Nobody ever maintained that on the successor devolve all the rights and duties of his predecessor. But after stating that a succession takes place, the respective writers try to educe the consequences and to make out what rights and duties do, and what do not, devolve.
Several writers,[111] however, contest the common doctrine and maintain that a succession of International Persons never takes place. Their argument is that the rights and duties of an International Person disappear with the extinguished Person or become modified according to the modifications an International Person undergoes through losing part of its sovereignty.
[111] See Gareis, pp. 66-70, who discusses the matter with great clearness, and Liszt, § 23.
How far Succession actually takes place.
§ 81. If the real facts of life are taken into consideration, the common doctrine cannot be upheld. To say that succession takes place in such and such cases and to make out afterwards what rights and duties devolve, shows a wrong method of dealing with the problem. It is certain that no general succession takes place according to the Law of Nations. With the extinction of an International Person disappear its rights and duties as a person. But it is equally wrong to maintain that no succession whatever occurs. For nobody doubts that certain rights and duties actually and really devolve upon an International Person from its predecessor. And since this devolution takes place through the very fact of one International Person following another in the possession of State territory, there is no doubt that, as far as these devolving rights and duties are concerned, a succession of one International Person to the rights and duties of another really does take place. But no general rule can be laid down concerning all the cases in which a succession takes place. These cases must be discussed singly.
Succession in consequence of Absorption.
§ 82. When a State merges voluntarily into another State—as, for instance, Korea in 1910 did into Japan—or when a State is subjugated by another State, the latter remains one and the same International Person and the former becomes totally extinct as an International Person. No succession takes place, therefore, with regard to rights and duties of the extinct State arising either from the character of the latter as an International Person or from its purely political treaties. Thus treaties of alliance or of arbitration or of neutrality or of any other political nature fall to the ground with the extinction of the State which concluded them. They are personal treaties, and they naturally, legally, and necessarily presuppose the existence of the contracting State. But it is controversial whether treaties of commerce, extradition, and the like, of the extinct State remain valid and therefore a succession takes place. The majority of writers correctly, I think, answer the question in the negative, because such treaties, although they are non-political in a sense, possess some prominent political traits.[112]
[112] On the whole question concerning the extinction of treaties in consequence of the absorption of a State by another, see Moore, V. § 773, and below, § [548]. When, in 1910, Korea merged into Japan, the latter published a Declaration—see Martens, N.R.G. 3rd Ser. IV. p. 26—containing the following articles with regard to the treaty obligations of the extinct State of Korea:—
1. Treaties hitherto concluded by Korea with foreign Powers ceasing to be operative, Japan's existing treaties will, so far as practicable, be applied to Korea. Foreigners resident in Korea will, so far as conditions permit, enjoy the same rights and immunities as in Japan proper, and the protection of their legally acquired rights subject in all cases to the jurisdiction of Japan. The Imperial Government of Japan is ready to consent that the jurisdiction in respect of the cases actually pending in any foreign Consular Court in Korea at the time the Treaty of Annexation takes effect shall remain in such Court until final decision.
2. Independently of any conventional engagements formerly existing on the subject, the Imperial Government of Japan will for a period of ten years levy upon goods imported into Korea from foreign countries or exported from Korea to foreign countries and upon foreign vessels entering any of the open ports of Korea the same import or export duties and the same tonnage dues as under the existing schedules. The same import or export duties and tonnage dues as those to be levied upon the aforesaid goods and vessels will also for a period of ten years be applied in respect of goods imported into Korea from Japan or exported from Korea to Japan and Japanese vessels entering any of the open ports of Korea.