Referendum on the Independence of Scotland ... - Gov.uk

Part III:
Principles of state continuity and succession
16. The frst question concerns whether the rUK would be treated as the continuator state
of the UK and Scotland as a successor state. The second question is one of state
succession and depends on the answer to the frst.
17. It will initially be helpful to explain the concepts of state continuity and state succession.
In international law there is a fundamental distinction between the two.
18. The term ‘state continuity’ denotes cases where the same state continues to exist despite
changes in its territory and population. The central case of continuity is where a state
retains substantially the same territory and the same structure or system of government
over a certain period. In other cases it can be harder to determine state continuity.
19. The notion of state continuity has been criticised as misleading, as overly general or as
giving a false impression of objectivity. Because there are no well-defned criteria for the
extinction of states, subjective factors such as a state’s own claim to continuity may be
pertinent or even determinative. But the notion is well established and arguably even
logically required by the distinction between states and governments. This advice will
assume the existence of the notion of state continuity but will consider below, in light of
state practice, the relevance of subjective factors such as state claims and recognition. 2
20. The term ‘state succession’ refers to the complex of legal issues that arise when there is
a change of sovereignty over a territory. The Vienna Convention on Succession of States
in Respect of Treaties and the Vienna Convention on Succession of States in Respect of
State Property, Archives and Debts defne ‘succession of States’ as ‘the replacement of
one State by another in the responsibility for the international relations of territory’. 3
21. The law of state succession does not purport to regulate the process of the transfer
of sovereignty or the creation of statehood. It is premised on the assumption that a
change of sovereignty has occurred in accordance with international law, but otherwise
applies regardless of how that change of sovereignty occurs. What it deals with are the
consequences of a change of sovereignty in felds such as succession to treaties, state
property, archives and debts and the nationality of natural or legal persons.
2 See Crawford J, The Creation of States in International Law (2nd edn, 2006) 667–72; Crawford J, Brownlie’s
Principles of Public International Law (8th edn, 2012) 426–7.
3 Vienna Convention on Succession of States in Respect of Treaties, 23 August 1978, 1946 UNTS 3, Art 2(1)(b);
Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, 7 April 1983,
(1983) 24 ILM 306, Art 2(1)(a).