January 31, 2024

The case concerning the Gabcikovo – Nagymaros Project (1997): Watercourses and International Law

This Article has been written by Ms. YERRAM GEETHA, a FINAL year student of KONERU LAKSHMAIAH EDUCATION FOUNDATION, COLLEGE OF LAW, GUNTUR.

 

CASE: Gabcikovo-Nagymaros Project Hungary vs Slovakia

RULE OF LAW:

Watercourse states must fairly and reasonably engage in the use, development, and preservation of an international watercourse.

In light of the no-harm rule, three points of the ruling are very important.

The first component concerns whether Hungary was allowed to halt and terminate the project without taking responsibility for it under a justification of necessity. The ICJ specified the requirements in this case for a state of exigency to hold. The act of necessity must, among other things, involve the defence of a fundamental interest.

SYNOPSIS OF THE CASE:

The Gabcïkovo-Nagymaros project dispute between Hungary and Slovakia is a significant case before the International Court of Justice. It raises several important questions of international law, including the Court’s competence to issue orders of specific performance, considering the consequences of legal developments in environmental protection, and the relationship between treaty law and state responsibility. The case is also one of the few where the Court has been asked to consider the legal implications of State succession outside the context of decolonisation. Despite the proliferation of treaty developments in environmental protection, the status of many norms remains problematic.

BRIEF FACTS OF THE CASE:

The Danube River, which is the second longest river in Europe, comprises a portion of the border that unites Slovakia and Hungary, two adjacent riparian states. On September 16, 1977, the Hungarian People’s Republic and the Czechoslovak Socialist Republic signed a treaty pertaining to the construction and operation of the Gabcíkovo-Nagymaros lock system. The Danube’s natural resources between Bratislava and Budapest, or two hundred of the river’s two thousand eight hundred and sixty kilometres, were covered by the treaty in its entirety. In its Preamble, the Treaty specifies objectives of mutual management in respect of “development of water resources, energy, transport, agriculture and other sectors of the national economy of the Contracting Parties”. According to a Joint Contractual Plan, the Project was an integrated joint scheme in which ownership and energy rights were equally distributed among the parties in proportion to their respective contributions to funding, construction, and operation. The Project was defined as a “single and indivisible operational system of works” in Article 1. In the midst of significant political and economic shifts in Central Europe, construction work started in 1978 and continued.

Strong opposition to Nagymaros’ construction was based on concerns about environmental damage and the project’s potential for future financial success. The Hungarian government was under political pressure as a result of this expanding resistance. After launching two Protocols, mostly related with timing of construction, Hungary paused works at Nagymaros on 21 July 1989 pending more environmental assessments.

Czechoslovakia objected to Hungary’s labour stoppage. After the parties engaged in negotiations, Czechoslovakia started looking for potential solutions. One of these options, “Variant C,” called for the Danube to be unilaterally diverted onto Czechoslovakian territory 10 kilometres upstream from Dunakiliti. In November 1991, Czechoslovakia started construction on Variant C, although negotiations had failed. Hungary allegedly terminated the 1977 Treaty on May 19, 1992, by sending a Note Verbale to the government of the Czechoslovak Republic. Czechoslovakia began damming the Danube on October 15, 1992, and closed it thereafter. After Czechoslovakia was dissolved on December 31, 1992, Slovakia was created. Since January 1, 1993, Hungary and Slovakia have had diplomatic relations.

ISSUES:

Under the rules of the treaty, the court was requested to decide whether the project’s construction would harm the Danube River or raise environmental issues after it was finished.

The Court has ruled that the Vienna Convention on the Law of Treaties Article 64, which addresses the termination of treaties due to the emergence of new international environmental law peremptory norms, is not applicable to the case. However, the Court emphasizes that recently established environmental law standards are relevant to the Treaty’s implementation and that parties may apply Articles 15, 19, and 20 to include them. These articles require parties to consider new environmental norms when deciding on methods in the Joint Contractual Plan to protect nature and maintain Danube water quality. The Treaty is flexible and can be modified to reflect new international standards.

Do nations’ basic duties to guarantee that actions under their authority and control respect the environments of other states or regions outside their borders now make up the body of international law about the environment?

The basic duty of nations to guarantee that activities under their jurisdiction and control respect the environment of other states or places beyond national control today makes up the corpus of international law pertaining to the environment. The idea of sustainable development aligns with the necessity of striking a balance between environmental preservation and economic growth. As a result, the parties must negotiate the terms of any agreements that are to be implemented.

Do states that border watercourses have an equitable and reasonable role to play in the development, use, and preservation of an international watercourse?

Indeed. Watercourse states must fairly and reasonably engage in the use, development, and preservation of an international watercourse. Czechoslovakia (D) denied Hungary (P) its access to a fair and reasonable amount of the Danube’s natural resources and violated the proportionality demanded by international law. The parties involved in the project must reestablish cooperative administration.

JUDGEMENT:

The court ruled that Hungary was not entitled to suspend and abandon works on the Nagymaros Project and Gabckovo Project in 1989, which were attributed to the 1977 Treaty and related instruments. Czechoslovakia was allowed to proceed to Variant C in November 1991, but not to put it into operation from October 1992. The court concluded that both Hungary and Czechoslovakia failed to comply with their obligations under the 1977 Treaty, but this reciprocal wrongful conduct did not bring the Treaty to an end or justify its termination. Both parties are under an obligation to pay compensation and are entitled to obtain compensation. The court also noted 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. Hungary must pay a proportionate share of the building and running costs to share in the operation and benefits of the Cunovo complex.

DECISION:

The Court held that the restoration of the joint rule was necessary. Common use of common water resources was required to accomplish most of the Treaty’s goals. As a result, the plaintiff’s approval was required before the defendant could continue.

REFERENCES:

 

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