CYIL vol. 9 (2018)

PETR VÁLEK CYIL 9 ȍ2018Ȏ Succession of States in respect of Treaties 26 (adopted at Vienna on 23 August 1978). 27 The International Law Commission explained in its commentary that this provision deals with “territorial”, “real”, or “localized” treaties, i.e., treaties on “major matters as international boundaries, rights of transit on international waterways or over another State, the use of international rivers etc.” 28 Therefore, these localized treaties between Germany and Czechoslovakia were not affected by the dissolution of the latter and continue to be binding, in spite of the fact that the Vienna Convention applies, according to its Article 7(1), “only in respect of a succession of States which has occurred after the entry into force of the Convention” (i.e., on 6 November 1996) and that Germany is not its Party. As stated by V. Mikulka, the doctrine of international law has generally accepted (already before the adoption of the Vienna Convention) that the localized treaties remain binding on the successor State (e.g., treaties on the lease of a part of territory or port, on the right of transit etc.). 29 An “integral part” of the Decision was constituted by the Lease Agreement between the Czechoslovak Republic and the Free and Hanseatic City of Hamburg on the Lease of Areas in the Hamburg Port pursuant to Articles 363 and 364 of the Versailles Peace Treaty (signed in Hamburg on 2 November 1929) 30 that served as the legal basis of this special regime under the German domestic law. The Lease Agreement is valid for 99 years, as envisaged by the Versailles Treaty, and will expire in 2028. 31 In addition, Czechoslovakia purchased another part of the port (Peutehafen) directly from Hamburg on 6 December 1929. Based on these legal documents, the Czech Republic has been using a piece of the Hamburg Port (specifically, Moldauhafen and Saalehafen ) by its river ships coming on Elbe until the present. In spite of its connection to the Versailles Treaty, this special legal regime between Czechoslovakia and Germany has proved a “win-win situation” for both sides, since one tenth of the outgoing exports from the Hamburg port used to come from Czechoslovakia. Hamburg thus served as its “gate to the world”. 32 What happens after 2028 is yet to be decided. The first scenario for the Czech Republic is to invoke the option right (Optionsrecht) for another 50 years according to Part D of the Protocol I on Special Arrangements that were Concluded between Czechoslovak and German Government at the Issuance of Decision 26 Article 12(1) of the Vienna Convention on Succession of States in respect of Treaties (Other Territorial Regimes): “1. A succession of States does not as such affect: (a) obligations relating to the use of any territory, or to restrictions upon its use, established by a treaty for the benefit of any territory of a foreign State and considered as attaching to the territories in question; (b) rights established by a treaty for the benefit of any territory and relating to the use, or to restrictions upon the use, of any territory of a foreign State and considered as attaching to the territories in question.” 27 Published in the Czech Republic under Act No. 292/1999 Sb. 28 Draft articles on Succession of States in respect of Treaties with commentaries, Yearbook of the International Law Commission, 1974, vol. II, Part One, pp. 196-197. 29 MIKULKA, V.: Sukcese států, Teoretická studie (Succession of States, A Theoretical Study) , Prague 1987, p. 23. 30 In Czech: Nájemní smlouva mezi Československou republikou a Svobodným a Hansovním městem Hamburkem o nájem prostor v hamburském přístavě podle článků 363 a 364 mírové smlouvy Versailleské , in German: Pachtvertrag zwischen der Tschechoslowakischen Republik und der Freien und Hansestadt Hamburg über die auf Grund der Artikel 363/364 des Vertrags von Versailles zu verpachtenden Landstücke im Hamburger Hafen . 31 Since 1929, the Lease Agreement has been amended by the parties through additional protocols several times (in 1931, 1955, 1987, 1996, 2000 and 2008). 32 SPRENGEL, B.: Der Moldauhafen – ein Stück Tschechien in Hamburg, Die Welt, 17 February 2014, available at: https://www.welt.de/regionales/hamburg/article124938234/Der-Moldauhafen-ein-Stueck-Tschechien-in- Hamburg.html

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