SYNTHESIS OF CASE CONCERNING THE Gabčíkovo-Nagymaros Project
International Court of Justice decision of September 25, 1997
(Hungary / Slovakia)
dispute
History This case originated in the treaty of September 16, 1977 by which the Republic of Hungary and Czechoslovakia agreed to build a system dam through a joint investment. Joint investment tended
essentially hydroelectric production, improve navigation and flood protection.
Major construction works were described in the Treaty. Two sets of locks ("gate") were planned, one in Gabcikovo (Czechoslovakia) and one in Nagymaros (Hungary). Given
to build a unique and indivisible the court observed that the draft day as a joint project presented as integrated, in which both contracting parties were on an equal footing with regard to financing and exploitation of the work.
In Hungary criticism of the project were raised about the impact this had on the environment. Thus, the Hungarian government decided on May 13, 1989, stop work at Nagymaros (slopes were several studies that were completed before 31 July of that year.) On July 21 the Hungarian Government extended the suspension of the works at Nagymaros until 31 October, and also decided to stay Dunakiliti work on the same date. Finally, on October 27, 1989. Hungary decided to abandon the works at Nagymaros and to maintain the status quo in Dunakiliti.
During this period, the parties held negotiations. Czechoslovakia proposed a solution hereinafter called "Variant C", which involved changing the course of water in unilaterally by Czechoslovakia, always within its territory. In its last stage, the Alternative C involved the construction of a separation barrier in the Danube water and a dam.
On July 23, 1991 the Slovak government decided to start "in September 1991 - construction in order to allow the exploitation of project as Alternative C.
There were discussions between the parties and in May of 1992 the Hungarian government submitted to the Slovak government ending a note verbale to the Treaty of 1977.
On October 15, 1992 Czechoslovakia's work finally began shutting down the Danube.
Suspension and abandonment by Hungary of the work on the project.
The Court considered that although the treaty in question was signed in 1977 and the parties invoked the provisions of the Vienna Convention on the Law of Treaties of 1969, which came into force in 1980, the articles concerning the suspension treaty (articles 60 and 62) were collected from customary rules existing.
The behavior of Hungary to suspend and abandon the work of 1989 can not be interpreted as their desire not to run at least some provisions of the 1977 Treaty and the Protocol of 1989.
The effect of the behavior of Hungary has been unable to carry out works to the 1977 Treaty explicitly called unique and invisible.
The Court examined whether there was a "necessity" in 1989 that would allow Hungary to suspend and abandon the work without this implying an international responsibility. In this regard found that both Nagymaros case as Gabcikovo the dangers raised by Hungary in 1989 were not sufficiently established or eran inminentes (condiciones necesarias para invocar un estado de necesidad). Hungría disponía en ese momento de otros medios, sin que fuera necesario abandonar los trabajos.
Así la Corte concluyó que Hungría no tenía derecho de suspender y luego de abandonar en 1989 los trabajos relativos al proyecto Nagaymaros y la parte del proyecto Gabcikovo de la cual era responsable según los términos del Tratado de 1977.
Checoslovaquia ha sostenido que el recurso de la Variante C y su puesta en marcha no constituían ilícitos internacionales. Sostuvo que la decisión de abandonar los trabajos por parte de Hungría la llevó a recurrir a una solución que estuviera próxima al proyecto inicial, invocando el principle of "approximate application" and "to enforce the treaty in good faith."
As the Court noted, the key feature of the 1997 Treaty is, in its first article to "provide for the construction of the dam system as a joint venture constituting a single set of unique and indivisible." It is also envisaged that joint ownership of operating system and also together as a single coordinated entity. Alternative C therefore differs radically from the initial project. The Court observes that, consequently, Czechoslovakia viola express variant and essential provisions of the 1977 Treaty by committing an internationally wrongful act.
Czechoslovakia has argued that its action was motivated by an obligation to mitigate damages caused by the non-compliance with the Treaty by Hungary. Hungary
Reasons for terminating the 1977 Treaty
- State of Necessity: The Court notes that although it had been established that no state of necessity could lead to termination of the Treaty. The state of necessity can not be invoked to exonerate more than its responsibility a State which does not execute an agreement.
- Impossibility of performance: The Court believes that a legal regime change does not mean the disappearance of an object indispensable basic implementation (Article 61 of the Vienna Convention on the Law of Treaties). In the early 1990's Czechoslovakia split into Czech Republic and Slovakia, which is responsible and integral part of the Treaty.
- Fundamental change of circumstances: For the Court, changes in circumstances that Hungary relies political changes as the dissolution of Czechoslovakia and changes in organic matter, can not be taken as having the effect of changes radically transform the remaining obligations of the treaty. The court also refers to Article 12 of the 1978 Vienna Convention on Succession States in Respect of Treaties which reflects the principle that a succession of treaties has no effect on territorial treaties.
- Substantial Violation of the Treaty: Hungary's main argument invoked as substantial violation of a treaty is the construction of the implementation of Alternative C. The Court concluded that Czechoslovakia has not violated the treaty so far as it derives the Danube in 1992. Accordingly, the notice of 19 May 1992 terminating the treaty, was premature since there was no violation of the Treaty by Czechoslovakia at that time.
Legal Consequences of the ruling
In these conditions is of paramount importance that the Court has determined that the 1977 Treaty is in force between the parties and consecunacia governs relations between the two countries.
The court emphasized that the Treaty of 1977 not only provides an overall investment plan for energy production, but also serve other objectives such as improving navigation of the Danube and to protect the natural environment.
so the Court believes the parties should see how they cope with 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 covenants are servants) (Article 26 of the Vienna Convention on the Law of Treaties) requires the parties to find a mutually agreed solution within the framework of the cooperation envisaged by the Treaty. Article 26 combines two essential elements that are of importance, provides that every treaty in force binds the parties and must be performed in good faith.
Under the Treaty the principal works of the system are jointly owned by the parties and are considered as the unit coordinated with benefits distributed equally. For this reason the Court believes that Alternative C can only be put into operation in accordance with the object and purpose of the treaty.
The Court believes that given that both parties have cross wrongdoing, the issue of compensation could be resolved satisfactorily if each waives all claims and counterclaims financial.
International Court of Justice decision of September 25, 1997
(Hungary / Slovakia)
dispute
History This case originated in the treaty of September 16, 1977 by which the Republic of Hungary and Czechoslovakia agreed to build a system dam through a joint investment. Joint investment tended
essentially hydroelectric production, improve navigation and flood protection.
Major construction works were described in the Treaty. Two sets of locks ("gate") were planned, one in Gabcikovo (Czechoslovakia) and one in Nagymaros (Hungary). Given
to build a unique and indivisible the court observed that the draft day as a joint project presented as integrated, in which both contracting parties were on an equal footing with regard to financing and exploitation of the work.
In Hungary criticism of the project were raised about the impact this had on the environment. Thus, the Hungarian government decided on May 13, 1989, stop work at Nagymaros (slopes were several studies that were completed before 31 July of that year.) On July 21 the Hungarian Government extended the suspension of the works at Nagymaros until 31 October, and also decided to stay Dunakiliti work on the same date. Finally, on October 27, 1989. Hungary decided to abandon the works at Nagymaros and to maintain the status quo in Dunakiliti.
During this period, the parties held negotiations. Czechoslovakia proposed a solution hereinafter called "Variant C", which involved changing the course of water in unilaterally by Czechoslovakia, always within its territory. In its last stage, the Alternative C involved the construction of a separation barrier in the Danube water and a dam.
On July 23, 1991 the Slovak government decided to start "in September 1991 - construction in order to allow the exploitation of project as Alternative C.
There were discussions between the parties and in May of 1992 the Hungarian government submitted to the Slovak government ending a note verbale to the Treaty of 1977.
On October 15, 1992 Czechoslovakia's work finally began shutting down the Danube.
Suspension and abandonment by Hungary of the work on the project.
The Court considered that although the treaty in question was signed in 1977 and the parties invoked the provisions of the Vienna Convention on the Law of Treaties of 1969, which came into force in 1980, the articles concerning the suspension treaty (articles 60 and 62) were collected from customary rules existing.
The behavior of Hungary to suspend and abandon the work of 1989 can not be interpreted as their desire not to run at least some provisions of the 1977 Treaty and the Protocol of 1989.
The effect of the behavior of Hungary has been unable to carry out works to the 1977 Treaty explicitly called unique and invisible.
The Court examined whether there was a "necessity" in 1989 that would allow Hungary to suspend and abandon the work without this implying an international responsibility. In this regard found that both Nagymaros case as Gabcikovo the dangers raised by Hungary in 1989 were not sufficiently established or eran inminentes (condiciones necesarias para invocar un estado de necesidad). Hungría disponía en ese momento de otros medios, sin que fuera necesario abandonar los trabajos.
Así la Corte concluyó que Hungría no tenía derecho de suspender y luego de abandonar en 1989 los trabajos relativos al proyecto Nagaymaros y la parte del proyecto Gabcikovo de la cual era responsable según los términos del Tratado de 1977.
Checoslovaquia ha sostenido que el recurso de la Variante C y su puesta en marcha no constituían ilícitos internacionales. Sostuvo que la decisión de abandonar los trabajos por parte de Hungría la llevó a recurrir a una solución que estuviera próxima al proyecto inicial, invocando el principle of "approximate application" and "to enforce the treaty in good faith."
As the Court noted, the key feature of the 1997 Treaty is, in its first article to "provide for the construction of the dam system as a joint venture constituting a single set of unique and indivisible." It is also envisaged that joint ownership of operating system and also together as a single coordinated entity. Alternative C therefore differs radically from the initial project. The Court observes that, consequently, Czechoslovakia viola express variant and essential provisions of the 1977 Treaty by committing an internationally wrongful act.
Czechoslovakia has argued that its action was motivated by an obligation to mitigate damages caused by the non-compliance with the Treaty by Hungary. Hungary
Reasons for terminating the 1977 Treaty
- State of Necessity: The Court notes that although it had been established that no state of necessity could lead to termination of the Treaty. The state of necessity can not be invoked to exonerate more than its responsibility a State which does not execute an agreement.
- Impossibility of performance: The Court believes that a legal regime change does not mean the disappearance of an object indispensable basic implementation (Article 61 of the Vienna Convention on the Law of Treaties). In the early 1990's Czechoslovakia split into Czech Republic and Slovakia, which is responsible and integral part of the Treaty.
- Fundamental change of circumstances: For the Court, changes in circumstances that Hungary relies political changes as the dissolution of Czechoslovakia and changes in organic matter, can not be taken as having the effect of changes radically transform the remaining obligations of the treaty. The court also refers to Article 12 of the 1978 Vienna Convention on Succession States in Respect of Treaties which reflects the principle that a succession of treaties has no effect on territorial treaties.
- Substantial Violation of the Treaty: Hungary's main argument invoked as substantial violation of a treaty is the construction of the implementation of Alternative C. The Court concluded that Czechoslovakia has not violated the treaty so far as it derives the Danube in 1992. Accordingly, the notice of 19 May 1992 terminating the treaty, was premature since there was no violation of the Treaty by Czechoslovakia at that time.
Legal Consequences of the ruling
In these conditions is of paramount importance that the Court has determined that the 1977 Treaty is in force between the parties and consecunacia governs relations between the two countries.
The court emphasized that the Treaty of 1977 not only provides an overall investment plan for energy production, but also serve other objectives such as improving navigation of the Danube and to protect the natural environment.
so the Court believes the parties should see how they cope with 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 covenants are servants) (Article 26 of the Vienna Convention on the Law of Treaties) requires the parties to find a mutually agreed solution within the framework of the cooperation envisaged by the Treaty. Article 26 combines two essential elements that are of importance, provides that every treaty in force binds the parties and must be performed in good faith.
Under the Treaty the principal works of the system are jointly owned by the parties and are considered as the unit coordinated with benefits distributed equally. For this reason the Court believes that Alternative C can only be put into operation in accordance with the object and purpose of the treaty.
The Court believes that given that both parties have cross wrongdoing, the issue of compensation could be resolved satisfactorily if each waives all claims and counterclaims financial.
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