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[p7]
THE COURT
composed as above,
after deliberation,
delivers the following Judgment:
1. By a letter dated 2 July 1993, filed in the Registry of the Court on the
same day, the Ambassador of the Republic of Hungary (hereinafter called
"Hungary") to the Netherlands and the Charge d'affaires ad interim of the
Slovak Republic (hereinafter called "Slovakia") to the Netherlands jointly
notified to the Court a Special Agreement in English that had been signed at
Brussels on 7 April 1993 and had entered into force on 28 June 1993, on the
date of the exchange of instruments of ratification.
2. The text of the Special Agreement reads as follows: [p11]
"The Republic of Hungary and the Slovak Republic,
Considering that differences have arisen between the Czech and Slovak
Federal Republic and the Republic of Hungary regarding the implementation
and the termination of the Treaty on the Construction and Operation of the
Gabcikovo-Nagymaros Barrage System signed in Budapest on 16 September 1977
and related instruments (hereinafter referred to as "the Treaty"), and on
the construction and operation of the "provisional solution";
Bearing in mind that the Slovak Republic is one of the two successor States
of the Czech and Slovak Federal Republic and the sole successor State in
respect of rights and obligations relating to the Gabcikovo-Nagymaros
Project;
Recognizing that the Parties concerned have been unable to settle these
differences by negotiations;
Having in mind that both the Czechoslovak and Hungarian delegations
expressed their commitment to submit the differences connected with the
Gabcikovo-Nagymaros Project in all its aspects to binding international
arbitration or to the International Court of Justice;
Desiring that these differences should be settled by the International Court
of Justice;
Recalling their commitment to apply, pending the Judgment of the
International Court of Justice, such a temporary water management regime of
the Danube as shall be agreed between the Parties;
Desiring further to define the issues to be submitted to the International
Court of Justice,
Have agreed as follows:
Article 1
The Parties submit the questions contained in Article 2 to the International
Court of Justice pursuant to Article 40, paragraph 1, of the Statute of the
Court.
Article 2
(1) The Court is requested to decide on the basis of the Treaty and rules
and principles of general international law, as well as such other treaties
as the Court may find applicable,
(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
Gabcikovo 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, described in the Report of the Working Group
of Independent Experts of the Commission of the European Communities, the
Republic of Hungary and the Czech and Slovak Federal Republic dated 23
November 1992 (damming up of the Danube at river kilometre 1851.7 on
Czechoslovak territory and resulting consequences on water and navigation
course); [p12]
(c) what are the legal effects of the notification, on 19 May 1992, of the
termination of the Treaty by the Republic of Hungary.
(2) The Court is also requested to determine the legal consequences,
including the rights and obligations for the Parties, arising from its
Judgment on the questions in paragraph 1 of this Article.
Article 3
(1) All questions of procedure and evidence shall be regulated in accordance
with the provisions of the Statute and the Rules of Court.
(2) However, the Parties request the Court to order that the written
proceedings should consist of:
(a) a Memorial presented by each of the Parties not later than ten months
after the date of notification of this Special Agreement to the Registrar of
the International Court of Justice;
(b) a Counter-Memorial presented by each of the Parties not later than seven
months after the date on which each has received the certified copy of the
Memorial of the other Party;
(c) a Reply presented by each of the Parties within such time-limits as the
Court may order.
(d) The Court may request additional written pleadings by the Parties if it
so determines.
(3) The above-mentioned parts of the written proceedings and their annexes
presented to the Registrar will not be transmitted to the other Party until
the Registrar has received the corresponding part of the proceedings from
the said Party.
Article 4
(1) The Parties agree that, pending the final Judgment of the Court, they
will establish and implement a temporary water management regime for the
Danube.
(2) They further agree that, in the period before such a regime is
established or implemented, if either Party believes its rights are
endangered by the conduct of the other, it may request immediate
consultation and reference, if necessary, to experts, including the
Commission of the European Communities, with a view to protecting those
rights; and that protection shall not be sought through a request to the
Court under Article 41 of the Statute.
(3) This commitment is accepted by both Parties as fundamental to the
conclusion and continuing validity of the Special Agreement.
Article 5
(1) The Parties shall accept the Judgment of the Court as final and binding
upon them and shall execute it in its entirety and in good faith.
(2) Immediately after the transmission of the Judgment the Parties shall
enter into negotiations on the modalities for its execution.
(3) If they are unable to reach agreement within six months, either Party
may request the Court to render an additional Judgment to determine the
modalities for executing its Judgment.
Article 6
(1) The present Special Agreement shall be subject to ratification. [p13]
(2) The instruments of ratification shall be exchanged as soon as possible
in Brussels.
(3) The present Special Agreement shall enter into force on the date of
exchange of instruments of ratification. Thereafter it will be notified
jointly to the Registrar of the Court.
In witness whereof the undersigned being duly authorized thereto, have
signed the present Special Agreement and have affixed thereto their seals."
3. Pursuant to Article 40, paragraph 3, of the Statute and Article 42 of the
Rules of Court, copies of the notification and of the Special Agreement were
transmitted by the Registrar to the Secretary-General of the United Nations,
Members of the United Nations and other States entitled to appear before the
Court.
4. Since the Court included upon the Bench no judge of Slovak nationality,
Slovakia exercised its right under Article 31, paragraph 2, of the Statute
to choose a judge ad hoc to sit in the case: it chose Mr. Krzysztof Jan
Skubiszewski.
5. By an Order dated 14 July 1993, the Court fixed 2 May 1994 as the
time-limit for the filing by each of the Parties of a Memorial and 5
December 1994 for the filing by each of the Parties of a Counter-Memorial,
having regard to the provisions of Article 3, paragraph 2 (a) and (b), of
the Special Agreement. Those pleadings were duly filed within the prescribed
time-limits.
6. By an Order dated 20 December 1994, the President of the Court, having
heard the Agents of the Parties, fixed 20 June 1995 as the time-limit for
the filing of the Replies, having regard to the provisions of Article 3,
paragraph 2 (c), of the Special Agreement. The Replies were duly filed
within the time-limit thus prescribed and, as the Court had not asked for
the submission of additional pleadings, the case was then ready for hearing.
7. By letters dated 27 January 1997, the Agent of Slovakia, referring to the
provisions of Article 56, paragraph 1, of the Rules of Court, expressed his
Government's wish to produce two new documents; by a letter dated 10
February 1997, the Agent of Hungary declared that his Government objected to
their production. On 26 February 1997, after having duly ascertained the
views of the two Parties, the Court decided, in accordance with Article 56,
paragraph 2, of the Rules of Court, to authorize the production of those
documents under certain conditions of which the Parties were advised. Within
the time-limit fixed by the Court to that end, Hungary submitted comments on
one of those documents under paragraph 3 of that same Article. The Court
authorized Slovakia to comment in turn upon those observations, as it had
expressed a wish to do so; its comments were received within the time-limit
prescribed for that purpose.
8. Moreover, each of the Parties asked to be allowed to show a video
cassette in the course of the oral proceedings. The Court agreed to those
requests, provided that the cassettes in question were exchanged in advance
between the Parties, through the intermediary of the Registry. That exchange
was effected accordingly.
9. In accordance with Article 53, paragraph 2, of the Rules of Court, the
Court decided, after having ascertained the views of the Parties, that
copies of the pleadings and documents annexed would be made available to the
public as from the opening of the oral proceedings.
10. By a letter dated 16 June 1995, the Agent of Slovakia invited the Court
[p14] to visit the locality to which the case relates and there to exercise
its functions with regard to the obtaining of evidence, in accordance with
Article 66 of the Rules of Court. For his part, the Agent of Hungary
indicated, by a letter dated 28 June 1995, that, if the Court should decide
that a visit of that kind would be useful, his Government would be pleased
to co-operate in organizing it. By a letter dated 14 November 1995, the
Agents of the Parties jointly notified to the Court the text of a Protocol
of Agreement, concluded in Budapest and New York the same day, with a view
to proposing to the Court the arrangements that might be made for such a
visit in situ; and, by a letter dated 3 February 1997, they jointly notified
to it the text of Agreed Minutes drawn up in Budapest and New York the same
day, which supplemented the Protocol of Agreement of 14 November 1995. By an
Order dated 5 February 1997, the Court decided to accept the invitation to
exercise its functions with regard to the obtaining of evidence at a place
to which the case relates and, to that end, to adopt the arrangements
proposed by the Parties. The Court visited the area from 1 to 4 April 1997;
it visited a number of locations along the Danube and took note of the
technical explanations given by the representatives who had been designated
for the purpose by the Parties.
11. The Court held a first round of ten public hearings from 3 to 7 March
and from 24 to 27 March 1997, and a second round of four public hearings on
10, 11, 14 and 15 April 1997, after having made the visit in situ referred
to in the previous paragraph. During those hearings, the Court heard the
oral arguments and replies of:
For Hungary: H. E. Mr. Szenasi,
Professor Valki,
Professor Kiss,
Professor Vida,
Professor Carbiener,
Professor Crawford,
Professor Nagy,
Dr. Kern,
Professor Wheater,
Ms Gorove,
Professor Dupuy,
Professor Sands.
For Slovakia: H. E. Dr. Tomka,
Dr. Mikulka,
Mr. Wordsworth,
Professor McCaffrey,
Professor Mucha,
Professor Pellet,
Mr. Refsgaard,
Sir Arthur Watts.
12. The Parties replied orally and in writing to various questions put by
Members of the Court. Referring to the provisions of Article 72 of the Rules
of Court, each of the Parties submitted to the Court its comments upon the
replies given by the other Party to some of those questions.
*[p15]
13. In the course of the written proceedings, the following submissions were
presented by the Parties:
On behalf of Hungary,
in the Memorial, the Counter-Memorial and the Reply (mutatis mutandis
identical texts):
"On the basis of the evidence and legal argument presented in the Memorial,
Counter-Memorial and this Reply, the Republic of Hungary
Requests the Court to adjudge and declare
First, that the Republic of Hungary was entitled to suspend and subsequently
abandon the works on the Nagymaros Project and on the part of the Gabcikovo
Project for which the Treaty attributed responsibility to the Republic of
Hungary;
Second, that the Czech and Slovak Federal Republic was not entitled to
proceed to the 'provisional solution' (damming up of the Danube at river
kilometres 1,851.7 on Czechoslovak territory and resulting consequences on
water and navigation course);
Third, that by its Declaration of 19 May 1992, Hungary validly terminated
the Treaty on the Construction and Operation of the Gabcikovo-Nagymaros
Barrage System of 16 September 1977;
Requests the Court to adjudge and declare further
that the legal consequences of these findings and of the evidence and the
arguments presented to the Court are as follows:
(1) that the Treaty of 16 September 1977 has never been in force between the
Republic of Hungary and the Slovak Republic;
(2) that the Slovak Republic bears responsibility to the Republic of Hungary
for maintaining in operation the 'provisional solution' referred to above;
(3) that the Slovak Republic is internationally responsible for the damage
and loss suffered by the Republic of Hungary and by its nationals as a
result of the 'provisional solution';
(4) that the Slovak Republic is under an obligation to make reparation in
respect of such damage and loss, the amount of such reparation, if it cannot
be agreed by the Parties within six months of the date of the Judgment of
the Court, to be determined by the Court;
(5) that the Slovak Republic is under the following obligations:
(a) to return the waters of the Danube to their course along the
international frontier between the Republic of Hungary and the Slovak
Republic, that is to say the main navigable channel as defined by applicable
treaties;
(b) to restore the Danube to the situation it was in prior to the putting
into effect of the provisional solution; and
(c) to provide appropriate guarantees against the repetition of the damage
and loss suffered by the Republic of Hungary and by its nationals." [p16]
On behalf of Slovakia:
in the Memorial, the Counter-Memorial and the Reply (mutatis mutandis
identical texts):
"On the basis of the evidence and legal arguments presented in the Slovak
Memorial, Counter-Memorial and in this Reply, and reserving the right to
supplement or amend its claims in the light of further written pleadings,
the Slovak Republic
Requests the Court to adjudge and declare:
1. That the Treaty between Czechoslovakia and Hungary of 16 September 1977
concerning the construction and operation of the Gabcikovo/Nagymaros System
of Locks, and related instruments, and to which the Slovak Republic is the
acknowledged successor, is a treaty in force and has been so from the date
of its conclusion; and that the notification of termination by the Republic
of Hungary on 19 May 1992 was without legal effect.
2. That the Republic of Hungary was not entitled to suspend and subsequently
abandon the works on the Nagymaros Project and on that part of the Gabcikovo
Project for which the 1977 Treaty attributed responsibility to the Republic
of Hungary.
3. That the act of proceeding with and putting into operation Variant C, the
'provisional solution', was lawful.
4. That the Republic of Hungary must therefore cease forthwith all conduct
which impedes the full and bona fide implementation of the 1977 Treaty and
must take all necessary steps to fulfil its own obligations under the Treaty
without further delay in order to restore compliance with the Treaty.
5. That, in consequence of its breaches of the 1977 Treaty, the Republic of
Hungary is liable to pay, and the Slovak Republic is entitled to receive,
full compensation for the loss and damage caused to the Slovak Republic by
those breaches, plus interest and loss of profits, in the amounts to be
determined by the Court in a subsequent phase of the proceedings in this
case."
14. In the oral proceedings, the following submissions were presented by the
Parties
On behalf of Hungary,
at the hearing of 11 April 1997:
The submissions read at the hearing were mutatis mutandis identical to those
presented by Hungary during the written proceedings.
On behalf of Slovakia:
at the hearing of 15 April 1997:
"On the basis of the evidence and legal arguments presented in its written
and oral pleadings, the Slovak Republic,
Requests the Court to adjudge and declare:
1. That the Treaty, as defined in the first paragraph of the Preamble to the
Compromis between the Parties, dated 7 April 1993, concerning the
construction and operation of the Gabcikovo/Nagymaros System of Locks and
related instruments, concluded between Hungary and [p17] Czechoslovakia and
with regard to which the Slovak Republic is the successor State, has never
ceased to be in force and so remains, and that the notification of 19 May
1992 of purported termination of the Treaty by the Republic of Hungary was
without legal effect;
2. That the Republic of Hungary was not entitled to suspend and subsequently
abandon the works on the Nagymaros Project and on that part of the Gabcikovo
Project for which the 1977 Treaty attributes responsibility to the Republic
of Hungary;
3. That the Czech and Slovak Federal Republic was entitled, in November
1991, to proceed with the 'provisional solution' and to put this system into
operation from October 1992; and that the Slovak Republic was, and remains,
entitled to continue the operation of this system;
4. That the Republic of Hungary shall therefore cease forthwith all conduct
which impedes the bona fide implementation of the 1977 Treaty and shall take
all necessary steps to fulfil its own obligations under the Treaty without
further delay in order to restore compliance with the Treaty, subject to any
amendments which may be agreed between the Parties;
5. That the Republic of Hungary shall give appropriate guarantees that it
will not impede the performance of the Treaty, and the continued operation
of the system;
6. That, in consequence of its breaches of the 1977 Treaty, the Republic of
Hungary shall, in addition to immediately resuming performance of its Treaty
obligations, pay to the Slovak Republic full compensation for the loss and
damage, including loss of profits, caused by those breaches together with
interest thereon;
7. That the Parties shall immediately begin negotiations with a view, in
particular, to adopting a new timetable and appropriate measures for the
implementation of the Treaty by both Parties, and to fixing the amount of
compensation due by the Republic of Hungary to the Slovak Republic; and
that, if the Parties are unable to reach an agreement within six months,
either one of them may request the Court to render an additional Judgment to
determine the modalities for executing its Judgment."
***
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 Gabcikovo-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 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 Maly
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. The area lying between the
Maly Danube and that channel, in Slovak territory, constitutes the itny
Ostrov; the area between the main channel and the Mosoni Danube, in
Hungarian territory, constitutes the Szigetkoz. Cunovo and, further
downstream, Gabcikovo, are situated in this sector of the river on Slovak
territory, Cunovo on the right bank and Gabcikovo on the left. Further
downstream, after the confluence of the various branches, the river enters
Hungarian territory and the topography becomes hillier. Nagymaros lies in a
narrow valley at a bend in the Danube just before it turns south, enclosing
the large river island of Szentendre before reaching Budapest (see
sketch-map No. 1).
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.
[p19]
Sketch-Map No. 1
[p20]
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 Gabcikovo (in Czechoslovak territory) and the
other at Nagymaros (in Hungarian territory), to constitute "a single and
indivisible operational system of works" (see sketch-map No. 2 - 85 kb). 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 Gabcikovo 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.
Article 1, paragraph 4, of the Treaty further provided that the technical
specifications concerning the system would be included in the "Joint
Contractual Plan" which was to be drawn up in accordance with the Agreement
signed by the two Governments for this purpose on 6 May 1976; Article 4,
paragraph 1, for its part, specified that "the joint investment [would] be
carried out in conformity with the joint contractual plan".
According to Article 3, paragraph 1,
"Operations connected with the realization of the joint investment and with
the performance of tasks relating to the operation of the System of Locks
shall be directed and supervised by the Governments of the Contracting
Parties through . . . ( . . . 'government delegates')."
Those delegates had, inter alia, "to ensure that construction of the System
of Locks is . . . carried out in accordance with the approved joint
contractual plan and the Project work schedule". When the works were brought
into operation, they were moreover "To establish the operating
[p21]
Sketch-Map No. 2
[p22] and
operational procedures of the System of Locks and ensure compliance
therewith."
Article 4, paragraph 4, stipulated that:
"Operations relating to the joint investment [should] be organized by the
Contracting Parties in such a way that the power generation plants [would]
be put into service during the period 1986-1990."
Article 5 provided that the cost of the joint investment would be borne by
the contracting parties in equal measure. It specified the work to be
carried out by each one of them. Article 8 further stipulated that the
Dunakiliti dam, the bypass canal and the two series of locks at Gabcikovo
and Nagymaros would be "jointly owned" by the contracting parties "in equal
measure". Ownership of the other works was to be vested in the State on
whose territory they were constructed.
The parties were likewise to participate in equal measure in the use of the
system put in place, and more particularly in the use of the base-load and
peak-load power generated at the hydroelectric power plants (Art. 9).
According to Article 10, the works were to be managed by the State on whose
territory they were located, "in accordance with the jointly-agreed
operating and operational procedures", while Article 12 stipulated that the
operation, maintenance (repair) and reconstruction costs of jointly owned
works of the System of Locks were also to be borne jointly by the
contracting parties in equal measure.
According to Article 14,
"The discharge specified in the water balance of the approved joint
contractual plan shall be ensured in the bed of the Danube [between
Dunakiliti and Sap] unless natural conditions or other circumstances
temporarily require a greater or smaller discharge."
Paragraph 3 of that Article was worded as follows:
"In the event that the withdrawal of water in the Hungarian-Czechoslovak
section of the Danube exceeds the quantities of water specified in the water
balance of the approved joint contractual plan and the excess withdrawal
results in a decrease in the output of electric power, the share of electric
power of the Contracting Party benefiting from the excess withdrawal shall
be correspondingly reduced."
Article 15 specified that the contracting parties
"shall ensure, by the means specified in the joint contractual plan, that
the quality of the water in the Danube is not impaired as a result of the
construction and operation of the System of Locks". [p23]
Article 16 set forth the obligations of the contracting parties concerning
the maintenance of the bed of the Danube.
Article 18, paragraph 1, provided as follows:
"The Contracting Parties, in conformity with the obligations previously
assumed by them, and in particular with article 3 of the Convention
concerning the regime of navigation on the Danube, signed at Belgrade on 18
August 1948, shall ensure uninterrupted and safe navigation on the
international fairway both during the construction and during the operation
of the System of Locks."
It was stipulated in Article 19 that:
"The Contracting Parties shall, through the means specified in the joint
contractual plan, ensure compliance with the obligations for the protection
of nature arising in connection with the construction and operation of the
System of Locks."
Article 20 provided for the contracting parties to take appropriate
measures, within the framework of their national investments, for the
protection of fishing interests in conformity with the Convention concerning
Fishing in the Waters of the Danube, signed at Bucharest on 29 January 1958.
According to Article 22, paragraph 1, of the Treaty, the contracting parties
had, in connection with the construction and operation of the System of
Locks, agreed on minor revision to the course of the State frontier between
them as follows:
"(d) In the Dunakiliti-Hrusov head-water area, the State frontier shall run
from boundary point 161.V.O.a. to boundary stone No. I.5. in a straight line
in such a way that the territories affected, to the extent of about 10-10
hectares shall be offset between the two States."
It was further provided, in paragraph 2, that the revision of the State
frontier and the exchange of territories so provided for should be effected
"by the Contracting Parties on the basis of a separate treaty". No such
treaty was concluded.
Finally a dispute settlement provision was contained in Article 27, worded
as follows:
"1. The settlement of disputes in matters relating to the realization and
operation of the System of Locks shall be a function of the government
delegates.
2. If the government delegates are unable to reach agreement on the matters
in dispute, they shall refer them to the Governments of the Contracting
Parties for decision."
19. The Joint Contractual Plan, referred to in the previous paragraph, set
forth, on a large number of points, both the objectives of the system and
the characteristics of the works. In its latest version it specified in
paragraph 6.2 that the Gabcikovo bypass canal would have a discharge
capacity of 4,000 cubic metres per second (m 3 / s). The power plant would
include "Eight . . . turbines with 9.20 m diameter running wheels" and would
"mainly operate in peak-load time and continuously during high water". This
type of operation would give an energy production of 2,650 gigawatt/hours
(GWh) per annum. The plan further stipulated in paragraph 4.4.2:
"The low waters are stored every day, which ensures the peak load time
operation of the Gabcikovo hydropower plant . . . a minimum of 50 m3/s
additional water is provided for the old bed [of the Danube] besides the
water supply of the branch system."
The Plan further specified that, in the event that the discharge into the
bypass canal exceeded 4,000-4,500 m<3>/s, the excess amounts of water would
be channelled into the old bed. Lastly, according to paragraph 7.7 of the
Plan:
"The common operational regulation stipulates that concerning the operation
of the Dunakiliti barrage in the event of need during the growing season 200
m 3 / s discharge must be released into the old Danube bed, in addition to
the occasional possibilities for rinsing the bed."
The Joint Contractual Plan also contained "Preliminary Operating and
Maintenance Rules", Article 23 of which specified that "The final operating
rules [should] be approved within a year of the setting into operation of
the system." (Joint Contractual Plan, Summary Documentation, Vol. O-1-A.)
Nagymaros, with six turbines, was, according to paragraph 6.3 of the Plan,
to be a "hydropower station . . . type of a basic power-station capable of
operating in peak-load time for five hours at the discharge interval between
1,000-2,500 m3/ s" per day. The intended annual production was to be 1,025
GWh (i.e., 38 per cent of the production of Gabcikovo, for an installed
power only equal to 21 per cent of that of Gabcikovo).
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 at Dunakiliti and the works at Nagymaros, whereas
Czechoslovakia would have had control of the works at Gabcikovo.
*
21. The schedule of work had for its part been fixed in an Agreement on
mutual assistance signed by the two parties on 16 September 1977, at [p25]
the same time as the Treaty itself. The Agreement moreover made some
adjustments to the allocation of the works between the parties as laid down
by the Treaty.
Work on the Project started in 1978. On Hungary's initiative, the two
parties first agreed, by two Protocols signed on 10 October 1983 (one
amending Article 4, paragraph 4, of the 1977 Treaty and the other the
Agreement on mutual assistance), to slow the work down and to postpone
putting into operation the power plants, and then, by a Protocol signed on 6
February 1989 (which amended the Agreement on mutual assistance), to
accelerate the Project.
22. 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 (see sketch-map No. 3 - 88 kb). 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
Dobrohost' and Gabcikovo. 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 Gabcikovo 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
[p26]
Sketch-Map No. 3
[p27] 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. On 23 October 1992, the Court was seised of an "Application of the
Republic of Hungary v. The Czech and Slovak Federal Republic on The
Diversion of the Danube River"; however, Hungary acknowledged that there was
no basis on which the Court could have founded its jurisdiction to entertain
that application, on which Czechoslovakia took no action. 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. On 1 January 1993 Slovakia became an independent State. On 7 April 1993,
the "Special Agreement for Submission to the International Court of Justice
of the Differences Between the Republic of Hungary and the Slovak Republic
Concerning the Gabcikovo-Nagymaros Project" was signed in Brussels, the text
of which is reproduced in paragraph 2 above. After the Special Agreement was
notified to the Court, Hungary informed the Court, by a letter dated 9
August 1993, that it considered its "initial Application [to be] now without
object, and . . . lapsed".
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 regime for the Danube." However, this
regime could not easily be settled. The filling of the Cunovo dam 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."
On 1 December 1993, the experts designated by the Commission of the European
Communities recommended the adoption of various measures to remedy the
situation on a temporary basis. The Parties were unable to agree on these
recommendations. After lengthy negotiations, they finally concluded an
Agreement "concerning Certain Temporary Technical Measures and Discharges in
the Danube and Mosoni branch of the Danube", [p28] on 19 April 1995. That
Agreement raised the discharge of water into the Mosoni Danube to 43 m 3 /
s. It provided for an annual average of 400 m 3 / s in the old bed (not
including flood waters). Lastly, it provided for the construction by Hungary
of a partially underwater weir near to Dunakiliti with a view to improving
the water supply to the side-arms of the Danube on the Hungarian side. It
was specified that this temporary agreement would come to an end 14 days
after the Judgment of the Court.
***
26. The first sub-paragraph of the Preamble to the Special Agreement covers
the disputes arising between Czechoslovakia and Hungary concerning the
application and termination, not only of the 1977 Treaty, but also of
"related instruments"; the sub-paragraph specifies that, for the purposes of
the Special Agreement, the 1977 Treaty and the said instruments shall be
referred to as "the Treaty". "The Treaty" is expressly referred to in the
wording of the questions submitted to the Court in Article 2, paragraph 1,
sub-paragraphs (a) and (c), of the Special Agreement.
The Special Agreement however does not define the concept of "related
instruments", nor does it list them. As for the Parties, they gave some
consideration to that question -- essentially in the written proceedings --
without reaching agreement as to the exact meaning of the expression or as
to the actual instruments referred to. The Court notes however that the
Parties seemed to agree to consider that that expression covers at least the
instruments linked to the 1977 Treaty which implement it, such as the
Agreement on mutual assistance of 16 September 1977 and its amending
Protocols dated, respectively, 10 October 1983 and 6 February 1989 (see
paragraph 21 above), and the Agreement as to the common operational
regulations of Plenipotentiaries fulfilling duties related to the
construction and operation of the Gabcikovo-Nagymaros Barrage System signed
in Bratislava on 11 October 1979. The Court notes that Hungary, unlike
Slovakia, declined to apply the description of related instruments to the
1977 Treaty to the Joint Contractual Plan (see paragraph 19 above), which it
refused to see as "an agreement at the same level as the other [...]related
Treaties and inter State agreements".
Lastly the Court notes that the Parties, in setting out the replies which
should in their view be given to the questions put in the Special Agreement,
concentrated their reasoning on the 1977 Treaty; and that they would appear
to have extended their arguments to "related instruments" in considering
them as accessories to a whole treaty system, whose fate was in principle
linked to that of the main part, the 1977 Treaty. The Court takes note of
the positions of the Parties and considers that it does not need to go into
this matter further at this juncture.
***
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
Gabcikovo Project for which the Treaty attributed responsibility to the
Republic of Hungary".
28. The Court would recall that the Gabcikovo-Nagymaros System of Locks is
characterized in Article 1, paragraph 1, of the 1977 Treaty as a "single and
indivisible operational system of works".
The principal works which were to constitute this system have been described
in general terms above (see paragraph 18). Details of them are given in
paragraphs 2 and 3 of Article 1 of the Treaty.
For Gabcikovo, paragraph 2 lists the following works:
"(a) The Dunakiliti-Hrusov head-water installations in the Danube sector at
r.km. (river kilometre(s)) 1860-1842, designed for a maximum flood stage of
131.10 m.B. (metres above sea-level, Baltic system), in Hungarian and
Czechoslovak territory;
(b) The Dunakiliti dam and auxiliary navigation lock at r.km. 1842, in
Hungarian territory;
(c) The by-pass canal (head-water canal and tail-water canal) at r.km.
1842-1811, in Czechoslovak territory;
(d) Series of locks on the by-pass canal, in Czechoslovak territory,
consisting of a hydroelectric power plant with installed capacity of 720 MW,
double navigation locks and appurtenances thereto;
(e) Improved old bed of the Danube at r.km. 1842-1811, in the joint
Hungarian-Czechoslovak section;
(f) Deepened and regulated bed of the Danube at r.km. 1811-1791, in the
joint Hungarian-Czechoslovak section."
For Nagymaros, paragraph 3 specifies the following works:
"(a) Head-water installations and flood-control works in the Danube sector
at r.km. 1791-1696.25 and in the sectors of tributaries affected by flood
waters, designed for a maximum flood stage of 107.83 m.B., in Hungarian and
Czechoslovak territory;
(b) Series of locks at r.km. 1696.25, in Hungarian territory, consisting of
a dam, a hydroelectric power plant with installed capacity of 158 MW, double
navigation locks and appurtenances thereto;
(c) Deepened and regulated bed of the Danube, in both its branches, at r.km.
1696.25-1657, in the Hungarian section."[p30]
29. Moreover, the precise breakdown of the works incumbent on each party was
set out in Article 5, paragraph 5, of the 1977 Treaty, as follows:
"5. The labour and supplies required for the realization of the joint
investment shall be apportioned between the Contracting Parties in the
following manner:
(a) The Czechoslovak Party shall be responsible for:
(1) The Dunakiliti-Hrusov head-water installations on the left bank, in
Czechoslovak territory;
(2) The head-water canal of the by-pass canal, in Czechoslovak territory;
(3) The Gabcikovo series of locks, in Czechoslovak territory;
(4) The flood-control works of the Nagymaros head-water installations, in
Czechoslovak territory, with the exception of the lower Ipel district;
(5) Restoration of vegetation in Czechoslovak territory;
(b) The Hungarian Party shall be responsible for:
(1) The Dunakiliti-Hrusov head-water installations on the right bank, in
Czechoslovak territory, including the connecting weir and the diversionary
weir;
(2) The Dunakiliti-Hrusov head-water installations on the right bank, in
Hungarian territory;
(3) The Dunakiliti dam, in Hungarian territory;
(4) The tail-water canal of the by-pass canal, in Czechoslovak territory;
(5) Deepening of the bed of the Danube below Palkovieovo, in Hungarian and
Czechoslovak territory;
(6) Improvement of the old bed of the Danube, in Hungarian and Czechoslovak
territory;
(7) Operational equipment of the Gabcikovo system of locks (transport
equipment, maintenance machinery), in Czechoslovak territory;
(8) The flood-control works of the Nagymaros head-water installations in the
lower Ipel district, in Czechoslovak territory;
(9) The flood-control works of the Nagymaros head-water installations, in
Hungarian territory;
(10) The Nagymaros series of locks, in Hungarian territory;
(11) Deepening of the tail-water bed below the Nagymaros system of locks, in
Hungarian territory;
(12) Operational equipment of the Nagymaros system of locks (transport
equipment, maintenance machinery), in Hungarian territory;
(13) Restoration of vegetation in Hungarian territory." [p31]
30. As the Court has already indicated (see paragraph 18 above), Article 1,
paragraph 4, of the 1977 Treaty stipulated in general terms that the
"technical specifications" concerning the System of Locks would be included
in the "joint contractual plan". The schedule of work had for its part been
fixed in an Agreement on mutual assistance signed by the two parties on 16
September 1977 (see paragraph 21 above). In accordance with the provisions
of Article 1, paragraph 1, of that Agreement, the whole of the works of the
barrage system were to have been completed in 1991. As indicated in
paragraph 2 of that same article, a summary construction schedule was
appended to the Agreement, and provision was made for a more detailed
schedule to be worked out in the Joint Contractual Plan. The Agreement of 16
September 1977 was twice amended further. By a Protocol signed on 10 October
1983, the parties agreed first to postpone the works and the putting into
operation of the power plants for four more years; then, by a Protocol
signed on 6 February 1989, the parties decided, conversely, to bring them
forward by 15 months, the whole system having to be operational in 1994. A
new summary construction schedule was appended to each of those Protocols;
those schedules were in turn to be implemented by means of new detailed
schedules, included in the Joint Contractual Plan.
31. In spring 1989, the work on the Gabcikovo sector was well advanced: the
Dunakiliti dam was 90 per cent complete, the Gabcikovo dam was 85 per cent
complete, and the bypass canal was between 60 per cent complete (downstream
of Gabcikovo) and 95 per cent complete (upstream of Gabcikovo) and the dykes
of the Dunakiliti-Hrusov reservoir were between 70 and 98 per cent complete,
depending on the location. This was not the case in the Nagymaros sector
where, although dykes had been built, the only structure relating to the dam
itself was the coffer-dam which was to facilitate its construction.
32. In the wake of the profound political and economic changes which
occurred at this time in central Europe, the Gabcikovo-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.
33. It was against this background that, on 13 May 1989, the Government of
Hungary adopted a resolution to suspend works at Nagymaros, and ordered:
"the Ministers concerned to commission further studies in order to place the
Council of Ministers in a position where it can make well-founded
suggestions to the Parliament in connection with the amendment of the
international treaty on the investment. In the interests of [p32] the
above, we must examine the international and legal consequences, the
technical considerations, the obligations related to continuous navigation
on the Danube and the environmental/ecological and seismic impacts of the
eventual stopping of the Nagymaros investment. To be further examined are
the opportunities for the replacement of the lost electric energy and the
procedures for minimising claims for compensation."
The suspension of the works at Nagymaros was intended to last for the
duration of these studies, which were to be completed by 31 July 1989.
Czechoslovakia immediately protested and a document defining the position of
Czechoslovakia was transmitted to the Ambassador of Hungary in Prague on 15
May 1989. The Prime Ministers of the two countries met on 24 May 1989, but
their talks did not lead to any tangible result. On 2 June, the Hungarian
Parliament authorized the Government to begin negotiations with
Czechoslovakia for the purpose of modifying the 1977 Treaty.
34. At a meeting held by the Plenipotentiaries on 8 and 9 June 1989, Hungary
gave Czechoslovakia a number of assurances concerning the continuation of
works in the Gabcikovo sector, and the signed Protocol which records that
meeting contains the following passage:
"The Hungarian Government Commissioner and the Hungarian Plenipotentiary
stated, that the Hungarian side will complete construction of the Gabcikovo
Project in the agreed time and in accordance with the project plans.
Directives have already been given to continue works suspended in the area
due to misunderstanding."
These assurances were reiterated in a letter that the Commissioner of the
Government of Hungary addressed to the Czechoslovak Plenipotentiary on 9
June 1989.
35. With regard to the suspension of work at Nagymaros, the Hungarian
Deputy-Prime Minister, in a letter dated 24 June 1989 addressed to his
Czechoslovak counterpart, expressed himself in the following terms:
"The Hungarian Academy of Sciences (HAS) has studied the environmental,
ecological and water quality as well as the seismological impacts of
abandoning or implementing the Nagymaros Barrage of the Gabcikovo-Nagymaros
Barrage System (GNBS).
Having studied the expected impacts of the construction in accordance with
the original plan, the Committee [ad hoc] of the Academy [set up for this
purpose] came to the conclusion that we do not have adequate knowledge of
the consequences of environmental risks.
In its opinion, the risk of constructing the Barrage System in accordance
with the original plan cannot be considered acceptable. Of course, it cannot
be stated either that the adverse impacts will [p33] ensue for certain,
therefore, according to their recommendation, further thorough and time
consuming studies are necessary."
36. The Hungarian and Czechoslovak Prime Ministers met again on 20 July 1989
to no avail. Immediately after that meeting, the Hungarian Government
adopted a second resolution, under which the suspension of work at Nagymaros
was extended to 31 October 1989. However, this resolution went further, as
it also prescribed the suspension, until the same date, of the "Preparatory
works on the closure of the riverbed at . . . Dunakiliti"; the purpose of
this measure
was to invite "international scientific institutions [and] foreign
scientific institutes and experts" to co-operate with "the Hungarian and
Czechoslovak institutes and experts" with a view to an assessment of the
ecological impact of the Project and the "development of a technical and
operational water quality guarantee system and . . . its implementation".
37. In the ensuing period, negotiations were conducted at various levels
between the two States, but proved fruitless. Finally, by a letter dated 4
October 1989, the Hungarian Prime Minister formally proposed to
Czechoslovakia that the Nagymaros sector of the Project be abandoned and
that an agreement be concluded with a view to reducing the ecological risks
associated with the Gabcikovo sector of the Project. He proposed that that
agreement should be concluded before 30 July 1990.
The two Heads of Government met on 26 October 1989, and were unable to reach
agreement. By a Note Verbale dated 30 October 1989, Czechoslovakia,
confirming the views it had expressed during those talks, proposed to
Hungary that they should negotiate an agreement on a system of technical,
operational and ecological guarantees relating to the Gabcikovo-Nagymaros
Project, "on the assumption that the Hungarian party will immediately
commence preparatory work on the refilling of the Danube's bed in the region
of Dunakiliti". It added that the technical principles of the agreement
could be initialled within two weeks and that the agreement itself ought to
be signed before the end of March 1990. After the principles had been
initialled, Hungary "[was to] start the actual closure of the Danube bed".
Czechoslovakia further stated its willingness to "conclu[de] . . . a
separate agreement in which both parties would oblige themselves to
limitations or exclusion of peak hour operation mode of the . . . System".
It also proposed "to return to deadlines indicated in the Protocol of
October 1983", the Nagymaros construction deadlines being thus extended by
15 months, so as to enable Hungary to take advantage of the time thus gained
to study the ecological issues and formulate its own proposals in due time.
Czechoslovakia concluded by announcing that, should Hungary continue
unilaterally to breach the Treaty, Czechoslovakia would proceed with a
provisional solution.
In the meantime, the Hungarian Government had on 27 October adopted a
further resolution, deciding to abandon the construction of the [p34]
Nagymaros dam and to leave in place the measures previously adopted for
suspending the works at Dunakiliti. Then, by Notes Verbales dated 3 and 30
November 1989, Hungary proposed to Czechoslovakia a draft treaty
incorporating its earlier proposals, relinquishing peak power operation of
the Gabcikovo power plant and abandoning the construction of the Nagymaros
dam. The draft provided for the conclusion of an agreement on the completion
of Gabcikovo in exchange for guarantees on protection of the environment. It
finally envisaged the possibility of one or other party seising an arbitral
tribunal or the International Court of Justice in the event that differences
of view arose and persisted between the two Governments about the
construction and operation of the Gabcikovo dam, as well as measures to be
taken to protect the environment. Hungary stated that it was ready to
proceed immediately "with the preparatory operations for the Dunakiliti
bed-decanting", but specified that the river would not be dammed at
Dunakiliti until the agreement on guarantees had been concluded.
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 Gabcikovo-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
Gabcikovo-Nagymaros Project constituted a "totalitarian, gigomaniac monument
which is against nature", while emphasizing that "the problem [was] that
[the Gabcikovo 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.
**[p35]
39. The two Parties to this case concur in recognizing that the 1977 Treaty,
the above-mentioned Agreement on mutual assistance of 1977 and the Protocol
of 1989 were validly concluded and were duly in force when the facts
recounted above took place.
Further, they do not dispute the fact that, however flexible they may have
been, these texts did not envisage the possibility of the signatories
unilaterally suspending or abandoning the work provided for therein, or even
carrying it out according to a new schedule not approved by the two
partners.
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 Gabcikovo-Nagymaros
System of Locks had been designed to enable the Gabcikovo 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 Gabcikovo. 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 Gabcikovo/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 Szigetkoz. 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, [p36]
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 Gabcikovo
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.
41. In its written pleadings, Hungary also accused Czechoslovakia of having
violated various provisions of the 1977 Treaty from before 1989 - in
particular articles 15 and 19 relating, respectively, to water quality and
nature protection - in refusing to take account of the now evident
ecological dangers and insisting that the works be continued, notably at
Nagymaros. In this context Hungary contended that, in accordance with the
terms of Article 3, paragraph 2, of the Agreement of 6 May 1976 concerning
the Joint Contractual Plan, Czechoslovakia bore responsibility for research
into the Project's impact on the environment; Hungary stressed that the
research carried out by Czechoslovakia had not been conducted adequately,
the potential effects of the Project on the environment of the construction
having been assessed by Czechoslovakia only from September 1990. However, in
the final stage of its argument, Hungary does not appear to have sought to
formulate this complaint as an independent ground formally justifying the
suspension and abandonment of the works for which it was responsible under
the 1977 Treaty. Rather, it presented the violations of the Treaty prior to
1989, which it imputes to Czechoslovakia, as one of the elements
contributing to the emergence of a state of necessity.
42. Hungary moreover contended from the outset that its conduct in the
present case should not be evaluated only in relation to the law of
treaties. It also observed that, in accordance with the provisions of
Article 4, the Vienna Convention of 23 May 1969 on the Law of Treaties could
not be applied to the 1977 Treaty, which was concluded before that
Convention entered into force as between the parties. Hungary has indeed
acknowledged, with reference to the jurisprudence of the Court, that in many
respects the Convention reflects the existing customary law. Hungary
nonetheless stressed the need to adopt a cautious attitude, while [p37]
suggesting that the Court should consider, in each case, the conformity of
the prescriptions of the Convention with customary international law.
43. Slovakia, for its part, denied that the basis for suspending or
abandoning the performance of a treaty obligation can be found outside the
law of treaties. It acknowledged that the 1969 Vienna Convention could not
be applied as such to the 1977 Treaty, but at the same time stressed that a
number of its provisions are a reflection of pre-existing rules of customary
international law and specified that this is, in particular, the case with
the provisions of Part V relating to invalidity, termination and suspension
of the operation of treaties. Slovakia has moreover observed that, after the
Vienna Convention had entered into force for both parties, Hungary affirmed
its accession to the substantive obligations laid down by the 1977 Treaty
when it signed the Protocol of 6 February 1989 that cut short the schedule
of work; and this led it to conclude that the Vienna Convention was
applicable to the "contractual legal regime" constituted by the network of
interrelated agreements of which the Protocol of 1989 was a part.
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 Gabcikovo 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.
45. Slovakia moreover denied that it in any way breached the 1977 Treaty --
particularly its Articles 15 and 19 -- and maintained, inter alia, that
according to the terms of Article 3, paragraph 2, of the Agreement of 6 May
1976 relating to the Joint Contractual Plan -- research into the impact of
the Project on the environment was not the exclusive responsibility of
Czechoslovakia but of either one of the parties, depending on the location
of the works.
Lastly, in its turn, it reproached Hungary with having adopted its
unilateral measures of suspension and abandonment of the works in viola-[p38]tion of the provisions of Article 27 of the 1977 Treaty (see paragraph 18
above), which it submits required prior recourse to the machinery for
dispute settlement provided for in that Article.
**
46. The Court has no need to dwell upon the question of the applicability in
the present case of the Vienna Convention of 1969 on the Law of Treaties. It
needs only to be mindful of the fact that it has several times had occasion
to hold that some of the rules laid down in that Convention might be
considered as a codification of existing customary law. The Court takes the
view that in many respects this applies to the provisions of the Vienna
Convention concerning the termination and the suspension of the operation of
treaties, set forth in Articles 60 to 62 (see Legal Consequences for States
of the Continued Presence of South Africa in Namibia (South-West
Africa)notwithstanding Security Council Resolution 276 (1970)), Advisory
Opinion, I.C.J. Reports 1971, p. 47 and Fisheries Jurisdiction (United
Kingdom v. Iceland), Jurisdiction of the Court, Judgment, I.C.J. Reports
1973, p. 18; see also Interpretation of the Agreement of 25 March 1951
between the WHO and Egypt, Advisory Opinion, I.C.J. Reports 1980, pp.
95-96).
Neither has the Court lost sight of the fact that the Vienna Convention is
in any event applicable to the Protocol of 6 February 1989 whereby Hungary
and Czechoslovakia agreed to accelerate completion of the works relating to
the Gabcikovo-Nagymaros Project.
47. Nor does the Court need to dwell upon the question of the relationship
between the law of treaties and the law of State responsibility, to which
the Parties devoted lengthy arguments, as those two branches of
international law obviously have a scope that is distinct. A determination
of whether a convention is or is not in force, and whether it has or has not
been properly suspended or denounced, is to be made pursuant to the law of
treaties. On the other hand, an evaluation of the extent to which the
suspension or denunciation of a convention, seen as incompatible with the
law of treaties, involves the responsibility of the State which proceeded to
it, is to be made under the law of State responsibility.
Thus the Vienna Convention of 1969 on the Law of Treaties confines itself to
defining -- in a limitative manner -- the conditions in which a treaty may
lawfully be denounced or suspended; while the effects of a denunciation or
suspension seen as not meeting those conditions are, on the contrary,
expressly excluded from the scope of the Convention by operation of Article
73. It is moreover well established that, when a State has committed an
internationally wrongful act, its international responsibility is likely to
be involved whatever the nature of the obligation it has failed to respect
(cf. Interpretation of Peace Treaties with Bulgaria, Hungary and Romania,
Second Phase, Advisory Opinion, I.C.J. Reports 1950, p. 228; and see Article
17 of the Draft Articles on State Responsi-[p39]bility provisionally
adopted by the International Law Commission on first reading, Yearbook of
the International Law Commission, 1980, Vol. II, Part 2, p. 32).
48. The Court cannot accept Hungary's argument to the effect that, in 1989,
in suspending and subsequently abandoning the works for which it was still
responsible at Nagymaros and at Dunakiliti, it did not, for all that,
suspend the application of the 1977 Treaty itself or then reject that
Treaty. The conduct of Hungary at that time can only be interpreted as an
expression of its unwillingness to comply with at least some of the
provisions of the Treaty and the Protocol of 6 February 1989, as specified
in the Joint Contractual Plan. The effect of Hungary's conduct was to render
impossible the accomplishment of the system of works that the Treaty
expressly described as "single and indivisible".
The Court moreover observes that, when it invoked the state of necessity in
an effort to justify that conduct, Hungary chose to place itself from the
outset 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. The state of necessity claimed by Hungary -- supposing it to have
been established -- thus could not permit of the conclusion that, in 1989,
it had acted in accordance with its obligations under the 1977 Treaty or
that those obligations had ceased to be binding upon it. It would only
permit the affirmation that, under the circumstances, Hungary would not
incur international responsibility by acting as it did. Lastly, the Court
points out that Hungary expressly acknowledged that, in any event, such a
state of necessity would not exempt it from its duty to compensate its
partner.
*
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.
50. In the present case, the Parties are in agreement in considering that
the existence of a state of necessity must be evaluated in the light of the
criteria laid down by the International Law Commission in Article 33 of the
Draft Articles on the International Responsibility of States that it adopted
on first reading. That provision is worded as follows:
"Article 33. State of necessity
1. A state of necessity may not be invoked by a State as a ground for
precluding the wrongfulness of an act of that State not in conformity with
an international obligation of the State unless:
(a) the act was the only means of safeguarding an essential interest of the
State against a grave and imminent peril; and[p40]
(b) the act did not seriously impair an essential interest of the State
towards which the obligation existed.
2. In any case, a state of necessity may not be invoked by a State as a
ground for precluding wrongfulness:
(a) if the international obligation with which the act of the State is not
in conformity arises out of a peremptory norm of general international law;
or
(b) if the international obligation with which the act of the State is not
in conformity is laid down by a treaty which, explicitly or implicitly,
excludes the possibility of invoking the state of necessity with respect to
that obligation; or
(c) if the State in question has contributed to the occurrence of the state
of necessity." (Yearbook of the International Law Commission, 1980, Vol. II,
Part 2, p. 34.)
In its Commentary, the Commission defined the "state of necessity" as being
"the situation of a State whose sole means of safeguarding an essential
interest threatened by a grave and imminent peril is to adopt conduct not in
conformity with what is required of it by an international obligation to
another State" (ibid., para. 1).)
It concluded that "the notion of state of necessity is . . . deeply rooted
in general legal thinking" (ibid., p. 49, para. 31).
51. The Court considers, first of all, that the state of necessity is a
ground recognized by customary international law for precluding the
wrongfulness of an act not in conformity with an international obligation.
It observes moreover that such ground for precluding wrongfulness can only
be accepted on an exceptional basis. The International Law Commission was of
the same opinion when it explained that it had opted for a negative form of
words in Article 33 of its Draft
"in order to show, by this formal means also, that the case of invocation of
a state of necessity as a justification must be considered as really
constituting an exception - and one even more rarely admissible than is the
case with the other circumstances precluding wrongfulness . . ." (ibid., p.
51, para. 40).
Thus, according to the Commission, the state of necessity can only be
invoked under certain strictly defined conditions which must be cumulatively
satisfied; and the State concerned is not the sole judge of whether those
conditions have been met.
52. In the present case, the following basic conditions set forth in Draft
Article 33 are relevant: it must have been occasioned by an "essential
interest" of the State which is the author of the act conflicting with one
of its international obligations; 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 impair[ed] 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". Those
conditions reflect customary international law.
The Court will now endeavour to ascertain whether those conditions had been
met at the time of the suspension and abandonment, by Hungary, of the works
that it was to carry out in accordance with the 1977 Treaty.
53. The Court has no difficulty in acknowledging that the concerns expressed
by Hungary for its natural environment in the region affected by the
Gabcikovo-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 (see Yearbook of the International Law
Commission, 1980, Vol. II, Part 2, p. 49, para. 32); 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]" (ibid., p. 35, para. 3); 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." (Ibid., p. 39, para. 14.)
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 (see paragraphs 33 et seq. above),
Hungary on several occasions expressed, in 1989, its "uncertainties" as to
the ecological impact of putting in place the Gabcikovo-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" (Yearbook
of the International Law Commission, 1980, Vol. II, Part 2, p. 49, para.
33). 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 in order to respond to the questions put to it in the Special
Agreement for it 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 on account 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 Gab-[p43]cikovo
power plant would "mainly operate in peak-load time and continuously during
high water", the final rules of operation had not yet been determined (see
paragraph 19 above); 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 Gabcikovo 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 Szigetkoz, 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 Szigetkoz,
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 appre-[p44]hended 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, as the Court explained in paragraph
34 above, 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, which was also referred to in paragraph 35 of the
present Judgment, 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 -- when it states that:
"The measuring results of an at least five-year monitoring period following
the completion of the Gabcikovo construction are indispensable to the
trustworthy prognosis of the ecological impacts of the barrage system. There
is undoubtedly a need for the establishment and regular operation of a
comprehensive monitoring system, which must be more developed than at
present. The examination of biological indicator objects that can
sensitively indicate the changes happening in the environment, neglected
till today, have to be included."
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.
The Court moreover considers that Hungary could, in this context [p45]
also, have resorted to other means in order to respond to the dangers that
it apprehended. In particular, within the framework of the original Project,
Hungary seemed to be in a position to control at least partially the
distribution of the water between the bypass canal, the old bed of the
Danube and the side-arms. It should not be overlooked that the Dunakiliti
dam was located in Hungarian territory and that Hungary could construct the
works needed to regulate flows along the old bed of the Danube and the
side-arms. Moreover, it should be borne in mind that Article 14 of the 1977
Treaty provided for the possibility that each of the parties might withdraw
quantities of water exceeding those specified in the Joint Contractual Plan,
while making it clear that, in such an event, "the share of electric power
of the Contracting Party benefitting from the excess withdrawal shall be
correspondingly reduced".
57. The Court concludes from the foregoing that, with respect to both
Nagymaros and Gabcikovo, 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. The Court infers from this that the respect by Hungary, in 1989,
of its obligations under the terms of the 1977 Treaty would not have
resulted in a situation "characterized so aptly by the maxim summum jus
summa injuria" (Yearbook of the International Law Commission, 1980, Vol. II,
Part 2, p. 49, para. 31).
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
Gabcikovo-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, [p46] 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.
58. It follows that the Court has no need to consider whether Hungary, by
proceeding as it did in 1989, "seriously impair[ed] an essential interest"
of Czechoslovakia, within the meaning of the aforementioned Article 33 of
the Draft of the International Law Commission -- a finding which does not in
any way prejudge the damage Czechoslovakia claims to have suffered on
account of the position taken by Hungary.
Nor does the Court need to examine the argument put forward by Hungary,
according to which certain breaches of Articles 15 and 19 of the 1977
Treaty, committed by Czechoslovakia even before 1989, contributed to the
purported state of necessity; and neither does it have to reach a decision
on the argument advanced by Slovakia, according to which Hungary breached
the provisions of Article 27 of the Treaty, in 1989, by taking unilateral
measures without having previously had recourse to the machinery of dispute
settlement for which that Article provides.
**
59. In the light of the conclusions reached above, the Court, in reply to
the question put to it in Article 2, paragraph 1 (a), of the Special
Agreement (see paragraph 27), 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 Gabcikovo Project for which the 1977 Treaty and related
instruments attributed responsibility to it.
***
60. By the terms of Article 2, paragraph 1 (b), of the Special Agreement,
the Court is asked in the second place to decide
"(b)whether the Czech and Slovak Federal Republic was entitled to proceed,
in November 1991, to the 'provisional solution' [p47] and to put into
operation from October 1992 this system, described in the Report of the
Working Group of Independent Experts of the Commission of the European
Communities, the Republic of Hungary and the Czech and Slovak Federal
Republic dated 23 November 1992 (damming up of the Danube at river kilometre
1851.7 on Czechoslovak territory and resulting consequences on water and
navigation course)".
61. The Court will recall that, as soon as Hungary suspended the works at
Nagymaros on 13 May 1989 and extended that suspension to certain works to be
carried out at Dunakiliti, Czechoslovakia informed Hungary that it would
feel compelled to take unilateral measures if Hungary were to persist in its
refusal to resume the works. This was inter alia expressed as follows in
Czechoslovakia's Note Verbale of 30 October 1989 to which reference is made
in paragraph 37 above:
"Should the Republic of Hungary fail to meet its liabilities and continue
unilaterally to breach the Treaty and related legal documents then the
Czechoslovak party will be forced to commence a provisional, substitute
project on the territory of the Czechoslovak Socialist Republic in order to
prevent further losses. Such a provisional project would entail directing as
much water into the Gabcikovo dam as agreed in the Joint Construction Plan."
As the Court has already indicated (see paragraph 23 above), various
alternative solutions were contemplated by Czechoslovakia. In September
1990, the Hungarian authorities were advised of seven hypothetical
alternatives defined by the firm of Hydroconsult of Bratislava. All of those
solutions implied an agreement between the parties, with the exception of
one variant, subsequently known as "Variant C", which was presented as a
provisional solution which could be brought about without Hungarian
co-operation. Other contacts between the parties took place, without leading
to a settlement of the dispute. In March 1991, Hungary acquired information
according to which perceptible progress had been made in finalizing the
planning of Variant C; it immediately gave expression to the concern this
caused.
62. Inter-governmental negotiation meetings were held on 22 April and 15
July 1991.
On 22 April 1991, Hungary proposed the suspension, until September 1993, of
all the works begun on the basis of the 1977 Treaty, on the understanding
that the parties undertook to abstain from any unilateral action, and that
joint studies would be carried out in the interval. Czechoslovakia
maintained its previous position according to which the studies contemplated
should take place within the framework of the 1977 Treaty and without any
suspension of the works.
On 15 July 1991, Czechoslovakia confirmed its intention of putting the [p48] Gabcikovo power plant into service and indicated that the available data
enabled the effects of four possible scenarios to be assessed, each of them
requiring the co-operation of the two Governments. At the same time, it
proposed the setting up of a tripartite committee of experts (Hungary,
Czechoslovakia, European Communities) which would help in the search for
technical solutions to the problems arising from the entry into operation of
the Gabcikovo sector. Hungary, for its part, took the view that
"In the case of a total lack of understanding the so-called C variation or
'theoretical opportunity' suggested by the Czecho-Slovak party as a
unilateral solution would be such a grave transgression of Hungarian
territorial integrity and International Law for which there is no precedent
even in the practices of the formerly socialist countries for the past 30
years";
it further proposed the setting up of a bilateral committee for the
assessment of environmental consequences, subject to work on Czechoslovak
territory being suspended.
63. By a letter dated 24 July 1991, the Government of Hungary communicated
the following message to the Prime Minister of Slovakia:
"Hungarian public opinion and the Hungarian Government anxiously and
attentively follows the [Czechoslovakian] press reports of the unilateral
steps of the Government of the Slovak Republic in connection with the
barrage system.
The preparatory works for diverting the water of the Danube near the
Dunakiliti dam through unilaterally are also alarming. These steps are
contrary to the 1977 Treaty and to the good relationship between our
nations."
On 30 July 1991 the Slovak Prime Minister informed the Hungarian Prime
Minister of
"the decision of the Slovak Government and of the Czech and Slovak Federal
Government to continue work on the Gabcikovo power plant, as a provisional
solution, which is aimed at the commencement of operations on the territory
of the Czech and Slovak Federal Republic".
On the same day, the Government of Hungary protested, by a Note Verbale,
against the filling of the headrace canal by the Czechoslovak construction
company, by pumping water from the Danube.
By a letter dated 9 August 1991 and addressed to the Prime Minister of
Slovakia, the Hungarian authorities strenuously protested against "any
unilateral step that would be in contradiction with the interests of our
[two] nations and international law" and indicated that they considered it
"very important [to] receive information as early as possible on the [p49]
details of the provisional solution". For its part, Czechoslovakia, in a
Note Verbale dated 27 August 1991, rejected the argument of Hungary that the
continuation of the works under those circumstances constituted a violation
of international law, and made the following proposal:
"Provided the Hungarian side submits a concrete technical solution aimed at
putting into operation the Gabcikovo system of locks and a solution of the
system of locks based on the 1977 Treaty in force and the treaty documents
related to it, the Czechoslovak side is prepared to implement the mutually
agreed solution."
64. The construction permit for Variant C was issued on 30 October 1991. In
November 1991 construction of a dam started at Cunovo, where both banks of
the Danube are on Czechoslovak (now Slovak) territory.
In the course of a new inter-governmental negotiation meeting, on 2 December
1991, the parties agreed to entrust the task of studying the whole of the
question of the Gabcikovo-Nagymaros Project to a Joint Expert Committee
which Hungary agreed should be complemented with an expert from the European
Communities. However whereas, for Hungary, the work of that Committee would
have been meaningless if Czechoslovakia continued construction of Variant C,
for Czechoslovakia, the suspension of the construction, even on a temporary
basis, was unacceptable.
That meeting was followed by a large number of exchanges of letters between
the parties and various meetings between their representatives at the end of
1991 and early in 1992. On 23 January 1992, Czechoslovakia expressed its
readiness "to stop work on the provisional solution and continue the
construction upon mutual agreement" if the tripartite committee of experts
whose constitution it proposed, and the results of the test operation of the
Gabcikovo part, were to "confirm that negative ecological effects exceed its
benefits". However, the positions of the parties were by then
comprehensively defined, and would scarcely develop any further. Hungary
considered, as it indicated in a Note Verbale of 14 February 1992, that
Variant C was in contravention
"of [the Treaty of 1977] . . . and the convention ratified in 1976 regarding
the water management of boundary waters.
with the principles of sovereignty, territorial integrity, with the
inviolability of State borders, as well as with the general customary norms
on international rivers and the spirit of the 1948 Belgrade Danube
Convention";
and the suspension of the implementation of Variant C was, in its view, a
prerequisite. As for Czechoslovakia, it took the view that recourse to
Variant C had been rendered inevitable, both for economic and ecologi-[p50]cal as well as navigational reasons, because of the unlawful suspension
and abandonment by Hungary of the works for which provision was made in the
1977 Treaty. Any negotiation had, in its view, to be conducted within the
framework of the Treaty and without the implementation of Variant C --
described as "provisional" -- being called into question.
65. On 5 August 1992, the Czechoslovak representative to the Danube
Commission informed it that "work on the severance cutting through of the
Danube's flow will begin on 15 October 1992 at the 1,851.759-kilometre line"
and indicated the measures that would be taken at the time of the
"severance". The Hungarian representative on the Commission protested on 17
August 1992, and called for additional explanations.
During the autumn of 1992, the implementation of Variant C was stepped up.
The operations involved in damming the Danube at Cunovo had been scheduled
by Czechoslovakia to take place during the second half of October 1992, at a
time when the waters of the river are generally at their lowest level. On
the initiative of the Commission of the European Communities, trilateral
negotiations took place in Brussels on 21 and 22 October 1992, with a view
to setting up a committee of experts and defining its terms of reference. On
that date, the first phase of the operations leading to the damming of the
Danube (the reinforcement of the riverbed and the narrowing of the principal
channel) had been completed. The closure of the bed was begun on 23 October
1992 and the construction of the actual dam continued from 24 to 27 October
1992: a pontoon bridge was built over the Danube on Czechoslovak territory
using river barges, large stones were thrown into the riverbed and
reinforced with concrete, while 80 to 90 percent of the waters of the Danube
were directed into the canal designed to supply the Gabcikovo power plant.
The implementation of Variant C did not, however, come to an end with the
diversion of the waters, as there still remained outstanding both
reinforcement work on the dam and the building of certain auxiliary
structures.
The Court has already referred in paragraph 24 above to the meeting held in
London on 28 October 1992 under the auspices of the European Communities, in
the course of which the parties to the negotiations agreed, inter alia, to
entrust a tripartite Working Group composed of independent experts (i.e.,
four experts designated by the European Commission, one designated by
Hungary and another by Czechoslovakia) with the task of reviewing the
situation created by the implementation of Variant C and making proposals as
to urgent measures to adopt. After having worked for one week in Bratislava
and one week in Budapest, the Working Group filed its report on 23 November
1992.
66. A summary description of the constituent elements of Variant C appears
at paragraph 23 of the present Judgment. For the purposes of the question
put to the Court, the official description that should be adopted is,
according to Article 2, paragraph 1 (b), of the Special Agreement, the one
given in the aforementioned report of the Working Group [p51] of
independent experts, and it should be emphasized that, according to the
Special Agreement, "Variant C" must be taken to include the consequences "on
water and navigation course" of the dam closing off the bed of the Danube.
In the section headed "Variant C Structures and Status of Ongoing Work", one
finds, in the report of the Working Group, the following passage:
"In both countries the original structures for the Gabcikovo scheme are
completed except for the closure of the Danube river at Dunakiliti and the
(1) Completion of the hydropower station (installation and testing of
turbines) at Gabcikovo.
Variant C consists of a complex of structures, located in Czecho-Slovakia .
. . The construction of these are planned for two phases. The structures
include . . . :
(2) By-pass weir controlling the flow into the river Danube.
(3) Dam closing the Danubian river bed.
(4) Floodplain weir (weir in the inundation).
(5) Intake structure for the Mosoni Danube.
(6) Intake structure in the power canal.
(7) Earth barrages/dykes connecting structures.
(8) Ship lock for smaller ships (15 m x 80 m).
(9) Spillway weir.
(10) Hydropower station.
The construction of the structures 1-7 are included in Phase 1, while the
remaining 8-10 are a part of Phase 2 scheduled for construction 1993-1995."
**
67. Czechoslovakia had maintained that proceeding to Variant C and putting
it into operation did not constitute internationally wrongful acts; Slovakia
adopted this argument. During the proceedings before the Court Slovakia
contended that Hungary's decision to suspend and subsequently abandon the
construction of works at Dunakiliti had made it impossible for
Czechoslovakia to carry out the works as initially contemplated by the 1977
Treaty and that the latter was therefore entitled to proceed with a solution
which was as close to the original Project as possible. Slovakia invoked
what it described as a "principle of approximate application" to justify the
construction and operation of Variant C. It explained that this was the only
possibility remaining to it "of fulfilling not only the purposes of the 1977
Treaty, but the continuing obligation to implement it in good faith".
68. Slovakia also maintained that Czechoslovakia was under a duty to
mitigate the damage resulting from Hungary's unlawful actions. It claimed [p52] that a State which is confronted with a wrongful act of another State is
under an obligation to minimize its losses and, thereby, the damages
claimable against the wrong-doing State. It argued furthermore that
"Mitigation of damages is also an aspect of the performance of obligations
in good faith." For Slovakia, these damages would have been immense in the
present case, given the investments made and the additional economic and
environmental prejudice which would have resulted from the failure to
complete the works at Dunakiliti/Gabcikovo and to put the system into
operation. For this reason, Czechoslovakia was not only entitled, but even
obliged, to implement Variant C.
69. Although Slovakia maintained that Czechoslovakia's conduct was lawful,
it argued in the alternative that, even were the Court to find otherwise,
the putting into operation of Variant C could still be justified as a
countermeasure.
70. Hungary for its part contended that Variant C was a material breach of
the 1977 Treaty. It considered that Variant C also violated Czechoslovakia's
obligations under other treaties, in particular the Convention of 31 May
1976 on the Regulation of Water Management Issues of Boundary Waters
concluded at Budapest, and its obligations under general international law.
71. Hungary contended that Slovakia's arguments rested on an erroneous
presentation of the facts and the law. Hungary denied, inter alia, having
committed the slightest violation of its treaty obligations which could have
justified the putting into operation of Variant C. It considered that "no
such rule" of "approximate application" of a treaty exists in international
law; as to the argument derived from "mitigation of damage[s]", it claimed
that this has to do with the quantification of loss, and could not serve to
excuse conduct which is substantively unlawful. Hungary furthermore stated
that Variant C did not satisfy the conditions required by international law
for countermeasures, in particular the condition of proportionality.
**
72. Before dealing with the arguments advanced by the Parties, the Court
wishes to make clear that it is aware of the serious problems with which
Czechoslovakia was confronted as a result of Hungary's decision to
relinquish most of the construction of the System of Locks for which it was
responsible by virtue of the 1977 Treaty. Vast investments had been made,
the construction at Gabcikovo was all but finished, the bypass canal was
completed, and Hungary itself, in 1991, had duly fulfilled its obligations
under the Treaty in this respect in completing work on the tailrace canal.
It emerges from the report, dated 31 October 1992, of the tripartite
fact-finding mission the Court has referred to in paragraph 24 of the
present Judgment, that not using the system would have [p53] led to
considerable financial losses, and that it could have given rise to serious
problems for the environment.
73. Czechoslovakia repeatedly denounced Hungary's suspension and abandonment
of works as a fundamental breach of the 1977 Treaty and consequently could
have invoked this breach as a ground for terminating the Treaty; but this
would not have brought the Project any nearer to completion. It therefore
chose to insist on the implementation of the Treaty by Hungary, and on many
occasions called upon the latter to resume performance of its obligations
under the Treaty.
When Hungary steadfastly refused to do so -- although it had expressed its
willingness to pay compensation for damage incurred by Czechoslovakia -- and
when negotiations stalled owing to the diametrically opposed positions of
the parties, Czechoslovakia decided to put the Gabcikovo system into
operation unilaterally, exclusively under its own control and for its own
benefit.
74. That decision went through various stages and, in the Special Agreement,
the Parties asked the Court to decide whether Czechoslovakia "was entitled
to proceed, in November 1991" to Variant C, and "to put [it] into operation
from October 1992".
75. With a view to justifying those actions, Slovakia invoked what it
described as "the principle of approximate application", expressed by Judge
Sir Hersch Lauterpacht in the following terms:
"It is a sound principle of law that whenever a legal instrument of
continuing validity cannot be applied literally owing to the conduct of one
of the parties, it must, without allowing that party to take advantage of
its own conduct, be applied in a way approximating most closely to its
primary object. To do that is to interpret and to give effect to the
instrument -- not to change it." (Admissibility of Hearings of Petitioners
by the Committee on South West Africa, separate opinion of Sir Hersch
Lauterpacht, I.C.J. Reports 1956, p. 46.)
It claimed that this is a principle of international law and a general
principle of law.
76. It is not necessary for the Court to determine whether there is a
principle of international law or a general principle of law of "approximate
application" because, even if such a principle existed, it could by
definition only be employed within the limits of the treaty in question. In
the view of the Court, Variant C does not meet that cardinal condition with
regard to the 1977 Treaty.
77. As the Court has already observed, the basic characteristic of the 1977
Treaty is, according to Article 1, to provide for the construction of the
Gabcikovo-Nagymaros System of Locks as a joint investment constituting a
single and indivisible operational system of works. This element is equally
reflected in Articles 8 and 10 of the Treaty providing for joint ownership
of the most important works of the Gabcikovo-Nagymaros project and for the
operation of this joint property as a co-ordinated single unit. By
definition all this could not be carried [p54] out by unilateral action. In
spite of having a certain external physical similarity with the original
Project, Variant C thus differed sharply from it in its legal
characteristics.
78. Moreover, in practice, the operation of Variant C led Czechoslovakia to
appropriate, essentially for its use and benefit, between 80 and 90 per cent
of the waters of the Danube before returning them to the main bed of the
river, despite the fact that the Danube is not only a shared international
watercourse but also an international boundary river.
Czechoslovakia submitted that Variant C was essentially no more than what
Hungary had already agreed to and that the only modifications made were
those which had become necessary by virtue of Hungary's decision not to
implement its treaty obligations. It is true that Hungary, in concluding the
1977 Treaty, had agreed to the damming of the Danube and the diversion of
its waters into the bypass canal. But it was only in the context of a joint
operation and a sharing of
its benefits that Hungary had given its consent. The suspension and
withdrawal of that consent constituted a violation of Hungary's legal
obligations, demonstrating, as it did, the refusal by Hungary of joint
operation; but that cannot mean that Hungary forfeited its basic right to an
equitable and reasonable sharing of the resources of an international
watercourse.
The Court accordingly concludes that Czechoslovakia, in putting Variant C
into operation, was not applying the 1977 Treaty but, on the contrary,
violated certain of its express provisions, and, in so doing, committed an
internationally wrongful act.
79. The Court notes that between November 1991 and October 1992,
Czechoslovakia confined itself to the execution, on its own territory, of
the works which were necessary for the implementation of Variant C, but
which could have been abandoned if an agreement had been reached between the
parties and did not therefore predetermine the final decision to be taken.
For as long as the Danube had not been unilaterally dammed, Variant C had
not in fact been applied.
Such a situation is not unusual in international law or, for that matter, in
domestic law. A wrongful act or offence is frequently preceded by
preparatory actions which are not to be confused with the act or offence
itself. It is as well to distinguish between the actual commission of a
wrongful act (whether instantaneous or continuous) and the conduct prior to
that act which is of a preparatory character and which "does not qualify as
a wrongful act" (see for example the Commentary on Article 41 of the Draft
Articles on State Responsibility, "Report of the International Law
Commission on the work of its forty-eighth session, 6 May-26 July 1996",
Official Records of the General Assembly, Fifty-first Session, Supplement
No. 10 (A/51/10), p. 141 and Yearbook of the International Law Commission,
1993, Vol. II, Part 2, p. 57, para. 14).
*[p55]
80. Slovakia also maintained that it was acting under a duty to mitigate
damages when it carried out Variant C. It stated that "It is a general
principle of international law that a party injured by the non-performance
of another contract party must seek to mitigate the damage he has
sustained."
It would follow from such a principle that an injured State which has failed
to take the necessary measures to limit the damage sustained would not be
entitled to claim compensation for that damage which could have been
avoided. While this principle might thus provide a basis for the calculation
of damages, it could not, on the other hand, justify an otherwise wrongful
act.
81. Since the Court has found that the putting into operation of Variant C
constituted an internationally wrongful act, the duty to mitigate damage
invoked by Slovakia does not need to be examined further.
*
82. Although it did not invoke the plea of countermeasures as a primary
argument, since it did not consider Variant C to be unlawful, Slovakia
stated that "Variant C could be presented as a justified countermeasure to
Hungary's illegal acts".
The Court has concluded, in paragraph 78 above, that Czechoslovakia
committed an internationally wrongful act in putting Variant C into
operation. Thus, it now has to determine whether such wrongfulness may be
precluded on the ground that the measure so adopted was in response to
Hungary's prior failure to comply with its obligations under international
law.
83. In order to be justifiable, a countermeasure must meet certain
conditions (see Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America) Merits, Judgment, I.C.J.
Reports 1986, p. 127, para. 249. See also Arbitral Award of 9 December 1978
in the case concerning the Air Service Agreement of 27 March 1946 between
the United States of America and France, United Nations, Reports of
International Arbitral Awards (RIAA), Vol. XVIII, pp. 443 et seq.; also
Articles 47 to 50 of the Draft Articles on State Responsibility adopted by
the International Law Commission on first reading, "Report of the
International Law Commission on the work of its forty-eighth session, 6
May-26 July 1996", Official Records of the General Assembly, Fifty-first
Session, Supplement No. 10 (A/51/10), pp. 144-145.)
In the first place it must be taken in response to a previous international
wrongful act of another State and must be directed against that State.
Although not primarily presented as a countermeasure, it is clear that
Variant C was a response to Hungary's suspension and abandon-[p56]ment of
works and that it was directed against that State; and it is equally clear,
in the Court's view, that Hungary's actions were internationally wrongful.
84. Secondly, the injured State must have called upon the State committing
the wrongful act to discontinue its wrongful conduct or to make reparation
for it. It is clear from the facts of the case, as recalled above by the
Court (see paragraphs 61 et seq.), that Czechoslovakia requested Hungary to
resume the performance of its treaty obligations on many occasions.
85. In the view of the Court, an important consideration is that the effects
of a countermeasure must be commensurate with the injury suffered, taking
account of the rights in question.
In 1929, the Permanent Court of International Justice, with regard to
navigation on the River Oder, stated as follows:
"[the] community of interest in a navigable river becomes the basis of a
common legal right, the essential features of which are the perfect equality
of all riparian States in the user of the whole course of the river and the
exclusion of any preferential privilege of any one riparian State in
relation to the others" (Territorial Jurisdiction of the International
Commission of the River Oder, Judgment No. 16, 1929, P.C.I.J., Series A, No.
23, p. 27).
Modern development of international law has strengthened this principle for
non-navigational uses of international watercourses as well, as evidenced by
the adoption of the Convention of 21 May 1997 on the Law of the
Non-Navigational Uses of International Watercourses by the United Nations
General Assembly.
The Court considers that Czechoslovakia, 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 --
with the continuing effects of the diversion of these waters on the ecology
of the riparian area of the Szigetkoz -- failed to respect the
proportionality which is required by international law.
86. Moreover, as the Court has already pointed out (see paragraph 78), the
fact that Hungary had agreed in the context of the original Project to the
diversion of the Danube (and, in the Joint Contractual Plan, to a
provisional measure of withdrawal of water from the Danube) cannot be
understood as having authorized Czechoslovakia to proceed with a unilateral
diversion of this magnitude without Hungary's consent.
87. The Court thus considers that the diversion of the Danube carried out by
Czechoslovakia was not a lawful countermeasure because it was not
proportionate. It is therefore not required to pass upon one other condition
for the lawfulness of a countermeasure, namely that its purpose must be to
induce the wrongdoing State to comply with its oblige-[p57]tions under
international law, and that the measure must therefore be reversible.
**
88. In the light of the conclusions reached above, the Court, in reply to
the question put to it in Article 2, paragraph 1 (b), of the Special
Agreement (see paragraph 60), finds that Czechoslovakia was entitled to
proceed, in November 1991, to Variant C in so far as it then confined itself
to undertaking works which did not predetermine the final decision to be
taken by it. On the other hand, Czechoslovakia was not entitled to put that
Variant into operation from October 1992.
***
89. By the terms of Article 2, paragraph 1 (c), of the Special Agreement,
the Court is asked, thirdly, to determine
"what are the legal effects of the notification, on 19 May 1992, of the
termination of the Treaty by the Republic of Hungary".
The Court notes that it has been asked to determine what are the legal
effects of the notification given on 19 May 1992 of the termination of the
Treaty. It will consequently confine itself to replying to this question.
90. The Court will recall that, by early 1992, the respective parties to the
1977 Treaty had made clear their positions with regard to the recourse by
Czechoslovakia to Variant C. Hungary in a Note Verbale of 14 February 1992
had made clear its view that Variant C was a contravention of the 1977
Treaty (see paragraph 64 above); Czechoslovakia insisted on the
implementation of Variant C as a condition for further negotiation. On 26
February 1992, in a letter to his Czechoslovak counterpart, the Prime
Minister of Hungary described the impending diversion of the Danube as "a
serious breach of international law" and stated that, unless work was
suspended while further enquiries took place, "the Hungarian Government
[would] have no choice but to respond to this situation of necessity by
terminating the 1977 inter-State Treaty". In a Note Verbale dated 18 March
1992, Czechoslovakia reaffirmed that, while it was prepared to continue
negotiations "on every level", it could not agree "to stop all work on the
provisional solution".
On 24 March 1992, the Hungarian Parliament passed a resolution authorizing
the Government to terminate the 1977 Treaty if Czechoslovakia did not stop
the works by 30 April 1992. On 13 April 1992, the Vice-President of the
Commission of the European Communities wrote to both parties confirming the
willingness of the Commission to chair a committee of independent experts
including representatives of the two countries, in order to assist the two
Governments in identifying a mutu-[p58]ally acceptable solution. Commission
involvement would depend on each Government not taking "any steps . . .
which would prejudice possible actions to be undertaken on the basis of the
report's findings". The Czechoslovak Prime Minister stated in a letter to
the Hungarian Prime Minister dated 23 April 1992, that his Government
continued to be interested in the establishment of the proposed committee
"without any preliminary conditions"; criticizing Hungary's approach, he
refused to suspend work on the provisional solution, but added, "in my
opinion, there is still time, until the damming of the Danube (i.e., until
October 31, 1992), for resolving disputed questions on the basis of
agreement of both States".
On 7 May 1992, Hungary, in the very resolution in which it decided on the
termination of the Treaty, made a proposal, this time to the Slovak Prime
Minister, for a six-month suspension of work on Variant C. The Slovak Prime
Minister replied that the Slovak Government remained ready to negotiate, but
considered preconditions "inappropriate".
91. On 19 May 1992, the Hungarian Government transmitted to the Czechoslovak
Government a Declaration notifying it of the termination by Hungary of the
1977 Treaty as of 25 May 1992. In a letter of the same date from the
Hungarian Prime Minister to the Czechoslovak Prime Minister, the immediate
cause for termination was specified to be Czechoslovakia's refusal,
expressed in its letter of 23 April 1992, to suspend the work on Variant C
during mediation efforts of the Commission of the European Communities. In
its Declaration, Hungary stated that it could not accept the deleterious
effects for the environment and the conservation of nature of the
implementation of Variant C which would be practically equivalent to the
dangers caused by the realization of the original Project. It added that
Variant C infringed numerous international agreements and violated the
territorial integrity of the Hungarian State by diverting the natural course
of the Danube.
**
92. During the proceedings, Hungary presented five arguments in support of
the lawfulness, and thus the effectiveness, of its notification of
termination. These were the existence of a state of necessity; the
impossibility of performance of the Treaty; the occurrence of a fundamental
change of circumstances; the material breach of the Treaty by
Czechoslovakia; and, finally, the development of new norms of international
environmental law. Slovakia contested each of these grounds.
93. On the first point, Hungary stated that, as Czechoslovakia had "remained
inflexible" and continued with its implementation of Variant C, "a temporary
state of necessity eventually became permanent, justifying termination of
the 1977 Treaty".
Slovakia, for its part, denied that a state of necessity existed on the [p59] basis of what it saw as the scientific facts; and argued that even if
such a state of necessity had existed, this would not give rise to a right
to terminate the Treaty under the Vienna Convention of 1969 on the Law of
Treaties.
94. Hungary's second argument relied on the terms of Article 61 of the
Vienna Convention, which is worded as follows:
"Article 61
Supervening impossibility of performance
1. A party may invoke the impossibility of performing a treaty as a ground
for terminating or withdrawing from it if the impossibility results from the
permanent disappearance or destruction of an object indispensable for the
execution of the treaty. If the impossibility is temporary, it may be
invoked only as a ground for suspending the operation of the treaty.
2. Impossibility of performance may not be invoked by a party as a ground
for terminating, withdrawing from or suspending the operation of a treaty if
the impossibility is the result of a breach by that party either of an
obligation under the treaty or of any other international obligation owed to
any other party to the treaty."
Hungary declared that it could not be "obliged to fulfil a practically
impossible task, namely to construct a barrage system on its own territory
that would cause irreparable environmental damage". It concluded that
"By May 1992 the essential object of the Treaty -- an economic joint
investment which was consistent with environmental protection and which was
operated by the two parties jointly -- had permanently disappeared, and the
Treaty had thus become impossible to perform."
In Hungary's view, the "object indispensable for the execution of the
treaty", whose disappearance or destruction was required by Article 61 of
the Vienna Convention, did not have to be a physical object, but could also
include, in the words of the International Law Commission, "a legal
situation which was the raison d'etre of the rights and obligations".
Slovakia claimed that Article 61 was the only basis for invoking
impossibility of performance as a ground for termination, that paragraph 1
of that Article clearly contemplated physical "disappearance or destruction"
of the object in question, and that, in any event, paragraph 2 precluded the
invocation of impossibility "if the impossibility is the result of a breach
by that party . . . of an obligation under the treaty".
95. As to "fundamental change of circumstances", Hungary relied on Article
62 of the Vienna Convention on the Law of Treaties which states as follows:
"Article 62
Fundamental change of circumstances
1. A fundamental change of circumstances which has occurred with regard to
those existing at the time of the conclusion of a treaty, and which was not
foreseen by the parties, may not be invoked as a ground for terminating or
withdrawing from the treaty unless:
(a) the existence of those circumstances constituted an essential basis of
the consent of the parties to be bound by the treaty; and
(b) the effect of the change is radically to transform the extent of
obligations still to be performed under the treaty.
2. A fundamental change of circumstances may not be invoked as a ground for
terminating or withdrawing from a treaty:
(a) if the treaty establishes a boundary; or
(b) if the fundamental change is the result of a breach by the party
invoking it either of an obligation under the treaty or of any other
international obligation owed to any other party to the treaty.
3. If, under the foregoing paragraphs, a party may invoke a fundamental
change of circumstances as a ground for terminating or withdrawing from a
treaty it may also invoke the change as a ground for suspending the
operation of the treaty."
Hungary identified a number of "substantive elements" present at the
conclusion of the 1977 Treaty which it said had changed fundamentally by the
date of notification of termination. These included the notion of "socialist
integration", for which the Treaty had originally been a "vehicle", but
which subsequently disappeared; the "single and indivisible operational
system", which was to be replaced by a unilateral scheme; the fact that the
basis of the planned joint investment had been overturned by the sudden
emergence of both States into a market economy; the attitude of
Czechoslovakia which had turned the "framework treaty" into an "immutable
norm"; and, finally, the transformation of a treaty consistent with
environmental protection into "a prescription for environmental disaster".
Slovakia, for its part, contended that the changes identified by Hungary had
not altered the nature of the obligations under the Treaty from those
originally undertaken, so that no entitlement to terminate it arose from
them.
96. Hungary further argued that termination of the Treaty was justified by
Czechoslovakia's material breaches of the Treaty, and in this regard it
invoked Article 60 of the Vienna Convention on the Law of Treaties, which
provides:[p61]
"Article 60
Termination or suspension of the operation of a treaty as a consequence of
its breach
1. A material breach of a bilateral treaty by one of the parties entitles
the other to invoke the breach as a ground for terminating the treaty or
suspending its operation in whole or in part.
2. A material breach of a multilateral treaty by one of the parties
entitles:
(a) the other parties by unanimous agreement to suspend the operation of the
treaty in whole or in part or to terminate it either:
(i) in the relations between themselves and the defaulting State, or
(ii) as between all the parties;
(b) a party specially affected by the breach to invoke it as a ground for
suspending the operation of the treaty in whole or in part in the relations
between itself and the defaulting State;
(c) any party other than the defaulting State to invoke the breach as a
ground for suspending the operation of the treaty in whole or in part with
respect to itself if the treaty is of such a character that a material
breach of its provisions by one party radically changes the position of
every party with respect to the further performance of its obligations under
the treaty.
3. A material breach of a treaty, for the purposes of this article, consists
in:
(a) a repudiation of the treaty not sanctioned by the present Convention; or
(b) the violation of a provision essential to the accomplishment of the
object or purpose of the treaty.
4. The foregoing paragraphs are without prejudice to any provision in the
treaty applicable in the event of a breach.
5. Paragraphs 1 to 3 do not apply to provisions relating to the protection
of the human person contained in treaties of a humanitarian character, in
particular to provisions prohibiting any form of reprisals against persons
protected by such treaties."
Hungary claimed in particular that Czechoslovakia violated the 1977 Treaty
by proceeding to the construction and putting into operation of Variant C,
as well as failing to comply with its obligations under Articles 15 and 19
of the Treaty. Hungary further maintained that Czechoslovakia had breached
other international conventions (among them the Convention of 31 May 1976 on
the Regulation of Water Management Issues of Boundary Waters) and general
international law. [p62]
Slovakia denied that there had been, on the part of Czechoslovakia or on its
part, any material breach of the obligations to protect water quality and
nature, and claimed that Variant C, far from being a breach, was devised as
"the best possible approximate application" of the Treaty. It furthermore
denied that Czechoslovakia had acted in breach of other international
conventions or general international law.
97. Finally, Hungary argued that subsequently imposed requirements of
international law in relation to the protection of the environment precluded
performance of the Treaty. The previously existing obligation not to cause
substantive damage to the territory of another State had, Hungary claimed,
evolved into an erga omnes obligation of prevention of damage pursuant to
the "precautionary principle". On this basis, Hungary argued, its
termination was "forced by the other party's refusal to suspend work on
Variant C".
Slovakia argued, in reply, that none of the intervening developments in
environmental law gave rise to norms of jus cogens that would override the
Treaty. Further, it contended that the claim by Hungary to be entitled to
take action could not in any event serve as legal justification for
termination of the Treaty under the law of treaties, but belonged rather "to
the language of self-help or reprisals".
**
98. The question, as formulated in Article 2, paragraph 1 (c), of the
Special Agreement, deals with treaty law since the Court is asked to
determine what the legal effects are of the notification of termination of
the Treaty. The question is whether Hungary's notification of 19 May 1992
brought the 1977 Treaty to an end, or whether it did not meet the
requirements of international law, with the consequence that it did not
terminate the Treaty.
99. The Court has referred earlier to the question of the applicability to
the present case of the Vienna Convention of 1969 on the Law of Treaties.
The Vienna Convention is not directly applicable to the 1977 Treaty inasmuch
as both States ratified that Convention only after the Treaty's conclusion.
Consequently only those rules which are declaratory of customary law are
applicable to the 1977 Treaty. As the Court has already stated above (see
paragraph 46), this is the case, in many respects, with Articles 60 to 62 of
the Vienna Convention, relating to termination or suspension of the
operation of a treaty. On this, the Parties, too, were broadly in agreement.
100. The 1977 Treaty does not contain any provision regarding its
termination. Nor is there any indication that the parties intended to admit
the possibility of denunciation or withdrawal. On the contrary, the Treaty
establishes a long-standing and durable regime of joint investment [p63]
and joint operation. Consequently, the parties not having agreed otherwise,
the Treaty could be terminated only on the limited grounds enumerated in the
Vienna Convention.
*
101. The Court will now turn to the first ground advanced by Hungary, that
of the state of necessity. In this respect, the Court will merely observe
that, even if a state of necessity is found to exist, it is not a ground for
the termination of a treaty. It may only be invoked to exonerate from its
responsibility a State which has failed to implement a treaty. Even if found
justified, it does not terminate a Treaty; the Treaty may be ineffective as
long as the condition of necessity continues to exist; it may in fact be
dormant, but -- unless the parties by mutual agreement terminate the Treaty
-- it continues to exist. As soon as the state of necessity ceases to exist,
the duty to comply with treaty obligations revives.
*
102. Hungary also relied on the principle of the impossibility of
performance as reflected in Article 61 of the Vienna Convention on the Law
of Treaties. Hungary's interpretation of the wording of Article 61 is,
however, not in conformity with the terms of that Article, nor with the
intentions of the Diplomatic Conference which adopted the Convention.
Article 61, paragraph 1, requires the "permanent disappearance or
destruction of an object indispensable for the execution" of the treaty to
justify the termination of a treaty on grounds of impossibility of
performance. During the conference, a proposal was made to extend the scope
of the article by including in it cases such as the impossibility to make
certain payments because of serious financial difficulties (Official Records
of the United Nations Conference on the Law of Treaties, First Session,
Vienna, 26 March-24 May 1968, Doc. A/CONF.39/11, Summary records of the
plenary meetings and of the meetings of the Committee of the Whole, 62nd
Meeting of the Committee of the Whole, pp. 361-365). Although it was
recognized that such situations could lead to a preclusion of the
wrongfulness of non-performance by a party of its treaty obligations, the
participating States were not prepared to consider such situations to be a
ground for terminating or suspending a treaty, and preferred to limit
themselves to a narrower concept.
103. Hungary contended that the essential object of the Treaty -- an
economic joint investment which was consistent with environmental protection
and which was operated by the two contracting parties jointly -- had
permanently disappeared and that the Treaty had thus become impossible to
perform. It is not necessary for the Court to determine whether the term
"object" in Article 61 can also be understood to embrace a legal regime as
in any event, even if that were the case, it [p64] would have to conclude
that in this instance that regime had not definitively ceased to exist. The
1977 Treaty -- and in particular its Articles 15, 19 and 20 -- actually made
available to the parties the necessary means to proceed at any time, by
negotiation, to the required readjustments between economic imperatives and
ecological imperatives. The Court would add that, if the joint exploitation
of the investment was no longer possible, this was originally because
Hungary did not carry out most of the works for which it was responsible
under the 1977 Treaty; Article 61, paragraph 2, of the Vienna Convention
expressly provides that impossibility of performance may not be invoked for
the termination of a treaty by a party to that treaty when it results from
that party's own breach of an obligation flowing from that treaty.
*
104. Hungary further argued that it was entitled to invoke a number of
events which, cumulatively, would have constituted a fundamental change of
circumstances. 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 (see paragraph 95 above).
The Court recalls that, in the Fisheries Jurisdiction case (I.C.J. Reports
1973, p. 63, para. 36), it stated that,
"Article 62 of the Vienna Convention on the Law of Treaties, . . . may in
many respects be considered as a codification of existing customary law on
the subject of the termination of a treaty relationship on account of change
of circumstances".
The prevailing political situation was certainly relevant for the conclusion
of the 1977 Treaty. But the Court will recall that the Treaty provided for a
joint investment programme for the production of energy, the control of
floods and the improvement of navigation on the Danube. In the Court's view,
the prevalent political conditions were thus not so closely linked to the
object and purpose of the Treaty that they constituted an essential basis of
the consent of the parties and, in changing, radically altered the extent of
the obligations still to be performed. The same holds good for the economic
system in force at the time of the conclusion of the 1977 Treaty. Besides,
even though the estimated profitability of the Project might have appeared
less in 1992 than in 1977, it does not appear from the record before the
Court that it was bound to diminish to such an extent that the treaty
obligations of the parties would have been radically transformed as a
result.
The Court does not consider that new developments in the state of [p65]
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.
*
105. The Court will now examine Hungary's argument that it was entitled to
terminate the 1977 Treaty on the ground that Czechoslovakia had violated its
Articles 15, 19 and 20 (as well as a number of other conventions and rules
of general international law); and that the planning, construction and
putting into operation of Variant C also amounted to a material breach of
the 1977 Treaty.
106. As to that part of Hungary's argument which was based on other treaties
and general rules of international law, the Court is of the view that it is
only a material breach of the treaty itself, by a State party to that
treaty, which entitles the other party to rely on it as a ground for
terminating the treaty. The violation of other treaty rules or of rules of
general international law may justify the taking of certain measures,
including countermeasures, by the injured State, but it does not constitute
a ground for termination under the law of treaties.
107. Hungary contended that Czechoslovakia had violated Articles 15, 19 and
20 of the Treaty by refusing to enter into negotiations with Hungary in
order to adapt the Joint Contractual Plan to new scientific and legal
developments regarding the environment. Articles 15, 19 and 20 oblige the
parties jointly to take, on a continuous basis, appropriate measures
necessary for the protection of water quality, of nature and of fishing
interests.
Articles 15 and 19 expressly provide that the obligations they contain shall
be implemented by the means specified in the Joint Contractual Plan. The
failure of the parties to agree on those means cannot, on the basis of the
record before the Court, be attributed solely to one party. [p66] The Court
has not found sufficient evidence to conclude that Czechoslovakia had
consistently refused to consult with Hungary about the desirability or
necessity of measures for the preservation of the environment. The record
rather shows that, while both parties indicated, in principle, a willingness
to undertake further studies, in practice Czechoslovakia refused to
countenance a suspension of the works at Dunakiliti and, later, on Variant
C, while Hungary required suspension as a prior condition of environmental
investigation because it claimed continuation of the work would prejudice
the outcome of negotiations. In this regard it cannot be left out of
consideration that Hungary itself, by suspending the works at Nagymaros and
Dunakiliti, contributed to the creation of a situation which was not
conducive to the conduct of fruitful negotiations.
108. Hungary's main argument for invoking a material breach of the Treaty
was the construction and putting into operation of Variant C. As the Court
has found in paragraph 79 above, Czechoslovakia violated the Treaty only
when it diverted the waters of the Danube into the bypass canal in October
1992. In constructing the works which would lead to the putting into
operation of Variant C, Czechoslovakia did not act unlawfully.
In the Court's view, therefore, the notification of termination by Hungary
on 19 May 1992 was premature. No breach of the Treaty by Czechoslovakia had
yet taken place and consequently Hungary was not entitled to invoke any such
breach of the Treaty as a ground for terminating it when it did.
109. In this regard, it should be noted that, according to Hungary's
Declaration of 19 May 1992, the termination of the 1977 Treaty was to take
effect as from 25 May 1992, that is only six days later. Both Parties agree
that Articles 65 to 67 of the Vienna Convention on the Law of Treaties, if
not codifying customary law, at least generally reflect customary
international law and contain certain procedural principles which are based
on an obligation to act in good faith. As the Court stated in its Advisory
Opinion on the Interpretation of the Agreement of 25 March 1951 between the
WHO and Egypt (in which case the Vienna Convention did not apply):
"Precisely what periods of time may be involved in the observance of the
duties to consult and negotiate, and what period of notice of termination
should be given, are matters which necessarily vary according to the
requirements of the particular case. In principle, therefore, it is for the
parties in each case to determine the length of those periods by
consultation and negotiation in good faith." (I.C.J. Reports 1980, p. 96,
para. 49.)
The termination of the Treaty by Hungary was to take effect six days [p67]
after its notification. On neither of these dates had Hungary suffered
injury resulting from acts of Czechoslovakia. The Court must therefore
confirm its conclusion that Hungary's termination of the Treaty was
premature.
110. Nor can the Court overlook that Czechoslovakia committed the
internationally wrongful act of putting into operation Variant C as a result
of Hungary's own prior wrongful conduct. As was stated by the Permanent
Court of International Justice:
"It is, moreover, a principle generally accepted in the jurisprudence of
international arbitration, as well as by municipal courts, that one Party
cannot avail himself of the fact that the other has not fulfilled some
obligation or has not had recourse to some means of redress, if the former
Party has, by some illegal act, prevented the latter from fulfilling the
obligation in question, or from having recourse to the tribunal which would
have been open, to him." (Factory at Chorzow, Jurisdiction, Judgment No. 8,
1927, P.C.I.J., Series A, No. 9, p. 31.)
Hungary, by its own conduct, had prejudiced its right to terminate the
Treaty; this would still have been the case even if Czechoslovakia, by the
time of the purported termination, had violated a provision essential to the
accomplishment of the object or purpose of the Treaty.
*
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 [p68]
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.
114. Finally, Hungary maintained that by their conduct both parties had
repudiated the Treaty and that a bilateral treaty repudiated by both parties
cannot survive. The Court is of the view, however, that although it has
found that both Hungary and Czechoslovakia failed to comply with their
obligations under the 1977 Treaty, this reciprocal wrongful conduct did not
bring the Treaty to an end nor justify its termination. The Court would set
a precedent with disturbing implications for treaty relations and the
integrity of the rule pacta sunt servanda if it were to conclude that a
treaty in force between States, which the parties have implemented in
considerable measure and at great cost over a period of years, might be
unilaterally set aside on grounds of reciprocal non-compliance. It would be
otherwise, of course, if the parties decided to terminate the Treaty by
mutual consent. But in this case, while Hungary purported to terminate the
Treaty, Czechoslovakia consistently resisted this act and declared it to be
without legal effect.
**
115. In the light of the conclusions it has reached above, the Court, in
reply to the question put to it in Article 2, paragraph 1 (c), of the
Special Agreement (see paragraph 89), 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.
***
116. In Article 2, paragraph 2, of the Special Agreement, the Court is
requested to determine the legal consequences, including the rights and
obligations for the Parties, arising from its Judgment on the questions
formulated in paragraph 1. In Article 5 of the Special Agreement the Parties
agreed to enter into negotiations on the modalities for the execution of the
Judgment immediately after the Court has rendered it.
117. The Court must first turn to the question whether Slovakia became a
party to the 1977 Treaty as successor to Czechoslovakia. As an alternative
argument, Hungary contended that, even if the Treaty survived the
notification of termination, in any event it ceased to be in force as a
treaty on 31 December 1992, as a result of the "disappearance of one of the
parties". On that date Czechoslovakia ceased to exist as a legal entity, and
on 1 January 1993 the Czech Republic and the Slovak Republic came into
existence.
118. According to Hungary, "There is no rule of international law which
provides for automatic succession to bilateral treaties on the disappearance
of a party" and such a treaty will not survive unless another State succeeds
to it by express agreement between that State and the remaining party. While
the second paragraph of the Preamble to the Special Agreement recites that
"the Slovak Republic is one of the two successor States of the Czech and
Slovak Federal Republic and the sole successor State in respect of rights
and obligations relating to the Gabcikovo-Nagymaros Project",
Hungary sought to distinguish between, on the one hand, rights and
obligations such as "continuing property rights" under the 1977 Treaty, and,
on the other hand, the treaty itself. It argued that, during the
negotiations leading to signature of the Special Agreement, Slovakia had
proposed a text in which it would have been expressly recognized "as the
successor to the Government of the CSFR" with regard to the 1977 Treaty, but
that Hungary had rejected that formulation. It contended that it had never
agreed to accept Slovakia as successor to the 1977 Treaty. Hungary referred
to diplomatic exchanges in which the two Parties had each submitted to the
other lists of those bilateral treaties which they respectively wished
should continue in force between them, for negotiation on a case-[p70]by-case basis; and Hungary emphasized that no agreement was ever reached
with regard to the 1977 Treaty.
119. Hungary claimed that there was no rule of succession which could
operate in the present case to override the absence of consent.
Referring to Article 34 of the Vienna Convention of 23 August 1978 on
Succession of States in respect of Treaties, in which "a rule of automatic
succession to all treaties is provided for", based on the principle of
continuity, Hungary argued not only that it never signed or ratified the
Convention, but that the "concept of automatic succession" contained in that
Article was not and is not, and has never been accepted as, a statement of
general international law.
Hungary further submitted that the 1977 Treaty did not create "obligations
and rights . . . relating to the regime of a boundary" within the meaning of
Article 11 of that Convention, and noted that the existing course of the
boundary was unaffected by the Treaty. It also denied that the Treaty was a
"localized" treaty, or that it created rights "considered as attaching to
[the] territory" within the meaning of Article 12 of the 1978 Convention,
which would, as such, be unaffected by a succession of States. The 1977
Treaty was, Hungary insisted, simply a joint investment. Hungary's
conclusion was that there is no basis on which the Treaty could have
survived the disappearance of Czechoslovakia so as to be binding as between
itself and Slovakia.
120. According to Slovakia, the 1977 Treaty, which was not lawfully
terminated by Hungary's notification in May 1992, remains in force between
itself, as successor State, and Hungary.
Slovakia acknowledged that there was no agreement on succession to the
Treaty between itself and Hungary. It relied instead, in the first place, on
the "general rule of continuity which applies in the case of dissolution";
it argued, secondly, that the Treaty is one "attaching to [the] territory"
within the meaning of Article 12 of the 1978 Vienna Convention, and that it
contains provisions relating to a boundary.
121. In support of its first argument Slovakia cited Article 34 of the 1978
Vienna Convention, which it claimed is a statement of customary
international law, and which imposes the principle of automatic succession
as the rule applicable in the case of dissolution of a State where the
predecessor State has ceased to exist. Slovakia maintained that State
practice in cases of dissolution tends to support continuity as the rule to
be followed with regard to bilateral treaties. Slovakia having succeeded to
part of the territory of the former Czechoslovakia, this would be the rule
applicable in the present case.
122. Slovakia's second argument rests on "the principle of ipso jure
continuity of treaties of a territorial or localized character". This rule,
Slovakia said, is embodied in Article 12 of the 1978 Convention, which in
part provides as follows: [p71]
"Article 12
Other territorial regimes
2. 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 a group of States
or of all States and considered as attaching to that territory;
(b) rights established by a treaty for the benefit of a group of States or
of all States and relating to the use of any territory, or to restrictions
upon its use, and considered as attaching to that territory. . ."
According to Slovakia, "[this] article [too] can be considered to be one of
those provisions of the Vienna Convention that represent the codification of
customary international law". The 1977 Treaty is said to fall within its
scope because of its "specific characteristics . . . which place it in the
category of treaties of a localized or territorial character". Slovakia also
described the Treaty as one "which contains boundary provisions and lays
down a specific territorial regime" which operates in the interest of all
Danube riparian States, and as "a dispositive treaty, creating rights in
rem, independently of the legal personality of its original signatories".
Here, Slovakia relied on the recognition by the International Law Commission
of the existence of a "special rule" whereby treaties "intended to establish
an objective regime" must be considered as binding on a successor State
(Official Records of the United Nations Conference on the Succession of
States in respect of Treaties, Vol. III, Doc. A/CONF.80/16/Add.2, p. 34).
Thus, in Slovakia's view, the 1977 Treaty was not one which could have been
terminated through the disappearance of one of the original parties.
*
123. The Court does not find it necessary for the purposes of the present
case to enter into a discussion of whether or not Article 34 of the 1978
Convention reflects the state of customary international law. More relevant
to its present analysis is the particular nature and character of the 1977
Treaty. An examination of this Treaty confirms that, aside from its
undoubted nature as a joint investment, its major elements were the proposed
construction and joint operation of a large, integrated and indivisible
complex of structures and installations on specific parts of the respective
territories of Hungary and Czechoslovakia along the Danube. The Treaty also
established the navigational regime for an important sector of an
international waterway, in particular the relocation of the main
international shipping lane to the bypass canal. In so doing, it inescapably
created a situation in which the interests of other users of the Dan-[p72]ube were affected. Furthermore, the interests of third States were
expressly acknowledged in Article 18, whereby the parties undertook to
ensure "uninterrupted and safe navigation on the international fairway" in
accordance with their obligations under the Convention of 18 August 1948
concerning the Regime of Navigation on the Danube.
In its Commentary on the Draft Articles on Succession of States in respect
of Treaties, adopted at its twenty-sixth session, the International Law
Commission identified "treaties of a territorial character" as having been
regarded both in traditional doctrine and in modern opinion as unaffected by
a succession of States (Official Records of the United Nations Conference on
the Succession of States in respect of Treaties, Vol. III, Doc. A/CONF
80/16/Add.2, p. 27, para. 2). The draft text of Article 12, which reflects
this principle, was subsequently adopted unchanged in the 1978 Vienna
Convention. The Court considers that Article 12 reflects a rule of customary
international law; it notes that neither of the Parties disputed this.
Moreover, the Commission indicated that "treaties concerning water rights or
navigation on rivers are commonly regarded as candidates for inclusion in
the category of territorial treaties" (ibid., p. 33, para. 26). The Court
observes that Article 12, in providing only, without reference to the treaty
itself, that rights and obligations of a territorial character established
by a treaty are unaffected by a succession of States, appears to lend
support to the position of Hungary rather than of Slovakia. However the
Court concludes that this formulation was devised rather to take account of
the fact that, in many cases, treaties which had established boundaries or
territorial regimes were no longer in force (ibid., pp. 26-37). Those that
remained in force would nonetheless bind a successor State.
Taking all these factors into account, the Court finds that the content of
the 1977 Treaty indicates that it must be regarded as establishing a
territorial regime within the meaning of Article 12 of 1978 Vienna
Convention. It created rights and obligations "attaching to" the parts of
the Danube to which it relates; thus the Treaty itself cannot be affected by
a succession of States. The Court therefore concludes that the 1977 Treaty
became binding upon Slovakia on 1 January 1993.
124. It might be added that Slovakia also contended that, while still a
constituent part of Czechoslovakia, it played a role in the development of
the Project, as it did later, in the most critical phase of negotiations
with Hungary about the fate of the Project. The evidence shows that the
Slovak Government passed resolutions prior to the signing of the 1977 Treaty
in preparation for its implementation; and again, after signature,
expressing its support for the Treaty. It was the Slovak Prime Minister who
attended the meeting held in Budapest on 22 April 1991 as the
Plenipotentiary of the Federal Government to discuss questions arising out
of the Project. It was his successor as Prime Minister who notified his
Hun-[p73]garian counterpart by letter on 30 July 1991 of the decision of
the Government of the Slovak Republic, as well as of the Government of the
Czech and Slovak Federal Republic, to proceed with the "provisional
solution" (see paragraph 63 above); and who wrote again on 18 December 1991
to the Hungarian Minister without Portfolio, renewing an earlier suggestion
that a joint commission be set up under the auspices of the European
Communities to consider possible solutions. The Slovak Prime Minister also
wrote to the Hungarian Prime Minister in May 1992 on the subject of the
decision taken by the Hungarian Government to terminate the Treaty,
informing him of resolutions passed by the Slovak Government in response.
It is not necessary, in the light of the conclusions reached in paragraph
123 above, for the Court to determine whether there are legal consequences
to be drawn from the prominent part thus played by the Slovak Republic. Its
role does, however, deserve mention.
***
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
regime 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.
126. Hungary also raised the question of financial accountability for the
failure of the original project and stated that both Parties accept the fact
that the other has "proprietary and financial interests in the residues of
the original Project and that an accounting has to be carried out".
Furthermore, it noted that:
"Other elements of damage associated with Variant C on Hungarian territory
also have to be brought into the accounting . . ., as well as electricity
production since the diversion"
[p74] and that "The overall situation is a complex one, and it may be most
easily resolved by some form of lump sum settlement."
127. Hungary stated that Slovakia had incurred international responsibility
and should make reparation for the damage caused to Hungary by the operation
of Variant C. In that connection, it referred, in the context of reparation
of the damage to the environment, to the rule of restitutio in integrum, and
called for the re-establishment of "joint control by the two States over the
installations maintained as they are now", and the "re-establishment of the
flow of [the] waters to the level at which it stood prior to the unlawful
diversion of the river". It also referred to reparation of the damage to the
fauna, the flora, the soil, the sub-soil, the groundwater and the aquifer,
the damages suffered by the Hungarian population on account of the increase
in the uncertainties weighing on its future (pretium doloris), and the
damage arising from the unlawful use, in order to divert the Danube, of
installations over which the two Parties exercised joint ownership.
Lastly, Hungary called for the "cessation of the continuous unlawful acts"
and a "guarantee that the same actions will not be repeated", and asked the
Court to order "the permanent suspension of the operation of Variant C".
128. Slovakia argued for its part that Hungary should put an end to its
unlawful conduct and cease to impede the application of the 1977 Treaty,
taking account of its "flexibility and of the important possibilities of
development for which it provides, or even of such amendments as might be
made to it by agreement between the Parties, further to future
negotiations". It stated that joint operations could resume on a basis
jointly agreed upon and emphasized the following:
"whether Nagymaros is built as originally planned, or built elsewhere in a
different form, or, indeed, not built at all, is a question to be decided by
the Parties some time in the future.
Provided the bypass canal and the Gabcikovo Power-station and Locks - both
part of the original Treaty, and not part of Variant C - remain operational
and economically viable and efficient, Slovakia is prepared to negotiate
over the future roles of Dunakiliti and Cunovo, bearing Nagymaros in mind."
It indicated that the Gabcikovo power plant would not operate in peak mode
"if the evidence of environmental damage [was] clear and accepted by both
Parties". Slovakia noted that the Parties appeared to agree that an
accounting should be undertaken "so that, guided by the Court's findings on
responsibility, the Parties can try to reach a global settlement". It
[p75]
added that the Parties would have to agree on how the sums due are to be
paid.
129. Slovakia stated that Hungary must make reparation for the deleterious
consequences of its failures to comply with its obligations, "whether they
relate to its unlawful suspensions and abandonments of works or to its
formal repudiation of the Treaty as from May 1992", and that compensation
should take the form of a restitutio in integrum. It indicated that "Unless
the Parties come to some other arrangement by concluding an agreement,
restitutio in integrum ought to take the form of a return by Hungary, at a
future time, to its obligations under the Treaty" and that "For compensation
to be 'full'. . ., to 'wipe out all the consequences of the illegal act'. .
., a payment of compensation must . . . be added to the restitutio . . ."
Slovakia claims compensation which must include both interest and loss of
profits and should cover the following heads of damage, which it offers by
way of guidance:
(1) Losses caused to Slovakia in the Gabcikovo sector: costs incurred from
1990 to 1992 by Czechoslovakia in protecting the structures of the G/N
project and adjacent areas; the cost of maintaining the old bed of the River
Danube pending the availability of the new navigation canal, from 1990 to
1992; losses to the Czechoslovak navigation authorities due to the
unavailability of the bypass canal from 1990 to 1992; construction costs of
Variant C (1990-1992).
(2) Losses caused to Slovakia in the Nagymaros sector: losses in the field
of navigation and flood protection incurred since 1992 by Slovakia due to
the failure of Hungary to proceed with the works.
(3) Loss of electricity production.
Slovakia also calls for Hungary to "give the appropriate guarantees that it
will abstain from preventing the application of the Treaty and the
continuous operation of the system". It argued from that standpoint that it
is entitled "to be given a formal assurance that the internationally
wrongful acts of Hungary will not recur", and it added that "the maintenance
of the closure of the Danube at Cunovo constitutes a guarantee of that
kind", unless Hungary gives an equivalent guarantee "within the framework of
the negotiations that are to take place between the Parties".
*
130. The Court observes that the part of its Judgment which answers the
questions in Article 2, paragraph 1, of the Special Agreement has a
declaratory character. It deals with the past conduct of the Parties and
determines the lawfulness or unlawfulness of that conduct between 1989 and
1992 as well as its effects on the existence of the Treaty.
131. Now the Court has, on the basis of the foregoing findings, to [p76]
determine what the future conduct of the Parties should be. This part of the
Judgment is prescriptive rather than declaratory because it determines what
the rights and obligations of the Parties are. The Parties will have to seek
agreement on the modalities of the execution of the Judgment in the light of
this determination, as they agreed to do in Article 5 of the Special
Agreement.
**
132. In this regard it is of cardinal importance that the Court has found
that the 1977 Treaty is still in force and consequently governs the
relationship between the Parties. That relationship is also determined by
the rules of other relevant conventions to which the two States are party,
by the rules of general international law and, in this particular case, by
the rules of State responsibility; but it is governed, above all, by the
applicable rules of the 1977 Treaty as a lex specialis.
133. The Court, however, cannot disregard the fact that the Treaty has not
been fully implemented by either party for years, and indeed that their acts
of commission and omission have contributed to creating the factual
situation that now exists. Nor can it overlook that factual situation -- or
the practical possibilities and impossibilities to which it gives rise --
when deciding on the legal requirements for the future conduct of the
Parties.
This does not mean that facts -- in this case facts which flow from wrongful
conduct -- determine the law. The principle ex injuria jus non oritur is
sustained by the Court's finding that the legal relationship created by the
1977 Treaty is preserved and cannot in this case be treated as voided by
unlawful conduct.
What is essential, therefore, is that the factual situation as it has
developed since 1989 shall be placed within the context of the preserved and
developing treaty relationship, in order to achieve its object and purpose
in so far as that is feasible. For it is only then that the irregular state
of affairs which exists as the result of the failure of both Parties to
comply with their treaty obligations can be remedied.
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
Gabcikovo 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 [p77] 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 Gabcikovo 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
Gabcikovo 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).
142. What is required in the present case by the rule pacta sunt servanda,
as reflected in Article 26 of the Vienna Convention of 1969 on the Law of
Treaties, is that the Parties find an agreed solution within the
co-operative context of the Treaty.
Article 26 combines two elements, which are of equal importance. It provides
that "Every treaty in force is binding upon the parties to it and [p79]
must be performed by them in good faith". This latter element, in the
Court's view, implies that, in this case, it is the purpose of the Treaty,
and the intentions of the parties in concluding it, which should prevail
over its literal application. The principle of good faith obliges the
Parties to apply it in a reasonable way and in such a manner that its
purpose can be realized.
143. During this dispute both Parties have called upon the assistance of the
Commission of the European Communities. Because of the diametrically opposed
positions the Parties took with regard to the required outcome of the
trilateral talks which were envisaged, those talks did not succeed. When,
after the present Judgment is given, bilateral negotiations without
pre-conditions are held, both Parties can profit from the assistance and
expertise of a third party. The readiness of the Parties to accept such
assistance would be evidence of the good faith with which they conduct
bilateral negotiations in order to give effect to the Judgment of the Court.
144. The 1977 Treaty not only contains a joint investment programme, it also
establishes a regime. According to the Treaty, the main structures of the
System of Locks are the joint property of the Parties; their operation will
take the form of a co-ordinated single unit; and the benefits of the project
shall be equally shared.
Since the Court has found that the Treaty is still in force and that, under
its terms, the joint regime is a basic element, it considers that, unless
the Parties agree otherwise, such a regime should be restored.
145. Article 10, paragraph 1, of the Treaty states that works of the System
of Locks constituting the joint property of the contracting parties shall be
operated, as a co-ordinated single unit and in accordance with
jointly-agreed operating and operational procedures, by the authorized
operating agency of the contracting party in whose territory the works are
built. Paragraph 2 of that Article states that works on the System of Locks
owned by one of the contracting parties shall be independently operated or
maintained by the agencies of that Contracting Party in the jointly
prescribed manner.
The Court is of the opinion that the works at Cunovo should become a jointly
operated unit within the meaning of Article 10, paragraph 1, in view of
their pivotal role in the operation of what remains of the Project and for
the water-management regime. The dam at Cunovo has taken over the role which
was originally destined for the works at Dunakiliti, and therefore should
have a similar status.
146. The Court also concludes that Variant C, which it considers operates in
a manner incompatible with the Treaty, should be made to conform to it. By
associating Hungary, on an equal footing, in its operation, management and
benefits, Variant C will be transformed from a de facto status into a
treaty-based regime.
It appears from various parts of the record that, given the current state [p80] of information before the Court, Variant C could be made to function in
such a way as to accommodate both the economic operation of the system of
electricity generation and the satisfaction of essential environmental
concerns.
Regularization of Variant C by making it part of a single and indivisible
operational system of works also appears necessary to ensure that Article 9
of the Treaty, which provides that the contracting parties shall participate
in the use and in the benefits of the System of Locks in equal measure, will
again become effective.
147. Re-establishment of the joint regime will also 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, in
concordance with Article 5, paragraph 2, of the Convention on the Law of the
Non-Navigational Uses of International Watercourses, according to which:
"Watercourse States shall participate in the use, development and protection
of an international watercourse in an equitable and reasonable manner. Such
participation includes both the right to utilize the watercourse and the
duty to cooperate in the protection and development thereof, as provided in
the present Convention." (General Assembly Doc. A/51/869 of 11 April 1997.)
148. Thus far the Court has indicated what in its view should be the effects
of its finding that the 1977 Treaty is still in force. Now the Court will
turn to the legal consequences of the internationally wrongful acts
committed by the Parties.
149. The Permanent Court of International Justice stated in its Judgment of
13 September 1928 in the case concerning the Factory at Chorzow:
"reparation must, as far as possible, wipe out all the consequences of the
illegal act and reestablish the situation which would, in all probability,
have existed if that act had not been committed" (P.C.I.J., Series A, No.
17, p. 47).
150. Reparation must, "as far as possible", wipe out all the consequences of
the illegal act. In this case, the consequences of the wrongful acts of both
Parties will be wiped out "as far as possible" if they resume their
co-operation in the utilization of the shared water resources of the Danube,
and if the multi-purpose programme, in the form of a co-ordinated single
unit, for the use, development and protection of the watercourse is
implemented in an equitable and reasonable manner. What it is possible for
the Parties to do is to re-establish co-operative administration of what
remains of the Project. To that end, it is open to them to agree to maintain
the works at Cunovo, with changes in the mode of operation in respect of the
allocation of water and electricity, and not to build works at Nagymaros. [p81]
151. The Court has been asked by both Parties to determine the consequences
of the Judgment as they bear upon payment of damages. According to the
Preamble to the Special Agreement, the Parties agreed that Slovakia is the
sole successor State of Czechoslovakia in respect of rights and obligations
relating to the Gabcikovo-Nagymaros Project. Slovakia thus may be liable to
pay compensation not only for its own wrongful conduct but also for that of
Czechoslovakia, and it is entitled to be compensated for the damage
sustained by Czechoslovakia as well as by itself as a result of the wrongful
conduct of Hungary.
152. The Court has not been asked at this stage to determine the quantum of
damages due, but to indicate on what basis they should be paid. Both Parties
claimed to have suffered considerable financial losses and both claim
pecuniary compensation for them.
It is a well-established rule of international law that an injured State is
entitled to obtain compensation from the State which has committed an
internationally wrongful act for the damage caused by it. In the present
Judgment, the Court has concluded that both Parties committed
internationally wrongful acts, and it has noted that those acts gave rise to
the damage sustained by the Parties; consequently, Hungary and Slovakia are
both under an obligation to pay compensation and are both entitled to obtain
compensation.
Slovakia is accordingly entitled to compensation for the damage suffered by
Czechoslovakia as well as by itself as a result of Hungary's decision to
suspend and subsequently abandon the works at Nagymaros and Dunakiliti, as
those actions caused the postponement of the putting into operation of the
Gabcikovo power plant, and changes in its mode of operation once in service.
Hungary is entitled to compensation for the damage sustained as a result of
the diversion of the Danube, since Czechoslovakia, by putting into operation
Variant C, and Slovakia, in maintaining it in service, deprived Hungary of
its rightful part in the shared water resources, and exploited those
resources essentially for their own benefit.
153. Given the fact, however, that there have been intersecting wrongs by
both Parties, the Court wishes to observe 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.
154. At the same time, the Court wishes to point out that the settlement of
accounts for the construction of the works is different from the issue of
compensation, and must be resolved in accordance with the 1977 Treaty and
related instruments. If Hungary is to share in the operation and benefits of
the Cunovo complex, it must pay a proportionate share of the building and
running costs.
***[p82]
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 Gabcikovo Project for which the Treaty of 16 September 1977
and related instruments attributed responsibility to it;
IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda,
Bedjaoui, Guillaume, Ranjeva, Shi, Fleischhauer, Koroma, Vereshchetin,
Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc Skubiszewski;
AGAINST: Judge Herczegh;
B. Finds, by nine votes to six, that Czechoslovakia was entitled to proceed,
in November 1991, to the "provisional solution" as described in the terms of
the Special Agreement;
IN FAVOUR: Vice-President Weeramantry; Judges Oda, Guillaume, Shi, Koroma,
Vereshchetin, Parra-Aranguren, Kooijmans; Judge ad hoc Skubiszewski;
AGAINST: President Schwebel; Judges Bedjaoui, Ranjeva, Herczegh,
Fleischhauer, Rezek;
C. Finds, by ten votes to five, that Czechoslovakia was not entitled to put
into operation, from October 1992, this "provisional solution";
IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Bedjaoui,
Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Kooijmans, Rezek;
AGAINST: Judges Oda, Koroma, Vereshchetin, Parra-Aranguren; Judge ad hoc
Skubiszewski;
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;
IN FAVOUR: Vice-President Weeramantry; Judges Oda, Bedjaoui, Guillaume,
Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans; Judge ad hoc
Skubiszewski;
AGAINST: President Schwebel; Judges Herczegh, Fleischhauer, Rezek;[p83]
(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;
IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda,
Bedjaoui, Guillaume, Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren,
Kooijmans; Judge ad hoc Skubiszewski;
AGAINST: Judges Herczegh, Fleischhauer, Rezek;
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;
IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda,
Bedjaoui, Guillaume, Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren,
Kooijmans, Rezek; Judge ad hoc Skubiszewski;
AGAINST: Judges Herczegh, Fleischhauer;
C. Finds, by thirteen votes to two, that, unless the Parties otherwise
agree, a joint operational regime must be established in accordance with the
Treaty of 16 September 1977;
IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda,
Bedjaoui, Guillaume, Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren,
Kooijmans, Rezek; Judge ad hoc Skubiszewski;
AGAINST: Judges Herczegh, Fleischhauer;
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;
IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Bedjaoui,
Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Parra-Aranguren, Kooijmans,
Rezek; Judge ad hoc Skubiszewski;
AGAINST: Judges Oda, Koroma, Vereshchetin; [p84]
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.
IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda,
Bedjaoui, Guillaume, Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren,
Kooijmans, Rezek; Judge ad hoc Skubiszewski;
AGAINST: Judges Herczegh, Fleischhauer.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this twenty-fifth day of September, one thousand
nine hundred and ninety-seven, in three copies, one of which will be placed
in the archives of the Court and the others transmitted to the Government of
the Republic of Hungary and the Government of the Slovak Republic,
respectively.
(Signed)Stephen M. SCHWEBEL,
President.
(Signed) Eduardo VALENCIA-OSPINA,
Registrar.
President SCHWEBEL and Judge REZEK append declarations to the Judgment of
the Court.
Vice-President WEERAMANTRY, Judges BEDJAOUI and KOROMA append separate
opinions to the Judgment of the Court.
Judges ODA, RANJEVA, HERCZEGH, FLEISCHHAUER, VERESHCHETIN and
PARRA-ARANGUREN, and Judge ad hoc SKUBISZEWSKI append dissenting opinions to
the Judgment of the Court.
(Initialled) S. M. S.
(Initialled) E. V. O.
[p85]
DECLARATION OF PRESIDENT SCHWEBEL
I am largely in agreement with the Court's Judgment and accordingly I have
voted for most of its operative paragraphs. I have voted against operative
paragraph 1 B essentially because I view the construction of "Variant C",
the "provisional solution", as inseparable from its being put into
operation. I have voted against operative paragraph 1 D essentially because
I am not persuaded that Hungary's position as the Party initially in breach
deprived it of a right to terminate the Treaty in response to
Czechoslovakia's material breach, a breach which in my view (as indicated
by my vote on paragraph 1 B) was in train when Hungary gave notice of
termination.
At the same time, I fully support the conclusions of the Court as to what
should be the future conduct of the Parties and as to disposition of issues
of compensaion.
(Signed) Stephen M. SCHWEBEL.
[p86]
DECLARATION OF JUDGE REZEK
[Translation]
1. Although in my opinion the 1977 Treaty is no longer in force, I am able
to accept the conclusions of the majority of the Members of the Court as to
the main points, that is to say, the practical consequences of this Judgment
and the programme of measures which it invites the States in dispute to
implement.
My opposition to the majority is based primarily on theoretical convictions
relating to the nature of the 1977 Treaty and to the effects upon a
bilateral commitment in course of performance (and not yet exhibiting the
territorial effects that it was intended one day to produce) of the
collective wrongfulness embodied in the existence, on the part of both the
States involved, of attitudes denoting that the animus contrahendi which
supposedly united them in the past has now disappeared.
2. A commitment such as the bilateral 1977 Treaty cannot be subject to
ordinary denunciation during performance; however, the Hungarian
notification of 19 May 1992 was not an ordinary denunciation. It was made
after both Parties had failed to fulfil their mutual obligations, Hungary by
abandoning works for which it was responsible, Czechoslovakia by adopting
Variant C. I consider the Note of 19 May 1992 to be the formal act of
termination of a treaty which, for different reasons and on more than one
previous occasion, each of the Parties had already repudiated. I therefore
see here an unorthodox type of abrogation.
3. In my opinion, the rule pacta sunt servanda means that the treaty creates
reciprocal rights between the parties on the basis of a convergence of
interests, a pooling of sovereign wills which in all probability will
continue to coincide over time. When, on both sides of the treaty process,
there is a lack of rigour in doing what has been agreed, the commitment
weakens and becomes vulnerable to formal repudiation by one of the parties,
irrespective of the question of which party was the first to neglect its
duties, and it hardly matters that the parties lacked rigour in different
ways. Treaties derive their force from the will of the States which
conclude them. They do not have an objective value which makes them sacred
regardless of those common intentions.
4. I consider that the 1977 Treaty is no longer in existence, having been
abrogated by the attitude of both parties. From that conclusion, however, I
infer consequences similar to those which the majority infers from the
continued existence of the Treaty. First, there is what has been
accomplished, and accomplished in good faith. There is, also and above [p87] all, the very principle of good faith which must lead here to the
fulfilment of reciprocal duties remaining from a treaty which has not been
applied through the joint fault of the parties.
(Signed) Francisco REZEK.
[p88]
SEPARATE OPINION OF VICE-PRESIDENT WEERAMANTRY
Introduction
This case raises a rich array of environmentally related legal issues. A
discussion of some of them is essential to explain my reasons for voting as
I have in this very difficult decision. Three issues on which I wish to make
some observations, supplementary to those of the Court, are the role played
by the principle of sustainable development in balancing the competing
demands of development and environmental protection; the protection given to
Hungary by what I would describe as the principle of continuing
environmental impact assessment; and the appropriateness of the use of inter
partes legal principles, such as estoppel, for the resolution of problems
with an erga omnes connotation such as environmental damage.
A. The Concept of Sustainable Development
Had the possibility of environmental harm been the only consideration to be
taken into account in this regard, the contentions of Hungary could well
have proved conclusive.
Yet there are other factors to be taken into account not the least
important of which is the developmental aspect, for the Gabcikovo scheme is
important to Slovakia from the point of view of development. The Court must
hold the balance even between the environmental con-siderations and the
developmental considerations raised by the respective Parties. The principle
that enables the Court to do so is the principle of sustainable development.
The Court has referred to it as a concept in paragraph 140 of its Judgment.
However, I consider it to be more than a mere concept, but as a principle
with normative value which is crucial to the determination of this case.
Without the benefits of its insights, the issues involved in this case would
have been difficult to resolve.
Since sustainable development is a principle fundamental to the
determination of the competing considerations in this case, and since,
although it has attracted attention only recently in the literature of
international law, it is likely to play a major role in determining
important environ-mental disputes of the future, it calls for consideration
in some detail. Moreover, this is the first occasion on which it has
received attention in the jurisprudence of this Court. [p89]
When a major scheme, such as that under consideration in the present case,
is planned and implemented, there is always the need to weigh
considerations of development against environmental considerations, as
their underlying juristic bases the right to development and the right to
environmental protection are important principles of current
international law.
In the present case we have, on the one hand, a scheme which, even in the
attenuated form in which it now remains, is important to the welfare of
Slovakia and its people, who have already strained their own resources and
those of their predecessor State to the extent of over two billion dollars
to achieve these benefits. Slovakia, in fact, argues that the environment
would be improved through the operation of the Project as it would help to
stop erosion of the river bed, and that the scheme would be an effective
protection against floods. Further, Slovakia has traditionally been short of
electricity, and the power generated would be important to its economic
development. Moreover, if the Project is halted in its tracks, vast
structural works constructed at great expense, even prior to the repudiation
of the Treaty, would be idle and unproductive, and would pose an economic
and environmental problem in themselves.
On the other hand, Hungary alleges that the Project produces, or is likely
to produce, ecological damage of many varieties, including harm to river
bank fauna and flora, damage to fish breeding, damage to surface water
quality, eutrophication, damage to the groundwater regime, agriculture,
forestry and soil, deterioration of the quality of drinking water reserves,
and sedimentation. Hungary alleges that many of these dangers have already
occurred and more will manifest themselves, if the scheme continues in
operation. In the material placed before the Court, each of these dangers is
examined and explained in considerable detail.
How does one handle these considerations? Does one abandon the Project
altogether for fear that the latter consequences might emerge? Does one
proceed with the scheme because of the national benefits it brings,
regardless of the suggested environmental damage? Or does one steer a course
between, with due regard to both considerations, but ensuring always a
continuing vigilance in respect of environmental harm?
It is clear that a principle must be followed which pays due regard to both
considerations. Is there such a principle, and does it command recognition
in international law? I believe the answer to both questions is in the
affirmative. The principle is the principle of sustainable development and,
in my view, it is an integral part of modern international law. It is
clearly of the utmost importance, both in this case and more generally.
I would observe, moreover, that both Parties in this case agree on the [p90] applicability to this dispute of the principle of sustainable
development. Thus, Hungary states in its pleadings that:
"Hungary and Slovakia agree that the principle of sustainable development,
as formulated in the Brundtland Report, the Rio Declaration and Agenda 21
is applicable to this dispute . . .
International law in the field of sustainable development is now
sufficiently well established, and both Parties appear to accept this."
(Reply of Hungary, paras. 1.45 and 1.47.)
Slovakia states that "inherent in the concept of sustainable development is
the principle that developmental needs are to be taken into account in
interpreting and applying environmental obligations" (Counter-Memorial of
Slovakia, para. 9.53; see also paras. 9.54-9.59).
Their disagreement seems to be not as to the existence of the principle but,
rather, as to the way in which it is to be applied to the facts of this case
(Reply of Hungary, para. 1.45).
The problem of steering a course between the needs of development and the
necessity to protect the environment is a problem alike of the law of
development and of the law of the environment. Both these vital and
developing areas of law require, and indeed assume, the existence of a
principle which harmonizes both needs.
To hold that no such principle exists in the law is to hold that current law
recognizes the juxtaposition of two principles which could operate in
collision with each other, without providing the necessary basis of
principle for their reconciliation. The untenability of the supposition
that the law sanctions such a state of normative anarchy suffices to condemn
a hypothesis that leads to so unsatisfactory a result.
Each principle cannot be given free rein, regardless of the other. The law
necessarily contains within itself the principle of reconciliation. That
principle is the principle of sustainable development.
This case offers a unique opportunity for the application of that
principle, for it arises from a Treaty which had development as its
objective, and has been brought to a standstill over arguments concerning
environmental considerations.
The people of both Hungary and Slovakia are entitled to development for the
furtherance of their happiness and welfare. They are likewise entitled to
the preservation of their human right to the protection of their
environment. Other cases raising environmental questions have been
considered by this Court in the context of environmental pollution arising
from such sources as nuclear explosions, which are far removed from
development projects. The present case thus focuses attention, as no other
case has done in the jurisprudence of this Court, on the question of the
harmonization of developmental and environmental concepts. [p91]
(a) Development as a Principle of International Law
Article 1 of the Declaration on the Right to Development, 1986, asserted
that "The right to development is an inalienable human right." This
Declaration had the overwhelming support of the international communityFN1
and has been gathering strength since thenFN2. Principle 3 of the Rio
Declaration, 1992, reaffirmed the need for the right to development to be
fulfilled.
---------------------------------------------------------------------------------------------------------------------
FN1 146
votes in favour, with one vote against.
FN2 Many years prior to the Declaration of 1986, this right had received
strong support in the field of human rights. As early as 1972, at the Third
Session of the Institut international de droits de l'homme, Judge Kιba
Mbaye, President of the Supreme Court of Senegal and later to be a
Vice-President of this Court, argued strongly that such a right existed. He
adduced detailed argument in support of his contention from economic,
political and moral standpoints. (See K. Mbaye, "Le droit au dιveloppement
comme un droit de l'homme". Revue des droits de l'homme, 1972, Vol. 5, p.
503.)
Nor was the principle without influential voices in its support from the
developed world as well. Indeed, the genealogy of the idea can be traced
much further back even to the conceptual stages of the Universal Declaration
of Human Rights, 1948.
Mrs. Eleanor Roosevelt, who from 1946 to 1952 served as the Chief United
States representative to Committee III, Humanitarian, Social and Cultural
Affairs, and was the first Chairperson, from 1946 to 1951. of the United
Nations Human Rights Commission, had observed in 1947, "We will have to bear
in mind that we are writing a bill of rights for the world and that one of
the most important rights is the opportunity for development." (M. Glen
Johnson, "The Contribution of Eleanor and Franklin Roosevelt to the
Development of the International Protection for Human Rights", Human Rights
Quarterly, 1987, Vol. 9, p. 19, quoting Mrs. Roosevelt's column, "My Day". 6
February 1947.)
General Assembly resolution 642 (VII) of 1952, likewise, referred expressly
to "integrated economic and social development".
---------------------------------------------------------------------------------------------------------------------
"Development" means, of course, development not merely for the sake of
development and the economic gain it produces, but for its value in
increasing the sum total of human happiness and welfareFN3. That could
perhaps be called the first principle of the law relating to development.
---------------------------------------------------------------------------------------------------------------------
FN3
The Preamble to the Declaration on the Right to Development (1986) recites
that development is a comprehensive, economic, social and cultural process
which aims at the constant improvement and well-being of the entire
population and of all individuals on the basis of their active, free and
meaningful participation in development and in the fair distribution of the
benefits resulting therefrom.
---------------------------------------------------------------------------------------------------------------------
To the end of improving the sum total of human happiness and welfare, it is
important and inevitable that development projects of various descriptions,
both minor and major, will be launched from time to time in all parts of the
world.
(b) Environmental Protection as a Principle of International Law
The protection of the environment is likewise a vital part of contemporary
human rights doctrine, for it is a sine qua non for numerous human rights
such as the right to health and the right to life itself. It is [p92]
scarcely necessary to elaborate on this, as damage to the environment can
impair and undermine all the human rights spoken of in the Universal
Declaration and other human rights instruments.
While, therefore, all peoples have the right to initiate development
projects and enjoy their benefits, there is likewise a duty to ensure that
those projects do not significantly damage the environment.
(c) Sustainable Development as a Principle of International Law
After the early formulations of the concept of development, it has been
recognized that development cannot be pursued to such a point as to result
in substantial damage to the environment within which it is to occur.
Therefore development can only be prosecuted in harmony with the reasonable
demands of environmental protection. Whether development is sustainable by
reason of its impact on the environment will, of course, be a question to be
answered in the context of the particular situation involved.
It is thus the correct formulation of the right to development that that
right does not exist in the absolute sense, but is relative always to its
tolerance by the environment. The right to development as thus refined is
clearly part of modern international law. It is compendiously referred to as
sustainable development.
The concept of sustainable development can be traced back, beyond the
Stockholm Conference of 1972, to such events as the Founex meeting of
experts in Switzerland in June 1971FN4; the conference on environment and
development in Canberra in 1971; and United Nations General Assembly
resolution 2849 (XXVI). It received a powerful impetus from the Stockholm
Declaration which, by Principle 11, stressed the essentiality of
development as well as the essentiality of bearing environmental
considerations in mind in the developmental process. Moreover, many other
Principles of that DeclarationFN5 provided a setting for the development of
the concept of sustainable developmentFN6 and more than one-third of the
Stockholm Declaration related to the harmonization of environment and
developmentFN7. The Stockholm Conference also produced an Action Plan for
the Human EnvironmentFN8.
---------------------------------------------------------------------------------------------------------------------
FN4
See Sustainable Development and International Law, Winfried Lang (ed.),
1995, p. 143.
FN5 For example, Principles 2, 3, 4, 5, 8, 9, 12, 13 and 14.
FN6 These principles are thought to be based to a large extent on the Founex
Report see Sustainable Development and International Law, Winfried Lang
(ed.), supra, p. 144.
FN7 Ibid.
FN8 Action Plan for the Human Environment, United Nations doc. A/CONF.48/14/
Rev.l. See especially Chapter II which devoted its final section to
development and the environment.
---------------------------------------------------------------------------------------------------------------------
[p93]
The international community had thus been sensitized to this issue even as
early as the early 1970s, and it is therefore no cause for surprise that the
1977 Treaty, in Articles 15 and 19, made special reference to environmental
considerations. Both Parties to the Treaty recognized the need for the
developmental process to be in harmony with the environment and introduced
a dynamic element into the Treaty which enabled the Joint Project to be kept
in harmony with developing principles of international law.
Since then, it has received considerable endorsement from all sections of
the international community, and at all levels.
Whether in the field of multilateral treatiesFN9, international
declarationsFN10; the foundation documents of international
organizationsFN11; the practices of international financial
institutionsFN12; regional declarations and planning documentsFN13; or State
practiceFN14, there is a wide and general recognition of the concept. The
Bergen ECE Ministerial Declaration on Sustainable Development of 15 May
1990, resulting from a meeting of [p94] Ministers from 34 countries in the
ECE region, and the Commissioner for the Environment of the European
Community, addressed "The challenge of sustainable development of humanity"
(para. 6), and prepared a Bergen Agenda for Action which included a
consideration of the Economics of Sustainability, Sustainable Energy Use,
Sustainable Industrial Activities, and Awareness Raising and Public
Participation. It sought to develop "sound national indicators for
sustainable development" (para. 13 (b)) and sought to encourage investors to
apply environmental standards required in their home country to investments
abroad. It also sought to encourage UNEP, UNIDO, UNDP, IBRD, ILO, and
appropriate international organizations to support member countries in
ensuring environmentally sound industrial investment, observing that
industry and government should co-operate for this purpose (para. 15
(f))FN15. A Resolution of the Council of Europe, 1990, propounded a European
Conservation Strategy to meet, inter alia, the legitimate needs and
aspirations of all Europeans by seeking to base economic, social and
cultural development on a rational and sustainable use of natural resources,
and to suggest how sustainable development can be achievedFN16.
---------------------------------------------------------------------------------------------------------------------
FN9
For example, the United Nations Convention to Combat Desertification (The
United Nations Convention to Combat Desertification in those Countries
Experiencing Serious Droughts and/or Desertification, Particularly in
Africa), 1994, Preamble, Art. 9 (1); the United Nations Framework Convention
on Climate Change, 1992 (ILM, 1992, Vol. XXXI, p. 849. Arts. 2 and 3); and
the Convention on Biological Diversity (ILM, 1992. Vol. XXXI, p. 818,
Preamble, Arts. 1 and 10 "sustainable use of biodiversity").
FN10 For example, the Rio Declaration on Environment and Development, 1992,
emphasizes sustainable development in several of its Principles (e.g.,
Principles 4, 5, 7, 8, 9, 20, 21, 22, 24 and 27 refer expressly to
"sustainable development" which can be described as the central concept of
the entire document); and the Copenhagen Declaration, 1995 (paras. 6 and 8),
following on the Copenhagen World Summit for Social Development, 1995.
FN11 For example, the North American Free Trade Agreement (Canada, Mexico,
United States) (NAFTA, Preamble, ILM, 1993, Vol. XXXII, p. 289); the World
Trade Organization (WTO) (paragraph 1 of the Preamble of the Marrakesh
Agreement of 15 April 1994, establishing the World Trade Organization,
speaks of the "optimal use of the world's resources in accordance with the
objective of sustainable development" ILM, 1994, Vol. XXXIII. pp.
1143-1144); and the European Union (Art. 2 of the ECT).
FN12 For example, the World Bank Group, the Asian Development Bank, the
African Development Bank, the Inter-American Development Bank, and the
European Bank for Reconstruction and Development all subscribe to the
principle of sustainable development. Indeed, since 1993, the World Bank
has convened an annual conference related to advancing environmentally and
socially sustainable development (ESSD).
FDN13 For example, the Langkawi Declaration on the Environment, 1989,
adopted by the "Heads of Government of the Commonwealth representing a
quarter of the world's population" which adopted "sustainable development"
as its central theme; Ministerial Declaration on Environmentally Sound and
Sustainable Development in Asia and the Pacific, Bangkok, 1990 (doc. 38a, p.
567); and Action Plan for the Protection and Management of the Marine and
Coastal Environment of the South Asian Seas Region. 1983 (para. 10:
"sustainable, environmentally sound development").
FN14 For example, in 1990, the Dublin Declaration by the European Council on
the Envi-ronmental Imperative stated that there must be an acceleration of
effort to ensure that economic development in the Community is "sustainable
and environmentally sound"
(Bulletin of the European Communities, 6, 1990, Ann. II, p. 18). It urged
the Community and Member States to play a major role to assist developing
countries in their efforts to achieve "long-term sustainable development"
(ibid., p. 19). It said, in regard to countries of Central and Eastern
Europe, that remedial measures must be taken "to ensure that their future
economic development is sustainable" (ibid.). It also expressly recited
that:
"As Heads of State or Government of the European Community, . . . [w]e
intend that action by the Community and its Member States will be developed
... on the principles of sustainable development and preventive and
precautionary action." (Ibid., Conclusions of the Presidency, Point 1.36,
pp. 17-18.)
FN15 Basic Documents of International Environmental Law. Harald Hohmann
(ed.), Vol. 1, 1992, p. 558.
FN16 Ibid., p. 598.
---------------------------------------------------------------------------------------------------------------------
The concept of sustainable development is thus a principle accepted not
merely by the developing countries, but one which rests on a basis of
worldwide acceptance.
In 1987, the Brundtland Report brought the concept of sustainable
development to the forefront of international attention. In 1992, the Rio
Conference made it a central feature of its Declaration, and it has been a
focus of attention in all questions relating to development in the
developing countries. [p95]
The principle of sustainable development is thus a part of modern
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.
The concept has a significant role to play in the resolution of
environmentally related disputes. The components of the principle come from
well-established areas of international law human rights, State
responsibility, environmental law, economic and industrial law, equity,
territorial sovereignty, abuse of rights, good neighbourliness to mention
a few. It has also been expressly incorporated into a number of binding and
far-reaching international agreements, thus giving it binding force in the
context of those agreements. It offers an important principle for the
reso-lution of tensions between two established rights. It reaffirms in the
arena of international law that there must be both development and
environmental protection, and that neither of these rights can be
neglected.
The general support of the international community does not of course mean
that each and every member of the community of nations has given its express
and specific support to the principle nor is this a requirement for the
establishment of a principle of customary international law.
As Brierly observes:
"It would hardly ever be practicable, and all but the strictest of
positivists admit that it is not necessary, to show that every state has
recognized a certain practice, just as in English law the existence of a
valid local custom or custom of trade can be established without proof that
every individual in the locality, or engaged in the trade, has practised the
custom. This test of general recognition is necessarily a vague one; but it
is of the nature of customary law, whether national or international . .
."FN17
------------------------------------------------------------------------------------------------------------
FN17
J. Brierly, The Law of Nations, 6th ed., 1963, p. 61; emphasis added.
------------------------------------------------------------------------------------------------------------
Evidence appearing in international instruments and State practice (as in
development assistance and the practice of international financial
institutions) likewise amply supports a contemporary general acceptance of
the concept.
Recognition of the concept could thus, fairly, be said to be worldwideFN18.
---------------------------------------------------------------------------------------------------------------------
FN18
See, further, L. Krδmer, EC Treaty and Environmental Law, 2nd ed., 1995, p.
63, analysing the environmental connotation in the word "sustainable" and
tracing it to the Brundtland Report.
---------------------------------------------------------------------------------------------------------------------
[p96]
(d) The Need for International Law to Draw upon the World's Diversity of
Cultures in Harmonizing Development and Environmental Protection
This case, which deals with a major hydraulic project, is an opportunity to
tap the wisdom of the past and draw from it some principles which can
strengthen the concept of sustainable development, for every development
project clearly produces an effect upon the environment, and humanity has
lived with this problem for generations.
This is a legitimate source for the enrichment of international law, which
source is perhaps not used to the extent which its importance warrants.
In drawing into international law the benefits of the insights available
from other cultures, and in looking to the past for inspiration,
international environmental law would not be departing from the traditional
methods of international law, but would, in fact, be following in the path
charted out by Grotius. Rather than laying down a set of principles a priori
for the new discipline of international law, he sought them also a
posteriori from the experience of the past, searching through the whole
range of cultures available to him for this purposeFN19. From them, he drew
the durable principles which had weathered the ages, on which to build the
new international order of the future. Environmental law is now in a
formative stage, not unlike international law in its early stages. A wealth
of past experience from a variety of cultures is available to it. It would
be pity indeed if it were left untapped merely because of attitudes of
formalism which see such approaches as not being entirely de rigueur.
---------------------------------------------------------------------------------------------------------------------
FN19
Julius Stone, Human Law and Human Justice, 1965, p. 66: "It was for this
reason that Grotius added to his theoretical deductions such a mass of
concrete examples from history."
---------------------------------------------------------------------------------------------------------------------
I cite in this connection an observation of Sir Robert Jennings that, in
taking note of different legal traditions and cultures, the International
Court (as it did in the Western Sahara case):
"was asserting, not negating, the Grotian subjection of the totality of
international relations to international law. It seems to the writer,
indeed, that at the present juncture in the development of the
international legal system it may be more important to stress the
imperative need to develop international law to comprehend within itself
the rich diversity of cultures, civilizations and legal traditions . .
."FN20
------------------------------------------------------------------------------------------------------------------------------------------------------------------
FN20
Sir Robert Y. Jennings, "Universal International Law in a Multicultural
World", in International Law and the Grotian Heritage: A Commemorative
Colloquium on the Occa-sion of the Fourth Centenary of the Birth of Hugo
Grotius, edited and published by the T.M.C. Asser Institute, The Hague,
1985, p. 195.
------------------------------------------------------------------------------------------------------------------------------------------------------------------
Moreover, especially at the frontiers of the discipline of international [p97] law, it needs to be multi-disciplinary, drawing from other disciplines
such as history, sociology, anthropology, and psychology such wisdom as may
be relevant for its purpose. On the need for the international law of the
future to be interdisciplinary, 1 refer to another recent extra-judicial
observation of that distinguished former President of the Court that:
"there should be a much greater, and a practical, recognition by
international lawyers that the rule of law in international affairs, and the
establishment of international justice, are inter-disciplinary
subjects"FN21.
------------------------------------------------------------------------------------------------------------
FN21"International
Lawyers and the Progressive Development of International Law", Theory of
International Law at the Threshold of the 2Isl Century, Jerzy Makarczyk
(ed.), 1996, p. 423.
------------------------------------------------------------------------------------------------------------
Especially where this Court is concerned, "the essence of true
universality"FN22 of the institution is captured in the language of Article
9 of the Statute of the International Court of Justice which requires the
"representation of the main forms of civilization and of the principal
legal systems of the world" (emphasis added). The struggle for the
insertion of the italicized words in the Court's Statute was a hard one, led
by the Japanese representative, Mr. AdatciFN23, and, since this concept has
thus been integrated into the structure and the Statute of the Court, I see
the Court as being charged with a duty to draw upon the wisdom of the
world's several civilizations, where such a course can enrich its insights
into the matter before it. The Court cannot afford to be monocultural,
especially where it is entering newly developing areas of law.
---------------------------------------------------------------------------------------------------------------------- FN22
Jennings, "Universal International Law in a Multicultural World", op. eit.,
p. 189.
FN23 On this subject of contention, see Proves- Verbaux of the Proceedings
of the Committee. 16 June-24 July 1920, esp. p. 136.
---------------------------------------------------------------------------------------------------------------------
This case touches an area where many such insights can be drawn to the
enrichment of the developing principles of environmental law and to a
clarification of the principles the Court should apply.
It is in this spirit that I approach a principle which, for the first time
in its jurisprudence, the Court is called upon to apply a principle which
will assist in the delicate task of balancing two considerations of
enormous importance to the contemporary international scene and,
potentially, of even greater importance to the future.
(e) Some Wisdom from the Past Relating to Sustainable Development
There are some principles of traditional legal systems that can be woven
into the fabric of modern environmental law. They are specially pertinent to
the concept of sustainable development which was well [p98] recognized in
those systems. Moreover, several of these systems have particular relevance
to this case, in that they relate to the harnessing of streams and rivers
and show a concern that these acts of human interference with the course of
nature should always be conducted with due regard to the protection of the
environment. In the context of environmental wisdom generally, there is
much to be derived from ancient civilizations and traditional legal systems
in Asia, the Middle East, Africa, Europe, the Americas, the Pacific, and
Australia in fact, the whole world. This is a rich source which modern
environmental law has left largely untapped.
As the Court has observed, "Throughout the ages mankind has, for economic
and other reasons, constantly interfered with nature." (Judgment, para.
140.)
The concept of reconciling the needs of development with the protection of
the environment is thus not new. Millennia ago these concerns were noted and
their twin demands well reconciled in a manner so meaningful as to carry a
message to our age.
I shall start with a system with which I am specially familiar, which also
happens to have specifically articulated these two needs development and
environmental protection in its ancient literature. I refer to the ancient
irrigation-based civilization of Sri LankaFN24. It is a system which, while
recognizing the need for development and vigorously implementing schemes to
this end, at the same time specifically articulated the need for
environmental protection and ensured that the technology it employed paid
due regard to environmental considerations. This concern for the environment
was reflected not only in its literature and its technology, but also in
its legal system, for the felling of certain forests was prohibited, game
sanctuaries were established, and royal edicts decreed that the natural
resource of water was to be used to the last drop without any wastage.
---------------------------------------------------------------------------------------------------------------------- FN24 This
was not an isolated civilization, but one which maintained international
relations with China, on the one hand, and with Rome (1st c.) and Byzantium
(4th c), on the other. The presence of its ambassadors at the Court of Rome
is recorded by Pliny (lib. vi c. 24), and is noted by Grotius De Jure
Prucclae Commenlarius, G. L. Williams and W. H. Zeydol (eds.). Classics of
International Law, James B. Scott (ed.), 1950, pp. 240-241. This diplomatic
representation also receives mention in world literature (e.g., Milton,
Paradise Regained, Book IV). See also Grotius' reference to the detailed
knowledge of Ceylon possessed by the Romans Grotius, Mare Liberum (Freedom
of the Seas), trans. R. van Deman Magoffin, p. 12. The island was known as
Taprobane to the Greeks, Serendib to the Arabs, Lanka to the Indians, Ceilao
to the Portuguese, and Zeylan to the Dutch. Its trade with the Roman Empire
and the Far East was noted by Gibbon
---------------------------------------------------------------------------------------------------------------------
This system, some details of which I shall touch onFN25, is described by [p99] Arnold Toynbee in his panoramic survey of civilizations. Referring to it
as an "amazing system of waterworks"FN26, Toynbee describesFN27 how hill
streams were tapped and their water guided into giant storage tanks, some of
them four thousand acres in extentFN28, from which channels ran on to other
larger tanksFN29. Below each great tank and each great channel were hundreds
of little tanks, each the nucleus of a village.
---------------------------------------------------------------------------------------------------------------------- FN25
It is an aid to the recapitulation of the matters mentioned that the edicts
and works I shall refer to have been the subject of written records,
maintained contemporaneously and over the centuries. See footnote 38 below.
FN26 Arnold J. Toynbee, A Study of History, Somervell's Abridgment, 1960,
Vol. 1, p. 257.
FN27 Ibid., p. 81, citing John Still, The Jungle Tide.
FN28 Several of these are still in use, e.g., the Tissawewa (3rd c. BC); the
Nuwarawewa (3rd c. BC); the Minneriya tank (275 AD); the Kalawewa (5th c.
AD); and the Parakrama Samudra (Sea of Parakrama, 11th c. AD).
FN29 The technical sophistication of this irrigation system has been noted
also in Joseph Needham's monumental work on Science and Civilization in
China. Needham, in describing the ancient irrigation works of China, makes
numerous references to the contemporary irrigation works of Ceylon, which
he discusses at some length. See especially, Vol. 4, Physics and Physical
Technology, 1971, pp. 368 et seq. Also p. 215: "We shall see how skilled the
ancient Ceylonese were in this art."
---------------------------------------------------------------------------------------------------------------------
The concern for the environment shown by this ancient irrigation system has
attracted study in a recent survey of the Social and Environmental Effects
of Large DamsFN30, which observes that among the environmentally related
aspects of its irrigation systems were the "erosion control tank" which
dealt with the problem of silting by being so designed as to collect
deposits of silt before they entered the main water storage tanks. Several
erosion control tanks were associated with each village irrigation system.
The significance of this can well be appreciated in the context of the
present case, where the problem of silting has assumed so much importance.
---------------------------------------------------------------------------------------------------------------------- FN30
Edward Goldsmith and Nicholas Hildyard, The Social and Environmental Effects
of Large Dams, 1985, pp. 291-304.
---------------------------------------------------------------------------------------------------------------------
Another such environmentally related measure consisted of the "forest tanks"
which were built in the jungle above the village, not for the purpose of
irrigating land, but to provide water to wild animalsFN31.
---------------------------------------------------------------------------------------------------------------------- FN31
For these details, see Goldsmith and Hildyard, ibid., pp. 291 and 296. The
same authors observe:
"Sri Lanka is covered with a network of thousands of man-made lakes and
ponds, known locally as tanks (after tanque, the Portuguese word for
reservoir). Some are truly massive, many are thousands of years old, and
almost all show a high degree of sophistication in their construction and
design. Sir James Emerson Tennent, the nineteenth century historian,
marvelled in particular at the numerous channels that were dug underneath
the bed of each lake in order to ensure that the flow of water was 'constant
and equal as long as any water remained in the tank'."
--------------------------------------------------------------------------------------------------------------------
[p100]
This system of tanks and channels, some of them two thousand years old,
constitute in their totality several multiples of the irrigation works
involved in the present scheme. They constituted development as it was
understood at the time, for they achieved in Toynbee's words, "the arduous
feat of conquering the parched plains of Ceylon for agriculture"FN32. Yet
they were executed with meticulous regard for environmental concerns, and
showed that the concept of sustainable development was consciously practised
over two millennia ago with much success.
---------------------------------------------------------------------------------------------------------------------- FN32
Toynbee, op. cit., p. 81. Andrew Carnegie, the donor of the Peace Palace,
the seat of this Court, has described this ancient work of development in
the following terms:
"The position held by Ceylon in ancient days as the great granary of
Southern Asia explains the precedence accorded to agricultural pursuits.
Under native rule the whole island was brought under irrigation by means of
artificial lakes, constructed by dams across ravines, many of them of great
extent one still existing is twenty miles in circumference but the
system has been allowed to fall into decay." (Andrew Carnegie, Round the
World, 1879 (1933 ed.), pp. 155-160.)
---------------------------------------------------------------------------------------------------------------------
Under this irrigation system, major rivers were dammed and reservoirs
created, on a scale and in a manner reminiscent of the damming which the
Court saw on its inspection of the dams in this case.
This ancient concept of development was carried out on such a large scale
that, apart from the major reservoirsFN33, of which there were several[p101] dozen, between 25,000 and 30,000 minor reservoirs were fed from these
reservoirs through an intricate network of canalsFN34.
---------------------------------------------------------------------------------------------------------------------
FN33 The first of these major tanks was thought to have been constructed in
504 BC (Sir James Emerson Tennent, Ceylon, 1859, Vol. I, p. 367). A few
examples, straddling 15 centuries, were:
the Vavunik-kulam (3rd c. BC) (1,975 acres water surface, 596 million
cubic feet water capacity); the Pavatkulam (3rd or 2nd c. BC) (2,029 acres
water surface, 770 million cubic feet water capacity) Parker, Ancient
Ceylon, 1909. pp. 363, 373;
the Tissawewa (3rd c. BC); and the Nuwarawewa (3rd c. BC), both still in
service and still supplying water to the ancient capital Anuradhapura, which
is now a provincial capital;
the Minneriya tank (275 AD) ("The reservoir upwards of twenty miles in
circumference ... the great embankment remains nearly perfect") (Tennent,
op. cil.. Vol. II, p. 600);
the Topawewa (4th c. AD), area considerably in excess of 1,000 acres;
the Kaluwewa (5th c. AD) embankment 3.25 miles long, rising to a height
of 40 feet, tapping the river Kala Oya and supplying water to the capital
Anuradhapura through a canal 50 miles in length;
the Yodawewa (5th c. AD). Needham describes this as "A most grandiose
conception . . . the culmination of Ceylonese hydraulics ... an artificial
lake with a six-and-a-half mile embankment on three sides of a square, sited
on a sloping plain and not in a river valley at all." It was fed by a
50-mile canal from the river Malvatu-Oya;
the Parakrama Samudra (Sea of Parakrama) (11th c. AD), embankment 9 miles
long, up to 40 feet high, enclosing 6,000 acres of water area. (Brohier,
Ancient Irrigation Works in Ceylon, 1934, p. 9.)
FN34 On the irrigation systems, generally, see H. Parker, Ancient Ceylon,
op. cit.: R. L. Brohier, Ancient Irrigation Works in Ceylon, 1934; Edward
Goldsmith and Nicholas Hildyard, op. cit., pp. 291-304. Needham, describing
the ancient canal system of China, observes that "it was comparable only
with the irrigation contour canals of Ceylon, not with any work in Europe"
(op. cit., Vol. 4, p. 359).
---------------------------------------------------------------------------------------------------------------------
The philosophy underlying this gigantic systemFN35, which for upwards of two
thousand years served the needs of man and nature alike, was articulated in
a famous principle laid down by an outstanding monarchFN36 that "not even a
little water that comes from the rain is to flow into the ocean without
being made useful to man"FN37. According to the ancient chroniclesFN38,
these works were undertaken "for the benefit of the country", and "out of
compassion for all living creatures"FN39. This complex of irrigation works
was aimed at making the entire country a granary. They embodied the concept
of development par excellence.
---------------------------------------------------------------------------------------------------------------------- FN35"so
vast were the dimensions of some of these gigantic tanks that many still in
existence cover an area from fifteen to twenty miles in circumference"
(Tennent, op. cit., Vol. I, p. 364).
FN36 King Parakrama Bahu (1153-1 186 AD). This monarch constructed or
restored 163 major tanks, 2,376 minor tanks, 3,910 canals, and 165 dams. His
masterpiece was the Sea of Parakrama, referred to in footnote 33. All of
this was conceived within the environmental philosophy of avoiding any
wastage of natural resources.
FN37 See Toynbee's reference to this:
"The idea underlying the system was very great. It was intended by the
tank-building kings that none of the rain which fell in such abundance in
the mountains should reach the sea without paying tribute to man on the
way." (Op. cit., p. 81.)
FN38 The Mahavamsa, Tumour's translation. Chap. XXXVII, p. 242. The
Mahavamsa was the ancient historical chronicle of Sri Lanka, maintained
contemporaneously by Buddhist monks, and an important source of dating for
South Asian history. Commencing at the close of the 4th century AD, and
incorporating earlier chronicles and oral traditions dating back a further
eight centuries, this constitutes a continuous record for over 15 centuries
see The Mahavamsa or The Great Chronicle of Ceylon, translated into
English by Wilhelm Geiger, 1912, Introduction, pp. ix-xii. The King's
statement, earlier referred to, is recorded in the Mahavamsa as follows:
"In the realm that is subject to me are . . . but few fields which are
dependent on rivers with permanent flow . . . Also by many mountains, thick
jungles and by widespread swamps my kingdom is much straitened. Truly, in
such a country not even a little water that comes from the rain must flow
into the ocean without being made useful to man." (Ibid., Chap. LXVIII,
verses 8-12. )
FN39 See also, on this matter, Emerson Tennent, op. cit., Vol. I, p. 311
---------------------------------------------------------------------------------------------------------------------
Just as development was the aim of this system, it was accompanied by a
systematic philosophy of conservation dating back to at least the third
century BC. The ancient chronicles record that when the King (Devan-ampiya
Tissa, 247-207 BC) was on a hunting trip (around 223 BC), the ArahatFN40
Mahinda, son of the Emperor Asoka of India, preached to him [p102] a sermon
on Buddhism which converted the king. Here are excerpts from that sermon:
---------------------------------------------------------------------------------------------------------------------- FN40
A person who has attained a very high state of enlightenment. For its more
technical meaning, see Walpola Rahula. History of Buddhism in Ceylon, 1956,
pp. 217-221.
---------------------------------------------------------------------------------------------------------------------
"O great King, the birds of the air and the beasts have as equal a right to
live and move about in any part of the land as thou. The land belongs to the
people and all living beings; thou art only the guardian of it."FN41
------------------------------------------------------------------------------------------------------------- FN41
This sermon is recorded in The Mahavamsa, Chap. XIV.
------------------------------------------------------------------------------------------------------------
This sermon, which indeed contained the first principle of modern
environmental law the principle of trusteeship of earth resources caused
the king to start sanctuaries for wild animals a concept which continued
to be respected for over twenty centuries. The traditional legal system's
protection of fauna and flora, based on this Buddhist teaching, extended
well into the eighteenth centuryFN42
---------------------------------------------------------------------------------------------------------------------- FN42
See K. N. Jayatilleke, "The Principles of International Law in Buddhist
Doctrine", Recueil des cours de l'Acadιmie de droit international, Vol. 120,
1967, p. 558.
---------------------------------------------------------------------------------------------------------------------.
The sermon also pointed out that even birds and beasts have a right to
freedom from fearFN43.
---------------------------------------------------------------------------------------------------------------------- FN43
For this idea in the scriptures of Buddhism, see Digha Nikaya, III, Pali
Text Society, p. 850.
---------------------------------------------------------------------------------------------------------------------
The notion of not causing harm to others and hence sic utere tuo ut alienum
non laedas was a central notion of Buddhism. It translated well into
environmental attitudes. "Alienum " in this context would be extended by
Buddhism to future generations as well, and to other component elements of
the natural order beyond man himself, for the Buddhist concept of duty had
an enormously long reach.
This marked concern with environmental needs was reflected also in royal
edicts, dating back to the third century BC, which ordained that certain
primeval forests should on no account be felled. This was because adequate
forest cover in the highlands was known to be crucial to the irrigation
system as the mountain jungles intercepted and stored the monsoon rainsFN44.
They attracted the rain which fed the river and irrigation systems of the
country, and were therefore considered vital.
---------------------------------------------------------------------------------------------------------------------- FN44
Goldsmith and Hildyard, op. cit., p. 299. See, also, R. L. Brohier, "The
Interrelation of Groups of Ancient Reservoirs and Channels in Ceylon",
Journal of the Royal Asiatic Society (Ceylon), 1937, Vol. 34, No. 90, p. 65.
Brohier's study is one of the foremost authorities on the subject.
---------------------------------------------------------------------------------------------------------------------
Environmental considerations were reflected also in the actual work of
construction and engineering. The ancient engineers devised an answer to the
problem of silting (which has assumed much importance in the present case),
and they invented a device (the bisokotuwa or valve pit), the counterpart of
the sluice, for dealing with this environmental prob-[p103]lemFN45, by
controlling the pressure and the quantity of the outflow of water when it
was released from the reservoirFN46. Weirs were also built, as in the case
of the construction involved in this case, for raising the levels of river
water and regulating its flowFN47.
---------------------------------------------------------------------------------------------------------------------- FN45
H. Parker, Ancient Ceylon, op. cit., p. 379:
"Since about the middle of the last century, open wells, called 'valve
towers' when they stand clear of the embankment or 'valve pits' when they
are in it, have been built in numerous reservoirs in Europe. Their duty is
to hold the valves, and the lifting-gear for working them, by means of which
the outward flow of water is regulated or totally stopped. Such also was the
function of the bisokotuwa of the Sinhalese engineers; they were the first
inventors of the valve-pit more than 2,100 years ago."
FN46 H. Parker, op. cit. Needham observes:
"Already in the first century AD they [the Sinhalese engineers] understood
the principle of the oblique weir . . . But perhaps the most striking
invention was the intake-towers or valve towers (Bisokotuwa) which were
fitted in the reservoirs perhaps from the 2nd Century BC onwards, certainly
from the 2nd Century AD ... In this way silt and scum-free water could be
obtained and at the same time the pressure-head was so reduced as to make
the outflow controllable." (Joseph Needham, Science and Civilization in
China, op. cit.. Vol. 4, p. 372.)
FN47 K. M. de Silva, A History of Sri Lanka, 1981, p. 30.
---------------------------------------------------------------------------------------------------------------------
This juxtaposition in this ancient heritage of the concepts of development
and environmental protection invites comment immediately from those familiar
with it. Anyone interested in the human future would perceive the
connection between the two concepts and the manner of their reconciliation.
Not merely from the legal perspective does this become apparent, but even
from the approaches of other disciplines.
Thus Arthur C. Clarke, the noted futurist, with that vision which has
enabled him to bring high science to the service of humanity, put his finger
on the precise legal problem we are considering when he observed: "the small
Indian Ocean island . . . provides textbook examples of many modern
dilemmas: development versus environment"FN48, and proceeds immediately to
recapitulate the famous sermon, already referred to, relating to the
trusteeship of land, observing, "For as King Deva-nampiya Tissa was told
three centuries before the birth of Christ, we are its guardians not its
owners."FN49
---------------------------------------------------------------------------------------------------------------------- FN48
Arthur C. Clarke, "Sri Lanka's Wildlife Heritage", National Geographic,
August 1983, No. 2, p. 254; emphasis added.
FN49 Arthur C. Clarke has also written:
"Of all Ceylon's architectural wonders, however, the most remarkable and
certainly the most useful is the enormous irrigation system which, for
over two thousand years, has brought prosperity to the rice farmers in
regions where it may not rain for six months at a time. Frequently ruined,
abandoned and rebuilt, this legacy of the ancient engineers is one of the
island's most precious possessions. Some of its artificial lakes are ten or
twenty kilometres in circumference, and abound with birds and wildlife."
(The View from Serendip, 1977, p. 121.)
---------------------------------------------------------------------------------------------------------------------
The task of the law is to convert such wisdom into practical terms [p104]
and the law has often lagged behind other disciplines in so doing. Happily
for international law, there are plentiful indications, as recited earlier
in this opinion, of that degree of "general recognition among states of a
certain practice as obligatory"FN50 to give the principle of sustainable
development the nature of customary law.
---------------------------------------------------------------------------------------------------------------------- FN50
J. Brierly, The Law of Nations, op. cit., p. 61.
---------------------------------------------------------------------------------------------------------------------
This reference to the practice and philosophy of a major irrigation
civilization of the pre-modern worldFN51 illustrates that when technology
on this scale was attempted it was accompanied by a due concern for the
environment. Moreover, when so attempted, the necessary response from the
traditional legal system, as indicated above, was one of affirmative steps
for environmental protection, often taking the form of royal decrees, apart
from the practices of a sophisticated system of customary law which
regulated the manner in which the irrigation facilities were to be used and
protected by individual members of the public.
---------------------------------------------------------------------------------------------------------------------- FN51"It
is possible that in no other part of the world are there to be found within
the same space the remains of so many works for irrigation, which are at the
same time of such great antiquity and of such vast magnitude as in Ceylon .
. ." (Bailey, Report on Irrigation in Uva, 1859; see also R. L. Brohier,
Ancient Irrigation Works in Ceylon, op. cit.,
P. l);
"No people in any age or country had so great practice and experience in the
construction of works for irrigation." (Sir James Emerson Tennent, op.
cit.. Vol. I, p. 468);
"The stupendous ruins of their reservoirs are the proudest monuments which
remain of the former greatness of their country . . . Excepting the
exaggerated dimensions of Lake Moeris in Central Egypt, and the mysterious
'Basin of Al Aram' ... no similar constructions formed by any race, whether
ancient or modern, exceed in colossal magnitude the stupendous tanks of
Ceylon." (Sir James Emerson Tennent, quoted in Brohier, supra, p. 1.)
---------------------------------------------------------------------------------------------------------------------
The foregoing is but one illustrative example of the concern felt by prior
legal systems for the preservation and protection of the environment. There
are other examples of complex irrigation systems that have sustained
themselves for centuries, if not millennia.
My next illustration comes from two ancient cultures of sub-Saharan Africa
those of the Sonjo and the Chagga, both Tanzanian tribesFN52. Their
complicated networks of irrigation furrows, collecting water from the
mountain streams and transporting it over long distances to the fields
below, have aroused the admiration of modern observers not merely for their
technical sophistication, but also for the durability of the complex
irrigation systems they fashioned. Among the Sonjo, it was considered to be
the sacred duty of each generation to ensure that the system was kept in
good repair and all able-bodied men in the villages were expected to take
partFN53. The system comprised a fine network of small canals, reinforced by
a superimposed network of larger channels. The water did [p105] not enter
the irrigation area unless it was strictly required, and was not allowed to
pass through the plots in the rainy season. There was thus no
over-irrigation, salinity was reduced, and water-borne diseases avoidedFN54
---------------------------------------------------------------------------------------------------------------------- FN52
Goldsmith and Hildyard, op. cit., pp. 282-291.
FN53 Ibid., pp. 284-285.
FN54 Goldsmith and Hildyard, op. cit., p. 284.
---------------------------------------------------------------------------------------------------------------------
Sir Charles Dundas, who visited the Chagga in the first quarter of this
century, was much impressed by the manner in which, throughout the long
course of the furrows, society was so organized that law and order
prevailedFN55. Care of the furrows was a prime social duty, and if a furrow
was damaged, even accidentally, one of the elders would sound a horn in the
evening (which was known as the call to the furrows), and next morning
everyone would leave their normal work and set about the business of repair.
The furrow was a social asset owned by the clanFN57.
---------------------------------------------------------------------------------------------------------------------- FN55
Sir Charles Dundas, Kilimanjaro and lis Peoples, 1924, p. 262.
FN56 Goldsmith and Hildyard, op. cit., p. 289.
FN57 See further Fidelio T. Masao, "The Irrigation System in Uchagga: An
Ethno-Historical Approach", Tanzania Notes and Records, No. 75, 1974.
---------------------------------------------------------------------------------------------------------------------
Another example is that of the qanatsFN58 of Iran, of which there were
around 22,000, comprising more than 170,000 milesFN59 of underground
irrigation channels built thousands of years ago, and many of them still
functioningFN60. Not only is the extent of this system remarkable, but also
the fact that it has functioned for thousands of years and, until recently,
supplied Iran with around 75 per cent of the water used for both irrigation
and domestic purposes.
---------------------------------------------------------------------------------------------------------------------- FN58
Qanats comprise a series of vertical shafts dug down to the aquifer and
joined by a horizontal canal see Goldsmith and Hildyard, op. cit., p. 277.
FN59 Some idea of the immensity of this work can be gathered from the fact
that it would cost around one million dollars to build an eight kilometres
qanat with an average tunnel depth of 15 metres (ibid., p. 280).
FN60 Ibid., p. 277.
---------------------------------------------------------------------------------------------------------------------
By way of contrast, where the needs of the land were neglected, and massive
schemes launched for urban supply rather than irrigation, there was
disaster. The immense works in the Euphrates Valley in the third millennium
BC aimed not at improving the irrigation system of the local tribesmen, but
at supplying the requirements of a rapidly growing urban society (e.g., a
vast canal built around 2400 BC by King Entemenak) led to seepage, flooding
and over-irrigationFN61. Traditional farming methods and later irrigation
systems helped to overcome the resulting problems of waterlogging and
salinization.
---------------------------------------------------------------------------------------------------------------------- FN61
Goldsmith and Hildyard, op. cit., p. 308.
---------------------------------------------------------------------------------------------------------------------
China was another site of great irrigation works, some of which are still in
use over two millennia after their construction. For example, the ravages of
the Mo river were overcome by an excavation through a [p106] mountain and
the construction of two great canals. Needham describes this as "one of the
greatest of Chinese engineering operations which, now 2,200 years old, is
still in use today"FN62. An ancient stone inscription teaching the art of
river control says that its teaching "holds good for a thousand
autumns"FN63. Such action was often inspired by the philosophy recorded in
the Tao Te Ching which "with its usual gemlike brevity says 'Let there be no
action [contrary to Nature] and there will be nothing that will not be well
regulated'".FN64 Here, from another ancient irrigation civilization, is yet
another expression of the idea of the rights of future generations being
served through the harmonization of human developmental work with respect
for the natural environment.
---------------------------------------------------------------------------------------------------------------------- FN62
Op. cit., Vol. 4, p. 288.
FN63 Ibid., p. 295.
FN64 Needham, Science and Civilization in China, Vol. 2, History of
Scientific Thought, 1969, p. 69.
---------------------------------------------------------------------------------------------------------------------
Regarding the Inca civilization at its height, it has been observed that it
continually brought new lands under cultivation by swamp drainage, expansion
of irrigation works, terracing of hillsides and construction of irrigation
works in dry zones, the goal being always the same better utilization of
all resources so as to maintain an equilibrium between production and
consumptionFN65. In the words of a noted writer on this civilization, "in
this respect we can consider the Inca civilization triumphant, since it
conquered the eternal problem of maximum use and conservation of soil"FN66.
Here, too, we note the harmonization of developmental and environmental
considerations.
---------------------------------------------------------------------------------------------------------------------- FN65
Jorge E. Hardoy, Pre-Columbian Cities, 1973, p. 415.
FN66 John Collier, Los indios de las Americas, 1960, cited in Hardoy, op.
cit., p. 415. See also Donald Collier, "Development of Civilization on the
Coast of Peru", in Irrigation Civilizations : A Comparative Study, Julian H.
Steward (ed.), 1955.
---------------------------------------------------------------------------------------------------------------------
Many more instances can be cited of irrigation cultures which accorded due
importance to environmental considerations and reconciled the rights of
present and future generations. I have referred to some of the more
outstanding. Among them, I have examined one at greater length, partly
because it combined vast hydraulic development projects with a meticulous
regard for environmental considerations, and partly because both development
and environmental protection are mentioned in its ancient records. That is
sustainable development par excellence; and the principles on which it was
based must surely have a message for modern law.
Traditional wisdom which inspired these ancient legal systems was able to
handle such problems. Modern legal systems can do no less, achieving a blend
of the concepts of development and of conservation of the environment,
which alone does justice to humanity's obligations to itself and [p107] to
the planet which is its home. Another way of viewing the problem is to look
upon it as involving the imperative of balancing the needs of the present
generation with those of posterity.
In relation to concern for the environment generally, examples may be cited
from nearly every traditional system, ranging from Australasia and the
Pacific Islands, through Amerindian and African cultures to those of ancient
Europe. When Native American wisdom, with its deep love of nature, ordained
that no activity affecting the land should be undertaken without giving
thought to its impact on the land for seven generations to comeFN67; when
African tradition viewed the human community as threefold past, present
and future and refused to adopt a one-eyed vision of concentration on the
present; when Pacific tradition despised the view of land as merchandise
that could be bought and sold like a common article of commerceFN68, and
viewed land as a living entity which lived and grew with the people and upon
whose sickness and death the people likewise sickened and died; when
Chinese and Japanese culture stressed the need for harmony with nature; and
when Aboriginal custom, while maximizing the use of all species of plant
and animal life, yet decreed that no land should be used by man to the point
where it could not replenish itselfFN69, these varied cultures were
reflecting the ancient wisdom of the human family which the legal systems of
the time and the tribe absorbed, reflected and turned into principles whose
legal validity cannot be denied. Ancient Indian teaching so respected the
environment that it was illegal [p108] to cause wanton damage, even to an
enemy's territory in the course of military conflictFN70.
---------------------------------------------------------------------------------------------------------------------- FN67
On Native American attitudes to land, see Guruswamy, Palmer and Weston
(eds.), International Environmental Law and World Order, 1994, pp. 298-299.
On American Indian attitudes, see further J. Callicott, "The Traditional
American Indian and Western European Attitudes towards Nature: An Overview",
Environmental Ethics, 1982, Vol. 4, p. 293; A. Wiggins, "Indian Rights and
the Environment", Yale J. Int'l Law, 1993, Vol. 18, p. 345; J. Hughes,
American Indian Ecology, 1983.
FN68 A Pacific Islander, giving evidence before the first Land Commission in
the British Solomons (1919-1924), poured scorn on the concept that land
could be treated "as if it were a thing like a box" which could be bought
and sold, pointing out that land was treated in his society with respect and
with due regard for the rights of future generations. (Peter G. Sack, Land
between Two Laws, 1993, p. 33.)
FN69 On Aboriginal attitudes to land, see E. M. Eggleston, Fear, Favour and
Affection, 1976. For all their concern with the environment, the Aboriginal
people were not without their own development projects:
"There were remarkable Aboriginal water control schemes at Lake Condah,
Toolondo and Mount William in south-western Victoria. These were major
engineering feats, each involving several kilometres of stone channels
connecting swamp and watercourses.
At Lake Condah, thousands of years before Leonardo da Vinci studied the
hydrology of the northern Italian lakes, the original inhabitants of
Australia perfectly understood the hydrology of the site. A sophisticated
network of traps, weirs and sluices were designed . . ." (Stephen Johnson et
a!.. Engineering and Society: An Australian Perspective, 1995, p. 35.)
FN70 Nagendra Singh, Human Rights and the Future of Mankind, 1981, p. 93.
---------------------------------------------------------------------------------------------------------------------
Europe, likewise, had a deep-seated tradition of love for the environment,
a prominent feature of European culture, until the industrial revolution
pushed these concerns into the background. Wordsworth in England, Thoreau
in the United States, Rousseau in France, Tolstoy and Chekhov in Russia,
Goethe in Germany spoke not only for themselves, but represented a
deep-seated love of nature that was instinct in the ancient traditions of
Europe traditions whose gradual disappearance these writers lamented in
their various waysFN71.
---------------------------------------------------------------------------------------------------------------------- FN71
Commenting on the rise of naturalism in all the arts in Europe in the later
Middle Ages, one of this century's outstanding philosophers of science has
observed:
"The whole atmosphere of every art exhibited direct joy in the apprehension
of the things around us. The craftsmen who executed the later mediaeval
decorative sculpture, Giotto, Chaucer, Wordsworth, Walt Whitman, and at the
present day the New England poet Robert Frost, are all akin to each other in
this respect." (Alfred North Whitehead, Science and the Modern World, 1926,
p. 17.)
---------------------------------------------------------------------------------------------------------------------
Indeed, European concern with the environment can be traced back through the
millennia to such writers as Virgil, whose Georgics, composed between 37
and 30 BC, extols the beauty of the Italian countryside and pleads for the
restoration of the traditional agricultural life of Italy, which was being
damaged by the drift to the citiesFN72.
---------------------------------------------------------------------------------------------------------------------- FN72
See the Georgics, Book II, 1. 36 ff.; 1. 458 ff. Also Encyclopaedia
Britannica, 1992, Vol. 29, pp. 499-500.
---------------------------------------------------------------------------------------------------------------------
This survey would not be complete without a reference also to the
principles of Islamic law that inasmuch as all land belongs to God, land is
never the subject of human ownership, but is only held in trust, with all
the connotations that follow of due care, wise management, and custody for
future generations. The first principle of modern environmental law the
principle of trusteeship of earth resources is thus categorically
formulated in this system.
The ingrained values of any civilization are the source from which its legal
concepts derive, and the ultimate yardstick and touchstone of their
validity. This is so in international and domestic legal systems alike, save
that international law would require a worldwide recognition of those
values. It would not be wrong to state that the love of nature, the desire
for its preservation, and the need for human activity to respect the [p109]
requisites for its maintenance and continuance are among those pristine and
universal values which command international recognition.
The formalism of modern legal systems may cause us to lose sight of such
principles, but the time has come when they must once more be integrated
into the corpus of the living law. As stated in the exhaustive study of The
Social and Environmental Effects of Large Dams, already cited, "We should
examine not only what has caused modern irrigation systems to fail; it is
much more important to understand what has made traditional irrigation
societies to succeed."FN73
---------------------------------------------------------------------------------------------------------------------- FN73
Goldsmith and Hildyard, op. cit., p. 316.
---------------------------------------------------------------------------------------------------------------------
Observing that various societies have practised sustainable irrigation
agriculture over thousands of years, and that modern irrigation systems
rarely last more than a few decades, the authors pose the question whether
it was due to the achievement of a "congruence of fit" between their methods
and "the nature of land, water and climate"FN74. Modern environmental law
needs to take note of the experience of the past in pursuing this
"congruence of fit" between development and environmental imperatives.
---------------------------------------------------------------------------------------------------------------------- FN74
Ibid.
---------------------------------------------------------------------------------------------------------------------
By virtue of its representation of the main forms of civilization, this
Court constitutes a unique forum for the reflection and the revitalization
of those global legal traditions. There were principles ingrained in these
civilizations as well as embodied in their legal systems, for legal systems
include not merely written legal systems but traditional legal systems as
well, which modern researchers have shown to be no less legal systems than
their written cousins, and in some respects even more sophisticated and
finely tuned than the latterFN75.
---------------------------------------------------------------------------------------------------------------------
FN75 See, for example, M. Gluckman, African Traditional Law in Historical
Perspective, 1974, The Ideas in Barotse Jurisprudence, 2nd ed., 1972, and
The Judicial Process among the Barotse, 1955; A. L. Epstein, Juridical
Techniques and the Judicial Process: A Study in African Customary Law, 1954.
---------------------------------------------------------------------------------------------------------------------
Living law which is daily observed by members of the community, and
compliance with which is so axiomatic that it is taken for granted, is not
deprived of the character of law by the extraneous test and standard of
reduction to writing. Writing is of course useful for establishing
certainty, but when a duty such as the duty to protect the environment is so
well accepted that all citizens act upon it, that duty is part of the legal
system in questionFN76.
---------------------------------------------------------------------------------------------------------------------- FN76
On the precision with which these systems assigned duties to their members,
see Malinowski, Crime and Custom in Savage Society, 1926.
---------------------------------------------------------------------------------------------------------------------
Moreover, when the Statute of the Court described the sources of
international law as including the "general principles of law recognized
[p110]by civilized nations", it expressly opened a door to the entry of such
principles into modern international law.
(f) Traditional Principles That Can Assist in the Development of Modern
Environmental Law
As modern environmental law develops, it can, with profit to itself, take
account of the perspectives and principles of traditional systems, not
merely in a general way, but with reference to specific principles,
concepts, and aspirational standards.
Among those which may be extracted from the systems already referred to are
such far-reaching principles as the principle of trusteeship of earth
resources, the principle of intergenerational rights, and the principle that
development and environmental conservation must go hand in hand. Land is to
be respected as having a vitality of its own and being integrally linked to
the welfare of the community. When it is used by humans, every opportunity
should be afforded to it to replenish itself. Since flora and fauna have a
niche in the ecological system, they must be expressly protected. There is
a duty lying upon all members of the community to preserve the integrity
and purity of the environment.
Natural resources are not individually, but collectively, owned, and a
principle of their use is that they should be used for the maximum service
of people. There should be no waste, and there should be a maximization of
the use of plant and animal species, while preserving their regenerative
powers. The purpose of development is the betterment of the condition of the
people.
Most of them have relevance to the present case, and all of them can greatly
enhance the ability of international environmental law to cope with problems
such as these if and when they arise in the future. There are many routes of
entry by which they can be assimilated into the international legal system,
and modern international law would only diminish itself were it to lose
sight of them embodying as they do the wisdom which enabled the works of
man to function for centuries and millennia in a stable relationship with
the principles of the environment. This approach assumes increasing
importance at a time when such a harmony between humanity and its planetary
inheritance is a prerequisite for human survival.
***
Sustainable development is thus not merely a principle of modern
international law. It is one of the most ancient of ideas in the human
heritage. Fortified by the rich insights that can be gained from millennia
[p111] of human experience, it has an important part to play in the service
of international law.
B. The Principle of Continuing Environmental Impact Assessment
(a) The Principle of Continuing Environmental Impact Assessment
Environmental Impact Assessment (EIA) has assumed an important role in this
case.
In a previous opinionFN77 I have had occasion to observe that this
principle was gathering strength and international acceptance, and had
reached the level of general recognition at which this Court should take
notice of itFN78.
---------------------------------------------------------------------------------------------------------------------- FN77
Request for an Examination of the Situation in Accordance with Paragraph 63
of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New
Zealand v. France) Case, I.C.J. Reports 1995, p. 344. See, also, Legality of
the Use by a State of Nuclear Weapons in Armed Conflict, I.C.J. Reports
1996, p. 140.
FN78 Major international documents recognizing this principle (first
established in domestic law under the 1972 National Environmental Protection
Act of the United States) are the 1992 Rio Declaration (Principle 17);
United Nations General Assembly resolution 2995 (XXVII), 1972; the 1978 UNEP
Draft Principles of Conduct (Principle 5); Agenda 21 (paras. 7.41 (b) and
8.4); the 1974 Nordic Environmental Protection Convention (Art. 6); the 1985
EC Environmental Assessment Directive (Art. 3); and the 1991 Espoo
Convention. The status of the principle in actual practice is indicated also
by the fact that multilateral development banks have adopted it as an
essential precaution (World Bank Operational Directive 4.00).
---------------------------------------------------------------------------------------------------------------------
I wish in this opinion to clarify further the scope and extent of the
environmental impact principle in the sense that environmental impact
assessment means not merely an assessment prior to the commencement of the
project, but a continuing assessment and evaluation as long as the project
is in operation. This follows from the fact that EIA is a dynamic principle
and is not confined to a pre-project evaluation of possible environmental
consequences. As long as a project of some magnitude is in operation, EIA
must continue, for every such project can have unexpected conse-quences; and
considerations of prudence would point to the need for continuous
monitoring79.
---------------------------------------------------------------------------------------------------------------------- FN79
Trail Smelter Arbitration (United Nations, Reports of International Arbitral
Awards, (RIAA), 1941, Vol. Ill, p. 1907).
---------------------------------------------------------------------------------------------------------------------
The greater the size and scope of the project, the greater is the need for a
continuous monitoring of its effects, for EIA before the scheme can never be
expected, in a matter so complex as the environment, to anticipate every
possible environmental danger.
In the present case, the incorporation of environmental considerations into
the Treaty by Articles 15 and 19 meant that the principle of EIA was also
built into the Treaty. These provisions were clearly not restricted to EIA
before the project commenced, but also included the concept of
[p112] monitoring during the continuance of the project. Article 15 speaks
expressly of monitoring of the water quality during the operation of the
System of Locks, and Article 19 speaks of compliance with obligations for
the protection of nature arising in connection with the construction and
operation of the System of Locks.
Environmental law in its current state of development would read into
treaties which may reasonably be considered to have a significant impact
upon the environment, a duty of environmental impact assessment and this
means also, whether the treaty expressly so provides or not, a duty of
monitoring the environmental impacts of any substantial project during the
operation of the scheme.
Over half a century ago the Trail Smelter ArbitrationFN80 recognized the
importance of continuous monitoring when, in a series of elaborate
provisions, it required the parties to monitor subsequent performance under
the decisionFN81. It directed the Trail Smelter to install observation
stations, equipment necessary to give information of gas conditions and
sulphur dioxide recorders, and to render regular reports which the Tribunal
would consider at a future meeting. In the present case, the Judgment of the
Court imposes a requirement of joint supervision which must be similarly
understood and applied.
---------------------------------------------------------------------------------------------------------------------- FN80
RIAA, 1941, Vol. Ill, p. 1907.
FN81 See ibid., pp. 1934-1937.
---------------------------------------------------------------------------------------------------------------------
The concept of monitoring and exchange of information has gathered much
recognition in international practice. Examples are the Co-operative
Programme for the Monitoring and Evaluation of the Long-Range Transmission
of Air Pollutants in Europe, under the ECE Convention, the Vienna Convention
for the Protection of the Ozone Layer, 1985 (Arts. 3 and 4), and the
Convention on Long-Range Transboundary Air Pollution, 1979 (Art. 9)FN82.
There has thus been growing international recognition of the concept of
continuing monitoring as part of EIA.
---------------------------------------------------------------------------------------------------------------------- FN82
ILM, 1979, Vol. XVIII, p. 1442.
---------------------------------------------------------------------------------------------------------------------
The Court has indicated in its Judgment (para. 155 (2) (C)) that a joint
operational regime must be established in accordance with the Treaty of 16
September 1977. A continuous monitoring of the scheme for its environmental
impacts will accord with the principles outlined, and be a part of that
operational regime. Indeed, the 1977 Treaty, with its contemplated regime of
joint operation and joint supervision, had itself a built-in regime of
continuous joint environmental monitoring. This principle of environmental
law, as reinforced by the terms of the Treaty and as now incorporated into
the Judgment of the Court (para. 140), would require the Parties to take
upon themselves an obligation to set up the machinery for continuous
watchfulness, anticipation and evaluation [p113] at every stage of the
project's progress, throughout its period of active operation.
Domestic legal systems have shown an intense awareness of this need and have
even devised procedural structures to this end. In India, for example, the
concept has evolved of the "continuous mandamus" a court order which
specifies certain environmental safeguards in relation to a given project,
and does not leave the matter there, but orders a continuous monitoring of
the project to ensure compliance with the standards which the court has
ordainedFN83.
---------------------------------------------------------------------------------------------------------------------- FN83
For a reference to environmentally related judicial initiatives of the
courts of the SAARC Region, see the Proceedings of the Regional Symposium on
the Role of the Judiciary in Promoting the Rule of Law in the Area of
Sustainable Development, held in Colombo, Sri Lanka, 4-6 July 1997, shortly
to be published.
---------------------------------------------------------------------------------------------------------------------
EIA, being a specific application of the larger general principle of
caution, embodies the obligation of continuing watchfulness and
anticipation.
(b) The Principle of Contemporaneity in the Application of Environmental
Norms
This is a principle which supplements the observations just made regarding
continuing assessment. It provides the standard by which the continuing
assessment is to be made.
This case concerns a treaty that was entered into in 1977. Environmental
standards and the relevant scientific knowledge of 1997 are far in advance
of those of 1977. As the Court has observed, new scientific insights and a
growing awareness of the risks for mankind have led to the development of
new norms and standards:
"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." (Para. 140.)
This assumes great practical importance in view of the continued joint
monitoring that will be required in terms of the Court's Judgment.
Both Parties envisaged that the project they had agreed upon was not one
which would be operative for just a few years. It was to reach far into the
long-term future, and be operative for decades, improving in a permanent
way the natural features that it dealt with, and forming a lasting
contribution to the economic welfare of both participants.
If the Treaty was to operate for decades into the future, it could not [p114] operate on the basis of environmental norms as though they were frozen
in time when the Treaty was entered into.
This inter-temporal aspect of the present case is of importance to all
treaties dealing with projects impacting on the environment. Unfortunately,
the Vienna Convention offers very little guidance regarding this matter
which is of such importance in the environmental field. The provision in
Article 31, paragraph 3(c), providing that "any relevant rules of
international law applicable in the relations between the parties" shall be
taken into account, scarcely covers this aspect with the degree of clarity
requisite to so important a matter.
Environmental concerns are live and continuing concerns whenever the project
under which they arise may have been inaugurated. It matters little that an
undertaking has been commenced under a treaty of 1950, if in fact that
undertaking continues in operation in the year 2000. The relevant
environmental standards that will be applicable will be those of the year
2000.
As this Court observed in the Namibia case, "an international instrument
has to be interpreted and applied within the framework of the entire legal
system prevailing at the time of the interpretation" (Legal Consequences
for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advisory
Opinion, I.C.J. Reports 1971, p. 31, para. 53), and these principles are
"not limited to the rules of international law applicable at the time the
treaty was concluded"FN84.
---------------------------------------------------------------------------------------------------------------------- FN84
Oppenheim's International Law, R. Y. Jennings and A. Watts (eds.), 1992, p.
1275, note 21.
---------------------------------------------------------------------------------------------------------------------.
Environmental rights are human rights. Treaties that affect human rights
cannot be applied in such a manner as to constitute a denial of human rights
as understood at the time of their application. A Court cannot endorse
actions which are a violation of human rights by the stand-ards of their
time merely because they are taken under a treaty which dates back to a
period when such action was not a violation of human rights.
Support for this proposition can be sought from the opinion of Judge Tanaka
in South West Africa, when he observed that a new customary law could be
applied to the interpretation of an instrument entered into more than 40
years previously (I.C.J. Reports 1966, pp. 293-294). The ethical and human
rights related aspects of environmental law bring it within the category of
law so essential to human welfare that we cannot apply to today's problems
in this field the standards of yesterday. Judge Tanaka reasoned that a party
to a humanitarian instrument has no right to act in a manner which is today
considered inhuman, even though the action be taken under an instrument of
40 years ago. Likewise, no action should be permissible which is today
considered environmentally [p115] unsound, even though it is taken under an
instrument of more than 20 years ago.
Mention may also be made in this context of the observation of the European
Court of Human Rights in the Tyrer case that the Convention is a "living
instrument" which must be interpreted "in the light of present-day
conditions"FN85.
---------------------------------------------------------------------------------------------------------------------- FN85
Judgment of the Court. Tyrer case, 25 April 1978, para. 31, publ. Court A,
Vol. 26, at 15, 16.
---------------------------------------------------------------------------------------------------------------------
It may also be observed that we are not here dealing with questions of the
validity of the Treaty which fall to be determined by the principles
applicable at the time of the Treaty, but with the application of the
TreatyFN86. In the application of an environmental treaty, it is vitally
important that the standards in force at the time of application would be
the governing standards.
---------------------------------------------------------------------------------------------------------------------- FN86
See further Rosalyn Higgins, "Some Observations on the Inter-Temporal Rule
in International Law", in Theory of International Law at the Threshold of
the 21st Century, op. cit., p. 173.
---------------------------------------------------------------------------------------------------------------------
A recognition of the principle of contemporaneity in the application of
environmental norms applies to the joint supervisory regime envisaged in the
Court's Judgment, and will be an additional safeguard for protecting the
environmental interests of Hungary.
C. The Handling of Erga Omnes Obligations in Inter Partes Judicial Procedure
(a) The Factual Background: The Presence of the Elements of Estoppel
It is necessary to bear in mind that the Treaty of 1977 was not one that
suddenly materialized and was hastily entered into, but that it was the
result of years of negotiation and study following the first formulations of
the idea in the 1960s. During the period of negotiation and implementation
of the Treaty, numerous detailed studies were conducted by many experts and
organizations, including the Hungarian Academy of Sciences.
The first observation to be made on this matter is that Hungary went into
the 1977 Treaty, despite very clear warnings during the preparatory studies
that the Project might involve the possibility of environmental damage.
Hungary, with a vast amount of material before it, both for and against,
thus took a considered decision, despite warnings of possible danger to its
ecology on almost all the grounds which are advanced today.
Secondly, Hungary, having entered into the Treaty, continued to treat it as
valid and binding for around 12 years. As early as 1981, the Gov-[p116]
ernment of Hungary had ordered a reconsideration of the Project and
researchers had then suggested a postponement of the construction, pending
more detailed ecological studies. Yet Hungary went ahead with the
implementation of the Treaty.
Thirdly, not only did Hungary devote its own effort and resources to the
implementation of the Treaty but, by its attitude, it left Czechoslovakia
with the impression that the binding force of the Treaty was not in doubt.
Under this impression, and in pursuance of the Treaty which bound both
Parties, Czechoslovakia committed enormous resources to the Project. Hungary
looked on without comment or protest and, indeed, urged Czechoslovakia to
more expeditious action. It was clear to Hungary that Czechoslovakia was
spending vast funds on the Project resources clearly so large as to strain
the economy of a State whose economy was not particularly strong.
Fourthly, Hungary's action in so entering into the Treaty in 1977 was
confirmed by it as late as October 1988 when the Hungarian Parliament
approved of the Project, despite all the additional material available to it
in the intervening space of 12 years. A further reaffirmation of this
Hun-garian position is to be found in the signing of a Protocol by the
Deputy Chairman of the Hungarian Council of Ministers on 6 February 1989,
reaffirming Hungary's commitment to the 1977 Project. Hungary was in fact
interested in setting back the date of completion from 1995 to 1994.
Ninety-six days after the 1989 Protocol took effect, i.e., on 13 May 1989,
the Hungarian Government announced the immediate suspension for two months
of work at the Nagymaros site. It abandoned performance on 20 July 1989,
and thereafter suspended work on all parts of the Project. Formal
termination of the 1977 Treaty by Hungary took place in May 1992.
It seems to me that all the ingredients of a legally binding estoppel are
here presentFN87.
---------------------------------------------------------------------------------------------------------------------- FN87
On the application of principles of estoppel in the jurisprudence of this
Court and its predecessor, see Legal Status of Eastern Greenland, P.C.I.J.,
Series A/B, No. 53, p. 22; Fisheries (United Kingdom v. Norway), l.C.J.
Reports 1951, p. 116; Temple of Preah Vihear, l.C.J. Reports 1962, p. 151.
For an analysis of this jurisprudence, see the separate opinion of Judge
Ajibola in Territorial Dispute (Libyan Arab Jamahiriya/Chad), I.C.J. Reports
1994, pp. 77-83.
---------------------------------------------------------------------------------------------------------------------
The other Treaty partner was left with a vast amount of useless project
construction on its hands and enormous incurred expenditure which it had
fruitlessly undertaken.
(b) The Context of Hungary's Actions
In making these observations, one must be deeply sensitive to the fact that
Hungary was passing through a very difficult phase, having regard [p117] to
the epochal events that had recently taken place in Eastern Europe. Such
historic events necessarily leave their aftermath of internal tension. This
may well manifest itself in shifts of official policy as different emergent
groups exercise power and influence in the new order that was in the course
of replacing that under which the country had functioned for close on half a
century. One cannot but take note of these realities in understanding the
drastic official changes of policy exhibited by Hungary.
Yet the Court is placed in the position of an objective observer, seeking to
determine the effects of one State's changing official attitudes upon a
neighbouring State. This is particularly so where the latter was obliged, in
determining its course of action, to take into account the representations
emanating from the official repositories of power in the first State.
Whatever be the reason for the internal changes of policy, and whatever be
the internal pressures that might have produced this, the Court can only
assess the respective rights of the two States on the basis of their
official attitudes and pronouncements. Viewing the matter from the
standpoint of an external observer, there can be little doubt that there was
indeed a marked change of official attitude towards the Treaty, involving a
sharp shift from full official acceptance to full official rejection. It is
on this basis that the legal consequence of estoppel would follow.
(c) Is It Appropriate to Use the Rules of Inter Partes Litigation to
Determine Erga Omnes Obligations?
This recapitulation of the facts brings me to the point where I believe a
distinction must be made between litigation involving issues inter partes
and litigation which involves issues with an erga omnes connotation.
An important conceptual problem arises when, in such a dispute inter partes,
an issue arises regarding an alleged violation of rights or duties in
relation to the rest of the world. The Court, in the discharge of its
traditional duty of deciding between the parties, makes the decision which
is in accordance with justice and fairness between the parties. The
procedure it follows is largely adversarial. Yet this scarcely does justice
to rights and obligations of an erga omnes character least of all in cases
involving environmental damage of a far-reaching and irreversible nature. I
draw attention to this problem as it will present itself sooner or later in
the field of environmental law, and because (though not essential to the
decision actually reached) the facts of this case draw attention to it in a
particularly pointed form.
There has been conduct on the part of Hungary which, in ordinary [p118]
inter partes litigation, would prevent it from taking up wholly
contradictory positions. But can momentous environmental issues be decided
on the basis of such inter partes conduct? In cases where the erga omnes
issues are of sufficient importance, I would think not.
This is a suitable opportunity, both to draw attention to the problem and to
indicate concern at the inadequacies of such inter partes rules as
determining factors in major environmental disputes.
I stress this for the reason that inter partes adversarial procedures,
eminently fair and reasonable in a purely inter partes issue, may need
reconsideration in the future, if ever a case should arise of the imminence
of serious or catastrophic environmental danger, especially to parties other
than the immediate litigants.
Indeed, the inadequacies of technical judicial rules of procedure for the
decision of scientific matters has for long been the subject of scholarly
commentFN88.
---------------------------------------------------------------------------------------------------------------------- FN88
See, for example, Peter Brett, "Implications of Science for the Law", McGill
Law Journal, 1972, Vol. 18, p. 170, at p. 191. For a well-known comment from
the perspective of sociology, see Jacques Ellul, The Technological Society,
trans. John Wilkinson, 1964, pp. 251, 291-300.
---------------------------------------------------------------------------------------------------------------------
We have entered an era of international law in which international law
subserves not only the interests of individual States, but looks beyond them
and their parochial concerns to the greater interests of humanity and
planetary welfare. In addressing such problems, which transcend the
individual rights and obligations of the litigating States, international
law will need to look beyond procedural rules fashioned for purely inter
partes litigation.
When we enter the arena of obligations which operate erga omnes rather than
inter partes, rules based on individual fairness and procedural compliance
may be inadequate. The great ecological questions now surfacing will call
for thought upon this matter. International environmental law will need to
proceed beyond weighing the rights and obligations of parties within a
closed compartment of individual State self-interest, unrelated to the
global concerns of humanity as a whole.
The present case offers an opportunity for such reflection.
***
Environmental law is one of the most rapidly developing areas of
international law and I have thought it fit to make these observations on a
few aspects which have presented themselves for consideration in this case.
[p119] As this vital branch of law proceeds to develop, it will need all
the insights available from the human experience, crossing cultural and
disciplinary boundaries which have traditionally hemmed in the discipline
of international law.
(Signed) Christopher Gregory WEERAMANTRY.
[p120]
SEPARATE OPINION OF JUDGE BEDJAOUI
[Translation ]
1. In my view, the majority of the Court has not sufficiently clarified two
questions, i.e., the applicable law and the nature of the 1977 Treaty. In no
way do I disagree with the analysis of the majority of the Court on these
two points which will necessitate just a little finer shading and
clarification from me at a later stage.
2. However on two other questions I do have distinct reservations about the
position taken by the majority. These are first the legal characterization
of Variant C, considered by the majority to be unlawful only in its final
phase, i.e., the diversion of the Danube, and which I personally consider to
be an offence, whose unlawfulness in the final phase has a retroactive
effect upon each of the acts from first to last in the construction of
Variant C. Then there is the comprehensive analysis of the conduct of the
two Parties, that I see as constituting intersecting violations, nurturing
and nurtured by each other in turn in a tangle of causalities hard to
unravel, and generating two effectivites mutually acknowledged by the
Parties.
However, my reservations with regard to the position of the majority of the
Court on these various points did not prevent me from voting for the
operative part as a whole, since I agree with the tenor of the Judgment
overall.
***
3. I agree with the majority of the Court on its general approach to the
question of the applicable law. I shall refer to only one aspect of this
question that I consider to be fundamental and that touches upon the
applicability in this case of the conventions and other instruments
subsequent to the 1977 Treaty, and concerning the environment and the law
of international watercourses.
4. Hungary asks the Court to interpret the 1977 Treaty in the light of the
new, more developed and more exacting law of the environment, and of the law
of international watercourses. In support of its argument, it principally
relies upon the Advisory Opinion rendered by the Court in 1971 in the
Namibia case {Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South West Africa) notwithstanding Security
Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p.
16). In that case, the Court stated that a treaty should be interpreted
"within the framework of the entire legal system prevailing at the time of
the interpretation" (ibid., p. 31). [p121]
5. Taken literally and in isolation, there is no telling where this
statement may lead. The following precautions must be taken:
an "evolutionary interpretation" can only apply in the observation of the
general rule of interpretation laid down in Article 31 of the Vienna
Convention on the Law of Treaties;
the "definition" of a concept must not be confused with the "law"
applicable to that concept;
the "interpretation" of a treaty must not be confused with its "revision
".
A. The "Evolutionary Interpretation" Can Only Be Applied If the General Rule
of Interpretation in Article 31 of the Vienna Convention on the Law of
Treaties Is Respected
(a) Respect for the Principle Pacta Sunt Servanda Unless There Is
Incompatibility with a Peremptory Norm Appertaining to Jus Cogens
6. (i) It may be useful first to restate the obvious: pacta sunt servanda.
Inasmuch as the 1997 Treaty is regarded as being in force for the purposes
of a judicial interpretation, it is necessarily binding upon the parties.
They are under an obligation to perform it in good faith (Article 26 of the
1969 Vienna Convention).
(ii) Moreover the parties cannot, in principle, evade a traditional
interpretation based on Article
31 of the Vienna Convention unless the Treaty which they concluded in the
past has become incompatible with a norm of jus cogens. Both Hungary and
Slovakia appear to agree that this is not the case of the 1977 Treaty.
(b) The Interpretation of the Treaty Must Comply with the Intentions of the
Parties Expressed at the Time of Its Conclusion
7. (i) The Court's dictum, seized upon by Hungary in order to justify its
"evolutionary interpretation", needs to be put back into its proper context.
Before settling on this dictum, the Court had been at pains, in the same
1971 Opinion and on the same page, to emphasize "the primary necessity of
interpreting an instrument in accordance with the intentions of the parties
at the time of its conclusion" (I.C.J. Reports 1971, p. 31; emphasis added).
(ii) The intentions of the parties are presumed to have been influenced by
the law in force at the time the Treaty was concluded, the law which they
were supposed to know, and not by future law, as yet unknown. As Ambassador
Mustapha Kamil Yasseen, quoted by Hungary (Counter-Memorial of Hungary,
para. 6.13), put it, only international law existing [p122] when the Treaty
was concluded "could influence the intention of the Contracting States . .
., as the law which did not yet exist at that time could not logically have
any influence on this intention"FN1.
---------------------------------------------------------------------------------------------------------------------- FN1
M. K. Yasseen, "L'interprιtation des traitιs d'aprθs la Convention de Vienne
sur le droit des traitιs", Recueil des cours de l'Acadιmie de droit
international de La Have, Vol. 151 (1976), p. 64.
---------------------------------------------------------------------------------------------------------------------
(iii) Moreover, Hungary espouses this very classical approach by stating:
"the 1977 Treaty must in the first place be interpreted in the light of the
international law prevailing at the time of its conclusion"
(Counter-Memorial of Hungary, para. 6.28; emphasis added).
(c) Primacy of the Principle of the "Fixed Reference" (Renvoi Fixe) over the
Principle of the "Mobile Reference" (Renvoi Mobile)
8. Hence, the essential basis for the interpretation of a treaty remains the
"fixed reference " to contemporary international law at the time of its
conclusion. The "mobile reference" to the law which will subsequently have
developed can be recommended only in exceptional cases of the sort we shall
be looking at.
B. "Definition" of a Concept Not To Be Confused with the "Law" Applicable to
That Concept
9. In the Namibia case, the Court had to interpret a very special
situation. Among the obligations of the Mandatory Power, the treaty
instituting a "C" Mandate over South West Africa referred to that of a
"sacred trust". It was then for the Court to interpret that phrase. It could
only do so by observing the reality, which shows that this notion of a
"sacred trust", fashioned in 1920 in the era of colonization, was not
comparable to the idea people had of it half a century later in the period
of successive decolonizations. The Court thus considered that the matters to
be inter-preted, such as the "sacred trust", "were not static, but were by
definition evolutionary" (I.C.J. Reports 1971, p. 31). This being so, the
method of the mobile reference, in other words the reference to new
contemporary law, was wholly suitable for an interpretation seeking to avoid
archaic elements, was in tune with modern times and was useful as regards
the action of the Applicant, which in this case was the Security Council.
10. But the Court patently knew that it was pursuing this approach because
the situation was special. Nowhere did it state that its method of the
mobile reference was subsequently to become mandatory and extend to all
cases of interpretation. The definition of the "sacred trust" is
evo-lutionary. It is the law corresponding to the period when this concept
is [p123] being interpreted which must be applied to the concept. On the
other hand, the environment remains the environment. It is water, air,
earth, vegetation, etc. As a basic definition, the environment is not
evolutionary. Its components remain the same. On the other hand, its
"status" may change, deteriorate or improve, but this is different from a
definition by its components.
11. I would add that what evolved in the case of the Mandate was the object
of the treaty which created it. This object was the sacred trust. Yet this
object has not evolved at all in the Gabcikovo-Nagymaros case. The point
here was to consent to a joint investment and to build a number of
structures. This object, or objective, remains, even if the actual means of
achieving it may evolve or become more streamlined.
C. "Interpretation" of a Treaty Not To Be Confused with Its "Revision"
12. An interpretation of a treaty which would amount to substituting a
completely different law to the one governing it at the time of its
conclusion would be a distorted revision. The "interpretation" is not the
same as the "substitution ", for a negotiated and approved text, of a
completely different text, which has neither been negotiated nor agreed.
Although there is no need to abandon the "evolutionary interpretation",
which may be useful, not to say necessary in very limited situations, it
must be said that it cannot automatically be applied to any case.
13. In general, it is noteworthy that the classical rules of interpretation
do not require a treaty to be interpreted in all circumstances in the
context of the entire legal system prevailing at the time of the
interpretation, in other words, in the present case, that the 1977 Treaty
should be inter-preted "in the context" and in the light of the new
contemporary law of the environment or of international watercourses.
Indeed, it is quite the opposite that these rules of interpretation
prescribe, seeking as they do to recommend an interpretation consonant with
the intentions of the parties at the time the Treaty was concluded.
14. In general, in a treaty, a State incurs specific obligations contained
in a body of law as it existed on the conclusion of the treaty and in no
wise incurs evolutionary and indeterminate duties. A State cannot incur
unknown obligations whether for the future or even the present.
15. In this case, the new law of the environment or of international
watercourses could have been incorporated into the 1977 Treaty with the
consent of the parties and by means of the "procedural mechanisms " laid
down in the Treaty. That would be a "revision " of the Treaty accepted
within the limits of that Treaty. Similarly, the new law might have played a
role in the context of a "reinterpretation" of the Treaty but provided it
did so with the consent of the other party. [p124]
D. Cautiously Take Subsequent Law into Account as an Element of
Interpretation or Modification in Very Special Situations
16. It is true that one cannot be excessively rigid without failing to allow
for the movement of life. The new law might, in principle, be relevant in
two ways: as an element of the interpretation of the content of the 1977
Treaty and as an element of the modification of that content.
17. The former case, that of interpretation, is the simpler of the two. In
general, there is certainly good reason to protect the autonomy of the will.
But in our case, Articles 15, 19, and 20 of the 1977 Treaty are fortunately
drafted in extremely vague terms (in them, reference is made to "protection
" without any further qualification of water, nature or fishing). In the
absence of any other specification, respecting the autonomy of the will
implies precisely that provisions of this kind are interpreted in an
evolutionary manner, in other words, taking account of the criteria adopted
by the general law prevailing in each period considered. If this is the
case, should it not be acknowledged that these criteria have evolved
appreciably over the past 20 years? The new law, both the law of the
environment and the law of international watercourses, may therefore
advisedly be applied on the basis of Articles 15, 19 and 20 of the 1977
Treaty, for an "evolutionary interpretation" of the Treaty.
18. This is the first major case brought before the Court in which there is
such a sensitive ecological background that it has moved to centre stage,
threatening to divert attention from treaty law. International public
opinion would not have understood had the Court disregarded the new law,
whose application was called for by Hungary. Fortunately the Court has been
able to graft the new law onto the stock of Articles 15, 19 and 20 of the
1977 Treaty. And Slovakia, it must be said, was not opposed to taking this
law into consideration. However in applying the so-called principle of the
evolutionary interpretation of a treaty in the present case, the Court
should have clarified the issue more and should have recalled that the
general rule governing the interpretation of a treaty remains that set out
in Article 31 of the 1969 Vienna Convention.
19. Concluding this consideration of the issue of the applicable law, let me
say that considerable progress has been made over the last 20 or 30 years in
mankind's knowledge of the environment. What has actually progressed
however, all that could progress, is on the one hand the scientific
explanation of ecological damage and on the other the technical means for
limiting or eliminating such damage. The phenomenon of damage, as such, has
existed since the dawn of time, each time that mankind has opposed the
forces of nature. This means that damage was a known factor, before and
after the 1977 Treaty, and this was the meaning behind my question to the
Parties.
***[p125]
20. It seems to me that the issue of the nature of the 1977 Treaty and its
related instruments warranted more attention from the majority of the Court.
Actually, it is a crucial question. The nature of the Treaty largely
conditions the succession of Slovakia to this instrument, which constitutes
the substance of the applicable law, and which remains in force despite
intersecting violations by both Parties.
21. The 1977 Treaty (including its related instruments) has the threefold
characteristic
of being a territorial treaty;
of being a treaty to which Slovakia validly succeeded; and
of being a treaty which is still in force today.
22. The Treaty in question is a territorial treaty:
because it "marries" the territories of two States; it creates
obligations between the States relating either to the use of a part of the
territory of each of the two States or to restrictions as to its use. It
creates a sort of territorial "dependency " of one State in relation to the
other; it institutes a "territorial link" between them in respecting the
established frontiers. The operation of the Gabcikovo hydroelectric power
plant on Slovak territory is conditioned by the Duna-kiliti dam on Hungarian
territory. And the operation of that plant in "peak power" mode is
subordinate to the creation of the dam at Nagymaros on Hungarian territory;
because it creates a specific regional area between two neighbouring
countries; it concerns the joint construction and use of major structures,
all constructed on the Danube, itself a frontier river, or around and for
the river. Such regulation by treaty of a watercourse in a frontier zone
affects navigation on this stretch of the river as well as the use and
apportionment of the frontier waters and makes the two States partners in
the benefits of an industrial activity producing energy. All this creates a
specific regional area and frontier regime, undeniably giving the Treaty
instituting this space and this regime the character of a "territorial
treaty";
lastly because it has a dual function, both confirming and slightly
modifying the frontier between the two States; the frontier had already been
determined by other, previous instruments. However the 1977 Treaty concerns
the regulation of a river which determines the State frontier between the
two parties as the median line of its main channel. Moreover, the Treaty
nonetheless contains a provision on the demarcation of the State boundary
line, making it a boundary Treaty confirming the frontier. In addition it
provides for a minor modification of the boundary line once the
construction of the system of dams is completed. For this purpose it
announces a limited exchange of territory on the basis of a separate
treaty. Lastly, the 1977 Treaty thus affects not only the boundary line, but
even its nature, since the frontier is no longer constituted de facto by
the actual thalweg.[p126]
23. The Treaty is an instrument to which undeniably Slovakia succeeded:
because it is a territorial treaty, the principle in such cases being
automatic succession;
because the type of succession concerned here (the dissolution of a State)
is governed by the rule of continuity of succession;
because Slovakia itself, prior to the dissolution of Czechoslovakia,
participated in the conclusion of the Treaty; and lastly
because, on its emergence, Slovakia declared that it was bound by all
treaties concluded by the predecessor State, without ever excluding the 1977
Treaty.
24. The Special Agreement concluded by the Parties in 1993 cannot have been
easy to draw up. The text appears to have been inspired by the desire to
reconcile elements which remain contradictory. One of the Parties Hungary
acknowledges that the 1977 Treaty applies to itself, Hungary, until its
termination on 19 May 1992, but does not apply to the other Party. According
to Hungary, that Party Slovakia did not inherit the formal instrument
itself, but its material content made up of "the rights and obligations "
which Slovakia allegedly derived from this
according to Hungary now defunct Treaty.
25. With this convoluted structure as backdrop, the Court apparently has to
judge not two States on the basis of one and the same treaty but to judge
(i) on the basis of one and the same treaty, one party to the dispute,
Hungary, and a State now dissolved, Czechoslovakia, which is not a party to
the dispute, and
(ii) at the same time, on another basis which is not directly the Treaty,
two States, Hungary and Slovakia, the latter of which is not recognized to
have the status of successor State to the Treaty concerned.
26. Slovakia did indeed succeed to the 1977 Treaty, which is still in force
today between the two Parties in contention, despite the intersecting
violations of it by the Parties. I concur with the reasoning and
conclusions of the majority of the Court in adjudging and declaring on the
one hand that both Hungary and Slovakia violated the Treaty, and on the
other that the Treaty remains in force. However, I shall shortly go a little
further than the majority of the Court on this question of the infringements
of the Treaty, which I hold to be intersecting violations, resulting in
effectivites which must be reconciled with the survival of the Treaty.
*
***
27. As for the breaches of the Treaty, I entirely share the views of the
majority of the Court in declaring that Hungary was manifestly in breach of
its contractual obligations in suspending then abandoning work and [p127]
later in declaring the Treaty terminated. None of Hungary's attempted
justifications, relating either to the suspension then the abandonment of
work or to the termination of the Treaty, convince me. I have nothing to add
to the analysis of the majority of the Court regarding breaches by Hungary,
save that the Hungarian act of "termination" was directed against a treaty
creating an objective frontier regime and regulating a territorial space;
that it concerned the shared resources of a river, and that it caused damage
which was all the greater in that it threatened to leave unfinished works
and structures which by their very nature were difficult to redeploy.
28. As for the breaches of the Treaty by (Czecho)Slovakia, I regret to
dissent from the majority of the Court. We all recognize that (Czecho)
Slovakia breached the 1977 Treaty, but my view differs as to the extent and
scope of the (Czecho)Slovak breach. The salient question is how to judge the
substitute solution, "Variant C", a solution chosen and applied by
Czechoslovakia. According to the majority of the Court,
"Czechoslovakia was entitled to proceed, in November 1991, to Variant C in
so far as it then confined itself to undertaking works which did not
predetermine the final decision to be taken by it. On the other hand,
Czechoslovakia was not entitled to put that Variant into operation from
October 1992." (Para. 88.)
This presentation by the Court then became the subject-matter of the
operative part, subparagraphs 1 B and 1 C. I take a different view.
29. Slovakia has no hesitation in acknowledging that Variant C differs in
its physical characteristics from the structure which could have been
obtained under the original Project. Variant C in fact created an
autonomous system, no longer dependent on Hungary in any way. The idea of a
joint project recedes, with legal consequences for the mode of operation of
the works, for which Slovakia now bears sole responsibility. Slovakia has,
unilaterally, appropriated a joint investment and waters of the Danube, a
shared resource, over a stretch of the river 40 or so kilometres long. The
Parties' joint operation of research and profit-sharing has been abandoned.
30. The theory of "approximate application " or "close approximation "
relied on by Slovakia in order to justify the construction and
commissioning of Variant C is unconvincing. There is no such theory in
international law. The "precedents" advanced in favour of this theory are
worth-less. At least because of its dangers, this theory deserved
wholehearted censure, which 1 find lacking in the Judgment.
31. Were this theory to be accepted, it would be to the detriment of legal
certainty in relations between States and in particular of the certainty of
treaties and of the integrity of the obligations properly entered into. The
consolidation of this theory would virtually signal the end of the cardinal
principle pacta sunt servanda, since a State which undertakes [p128] a
specific obligation is left free to fulfil another, which it would be quite
cunning to present as being very close to the first obligation. The State
would only have to observe that its "approximate application" was allowed
since, according to it, the conduct of the other party placed it in the
impossibility of performing its obligations under the treaty and since it
had no other remedy. All breaches of the obligations of the State would thus
run the risk of being presented as an "approximate application ".
The danger is all the greater in that this theory provides no reliable
criterion for measuring the tolerable degree of "proximity" or
"approximation". The "distance" or the "difference" which a State would
be authorized to take in relation to the purpose of a treaty when performing
the obligation remains dangerously undefined and is still left to the
subjective evaluation of the State.
But this is not all.
32. What the theory of "approximate application" lacks in order to be a
valid "reinterpretation" of the treaty is quite obviously the basic
condition of the consent of the other State. Indeed Slovakia is not wrong
in stating that deviations from treaty norms in the application of the
Treaty may be considered a "reinterpretation " of that Treaty. Yet this
species of "mutation" or "novation" of the obligation in its performance is
subject to the existence of an essential condition which has not been
fulfilled in the present case at all. The "approximate application" may only
be recognized as valid and may only constitute a "reinterpretation" if the
other party to the Treaty has given its consent. The weakness of Slovakia's
case is only too apparent.
Moreover Hungary's position is a most distinctive one since not only did it
not give its consent to the "reinterpretation " of the Treaty, it also
considers that there was neither an original interpretation nor a
re-interpretation of the Treaty since for Hungary it ceased to exist even
before the advent of Slovakia.
33. I now come to quite another aspect concerning Variant C, one which fully
warrants my adding a nuance to what I have already said. It is no secret
that when States undertake negotiations, they often envisage, in a spirit of
caution and realism, other solutions should the negotiations fail. A prudent
State always approaches the negotiating table with one or more substitute
solutions up its sleeve in case of failure. It may therefore be said that
envisaging a unilateral substitute solution must necessarily be part of the
customary strategy and tactics of negotiation, sometimes in order to put
more pressure on the negotiating partner. "Substitute solu-tions" are
therefore an elementary precaution in any negotiation.
34. The contrary can only be asserted if the State has shown bad faith and
if it has been demonstrated beyond doubt that it only pretended to
negotiate, whereas its firm intention was to sabotage the seeming
negotiations in order to impose at all costs a unilateral solution already
decided on.
This then raises the problem as to whether Czechoslovakia respected [p129]
the principle of good faith. I shall not venture to examine this question
since, in my view, both Czechoslovakia and Hungary showed good faith, whilst
each presenting the image of their own anxiety to the other. On either side,
good faith was eroded by the "drip" effect of anxiety and distrust
vis-a-vis the other Party.
35. In any event, in determining the legal validity of Variant C, the
majority of the Court made a distinction between the actual construction of
this "substitute solution", held to be lawful, and the actual diversion of
the river, the final phase of Variant C, held to be unlawful. The various
operations which make up Variant C are thus dissected as it were into so
many slices of legal salami.
I cannot agree with this approach. In my opinion the construction of Variant
C falls into one of the categories of breaches termed "continuing",
"composite" or "complex", depending on their characteristics, each phase or
each element of which is unlawful.
36. The majority of the Court considers that only the diversion of the river
genuinely breaches (Czecho)Slovakia's treaty obligations as well as
customary international law, which prohibits the unilateral appropriation of
a shared resource. Each of the other phases prior to the diversion is
allegedly lawful, on the ground that a sovereign State is entitled to erect
any edifice it wishes on its territory, providing it does not prejudice the
rights and interests of another State.
37. However, it is precisely on this last count that the reasoning is
untenable. For the reasoning to be unassailable, it has to be shown that no
phase of the construction of Variant C, apart from the diversion of the
river, prejudiced Hungary's rights and interests. This has not been shown
and appears to have been considered self-evident by the Court, after the
fashion of a postulate.
38. It is true that a State is sovereign on its own territory, on which it
may erect any construction it wishes. However, once that State is bound by a
commitment, concerning the regulation of a river basin for instance, it may
no longer construct as and when it wishes a structure relating to this river
basin, or which has a link with this basin, or an effect on it. Within the
scope of the Treaty, this leaves room for nothing else but the application
of this instrument (excepting of course all the operations regarding the
administration of this territory). In other words, in its con-duct the
State, sovereign of course but bound by a given treaty obligation, must
necessarily act with such caution and discernment that it need not fear
potentially compromising the performance of its treaty obligation, at any
time and in relation to any of its operations. In the field henceforth
governed by a treaty, the contracting State can no longer carry out any
operation it wishes, which would be lawful only if it were totally neutral
in relation to the general structure of such a treaty.
39. At this point I must recall what I said above on the subject of the
territorial nature of 1977 Treaty, which lays various mutual obligations [p130] on the two contracting States relating either to the use of a part of
the territory of each of the two States, or to restrictions on its use. The
Treaty creates a "territorial dependency" of one State in relation to the
other. This being so how can it be asserted that the State is free to act as
it wishes?
40. It is important to ascertain exactly what Variant C is. Paragraph 66 of
the Judgment gives a detailed description of it and the Working Group of
Independent Experts presents it in the following terms:
"Variant C consists of a complex of structures, located in Czechoslovakia .
. . The structures include . . .:
(2) By-pass weir controlling the flow into the river Danube.
(3) Dam closing the Danubian river bed.
(4) Floodplain weir (weir in the inundation).
(5) Intake structure for the Mosoni Danube.
(6) Intake structure in the power canal.
(7) Earth barrages/dykes connecting structures.
(8) Ship lock for smaller ships . . .
(9) Spillway weir.
(10) Hydropower station." (Memorial of Slovakia, Vol. II, Ann. 12.)
This description of Variant C shows to what extent the planned structures
are numerous, "heavy ", and not at all neutral, and interfere with the
initial Project, or to be more specific change its nature.
41. In these slices of "legal salami" which supposedly constitute Variant
C, the first phase itself cannot be considered as being immaterial to the
1977 Treaty. (Czecho)Slovakia's first act, the construction of the Cunovo
dam, occurred in a river basin which was indeed on Czechoslovak territory
but this had immediate repercussions on the apportionment of water belonging
to both States, since the river was enlarged at that point into a large
reservoir two-thirds the size of the Dunakiliti reservoir. This first
operation was not the kind of neutral measure that might freely be taken by
a State which was moreover bound by a commitment relating to a certain way
of regulating the river. On the contrary, it creates a situation having a
direct, immediate bearing on the provisions of the 1977 Treaty, which
provisions it substantially alters. Nowhere does the Treaty in question
formally forbid Czechoslovakia to erect a dam at Cunovo, on its own
territory. However, in deciding that the dam was to be located at
Dunakiliti, the Treaty undeniably imposes on Czechoslovakia an "obligation
to abstain" from erecting this dam at Cunovo. In short, even the first
operation at Cunovo could not be left to Czechoslovakia's sole, sovereign
initiative. Did not the first "diversion" of the waters of the Danube in
fact take place at Cunovo when the river, dammed at that point, broadened
into a vast "reservoir" so to speak to the detriment of Hungary?
42. On a totally different plane, I cannot conceive how an action by [p131]
the State, forming a link in a chain, should not take on an unlawful hue
when completed by a final link, itself acknowledged to be unlawful, since,
once the Danube had been diverted, this unlawful act was "retroactively" to
serve as a "chemical indicator" casting an unlawful hue on all the
operations composing Variant C. However, in persisting in setting the
construction work, said to be definitively lawful, against the diversion of
the river, apparently not unlawful, the majority of the Court does not at
all recognize the unlawfulness of Variant C as a whole.
43. That, for the majority of the Court, is a way of denying the existence
of the "continuing", "composite" or "complex wrong". It seems to me that all
the effort expended in the literature and in the case-law are compromised by
this stand, as is the attempt at codification by the Inter-national Law
Commission. The unlawful nature of the "continuing wrong" is indeed
determined once the last piece of the jigsaw is in place. Yet in the
literature and in the case-law the declaration of the unlawfulness of the
final link results, in most categories of wrongs, in the unlawfulness of
the entire chain. It therefore seems wrong to me to set the allegedly lawful
construction of Variant C against its allegedly unlawful final
commissioning.
44. The Judgment of the Court refers to the proceedings of the
International Law Commission on State Responsibility. However, one of the
paragraphs in the commentaries of the Commission to which the Court
specially refers reads:
"unlike wrongful acts of national law, the internationally wrongful act of a
State is quite often and probably in most cases the result of a
concatenation of a number of individual actions or omissions which, however
legally distinct in terms of municipal law, constitutes one compact whole
so to speak from the point of view of international law" (Yearbook of the
International Law Commission, 1993, Vol. II, Part 2, p. 57, para. 14;
emphasis added).
45. Moreover it is not so much Article 41 of the Draft Articles of the
International Law Commission on State Responsibility, cited in the Judgment
of the Court, which is relevant here, but rather Article 25. Its title
{"moment and duration of the breach of an international obligation by an act
of the State extending in time") is in itself significant for the present
case. It clearly states:
"1. The breach of an international obligation by an act of the State having
a continuing character occurs at the moment when that act begins . . .
2. The breach of an international obligation by an act of a State, composed
of a series of actions or omissions in respect of separate cases, occurs at
the moment when that action or omission of the series is accomplished which
establishes the existence of the composite act . . .[p132]
3. The breach of an international obligation by a complex act of the State
consisting of a succession of actions or omissions . . . occurs at the
moment when the last constituent element of that complex act is
accomplished . . ." (Emphasis added.)
In addition, however, and in all cases, the International Law Commission
stated, with regard to each of these scenarios (continuing, composite or
complex act), that "Nevertheless, the time of commission of the breach
extends over the entire period." In other words, however Variant C is
classified among the above three types of wrong, the unlawfulness of the
final phase, the diversion of the river, extends to all the operations which
preceded it, even supposing it not to be a continuing offence unlawful from
the outset.
46. Indeed, the unlawful nature of Variant C, from the commencement of its
construction to the diversion of the river, can only be indivisible, in
view of the very nature of this "substitute solution". As the Judgment of
the Court puts it so appositely, "the main structures of the System of Locks
. . . will take the form of a co-ordinated single unit" (para. 144) or a
"single and indivisible operational system of works" (para. 77). Similarly,
Variant C, which replaced this system, is not made up of a series of
unrelated operations. They depend on each other, combining to produce the
final result. The "integrated" nature of these operations results from the
fact that none of them can stand alone, nor have any meaning in itself. None
of them is neutral and is meaningful only when related to the final result.
What would be the purpose of the construction of the darn closing the bed
of the Danube unless to divert the river? For a sovereign State, which is
entitled to construct whatever it wants on its own territory, building such
a dam, in isolation and on its own, would be pointless and without interest
for that State, which would not embark upon such a venture at all. The point
and interest become evident only when the operation in question is related
to the final diversion of the river. The very nature of the bypass canal
built in the context of Variant C was quite obviously to divert the waters
of the main channel to the Gabcikovo power plant. Such a construction could
be neither innocent nor neutral; it bore the stamp of the end purpose of
Variant C, which was the diversion of the waters of the river. In short, it
is not possible to separate the construction on the one hand and the
diversion on the other.
47. It is true that any internationally unlawful act initially begins with
"preparations". I agree with the majority of the Court in considering that
such preparations stricto sensu are not unlawful. Even the extremely
advanced preparation of a "substitute solution" as leverage on negotiations
with the partner is not in itself in any way unlawful. However, once the
order to construct was given and once construction began, in November 1991,
we leave the field of preparations for that of construction. At that time,
November 1991, Czechoslovakia was fully aware that Hungary [p133] had no
intention of performing the 1977 Treaty, and had then taken the decision to
divert the waters of the river. The chain of operations designed to achieve
this aim was unbroken, with no missing links, from the commencement of
construction to the commissioning of Variant C by the actual diversion of
the waters in October 1992. Nevertheless the majority of the Court held that
the work concerned might "have been abandoned [by Czechoslovakia] if an
agreement had been reached between the parties" (para. 79). I do not think
one can engage in speculation of this sort with impunity. When construction
began in November 1991 and throughout this phase of the works, it was
clearly apparent, particularly from the diplomatic exchanges between the
Parties, that each Party had adopted an entrenched position. That being so,
the idea mooted by the Court of an abandonment of the works could be only
hypothetical and unrealistic.
48. Thus paragraph 1 of the operative part of the Judgment is drafted in
such a way that the Court states on the one hand that Czechoslovakia acted
legally in proceeding to Variant C in November 1991 (subpara. A), but on the
other that it was not entitled to put it into operation in October 1992
(subpara. B). I am somewhat bemused, 1 must admit, by this twofold
affirmation. It is as if I were allowed to buy fruit from the market, but
prevented from eating it. It is as if the housewife had cooked a meal but
were forbidden to eat it. It is as if a State were free to purchase weapons
or have them manufactured, but were not permitted to use them if attacked.
Paragraph 1 of the operative part thus reflects, in a nutshell, an analysis
which ends in stalemate.
In the final analysis, the decision of the Court concerning Variant C is, in
my view, neither correct in legal terms, nor good in practical terms, nor
actually useful. It has no value, neither in law nor in fact, nor for future
bipartite negotiations.
49. So with the construction of Variant C, international waters belonging
to two States and flowing in the bed of a frontier river suddenly, over a
distance of 40 kilometres from Cunovo to Sap, become exclusively national,
Slovak waters. A bilateral project, under construction on the territory of
both States as a result of a joint investment, suddenly becomes a
unilateral, purely national project. Whose fault is this? Certainly and
primarily the fault of Hungary. For the time being however this aspect does
not concern me. What does deserve consideration here is a substantial
physical reality: over a distance of 40 kilometres, waters hitherto shared
become purely national waters and a bilateral project suddenly undergoes
profound modifications, fundamentally altering it into a purely national
project.
50. It is clear that (Czecho)Slovakia, in so doing, applied something quite
different from the 1977 Treaty. Either Variant C constitutes the application
of the Treaty or it does not. In my view there can be no intermediate
situation. There is no place, in law, for an "approximate" application of
the Treaty. There are only two categories of conduct in inter-[p134]national law: lawful and unlawful. It does not recognize any
intermediate situation. Such a situation may exist but is and will be
nothing more than a fact. In relation to the Treaty, this fact may be
considered only as a non-application of the Treaty, being unlawful in
nature.
51. I have therefore reached the conclusion that Variant C as a whole is
unlawful. Can it however be regarded as a countermeasure? I do not think so,
and I concur with the majority of the Court on this point. I am however
tempted to qualify this. It is impossible to regard (Czechoslovakia's
conduct with utter certainty as no more than a reaction to Hungary's
unlawful acts. Another perhaps slightly more realistic view might discern in
Czechoslovakia's conduct both a premeditation and a response, creating a
situation which is more complex than a countermeasure. A premeditation to
begin with. Without accepting the Hungarian view that since 1920
Czechoslovakia had always dreamt of constructing all the works within Slovak
territory, I note that Czechoslovakia drew up different variants early in
1989, including Variant C, as a "substitute solution". Then a response.
There is no doubt that Slovakia is well served by the chronology of events.
The suspension of work by Hungary on 13 May 1989 followed by the definitive
abandonment of work and finally by its decision to terminate the Treaty on
19 May 1992 are the mechanics of the final implementation of Variant C on 23
October 1992 as a countermeasure to the Hungarian conduct.
52. In any event, and here I concur with the majority of the Court, Variant
C is not a countermeasure capable of excusing its unlawfulness. Nor indeed
is it proportionate, since from the outset it deprives Hungary of the waters
of the Danube as a shared resource and also of any control over a joint
investment laid down in the 1977 Treaty. Moreover Variant C is neither
provisional nor deterrent, as a countermeasure should be. It constitutes a
definitive, irreversible breach of the 1977 Treaty.
***
53. Both parties, Hungary just as much as Slovakia, have therefore breached
the 1977 Treaty. The situation created by the parties is characterized by
intersecting violations countering each other. However it is not easy to
pinpoint the links between cause and effect in each case with certainty.
The acts and conduct of the parties sometimes intercut. The chronology of
events appears to answer the question as to which of the two parties
triggered the cycle of these intersecting violations. Naturally this
chronology must be taken into account; however it must be borne in mind that
it is just like the tip of an iceberg, something only to be relied upon with
caution. Alas, deep mutual distrust has characterized relations between the
parties for many years. [p135]
In holding the wrongs committed by both Parties to be "intersecting
violations" the Court could have seized this opportunity to describe a
reality more complex than it appears, one within which the links between
cause and effect intercut. In so doing, it might perhaps have been justified
in suggesting that the Parties renegotiate their Treaty on the basis of a
"zero option" under which each Party waived its right to compensation from
the other. The Parties might then have redefined their treaty relations
more readily within the framework of the renewed 1977 Treaty.
***
54. On the ground, these intersecting violations gave rise to a reality
which the majority of the Court did not deem it appropriate to
characterize. For my part, it seems necessary and important to note that
these intersecting violations created two effectivites which will continue
to mark the landscape of the region in question.
55. The jurist is not fond of effectivites. They violate his taste for the
legal ordering of things. On the other hand, he is aware that the realities
of life are complex and that a substantial portion of these realities
inevitably escapes the rule of law. So he is sometimes realistic enough to
take account of some of these situations when they persist and to regard
these effectivites as an "action of the fact" against the legal title. This
attitude is not only dictated by realism but is nourished by the desire to
reincorporate these effectivites into the legal processes.
56. (Czecho)Slovakia implemented Variant C. The construction of the
Gabcikovo system laid down in the Treaty was thus effected by the
substitution of Cunovo for Dunakiliti, with its technical and physical
consequences. This Variant C is illegal but it exists. Slovakia places all
the greater reliance on its effectivite because it "approximates" to the
law. It was certainly keen to assert its readiness to destroy this
effectivite. But it seems clear that any questioning of Variant C, by
destruction or in any other way, would be contrary to sound economics and
ecology, and would ultimately be absurd and unacceptable to Slovakia. This
is the inescapable reality the Court has no option but to deal with in the
effort to reconcile it with the law which it is its task to state.
57. The Slovak effectivite has a twofold singularity.
Firstly, until recently it was what Charles De Visscher calls an
"effectivite in action"FN2and became consolidated when the case was "sub
judice". Gabcikovo was to be constructed in two phases. The former phase was
to be completed on 23 October 1992, the date of the diversion of the river.
The second phase is now almost complete; it was constructed [p136] while
the case was before the Court. Today it is an almost complete structural
effectivite.
---------------------------------------------------------------------------------------------------------------------- FN2
Charles De Visscher, Thιories et rιalitιs en droit international public, 4th
ed., 1970, p. 319.
---------------------------------------------------------------------------------------------------------------------
The second singularity of the Slovak effectivite is that it draws its
strength from the facts hut also, in part, from the law. This is a striking
characteristic of this effectivite, which is constructed, like any
effectivite, against the law (in this case treaty law), but which is
nevertheless reinforced by a partial application of the Treaty, enabling
Slovakia to contend that its Variant C was nothing more than an "approximate
application" of the Treaty.
In fact:
(i) the dam and hydroelectric power plant at Gabcikovo, now constructed,
were provided for in the Treaty;
(ii) the diversion of the Danube was provided for in the Treaty (the major
difference being that the river was closed at Cunovo instead of Dunakiliti);
and
(iii) the Danube still flows along its original bed (with the twofold
difference that it has been closed at Cunovo and above all that Slovakia
releases an insufficient volume of water daily into the Danube, a situation
which Slovakia considers might be improved).
58. As for Hungary, it has abandoned work on all fronts and has decided not
to build the Nagymaros dam. The nature of the Hungarian effectivites is
rather curious.
Firstly, an effectivite may express a certain order established by the act.
This is not the case here. The Hungarian effectivites express, quite the
contrary, a kind of "disorder" arising from the abandonment of the works.
They are effectivites not "in action" but in a state of prolonged
"malformation".
As for the Nagymaros site, it presents a picture of a kind of "negative"
effectivite through the abandonment of the construction of the dam. This
means that the "negative" effectivite of Nagymaros has created a definitive
situation, for Hungary's will appears irrevocable.
The other Hungarian effectivites have generated a state of affairs
unsatisfactory for all. This situation is waiting to be taken in hand or
"recycled" by another law, whether treaty law (a renegotiated 1977 Treaty),
or domestic law (a Hungarian decision to destroy or redeploy the uncompleted
shells).
59. Both the Slovak and Hungarian effectivites share the characteristic of
enjoying a significant degree of mutual recognition by the Parties. Despite
the difficulties there are in grasping all the nuances of the Hungarian
position from one written pleading to another and from one oral argument to
another, I think that Hungary is not calling for the dismantling of Variant
C. As for Slovakia, it seems on the one hand to be seeking to adjust to the
fact that the Nagyrnaros dam does not exist by, among other things,
modifying the way Gabcikovo operates and on the other hand avoiding calling
for the completion of the "large reservoir" at Dunakiliti, which is very
costly and heavily polluting, but above all duplicates the Cunovo reservoir.
[p137]
These were valuable pointers for the Court, "signals" one might say in the
attempt to find appropriate solutions, bearing in mind the law and the
facts.
***
60. What is the law ? What are the facts ? First, the facts. They are
constituted by the reality on the ground, which I have just analysed as
effectivites. Second, the law. The law is constituted by the 1977 Treaty
and its related instruments, which the intersecting violations of both
parties have been powerless to terminate. Consequently, there is no point in
concealing the extremely delicate nature of the task conferred upon the
Court in this case where the facts clash head on with the law, which ought,
however, to have the final say. The situation may be analysed as follows:
on the one hand the 1977 Treaty has largely been stripped of its material
content, but remains a formal instrument, a receptacle or shell ready to
accommodate new commitments by the Parties; on the other hand, in parallel,
effectivites have come into being which are mutually recognized by the
Parties. So it was for the Court to declare that both Parties were under an
obligation to negotiate in good faith a new content to their Treaty, taking
account of what remained of the Treaty and also the effectivites on the
ground. However it was important to emphasize above all that in taking these
effectivites into account the Court clearly had no intention whatsoever of
legitimizing the unlawful facts established. All it had to do, in a spirit
of legal realism, was to take note (together with the Parties themselves to
some extent) of the effects resulting from a wholly singular succession of
intersecting violations, each of which remained reprehensible as such.
61. In order to do so, we must first examine the consideration given to the
maintenance in force of the 1977 Treaty and its significance, then the
consideration of the effectivites and its significance, before attempting to
make these two elements "co-exist" within the framework of a renewed treaty.
62. The maintenance in force of the Treaty does not mean the enforced
performance of the obligations it imposed on Hungary, obligations which to
date had not been fulfilled. It is neither necessary nor justified to infer
all the logical consequences from the maintenance in force of the Treaty.
There is no question of obliging Hungary to construct the Nagymaros dam, to
complete the works at Dunakiliti, to put the diversion dam at Dunakiliti
into operation and to flood the Cunovo installations, nor to complete,
upstream of Gabcikovo, that part of the work it was to carry out under the
Treaty, provided Slovakia had not already done so.
At the same time, however, any idea of legitimizing the abandonment by
Hungary of its treaty obligations must be totally excluded. Whilst accepting
the effectivites as inescapable acts, their nature as internationally
unlawful acts must nonetheless be noted, acts for which Hungary [p138] must
answer by assuming its responsibility. The same holds true for the
consideration of the Slovak effectivites, whose unlawful nature has also not
been eradicated.
63. The survival of the Treaty in the face of all the violations shows well
enough that there is no question of legalizing the infringements of the
principle pacta sunt servanda. Although it is prudently realistic to take
account of the effectivites and not to "run headlong into" an inescapable
reality, it seems even more essential, especially for a world judicial organ
concerned to ensure that international law is respected, to show urbi et
orbi that treaties are not "scraps of paper" and that they cannot be
destroyed by violating them. Save by mutual consent, States cannot and may
not rid themselves of their treaty obligations so easily. It is vital to
reinforce the legal certainty of international commitments.
64. The survival of the Treaty also makes it possible to salvage its
Articles 15, 19 and 20, relating respectively to the protection of water
quality, the protection of nature and fishing interests. They are of course
extremely general, unsatisfactory articles. However they concern essential
matters which lie at the root of the current dispute between the two States.
It will therefore be for the two States to settle these vital matters of the
environment, water quality and fishing, by negotiation. In Articles 15, 19
and 20 they will find the basis for that renegotiation.
65. Lastly, the survival of the Treaty provides a context, and even more a
specific framework, for the wishes of the two States in negotiation. It is
not only Articles 15, 19 and 20 which the survival of the Treaty will
salvage. More than that, the 1977 Treaty will make it possible to conserve
the general philosophy and the major principles which have inspired this
association between two States with a view to a joint investment, from which
they could expect mutual benefits. The Treaty will serve as a framework, and
the wishes of the two States will thus be channelled in order to avoid
undesirable excesses, or, conversely, any reluctance, by either Party. The
Treaty which survives already contains a number of accepted guidelines and
useful principles to point the way for future negotiation. In particular,
apart from Articles 15, 19 and 20, the following points need to be further
developed and adjusted, but in principle are already accepted. These are:
(a) "the development of water resources, energy, transport, agriculture and
other sectors of the national economy of the Contracting Parties" (Preamble
to the Treaty);
(b) "improved old bed of the Danube ..." (Art. 1, para. 2 (e));
(c) "deepened and regulated bed of the Danube" (Art. 1 para. 2 (f));
(d) "flood-control works" (Art. 1, para. 3 (a), and Art. 13); [p139]
(e) "deepened and regulated bed of the Danube, in both its branches ..."
(Art. 1, para. 3 (c));
(f) the principles which have presided over the distinction between joint
investment and national investment (Art. 2);
(g) the "responsibility for the costs of the joint investment" (Art. 5),
which will enable the future negotiators to assess the costs and to
calculate how much of these costs each Party has already paid and for how
much it still remains responsible;
(h) the determination of the joint and separate ownership of each State with
respect to each of the structures already built (Article 8 of the Treaty).
The bypass canal constructed by Czechoslovakia alone is regarded as joint
property by Article 8 (b), which is normal in this system of joint
investment and operation, but Hungary, which must legitimately accede to
this joint property, will have to pay its part of the construction of that
canal;
(i) the method for the joint operation of the works (Arts. 9 and 10) and the
principle of participation "in the use and in the benefits of the system . .
. in equal measure" (Art. 9, para. 1);
(j) the withdrawal of water from the Danube and the rules and guarantees
which apply to the Parties;
(k) the protection of water quality (Art. 15, cited above), the maintenance
of the bed of the Danube (Art. 16); the rules for navigation (Art. 18); the
protection of the environment (Arts. 19 and 20, cited above);
(l) the determination of the State boundary line between the two Parties
(Art. 22); and lastly
(m) joint liability and separate liability in the event of damage (Arts. 25
and 26).
So much for the survival of the 1977 Treaty and its significance. Let us now
examine the consideration of the effectivites and then its significance.
66. The significance to be attached to taking account of the effectivites
must be indicated, which is a way of highlighting the conditions placed upon
their ultimate harmonization with the law. In the traditional scenarios, the
State invokes an effectivite against a title, in other words against the law
itself. In this case on the other hand, taking account of the effectivites
is not tantamount to a negation of the title. The title does not disappear;
it merely adapts and does so, moreover, through involving the responsibility
of the authors of these effectivites, who will be liable for all the
necessary compensation. The law, trampled by the effectivites, is thus
"avenged" by the price paid by the Parties in the form of compensation for
the effectivites created. It is on this condition, in particular, that
co-existence will develop between these effectivites which have been "paid
for" and the law which has been "avenged".
67. With this in mind, we shall first see how the Parties could adapt these
effectivites in their negotiations to incorporate them into the new [p140]
Treaty. The starting point to be borne in mind is that these effectivites
are recognized by both Parties.
For its part, Hungary only requests the dismantling of Variant C, which it
knows is unlikely, if the new agreement to be concluded prevents it from
benefiting from this variant.
Slovakia has only requested that Hungary be obliged to build the Nagymaros
dam if the two Parties cannot manage to modify the Treaty by an agreement
taking account of the fact that the dam has not been built. According to its
written pleadings and oral arguments, Slovakia does indeed appear to accept
the autonomous operation of the Gabcikovo hydroelectric plant, in other
words its operation independently of the Nagymaros dam. And instead of the
peak-mode operation of Gabcikovo, which was only possible with a dam at
Nagymaros, it agrees to the run-of-the-river operation of Gabcikovo, thus
appearing to be resigned to this situation, which, moreover, is only too
evident to the observer.
Lastly, Hungary and Slovakia do apparently fully accept the closure at
Cunovo and the abandonment of Dunakiliti respectively.
68. While these effectivites, adapted as they have been or will be to fit
the mould of a new treaty, may have breached and exceeded the existing law,
the law reins them in and governs them again in three ways:
these effectivites do not kill the Treaty, which survives them;
these effectivites do not go unpunished and entail sanctions and
compensation;
and above all, these effectivites will be "recast", or inserted into the
Treaty, whose new content to be negotiated will serve as a legitimizing
text for them.
69. This brings me to the necessity for the Parties to negotiate again and
to do so in good faith. The renegotiation must be seen as a strict
obligation, exactly like the good faith conduct it implies. This obligation
flows not only from the Treaty itself, but also from general international
law as it has developed in the fields of international watercourses and the
environment.
70. In this context of a reconstituted negotiation, the Parties will have to
find, unless they agree otherwise, the appropriate solutions for a number of
questions and, in particular, but not exclusively, the following ones:
the necessity to wipe the slate of the past clean and for each to pay the
price for their wrongful conduct and their effect ivite; the "zero option",
moreover, would not be incompatible with this necessity;
the necessity to reconstitute or remodel the material content of the
Treaty by achieving a "comprehensive balance" between them, in their rights
and obligations;
lastly, the necessity to rectify the operation of certain elements in
order to avoid ecological dangers and harm. [p141]
71. In the search for new "comprehensive balances" in the Treaty, unless
they agree otherwise, the Parties will have to negotiate the conditions for
restoring Hungary to its status as a partner in the use of the water,
restoring its rights over the water downstream of Cunovo as far as Sap
downstream of the confluence between the canal and the original course of
the river, involving that country, with equal responsibilities, in the
operation and management of Variant C, which thus passes from the status of
an effectivite to that of a novation jointly agreed in the context of a
renovated treaty; and lastly enabling Hungary to enjoy, on an equal footing,
the benefits achieved by the implementation of this "provisional solution"
(Variant C) which, in the renewed Treaty, has become a "definitive and
irreversible solution".
Lastly, unless they agree otherwise, the Parties will also have to
negotiate the conditions for restoring Hungary to its status as co-owner of
the works supposed to have been built jointly, given that the Parties will
have to reconsider the matter of co-ownership, taking due account of the
amounts paid by each of them as part of the joint investment, of the
compensation paid and weighing up these and any other elements which each
of them considers relevant.
(Signed) Mohammed BEDJAOUI.
[p142]
SEPARATE OPINION OF JUDGE KOROMA
I have voted in favour of most of the operative part of the Judgment,
principally because I concur with the Court's finding, in response to the
questions submitted to it in the Special Agreement, that Hungary was not
entitled to suspend and subsequently to abandon in 1989 the works on the
Nagymaros Project and on the part of the Gabcikovo Project on the Danube
river for which it was responsible under the 1977 Treaty, that the Treaty
continues to be in force and consequently governs the relationship between
the Parties.
In making such a finding the Court not only reached the right decision in my
view, but reached a decision which is in accordance with the 1977 Treaty,
and is consistent with the jurisprudence of the Court as well as the general
principles of international law. Foremost among these principles is that of
pacta sunt servanda which forms an integral part of international law. Any
finding to the contrary would have been tantamount to denying respect for
obligations arising from treaties, and would also have undermined one of the
fundamental principles and objectives of the United Nations Charter calling
upon States "to establish conditions under which justice and respect for the
obligations arising from treaties . . . can be maintained", and "to achieve
international co-operation in solving problems of an economic, social . . .
character".
When Czechoslovakia (later Slovakia) and Hungary agreed by means of the 1977
Treaty to construct the Gabcikovo-Nagymaros barrage system of locks on the
Bratislava-Budapest sector of the river for the development and broad
utilization of its water resources, particularly for the production of
energy, and for purposes connected with transport, agriculture and other
sectors of the national economy, this could be seen as a practical
realization of such objectives, since the Danube has always played a vital
part in the commercial and economic life of its riparian States, underlined
and reinforced by their interdependence.
Prior to the adoption of the Treaty and the commencement of the Project
itself, both Czechoslovakia and Hungary had recognized that whatever
measures were taken to modify the flow of the river, such as those
contemplated by the Project, they would have environmental effects, some
adverse. Experience had shown that activities carried on upstream tended to
produce effects downstream, thus making international co-operation all the
more essential. With a view to preventing, avoiding and mitigating such
impacts, extensive studies on the environment were undertaken by the
Parties prior to the conclusion of the Treaty. The Treaty itself, in its
Articles 15, 19 and 20, imposed strict obligations regarding [p143] the
protection of the environment which were to be met and complied with by the
contracting parties in the construction and operation of the Project.
When in 1989 Hungary, concerned about the effects of the Project on its
natural environment, suspended and later abandoned works for which it was
responsible under the 1977 Treaty this was tantamount to a violation not
only of the Treaty itself but of the principle of pacta sunt ser-vanda.
Hungary invoked the principle of necessity as a legal justification for its
termination of the Treaty. It stated, inter alia, that the construction of
the Project would have significantly changed that historic part of the
Danube with which the Project was concerned; that as a result of opera-tion
in peak mode and the resulting changes in water level, the flora and fauna
on the banks of the river would have been damaged and water quality
impaired. It was also Hungary's contention that the completion of the
Project would have had a number of other adverse effects, in that the living
conditions for the biota of the banks would have been drastically changed
by peak-mode operation, the soil structure ruined and its yield diminished.
It further stated that the construction might have resulted in the
waterlogging of several thousand hectares of soil and that the groundwater
in the area might have become over-salinized. As far as the drinking water
of Budapest was concerned, Hungary contended that the Project would have
necessitated further dredging; this would have damaged the existing filter
layer allowing pollutants to enter nearby water supplies.
On the other hand, the PHARE Report on the construction of the reservoir at
Cunovo and the effect this would have on the water quality offered a
different view. The Report was commissioned by the European Communities with
the co-operation of, first, the Government of the Czech and Slovak Federal
Republic and, later, the Slovak Republic. It was described as presenting a
reliable integrated modelling system for analysing the environmental impact
of alternative management regimes in the Danubian lowland area and for
predicting changes in water quality as well as conditions in the river, the
reservoir, the soil and agriculture.
As to the effects of the construction of the dam on the ecology of the area,
the Report reached the conclusion that whether the post-dam scenarios
represented an improvement or otherwise would depend on the ecological
objectives in the area, as most fundamental changes in eco-systems depended
on the discharge system and occurred slowly over many years or decades, and,
no matter what effects might have been felt in the ecosystem thus far, they
could not be considered as irreversible.
With regard to water quality, the Report stated that groundwater quality in
many places changed slowly over a number of years. With this in mind,
comprehensive modelling, some of which entailed modelling impacts for
periods of up to 100 years, was undertaken and the conclu-[p144]
sion reached that no problems were predicted in relation to groundwater
quality.
The Court in its Judgment, quite rightly in my view, acknowledges Hungary's
genuine concerns about the effect of the Project on its natural environment.
However, after careful consideration of the conflicting evidence, it
reached the conclusion that it was not necessary to determine which of these
points of view was scientifically better founded in order to answer the
question put to it in the Special Agreement. Hungary had not established to
the satisfaction of the Court that the construction of the Project would
have led to the consequences it alleged. Further, even though such damages
might occur, they did not appear imminent in terms of the law, and could
otherwise have been prevented or redressed. The Court, moreover, stated that
such uncertainties as might have existed and had raised environmental
concerns in Hungary could otherwise have been addressed without having to
resort to unilateral suspension and termination of the Treaty. In effect,
the evidence was not of such a nature as to entitle Hungary to unilaterally
suspend and later terminate the Treaty on grounds of ecological necessity.
In the Court's view, to allow that would not only destabilize the security
of treaty relations but would also severely undermine the principle of pacta
sunt servanda.
Thus it is not as if the Court did not take into consideration the
scientific evidence presented by Hungary in particular regarding the effects
on its environment of the Project, but the Court reached the conclusion that
such evidence was not sufficient to allow Hungary unilaterally to suspend or
terminate the Treaty. This finding, in my view, is not only of significance
to Slovakia and Hungary the Parties to the dispute but it also
represents a significant statement by the Court rejecting the argument that
obligations assumed under a validly concluded treaty can no longer be
observed because they have proved inconvenient or as a result of the
emergence of a new wave of legal norms, irrespective of their legal
character or quality. Accordingly, not for the first time and in spite of
numerous breaches over the years, the Court has in this case upheld and
reaffirmed the principle that every treaty in force is binding upon the
parties and must be performed in good faith (Article 26 of the Vienna
Convention on the Law of Treaties).
Nor can this finding of the Court be regarded as a mechanical application
of the principle of pacta sunt servanda or the invocation of the maxim
summun jus summa injuria but it ought rather to be seen as a reaffirmation
of the principle that a validly concluded treaty can be suspended or
terminated only with the consent of all the parties concerned. Moreover, the
Parties to this dispute can also draw comfort from the Court's finding in
upholding the continued validity of the Treaty and enjoining them to fulfil
their obligations under the Treaty so as to achieve its aims and
objectives.[p145]
I also concur with the Court's findings that Czechoslovakia was entitled to
proceed, in November 1991, to Variant C in so far as it then confined itself
to undertaking works which did not predetermine its final decision. On the
other hand, I cannot concur with the Court's finding that Czechoslovakia was
not entitled to put Variant C into operation from October 1992. The Court
reached this latter conclusion after holding that Hungary's suspension and
abandonment of the works for which it was responsible under the 1977 Treaty
was unlawful, and after acknow-ledging the serious problems with which
Czechoslovakia was confronted as a result of Hungary's decision to abandon
the greater part of the construction of the System of Locks for which it
was responsible under the Treaty. The Court likewise recognized that huge
investments had been made, that the construction at Gabcikovo was all but
finished, the bypass canal completed, and that Hungary itself, in 1991, had
duly fulfilled its obligations under the Treaty in this respect by
completing work on the tailrace canal. The Court also recognized that not
using the system would not only have led to considerable financial losses of
some $2.5 billion but would have resulted in serious consequences for the
natural environment.
It is against this background that the Court also reaffirmed the principle
of international law that, subject to the appropriate limitations, a State
party to a treaty, when confronted with a refusal by the other party to
perform its part of an agreed project, is free to act on its own territory
and within its own jurisdiction so as to realize the original object and
purpose of the treaty, thereby limiting for itself the damage sustained and,
ultimately, the compensatory damages to be paid by the other party.
As the Judgment recalled, Article 1 of the 1977 Treaty stipulated that the
Gabcikovo-Nagymaros Project was to comprise a "joint investment" and to
constitute a "single and operational system of locks", consisting of two
sections, Gabcikovo and Nagymaros. According to Article 5, paragraph 5, of
the Treaty, each of the contracting parties had specific responsibilities
regarding the construction and operation of the System of Locks.
Czechoslovakia was to be responsible for, inter alia:
"(1) the Dunakiliti-Hrusov head-water installations on the left bank, in
Czechoslovak territory;
(2) the head-water canal of the by-pass canal, in Czechoslovak territory;
(3) the Gabcikovo series of locks, in Czechoslovak territory;
(4) the flood-control works of the Nagymaros head-water installations, in
Czechoslovak territory, with the exception of the lower Ipel district;
(5) restoration of vegetation in Czechoslovak territory." [p146]
Hungary was to be responsible for, inter alia:
"(1) the Dunakiliti-Hrusov head-water installations on the right bank, in
Czechoslovak territory, including the connecting weir and the diversionary
weir;
(2) the Dunakiliti-Hrusov head-water installations on the right bank, in
Hungarian territory;
(3) the Dunakiliti dam, in Hungarian territory;
(4) the tail-water canal of the by-pass canal, in Czechoslovak territory;
(5) deepening of the bed of the Danube below Palkovicovo, in Hungarian and
Czechoslovak territory;
(6) improvement of the old bed of the Danube, in Hungarian and Czechoslovak
territory;
(7) operational equipment of the Gabcikovo system of locks (transport
equipment, maintenance machinery), in Czechoslovak territory;
(8) the flood-control works of the Nagymaros head-water installations in
the lower Ipel district, in Czechoslovak territory;
(9) the flood-control works of the Nagymaros head-water installations, in
Hungarian territory;
(10) the Nagymaros series of locks, in Hungarian territory;
(11) deepening of the tail-water bed below the Nagymaros system of locks, in
Hungarian territory;
(12) operational equipment of the Nagymaros system of locks (transport
equipment, maintenance machinery), in Hungarian territory;
(13) restoration of vegetation in Hungarian territory."
In accordance with the Treaty and the concept of joint investment, some of
those structures, such as the Dunakiliti weir, the bypass canal, the
Gabcikovo dam and the Nagymaros dam were to become joint property,
irrespective of the territory on which they were located.
As noted in the Judgment, by the spring of 1989 the work on Gabcikovo was
well advanced: the Dunakiliti dam was 90 per cent complete, the Gabcikovo
dam was 85 per cent complete, the bypass canal was between 60 per cent
complete (downstream of Gabcikovo) and 95 per cent complete (upstream of
Gabcikovo), and the dykes of the Dunakiliti-Hrusov reservoir were between 70
and 98 per cent complete. This was not the case in the Nagymaros sector
where, although the dykes had been built, the only structure relating to the
dam itself was the coffer-dam which was to facilitate its construction.
When Hungary, on 13 May 1989, decided to suspend works on the Nagymaros part
of the Project because of alleged ecological hazards and later extended this
to the Gabcikovo section, thereby preventing the scheduled damming of the
Danube in 1989, this had a considerable, [p147] negative impact on the
Project which was envisaged as an integrated project and depended on the
actual construction of the planned installations at Nagymaros and
Gabcikovo. Hungary's contribution was therefore considered indispensable,
as some of the key structures were under its control and situated on its
territory.
Following prolonged and fruitless negotiations with Hungary regarding the
performance of their obligations under the Treaty, Czechoslovakia
proceeded, in November 1991, to what came to be known as the "provisional
solution", or Variant C. This was put into operation from October 1992 with
the damming up of the Danube at river kilometre 1851.7 on Czechoslovak
territory with resulting consequences on water and the navigation channel.
It entailed the diversion of the Danube some 10 kilometres upstream of
Dunakiliti on Czechoslovak territory. In its final stage it 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 designed
to have a smaller surface area and provided approximately 30 per cent less
than the storage initially contemplated. Provision was made for ancillary
works, namely: an intake structure to supply the Mosoni Danube; a weir to
enable, inter alia, flood water to be directed along the old bed of the
Danube; an auxiliary ship-lock; and two hydroelectric 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 course of the Danube). The supply of the
water to the side-arms of the Danube on the Czechoslovak bank was to be
secured by means of two intake structures on the bypass canal at Dobrohost
and Gabcikovo. Not all problems were solved: a solution was to be found for
the Hungarian bank, and the question of lowering the bed of the Danube at
the confluence of the bypass canal and the old bed of the river remained.
In justification of the action, Slovakia contended that this solution was as
close to the original project as possible and that Czechoslovakia's
decision to proceed with it was justified by Hungary's decision to suspend
and subsequently abandon the construction works at Dunakiliti, which had
made it impossible for Czechoslovakia to attain the object and purpose
contemplated by the 1977 Treaty. Slovakia further explained that Variant C
represented the only possibility remaining to it of fulfilling the purposes
of the 1977 Treaty, including the continuing obligation to implement the
Treaty in good faith. It further submitted that Variant C for the greater
part was no more than what had already been agreed to by Hungary, and that
only those modifications were made which had become necessary by virtue of
Hungary's decision not to implement its obligations under the Treaty.
In spite of what appeared to me not only a cogent and reasonable explanation
for its action but also an eminently legal justification for [p148] Variant
C, the Court found that, though there was a strong factual similarity
between Variant C and the original Project in its upstream component (the
Gabcikovo System of Locks), the difference from a legal point of view was
striking. It observed that the basic characteristics of the 1977 Treaty
provided for a "joint investment", "joint ownership" of the most important
construction of the Gabcikovo-Nagymaros Project and for the operation of
this "joint property" as a "co-ordinated single unit". The Court reasoned
that all this could not be carried out by unilateral action such as that
involving Variant C and that, despite its physical similarity with the
original Project, it differed sharply in its legal characteristics. The
Court also found that, in operating Variant C, Slovakia essentially
appropriated for its own use and benefit between 80 and 90 per cent of the
waters of the Danube before returning them to the main bed of the river
downstream of Gabcikovo. This act, in the Court's view, deprived Hungary of
its right to an equitable share of the natural resources of the river, this
being not only a shared international watercourse but an international
boundary river.
In the light of these findings, the Court concluded that Czechoslovakia, by
putting into operation Variant C, did not apply the Treaty, but, on the
contrary, violated certain of its express provisions and in so doing
committed an internationally wrongful act. In its reasoning, the Court
stated that it had placed emphasis on the "putting into operation" of
Variant C, the unlawfulness residing in the damming of the Danube.
This finding by the Court calls for comment. In the first place, it is to be
recalled that the Court found that Hungary's suspension and unilateral
termination of the Treaty was unlawful. Secondly, the Court held that a
State party confronted, as Czechoslovakia was, with a refusal by the other
party to perform its part of an agreed project is entitled to act on its own
territory and within its own jurisdiction so as to realize the object and
purpose of the treaty. This notwithstanding, the Court took exception to the
fact that Variant C did not meet the requirements of Articles 1, 8, 9 and 10
of the 1977 Treaty regarding a "single and operational system of locks",
"joint ownership" and "use and benefits of the system of locks in equal
measure". In its view, "by definition all this could not be carried out by
unilateral measure". This stricture of Variant C is not, in my respectful
opinion, warranted. The unilateral suspension and termination of the Treaty
and the works for which Hungary was responsible under it had amounted not
only to a repudiation of the Treaty; it frustrated the realization of the
Project as a single and operational system of works Jointly owned and used
for the benefit of the contracting parties in equal measure. As a result of
Hungary's acts, the objective of the original Project could only have been
achieved by Slovakia alone operating it; according to the material before
the Court, Variant C constituted the minimum modification of the original
Project necessary to enable the aim and objective of the original Project to
be [p149] realized. It should be recalled that but for the suspension and
abandonment of the works, there would have been no Variant C, and without
Variant C, the objective of the act of Hungary which the Court has
qualified as unlawful would have been realized thus defeating the object
and purpose of the Treaty. In my view Variant C was therefore a genuine
application of the Treaty and it was indispensable for the realization of
its object and purpose. If it had not proceeded to its construction,
according to the material before the Court, Czechoslovakia would have been
stranded with a largely finished but inoperative system, which had been very
expensive both in terms of cost of construction and in terms of acquiring
the necessary land. The environmental benefits in terms of flood control,
which was a primary object and purpose of the Treaty, would not have been
attained. Additionally, the unfinished state of the constructions would have
exposed them to further deterioration through continued inoperation.
Variant C was also held to be unlawful by the Court because, in its opinion,
Czechoslovakia, by diverting the waters of the Danube to operate Variant C,
unilaterally assumed control of a shared resource and thereby deprived
Hungary of its right to an equitable share of the natural resources of the
river with the continuing effects of the diversion of these waters upon
the ecology of the riparian area of the Szigetkoz and failed to respect
the degree of proportionality required by international law.
The implication of the Court's finding that the principle of equitable
utilization was violated by the diversion of the river is not free from
doubt. That principle, which is now set out in the Convention on the
Non-Navigational Uses of International Watercourses, is not new.
While it is acknowledged that the waters of rivers must not be used in such
a way as to cause injury to other States and in the absence of any settled
rules an equitable solution must be sought (case of the Diversion of Water
from the Meuse, Judgment, 1937, P.C.I.J., Series A/B, No. 70), this rule
applies where a treaty is absent. In the case under consideration Article
14, paragraph 2, of the 1977 Treaty provides that the contracting parties
may, without giving prior notice, both withdraw from the
Hungarian-Czechoslovak section of the Danube, and subsequently make use of
the quantities of water specified in the water balance of the approved Joint
Contractual Plan. Thus, the withdrawal of excess quantities of water from
the Hungarian-Czechoslovak section of the Danube to operate the Gabcikovo
section of the system was contemplated with compensation to the other party
in the form of an increased share of electric power. In other words, Hungary
had agreed within the context of the Project to the diversion of the Danube
(and, in the Joint Contractual Plan, to a provisional measure of withdrawal
of water from the Danube). Accordingly, it would appear that the normal
entitlement of the Parties [p150] to an equitable and reasonable share of
the water of the Danube under general international law was duly modified by
the 1977 Treaty which considered the Project as a lex specialis. Slovakia
was thus entitled to divert enough water to operate Variant C, and more
especially so if, without such diversion, Variant C could not have been put
into productive use. It is difficult to appreciate the Court's finding that
this action was unlawful in the absence of an explanation as to how Variant
C should have been put into operation. On the contrary, the Court would
appear to be saying by implication that, if Variant C had been operated on
the basis of a 50-50 sharing of the waters of the Danube, it would have been
lawful. However, the Court has not established that a 50-50 ratio of use
would have been sufficient to operate Variant C optimally. Nor could the
Court say that the obligations of the Parties under the Treaty had been
infringed or that the achievement of the objectives of the Treaty had been
defeated by the diversion. In the case concerning the Diversion of Water
from the Meuse, the Court found that, in the absence of a provision
requiring the consent of Belgium, "the Netherlands are entitled ... to
dispose of the waters of the Meuse at Maestricht" provided that the treaty
obligations incumbent on it were not ignored {Judgment, 1937, P.C.I.J.,
Series A/B, No. 70, p. 30). Applying this test in the circumstances which
arose, Variant C can be said to have been permitted by the 1977 Treaty as a
reasonable method of implementing it. Consequently Variant C did not violate
the rights of Hungary and was consonant with the objectives of the Treaty
regime.
Moreover the principle of equitable and reasonable utilization has to be
applied with all the relevant factors and circumstances pertaining to the
international watercourse in question as well as to the needs and uses of
the watercourse States concerned. Whether the use of the waters of a
watercourse by a watercourse State is reasonable or equitable and therefore
lawful must be determined in the light of all the circumstances. To the
extent that the 1977 Treaty was designed to provide for the operation of the
Project, Variant C is to be regarded as a genuine attempt to achieve that
objective.
One consequence of this finding by the Court is its prescription that unless
the Parties otherwise agree, Hungary shall compensate Slovakia for the
damage sustained by Czechoslovakia and by Slovakia on account of the
wrongful suspension and abandonment by Hungary of the 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.
While this finding would appear to aim at encouraging the Parties to
negotiate an agreement so as realize the aims and objectives of the Treaty,
albeit in a modified form, it appears to suggest that the Court considered
the wrongful conduct of the Parties to be equivalent. This somehow
emasculates the fact that the operation of Variant C would not [p151] have
been necessary if the works had not been suspended and terminated in the
first place. It was this original breach which triggered the whole chain of
events. At least a distinction should have been drawn between the
consequences of the "wrongful conduct" of each Party, hence my unwillingness
to concur with the finding. While Article 38, paragraph 2, of its Statute
allows the Court to decide a case ex aequo et bono, this can only be done
with the agreement of the parties to a dispute.
The Judgment also alluded to "the continuing effects of the diversion of
these waters on the ecology of the riparian area of the Szigetkoz". It is
not clear whether by this the Court had reached the conclusion that
significant harm had been caused to the ecology of the area by the
operation of Variant C.
In the light of the foregoing considerations, I take the view that the
operation of Variant C should have been considered as a genuine attempt by
an injured party to secure the achievement of the agreed objectives of the
1977 Treaty, in ways not only consistent with that Treaty but with
international law and equity.
In his separate opinion in the case concerning the Diversion of Water from
the Meuse, Judge Hudson stated that
"[Wjhat are widely known as principles of equity have long been considered
to constitute a part of international law, and as such they have often been
applied by international tribunals, . . ." (Judgment, ‘937, P.C.I.J., Series
A/B, No. 70, p. 76).
He went on to point out that
"It would seem to be an important principle of equity that where two parties
have assumed an identical or a reciprocal obligation, one party which is
engaged in a continuing non-performance of that obligation should not be
permitted to take advantage of a similar non-performance of that obligation
by the other party. The principle finds expression in the so-called maxims
of equity which exercised great influence in the creative period of the
development of the Anglo-American law. Some of these maxims are . . .; 'He
who seeks equity must do equity.' It is in line with such maxims that 'a
court of equity refuses relief to a plaintiff whose conduct in regard to the
subject-matter of the litigation has been improper' (13 Halsbury's Laws of
England (2nd ed., 1934), p. 87). A very similar principle was received into
Roman Law. The obligations of a vendor and a vendee being concurrent,
'neither could compel the other to perform unless he had done, or tendered,
his own part' (Buckland, Text Book of Roman Law (2nd ed., 1932), p. 493)."
(Ibid., p. 77.)
Judge Hudson took the view that:
"The general principle is one of which an international tribunal should make
a very sparing application. It is certainly not to be [p152] thought that a
complete fulfilment of all its obligations under a treaty must be proved as
a condition precedent to a State's appearing before an international
tribunal to seek an interpretation of that treaty. Yet, in a proper case,
and with scrupulous regard for the limitations which are necessary, a
tribunal bound by international law ought not to shrink from applying a
principle of such obvious fairness." (P.C.I.J., Series A/B, No. 70, p. 77.)
Judge Hudson continued,
"Yet, in a particular case in which it is asked to enforce the obligation
to make reparation, a court of international law cannot ignore special
circumstances which may call for the consideration of equitable
principles." (Ibid., p. 78.)
It is my view that this case, because of the circumstances surrounding it,
is one which calls for the application of the principles of equity.
The importance of the River Danube for both Hungary and Slovakia cannot be
overstated. Both countries, by means of the 1977 Treaty, had agreed to
co-operate in the exploitation of its resources for their mutual benefit.
That Treaty, in spite of the period in which it was concluded, would seem to
have incorporated most of the environmental imperatives of today, including
the precautionary principle, the principle of equitable and reasonable
utilization and the no-harm rule. None of these principles was proved to
have been violated to an extent sufficient to have war-ranted the unilateral
termination of the Treaty. The Court has gone a long way, rightly in my
view, in upholding the principle of the sanctity of treaties. Justice would
have been enhanced had the Court taken account of special circumstances as
mentioned above.
(Signed) Abdul G. KOROMA.
[p153]
DISSENTING OPINION OF JUDGE ODA
Introduction
1. I have voted against operative paragraph 1C of the Judgment (para. 155)
as I am totally unable to endorse the conclusions that, on the one hand,
"Czechoslovakia was entitled to proceed, in November 1991, to the
'provisional solution'" and, on the other hand, that "Czechoslovakia was
not entitled to put into operation, from October 1992, this 'provisional
solution'" and I cannot subscribe to the reasons given in the Judgment in
support of those conclusions.
I have also voted against operative paragraph 2D (para. 155). I have done so
because the request made by myself and other judges to separate this
paragraph into two so that it could be voted on as two separate issues was
simply rejected for a reason which I do not understand. I have therefore had
to vote against this paragraph as a whole, although I had wanted to support
the first part of it.
I am in agreement with the conclusions that the Court has reached on the
other points of the operative paragraph of the Judgment. However, even with
regard to some of the points which I support, my reasoning differs from that
given in the Judgment. I would like to indicate several points on which I
differ from the Judgment through a brief presentation of my overall views
concerning the present case.
I. The 1977 Treaty and the Joint Contractual Plan (JCP) for the
Gabcνkovo-Nagymaros System of Locks
2. (The Project.) The dispute referred to the Court relates to a Project
concerning the management of the river Danube between Bratislava and
Budapest, which a number of specialists serving the Governments of
Czechoslovakia and Hungary, as well as those employed in corporations of
those two States (which were governed in accordance with the East European
socialist regime), had been planning since the end of the Second World War
under the guidance of the Soviet Union.
It is said that Hungary had, even before the rise of the communist regime,
proposed the building of a power plant at Nagymaros on Hungarian territory.
However, with the co-operation of the socialist countries and under the
leadership of the Soviet Union, the initiative for the man-agement of the
river Danube between Bratislava and Budapest was taken over by
Czechoslovakia, and the operational planning was undertaken by technical
staff working for COMECON. [p154]
The Project would have entailed the construction of (i) a bypass canal to
receive water diverted at the Dunakiliti dam (to be constructed on Hungarian
territory) and (ii) two power plants (one at Gabcikovo on the bypass canal
on Czechoslovak territory and one at Nagymaros on Hungarian territory). It
may well have been the case that the bypass canal was also required for the
future management of the river Danube with respect to flood prevention and
the improvement of international navigation facilities between Bratislava
and Budapest. However, the bypass canal was aimed principally at the
operation of the Gabcikovo power plant on Czechoslovak territory and the
Dunakiliti dam, mostly on Hungarian territory, was seen as essential for the
filling and operation of that canal, while the Nagymaros System of Locks on
Hungarian territory was to have been built for the express purpose of
generating electric power at Nagymaros and partially for the purpose of
supporting the peak-mode operation of the Gabcikovo power plant.
The whole Project would have been implemented by means of "joint investment"
aimed at the achievement of "a single and indivisible operational system of
works" (1977 Treaty, Art. 1, para. 1).
3. (The 1977 Treaty.) The Project design for the Gabcikovo-Nagy-maros System
of Locks had been developed by administrative and technical personnel in
both countries and its realization led to the conclusion, on 16 September
1977, of the Treaty Concerning the Construction and Operation of the
Gabcikovo-Nagymaros System of Locks. I shall refer to this Treaty as the
1977 Treaty.
The 1977 Treaty was signed by the Heads of each Government (for
Czechoslovakia, the Prime Minister; for Hungary, the Chairman of the Council
of Ministers), and registered with the United Nations Secretariat (UNTS,
Vol. 236, p. 241). It gave, on the one hand, an overall and general picture
(as well as some details of the construction plan) of the Project for the
Gabcikovo-Nagymaros System of Locks (which would, however, have in essence
constituted a "partnership" according to the concept of municipal law) (see
1977 Treaty, Chaps. I-IV), while, on the other hand, it aimed, as an
ordinary international treaty, to serve as an instrument providing for the
rights and duties of both parties in relation to the future management of
the river Danube (see 1977 Treaty, Chaps. V-XI).
Under the plan described in the 1977 Treaty, the cost of the "joint
investment" in the system of locks was to have been borne by the respective
parties and the execution of the plan, including labour and supply, was to
have been apportioned between them (1977 Treaty, Art. 5). The Dunakiliti
dam, the bypass canal, the Gabcikovo series of locks and the Nagymaros
series of locks were to have been owned jointly (1977 Treaty, Art. 8) and
the parties assumed joint responsibility for the construction of those
structures. More concretely, the project for the diversion of the waters of
the river Danube at Dunakiliti (on Hungarian territory) into [p155] the
bypass canal (on the territory of Czechoslovakia), and the construction of
the dams together with the power stations at Gabcikovo and Nagymaros were to
have been funded jointly by the parties. The electric power generated by
those two power stations was to have been available to them in an equal
measure (1977 Treaty, Art. 9).
It must be noted, however, that the 1977 Treaty does not seem to have been
intended to prescribe in detail the content of the construction plan, that
being left to the Joint Construction Plan to be drafted by the parties
which, for the sake of convenience, I shall refer to as the JCP. While some
detailed provisions in Chapters I-IV of the 1977 Treaty concerning the
completion of the Project did in fact, as stated above, correspond to
provisions subsequently incorporated into the JCP, the Preamble to the 1977
Treaty confines itself to stating that "[Hungary and Czechoslovakia] decided
to conclude an Agreement concerning the construction and operation of the
Gabcikovo-Nagymaros System of Locks". The 1977 Treaty lacks the form of
words usually present in any international treaty which generally indicates
that the parties have thus agreed the following text (which text usually
constitutes the main body of the treaty). This fact further reinforces the
view that the 1977 Treaty is intended only to indicate the basic
construction plan of the Project and to leave the details of planning to a
separate instrument in the form of the JCP.
4. (The Joint Contractual Plan.) The drafting of the JCP was already
anticipated in the Agreement regarding the Drafting of the Joint
Contractual Plan concerning the Gabcikovo-Nagymaros Barrage System of 6 May
1976 (hereinafter referred to as the 1976 AgreementFN1), signed by
plenipotentiaries at the level of Deputy Minister. The Hungarian
translation states in its Preamble that
---------------------------------------------------------------------------------------------------------------------- FN1
This Agreement is not to be found, even in the World Treaty Index, 1983. The
English text is to be found in the documents presented by both Parties but
they are not identical (Memorial of Slovakia, Vol. 2. p. 25; Memorial of
Hungary. Vol. 3, p. 219).
---------------------------------------------------------------------------------------------------------------------
"[the parties] have decided on the basis of a mutual understanding with
regard to the joint implementation of the Hungary-Czechoslovakia
Gabcikovo-Nagymaros Barrage System ... to conclude an Agreement for the
purpose of drafting a Joint Contractual Plan for the barrage system".
As stated above, the 1976 Agreement was concluded in order to facilitate the
future planning of the Project and the 1977 Treaty provided some guidelines
for the detailed provisions to be included in the JCP, which was to be
developed jointly by the representatives of both States as well as by the
enterprises involved in the Project. The time-schedule for the
implementation of the construction plan was subsequently set out in the
Agreement on Mutual Assistance in the Course of Building the Gab-[p156]cikovo-Nagymaros Dam of 16 September 1977 (hereinafter referred to as
the 1977 AgreementFN2), the same date on which the 1977 Treaty was
signedFN3. It was not made clear whether those two Agreements of 1976 and
1977 themselves constituted the JCP or whether the JCP would be further
elaborated on the basis of these Agreements.
---------------------------------------------------------------------------------------------------------------------- FN2
This Agreement is not to be found, even in the World Treaty Index, 1983. The
English text is to be found in the documents presented by both Parties but
they are not identical (Memorial of Slovakia, Vol. 2, p. 71: Memorial of
Hungary, Vol. 3. p. 293).
FN3 The time-limit for the construction plan was revised in the Protocol
concerning the Amendment of the [1977] Treaty signed on 10 October 1983; see
also the Protocol concerning the Amendment of the 1977 Agreement signed on
10 October 1983 and the Protocol concerning the Amendment of the 1977
Agreement signed on 6 February 1989.
---------------------------------------------------------------------------------------------------------------------
In fact, the text of the JCP seems to have existed as a separate instrument
but neither Party has submitted it to the Court in its concrete and complete
form. A "summary description" of the JCP, dated 1977, was presented by
Hungary (Memorial of Hungary, Vol. 3, p. 298) while Slovakia presented a
"summary report" as a part of the "JCP Summary Documentation" (Memorial of
Slovakia, Vol. 2, p. 33). Neither of those documents gave a complete text
but they were merely compilations of excerpts. Neither document gave a
precise indication of the date of drafting. What is more, one cannot be
certain that those two documents as presented by the two Parties are in fact
identical. The Judgment apparently relies on the document presented by
Hungary and received in the Registry on 28 April 1997 in reply to a question
posed by a Judge on 15 April 1997 during the course of the oral arguments.
This document, the Joint Contractual Plan's Preliminary Operating Rules and
Maintenance Mode, contains only extremely fragmentary provisions. I submit
that the Court did not, at any stage, have sufficient knowledge of the JCP
in its complete form.
5. (Amendment of the Joint Contractual Plan.) I would like to repeat that
the JCP is a large-scale plan involving a number of corporations of one or
the other party, as well as foreign enterprises, and that the JCP, as a
detailed construction plan for the whole Project, should not be considered
as being on the same level as the 1977 Treaty itself which, however, also
laid down certain guidelines for the detailed planning of the Project. As in
the case of any construction plan of a "partnership" extending over a long
period of time, the JCP would in general have been, and has been in fact,
subject to amendments and modifications discussed between the parties at
working level and those negotiations would have been undertaken in a
relatively flexible manner where necessary, in the course of the
construction, without resort to the procedures relating to amendment of the
1977 Treaty. In other words, the detailed provisions of the construction
plan of the JCP to implement the Project concerning the Gabcikovo-Nagymaros
System of Locks as defined in the 1977 Treaty should be considered as
separate from the 1977 Treaty itself. [p157]
6. (The lack of provision in the JCP for dispute settlement.) One may well
ask how the parties should have settled any differences of views which might
have occurred between the two States with regard to the design and planning
of the construction or the amendment of that design. The designing or the
amendment of the design should have been effected with complete agreement
between the two parties but the 1976 Agreement, which was the first
document providing for the future design of the JCP, scarcely contemplated
the possibility of the two sides being unable to reach an agreement in this
respect. The 1976 Agreement states that, if the investment and planning
organs cannot reach a mutual understanding on the issues which are disputed
within the co-operation team, the investors shall report to the Joint
Committee for a solution. There was no provision for a situation in which
the Joint Committee might prove unable to settle such differences between
the parties. It was assumed that there was no authority above the Joint
Committee which would be competent to determine the various merits of the
plan or of proposed amendments to it.
In view of the fact that this Project was to be developed by COMECON under
Soviet leadership, it may have been tacitly considered that no dispute
would ever get to that stage. In the event that no settlement could be
reached by the Joint Committee, one or the other party would inevitably have
had to proceed to a unilateral amendment. However, such an amendment could
not have been approved unconditionally but would have had to have been
followed by a statement of the legitimate reasons underlying its proposal.
7. (The 1977 Treaty and the Joint Contractual Plan.) It is therefore my
conclusion that, on the one hand, the 1977 Treaty between Czechoslovakia
and Hungary not only provided for a generalized regime of rights and duties
accepted by each of them in their mutual relations with regard to the
management of the river Danube (1977 Treaty, Chaps. V-XI), but also bound
the parties to proceed jointly with the construction of the
Gabcikovo-Nagymaros System of Locks (the construction of (i) the Dunakiliti
dam which would permit the operation of the bypass canal, (ii) the Gabcikovo
dam with its power plant and (iii) the Nagymaros dam with its power plant).
The construction of the Gabcikovo-Nagymaros System of Locks might have
constituted a type of "partnership" which would have been implemented
through the JCP (1977 Treaty, Chaps. I-IV).
On the other hand, the JCP was designed to incorporate detailed items of
technical planning as well as provisions for their amendment or revision
and did not necessarily have the same legal effect as the 1977 Treaty, an
international treaty.
Those two instruments, that is, the 1977 Treaty and the JCP (which was
designed and modified after 1977), should be considered as separate
instruments of differing natures from a legal point of view. [p158]
II. The Suspension and Subsequent Abandonment of the Works by Hungary in
1989
(Special Agreement, Art. 2, para. 1 (a); Art. 2, para. 2)
1. Special Agreement, Article 2, Paragraph I (a)
8. Under the terms of the Special Agreement, the Court is requested to
answer the question
"whether [Hungary] was entitled to suspend and subsequently abandon, in
1989, the works on the Nagymaros Project and on the part of the Gabcikovo
Project for which the Treaty attributed responsibility to [Hungary]" (Art.
2, para. 1 (aJ).
9. (Actual situation in the late 1980s.) This question put in the Special
Agreement should, in my view, have been more precisely worded to reflect the
actual situation in 1989. The work on the Gabcikovo Project had by that time
already been completed; the work at Nagymaros was still at a preliminary
stage, that is, the work on that particular barrage system had, to all
intents and purposes, not even started.
Hungary's actions in 1989 may be summed up as follows: firstly, on 13 May
1989, Hungary decided to suspend work at Nagymaros pending the completion of
various environmental studies. Secondly, Hungary decided, on the one hand,
on 27 October 1989, to abandon the Nagymaros Project and, on the other, to
maintain the status quo at Dunakiliti, thus rendering impossible the
diversion of waters to the bypass canal at that location. Hungary had,
however, made it clear at a meeting of the plenipotentiaries in June 1989
that it would continue the work related to the Gabcikovo sector itself, so
the matter of the construction of the Gabcikovo Barrage System itself was
not an issue for Hungary in 1989. The chronology of Hungary's actions is
traced in detail in the Judgment.
10. ( Violation of the 1977 Treaty.) Whatever the situation was in 1989
regarding the works to be carried out by Hungary, and in the light of the
fact that the failure to complete the Dunakiliti dam and the auxiliary
structures (the sole purpose of which was to divert water into the bypass
canal) would have made it impossible to operate the whole
Gabcikovo-Nagymaros System of Locks as "a single and indivisible operational
system of works" (1977 Treaty, Art. 1, para. 1), Hungary should have been
seen to have incurred international responsibility for its failure to carry
out the relevant works, thus being in breach of the 1977 Treaty. It is to be
noted that, at that stage, Hungary did not raise the matter of the
termination of the 1977 Treaty but simply suspended or abandoned the works
for which it was responsible.
In the light of the actions taken by Hungary with regard to the
Gab-cikovo-Nagymaros System of Locks, there can be no doubt that in 1989
Hungary violated the 1977 Treaty. The question remains, however, whether
Hungary was justified in violating its treaty obligations. I fully share the
view of the Court when it concludes that [p159]
"Hungary was not entitled to suspend and subsequently abandon, in 1989, the
works on the Nagymaros Project and on the part of the Gabd'kovo Project for
which the [1977] Treaty . . . attributed responsibility to it" (Judgment,
operative paragraph 155, point 1 A)
and that Hungary's wrongful act could not have been justified in any way.
Let me examine the situation in more detail. Hungary relies, in connection
with the Dunakiliti dam and the diversion of waters into the bypass canal at
Dunakiliti, upon the deterioration of the environment in the Szigetkoz
region owing to the reduced quantity of available water in the old Danube
river bed. In my view, however, the decrease in the amount of water flowing
into the old bed of the Danube as a result of the operation of the bypass
canal would have been an inevitable outcome of the whole Project as provided
for in the 1977 Treaty.
11. (Hungary's ill-founded claim of ecological necessity.) Certain effects
upon the environment of the Szigetkoz region were clearly anticipated by
and known to Hungary at the initial stage of the planning of the whole
Project. Furthermore, there was no reason for Hungary to believe that an
environmental assessment made in the 1980s would give quite different
results from those obtained in 1977, and require the total abandonment of
the whole Project.
I have no doubt that the Gabcikovo-Nagymaros System of Locks was, in the
1970s, prepared and designed with full consideration of its potential
impact on the environment of the region, as clearly indicated by the fact
that the 1977 Treaty itself incorporated this concept as its Article 19
(entitled Protection of Nature), and I cannot believe that this assessment
made in the 1970s would have been significantly different from an
ecological assessment 10 years later, in other words, in the late 1980s. It
is a fact that the ecological assessment made in the 1980s did not convince
scientists in Czechoslovakia.
I particularly endorse the view taken by the Court when rejecting the
argument of Hungary, that ecological necessity cannot be deemed to justify
its failure to complete the construction of the Nagymaros dam, and that
Hungary cannot show adequate grounds for that failure by claiming that the
Nagymaros dam would have adversely affected the downstream water which is
drawn to the bank-filtered wells constructed on Szentendre Island and used
as drinking water for Budapest (Judgment, para. 40).
12. (Environment of the river Danube.) The 1977 Treaty itself spoke of the
importance of the protection of water quality, maintenance of the bed of the
Danube and the protection of nature (Arts. 15, 16, 19), and the whole
structure of the Gabcikovo-Nagymaros System of Locks was certainly founded
on an awareness of the importance of environmental protection. It cannot be
said that the drafters of either the Treaty itself or of [p160] the JCP
failed to take due account of the environment. There were, in addition, no
particular circumstances in 1989 that required any of the research or
studies which Hungary claimed to be necessary, and which would have required
several years to be implemented. If no campaign had been launched by
environmentalist groups, then it is my firm conviction that the Project
would have gone ahead as planned.
What is more, Hungary had, at least in the 1980s, no intention of
withdrawing from the work on the Gabcikovo power plant. One is at a loss to
understand how Hungary could have thought that the operation of the bypass
canal and of the Gabcikovo power plant, to which Hungary had not objected at
the time, would have been possible without the completion of the works at
Dunakiliti dam.
13. (Ecological necessity and State responsibility.) I would like to make
one more point relating to the matter of environmental protection under the
1977 Treaty. The performance of the obligations under that Treaty was
certainly the joint responsibility of both Hungary and Czecho-slovakia. If
the principles which were taken as the basis of the 1977 Treaty or of the
JCP had been contrary to the general rules of international law
environmental law in particular the two States, which had reached
agreement on their joint investment in the whole Project, would have been
held jointly responsible for that state of affairs and jointly responsible
to the international community. This fact does not imply that the one party
(Czechoslovakia, and later Slovakia) bears responsibility towards the other
(Hungary).
What is more, if a somewhat more rigorous consideration of environmental
protection had been needed, this could certainly have been given by means of
remedies of a technical nature to those parts of the JCP not the 1977
Treaty itself that concern the concrete planning or operation of the whole
System of Locks. In this respect, I do not see how any of the grounds
advanced by Hungary for its failure to perform its Treaty obligations (and
hence for its violation of the Treaty by abandoning the construction of the
Dunakiliti dam) could have been upheld as relating to a state of "ecological
necessity".
14. (General comments on the preservation of the environment.) If I may give
my views on the environment, I am fully aware that concern for the
preservation of the environment has rapidly entered the realm of
international law and that a number of treaties and conventions have been
concluded on either a multilateral or bilateral basis, particularly since
the Declaration on the Human Environment was adopted in 1972 at Stockholm
and reinforced by the Rio de Janeiro Declaration in 1992, drafted 20 years
after the Stockholm Declaration.
It is a great problem for the whole of mankind to strike a satisfactory
balance between more or less contradictory issues of economic develop-[p161]ment on the one hand and preservation of the environment on the other,
with a view to maintaining sustainable development. Any construction work
relating to economic development would be bound to affect the existing
environment to some extent but modern technology would, I am sure, be able
to provide some acceptable ways of balancing the two conflicting interests.
2. Special Agreement, Article 2, Paragraph 2
15. The Court is asked, under Article 2, paragraph 2, of the Special
Agreement, to
"determine the legal consequences, including the rights and obligations for
the Parties, arising from its Judgment on the questions in paragraph 1 of
this Article".
16. (Responsibility of Hungary.) In principle, Hungary must 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". I was, however, in favour of the first part of operative
paragraph 155, point 2D, of the Judgment. As 1 stated at the outset, I had
to vote against the whole of paragraph 155, point 2 D, as that first part of
the paragraph was not put to the vote as a separate issue.
17. (Difference between the Gabcikovo Project and the Nagymaros Project.)
When one is considering the legal consequences of the responsibility
incurred by Hungary on account of its violation of its obligations to
Czechoslovakia under the 1977 Treaty and the JCP, it seems to me that there
is a need to draw a further distinction between (i) Hungary's suspension of
the work on the Dunakiliti dam for the diversion of water into the bypass
canal, which rendered impossible the operation of the Gabcikovo power plant,
and (ii) its complete abandonment of the work on the Nagymaros System of
Locks, each of which can be seen as having a completely different character.
18. (The Dunakiliti dam and the Gabcikovo plant.) The construction of the
Dunakiliti dam and of the bypass canal, which could have been filled only by
the diversion of the Danube waters at that point, form the cornerstone of
the whole Project. Without the Dunakiliti dam the whole Project could not
have existed in its original form. The abandonment of work on the Dunakiliti
dam meant that the bypass canal would be unusable and the operation of the
Gabcikovo power plant impossible. Hungary must assume full responsibility
for its suspension of the works at Dunakiliti in violation of the 1977
Treaty.
The reparation to be paid by Hungary to Slovakia for its failure in this
respect, as prescribed in the 1977 Treaty, will be considered in the fol-[p162]lowing part of this opinion, together with the matter of the
construction of the Cunovo dam by Czechoslovakia, which took over the
function of the Dunakiliti dam for the diversion of water into the bypass
canal (see para. 34 below).
19. (The Nagymaros dam I.) With regard to the Nagymaros dam, Hungary
cannot escape from its responsibility for having abandoned an integral part
of the whole Project. However, this matter is very different from the
situation concerning the Gabcikovo Project. In fact, the site where the
Nagymaros power plant was to have been built is located completely on
Hungarian territory. Although the plant would also have supplied electric
power to Czechoslovakia just as the Gabcikovo power plant would likewise
have provided a part of its electric power to Hungary, the amount of power
to be produced by the Gabcikovo power plant was far greater than that
predicted for the Nagymaros power plant.
In 1989, Hungary seems to have found that the Nagymaros power plant was no
longer necessary to its own interests. If the Nagymaros dam was initially
considered to be a part of the whole Project, it was because an equal share
of the power output of the Nagymaros power plant was to have been guaranteed
to Czechoslovakia in exchange for an equal share for Hungary of the electric
power generated by the Gabcikovo power plant. The anticipated supply of
electric power from the Nagymaros plant could have been negotiated taking
into account the agreed supply to Hungary of electric power from the
Gabcikovo plant. The Nagymaros dam would also have been required essentially
in order to enable the operation of the Gabcikovo power plant in peak mode
and it might therefore have been seen as not really essential to the Project
as a whole.
20. ( The Nagymaros dam //.) The matter of the equal shares of the
electric power from the Nagymaros power plant to be guaranteed to
Czechoslovakia and the feasibility of the operation of the Gabcikovo power
plant in peak mode could have been settled as modalities for the execution
of the JCP, even in the event of the abandonment of the Nagymaros power
plant, as technical questions could be dealt with in the framework of the
JCP without any need to raise the issue of reparations to be paid by Hungary
to Czechoslovakia in connection with the aban-donment of the Nagymaros dam.
There can be no doubt that the construction of the Nagymaros System of Locks
was seen as a major link in the chain of the whole Project in connection
with the construction of the Gabcikovo System of Locks on Czechoslovak
territory. The construction of the Nagymaros System of Locks was, however,
essentially a matter that fell within Hungary's exclusive competence on its
own territory. In the late 1980s, Hungary found it no longer necessary to
produce electricity from the Nagymaros power plant on its own territory, and
the abandonment of the Nagymaros dam did not, in fact, cause any significant
damage to Czechoslovakia and [p163] did not have any adverse affect on
interests that Czechoslovakia would otherwise have secured.
In this connection, I must add that Czechoslovakia would have been permitted
under international law as prescribed in the Vienna Convention on the Law
of Treaties to terminate the 1977 Treaty on the ground of Hungary's failure
to perform the obligations of that Treaty. In fact, however, Czechoslovakia
did not do so but chose to implement the 1977 Treaty without Hungary's
co-operation because the completion of the Project, as envisaged in the 1977
Treaty, would be greatly to its benefit.
Thus, although Hungary has to bear the responsibility for its abandonment
of the Nagymaros dam as a part of the joint project of the
Gabcikovo-Nagymaros System of Locks, the reparations that Hungary should pay
to the present-day Slovakia as a result are minimal (see para. 34 below).
III. The Implementation of Variant C (Damming of the Waters at Cunovo) by
Czechoslovakia
(Special Agreement, Art. 2, para. 1 (b); Art. 2, para. 2)
1. Special Agreement, Article 2, Paragraph I (b)
21. The Court is requested under the terms of the Special Agreement to
decide
"whether [Czechoslovakia] was entitled to proceed, in November 1991, to the
'provisional solution' and to put into operation from October 1992 this
system" (Art. 2, para. 1 (bj).
22. (Provisional solution ~ Variant C.J As Hungary had suspended work on
part of the Gabcikovo Project, more particularly the work at Dunakiliti,
thus preventing the diversion of the water into the bypass canal, the
finalization of the whole Project, which was already nearly 70 per cent
complete, was rendered impossible.
In order to accomplish the purpose of the 1977 Treaty, Czechoslovakia, one
of the parties to that Treaty, was forced to start work on the diversion of
the waters into a bypass canal that lay within its own territory. That was
the commencement of the so-called "provisional solution" in other words,
Variant C in November 1991. Czechoslovakia had previously made it clear to
Hungary that, if Hungary were to abandon unilaterally the works at
Dunakiliti (which constituted the basis of the whole Project between the two
States), it would have to consider an alternative plan to accomplish the
agreed original Project. Variant C was designed by Czechoslovakia because it
had no other option in order to give life to the whole Project.
Since the agreed basic concept of the whole Project under the 1977 [p164]
Treaty had been jeopardized by Hungary, and since the benefit which
Czechoslovakia would have enjoyed as a result of the power plant at
Gabcikovo and all the benefits which would have been available to both
States with regard to international navigation as well as water management
(including flood prevention) of the river Danube had thereby been
threatened, it was permissible and not unlawful for Czechoslovakia to start
work on Variant C (the construction of the Cunovo dam). This would have an
effect similar to the original plan contemplated in the 1977 Treaty, that
is, the diversion of water into the bypass canal. Hungary, for its part, had
from the outset given its full agreement to the diversion of the Danube
waters into a bypass canal at Dunakiliti on its own territory.
23. (The lawfulness of the construction and operation of Variant C.) The
Court has found that "Czechoslovakia was entitled to proceed, in November
1991, to the 'provisional solution"' (Judgment, para. 155, point 1 B) under
the 1977 Treaty, which provided for a "partnership" for the construction of
a magnificent Project, but "was not entitled to put into operation, from
October 1992, this 'provisional solution'" (Judgment, para. 155, point 1
C), that is, diverting the waters at Cunovo. The "provisional solution" was
effected in order that Czechoslovakia might secure its rights and fulfil its
obligations under the 1977 Treaty. Its action implied nothing other than the
accomplishment of the original Project. Czechoslovakia claimed that the
construction of the Cunovo dam could have been justified as a countermeasure
taken in response to the wrongful act of Hungary (that is, the abandonment
of the works at Dunakiliti) but I believe that the construction of the
Cunovo dam was no more than the implementation of an alternative means for
Czechoslovakia to carry out the Project in the context of the JCP.
I would like to repeat that I cannot agree with the Judgment when it states,
as I pointed out in paragraph 1 above, that "Czechoslovakia was entitled to
proceed ... to the 'provisional solution'" but it "was not entitled to put
into operation . . . this 'provisional solution'" (see also Judgment, para.
79). I wonder if the Court is really of the view that construction work on a
project is permissible if the project ultimately, however, may never be
used? The plan to divert the waters of the Danube river into the bypass
canal where the Gabcikovo power plant was to be constructed was the essence
of the whole Project with which Hungary was in full agreement.
The Judgment states that the diverting of the Danube waters into the bypass
canal was not proportionate to the injury suffered by Czechoslovakia as a
result of Hungary's wrongful act (Judgment, para. 85). However, I hold the
firm view that since Hungary did nothing to divert the waters at Dunakiliti,
thus failing to execute its Treaty obligations, Czechoslovakia inevitably
had to proceed with Variant C, that is, the construction of the Cunovo dam
and the diversion of the waters of the Danube at that point, in execution of
the JCP, although this was not explicitly authorized in the 1977 Treaty.
This would have been a good reason to [p165] revise the JCP in order to
implement the 1977 Treaty, although the consent of Hungary to that solution
was not obtained. Czechoslovakia had the right to take that action.
24. ( Volume of diverted waters.) In this respect it should be added that
the construction and operation of the Cunovo dam was simply undertaken in
order to replace the Dunakiliti dam while control of the Danube waters,
as covered by Chapters V-XI of the 1977 Treaty, is another matter entirely
as 1 have already stated (see para. 3). The Judgment seems to indicate that
Czechoslovakia acted wrongfully by unilaterally diverting an undue
proportion of the Danube waters into the bypass canal, but the distribution
or sharing of those waters does not fall squarely within the framework of
the construction and operation of Variant C. (I wonder whether control over
the sharing of the water would have fallen under the exclusive competence of
Hungary if the Dunakiliti dam had been built.)
The Cunovo dam, which replaced the Dunakiliti dam, is said to have diverted
90 per cent of the available water into the bypass canal on Czechoslovak
territory. This figure for the division of the water might not reflect the
original intention of the parties, each of which wanted to have an equitable
share of the waters, with a reasonable amount of the water going into the
old Danube river bed and a similar reasonable amount going into the bypass
canal. However, the way in which the waters are actually divided does not
result simply from the construction of a dam at either Dunakiliti or at
Cunovo but, the diversion of waters at Cunovo has. in fact, been operated by
Czechoslovakia itself under its own responsibility.
The matter of the sharing of the waters between the bypass canal and the old
Danube river bed is but one aspect of the operation of the system and could
have been negotiated between the two States in an effort to carry on
applying the JCP. A minimal share of the river waters as currently
discharged into the old Danube river bed might have been contradictory to
the original Project, and for this, Czechoslovakia is fully responsible.
This matter, however, might well have been rectified by some mutually
acceptable arrangement. It may well be possible to control the distribution
of the water at Cunovo by the use of sluice-gates or by a modification to
the design of the dyke separating the waters in the Cunovo reser-voir. The
control of the water was not the essence of the Variant C project and could
still be dealt with in a more flexible manner through a revision or
redrafting of the relevant texts of the JCP.
2. Special Agreement, Article 2, Paragraph 2
25. The Court is requested under Article 2. paragraph 2, of the Special
Agreement [p166]
"to determine the legal consequences, including the rights and obligations
of the Parties, arising from its Judgment on the questions in paragraph 1 of
this Article".
26. (The lawfulness of Variant C.) The construction of Variant C was not
unlawful and Slovakia did not incur any responsibility to Hungary, except
that the way in which the Cunovo dam was controlled by Czechoslovakia seems
to have led to an unfair division of the waters between the old Danube river
bed and the bypass canal. Slovakia is entitled to reparation in the form of
monetary compensation from Hungary for some portion of the cost of the
construction work on the Cunovo dam met by Czechoslovakia alone as a result
of Hungary's failure to execute its Treaty obligations concerning the
completion of the Gabcikovo-Nagymaros System of Locks. The cost of the
construction of the Cunovo dam and the related works should in part be borne
by Hungary but, in exchange, it should be offered co-ownership of it. On the
other hand, if the operation of the Cunovo dam diverting waters into the old
Danube river bed has caused any tangible damage to Hungary, Slovakia should
bear the responsibility for this mishandling of the division of waters. It
must be noted, however, that, as a result of the planning of this whole
Project (especially the bypass canal), the volume of water flowing into the
old river bed could not be as great as before the Project was put into
operation.
IV. Termination of the 1977 Treaty by Hungary
(Special Agreement, Art. 2, para. 1 (c); Art. 2, para. 2)
1. Special Agreement, Article 2, Paragraph 1 (c)
27. The Court is requested under the terms of the Special Agreement to
decide "what are the legal effects of the notification, on 19 May 1992, of
the termination of the Treaty by [Hungary]" (Art. 2, para. 1 (c)).
28. (Hungary's notification of termination of the 1977 Treaty.) This
question concerns nothing other than the interpretation of the law of
treaties, as the Judgment properly suggests. The termination of the 1977
Treaty is essentially different from an amendment of the JCP. Hungary claims
that, as Variant C was in contradiction of the Plan and thus constituted a
wrongful act, the 1977 Treaty could be terminated because of that alleged
violation of the Treaty by Czechoslovakia.
I am in agreement with the Judgment when it states that the termination of
the 1977 Treaty by Hungary does not meet any of the criteria for the
termination of a treaty as set out in the Vienna Convention on the Law of
Treaties, which is considered as having the status of customary
international law. I share the view of the Court that the 1977 Treaty has [p167] remained in force, as the notification of termination made by Hungary
in 1992 could not have any legal effect (Judgment, para. 155, point 1 D).
2. Special Agreement, Article 2, Paragraph 2
29. No legal consequences will result from the Court's Judgment in this
respect, since the notification of termination of the 1977 Treaty by Hungary
must be seen as having had no legal effect.
V. The Final Settlement
(Special Agreement, Article 5)
30. Hungary and Slovakia have agreed under Article 5 of the Special
Agreement, that: "Immediately after the transmission of the Judgment the
Parties shall enter into negotiations on the modalities for its execution."
31. (Negotiations under Article 5 of the Special Agreement.) As I have
already said, my views differ from those set out in the Judgment in that I
believe that Czechoslovakia was entitled to proceed to the provisional
solution, namely, not only the construction of the Cunovo dam but also the
operation of that dam at Cunovo in November 1992 for diversion of water into
the bypass canal. As I see it, Czechoslovakia did not violate the 1977
Treaty. It is my opinion that the "negotiations" between Hungary and
Slovakia under Article 5 of the Special Agreement should be based on this
understanding and not on the finding stated in the Judgment in its
operative paragraph 155, points 1 C and 2D.
32. (The amendment of the Joint Contractual Plan.) The implementation by
Czechoslovakia of Variant C the construction of the Cunovo dam and the
damming of the waters for diversion into the bypass canal was a means of
executing the plan for the Gabcikovo-Nagymaros Sys-tem of Locks which had
originally been agreed by the Parties. The implementation of Variant C will
not remain a "provisional" solution but will, in future, form a part of the
JCP.
The mode of operation at the Gabcikovo power plant should be expressly
defined in the amended JCP so as to avoid the need for operation in peak
mode, as this has already been voluntarily abandoned by the Parties and does
not need to be considered here.
The way in which the waters are divided at Cunovo should be negotiated in
order to maintain the original plan, that is, an equitable share of the
waters and this should be spelt out in any revision or amendment of the
JCP. The equitable sharing of the water must both meet Hungary's concern for
the environment in the Szigetkoz region and allow satisfactory operation of
the Gabcikovo power plant by Slovakia, as well as the [p168] maintenance of
the bypass canal for flood prevention and the improvement of navigation
facilities. I would suggest that the JCP should be revised or some new
version drafted during the negotiations under Article 5 of the Special
Agreement in order to comply with the modalities which I have set out
above.
33. (Reassessment of the environmental effect). Whilst the whole Project of
the Gabcikovo-Nagymaros System of Locks is now in operation, in its
modified form (that is, with the Cunovo dam instead of the Dunakiliti dam
diverting the water to the bypass canal and with the abandonment of the work
on the Nagymaros dam/power plant), the Parties are under an obligation in
their mutual relations, under Articles 15, 16 and 19 of the 1977 Treaty,
and, perhaps in relations with third parties, under an obligation in general
law concerning environmental protection, to preserve the environment in the
region of the river Danube.
The Parties should continue the environmental assessment of the whole region
and search out remedies of a technical nature that could prevent the
environmental damage which might be caused by the new Project.
34. (Reparation.) The issues on which the Parties should negotiate in
accordance with Article 5 of the Special Agreement are only related to the
details of the reparation to be made by Hungary to Slovakia on account of
its having breached the 1977 Treaty and its failure to execute the Gabcikovo
Project and the Nagymaros Project. The legal consequences of these treaty
violations are different in nature, depending on whether they relate to one
or other separate part of the original Project. Hungary incurred
responsibility to Czechoslovakia (later, Slovakia) on account of its
suspension of the Gabcikovo Project and for the work carried out solely by
Czechoslovakia to construct the Cunovo dam. In addition, Czechoslovakia is
entitled to claim from Hungary the costs which it incurred during the
construction of the Dunakiliti dam, which subsequently became redundant
(see paras. 17 and 18 above).
With regard to the abandonment by Hungary of the Nagymaros dam, Hungary is
not, in principle, required to pay any reparation to Slovakia as its action
did not affect any essential interest of Slovakia (see para. 19 above).
There is one point which should not be overlooked, that is, as the Nagymaros
dam and power plant are, as Slovakia admits, no longer a part of the whole
Project, the construction of the bypass canal from Cunovo would be mostly
for the benefit of Slovakia and would provide no benefit to Hungary.
The main benefits of the whole Project now accrue to Slovakia, with the
exception of the flood prevention measures and the improved facilities for
international navigation, which are enjoyed by both States. This should be
taken into account when assessing the reparation to be paid as a whole by
Hungary to Slovakia. [p169]
In view of the statements I have made above, it is my firm belief that the
modalities of the reparation to be paid by Hungary to Slovakia should be
determined during the course of the negotiations to be held between the two
States.
(Signed) Shigeru ODA.
[p170]
DISSENTING OPINION OF JUDGE RANJEVA [Translation]
I find it difficult to subscribe to the conclusion in the Judgment that:
"Czechoslovakia was entitled to proceed, in November 1991, to the
'provisional solution"' and "Czechoslovakia was not entitled to put into
operation, from October 1992, this 'provisional solution'" (para. 155 (1)
(B) and (C)).
From the point of view of logic, these two propositions, even separated,
are incompatible. The construction of public works has as its ultimate
purpose their operation. How then is it possible to reconcile the lawfulness
of constructing Variant C with the unlawfulness of putting it into
operation?
Here I cannot subscribe to the analysis by the majority of the Members of
the Court on the true role of the wrong done by Hungary, which is the
subject-matter of the first paragraph of the dispositif, in the chain of
intersecting wrongs to which the Court has, rightly, drawn attention in
paragraph 150 of its reasoning.
The unlawfulness of the Hungarian decision to suspend, then abandon, the
works may not, in law, be called in question. Hungary has not fully
performed its obligations under the Budapest Treaty. Furthermore, the
chronology of events is unfavourable to the Hungarian cause. However, the
situation in fact and in law is not as simple as it appears on reading the
Court's analysis of it.
By favouring the chronological option in considering the facts, the majority
of the Court seems to give too simple an analysis of the sequence of events.
The structure of the questions set out in Article 2 of the Special Agreement
has not helped the Court in its task by disinclining it to attach any
importance to the legal effects of the intersecting wrongs which form the
cornerstone of the dispute that it had to decide.
The dual purpose of the Court's task under the terms of Article 2 of the
Special Agreement is the subject of an excellent analysis in paragraphs 130
and 131 of the present Judgment. My disagreement, though, relates to the
place of the intersecting wrongs which, in the eyes of the majority of the
Members of the Court, is pertinent only to the prescriptive part of the
Judgment, whereas in my opinion it constitutes the cornerstone of the
declaratory part.
The question which the Court could, or even should, have asked itself is
whether in the absence of Hungary's first act of unlawfulness in 1989, the
subsequent wrongs would have occurred and in particular whether the decision
to abandon the works would have been taken in November
[p168] 1991. That question, a hypothetical one, should have been raised, in
so far as at no point does the Court consider the point of determining
whether the Hungarian wrong caused a sufficiently proven risk which forced
the Czech and Slovak Federal Republic to repair the damage by the
construction and putting into operation of Variant C an issue which should
have led the Court to say whether one of the wrongs could have been absorbed
by another, so that the subsequent course of wrongful acts had only one
true cause.
That hypothetical question should have been asked in limine given the risk
of confusion built into the structure of Article 2, paragraph 1, of the
Special Agreement. Because of the classification of the facts relevant to
the case into two blocks of questions (a) and (b), combined with the
Hungarian decision of 1989 being taken as the starting-point for the
sequence of events, a bilaterally comprehensive approach to the issues was
encouraged to the detriment of an overall vision of the relationship between
the two Parties, since the bilaterally comprehensive view produced the
illusion of a quasi-mechanistic relationship between their respective
conduct. Such an analysis would have been well founded if the blocks (a) and
(b) of facts described in the question were on the one hand isolated and on
the other hand instantaneous in effect. Points (a) and (b) describe, within
an overall set of facts, the different acts which are imputable,
respectively and on different dates, to Hungary and to the Czech and Slovak
Federal Republic. That binary classification does not relate the sequence of
events.
In the present case, an analysis of the facts cannot be undertaken without
reference to the unbroken stream of acts and conduct of an ambiguous nature
that developed. The Project gives the impression of having been, ab initio,
the victim of a number of incidents and dogged by bad luck. Thus, as the
Court acknowledges, each of the Parties has committed distinct wrongs.
However, contrary to the observation of the majority of the Court, I
consider that each wrong played the role of catalyst for the other. This is
not a case of a single wrong committed at the same time by the two Parties,
nor of two successive wrongs, but of distinct wrongs which together led to
the existence of the situation currently before the Court. Each Party
contributed to creating a wrong which progressively helped to cause the
situation which is the subject-matter of the present dispute in its
entirety. It was necessary to put the interwoven nature of the conduct and
the wrongs in that light since, given the dual task of the Court under
Article 2 of the Special Agreement, the reciprocal nature of the wrongs
raises the problem of causality in the present dispute as a whole.
The general scheme of this Judgment is based on the idea that the Hungarian
wrong is the causa prima in law of the dispute. However, contrary to my
opinion, the majority of the Members of the Court sees its scope as limited
solely to the obligation of reparation: the intersecting nature of the
wrongs enables the Court to recommend "the zero option" [p172] as far as
reparation of the damage is concerned, as it emerges from operative
paragraph 2 D in the terms the Court has chosenFN1.
---------------------------------------------------------------------------------------------------------------------- FN1
The zero option is linked to a certain interpretation of the rule of
Pomponius according to which "Quod si quis ex culpa sua sentit, non
intelligitur damnum sentire" (Digest, "De rιgula juris", 50. 17). In other
words, a claimant is deprived of his right to reparation if he can be
accused of wrongdoing, whether or not it is the cause of the loss he has
suffered. The proposition of Pomponius was ruled out by canon law as
individualization of liability for fault gradually developed and mechanisms
for presuming liability weakened.
---------------------------------------------------------------------------------------------------------------------
With all the respect I have for the Court, 1 do not believe that the
obligation of reparation is the only area on which the intersecting nature
of the wrongs has had a bearing. The concept of violation of a norm, by the
commission of unlawful acts, is meaningless in absolute terms; it is only
meaningful in relation to the rights of each Party under the 1977 Treaty and
to the discretionary power of subjective characterization by a party itself
which is ascribed to it in law. The idea of violation thus enables each
party to infer the consequences from a course of conduct which it has
characterized as unlawful beforehand, in a discretionary manner. These
considerations lead on the one hand to consideration of the consequences of
the Hungarian wrong (para. 155 (1) (A)) for the sequence of events and on
the other hand to criticism of paragraph 155 (1) (B) of the present
Judgment.
No peremptory conclusion can be formulated as to the sequence of facts which
make up the conduct of each Party. The concept of original cause may only be
established, in the present case, on two conditions: first, that of its
appearance ex nihilo in the chain of events and, second, that of its
effectiveness as far as the actual genesis of the events is concerned. In
order to satisfy these requirements, it would have been necessary for the
wrong committed by Hungary to have borne no relation whatsoever to any
conduct on the part of Czechoslovakia. But, in the present case, given the
chaotic nature of the relations between the two Parties in dispute, it is
difficult to seek to introduce a more or less undifferentiated mechanistic
analysis into this discussion. Contrary to the requirements inherent in the
law of liability in domestic law, the case is not about finding at all costs
who is liable, nor about making a finding of unlawfulness per se which is
not the cause of the sequence of respective actions of the Parties. Evidence
of unlawfulness is not sufficient to establish a link of direct causality
between the Hungarian conduct and the Czechoslovak reaction.
The historical and technical details show that projects for regulating the
Danube in that portion of the river's course had been envisaged since the
end of the Second World War. In the framework of such programmes of
co-operation, each party was pursuing objectives which were not necessarily
the same of those of its partner. Thus the Czech and Slovak Federal Republic
expressed a particular interest in hydroelectricity and [p173] in
navigation. The Nagymaros works were designed to be put into operation when
the installations at Gabcikovo were operating in peak-load time. And it is
apparent from the various earlier projects that, for many a year, the
possibility of constructing the works on Czechoslovak territory alone had
not been ruled out. Those details, relating to the context of both the
Project and the present dispute, explain what was at stake, without however
constituting a justification of the Hungarian decision. From the legal point
of view, the conclusion of the Budapest Treaty renders these discussions
nugatory. The only certainty stems from the fact that the Hungarian decision
to suspend took shape in an atmosphere of much suspicion and mistrust and
was a well-premeditated act.
In my opinion, the Hungarian decision did not constitute the cause, but the
ground or motive taken into consideration by the Czech and Slovak Federal
Republic in order to justify its subsequent conduct. Can it for all that, in
law, be considered as being the source from which the subsequent wrongs
came into being? A reply to that question must take into account the
strategy of raising the stakes in the context of the pressure/ negotiations
game. First of all, the factual chronology is unfavourable to Hungary if one
considers the sequence of events in terms of linear succession. However,
with the passage of time, the links of causality with the initial wrong fade
and weaken whereas the conduct of each side escalates more and more. Thus,
in the present case, there was reason to determine the causal nature of the
unlawfulness inherent in the Hungarian conduct described in paragraph 1 A of
the dispositif. If we consider the question which forms the subject-matter
of the second paragraph in terms of the relations between the two Parties,
it is the facts and wrongs seen as a whole that should be taken into
consideration; it is therefore difficult, in the absence of a presumption of
responsibility, to consider the unlawfulness of the commissioning of
Variant C as the direct consequence of the Hungarian decision of 1989. It
seemed necessary to me however to dispose of this preliminary question as a
matter of logic; that being so, the intersection of wrongs was the crux of
the second question.
The inconsistent nature of the conclusion reached by the Court, in operative
paragraphs IB and 1C (para. 155), shows, if it needs demonstrating, the
artificial nature of the distinction between "proceeding to the provisional
solution" and its "putting it into operation". This distinction might be
justified if the theory of approximate application or that of damage
limitation were based on treaty law. The Court rightly rejected the
arguments based on these principles, which may find their place in
constructs of domestic law within a system of presumption of liability.
Once, though, the Court has accepted the intersecting nature of the wrongs
committed by the Parties, the distinction between the construction of
Variant C on the one hand and putting it into operation on the other is
purely artificial in the context of the pressure/negotiations relationship
game. [p174]
The divisibility of Czechoslovakia's conduct according to the Judgment is
said to be based on the use in the Special Agreement of the copulative
conjunction "and" in order to express the link between the two stages of
process of accomplishment of its decision. However, the link ensured by the
conjunction, from a grammatical point of view, is characterized by the fact
that the elements of the process are of the same nature, and also by the
immediacy of their succession. In those circumstances, contrary to what the
majority of the Court presumes, and the consistent attitude of
Czechoslovakia bears this out, there has never been, in its plans, any
question of not putting Variant C into operation once the decision to
proceed to it had been taken. A continuing act seems the most relevant
characterization, both as regards the general sequence of events (see above)
and the overt behaviour of Czechoslovakia and then of Slovakia.
For in order that the distinction made in the Judgment be founded, there
must actually exist in advance an equipollence between "proceeding to the
provisional solution" and "putting it into operation". That is in order to
avoid one of the elements being absorbed by the other. However, the
Czechoslovak decision is neither meaningful nor significant unless the
subsequent course of events leads to a single result: the putting into
operation of Variant C, the so-called "provisional solution".
On consideration, and contrary to the analysis in the Judgment, the
unlawfulness of Czechoslovakia's conduct cannot be limited to the mere
putting into operation of the "provisional solution" because of the status
of the Danube in international law. I cannot subscribe to the idea that
territorial sovereignty confers on a State the faculty of altering
unilaterally the use of an international watercourse whose legal regime has
formed the subject-matter of an international treaty. In these
circumstances, it is not the construction or the non-construction of works
on the territory of one or the other Party per se nor solely the diversion
of the course of the Danube which constitute the only breaches of the
obligations under the 1977 Treaty. The fact of substituting and
implementing a national project in place of a joint international project is
a serious contravention of the provisions of the Treaty of Budapest.
Limiting the sanction for unlawfulness to the factual consequences of the
breach of international obligations but not to the breach itself represents
"a precedent with disturbing implications for treaty relations and the
integrity of the rule pacta sunt servanda" (see Judgment, para. 114). These
considerations explain the validity of the proposition in Article 25,
paragraph 1, of the International Law Commission Draft Articles on State
Responsibility, on unlawfulness of a continuing character:
"The breach of an international obligation by an act of the State having a
continuing character occurs at the moment when that act begins.
Nevertheless, the time of commission of the breach extends over the entire
period during which the act continues and remains not in conformity with the
international obligation." [p175]
In the final analysis, how can one justify the unlawfulness of Variant C
solely in terms of its being put into operation, when there is no legal
foundation in the 1977 Treaty for this solution, in the opinion of the
Judgment, once the Court has dismissed the arguments of approximate
application and obligation to limit damage, as well as the proportionality
between the wrong committed by Hungary and the commissioning of Variant C?
(Signed) Raymond RANJEVA.
[p176]
DISSENTING OPINION OF JUDGE HERCZEGH
[ Translation J
I am most regretfully unable to share the position of the majority of
Members of the Court as expressed in this Judgment, and I find myself
obliged to draft a dissenting opinion to set out the facts and reasons which
explain the different conclusions I have reached.
The subject of the dispute between Hungary and Czechoslovakia, and later
Hungary and Slovakia, was the construction of a system of locks on the
Danube (hereinafter called "the G/N Project") intended to enhance "the broad
utilization of the natural resources of the Bratislava-Budapest section of
the Danube . . .". According to the Treaty concluded in Budapest on 16
September 1977,
"the joint utilization of the Hungarian-Czechoslovak section of the Danube
will. . . significantly contribute to bringing about the socialist
integration of the States members of the Council for Mutual Economic
Co-operation . . .".
The Project seemed in other respects likely to have a considerable impact on
the environment. The Court, called upon by the Parties to resolve the
dispute, was thus confronted with not only the implementation of the law of
treaties, but also the problems raised by protection of the environment,
and with questions concerning the international responsibility of States.
In its Advisory Opinion given to the General Assembly on 8 July 1996 on the
Legality of the Threat or Use of Nuclear Weapons, the Court declared that it
recognized
"that 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." (1.
C.J.Reports 1996, pp. 241-242, para. 29.)
This Judgment of the Court cites that passage and stresses the importance
of respecting the environment, but then does not take due account of the
application of that principle to the construction and operation of the G/N
Project.
The Court only grants a very modest place to ecological considerations [p177] in the "declaratory" part of its Judgment. As a judicial organ, the
Court was admittedly not empowered to decide scientific questions touching
on biology, hydrology, and so on, or questions of a technical type which
arose out of the G/N Project; but it could and even should have ruled on
the legal consequences of certain facts alleged by one Party and either
admitted or not addressed by the other, in order to assess their respective
conduct in this case.
Before determining the facts which could thus be pertinent, I must make a
few preliminary observations on the characteristics of the G/N Project. The
Project was an audacious scheme, in a class of its own and the first to be
designed as a system of locks for the exploitation in peak mode of the
hydroelectric resources of the Danube. The locks built on the German and
Austrian sections of the Danube do not operate in peak mode; moreover, the
dams on the Rhine operating in that mode are much more modest works.
That mode of operation involved and involves risks which were not altogether
unknown to those responsible for drawing up the plans for the G/N Project,
but its designers reasoned within the confines of what was known in the
1960s and 1970s and that way of thinking is today con-sidered outmoded,
and rightly so. They accordingly minimized the risks, whilst at the same
time having an imperfect understanding of the damage they could cause, and
therefore of the possible solutions. To give just one example, the fact that
the Joint Contractual Plan only provided for a discharge of 50 cubic metres
per second in the old channel of the Danube during the months of March to
November shows clearly that the most basic ecological considerations were
not accorded the weight they deserved. The original Project was criticized
not only by the Hungarian party, but also by the Czechoslovak leaders.
Paragraph 38 of the Judgment quotes the Czechoslovak President, Mr. Havel,
as saying that the G/N Project was a "totalitarian, gigomaniac monument
which is against nature" (Counter-Memorial of Hungary, Vol. 3, Ann. 88),
together with part of a statement made by the Czechoslovak Minister for the
Environment, Mr. Vavrousek, for whom "the G/N Project was an old, obsolete
one", and who went on to say that "there is no doubt that if we could turn
the course of time, we would never approve the original project but that
even though there were "many reasons to change, modify the Treaty ... it
[was] not acceptable to cancel the Treaty . . . and negotiate later on"
(Memorial of Slovakia, Vol. IV, Ann. 97, pp. 248-249).
Given the declarations of the Czechoslovak leaders, it is somewhat
surprising that the Court adopted the approach that the ecological risks
listed by Hungary in 1989 were already known when the Treaty was concluded
but remained uncertain, and the provisions of Articles 15, 19 and 20 covered
the protection of the natural environment, water quality, and [p178] so
forth, whereas it could and should have concerned itself with the problems
which the interpretation and implementation of these provisions might raise
in the field. However, the Judgment merely mentions the aims of the Project
and the advantages it was presumed to offer.
Unfortunately, that picture is a far cry from reality. It is difficult to
see otherwise why the Minister, Mr. Vavrousek, would have considered the G/N
Project contained in the 1977 Treaty to be "old", of an "obsolete"
character, and needing to be "changed" or "modified", and so on. Moreover,
the key question is not whether the Treaty contained certain provisions
protecting the environment, but whether those provisions had been
effectively implemented during the construction of the G/N Project.
Since the negotiations which led to the conclusion of the 1977 Treaty,
ecological knowledge has become considerably broader and deeper whilst
international environmental law has also progressed. In its Advisory Opinion
on the Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), the Court found that:
"Moreover, an international instrument has to be interpreted and applied
within the framework of the entire legal system prevailing at the time of
the interpretation. In the domain to which the present proceedings relate,
the last fifty years . . . have brought important developments ... In this
domain, as elsewhere, the corpus juris gentium has been considerably
enriched, and this the Court, if it is faithfully to discharge its
functions, may not ignore." (I.C.J. Reports 1971, pp. 31-32, para. 53.)
What held good for the Mandate system of the League of Nations also holds
good for the duty to safeguard the natural environment, the only difference
being that instead of a 50-year period, we have to look at a 20-year period
in this case. Under Article 19 of the 1977 Treaty,
"The Contracting Parties shall, through the means specified in the joint
contractual plan, ensure compliance with the obligations for the protection
of nature arising in connection with the construction and operation of the
System of Locks."
The original Hungarian wording uses, instead of the word "obligations", the
word "requirements", but that does not in any way affect its essential
scope: the protection of nature was to be ensured in a manner commensurate
with the requirements of the day, that is to say, in 1989, in accordance
with the requirements of 1989, and not those that might have prevailed in
1977. Likewise, and in so far as it is accepted, as it is by the majority of
the Members of the Court, that the Treaty still applies as it stands, the
same would hold good for 1997, and it is in accordance with [p179]
present-day requirements that the scope of the Parties' treaty obligations
with regard to protection of the environment should be defined. The Court,
in the "prescriptive" part of its Judgment, states:
"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."
(Para. 140.)
It is regrettable that the Court did not follow this principle even in the
reasoning which led to its reply to the first question put to it in the
Special Agreement.
To have perceived the shortcomings of a project to avoid using the word
"error" and to recognize that one is the source of those shortcomings are
two very different things which may sometimes be very far apart. The
principal argument put forward, in 1991, by the Czechoslovak party in favour
of the G/N Project, was based on the fact that the Project was almost
completed. By the acceleration of the works laid down in the Protocol of 6
February 1989, certain Hungarian leaders wanted to do the same thing to
claim that a point of no return had been reached in order to deal with
increasing opposition and resistance. Political changes during that year
prevented them from achieving that aim.
The crucial problem posed by the G/N Project was that of peak mode
operation, for which the 1977 Treaty makes no provision. Slovakia confirmed
repeatedly that there was no agreement between the contracting parties with
regard to the peak mode operation of the system of locks. It maintained that
the operational rules relating to peak mode operation had still not been
established at the start of 1989, and that without the agreement and
co-operation of the parties no plan to operate in peak mode could be
implemented. In its Reply (Vol. II, pp. 8-9), Slovakia states "the Gabcikovo
plant would have operated at a level of maximum peak mode operation that was
never agreed between the Treaty parties" and "Czechoslovakia offered its
pledge to limit or exclude [that mode of operation] in October 1989 if
justified by subsequent studies" (emphasis added). A few lines further on,
it reaffirms that:
"no agreed method or level of peak mode operation had been reached prior to
1989 . . . The focus on peak mode operation here is therefore misplaced, for
it assumes a mode of operation that was neither agreed nor certain to be
adopted in any form." (Ibid., p. 9.) [p180]
It is the Joint Contractual Plan which describes peak mode operation, thus
demonstrating that the 1977 Treaty and the Joint Contractual Plan do not
have the same legal character since Slovakia would not otherwise have denied
the existence of an agreement as to mode of operation.
It is true that the Preamble to the Special Agreement mentions the Treaty on
the Construction and Operation of the Gabcikovo-Nagymaros Barrage System and
related instruments ("the Treaty") but, despite the linking of the "related
instruments" to the term treaty, it is absolutely incorrect to conclude that
all those instruments including the Joint Contractual Plan are of the
same nature and carry the same legal weight as the Treaty itself.
Moreover, the Special Agreement does not define the concept of "related
instruments" at all and a list of the instruments was not appended to the
Special Agreement or to the other documents lodged at the Court by the
Parties, for the simple reason that they disagreed as to the material
content of that expression. The references made by the Parties to the
"related instruments", both in the written proceedings and in the hearings,
were vague, ambiguous and often contradictory. Since the file submitted to
the Court was insufficient to clarify what was meant by that expression, the
Court should have avoided using it in its reasoning and especially in the
operative part. Unfortunately, it did not follow this course, and this was
detrimental to the necessary precision of its Judgment.
To return to the problem posed by the mode of operation of the system of
locks, the above statements by the Slovak party show, moreover, that
Czechoslovakia itself had certain doubts and certain reservations about the
peak mode of operation. However, Slovakia emphasized during the hearings
that the Parties had to resolve the problem of defining "the modalities of
(and limitations to) the production of electricity in peak mode" (CR97/15,
p. 50, Pellet), yet without specifying the treaty basis of such a claim.
In any event there was an obvious contradiction between a project designed
for peak mode operation and the absence of an agreement between the parties
as to this mode of operation. The Court did not attempt to resolve that
contradiction, but was unable to remain entirely silent as to the doubts it
had regarding that mode of operation. In paragraph 134 of the Judgment, the
Court concluded that there had been an "effective discarding by both Parties
of peak power operation" (emphasis added). In paragraph 138, it states that
Czechoslovakia "was willing to consider a limitation or even exclusion of
operation" in peak power mode.
Between 1977 and 1989 Hungarian experts became aware of the ecological
dangers potentially caused not only by the peak mode operation of the system
of locks, but also by the construction of certain works of the system which
had been designed with a view to such a mode of operation : more
particularly the Nagymaros dam and the storage reservoir at [p181]
Dunakiliti as initially designed, that is, with an enormous surface area of
60 square kilometres, neither construction being indispensable or even of
use if the Gabcikovo power plant were to be operated in run-of-the-river
mode. Slovakia recognizes that the Nagymaros dam was intended, "first, to
compensate fluctuating water levels caused by peak operation of Gabcikovo"
(Memorial of Slovakia, para. 2.51), that "One of the functions of the
Nagymaros section was to utilize the Danube waters so as to permit peak
power production at Gabcikovo" (ibid., para. 7.13) or, to reiterate the
words used by the agent of Slovakia during the hearings, that "to produce
peak power electricity at Gabcikovo required the existence of the Nagymaros
weir" (CR 97/7, p. 15, Tomka).
It is therefore difficult to understand why Czechoslovakia insisted with
some vigour that Hungary had to continue with the construction of the
Nagymaros dam when its primary purpose was to allow peak mode operation of
the Gabcikovo power station if the mode of operation, as Slovakia
expressly concedes, was never the subject of an agreement between the
Parties. There was therefore no legal obstacle to prevent the G/N Project
from being modified for adaptation to a less dangerous mode of operation.
Slovakia, for its part, has repeatedly stated that
"The 1977 Treaty and the international agreements linked to it were highly
flexible . . . there were continuing studies of problems emerging during
construction, which led to modifications related, inter alia, to the
environment and water quality." (CR97/7, p. 14, Tomka.)
In that case, the danger which the construction of the Nagymaros dam posed
for Budapest's drinking water supply a point I shall return to later was
a sufficient ground for amending the 1977 Treaty and the international
agreements linked to it, as Hungary suggested in its Note Verbale dated 3
November 1989 (Memorial of Hungary, Vol. 4, Ann. 29).
Before replying to the question "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 Gabcikovo Project" for which it was
responsible, it should be noted that that question covers several actions
taken by the Hungarian Government which must be assessed individually. Those
actions are the following:
in May 1989, the suspension of work on the Nagymaros dam;
in July 1989, the suspension of work at Dunakiliti;
in October 1989, the abandonment of work at Nagymaros.
At the same time, it should be noted that, towards the end of 1991, Hungary
carried on with and even completed the work relating to the [p182]
downstream section of the bypass canal, on Czechoslovakian territory,
between Gabcikovo and Szap, for which it was responsible under Ar-ticle 5,
paragraph 5(b) (4), of the 1977 Treaty, and that it did so because it did
not consider that part of the G/N Project to threaten the environment. That
is symptomatic of its attitude towards the 1977 Treaty. The allegation that
Hungary repudiated or rejected the 1977 Treaty as such in 1989 or in 1990 is
therefore groundless.
In order to justify its conduct, Hungary put forward various grounds and
these included, inter alia, a state of necessity, the main and decisive
reason. A state of necessity does not have the effect of extinguishing or
suspending a treaty, but it is a circumstance exonerating the State from the
responsibility it incurs in committing an act not in conformity with its
international obligations.
Article 33, paragraph 1, of the Draft of the International Law Commission
on the International Responsibility of States, considered as expressing the
rules of customary international law and cited by the Court in its Judgment,
stipulates the following:
"1. A state of necessity may not be invoked by a State as a ground for
precluding the wrongfulness of an act of that State not in conformity with
an international obligation of the State unless:
(a) the act was the only means of safeguarding an essential interest of the
State against a grave and imminent peril; and
(b) the act did not seriously impair an essential interest of the State
towards which the obligation existed."
The state of necessity is "the situation of a State" according to the
International Law Commission Report
"whose sole means of safeguarding an essential interest threatened by a
grave and imminent peril is to adopt conduct not in conformity with what is
required of it by an international obligation to another State" (Yearbook of
the International Law Commission, 1980, Vol. II, Part 2, p. 34, para. 1).
The "deliberate nature of the conduct, the intentional aspect of its failure
to conform with the international obligation" according to the Report
"are not only undeniable but in some sense logically inherent in the
justification alleged; invoking a state of necessity implies perfect
awareness of having deliberately chosen to act in a manner not in conformity
with an international obligation" (ibid., p. 34, para. 3).
State of necessity is a very narrow concept in general international law. In
the course of the International Law Commission's work on the codification
of State responsibility, the great majority of its members were of the view
"that any possibility of the notion of state of necessity being [p183]
applied where it is really dangerous must certainly be prevented, but that
this should not be so in cases where it is and will continue to be [a]
useful . . ." "The imperative need for compliance with the law must not be
allowed to result in situations so aptly characterized by the maxim summum
jus summa injuria" (Yearbook of the International Law Commission, 1980,
Vol. II, Part 2, p. 49, para. 31). Thus the International Law Commission,
expressing an almost general approach and conviction, stressed that the
situation had to involve an "essential" interest of the State in question.
That "essential" character naturally depends upon the circumstances in which
a State finds itself, which cannot be denned beforehand, in the abstract.
The peril threatening the essential interest must be extremely grave and
imminent, and it must have been avertable only by means conflicting with an
international obligation. In a state of necessity, there is a
"grave danger to the existence of the State itself, to its political or
economic survival, the maintenance of conditions in which its essential
services can function, the keeping of its internal peace, the survival of
part of its population, the ecological preservation of all or some of its
territory . . ." (ibid., p. 35, para. 3).
Invoking a state of necessity is not a way to terminate treaty obligations
lawfully, that is, to terminate an international treaty. However, the party
in question will be released from the consequences of the violation of
international law, since it acted in a state of necessity. The state of
necessity is a circumstance which exonerates from responsibility: in other
words, it exonerates the author of the unlawful act from that international
responsibility. Hence the problem has not been resolved and cannot be
resolved by the law of treaties, but pertains to the provisions of the
international law of State responsibility.
The question is therefore whether the criteria for a state of necessity are
fulfilled in relation to the construction of the Nagymaros dam? It should be
noted in this context that more than 500 bank-filtered wells which satisfy
about two-thirds of Budapest's drinking water requirements are situated on
the island of Szentendre, downstream of Nagymaros. The water from those
wells is fit for consumption without any purification procedure being
necessary. The provision oj drinking water for the Hungarian capital
which has two million inhabitants (that is, one-fifth of the country's
population) , qualitatively and quantitatively, certainly constitutes an
essential interest for Hungary. Hungary had to protect the branches of the
Danube, on either side of the island, against any erosion endangering the
production of drinking water from those wells.
The dredging of the bed of the Danube in the two branches around the island
of Szentendre as laid down by Article 1, paragraph 3 (c), of the 1977
Treaty had already caused serious damage. After the water services of the
Hungarian capital had raised the alarm, those works
[p184] were not only suspended, but abandoned in 1980, resulting in a
natural improvement of the state of the river bed. Since the construction of
the Nagymaros dam would have had the same harmful effects downstream as
those of the dredging, and in particular the erosion of the river bed, that
construction constituted a grave peril.
The expression "grave peril" refers to the existence of a strong likelihood
that detrimental effects and very extensive damage will occur. It is true
that the damage in connection with Nagymaros would not occur overnight, but
after a lapse of time. The Judgment cites the International Law Commission's
commentary to the effect that the "extremely grave and imminent" peril must
"have been a threat to the interest at the actual time". That does not rule
out, the Court adds,
"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" (para. 54).
Unfortunately, the Court has not drawn the obvious conclusion from that
definition as far as the construction of the Nagymaros dam is concerned.
There could be no doubt that the erosion of the bed of the Danube downstream
of Nagymaros would be the certain and inevitable consequence of the dam.
These were not "uncertainties", as could be claimed in relation to other
ecological consequences of the G/N Project, but certainties as to the
foreseeable effects of the construction of the dam. If the Court did not
want, in this respect, to rely solely on Hungary's arguments, it could have
used the information provided by Slovakia. According to Slovakia,
"the construction of water projects and hydropower plants upstream in
Germany and Austria had the effect of dramatically reducing the quantities
of sediments transported downstream to the Slovak-Hungarian section . . .
dredging coupled with erosion began to exceed the annual deposition of
sediment from upstream, the Danube river bed started to deteriorate in the
region between Devin Gate and Sap (Palkovicovo) and the erosion processes
caused by 'hungry water' commenced." (Memorial of Slovakia, para. 1.42.)
The Memorial of Slovakia cites the Report of 2 November 1993 of the European
Communities Working Group of Experts that:
"The main channel has been significantly lowered due to erosion caused by a
combination of several man-made factors:
dam construction in Austria in the last decades resulting in a sediment
(in particular bed load) deficit . . ." (Ibid., para. 1.57.)
The Nagymaros dam could only have had the same effects, downstream, on the
bed of the Danube, as the dams built in Austria had had [p185] on the
sector of the Slovak capital: the erosion of the river bed. As a result of
such erosion, the production of drinking water from the bank-filtered wells
on the banks of the island of Szentendre could only diminish, and the
quality deteriorate. Certus an incertus quando. It was impossible to
predict exactly that that diminution would amount to such-and-such a
percentage of the former production of those wells, and whether it would
occur over five or ten years, but it was certain that the quantity of water
would diminish and its quality deteriorate in the relatively near future.
The imminence of the peril in question depended on the construction of the
Nagymaros dam: without the dam, there would be no grave peril, either
imminent or long-term; once the dam had been constructed, it would no longer
have been appropriate to speak of a peril, but rather of grave and permanent
damage occurring for so long as the dam existed a dam built by the very
State whose population and territory would have been its victims. To claim
that the suspension of works on the Nagymaros dam was not justified by a
state of necessity, since the peril was not imminent, means in reality that
Hungary should have completed the dam and waited for the bank-filtered wells
on the island of Szentendre to dry out because of the erosion of the river
bed and for the supply of drinking water to the Hungarian capital to be
called critically into question. The Court, in deciding the case, ought to
have taken account of the damage that would have occurred if the Party in
question had not taken the necessary preventive measures. States are under
an obligation of prevention and not merely of reparation.
Slovakia did not deny that the effectiveness of the wells would be reduced,
but it claimed that they would not be entirely lost and suggested measures
designed to deal with such a situation, but without taking account of the
cost of such measures (see Slovakia's reply, dated 7 May 1997, to the
question asked by the Vice-President (CR 97/15, p. 64). Indeed, the surface
waters could have been purified and rendered fit for human consumption;
however, that would have been enormously expensive in view of the
requirements of a city of two million inhabitants. The other solution
proposed, namely the discharging of large quantities of gravel into the
river bed, did not seem very realistic: both branches of the Danube around
the island of Szentendre, taken together, are 1,000 metres wide and 70
kilometres long. How much gravel would therefore have been necessary to
counteract the erosion of the river bed caused by the Nagymaros dam? The
third solution raised, the construction of a second dam downstream of
Budapest, would have cost no less and, in the end, a third dam would have
been needed, at Paks or at Mohacs, not to mention the potential consequences
of such a series of dams on the Yugoslav sector of the Danube. In theory,
all three solutions were possible the argument of impossibility does not
stand up but the implementation of these measures would have radically
transformed the scope of Hungary's remaining obligations under the Treaty.
Such a solution denotes a fundamental change of circumstances which may be
relied [p186] upon as a ground for terminating the Treaty, as prescribed in
Article 62, paragraph 1 (b), of the 1969 Vienna Convention on the Law of
Treaties. The Court expressed itself as follows in its Judgment of 2
February 1973 in the case concerning Fisheries Jurisdiction (United Kingdom
v. Iceland) :
"International law admits that a fundamental change in the circumstances
which determined the parties to accept a treaty, if it has resulted in a
radical transformation of the extent of the obligations imposed by it, may,
under certain conditions, afford the party affected a ground for invoking
the termination or suspension of the treaty." (I.C.J. Reports 1973, p. 18,
para. 36.)
Instead of taking into consideration the consequence of the changes thus
operated on the scope of Hungary's remaining obligations under the Treaty,
the Court, in this Judgment, merely states that "the purification of the
river water, like the other measures envisaged, clearly would have been a
more costly technique" (para. 55). The costs of discharging gravel into the
river and those of constructing a second dam were not given serious
consideration, any more than was the radical transformation of the scope of
the obligations assumed.
As far as a fundamental change in circumstances is concerned, it should be
noted that he who can do the most can do the least. Hungary did not rely on
the Treaty having lapsed or on the suspension of the Treaty as such, but it
did suspend performance of one of its obligations the construction of the
Nagymaros dam on the basis of a state of necessity, a ground for setting
aside unlawfulness resulting from the failure to implement a treaty
provision. In this case, it was a matter of safeguarding an essential
interest against a peril which was grave and imminent that is, certain
and inevitable. The taking of other measures to counteract that grave peril
would have radically transformed the scope of the obligations to be
performed by Hungary under the Treaty.
Since the Court has not adopted a position on the question whether the
suspension and abandonment of the construction at Nagymaros impaired an
essential interest of the other Party, I shall merely observe that the
Gabcikovo power plant operates normally today, as a run-of-the-river power
station, without a dam at Nagymaros, where the Danube flows naturally in its
bed. Boats use the bypass canal, so that navigation has not been affected,
and there is no danger of flooding which could have been caused by the
present state of the works. Accordingly, the sus-pension and subsequent
abandonment of the construction works has not impaired an essential interest
of the other contracting party.
However, the Court finds as follows:
"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 [p187] order to
justify its failure to comply with its treaty obligations, as it had helped,
by act or omission to bring it about" (para. 57).
That is a surprising conclusion, implying that Hungary should have finished
the construction of the Nagymaros dam, which in reality would have helped to
aggravate the state of necessity already existing as a result of the start
of the works, by causing irreparable damage to the drinking water supply to
its capital city. In that case, it would have had only itself to blame,
since it alone would have been the cause of the catastrophic situation that
would have ensued.
The suspension of the works at Dunakiliti is to be seen in a somewhat
different context. The suspension of those works was intended to safeguard
an essential interest of Hungary, that is, principally the protection of the
aquifer situated below the Szigetkoz and the surrounding area. The risk of
damage to the aquifer arose from the size of the storage reservoir at
Dunakiliti (oversized were Gabcikovo to be operated as a run-of-the-river
power station) and from the polluting effect of its stagnant waters. The
national report of the Czech and Slovak Republic to the Rio Conference
showed that Gabcikovo constituted a threat to the environment:
"Example of disturbance of the unique water and rural ecological systems due
to large water works are the reservoirs in Nove Mlyny in Czech Republic and
the Gabcikovo water works on the Danube river in the Slovak Republic. In the
first example the mead forest with its unique flora and fauna were seriously
damaged, in the second example, the huge and unique volume of underground
water is threatened and the systems of mead forests and river tributaries
are drastically affected." (P. 92.) (See file of documents relating to the
second round of oral arguments of Hungary, 10-11 April 1997, Ann. III-5.)
The suspension of the works at Dunakiliti certainly impaired the interests
of Czechoslovakia inasmuch as they related to the commissioning of the
almost completed Gabcikovo power plant; the dykes which were already
constructed had to be protected, and a supply of water from the Danube was
essential in order to operate the plant even as a run-of-the-river power
station. There was therefore a conflict of interests between the two States.
Czechoslovakia could rely on the provisions of the Treaty which the two
Parties considered to be valid, whereas Hungary referred to the ecological
damage which would occur, as far as Dunakiliti unlike Nagymaros was
concerned, in the more distant future. However, the interests of
Czechoslovakia were of a financial nature, theoretically easy to
compensate, whereas those of Hungary related to the safe-guarding of its
ecological balance and the difficult and uncertain struggle against damage
to its environment. In dubio pro natura.
The G/N Project had other consequences for the environment, the details of
which were discussed at length by the Parties, which presented [p188] them
in diametrically opposed ways. That detailed and conflicting presentation
did not ease the Court's task and made it harder for it to determine the
facts not denied or challenged by one or the other of the Parties.
The Court held that the state of necessity, as a ground for precluding the
wrongfulness of an act not in conformity with an international obligation,
can only be accepted on an exceptional basis and, referring to the relevant
International Law Commission Report, added that
"the state of necessity can only be invoked under certain strictly defined
conditions which must be cumulatively satisfied; and the State concerned is
not the sole judge of whether those conditions have been met'' (para. 51).
I entirely concur with that approach, but I cannot accept the conclusions
drawn in this case by the Court. It has concluded that, with respect to both
Nagymaros and Gabcikovo,
"the perils invoked by Hungary, without prejudging their possible gravity,
were not sufficiently established in 1989, nor were they 'imminent'; and . .
. 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" (para. 57).
This is absolutely not the case. As far as Hungary was concerned, what was
at stake was the safeguarding of an essential interest against a peril which
was grave and imminent, that is to say certain and inevitable, and any
measures taken to counteract that peril would have radically trans-formed
the scope of the obligations to be performed under the Treaty. By suspending
and abandoning the works at Nagymaros, Hungary has not impaired an essential
interest of Czechoslovakia, and it is precisely by constructing the dam at
Nagymaros that it would have contributed to an unequalled state of necessity
and to a situation catastrophic for its capital. The existence of the peril
alleged by Hungary was recognized at least in part by the other Party,
and Hungary therefore did not act in an arbitrary manner.
The first question asked in the Special Agreement was whether the Republic
of Hungary was entitled to suspend certain works for which it was
responsible under the 1977 Treaty. The Vienna Convention on the Law of
Treaties is silent as to the state of necessity. However, international law
and particularly the law of responsibility recognizes it. The state of
necessity exists not only in theory, but also in reality. In the present
case, even the strictest criteria applied cumulatively prove that, as far as
the construction of the Nagymaros dam is concerned, Hungary was entitled to
rely on that ground precluding its responsibility for not having fulfilled
one of its obligations under the 1977 Treaty. It was therefore entitled to
suspend and subsequently abandon the works at Nagymaros. As far as the
suspension of the works at Dunakiliti is concerned, the existence of a state
of necessity is debatable, but Hungary's anxieties [p189] regarding the
ecological risks occasioned by the reservoir and partially recognized by
Czechoslovakia itself should not have been taken lightly, and still less
categorically refuted. That latter measure of suspension was undoubtedly
provisional (the installations at Dunakiliti have been maintained in good
condition by Hungary up to the present day). Although the circumstances
prevailing on that site do not entirely relieve Hungary of its
responsibility, they do nonetheless provide some mitigation which the Court
should have taken into account.
The Court, whilst refusing to accept that Hungary was entitled to suspend
and subsequently abandon, in 1989, the works on the G/N Project relating to
Nagymaros, recognizes albeit indirectly that Hungary's position is well
founded, when it manages to assert, in the "prescriptive" part of its
Judgment, that the Nagymaros dam should not be built: "with the effective
discarding by both Parties of peak power operation, there is no longer any
point in building it" (para. 134); "the construction of the Nagymaros dam
would have become pointless" (para. 138). Moreover, it must be acknowledged
that the ecological considerations that now weigh against the dam are the
same as those holding in 1989. If it has finally been concluded that the dam
should not have been built in 1997, this is because in reality it should not
have been built in 1989, either.
The dispute between the two Parties is very much the result of their
geographical situations. The harmonization of the interests of the
countries upstream and downstream is the crucial problem of the law
governing international watercourses. During the work done by the United
Nations on the Draft Convention on the Law of the Non-Navigational Uses of
International Watercourses, the upstream countries complained that the
provisions of the draft limited their right to use and develop the resources
of those watercourses, whereas the downstream countries criticized the
provisions of the draft by maintaining that they failed to protect their
interests adequately and even allowed significant damage to be inflicted
upon them. As far as the course of the Danube is concerned, Slovakia is an
upstream country and Hungary a downstream country. In this Judgment the
Court should have maintained a balance, admittedly hard to achieve, between
the interests of the upstream and the downstream countries, and have
ensured that harmonious progress in enhancement of the natural resources
would be carefully organized to prevent the long-term disadvantages from
outweighing the immediate advantages. Unfortunately, in the present case, it
has not succeeded in doing so.
I have found it necessary to stress this question since the position to be
taken, in particular, on whether Hungary was entitled to suspend and
subsequently abandon the works at Nagymaros, and to suspend those at
Dunakiliti, to a large extent determines the replies, or at least the
reason-ing, for the questions which follow.
***[p190]
I now come to the second question asked in the Special Agreement, that is,
"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 . . .".
Since Slovakia has consistently maintained that the 1977 Treaty was
extremely flexible and essentially open-ended, the contracting parties were
entitled to propose that it be adapted to the requirements of environmental
protection having regard to new information and experience gained and
even modified, in order that the Treaty might match those requirements.. The
abandonment of the construction of the Nagy-maros dam, whose main function
would have been to allow the use of the Gabcikovo power plant in peak mode
(a use for which there had been no prior agreement between the parties), has
not called in question the accomplishment of the object and purpose of the
Treaty.
In September 1991, Mr. Vavrousek, the Czech Minister for the Environment,
declared to the Hungarian Parliament:
"I believe there is the only practicable way, a traditional one, that is
being used not only in case of international treaties, but also when new
acts are adopted. It simply means to prepare a new treaty and to incorporate
into the last paragraph provisions that would cancel obsolete parts of the
1977 Treaty." (Memorial of Slovakia, Vol. IV, Ann. 97, p. 249.)
In other words, that would have involved the conclusion of a treaty taking
the place of the old one, by modifying or abrogating those provisions that
are out of date.
Between Mr. Vavrousek's visit to Budapest and the recourse to the
"provisional solution" in November 1991, only two months elapsed. That is an
extremely brief interval when one considers that the 1977 Treaty took two
decades to prepare.
The Report of the Special Rapporteur on the Law on the Non-Navigational
Uses of International Watercourses noted the importance of the parties' duty
to negotiate by citing the Judgment delivered by the Court in the North Sea
Continental Shelf cases. That obligation flows from the very nature of the
respective rights of the parties. It
"merely constitutes a special application of a principle which underlies
all international relations, and which is moreover recognized in Article 33
of the Charter of the United Nations . . ." (I.C.J. Reports 1969, p. 47,
para. 86).
From all these considerations, the Rapporteur concludes:
"there is a general principle of international law that requires
negotiations among States in dealing with international fresh water
resources . . . [and they also have the obligation] to negotiate the
apportionment of the waters of an international watercourse" (Year[p191]book of the International Law Commission, 1980, Vol. II, Part. 2, pp.
116-117, paras. 31 and 34).
The Articles of the Draft Convention on the Law of the Non-Navigational
Uses of International Waterways, adopted very recently by the Genera]
Assembly of the United Nations, are prompted by exactly the same principles.
The Court, in its Judgment (para. 141), reaffirms what it stated 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).
It is difficult to accept that during the two months in question, the
contracting parties to the 1977 Treaty exhausted all the possibilities of
reaching an agreement with respect to a mutually acceptable modification of
that instrument. However, the Czechoslovak Government decided to change
unilaterally the state of affairs established in the Treaty and openly to
breach it. Under the cover of a "provisional" measure, it undertook works
which related to a permanent construction and were not authorized by the
Treaty, thereby making it impossible to attain its object and purpose.
Instead of negotiating in order to reach an agreement, it opted for a
policy of "faits accomplis", having recourse to unilateral measures when
the negotiations were still under way. The opportunity of a solution agreed
between the Parties nonetheless still existed.
The Parties do not agree as to when and how the decision was taken. On 31
August 1989 the Czechoslovak Prime Minister, Mr. Adamec, raised the
possibility of "unilateral measures" to ensure the operation of the
Gabcikovo darn. In its representation of 30 October 1989, Czecho-slovakia
indicated that:
"In the event that the Republic of Hungary fail to fulfil its obligations
the Czechoslovakian party would be obliged to implement a provisional
technical solution . . . consisting in diverting, for the Gabcikovo works,
the volumes of Danube water agreed in the original treaty . . .''
In a work by Egil Lejon, copies of which were made available to Members of
the Court during the Slovak stage of the site visit, the following is
stated:
"January 17, 1991: Based on the report, the Slovak Government decides to
start preparations of the temporary solution, i.e. 'Variant C, not depending
on Hungarian co-operation, however not excluding the possibility of
returning to the Treaty conditions in the future." (Gabclkovo-Nagymaros, Old
and New Sins, 1994 (English ed., 11996), p. 86.) [p192]
Furthermore, Bratislava newspapers reported that work had actually started
on 2 April 1991.
Those various dates are only pertinent in the event that it has to be
decided whether the parties negotiated in good faith. However, the Court was
not called upon to pronounce on the Parties' responsibility for the failure
of the negotiations. In any event, it does not appear to be necessary to
proceed with an examination of the different dates relevant to the recourse
to the "provisional solution" namely Variant C since the important one
is that appearing in the Special Agreement.
Variant C differs in several respects from the original Project included in
the 1977 Treaty. Its Phase I includes nine features unrelated to the 1977
Project, and Phase II has three. Instead of the dam at Dunakiliti and its
installations, another dam and its additional installations were built, 10
kilometres upstream, in Czechoslovak territory, making it possible to
divert waters from the Danube into the bypass canal leading to Gabcikovo.
The storage reservoir at Cunovo has 30 per cent less surface area as
compared with the original Dunakiliti project, which has certainly reduced
the risks of damage that polluted water retained by its dykes could have
caused to the groundwater. However, at the same time, Variant C has enabled
the Danube to be diverted from its old bed, over a 40-kilometre section
instead of the 30 provided for in the original Project, and this has had a
significant impact on the environment of the Szigetkoz region.
It is not, however, the range of new installations that puts Variant C quite
at odds with the original Project and renders it contrary to the 1977 Treaty
and to general international law, but the fact that its construction is the
result of acts undertaken unilaterally by Czechoslovakia, without the
agreement of the directly interested party, Hungary. Variant C was built
despite repeated protests from Hungary and the fact that its operation was
going to have direct and significant consequences on the territory of
Hungary.
Slovakia claims that Hungary acquiesced in the original plan to divert the
Danube, and that it was therefore not entitled to protest against the
diversion carried out under Variant C. It is true that, under the 1977
Treaty and the related Joint Contractual Plan, the Parties were to build the
Dunakiliti reservoir and divert the Danube waters into the bypass canal
leading to Gabcikovo, and from there to Szap. However, that part of the
original Project did not deprive Hungary of control over its border waters
and did not expose the ecology of one of its regions to the effects of
uncontrollable activity by its neighbour. On the basis of the original
Project, Hungary was able to defend its own interests directly, and Variant
C deprived it of that possibility. Hungary no longer commanded the means
made available to it by Article 14, paragraph 1, of the 1977 Treaty in
respect of its ability to withdraw water from the Danube in excess of the
specified quantities, in order to protect its essential interests regarding
the environment of the Szigetkoz. Only Slovakia is in a position to with-[p193] draw water from the Danube at its own convenience. The old project,
with all its drawbacks and defects, was a joint enterprise under the joint
control of both parties. Variant C no longer had or has anything in common
between the two parties, as a result of the exclusive control exercised by
Czechoslovakia now Slovakia and was never given any kind of approval by
Hungary.
According to the well-known maxim sic utere tuo ut alienum non lae-das,
one's property may not be used in such a way as to cause significant damage
to another. Furthermore, in the present case, Czechoslovakia did not, and
Slovakia today does not use its property in an unlawful manner, but it has
appropriated and this is one of the key factors in the dispute something
which did not belong to it, namely almost all the waters of the Danube. It
follows from Article 3 of the 1976 Agreement on Boundary Waters that the
Parties to the dispute "are entitled, unless otherwise agreed, to one-half
of the natural discharge of water not augmented by technical means". The
Parties have not agreed otherwise, since there has been no agreement between
them as to Variant C. Variant C is therefore a grave breach both of the 1977
Treaty and of the 1976 Treaty on Boundary Waters.
In its Judgment the Court has rejected the doctrine of "approximate
application" on which Slovakia based its reasoning in order to justify the
construction of Variant C. I concur with the conclusion and reasoning of the
Court on that point: "In spite of having a certain external physical
similarity with the original Project, Variant C thus differed sharply from
it in its legal characteristics." (Para. 77.)
Thus, I shall not labour the point. I am moreover in agreement with what the
Court states in its Judgment as regards the justification of Variant C as a
countermeasure:
"an important consideration is that the effects of a countermeasure must be
commensurate with the injury suffered, taking account of the rights in
question.
The Court considers that Czechoslovakia, 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 with
the continuing effects of the diversion of these waters on the ecology of
the riparian area of the Szigetkoz failed to respect the proportionality
which is required by international law.
the diversion of the Danube carried out by Czechoslovakia was not a lawful
countermeasure because it was not proportionate" (paras. 85 and 87). [p194]
That observation, however, implies a need for certain additional
conclusions. We are not dealing simply with "intersecting wrongs" on the
part of both Parties to the dispute. The Court has not taken care to
distinguish between the "wrongs", and has declared, inter alia, "that both
Hungary and Czechoslovakia failed to comply with their obligations under the
1977 Treaty". It referred to the existence of "reciprocal wrongful conduct"
and "reciprocal non-compliance" (para. 114) as the consequence of "the fact
that the Treaty has not been fully implemented by either party for years"
(para. 133). What should have been done was assess how serious the unlawful
conduct attributed to both Parties was in order to make the necessary
inferences.
Hungary, by abandoning the construction of the Nagymaros dam, ruled out the
peak mode operation of the Gabcikovo power plant, a mode of operation on
which there was no prior agreement between the Parties, and, by suspending
the works at Dunakiliti, it delayed the com-missioning of the Gabcikovo
power plant. As a result, it inflicted financial losses on its partner
whereas Czechoslovakia, later Slovakia, by building on its territory a dam
unilaterally diverting the waters of the Danube, violated a provision
essential to the accomplishment of the object and purpose of the Treaty, as
laid down in Article 60, paragraph 3, of the Vienna Convention on the Law of
Treaties.
The construction of Variant C infringed several essential provisions of the
1977 Treaty: not only those to be found in Articles 15, 19 and 20, but above
all those concerning the joint use and control of the plant built under the
Treaty. The Agent of Slovakia admitted this expressly during the hearings:
"a joint operation was of the very essence of the Project under the 1977
Treaty" (CR97/7, p. 16, Tomka). Variant C therefore infringed the object and
purpose of the 1977 Treaty itself, and that serious infringement is
tantamount to a rejection of the Treaty by Czechoslovakia.
The Court, in its Advisory Opinion on the Legal Consequences for States of
the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), referred to General
Assembly resolution 2145 (XXI), when stating:
"The resolution in question is therefore to be viewed as the exercise of
the right to terminate a relationship in case of a deliberate and persistent
violation of obligations which destroys the very object and purpose of that
relationship." (I.C.J. Reports 1971, p. 47, para. 95.)
The object and purpose of the 1977 Treaty (the "socialist integration" of
the States Members of COMECON, included in its preamble, having in the event
become obsolete) consisted in joint utilization of the natural resources of
the Danube. The unilateral diversion of these waters and their exclusive
utilization by Slovakia were undoubtedly a breach of a provision essential
to the accomplishment of the object and purpose of [p195] the Treaty,
whereas the conduct of Hungary simply delayed but did not preclude the
commissioning of the power plant; Hungary did not destroy "the object and
purpose" of the treaty relationship.
I disagree with the Judgment of the Court when it concludes that
Czechoslovakia was entitled, in November 1991, to carry out Variant C (para.
88), given that:
"between November 1991 and October 1992, Czechoslovakia confined itself to
the execution, on its own territory, of the works which were necessary for
the implementation of Variant C, but which could have been abandoned if an
agreement had been reached between the parties and did not therefore
predetermine the final decision to be taken" (para. 79) .
I cannot agree with that explanation for the following reasons:
The fact that the work on Variant C was only carried out on Czechoslovak
territory does not preclude its unlawfulness. A State can quite well use its
own territory to breach its international obligations, and there are
numerous examples which could show this to be the case. The fact that the
works "could have been halted" is not a convincing argument either and, in
any event, work on Variant C was not stopped, as requested by Hungary not
even for a limited time.
The constructions of Variant C could not be considered to be "works
preparatory" to the diverting of the Danube waters. Only the design and
plans for Variant C may be so described, but not the actual recourse to that
Variant, namely the construction of works dykes, dams intended for the
diversion. The Judgment refers (in paragraph 79), to the commentary of the
International Law Commission on the Draft Articles on State Responsibility.
However, that commentary expressly mentions the following:
"With regard to the timing of any claim for cessation on the part of the
injured State or States, it is obvious that no such claim could be lawfully
put forward unless the wrongful conduct had begun, namely unless the
threshold of unlawfulness had been crossed by an allegedly wrongdoing
State's conduct." ( Yearbook of the International Law Commission, 1993,
Vol. II, Part 2, p. 57, para. 14; emphasis added.)
Since Variant C, as such, constituted a breach of the 1977 Treaty, the
unlawful conduct of Czechoslovakia began when it proceeded to the
construction of those works necessary for the unilateral diversion of the
Danube waters. It is completely arbitrary and inconsistent to separate that
conduct of Czechoslovakia unlawful in my opinion from its result
unlawful according to the Court.
Accordingly, I conclude that Czechoslovakia acted unlawfully when, in
November 1991, it embarked on the provisional solution. In other [p196]
words, it was no more entitled to do so than to commission it in October
1992.
***
I feel obliged to express a dissenting opinion in respect of the reply to
the third question put to the Court, namely: "what are the legal effects of
the notification, on 19 May 1992, of the termination of the Treaty by the
Republic of Hungary?" In other words, did the 1977 Treaty remain in force?
On 19 May 1992, the Government of Hungary notified the Government of
Czechoslovakia that it would consider the 1977 Treaty to have been
terminated as from 25 May of that same year. Diplomatic exchanges show that
it was Czechoslovakia's categoric refusal to suspend the work on Variant C,
even for a limited time, which determined the date of the Government of
Hungary's decision to terminate the Treaty. The main reason for that
decision was a wish to respond to the rejection of the Treaty by
Czechoslovakia, constituted by the construction of Variant C. Article 60 of
the Vienna Convention on the Law of Treaties authorizes a contracting party
to act in this way, as will be shown later.
The Hungarian Government took its decision on the basis of the following
considerations: (a) state of necessity; (b) impossibility of performance;
(c) fundamental change of circumstances; (d) substantial breach of the
Treaty by the other party; and, finally, (e) protection of the environment
which had become mandatory in international law.
As a preliminary, I would observe that in reality one does not often see
"pure" or unequivocal cases, in the sense that they require only one single
abstract type of legal settlement or solution. More often than not, the
legal situation in which the parties find themselves falls within the ambit
of several rules of international law at the same time.
I shall not examine all the arguments put forward by Hungary. Its main
argument to justify termination of the 1977 Treaty is clearly that the
construction of Variant C constituted a breach of that Treaty, for the
reasons given before the Court. Hungary described the grave breach
constituted by Variant C as a "repudiation" by Czechoslovakia of the Treaty,
constituting a fundamental change of circumstances (CR 97/13, p. 42,
Crawford). The aforementioned concepts and expressions reflect the situation
which prevailed in May 1992, viewed from different angles. Hungary further
contended that that situation could be characterized as a case of
impossibility of performance and, of course, that the development of
international environmental law ought to be taken into consideration in
this context.
From among these different approaches, I shall select the one which seems to
me to be the most adequate and the result of which best reflects the legal
points characterizing the situation. That will render superfluous [p197]
the examination of the other arguments put forward, which I do not think do
more than "reorganize" those points differently and less precisely.
Article 60, paragraph 1, of the Vienna Convention on the Law of Treaties
provides:
"A material breach of a bilateral treaty by one of the parties entitles the
other to invoke the breach as a ground for terminating the treaty or
suspending its operation in whole or in part."
Article 60, paragraph 3, provides as follows:
"A material breach of a treaty, for the purposes of this article, consists
in:
(a) a repudiation of the treaty not sanctioned by the present Convention;
or
(b) the violation of a provision essential to the accomplishment of the
object or purpose of the treaty."
Variant C constituted a violation of the provisions of the 1977 Treaty and
other rules of international law, since Hungary was deprived of the Danube
waters which belonged to it. As joint operation was the very essence of the
Project provided for by the Treaty, the unilateral diversion precluded the
accomplishment of the object and purpose of the Treaty. Notwithstanding the
ecological effects that the diversion of the Danube is alleged to have had,
predictably, on Hungary, the mere fact of a unilateral diversion taken on
its own was so serious that it justified termination of the Treaty. The
main and decisive reason for the termina-tion is to be found in the
construction of Variant C and its unlawfulness, which must be described as a
fundamental violation within the meaning of Article 60, paragraph 3 (b), of
the Vienna Convention. The question falls clearly within the ambit of the
law of treaties. All the other reasons put forward are merely subsidiary.
If Variant C truly constituted a grave breach, a fundamental violation of
the Treaty which the Court itself has noted Hungary was entitled to
terminate the Treaty.
Was Hungary's decision premature?
It is true that the diversion of the waters of the Danube had not yet been
completed in May 1992, but the grave breach of the Treaty had already begun
as I have shown earlier when Czechoslovakia started constructing Variant
C in November of the preceding year. It is difficult to accept that Hungary
should have passively awaited completion of the construction of Variant C.
Czechoslovakia had on several occasions stated that it was determined to
implement the "provisional" solution. The bilateral negotiations were
deadlocked; work on Variant C was pro-gressing well and Czechoslovakia made
no secret of its intention to carry out a unilateral diversion of the Danube
waters at Cunovo on the planned date, while refusing, even for a strictly
limited time, to suspend the works whose objective was no longer a mystery.
[p198]
When implementing Variant C, Czechoslovakia always described it, in so far
as it was a measure designed to attain the purpose of the 1977 Treaty, as an
"approximate application" of that Treaty. In an attempt to stop
construction work, Hungary sought to deprive Variant C of its alleged
justification, and hence it announced its termination of the Treaty. Work
on Variant C was undertaken and completed on Czechoslovak territory alone.
Termination of the 1977 Treaty was the only means available to Hungary to
prevent Czechoslovakia from diverting the Danube waters in the sector where
both banks of the river belong to that country. On 19 May 1992, it notified
Czechoslovakia that it would consider the Treaty to be terminated as from 25
May of that year. The period of notice was certainly very short but Article
65, paragraph 2, of the Vienna Convention on the Law of Treaties, which
provides for a three month time-limit, contains as it should be emphasized
the following exception: "except in cases of special urgency". In such a
case the time-limit may be less than three months. In May 1992, in the face
of very visible progress in the building of Variant C, Hungary was
manifestly in such a situation "of special urgency".
Recourse to termination of the 1977 Treaty proved ineffectual:
Czechoslovakia's decision was taken, and it was to remain irreversible. In
fact, construction had started up and work was not suspended for a single
moment; it carried on, even after Hungary had notified its partner that it
considered the Treaty to be terminated. In any event, the unilateral
diversion of the Danube was completed on 26 October 1992, and the grave
breach of the 1977 Treaty was complete. Even if Hungary's Note of 19 May
could as the Court holds have been considered premature, it took effect,
at the latest, when the diversion of the Danube waters was completed.
Did Hungary, as a result of the alleged violations of its international
obligations, forfeit its right to terminate the 1977 Treaty?
In the first part of my dissenting opinion, I showed that, when suspending
and then abandoning the works at Nagymaros, Hungary acted out of a state of
necessity, for which the criteria which do not need to be repeated here
were all met. The state of necessity exonerated Hun-gary from the
responsibility incurred on account of its failure to comply with certain
provisions of the 1977 Treaty. As far as the suspension of the works at
Dunakiliti is concerned, the majority of the criteria for a state of
necessity were also met, but it is true that Czechoslovakia had an
essen-tial interest in the continuation of these works. Hungary, for its
part, completed the construction of the dykes downstream of Gabcikovo for
which it was responsible under the Treaty and it offered to compensate
Czechoslovakia for such losses as that State might have sustained. There are
therefore, in Hungary's favour, circumstances exonerating it from
responsibility and certain mitigating circumstances, since the conduct for
which it can be reproached is not as serious as that constituted by [p199]
Czechoslovakia's construction of Variant C. The Treaty did not survive the
joint effect of the serious breach constituted by the diversion of the
Danube and Hungary's notification of its termination. The question of State
succession to the Treaty is therefore irrelevant.
As far as the expression "related instruments" is concerned, it should be
noted that with the disappearance of the Treaty, the fundamental text which
could hold all the instruments together no longer exists. That expression
subsequently lost any legal significance. That does not mean that all the
instruments whose provisions could have a certain relationship to those of
the 1977 Treaty have become obsolete. Their fate should be decided
separately, having regard to the relevant rules of international law.
***
The Court in its Judgment has taken the view, however, that the 16 September
1977 Treaty remained in force and that the Slovak Republic, as successor
State to the Federal Czech and Slovak Republic, became a party to the Treaty
as from 1 January 1993. With regard to the legal consequences of the
Judgment, including the rights and obligations for the Parties which the
Court was asked to determine under Article 2, paragraph 2, of the Special
Agreement, the Court, in paragraph 2 of the operative part of the Judgment,
states at point B that
"Hungary and Slovakia 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".
For its part, point C of paragraph 2 of the operative part uses the words
"in accordance with the Treaty", and point E the expression "in accordance
with the relevant provisions of the Treaty".
By deciding that the 1977 Treaty is still in force, the Court made its own
task more difficult and did nothing to ease that of the Parties since they
have to reach an agreement on the resolution of questions over which they
have been in dispute. According to its reasoning,
"The Court would set a precedent with disturbing implications for treaty
relations and the integrity of the rule pacta sunt servanda if it were to
conclude that a treaty in force between States . . . might be unilaterally
set aside on grounds of reciprocal non-compliance." (Para. 114.)
I must observe that the expression "reciprocal non-compliance" does not
adequately reflect the cause or causes of the termination of the treaty.
However, that is not my essential objection regarding that part of the
Judgment; rather am I concerned at the divergences not to say
con-tradictions between its "declaratory" part and its "prescriptive"
part. The Court, while maintaining the Treaty in force, wanted to avoid
being [p200] set against the maxim summum jus summa injuria, and it
recognized that the 1977 Treaty, in its original form, did not apply. I will
cite the pertinent passages of the Judgment in extenso:
"133. The Court, however, cannot disregard the fact that the Treaty has not
been fully implemented by either party for years, and indeed that their acts
of commission and omission have contributed to creating the factual
situation that now exists. Nor can it overlook that factual situation or
the practical possibilities and impossibilities to which it gives rise
when deciding on the legal requirements for the future conduct of the
Parties.
What is essential, therefore, is that the factual situation as it has
developed since 1989 shall be placed within the context of the preserved
and developing treaty relationship, in order to achieve its object and
purpose in so far as that is feasible. For it is only then that the
irregular state of affairs which exists as the result of the failure of
both Parties to comply with their treaty obligations can be remedied.
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
Gabcikovo 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
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."
The reasoning of the Court in that context is based above all on the role of
the time factor the eight years that have elapsed between 1989 and 1997:
"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." (One should not forget, in this context, that
Hungary proposed, as early as November 1989, that the disputes which the
parties could not resolve themselves should be decided by arbitration or by
recourse to the International Court of Justice.) In my opinion, however, the
approach limiting the impact of the time factor to the period that has
elapsed since the dispute arose does not enable the Court, against the
background of a complex case, to incorporate all of its relevant aspects.
Time passed, not only between 1989 and 1997, but also between 1977 [p201]
and 1989. The 1977 Treaty a bilateral treaty was concluded in a specific
political context, that of the bid to promote socialist integration of the
States Members of the Council for Mutual Economic Assistance, which was
radically transformed in 1989. The economic climate prevailing in 1977,
marked by the economic system known as the command economy, was overturned
in a no less radical manner when the advent of the market economy modified
all expectations as to the cost and viability of the G/N Project.
Furthermore, since the signature of the Treaty, ecological knowledge and
requirements have evolved rapidly. The Parties both admitted that the Treaty
was out of date: Hungary by proposing to amend it in November 1989; and
Czechoslovakia in September 1991, by recognizing that the obsolete parts of
the Treaty should be cancelled (Memorial of Slovakia, Vol. IV, Ann. 97, p.
249). The sudden recourse to Variant C, the so-called "provisional
solution", prevented the Parties from finding a mutually acceptable solution
to the problems raised by the Treaty. The facts, which I need not repeat at
this juncture, that argue for modification of the Treaty and require the
conclusion of a new agreement already existed in 1989, and do not derive
from the period subsequent to that date as consequences of the unlawful
conduct of the Parties.
The Judgment of the Court puts those Parties back in the context of an
"old", "out-of-date" Treaty, whilst prescribing sensible, reasonable and
even essential changes: to exclude definitively the peak mode operation of
the Gabcikovo power plant; not to build the Nagymaros works since "there is
no longer any point in building [them]"; and, with regard to environmental
protection, to take "new norms" into consideration and to assess "new
requirements" appropriately, "not only when States contemplate new
activities but also when continuing with activities begun in the past"
(para. 140).
Those norms would be more effective and the Parties to the dispute could
apply them more easily without the references to the 1977 Treaty. The Court
could and should have founded the prescriptive part of its Judgment not upon
an obsolete Treaty which could not be implemented and which in my opinion
had been terminated but on the uncontested rules of general international
law and on other treaties and conventions in force between the Parties, in
order to resolve the problems they had inherited from the old G/N Project.
One may be certain that the termination of the 1977 Treaty would not have
left the Parties to the dispute in a legal vacuum. Their "relationship", as
the Court noted,
"is also determined by the rules of other relevant conventions to which the
two States are party, by the rules of general international law and, in this
particular case, by the rules of State responsibility" (para. 132).
The preamble to the Special Agreement concluded by Slovakia and Hungary
states that the Slovak Republic is the "sole successor State" of the
[p202]
Czech and Slovak Federal Republic "in respect of rights and obligations
relating to the Gabcikovo-Nagymaros Project". The rights and obligations
created by the performance of the 1977 Treaty before it was terminated are
not affected by the termination of the Treaty. Under Article 70, paragraph
1, of the Vienna Convention on the Law of Treaties:
"Unless the treaty otherwise provides or the parties otherwise agree, the
termination of a treaty under its provisions or in accordance with the
present Convention:
(a) releases the parties from any obligation further to perform the treaty;
(b) does not affect any right, obligation or legal situation of the parties
created through the execution of the treaty prior to its termination."
(Emphasis added.)
The installations constructed in good faith in fulfilment of the 1977 Treaty
such as Gabcikovo and Dunakiliti are not affected by the ultimate fate
of that Treaty. Slovakia may therefore keep up and use the Gabcikovo power
plant in a manner not causing significant damage to its neighbour, that is
to say, in particular, by operating it in run-of-the-river mode. As to the
problems resulting from construction of the Cunovo dam and the diversion of
the Danube waters, they should be settled in accordance with other treaties
in force between the Parties, in particular the 1976 Boundary Waters
Convention, and with the other principles and rules of international law in
force between the Parties and placing them under certain binding
obligations. It follows that each of the Parties is obliged to refrain from
any act or any conduct having harmful effects on the environment and causing
significant damage to the other Party.
The most important point in that regard is the equitable and reasonable
sharing of the Danube waters. The Judgment of the Court cites Article 5,
paragraph 2, of the Convention on the Law of the Non-Navigational Uses of
International Watercourses, according to which:
"Watercourse States shall participate in the use, development and protection
of an international watercourse in an equitable and reasonable manner. Such
participation includes both the right to utilize the watercourse and the
duty to co-operate in the protection and development thereof, as provided in
the present Convention." (Para. 147.)
That principle, which may rightly be deemed to express a general rule of
international law in force, is relevant to the settlement of the dispute in
this case. The unlawfulness of Variant C lay in the appropriation by
Czechoslovakia, then by Slovakia, of almost all the Danube waters, a shared
natural resource. That unilateral use must cease as soon as possible and
definitively. That aim can be achieved by "associating Hungary, on an equal
footing, in the operation and management, and the [p203] benefits" of the
works built to date in fulfilment of the 1977 Treaty or outside and against
it, and that by way of the agreed utilization of the natural resources of
the Danube in the sector in question. This would provide a remedy for the
breach of international law constituted by Variant C, and the de facto
status would be transformed into a regime of law. That is the direction and
spirit expressed by the Court in paragraph 146 of it its Judgment. I concur
with the essence of the message contained in that paragraph, whilst
considering myself obliged to express it differently in order to take
account of the reasons which I have attempted to set out above.
Finally, I reiterate my conclusion that the 1977 Treaty was lawfully
terminated and that it is no longer in force. The prescriptive part of the
Judgment of the Court would, in my opinion, have been more logical and more
convincing if the Court had not based it on the 1977 Treaty but rather on
the rules of general international law and on the other treaties and
conventions binding on the Parties.
These considerations forced me to vote against points A, B and D of
paragraph 1 of the operative part.
As regards the points of paragraph 2 of the operative part, it goes without
saying that, having voted against point D of the first paragraph, I had to
vote against point A of the second paragraph. I am firmly convinced that
Hungary and Slovakia must negotiate in good faith, on the basis of the
international law in force, to implement the rights and obligations
relating to the shared natural resources of the Danube. These shared
resources should be exploited jointly and in accordance with mutually agreed
arrangements. However, the fact that point B of paragraph 2 refers
expressly to the objectives of the Treaty of 16 September 1977, point C to a
joint operational regime in accordance with that Treaty, and point E to the
relevant provisions of the said Treaty which Treaty in my opinion, and
having regard to the arguments put forward above, is no longer in force
prevented me from voting in favour of these points. At the same time, I
voted in favour of point D on the reciprocal compensation of Slovakia and
Hungary unless the Parties otherwise agree for the damage they have
sustained on account of the construction of the System of Locks, since I
considered that point to be fair and in accordance with the relevant rules
of international law.
(Signed) Geza HERCZEGH.
[p204]
DISSENTING OPINION OF JUDGE FLEISCHHAUER
I have voted in favour of paragraph 1 A of the dispositif oο the Court's
Judgment as I am in agreement with the Court's finding therein
"that Hungary was not entitled to suspend and subsequently abandon, in
1989, the works on the Nagymaros Project and on the part of the Gabcikovo
Project for which the Treaty of 16 September 1977 and related instruments
attributed responsibility to it" (para. 155).
I am also in agreement with the reasons that led the Court to this finding
(paras. 27-59).
I have, moreover, voted in favour of paragraph 1 C of the dispositif
according to which "Czechoslovakia was not entitled to put into operation,
from October 1992, this 'provisional solution' " (para. 155). I share the
view of the majority that
"Czechoslovakia, in putting Variant C into operation, was not applying the
1977 Treaty but, on the contrary, violated certain of its express
provisions, and, in so doing, committed an internationally wrongful act"
(para. 78).
As to the reasoning which led the Court to its findings in this respect
(paras. 72-88), I note, in particular, that the Court has not endorsed
justification of Czechoslovakia's recourse to Variant C by an alleged
principle of "approximate application" (para. 76) and that "[t]he Court
thus considers that the diversion of the Danube carried out by
Czechoslovakia was not a lawful countermeasure because it was not
proportionate" (para. 87). I am in agreement with these positions of the
Court.
I cannot agree, however, with most of the rest of the Judgment, and in
particular not with its central finding 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" (conclusion 1 D, para. 155).
I am of the view that Hungary has validly terminated that Treaty by its
notification of termination of 19 May 1992, with effect from 25 May 1992, or
alternatively as from 23 October 1992, i.e., the date of the actual
damming. Accordingly, I regard the consequences, which the majority of the
Court draws in the five conclusions in part 2 of paragraph 155 as legally
flawed, inasmuch as they are based on the concept of [p205] the continuing
validity of the 1977 Treaty. I have therefore voted against four of them
(i.e., conclusions 2 A, 2B, 2C and 2E); my vote in favour of conclusion 2D
has to be seen in the light of my considerations on the legal consequences
of the Judgment set forth in Part II below.
My reasoning is as follows.
I. The Legal Fate of the 1977 Treaty
1. As to the date of the unlawfulness of the recourse by Czechoslovakia to
Variant C, the Judgment points only to the date when the actual damming of
the Danube at Cunovo occurred, i.e., to 23 October 1992:
"Czechoslovakia violated the Treaty only when it diverted the waters of the
Danube into the bypass canal in October 1992. In constructing the works
which would lead to the putting into operation of Variant C, Czechoslovakia
did not act unlawfully." (Para. 108.)
"The Court notes that between November 1991 and October 1992, Czechoslovakia
confined itself to the execution, on its own territory, of the works which
were necessary for the implementation of Variant C, but which could have
been abandoned if an agreement had been reached between the parties and did
not therefore predetermine the final decision to be taken. For as long as
the Danube had not been unilaterally dammed, Variant C had not in fact been
applied." (Para. 79.)
Based on these findings the majority of the Court has concluded that:
"the notification of termination by Hungary on 19 May 1992 was premature. No
breach of the Treaty by Czechoslovakia had yet taken place and consequently
Hungary was not entitled to invoke any such breach of the Treaty as a ground
for terminating it when it did." (Para. 108.)
These considerations are erroneous for two reasons:
Firstly, Czechoslovakia, when it "proceeded" to Variant C, as the expression
used in Article 2, paragraph 1 (b), of the Special Agreement reads, was not
free to engage in this way of proceeding. It follows from the Special
Agreement that the time in question is November 1991. What happened in
November 1991 is that work on Variant C began that month (para. 23). It is
uncontested between the Parties that at that time, in spite of Hungary's
violation of the 1977 Treaty, the Treaty was in force between Czechoslovakia
and Hungary.
The 1977 Treaty being in force in November 1991, both Czechoslovakia and
Hungary were under the obligation to perform it in good faith. [p206]
That is the basic rule underlying the whole fabric of the international law
of treaties. It is reflected in Article 26 of the Vienna Convention on the
Law of Treaties ("Every treaty in force is binding upon the parties to it
and must be performed by them in good faith"). Good faith in performing a
treaty does not only concern the manner in which the treaty is applied and
implemented by the parties to it; good faith performance means also that the
parties must not defeat the object and purpose of the treaty. Under the
Vienna Convention, the obligation not to defeat the object and purpose of a
treaty exists already before its entry into force. According to Article 18
of the Convention:
"A State is obliged to refrain from acts which would defeat the object and
purpose of a treaty when:
(a) it has signed the treaty or has exchanged instruments constituting the
treaty subject to ratification, acceptance or approval, until it shall have
made its intention clear not to become a party to the treaty; or
(b) it has expressed its consent to be bound by the treaty, pending the
entry into force of the treaty and provided that such entry into force is
not unduly delayed."
I do not want to go into the question as to whether the whole of Article 18
corresponds actually to general international law. However, as the
International Law Commission remarked in its Commentary on Article 15 (which
became Article 18 in the text of the Convention as adopted) with a
reference to the Permanent Court's decision in the case concerning Certain
German Interests in Polish Upper Silesia {Merits, Judgment No. 7, P.C.I.J,
Series A, No. 7, p. 30):
"That an obligation of good faith to refrain from acts calculated to
frustrate the object of the treaty attaches to a State which has signed a
treaty subject to ratification appears to be generally accepted." (Yearbook
of the International Law Commission, 1966, Vol. II, p. 202.)
A fortiori does that obligation apply to a treaty after its entry into
force. It follows from there that a State party to a treaty in force is not
free to engage in even on its own territory as Czechoslovakia did as from
November 1991 construction works which are designed to frus-trate the
treaty's very object, i.e., in the present case the creation and the
operation of the Joint Project. The question of a justification of
Czechoslovakia's construction work as countermeasure does not arise, as the
Court has rightly found that the diversion of the Danube carried out by
Czechoslovakia which is the central part of Variant C was not a lawful
countermeasure because it was not proportionate (para. 87).
Secondly, I do not regard as the majority of the Court does the putting
into operation of Variant C as a wrongful act which consisted [p207] only
in the actual clamming of the Danube in October 1992. In my view, the
putting into operation of Variant C constituted a continuing wrongful act
in the meaning of Article 25 of the ILC Draft on State Responsibility
(Report of the International Law Commission on the work of its forty-eighth
session, 6 May-26 July 1996, Official Records of the General Assembly,
Fifty-first Session, Supplement No. 10 (A/51/10), p. 133), which extended
from the passing from mere studies and planning to construction in November
1991 and lasted to the actual damming of the Danube in October of the
following year. This is so because Czechoslovakia, in November 1991,
entered into the construction phase in the certainty that Hungary would
not, and could not, in view of the position taken not only by its Government
but also by its Parliament, return to the implementation of the 1977 Treaty.
At the same time, Czechoslovakia was firmly determined to start production
at the Gabcikovo hydroelectric power plant as soon as it was technically
possible and to that end to dam the Danube at Cunovo at the next occasion
when that would be feasible, i.e., during the low-water season in October
1992. How firmly both sides were locked in their respective positions is
illustrated by their diplomatic exchanges. In April 1991, the Hungarian
Parliament had recommitted the Government to negotiate with the Czechoslovak
Government "regarding the dissolution by joint agreement of the Treaty
concluded on 16 September 1977" (Parliamentary resolution 26/1991 (IV.23)
Regarding the Government's Responsibility in Connection with the
Gabcikovo-Nagymaros Barrage System, Memorial of Slovakia, Vol. IV, Ann. 88,
p. 215) and instructed the Government to
"concurrently initiate the conclusion of a new international treaty to
settle the issue of the consequences of the non-construction (abandonment)
of the barrage system and associated main projects" (ibid).
Consequently, Hungary not only constantly protested the unilateral measures
initiated by Czechoslovakia in order to put Variant C into operation, but
it continued to ask for the abrogation of the 1977 Treaty and its
replacement by a new agreement :
"the mandate of the Hungarian Governmental Delegation was determined by the
Resolution of Parliament, . . . Freed from the politics of the past, we can
re-evaluate the disputed problem from a professional/scientific viewpoint,
namely, the ecological effects, flood protection, navigation, energy,
economic, technical/security and other questions of the Barrage System
related to the 1977 Interstate Treaty or any other solution." (Hungarian
Minister without Portfolio to Slovak Prime Minister, 7 November 1991,
Memorial of Hungary, Vol. 4, Ann. 67, p. 122.) [p208]
"the Hungarian Party has repeatedly (beginning in summer of 1989) offered
the Czech and Slovak Party the chance to co-operate and to amend the 1977
Interstate Treaty, and to conclude a new treaty, . . . the Czech and Slovak
Party should not undertake any work which would be aimed at unilateral
solutions (which may, perhaps, mean the diversion of the Danube in
contravention of international law)" (Letter from the Hungarian Minister for
Environmental Protection and Territorial Development and the Minister
without Portfolio to the Czechoslovak Minister of Environmental Protection
of 6 December 1991, Memorial of Hungary, Vol. 4, Ann. 68, p. 124).
"In light of this the Hungarian Government deems the decision brought about
on 12 December 1991 by the Czech and Slovak Federal Republic unlawful and
unacceptable and calls upon the Czech and Slovak Federal Republic to
discontinue work on the diversion of the Danube." (Note Verbale from the
Ministry of Foreign Affairs of the Republic of Hungary to the Embassy of the
Czech and Slovak Federal Republic, 14 February 1992, ibid., Ann. 74, p.
135.)
Czechoslovakia on the other hand, in the critical period between the autumn
of 1991 and May 1992, when Hungary came through with its notification of
termination of the 1977 Treaty, consistently gave this message to Hungary.
"I would once again emphasise, however, that Czechoslovakia will only find
acceptable a variant which would make the operation of the Gabcikovo Barrage
possible." (Slovak Prime Minister to Hungarian Minister without Portfolio,
19 September 1991, ibid., Ann. 62, p. 113.)
"Work on the temporary measures will also cease if the Hungarian Party
discontinues its unilateral breach of the 1977 Treaty and recommences the
obligations provided for it therein or if an agreement is concluded between
the Republic of Hungary and the Czech and Slovak Federal Republic as to some
other solution regarding the fate of the Project.
The Government of the Czech and Slovak Federal Republic is prepared to
continue negotiations with the Hungarian Government on all levels regarding
the situation which has developed. At the same time, it cannot agree to the
cessation of work on the provi-sional solution." (Note Verbale from the
Ministry of Foreign Affairs of the Czech and Slovak Federal Republic to the
Ministry of Foreign Affairs of the Republic of Hungary, 17 March 1992,
ibid., Ann. 76, p. 139.)
"Czechoslovakia] has shown enough good intentions and a readiness to
negotiate, but it can no longer give consideration to the time-wasting and
delays which are being used by Hungary, and thus, it [p209] cannot suspend
work related to the provisional solution. In my view, until the Danube is
closed (31 October 1992) there is still an opportunity to resolve the
debated question by way of an agreement between the two States."
(Czechoslovak Prime Minister to Hungarian Prime Minister, 23 April 1992,
Memorial of Hungary, Vol. 4, Ann. 79, p. 147.)
Czechoslovakia did not reject the formation of a joint committee of experts,
including "foreign experts nominated by the European Community based on the
needs of both Parties" (Slovak Prime Minister to Hungarian Minister without
Portfolio, 18 December 1991, ibid., Ann. 69, p. 126). But the Slovak Prime
Minister added:
"I am repeatedly stressing that, because of the high state of readiness of
the Gabcikovo plant, the only solution that is acceptable for us is one
which takes into account the putting into operation of the Gabcikovo plant."
(Ibid.)
And on 8 January 1992 the Slovak Prime Minister repeated this position:
"We repeatedly emphasized at joint negotiations undertaken by the
Governmental Delegations of the CSFR and the Republic of Hungary that we can
only accept a solution which is aimed at the commencement of operations of
the Gabcikovo Barrage. This demand is justified by the advanced stage of the
construction at Gabcikovo and the amount of material resources invested.
The Czechoslovak Party is willing to take into consideration the conclusions
of the work done by such a committee of experts in any further procedures
regarding the Gabcikovo-Nagymaros Barrage System. It is also known that the
Government of the CSFR is willing to suspend the provisional solution on its
own sovereign territory insofar as the Government of the Republic of Hungary
is able to find an opportunity to enter into a joint solution." (Ibid., Ann.
72, p. 132.)
In the light of these circumstances, when the construction work for Variant
C got under way, on both sides the point of no return was passed. There was
a continuum and the Czechoslovak action of November 1991 and its action
undertaken in October 1992 share the same legal defi-ciency. The putting
into operation of Variant C was an internationally wrongful act extended
over time between November 1991 and October 1992.
Since I am thus contrary to the opinion expressed in the Court's Judgment
of the view that Czechoslovakia was not entitled to proceed, in November
1991, to Variant C, I am also in disagreement with the conclusion in
paragraph 1 B of the dispositif of the Judgment: "that Czecho-[p210]
Slovakia was entitled to proceed, in November 1991, to the 'provisional
solution'" (para. 155). Nor can I agree with paragraph 1 D of the
dispositif:
"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" (ibid.)
in so far as it is based on the allegedly premature giving of the
notification of termination by Hungary (para. 108).
2. I would disagree with the conclusion drawn by the majority based on the
point in time at which Hungary made its notification of termination even if
I shared quod non the view that Czechoslovakia violated the 1977 Treaty
only in October 1992. What that view means is that the notification of
termination was not warranted in May, as no breach of the Treaty had yet
occurred (para. 108), but that when the damming of the Danube happened, in
October, the event occurred too late as far as the Hungarian notification is
concerned. This view amounts, in its practical consequence, to an
extraordinary formalism: a unilateral legal act, the notification, is
discounted because a certain event, although expected and foreseen, had not
yet happened. The event happens, nothing else changes, but still legal
effects of the earlier act are said not to arise as it had been premature.
This approach to a matter of international law does not correspond to the
requirements of good faith. As the Court has said:
"One of the basic principles governing the creation and performance of
legal obligations, whatever their source, is the principle of good faith.
Trust and confidence are inherent in international cooperation, in
particular in an age when this co-operation in many fields is becoming
increasingly essential." (Nuclear Tests (Australia v. France), Judgment,
I.C.J. Reports 1974, p. 268, para. 46.)
If one regards as the majority of the Court does Hungary's notification
of termination as premature, then one must also admit that it would have
been possible for Hungary to withdraw this act and to substitute it later by
a new notification of termination based on the events of October 1992. The
principle of good faith requires that under such circumstances the defect of
Hungary's original act, the, in the view of the Court, premature giving of
its notification of termination of the 1977 Treaty, has to be regarded as
remedied once the missing factual event has occurred. That the occurrence of
a subsequent event can be an adequate ground for remedying a defective
unilateral act has been confirmed by the Permanent Court when it stated in
the case concerning the Mavrommatis Palestine Concessions:
"Even if the grounds on which the institution of proceedings was based were
defective for the reason stated, this would not be an [p211] adequate
reason for the dismissal of the Applicant's suit. . . . Even, therefore, if
the application were premature because the Treaty of Lausanne had not yet
been ratified, this circumstance would now be covered by the subsequent
deposit of the necessary ratifications." (1924, P.C.I.J., Series A, No. 2,
p. 34.)
And in the case concerning Certain German Interests in Polish Upper Silesia
the Permanent Court said:
"Even if, under Article 23, the existence of a definite dispute were
necessary, this condition could at any time be fulfilled by means of
unilateral action on the part of the applicant Party. And the Court cannot
allow itself to be hampered by a mere defect of form, the removal of which
depends solely on the Party concerned." (1925, P.C.I.J., Series A, No. 6, p.
14.)
Even if, therefore, the date of 19 May 1992 is not regarded as a suitable
date for Hungary's notification of termination, this defect is to be
regarded as being remedied as from 23 October 1992, date of the actual
damming of the Danube.
3. In its finding 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" (para. 155 (1) D, see also para. 108),
the majority of the Court did not base itself alone on the ground that
Hungary's notification had been premature. Two more grounds are given,
neither of which I can agree with.
The first of these additional reasons is
"that Czechoslovakia committed the internationally wrongful act of putting
into operation Variant C as a result of Hungary's own prior, wrongful
conduct. As was stated by the Permanent Court of International Justice:
'It is, moreover, a principle generally accepted in the jurisprudence of
international arbitration, as well as by municipal courts, that one Party
cannot avail himself of the fact that the other has not fulfilled some
obligation or has not had recourse to some means of redress, if the former
Party has, by some illegal act, prevented the latter from fulfilling the
obligation in question . . .' (Factory at Chorzow, Jurisdiction, Judgment
No. 8, 1927, P.C.I.J., Series A, No. 9, p. 31).
Hungary, by its own conduct, had prejudiced its right to terminate the
Treaty; this would still have been the case even if Czechoslovakia, by the
time of the purported termination, had violated a provision essential to the
accomplishment of the object or purpose of the Treaty." (Para. 110; emphasis
added.) [p212]
I do not want to put into doubt this general rule; however, I do not think
that the principle applies in the circumstances of the present case.
My objection to the Judgment in this respect is twofold: firstly, the Court
overlooks that recourse to Variant C was neither automatic nor the only
possible reaction of Czechoslovakia to Hungary's violations of the 1977
Treaty. Czechoslovakia would have been entitled to terminate the Treaty. If
it did not want to do this, it could, for example, have provided
unilaterally for participation of Hungary in the realization of Variant C,
possibly in combination with a third party dispute settlement clause.
Secondly, the Court, in basing its negation of a right of Hungary to
terminate the 1977 Treaty in response to the realization by Czechoslovakia
of Variant C, on the fact that Hungary itself had violated the Treaty first,
does not take account of its own conclusion that:
"Czechoslovakia, 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 with the continuing effects of the
diversion of these waters on the ecology of the riparian area of the
Szigetkoz failed to respect the propor-tionality which is required by
international law" (para. 85),
and that the derivation of the Danube "was not a lawful countermeasure
because it was not proportionate" (para. 87).
What applies in the present case is this: Hungary, by its prior violation of
the 1977 Treaty, had not become a legal outlaw which must endure every
measure with which Czechoslovakia could come up in response. The principle
that no State may profit from its own violation of a legal obligation does
not condone excessive retaliation. The principle, as stated by the Permanent
Court and applied to the present case, means that one Party, Hungary, would
not be entitled to avail itself of the fact that the other Party,
Czechoslovakia, has not fulfilled an obligation if the first Party, Hungary,
has by an illegal act prevented the other, Czechoslovakia, from fulfilling
the obligation in question. This, however, is not the case here. The
obligation not fulfilled by Czechoslovakia is the duty to respect Hungary's
entitlement to an equitable and reasonable share in the waters of the
Danube. Hungary has not made it impossible for Czechoslovakia to respect
that right; as I have pointed out above, the unilateral realization of
Variant C by Czechoslovakia was neither automatic nor the only possible
reaction to Hungary's breaches of the Treaty. A broader interpretation of
the principle in question which would disregard the requirement of
proportionality, would mean that the right to counter-measures would go
further, in respect to disproportionate intersecting violations of a treaty,
as it goes under general international law. It is therefore wrong to apply
the principle quite schematically to cases where there are intersecting
("reciprocal") violations of a treaty as the Court does where it states
[p213]
"that although it has found that both Hungary and Czechoslovakia failed to
comply with their obligations under the 1977 Treaty, this reciprocal
wrongful conduct did not bring the Treaty to an end nor justify its
termination" (para. 114).
Rather, the recourse by Czechoslovakia to Variant C constituted a new breach
of the 1977 Treaty, this time by Czechoslovakia. This new breach of the
Treaty, by exceeding in proportionality Hungary's earlier breaches, set in
motion a new chain of causality and entitled Hungary to defend itself by
taking recourse to its right under Article 60 of the Vienna Con-vention on
the Law of Treaties, i.e., to terminate the Treaty. The requirements of
Article 60, paragraph 3(b), are met as
"the operation of Variant C led Czechoslovakia to appropriate, essentially
for its use and benefit, between 80 and 90 per cent of the waters of the
Danube before returning them to the main bed of the river, despite the fact
that the Danube is not only a shared interna-tional watercourse but also an
international boundary river" (para. 78)
and thus Variant C infringed upon basic rights of Hungary, essential in the
accomplishment of the 1977 Treaty. In a situation of disproportionate
intersecting violations of an international treaty, such as the one in which
Hungary and Czechoslovakia found themselves after the latter's recourse to
Variant C, the corrective element does not lie in the loss by the first
offending State of the right to defend itself against the second offence by
way of termination, but in a limitation of the first offender's here
Hungary's right to claim redress for the second offence.
I therefore come to the conclusion that contrary to the view of the
majority of the Court the fact that Hungary violated the 1977 Treaty first
did not deprive it of its right to terminate the same Treaty in reaction to
its later violation by Czechoslovakia.
4. The other of the additional reasons invoked by the Court's majority in
support of the alleged invalidity of Hungary's notification of termination
is
"that, according to Hungary's Declaration of 19 May 1992, the termination
of the 1977 Treaty was to take effect as from 25 May 1992, that is only six
days later. Both Parties agree that Articles 65 to 67 of the Vienna
Convention on the Law of Treaties, if not codifying customary law, at least
generally reflect customary international law and contain certain procedural
principles which are based on an obligation to act in good faith." (Para.
109; emphasis added.)
I do not contest that Articles 65 to 67 may reflect certain procedural
principles pertaining to customary law, but I do not think that Hungary's
[p214] notification of termination contradicts these principles. In this
respect, the delay of only six days provided for by Hungary for its
notification to become effective should not be seen in isolation. In fact,
Hungary transmitted its notification of termination a full six months after
Czechoslovakia had proceeded to Variant C in November 1991. During that
period Hungary as shown above in the quotations from the diplomatic
exchanges between the two Parties did not cease to protest against the
unilateral measures taken by Czechoslovakia and to ask that they be stopped.
Hungary also pointed out that a continuation of these measures might put the
fate of the 1977 Treaty into question:
"I am hopeful that the representatives of the Government and the Parliament
of the Czech and Slovak Republic having regard to their historic
responsibility will find an opportunity to take the above reasonable points
of view into consideration. If this expectation proves to be futile, the
Government of the Republic of Hungary would be compelled to review the
consequences of the discontinuation of the negotiations, the fate of the
1977 interstate Treaty and the necessary counter-measures." (Hungarian Prime
Minister to the Czechoslovak Prime Minister, 19 December 1991, Memorial of
Hungary, Vol. 4, Ann. 70, p. 129.)
"If the Government of the Czech and Slovak Federal Republic were to reject
our proposals anyway and continue the work aimed at the diversion of the
Danube, which is a serious breach of international law, then it will create
a very difficult situation. . . . The Government of the Czech and Slovak
Republic would thus be placing the Hungarian Government into a state of
necessity forcing it to terminate the Treaty." (Hungarian Prime Minister to
Czechoslovak Prime Minister, 26 February 1992, ibid., Ann. 75, p. 138.)
In these circumstances the fact that Hungary, in May 1992, gave only six
days' notice cannot be regarded as contravening the requirements of good
faith in the application of international law.
These are the reasons which lead me to the conclusion that Hungary has
validly terminated the 1977 Treaty as from 25 May 1992 or alternatively
as from 23 October 1992.
II. The Legal Consequences of the Judgment
From my considerations set forth above it follows that the determination of
the legal consequences arising from the answers to the first three
questions asked of the Court by the Special Agreement has to start from the
finding that Hungary has validly terminated the 1977 Treaty as from 25 May
or alternatively 23 October 1992. From there it follows that up to that
date the legal situation concerning the G/N Project was primarily governed
by the 1977 Treaty and related instruments; after that [p215] date the
situation is governed by general international law and by those treaties
which remain in force independently of Hungary's termination of the 1977
Treaty, such as, inter alia, the 1948 Danube Convention, the 1976 Boundary
Water Convention, the agreements relating to Danube fishery, as well as by
conventions of a general character such as the Vienna Convention on the Law
of Treaties.
This means that as from 25 May to 23 October 1992 Hungary is no longer
obliged to construct at Nagymaros. The constructions at Dunakiliti do not
have to be revived and completed. For Slovakia, the termination of the 1977
Treaty means that it is no longer under an obligation to arrange for the
joint operation, together with Hungary, of the Gabcikovo hydroelectric power
plant or to share with Hungary the electricity generated there.
A second starting point is that the termination of the 1977 Treaty whether
one accepts 25 May 1992 or 23 October of the same year as the decisive date
means that Slovakia, which came into existence as an independent State
only as from 1 January 1993, has never become a party to the 1977 Treaty.
The fact that Slovakia has never succeeded to Czechoslovakia as a party to
the 1977 Treaty does not mean, however, that Slovakia has become separated
from this case. Slovakia has inherited the works produced under the G/N
Project on its territory, in particular the Cunovo reservoir, the bypass
canal, the Gabcikovo lock and the Gabcikovo power station. It is operating
these installations. It has thus endorsed and continued the Czechoslovak
action regarding Variant C. Slovakia therefore must be held accountable for
Czechoslovakia's acts regarding the G/N Project.
A third starting point for the determination of the legal consequences
should be the ex nunc effect of the termination of international treaties.
As laid down in Article 70 of the Vienna Convention on the Law of Treaties,
which is another provision reflecting a customary rule, the termination of
a treaty releases the parties from any obligation to further perform the
treaty but "does not affect any right of the parties created through the
execution of the treaty prior to its termination" (Art. 70, para. 1 (b)).
This means, inter alia, that the ownership of constructions which existed on
25 May to 23 October 1992 remains as provided for in Article 8 of the 1977
Treaty. If that creates problems, it is for the Parties to sort them out by
agreement between themselves.
A fourth starting point for the determination of the legal consequences of
the Judgment is the conclusion that Czechoslovakia was not entitled to put
Variant C into operation from October 1992 (paragraph 1 C of the dispositif)
as
"Czechoslovakia, in putting Variant C into operation, was not applying the
1977 Treaty but, on the contrary, violated certain of its [p216]express
provisions, and, in so doing, committed an internationally wrongful act"
(para. 78).
As I have pointed out above, I agree with the Judgment in these findings.
However, it does not follow from them that with the falling away of the 1977
Treaty all legal obstacles against the continued operation of Variant C by
Slovakia, as the successor to Czechoslovakia, were removed. This is so
because the appropriation by Czechoslovakia/Slovakia of the major part of
Hungary's share in the waters of the Danube for the full length of the
bypass canal violated not only the 1977 Treaty but, as the Judgment
recognizes, the basic right of Hungary to an equitable and reasonable
sharing of the resources of an international watercourse (para. 78). This is
a right that existed not only under the Treaty but which exists under
general international law.
This means that there is no obligation for Slovakia to dismantle the
constructions which Czechoslovakia had built in order to make Variant C
operational. These constructions are all situated in what is now Slovak
territory and their mere presence there does not contravene any
international legal obligation of Slovakia. After the 1977 Treaty had
fallen away, there was, and still is, no legal obligation for Slovakia any
more to provide for a joint running of the Gabcikovo hydroelectric power
plant or for a sharing of profits. There continues to be, however, a legal
obstacle against the unilateral running of Variant C by Slovakia, and that
is the unilateral appropriation of, as the Judgment confirms (para. 78)
between 80 and 90 per cent of Hungary's share in the waters of the Danube
without Hungary's consent on a stretch of about 30 km in length. Hungary has
requested the Court:
"to adjudge and declare further
(5) that the Slovak Republic is under the following obligations: (a) to
return the waters of the Danube to their course along the international
frontier between the Republic of Hun-gary and the Slovak Republic, that is
to say the main navigable channel as defined by applicable treaties; (h) to
restore the Danube to the situation it was in prior to the putting into
effect of the provisional solution" (para. 13).
The Court cannot uphold these requests. While the 1977 Treaty was in force,
it had been breached by both Parties, albeit in different ways and at
different times. As has been explained above, Hungary as the first offender
did not lose its right to defend itself against Czechoslovakia's later
violation of the Treaty. However, as regards the kind of restitution Hungary
can claim for the diversion of the waters of the Danube, the fact that
Hungary first adhered to the 1977 Treaty and endorsed it, in 1983 asked for
a slowing down, but by no means the abandonment of its [p217] execution, in
1989 again pressed for an acceleration and then, still in the same year,
suspended and subsequently abandoned its share in the works at Nagymaros and
Dunakiliti, cannot be overlooked. By reason of its own previous behaviour
Hungary cannot in good faith be considered to be entitled to full
restitution by return of the full flow of water to the old Danube and the
full restoration of the situation in which the Danube was prior to the
operation of Variant C. A water management regime must be established that
takes into account Hungary's ecological needs, as well as the fact that the
quantity of water going to the Slovak side and the rent-ability of the
Gabcikovo hydroelectric power plant are interrelated. It would certainly be
desirable that such a regime, which would be restricted to water management,
but as the Treaty does not exist any more must not make provision for
the joint running of the Gabcikovo hydroelectric power plant, should be
agreed between the Parties themselves. Should the Parties fail, they would
have to return to the Court under Article 5, paragraph 3, of the Special
Agreement.
The fifth starting point for the determination of the legal consequences of
the Court's Judgment must be the fact that as a consequence of the Judgment
the flow of water in the old bed of the Danube will be increased again.
Irrespective of whether and to what extent navigation will use the old
Danube again, there will be a discernible principal channel. There will
therefore be no necessity for new or additional boundary arrangements.
However, Slovakia, as a riparian State of the Danube and a party to the 1948
Danube Convention, will be under the legal obligation to make binding
arrangements with the other States parties to the Danube Convention in order
to secure for their navigation through the bypass canal, the Gabcikovo locks
and the Cunovo reservoir, conditions corresponding to those provided for in
the Danube Convention. On the same line, Slovakia will also be under a legal
obligation to provide for the application, in the bypass canal and in the
reservoir, of the provisions concerning fisheries of the 1956 Treaty
concerning the Regime of State Boundaries as well as of the 1958 Convention
concerning Fishing in the Waters of the Danube.
The sixth point to be taken into consideration in this context is that, as
both Parties have committed internationally illegal acts against each other,
each Party owes the other compensation. Hungary owes compensation to
Slovakia for the damages arising out of the delays in construc-tion caused
by its suspension and subsequent abandonment of its share in the works at
Nagymaros and Gabcikovo between 13 May 1989 and 25 May to 23 October 1992.
Slovakia in turn owes compensation to Hungary for losses and damages
sustained by Hungary and its nationals out of the unilateral derivation by
Czechoslovakia and Slovakia of waters of the Danube between the actual
damming of the river in October 1992 and [p218] the entry into force of the
water management agreement, to be brought about in pursuance of the Judgment
of the Court. The amounts of compensation have to be fixed in accordance
with Article 5 of the Special Agreement.
(Signed) Carl-August FLEISCHHAUER.
[p219]
DISSENTING OPINION OF JUDGE VERESHCHET1N
I regret that I cannot associate myself with those parts of the Judgment
according to which Czechoslovakia was not entitled to put the so-called
Variant C ("provisional solution") into operation from October 1992
(Judgment, para. 155, point 1 C) 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" (para. 155, point
2D).
I firmly believe that Czechoslovakia was fully entitled in international law
to put into operation Variant C as a countermeasure so far as its partner in
the Treaty persisted in violating its obligations. Admittedly, Slovakia
itself advanced this defence as "an alternative legal argument" and did not
fully develop it. The logic is very clear and has been repeatedly explained
by Slovakia. It does not believe Variant C to be a wrongful act, even prima
facie, while any countermeasure, viewed in isolation from the circumstances
precluding its wrongfulness, is a wrongful act in itself.
Slovakia takes the view that Variant C was a lawful, temporary and
reversible solution necessitated by the action of its partner and prefers to
defend its decision on the basis of the doctrine of "approximate
application". However, a subjective view or belief of Slovakia cannot
preclude the Court from taking a different view on the matter. The Court is
bound by the questions put to it by the Parties in the Special Agreement,
but not by the arguments they advanced in their pleadings.
In this regard a very pertinent comment can be found in the International
Law Commission's Commentary to the Draft Articles on State Responsibility:
"Whether a particular measure constitutes a countermeasure is an objective
question ... It is not sufficient that the allegedly injured State has a
subjective belief that it is (or for that matter is not) taking
countermeasures. Accordingly whether a particular measure in truth was a
countermeasure would be ... a matter for the tribunal itself to determine."
(United Nations, Official Records of the General Assembly, Fifty-first
Session, Supplement No. JO (A/51/10), pp. 162-163.) [p220]
The Parties requested the Court to decide:
"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 . . ." (Special Agreement, Art. 2, para. 1 (b);
emphasis added).
Since the Court has decided that "Czechoslovakia was entitled to proceed,
in November 1991, to the 'provisional solution'" (Judgment, para. 155, point
IB), I shall further focus my observations on the entitlement of
Czechoslovakia to put this system into operation from October 1992.
Entitlement to respond by way of proportionate countermeasures stems from a
prior wrongful act of the State which is the target of the counter-measures
in question. According to the Court's jurisprudence, established wrongful
acts justify "proportionate countermeasures on the part of the State which
ha[s] been the victim of these acts ..." (Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, I.C.J. Reports 1986, p. 127, para. 249). Entitlement to
take countermeasures is circumscribed by a number of conditions and
restrictions.
The most recent and authoritative attempt to codify the rules relating to
countermeasures was made by the International Law Commission within the
framework of its topic on State Responsibility (United Nations, Official
Records of the General Assembly, Fifty-first Session, Supplement. No. 10
(A/51/10)). Some of the provisions formulated by the ILC in this regard may
be viewed as not merely codifying, but also developing customary rules
relating to countermeasures (formerly known as reprisals). Therefore, I do
not think that the Court in its assessment of the putting into operation of
Variant C as a countermeasure may be overreaching the requirements
established by the ILC draft for a counter-measure to be lawful.
Thus, to require that Variant C should have been the only means available
in the circumstances to Czechoslovakia would amount to applying to
countermeasures the criterion which the ILC considers to be indispensable
for the invocation of "the state of necessity", but does not specifi-cally
mention in the text of the Articles dealing with countermeasures.
But even assuming this criterion should be applied to countermeasures as
well, what other possible legal means allegedly open to Czechoslovakia could
there be apart from countermeasures? Since the Court has found that
Czechoslovakia was not entitled to put Variant C into operation, it should
in all fairness have clearly indicated some other legal option or options
whereby Czechoslovakia could effectively have asserted its rights under the
Treaty and induced its partner to return to the performance of its
obligations. In my analysis of the case, I have been unable to find any such
effective alternative option available for Czechoslovakia in 1991 or 1992.
[p218]
Certainly one of the legal means according to Article 60 of the Vienna
Convention on the Law of Treaties could be the termination of the 1977
Treaty, in response to the material breach committed by the other party. But
for Czechoslovakia would this not have amounted to bringing about by its own
hand the result which Hungary had sought to achieve by its unlawful actions?
Another conceivable legal means might have been the formal initiation of a
dispute settlement procedure under Article 27 of the 1977 Treaty. This
Article stipulates that:
"1. The settlement of disputes in matters relating to the realization and
operation of the System of Locks shall be a function of the government
delegates.
2. If the government delegates are unable to reach agreement on the matters
in dispute, they shall refer them to the Governments of the Contracting
Parties for decision."
At the time of the proceeding to Variant C (November 1991), "the matters in
dispute" had long been in the hands of the Governments of the contracting
parties. Therefore, no settlement could realistically be expected through a
procedure at a much lower level when all the attempts to reach a settlement
at the highest possible intergovernmental level had failed.
Would it be any more legally correct or, for that matter, realistic to
insist that Czechoslovakia should have come to the Court before putting
Variant C into operation in October 1992? Apart from the fact that
Czechoslovakia was not legally bound to do so, it should be recalled that
more than four years elapsed between the filing of the Application in the
present case and the commencement of the hearings. One can easily imagine
the amount of economic and environmental damage as well as the damage
relating to international navigation that could have been caused by such a
delay.
What should be borne in mind, however, is the fact that Czechoslovakia
respected the obligation to negotiate prior to taking countermeasures. The
time between the first suspension of works by Hungary in May 1989 and the
proceeding to Variant C in November 1991 and subsequently putting this
system into operation in October 1992 was replete with fruitless
negotiations at different levels aimed at finding a resolution of the
dispute (see paragraphs 61-64 of the Judgment). The history of these
negotiations clearly shows that, at least from the end of 1990, the sole
purpose of these negotiations for Hungary was the termination of the Treaty
and the conclusion of a new agreement dealing only with the consequences of
this termination, while for Czechoslovakia the purpose of negotiations was
the continuation and completion of the Joint Project in some agreed form
within the Treaty framework. Hungary's gradual withdrawal from the Joint
Project in defiance of the 1977 Treaty led to the putting into operation of
Variant C. [p222]
The basic conditions for the lawfulness of a countermeasure are (1) the
presence of a prior illicit act, committed by the State at which the
countermeasure is targeted; (2) the necessity of the countermeasure; and (3)
its proportionality in the circumstances of the case. Certain kinds of acts
are entirely prohibited as countermeasures, but they are not relevant to the
present case (these acts being the threat or use of force, extreme economic
or political coercion, infringement of the inviolability of diplomatic
agents, derogations from basic human rights or norms of jus cogens).
I believe all the above-mentioned conditions were met when Czechoslovakia
put Variant C into operation in October 1992. As to the first condition, it
has been satisfied by the Court's findings that Hungary was not entitled to
suspend and subsequently abandon the works relating to the Project or to
terminate the Treaty (Judgment, para. 155, points 1 A and D). The unilateral
suspension of the works by Hungary at Nagy-maros and at Dunakiliti (initial
breaches of the 1977 Treaty by way of non-performance) and later the
abandonment of the work on the Project occurred before November 1991 the
date when, according to the Special Agreement, Czechoslovakia proceeded to
the "provisional solution". The illicit termination of the Treaty by Hungary
(19 May 1992) preceded the date when Czechoslovakia put Variant C into
operation (October 1992 according to the Special Agreement).
Countermeasures may be seen as "necessary" only if they are aimed at
bringing about the compliance of the wrongdoing State with its obligations
and must be suspended once the illicit act has ceased. This requirement
therefore presupposes that countermeasures are reversible by nature.
In the course of the pleadings Slovakia stated and repeated over and over
again that Variant C was conceived as a provisional and reversible solution,
as an attempt to induce Hungary to re-establish the situation which existed
before its wrongful act. Significantly, the Working Group of Independent
Experts of the Commission of the European Communities, in its report of 23
November 1992, did not deny the technical feasibility of the return to the
Treaty Project:
"In principle, the ongoing activities with Variant C could be reversed. The
structures, excluding some of the underground parts like sheet piling and
injections, could in theory be removed. The cost of removing the structures
are roughly estimated to at least 30 per cent of the construction costs."
(Memorial of Hungary, Vol. 5, Part II, Ann. 14, p. 434.)
This statement confirms that, at least at the time of the damming of the
Danube, Variant C was a reversible measure and a return to some agreed joint
scheme of the Treaty Project was possible.
The contention of Hungary regarding Czechoslovakia's hidden inten-[p223]tions to act unilaterally intentions which allegedly already existed
in the past and still do may be of scant relevance to the issue of the
reversibility of Variant C.
The existence of such intentions at the governmental level and the readiness
to realize them would hardly be compatible with Czechoslovakia's conduct
after the suspension of works under the Treaty by Hungary. The Government
of Czechoslovakia did not seize upon the opportunity which had emerged to
terminate the 1977 Treaty and to complete the Project unilaterally, but
instead tried to persuade its Hungarian counterpart to return to the
performance of its treaty obligations. At the same time, the Government of
Czechoslovakia expressed its willingness to meet many of Hungary's
environmental concerns, proposing in October 1989 negotiations on agreements
relating to technological, operational and ecological guarantees as well as
to the limitation or exclusion of the peak mode operation of the
Gabcikovo-Nagymaros Barrage System. In any event, the veracity and fairness
of the public commitments of Czechoslovakia and Slovakia to return to the
Joint Project may not be refuted on the basis of mere conjectures, but could
be tested only by the response of Czechoslovakia and Slovakia to the
positive actions by Hungary.
It remains for us to examine one more basic condition for the lawfulness of
a countermeasure, namely its proportionality in the circumstances of the
case. It is widely recognized, in both doctrine and jurisprudence that the
test of proportionality is very important in the regime of counter-measures
and at the same time it is very uncertain and therefore complex.
To begin with, according to the ILC:
"there is no uniformity ... in the practice or the doctrine as to the
formulation of the principle, the strictness or flexibility of the
principle and the criteria on the basis of which proportionality should be
assessed" (United Nations, Official Records of the General Assembly,
Fiftieth Session, Supplement No. 10 (A/50/10), p. 146).
The ILC also observes that "reference to equivalence or proportionality in
the narrow sense ... is unusual in State practice" (ibid., p. 147). That is
why in the literature and arbitral awards it is suggested that the
lawfulness of countermeasures must be assessed by the application of such
negative criteria as "not [being] manifestly disproportionate", or "clearly
disproportionate", "pas hors de toute proportion"FN1, "not out of
proportion", etc. The latter expression ("not out of proportion") was
employed by the ILC in its most recent draft on State Responsibility. The
text of the corresponding Article reads: [p224]
---------------------------------------------------------------------------------------------------------------------- FN1
In French in the original text. 220
---------------------------------------------------------------------------------------------------------------------
"any countermeasure taken by an injured State shall not be out of proportion
to the degree of gravity of the internationally wrongful act and the effects
thereof on the injured State" (Art. 49).
In its Commentary the Commission says that "proportionality" should be
assessed taking into account not only the purely "quantitative" element of
damage caused, but also "qualitative" factors such as the importance of the
interest protected by the rule infringed and the "seriousness of the breach"
(United Nations, Official Records of the General Assembly, Fiftieth
Session, Supplement No. 10 (A/50/10), pp. 147-148).
If we take this approach which, in my view, adequately expresses State
practice and jurisprudence, we should weigh the importance of the principle
pacta sunt servanda breached by Hungary and the concrete effects of this
breach on Czechoslovakia against the importance of the rules not complied
with by Czechoslovakia and the concrete effects of this noncompliance on
Hungary. The "degree(s) of gravity" in both cases need not necessarily be
equivalent but, to use the words of the Air Services Agreement Award, must
have "some degree of equivalence" (International Law Reports, Vol. 54, p.
338), or in the words of the ILC must "not be out of proportion".
The task is not an easy one and may be achieved only by way of
approximation, which means with a certain degree of subjectivity. Weighing
the gravity of the prior breach and its effects on the one hand, and the
gravity of the countermeasure and its effects on the other, the Court
should, wherever possible, have attempted in the first place to compare like
with like and should have done so with due regard to all the attendant
circumstances against the background of the relevant causes and
consequences. Following this approach, the Court should have assessed by
approximation and compared separately:
(1) the economic and financial effects of the breach as against the
economic and financial effects of the countermeasure;
(2) the environmental effects of the breach as against the environmental
effects of the countermeasure; and
(3) the effects of the breach on the exercise of the right to use commonly
shared water resources as against the effects of the countermeasure on the
exercise of this right.
All these assessments and comparisons should have specifically been confined
to the span of time defined by the question put to the Court by the Parties,
namely November 1991 to October 1992. It should not be forgotten that the
very idea and purpose of a countermeasure is to induce the wrongdoing State
to resume performance of its obligations. The sooner it does so the less
damage it will sustain as a result of the countermeasure.[p225]
On the first point of comparison, according to Slovakia "by May 1989, a
total of USS2.3 billion (CSK 13.8 billion) had been spent by Czechoslovakia
on the G/N Project" (Memorial of Slovakia, para. 5.01). These figures, which
naturally do not include the loss of energy production and the cost of the
protection, maintenance and eventual removal of the existing structures,
give the idea of the economic and financial losses which would inevitably
have been sustained by Czechoslovakia in the event of a complete abandonment
of the Project.
For its part, Hungary did not, either in its written pleadings or in its
oral arguments, give any concrete figures evincing in monetary terms the
amount of actual material damage sustained as a result of Czechoslovakia's
resort to Variant C. Hungary claimed its entitlement to the payment by
Slovakia of unspecified sums in compensation for possible future damage, or
potential risk of damage, which might be occasioned by Variant C. Although
it is true that "[n]atural resources have value that is not readily measured
by traditional means" (Reply of Hungary, Vol. 1, para. 3.170), uncertain
long-term economic losses, let alone the mere potential risk of such losses,
may not be seen as commensurable with the real and imminent threat of having
to write off an investment of such magnitude.
In terms of comparative environmental effects, Variant C could be seen as
advantageous against the originally agreed project, due to a smaller
reservoir and the exclusion of peak mode operation. On the other hand, in
the event of the total abandonment of the project, the waterless bypass
canal and other completed but idle structures would have presented a great
and long-lasting danger for the environment of the whole region. As stated
in the Judgment
"It emerges from the report, dated 31 October 1992, of the tripartite
fact-finding mission . . ., that not using the system . . . could have given
rise to serious problems for the environment." (Para. 72.)
Also, it is necessary to compare the gravity and the effects of the breach
of the 1977 Treaty by Hungary with the gravity and the effects of the
response by Czechoslovakia in terms of their respective rights to the
commonly shared water resources. Hungary and Czechoslovakia had agreed by
treaty on a scheme for common use of their shared water resources, which use
they evidently considered equitable and reasonable, at least at the time
when this agreement was reached. Both States had made important investments
for the realization of the scheme agreed upon. At the time when one of the
States (Czechoslovakia) had completed 90 per cent of its part of the agreed
work, the other State (Hungary) abruptly refused to continue discharging
its treaty obligations. Due to the technical characteristics of the project,
Hungary thereby deprived Czechoslovakia of the practical possibility of
benefiting from the use of its part of the shared water resources for the
purposes essential for [p226] Czechoslovakia, clearly defined in the Treaty
and expressly consented to by Hungary.
In response to this illicit act, Czechoslovakia likewise failed to act in
accordance with its obligations under the 1977 Treaty. By putting into
operation Variant C, it temporarily appropriated, on a unilateral basis and
essentially for its own benefit, the amount of water from which originally,
according to the Treaty and the Joint Contractual Plan, both States were
entitled to benefit on equal terms. At the same time, Czechoslovakia
reiterated its willingness to return to the previously agreed scheme of
common use and control provided that Hungary ceased violating its
obligations. The possibility of a revision by agreement of the original
joint scheme was not excluded either.
In those circumstances and as long as Hungary failed to perform its
obligations under the 1977 Treaty and thus, of its own choosing, did not
make use of its rights under the same Treaty, Czechoslovakia, in principle,
by way of a countermeasure and hence on a provisional basis, could channel
into the Gabcikovo structure as much water as had been agreed in the Joint
Contractual Plan. Moreover, Article 14 of the 1977 Treaty provided for the
possibility, under a certain condition, that each of the Parties might
withdraw quantities of water exceeding those specified in the Joint
Contractual Plan (see Judgment, para. 56).
Let it be assumed, however, that in view of all the attendant circumstances
and the growing environmental concerns Czechoslovakia, as a matter of
equity, should have discharged more water than it actually did into the old
river bed and the Hungarian side-arms of the Danube. This assumption would
have related to only one of the many aspects of the proportionality of the
measure in question, which could not in itself warrant the general
conclusion of the Court that Czechoslovakia was not entitled to put Variant
C into operation from October 1992.
For the reasons stated above, I could not vote for paragraph 155, point 1C,
of the Judgment. Nor could I support paragraph 155, point 2 D, in so far as
it does not, regrettably, differentiate between the obligation of the State
which had committed a prior illicit act and that of the State which
responded by way of a countermeasure. It goes without saying that my
negative vote on paragraph 155, point 2D, as a whole must not be understood
as a vote against the first part of this paragraph.
(Signed) Vladlen S. VERESHCHETIN.
[p227]
DISSENTING OPINION OF JUDGE PARRA-ARANGUREN
1. Although I have voted for the operative part of the Judgment, with the
exception of paragraph 1, point C, my favourable vote does not mean that I
share each and every part of the reasoning followed by the majority of the
Court in reaching its conclusions.
I
2. I have voted against paragraph 1, point C, of the operative part of the
Judgment for the following reasons.
3. At the time of Hungary's suspension and later abandonment of works, some
of those works were largely completed, especially at the Gabcikovo section
of the barrage system. As a result of Hungary's violations of its
obligations under the 1977 Treaty, Czechoslovakia was entitled to terminate
it, according to general international law, as codified in Article 60 of
the 1969 Vienna Convention on the Law of Treaties. However, Czechoslovakia
did not exercise that right and decided to maintain the 1977 Treaty in
force.
4. Nonetheless, Hungary was not willing to continue to comply with its
treaty obligations, and the Hungarian Government decided on 20 December
1990, that
"The responsible ministers and the Governmental Plenipotentiary should start
negotiations with the Government of the Czechoslovak Federal Republic on the
termination of the 1977 Treaty by mutual consent and on the conclusion of a
treaty addressing the conse-quences of the termination." (The Hungarian
Parliament ratified this decision on 16 April 1991 Memorial of Hungary,
Vol. 4, Ann. 153, p. 366, and Ann. 154, p. 368.)
5. As is acknowledged in the Judgment (see para. 72), the position adopted
by Hungary made the situation very difficult for Czechoslovakia, not only
because of the huge sums invested so far, but also because of the
environmental consequences of leaving unfinished and useless the
constructions already in place and, in some sections of the barrage system,
almost complete.
6. Besides, it is easy to understand the impossibility for the Czechoslovak
Government to justify the petition of substantial amounts of money necessary
to minimize the environmental damage and degradation of the region, in the
event that the existing constructions were left in their unfinished state,
as described by the Czechoslovak Federal Committee for [p228] Environment
in its "Technical-Economic Study on Removal of the Water Work Gabcikovo with
the Technique of Reclaiming the Terrain", dated July 1992 (Reply of
Slovakia, Vol. II, Ann. 3).
7. For these reasons, Czechoslovakia decided to finish the works that
Hungary had yet to complete in Czechoslovak territory, according to the 1977
Treaty, i.e., the construction of the tailrace canal of the bypass canal and
of a connecting dyke from this canal to the site of the Danube's damming
close to the Dunakiliti weir (Art. 5, para. 5(b), of the 1977 Treaty).
Considering Hungary's refusal to finish the constructions it had begun, in
my opinion the decision taken by Czechoslovakia was lawful, because the 1977
Treaty was in force between the parties, and Czechoslovakia took over
Hungary's role in order to guarantee the achievement of its object and
purpose.
8. There were some other works under Hungarian responsibility to be finished
in Hungarian territory, and Czechoslovakia could not finish them without
violating the territorial sovereignty of Hungary, unless Hungary gave its
consent for the completion. Since Hungary had decided to negotiate only the
termination of the 1977 Treaty, there was no possibility of obtaining its
authorization in order to finish those constructions already started.
9. Faced with this situation, which came into existence because of the
internationally wrongful acts committed by Hungary by violating its
obligations under the 1977 Treaty, in my opinion Czechoslovakia was entitled
to take the necessary action, not only to realize its object and purpose,
but also to solve, in the best possible way, the ecological and economic
problems caused by the unfinished constructions. Therefore, Czechoslovakia
was legally justified in adopting the "provisional solution" referred to in
Article 2, paragraph 1 (b), of the Special Agreement (hereinafter "Variant
C"), i.e., a temporary solution that could be reversed as soon as Hungary
resumed compliance with its obligations under the 1977 Treaty.
10. This temporary character was established by the European
Communities-Czechoslovakia-Hungary Report of the Working Group of
Independent Experts on Variant C of the Gabcikovo-Nagymaros Project, dated
23 November 1992, where it is stated that:
"In principle, the ongoing activities with Variant C could be reversed. The
structures, excluding some of the underground parts like sheet piling and
injections, could in theory be removed. The cost of removing the structures
are roughly estimated to at least 30 per cent of the construction costs."
(Memorial of Hungary, Vol. 5, Part II, Ann. 14, p. 434.)[p229]
11. Variant C provided for the construction of a weir complex at Cunovo, 10
kilometres up from Dunakiliti (as originally planned), with a reservoir of
reduced proportions behind, and for a new section of dykes connecting the
weir with the bypass canal and the right-side dyke on Czechoslovak
territory. Furthermore, the Danube had to be dammed; the Project had to be
put into operation, and some other ancillary structures at Cunovo were to
be completed, such as navigation locks and a hydroelectric power plant.
12. Hungary has pointed out that those are not the only differences between
Variant C and the 1977 Treaty Project, because Variant C is not operated
jointly and because Hungary was never informed, even less consulted, by
Czechoslovakia as to its specifications and all other technical details,
before and during its construction and putting into operation.
13. The Judgment follows those arguments. It remarks that
"the basic characteristic of the 1977 Treaty is, according to Article 1, to
provide for the construction of the Gabcikovo-Nagymaros System of Locks as a
joint investment constituting a single and indivisible operational system of
works";
and that this
"element is equally reflected in Articles 8 and 10 of the Treaty providing
for joint ownership of the most important works of the Gabcikovo-Nagymaros
project and for the operation of this joint project as a co-ordinated single
unit".
Then it concludes:
"By definition, all this could not be carried out by unilateral action. In
spite of having a certain external physical similarity with the original
Project, Variant C thus differed sharply from it in its legal
characteristics." (See para. 77.)
14. The aforementioned conclusion overlooks the fact that Czechoslovakia
did not exclude Hungary from the Project; on the contrary, Hungary excluded
itself of its own volition and violated the obligations imposed upon it by
the 1977 Treaty. Information, consultation, joint operation and joint
control only make sense if Hungary were willing to cooperate but, at that
time, Hungary would only consider the termination of the 1977 Treaty.
Therefore, the existing differences were the direct consequence of the
attitude assumed by Hungary in respect of the 1977 Treaty, and should be
considered consistent with the requirement set up by the Judgment, because
they are "within the limits of the treaty" (see para. 76).
15. In my opinion, as stated before, Czechoslovakia was entitled to proceed
as it did. The conduct of Czechoslovakia may not be characterized as an
internationally wrongful act, notwithstanding the differences between
Variant C and the 1977 Treaty; Variant C can be justified [p230] because of
the right of Czechoslovakia to put into effect the 1977 Treaty as best it
could, when Hungary violated its treaty obligations.
16. Even though Variant C could be characterized as an internationally
wrongful act, Czechoslovakia was entitled to take countermeasures as a
reaction to Hungary's violation of its obligations under the 1977 Treaty in
suspending and later abandoning the works at Nagymaros and Gabcikovo.
Article 30 of the International Law Commission's Draft on State
Responsibility, which codifies general international law, provides:
"The wrongfulness of an act of a State not in conformity with an obligation
of that State toward another State is precluded if the act constitutes a
measure legitimate under international law against that other State, in
consequence of an internationally wrongful act of that other State."
17. All the conditions required by Article 30 of the International Law
Commission's Draft on State Responsibility are met in the present case.
Variant C was conceived as a provisional and reversible solution (see para.
10 above), which may be explained as an attempt to induce Hungary to comply
with its 1977 Treaty obligations and it cannot be considered a
disproportionate reaction. Therefore, even assuming that the construction
and the putting into operation of Variant C could be characterized as an
internationally wrongful act committed by Czechoslovakia, its wrongfulness
would be precluded because is was a legitimate countermeasure.
18. The Judgment takes a different view and
"considers that Czechoslovakia, 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 with the
continuing effects of the diversion of these waters on the ecology of the
riparian area of the Szigetkoz failed to respect the proportionality which
is required by international law" (see para. 85).
19. However, "the withdrawal of water from the Danube" is regulated by
Article 14 of the 1977 Treaty. Not only Article 14 but also all the Treaty
provisions that may support the conduct of Czechoslovakia, continued by
Slovakia, have to be applied to determine whether or not it was lawful,
since the Judgment acknowledges that the 1977 Treaty and related instruments
are in force between the parties.
20. In my opinion, it is not necessary to choose between the aforementioned
grounds to justify the action undertaken by Czechoslovakia, continued by
Slovakia, because the juridical consequences are the same, i.e., the
building and putting into operation of Variant C was not an interna-[p231]
tionally wrongful act committed by Czechoslovakia; and Slovakia, as its sole
successor State, has not committed any internationally wrongful act in
operating Variant C to date.
II
21. A substantial number of Judges, myself among them, asked for a separate
vote on each of the two issues included in paragraph 2, point D, of the
operative part of the Judgment. However, the majority decided, severely
curtailing freedom of expression, to force a single vote on both questions,
based upon obscure reasons which are supposed to be covered by the
confidentiality of the deliberations of the Court.
22. Since there was no other choice left, I reluctantly decided to vote in
favour of paragraph 2, point D, notwithstanding my opinion that the building
and putting into operation of Variant C was not an internationally wrongful
act committed by Czechoslovakia; and that Slovakia, as its sole successor
State, has not committed any internationally wrongful act in maintaining its
operation to date. My decision can only be explained as a way out of the
dilemma confronted by me because of the determination adopted by the
majority of the Court, in a very peculiar way, and shall be understood
within the context of the 1977 Treaty, and related instruments, i.e. by
applying Article 14, paragraph 3, of the 1977 Treaty, in the event "that the
withdrawal of water exceeds the quantities of water specified in the water
balance of the approved joint contractual plan". However, in principle,
Slovakia shall not compensate Hungary on account of the putting into
operation of Variant C by Czechoslovakia and by its maintenance in service
by Slovakia, unless a manifest abuse of rights on its part is clearly
evidenced.
23. In my opinion, paragraph 2, point A, of the operative part of the
Judgment should not have been included, because the succession of Slovakia
to the 1977 Treaty was neither a question submitted to the Court in the
Special Agreement nor is it a legal consequence arising out of the decision
of the questions submitted by the Parties in its Article 2, paragraph 1.
Furthermore, the answer of the Court is incomplete since nothing is said
with respect to the "related instruments" to the 1977 Treaty; and it does
not take into consideration the position adopted by the dissenting judges
who maintained that the 1977 Treaty was no longer in force.
(Signed) Gonzalo PARRA-ARANGUREN.
[p232]
DISSENTING OPINION OF JUDGE SKUBISZEWSKI
1. While agreeing with the Court in all its other holdings, I am unable to
concur in the broad finding that Czechoslovakia was not entitled to put
Variant C into operation from October 1992 (Judgment, para. 155, point 1 C).
The finding is too general. In my view the Court should have distinguished
between, on the one hand, Czechoslovakia's right to take steps 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, especially in the period
preceding the conclusion of the 1995 Agreement (Judgment, para. 25).
I
2. In proposing to Czechoslovakia the revision of the Treaty, Hungary, for
some time, did not exclude the possibility of an arrangement that would
maintain, in one form or another, the System of Locks (Article 1 of the
Treaty). But the subsequent abandonment of the works was a clear indication
of where Hungary was heading. Even when it first proposed a postponement of
the works it was aiming at abolishing the Project. That was the heart of the
matter. On 22 May 1990, the Prime Minister of the newly democratic Hungary
put it in a nutshell by describing the whole Project as "a mistake"
(Memorial of Hungary, Vol. 1, p. 64, para. 3.110). Hungary wanted to
extricate itself from that "mistake". This is the basic fact of the case.
The mass of scientific and technological information that has been
submitted to the Court and the maze of legal argumentation should not cause
that basic fact to be lost: it was Hungary, and Hungary alone, which, from a
certain moment on, followed a policy of freeing itself from the bonds of
the Treaty. Czechoslovakia, on its part, insisted on the implementation of
the Treaty, though it was ready to adopt a flexible attitude with regard to
some aspects of the operation of the System of Locks, for example with
regard to the limitation or exclusion of the peak power operation mode or
the objectively verified environmental needs.
3. This difference in the stance and the actions of the two Parties with
regard to the Treaty should not be blurred. To simply say that, in fact, the
two contracting States (and not only one of them, i.e., Hungary) conformed
to rules other than those laid down by the Treaty does not cor-[p233]respond to legal reality. In particular, chronology cannot be dismissed
as irrelevant. Hungarian doubts and reservations about and, finally,
Hungary's withdrawal from the Project have not only preceded Variant C, but
constituted its cause. Without an earlier suspension and abandonment of the
works by Hungary there would have been no Variant C. Nor can it be said that
Variant C excluded Hungary from the Project. The fact is that Hungary
excluded itself, having lost all interest in the maintenance of the
Project. Also, Czechoslovakia and subsequently Slovakia were prepared to
co-operate with Hungary in respect of Variant C which they regarded as a
provisional solution.
4. The documentation submitted in these proceedings does not support the
view that the two States actually displayed the same intention of
withdrawing from the Treaty. Prior to and also after the Hungarian
declaration of termination, Czechoslovakia did not express any such
inten-tion. Variant C maintained some important aims of the joint
investment: production of energy, flood prevention, and improvement of
navigation. Where it deviated from the Project, it did not put any
definitive bar to a return to the original concept of the Treaty. There was
no tacit consent to the extinction of the Treaty on the part of
Czechoslovakia. That country no longer exists, but Slovakia (as its
successor) still postulates the implementation of the Treaty (Judgment,
para. 14).
5. When Czechoslovakia and Hungary were negotiating and concluding their
Treaty, they knew very well what they were doing. They made a conscious
choice. A joint investment of such proportions inevitably entails some
changes in the territories of the countries involved, including an impact on
the environment. In particular, the two States were facing the dichotomy of
socio-economic development and preservation of nature. Articles 15, 19 and
20 show that the two States paid attention to environmental risks and were
willing to meet them. In the 1970s, when the Treaty was being negotiated,
the state of knowledge was sufficient to permit the two partners to assess
the impact their Project would have on the various areas of life, one of
them being the environment. The number of studies was impressive indeed. The
progress of science and knowledge is constant; thus, with regard to such a
project, that progress becomes a reason for adaptation and, consequently,
for entering into negotiations, no matter how long and difficult.
6. By its unilateral rejection of the Project, Hungary has precluded itself
from asserting that the utilization of the hydraulic force of the Danube
was dependent on the condition of a prior agreement between it and
Czechoslovakia (and subsequently Slovakia). For this is what the Treaty was
and is about: mutual regulation of the national competence of each riparian
State, in particular, to use the hydraulic force of the river. Mutual rights
and obligations have been created under the Treaty, but [p234] during the
period 1989 to 1992 Hungary progressively repudiated them. It thus created
an estoppel situation for itself.
II
7. The withdrawal of Hungary from the Project left Czechoslovakia with the
possibility of doing on its territory what it was allowed to do by general
law. In the circumstances of the dispute submitted to the Court action based
on general law does not derogate from the binding force of the Treaty. The
shift onto the plane of general law results from the Hungarian rejection of
the Project. There was, actually, no "single and indivisible operational
system of works" (Art. 1, para. 1, of the 1977 Treaty) in which first
Czechoslovakia and subsequently Slovakia could participate. The conduct of
Hungary led to a factual situation which, as long as it lasted, prevented
the implementation of binding agreements. A full application of the Treaty
required bilateral action. Thus, for the time being, the treaty relationship
of the two States found itself in a state of abeyance or inactivity. As the
objectives of the Treaty did not disappear, a temporary solution would be
based on general law and equity, until there was a return to the bilateral
enforcement of the Treaty. That is the essence of the concept of the
Czechoslovak "provisional solution", main-tained by Slovakia.
8. In the present case one should draw a distinction between, on the one
hand, the "provisional solution" which, as a whole, is lawful, especially
under the existing circumstances (i.e., the advanced stage of completion of
the works on Czechoslovak territory at the beginning of the 1990s), and, on
the other, one element of the implementation of that solution that calls for
redress and remedy; that element is the sharing of the waters of the Danube.
It is not enough to dismiss the Slovak arguments (that is, the principle of
approximate application; the duty to miti-gate damages; and, as a
possibility, the plea of countermeasures, Judgment, paras. 75-87). The
situation is more complex. A legal evaluation of Variant C cannot be limited
to the Treaty alone. As a result of Hungarian action, the implementation of
the Treaty became paralysed. Czecho-slovakia responded by putting into
effect its "provisional solution". In the proceedings before the Court
Slovakia's emphasis was on what I would term as the Treaty approach. But
Slovakia has also referred, though in a somewhat subsidiary manner, to
general law. Under that law, as applied by the Court, Slovakia bears
responsibility for withholding from Hungary that part of the Danube's
waters to which the latter was entitled. By saying that Hungary did not
forfeit "its basic right to an equitable and reasonable sharing of the
resources of an international watercourse" the Court applies general law
(Judgment, para. 78). The Court likewise applies general law (cf. para. 85)
when, in particular, it refers to the concept of the "community of interest
in a navigable river", as explained by the Permanent Court in the case
relating to the Terrilo-[p235] rial Jurisdiction of the International
Commission of the River Oder, (Judgment No. 16, 1929, P.C.I.J., Series A,
No. 23, p. 27). The canon of an equitable and reasonable utilization figures
prominently in the recent United Nations Convention on the Law of the
Non-Navigational Uses of International Watercourses, especially in its
general principles (Arts. 5-10).
9. The Award in the case of Lake Lanoux between Spain and France states the
law which is relevant to the evaluation of Variant C, though for various
reasons that case must be distinguished from the case before the Court. In
the Lake Lanoux case, the Arbitral Tribunal considered the question whether
the French development scheme for Lake Lanoux (involving the diversion of
waters) required, for its execution, a prior agreement between the two
Governments, in the absence of which the country proposing the scheme would
not have freedom of action to undertake the works (Reports of International
Arbitral Awards (RIAA ), Vol. XII, p. 306, para. 10; International Law
Reports (ILR), Vol. 24, 1957, p. 127, para. 10).
10. The Tribunal said:
"In effect, in order to appreciate in its essence the necessity for prior
agreement, one must envisage the hypothesis in which the interested States
cannot reach agreement. In such case, it must be admitted that the State
which is normally competent has lost its right to act alone as a result of
the unconditional and arbitrary opposition of another State. This amounts to
admitting a 'right of assent', a 'right of veto', which at the discretion of
one State paralyses the exercise of the territorial jurisdiction of
another.
That is why international practice prefers to resort to less extreme
solutions by confining itself to obliging the States to seek, by
preliminary negotiations, terms for an agreement, without subordinating the
exercise of their competences to the conclusion of such an agreement. Thus,
one speaks, although often inaccurately, of the 'obligation of negotiating
an agreement'. In reality, the engagements thus undertaken by States take
very diverse forms and have a scope which varies according to the manner in
which/they are defined and according to the procedures intended for their
execution; but the reality of the obligations thus undertaken is
incontestable and sanctions can be applied in the event, for example, of an
unjustified breaking off of the discussions, abnormal delays, disregard of
the agreed procedures, systematic refusals to take into consideration
adverse proposals or interests, and, more generally, in cases of violation
of the rules of good faith (Tacna-Arica Arbitration: Reports of
International Arbitral Awards, Vol. II, pp. 921 et seq.; Case of Railway
Traffic between Lithuania and Poland: Advisory Opinion, 1931, P.C.I.J.,
Series A/B, No. 42, pp. 108 et seq.)." (RIAA, Vol. XII, p. 306, para. 11;
ILR, Vol. 24, 1957, p. 128, para. 11; footnotes omitted.) [p236]
Czechoslovakia has fulfilled its obligation to negotiate a revision of the
Treaty. But a revision is something different from the refusal to implement
that Treaty. Faced with such a refusal on the part of Hungary Czechoslovakia
could act alone, without any prior consent by Hungary, while respecting the
latter's right to an equitable and reasonable share of the Danube's waters.
But in evaluating whether Czechoslovakia has respected that right one must
not forget that the said share has increased in 1995, and that the water
appropriated by Czechoslovakia and subsequently used by Slovakia does not
serve Slovakia's interests alone, but also Hungary's. The operation of
Variant C improved navigation on the Danube and enhanced flood protection.
11. In the Lake Lanoux case the Tribunal expressed its position on the right
of each riparian State to act unilaterally in the following terms:
"In fact, States are today perfectly conscious of the importance of the
conflicting interests brought into play by the industrial use of
international rivers, and of the necessity to reconcile them by mutual
concessions. The only way to arrive at such compromises of interests is to
conclude agreements on an increasingly comprehensive basis. International
practice reflects the conviction that States ought to strive to conclude
such agreements: there would thus appear to be an obligation to accept in
good faith all communications and contracts which could, by a broad
comparison of interests and by reciprocal good will, provide States with
the best conditions for concluding agreements. . . .
But international practice does not so far permit more than the following
conclusion: the rule that States may utilize the hydraulic power of
international watercourses only on condition of a prior agreement between
the interested States cannot be established as a custom, even less as a
general principle of law. The history of the formulation of the multilateral
Convention signed at Geneva on December 9, 1923, relative to the Development
of Hydraulic Power Affecting More than One State, is very characteristic in
this connection. The initial project was based on the obligatory and
paramount character of agreements whose purpose was to harness the hydraulic
forces of international watercourses. But this formulation was rejected,
and the Convention, in its final form, provides (Article I) that '[it] in no
way alters the freedom of each State, within the framework of international
law, to carry out on its territory all operations for the development of
hydraulic power which it desires'; there is provided only an obligation upon
the interested signatory States to join in a common study of a development
programme; the execution of this programme is obligatory only for those
States which have formally subscribed to it." (RIAA, Vol. XII, p. 308, para.
13; ILR, Vol. 24, 1957, p. 129, para. 13; footnote omitted.) [p237]
I think that the Court would agree that this is an exact statement of
general law. That law is applicable in the present case. Czechoslovakia had
the right to put the Gabcikovo complex into operation. It also had the duty
to respect Hungary's right to an equitable and reasonable share of the
waters of the Danube.
12. In rejecting, in the Lake Lanoux case, the necessity of a prior
agreement between the interested States on the utilization of the hydraulic
power of international watercourses the Tribunal referred to the "most
general principles of international law" according to which:
"It is for each State to evaluate in a reasonable manner and in good faith
the situations and the rules which will involve it in controversies; its
evaluation may be in contradiction with that of another State; in that case,
should a dispute arise the Parties normally seek to resolve it by
negotiation or, alternatively, by submitting to the authority of a third
party; but one of them is never obliged to suspend the exercise of its
jurisdiction because of the dispute except when it assumes an obligation to
do so; by exercising its jurisdiction it takes the risk of seeing its
international responsibility called into question, if it is established that
it did not act within the limits of its rights." (RIAA, Vol. XII, p. 310,
para. 16; ILR, Vol. 24, 1957, p. 132, para. 16.)
13. This seemed to be, mutatis mutandis, the position of Czechoslovakia. It
could act, but it had to respect certain rights of Hungary. In the Lake
Lanoux case, the Tribunal said that, carrying matters to extremes, the
requirement of prior agreement
"would imply either the general paralysis of the exercise of State
jurisdiction whenever there is a dispute, or the submission of all
disputes, of whatever nature, to. the authority of a third party;
international practice does not support either the one or the other of
these consequences" (loc. cit.).
14. Concerning the said possibility of a unilateral suspension of works the
Tribunal added:
"Further, in order for negotiations to proceed in a favourable climate, the
Parties must consent to suspend the full exercise of their rights during the
negotiations. It is normal that they should enter into engagements to this
effect. If these engagements were to bind them unconditionally until the
conclusion of an agreement, they would, by signing them, lose the very right
to negotiate; this cannot be presumed.
It is important to keep these considerations in mind when drawing legal
conclusions from diplomatic correspondence." (RIAA, Vol. XII, p. 311, para.
18; ILR, Vol. 24, 1957, p. 134, para. 18.) [p238]
15. Finally, it is worthwhile to note the following statement of the
Tribunal:
"France is entitled to exercise her rights; she cannot ignore Spanish
interests.
Spain is entitled to demand that her rights be respected and that her
interests be taken into consideration.
As a matter of form, the upstream State has, procedurally, a right of
initiative; it is not obliged to associate the downstream State in the
elaboration of its schemes. If, in the course of discussions, the
downstream State submits schemes to it, the upstream State must examine
them, but it has the right to give preference to the solution contained in
its own scheme provided that it takes into consideration in a reasonable
manner the interests of the downstream State." (RIAA, Vol. XII, p. 316,
para. 23; ILR, Vol. 24, 1957, p. 140, para. 23.)
III
16. In paragraph 72 of its Judgment the Court makes clear that it is aware
of the serious problems with which Czechoslovakia was confronted as a
result of Hungary's action. That is another reason for distinguishing
between various elements of Variant C. Having said what it did the Court
should have made a step further and applied equity as part of international
law. It would then have arrived at a holding that would have given more
nuance to its decision.
17. In the case relating to the Diversion of Water from the Meuse Judge
Hudson observed:
"It would seem to be an important principle of equity that where two parties
have assumed an identical or a reciprocal obligation, one party which is
engaged in a continuing non-performance of that obligation should not be
permitted to take advantage of a similar non-performance of that obligation
by the other party.
The general principle is one of which an international tribunal should make
a very sparing application. It is certainly not to be thought that a
complete fulfilment of all its obligations under a treaty must be proved as
a condition precedent to a State's appearing before an international
tribunal to seek an interpretation of that treaty. Yet, in a proper case,
and with scrupulous regard for the limitations which are necessary, a
tribunal bound by international law ought not to shrink from applying a
principle of such obvious fair-ness." (P.C.I.J., Series A/B, No. 70.
Judgment, 1937, p. 77.)
18. The foregoing quotation does not mean that one may close one's eyes to
the differences between the Diversion of Water from the Meuse case and the
present case. According to Judge Hudson the two locks (i.e., the one
operated by the Netherlands and the one operated by Belgium) [p239] were in
law and in fact in the same position. "This seems to call for an application
of the principle of equity stated above" (P.C.I. J., Series A/B, No. 70,
Judgment, 1937, p. 78). But the more complex facts in the present case do
not by themselves eliminate the relevance of the learned judge's opinion.
19. The impossible situation in which Hungarian action put Czechoslovakia
speaks strongly in favour of the application of equitable principles by the
Court in evaluating Variant C. For "[ejquity as a legal concept is a direct
emanation of the idea of justice. . . . [T]he legal concept of equity is a
general principle directly applicable as law" (Continental Shelf
(Tunisia/Libyan Arab Jamahiriya), Judgment, l.C.J. Reports 1982, p. 60,
para. 71). The Court's "decisions must by definition be just, and therefore
in that sense equitable" (North Sea Continental Shelf Judgment, I.C.J.
Reports 1969, pp. 48-49, para. 88). "[A]n equitable solution derivefs] from
the applicable law" (Fisheries Jurisdiction, Merits, Judgment, I.C.J.
Reports 1974, p. 33, para. 78; p. 202, para. 69). Both "the result to be
achieved and the means to be applied to reach the result" must be equitable.
"It is, however, the result which is predominant; the principles are
subordinate to the goal" (Continental Shelf (Tunisia/ Libyan Arab
Jamahiriya), Judgment, I.C.J. Reports ‘982, p. 59, para. 70).
20. In its resolution of 1961 on the utilization of non-maritime
international waters the Institute of International Law has stated (Art.
3):
"If the States are in disagreement over the scope of their rights of
utilization [of the said waters], settlement will take place on the basis of
equity, taking particular account of their respective needs, as well as of
other pertinent circumstances." (Annuaire de ‘'Instituν de droiν
inνernaνional, 1961, Vol. II, p. 382.)
21. The degree to which Czechoslovakia has implemented the Treaty has
reached such proportions that it would be both unreasonable and harmful to
stop the completion of certain works and to postpone indefinitely the
operation of the bypass canal, the Gabcikovo hydroelectric power plant,
navigation locks and appurtenances thereto, in so far as that operation was
possible without Hungarian co-operation or participation. To find, as the
Court does, that such operation is unlawful overlooks the considerations of
equity. At the same time Hungary's right under general international law to
an equitable and reasonable sharing of the waters of the Danube had to be
preserved notwithstanding its repudiation of the Project and the Treaty.
IV
22. A State that concluded a treaty with another State providing for the
execution of a project like Gabcikovo-Nagymaros cannot, when that project is
near completion, simply say that all should be cancelled and the [p240]
only remaining problem is compensation. This is a situation where,
especially under equitable principles, the solution must go beyond mere
pecuniary compensation. The Court has found that the refusal by Hungary to
implement the Treaty was unlawful. By breaching the Treaty, Hungary could
not deprive Czechoslovakia and subsequently Slovakia of all the benefits of
the Treaty and reduce their rights to that of compensation. The advanced
stage of the work on the Project made some performance imperative in order
to avoid harm: Czechoslovakia and Slovakia had the right to expect that
certain parts of the Project would become operational.
23. Thus, pecuniary compensation could not, in the present case, wipe out
even some, not to speak of all, of the consequences of the abandonment of
the Project by Hungary. How could an indemnity compensate for the absence of
flood protection, improvement of navigation and production of electricity?
The attainment of these objectives of the 1977 Treaty was legitimate not
only under the Treaty but also under general law and equity. The benefits
could in no way be replaced and compensated by the payment of a sum of
money. Certain works had to be established and it was vital that they be
made operational. For the question here is not one of damages for loss
sustained, but the creation of a new system of use and utilization of the
water.
24. Once a court, whether international or municipal, has found that a duty
established by a rule of international law has been breached, the subject to
which the act is imputable must make adequate reparation. The finding in
point 2 D of the operative paragraph is the consequence of the holdings in
point 1. Absence of congruence between the vote on one or more of the
findings in point 1 and the vote on point 2 D should be explained in order
that any implication of an uncertainty regarding the foregoing principle on
reparation may be eliminated.
25. The formulation of the finding in point 1 C of the operative paragraph
does not correspond to the possibility of different evaluations concerning
the various elements of the "provisional solution". There is equally no
reflection of that possibility in the formulation of the finding in point 2
D. Indeed, the terms of that point made the position of those judges who
voted against point 1 C quite difficult. The same applies to point 2 D when
a judge does not agree with all the findings in point 1, though I think that
there is a way out of this difficulty.
26. It is on the basis of the position taken in this dissenting opinion that
I have voted in favour of the finding in point 2 D. However, there is a
further reason which made it possible for me to accept that finding. That
reason is linked to the task of the Court under Article 2, paragraph 2, of
the Special Agreement and the ensuing negotiations of the [p241] Parties on
the modalities of the execution of the Judgment (Art. 5, para. 2). My
understanding of point 2 D of the operative paragraph is that the
enforcement of responsibility and the obligation to compensate, though
elaborated upon by the Court in the part of the Judgment devoted to Article
2, paragraph 2, of the Special Agreement (paras. 148151) need not be a
primary factor in the negotiations on the future of the Gabcikovo-Nagymaros
Project. It should be noted that the said finding refers to the issue of
compensation in rather general terms. At the same time the Court gives its
support to what I would describe as the "zero option" (para. 153 of the
Judgment). In my view the underlying message of point 2 D to the negotiating
Governments is that, notwithstanding their legal claims and counterclaims
for compensation, they should seek and find a common solution.
(Signed) Krzysztof SKUBISZEWSKI. |
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