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Environmental Protection of International Rivers’, Case

Analysis of the ICJ Judgement in the Case concerning the
Gabcikovo-Nagymaros Project (Hungary/Slov....

Article  in  Journal of Environmental Law · January 1998

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 CASE LAW ANALYSIS
Environmental Protection of International Rivers

International treaty concluded in 1977 between Hungary and Czechoslovakia concerning con-

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struction of dams on Danube—Hungary later concerned at environmental impacts —Hungary
suspends works but Czechoslovakia carries out unilateral measures — Hungary claims right to
terminate Treaty—dispute submitted to International Court of Justice—Court holds that right
to terminate on grounds of'ecological state of necessity' not available here—unilateral Czech/
Slovakian action held unjustifiable in case of shared water resource and principle of equitable
utilisation—1977 Treaty contained no provisions concerning termination so general interna-
tional law principles apply—Court held that intervening circumstances including changed
political and developing environmental knowledge not sufficient to justify termination — action
by Czech/Slovakia not sufficient to warrant termination—1977 Treaty sufficiently flexible for
parties to take account of new international environmental norms —principle of sustainable
development invoked in separate Opinion by Vice-President of the Court

Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia)

(International Court of Justice, The Hague, 25 September 1997)

Editor's note: The text of the judgment is not reproduced here but is summarised in the analysis. Further
details can be found on the web-site of the International Court of Justice http://www.icj-cij.org/

Analysis by Owen Mclntyre, Faculty of Law, University of Manchester

Background to the Dispute

In 1951, Czechoslovakia and Hungary entered into negotiations concerning the construction
of a system of hydroelectric plants along the Danube River. Eventually, on 16 September 1977,
both countries signed a treaty on the construction and operation of a systems of dams which
was intended to serve four purposes: electricity production, navigation, flood protection, and
regional development.1 Simply stated, the project required the building of two dams and sys-
tems of locks, one on Czech/Slovak2 territory at Gabcikovo and one on Hungarian territory at
1
Sec A. Kiss, 'The Gabcikovo-Nagymaros Case' in A. Kiss and D. Shelton, Manual of European Environmental
Law, and edn (Cambridge: Grotius, 1997) at 322-7. On background to the dispute generally, see P.R. Williams,
'International Environmental Dispute Resolution: The Dispute Between Slovakia and Hungary concerning Con-
struction of the Gabcikovo and Nagymaros Dams', Columbia Journal of Environmental Law (1994) 19, 1-57; B.
Nagy, 'Divert or Preserve the Danube? Answers in Concrete —a Hungarian Perspective on the Gabcikovo-
Nagymaros Dam Dispute,' Review of European Community and International Environmental Law (1996) 5, 138-44. For
a summary of the judgment, see The Times, 31 October 1997.
2
Slovakia became an independent State on 1 January 1993. Prior to this date it formed part of Czechoslovakia
and later of the Czech and Slovak Federal Republic. For convenience, it will be referred as Czech/Slovakia
throughout this work.
Journal of Environmental Law Vol 10 No 1 © Oxford University Press 1998
80 CASE LAW ANALYSIS
Nagymaros. The Gabcikovo dam, which was the largest, required the diversion of waters from
the main riverbed of the Danube, where that riverbed constitutes the border between Czech/
Slovakia and Hungary. This diversion would have reduced the average discharge of the Danube
from 2,000 cubic meters per second to a mere 50 cubic metres per second through the bypassed
river bed.
Shortly after construction work began, the Hungarian government, under pressure from a
powerful environmental lobby,3 began to express concern about the impacts of the project on
the environment. Their concerns were threefold: potential pollution of a large aquifer in the
vicinity of a reservoir to be constructed upstream of the Gabcikovo dam; damage to Szigetkoz,
an ecologically important wetland area lying to the south of the Danube within the territory
of Hungary, by lowering of the water-table; and, potential damage to groundwater lying north

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of Budapest due to the Nagymaros dam/ In 1981 an ad hoc committee was established by the
Hungarian Academy of Sciences to investigate these concerns which concluded that there had
not been any proper consideration of the environmental effects of the project and proposed
postponement of the works. After much deliberation, the Hungarian Government suspended
work on the Nagymaros dam on 13 May 1989 and announced its intention to suspend work
on its part of the Gabcikovo dam complex until the environmental effects of the project were
fully assessed. The Hungarian government sought to amend the 1977 Treaty after thorough
scientific investigation of the project's environmental effects. On 30 July 1991, while negoti-
ations were continuing, the Czech/Slovak authorities informed Hungary of their decision to
proceed with construction of a 'provisional solution' known as 'Variant C involving completion
of the upstream Gabcikovo reservoir and dam entirely on Czech/Slovak territory and diversion
of almost all the water from the original Danube riverbed. The Hungarian authorities protested
against this unilateral solution, threatening to terminate the 1977 Treaty if construction work
did not cease. On 15 May 1992, the Hungarian government issued a declaration to the effect
that the Treaty was terminated. The parties entered into trilateral negotiations with the involve-
ment of the European Community and reached an agreement on 28 October 19925 requiring
that not less than 95% of the original volume of water be discharged back into the Danube
riverbed. However, this agreement was never honoured by Czech/Slovakia who subsequently
proposed to discharge 50% of the original flow rate. After trilateral negotiations failed to find
a solution, Hungary and Czech/Slovakia signed, on 7 April 1993, a Special Agreement6 on the
submission of the dispute to the International Court of Justice (ICJ). Pending the Court's
judgement, the parties agreed to establish and implement a temporary water-management
regime for the Danube. Also, the Special Agreements obliges the parties to enter immediately
into negotiations once judgement has been given on how to implement the judgement.
In summary, Hungary claimed before the Court that, on account of the environmental risks
inherent in the project, it was entitled to suspend and abandon work on its part and that it
had validly terminated the 1977 Treaty. Secondly, it claimed that Slovakia was not entitled to
proceed with the 'provisional solution' and so was internationally responsible for the damage
and loss caused to Hungary and its nationals as a result of its implementation. Hungary also
sought a declaration to the effect that Czech/Slovakia was under an obligation to restore the
Danube and the flow of its waters to the situation it was in prior to the putting into effect of
the 'provisional solution'. For its part, Czech/Slovakia claimed that Hungary was not entitled
3
Ic has been stated that in Hungary, from the early 1980s, environmental protest was the primary means of
protesting against the entire political and social system and that numerous environmental groups were formed
to exploit this opening. See, V.J. Assetto and H. Bruyninckx, 'Environment, Security and Social Conflict:
Implications of the Gabcikovo—Nagymaros Controversy', in G. Blake, L. Chia, C. Grundy-Warr, M. Pratt, C.
Schofield, eds, International Boundaries and Environmental Security: Frameworks for Regional Cooperation (London: Kluwer
Law International: 1997).
4
Kiss, supra, n 1 at 324.
5
London Agreement, published in (1993) 32 ILM 1291. See Kiss, supra, n 1 at 325.
* (1993) 32 ILM 1293.
 ENVIRONMENTAL PROTECTION OF INTERNATIONAL RIVERS 8l
to suspend and abandon work on its part of the project and that Hungary's notification of
termination of the 1977 Treaty was without legal effect. It argued that the Treaty was still in
force and, therefore, that Hungary must cease to impede its full implementation, must take all
necessary steps to fulfil its own Treaty obligations, and, is liable to pay Czech/Slovakia full
compensation for the loss and damage caused by its breach of the Treaty. Czech/Slovakia also
claimed that it had been lawfully entitled to proceed with the 'provisional solution' and to put
it into operation.
The 1977 Treaty did contain provisions intended to safeguard water quality and the natural
environment. As with all the technical specifications relating to the project, the detailed sub-
stantive provisions on environmental protection would be included in the 'Joint Contractual
Plan' which complemented the Treaty and was to be drawn up in accordance with an Agree-

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ment signed by the two Governments for this purpose on 6 May 1976. Article 15 of the 1977
Treaty provided that the contracting parties 'shall ensure, by the means specified in the joint
contractual plan, that the quality of water in the Danube is not impaired as a result of the
construction and operation of the System of Locks'. Article 19 further stipulated that 'The
contracting parties shall, through the means specified in the joint contractual plan, ensure
compliance with the obligations for the protection of nature arising in connection with the
construction and operation of the System of Locks'. Also, Article 20 provided for the contracting
parties to take appropriate measures for the protection of fishing interests. However, the Pre-
amble to the Special Agreement7 dealt with the application and termination, not only of the
1977 Treaty, but also of'related instruments', though the Special Agreement neither defined
the concept of'related instruments' nor listed them. Unlike Czech/Slovakia, Hungary declined
to consider the Joint Contractual Plan as an instrument related to the 1977 Treaty, refusing
to see it as 'an agreement at the same level as the other . . . related Treaties and interstate
agreements'.8

Judgment
Part I
Firstly, in relation to the question submitted by the parties under Article 2, paragraph i(a) of
the Special Agreement, i.e. whether or not Hungary was entitled to suspend and abandon work
on its part of the project without incurring international responsibility, the Court had to exam-
ine whether any kind of'ecological state of necessity' had existed in 1989 which could have
justified such conduct. A 'state of necessity' is listed, as a ground for precluding the wrong-
fulness of a State act which is in breach of an international obligation, in the International
Law Commission's (ILC) Draft Articles on the International Responsibility of States.9 The
Draft Articles constitute an authoritative source of customary international law and were
accepted as such by both parties. However, Draft Article 33 imposes rigorous criteria,10 in order
to restrict this defence, which the Court found not to have been satisfied by the circumstances in
1989. Referring to the definition of a 'state of necessity' provided by the ILC in its Commentary
to the Draft Articles," and, to the 1989 Report of the ad hoc Committee of the Hungarian
Academy of Sciences12 and Hungarian practice at that time, the Court easily concluded that
no state of necessity existed on which Hungary could rely. Indeed, the Court pointed out that,

Ibid.
See Judgment, para 26.
Yearbook of the International Law Commission (1980) Vol I I , Part 2.
0
Ibid at 34.
' Ibid at 34, para 1: '. . . 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'.
12
Dated 23 June 1989.
82 CASE LAW ANALYSIS
even if such a state of necessity had existed, Hungary could not have relied upon it as Hungary
had helped to bring it about.13

Part II
Secondly, the Court had to determine whether Czech/Slovakia was entitled to proceed with
the provisional solution and to put it into operation in October 1992. Czech/Slovakia invoked
what it described as the 'principle of approximate application' which, it claimed, justified the
construction and operation of 'Variant C as 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'.14 Czech/Slovakia further argued that '[MJitigation of damages is also an aspect of
the performance of obligations in good faith' and that, by proceeding with 'Variant C , it was

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minimising its losses and, thereby, the damages claimable against Hungary.15 Also, Czech/
Slovakia maintained that, should the Court find its conduct unlawful, the implementation of
'Variant C could still be justified as a legitimate countermeasure.16 Hungary, on the other
hand, argued that 'Variant C amounted to a unilateral diversion and appropriation of shared
waters and was thus incompatible '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'.17 The Court found for Hungary
on this argument, noting that 'Variant C 'led [Czech/Slovakia] to appropriate, essentially 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, despite the fact that the Danube is not only a shared
international watercourse but also an international boundary river'.18 Although Hungary had
agreed under the 1977 Treaty to the damming and diversion of the Danube, it had only given
it consent in the context of a joint operation and the sharing of its benefits, and this, the Court
found, 'cannot mean that Hungary forfeited its basic right to an equitable and reasonable
sharing of the resources of an international watercourse'.19 Having found that Czeck/Slovakia
had committed an internationally wrongful act, the Court then determined that that act could
not amount to a justifiable countermeasure as it failed to satisfy one of the essential conditions
for countermeasures laid down in international law, i.e. that the effects of a countermeasure
must be commensurate with the injury suffered. It considered that Czech/Slovakia 'by unilater-
ally 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 Szigetkoz —
failed to respect the proportionality which is required by international law'.20

Part III
The third issue on which the Court had to decide was that of the legal effects of Hungary's
notification, on 19 May 1992, of the termination of the 1977 Treaty. Hungary presented five
arguments in support of the lawfulness of its notification: 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 Czech/Slovakia; and, the development of
new norms of international environmental law. Each argument concerned questions of treaty

15
Draft Article 33(a)(c) provides: 'In any case, a state of necessity may not be invoked by a State as a ground
for14precluding wrongfulness . . . if the State in question has contributed to the occurrence of the state of necessity.'
15
Judgment, para 67.
Ibid, para. 68.
16
Para 69.
" Para 64.
18
Para 78.
19
Ibid.
20
Para 85.
 ENVIRONMENTAL PROTECTION OF INTERNATIONAL RIVERS 83
law and, as the 1977 Treaty did not contain any provision regarding its termination, they had
to be determined on the basis of provisions of the i960, Vienna Convention on the Law of
Treaties. The Vienna Convention was not directly applicable to the 1977 Treaty as both States
had only ratified the 1969 Convention after the 1977 Treaty's conclusion. However, both parties
were broadly in agreement that those rules contained in the Vienna Convention that are
declaratory of customary law, including Articles 60 to 62 relating to termination or suspension
of the operation of treaties, would be applicable.21
The first argument, that there existed a state of necessity, was not considered by the Court
which pointed out that such a state, if found to exist, could not be invoked in order to terminate
a treaty but only to exonerate a State of its responsibility where it has failed to implement a
treaty.

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In its second argument, the impossibility of performance of the 1977 Treaty, Hungary relied
on Article 61 of the Vienna Convention and argued that 'an object indispensable for the
execution' of the Treaty, i.e. a project consistent with environmental protection, had perman-
ently disappeared. It contended that the 'object' in question did not have to be a physical
object but could include a legal situation or legal regime. However, after examining the docu-
mentary records of the 1968 Vienna Conference," the Court found that the participating States
had expressed a preference for inclusion only of the narrower concept of 'object indispensable'
under Article 61. Also, it pointed out that, by means of Articles 15, 19 and 20, the 1977
Treaty had expressly provided mechanisms whereby the parties could, by negotiation, make
readjustments to allow for ecological imperatives.
Thirdly, Hungary invoked Article 62 of the Vienna Convention and claimed that a number of
intervening events amounted to a 'fundamental change of circumstances' and thus constituted a
ground for terminating the 1977 Treaty. These events included, the profound political changes
which had occurred in both Hungary and Czech/Slovakia, the project's diminishing economic
viability, the progress of environmental knowledge and, the development of new norms and
prescriptions of international environmental law. The Court found that the principal objectives
of the project, i.e. energy production, flood control and the improvement of navigation, persisted
and thus that neither the prevalent political conditions, the economic system nor the estimated
profitability were '. . . 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'.23 Regarding new developments in the state
of environmental knowledge and of environmental law, the Court did not consider these to
have been completely unforeseen.2'1 Also, the Court again pointed out that, '. . . the formulation
of Article 15, 19 and 20, designed to accommodate change, made it possible for the parties to
take account of such developments . . .'.M
Fourthly, Hungary, relying on Article 60 of the Vienna Convention, contended that its
termination of the 1977 Treaty was justified on the grounds that, by putting 'Variant C into
operation, Czech/Slovakia had violated Articles 15, 19 and 20 of the Treaty as well as a number
of other conventions and rules of general international law. Regarding breach of the 1977
Treaty, the Court pointed out that Articles 15, ig and 20 obliged the parties to enter into
negotiations and to take jointly, on a continuous basis, appropriate measures necessary for the
protection of water quality, of nature and of fishing interests. It held, therefore, that '[T]he
failure of the parties to agree on those means cannot, on the basis of the record before the

21
See Judgment, para 99.
23
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, at 361-5.
23
Judgment, para 104.
M
As required under Article 62(1) of the Vienna Convention.
a
Judgment, para 104.
84 CASE LAW ANALYSIS
Court, be attributed solely to one party'.26 Also, as Czech/Slovakia had only violated the 1977
Treaty by putting 'Variant C into operation in October 1992 and diverting the waters of the
Danube, but not by its construction, Hungary's notification of termination on 19 May 1992
had been premature. Regarding Czech/Slovakia's breach of other conventions and rules of
general international law, the Court pointed out that, under the rule contained in Article 6o,
' . . . only a material breach of the treaty itself, by a State party to that treaty, . . . entitles the
other party to rely on it as a ground for terminating the treaty'.27 Whereas '. . . violation of
other treaty rules or rules of general international law may justify the taking of certain measures,
including countermeasures, by the injured State, . . . it does not constitute a ground for termina-
tion under the law of treaties'.28
Finally, Hungary argued that performance of the 1977 Treaty was precluded by the emer-

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gence of'subsequently imposed requirements of international law in relation to protection of the
environment'.29 It submitted that '[T]he previously existing obligation not to cause substantive
damage to the territory of another State had . . . evolved into an ergo omnes obligation of
prevention of damage pursuant to the 'precautionary principle".'30 Czech/Slovakia countered
this argument by submitting that none of the intervening developments in environmental law
gave rise to norms oijus cogens that would override the 1977 Treaty. The Court agreed that no
new peremptory norms of international environmental law had emerged since the conclusion
of the 1977 Treaty but pointed out that newly developed norms of environmental law are
relevant for the implementation of the Treaty as the parties could, by agreement, incorporate
them through the application of Articles 15, 19 and 20 which required the parties to take such
norms into consideration when agreeing upon the means to be specified for the protection of
water quality, nature and fisheries. The Court interpreted the insertion of 'these evolving
provisions' into the Treaty as proof that the parties 'recognised the potential necessity to adapt
the Project' and as proof that 'the Treaty is not static, and is open to adapt to emerging norms
of international law'.31 However, this adaptation was a joint responsibility and the general
obligations contained in Articles 15,19 and 20 had to be transformed into specific obligations
of performance through a process of consultation and negotiation. Therefore, the Court found
that no peremptory norms of international environmental law existed to apply to the Treaty
and, as the parties could not agree on specific measures required for protection of the environ-
ment, no subsequently developed environmental norms applied to the Treaty.

Analysis
Any ICJ decision of this complexity will have significant implications for a range
of areas of international law. The current case raises important issues of law
relating to State responsibility, the law of treaties and international law relating
to the environment. In this paper it is intended only to have regard to those
aspects of the decision impacting on the latter. However, in addition to providing
an analysis of environmentally relevant portions of the decision, it is necessary to
comment on the issues raised in the Separate Opinion of Vice-President Weeramantry,
who, because the case raised such a rich array of environmentally related legal
issues, decided to make some observations, supplementary to those of the Court.
It is worth noting that the observations of such a senior and respected member

56
Judgment, para 107.
27
Judgment, para 106.
a
Ibid.
" Judgment, para 97.
30
Ibid.
31
Judgment, para 112.
 ENVIRONMENTAL PROTECTION OF INTERNATIONAL RIVERS 85

of the Court are likely to be very persuasive in future disputes and discussions of
the law.
Despite the fact that the Court did not find, on the particular circumstances of
the present case, that a state of necessity existed, it had 'no difficulty in acknow-
ledging that the concerns expressed by Hungary for its natural environment . . .
related to an 'essential interest' of that State, within the meaning given to that
expression in Article 33 of the Draft Articles . . .\ 32 In support of this, the Court
pointed out that the ILC, in its Commentary to Draft Article 33, 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]'. 33 It also

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referred to its own recent statement that '[T]he 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'.34 Interestingly, some
commentators perceive the 'precautionary principle'35 as having developed from
this, the so-called 'no substantial harm' principle.36 These dicta from the ICJ,
which support evolving norms of customary international law on the protection
• of the environment, are likely to be welcomed by those who believe that customary
law has an increasing role to play in this area.
In the second part of its judgement, the Court gave clear precedence to Hun-
gary's complaint that entry into operation of 'Variant C was in contravention of
'the principles of sovereignty, territorial integrity . . .' and 'the general customary
norms on international rivers . . .'37 In other words, the Court gave clear support
for the primary rule of customary international law governing the use and alloca-
tion of international freshwater resources, that of'equitable utilisation'.38 Having
regard to this principle, it found that Hungary, in concluding the 1977 Treaty,
could not have forfeited its 'basic right to an equitable and reasonable sharing of
the resources of an international watercourse'.39 It further emphasised the relative
weight to be accorded to the principle of equitable utilisation by finding that
Czech/Slovakia's contravention thereof 'failed to respect the proportionality
required by international law' in order for a countermeasure to be considered
justifiable.40 In so doing, the Court mentioned that '[M]odern development of
52
Judgment, para 53.
" Supra, n 9 at 35, para 3. See Judgment, para 53.
34
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports (1996) at 241—2, para 29. See
Judgment, ibid.
" Discussed infra.
56
For example, A. Nollkaemper, infra, n 38 at 108.
37
As outlined, inter alia, in an Hungarian Note Verbale of 14 February 1992. See Judgment, para 64.
38
See P.W. Birnie and A.E. Boyle, International Law and the Environment (Oxford: Clarendon, 1992) at 127. On
the origins, status and substantive content of the principle of equitable utilization, see, inter alia, J. Lipper,
'Equitable Utilization' in A.H. Garretson, R.D. Hayton and C J . Olmstead, eds, The Law of International Drainage
Basins (New York: Oceana, 1967) at 15-891 J.G. Lammers, Pollution of International Watercourses (Dordrecht:
Martinus Nijhoff, 1984) at 364-71; A. Nollkaemper, The Legal Regime for Transboundary Water Pollution: Between
Discretion and Constraint (Dordrecht: Martinus NijhofT/Graham & Trotman, 1993) at 619; J. Bruhacs, The Law of
Non-Navigational Uses of International Watercourses (Dordrecht: Martinus Nijhoff, 1993) at 155-94; P.K. Wouters,
'An Assessment of Recent Developments in International Watercourse Law Through the Prism of the Substantive
Rules Governing Use Allocation, Natural Resources Journal (1996) 36, 2 at 417-39; X. Fuentes, 'The Criteria for
the Equitable Utilization of International Rivers', British Yearbook of International Law (1996) at 337-412. •
K
Judgment, para 78.
40
Judgment, para 85.
86 CASE LAW ANALYSIS

international law has strengthened this principle for non-navigational uses of inter-
national watercourses . . . 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.'41
The customary principle of equitable utilisation has received consistent and
widespread support from bodies involved in the codification of customary interna-
tional law,42 from leading publicists,43 and through State treaty practice.44 The
principle is based on the notion that international watercourses are shared
resources in which there exists a community of interest among all co-basin States.
The existence of this community of interest requires an 'equitable and reasonable'

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balancing of State interests which accommodates the needs and uses of each State.
To permit flexibility, the concept of'equitable and reasonable' is necessarily vague
and can only be determined in each case in the light of all relevant factors. It is
by facilitating this consideration of all relevant factors that the principle plays a
significant role in the environmental protection of international rivers. By provid-
ing for the establishment of factors which are to taken into account in determining
permissible water utilisation and the allocation of shares in the resource, equitable
utilisation provides a theoretical structure into which considerations of conserva--
don and environmental protection can easily be slotted. The most current, widely
accepted and authoritative articulation of the principle is contained in the United
Nations General Assembly Convention on the Law of the Non-Navigational Uses
of International Watercourses, adopted on 21 May 1997. While Article 5 outlines
the normative nature of the principle, and states that 'an international watercourse
shall be used and developed by watercourse States with a view to attaining optimal
and sustainable utilisation thereof',45 Article 6 provides a non-exhaustive list of the
relevant factors. These include:
[GJeographic, hydrographic, hydrological, climatic, ecological and other factors of a natural
character;46
[T]he effects of the use or uses of the watercourses in one watercourse State on other water-
course States;47 and
'[Conservation, protection, development and economy of use of the water resources of the
watercourse . . . w
The principle of equitable utilisation is accompanied, in the 1997 Convention, by
another fundamental principle governing utilisation of shared water resources,
41
Judgment, para 85.
" Including, Salzburg Resolution of the Institute of International Law (1961); International Law Association,
Helsinki Rules on the Uses of Waters of International Rivers (1966); United Nations Environment Programme,
Principles on Shared Natural Resources (1978); and International Law Commission Draft Articles on the Law
of Non-Navigational Uses of International Watercourses (1994).
43
Supra, n 38.
44
For example, the United Nations General Assembly adopted the draft resolution on a Convention on the
Law on Non-Navigational Uses of International Watercourses (Doc A/51/L 72) by a recorded vote of 104 in
favour to three against, with 27 abstentions. For examples of other treaties incorporating the principle, see L.A.
Teclaff, 'The Impact of Environmental Concern on the Development of International Law', Natural Resources
Journal (1973) 13, 357-8.
45
Author's emphasis.
46
Article 6(a).
47
Article 6(d).
48
Article 6(Q.
 ENVIRONMENTAL PROTECTION OF INTERNATIONAL RIVERS 87

'the obligation not to cause significant harm'. 49 Current debate rages as to which
of these substantive principles, if any, takes precedence over the other, and as to
the resulting environmental consequences.50 Leading commentators have recently
expressed the view that significant harm to the environment is a special category
of injury that automatically transforms a harmful utilisation into an inequitable
use of the watercourse.51 Though the Court did not immerse itself in this problem,
it clearly linked 'the continuing effects of the diversion of these waters on the
ecology of the riparian area of the Szigetkoz' to its finding that, by putting 'Variant
C into operation, Czech/Slovakia was 'thereby depriving Hungary of its right to
an equitable and reasonable share of the natural resources of the Danube'. 52

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Indeed, it could be regarded as unfortunate that the Court did not avail of this
timely opportunity to deliberate more fully on the 'general customary norms on
international rivers' invoked by Hungary. 53
Weeramantry, however, in his separate opinion, advocated use of the principle
of'sustainable development' which he considered to be 'more than a mere concept,
but a principle with normative value crucial to the determination of this case'.
Referring to Czech/Slovakia's submission that 'inherent in the concept of sustain-
able development is the principle that developmental needs are to be taken into
account in interpreting and applying environmental obligations', Weeramantry
concludes that sustainable development, 'which rests on a basis of worldwide
acceptance', provides the necessary basis for the reconciliation of 'the needs of
development and the necessity to protect the environment'. While such a ringing
endorsement for the principle on the first occasion on which it has received atten-
tion in the jurisprudence of the ICJ is to be welcomed,54 it is necessary to sound
a note of caution. Weeramantry nowhere explains why he has chosen an untested
and substantively unknown concept to the exclusion of the tried and tested prin-
ciple of equitable utilisation. He states that '[T]his case offers a unique opportunity
for the application of that principle [sustainable development]' and further that
'[T]his 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 . . .'. It would appear that it offers an
equally unique opportunity, particularly as it relates to a project concerning shared
water resources, for the application of equitable utilisation, for which it would not
be necessary to divine contributory principles. The latter principle has evolved
and been positively developed specifically for the purpose of reconciling competing
needs and considerations and, indeed, is capable of taking account of a great
deal more than merely developmental and environmental considerations. The less
generally relevant principle of equitable utilisation may only be applicable to
shared watercourses but watercourses present particular problems which it has
49
Article 7.
50
See, for example, P.K. Wouters, supra, n 38 at 4ig et seq; X. Fuentes, supra, n 38 at 408-! 1; A.E. Utton,
'Which Rule Should Prevail in International Water Disputes: That of Reasonableness or That of No Harm',
Natural Resources Journal (1996) 36, 635 et scq.
31
A. Nollkaemper, supra, n 38 at 68—9. S«e X. Fuentes, ibid.
" Judgment, para 85.
" Supra, n 37.
M
It received a mention, though was not attributed normative status, in the actual decision when the Court
stated that '[TJhis need to reconcile economic development with protection of the environment is aptly expressed
in the concept of sustainable development.' See Judgment, para 140.
88 CASE LAW ANALYSIS

evolved to meet. In seeking to reconcile these two principles, it might be wiser to

think of equitable utilisation as a formulation of sustainable development applic-
able to international water resources. Also, though Weeramantry makes a very
convincing case for the proposition that sustainable development enjoys worldwide
acceptance, few would argue that equitable utilisation enjoys less support. In
addition, Weeramantry advocates examination of a variety of regimes for examples
of'environmental wisdom' which can inform application of the principle of sustain-
able development in this context. These include: the ancient irrigation-based civil-
isation of Sri Lanka; two ancient cultures of sub-Saharan Africa; the ancient quanats
of Iran; the drainage and irrigation works of ancient China and of the Inca civilis-
ation; etc. Such a diverse list of material sources does little for the legal certainty

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of the principle's application. No such search is necessary when applying the
principle of equitable utilisation as there exists a wealth of recorded State, treaty,
judicial and arbitral practice, exhaustively prepared codifications by the Interna-
tional Law Association, Institute de Droit International and the International
Law Commission, and the ILC's commentary to its Draft Articles, to inform
application of either the customary or conventional principle.
Of the five arguments advanced by Hungary to justify its termination of the
1977 Treaty, the first four were rejected by the Court by applying general custom-
ary rules of the law of treaties. Therefore, it is the fifth argument, i.e. that perform-
ance of the Treaty was precluded by new requirements of international environ-
mental law, that is of greatest interest to the environmental lawyer. It is perhaps
unfortunate that the Court did not avail of the opportunity to deliberate at length
on the status, normative content and potential application of the environmental
requirements invoked by Hungary, i.e. the obligation not to cause substantive
damage to the territory of another State and the 'precautionary principle', despite
the fact that neither party contended that these had evolved into norms of jus
cogens capable of overriding the Treaty.
Judicial guidance would have been particularly welcome as the role or possible
significance of the precautionary principle, due to its novelty and substantive
uncertainty." This is all the more true when one considers that Hungary, in its
original application to the ICJ, directly relied upon the precautionary principle
and provided a detailed argument and authorities to '. . . provide support for the
obligation in general international law to apply the precautionary principle to
13
On the precautionary principle, see, inter alia, J. Cameron and J. Abouchar, 'The Status of the Precaution-
ary Principle in International Law', in D. Freestone and E. Hey, eds, The Precautionary Prinaple and International
Law (The Hague: Kluwer, 1996) at 29-52; J. Cameron and W. Wade-Gery, 'Addressing Uncertainty: Law,
Policy and the Development of the Precautionary Principle', in B. Dente, ed., Environmental Policy in Search of New
Instruments (The Hague: Kluwer, 1995) at 95-145; D. Freestone, 'The Precautionary Principle', in R. Churchill
and D. Freestone, eds, International Law and Global Climate Change (London: Graham & Trotman, 1991) at 21; L.
Gundling, 'The Status in International Law of the Principle of Precautionary Action', in D. Freestone and T.
IJlstra, eds, The North Sea: Perspectives on Regional Environmental Cooperation, special issue of the IJECL (London:
Graham & Trotman, 1990) at 2323-30; E. Hey, 'The Precautionary Concept in Environmental Policy and Law:
Institutionalizing Caution', Georgetown International Environmental Law Review (1992) 4, 303-18; H. Hohmann,
Precautionary Legal Duties and Principles of Modem International Environmental Law (London: Graham & Trotman,
•994)5 O- Mclntyre and T. Mosedale, 'The Precautionary Principle as a Norm of Customary International
Law', JEL (1997) 9, 221-41; A Nollkaemper, 'The Precautionary Principle in International Environmental Law:
What's New Under the Sun?', Marine Pollution Bulletin (1991) 22, 107-10; B.A. Weintraub, 'Science, International
Environmental Regulation, and the Precautionary Principle: Setting Standards and Defining Terms', New York
University Environmental Law Journal (1992) 1, 173-223.
 ENVIRONMENTAL PROTECTION OF INTERNATIONAL RIVERS 89
56
protect a transboundary resource . . .'. Also, throughout the various legal argu-
ments advanced by Hungary, it consistently called for further assessment of the
environmental impacts of the project and the suspension of works pending the
results of such studies. Hungary relied heavily the Report of the ad hoc Committee
of the Hungarian Academy of Sciences57 which concluded '. . . that the environ-
mental, ecological and water quality impacts were not taken into account properly
during the design and construction period until today'. In a letter dated 24 June
1989, the Hungarian Deputy-Prime Minister informed his Czech/Slovak counter-
part that:
Having studied the expected impacts . . . the Committee of the Academy came to the conclusion

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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.'58
While dealing with the issue of whether Czech/Slovakia was entitled to proceed
with 'Variant C , the Court noted that, on 22 April 1991, Hungary formally
proposed the temporary suspension of all works and the setting up of a bilateral
committee for the assessment of environmental consequences.
In invoking an obligation to carry out environmental assessment in order to
anticipate harmful transboundary effects of new development, Hungary may be
seen to have been invoking the precautionary principle. Several commentators,
by surveying the means by which States have sought to have the precautionary
principle applied, either in the course of disputes, in 'soft law' statements on its
implementation or by means of formal conventional implementing measures, have
found that environmental assessment requirements are one of the principal means
employed.59 Indeed, both Judges Weeramantry and Palmer appear to have
emphasised the link between Environmental Impact Assessments and application
of the precautionary principle in the recent Nuclear Tests Application case.60 In his
separate opinion appended to the current case, Weeramantry expressly describes
environmental impact assessment as 'a specific application of the larger general
principle of caution'.61 Few would challenge the view that the precautionary prin-
ciple has now crystallised into an ergo omnes norm of customary international law.
M
Application of the Republic of Hungary v The Czech and Slovak Republic on the Diversion of the Danube River,
para 31, reproduced in part in P. Sands, R. Tarasofsky and M. Weiss, eds, Pnndplts of International Environmental
Law, Vol IIA: Documents in International Environmental Law (Manchester: Manchester University Press,
1994), 693-8 at 696. See O. Mclntyre and T. Mosedale, ibid at 231—2.
57
Supra, n 12.
M
See Judgment, para 35.
19
See, for example, E. Hey, supra, n 55 at 311; O. Mclntyre and T. Mosedale, supra, n 55 at 236-9. The
means of application most usually identified include: the setting of precautionary environmental standards or
requiring the use of best available technology or best environmental practices; requiring precautionary environ-
mental assessment; and/or the imposition of informational requirements, including promoting and conducting
research, collecting and sharing data, establishing programmes for scientific and technical education and train-
ing, etc.
Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of
20 December 1974 in Nuclear Tests [New Zealand v France], Order 11 IX g5, ICJ Rep [1995] 288. See O.
Mclntyre and T. Mosedale, ibid at 238.
61
A t 21.
9O CASE LAW ANALYSIS

Though few would argue that it amounts to a new rule hawing jus cogens status, it
is not entirely clear from the judgement why it could not have bound both parties
in applying Articles 15, 19 and 20 of the 1977 Treaty. Had this been found to be
the case, it seems logical to assume that the most appropriate means of applying
the precautionary principle would have been a requirement for thorough environ-
mental assessment of the impacts of the project. Indeed, at one stage, the Court
states that '[T]he awareness of the vulnerability of the environment and the recog-
nition that environmental risks have to be assessed on a continuous basis have
become much stronger in the years since the Treaty's conclusion' and that '[TJhese
new concerns have enhanced the relevance of Articles 15, 19 and 2o'.62 However,
it is clear from the judgement that the Court regarded the general obligations

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contained in the Treaty as only being capable of giving rise to specific obligations
of performance by agreement achieved through consultation and negotiation and,
that in the absence of such agreement, the substantive content of Articles 15, 19
and 20 could not be inferred from subsequently developed rules of customary
international law.
Discussing the requirement to carry out environmental impact assessment
(ElA), Weeramantry, in his separate opinion, identifies two new related principles.
Firstly, he outlines the 'principle of continuing environmental impact assessment'
to which he had alluded previously.63 Under it, he argues that many projects,
particularly those which are significant in size or scope, are subject not merely to
an assessment prior to its commencement but to 'a continuing assessment and
evaluation as long as the project is in operation'. He argues that 'Environmental
law in its current state of development would read into treaties which may reason-
ably 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'.64 Secondly, he intro-
duces the 'principle of contemporaneity in the application of environmental
norms', which supplements the former principle by providing the standard by
which the continuing assessment is to.be made. He cites with approval the Courts
statement in the present case that '[S]uch new norms have to be taken into consid-
eration, and such new standards given proper weight, not only when States con-
template new activities but also when continuing with activities begun in the
past'. 65 He cites in support, previous examples of where the Court has observed
that 'an international instrument has to be interpreted and applied within the
framework of the entire legal system prevailing at the time of the interpretation'66
but points out that, despite this principle's importance for environmental treaties,
the Vienna Convention offers little guidance. Both principles would appear cap-
able of having a major impact on international environmental law, particularly in
light of the support they appear to have received from the Court.

62
Judgment, para 112.
63
Supra, n 60 at 344.
64
At 20.
61
Judgment, para 140, see Weeramantry, p 22.
66
Namibia case, ICJ Rep 1971, p 31, para 53. See also, opinion of Judge Tanaka in South West Africa, ICJ
Rep 1966, pp 293-4.
 ENVIRONMENTAL PROTECTION OF INTERNATIONAL RIVERS 91

Interestingly, the Court appears to have endorsed the emerging customary inter-
national environmental law principle of 'intergenerational equity' by recalling
that, in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons,67
it had stated 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'.68 In further support of the precautionary principle, it is worth pointing
out that some see its theoretical origins in it being ancillary to the goal of intergen-
erational equity.69 At any rate, any ICJ endorsement of such an important and
increasingly influential concept is likely to be welcomed by scholars of interna-
tional environmental law.

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" ICJ Rep 1996, pp 241-2, para 29.

68
Cited at both Judgment, paras 53 and 112. On intergenerational equity, see, inter alia, E. Brown-Weiss,
In Fairness to Future Generations (New York: Transnational, 1989); E. Brown-Weiss, 'The Planetary Trust: Conser-
vation and Intergenerational Equity', Ecology Law Quarterly (1984) 11, 495; E. Brown-Weiss, 'Our Rights and
Obligations to Future Generations for the Environment', American Journal of International Law (1990) 84, 190. On
intergenerational equity and water resources, see E. Brown-Weiss, 'Intergenerational Fairness for Freshwater
Resources', Environmental Policy and Law, it^^l^ ('995) 2 3 ' -
69
For example, H. Hohmann, supra, n at 4-5, 11.

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