Gabčikovo-Nagymaros Project, Hungary v Slovakia, Judgment, Merits, ICJ GL No 92,  ICJ Rep 7,  ICJ Rep 88, (1998) 37 ILM 162, ICGJ 66 (ICJ 1997), 25th September 1997, International Court of Justice [ICJ]
- Stephen M Schwebel (President); Christopher Gregory Weeramantry (Vice-President); Shigeru Oda; Mohammed Bedjaoui; Gilbert Guillaume; Raymond Ranjeva; Géza Herczegh; Shi Jiuyong; Carl–August Fleischhauer; Abdul G Koroma; Vladlen Stepanovich Vereshchetin; Gonzalo Parra–Aranguren; Pieter H Kooijmans; Francisco Rezek; Krysztov Skubiszewski (Judge ad hoc)
- Procedural Stage:
- Judgment, Merits
- Rivers — Estoppel — State succession, international agreements — Treaties, breach — Treaties, fundamental change of circumstances — Treaties, interpretation — Treaties, invalidity, termination, suspension, withdrawal — Customary international law
- Core Issue(s):
- Whether, in 1989, Hungary was entitled to suspend and subsequently abandon the works on the Gabčikovo–Nagymaros project for which the Treaty on the Construction and Operation of the Gabčikovo–Nagymaros Barrage System attributed responsibility to Hungary.
- Whether the 1977 Treaty was ever in force between Hungary and Slovakia.
- Whether, in November 1991, the Czech and Slovak Federal Republic was entitled to proceed to the ‘provisional solution’ of damming the Danube River on Czechoslovak territory, which caused downriver effects on water and navigation courses.
- What the legal effects were of Hungary's notification on 19 May 1992 of its termination of the 1977 Treaty.
Decision - full text
Present: President Schwebel; Vice–President Weeramantry; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Parra–Aranguren, Kooijmans, Rezek; Judge ad hoc Skubiszewski; Registrar Valencia–Ospina.
In the case concerning the Gabčíkovo–Nagymaros Project,
the Republic of Hungary,
H.E. Mr. György Szénási, Ambassador, Head of the International Law Department, Ministry of Foreign Affairs,
as Agent and Counsel;
H.E. Mr. Dénes Tomaj, Ambassador of the Republic of Hungary to the Netherlands,
Mr. James Crawford, Whewell Professor of International Law, University of Cambridge,
Mr. Pierre–Marie Dupuy, Professor at the University Panthéon–Assas (Paris II) and Director of the Institut des hautes études internationales of Paris,
Mr. Alexandre Kiss, Director of Research, Centre national de la recherche scientifique (retd.),
Mr. László Valki, Professor of International Law, Eötvös Loránd University, Budapest,
Mr. Boldizsár Nagy, Associate Professor of International Law, Eötvös Loránd University, Budapest,
Mr. Philippe Sands, Reader in International Law, University of London, School of Oriental and African Studies, and Global Professor of Law, New York University,
Ms Katherine Gorove, consulting Attorney,
as Counsel and Advocates;
Dr. Howard Wheater, Professor of Hydrology, Imperial College, London,
Dr. Gábor Vida, Professor of Biology, Eötvös Loránd University, Budapest, Member of the Hungarian Academy of Sciences,
Dr. Roland Carbiener, Professor emeritus of the University of Strasbourg,
Dr. Klaus Kern, consulting Engineer, Karlsruhe,
Mr. Edward Helgeson,
Mr. Stuart Oldham,
Mr. Péter Molnár,
Dr. György Kovács,
Mr. Timothy Walsh,
Mr. Zoltán Kovács,
as Technical Advisers;
Dr. Attila Nyikos,
Mr. Axel Gosseries, LL.M.,
Ms Éva Kocsis,
Ms Katinka Tompa,
the Slovak Republic,
H.E. Dr. Peter Tomka, Ambassador, Legal Adviser of the Ministry of Foreign Affairs,
Dr. Václav Mikulka, Member of the International Law Commission,
as Co–Agent, Counsel and Advocate;
Mr. Derek W. Bowett, C.B.E., Q.C., F.B.A., Whewell Professor emeritus of International Law at the University of Cambridge, former Member of the International Law Commission,
Mr. Stephen C. McCaffrey, Professor of International Law at the University of the Pacific, McGeorge School of Law, Sacramento, United States of America, former Member of the International Law Commission,
Mr. Alain Pellet, Professor at the University of Paris X–Nanterre and at the Institute of Political Studies, Paris, Member of the International Law Commission,
Mr. Walter D. Sohier, Member of the Bar of the State of New York and of the District of Columbia,
Sir Arthur Watts, K.C.M.G., Q.C., Barrister, Member of the Bar of England and Wales,
Mr. Samuel S. Wordsworth, avocat à la cour d'appel de Paris, Solicitor of the Supreme Court of England and Wales, Frere Cholmeley, Paris,
as Counsel and Advocates;
Mr. Igor Mucha, Professor of Hydrogeology and Former Head of the Groundwater Department at the Faculty of Natural Sciences of Comenius University in Bratislava,
Mr. Karra Venkateswara Rao, Director of Water Resources Engineering, Department of Civil Engineering, City University, London,
Mr. Jens Christian Refsgaard, Head of Research and Development, Danish Hydraulic Institute,
as Counsel and Experts;
Dr. Cecilia Kandráčová, Director of Department, Ministry of Foreign Affairs,
Mr. Ludék Krajhanzl, Attorney at Law, Vyroubal Krajhanzl Skácel and Partners, Prague,
Mr. Miroslav Liška, Head of the Division for Public Relations and Expertise, Water Resources Development State Enterprise, Bratislava,
Dr. Peter Vršansky, Minister–Counsellor, Chargé d'affaires a.i., of the Embassy of the Slovak Republic, The Hague,
Miss Anouche Beaudouin, allocataire de recherche at the University of Paris X–Nanterre,
Ms Cheryl Dunn, Frere Cholmeley, Paris,
Ms Nikoleta Glindová, attaché, Ministry of Foreign Affairs,
Mr. Drahoslav Štefánek, attaché, Ministry of Foreign Affairs,
as Legal Assistants,
composed as above,
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 Chargé 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:
“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 Gabčíkovo–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 Gabčíkovo–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 Gabčíkovo–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 régime 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:
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.
(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 Gabčíkovo 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 coufse);
(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.
(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;
(1) The Parties agree that, pending the final Judgment of the Court, they will establish and implement a temporary water management régime for the Danube.
(2) They further agree that, in the period before such a régime 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.
(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.
(1) The present Special Agreement shall be subject to ratification.
(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 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. Szénási,
For Slovakia: H.E. Dr. Tomka,
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.
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 Gabčíkovo 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 kilometre 1851.7 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 Gabčíkovo–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.”
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 Gabčíkovo/ 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 Gabčíkovo 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 Gabčíkovo/Nagymaros System of Locks and related instruments, concluded between Hungary and 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 Gabčíkovo 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 Gabčíkovo–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 Malý Danube and to the south–west, in Hungarian territory, by the Mosoni Danube. The boundary between the two States is constituted, in the major part of that region, by the main channel of the river. The area lying between the Malý Danube and that channel, in Slovak territory, constitutes the Žitný Ostrov; the area between the main channel and the Mosoni Danube, in Hungarian territory, constitutes the Szigetköz. Cunovo and, further downstream, Gabčíkovo, are situated in this sector of the river on Slovak territory, Čunovo on the right bank and Gabčíkovo 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, p. 19 below).
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 régime.
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 Gabčíkovo (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, p. 21 below). 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 Gabčíkovo 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:
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
Article 4, paragraph 4, stipulated that:
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 Gabčíkovo 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,
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
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:
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:
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.
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 Gabčíkovo bypass canal would have a discharge capacity of 4,000 cubic metres per second (m3/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 peakload time operation of the Gabčíkovo 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 m3/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 m3/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 Gabčíkovo, for an installed power only equal to 21 per cent of that of Gabčíkovo).
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 Gabčíkovo.
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 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, p. 26 below). In its final stage, Variant C included the construction at Cunovo of an overflow dam and a levee linking that dam to the south bank of the bypass canal. The corresponding reservoir was to have a smaller surface area and provide approximately 30 per cent less storage than the reservoir initially contemplated. Provision was made for ancillary works, namely: an intake structure to supply the Mosoni Danube; a weir to enable, inter alia, floodwater to be directed along the old bed of the Danube; an auxiliary shiplock; and two hydroelectric power plants (one capable of an annual production of 4 GWh on the Mosoni Danube, and the other with a production of 174 GWh on the old bed of the Danube). The supply of water to the side–arms of the Danube on the Czechoslovak bank was to be secured by means of two intake structures in the bypass canal at Dobrohošt' and Gabčíkovo. 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 Gabčíkovo 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 transmitted1977 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 Gabčíkovo–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 régime for the Danube.” However, this régime could not easily be settled. The filling of the Čunovo 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”, on 19 April 1995. That Agreement raised the discharge of water into the Mosoni Danube to 43 m3/s. It provided for an annual average of 400 m3/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.
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26. The first subparagraph 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 subparagraph 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, subparagraphs (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 Gabčíkovo–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.
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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 Gabčíkovo Project for which the Treaty attributed responsibility to the Republic of Hungary”.
28. The Court would recall that the Gabčíkovo–Nagymaros System of Locks is characterized in Article 1, paragraph 1, of the 1977 Treaty as a “single and indivisible operational system of works”.
For Gabčíkovo, paragraph 2 lists the following works:
“(a) the Dunakiliti–Hrušov 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.”
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:
(4) the flood–control works of the Nagymaros head–water installations, in Czechoslovak territory, with the exception of the lower Ipel district;
(b) The Hungarian Party shall be responsible for:
(1) the Dunakiliti–Hrušov head–water installations on the right bank, in Czechoslovak territory, including the connecting weir and the diversionary weir;
(7) operational equipment of the Gabčíkovo 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;
(12) operational equipment of the Nagymaros system of locks (transport equipment, maintenance machinery), in Hungarian territory;
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 Gabčíkovo sector was well advanced: the Dunakiliti dam was 90 per cent complete, the Gabčíkovo dam was 85 per cent complete, and the bypass canal was between 60 per cent complete (downstream of Gabčíkovo) and 95 per cent complete (upstream of Gabčíkovo) and the dykes of the Dunakiliti–Hrušov 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 Gabčíkovo–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 wellfounded suggestions to the Parliament in connection with the amendment of the international treaty on the investment. In the interests of 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 Gabčíkovo 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 Gabčíkovo 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 Gabčíkovo–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 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 Gabčíkovo 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 Gabčíkovo–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 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 Gabčíkovo power plant and abandoning the construction of the Nagymaros dam. The draft provided for the conclusion of an agreement on the completion of Gabčíkovo 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 Gabčíkovo 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 Gabčíkovo–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 counter–part.
On the same day, the Czechoslovak President declared that the Gabčíkovo–Nagymaros Project constituted a “totalitarian, gigomaniac monument which is against nature”, while emphasizing that “the problem [was] that [the Gabčíkovo 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.
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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 Gabčíkovo–Nagymaros System of Locks had been designed to enable the Gabčíkovo 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 Gabčíkovo. 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 Gabčíkovo/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 sidearms. That volume could be increased to 200 m3/s during the growing season. Additional discharges, and in particular a number of artificial floods, could also be effected, at an unspecified rate. In these circumstances, the groundwater level would have fallen in most of the Szigetköz. Furthermore, the groundwater would then no longer have been supplied by the Danube — which, on the contrary, would have acted as a drain — but by the reservoir of stagnant water at Dunakiliti and the side–arms which would have become silted up. In the long term, the quality of water would have been seriously impaired. As for the surface water, risks of eutrophication would have arisen, particularly in the reservoir; instead of the old Danube there would have been a river choked with sand, where only a relative trickle of water would have flowed. The network of arms would have been for the most part cut off from the principal bed. The fluvial fauna and flora, like those in the alluvial plains, would have been condemned to extinction.
As for Nagymaros, Hungary argued that, if that dam had been built, the bed of the Danube upstream would have silted up and, consequently, the quality of the water collected in the bank–filtered wells would have deteriorated in this sector. What is more, the operation of the Gabčíkovo 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 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 régime” 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 Gabčíkovo 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 violadon 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 Gabčíkovo–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 Responsibility 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
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 Gabčíkovo–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.), Hungary on several occasions expressed, in 1989, its “uncertainties” as to the ecological impact of putting in place the Gabčíkovo–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), 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 Gabčíkovo 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 Gabčíkovo sector. It will recall that Hungary's concerns in this sector related on the one hand to the quality of the surface water in the Dunakiliti reservoir, with its effects on the quality of the groundwater in the region, and on the other hand, more generally, to the level, movement and quality of both the surface water and the groundwater in the whole of the Szigetköz, with their effects on the fauna and flora in the alluvial plain of the Danube (see paragraph 40 above).
Whether in relation to the Dunakiliti site or to the whole of the 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 apprehended had primarily to be the result of some relatively slow natural processes, the effects of which could not easily be assessed.
Even if the works were more advanced in this sector than at Nagymaros, they had not been completed in July 1989 and, 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 Gabčíkovo 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 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 benefiting from the excess withdrawal shall be correspondingly reduced”.
57. The Court concludes from the foregoing that, with respect to both Nagymaros and Gabčíkovo, 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 Gabčíkovo–Nagymaros Project. It is nonetheless the case that although the principal object of the 1977 Treaty was the construction of a System of Locks for the production of electricity, improvement of navigation on the Danube and protection against flooding, the need to ensure the protection of the environment had not escaped the parties, as can be seen from Articles 15, 19 and 20 of the Treaty.
What is more, the Court cannot fail to note the positions taken by Hungary after the entry into force of the 1977 Treaty. In 1983, Hungary asked that the works under the Treaty should go forward more slowly, for reasons that were essentially economic but also, subsidiarily, related to ecological concerns. In 1989, when, according to Hungary itself, the state of scientific knowledge had undergone a significant development, it asked for the works to be speeded up, and then decided, three months later, to suspend them and subsequently to abandon them. The Court is not however unaware that profound changes were taking place in Hungary in 1989, and that, during that transitory phase, it might have been more than usually difficult to co–ordinate the different points of view prevailing from time to time.
The Court infers from all these elements that, in the present case, even if it had been established that there was, in 1989, a state of necessity linked to the performance of the 1977 Treaty, Hungary would not have been permitted to rely upon that state of necessity in order to justify its failure to comply with its treaty obligations, as it had helped, by act or omission to bring it about.
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 above), 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 Gabčíkovo 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’ 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 Gabčíkovo dam as agreed in the Joint Construction Plan.”
As the Court has already indicated (see paragraph 23), 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 Gabčíkovo 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 Gabčíkovo 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 Gabčíkovo 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 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 Gabčíkovo 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 Čunovo, 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 Gabčíkovo–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 Gabčíkovo 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 ecological 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 Čunovo 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 per cent of the waters of the Danube were directed into the canal designed to supply the Gabčíkovo 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 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 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 Gabčíkovo 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 Gabčíkovo.
Variant C consists of a complex of structures, located in Czechoslovakia … 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 (15m 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 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 wrongdoing 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/Gabčíkovo 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 Gabčíkovo 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 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 Gabčíkovo 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, I.C.J. Reports 1956, separate opinion of Sir Hersch Lauterpacht, 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 Gabčíkovo–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 Gabčíkovo–Nagymaros Project and for the operation of this joint property as a co–ordinated single unit. 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.
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).
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 abandonment 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 Szigetköz — 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 obligations 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.
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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 mutually 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 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'être 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
2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a 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:
“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:
(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:
4. The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach.
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.
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 régime of joint investment 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 régime as in any event, even if that were the case, it would have to conclude that in this instance that régime 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, 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” (I.C.J. Reports 1973, p. 63, para. 36).
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 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. 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 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 Chorzów, 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 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, p. 241, 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 aunt 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.
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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
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–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 régime 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:
“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;
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 régime” 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 régime” 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 régime 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 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 Régime 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 régimes 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 régime within the meaning of Article 12 of the 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 Hungarian 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.
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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 Čunovo” 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 Čunovo to below the confluence at Sap become jointly defined water conditions as required by Article 3 (a) of the 1976 Convention”.
Hungary moreover indicated that any mutually accepted long–term discharge régime must be “capable of avoiding damage, including especially damage to biodiversity prohibited by the [1992 Rio Convention on Biological Diversity]”. It added that “a joint environmental impact assessment of the region and of the future of Variant C structures in the context of the sustainable development of the region” should be carried out.
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”,
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 Gabčíkovo 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 Čunovo, bearing Nagymaros in mind.”
It indicated that the Gabčíkovo 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 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 Gabčíkovo 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 Čunovo 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 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 Gabčíkovo 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 Čunovo, and that the plant is operated in a run–of–the–river mode and not in a peak hour mode as originally foreseen. Equally, the Court cannot ignore the fact that, not only has Nagymaros not been built, but that, with the effective discarding by both Parties of peak power operation, there is no longer any point in building it.
135. As the Court has already had occasion to point out, the 1977 Treaty was not only a joint investment project for the production of energy, but it was designed to serve other objectives as well: the improvement of the navigability of the Danube, flood control and regulation of ice–discharge, and the protection of the natural environment. None of these objectives has been given absolute priority over the other, in spite of the emphasis which is given in the Treaty to the construction of a System of Locks for the production of energy. None of them has lost its importance. In order to achieve these objectives the parties accepted obligations of conduct, obligations of performance, and obligations of result.
136. It could be said that that part of the obligations of performance which related to the construction of the System of Locks — in so far as they were not yet implemented before 1992 — have been overtaken by events. It would be an administration of the law altogether out of touch with reality if the Court were to order those obligations to be fully reinstated and the works at Čunovo 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 Gabčíkovo 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 Gabčíkovo 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 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 régime. 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 régime is a basic element, it considers that, unless the Parties agree otherwise, such a régime 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 Čunovo 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 régime. The dam at Čunovo 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 régime.
It appears from various parts of the record that, given the current state 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 régime 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 Chorzów:
“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. 77, 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 Čunovo, with changes in the mode of operation in respect of the allocation of water and electricity, and not to build works at Nagymaros.
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 Gabčíkovo–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 Gabčíkovo 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 Čunovo complex, it must pay a proportionate share of the building and running costs.
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155. For these reasons,
(1) Having regard to Article 2, paragraph 1, of the Special Agreement,
A. By fourteen votes to one,
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 Gabčíkovo 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. By nine votes to six,
Finds 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. By ten votes to five,
Finds 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. By eleven votes to four,
Finds 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;
A. By twelve votes to three,
Finds 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. By thirteen votes to two,
Finds 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. By thirteen votes to two,
Finds that, unless the Parties otherwise agree, a joint operational régime 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. By twelve votes to three,
Finds 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;
E. By thirteen votes to two,
Finds 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 2 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,
(Signed) Eduardo Valencia–Ospina,
President Schwebel and Judge Rezek append declarations to the Judgment of the Court.
Vice–President Weeramantry and 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.
Declaration of President Schwebel
1 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.
Declaration of Judge Rezek
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 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.
Separate Opinion of Vice–President Weeramantry
1 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
2 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.
3 Yet there are other factors to be taken into account — not the least important of which is the developmental aspect, for the Gabčíkovo scheme is important to Slovakia from the point of view of development. The Court must hold the balance even between the environmental considerations and the developmental considerations raised by the respective Parties. The principle that enables the Court to do so is the principle of sustainable development.
4 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.
5 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 environmental 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.
6 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.
7 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.
8 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 régime, 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.
9 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?
10 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.
11 I would observe, moreover, that both Parties in this case agree on the 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.)
12 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).
13 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).
14 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.
15 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.
16 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.
17 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.
18 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.
(a) Development as a Principle of International Law
19 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 community1 and has been gathering strength since then2. Principle 3 of the Rio Declaration, 1992, reaffirmed the need for the right to development to be fulfilled.
“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 welfare3. That could perhaps be called the first principle of the law relating to development.
(b) Environmental Protection as a Principle of International Law
21 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 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.
(c) Sustainable Development as a Principle of International Law
23 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.
24 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.
25 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 19714; 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 Declaration5 provided a setting for the development of the concept of sustainable development6 and more than one–third of the Stockholm Declaration related to the harmonization of environment and development7. The Stockholm Conference also produced an Action Plan for the Human Environment8.
26 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.
27 Since then, it has received considerable endorsement from all sections of the international community, and at all levels.
28 Whether in the field of multilateral treaties9, international declarations10; the foundation documents of international organizations11; the practices of international financial institutions12; regional declarations and planning documents13; or State practice14, 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 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))15. 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 achieved16.
29 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.
30 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.
31 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.
32 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 resolution 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.
33 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.
34 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 …”17
35 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.
36 Recognition of the concept could thus, fairly, be said to be worldwide18.
(d) The Need for International Law to Draw upon the World's Diversity of Cultures in Harmonizing Development and Environmental Protection
37 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.
38 This is a legitimate source for the enrichment of international law, which source is perhaps not used to the extent which its importance warrants.
39 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 purpose19. 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.
40 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 …”20
41 Moreover, especially at the frontiers of the discipline of international 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, I 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”21.
42 Especially where this Court is concerned, “the essence of true universality”22 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. Adatci23, 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.
43 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.
44 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
45 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 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.
46 As the Court has observed, “Throughout the ages mankind has, for economic and other reasons, constantly interfered with nature.” (Judgment, para. 140.)
47 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.
48 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 Lanka24. 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.
49 This system, some details of which I shall touch on25, is described by Arnold Toynbee in his panoramic survey of civilizations. Referring to it as an “amazing system of waterworks”26, Toynbee describes27 how hill streams were tapped and their water guided into giant storage tanks, some of them four thousand acres in extent28, from which channels ran on to other larger tanks29. Below each great tank and each great channel were hundreds of little tanks, each the nucleus of a village.
50 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 Earge Dams30, 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.
51 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 animals31.
52 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”32. 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.
53 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.
54 This ancient concept of development was carried out on such a large scale that, apart from the major reservoirs33, of which there were several dozen, between 25,000 and 30,000 minor reservoirs were fed from these reservoirs through an intricate network of canals34.
55 The philosophy underlying this gigantic system35, 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 monarch36 that “not even a little water that comes from the rain is to flow into the ocean without being made useful to man”37. According to the ancient chronicles38, these works were undertaken “for the benefit of the country”, and “out of compassion for all living creatures”39. This complex of irrigation works was aimed at making the entire country a granary. They embodied the concept of development par excellence.
56 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 (Devanampiya Tissa, 247–207 BC) was on a hunting trip (around 223 BC), the Arahat40 Mahinda, son of the Emperor Asoka of India, preached to him a sermon on Buddhism which converted the king. Here are excerpts from that sermon:
“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.”41
57 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 century42.
58 The sermon also pointed out that even birds and beasts have a right to freedom from fear43.
59 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.
60 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 rains44. They attracted the rain which fed the river and irrigation systems of the country, and were therefore considered vital.
61 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 problem45, by controlling the pressure and the quantity of the outflow of water when it was released from the reservoir46. 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 flow47.
62 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.
63 Not merely from the legal perspective does this become apparent, but even from the approaches of other disciplines.
64 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”48, and proceeds immediately to recapitulate the famous sermon, already referred to, relating to the trusteeship of land, observing, “For as King Devanampiya Tissa was told three centuries before the birth of Christ, we are its guardians — not its owners.”49
65 The task of the law is to convert such wisdom into practical terms — 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”50 to give the principle of sustainable development the nature of customary law.
66 This reference to the practice and philosophy of a major irrigation civilization of the pre–modern world51 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.
67 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.
68 My next illustration comes from two ancient cultures of sub–Saharan Africa — those of the Sonjo and the Chagga, both Tanzanian tribes52. 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 part53. The system comprised a fine network of small canals, reinforced by a superimposed network of larger channels. The water did 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 avoided54.
69 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 prevailed55. 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 repair56. The furrow was a social asset owned by the clan57.
70 Another example is that of the qanats58 of Iran, of which there were around 22,000, comprising more than 170,000 miles59 of underground irrigation channels built thousands of years ago, and many of them still functioning60. 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.
71 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–irrigation61. Traditional farming methods and later irrigation systems helped to overcome the resulting problems of waterlogging and salinization.
72 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 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”62. An ancient stone inscription teaching the art of river control says that its teaching “holds good for a thousand autumns”63. 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’”.64 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.
73 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 consumption65. 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”66. Here, too, we note the harmonization of developmental and environmental considerations.
74 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.
75 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 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.
76 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 come67; 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 commerce68, 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 itself69, 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 to cause wanton damage, even to an enemy's territory in the course of military conflict70.
77 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 ways71.
78 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 cities72.
79 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.
80 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 requisites for its maintenance and continuance are among those pristine and universal values which command international recognition.
81 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.”73
82 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”74. Modern environmental law needs to take note of the experience of the past in pursuing this “congruence of fit” between development and environmental imperatives.
83 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 latter75.
84 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 question76.
(f) Traditional Principles That Can Assist in the Development of Modern Environmental Law
86 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.
87 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.
88 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.
89 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.
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90 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 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
92 In a previous opinion77 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 it78.
93 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 consequences; and considerations of prudence would point to the need for continuous monitoring79.
94 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.
95 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 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.
96 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.
97 Over half a century ago the Trail Smelter Arbitration80 recognized the importance of continuous monitoring when, in a series of elaborate provisions, it required the parties to monitor subsequent performance under the decision81. 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.
98 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)82. There has thus been growing international recognition of the concept of continuing monitoring as part of EIA.
99 The Court has indicated in its Judgment (para. 155 (2) (C)) that a joint operational régime 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 régime. Indeed, the 1977 Treaty, with its contemplated régime of joint operation and joint supervision, had itself a built–in régime 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 at every stage of the project's progress, throughout its period of active operation.
100 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 ordained83.
(b) The Principle of Contemporaneity in the Application of Environmental Norms
102 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.
103 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.
104 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.
105 If the Treaty was to operate for decades into the future, it could not operate on the basis of environmental norms as though they were frozen in time when the Treaty was entered into.
106 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.
107 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.
108 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”84.
109 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 standards 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.
110 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 unsound, even though it is taken under an instrument of more than 20 years ago.
111 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”85.
112 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 Treaty86. 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.
C. The Handling of Erga Omnes Obligations in Inter Partes Judicial Procedure
(a) The Factual Background: The Presence of the Elements of Estoppel
114 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.
115 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.
116 Secondly, Hungary, having entered into the Treaty, continued to treat it as valid and binding for around 12 years. As early as 1981, the Government 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.
117 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.
118 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 Hungarian 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.
119 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.
120 It seems to me that all the ingredients of a legally binding estoppel are here present87.
121 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
122 In making these observations, one must be deeply sensitive to the fact that Hungary was passing through a very difficult phase, having regard 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.
123 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.
124 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?
125 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.
126 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.
127 There has been conduct on the part of Hungary which, in ordinary 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.
128 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.
129 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.
130 Indeed, the inadequacies of technical judicial rules of procedure for the decision of scientific matters has for long been the subject of scholarly comment88.
131 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.
132 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.
134 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. 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.
Separate Opinion of Judge Bedjaoui
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 effectivités 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.
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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).
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
(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
(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 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”1.
(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 interpreted, 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 evolutionary. It is the law corresponding to the period when this concept is 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 Gabčíkovo–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 interpreted “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.
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.
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 three–fold 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 Gabčíkovo hydroelectric power plant on Slovak territory is conditioned by the Dunakiliti 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 régime, undeniably giving the Treaty instituting this space and this régime 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.
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 effectivités which must be reconciled with the survival of the Treaty.
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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 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 régime 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 worthless. At least because of its dangers, this theory deserved wholehearted censure, which I 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 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 solutions” 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 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–à–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 conduct 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 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) Floodplairi 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 Čunovo 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 Čunovo, 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 Čunovo. In short, even the first operation at Čunovo 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 Čunovo 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 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 International 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 …
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 Gabčíkovo 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 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, I 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 Čunovo 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 international 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 (Czecho)Slovakia'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.
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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.
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.
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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 effectivités which will continue to mark the landscape of the region in question.
55. The jurist is not fond of effectivités. 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 effectivités 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 effectivités into the legal processes.
56. (Czecho)Slovakia implemented Variant C. The construction of the Gabčíkovo system laid down in the Treaty was thus effected by the substitution of Čunovo for Dunakiliti, with its technical and physical consequences. This Variant C is illegal but it exists. Slovakia places all the greater reliance on its effectivité because it “approximates” to the law. It was certainly keen to assert its readiness to destroy this effectivité. 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 effectivité has a twofold singularity.
Firstly, until recently it was what Charles De Visscher calls an “effectivité in action”2 and became consolidated when the case was “sub judice”. Gabčíkovo 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 while the case was before the Court. Today it is an almost complete structural effectivité.
The second singularity of the Slovak effectivité is that it draws its strength from the facts but also, in part, from the law. This is a striking characteristic of this effectivité, which is constructed, like any effectivité, 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.
(i) the dam and hydroelectric power plant at Gabčíkovo, 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 Čunovo instead of Dunakiliti); and
(iii) the Danube still flows along its original bed (with the twofold difference that it has been closed at Čunovo 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 effectivités is rather curious.
Firstly, an effectivité may express a certain order established by the act. This is not the case here. The Hungarian effectivités express, quite the contrary, a kind of “disorder” arising from the abandonment of the works. They are effectivités not “in action” but in a state of prolonged “malformation”.
As for the Nagymaros site, it presents a picture of a kind of “negative” effectivité through the abandonment of the construction of the dam. This means that the “negative” effectivité of Nagymaros has created a definitive situation, for Hungary's will appears irrevocable.
The other Hungarian effectivités 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 effectivités 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 Gabčíkovo 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 Čunovo reservoir.
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 effectivités. 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, effectivités 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 effectivités on the ground. However it was important to emphasize above all that in taking these effectivités 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 effectivités 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 Čunovo installations, nor to complete, upstream of Gabčíkovo, 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 effectivités as inescapable acts, their nature as internationally unlawful acts must nonetheless be noted, acts for which Hungary must answer by assuming its responsibility. The same holds true for the consideration of the Slovak ejfectivités, 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 effectivités 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));
(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;
(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
So much for the survival of the 1977 Treaty and its significance. Let us now examine the consideration of the effectivités and then its significance.
66. The significance to be attached to taking account of the effectivités 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 effectivité against a title, in other words against the law itself. In this case on the other hand, taking account of the effectivités 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 effectivités, who will be liable for all the necessary compensation. The law, trampled by the effectivités, is thus “avenged” by the price paid by the Parties in the form of compensation for the effectivités created. It is on this condition, in particular, that co–existence will develop between these effectivités 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 effectivités in their negotiations to incorporate them into the new Treaty. The starting point to be borne in mind is that these effectivités 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 Gabčíkovo hydroelectric plant, in other words its operation independently of the Nagymaros dam. And instead of the peak–mode operation of Gabčíkovo, which was only possible with a dam at Nagymaros, it agrees to the run–of–the–river operation of Gabčíkovo, 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 Čunovo and the abandonment of Dunakiliti respectively.
68. While these effectivités, 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 effectivités do not kill the Treaty, which survives them;
— these effectivités do not go unpunished and entail sanctions and compensation;
— and above all, these effectivités 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 effectivité; 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.
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 Čunovo 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 effectivité 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.
Separate Opinion of Judge Koroma
1 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 Gabčíkovo 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.
2 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”.
3 When Czechoslovakia (later Slovakia) and Hungary agreed by means of the 1977 Treaty to construct the Gabčíkovo–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.
4 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 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.
5 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 servanda.
6 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 operation 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.
7 On the other hand, the PHARE Report on the construction of the reservoir at Čunovo 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 régimes 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.
8 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 ecosystems 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.
9 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 conclusion reached that no problems were predicted in relation to groundwater quality.
10 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.
11 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).
12 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.
13 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 acknowledging 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 Gabčíkovo 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.
14 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.
15 As the Judgment recalled, Article 1 of the 1977 Treaty stipulated that the Gabčíkovo–Nagymaros Project was to comprise a “joint investment” and to constitute a “single and operational system of locks”, consisting of two sections, Gabčíkovo 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:
(4) the flood–control works of the Nagymaros head–water installations, in Czechoslovak territory, with the exception of the lower Ipel district;
Hungary was to be responsible for, inter alia:
“(1) the Dunakiliti–Hrušov head–water installations on the right bank, in Czechoslovak territory, including the connecting weir and the diversionary weir;
(2) the Dunakiliti–Hrušov 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 Palkovičovo, in Hungarian and Czechoslovak territory;
(6) improvement of the old bed of the Danube, in Hungarian and Czechoslovak territory;
(7) operational equipment of the Gabčíkovo 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.”
16 In accordance with the Treaty and the concept of joint investment, some of those structures, such as the Dunakiliti weir, the bypass canal, the Gabčíkovo dam and the Nagymaros dam were to become joint property, irrespective of the territory on which they were located.
17 As noted in the Judgment, by the spring of 1989 the work on Gabčíkovo was well advanced: the Dunakiliti dam was 90 per cent complete, the Gabčíkovo dam was 85 per cent complete, the bypass canal was between 60 per cent complete (downstream of Gabčìkovo) and 95 per cent complete (upstream of Gabčìkovo), and the dykes of the DunakilitiHrušov 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.
18 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 Gabčìkovo section, thereby preventing the scheduled damming of the Danube in 1989, this had a considerable, 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 Gabčíkovo. Hungary's contribution was therefore considered indispensable, as some of the key structures were under its control and situated on its territory.
19 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 Čunovo 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 shiplock; 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 Dobrohošt and Gabčíkovo. 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.
20 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.
22 In spite of what appeared to me not only a cogent and reasonable explanation for its action but also an eminently legal justification for 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 Gabčíkovo 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 Gabčíkovo–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 Gabčíkovo. 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.
23 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.
24 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 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.
25 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 Szigetköz — and failed to respect the degree of proportionality required by international law.
26 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.
27 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 Gabčíkovo 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 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 régime.
28 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.
29 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.
30 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 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.
31 The Judgment also alluded to “the continuing effects of the diversion of these waters on the ecology of the riparian area of the Szigetköz”. 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.
32 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.
33 In his separate opinion in the case concerning the Diversion of Water from the Meuse, Judge Hudson stated that
“[W]hat 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, 1937, 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.)
34 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 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.)
35 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.
36 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 warranted 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.
Dissenting Opinion of Judge Oda
1. I have voted against operative paragraph 1 C 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 2 D (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 Gabčíkovo–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 régime), 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 régime, 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 management 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.
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 Gabčíkovo 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 Gabčíkovo 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 Gabčíkovo 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 Gabčíkovo–Nagymaros 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 Gabčíkovo–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 Gabčíkovo–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 Gabčíkovo 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 the bypass canal (on the territory of Czechoslovakia), and the construction of the dams together with the power stations at Gabčíkovo 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 Gabčíkovo–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 Gabčíkovo–Nagymaros Barrage System of 6 May 1976 (hereinafter referred to as the 1976 Agreement1), signed by plenipotentiaries at the level of Deputy Minister. The Hungarian translation states in its Preamble that
“[the parties] have decided on the basis of a mutual understanding with regard to the joint implementation of the Hungary–Czechoslovakia Gabčíkovo–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 Gabčíkovo–Nagymaros Dam of 16 September 1977 (hereinafter referred to as the 1977 Agreement2), the same date on which the 1977 Treaty was signed3. 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.
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 Gabčíkovo–Nagymaros System of Locks as defined in the 1977 Treaty should be considered as separate from the 1977 Treaty itself.
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 régime 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 Gabčíkovo–Nagymaros System of Locks (the construction of (i) the Dunakiliti dam which would permit the operation of the bypass canal, (ii) the Gabčíkovo dam with its power plant and (iii) the Nagymaros dam with its power plant). The construction of the Gabčíkovo–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.
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 1 (a)
8. Under the terms of the Special Agreement, the Court is requested to answer the question
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 Gabčíkovo 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 Gabčíkovo sector itself, so the matter of the construction of the Gabčíkovo 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 Gabčíkovo–Nagymaros System of Locks as “a single and indivisible operational system of works” (1977 Treaty, Art. I, 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 Gabčíkovo–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
“Hungary was not entitled to suspend and subsequently abandon, in 1989, the works on the Nagymaros Project and on the part of the Gabčíkovo Project for which the  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 Szigetköz 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 Szigetköz 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 Gabčíkovo–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 Gabčíkovo–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 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 Gabčíkovo power plant. One is at a loss to understand how Hungary could have thought that the operation of the bypass canal and of the Gabčíkovo 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 Czechoslovakia. 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 development 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 2 D, of the Judgment. As I 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 Gabčíkovo 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 Gabčíkovo 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 Gabčíkovo 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 Gabčíkovo 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 following part of this opinion, together with the matter of the construction of the Čunovo 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 Gabčíkovo 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 Gabčíkovo power plant would likewise have provided a part of its electric power to Hungary, the amount of power to be produced by the Gabčíkovo 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 Gabčíkovo 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 Gabčíkovo plant. The Nagymaros dam would also have been required essentially in order to enable the operation of the Gabčíkovo 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 — II.) 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 Gabčíkovo 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 abandonment 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 Gabčíkovo 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 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 Gabčíkovo–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 Čunovo) by Czechoslovakia (Special Agreement, Art. 2, para. 1 (b); Art. 2, para. 2)
1. Special Agreement, Article 2, Paragraph 1 (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 (b)).
22. (Provisional solution = Variant C.) As Hungary had suspended work on part of the Gabčíkovo 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 Treaty had been jeopardized by Hungary, and since the benefit which Czechoslovakia would have enjoyed as a result of the power plant at Gabčíkovo 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 Čunovo 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 Čunovo. 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 Čunovo 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 Čunovo 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 Gabčíkovo 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 Čunovo 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 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 Čunovo 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 I 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 Čunovo 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 Čunovo but, the diversion of waters at Čunovo 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 Čunovo by the use of sluice–gates or by a modification to the design of the dyke separating the waters in the Čunovo reservoir. 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
“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 Čunovo 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 Čunovo dam met by Czechoslovakia alone as a result of Hungary's failure to execute its Treaty obligations concerning the completion of the GabčíkovoNagymaros System of Locks. The cost of the construction of the Čunovo 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 Čunovo 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 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 Čunovo dam but also the operation of that dam at Čunovo 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 2 D.
32. (The amendment of the Joint Contractual Plan.) The implementation by Czechoslovakia of Variant C — the construction of the Čunovo dam and the damming of the waters for diversion into the bypass canal — was a means of executing the plan for the Gabčíkovo–Nagymaros System 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 Gabčíkovo 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 Čunovo 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 Szigetköz region and allow satisfactory operation of the Gabčíkovo power plant by Slovakia, as well as the 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 Gabčíkovo–Nagymaros System of Locks is now in operation, in its modified form (that is, with the Čunovo 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 Gabčíkovo 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 Gabčíkovo Project and for the work carried out solely by Czechoslovakia to construct the Čunovo 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 Cart of the whole Project, the construction of the bypass canal from Čunovo 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.
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.
Dissenting Opinion of Judge Ranjeva
1 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)).
2 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?
3 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.
4 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.
5 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.
6 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.
7 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 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.
8 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.
9 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.
10 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” as far as reparation of the damage is concerned, as it emerges from operative paragraph 2 D in the terms the Court has chosen1.
11 With all the respect I have for the Court, I 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.
12 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.
13 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 in navigation. The Nagymaros works were designed to be put into operation when the installations at Gabčíkovo 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.
14 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.
15 The inconsistent nature of the conclusion reached by the Court, in operative paragraphs I B and 1 C (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.
16 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.
17 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.
18 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”.
19 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 régime 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.”
20 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.
Dissenting Opinion of Judge Herczegh
1 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.
2 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 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.
3 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.” (I.C.J.Reports 1996, pp. 241–242, para. 29.)
4 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.
5 The Court only grants a very modest place to ecological considerations 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.
6 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.
7 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 considered 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. Vavroušek, 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).
8 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 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.
9 Unfortunately, that picture is a far cry from reality. It is difficult to see otherwise why the Minister, Mr. Vavroušek, 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.
10 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.)
11 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,
12 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 present–day requirements that the scope of the Parties' treaty obligations with regard to protection of the environment should be defined.
13 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.)
14 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.
15 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.
16 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 Gabčíkovo 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.)
17 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.