An Uncharted Question of State Succession: Are New States Automatically Bound by the BITs Concluded by Predecessor States Before Independence?

Abstract

This article examines whether or not a new State is automatically bound by the BITs that have been concluded by the predecessor State before independence. It criticizes the different solutions adopted under the 1978 Vienna Convention for specific types of State succession. In my view, bilateral treaties do not automatically continue to be in force at the date of succession unless both the new State and the other State party agree to such continuation. The present article examines 17 cases in the context of the break-up of Czechoslovakia, Yugoslavia and the USSR. Specifically, the article critically examines the reasoning of the majority of tribunals deciding cases in the context of the dissolution of Czechoslovakia which have barely mentioned at all the relevant succession issues. This omission can, however, be explained by the fact that the respondent State in these cases did not challenge the jurisdiction of the tribunal on this ground.