FACULTAD DE ESPECIALIDADES EMPRESARIALES

CARRERA DE COMERCIO Y FINANZAS INTERNACIONALES BILINGÜE

INTERNATIONAL LAW

CASE STUDY: GABCIKOVO – NAGYMAROS (HUNGRARY / SLOVAKIA)

AUTHOR:

MARÍA DE LOS ÁNGELES MACIAS

TEACHER:

JOSÉ DE ABREU

2020-2021
 INDEX

GABCIKOVO – NAGYMAROS (HUNGRARY / SLOVAKIA) ..................................................... 3

SUSPENSION AND ABANDONMENT BY HUNGARY OF THE WORK RELATED TO THE
PROJECT. .......................................................................................................................................... 4
HUNGARY'S REASONS FOR TERMINATING THE TREATY IN 1977.................................... 5
State of Necessity ................................................................................................................ 5
Impossibility of execution .................................................................................................. 5
Fundamental change of circumstances ......................................................................... 5
Substantial violation of the Treaty ................................................................................... 5
LEGAL CONSEQUENCES OF THE SENTENCE ........................................................................ 6
 GABCIKOVO – NAGYMAROS (HUNGRARY / SLOVAKIA)

The case originated in the treaty of September 16, 1977 by which the Republic of
Hungary and Czechoslovakia agreed to build a dam system through a joint investment.

The joint investment was essentially aimed at hydroelectric production, improved

navigation and protection against floods.

The main works to be built were described in the Treaty. Two sets of locks (“gates”)
were planned, one in Gabcikovo (Czechoslovakia) and one in Nagymaros (Hungary).

In view of building a single and indivisible system, the court observed that the day
project would therefore be presented as an integrated joint project, in which both
contracting parties were on an equal footing with regard to the financing and
exploitation of the work.

Criticism of the project was drawn in Hungary because of the effects it had on the
environment. Thus, the Hungarian Government decided on May 13, 1989, to suspend
the work of Nagymaros (several studies were pending that should be completed before
July 31 of that year). On July 21, the Hungarian Government extended the suspension
of works in Nagymaros until October 31, and also decided to suspend works in
Dunakiliti until the same date. Finally, on October 27, 1989. Hungary decided to
abandon the jobs in Nagymaros and maintain the status quo in Dunakiliti.

During this period, the parties held negotiations. Czechoslovakia proposed a solution
called hereinafter "Alternative C", which implied the change of the watercourse
unilaterally by Czechoslovakia, always within its territory. In its last stage, Variant C
involved the construction of a watershed barrier on the Danube and of a dike.

On July 23, 1991, the Slovak government decided to start -in September 1991-
construction in order to allow the exploitation of the project as Variant C.

There were discussions between both parties and in May 1992 the Hungarian
government sent the Slovak government a note verbale ending the 1977 Treaty.

On October 15, 1992 Czechoslovakia finally began work causing the closure of the
Danube.
SUSPENSION AND ABANDONMENT BY HUNGARY OF THE WORK RELATED
TO THE PROJECT.

The Court considered that although the treaty in question was signed in 1977 and the
parties invoked the clauses of the 1969 Vienna Convention on the Law of Treaties,
which entered into force in 1980, the articles referring to the suspension of treaties
(Articles 60 and 62) were collected from existing customary rules.

Hungary's behavior in suspending and abandoning the 1989 works cannot be

interpreted as its willingness not to implement at least certain provisions of the 1977
Treaty and the 1989 Protocol.

The effect of Hungary's behavior has led to the impossibility of carrying out works that
the 1977 Treaty expressly qualified as unique and invisible.

The Court examined whether there was a "state of necessity" in 1989 that would allow
Hungary to suspend and abandon the work without implying international
responsibility. In this regard, it considered that in the case of both Nagymaros and
Gabcikovo, the dangers invoked by Hungary were not sufficiently established in 1989
or imminent (conditions necessary to invoke a state of necessity). Hungary had other
means at its disposal at that time, without the need to abandon work.

Thus the Court concluded that Hungary had no right to suspend and after abandon in
1989 the work relating to the Nagaymaros project and the part of the Gabcikovo project
for which it was responsible under the terms of the 1977 Treaty.

Czechoslovakia has maintained that the Alternative C recourse and its implementation
did not constitute international illicit. It argued that Hungary's decision to abandon the
work led it to resort to a solution that was close to the initial project, invoking the
principle of “application by approximation” and that of “enforcing the treaty in good
faith”.

As the Court has observed, the fundamental characteristic of the 1997 Treaty is,
according to its first article, that of “providing for the construction of the dam system
as a joint investment, constituting a single, single and indivisible system of works”.
Likewise, joint ownership of said system and joint exploitation as a single and
coordinated entity were also envisaged. For this reason, Alternative C differs radically
from the initial project. The Court observes that, consequently, Czechoslovakia
violates express and essential provisions of the 1977 Treaty by committing an
internationally wrongful act.

Czechoslovakia has maintained that its action was motivated by an obligation to

mitigate the damage caused by Hungary's non-compliance with the Treaty.

HUNGARY'S REASONS FOR TERMINATING THE TREATY IN 1977

• State of Necessity: The Court observes that even if a state of necessity had
been established it could not bring about the end of the Treaty. The state of
necessity can only be invoked to exonerate a State that does not execute an
agreement of its responsibility.
• Impossibility of execution: The Court believes that a change in the legal
regime does not imply the disappearance of an essential object indispensable
for execution (Article 61 of the Vienna Convention on the Law of Treaties). In
the early 1990s Czechoslovakia was divided into the Czech Republic and the
Slovak Republic, which remains a responsible and integral part of the Treaty.
• Fundamental change of circumstances: For the Court, the changes of
circumstances that Hungary invokes, political changes such as the dissolution
of Czechoslovakia or changes in ecological matters, cannot be taken as
changes that have the effect of radically transforming the fulfillment of the
remaining obligations of the treaty. The court also refers to article 12 of the 1978
Vienna Convention on Succession of States in respect of Treaties, which
reflects the principle according to which a succession of treaties has no effect
on treaties of a territorial nature.
• Substantial violation of the Treaty: Hungary's main argument insofar as it
invokes the substantial violation of a treaty is the construction of the
implementation of Alternative C. The Court has concluded that Czechoslovakia
has not violated the treaty up to the point in which it derives the waters of the
Danube in 1992. Consequently, the notification of May 19, 1992 terminating the
Treaty was premature as there was no violation of the Treaty by
Czechoslovakia at that time.
LEGAL CONSEQUENCES OF THE SENTENCE

Under these conditions, it is of paramount importance that the Court has verified that
the 1977 Treaty is in force between the parties and consequently governs relations
between the two countries.

The court stresses that the 1977 Treaty does not only provide for a joint investment
plan for energy production, but would also serve other objectives such as improving
the navigation of the Danube or the protection of the natural environment.

The Court thus believes that the parties must see how they find solutions to meet the
multiple objectives of the treaty. It is clear that the impact of the project on the
environment will be a key issue.

The Court considers that the rule Pacta sunt Servando (of the pacts we are servants)
(Article 26 of the Vienna Convention on the Law of Treaties) requires the parties to
find by common agreement a solution within the framework of the cooperation
provided for by the Treaty. Article 26 associates two elements that are of essential
importance: it provides that every Treaty in force binds the parties and must be
complied with in good faith.

According to the Treaty, the main works of the system are joint property of the parties
and are considered as a coordinated unit with benefits distributed in equal parts. For
this reason, the Court believes that Alternative C can only be put into operation in
accordance with the objective and purpose of the treaty.

The Court believes that taking into account that both parties have committed wrongful
acts, the issue of compensation could be resolved in a satisfactory manner if each
waives all financial claims and counterclaims.