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Citation. Int’l Ct. of Justice 1997 I.C.J. 7. (1997)

Brief Fact Summary.

Hungary (D) asserted that the enforcement of a treaty with Slovakia (P) would not be possible because of changes in circumstances.

Synopsis of Rule of Law.

A successor state will be bound to a bilateral treaty that is territorial in character and that expressly acknowledges the interests of third states.

Facts.

In 1977, Hungary (D) and Slovakia (P) agreed to build and operate a system of locks along the Danube River made up of a dam, reservoir, hydroelectric power plant and flood control improvements. This project never saw the light of the day and the two countries went through different changes in their political and economic systems beginning in 1989. Hungary (D) was the first to stop and abandon its part of the works and later give notice of termination of the treaty. In 1992 and based on international law, both countries asked the I.C.J. to decide whether Hungary (D) was entitled to suspend and subsequently abandon its part of the work, on the grounds of the doctrine of impossibility of performance.

Issue.

Will a successor state be bound to a bilateral treaty that is territorial in character and that expressly acknowledges the interests of third states?

Held.

Yes. A successor state will be bound to a bilateral treaty that is territorial in character and that expressly acknowledges the interests of third states. What is to be determined here is whether Slovakia (D) as a successor state to Czechoslovakia, is a party to the 1977 Treaty entered into between Hungary (P) and Czechoslovakia. Hungary’s (P) claim rested on the fact that the treaty ceased to be in force upon the dissolution of Czechoslovakia since as one of the party to the treaty, as “disappeared” (I.e. Czechoslovakia).
The facts that no rule of international law that provides for automatic succession to bilateral treaties on the disappearance of a party was posited by Hungary (P) and that for a bilateral treaty to continue, both the original party and that for a bilateral treaty to continue, both the original party and the successor state must expressly agree to such continuation-which did not occur here. “Treaties of a territorial character” are identified by the International Law Commission has being regarded both in traditional doctrine and modern opinion as unaffected by a succession of states and the Convention reflects this principle.
Also, the Commission has noted that treaties concerning waterways, water rights, or navigation on rivers are commonly regarded as territorial treaties. Article 12, in providing only without reference to the treaty itself, that rights and obligations of a territorial character established by a treaty are unaffected by a succession of states appears to support Hungary’s (P) position rather than Slovakia’s (D) but this formulation was devised to take account of the fact that in many cases, treaties that had established boundaries or territorial regimes were no longer in force, so that those that remained in force would nonetheless bind a successor state. Based on all these factors, the 1977 Treaty is a treaty that establishes a territorial regime within the meaning of Article 12 of the Convention, creating rights and obligations attaching to the parts of the Danube to which it relates. Accordingly, the 1977 Treaty cannot be affected by a succession of states and Slovakia (D) is bound thereto

Discussion.

Article 12(3) of the Convention stipulates “The provisions of the present article do not apply to treaty obligations of the Predecessor State providing for the establishment of foreign military bases on the territory to which the succession of States relates.” This treaty relates to military bases rather than an international waterway. Slovakia (D) would not have been bound to the treaty as a successor state. This provision makes it clear that military bases, which arguably relates to territory and constitute part of a territorial regime are not intended to be covered by the other provisions of Article 12 relating to “Other Territorial Regimes.”