Koe, Adriana --- "Damming the Danube: The International Court of Justice and the Gabcikovo-Nagymaros Project (Hungary v Slovakia)" [1998] SydLawRw 27; (1998) 20 (4) Sydney Law Review 612
[*] BCom, Law Student, University of Sydney. I would like to thank Associate Professor Donald R Rothwell for his valuable comments and expert insight on the development of this case note. The views expressed are mine alone and I stand culpable for any remaining errors or omissions.
[1] 37 ILM 162 (1998) (hereinafter, the Gabcíkovo-Nagymaros Case). The judgment may also be located at http://www.icj-cij.org/idocket/his/ihsjudgment/ihsjudcontent.html.
[2] UNTS Reg No 17134. Signed at Budapest on 16 September 1977, Entry into force: 30 June 1978. (Hereinafter, 1977 Treaty).
[3] Above n1 at 174.
[4] 1977 Treaty, Article 5.
[5] Above n1 at 177.
[6] The Protocol of 10 October 1983 postponed operation of the power plants, whilst the Protocol of 6 Feb 1989 sought to accelerate work on the project.
[7] Hungarian Ministry of Foreign Affairs, http://www.kum.hu/angorsz/slova.htm.
[8] 32 ILM 1293(1993) (hereinafter, Special Agreement).
[9] Composition of the Court: President Schwebel, Vice-President Weeramantry, Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Abdul Koroma, Vereshchetin, Parra-Aranguren, Kooijmans, Rezek and Judge ad hoc Skubiszewski.
[10] Declaration of President Schwebel, Separate Opinion of Vice President Weeramantry, Separate Opinion of Judge Abdul Koroma, Dissenting Opinion of Judge Oda, Dissenting Opinion of Judge Fleischhauer, Dissenting Opinion of Judge Vereshchetin, Dissenting Opinion of Judge Parra-Aranguren, Dissenting Opinion of Judge ad hoc Skubiszewski, Declaration of Judge Rezek, Separate Opinion of Judge Bedjaoui, Dissenting Opinion of Judge Ranjeva, and Dissenting Opinion of Judge Herczegh.
[11] Above n1 at 197.
[12] Doc. UN Conference on the Succession of States in respect of Treaties – Official Documents Conf. Docs Vol III. Done on 23 August 1978, Entry into force: 6 November 1996. Status: 20 Signatories, 15 Parties (hereinafter, Succession Convention).
[13] In the alternative, presuming that automatic succession was to apply, Hungary relied upon Article 11 of the Succession Convention, excluding application of the convention to “obligations and rights relating to the regime of a boundary”.
[14] Above n1 at 198.
[15] Ibid.
[16] For example, relocating the river’s main shipping lane to the bypass channel constructed.
[17] Above n1 at 198.
[18] International Law Commission, “Commentary on the Draft Articles of State Succession in Respect of Treaties”, 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 at 33.
[19] UNTS Vol 1155 at 331. Done on 23 May 1969, Entry into force: 27 January 1980. Status: 47 Parties, 84 Signatories (hereinafter, VCLT’).
[20] Note however that the VCLT applied to the Second Protocol of 1989.
[21] Legal Consequences for States of the Continued Presence of South Africa in Namibia (South- West Africa) notwithstanding Security Council Resolution 276, (Advisory Opinion) ICJ Reports 1971 at 47; Fisheries Jurisdiction (Jurisdiction of the Court) (United Kingdom v Iceland), ICJ Reports 1973 at 18; and Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, (Advisory Opinion) ICJ Reports 1980, 73 at 95–6.
[22] Above n1 at 183. Cf Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Advisory Opinion, Second Phase) ICJ Reports 1950, 221 at 228 and Article 17 of the Draft Articles on State Responsibility 1996 37 ILM 440 (1998).
[23] Above n1 at 184–6.
[24] The International Law Commission has had codification of the law of state responsibility on their agenda since 1949. The Commission has concentrated upon the rules and procedures that govern state responsibility, as opposed to substantive primary rules that give rise to such responsibility when breached. The Draft Articles on State Responsibility were adopted in 1996. The United Nations General Assembly called for States to submit comments on the Draft Articles by 1 January 1998. See Kaye, D, “International Law Commission: Draft Articles on State Responsibility – Introductory Note” (1998) 37 ILM 440 at 440–441, and United States of America, “Draft Articles on State Responsibility: Comments of the Government of the United States of America” (1998) 37 ILM 468.
[25] Above n1 at 184.
[26] The Court did not consider this point once it had made a negative determination on Article 33(1)(a).
[27] Above n1 at 184.
[28] Id at 185. See also International Law Commission, above n18 at 35.
[29] This is in concordance with the International Law Commissions findings, id at 49.
[30] Above n1 at 185–6. The Court quotes a report of the ad hoc Committee of the Hungarian Academy of Sciences (23 June 1989) “Because of the complexity of the ecological processes and lack of the measured data and the relevant calculations the environmental impacts cannot be evaluated” (emphasis added).
[31] Above n1 at 185. See also Stec, S and Eckstein, G E, “Of Solemn Oaths and Obligations: The Environmental Impact of the ICJ’s Decision in the Case Concerning the Gabcíkovo-Nagymaros Project” (1997) 8 Yearbook of In’l Envir’l Law 41 at 43.
[32] Boyle observes that “the only courts to make serious use of the precautionary principle are the Indian and Pakistani Supreme Courts”, in Boyle, A E, “The Gabcíkovo Nagymaros Case: New Law in Old Bottles” (1997) 8 Yearbook of Int’l Envir’l Law 13 at 17.
[33] Stec and Eckstein, above n31 at 47.
[34] Above n1 at 185.
[35] Ibid.
[36] Done at Budapest on 31 May 1976.
[37] Admissibility of Hearings of Petitioners by the Committee on South West Africa (1956) ICJ Reports 1956 at 46.
[38] Above n1 at 190.
[39] Ibid.
[40] International Law Commission, “Report of the International Law Comission on the Work of its Forty-Eighth Session, 6 May–26 July 1996”, Official Records of the General Assembly, Fiftyfirst Session, Supplement No 10 (A/51/10) at 141; and International Law Commission, “Commentary on Article 41 of the Draft Articles on State Responsibility” (1993) Yearbook of the Intern’l L Commission, Vol II, Part 2, at 57.
[41] The Court found that Czechoslovakia was entitled to proceed to Variant C (by 9 votes to 6), but that this entitlement did not exist in 1992 (by 10 votes to 5).
[42] Above n1 at 194.
[43] Ibid.
[44] Id at 195.
[45] Ibid.
[46] Id at 196.
[47] Birnie, P and Boyle, A, Int’l Environ’l Law (1992) at 1. See also De Castro, P C, “The Judgment in the Case Concerning the Gabcíkovo-Nagymaros Project: Positive Signs for the Evolution of International Water Law” (1997) 8 Yearbook of Int’l Envir’l Law 21 at 25.
[48] Trail Smelter (US v Canada) (1938 and 1941) III RIAA 1905.
[49] Factory at Chorzow (1928) PCIJ Series A No 17 at 47.
[50] Above n1 at 190.
[51] (Merits) (Nicaragua v United States of America), ICJ Reports 1986, 14 at 127. See also Case Concerning the Air Service Agreement of 27 March 1946 between the United States of America and France (1978) XVIII RIAA 443.
[52] Above n1 at 191.
[53] Id at 202. Note however that the settlement of accounts is a separate issue and if Hungary is to benefit from the benefits of the Cunovo complex it must pay proportionate share of construction expenses in accordance with the 1977 Treaty.
[54] Id at 200.
[55] North Sea Continental Shelf Cases ICJ Reports 1969 at 47.
[56] Above n1 at 201.
[57] Ibid.
[58] The concept of sustainable development was tangentially referred to by the judgment of the Court, id at 201.
[59] Although His Excellency identified a case for legal estoppel, given Hungary’s representations to Czechoslovakia, he questioned the application of an inter partes remedy to cases with erga omnes connotations, id at 216–7. The elements of estoppel are outlined in Legal Status of Eastern Greenland (1933) PCIJ Series A/B No 53 at 22, and Case concerning the Temple of Preah Vihear (Merits) (Cambodia v Thailand) Merits, ICJ Reports 1962 at 6.
[60] Above n1 at 215.
[61] Id at 205.
[62] (1992) XXXI ILM 818, Preamble and Articles 1 & 10.
[63] Above n1 at 207–11.
[64] Grotius sought principles a posteriori as well as setting them forth a priori for a new discipline of international law.
[65] Above n1 at 210–3. Under Islamic law all land belongs to God and can never be subject to human ownership. Human beings hold land in trust as custodians for future generations and are charged with the obligations of due care and wise management.
[66] Id at 206.
[67] His Excellency voted in favour of Court Finding C providing that a joint operational regime must be established in accordance with the 1977 Treaty, unless the parties agree otherwise.
[68] Klabbers, J, “The Substance of Form: The Case Concerning the Gabcíkovo-Nagymaros Project, Environmental Law and the Law of Treaties” (1997) 8 Yearbook of Int’l Envir’l Law 32 at 33.
[69] Above n1 at 201. Cf Singh, N, “Sustainable Development as a Principle of International Law” in de Waart, P, Peters, P and Denters, E, International Law and Development (1988) at 1–3.
[70] Above n32 at 18.
[71] Ibid.
[72] Above n1 at 140. See also Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in Nuclear Tests Case (New Zealand v France) ICJ Reports 1995 at 344.
[73] Above n48 at 1907.
[74] Above n1 at 215.
[75] South West Africa cases, Second Phase, ICJ Reports 1966 at 293–4, per Judge Tanaka.
[76] Above n1 at 204.
[77] Id at 196.
[78] Ibid.
[79] Bourne, C, “The Case Concerning the Gabcíkovo-Nagymaros Project: An Important Milestone in International Water Law” (1997) 8 Yearbook of Int’l Envir’l Law 6 at 11.
[80] A view shared by Eckstein, G, “Application of International Water Law to Transboundary Groundwater Resources, and the Slovak-Hungarian dispute over Gabcikovo-Nagymaros” (1995) 19 Suffolk Transnat’l LR 67. Failure of the Court to clarify the status of international watercourse law is especially disappointing in view of the fact that President Schwebel had been a Special Rapporteur of the International Law Commission for its work on watercourses, as was Mr Stephen C McCaffrey, who appeared before the Court on behalf of the Slovak Republic.
[81] Adopted by the General Assembly of the United Nations on 21 May 1997 at New York [103 votes in favour, 3 against (Turkey, China, Burundi) and 27 abstentions] General Assembly Doc A/51/869. The Convention will enter into force with 35 instruments of ratification or accession. Status: 7 signatories, 2 parties. [hereinafter, Watercourse Convention]. For further discussion on watercourses see Wouters, P (ed), International Water Law: Selected Writings of Professor Charles B Bourne (1997); Benvenisti, E, “Collective Action in the Utilization of Shared Freshwater: The Challenges of International Water Resources Law” (1996) 90 AJIL 384; and, McCaffrey, S and Mpazi, S, “The 1997 United Nations Convention on International Watercourses” (1998) 92 AJIL 97.
[82] Above n1 at 190.
[83] The relevant factors to be considered in a determination of an equitable result are enumerated in Article 6 and include the natural character of the watercourse, existing and potential uses the watercourse, cost of conservation and protection measures, social and economic needs and the availability of comparable alternatives. The priority and weight of each factor is left for judgment in individual cases, attaining flexibility at the expense of uncertainty of application. There is no priority or automatic preference for established watercourse uses.
[84] Jan Varso, speaking on behalf of Slovakia before the 99th General Assembly Plenary, comments that Articles 5, 6 & 7 of the Watercourse Convention lack an objective definition of reasonable and equitable utilisation. Whilst Hungary was one of the sponsoring States of the resolution, Slovakia voted in favour of adopting the convention. United Nations General Assembly, “General Assembly Adopts Convention on the Law of Non-Navigational Uses of International Watercourses” (21 May 1997) General Assembly Plenary 99th Meeting Press Release GA/9248, available at http://www.gci.ch.water/data/GenAsswater.html
[85] Bruhacs, J, The Law of Non-Navigational Uses of International Watercourses (1993) at 74; Menon, P K, “Water Resources Development of International Rivers With Special Reference to the Developing World” (1975) 9(3) Int’l Lawyer 441 at 444; Nollkaemper, A, The Legal Regime for Transboundary Water Pollution: Between Discretion and Constraint (1993) at 216. Cf Lammers, J G, Pollution of International Watercourses: Search for Substantive Rules and Principles of Law (1984) at 382, Howarth, W, Water Pollution Law (1988) at 284–6; Rahman, R, “The Law of the Non-Navigational Uses of International Watercourses: Dilemma for Lower Riparians” (1995) 19 Fordham Int’l LJ 9 at 17; Szasz, P, “International Norm-Making” (1992) in Brown-Weiss, E (ed), Environmental Norms and International Law: New Challenges and Dimensions 41 at 69; Handl, G, “The Principle of ‘Equitable Use’ as Applied to Internationally Shared Natural Resources: Its Role in Resolving Potential International Disputes Over Transfrontier Pollution” in Organisation for Economic Cooperation and Development, Transfrontier Pollution and the Role of States (1981), Paris at 103.
[86] (Columbia v Peru) ICJ Reports 1950 at 266.
[87] (Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands) ICJ Reports 1969.
[88] (1929) PCIJ Ser A No 16, at 27–9.
[89] (1937) PCIJ Ser A/B No 70 at 76.
[90] (France v Spain) (1957) 24 ILR 101 at 123.
[91] (Afghanistan v Iran) (1872 and 1905).
[92] Above n1 at 239–242. Note that the judgment of the Court briefly mentioned the community of waters theorem at 191.
[93] Brownlie, I, Principles of Public Int’l Law (4th edn, 1990) at 514.
[94] Above n1 at 220, emphasis added.
[95] Ibid.
[96] Bourne, above n79 at 11. Cf Boyle, above n32 at 16–17, citing for example international fisheries law and the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1992 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, UN Doc.A/ CONF.164/37 34 ILM 1547 (1995).
[97] Fisseha, Y, “State Succession and the Legal Status of International Rivers” in Zacklin, R and Caflisch, L (eds), The Legal Regime of International Rivers and Lakes (1981) at 196–7.
[98] Eckstein, above n80.
[99] United Nations Environment Program, The State of the World Environment (1991) at 27.
[100] American Society of International Law, “Water Resources in the Middle East: Impact on Economics and Politics” (1986) Proceedings of the 80th Annual Meeting at 249–50.
[101] See also reviews in Dixon, M, “The Danube Dams and International Law” (1998) 57 Cambridge LJ 1, and Bostian, I, “The International Court of Justice Decision Concerning the Gabcíkovo- Nagymaros Project” (1997) 9 Colorado J of Int’l Environ’l L and Policy 186.
[102] See for example, India’s representation to the 99th General Assembly Plenary, above n84.
[103] Stec and Eckstein, above n31 at 49.
[104] Id at 42.
[105] De Castro, above n47 at 23.
[106] Id at 30.
[107] (Advisory Opinion) ICJ Reports 1996 241.
[108] (Preliminary Objections) (1992) 32 ILM 530. The Court held that it could not exercise jurisdiction in this matter. See also Nuclear Tests Cases (Interim Protection) ICJ Reports 1973, Nuclear Test Cases (Australia v France; New Zealand v France) ICJ Reports 1974 at 253, 457, and Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests Case (New Zealand v France) ICJ Reports 1995 at 288.
[109] Bekker, P, “Gabcíkovo-Nagymaros Project” (1998) 92 AJIL 273 at 277: “Judging from the reactions of the media in Hungary and Slovakia in the aftermath of the Court’s Judgment, both countries welcomed the outcome of the case”.
[110] Hungarian Ministry of Foreign Affairs, http://www.kum.hu.
[111] Id. Note the prophetic nature of Boyle’s comment that “[t]he Court scrutinised Hungary’s reluctance to continue building the Nagymaros Dam and to negotiate more strictly than it treated Czechoslovakia’s ongoing construction and ultimately illegal implementation of Variant C” at 42.