Case Analysis Gahna Rajani (18BBL012)

CE III

Case Analysis

Gabcikovo-Nagymaros Case

 FACTS OF THE CASE:

The dispute arose out of a treaty signed between the Hungarian People’s Republic and the
Czechoslovak People’s republic signed on 16th September 1977 for construction and
operation of the Gabcikovo-Nagymaros System of locks. This was a joint investment of both
the countries primarily for the purpose of producing hydroelectricity and improving the
navigation system in the relevant parts of river Danube. Due to political pressure for the
environmental consequences of this project, Hungary unilaterally terminated the treaty.
Slovakia, unilaterally diverted the river into its territory and from 23rd October 1992, started
its work on ‘Variant C’. In April 1993, Hungary and Slovakia entered into a compromis and
requested the ICJ to decide whether Hungary was unilaterally entitled to terminate the treaty.

 ISSUES RAISED:

In order to decide the matter, the issues before the court were:

1. Whether Hungary was entitled to terminate the treaty and subsequently abandon the work
in 1989?

2. Was Slovakia entitled to proceed with ‘Variant C’, put into operation from October 1992?

3. Whether there were any legal effects of the notification of termination provided by
Hungary?

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 ARGUMENTS PRESENTED:
 On behalf of Hungary

Issue 1

Hungary's argument was 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 then reject that Treaty. And to justify itself in
abandoning the treaty, it relied on ‘state of ecological necessity’. Furthermore, it contended
that the treaty ceased to exist from 31st December, 1992 itself because the Czechoslovakia
republic ceased to exist as a legal entity and separated into Slovakia and Czech Republic.

Issue 2

Hungary also argued that Article 1, 8 and 10 of the 1977 Treaty provides for joint ownership
and operation of the project as a coordinated single unit. ‘Variant C’ ensures unilateral action
carried out by Slovakia which violates the express provisions of the treaty and therefore,
constitute as a wrongful act.

Issue 3

Hungary first contented the notification of termination of the Treaty on the ground of
emergence of “state of necessity” and that there was a state of impossibility to perform the
treaty due to ecological and economic imperatives which defeated the ‘object’ of the treaty
and it ceased to exist.

It further contended fundamental change of circumstances as a ground for notification of

termination of the Treaty because of the prevalent political and economic conditions in
Hungary and the emergence of environmental law which was unforeseen at the time of the
conclusion of the 1977 Treaty. Hungary later contends Article 60 of the Law of Treaties and
invokes a material breach of the Treaty as a ground for terminating the Treaty. The material
breach involves the construction and putting into operation of Variant C.

Hungary lastly contends the emergence of new norms of international environmental law
contends fundamental change of circumstances as a ground for notification of termination of
the Treaty because development of jus cogens norms invokes Article 64 of the Law of the
Treaties.

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 On behalf of Slovakia
Issue 1

The conduct of Hungary by abandoning the works of the project can only be interpreted as an
expression of its unwillingness to comply with the provisions of the Treaty and the Protocol
of 6 February 1989, as specified in the Joint Contractual Plan. The effect of Hungary's
conduct was to render impossible the accomplishment of the system of works that the Treaty
expressly described as "single and indivisible"

It is crucial to understand that there was no state of necessity which due to which Hungary
can be permitted, without incurring international responsibility, to suspend and abandon
works that it was committed to perform in accordance with the 1977 Treaty and related
instrument. The state of necessity is a ground recognised by customary international law for
precluding the wrongfulness of an act not in conformity with an international obligation but it
can only be accepted under rare circumstances.

Issue 2

• Proceeding to Variant C and putting it into operation did not constitute any Internationally
Wrongfully Act. Hungary's decision to suspend and subsequently abandon the: construction
of works at Danube had made it impossible for Czechoslovakia to carry out the works as
initially contemplated by the 1977 Treaty and that’s Slovakia was therefore entitled to
proceed with a solution which was close to the original Project as much as possible.

Slovakia was acting under a duty to mitigate damages when it carried out ‘variant C’ which
is a general principle under International Law to mitigate the damage sustained

Issue 3

In constructing the works which would lead to the putting into operation of Variant C,
Czechoslovakia did not act unlawfully. 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 terminating it when it did in the Joint Contractual Plan.

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 RATIO:
Issue 1

The Court rejected this contention and observed that the conduct of Hungary itself reflected the
unwillingness to comply with the provisions of the Treaty and Protocol of 6 th February, 1989
which was made with the purpose to accelerate the project.

It observed that the state of necessity is recognized by customary international law and is taken
to preclude the wrongful act which is not in conformity with an international obligation and
such defence could only be taken in exceptional circumstances. The Court further took support
of Article 25 of the Draft Article on the International Responsibility of States which states that
Necessity can only be invoked if such ground is the only way to protect an essential interest
against grave and eminent peril and if seriously harms an essential interest of State itself or
State to which obligation exists or towards international community as a whole.
The Court acknowledged the fact that the natural environment was affected due to the
construction of the Dam which relates to essential interest however, such perils were not grave
and eminent in nature and Hungary could very well have taken other measures other than
suspension and abandonment to resist against “perceived perils. The Court also went for
fictional situation that even if the Hungary established that there was a State of Necessity, it
would not have been permitted as the Hungary itself contributed to such situation.

Issue 2

Court found unnecessary to determine that whether Principle of Approximate Application is

a principle of International law or general law because even if such principle existed, it could
have been incorporated in the definition clause of the Treaty.
Court on perusing Article 1, 8 and 10, interpreted that these provisions reflected the basic
characteristic of the Treaty 1977 that is to construct the Gabcikovo-Nagymaros System of
Locks as a joint investment constituting a single and indivisible operational system of works.
Thus, from these provisions, unilateral actions could not be inferred and thus, though the
Variant C was similar to original project, its operation was against some provisions of the
Treaty and Czechoslovakia has committed international wrongful act.
Court observed that the principle to mitigate damages cannot go contrary to justify wrongful
acts and hence, Czechoslovakia was not entitled to operationalize Variant C from October
1992. The

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Issue 3
State of Necessity: Court, while interpreting Article 25 of the Draft Article on the
International Responsibility of States, observed that in the instant case, there were no
exceptional circumstances and Hungary could have very well taken the other measures other
than suspension and abandonment to resist against “perceived perils”.
Impossibility of performance: Court found that Article 61 of the Vienna Convention which
states about impossibility of performance due to the permanent disappearance or destruction
of the object of the Treaty. Here, Court found that it is not necessary to determine the object
of the Treaty. Even if Article 61 would have been invoked, the instant case would not be the
case of impossibility of performance as the obligation was breached by part itself. Even after
perusing Article 15, 19 and 20, it could be inferred that various means were available for the
parties to make readjustments in economic and ecological factors through negotiations.
Fundamental Change of Circumstances: Keeping in mind Article 15, 19 and 20 which
provides recourse for the adjustments, the changed circumstances advanced by Hungary were
not of such nature that it would radically transform the extent of such obligations that were
still to be performed in order to accomplish the project.
Material breach of Treaty: Court observed that operationalizing Variant C was violating the
provisions of Treaty while construction for implementation of Variant C was not unlawful act
and hence, Hungary was not entitled to invoke any such breach of Treaty as a ground to
terminate the same which had not yet taken place.

Thus, Court concluded that both the parties failed to comply with the obligations to treaty
and the conduct of the parties neither brought end to the Treaty nor justified its
termination. Therefore, it held that both the parties needed to reach an amicable solution in
good faith, through discussions and negotiations.

 ANALYSIS:

The Gabcikovo-Nagymaros case was one of the first environmental disputes taken to the ICJ
in which the court had also paid a visit to the site of construction, something that had never
happened before in history, thus is plays an important role in how the environmental laws and
cases are looked at internationally. The court upheld the treaty with the view that it never
ceased to exist.

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Hungary had failed to perform its obligations to complete the work at Nagymaros. When
Hungary expressed its inability to perform the obligations, most of the work was completed at
the Gabcikovo section of the barrage system. At that time, Czechoslovakia was entitled to
terminate the treaty under the Vienna Convention on Law of Treaties, 1969 under Article 60.
However, it did not chose that option, rather continued to respect the treaty while looking for
alternative solutions. Furthermore, it also made the situation more difficult for
Czechoslovakian government not just because a huge investment was made in that treaty, but
also because there was an environmental impact of the unfinished work at the site. And so, it
was not possible to completely remove the work that had been at the water works. So, Slovakia
started looking for alternative ‘temporary’ options to finish the work at their part of the lock
system. Now, this was done to fulfil the object and purpose of the 1977 treaty and was nothing
unlawful in the same. Now, there was some unfinished construction in Hungary too which
could not have been completed without violating Hungary’s sovergeinity or without getting
their consent to complete the work. So Slovakia was faced with a tough situation on having to
decide quickly in order to reduce the economic and ecological harms of incomplete
construction. For this, constructing the ‘Variant C’ which was merely a temporary solution and
could be turned around, as and when Hungary continued its work at the plant. So, Slovakia had
not violated any treaty by constructing an alternative, after Hungary violated the 1977 treaty.
This was similarly opined by Judge Parra Aranguren in his dissent on the judgement that
Slovakia had committed a wrongful act and violated the 1977 treaty by unilaterally working on
a ‘Variant C’.

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