This Article has been written by Mohammad Faraz, a 3rd year law student at Aligarh Muslim University Centre Murshidabad, West Bengal.
ABSTRACT
Slovakia (earlier Czechoslovakia), situated in Central Europe, is a landlocked nation bordered by Poland to the north, Ukraine to the east, Hungary to the south, Austria to the west, and the Czech Republic to the northwest. The water originating from the Danube River plays a crucial role in supplying clean water and facilitating transportation for millions of individuals in Slovakia and Hungary. However, this valuable resource has become the focal point of an intense political struggle, leading to a significant portion of the Danube River (situated in central and extended upto eastern Europe) on the Hungarian side being left arid and barren. The challenge of coordinating the lengthy Gabcikovo-Nagymaros dam project on the Danube River led Hungary and Slovakia to appear before the International Court of Justice (ICJ) in one of its environmental cases which led to many questions on the operation and termination of a treaty, name of the case was (Hungary v. Slovakia). In this article, the author has dealt with all the key issues involved in this case, along with the facts and situations that led to this issue being placed before the ICJ.
KEYWORDS
Sustainable development, Sustainable use, Dispute settlement, international agreement, Water abstraction.
INTRODUCTION
The occurrences of flooding in the Danube River, particularly the catastrophic events in 1954 and 1965, caused extensive damage and destruction. These floods resulted in the river overflowing, leading to widespread inundation in the neighboring regions. Homes, farmland, and infrastructure suffered severe consequences, resulting in loss of lives, displacement of communities, and economic difficulties. The historical challenges posed by floods in the Danube River have spurred endeavors to introduce measures for flood control and foster international collaboration to minimize the impact of these natural disasters.
The Budapest Treaty, agreed upon in 1977 between Hungary and Czechoslovakia, highlighted a significant partnership between the two countries. This collaboration aimed to improve diplomatic relations and cooperation in different areas. Specifically, the treaty outlined a shared project between Hungary and Czechoslovakia, envisioning a barrier system across their borders. This system was planned between the towns of Gabcikovo (formerly in the Czechoslovak Socialist Republic, now in the Slovak Republic) and Nagymaros (previously in the People’s Republic of Hungary, now in Hungary).
The primary goal of the project was to generate hydroelectric power, enhance navigation on the relevant part of the Danube, and safeguard the areas along the riverbanks from flooding. The plan involved constructing two sets of locks, one in Gabcikovo (in Czechoslovak territory) and the other in (in Hungarian territory). These locks were designed to form a unified and inseparable operational system of structures. The plan was to divert part of the river into an artificial canal at Dunakiliti (a village in Hungary) As most of the construction was scheduled for Slovak territory, the Hungarian government was required to contribute to certain building activities in Slovakia, ensuring a fair investment from both sides. The electricity generated was intended to be divided equally between the two countries. It is important to note here that the treaty does not contain any provision regarding its termination.
FACTUAL SITUATION
In Hungary, public opposition grew in the early 1980s due to concerns about both the economy and the environment. By 1988, significant protests emerged throughout Hungary about constructing the Gabcikovo-Nagymaros dams, and by 1989, around 150,000 people had signed a petition expressing their opposition to the project. In May 1989, Hungarian Prime Minister Miklós Németh halted work on Nagymaros, stating it symbolized an outdated economic model and a malfunctioning decision-making process.
While there was some emerging independent environmental activism in Czechoslovakia related to Gabcikovo, it did not reach the level of protest seen in Hungary. This difference reflected a greater demand for affordable energy in Czechoslovakia and a relatively smaller environmental impact. Consequently, by the time of the Velvet Revolution in November 1989, Gabcikovo was nearly completed, whereas Nagymaros had barely started.
Due to substantial criticism surrounding the Project in Hungary, the Hungarian Government took the decision on May 13, 1989, to halt the works at Nagymaros. This suspension was contingent upon the completion of various studies mandated for conclusion by the competent authorities before July 31, 1989. On July 21, 1989, the Hungarian Government extended the pause at Nagymaros until October 31, 1989, and additionally suspended the works at Dunakiliti until the same date. Ultimately, on October 27, 1989, Hungary opted to abandon the Nagymaros project and maintain the status quo at Dunakiliti.
During this period, negotiations occurred between the parties involved. Czechoslovakia explored alternative solutions, with one, later known as Variant C, involving the independent diversion of the Danube by Czechoslovakia about 10 kilometers (about 6.21 mi) upstream of Dunakiliti. The final phase of Variant C included constructing an overflow dam and a levee at Cunovo, connecting it to the south bank of the bypass canal.
Ancillary works were considered, and on July 23, 1991, the Slovak Government decided to commence construction in September 1991 to operationalize the Gabcikovo Project through the provisional solution. Variant C construction began in November 1991. Despite ongoing discussions, no agreement was reached, leading to the Hungarian Government issuing a Note Verbale on May 19, 1992, to the Czechoslovak Government, terminating the 1977 Treaty with effect from May 25, 1992. On October 15, 1992, Czechoslovakia initiated work to close the Danube, proceeding to dam the river starting on October 23.
LEGAL ISSUES
The European Commission offered to mediate, and after acceptance, the involved parties agreed to bring their disputes regarding the original project and Variant C to the International Court of Justice (ICJ). Additionally, they decided to implement a temporary plan for managing the river. On July 2, 1993, the governments of Hungary and the Slovak Republic jointly notified the ICJ’s Registry about a Special Agreement signed in Brussels on April 7, 1993. This agreement aimed to present certain issues stemming from differences between Hungary and the former Czech and Slovak Federal Republic regarding the execution and termination of the Budapest Treaty of September 16, 1977. The agreement clarified that the Slovak Republic is the sole successor state of the former Czech and Slovak Federal Republic in this matter. Article 2 of the Special Agreement requested the Court to decide on specific issues.
The Court examined three main legal questions:
- Whether Hungary had the legal authority to suspend and later abandon the project in 1989.
- Whether Slovakia had the legal authority to implement Variant C.
- The legal consequences of Hungary’s 1992 notification to terminate the Treaty.
The Court’s ruling on these three matters did not have unanimous agreement
COURT INTERPRETATON
Analysis of Issue I:
In its judgment on September 25, 1997, the Court initially considered the Vienna Convention’s provisions (Articles 60 to 62) on treaty termination and suspension as a codification of customary international law. The Court determined that Hungary, by suspending and later abandoning the works it was still accountable for, signaled its unwillingness to adhere to certain provisions of the 1977 Treaty. This rendered the completion of the expressly described single and indivisible system of works impossible.
The Court acknowledged the concept of a “state of necessity” as a recognized ground in customary international law to negate the wrongfulness of an action not in line with an international obligation. However, it emphasized that such grounds could only be accepted under exceptional circumstances. While Hungary’s concerns for its regional environment were deemed important, the Court found that the perceived perils in 1989 were not sufficiently established or imminent. Hungary also had alternative means to address these concerns without resorting to the suspension and abandonment of entrusted works.
The Court highlighted that when Hungary entered the 1977 Treaty, it was presumably aware of the known situation, and the parties recognized the need to protect the environment. Therefore, even if a state of necessity existed in 1989 related to the treaty’s performance, Hungary could not justify its failure to comply, as it had contributed to creating that state of necessity. Based on these findings, the Court concluded that Hungary was not justified in suspending and subsequently abandoning the works for which it was responsible.
Analysis of Issue II:
Regarding whether the Czech and Slovak Federal Republic had the right to implement the provisional solution in November 1991 and make it operational from October 1992, the Court noted that the fundamental feature of the 1977 Treaty was the joint construction of the lock system, forming a unified and inseparable operational structure. Consequently, the Court concluded that when Czechoslovakia unilaterally implemented Variant C, it was not adhering to the 1977 Treaty. Instead, it was violating specific provisions of the treaty, committing an internationally wrongful act.
Analysis of Issue III:
On the final matter, the states were advised to return to negotiations to address their differences in good faith, aligning with the original objectives of the Treaty and considering the ecological issues that had emerged.
Regarding international environmental law, a key point before the ICJ was whether, in 1989, there was an ecological “state of necessity” justifying Hungary’s decision to suspend and abandon its commitments under the Treaty. According to international law, Hungary’s actions could be considered wrongful unless a recognized “state of necessity” existed.
Hungary argued that by 1989, it became evident that the project was a mistake and posed ecological risks. Slovakia contested this, suggesting that ecological issues could have been addressed without suspending the project. The Court outlined the elements of a “state of necessity,”
(1) There must be an “essential interest” of the state (Hungary) at stake;
(2) That interest must have been threatened by a “grave and imminent peril”; and
(3) The act being challenged (suspension and abandonment of project works) must have been the only means of “safeguarding” that essential interest.
While the Court acknowledged the potential application of “state of necessity” to ecological concerns, it found Hungary failed to establish these elements. Uncertainties about the ecological impact and the availability of alternative means contributed to this decision. The Court concluded that Hungary was not justified in suspending and abandoning the project in 1989.
Hungary’s arguments supporting the lawfulness of its treaty termination also failed for various reasons, including
(a) The impossibility of performance of the Treaty;
(b) The occurrence of a fundamental change of circumstances;
(c) The material breach of the Treaty by Slovakia (adoption of Variant C and failure to comply with the environmental protection provisions of the Treaty); and
(d) The development of new norms of international environmental law.
The Court determined that none of these grounds were successful, and Hungary’s termination notification in May 1992 did not legally terminate the Treaty, which remained in force between the parties.
Regarding whether Slovakia became a party to the 1977 Treaty as the successor state to Czechoslovakia, the Court highlighted the principle that treaties with a territorial focus remain unaffected by a change in states, considering it a part of customary international law. Consequently, the Court determined that the Treaty itself was not altered by the succession of states, and as a result, it became legally binding on Slovakia starting from January 1, 1993.
CONCLUSION
The International Court of Justice (ICJ) left several significant questions unresolved in the Hungary-Slovakia environmental case. Notably, the ICJ did not deliver definitive guidance on the equitable allocation of the river’s water between the two nations. While the ICJ recommended that both sides consider nullifying compensation claims and proposed Hungary contribute half of the total construction costs incurred, it did not enforce either of these solutions. Additionally, the ICJ refrained from specifying Hungary’s rights concerning the management of the Gabcikovo project, leaving this aspect open for further consideration.
Reference:
1997 I.C.J.
This article was originally written by Tushar Kanti Mohindroo and published on Legal Service India. The link for the same is herein https://www.legalserviceindia.com/legal/author-12038-tusharkm316.html
This article was originally written by Stephen Deets and published on Wilson Center. The link for the same is herein https://www.wilsoncenter.org/publication/171-solving-the-gabcikovo-nagymaros-dam-conflict
https://www.icj-cij.org/case/92
Case, paras 49-52. These were the elements essential to the facts. Other elements included: the abandonment must not have seriously impaired an essential interest of the other state (Slovakia); and the state whose act is in question (Hungary), must not have contributed to the state of necessity.
Case, paras 92-115.
The article was originally written by Prue Taylor and published on New Zealand Legal Information Institute. The link for the same is herein http://www.nzlii.org/nz/journals/NZJlEnvLaw/1999/7.pdf
https://www.mpil.de/de/pub/publikationen/archiv/world-court-digest.cfm?fuseaction_wcd=aktdat&aktdat=dec0305.cfm