EPIL_GabkovoNagymaros_Case_HungarySlovakia

Gabčíkovo-Nagymaros Case (Hungary/Slovakia)

Nico J Schrijver, Vid Prislan

Subject(s):

Environmental disputes — Rivers

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

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A. Factual Background

1 On 2 July 1993, the Republic of Hungary (‘Hungary’) and the Slovak Republic (‘Slovakia’) jointly instituted proceedings before the International Court of Justice (ICJ) in respect of a dispute concerning the Gabčíkovo-Nagymaros project .

2 The case arose out of the signature, on 16 September 1977, by Hungary and the former Czechoslovak Socialist Republic (‘Czechoslovakia’), of the Treaty concerning the Construction and Operation of the Gabčíkovo-Nagymaros System of Locks (‘1977 Treaty’), which related to the construction and operation of two series of locks on the Danube River: one at Gabčíkovo in Czechoslovak territory and the other at Nagymaros in Hungarian territory. The project , which was to take the form of a ‘joint investment’, was essentially aimed at the production of hydroelectricity, the improvement of navigation on the Danube and the protection of the areas along the banks against flooding (see also Joint Undertakings). It comprised the creation of a reservoir, the construction of a dam, a bypass canal, a barrage and two hydroelectric power plants in peak-mode operation which, together with two series of locks, were to constitute ‘a single and indivisible operational system of works’ (Art. 1 1977 Treaty). The project was to be realized through the Joint Contractual Plan which complemented the 1977 Treaty, pursuant to which Hungary would have had control of the sluices at Dunakiliti and the works at Nagymaros , and Czechoslovakia of the works at Gabčíkovo . In addition, the 1977 Treaty provided for the protection of water quality, nature and fishing interests.

3 The two countries commenced work on the project in 1978. On Hungary’s initiative, the parties first agreed, by two protocols signed on 10 October 1983, to slow down the project , and then, by a protocol signed on 6 February 1989, to accelerate it. However, as a result of domestic pressure, the Hungarian government decided on 13 May 1989 to suspend the works at Nagymaros pending completion of various scientific studies, until, at last, it decided on 27 October 1989 to abandon the works for which it was responsible. While negotiations were being held between the parties during this period, Czechoslovakia started investigating alternative solutions and, on 23 July 1991, the Slovak government decided, with the assent of the Czechoslovakian federal government, to put the Gabčíkovo project into operation by a provisional solution subsequently known as ‘Variant C’. This entailed a unilateral diversion of the Danube by Czechoslovakia on its territory, the construction of an overflow dam, and ancillary works (Unilateral Acts of States in International Law). Work on Variant C began in November 1991. In the meantime, discussions continued between the two parties, but to no avail. On 19 May 1992, the Declaration of the Government of the Republic of Hungary on the Termination of the Treaty Concluded Between the People’s Republic of Hungary and the Socialist Republic of Czechoslovakia on the Construction and Joint Operation of the Gabčíkovo-Nagymaros Barrage System (‘Declaration’) was issued, terminating the 1977 Treaty with effect from 25 May 1992 (Treaties, Termination). On 23 October 1992, Czechoslovakia, despite Hungarian protests, proceeded to dam the river.

B. History of Proceedings

4 On the same date Czechoslovakia began with the actual diversion of the Danube, Hungary unilaterally seised the ICJ with an application ‘on the Diversion of the Danube River’. However, Hungary was quite aware that the ICJ had no jurisdiction to entertain the application, and thereby Czechoslovakia also took no action. Meanwhile, owing to mediation by the Commission of the European Communities, the two parties entered into a series of interim undertakings. Pursuant to the London Agreement on the Gabčíkovo-Nagymaros project , Czechoslovakia agreed to discharge 95% of the original volume of water back to the Danube, but never honoured that agreement. Finally, on 7 April 1993, Hungary and Slovakia—the latter having become an independent State on 1 January 1993—signed the Special Agreement between the Republic of Hungary and the Slovak Republic for Submission to the International Court of Justice of the Differences between them concerning the Gabčíkovo-Nagymaros Project (‘Special

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Agreement’) and on 2 July 1993, jointly notified the Registry of the ICJ. Consequently, Hungary also notified the ICJ that its initial application was without object and had thus lapsed (International Courts and Tribunals, Discontinuance of Cases). Pursuant to Art. 2 Special Agreement, the ICJ was requested to decide, on the basis of the 1977 Treaty and the rules and principles of general international law, as well as such other treaties as the ICJ might find applicable, three questions, as well as the legal consequences arising from its answers to those questions. Art. 5 (2) Special Agreement provided that the parties would enter into negotiations on the modalities for the execution of the judgment immediately after it was rendered by the ICJ. At the same time, the parties also agreed to establish and implement, pending the ICJ’s judgment, a temporary watermanagement regime for the Danube (Art. 4 Special Agreement). For this purpose, they ultimately concluded the Agreement between the Government of the Republic of Hungary and the Government of the Slovak Republic concerning Certain Temporary Technical Measures and Discharges in the Danube and the Mosoni Branch of the Danube, which would come to an end 14 days after the judgment of the ICJ. The final judgment in the Case concerning the GabčíkovoNagymaros Project (Hungary/Slovakia) was delivered on 25 September 1997.

C. Judgment and Reasoning of the ICJ

1. Legality of the Suspension and Abandonment of Works

5 Pursuant to Art. 2 Special Agreement, the ICJ was asked to decide, first of all, whether Hungary was ‘entitled to suspend and subsequently abandon, in 1989, the works on the Nagymaros Project and on the part of the Gabčíkovo Project ’ for which it was responsible under the 1977 Treaty. At the outset, the ICJ indicated that the rules laid down in the Vienna Convention on the Law of Treaties (1969) (‘VCLT’) concerning the termination and the suspension of the operation of treaties might be considered as a codification of existing customary international law (see also Codification and Progressive Development of International Law). The ICJ also noted that a determination of whether a convention was in force, and whether it had been properly suspended or denounced, was to be made upon the basis of the law of treaties, whereas an evaluation of the extent to which a suspension or denunciation of a convention in violation of the law of treaties engaged the responsibility of the State concerned, was to be made under the law of State responsibility.

6 The ICJ rejected Hungary’s argument that, while suspending or abandoning certain works, it never suspended the application of the 1977 Treaty itself. In the ICJ’s view, the conduct of Hungary at that time could only be interpreted as an expression of its unwillingness to comply with at least some of the provisions of the 1977 Treaty, as this conduct rendered impossible the accomplishment of the system of works that the 1977 Treaty expressly described as ‘single and indivisible’.

7 The ICJ also rejected Hungary’s reliance on a ‘state of ecological necessity’ as a circumstance precluding the wrongfulness of the suspension and abandonment of works ( GabčíkovoNagymaros Case 35, 39). The ICJ noted that, when invoking a state of necessity, ‘Hungary chose to place itself…within the ambit of the law of State responsibility, thereby implying that, in the absence of such a circumstance, its conduct would have been unlawful’ ( GabčíkovoNagymaros Case 39; Necessity, State of). The ICJ considered that a state of necessity, as a ground recognized under customary international law for precluding the wrongfulness of an act not in conformity with an international obligation, could only be accepted on an exceptional basis and be invoked under certain strictly defined conditions, ie the act:

must have been occasioned by an ‘essential interest’ of the State…; that interest must have been threatened by a ‘grave and imminent peril’; the act being challenged must have been the ‘only means’ of safeguarding that interest; that act must not have ‘seriously

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impaired an essential interest’ of the State towards which the obligation existed; and the State which is the author of that act must not have ‘contributed to the occurrence of the state of necessity’. ( Gabčíkovo-Nagymaros Case 40–41)

These conditions reflected customary international law. Although the ICJ had no difficulty acknowledging that the concerns expressed by Hungary for its natural environment related to an ‘essential interest’, it considered that the perils invoked by Hungary with respect to both Nagymaros and Gabčíkovo were neither sufficiently established nor imminent in 1989, and that Hungary had available to it other means of responding to those perceived perils than the suspension and abandonment of works. In the ICJ’s view, moreover, Hungary could not have relied upon a state of necessity, had one existed in 1989, since it had contributed to its existence. By a substantial majority of 14 votes to one (Judge Herczegh dissenting), the ICJ therefore found that Hungary was not entitled to suspend and subsequently abandon in 1989 the works on the Nagymaros project and on the part of the Gabčíkovo project for which it was responsible.

2. Legality of the Provisional Solution

8 Concerning the second question, the ICJ was asked to decide whether Czechoslovakia was entitled to proceed, in November 1991, to the provisional solution and subsequently to put it into operation from October 1992. While recognizing the serious problems with which Czechoslovakia was confronted as a result of Hungary’s decision to suspend and subsequently abandon the construction of works, the ICJ could not accept Slovakia’s argument that its actual implementation of Variant C, which was as close to the original project as possible, could be justified by what Slovakia described as ‘the principle of approximate application’ ( Gabčíkovo-Nagymaros Case 51). The ICJ observed that even if such a principle existed, it could by definition only be employed within the limits of the treaty in question. Variant C did not meet this cardinal condition, since the 1977 Treaty provided for the construction of the Gabčíkovo-Nagymaros system of locks as a joint investment constituting a single and indivisible operational system of works, which by definition could not be carried out by unilateral action. In putting Variant C into operation, Czechoslovakia had thus not applied the 1977 Treaty, but rather violated certain of its express provisions, and hence, committed an internationally wrongful act.

9 The ICJ did not accept Slovakia’s defence that, when carrying out Variant C, it was acting under a duty to mitigate damages. Although this principle might have provided a basis for the calculation of damages, in the ICJ’s view it could not justify an otherwise wrongful act. Moreover, the ICJ rejected Slovakia’s alternative argument that Variant C could be justified as a countermeasure (Countermeasures). As a result of the operation of Variant C, Czechoslovakia appropriated between 80–90% of the waters of the Danube before returning them to the main bed of the river, despite the fact that the Danube is a shared international watercourse as well as an international boundary river (International Watercourses). In the ICJ’s view, by unilaterally assuming control of a shared resource and thereby depriving Hungary of its right to an equitable and reasonable share of the natural resources of the Danube, Czechoslovakia failed to respect the proportionality which was required by international law.

10 By distinguishing the actual commission of a wrongful act from the preparatory conduct which does not qualify as a wrongful act, the ICJ concluded that Czechoslovakia was entitled to proceed to the construction of Variant C in November 1991 (by nine votes to six, President Schwebel, Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Rezek dissenting), but at the same time decided that it was not entitled to put that Variant into operation in October 1992 (by 10 votes to five, Judges Oda, Koroma, Vereshchetin, Parra-Aranguren, Judge ad hoc Skubiszewski dissenting).

3. Legal Effects of Termination of Treaty

11 By the third question, the ICJ was asked to determine the legal effects of Hungary’s Declaration, on 19 May 1992, terminating the 1977 Treaty. Noting that there was neither a provision in the 1977

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Treaty regarding its termination, nor any indication that the parties intended to admit the possibility of denunciation or withdrawal, the ICJ observed that the 1977 Treaty could be terminated only on the limited grounds provided for in the VCLT. The ICJ then refuted the various defences that Hungary invoked in support of the lawfulness, and thus effectiveness, of its notification of termination of the 1977 Treaty. First, the ICJ dismissed Hungary’s reliance on the existence of a state of necessity, for had one existed, it was not a ground for the termination of the 1977 Treaty, but could only have exonerated Hungary from its responsibility arising from the treaty obligations. Second, the ICJ rejected Hungary’s invocation of a supervening impossibility of performance due to the permanent disappearance of an essential object of the 1977 Treaty, for, even if the term ‘object’ could have been possibly understood to embrace a legal regime, that regime in any event had not definitively ceased to exist. Moreover, Hungary could not have invoked impossibility of performance when this resulted from its own breach of an obligation flowing from the 1977 Treaty. Third, the ICJ could also not accept Hungary’s reliance on a fundamental change of circumstances, observing that the prevalent political conditions, the economic system and the estimated profitability of the project were not so closely linked to the object and purpose of the 1977 Treaty that they could have constituted an essential basis of the consent of the parties (Treaties, Fundamental Change of Circumstances). Furthermore, the provisions of the 1977 Treaty were designed so as to accommodate change, thus making it possible for the parties to take account of the developments in environmental knowledge. Fourth, the ICJ rejected Hungary’s invocation of a material breach of the 1977 Treaty by Czechoslovakia. The ICJ found Hungary’s Declaration terminating the 1977 Treaty premature, since Czechoslovakia had not yet acted unlawfully when constructing the works which would lead to the commencement of Variant C. The ICJ also observed that, by its own conduct, Hungary had prejudiced its right to terminate the 1977 Treaty. Finally, the ICJ rejected Hungary’s argument that the development of new norms of international environmental law precluded the performance of the 1977 Treaty. The ICJ observed that the 1977 Treaty was not static, and was open to the incorporation of newly developed norms of environmental law through agreement by the parties, as provided for in the 1977 Treaty.

12 The ICJ observed that although it had found that both Hungary and Czechoslovakia failed to comply with their obligations under the 1977 Treaty, this reciprocal wrongful conduct did not bring the 1977 Treaty to an end nor justify its termination. An opposite finding would have set a precedent with disturbing implications for treaty relations and the integrity of the rule pacta sunt servanda. By 11 votes to four (President Schwebel, Judges Herczegh, Fleischhauer, Rezek dissenting), the ICJ therefore concluded that the Declaration did not have the legal effect of terminating the 1977 Treaty and related instruments.

4. State Succession

13 Before proceeding to the determination of the legal consequences arising from its judgment, the ICJ addressed the question whether Slovakia, as successor to Czechoslovakia, became in fact a party to the 1977 Treaty, or in the alternative, whether the 1977 Treaty ceased to be in force, as a result of the dissolution of Czechoslovakia on 31 December 1992 and hence the ‘disappearance of one of the parties’ ( Gabčíkovo-Nagymaros Case 69; Czechoslovakia, Dissolution of; State Succession in Treaties). Taking into account the particular nature and character of the 1977 Treaty, the ICJ noted that the 1977 Treaty established a navigational regime for an important sector of an international waterway, thereby inescapably affecting the interests of third States. In the ICJ’s view, the 1977 Treaty had therefore to be regarded as having established a ‘territorial regime’ within the meaning of Art. 12 Vienna Convention on Succession of States in Respect of Treaties (‘VCSS-T’), which, as a rule of customary international law, could not be affected by the succession of a State (State Succession in Other Matters than Treaties). Thus, by 12 votes to three (Judges Herczegh, Fleischhauer, Rezek dissenting), the ICJ concluded that the 1977 Treaty became binding upon Slovakia on 1 January 1993.

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5. Legal Consequences

14In the second, prescriptive part of the decision, the ICJ addressed the legal consequences of its judgment for the future conduct of both parties. As of cardinal importance, the ICJ emphasized that the 1977 Treaty was still in force and consequently governed, as lex specialis, the relationship between the parties. The ICJ observed, however, that the factual situation as it had developed since 1989 should be placed within the context of the preserved and evolving treaty relationship, in order to achieve its object and purpose in so far as that was feasible. The ICJ pointed out that the parties were under a legal obligation to consider, within the context of the 1977 Treaty, in what way the multiple objectives of the 1977 Treaty could best be served, keeping in mind that each of the objectives should be fulfilled. In this regard, the project’s impact on the environment was a key issue. According to the ICJ, the current norms and standards that had been developed during the previous decades were to be taken into consideration and given proper weight, not only when States contemplated new activities but also when continuing with activities begun in the past. In this regard, the ICJ recalled, in what has become a well-known comment, the need to reconcile economic development with the protection of the environment, a need which was aptly expressed in the concept of sustainable development. For the purposes of the Gabčíkovo-Nagymaros Case, this meant that the parties together were to look afresh at the effects on the environment of the operation of the Gabčíkovo power plant. By 13 votes to two (Judges Herczegh, Fleischhauer dissenting), the ICJ concluded that Hungary and Slovakia had to negotiate in good faith (bona fide) in light of the prevailing situation, and had to take all necessary measures to ensure the achievement of the objectives of the 1977 Treaty, in accordance with such modalities as they might agree upon.

15The ICJ also observed that the rule pacta sunt servanda required the parties to find an agreed solution within the co-operative context of the 1977 Treaty. In the ICJ’s view, it was ‘the purpose of the Treaty, and the intentions of the parties in concluding it, which should prevail over its literal application’ ( Gabčíkovo-Nagymaros Case 79). The principle of good faith obliged the parties ‘to apply it in a reasonable way and in such a manner that its purpose could be realized’ (ibid). By 13 votes to two (Judges Herczegh and Fleischhauer dissenting), the ICJ considered that, unless the parties agreed otherwise, the joint operational regime of the project should be restored in accordance with the 1977 Treaty. Hence, the works constructed in Slovakia should become a jointly operated unit, while the provisional solution should be made to conform to the project . Such re-establishment of the joint regime would ‘reflect in an optimal way the concept of common utilization of shared water resources for the achievement of the several objectives mentioned in the Treaty’ ( Gabčíkovo-Nagymaros Case 80).

16Finally, the ICJ turned to the legal consequences of the internationally wrongful acts committed by both parties. By 12 votes to three (Judges Oda, Koroma, Vereshchetin dissenting), the ICJ found that, unless the parties agreed otherwise, Hungary should compensate Slovakia for the damage Slovakia had sustained on account of the suspension and abandonment of works for which Hungary was responsible, and Slovakia should compensate Hungary for the damage Hungary had sustained on account of the putting into operation of the provisional solution and its maintenance in service (Compensation). However, the ICJ observed that the issue of compensation could satisfactorily be resolved in the framework of an overall settlement if each of the parties were to renounce or cancel all financial claims and counter-claims. On the other hand, this did not apply to the settlement of accounts for the construction of the works, which, according to a majority of the judges (13 votes to two, Judges Herczegh and Fleischhauer dissenting), had to be resolved in accordance with the 1977 Treaty and related instruments. Thus, if Hungary was to share in the operation and benefits of the complex constructed in Slovakian territory, it had to pay a proportionate share of the building and running costs.

D. Declarations, Separate and Dissenting Opinions

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17To the 77 page judgment, as many as 234 pages of declarations (President Schwebel and Judge Rezek), separate (Vice-President Weeramantry, Judges Bedjaoui and Koroma) and dissenting opinions (Judges Oda, Ranjeva, Herczegh, Fleischhauer, Vereshchetin and Parra-Aranguren, and Judge ad hoc Skubiszewski) were attached.

18The issue that seems to have most divided the judges regarded the ICJ’s distinction between the construction of Variant C on the one hand, and its putting into operation on the other hand. Several judges (President Schwebel, Judges Bedjaoui, Fleischhauer, Herczegh, and Ranjeva) viewed the construction of the provisional solution as inseparable from its being put into operation, and on the whole unlawful. As explained by Judge Ranjeva, the distinction was artificial and a contradiction in terms of logic, for the construction of Variant C could not be acknowledged as lawful at the same time as the putting it into operation was declared unlawful ( GabčíkovoNagymaros Case [Dissenting Opinion Judge Ranjeva] 170). Other judges, in contrast, supported Slovakia’s entitlement to the construction and putting into operation of the provisional solution. For example, Judge Oda viewed the operation of Variant C as the only possible option for the fulfilment of the original project , and Judge Koroma regarded it a genuine attempt to implement the 1977 Treaty so as to realize its aim and objective ( Gabčíkovo-Nagymaros Case [Dissenting Opinion Judge Oda] 163; Gabčíkovo-Nagymaros Case [Separate Opinion Judge Koroma] 148). Judge Vereshchetin considered Variant C to be a lawful countermeasure, for the ICJ should have assessed the proportionality not only by reference to the volume of the water released, but also by taking into account economic, financial and environmental effects of the breach, as well as the effects of the breach on the exercise of the right to use commonly shared water resources

( Gabčíkovo-Nagymaros Case [Dissenting Opinion Judge Vereshchetin] 219–26). Judge ad hoc Skubiszewski, in turn, expressed the view that the ICJ ‘should have distinguished between, on the one hand, Czechoslovakia’s right…to execute and operate certain works on its territory and, on the other, its responsibility towards Hungary resulting from the diversion of most of the waters of the Danube into Czechoslovak territory’ ( Gabčíkovo-Nagymaros Case [Dissenting Opinion Judge Skubiszewski] 232). Depending on their views regarding the lawfulness of the provisional solution, the various judges consequently also disagreed with regard to the ICJ’s decision on compensation, as well as the legal consequences of the judgment.

19A number of separate and dissenting opinions dwelt upon the issue of the termination of the 1977 Treaty. Several judges (Schwebel, Herczegh, and Fleischhauer) concluded that Hungary was justified in terminating the 1977 Treaty, because proceeding to, and the putting into operation of, the provisional solution constituted a serious breach of the 1977 Treaty. In the opinion of Judge Fleischhauer, Hungary, as the party initially in breach, was not deprived of a right to terminate the 1977 Treaty in response to Czechoslovakia’s material breach, because international law does not condone retaliation that goes beyond the limits of proportionality ( Gabčíkovo-Nagymaros Case [Dissenting Opinion Judge Fleischhauer] 213). Judge Rezek considered the 1977 Treaty no longer in existence, since it had been abrogated by the attitude of the two parties ( GabčíkovoNagymaros Case [Declaration Judge Rezek] 86). He concluded, on the other hand, that the principle of good faith must lead to the fulfilment of reciprocal duties remaining from the 1977 Treaty ( Gabčíkovo-Nagymaros Case [Declaration Judge Rezek] 87).

20Some separate opinions further elaborated on questions that were not specifically addressed by the ICJ. Thus, the separate opinion of Vice-President Weeramantry devoted considerable attention to the principle of sustainable development and its role in balancing the competing demands of development and environmental protection ( Gabčíkovo-Nagymaros Case [Separate Opinion Judge Weeramantry] 88–95). In his view, the principle of sustainable development was more than merely a concept, but was itself a recognized principle of contemporary international law ‘by reason not only of its inescapable logical necessity, but also by reason of its wide and general acceptance by the global community’ ( Gabčíkovo-Nagymaros Case [Separate Opinion Judge Weeramantry] 95). Vice-President Weeramantry drew inferences of this from the experiences of a number of ancient irrigation civilizations. His opinion, moreover, addressed the

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importance of the continuous environmental impact assessment of a project and the question of the ‘appropriateness of the use of inter partes legal principles, such as estoppel, for the resolution’ of issues with erga omnes implications ( Gabčíkovo-Nagymaros Case [Separate Opinion Judge Weeramantry] 88; Obligations erga omnes; Estoppel). Judge Bedjaoui’s separate opinion, on the other hand, touched upon the question of applicable law and particularly the question, to what extent an ‘evolutionary interpretation’ of the 1977 Treaty could be applied ( GabčíkovoNagymaros Case [Separate Opinion Judge Bedjaoui] 123–24).

E. Execution of the Judgment

21 The ICJ’s finding that the 1977 Treaty remained in force and still governed the relationship between the two countries meant that Hungary, one way or another, had to return to the project that it had abandoned in 1989 and negotiate with Slovakia a common solution (Negotiation). Pursuant to Art. 5 (3) Special Agreement, if the parties were unable to reach an agreement within six months, either party was entitled to request that the ICJ render an additional judgment to determine the modalities for executing its judgment. With this possibility of an additional judgment looming, the parties conducted a series of negotiations and even initialled a draft Framework Agreement, which was approved by the Government of Slovakia, but eventually disavowed by Hungary. This alleged unwillingness of Hungary to implement the judgment induced Slovakia to file a request for an additional judgment on 3 September 1998, which is still pending on the docket of the ICJ. In the meanwhile, the parties have met periodically to discuss various proposals to resolve the dispute, but so far without success. Thus, the Gabčíkovo-Nagymaros project , while originally aimed at fostering co-operation and interdependence between the two neighbouring States, still remains a political, and environmental, controversy.

F. Assessment

22The Gabčíkovo-Nagymaros Case was the first dispute between two former socialist countries submitted to the ICJ. Traditionally, members of the former Soviet Bloc remained reluctant to accept the jurisdiction of the ICJ or other international tribunals capable of passing binding decisions. For the first time in its history, the ICJ also exercised its functions with regard to the obtaining of evidence at a place to which a case relates and, for that purpose, visited a number of locations along the Danube early in April 1997 (International Courts and Tribunals, Evidence).

23In addition to the novel setting and new ICJ practice, the Gabčíkovo-Nagymaros Case has had significant implications for a range of areas of international law, most notably international environmental law, the law of international watercourses, the law of treaties, the law of State responsibility and the law governing State succession, some of which had received little consideration in the ICJ’s previous jurisprudence. The wealth of particular issues that were dealt with in the judgment bears evidence of the great complexity of the Gabčíkovo-Nagymaros dispute. At the same time, it also illustrates the close relationship between the different bodies of law and the way they interact.

24In view of the numerous arguments relating to environmental issues put before the ICJ by Hungary and Slovakia, the ICJ was asked to consider, for the first time, the consequences of the legal developments in the field of environmental protection (Environment, International Protection). The most important contribution, in this regard, was the ICJ’s endorsement of sustainable development as a concept which shall be used to ‘reconcile economic development with protection of the environment’ and which, therefore, required the parties to ‘look afresh’ at the effects of the project on the environment ( Gabčíkovo-Nagymaros Case 78). Although the ICJ did not dwell upon the (legal) nature of sustainable development—which, in turn, was extensively considered by Vice-President Weeramantry in his separate opinion, where he qualified sustainable development as a recognized principle of contemporary international law—it nevertheless relied upon it as a

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basis for shaping the future conduct of Hungary and Slovakia with respect to the Danube. To what extent this will be implemented in practice depends on the actual negotiations between the parties, since, considering the provisions of the Special Agreement, the ICJ’s pronouncements on the environment remained more recommendatory than prescriptive. Apart from the concept of sustainable development, however, the ICJ did not deem it necessary to consider the status and legal implications of other environmental principles, such as the precautionary principle, the concept of environmental impact assessment or the duty of consultation, as legal obligations in the field of environmental protection (Precautionary Approach/Principle).

25The Gabčíkovo-Nagymaros Case has also had a major impact on the development of the law of watercourses. The ICJ emphasized the paramount importance of ‘equitable utilization’ as the primary principle governing the use and allocation of international freshwater resources (Equitable Utilization of Shared Resources). This principle, however, has to be set in the broader context of sustainable development.

26Furthermore, the ICJ elucidated the relationship between the law of treaties and the law of State responsibility and confirmed these two fields of law as clearly distinct in scope. The ICJ clarified the plea of necessity, clearly underlining the exceptional basis of its invocation. Particularly important in this respect has been the ICJ’s acceptance that an ‘essential interest’ of a State could include preservation of the natural environment on its territory. On the other hand, the very strict requirements laid down by the ICJ to establish a state of necessity could preclude the application of the precautionary principle, especially in circumstances of scientific uncertainty regarding environmental impacts.

27The judgment of the ICJ undoubtedly strengthened the role and legal status of the VCLT as it again declared some of its provisions, namely those concerning the termination and suspension of treaties as spelled out in Arts 60 to 62 VCLT, as a restatement of customary international law. Moreover, the Gabčíkovo-Nagymaros Case clarified other issues concerning the law of treaties, particularly as regards the plea of fundamental change of circumstances and the material breach of treaties. Most importantly, however, the ICJ took a firm stance in support of the principle of stability of treaty relationships, limiting the possibility of the unilateral denunciation of treaties to exceptional cases. By rejecting that reciprocal wrongful conduct by both parties to a bilateral treaty could lead to its unilateral termination, the ICJ emphasized the strict observation of the principle of pacta sunt servanda.

28Last but not least, the ICJ’s judgment clarified certain issues regarding the succession of States in respect to treaties. While it refrained from pronouncing on the customary law status of the automatic succession rule, the ICJ’s findings on the continuous validity of treaties establishing territorial regimes, within the meaning of Art. 12 VCSS-T, remain valuable (Treaties, Validity).

29From an overall perspective, the Gabčíkovo-Nagymaros Case clearly reflects an attempt to strike a reasonable balance between the interests of the two parties. By encouraging the two States to read the modern environmental law norms and standards into a treaty from 1977, the ICJ provided the foundations for a sustainable development regime that would accommodate the project and for the normalization of relations between Hungary and Slovakia. However, less convincing has been the ICJ’s handling of the question of preparatory actions preceding a wrongful act. As evidenced by the contrasting views of the judges expressed in their separate and dissenting opinions, the decision of the ICJ to distinguish between, on the one hand, the construction and, on the other hand, the putting into operation of Variant C, appears rather artificial and even problematic. This is especially the case considering that this aspect was decisive in dismissing Hungary’s argument on the lawfulness of its termination of the 1977 Treaty and, by the same token, inevitably determined the outcome of the analysis on a number of other issues.

Select Bibliography

From :Oxford Public InternationalLaw (htp://opil.ouplaw.com ).(c)Oxford U niversity Press,2013.AllRightsReserved.Subscriber: null;date:17 Decem ber2014

B Nagy ‘Divert or Preserve the Danube? Answers “in concrete”—A Hungarian Perspective on the Gabčíkovo-Nagymaros Dam Dispute’ (1996) 5 RECIEL 138–44.

CB Bourne ‘The Case Concerning the Gabčíkovo-Nagymaros Project : An Important Milestone in International Water Law’ (1997) 8 YIntlEnvL 6–12.

AE Boyle ‘The Gabčíkovo-Nagymaros Case: New Law in Old Bottles’ (1997) 8 YIntlEnvL 13–20.

PC de Castro ‘The Judgment in the Case Concerning the Gabčíkovo-Nagymaros Project : Positive Signs for the Evolution of International Water Law’ (1997) 8 YIntlEnvL 21– 31.

J Klabbers ‘The Substance of Form: The Case Concerning the Gabčíkovo-Nagymaros Project , Environmental Law, and the Law of Treaties’ (1997) 8 YIntlEnvL 32–40.

S Stec and GE Eckstein ‘Of Solemn Oaths and Obligations: The Environmental Impact of the ICJ’s Decision in the Case Concerning the Gabčíkovo-Nagymaros Project ’ (1997) 8 YIntlEnvL 41–50.

A A-Khavari and DR Rothwell ‘The ICJ and the Danube Dam Case: A Missed Opportunity for International Environmental Law?’ (1998) 22 MelbULRev 507–36.

PHF Bekker ‘ Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment’ (1998) 92 AJIL 273–78.

M Dixon ‘The Danube Dams and International Law’ (1998) 57 CLJ 1–4.

M Fitzmaurice ‘The Gabčíkovo-Nagymaros Case: The Law of Treaties’ (1998) 11 LJIL 321–44.

J Klabbers ‘Cat on a Hot Tin Roof: The World Court, State Succession, and the GabčíkovoNagymaros Case’ (1998) 11 LJIL 345–55.

JG Lammers ‘The Gabčíkovo-Nagymaros Case Seen in Particular from the Perspective of the Law of International Watercourses and the Protection of the Environment’ (1998) 11 LJIL 287–320.

R Lefeber ‘The Gabčíkovo-Nagymaros Project and the Law of State Responsibility’ (1998) 11 LJIL 609–23.

O McIntyre ‘Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia): International Court of Justice, The Hague, 25 September 1997’ (1998) 10 JEL 79–91.

PN Okowa ‘Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia)’ (1998) 47 ICLQ 688–97.

D Reichert-Facilides ‘Down the Danube: The Vienna Convention on the Law of Treaties and the Case Concerning the Gabčíkovo-Nagymaros Project ’ (1998) 47 ICLQ 837–54.

K Wellens ‘The Court’s Judgment in the Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia): Some Preliminary Reflections’ in K Wellens (ed) International Law: Theory and Practice: Essays in Honour of Eric Suy (Nijhoff The Hague 1998) 765–99. EL Preiss ‘The International Obligation to Conduct an Environmental Impact Assessment: The ICJ Case Concerning the Gabčíkovo-Nagymaros Project ’ (1999) 7 NYUEnvtlLJ 307–51. S Stec ‘Do Two Wrongs Make a Right? Adjudicating Sustainable Development in the Danube Dam Case’ (1999) 29 Golden Gate University Law Review 317–97.

D Shelton ‘A Step Forward in the Gabčíkovo-Nagymaros Case’ (2001) 31 EnvtlPolyL 222. SM Schwebel ‘The Judgment of the International Court of Justice in the Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia)’ in International Bureau of the Permanent Court of Arbitration (ed) Resolution of International Water Disputes (Kluwer The Hague 2003) 247–58.

Select Documents

Case concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment)

[1997] ICJ Rep 7.

Declaration of the Government of the Republic of Hungary on the Termination of the Treaty Concluded Between the People’s Republic of Hungary and the Socialist Republic of

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