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The Danube: Damned or Dammed? The Dispute Between Hungary and Slovakia Concerning the Gabčíkovo-Nagymaros Project.

Published online by Cambridge University Press:  21 July 2009

Erik Hoenderkamp
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Abstract

This article deals with the legal aspects of the dispute between Hungary and Slovakia concerning a joint project of locks and power-stations, which had to be constructed in the Danube at Gabc ikovo and Nagymaros. Rules of treaty-law, environ-mental protection, good faith, reprisal and contributory negligence will be applied to assess whether Hungary was entitled to terminate the treaty and whether Slovakia could lawfully construct a provisional solution. Furthermore the significance of the case and its submission to the International Court of Justice is addressed.

Type
Student Contributions
Information
Leiden Journal of International Law , Volume 8 , Issue 2 , Autumn 1995 , pp. 287 - 309
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1995

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References

1. In almost all documents published by Slovakia, the prevention of flood disasters is mentioned, but this aim is not stated in the final Gabcikovo-Nagymaros Treaty.

2. Treaty Between the Hungarian People's Republic and the Czechoslovak Socialist Republic Concerning the Construction and Operation of the Gabčíkovo-Nagymaros System of Locks, signed in Budapest, 16 September 1977 (hereinafter the Gabčíkovo-Nagymaros Treaty), reproduced in 32ILM 1247 (1993).

3. Id., Preamble.

4. Id., Art. 1.

5. Already in 1981, the Communist Hungarian government had ordered a re-examination of the project. The researchers suggested postponement of the construction, pending more detailed study of the possible ecological consequences. Declaration of the Government of the Republic of Hungary on the Termination of the Gabcikovo-Nagymaros Treaty (hereinafter Declaration of Termination), reproduced in 32 ILM 1260–1290, at 1264 (1993).

6. In 1985, 10,000 people signed a petition; in September 1988, 30,000 protestors assembled in Budapest; and in February 1989, 750,000 people signed another petition. Based on various publications by the international press (e.g. NRC/Handelsblad, Radio Free Europe Research Bulletin, and Neue Zürcher Zeitung).

7. Hungarian Parlement, Proceedings of the 30th meeting, 7 October 1988, at 2462–2464.

8. The originally foreseen mode of operation was a peak load mode, see 1993 Gabčíkovo 10.

9. On 13 May 1989. See Declaration of Termination, supra note 5, at 1265–1267.

10. Parliamentary Res. No. 24/1989 (XI.10), of 31 October 1989.

11. Political Programme of the Hungarian Government of 22 May 1990, as quoted in the Declaration of Termination, supra note 5, at 1269.

12. L.Krajhanzl, Genese des Streits von Gabčíkovo-Nagymaros in der Rechtsoptik,1993 Gabčíkovo. See also Declaration of Termination, supra note 5, at 1271.

13. Declaration of Termination, supra note 5, at 1260.

14. Agreement of 28 October 1992, reproduced in 32 ILM 1291 (1993).

15. Id., Art.4.

16. On 1 January 1993, Czechoslovakia was split up into two separate states. As far as the Gabčíkovo-Nagymaros Project is concerned, Slovakia was marked as the sole successor state.Preamble of the Special Agreement Between the Republic of Hungary and the Slovak Republic for Submission to the International Court of Justice of the Differences Between Them Concerning the Gabčíkovo-Nagymaros Project (hereinafter Agreement for Submission), reproduced in 32 ILM 1295 (1993).

17. Id., at 1293.

18. Fifth consideration of the Preamble and Art. 2 of the Agreement for Submission. Art. 2 reads as follows: “(1) The Court is requested to decide on the basis of the Treatyand rules and principles of international law, as well as such other Treaties as the Court may find applicable,(a) whether the Republic of Hungary was entitled to suspend and subsequently abandon, in 1989, the works on the Nagymaros Project and on the part of the Gabčíkovo Project for which the Treaty attributed responsibility to the Republic of Hungary; (b) whether the Czech and Slovak Federal Republic was entitled to proceed, in November 1991, to the ‘provisional solution’ and to put into operation from October 1992 this system […’; (c) what are the legal effects of the notification, on May 19,1992, of the termination of the Treaty by the Republic of Hungary. (2) The Court is also requested to determine the legal consequences, including the rights and obligations for the Parties, arising from its Judgment on the questions in paragraph (1) of this Article.”

19. 1969 Vienna Convention on the Law of Treaties (hereinafter 1969 Vienna Convention), A/CONF.39/27 (1969).

20. See, for Art. 62, Section 3.3., infra; and for Art. 60, Section 3.4., infra.

21. Preamble and Chapter 1 of the Gabčíkovo-Nagymaros Treaty.

22. Id., Arts. 15,19, and 20.

23. Hungary suspended its work on 13 May 1989. It informed Czechoslovakia on 24 May 1989. See Declaration of Termination, supra note 5, at 1265.

24. SeePreamble and Art. 261969 Vienna Convention; Preamble and An. 2(2) UN Charter; Report ofthe International Law Commission (ILC), 17th and 18th session, 1966–11169; case concerning Rights of Nationals of the United States of America in Morocco (France v. United States of America), 1952ICJ Rep. 176; and case of Minority Schools in Albania, 1935 PCIJ (Ser. A/B), No. 65, at 20.

25. Art. 26 1969 Vienna Convention: “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith”.

26. The proposal to amend the Treaty was communicated on 30 November 1989, the contracts had been terminated earlier that month. See Declaration of Termination, supra note 5, at 1268.

27. Id., at 1261.

28. Id., enumerated in Chapter 3, at 1268–1289.

29. 2 Yearbook of International Law, at 33 (1988) (emphasis added).

30. Ago, R., Special Rapporteurof the ILC, in his First Report on State Responsibility, 1969–1911 YILC 126–127.Google Scholar

31. Eighth Report on State Responsibility, 1980–1911 YILC 30 (para. 40).

32. Oscar Chinn case (United Kingdom of Great Britain and Nothern Ireland v. Belgium), 1934 PCIJ (Ser. A/B) No. 63, at 63–90.

33. Separate Opinion Judge M. Anzilotti, id., at 112–114.

34. Case concerning Rights of Nationals of the United States of America in Morocco, supra note 24, at 176.

35. Id. See also Report of the International Law Commission on the Work of its Thirty-second Session, 1980–II YILC 42 (para. 20).

36. S. S. Wimbledon case (France, Italy, Japan v. Germany), 1923 PCIJ (Ser. A) No. 1, at 1–34.

37. Report of the ILC, supra note 35, at 33 (emphasis added).

38. Id., at 29.

39. See M.N. Shaw, International Law 502 (1991); and 1980–11 YILC 28.

40. Declaration of Termination, supra note 5, at 1273–1281. See also World Wildlife Fund Vienna/Rastatt, 13 December 1993; and Equipe Cousteau/EBRD, Final Report of March 1993, ordered by the European Bank for Reconstruction and Development (EBRD).

41. Art. 33(b) ILC Draft Articles on State Responsibility.

42. See also European Parliament (EU) Resolutions B–1414,1422,1458, and 1490/92. At the time of the termination Slovakia had finished 90% of the costly constructions at GaWikovo. See Krajhanzl, supra note 12, at 32.

43. Declaration of Termination, supra note 5, at 1283.

44. Russian Indemnity case, XIRIAA 421–447 (1912).

45. See also I. Brownlie, Principles of International Law 466 (1991), where he concludes that force majeure only applies to acts of war or sometimes to harm caused by insurrection and civil war.

46. Russian Indemnity case, supra note 44, at 443 (author's translation).

47. Declaration of Termination, supra note 5, at 1282; and Berrisch, G.M., The Danube Dispute Under International Law, 46 Aust. J. Publ. Intl. Law 241 (1994).Google Scholar

48. Art. 4 1969 Vienna Convention.

49. See G. Fitzmaurice, First Report on the Law of Treaties, 1956–11 YILC 106–107. See alsoDeclaration of Termination, supra note 5, at 1282.

50. Emphasis added.

51. Declaration of Termination, supra note 5, at 1284.

52. Fisheries Jurisdiction case (Federal Republic of Germany v. Iceland), Judgment, 1973 ICJ Rep.1–23. See also Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ Rep. 16.

53. See Fisheries Jurisdiction case, supra note 52, at 18.

54. During the drafting of the 1969 Vienna Convention, both Czechoslovakia and Hungary stated that the principle of change of circumstances had to be applied restrictively. See 1966–11YILC 41.

55. See Section 3, supra.

56. This in spite of the fact that at the timeof the conclusion there was no strict international regime on the prevention of transboundary pollution. van Hoogstraten, S. & Lammers, J.G.,Volkenrechtelijke en Nationaalrechtelijke Aspecten van Grensoverschrijdende Vervuiling, 1978 Nederlandse Vereniging van Internationaal Recht 8.Google Scholar

57. 1963–11 YILC 204. See also Brownlie, supra note 45, at 618; M.B. Akehurst, Encyclopedia of International Law 507 (1992); and A. Verdross & B. Simma, Universelles Völkerrecht: Theorie und Praxis (1984).

58. Case of the Diversion of Water From the Meuse (Netherlands v. Belgium), 1937 PCIJ (Ser.A/B), No. 70, at 1–37.

59. Id., at 50.

60. Tachna-Arica Arbitration, IIRIAA 921–958 (1925).

61. Id., at 943–944.

62. See An. 31 1969 Vienna Convention.

63. Which are supported by organisations such as the World Wildlife Fund, Equipe Cousteau/EBRD, and the Slovak Rivers Network/Slovak Union of Nature and Landscape Protectors.

64. Art. 1 Gabcikovo-Nagymaros Treaty, supra note 2.

65. See Krajhanzl, supra note 12, at 33.

66. UN Doc. A/CONF.48/14/Rev. 1 (1972) (hereinafter Stockholm Declaration).

67. UN Doc. A/37/51, at 17 (1982).

68. See also P. Birnie & A. Boyle, International Law and the Environment 46 and 427, 2nd ed. (1993).

69. According to the drafters themselves. See UN Doc. A/539 (1981).

70. Birnie & Boyle, supra note 68, at 432.

71. It has been included in many subsequent documents. Examples are the European Union 5th Action Programme on Environment and Sustainable Development (EU Doc. C 138/1 (1993));the UN Rio Declaration on Environment and Development (Principle 1), UN Doc.A/CONF.151/26(1992); and the 1992 Convention on Biological Diversity, UN Doc. UNEP/Bio.Div/N7–INC.5/4.C.N.393 (1992). For an elaboration of the so-called soft-law approach, SeeBirnie & Boyle, supra note 68, at 26–30.

72. Krajhanzl, supra note 12, at 33.

73. Id., at 32.

74. But See, for the opposite opinion, Berrish, supra note 47, at 275.

75. Id., at 33.

76. See Section 3.4., supra.

77. Including the 1920 Triannon Peace Treaty (Versailles), 1921 LNTS 188; the 1946 Treaty of Peace with Hungary, 1949 UNTS168; and the 1956 Czechoslovak-Hungarian Treaty Concerning the Regime of State Frontiers, 1957 UNTS 150.

78. I.A. Shearer, Starke's International Law 471,11th ed. (1994); and Shaw, supra note 39, at 689.

79. Shaw, supra note 39, at 690; and Shearer, supra note 78, at 472.

80. Naulilaa case, II RIAA 1013–1033 (1928).

81. Id.

82. Case concerning the Air Services Agreement (United States v. Canada), 18 RIAA 415–447(1978); and An. 2(3) UN Charter.

83. Case concerning the Air Services Agreement, supra note 82, at 445.

84. Which depends on the actual level of damage caused, See Section 4.1., supra.

85. This is not certain. There are reports which suggest that the operation of the provisional solution has a beneficial impact as well. See V. van het Riet, Nieuwe Strategie Tegen Donau Dammen, Spring 1995 Milieukontakt 10–13.

86. The notion of compensatio culpae (contributory negligence) is well-known in many national law systems.

87. UN Convention on the Law of the Sea (UNCLOS III). UN Doc. A/Conf.62/122 (1982), reproduced in 21 ILM 12–61 (1982). See also Arts. 106, 139, 232, and 263.

88. Corfu Channel case (UK v. Albania), Merits, 1949 ICJ Rep. 4.

89. Chorzow Factory case, 1928 PCIJ (Ser. A) No. 17, at 1–46.

90. Id., at 53.

91. Christian Damson v. Germany, VII RIAA 184 (1925).

92. Davis case, IX RIAA 460–463 (1904).

93. See also Brownlie, supra note 45, at 465.

94. See also G.H. Blackworth, V Digest of International Law 715 (1965).

95. Chorzow Factory case, supra note 89, at 28.

96. Island of Las Palmas case, IIRIAA 829–871 (1928).

97. Trail Smelter Arbitration, III RIAA 1905–1981 (1941).

98. Id., at 1965.

99. See Stockholm Declaration, supra note 66, Principle 21. It is widely accepted as customary international law. See Birnie & Boyle, supra note 68, at 90; and Shaw, supra note 39, at 534.

100. For the text of the Draft Articles and the ILC's Commentaries on them, See The Law of Non-Navigational Uses of International Watercourses, Extracts From the Report of the International Law Commission, 24 EPL 335 etseq. (1994).

101. IcL, Art. b.

102. River Oder case, 1929 PCIJ (Ser. A) No. 23, at 27.

103. See case of the Diversion of Water From the Meuse, supra note 58.

104. Lake Lanoux Arbritration (France v. Spain), 24 ILR 101 (1957).

105. See also Art. 5 of the H.C Draft Articles on International Watercourses, supra note 100.

106. See treaties cited in note 77, supra.

107. See Nuclear Tests case (Australia v. France), 1974ICJ Rep. 253. In this case, Australia asked the Court to order France not to carry out further nuclear tests in the atmosphere, since it considered this to be contrary to international law. At the time of the proceedings France made several declarations in which it indicated its commitment to stop further testing. Therefore, the ICJ ruled that the case was without a subject (at 271) and halted the proceedings. The response of especially the Government of New Zealand to the recently planned French nuclear tests in the subsoil of the pacific island of Mururoa indicates that the issue of the admissibility of nuclear testing has still not been settled.