Case concerning the Gabcikovo Nagymaros project Hungary/Slovakia

On September 1977 Hungary and Czechoslovak signed the Gabcikovo-Nagymaros treaty, providing for a ‘join investment’ to produce electricity in a single and indivisible system. Under strong pressure, 13 May 1989, Hungary suspended the works pending the completion of ecologic studies, on 27 October 1989 Hungary abandoned the works at Nagymaros. Slovakia announced on 23 July 1991 that should Hungary continue to breach the Treaty she would proceed with a provisional solution [damming up the Danube unilaterally]. On November 1991 Slovakia commenced the construction in its territory of the provisional solution, but put it in operation on October 1992 On 19 May 1992 Hungary notify the termination of the Treaty, under the ground that Slovakia had made a material breach of the Treaty Te case was referred to the ICJ by special agreement (1993) The court was asked: a) Whether Hungary was entitled to suspend and subsequently abandon, in 1989, the Nagymaros project b) Whether Slovakia was entitled to proceed, November 1991, to the ‘provisional solution’ and to put into operation from October 1992 this system c) What are the legal effects of the notification on May 1992 of the termination of the treaty by Hungary Resolution a) 40. Hungary contended that, although it did suspend or abandon certain works, on the contrar, it never suspended the application of the 1977 Treaty itself: to justified its conduct it relied essentially on a “state of ecological necessity” 46. The Vienna Convention of 1969 on the Law of Treaties … might be considered as a codification of existing customary law… 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 …1971) 47. The law of Treaties and the law of State responsibility … obviously have a scope that is distinct. A determination of whether a convention is or is not in force, and whether it has 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 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 do the Convention by operation of Article 73. It is moreover well established that, when a State has committed an international 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, AO, 1950) 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…, it did not …suspend the application of the 1977 Treaty itself or reject that treaty. The conduct of Hungary …can only be interpreted as an expression of its unwillingness to comply with … the Treaty. The effect of Hungary´s conduct was to render imposible the accomplishment of works… described as “single and indivisible” When [Hungary] invoked the state of necessity in an effort to justify its conduct… chose to place itself from the outset within the ambit of State Responsibility, thereby implying that in the absence of such a circumstance, its conduct would have been unlawful. The state of necessity … - supposing it to have been established - thus could not permit the conclusion that … obligations had ceased to be binding upon [Hungary]. It would only permit the affirmation that, under the circumstances, Hungary would not incur international responsibility by acting as it did [Was there a state of necessity?] 51. 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. … 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 [Conditions] 52. It must have been occasioned by an “essential interest” of the State to which is the author of the act conflicting with one of its international obligations; the interest must have been threatened by a “grave an imminent peril”; the act being challenged bust have been the “only means” of safeguarding that interest; that act must not have “seriously impair(ed) and essential interest” of the State toward 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 CIL 53. The Court has no difficult in acknowledging that the concerns expressed by Hungary for its natural environment… related to an “essential interest” 54. 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 with a “peril” duly established at the relevant pint in time; the mere apprehension of a possible “peril” could not be suffice en that respect. … “peril”… 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”… that does not exclude.. 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. 57. Perils invoked by Hungary, without prejudging their possible gravity, were not sufficiently established in 1989, nor were they “imminent”; and Hungary had available to it at the time means of responding to these perceived perils other than the suspension and abandonment of works 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 about it. b) 67. [Slovakia] …maintained that [provisional solution] did not constitute internationally wrongful acts. Slovakia invoked … “principle of approximate application” to justify the [provisional solution] It explained that his was the only possibility remaining to [Slovakia] “of fulfilling not only the purposes of the 1997 Treaty, but the continuing obligations 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 69. Although Slovakia maintained that Czechoslovakia’s conduct was lawful, it argued in the alternative that [provisional solution] could still be justified as a countermeasure 75. Even if [the principle of approximate application] existed [whenever a legal instrument 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 an to give effect to the instrument- not to change it (Admissibility of Hearing of Petitioners by the Committee on South West Africa, separate opinion Judge Sir Hersch Lauterpacht, ICJ Reports 1956, p. 46)] existed, it could by definition only be employed within the limits of the treaty in question. [by definition the 1977 Treaty could not be carried out unilaterally, so Slovakia committed a wrongful act]

79. A wrongful act o offence is frequently preceded by preparatory actions which are not to be confused with the act or offence itself [as those made by Slovakia in its own territory between November 1991 and October 1992]. It is a well to distinguish between the actual commission of a wrongful act (whether instantaneous or continuous) [when the Danube was unilaterally dammed] and the conduct prior to that act which is of preparatory character and which “does not qualify as a wrongful act 80. While [the duty to mitigate damages] provide a basis for the calculation of damages, it could not, on the other hand, justify an otherwise wrongful act. 82. The Court.. 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 be justifiable, a countermeasure must meet certain conditions [ICJ cited Nicaragua, doctrine collective self-defence, and Air Service Agreement of 27 March 1946..RIAA Vol. XVIII]: In the first place it must be taken in response to a [1] previous wrongful act of another State and must be[2] directed against that State… It is clear that [provisional solution] was a response to Hungary’s suspension and abandonment of works and that it was directed against that State, and … Hungary’s action were internationally wrongful. 84. the injured State [3] must have called upon the State committing the wrongful act to discontinue its wrongful conduct or to make reparation for it. It is clear … that Czechoslovakia requested Hungary to resume the performance of its treaty obligations on may occasions The Court considers that Czechoslovakia … failed to respect the [4] proportionality which is required by international law 87. It is therefore not required to pass upon one other condition for the lawfulness of a countermeasure, namely that its purpose must be [4] to induce the wrongdoing State to comply with its obligations [cessation & reparation] under international law and that the measure must therefore be [5] reversible. [Countermeasure, does not suspend the treaty; treaty continues to apply and the party taking countermeasures must continue to justify its non-compliance by reference to the criteria for taking countermeasures (necessity, proportionality, etc.) for as long as its non-compliance lasts] c) 90. Hungary described [that provisional solution was] “a serious breach of International Law” and stated that … [it] have no choice but to respond to the situation of necessity by terminating the 1977 inter State Treaty 92. Hungary presented five arguments in support of the lawfulness, and thus 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 environmental law [in particular precautionary principle (the previously existing obligation not to cause substantive damage to the territory of another State had, according to Hungary, evolved into an erga omnes obligation of preventions of damage)] 99. The Vienna Convention is not directly applicable to the 1977 Treaty inasmuch as both States ratified that Convention only after the Treaty’s conclusion [inter temporal rule see Palmas Case] Consequently only those rules which are declaratory of customary law are applicable to the 1977 Treaty. 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. … Treaty could only be terminated on the limited ground of Vienna Convention. 101. 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… the Treaty may be ineffective as long as the condition of necessity continues to exist, it may in fact be dormant, but… it continues to exist. As soon as the state of necessity ceases to exist, the duty to comply with treaty obligations revives. 102. Impossibility of performance …requires the “permanent disappearance or destructions of an object indispensable for the execution” of the Treaty to justify the termination of a Treaty. [The object of the Treaty was a join venture, in this case it was still alive]. 103. Impossibility of performance [join venture not possible] 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 [Hungary fault to finish the works]. 104 The changed circumstances advanced by Hungary are … 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 of 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. 106. a material breach of the treaty itself [is] a ground for terminating the treaty. The violation of other treaty rules or rules of general international law may justify the taking of certain measures, including countermeasure, by the injured State, but it does not constitute a ground for termination under the law of treaties 108. Czechoslovakia violated the Treaty only when it diverted the waters of the Danube into the bypass canal in October 1992 … the notification by Hungary on 19 Mat 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 terminated when it did. 110. [quoting Chorzow the Court said] Hungary by its conduct, had prejudiced its right to terminate the Treaty, this would 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. notwithstanding that Slovakia had made a material breach. The negative wording VCLT suggest for stability of treaties, that Fundamental change of Circumstances can only be applied in exceptional cases 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 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 … [the 1977] Treaty 114. 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… this reciprocal wrongful conduct did not bring the Treaty to an end nor justify its termination. The Court would set a precedent with disturbing implication for treaty relations and the integrity of the rule pacta sunt servanda if it were to conclude that a treaty in force between States, … might be unilaterally set aside on grounds of reciprocal non-compliance. 117. The Court must … turn to the question whether Slovakia became a party to the Treaty as successor to Czechoslovakia 123. The [1977] Treaty … created a situation in which the interest of other users of the Danube were affected. Furthermore, the interest of third States were expressly acknowledged… Treaties of a territorial character [have] been regarded both in traditional doctrine and in modern opinion as unaffected by succession of States…[that is] customary international law… [the 1977 Treaty] cannot be affected by a succession of States 133. The Court … cannot disregard .. the factual situation that now exists… This does not mean that facts … 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 140. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development 142. [Quoting North Sea Continental Shelf Cases, on meaningful negotiations, the Court stated] 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 [binding upon the parties, performed in good faith] This latter element … implies … that it is the purpose of treaty, and the intentions of the parties in concluding it, which must prevail over literal application. The Principle of good faith obliges the Parties to apply it in a reasonable way in such a manner that its purpose can be realized.