Since you're already quite interested in international law and international affairs if you're taking the time to visit this blog, you've probably already noticed that the world has recently seen quite a bit of dramatic, often violent civil unrest. That's not to say that this unrest is new, different, or abnormal but that it seems to have been happening in a lot of places in recent weeks.
Perhaps the most prominent example of such unrest - or at least the one that has receiving the most media attention - has been that of Tunisia. Long ruled by dictator Zine El Abidine Ben Ali, the country has been racked by violent protests over a number of different issues for some time now. Though Ben Ali has since fled to Saudi Arabia, the country he left behind is anything but stable. Indeed, the unrest there has helped embolden and inspire protests in other Middle-Eastern countries such as Jordan, Yemen, and Egypt. Along those same lines, Albania's future as a possible member of the European Union has been thrown into doubt as similar chaos rages throughout that country. Though the protests there do not appear to have been inspired by the chaos in Tunisia - stemming instead from a still-disputed 2009 election - they nevertheless set the stage for many of the same international law issues to arise.
What are those issues? Setting aside specific human rights issues, violent civil unrest and the overthrow of governments always highlight one major international law principle - the distinction between a change in state and a change in government. This distinction helps determine what international law obligations entered into by the previous government a post-revolutionary state retains. Indeed, the scope of a state's international legal obligations will vary dramatically depending on the type of transition/change that has occurred - whether the change was one in state or one in government.
So how to distinguish the two? Though by no means THE authoritative source on the subject, the Second Circuit described a "change in government" in the following terms in Lehigh Valley Railroad Co. v. State of Russia, 21 F.2d 396, 401 (2d Cir. 1927):
Changes in the government or the internal policy of a state do not as a rule affect its position in international law. A monarchy may be transformed into a republic, or a republic into a monarchy; absolute principles may be substituted for constitutional, or the reverse; but, though the government changes, the nation remains, with rights and obligations unimpaired.
That definition jives pretty well with the rest of international law. So long as the change is merely an internal one, no matter the forces behind it, no matter how drastically the new government differs from the old one, the change is a change in government and the new regime inherits the old rights, privileges, and obligations of the ousted government. For our purposes here, that would cover the newly-installed leadership in Tunisia, as well as any new governments that may come to exist in any of the other nations mentioned.
A change in state would be quite different. The Restatement (Third) of Foreign Relations Law § 208(b) refers to states that have experienced such a change as "successor states." It defines the term as covering situations where:
[A] state wholly absorbs another state, that takes over part of the territory of another state, that becomes independent of another state of which it had formed a part, or that arises because of the dismemberment of the state of which it had been a part.
What effect does a change of state have have? Well, it all depends on what type of succession/change occurred. Back to the same Restatement, this time § 210:
(1) When part of the territory of a state becomes territory of another state, the international agreements of the predecessor state cease to have effect in respect of that territory and the international agreements of the successor state come into force there.
(2) When a state is absorbed by another state, the international agreements of the absorbed state are terminated and the international agreements of the absorbing state become applicable to the territory of the absorbed state.
(3) When part of a state becomes a new state, the new state does not succeed to the international agreements to which the predecessor state was party, unless, expressly or by implication, it accepts such agreements and the other party or parties thereto agree or acquiesce.
(4) Pre-existing boundary and other territorial agreements continue to be binding notwithstanding Subsections (1)-(3).
While this doctrine is certainly debatable in international law circles, it likely represents the American view and the rule courts in this country would apply.
