicit in VCLT Article 29 concerning the territorial scope
of treaties, which is generally considered to embody customary international law, and also embodied in
VCLSST Articles 15, 31 (2), & 35. The applicability of this principle is, however, subject to limitations
under the law of treaties. Depending on the object or the purpose of the treaty, the territorial change may
render the execution of the treaty impossible, in which case VCLT Article 61 on supervening impossibility
of performance may be invoked. An example is treaties providing for an objective territorial regime such as
demilitarization treaties.
35
See e.g. Verzijl, J. H. W. (1969). International law in historical perspective: Part II. Leyden: A. W.
Sijthoff, at 119.
36
VCLT Article 62.
37
VCLT Article 61. In the same way, regardless of continued applicability of legal rights and obligations
under the rules of state succession, Part V of the VCLT may still be applicable. Importantly, the principle
of fundamental change of circumstances may provide grounds for termination, suspension or withdrawal
from the treaty, except in the case of boundary treaties (VCLT Article 62 (2) (a)).
38
See e.g. Marek, 1954, at 15; Kunz, 1955, at 68; Kelsen, 2012, at 260-264.
39
This rule is normally traced back to Grotius (De jure Belli, ac Pacis, II, 9, 8) and Pufendorf (De Jure
Naturae et gentium libri octo, VIII, 12, 1-3); see Wheaton, H. (1836). Elements of international law: With a
sketch of the history of the science. Philadelphia: Carey, Lea & Blanchard, at 70-71, § 16, or more recently,
see e.g. Crawford, 2007, at 678-680.
40
See e.g. Crawford, 2007, at 688-689.
[8]
the result of the illegal use of force does not bring about the extinction of a state.41 Moreover, it is
established that, as a matter of principle, changes with regard to the territory of a state do not, as
such, affect its identity, although there is no clear rule as to the amount of remaining territory
necessary in order to ensure the survival of the state, especially if territorial change coincides with
other changes in the state.42 Finally, there is a general presumption of continuity and against the
extinction of a state in international law, so that for example even prolonged lack of an
established government able to exercise overall governmental authority over state territory does
not per se lead to the extinction of the state (so-called ‘failed states’).43
However, even in cases of state extinction there is always a certain de facto continuity in the
sense that a new state will always encompass some elements of its predecessor. Except for the
legendary Atlantis, states do not completely disappear.44 In other words, the newness of a state is
therefore always to some extent relative. On the other hand, cases of state continuity also involve
changes. First, they will often involve incidents of non-continuity as a result of the change that
has occurred, only in contrast to cases of de facto state succession, such non-continuity of rights
and obligations demand a legal justification; it may in each concrete case be based on general
principles such as the principles of clausula rebus sic stantibus (VCLT Article 62) or supervening
impossibility of performance (VCLT Article 61). Secondly, in many cases, the question of state
continuity will, as already noted, arise in the context of a succession of states, as in the case of
secession.
3. State Succession versus State Identity and Continuity - A Point

of Differentiation?
3.1 The Question of Personality
The scholarship on the problem of distinguishing between cases of state succession and cases of
state identity/continuity, frequently refers to Hall’s maxim from the first edition of A Treatise on
International Law from 1880 that ‘[t]he fact of the personality of the state is the key to the
answer’.45 This much-cited phrase tends, however, to be slightly misconstrued.46 The statement is
made in relation to the question of the transfer of legal relationships from the predecessor to a
new state in cases of separation, and not to the question of determining whether the state
41
See e.g. ibid at 689-691 & 702-703. On the legal continuity of the Baltic States after the end of the USSR
annexation, see also lksoo, L. (2002). ‘State Identity, Deconstruction and Functional Splitting: The Case
of Illegal Annexations’. Austrian Review of International and European Law, 7, 91-110; lksoo, L.
(2003). Illegal annexation and state continuity: The case of the incorporation of the Baltic States by the
USSR. Leiden: Martinus Nijhoff Publishers; and Ziemele, I. (2005). State continuity and nationality, the
Baltic states and Russia, past, present and future as defined by international law. Leiden: Martinus Nijhoff.
42
This issue has been a main point of debate in the legal scholarship on state identity, continuity and
extinction. See e.g. Kunz, 1955, at 72-73.
43
See e.g. Crawford, 2007, at 715 and Ziemele, I. (2007). ‘States, Extinction of’. In Wolfrum, R., & Max-
Planck-Institut f r Ausl ndisches ffentliches echt und lkerrecht. (2008). Max Planck encyclopedia of
public international law. New York, NY: Oxford University Press, at para. 19.
44
However, the phenomenon of Atlantis or ‘disappearing states’ may well become relevant in the not too
distant future due to loss of territory as a consequence of climate change; see e.g. McAdam, J.
(2012). Climate change, forced migration, and international law. Oxford: Oxford University Press.
45
Hall, 1880, at 95.
46
E.g. hler, K. G. (2001). State succession and membership in international organizations: Legal
theories versus political pragmatism. The Hague: Kluwer Law International, at 5.
[9]
continues.47 Hall criticized legal scholarship on the subject for generally being ʻunsatisfactoryʼ.
Referring to the scholarship of Grotius, Kent and Phillimore on divisions of states, Hall laments
that: ‘It is difficult to be sure whether these writers only contemplate the rare case of a state so
splitting up that the original state person is represented by no one of the fractions into which it is
divided, or whether they refer also to the more common case of the loss of such portion of the
state territory and population by secession that the continuity of the life of the state is not
broken.’48 For Hall, then, the continued ‘personal identity’ of the state is the key to determining
whether the ‘life of the state’ was broken:
The personal identity which is thus established exists in the eye of the law solely for
international purposes. It is therefore retained so long as the corporate person undergoes
no change which essentially modifies it from the point of view of its international
relations, and with reference to them it is evident that no change is essential which leaves
untouched the capacity of the state to give effect to its general legal obligations or to
carry out its special contracts.49
Internal changes such as a change of government or temporary dissolution had no effect on the
identity, according to Hall, but some ‘external modifications’ could lead to the loss of personal
identity and extinction of the state. 50 With regard to loss of territory, Hall found that ‘[t]he
identity of the state therefore is considered to subsist as long as part of the territory which can be
recognized as the essential portion through the preservation of the capital or of the historical
nucleus, or which represents the state by continuity of government, remains either as an
independent residuum or as the core of an enlarged organization.’51 States, however, ceased to
exist by being absorbed into another state voluntarily or involuntarily by annexation, by union
with other states on equal terms, or by being ‘split into two or more new states in such a manner
47
Cf. O'Connell, D. P. (1979). ‘Reflections on the State Succession Convention.’ Zeit c t
u d c t c c t d c t, 39, 725, at 734.
48
Hall, 1880, at 97-98, n. 1. Hall refers to Halleck, whom he considers to have recognized the ‘true rule’ in
distinguishing between the case of a state which is so split up as to lose its identity from that of a state
which suffers dismemberment without losing its identity. Hall quotes Halleck regarding the latter situation:
‘Such a change no more affects its rights and duties, than a change in its internal organization, or in the
persons of its rules’ (Halleck, H. W. (1861). International law, or, Rules regulating the intercourse of
states in peace and war. San Francisco: H.H. Bancroft, at 78, §26, who refers to i.a. Wheaton, H. (1842)
History of the Law of Nations in Europe and America, from the earliest times to the Treaty of Washington.
New York: Gould, Banks, at 546, where it is stated that: ‘[…] [t]he evens that give birth to a new state in
Europe, confer on such new state no more right to change the general system into which it enters, than the
alterations which may take place in the condition of an ancient state, authorize such ancient state to
consider itself as discharged from its anterior engagements. This maxim of all civilized nations connects
itself with that principle by which states survive their governments, and by which the imprescriptible
obligations of treaties survive the rulers by whom they are contracted […]’. Wheaton also employed a
terminology of ‘identity’ in the first edition of Elements of International Law from 1936: Referring to
Grotius (ii, 9, § iii), Wheaton states that ‘[t]he identity of a state consists in its having the same origin or
commencement of existence; and its difference from all other states consists in its having a different origin
or commencement of existence. This existence [of the state] continues until it is interrupted by some
change affecting the being of the state’, at 70, § 16 [emphasis added]. Hereafter, Wheaton recounts the
effects on the identity of a state of revolution; external violence (conquest, cession by peace treaty); the
conjoined effect of the two; of secession; change in the person of sovereign or in the internal constitution of
a state), ibid at 70-75, § 16.
49
Hall, 1880, at 22.
50
Ibid at 22-24.
51
Ibid at 24.
[10]
that no part can be looked upon as perpetuating the national being’.52 Accordingly, based on the
nature of the change occurring and the extent to which the personality or identity of the state is
affected, international law scholarship of the late 19th and early 20th century commonly
distinguished between so-called ‘total’ (or ‘universal’) and ‘partial’ succession.53 If the legal
identity or personality of the state was lost there was said to be a ‘total succession’ of states while
if territory was lost but identity or personality remained unimpaired, the process was described as
‘partial succession’.54
The distinction between state succession and succession of governments in international law is
based on the assumption that there is, in principle, a clear distinction between the legal
personality of the state and its government at any given time.55 Today this distinction is
uncontroversial. However, this distinction was only introduced into international legal thinking in
the mid-19th century, when Bluntschli,56 according to O’Connell, introduced a ‘dogmatic’
distinction between succession of governments and succession of states as an implication of
‘Hegel’s personalization of the State’.57 Until then the problems raised by both types of change
had been uniformly solved.58 According to O’Connell, this development placed the problem of
the ‘personality’ of the state at center stage: ‘With the abstraction of the concept of sovereignty,
however, a conceptual chasm was opened between change of sovereignty and change of
government; in the one instance a problem of substitution in the possession of rights and
obligations was raised; in the other, continuity of these rights and obligations was presumed in
virtue of continuity in the personality of the possessor.’59
At this point we must enquire further into the notion of ‘personality’ which is thus placed at the
heart of the distinction between the two legal regimes of continuity and succession alongside the
concept of identity. Is the concept of personality as applied in this context synonymous with the
concept of identity? The concept of personality in international legal scholarship has traditionally
served the purpose of drawing a distinction between those entities that are relevant to the
52
Ibid at 24.
53
See e.g. Hershey, A. (1911). ‘The succession of states’. The American Journal of International Law, 5, 2,
285-297 and Oppenheim, 1905, at 119, § 80.
54
The notions of ‘partial’ and ‘total’ succession were, as pointed out by O’Connell, 1957, at 4 -5, used not
to imply a total or partial succession to the legal relations of the predecessor, but merely as ‘[..] an
abbreviated way of defining the extent of change.’
55
Crawford, 2007, at 35. In most textbooks today, the question of succession of governments is not dealt
with as a separate legal issue; see e.g. Shaw M. N. (2014). International law. Cambridge: Cambridge
University Press.
56
Bluntschli, J.C. (1895). Le droit international codfié, Paris: Guillaumin et cie, at 118, § 24: ‘La
personalité internationale d’un état ne subit aucune modification par suite du fait que son gouvernement
vient à changer, - même s’il a eu revolution violente, - pourvu que le people et le territoire conservent leur
individualité’.
57
O’Connell, D.P. (1970). ‘Recent problems of state succession in relation to new states’. Recueil des
Cours, II, at 105 & 107. On Hegel’s concept of the state in relation to the concept of legal personality, see
Nijman, J. E. (2004). The concept of international legal personality: An inquiry into the history and theory
of international law. The Hague: T.M.C. Asser. Nijman, at 111-113 & 139.
58
In O'Connell, 1967, vol. I, at 5, reference is made to the lack of such a distinction in the works of i.a.
Grotius, Pufendorf, de Vattel, de Martens, and Wheaton. Grotius recognized a distinction between real and
personal agreements based on the different role of ‘the ruler’ in relation to particular kinds of agreements
and this eventually lead to a separation emerging between the personality of the sovereign of the ‘state’ (i.e.
the institution and apparatus of governance) and the personality of the individual ruler. On the distinction
between ‘real’ and ‘personal’ treaties, see de Vattel, E. & Chitty, J. (1863). The law of nations: Or,
Principles of the law of nature, applied to the conduct and affairs of nations and sovereigns. II.
Philadelphia: T. & J.W. Johnson, xii, at 204; and critically O’Connell, 1970, at 107.
59
O'Connell, 1967, I, at 5-6.
[11]
international legal system, and those that are not.60 In the legal scholarship of the late 19th and
early 20th centuries, the formation and existence of states were generally considered to be outside
the scope of international law,61 and the concept of international legal personality was mostly
regarded as synonymous with statehood.62 A state’s participation in the international community
was taken to depend on recognition by the existing members, and by this recognition, a state
automatically becomes an international person.63
3.2 The Elimination of Personality?
In his second, extensive treatise on the subject of state succession published in 1967 and in his
later work of the 1970s, O'Connell grew increasingly critical of ‘personality’ as a determinant
factor within the law of state succession and sought to eliminate any consideration of this issue
from the law of state succession.64 Taking his point of departure in the formal conception of
international legal personality formulated by Hans Kelsen,65 O’Connell argued that personality
was ‘not a reflection of some prototype sitting on a cloud somewhere, but merely a shorthand
expression indicating the faculties of legal action.’66 In other words, according to this ‘a
posteriori’ or ‘modern positivist’ conception of ‘international legal personality’, the legal
personality of any entity depends solely on the content of an international norm addressing it.67
As a consequence, O'Connell advocated shifting the paradigm from personality to effect; what
was necessary was an analysis of the real effect of change or continuities in political, social and
administrative structure.68According to this approach all changes to the condition of the state
60
Kjeldgaard-Pedersen, A. (2015). ‘The International Legal Personality of Armed Opposition Groups’.
Forthcoming. Recent studies on the concept of international legal personality include Nijman, 2004, and
Portmann, R. (2010). Legal personality in international law. Cambridge: Cambridge University Press.
61
See generally Crawford, 2007, at 14-17. As stated by Oppenheim, 1905, at 264, § 209, ‘[t]he formation
of a new State is […] a matter of fact, and not of law’.
62
Crawford, 2007, at 29. See also Portmann, 2010, at 42-79. For Hall (1880, § 3, at 19) however,
international personality is not the exclusive attribute of states: ‘Communities possessing the marks of
states imperfectly are in some cases admitted to the privilege of being subject to international law, in so far
as they are capable of being brought within its scope of operation.’
63
Portmann, 2010, at 43.
64
In his 1956 treatise, O'Connell found (at 31) that the distinction between ‘total’ and ‘partial’ succession
to be of ‘considerable importance to the law of State succession’, but that distinguishing one scenario from
the other was at times ‘very difficult’. Nevertheless, he maintained the distinction based on the concept of
personality, without dedicating any effort to a closer examination of the problem of which changes
constitute a ‘total’ and which a ‘partial’ succession. However, as pointed out by James Crawford, the
substantial part of O'Connell’s 1956 treatise is ordered around the distinction between total and partial
succession (Crawford, J. (1980). ‘The contribution of Professor D.P. O'Connell to the discipline of
international law’. British Year Book of International Law, 51, 1, at 2) and he further applies the traditional
categorization of cases based on the extent of change (dismemberment, secession, absorption etc.).
O'Connell’s quest to ‘eliminate personality’ from the law of state succession was examined by Craven,
1998 152-154 & 2007, at 75-77.
65
elsen, H. (1932). ’Théorie générale du droit international public. Probl mes choisis’. cu d Cou ,
42, IV, 121, at 141. See Portmann, 2010, at 173 et seq.
66
O'Connell, D. P. (1965). ‘Independence and Problems of State Succession’. In O’ rien, W.: The New
Nations in International Law and Diplomacy. London: Institute of World Policy.7-41, at 11. See also
O'Connell, D. (1970). International law (2nd ed.). I. London: Stevens & Sons, at 80-81.
67
See Portmann, 2010, at 173-175.
68
O’Connell, 1967, I, at vi & II, at 7.
[12]
would fall somewhere along a continuum in terms of the effect of the changes on a state's
international rights and obligations.69 O'Connell, however, emphasizes that the general
presumption would be one of continuity of rights and obligations only to be rebutted by ‘concrete
analysis’.70
Nevertheless, despite pointing out the problems of differentiation inherent in the distinctions
between state continuity/succession and succession of governments/states, O'Connell maintains
the categorization as the structural point of departure also in his 1967 treatise. At the same time in
the treatise, O'Connell stresses that the subject of examination is limited to the legal problems that
arise from de facto succession of states, i.e. problems of state succession de jure, and not
concerned with the question of ‘when a succession, or discontinuity in legal personality occurs’,
i.e. the problem of de facto succession or state identity/continuity. 71
In recent years, scholars such as Matthew Craven and Ineta Ziemele have pointed to the difficulty
in using a ‘formal’ or ‘a po t o ’ concept of legal personality as a point of differentiation.72
According to Craven ‘[i]f personality connoted nothing more than an undifferentiated ‘legal
capacity’, it could not usefully be employed as means of determining what rights and obligations
a State might have as a consequence of a change in sovereignty, nor as a way of usefully
separating the doctrine of succession from other forms of arguments about legal change.’73
Further, Ziemele points out that the concept of legal personality generally is as futile in terms of
the task of distinguishing one legal person from another in substantial terms, as it is in relation to
the problem of differentiating between cases of (de facto) state succession and state
identity/continuity.74 The question of identity is not answered by any reference to its legal
personality, as ‘irrespective of whether [the state] is “new” or “old”, the state as such has legal
personality.’75
It seems that the concept of personality or identity understood as what is personal about the state
cannot easily be eliminated from the problem of defining either continuity of the legal subject or
its rights and obligations. As the concept of international legal personality as commonly
understood in general international law today does not help us to define the identity or continuity
of a subject of international law, we must turn to the notion of the legal personality of a state or
‘state personality’, understood as its identity as an individual entity, and the various conceptions
of this identity or personality in contemporary international law scholarship.
69
O'Connell, 1967, I, at vi.
70
Ibid: ‘If there is any rubric, therefore, to which one could resort as a touchstone for the solution of all
problems of political change over territory it might be this: that the consequences of such change should be
measured according to the degree of political, economic and social disruption which occurs.’
71
As to the latter question, he simply refers to Marek, 1954.
72
Craven, 2007, at 216 et seq and Ziemele, I. (2005). State continuity and nationality: the Baltic States and
Russia: past, present and future as defined by international law. Martinus Nijhoff Publishers, at 97-98.
73
Craven, 2007, at 216 et seq.
74
Ziemele, I. (2015). ‘A room for 'state continuity' in international law? A constitutionalist perspective’. In
Chinkin, C., Baetens, F., and Crawford, J. Sovereignty, Statehood and State Responsibility, Essays in
Honour of James Crawford. Cambridge: Cambridge University Press, at 274. In this context, Ziemele
refers to Crawford’s distinction (Crawford, 2007, at 30) between ‘general’ or ‘objective’ legal personality
and ‘special’ or ‘particular’ legal personality, noting that ‘the latter characterizes a particular subject of
law.’ This, however, does not appear to be the meaning of Crawford’s notion of ‘particular personality’:
Crawford’s distinction centers on, whether the rights and obligations of an entity are conferred by general
international law and binds erga omnes (‘general legal personality’) or by particular states for special
purposes binding only these consenting states (‘special’ legal personality); Crawford, 2007, at 30.
75
Ziemele, 2015, at 274.
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4. Conceptions of State Identity and Continuity
This section will analyze the varying ways in which state identity/continuity have been
conceptualized in contemporary legal scholarship. These conceptions will be presented according
to a categorization as to whether the theory may be said to rely on ʻformalʼ purely legal criteria,
ʻmaterialʼ or substantial criteria, a combination of ‘objective’ and ‘subjective’ criteria, or purely
‘subjective’ criteria for determining the identity and/or continuity vel non of a state.76
4.1 A ʻFormalʼ Conception of State Identity/Continuity
A ‘formal’ conception of state identity and continuity was proposed by rystina arek in her
1954 thesis, ‘Identity and Continuity of States in Public International Law’.77 In this extensive
study Marek analyses the problem of state identity/continuity based on the practice of
international law in the late 19th and early 20th centuries.78 She defines the ‘state identity’ as ‘the
identity of its international rights and obligations, as before and after the event, which called such
identity in question, and solely on the basis of the customary norm ʻpacta sunt servandaʼ.’79 Thus
in this view, the determination of the identity of an entity is simply shorthand to address the
continued validity - in temporal, personal and geographical terms - of norms of both conventional
and customary law in a transformed political situation in which the issue of validity has arisen.
‘State continuity’ is then defined as ‘the dynamic predicate of state identity, simply meaning that
one and the same subject of rights and obligations continues to exist.’80 Therefore, for Marek a
state which is identical at two different points in time, in the sense described, is ipso facto
continuous. 81 This implies that once a state has become extinct it is impossible for the state to
reappear: There is no ‘miraculous resurrection’ of a state once its extinction has been
established.82
Based on both international and national judicial decisions as well as doctrine,83 Marek insists on
the strict separation between the concepts of state identity/continuity on the one hand and state
76
The distinction between a formal and material concept is commonly made in scholarship on the subject,
see e.g. Bühler, 2001, at 8-12. Not surprisingly, not all the examined concepts of state identity/continuity fit
neatly into these categories, and they should be considered no more than a means for structuring the
account of the scholarly positions that will be accounted for. The present examination does not purport to
amount to a complete or exhaustive account of the concept of state identity/continuity. First, it must be
noted that the scope of the examination has been limited to scholars writing in English, only including the
most essential scholars writing in German and French. Secondly, the account focuses on scholars who have
attempted to formulate a conception of state identity/continuity beyond simply accounting for the
traditional customary international law rules relating to identity/continuity and extinction of states.
77
The book was reprinted in an unchanged edition in 1968 (Marek, K. (1968). Identity and continuity of
states in public international law (2nd ed). Gen ve: Libr. Droz).
78
The following cases are included: The creation of Italy as a single uniform state in the period 1850-1870;
the creation of the Austrian Republic in 1918 upon the disintegration of the Austro-Hungarian Monarchy,
the formation of the Kingdom of Serbs, Croats and Slovenes in 1918; the Italian annexation of Ethiopia in
1936; the disintegration of the Czechoslovak Republic in 1939; the Italian invasion of Albania in 1939; the
Anschluss of Austria in 1938; the incorporation of the Baltic States into the USSR in 1940; the German-
Soviet partition of Poland in 1939 and the Yalta solution to the Polish problem in 1945.
79
Marek, 1954, at 5 & 14.
80
Ibid at 5.
81
Ibid at 5.
82
Ibid at 6 & 581.
83
In this she relies primarily on the writings of Huber, Shönborn and Udina; ibid at 10, n. 2.
[14]
succession on the other: ‘Whereas the problem of State identity and continuity bears on the
identity of the subject (within the meaning of the proposed definition), the problem of succession
relates to the identity of certain rights and obligations between d t ubj ct .’ In other words,
in the case of identity there is one subject of international law; in the case of succession there are
at least two.84 Whereas in Marek's view the concepts of identity/continuity and succession are
thus logically mutually exclusive, this can only be so if there is no such thing as universal
succession, i.e. no succession into the sum total of rights and obligations of the predecessor in
general international law, as this would render it impossible to distinguish between cases of
universal succession and cases of state identity.85 Conveniently, Marek finds that neither state
practice nor international judicial decisions support such a notion of universal succession as there
is in general no succession to personal treaties nor succession to delictual responsibility.86
In the endeavor to uncover what set of facts determines if a state continues to exist or becomes
extinct, Marek relies on both legal doctrine and analysis of state practice. Having recounted the
three ‘undoubted and fully developed’ rules of customary international law, i.e. that identity is not
lost due to territorial changes, except if the loss is ‘total or very considerable’;87 due to internal
changes, whether brought about by constitutional means or not;88 or due to belligerent occupation
of a state's territory.89 But what, then, is the substantial criterion for state identity according to
Marek? First, she rejects recognition as a criterion of state identity/continuity, arguing that it
‘withdraws the question of continued existence of a State from the realm of objective norms and
makes it dependent upon the will of third States.’90 Recognition is rather declaratory and thus
only of evidentiary importance.91 Marek further dismisses a material criterion for state identity,
noting that while the ‘identity of territory and population can vouchsafe the historical identity and
continuity of a nation’, from both a theoretical point of view and based on her analysis of state
practice ‘it discloses nothing about the identity of and continuity of a State.’92 For Marek the state
is a ʻformalʼ notion.93
Rather, with an outset in Kelsen's Pure Theory of Law, Marek establishes a test for state identity
relying in essence upon the notion of independence, which she considers to be ‘chiefly, but not
exclusively, expressed in the delimitation of the legal order of the State, that is, in its basic
norm.’94 According to arek a state is independent ‘a) when it is formally strictly delimited from
all other States by an autonomous basic norm of its legal order and consequently, directly
84
Ibid at 10 [emphasis in the original].
85
Ibid at. 10.
86
Ibid at. 11. Marek, however, admits that universal succession may take place on a conventional basis, i.e.
based on a convention between the predecessor and the successor state, but such transactions, she argues,
takes place between two states; ibid at 13.
87
Ibid at 15-24.
88
Ibid at 24-73.
89
Belligerent occupation in the sense of occupation effected during actual hostilities; ibid at 73-128.
90
Ibid at 149.
91
Ibid at 159.
92
Ibid at 588.
93
Ibid at 588: ‘[h]owever indispensable the reliance on its material elements: territory and population –
however inseparable the organic interdependence of these material elements and the legal order which
binds them together into a legal entity, the state is not a tangible phenomenon of the physical world, but a
construction of the human mind which has joined all these elements into a single and separate whole. This
is why an enquiry into the material aspect of the identity and continuity of States had to be rejected from
the start.’
94
Ibid at 186. It should be noted that Marek also refers to ʻinternational responsibilityʼ, but as a corollary
rather than a separate criterion for determining the identity of a state as international responsibility in her
view is a consequence of independence. Marek is adamant that there is no succession to international
responsibility; ibid at 189-190).
[15]
subordinated to international law, and b) when it is in fact free from subjection to any other State
[...]’, i.e. independence in law as well as in fact.95 Thus, as long as a state retains its independence
it remains identical despite changes in its territory and people. Marek, however, emphasizes the
interdependence of independence with the other criteria of statehood:
For just as the delimitation of its legal order, i.e. the surviving basic norm, safeguards the
independence and identity of a State in the case of territorial, and personal, changes, so
that independence and identity is preserved by the surviving territorial and personal
delimitation, when the legal order crumbles. The independence and, consequently, the
identity of the State is preserved because the new basic norm [...] is still fully delimitated
from the legal order of any other State, being produced from within the surviving
territorial and personal delimitation and is therefore still derived directly from
international law. Independence, and identity, would therefore not be preserved when not
only the legal order of the State, but also its territorial and personal delimitation were to
disappear.96
This leads arek to identify two instances of loss of independence or ʻnon-identityʼ: first, if a
new basic norm is introduced from outside the territorial and personal delimitation of the state in
question i.e. when the legal order of another state is extended over the territory concerned,
leading to the state’s loss of independence (i.e. annexation). Secondly, if the remaining territorial
and personal delimitation of a state breaks down and there is no single, new basic norm being
produced from within covering the old delimitation, this entails the loss of independence and,
thus, identity of the state, and the formation of several new states on the territory in question (i.e.
dismemberment).97
4.2 A ʻMaterialʼ Conception of State Identity/Continuity
In contrast to the formal conception of state identity/continuity, what has been termed a ʻmaterialʼ
approach or conception is concerned with the ‘real things’ pertaining to the state such as its
population, territory, ʻhistorical nucleusʼ, and effectiveness of government. 98 According to this
view identity is an abstract status, which may be determined by assessing certain criteria.
This point of view may be represented by the scholarship of Giorgio Cansacchi de Amelia.99 In a
lengthy article published in 1970, he examines the concepts of state identity and state continuity
from a theoretical perspective with reference to both state practice and scholarship from the early
19th century until 1970.100 While he acknowledges the differing of opinions in doctrine, Cansacchi
is one of the few scholars to insist on distinguishing between the concepts of state identity and
that of continuity. He posits that the concept of continuity is applicable in situations in which the
95
Ibid at 180 & 186.
96
Ibid at l86 & 589.
97
Ibid at 187.
98
Bühler, 2001, at 8.
99
In the 1950s Alfred Verdross also argued that the people organized in a state constitutes the international
personality of the state, and that the identity of the people is therefore the crucial criteria for determining
the identity and continuity of the state. In an article of 1950 Verdross notes that ‘[…] when determining the
identity of States, modern international law proceeds from their population. [...] [This] also shows that it is
not the apparatus of the State as such, but the people organized in it that constitute the ‘State’ as a subject
of international law.’(Bühler, 2001, at 10 citing Verdross, A. (1950). ‘Die völkerrechtliche Identität von
Staaten’. In Festschrift fur H. Klang, Juristische Blätter, 72, at 19 [English translation by Bühler].
100
Cansacchi di Amelia, G. (1970). ‘Identité et continuité des sujets internationaux’, Recueil des Cours,
130, 2, at 1-94.
[16]
state does not cease to exist due to debellatio, annexation or inclusion into a foreign federal
state.101 On the other hand, he considers state identity concerning situations in which a ʻnewʼ state
is considered identical to an already extinguished state to be based on a legal fiction.102 Here,
there is no ʻrealʼ continuity, rather the concept of state identity is a legal fiction to support the
political and historical continuity of human society.103 In other words, the concept of state
continuity necessarily involves identity, while identity does not necessarily involve continuity.
This fictitious concept of identity is, according to Cansacchi, also justified by the ʻidentityʼ of the
people in its ethnic, linguisticʼ and historic characteristics.104 It is clear that Cansacchiʼs
terminology departs significantly from the traditional usage; his concept of continuity refers to
what is commonly called identity, while his concept of identity denotes the fictitious identity
between a new state and a previous, now extinguished state.
Cansacchi posits that the classic elements of statehood – territory, population and what he terms
ʻindependent political organizationʼ – governs both the acquisition of statehood and state
continuity.105 However, referring to Grotius, he maintains that it is the people, which forms the
ʻrealʼ entity of the state; not as ‘une masse inorganique’,106 but as a politically organized and
independent group of people capable of expressing its will.107 Substantively, Cansacchi’s
conception of state continuity is based on the material element of the people, which constitutes
the international personality of the state, notwithstanding changes in the legal order or
government of the state.108 This pivotal role of the people in state continuity is seen to be
reflected in the three traditional rules of customary law that state continuity is not affected by
constitutional changes, even revolution, 109 nor even by extensive changes in the population or
territory of the state;110 and finally that state continuity is only terminated by total occupation by
an enemy state. 111
A similar argument was made by Herman Mosler in 1962, who did not, however, place the
exclusive focus on the people of the state: ‘The international legal capacity of a State, however,
remains the same unless its substrate (territory and people) changes to such an extent that the
continuity of the state as the historical-political form of life of the people organized in it is
interrupted’112
In an effort to combine the formal conception of state identity with material elements, Wilfried
Fiedler has suggested that the broader political, historical and intellectual context of a situation,
which gives rise to questions of state identity/continuity, must be taken into consideration in
addition to consideration of a formal nature. In a 1978 article, he proposes to add to the formal
101
Ibid at 9-10.
102
Ibid at 10.
103
Ibid at 10: ‘[o]n peut donc affirmer que si la continuité d’un Etat comporte forcément l’identité du sujet
international personnifié dans cet Etat, l’identité d’un Etat, par elle-mȇme, ne comporte pas sa continuité
étatique.’
104
Ibid at 57.
105
Ibid at 20-21.
106
Ibid at 14.
107
Ibid at 18.
108
Ibid at 88: ‘[a] l’égard des Etats, la continuité du sujet international est determinée par la permanence de
son peuple, dans son indépendence étatique et dans son individualité ethnique-historique; c’est le peuple
qui constitute, sous l'enveloppe de l'ordre juridique toujours changeant et sous les gouvernements qui se
succèdent, la ‘personne réelle’ de l’Etat.’
109
Ibid at 22.
110
Ibid at 25.
111
Ibid at 26.
112
Bühler, 2001, at 10 citing Mosler, H. (1962). ‘Völkerrechtsfähigkeit’. In H.-J. Schlochauer (ed.)
Wöterbuch des Völkerrecht, 3, at 675 [English translation by Bühler].
[17]
approach of continuity a ‘material concept’, which would ‘[…] extend beyond a narrow, legalistic
approach, in that political, historical and intellectual elements would be encompassed.’ 113 Fielder
points out that the objective of such a conception of continuity would not be to replace the
prevailing concept of identity, ‘[…] but rather, with regard to the legal reality of political
existence, to extend it to include material factors.’114 Fielder argues that a fair assessment of the
continuity problem cannot be based on a ‘supposedly ʻpureʼ legal solution’, but must also include
political factors.115
In line with this approach, Matthew Craven argues that international law needs to incorporate
within its terms a substantive, rather than merely a formal, conception of the state in order for
international law to be capable of explaining legal continuity in times of radical change. 116 In a
1998 article Craven notes that identity – unlike personality, understood in its general sense as
international legal personality – is concerned with the substance rather than the form of the state.
117
However, in the same way that personality as an undifferentiated ‘legal capacity’ is unhelpful
in determining identity, so is the concept of statehood. The traditional criteria for statehood are
‘abstract’ in the sense that they relate not to a particular territory, population etc., but simply to a
territory, population etc.; and ‘exclusory’ in the sense that they have a threshold function in terms
of participation in international discourse.118 In other words, in contrast to the notions of
personality and statehood, ‘[i]dentity assumes that individual states, while being members of a
particular class of social or legal entities, also possess certain distinguishing features that
differentiate one from another. Identity, therefore, presumes personality but is concerned with
what is personal or exceptional in the nature of the subject.’119 The traditional criteria of
statehood, then, cannot determine identity or continuity. Legal continuity of the state must be
determined based not only on the formal properties of statehood, but also on material elements,
i.e. social, political and cultural identity.120 It is the sense of ‘self, singularity, and community’
that justifies the attachment of international legal obligations to particular territories and social
groups.121 However, when it comes to substantiating these material determinants and
transforming them into a legally operational concept, Craven leaves this endeavor for future
scholarship.
4.3 A ʻProceduralʼ Conception of State Identity/Continuity
Another approach, which also views identity as an abstract status, but is based on the legal criteria
of statehood, has been proposed by scholars such as James Crawford and Konrad Bühler. In this
view, ‘state continuity’ refers to cases where the same state can be said to continue to exist
notwithstanding certain changes in its conditions, which could give rise to legitimate doubt as to
113
Bühler, 2001 at 11 citing Fiedler, W. (1978). Das Kontinuitätsproblem im Völkerrecht. Freiburg: Alber,
at 139 [English translation by Bühler]. See also Fielder, W. (1973). ‘Staats- und völkerrechtliche Probleme
des Staatsuntergang’, Zeitschrift für Politik, at 170-178 and Fiedler, W. (1992) ‘Continuity’. In Bernhardt,
R. (ed.) Encyclopedia of Public International Law North-Holland, 1, 806-809, at 807.
114
Bühler, 2001 at 11 citing Fiedler, 1978, at 139 [English translation by Bühler].
115
Ibid at 10.
116
Craven, 1998, at 160-161.
117
Ibid at 161. Here Craven understands personality as the general concept of international legal
personality.
118
Ibid at 160-161.
119
Ibid at 161-162.
120
Ibid at 160.
121
Ibid at 153.
[18]
its continued existence.122 In this way, continuity is perceived as the outcome of a procedural
process involving both ʻobjectiveʼ factors derived from the legal concept of statehood, and
ʻsubjectiveʼ factors relating to the interplay of claim, recognition and acquiescence.123
The main proponent of what has been called a ʻproceduralʼ approach to the problem of state
identity/continuity is James Crawford, who offered a comprehensive analysis of the topic in his
leading 1979 study, The Creation of States in International Law, which considers state practice
since 1815.124 Crawford points out that the question of identity, continuity and extinction should
be seen as depending on ‘the basic criteria for statehood, applied in a context of claim,
recognition and acquiescence.’125 According to Crawford, a state continues as such as a matter of
international law ‘[..] as long as an identified polity exists with respect to a significant part of a
given territory and people ‘, the ‘noyau irréductible de l'État’ remains,126 and the state is
independent and makes a claim to continuity.127 In other words, Crawford’s concept of identity
includes a distinctly material element: ‘What matters is principally the historical continuity of the
community the State embodies, notwithstanding changes in its population, territory or system of
government’.128 But this historical aspect must be derived from the claim set forth by the putative
continuator state.129 At the same time, the recognition of or acquiescence in such claims by states
concerned will be highly influential if not decisive. 130
In a doctoral thesis on state succession and membership in international organizations from 1946
to the mid-1990s, published in 2001, Austrian diplomat onrad hler builds upon Crawfordʼs
approach and presents what he calls a ‘pragmatic procedural approach’ to the concept of state
identity/continuity. hlerʼs study is based the ‘the currently prevailing test’ for determining the
identity/continuity of a state, that is an evaluation based on both ʻobjectiveʼ and ʻsubjectiveʼ
factors, the former being the variants of the basic legal criteria for statehood, and the latter the
claim to continuity made by the state in question, and, importantly, the recognition of, or
acquiescence in, this claim by third states.131
While Bühler finds the objective criteria to be able to provide solutions in most cases, there are
borderline cases, in which the application of the traditional criteria are not able to provide an
unequivocal answer.132 The application of such additional ʻsubjectiveʼ factors, which hler finds
to be receiving growing support in both legal doctrine and practice, are justified first by the fact
122
See Fiedler, 1992, at 807-808; Czaplinsky, W. (1993). ‘La continuité, l’identité et la succession d’Etats –
evaluation de cas récents’, Revue belge de droit international, 26, 2, at 274-392, at 374; llerson, R.
(1993). ‘The continuity and succession of states, by reference to the former USSR and Yugoslavia’.
International and Comparative Law Quarterly. 42, 3, 473-493, at 475-476; Craven, 1998, at 151; 1996 ILA
Report, at 657; 2002 ILA Report, at 2; ‘Final Report on the Economic Aspects of State Succession,’
International Law Association. (2006) Report of the Committee on Aspects of the Law of State Succession,
Conference held at Toronto, at 11; Crawford, 2007, at 667-668.
123
See Bühler, 2001, at 17-18. This approach to state identity and continuity also forms the basis of a study
of the dissolutions of the USSR and SFRY conducted by Rein Müllerson. While Müllerson refers to the
‘objective’ factors concerning territory, population and government, and the importance of recognition in
case of substantial changes, he emphasizes the role of the ‘subjective’ fact of the state’s self-perception and
claim to identity/continuity or to succession; Müllerson, 1993, at 477.
124
The thesis, first published in 1979, came out in a revised and updated second edition in 2007.
125
Crawford, 2007, at 670.
126
Ibid at 671 with reference to Stern, B. (1996). ‘Succession d’Ètats’, Recueil des Cours, 262, at 80.
127
Ibid at 671.
128
Ibid at 669.
129
Ibid at 668.
130
Ibid at 671.
131
Bühler, 2001, at 17- 18.
132
Ibid at 17-18 & 312.
[19]
that in practice, such claims to continuity or non-continuity are made by states and recognized or
objected to by third states; and secondly by the lack of objective criteria or customary rules
providing clear outcomes in marginal cases.133 He finds that the subjective factor of recognition
constitutes ‘the ultimately decisive criterion’ for determining the identity/continuity of a state.134
Finally, like Crawford, Bühler emphasizes the importance of the basic assumption of continuity
in international law.135
4.4 A ʻRelativistʼ or ʻDeconstructivistʼ Conception of State

Identity/Continuity
In response to state practice since 1989, i.e. the unification of Germany, the break-ups of
Czechoslovakia, the USSR and the Socialist Federal Republic of Yugoslavia (SFRY), legal
scholarship has increasingly either discarded the concept of state identity/continuity altogether or
looked - sometimes almost exclusively - to the role of recognition of claims to state
identity/continuity in order to account for the seemingly irreconcilable outcome of state practice.
In his study Bühler finds that the procedural approach to identity/continuity encountered
‘insurmountable difficulties’ and was not able to account for state practice; the variances of state
practice even seemed to undermine the ‘dogmatic dichotomy’ between state identity/continuity
and succession as such. 136 Bühler concludes that any objective determination of state identity
based on legal criteria is ‘a theoretical illusion’ and ‘an expression of a manifest misconception of
reality’.137 The apparent failure of the formal and the material conceptions of state
identity/continuity to offer adequate explanations for numerous phenomena in practice prompted
scholars of international law to depart from the ‘dogma of the indivisibility of State identity’. 138
The result was a general trend towards yet another paradigm in international legal theory
amounting to the ‘relativization’ or ʻdeconstructionʼ of the traditional conceptions of state
identity/continuity.
Apparently, the first author to suggest a move beyond the formal or material conceptions of state
identity/continuity, was Austrian diplomat Helmut Tichy, writing in 1992-1993 soon after the
demises of the USSR and the SFRY.139 He emphasized the case of the Russian Federation and its
assumption of the USSR’s UN membership including its permanent seat in the Security Council:
The practice of States [...] shows that ‘identity’ or ‘continuity’ may be accepted by the
international community with regard to special matters, while not being accepted with
regard to others. Acceptance in one area does not necessarily prejudge the issue of
‘identity’ in other areas, a ‘ d t ty’ ot a mp act, w c ca b a d
objectively, but, rather, the grant of a special status by the other members of the
international community. There may be ‘identity’ for the purposes or within the [UN],
133
Ibid at 17. A problem with hler’s analysis is that the ‘test’ he identifies for establishing
identity/continuity in state practice is partly derived from the state practice he sets out to examine; ibid at
17-18 & at 312.
134
Ibid at 17.
135
Ibid at 18.
136
Ibid. at 313.
137
Ibid at 316.
138
See ibid at 316- 318.
139
The scholars in question have mainly taken as their point of departure the question of membership in
international organizations, which becomes pivotal due to the traditional rule of non-succession to such
membership.
[20]
and – at the same time – non-identity as far as other treaties or property rights are
concerned.140
So a state may – from a theoretical point of view – be considered identical or a continuator state
in one area of international law, while simultaneously ‘new’ in other such areas. In this view, the
question of identity is not an either/or but a both/and. However, while Tichy notes the obvious,
complex theoretical and practical problems raised when the concept of identity is reduced to one
of ‘partial identity’, he does not pursue these matters further.141
A related approach to overcoming the problems posed by recent state practice was presented by
Wilfried Fiedler in a 1998 article in which he, partly in departure from his earlier view, proposes
a concept of ‘functional splitting’ and ‘functionally limited identity’ in relation to membership in
international organizations: ‘An ever more frequent phenomenon […] is that of the functional
splitting of the existence of a State as a subject of international law as a result of its membership
in international organizations […].’142 eferring to the example of the ussian Federation’s
continuation of the USS ʼs membership of the UN Security Council, Fiedler notes that ‘[t]his
legally rather vague term designates the functionally limited identity of Russia with the [USSR] in
one body of the [UN]. Russia assumed this function with the consent of the other CIS States. It is
open to dispute to what extent the limited function of a ʻcontinuator state’ in one international
organization will have any effect on the otherwise presumed dismemberment.’ 143 The notion of a
‘functionally limited identity’ of a state as proposed by Fiedler may be said to correspond to
Tichy’s notion of ‘partial identity’. oth refer to what hler has termed a ʻvertical splittingʼ of
the identity of a state in relation to different areas of international law, e.g. the law of
international organizations, treaties or state property.144 The notion ʻfunctional splittingʼ of the
existence of a state as a subject of international law, however, may be said to add yet another
dimension to the ʻdeconstructionʼ of state identity and implicitly statehood since this further
involves a ʻhorizontal’ splitting among various levels of international personality, functional
status and capacities under international law.145 As an example of this ‘functional splitting’, even
within one area of international law, one may point to membership in international organizations.
Bühler argues that practice has shown that a state may be considered new for the purpose of UN
membership and simultaneously identical, under certain circumstances, in the framework of, e.g.
the World Meterological Organization.146
Martti Koskenniemi has addressed the problem of state identity/continuity both in an extensive
study of the recent cases of state succession in Eastern Europe147 as well as in several articles.148
140
Tichy, H. (1992-1993) ‘Two Recent Cases of State Succession – An Austrian Perspective’. Austrian
Journal of Public International Law, 44, 1, 117-136, at 120 [emphasis added].
141
Ibid at 120.
142
Bühler, 2001, at 314 citing Fiedler, W. (1998). ‘Entwicklungslinien im Recht der Staatensukzession’. In
G. Hafner, et al. (eds.) Liber Amicorum Professor Ignaz Seidl-Hohenveldern, at 136 [English translation by
Bühler; emphasis in the original].
143
Ibid, at 314 citing Fiedler, 1998, at 136 [emphasis in the original].
144
Ibid at 316. In the context of state succession to treaties, international law has long distinguished
between different types or categories of treaties, a phenomenon termed ‘functional differentiation’ by
Craven; Craven 2007, at 244-245.
145
Bühler, 2001, at 314-315.
146
Ibid at 314-315. Bühler considers some technical organizations such as the World Meteorological
Organization to be ‘a union of territories functionally defined’ and to therefore have operated a ‘functional
conception of the territories constituting their membership’; ibid at 310-311.
147
Eisemann, P.M. & Koskenniemi M. (eds.). (2000). State Succession: Codification Tested against the
Facts. Leiden/Boston/London: Martinus Nijhoff Publishers.
148
Koskenniemi, M. (1991). ‘The Future of Statehood’. Harvard International Law Journal, 32, 2, 397-
410; Koskenniemi, M. (1994). ‘The Wonderful Artificiality of States. American Society for International
[21]
On a conceptual level, Koskenniemi lines up with the scholars critical of ‘the ‘indivisibility’ of
state identity and continuity as an abstract topos of international law’, but he calls for a critical
approach on a more fundamental level, that is in terms of the general categories of international
law and to the ʻuniformityʼ of the category of statehood in particular.149
oskenniemi suggests a critical approach, which would ‘[…] put to question the identification of
the units of discourse (topoi) […]’ and ‘[m]ore specifically, […] engage in what could be called
the strategy of splitting topoi and displacing hierarchies.’ 150 As an example of such a specific unit
of discourse or topos, Koskenniemi looks at statehood in international law. Referring to the
notorious difficulties involved in determining the criteria for statehood, Koskenniemi proposes
that by ‘breaking statehood down into principles upon which it is constructed, a better grasp can
be had of normative problems that otherwise seem to implicate a uniform concept of statehood
[…].’151 Like Tichy and Fielder, Koskenniemi points to the failure of the traditional dichotomy of
continuity/succession to account for or capture the problems of political transformation that
appear in state practice and proposes a dissolution of the continuity/succession distinction:152
[..] much depends on what kinds of obligations (how important? owed to whom?) one
deals with and whether the justice of changed circumstances or the justice of stable
expectations should be deferred to. As a result, an entity might be held the ‘same’ in
some respects (for instance, in respect of the continued validity of state contracts and
foreign debts) and ‘different’ in other respects (for instance, in regard to political or
military alliances or membership in international organizations). In this way, statehood
appears not as an abstract, uniform status, but as a generalization from conclusions
regarding particular normative relationships.153
ut oskenniemiʼs application of the ‘strategy of splitting topoi’ to the concept of state
identity/continuity not only provides a more general theoretical framework for the concepts of
ʻpartial identityʼ and ʻfunctional splittingʼ, it also makes explicit the structural implications for the
legal concept of statehood: Statehood itself may no longer be regarded as an ‘abstract uniform
status’.154 In effect, there is no substantial conception of either statehood or state
identity/continuity, only ‘particular normative relationships’ between entities. In this sense, both
Law Proceedings, 88, 22-29; and Koskenniemi, M. (1997). ‘Hierarchy in International Law: A Sketch’.
European Journal of International Law, 8, 4, 566-582.
149
Koskenniemi, 1997, at 579-580.
150
Koskenniemi, 1997, at 579: ‘A critical approach would put to question the identification of the units of
discourse (topoi) as well as the levels being compared together with the principle of comparison, not of
course to do away with reversibility - that would indeed be impossible - but so as to reveal the complex
strategies whereby social practices ‘take on’ an apparently natural and stable outlook. ore specifically, it
would engage in what could be called the strategy of splitting topoi and displacing hierarchies.’ [Emphasis
in the original]. Koskennemi concludes, ibid at 582: ‘The strategy of splitting topoi and displacing
hierarchies focuses directly on the social construction of selfhood and otherness, principles of communal
identification and separateness, within the different modes of international law. It is an analytic device for
examining the functioning of such mechanisms, revealing hidden priorities and principles of political value.
But while the strategy sharpens the mode of control, increases the scientific rigour of exegesis and expands
the range of philosophy, it does not by itself lead to better decisions. In fact, it accepts that the making of
legal decisions is not, strictly speaking, a rule-governed activity at all. But it does not consider this a great
tragedy. Were the law merely an application of past hierarchies to present events it would undermine the
individuality of cases and impose homogeneity over difference, enshrining a bureaucratic culture of blind
obedience.’
151
Ibid at 579.
152
Ibid at 580.
153
Ibid at 580 [emphasis added].
154
Bühler, 2001, at 319.
[22]
the concept of statehood and the concept of state identity/continuity becomes relational and thus
relativist.155 As Bühler has pointed out, in view of the decentralized international system,
accepting the ultimately decisive role of the subjective factors of recognition and acceptance of a
stateʼs claim to continuity by the international community will in effect imply that each state
individually determines its position vis-à-vis the state claiming continuity.156 He observes that
such a ʻbilateralizationʼ of state identity/continuity would in effect open the possibility of ‘[..]
even contradictory conclusions of identity regarding particular bilateral relationships’ and thus a
ʻnormative relativityʼ of statehood.157
5. A Critical Appraisal of the Contemporary Conceptions of State

Identity and Continuity
The various conceptions of state identity/continuity presented here have developed as a response
to the problems posed by state practice and the general developments in the theory of
international law. The formal conception of identity as presented by Marek has been widely
criticized, both on conceptual counts and for not being in accordance with state practice.158 On a
conceptual level, Crawford for example points out that ‘[…] the existence of a state seems to be
distinct from its legal relations and certainly from its treaties.’159 Thus, Marek’s view allows little
scope for distinguishing between differences in the rights and obligations of a state at two
different points in time on the one hand, and on the other hand differences between two separate
states. Secondly, scholars like Crawford maintain that ‘[t]he rights are better referred to the entity
than the entity to the rights.’160 In other words, the possession of rights and obligations by an
entity is not a criterion for, but rather a consequence of statehood. Another conceptual criticism of
the formal conception is that because in each case the same rights and obligations exist, it is
impossible according to arek’s view to distinguish between continuity and (postulated)
universal succession, unless the category of universal succession is excluded a priori.161
Crawford argues that this is circular since questions of succession only arise after problems of
continuity and extinction have been resolved.162 This, however, seems to be a central point of
difference – can status be assumed prior to relations?
arekʼs view is further criticized for running counter to state practice, e.g. in relation to her
rejection of identity/continuity between an independent state and a dependent one. This runs
counter to several decolonization cases where the formerly dependent state continued its
international personality and remained subject to its previous rights and obligations even after its
acquisition of independence and sovereign statehood.163
While the material conception of state identity/continuity takes a fundamentally different
approach to the problem by relying on the constituent elements of statehood in their concrete
form, i.e. a specific people or territory and the socio-historical essentials pertaining to these, it has
also been the subject of criticism. Historical, linguistic, ethnic, cultural etc. criteria undeniably
155
Koskenniemi, 1997, at 580.
156
Bühler, 2001, at 319.
157
Ibid at 319.
158
See e.g. Crawford, 2007, at 670-71.
159
160
Ibid at 670.
161
See supra at 14.
162
163
See Bühler, 2001, at 12.
[23]
have an important relation to national identity and nationhood from an anthropological or

sociological point of view. Yet, scholars have also long stressed the artificial or imagined
character of nations, which are ‘the result of projection rather than the work of an authentic
national essence.’164 In the present context, we must note the practical problems relating to the
determination of the identity of social, cultural or political elements in the absence of any rule.
How are the material elements identified, by whom and how are they ‘quantified’ and made
operational?165 These questions appear to be pressing for the material approach to state
identity/continuity.
It is the main credit of the proponents of the ‘procedural approach’ to state identity/continuity to
have pointed out the deficiencies of the formal conception and to have emphasized the
importance of ‘political’ factors instead of relying on a ‘supposedly “pure” legal solution’.166
According to Crawford, treating the determination of identity/continuity as dependent on the
basic criteria for statehood in the context of claim and recognition avoids the problems raised by
the formal approach.167 However, the procedural approach has also been criticized in several
respects. Most fundamentally, critics point out that this approach maintains state identity as an
abstract status and thus assumes status as prior to the legal relationships that relate to it, which is,
it is asserted, not necessarily possible.168 By viewing the basic legal criteria for statehood as
determinative of the question of identity/continuity, Crawford may be said to move the debate
from a ‘legal personality paradigm’ to what could be termed a ‘statehood paradigm’. 169 Yet, the
use of the formal conception of statehood in its ‘abstract’ and ‘exclusionary’ form, 170 raises many
of the same problems as the use of the concept of personality (in the general sense): The basic
criteria for statehood help us determine whether a given entity is a state according to international
law, but do they help us determine whether the state is the same at two different points in time?
171
Further, it has been pointed out that not even the procedural approach with its sensitivity to
political context through the consideration of claim and recognition can fully account for the
varieties seen in state practice, especially the cases of the USSR and the SFRY.172
The theoretical responses born out of these difficulties have been termed ʻrelativistʼ or
ʻdeconstructivistʼ conceptions of state identity/continuity, because they seem to depart altogether
from the view of state identity as an abstract status discernible on the basis of criteria derived
from the constituent elements of statehood. This approach, in fact, seems to embody an ʻanti-
conceptionʼ rather than a conception of state identity/continuity. Yet, it is maintained that from a
theoretical point of view, ‘[…] identity and difference are not starting-points of legal enquiries
but its resting places.’173 In other words, the enquiry into the question of state identity/state
succession does not start with the question of ‘identity’ or ‘change’, but rather ends there.
Proponents of this view further point out that it seems to fit well with another trend in
international legal scholarship, i.e. the contention that the classical concept of sovereign statehood
is undergoing a continual erosion, and likewise the traditional ‘state-centered’ system of
164
165
166
Bühler, 2001, at 11 citing Fiedler, 1978, at 132 & 139.
167
See Crawford, 2007, at 670.
168
See e.g. Koskenniemi, 2000, at 122.
169
170
See supra at 21.
171
Craven, 1998, at 158-159.
172
Bühler, 2001, at 312-313.
173
[24]
international law.174 In this perspective, it may be argued that the splitting of state identity is
simply ‘another step towards the general ‘deconstruction’ of the concept of sovereign statehood,
which inevitably will require a fundamental restructuring of the present international system.’175
Not surprisingly many scholars remain skeptical of this new approach to the problem of state
identity/continuity. In his 1995 doctoral thesis, Oliver D rr criticizes the concepts of ‘partial
identity’ and ‘functional splitting’:
Occasional attempts at splitting the question of identity or continuity of a State and to
provide different answers for different areas of its international relations cannot convince
dogmatically [...]. It is true that, in decisions on identity, State practice may in individual
cases be based on flexible, even inconsistent criteria, depending i.a. on the political
sensitivity of a particular subject or for other reasons of political opportuneness. This
does, however, not detract from the indivisibility of the identity of a State as an abstract
topos of intemational law; as a dogmatic category it remains, as a matter of principle,
unaffected by the way in which it may be treated in practice. This is a matter of law to be
determined objectively, not one of granting a special privilege, upon which the
community of States were to decide in each individual case.176
In other words, while Dörr acknowledges the important role of political and pragmatic
considerations in determining questions of state identity/continuity, he insists that these may be
separated from a dogmatic conception of the ‘indivisibility’ of state identity/continuity .
Another scholar, Lauri Mälksoo, has pointed to some of the dilemmas presented by the
deconstructivist approach and the role of political and pragmatic considerations within a specific
category of state practice, i.e. cases involving aggression and illegal annexation.177 Mälksoo
seems to suggest that the deconstructivist approach is perhaps to be applauded for being able to
account for the role of political and pragmatist considerations observed in state practice, yet this
involves the risk of removing the question of state identity/continuity entirely from the legal
sphere – what arek called the ‘realm of objective norms’ – and thereby throwing the baby out
with the bath water.178 He notes that ‘[i]t would be an ostrich' attitude to pretend that States
approach political and historical changes – [i.a.] those involving forcible seizure of territory –
only with readymade objective, legal criteria. In revealing hypocrisies and deficiencies in the
mainstream ‘positivist’ approach, the deconstructive method enables valuable new insights
[..].’179 However, while lksoo notes the practicality of the ʻsplitting of legal statusʼ, he also
points to the difficulty inherent in coming up with formal criteria for such an endeavor.180 He
concludes that ‘[…] it seems that international legal doctrine has no other choice than to stand for
central values embedded in legal concepts’, e.g. the principle of ex injuria jus non oritur, but to
also ‘continue living with a certain gap between law and social reality.’181
174
This so-called ‘withering-away thesis’ is presented and criticized by Koskenniemi, 1994, 22-29. See
also Koskenniemi, 1991, at 407, where Koskenniemi argues that ‘[s]tatehood remains a second best –
defensible but only to the extent that there can be no general agreement about the authentic purpose of
social life.’
175
Bühler, 2001, at 317.
176
Ibid at 315 citing Dörr, O. (1995). Die Inkorporation als Tatbestand der Staaensukzession. Berlin:
Duncker & Humbolt, at 135 [English translation by Bühler; emphasis added].
177
lksoo, 2002. See also lksoo, 2003.
178
lksoo, 2002, at 108.
179
Ibid at 108.
180
Ibid at 107.
181
Ibid at 109.
[25]
Although some proponents of the deconstructivist approach acknowledge that taken to the
extreme, the suggestion of ‘multiple identities’ ignores the current perception of states as a ‘real
life essence’, it is difficult to see how the deconstructivist approach may overcome this
problem.182 Even when suggesting a relational concept of state identity/continuity, Koskenniemi
declares that the objective factors are surely relevant, only they cannot be fixed beforehand:
There is no formula to be applied by jurists. Rather, assessments about material identity and
difference come to influence – if not determine – the fate of legal relationships as it were,
‘through the back door’ by providing criteria whereby the fate of legal relationships can be
decided by states and international organizations.183 So even in turning from personality or status
to relations, the objective criteria that were found to be determinative of status or personality are
made pertinent again by the relativist approach.
6. Conclusion
Traditionally, the legal continuity of a state in light of radical political change affecting its
constituent elements has only been considered to be preserved either in virtue of a positive rule of
succession or by way of the continuing identity of the subject. The traditional distinction between
‘total’ and ‘partial’ succession has been contingent upon the ‘personality’ of the state, and
specifically its ‘identity’ or ‘continuity’, which has remained the point of differentiation between
the legal regime of ‘continuation’ and that of ‘succession’. In this way, the notion of personality
or identity has served to distinguish between the different categories or types of state succession.
As we have seen, O’Connell sought effectively to eliminate the concept of personality from the
problem of state identity, continuity and succession, as he proposed instead to base legal
continuity on a positive rule of succession. However, not all scholars accepted this approach,
indeed O’Connell himself did not appear to free himself completely from the traditional
categories of succession, which are reflective of the idea of identity. Indeed, the concept of
personality or identity continued to form the point of differentiation between the regime of legal
continuity and that of succession, although personality came to be understood, not as general
status or legal capacity, but rather as what is personal or individual about the state. However, the
concept of state identity/continuity still has no settled meaning in international legal discourse.
This paper has presented the efforts of contemporary legal scholarship to develop a substantial
conception of state identity and/or continuity. The formal conception presented by Marek, relying
on purely juridical criteria; the material conception, as proposed e.g. by Cansacchi, Mosler and
Craven, relying on the traditional elements of statehood in their material form, typically
population and territory and their historical interconnection; the procedural conception advanced
by Crawford, basing state identity/continuity mainly on the formal elements of statehood in the
context of claim, recognition and acquiescence; and finally a ‘relativist’ or ‘deconstructivist’
approach, in effect rather an anti-conception of identity/continuity, according to which the idea of
identity as an abstract status is discarded, and identity/continuity viewed as purely relational,
determined as the sum total of particular normative relationships. In a strange way, the
deconstructivist approach thus entails something akin to a return to the formal conception of state
identity/continuity – this time without the strict formal conception of the state and a focus on the
question of recognition. In other words, the main debate among the scholars may be said to have
been – and continues to be – whether the continued validity of all legal relationships is based
upon a state’s identity or vice versa.
182
183
Ibid at 159.
[26]
There is no straightforward answer to any of the questions identified in the above analysis of
these contemporary conceptions of state identity/continuity. Rather, every question raised leads to
a multitude of new questions, such as the implications of giving up the view of the state as an
abstract status and the adoption of a deconstructivist approach to the topos of statehood. Will such
an approach lead to the ‘split personality of States’ and a subsequent ‘international schizophrenia
of States’?184 Yet, the core of this approach – considering an entity new for some purposes and
identical for others – is not entirely new, and was suggested by Verzijl in 1969 when he noted
that ‘[…] it is quite possible juridically to consider a retransformed State ‘old’ for certain
purposes and ‘new’ for others’.185 We live, if not happily, then at least at peace, with gaps
between law and social reality in many areas of international law, a current example in the
context of statehood being the disputed legal status of the Palestinian Authority in international
law.
The main problem may be the added fragmentation of international law, which in view of the
decentralized international system, is likely to be the consequence of a ‘bilateralization’ of state
identity/continuity in the sense that different states and international organizations could
individually adopt their own approach to the matter.186 However, while a conception of state
identity/continuity that does not reflect state practice runs the risk of becoming entirely detached
from reality, the abstract idea of state identity/continuity as an ʻindivisibleʼ category of
international law seems to serve the important function of ordering legal reality as it provides a
framework for states to handle complex realities. As in many other areas of international law, we
may well have to live with the ‘gap’.
184
Bühler, 2001, at 315.
185
Verzijl, 1969, at 96.
186
Bühler, 2001, at 319.
[27]

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E UROPEAN S OCIETY OF

Conference Paper No. 11/2015

Conceptions of State Identity and

Christina Binder (University of Vienna)

Conceptions of State Identity and Continuity in

This paper offers an examination of the substantive conceptions of state identity/continuity

2. State Succession and the Problem of State Identity and

2.1 The Concept of State Succession

2.2 Theories of State Succession

2.3 The Concept of State Identity/Continuity

3. State Succession versus State Identity and Continuity - A Point

3.1 The Question of Personality

3.2 The Elimination of Personality?

4. Conceptions of State Identity and Continuity

4.1 A ʻFormalʼ Conception of State Identity/Continuity

4.2 A ʻMaterialʼ Conception of State Identity/Continuity

4.3 A ʻProceduralʼ Conception of State Identity/Continuity

4.4 A ʻRelativistʼ or ʻDeconstructivistʼ Conception of State

5. A Critical Appraisal of the Contemporary Conceptions of State

have an important relation to national identity and nationhood from an anthropological or

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