Go To
Chapter 12, Section 12.2, NOTES &
QUESTIONS, after Gabcikovo-Nagymaros reference to
this web page.CASE CONCERNING THE GABCÍKOVO-NAGYMAROS PROJECT
International Court of Justice General List No. 92
(Hungary v. Slovakia Judgment of 25 September 1997)(ICJ full version: click here)
--------------------------------------------------------------------------------------
[Author's Note: This case involves a dispute between Hungary and Slovakia concerning the Gabcíkovo-Nagymaros Project. The initial 1977 treaty contemplated construction and operation of dams on the river Danube for the production of electricity, flood control, and improvement of navigation.
In 1989, Hungary suspended and subsequently abandoned completion of the project. Hungary alleged that completion would entail grave risks to the Hungarian environment and Budapest's water supply. Slovakia denied these allegations, and insisted that Hungary carry out its treaty obligations. Slovakia planned, and subsequently put into operation, an alternative project (Variant C) on Slovak territory. Its operation adversely impacted Hungary's access to the water of the Danube.
The portion of this case, dealing with the suspension and termination of treaties, is set forth in § 8.2 of the course textbook. Italics have been added to certain words and phrases within the Court's opinion. Most citations to authority have been deleted.]
[Court's Opinion.] THE
COURT composed as above, after deliberation, delivers the following
Judgment:
...
(1) The Court is requested to decide ...
(a) whether the Republic of Hungary was entitled to suspend and subsequently abandon, in 1989, the works on the Nagymaros Project and on the part of the Gabcíkovo Project for which the Treaty attributed responsibility to the Republic of Hungary;
(b) whether the Czech and Slovak Federal Republic was entitled to proceed, in November 1991, to the "provisional solution" and to put into operation from October 1992 this system ... (damming up of the Danube at river kilometre 1851.7 on Czechoslovak territory, with resulting consequences on water and navigation course);
...
15. The present case arose out of the signature, on 16 September
1977, by the Hungarian People's Republic and the Czechoslovak
People's Republic, of a treaty "concerning the construction
and operation of the Gabcíkovo-Nagymaros System of Locks"
(hereinafter called the "1977 Treaty"). The names of
the two contracting States have varied over the years; hereinafter
they will be referred to as Hungary and Czechoslovakia. The 1977
Treaty entered into force on 30 June 1978.
It provides for the construction and operation of a System of Locks by the parties as a "joint investment". According to its Preamble, the barrage system [an artificial dam, placed on the Danube River, to increase its depth and divert a portion for irrigation/navigation] was designed to attain "the broad utilization of the natural resources of the Bratislava-Budapest section of the Danube river for the development of water resources, energy, transport, agriculture and other sectors of the national economy of the Contracting Parties". The joint investment was thus essentially aimed at the production of hydroelectricity, the improvement of navigation on the relevant section of the Danube and the protection of the areas along the banks against flooding. At the same time, by the terms of the Treaty, the contracting parties undertook to ensure that the quality of water in the Danube was not impaired as a result of the Project, and that compliance with the obligations for the protection of nature arising in connection with the construction and operation of the System of Locks would be observed.
16. The Danube is the second longest river in Europe, flowing along or across the borders of nine countries in its 2,860-kilometre course from the Black Forest eastwards to the Black Sea. For 142 kilometres, it forms the boundary between Slovakia and Hungary. The sector with which this case is concerned is a stretch of approximately 200 kilometres, between Bratislava in Slovakia and Budapest in Hungary. Below Bratislava, the river gradient decreases markedly, creating an alluvial plain of gravel and sand sediment. This plain is delimited to the north-east, in Slovak territory, by the Malý Danube and to the south-west, in Hungarian territory, by the Mosoni Danube. The boundary between the two States is constituted, in the major part of that region, by the main channel of the river. ...
17. The Danube has always played a vital part in the commercial and economic development of its riparian States, and has underlined and reinforced their interdependence, making international co-operation essential. Improvements to the navigation channel have enabled the Danube, now linked by canal to the Main and thence to the Rhine, to become an important navigational artery connecting the North Sea to the Black Sea. In the stretch of river to which the case relates, flood protection measures have been constructed over the centuries, farming and forestry practised, and, more recently, there has been an increase in population and industrial activity in the area. The cumulative effects on the river and on the environment of various human activities over the years have not all been favourable, particularly for the water regime.
Only by international co-operation could action be taken to
alleviate these problems. Water management projects along the
Danube have frequently sought to combine navigational improvements
and flood protection with the production of electricity through
hydroelectric
power plants. The potential of the Danube for the production of
hydroelectric power has been extensively exploited by some riparian
States. The history of attempts to harness the potential of the
particular stretch of the river at issue in these proceedings
extends over a 25-year period culminating in the signature of
the 1977 Treaty.
18. Article 1, paragraph 1, of the 1977 Treaty describes the
principal works to be constructed in pursuance of the Project.
It provided for the building of two series of locks, one at Gabcíkovo
(in Czechoslovak territory) and the other at Nagymaros (in Hungarian
territory), to constitute "a single and indivisible operational
system of works".... The Court will subsequently have occasion
to revert in more detail to those works, which were to comprise,
inter alia, a reservoir upstream of Dunakiliti, in Hungarian and
Czechoslovak territory; a dam at Dunakiliti, in Hungarian territory;
a bypass canal, in Czechoslovak territory, on which was to be
constructed the Gabcíkovo System of Locks (together with
a hydroelectric power plant with an installed capacity of 720
megawatts (MW)); the deepening of the bed of the Danube downstream
of the place at which the bypass canal was to rejoin the old bed
of the river; a reinforcement of flood-control works along the
Danube upstream of Nagymaros; the Nagymaros System of Locks, in
Hungarian territory (with a hydroelectric power plant of a capacity
of 158 MW); and the deepening of the bed of the Danube downstream.
...
20. Thus, the Project was to have taken the form of an integrated
joint project with the two contracting parties on an equal footing
in respect of the financing, construction and operation of the
works. Its single and indivisible nature was to have been realized
through the Joint Contractual Plan which complemented the Treaty.
In particular, Hungary would have had control of the sluices [artificial
water passages, fitted with flow controls] at Dunakiliti and the
works at Nagymaros, whereas Czechoslovakia would have had control
of the works at Gabcíkovo.
...
22. [After an agreed upon delay, and as] a result of intense criticism
which the Project had generated in Hungary, the Hungarian Government
decided on 13 May 1989 to suspend the works at Nagymaros pending
the completion of various studies which the competent authorities
were to finish before 31 July 1989. On 21 July 1989, the Hungarian
Government extended the suspension of the works at Nagymaros until
31 October 1989, and, in addition, suspended the works at Dunakiliti
until the same date. Lastly, on 27 October 1989, Hungary decided
to abandon the works at Nagymaros and to maintain the status quo
at Dunakiliti.
23. During this period, negotiations were being held between
the parties. Czechoslovakia also started investigating alternative
solutions. One of them, subsequently known as "Variant C",
entailed a unilateral diversion of the Danube by Czechoslovakia
on its territory some 10
kilometres upstream of Dunakiliti.... In its final stage, Variant
C included the construction at Cunovo of an overflow dam and a
levee linking that dam to the south bank of the bypass canal.
The corresponding reservoir was to have a smaller surface area
and provide approximately 30 per cent less storage than the reservoir
initially contemplated. Provision was made for ancillary
works, namely: an intake structure to supply the Mosoni Danube;
a weir to enable, inter alia, floodwater to be directed along
the old bed of the Danube; an auxiliary shiplock; and two hydroelectric
power plants (one capable of an annual production of 4 GWh on
the Mosoni Danube, and the other with a production of 174 GWh
on the old bed of the Danube). The supply of water to the side-arms
of the Danube on the Czechoslovak bank was to be secured by means
of two intake structures in the bypass canal at Dobrohošt'
and Gabcíkovo. A solution was to be found for the Hungarian
bank. Moreover, the question of the deepening of the bed of the
Danube at the confluence of the bypass canal and the old bed of
the river remained outstanding.
On 23 July 1991, the Slovak Government decided "to begin,
in September 1991, construction to put the Gabcíkovo Project
into operation by the provisional solution". That decision
was endorsed by the Federal Czechoslovak Government on 25 July.
Work on Variant C began in November 1991. Discussions continued
between the two parties but to no avail, and, on 19 May 1992,
the Hungarian Government transmitted to the Czechoslovak Government
a Note Verbale terminating the 1977 Treaty with effect from 25
May 1992. On 15 October 1992, Czechoslovakia began work to enable
the Danube to be closed and, starting on 23 October, proceeded
to the damming of the river.
...
24. ... In the meanwhile, the Commission of the European Communities
had offered to mediate and, during a meeting of the two parties
with the Commission held in London on 28 October 1992, the parties
entered into a series of interim undertakings. They principally
agreed that the dispute would be submitted to the International
Court of Justice, that a tripartite fact-finding mission should
report on Variant C not later than 31 October, and that a tripartite
group of independent experts would submit suggestions as to emergency
measures to be taken.
25. ...
According to Article 4 of the Special Agreement, "The
Parties [agreed] that, pending the final Judgment of the Court,
they [would] establish and implement a temporary water management
régime for the Danube." However, this régime
could not easily be settled. The filling of the
Cunovo dam [in the Slovak Republic] had rapidly led to a major
reduction in the flow and in the
level of the downstream waters in the old bed of the Danube as
well as in the side-arms of the river. On 26 August 1993, Hungary
and Slovakia reached agreement on the setting up of a tripartite
group of experts (one expert designated by each party and three
independent experts
designated by the Commission of the European Communities)
"In order to provide reliable and undisputed data on the most important effects of the current water discharge and the remedial measures already undertaken as well as to make recommendations for appropriate measures."
...
27. The Court will now turn to a consideration of the questions
submitted by the Parties. In terms of Article 2, paragraph 1 (a),
of the Special Agreement, the Court is requested to decide first
"whether the Republic of Hungary was entitled to suspend and subsequently abandon, in 1989, the works on the Nagymaros Project and on the part of the Gabcíkovo Project for which the Treaty attributed responsibility to the Republic of Hungary".
...
32. In the wake of the profound political and economic changes
which occurred at this time in central Europe, the Gabcíkovo-Nagymaros
Project was the object, in Czechoslovakia and more particularly
in Hungary, of increasing apprehension, both within a section
of public opinion and in some scientific circles. The uncertainties
not only about the economic viability of the Project, but also,
and more so, as to the guarantees it offered for preservation
of the environment, engendered a climate of growing concern and
opposition with regard to the Project.
...
38. During winter 1989-1990, the political situation in Czechoslovakia
and Hungary alike was transformed, and the new Governments were
confronted with many new problems.
In spring 1990, the new Hungarian Government, in presenting its National Renewal Programme, announced that the whole of the Gabcíkovo-Nagymaros Project was a "mistake" and that it would initiate negotiations as soon as possible with the Czechoslovak Government "on remedying and sharing the damages". On 20 December 1990, the Hungarian Government adopted a resolution for the opening of negotiations with Czechoslovakia on the termination of the Treaty by mutual consent and the conclusion of an agreement addressing the consequences of the termination. On 15 February 1991, the Hungarian Plenipotentiary transmitted a draft agreement along those lines to his Czechoslovak counterpart.
On the same day, the Czechoslovak President declared that the Gabcíkovo-Nagymaros Project constituted a "totalitarian, gigomaniac monument which is against nature", while emphasizing that "the problem [was] that [the Gabcíkovo power plant] [had] already been built". For his part, the Czechoslovak Minister of the Environment stated, in a speech given to Hungarian parliamentary committees on 11 September 1991, that "the G/N Project [was] an old, obsolete one", but that, if there were "many reasons to change, modify the treaty ... it [was] not acceptable to cancel the treaty ... and negotiate later on".
During the ensuing period, Hungary refrained from completing
the work for which it was still responsible at Dunakiliti. Yet
it continued to maintain the structures it had already built and,
at the end of 1991, completed the works relating to the tailrace
canal of the bypass canal assigned to it under Article 5, paragraph
5 (b), of the 1977 Treaty.
...
40. Throughout the proceedings, Hungary contended that, although
it did suspend or abandon certain works, on the contrary, it never
suspended the application of the 1977 Treaty itself. To justify
its conduct, it relied essentially on a "state of ecological
necessity".
Hungary contended that the various installations in the Gabcíkovo-Nagymaros
System of Locks had been designed to enable the Gabcíkovo
power plant to operate in peak mode. Water would only have come
through the plant twice each day, at times of peak power demand.
Operation in peak mode required the vast expanse (60 km2) of the
planned reservoir at Dunakiliti, as well as the Nagymaros dam,
which was to alleviate the tidal effects and reduce the variation
in the
water level downstream of Gabcíkovo. Such a system, considered
to be more economically profitable than using run-of-the-river
plants, carried ecological risks which it found unacceptable.
According to Hungary, the principal ecological dangers which
would have been caused by this system were as follows. At Gabcíkovo/Dunakiliti,
under the original Project, as specified in the
Joint Contractual Plan, the residual discharge into the old bed
of the Danube was limited to 50 m3/s, in addition to the water
provided to the system of side-arms. That volume could be increased
to 200 m3/s during the growing season. Additional discharges,
and in particular a number of artificial floods, could also be
effected, at an unspecified rate. In these circumstances, the
groundwater level would have fallen in most of the Szigetköz.
Furthermore, the groundwater would then no longer have been supplied
by the Danube—which, on the contrary, would have acted as
a drain—but by the reservoir of stagnant water at Dunakiliti
and the side-arms which would have become silted up. In the long
term, the quality of water would have been seriously impaired.
As for the surface water, risks of eutrophication would have arisen,
particularly in the reservoir; instead of the old Danube there
would have been a river choked with sand, where only a relative
trickle of water would have flowed. The network of arms would
have been for the most part cut off from the principal bed. The
fluvial fauna and flora, like those in the alluvial plains, would
have been condemned to extinction.
As for Nagymaros, Hungary argued that, if that dam had been
built, the bed of the Danube upstream would have silted up and,
consequently, the quality of the water collected in the bank-filtered
wells would have deteriorated in this sector. What is more, the
operation of the Gabcíkovo power plant in peak mode would
have occasioned significant daily variations in the water level
in the reservoir upstream, which would have constituted a threat
to aquatic habitats in particular. Furthermore, the construction
and operation of the Nagymaros dam would have
caused the erosion of the riverbed downstream, along Szentendre
Island. The water level of the river would therefore have fallen
in this section and the yield of the bank-filtered wells providing
two-thirds of the water supply of the city of Budapest would have
appreciably diminished. The filter layer would also have shrunk
or perhaps even disappeared, and fine sediments would have been
deposited in certain pockets in the river. For this twofold reason,
the quality of the infiltrating water would have been severely
jeopardized.
From all these predictions, in support of which it quoted a
variety of scientific studies, Hungary concluded that a "state
of ecological necessity" did indeed exist in 1989.
...
44. In the course of the proceedings, Slovakia argued at length
that the state of necessity upon which Hungary relied did not
constitute a reason for the suspension of a treaty obligation
recognized by the law of treaties. At the same time, it cast doubt
upon whether "ecological
necessity" or "ecological risk" could, in relation
to the law of State responsibility, constitute a circumstance
precluding the wrongfulness of an act.
In any event, Slovakia denied that there had been any kind
of "ecological state of necessity" in this case either
in 1989 or subsequently. It invoked the authority of various scientific
studies when it claimed that Hungary had given an exaggeratedly
pessimistic description of the situation. Slovakia did not, of
course, deny that ecological problems could have arisen. However,
it asserted that they could to a large extent have been remedied.
It accordingly stressed that no agreement had been reached with
respect to the modalities of operation of the Gabcíkovo
power plant in peak mode, and claimed that the apprehensions of
Hungary related only to operating conditions of an extreme kind.
In the same way, it contended that the original Project had undergone
various modifications since 1977 and that it would have been possible
to modify it even further, for example with respect to the discharge
of water reserved for the old bed of the Danube, or the supply
of water to the side-arms by means of underwater weirs.
...
49. The Court will now consider the question of whether there
was, in 1989, a state of necessity which would have permitted
Hungary, without incurring international responsibility, to suspend
and abandon works that it was committed to perform in accordance
with the 1977 Treaty and related instruments.
...
53. The Court has no difficulty in acknowledging that the concerns
expressed by Hungary for its natural environment in the region
affected by the Gabcíkovo-Nagymaros Project related to
an "essential interest" of that State, within the meaning
given to that expression in Article 33 of
the Draft of the International Law Commission.
The Commission, in its Commentary, indicated that one should not, in that context, reduce an "essential interest" to a matter only of the "existence" of the State, and that the whole question was, ultimately, to be judged in the light of the particular case; at the same time, it included among the situations that could occasion a state of necessity, "a grave danger to ... the ecological preservation of all or some of [the] territory [of a State]"; and specified, with reference to State practice, that "It is primarily in the last two decades that safeguarding the ecological balance has come to be considered an 'essential interest' of all States."
The Court recalls that it has recently had occasion to stress, in the following terms, the great significance that it attaches to respect for the environment, not only for States but also for the whole of mankind:
"the environment is not an abstraction but represents the living space,
the quality of life and the very health of human beings, including
generations unborn. The existence of the general obligation of States to
ensure that activities within their jurisdiction and control respect the
environment of other States or of areas beyond national control is now
part of the corpus of international law relating to the environment."
(Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,
I.C.J. Reports 1996, pp. 241-242, para. 29.)
54. The verification of the existence, in 1989, of the "peril" invoked by Hungary, of its "grave and imminent" nature, as well as of the absence of any "means" to respond to it, other than the measures taken by Hungary to suspend and abandon the works, are all complex processes.
As the Court has already indicated, Hungary on several occasions
expressed, in 1989, its "uncertainties" as to the ecological
impact of putting in place the Gabcíkovo-Nagymaros
barrage system, which is why it asked insistently for new scientific
studies to be carried out.
The Court considers, however, that, serious though these uncertainties might have been they could not, alone, establish the objective existence of a "peril" in the sense of a component element of a state of necessity. The word "peril" certainly evokes the idea of "risk"; that is precisely what distinguishes "peril" from material damage. But a state of necessity could not exist without a "peril" duly established at the relevant point in time; the mere apprehension of a possible "peril" could not suffice in that respect. It could moreover hardly be otherwise, when the "peril" constituting the state of necessity has at the same time to be "grave" and "imminent".
"Imminence" is synonymous with "immediacy" or "proximity" and goes far beyond the concept of "possibility". As the International Law Commission emphasized in its commentary, the "extremely grave and imminent" peril must "have been a threat to the interest at the actual time". That does not exclude, in the view of the Court, that a "peril" appearing in the long term might be held to be "imminent" as soon as it is established, at the relevant point in time, that the realization of that peril, however far off it might be, is not thereby any less certain and inevitable.
The Hungarian argument on the state of necessity could not convince the Court unless it was at least proven that a real, "grave" and "imminent" "peril" existed in 1989 and that the measures taken by Hungary were the only possible response to it.
Both Parties have placed on record an impressive amount of scientific material aimed at reinforcing their respective arguments. The Court has given most careful attention to this material, in which the Parties have developed their opposing views as to the ecological consequences of the Project. It concludes, however, that, as will be shown below, it is not necessary ... to determine which of those points of view is scientifically better founded.
55. The Court will begin by considering the situation at Nagymaros. As has already been mentioned (see paragraph 40 above), Hungary maintained that, if the works at Nagymaros had been carried out as planned, the environment—and in particular the drinking water resources—in the area would have been exposed to serious dangers onaccount of problems linked to the upstream reservoir on the one hand and, on the other, the risks of erosion of the riverbed downstream.
The Court notes that the dangers ascribed to the upstream reservoir
were mostly of a long-term nature and, above all, that they remained
uncertain. Even though the Joint Contractual Plan envisaged that
the Gabcíkovo power plant would "mainly operate in
peak-load time and continuously during high water", the final
rules of operation had not yet been determined...; however, any
dangers associated with the putting into service of the Nagymaros
portion of the
Project would have been closely linked to the extent to which
it was operated in peak mode and to the modalities of such operation.
It follows that, even if it could have been established—which,
in the Court's appreciation of the evidence before it, was not
the case—that the reservoir would ultimately have constituted
a "grave peril" for the environment in the area, one
would be bound to conclude that the peril was not "imminent"
at the time at which Hungary suspended and then abandoned the
works relating to the dam.
With regard to the lowering of the riverbed downstream of the Nagymaros dam, the danger could have appeared at once more serious and more pressing, in so far as it was the supply of drinking water to the city of Budapest which would have been affected. The Court would however point out that the bed of the Danube in the vicinity of Szentendre had already been deepened prior to 1980 in order to extract building materials, and that the river had from that time attained, in that sector, the depth required by the 1977 Treaty. The peril invoked by Hungary had thus already materialized to a large extent for a number of years, so that it could not, in 1989, represent a peril arising entirely out of the project. The Court would stress, however, that, even supposing, as Hungary maintained, that the construction and operation of the dam would have created serious risks, Hungary had means available to it, other than the suspension and abandonment of the works, of responding to that situation. It could for example have proceeded regularly to discharge gravel into the river downstream of the dam. It could likewise, if necessary, have supplied Budapest with drinking water by processing the river water in an appropriate manner. The two Parties expressly recognized that that possibility remained open even though—and this is not determinative of the state of necessity—the purification of the river water, like the other measures envisaged, clearly would have been a more costly technique.
56. The Court now comes to the Gabcíkovo sector. It will recall that Hungary's concerns in this sector related on the one hand to the quality of the surface water in the Dunakiliti reservoir, with its effects on the quality of the groundwater in the region, and on the other hand, more generally, to the level, movement and quality of both the surface water and the groundwater in the whole of the Szigetköz, with their effects on the fauna and flora in the alluvial plain of the Danube (see paragraph 40 above).
Whether in relation to the Dunakiliti site or to the whole of the Szigetköz, the Court finds here again, that the peril claimed by Hungary was to be considered in the long term, and, more importantly, remained uncertain. As Hungary itself acknowledges, the damage that it apprehended had primarily to be the result of some relatively slow natural processes, the effects of which could not easily be assessed.
Even if the works were more advanced in this sector than at Nagymaros, they had not been completed in July 1989 and ... Hungary expressly undertook to carry on with them, early in June 1989. The report dated 23 June 1989 by the ad hoc Committee of the Hungarian Academy of Sciences ... does not express any awareness of an authenticated peril—even in the form of a definite peril, whose realization would have been inevitable in the long term. ...
The report concludes as follows:
"It can be stated, that the environmental, ecological and water quality
impacts were not taken into account properly during the design and
construction period until today. Because of the complexity of the
ecological processes and lack of the measured data and the relevant
calculations the environmental impacts cannot be evaluated.The data of the monitoring system newly operating on a very limited
area are not enough to forecast the impacts probably occurring over a
longer term. In order to widen and to make the data more frequent a
further multi-year examination is necessary to decrease the further
degradation of the water quality playing a dominant role in this question.
The expected water quality influences equally the aquatic ecosystems,
the soils and the recreational and tourist land-use."
The Court also notes that, in these proceedings, Hungary acknowledged that, as a general rule, the quality of the Danube waters had improved over the past 20 years, even if those waters remained subject to hypertrophic conditions.
However "grave" it might have been, it would accordingly
have been difficult, in the light of what is said above, to see
the alleged peril as sufficiently certain and therefore "imminent"
in 1989.
...
57. The Court concludes from the foregoing that, with respect
to both Nagymaros and Gabcíkovo, the perils invoked by
Hungary, without prejudging their possible gravity, were not sufficiently
established in 1989, nor were they "imminent"; and that
Hungary had available to it at that time means of responding to
these perceived perils other than the suspension and abandonment
of works with which it had been entrusted.What is more, negotiations
were under way which might have led to a review of the Project
and the extension of some of its time-limits,
without there being need to abandon it. ...
Moreover, the Court notes that Hungary decided to conclude the 1977 Treaty, a Treaty which—whatever the political circumstances prevailing at the time of its conclusion—was treated by Hungary as valid and in force until the date declared for its termination in May 1992. As can be seen from the material before the Court, a great many studies of a scientific and technical nature had been conducted at an earlier time, both by Hungary and by Czechoslovakia. Hungary was, then, presumably aware of the situation as then known, when it assumed its obligations under the Treaty. Hungary contended before the Court that those studies had been inadequate and that the state of knowledge at that time was not such as to make possible a complete evaluation of the ecological implications of the Gabcíkovo-Nagymaros Project. It is nonetheless the case that although the principal object of the 1977 Treaty was the construction of a System of Locks for the production of electricity, improvement of navigation on the Danube and protection against flooding, the need to ensure the protection of the environment had not escaped the parties, as can be seen from Articles 15, 19 and 20 of the Treaty.
What is more, the Court cannot fail to note the positions taken
by Hungary after the entry into force of the 1977 Treaty. In 1983,
Hungary asked that the works under the Treaty should go forward
more slowly, for reasons that were essentially economic but also,
subsidiarily, related
to ecological concerns. In 1989, when, according to Hungary itself,
the state of scientific knowledge had undergone a significant
development, it asked for the works to be speeded up, and then
decided, three months later, to suspend them and subsequently
to abandon them. The Court is not however unaware that profound
changes were taking place in Hungary in 1989, and that, during
that transitory phase, it might have been more than usually difficult
to co-ordinate the different points of view prevailing from time
to time.
The Court infers from all these elements that, in the present
case, even if it had been established that there was, in 1989,
a state of necessity linked to the performance of the 1977 Treaty,
Hungary would not have been permitted to rely upon that state
of necessity in order to justify its
failure to comply with its treaty obligations, as it had helped,
by act or omission to bring it about.
...
59. In the light of the conclusions reached above, the Court ...
finds that Hungary was not entitled to suspend and subsequently
abandon, in 1989, the works on the Nagymaros Project and on the
part of the Gabcíkovo Project for which the 1977 Treaty
and related instruments attributed responsibility to it.
...
104. Hungary further argued that it was entitled to invoke a number
of events which, cumulatively, would have constituted a fundamental
change of circumstances [see § 8.2 of the course textbook].
In this respect it specified profound changes of a political nature,
the Project's diminishing economic viability, the progress of
environmental knowledge and the development of new norms and prescriptions
of international environmental law....
The Court does not consider that new developments in the state
of environmental knowledge and of environmental law can be said
to have been completely unforeseen. What is more, the formulation
of Articles 15, 19 and 20, designed to accommodate change, made
it possible for
the parties to take account of such developments and to apply
them when implementing those treaty provisions.
The changed circumstances advanced by Hungary are, in the Court's
view, not of such a nature, either individually or collectively,
that their effect would radically transform the extent of the
obligations still to be performed in order to accomplish the Project.
A fundamental change of
circumstances must have been unforeseen; the existence of the
circumstances at the time of the Treaty's conclusion must have
constituted an essential basis of the consent of the parties to
be bound by the Treaty. The negative and conditional wording of
Article 62 of the Vienna Convention on the Law of Treaties is
a clear indication moreover that the stability of treaty relations
requires that the plea of fundamental change of circumstances
be applied only in exceptional cases.
...
111. Finally, the Court will address Hungary's claim that it was
entitled to terminate the 1977 Treaty because new requirements
of international law for the protection of the environment precluded
performance of the Treaty.
112. Neither of the Parties contended that new peremptory norms
of environmental law had emerged since the conclusion of the 1977
Treaty, and the Court will consequently not be required to examine
the scope of Article 64 of the Vienna Convention on the Law of
Treaties. On the other hand, the Court wishes to point out that
newly developed norms of environmental law are relevant for the
implementation of the Treaty and that the parties could, by agreement,
incorporate them through the application of Articles 15, 19 and
20 of the Treaty. These articles do not contain specific obligations
of performance but require the parties, in carrying out their
obligations to ensure that the quality of water in the Danube
is not impaired and that nature is protected, to take new environmental
norms into consideration when agreeing upon the means
to be specified in the Joint Contractual Plan.
By inserting these evolving provisions in the Treaty, the parties recognized the potential necessity to adapt the Project. Consequently, the Treaty is not static, and is open to adapt to emerging norms of international law. By means of Articles 15 and 19, new environmental norms can be incorporated in the Joint Contractual Plan.
The responsibility to do this was a joint responsibility. The obligations contained in Articles 15, 19 and 20 are, by definition, general and have to be transformed into specific obligations of performance through a process of consultation and negotiation. Their implementation thus requires a mutual willingness to discuss in good faith actual and potential environmental risks.
It is all the more important to do this because as the Court recalled in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, "the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn" (I.C.J. Reports 1996, para. 29; see also paragraph 53 above).
The awareness of the vulnerability of the environment and the recognition that environmental risks have to be assessed on a continuous basis have become much stronger in the years since the Treaty's conclusion. These new concerns have enhanced the relevance of Articles 15, 19 and 20.
113. The Court recognizes that both Parties agree on the need
to take environmental concerns seriously and to take the required
precautionary measures, but they fundamentally disagree on the
consequences this has for the joint Project. In such a case, third-party
involvement may be helpful and instrumental in finding a solution,
provided each of the Parties is flexible in its position.
...
115. In the light of the conclusions it has reached above, the
Court ... finds that the notification of termination by Hungary
of 19 May 1992 did not have the legal effect of terminating the
1977 Treaty and related instruments.
...
125. The Court now turns to the other legal consequences arising
from its Judgment.
As to this, Hungary argued that future relations between the Parties, as far as Variant C is concerned, are not governed by the 1977 Treaty. It claims that it is entitled, pursuant to the Convention of 1976 on the Regulation of Water Management Issues of Boundary Waters, to "50% of the natural flow of the Danube at the point at which it crosses the boundary below Cunovo" and considers that the Parties
"are obliged to enter into negotiations in order to produce the result that the water conditions along the area from below Cunovo to below the confluence at Sap become jointly defined water conditions as required by Article 3 (a) of the 1976 Convention".
Hungary moreover indicated that any mutually accepted long-term
discharge régime must be "capable of avoiding damage,
including especially damage to biodiversity prohibited by the
[1992 Rio Convention on Biological Diversity]". It added
that "a joint environmental impact assessment of the region
and of the future of Variant C structures in the context of the
sustainable development of the region" should be carried
out.
...
134. What might have been a correct application of the law in
1989 or 1992, if the case had been before the Court then, could
be a miscarriage of justice if prescribed in 1997. The Court cannot
ignore the fact that the Gabcíkovo power plant has been
in operation for nearly five years, that the bypass canal which
feeds the plant receives its water from a significantly smaller
reservoir formed by a dam which is built not at Dunakiliti but
at Cunovo, and that the plant is operated in a run-of-the-river
mode and not in a peak hour mode as originally foreseen. Equally,
the Court cannot ignore the fact that, not only has Nagymaros
not been built, but that, with the effective discarding by both
Parties of peak power operation, there is no longer any point
in building it.
135. As the Court has already had occasion to point out, the
1977 Treaty was not only a joint investment project for the production
of energy, but it was designed to serve other objectives as well:
the improvement of the navigability of the Danube, flood control
and regulation of
ice-discharge, and the protection of the natural environment.
None of these objectives has been given absolute priority over
the other, in spite of the emphasis which is given in the Treaty
to the construction of a System of Locks for the production of
energy. None of them has lost its
importance. In order to achieve these objectives the parties accepted
obligations of conduct, obligations of performance, and obligations
of result.
136. It could be said that that part of the obligations of performance which related to the construction of the System of Locks—in so far as they were not yet implemented before 1992—have been overtaken by events. It would be an administration of the law altogether out of touch with reality if the Court were to order those obligations to be fully reinstated and the works at Cunovo to be demolished when the objectives of the Treaty can be adequately served by the existing structures.
137. Whether this is indeed the case is, first and foremost, for the Parties to decide. Under the 1977 Treaty its several objectives must be attained in an integrated and consolidated programme, to be developed in the Joint Contractual Plan. The Joint Contractual Plan was, until 1989, adapted and amended frequently to better fit the wishes of the parties. This Plan was also expressly described as the means to achieve the objectives of maintenance of water quality and protection of the environment.
138. The 1977 Treaty never laid down a rigid system, albeit that the construction of a system of locks at Gabcíkovo and Nagymaros was prescribed by the Treaty itself. In this respect, however, the subsequent positions adopted by the parties should be taken into consideration. Not only did Hungary insist on terminating construction at Nagymaros, but Czechoslovakia stated, on various occasions in the course of negotiations, that it was willing to consider a limitation or even exclusion of operation in peak hour mode. In the latter case the construction of the Nagymaros dam would have become pointless. The explicit terms of the Treaty itself were therefore in practice acknowledged by the parties to be negotiable.
139. The Court is of the opinion that the Parties are under
a legal obligation, during the negotiations to be held by virtue
of Article 5 of the Special Agreement, to consider, within the
context of the 1977 Treaty, in what way the multiple objectives
of the Treaty can best be served,
keeping in mind that all of them should be fulfilled.
140. It is clear that the Project's impact upon, and its implications for, the environment are of necessity a key issue. The numerous scientific reports which have been presented to the Court by the Parties—even if their conclusions are often contradictory—provide abundant evidence that this impact and these implications are considerable.
In order to evaluate the environmental risks, current standards must be taken into consideration. This is not only allowed by the wording of Articles 15 and 19, but even prescribed, to the extent that these articles impose a continuing—and thus necessarily evolving—obligation on the parties to maintain the quality of the water of the Danube and to protect nature.
The Court is mindful that, in the field of environmental protection,
vigilance and prevention are required on account of the often
irreversible character of damage to the environment and of the
limitations inherent in the very mechanism of reparation of this
type of damage.
Throughout the ages, mankind has, for economic and other reasons,
constantly interfered with nature. In the past, this was often
done without consideration of the effects upon the environment.
Owing to new scientific insights and to a growing awareness of
the risks for mankind—for present and future generations—of
pursuit of such interventions at an unconsidered and unabated
pace, new norms and standards have been developed, set forth in
a great number of instruments during the last two decades. Such
new norms have to be taken into consideration, and such new standards
given proper weight, not only when States contemplate new activities
but also when continuing with activities begun in the past. This
need to reconcile economic development with
protection of the environment is aptly expressed in the concept
of sustainable development.
For the purposes of the present case, this means that the Parties together should look afresh at the effects on the environment of the operation of the Gabcíkovo power plant. In particular they must find a satisfactory solution for the volume of water to be released into the old bed of the Danube and into the side-arms on both sides of the river.
141. It is not for the Court to determine what shall be the
final result of these negotiations to be conducted by the Parties.
It is for the Parties themselves to find an agreed solution that
takes account of the objectives of the Treaty, which must be pursued
in a joint and integrated way, as
well as the norms of international environmental law and the principles
of the law of international watercourses. The Court will recall
in this context that, as it said in the North Sea Continental
Shelf cases:
"[the Parties] are under an obligation so to conduct themselves that the
negotiations are meaningful, which will not be the case when either of
them insists upon its own position without contemplating any
modification of it" (I.C.J. Reports 1969, p. 47, para. 85).
...
155. For these reasons,
THE COURT,
(1) Having regard to Article 2, paragraph 1, of the Special Agreement,
A. Finds, by fourteen votes to one, that Hungary was not entitled to suspend and subsequently abandon, in 1989, the works on the Nagymaros Project and on the part of the Gabcíkovo Project for which the Treaty of 16 September 1977 and related instruments attributed responsibility to it;
B. Finds, by nine votes to six, that Czechoslovakia was entitled to proceed, in November 1991, to the "provisional solution" [Variant C] as described in the terms of the Special Agreement;
C. Finds, by ten votes to five, that Czechoslovakia was not entitled to put into operation, from October 1992, this "provisional solution";
D. Finds, by eleven votes to four, that the notification, on 19 May 1992, of the termination of the Treaty of 16 September 1977 and related instruments by Hungary did not have the legal effect of terminating them;
...
(2) Having regard to Article 2, paragraph 2, and Article 5 of
the Special Agreement,
A. Finds, by twelve votes to three, that Slovakia, as successor to Czechoslovakia, became a party to the Treaty of 16 September 1977 as from 1 January 1993;
B. Finds, by thirteen votes to two, that Hungary and Slovakia must negotiate in good faith in the light of the prevailing situation, and must take all necessary measures to ensure the achievement of the objectives of the Treaty of 16 September 1977, in accordance with such modalities as they may agree upon;
C. Finds, by thirteen votes to two, that, unless the Parties otherwise agree, a joint operational régime must be established in accordance with the Treaty of 16 September 1977;
D. Finds, by twelve votes to three, that, unless the Parties otherwise agree, Hungary shall compensate Slovakia for the damage sustained by Czechoslovakia and by Slovakia on account of the suspension and abandonment by Hungary of works for which it was responsible; and Slovakia shall compensate Hungary for the damage it has sustained on account of the putting into operation of the "provisional solution" by Czechoslovakia and its maintenance in service by Slovakia;
E. Finds, by thirteen votes to two, that the settlement of accounts for the construction and operation of the works must be effected in accordance with the relevant provisions of the Treaty of 16 September 1977 and related instruments, taking due account of such measures as will have been taken by the Parties in application of points 2 B and C of the present operative paragraph.
-----------------------------------------------------------------------------------------------------
Go To Chapter 12, Section 12.2, NOTES &
QUESTIONS, after Gabcikovo-Nagymaros reference to
this web page.