97/4R
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 1997
Public sitting
held on Wednesday 5 March 1997, at 10 a.m., at the Peace Palace,
President Schwebel presiding
in the case concerning Gabcíkovo-Nagymaros Project
(Hungary/Slovakia)
_______________
VERBATIM RECORD
_______________
ANNEE 1997
Audience publique
tenue le mercredi 5 mars 1997, à 10 heures, au Palais de la Paix,
sous la présidence de M. Schwebel, Président
en l'affaire relative au Projet Gabcíkovo-Nagymaros
(Hongrie/Slovaquie)
____________
COMPTE RENDU
____________
Present: PresSidentbel -2-
Vice-PWeeeramantry
Oda Judges
Bedjaoui
Guillaume
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin
Parra-Aranguren
Kooijmans
Rezek
Judge ad hoc Skubiszewski
ValRegiastrarina -3-
Présents : M. Schwebel, Président
WeerVice-Pryésident
Oda MM.
Bedjaoui
Guillaume
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin
Parra-Aranguren,
Kooijmans
jugeszek,
Skubijugewski, ad hoc
ValenMciGresffier, -4-
The Republic of Hungary is represented by:
H.E. Mr. György Szénási, Ambassador, Head of the International Law
Department, Ministry of Foreign Affairs,
as Agent and Counsel;
H.E. Mr. Dénes Tomaj, Ambassador of the Republic of Hungary to the
Netherlands,
as-Agent;
Mr. James Crawford, Whewell Professor of International Law,
University of Cambridge,
Mr. Pierre-Marie Dupuy, Professor at the University Panthéon-Assas
(Paris II) and Director of the Institut des hautes études
internationales of Paris,
Mr. Alexandre Kiss, Director of Research, Centre National de la
recherche Scientifique (ret.),
Mr. László Valki, Professor of International Law, Eötvös Lorand
University, Budapest,
Mr. Boldizsár Nagy, Associate Professor of International Law,
Eötvös Loránd University, Budapest,
Mr. Philippe Sands, Reader in International Law, University of
London, School of Oriental and African Studies, and Global
Professor of Law, New York University,
Ms Katherine Gorove, consulting Attorney,
as Counsel and Advocates;
Dr. Howard Wheater, Professor of Hydrology, Imperial College,
London,
Dr. Gábor Vida, Professor of Biology, Eötvös Loránd University,
Budapest, Member of the Hungarian Academy of Sciences,
Dr. Roland Carbiener, Professor emeritus of the University of
Strasbourg,
Dr. Klaus Kern, consulting Engineer, Karlsruhe,
asvocates;
Mr. Edward Helgeson,
Mr. Stuart Oldham,
asvisers; -5-
La République de Hongrie est représentée par :
S. Exc. M. György Szénási, ambassadeur, directeur du département du
droit international au ministère des affaires étrangères,
comme agent et conseil;
S. Exc. M. Dénes Tomaj, ambassadeur de la République de Hongrie aux
Pays-Bas,
commeagent ;
M. James R. Crawford, professeur de droit international, titulaire
de la chaire Whewell à l'Université de Cambridge,
M. Pierre-Marie Dupuy, professeur à l'Université Panthéon-Assas
(Paris II) et directeur de l'Institut des hautes études
internationales de Paris,
M. Alexandre Kiss, directeur de recherches au Centre national de la
recherche scientifique (en retraite),
M. Lászlo Valki, professeur de droit international à l'Université
Eötvös Lorand de Budapest,
M. Boldizsár Nagy, professeur associé de droit international à
l'Université Eötvös Lorand de Budapest,
M. Philippe Sands, chargé de cours en droit international à
l'Université de Londres, School of Oriental and African Studies,
et Global Professor of Law à l'Université de New York,
Mme Katherine Gorove, juriste-conseil,
comme conseils et avocats;
M. Howard Wheater, professeur d'hydrologie à l'Imperial College de
Londres,
M. Gábor Vida, professeur de biologie à l'Université Eötvös Lorand
de Budapest, membre de l'Académie des sciences de Hongrie,
M. Roland Carbiener, professeur émérite de l'Université de
Strasbourg,
M. Klaus Kern, ingénieur-conseil à Karlsruhe,
comameocats ;
M. Edward Helgeson,
M. Stuart Oldham,
commenseillers ; -6-
Dr. György Kovács,
Mr. Timothy Walsh,
as Technical Advisers;
Dr. Attila Nyikos,
assistant;
Ms Éva Kocsis,
Ms Katinka Tompa,
ascretaries.
The Republic of Slovakia is represented by:
H.E. Dr. Peter Tomka, Ambassador, Legal Adviser of the Ministry of
Foreign Affairs,
asent;
Dr. Václav Mikulka, Member of the International Law Commission,
as Co-Agent, Counsel and Advocate;
Mr. Derek W. Bowett, C.B.E., Q.C., F.B.A., Emeritus Whewell
Professor of International Law at the University of Cambridge,
Former Member of the International Law Commission,
asunsel;
Mr. Stephen C. McCaffrey, Professor of International Law at the
University of the Pacific, McGeorge School of Law, Sacramento,
United States of America, Former Member of the International Law
Commission,
Mr. Alain Pellet, Professor at the University of Paris X — Nanterre
and at the Institute of Political Studies, Paris, Member of the
International Law Commission,
Mr. W. Walter D. Sohier, Member of the Bar of the State of New York
and of the District of Colombia,
Sir Arthur Watts, K.C.M.G., Q.C., Barrister, Member of the Bar of
England and Wales,
Mr. Samuel S. Wordsworth, avocat à la Cour au barreau de Paris,
Solicitor England and Wales, Frere Cholmeley, Paris,
as Counsel and Advocates;
Mr. Igor Mucha, Professor of Hydrogeology and Former Head of the
Groundwater Department at the Faculty of Natural Sciences of
Comenius University in Bratislava, -7-
M. György Kovács,
M. Timothy Walsh,
comme conseillers techniques;
M. Attila Nyikos,
commesistant ;
Mme Éva Kocsis,
Mme Katinka Tompa,
commecrétaires .
La République slovaque est representée par :
S. Exc. M. Peter Tomka, ambassadeur, conseiller juridique du
ministère des affaires étrangères,
commeent ;
M. Václav Mikulka, membre de la Commission du droit international,
comme coagent, conseil et avocat;
M. Derek W. Bowett, C.B.E., Q.C., F.B.A., professeur émérite, ancien
titulaire de la chaire Whewell à l'Université de Cambridge, ancien
membre de la Commission du droit international,
commenseil ;
M. Stephen C. McCaffrey, professeur de droit international à la
faculté de droit McGeorge de l'Université du Pacifique, Sacramento
(Etats-Unis d'Amérique), ancien membre de la Commission du droit
international,
M. Alain Pellet, professeur à l'Université de Paris X-Nanterre et à
l'Institut d'études politiques de Paris, membre de la Commission du
M. Walter D. Sohier, membre des barreaux de l'Etat de New York et du
district de Columbia,
Sir Arthur Watts, K.C.M.G., Q.C., avocat au barreau d'Angleterre et
du pays de Galles,
M. Samuel S. Wordsworth, avocat à la Cour, Frere Cholmeley, Paris,
Solicitor auprès de la Cour suprême d'Angleterre et du pays de
Galles,
comme conseils et avocats;
M. Igor Mucha, professeur d'hydrogéologie et ancien directeur du
département des eaux souterraines à la faculté des sciences
naturelles de l'Université Comenius de Bratislava,
Mr. Karra Venkateswara Rao, Director of Water Resources Engineering, -8-
Department of Civil Engineering, City University, London,
Mr. Jens Christian Refsgaard, Head of Research and Development,
Danish Hydraulic Institute,
as Counsel and Experts;
Dr. Cecília Kandrá_ová, Director of Department, Ministry of Foreign
Affairs,
Mr. Lud_k Krajhanzl, Attorney at Law, Vyroubal Krajhanzl Skácel and
Partners Law Firm, Prague,
Mr. Miroslav Liška, Head of the Division for Public Relations and
Expertise, Water Resources Development State Enterprise,
Bratislava,
Dr. Peter Vršanský, Minister-Counsellor, chargé d'affaires a.i. of
the Embassy of the Slovak Republic, The Hague,
asunsellors;
Ms Anouche Beaudouin, allocataire de recherche at the University
of Paris X — Nanterre,
Ms Cheryl Dunn, Frere Cholmeley, Paris,
Ms Nikoleta Glindová, attachée, Ministry of Foreign Affairs,
Mr. Drahoslav Štefánek, attaché, Ministry of Foreign Affairs,
as Legal Assistants. -9-
M. Karra Venkateswara Rao, directeur du Génie, section des
ressources hydrologiques, département du Génie civil, Université
de la ville de Londres,
M. Jens Christian Refsgaard, directeur de la recherche et du
développement à l'Institut danois d'hydraulique,
comme conseils et experts;
Mme Cecília Kandrá_ová, directeur de département, ministère des
affaires étrangères,
M. Lud_k Krajhanzl, avocat, membre du cabinet Vyroubal Krajhanzl
Skácel et associés, Prague,
M. Miroslav Liška, directeur de la division des relations publiques
et de l'expertise, entreprise d'Etat pour le développement des
ressources hydrauliques, Bratislava,
M. Peter Vršanský, ministre-conseiller, chargé d'affaires a.i. à
l'ambassade de la République slovaque, La Haye,
commenseillers ;
Mlle Anouche Beaudouin, allocataire de recherche à l'Université de
Paris X-Nanterre,
Mme Cheryl Dunn, Frere Cholmeley, Paris,
Mme Nikoleta Glindová, attachée, ministère des affaires étrangères,
M. Drahoslav Štefánek, attaché, ministère des affaires étrangères,
comme assistants juridiques. -10-
The PRESIDENT: Please be seated. Good morning. We now proceed with the oral
presentations of the Republic of Hungary and I call on Professor James Crawford.
CMRr. WFORD:
10. THE SUSPENSION AND TERMINATION OF WORKS
THE LEGAL STANDARDS APPLIED
I NTRODUCTION
1. Mr. President, Members of the Court. I turn now to the application of the legal
standard which Professor Dupuy described yesterday, the legal standard of necessity, to the
facts of the case. I suppose the Court must by now feel somewhat knee-deep in facts!
Jusqu'aux genoux je comprends ou même jusqu'aux aisselles. To some degree, I'm afraid, this
is in the nature of things. Hungary has tand will go on trying to make the factual issues as
"user friendly" as we can – perhaps I should have said as "judge-friendly" – and to reduce the
technical issues to a minimum, but it is a necessary minimum. You may wish at some stage to
revisit the video to assist in gaining an overview of the factual issues. There are multiple
copies of the video in both the official laes. As the Agent said on Monday, lawyers like
to dwell in the halls of law, something whis easier to do perhaps on a preliminary objection
than when one gets to the merits of a case, butthe merits on this case concern a dispute in the
world, which it is an honour to bring before this World Court.
2. The particular question I have to addre ss is whether on the facts the principle of
necessity was available to Hungary to justify itstermination of works at Nagymaros and then
on the upstream sector at Dunakiliti and finallyGab_íkovo. The issue arises more especially
with respect to the termination of worksne as Professor Nagy has shown, the suspension of -11-
works did not as such conflict with the Treatyof 1977, as distinct from the detailed schedule
of work in the Joint Contractual Plan. But Hungary accepted that both suspension and
termination of works required an explanation, and the explanation it has consistently given
was that the Original Project would have require d it to run risks and actually to incur damage
amounting to major damage to vital interests. International law did not then and does not now
require it to do so .
A Note on Chronology
3. I should first say a wordabout the chronology of events 2. Hungary's initial suspension
of work at Nagymaros occurred on 13 May 1989. It had been preceded, in January of that
year, by a Government resolution expressing con cern about the environmental impacts of the
3
Project, a concern equally expressed in a So lvak Government resolution of 18 January 1989.
There were meetings at different levels on 3 March, 8 April, and 3 May at which concerns
were expressed . The suspension of works was immediately notified to Czechoslovakia and
forthwith discussed at Prime Ministerial level on 24 May, when the Czechoslovak Prime
Minister expressed willingness to examinethe issues at the level of substance 5. So there were
no surprises. Everyone knew there was a seriousissue. The question was what to do about it.
In fact, despite initial understanding on the partof Czechoslovakia that there were problems
6
which required examination , no agreement could be reached.
1
See HM, paras. 9.01-9.42; HC-M, paras. 5.23-5.38; HR, 3.03-3.40.
2 See HM, paras. 9.04-9.06.
3
HM, para. 3.67.
4
HM, para. 3.68-3.69; HC-M, paras. 2.31-2.34.
5 HM, para. 3.78.
6 Ibid .; also HR, Vol. 2, App. 6, para. 8. -12-
4. While the search for agreement continued, the suspension of works at Nagymaros was
twice extended. Eventually, on 10 January 1990,Hungary announced that it would terminate
the Austrian private contract for construction of Nagymaros and it negotiated compensation
7
with the Austrian company for the termination of its contract .
5. In July 1989, Hungary also suspended certain works at Dunakiliti which were
necessary if the Danube was to be diverted that year 8. But Hungary continued work at
Dunakiliti and at Gab_íkovo through 1990. It did not actually cease spending on the upstream
sector until late 1991. The formal handover of works at Gab_íkovo occurred at the end of
9
1991 .
6. It should be stressed that Hungary neve r suspended the Treaty as such, and the
Plenipotentiaries appointed under Article 3 of the Treaty continued to meet. Hungary
accepted that the Treaty provided the frameworkwithin which issues of compensation would
have to be negotiated, and that if satisfactorysolutions to the problems in the upper sector of
the Project could be addressed there was the po ssibility that work on that sector might be
resumed. Both Parties accepted that the 1977 Treaty remained in force. In its pleadings
Slovakia confuses suspension or termination of works under the plea of necessity and
suspension or termination of the Treaty itself. But as I have said, the parties to the Treaty,
Hungary and Czechoslovakia, made no such erro r. Although they disagreed on the substance
from a fairly early point, there was no complaint from Czechoslovakia that Hungary had not
followed the procedural requirements for suspensionand termination of treaties. In fact there
7 HM, para. 3.105.
8
HR, paras. 3.32-3.33.
9 HR, paras. 3.34-3.38. -13-
were very frequent meetings over the dispute atall levels, and each side was kept well aware
of the concerns of the other.
T HE CHANGING CONTEXT AND ITS MPACT ON THE PARTIES
7. I should also say a word about the contex t in which these events occurred. It is
commonplace to talk about a changing world, about times of transition. Such talk only too
often produces the cynical response, plus ça change, plus c'est la même chose. But the fact
must be faced that what happened in Central and Eastern Europe in the short period from
1989-1990 was a change of a fundamental charac etr, social, political and economic. No doubt
in such periods of change much is lost as wellas gained. But the fact of change is undeniable.
8. Now Hungary has never said that these changs ewere sufficient in and of themselves to
justify a departure from international obligations or the termination of treaties. But they were
relevant. They involved the dissolution of COMECON, the termination of the Warsaw Pact,
the first free elections in the two countries since 1947, the collapse of regional monetary
arrangements with major economic effects in terms of changes in demand and energy prices,
and so on. At the same time there was increas ed awareness of the long-term environmental
implications of major industrial projects, an acceptance of the need for public involvement
in decision-making on major projects. To describe these cumulative changes, with Slovakia,
10
as merely "internal political changes" is absurd.
9. Mr. Sands will discuss further the relevance of these changes in the context of the
termination of the 1977 Treaty. But there is a fter point, which is that in the midst of these
changes, to expect complete consistency by the Paties is unrealistic. On each side the Project
10 SM, para. 8.78. -14-
was handled at different levels, by the cons truction companies and their engineers on the
ground, by the Government Plenipotentiaries with fixed schedules of meetings, and by the
Governments themselves, Ministers and Prime Ministers occasionally drawn in as one or
another difficulty emerged. These different levles could and often did take different positions.
10. An example of inconsistency occurred in January 1990, when at the same time-as
Hungary announced that it could not build Nagym aros – the Slovak Government Minister for
Water Management announced that his Governme nt accepted that position, and was prepared
to see a modification to the 1977 Treaty and another agreement on environmental
guarantees . But such flexibility – which if ha d been accepted at the level of the
Czechoslovak Government and carried furtherin negotiations could very well have produced
a way out of the problem – such flexibility was not sustained, and was never accepted by the
Czechoslovak party. Czechoslovakia never accetp ed the abandonment of Nagymaros. Since
its independence, Slovakia has never done so. In tow asks the Court to order Hungary to build
at Nagymaros, as I have said. Such inconsistencies - the inconsistencies of the Slovak
Government Minister for Water Management in this case - do not necessarily entail
subjective bad faith, although they may show thatthe person concerned lacked influence over
events. In fact there is good evidence, as Hungary will show, that Variant C was under
preparation at this time.
The Positions of the Parties
11. The legal standard applicable to Hungary's conduct in suspending and terminating
works is that expressed in Article 33 of the Stte Responsibility Draft Articles, the standard of
necessity. Applying that standard, Hungary says that the threats to the environment and to
11 HM, Vol. 4, Ann. 32; for discussion see HM, para. 3.106. -15-
drinking water resources involved an "essential interest of the State". The threats were
"grave", and they were "imminent" in the se nse that if the Barrage System was built as
planned in 1989, they would in all probability follwo. No doubt they would take some time to
follow. But they wouldprobably occur unless major modi fications were introduced– and
none were on offer. In the downstream sector , the mere fact of the Barrage was probably
going to produce impacts on drinking water s upplies, whether or not peak power was
employed. In the upstream sector the impacts on biodiversity would probably occur, and the
threats to groundwater and to drinking water reserves was real. These could not be avoided
by available mitigation measures. Hungary soughtto negotiate alternative solutions within the
framework of the Treaty, and continued to do so until Variant C supervened. In the
exceptional circumstances permitted by international law and shown to be present here,
Hungary was justified in suspending and subsequently terminating works.
12. What does Slovakia say in response? Firs t of all, it seeks to avoid the argument
entirely by purely legal controversies, claiming foerxample that the defence of necessity is not
available in relation to a treaty obligation. Professor Dupuy has dealt with those arguments.
Secondly, it says that the Hungarian scientific agruments have no substance – "science fiction"
12
was the term used . The Court will have to judge for ite slf whether this careful and moderate
presentation of the issues by Professor Vida, Professor Carbiener, Professor Wheater and Dr
Kern, building upon the substantial presentations of the issues in the written pleadings,
warrants such abuse.
13. But Slovakia makes a number of further arguments, to which I now need to respond.
In fact there are six of these.
12 SM, para. 4.68. -16-
(1) Hungary acted in bad faith
14. First, it is said that Hungary acted in bad faith. "Fabrication", "falsification",
"grotesque", "misleading", "nonsense", "pervers e", "preposterous", "purported", "ridiculous",
"self-serving", "senseless", "sham", "shirk", "tendentious", "unsubstantiated" "utter
indifference", "wholly without sense", "world ofmake believe". These are the kinds of terms
applied by Slovakia . But let us ask why? Why is the suggestion of bad faith so persistently
made. The answer is no doubt that if Hungary was acting in good faith then something more
had to be done than simply to insist on the implementation of the Project and then wait and see
if things could be fixed. If Hungary's concer ns were justified, even potentially – if they
involved valid concerns as to vital interests – then something more was imperatively called
for. This 200km experiment in peak power generation would have to be if not abandoned
then massively moderated. And those directly involved would have none of that.
15. Consider a priori how unlikely successive Hungarian Governments were to be acting
in bad faith. Hungary spent 25,000million fori nts on the Project to the end of 1990 – in
current values perhaps half a billion dollars – sofar for virtually nil return. It also borrowed
nearly 3 billion Austrian schillings to speedup the work at Nagymaros and reduce the burden
on the State budget, and is still paying out that loan.And yet it is said that it acted in bad faith.
If they did not believe that there were problems with the project, the behaviour of successive
governments, of different political persuasion but each of them seeking improved relations
with Slovakia for hosts of other reasons, is simply incredible.
16. I should perhaps in this context mention the events of February to May 1989 which,
while not evidence of bad faith, seem to show acertain inconsistency of conduct. In February
13 See "Index of Words and Phrases...", HR, Vol. 2, App. 1. -17-
the Hungarian Government signed a protocol to the Mutual Assistance Agreement
accelerating the Nagymaros works by a year,as Professor Valki mentioned on Monday . In 14
May, Hungary suspended work at Nagymaros. Itwas the same Government – the Hungarian
Government did not change until after the elections of 25 March 1990 – the same transition
Government was involved throughout.
17. The reason for the apparent change of c ourse is rather simple. The agreement on
rescheduling was first conceived in 1986, followinga new contract with Austrian contractors
who had spare capacity after the cancellation of the Hainburg Dam in 1984. The Protocol was
agreed in principle on 12 January 1988, but it was not finally concluded at government-to-
government level until February 1989 because thee rwas no meeting scheduled of the relevant
body until that date5.
18. In the meantime much else was going on, new reports were being produced by
16
international and national bodies questioning the Project , the earlier political constraints on
disagreement with the Party line were disappearing. The technical consequences for the
internal timetable of the Project, not reflect ed in the 1977 Treaty itself, were treated as
irrelevant by all concerned in mid-1989.
(2) The Need for Joint Ascertainment of Facts; Mere belief by one Party that Grounds
existed for Suspension is not enough.
19. Secondly, Slovakia argues that the mere existence of a belief by one party, no matter
how reasonable, I believe in circumstances whic h would amount to a state of necessity is not
14
CR 97/2, pp. 31-32, para. 16.
15
See HM, para3 . .71 with references to the documentation. See also SC-M,
paras. 4.36-4.38.
16 HM, paras. 3.74-3.77; HR, paras. 1.87-1.89. -18-
enough. Instead there had to be joint agreed ascetrainment of facts before any action could be
taken by either party . Certainly, joint ascertainment of facts would be appropriate, and
Hungary was always willing to engage in a jo int fact-finding exercise looking at the whole
project under appropriate auspices.
20. But the problem was that the Danube was to be diverted within a few months, and
major work on Nagymaros Dam was on the point of beginning. The question was not whether
the Parties should engage in a joint investiga tion in the nature of an environment impact
assessment – that was precisely what Hungary sought. It was what should be done in the
meantime. Hungary sought a suspension of work,work which would have definitive effect as
of 1989, in terms of actually building a dam inthe river at Nagymaros, and actually diverting
the Danube at Dunakiliti. Yet Czechoslovakia consistently refused any such suspension,
claimed to have investigated fully all scientificand engineering options in the period from the
end of July to early September 1989 , five weeks including the whole of that period, and then
began actively planning Variant C.
21. There is however an important underlying point here, not as to whether a party could
refuse to engage in joint fact-finding under appropriate auspices, because Hungary never did
so refuse – but as to whether a reasonable be lief in future harm is a basis for a plea of
necessity. Slovakia appears to thinkthat harm or damage must be a fact before anything can
be done about it. But Russia's conduct in the Fur Seals case was held justified not because
particular seals had in fact been killed, butecause it had a reasonable apprehension that if the
culling continued the population would be endangered 19. There is nothing new in this
17
E.g. SC-M, para. 10.11. See HR, paras. 3.15-3.20.
18
HM, paras. 3.84-3.92.
19 MooreI, Int. Arb. 826, as described in HM, paras. 10.12-10.14. -19-
precautionary approach, and it is quite obvious that the doctrine of necessity must extend to
reasonable apprehension of future harm. Th e International Joint Commission has applied
20
exactly the same approach, for example, in the Garrison Diversion Case in 1977 . A
government must be entitled to act on the basis of a reasonable and well-founded belief.
22. Of course Czechoslovakia also argued, and Slovakia now argues, that Hungary's
concerns were not reasonable given the possibility of "remedial measures" being adopted, in
particular underwater weirs. My colleagues w ill examine these later this morning. It is
sufficient to make two points. First of all,underwater weirs had no application to Nagymaros.
The only remedial measure proposed for Nagymaros was the subsequent possibility of
eliminating peak power, and yet peak power was the primary justification for building
Nagymaros in the first place. A "remedial m easure" of this kind called into question the
viability of the entire project – already finelybalanced as Ms Gorove has shown. Secondly,
even in relation to the Szigetköz, underwater weirs are extremely problematic, especially in
terms of their long term effects and in the absence of substantial changes to the amount of
water being supplied. Simply to assume thatsuch weirs would solve the problem avoided the
central point Hungary was making – which was that the whole balance and economy of the
project needed a thorough review.
(3) Article 27 provided the only means for resolution of any dispute
23. Thirdly, Slovakia argues that Article 27 of the Treaty provided the framework within
which any issues arising in relation to the Project had to be resolved 21. As a lex specialis,
according to Slovakia, it prevented any steps being taken without the prior agreement of the
other party.
20
As described in HR, Vol. 2, App. pp. 184-7.
21 SM, para. 8.58; SC-M, para. 10.39. See in reply HC-M, paras. 5.31-5.38; HR, para. 3.13. -20-
24. Article 27, paragraph 1, provides that the settlement of disputes in matters relating to
the realization and operation of the System of Locks shall be a function of the government
delegates, otherwise known as plenipotentiaries.These were middle level officials appointed
under Article 3 of the Treaty and given the task of overseeing the construction and operation
process.
25. In practice the system of plenipotentiariesoperated in a flexible manner. Many issues
were dealt with by the plenipotentiaries. Ot hers were dealt with by ministers or prime
ministers. The plenipotentiaries were not an exclusive forum, if ministers wanted to take
issues up directly they did so, often in parallel with the plenipotentiaries. In fact the
notification of suspension was made directly between governments, and Czechoslovakia made
no objection to that procedure.
26. This puts Article 27, paragraph 2, into perspective. It provides that:
"If the Government delegates are unable toreach agreement on the matters in dispute,
they shall refer them to the Governments of the Contracting Parties for decision."
The ordinary meaning of this paragraph is clear. It is concerned with disputes initially dealt
with by the plenipotentiaries which they cannot reslove. It has no application to disputes dealt
with directly between the governments. Paragraph 2 says nothing about the case where no
decision can be reached by the governments because they disagree. It is not a third party
dispute settlement provision. Nor does it say anything about the substance of the dispute.
27. The Slovak argument on Article 27 implies that Czechoslovakia had the right of veto,
and that Hungary was required to continue work on the Project until it had obtained the
agreement of Czechoslovakia as to modification. This reads far too much into Article 27,
which was a standard provision found in many COMECON agreements. If Czechoslovakia -21-
had formally invoked Article 27 – which it did no– t proceedings would have followed exactly
the same course.
28. If Article 27 had provided for third party adjudication, the position would have been
different. The third party could have dealt withthe merits of the dispute, including Hungary's
invocation of necessity. But even a third pa rty dispute settlement clause would not have
precluded Hungary relying on the defence of n ecessity. It would simply have provided a
procedure for judging whether thatdefence was available. At all times Hungary expressed a
willingness to and did in fact participate in negotiations, at all levels; it proposed third party
settlement in various forms and it took the initiative in referring the matter to this Court.
29. It is worthwhile in this context, however,pausing to look at what I take to be the two
best offers said to have been made by Czechoslovk aia in an attempt to settle the dispute. What
did the extensive negotiations between the Parties, they were not under Article 27, but what
did they actually produce?
30. The first of these two "best offers" was contained in a Czechoslovak Note Verbaleof
22
30 October 1989 . This offered unspecified "t echnical, operational and ecological
guarantees" on condition that Hungary immediately prepare to divert the Danube upstream
and resume construction of Nagymaros. It s uggested a separate agreement "in which both
parties would oblige themselves to limitation orexclusion of peak power operation mode". It
ended with a clear threat of unilateral diversion upstream.
22 HM, Vol. 4, Ann. 28. -22-
31. The effect of the Czechoslovak offer was that Nagymaros should be built forthwith but
peak power operation would be limited or perh aps excluded. This missed the point that,
although peak power would have exacerbated th e impact of the Nagymaros barrage, the
essential danger for bank-filtered wells downstream arose from its very existence, as Professor
Wheater explained yesterday. Czechoslovakia proposed, under threat of unilateral action,
what a later Hungarian Prime Minister describedas an "experiment with nature" on a scale of
1 to 1. Hungary sought to examine in advance what the effects of that experiment would be
and how they might be mitigated. The Czechoslovak position was "let's build it and see".
32. The second "offer" to which I should referwas the alleged Slovak offer of a discharge
régime of 350 m-s to the main bed of the Danube with weekly floods of 1300 m-s . Three 23
comments need to be made about this "offer". First, it needed further refinement, although
that might have been possible in genuine ne gotiations aimed at reaching a solution to the
dispute. But it did at least have the virtue of recognizing the essential need for frequent
fluctuations in the discharge régime. Second, however, according to the Slovak record, that
offer was not accompanied by any recognition thatNagymaros could not be built, for its own
distinct reasons relating to peak power, envio rnmental concerns and especially drinking water
supplies. In other words it was contingent on the construction of the whole system. And
thirdly, that offer was never communicated to Hungray. It was never made. It may have been
formulated in the mind of someone on the Czechoslovak side seeking for a solution. If ever
officially adopted within Czechoslovakia, which is very doubtful, it remained a secret to
Hungary, the other party to the dispute 24.
23 HR, para. 1.141, citing SM, para 2.69 (weekly flushings); SC-M, para. 4.33 (periodic
flushings).
24 HR, para. 1.141. -23-
(4) The interests were not essential.
33. I turn to the fourth Slovakargument, which is that the Hungarian interests at stake were
25
not "essential" . The point can be dealt with rather briefly. First, the ILC specifically
instanced "the survival of the fauna or vegetaotin of certain areas ... to maintain the normal use
of those areas or, more generally, to ensure th e ecological balance of a region" as essential
26
interests for the purposes of Draft Article 33 . The "ecological balance of a region", actually
two regions, is a phrase which perfectly describesthe present case. But in addition the issues
of sustainability of drinking water supplies and reserves are obviously covered by the notion
of essential interests.
34. The same point is made in the following series of comments:
"the upstream reservoir and various hydraulicstructures related to Gab_íkovo have major
27
impacts on the hydrological regime and the ecosystem of the region...".
"The Danubian Lowland... is an inland delta formed in the past by river sediments
from the Danube. The entire area forms an alluvial aquifer... The aquifer is an
important water resource for municipal a nd agricultural water supply... Industrial
waste and municipal sewage... together with the diffuse sources of agricultural
fertilizers and agrochemicals are polluting the rivers, soil and ground water. These
physical and biochemical changes may... seriously deteriorate the ground water
quality... [There are] urgent water resource problems in the area... very significant
water resources problems in the area..."28
" The Danube River System... can be seen as a major habitat for rheophile fish species
and an important ecological corridor for [migrating] species...
The River Branch System is of outstanding importance b ecause of its sheer size, h29h
biodiversity of its aquatic communities... and large potential for restoration."
25 SC-M, paras. 10.45-10.50 (Nagymaros ), 10.51-10.55 (Dunakiliti); also SR,
paras. 5.17-5.21.
26 ILCReport , 32nd yr, p. 49, para. 14, cited in HM, para. 10.10.
27
PHARE Report (1995), Vol. 1, pp. 0-1.
28
PHARE Report (1995), Vol. 1, pp. 1-1, 1-3.
29 PHARE Report (1995), Vol. 3, pp. 9-5. -24-
The Court may perhaps not be familiar with these passages, which come from the 1995
PHARE Report produced by Slovakia a few weeks ago. It is true that this Report is concerned
exclusively with the Slovak side and exclusively with the upstream sector of the Project. It
says nothing about the Szigetköz and nothing a bout Nagymaros. But if the interests of
Slovakia are at stake in relation to the environmental sustainability of the inland delta below
Bratislava, so too were Hungary's anda fortioriHungary's essential interests in relation to the
actual drinking water supplies below Nagymaros. These were interests of a people, not
merely of a government – the interests of present and future generations. 35. There was also
an interest of both Parties in not wasting the investment each had made in the Project up to
1989. That was a financial interest. At then ed of 1989 both Parties had spent very substantial
amounts on the Project, although comparing the va rious amounts is difficult to do, due to the
massive and rapid changes in currency values that occurred at the time 30. But an order of
magnitude can be gleaned from the fact that at the end of 1990 – a year in which
Czechoslovakia spent far more than Hungary – the relative shares of expenditure were in the
ratio of 3 to 2. In other words, Czechoslovakia had spent about 50% more than Hungary on
the Project a year and a half after the first suspension of works. A year earlier, at the end of
1989, the amounts of money spent by the two Parties were roughly the same, although
fluctuating exchange rates makes the calculation difficult. But by that stage Hungary had
31
spent only about half of the total it was due to spend on the Project .
36. As to the financial interests, the first pointto note is that these amounts were capable of
adjustment and compensation. Loss of money as su ch is rarely an essential interest for the
purposes of the defence of necessity. The whole point of compensation is to make up for such
losses, the risk of which anyway is inherent in an investment. The ILC Draft Articles
30 Briefly outlined in HR, para. 1.93.
31 HR, paras. 1.94-1.98. -25-
32
explicitly envisage compensation in situations of necessity , and Hungary was from the start
prepared to negotiate such compensation within the framework of the Treaty . It must be
stressed that the impending damage to water resources and the environment was not the fault
of Hungary alone as distinct from the whol e totalitarian "gigomaniac" conception of the
Project, to quote President Havel 34. He seems to have made up the word "gigomaniac"
specifically for the Project. So it was not a question of reparations for wrongful conduct but
compensation for a failed investment. Czec hoslovakia had a legitimate interest in
compensation, and in any negotiations wouldno doubt have sought more than Hungary had
initially implied was on offer. But negotia tions over compensation never took place.
Czechoslovakia simply proceeded to constructVariant C, ignoring Hungarian concerns over
Nagymaros, insisting throughout on the whole Project, rejecting any proposals for an
amendment to the Treaty. It did not say that the compensation offered was inadequate;
instead it said there could be no going back. That amounted to a denial of the essential
interest, not the invocation of a distinct in terest which could, anyway, have been met by
financial and other means.
32
ILC Draft Articles on State Responsibility, Art. 35.
33
See e.g., HM, para. 3.103; HM, Vol. 4, Ann. 30.
34 HC-M, para. 16, citing HC-M, Vol. 3, Ann. 88. -26-
(5) The Project had reached a point of no return.
37. Fifthly, it is argued by Slovakia that the Project had reached a point of no return, that
so much planning and work had been done on it that termination and the return to the status
35
quo was unthinkable .
38. The first point to note is that this argument has no application to Nagymaros. It was
precisely the fact that substantive constructionat Nagymaros was about to start, following the
construction of the coffer dam, that induced Hungray to call for reconsideration of that part of
the Project. It is true that a substantia l amount of preparatory work had been done by
Hungary at Nagymaros, amounting to about 30 per cetnof the projected costs in that area. But
up to that point some of that work was usefulfor other purposes such as flood control, and it
certainly could not be said that the Project had reached the point of no return.
39. The position upstream was considerably more advanced, but a substantial amount of
work remained to be done. For example, nota single turbine had been installed at Gab_íkovo,
and neither of the shiplocks was ready. Th e Dunakiliti reservoir structure was essentially
complete, and a good deal of the work Hungary was scheduled to do on Czechoslovak
36
territory had been done . But other alternatives could have been considered, such as
operating Gab_íkovo in run of the river mode witha substantially reduced upstream reservoir
and a substantially increased discharge to the original riverbed. It is true that such a system
would not have produced peak power, but th at was excluded once the real effects of
constructing Nagymaros were appreciated, andthe construction at Nagymaros had certainly
not reached the point of no return. If Nagymaroshad not reached the point of no return, then
neither had the Original Project.
35
See HR, paras. 1.93-1.99.
36 HC-M, paras. 7.20-7.21. -27-
40. Some idea of what remained to be done upts ream can be obtained from figures given in
the Slovak pleadings, which suggest that between the end of 1989 and the end of 1992, the
amount spent by Czechoslovakia on the Proj ect and Variant C nearly doubled, from
37
13.8billion to 24.3billion Czech Crowns . Bearing in mind that major works have been
done on Variant C since the end of1992, these figures suggest either that the Original Project
was very incomplete at the end of 1989, or that Variant C involved massive amounts of new
work. By contrast Slovakia argues (1) that the Original Project was at such an advanced stage
of completion by then as to be unchangeable in its essentials, to have gone beyond the point of
no return, and (2) that Variant C is very nearlthe same Project as the Original Project. Given
Czechoslovakia's own cost figures, these twost atements cannot both be true. Either the
Original Project was still very incomplete , or Variant C involved major additional
expenditure, such as to constitute effectively anew Project – quite apart from the differences
between unilateral diversion and joint control.
41. I would also point out that other international dams have been stopped at a much more
advanced stage of completion, and appropriatearrangements made by way of compensation,
as the cases reviewed in Appendix 5 of the Hungarian Reply show.
42. To say that the Project had not reached a point of no return upstream is not to say that
the only option was to return Gab_íkovo to a cow pasture. There were other options, no doubt
less profitable than the original peak power system over 200km of river, but nonetheless
worth investigation. Czechoslovak Minist er Vavrousek produced a list of options 38, but
Slovakia has produced no evidence whatever that any of them were seriously studied other
37
HR, para. 7.21.
38 HM, paras. 3.123-3.124. -28-
than Variant C. But that was a matter of choice, not necessity, and it was a choice from the
making of which Hungary was excluded.
(6) There were procedural failures on the part of Hungary
43. Finally, Slovakia argues that there were procedural failures on the part of Hungary in
suspending and terminating works, and Slovakia cites in this regard the provisions of the
Vienna Convention relating to the suspension or termination of treaties. But there is no
counterpart to these provisions in the ILC Draft Articles on State Responsibility. The Slovak
argument confuses suspension or termination ofworks on a plea of necessity and suspension
or termination of a treaty as such – a distinction Hungary was careful to make, and for good
reason. Work suspended can be resumed; even contracts with private contractors can be
renewed. Hungary was careful to maintain te hsectors of the Project in good order throughout.
It maintains Dunakiliti in good order today, as yowill see. Procedurally, what is required by
general international law is that a party invokinecessity give notice that it has done so at the
time – which Hungary did – and that it be prepared to justify its action by giving reasons, and
if necessary by appropriate recourse, by recourseto appropriate forms of dispute settlement –
and Hungary was so ready. There is no substance in the procedural complaint Slovakia now
makes on this ground. ProfessorValki will de al on Thursday with the quite separate
procedural arguments relating to the termination of the Treaty.
CONCLUSION
44. Mr. President, Members of the Court. For these reasons the various objections made
by Slovakia to Hungary's invocation of necessity fail.In the very special circumstances of this
case, having regard to the vital character of the interests at stake and the valid grounds for
concern, Hungary was justified in its suspension and termination of works. -29-
* * *
45. Mr. President, Members of the Court, that concludes Part II of the Hungarian oral
presentation, which dealt with the 1977 Treaty and the Original Project. We now pass to a
consideration of Variant C, the unilatera l diversion of the Danube at Cunovo and the
subsequent unilateral operation of the Gab_íkovo power station and associated elements by
Czechoslovakia and subsequently by Slovakia.
46. Under the Special Agreement, the Court is asked, in substance, whether Variant C is
lawful under the 1977 Treaty, other applicable treaties and general international law. That
general question subsumes a number of particular questions which are clearly and squarely
presented to the Court and which, Hungary, s ubmits, are capable of clear and definitive
answers. Let me summarize these sub-questions as follows:
(1)Was Variant C even approximately similar to the Original Project? ProfessorNagy
will show that it was not.
(2)Was Variant C likely to cause significant daage to Hungary and to the environment,
and is it in fact doing so? In their third and, the Court may be relieved to hear,
final presentation, my scientific colleagus will show that the answer is, yes and
yes.
(3)When was Czechoslovakia committed to Variant C? Mr. Sands will show that it was,
at the latest, by early April 1991, befo re the crucial intergovernmental
negotiations of that year.
And – a question we will take tomorrow -
(4)Was Variant C unlawful under the 1977 Treaty, other applicable treaties and general
international law in the light of the an swers to the threeprevious questions? -30-
Professors Kiss and Dupuy, tomorrow, will show that the answer is, without
doubt, yes.
Thank you, Mr. President, Members of the Court.
The PRESIDENT: Thank you, Professor Crawford. I now call upon Professor Nagy.
The PRESIDENT: Thank you Professor Carwford. I now call upon Professor Nagy: -31-
Mr. NAGY: Thank you
11. VARIANTCANDTHEORIGINALPROJECT
1. Mr. President, Members of the Court. The Slovak case for the legality of
Variant C rests on a single proposition. This is that ariant C is an approximate application of
the Original Project. In other words, that it is for essential purposes the same thing.
2. My colleagues will show that there is no legal basis to this claim of approximate
application. I will show that there is no factual sis to it. And this is true whether one refers
to the physical differences betweenthe two sets of installations and their mode of operation, or
to the question who has control over the structures? Finally, I will discuss, whether the new
structures indeed are reversible and temporary or rather permanent. In this respect they are
similar. The Original Project was to be permanent. So is Variant C. Permanent but different.
3. In short, Mr. President, Members of the C ourt, Variant C is a new "activity" to use the
expression of the Espoo Convention or the Convn etion on Co-operation for the Protection and
39
Sustainable Use of the Danube River . It is not an approximate application of the Original
Project. It is not provisional at all.
39
HC-M, Vol. 3, Ann. 71. -32-
I. DENTIFYING THE ITEMS OF THE DISPUTE
4. Comparison of the Original Project and Va riant C is made difficult by the fact that
neither of them can be identified as a fixed set of installations operated in a well defined
manner, with impacts assessed and recorded. Both the Original Project and Variant C have
changed over time.
5. Hungary maintains that up to 1986 the term "Original Project" refers to the design of
1977-1978 as incorporated in the Joint Contractual Plan. After the modified investment
schedule – adopted in 1986 40 as a consequence of criticism, incorporating some remedial
measures – the term "Original Project" relates to the design and construction as agreed upon
by the parties in the Project documents, in cluding modifications adopted in the Joint
Operational Group and approved at least at Government Plenipotentiary level.
6. Slovakia neglects the genuine design of theOriginal Project, which did not entail joint
remedial measures and did not incorporate ag reed national measures either, and replaces it
with an imagined barrage system projected back into the past. Know ing that the Original
Project, if built and operated according to the Jo int Contractual Plan, would have had very
harmful impacts on both sides, Slovakia augments the design on paper with suggestions, ideas,
proposals which were never adopted by the Treaty og rans. They were never made part of the
Original Project – as Slovakia in parts of its pleadings concedes: "It may be that in certain
cases written amendments had not been made to the Joint Contractual Plan" 41.
7. Some of the remedial measures read backinto the Original Project by Slovakia – like
the supply system of the side branches – wereadopted as national measures outside the scope
40
HM, para. 3.56.
41 SR, para. 11.10, fn 10. -33-
of the 1977 Treaty. Others – th e underwater weirs in the main riverbed, or the weekly
increased discharges – were neither agreed upon nor materialized before this dispute arose.
8. Let me illustrate this with the manoe uvre of the Slovak Reply concerning the
underwater weirs. Slovakia accuses Hungary ofcommenting an Original Project "that is not
the Project as it evolved and would have beenimplemented in 1989 or 1992", then admits that
"the final design and the location of the weirs have never been decided on by the parties". 42
Nevertheless it states that "the basic c oncept was agreed under the Gab_íkovo-Nagymaros
Project. Reference to the weirs is even made in the 1977 Summary of the Joint Contractual
Plan being translated as 'bottom sills'".
9. The truth is that the Joint Contractua l Plan Summary contains no reference to
underwater weirs but makes a passing remark, acco rding to which "[i]n the event of need
44
bottom sills can be constructed in the Old Danube bed" that is the reference. Bottom sills
are not underwater weirs, they do not separate water bodies and do not produce "cascade"
effect as underwater weirs do 4. The reference to bottom sills and not to underwater weirs in
the summary was not a translation mistake. Hw oever, even bottom sills were not agreed upon,
and do not appear in the detailed plans.
10. Slovakia insists on retouching the photo of tehProject by adding later developments or
wishes as if they were part of reality. This exercise in rewriting history and mixing up facts
and plans was typical for the political environment of the Project throughout its history from
the fifties. The fact remains that none of the reedial measures so frequently mentioned in the
42 Ibid. , at p. 22.
43
Ibid.
44
HM, Vol. 3, Ann. 24, at p. 326.
45 HC-M, paras. 3.104 - 3.105. -34-
Slovak Pleadings were part of the Original Proejct of 1977. Slovakia admits this in seeking to
neutralize the Bechtel report’s critical remarks: the Slovak Reply warns that the Project
investigated by Bechtel in 1989 did not "incorporat e the latest series of modifications then
being considered" and goes on to state that Czechoslovakia "expressed its willingness in the
autumn of 1989 to agree to limit or exclude peak-flow operation". 46 Incte
modifications were never adopted, nor was peak operation ever limited or excluded.
11. So I suggest that the expression "Original Project" be reserved for those installations
and operational modes which were agreed upon by th e Parties in the Joint Contractual Plan or
elsewhere. Alternatives deliberated by one ofthe Parties – even if communicated to the other
Party – should not be seen as being incorporated into the Original Project.
12. As it is not easy to identify the installations and operational modes of the Original
Project, so is the case with Variant C as well.Even Slovakia itself seems to be confused about
its essence. The simple question, whether the hydropower station at Gab_íkovo is part of
Variant C or not cannot be answered on the basis of Slovak statements.
13. Slovakia oscillates between two extremes:
(1)According to one extreme Variant C is understood for all practical reasons identical
with the Gab_íkovo part of the Project or as a small, temporary technical
addition to the Original Project. This first position is reflected in the following
quote: "Czechoslovakia’s 'provisional solution' was in all respects the same as
47
the agreed Gab_íkovo section of the Project."
46
SR, para. 11.24.
47 SR, para. 9.73. See further SM, para. 7.16; SC-M, paras. 10.2 and 10.59. -35-
(2)The second extreme denies the practical ie dntity of Variant C withthe upper sector of
the Original Project. This new approach, excluding Gab_íkovo from Variant C
dominated when the Slovak Reply was s ubmitted. By then Variant C underwent
considerable textual reduction: now itwas "simply the provisional dyke and the
new dam at Cunovo". 48
14. Hungary’s position on Variant C is clear:Czechoslovakia has unilaterally appropriated
certain elements of a joint investment and incorporated them into a new project which
required significant further construction in the value comparable to (although somewhat less
than) the joint investment into the Gab_íkovo seco tr. The magnitude of this new endeavour is
underlined by the fact that five years since1992, the year of diversion have not been enough
for its completion.
15. The physical description of Variant C has to take into account that it is built in two
phases. Phase one was close to completion wh en Czechoslovakia unilaterally diverted the
Danube in October 1992. Phase two is still under construction and now is expected to be
accomplished this summer. None of the new elements I am about to list was designed,
developed and realized on the basis of consulttaion let alone joint action with Hungary. Quite
to the contrary, the affected downstream Stat e was deprived of all relevant information
49
concerning the works planned and under way, even after repeated requests.
48
SR, para. 14.06.
49 HM, paras. 7.61 and 8.20. -36-
II. DESCRIPTION OF ELEMENTS FORMING PART OF V ARIANT C
BUT NOT OF THE O RIGINAL PROJECT
16. The earlier Slovak position was that Variant C is simply the Original Project without
Nagymaros and peak operation. But in fact at least five years of uninterrupted construction
50
works and more than 8 billion Crowns (approximately 235 million USD) spent , have led to
significant new elements (though not yet to completion of Variant C in its entirety):
17. The diversion of the Danube in 1992 entaild seven major interferences not envisaged
by the 1977 Treaty. They constitute Phase one of Variant C (Illus. No. 11.3):
51
(1) permanent closure of the riverbed at rkm 1851.75 , 10.5 km-s upstream from
Dunakiliti, which would have been the site of diversion according to the Original
Project;
(2)80-90% reduction of the flow in the main Danube at a 10 km long section between
Cunovo and Dunakiliti. This leaves the Hungarian floodplain a wasteland,
without regular floods, but exposed to them in exceptional, unpredictable
circumstances, preventing its economic utilisation;
(3)a new dyke cutting across the flood plai n approximately 1.5 km north from the
Slovak-Hungarian border;
(4)a new 10.5 km long dyke 52 at the right side of the downstream section of the
53
reservoir which is now functioning as the prolongation of the headwater canal
50
HR, Vol.. 3, Ann. 77 at p. 373 giving 8 413 280htousand KCS as the estimated total cost
of water management and construction costs.
51
Gab_íkovo Part of the Hydroelectric Powe r Project Basic Characteristics by Dominik
Kocinger, Ministry of Soil Economy, in: Gab_íkovo Part of the Hydroelectric Power
Project, Environmental Impact review, Br atislava, 1995 at p.8. See also HM,
para. 3.186.
52 SM, para. 5.29 speaks of a 10.5 km long dyke, SM, annex 37 of a 11 km long one (at p.
356). -37-
(5)a new bypass weir which diverts a fraction of the flow back into the main Danube
54
bed ;
(6)a new inundation weir which diverts fl ood waters with a spillway joining the by-
passed main channel right at the border ;5
(7)the new intake into the Mosoni Danube 56;
18. The result of these large scale engineering works was a reservoir at Cunovo which is
30% smallerthan the Hrusov-Dunakiliti reservoir would have been 57 and is operated in
continuous mode, with regular – albeit limited – peaking.
19. After the diversion, construction continued and is still continuing with a view to build
structures requiring even more investment. These new fixed installations forming Phasetwo
of Variant C are the following (Illus. No 11.4):
(8)new dykes and fill-ups within the reduced reservoir, governing the water flow 58;
(9)a new175 meter long and 24 m wide navigation lock ; 59
(10)another new weir with three gates 60 ;
(11)a water slalom route for recreational purposes;61
53
SC-M, illustration No. CM-12.
54
SC-M, para. 8.52.
55 SC-M, para. 8.52. and illustration CM-15A.
56 SC-M, Illustration No. CM-12.
57
SC-M, para. 8.04.
58
Undocumented in the Slovak Pleadings but observed at the site.
59
Gab_íkovo Part of the Hydroelectric Powe r Project Basic Characteristics by Dominik
Kocinger, Ministry of Soil Economy, in: Gab_íkovo Part of the Hydroelectric Power
Project, Environmental Impact review, Bratislava, 1995 at p. 8. SM, para. 5.35.
60
Ibid.
61
Appearing on the video-film submitted by Slovakia. -38-
20. These items of Phase two were more or less completed in 1996. One more is under
construction, namely
(12)a new hydroelectric power plant consisting of five turbine units with capacity equal
to one third of what the Nagymaros Power plant would have had. 62
21. Mr. President this is an impressive list of “provisional” and “reversible” technical
solutions! But let me also highlight the elements of Variant C which are not reproducible on
maps but which form the hard core of Slovak actions.
III.O PERATION AND CONTROL RIGHTS
22. The essence of a large capital investment isthe control over it, including determination
of the operational mode, the enjoyment of be nefits, disposition of revenues, control over
impacts. All these matters would have been under joint control according to the Original
Project. None of them can be influenced let alone controlled by Hungary in connection with
Variant C.
23. The whole new activity involving the Gab_íkovo power station was designed and
realized by Czechoslovakia, and then, Slovakiad , isregarding Hungary’s repeated demands for
information, consultation and adherence to b ilateral and multilateral obligations. All the
crucial issues of the operation of Variant C adecided exclusively by Slovakia. The shape of
the reservoir, the daily water discharges aswell as handling floods and ice, the production and
consumption of electric energy, the management of international navigation are under sole
Slovak control. The Joint Contractual Plan and the 1977 Treaty incorporated detailed
62
Gab_íkovo Part of the Hydroelectric Powe r Project Basic Characteristics by Dominik
Kocinger, Ministry of Soil Economy, in: Gab_íkovo Part of the Hydroelectric Power
Project, Environmental Impact review, Bratislava, 1995 at p. 8. -39-
63
provisions on all these issues . This was based on Article 9 of the Treaty which
unequivocally expressed the essence of the community of interest. This Article provided:
"1. The Contracting Parties shall participate in the use and in the benefits of the
System of Locks in equal measure.
2. The output of the hydroelectric power plants shall be available to the
Contracting Parties in equal measure and they shall participate in kind in
equal measure, in the base-load and peak-load power generated and
conducted from the said plants."
24. The careful balance of physical and le gal control rights, set up by the 1977 Treaty
gave Slovakia control over energy production and Hungary control over the water discharge
régime. This control was to be exercised according to the set of agreements and decisions of
the joint executive bodies. Now it has been replaced by the profit-maximizing aspiration and
internal decision making of Slovakia acting alone.
25. The economic and environmental impacts ofVariant C were also different from those
likely to flow from the Original Project. In particular Hungary has not enjoyed any of the
benefits promised by the 1977 Treaty but enduredmost of the costs envisaged by the Original
64
Project and much more . Hungary lost 80-90 % of the water flow, and gained not a single
kwh of energy. Hungary is the victim of grave environmental damages caused by the
operation of the system. For years Hungary was exposed to an increased risk of flood.
26. According to Slovakia the operation of Var aint C enables a water supply system for the
side branches . This is true for Slovakia, but not for Hungary. The water intake structure at
the Dunakiliti dam is located so high – in expectation of the damming there – that it can not
serve as an outlet for water under Variant C. All the arguments of Slovakia relating to
Hungary’s unwillingness to emulate its good exampl e in revitalizing the side-branches are
63 HC-M, paras. 3.03-3.06.
64
HC-M, paras. 3.09 -3.10.
65 SC-M, paras. 7.84 and 8.26 read together. -40-
false. Variant C has disconnected the side br anches from the main riverbed. Mitigation
measures require substantial unforeseen investment on the part of Hungary.
IV. V ARIANT C IS NEITHER TEMPORARY NOR REVERSIBLE
27. Slovakia repeatedly speaks about the temporary and reversible character of Variant
66
C . If it admitted the final appropriation of the jointly designed and erected structures, and
that the 8 billion SK new investment was not meant for the short term, then the sole
explanation offered for the legality of Varian t C – approximate application as a temporary
solution – would vanish.
28. But what is the position in fact? Reversibility is intended to be demonstrated by
67
declaring that "No structures were erectedoutside the territory envisaged by the Treaty”, "all
weirs at the Cunovo complex may be opened" 68. Harm from the operation is disclaimed in
sweeping terms: "the results of over three years of operation of the Gab_íkovo section have
been to bring only benefit to Hungary, not damage".69
29. Obviously the location of the new structures is irrelevant. Opening the gates of the
weirs would result in having the Cunovo struct ures surrounded with water. Whereas in
connection with Phase one this would have m eant the corrosion of 20 inundation gates plus 3
bypass gates, with Phase two the situation is different. Now this simplistic approach would
mean that the ship lock, the three new gates of the Phase two weir and the hydropower station
would also submerge and the investment in facilities and the machinery would go down the
drain. Nevertheless even this action would not restore the situation.
66
Just a few examples: SM, paras. 5.65, 7.28, 7.44; SC-M, paras. 1.20, 6.17; SR,
paras. 9.25, 9.76, 14.06.
67
SR, para. 6.09.
68
SM, para. 5.65.
69 SR, para. 9.75. -41-
30. Hydrological conditions in the enlarged butdivided reservoir emerging after the return
2
to the Original Project would substantively differ from that designed as a single 60km unit.
Sedimentation and flow patterns in the changed reservoir are not calculated. One can certainly
state that at least as much work as done in connection with the PHARE project would once
again be needed to optimise the managementof the new large reservoir with two huge dykes
separating its water bodies. Slovakia has not o ffered any environmental impact assessment or
technical blueprint concerning the procedure of rte urn to the original functioning. This simple
"opening the gates" slogan is not only unrealits ic and without hydrological foundation but also
contradicts the findings of the trilateral Working Group of Independent Experts of 1992 70,
71
which Slovakia incorrectly refers to as a proof for reversibility.
31. The Expert Group found that opening the gates would not be enough to return the
water flow and handle floods but that the closu erof the Danube ought to be removed, or a new
72
bed opened . This was under Variant C Phase one when Slovakia could still allege that the
proof of reversibility was that a new riverbed“could have been [sic] constructed between the
73
closure and the inundation weir” .
32. That option is not available any longer. Te hplace of the new riverbed is now occupied
by the new spillway weir, ship lock and hydropowerplant. Slovakia does not offer any proof
that reversibility is still there, after the ctrction eliminated the potential new riverbed. The
action deprived the Expert Group Report from validity under present circumstances. So
Variant C has become irreversible according to normal engineering management standards.
70 HM, Vol.. 5. Part II, Ann. 14.
71
SM, paras. 5.65, 7.28.
72
HM, Vol. 5, Part II, Ann. 14, point 8.4.2. at pp. 468-69.
73 SM, para. 7.29. -42-
33. This is not to say that the Hungarian submission calling for the waters of the Danube
to return to their course and the river to be restored to the situation it was prior Variant C
cannot be satisfied. Although Slovakia accuses Hungary of wishing to return to thse tatus quo
74
ante the accusation is misplaced. Hungary suggest s a step forward instead of backward.
Not return to the Original Project is the goal, but a move forward in the direction of the
sustainable use of the affected Danube section andits environment. It is up to the Parties to
this dispute to find technical solutions for that.
34. Restoring the Danube could be a third pr oject, after the Original and Variant C. It
would not require more engineering talent than the first two, just a different approach to
nature, natural resources and their future value.
35. Mr. President, Members of the Court, this brings me to the last point in this speech:
What is the true intention of Slovakia? Does io tffer any evidence that it is preparing for giving
up Variant C either in order to return to the Original Project or to move forward to a mutually
acceptable solution?
36. The discrepancy between the deeds and words is as large as the Project itself. Would a
good faith litigant invest 5 thousand million SK into Phase two of Variant C if it really wanted
to see this Court oblige the Parties to r ealize the 1977 Treaty and have Dunakiliti operate
instead of Cunovo? Would the chief spokesmanof the construction company former head of
the Joint Operational Group, Engineer Oblozi nsky, declare that the provisional solution
becomes permanent after the completion of Phase two, if he did not intend to have it so? 75
Would a reasonable government build a hydropower st ation with one third of the capacity of
the planned Nagymaros plant, just to have itflooded over in the year of its commencement of
74
HR, 9.25, fn. 33.
75 SR, Vol. 3, Ann. 60. Engineer Oblozinsky in an interview witP hravda. -43-
operation? Would a party demand to reserve theorder of entry into operation of the different
sectors as compared to the 1977 Treaty if her intention was not to have Cunovo control the
system? Why else would Slovakia insist on having Nagymaros before transferring the
damming site to Dunakiliti, when the Treaty envisaged operating Gab_íkovo with Dunakiliti
76
for two or three years before Nagymaros joined the system? Mr. President, Members of the
Court. Unless you adjudge Variant C to be illegal and to be replaced with a water
management system agreeable to both States in front of you, Hungary will continue to be
faced with an unlawful “temporary” situation extending well into the third millennium. Thank
you, Mr. President, Members of the Court.
Mr.President, could you call upon Professo rCarbiener to introduce the Hungarian
scientific account of the impact of Variant C.
The PRESIDENT: Thank you so much. Professor Carbiener.
76 See details in HC-M, paras. 3.115-116. -44-
M. CARBIENER :
12. LES IMPACT DE LA VARIANTE C -45-
I. D ELAIS DE MANIFESTATION DES CHANGEMENTS
Monsieur le Président, Messieurs les J uges, j'ai à nouveau le grand honneur de vous
présenter très brièvement cette fois quelques considérations scientifiques. Il s'agit du
problème des délais de manifestation des changements. Permettez d'abord quelques
remarques introductives.
1. L’ “hydrosystème” fluviala été défini lundi comme une sorte de superorganisme dont
les composants physiques, physico-chimiques, biologiques, s’agencent en compartiments
interactifs et interdépendants. Toute modifi cation d’un des composants se répercute sur
l’ensemble. Mais le délai de manifestation de ces modifications dépend du degré d’inertie et
de l’éloignement du compartiment considéré par rapport au lieu de la modification.
2. Ainsi, les eaux souterraines sont connues pourleur très grande inertie, qui s’explique
par la mécanique des fluides. Par contre, lesdélais de réaction des systèmes biologiques sont
très variables et dépendent du degré d’organisation de la communauté (biocénose) concernée.
Les communautés aquatiques, par exemple, de structure relativement simple, réagissent en
général vite, en tout cas plus vite que les communautés terrestres très structurées, telles les
forestières.
3. La connaissance de ces principes est f ondamentale si l’on veut éviter des erreurs
graves d’interprétation concernant l’impact des grands travaux hydrauliques.
Examinons à titre d’exemple deux compartim ents importants des hydrosystèmes : d'une
pat les eaux souterraines et, d'autre part, les biocénoses. -46-
I. Les eaux souterraines
4. La vitesse de progression des eaux soute rraines des nappes alluviales des grands
fleuves est de l’ordre de un à dux mètres par jour dans les secteurs où leur réservoir est formé
d’alluvions grossières, comme c’est le cas du Rhin supérieur en Alsace-Bade ou du Danube
dans la région du Szigetköz/Zitny Ostrov.
5. Si l’on compare cette vitesse à celle du courant dans le thalweg des fleuves
correspondants, qui est de l’ordre de un à de ux mètres par seconde, soit 100 000 fois plus
élevé, on se rend compte de l’énorme di fférence des dynamiques respectives de la
transmission des modifications de qualité dans des milieux aquatiques opposés. Il en résulte
une très longue persistance des altérations et pollutions dans les eaux souterraines. Pour les
polluants biodégradables c’est paradoxalement la pureté bactériologique habituelle de ces
eaux qui freine les dégradations. Aussi, toutes les pollutions affectant les eaux souterraines,
molécules biodégradables, comprises, persistent très longtemps, des décennies en général.
6. Citons à titre d’exemple un cas concret : unaccident de la route qui s’est produit dans
la plaine du Rhin en Alsace en 1970. Il a répandu sur le sol le solvant toxique tétrachlorure de
carbone. Vingt ans après, la distribution d’eau potable a dû être suspendue dans une ville
(Erstein) située à dix kilomètres seulement en aval du lieu de l’accident. -47-
7. Ainsi, en général, après la mise enservice d’un barrage ou d’une retenue, de longues
années et le plus souvent des décennies s’écoulent jusqu’à ce que des symptômes généralisés
de dégradation des eaux souterraines devienne nt mesurables et reproductibles. Citons
l’exemple de la mise en service d’un barragehydro-électrique, toujours sur la plaine du Rhin,
en amont de Strasbourg en 1964. Il a eu pour conséquence, on en parlait lundi déjà, la
disparition de l’oxygène dissous de la nappe alluviale, mais elle n’a été détectée dans toute son
extension qu’à partir de la décennie 1980, notammentpar le constat de la totale disparition de
la faune aérobie interstitielle très célèbre, car actéristique des nappes fluviales, et dont la
découverte au siècle dernier, en alsace, dans les eaux souterraines du Rhin fit sensation sans le
77
milieu scientifique .
8. De même, le labour en vue de la 'unealic ulture intensive du maïs de vastes prairies
inondables de la rivière Ill en Alsace à partirde la décennie 1970 ne s’est répercuté qu’à partir
de la décennie 1990 par des altérations généra lisées, quoique encore discrètes, du secteur
correspondant de la nappe. Ces altérations concernent, entre autres, des teneurs inquiétantes
en pesticides, ou des triazines, dépassant parfois largement les normes européennes de
potabilité, ainsi que par la hausse continuelle desteneurs en nitrates dans ce secteur jusqu’ici
particulièrement préservé 78.
9. Un dernier exemple est donné par la lentemais inexorable progression de la pollution
de la nappe du Rhin d’Alsace par le chlorure deo sdium (par le sel). En 40 ans, une zone salée
allongée en tache d’huile s’est très progressivement étendue sur 50kilomètres de grand axe,
ceci suite au dépôt par les Mines de potasse d’A slace de terrils de sel à la hauteur de Mulhouse
77
Carbiener & Trémolières,The Rhine Rift Valley Groundwater, Research & Management,
vol. 5, 1990, p. 375-389 et Chemodynamics of Groundwaters, in Proc. Workshop
Chemodynamics of Groundwater, Mont Sainte-Odil,e1993, par. 13-13.9.
78 Takatert, Etude sur la contamination des eaux souterraines par l’atrazine, Rapport de
D.E.A. de Toxicologie de l’Environnement, Université Louis Pasteur, Strasbourg, 1993,
60 pages. -48-
en Haute-Alsace, si des mesures son faites un pe u latéralement, en des points inadéquats, rien
n’aurait pu être détecté .
10. Inversement et logiquement, les améliorato ins éventuelles sont également très lentes
à se manifester. Citons un exemple, toujours dans la plaine du Rhin si vous le permettez, la
pollution du fleuve et de sa nappe par le phosphore. En 1986, la Suisse introduisit une
disposition légale d’interdiction du phosphore dans les lessives ménagères (les produits de
lavage). Dès 1987, l'année d'après, on constata une chute de la moitié de la teneur en
phosphore de l’eau du Rhin. La végétation aquatique des eaux de surface y répondit par des
modifications spectaculaires dès cette année-là. Par contre, huit années plus tard, en 1994,
aucune amélioration n’a encore pu être consta tée dans la nappe riveraine toute proche du
fleuve canalisé, fortement polluée elle aussi par le phosphore infiltré depuis le lit du fleuve,
exactement selon les mêmes modalités que celles que nous avons montrées lundi pour le
mercure - c'est strictement pareil; ni l’analyse del’eau, ni celle de la végétation des bras qui
80
drainent cette nappe n'ont permis de détecter de changements.
79
Krause & Carbiener, Chloridkonzentration in den Gewässern in der Oberrheinebene
und ihre Randgebirge , 1975, Erdkunde, 29, p. 267-277.
80 Carbiener, Trémolières, Muller, «Végétation des eaux courantes et qualité des eaux»,
Acta botanica gallica , 1995, 142, p. 514-515. -49-
II. Les ecosystems
11. On a vu que les délais de réponse des écosystèmes à un changement de paramètre
déterminant dépendent de leur structure. Aussi, ces délais se distribuent-ils sur une échelle
considérable, allant de quelques jours à un, voire plusieurs siècles. Examinons quelques
exemples très liminairement. r
12. Premièrement: délai de réponse très court: échelle de l’ordre de quelques jours à
une année.
Le record de rapidité de réaction est celudes communautés planctoniques, structure très
fruste. Elles réagissent en quelques jours à des variations d’alimentation en fertilisants,
d’éclairement, de température, de vitesse de courant. La végétation supérieure des plantes
aquatiques se modifie quant à elle, dans un délai del’ordre de l’année, on vient de le voir, en
cas de changement de qualité de l’eau. Les ensembles d’invertébrés aquatiques
macroscopiques, macrobenthos comme on le dit pa rfois, manifestent en majeure partie la
même réactivité. Du côté des biocénoses terrestres, ont peut citer les communautés pionnières
des plantes annuelles des bancs d’alluvions, citées lundi aussi, dont la réactivité est
comparable, délai de l'année.
13. Deuxièmement: délai de réponse court : trois à cinq ans.
C’est le cas, par exemple, des ensembles de plantes vivaces pionnières des bancs
d’alluvions qui se localisent au-dessus de la frange des plantes annuelles. C’est le cas aussi
de la plupart des écosystèmes des zones hum ides, bas marais et prairies humides, qui
seraient soumis à des changements de niveau des eaux souterraines.
14. Troisièmement :délai de réponse lent : de l'ordre d’une à plusieurs décennies. -50-
Citons ici un exemple concernant les pos isons, déjà évoqué le premier jour. Dans un
bras du Rhin déconnecté du fleuve par la canalisation de 1967, la perte de débit, donc de
dynamique, a provoqué un dépôt important de sédime nts fins, et ces sédiments fins se sont
progressivement pollués cumulativement par le phosphore infiltré à partir du Rhin canalisé.
Il s’ensuivit une lente destruction de la flor e supérieure, remplacée par la prolifération
d’algues et la diminution progressive de la biomasse des poissons qui aboutit, à partir de
1993, à la quasi totale disparition de poissons; un délai de plus de 25 ans s'est donc écoulé
avant la destruction de la faune de poissons suite au changement.
15. Citons aussi un exemple concernant lavégétation. Dans ces mêmes délais, c'est
la disparition évoquée lundi aussi des forêts allviales à bois tendre (forêts de saules, forêts
de peupliers, riveraines. En quelques d écennies après suppression des dynamiques de
crues c'est le cas.
16. Quatrièmement et dernièrement: délais de réponse très lents, de l’ordre du
siècle.
C’est le cas des écosystèmes forestiers les plus complexes comme par exemple les
désormais si célèbres forêts alluviales à bois dur, si hautement originales. Elles se
dégradent par évolution lente vers des forê ts d'un type beaucoup plus banal, après
suppression des inondation et stabilisation du niveau des eaux. Mais le processus est
extrêmement lent, discret et s'échelonne sur siècles et plus, et permettait ainsi d'arriver à la
conclusion.
81 Carbiener, Dillman, Dister, Schnitzler, «V ariation de comportement et vicariances
écologiques d’espèces ligneuses en zone n i ondable», Colloque Comité National Français
de Géographie, Strasbourg, 1986, p. 237-259; Carb iener, Schnitzler, Walter, «Problèmes
de dynamique forestière et de définition desstations en milieu alluvial», Colloque IAVS
Nancy, 1985, Cramer, Berlin-Stuttgart, p. 655-686 -51-
17. La thèse qui stipule que «si des dégâ ts aux écosystèmes ne peuvent pas être
observés à court terme, il ne se produit pas de dommages à long terme», n’est
absolument pas fondée.
Permettez, Monsieur le Président, puis-je vous prier maintenant d'appeler
M. Klaus Kern à faire son exposé.
The PRESIDENT: Dr. Kern, I think it might be better if we take our break now so
that we do not interrupt your presentation and weshall return in about ten minutes. Thank
you so much.
The Court adjourned from 11.25 to 11.50 a.m.
The PRESIDENT: Please be seated.
KDE. N:
II. OBSERVED MPACTS ON FLOOD S ECURITY AND HABITAT D EGRADATION
18. Mr. President, Members of the Court, Iwill now address some of the many impacts
of VariantC which are already observable. Doing so we have to keep in mind that many
serious impacts may only show up in detail, as explained by Professor Carbiener.
19. This section is divided into two pas. I will begin by outlining the starting
degradation of habitat and the associated th reat to biodiversity. ProfessorWheater will
conclude the science presentation and fo cus on the impacts on water resources. A
discussion of the effect of remedial measures to mitigate damage will complete both the
biodiversity and water resources presentations. -52-
20. The starting point is the dramatically reduced residual flow left in the Danube and the
associated drop in water levels. This is an entirely predictable result of taking
80-90 per cent of the water out of the Danube and key to understanding the damage to biota
observed in the last four years. As described yesterday, the essential element of a
floodplain ecosystem is the flow rate of the river and the rise and fall of water levels
causing seasonal inundations, as well as groundwater fluctuations far beyond the dykes.
Since the diversion, Hungary has been entir ely dependent on Slovakia’s release of the
water into the Danube over this reach (Illus. No.14.2). If we look at the flows in the
Danube measured at the Hungarian station Ra jka below Cunovo since the diversion we see
82
four significant variations from the natural flow:
- First, only about 10-20percent of the na tural flow has been released into the
river;
- Second, the variation in the rate of flow is very small compared to the natural
variability;
- Third, only for the highest floods do larger flows reach the natural riverbed; and
- Finally, no floods have inundated the floodplain.
Since the 1995 Special Agreement the seasonal variation has increased marginally,
but is still far below the natural range.
21. How does this diminished flow régime imposed by Slovakia impact on the
environment? The water level in the mainchannel dropped by 3-4 m compared to previous
average values (Illus. No. 14.3). On average, fo lw velocities were cutin half, but in the 10
km-reach above the conjunction with the ta ilrace canal the decrease is even greater83. The
82 HR, Vol. 3, Ann. 1.
83 CEC Report on Temporary Water Management Régim(eDec. 1993), HM, Vol. 5 (2), Ann. 19. -53-
largest discharge released by Slovakia intothe old riverbed since October 1992 was below
the level at which side-branches received water. Most of the branch system in the upper
and middle Szigetköz was almost totally without replenishment, drying out or becoming
stagnant, as you saw on the video . Inundations—which are the principal characteristic
element of the floodplain — have been eliminatd e. Most of the flood flows shared with the
old riverbed did not even reach mean annual flow levels.
22. The short-term consequences of the artificilaflow régime have been felt particularly
by the aquatic habitats of the main Da nube bed between Cunovo and Sap, by the side-
branch system in the active floodplain, and by the branch systems in the flood-protected
area behind the dykes in the Szigetköz.
23. Fish are generally regarded as a good indicator for biological response after
disturbance. Before October1992, an extrao rdinarily rich fish population of 57species
was recorded by fish biologists in the main channel (Illus. No.14.4) 85. It included rare
submontane species, which require strong current in deep and cold water with a gravel
bed—habitat conditions which existed in the Szigetköz reach of the Danube before
October1992. Among these were several red- list species protected on a national and
international level like the Bern Convention (e.g., Gobio kessleri, Zingel streber,
Gymnocephalus schraetzer, Gymnocephalus balon)i. One of the perches spawning in this
reach was not known before the year 1974 when it was discovered as a new species by
Slovak fish specialists.
24. The aquatic fauna in the main channel, especially fish, were significantly affected
86
by Variant C in four ways:
84
HM, Vol. 2, Photos 13-28.
85 HM, Vol. 1, App. 2.
86 HC-M, Vol. 2, Chap. 4.5.2. -54-
- first, clean gravel sediments, suitable for spawning, were covered with fine silt,
especially in the backwater reaches. In the Bagoméri branch system, for
3
example, a deposition of over 400,000 m of silt was measured within the first
two years of operation (1992-1994) . 87
- second, there was deterioration inhabitat conditions for rheophile fish 88, in other
words slower current, less turbulence, higher temperature and nutrient level,
lower oxygen content, danger of eutrophication;
- third, the Cunovo dam and the reservoir as well as the Gab_íkovo power station
created an insurmountable barrier for mg irating fish and the Slovak authorities
did not provide a fish ladder; and
- fourth, and maybe most importantly, the main channel became isolated from its
side-branches, closing off temporary habitats for many species. 89
25. Sampling after diversion confirmed the ecological destruction of the affected
Danube reach: only one of the rare fish speci es could be found in this reach any more.
More importantly, 14rheophile fish species typical for this reach could no longer be
90 91
found . This change in species’ compositionis consistent with Slovak observations and
confirms a distinct degradation of an important aspect of biodiversity.
26. Slovak findings show that the resident Russian sturgeon(Acipenser gueldenstaedti)
has not been recorded in the Danube near Br atislava since the diversion. The wild carp
87Data taken from Rákóczi, L. & Sass, J. (1995)Changes of the Channel of the Hungarian UpperDanube and of the Side River Arms of the
Szigetköz upon putting the Dun.iver Barrage into Operatio,nVízügyi Közlemények, Vol. 77, pp. 46-70 (in Hungarian).
88See Glossary: Rheophile = adapted tooflwing rather than stagnant water bodies.
89HM, Vol. 1, App. 2.
90 HM, Vol. 1, App. 2.
91 Cerny, J. (1995), "Monitoring of Ichthyoncoenoseskart of the Danube Inland Deltabefore and aftert of theon Sta
Gab_íkovo Barage System", Faculty of iecnce, University of Brati,nvironmental Impact R, pp. 203-210. -55-
(Cyprinus carpio)used to be quite common in SouthernSlovakia, but is now restricted to a
few locations in the main channel. In 1993,only one fish out of more than 1,500 caught at
92
Gab_íkovo as part of a research programme was identified as a wild carp . The leading
Slovak ichthyologist concluded at an interna tional conference in 1994 that “The extinction
of the resident form of the Russion sturgeon andthe wild form of carpis expected within a
decade, because of the damming of the Danube at Gab_íkovo in 1992 and subsequent
93
interruption of migration routes and access to spawning grounds.”
27. The situation is not much better in side-branch habitats. These play an important
role for many species living in the main cha nnel. They also encompass a variety of
different waterbody types providing suitabl e living conditions for numerous other
species 94. Before the diversion, some of the side-arms were permanently connected to the
main channel, enabling fish to migrate back and forth at will. This contributed to a high
diversity of species. Other floodplain water bodieswere isolated for most of the year and
had stagnant water. Varying environmentalconditions in these floodplain habitats resulted
in a large diversity of site conditions. The resulting fish fauna comprised over 50 species in
95
the active floodplain and23 in the wetlands beyond the dykes . This included, for
example, the European mudminnow(Umbra krameri), a very rare fish strictly protected by
the Bern Convention . 96
28. After the diversion most of the side-branches dried out or were reduced to small
water bodies. Some important habitats experienced irreversible damage. An
92 Holcik, J. (1996) “Vanishing Freshwater Fish Species of Slovakia”, in Conservation of Endangered Freshwater Fish in Europe,A.
Kirchhofer & D. Hefti (Eds.), Birkhäuser Verlag, Basel, pp. 79-88.
93 Ibid ., p. 86.
94 HC-M, Vol. 2, Chaps. 4.3.2.2 and 4.5.2.
95 HM, Vol. 1, App. 2.
96 Ibid. -56-
extraordinarily large population of the mudminnow was completely destroyed after the
total desiccation of the Lipót side-branch.97
29. Living conditions for the flora and fauna of floodplain habitats are controlled by
fluctuating surface and groundwater levels and seasonal inundations. The dynamic flow
régime in the area was characterized by groundwae tr fluctuations of up to 4 m close to the
river, and still 1.5m at 4km distance as s een on the chart (Illus. No.12.5). After the
diversion, groundwater levels dropped by up to 3.5 m in the active floodplain, and by half a
98
metre in large parts of the folod-protected area of the Szigetköz . The dynamics of surface
water levels collapsed, and this is reflected in the groundwater régime. Close to the river,
fluctuations were reduced to about half a me tre, with a few short peaks of up to 1.6m.
Measurements of groundwater levels furthe r away from the river showed a similar
reduction in dynamics 99. There is in effect no longer a flood régime.
30. This has resulted in a transformation ofsite conditions for vegetation in large areas.
Along the Danube potential sites for flooded-forest and aquatic-marsh vegetation, blue
colour on the chart, no longer exist (Illus. N o.14.6). Potential areas of wet forests and
meadows, green colour on the chart, are reduced in size 100. Quite simply, the floodplain
ecosystem has lost its inherent character.
31. Professor Carbiener explained why th e decline of valuable wetland forest
communities may take many years, sometimes decades. But even against that backdrop,
early measurements of growth parameters ofindicator species show a distinct degradation
97 HM, Vol. 1, App. 2.
98 HC-M, Vol. 2, Chap. 3.4.3 and Vol. 5, Plate 3.13.
99 HM, Vol. 1, Appendix 3, Fig. 12 (updated); Joint Annua l Report of Environmental Monitoring in 1995 (according to the Special
Agreement of April 19, 1995).
100
HR, Vol. 2, plates 5.2 and 5.4 -57-
of the wetland vegetation. Samples of the tall plantain, for example, had considerably
smaller leaf areas and shoot heights in the impact area than those of undisturbed plots
(Illus. No.12.7). Significantly decreased water supply caused smaller leaf areas in
hardwood and softwood riparian forest sta nds. Compared to pre-dam conditions, the
reduction in leaf area amounted to nearly 30%. Common reed grew up to 25% shorter on
disturbed versus undisturbed control plots. The leaf size of the yellow waterlily (Nuphar
lutea)was up to 75% smaller in the impact area than elsewhere. And more generally, an
invasion of drought-tolerant weed communities,such as the allergenic ragweed has been
observed .01
32. These observations indicate the beginningof a significant degradation of floodplain
vegetation communities. It amounts to “s ignificant damage” to biodiversity by any
standard, including that of the 1992 Rio Convention. Recent monitoring results confirm
that some protected plant species have al ready disappeared entirely from the active
floodplain.
33. The same is true for the wetland fauna which is closely related to physical habitat
conditions and plant communities. Amphibians,for example, need specific site conditions
for reproduction during a particular time period ofthe year. These are no longer available.
Slovak monitoring of floodplain areas along the diversion confirms the tendency towards
desiccation, the retreat of typical floodplain species and an invasion of very common
102
widely-occurring “eurytopic species ...” . These are unambiguous indications of a
degradational process.
101 All data from HR, Vol. 2, Chap. 5.2 and HR, Vol. 3, Ann. 5.
102 SR, Vol. III, Chap. 5, Section 2 (“Changes of Fauna...”), Subsection 2.2.2 (“Monitoring Sites in the Area of the Diversipo.n1”0),3. -58-
34. From the observed changes in habitat conditions, from early measurements of
indicator species, as well as from experien ce with impacts of similar disturbances
elsewhere - as discussed by Professor Carbieneron Monday - it is clear that a large part of
the Szigetköz area will experience a long-termdegradation under the present water régime.
Biologists have cause to fear that many endangered flora and fauna species which are
protected in Hungary according to the Bern Convention, the IUCN Red Data Book or the
Corine List will cease to exist in this area . These consequences represent a serious loss
of biodiversity in an internationally recognized wetland. They are accompanied by
significant threats to water resources, as Professor Wheater will explain later.
Impacts of Remedial Measures
35. I will now briefly consider the impact of the remedial measures of which Slovakia
makes so much. The issue is this: can it be shown that irrigation systems in the floodplain
and weirs in the main channel can preserve the existence of rare and protected plant and
animal species endangered by Variant C? Finalconclusions are not possible at this stage,
but reasonable predictions can be based on observed habitat changes and experiences
elsewhere.
36. The need for additional water was recognized immediately after the diversion.
Irrigation of the floodplain witha few cubic metres per second available from the Slovak
reservoir and supplemental pumping, as seen on the video, were tried in the first years. This
produced virtually no effect. It was then d ecided to construct a diversion weir, or a
so-called underwater weir, at Dunakiliti in 1995 to raise the Danube water level to
floodplain levels (Illus. No.14.8). It was thoughtthis would channel much more water to
the now interconnected branch system. Of course, it was known that these emergency
103 HC-M, Vol. 4(2), Anns. 17 and 18. -59-
measures could not restore or substitute for the natural flow régime with its regular
seasonal floods. It was because the variation in flow is essential for the region that
Hungary insisted that the diversion weir was strictly temporary.
37. Slovakia proposed a series of weirs in the old riverbed to increase adjacent
groundwater levels 104. Since one such weir has now been constructed as an emergency
measure, its impacts can be studied. The substance and effect of such a weir by no means
resemble, I quote, a “natural ford or sandbank” as suggested by Slovakia
105
(Illus. No. 14.9) .
As you will see on your visit, the weir at rkm1843 consists of a rock-filled dam
across the riverbed about 4m high, measured from the bed level, raising water levels by
more than 3m. It has caused average flow velocities to drop to half a metre per second or
less over the entire upstream reach, contrasting with effects predicted by Slovakia 106.
38. The weirs also cause negative impacts onthe abandoned channel to sediments. The
Cunovo Reservoir retains all coarse particlestransported by the Danube, but a considerable
part of the suspended sediment load enters the power canal and the old riverbed below
Cunovo and settles in backwater reaches char acterized by low flow velocities (Illus.
No. 14.10). Above the weir, average grain sizes dropped from gravel with a mean diameter
of 31.4 millimetres to silt with a m ean diameter of only 0.04 millimetres 107. This occurred
within just one year after its construction andis quite similar to the process observed in the
backwater reach above the confluence. Thesefine deposits cover excellent spawning areas
104 SC-M, paras. 4.34, 7.44; SR, para. 12.45.
105 SC-M, para. 7.44.
106 SR, Vol. 2, p. 68 (7 + 9).
107 Hungarianmonitoring. -60-
for fish – an important deterioration of habitat conditions, and predicted in the Hungarian
Counter-Memorial . 108
39. The diversion weir has therefore added to the problems caused by Variant C. The
construction of more weirs would inevitably e liminate the last refuge of fish species
characteristic for this reach, as predicted by Hungary .09
40. The impoundment behind the weir was used to channel 80-100 m /s through the
Hungarian branch system during the summer. Instead of restoring the diversity of
waterbodies, the supply system created a small uniform river in the floodplain slowed by
cross dykes but without a flood regime. Surface water levels were raised to a permanent
flood level and constant flow was maintained.The flow velocities, water temperature and
chemical properties of the side-branch cha nnels more or less resemble the habitat
conditions of the abandoned main channel. The pre-existing diversity of waterbody types in
the floodplain has been considerably reduced atthe expense of the diversity of waterplants
and other specific groups of flora and fauna 110. Fish sampling in the branch system
indicates a shift to common rheophile species. Rare and protected plant species are being
lost in this area.
41. Our view of remedial measures may differ from Slovakia’s, which is delighted to
see the Slovak branch system “become comparable with the fish production in ponds of
111
second class” due to an increase of economically-preferred species .
42. It is now clear that the weirs and the si de-arm supply system will not sustain site-
specific aquatic flora and fauna. Will they help to save the wetland vegetation? Slovakia
108 HC-M, Vol. 2, Chapters 2.5, 4.6 and HR, Vol. 2, Chapter 7.
109 HC-M, Vol. 2, Chapter 4.6 and HR, Vol. 2, Chapter 7.5.
110 Joint Annual Report of the EnvironmenltaMonitoring in 1995 (according to the SpeacliAgreement signed on April 19, 1995), Ptar4.
111 SR, Vol. 2, p.71 (4). -61-
112
has acknowledged that the dynamics of groundwat er fluctuation and seasonal
inundations are essential elements for the vitality of a floodplain ecosystem. Water level
changes in wells upstream of the new weir at rkm 1843 show, however, that in the first
years groundwater fluctuations were reduced to about half of pre-da m values (Illus. No.
12.11). After weir construction a further significant reduction of the water level variation
was observed, bringing the range to less than one-third of the pre-Variant C size . The113
chart shows that impoundment above the weir produced permanent groundwater levels
corresponding to peak flood levels of pre-dam years. With such a régime, the wetland
vegetation, used to the normal dynamics of the natural river, cannot be preserved in the
long term. Neither will the specific floodplain fauna be able to survive.
43. Two more things need to be said about weir construction in the Danube.
—First, according to the Joint Contractual Plan, the abandoned Danube bed was to
114
discharge the 100-year flood without using the power canal . The
construction of weirs with a crest heightof 4-5 m would considerably restrict
the discharge capacity of the main channel. It could raise flood levels in the
floodplain above the designed level of the dyke system. In addition, the
construction of further weirs in the Danube channel could hamper the safe
discharging of floating ice which must be released from the reservoir in
winter115.
—The second point is this: the construction of weirs interferes with navigation. A
large shiplock was built at Dunak iliti as well as at Cunovo to allow
112 SR, para. 12.38.
113 Joint Annual Report of EnvironmentlaMonitoring in 199epecial Agreement of April 19, 1995).
114HC-M, Vol. 2, Chapter 2.4.4.
115
HC-M, Vol. 2, Chapter 2.4.4. -62-
commercial navigation in case of emergency, as you will see in your visit.
The construction of weirs of 4-5 m cres t height above the riverbed is not
compatible with navigation, even if the full discharge were provided.
44. None of these problems has been addressed by Slovakia. There appears to be no
study — not even at the prefeasibility level — which deals with these problems.
45. A final point relates to the impact of Vraiant C on the riverbed below the confluence
with the power canal. At that point a dramatic erosion of the riverbed has been observed
(Illus. No. 12.12). Scour holes of 2-3 m in depth occurred within two years of the
diversion — and the process continues and afe fcts the riverbed with erosion and deposition
for a further 4 km below the confluence. Continuous deepening of the riverbed endangers
adjacent wetlands by reducing water levels —a process which Slovakia claimed would be
116
reversed in the upper section by Variant C .
46. Why is this erosion and deposition occurring?One reason is the retention of almost
all bedload in the Cunovo reservoir. It is we ll known from other rivers that erosion of bed
sediments is likely below a dam 117. For Variant C the process is magnified by current peak
operation at Gab_íkovo (Illus. No. 12.13). The ca hrt shows the discharge measurements of
the river gauge at Vámosszabadi, just below the tailrace canal. Peak operation shows a
3
distinct daily pattern: average fluctuations are about 400 m /s. This corresponds to an 80
cm fluctuation in water level. Occasionally larger peaks in flow have been observed.
This kind of peaking is similar in magniu tde to that permitted by interstate agreement
within the impounded sections of the Upper Rhine and the Rhône but with essential
116 SM, paras. 5.10, 5.11.
117 HC-M, Vol. 4 (1), Ann. 7. -63-
differences: here it is being discharged to a free-flowing river section and without the
agreement of Hungary or even any notification.
47. What does this mean for the riverbed? Thee r is the full natural discharge deprived of
its bedload, and in addition, there are daily flow peaks of several hundred cubic metres per
second above the natural level. Higher dischrages, however, considerably reinforce erosion
of bed sediments, thus accelerating degradation of the bed (Illus. No. 14.14). Part of the
sediment is deposited just below this reach,nd complete rearrangement of riverbed cross-
sections has been observed near Nagybajcs. This causes new obstacles for navigation,
sharply contrasting with one alleged objec tive of the Project, namely to improve
118
navigation .
48. Mr. President, Members of the Court, destruction of valuable habitats, acceptance of
the loss of numerous red-list species, a trial-and-error approach in terms of mitigating
damage, and on top of this, peak operation disc harges into the free-flowing river section
shared by both states. These are the charaetristics of Slovakia’s Project, Variant C.
49. I would like to thank you for your attenin, Mr. President, and would ask you to call
on Professor Wheater, who will address the im pacts of Variant C on water resources.
Thank you.
The PRESIDENT: Thank you, Mr. Kern. Professor Wheater.
ProfessoHrEATER:
118 SM, para. 2.82. -64-
II. OBSERVED IMPACTS ON W ATER RESOURCES
50. Mr President, Members of the Court, in my earlier presentation I have focused on
anticipated impacts. As Slovakia has so frequently stated, notwithstanding its differences
from the Original Project, Variant C provides an opportunity to observe actual impacts. It
is to these that I now turn.
51. By way of preliminary observation I would remind you that there remains a serious
problem with the Slovak approach to m onitoring. As the Court has heard from
Professor Carbiener, many of the most important impacts are expected to be over the long-
term. We would not expect significant change s on water-related issues to be detectable
within the space of just a few years, and certainly not by conventional monitoring
programmes. Even in the face of this, however, Hungarian and Slovak data confirm that
Variant C has already had significant short-term impacts. The data also point to the first
signs of the predicted long-term changes.
52. In presenting the impacts of Variant C, I will first consider the situation after the
diversion of the Danube but before the consrction of the so-called "underwater weir" and
associated remedial measures, and then secondly, the impact of those remedial measures.
53. Time limitations preclude a comprehensivediscussion of impacts. I will focus on a
few of the key aspects only: groundwater levels, groundwater quality and aspects of
surface water quality.
54. Beginning with groundwater levels, Dr. Kernhas explained that the loss of water in
the main river bed has been accompanied by a decrease of surface water levels of several
metres. The Danube channel is no longer th e primary source of groundwater recharge.
Regional groundwater flows are now dominated by recharge from the Cunovo reservoir, -65-
and, to a lesser extent, the side-arm branch system. Groundwater flows discharge to the
main river bed, which now acts as a drain.
55. Summarizing the impact on groundwater le vels is not simple, due to the time-
varying response of the natural groundwater ré gime and changes to the water management
practices. The Hungarian Counter-Memorial presented a summary of the impact for
"average" Danube flow conditions and for "h gih flow" conditions based on selected periods
119
of comparable Danube flows, as shown here (Illus. No. 12.15) . It can be seen, for
example, that close to the Danube the decreas e of groundwater levels exceeds three metres
for high flow conditions. The corresponding areas for which decreases of a given range
occurred were also presented 120. Thus, for example, for the high flow conditions, over 20
square kilometers suffered decreases of in excess of 3 m, and an area of nearly 350 square
kilometers had significantly reduced groundwat er levels. The loss of variability in
groundwater levels, which is most marked in the active flood-plain and under high flow
conditions, has been described by Dr. Kern.
56. Associated with the reduction of groundw ater levels is the loss of the natural
sub-irrigation, both for the natural riparianand flood-plain vegetation, and for agriculture.
121
The HC-M described the areas affected, comparing the growing seasons of 1990 and
1993. Over 120km suffered a reduction in water availability; nearly40 km suffered a
total loss of sub-irrigation supply. A more recent estimate, comparing May 1992 with
May 1995 is that 146 km has reduced water availability . 122
119 HC-M, Vol. 5, Plate 3.13.
120
HC-M, Vol. 2, Table 3.6.
121 HC-M, Vol. 2, Table 3.7.
122 Hungarianmonitoring. -66-
57. These major changes to groundwater levels following the diversion are as predicted. I
turn now to groundwater quality.
58. Changes in recharge patterns have seri ous implications for groundwater quality.
Since the diversion the major recharge sour ces have become the Cunovo reservoir and the
side-arm branch system. I will consider first the reservoir, and then the side-arm system.
Both are very problematic.
59. As explained earlier, long-term changes areexpected in the quality of recharge from
the Cunovo reservoir. These depend on sedime nt accumulation in the reservoir, the
degradation of that sediment, and then the so lw processes of transport into and through the
groundwater aquifer. These processes will take many years to occur and to be observed, as
demonstrated from Altenwörth and the Rhine.
60. These matters obviously cause Slovakia gr eat difficulty. Its pleadings identify
Hungarian concerns for sediment degradation and its impact on water quality but claim that
123
"It is far from clear what Hungary means." In the same pleadings it is said
categorically by Slovakia that "There is no basis for the expectation of anaerobic water
recharge (i) from the reservoir,or (ii) from the side-arms."124 But later in the same volume
the PHARE interim report clearly and concis ely explains the relevant processes and
125
confirms Hungarian concerns . It says:
"An increased sedimentation in certain ar eas within the reservoir will affect the
amount of infiltrating water. In additi on, an increased sedimentation of fine
particles will also increase the load of organic matter to the reservoir bottom. This
organic matter will degrade under consumption of oxygen which may change the
conditions in the reservoir sediment from being oxic to being anoxic."
123 SR, Vol. 1, para. 12.12, p. 285.
124 SR, Vol. II, p. 43.
125 SR, Vol. II, Part II, p. 166 -67-
61. This is the correct scientific interpretation.It directly contradicts the main statement
of the Slovak case. It appears that the presenters of the Slovak case do not understand the
science.
62. Concerning observation of these processes,Hungary is not able to study the effects
in and adjacent to the reservoir on the Slovak side. Slovakia claims that conventional
monitoring programmes are sufficient to detectthe onset of long-term change, and seeks to
reassure the Court. Concerning evidence of long-term change in groundwater quality,
based on "literally hundreds of different sites", "Slovakia’s position is that from the most
closely researched scientific point of view,there are no significant changes - small or large
- in the monitoring results." 126 And yet if you turn to th e second volume of the Slovak
Reply you will find described a detailed fieldinvestigation of groundwater quality changes
127
adjacent to the reservoir . Upon reading this text we find that the data show "slow
denitrification...and reductive dissolution of Mn-oxides". In other words, confirmed
evidence of the creation of anaerobic conditi ons and the release of manganese. This
describes the first stages of precisely the porcesses of pollution which are of grave concern
to Hungary, and which Slovakia denies 128.
63. The reservoir data are consistent with the early stages of groundwater quality
deterioration, as predicted. Similar concernsarise with the side-branch system. Detailed
investigations have been carried out in Hungary. They confirm Hungary’s original - and
current - concerns.
64. In our pleadings we presented results on groundwater quality from 62 wells in
11well groups along the banks of side-arms and canals (Illus.No. 12.16). By way of
126 SR, Vol. I, para. 11.20, p. 272.
127 SR, Vol. II, Part II, pp. 141-142.
128 SR, Vol. II, p. 43. -68-
example this diagram 129 shows that for most of the sites, chemically reducing conditions
occur. For all sites, maximum levels of ammonium exceed EC guide levels for drinking
water. At 9 of the 11 sites, mean le vels of iron exceed EC maximum allowable
concentrations, and mean levels of ammoniumexceed guide levels. Arsenic levels exceed
WHO limits at several wells. In the vicinity of the side-arm channels the changing patterns
of groundwater recharge have replaced inf iltration of high quality Danube water with
recharge of seriously degraded water quality. This poses a serious threat to drinking water.
Slovakia argues that such problems will disa ppear with increased surface water flows
130
associated with remedial measures . Hungarian evidence shows,however, that even with
131
high flows in clean gravel bed channels, reducing conditions persist .
65. The degradation of groundwater quality is further illustrated by measurements of
groundwater quality alongside the main Danube channel. Data presented in the H C-M
showed the high quality of aerobic groundwaterrecharged by the Danube, as observed in
132 133
1991 . As indicated in the HR these results have been updated . They show that the
Danube channel is now a drain, and the groundwater sampled in the former river bed,
134
recharged from the side-branch system, is of highly degraded quality . A reduction of
dissolved oxygen has been accompanied by increased manganese and ammonium, exactly
as anticipated.
66. Concluding this presentation on observed im pacts before remedial measures, I now
consider surface water quality. As noted earlier,the expected direct effects of the Cunovo
129
Figures 3.14, 3.15, 3.16, HC-M, Vol. 2.
130 SR, Vol. I, para. 12.24, p. 294.
131 HR, Vol. 2, p. 83.
132 HR, Vol. 2, pp. 94, 95 and Table 3.8.
133 HR, Vol. 2, pp. 83-85.
134
Hungarianmonitoring. -69-
reservoir on surface water quality are that the impoundment will lead to sediment
deposition and increased light penetration. With current nutrient levels in the Danube,
changes in algal composition and increases in ag lal growth can be expected. However, the
biological responses depend on a combination of climatic and flow conditions, and are
highly unpredictable. Increases in algal popul ations lead to increased variability of
dissolved oxygen, and where low levels occur, the ecological systems can be damaged.
135
The vulnerability of the reservoir is clearly indicated by Slovakia : "The water in the
reservoir ... may be characterized ... as eutrophic water."
67. Information from the reservoir has been extremely limited. The Court may wish to
note that Chlorophyll-a measurements, which aerindicators of eutrophication, from the five
monitoring sites within the reservoir were not included in the 1995 Slovak monitoring
report. Slovak data from within the rese rvoir for summer conditions in 1994 show a
doubling of chlorophyll-a concentrations between the reservoir inflow and the intake to the
headrace canal 136, i.e. a greater effect than predicted by Hungarian modelling . Thus, as
expected, there is evidence of enhanced eutrophication activity already underway.
68. Information from the reservoir has beenextremely limited. The Court may wish to
note that Chlorophyll-a measurements, which aerindicators of eutrophication, from the five
monitoring sites within the reservoir were not included in the 1995 Slovak monitoring
report. Slovak data from within the re servoir for summer conditions in 1994 show a
doubling of chlorophyll-a concentrations between the reservoir inflow and the intake to the
135 SR, Vol. III, p. 29.
136 SR, Vol. III, Fig. 2.2.
137 HC-M, Vol. 2, Section 3.3.2.3. -70-
138 139
headrace canal , i.e., a greater effect than predicted by Hungarian modelling . Thus, as
expected, there is evidence of enhanced eutrophication activity already underway.
69. Effects of Variant C also included major changes to the water supply to the Mosoni
Danube. This resulted in low dissolved oxyge n levels and fish mortalities in August
1993 140 .
70. A further issue related to surface water qua lity is the quality of reservoir sediments.
141
Hungarian concerns were documented in the Hungarian Counter-Memorial and
elsewhere. Once again there are clear contradictions in Slovak evidence, even within its
Reply. On the one hand it is said that a 1993 study shows that "the sediments are not
142
significantly polluted and . . . they aernot polluted by organic contaminants" . But then a
143
1995 study is said to show that "relatively high contents of PAH’s are found ... High
contents are also found for Nikel" 144 ... Calculations ... suggest that concentrations
145
above Slovak drinking water limits may happen for Ni" — in other words carcinogenic
organic pollutants and mobile heavymetals have been found. Further contradictions
abound 146. What are we to make of these rea ssurances from the monitoring programme,
which are in direct contradiction to Slovakia’s own data?
138 SR, Vol. III, Fig. 2.2.
139 HC-M, Vol. 2, Section 3.3.2.3.
140 H C-M, Vol. 2, pp. 75-76.
141 HC-M, Vol. 2, p. 65.
142 SR, Vol. III, p. 35.
143 Polyaromahydrocarbons.
144 Nickel.
145 SR, Vol. II, Part II, p. 141.
146 SR, Vol. I, para. 12.13, p. 285. -71-
71. By way of summary, the impacts of Variant C show severe short-term effects
already, together with the early stages of long-term change already observed by Slovakia
and Hungary. Slovakia’s accusation of Hungary’sfailure to produce evidence of harmful
147
effects is denied by its own scientific data as made available to the Court.
147
SM, Vol. I, paras. 1.13 et seq., p. 5. -72-
Impacts of remedial measures
72. In this second part of my speech, I will consider the observed impacts of remedial
measures on water resources. Slovakia argues repeatedly that remedial measures are all
that is needed to mitigate adverse effects. It is also claimed that Slovak measures have
"dramatically improved the side arms on the Slovak side" 148. But it produces no detailed
evidence to support that view. And of course it ignores the Hungarian side.
73. In our Reply we illustrated the anticip ated impacts of remedial measures on
149
groundwater using groundwater simulation methods. This diagram (Illus. No. 12.18)
shows the limited increase expected for Variant C. The effect of a si de-arm recharge of
3 3 3
100 m /s, with 300 m /s in the main channel was compared with allowing the 100 m /s
simply to be discharged in the main channel. It can be seen that the anticipated effects of
the recharge system were a limited alleviation of groundwater level decreases in a limited
area. In other words, the rate of decrease is marginally reduced.
74. Observations following the construction of the diversion weir and increased side-arm
150
discharges are now available. They confirm our predictions. The diagram
(Illus.No.XX) shows a comparison of the groundwater levels in July/August 1995, with
3
96 m /s supplied to the side-arm system, and June/August 1992, prior to the Danube
diversion. Despite the recharge system, groundwater levels during this period of average
flows continue to show declines in excess of 3 metres in the active floodplain.
148 SR, Vol. I, para. 1.20, p. 8.
149 HR, Vol. 2, Plate 7.4.
150 Hungarianmonitoring. -73-
75. One of the reasons for this is the comp lexity of the natural system. Simplistic
assumptions of the surface water-groundwat er interactions were based on limited
knowledge. They can now be seen to be inadequate. The current side-arm system has a
complex morphology 151. The subsurface properties are highly variable, 152 with complex
stratification and occurrence of interleaved le nses of different material. Surface water
levels in the side-arm channels are not in simple connection with the underlying
groundwater, and (as in the Rhine) groundwater levels are not simply raised to surface
water levels. Results of a 1994 field monito ring programme showed that surface water
153
levels can be 1.2 m higher than the underlying groundwater .
76. It has been argued by Slovakia 154 and the EC Working Group that simply
maintaining adequate flows will provide flushing of channel bed sediments and guarantee
effective operation of a recharge system. This is certainly not supported by the detailed
measurements in the Szigetkoz. Some of th e largest differences between surface water and
groundwater levels were observed in a newly-excavated side-arm channel with high flow
velocities and a gravel bed, i.e., precisely the conditions held to be most favourable for
recharge 155.
77. The Court may be interested to note that significant decreases in groundwater level
also occurred in the active flood-plain on the Slovak side, as the Slovak pleadings
151
HR, Vol. 2,Plate 7.1
152 As illustrated in Figure 7.2, HR, Vol. 2.
153 HR, Vol. 2, Section 7.3.2.
154 SM, para. 7.42.
155 HM, Vol. 2, p. 83. -74-
156
confirm . Although precise locations are not givenby Slovakia, three out of the four soil
moisture monitoring locations in the area s hown reveal a systematic decline in soil
moisture, even after remedial measures 157. This is consistent with what Hungary
predicted. The only well response within th e floodplain shown in detail in the Slovak
pleadings is untypical in showing a rise in groundwater in this area 158. But even that
proves an almost total loss of the natural variability of groundwater levels following the
remedial measures.
78. Effects on groundwater quality of recharge from the side-arm channel system have
already been discussed, and evidence presentedof the poor quality of such recharge. To
create the diversion of flows to the rechargesystem, the underwater weir was constructed.
As for the Cunovo reservoir, this stru cture provides an impoundment behind which
sedimentation will occur and has already doneo s, as explained by Dr. Kern. This provides
a small scale illustration of the effects expectedfrom the reservoir and a direct example of
the situation for any further weirs in the main Danube channel. Recent data from the
Hungarian Geological Survey (Illus. No. 12.20)show that groundwater at this location is
progressively losing its oxygen content (seen he re), that nitrate levels are decreasing
(consistent with a change to chemically reducing conditions). Pollutants such as
manganese are increasing. In other words, te hexpected groundwater quality degradation is
beginning to occur.
156 SR, Vol. III, Chapter 1, Fig 11.
157 SR, Vol. III, Chapter 3, Figs. 1.7-1.10.
158 SR, Vol. III, Chapter 1, Fig. 9 well 1977. -75-
79. Mr. President, Members of the Court, perm it me to conclude this presentation on the
impacts of Variant C with some summary remarks.
—First, it is clear that the short-term impacts of Variant C have been severely
damaging. You have heard of the loss of flow in the main Danube
channel, including flood inundation, the reduction of groundwater
levels and their variability, the impact on aquatic and terrestrial
habitats.
—Second, you have heard that long-termchanges of many kinds are expected,
and that the first signs of these ar e now evident. The loss of fish
species, for example, are a precursorto the long-term degradation of
biodiversity. The beginnings of wide-spread groundwater quality
degradation are apparent. Severe changes to river bed sediments
have already occurred.
- Finally, Slovakia repeatedly argues th at remedial measures can resolve
these effects. Yet we have seen that increased flows to the side-arm
channels degrade the habitat diversity and fail to restore groundwater
levels in the active floodplain. And Hungarian and Slovak data
clearly illustrate the loss of the essential groundwater variability.
80. Slovakia proposed to raise groundwater levelswith the construction of a series of
weirs in the Danube channel . Yet what are the consequencesof such weirs? The former
free-flowing river becomes a series of ponded sections, vulnerable to eutrophication and
159
SC-M, para. 4.34, 7.44; SR, para. 12.45. -76-
representing a degraded habitat. You have heard that sediment deposition has already
taken place, and effects of its degradation are already apparent in deterioration of
groundwater quality. Even now, implications of the reduced channel flood capacity remain
unexplored.
81. Mr. President, we see that the actual, observed impacts of Variant C are fully
consistent with the concerns Hungary expressed about the Original Project. They show
actual damage to biodiversity and to water reo surces on the Hungarian side. They show the
first signs of a severe and potentially irreversible transformation of an internationally
recognized wetland. And they show that remedi al measures simply aggravate many of the
adverse effects they are supposed to mitigate.
Mr. President, I hope the Court will understand taht our science pleadings were of necessity
prepared prior to Slovakia’s submission of the PHARE final report and that there has so far
been no time to examine it in any detail. Ca n I for the moment simply make the following
observations:
1. the existence of the PHARE report, finalized in December 1995, is ample
testimony to the fact that integratedassessment of environmental impacts
had not been previously undertaken for the Original Project. The aim of
this Project was to provide the tools to do so, but in its case for Variant C.
2. The report itself clearly supports the Hungarian perception that the
underlying science issues are complex, poorly understood in key respects,
and that assessment is subject to a high level of uncertainty in most
important areas. -77-
3. It reinforces the concerns of Hungary for many aspects of potential
environmental impact previously de nied by Slovakia. For example,
concerning the loss of variability of surface and groundwater levels,
deterioration of groundwater quality,nd resulting degradation of habitats
and ecosystems.
4. It is evident from the report that remedial measures, as proposed by
Slovakia, have important adverse eff ects, including degradation of fish
populations, risks to surface water quality, and loss of the dynamic
“pulse” that Professor Carbiener described on Monday.
82. Mr. President, Members of the Cour t, may I now ask you to call upon Philippe
Sands to address the timing of Variant C and related matters. Thank you for your attention.
The PRESIDENT: Thank you, Professor Wheater. Mr. Sands.
SAMNr.DS:
13. THE TIMING AND PREPARATION OF VARIANT C
1. Mr President, Members of the Court, it is a great privilege for me to appear again
before you.
2. You have heard Professor Nagy on the differences between Variant C and the
original project and you have heard my scientiifc colleagues on the impacts of Variant C. It
falls to me to address the timing and the prertion of Variant C. The principal issue that I
will deal with is the timing ofits planning, its financing and construction, on which subject -78-
the Court has been presented with sharply differing views. But I will also draw your
attention to internal governmental Czechoslovak and Slovak documents, which show legal
and economic analyses during the preparation and early construction phase of VariantC.
These illustrate the nature of the States' approach to the norms of pacta sunt servanda,to
the utilization of shared natural resources, and to the protection of the environment.
3. Slovakia claims that the process of planning and approval of Variant C only began
in July 1991, and that the entire structure was conceived and put into effect in just 15
months. Hungary considers that planning and app orval began in fact a great deal earlier, not
later than 1990, and that more than three years passed from conception to delivery. In that
regard, as Professor Valki noted, Variant C a ppears to be consistent with Czechoslovak
aspirations for unilateral control and exploitation of these waters going back as far as the
1920s and the immediate post-war period 160. We know, that as early as 1945,
Czechoslovakia argued for a bridgehead on theright bank to be extended and that in 1952,
it announced an intention to achieve unilatera l control over hydroelectric potential with the
construction of barrages from Bratislava to Chl’aba, a proposal which we now know
161
incorporated all the essential elements of Variant C . Express threats of unilateral
diversion were made in 1955, and again in 1958 . And even after the conclusion of the
1977 Treaty Czechoslovakia threatened unilatera l action in its negotiations concerning the
implementation of the Treaty. Slovakia doesnot deny that this happened in 1982, although
the relevant passage in its Reply is rather defensive. It says that it is “conceivable that the
160 HR, para. 2.05.
161
HR, para. 2.12.
162 HR, paras. 2.13 and 2.14. -79-
possibility of unilateral completion of the Project was mentioned” during the October and
163
November 1982 negotiations . A conceivable possibility, says Slovakia. Yet it is in a
position to know!
4. The Court has been asked to determine “whether [Czechoslovakia] was entitled to
proceed, in November 1991, to the 'provisiona l solution' and to put in operation from
164
October 1992 this system” ? As to the first of these two dates, November1991, it now
appears that 25 July 1991 is the more relevantsince that is the date on which negotiations
between the two States were unsuccessfully concluded and before which Slovakia says
nothing happened in relation to Variant C. The second date, diversion in October1992, is
not disputed. So I will address the period prior to July 1991, on which there is real
disagreement. My colleagues will in due course address the question of whether
proceeding with Variant C was permissible, whether in July or November 1991, or at any
time.
5. In asking the Court to consider what are essentially factual matters we are
nonetheless asking you to exercise your judicial function and make a determination with
the appropriate legal consequences. The timingof Variant C is important to this case for a
number of reasons, which is reflected in the energy with which Slovakia defends her
position that nothing– and I stress nothing – happened before July 1991. There are three
reasons Slovakia takes this position. First, as you will recall, in July 1991 an important
163 SC-M, para. 4.15.
164 Special Agreement for Submission to the I.C J.. of Differences between the Republic of
Hungary and the Slovak Republic Concerning the Gab_íkovo-Nagymaros Project, 7
April 1993, Art. 2(1)(b), HM, Vol. 3, Ann. 32. -80-
round of negotiations was concluded without success. If the Court was to find that the
decision to implement Variant C had been taken before 25 July 1991, when those
negotiations concluded, this would clearly imply that Czechoslovakia had not been
negotiating in good faith with HungaryS . econd, deciding that there had been an earlier start
would also undermine Slovakia’s argument thatHungary’s decision to terminate the 1977
Treaty had in fact occurred “long before even the planningof Variant C“ 165. Third, the
July 1991 date is central to Slovakia’s argument that Hungary’s acts were not justified on
scientific or on legal grounds, and they were smo ehow unrelated to the decision to continue
with Variant C 166and, in that sense, strictly unila teral. These three reasons explain
Slovakia’s vigorous and consistent denials that any decisions concerning Variant C had
been taken before July 1991.
6. They also explain why the Court needs to take a view on when the planning and
167 168
construction of Variant C began, whether it was in July 1991 or at an earlier date .
We are not saying the Court has to decide on which day the decisions were taken, or at
what level of the Czechoslovak governmental sy stem they were taken. But it does need to
decide whether Hungary is correct in its conlcusion that by January 1991, at the very latest,
all the essential elements prior to the c onstruction of Variant C were in place, and
significant planning and other works had already been done. Because the proper
165 SC-M, para. 10.137 (emphasis added)
166 In this sense SC-M, para. 10.28.
167
SC-M, para. 5.67. See also SC-M, para. 6.05.
168
HR, paras. 2.18et seq. -81-
appreciation of Hungary’s conduct – was it merelyunilateral or was it a response to threats
of unlawful conduct – depends on that issue.
7. A word about the evidence. Slovakia claims it was a “ pot-pourriof press accounts
169
and unsubstantiated analyses” . Certainly Hungary has referred to some press
statements, and certainly there are analysesindependent of the Czechoslovak Government.
But there are also many governmental sources,official and semi-official, and these too are
170
inconsistent with the Slovak version of the facts .
T HE OFFICIAL SLOVAK POSITION
8. It is appropriate first to examine the Slovak position as set out in its pleadings. On
this point at least Slovakia is clear and consistent. It says that no planning or work was
done on Variant C before July 1991.
9. The Slovak Counter-Memorial is unequivocal. It states “the evidence establishes
that even the approval of initial financing and planningfor VariantC did not occur until
171
25 July 1991” . Since nothing comes before “initial financing and planning” we are to
conclude that there were no prior acts. Th e only evidence introduced in support of this
view is Resolution384 of the Government of the Slovak Republic of 23July1991 and
172
Resolution484 of the Czechoslova k Government of 25July1991 . But these
Resolutions do not show that noh ting was done earlier. At most they show that it was only
169 SR, para. 9.06.
170
See e.g., HR, Vol. 3, Anns. 66, 67, 68 and 81.
171
SC-M, para. 5.67 (emphasis added).
172 Reproduced at Slovak Memorial, Anns. 91 and 92. -82-
at the end of July 1991 that Czechoslovakia ws aprepared publicly to avow what was going
on. They stand in sharp contrast to theCzechoslovak and Slovak governmental documents
of 1989, 1990 and 1991 now available to the Court but not, of course, to Hungary at that
time.
10. The Slovak Reply reaffirms the previousposition, albeit with some amplification of
certain earlier “limited acts”. We are told thatas a result of lack of progress in settling the
dispute in the April and July1991 negotia tions the Czechoslovak Government “on
”173
25 July 1991, approved thefirst planning activities for VariantC . I stress the word
“first”. It claims no earlier planning whatsoever. And again we are told that construction
174
work on Variant C only began in November 1991 .
11. Slovakia does concede that some activity took place, but prior to July1991 this
related not to VariantC but to the Original Project 175. It was not “planning” or
“financing”. It was “study, discussion, negotiation”, and what Slovakia calls “contingent
construction” 176. I have checked to see whether there is such a thing as “contingent
construction” known to the engineering comm unity. There is not. Construction is
construction. So, we have here an admissi on from Slovakia that there was construction
before July 1991. The question is was th ere any evidence to a link between that
construction and Variant C.
173 SR, para. 9.22.
174
SR, para. 9.25.
175
SR, para. 9.18.
176 SR, para. 5.42. -83-
12. In sum, Slovakia’s position is that the c onstruction of VariantC was decided at a
rather late stage in the dispute, and only in response to “intransigent” Hungarian behaviour.
Slovakia asserts that construction of such anextensive project could be initiated and then
177
can be completed in just 11 months, with construction beginning in November 1991 .
THE EVIDENCE
13. So, let me turn now to the actual evidence available to the Court. The evidence is
mostly Czechoslovak, and it is mostly governmental. It shows that Czechoslovakia began
planning Variant C as early as August 1989; the decisions on design planning and finance
were taken in late 1990; and that author izations were granted and construction was
underway by early 1991 or very shortly thereafter; he “contingent construction” referred to
in the Reply could only have been on VariantC. Variant C was being implemented whilst
inter-governmental negotiations were beingundertaken from late 1990 until July 1991 and
beyond.
14. The evidence set out in the HungarianCounter-Memorial and Reply shows that by
the time Czechoslovakia adopted Resolution 484 on 25July1991 planning and
178
construction of Variant C was afait accompli .
177
SC-M, para. 5.79.
178 HR, especially at paras. 2.18 to 2.43. -84-
1989
15. One might begin in 1989 with a report from the Czechoslovak newspaper Pravda
containing an interview with EngineerOblozinsky . EngineerOblozinsky was then and
apparently still is now a senior official of the Bratislava-based state company responsible
for the construction of Variant C. He is well-placed to know the details. Before giving his
interview to Pravdahe had already confirmed on Czechoslovak radio that what he called
180
the “technical alternative” was “at the planning and design stage” . In the Pravda
interview published on 2November1989 he pr ovided further detailed elaboration of a
two-phased project. He said:
“We can only speak about a provisional alternative in phase one. We will first
build the leading dam . . . and constu rct it along an additional section on the
left-hand side of the river, where th e Danube functions as the joint frontier
between the 2 countries. We will then linkthe river on our territory to the original
dam on the right-hand side."181
179 Interview with Ing. Josef Oblozinsky: "C zechoslovakia to Continue Deliveries to
Gab_íkovo Hydroelectric Power Plant", Pravda, 2November1989; HR, Vol.3,
Ann. 60.
180 Rude Pravo , Bratislava, 1 September 1989, as cited in British Broadcasting
Corporation, Summary of World Broa dcasts, EE/W0095 A/1, 21September1989,
HC-M, Vol. 3, Ann. 79.
181 Supra , note 23. -85-
16. Thiis 1989. It confirms other official stateents from Czechoslovak authorities: a
report appearing a few days earlier in Pravdaincludes this statement on behalf of the
Czechoslovak Government: “in the event th e Hungarian Republic fails to meet its
obligations . . . the Czechoslovak Party will be compelled . . . to implement a provisional
182
technical solution exclusively based on the territory of the Czechoslovak Republic” (that
is October1989). And on 13November1989 Czechoslovak radio reported that “the
position for a new right bank dam for a new navigation channel began to be marked
183
out” .
17. So by November 1989 there can be little doubt that what later came to be known as
Variant C had graduated from aspiration to preparation.
1990
18. Preparatory work continued in 1990, not withstanding the silence of the Slovak
written pleadings on developments on VariantCthat year. Evidence of preparatory work
on Variant C is reflected in a number of statments and documents, including statements of
184
former employees made to the Czechoslovak press , and in research which was
undertaken within the auspices of the Minist ry of Forestry and Water Management of
Slovakia 185. In August1990 Slovak PrimeMinister Meciar indicated his commitment to
timely completion of a “substitute solution” . Completion — not commencement.
182 Pravda, 31 October 1989, HR, Vol. 3, Ann. 59.
183
British Broadcasting Corporation, Summa ry of World Broadcasts, EE/W0105 A/1,
30November1989, referring to Prague 1730 GMT, 13November1989; HC-M,
Vol. 3, Ann. 83.
184
HR, para. 2.22.
185
HR, para. 2.22.
186 HR, Vol. 3, Ann. 62. -86-
19. But perhaps the most interesting evidence is to be found in a series of documents
annexed to the Hungarian Reply. I would like torefer you to three in particular. To assist
in your reading of these documents we have prepared extracts from some of them which
you will find in a folder before you. We have highlighted some extracts where appropriate.
20. The first governmental document is entitled “International Law Analysis of the
Possibility of Implementing the Gab_í kovo Hydropower Plant as a National
187
Investment” . It is an internal memorandum dated 29October1990, which apparently
188
formed an attachment to an opinion on international law of 29November1990 . The
document makes it abundantly clear that by thisdate Variant C had left the drawing board,
but that its presentation required care. Th e legal opinion says “the Czech and Slovak
Federal Republic must present VariantC to the Hungarian partner as a provisional
solution”. It predicts—and as it turned out, with complete accuracy—that “the
realization of VariantC makes the limited operation of the Gab_íkovo plant possible in
only two years”. It says thatthe 1976 Boundary Waters Convention is not relevant because
“the realization takes place on the Czechoslovak section of the Danube, which does not
form the common Czecholsovak-Hungarian border”.
21. The legal opinion goes on to identify th e numerous considerations which were
assessed in concluding that VariantC did not violate international law. It refers, for
example, to the obligation under the 1977 Treaty relating to navigation, to the fact that
VariantC would not affect the “existing” boundary between the two States, and also
compliance to the water flow requirements ofArticle 14 of the 1977Treaty. But there is
one matter on which the opinion is conspicuously silent: the environment. No mention is
made of environmental obligations, whethr eunder Articles 15, 19 or 20 of the 1977 Treaty,
187
HR Vol. 3, Ann. 64.
188 HR, Vol. 3, Ann. 65. -87-
or otherwise. Article15, in fact, is only relevant and mentioned insofar as it relates to the
1976Convention which, of course, has been saiddoes not apply. And it appears that one
of the authors of this opinion is listed as a member of the Slovak legal team here today.
22. So legal opinions are being sought as to the legality of VariantC in October1990.
Nearly a year before “initial financing and planning” has began.
23. The second governmental document is an “Information Document for the Cabinet
Meeting of the Government of the Slovak Republic”. It is dated 29December1990, and
was prepared by the Ministry of Forest ry and Water Management of the Slovak
189
Republic , and was submitted directly to the Sl ovak Cabinet. You will find relevant
extracts in your folder. The document includesa draft Recommendation. It states that the
Government of the Slovak Republic
“A. acceptsthe potential alternatives of utilis ation of the Gab_íkovo Hydroelectric
Power Plant.
B. sets the task ... of ... preparing project documentation for the whole
process, including recommendations, in such a way that summary
proceedings leading to an earlier start of construction work might
become possible." 190
24. The documents also requires the Finance Minister to raise funds of some Kcs 86
million (some US$3million) "for the preparation of project documentation to make possible
the starting of work on and the subsequent realization of option C". And indeed an
attached memorandum says that document "C" is the best approach.
25. So this looks very much like a decision. But we are only in December 1990.
189
HR, Vol. 3, Ann. 68.
190 Emphasisadded. -88-
191
26. Other documents confirm that by this time additional finance had been raised ,
and that the decision to proceed with Varian t C had been taken even in the face of
unequivocal evidence and information indicating serious environmental damage. But the
documents do not show that an environmental impact assessment had been carried out or
would be carried out, or that Hungary had been notified. There is no evidence of any effort
by Czechoslovakia to consult with its ne ighbour as required by Article 3 of the 1976
Boundary Waters Convention. And now Slovakia asserts that while being planned that
Variant C was not being planned while these documents were being prepared.
27. These documents demonstrate that by December 1990 "Variant C" was well
underway.
1991
28. Apparently on the basis of the documentsI have just referred, to the Slovak Cabinet
took a key decision in January 1991. On 18January a Czechoslovak newspaper reported
that "the Government has accepted this proposal", referring to Variant C and presumably
192
the draft Recommendation. The paper predicted completion of the plant in 1993 . It is
193
corroborated by other Czechoslovak media reports at that time , and by subsequent
developments .194
191
HR, Vol. 3, Ann. 66.
192
HR, Vol. 3, Ann. 69.
193 See HC-M, Vol. 3, Ann. 87, reporting that the Slovak Government had "approved
further progress in the construction" of the alternative solution.
194 HM, Vol. 4, Ann. 43. -89-
29. The decision however did not attract unanim ous support in Slovakia has to be said.
I refer you in particular to the criticisms made on 5 February 1991 by the Head of the
Slovak Committee of Ecology and Environm ent – a governmental body – about the
Cabinet decision. She considered that no ad equate consideration had been given to
environmental arguments 195. She said of the decision-making process itself that it
reflected what she called "an attitude of technocracy in its assessment methodology" and
that the result reflected in her words "a bluntdisregard for all expert’s opinions ... on issues
of ecology [and] water management". As to the impacts of the proposed reservoir for
VariantC, sedimentation and groundwater po llution her conclusion - as you will see from
the Annex - is in every material respect identcial to that put to you by Professors Vida and
Carbiener, and just described to you now byProfessor Wheater and Dr. Kern earlier today.
Indeed a petition by local residents dated 20 February 1991 called for a halt to all work
related to the construction of the plant and the financing of the planning and preparatory
196
work of Variant C . Clearly the residents and Dr.Casova thought construction had
begun by that time.
30. Annex 74 of the Hungarian Reply is a report from Pravdaof 2 April 1991. It begins
with these words: "It is a well-known secr et that as of today, i.e. 2nd April, the
State-owned Hydrostav Bratislava company isintending to start the construction activities
related to the so-called Variant C. According to the Chairman of the Environmental and
Natural Protection Committee of the Slovak Nato inal Council "the realization of Variant C
[would] commence on 2 April 1991 ... without the approved planning documentation and
contrary to the opinions of the majority of the members of the specialist committees and
their leaders"197. In fact, as you will see from another document, the State Water
195
HR, Vol. 3, Ann. 70.
196 HR, Vol. 3, Ann. 71.
197
HR, Vol. 3, Ann. 72. -90-
Conservancy and Water Protection Department refused an application on 9 April 1991
from the Bratislava Water Engineering Company for the "construction of the water
conservation project" concerning "the commencement of the operation of the Gab_íkovo
198
Hydroelectric Power Station in the te rritory of the [Czech and Slovak Republic]" . This
is no doubt a normal application. But not fora project which has not yet been conceived,
or planned, or prepared or approved.
31. The third document is a June 1991 Technical Description and Economic
Assessment of Variant C (Illus. No. 13.1) 19. It was prepared by advisers for the Slovak
Government. At page 376, which is included in your folder, you will note the following
recommendation of Slovakia’s own advisers:
"it is recommended that the old river bed should be supplied with at least 600 m/s 3
water flow (during the growing season, this value leaps to 1300 m 3/s)".
Indeed later that month the Slovak Environmental Committee itself recommended that up
3 200
to 1500 m /s ought to be supplied to the old river bed . On the screen you will see how
those amounts compare to what the Danube used to receive (about 2025 m/s), how much
the EC recommended in January 1993 (just over 1010 m /s) and how much Slovakia has
actually provided on average between January 1993 and April 1995 (about 269 m /s).
32. You will also find in the document at page 382 an economic evaluation of various
flow rates into the old river bed (Illus No 13.2). This evaluation, prepared by Slovak
authorities, assesses the economic viability ofVariant C. As you will see on the screen, it
finds that at a flow rate of more than 1300 m 3/s the plant is of "declining profitability".
198 HR, Vol. 3, Ann. 81.
199 HR, Vol. 3, Ann. 77, p. 372.
200
HM, Vol. 4, Ann. 168, p. 406. -91-
3
Between 600and 1300 m /s – in another words at the level recommended by Slovak
authorities, it says that the plant would produce only a "moderate average level" of
profitability. But at a flow rate of 350 m /s the investment becomes "cost-effective". In
fact it goes on to say that at 50 m /s the Project becomes especially cost-effective. Since
October 1992 the old river bed has received a maximum averagesupply of rate of 350
3 3
m /s, and that at times this has dropped to 180 m/s. In other words, planning and operation
of Variant C has been carried out in full know ledge of the adverse consequences of the
more limited flow. Long term environmental sustainability is sacrificed to short term
economic gain. It is a very simple equatoin. The operation of Variant C after October 1992
is condemned by its own planners.
C ONCLUSION
33. Mr.President, Members of the Court, what conclusions are to be drawn from this
evidence and the other documents which are available to you in the Hungarian pleadings?
34. By July 1991 Variant C was well underway: The water company responsible for
the project had prepared detailed plans; the relevant authorities had received applications
201
for construction licenses (the terms of which were subsequently violated) ; the Slovak
Cabinet had taken a decision approving the project; local communities and Slovak
environmental authorities were protesting; financial resources had been committed;
construction was under way; and computationhad been made of the significant economic
gains at the low level of flow. The evidence also shows clearly that the basis upon which
the actual decisions were taken – legal, econom ic, environmental – was rudimentary to say
201
Communiqué of the Slovak Ministry ofEnvironment to the 4 December 1992 Session
of the Slovak Government; HC-M, Vol. 3, Ann. 57. -92-
the least. The Slovak submission that "in itial" planning approval only came on 25 July
1991 cannot be accepted.
35. These early developments also indicat e that the planning and construction of
VariantC had nothing to do with the April 1991 Resolution of the Hungarian Parliament,
202
as Slovakia claims . Czechoslovakia participated inthe April and July 1991 negotiations
whilst we now know, whilst actively preparing the unilateral diversion of the Danube.
Early planning confirms that Hungary term inated the 1977 Treaty long after Czechoslovak
violations of the 1977 Treaty, the 1976 B oundary Waters Convention and general
international law had occurred. And early planning and implementation show that
Hungary’s subsequent acts were directly related to Variant C.
36. Variant C brought to fruition a long-sta nding Czechoslovak aspiration. It gives
effect to the desire of Czechoslovakia – and now Slovakia – to be able to exercise unilateral
control over a dam on the Danube, and over the shared resources of a part of that river. This
long-standing aspiration explains why Czechoslovakia was never willing to engage in a
serious effort to modify the 1977 Treaty, or toesek to give real effect to Articles 15, 19 and
20 of the 1977 Treaty. And it also demonstrat es the real spirit according to which
Czechoslovakia – and now Slovakia – considered the 1977 Treaty to establish something
other than a "joint management project" in the sense that those words are normally
understood.
202 SM, para. 5.25. -93-
37. Mr. President, that concludes my subm ission and Hungary’s presentation for today.
Tomorrow morning Professor Kiss will address th e breaches of international law that have
been occasioned by the matters we have described today. Thank you very much for your
attention.
The PRESIDENT: Thank you, Mr.Sands. The Court will now rise and resume
tomorrow morning at 10 a.m.
The Court rose at 1 p.m.
_________
Audience publique tenue le mercredi 5 mars 1997, à 10 heures, au Palais de la Paix, sous la présidence de M. Schwebel, président