Summary of the Judgment of 25 September 1997

Summaries of Judgments, AdviNot an official document of the Internationa
l Court of Justice

CASE CONCERNING GABC~KBVO-NAGYMAROS PROJECT
(HUNGARY/SILOVAKIA)

Judgment of 25 September 1997

In its Judgment in the case concerning Gabcikovo- The complete text of the operative paragraph of the
Judgmentis as follows:
Nagymaros Project (HungaryISlovakia), the Court found
that Hungary was not entitled to suspend and:subsequently "155. For thesereasons,
abandon,in 1989,itspart ofthe worksin the damproject,as THECOURT,
laid down in tlie treaty signed in 1977 by Hungary and (1) Having regard to Article 2, paragraph 1, of the
Czechoslovakiaand related instruments; it also foundthat
Czechoslovakia was entitled to start, in November 1991, SpecialAgreement,
preparation of an alternative provisional soliltion (called A. Finds, by fourteen votes to one, that Hungary
"Variant C"), but not to put that solution into operationin was not entitled to suspend and subsequently abandon,
in 1989,the works on theNagymarosProjectand on the
October 1992 as a unilateral measure; that Hungary's part of the GabcikovoProject for which the Treaty of 16
notification of termination of the 1977 Treatyand related
i~istn~inentsn 19May 1992did not legally te~minatethem September 1977 and related instruments attributed
(and that they are conseque:ntlystill in forceand governthe responsibilityto it;
relationship between the Parties); and that Slovakia, as IN FAVOUR: President Schwebel; Vice-President
succ1:ssorto Czechoslovakiabecamea party to theTreaty of Weeramantry; Judges Oda, Bedjaoui, Guillaume,
1977. Ranjeva, Shi, Fleischhauer, Koroma, Vereshchetin,
Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc
PLS to the future conduct of the Parties, the Court found:
that Hungary and Slovakia.must negotiate in good faith in Skubiszewski;
the light of the prevailing situation, and must take all AGAINST:Judge Herczegh;
necessary measures to ensure the achievement of the B. Finds, by nine votes to six, that Czechoslovakia
objectives of the 1977Treaty; that, unless the Parties agree was entitled to proceed, in November 1991, to the

othe~wise.ajoint operationalregimefor the damon Slovak "provisional solution"as described in the terms of the
territory must be estab1isht:din accordance with the Treaty SpecialAgreement;
of 1977;that each Partymustcompensatethe otherParty for IN FAVOUR: Vice-President Weeramantry; Judges
the clamagecaused by its conduct; andthat the accounts for Oda, Guillaume, Shi, Koroma, Vereshchetin, Parra-
the constructionand operation of the works mlJstbe settled Aranguren,Kooijmans;Judge adhoc Skubiszewski;
in accordance with the relevant provisions of the 1977
Treatyand its related instruments. AGAINST: President Schwebel; Judges Bedjaoui,
Ranjeva,Herczegh,Fleischhauer,Rezek;
The Court also held that newly developed norms of C. Finds, by ten votes to fivethat Czechoslovakia
environmental law are relevant for the implementation of was not entitled to put into operation. fromOctober
the Treaty and that the Parties could, by agreement, 1992,this"provisionalsolution";
incorporate them through the application of several ofits
articles. It found that the Parties, in order to reconcile IN FAVOUR: President Schwebel; Vice-President
ecor~ornicdevelopmentwith protection of the environment, Weeramantry; Judges Bedjaoui, Guillaume, Ranjeva,
"should lookafresh at the effectson the environmentof the Herczegh,Shi,Fleischhauer,Kooijmans,Rezek;
AGAINST: Judges Oda, Koroma, Vereshchetin,
operation of the Gabcikovo power plant. In particularthey Parra-Aranguren;Judgeadhoc Skubiszewski;
must find a satisfactory solution for thevo1um.eof water to
be released intothe oldbed of theDanubeand into the side- D. Finds, by eleven votes to four, that the
armsof theriver. notification, on 19 May 1992, of the termination of the
The Court was co~nposed as follows: President Treatyof 16September 1977and related instrumentsby
Hungary did not have the legal effect of terminating
Schwebel; Vice-President Weeramantry; Jrudges Oda, them;
Bediaoui,Guillaume,Ranjeva, Herczegh,Shi, Fleischhauer,
Korotna, Vereshchetin, Parra-Aranguren, Kooijmans, IN FAVOUR: Vice-PresidentWeeramantry; Judges
Rezek; Judge ad hoc Sk.ubiszewski;Registrar Valencia- Oda, Bedjaoui, Guillaume, Ranjeva, Shi, Koroma,
Ospir~a. Vereshchetin, Parra-Aranguren, Kooijmans; Judge ad
hoc Skubiszewski; AGAINST: President Schwebel; Judges Herczegh, IN FAVOUR: President Schwebel; Vice-President
Fleischhauer. Rezek; Weeramantry; Judges Oda, Bedjaoui, Guillaume,
(2) Having regard to Article 2. paragraph 2, and Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren,
Article 5 of the SpecialAgreement, Kooijmans,Rezek;Judge ad hoc Skubiszewski;
AGAINST:Judges Herczegh,Fleischhauer."
A. Finds, by twelve votes to three, that Slovakia, as
successor to Czechoslovakia, became a party to the
Treaty of 16September 1977as from 1January 1993;
IN FAVOUR: President Schwebel; Vice-President
Weeramantry; Judges Oda, Bedjaoui, Guillaume,
President Shwebel and Judge Rezek appended
Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren, declarations to the Judgment of the Court. Vice-President
Kooijinans;Judge ad hoc Skubiszewski; Weeramantry, Judges Bedjaoui and Koroma appended
AGAINST:Judges Herczegh,Fleischhauer,Rezek; separate opinions. Judges Oda, Ranjeva, Herczegh,
B. Finds,by thirteen votes to two, that Hungary and Fleichhauer, Vereshchetin and Parra-Aranguren, and Judge
ad hoc Skubiszewskiappendeddissentingopinions.
Slovakia must negotiate in good faith in the light of the
prevailing situation, and inust take all necessary
measures to ensure the achievement of the objectives of
the Treaty of 16 September 1977, in accordance with
such modalitiesas they may agree upon;
IN FAVOUR. President Schwebel; Vice-President Review of theproceedirzgs mid-statement qf'clainzs
(paras. 1-14)
Weerainantry; Judges Oda, Bedjaoui, Guillaume,
Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren, Th.eCourt begins by recalling that proceedingshad beell
Kooijmans,Rezek;Judge ad hoc Skubiszewski; institutedon 2 July 1993by ajoint notification,by Hungaiy
AGAINST:Judges Herczegh,Fleischhauer; and Slovakia,of a SpecialAgreement,signed at Brussels on

C. Finds, by thirteen votes to two, that, unless the 7 April 1993. After setting out the text of the Agreement,
Parties otherwise agree, a joint operational regime must the Court recites the successive stages of the proceedings,
be established in accordance with the Treaty of 16 referring, among other things, to its visit, on the invitation
September 1977; of the parties. to the area, from 1 to 4 April 1997.Ither
IN FAVOUR: President Schwebel; Vice-President sets out the submissionsof the Parties.
Weeranlantry; Judges Oda, Bedjaoui, Guillauine,

Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren, History of the dispute
Kooijmans,Rezek; Judgead hoc Skubiszewski; (paras. 15-25)
AGAINST:JudgesHerczegh,Fleischhauer; The Court recalls that the present case arose out of the
D. Firids,by twelve votes to three, that, unless the
signature, on 16 September 1977, by the Hungarian
Parties otllerwise agree, Hungary shall compensate People's Republicand the CzechoslovakPeople's Republic,
Slovakia for the damage sustained by Czechoslovakia of a treaty "concerning theconstructionand operationof the
and by Slovakia on account of the suspension and Gabcilcovo-NagymarosSystemof Locks"(hereinaftercalled
abandonment by Hungary of works for which it was the "1977 Treaty"). The names of the two contracting States
responsible; and Slovakia shall compensateHungary for have varied over the years; they are referred to as Hungary
the damage it has sustained on account of the putting and Czechoslovakia.The 1977 Treaty entered into force on
into operation of the "provisional solution" by
30 June 1978.It provides for the constructionand operation
Czechoslovakia and its maintenance in service by of a System of Locks by the parties as a "joint investment".
Slovakia; According to its Preamble, the system was designed to
IN FAVOUR: President Schwebel; Vice-President attain "the broad utilization of the natural resources of the
Weeramantry; Judges Bedjaoui, Guillaume, Ranjeva, Bratislava-Budapest section of the Danube river for the
Herczegh, Shi, Fleischhauer, Parra-Aranguren, development of water resources? energy, transport,

Kooijmans,Rezek; Judge ad hoc Skubiszewski; agricultureand other sectors of the national economy of the
AGAINST:Judges Oda,Koroma, Vereshchetin; Contracting Parties". The joint investment was thus
E. Finds, by thirteen votes to two, that the essentially aimed at the production of hydroelectricity, the
settlementof accountsfor the constructionand operation imnpro\~emeno tf navigation on the relevant section of the
of the works must be effected in accordance with the Danube and the protection of the areas along the banks
against:flooding. At the same time, by the terms of the
relevant provisions of the Treaty of 16 September 1977 Treaty.,the contracting parties undertook to ensure that the
and related instruments, taking due account of such
measures as will have been taken by the Parties in quality of water in the Danube was not impaired as a result
application of points 2 B and C of the present operative of the Project, and thatcompliance with the obligations for
paragraph. the protection of nature arising in connection with the
constn~ctionand operationof the Systemof Locks would be
observed. The sector of the Danutberiver with which this case is by a Protocol signed on 6 February 1989to accelerate the
concerned is a stretch of approximately 200 kilometres, Project.
between Bratislava in Slovakia and Budapest in Hungary. As a result of intense criticism which the Project had
Below Bratislava, the river gradient decreases markedly,
generated in Hungary, the Hungarian Government decided
creating an alluvial plain of graveland sand sediment. The on 13 May 1989 to suspend the works at Nagymaros
boundarybetween the two Statesis constituted,in the major pending the completion of various studies which the
part of that region,by the main channelof theriver. Cunovo competent authorities were to finish before31 July 1989.
and, further downstream, Gabcikovo, are situated in this On 21 July 1989, the Hungarian Government extended the
sector of the river on Slovak territory, Cunovoon the right suspension of the works at Nagymaros until 31 October
bank.and Gabcikovoon the left. Further downstream, after 1989, and, in addition, suspended the works at Dunakiliti
the confluence of the va1:iousbranches, the river enters
Hungarian territory.Nabyrnaroslies in a narrow valley at a until the same date. Lastly, on 27 October 1989, Hungary
decidedto abandonthe worksatNagymarosandto maintain
bendiin the Danubejust before it turns south, 1:nclosingthe the statusquoatDunakiliti.
large river island of Szentendre before reaching Budapest During this period, negotiations took place between the
(seesketch-mapNo. I). parties. Czechoslovakiaalso started investigatingalternative
The 1977 Treaty describes the principal works to be solutions.Oneof them, an alternative solution subsequently
constructed in pursuance of the Project. It provided forthe
known as "Variant C", entaileda unilateral diversion of the
building of two series of locks, one at Gabcikovo (in Danube by Czechoslovakia on its territory some 10
Czechoslovak territory) and the other at Nagymaros (in kilometresupstreamof Dunakiliti(seesketclt-mapNo. 3). In
Hungarian territory), to constitute"a single arid indivisible its final stage, Variant C included the constniction at
operational system of works" (see sketch-ntapNo. 2). The Cunovo of an overflowdam anda levee linkingthat dam to
Treaty further provided that the technical specifications the south bank of the bypasscanal. Provisionwas madefor
concerning the system would be included in the "Joint ancillaryworks.
ContractualPlan" which was to be drawn up in accordance
On 23 July 1991, the Slovak Government decided"to
with theAgreement signedby the twoGoverntnentsfor this begin, in September 1991, construction to put the
purpose on 6 May 1976. It also provided for the Gabcikovo Project into operation by the provisional
construction, financing and managementof the works on a solution". Work on Variant C began in.November 1991.
joint basis in which the Parties participated in equal Discussions continued between the two parties but to no
measure. avail, and, on 19 May 1992, the Hungarian Government
The Joint ContractualI'lan, set forth, on a large number
transmitted to the Czechoslovak Government a Note
of points, both the objectives of the system and the Verbale terminating the 1977 Treaty with effectfrom 25
characteristics of the works. It also contained"Preliminary May 1992. On 15 ~ctober 1992, Czechoslovakia began
Operating and Maintenance Rules", Article 23 of which work to enable the Danube tobe closed and, starting on 23
specified that "The final operating rules [should] be October,proceededto the dammingof theriver.
approved within a year of'the setting into operation of the
system." The Court finallytakesnote of the fact that on 1January
1993 Slovakia became an independent State; that in the
The Court observes that the Project was thus to have Special Agreement thereafter concluded betweenHungary
taken the form of an integratedjoint project with the two and Slovakiathe Partiesagreedto establishand implementa
contracting parties on an equal footing in rc:spectof the temporary water management regime for the Danube; and
financing, construction and operation of the works. Its that finallythey concludedan Agreementin respect of it on
single and indivisible nature was to have been realized 19 April 1995,which wouldcome to an end 14 days after
throughthe JointContract~lalPlanwhich complementedthe the Judgmentof the Court.The Court also observesthat not
Treaty.In particular,Hungary wouldhave had controlof the
only the 1977Treaty,but also the "related instruments"are
sluices at Dunakiliti and the works at Nagymaros,whereas covered in the preamble to the Special Agreementand that
Czechoslovakia would ha.vehad control of the works at the Parties,when concentratingtheir reasoning on the 1977
Gabcikovo. Treaty, appear to have extended their arguments to the
"relatedinstruments".

'Theschedule of work had for its part been fixed in an Szlspe~zsionand abandonment by Hungary, in 1989, of
Agreement on mutual assistance signed by th.etwo parties works on the Project
on 1.6September 1977,at the same time as the Treaty itself. (paras. 27-59)
The Agreementmade s0m.eadjustmentsto the:allocationof
the works between the parties as laid down by the Treaty. In terms of Article 2, paragraph 1 (a), of the Special
Wolrk on the Project started in 1978. On Hungary's Agreement,the Court is requestedto decide first
"whether the Republic of Hungary was entitled to
initiative, the two partier; first agreed, by two Protocols suspend and subsequently abandon,in 1989,the works
signed on 10 October 1983to slow the work down and to on the Nagymaros Project and on the part of the
postpone putting into operation thepower plants, and then, Gabcikovo Project for which the Treaty attributed Law Commission are relevant in the present case: it must

responsibilityto the Republicof Hungary". have been occasionedby an "essential interest"of the State
The Court observes that it has no need to dwell upon the which is the author of the act conflicting with one of its
question of the applicability or non-applicability in the international obligations; that interest must have been
preseill case of the Vienna Convention of 1969 on the Law threatened by n "grave and imminent peril"; the act being
of Treaties, as arbwedby the Parties. It needs only to be challenged must have been the "only means" of
safeguarding that interest; that act must nothave "seriously
mindful of the fact that it has several times had occasion to
hold that some of the rules laid down in that Convention impair[ed] an essential interest" of the State towards which
might be considered as a codification of existing customary the obligation existed; and the State which is the author of
law. The Court takes the view that in many respects this that act must not have "contributed to the occurrence of the
applies to the provisions of the Vienna Conventioii state of necessity". Those conditions reflect custon~aiy
concerning the termination and the suspension of the internationallaw.
operatioii of treaties, set forth in Articles 60 to 62. Neither The Court has no difficulty in acknowledging that the

has tlie Court lost sight of the fact that the Vienna concerns expressed by Hungary for its natural environment
Convention is in any event applicable to the Protocol of 6 in the region affectedby the Gabcikovo-NagymarosProject
February 1989 whereby Hungary and Czechoslovakia relatedto an "essential interest"of that State.
agreed to accelerate completion of the works relating to the It iisof the view, however, that, with respect to both
Gabcikovo-NagymarosProject. Nagyniaros and Gabcikovo, the perils invoked by Hungary,

Nor does the Court need to dwell upon the question of withou-t prejudging their possible gravity, were not
the relationship between the law of treaties and the law of sufficiently established in 1989,nor were they "imminent";
State responsibility, to which the Parties devoted lengthy and that Hungaryhad available to it at that tiine means of
arguments, as those two branches of international law responding to these perceived perils other than the
obviously have a scope that is distinct. A determination of suspension and abandonment of works with which it had
whether a conventionis or is not in force, and whether it has been entrusted. What is more, negotiations were under way
or has not been properly suspended or denounced, is to be which might have led to a review of the Project and the

made pursuant to the law of treaties. On the other hand, an extension of some of its time limits, without there being
evaluation of the extent to which the suspension or need to abandonit.
denunciation of a convention, seen as incompatiblewith the The Court further notes that Hungary whenit decided to
law of treaties, involvesthe respoiisibilityof the Statewhich conclude the 1977 Treaty, was presumably aware of the
proceeded to it, is to be made under the law of State situation as then known; and that the need to ensure the
responsibility. protection of the environment had not escaped the parties.

The Court cannot accept Hungary's argument to the Neither can it fail to note the positions taken by Hungary
effect that, in 1989, in suspending and subsequently after the entry into force of the 1977 Treaty. Slowly,
abandoning the works for which it was still responsible at speeded up. The Court infers that, in the present case, even
Nagymaros and at Dunakiliti, it did not suspend the if it had been established that there was, in 1989,a state of
application of the 1977 Treaty itself or then reject that necessity linked to the performailce of the 1977 Treaty,
Treaty. The conduct of Hungary at that time can only be Hungary would not have been pernlitted to rely upon that
interpreted as an expression of its unwillingness to comply state of necessily in order to justify its failure to conlply

with at least some of the provisions of the Treaty and the with its treaty obligations, as it had helped, by act or
Protocol of 6 February 1989, as specified in the Joint omissionto bring it about.
Contractual Plan. The effect of Hungary's conduct was to In the light of the conclusions reached above, the Court
render impossible the accomplishment of the system of finds that Hungary was not entitled to suspend and
works that the Treaty expressly described as "single and subsequently abandon, in 1989, the works on tlie
indivisible".
NagyrnarosProject and on the part of the GabcikovoProject
The Court then considers the question of whether there for which the 1977Treaty andrelated instrumentsattributed
was, in 1989. a state of necessity which would have responsibilityto it.
permitted Hungary, without incurring international
responsibility, to suspend and abandon works that it was Czeckoslovakia j.proceeding, iinNovenrbei. 19YI, to
committed to perfornl in accordance with the 1977 Treaty
and related instruments. "Variant C" and putting into opei-ation,$-on1OctoBer
1992, this Variant
The Court observes,firstof all, that the state of necessity(paras. 60-88)
is a ground recognized by customary international law for
precludiilg the wrongfulness of an act not in conformity By the terms of Article 2, paragraph 1(b), of the Special
with an international obligation. It considers moreover that Agreement,the Court is asked in the secondplace to decide
such ground for precluding wrongfulness can only be "'(b)whether the Czechand SlovakFederal Republic
accepted on an exceptional basis. The following basic was entitled to proceed, in November 1991, to the
'provisional solution' and to put illto operation froin
coilditionsset forth in Article 33 of the Drafi Article on the
Internalional Responsibility of States by the International October 1992this system". Czecl~oslovakia had maintained that proceeding to Slovakia also maintainedthat it was acting under a duty
Variant C and putting it into operation did not constitute to mitigate damages when it carried out Variant C. It stated
internationally wrongful acts; Slovakia adopted this that "It is a generalprinciple oflternatioilallaw thata party
argument. During the proceedings before the Court Slovakia injured by the non-performance of another contract party
contended that Hungary's decision to suspend and must seekto mitigate the damagehe has sustained." But the
subseciuently abandon the: coilstiuction of works at Court observes that, while this principle might thus provide

Dunakiliti had made it impossible for Czechoslovakia to a basis for thecalculatioil of damages, it could not, on the
cany out the works as initially contemplated by the 1977 other hand, justify an otherwise wrongful act. The Court
Treaty and that the latter was therefore entitled to proceed further considers that the diversion of the Danube carried
with a solutioilwhich was a:;close to the original Projectas out by Czechoslovakia was not a lawful countermeasure
possible. Slovakia invoked what it described as a"principle becauseit was not proportionate.
of approximate application" to justify the constructionand
In the light of the conclusions reached above, the Court
operation of Variant C. It explained that this was the only finds that Czechoslovakia was entitled to proceed, in
possibility remaining to ii: "of fulfilling not only the November 1991, to Variant C insofar as it then confined
purpo:sesof the 1977 Treaty, but the continuing obligation itself to undertakingworks which did not predetermine the
to imyleinentit in good faith'". final decision to be taken by it. On the other hand,
The Court observes that itis not necessary to determine Czechoslovakia was not entitled to put that Variant into
whether there is a principle of international law or a general operation froinOctober 1992.

priilcipleof law of "approximate application" because, even
if such a principle existed, it could by definition only be Notz$cation by Hzrngnry,on 19 Mqy 1992, ofthe
employed within the limits of the treaty in ques.tion.In the terinirrntionof the 1977 Treatyaild related
view of the Court. Variant C does not meet that cardinal i~zslr~r~nents
condit.ionwith regard to the 1977Treaty. (paras. 89-115)

As the Court has already observed, the basic By the ternls of Article 2, paragraph 1(c), of the Special
characteristic of the 1977T:reatyis, according to Article 1. Agreement. the Court isasked,thirdly, to determine
to provide forthe constructionof the Gabcikovo-Nagymaros
System of Locks as a joint investment constituting a single "what are the legal effects of the notification, on19May
and indivisible operationalsystem of works. Thiselementis 1992,of the terminationof the Treatyby the Republic of
equally reflected in Articles 8 and 10 of the Treaty Hungary".
providing for joint ownership of the most important works During the proceedings, Hungary presented five

of the Gabcikovo-Nagyinaros projectand for the operation arguments in support of the lawfulness, and thus the
of this joint property as a coordinated single unit. By effectiveness, of itsotificatioilof termination. These were
definition all this could not be carried out b:y unilateral the existence of a state of necessity; the impossibility of
action. In spite of having a certain external physical performance of the Treaty; the occurrence of a fundamental
similarity with the originalProject, Variant C thus differed change of circumstances; the material breach of the Treaty
sharply from it in its legal characteristics. The Court by Czechoslovakia; and. finally, the development of new
nonns of international environmental law. Slovakia
accortiingly concludes that Czechoslovakia, in putting
Variant C into operation, was not applying the 1977 Treaty contestedeach of these grounds.
but, on the contrary, violated certain of its express
provisions, and, in so doin!;, committed an internationally
wrongful act.
The Court notes that between November I991 and The Court observes that, even if a state of necessity is
found to exist, it is not a ground for the termination of a
Octok~er 1992. Czechoslovakia confined itself to the treaty. It may only be invoked to exonerate from its
execution, on its own territory, of the works which were responsibilitya Statewhichhas failedto implementa treaty.
necessary for the implemec~tationof Variant C, but which
could have been abandoned if an agreement had been
reached between the parties and did not therefore
predetermine the final decision tobe taken. For as long as
the Clanubehad not been unilaterally dammed, VariantC The Court finds that it is not necessary to determine
whether the tenn "object" in Article 61 of the Vienna
had not in fact been applied. Such a situationis not unusual Convention of 1969 on the Law of Treaties (which speaks
in international lawol:,for that matter, in domestic law. A of "permaneilt disappearance or destruction of an object
wronl;firl act or offence is frequently preceded by indispensablefor the executionof thetreaty" as a groundfor
preparatory actions which arenot to be conhsed with the terminating or withdrawing from it) can also be understood
act or offence itself. It is as well to distinguish betweenthe to embrace a legal regime as in any event, even if that were
actual commission of awro~~gfua lct (whether instantaneous
the case, it would have to conclude that in this instance that
or continuous) and thecondiactprior to that act which is of a regime had not definitively ceased to exist. The 1977
preparatory character and which "does not qualify as a Treaty - and in particular its Articles 15, 19 and 20 -
wrongful act". actually made availableto the parties thenecessaiy means toproceed at any time, by negotiation, to the required in the Joint Contractual Plan. By inserting these evolving
readjustmentsbetweeneconomicimperativesand ecological provisionsin the Treaty, the partiesrecognizedthe potential

imperatives. necessity to adapt the Project. Consequently, the Treaty is
not static, and is open to adapt to emerging norms of
Ft4ndantentalchange ofcircunlsta~lces internatioilal law. By means of Articles 15 and 19, new
environmental norms can be incorporated in the Joint
In the Court's view,the prevalent political conditions Contractual Plan. The awareness of the vulnerability of the
were not so closely linked to the object and purposeof the environment and the recognition that environmentalrisks
Treatythat theyconstituted an essentialbasisof the consent have to be assessed on a continuous basis have become
of the parties and, in changing, radically altered the extent
of the obligations still to be performed. The same holds much stronger in the years since the Treaty's conclusion.
These new concerns have enhanced the relevance of
good for the economic system in force at the tiine of the Articles 15, 19 and 20. The Court recognizes that both
conclusion of the 1977Treaty. Nor does the Court consider Parties agree on the need to take environmental concerns
that new developments in the state of environmental seriously and to take the required precautionary measures,
knowledge and of environmental law can be said to have but they fundamentally disagree on the consequences this
been completelyunforeseen. What is more,the formulation
of Articles 15, 19 and 20 is designed to accommodate has for the joint Project. In such a case, third-party
involvement may be helpful and instrumental in finding a
change. The changed circumstances advancedby Hungary solution, provided each of the Parties is flexible in its
are thus, in the Court's view,not of such a nature, either position.
individuallyor collectively,that their effectwould radically Finally, the Court is of the view that although it has
transform the extent of the obligations still tobe performed found that both Hungary and Czechoslovakia failed to
in orderto accomplishthe Project.
comply with their obligationsunder the 1977 Treaty, this
reciprocal wrongful conduct did not bring the Treatyto an
Material breach of the Treat?, endnorjustify its termination.
Hungary's main argumentfor invokingamaterialbreach Irithe light of the conclusions it has reached above, the
of the Treatywas the constructionand putting into operation Court finds that thellotificationof ternlinatioby Hungary
of 19May 1992did not havethe legal effect of terminating
of Variant C. The Court pointed out that it had already
found that Czechoslovakiaviolated theTreaty only whenit the 1977Treatyand related instruments.
diverted the waters of the Danube into the bypass canalin
October 1992.In constructing the works whichwould lead Dissoltrtion of Czechoslovakia
to the putting into operationof Variant C, Czechoslovakia (paras. 117-124)
did not act unlawfully. In the Court's view, therefore, the
The Court then turns to the question whether Slovakia
notificationof terminationby Hungary on 19May 1992was became a party to the 1977 Treaty as successor to
premature. No breach of the Treaty by Czechoslovakiahad Czechoslovakia. As an alternative argument, Hungary
yet taken place and consequentlyHungary wasnot entitled contendedthat, even if the Treaty survived the notification
to invoke any such breach of the Treaty as a ground for
terminatingit when it did. of tei-mination,in any event it ceased to be in force as a
treaty on 31 December 1992, as a result of the
"disappearance of one of the parties". On that date
Developinent of new norms of intemcrtional Czechoslovakia ceased to exist as a legal entity,and on 1
environnteiztal law January 1993 the Czech Republicand the Slovak Republic
came into existence.
The Courtnotesthat neitherof the Partiescontendedthat
new peremptory norms of environmentallaw had emerged The Court doesnot find it necessary for the purposes of
since the conclusion of the 1977Treaty; and the Court will the present case to enter into a discussionof whether or not
consequently not be required to examine the scope of Article 34 of tlie 1978Vienna Conventionon Successionof
Article 64 of the Vienna Conventionon the Law of Treaties States in respect of treaties (in which a rule of automatic
(which treats of the voidance and termination of a treaty successionto all treaties is provided for) reflects the state of
because of the emergence of a new peremptory norm of customary international law. More relevantto its present

general internationallaw (ius cogens)). On the other hand, analysis is the particular nature and character of the 1977
the Court wishes topointout that newly developednorms of Treaty. An examination of this Treaty confirms that, aside
environmental law are relevant for the implementation of from its undoubted nature as a joint investment, its inajor
the Treaty and that .the parties could, by agreement, elementswere the proposed constructionandjoint operation
incorporate them through the applicationof Articles 15, 19 of a large, integrated and indivisible complexof structures
and 20 of the Treaty. These articles donot contain specific and installations on specific parts of the respective
obligations of performance but require the parties, in territories of Hungaly and Czechoslovakia along the

carrying out their obligations to ensurethat the quality of Danube.The Treatyalso establishedthe navigationalregime
water in the Danube is not impaired and that nature is for an important sector of an international waterway, in
protected, to take new environmental norms into particular the relocationof the main international shipping
considerationwhen agreeinguponthe meansto be specified lane to the bypass canal. In so doing, it inescapably createda situation in which the interests of other users of the placed within the context of the preserved and developing
Danube were affected. Furthermore, the interests of third treatyrelationship,in orderto achieve its objectandpurpose
States were expresslyacknowledgedin Article 18,whereby insofar as that is feasible. For it is only then that the
the parties undertook to ensure "uninterrupted and safe irregular state of affairs which exists as the result of the

navigation onthe internationalfairway" inaccordancewith failure of both Parties to comply with their treaty
their obligations under the Convention of 18August 1948 obligationscanberemedied.
concerningtheRCgimeofNavigationon the Danube. The Court points out that the 1977Treaty is not only a
The Court then refers to Article 12 of the 1.978Vienna joint investmentproject for the production of energy,but it
Convention on Successionof States in respect of Treaties, was designed to serve other objectives as well: the
which reflects the principle that treaties of a territorial improvement of the navigability of the Danube, flood

chara.cterhave been regarded both in traditional doctrine controlandregulationof ice-discharge,andthe protectionof
and in modern opinion as unaffected by a siiccession of the naturalenvironment.In order to achievethese objectives
States. The Court considers that Article12reflects a rule of the parties accepted obligations of conduct, obligations of
customary internationallaw; and notes that neither of the performance,and obligations of result. The Court is of the
Parties disputed this. It concludes that the content of the opinion thatthe Parties are under a legal obligation, during
1977 Treaty indicates that it must be regarded as the negotiations to be held by virtue of Article 5 of the
establishing a territorial regime within the meaning of Special Agreement, to consider, within the context of the

Article 12 of 1978Vienna Convention.It created rightsand 1977 Treaty, in what way the multiple objectives of the
obligations"attaching to" the parts of the Danube to which Treaty can best be served,keeping in mind that all of them
it relates; thus the Treaty itselfcould not be affected by a shouldbe fulfilled.
succe:ssionof States. The Court thereforeconclildesthat the It is clear that the Project's impact upon, and its
1977 Treaty became binding upon Slovakia on 1 January implications for, the environment are of necessity a key
1993. issue. In order to evaluate the environmental risks, current

standardsmust be taken intoconsideration.This isnot only
Legal consequences of theJtldgnie~lt allowed by the wording of Articles 15 and 19, but even
(paras. 125-154) prescribed, to the extent that these articles impose a
continuing - and thus necessarily evolving - obligation
The Court observes that the part of its Judgmentwhich on the parties to maintain the quality of the water of the
answers the questions in Article 2, paragraph 1, of the Danube and to protect nature. The Courtis mindful that, in
Special Agreement has a declaratorycharacter.It dealswith the field of environmental protection, vigilance and
the past conduct of the Parties and determines the
lawfiilness or unlawfulness of that conduct between 1989 prevention are required on account of the often irreversible
and 1992aswellas its effectsonthe existenceofthe Treaty. character of damage to the environment and of the
limitations inherentin the very mechanismof reparation of
Now the Court has, on thebasis of the foregoingfindings,to this type of damage. New norms and standards have been
determine what thefuture conduct of the Partiesshould be. developed,set forthin a greatnumberof instrumentsduring
This part of the Judgment is prescriptive rather than the last twodecades. Suchnew normshave to be taken into
declaratory because it determines what the rights and consideration,and such newstandards given proper weight,
obligations of the Parties are. The Parties willhave to seek
agreement on the modalities of the execution of the not only when States contemplate new activities but also
Judgment in the light of this determination,as they agreed when continuing with activities begun in the past. For the
to do in Article 5 of the Spe:cialAgreement. purposes of the present case, this means that the Parties
togethershouldlookafresh atthe effectsonthe environment
11this regard it is of ceudinalimportancethat the Court of the operation of the Gabcikovopowerplant. In particular
has found that the 1977'Treaty is still in force and they must find a satisfactory solution for the volume of
consequently governs the relationshipbetween the Parties. waterto be released into the oldbed of the Danubeand into
That relationship is also determined by the niles of other the side-armson both sidesoftheriver.
relevant conventions to which the two States itre party, by
What is required in the present case by the rule pacta
the rules of general internationallaw and, in this particular sunt sewarzda, as reflected in Article 26 of the Vienna
case, by the rules of State~:esponsibility;ut it is governed, Convention of 1969 on the Law of Treaties, is that the
above all, by theapplicable:rules of the 1977T:reatyas a lex Parties find an agreed solution within the co-operative
spec,ialis. The Court observes that it cannot, however, context of the Treaty. Article 26 combinestwo elements,
disregard the fact that the Treaty has not been fully
implementedby either party for years, and indeedthat their which are of equal importance. It provides that "Every
acts of commission and omission have contributed to treaty in force is binding upon the parties to it and must be
performedby them in good faith". This latter element,in the
creating the factual situation that now exists. Nor can it Court's view, implies that,in this case, it is the purpose of
overlook that factual situation - or fne practical the Treaty,and the intentionsof the parties in concludingit.
possibilities and impossibilities to which it gives rise - which should prevail over its literal application. The
when deciding on the legal requirements for the future principle of good faith obliges the Parties to apply itin a
cond.uctof the Parties. What is essential, therefore, is that
the fBctualsituationas it has developed since :i989shall bereasonablewayand in such a mannerthat its purpose can be paragraphs. I have voted against operative paragraph 1 B
realized. essentially because I view the constructionof "Variant C",

The 1977 Treaty not only contains a joint investment the "provisional solution",as inseparablefrom its being put
programme, it also establishes a regime. According to the into operation.I havevoted against operativeparagraph1D
Treaty, the main structures of the System of Locks are the essentially because I am not persuaded that Hungary's
joint property of the Parties; their operation will take the positionas the Party initiallyin breachdeprived itof a right
fornl of a coordinated single unit; and the benefits of the to terminate the Treaty in response to Czechoslovakia's
materialbreach, abreachwhich in my view (as indicatedby
project shall be equally shared. Since the Court has found
that the Treaty is stillin force and that, under its terns, themy vote onparagraph 1B) was intrain when Hungarygave
joint regime is a basic element, it considers that, unless the noticeof termination.
Parties agree otherwise,such a regime should be restored. At the same time, I fully supportthe conclusions of the
The Court is ofthe opinionthat the works at Cunovo should Court as to what should be the future conduct of the Parties
become ajointly operatedunitwithin the meaningof Article andas to dispositionof issuesof compensation.
10,paragraph 1,in viewof their pivotal roleinthe operation

of what remains of the Project and for the water- Declaration ofJzldgeRezek
managementregime. Thedam at Cunovo has taken over the
role which was originally destined for the works at Judge Rezek considers that the 1977Treaty isno longer
Dunakiliti, and therefore should have a similar status. The in existence, since it has been abrogated by the attitude of
Court also concludes that Variant C, which it considers the tvto Parties. From that conclusion, however, he infers
operates in a manner incompatiblewith the Treaty, should consequencesvery similarto thosewhich the majority infers
from the continued existence of the treaty. First, there is
be made to conforn to it. It observes that re-establishment what has been accomplished, and accomplished in good
of the joint regime will also reflect in an optimal way the
concept of commonutilization of shared water resources for faith.There is, alsoand aboveall, thevery principle of good
the achievement of the several objectives mentionedin the faith .whichmust lead here to the fulfilment of reciprocal
Treaty. duties remaining from a treaty which has not been
Havingthus far indicatedwhat in its view shouldbe the implementedthroughthe reciprocalfaultof the two Parties.

effectsof its findingthat the 1977Treaty is stillin force, the
Court turns to the legal consequencesof the internationally Sepnmte opiizionof Vice-Presideitt Weeramantry
wrongful acts committedby the Parties, as it had also been Judge Weeramantry agreed with the majority of the
asked by both Parties to detennine the consequencesof the Courtin all their conclusions.
Judgmentasthey bear uponpayment of damages.
However, in his separate opinion, he addressed three
The Court has not been asked at this stageto determine questions dealing with aspectsof environmental law - the
the quantum of damages due,but to indicate on what basis principle of sustainable development in balancing the
they should be paid. Both Parties claimed to have suffered competing demands of development and environmental
considerable financial losses and both claim pecuniary protection,the principle of continuingenvironmentalimpact
compensationforthem.
assessment, and the question of the appropriateness ofthe
In the Judgment, the Court has concluded that both use of'aniizterpartes legal principle suchas estoppelin the
Parties committed internationally wrongful acts,and it has resolution of issues withei-gaomnesimplicationssuchas a
noted that those acts gave rise to the damage sustainedby claimthatenvironmentaldamageisinvolved.
the Parties; consequently,Hungary and Slovakia are both On the first question, his opinion states that both the
under an obligation to pay compensation and are both right to development and the right to environmental
entitled to obtain compensation. The Court observes,
however, that given the fact, that there have been protection are principles currently forming part of the
corpus of internationallaw. They could operatein collision
intersecting wrongs by both Parties, the issue of with each other unless there was a principleof international
compensation could satisfactorily be resolved in the law which indicated how they should be reconciled. That
framework of an overall settlement if each of the Parties principle is the principle of sustainable developmentwhich,
were to renounce or cancel all financial claims and counter- according to this opinion, ismore thana mere concept,but
claims.At the same time, the Court wishes topoint outthat
the settlementof accounts for the constructionof the works is itself arecogiiizedprinciple of contemporaryinternational
is different from the issue of compensation, and must be law.
In seeking to develop this principle, the Court should
resolved in accordance with the 1977 Treaty and related draw upon prior humanexperience, for humanity has lived
instruments. If Hungary is to share in the operation and for millennia with the need to reconcile the principles of
benefitsof the Cunovo complex, itmustpay a proportionate
shareof the building and running costs. development and care for the environment. Sustainable
development is therefore not a new concept and, for
developing it today, a rich body of global experience is
Declni-ationof Presideitt Schwebel available. The opinion examines a number of ancient
I arnlargelyin agreementwith the Court'sJudgment and irrigation civilizations for this purpose. The Court, as
representing the main forms of civilization, needs to draw
accordingly l have voted for most of its operativeupon the wisdomof all cultures,especiallyin regardto areas question. The nature of the Treaty largely conditions the
of internationallaw which arepresently in a developmental successionof Slovakiato this instrument, which constitutes
phase. Among the principle:^ that can be so derived from the substance of the applicable law, and which remains in
these cultures are the prirlciples of trusteeship of earth forcedespite intersecti~tgviolationsby both Parties.

resources, intergenerational rights. protection of flora and The 1977Treaty (including related instrunlents) has the
fauna,,respect for land, maximization of the use of natural threefoldcharacteristic
resources while preserving their regenerative capacity, and - of being a tewitorinl treary,
the principle that developmentand environmenta.1 protection
shoultlgo handin hand. - of being a treaty to which Slovakia validly succeeded,
and
In his opinion, Judge Weeramantry stresses the - of being a treatywhich is still in.forcetoday.
importance of continuous environmentalin~pactassessment
of a project as long as it continues in operation. The duty of In substance,Judge Bedjaoui does not share the opinion
environmental impact asses:smentis not discharged merely of the majority of the Court as to the legal characterization
by resort to such a procedurebefore the commencementof a of Variant C, which he considers to be an offence, the
project. The standards to be applied in such continuous unlawfulness of which affects each of the acts of the
construction of this variant. The construction could be
monitol-ing are the standards prevalent at the time of neither innocent nor neutral; it bore the stamp of the end
assessment and not those in force at the commencementof
the project. purpose of Variant C, which was the diversionof the waters
The third aspect of environmental law referred to is the of the river. It is therefore not possible to separate
questionwhetherprinciples of estoppelwhich mightoperate construction on the one hand and diversion on the other;
VariantC as a wholeis unlawful.
between parties are appropriate in matters such as those On a different subject, Judge Bedjaoui considers that
relating to the environn~eat, which are of concern not
merely to the two Parties, but to a wider circle:.Questions both Parties, Hungary just as much as Slovakia, have
involvingduties of an erga ottrnesnature may not always be breached the 1977Treaty. The situation created by them is
appropriately resolved by nlles of procedure fashioned for characterized by intersecting violatio~ts countering each
inter-partesdisputes.Judge Weeramantrydraws attentionto other. However it is not easy to determinethe links of cause
and effect in each case with certainty. The acts and conduct
this aspectas onewhich will need carefulconsideration. of the Parties sometimesintercut.A deev mutualdistrusthas

Separate oj~inionof Judge Bedjaoui unfortunatelycharacterizedrelations between the parties for
manyyears.
Judge Bedjaoui considers that the majority of the Court On the ground, these intersecting violationsgave rise to
has not sufficiently clarified the question of applicable law a reality which the majority of the Court did not deem it
and that of the nature of the 1977Treaty. On th~:first point, useful to characterize. For Judge Bedjaoui it seemed
he sta~testhat an "e~~olz~tionaiii:rvterpretation"of the 1977
necessary and important to note that these intersecting
Treaty can only be applied if the general rule of violations created two effectivitks which will continue to
interpretationin Article 31of the ViennaConventioi~on the markthe landscapeof the region in question.
Law of Treaties is respected, and that the "defiizitioi~of a Judge Bedjaoui indicated thesign(ficaitceto be nttnched
concept must not be confused with the "law"applicable to to taking account of the effectivitks. In this case, taking
that concept, nor should the:"interpretation"of'a treaty be
confused with its "rc.visiot~~Judge Bedjaoui recommends account of the effectivitksis not tantamountto a negation of
the title. The title does not disappear; itmerely adapts and
that subsequent law be taken into account o:nly in very does so, moreover, through involving the responsibility of
special situations. This applies in the present case. It is the the authorsof these effectivitks,who will be liable for all the
first -tnajor case brought before the Court in which the necessarycompensation.
ecological background is so sensitive that it has moved to
centre stage, threateningto divert attentionfrom treaty law. These effeectivitc?.d,apted as they have been or will be
International opinion would not have understood had the to fit the mould of a new treaty, may have breached and
Court disregardedthe new law,the applicationof which was exceeded the existing law, but the law reins them in and
governsthem again in threeways:
demandedby Hungary.Fortunately,the Courthas been able - these dfectivitks do not kill the Treaty, which survives
to graft the newlawon to the stockof Articles 1.5,19and 20
of the 1977Treaty.Nor was Slovakiaopposedto takingthis them;
law into consideration. However, in applying the so-called - these effectivitks do not go unpunished and entail
princi.pleof the evoh4tionai?interpretutioiiof a treaty in the sanctionsand compensation;
present case, the Court should have clarified the issue more - and above all, these efectivitks will be "recast", or

and s'houldhave recalled that the general rule governing the inserted into the Treaty, whose new content to be
interpretationof a treatyremainsthat setout in Article 31 of negotiatedwill serveas a legitimizingte.xtforthem.
the 1969ViennaConvention. Judge Bedjaoui finally turns to the necessity for the
As for the natttre of tlie 1977 Treaty ancl its related Parties to negotiate agaiil and to do so in good faith. The

instruments. in Judge Bedja.ouiYs view this warranted more renegotiationmustbe seen as a strict obligation,exactlylike
attention from the majority of the Court. It is a crucial the good faith conduct it implies. This obligation flows not The fundainentalpurpose of the 1977Treatywas, in his
only froin the Treaty itself, but also from general
international law as it has developed in the spheres of view, to carry out the construction of the bypass canal and
iiltemationalwatercoursesand the environment. of the power plants at the dams of Gabcikovo and
Nagymaros. Firstly, Hungary's failureto perform its treaty
ob1ig;ationscannot be justified on the basis of the new
international norm of environmental protection. The whole
In his separate opinion, Judge Koroma stated that he Proje:ctand the 1977Treaty, in particular, were undoubtedly
supportedthe Court's findingsthat Hungarywas not entitled
to suspend and subsequently to abandon the works on the sketched out in the 1970s with due consideration for the
environment of the river Danube. There is no proof with
Project for which the Treaty had attributed responsibilityto which to overturn this assumption. Secondly, it was not a
it, and that the Treaty continues to be in force. These violation of the Treaty for Czechoslovakiato proceed to the
findings, in his view, were not only in accordance with the provisionalsolution - Variant C - as the only optionopen
Treaty but with the principle ofpactclsuntsetvanda, one of to it in order tocany out the basic Project in the event of
the foremost principles of international law and indeed an Hungary failing to fulfil its obligation to construct the
integral part of it. In Judge Koroma's view a contrary
Dunslkilitidam.
finding would have suggestedthat at any time a State inight With regard to future negotiations between the Parties
unilaterally repudiate any treaty when it found its obligation on the modalities of the execution of the Judgment, as
to be inconvenient; this, he maintained, would seriously agreed upon in the Special Agreement, Judge Oda suggests
undermine the principle of pacta sunt sewaizda and the
whole treaty relationship. that the JCP be modified in order to includethe work on the
Cunovo dam which enabled the whole Project to be
While he shares the Court's understandingof Hungary's accomplished. As far as the environment is concerned, the
concern about the effects of the Project on its natural Parties should proceed to an assesstnent of the environment
environment, he agreed that the material before the Court of the river Danube in an effort to seek out technological
could notjustify the unilateralrepudiationof the Treaty. solut.ionslimiting or remedying any environmental damage
Judge Koroma, however, disagreed with the finding of caused by Czechoslovakia's construction of the bypass

the Court that Czechoslovakia was not entitled to put canal and Hungary's abandonmentof the Nagymarosdam.
Variant C into operation. He felt that this finding did not The damages and losses suffered by Czechoslovakia
give sufficient weight to the provisions of the Treaty, nor to owing to Hungary's failure to fulfil its Treaty obligations
the financial damage and environmental hann that inust be compensated.However,Hungary's abandonmentof
Czecl~oslovakiawould have incurred and endured had the the Nagymaros dam, though that dam formed a part of the
Project been left uncompleted as Hungary's action dictated.
whole Project, did not cause any practical damage to
He regarded Variant C as a genuine attempt to implement Czechoslovakia. Hungary must bear a part of the cost of
the Treaty so as to realize its aimand objective. construction of the Cunovo dam, as that work gave life to
He also did not agree that the Court appeared to treat the the whole Project. It may well be admitted, however, that
consequences of the Parties' "wrongful conduct" as if they the whole Project (that is, the bypass canal and the
were equivalent. Gabcikovo power plant on that canal) are simply of benefit

to Czechoslovakia and Slovakia, and that Hungary has
Dissenting opinion of Judge Odu nothing to gain from it. This point should be taken into
account when the matter of coinpensation for loss and
Judge Oda has voted against operative paragraph 1 C, damageto be paid byHungaryto Slovakiais considered.
since, in his view, not only the construction, but also the
operation of the Cunovo dam was simply the execution of
the Project as described in the 1977 Treaty between Dissenting opiizion of Judge Rarljeva
Czechoslovakia and Hungary concerning the Gabcikovo- Judge Ranjeva disagreed with the majority of the Court
Nagymaros System of Locks. He considers that the
in that in paragraph 155 1 C the Judgment restricts the
provisionalsolution,Variant C, was the only possibleoption unlawfulnessof Variant C to its being put intooperationand
for fulfilment of the original Project on the river Danube. maintained in service to date. Judge Ranjeva first remarks
Judge Oda does not understand why the Court decided that, that there is a contradiction in terms of logic between
while the construction of Variant C - that is to say, the subparagraphs B and C of this same paragraph of the
Cunovo dam - is lawful, the operation of it is a wrongful operative part. How can the construction of this Variant C
act. be acknowledgedto be lawful at the same time as putting it

Judge Oda made a clear distinctioil between the Joint into operation is declared to be unlawful? The Judgment, in
ContractualPlan (JCP), as the execution of the Project, and his opinion, came to thisoilclusionbecause it restrictedthe
the 1977 Treaty, which underlies the whole Project and significai~ceof the reciprocal wrongs ascribable to Hungary
which had been worked out over a period of several and to Czechoslovakiaand Slovakia to the sole issue of the
decades. The JCP, which is similar to a "partnership" obligation to compensate for the consequences of the
damage; in so doing, the Court resurrected a rule of Roman
contract should have been subject to amendment and
revision, as proved necessary,in a more flexiblemanner. law, the rule of Pomponius. However the Court failed to
examine the significance of these intersecting wrongs onanother point: the causality in the sequenct: of events suspended, in 1989, and later abandoned, its share in the
leading to the situation which is the subject of'the dispute works on the Nagymaros and on part of the Gabcikovo
before the Court. For Judge Ranjeva, the circumstances of Project. He also agrees with the conclusion that
fact against a background of chaotic relations marked by Czechoslovakia was not entitled to put into operation, as
distrust and suspicion not only made it difficult to identify from October 1992, Variant C. a unilateral solution which

the olriginalcause of this situation but above all resulted in implies the appropriation by Czechoslovakia and later
the fact that a wrong committed by one of the Parties Slovakia, essentially for its own use, of 80 to 90 per cent of
triggered off a wrong corrl~nittedby the other. Taking a the waters of the Danube in the Treaty area, and is therefore
position counter to the 1ine.xanalysis of the Court, for the not proportionate. However, he is of the view that when
autlior it is not a matter of several wrongs which merely Czechoslovakia, in November 1991, moved into
succeed each other but of distinct wrongs which gradually construction of Variant C, the point of no return was passed
contributed to creating the situation which isth.esubject of on both sides; at that point in time it was certain that neither

the present dispute. The conclusiondrawn by Judge Ranjeva would Hungary come back to the Treaty nor would
is that the unlawfulness of the Hungarian decision, a Czechoslovakia agree to further delaying the damming of
decision which was undeniably unlawful, was not the cause the Danube. The internationally wrongful act therefore was
but the ground or motive taken into consideration by not confined to the actual damming of the river, but started
Czecl~oslovakiathen by Slovakia in order to justify their in November 1991, more than six months prior to
subsequent conduct. The second conclusion ree.chedby the Hungary's notification of termination. Judge Fleischhauer
author relates to theawfuln.essof Variant C. In his opinion,
thinks, moreover, that Hungary, although it had breached
the distinction made between proceeding to the provisional the Treaty first, had not forfeited its right to react to Variant
solution and putting into operation is in fact an artificial C by termination of the Treaty, because international law
one; it would have been plausible if there had been true does not condone retaliation that goes beyond the limits of
equipollence between these two elements and if one of the proportionality.In situationslike this. the corrective element
elements could not absort) the other. Proceeding to the rather lies in a limitationof the first offender's right to claim
provisional solution was significant only if it was carried redress. As he considers the validity of the Treaty as having

through. Thus the unlawfillness of Variant C!,for Judge lapsed, he has voted against the conclusions of the Court on
Ranjeva, resided not so much in its con:;truction or the consequences of the Judgment inasmuch as they are
comnnissioning,or even in :thediversion of the Danube. but based on the continuing validity of the Treaty (2 A, B, C,
in replacing an international project by a national project; E). In his view the installations on Slovak territory do not
Variant C could not be related to any obligation under the have to be dismantled, but in order to lawfully continue to
1977Treaty once the Court rightly dismissed the idea of an use them Slovakia will have to negotiate with Hungary a
approximate application or of an obligation tolimit damage water-management regime. Hungary does not have to

in treaty law. construct Nagymaros any more, but Slovakia is no longer
committedto thejoint running of the Project.
Disseizting opiizioizofJudge Hercze,gh
Dissentiilg opinion ofJudge Ereshchetii?
The dissenting opinion e:xhaustivelypresents,the case for
the existence of a state ofecessity on the part of Huiigary Judge Vereshchetin takes the view that Czechoslovakia
with regard to the construction of the Nagymxos dam. It was fully entitled in international law to put into operation
holds that not only the putting into operation by from October 1992the "provisional solution" (Variant C) as
Czec'hoslovakia of the "provisional solution", called a countermeasureso far as itspartner in the Treatypersisted

"Variant C", but also the proceeding to this solution in violating its obligations.Therefore,he could not associate
constituted a serious breach of the 1977 Treaty. Hungary himself with paragraph 155 1 C of the Judgment. nor fully
was therefore justified in terminating the Treaty. Judge with paragraph 1552 D.
Herc:zegh consequently voted against the points of the According to the Court's jurisprudence, established
operative part whichrefer expressly to the Treaty, but voted wrongful actsjustify "proportionate countermeasures on the
for mutual compensation by Slovakia and by Hungary for part of the State which ha[s] been the victim of these
the damage each sustained on account of the ccrnstructionof
acts ...(MilitaryandPamiililitruyActivities iirand against
the system of locks formingthe subjectof the dispute. Nicuruguu (Nicr~ruguav. Uirited States of Americu),
Judgment,I.C.J. Reports 1986, p. 127, para. 249). In the
Disseiztiitg opiilioi;!of Judge Flei~chh~auer view of Judge Vereshchetin, all the basic conditions for a
countermeasureto be lawfulwere met when Czechoslovakia
Judge Fleischliauer dissents on the Couit's central put Variant C into operation in October 1992. These
finding that Hungary's notification of 19 May 1992 of the conditions include: (1) the presence of a prior illicit act,
termination of the 1977 Treaty did not have the effect of
terminating it, as the notification is found to have been committed by the State at which the countermeasure is
premature and as Hungary is said to have forfeited its right targeted; (2) the necessity of the countermeasure;and (3)its
proportionalityin the circunistancesof the case.
to terminate by its own earlier violation of the Treaty. The Recognizing that the test of proportionality is very
Judge shares the finding of the Court that Hungary has important in the regiine of countermeasures, Judge
violated its obligations under the 1977 Treaty when itVereshchetin believes the Court should have assessed and In my opinion, paragraph 2 A, of the operative part of
compared separately: (l) the economic and financial effects the Judgment should not have been included, because the
of the breach as against tlie economic and financial effects succession of Slovakia to the 1977 Treaty was neither a

of the countermeasure; (3) the environinental effects of the question submitted to the Court in the Special Agreement,
breach as against the environtnental effects of the nor is it a legal consequence arising out of thedccision of
countermeasure; and (3) the effects of the breach on the the questions submitted by the Parties in its Article 2,
exercise of the right to use commonly shared water paragraph 1. Furthermore, the answer of the Court is
resources as against the effects of the counternleasure on the inconiplete, since nothing is said in respect to the "related
exercise of this right. instruments" to tlie 1977 Treaty; and it does not take into
consideration the position adopted by the dissentingjudges
Judge Vereshchetin inakes his assessment of those who rnaintaiiiedthat the 1977Treaty was no longerin force.
effects and observes in conclusion that even assuming that
Czechoslovakia, as a matter of equity, should have
discharged more water than it actually did into the old river Disseriting opirtion of Jzrdgead hoc Sk~lbisze~vslii
bed, this assumption would have related to only one of the
many aspects of the proportionality of the countermeasure. While agreeing with the Court in all its other holdings,
which could not in itself warrant the general conclusion of Judge ad hoc Skubiszewski is unable to concur in the broad
the Court that Czechoslovakia was not entitled to put finding that Czechoslovakia was not entitled to put Variant
C into operation from October 1992 (Judgment, para. 155,
Variant C into operation from October 1992. point 1C). The finding is too general. In his view tlie Court
shoultl have distinguished between, on the one hand,
Disserltirlg opinion of Judge Parra-Amnguren
Czect~oslovakia'sright to take steps to execute and operate
My vote against paragraph 1 C of the operative part of certain works on her territory and, on the other, her
the Judgment is the consequence of the recognition that respollsibility (and, subsequently, that of Slovakia) towarifs
Hungary was not entitled to suspend and subsequently Hungary resulting from the diversion of most of the waters
abandon, in 1989, the works which were its responsibility, of the Danube into Czechoslovak territory, especially in the
in accordance with the Treaty of 16 September 1977 and period preceding the conclusion of the Hungarian-Slovak
Agreement of 19April 1995.
related instruments. Because of that the position of
Czechoslovakia was extrelnely difficult, not only for the The withdrawal of Hungary from the Project left
huge sums invested so far but also for the environmental Czechoslovakia with the legal possibility of doing on her
consequences of leaving unfinished and useless the territory what she was allowed to do by general law on
constructions already in place, almost complete in some international rivers. As a whole, the "provisional solution"
sections of the Gabcikovo Project. Faced with that situation, was and is lawhl. That evaluation is not changed by one
in my opinion, Czechoslovakia was entitled to take all element of it, i.e., sharing of the waters of the Danube,

necessary action and for that reason the construction and which called for redress and remedy. Having recognized the
putting into operation of the "provisional solution" (Variant serious problems with which Czechoslovakia was
C) cannot be considered an internationally wrongful act. confronted as a result of Hungary's action, the Court should
Therefore, in principle, Slovakia shall not compensate have applied equity as part of international law. It would
Hungary on the account of the construction and putting into then arrive at aholding that would have given more nuance
operation of "the provisional solution" (Variant C) and its to its decision.
maintenance in service by Slovakia,unless a manifest abuse Notwithstanding the Parties' inutual legal claims for
of rights on its part is clearly evidenced.
compensation much speaks in favour of a "zero option"
(Judgment, para. 153). That option should facilitate the
settlement of the dispute.