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I. Recent Cases: Case Concerning the Gabcïkovo-Nagymaros Project (Hungary/Solvakia)1

Published online by Cambridge University Press:  17 January 2008

Malcolm D. Evans  and
Phoebe N. Okowa
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Extract

The dispute between Hungary and Slovakia concerning the Gabcïkovo-Nagymaros project could easily be described as one of the most important cases to come before the International Court of Justice (“the Court”) in recent years. The case raised a number of very important questions of international law, many of which had received no previous consideration in the Court's jurisprudence. In the first place, the Court was asked by both parties for orders of specific performance. Although the competence of the Court to issue orders of specific performance or injunctive relief had been the subject matter of much discussion in the academic literature, the issue had never before been raised squarely before the Court. Second, this was the first dispute in which the Court was directly asked to consider the consequences of the legal developments in the field of environmental protection. Despite the proliferation of treaty developments in that field, the status of many of those norms remains problematic Third, although the relationship between the law of treaties and the law of State responsibility has generated much general interest, the Court had not in the past been presented with an opportunity to pronounce on some of these issues. Finally, this is also one of the few cases in which the Court has been asked to consider the legal implications of State succession outside the context of decolonisation.

Type
International Court of Justice: Recent Cases
Information
International & Comparative Law Quarterly , Volume 47 , Issue 3 , July 1998 , pp. 688 - 697
Copyright
Copyright © British Institute of International and Comparative Law 1998

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References

2. For doubts as to the competence of the ICJ to issue orders of this nature in the absence of a specific request in a compromis agreement, see Gray, , Judicial Remedies in International Law (1987), p.95Google Scholar; see also Birnie, P. W. and Boyle, A. E., International Law and the Environment (1992), pp.150–151.Google Scholar

3. It must be accepted, however, that environmental arguments also featured in New Zealand pleadings in the case brought in 1995 against France. See Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, order of 22 Sept. 1995, I.C.J. Rep. 1995, 228Google Scholar; see Craven, M. C. R. (1996) 45 I.C.L.Q. 725.Google Scholar

4. See e.g. Bowett, D. W., “Treaties and State Responsibility”, in Le Droit International au Service de la paix de la Justice et de Développement (1991), p.373Google Scholar; Sinclair, I., The Vienna Convention on the Law of Treaties (1984)Google Scholar; Reuter, P., Introduction to the Law of Treaties (1989)Google Scholar; Rosenne, S., Breach of Treaty (1985), p.72Google Scholar; Rainbow Warrior (France v. New Zealand) 82 I.L.R. 499, 500.Google Scholar

5. Although the issue was also the subject matter of consideration in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (preliminary objections, judgment) I.C.J. Rep. 1996, 595Google Scholar; for comment see Gray, C. (1997) 46 I.C.L.Q. 688.Google Scholar

6. Case Concerning the Gabcïkovo-Nagymaros Project (Hungary/Slovakia), Memorial of the Republic of Hungary, Vol.1, 2 05 1994, chap.1.Google Scholar

7. See Preamble to the 1977 Treaty on the Construction and Joint Operation of the Gabcïkovo-Nagymaros Barrage System, Budapest, 16 Sept. 1977 (1993) 32 I.L.M. 1260.Google Scholar

8. See Gabcïkovo-Nagymaros Project (Hungary/Slovakia), Memorial submitted by the Slovak Republic. Vol.I, 2 05 1994, p.35Google Scholar; Memorial of the Republic of Hungary, supra n.6, at p.16.Google Scholar

9. Supra n.7.

10. Idem, Art.15.

11. Idem, Art.19.

12. Idem, Art.20.

13. Hungary Memorial, supra n.6, at chap.7.

14. Slovakia Memorial, supra n.8, at chap.8.

15. Special Agreement between Hungary and the Slovak Republic for Submission to the ICJ of the differences between them (1993) 32 I.L.M. 1294.Google Scholar

16. Supra n.1, at para.46.

17. See Legal Consequences for Stales of the Continued Presence of South Africa in Nambia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), advisory opinion, I.C.J. Rep. 1971, 47Google Scholar and Fisheries Jurisdiction (United Kingdom v. Iceland), Jurisdiction of the Court, judgment, I.C.J. Rep. 1973, 18Google Scholar; see also Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, advisory opinion, I.C.J. Rep. 1980, 95–96.Google Scholar

18. Supra n.1, at para.47.

19. Rainbow Warrior, supra n.4, at pp.547–551.Google Scholar

20. See Bowett, , op. cit. supra n.4, at p.140Google Scholar; New Zealand's argument to the same effect was also explicitly rejected by the arbitral tribunal in Rainbow Warrior, idem, pp.550–551.

21. Sinclair, , op. cit supra n.4, at p.165.Google Scholar

22. Hungary Memorial supra n.6, at pp.296–321.Google Scholar

23. Supra n.1, at para.103.

24. See Ago, R., “Eighth Report on State Responsibility” (1979) II(1) Y.B.I.L.C 3–67, especially at para. 106.Google Scholar

25. Supra n.1, at para.104.

26. Ibid.

27. Idem, para.78.

28. Idem, para.108.

29. Hungary Memorial, supra n.6, at chap.7.

30. Art.31(3)(c) provides that there shall be taken into account, together with the context, any relevant rules of international law applicable in the relations between the parties.

31. Slovakia Memorial supra n.8 at para.8, 112.

32. Okowa, P. N., “Procedural Obligations in International Environmental Agreements” (1996) 67 B.Y.L.L. 275. But see contra, Birnie and Boyle, supra, n.2, Ch.3.Google Scholar

33. The extensive consideration of the environmental arguments by Judge Weeramantry in his separate opinion does not shed any further light on the customary law status of these norms; judgment of 25 Sept 1997, supra n.1.

34. Hungary Memorial, supra n.6, at chap.5.

35. Slovakia Memorial, supra n.8, at para.8, 112.

36. Supra n.1, at para.54.

37. See Okowa, P. N., “Environmental Dispute Settlement: Some Reflections on Recent Developments”, in Evans, op. cit. supra n.1.Google Scholar

38. Vienna Convention on Succession of States in Respect of Treaties (1978) 17 I.L.M. 1488.Google Scholar

39. Supra n.1, at para.123.

40. Brownlie, , Principles of Public International Law (1990)Google Scholar; Brierly, , Law of Nations (6th edn, 1954) p.154Google Scholar; Shaw, , International Law (4th edn, 1997), p.685.Google Scholar

41. Supra n.1, at paras.140, 141, 143.

42. Idem, para.153.