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The First Site Visit of the International Court of Justice in Fulfillment of its Judicial Function

Published online by Cambridge University Press:  27 February 2017

Peter Tomka  and
Samuel S. Wordsworth
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Extract

On April 1-4, 1997, the International Court of Justice visited the sites of the Gabčíkovo-Nagymaros Project in Slovakia and Hungary. This was the first site visit that the Court has undertaken in fulfillment of its judicial function and was therefore an occasion of particular interest to international jurists.

Type
Current Developments
Information
American Journal of International Law , Volume 92 , Issue 1 , January 1998 , pp. 133 - 140
Copyright
Copyright © American Society of International Law 1998

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References

1 Gabčíkovo-Nagymaros Project (Hung./Slovk.). The case was referred to the Court in 1993 by agreement between the parties. It concerned a treaty concluded in 1977 for the construction of a major hydroelectric dam project on the Danube at Gabčíkovo in Slovakia and Nagymaros in Hungary. The Court was asked to determine whether Hungary was entitled to suspend and subsequently abandon its part of the project; whether the then Czech and Slovak Federal Republic was entitled to proceed with a “provisional solution” involving damming die river at another location; and the legal effects of Hungary’s notification of the termination of the treaty. The parties also requested drat die Court determine the legal consequences of its judgment on die above questions. The Judgment was rendered on September 25, 1997.

2 A detailed memorandum on this topic was prepared by Professor Alain Pellet, Counsel for Slovakia, in early 1994, just six months after the Court was formally seized of the case.

3 Special Agreement for Submission to the International Court of Justice of the Differences between Them concerning the Gabčíkovo-Nagymaros Project, Apr. 7, 1993, Hung.-Slovk., 32 ILM 1293 (1993).

4 Diversion of Water from the Meuse (Neth. v. Belg.), 1937 PCIJ (ser. A/B) No. 70, at 4 (June 28).

5 Id. at 9.

6 Geneviève Guyomar, Commentaire du Règlement de la Cour Internationale de Justice 425 (1983). Article 50 reads: “The Court may, at any time, entrust any individual, body, bureau, commission, or other organization that it may select, with the task of carrying out an enquiry or giving an expert opinion.”

7 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 40 (June 27). In that case, die Court considered that an inquiry under Article 50 would be neither practical nor desirable, not least because the body that would be formed might have to visit the respondent state (the United States), which had refused to appear before it, or third-party states. No such issue arose in the present case, all the relevant sites being in either Slovakia or Hungary.

8 Article 44 reads as follows:

1. For the service of all notices upon persons other than the agents, counsel, and advocates, the Court shall apply direct to the government of the state upon whose territory the notice has to be served.

2. The same provision shall apply whenever steps are to be taken to procure evidence on die spot.

9 Corfu Channel case, 1948 ICJ Rep. 124 (Order of Dec. 17).

10 South West Africa, 1965 ICJ Rep. 9, 10 (Order of Nov. 29).

11 Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), 1992 ICJ Rep. 351, 361–62 (Sept. 11).

12 Letter from Dr. Peter Tomka, Agent of Slovakia, to Eduardo Valencia-Ospina, Registrar of the Court (June 16, 1995).

13 Letter from Dr. György Szénási, Agent of Hungary, to Eduardo Valencia-Ospina (June 28, 1995).

14 Diversion of Water from the Meuse (Neth. v. Belg.), 1937 PCIJ (ser. A/B) No. 70, at 9; South West Africa, 1965 ICJ Rep. at 9–10, and Guyomar, supra note 6, at 426; Land, Island and Maritime Frontier Dispute, 1992 ICJ Rep. at 361–62.

15 South West Africa, 1965 ICJ Rep. at 9–10. Both applicants objected to the proposed visits.

16 1949 ICJ Pleadings (5 Corfu Channel) 252–54 (Jan. 12–14, 1949); Guyomar, supra note 6, at 433–39.

17 Interestingly, the Protocol did not reflect the earlier wording of the invitation of the Slovak Agent, which proposed a visit “soit de la Cour dans son ensemble, soit de certains de ses membres.” Letter from Dr. Peter Tomka, supra note 12. The proposal in the Protocol was simply made “à la Cour de procéder à une descente sur les lieux.” The preference of the Hungarian Agent was for a visit by the full Court.

18 The exact wording of die relevant provision read: “Les explications données par les représentants des Parties seront de nature purement technique sans que les questions juridiques puissent être discutées.”

19 The Slovak Agent had wished to suggest suitable periods for a site visit in the Protocol—May/June or September—when the weather would be at its best.

20 Gabčíkovo-Nagymaros Project (Hung./Slovk.), 1997 ICJ Rep. 3, 5 (Order of Feb. 5).

21 Diversion of Water from the Meuse (Neth. v. Belg.), 1937 PCIJ (ser. E) No. 13, at 136–37.

22 The general conviviality of the visit was aided by the presence of many of the spouses of the judges. During the actual visits to the sites, the spouses were not present.

23 Fortunately, the weather during the site visit was unusually good, and it was not necessary for the judges to don Wellington boots, which would otherwise have been necessary.

* Peter Tomka is Ambassador and Legal Adviser of the Ministry for Foreign Affairs of Slovakia, and acted as its Agent in the Gabčíkovo-Nagymaros Project case. Samuel S. Wordsworth is a Barrister currently in pupilage at Essex Court Chambers, London; he served as Counsel and Advocate for Slovakia in the case. As a matter of courtesy, the authors sent the text of this report to the Agent of Hungary, Ambassador György Szénási, before its publication.