CASE COMMENTARY ON GABCIKOVO-NAGYMAROS PROJECT CASE

INTRODUCTION

The Case of Gabcikovo-Nagymaros Project concerns two nations Hungary and Slovakia; they
signed a treaty on 16th September 1977(also known as Budapest Treaty). According to the 1977
treaty two hydroelectric power plants with a total output of 878 megawatts were to be built and
dispute arose between Hungary and Slovakia over the construction of a of locks on the Danube,
which for some 140 kilometers forms the boundary of the two States.

There were three main reasons behind this treaty firstly, it was envisioned to prevent catastrophic
floods with the assistance of the system of locks and reservoirs. Furthermore, it is said that the
facility could help the navigability of the Danube, helping the interconnections between inland
navigations as part of the Rhine-Main-Danube Canal system. And, last but not least, the
hydroelectric power-plants near Gabčikovo and Nagymaros could produce clean electricity, and
the electricity which would have been produced was to be distributed equally.

BACKGROUND

According to the plans, the Danube was to have been diverted between river near Dunakiliti by a
dam and a relief sluice from the original riverbed into an artificial canal on Czechoslovakian
territory. Next to Gabcíkovo hydroelectric power plant with eight turbines and a capacity of 720
megawatts (MW )was to be erected. Near Nagymaros the treaty prescribed a second, smaller
power plant with an output of 158 MW, which was primarily to balance the fluctuation of the
water line. This would have been necessary, because the plant at Gabcíkovo was conceived as a
peak-load electricity generation plant and therefore would have caused uneven water flow.

However, due to economic hardship, Hungary pressed for temporary abandonment of the barrage
project in 1981. In October 1983 in Prague, the two parties came to an agreement on slowing
down work on the project and postponing the inauguration of the power
plants.Simultaneously,Hungarian experts expressed their doubts about the project because they
believed it might have detrimental effects on the environment.

In early 1984, the “Danube Circle” was founded, a movement which acted
on a semi-legal basis. It accumulated, summarized and intensified the criticism, in particular, of
the Hungarian power plant near Nagymaros and gained the growing support of the public.
Growing waves of protest finally led the Hungarian government to suspend work at Nagymaros
in 1989. Because bilateral negotiations did not lead to a solution between the two states,
Czechoslovakia decided to implement a new arrangement which redirected the Danube into a
new canal towards Gabcíkovo ("Variant C")

Variant C- It reduced the reservoir, i.e. the Czechoslovakian party intended to build the water
works solely on her territory. The proposal took into consideration the Hungarian approach to the
construction, which is postponing the construction in Hungary. The proposal suggested splitting
the shared reservoir into two with a dam in Czechoslovakia
.
All in all, Variant “C” was seen as “temporary” due to the fact that it was technically possible to
build a dam in Hungary and flood the Czechoslovakian one in order to finish the system of locks
according to the Budapest Treaty.

The construction of proposal “C” started in 1991 on a smaller scale. But the Czechoslovakian
proposals were forwarded to Hungary only in 1992. The diversion of the River Danube started in
the same year. The power-plant started its operation in 1996.4
As it is mentioned above, Hungary abandoned the site in 1989. Then, in 1992, Hungary tried to
terminate the Budapest Treaty based on her Memorandum. And Hungary submitted her claim to
the International Court of Justice (hereinafter: ICJ) because of the Czechoslovakian diversion of
the Danube.

Two days after that, Czechoslovakia and Hungary started consultations involving the European
Commission. The results of the negotiations manifested in the so-called London Protocol.
Firstly, the parties decided to submit mutual and joint claims to the ICJ to settle the dispute. The
judgement was considered to be obligatory

JUDGEMENT BY ICJ

With the submission of the case to the ICJ, the political process of internal negotiations was
replaced by an external legal procedure. The lawsuit aimed at certain selective contentious issues
and gave answers to a catalogue of questions which could bedealt with in the legal framework.
On 25September 1997, the ICJ pronounced judgment on the following issues:

1. The Legality of Suspending and Subsequently Abandoning, in 1989, the Work on the
Gabcíkovo-Nagymaros Project-

Hungary’s suspension of work on the project was illegal, because the 1977 treaty described the
project as “single and indivisible”. Hungary's argument that there had been a state of emergency
in 1989, which would have permitted it to suspend and abandon work on the project, was
rejected by the Court. Furthermore, even if there had been a state of emergency, it would not
have justified the fact that Hungary had not fulfilled the commitments of the treaty.

2. The Legality and Implementation of the “Temporary Solution” (Variant C) by

Slovakia-

Implementing variant C was pronounced illegal. The ICJ substantiated this argument by again
referring to the project's “single and indivisible” character.
Variant C was in direct violation of the “joint ownership” principle of the project's essential
pillars. The ICJ ejected the Slovakian argument that it had followed the principle of
“approximate application” because Variant C did predetermine the project's final status.

3. The Legal Effects of the Termination of the Treaty by the Republic of Hungary-

The termination was illegal, and therefore the 1977 treaty is still in effect. The ICJ rejected all
the reasons Hungary gave for terminating the treaty such as a “state of emergency”,
“impossibility of performing duties”, a “fundamental change of circumstances”, a “material
breach of the treaty by Czechoslovakia” and the “development of new norms in international
environmental law”

4. The Legal Effects of the ICJ Ruling for the Parties-

The two parties will have to seek an agreement on the modalities of the execution of the ruling.
They will have to consider the treaty as being a joint investment project for (1) the production of
energy, (2) the improvement of the navigability of the Danube, (3) flood control, (4) regulation
of ice removal and (5) the protection of the natural environment. A key issue here is the
protection of the environment; this explicitly includes a "satisfactory solution" for the volume of
water to be released into the old riverbed. If the parties fail to come to an agreement within six
months either side can request an additional judgment.

LEGAL CONSEQUENCES OF THE JUDGEMENT

There are three main groups of issues which have to be explained in the following: the issue of
legal succession, other legal consequences of the Judgement and the legal consequences of the
unlawful acts committed by the parties (reparations).

A. ISSUE OF LEGAL SUCCESSION.

After the split-up of former Czechoslovakia, several questions remained concerning legal
succession. In the observed dispute, the core issue was whether Slovakia is a successor of
Czechoslovakia in connection with the Budapest Treaty. The problem was more complex than it
sounds at first glance. Hungary argued that there is not any rule in international public law which
ensures the automatic legal succession. Hungary had never recognized Slovakia as legal
successor of the Budapest Treaty. So the Hungarian consent was missing.
Refining the first argument, Hungary implied that there could be certain rules of automatic
succession in case of separation. But she did not sign and ratify them (certainly not until the
Judgement). Furthermore, Hungary denied that the Budapest Treaty established rights and
obligations to water management on the border of the two countries. She stated that the Budapest
Treaty did not affect the border line. And she denied the territorial feature of the Budapest
Treaty.
Slovakia argued for the Budapest Treaty which was claimed to be still in force between the
parties. She considered herself the legal successor of Czechoslovakia in relation to the Budapest
Treaty referring to the 1978 Vienna Convention16 as the codification of customary law, i.e. the
consent of Hungary, was not needed.
The ICJ considered the nature of the Budapest Treaty more important. Therefore, it did not
examine the parties’ arguments for and against the applicability of the 1978 Vienna Convention
and the referred customs. The Danube is an international navigation route, since the Budapest
Treaty affected the interest of other states, too. The Court referred to the comment of the United
Nations International Law Commission stating that succession does not have any effect on
territorial treaties. Treaties dealing with water and inland navigation are generally considered to
be territorial treaties.
Therefore, the Budapest Treaty established a territorial regime by establishing rights and
obligations on a certain part of the Danube. The ICJ decided that the succession did not have any
effect on the validity and applicability of the Budapest Treaty.

2. The legal consequences of the unlawful acts committed by the parties (reparations)

The aim of the reparations is to hide and/or restore the consequences of the unlawful acts, as the
ICJ cited the classical definition from the judgement of Permanent Court of International Justice
According to the ICJ, there has been a possibility to restore co-operative management. Therefore,
the mutual maintenance of the facility ruled that it was necessary. Moreover, the parties shall
rethink the water and electricity division, and they can decide not to build up the Nagymaros
system of locks. Both parties have the right to reparation as a result of the other party’s breached
international obligations.
The basis of reparation for Slovakia is the fact that Hungary suspended the construction and
unlawfully abandoned the site. For Hungary, the basis is the Czechoslovakian (Slovakian)
diversion of the Danube and the operation of the modified version of Variant “C”. The ICJ
proposed mutual renunciation.
But if Hungary wants to operate and use the facility, the proportional part of construction and
operation costs have to be paid. These costs are separated from the reparation since they have to
be solved (i.e. paid) on the basis of the Budapest Treaty.

CONCLUSION

Notwithstanding the predominance of pragmatic dispute the judgment in the Case Concerning
the Gabcikovo-Nagymaros has certainly strengthened the role of the Vienna Convention of
Treaties as a restatement of customary international law. time, the case has revealed the
fragmentary character of the If the latter is not to impair the project of codification, the must be
understood as a framework of legal rules that by the traditional rules of subjective treaty
interpretation. While Court may be criticized for its tendency to mask it has disposed of the
substantive conflict in an adequate The judgment thus demonstrates that the Convention can
reliable and flexible tool for the resolution of treaty disputes increasingly complex international.