Audience publique tenue le mercredi 5 mars 1997, à 10 heures, au Palais de la Paix, sous la présidence de M. Schwebel, président

Document Number
092-19970305-ORA-01-00-BI
Document Type
Number (Press Release, Order, etc)
1997/4
Date of the Document
Bilingual Document File
Bilingual Content

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.

_________

Document Long Title

Audience publique tenue le mercredi 5 mars 1997, à 10 heures, au Palais de la Paix, sous la présidence de M. Schwebel, président

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