Republic of the Philippines

SUPREME COURT
Manila

EN BANC

1. G.R. No. 159618               February 1, 2011

BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, and Rep.
LIZA L. MAZA, Petitioner,
vs.
ALBERTO ROMULO, in his capacity as Executive Secretary, and BLAS F. OPLE, in his
capacity as Secretary of Foreign Affairs, Respondents.

DECISION

VELASCO, JR., J.:

The Case

This petition1 for certiorari, mandamus and prohibition under Rule 65 assails and seeks to nullify the
Non-Surrender Agreement concluded by and between the Republic of the Philippines (RP) and the
United States of America (USA).

The Facts

Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized
sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary of Foreign Affairs
during the period material to this case. Respondent Alberto Romulo was impleaded in his capacity
as then Executive Secretary.2

Rome Statute of the International Criminal Court

Having a key determinative bearing on this case is the Rome Statute 3 establishing the International
Criminal Court (ICC) with "the power to exercise its jurisdiction over persons for the most serious
crimes of international concern x x x and shall be complementary to the national criminal
jurisdictions."4 The serious crimes adverted to cover those considered grave under international law,
such as genocide, crimes against humanity, war crimes, and crimes of aggression. 5

On December 28, 2000, the RP, through Charge d’Affaires Enrique A. Manalo, signed the Rome
Statute which, by its terms, is "subject to ratification, acceptance or approval" by the signatory
states.6 As of the filing of the instant petition, only 92 out of the 139 signatory countries appear to
have completed the ratification, approval and concurrence process. The Philippines is not among the
92.

RP-US Non-Surrender Agreement

On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the
Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement
(Agreement, hereinafter) between the USA and the RP.
Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03, hereinafter), the
RP, represented by then DFA Secretary Ople, agreed with and accepted the US proposals
embodied under the US Embassy Note adverted to and put in effect the Agreement with the US
government. In esse, the Agreement aims to protect what it refers to and defines as "persons" of the
RP and US from frivolous and harassment suits that might be brought against them in international
tribunals.8 It is reflective of the increasing pace of the strategic security and defense partnership
between the two countries. As of May 2, 2003, similar bilateral agreements have been effected by
and between the US and 33 other countries.9

The Agreement pertinently provides as follows:

1. For purposes of this Agreement, "persons" are current or former Government officials,
employees (including contractors), or military personnel or nationals of one Party.

2. Persons of one Party present in the territory of the other shall not, absent the express
consent of the first Party,

(a) be surrendered or transferred by any means to any international tribunal for any
purpose, unless such tribunal has been established by the UN Security Council, or

(b) be surrendered or transferred by any means to any other entity or third country, or
expelled to a third country, for the purpose of surrender to or transfer to any
international tribunal, unless such tribunal has been established by the UN Security
Council.

3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to
a third country, the [US] will not agree to the surrender or transfer of that person by the third
country to any international tribunal, unless such tribunal has been established by the UN
Security Council, absent the express consent of the Government of the Republic of the
Philippines [GRP].

4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a
third country, the [GRP] will not agree to the surrender or transfer of that person by the third
country to any international tribunal, unless such tribunal has been established by the UN
Security Council, absent the express consent of the Government of the [US].

5. This Agreement shall remain in force until one year after the date on which one party
notifies the other of its intent to terminate the Agreement. The provisions of this Agreement
shall continue to apply with respect to any act occurring, or any allegation arising, before the
effective date of termination.

In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-
surrender agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that the
exchange of diplomatic notes constituted a legally binding agreement under international law; and
that, under US law, the said agreement did not require the advice and consent of the US Senate. 10

In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and
ratifying the Agreement and prays that it be struck down as unconstitutional, or at least declared as
without force and effect.
For their part, respondents question petitioner’s standing to maintain a suit and counter that
the Agreement, being in the nature of an executive agreement, does not require Senate concurrence
for its efficacy. And for reasons detailed in their comment, respondents assert the constitutionality of
the Agreement.

The Issues

I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x GRAVELY

ABUSED THEIR DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
FOR CONCLUDING THE RP-US NON SURRENDER AGREEMENT BY MEANS OF
[E/N] BFO-028-03 DATED 13 MAY 2003, WHEN THE PHILIPPINE GOVERNMENT HAS
ALREADY SIGNED THE ROME STATUTE OF THE [ICC] ALTHOUGH THIS IS PENDING
RATIFICATION BY THE PHILIPPINE SENATE.

A. Whether by entering into the x x x Agreement Respondents gravely abused their

discretion when they capriciously abandoned, waived and relinquished our only
legitimate recourse through the Rome Statute of the [ICC] to prosecute and try
"persons" as defined in the x x x Agreement, x x x or literally any conduit of
American interests, who have committed crimes of genocide, crimes against
humanity, war crimes and the crime of aggression, thereby abdicating Philippine
Sovereignty.

B. Whether after the signing and pending ratification of the Rome Statute of the
[ICC] the [RP] President and the [DFA] Secretary x x x are obliged by the principle of
good faith to refrain from doing all acts which would substantially impair the value of
the undertaking as signed.

C. Whether the x x x Agreement constitutes an act which defeats the object and

purpose of the Rome Statute of the International Criminal Court and contravenes the
obligation of good faith inherent in the signature of the President affixed on the Rome
Statute of the International Criminal Court, and if so whether the x x x Agreement is
void and unenforceable on this ground.

D. Whether the RP-US Non-Surrender Agreement is void and unenforceable for

grave abuse of discretion amounting to lack or excess of jurisdiction in connection
with its execution.

II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB INITIO FOR

CONTRACTING OBLIGATIONS THAT ARE EITHER IMMORAL OR OTHERWISE AT
VARIANCE WITH UNIVERSALLY RECOGNIZED PRINCIPLES OF INTERNATIONAL LAW.

III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND EFFECTIVE WITHOUT

THE CONCURRENCE BY AT LEAST TWO-THIRDS (2/3) OF ALL THE MEMBERS OF THE
SENATE x x x.11

The foregoing issues may be summarized into two: first, whether or not the Agreement was
contracted validly, which resolves itself into the question of whether or not respondents gravely
abused their discretion in concluding it; and second, whether or not the Agreement, which has not
been submitted to the Senate for concurrence, contravenes and undermines the Rome Statute and
other treaties. But because respondents expectedly raised it, we shall first tackle the issue of
petitioner’s legal standing.
 The Court’s Ruling

This petition is bereft of merit.

Procedural Issue: Locus Standi of Petitioner

Petitioner, through its three party-list representatives, contends that the issue of the validity or
invalidity of the Agreement carries with it constitutional significance and is of paramount importance
that justifies its standing. Cited in this regard is what is usually referred to as the emergency powers
cases,12 in which ordinary citizens and taxpayers were accorded the personality to question the
constitutionality of executive issuances.

Locus standi is "a right of appearance in a court of justice on a given question." 13 Specifically, it is "a
party’s personal and substantial interest in a case where he has sustained or will sustain direct injury
as a result"14 of the act being challenged, and "calls for more than just a generalized
grievance."15 The term "interest" refers to material interest, as distinguished from one that is merely
incidental.16 The rationale for requiring a party who challenges the validity of a law or international
agreement to allege such a personal stake in the outcome of the controversy is "to assure the
concrete adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions." 17

Locus standi, however, is merely a matter of procedure and it has been recognized that, in some
cases, suits are not brought by parties who have been personally injured by the operation of a law or
any other government act, but by concerned citizens, taxpayers, or voters who actually sue in the
public interest.18 Consequently, in a catena of cases,19 this Court has invariably adopted a liberal
stance on locus standi.

Going by the petition, petitioner’s representatives pursue the instant suit primarily as concerned
citizens raising issues of transcendental importance, both for the Republic and the citizenry as a
whole.

When suing as a citizen to question the validity of a law or other government action, a petitioner
needs to meet certain specific requirements before he can be clothed with standing. Francisco, Jr. v.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc.20 expounded on this
requirement, thus:

In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.

When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must
be direct and personal. He must be able to show, not only that the law or any government act is
invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a
result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must
appear that the person complaining has been or is about to be denied some right or privilege to
which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of. In fine, when the proceeding involves the assertion of a
public right, the mere fact that he is a citizen satisfies the requirement of personal interest. 21

In the case at bar, petitioner’s representatives have complied with the qualifying conditions or
specific requirements exacted under the locus standi rule. As citizens, their interest in the subject
matter of the petition is direct and personal. At the very least, their assertions questioning the
Agreement are made of a public right, i.e., to ascertain that the Agreement did not go against
established national policies, practices, and obligations bearing on the State’s obligation to the
community of nations.

At any event, the primordial importance to Filipino citizens in general of the issue at hand impels the
Court to brush aside the procedural barrier posed by the traditional requirement of locus standi, as
we have done in a long line of earlier cases, notably in the old but oft-cited emergency powers
cases22 and Kilosbayan v. Guingona, Jr.23 In cases of transcendental importance, we wrote again
in Bayan v. Zamora,24 "The Court may relax the standing requirements and allow a suit to prosper
even where there is no direct injury to the party claiming the right of judicial review."

Moreover, bearing in mind what the Court said in Tañada v. Angara, "that it will not shirk, digress
from or abandon its sacred duty and authority to uphold the Constitution in matters that involve grave
abuse of discretion brought before it in appropriate cases, committed by any officer, agency,
instrumentality or department of the government," 25 we cannot but resolve head on the issues raised
before us. Indeed, where an action of any branch of government is seriously alleged to have
infringed the Constitution or is done with grave abuse of discretion, it becomes not only the right but
in fact the duty of the judiciary to settle it. As in this petition, issues are precisely raised putting to the
fore the propriety of the Agreement pending the ratification of the Rome Statute.

Validity of the RP-US Non-Surrender Agreement

Petitioner’s initial challenge against the Agreement relates to form, its threshold posture being that
E/N BFO-028-03 cannot be a valid medium for concluding the Agreement.

Petitioners’ contention––perhaps taken unaware of certain well-recognized international doctrines,

practices, and jargons––is untenable. One of these is the doctrine of incorporation, as expressed in
Section 2, Article II of the Constitution, wherein the Philippines adopts the generally accepted
principles of international law and international jurisprudence as part of the law of the land and
adheres to the policy of peace, cooperation, and amity with all nations. 26 An exchange of notes falls
"into the category of inter-governmental agreements," 27 which is an internationally accepted form of
international agreement. The United Nations Treaty Collections (Treaty Reference Guide) defines
the term as follows:

An "exchange of notes" is a record of a routine agreement, that has many similarities with the private
law contract. The agreement consists of the exchange of two documents, each of the parties being
in the possession of the one signed by the representative of the other. Under the usual procedure,
the accepting State repeats the text of the offering State to record its assent. The signatories of the
letters may be government Ministers, diplomats or departmental heads. The technique of exchange
of notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid
the process of legislative approval. 28

In another perspective, the terms "exchange of notes" and "executive agreements" have been used
interchangeably, exchange of notes being considered a form of executive agreement that becomes
binding through executive action. 29 On the other hand, executive agreements concluded by the
President "sometimes take the form of exchange of notes and at other times that of more formal
documents denominated ‘agreements’ or ‘protocols.’"30 As former US High Commissioner to the
Philippines Francis B. Sayre observed in his work, The Constitutionality of Trade Agreement Acts:

The point where ordinary correspondence between this and other governments ends and
agreements – whether denominated executive agreements or exchange of notes or otherwise –
begin, may sometimes be difficult of ready ascertainment. 31 x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03––be it viewed as the Non-
Surrender Agreement itself, or as an integral instrument of acceptance thereof or as consent to be
bound––is a recognized mode of concluding a legally binding international written contract among
nations.

Senate Concurrence Not Required

Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as "an international
agreement concluded between states in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments and whatever its particular
designation."32 International agreements may be in the form of (1) treaties that require legislative
concurrence after executive ratification; or (2) executive agreements that are similar to treaties,
except that they do not require legislative concurrence and are usually less formal and deal with a
narrower range of subject matters than treaties.33

Under international law, there is no difference between treaties and executive agreements in terms
of their binding effects on the contracting states concerned, 34 as long as the negotiating functionaries
have remained within their powers.35 Neither, on the domestic sphere, can one be held valid if it
violates the Constitution.36 Authorities are, however, agreed that one is distinct from another for
accepted reasons apart from the concurrence-requirement aspect. 37 As has been observed by US
constitutional scholars, a treaty has greater "dignity" than an executive agreement, because its
constitutional efficacy is beyond doubt, a treaty having behind it the authority of the President, the
Senate, and the people;38 a ratified treaty, unlike an executive agreement, takes precedence over
any prior statutory enactment. 39

Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the
nature of a treaty; hence, it must be duly concurred in by the Senate. Petitioner takes a cue
from Commissioner of Customs v. Eastern Sea Trading, in which the Court reproduced the following
observations made by US legal scholars: "[I]nternational agreements involving political issues or
changes of national policy and those involving international arrangements of a permanent character
usually take the form of treaties [while] those embodying adjustments of detail carrying out well
established national policies and traditions and those involving arrangements of a more or less
temporary nature take the form of executive agreements." 40

Pressing its point, petitioner submits that the subject of the Agreement does not fall under any of the
subject-categories that are enumerated in the Eastern Sea Trading case, and that may be covered
by an executive agreement, such as commercial/consular relations, most-favored nation rights,
patent rights, trademark and copyright protection, postal and navigation arrangements and
settlement of claims.

In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of Zambales and
Merchant,41 holding that an executive agreement through an exchange of notes cannot be used to
amend a treaty.

We are not persuaded.

The categorization of subject matters that may be covered by international agreements mentioned
in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on the propriety of
entering, on a given subject, into a treaty or an executive agreement as an instrument of
international relations. The primary consideration in the choice of the form of agreement is the
parties’ intent and desire to craft an international agreement in the form they so wish to further their
respective interests. Verily, the matter of form takes a back seat when it comes to effectiveness and
binding effect of the enforcement of a treaty or an executive agreement, as the parties in either
international agreement each labor under the pacta sunt servanda42 principle.

As may be noted, almost half a century has elapsed since the Court rendered its decision in Eastern
Sea Trading. Since then, the conduct of foreign affairs has become more complex and the domain of
international law wider, as to include such subjects as human rights, the environment, and the sea.
In fact, in the US alone, the executive agreements executed by its President from 1980 to 2000
covered subjects such as defense, trade, scientific cooperation, aviation, atomic energy,
environmental cooperation, peace corps, arms limitation, and nuclear safety, among others. 43 Surely,
the enumeration in Eastern Sea Trading cannot circumscribe the option of each state on the matter
of which the international agreement format would be convenient to serve its best interest. As
Francis Sayre said in his work referred to earlier:

x x x It would be useless to undertake to discuss here the large variety of executive agreements as
such concluded from time to time. Hundreds of executive agreements, other than those entered into
under the trade-agreement act, have been negotiated with foreign governments. x x x They cover
such subjects as the inspection of vessels, navigation dues, income tax on shipping profits, the
admission of civil air craft, custom matters and commercial relations generally, international claims,
postal matters, the registration of trademarks and copyrights, etc. x x x

And lest it be overlooked, one type of executive agreement is a treaty-authorized 44 or a treaty-
implementing executive agreement,45 which necessarily would cover the same matters subject of the
underlying treaty.

But over and above the foregoing considerations is the fact that––save for the situation and matters
contemplated in Sec. 25, Art. XVIII of the Constitution46––when a treaty is required, the Constitution
does not classify any subject, like that involving political issues, to be in the form of, and ratified as, a
treaty. What the Constitution merely prescribes is that treaties need the concurrence of the Senate
by a vote defined therein to complete the ratification process.

Petitioner’s reliance on Adolfo47 is misplaced, said case being inapplicable owing to different factual
milieus. There, the Court held that an executive agreement cannot be used to amend a duly ratified
and existing treaty, i.e., the Bases Treaty. Indeed, an executive agreement that does not require the
concurrence of the Senate for its ratification may not be used to amend a treaty that, under the
Constitution, is the product of the ratifying acts of the Executive and the Senate. The presence of a
treaty, purportedly being subject to amendment by an executive agreement, does not obtain under
the premises.

Considering the above discussion, the Court need not belabor at length the third main issue raised,
referring to the validity and effectivity of the Agreement without the concurrence by at least two-thirds
of all the members of the Senate. The Court has, in Eastern Sea Trading,48 as reiterated
in Bayan,49 given recognition to the obligatory effect of executive agreements without the
concurrence of the Senate:

x x x [T]he right of the Executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. From the earliest days of
our history, we have entered executive agreements covering such subjects as commercial and
consular relations, most favored-nation rights, patent rights, trademark and copyright protection,
postal and navigation arrangements and the settlement of claims. The validity of these has never
been seriously questioned by our courts.

The Agreement Not in Contravention of the Rome Statute

It is the petitioner’s next contention that the Agreement undermines the establishment of the ICC and
is null and void insofar as it unduly restricts the ICC’s jurisdiction and infringes upon the effectivity of
the Rome Statute. Petitioner posits that the Agreement was constituted solely for the purpose of
providing individuals or groups of individuals with immunity from the jurisdiction of the ICC; and such
grant of immunity through non-surrender agreements allegedly does not legitimately fall within the
scope of Art. 98 of the Rome Statute. It concludes that state parties with non-surrender agreements
are prevented from meeting their obligations under the Rome Statute, thereby constituting a breach
of Arts. 27,50 86,51 8952 and 9053 thereof.

Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that those
responsible for the worst possible crimes are brought to justice in all cases, primarily by states, but
as a last resort, by the ICC; thus, any agreement—like the non-surrender agreement—that
precludes the ICC from exercising its complementary function of acting when a state is unable to or
unwilling to do so, defeats the object and purpose of the Rome Statute.

Petitioner would add that the President and the DFA Secretary, as representatives of a signatory of
the Rome Statute, are obliged by the imperatives of good faith to refrain from performing acts that
substantially devalue the purpose and object of the Statute, as signed. Adding a nullifying ingredient
to the Agreement, according to petitioner, is the fact that it has an immoral purpose or is otherwise at
variance with a priorly executed treaty.

Contrary to petitioner’s pretense, the Agreement does not contravene or undermine, nor does it

differ from, the Rome Statute. Far from going against each other, one complements the other. As a
matter of fact, the principle of complementarity underpins the creation of the ICC. As aptly pointed
out by respondents and admitted by petitioners, the jurisdiction of the ICC is to "be complementary
to national criminal jurisdictions [of the signatory states]." 54 Art. 1 of the Rome Statute pertinently
provides:

Article 1
The Court

An International Crimininal Court ("the Court") is hereby established. It x x x shall have the power
to exercise its jurisdiction over persons for the most serious crimes of international concern, as
referred to in this Statute, and shall be complementary to national criminal jurisdictions. The
jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.
(Emphasis ours.)

Significantly, the sixth preambular paragraph of the Rome Statute declares that "it is the duty of
every State to exercise its criminal jurisdiction over those responsible for international crimes." This
provision indicates that primary jurisdiction over the so-called international crimes rests, at the first
instance, with the state where the crime was committed; secondarily, with the ICC in appropriate
situations contemplated under Art. 17, par. 155 of the Rome Statute.

Of particular note is the application of the principle of ne bis in idem56 under par. 3 of Art. 20, Rome
Statute, which again underscores the primacy of the jurisdiction of a state vis-a-vis that of the ICC.
As far as relevant, the provision states that "no person who has been tried by another court for
conduct x x x [constituting crimes within its jurisdiction] shall be tried by the [International Criminal]
Court with respect to the same conduct x x x."

The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of
jurisdictional conflict between the Philippines, as party to the non-surrender agreement, and the ICC;
or the idea of the Agreement substantially impairing the value of the RP’s undertaking under the
qaRome Statute. Ignoring for a while the fact that the RP signed the Rome Statute ahead of
the Agreement, it is abundantly clear to us that the Rome Statute expressly recognizes the primary
jurisdiction of states, like the RP, over serious crimes committed within their respective borders, the
complementary jurisdiction of the ICC coming into play only when the signatory states are unwilling
or unable to prosecute.

Given the above consideration, petitioner’s suggestion––that the RP, by entering into
the Agreement, violated its duty required by the imperatives of good faith and breached its
commitment under the Vienna Convention 57 to refrain from performing any act tending to impair the
value of a treaty, e.g., the Rome Statute––has to be rejected outright. For nothing in the provisions
of the Agreement, in relation to the Rome Statute, tends to diminish the efficacy of the Statute, let
alone defeats the purpose of the ICC. Lest it be overlooked, the Rome Statute contains a proviso
that enjoins the ICC from seeking the surrender of an erring person, should the process require the
requested state to perform an act that would violate some international agreement it has entered
into. We refer to Art. 98(2) of the Rome Statute, which reads:

Article 98
Cooperation with respect to waiver of immunity
and consent to surrender

xxxx

2. The Court may not proceed with a request for surrender which would require the requested State
to act inconsistently with its obligations under international agreements pursuant to which the
consent of a sending State is required to surrender a person of that State to the Court, unless the
Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

Moreover, under international law, there is a considerable difference between a State-Party and a
signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory state is only
obliged to refrain from acts which would defeat the object and purpose of a treaty; 58 whereas a State-
Party, on the other hand, is legally obliged to follow all the provisions of a treaty in good faith.

In the instant case, it bears stressing that the Philippines is only a signatory to the Rome Statute and
not a State-Party for lack of ratification by the Senate. Thus, it is only obliged to refrain from acts
which would defeat the object and purpose of the Rome Statute. Any argument obliging the
Philippines to follow any provision in the treaty would be premature.

As a result, petitioner’s argument that State-Parties with non-surrender agreements are prevented
from meeting their obligations under the Rome Statute, specifically Arts. 27, 86, 89 and 90, must fail.
These articles are only legally binding upon State-Parties, not signatories.

Furthermore, a careful reading of said Art. 90 would show that the Agreement is not incompatible
with the Rome Statute. Specifically, Art. 90(4) provides that "[i]f the requesting State is a State not
Party to this Statute the requested State, if it is not under an international obligation to extradite the
person to the requesting State, shall give priority to the request for surrender from the Court. x x x" In
applying the provision, certain undisputed facts should be pointed out: first, the US is neither a State-
Party nor a signatory to the Rome Statute; and second, there is an international agreement between
the US and the Philippines regarding extradition or surrender of persons, i.e., the Agreement.
Clearly, even assuming that the Philippines is a State-Party, the Rome Statute still recognizes the
primacy of international agreements entered into between States, even when one of the States is not
a State-Party to the Rome Statute.
 Sovereignty Limited by International Agreements

Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty by
bargaining away the jurisdiction of the ICC to prosecute US nationals, government
officials/employees or military personnel who commit serious crimes of international concerns in the
Philippines. Formulating petitioner’s argument a bit differently, the RP, by entering into
the Agreement, does thereby abdicate its sovereignty, abdication being done by its waiving or
abandoning its right to seek recourse through the Rome Statute of the ICC for erring Americans
committing international crimes in the country.

We are not persuaded. As it were, the Agreement is but a form of affirmance and confirmance of the
Philippines’ national criminal jurisdiction. National criminal jurisdiction being primary, as explained
above, it is always the responsibility and within the prerogative of the RP either to prosecute criminal
offenses equally covered by the Rome Statute or to accede to the jurisdiction of the ICC. Thus, the
Philippines may decide to try "persons" of the US, as the term is understood in the Agreement,
under our national criminal justice system. Or it may opt not to exercise its criminal jurisdiction over
its erring citizens or over US "persons" committing high crimes in the country and defer to the
secondary criminal jurisdiction of the ICC over them. As to "persons" of the US whom the Philippines
refuses to prosecute, the country would, in effect, accord discretion to the US to exercise either its
national criminal jurisdiction over the "person" concerned or to give its consent to the referral of the
matter to the ICC for trial. In the same breath, the US must extend the same privilege to the
Philippines with respect to "persons" of the RP committing high crimes within US territorial
jurisdiction.

In the context of the Constitution, there can be no serious objection to the Philippines agreeing to
undertake the things set forth in the Agreement. Surely, one State can agree to waive jurisdiction—
to the extent agreed upon—to subjects of another State due to the recognition of the principle of
extraterritorial immunity. What the Court wrote in Nicolas v. Romulo59—a case involving the
implementation of the criminal jurisdiction provisions of the RP-US Visiting Forces Agreement—is
apropos:

Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or
some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such
immunity like Heads of State, diplomats and members of the armed forces contingents of a foreign
State allowed to enter another State’s territory. x x x

To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the postulate
that some of its provisions constitute a virtual abdication of its sovereignty. Almost every time a state
enters into an international agreement, it voluntarily sheds off part of its sovereignty. The
Constitution, as drafted, did not envision a reclusive Philippines isolated from the rest of the world. It
even adheres, as earlier stated, to the policy of cooperation and amity with all nations. 60

By their nature, treaties and international agreements actually have a limiting effect on the otherwise
encompassing and absolute nature of sovereignty. By their voluntary act, nations may decide to
surrender or waive some aspects of their state power or agree to limit the exercise of their otherwise
exclusive and absolute jurisdiction. The usual underlying consideration in this partial surrender may
be the greater benefits derived from a pact or a reciprocal undertaking of one contracting party to
grant the same privileges or immunities to the other. On the rationale that the Philippines has
adopted the generally accepted principles of international law as part of the law of the land, a portion
of sovereignty may be waived without violating the Constitution. 61 Such waiver does not amount to
an unconstitutional diminution or deprivation of jurisdiction of Philippine courts. 62
 Agreement Not Immoral/Not at Variance
with Principles of International Law

Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral
obligations and/or being at variance with allegedly universally recognized principles of international
law. The immoral aspect proceeds from the fact that the Agreement, as petitioner would put it,
"leaves criminals immune from responsibility for unimaginable atrocities that deeply shock the
conscience of humanity; x x x it precludes our country from delivering an American criminal to the
[ICC] x x x."63

The above argument is a kind of recycling of petitioner’s earlier position, which, as already
discussed, contends that the RP, by entering into the Agreement, virtually abdicated its sovereignty
and in the process undermined its treaty obligations under the Rome Statute, contrary to
international law principles.64

The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as
aptly described by the Solicitor General, "is an assertion by the Philippines of its desire to try and
punish crimes under its national law. x x x The agreement is a recognition of the primacy and
competence of the country’s judiciary to try offenses under its national criminal laws and dispense
justice fairly and judiciously."

Petitioner, we believe, labors under the erroneous impression that the Agreement would allow
Filipinos and Americans committing high crimes of international concern to escape criminal trial and
punishment. This is manifestly incorrect. Persons who may have committed acts penalized under the
Rome Statute can be prosecuted and punished in the Philippines or in the US; or with the consent of
the RP or the US, before the ICC, assuming, for the nonce, that all the formalities necessary to bind
both countries to the Rome Statute have been met. For perspective, what
the Agreement contextually prohibits is the surrender by either party of individuals to international
tribunals, like the ICC, without the consent of the other party, which may desire to prosecute the
crime under its existing laws. With the view we take of things, there is nothing immoral or violative of
international law concepts in the act of the Philippines of assuming criminal jurisdiction pursuant to
the non-surrender agreement over an offense considered criminal by both Philippine laws and the
Rome Statute.

No Grave Abuse of Discretion

Petitioner’s final point revolves around the necessity of the Senate’s concurrence in the Agreement.
And without specifically saying so, petitioner would argue that the non-surrender agreement was
executed by the President, thru the DFA Secretary, in grave abuse of discretion.

The Court need not delve on and belabor the first portion of the above posture of petitioner, the
same having been discussed at length earlier on. As to the second portion, We wish to state that
petitioner virtually faults the President for performing, through respondents, a task conferred the
President by the Constitution—the power to enter into international agreements.

By constitutional fiat and by the nature of his or her office, the President, as head of state and
government, is the sole organ and authority in the external affairs of the country. 65 The Constitution
vests in the President the power to enter into international agreements, subject, in appropriate
cases, to the required concurrence votes of the Senate. But as earlier indicated, executive
agreements may be validly entered into without such concurrence. As the President wields vast
powers and influence, her conduct in the external affairs of the nation is, as Bayan would put it,
"executive altogether." The right of the President to enter into or ratify binding executive agreements
has been confirmed by long practice.66

In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria

Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope of the
authority and discretion vested in her by the Constitution. At the end of the day, the President––by
ratifying, thru her deputies, the non-surrender agreement––did nothing more than discharge a
constitutional duty and exercise a prerogative that pertains to her office.

While the issue of ratification of the Rome Statute is not determinative of the other issues raised
herein, it may perhaps be pertinent to remind all and sundry that about the time this petition was
interposed, such issue of ratification was laid to rest in Pimentel, Jr. v. Office of the Executive
Secretary.67 As the Court emphasized in said case, the power to ratify a treaty, the Statute in that
instance, rests with the President, subject to the concurrence of the Senate, whose role relative to
the ratification of a treaty is limited merely to concurring in or withholding the ratification. And
concomitant with this treaty-making power of the President is his or her prerogative to refuse to
submit a treaty to the Senate; or having secured the latter’s consent to the ratification of the treaty,
refuse to ratify it.68 This prerogative, the Court hastened to add, is the President’s alone and cannot
be encroached upon via a writ of mandamus. Barring intervening events, then, the Philippines
remains to be just a signatory to the Rome Statute. Under Art. 125 69 thereof, the final acts required to
complete the treaty process and, thus, bring it into force, insofar as the Philippines is concerned,
have yet to be done.

Agreement Need Not Be in the Form of a Treaty

On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA) 9851,
otherwise known as the "Philippine Act on Crimes Against International Humanitarian Law,
Genocide, and Other Crimes Against Humanity." Sec. 17 of RA 9851, particularly the second
paragraph thereof, provides:

Section 17. Jurisdiction. – x x x x

In the interest of justice, the relevant Philippine authorities may dispense with the investigation or
prosecution of a crime punishable under this Act if another court or international tribunal is already
conducting the investigation or undertaking the prosecution of such crime. Instead, the
authorities may surrender or extradite suspected or accused persons in the Philippines to the
appropriate international court, if any, or to another State pursuant to the applicable extradition laws
and treaties. (Emphasis supplied.)

A view is advanced that the Agreement amends existing municipal laws on the State’s obligation in
relation to grave crimes against the law of nations, i.e., genocide, crimes against humanity and war
crimes. Relying on the above-quoted statutory proviso, the view posits that the Philippine is required
to surrender to the proper international tribunal those persons accused of the grave crimes defined
under RA 9851, if it does not exercise its primary jurisdiction to prosecute them.

The basic premise rests on the interpretation that if it does not decide to prosecute a foreign national
for violations of RA 9851, the Philippines has only two options, to wit: (1) surrender the accused to
the proper international tribunal; or (2) surrender the accused to another State if such surrender is
"pursuant to the applicable extradition laws and treaties." But the Philippines may exercise these
options only in cases where "another court or international tribunal is already conducting the
investigation or undertaking the prosecution of such crime;" otherwise, the Philippines must
prosecute the crime before its own courts pursuant to RA 9851.
Posing the situation of a US national under prosecution by an international tribunal for any crime
under RA 9851, the Philippines has the option to surrender such US national to the international
tribunal if it decides not to prosecute such US national here. The view asserts that this option of the
Philippines under Sec. 17 of RA 9851 is not subject to the consent of the US, and any derogation of
Sec. 17 of RA 9851, such as requiring the consent of the US before the Philippines can exercise
such option, requires an amendatory law. In line with this scenario, the view strongly argues that
the Agreement prevents the Philippines—without the consent of the US—from surrendering to any
international tribunal US nationals accused of crimes covered by RA 9851, and, thus, in effect
amends Sec. 17 of RA 9851. Consequently, the view is strongly impressed that
the Agreement cannot be embodied in a simple executive agreement in the form of an exchange of
notes but must be implemented through an extradition law or a treaty with the corresponding
formalities.

Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution, where the
Philippines adopts, as a national policy, the "generally accepted principles of international law as
part of the law of the land," the Court is further impressed to perceive the Rome Statute as
declaratory of customary international law. In other words, the Statute embodies principles of law
which constitute customary international law or custom and for which reason it assumes the status of
an enforceable domestic law in the context of the aforecited constitutional provision. As a corollary, it
is argued that any derogation from the Rome Statute principles cannot be undertaken via a mere
executive agreement, which, as an exclusive act of the executive branch, can only implement, but
cannot amend or repeal, an existing law. The Agreement, so the argument goes, seeks to frustrate
the objects of the principles of law or alters customary rules embodied in the Rome Statute.

Prescinding from the foregoing premises, the view thus advanced considers
the Agreement inefficacious, unless it is embodied in a treaty duly ratified with the concurrence of
the Senate, the theory being that a Senate- ratified treaty partakes of the nature of a municipal law
that can amend or supersede another law, in this instance Sec. 17 of RA 9851 and the status of the
Rome Statute as constitutive of enforceable domestic law under Sec. 2, Art. II of the Constitution.

We are unable to lend cogency to the view thus taken. For one, we find that the Agreement does not
amend or is repugnant to RA 9851. For another, the view does not clearly state what precise
principles of law, if any, the Agreement alters. And for a third, it does not demonstrate in the
concrete how the Agreement seeks to frustrate the objectives of the principles of law subsumed in
the Rome Statute.

Far from it, as earlier explained, the Agreement does not undermine the Rome Statute as the former
merely reinforces the primacy of the national jurisdiction of the US and the Philippines in prosecuting
criminal offenses committed by their respective citizens and military personnel, among others. The
jurisdiction of the ICC pursuant to the Rome Statute over high crimes indicated thereat is clearly and
unmistakably complementary to the national criminal jurisdiction of the signatory states.

Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international humanitarian
law, genocide and other crimes against humanity;70 (2) provides penal sanctions and criminal liability
for their commission;71 and (3) establishes special courts for the prosecution of these crimes and for
the State to exercise primary criminal jurisdiction.72 Nowhere in RA 9851 is there a proviso that goes
against the tenor of the Agreement.

The view makes much of the above quoted second par. of Sec. 17, RA 9851 as requiring the
Philippine State to surrender to the proper international tribunal those persons accused of crimes
sanctioned under said law if it does not exercise its primary jurisdiction to prosecute such persons.
This view is not entirely correct, for the above quoted proviso clearly provides discretion to the
Philippine State on whether to surrender or not a person accused of the crimes under RA 9851. The
statutory proviso uses the word "may." It is settled doctrine in statutory construction that the word
"may" denotes discretion, and cannot be construed as having mandatory effect. 73 Thus, the pertinent
second pararagraph of Sec. 17, RA 9851 is simply permissive on the part of the Philippine State. 1avvphi1

Besides, even granting that the surrender of a person is mandatorily required when the Philippines
does not exercise its primary jurisdiction in cases where "another court or international tribunal is
already conducting the investigation or undertaking the prosecution of such crime," still, the tenor of
the Agreement is not repugnant to Sec. 17 of RA 9851. Said legal proviso aptly provides that the
surrender may be made "to another State pursuant to the applicable extradition laws and treaties."
The Agreement can already be considered a treaty following this Court’s decision in Nicolas v.
Romulo74 which cited Weinberger v. Rossi.75 In Nicolas, We held that "an executive agreement is a
‘treaty’ within the meaning of that word in international law and constitutes enforceable domestic law
vis-à-vis the United States."76

Likewise, the Philippines and the US already have an existing extradition treaty, i.e., RP-US
Extradition Treaty, which was executed on November 13, 1994. The pertinent Philippine law, on the
other hand, is Presidential Decree No. 1069, issued on January 13, 1977. Thus, the Agreement, in
conjunction with the RP-US Extradition Treaty, would neither violate nor run counter to Sec. 17 of
RA 9851.

The view’s reliance on Suplico v. Neda77 is similarly improper. In that case, several petitions were
filed questioning the power of the President to enter into foreign loan agreements. However, before
the petitions could be resolved by the Court, the Office of the Solicitor General filed a Manifestation
and Motion averring that the Philippine Government decided not to continue with the ZTE National
Broadband Network Project, thus rendering the petition moot. In resolving the case, the Court took
judicial notice of the act of the executive department of the Philippines (the President) and found the
petition to be indeed moot. Accordingly, it dismissed the petitions.

In his dissent in the abovementioned case, Justice Carpio discussed the legal implications of an
executive agreement. He stated that "an executive agreement has the force and effect of law x x x
[it] cannot amend or repeal prior laws."78 Hence, this argument finds no application in this case
seeing as RA 9851 is a subsequent law, not a prior one. Notably, this argument cannot be found in
the ratio decidendi of the case, but only in the dissenting opinion.

The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851 for the
reason that under par. 1, Art. 2 of the RP-US Extradition Treaty, "[a]n offense shall be an
extraditable offense if it is punishable under the laws in both Contracting Parties x x x," 79 and thereby
concluding that while the Philippines has criminalized under RA 9851 the acts defined in the Rome
Statute as war crimes, genocide and other crimes against humanity, there is no similar legislation in
the US. It is further argued that, citing U.S. v. Coolidge, in the US, a person cannot be tried in the
federal courts for an international crime unless Congress adopts a law defining and punishing the
offense.

This view must fail.

On the contrary, the US has already enacted legislation punishing the high crimes mentioned earlier.
In fact, as early as October 2006, the US enacted a law criminalizing war crimes. Section 2441,
Chapter 118, Part I, Title 18 of the United States Code Annotated (USCA) provides for the criminal
offense of "war crimes" which is similar to the war crimes found in both the Rome Statute and RA
9851, thus:
 (a) Offense – Whoever, whether inside or outside the United States, commits a war crime, in
any of the circumstances described in subsection (b), shall be fined under this title or
imprisoned for life or any term of years, or both, and if death results to the victim, shall also
be subject to the penalty of death.

(b) Circumstances – The circumstances referred to in subsection (a) are that the person
committing such war crime or the victim of such war crime is a member of the Armed Forces
of the United States or a national of the United States (as defined in Section 101 of the
Immigration and Nationality Act).

(c) Definition – As used in this Section the term "war crime" means any conduct –

(1) Defined as a grave breach in any of the international conventions signed at

Geneva 12 August 1949, or any protocol to such convention to which the United
States is a party;

(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague Convention IV,
Respecting the Laws and Customs of War on Land, signed 18 October 1907;

(3) Which constitutes a grave breach of common Article 3 (as defined in subsection
[d]) when committed in the context of and in association with an armed conflict not of
an international character; or

(4) Of a person who, in relation to an armed conflict and contrary to the provisions of
the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and
Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3
May 1996), when the United States is a party to such Protocol, willfully kills or causes
serious injury to civilians.80
1avvphi1

Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit:

§1091. Genocide

(a) Basic Offense – Whoever, whether in the time of peace or in time of war and with specific
intent to destroy, in whole or in substantial part, a national, ethnic, racial or religious group as
such–

(1) kills members of that group;

(2) causes serious bodily injury to members of that group;

(3) causes the permanent impairment of the mental faculties of members of the
group through drugs, torture, or similar techniques;

(4) subjects the group to conditions of life that are intended to cause the physical
destruction of the group in whole or in part;

(5) imposes measures intended to prevent births within the group; or

(6) transfers by force children of the group to another group;

shall be punished as provided in subsection (b). 81

Arguing further, another view has been advanced that the current US laws do not cover every crime
listed within the jurisdiction of the ICC and that there is a gap between the definitions of the different
crimes under the US laws versus the Rome Statute. The view used a report written by Victoria K.
Holt and Elisabeth W. Dallas, entitled "On Trial: The US Military and the International Criminal
Court," as its basis.

At the outset, it should be pointed out that the report used may not have any weight or value under
international law. Article 38 of the Statute of the International Court of Justice (ICJ) lists the sources
of international law, as follows: (1) international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states; (2) international custom, as
evidence of a general practice accepted as law; (3) the general principles of law recognized by
civilized nations; and (4) subject to the provisions of Article 59, judicial decisions and the teachings
of the most highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law. The report does not fall under any of the foregoing enumerated
sources. It cannot even be considered as the "teachings of highly qualified publicists." A highly
qualified publicist is a scholar of public international law and the term usually refers to legal scholars
or "academic writers."82 It has not been shown that the authors 83 of this report are highly qualified
publicists.

Assuming arguendo that the report has weight, still, the perceived gaps in the definitions of the
crimes are nonexistent. To highlight, the table below shows the definitions of genocide and war
crimes under the Rome Statute vis-à-vis the definitions under US laws:

Rome Statute US Law

Article 6
Genocide
For the purpose of this Statute, "genocide"
means any of the following acts committed
with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as
such:
§1091. Genocide
(a) Basic Offense – Whoever,
whether in the time of peace or in
time of war and with specific intent to
destroy, in whole or in substantial
part, a national, ethnic, racial or
religious group as such–

(a) Killing members of the group; (1) kills members of that

group;
(b) Causing serious bodily or mental
harm to members of the group; (2) causes serious bodily
injury to members of that
(c) Deliberately inflicting on the group group;
conditions of life calculated to bring
about its physical destruction in whole (3) causes the permanent
or in part; impairment of the mental
faculties of members of the
(d) Imposing measures intended to group through drugs, torture,
prevent births within the group; or similar techniques;

(e) Forcibly transferring children of the (4) subjects the group to

group to another group. conditions of life that are

Article 8
War Crimes
2. For the purpose of this Statute,
"war crimes" means:
(a) Grave breaches of the
Geneva Conventions of 12
August 1949, namely, any of
the following acts against
persons or property protected
under the provisions of the
relevant Geneva Convention:
x x x84
(b) Other serious violations of
the laws and customs
applicable in international
armed conflict, within the
established framework of
international law, namely, any
of the following acts:
xxxx
(c) In the case of an armed
conflict not of an international
character, serious violations
of article 3 common to the
four Geneva Conventions of
12 August 1949, namely, any
of the following acts
committed against persons
taking no active part in the
hostilities, including members
of armed forces who have laid
intended to cause the physical
destruction of the group in
whole or in part;
(5) imposes measures
intended to prevent births
within the group; or
(6) transfers by force children
of the group to another group;
shall be punished as provided in
subsection (b).
(d) Definition – As used in this Section
the term "war crime" means any
conduct –
(1) Defined as a grave breach in any
of the international conventions
signed at Geneva 12 August 1949, or
any protocol to such convention to
which the United States is a party;
(2) Prohibited by Article 23, 25, 27 or
28 of the Annex to the Hague
Convention IV, Respecting the Laws
and Customs of War on Land, signed
18 October 1907;
(3) Which constitutes a grave breach
of common Article 3 (as defined in
subsection [d]85) when committed in
the context of and in association with
an armed conflict not of an
international character; or
(4) Of a person who, in relation to an
armed conflict and contrary to the
provisions of the Protocol on
Prohibitions or Restrictions on the
Use of Mines, Booby-Traps and Other
Devices as amended at Geneva on 3
May 1996 (Protocol II as amended on
3 May 1996), when the United States
is a party to such Protocol, willfully
kills or causes serious injury to
civilians.86
 down their arms and those
placed hors de combat by
sickness, wounds, detention
or any other cause:

xxxx

(d) Paragraph 2 (c) applies to

armed conflicts not of an
international character and
thus does not apply to
situations of internal
disturbances and tensions,
such as riots, isolated and
sporadic acts of violence or
other acts of a similar nature.

(e) Other serious violations of

the laws and customs
applicable in armed conflicts
not of an international
character, within the
established framework of
international law, namely, any
of the following acts: x x x.

Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact, the report
itself stated as much, to wit:

Few believed there were wide differences between the crimes under the jurisdiction of the Court and
crimes within the Uniform Code of Military Justice that would expose US personnel to the Court.
Since US military lawyers were instrumental in drafting the elements of crimes outlined in the Rome
Statute, they ensured that most of the crimes were consistent with those outlined in the UCMJ and
gave strength to complementarity for the US. Small areas of potential gaps between the UCMJ and
the Rome Statute, military experts argued, could be addressed through existing military laws. 87 x x x

The report went on further to say that "[a]ccording to those involved, the elements of crimes laid out
in the Rome Statute have been part of US military doctrine for decades." 88 Thus, the argument
proffered cannot stand.

Nonetheless, despite the lack of actual domestic legislation, the US notably follows the doctrine of
incorporation. As early as 1900, the esteemed Justice Gray in The Paquete Habana 89 case already
held international law as part of the law of the US, to wit:

International law is part of our law, and must be ascertained and administered by the courts of
justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented
for their determination. For this purpose, where there is no treaty and no controlling executive or
legislative act or judicial decision, resort must be had to the customs and usages of civilized nations,
and, as evidence of these, to the works of jurists and commentators who by years of labor, research,
and experience have made themselves peculiarly well acquainted with the subjects of which they
treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors
concerning what the law ought to be, but for the trustworthy evidence of what the law really
is.90 (Emphasis supplied.)

Thus, a person can be tried in the US for an international crime despite the lack of domestic
legislation. The cited ruling in U.S. v. Coolidge, 91 which in turn is based on the holding in U.S. v.
Hudson,92 only applies to common law and not to the law of nations or international law. 93 Indeed, the
Court in U.S. v. Hudson only considered the question, "whether the Circuit Courts of the United
States can exercise a common law jurisdiction in criminal cases."94 Stated otherwise, there is no
common law crime in the US but this is considerably different from international law.

The US doubtless recognizes international law as part of the law of the land, necessarily including
international crimes, even without any local statute. 95 In fact, years later, US courts would apply
international law as a source of criminal liability despite the lack of a local statute criminalizing it as
such. So it was that in Ex Parte Quirin96 the US Supreme Court noted that "[f]rom the very beginning
of its history this Court has recognized and applied the law of war as including that part of the law of
nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as
well as of enemy individuals."97 It went on further to explain that Congress had not undertaken the
task of codifying the specific offenses covered in the law of war, thus:

It is no objection that Congress in providing for the trial of such offenses has not itself undertaken to
codify that branch of international law or to mark its precise boundaries, or to enumerate or define by
statute all the acts which that law condemns. An Act of Congress punishing ‘the crime of piracy as
defined by the law of nations is an appropriate exercise of its constitutional authority, Art. I, s 8, cl.
10, ‘to define and punish’ the offense since it has adopted by reference the sufficiently precise
definition of international law. x x x Similarly by the reference in the 15th Article of War to ‘offenders
or offenses that x x x by the law of war may be triable by such military commissions. Congress has
incorporated by reference, as within the jurisdiction of military commissions, all offenses which are
defined as such by the law of war x x x, and which may constitutionally be included within that
jurisdiction.98 x x x (Emphasis supplied.)

This rule finds an even stronger hold in the case of crimes against humanity. It has been held that
genocide, war crimes and crimes against humanity have attained the status of customary
international law. Some even go so far as to state that these crimes have attained the status of jus
cogens.99

Customary international law or international custom is a source of international law as stated in the
Statute of the ICJ.100 It is defined as the "general and consistent practice of states recognized and
followed by them from a sense of legal obligation." 101 In order to establish the customary status of a
particular norm, two elements must concur: State practice, the objective element; and opinio juris
sive necessitates, the subjective element.102

State practice refers to the continuous repetition of the same or similar kind of acts or norms by
States.103 It is demonstrated upon the existence of the following elements: (1) generality; (2)
uniformity and consistency; and (3) duration. 104 While, opinio juris, the psychological element,
requires that the state practice or norm "be carried out in such a way, as to be evidence of a belief
that this practice is rendered obligatory by the existence of a rule of law requiring it." 105

"The term ‘jus cogens’ means the ‘compelling law.’"106 Corollary, "a jus cogens norm holds the
highest hierarchical position among all other customary norms and principles." 107 As a result, jus
cogens norms are deemed "peremptory and non-derogable." 108 When applied to international crimes,
"jus cogens crimes have been deemed so fundamental to the existence of a just international legal
order that states cannot derogate from them, even by agreement." 109

These jus cogens crimes relate to the principle of universal jurisdiction, i.e., "any state may exercise
jurisdiction over an individual who commits certain heinous and widely condemned offenses, even
when no other recognized basis for jurisdiction exists."110 "The rationale behind this principle is that
the crime committed is so egregious that it is considered to be committed against all members of the
international community"111 and thus granting every State jurisdiction over the crime. 112

Therefore, even with the current lack of domestic legislation on the part of the US, it still has both the
doctrine of incorporation and universal jurisdiction to try these crimes.

Consequently, no matter how hard one insists, the ICC, as an international tribunal, found in the
Rome Statute is not declaratory of customary international law.

The first element of customary international law, i.e., "established, widespread, and consistent
practice on the part of States,"113 does not, under the premises, appear to be obtaining as reflected in
this simple reality: As of October 12, 2010, only 114114 States have ratified the Rome Statute,
subsequent to its coming into force eight (8) years earlier, or on July 1, 2002. The fact that 114
States out of a total of 194115 countries in the world, or roughly 58.76%, have ratified the Rome
Statute casts doubt on whether or not the perceived principles contained in the Statute have attained
the status of customary law and should be deemed as obligatory international law. The numbers
even tend to argue against the urgency of establishing international criminal courts envisioned in the
Rome Statute. Lest it be overlooked, the Philippines, judging by the action or inaction of its top
officials, does not even feel bound by the Rome Statute. Res ipsa loquitur. More than eight (8) years
have elapsed since the Philippine representative signed the Statute, but the treaty has not been
transmitted to the Senate for the ratification process.

And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the concurring
elements, thus:

Custom or customary international law means "a general and consistent practice of states followed
by them from a sense of legal obligation [opinio juris] x x x." This statement contains the two basic
elements of custom: the material factor, that is how the states behave, and the psychological factor
or subjective factor, that is, why they behave the way they do.

xxxx

The initial factor for determining the existence of custom is the actual behavior of states. This
includes several elements: duration, consistency, and generality of the practice of states.

The required duration can be either short or long. x x x

xxxx

Duration therefore is not the most important element. More important is the consistency and the
generality of the practice. x x x

xxxx
Once the existence of state practice has been established, it becomes necessary to determine
why states behave the way they do. Do states behave the way they do because they consider it
obligatory to behave thus or do they do it only as a matter of courtesy? Opinio juris, or the belief that
a certain form of behavior is obligatory, is what makes practice an international rule. Without it,
practice is not law.116 (Emphasis added.)

Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among the
different countries in the world that the prosecution of internationally recognized crimes of genocide,
etc. should be handled by a particular international criminal court.

Absent the widespread/consistent-practice-of-states factor, the second or the psychological element

must be deemed non-existent, for an inquiry on why states behave the way they do presupposes, in
the first place, that they are actually behaving, as a matter of settled and consistent practice, in a
certain manner. This implicitly requires belief that the practice in question is rendered obligatory by
the existence of a rule of law requiring it.117 Like the first element, the second element has likewise
not been shown to be present.

Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes
enumerated therein as evidenced by it requiring State consent. 118 Even further, the Rome Statute
specifically and unequivocally requires that: "This Statute is subject to ratification, acceptance or
approval by signatory States."119 These clearly negate the argument that such has already attained
customary status.

More importantly, an act of the executive branch with a foreign government must be afforded great
respect. The power to enter into executive agreements has long been recognized to be lodged with
the President. As We held in Neri v. Senate Committee on Accountability of Public Officers and
Investigations, "[t]he power to enter into an executive agreement is in essence an executive power.
This authority of the President to enter into executive agreements without the concurrence of the
Legislature has traditionally been recognized in Philippine jurisprudence." 120 The rationale behind this
principle is the inviolable doctrine of separation of powers among the legislative, executive and
judicial branches of the government. Thus, absent any clear contravention of the law, courts should
exercise utmost caution in declaring any executive agreement invalid.

In light of the above consideration, the position or view that the challenged RP-US Non-Surrender
Agreement ought to be in the form of a treaty, to be effective, has to be rejected.

WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED for lack
of merit. No costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

3.)
The South China Sea Arbitration (12 July 2016) PCA Case No.
2013-19
BY  R . R I D D E R H O F   ON  J U L Y 1 2 , 2 0 1 6   ·   L E A V E A C O M M E N T

Today, in the South China Sea Arbitration Award (12 July 2016) an arbitral
tribunal at The Hague ruled that China’s claim to historic rights to resources was
incompatible with the detailed allocation of rights and maritime zones in the UN
Convention on the Law of the Sea (UNCLOS). The Tribunal considered that prior
to the Convention, the waters of the South China Sea beyond the territorial sea
were legally part of the high seas, in which vessels from any State could freely
navigate and fish. Accordingly, the Tribunal concluded that historical navigation
and fishing by China in the waters of the South China Sea represented the exercise
of high seas freedoms, rather than a historic right, and that there was no evidence
that China had historically exercised exclusive control over the waters of the South
China Sea or prevented other States from exploiting their resources. See for more
information: the Peace Palace Library Special South China Sea Territorial Disputes

CNN Hongkong brought the news as: Court rules in favor of Philippines over
China Viewed as a decisive win for the Philippines, the ruling could heighten
friction in a region already bristling with tension, especially if it unleashes a
defiant reaction from China. The United States, which has been at odds with China
over freedom of navigation in the South China Sea, urged all parties "to avoid
provocative statements and actions." (by Katie Hunt, July 12, 2016)

The Chinese president, Xi Jinping, said China’s “territorial sovereignty and marine
rights” in the seas would not be affected by the ruling, which declared large areas
of the sea to be neutral international waters or the exclusive economic zones of
other countries. He insisted China was still “committed to resolving disputes” with
its neighbours.

The ‘Nine-Dash Line’ and China’s Claim to Historic Rights in the Maritime Areas
of the South China Sea

In its Award of 12 July 2016, the Tribunal considered the implications of China’s

‘nine-dash line’ and whether China has historic rights to resources in the South
China Sea beyond the limits of the maritime zones that it is entitled to pursuant to
the Convention. The Tribunal examined the history of the Convention and its
provisions concerning maritime zones and concluded that the Convention was
intended to comprehensively allocate the rights of States to maritime areas. The
Tribunal found that China’s claim to historic rights to resources was incompatible
with the detailed allocation of rights and maritime zones in the Convention and
concluded that, to the extent China had historic rights to resources in the waters of
the South China Sea, such rights were extinguished by the entry into force of the
Convention to the extent they were incompatible with the Convention’s system of
maritime zones.
The Tribunal also examined the historical record to determine whether China
actually had historic rights to resources in the South China Sea prior to the entry
into force of the Convention. The Tribunal noted that there is evidence that
Chinese navigators and fishermen, as well as those of other States, had historically
made use of the islands in the South China Sea, although the Tribunal emphasized
that it was not empowered to decide the question of sovereignty over the islands.
However, the Tribunal considered that prior to the Convention, the waters of the
South China Sea beond the territorial sea were legally part of the high seas, in
which vessels from any State could freely navigate and fish. Accordingly, the
Tribunal concluded that historical navigation and fishing by China in the waters of
the South China Sea represented the exercise of high seas freedoms, rather than a
historic right, and that there was no evidence that China had historically exercised
exclusive control over the waters of the South China Sea or prevented other States
from exploiting their resources.
Accordingly, the Tribunal concluded that, as between the Philippines and China,
there was no legal basis for China to claim historic rights to resources, in
excess of the rights provided for by the Convention, within the sea areas falling
within the ‘nine-dash line’

The Status of Features in the South China Sea

In its Award of 12 July 2016, the Tribunal considered the status of features in the
South China Sea and the entitlements to maritime areas that China could
potentially claim pursuant to the Convention. The Tribunal first undertook a
technical evaluation as to whether certain coral reefs claimed by China are or are
not above water at high tide. Under Articles 13 and 121 of the Convention, features
that are above water at high tide generate an entitlement to at least a 12 nautical
mile territorial sea, whereas features that are submerged at high tide generate no
entitlement to maritime zones. The Tribunal noted that many of the reefs in the
South China Sea have been heavily modified by recent land reclamation and
construction and recalled that the Convention classifies features on the basis of
their natural condition. The Tribunal appointed an expert hydrographer to assist it
in evaluating the Philippines’ technical evidence and relied heavily on archival
materials and historical hydrographic surveys in evaluating the features. The
Tribunal agreed with the Philippines that Scarborough Shoal, Johnson Reef,
Cuarteron Reef, and Fiery Cross Reef are high-tide features and that Subi Reef,
Hughes Reef, Mischief Reef, and Second Thomas Shoal were submerged at high
tide in their natural condition. However, the Tribunal disagreed with the
Philippines regarding the status of Gaven Reef (North) and McKennan Reef and
concluded that both are high tide

features.

The Tribunal then considered whether any of the features claimed by China could
generate an entitlement to maritime zones beyond 12 nautical miles. Under Article
121 of the Convention, islands generate an entitlement to an exclusive economic
zone of 200 nautical miles and to a continental shelf, but “[r]ocks which cannot
sustain human habitation or economic life of their own shall have no exclusive
economic zone or continental shelf.” The Tribunal noted that this provision was
closely linked to the expansion of coastal State jurisdiction with the creation of the
exclusive economic zone and was intended to prevent insignificant features from
generating large entitlements to maritime zones that would infringe on the
entitlements of inhabited territory or on the high seas and the area of the seabed
reserved for the common heritage of mankind. The Tribunal interpreted Article
121 and concluded that the entitlements of a feature depend on (a) the objective
capacity of a feature, (b) in its natural condition, to sustain either (c) a stable
community of people or (d) economic activity that is neither dependent on outside
resources nor purely extractive in nature.
The Tribunal noted that many of the features in the Spratly Islands are currently
controlled by one or another of the littoral States, which have constructed
installations and maintain personnel there.

The Tribunal concluded that the current presence of official personnel on many of
the features does not establish their capacity, in their natural condition, to sustain a
stable community of people and considered that historical evidence of habitation or
economic life was more relevant to the objective capacity of the features. The
Tribunal concluded that temporary use of the features by fishermen did not amount
to inhabitation by a stable community and that all of the historical economic
activity had been extractive in nature. Accordingly, the Tribunal concluded that all
of the high-tide features in the Spratly Islands (including, for example, Itu Aba,
Thitu, West York Island, Spratly Island, North-East Cay, South-West Cay) are
legally “rocks” that do not generate an exclusive economic zone or continental
shelf.

Chinese Activities in the South China Sea

In its Award of 12 July 2016, the Tribunal considered the lawfulness under the
Convention of various Chinese actions in the South China Sea.
Having found that Mischief Reef, Second Thomas Shoal and Reed Bank are
submerged at high tide, form part of the exclusive economic zone and continental
shelf of the Philippines, and are not overlapped by any possible entitlement of
China, the Tribunal concluded that the Convention is clear in allocating sovereign
rights to the Philippines with respect to sea areas in its exclusive economic zone.
The Tribunal found as a matter of fact that China had (a) interfered with Philippine
petroleum exploration at Reed Bank, (b) purported to prohibit fishing by Philippine
vessels within the Philippines’ exclusive economic zone, (c) protected and failed to
prevent Chinese fishermen from fishing within the Philippines’ exclusive
economic zone at Mischief Reef and Second Thomas Shoal, and (d) constructed
installations and artificial islands at Mischief Reef without the authorization of the
Philippines. The Tribunal therefore concluded that China had violated the
Philippines’ sovereign rights with respect to its exclusive economic zone and
continental shelf.
Although the Tribunal emphasized that it was not deciding sovereignty over
Scarborough Shoal, it found that China had violated its duty to respect to the
traditional fishing rights of Philippine fishermen by halting access to the Shoal
after May 2012. The Tribunal noted, however, that it would reach the same
conclusion with respect to the traditional fishing rights of Chinese fishermen if the
Philippines were to prevent fishing by Chinese nationals at Scarborough Shoal.

A significant aspect of the territorial dispute in the South China Sea concerns
China's construction in the area, particularly in the past few years. China has
engaged in large-scale land reclamation activities in seven reefs (Fiery Cross Reef,
Johnson South Reef, Cuarteron Reef, Gaven Reef, Hughes Reef, Mischief Reef
and Subi Reef) in the disputed Spratly Islands area of the South China Sea. These
projects have created seven new artificial land masses in the Spratlys, see for some
examples the following articles: Massive island-building and international
law and What China Has Been Building in the South China Sea

The Tribunal also considered the effect of China’s actions on the marine
environment. In doing so, the Tribunal was assisted by three independent experts
on coral reef biology who were appointed to assist it in evaluating the available
scientific evidence and the Philippines’ expert reports. The Tribunal found that
China’s recent large scale land reclamation and construction of artificial islands at
seven features in the Spratly Islands has caused severe harm to the coral reef
environment and that China has violated its obligation under Articles 192 and
194 of the Convention to preserve and protect the marine environment with
respect to fragile ecosystems and the habitat of depleted, threatened, or endangered
species.

Finally, the Tribunal considered the lawfulness of the conduct of Chinese law
enforcement vessels at Scarborough Shoal on two occasions in April and May
2012 when Chinese vessels had sought to physically obstruct Philippine vessels
from approaching or gaining entrance to the Shoal. The Tribunal found that
Chinese law enforcement vessels had repeatedly approached the Philippine vessels
at high speed and sought to cross ahead of them at close distances, creating serious
risk of collision and danger to Philippine ships and personnel. The Tribunal
concluded that China had breached its obligations under the Convention on the
International Regulations for Preventing Collisions at Sea, 1972, and Article 94 the
Convention concerning maritime safety.

Aggravation of the Dispute between the Parties

The Tribunal noted that China has (a) built a large artificial island on Mischief
Reef, a low-tide elevation located in the exclusive economic zone of the
Philippines; (b) caused permanent, irreparable harm to the coral reef ecosystem
and (c) permanently destroyed evidence of the natural condition of the features in
question. The Tribunal concluded that China had violated its obligations to refrain
from aggravating or extending the Parties’ disputes during the pendency of the
settlement process.

The Tribunal considered that the root of the disputes at issue in this arbitration lies
not in any intention on the part of China or the Philippines to infringe on the legal
rights of the other, but rather in fundamentally different understandings of their
respective rights under the Convention in the waters of the South China
Sea. 

[This unanimous Award has been issued today by the Tribunal constituted under
Annex VII to the United Nations Convention on the Law of the Sea (the
“Convention”) in the arbitration instituted by the Republic of the Philippines
against the People’s Republic of China].

Source : PCA Press Release: PCA Case No. 2013-19 - The South China Sea
Arbitration (The Republic of the Philippines v. The People's Republic of China)
"Although the Convention does contain provisions concerning the delimitation of
maritime boundaries, China made a declaration in 2006 to exclude maritime
boundary delimitation from its acceptance of compulsory dispute settlement,
something the Convention expressly permits for maritime boundaries and certain
other matters. Accordingly, the Tribunal has not been asked to, and does not
purport to, delimit any maritime boundary between the Parties or involving any
other State bordering on the South China Sea."

REPORT N° 11/07
INTERSTATE CASE 01/06
NICARAGUA v. COSTA RICA
March 8, 2007
 
 
I.          SUMMARY
 
1.        On February 6, 2006,  the Inter-American Commission on Human
Rights (hereinafter the "Inter-American Commission", “Commission” or
“IACHR”) received a communication from the State of Nicaragua which alleged
that the State of Costa Rica has committed violations of Articles 1(1) (Obligation
to respect rights), 8 (Right to a fair trial), 24 (Right to equal protection), and 25
(Right to judicial protection)  of the American Convention on Human Rights
(hereinafter “the Convention” or “the American Convention”); Articles 2, 7, 8, and
28 of the Universal Declaration of Human Rights; Articles II (Right to equality
before law) and XVIII (Right to a fair trial) of the American Declaration of the
Rights and Duties of Man; and Article 9 of the Inter-American Democratic
Charter, which refers to the elimination of all forms of discrimination, due to the
alleged failure on the part of the State of Costa Rica to fulfill its duty to ensure
protection for the human rights of the Nicaraguan migrant population under its
jurisdiction.
 
2.        By virtue of the fact that both the State of Costa Rica and the State of
Nicaragua deposited their declarations concerning recognition of the competence
of the Commission to receive and examine communications from one state against
another, on February 13, 2006, the IACHR decided to process the communication
in accordance with Articles 45 et seq. of the Convention and to transmit the
communication presented by the State of Nicaragua to the State of Costa Rica.
 
 3.        The Commission held a hearing on the case on July 18, 2006, in the
framework of its 125th Regular Session and placed itself at the disposal of the
parties with a view to reaching a friendly settlement. On September 7, 2006, owing
to the fact that the State of Costa Rica mentioned on that occasion that it was not
timely to initiate the friendly settlement procedure, the Inter-American
Commission, in keeping with Article 41(4) and (6) of its Rules of Procedure,
decided to conclude its intervention in the friendly settlement procedure and to
continue to process the interstate communication. 
 
4.        In light of the fact that the considerations on admissibility and merits
are closely connected in the case, the Commission decided, pursuant to Article
37(3) of its Rules of Procedure, to defer its treatment of admissibility until the
debate and decision on the merits, particularly since the Commission found from
its examination of the arguments and evidence presented by both States that the
allegation regarding the existence of a generalized practice of discrimination
against the Nicaraguan migrant population in Costa Rica was neither manifestly
groundless nor obviously out of order.
 
5.        The Commission considered it necessary to receive information from
both states on the merits of the allegations in order to determine if there is enough
evidence to verify the existence of a practice of discrimination tolerated by the
State of Costa Rica, to the point where it would be futile to attempt to exhaust the
remedies under domestic law. Having examined the arguments and evidence
presented during the merits stage of the case, the Commission finds that the
evidence presented by the State of Nicaragua is not sufficient to show the existence
of a generalized practice of discrimination against the Nicaraguan migrant
population in Costa Rica, and, therefore, it was not appropriate to assume that no
suitable and effective remedies exist to repair the violations alleged in this case.
 
6.        Accordingly, the Commission concludes that the allegations of the
Nicaraguan State concerning violation of the rights enshrined in Articles 1(1)
(Obligation to observe rights), 8 (Right to a fair trial), 24 (Right to equal
protection), and 25 (Right to judicial protection) of the American Convention on
Human Rights, are inadmissible under Articles 46 of the Convention and 31 of the
Rules of Procedure of the IACHR.
 
II.         PROCESSING BY THE COMMISSION
 
7.        On February 6, 2006, the Inter-American Commission received a
communication from the State of Nicaragua[1] “denouncing the State of Costa Rica
[…] for breach of the duty to offer due guarantees for the protection of human
rights contained in the American Convention on Human Rights and other
international treaties […] to the detriment of Nicaraguan citizens resident in Costa
Rica.”[2] The Commission registered the communication with the number PI 01/06
(Interstate Petition 01/06).
 
8.        On February 6, 2006, the Commission also received a note from the
Permanent Mission of Nicaragua to the Organization of American States (OAS),
[3]
 in which it enclosed a copy of the note sent to the Secretary General of the OAS,
which, according to the communication of the State of Nicaragua, was received by
the General Secretariat of the Organization on Friday, February 3, 2006.  The
purpose of the note to the Secretary General was to bring to his attention the
declaration of January 26, 2006,[4] in which the State of Nicaragua recognizes the
competence of the Inter-American Commission on Human Rights to receive and
examine communications in which a state party alleges that another state party has
committed a violation of a human right set forth in the Convention. Furthermore,
the note requests the Secretary General to transmit the contents of that declaration
to the other states parties to the Convention and the members of the Organization
of American States, to which end it enclosed a photocopy of Official Gazette of
Nicaragua (La Gaceta) No. 22 of January 26, 2006, in which the declaration was
published.
 
9.        On February 9, 2006, the Commission received a note from the
Permanent Mission of Nicaragua to the Organization of American States in which
it requested information about the subsequent processing of the interstate
communication. [5]
 
10.    On February 13, 2006, the Commission decided to transmit to the State
of Costa Rica the communication presented by the State of Nicaragua together
with its annexes, including the copy of the note addressed to the General
Secretariat by the State of Nicaragua bringing to its attention the declaration
concerning recognition of the competence of the Commission to receive and
examine interstate communications. On that occasion the Commission informed
both parties that the communication of the State of Nicaragua would be processed
in accordance with the procedure set down in Articles 45 et seq. of the American
Convention and, in keeping with Articles 30(3) and 48 of its Rules of Procedure,
requested the State of Costa Rica to present a reply to the interstate communication
within two months, counted from the date of transmission of said communication.
The note in which the instant interstate communication and its annexes were
conveyed to the State of Costa Rica was transmitted on February 15, 2006.
  
11.    On February 24, 2006, the State of Nicaragua sent a note to the
Commission to request it to rectify the steps taken in the proceeding in the instant
interstate communication inasmuch as the communication was not lodged under
Articles 45 et seq. of the Convention, but pursuant to Articles 48 to 50 of the
Convention. On that occasion, the State of Nicaragua mentioned that it “invokes,
for this case, the procedure determined by the Inter-American Court of Human
Rights in the Case of Viviana Gallardo et al, on which occasion Costa Rica, a state
party, filed an application against Costa Rica before the Inter-American Court of
Human Rights, which ordered said state to proceed in accordance with Articles 48
to 50 [of the Convention]”[6].
 
12.    On March 24, 2006, the State of Nicaragua sent a note to the
Commission in which it again asked the Commission to comply with its request
with respect to the processing of the instant interstate communication [7].
Furthermore, in a note of March 31, 2006, the State of Nicaragua requested the
Commission to rectify the processing of this communication since “the measures
adopted by the Executive Secretariat are not in keeping with the petition or
complaint of Nicaragua or with the Convention inasmuch as, before taking the
matter to the Court, the State of Nicaragua decided to comply with Articles 48 to
50, which are obligatory according to Article 61 of said Convention.” [8] The State
of Nicaragua reiterated this request in notes dated May 11, 2006,[9] May 16, 2006,
[10]
 and several other notes, as well as at the public hearings held by the
Commission on July 18 and October 18, 2006.
 
13.    On March 31, 2006, the Commission wrote to the State of Nicaragua
to inform it that at its 124th Session, the IACHR considered its submissions in
connection with the processing of the instant interstate communication and
resolved to await the reply of the State of Costa Rica in order then to adopt
decision on the arguments regarding the processing of the interstate
communication.
 
14.    On April 6, 2006, the State of Nicaragua sent a note to the Commission
requesting an explanation as to why it had been informed that the period granted to
the State of Costa Rica would expire on April 15, 2006, when the note in which the
Executive Secretariat transmitted the communication to the State of Costa Rica
was dated February 13, 2006.[11] On April 7, 2006, the Commission informed the
State of Nicaragua that the note of February 13, by which the communication
presented by the government of Nicaragua was brought to the attention of the
government of Costa Rica, was actually transmitted on February 15. Therefore, the
two-month period granted to the State of Costa Rica began to run on February 15
and was due to expire on April 15, 2006.
 
15.    On April 18[12] and April 20,[13] 2006, the State of Nicaragua wrote to
the Commission to request information as to whether or not State of Costa Rica
had presented its reply to this interstate communication in the requisite time and
manner.  On April 20, 2006, the State of Nicaragua again wrote to the
Commission, requesting that it proceed without delay and create the working group
mentioned in Article 36 of the Rules of Procedure of the IACHR, since it regarded
“the failure of the State of Costa Rica to answer the petition lodged by Nicaragua
as a submission thereto, as an acceptance of the serious allegations it contains.”[14]
 
16.    On April 20, 2006, the Commission wrote to the State of Nicaragua to
inform it that, as yet, the IACHR had received no response from the State of Costa
Rica. On April 25, 2006, the State of Nicaragua wrote to the Commission
reiterating its request that it declare its acceptance that the facts alleged by the
State of Nicaragua in its interstate communication were true.[15]
 
17.    On April 24, 2006, the State of Costa Rica presented to the
Commission a request for an extension of 15 days to submit its reply to this
communication.[16] On April 27, bearing in mind the importance of affording both
states the opportunity to express their opinion with respect to this interstate
communication, the Commission decided to grant the State of Costa Rica a single
extension of eight days to respond to the communication of the State of Nicaragua,
and set May 5, 2006, as the deadline for receiving the reply of the State of Costa
Rica.  This decision was communicated to both parties on April 27, 2006.
 
18.    On May 1, 2006, the State of Nicaragua submitted a note advising the
Commission of its position on the decision of the latter to grant an extension to the
government of Costa Rica, inasmuch as said request was "time-barred and after the
time limit."[17]  In that note, the Nicaraguan State requests the Commission to annul
the extension granted.  This position was reiterated by the Nicaraguan State in the
brief containing its observations on the reply of the State of Costa Rica to this
interstate communication.[18]
 
19.    On May 3, 2006, the Commission wrote to the State of Nicaragua to
inform it that the Commission and its Executive Secretariat had acted in an
absolutely objective and impartial manner in this case and that the Commission's
processing of this communication was in accordance with the Convention and the
Rules of Procedure of the IACHR.  Furthermore, the Commission noted that all the
Executive Secretariat's decisions on the processing of this interstate
communication are consulted with the Inter-American Commission, or with its
President, and have their full backing.
 
20.    On May 5, 2006, the State of Costa Rica delivered to the Commission
its reply to the interstate communication lodged against it by the Nicaraguan State.
[19]
 This reply was transmitted that same day to the State of Nicaragua, which was
given one month to present its observations. 
 
21.    On May 15, 2006, the Commission wrote to both States to invite them
to a hearing to be held during its 125th Session in Guatemala, in order to address
matters concerning the admissibility of this interstate communication.
 
22.    On May 26, 2006, the State of Nicaragua presented to the Commission
its observations on the reply of Costa Rica to the interstate communication. [20] The
Commission forwarded those observations to Costa Rica on May 31 and granted it
one month to submit its observations.
 
23.    On June 1, 2006, the State of Nicaragua sent a note to the Commission
with observations on the way in which the IACHR has processed this interstate
communication.[21] On June 7, 2006, the President of the Commission wrote to the
State of Nicaragua in reply to the notes requesting the Commission to rectify its
processing of this interstate communication, and informed it that the Commission
was of the opinion that the processing was in keeping with the American
Convention and the Rules of Procedure of the IACHR.
 
24.    The State of Nicaragua submitted additional information in briefs
dated May 9, 2006, and June 5, 2006.  For its part, on June 12, 2006, the State of
Costa Rica wrote to the Commission in order to bring to its attention the press
release issued by the Ministry of Foreign Affairs and Worship of Costa Rica on
June 7, 2006, in which the government of Costa Rica reiterated its profound
respect for the independence and autonomy of the Inter-American Commission.[22]
 
25.    On July 5, 2006, the State of Costa Rica sent the Commission its
response[23] to the request for observations that the Commission made to it on May
31, 2006, when it transmitted the observations of the State of Nicaragua to the
reply of the Costa Rican State to this interstate communication.  This response
from Costa Rica was conveyed to the State of Nicaragua that same day, July 5,
2006, and the latter was given one month to present its observations.
 
 26.    On July 18, 2006, the Inter-American Commission on Human Rights,
meeting at its 125th Session in Guatemala City, Guatemala, held a public hearing
to address issues pertaining to the admissibility of this interstate communication. 
(Copies of the minutes and audio recordings of this hearing were transmitted to
both states parties on August 22, 2006).  After the hearing, the President of the
Commission placed himself at the disposal of the parties for reaching a friendly
settlement.  The delegations of both parties agreed to give their reply to the
Commission after they had consulted with the appropriate authorities in their
respective States.  On July 19, the Commission ratified in writing, to both parties,
its decision to place itsealf at their disposal with a view to reaching a friendly
settlement of the matter, and granted the respective governments two weeks to
express their interest in initiating the procedure provided at Article 48(1)(f) of the
Convention.
 
27.    On July 26, 2006, the Inter-American Commission received an amicus
curiae brief from the Office of the Human Rights Ombudsman of Nicaragua in
connection with this interstate communication and, on July 27, 2006, transmitted
this document to both parties.
 
28.    On July 31, 2006, the Commission conveyed to Costa Rica the
documents that the State of Nicaragua presented at the hearing held on July 18,
2006 in Guatemala, which contained the written version of its arguments as well as
a series of annexes and evidentiary material.
 
29.    On August 2, 2006, the State of Nicaragua sent the Commission its
response to the request for observations made to it on July 5, 2006, [24] by the
Commission when it forwarded the response of the State of Costa Rica of June 29,
2006.
 
30.    On August 4, 2006 the Commission received a note dated July 24,
2006, in which the government of Nicaragua expressed its willingness to accept the
offer of the IACHR to initiate a friendly settlement procedure. [25] On August 7,
2006, the Commission received a note dated August 4, 2006, in which the
government of Costa Rica thanked the Commission for its offer but informed it
that it was not timely at this juncture to initiate the friendly settlement procedure,
bearing in mind the comments expressed after the hearing by the representatives of
the State of Nicaragua to different media organizations. [26]  On August 8, 2006, the
Commission forwarded to the State of Costa Rica the note in which the Nicaraguan
State accepted the invitation of the Commission to initiate a friendly settlement
procedure and also transmitted to the State of Nicaragua the note whereby the
Costa Rican State indicated that it was not timely at this juncture to initiate the
friendly settlement procedure.
 
31.    On August 10, 2006, the Commission received a note in which the
State of Costa Rica transmitted to the Commission in writing the arguments and
observations of its representatives at the hearing held in Guatemala on July 18,
2006;[27] the Commission forwarded said information to Nicaragua on August 11,
2006. In this connection, on August 23, 2006, the State of Nicaragua wrote to the
Commission requesting it to declare this brief from Costa Rica as not received
because it was time-barred and constituted an edited version of the oral
submissions at the hearing.[28] On September 7, 2006, the Commission informed
the State of Nicaragua that, pursuant to Article 48 (e) of the American Convention,
the IACHR may receive, if it so requests, oral or written statements from the
parties concerned at any time in the proceeding.  Furthermore, the Commission
drew attention to the fact that the audio from the hearing is part of the record in the
case and when it issues is decision on the matter, the Commission will take all of
the opinions expressed by both parties into consideration.
 
32.    On September 7, 2006, in view of the fact that the State of Costa Rica
said that it was not timely at this juncture to initiate a friendly settlement
procedure, the Inter-American Commission, in accordance with Article 41(4) and
(6) of its Rules of Procedure, decided to terminate its intervention in the friendly
settlement procedure and continue to process the interstate communication. At the
same time, bearing in mind the close connection between the considerations on
admissibility and merits in the case, the IACHR, in keeping with Article 37(3) of
its Rules of Procedure, decided to open the case, assign it number CI 01/06
(Interstate Case 01/06), and defer its treatment of admissibility until the debate and
decision on the merits.  Thus, in accordance with Article 38(1) of its Rules of
Procedure, the IACHR requested the State of Nicaragua to present its additional
observations on merits, and gave it two months to do so.
 
33.    On September 7, 2006, the Inter-American Commission also decided
to invite the two parties to a public hearing to address issues relating to merits in
the case. The hearing was held on October 18, 2006, in the framework of
Commission’s 126th Regular Session. (Copies of the minutes and audio recordings
of this hearing were transmitted to both states parties on November 9, 2006). 
During the hearing, the State of Costa Rica requested the Commission to suspend
the hearing on the grounds that the Commission was not competent to examine the
instant case because the State of Nicaragua had not formally and officially
recognized the competence of the IACHR to receive and examine communications
in which a state party alleges that another state party has committed a violation of a
human right set forth in the Convention.  On that occasion, the President of the
Commission informed both states parties that their arguments regarding the
competence of the Commission in connection with this case would be analyzed in
due course by the IACHR and requested that the hearing continue.
 
34.    On October 19, 2006, the State of Nicaragua wrote to the Commission
to confirm and submit documentation to show that on February 3, 2006, in a
communication addressed to the Secretary General of the Organization of
American States, it transmitted a note apprising him of the declaration concerning
recognition by the State of Nicaragua of the competence of the Commission, and
requesting him to transmit the contents of that declaration to the other states parties
to the Convention and the members of the Organization of American States.
[29]
 Said information was forwarded to the State of Costa Rica on October 23, 2006.
 
35.    On October 20, 2006, the State of Costa Rica wrote to the Commission
in order to furnish additional information connected with the Fifth Meeting of the
Binational Commission in the framework of which the Vice Ministers of Costa
Rica and Nicaragua resumed talks to strengthen ties of friendship, cooperation, and
joint development on migration and other relevant issues. [30]  Said information was
forwarded to the State of Nicaragua on October 23, 2006.
 
36.    On October 23, 2006, the Commission forwarded to the State of Costa
Rica the documents that the State of Nicaragua presented to the Commission at the
hearing held on October 18, 2006, which contained the written version of its
arguments as well as a series of annexes and evidentiary material.  That same day,
the Commission transmitted to the State of Nicaragua the documents that the State
of Costa Rica presented to the Commission at the hearing held on October 18,
2006, which contained the written version of its arguments as well as a series of
annexes and evidentiary material.
 
37.    On October 18, 2006, in the framework of the hearing, the State of
Nicaragua had requested the Commission for an extension to present its
observations on merits in the case.  On October 23, 2006, the Commission wrote to
both states parties to inform them that it had decided to grant a 15-day extension to
the State of Nicaragua so that it might present its arguments on merits in the
interstate case.  That period started to run on the date that the period originally
granted expired.  Accordingly, the deadline for presentation of submissions on
merits was put back until November 21, 2006.
 
 38.    On October 26, 2006, the Inter-American Commission wrote to the
Secretary General of the Organization of American States to inquire if the State of
Nicaragua deposited with the General Secretariat a declaration concerning
recognition of the competence of the Commission to receive and examine
communications in which a state party alleges that another state party has
committed a violation of a human right set forth in the Convention. The
Commission also asked the Secretary General to inform it if, in the event that it
had received said declaration, the General Secretariat transmitted a copy of it to the
member states in keeping with Article 45 of the American Convention on Human
Rights. In response to this inquiry, on October 27, 2006, the Director of the
Department of International Legal Affairs -which is under the immediate orders of
the Secretary General and supervises the Office of International Law- wrote to the
Inter-American Commission to inform it that "on February 6, 2006 the General
Secretariat received a note, which is enclosed, in which the Government of
Nicaragua informs that in a declaration of January 26, 2006, it added a third
paragraph to Declaration 49 of January 15, 1991, concerning the American
Convention on Human Rights, in which it recognized the competence of the
Commission to receive and examine communications in which a state party alleges
that another state party has committed a violation of a human right set forth in the
Convention. Today, in accordance with Article 45 of the American Convention on
Human Rights, a copy of that declaration will be transmitted to the member states
of the Organization.”[31]  On November 1, 2006, the Commission wrote to both
parties in this case in order to convey to them the inquiry made to the General
Secretariat as well as the reply to that inquiry. On that occasion, the Commission
informed the States of Nicaragua and Costa Rica of its decision to defer treatment
of this matter until the debate and decision on the merits of the case.
 
39.    On October 26, 2006 the Commission received a note from the State of
Costa Rica in which it reiterated its request that the IACHR declare itself
incompetent to take up the interstate communication and expressed its categorical
rejection of the competence of the Inter-American Commission to examine the
communication presented by the State of Nicaragua against it on February 6, 2006.
[32]
 The Commission forwarded this note to the State of Nicaragua on November 1.
 
40.    On November 3, 2006, the State of Costa Rica requested the
Commission for information on the progress of the instant case, in response to
which the Commission wrote to both states on the same day to advise them that
“on September 7, 2006 the Inter-American Commission, in accordance with
Article 37(3) of its Rules of Procedure, decided to defer its treatment of
admissibility until the debate and decision on merits. In that connection, pursuant
to Article 38(1) of its Rules of Procedure, the Commission requested the State of
Nicaragua to submit its observations on merits. The pertinent portions of those
observations would be transmitted to the State of Costa Rica so that it might
present its comments in accordance with the above-cited Article 38(1) of its Rules
of Procedure”.
 
41.    On November 6, the Commission received a note from the State of
Nicaragua in which the latter enclosed the Official Minutes of the Fifth Meeting of
the Costa Rica-Nicaragua Binational Commission and said that the minutes in
question are neither evidence nor constitute additional information on the present
interstate case.[33] The Commission conveyed this note to the State of Costa Rica on
November 8.
 
42.    On November 9, 2006, the Commission received a note from the State
of Nicaragua in which it reiterated that it duly deposited its declaration with the
General Secretariat of the Organization of American States in a timely manner and
recalled that the State of Costa Rica in its initial observations on the instant
interstate communication accepted that the State of Nicaragua brought said
declaration to the attention of the General Secretariat of the OAS on February 3,
2006, and, therefore, in its opinion, by virtue of the principle of openness, there
was no detriment to the State of Costa Rica. [34] This information was transmitted to
the State of Costa Rica on November 10, 2006.
 
43.    On November 21, 2006, the Commission received a note from the
State of Nicaragua in which its presented its observations on merits in the case [35].
This note was forwarded on November 22 to the State of Costa Rica, which was
granted two months to submit additional observations on merits in accordance with
Article 38 (1) of the Rules of Procedure of the IACHR.
 
44.    On January 19, 2007, the State of Costa Rica wrote to the Commission
to request an extension of 15 days to present its observations on the Nicaraguan
State’s arguments on merits.[36] That same day, the Commission notified both
parties of its decision to grant the requested extension of 15 days to the State of
Costa Rica, which extension would start to run on the date that the period
originally granted to the Costa Rican State to presents its submissions on merits
expired.  Accordingly, the deadline for presentation of arguments on merits was
put back until February 5, 2007.
 
45.    On January 16, 2007, the representatives of the State of Nicaragua
wrote to the Commission to request a hearing in the framework of the 127th
Session of the IACHR to address “questions of admissibility, merits and other
petitions” relating to the case.[37] In that respect, on January 29, 2007 the
Commission informed the State of Nicaragua that, having given consideration to
its request and bearing in mind the stage of the proceeding and the fact that the
Commission had twice held hearings on this case, it decided that it was not
appropriate on this occasion to hold the hearing requested. The Commission also
asked the State of Nicaragua to send any new information or facts that it deemed
relevant and were not included in the record of the case in reference.
 
46.    On February 2, 2007 the State of Costa Rica wrote to the Commission
to request that the IACHR declare, immediately and without delay, that it was not
competent to take up the instant case; declare the communication presented by the
State of Nicaragua to be obviously out of order and inadmissible; pronounce its
opinion on the preliminary objections submitted by the Costa Rican State; express
its position on the irregularities in the procedure; and clarify who, if any, were the
victims in the petition.[38] On February 6, 2007 the Commission informed the State
of Costa Rica that, as it had been notified on November 1, 2006, the IACHR
decided to defer its treatment of this matter until the debate and decision on merits.
That same day, February 6, the Commission transmitted the communication of the
State of Costa Rica to the State of Nicaragua, together with its annexes, and also
the reply that the Commission sent to the Costa Rican State.
 
47.    On February 5, 2007, the State of Costa Rica presented to the
Commission its observations on merits in the case,[39] which were transmitted to the
State of Nicaragua through its Permanent Mission to the OAS on February 6, 2007.
In that connection, February 7, 2007, the Commission received a note from the
State of Nicaragua in which the representatives of the State of Nicaragua said that
they did not consider themselves officially notified of the observations that the
State of Costa Rica presented on the merits of the matter because the fax by which
the Executive Secretariat transmitted said observations to the Nicaraguan State had
reached the Ministry of Foreign Affairs in an incomplete state. For its part, on
February 21, 2007, the Commission informed the State of Nicaragua that the
communication of February 5, 2007, in which the State of Costa Rica presented its
additional observations on the merits of the case, was transmitted to the Permanent
Mission of the Republic of Nicaragua to the Organization of American States on
February 6, 2007, and that, in accordance with the practice of the Inter-American
Commission, transmission to the Mission amounts to notification of the State. The
State of Nicaragua was also informed that the document was sent by courier to the
Ministry of Foreign Affairs of Nicaragua on February 7 and newly transmitted in
full by fax on February 8, 2007.
 
48.    On February 28th, 2007 the Commission received a note[40] by which
the State of Nicaragua presented its observations in relation to the merits position
of the State of Costa Rica. This note was transferred to the State of Costa Rica on
March 7th, 2007.
 
III.        POSITIONS OF THE PARTIES
 
49.    The interstate communication presented by the State of Nicaragua
alleges that the “persons injured by the human rights violations are the following:
 
           i.       Natividad Canda Mairena, a Nicaraguan national, brutally mauled by
two Rottweiler dogs, on November 10, 2005, at the entrance to the
cemetery in Lima, Cartago, Costa Rica. […]
         ii.        José Ariel Urbina Silva (sic),[41] murdered in Guácima, Alajuela, Costa
Rica, on December 4, 2005.
        iii.         José Antonio Martínez Urbina, grievously injured in the same
incident in which Urbina Silva (sic) was murdered; admitted to the
Men’s Surgical Ward of Mexico Hospital, San José, Costa Rica.
       iv.         Francisco Angulo García, grievously injured in the same incident in
which Urbina Silva (sic) was murdered; admitted to the Men’s
Surgical Ward of Alajuela Hospital, San José, Costa Rica.
         v.        Rito Antonio Obando, who sustained injuries by stoning in the same
incident in which Urbina Silva (sic) was murdered.
       vi.          Elder Angulo García, who sustained injuries by stoning in the same
incident in which Urbina Silva (sic) was murdered.
      vii.         The Nicaraguan migrant population in a vulnerable situation in Costa
Rica.”[42]
 
50.    The Commission notes that the interstate communication presented by
the State of Nicaragua refers to three separate situations, distinctions for which are
made in the descriptions of the positions of the parties, as follows:
 
           i.       The particular situation of Mr. Leopoldo Natividad Canda Mairena.
         ii.        The particular situation of Messrs. José Ariel Silva Urbina, José
Antonio Martínez Urbina, Francisco Angulo García, Rito Antonio
Obando, and Elder Angulo García.
        iii.         The situation of the Nicaraguan migrant population in a vulnerable
situation in Costa Rica.
  
A.         Position of the State of Nicaragua[43]
 
Position of the State of Nicaragua on the case of Mr. Leopoldo
Natividad Canda Mairena
 
51.    The State of Nicaragua alleges in its interstate communication that on
November 10, 2005, Mr. Leopoldo Natividad Canda Mairena had died, “brutally
mauled, in long and public agony, by two Rottweiler dogs in the workshop owned
by Mr. Fernando Zúñiga located at the entrance to the cemetery in Lima, Cartago,
Costa Rica”[44]. The State of Nicaragua alleges that the incident “lasted
approximately two hours and was witnessed by the owner of the workshop and the
two dogs, Mr. Fernando Zúñiga Mora; the security guard, Luis Hernández; the
head of the security company, Hugo Ceciliano Rodríguez; armed policemen,
firefighters, and curious onlookers.” The interstate communication also mentions
that Mr. Canda Mairena “bled to death shortly afterwards in Max Peralta Hospital,
with some 200 wounds in which bones were exposed, which caused his cruel and
inhuman demise.” The State of Nicaragua attaches, inter alia, video recordings of
the incident, the forensic medical report issued on December 5, 2005, by the
Forensic Pathology Section of the Forensic Medicine Department of the Judicial
Investigation Agency of Nicaragua (OIJ), as well as photographs taken at the
autopsy.
 
52.    The Nicaraguan State adds in its interstate communication that the
policemen who witnessed the incident "simply acted as bystanders and, worse yet,
if proven, prevented, according to an eyewitness, the intervention of third parties to
aid the victim […]. Testimonies given to the press and a video recording of the
events, which was repeatedly broadcast in both Nicaragua and Costa Rica, suggest
that the armed policeman had the opportunity to rescue Canda and even to shoot
the dogs, since the animals withdrew to a sufficient distance to enable them to do
so without endangering the victim of the attack.” The interstate communication
presented by the State of Nicaragua also cites a Report of the Judicial Investigation
Agency, according to which the death of Mr. Canda Mairena “could have been
averted if the policeman who were at the emergency had seized at least two
opportunities that arose before the firefighters acted using a fire hose.” [45] The State
of Nicaragua alleges that, in spite of the foregoing, only two of the eight policemen
have been prosecuted in connection with this case.
 
 53.    The State of Nicaragua argues that “the merely passive presence of
armed police, as the authority of the State of Costa Rica at the incident, the delay
of the OIJ in reporting its findings on the matter, [46] the public statements of
government authorities playing down the incident, the failure to press charges, and
the absence of a proceeding before a competent tribunal clearly show that the rules
of due process are being violated and, in particular, that there has been a delay of
justice in a case which, given its dimensions and complexity, warrants rapid
responses and effective remedies from State of Costa Rica.” [47] Therefore, the State
of Nicaragua alleges violation by the Costa Rican State of Articles 8 and 25 of the
American Convention (Judicial Protection), due to the fact that the “OIJ allowed
more than 70 days to pass before it presented the requisite report on the supposed
investigations that it has carried out as a result of the human rights violations in
which Mr. Natividad Canda Mairena lost his life. [It further argues that] the
inexplicable delay in presenting the report and the additional six months granted to
the Office of the Prosecutor to formally press criminal charges against those
responsible constitute a delay of justice.”[48]
 
54.    The State of Nicaragua also claims that Mr. Natividad Canda Mairena
has been the victim of the discrimination to which Nicaraguan migrants who reside
in Costa Rica are subjected. To show that the persons who witnessed the incident
knew that Mr. Canda Mairena was Nicaraguan, the State cites a press clipping
from Nuevo Diario newspaper of February 21, 2006, in which Mrs. Cipriano
Mercedes Canda Mairena, says that her brother, Natividad, was the victim of an act
of revenge by the security guard at Mr. Zúñiga’s workshop, Guillermo Hernández,
who is the father-in-law of another sibling who resides in Costa Rica, Regino
Antonio Canda Mairena.”[49]
 
55.    As an annex to the interstate communication, the State of Nicaragua
provided a video to show what happened to Mr. Canda Mairena and the alleged
passive reaction of the policemen. The video contains recordings of a series of
television news programs broadcast in Nicaragua and Costa Rica.  The selected
recordings show how different television media covered the news of Mr. Natividad
Canda Mairena’s death, showing images of the attack, as well as opinions of
people in both countries expressed through telephone calls made by viewers and in
live interviews.
 
56.    To demonstrate that the alleged discrimination occurred both at the
time of the incident and during the processing of the case by the Costa Rican
judicial authorities, the State of Nicaragua mentioned by way of an example a
similar case that occurred on January 25, 2006, in which a Costa Rican minor aged
 seven (Jorshan Brown) was attacked by Rottweiler dogs in Puerto Limón, Costa
Rica. In this incident, according to the State of Nicaragua, "the dog involved was
promptly destroyed.” Furthermore, the State of Nicaragua mentions that in this
case the medical report was produced less than 72 hours after the attack, whereas
in the case of Mr. Natividad Canda Mairena there was a delay of almost 2 months
before the forensics report was included in the case file.  Accordingly, the State of
Nicaragua alleges violation by the State of Costa Rica of Article 24 of the
American Convention (Right to equal protection), and states as its reasoning that
“despite the seriousness of the incident, the treatment it received was different to
that given, for example, to the case of the boy Jorshan Brown.”[50]
 
57.    Another example that purportedly demonstrates the discrimination of
which Mr. Canda Mairena was allegedly a victim, according to the State of
Nicaragua, is the fact that "the police of the State of Costa Rica acted differently in
the early hours of October 26, 2006, when the Costa Rican citizen, Cristian
Rodríguez Nazareno, attempted to enter the workshop owned by Mr. Fernando
Zúñiga, at the entrance to the cemetery in La Lima, Cartago, in circumstances
similar to those of the Canda Mairena case; on this occasion, they shot at the
Rottweiler dogs, killing one of them, and, so, saved his life, which they could have
done in the case of the aforementioned Mr. Canda, who unfortunately died as a
result of the attack by those dogs because the State police patently acted with
passive negligence.”[51]
 
58.    In its arguments on merits in the case, the State of Nicaragua drew
attention to the fact that in this case "approximately one year has passed and the
Office of the Prosecutor has only indicted two policeman, leaving uncharged six
others who also committed offences by omission because they merely stood by as
witnesses to the horrendous incident in which Natividad Canda was attacked by
two Rottweiler dogs, to the satisfaction of the security guard and of the owner of
the workshop and the dogs.”[52] Based on the foregoing, in its interstate
communication the State of Nicaragua contends that “in the particular
circumstances of this case […] there has been a delay of justice.”[53]
 
Position of the State of Nicaragua on the case of Messrs. José Ariel Silva
Urbina, José Antonio Martínez Urbina, Francisco Angulo García, Rito
Antonio Obando and Elder Angulo García
 
59.    As regards Messrs. José Ariel Silva Urbina, José Antonio Martínez
Urbina, Francisco Angulo García, Rito Antonio Obando and Elder Angulo García,
all of whom are Nicaraguan citizens originating from the Department of Boaco, the
 State of Nicaragua alleges that on December 4, 2005, they were in a bar called Los
Espejos, located in Guácima, Alajuela, in Costa Rica. According to the petition,
there were some 25 to 30 other persons, presumably Costa Ricans, also in the bar. 
In its submissions, the State of Nicaragua described what happened in the bar as
follows: "At approximately between 11:00 and 12:00 at night, without reason a
group of Costa Ricans launched a verbal attack with xenophobic remarks against
the six Nicaraguans who were in the place, and began to insult them with coarse
and offensive comments that caused feelings to run high because at least a sizeable
portion of the persons present began to hurl abuse and encouraged the insults
started by the group in question. For that reason, the six Nicaraguans decided to
vacate the bar and leave the area. The first to leave the bar was José Ariel Urbina
Silva (sic), a situation of which the group that had started the insults took
advantage to verbally abuse the young Nicaraguan, who responded verbally. The
aggressors in the bar moved from words to stones and for that reason the
Nicaraguans opted to withdraw.  Their assailants pursued them and two individuals
caught up with them; one of them lunged at José Ariel Urbina Silva (sic) and,
subsequently, caught hold of José Antonio Martínez Urbina. Another individual,
holding a knife, attempted to attack Elder José Angulo García but his brother,
Francisco Angulo García intervened in his defense and was injured by this
attacker. Even though they had been assaulted with a knife, they were stoned by
the crowd that surrounded them, without anyone coming to their defense or aid.”[54]
 
60.    Later, in the framework of the public hearing held on July 18 in
Guatemala, the State of Nicaragua furnished a video recording that contained a
behind-the-scenes account of the events that occurred outside Los Espejos bar in
Guácima, Alajuela after the Nicaraguan citizens decided to leave, presumably in
reaction to the insults and verbal abuse prompted by their nationality. The video
includes an interview with one of the victims, Mr. José Antonio Martínez, who
describes how he was attacked in the street and confirms the version of the events
that the State of Nicaragua presented to the Commission.
 
61.    According to the interstate communication presented by the State of
Nicaragua, as a consequence of the attack, Mr. José Ariel Silva Urbina died; Mr.
José Antonio Martínez Urbina was admitted to hospital and treated for different
injuries including some caused by a cutting and stabbing weapon; Mr. Francisco
Angulo García was admitted to hospital and treated for multiple wounds caused by
a cutting and stabbing weapon; while Messrs. Rito Antonio Obando and Elder
Angulo García sustained minor injuries caused by impact of stones.  The State of
Nicaragua also mentions in the interstate communication that Mr. Francisco
 Angulo García was admitted to the Psychiatric Hospital because of problems
assimilating what happened.
 
62.    As to the reasons that allegedly prompted this incident, the State of
Nicaragua argues that it may be concluded from the testimonies of the four
surviving victims that the incident that occurred on December 4, 2005, "constitutes
a xenophobic attack inasmuch as it arose from the insults and comments
concerning nationality, an incident that cannot be considered an individual attack
given the clear participation of 25 to 30 persons, presumably Costa Ricans, who
were at the scene of the incident."  The Nicaraguan State adds that the assailants
were aware of the nationality of the victims, who mentioned in their testimonies
that some of the persons at the scene knew them.  Accordingly, the State of
Nicaragua categorizes what happened as hate crimes.
 
63.    The State of Nicaragua alleges violation on the part of the Costa Rican
state of Articles 8 and 25 of the American Convention as a consequence of the fact
that the "inexplicable delay" in the presentation of the report of the judicial
investigation agency and the granting of an additional six months to the Office of
the Prosecutor to formally charge those responsible constitute a delay of justice.[55] 
Furthermore, the State of Costa Rica claims that in addition to a delay of justice
there have also been procedural faults, in as much as the person allegedly
responsible for the death of José Ariel Silva Urbina has reportedly been released as
a result of a precautionary measure.
 
Position of the State of Nicaragua on the Nicaraguan migrant
population in a vulnerable situation in Costa Rica
 
64.    As regards the Nicaraguan migrant population in Costa Rica, the State
of Nicaragua argues that "the circumstances that have surrounded the case of
Natividad Canda, as well as the murder of José Ariel Urbina and the attacks on
Francisco Angulo García, Elder José Angulo García, José Antonio Martínez
Urbina, Rito Obando and other companions, are merely outward symptoms of a
much deeper underlying situation rooted in sentiments of xenophobia, intolerance,
and rejection that reign in some sectors in Costa Rica, despite the solidarity and
generosity that prevails in the vast majority of the noble Costa Rican people.”[56]
 
65.    In that connection, the State of Nicaragua alleges that the deaths
of Messrs. Natividad Canda Mairena and José Ariel Silva Urbina are consequences
of the prevailing absence of guarantees in Costa Rica arising from visible attitudes
of xenophobia and discrimination.[57] It further alleges that these acts "generated a
 situation that demonstrates that the phenomenon goes further than might seem at
first sight, since opinions and actions have emerged that demonstrate deep-rooted
discrimination and xenophobia in Costa Rica.”[58]. The Nicaraguan State adds that
the "Canda case and, in particular, the Urbina Silva (sic) case, are two incidents of
human rights violations that, while certainly very important, are nonetheless
symptomatic of the climate of xenophobia that has existed and been accepted in
Costa Rica for many years, as well as of the failure of the Costa Rican authorities
to take steps against it.  Accordingly, even had the Canda case not occurred, it is
the treatment of this case and of a subsequent hate crime that resulted from it and
from the climate of xenophobia that Costa Rica has failed to tackle properly, that
constitutes a violation of human rights.”[59]
 
66.    The State of Nicaragua adds that "if the judicial authorities of Costa
Rica had acted with urgency in the Canda case, which was rife with discrimination,
xenophobia, and impunity, the Guácima lynching would surely have been avoided
as would any other acts that may come about as a result of the impunity of those
responsible for injuries originated by xenophobia and discrimination.  The danger
of not taking exemplary measures to counter the climate of xenophobia is that
more hate crimes could be committed against Nicaraguans.” [60] The Nicaraguan
State also says that "the failure to adopt effective measures to ensure prompt
justice and prevent impunity stimulates, at least indirectly, greater discrimination
on the basis of nationality, which encourages intolerant sectors to continue their
campaign of xenophobia and discrimination, exposing the migrant population to
greater peril and risk.”[61]
 
67.    According to the State of Nicaragua, “the inaction of the justice system
and of the State itself in the investigation, prosecution, and punishment of those
responsible in the horrific death of Natividad Canda Mairena, which occurred in a
context of xenophobia that prevails in certain sectors in Costa Rica […] intensified
the climate of intolerance and discrimination in certain segments of Costa Rican
society, which led to an atmosphere of “permissiveness” toward any attack on a
Nicaraguan.”[62]
 
68.    The State of Nicaragua argues that the State of Costa Rica failed its
obligation to ensure rights contained in Article 1(1) of the American Convention
(Obligation to respect rights), manifested by the, at least remiss presence of armed
police officers, who failed to protect the rights to life, humane treatment and
security. The armed police officers -agents of the Costa Rican state- witnessed the
horrific killing of Mr. Canda Mairena and did not shoot the dogs; in other words,
the lives of the latter were given priority over the life of a human being. The failure
 to adopt effective measures to ensure that justice is promptly served and to avoid
impunity stimulates, at least indirectly, greater discrimination for reasons of
nationality, which encourages intolerant sectors to continue their campaign of
xenophobia and discrimination, exposing the migrant population to greater
dangers.”[63]
 
69.    To demonstrate that the cases of Messrs. Canda Mairena and Silva
Urbina are not isolated incidents, the State of Nicaragua, in a note of June 5, 2006,
drew the Commission's attention to another case that, according to its arguments, is
an example of the delay of justice and impunity that exists in Costa Rica.  The case
in question concerns Ms. María José González Quintanilla, a Nicaraguan woman
who, according to the enclosed press clipping, reportedly brought charges of sexual
abuse against the Administrator of Calle Real Prison in Liberia, Costa Rica, where
Ms. González Quintanilla was an inmate and worked as an assistant in the kitchen. 
The State of Nicaragua says that this trial is being held without due process
guarantees.[64] Furthermore, in its brief on merits, the Nicaraguan State makes
reference to another case which it points to as an example of discrimination and
xenophobia.  The case is that of Mr. Roger López González, “who, on September
25 of the year in progress, presented himself at the Consulate General of
Nicaragua, bearing Costa Rican Resident’s Card 270-116248-51245, and, in a clear
state of alarm reported that he had been the victim of attacks and death threats from
a Costa Rican citizen in an incident that occurred in La Aurora, Heredia, Costa
Rica, Mr. López Rodríguez claimed, had been reported to the offices of the OIJ,
according to record 06-001969-0059-PE of the Office of the Assistant Prosecutor
for Heredia. In light of the obvious danger and insecurity which Mr. López said he
was in at that time, he said that he had decided to put up the property he owned for
sale due to the fact that he could not continue to live in Costa Rica because of the
constant threats, not only to himself, but also to his family, whom he had had to
move to Nicaragua for safety. Mr López has since left Costa Rica after 17 years of
legal residence.”[65]
 
70.    According to the State of Nicaragua, “in certain sectors there has arisen
a marked climate of verbal violence, intolerance, and xenophobia as is apparent
from publications produced by groups interested in stirring up hate and even
violence against Nicaraguans in Costa Rica.”[66]. To shed light on the situation of
supposed xenophobia that is allegedly encouraged in Costa Rica, the State of
Nicaragua mentions in its interstate communication that on the days following the
death of Mr. Canda Mairena a number of  “jokes” and xenophobic displays
appeared on different Internet web sites. By way of an example it mentions an
electronic mail message dated November 11, 2005, which says, "Due to the recent
 events of bravery and heroism that showed that the dog is the Costa Rican's best
friend (today more than ever), all of the below signed wish to present to the
legislative assembly a bill to change the yiguirro [the national bird of Costa Rica]
thanks to the heroic dogs Oso and Hunter “Rottweller” (sic), who took the
initiative, cast fear aside, and redefined Costa Rican culture and valor against the
invasion of the neighbors to the north. We propose that each Costa Rican family
(not crossbred) should have two dogs.  That the nicas should be vaccinated against
rabies (for the sake of the dogs’ health). That the statute of Juan Santamaría be
replaced with one of the Rottweilers that are the new national heroes, that a
monument be erected in the Park of la Merced and that a demonstration be held
every weekend led by these two puppies and anyone else who can come to La
Carpio. Be a Costa Rican, take courage and pass on this message.” [67] The interstate
communication presented by Nicaragua cited several other electronic mail
messages in this vein.  Furthermore, among the documents presented in the
interstate communication, the Nicaraguan State includes a photograph reportedly
circulated in Costa Rica, which shows a Rottweiler next to the national flag of
Costa Rica, with the following legend: Hail to Our National Hero. O, noble dog,
your Rottweiler breed, is an expression of love for us, as long as your eyes are on a
nica, you will always be our national hero.”
 
71.    In two videos provided by the State of Nicaragua (one presented with
the interstate communication, and the other at the hearing of July 18 in Guatemala)
there are also references to xenophobic electronic mail messages and jokes against
Nicaraguans inspired by the attack on Mr. Canda Mairena. Through the images and
the various interviews contained in the videos, the State of Nicaragua describes the
feeling of vulnerability of Nicaraguan citizens in Costa Rica, the discrimination
they experience on a daily basis, and, in particular, their employment opportunities
and working conditions.
 
72.    The State of Nicaragua has also attached to its interstate
communication a comic strip published in Prensa Libre newspaper of November
23, 2005, which says: "Nica congressmen reportedly coming to talk about dog
attacks. Set the dogs on them and don't let them go!” [68] in similar fashion,
according to the Nicaraguan press,[69] jokes such as the following allegedly
circulated in Costa Rica: “A Rottweiler came down from heaven and ate a nica.
Wouldn’t it be nice if 600,000 came down to clean up Costa Rica?;” “Why did
they turn the hoses on the dogs? To wash away the bad taste.” The State of
Nicaragua also reports that leaflets with a photograph of the dogs were circulated
for the presidential elections, as were fake bank bills with a photograph image of
the dogs.
 
73.    Nicaragua has also presented a series of documents designed to show
that the generalized perception of the Nicaraguan migrant population in Costa Rica
is discriminatory.  In this connection, the State of Nicaragua presented the findings
of a poll conducted by the Institute of Social Studies on Population (IDESPO) of
the Universidad Nacional de Costa Rica. The poll was reportedly carried out by
telephone, covered 600 Costa Ricans aged 18 or over from all over the country
between August 3 and 10, 2005, and had a margin of error of 4% and a level of
significance of 95%. According to the results of the poll, 88% of Costa Ricans
admit that Nicaraguan immigrants suffer discrimination.[70]
 
74.    The State of Nicaragua also drew the attention of the Commission to
the results of a nationwide telephone poll conducted by the Institute of Social
Studies on Population of the Faculty of Social Sciences of the Universidad
Nacional in November, 2003,[71] to examine the perceptions of Costa Ricans with
respect to Nicaraguan immigration.  It was concluded from the survey that Costa
Ricans perceive Nicaraguans as hard-working people from humble backgrounds,
and the vast majority rated their work as important; however, there was also a large
proportion of the Costa Ricans polled (33%) who do not regard Nicaraguan labor
as necessary because it is harmful to, and means fewer jobs, for Costa Rican
workers. According to the poll, Costa Ricans perceive Nicaraguans as ungrateful
people with bad habits. According to this report, only half of the Costa Ricans
polled consider that Nicaraguans have equal rights as persons, and they large
majority (74%) are degrees that the Nicaraguan population suffers discrimination. 
Furthermore, according to the poll one of the aspects that most concerns Costa
Ricans is their impact on social security in the country, in particular with respect to
education and health.  Thus, 79% of those polled consider that the Nicaraguan
population poses a risk to the country’s social security system.
 
75.    The State of Nicaragua has also presented to the Commission a report
of June 2006 likewise prepared by the Institute of Social Studies on Population of
the Faculty of Social Sciences of the Universidad Nacional.[72] According to this
report, which is based on interviews conducted in March 2006, 77% of the persons
thought that there was "much" discrimination against immigrants of Nicaraguan
origin in Costa Rica, while 71% considered that there was little or no
discrimination against persons of Colombian origin.  According to this report,
Costa Ricans do not consider that discrimination against immigrants targets all
immigrant groups equally. When the Costa Rican population was consulted about
what rights immigrants should enjoy, more of those interviewed were in favor of
Colombians, rather than Nicaraguans, having access and exercising the rights to
 public education (83.0% v. 81.9%), public health care services (73.3% v. 68.7%),
bank loans (66.3% v. 62%), obtaining nationality (65.6% v. 58.1%) organizing into
groups or associations to protect their rights (57.3% v. 51.0%) and bringing their
families to live with them (48.5% v. 37.5%).
 
76.    The State of Nicaragua also offers as evidence the book “Otros
Amenazantes. Los nicaragüenses y la formación de identidades nacionales in
Costa Rica”, by the Costa Rican sociologist Carlos Sandoval García. [73] The book
constitutes a study of how the media have presented the Nicaraguan community as
a "problem" and a "threat" and examines how this media representation has to do
with the traditional creation of the Nicaraguan as the “other” in the Costa Rican
imagery. Accordingly, the book explores how the historical representations of
Costa Rican nationality over recent centuries have underscored the "unique" nature
of Costa Rica and also identify it with certain ethnic attributes, such as being
inhabited by the most "white” population in Central America, which also speaks
the "best" Spanish in the region, while historically Nicaraguans have been
characterized for their "different" Spanish and dark skin.  The book offers
numerous examples of how the Nicaraguan population in Costa Rica is frequently
"racialized" and criminalized, and analyzes different ways in which Nicaraguan
women have been associated with prostitution.  It also analyzes how jokes play a
key role in the translation of “racialized” discourse to conventional wisdom and
daily life. The author mentions that immigrants are perceived in Costa Rica as
threats to the national identity, as the persons that commit most crimes, and as
being responsible for exhausting the resources of the healthcare system.  Moreover,
according to this book, the health authorities in Costa Rica attribute certain
diseases exclusively to the presence of "foreigners" and not to the health conditions
that exist in the country.
 
77.    The State of Nicaragua also bases its arguments on a document
prepared by José Luis Rocha Gómez, a consultant for the Latin American and
Caribbean Demographic Center (CELADE), published by the United Nations,
[74]
 which analyzes the attitudes toward Nicaraguan migrants and migration policies
of officials in positions of influence in both Costa Rica and Nicaragua, and offers
recommendations on migration policy designed to reduce the adverse effects and
enhance the positive consequences of migration.  The document offers an analysis
according to which the perception of government officials in Nicaragua is that as
the country of origin they are the main losers because it causes a major drain of
human capital, increasing numbers of families are broken up, and the human rights
of Nicaraguans abroad are not observed. On the other hand, the perception of the
Costa Rican authorities, according to this study, is that migration has a negative
 impact on the labor market, on social and immigration services, and on national
security.  According to this document, while for Nicaraguans the problem of
irregular immigrants is the fault of restrictive policies in Costa Rica, for Costa
Ricans immigrant irregularity stems from the desire to evade controls. 
Furthermore, the study finds that while agencies in Costa Rica consider that
Nicaragua abandons its nationals abroad, the Nicaraguan authorities take
satisfaction from their progress.
 
78.    The State of Nicaragua adds that the perception of Costa Rican citizens
is that the violence and lack of security that exist in their country are caused by the
Nicaraguans who live there.  However, the Nicaraguan State argues that it is not
true that Nicaraguan migrants are responsible for the majority of crime in Costa
Rica and, to support this argument, cites in its interstate communication the First
National Human Development Report (NHDR) prepared by the United Nations
Development Programme (UNDP)  in 2005, according to which, the number of
foreigners serving prison sentences totals less than 10% of the prison population,
and Nicaraguans account for less than 6% of convicted prisoners.[75]
 
79.    In addition, the State of Nicaragua says that the press in Costa Rica has
attributed to the Nicaraguan migrant population partial responsibility for the
situation of the Social Security Fund, contributing to a climate of animosity toward
migrants, and it adds, in relation to the Social Security health care services, that a
practice  exists in Costa Rica where, if a person is suspected of being an illegal,
rather than receiving assistance, they are reported to the Office of Migration and
Nationality, to be subjected to the full penalty of the law.[76]
 
80.    The Nicaraguan State also makes reference to a series of studies by
different agencies from which it might be concluded that there is
generalized discrimination in Costa Rica against the Nicaraguan migrant
population. In this respect, the State of Nicaragua cites in its interstate
communication an associated press report of August 22, 2005, which describes the
conclusions of a joint study released by the Paniamor Foundation and Save the
Children. According to the press report, the aforementioned organizations are
concerned “at the discrimination against migrant children, especially of
Nicaraguan origin, in education and health as well as in terms of participation.
They are excluded from the exercise of those rights. […] In order to enter the
education system they must have certificates of studies from Nicaragua and
approval from the Ministry of Foreign Affairs, which they must present to the
Ministry of Education.”[77] 
 
 81.    The State of Nicaragua also attaches to its interstate communication
the concluding observations of the Committee on the Rights of the Child on the
third periodic report of Costa Rica submitted under Article 44 of the Convention
on the Rights of the Child. On that occasion, the Committee on the Rights of the
Child recommended that the State of Costa Rica give particular attention to
children belonging to vulnerable groups, i.e. indigenous populations, migrants, and
those living in rural areas, and that funding be identified for programmes aiming at
alleviating their disadvantage. Furthermore, the Committee mentioned its concern
“at the limited access of indigenous children, migrant children and those living in
rural areas, to basic education and health services, and at their low standard of
living. The Committee also regretted the absence of information in the State
party’s report on the implementation of its previous recommendation regarding the
protection of children of migrant families in irregular situations against
discrimination. […] The Committee is concerned at information received whereby
migrant children are still neither eligible for scholarships, nor entitled to take part
in students’ councils.”[78]
 
82.    The Nicaraguan State also presents a report prepared by Ms. Adilia
Eva Solís, which was delivered to the Commission at a hearing held on March 4,
2005.[79] The report describes the difficulties encountered in Costa Rica by
undocumented migrants, such as the requirements set by the Educational
Development Directorates, which prevent the enrollment of children and
adolescents if they or their parents do not have a temporary or permanent residence
permit, in addition to the overexploitation of undocumented migrants in the
workplace. Furthermore, according to the report, even though by disposition of the
Costa Rican Social Security Fund medical services are to be provided to anyone
who needs them, regardless of their migratory status, staff of the Costa Rican
Social Security Fund report to the General Directorate of Immigration persons who
go for a medical consultation and are found not to have a legal residence permit. 
The report also recognizes the efforts of the Costa Rican State to ensure the basic
rights of migrants, such as the creation of the Office of the Ombudsman and the
design of public healthcare policies for the migrant population. The aforesaid
report also notes that the Constitutional Court has disposed of a large number of
actions for amparo against the requirement that boys and girls have a residence
permit in order to be able to enroll in school, and has admitted such actions, ruling
that such a requirement violates the right of children to education.
 
83.    The State of Nicaragua also attached to its observations on merits in
this case a report that the Rapporteurship on Migrant Workers and their Families of
the IACHR published based on its visits to Costa Rica in 2001 and 2002.  In its
 presentation, the State of Nicaragua cites this report and makes particular reference
to the situation of discrimination against migrant workers, especially Nicaraguans,
arising from practices in the general population.  The State asserts based on the
report the existence of discriminatory attitudes that consist of mistreatment by
State officials; harassment, suspicion, and stigmatization by the local population;
and abuse and discrimination in the labor market, in particular as regards wages
and benefits. The State of Nicaragua concurs with the final observations and
recommendations of the Rapporteurship, which mention that in Costa Rica
situations exist that violate the human rights of migrant workers in different
spheres, and note the existence of “a certain degree of discrimination against
persons of Nicaraguan origin.” The Rapporteur also called for educational
campaigns to be organized to inculcate tolerance and a sense of the value of
immigrants’ contributions to Costa Rican society, as well as for steps to be taken to
impede labor-related abuses. It also exhorted Costa Rica to carry out international
commitments on refugees and torture victims. Furthermore, it urged Costa Rica to
revise the immigration legislation to ensure that it not discriminate among migrant
workers based on their social status. It also called on the Costa Rican government
to apply the corresponding procedure to each person, based on the distinctions
drawn in the national legislation among rejection, deportation, and expulsion. In
turn it urged the State of Costa Rica to ensure the right to due process in each
immigration proceeding, inform migrant workers about the legislation in place on
these matters, and guarantee consular assistance. Finally, the Rapporteur urged the
State of Costa Rica “to head up a campaign to build a cohesive society in which
the human rights of all inhabitants of Costa Rica, including migrant workers, are
respected and guaranteed.”
 
84.    The Report of the Rapporteurship that the Nicaraguan State cites as a
basis for its arguments, also recognizes the fundamental importance of highly
positive practices adopted by the State of Costa Rica that benefit migrant workers
and their families, such as the 1998 immigration amnesty and the agreements the
Government of Costa Rica signed with Nicaragua and which are aimed not only at
regularizing migratory flows, but also seek mechanisms to address the
vulnerability of these persons, as well making available a series of services and
benefits to migrant workers and their families, irrespective of their immigration
status. The Report of the Rapporteurship also highlighted the importance of the
decisions in the Constitutional Chamber of the Supreme Court of Justice for the
effective protection of the rights of migrant workers and their families in Costa
Rica.
 
 85.    As confirmation that the above-alleged discrimination is generalized
and affects the entire migrant population in Costa Rica, the State of Nicaragua
mentions that the Law on Migration and Nationality (Law 8487 published on
December 12, 2005, and entered into force on August 12, 2006) violates rights
recognized in the Convention and other international human rights treaties.
Consequently, the Nicaraguan State argues that the State of Costa Rica, whether by
act or by omission, is an accessory to the acts of discrimination and xenophobia
caused by the entry into force of the aforementioned law.[80]
 
86.    With respect to the contents of the law in question, the State of
Nicaragua notes critically, inter alia, that:  a) the law permits the arrest or
deportation of any foreigner who is unable to show that they are in Costa Rica
legally when required to do so by the Immigration Police; b) a foreigner’s
residence permit can be ordered cancelled if they have entered the country evading
immigration controls; c) the law punishes any persons or companies that employ
illegal immigrants as workers or provide accommodation to illegal immigrants; d)
it makes distinctions based on economic status or cultural condition; e) it widens
the area in which the immigration authorities may enforce the rule of 
“administrative refusal of entry,” which would permit operations to be conducted
in predominantly agricultural areas with a massive presence of Nicaraguan
migrants; f) it violates due process guarantees because it does not provide any
recourse against certain decisions of the immigration authorities; g) immigration
policy is considered a matter of public security; h) the law does not establish the
maximum lengths of time that foreigners may be held in custody under the control
of the Immigration Police.
 
87.    As a basis for these arguments, the State presents to the Commission
several reports and opinions expressed by international agencies and organizations
on the Nicaraguan Migration Law. Furthermore, the Nicaraguan State cites in its
interstate communication remarks by the presidential candidates during their
election campaigns criticizing the law.  In that regard, the State of Nicaragua
quotes campaign statements made by the current President of the Republic, Óscar
Rafael de Jesús Arias Sánchez, who reportedly described the law as “draconian and
Gestapo-like.”[81] In later briefs, the Nicaraguan State says that the declarations of
the President of the Republic should be taken as basic proof that xenophobia and
discrimination exist in Costa Rica.
 
88.    Finally, the State of Nicaragua argues that, coupled with the comments
of President Arias, the fact that the State of Costa Rica has mentioned in its reply
to the interstate communication that it does not overlook the fact that both
countries face enormous challenges to prevent the rise of xenophobia between the
two nations constitutes an admission by the Costa Rican State of the existence of
xenophobia.[82]  
 
B.         Position of the State of Costa Rica[83]
 
Position of the State of Costa Rica on the case of Mr. Leopoldo
Natividad Canda Mairena
 
89.    In its reply to the interstate communication of Nicaragua, the State of
Costa Rica did not present arguments on the events in connection with Mr.
Natividad Canda Mairena, and merely stated that the matter is being examined by
the Judicial Branch in Costa Rica. The State of Costa Rica mentioned that the
investigation of the case remains open and that evidence has been collected,
together with witness testimony, expert opinions, and reports from the agencies
that took part in the rescue, among other measures.  The Costa Rican State also
mentioned that the family of Mr. Natividad Canda Mairena filed an individual
criminal complaint. In this respect, the State of Costa Rica reiterated its public
expressions of regret at what happened to Mr. Canda Mairena, saying that “the
circumstances of this tragedy will be investigated thoroughly in accordance with
the procedures in force, and those responsible will receive the punishments
prescribed by law.”[84]
 
90.    In the brief containing its arguments on merits,[85] the State of Costa
Rica imentioned that the case of the “death of Mr. Canda Mairena, is at an
intermediate phase of the criminal proceeding in which two persons have been
formally indicted.” The State of Costa Rica added in connection with the death of
Mr. Natividad Canda Mairena that two persons had been charged with the crime of
unintentional homicide by culpable omission, and that the preliminary hearing has
been set for March 21, 2007, which showed that the authorities have continued to
proceed diligently in the case.  According to the State, based on the results of said
hearing, the judge overseeing the intermediate stage would determine if the matter
should go to trial.
 
91.    As an annex to its observations on merits in the case, the Costa Rican
State presented to the IACHR a copy of the indictment and request for the opening
of trial proceedings that the Assistant Prosecutor for Cartago filed against two
officers of the public security forces for the crime of “unintentional homicide by
omission” of which Mr. Leopoldo Natividad Canda Mairena was allegedly the
victim.  The alleged responsibility of the officials is based on the fact that they had
the obligation and clear possibility to fire on the dogs, bearing in mind their
position with respect to the animals, the visibility at the time, and other
considerations.
 
92.    According to the State of Costa Rica, “in none of the cases questioned
by the State of Nicaragua has there been a delay of justice, violation of due process
guarantees, or, much less, impunity, “apparent” or otherwise […] and, furthermore,
should any doubt exist, in spite of the explanations provided, the parties concerned
have recourse to the Constitutional Court.”[86] In that connection, the Costa Rican
State invokes the objection alleging failure to exhaust domestic remedies in the
instant case.
 
93.    The State of Costa Rica confirmed that electronic mail and mobile
telephone text messages circulated which alluded to the death of Mr. Natividad
Canda Mairena, and through a press release issued by the Ministry of Foreign
Affairs and Worship,[87] it expressed its profound disapproval for the contents of
said messages that sought to make fun of an exceptionally distressing tragedy.  The
State of Costa Rica underscored in the aforesaid press release that "there are many
day-to-day examples of harmonious and respectful coexistence between Costa
Ricans and Nicaraguans. As far as human rights are concerned, the hospitals of
Costa Rica do not inquire about nationality and provide, just as other institutions
do, generous and humanitarian assistance.”
 
Position of the State of Costa Rica on the case of Messrs. José Ariel Silva
Urbina, José Antonio Martínez Urbina, Francisco Angulo García, Rito
Antonio Obando and Elder Angulo García
 
94.    In its reply to the interstate communication of Nicaragua, the State of
Costa Rica mentioned that the matters concerning Mr.  José Ariel Silva Urbina and
other persons injured in the same incident are being examined by the Judicial
Branch in Costa Rica. In addition, the State of Costa Rica reiterated its public
expressions of regret at the events that befell Mr. José Ariel Silva Urbina, saying
that “the circumstances of this tragedy will be investigated thoroughly in
accordance with the procedures in force, and those responsible will receive the
punishments prescribed by law.”[88]
 
95.    The State of Costa Rica merely mentioned that “the alleged culprit of
this crime was identified two days after the acts that gave rise to the instant case
were committed […], however, since the liberty of a person is at stake, Costa
Rican law provides that the concurrence of a number of circumstances is required
to allow a preventive incarceration order” […].  In the instant case it was not
determined that the person named as the suspect was a flight risk or intended not to
submit to the proceedings, since he had a stable job and family life.  Therefore,
there was no need, according to the appraisal of the circumstances made by the
competent judge, to deprive him of liberty on a preventive basis.” [89] Furthermore,
the Costa Rican State explained that "the events of December 4, 2005, were
categorized on December 6 of that same year, that is, two days after the incident,
as one count of unintentional homicide and two counts of attempted homicide, in
accordance with the classifications contained in the Costa Rican criminal code […]
and not three months afterwards.”[90]
 
96.    In the brief containing its arguments on merits,[91] the State of Costa
Rica informed the Commission that the case of "the death of Mr. Urbina Silva
(sic), has been given sufficient forward impetus by the authorities and that
corresponding interest on the part of the victims and the witnesses has been
lacking.  However, according to information provided by the Office of the
Prosecutor General, thanks to the latest steps taken to find all of the witnesses in the
case of the death of Mr. José Ariel Silva Urbina, five eyewitnesses were located to
take part in an identity parade to make a physical identification of the accused man,
set for February 2, 2007. The criminal summons sought by the prosecution will be
decided based on the results of that proceeding.”  The Costa Rican State also
explained that it is necessary to investigate not only the death of Mr. Silva Urbina,
but also other offences, such as grievous injuries that other aggrieved parties may
have sustained, so as to have sufficient evidence to indict the accused for the
various crimes that might have been committed. Based on the foregoing, the Costa
Rican State says that the Office of the Prosecutor has insisted on locating all of the
witnesses and aggrieved parties in order to build a solid case.
 
97.    The State of Costa Rica submits that “in none of the cases questioned
by the State of Nicaragua has there been a delay of justice, violation of due process
guarantees, or, much less, impunity, “apparent” or otherwise […] and, furthermore,
should any doubt exist, in spite of the explanations provided, the parties concerned
have recourse to the Constitutional Court.”[92] In that connection, the Costa Rican
State invokes the objection alleging failure to exhaust domestic remedies in the
instant case.
 
Position of the State of Costa Rica on the Nicaraguan migrant
population in a vulnerable situation in Costa Rica
 
 98.    According to the arguments of the State of Costa Rica, the information
on the context in the country with respect to immigration serves further to highlight
that the individual cases mentioned in the communication of Nicaragua are
instances that are isolate, not only from each other, but also in relation the overall
situation in the country and the way in which immigrants are generally treated.[93]
 
99.    In its reply to the interstate communication, the State of Costa Rica
argues that "it is not reasonable to assert, much less assume as an absolute truth,
that xenophobia and discrimination were at the root of the events alleged in the
communication.”[94] The State of Costa Rica adds that it has publicly repudiated
any display of xenophobia which, it says, are manifestations of minority sectors
expressed in private and do not reflect the actions of the State or the sentiments of
the majority of Costa Ricans.
 
100.          For the State of Costa Rica, “the deaths of Mr. Natividad Canda
Mairena and Mr. José Ariel Silva Urbina are incidents that [the State] regrets and it
shares the concern that they be clarified.  However, they are isolated cases in Costa
Rican society and in no circumstances were they framed by a context of
xenophobia or discrimination.”[95]
 
101.          The State of Costa Rica mentioned in its reply to the
communication of Nicaragua that there are reiterated displays of solidarity with the
Nicaraguan people, and notes, for example, that in the 1980’s the country was a
refuge for many Nicaraguans who fled the dangers of the internal conflict that was
being waged in their country; that in 1998 and 1999 Costa Rica implemented an
immigration amnesty program for Central Americans in which the status of
152,000 people, 97% of whom were of Nicaraguan origin, was regularized; that the
Costa Rican Social Security Fund provides emergency, pregnancy, and child
delivery care to nationals and foreigners alike, even if the latter do not pay worker-
employer contributions; that basic education in the country is free and compulsory
for all minors without any discrimination; and that the Constitutional Court has
consistently held in a number of judgments that foreigners and nationals have
equal rights except where political rights are concerned.[96]
 
102.          In its observations on merits in the case, [97] the State of Costa Rica
provided the Commission with information designed to show that it has responded
with progressive measures to ensure the rights of the migrant population. The
Costa Rican State says that, without understating the added social and cultural
challenges faced by the migrant population as a result of the fact that Costa Rica
has a large proportion of foreigners in its population, mainly of Nicaraguan
nationality (who reportedly comprise 90%), broadly speaking, the challenges faced
by the migrant population in Costa Rica are the same as those faced by Costa
Rican nationals.
 
103.          The Costa Rican State says that it has progressively developed a
legal framework and a complex institutional framework that systematically and
broadly guarantee the rights of immigrants. [98] As an example, the State of Costa
Rica mentions a congressional bill that it prepared in consultation with sectors of
civil society and pertinent international agencies in order to introduce reforms to
the Migration Law currently in force. It also mentions with respect to the
Constitutional Court, which became part of the country's institutional framework in
1990, that its decisions on the rights of foreigners (health, labor, education, access
for students to scholarships, etc.) are another example of the gradual development
of the country in this area.
 
104.          As regards access to rights for immigrants in Costa Rica, the State
of Costa Rica refers in the brief containing its observations on merits, [99] to the
constitutional framework established to protect these rights. In first place, it
mentions that Article 19 of the Constitution provides that, with the exception of
political rights, foreigners have the same individual and social rights and
obligations as Costa Ricans. For its part, Article 33 of the Constitution in Costa
Rica recognizes the equality of all persons before the law and expressly prohibits
any distinctions contrary to human dignity.  In that connection, the Costa Rican
State cites a judgment of the Constitutional Court (Judgment 5965-94), which
ruled that the Constitution embraces, first and foremost, the principal of equality of
fundamental rights, and clearly excludes other possibilities for generic legal rules
applicable to foreigners (such as those based on the condition of reciprocity or on
discrimination). On this premise, the Constitutional Court interpreted that the right
to equal treatment recognized in Article 33 of the Constitution must be considered
a fundamental right held by nationals and foreigners alike, and not only the former.
 
105.          In addition, the Costa Rican State assures the Commission that its
Constitution includes a recognition of fundamental rights and permits access for all
persons residing in its territory, without distinction as to nationality, to, inter alia,
public health services, with first-rate specialists and drugs; special protection for
minors; free preschool, primary, and secondary education paid for by the State;
public universities of recognized academic excellence subsidized by the State;
scholarships and school grants [bonos escolares] for both Costa Ricans and
foreigners; programs providing decent housing, and labor legislation that requires
employers to ensure certain basic conditions for their workers and a minimum
wage. Furthermore, under the Constitution, all persons who reside in Costa Rican
territory enjoy all the rights recognized in the Constitution and international
treaties, subject only to the exceptions and restrictions provided in the Constitution
and constitutional laws.
 
106.          With respect to the observations of the State of Nicaragua on the
Law on Migration and Nationality (Law 8487), the State of Costa Rica explained
in its brief containing its observations on merits that said law is founded on the
legitimate exercise by Costa Rica of its sovereignty and the discretion enjoyed by
all states to determine the rules authorizing or governing the conditions under
which foreigners may stay in their territory, which authority is recognized by the
Inter-American Court of Human Rights in Advisory Opinion OC-18/03.
Furthermore, the State of Costa Rica underscores that it has presented a proposed
law to reform the General Law on Migration and Nationality, the purpose of which
is to make its text consistent with the current immigration situation and the
requirements outlined by different national and international actors in the area of
human rights and public security.
 
107.          In the brief containing its observations on merits, [100] the State of
Costa Rica furnishes the Commission with information on how Nicaraguans under
its jurisdiction are ensured their rights in labor, education, health, and culture-
related areas.
 
108.          With respect to the right to work, the State of Costa Rica notes
that this right is enshrined in Article 56 of the Constitution and that workers are
also entitled to a number of basic working conditions, including a minimum wage,
a maximum working day and week, vacations after a period of continuous work,
and the right to a weekly period of rest, among others.  Article 68 of the
Constitution provides that "there shall be no discrimination as regards salary,
benefits, or working conditions between Costa Ricans and foreigners, or with
respect to any group of workers.” the Costa Rican State also says that the
Constitutional Court (in Judgment 1999-00616) ruled that a provision that required
all employers to ensure that at least 90% of their employees were Costa Ricans was
unconstitutional. The Constitutional Court confirmed that the right to work is a
universal right and not only held by those of a particular nationality, and that the
State has a duty to seek to ensure conditions so that everyone might have an
honest, useful, and suitably remunerated occupation without discrimination on the
basis of salary, benefits, or working conditions between Costa Ricans and
foreigners. The Constitutional Court added in its judgment that the Constitution
demands a full employment policy, which would be fictitious or nonexistent were
it simply based on the exclusion of foreigners from positions of work.
 
109.          The State of Costa Rica added that the prohibition against
discrimination in the workplace is not only recognized in the Constitution but also
in other regulatory provisions, such as the Labor Code (Article 622) and
Law 2694 of 1960 (Article 1). The State also noted that Law 8107 of July
18, 2001, added a new title (Title 11, Prohibition to Discriminate) which
consolidated a system of protection against discrimination in the workplace
on behalf of workers who are not Costa Rican nationals.
 
110.          As regards the right to education, the Costa Rican State says that
there are migrant children of all ages in its education system, where minors of
Nicaraguan origin represent around 4% of the total student population in the
country, from preschool to third grade and in diversified education (secondary). It
mentions that in 2001 alone, the Ministry of Public Education invested a total of
3,605.20 million colones in education for the migrant population and in the wake
of various rulings by the Constitutional Court the benefits in the form of student
scholarships for this child population have increased.  The State of Costa Rica says
that there are certain distinguishing features that shape the profile of Nicaraguan
students due to the low enrolment ratio in comparison with the national average in
Costa Rica, and, in response, the State has designed initiatives, such as the so-
called “Aula Abierta” [Open Classroom] program, to provide special instruction at
schools with particular attention to the immigrant population and overage students.
 
111.          On the subject of the right to housing, the State of Costa Rica
presented the IACHR with a series of figures to show that in the period from 1989
to 2004, the State processed the applications of 5,379 families with at least one
foreign member that applied for a Family Housing Grant [Bono Familiar para la
Vivienda].
 
112.          As to the right to health, the Costa Rican State observes that in
accordance with the policy and institutional framework in place in Costa Rica,
health services are available for anyone who needs them.  The State admits that at
present no undocumented foreigner can be assured of receiving such services in
any category because the procedure requires a residence card or a work permit.
Therefore, their access to services is sometimes limited by their irregular status.
However, the State of Costa Rica mentions that the Constitutional Court has
guaranteed this right without distinction as to nationality through its consistent case
law and has ruled that health services must be guaranteed for all inhabitants of the
Republic, regardless of their immigration status or their eligibility for admittance
to the social security system. The State says that according to information from the
Costa Rican Social Security Fund, the healthcare spending on foreigners in 2001
accounted for approximately 5% of total social security spending on health.  The
State adds that at the local community level primary health care is provided by
Basic Comprehensive Healthcare Teams (EBAIS) and that access for immigrants
to this system is facilitated by the fact that no requirements of any kind need be
met. Furthermore, the State says that emergency healthcare is provided irrespective
of the migratory status of the patient, although for consultations and internment the
patient must have insurance.  Finally, the State of Costa Rica cites the report of the
Rapporteurship on Migrant Workers and their Families of the IACHR, published in
2002 following its visit to Costa Rica, which notes that while the State recognizes
that in many cases undocumented migrant workers do not seek health services for
fear of being deported, the government has a policy of not refusing health services
to any person seeking them.[101]
 
113.          As regards the right to culture of the immigrant population in
Costa Rica, the Costa Rican State says it has made efforts to improve the
perception of the immigrant population in the country.  For example, it mentions a
documentary produced by the Costa Rican Cinematographic Production Center in
1998 entitled "Más allá de las fronteras" [Beyond our borders], which deals with
the situation of young Nicaraguan migrant women who come to Costa Rica to
work as domestic servants. It also mentions the support provided by the state for
independent initiatives that work to raise awareness about the problems faced by
immigrants, as in the case of a play entitled “El Nica”.
 
114.          The State of Costa Rica, after describing the legal framework
governing the rights of migrants in its territory, says that the rights of migrants are
also justiciable and enforceable, in particular through the remedies of habeas
corpus and amparo. In this connection, the Costa Rican State cites Article 48 of its
Constitution, which enshrines the right of all persons, without distinction between
Costa Ricans and foreigners, or based on the migratory status of the latter, to file a
petition of habeas corpus to ensure the liberty and well-being of persons or to
present an action for amparo to protect or repair other rights enshrined in the
Constitution and international human rights instruments.  Both actions must be
brought before the Constitutional Chamber of the Supreme Court Justice. The State
adds that neither remedy is subject to formal procedural requirements and both are
disposed of in record time by the Constitutional Chamber of the Supreme Court
Justice. Furthermore, according to the State of Costa Rica these remedies operate
without prejudice to other actions provided in the body of laws for protection of
human rights in other areas, such as labor-related lawsuits in the ordinary courts,
administrative proceedings before the State, actions to protect proprietary claims,
etc.
 
115.          The State of Costa Rica observes that through the jurisprudence of
the Constitutional Court protections for the basic rights of health and education
have been broadened and developed for all the country's inhabitants, be they
foreigners or nationals, which has lead to the availability of emergency healthcare
and child delivery services for all persons no matter if they contribute to the social
security system or not.  The State notes, furthermore, that the rulings of the
Constitutional Court have favored the rights of migrant children and recognize that
every child in the territory of the Republic is entitled to all of the benefits
contained in the Convention on the Rights of the Child
 
116.          In its brief containing its observations on merits in the case, the
State of Costa Rica mentions that supplementing the various mechanisms for
protection of human rights of migrants in Costa Rica are a series of good state
practices in the area of immigration, including the 1999 Immigration Amnesty, the
activities of the Permanent Forum on Migrant Populations, and the management of
migratory flows by the Technical Area on Migrant Labor of the Ministry of Labor,
among others.
 
117.          With respect to the Immigration Amnesty, the State of Costa Rica
notes that by June of 1999 around 152,000 Central Americans, 97% of them of
Nicaraguan origin, had taken advantage of the amnesty to regularize their
migratory status and become residents.  With respect to the activities of the
Technical Area on Migrant Labor of the Ministry of Labor and Social Security, the
State mentioned that field research projects have been carried out since
approximately since 1996 to study developments in the labor market and to
determine the real situation with respect to the labor conditions of migrants in the
country, especially Nicaraguans, with particular attention given to monitoring
seasonal agricultural programs. As regards the Permanent Forum on Migrant
Populations, the Costa Rican State explains that this forum was created in 1995
among the offices of the Ombudsman to discuss the situation of the migrant
population Costa Rica, as well as possible responses by the State to deal with this
phenomenon.
 
118.          Based on the foregoing, the State of Costa Rica says that it is fair
to conclude that there is no structural vulnerability for immigrants, but that, to the
contrary, it has been the practice of the State to try to respond to the needs of the
foreign population in the country.[102] According to the State of Costa Rica, based
on a careful analysis of the arguments presented by the State of Nicaragua it may
be reasonably concluded that the allegations, while regrettable and requiring the
due attention of the Costa Rican authorities, are not sufficient to assert that there
exists in Costa Rica the climate of discrimination and xenophobia that the State of
Nicaragua seeks to create.
 
119.          While the State of Costa Rica recognizes that one of the
consequences of the massive immigration of Nicaraguans to its territory is that
certain sectors of the population regard immigrants with distrust, it maintains that
that is a logical consequence of migration that occurs in any country with large
migrant flows.  In that connection, the State of Costa Rica once more cites the
report that the Rapporteurship on Migrant Workers and their Families of the
IACHR published in 2002 following its visit to Costa Rica, which explains that the
interaction between the local population and resident foreigners may often cause
friction as a result of competition, resentment, or lack of understanding.  In this
respect, it should be noted that migrant workers, especially undocumented ones,
are especially vulnerable to expressions of xenophobia and discrimination that are
latent in every society. However, the Rapporteurship observes that the
discrimination suffered by migrant workers and their families does not reflect a
State policy, but rather has to do with a negative predisposition with respect to
migrant workers on the part of the population.[103]  A similar interpretation of the
phenomenon can be found in a 2002 Study prepared by the Inter-American
Development Bank, which the State of Costa Rica cites in its observations on
merits, and according to which the results –and especially the high levels of
participation in the labor market suggest that Nicaraguans, like other groups of
immigrants who have chosen to migrate, are vulnerable rather than excluded.[104]  
 
120.          The Costa Rican State also cites a study published by the Central
American Population Center in 2006, which says that “several recent government
efforts have moved in the direction of a more integrated social policy towards
Nicaraguan migrants.  These include a Program on the Improvement of Quality of
Life and the Integration of Migrants in Costa Rica undertaken by the Second Vice-
President of Costa Rica.  In addition, the 2002-2006 National Development Plan
includes a specific component addressing the welfare of Nicaraguan migrants and
members of the Costa Rican and Nicaraguan governments have produced a draft
Binational Policy on Migration.”[105]
 
121.          The State of Costa Rica also refers to the role of the press, in
particular to its social responsibility in propagating stereotypes that shape public
opinion.  In this connection, the State of Costa Rica cites and presents as evidence
several articles published in the Nicaraguan press, and argues that they disseminate
messages of hate, stir up irresponsible nationalist sentiment, and even go so far as
to urge Nicaraguans to take up arms on Costa Rican soil.
 
122.          Finally, the State of Costa Rica says that “both States should take
steps to continue constructing a positive, though complex, relationship between the
two nations.  This is a shared responsibility and should be reflected by national
agreements.  For its part, the Costa Rican State undertakes to continue to move
forward in providing effective protection for the human rights of foreigners, 90%
of whom are of Nicaraguan origin; as well as engaging in dialogue in binational
forums to look for ways to strengthen human development in both countries.” [106] 
It should also be noted that the State of Costa Rica has emphasized that to say that
both Nicaragua and Costa Rica face enormous challenges to prevent the rise of
xenophobia between the two nations is not an admission that a climate of
xenophobia exists […]; quite the contrary, it constitutes a recognition of the real
situation between the two nations with the sound intention for the two states to
adopt preemptive measures to strengthen relations between the two peoples.  To
ignore this reality, rather, would be to support it.”[107]
 
IV.       ANALYSIS
 
A.        Preliminary considerations concerning the processing of this
interstate communication
 
123.          In this section the Commission analyzes the rules that authorize
and govern the processing by the Commission of cases in which a state party
alleges that another state party has committed a violation of a human right set forth
in the Convention.
 
124.          The American Convention, at Section 3 of its Chapter V,
establishes the competence of the Inter-American Commission on Human Rights.
Article 44 of the Convention refers to the authority of the Commission to process
petitions that contain denunciations of violation of the Convention by a State Party,
which may be lodged by any person or group of persons, or any nongovernmental
entity legally recognized in one or more member states of the Organization. For its
part, Article 45 of the Convention clearly determines the competence of the
Commission to receive and examine communications in which a state party alleges
that another state party has committed a violation of a human right set forth in the
Convention, provided that both the state party that presents the communication and
the state party against which it is presented shall have declared, upon depositing
their instrument of ratification of or adherence to the Convention, or at any later
time, that they recognize the competence of the Commission to receive and
examine communications in which a state party alleges that another state party has
committed a violation of a human right set forth in the Convention.  Declarations
concerning recognition of competence may be made to be valid for an indefinite
time, for a specified period, or for a specific case.
 
125.          Articles 46 and 47 of the Convention, for their part, concern the
admissibility requirements to be met by both petitions presented under Article 44
and communications lodged pursuant to Article 45. Next, Section 4 of the Chapter
V of the American Convention governs all the aspects of the procedure to be
followed by the Commission upon receiving a petition submitted in accordance
with Article 44 or upon receiving a communication presented pursuant to Article
45, if they alleged violation of any of the rights protected by the Convention.
 
126.          Furthermore, Article 48 of the Rules of Procedure of the IACHR
provides that when a state party to the American Convention that has accepted the
competence of the Commission to receive and examine such communications
against other states parties lodges a communication against another state, the
Commission shall transmit it to the state party in question whether or not it has
accepted the Commission's competence. If it has not accepted that competence, the
communication shall be transmitted in order that the state concerned may exercise
its option to recognize the competence of the Commission in the specific case that
is the subject of the communication.  Furthermore, according to the aforesaid
Article 48, if the State in question has accepted the Commission’s competence to
consider a communication from another state party, the respective procedure shall
be governed by the provisions concerning the processing of all petitions lodged
with the Commission, insofar as they apply.
 
127.          It may be concluded from the foregoing that both the American
Convention and the Rules of Procedure of the IACHR have provided that
communications in which a state party alleges that another state party has
committed a violation of a human right set forth in the Convention, are governed
by the same rules of procedure and must meet the same requirements as petitions
containing denunciations or complaints that are presented by any person, provided
that they also satisfy the specific requirements set forth in article 45 of the
Convention, the foregoing without prejudice to the fact that the applicable
procedures and requirements must take into consideration the special
characteristics and purposes of the mechanism for communications between states.
 
128.          In presenting its communication, the State of Nicaragua said that
it did so “specifically in accordance with the requirements set down in Articles 61
(1), (2), and 48 to 50 of the American Convention on Human Rights”. At the same
time, the Nicaraguan State requested that “ this petition be processed in accordance
with Articles 48 to 51 of the American Convention on Human Rights and,
therefore, that the State of Costa Rica be requested to provide a report.” 
Furthermore, the State of Nicaragua said that its interstate communication was in
keeping with the terms of the appropriate form of the IACHR as an obligatory
prior step to the introduction of cases referred to the Inter-American Court of
Human Rights. The State of Nicaragua invokes, for this case, the procedure
determined by the Inter-American Court of Human Rights in the Case of Viviana
Gallardo et al.”
 
129.          Throughout the proceeding in this case, the State of Nicaragua has
held that the communication that it presented against the State of Costa Rica
should not have been processed under Articles 45 et seq. of the Convention, but
pursuant to Article 61 of the American Convention on Human Rights, which only
makes reference to Articles 48 to 50 of that instrument. 
 
130.          In this connection, the Commission notes that the American
Convention is an integral whole that must be interpreted in its entirety, and the
Commission is required to apply and comply with each and every one of the
articles that the Convention contains.  It is the duty of the organs of the system to
ensure the international protection that the Convention provides, taking into
account the totality of the framework agreed on by the states. Accordingly, if
Article 45 of the Convention specifically recognizes the competence of the
Commission to admit and examine communications between states, and Articles
46 and 47 expressly set out the requirements to be fulfilled by such
communications in order to be admitted by the Commission, in no circumstances
could the IACHR ignore these articles and process an interstate communication
solely under Articles 48 to 51 of the Convention as the State of Nicaragua has
requested. Moreover, Article 48 (a), invoked by the State of Nicaragua, provides
that if the Commission considers the communication admissible, it shall request
information from the government of the state indicated as being responsible for the
alleged violations. Accordingly, Article 48 itself compels the Commission to make
a determination on admissibility, and to do so in accordance with Articles 46 and
47 of the Convention.
 
 131.          As the State of Costa Rica has mentioned, application of Article
45 of the Convention is an obligatory and logical prerequisite since otherwise the
competence to be exercised by the Commission would not exist.
 
132.          The Commission also recalls that the Matter of Viviana
Gallardo et al.,[108] to which the State of Nicaragua refers, is a case that originated
from the action of a state party that submitted to the Court for consideration a case
of possible violation of human rights enshrined in the Convention imputable to the
same state, that recognized ipso facto the competence of the Court to examine
cases concerning interpretation or application of the Convention.  On that occasion,
the State said that it "formally waives the requirement of the prior exhaustion of
the domestic legal remedies and the prior exhaustion of the procedures set forth in
Articles 48 to 50 of the Convention," in other words, processing by the Inter-
American Commission.  It declared the purposes of that waiver was “to enable the
Court to ‘consider the instant case immediately and without any procedural
obstacle.’” In that instance, the Inter-American Court decided unanimously not to
admit the application of the Government of Costa Rica, requesting the Court to
examine the matter of Viviana Gallardo et al., but to grant the subsidiary plea of
the government of Costa Rica and refer the matter to the Inter-American
Commission on Human Rights. Therefore, the case of Viviana Gallardo et
al. confirms the need to exhaust the proceeding before the Commission.
 
133.          In reaching its decision in the Matter of Viviana Gallardo et al.,
the Court also concluded that the procedures before the Commission cannot be
dispensed with in this kind of case without impairing the institutional integrity of
the protective system guaranteed by the Convention.  The Court further
found obiter dictum that ”[t]hese procedures may therefore not be waived or
excused unless it were to be clearly established that their omission, in a specific
case, would not impair the functions that the Convention assigns to the
Commission, as might be the case when a matter is initially presented by a State
against another State and not by an individual against a State.” [109]  However, such
exceptional circumstances must be demonstrated and it would be wrong to
conclude that the proceeding before the Commission could be dispensed with in all
interstate cases. In any case, the State of Nicaragua presented its communication to
the Commission and requested it to process it in accordance with Articles 48 to 50
of the Convention and, in so doing, accepted the processing of the communication
by the IACHR in the terms established by the Convention, including a
determination as to the competence of the IACHR and the admissibility of this
communication.
 
 134.          Based on the foregoing, the Inter-American Commission
considers that in processing the instant interstate communication under Articles
45 et seq. of the Convention, it acted in full accordance with the provisions
contained in the American Convention and in its Rules of Procedure.
 
135.          The State of Nicaragua has also protested the decision of the
Commission to grant an extension to the State of Costa Rica to present its reply to
the interstate communication, even though the extension was requested after the
time limit for the Costa Rican State to submit its reply had expired. The
Commission is aware that the time limit for the State of Costa Rica to submit its
reply to this interstate communication expired on April 15, 2006, with no reply
forthcoming from said State. Then, on April 24, 2006, the State of Costa Rica
sought an extension of 15 days to present its reply and on April 27 the Commission
decided to grant a single extension of eight days for the State of Costa Rica to
respond to the interstate communication.
 
136.          However, in the practice of the Inter-American system for
protection of human rights both the Commission and the Court have determined
that a delay in meeting a deadline may be overlooked provided that the delay is not
considered excessive within the necessary limits of time and reasonableness. “The
Court has exercised flexibility vis-à-vis the periods established in the Convention
and in its Rules of Procedure […]and has often granted extensions requested by the
parties when they have shown reasonable cause.” [110] Thus, this is not the first time
that the organs of the system have granted an extension to a party, even after the
time limit has expired, provided there has been reasonable cause to do so. [111] In the
instant case, the Commission finds that the delay of State of Costa Rica in
presenting a request for an extension cannot be considered excessive.
 
137.          Above all, the Commission takes the view that, particularly since
this is a case between states, it is especially important to exercise flexibility with
time limits so as to preserve the possibility of balanced exchanges between the two
states in the interests of attaining justice. As this is a case in which the relations
between two OAS member states are at stake, the Commission considered it
essential to listen to the opinions of both states on the matter, since the effects of
not hearing one of the parties in this case by reason of an expired deadline could
have seriously affected relations between these two neighboring nations. In this
connection it is worth recalling the position adopted by the Court in the sense that
“the procedural system is a means of attaining justice and that the latter cannot be
sacrificed for the sake of mere formalities.  Keeping within certain timely and
reasonable limits, some omissions or delays in complying with procedure may be
excused, provided that a suitable balance between justice and legal certainty is
preserved.”[112].
 
138.          It is on the basis of these principles that the Commission
considers that to grant an extension to the State of Costa Rica, so that it might
present its observations on the communication that the State of Nicaragua lodged
against it, was fully justified within the limits of time and reasonableness necessary
to preserve a balance between justice and legal certainty.  Therefore, the
Commission strenuously rejects the allegations in which the Nicaraguan State
denounces an “apparent partiality of the Executive Secretariat toward the
Respondent State” and reiterates that both the Commission and its Executive
Secretariat have acted in an absolutely objective and impartial manner in
processing this communication and have proceeded at all times within the limits
set forth in the American Convention and the Rules of Procedure of the IACHR.
 
139.          The State of Costa Rica, on the other side, asserted that it is
convinced that there has been a series of irregularities in the processing of the
instant communication[113], and thus the Commission will analyze these assertions.
 
140.          In first place, the Costa Rican State alleges irregularities
connected with the decision of the Commission to join its examination of
admissibility and merits as provided in Article 37(3) of its Rules of Procedure. In
that regard, the Costa Rican State has mentioned that the note of the Executive
Secretariat “would appear to suggest a connection between the ‘non-acceptance’ of
the friendly [settlement] procedure and the joinder of the admissibility stage with
the debate and decision on merits.”[114] The State of Costa Rica adds that the
Commission never justified that joinder and thereby violated a fundamental
requirement in the proceeding.
 
141.          The Commission notes that Article 37(3) of its Rules of
Procedure empowers it, in exceptional circumstances, to open a case but defer its
treatment of admissibility until the debate and decision on the merits.  The above-
cited article also provides that the case shall be opened by means of a written
communication to both parties. Furthermore under its Rules of Procedure, the
Executive Secretariat is authorized to receive and process the correspondence
addressed to the Commission. However, the applicable rules do not require the
Secretariat to inform the parties in writing which exceptional circumstances the
Commission weighed in reaching its decision to join the stages on admissibility
and merits in the case. The IACHR considers that those exceptional circumstances
are amply attested in the instant report and utterly rejects any accusation that the
Commission has committed irregularities in processing this communication based
on the misinterpretation of a note transmitted by its Executive Secretariat. 
 
142.          In addition, the State of Costa Rica has mentioned that it finds it
unacceptable that the letter notifying it of the decision of the Commission to
convene a hearing and join the stages on admissibility and merits should have been
entitled "Interstate Case 01/06 Nicaragua v Costa Rica” without any basis for
doing so.[115] In that respect, the Commission is mindful that the above-cited Article
37 of the Rules of Procedure of the IACHR, empowers the Commission to open
the "case" but to defer its treatment of admissibility until the debate and decision
on the merits. Upon reaching the stage on merits, all petitions and communications
received by the Commission are registered as "cases" pursuant to the provisions
contained in Articles 37(2) and 37(3) of its Rules of Procedure.
 
143.          Finally, the State of Costa Rica has also protested the decision of
the Commission to convene a hearing before the time limit granted to the State of
Nicaragua to present its observations on merits had elapsed. [116]  On this point,
Article 38 of the Rules of Procedure of the IACHR, in establishing the applicable
procedure for cases in the merits stage, provides at paragraph five that “[i]f it
deems it necessary in order to advance in its consideration of the case, the
Commission may convene the parties for a hearing.”  Moreover, Article 62 of the
Rules of Procedure provides that “[h]earings on petitions or cases shall have as
their purpose the receipt of oral or written presentations by the parties relative to
new facts and information additional to that which has been produced during the
proceeding.  The information may refer to any of the following issues: 
admissibility; the initiation or development of the friendly settlement procedure;
the verification of the facts; the merits of the matter; follow-up on
recommendations; or any other matter pertinent to the processing of the petition or
case.” The Commission considers that hearings are the opportune moment for
parties to present any document, witness testimony, expert opinion, or evidence in
connection with the case. Therefore, there was no rule or reason to prevent the
IACHR from convening a hearing when it did.  It is worth noting, furthermore, that
the Commission did not exclude the possibility that the State of Costa Rica present
its written arguments in the time duly allotted for that purpose.
 
B.         Competence of the Commission under Article 45 of the
American Convention
 
144.          The first paragraph of Article 45 of the American Convention
requires the express acceptance for its organs to examine interstate
communications. As the Inter-American Court has held, the Convention is unique
among international human rights instruments in making the right of private
petition applicable against State Parties as soon as they ratify the Convention; no
special declaration to that effect is required for individual petitions, although it
must be made for inter-State communications.[117]
 
145.          In this case the communication was presented by the State of
Nicaragua against the State of Costa Rica and, therefore, it is necessary to
determine if both states have declared their recognition of the competence of the
Commission to receive and examine communications in which a state party alleges
that another state party has committed a violation of a human right set forth in the
Convention.
 
146.          The second paragraph of Article 45 of the Convention states, in
first place, that communications presented by virtue of said article may be admitted
and examined only if they are presented by a State Party that has made a
declaration recognizing the aforementioned competence of the Commission.
Accordingly, the Commission must ascertain if the State of Nicaragua made such a
declaration.
 
147.          According to the information in the record, on February 6, 2006,
Nicaragua presented a note to the General Secretariat in which it announced that
the Government of the Republic of Nicaragua had added a third paragraph to
Declaration 49 of January 15, 1991, concerning the American Convention on
Human Rights, by which it declared that it recognizes the competence of the Inter-
American Commission on Human Rights to receive and examine communications
in which a state party alleges that another state party has committed a violation of a
human right set forth in the Convention, under the terms of Article 45 thereof.
 
148.          The second paragraph of Article 45 of the Convention states, in
second place, that the Commission shall not admit any communication against a
State Party that has not made such a declaration. Accordingly, the Commission
must ascertain if the State of Costa Rica made such a declaration.  
 
149.          According to the information in the record, the State of Costa
Rica deposited with the General Secretariat of the OAS its declaration of
acceptance of the competence of the Commission to receive and examine
communications between states on July 2, 1980. The Costa Rican State deposited
this declaration at the same time as it presented its instrument of ratification of the
Convention, a fact disputed by neither of the parties.[118]
 
150.          The third paragraph of Article 45 of the Convention does not
establish a requirement but the power of states to decide if their declarations
concerning recognition of competence are made to be valid for an indefinite time,
for a specified period, or for a specific case.
 
151.          A reading of the declarations made by both states to recognize the
competence of the Commission to receive and examine communications between
states leads to the conclusion that neither of them exercised the option to establish
time constraints or any other limits on the competence of the Commission. The
Commission analyzes below the moment at which those declarations came into
effect.
 
152.          Finally, the fourth paragraph of Article 45 of the Convention
provides that declarations shall be deposited with the General Secretariat of the
Organization of American States,[119] which shall transmit copies thereof to the
member states of that Organization. Accordingly, the Commission must verify if
both states made the necessary deposit with the General Secretariat and if the latter
duly transmitted them to the OAS member states.
 
153.          As mentioned in the preceding paragraphs, Costa Rica deposited
with the General Secretariat of the OAS its declaration of acceptance of the
competence of the Commission to receive and examine communications between
states on July 2, 1980, and neither of the parties in this case have disputed that
deposit.
 
154.          As to the deposit by the Nicaraguan State of its declaration of
acceptance of the competence of the IACHR, the Commission notes that the State
of Nicaragua, upon presenting its interstate communication, said that its
declaration of recognition of the competence of the Inter-American Commission
on Human Rights to receive and examine communications in which a state party
alleges that another state party has committed a violation of a human right set forth
in the American Convention on Human Rights, was published in Official
Gazette, La Gaceta, No. 22 of January 31, 2006 and “brought to the attention of
the General Secretariat of the Organization of American States on February 3 of
the year in progress, so that its contents might be transmitted to the States Parties
to the Convention and the Member States of the Organization”[120].
 
155.          On lodging its interstate communication with the IACHR on
February 6, 2006, the State of Nicaragua also presented a copy of the note that it
sent to the Secretary General of the OAS and which, according to the
communication of the State of Nicaragua, was received by the General Secretariat
of the Organization on Friday, February 3, 2006.  The purpose of the note to the
Secretary General[121] was to bring to his attention the declaration of January 26,
2006,[122] and request that he transmit to the other states parties to the Convention
and the members of the Organization of American States the contents of said
declaration, to which end the note also enclosed a photocopy of Official
Gazette, La Gaceta, No. 22 of January 31, 2006, in which the declaration was
published
 
156.          The Commission further notes that, upon transmitting to the State
of Costa Rica the interstate communication presented by Nicaragua, it also
forwarded a copy of the note that the State of Nicaragua sent to the Secretary
General in order to deposit its declaration of acceptance of the competence of the
Commission, together with a copy of the publication in the Official Gazette.  The
State of Costa Rica has not questioned the authenticity of the aforesaid
communications of the State of Nicaragua nor the confirmation of receipt on the
part of the OAS General Secretariat.
 
157.          Furthermore, the Commission observes that in the brief
containing its reply to the interstate communication from Nicaragua, presented to
the Commission on May 5, 2006, the Costa Rican State on several occasions cites
the declaration by which the State of Nicaragua recognizes the competence of the
Commission to receive and examine interstate communications, as well as the fact
that the declaration of the State of Nicaragua was communicated to the General
Secretariat of the Organization of American States on February 3, 2006, so that its
contents might be transmitted to the states parties to the Convention and the
members of the Organization.[123] By the same token, in the brief containing
arguments and observations presented to the IACHR at the hearing of July 18,
2006, the State of Costa Rica again recognized that the declaration of the State of
Nicaragua was communicated to the General Secretariat of the OAS on February 3,
2006, so that its contents might be transmitted to the states parties to the
Convention and the members of the Organization.[124]
 
158.          However, five months later, in the framework of the hearing held
on October 18, 2006, at the 126th Session of the IACHR, the State of Costa Rica
requested that the Commission suspend the hearing, arguing that the latter was not
competent to examine the instant communication.  As the basis for its argument it
presented a statement from the Office of International Law of the General
Secretariat of the Organization of American States to the effect that said office had
no record of additional acts on the part of the Government of Nicaragua in
connection with the American Convention since the deposit of its declaration
concerning the competence of the Inter-American Court of Human Rights on
February 12, 1991.  The Costa Rican State submitted on that occasion that the
information provided by the Office of International Law constitutes information or
supervening proof that there was no official record that the State of Nicaragua had
formally deposited a declaration of recognition of the competence of the IACHR
and, therefore, the note by which the Nicaraguan State presented its interstate
communication against the Costa Rican State should be refused by the
Commission.
 
159.          The Commission observes that the note issued by the Director of
the Office of International Law of the Organization of American States on
September 30, 2006, does indeed indicate that State of Nicaragua deposited its
instrument of ratification of the American Convention on September 25, 1979, and
the instrument of declaration of the competence of the Inter-American Court of
Human Rights on February 12, 1991. However, it mentions that the Office of
International Law of the Organization of American States has no record of any
additional acts on the part of the Government of Nicaragua relating to the
American Convention.
 
160.          Based on this statement from the Office of International Law of
the OAS, the State of Costa Rica has argued that the presentation of the note in
which the State of Nicaragua set out the instant interstate communication, as well
as its subsequent processing by the Inter-American Commission on Human Rights,
“in addition to a serious violation of the respective provisions in the Convention
and -along with them- the basic principles of openness, bona fide and pacta sunt
servanda, could not have come about in the absence of basic procedural
prerequisites without a clear, elementary, and especially gross flaw in the
proceeding, which has unquestionably impaired the procedural guarantees and
possibilities of defense of the Costa Rican State.”
 
161.          In this respect, the Commission reaffirms that upon receiving the
original communication from Nicaragua it conducted a preliminary verification of
the documentary records and considered that the Nicaraguan State had indeed
deposited the declaration mentioned in Article 45 of the Convention with the
Office of the Secretary General. For the sake of clarification, and faced with the
aforesaid allegations on the part of the State of Costa Rica, which contradicted
what the Commission had been able to verify from the record in the case, on
October 26, 2006, the IACHR wrote to the Secretary General to enquire whether or
not the State of Nicaragua had deposited with the General Secretariat its
declaration of recognition of the competence of the Commission to receive and
examine communications in which a state party alleges that another state party has
committed a violation of a human right set forth in the Convention. The
Commission also requested the Secretary General to inform it if, in the event that
he had received said declaration, the General Secretariat transmitted a copy of it to
the member states in accordance with Article 45 of the American Convention on
Human Rights.
 
162.          In response to this inquiry, on October 27, 2006, the Director of
the Department of International Legal Affairs - which is under the immediate
orders of the Secretary General and supervises the Office of International Law [125]-
wrote to the Inter-American Commission to inform it “that on February 6, 2006 the
General Secretariat received a note, which is enclosed, in which the Government of
Nicaragua informs that in a declaration of January 26, 2006, it added a third
paragraph to Declaration 49 of January 15, 1991, concerning the American
Convention on Human Rights, in which it recognized the competence of the
Commission to receive and examine communications in which a state party alleges
that another state party has committed a violation of a human right set forth in the
Convention. Today, in accordance with Article 45 of the American Convention on
Human Rights, a copy of that declaration will be transmitted to the member states
of the Organization.”[126]
 
163.          Thus, it was confirmed that the State of Nicaragua did indeed
make the necessary deposit with the General Secretariat of its declaration of
acceptance of the competence of the Commission in accordance with Article 45(4)
of the Convention.
 
164.          It should be clarified that the American Convention designated
General Secretariat as its depositary and that, upon depositing their declarations of
acceptance of the competence of the Commission, states are not required to
perform any additional acts before any other department of the Organization.
Accordingly, the Commission stands by its initial determination that the deposit
made by the State of Nicaragua on February 6, 2006, was correctly performed and,
therefore, the Nicaraguan State was empowered to present a communication in the
terms set forth in Article 45 of the Convention.
 
165.          Therefore, the IACHR does not subscribe to the arguments of the
Costa Rican State in the sense that that “inasmuch as the formal deposit of the
acceptance was not made […] with the Office of International Law of the
Department of Legal Affairs of the OAS, which is the organ that officially registers
the deposit of respective international instruments, until October 26, 2006, and
brought to the attention of the Permanent Missions to the OAS on October 27,
2006, it may be deduced that the essential requirement of openness recognized in
public international law has not been met […] so as to permit the recognition of the
state party to be considered effective and, therefore, to provide legal certainty to
other states in the inter-American system.”[127]
 
166.          In this respect, in the brief containing its observations on merits,
[128]
, the State of Costa Rica reiterated its objection of lack of standing to sue, based
not only on the arguments outlined in the hearing held on October 18, 2006, and
later briefs, but also on a new communication from the Director of the Office of
International Law of the Organization of American States, which says "[…]  that
the note of the State of Nicaragua […] recognizing the competence of the Inter-
American Commission on Human Rights to receive and examine communications
in which a state party alleges that another state party has committed a violation of a
human right set forth in the American Convention was received by the Office of
International Law of the Department of International Legal Affairs of the Office of
the Secretary General on October 26, 2006, and communicated to the Permanent
Missions to the OAS the following day,  October 27, 2006.” The aforementioned
communication from the Director of the Office of International Law was brought
to the attention of the Commission on February 5, 2007.  With respect to this note,
the Commission observes that it only mentions the date on which the Office of the
Secretary General communicated to one of its dependencies the note that it
received on February 6, 2006, but does not indicate the date on which the State of
Nicaragua deposited the declaration.
 
167.          As mentioned, Article 45 (4) of the Convention provides that the
General Secretariat of the Organization shall transmit copies of the declarations
that it receives as depositary to the member states of the Organization. It arises
from the communication of the Director of the Department of International Legal
Affairs that said transmission was completed on October 27, 2006. Therefore, the
Inter-American Commission must determine the legal effects of the declaration
that the State of Nicaragua deposited on February 6, 2006, in view of the fact that
the transmission of the declaration deposited by the State of Nicaragua was not
confirmed by the General Secretariat until October 27 of that year.
 
168.          To that end, the Commission considers it appropriate to refer to
the provisions of the Vienna Convention on the Law of Treaties with respect to the
deposit of instruments of ratification, acceptance, approval, or accession.
According to Article 16 of the Vienna Convention, “Unless the treaty otherwise
provides, instruments of ratification, acceptance, approval or accession establish
the consent of a State to be bound by a treaty upon: a) their exchange between the
contracting States; b) their deposit with the depositary; or, c) their notification to
the contracting States or to the depositary, if so agreed”. 
 
169.          In that regard, the Commission considers that the American
Convention, in keeping with the Vienna Convention on the Law of Treaties, opts
for the general rule that the act of deposit in itself establishes the legal link. [129] 
Even though the depositary has the duty to notify the states of the deposit of an
instrument of ratification, this is solely for information purposes; notification is not
a substantive part of the transaction by which the depositing state establishes treaty
relations with other states.  The act of deposit has the legal effect provided under
the treaty even if its notification by the depositary is delayed or goes unnoticed. 
Similarly, late notification by a depositary of the date of a treaty’s entry into force
does not affect that date.[130]
 
170.          In the “Case concerning right of passage over Indian territory”
resolved by the International Court of Justice, India, the respondent state, argued
that the petition of Portugal, the complainant state, was filed before a copy of the
Declaration of Portugal accepting the compulsory jurisdiction of the Court could
be transmitted to other states parties.  The International Court of Justice did not
accept this argument and held that the contractual relation between the parties and
the compulsory jurisdiction of the Court were established ipso facto by the fact of
making a declaration.  The Court added that a State accepting the jurisdiction of
the Court must expect that an Application may be filed against it before the Court
by a new declarant State on the same day on which that State deposits its
Acceptance with the Secretary-General.  Moreover, the Court found that the
declarant State was concerned only with the deposit of its Declaration with the
Secretary-General and was not concerned with the duty of the Secretary-General.
[131]

 
171.          The Commission concurs with what the State of Costa Rica says
in its reply to the instant interstate communication, that “the acceptance of the
competence of the international organs takes effect when the declaration has been
deposited with the Secretary General of the Organization, since that is the moment
as of which the state has consented to the control of an international organ.” [132] it
should be noted that on several occasions prior to the hearing of October 18, 2006,
the State of Costa Rica reiterated its position in the sense that the deposit, rather
than its transmission to the states, creates legal effects.  Thus, the Costa Rican state
said that the moment that "Nicaragua accepted and deposited that declaration [...]
is when the acceptance actually took effect.”[133]
 
172.          The Commission is also mindful of the fact that when the State of
Costa Rica took receipt of the communication presented against it by the State of
Nicaragua upon its transmission by the Commission, it also received a copy of the
declaration duly deposited by the State of Nicaragua with the Secretary General,
for which reason it cannot claim that the fact that its transmission by the General
Secretariat did not occur until October 2006 had kept it in the dark or was in any
way detrimental
 
173.          As the State of Nicaragua points out, “The question of openness
alleged on October 18 last [by the State of Costa Rica], is immaterial because it has
occasioned no detriment to the State of Costa Rica, which was officially informed
of the acceptance of the competence of the IACHR by the State of Nicaragua when
it was notified of the petition of February 6 last; it continued to act and receive
communications on said case, attended the hearing in Guatemala of July 18, 2006,
without offering any manner of objections on this point and it is only now, on
October 18, 2006, that it claims an apparent and timely lack of openness in
connection with something of which it was made directly aware when it received a
copy of the complaint of Nicaragua against the State of Costa Rica last February
6.”[134]
 
174.          In that connection, the argument of the State of Costa Rica
regarding the supposed lack of competence of the Commission because the State of
Nicaragua had failed formally to deposit the declaration of acceptance of
competence, should have been submitted at the earliest possible procedural
opportunity by the Costa Rican State. In view of the fact that the State of Costa
Rica was notified, upon its receipt of the initial communication of the State of
Nicaragua, that the respective declaration of acceptance of the competence of the
Commission had been delivered to the General Secretariat, the Commission
considers that any delay in the transmission of this declaration to the other member
states of the OAS could not have impaired the rights of the State of Costa Rica,
which was fully informed of the existence of the declaration and the respective
deposit thereof.
 
175.          In addition, the State of Costa Rica has argued that even if the
State of Nicaragua had formally deposited the necessary declaration, the IACHR
was not exempt from examining the procedural prerequisites of validity of that
declaration, and asserted that the Commission was guilty of having omitted to
conduct a prior assessment of its competence before it transmitted the interstate
communication.  On this point, the Commission reiterates that when it received the
communication presented by the State of Nicaragua for alleged violations of rights
protected in the Convention by the State of Costa Rica, the IACHR verified, in
accordance with Article 45 of the Convention, that according to the record both the
Nicaraguan State and the Costa Rican State had recognized the competence of the
Commission and had deposited with the General Secretariat their respective
declarations of acceptance of competence, which are the only “procedural
prerequisites of validity” that the Commission is required to verify.
 
176.          Given that sufficient proof was presented along with the
communication of the receipt by the Secretary General, on February 6, 2006, of the
note by which the State of Nicaragua had deposited its declaration of acceptance of
the competence of the Commission, the Commission assumes that the General
Secretariat has performed its duty as depositary.  Even though the Commission was
concerned to learn that there was a delay in the communication of this declaration
to other member states, the Commission considers that said delay in the
notification of other members cannot be imputed to the IACHR or affect the
processing of this communication.
 
177.          Based on the foregoing, the Commission finds that in processing
this interstate communication it has observed all the rules contained in the
Convention and its Rules of Procedure that govern the processing of
communications in which a state party alleges that another state party has
committed a violation of a human right set forth in the American Convention, and
that the interstate communication under examination fulfils the requirements
contained in Article 45 of the American Convention. Therefore, the Commission
now turns to analyze if the admissibility requirements set forth in the Convention
for processing individual petitions and communications between states have been
met.
 
C.        Competence of the Commission ratione personae, ratione loci,
ratione temporis and ratione materiae
 
1.       Competence ratione personae
 
178.          Before initiating its analysis of its competence ratione
personae the Commission feels it necessary to clarify that it is only competent to
examine petitions or communications concerning alleged violations of human
rights in connection with OAS member states. Accordingly, it will only examine
the allegations contained in the first section concerning all the persons named in
the communication presented by the State of Nicaragua as responsible for the acts
denounced,[135] to wit: 
 
i.        The State of Costa Rica, “ for the,  at least, remiss conduct of
the members of the Armed Police Corps present at the horrific death
of Natividad Canda and for the passiveness, tardiness, and delay of
justice;” “for failure to ensure due process guarantees before a
competent judge and for the delay of justice in the case of the murder
of José Ariel Urbina Silva (sic), the grievous injuries sustained by
José Antonio Martínez Urbina and Francisco Angulo García and the
stoning injuries inflicted on Rito Obando and Elder Angulo García”; “
for failure to ensure to the persons subject to its jurisdiction the rights
contained in the Pact of San Jose, in particular the rights to life,
humane treatment, and security;” and for having “ failed to fulfill its
duty to contribute effectively to stop and eradicate --through
mechanisms that go beyond mere declarations-- discrimination and
xenophobia.”
ii.        Mr. Fernando Zúñiga, “the owner of the dogs that are at his
workshop and domicile at the entrance to the cemetery in Lima,
Cartago and who opposed the shooting of the dogs that caused the
violent death of Natividad Canda.”
iii.        Mr. Luis Hernández, “security guard at the aforementioned
workshop who initially refused the police admittance to said
workshop.” 
iv.        Mr. Hugo Ceciliano Rodríguez, “chief of the security guard,
Mr. Luis Hernández, for having prevented the shooting of the dogs
because the owner did not approve their killing.”
v.         The owners of the Internet portals, webmasters, participants in
the Internet groups, and the persons who originated and reproduced
the xenophobic jokes and messages, inciting racial hatred and
discrimination, as well those who proposed hate crimes through that
medium.”
 
179.          The Inter-American Commission is not competent to determine
individual responsibilities, whether of agents of the state or of third parties who
participate in alleged violations. Rather, its competence is to determine the
international responsibility of OAS member states. Therefore, the Commission is
not authorized to examine the alleged responsibility of the persons named in
sections ii, iii, iv and v of the preceding paragraph, as the State of Nicaragua
requests in its communication. On the subject of acts allegedly committed by
private individuals, the Commission is compelled to point out that it may only
examine the direct responsibility of the State of Costa Rica as a result of the
actions of its agents, or the indirect responsibility of the Costa Rican State arising
from its failure to take action against acts of private individuals that violate rights
recognized in the Convention.
 
180.          In this connection, the jurisprudence of the Inter-American system
is emphatic when it states that, “in principle, any violation of rights recognized by
the Convention carried out by an act of public authority or by persons who use
their position of authority is imputable to the State. However, this does not define
all the circumstances in which a State is obligated to prevent, investigate and
punish human rights violations, nor all the cases in which the State might be found
responsible for an infringement of those rights. An illegal act which violates
human rights and which is initially not directly imputable to a State (for example,
because it is the act of a private person or because the person responsible has not
been identified) can lead to international responsibility of the State, not because of
the act itself, but because of the lack of due diligence to prevent the violation or to
respond to it as required by the Convention.”[136]
 
181.          Having clarified this point, the Commission notes that the State of
Costa Rica has been a party to the American Convention since April 8, 1970, when
it deposited its instrument of ratification.  For its part, the State of Nicaragua
became a party to the American Convention on September 25, 1979, when it
deposited its instrument of ratification.  States parties to the Convention are
empowered under Article 45 of the American Convention to present
communications in which they allege that another state party has committed a
violation of a human right set forth in the Convention, provided that they declare
that they recognize the competence of the Commission to receive and examine
such communications.
 
182.          The State of Costa Rica has argued, since October 18, 2006, that
the State of Nicaragua lacks standing to sue under Article 45 of the American
Convention because the deposit of its declaration of recognition of the competence
of the Commission was not completed before the communication was presented. 
In the foregoing section, the Commission has established the full validity of the
declaration of Nicaragua in accordance with Article 45 of the Convention since
February 6, 2006.
 
 183.          Furthermore, among the evidence put forward during the stage on
merits, the State of Costa Rica presented a press report according to which the
attorney who is pursuing the case of the Canda family in the Costa Rican courts,
was said to be upset that the Nicaraguan State had decided to take the case to the
Inter-American Commission.[137]  In this connection, the Commission considers it
timely to recall that nothing in the Convention requires those who present a
petition or a communication to be victims per se, or to have a personal, direct, or
indirect interest in the decision on said petition or interstate communication. Nor
does the Convention require the approval of the alleged victim or that petitioners
present powers of attorney from alleged victims.
 
184.          In contrast to other systems for protection of human rights, the
inter-American system allows various types of petitioners to present petitions on
behalf of victims.  Indeed, according to Articles 44 and 45 of the Convention, any
person or group of persons, or any nongovernmental entity legally recognized in
one or more member states of the Organization, as well as any state that declares
that it recognizes the competence of the Commission to receive and examine
communications between states, may lodge petitions or communications that allege
that a State Party has committed a violation of a human right set forth in this
Convention
 
185.          Thus, by virtue of the fact that the State of Nicaragua deposited its
declaration of recognition of the competence of the Commission to receive and
examine communications between states, the IACHR is empowered to admit and
examine the communication that it presented against the State of Costa Rica.
 
186.          The interstate communication presented by the State of Nicaragua
names the following persons as victims:[138]
 
i.      Natividad Canda Mairena
ii.      José Ariel Silva Urbina
iii.     José Antonio Martínez Urbina
iv.     Francisco Angulo García
v.      Rito Antonio Obando
vi.      Elder Angulo García
vii.     Nicaraguan migrant population in a vulnerable situation in
Costa Rica.
 
187.          The Commission finds that it is competent ratione personae to
take up the cases connected with Messrs. Natividad Canda Mairena, José Ariel
 Silva Urbina, José Antonio Martínez Urbina, Francisco Angulo García, Rito
Antonio Obando and Elder Angulo García, insofar as these alleged victims are
individuals in respect of whom the State of Costa Rica undertook to observe and
ensure the rights recognized in the Convention.
 
188.          The Commission also feels compelled on this point to analyze if it
is competent to examine the interstate communication presented against the State
of Costa Rica inasmuch as it refers not only to the aforesaid duly identified alleged
victims, but also to a widespread group of potential victims, namely the
"Nicaraguan migrant population in a vulnerable situation in Costa Rica.”
 
189.          It should be recalled that, to date, the jurisprudence of the
Commission has been guided by its interpretation of Article 44 of the American
Convention, according to which, for a petition to be admissible, there must be
specific individually identified victims or refer to a specific and set group of
victims composed of distinguishable individuals. 
 
190.          For example, in Case 12.404 v Peru,[139] the Commission
examined a petition in which the Ombudsman said that it was acting in
representation in abstracto, inter alia, on the collective behalf of the women who
were potential voters in the form of an actio popularis. In this case, the petitioners
argued that said violations were committed to the detriment of a series of "direct"
victims whom they identified by name, and also 892,868 potential women
candidates and women voters in the electoral districts of La Libertad, El Callao and
Ica, in Peru. On that occasion, the Commission admitted the petition only with
respect to those victims who were duly individually identified and distinguished in
accordance with the jurisprudence of the inter-American system.
 
191.          Another precedent is provided by Case 11.553 v Costa Rica, [140] in
which the Commission expressly stated that “[t]he liberal standing requirement of
the inter-American system should not be interpreted, however, to mean that a case
can be presented before the Commission in abstracto.  An individual cannot
institute an actio popularis and present a complaint against a law without
establishing some active legitimation justifying his standing before the
Commission […] It is not sufficient for an applicant to claim that the mere
existence of a law violates her rights under the American Convention, it is
necessary that the law have been applied to her detriment.” 
 
192.          The Commission was of the same opinion in Case 11.625 v
Guatemala.[141] The petition in that case was initially lodged in abstracto and
alleged that several provisions in the Guatemalan civil code created distinctions
between men and women which are discriminatory and violate the Convention. In
turn, the petitioners claimed that Ms. María Eugenia Morales Aceña de Sierra had
been directly affected by the challenged legislation, and also represented other
women victims in Guatemala. In that case, the Commission considered that its
competence refers to acts that affect the rights of a specific person or persons, and
requested that the status of María Eugenia Morales de Sierra as the victim be
formalized, in order to proceed to process the petition within its case system. The
petitioners amended their original petition for a decision on the compatibility of the
provisions and in its place sought a decision on the individual complaints of the
named victim.
 
193.          With the development of the system for protection of human
rights in favor of an interpretation that permits effective application of the
guarantees set forth in the Convention, this position has gradually being
complemented by one that recognizes the possibility of protecting a plurality of
persons who had not previously been named, provided they are identifiable and
distinguishable.[142] It is not necessary, therefore, to mention each individual by
name, but to state objective criteria by which to distinguish the collection of
identifiable persons as possible victims of violations by the fact of belonging to a
group or community, without that entailing a class action on behalf of the entire
population under the jurisdiction of the State, or a segment so vast as to render
individual identification of the victims meaningless. 
 
194.          Having said that, the above-described criteria have been
developed in the framework of petitions lodged pursuant to Article 44 of the
Convention. Accordingly, the Commission must examine if Article 45 of the
American Convention can be interpreted under the same guidelines as Article 44;
in other words, if communications between states, like individual petitions, must
individually identify the alleged victims of a violation in order to be admitted, or if,
to the contrary, states are empowered to present communications in order to ensure
the observance erga omnes by states parties of their obligations under the
Convention, as a collective guarantee mechanism.
 
195.          In this regard, the Commission observes that the wording of
Articles 44 and 45 of the Convention, though similar, is not identical; the former
provides that the Commission may admit petitions “containing denunciations or
complaints of violation of this Convention by a State Party”, while the latter states
that the Commission may admit communications “in which a State Party alleges
that another State Party has committed a violation of a human right set forth in this
Convention.” The Commission observes that the fact that for petitions presented
pursuant to Article 44 the Convention refers to “denunciations or complaints of
violation of this Convention,” whereas for communications presented under Article
45 the Convention refers to allegations concerning “a violation of a human right set
forth in this Convention,” suggests an intention that states should be able to bring
to the attention of the IACHR not only situations that have affected individual or
identifiable victims but also generalized situations of widespread or systematic
violation of human rights.
 
196.          The foregoing does not mean that states may present to the
Commission abstract cases that are not designed to protect the rights and freedoms
of persons protected by the Convention; it only means that if a State party
considers that another State party has committed generalized human rights
violations it may turn to the Commission of to denounce this situation without the
need to individually identify each possible victim.
 
197.          The American Convention enshrines a system that constitutes a
genuine regional public order the preservation of which is in the interests of each
and every state party.  The intention of the signatory states is the preservation of
the system for protection of human rights, and if a State violates its obligation to
ensure the human rights of the individuals under its jurisdiction it also violates its
undertaking to other states.  Therefore, the Convention has provided a mechanism
that enables states to present communications to the IACHR in order to protect the
regional system of human rights and contribute to the fulfillment of the guarantees
recognized in the Convention.
 
198.          In order that this collective guarantee mechanism might be
effectively applied, the Commission must interpret it keeping in mind the position
of the Inter-American Court, in the sense that states parties to the Convention must
guarantee compliance with its provisions and its effects (effet utile) within their
own domestic laws.[143]  This principle applies not only to the substantive
provisions of human rights treaties (in other words, the clauses on the protected
rights), but also to the procedural provisions,[144] such as the one concerning the
power of states to present communications alleging that another state has
committed a violation of the Convention.
 
199.          The Commission is required to interpret the Convention taking
into account the object and purpose of the international system for protection of
human rights. The provision that recognizes the competence of the Commission to
receive and examine communications between states is a clause that is essential for
the effectiveness of the international protection mechanism and, therefore, should
be interpreted and applied in such a way that the guarantee that it establishes is
genuinely practical and effective, bearing in mind the special nature of human
rights treaties and their collective implementation.  That provision enshrines the
collective intention of the American States to guarantee the preservation of the
inter-American public order in the area of human rights.
 
200.          Thus, the Commission must interpret the mechanism enshrined in
Article 45 of the Convention not as the right of a State with the purpose of
enforcing observance of its rights or particular interests, but with the purpose of
enabling the Commission to take steps against possible violations of the regional
public order. It is this interpretation that permits the collective guarantee
mechanism provided in Article 45 to be implemented.
 
201.          The notion of collective guarantee recognized in human rights
treaties has been aptly described by the Human Rights Committee in General
Comment 31. The Committee observed that “every State Party has a legal interest
in the performance by every other State Party of its obligations. This follows from
the fact that the 'rules concerning the basic rights of the human person' are erga
omnes obligations and that […] there is a [stipulated] obligation to promote
universal respect for, and observance of, human rights and fundamental freedoms.
Furthermore, the contractual dimension of the treaty involves any State Party to a
treaty being obligated to every other State Party to comply with its undertakings
under the treaty. In this connection, the Committee reminds States Parties of the
desirability of making the declaration contemplated in article 41 [Article 41
recognizes the right of States parties to present communications claiming that
another State Party is not fulfilling its obligations under the Covenant]. It further
reminds those States Parties already having made the declaration of the potential
value of availing themselves of the procedure under that article. […] Accordingly,
the Committee commends to States Parties the view that violations of Covenant
rights by any State Party deserve their attention. To draw attention to possible
breaches of Covenant obligations by other States Parties and to call on them to
comply with their Covenant obligations should, far from being regarded as an
unfriendly act, be considered as a reflection of legitimate community interest.”[145]
 
202.          By the same token, the preamble and articles of the American
Convention permit recognition of the existence of a regional public order that all
States parties are obliged to ensure.  The preamble of the Convention mentions the
purpose of consolidating “in this hemisphere, within the framework of democratic
institutions, a system of personal liberty and social justice based on respect for the
essential rights of man.”
 
203.          The existence of a system of collective guarantee is also evinced
by the fact that, in accordance with Article 35 of the American Convention, “[t]he
Commission shall represent all the member countries of the Organization of
American States,” which means that it exercises its control functions in
representation of all the OAS member states.
 
204.          Similarly, the European system of human rights has interpreted
the provision on interstate petitions contained in the European Convention in the
sense that when a state party presents a communication alleging a violation of the
Convention it is not exercising a right of action to demand observance of its rights,
but drawing the attention of the Convention to an alleged violation of the public
order of Europe.[146] The Court has also held that the European Convention creates,
over and above a network of mutual, bilateral undertakings, objective obligations
which, in the words of the Preamble, benefit from a "collective enforcement".[147]
 
205.          The Inter-American Court has consistently held that human rights
treaties are living instruments whose interpretation must consider the changes over
time and present-day conditions.[148] Were a generalized practice of human rights
violations to exist at present in one of the states parties to the Convention, and
another state party were to present a communication denouncing those violations to
the Commission, the IACHR considers that it could not insist that the denouncing
state individually identify each of the victims of this generalized situation of
violations because such a requirement would be contrary to the spirit of collective
guarantee that shapes the American Convention on Human Rights.
 
206.          In the instant case, the State of Nicaragua says that it turns to the
IACHR because it has the “duty to protect its nationals and safeguard their human
rights, wherever they may be, and the obligation to denounce the deplorable
situation of discrimination and xenophobia of which Nicaraguans in the sister
republic of Costa Rica are victims, irrespective of their situation or immigration
status, which poses a high risk to the enjoyment and exercise of their fundamental
freedoms and human rights.”[149]  The Commission notes that the State of Costa
Rica undertook to respect and ensure the rights recognized in the American
Convention for all persons subject to its jurisdiction, regardless of their national
origin.
 
 207.          In the light of the foregoing considerations, the Commission
concludes that it also has ratione personae competence to take up the interstate
communication presented by the Nicaraguan State on behalf of the Nicaraguan
migrant population in Costa Rica, irrespective of their situation or immigration
status.
 
2.          Competence ratione loci
 
208.          The Commission is competent ratione loci to examine this
interstate communication because it alleges violations of rights protected in the
American Convention that are purported to have occurred within the territory of a
state party to said treaty.
 
3.          Competence ratione temporis
 
209.          In this section the Commission must examine if the facts alleged
in the petition occurred when the obligation to observe and ensure the rights set
forth in the American Convention was in force for the Costa Rican State and when
the competence of the Commission to examine allegations concerning violations of
the Convention in the framework of an interstate communication had been
established.
 
210.          In this connection, in its reply to the interstate communication, the
State of Costa Rica invoked the objection that the IACHR lacked jurisdiction
because Nicaragua allegedly deposited its declaration of acceptance of the
competence of the Commission after the facts.  Thus, in the brief containing its
reply to the interstate communication, the State of Costa Rica argued that “the
declaration of acceptance by Nicaragua of the competence of the Commission was
made after the facts: its petition seeks to violate the proper balance between the
imperatives of protection and the principles of equity and legal certainty among the
parties.”[150] In the brief containing its observations on merits, the Costa Rican State
reiterated its objection that the Inter-American commission lacked jurisdiction to
examine the communication presented by Nicaragua given “that the alleged acts
occurred on a date after the disputed –or, to be more exact, prior to October 27,
2006, nonexistent– deposit by the State of Nicaragua of its acceptance of the
discretionary competence of the Commission to take up interstate petitions.”[151]
 
211.          For its part, the State of Nicaragua has argued that its declaration
of February 2006 was included as a third paragraph to the declaration of 1991 and
that the recognition of the Commission's competence is governed exclusively by
Article 45 of the Convention, which, the State argues, contains no restrictions on
retroactive application, for example, despite Costa Rica’s claims.[152]
 
212.          In first place, the Commission notes that, as provided by the third
paragraph of Article 45 of the Convention, states parties have the option of limiting
their declaration of recognition of the competence of the Commission in order to
make it valid for an indefinite time, for a specified period, or for a specific case.
With regard to the two states concerned in this interstate communication, the
Commission observes that neither of them exercised the option to establish time
constraints or any other limits on the competence of the Commission.
 
213.          Accordingly, the only time constraints on the competence of the
Commission are those set forth in the Convention. The American Convention
clearly provides that both the state that presents the communication and the state
against which it is presented must recognize the competence of the IACHR to
process communications between states in order for the Commission to exercise its
competence in a particular case.  In the instant case both states have recognized
this competence.
 
214.          The question that the Commission must now resolve is if its
competence to examine the interstate communication dates from the day on which
the state against which the communication was presented deposited its declaration
of recognition of said competence (July 2, 1980), or from the day that the State that
presented the communication deposited its declaration of recognition of the
Commission’s competence (February 6, 2006).
 
215.          Given that the Convention provides that communications between
states shall be admitted and examined only if they are presented by a State Party
that has made a declaration recognizing the competence of the Commission to
examine communications between states, and if they are presented against a State
party that has made such a declaration, the Commission considers that the
Convention requires reciprocity in order for communications between states to be
valid.
 
216.          Based on this requirement, until it has been determined that the
essential prerequisite of reciprocity exists, the Commission is not competent to
examine possible violations of the American Convention in the framework of an
interstate communication. It is as of February 6, 2006, that both states parties in
this communication recognized the competence of the Commission to receive and
examine communications between states and, therefore, the IACHR was competent
from that point forward.
 
217.          The fact that the Commission may not examine acts that occurred
prior to the deposit of the declaration of recognition of competence of the Inter-
American Commission is wholly consistent with the principle of non-retroactivity
of international treaties set forth in Article 28 of the Vienna Convention on the
Law of Treaties of 1969, according to which, “[u]nless a different intention
appears from the treaty or is otherwise established, its provisions do not bind a
party in relation to any act or fact which took place or any situation which ceased
to exist before the date of the entry into force of the treaty with respect to that
party.”
 
218.          Although, strictly speaking, Article 28 of the Vienna Convention
applies to treaties, which are of a nature different to declarations concerning
recognition of competence of an organ, this provision contains an important
generally applicable principle of treaties: the principle of non-retroactivity of
conventional provisions unless agreed otherwise by the states.  The principle of
non-retroactivity applies to all acts connected with a treaty, including declarations
concerning the competence of an international organ such as the IACHR.  The
principle of non-retroactivity of international standards recognized in the Vienna
Convention on the Law of Treaties has also been invoked by the Inter-American
Court when it has had cause to make a decision on its competence by reason of
time.  The Court has determined based on this principle that it is competent only to
examine acts that occur after the contentious jurisdiction of the Court is
recognized.[153]
 
219.          The foregoing does not preclude examination by the Commission
of allegations concerning violations that predate the deposit of the declaration of
acceptance of the competence of the Commission if said violations are continuous
over time; in other words, if they continue to occur after the competence of the
Commission is recognized. In this respect, the Inter-American Court has
consistently held that it is possible to examine continuous violations without
infringing the principle of non-retroactivity.[154]
 
220.          Accordingly, the Commission has ratione temporis competence to
examine any acts and omissions that have occurred since February 6, 2006, the
date on which it was determined that both states parties in this communication
recognized the competence of the Commission, in addition to the effects of
possible violations. Furthermore, the Commission is competent to examine
continuous violations that commenced before the date of the declaration of
recognition but which have continued after said declaration of recognition
 
4.         Competence ratione materiae
 
221.          Finally, the Commission is competent ratione materiae, because
the interstate communication alleges violations of human rights protected by the
American Convention.
 
D.         Admissibility requirements for the interstate communication
 
1.        Characterization of the Facts Alleged
 
222.          The Commission considers it timely to recall that that migration is
a complex process and that the forms it takes respond to the economic, political,
social and cultural interests of the countries of origin, of transit and of final
destination, as well as the motivations and hopes of the migrants themselves. Like
migration, xenophobia, that is, the irrational hatred of people foreign or perceived
as foreign, is a complex social phenomenon.[155] When faced by this situation, it is
the obligation of the States to adopt positive measures to revert or change any
discriminatory situation that exists in society and to safeguard the rights recognized
in the Convention for all persons under their jurisdiction without distinction for
nationality.
 
223.          In light of these considerations, the Commission finds that, prima
facie, the communication describes allegations, which, if proven, could constitute
violations of the rights protected by Articles 8 (Right to a fair trial), 25 (Right to
judicial protection), and 24 (Right to equal protection) of the Convention, in
connection with the general obligation  to respect and ensure rights contained in
Article 1(1) of said international instrument, inasmuch as they refer to the possible
existence of a systematic practice of discrimination against all Nicaraguan
migrants in Costa Rica. 
 
224.          As regards the alleged violation, asserted by the State of
Nicaragua, of the rights recognized in Articles 2, 7, 8, and 28 of the Universal
Declaration of Human Rights; in Articles II and XVIII of the American
Declaration of the Rights and Duties of Man; and in Article 9 of the Inter-
American Democratic Charter, the Commission observes that for the States Parties
to the Convention, the specific source of their obligations with respect to the
protection of human rights is, in principle, the Convention itself.[156]
 
225.          Once the American Convention came into force for the State of
Costa Rica it became the principal source of legal norms for application by the
Commission insofar as the petition alleges violations of substantially identical
rights in other instruments.[157] In this case, the rights allegedly violated by the State
of Costa Rica under the Universal Declaration and the American Declaration enjoy
similar protection under the Convention.  Therefore, given that in the instant case
the violations alleged by the Nicaraguan State concern rights that are similarly
protected by the aforesaid instruments, the Commission will only address the
alleged violations of the standards contained in the Convention and not those
contained in the Universal Declaration or the American Declaration.
 

226.          It should be clarified that, pursuant to Article 29(d) of the

Convention, this international instrument does not exclude or limit the effect that
the American Declaration of the Rights and Duties of Man and other international
acts of the same nature may have. Thus, the American Declaration contains and
defines the fundamental human rights referred to in the Charter, and the Charter of
the Organization cannot be interpreted and applied as far as human rights are
concerned without relating its norms to the corresponding provisions of the
Declaration.  Therefore, in its analysis, the Commission may take into
consideration the provisions of the Universal Declaration, the American
Declaration and the Inter-American Democratic Charter, insofar as they may be
pertinent to interpret the Convention and determine possible violations committed
by the State of Costa Rica of the human rights that it enshrines.
 
227.          However, this is not the proper stage in the proceedings to
determine whether or not the American Convention has been violated.  For the
purposes of admissibility, the IACHR simply has to determine if the arguments set
out in the petition could tend to establish a violation of the American Convention,
as required under Article 47(b) thereof, and whether the petition is "manifestly
groundless" or "obviously out of order," as paragraph (c) of the same Article
provides.  The standard by which to assess these extremes is different from the one
needed to decide the merits of a petition.  At this stage the IACHR need only
perform a prima facie evaluation that does not imply any prejudgment or advance
opinion on the merits of the petition. The Commission only performs a prima
facie evaluation to determine if the petition tends to show an apparent or potential
violation of a right guaranteed by the Convention but does not at this stage
establish the existence of said violation. The examination of the nature of the
allegations is a summary analysis that does not imply any prejudgment or advance
opinion on merits. By establishing two clearly separate phases -one for
admissibility and the other for the merits- the Commission's own Rules of
Procedure reflect the distinction between the evaluation the Commission must
make to declare a petition admissible, and the evaluation required to establish a
violation.
 
 
228.          Based on this analysis of the interstate communication, the
Commission considers that the allegations of the State of Nicaragua do not
correspond to the situations contained in Article 47(b) and (c) of the Convention
and, therefore, meet the admissibility requirements set forth in the American
Convention. 
 
2.         Duplication of proceedings and res judicata
 
229.          Articles 46(1)(c) and 47(d) of the Convention establish as
admissibility requirements, respectively, that the subject matter of the petition or
communication is not pending in another international procedure for settlement,
and that the petition or communication is not substantially the same as one
previously studied by the Commission or by another international organization. 
 
230.          The Commission considers that the subject matter of the interstate
communication is neither pending in another international procedure for
settlement, nor substantially the same as a petition or communication previously
studied by the Commission or by another international organization.  Therefore,
the requirements established at Articles 46(1)(c) and 47(d) of the Convention have
been met. 
 
3.         Exhaustion of domestic remedies
 
231.          Article 46(1)(a) of the Convention provides that for a
communication lodged with the Inter-American Commission to be admissible in
accordance with Article 45 of the Convention, it is necessary that the remedies
under domestic law have been pursued and exhausted in accordance with generally
recognized principles of international law.  This rule is designed to allow national
authorities to examine alleged violations of protected rights and, as appropriate, to
resolve it before it is taken up in an international proceeding.  It should be clarified
that the rule of exhaustion of domestic remedies applies in principle both to
communications between states and to individual petitions.
 
 232.          35.       The prior exhaustion rule applies when there are actually
available in the national system suitable and effective remedies to repair the
alleged violation.  In that connection, Article 46(2) specifies that the rule does not
apply when: the domestic legislation of the state concerned does not afford due
process of law for the protection of the right in question; the alleged victim did not
have access to the remedies under domestic law; or there has been unwarranted
delay in rendering a final judgment under said remedies.  As Article 31 of the
IACHR Rules of Procedure provides, when the petitioner invokes one of these
exceptions, it is up to the State concerned to demonstrate that the remedies under
domestic law have not been previously exhausted, unless that is clearly evident
from the record. 
 
Allegations of the parties on the rule of exhaustion of domestic
remedies:
 
233.          The IACHR must first analyze the allegations of the parties with
respect to exhaustion of domestic remedies.  According to the interstate
communication presented by the State of Nicaragua, "the Ministry of Foreign
Affairs of Nicaragua, on behalf of the State, on November 17, 2005, and December
6, 2005, requested the Ministry of Foreign Affairs and Worship of Costa Rica to
carry out a thorough, prompt, and exemplary investigation to punish those
responsible for the brutal death of Natividad Canda Mairena and the murder for
reasons of nationality of José Ariel Urbina Silva (sic). The Ministry of Foreign
Affairs reiterated its demands in communications of November 18, 2005 and
January 30, 2006, requesting that all testimonies given to the press be preserved,
guaranteeing that such acts did not go unpunished.” [158] On this point, the
Commission reiterates that extrajudicial measures of this type cannot be considered
a suitable recourse for the purposes of determining if the remedies under domestic
law have been exhausted.
 
234.          The State of Nicaragua also alleged in its interstate
communication that "on one hand, the extreme poverty of the families of the
victims and, on the other, the delay of justice validate the arguments with respect
to exhaustion of domestic remedies.”[159]
 
235.          As regards the supposed extreme poverty of the families of the
victims, the State of Nicaragua alleged in its interstate communication that "the
mother of Natividad Canda, Ms. Francisca Mairena, traveled from Nicaragua to
Costa Rica and pursued proceedings at the OIJ but because she is very poor and
does not have residence in Costa Rica it is presumed that she has since returned to
Nicaragua. […] [T]he members of the Canda Mairena family in Costa Rica and
Nicaragua are very poor and, therefore, cannot be required to exhaust domestic
remedies, in accordance with Advisory Opinion OC-11/90 of the Inter-American
Court of Human Rights and the Judgment in the Godínez Cruz Case (Judgment on
Preliminary Objections of June 26, 1987). […] All the families of the Nicaraguan
victims are clearly very poor and do not have resources to spend on judicial
proceedings, in particular when we are faced with a delay of justice that makes
exhaustion of domestic remedies impossible.”[160]
 
236.          As to the alleged delay of justice, the State of Nicaragua
contended that “the specific time limits in the proceedings in the cases of Canda
and Urbina Silva (sic) et al. are excessively long and make the international control
of human rights virtually impossible and pointless.” [161] In that connection, the
State of Nicaragua mentioned that the judicial remedies available in Costa Rica
have not been effective and have lacked the necessary procedural guarantees.  To
the extent that the available remedies are inadequate, the State of Nicaragua
considers that there is no need to exhaust them. [162] The Nicaraguan State added
that “Costa Rica is obligated, by all available means, to protect all foreigners on its
soil, […] especially when their fundamental rights are at risk and the time limits
provided in the domestic laws are very far from reasonable and […] at odds with
the urgency of the situation that calls for immediate measures, since acts of
discrimination and xenophobia can lead to the loss of human life.”[163]
 
237.          In this connection, the State of Nicaragua considers that "the
legitimacy of a law does not depend on its content but on its consistency with the
standards of the international law of human rights.  In that sense, the fact that there
is a law in force in Costa Rica that permits such time limits, which at first sight
seem excessively long, does not release the State of Costa Rica from its obligations
under the Pact of San Jose and other instruments that provide for specific judicial
guarantees and recognize the need to apply due process within a reasonable
time.”[164] The State of Nicaragua asserts that “a reasonable time in situations of
this type cannot be measured by the same yardstick as for other situations where
the components of xenophobia and discrimination are not present. The delay of
justice in this case could encourage sentiments of xenophobia and discrimination
and make their precarious situation even more vulnerable.”[165]
 
238.          Finally, in the brief containing its arguments on merits, the State
of Nicaragua contended that the provisions on exhaustion of domestic remedies do
not apply when “there has been unwarranted delay in rendering a final judgment
under the aforementioned remedies.”[166] Concretely, the Nicaraguan State claims
that as of the date of presentation of its arguments on merits, “in the Canda
case approximately one year has passed and the Office of the Prosecutor has only
indicted two policeman, leaving uncharged six others who also committed offences
by omission because they merely stood by as witnesses to the horrendous incident
in which Natividad Canda was attacked by two Rottweiler dogs, to the satisfaction
of the security guard and of the owner of the workshop and the dogs. […] In the
Urbina Silva (sic) et al. case, approximately 336 days have elapsed and the Office
of the Prosecutor has not charged Juan Antonio Arguedas Calderón, the man who
committed the murder and injuries; the annex to the reply of Costa Rica shows that
as of March 8, 2006, 88 days after the crimes known as the La Guácima case, one
of the aggrieved, Francisco José Angulo García was called on to give his
statement.”[167]
 
239.          For its part, the State of Costa Rica did not waive the option to
invoke the rule of exhaustion of domestic remedies, which waiver would have been
valid in accordance with the precedents established by the IACHR and the Inter-
American Court.[168]  On the contrary, at the earliest possible opportunity in the
proceeding before the Commission, the Costa Rican State contended that
“domestic remedies have not been exhausted in either of the matters concerning
the alleged violation of human rights by the Costa Rican State. Both cases are
currently under examination by the appropriate judicial authorities […]. The time
taken in both investigations has been within lawful and reasonable limits in
accordance with Costa Rican law and the demands of due process, particularly
considering the complexity of the events and the type of rights that have been
affected --and that could be affected-- by the judicial proceedings.”[169]
 
240.          With regard to the argument of the Nicaraguan State according to
which the penury of the families of the victims renders exhaustion of domestic
remedies impossible, the State of Costa Rica claims that this exception is not
applicable because “in publicly actionable crimes the prosecution is responsible for
carrying out the investigation at the expense of the State, and for pressing charges
if there is sufficient evidence to do so.”[170] Therefore, the State of Costa Rica holds
that judicial proceedings in cases of this nature do not entail any financial cost for
the victims or their families. Furthermore, the Costa Rican State says that it
provides free technical assistance whenever it is needed by reason of the financial
situation of the person, without any distinction based on the nationality of the
victims or of those responsible for the punishable act. To corroborate said
argument, the State of Costa Rica includes among its annexes a Record of
Notification of Rights to the Victim in the case of Mr. Natividad Canda Mairena,
from which it can be seen that the Office of the Attorney General offered his
family advisory and representation services, which were refused because they
already had access to such legal advisory services. [171] The State of Costa Rica also
includes among its annexes a note by which Regino Canda Mairena, brother of the
victim, grants power of attorney to his private lawyer to act in the case concerning
the death of Mr. Natividad Canda Mairena [172] along with an identical note signed
by Juana Francisca Mairena, the mother of Mr. Natividad Canda Mairena.
[173]
 Furthermore, with regard to Mr. José Ariel Silva Urbina, the State of Costa
Rica says that it has repeatedly called on Francisco José Linares García to come for
the necessary medical examination but he has not come forward.
 
241.          As regards the allegations of Nicaragua regarding a supposed
delay of justice, the Costa Rican State insists that it has acted within the time limits
prescribed by the Costa Rican code of criminal procedure. The Costa Rican State
asserts that the cases of Messrs. Natividad Canda Mairena and José Ariel Silva
Urbina are in the hands of the appropriate judicial authorities, in accordance with
the due process established in its domestic law.  The State of Costa Rica says,
furthermore, that in none of the cases questioned by the State of Nicaragua has
there been a delay of justice and violation of due process guarantees.  On this
point, the Costa Rican State argues, citing Judgment 6347-94 of its country's
Constitutional Court, that the Constitution does not recognize a right to time limits,
but "the fundamental right of all persons to have their case settled within a
reasonable time, which has to be determined in each particular case, bearing in
mind: the complexity of the matter, (…) the consequences of the delay for the
parties, the guidelines and usual margins for the types of proceeding concerned,
and the average standard time for the disposal of similar matters by the authorities
in charge of those matters.”[174]
 
242.          In the brief containing its arguments on merits the State of Costa
Rica also claimed that the Costa Rican state judicial apparatus has responded
effectively in the cases of the deaths of Messrs. Canda Mairena and Silva Urbina,
and that the timely and effective state response has also followed the rules of due
process. It added that "it is not the interested parties that have expressed discontent
with the Costa Rican state apparatus and, in any case, should they be dissatisfied
with the outcome of their petitions they can appeal or seek an annulment of the
decisions in the criminal proceedings, or, in the event of a supposed delay of
justice, they have the possibility to challenge any decisions or acts in that
connection with the Constitutional Chamber of the Supreme Court of Justice.”[175]
 
243.          In keeping with the burden of proof, the State that alleges non-
exhaustion must indicate which domestic remedies should be exhausted and
provide evidence of their effectiveness.[176]  If the State concerned does not present
arguments on this requirement in a timely manner, it shall be assumed that it has
waived the right to allege failure to exhaust domestic remedies and, therefore, to
discharge the burden of proof incumbent on it. 
 
244.          As regards the domestic remedies that should be exhausted and
the effectiveness thereof, the Costa Rican State initially told the Commission that it
was unable to supply detailed information on sensitive matters that are at the
judicial investigation stage because to do so would violate the rules of due process
and the normal development of the criminal proceedings.[177] However, the State of
Costa Rica mentioned the possibility of appeal to the Constitutional Chamber of
the Supreme Court Justice to uphold any rights that they deem to have been
violated, which remedy, according to the Costa Rican State, has not been
exhausted in any of the cases.
 
245.          As to the effectiveness of the aforementioned constitutional
appeal, the State of Costa Rica says that since 1989 the Constitutional Court has
devoted itself not only to constitutional control, but also to the protection of the
human rights recognized by the Constitution and the international instruments
ratified by Costa Rica. It adds that the Constitutional Court has been fundamental
for the progressive development of human rights in Costa Rica due to the erga
omnes binding nature of its decisions, its readiness to receive and process
petitions, its promptness, and its modification of said norms.[178]
 
Considerations of the Commission on the alleged impossibility to
exhaust domestic remedies do to the indigence of the victims
 
246.          The Commission deems it timely to recall, in first place, that
merely because a person is indigent does not, standing alone, mean that he does not
have to exhaust domestic remedies, but that whether or not an indigent has to
exhaust domestic remedies will depend on whether the law or the circumstances
permit him to do so. That opinion was ratified by the Court in Advisory Opinion
11/90.[179]  The Commission has reiterated in its jurisprudence that a declaration of
indigence without any corroborating evidence is insufficient to establish that
“indigence" prevented the Petitioner from invoking and exhausting domestic
remedies.[180]
 
247.          In the instant case, the State of Costa Rica has shown that, as
regards the identification of those responsible for the deaths of Messrs. Leopoldo
Natividad Canda Mairena and José Ariel Silva Urbina, and the injuries to Messrs.
José Antonio Martínez Urbina, Francisco Angulo García, Rito Antonio Obando
and Elder Angulo García, these are matters for public action and, therefore, the
State investigates them ex officio without the need for a private accusation. 
Furthermore, the State of Costa Rica has demonstrated that the alleged victims or
their representatives had the opportunity to receive free technical assistance, which
is provided for by law in cases of financial hardship without any distinction based
on the nationality of the victims or of those responsible for the punishable act. The
record also shows that the relatives of one of the alleged victims, Mr. Natividad
Canda Mairena, has the access to advisory services from a private attorney.
 
248.          In as much as the respondent state has shown that the remedies
under domestic law were available for the injured parties in the cases of Messrs.
Canda and Silva, it was up to the complainant state to demonstrate that they were
unable to obtain the necessary legal assistance to protect or guarantee rights
recognized in the Convention.  Given that the State of Nicaragua has not provided
any evidence that would enable the Commission to determine that the indigence of
the victims prevented them from having access to the remedies under domestic
law, the Commission concludes that this exception is not applicable.
 
Considerations of the Commission on the alleged unwarranted delay in
rendering a final judgment under domestic remedies
 
249.          The Commission finds it necessary to recall that, as a general rule,
a criminal investigation and the respective proceeding should be carried out
promptly in order to ensure the attainment of justice.  However, at the same time, it
is necessary to afford the machinery of the domestic courts the necessary time to
properly weigh the arguments of all the parties, in order to form a certain
conclusion on the facts, and present a reasoned argument for their decisions. In
spite of the fact that, as the Inter-American court has ruled, the rule of prior
exhaustion must never lead to a halt or delay that would render international action
[…] ineffective.[181] The ultimate purpose of the rule of prior exhaustion of
domestic remedies is to give the State the opportunity to examine an alleged
violation of a right protected in the Convention and apply the mechanisms under its
internal law in order to remedy the situation before it is taken up in an international
proceeding.
 
250.          In the instant case, the events connected with the deaths of
Messrs. Leopoldo Natividad Canda Mairena and José Ariel Silva Urbina, and with
the injuries to Messrs. José Antonio Martínez Urbina, Francisco Angulo García,
Rito Antonio Obando and Elder Angulo García, occurred on November 10, 2005,
and December 4, 2005, respectively, and were brought to the attention of the Inter-
American Commission on February 6, 2006.  Accordingly, less than three months
had elapsed between the events and the time the interstate communication was
lodged with the Commission.
 
251.          However, the Commission has previously mentioned that in
examining exhaustion of domestic remedies a distinction must be made
between the time the petition is lodged and the pronouncement on its admissibility.
These two proceedings correspond to two different phases, which are easily
distinguished based on the legal effects of Article 33 of the Rules of Procedure,
which authorizes the Commission to ask the petitioner to complete the
requirements omitted when the petition is incomplete or inadmissible. [182] In other
words, as the petitioner has the opportunity to rectify deficiencies in the petition
after it is presented, the prerequisite of prior exhaustion of domestic remedies must
be fulfilled by the time the Commission examines that aspect.
 
252.          Accordingly, in adopting a decision on exhaustion of domestic
remedies, the Commission shall consider the status of domestic proceedings not at
the time that it took receipt of the petition, but when it issues its report. In the
course of processing the interstate communication, the Commission has received
very limited information on the domestic judicial proceedings in the cases
connected with this communication.  From the scant information received to date,
on which it is basing its decision in this case, the Commission finds with respect to
both cases that the alleged culprits have been identified and, at least in the case of
Mr. Natividad Canda Mairena, two policemen have been formally charged.  The
Commission considers that the State of Nicaragua has not provided sufficient
evidence from which to conclude that there has been a delay on the part of the
Costa Rican judicial authorities in these cases, nor that said delay is unwarranted. 
Therefore, the exception of unwarranted delay is not applicable to the cases of
Messrs. Leopoldo Natividad Canda Mairena, José Ariel Silva Urbina, José Antonio
Martínez Urbina, Francisco Angulo García, Rito Antonio Obando and Elder
Angulo García. 
 
Considerations of the Commission on the impossibility to exhaust
domestic remedies due to the alleged existence of a generalized practice
of discrimination
 
253.          The State of Nicaragua has alleged that the cases of Messrs.
Leopoldo Natividad Canda Mairena, José Ariel Silva Urbina, José Antonio
Martínez Urbina, Francisco Angulo García, Rito Antonio Obando and Elder
Angulo García, are not isolated incidents but constitute evidence of the existence
of a generalized practice of discrimination in Costa Rica.  In that regard, the State
of Costa Rica has alleged that the case is composed of "several closely
interconnected matters: the crime against Natividad Canda; the wave of
discrimination and xenophobia that the case generated, the fatal outcome of which
was the murder of José Ariel Urbina Silva (sic) and the grievous injuries to five of
his countrymen, among others, as well as the prevailing sense of impunity.”[183] The
Nicaraguan State adds that the “Canda case and, in particular, the Urbina Silva
(sic) case, are two incidents of human rights violations that, while certainly very
important, are nonetheless symptomatic of the climate of xenophobia that has
existed and been accepted in Costa Rica for many years, as well as of the failure of
the Costa Rican authorities to take steps against it.  Accordingly, even had the
Canda case not occurred, it is the treatment of this case and of a subsequent hate
crime that resulted from it and from the climate of xenophobia that Costa Rica has
failed to tackle properly, that constitutes a violation of human rights.”[184]
 
254.          The State of Costa Rica, for its part, has denied the existence of a
generalized situation and has insisted that "both the case of Mr. Natividad Canda
Mairena and the case of Mr. José Ariel Silva Urbina are regrettable situations and
isolated incidents.  The assertion of the petitioner that these are acts permitted by
the Costa Rican state is unacceptable, as is the affirmation that they occurred in a
context of generalized discrimination and xenophobia.”[185] In the brief containing
its arguments on merits the State added that these have been sit isolated situations
in a context of public policies which, while for obvious reasons cannot be perfect,
are, nevertheless, favorable to the population of immigrants and foreign residents,
in particular Nicaraguans, on Costa Rican soil.
 
255.          Based on its examination of the arguments and evidence
presented by the two states, the Commission finds that the allegation of the
existence of a generalized practice of discrimination against the Nicaraguan
migrant population in Costa Rica is not manifestly groundless nor obviously out of
order.
 
256.          The Commission notes that these arguments have an effect on the
question of exhaustion of domestic remedies since, in a widespread climate of
discrimination such as the one alleged, the remedies available under domestic law
could become illusory or ineffective for all Nicaraguans in Costa Rica, including
Messrs. Leopoldo Natividad Canda Mairena, José Ariel Silva Urbina, José Antonio
Martínez Urbina, Francisco Angulo García, Rito Antonio Obando and Elder
Angulo García.
 
257.          When the existence is alleged of a generalized practice of acts
incompatible with the Convention which are shown to be officially tolerated,
thereby rendering domestic proceedings futile, the exception to the rule of
exhaustion of domestic remedies is applicable because it is reasonable to presume
that no adequate or effective remedies exist to remedy a generalized situation.
 
258.          Since its inception, the Inter-American Commission on Human
Rights was aware that it could not insist that victims of widespread human rights
violations meet the same requirements vis-à-vis exhaustion of domestic remedies. 
It was this reasoning that led the Second Special Inter-American Conference held
in 1965[186] to adopt a rule of interpretation according to which in the event of
systematic generalized violations, such a situation gives rise to a presumption iuris
tantum that domestic remedies are neither suitable nor effective and, therefore, the
requirement to exhaust them is dispensed with as a mere formality.
 
259.          One of the first instances in which the IACHR adopted a decision
in that sense was in case 1684, analyzed by the Inter-American commission in
1971, which alleged the systematic use of torture in investigations carried out by
the government of Brazil. The petition contained mentions of different individuals
who were reportedly victims of the violations and, in turn, described a situation of
mass violations in connection, for example, with 12,000 arbitrarily arrested
political prisoners.  On that occasion, the Commission resolved, in first place, that
it was not necessary for this "general" human rights case to be disaggregated into
several individual cases.  In second place, the question of prior pronouncement
being put to a vote, the Commission decided to absolve it by considering Case
1684 to be a "general case" of violations of human rights, thus exempting the
Commission from requiring compliance with Article 9 (bis).d of its Statute, on
exhaustion of internal remedies, in carrying out a full examination of the matter
Second.[187]  
 
260.          Although the aforementioned case was decided before the
Convention came into force, the Commission considers applicable the principal
according to which it is not incumbent on the petitioner to exhaust domestic
remedies in cases in which the existence of a generalized practice is alleged.  The
mechanisms established for examining isolated instances of alleged violations of
the rights set forth in the convention are not appropriate for responding effectively
to cases where it is claimed that the alleged violations occur as part of a
generalised practice.
 
 261.          However, the Commission adds that in order to invoke this
exception it is necessary to demonstrate prima facie the existence of the alleged
practice. On this point, the Commission concurs with the position of the former
European Commission of Human Rights, according to which it is not sufficient
that the existence of supposed legislative measures or administrative practices be
simply alleged; it is also necessary, in order to seek an exception to the rule of
exhaustion of domestic remedies under such an argument, that the existence of the
purported legislative measures and administrative practices be demonstrated with
substantive proof.[188]  Otherwise, it would be sufficient for any petition or
interstate communication to allege the existence of a generalized practice of human
rights violations in order to circumvent the requirement to exhaust domestic
remedies contained in the Convention.
 
262.          Therefore, the question as to whether or not the exception to the
rule of exhaustion of domestic remedies is applicable due to the absence of a
suitable and effective remedy is closely connected with the merits of the matter,
that is, with the question of whether or not it is determined that a generalized
practice of discrimination exists in Costa Rica to the point where the remedies
provided by domestic law are futile.
 
263.          The Inter-American Commission must exercise the utmost care in
scrutinizing allegations that a systematic practice of human rights violations exists
in an OAS member state because, if true, the allegations would mean that the
individuals who are victims of said pattern of violations have very few or no means
at the domestic level to protect themselves from said violations
 
264.          At the same time, the Commission cannot ignore the particular
gravity of accusing a state party to the Convention of having carried out or
tolerated on its soil a systematic practice of discrimination. Accordingly, the
Commission’s evaluation is compelled to take this fact into account and
conclusively demonstrate the truth of the allegations.
 
265.          These are the exceptional circumstances that led to the
Commission to open the case but defer its treatment of admissibility until the
debate on the merits, giving both parties the opportunity to present arguments and
evidence on the merits of the case, in order to determine if the existence was
confirmed prima facie of a generalized practice of discrimination in Costa Rica
toward the Nicaraguan migrant population, which would make the exception to the
rule of exhaustion of domestic remedies applicable.
 
 Considerations of the Commission on elements that must coincide in
order to corroborate the existence of a generalized practice of
discrimination in Costa Rica to the detriment of the Nicaraguan
migrant population
 
266.          It falls to the Inter-American Commission to decide, based on the
evidence presented during the stages on admissibility and merits in the framework
of this interstate communication, if it has been shown sufficient proof to determine
prima facie the existence of a regular pattern of discriminatory acts carried out as
part of a state policy or with the tolerance of the State of Costa Rica, to the
detriment of the Nicaraguan migrants in its territory.
 
267.          That is, to determine the admissibility of this communication, the
Commission must analyze if the acts alleged form part of systematic practice of
discrimination toward the Nicaraguan migrant population in Costa Rica and if the
Costa Rican State has adopted concrete measures connected with this said practice
or if it has tolerated the existence of said practice.  The Commission accepts the
opinion of the European Court on this point, according to which “a practice
incompatible with the Convention consists of an accumulation of identical or
analogous breaches which are sufficiently numerous and inter-connected to amount
not merely to isolated incidents or exceptions but to a pattern or system; a practice
does not of itself constitute a violation separate from such breaches.”[189] 
 
268.          From the foregoing it may be deduced that the Commission must
determine, first, if the acts alleged could constitute acts of discrimination. To that
end, the Commission will take into account what the Inter-American Court has
held with respect to the fact that Nowadays, “no legal act that is in conflict with
this fundamental principle is acceptable, and discriminatory treatment of any
person, owing to gender, race, color, language, religion or belief, political or other
opinion, national, ethnic or social origin, nationality, age, economic situation,
property, civil status, birth or any other status is unacceptable.”[190]
 
269.          The Commission will also bear in mind that not all difference in
treatment can be considered discriminatory. As the Court has found, [191] no
discrimination exists if the difference in treatment has a legitimate purpose and if it
does not lead to situations which are contrary to justice, to reason or to the nature
of things. It follows that there would be no discrimination in differences in
treatment of individuals by a state when the classifications selected are based on
substantial factual differences and there exists a reasonable relationship of
proportionality between these differences and the aims of the legal rule under
review. These aims may not be unjust or unreasonable, that is, they may not be
arbitrary, capricious, despotic or in conflict with the essential oneness and dignity
of humankind.
 
270.          At the same time, the Commission must determine if the acts
alleged in the communication to be discriminatory constitute isolated or
circumstantial acts, or if they are the consequence of a generalized practice. In this
connection, the Inter-American court has noted that "the confirmation of a single
case of violation of human rights by the authorities of a State is not in itself
sufficient ground to presume or infer the existence in that State of widespread,
large-scale practices to the detriment of the rights of other citizens.”[192]
 
271.          To corroborate the existence of said practice, the Commission
must take several elements into account. The first element relates to quantity, that
is, the alleged discriminatory acts must be perpetrated in such a quantity as to
create a situation in which the human rights of a large sector of the population are
being continuously violated or under constant threat. A second element relates to
time, that is, the discriminatory acts alleged must occur regularly over a
considerable period of time as part of a prolonged or habitual situation. A third
element has to do with the existence of a pattern, which implies that that the
alleged acts of discrimination do not occur as an isolated matter or as a matter of
chance or coincidence, instead they shall obey to certain common characteristics
that connect them among each other and allow to conceptualize them as elements
of the same situation. Lastly, there must be an element of official tolerance in the
sense that the State has been remiss, evasive or negligent in respect to their
obligations regarding the discriminatory acts alleged. 
 
272.           The Commission, therefore, proceeds to examine if the acts
charged by the State of Nicaragua can lead the IACHR co conclude the
existence prima facie of a pattern of discrimination to the detriment of the
Nicaraguan migrant population in Costa Rica. 
 
Analysis to determine the existence of a sufficiently generalized practice
of discrimination to render the exhaustion of remedies under domestic
law futile
 
273.          The Nicaraguan State has claimed that the case of Mr. Leopoldo
Natividad Canda Mairena exemplifies the climate of xenophobia that exists and is
accepted in Costa Rica.  With regard to that case, based on information provided
by the parties and the evidence in the record that was neither contested nor denied,
the Commission takes the following facts as attested: On November 10, 2005, Mr.
Leopoldo Natividad Canda Mairena, a 26-year-old Nicaraguan national, was
attacked by two Rottweiler dogs at the workshop owned by Mr. Fernando Zúñiga
Mora, located at the entrance to the cemetery in La Lima, Cartago, Costa Rica. The
incident was witnessed by the owner of the workshop and the dogs; the security
guard, Luis Hernández; the head of the security company, Hugo Ceciliano
Rodríguez; armed policemen, firefighters, and passersby. Thanks to the
intervention of the firefighters and volunteers in the vicinity, Mr. Canda Mairena
was taken to Max Peralta Hospital, where, later the same day, November 10, 2005,
he died from his wounds.[193] The agonizing ordeal lasted approximately two hours.
According to the coroner's report presented as evidence by the State of Nicaragua,
the findings of autopsy No. A: 2005-2370 carried out on November 10, 2005,
attributed Mr. Natividad Canda’s death to the “multiple dog bites on both arms,
modified by surgery, with lacerations of the muscles, arteries and veins leading to
hemorrhagic shock.” [194] The aforementioned coroner's report adds: “manner of
death: accidental from a forensic point of view.” From its reading of the coroner's
report, the Commission further concludes that Mr. Canda Mairena died after
receiving medical attention at Max Peralta Hospital.
 
274.          According to several press reports, the security guard at the
workshop protected by the dogs was well-known to Mr. Canda Mairena, since he is
the father-in-law of his brother, Regino Canda Mairena. Based on the foregoing,
the Commission can assume that at the time of the incident Mr. Natividad Canda
Mairena’s nationality was known; however, it cannot assume that his nationality
had any implication in the events that led to his death.
 
275.          As to the actions of the Costa Rican policeman who witnessed
these events, even the prosecutor who is pursuing the case in Costa Rica has
reached the conclusion that the police officials merely watched the incident and
that they failed to shoot the dogs even though at least two of them had the
opportunity to attempt to do so.  However, based on the information in the record,
the Commission cannot assume that the policemen did not shoot owing to the
nationality of the victim and, therefore, there is no evidence of the existence of a
discriminatory attitude due to his condition as a Nicaraguan citizen.
 
276.          According to the facts alleged by the State of Nicaragua and not
contested by the State of Costa Rica, into similar cases in which the victims of the
dogs were Costa Ricans, the reaction of the authorities was different to that in the
Canda case. Thus, in an attack on a Costa Rican child by a Rottweiler dog in
January 2006 the dog was promptly destroyed.  And in another incident at the
workshop owned by Mr. Fernando Zúñiga, at the entrance to the cemetery in Lima,
Cartago, on October 26, 2006, a Costa Rican citizen was also attacked by the same
Rottweiler dogs and the Costa Rican police reportedly saved his life, killing one of
the dogs. This disparate treatment in similar cases could be an indication that might
enable the Commission to determine that the case of Mr. Canda Mairena is an
example of discrimination against Nicaraguans in Costa Rica. However, the
Commission has received no information on the specific circumstances in which
these two similar cases occurred. For example, the Commission has no information
whatever on the policemen’s relation to the victims and the dogs, or whether or not
the policeman were aware of the nationality of the victims. Therefore, the
Commission does not have sufficient evidence that there was discrimination in the
way in which the police authorities acted in the case of Mr. Canda Mairena. For the
IACHR to reach such a conclusion would be pure conjecture on its part.
 
277.           The Commission notes with concern the declarations of a number
of Costa Rican police authorities apprently aimed to diminish the seriousness of
the events based on Mr. Canda Mairena’s irregular status or alleged criminal
record.  For example, the Commission finds from a story published in “Al Día”
newspaper of November 14, 2005, that the Director of the Public Security Forces
of Cartago reportedly declared that “ in 2005 alone Canda was up before the courts
on eight occasions, suspected of auto theft, burglary, robbery, possession and abuse
of drugs, and theft of electric cable. Also, the nica was an illegal immigrant and
had been deported three times this year.”[195] These statements on the part of the
Costa Rican authorities are irresponsible and could have the effect of influencing
public opinion, in order to justify the grave circumstances in which Mr. Canda
Mairena died. However, it cannot be concluded that those declarations alone are
sufficient to establish the international responsibility of the State of Costa Rica. In
this respect, the Court has held that “the general obligation to respect and ensure
human rights binds States, regardless of any circumstance or consideration,
including a person’s migratory status.”[196] The Court has also ruled that “despite
the seriousness of certain actions by inmates and their responsibility for some
felonies, it is not admissible that power can be exerted in such a limitless way or
that the State can use any proceedings to reach its objectives, without respecting
law and morality.”[197] The Commission hopes that the Costa Rican State will take
the appropriate educational steps and administrative measures to punish such
declarations and prevent their recurrence in the future.
 
278.          As regards the steps taken by the Costa Rican judicial authorities
to investigate the facts and punish those responsible for the death of Mr. Canda
Mairena, both parties have supplied the Commission with very limited
information. However, the Commission can deduce from the information available
that forward steps have been made in the criminal investigation into the death of
Mr. Natividad Canda Mairena. For example, February 8, 2006, was the date set for
the reconstruction of events,[198] and February 24, 2006, saw the admission of the
criminal complaint brought by Ms. Juana Francisca Mairena, the mother of Mr.
Natividad Canda Mairena.[199]  On November 22, 2006, the Assistant Prosecutor for
Cartago filed an indictment and request for the opening of trial proceedings against
two officers of the public security forces for the crime of “unintentional homicide
by omission” of which Mr. Leopoldo Natividad Canda Mairena was allegedly the
victim. Thus, based on the information available, it is not possible to conclude that
there was disparity in access to justice or negligence on the part of the Costa Rican
judicial authorities because the victim was Nicaraguan. The State of Nicaragua has
not put forward any evidence to show that essential proceedings were neglected,
that the Costa Rican judicial authorities have acted in a biased manner, that
witnesses have been disqualified for their nationality, or that any other
circumstance has been verified to confirm the existence of negligence, bias, or
discriminatory practices on the part of the judicial authorities in connection with
this case.
 
279.          Based on the foregoing, the Commission finds that it lacks
sufficient evidence with which to determine conclusively that the circumstances
surrounding the death of Mr. Leopoldo Natividad Canda Mairena or the treatment
of this incident by the Costa Rican judicial authorities are an example of the
practice of discrimination alleged to exist in Costa Rica.
 
280.          The Nicaraguan State has alleged that the case of Mr. José Ariel
Silva Urbina, in which Messrs. José Antonio Martínez Urbina, Francisco Angulo
García, Rito Antonio Obando and Elder Angulo García were also injured, is
likewise an example of the climate of xenophobia and discrimination that exists in
and is accepted by the State of Costa Rica.
 
281.          As regards this case, based on information provided by the parties
and the evidence in the record that has not been contested or denied, the
Commission takes the following facts as attested: On December 4, 2005, less than
a month after the death of Mr. Leopoldo Natividad Canda Mairena, six Nicaraguan
citizens were in Los Espejos bar in La Guácima, Alajuela, Costa Rica, where 25 to
30 other persons, the majority of them Costa Rican, were also present. At between
midnight and 1 a.m., these six Nicaraguan citizens decided to leave the place
because they were being verbally attacked with xenophobic remarks.  Some of the
persons who were on the premises decided to go out, continue their offensive
remarks, and begin to physically assault the six Nicaraguan citizens by throwing
stones at them.
 
282.          Finally, a man who was identified as Juan Arguedas Calderón by
the witnesses, Alejandro Gutiérrez Cambronero, Rito Antonio Obando Castellón,
José Joaquín Arguedas Chavarría and Francisco Linares García, assaulted the
Nicaraguan citizens José Ariel Silva Urbina, Antonio Martínez Urbina and
Francisco Linares García with a knife, which resulted in the death of the former
and the serious injury of the other two, who had to be rushed to hospital; one of
them to México Hospital in the city of San José and the other to San Rafael
Hospital in the city of Alajuela.
 
283.          As regards the causes of these events, according to a report
by “La Prensa” newspaper of December 6, 2005, "the jokes being told by two
Costa Ricans about the death of a Nicaraguan in the jaws of two Rottweiler dogs
resulted in the murder of José Ariel Silva Urbina”. The newspaper cites the
testimony of José Pablo Mendoza, who was reportedly with Mr.  Silva Urbina on
the night of the incident.  According to said testimony, “the Costa Ricans were
imitating a howling dog howls in allusion to the Nicaraguan Natividad Canda
Mairena […]. That upset (Ariel) and they began to have an argument […]. The
Nicaraguans, five in total, decided to leave the bar, and as they walked away some
30 people hurled abuse at them.”[200]
 
284.          The Commission finds that based on the information available it
is possible to conclude that there was a close link between the Nicaraguan
nationality of the victims in this case and the verbal and physical attacks that
occurred in and outside the bar. The statements of witnesses show that the cause of
the attacks that culminated in the death of Mr. Silva Urbina and the wounding of
other Nicaraguan citizens is tightly associated with their Nicaraguan nationality.
When incidents such as these occur and include threats of violence based on the
nationality of the victims, in particular when those threats are proffered in public
and by a group of persons, it is up to the State to conduct a prompt investigation of
the facts with due diligence, not only of the attack on the life and physical integrity
of the victims but also of the possibility that it was motivated by discrimination.  In
this respect, the Commission is of the opinion that, when it is suspected that
discrimination for reasons of race, nationality or any other motive has induced
violent incidents, State authorities have the additional duty to take all reasonable
steps to unmask any racist motive and to establish whether or not ethnic hatred or
prejudice may have played a role in the events.
 
 285.          The Commission has received very limited information on the
domestic judicial proceedings which were initiated in Costa Rica to identify those
responsible for these acts of violence.  From the documents presented by the State
of Costa Rica, the Commission has been able to deduce that as a result of the
complaint made by Red Cross personnel to the Judicial Police, a criminal
investigation was opened in which Mr. Juan Arguedas Calderón has been charged
with the murder of Mr. José Ariel Silva Urbina and the attempted murder of
Messrs. Antonio Martínez Urbina and Francisco Linares García. However, based
on the testimonies collected by different news media, the Commission finds that
some other witnesses claimed that before being assaulted with a knife they
received a beating from a mob of Costa Ricans and the Nicaraguan citizens were
also injured by stones thrown at them.[201]
 
286.          As to the prosecution of Mr. Juan Antonio Arguedas Calderón for
the crimes of aggravated homicide and two counts of attempted aggravated
homicide to the detriment of Messrs. José Ariel Urbina Silva, Antonio Martínez
Urbina, and Francisco José Linares García, the information in the record shows
that on December 6, 2005, the prosecutor requested the criminal court judge to
order a search of the home of Mr. Juan Arguedas Calderón, in order to seize any
evidence that might be found there.  The criminal court ordered the search and
seizure on December 6, 2006,[202] and it was carried out that same day.[203] The steps
taken since February 2006 have been designed to identify all of the witnesses in
the case on the grounds that locating all of the witnesses and aggrieved parties is
necessary in order to build a solid case.  On February 2, 2007, five eyewitnesses
had been called to take part in an identity parade to make a physical identification
of the accused man, the results of which would enable the prosecution to decide
what type of criminal summons it would seek. The Commission has not received
further updates on the state of this proceeding but the information available shows
that the judicial authorities have been acting with the appropriate diligence in the
case
 
287.          The information in the possession of the Commission with respect
to this incident and its ensuing judicial proceeding is so limited that it is unable to
determine conclusively if the treatment that the Costa Rican State has given to
these events constitutes an example of the practice of discrimination alleged to
exist in Costa Rica.
 
288.          Another case, which, according to the Nicaraguan State,
constitutes an example of the climate of xenophobia and discrimination that exists
in, and is accepted by, the State of Costa Rica is that of Ms. María José González
Quintanilla, a Nicaraguan citizen who was an inmate at Calle Real Prison in
Liberia, where she also worked as a kitchen assistant, and accused the
administrator of the prison of sexual abuse. However, the only evidence that the
State of Nicaragua has presented in connection with this case is a press report, and
it has not provided the Commission with any information that would enable it to
conclude that this alleged sexual abuse was in any way connected with her
vulnerable situation as a result of being a member of the Nicaraguan migrant
population.  The State of Nicaragua has also neglected to supply any information
that might enable the IACHR to conclude that the alleged victim did not have
access to a judicial remedy because of her Nicaraguan nationality.  The dearth of
information received by the Commission on this case makes it impossible to say if
it constitutes an example of a practice of discrimination that allegedly prevails in
Costa Rica.  Once again, the information made available to the Commission is not
enough to presume the existence of a practice of discrimination on the part of the
State of Costa Rica.
 
289.          In similar fashion, the State of Nicaragua drew the attention of the
IACHR to the situation of Mr. Roger López González, who reported to the
Consulate General of Nicaragua that he had been the victim of attacks and death
threats by a Costa Rican citizen, for which reason he felt compelled to return to
Nicaragua after 17 years of legal residence in Costa Rica. However, the State of
Nicaragua merely presented these allegations in a general manner in its brief
without offering any evidence to enable the Commission to weigh the veracity of
the allegations or conclude that the threats received had to do with his condition as
a Nicaraguan migrant in Costa Rica.  Furthermore, the Commission received no
information that might enable it to determine if Mr. López González reported these
threats to the judicial authorities or what the reaction of the Costa Rican authorities
was.
 
290.          The State of Nicaragua has insisted that a situation of impunity
reins in violations committed against Nicaraguans, and by failing to adopt effective
measures to prevent impunity, the State has prompted further discrimination and
encouraged intolerant sectors to continue a campaign of xenophobia. The Inter-
American Court has defined impunity as “the total lack of investigation,
prosecution, capture, trial and conviction of those responsible for violations of the
rights protected by the American Convention,” a situation that the State has the
obligation to combat using all the legal means at its disposal.[204] 
 
291.          With respect to the alleged impunity, to demonstrate that the State
of Costa Rica has violated the rights to a fair trial and judicial protection to the
detriment of the Nicaraguan migrant population, it was incumbent on the State of
Nicaragua to show, for instance, that investigations are not opened ex officio in
cases where a Nicaraguan is the victim; or that when Nicaraguans turn to the
administrative or judicial authorities they run the risk of deportation, expulsion, or
deprivation of liberty.  Alternatively it could have demonstrated that in specific
cases Nicaraguans have been denied the free services of a public defender to act on
their behalf, preventing them from upholding their rights. However, the State of
Nicaragua presented no evidence in that respect and, rather, the record shows that
the State of Costa Rica has investigated and offered free legal advisory services to
victims of Nicaraguan origin.  In that connection, the Commission notes that it has
received only general allegations and the evidence in the record is not sufficient to
conclude that the Costa Rican State is behaving in a remiss, evasive, or negligent
manner with respect to the investigation and punishment of those responsible for
human rights violations to the detriment of Nicaraguan citizens in Costa Rica
 
292.          The Commission observes that the State of Nicaragua has
provided no evidence that tends to demonstrate a practice of violence allegedly
targeting persons of Nicaraguan origin in Costa Rica.  The Commission is also at a
loss to find examples in sufficient number to permit the presumption that such a
practice exists.  Nor has the State of Nicaragua brought to the attention of the
Commission evidence of tolerance or acquiescence by the Costa Rican judicial
authorities. For example, it has not been demonstrated that the criminal cases in
which the victims are Nicaraguans are not being investigated, remain in impunity,
assailants are punished with less severe penalties, or any other circumstances from
which to presume acquiescence or tolerance on the part of the state.
 
293.          The State of Nicaragua has also referred on several occasions to
the attitude of the Costa Rican people to the Nicaraguan migrant population, which
it alleges is discriminatory. States which, like Costa Rica, have a high number of
immigrants under their jurisdiction cannot overlook the fact that those immigrants
are in a vulnerable situation as regards the exercise of their human rights.  This
vulnerability is even greater when a state receives on its soil a large number of
citizens of another state because a negative predisposition towards the immigrant
population often develops in the population of the host State. This negative
predisposition is often accompanied by social stigmatization and, even though
manifestations of xenophobia or discrimination may lie latent in any society, the
migrant population is particularly vulnerable to such manifestations.
 
294.          The Commission has received an abundance of information on the
reactions of the Costa Rican population to the acts alleged in this communication
and, based on that information, the Commission considers that the record duly
accredits that certain sectors of the population in Costa Rica seized on the tragic
circumstances in which Mr. Canda Mairena died to make public jokes and
comments in different media, the contents of which illustrate a disturbing hostility
toward the Nicaraguan migrant population that resides in Costa Rica. In response
to these manifestations, the State of Costa Rica, through a press release issued by
the Ministry of Foreign Affairs and Worship, [205] expressed its profound
disapproval for the contents of said messages.  In light of the foregoing, it is not
possible to deduce that the State of Costa Rica has tolerated these practices.
 
295.          Based on the information in the record, the Commission considers
it demonstrated that there is a prevailing feeling of intolerance and rejection toward
Nicaraguans among certain sectors in Costa Rica. Furthermore, the evidence
presented by the State of Nicaragua also leads to the conclusion of the existence of
a perception of vulnerability among Nicaraguans, who feel themselves to be the
object of discrimination in Costa Rica.  For example, from the interviews
contained in the videos supplied by the Nicaraguan State it is possible to observe
that Nicaraguan residents in Costa Rica attributed the circumstances in which
Messrs. Canda Mairena and Silva Urbina died to their immigrant status. However,
no evidence has been provided from which to conclude that these perceptions have
translated into concrete practices. The Commission notes that any concrete practice
of discrimination is prohibited and that states have the obligation to prevent,
combat, punish, and eliminate discriminatory practices. However, unless they
translate into discriminatory acts or omissions by reason of their causes or effects,
the perceptions of the population do not constitute a practice that could be said to
be grounds for establishing the international responsibility of the state.
 
296.          The State of Nicaragua has also furnished abundant information
from which it can be seen that national, regional, and international agencies,
including the Rapporteurship on Migrant Workers and their Families, [206] have
expressed concern at the situation of the Nicaraguan migrant population in Costa
Rica.  Studies carried out by these agencies provide an account of the difficulties
that migrants face in Costa Rica, particularly if they lack the necessary papers. 
Those studies provide an information overview that the Inter-American
Commission finds alarming. Thus, they report that requirements are set by the
Educational Development Directorates, which prevent the enrollment of children
and adolescents if they or their parents do not have a temporary or permanent
residence permit; that undocumented migrants work in conditions of
overexploitation; and that staff of the Costa Rican Social Security Fund report to
the General Directorate of Immigration persons who go for a medical consultation
and are found not to have a legal residence permit. Taken together, each of these
allegations could be sufficient to establish the existence of a pattern of
discriminatory acts and omissions to the detriment of the Nicaraguan migrant
population.  For that purpose, it is necessary to provide not only general
information on the different circumstances alleged, but also concrete examples in
sufficient number to enable the Commission to take the alleged practice as
attested.  However, the State of Nicaragua has not informed the Commission of
any concrete cases from which to corroborate the conclusions of these studies and
demonstrate the existence of a systematic practice of discrimination in the State of
Costa Rica.
 
297.          Similarly, the State of Nicaragua has mentioned that the Law on
Migration and Nationality violates the human rights of a number of victims but it
has not presented the Commission with any cases in which the Law has been
applied to a specific victim.  The Commission concurs with the analysis of the
State of Nicaragua and various organizations whose comments were added to the
record in the case, that the law on migration and nationality is oriented toward
protecting public security rather than human rights, and grants broad, discretionary
powers to the administrative authorities in Costa Rica.  However, the Commission
notes that the Costa Rican State has acted within its powers in adopting the law in
order to establish mechanisms of control on the entry and departure of
undocumented migrants to its territory and to treat documented migrants
differently from undocumented migrants,[207] always assuming that this different
treatment is reasonable, objective, proportional, and does not violate human rights.
 
298.          Although the Commission decided to admit this general case, in
which the State of Nicaragua names as victims of human rights violations the
Nicaraguan migrant population in a vulnerable situation in Costa Rica, in so doing
it noted that the instant case could not be equated with an abstract case since its
purpose is the protection of the rights and freedoms of the Nicaraguan migrant
population in Costa Rica.  The Commission could present an opinion on the Law
on Migration and Nationality in an abstract manner through a general
recommendation or a study issued in the framework of its principal function to
promote the observance and protection of human rights.  However, in the
framework of a contentious case such as this one, in order for the Commission to
pronounce an opinion on the Law, the State of Nicaragua had to show that said law
has been applied to the detriment of the protected rights and freedoms of the
Nicaraguan migrant population. 
 
 299.          As the Inter-American Court has held, in order for the
promulgation of a law that manifestly violates the obligations assumed by a state
upon ratifying or acceding to the Convention to give rise to the international
responsibility of the state, it is necessary for the law to affect the guaranteed rights
and liberties of specific individuals.[208] In that connection we should recall the
distinction that the Court made in its analysis between self-executing and non-self-
executing laws.  In the case of self-executing laws, the violation of human rights
occurs upon their promulgation. Hence, a norm that deprives a portion of the
population of some of its rights, for example, because of nationality, automatically
injures all the members of that nationality. Non-self-executing laws do not
necessarily affect the rights of specific individuals because they may require
subsequent normative measures, compliance with certain conditions, or
implementation by state authorities. In the instant case, the law that, according to
the State of Nicaragua, violates human rights is not a self-executing law and its
promulgation alone does not empower the Commission to make a determination on
the international responsibility of the State of Costa Rica in the framework of this
interstate communication.
 
300.          The State of Nicaragua has not drawn the attention of the
Commission to any cases in which this law has been applied and, through its
application, violated the rights of the Nicaraguan migrant population in Costa
Rica.  The most specific information that the Commission received in this respect
recounts that, in accordance with this law, the Ministry of Labor recommended that
no work permits for domestic servants be granted for six months in Costa Rica,
which, according to an

official letter from the Director General for Immigration and Nationality, [209] led to
the refusal of a large number of applications presented mostly by Nicaraguans,
which exacerbated the problem of undocumented migrants in the Nicaraguan
community in Costa Rica. In this connection, the Commission notes that according
to the documentation supplied by the State of Nicaragua, the Director General for
Immigration and Nationality requested the amendment of that recommendation
owing to the aforementioned effect.  Therefore, documentary evidence presented
shows the concern of the main Costa Rican immigration authority and its steps to
persuade the labor authority to modify a recommendation.  This is far from being
evidence of a discriminatory government policy.
 
301.          In view of the fact that the State of Nicaragua has not presented
the Commission with information that would allow it to conclude that this law has
been applied to the detriment of the rights of the Nicaraguan migrant population in
Costa Rica, the Commission cannot consider it an example of the generalized
discrimination alleged to exist in Costa Rica.
 
302.          Finally, throughout the procedure of this case, the State of
Nicaragua has asserted that the State of Costa Rica has confessed the existence of
discrimination and xenophobia in its territory. To this respect, the Inter-American
Commission values the reiterated occasions in the course of this proceeding on
which the State of Costa Rica has recognized that there are enormous challenges to
prevent the rise of xenophobia between the two nations, and that those states
should adopt preventive measures to strengthen relations between the two peoples. 
Under no circumstances could the Commission conclude that the State of Costa
Rica bears responsibility on the basis of this recognition, as the State of Nicaragua
has requested, since it is far from being an acceptance of the factual and legal
arguments put forward in the communication.
 
303.          At the same time, the Commission wishes to thank the State of
Costa Rica for its invitation in the framework of this interstate communication for
the IACHR or its Rapporteurship on Migrant Workers and their Families to
conduct an on-site visit to Costa Rica in order to assess the actual situation of
Nicaraguan immigrants in its territory. The situation of the migrant population in
Costa Rica has been a matter of constant attention by the Inter-American
Commission, and its  Rapporteurship noted in the year 2002 that “there is a certain
degree of discrimination against persons of Nicaraguan origin,”[210] but it observed
that the discrimination suffered by migrant workers and their families does not
reflect a State policy, but rather has to do with a negative predisposition with
respect to migrant workers on the part of the population.[211] 
 
304.          The lack of specific evidence presented in the framework of this
interstate communication has prevented the Commission from arriving at the
determination that certain acts have been verified in Costa Rica to allow the
Commission to conclude that there is a generalized practice of discrimination
against Nicaraguans in Costa Rica.
 
305.          Based on the foregoing, the Commission concludes that the State
of Nicaragua has not demonstrated, in the framework of the proceeding on this
communication, the existence of a generalized practice of discrimination in Costa
Rica toward the Nicaraguan migrant population.
 
306.          Having been unable to corroborate prima facie the existence of a
generalized practice of discrimination against the Nicaraguan migrant population
in Costa Rica, it would be inappropriate for the Commission to assume that no
suitable and effective remedies exist to repair the violations alleged in this
interstate communication.  Accordingly, the exception to the rule set forth in
Article 46 of the Convention does not apply.
 
4.         Time period for submission of the communication
 
307.          In accordance with the provisions of Article 46(1)(b) of the
Convention, in order to be admissible, a petition or communication must be lodged
within six months of the date when the complaining party has been notified of a
final decision handed down at the national level. The six months rule ensures legal
certainty and stability once a decision has been made. 
 
308.          In the instant case, inasmuch as the exception to the rule of
exhaustion of domestic remedies is not applicable, which implies that the instant
interstate communication is inadmissible, the Commission abstains, since the
matter is rendered moot, from examining the other admissibility requirements
provided in the Convention.[212]
 
VI.        CONCLUSIONS
 
309.          Based on the foregoing, the claims of the Nicaraguan State with
regard to violation of the rights recognized in Articles 1(1) (Obligation to respect
rights), 8 (Right to a fair trial), 24 (Right to equal protection), and 25 (Right to
judicial protection) of the American Convention on Human Rights, are
inadmissible under Articles 46 of the Convention and 31 of the Rules of Procedure
of the IACHR.
 
310.          The Commission takes this opportunity to condemn all acts of
discrimination or xenophobia against migrant persons of any origin, and recalls
that the international system for protection of human rights was created and
operates on the basic premise that all human beings are equal and, therefore,
precludes all discrimination. The Commission reiterates that it is impermissible to
subject human beings to differences in treatment that are inconsistent with their
unique and identical nature and that states have the duty not to commit
discrimination as well as the obligation to protect individuals against
discrimination, whether this occurs within the public sphere or among private
parties.
 
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
DECIDES:
1.                  To declare the instant petition inadmissible under Article 46(a) of the
Convention;
 
2.                  To notify the parties of this decision; and
 
3.                  To publish the instant report in its Annual Report.
 
Done and signed in the city of Washington, D.C., on the 8st day of the month of March,
2007.  (Signed): Florentín Meléndez, President; Paolo G. Carozza, First Vice-President; Víctor
E. Abramovich, Second Vice-President; Evelio Fernández Arévalos, Clare K. Roberts, Paulo
Sérgio Pinheiro, and Freddy Gutiérrez Trejo, Commissioners.

5.)

INTERNATIONAL COURT OF JUSTICE

     
  GABCIKOVO-NAGUMAROS PROJECT  
     
HUNGARY  
v. 
SLOVAKIA
     
     
  JUDGEMENT  
     
  Return Home    
     
     
  BEFORE: President: Schwebel;  
Vice-President: Weeramantry;
Judges: Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer,
Koroma, Vereshchetin, Parra-Aranguren, Kooijmans, Rezek;
Judges ad hoc: Skubiszewski
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1997.09.25_gabchkovo.htm
   
Citation: Gabcikovo-Nagumaros Project (Hung. v. Slovk.), 1997 I.C.J. 7 (Sept. 25)
   
Represented By: Hungary: H. E. Mr. Gyorgy Szenasi, Ambassador, Head of the
International Law Department, Ministry of Foreign Affairs, as Agent and
Counsel;
H. E. Mr. Denes Tomaj, Ambassador of the Republic of Hungary to the
Netherlands, as Co-Agent; Mr. James Crawford, Whewell Professor of
International Law, University of Cambridge; Mr. Pierre-Marie Dupuy,
Professor at the University Pantheon-Assas (Paris II) and Director of the
Institut des hautes etudes internationales of Paris; Mr. Alexandre Kiss,
Director of Research, Centre national de la recherche scientifique (ret.);
Mr. Laszlo Valki, Professor of International Law, Eotvos Lorand
University, Budapest; Mr. Boldizsar Nagy, Associate Professor of
International Law, Eotvos Lorand University, Budapest; Mr. Philippe
Sands, Reader in International Law, University of London, School of
Oriental and African Studies, and Global Professor of Law, New York
University; Ms Katherine Gorove, consulting Attorney, as Counsel and
Advocates;
Dr. Howard Wheater, Professor of Hydrology, Imperial College, London;
Dr. Gabor Vida, Professor of Biology, Eotvos Lorand University,
Budapest, Member of the Hungarian Academy of Sciences; Dr. Roland
Carbiener, Professor emeritus of the University of Strasbourg;
Dr. Klaus Kern, consulting Engineer, Karlsruhe, as Advocates; Mr.
Edward Helgeson; Mr. Stuart Oldham; Mr. Peter Molnar, as Advisers;
Dr. Gyorgy Kovacs; Mr. Timothy Walsh; Mr. Zoltan Kovacs, as Technical
Advisers; Dr. Attila Nyikos, as Assistant; Mr. Axel Gosseries, LL.M., as
Translator; Ms Eva Kocsis; Ms Katinka Tompa, as Secretaries;

Slovakia: H. E. Dr. Peter Tomka, Ambassador, Legal Adviser of the

Ministry of Foreign Affairs, as Agent; Dr. Vaclav Mikulka, Member of the
International Law Commission, as Co-Agent, Counsel and Advocate; Mr.
Derek W. Bowett, C.B.E., Q.C., F.B.A., Whewell Professor emeritus of
International Law at the University of Cambridge, Former Member of the
International Law Commission, as Counsel; Mr. Stephen C. McCaffrey,
Professor of International Law at the University of the Pacific, McGeorge
School of Law, Sacramento, United States of America, Former Member of
the International Law Commission; Mr. Alain Pellet, Professor at the
University of Paris X-Nanterre and at the Institute of Political Studies,
Paris, Member of the International Law Commission; Mr. Walter D.
Sohier, Member of the Bar of the State of New York and of the District of
Columbia;
Sir Arthur Watts, K.C.M.G., Q.C., Barrister, Member of the Bar of
England and Wales; Mr. Samuel S. Wordsworth, avocat a la Cour d'appel
de Paris, Solicitor of the Supreme Court of England and Wales, Frere
Cholmeley, Paris, as Counsel and Advocates; Mr. Igor Mucha, Professor
of Hydrogeology and Former Head of the Groundwater Department at the
Faculty of Natural Sciences of Comenius University in Bratislava; Mr.
Karra Venkateswara Rao, Director of Water Resources Engineering,
Department of Civil Engineering, City University, London; Mr. Jens
Christian Refsgaard, Head of Research and Development, Danish
Hydraulic Institute, as Counsel and Experts; Dr. Cecilia Kandraeova,
Director of Department, Ministry of Foreign Affairs; Mr. Ludik Krajhanzl,
Attorney at Law, Vyroubal Krajhanzl Skacel and Partners, Prague; Mr.
Miroslav Liska, Head of the Division for Public Relations and Expertise,
Water Resources Development State Enterprise, Bratislava, Dr. Peter
 Vrsansky, Minister-Counsellor, Charge d'affaires a.i., of the Embassy of
the Slovak Republic, The Hague, as Counsellors; Miss Anouche
Beaudouin, allocataire de recherche at the University of Paris X-Nanterre;
Ms Cheryl Dunn, Frere Cholmeley, Paris; Ms Nikoleta Glindova, attachee,
Ministry of Foreign Affairs; Mr. Drahoslav Stefanek, attache, Ministry of
Foreign Affairs, as Legal Assistants.
     
   
     
  [p7]

THE COURT

composed as above,

after deliberation,

delivers the following Judgment:

1. By a letter dated 2 July 1993, filed in the Registry of the Court on the same day, the
Ambassador of the Republic of Hungary (hereinafter called "Hungary") to the Netherlands
and the Charge d'affaires ad interim of the Slovak Republic (hereinafter called "Slovakia") to
the Netherlands jointly notified to the Court a Special Agreement in English that had been
signed at Brussels on 7 April 1993 and had entered into force on 28 June 1993, on the date of
the exchange of instruments of ratification.

2. The text of the Special Agreement reads as follows: [p11]

"The Republic of Hungary and the Slovak Republic,

Considering that differences have arisen between the Czech and Slovak Federal Republic and
the Republic of Hungary regarding the implementation and the termination of the Treaty on
the Construction and Operation of the Gabcikovo-Nagymaros Barrage System signed in
Budapest on 16 September 1977 and related instruments (hereinafter referred to as "the
Treaty"), and on the construction and operation of the "provisional solution";

Bearing in mind that the Slovak Republic is one of the two successor States of the Czech and
Slovak Federal Republic and the sole successor State in respect of rights and obligations
relating to the Gabcikovo-Nagymaros Project;

Recognizing that the Parties concerned have been unable to settle these differences by
negotiations;

Having in mind that both the Czechoslgv4edvbovak and Hungarian delegations expressed
their commitment to submit the differences connected with the Gabcikovo-Nagymaros Project
in all its aspects to binding international arbitration or to the International Court of Justice;

Desiring that these differences should be settled by the International Court of Justice;

Recalling their commitment to apply, pending the Judgment of the International Court of
Justice, such a temporary water management regime of the Danube as shall be agreed between
the Parties;

Desiring further to define the issues to be submitted to the International Court of Justice,

Have agreed as follows:

Article 1

The Parties submit the questions contained in Article 2 to the International Court of Justice
pursuant to Article 40, paragraph 1, of the Statute of the Court.
Article 2

(1) The Court is requested to decide on the basis of the Treaty and rules and principles of
general 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 Gabcikovo 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,
described in the Report of the Working Group of Independent Experts of the Commission of
the European Communities, the Republic of Hungary and the Czech and Slovak Federal
Republic dated 23 November 1992 (damming up of the Danube at river kilometre 1851.7 on
Czechoslovak territory and resulting consequences on water and navigation course); [p12]

(c) what are the legal effects of the notification, on 19 May 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.

Article 3

(1) All questions of procedure and evidence shall be regulated in accordance with the
provisions of the Statute and the Rules of Court.
(2) However, the Parties request the Court to order that the written proceedings should consist
of:

(a) a Memorial presented by each of the Parties not later than ten months after the date of
notification of this Special Agreement to the Registrar of the International Court of Justice;

(b) a Counter-Memorial presented by each of the Parties not later than seven months after the
date on which each has received the certified copy of the Memorial of the other Party;

(c) a Reply presented by each of the Parties within such time-limits as the Court may order.

(d) The Court may request additional written pleadings by the Parties if it so determines.

(3) The above-mentioned parts of the written proceedings and their annexes presented to the
Registrar will not be transmitted to the other Party until the Registrar has received the
corresponding part of the proceedings from the said Party.

Article 4

(1) The Parties agree that, pending the final Judgment of the Court, they will establish and
implement a temporary water management regime for the Danube.

(2) They further agree that, in the period before such a regime is established or implemented,
if either Party believes its rights are endangered by the conduct of the other, it may request
immediate consultation and reference, if necessary, to experts, including the Commission of
the European Communities, with a view to protecting those rights; and that protection shall
not be sought through a request to the Court under Article 41 of the Statute.

(3) This commitment is accepted by both Parties as fundamental to the conclusion and
continuing validity of the Special Agreement.

Article 5

(1) The Parties shall accept the Judgment of the Court as final and binding upon them and
shall execute it in its entirety and in good faith.

(2) Immediately after the transmission of the Judgment the Parties shall enter into negotiations
on the modalities for its execution.

(3) If they are unable to reach agreement within six months, either Party may request the
Court to render an additional Judgment to determine the modalities for executing its
Judgment.

Article 6

(1) The present Special Agreement shall be subject to ratification. [p13]

(2) The instruments of ratification shall be exchanged as soon as possible in Brussels.

(3) The present Special Agreement shall enter into force on the date of exchange of
instruments of ratification. Thereafter it will be notified jointly to the Registrar of the Court.

In witness whereof the undersigned being duly authorized thereto, have signed the present
Special Agreement and have affixed thereto their seals."

3. Pursuant to Article 40, paragraph 3, of the Statute and Article 42 of the Rules of Court,
copies of the notification and of the Special Agreement were transmitted by the Registrar to
the Secretary-General of the United Nations, Members of the United Nations and other States
entitled to appear before the Court.

4. Since the Court included upon the Bench no judge of Slovak nationality, Slovakia
exercised its right under Article 31, paragraph 2, of the Statute to choose a judge ad hoc to sit
in the case: it chose Mr. Krzysztof Jan Skubiszewski.

5. By an Order dated 14 July 1993, the Court fixed 2 May 1994 as the time-limit for the filing
by each of the Parties of a Memorial and 5 December 1994 for the filing by each of the Parties
of a Counter-Memorial, having regard to the provisions of Article 3, paragraph 2 (a) and (b),
of the Special Agreement. Those pleadings were duly filed within the prescribed time-limits.

6. By an Order dated 20 December 1994, the President of the Court, having heard the Agents
of the Parties, fixed 20 June 1995 as the time-limit for the filing of the Replies, having regard
to the provisions of Article 3, paragraph 2 (c), of the Special Agreement. The Replies were
duly filed within the time-limit thus prescribed and, as the Court had not asked for the
submission of additional pleadings, the case was then ready for hearing.

7. By letters dated 27 January 1997, the Agent of Slovakia, referring to the provisions of
Article 56, paragraph 1, of the Rules of Court, expressed his Government's wish to produce
two new documents; by a letter dated 10 February 1997, the Agent of Hungary declared that
his Government objected to their production. On 26 February 1997, after having duly
ascertained the views of the two Parties, the Court decided, in accordance with Article 56,
paragraph 2, of the Rules of Court, to authorize the production of those documents under
certain conditions of which the Parties were advised. Within the time-limit fixed by the Court
to that end, Hungary submitted comments on one of those documents under paragraph 3 of
that same Article. The Court authorized Slovakia to comment in turn upon those observations,
as it had expressed a wish to do so; its comments were received within the time-limit
prescribed for that purpose.

8. Moreover, each of the Parties asked to be allowed to show a video cassette in the course of
the oral proceedings. The Court agreed to those requests, provided that the cassettes in
question were exchanged in advance between the Parties, through the intermediary of the
Registry. That exchange was effected accordingly.
9. In accordance with Article 53, paragraph 2, of the Rules of Court, the Court decided, after
having ascertained the views of the Parties, that copies of the pleadings and documents
annexed would be made available to the public as from the opening of the oral proceedings.

10. By a letter dated 16 June 1995, the Agent of Slovakia invited the Court [p14] to visit the
locality to which the case relates and there to exercise its functions with regard to the
obtaining of evidence, in accordance with Article 66 of the Rules of Court. For his part, the
Agent of Hungary indicated, by a letter dated 28 June 1995, that, if the Court should decide
that a visit of that kind would be useful, his Government would be pleased to co-operate in
organizing it. By a letter dated 14 November 1995, the Agents of the Parties jointly notified to
the Court the text of a Protocol of Agreement, concluded in Budapest and New York the same
day, with a view to proposing to the Court the arrangements that might be made for such a
visit in situ; and, by a letter dated 3 February 1997, they jointly notified to it the text of
Agreed Minutes drawn up in Budapest and New York the same day, which supplemented the
Protocol of Agreement of 14 November 1995. By an Order dated 5 February 1997, the Court
decided to accept the invitation to exercise its functions with regard to the obtaining of
evidence at a place to which the case relates and, to that end, to adopt the arrangements
proposed by the Parties. The Court visited the area from 1 to 4 April 1997; it visited a number
of locations along the Danube and took note of the technical explanations given by the
representatives who had been designated for the purpose by the Parties.

11. The Court held a first round of ten public hearings from 3 to 7 March and from 24 to 27
March 1997, and a second round of four public hearings on 10, 11, 14 and 15 April 1997,
after having made the visit in situ referred to in the previous paragraph. During those
hearings, the Court heard the oral arguments and replies of:

For Hungary: H. E. Mr. Szenasi,

Professor Valki,
Professor Kiss,
Professor Vida,
Professor Carbiener,
Professor Crawford,
Professor Nagy,
Dr. Kern,
Professor Wheater,
Ms Gorove,
Professor Dupuy,
Professor Sands.

For Slovakia: H. E. Dr. Tomka,

Dr. Mikulka,
Mr. Wordsworth,
Professor McCaffrey,
Professor Mucha,
Professor Pellet,
Mr. Refsgaard,
Sir Arthur Watts.

12. The Parties replied orally and in writing to various questions put by Members of the
Court. Referring to the provisions of Article 72 of the Rules of Court, each of the Parties
submitted to the Court its comments upon the replies given by the other Party to some of
those questions.

*[p15]

13. In the course of the written proceedings, the following submissions were presented by the
Parties:

On behalf of Hungary,

in the Memorial, the Counter-Memorial and the Reply (mutatis mutandis identical texts):

"On the basis of the evidence and legal argument presented in the Memorial, Counter-
Memorial and this Reply, the Republic of Hungary

Requests the Court to adjudge and declare

First, that the Republic of Hungary was entitled to suspend and subsequently abandon the
works on the Nagymaros Project and on the part of the Gabcikovo Project for which the
Treaty attributed responsibility to the Republic of Hungary;

Second, that the Czech and Slovak Federal Republic was not entitled to proceed to the
'provisional solution' (damming up of the Danube at river kilometres 1,851.7 on Czechoslovak
territory and resulting consequences on water and navigation course);

Third, that by its Declaration of 19 May 1992, Hungary validly terminated the Treaty on the
Construction and Operation of the Gabcikovo-Nagymaros Barrage System of 16 September
1977;

Requests the Court to adjudge and declare further

that the legal consequences of these findings and of the evidence and the arguments presented
to the Court are as follows:

(1) that the Treaty of 16 September 1977 has never been in force between the Republic of
Hungary and the Slovak Republic;

(2) that the Slovak Republic bears responsibility to the Republic of Hungary for maintaining
in operation the 'provisional solution' referred to above;

(3) that the Slovak Republic is internationally responsible for the damage and loss suffered by
the Republic of Hungary and by its nationals as a result of the 'provisional solution';

(4) that the Slovak Republic is under an obligation to make reparation in respect of such
damage and loss, the amount of such reparation, if it cannot be agreed by the Parties within
six months of the date of the Judgment of the Court, to be determined by the Court;

(5) that the Slovak Republic is under the following obligations:

(a) to return the waters of the Danube to their course along the international frontier between
the Republic of Hungary and the Slovak Republic, that is to say the main navigable channel as
defined by applicable treaties;

(b) to restore the Danube to the situation it was in prior to the putting into effect of the
provisional solution; and

(c) to provide appropriate guarantees against the repetition of the damage and loss suffered by
the Republic of Hungary and by its nationals." [p16]

On behalf of Slovakia:

in the Memorial, the Counter-Memorial and the Reply (mutatis mutandis identical texts):

"On the basis of the evidence and legal arguments presented in the Slovak Memorial,
Counter-Memorial and in this Reply, and reserving the right to supplement or amend its
claims in the light of further written pleadings, the Slovak Republic

Requests the Court to adjudge and declare:

1. That the Treaty between Czechoslovakia and Hungary of 16 September 1977 concerning
the construction and operation of the Gabcikovo/Nagymaros System of Locks, and related
instruments, and to which the Slovak Republic is the acknowledged successor, is a treaty in
force and has been so from the date of its conclusion; and that the notification of termination
by the Republic of Hungary on 19 May 1992 was without legal effect.

2. That the Republic of Hungary was not entitled to suspend and subsequently abandon the
works on the Nagymaros Project and on that part of the Gabcikovo Project for which the 1977
Treaty attributed responsibility to the Republic of Hungary.

3. That the act of proceeding with and putting into operation Variant C, the 'provisional
solution', was lawful.

4. That the Republic of Hungary must therefore cease forthwith all conduct which impedes
the full and bona fide implementation of the 1977 Treaty and must take all necessary steps to
fulfil its own obligations under the Treaty without further delay in order to restore compliance
with the Treaty.
5. That, in consequence of its breaches of the 1977 Treaty, the Republic of Hungary is liable
to pay, and the Slovak Republic is entitled to receive, full compensation for the loss and
damage caused to the Slovak Republic by those breaches, plus interest and loss of profits, in
the amounts to be determined by the Court in a subsequent phase of the proceedings in this
case."

14. In the oral proceedings, the following submissions were presented by the Parties

On behalf of Hungary,

at the hearing of 11 April 1997:

The submissions read at the hearing were mutatis mutandis identical to those presented by
Hungary during the written proceedings.

On behalf of Slovakia:

at the hearing of 15 April 1997:

"On the basis of the evidence and legal arguments presented in its written and oral pleadings,
the Slovak Republic,

Requests the Court to adjudge and declare:

1. That the Treaty, as defined in the first paragraph of the Preamble to the Compromis
between the Parties, dated 7 April 1993, concerning the construction and operation of the
Gabcikovo/Nagymaros System of Locks and related instruments, concluded between Hungary
and [p17] Czechoslovakia and with regard to which the Slovak Republic is the successor
State, has never ceased to be in force and so remains, and that the notification of 19 May 1992
of purported termination of the Treaty by the Republic of Hungary was without legal effect;

2. That the Republic of Hungary was not entitled to suspend and subsequently abandon the
works on the Nagymaros Project and on that part of the Gabcikovo Project for which the 1977
Treaty attributes responsibility to the Republic of Hungary;

3. That the Czech and Slovak Federal Republic was entitled, in November 1991, to proceed
with the 'provisional solution' and to put this system into operation from October 1992; and
that the Slovak Republic was, and remains, entitled to continue the operation of this system;

4. That the Republic of Hungary shall therefore cease forthwith all conduct which impedes the
bona fide implementation of the 1977 Treaty and shall take all necessary steps to fulfil its own
obligations under the Treaty without further delay in order to restore compliance with the
Treaty, subject to any amendments which may be agreed between the Parties;

5. That the Republic of Hungary shall give appropriate guarantees that it will not impede the
performance of the Treaty, and the continued operation of the system;

6. That, in consequence of its breaches of the 1977 Treaty, the Republic of Hungary shall, in
addition to immediately resuming performance of its Treaty obligations, pay to the Slovak
Republic full compensation for the loss and damage, including loss of profits, caused by those
breaches together with interest thereon;

7. That the Parties shall immediately begin negotiations with a view, in particular, to adopting
a new timetable and appropriate measures for the implementation of the Treaty by both
Parties, and to fixing the amount of compensation due by the Republic of Hungary to the
Slovak Republic; and that, if the Parties are unable to reach an agreement within six months,
either one of them may request the Court to render an additional Judgment to determine the
modalities for executing its Judgment."

***

15. The present case arose out of the signature, on 16 September 1977, by the Hungarian
People's Republic and the Czechoslovak People's Republic, of a treaty "concerning the
construction and operation of the Gabcikovo-Nagymaros System of Locks" (hereinafter called
the "1977 Treaty"). The names of the two contracting States have varied over the years;
hereinafter they will be referred to as Hungary and Czechoslovakia. The 1977 Treaty entered
into force on 30 June 1978.

It provides for the construction and operation of a System of Locks by the parties as a "joint
investment". According to its Preamble, the barrage system was designed to attain

"the broad utilization of the natural resources of the Bratislava-Budapest section of the
Danube river for the development of water resources, energy, transport, agriculture and other
sectors of the national economy of the Contracting Parties".

The joint investment was thus essentially aimed at the production of hydroelectricity, the
improvement of navigation on the relevant section of the Danube and the protection of the
areas along the banks against flooding. At the same time, by the terms of the Treaty, the
contracting parties undertook to ensure that the quality of water in the Danube was not
impaired as a result of the Project, and that compliance with the obligations for the protection
of nature arising in connection with the construction and operation of the System of Locks
would be observed.

16. The Danube is the second longest river in Europe, flowing along or across the borders of
nine countries in its 2,860-kilometre course from the Black Forest eastwards to the Black Sea.
For 142 kilometres, it forms the boundary between Slovakia and Hungary. The sector with
which this case is concerned is a stretch of approximately 200 kilometres, between Bratislava
in Slovakia and Budapest in Hungary. Below Bratislava, the river gradient decreases
markedly, creating an alluvial plain of gravel and sand sediment. This plain is delimited to the
north-east, in Slovak territory, by the Maly Danube and to the south-west, in Hungarian
territory, by the Mosoni Danube. The boundary between the two States is constituted, in the
major part of that region, by the main channel of the river. The area lying between the Maly
Danube and that channel, in Slovak territory, constitutes the itny Ostrov; the area between the
main channel and the Mosoni Danube, in Hungarian territory, constitutes the Szigetkoz.
Cunovo and, further downstream, Gabcikovo, are situated in this sector of the river on Slovak
territory, Cunovo on the right bank and Gabcikovo on the left. Further downstream, after the
confluence of the various branches, the river enters Hungarian territory and the topography
becomes hillier. Nagymaros lies in a narrow valley at a bend in the Danube just before it turns
south, enclosing the large river island of Szentendre before reaching Budapest (see sketch-
map No. 1).

17. The Danube has always played a vital part in the commercial and economic development
of its riparian States, and has underlined and reinforced their interdependence, making
international co-operation essential. Improvements to the navigation channel have enabled the
Danube, now linked by canal to the Main and thence to the Rhine, to become an important
navigational artery connecting the North Sea to the Black Sea. In the stretch of river to which
the case relates, flood protection measures have been constructed over the centuries, farming
and forestry practised, and, more recently, there has been an increase in population and
industrial activity in the area. The cumulative effects on the river and on the environment of
various human activities over the years have not all been favourable, particularly for the water
regime.

[p19]

Sketch-Map No. 1

[p20]

Only by international co-operation could action be taken to alleviate these problems. Water
management projects along the Danube have frequently sought to combine navigational
improvements and flood protection with the production of electricity through hydroelectric
power plants. The potential of the Danube for the production of hydroelectric power has been
extensively exploited by some riparian States. The history of attempts to harness the potential
of the particular stretch of the river at issue in these proceedings extends over a 25-year period
culminating in the signature of the 1977 Treaty.

18. Article 1, paragraph 1, of the 1977 Treaty describes the principal works to be constructed
in pursuance of the Project. It provided for the building of two series of locks, one at
Gabcikovo (in Czechoslovak territory) and the other at Nagymaros (in Hungarian territory), to
constitute "a single and indivisible operational system of works" (see sketch-map No. 2 - 85
kb). The Court will subsequently have occasion to revert in more detail to those works, which
were to comprise, inter alia, a reservoir upstream of Dunakiliti, in Hungarian and
Czechoslovak territory; a dam at Dunakiliti, in Hungarian territory; a bypass canal, in
Czechoslovak territory, on which was to be constructed the Gabcikovo System of Locks
(together with a hydroelectric power plant with an installed capacity of 720 megawatts
(MW)); the deepening of the bed of the Danube downstream of the place at which the bypass
canal was to rejoin the old bed of the river; a reinforcement of flood-control works along the
Danube upstream of Nagymaros; the Nagymaros System of Locks, in Hungarian territory
(with a hydroelectric power plant of a capacity of 158 MW); and the deepening of the bed of
the Danube downstream.

Article 1, paragraph 4, of the Treaty further provided that the technical specifications
concerning the system would be included in the "Joint Contractual Plan" which was to be
drawn up in accordance with the Agreement signed by the two Governments for this purpose
on 6 May 1976; Article 4, paragraph 1, for its part, specified that "the joint investment
[would] be carried out in conformity with the joint contractual plan".

According to Article 3, paragraph 1,

"Operations connected with the realization of the joint investment and with the performance
of tasks relating to the operation of the System of Locks shall be directed and supervised by
the Governments of the Contracting Parties through . . . ( . . . 'government delegates')."

Those delegates had, inter alia, "to ensure that construction of the System of Locks is . . .
carried out in accordance with the approved joint contractual plan and the Project work
schedule". When the works were brought into operation, they were moreover "To establish
the operating

[p21]

Sketch-Map No. 2

[p22] and operational procedures of the System of Locks and ensure compliance therewith."

Article 4, paragraph 4, stipulated that:

"Operations relating to the joint investment [should] be organized by the Contracting Parties
in such a way that the power generation plants [would] be put into service during the period
1986-1990."

Article 5 provided that the cost of the joint investment would be borne by the contracting
parties in equal measure. It specified the work to be carried out by each one of them. Article 8
further stipulated that the Dunakiliti dam, the bypass canal and the two series of locks at
Gabcikovo and Nagymaros would be "jointly owned" by the contracting parties "in equal
measure". Ownership of the other works was to be vested in the State on whose territory they
were constructed.

The parties were likewise to participate in equal measure in the use of the system put in place,
and more particularly in the use of the base-load and peak-load power generated at the
hydroelectric power plants (Art. 9).
According to Article 10, the works were to be managed by the State on whose territory they
were located, "in accordance with the jointly-agreed operating and operational procedures",
while Article 12 stipulated that the operation, maintenance (repair) and reconstruction costs of
jointly owned works of the System of Locks were also to be borne jointly by the contracting
parties in equal measure.

According to Article 14,

"The discharge specified in the water balance of the approved joint contractual plan shall be
ensured in the bed of the Danube [between Dunakiliti and Sap] unless natural conditions or
other circumstances temporarily require a greater or smaller discharge."

Paragraph 3 of that Article was worded as follows:

"In the event that the withdrawal of water in the Hungarian-Czechoslovak section of the
Danube exceeds the quantities of water specified in the water balance of the approved joint
contractual plan and the excess withdrawal results in a decrease in the output of electric
power, the share of electric power of the Contracting Party benefiting from the excess
withdrawal shall be correspondingly reduced."

Article 15 specified that the contracting parties

"shall ensure, by the means specified in the joint contractual plan, that the quality of the water
in the Danube is not impaired as a result of the construction and operation of the System of
Locks". [p23]

Article 16 set forth the obligations of the contracting parties concerning the maintenance of
the bed of the Danube.

Article 18, paragraph 1, provided as follows:

"The Contracting Parties, in conformity with the obligations previously assumed by them, and
in particular with article 3 of the Convention concerning the regime of navigation on the
Danube, signed at Belgrade on 18 August 1948, shall ensure uninterrupted and safe
navigation on the international fairway both during the construction and during the operation
of the System of Locks."

It was stipulated in Article 19 that:

"The Contracting Parties shall, through the means specified in the joint contractual plan,
ensure compliance with the obligations for the protection of nature arising in connection with
the construction and operation of the System of Locks."

Article 20 provided for the contracting parties to take appropriate measures, within the
framework of their national investments, for the protection of fishing interests in conformity
with the Convention concerning Fishing in the Waters of the Danube, signed at Bucharest on
29 January 1958.

According to Article 22, paragraph 1, of the Treaty, the contracting parties had, in connection
with the construction and operation of the System of Locks, agreed on minor revision to the
course of the State frontier between them as follows:

"(d) In the Dunakiliti-Hrusov head-water area, the State frontier shall run from boundary point
161.V.O.a. to boundary stone No. I.5. in a straight line in such a way that the territories
affected, to the extent of about 10-10 hectares shall be offset between the two States."

It was further provided, in paragraph 2, that the revision of the State frontier and the exchange
of territories so provided for should be effected "by the Contracting Parties on the basis of a
separate treaty". No such treaty was concluded.

Finally a dispute settlement provision was contained in Article 27, worded as follows:

"1. The settlement of disputes in matters relating to the realization and operation of the
System of Locks shall be a function of the government delegates.

2. If the government delegates are unable to reach agreement on the matters in dispute, they
shall refer them to the Governments of the Contracting Parties for decision."

19. The Joint Contractual Plan, referred to in the previous paragraph, set forth, on a large
number of points, both the objectives of the system and the characteristics of the works. In its
latest version it specified in paragraph 6.2 that the Gabcikovo bypass canal would have a
discharge capacity of 4,000 cubic metres per second (m 3 / s). The power plant would include
"Eight . . . turbines with 9.20 m diameter running wheels" and would "mainly operate in peak-
load time and continuously during high water". This type of operation would give an energy
production of 2,650 gigawatt/hours (GWh) per annum. The plan further stipulated in
paragraph 4.4.2:

"The low waters are stored every day, which ensures the peak load time operation of the
Gabcikovo hydropower plant . . . a minimum of 50 m3/s additional water is provided for the
old bed [of the Danube] besides the water supply of the branch system."

The Plan further specified that, in the event that the discharge into the bypass canal exceeded
4,000-4,500 m<3>/s, the excess amounts of water would be channelled into the old bed.
Lastly, according to paragraph 7.7 of the Plan:

"The common operational regulation stipulates that concerning the operation of the Dunakiliti
barrage in the event of need during the growing season 200 m 3 / s discharge must be released
into the old Danube bed, in addition to the occasional possibilities for rinsing the bed."
The Joint Contractual Plan also contained "Preliminary Operating and Maintenance Rules",
Article 23 of which specified that "The final operating rules [should] be approved within a
year of the setting into operation of the system." (Joint Contractual Plan, Summary
Documentation, Vol. O-1-A.)

Nagymaros, with six turbines, was, according to paragraph 6.3 of the Plan, to be a
"hydropower station . . . type of a basic power-station capable of operating in peak-load time
for five hours at the discharge interval between 1,000-2,500 m3/ s" per day. The intended
annual production was to be 1,025 GWh (i.e., 38 per cent of the production of Gabcikovo, for
an installed power only equal to 21 per cent of that of Gabcikovo).

20. Thus, the Project was to have taken the form of an integrated joint project with the two
contracting parties on an equal footing in respect of the financing, construction and operation
of the works. Its single and indivisible nature was to have been realized through the Joint
Contractual Plan which complemented the Treaty. In particular, Hungary would have had
control of the sluices at Dunakiliti and the works at Nagymaros, whereas Czechoslovakia
would have had control of the works at Gabcikovo.

21. The schedule of work had for its part been fixed in an Agreement on mutual assistance
signed by the two parties on 16 September 1977, at [p25] the same time as the Treaty itself.
The Agreement moreover made some adjustments to the allocation of the works between the
parties as laid down by the Treaty.

Work on the Project started in 1978. On Hungary's initiative, the two parties first agreed, by
two Protocols signed on 10 October 1983 (one amending Article 4, paragraph 4, of the 1977
Treaty and the other the Agreement on mutual assistance), to slow the work down and to
postpone putting into operation the power plants, and then, by a Protocol signed on 6
February 1989 (which amended the Agreement on mutual assistance), to accelerate the
Project.

22. As a result of intense criticism which the Project had generated in Hungary, the Hungarian
Government decided on 13 May 1989 to suspend the works at Nagymaros pending the
completion of various studies which the competent authorities were to finish before 31 July
1989. On 21 July 1989, the Hungarian Government extended the suspension of the works at
Nagymaros until 31 October 1989, and, in addition, suspended the works at Dunakiliti until
the same date. Lastly, on 27 October 1989, Hungary decided to abandon the works at
Nagymaros and to maintain the status quo at Dunakiliti.

23. During this period, negotiations were being held between the parties. Czechoslovakia also
started investigating alternative solutions. One of them, subsequently known as "Variant C",
entailed a unilateral diversion of the Danube by Czechoslovakia on its territory some 10
kilometres upstream of Dunakiliti (see sketch-map No. 3 - 88 kb). In its final stage, Variant C
included the construction at Cunovo of an overflow dam and a levee linking that dam to the
south bank of the bypass canal. The corresponding reservoir was to have a smaller surface
area and provide approximately 30 per cent less storage than the reservoir initially
contemplated. Provision was made for ancillary works, namely: an intake structure to supply
the Mosoni Danube; a weir to enable, inter alia, floodwater to be directed along the old bed of
the Danube; an auxiliary shiplock; and two hydroelectric power plants (one capable of an
annual production of 4 GWh on the Mosoni Danube, and the other with a production of 174
GWh on the old bed of the Danube). The supply of water to the side-arms of the Danube on
the Czechoslovak bank was to be secured by means of two intake structures in the bypass
canal at Dobrohost' and Gabcikovo. A solution was to be found for the Hungarian bank.
Moreover, the question of the deepening of the bed of the Danube at the confluence of the
bypass canal and the old bed of the river remained outstanding.

On 23 July 1991, the Slovak Government decided "to begin, in September 1991, construction
to put the Gabcikovo Project into operation by the provisional solution". That decision was
endorsed by the Federal Czechoslovak Government on 25 July. Work on Variant C began in
November 1991. Discussions continued between the two parties but to no avail, and, on 19
May 1992, the Hungarian Government transmitted

[p26]

Sketch-Map No. 3

[p27] to the Czechoslovak Government a Note Verbale terminating the 1977 Treaty with
effect from 25 May 1992. On 15 October 1992, Czechoslovakia began work to enable the
Danube to be closed and, starting on 23 October, proceeded to the damming of the river.

24. On 23 October 1992, the Court was seised of an "Application of the Republic of Hungary
v. The Czech and Slovak Federal Republic on The Diversion of the Danube River"; however,
Hungary acknowledged that there was no basis on which the Court could have founded its
jurisdiction to entertain that application, on which Czechoslovakia took no action. In the
meanwhile, the Commission of the European Communities had offered to mediate and, during
a meeting of the two parties with the Commission held in London on 28 October 1992, the
parties entered into a series of interim undertakings. They principally agreed that the dispute
would be submitted to the International Court of Justice, that a tripartite fact-finding mission
should report on Variant C not later than 31 October, and that a tripartite group of
independent experts would submit suggestions as to emergency measures to be taken.

25. On 1 January 1993 Slovakia became an independent State. On 7 April 1993, the "Special
Agreement for Submission to the International Court of Justice of the Differences Between
the Republic of Hungary and the Slovak Republic Concerning the Gabcikovo-Nagymaros
Project" was signed in Brussels, the text of which is reproduced in paragraph 2 above. After
the Special Agreement was notified to the Court, Hungary informed the Court, by a letter
dated 9 August 1993, that it considered its "initial Application [to be] now without object, and
. . . lapsed".

According to Article 4 of the Special Agreement, "The Parties [agreed] that, pending the final
Judgment of the Court, they [would] establish and implement a temporary water management
regime for the Danube." However, this regime could not easily be settled. The filling of the
Cunovo dam had rapidly led to a major reduction in the flow and in the level of the
downstream waters in the old bed of the Danube as well as in the side-arms of the river. On
26 August 1993, Hungary and Slovakia reached agreement on the setting up of a tripartite
group of experts (one expert designated by each party and three independent experts
designated by the Commission of the European Communities)
"In order to provide reliable and undisputed data on the most important effects of the current
water discharge and the remedial measures already undertaken as well as to make
recommendations for appropriate measures."

On 1 December 1993, the experts designated by the Commission of the European

Communities recommended the adoption of various measures to remedy the situation on a
temporary basis. The Parties were unable to agree on these recommendations. After lengthy
negotiations, they finally concluded an Agreement "concerning Certain Temporary Technical
Measures and Discharges in the Danube and Mosoni branch of the Danube", [p28] on 19
April 1995. That Agreement raised the discharge of water into the Mosoni Danube to 43 m 3 /
s. It provided for an annual average of 400 m 3 / s in the old bed (not including flood waters).
Lastly, it provided for the construction by Hungary of a partially underwater weir near to
Dunakiliti with a view to improving the water supply to the side-arms of the Danube on the
Hungarian side. It was specified that this temporary agreement would come to an end 14 days
after the Judgment of the Court.

***

26. The first sub-paragraph of the Preamble to the Special Agreement covers the disputes
arising between Czechoslovakia and Hungary concerning the application and termination, not
only of the 1977 Treaty, but also of "related instruments"; the sub-paragraph specifies that, for
the purposes of the Special Agreement, the 1977 Treaty and the said instruments shall be
referred to as "the Treaty". "The Treaty" is expressly referred to in the wording of the
questions submitted to the Court in Article 2, paragraph 1, sub-paragraphs (a) and (c), of the
Special Agreement.

The Special Agreement however does not define the concept of "related instruments", nor
does it list them. As for the Parties, they gave some consideration to that question --
essentially in the written proceedings -- without reaching agreement as to the exact meaning
of the expression or as to the actual instruments referred to. The Court notes however that the
Parties seemed to agree to consider that that expression covers at least the instruments linked
to the 1977 Treaty which implement it, such as the Agreement on mutual assistance of 16
September 1977 and its amending Protocols dated, respectively, 10 October 1983 and 6
February 1989 (see paragraph 21 above), and the Agreement as to the common operational
regulations of Plenipotentiaries fulfilling duties related to the construction and operation of
the Gabcikovo-Nagymaros Barrage System signed in Bratislava on 11 October 1979. The
Court notes that Hungary, unlike Slovakia, declined to apply the description of related
instruments to the 1977 Treaty to the Joint Contractual Plan (see paragraph 19 above), which
it refused to see as "an agreement at the same level as the other [...]related Treaties and inter
State agreements".

Lastly the Court notes that the Parties, in setting out the replies which should in their view be
given to the questions put in the Special Agreement, concentrated their reasoning on the 1977
Treaty; and that they would appear to have extended their arguments to "related instruments"
in considering them as accessories to a whole treaty system, whose fate was in principle
linked to that of the main part, the 1977 Treaty. The Court takes note of the positions of the
Parties and considers that it does not need to go into this matter further at this juncture.

***

27. The Court will now turn to a consideration of the questions submitted by the Parties. In
terms of Article 2, paragraph 1 (a), of the Special Agreement, the Court is requested to decide
first

"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 Gabcikovo Project for which
the Treaty attributed responsibility to the Republic of Hungary".

28. The Court would recall that the Gabcikovo-Nagymaros System of Locks is characterized
in Article 1, paragraph 1, of the 1977 Treaty as a "single and indivisible operational system of
works".

The principal works which were to constitute this system have been described in general
terms above (see paragraph 18). Details of them are given in paragraphs 2 and 3 of Article 1
of the Treaty.

For Gabcikovo, paragraph 2 lists the following works:

"(a) The Dunakiliti-Hrusov head-water installations in the Danube sector at r.km. (river
kilometre(s)) 1860-1842, designed for a maximum flood stage of 131.10 m.B. (metres above
sea-level, Baltic system), in Hungarian and Czechoslovak territory;

(b) The Dunakiliti dam and auxiliary navigation lock at r.km. 1842, in Hungarian territory;

(c) The by-pass canal (head-water canal and tail-water canal) at r.km. 1842-1811, in
Czechoslovak territory;

(d) Series of locks on the by-pass canal, in Czechoslovak territory, consisting of a

hydroelectric power plant with installed capacity of 720 MW, double navigation locks and
appurtenances thereto;

(e) Improved old bed of the Danube at r.km. 1842-1811, in the joint Hungarian-Czechoslovak
section;
(f) Deepened and regulated bed of the Danube at r.km. 1811-1791, in the joint Hungarian-
Czechoslovak section."

For Nagymaros, paragraph 3 specifies the following works:

"(a) Head-water installations and flood-control works in the Danube sector at r.km. 1791-
1696.25 and in the sectors of tributaries affected by flood waters, designed for a maximum
flood stage of 107.83 m.B., in Hungarian and Czechoslovak territory;

(b) Series of locks at r.km. 1696.25, in Hungarian territory, consisting of a dam, a

hydroelectric power plant with installed capacity of 158 MW, double navigation locks and
appurtenances thereto;

(c) Deepened and regulated bed of the Danube, in both its branches, at r.km. 1696.25-1657, in
the Hungarian section."[p30]

29. Moreover, the precise breakdown of the works incumbent on each party was set out in
Article 5, paragraph 5, of the 1977 Treaty, as follows:

"5. The labour and supplies required for the realization of the joint investment shall be
apportioned between the Contracting Parties in the following manner:

(a) The Czechoslovak Party shall be responsible for:

(1) The Dunakiliti-Hrusov head-water installations on the left bank, in Czechoslovak territory;

(2) The head-water canal of the by-pass canal, in Czechoslovak territory;

(3) The Gabcikovo series of locks, in Czechoslovak territory;

(4) The flood-control works of the Nagymaros head-water installations, in Czechoslovak

territory, with the exception of the lower Ipel district;

(5) Restoration of vegetation in Czechoslovak territory;

(b) The Hungarian Party shall be responsible for:

(1) The Dunakiliti-Hrusov head-water installations on the right bank, in Czechoslovak

territory, including the connecting weir and the diversionary weir;

(2) The Dunakiliti-Hrusov head-water installations on the right bank, in Hungarian territory;

(3) The Dunakiliti dam, in Hungarian territory;

(4) The tail-water canal of the by-pass canal, in Czechoslovak territory;

(5) Deepening of the bed of the Danube below Palkovieovo, in Hungarian and Czechoslovak
territory;

(6) Improvement of the old bed of the Danube, in Hungarian and Czechoslovak territory;

(7) Operational equipment of the Gabcikovo system of locks (transport equipment,

maintenance machinery), in Czechoslovak territory;

(8) The flood-control works of the Nagymaros head-water installations in the lower Ipel
district, in Czechoslovak territory;

(9) The flood-control works of the Nagymaros head-water installations, in Hungarian

territory;

(10) The Nagymaros series of locks, in Hungarian territory;

(11) Deepening of the tail-water bed below the Nagymaros system of locks, in Hungarian
territory;

(12) Operational equipment of the Nagymaros system of locks (transport equipment,

maintenance machinery), in Hungarian territory;

(13) Restoration of vegetation in Hungarian territory." [p31]

30. As the Court has already indicated (see paragraph 18 above), Article 1, paragraph 4, of the
1977 Treaty stipulated in general terms that the "technical specifications" concerning the
System of Locks would be included in the "joint contractual plan". The schedule of work had
for its part been fixed in an Agreement on mutual assistance signed by the two parties on 16
September 1977 (see paragraph 21 above). In accordance with the provisions of Article 1,
paragraph 1, of that Agreement, the whole of the works of the barrage system were to have
been completed in 1991. As indicated in paragraph 2 of that same article, a summary
construction schedule was appended to the Agreement, and provision was made for a more
detailed schedule to be worked out in the Joint Contractual Plan. The Agreement of 16
September 1977 was twice amended further. By a Protocol signed on 10 October 1983, the
parties agreed first to postpone the works and the putting into operation of the power plants
for four more years; then, by a Protocol signed on 6 February 1989, the parties decided,
conversely, to bring them forward by 15 months, the whole system having to be operational in
1994. A new summary construction schedule was appended to each of those Protocols; those
schedules were in turn to be implemented by means of new detailed schedules, included in the
Joint Contractual Plan.
31. In spring 1989, the work on the Gabcikovo sector was well advanced: the Dunakiliti dam
was 90 per cent complete, the Gabcikovo dam was 85 per cent complete, and the bypass canal
was between 60 per cent complete (downstream of Gabcikovo) and 95 per cent complete
(upstream of Gabcikovo) and the dykes of the Dunakiliti-Hrusov reservoir were between 70
and 98 per cent complete, depending on the location. This was not the case in the Nagymaros
sector where, although dykes had been built, the only structure relating to the dam itself was
the coffer-dam which was to facilitate its construction.

32. In the wake of the profound political and economic changes which occurred at this time in
central Europe, the Gabcikovo-Nagymaros Project was the object, in Czechoslovakia and
more particularly in Hungary, of increasing apprehension, both within a section of public
opinion and in some scientific circles. The uncertainties not only about the economic viability
of the Project, but also, and more so, as to the guarantees it offered for preservation of the
environment, engendered a climate of growing concern and opposition with regard to the
Project.

33. It was against this background that, on 13 May 1989, the Government of Hungary adopted
a resolution to suspend works at Nagymaros, and ordered:

"the Ministers concerned to commission further studies in order to place the Council of
Ministers in a position where it can make well-founded suggestions to the Parliament in
connection with the amendment of the international treaty on the investment. In the interests
of [p32] the above, we must examine the international and legal consequences, the technical
considerations, the obligations related to continuous navigation on the Danube and the
environmental/ecological and seismic impacts of the eventual stopping of the Nagymaros
investment. To be further examined are the opportunities for the replacement of the lost
electric energy and the procedures for minimising claims for compensation."

The suspension of the works at Nagymaros was intended to last for the duration of these
studies, which were to be completed by 31 July 1989. Czechoslovakia immediately protested
and a document defining the position of Czechoslovakia was transmitted to the Ambassador
of Hungary in Prague on 15 May 1989. The Prime Ministers of the two countries met on 24
May 1989, but their talks did not lead to any tangible result. On 2 June, the Hungarian
Parliament authorized the Government to begin negotiations with Czechoslovakia for the
purpose of modifying the 1977 Treaty.

34. At a meeting held by the Plenipotentiaries on 8 and 9 June 1989, Hungary gave
Czechoslovakia a number of assurances concerning the continuation of works in the
Gabcikovo sector, and the signed Protocol which records that meeting contains the following
passage:

"The Hungarian Government Commissioner and the Hungarian Plenipotentiary stated, that
the Hungarian side will complete construction of the Gabcikovo Project in the agreed time
and in accordance with the project plans. Directives have already been given to continue
works suspended in the area due to misunderstanding."

These assurances were reiterated in a letter that the Commissioner of the Government of
Hungary addressed to the Czechoslovak Plenipotentiary on 9 June 1989.

35. With regard to the suspension of work at Nagymaros, the Hungarian Deputy-Prime
Minister, in a letter dated 24 June 1989 addressed to his Czechoslovak counterpart, expressed
himself in the following terms:

"The Hungarian Academy of Sciences (HAS) has studied the environmental, ecological and
water quality as well as the seismological impacts of abandoning or implementing the
Nagymaros Barrage of the Gabcikovo-Nagymaros Barrage System (GNBS).
………………………………………………………………………………………………
Having studied the expected impacts of the construction in accordance with the original plan,
the Committee [ad hoc] of the Academy [set up for this purpose] came to the conclusion that
we do not have adequate knowledge of the consequences of environmental risks.

In its opinion, the risk of constructing the Barrage System in accordance with the original plan
cannot be considered acceptable. Of course, it cannot be stated either that the adverse impacts
will [p33] ensue for certain, therefore, according to their recommendation, further thorough
and time consuming studies are necessary."

36. The Hungarian and Czechoslovak Prime Ministers met again on 20 July 1989 to no avail.
Immediately after that meeting, the Hungarian Government adopted a second resolution,
under which the suspension of work at Nagymaros was extended to 31 October 1989.
However, this resolution went further, as it also prescribed the suspension, until the same
date, of the "Preparatory works on the closure of the riverbed at . . . Dunakiliti"; the purpose
of this measure
was to invite "international scientific institutions [and] foreign scientific institutes and
experts" to co-operate with "the Hungarian and Czechoslovak institutes and experts" with a
view to an assessment of the ecological impact of the Project and the "development of a
technical and operational water quality guarantee system and . . . its implementation".

37. In the ensuing period, negotiations were conducted at various levels between the two
States, but proved fruitless. Finally, by a letter dated 4 October 1989, the Hungarian Prime
Minister formally proposed to Czechoslovakia that the Nagymaros sector of the Project be
abandoned and that an agreement be concluded with a view to reducing the ecological risks
associated with the Gabcikovo sector of the Project. He proposed that that agreement should
be concluded before 30 July 1990.

The two Heads of Government met on 26 October 1989, and were unable to reach agreement.
By a Note Verbale dated 30 October 1989, Czechoslovakia, confirming the views it had
expressed during those talks, proposed to Hungary that they should negotiate an agreement on
a system of technical, operational and ecological guarantees relating to the Gabcikovo-
Nagymaros Project, "on the assumption that the Hungarian party will immediately commence
preparatory work on the refilling of the Danube's bed in the region of Dunakiliti". It added
that the technical principles of the agreement could be initialled within two weeks and that the
agreement itself ought to be signed before the end of March 1990. After the principles had
been initialled, Hungary "[was to] start the actual closure of the Danube bed". Czechoslovakia
further stated its willingness to "conclu[de] . . . a separate agreement in which both parties
would oblige themselves to limitations or exclusion of peak hour operation mode of the . . .
System". It also proposed "to return to deadlines indicated in the Protocol of October 1983",
the Nagymaros construction deadlines being thus extended by 15 months, so as to enable
Hungary to take advantage of the time thus gained to study the ecological issues and
formulate its own proposals in due time. Czechoslovakia concluded by announcing that,
should Hungary continue unilaterally to breach the Treaty, Czechoslovakia would proceed
with a provisional solution.

In the meantime, the Hungarian Government had on 27 October adopted a further resolution,
deciding to abandon the construction of the [p34] Nagymaros dam and to leave in place the
measures previously adopted for suspending the works at Dunakiliti. Then, by Notes Verbales
dated 3 and 30 November 1989, Hungary proposed to Czechoslovakia a draft treaty
incorporating its earlier proposals, relinquishing peak power operation of the Gabcikovo
power plant and abandoning the construction of the Nagymaros dam. The draft provided for
the conclusion of an agreement on the completion of Gabcikovo in exchange for guarantees
on protection of the environment. It finally envisaged the possibility of one or other party
seising an arbitral tribunal or the International Court of Justice in the event that differences of
view arose and persisted between the two Governments about the construction and operation
of the Gabcikovo dam, as well as measures to be taken to protect the environment. Hungary
stated that it was ready to proceed immediately "with the preparatory operations for the
Dunakiliti bed-decanting", but specified that the river would not be dammed at Dunakiliti
until the agreement on guarantees had been concluded.

38. During winter 1989-1990, the political situation in Czechoslovakia and Hungary alike was
transformed, and the new Governments were confronted with many new problems.

In spring 1990, the new Hungarian Government, in presenting its National Renewal
Programme, announced that the whole of the Gabcikovo-Nagymaros Project was a "mistake"
and that it would initiate negotiations as soon as possible with the Czechoslovak Government
"on remedying and sharing the damages". On 20 December 1990, the Hungarian Government
adopted a resolution for the opening of negotiations with Czechoslovakia on the termination
of the Treaty by mutual consent and the conclusion of an agreement addressing the
consequences of the termination. On 15 February 1991, the Hungarian Plenipotentiary
transmitted a draft agreement along those lines to his Czechoslovak counterpart.

On the same day, the Czechoslovak President declared that the Gabcikovo-Nagymaros Project
constituted a "totalitarian, gigomaniac monument which is against nature", while emphasizing
that "the problem [was] that [the Gabcikovo power plant] [had] already been built". For his
part, the Czechoslovak Minister of the Environment stated, in a speech given to Hungarian
parliamentary committees on 11 September 1991, that "the G/N Project [was] an old, obsolete
one", but that, if there were "many reasons to change, modify the treaty . . . it [was] not
acceptable to cancel the treaty . . . and negotiate later on".

During the ensuing period, Hungary refrained from completing the work for which it was still
responsible at Dunakiliti. Yet it continued to maintain the structures it had already built and,
at the end of 1991, completed the works relating to the tailrace canal of the bypass canal
assigned to it under Article 5, paragraph 5 (b), of the 1977 Treaty.

**[p35]

39. The two Parties to this case concur in recognizing that the 1977 Treaty, the above-
mentioned Agreement on mutual assistance of 1977 and the Protocol of 1989 were validly
concluded and were duly in force when the facts recounted above took place.

Further, they do not dispute the fact that, however flexible they may have been, these texts did
not envisage the possibility of the signatories unilaterally suspending or abandoning the work
provided for therein, or even carrying it out according to a new schedule not approved by the
two partners.

40. Throughout the proceedings, Hungary contended that, although it did suspend or abandon
certain works, on the contrary, it never suspended the application of the 1977 Treaty itself. To
justify its conduct, it relied essentially on a "state of ecological necessity".

Hungary contended that the various installations in the Gabcikovo-Nagymaros System of

Locks had been designed to enable the Gabcikovo power plant to operate in peak mode.
Water would only have come through the plant twice each day, at times of peak power
demand. Operation in peak mode required the vast expanse (60 km2) of the planned reservoir
at Dunakiliti, as well as the Nagymaros dam, which was to alleviate the tidal effects and
reduce the variation in the water level downstream of Gabcikovo. Such a system, considered
to be more economically profitable than using run-of-the-river plants, carried ecological risks
which it found unacceptable.

According to Hungary, the principal ecological dangers which would have been caused by
this system were as follows. At Gabcikovo/Dunakiliti, under the original Project, as specified
in the Joint Contractual Plan, the residual discharge into the old bed of the Danube was
limited to 50 m3/s, in addition to the water provided to the system of side-arms. That volume
could be increased to 200 m3/s during the growing season. Additional discharges, and in
particular a number of artificial floods, could also be effected, at an unspecified rate. In these
circumstances, the groundwater level would have fallen in most of the Szigetkoz.
Furthermore, the groundwater would then no longer have been supplied by the Danube -
which, on the contrary, would have acted as a drain - but by the reservoir of stagnant water at
Dunakiliti and the side-arms which would have become silted up. In the long term, the quality
of water would have been seriously impaired. As for the surface water, risks of eutrophication
would have arisen, particularly in the reservoir; instead of the old Danube there would have
been a river choked with sand, where only a relative trickle of water would have flowed. The
network of arms would have been for the most part cut off from the principal bed. The fluvial
fauna and flora, like those in the alluvial plains, would have been condemned to extinction.

As for Nagymaros, Hungary argued that, if that dam had been built, [p36] the bed of the
Danube upstream would have silted up and, consequently, the quality of the water collected in
the bank-filtered wells would have deteriorated in this sector. What is more, the operation of
the Gabcikovo power plant in peak mode would have occasioned significant daily variations
in the water level in the reservoir upstream, which would have constituted a threat to aquatic
habitats in particular. Furthermore, the construction and operation of the Nagymaros dam
would have caused the erosion of the riverbed downstream, along Szentendre Island. The
water level of the river would therefore have fallen in this section and the yield of the bank-
filtered wells providing two-thirds of the water supply of the city of Budapest would have
appreciably diminished. The filter layer would also have shrunk or perhaps even disappeared,
and fine sediments would have been deposited in certain pockets in the river. For this twofold
reason, the quality of the infiltrating water would have been severely jeopardized.

From all these predictions, in support of which it quoted a variety of scientific studies,
Hungary concluded that a "state of ecological necessity" did indeed exist in 1989.

41. In its written pleadings, Hungary also accused Czechoslovakia of having violated various
provisions of the 1977 Treaty from before 1989 - in particular articles 15 and 19 relating,
respectively, to water quality and nature protection - in refusing to take account of the now
evident ecological dangers and insisting that the works be continued, notably at Nagymaros.
In this context Hungary contended that, in accordance with the terms of Article 3, paragraph
2, of the Agreement of 6 May 1976 concerning the Joint Contractual Plan, Czechoslovakia
bore responsibility for research into the Project's impact on the environment; Hungary
stressed that the research carried out by Czechoslovakia had not been conducted adequately,
the potential effects of the Project on the environment of the construction having been
assessed by Czechoslovakia only from September 1990. However, in the final stage of its
argument, Hungary does not appear to have sought to formulate this complaint as an
independent ground formally justifying the suspension and abandonment of the works for
which it was responsible under the 1977 Treaty. Rather, it presented the violations of the
Treaty prior to 1989, which it imputes to Czechoslovakia, as one of the elements contributing
to the emergence of a state of necessity.

42. Hungary moreover contended from the outset that its conduct in the present case should
not be evaluated only in relation to the law of treaties. It also observed that, in accordance
with the provisions of Article 4, the Vienna Convention of 23 May 1969 on the Law of
Treaties could not be applied to the 1977 Treaty, which was concluded before that Convention
entered into force as between the parties. Hungary has indeed acknowledged, with reference
to the jurisprudence of the Court, that in many respects the Convention reflects the existing
customary law. Hungary nonetheless stressed the need to adopt a cautious attitude, while
[p37] suggesting that the Court should consider, in each case, the conformity of the
prescriptions of the Convention with customary international law.
43. Slovakia, for its part, denied that the basis for suspending or abandoning the performance
of a treaty obligation can be found outside the law of treaties. It acknowledged that the 1969
Vienna Convention could not be applied as such to the 1977 Treaty, but at the same time
stressed that a number of its provisions are a reflection of pre-existing rules of customary
international law and specified that this is, in particular, the case with the provisions of Part V
relating to invalidity, termination and suspension of the operation of treaties. Slovakia has
moreover observed that, after the Vienna Convention had entered into force for both parties,
Hungary affirmed its accession to the substantive obligations laid down by the 1977 Treaty
when it signed the Protocol of 6 February 1989 that cut short the schedule of work; and this
led it to conclude that the Vienna Convention was applicable to the "contractual legal regime"
constituted by the network of interrelated agreements of which the Protocol of 1989 was a
part.

44. In the course of the proceedings, Slovakia argued at length that the state of necessity upon
which Hungary relied did not constitute a reason for the suspension of a treaty obligation
recognized by the law of treaties. At the same time, it cast doubt upon whether "ecological
necessity" or "ecological risk" could, in relation to the law of State responsibility, constitute a
circumstance precluding the wrongfulness of an act.

In any event, Slovakia denied that there had been any kind of "ecological state of necessity" in
this case either in 1989 or subsequently. It invoked the authority of various scientific studies
when it claimed that Hungary had given an exaggeratedly pessimistic description of the
situation. Slovakia did not, of course, deny that ecological problems could have arisen.
However, it asserted that they could to a large extent have been remedied. It accordingly
stressed that no agreement had been reached with respect to the modalities of operation of the
Gabcikovo power plant in peak mode, and claimed that the apprehensions of Hungary related
only to operating conditions of an extreme kind. In the same way, it contended that the
original Project had undergone various modifications since 1977 and that it would have been
possible to modify it even further, for example with respect to the discharge of water reserved
for the old bed of the Danube, or the supply of water to the side-arms by means of underwater
weirs.

45. Slovakia moreover denied that it in any way breached the 1977 Treaty -- particularly its
Articles 15 and 19 -- and maintained, inter alia, that according to the terms of Article 3,
paragraph 2, of the Agreement of 6 May 1976 relating to the Joint Contractual Plan --
research into the impact of the Project on the environment was not the exclusive responsibility
of Czechoslovakia but of either one of the parties, depending on the location of the works.

Lastly, in its turn, it reproached Hungary with having adopted its unilateral measures of
suspension and abandonment of the works in viola-[p38]tion of the provisions of Article 27 of
the 1977 Treaty (see paragraph 18 above), which it submits required prior recourse to the
machinery for dispute settlement provided for in that Article.

**
46. The Court has no need to dwell upon the question of the applicability in the present case
of the Vienna Convention of 1969 on the Law of Treaties. It needs only to be mindful of the
fact that it has several times had occasion to hold that some of the rules laid down in that
Convention might be considered as a codification of existing customary law. The Court takes
the view that in many respects this applies to the provisions of the Vienna Convention
concerning the termination and the suspension of the operation of treaties, set forth in Articles
60 to 62 (see Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South-West Africa)notwithstanding Security Council Resolution 276 (1970)),
Advisory Opinion, I.C.J. Reports 1971, p. 47 and Fisheries Jurisdiction (United Kingdom v.
Iceland), Jurisdiction of the Court, Judgment, I.C.J. Reports 1973, p. 18; see also
Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory
Opinion, I.C.J. Reports 1980, pp. 95-96).

Neither has the Court lost sight of the fact that the Vienna Convention is in any event
applicable to the Protocol of 6 February 1989 whereby Hungary and Czechoslovakia agreed
to accelerate completion of the works relating to the Gabcikovo-Nagymaros Project.

47. Nor does the Court need to dwell upon the question of the relationship between the law of
treaties and the law of State responsibility, to which the Parties devoted lengthy arguments, as
those two branches of international law obviously have a scope that is distinct. A
determination of whether a convention is or is not in force, and whether it has or has not been
properly suspended or denounced, is to be made pursuant to the law of treaties. On the other
hand, an evaluation of the extent to which the suspension or denunciation of a convention,
seen as incompatible with the law of treaties, involves the responsibility of the State which
proceeded to it, is to be made under the law of State responsibility.

Thus the Vienna Convention of 1969 on the Law of Treaties confines itself to defining -- in a
limitative manner -- the conditions in which a treaty may lawfully be denounced or
suspended; while the effects of a denunciation or suspension seen as not meeting those
conditions are, on the contrary, expressly excluded from the scope of the Convention by
operation of Article 73. It is moreover well established that, when a State has committed an
internationally wrongful act, its international responsibility is likely to be involved whatever
the nature of the obligation it has failed to respect (cf. Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania, Second Phase, Advisory Opinion, I.C.J. Reports 1950, p.
228; and see Article 17 of the Draft Articles on State Responsi-[p39]bility provisionally
adopted by the International Law Commission on first reading, Yearbook of the International
Law Commission, 1980, Vol. II, Part 2, p. 32).

48. The Court cannot accept Hungary's argument to the effect that, in 1989, in suspending and
subsequently abandoning the works for which it was still responsible at Nagymaros and at
Dunakiliti, it did not, for all that, suspend the application of the 1977 Treaty itself or then
reject that Treaty. The conduct of Hungary at that time can only be interpreted as an
expression of its unwillingness to comply with at least some of the provisions of the Treaty
and the Protocol of 6 February 1989, as specified in the Joint Contractual Plan. The effect of
Hungary's conduct was to render impossible the accomplishment of the system of works that
the Treaty expressly described as "single and indivisible".

The Court moreover observes that, when it invoked the state of necessity in an effort to justify
that conduct, Hungary chose to place itself from the outset within the ambit of the law of State
responsibility, thereby implying that, in the absence of such a circumstance, its conduct would
have been unlawful. The state of necessity claimed by Hungary -- supposing it to have been
established -- thus could not permit of the conclusion that, in 1989, it had acted in accordance
with its obligations under the 1977 Treaty or that those obligations had ceased to be binding
upon it. It would only permit the affirmation that, under the circumstances, Hungary would
not incur international responsibility by acting as it did. Lastly, the Court points out that
Hungary expressly acknowledged that, in any event, such a state of necessity would not
exempt it from its duty to compensate its partner.

49. The Court will now consider the question of whether there was, in 1989, a state of
necessity which would have permitted Hungary, without incurring international responsibility,
to suspend and abandon works that it was committed to perform in accordance with the 1977
Treaty and related instruments.

50. In the present case, the Parties are in agreement in considering that the existence of a state
of necessity must be evaluated in the light of the criteria laid down by the International Law
Commission in Article 33 of the Draft Articles on the International Responsibility of States
that it adopted on first reading. That provision is worded as follows:

"Article 33. State of necessity

1. A state of necessity may not be invoked by a State as a ground for precluding the
wrongfulness of an act of that State not in conformity with an international obligation of the
State unless:

(a) the act was the only means of safeguarding an essential interest of the State against a grave
and imminent peril; and[p40]

(b) the act did not seriously impair an essential interest of the State towards which the
obligation existed.

2. In any case, a state of necessity may not be invoked by a State as a ground for precluding
wrongfulness:

(a) if the international obligation with which the act of the State is not in conformity arises out
of a peremptory norm of general international law; or

(b) if the international obligation with which the act of the State is not in conformity is laid
down by a treaty which, explicitly or implicitly, excludes the possibility of invoking the state
of necessity with respect to that obligation; or

(c) if the State in question has contributed to the occurrence of the state of necessity."
(Yearbook of the International Law Commission, 1980, Vol. II, Part 2, p. 34.)

In its Commentary, the Commission defined the "state of necessity" as being

"the situation of a State whose sole means of safeguarding an essential interest threatened by a
grave and imminent peril is to adopt conduct not in conformity with what is required of it by
an international obligation to another State" (ibid., para. 1).)

It concluded that "the notion of state of necessity is . . . deeply rooted in general legal
thinking" (ibid., p. 49, para. 31).

51. The Court considers, first of all, that the state of necessity is a ground recognized by
customary international law for precluding the wrongfulness of an act not in conformity with
an international obligation. It observes moreover that such ground for precluding
wrongfulness can only be accepted on an exceptional basis. The International Law
Commission was of the same opinion when it explained that it had opted for a negative form
of words in Article 33 of its Draft

"in order to show, by this formal means also, that the case of invocation of a state of necessity
as a justification must be considered as really constituting an exception - and one even more
rarely admissible than is the case with the other circumstances precluding wrongfulness . . ."
(ibid., p. 51, para. 40).

Thus, according to the Commission, the state of necessity can only be invoked under certain
strictly defined conditions which must be cumulatively satisfied; and the State concerned is
not the sole judge of whether those conditions have been met.

52. In the present case, the following basic conditions set forth in Draft Article 33 are
relevant: it must have been occasioned by an "essential interest" of the State which is the
author of the act conflicting with one of its international obligations; that interest must have
been threatened by a "grave and imminent peril"; the act being challenged must have been the
"only means" of safeguarding that interest; that act must not have "seriously impair[ed] an
essential interest" of the State towards which the obligation existed; and the State which is the
author of that act must not have "contributed to the occurrence of the state of necessity".
Those conditions reflect customary international law.

The Court will now endeavour to ascertain whether those conditions had been met at the time
of the suspension and abandonment, by Hungary, of the works that it was to carry out in
accordance with the 1977 Treaty.

53. The Court has no difficulty in acknowledging that the concerns expressed by Hungary for
its natural environment in the region affected by the Gabcikovo-Nagymaros Project related to
an "essential interest" of that State, within the meaning given to that expression in Article 33
of the Draft of the International Law Commission.

The Commission, in its Commentary, indicated that one should not, in that context, reduce an
"essential interest" to a matter only of the "existence" of the State, and that the whole question
was, ultimately, to be judged in the light of the particular case (see Yearbook of the
International Law Commission, 1980, Vol. II, Part 2, p. 49, para. 32); at the same time, it
included among the situations that could occasion a state of necessity, "a grave danger to . . .
the ecological preservation of all or some of [the] territory [of a State]" (ibid., p. 35, para. 3);
and specified, with reference to State practice, that "It is primarily in the last two decades that
safeguarding the ecological balance has come to be considered an 'essential interest' of all
States." (Ibid., p. 39, para. 14.)

The Court recalls that it has recently had occasion to stress, in the following terms, the great
significance that it attaches to respect for the environment, not only for States but also for the
whole of mankind:

"the environment is not an abstraction but represents the living space, the quality of life and
the very health of human beings, including generations unborn. The existence of the general
obligation of States to ensure that activities within their jurisdiction and control respect the
environment of other States or of areas beyond national control is now part of the corpus of
international law relating to the environment." (Legality of the Threat or Use of Nuclear
Weapons, Advisory Opinion, I.C.J. Reports 1996, pp. 241-242, para. 29.)

54. The verification of the existence, in 1989, of the "peril" invoked by Hungary, of its "grave
and imminent" nature, as well as of the absence of any "means" to respond to it, other than the
measures taken by Hungary to suspend and abandon the works, are all complex processes.

As the Court has already indicated (see paragraphs 33 et seq. above), Hungary on several
occasions expressed, in 1989, its "uncertainties" as to the ecological impact of putting in place
the Gabcikovo-Nagymaros barrage system, which is why it asked insistently for new
scientific studies to be carried out.

The Court considers, however, that, serious though these uncertainties might have been they
could not, alone, establish the objective existence of a "peril" in the sense of a component
element of a state of necessity. The word "peril" certainly evokes the idea of "risk"; that is
precisely what distinguishes "peril" from material damage. But a state of necessity could not
exist without a "peril" duly established at the relevant point in time; the mere apprehension of
a possible "peril" could not suffice in that respect. It could moreover hardly be otherwise,
when the "peril" constituting the state of necessity has at the same time to be "grave" and
"imminent". "Imminence" is synonymous with "immediacy" or "proximity" and goes far
beyond the concept of "possibility". As the International Law Commission emphasized in its
commentary, the "extremely grave and imminent" peril must "have been a threat to the
interest at the actual time" (Yearbook of the International Law Commission, 1980, Vol. II,
Part 2, p. 49, para. 33). That does not exclude, in the view of the Court, that a "peril"
appearing in the long term might be held to be "imminent" as soon as it is established, at the
relevant point in time, that the realization of that peril, however far off it might be, is not
thereby any less certain and inevitable.

The Hungarian argument on the state of necessity could not convince the Court unless it was
at least proven that a real, "grave" and "imminent" "peril" existed in 1989 and that the
measures taken by Hungary were the only possible response to it.

Both Parties have placed on record an impressive amount of scientific material aimed at
reinforcing their respective arguments. The Court has given most careful attention to this
material, in which the Parties have developed their opposing views as to the ecological
consequences of the Project. It concludes, however, that, as will be shown below, it is not
necessary in order to respond to the questions put to it in the Special Agreement for it to
determine which of those points of view is scientifically better founded.

55. The Court will begin by considering the situation at Nagymaros. As has already been
mentioned (see paragraph 40 above), Hungary maintained that, if the works at Nagymaros had
been carried out as planned, the environment -- and in particular the drinking water resources
-- in the area would have been exposed to serious dangers on account of problems linked to
the upstream reservoir on the one hand and, on the other, the risks of erosion of the riverbed
downstream.

The Court notes that the dangers ascribed to the upstream reservoir were mostly of a long-
term nature and, above all, that they remained uncertain. Even though the Joint Contractual
Plan envisaged that the Gab-[p43]cikovo power plant would "mainly operate in peak-load
time and continuously during high water", the final rules of operation had not yet been
determined (see paragraph 19 above); however, any dangers associated with the putting into
service of the Nagymaros portion of the Project would have been closely linked to the extent
to which it was operated in peak mode and to the modalities of such operation. It follows that,
even if it could have been established -- which, in the Court's appreciation of the evidence
before it, was not the case -- that the reservoir would ultimately have constituted a "grave
peril" for the environment in the area, one would be bound to conclude that the peril was not
"imminent" at the time at which Hungary suspended and then abandoned the works relating to
the dam.

With regard to the lowering of the riverbed downstream of the Nagymaros dam, the danger
could have appeared at once more serious and more pressing, in so far as it was the supply of
drinking water to the city of Budapest which would have been affected. The Court would
however point out that the bed of the Danube in the vicinity of Szentendre had already been
deepened prior to 1980 in order to extract building materials, and that the river had from that
time attained, in that sector, the depth required by the 1977 Treaty. The peril invoked by
Hungary had thus already materialized to a large extent for a number of years, so that it could
not, in 1989, represent a peril arising entirely out of the project. The Court would stress,
however, that, even supposing, as Hungary maintained, that the construction and operation of
the dam would have created serious risks, Hungary had means available to it, other than the
suspension and abandonment of the works, of responding to that situation. It could for
example have proceeded regularly to discharge gravel into the river downstream of the dam. It
could likewise, if necessary, have supplied Budapest with drinking water by processing the
river water in an appropriate manner. The two Parties expressly recognized that that
possibility remained open even though -- and this is not determinative of the state of necessity
-- the purification of the river water, like the other measures envisaged, clearly would have
been a more costly technique.

56. The Court now comes to the Gabcikovo sector. It will recall that Hungary's concerns in
this sector related on the one hand to the quality of the surface water in the Dunakiliti
reservoir, with its effects on the quality of the groundwater in the region, and on the other
hand, more generally, to the level, movement and quality of both the surface water and the
groundwater in the whole of the Szigetkoz, with their effects on the fauna and flora in the
alluvial plain of the Danube (see paragraph 40 above).

Whether in relation to the Dunakiliti site or to the whole of the Szigetkoz, the Court finds here
again, that the peril claimed by Hungary was to be considered in the long term, and, more
importantly, remained uncertain. As Hungary itself acknowledges, the damage that it appre-
[p44]hended had primarily to be the result of some relatively slow natural processes, the
effects of which could not easily be assessed.

Even if the works were more advanced in this sector than at Nagymaros, they had not been
completed in July 1989 and, as the Court explained in paragraph 34 above, Hungary expressly
undertook to carry on with them, early in June 1989. The report dated 23 June 1989 by the ad
hoc Committee of the Hungarian Academy of Sciences, which was also referred to in
paragraph 35 of the present Judgment, does not express any awareness of an authenticated
peril -- even in the form of a definite peril, whose realization would have been inevitable in
the long term -- when it states that:

"The measuring results of an at least five-year monitoring period following the completion of
the Gabcikovo construction are indispensable to the trustworthy prognosis of the ecological
impacts of the barrage system. There is undoubtedly a need for the establishment and regular
operation of a comprehensive monitoring system, which must be more developed than at
present. The examination of biological indicator objects that can sensitively indicate the
changes happening in the environment, neglected till today, have to be included."

The report concludes as follows:

"It can be stated, that the environmental, ecological and water quality impacts were not taken
into account properly during the design and construction period until today. Because of the
complexity of the ecological processes and lack of the measured data and the relevant
calculations the environmental impacts cannot be evaluated.
The data of the monitoring system newly operating on a very limited area are not enough to
forecast the impacts probably occurring over a longer term. In order to widen and to make the
data more frequent a further multi-year examination is necessary to decrease the further
degradation of the water quality playing a dominant role in this question. The expected water
quality influences equally the aquatic ecosystems, the soils and the recreational and tourist
land-use."

The Court also notes that, in these proceedings, Hungary acknowledged that, as a general rule,
the quality of the Danube waters had improved over the past 20 years, even if those waters
remained subject to hypertrophic conditions.

However "grave" it might have been, it would accordingly have been difficult, in the light of
what is said above, to see the alleged peril as sufficiently certain and therefore "imminent" in
1989.

The Court moreover considers that Hungary could, in this context [p45] also, have resorted to
other means in order to respond to the dangers that it apprehended. In particular, within the
framework of the original Project, Hungary seemed to be in a position to control at least
partially the distribution of the water between the bypass canal, the old bed of the Danube and
the side-arms. It should not be overlooked that the Dunakiliti dam was located in Hungarian
territory and that Hungary could construct the works needed to regulate flows along the old
bed of the Danube and the side-arms. Moreover, it should be borne in mind that Article 14 of
the 1977 Treaty provided for the possibility that each of the parties might withdraw quantities
of water exceeding those specified in the Joint Contractual Plan, while making it clear that, in
such an event, "the share of electric power of the Contracting Party benefitting from the
excess withdrawal shall be correspondingly reduced".

57. The Court concludes from the foregoing that, with respect to both Nagymaros and
Gabcikovo, the perils invoked by Hungary, without prejudging their possible gravity, were
not sufficiently established in 1989, nor were they "imminent"; and that Hungary had
available to it at that time means of responding to these perceived perils other than the
suspension and abandonment of works with which it had been entrusted. What is more,
negotiations were under way which might have led to a review of the Project and the
extension of some of its time-limits, without there being need to abandon it. The Court infers
from this that the respect by Hungary, in 1989, of its obligations under the terms of the 1977
Treaty would not have resulted in a situation "characterized so aptly by the maxim summum
jus summa injuria" (Yearbook of the International Law Commission, 1980, Vol. II, Part 2, p.
49, para. 31).

Moreover, the Court notes that Hungary decided to conclude the 1977 Treaty, a Treaty which
-- whatever the political circumstances prevailing at the time of its conclusion -- was treated
by Hungary as valid and in force until the date declared for its termination in May 1992. As
can be seen from the material before the Court, a great many studies of a scientific and
technical nature had been conducted at an earlier time, both by Hungary and by
Czechoslovakia. Hungary was, then, presumably aware of the situation as then known, when
it assumed its obligations under the Treaty. Hungary contended before the Court that those
studies had been inadequate and that the state of knowledge at that time was not such as to
make possible a complete evaluation of the ecological implications of the Gabcikovo-
Nagymaros Project. It is nonetheless the case that although the principal object of the 1977
Treaty was the construction of a System of Locks for the production of electricity,
improvement of navigation on the Danube and protection against flooding, the need to ensure
the protection of the environment had not escaped the parties, as can be seen from Articles 15,
19 and 20 of the Treaty.

What is more, the Court cannot fail to note the positions taken by Hungary after the entry into
force of the 1977 Treaty. In 1983, Hungary asked that the works under the Treaty should go
forward more slowly, [p46] for reasons that were essentially economic but also, subsidiarily,
related to ecological concerns. In 1989, when, according to Hungary itself, the state of
scientific knowledge had undergone a significant development, it asked for the works to be
speeded up, and then decided, three months later, to suspend them and subsequently to
abandon them. The Court is not however unaware that profound changes were taking place in
Hungary in 1989, and that, during that transitory phase, it might have been more than usually
difficult to co-ordinate the different points of view prevailing from time to time.

The Court infers from all these elements that, in the present case, even if it had been
established that there was, in 1989, a state of necessity linked to the performance of the 1977
Treaty, Hungary would not have been permitted to rely upon that state of necessity in order to
justify its failure to comply with its treaty obligations, as it had helped, by act or omission to
bring it about.

58. It follows that the Court has no need to consider whether Hungary, by proceeding as it did
in 1989, "seriously impair[ed] an essential interest" of Czechoslovakia, within the meaning of
the aforementioned Article 33 of the Draft of the International Law Commission -- a finding
which does not in any way prejudge the damage Czechoslovakia claims to have suffered on
account of the position taken by Hungary.

Nor does the Court need to examine the argument put forward by Hungary, according to
which certain breaches of Articles 15 and 19 of the 1977 Treaty, committed by
Czechoslovakia even before 1989, contributed to the purported state of necessity; and neither
does it have to reach a decision on the argument advanced by Slovakia, according to which
Hungary breached the provisions of Article 27 of the Treaty, in 1989, by taking unilateral
measures without having previously had recourse to the machinery of dispute settlement for
which that Article provides.

**

59. In the light of the conclusions reached above, the Court, in reply to the question put to it in
Article 2, paragraph 1 (a), of the Special Agreement (see paragraph 27), finds that Hungary
was not entitled to suspend and subsequently abandon, in 1989, the works on the Nagymaros
Project and on the part of the Gabcikovo Project for which the 1977 Treaty and related
instruments attributed responsibility to it.

***

60. By the terms of Article 2, paragraph 1 (b), of the Special Agreement, the Court is asked in
the second place to decide

"(b)whether the Czech and Slovak Federal Republic was entitled to proceed, in November
1991, to the 'provisional solution' [p47] and to put into operation from October 1992 this
system, described in the Report of the Working Group of Independent Experts of the
Commission of the European Communities, the Republic of Hungary and the Czech and
Slovak Federal Republic dated 23 November 1992 (damming up of the Danube at river
kilometre 1851.7 on Czechoslovak territory and resulting consequences on water and
navigation course)".

61. The Court will recall that, as soon as Hungary suspended the works at Nagymaros on 13
May 1989 and extended that suspension to certain works to be carried out at Dunakiliti,
Czechoslovakia informed Hungary that it would feel compelled to take unilateral measures if
Hungary were to persist in its refusal to resume the works. This was inter alia expressed as
follows in Czechoslovakia's Note Verbale of 30 October 1989 to which reference is made in
paragraph 37 above:

"Should the Republic of Hungary fail to meet its liabilities and continue unilaterally to breach
the Treaty and related legal documents then the Czechoslovak party will be forced to
commence a provisional, substitute project on the territory of the Czechoslovak Socialist
Republic in order to prevent further losses. Such a provisional project would entail directing
as much water into the Gabcikovo dam as agreed in the Joint Construction Plan."

As the Court has already indicated (see paragraph 23 above), various alternative solutions
were contemplated by Czechoslovakia. In September 1990, the Hungarian authorities were
advised of seven hypothetical alternatives defined by the firm of Hydroconsult of Bratislava.
All of those solutions implied an agreement between the parties, with the exception of one
variant, subsequently known as "Variant C", which was presented as a provisional solution
which could be brought about without Hungarian co-operation. Other contacts between the
parties took place, without leading to a settlement of the dispute. In March 1991, Hungary
acquired information according to which perceptible progress had been made in finalizing the
planning of Variant C; it immediately gave expression to the concern this caused.

62. Inter-governmental negotiation meetings were held on 22 April and 15 July 1991.

On 22 April 1991, Hungary proposed the suspension, until September 1993, of all the works
begun on the basis of the 1977 Treaty, on the understanding that the parties undertook to
abstain from any unilateral action, and that joint studies would be carried out in the interval.
Czechoslovakia maintained its previous position according to which the studies contemplated
should take place within the framework of the 1977 Treaty and without any suspension of the
works.

On 15 July 1991, Czechoslovakia confirmed its intention of putting the [p48] Gabcikovo
power plant into service and indicated that the available data enabled the effects of four
possible scenarios to be assessed, each of them requiring the co-operation of the two
Governments. At the same time, it proposed the setting up of a tripartite committee of experts
(Hungary, Czechoslovakia, European Communities) which would help in the search for
technical solutions to the problems arising from the entry into operation of the Gabcikovo
sector. Hungary, for its part, took the view that

"In the case of a total lack of understanding the so-called C variation or 'theoretical
opportunity' suggested by the Czecho-Slovak party as a unilateral solution would be such a
grave transgression of Hungarian territorial integrity and International Law for which there is
no precedent even in the practices of the formerly socialist countries for the past 30 years";

it further proposed the setting up of a bilateral committee for the assessment of environmental
consequences, subject to work on Czechoslovak territory being suspended.

63. By a letter dated 24 July 1991, the Government of Hungary communicated the following
message to the Prime Minister of Slovakia:

"Hungarian public opinion and the Hungarian Government anxiously and attentively follows
the [Czechoslovakian] press reports of the unilateral steps of the Government of the Slovak
Republic in connection with the barrage system.

The preparatory works for diverting the water of the Danube near the Dunakiliti dam through
unilaterally are also alarming. These steps are contrary to the 1977 Treaty and to the good
relationship between our nations."

On 30 July 1991 the Slovak Prime Minister informed the Hungarian Prime Minister of

"the decision of the Slovak Government and of the Czech and Slovak Federal Government to
continue work on the Gabcikovo power plant, as a provisional solution, which is aimed at the
commencement of operations on the territory of the Czech and Slovak Federal Republic".

On the same day, the Government of Hungary protested, by a Note Verbale, against the filling
of the headrace canal by the Czechoslovak construction company, by pumping water from the
Danube.

By a letter dated 9 August 1991 and addressed to the Prime Minister of Slovakia, the
Hungarian authorities strenuously protested against "any unilateral step that would be in
contradiction with the interests of our [two] nations and international law" and indicated that
they considered it "very important [to] receive information as early as possible on the [p49]
details of the provisional solution". For its part, Czechoslovakia, in a Note Verbale dated 27
August 1991, rejected the argument of Hungary that the continuation of the works under those
circumstances constituted a violation of international law, and made the following proposal:

"Provided the Hungarian side submits a concrete technical solution aimed at putting into
operation the Gabcikovo system of locks and a solution of the system of locks based on the
1977 Treaty in force and the treaty documents related to it, the Czechoslovak side is prepared
to implement the mutually agreed solution."

64. The construction permit for Variant C was issued on 30 October 1991. In November 1991
construction of a dam started at Cunovo, where both banks of the Danube are on
Czechoslovak (now Slovak) territory.

In the course of a new inter-governmental negotiation meeting, on 2 December 1991, the

parties agreed to entrust the task of studying the whole of the question of the Gabcikovo-
Nagymaros Project to a Joint Expert Committee which Hungary agreed should be
complemented with an expert from the European Communities. However whereas, for
Hungary, the work of that Committee would have been meaningless if Czechoslovakia
continued construction of Variant C, for Czechoslovakia, the suspension of the construction,
even on a temporary basis, was unacceptable.

That meeting was followed by a large number of exchanges of letters between the parties and
various meetings between their representatives at the end of 1991 and early in 1992. On 23
January 1992, Czechoslovakia expressed its readiness "to stop work on the provisional
solution and continue the construction upon mutual agreement" if the tripartite committee of
experts whose constitution it proposed, and the results of the test operation of the Gabcikovo
part, were to "confirm that negative ecological effects exceed its benefits". However, the
positions of the parties were by then comprehensively defined, and would scarcely develop
any further. Hungary considered, as it indicated in a Note Verbale of 14 February 1992, that
Variant C was in contravention

"of [the Treaty of 1977] . . . and the convention ratified in 1976 regarding the water
management of boundary waters.
………………………………………………………………………………………………
with the principles of sovereignty, territorial integrity, with the inviolability of State borders,
as well as with the general customary norms on international rivers and the spirit of the 1948
Belgrade Danube Convention";

and the suspension of the implementation of Variant C was, in its view, a prerequisite. As for
Czechoslovakia, it took the view that recourse to Variant C had been rendered inevitable, both
for economic and ecologi-[p50]cal as well as navigational reasons, because of the unlawful
suspension and abandonment by Hungary of the works for which provision was made in the
1977 Treaty. Any negotiation had, in its view, to be conducted within the framework of the
Treaty and without the implementation of Variant C -- described as "provisional" -- being
called into question.

65. On 5 August 1992, the Czechoslovak representative to the Danube Commission informed
it that "work on the severance cutting through of the Danube's flow will begin on 15 October
1992 at the 1,851.759-kilometre line" and indicated the measures that would be taken at the
time of the "severance". The Hungarian representative on the Commission protested on 17
August 1992, and called for additional explanations.

During the autumn of 1992, the implementation of Variant C was stepped up. The operations
involved in damming the Danube at Cunovo had been scheduled by Czechoslovakia to take
place during the second half of October 1992, at a time when the waters of the river are
generally at their lowest level. On the initiative of the Commission of the European
Communities, trilateral negotiations took place in Brussels on 21 and 22 October 1992, with a
view to setting up a committee of experts and defining its terms of reference. On that date, the
first phase of the operations leading to the damming of the Danube (the reinforcement of the
riverbed and the narrowing of the principal channel) had been completed. The closure of the
bed was begun on 23 October 1992 and the construction of the actual dam continued from 24
to 27 October 1992: a pontoon bridge was built over the Danube on Czechoslovak territory
using river barges, large stones were thrown into the riverbed and reinforced with concrete,
while 80 to 90 percent of the waters of the Danube were directed into the canal designed to
supply the Gabcikovo power plant. The implementation of Variant C did not, however, come
to an end with the diversion of the waters, as there still remained outstanding both
reinforcement work on the dam and the building of certain auxiliary structures.

The Court has already referred in paragraph 24 above to the meeting held in London on 28
October 1992 under the auspices of the European Communities, in the course of which the
parties to the negotiations agreed, inter alia, to entrust a tripartite Working Group composed
of independent experts (i.e., four experts designated by the European Commission, one
designated by Hungary and another by Czechoslovakia) with the task of reviewing the
situation created by the implementation of Variant C and making proposals as to urgent
measures to adopt. After having worked for one week in Bratislava and one week in
Budapest, the Working Group filed its report on 23 November 1992.

66. A summary description of the constituent elements of Variant C appears at paragraph 23

of the present Judgment. For the purposes of the question put to the Court, the official
description that should be adopted is, according to Article 2, paragraph 1 (b), of the Special
Agreement, the one given in the aforementioned report of the Working Group [p51] of
independent experts, and it should be emphasized that, according to the Special Agreement,
"Variant C" must be taken to include the consequences "on water and navigation course" of
the dam closing off the bed of the Danube.

In the section headed "Variant C Structures and Status of Ongoing Work", one finds, in the
report of the Working Group, the following passage:

"In both countries the original structures for the Gabcikovo scheme are completed except for
the closure of the Danube river at Dunakiliti and the

(1) Completion of the hydropower station (installation and testing of turbines) at Gabcikovo.

Variant C consists of a complex of structures, located in Czecho-Slovakia . . . The

construction of these are planned for two phases. The structures include . . . :

(2) By-pass weir controlling the flow into the river Danube.

(3) Dam closing the Danubian river bed.

(4) Floodplain weir (weir in the inundation).

(5) Intake structure for the Mosoni Danube.

(6) Intake structure in the power canal.

(7) Earth barrages/dykes connecting structures.

(8) Ship lock for smaller ships (15 m x 80 m).

(9) Spillway weir.

(10) Hydropower station.

The construction of the structures 1-7 are included in Phase 1, while the remaining 8-10 are a
part of Phase 2 scheduled for construction 1993-1995."

**

67. Czechoslovakia had maintained that proceeding to Variant C and putting it into operation
did not constitute internationally wrongful acts; Slovakia adopted this argument. During the
proceedings before the Court Slovakia contended that Hungary's decision to suspend and
subsequently abandon the construction of works at Dunakiliti had made it impossible for
Czechoslovakia to carry out the works as initially contemplated by the 1977 Treaty and that
the latter was therefore entitled to proceed with a solution which was as close to the original
Project as possible. Slovakia invoked what it described as a "principle of approximate
application" to justify the construction and operation of Variant C. It explained that this was
the only possibility remaining to it "of fulfilling not only the purposes of the 1977 Treaty, but
the continuing obligation to implement it in good faith".
68. Slovakia also maintained that Czechoslovakia was under a duty to mitigate the damage
resulting from Hungary's unlawful actions. It claimed [p52] that a State which is confronted
with a wrongful act of another State is under an obligation to minimize its losses and, thereby,
the damages claimable against the wrong-doing State. It argued furthermore that "Mitigation
of damages is also an aspect of the performance of obligations in good faith." For Slovakia,
these damages would have been immense in the present case, given the investments made and
the additional economic and environmental prejudice which would have resulted from the
failure to complete the works at Dunakiliti/Gabcikovo and to put the system into operation.
For this reason, Czechoslovakia was not only entitled, but even obliged, to implement Variant
C.

69. Although Slovakia maintained that Czechoslovakia's conduct was lawful, it argued in the
alternative that, even were the Court to find otherwise, the putting into operation of Variant C
could still be justified as a countermeasure.

70. Hungary for its part contended that Variant C was a material breach of the 1977 Treaty. It
considered that Variant C also violated Czechoslovakia's obligations under other treaties, in
particular the Convention of 31 May 1976 on the Regulation of Water Management Issues of
Boundary Waters concluded at Budapest, and its obligations under general international law.

71. Hungary contended that Slovakia's arguments rested on an erroneous presentation of the
facts and the law. Hungary denied, inter alia, having committed the slightest violation of its
treaty obligations which could have justified the putting into operation of Variant C. It
considered that "no such rule" of "approximate application" of a treaty exists in international
law; as to the argument derived from "mitigation of damage[s]", it claimed that this has to do
with the quantification of loss, and could not serve to excuse conduct which is substantively
unlawful. Hungary furthermore stated that Variant C did not satisfy the conditions required by
international law for countermeasures, in particular the condition of proportionality.

**

72. Before dealing with the arguments advanced by the Parties, the Court wishes to make
clear that it is aware of the serious problems with which Czechoslovakia was confronted as a
result of Hungary's decision to relinquish most of the construction of the System of Locks for
which it was responsible by virtue of the 1977 Treaty. Vast investments had been made, the
construction at Gabcikovo was all but finished, the bypass canal was completed, and Hungary
itself, in 1991, had duly fulfilled its obligations under the Treaty in this respect in completing
work on the tailrace canal. It emerges from the report, dated 31 October 1992, of the tripartite
fact-finding mission the Court has referred to in paragraph 24 of the present Judgment, that
not using the system would have [p53] led to considerable financial losses, and that it could
have given rise to serious problems for the environment.

73. Czechoslovakia repeatedly denounced Hungary's suspension and abandonment of works

as a fundamental breach of the 1977 Treaty and consequently could have invoked this breach
as a ground for terminating the Treaty; but this would not have brought the Project any nearer
to completion. It therefore chose to insist on the implementation of the Treaty by Hungary,
and on many occasions called upon the latter to resume performance of its obligations under
the Treaty.

When Hungary steadfastly refused to do so -- although it had expressed its willingness to pay
compensation for damage incurred by Czechoslovakia -- and when negotiations stalled owing
to the diametrically opposed positions of the parties, Czechoslovakia decided to put the
Gabcikovo system into operation unilaterally, exclusively under its own control and for its
own benefit.

74. That decision went through various stages and, in the Special Agreement, the Parties
asked the Court to decide whether Czechoslovakia "was entitled to proceed, in November
1991" to Variant C, and "to put [it] into operation from October 1992".

75. With a view to justifying those actions, Slovakia invoked what it described as "the
principle of approximate application", expressed by Judge Sir Hersch Lauterpacht in the
following terms:

"It is a sound principle of law that whenever a legal instrument of continuing validity cannot
be applied literally owing to the conduct of one of the parties, it must, without allowing that
party to take advantage of its own conduct, be applied in a way approximating most closely to
its primary object. To do that is to interpret and to give effect to the instrument -- not to
change it." (Admissibility of Hearings of Petitioners by the Committee on South West Africa,
separate opinion of Sir Hersch Lauterpacht, I.C.J. Reports 1956, p. 46.)

It claimed that this is a principle of international law and a general principle of law.

76. It is not necessary for the Court to determine whether there is a principle of international
law or a general principle of law of "approximate application" because, even if such a
principle existed, it could by definition only be employed within the limits of the treaty in
question. In the view of the Court, Variant C does not meet that cardinal condition with regard
to the 1977 Treaty.

77. As the Court has already observed, the basic characteristic of the 1977 Treaty is,
according to Article 1, to provide for the construction of the Gabcikovo-Nagymaros System
of Locks as a joint investment constituting a single and indivisible operational system of
works. This element is equally reflected in Articles 8 and 10 of the Treaty providing for joint
ownership of the most important works of the Gabcikovo-Nagymaros project and for the
operation of this joint property as a co-ordinated single unit. By definition all this could not be
carried [p54] out by unilateral action. In spite of having a certain external physical similarity
with the original Project, Variant C thus differed sharply from it in its legal characteristics.

78. Moreover, in practice, the operation of Variant C led Czechoslovakia to appropriate,

essentially for its use and benefit, between 80 and 90 per cent of the waters of the Danube
before returning them to the main bed of the river, despite the fact that the Danube is not only
a shared international watercourse but also an international boundary river.

Czechoslovakia submitted that Variant C was essentially no more than what Hungary had
already agreed to and that the only modifications made were those which had become
necessary by virtue of Hungary's decision not to implement its treaty obligations. It is true that
Hungary, in concluding the 1977 Treaty, had agreed to the damming of the Danube and the
diversion of its waters into the bypass canal. But it was only in the context of a joint operation
and a sharing of
its benefits that Hungary had given its consent. The suspension and withdrawal of that consent
constituted a violation of Hungary's legal obligations, demonstrating, as it did, the refusal by
Hungary of joint operation; but that cannot mean that Hungary forfeited its basic right to an
equitable and reasonable sharing of the resources of an international watercourse.

The Court accordingly concludes that Czechoslovakia, in putting Variant C into operation,
was not applying the 1977 Treaty but, on the contrary, violated certain of its express
provisions, and, in so doing, committed an internationally wrongful act.

79. The Court notes that between November 1991 and October 1992, Czechoslovakia
confined itself to the execution, on its own territory, of the works which were necessary for
the implementation of 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 to be
taken. For as long as the Danube had not been unilaterally dammed, Variant C had not in fact
been applied.

Such a situation is not unusual in international law or, for that matter, in domestic law. A
wrongful act or offence is frequently preceded by preparatory actions which are not to be
confused with the act or offence itself. It is as well to distinguish between the actual
commission of a wrongful act (whether instantaneous or continuous) and the conduct prior to
that act which is of a preparatory character and which "does not qualify as a wrongful act"
(see for example the Commentary on Article 41 of the Draft Articles on State Responsibility,
"Report of the International Law Commission on the work of its forty-eighth session, 6 May-
26 July 1996", Official Records of the General Assembly, Fifty-first Session, Supplement No.
10 (A/51/10), p. 141 and Yearbook of the International Law Commission, 1993, Vol. II, Part
2, p. 57, para. 14).

*[p55]

80. Slovakia also maintained that it was acting under a duty to mitigate damages when it
carried out Variant C. It stated that "It is a general principle of international law that a party
injured by the non-performance of another contract party must seek to mitigate the damage he
has sustained."

It would follow from such a principle that an injured State which has failed to take the
necessary measures to limit the damage sustained would not be entitled to claim
compensation for that damage which could have been avoided. While this principle might
thus provide a basis for the calculation of damages, it could not, on the other hand, justify an
otherwise wrongful act.

81. Since the Court has found that the putting into operation of Variant C constituted an
internationally wrongful act, the duty to mitigate damage invoked by Slovakia does not need
to be examined further.

82. Although it did not invoke the plea of countermeasures as a primary argument, since it did
not consider Variant C to be unlawful, Slovakia stated that "Variant C could be presented as a
justified countermeasure to Hungary's illegal acts".

The Court has concluded, in paragraph 78 above, that Czechoslovakia committed an

internationally wrongful act in putting Variant C into operation. Thus, it now has to determine
whether such wrongfulness may be precluded on the ground that the measure so adopted was
in response to Hungary's prior failure to comply with its obligations under international law.

83. In order to be justifiable, a countermeasure must meet certain conditions (see Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)
Merits, Judgment, I.C.J. Reports 1986, p. 127, para. 249. See also Arbitral Award of 9
December 1978 in the case concerning the Air Service Agreement of 27 March 1946 between
the United States of America and France, United Nations, Reports of International Arbitral
Awards (RIAA), Vol. XVIII, pp. 443 et seq.; also Articles 47 to 50 of the Draft Articles on
State Responsibility adopted by the International Law Commission on first reading, "Report
of the International Law Commission on the work of its forty-eighth session, 6 May-26 July
1996", Official Records of the General Assembly, Fifty-first Session, Supplement No. 10
(A/51/10), pp. 144-145.)

In the first place it must be taken in response to a previous international wrongful act of
another State and must be directed against that State. Although not primarily presented as a
countermeasure, it is clear that Variant C was a response to Hungary's suspension and
abandon-[p56]ment of works and that it was directed against that State; and it is equally clear,
in the Court's view, that Hungary's actions were internationally wrongful.

84. Secondly, the injured State must have called upon the State committing the wrongful act
to discontinue its wrongful conduct or to make reparation for it. It is clear from the facts of the
case, as recalled above by the Court (see paragraphs 61 et seq.), that Czechoslovakia
requested Hungary to resume the performance of its treaty obligations on many occasions.

85. In the view of the Court, an important consideration is that the effects of a countermeasure
must be commensurate with the injury suffered, taking account of the rights in question.

In 1929, the Permanent Court of International Justice, with regard to navigation on the River
Oder, stated as follows:
"[the] community of interest in a navigable river becomes the basis of a common legal right,
the essential features of which are the perfect equality of all riparian States in the user of the
whole course of the river and the exclusion of any preferential privilege of any one riparian
State in relation to the others" (Territorial Jurisdiction of the International Commission of the
River Oder, Judgment No. 16, 1929, P.C.I.J., Series A, No. 23, p. 27).

Modern development of international law has strengthened this principle for non-navigational
uses of international watercourses as well, as evidenced by the adoption of the Convention of
21 May 1997 on the Law of the Non-Navigational Uses of International Watercourses by the
United Nations General Assembly.

The Court considers that Czechoslovakia, by unilaterally assuming control of a shared

resource, and thereby depriving Hungary of its right to an equitable and reasonable share of
the natural resources of the Danube -- with the continuing effects of the diversion of these
waters on the ecology of the riparian area of the Szigetkoz -- failed to respect the
proportionality which is required by international law.

86. Moreover, as the Court has already pointed out (see paragraph 78), the fact that Hungary
had agreed in the context of the original Project to the diversion of the Danube (and, in the
Joint Contractual Plan, to a provisional measure of withdrawal of water from the Danube)
cannot be understood as having authorized Czechoslovakia to proceed with a unilateral
diversion of this magnitude without Hungary's consent.

87. The Court thus considers that the diversion of the Danube carried out by Czechoslovakia
was not a lawful countermeasure because it was not proportionate. It is therefore not required
to pass upon one other condition for the lawfulness of a countermeasure, namely that its
purpose must be to induce the wrongdoing State to comply with its oblige-[p57]tions under
international law, and that the measure must therefore be reversible.

**

88. In the light of the conclusions reached above, the Court, in reply to the question put to it in
Article 2, paragraph 1 (b), of the Special Agreement (see paragraph 60), finds that
Czechoslovakia was entitled to proceed, in November 1991, to Variant C in so far as it then
confined itself to undertaking works which did not predetermine the final decision to be taken
by it. On the other hand, Czechoslovakia was not entitled to put that Variant into operation
from October 1992.

***

89. By the terms of Article 2, paragraph 1 (c), of the Special Agreement, the Court is asked,
thirdly, to determine
"what are the legal effects of the notification, on 19 May 1992, of the termination of the
Treaty by the Republic of Hungary".

The Court notes that it has been asked to determine what are the legal effects of the
notification given on 19 May 1992 of the termination of the Treaty. It will consequently
confine itself to replying to this question.

90. The Court will recall that, by early 1992, the respective parties to the 1977 Treaty had
made clear their positions with regard to the recourse by Czechoslovakia to Variant C.
Hungary in a Note Verbale of 14 February 1992 had made clear its view that Variant C was a
contravention of the 1977 Treaty (see paragraph 64 above); Czechoslovakia insisted on the
implementation of Variant C as a condition for further negotiation. On 26 February 1992, in a
letter to his Czechoslovak counterpart, the Prime Minister of Hungary described the
impending diversion of the Danube as "a serious breach of international law" and stated that,
unless work was suspended while further enquiries took place, "the Hungarian Government
[would] have no choice but to respond to this situation of necessity by terminating the 1977
inter-State Treaty". In a Note Verbale dated 18 March 1992, Czechoslovakia reaffirmed that,
while it was prepared to continue negotiations "on every level", it could not agree "to stop all
work on the provisional solution".

On 24 March 1992, the Hungarian Parliament passed a resolution authorizing the Government
to terminate the 1977 Treaty if Czechoslovakia did not stop the works by 30 April 1992. On
13 April 1992, the Vice-President of the Commission of the European Communities wrote to
both parties confirming the willingness of the Commission to chair a committee of
independent experts including representatives of the two countries, in order to assist the two
Governments in identifying a mutu-[p58]ally acceptable solution. Commission involvement
would depend on each Government not taking "any steps . . . which would prejudice possible
actions to be undertaken on the basis of the report's findings". The Czechoslovak Prime
Minister stated in a letter to the Hungarian Prime Minister dated 23 April 1992, that his
Government continued to be interested in the establishment of the proposed committee
"without any preliminary conditions"; criticizing Hungary's approach, he refused to suspend
work on the provisional solution, but added, "in my opinion, there is still time, until the
damming of the Danube (i.e., until October 31, 1992), for resolving disputed questions on the
basis of agreement of both States".

On 7 May 1992, Hungary, in the very resolution in which it decided on the termination of the
Treaty, made a proposal, this time to the Slovak Prime Minister, for a six-month suspension
of work on Variant C. The Slovak Prime Minister replied that the Slovak Government
remained ready to negotiate, but considered preconditions "inappropriate".

91. On 19 May 1992, the Hungarian Government transmitted to the Czechoslovak

Government a Declaration notifying it of the termination by Hungary of the 1977 Treaty as of
25 May 1992. In a letter of the same date from the Hungarian Prime Minister to the
Czechoslovak Prime Minister, the immediate cause for termination was specified to be
Czechoslovakia's refusal, expressed in its letter of 23 April 1992, to suspend the work on
Variant C during mediation efforts of the Commission of the European Communities. In its
Declaration, Hungary stated that it could not accept the deleterious effects for the
environment and the conservation of nature of the implementation of Variant C which would
be practically equivalent to the dangers caused by the realization of the original Project. It
added that Variant C infringed numerous international agreements and violated the territorial
integrity of the Hungarian State by diverting the natural course of the Danube.

**

92. During the proceedings, Hungary presented five arguments in support of the lawfulness,
and thus the effectiveness, of its notification of termination. These were the existence of a
state of necessity; the impossibility of performance of the Treaty; the occurrence of a
fundamental change of circumstances; the material breach of the Treaty by Czechoslovakia;
and, finally, the development of new norms of international environmental law. Slovakia
contested each of these grounds.

93. On the first point, Hungary stated that, as Czechoslovakia had "remained inflexible" and
continued with its implementation of Variant C, "a temporary state of necessity eventually
became permanent, justifying termination of the 1977 Treaty".

Slovakia, for its part, denied that a state of necessity existed on the [p59] basis of what it saw
as the scientific facts; and argued that even if such a state of necessity had existed, this would
not give rise to a right to terminate the Treaty under the Vienna Convention of 1969 on the
Law of Treaties.

94. Hungary's second argument relied on the terms of Article 61 of the Vienna Convention,
which is worded as follows:

"Article 61

Supervening impossibility of performance

1. A party may invoke the impossibility of performing a treaty as a ground for terminating or
withdrawing from it if the impossibility results from the permanent disappearance or
destruction of an object indispensable for the execution of the treaty. If the impossibility is
temporary, it may be invoked only as a ground for suspending the operation of the treaty.

2. Impossibility of performance may not be invoked by a party as a ground for terminating,

withdrawing from or suspending the operation of a treaty if the impossibility is the result of a
breach by that party either of an obligation under the treaty or of any other international
obligation owed to any other party to the treaty."

Hungary declared that it could not be "obliged to fulfil a practically impossible task, namely
to construct a barrage system on its own territory that would cause irreparable environmental
damage". It concluded that

"By May 1992 the essential object of the Treaty -- an economic joint investment which was
consistent with environmental protection and which was operated by the two parties jointly --
had permanently disappeared, and the Treaty had thus become impossible to perform."

In Hungary's view, the "object indispensable for the execution of the treaty", whose
disappearance or destruction was required by Article 61 of the Vienna Convention, did not
have to be a physical object, but could also include, in the words of the International Law
Commission, "a legal situation which was the raison d'etre of the rights and obligations".

Slovakia claimed that Article 61 was the only basis for invoking impossibility of performance
as a ground for termination, that paragraph 1 of that Article clearly contemplated physical
"disappearance or destruction" of the object in question, and that, in any event, paragraph 2
precluded the invocation of impossibility "if the impossibility is the result of a breach by that
party . . . of an obligation under the treaty".

95. As to "fundamental change of circumstances", Hungary relied on Article 62 of the Vienna

Convention on the Law of Treaties which states as follows:

"Article 62

Fundamental change of circumstances

1. A fundamental change of circumstances which has occurred with regard to those existing at
the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be
invoked as a ground for terminating or withdrawing from the treaty unless:

(a) the existence of those circumstances constituted an essential basis of the consent of the
parties to be bound by the treaty; and

(b) the effect of the change is radically to transform the extent of obligations still to be
performed under the treaty.

2. A fundamental change of circumstances may not be invoked as a ground for terminating or

withdrawing from a treaty:

(a) if the treaty establishes a boundary; or

(b) if the fundamental change is the result of a breach by the party invoking it either of an
obligation under the treaty or of any other international obligation owed to any other party to
the treaty.

3. If, under the foregoing paragraphs, a party may invoke a fundamental change of
circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the
change as a ground for suspending the operation of the treaty."

Hungary identified a number of "substantive elements" present at the conclusion of the 1977
Treaty which it said had changed fundamentally by the date of notification of termination.
These included the notion of "socialist integration", for which the Treaty had originally been a
"vehicle", but which subsequently disappeared; the "single and indivisible operational
system", which was to be replaced by a unilateral scheme; the fact that the basis of the
planned joint investment had been overturned by the sudden emergence of both States into a
market economy; the attitude of Czechoslovakia which had turned the "framework treaty" into
an "immutable norm"; and, finally, the transformation of a treaty consistent with
environmental protection into "a prescription for environmental disaster".

Slovakia, for its part, contended that the changes identified by Hungary had not altered the
nature of the obligations under the Treaty from those originally undertaken, so that no
entitlement to terminate it arose from them.

96. Hungary further argued that termination of the Treaty was justified by Czechoslovakia's
material breaches of the Treaty, and in this regard it invoked Article 60 of the Vienna
Convention on the Law of Treaties, which provides:[p61]

"Article 60

Termination or suspension of the operation of a treaty as a consequence of its breach

1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the
breach as a ground for terminating the treaty or suspending its operation in whole or in part.

2. A material breach of a multilateral treaty by one of the parties entitles:

(a) the other parties by unanimous agreement to suspend the operation of the treaty in whole
or in part or to terminate it either:

(i) in the relations between themselves and the defaulting State, or

(ii) as between all the parties;

(b) a party specially affected by the breach to invoke it as a ground for suspending the
operation of the treaty in whole or in part in the relations between itself and the defaulting
State;

(c) any party other than the defaulting State to invoke the breach as a ground for suspending
the operation of the treaty in whole or in part with respect to itself if the treaty is of such a
character that a material breach of its provisions by one party radically changes the position of
every party with respect to the further performance of its obligations under the treaty.

3. A material breach of a treaty, for the purposes of this article, consists in:

(a) a repudiation of the treaty not sanctioned by the present Convention; or

(b) the violation of a provision essential to the accomplishment of the object or purpose of the
treaty.

4. The foregoing paragraphs are without prejudice to any provision in the treaty applicable in
the event of a breach.

5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person
contained in treaties of a humanitarian character, in particular to provisions prohibiting any
form of reprisals against persons protected by such treaties."

Hungary claimed in particular that Czechoslovakia violated the 1977 Treaty by proceeding to
the construction and putting into operation of Variant C, as well as failing to comply with its
obligations under Articles 15 and 19 of the Treaty. Hungary further maintained that
Czechoslovakia had breached other international conventions (among them the Convention of
31 May 1976 on the Regulation of Water Management Issues of Boundary Waters) and
general international law. [p62]

Slovakia denied that there had been, on the part of Czechoslovakia or on its part, any material
breach of the obligations to protect water quality and nature, and claimed that Variant C, far
from being a breach, was devised as "the best possible approximate application" of the Treaty.
It furthermore denied that Czechoslovakia had acted in breach of other international
conventions or general international law.

97. Finally, Hungary argued that subsequently imposed requirements of international law in
relation to the protection of the environment precluded performance of the Treaty. The
previously existing obligation not to cause substantive damage to the territory of another State
had, Hungary claimed, evolved into an erga omnes obligation of prevention of damage
pursuant to the "precautionary principle". On this basis, Hungary argued, its termination was
"forced by the other party's refusal to suspend work on Variant C".

Slovakia argued, in reply, that none of the intervening developments in environmental law
gave rise to norms of jus cogens that would override the Treaty. Further, it contended that the
claim by Hungary to be entitled to take action could not in any event serve as legal
justification for termination of the Treaty under the law of treaties, but belonged rather "to the
language of self-help or reprisals".

**

98. The question, as formulated in Article 2, paragraph 1 (c), of the Special Agreement, deals
with treaty law since the Court is asked to determine what the legal effects are of the
notification of termination of the Treaty. The question is whether Hungary's notification of 19
May 1992 brought the 1977 Treaty to an end, or whether it did not meet the requirements of
international law, with the consequence that it did not terminate the Treaty.

99. The Court has referred earlier to the question of the applicability to the present case of the
Vienna Convention of 1969 on the Law of Treaties. The Vienna Convention is not directly
applicable to the 1977 Treaty inasmuch as both States ratified that Convention only after the
Treaty's conclusion. Consequently only those rules which are declaratory of customary law
are applicable to the 1977 Treaty. As the Court has already stated above (see paragraph 46),
this is the case, in many respects, with Articles 60 to 62 of the Vienna Convention, relating to
termination or suspension of the operation of a treaty. On this, the Parties, too, were broadly
in agreement.

100. The 1977 Treaty does not contain any provision regarding its termination. Nor is there
any indication that the parties intended to admit the possibility of denunciation or withdrawal.
On the contrary, the Treaty establishes a long-standing and durable regime of joint investment
[p63] and joint operation. Consequently, the parties not having agreed otherwise, the Treaty
could be terminated only on the limited grounds enumerated in the Vienna Convention.

101. The Court will now turn to the first ground advanced by Hungary, that of the state of
necessity. In this respect, the Court will merely observe that, even if a state of necessity is
found to exist, it is not a ground for the termination of a treaty. It may only be invoked to
exonerate from its responsibility a State which has failed to implement a treaty. Even if found
justified, it does not terminate a Treaty; the Treaty may be ineffective as long as the condition
of necessity continues to exist; it may in fact be dormant, but -- unless the parties by mutual
agreement terminate the Treaty -- it continues to exist. As soon as the state of necessity ceases
to exist, the duty to comply with treaty obligations revives.

102. Hungary also relied on the principle of the impossibility of performance as reflected in
Article 61 of the Vienna Convention on the Law of Treaties. Hungary's interpretation of the
wording of Article 61 is, however, not in conformity with the terms of that Article, nor with
the intentions of the Diplomatic Conference which adopted the Convention. Article 61,
paragraph 1, requires the "permanent disappearance or destruction of an object indispensable
for the execution" of the treaty to justify the termination of a treaty on grounds of
impossibility of performance. During the conference, a proposal was made to extend the
scope of the article by including in it cases such as the impossibility to make certain payments
because of serious financial difficulties (Official Records of the United Nations Conference
on the Law of Treaties, First Session, Vienna, 26 March-24 May 1968, Doc. A/CONF.39/11,
Summary records of the plenary meetings and of the meetings of the Committee of the
Whole, 62nd Meeting of the Committee of the Whole, pp. 361-365). Although it was
recognized that such situations could lead to a preclusion of the wrongfulness of non-
performance by a party of its treaty obligations, the participating States were not prepared to
consider such situations to be a ground for terminating or suspending a treaty, and preferred to
limit themselves to a narrower concept.

103. Hungary contended that the essential object of the Treaty -- an economic joint
investment which was consistent with environmental protection and which was operated by
the two contracting parties jointly -- had permanently disappeared and that the Treaty had thus
become impossible to perform. It is not necessary for the Court to determine whether the term
"object" in Article 61 can also be understood to embrace a legal regime as in any event, even
if that were the case, it [p64] would have to conclude that in this instance that regime had not
definitively ceased to exist. The 1977 Treaty -- and in particular its Articles 15, 19 and 20 --
actually made available to the parties the necessary means to proceed at any time, by
negotiation, to the required readjustments between economic imperatives and ecological
imperatives. The Court would add that, if the joint exploitation of the investment was no
longer possible, this was originally because Hungary did not carry out most of the works for
which it was responsible under the 1977 Treaty; Article 61, paragraph 2, of the Vienna
Convention expressly provides that impossibility of performance may not be invoked for the
termination of a treaty by a party to that treaty when it results from that party's own breach of
an obligation flowing from that treaty.

104. Hungary further argued that it was entitled to invoke a number of events which,
cumulatively, would have constituted a fundamental change of circumstances. In this respect
it specified profound changes of a political nature, the Project's diminishing economic
viability, the progress of environmental knowledge and the development of new norms and
prescriptions of international environmental law (see paragraph 95 above).

The Court recalls that, in the Fisheries Jurisdiction case (I.C.J. Reports 1973, p. 63, para. 36),
it stated that,

"Article 62 of the Vienna Convention on the Law of Treaties, . . . may in many respects be
considered as a codification of existing customary law on the subject of the termination of a
treaty relationship on account of change of circumstances".

The prevailing political situation was certainly relevant for the conclusion of the 1977 Treaty.
But the Court will recall that the Treaty provided for a joint investment programme for the
production of energy, the control of floods and the improvement of navigation on the Danube.
In the Court's view, the prevalent political conditions were thus not so closely linked to the
object and purpose of the Treaty that they constituted an essential basis of the consent of the
parties and, in changing, radically altered the extent of the obligations still to be performed.
The same holds good for the economic system in force at the time of the conclusion of the
1977 Treaty. Besides, even though the estimated profitability of the Project might have
appeared less in 1992 than in 1977, it does not appear from the record before the Court that it
was bound to diminish to such an extent that the treaty obligations of the parties would have
been radically transformed as a result.

The Court does not consider that new developments in the state of [p65] environmental
knowledge and of environmental law can be said to have been completely unforeseen. What is
more, the formulation of Articles 15, 19 and 20, designed to accommodate change, made it
possible for the parties to take account of such developments and to apply them when
implementing those treaty provisions.

The changed circumstances advanced by Hungary are, in the Court's view, not of such a
nature, either individually or collectively, that their effect would radically transform the extent
of the obligations still to be performed in order to accomplish the Project. A fundamental
change of circumstances must have been unforeseen; the existence of the circumstances at the
time of the Treaty's conclusion must have constituted an essential basis of the consent of the
parties to be bound by the Treaty. The negative and conditional wording of Article 62 of the
Vienna Convention on the Law of Treaties is a clear indication moreover that the stability of
treaty relations requires that the plea of fundamental change of circumstances be applied only
in exceptional cases.

105. The Court will now examine Hungary's argument that it was entitled to terminate the
1977 Treaty on the ground that Czechoslovakia had violated its Articles 15, 19 and 20 (as
well as a number of other conventions and rules of general international law); and that the
planning, construction and putting into operation of Variant C also amounted to a material
breach of the 1977 Treaty.

106. As to that part of Hungary's argument which was based on other treaties and general
rules of international law, the Court is of the view that it is only a material breach of the treaty
itself, by a State party to that treaty, which entitles the other party to rely on it as a ground for
terminating the treaty. The violation of other treaty rules or of rules of general international
law may justify the taking of certain measures, including countermeasures, by the injured
State, but it does not constitute a ground for termination under the law of treaties.

107. Hungary contended that Czechoslovakia had violated Articles 15, 19 and 20 of the
Treaty by refusing to enter into negotiations with Hungary in order to adapt the Joint
Contractual Plan to new scientific and legal developments regarding the environment. Articles
15, 19 and 20 oblige the parties jointly to take, on a continuous basis, appropriate measures
necessary for the protection of water quality, of nature and of fishing interests.

Articles 15 and 19 expressly provide that the obligations they contain shall be implemented
by the means specified in the Joint Contractual Plan. The failure of the parties to agree on
those means cannot, on the basis of the record before the Court, be attributed solely to one
party. [p66] The Court has not found sufficient evidence to conclude that Czechoslovakia had
consistently refused to consult with Hungary about the desirability or necessity of measures
for the preservation of the environment. The record rather shows that, while both parties
indicated, in principle, a willingness to undertake further studies, in practice Czechoslovakia
refused to countenance a suspension of the works at Dunakiliti and, later, on Variant C, while
Hungary required suspension as a prior condition of environmental investigation because it
claimed continuation of the work would prejudice the outcome of negotiations. In this regard
it cannot be left out of consideration that Hungary itself, by suspending the works at
Nagymaros and Dunakiliti, contributed to the creation of a situation which was not conducive
to the conduct of fruitful negotiations.

108. Hungary's main argument for invoking a material breach of the Treaty was the
construction and putting into operation of Variant C. As the Court has found in paragraph 79
above, Czechoslovakia violated the Treaty only when it diverted the waters of the Danube
into the bypass canal in October 1992. In constructing the works which would lead to the
putting into operation of Variant C, Czechoslovakia did not act unlawfully.

In the Court's view, therefore, the notification of termination by Hungary on 19 May 1992
was premature. No breach of the Treaty by Czechoslovakia had yet taken place and
consequently Hungary was not entitled to invoke any such breach of the Treaty as a ground
for terminating it when it did.

109. In this regard, it should be noted that, according to Hungary's Declaration of 19 May
1992, the termination of the 1977 Treaty was to take effect as from 25 May 1992, that is only
six days later. Both Parties agree that Articles 65 to 67 of the Vienna Convention on the Law
of Treaties, if not codifying customary law, at least generally reflect customary international
law and contain certain procedural principles which are based on an obligation to act in good
faith. As the Court stated in its Advisory Opinion on the Interpretation of the Agreement of 25
March 1951 between the WHO and Egypt (in which case the Vienna Convention did not
apply):

"Precisely what periods of time may be involved in the observance of the duties to consult and
negotiate, and what period of notice of termination should be given, are matters which
necessarily vary according to the requirements of the particular case. In principle, therefore, it
is for the parties in each case to determine the length of those periods by consultation and
negotiation in good faith." (I.C.J. Reports 1980, p. 96, para. 49.)

The termination of the Treaty by Hungary was to take effect six days [p67] after its
notification. On neither of these dates had Hungary suffered injury resulting from acts of
Czechoslovakia. The Court must therefore confirm its conclusion that Hungary's termination
of the Treaty was premature.

110. Nor can the Court overlook that Czechoslovakia committed the internationally wrongful
act of putting into operation Variant C as a result of Hungary's own prior wrongful conduct.
As was stated by the Permanent Court of International Justice:

"It is, moreover, a principle generally accepted in the jurisprudence of international

arbitration, as well as by municipal courts, that one Party cannot avail himself of the fact that
the other has not fulfilled some obligation or has not had recourse to some means of redress, if
the former Party has, by some illegal act, prevented the latter from fulfilling the obligation in
question, or from having recourse to the tribunal which would have been open, to him."
(Factory at Chorzow, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 31.)

Hungary, by its own conduct, had prejudiced its right to terminate the Treaty; this would still
have been the case even if Czechoslovakia, by the time of the purported termination, had
violated a provision essential to the accomplishment of the object or purpose of the Treaty.

111. Finally, the Court will address Hungary's claim that it was entitled to terminate the 1977
Treaty because new requirements of international law for the protection of the environment
precluded performance of the Treaty.

112. Neither of the Parties contended that new peremptory norms of environmental law had
emerged since the conclusion of the 1977 Treaty, and the Court will consequently not be
required to examine the scope of Article 64 of the Vienna Convention on the Law of Treaties.
On the other hand, the Court wishes to point out that newly developed norms of
environmental law are relevant for the implementation of the Treaty and that the parties could,
by agreement, incorporate them through the application of Articles 15, 19 and 20 of the
Treaty. These articles do not contain specific obligations of performance but require the
parties, in carrying out their obligations to ensure that the quality of water in the Danube is
not impaired and that nature is protected, to take new environmental norms into consideration
when agreeing upon the means to be specified in the Joint Contractual Plan.

By inserting these evolving provisions in the Treaty, the parties recognized the potential
necessity to adapt the Project. Consequently, the [p68] Treaty is not static, and is open to
adapt to emerging norms of international law. By means of Articles 15 and 19, new
environmental norms can be incorporated in the Joint Contractual Plan.

The responsibility to do this was a joint responsibility. The obligations contained in Articles
15, 19 and 20 are, by definition, general and have to be transformed into specific obligations
of performance through a process of consultation and negotiation. Their implementation thus
requires a mutual willingness to discuss in good faith actual and potential environmental risks.

It is all the more important to do this because as the Court recalled in its Advisory Opinion on
the Legality of the Threat or Use of Nuclear Weapons, "the environment is not an abstraction
but represents the living space, the quality of life and the very health of human beings,
including generations unborn" (I.C.J. Reports 1996, para. 29; see also paragraph 53 above).

The awareness of the vulnerability of the environment and the recognition that environmental
risks have to be assessed on a continuous basis have become much stronger in the years since
the Treaty's conclusion. These new concerns have enhanced the relevance of Articles 15, 19
and 20.

113. The Court recognizes that both Parties agree on the need to take environmental concerns
seriously and to take the required precautionary measures, but they fundamentally disagree on
the consequences this has for the joint Project. In such a case, third-party involvement may be
helpful and instrumental in finding a solution, provided each of the Parties is flexible in its
position.

114. Finally, Hungary maintained that by their conduct both parties had repudiated the Treaty
and that a bilateral treaty repudiated by both parties cannot survive. The Court is of the view,
however, that although it has found that both Hungary and Czechoslovakia failed to comply
with their obligations under the 1977 Treaty, this reciprocal wrongful conduct did not bring
the Treaty to an end nor justify its termination. The Court would set a precedent with
disturbing implications for treaty relations and the integrity of the rule pacta sunt servanda if it
were to conclude that a treaty in force between States, which the parties have implemented in
considerable measure and at great cost over a period of years, might be unilaterally set aside
on grounds of reciprocal non-compliance. It would be otherwise, of course, if the parties
decided to terminate the Treaty by mutual consent. But in this case, while Hungary purported
to terminate the Treaty, Czechoslovakia consistently resisted this act and declared it to be
without legal effect.

**

115. In the light of the conclusions it has reached above, the Court, in reply to the question put
to it in Article 2, paragraph 1 (c), of the Special Agreement (see paragraph 89), finds that the
notification of termination by Hungary of 19 May 1992 did not have the legal effect of
terminating the 1977 Treaty and related instruments.

***

116. In Article 2, paragraph 2, of the Special Agreement, the Court is requested to determine
the legal consequences, including the rights and obligations for the Parties, arising from its
Judgment on the questions formulated in paragraph 1. In Article 5 of the Special Agreement
the Parties agreed to enter into negotiations on the modalities for the execution of the
Judgment immediately after the Court has rendered it.

117. The Court must first turn to the question whether Slovakia became a party to the 1977
Treaty as successor to Czechoslovakia. As an alternative argument, Hungary contended that,
even if the Treaty survived the notification of termination, 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 Czechoslovakia ceased to exist as a legal entity, and on 1 January 1993 the Czech
Republic and the Slovak Republic came into existence.
118. According to Hungary, "There is no rule of international law which provides for
automatic succession to bilateral treaties on the disappearance of a party" and such a treaty
will not survive unless another State succeeds to it by express agreement between that State
and the remaining party. While the second paragraph of the Preamble to the Special
Agreement recites that

"the Slovak Republic is one of the two successor States of the Czech and Slovak Federal
Republic and the sole successor State in respect of rights and obligations relating to the
Gabcikovo-Nagymaros Project",

Hungary sought to distinguish between, on the one hand, rights and obligations such as
"continuing property rights" under the 1977 Treaty, and, on the other hand, the treaty itself. It
argued that, during the negotiations leading to signature of the Special Agreement, Slovakia
had proposed a text in which it would have been expressly recognized "as the successor to the
Government of the CSFR" with regard to the 1977 Treaty, but that Hungary had rejected that
formulation. It contended that it had never agreed to accept Slovakia as successor to the 1977
Treaty. Hungary referred to diplomatic exchanges in which the two Parties had each
submitted to the other lists of those bilateral treaties which they respectively wished should
continue in force between them, for negotiation on a case-[p70]by-case basis; and Hungary
emphasized that no agreement was ever reached with regard to the 1977 Treaty.

119. Hungary claimed that there was no rule of succession which could operate in the present
case to override the absence of consent.

Referring to Article 34 of the Vienna Convention of 23 August 1978 on Succession of States

in respect of Treaties, in which "a rule of automatic succession to all treaties is provided for",
based on the principle of continuity, Hungary argued not only that it never signed or ratified
the Convention, but that the "concept of automatic succession" contained in that Article was
not and is not, and has never been accepted as, a statement of general international law.

Hungary further submitted that the 1977 Treaty did not create "obligations and rights . . .
relating to the regime of a boundary" within the meaning of Article 11 of that Convention,
and noted that the existing course of the boundary was unaffected by the Treaty. It also denied
that the Treaty was a "localized" treaty, or that it created rights "considered as attaching to
[the] territory" within the meaning of Article 12 of the 1978 Convention, which would, as
such, be unaffected by a succession of States. The 1977 Treaty was, Hungary insisted, simply
a joint investment. Hungary's conclusion was that there is no basis on which the Treaty could
have survived the disappearance of Czechoslovakia so as to be binding as between itself and
Slovakia.

120. According to Slovakia, the 1977 Treaty, which was not lawfully terminated by Hungary's
notification in May 1992, remains in force between itself, as successor State, and Hungary.

Slovakia acknowledged that there was no agreement on succession to the Treaty between
itself and Hungary. It relied instead, in the first place, on the "general rule of continuity which
applies in the case of dissolution"; it argued, secondly, that the Treaty is one "attaching to
[the] territory" within the meaning of Article 12 of the 1978 Vienna Convention, and that it
contains provisions relating to a boundary.

121. In support of its first argument Slovakia cited Article 34 of the 1978 Vienna Convention,
which it claimed is a statement of customary international law, and which imposes the
principle of automatic succession as the rule applicable in the case of dissolution of a State
where the predecessor State has ceased to exist. Slovakia maintained that State practice in
cases of dissolution tends to support continuity as the rule to be followed with regard to
bilateral treaties. Slovakia having succeeded to part of the territory of the former
Czechoslovakia, this would be the rule applicable in the present case.

122. Slovakia's second argument rests on "the principle of ipso jure continuity of treaties of a
territorial or localized character". This rule, Slovakia said, is embodied in Article 12 of the
1978 Convention, which in part provides as follows: [p71]

"Article 12

Other territorial regimes

……………………………………………………………………………………………
2. A succession of States does not as such affect:

(a) obligations relating to the use of any territory, or to restrictions upon its use, established by
a treaty for the benefit of a group of States or of all States and considered as attaching to that
territory;

(b) rights established by a treaty for the benefit of a group of States or of all States and
relating to the use of any territory, or to restrictions upon its use, and considered as attaching
to that territory. . ."

According to Slovakia, "[this] article [too] can be considered to be one of those provisions of
the Vienna Convention that represent the codification of customary international law". The
1977 Treaty is said to fall within its scope because of its "specific characteristics . . . which
place it in the category of treaties of a localized or territorial character". Slovakia also
described the Treaty as one "which contains boundary provisions and lays down a specific
territorial regime" which operates in the interest of all Danube riparian States, and as "a
dispositive treaty, creating rights in rem, independently of the legal personality of its original
signatories". Here, Slovakia relied on the recognition by the International Law Commission of
the existence of a "special rule" whereby treaties "intended to establish an objective regime"
must be considered as binding on a successor State (Official Records of the United Nations
Conference on the Succession of States in respect of Treaties, Vol. III, Doc.
A/CONF.80/16/Add.2, p. 34). Thus, in Slovakia's view, the 1977 Treaty was not one which
could have been terminated through the disappearance of one of the original parties.

*
123. The Court does not find it necessary for the purposes of the present case to enter into a
discussion of whether or not Article 34 of the 1978 Convention reflects the state of customary
international law. More relevant to its present analysis is the particular nature and character of
the 1977 Treaty. An examination of this Treaty confirms that, aside from its undoubted nature
as a joint investment, its major elements were the proposed construction and joint operation of
a large, integrated and indivisible complex of structures and installations on specific parts of
the respective territories of Hungary and Czechoslovakia along the Danube. The Treaty also
established the navigational regime for an important sector of an international waterway, in
particular the relocation of the main international shipping lane to the bypass canal. In so
doing, it inescapably created a situation in which the interests of other users of the Dan-
[p72]ube were affected. Furthermore, the interests of third States were expressly
acknowledged in Article 18, whereby the parties undertook to ensure "uninterrupted and safe
navigation on the international fairway" in accordance with their obligations under the
Convention of 18 August 1948 concerning the Regime of Navigation on the Danube.

In its Commentary on the Draft Articles on Succession of States in respect of Treaties,

adopted at its twenty-sixth session, the International Law Commission identified "treaties of a
territorial character" as having been regarded both in traditional doctrine and in modern
opinion as unaffected by a succession of States (Official Records of the United Nations
Conference on the Succession of States in respect of Treaties, Vol. III, Doc. A/CONF
80/16/Add.2, p. 27, para. 2). The draft text of Article 12, which reflects this principle, was
subsequently adopted unchanged in the 1978 Vienna Convention. The Court considers that
Article 12 reflects a rule of customary international law; it notes that neither of the Parties
disputed this. Moreover, the Commission indicated that "treaties concerning water rights or
navigation on rivers are commonly regarded as candidates for inclusion in the category of
territorial treaties" (ibid., p. 33, para. 26). The Court observes that Article 12, in providing
only, without reference to the treaty itself, that rights and obligations of a territorial character
established by a treaty are unaffected by a succession of States, appears to lend support to the
position of Hungary rather than of Slovakia. However the Court concludes that this
formulation was devised rather to take account of the fact that, in many cases, treaties which
had established boundaries or territorial regimes were no longer in force (ibid., pp. 26-37).
Those that remained in force would nonetheless bind a successor State.

Taking all these factors into account, the Court finds that the content of the 1977 Treaty
indicates that it must be regarded as establishing a territorial regime within the meaning of
Article 12 of 1978 Vienna Convention. It created rights and obligations "attaching to" the
parts of the Danube to which it relates; thus the Treaty itself cannot be affected by a
succession of States. The Court therefore concludes that the 1977 Treaty became binding
upon Slovakia on 1 January 1993.

124. It might be added that Slovakia also contended that, while still a constituent part of
Czechoslovakia, it played a role in the development of the Project, as it did later, in the most
critical phase of negotiations with Hungary about the fate of the Project. The evidence shows
that the Slovak Government passed resolutions prior to the signing of the 1977 Treaty in
preparation for its implementation; and again, after signature, expressing its support for the
Treaty. It was the Slovak Prime Minister who attended the meeting held in Budapest on 22
April 1991 as the Plenipotentiary of the Federal Government to discuss questions arising out
of the Project. It was his successor as Prime Minister who notified his Hun-[p73]garian
counterpart by letter on 30 July 1991 of the decision of the Government of the Slovak
Republic, as well as of the Government of the Czech and Slovak Federal Republic, to proceed
with the "provisional solution" (see paragraph 63 above); and who wrote again on 18
December 1991 to the Hungarian Minister without Portfolio, renewing an earlier suggestion
that a joint commission be set up under the auspices of the European Communities to consider
possible solutions. The Slovak Prime Minister also wrote to the Hungarian Prime Minister in
May 1992 on the subject of the decision taken by the Hungarian Government to terminate the
Treaty, informing him of resolutions passed by the Slovak Government in response.

It is not necessary, in the light of the conclusions reached in paragraph 123 above, for the
Court to determine whether there are legal consequences to be drawn from the prominent part
thus played by the Slovak Republic. Its role does, however, deserve mention.

***

125. The Court now turns to the other legal consequences arising from its Judgment.

As to this, Hungary argued that future relations between the Parties, as far as Variant C is
concerned, are not governed by the 1977 Treaty. It claims that it is entitled, pursuant to the
Convention of 1976 on the Regulation of Water Management Issues of Boundary Waters, to
"50% of the natural flow of the Danube at the point at which it crosses the boundary below
Cunovo" and considers that the Parties

"are obliged to enter into negotiations in order to produce the result that the water conditions
along the area from below Cunovo to below the confluence at Sap become jointly defined
water conditions as required by Article 3 (a) of the 1976 Convention".

Hungary moreover indicated that any mutually accepted long-term discharge regime must be
"capable of avoiding damage, including especially damage to biodiversity prohibited by the
[1992 Rio Convention on Biological Diversity]". It added that "a joint environmental impact
assessment of the region and of the future of Variant C structures in the context of the
sustainable development of the region" should be carried out.

126. Hungary also raised the question of financial accountability for the failure of the original
project and stated that both Parties accept the fact that the other has "proprietary and financial
interests in the residues of the original Project and that an accounting has to be carried out".
Furthermore, it noted that:

"Other elements of damage associated with Variant C on Hungarian territory also have to be
brought into the accounting . . ., as well as electricity production since the diversion"
[p74] and that "The overall situation is a complex one, and it may be most easily resolved by
some form of lump sum settlement."

127. Hungary stated that Slovakia had incurred international responsibility and should make
reparation for the damage caused to Hungary by the operation of Variant C. In that
connection, it referred, in the context of reparation of the damage to the environment, to the
rule of restitutio in integrum, and called for the re-establishment of "joint control by the two
States over the installations maintained as they are now", and the "re-establishment of the
flow of [the] waters to the level at which it stood prior to the unlawful diversion of the river".
It also referred to reparation of the damage to the fauna, the flora, the soil, the sub-soil, the
groundwater and the aquifer, the damages suffered by the Hungarian population on account of
the increase in the uncertainties weighing on its future (pretium doloris), and the damage
arising from the unlawful use, in order to divert the Danube, of installations over which the
two Parties exercised joint ownership.

Lastly, Hungary called for the "cessation of the continuous unlawful acts" and a "guarantee
that the same actions will not be repeated", and asked the Court to order "the permanent
suspension of the operation of Variant C".

128. Slovakia argued for its part that Hungary should put an end to its unlawful conduct and
cease to impede the application of the 1977 Treaty, taking account of its "flexibility and of the
important possibilities of development for which it provides, or even of such amendments as
might be made to it by agreement between the Parties, further to future negotiations". It stated
that joint operations could resume on a basis jointly agreed upon and emphasized the
following:

"whether Nagymaros is built as originally planned, or built elsewhere in a different form, or,
indeed, not built at all, is a question to be decided by the Parties some time in the future.
……………………………………………………………………………………………
Provided the bypass canal and the Gabcikovo Power-station and Locks - both part of the
original Treaty, and not part of Variant C - remain operational and economically viable and
efficient, Slovakia is prepared to negotiate over the future roles of Dunakiliti and Cunovo,
bearing Nagymaros in mind."

It indicated that the Gabcikovo power plant would not operate in peak mode "if the evidence
of environmental damage [was] clear and accepted by both Parties". Slovakia noted that the
Parties appeared to agree that an accounting should be undertaken "so that, guided by the
Court's findings on responsibility, the Parties can try to reach a global settlement". It [p75]
added that the Parties would have to agree on how the sums due are to be paid.

129. Slovakia stated that Hungary must make reparation for the deleterious consequences of
its failures to comply with its obligations, "whether they relate to its unlawful suspensions and
abandonments of works or to its formal repudiation of the Treaty as from May 1992", and that
compensation should take the form of a restitutio in integrum. It indicated that "Unless the
Parties come to some other arrangement by concluding an agreement, restitutio in integrum
ought to take the form of a return by Hungary, at a future time, to its obligations under the
Treaty" and that "For compensation to be 'full'. . ., to 'wipe out all the consequences of the
illegal act'. . ., a payment of compensation must . . . be added to the restitutio . . ." Slovakia
claims compensation which must include both interest and loss of profits and should cover the
following heads of damage, which it offers by way of guidance:

(1) Losses caused to Slovakia in the Gabcikovo sector: costs incurred from 1990 to 1992 by
Czechoslovakia in protecting the structures of the G/N project and adjacent areas; the cost of
maintaining the old bed of the River Danube pending the availability of the new navigation
canal, from 1990 to 1992; losses to the Czechoslovak navigation authorities due to the
unavailability of the bypass canal from 1990 to 1992; construction costs of Variant C (1990-
1992).

(2) Losses caused to Slovakia in the Nagymaros sector: losses in the field of navigation and
flood protection incurred since 1992 by Slovakia due to the failure of Hungary to proceed
with the works.

(3) Loss of electricity production.

Slovakia also calls for Hungary to "give the appropriate guarantees that it will abstain from
preventing the application of the Treaty and the continuous operation of the system". It argued
from that standpoint that it is entitled "to be given a formal assurance that the internationally
wrongful acts of Hungary will not recur", and it added that "the maintenance of the closure of
the Danube at Cunovo constitutes a guarantee of that kind", unless Hungary gives an
equivalent guarantee "within the framework of the negotiations that are to take place between
the Parties".

130. The Court observes that the part of its Judgment which answers the questions in Article
2, paragraph 1, of the Special Agreement has a declaratory character. It deals with the past
conduct of the Parties and determines the lawfulness or unlawfulness of that conduct between
1989 and 1992 as well as its effects on the existence of the Treaty.

131. Now the Court has, on the basis of the foregoing findings, to [p76] determine what the
future conduct of the Parties should be. This part of the Judgment is prescriptive rather than
declaratory because it determines what the rights and obligations of the Parties are. The
Parties will have to seek agreement on the modalities of the execution of the Judgment in the
light of this determination, as they agreed to do in Article 5 of the Special Agreement.

**

132. In this regard it is of cardinal importance that the Court has found that the 1977 Treaty is
still in force and consequently governs the relationship between the Parties. That relationship
is also determined by the rules of other relevant conventions to which the two States are party,
by the rules of general international law and, in this particular case, by the rules of State
responsibility; but it is governed, above all, by the applicable rules of the 1977 Treaty as a lex
specialis.

133. The Court, however, cannot disregard the fact that the Treaty has not been fully
implemented by either party for years, and indeed that their acts of commission and omission
have contributed to creating the factual situation that now exists. Nor can it overlook that
factual situation -- or the practical possibilities and impossibilities to which it gives rise --
when deciding on the legal requirements for the future conduct of the Parties.

This does not mean that facts -- in this case facts which flow from wrongful conduct --
determine the law. The principle ex injuria jus non oritur is sustained by the Court's finding
that the legal relationship created by the 1977 Treaty is preserved and cannot in this case be
treated as voided by unlawful conduct.

What is essential, therefore, is that the factual situation as it has developed since 1989 shall be
placed within the context of the preserved and developing treaty relationship, in order to
achieve its object and purpose in so far as that is feasible. For it is only then that the irregular
state of affairs which exists as the result of the failure of both Parties to comply with their
treaty obligations can be remedied.

134. What might have been a correct application of the law in 1989 or 1992, if the case had
been before the Court then, could be a miscarriage of justice if prescribed in 1997. The Court
cannot ignore the fact that the Gabcikovo power plant has been in operation for nearly five
years, that the bypass canal which feeds the plant receives its water from a significantly
smaller reservoir formed by a dam which is built not at Dunakiliti but at Cunovo, and that the
plant is operated in a run-of-the-river mode and not in a peak hour mode as originally
foreseen. Equally, the Court cannot ignore the fact that, not only has Nagymaros not been
built, but that, with the effective discarding by both Parties of peak power operation, there is
no longer any point in building it.

135. As the Court has already had occasion to point out, the 1977 Treaty was not only a joint
investment project for the production of [p77] energy, but it was designed to serve other
objectives as well: the improvement of the navigability of the Danube, flood control and
regulation of ice-discharge, and the protection of the natural environment. None of these
objectives has been given absolute priority over the other, in spite of the emphasis which is
given in the Treaty to the construction of a System of Locks for the production of energy.
None of them has lost its importance. In order to achieve these objectives the parties accepted
obligations of conduct, obligations of performance, and obligations of result.

136. It could be said that that part of the obligations of performance which related to the
construction of the System of Locks - in so far as they were not yet implemented before 1992
-- have been overtaken by events. It would be an administration of the law altogether out of
touch with reality if the Court were to order those obligations to be fully reinstated and the
works at Cunovo to be demolished when the objectives of the Treaty can be adequately served
by the existing structures.

137. Whether this is indeed the case is, first and foremost, for the Parties to decide. Under the
1977 Treaty its several objectives must be attained in an integrated and consolidated
programme, to be developed in the Joint Contractual Plan. The Joint Contractual Plan was,
until 1989, adapted and amended frequently to better fit the wishes of the parties. This Plan
was also expressly described as the means to achieve the objectives of maintenance of water
quality and protection of the environment.

138. The 1977 Treaty never laid down a rigid system, albeit that the construction of a system
of locks at Gabcikovo and Nagymaros was prescribed by the Treaty itself. In this respect,
however, the subsequent positions adopted by the parties should be taken into consideration.
Not only did Hungary insist on terminating construction at Nagymaros, but Czechoslovakia
stated, on various occasions in the course of negotiations, that it was willing to consider a
limitation or even exclusion of operation in peak hour mode. In the latter case the construction
of the Nagymaros dam would have become pointless. The explicit terms of the Treaty itself
were therefore in practice acknowledged by the parties to be negotiable.

139. The Court is of the opinion that the Parties are under a legal obligation, during the
negotiations to be held by virtue of Article 5 of the Special Agreement, to consider, within the
context of the 1977 Treaty, in what way the multiple objectives of the Treaty can best be
served, keeping in mind that all of them should be fulfilled.

140. It is clear that the Project's impact upon, and its implications for, the environment are of
necessity a key issue. The numerous scientific reports which have been presented to the Court
by the Parties -- even if their conclusions are often contradictory -- provide abundant evidence
that this impact and these implications are considerable.

In order to evaluate the environmental risks, current standards must be taken into
consideration. This is not only allowed by the wording of Articles 15 and 19, but even
prescribed, to the extent that these articles impose a continuing -- and thus necessarily
evolving -- obligation on the parties to maintain the quality of the water of the Danube and to
protect nature.

The Court is mindful that, in the field of environmental protection, vigilance and prevention
are required on account of the often irreversible character of damage to the environment and
of the limitations inherent in the very mechanism of reparation of this type of damage.

Throughout the ages, mankind has, for economic and other reasons, constantly interfered with
nature. In the past, this was often done without consideration of the effects upon the
environment. Owing to new scientific insights and to a growing awareness of the risks for
mankind -- for present and future generations -- of pursuit of such interventions at an
unconsidered and unabated pace, new norms and standards have been developed, set forth in a
great number of instruments during the last two decades. Such new norms have to be taken
into consideration, and such new standards given proper weight, not only when States
contemplate new activities but also when continuing with activities begun in the past. This
need to reconcile economic development with protection of the environment is aptly
expressed in the concept of sustainable development.

For the purposes of the present case, this means that the Parties together should look afresh at
the effects on the environment of the operation of the Gabcikovo power plant. In particular
they must find a satisfactory solution for the volume of water to be released into the old bed
of the Danube and into the side-arms on both sides of the river.

141. It is not for the Court to determine what shall be the final result of these negotiations to
be conducted by the Parties. It is for the Parties themselves to find an agreed solution that
takes account of the objectives of the Treaty, which must be pursued in a joint and integrated
way, as well as the norms of international environmental law and the principles of the law of
international watercourses. The Court will recall in this context that, as it said in the North
Sea Continental Shelf cases:

"[the Parties] are under an obligation so to conduct themselves that the negotiations are
meaningful, which will not be the case when either of them insists upon its own position
without contemplating any modification of it" (I.C.J. Reports 1969, p. 47, para. 85).

142. What is required in the present case by the rule pacta sunt servanda, as reflected in
Article 26 of the Vienna Convention of 1969 on the Law of Treaties, is that the Parties find an
agreed solution within the co-operative context of the Treaty.

Article 26 combines two elements, which are of equal importance. It provides that "Every
treaty in force is binding upon the parties to it and [p79] must be performed by them in good
faith". This latter element, in the Court's view, implies that, in this case, it is the purpose of
the Treaty, and the intentions of the parties in concluding it, which should prevail over its
literal application. The principle of good faith obliges the Parties to apply it in a reasonable
way and in such a manner that its purpose can be realized.

143. During this dispute both Parties have called upon the assistance of the Commission of
the European Communities. Because of the diametrically opposed positions the Parties took
with regard to the required outcome of the trilateral talks which were envisaged, those talks
did not succeed. When, after the present Judgment is given, bilateral negotiations without pre-
conditions are held, both Parties can profit from the assistance and expertise of a third party.
The readiness of the Parties to accept such assistance would be evidence of the good faith
with which they conduct bilateral negotiations in order to give effect to the Judgment of the
Court.

144. The 1977 Treaty not only contains a joint investment programme, it also establishes a
regime. According to the Treaty, the main structures of the System of Locks are the joint
property of the Parties; their operation will take the form of a co-ordinated single unit; and the
benefits of the project shall be equally shared.

Since the Court has found that the Treaty is still in force and that, under its terms, the joint
regime is a basic element, it considers that, unless the Parties agree otherwise, such a regime
should be restored.

145. Article 10, paragraph 1, of the Treaty states that works of the System of Locks
constituting the joint property of the contracting parties shall be operated, as a co-ordinated
single unit and in accordance with jointly-agreed operating and operational procedures, by the
authorized operating agency of the contracting party in whose territory the works are built.
Paragraph 2 of that Article states that works on the System of Locks owned by one of the
contracting parties shall be independently operated or maintained by the agencies of that
Contracting Party in the jointly prescribed manner.

The Court is of the opinion that the works at Cunovo should become a jointly operated unit
within the meaning of Article 10, paragraph 1, in view of their pivotal role in the operation of
what remains of the Project and for the water-management regime. The dam at Cunovo has
taken over the role which was originally destined for the works at Dunakiliti, and therefore
should have a similar status.

146. The Court also concludes that Variant C, which it considers operates in a manner
incompatible with the Treaty, should be made to conform to it. By associating Hungary, on an
equal footing, in its operation, management and benefits, Variant C will be transformed from
a de facto status into a treaty-based regime.

It appears from various parts of the record that, given the current state [p80] of information
before the Court, Variant C could be made to function in such a way as to accommodate both
the economic operation of the system of electricity generation and the satisfaction of essential
environmental concerns.

Regularization of Variant C by making it part of a single and indivisible operational system of

works also appears necessary to ensure that Article 9 of the Treaty, which provides that the
contracting parties shall participate in the use and in the benefits of the System of Locks in
equal measure, will again become effective.

147. Re-establishment of the joint regime will also reflect in an optimal way the concept of
common utilization of shared water resources for the achievement of the several objectives
mentioned in the Treaty, in concordance with Article 5, paragraph 2, of the Convention on the
Law of the Non-Navigational Uses of International Watercourses, according to which:

"Watercourse States shall participate in the use, development and protection of an

international watercourse in an equitable and reasonable manner. Such participation includes
both the right to utilize the watercourse and the duty to cooperate in the protection and
development thereof, as provided in the present Convention." (General Assembly Doc.
A/51/869 of 11 April 1997.)
148. Thus far the Court has indicated what in its view should be the effects of its finding that
the 1977 Treaty is still in force. Now the Court will turn to the legal consequences of the
internationally wrongful acts committed by the Parties.

149. The Permanent Court of International Justice stated in its Judgment of 13 September
1928 in the case concerning the Factory at Chorzow:

"reparation must, as far as possible, wipe out all the consequences of the illegal act and
reestablish the situation which would, in all probability, have existed if that act had not been
committed" (P.C.I.J., Series A, No. 17, p. 47).

150. Reparation must, "as far as possible", wipe out all the consequences of the illegal act. In
this case, the consequences of the wrongful acts of both Parties will be wiped out "as far as
possible" if they resume their co-operation in the utilization of the shared water resources of
the Danube, and if the multi-purpose programme, in the form of a co-ordinated single unit, for
the use, development and protection of the watercourse is implemented in an equitable and
reasonable manner. What it is possible for the Parties to do is to re-establish co-operative
administration of what remains of the Project. To that end, it is open to them to agree to
maintain the works at Cunovo, with changes in the mode of operation in respect of the
allocation of water and electricity, and not to build works at Nagymaros. [p81]

151. The Court has been asked by both Parties to determine the consequences of the Judgment
as they bear upon payment of damages. According to the Preamble to the Special Agreement,
the Parties agreed that Slovakia is the sole successor State of Czechoslovakia in respect of
rights and obligations relating to the Gabcikovo-Nagymaros Project. Slovakia thus may be
liable to pay compensation not only for its own wrongful conduct but also for that of
Czechoslovakia, and it is entitled to be compensated for the damage sustained by
Czechoslovakia as well as by itself as a result of the wrongful conduct of Hungary.

152. The Court has not been asked at this stage to determine the quantum of damages due, but
to indicate on what basis they should be paid. Both Parties claimed to have suffered
considerable financial losses and both claim pecuniary compensation for them.

It is a well-established rule of international law that an injured State is entitled to obtain

compensation from the State which has committed an internationally wrongful act for the
damage caused by it. In the present Judgment, the Court has concluded that both Parties
committed internationally wrongful acts, and it has noted that those acts gave rise to the
damage sustained by the Parties; consequently, Hungary and Slovakia are both under an
obligation to pay compensation and are both entitled to obtain compensation.

Slovakia is accordingly entitled to compensation for the damage suffered by Czechoslovakia

as well as by itself as a result of Hungary's decision to suspend and subsequently abandon the
works at Nagymaros and Dunakiliti, as those actions caused the postponement of the putting
into operation of the Gabcikovo power plant, and changes in its mode of operation once in
service.

Hungary is entitled to compensation for the damage sustained as a result of the diversion of
the Danube, since Czechoslovakia, by putting into operation Variant C, and Slovakia, in
maintaining it in service, deprived Hungary of its rightful part in the shared water resources,
and exploited those resources essentially for their own benefit.

153. Given the fact, however, that there have been intersecting wrongs by both Parties, the
Court wishes to observe that the issue of compensation could satisfactorily be resolved in the
framework of an overall settlement if each of the Parties were to renounce or cancel all
financial claims and counter-claims.

154. At the same time, the Court wishes to point out that the settlement of accounts for the
construction of the works is different from the issue of compensation, and must be resolved in
accordance with the 1977 Treaty and related instruments. If Hungary is to share in the
operation and benefits of the Cunovo complex, it must pay a proportionate share of the
building and running costs.

***[p82]

155. For these reasons,

THE COURT,

(1) Having regard to Article 2, paragraph 1, of the Special Agreement,

A. Finds, by fourteen votes to one, that Hungary was not entitled to suspend and subsequently
abandon, in 1989, the works on the Nagymaros Project and on the part of the Gabcikovo
Project for which the Treaty of 16 September 1977 and related instruments attributed
responsibility to it;

IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui,

Guillaume, Ranjeva, Shi, Fleischhauer, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans,
Rezek; Judge ad hoc Skubiszewski;

AGAINST: Judge Herczegh;

B. Finds, by nine votes to six, that Czechoslovakia was entitled to proceed, in November
1991, to the "provisional solution" as described in the terms of the Special Agreement;

IN FAVOUR: Vice-President Weeramantry; Judges Oda, Guillaume, Shi, Koroma,

Vereshchetin, Parra-Aranguren, Kooijmans; Judge ad hoc Skubiszewski;

AGAINST: President Schwebel; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Rezek;

C. Finds, by ten votes to five, that Czechoslovakia was not entitled to put into operation, from
October 1992, this "provisional solution";

IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Bedjaoui,

Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Kooijmans, Rezek;

AGAINST: Judges Oda, Koroma, Vereshchetin, Parra-Aranguren; Judge ad hoc

Skubiszewski;

D. Finds, by eleven votes to four, that the notification, on 19 May 1992, of the termination of
the Treaty of 16 September 1977 and related instruments by Hungary did not have the legal
effect of terminating them;

IN FAVOUR: Vice-President Weeramantry; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Shi,

Koroma, Vereshchetin, Parra-Aranguren, Kooijmans; Judge ad hoc Skubiszewski;

AGAINST: President Schwebel; Judges Herczegh, Fleischhauer, Rezek;[p83]

(2) Having regard to Article 2, paragraph 2, and Article 5 of the Special Agreement,

A. Finds, by twelve votes to three, that Slovakia, as successor to Czechoslovakia, became a

party to the Treaty of 16 September 1977 as from 1 January 1993;

IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui,

Guillaume, Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans; Judge ad hoc
Skubiszewski;

AGAINST: Judges Herczegh, Fleischhauer, Rezek;

B. Finds, by thirteen votes to two, that Hungary and Slovakia must negotiate in good faith in
the light of the prevailing situation, and must take all necessary measures to ensure the
achievement of the objectives of the Treaty of 16 September 1977, in accordance with such
modalities as they may agree upon;

IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui,

Guillaume, Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans, Rezek; Judge
ad hoc Skubiszewski;

AGAINST: Judges Herczegh, Fleischhauer;

C. Finds, by thirteen votes to two, that, unless the Parties otherwise agree, a joint operational
regime must be established in accordance with the Treaty of 16 September 1977;

IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui,

Guillaume, Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans, Rezek; Judge
ad hoc Skubiszewski;

AGAINST: Judges Herczegh, Fleischhauer;

D. Finds, by twelve votes to three, that, unless the Parties otherwise agree, Hungary shall
compensate Slovakia for the damage sustained by Czechoslovakia and by Slovakia on
account of the suspension and abandonment by Hungary of works for which it was
responsible; and Slovakia shall compensate Hungary for the damage it has sustained on
account of the putting into operation of the "provisional solution" by Czechoslovakia and its
maintenance in service by Slovakia;

IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Bedjaoui,

Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Parra-Aranguren, Kooijmans, Rezek; Judge
ad hoc Skubiszewski;

AGAINST: Judges Oda, Koroma, Vereshchetin; [p84]

E. Finds, by thirteen votes to two, that the settlement of accounts for the construction and
operation of the works must be effected in accordance with the relevant provisions of the
Treaty of 16 September 1977 and related instruments, taking due account of such measures as
will have been taken by the Parties in application of points 2 B and C of the present operative
paragraph.

IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui,

Guillaume, Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans, Rezek; Judge
ad hoc Skubiszewski;

AGAINST: Judges Herczegh, Fleischhauer.

Done in English and in French, the English text being authoritative, at the Peace Palace, The
Hague, this twenty-fifth day of September, one thousand nine hundred and ninety-seven, in
three copies, one of which will be placed in the archives of the Court and the others
transmitted to the Government of the Republic of Hungary and the Government of the Slovak
Republic, respectively.

(Signed)Stephen M. SCHWEBEL,
President.

(Signed) Eduardo VALENCIA-OSPINA,

Registrar.
President SCHWEBEL and Judge REZEK append declarations to the Judgment of the Court.

Vice-President WEERAMANTRY, Judges BEDJAOUI and KOROMA append separate

opinions to the Judgment of the Court.

Judges ODA, RANJEVA, HERCZEGH, FLEISCHHAUER, VERESHCHETIN and PARRA-

ARANGUREN, and Judge ad hoc SKUBISZEWSKI append dissenting opinions to the
Judgment of the Court.

(Initialled) S. M. S.
(Initialled) E. V. O. [p85]

DECLARATION OF PRESIDENT SCHWEBEL

I am largely in agreement with the Court's Judgment and accordingly I have voted for most of
its operative paragraphs. I have voted against operative paragraph 1 B essentially because I
view the construction of "Variant C", the "provisional solution", as inseparable from its being
put into operation. I have voted against operative paragraph 1 D essentially because I am not
persuaded that Hungary's position as the Party initially in breach deprived it of a right to
terminate the Treaty in response to Czechoslovakia's material breach, a breach which in my
view (as indicated by my vote on paragraph 1 B) was in train when Hungary gave notice of
termination.

At the same time, I fully support the conclusions of the Court as to what should be the future
conduct of the Parties and as to disposition of issues of compensaion.

(Signed) Stephen M. SCHWEBEL. [p86]

DECLARATION OF JUDGE REZEK

[Translation]

1. Although in my opinion the 1977 Treaty is no longer in force, I am able to accept the
conclusions of the majority of the Members of the Court as to the main points, that is to say,
the practical consequences of this Judgment and the programme of measures which it invites
the States in dispute to implement.

My opposition to the majority is based primarily on theoretical convictions relating to the

nature of the 1977 Treaty and to the effects upon a bilateral commitment in course of
performance (and not yet exhibiting the territorial effects that it was intended one day to
produce) of the collective wrongfulness embodied in the existence, on the part of both the
States involved, of attitudes denoting that the animus contrahendi which supposedly united
them in the past has now disappeared.

2. A commitment such as the bilateral 1977 Treaty cannot be subject to ordinary denunciation
during performance; however, the Hungarian notification of 19 May 1992 was not an ordinary
denunciation. It was made after both Parties had failed to fulfil their mutual obligations,
Hungary by abandoning works for which it was responsible, Czechoslovakia by adopting
Variant C. I consider the Note of 19 May 1992 to be the formal act of termination of a treaty
which, for different reasons and on more than one previous occasion, each of the Parties had
already repudiated. I therefore see here an unorthodox type of abrogation.

3. In my opinion, the rule pacta sunt servanda means that the treaty creates reciprocal rights
between the parties on the basis of a convergence of interests, a pooling of sovereign wills
which in all probability will continue to coincide over time. When, on both sides of the treaty
process, there is a lack of rigour in doing what has been agreed, the commitment weakens and
becomes vulnerable to formal repudiation by one of the parties, irrespective of the question of
which party was the first to neglect its duties, and it hardly matters that the parties lacked
rigour in different ways. Treaties derive their force from the will of the States which conclude
them. They do not have an objective value which makes them sacred regardless of those
common intentions.

4. I consider that the 1977 Treaty is no longer in existence, having been abrogated by the
attitude of both parties. From that conclusion, however, I infer consequences similar to those
which the majority infers from the continued existence of the Treaty. First, there is what has
been accomplished, and accomplished in good faith. There is, also and above [p87] all, the
very principle of good faith which must lead here to the fulfilment of reciprocal duties
remaining from a treaty which has not been applied through the joint fault of the parties.

(Signed) Francisco REZEK. [p88]

SEPARATE OPINION OF VICE-PRESIDENT WEERAMANTRY

Introduction

This case raises a rich array of environmentally related legal issues. A discussion of some of
them is essential to explain my reasons for voting as I have in this very difficult decision.
Three issues on which I wish to make some observations, supplementary to those of the
Court, are the role played by the principle of sustainable development in balancing the
competing demands of development and environmental protection; the protection given to
Hungary by what I would describe as the principle of continuing environmental impact
assessment; and the appropriateness of the use of inter partes legal principles, such as
estoppel, for the resolution of problems with an erga omnes connotation such as
environmental damage.
A. The Concept of Sustainable Development

Had the possibility of environmental harm been the only consideration to be taken into
account in this regard, the contentions of Hungary could well have proved conclusive.

Yet there are other factors to be taken into account — not the least important of which is the
developmental aspect, for the Gabcikovo scheme is important to Slovakia from the point of
view of development. The Court must hold the balance even between the environmental con-
siderations and the developmental considerations raised by the respective Parties. The
principle that enables the Court to do so is the principle of sustainable development.

The Court has referred to it as a concept in paragraph 140 of its Judgment. However, I
consider it to be more than a mere concept, but as a principle with normative value which is
crucial to the determination of this case. Without the benefits of its insights, the issues
involved in this case would have been difficult to resolve.

Since sustainable development is a principle fundamental to the determination of the

competing considerations in this case, and since, although it has attracted attention only
recently in the literature of international law, it is likely to play a major role in determining
important environ-mental disputes of the future, it calls for consideration in some detail.
Moreover, this is the first occasion on which it has received attention in the jurisprudence of
this Court. [p89]

When a major scheme, such as that under consideration in the present case, is planned and
implemented, there is always the need to weigh considerations of development against
environmental considerations, as their underlying juristic bases — the right to development
and the right to environmental protection — are important principles of current international
law.

In the present case we have, on the one hand, a scheme which, even in the attenuated form in
which it now remains, is important to the welfare of Slovakia and its people, who have
already strained their own resources and those of their predecessor State to the extent of over
two billion dollars to achieve these benefits. Slovakia, in fact, argues that the environment
would be improved through the operation of the Project as it would help to stop erosion of the
river bed, and that the scheme would be an effective protection against floods. Further,
Slovakia has traditionally been short of electricity, and the power generated would be
important to its economic development. Moreover, if the Project is halted in its tracks, vast
structural works constructed at great expense, even prior to the repudiation of the Treaty,
would be idle and unproductive, and would pose an economic and environmental problem in
themselves.

On the other hand, Hungary alleges that the Project produces, or is likely to produce,
ecological damage of many varieties, including harm to river bank fauna and flora, damage to
fish breeding, damage to surface water quality, eutrophication, damage to the groundwater
regime, agriculture, forestry and soil, deterioration of the quality of drinking water reserves,
and sedimentation. Hungary alleges that many of these dangers have already occurred and
more will manifest themselves, if the scheme continues in operation. In the material placed
before the Court, each of these dangers is examined and explained in considerable detail.

How does one handle these considerations? Does one abandon the Project altogether for fear
that the latter consequences might emerge? Does one proceed with the scheme because of the
national benefits it brings, regardless of the suggested environmental damage? Or does one
steer a course between, with due regard to both considerations, but ensuring always a
continuing vigilance in respect of environmental harm?

It is clear that a principle must be followed which pays due regard to both considerations. Is
there such a principle, and does it command recognition in international law? I believe the
answer to both questions is in the affirmative. The principle is the principle of sustainable
development and, in my view, it is an integral part of modern international law. It is clearly of
the utmost importance, both in this case and more generally.

I would observe, moreover, that both Parties in this case agree on the [p90] applicability to
this dispute of the principle of sustainable development. Thus, Hungary states in its pleadings
that:

"Hungary and Slovakia agree that the principle of sustainable development, as formulated in
the Brundtland Report, the Rio Declaration and Agenda 21 is applicable to this dispute . . .
International law in the field of sustainable development is now sufficiently well established,
and both Parties appear to accept this." (Reply of Hungary, paras. 1.45 and 1.47.)

Slovakia states that "inherent in the concept of sustainable development is the principle that
developmental needs are to be taken into account in interpreting and applying environmental
obligations" (Counter-Memorial of Slovakia, para. 9.53; see also paras. 9.54-9.59).

Their disagreement seems to be not as to the existence of the principle but, rather, as to the
way in which it is to be applied to the facts of this case (Reply of Hungary, para. 1.45).

The problem of steering a course between the needs of development and the necessity to
protect the environment is a problem alike of the law of development and of the law of the
environment. Both these vital and developing areas of law require, and indeed assume, the
existence of a principle which harmonizes both needs.

To hold that no such principle exists in the law is to hold that current law recognizes the
juxtaposition of two principles which could operate in collision with each other, without
providing the necessary basis of principle for their reconciliation. The untenability of the
supposition that the law sanctions such a state of normative anarchy suffices to condemn a
hypothesis that leads to so unsatisfactory a result.

Each principle cannot be given free rein, regardless of the other. The law necessarily contains
within itself the principle of reconciliation. That principle is the principle of sustainable
development.

This case offers a unique opportunity for the application of that principle, for it arises from a
Treaty which had development as its objective, and has been brought to a standstill over
arguments concerning environmental considerations.

The people of both Hungary and Slovakia are entitled to development for the furtherance of
their happiness and welfare. They are likewise entitled to the preservation of their human right
to the protection of their environment. Other cases raising environmental questions have been
considered by this Court in the context of environmental pollution arising from such sources
as nuclear explosions, which are far removed from development projects. The present case
thus focuses attention, as no other case has done in the jurisprudence of this Court, on the
question of the harmonization of developmental and environmental concepts. [p91]

(a) Development as a Principle of International Law

Article 1 of the Declaration on the Right to Development, 1986, asserted that "The right to
development is an inalienable human right." This Declaration had the overwhelming support
of the international communityFN1 and has been gathering strength since thenFN2. Principle
3 of the Rio Declaration, 1992, reaffirmed the need for the right to development to be
fulfilled.

-----------------------------------------------------------------------------------------------------------------
----
FN1 146 votes in favour, with one vote against.
FN2 Many years prior to the Declaration of 1986, this right had received strong support in the
field of human rights. As early as 1972, at the Third Session of the Institut international de
droits de l'homme, Judge Kéba Mbaye, President of the Supreme Court of Senegal and later to
be a Vice-President of this Court, argued strongly that such a right existed. He adduced
detailed argument in support of his contention from economic, political and moral
standpoints. (See K. Mbaye, "Le droit au développement comme un droit de l'homme". Revue
des droits de l'homme, 1972, Vol. 5, p. 503.)
Nor was the principle without influential voices in its support from the developed world as
well. Indeed, the genealogy of the idea can be traced much further back even to the
conceptual stages of the Universal Declaration of Human Rights, 1948.
Mrs. Eleanor Roosevelt, who from 1946 to 1952 served as the Chief United States
representative to Committee III, Humanitarian, Social and Cultural Affairs, and was the first
Chairperson, from 1946 to 1951. of the United Nations Human Rights Commission, had
observed in 1947, "We will have to bear in mind that we are writing a bill of rights for the
world and that one of the most important rights is the opportunity for development." (M. Glen
Johnson, "The Contribution of Eleanor and Franklin Roosevelt to the Development of the
International Protection for Human Rights", Human Rights Quarterly, 1987, Vol. 9, p. 19,
quoting Mrs. Roosevelt's column, "My Day". 6 February 1947.)
General Assembly resolution 642 (VII) of 1952, likewise, referred expressly to "integrated
economic and social development".
-----------------------------------------------------------------------------------------------------------------
----

"Development" means, of course, development not merely for the sake of development and
the economic gain it produces, but for its value in increasing the sum total of human
happiness and welfareFN3. That could perhaps be called the first principle of the law relating
to development.

-----------------------------------------------------------------------------------------------------------------
----
FN3 The Preamble to the Declaration on the Right to Development (1986) recites that
development is a comprehensive, economic, social and cultural process which aims at the
constant improvement and well-being of the entire population and of all individuals on the
basis of their active, free and meaningful participation in development and in the fair
distribution of the benefits resulting therefrom.
-----------------------------------------------------------------------------------------------------------------
----

To the end of improving the sum total of human happiness and welfare, it is important and
inevitable that development projects of various descriptions, both minor and major, will be
launched from time to time in all parts of the world.

(b) Environmental Protection as a Principle of International Law

The protection of the environment is likewise a vital part of contemporary human rights
doctrine, for it is a sine qua non for numerous human rights such as the right to health and the
right to life itself. It is [p92] scarcely necessary to elaborate on this, as damage to the
environment can impair and undermine all the human rights spoken of in the Universal
Declaration and other human rights instruments.

While, therefore, all peoples have the right to initiate development projects and enjoy their
benefits, there is likewise a duty to ensure that those projects do not significantly damage the
environment.

(c) Sustainable Development as a Principle of International Law

After the early formulations of the concept of development, it has been recognized that
development cannot be pursued to such a point as to result in substantial damage to the
environment within which it is to occur. Therefore development can only be prosecuted in
harmony with the reasonable demands of environmental protection. Whether development is
sustainable by reason of its impact on the environment will, of course, be a question to be
answered in the context of the particular situation involved.

It is thus the correct formulation of the right to development that that right does not exist in
the absolute sense, but is relative always to its tolerance by the environment. The right to
development as thus refined is clearly part of modern international law. It is compendiously
referred to as sustainable development.

The concept of sustainable development can be traced back, beyond the Stockholm
Conference of 1972, to such events as the Founex meeting of experts in Switzerland in June
1971FN4; the conference on environment and development in Canberra in 1971; and United
Nations General Assembly resolution 2849 (XXVI). It received a powerful impetus from the
Stockholm Declaration which, by Principle 11, stressed the essentiality of development as
well as the essentiality of bearing environmental considerations in mind in the developmental
process. Moreover, many other Principles of that DeclarationFN5 provided a setting for the
development of the concept of sustainable developmentFN6 and more than one-third of the
Stockholm Declaration related to the harmonization of environment and developmentFN7.
The Stockholm Conference also produced an Action Plan for the Human EnvironmentFN8.

-----------------------------------------------------------------------------------------------------------------
----
FN4 See Sustainable Development and International Law, Winfried Lang (ed.), 1995, p. 143.
FN5 For example, Principles 2, 3, 4, 5, 8, 9, 12, 13 and 14.
FN6 These principles are thought to be based to a large extent on the Founex Report — see
Sustainable Development and International Law, Winfried Lang (ed.), supra, p. 144.
FN7 Ibid.
FN8 Action Plan for the Human Environment, United Nations doc. A/CONF.48/14/ Rev.l.
See especially Chapter II which devoted its final section to development and the environment.
-----------------------------------------------------------------------------------------------------------------
----

[p93]

The international community had thus been sensitized to this issue even as early as the early
1970s, and it is therefore no cause for surprise that the 1977 Treaty, in Articles 15 and 19,
made special reference to environmental considerations. Both Parties to the Treaty recognized
the need for the developmental process to be in harmony with the environment and introduced
a dynamic element into the Treaty which enabled the Joint Project to be kept in harmony with
developing principles of international law.

Since then, it has received considerable endorsement from all sections of the international
community, and at all levels.

Whether in the field of multilateral treatiesFN9, international declarationsFN10; the

foundation documents of international organizationsFN11; the practices of international
financial institutionsFN12; regional declarations and planning documentsFN13; or State
practiceFN14, there is a wide and general recognition of the concept. The Bergen ECE
Ministerial Declaration on Sustainable Development of 15 May 1990, resulting from a
meeting of [p94] Ministers from 34 countries in the ECE region, and the Commissioner for
the Environment of the European Community, addressed "The challenge of sustainable
development of humanity" (para. 6), and prepared a Bergen Agenda for Action which
included a consideration of the Economics of Sustainability, Sustainable Energy Use,
Sustainable Industrial Activities, and Awareness Raising and Public Participation. It sought to
develop "sound national indicators for sustainable development" (para. 13 (b)) and sought to
encourage investors to apply environmental standards required in their home country to
investments abroad. It also sought to encourage UNEP, UNIDO, UNDP, IBRD, ILO, and
appropriate international organizations to support member countries in ensuring
environmentally sound industrial investment, observing that industry and government should
co-operate for this purpose (para. 15 (f))FN15. A Resolution of the Council of Europe, 1990,
propounded a European Conservation Strategy to meet, inter alia, the legitimate needs and
aspirations of all Europeans by seeking to base economic, social and cultural development on
a rational and sustainable use of natural resources, and to suggest how sustainable
development can be achievedFN16.

-----------------------------------------------------------------------------------------------------------------
----
FN9 For example, the United Nations Convention to Combat Desertification (The United
Nations Convention to Combat Desertification in those Countries Experiencing Serious
Droughts and/or Desertification, Particularly in Africa), 1994, Preamble, Art. 9 (1); the United
Nations Framework Convention on Climate Change, 1992 (ILM, 1992, Vol. XXXI, p. 849.
Arts. 2 and 3); and the Convention on Biological Diversity (ILM, 1992. Vol. XXXI, p. 818,
Preamble, Arts. 1 and 10 — "sustainable use of biodiversity").
FN10 For example, the Rio Declaration on Environment and Development, 1992, emphasizes
sustainable development in several of its Principles (e.g., Principles 4, 5, 7, 8, 9, 20, 21, 22, 24
and 27 refer expressly to "sustainable development" which can be described as the central
concept of the entire document); and the Copenhagen Declaration, 1995 (paras. 6 and 8),
following on the Copenhagen World Summit for Social Development, 1995.
FN11 For example, the North American Free Trade Agreement (Canada, Mexico, United
States) (NAFTA, Preamble, ILM, 1993, Vol. XXXII, p. 289); the World Trade Organization
(WTO) (paragraph 1 of the Preamble of the Marrakesh Agreement of 15 April 1994,
establishing the World Trade Organization, speaks of the "optimal use of the world's
resources in accordance with the objective of sustainable development" — ILM, 1994, Vol.
XXXIII. pp. 1143-1144); and the European Union (Art. 2 of the ECT).
FN12 For example, the World Bank Group, the Asian Development Bank, the African
Development Bank, the Inter-American Development Bank, and the European Bank for
Reconstruction and Development all subscribe to the principle of sustainable development.
Indeed, since 1993, the World Bank has convened an annual conference related to advancing
environmentally and socially sustainable development (ESSD).
FDN13 For example, the Langkawi Declaration on the Environment, 1989, adopted by the
"Heads of Government of the Commonwealth representing a quarter of the world's
population" which adopted "sustainable development" as its central theme; Ministerial
Declaration on Environmentally Sound and Sustainable Development in Asia and the Pacific,
Bangkok, 1990 (doc. 38a, p. 567); and Action Plan for the Protection and Management of the
Marine and Coastal Environment of the South Asian Seas Region. 1983 (para. 10:
"sustainable, environmentally sound development").
FN14 For example, in 1990, the Dublin Declaration by the European Council on the Envi-
ronmental Imperative stated that there must be an acceleration of effort to ensure that
economic development in the Community is "sustainable and environmentally sound"
(Bulletin of the European Communities, 6, 1990, Ann. II, p. 18). It urged the Community and
Member States to play a major role to assist developing countries in their efforts to achieve
"long-term sustainable development" (ibid., p. 19). It said, in regard to countries of Central
and Eastern Europe, that remedial measures must be taken "to ensure that their future
economic development is sustainable" (ibid.). It also expressly recited that:
"As Heads of State or Government of the European Community, . . . [w]e intend that action
by the Community and its Member States will be developed ... on the principles of sustainable
development and preventive and precautionary action." (Ibid., Conclusions of the Presidency,
Point 1.36, pp. 17-18.)
FN15 Basic Documents of International Environmental Law. Harald Hohmann (ed.), Vol. 1,
1992, p. 558.
FN16 Ibid., p. 598.
-----------------------------------------------------------------------------------------------------------------
----

The concept of sustainable development is thus a principle accepted not merely by the
developing countries, but one which rests on a basis of worldwide acceptance.

In 1987, the Brundtland Report brought the concept of sustainable development to the
forefront of international attention. In 1992, the Rio Conference made it a central feature of its
Declaration, and it has been a focus of attention in all questions relating to development in the
developing countries. [p95]

The principle of sustainable development is thus a part of modern international law by reason
not only of its inescapable logical necessity, but also by reason of its wide and general
acceptance by the global community.

The concept has a significant role to play in the resolution of environmentally related
disputes. The components of the principle come from well-established areas of international
law — human rights, State responsibility, environmental law, economic and industrial law,
equity, territorial sovereignty, abuse of rights, good neighbourliness — to mention a few. It
has also been expressly incorporated into a number of binding and far-reaching international
agreements, thus giving it binding force in the context of those agreements. It offers an
important principle for the reso-lution of tensions between two established rights. It reaffirms
in the arena of international law that there must be both development and environmental
protection, and that neither of these rights can be neglected.

The general support of the international community does not of course mean that each and
every member of the community of nations has given its express and specific support to the
principle — nor is this a requirement for the establishment of a principle of customary
international law.
As Brierly observes:
"It would hardly ever be practicable, and all but the strictest of positivists admit that it is not
necessary, to show that every state has recognized a certain practice, just as in English law the
existence of a valid local custom or custom of trade can be established without proof that
every individual in the locality, or engaged in the trade, has practised the custom. This test of
general recognition is necessarily a vague one; but it is of the nature of customary law,
whether national or international . . ."FN17

------------------------------------------------------------------------------------------------------------
FN17 J. Brierly, The Law of Nations, 6th ed., 1963, p. 61; emphasis added.
------------------------------------------------------------------------------------------------------------

Evidence appearing in international instruments and State practice (as in development

assistance and the practice of international financial institutions) likewise amply supports a
contemporary general acceptance of the concept.

Recognition of the concept could thus, fairly, be said to be worldwideFN18.

-----------------------------------------------------------------------------------------------------------------
----
FN18 See, further, L. Krämer, EC Treaty and Environmental Law, 2nd ed., 1995, p. 63,
analysing the environmental connotation in the word "sustainable" and tracing it to the
Brundtland Report.
-----------------------------------------------------------------------------------------------------------------
----

[p96]
(d) The Need for International Law to Draw upon the World's Diversity of Cultures in
Harmonizing Development and Environmental Protection

This case, which deals with a major hydraulic project, is an opportunity to tap the wisdom of
the past and draw from it some principles which can strengthen the concept of sustainable
development, for every development project clearly produces an effect upon the environment,
and humanity has lived with this problem for generations.

This is a legitimate source for the enrichment of international law, which source is perhaps
not used to the extent which its importance warrants.

In drawing into international law the benefits of the insights available from other cultures, and
in looking to the past for inspiration, international environmental law would not be departing
from the traditional methods of international law, but would, in fact, be following in the path
charted out by Grotius. Rather than laying down a set of principles a priori for the new
discipline of international law, he sought them also a posteriori from the experience of the
past, searching through the whole range of cultures available to him for this purposeFN19.
From them, he drew the durable principles which had weathered the ages, on which to build
the new international order of the future. Environmental law is now in a formative stage, not
unlike international law in its early stages. A wealth of past experience from a variety of
cultures is available to it. It would be pity indeed if it were left untapped merely because of
attitudes of formalism which see such approaches as not being entirely de rigueur.

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----
FN19 Julius Stone, Human Law and Human Justice, 1965, p. 66: "It was for this reason that
Grotius added to his theoretical deductions such a mass of concrete examples from history."
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----

I cite in this connection an observation of Sir Robert Jennings that, in taking note of different
legal traditions and cultures, the International Court (as it did in the Western Sahara case):

"was asserting, not negating, the Grotian subjection of the totality of international relations to
international law. It seems to the writer, indeed, that at the present juncture in the
development of the international legal system it may be more important to stress the
imperative need to develop international law to comprehend within itself the rich diversity of
cultures, civilizations and legal traditions . . ."FN20

-----------------------------------------------------------------------------------------------------------------
-------------------------------------------------
FN20 Sir Robert Y. Jennings, "Universal International Law in a Multicultural World", in
International Law and the Grotian Heritage: A Commemorative Colloquium on the Occa-sion
of the Fourth Centenary of the Birth of Hugo Grotius, edited and published by the T.M.C.
Asser Institute, The Hague, 1985, p. 195.
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-------------------------------------------------
Moreover, especially at the frontiers of the discipline of international [p97] law, it needs to be
multi-disciplinary, drawing from other disciplines such as history, sociology, anthropology,
and psychology such wisdom as may be relevant for its purpose. On the need for the
international law of the future to be interdisciplinary, 1 refer to another recent extra-judicial
observation of that distinguished former President of the Court that:

"there should be a much greater, and a practical, recognition by international lawyers that the
rule of law in international affairs, and the establishment of international justice, are inter-
disciplinary subjects"FN21.

------------------------------------------------------------------------------------------------------------
FN21"International Lawyers and the Progressive Development of International Law", Theory
of International Law at the Threshold of the 2Isl Century, Jerzy Makarczyk (ed.), 1996, p.
423.
------------------------------------------------------------------------------------------------------------
Especially where this Court is concerned, "the essence of true universality"FN22 of the
institution is captured in the language of Article 9 of the Statute of the International Court of
Justice which requires the "representation of the main forms of civilization and of the
principal legal systems of the world" (emphasis added). The struggle for the insertion of the
italicized words in the Court's Statute was a hard one, led by the Japanese representative, Mr.
AdatciFN23, and, since this concept has thus been integrated into the structure and the Statute
of the Court, I see the Court as being charged with a duty to draw upon the wisdom of the
world's several civilizations, where such a course can enrich its insights into the matter before
it. The Court cannot afford to be monocultural, especially where it is entering newly
developing areas of law.

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-----
FN22 Jennings, "Universal International Law in a Multicultural World", op. eit., p. 189.
FN23 On this subject of contention, see Proves- Verbaux of the Proceedings of the
Committee. 16 June-24 July 1920, esp. p. 136.
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----

This case touches an area where many such insights can be drawn to the enrichment of the
developing principles of environmental law and to a clarification of the principles the Court
should apply.

It is in this spirit that I approach a principle which, for the first time in its jurisprudence, the
Court is called upon to apply — a principle which will assist in the delicate task of balancing
two considerations of enormous importance to the contemporary international scene and,
potentially, of even greater importance to the future.

(e) Some Wisdom from the Past Relating to Sustainable Development

There are some principles of traditional legal systems that can be woven into the fabric of
modern environmental law. They are specially pertinent to the concept of sustainable
development which was well [p98] recognized in those systems. Moreover, several of these
systems have particular relevance to this case, in that they relate to the harnessing of streams
and rivers and show a concern that these acts of human interference with the course of nature
should always be conducted with due regard to the protection of the environment. In the
context of environmental wisdom generally, there is much to be derived from ancient
civilizations and traditional legal systems in Asia, the Middle East, Africa, Europe, the
Americas, the Pacific, and Australia — in fact, the whole world. This is a rich source which
modern environmental law has left largely untapped.

As the Court has observed, "Throughout the ages mankind has, for economic and other
reasons, constantly interfered with nature." (Judgment, para. 140.)

The concept of reconciling the needs of development with the protection of the environment
is thus not new. Millennia ago these concerns were noted and their twin demands well
reconciled in a manner so meaningful as to carry a message to our age.

I shall start with a system with which I am specially familiar, which also happens to have
specifically articulated these two needs — development and environmental protection — in
its ancient literature. I refer to the ancient irrigation-based civilization of Sri LankaFN24. It is
a system which, while recognizing the need for development and vigorously implementing
schemes to this end, at the same time specifically articulated the need for environmental
protection and ensured that the technology it employed paid due regard to environmental
considerations. This concern for the environment was reflected not only in its literature and its
technology, but also in its legal system, for the felling of certain forests was prohibited, game
sanctuaries were established, and royal edicts decreed that the natural resource of water was to
be used to the last drop without any wastage.

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FN24 This was not an isolated civilization, but one which maintained international relations
with China, on the one hand, and with Rome (1st c.) and Byzantium (4th c), on the other. The
presence of its ambassadors at the Court of Rome is recorded by Pliny (lib. vi c. 24), and is
noted by Grotius — De Jure Prucclae Commenlarius, G. L. Williams and W. H. Zeydol
(eds.). Classics of International Law, James B. Scott (ed.), 1950, pp. 240-241. This diplomatic
representation also receives mention in world literature (e.g., Milton, Paradise Regained,
Book IV). See also Grotius' reference to the detailed knowledge of Ceylon possessed by the
Romans — Grotius, Mare Liberum (Freedom of the Seas), trans. R. van Deman Magoffin, p.
12. The island was known as Taprobane to the Greeks, Serendib to the Arabs, Lanka to the
Indians, Ceilao to the Portuguese, and Zeylan to the Dutch. Its trade with the Roman Empire
and the Far East was noted by Gibbon
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----

This system, some details of which I shall touch onFN25, is described by [p99] Arnold
Toynbee in his panoramic survey of civilizations. Referring to it as an "amazing system of
waterworks"FN26, Toynbee describesFN27 how hill streams were tapped and their water
guided into giant storage tanks, some of them four thousand acres in extentFN28, from which
channels ran on to other larger tanksFN29. Below each great tank and each great channel
were hundreds of little tanks, each the nucleus of a village.

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FN25 It is an aid to the recapitulation of the matters mentioned that the edicts and works I
shall refer to have been the subject of written records, maintained contemporaneously and
over the centuries. See footnote 38 below.
FN26 Arnold J. Toynbee, A Study of History, Somervell's Abridgment, 1960, Vol. 1, p. 257.
FN27 Ibid., p. 81, citing John Still, The Jungle Tide.
FN28 Several of these are still in use, e.g., the Tissawewa (3rd c. BC); the Nuwarawewa (3rd
c. BC); the Minneriya tank (275 AD); the Kalawewa (5th c. AD); and the Parakrama Samudra
(Sea of Parakrama, 11th c. AD).
FN29 The technical sophistication of this irrigation system has been noted also in Joseph
Needham's monumental work on Science and Civilization in China. Needham, in describing
the ancient irrigation works of China, makes numerous references to the contemporary
irrigation works of Ceylon, which he discusses at some length. See especially, Vol. 4, Physics
and Physical Technology, 1971, pp. 368 et seq. Also p. 215: "We shall see how skilled the
ancient Ceylonese were in this art."
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----

The concern for the environment shown by this ancient irrigation system has attracted study
in a recent survey of the Social and Environmental Effects of Large DamsFN30, which
observes that among the environmentally related aspects of its irrigation systems were the
"erosion control tank" which dealt with the problem of silting by being so designed as to
collect deposits of silt before they entered the main water storage tanks. Several erosion
control tanks were associated with each village irrigation system. The significance of this can
well be appreciated in the context of the present case, where the problem of silting has
assumed so much importance.

-----------------------------------------------------------------------------------------------------------------
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FN30 Edward Goldsmith and Nicholas Hildyard, The Social and Environmental Effects of
Large Dams, 1985, pp. 291-304.
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----

Another such environmentally related measure consisted of the "forest tanks" which were
built in the jungle above the village, not for the purpose of irrigating land, but to provide
water to wild animalsFN31.

-----------------------------------------------------------------------------------------------------------------
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FN31 For these details, see Goldsmith and Hildyard, ibid., pp. 291 and 296. The same authors
observe:
"Sri Lanka is covered with a network of thousands of man-made lakes and ponds, known
locally as tanks (after tanque, the Portuguese word for reservoir). Some are truly massive,
many are thousands of years old, and almost all show a high degree of sophistication in their
construction and design. Sir James Emerson Tennent, the nineteenth century historian,
marvelled in particular at the numerous channels that were dug underneath the bed of each
lake in order to ensure that the flow of water was 'constant and equal as long as any water
remained in the tank'."
-----------------------------------------------------------------------------------------------------------------
---
[p100]
This system of tanks and channels, some of them two thousand years old, constitute in their
totality several multiples of the irrigation works involved in the present scheme. They
constituted development as it was understood at the time, for they achieved in Toynbee's
words, "the arduous feat of conquering the parched plains of Ceylon for agriculture"FN32.
Yet they were executed with meticulous regard for environmental concerns, and showed that
the concept of sustainable development was consciously practised over two millennia ago
with much success.

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FN32 Toynbee, op. cit., p. 81. Andrew Carnegie, the donor of the Peace Palace, the seat of
this Court, has described this ancient work of development in the following terms:
"The position held by Ceylon in ancient days as the great granary of Southern Asia explains
the precedence accorded to agricultural pursuits. Under native rule the whole island was
brought under irrigation by means of artificial lakes, constructed by dams across ravines,
many of them of great extent — one still existing is twenty miles in circumference — but the
system has been allowed to fall into decay." (Andrew Carnegie, Round the World, 1879 (1933
ed.), pp. 155-160.)
-----------------------------------------------------------------------------------------------------------------
----

Under this irrigation system, major rivers were dammed and reservoirs created, on a scale and
in a manner reminiscent of the damming which the Court saw on its inspection of the dams in
this case.
This ancient concept of development was carried out on such a large scale that, apart from the
major reservoirsFN33, of which there were several[p101] dozen, between 25,000 and 30,000
minor reservoirs were fed from these reservoirs through an intricate network of canalsFN34.

-----------------------------------------------------------------------------------------------------------------
----
FN33 The first of these major tanks was thought to have been constructed in 504 BC (Sir
James Emerson Tennent, Ceylon, 1859, Vol. I, p. 367). A few examples, straddling 15
centuries, were:
— the Vavunik-kulam (3rd c. BC) (1,975 acres water surface, 596 million cubic feet water
capacity); the Pavatkulam (3rd or 2nd c. BC) (2,029 acres water surface, 770 million cubic
feet water capacity) — Parker, Ancient Ceylon, 1909. pp. 363, 373;
— the Tissawewa (3rd c. BC); and the Nuwarawewa (3rd c. BC), both still in service and still
supplying water to the ancient capital Anuradhapura, which is now a provincial capital;
— the Minneriya tank (275 AD) ("The reservoir upwards of twenty miles in circumference ...
the great embankment remains nearly perfect") (Tennent, op. cil.. Vol. II, p. 600);
— the Topawewa (4th c. AD), area considerably in excess of 1,000 acres;
— the Kaluwewa (5th c. AD) — embankment 3.25 miles long, rising to a height of 40 feet,
tapping the river Kala Oya and supplying water to the capital Anuradhapura through a canal
50 miles in length;
— the Yodawewa (5th c. AD). Needham describes this as "A most grandiose conception . . .
the culmination of Ceylonese hydraulics ... an artificial lake with a six-and-a-half mile
embankment on three sides of a square, sited on a sloping plain and not in a river valley at
all." It was fed by a 50-mile canal from the river Malvatu-Oya;
— the Parakrama Samudra (Sea of Parakrama) (11th c. AD), embankment 9 miles long, up to
40 feet high, enclosing 6,000 acres of water area. (Brohier, Ancient Irrigation Works in
Ceylon, 1934, p. 9.)
FN34 On the irrigation systems, generally, see H. Parker, Ancient Ceylon, op. cit.: R. L.
Brohier, Ancient Irrigation Works in Ceylon, 1934; Edward Goldsmith and Nicholas
Hildyard, op. cit., pp. 291-304. Needham, describing the ancient canal system of China,
observes that "it was comparable only with the irrigation contour canals of Ceylon, not with
any work in Europe" (op. cit., Vol. 4, p. 359).
-----------------------------------------------------------------------------------------------------------------
----

The philosophy underlying this gigantic systemFN35, which for upwards of two thousand
years served the needs of man and nature alike, was articulated in a famous principle laid
down by an outstanding monarchFN36 that "not even a little water that comes from the rain is
to flow into the ocean without being made useful to man"FN37. According to the ancient
chroniclesFN38, these works were undertaken "for the benefit of the country", and "out of
compassion for all living creatures"FN39. This complex of irrigation works was aimed at
making the entire country a granary. They embodied the concept of development par
excellence.

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FN35"so vast were the dimensions of some of these gigantic tanks that many still in existence
cover an area from fifteen to twenty miles in circumference" (Tennent, op. cit., Vol. I, p. 364).
FN36 King Parakrama Bahu (1153-1 186 AD). This monarch constructed or restored 163
major tanks, 2,376 minor tanks, 3,910 canals, and 165 dams. His masterpiece was the Sea of
Parakrama, referred to in footnote 33. All of this was conceived within the environmental
philosophy of avoiding any wastage of natural resources.
FN37 See Toynbee's reference to this:
"The idea underlying the system was very great. It was intended by the tank-building kings
that none of the rain which fell in such abundance in the mountains should reach the sea
without paying tribute to man on the way." (Op. cit., p. 81.)
FN38 The Mahavamsa, Tumour's translation. Chap. XXXVII, p. 242. The Mahavamsa was
the ancient historical chronicle of Sri Lanka, maintained contemporaneously by Buddhist
monks, and an important source of dating for South Asian history. Commencing at the close
of the 4th century AD, and incorporating earlier chronicles and oral traditions dating back a
further eight centuries, this constitutes a continuous record for over 15 centuries — see The
Mahavamsa or The Great Chronicle of Ceylon, translated into English by Wilhelm Geiger,
1912, Introduction, pp. ix-xii. The King's statement, earlier referred to, is recorded in the
Mahavamsa as follows:
"In the realm that is subject to me are . . . but few fields which are dependent on rivers with
permanent flow . . . Also by many mountains, thick jungles and by widespread swamps my
kingdom is much straitened. Truly, in such a country not even a little water that comes from
the rain must flow into the ocean without being made useful to man." (Ibid., Chap. LXVIII,
verses 8-12. )
FN39 See also, on this matter, Emerson Tennent, op. cit., Vol. I, p. 311
-----------------------------------------------------------------------------------------------------------------
----

Just as development was the aim of this system, it was accompanied by a systematic
philosophy of conservation dating back to at least the third century BC. The ancient
chronicles record that when the King (Devan-ampiya Tissa, 247-207 BC) was on a hunting
trip (around 223 BC), the ArahatFN40 Mahinda, son of the Emperor Asoka of India, preached
to him [p102] a sermon on Buddhism which converted the king. Here are excerpts from that
sermon:

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FN40 A person who has attained a very high state of enlightenment. For its more technical
meaning, see Walpola Rahula. History of Buddhism in Ceylon, 1956, pp. 217-221.
-----------------------------------------------------------------------------------------------------------------
----

"O great King, the birds of the air and the beasts have as equal a right to live and move about
in any part of the land as thou. The land belongs to the people and all living beings; thou art
only the guardian of it."FN41

-------------------------------------------------------------------------------------------------------------
FN41 This sermon is recorded in The Mahavamsa, Chap. XIV.
------------------------------------------------------------------------------------------------------------

This sermon, which indeed contained the first principle of modern environmental law — the
principle of trusteeship of earth resources — caused the king to start sanctuaries for wild
animals — a concept which continued to be respected for over twenty centuries. The
traditional legal system's protection of fauna and flora, based on this Buddhist teaching,
extended well into the eighteenth centuryFN42

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FN42 See K. N. Jayatilleke, "The Principles of International Law in Buddhist Doctrine",
Recueil des cours de l'Académie de droit international, Vol. 120, 1967, p. 558.
-----------------------------------------------------------------------------------------------------------------
----.
The sermon also pointed out that even birds and beasts have a right to freedom from
fearFN43.
-----------------------------------------------------------------------------------------------------------------
-----
FN43 For this idea in the scriptures of Buddhism, see Digha Nikaya, III, Pali Text Society, p.
850.
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----

The notion of not causing harm to others and hence sic utere tuo ut alienum non laedas was a
central notion of Buddhism. It translated well into environmental attitudes. "Alienum " in this
context would be extended by Buddhism to future generations as well, and to other
component elements of the natural order beyond man himself, for the Buddhist concept of
duty had an enormously long reach.

This marked concern with environmental needs was reflected also in royal edicts, dating back
to the third century BC, which ordained that certain primeval forests should on no account be
felled. This was because adequate forest cover in the highlands was known to be crucial to the
irrigation system as the mountain jungles intercepted and stored the monsoon rainsFN44.
They attracted the rain which fed the river and irrigation systems of the country, and were
therefore considered vital.

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FN44 Goldsmith and Hildyard, op. cit., p. 299. See, also, R. L. Brohier, "The Interrelation of
Groups of Ancient Reservoirs and Channels in Ceylon", Journal of the Royal Asiatic Society
(Ceylon), 1937, Vol. 34, No. 90, p. 65. Brohier's study is one of the foremost authorities on
the subject.
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Environmental considerations were reflected also in the actual work of construction and
engineering. The ancient engineers devised an answer to the problem of silting (which has
assumed much importance in the present case), and they invented a device (the bisokotuwa or
valve pit), the counterpart of the sluice, for dealing with this environmental prob-
[p103]lemFN45, by controlling the pressure and the quantity of the outflow of water when it
was released from the reservoirFN46. Weirs were also built, as in the case of the construction
involved in this case, for raising the levels of river water and regulating its flowFN47.

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FN45 H. Parker, Ancient Ceylon, op. cit., p. 379:
"Since about the middle of the last century, open wells, called 'valve towers' when they stand
clear of the embankment or 'valve pits' when they are in it, have been built in numerous
reservoirs in Europe. Their duty is to hold the valves, and the lifting-gear for working them,
by means of which the outward flow of water is regulated or totally stopped. Such also was
the function of the bisokotuwa of the Sinhalese engineers; they were the first inventors of the
valve-pit more than 2,100 years ago."
FN46 H. Parker, op. cit. Needham observes:
"Already in the first century AD they [the Sinhalese engineers] understood the principle of the
oblique weir . . . But perhaps the most striking invention was the intake-towers or valve
towers (Bisokotuwa) which were fitted in the reservoirs perhaps from the 2nd Century BC
onwards, certainly from the 2nd Century AD ... In this way silt and scum-free water could be
obtained and at the same time the pressure-head was so reduced as to make the outflow
controllable." (Joseph Needham, Science and Civilization in China, op. cit.. Vol. 4, p. 372.)
FN47 K. M. de Silva, A History of Sri Lanka, 1981, p. 30.
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This juxtaposition in this ancient heritage of the concepts of development and environmental
protection invites comment immediately from those familiar with it. Anyone interested in the
human future would perceive the connection between the two concepts and the manner of
their reconciliation.

Not merely from the legal perspective does this become apparent, but even from the
approaches of other disciplines.

Thus Arthur C. Clarke, the noted futurist, with that vision which has enabled him to bring
high science to the service of humanity, put his finger on the precise legal problem we are
considering when he observed: "the small Indian Ocean island . . . provides textbook
examples of many modern dilemmas: development versus environment"FN48, and proceeds
immediately to recapitulate the famous sermon, already referred to, relating to the trusteeship
of land, observing, "For as King Deva-nampiya Tissa was told three centuries before the birth
of Christ, we are its guardians — not its owners."FN49

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FN48 Arthur C. Clarke, "Sri Lanka's Wildlife Heritage", National Geographic, August 1983,
No. 2, p. 254; emphasis added.
FN49 Arthur C. Clarke has also written:

"Of all Ceylon's architectural wonders, however, the most remarkable — and certainly the
most useful — is the enormous irrigation system which, for over two thousand years, has
brought prosperity to the rice farmers in regions where it may not rain for six months at a
time. Frequently ruined, abandoned and rebuilt, this legacy of the ancient engineers is one of
the island's most precious possessions. Some of its artificial lakes are ten or twenty kilometres
in circumference, and abound with birds and wildlife." (The View from Serendip, 1977, p.
121.)
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The task of the law is to convert such wisdom into practical terms —[p104] and the law has
often lagged behind other disciplines in so doing. Happily for international law, there are
plentiful indications, as recited earlier in this opinion, of that degree of "general recognition
among states of a certain practice as obligatory"FN50 to give the principle of sustainable
development the nature of customary law.

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FN50 J. Brierly, The Law of Nations, op. cit., p. 61.
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This reference to the practice and philosophy of a major irrigation civilization of the pre-
modern worldFN51 illustrates that when technology on this scale was attempted it was
accompanied by a due concern for the environment. Moreover, when so attempted, the
necessary response from the traditional legal system, as indicated above, was one of
affirmative steps for environmental protection, often taking the form of royal decrees, apart
from the practices of a sophisticated system of customary law which regulated the manner in
which the irrigation facilities were to be used and protected by individual members of the
public.

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FN51"It is possible that in no other part of the world are there to be found within the same
space the remains of so many works for irrigation, which are at the same time of such great
antiquity and of such vast magnitude as in Ceylon . . ." (Bailey, Report on Irrigation in Uva,
1859; see also R. L. Brohier, Ancient Irrigation Works in Ceylon, op. cit.,
P. l);
"No people in any age or country had so great practice and experience in the construction of
works for irrigation." (Sir James Emerson Tennent, op. cit.. Vol. I, p. 468);
"The stupendous ruins of their reservoirs are the proudest monuments which remain of the
former greatness of their country . . . Excepting the exaggerated dimensions of Lake Moeris in
Central Egypt, and the mysterious 'Basin of Al Aram' ... no similar constructions formed by
any race, whether ancient or modern, exceed in colossal magnitude the stupendous tanks of
Ceylon." (Sir James Emerson Tennent, quoted in Brohier, supra, p. 1.)
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The foregoing is but one illustrative example of the concern felt by prior legal systems for the
preservation and protection of the environment. There are other examples of complex
irrigation systems that have sustained themselves for centuries, if not millennia.

My next illustration comes from two ancient cultures of sub-Saharan Africa — those of the
Sonjo and the Chagga, both Tanzanian tribesFN52. Their complicated networks of irrigation
furrows, collecting water from the mountain streams and transporting it over long distances to
the fields below, have aroused the admiration of modern observers not merely for their
technical sophistication, but also for the durability of the complex irrigation systems they
fashioned. Among the Sonjo, it was considered to be the sacred duty of each generation to
ensure that the system was kept in good repair and all able-bodied men in the villages were
expected to take partFN53. The system comprised a fine network of small canals, reinforced
by a superimposed network of larger channels. The water did [p105] not enter the irrigation
area unless it was strictly required, and was not allowed to pass through the plots in the rainy
season. There was thus no over-irrigation, salinity was reduced, and water-borne diseases
avoidedFN54

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FN52 Goldsmith and Hildyard, op. cit., pp. 282-291.
FN53 Ibid., pp. 284-285.
FN54 Goldsmith and Hildyard, op. cit., p. 284.
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Sir Charles Dundas, who visited the Chagga in the first quarter of this century, was much
impressed by the manner in which, throughout the long course of the furrows, society was so
organized that law and order prevailedFN55. Care of the furrows was a prime social duty, and
if a furrow was damaged, even accidentally, one of the elders would sound a horn in the
evening (which was known as the call to the furrows), and next morning everyone would
leave their normal work and set about the business of repair. The furrow was a social asset
owned by the clanFN57.

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FN55 Sir Charles Dundas, Kilimanjaro and lis Peoples, 1924, p. 262.
FN56 Goldsmith and Hildyard, op. cit., p. 289.
FN57 See further Fidelio T. Masao, "The Irrigation System in Uchagga: An Ethno-Historical
Approach", Tanzania Notes and Records, No. 75, 1974.
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Another example is that of the qanatsFN58 of Iran, of which there were around 22,000,
comprising more than 170,000 milesFN59 of underground irrigation channels built thousands
of years ago, and many of them still functioningFN60. Not only is the extent of this system
remarkable, but also the fact that it has functioned for thousands of years and, until recently,
supplied Iran with around 75 per cent of the water used for both irrigation and domestic
purposes.

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FN58 Qanats comprise a series of vertical shafts dug down to the aquifer and joined by a
horizontal canal — see Goldsmith and Hildyard, op. cit., p. 277.
FN59 Some idea of the immensity of this work can be gathered from the fact that it would
cost around one million dollars to build an eight kilometres qanat with an average tunnel
depth of 15 metres (ibid., p. 280).
FN60 Ibid., p. 277.
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----

By way of contrast, where the needs of the land were neglected, and massive schemes
launched for urban supply rather than irrigation, there was disaster. The immense works in the
Euphrates Valley in the third millennium BC aimed not at improving the irrigation system of
the local tribesmen, but at supplying the requirements of a rapidly growing urban society
(e.g., a vast canal built around 2400 BC by King Entemenak) led to seepage, flooding and
over-irrigationFN61. Traditional farming methods and later irrigation systems helped to
overcome the resulting problems of waterlogging and salinization.

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-----
FN61 Goldsmith and Hildyard, op. cit., p. 308.
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----

China was another site of great irrigation works, some of which are still in use over two
millennia after their construction. For example, the ravages of the Mo river were overcome by
an excavation through a [p106] mountain and the construction of two great canals. Needham
describes this as "one of the greatest of Chinese engineering operations which, now 2,200
years old, is still in use today"FN62. An ancient stone inscription teaching the art of river
control says that its teaching "holds good for a thousand autumns"FN63. Such action was
often inspired by the philosophy recorded in the Tao Te Ching which "with its usual gemlike
brevity says 'Let there be no action [contrary to Nature] and there will be nothing that will not
be well regulated'".FN64 Here, from another ancient irrigation civilization, is yet another
expression of the idea of the rights of future generations being served through the
harmonization of human developmental work with respect for the natural environment.

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-----
FN62 Op. cit., Vol. 4, p. 288.
FN63 Ibid., p. 295.
FN64 Needham, Science and Civilization in China, Vol. 2, History of Scientific Thought,
1969, p. 69.
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----

Regarding the Inca civilization at its height, it has been observed that it continually brought
new lands under cultivation by swamp drainage, expansion of irrigation works, terracing of
hillsides and construction of irrigation works in dry zones, the goal being always the same —
better utilization of all resources so as to maintain an equilibrium between production and
consumptionFN65. In the words of a noted writer on this civilization, "in this respect we can
consider the Inca civilization triumphant, since it conquered the eternal problem of maximum
use and conservation of soil"FN66. Here, too, we note the harmonization of developmental
and environmental considerations.

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FN65 Jorge E. Hardoy, Pre-Columbian Cities, 1973, p. 415.
FN66 John Collier, Los indios de las Americas, 1960, cited in Hardoy, op. cit., p. 415. See
also Donald Collier, "Development of Civilization on the Coast of Peru", in Irrigation
Civilizations : A Comparative Study, Julian H. Steward (ed.), 1955.
-----------------------------------------------------------------------------------------------------------------
----

Many more instances can be cited of irrigation cultures which accorded due importance to
environmental considerations and reconciled the rights of present and future generations. I
have referred to some of the more outstanding. Among them, I have examined one at greater
length, partly because it combined vast hydraulic development projects with a meticulous
regard for environmental considerations, and partly because both development and
environmental protection are mentioned in its ancient records. That is sustainable
development par excellence; and the principles on which it was based must surely have a
message for modern law.

Traditional wisdom which inspired these ancient legal systems was able to handle such
problems. Modern legal systems can do no less, achieving a blend of the concepts of
development and of conservation of the environment, which alone does justice to humanity's
obligations to itself and [p107] to the planet which is its home. Another way of viewing the
problem is to look upon it as involving the imperative of balancing the needs of the present
generation with those of posterity.

In relation to concern for the environment generally, examples may be cited from nearly every
traditional system, ranging from Australasia and the Pacific Islands, through Amerindian and
African cultures to those of ancient Europe. When Native American wisdom, with its deep
love of nature, ordained that no activity affecting the land should be undertaken without
giving thought to its impact on the land for seven generations to comeFN67; when African
tradition viewed the human community as threefold — past, present and future — and refused
to adopt a one-eyed vision of concentration on the present; when Pacific tradition despised the
view of land as merchandise that could be bought and sold like a common article of
commerceFN68, and viewed land as a living entity which lived and grew with the people and
upon whose sickness and death the people likewise sickened and died; when Chinese and
Japanese culture stressed the need for harmony with nature; and when Aboriginal custom,
while maximizing the use of all species of plant and animal life, yet decreed that no land
should be used by man to the point where it could not replenish itselfFN69, these varied
cultures were reflecting the ancient wisdom of the human family which the legal systems of
the time and the tribe absorbed, reflected and turned into principles whose legal validity
cannot be denied. Ancient Indian teaching so respected the environment that it was illegal
[p108] to cause wanton damage, even to an enemy's territory in the course of military
conflictFN70.

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-----
FN67 On Native American attitudes to land, see Guruswamy, Palmer and Weston (eds.),
International Environmental Law and World Order, 1994, pp. 298-299. On American Indian
attitudes, see further J. Callicott, "The Traditional American Indian and Western European
Attitudes towards Nature: An Overview", Environmental Ethics, 1982, Vol. 4, p. 293; A.
Wiggins, "Indian Rights and the Environment", Yale J. Int'l Law, 1993, Vol. 18, p. 345; J.
Hughes, American Indian Ecology, 1983.
FN68 A Pacific Islander, giving evidence before the first Land Commission in the British
Solomons (1919-1924), poured scorn on the concept that land could be treated "as if it were a
thing like a box" which could be bought and sold, pointing out that land was treated in his
society with respect and with due regard for the rights of future generations. (Peter G. Sack,
Land between Two Laws, 1993, p. 33.)
FN69 On Aboriginal attitudes to land, see E. M. Eggleston, Fear, Favour and Affection, 1976.
For all their concern with the environment, the Aboriginal people were not without their own
development projects:
"There were remarkable Aboriginal water control schemes at Lake Condah, Toolondo and
Mount William in south-western Victoria. These were major engineering feats, each involving
several kilometres of stone channels connecting swamp and watercourses.
At Lake Condah, thousands of years before Leonardo da Vinci studied the hydrology of the
northern Italian lakes, the original inhabitants of Australia perfectly understood the hydrology
of the site. A sophisticated network of traps, weirs and sluices were designed . . ." (Stephen
Johnson et a!.. Engineering and Society: An Australian Perspective, 1995, p. 35.)
FN70 Nagendra Singh, Human Rights and the Future of Mankind, 1981, p. 93.
-----------------------------------------------------------------------------------------------------------------
----

Europe, likewise, had a deep-seated tradition of love for the environment, a prominent feature
of European culture, until the industrial revolution pushed these concerns into the
background. Wordsworth in England, Thoreau in the United States, Rousseau in France,
Tolstoy and Chekhov in Russia, Goethe in Germany spoke not only for themselves, but
represented a deep-seated love of nature that was instinct in the ancient traditions of Europe
— traditions whose gradual disappearance these writers lamented in their various waysFN71.

-----------------------------------------------------------------------------------------------------------------
-----
FN71 Commenting on the rise of naturalism in all the arts in Europe in the later Middle Ages,
one of this century's outstanding philosophers of science has observed:
"The whole atmosphere of every art exhibited direct joy in the apprehension of the things
around us. The craftsmen who executed the later mediaeval decorative sculpture, Giotto,
Chaucer, Wordsworth, Walt Whitman, and at the present day the New England poet Robert
Frost, are all akin to each other in this respect." (Alfred North Whitehead, Science and the
Modern World, 1926, p. 17.)
-----------------------------------------------------------------------------------------------------------------
----

Indeed, European concern with the environment can be traced back through the millennia to
such writers as Virgil, whose Georgics, composed between 37 and 30 BC, extols the beauty of
the Italian countryside and pleads for the restoration of the traditional agricultural life of Italy,
which was being damaged by the drift to the citiesFN72.

-----------------------------------------------------------------------------------------------------------------
-----
FN72 See the Georgics, Book II, 1. 36 ff.; 1. 458 ff. Also Encyclopaedia Britannica, 1992,
Vol. 29, pp. 499-500.
-----------------------------------------------------------------------------------------------------------------
----

This survey would not be complete without a reference also to the principles of Islamic law
that inasmuch as all land belongs to God, land is never the subject of human ownership, but is
only held in trust, with all the connotations that follow of due care, wise management, and
custody for future generations. The first principle of modern environmental law — the
principle of trusteeship of earth resources — is thus categorically formulated in this system.

The ingrained values of any civilization are the source from which its legal concepts derive,
and the ultimate yardstick and touchstone of their validity. This is so in international and
domestic legal systems alike, save that international law would require a worldwide
recognition of those values. It would not be wrong to state that the love of nature, the desire
for its preservation, and the need for human activity to respect the [p109] requisites for its
maintenance and continuance are among those pristine and universal values which command
international recognition.

The formalism of modern legal systems may cause us to lose sight of such principles, but the
time has come when they must once more be integrated into the corpus of the living law. As
stated in the exhaustive study of The Social and Environmental Effects of Large Dams,
already cited, "We should examine not only what has caused modern irrigation systems to
fail; it is much more important to understand what has made traditional irrigation societies to
succeed."FN73

-----------------------------------------------------------------------------------------------------------------
-----
FN73 Goldsmith and Hildyard, op. cit., p. 316.
-----------------------------------------------------------------------------------------------------------------
----

Observing that various societies have practised sustainable irrigation agriculture over
thousands of years, and that modern irrigation systems rarely last more than a few decades,
the authors pose the question whether it was due to the achievement of a "congruence of fit"
between their methods and "the nature of land, water and climate"FN74. Modern
environmental law needs to take note of the experience of the past in pursuing this
"congruence of fit" between development and environmental imperatives.

-----------------------------------------------------------------------------------------------------------------
-----
FN74 Ibid.
-----------------------------------------------------------------------------------------------------------------
----

By virtue of its representation of the main forms of civilization, this Court constitutes a
unique forum for the reflection and the revitalization of those global legal traditions. There
were principles ingrained in these civilizations as well as embodied in their legal systems, for
legal systems include not merely written legal systems but traditional legal systems as well,
which modern researchers have shown to be no less legal systems than their written cousins,
and in some respects even more sophisticated and finely tuned than the latterFN75.

-----------------------------------------------------------------------------------------------------------------
----
FN75 See, for example, M. Gluckman, African Traditional Law in Historical Perspective,
1974, The Ideas in Barotse Jurisprudence, 2nd ed., 1972, and The Judicial Process among the
Barotse, 1955; A. L. Epstein, Juridical Techniques and the Judicial Process: A Study in
African Customary Law, 1954.
-----------------------------------------------------------------------------------------------------------------
----

Living law which is daily observed by members of the community, and compliance with
which is so axiomatic that it is taken for granted, is not deprived of the character of law by the
extraneous test and standard of reduction to writing. Writing is of course useful for
establishing certainty, but when a duty such as the duty to protect the environment is so well
accepted that all citizens act upon it, that duty is part of the legal system in questionFN76.

-----------------------------------------------------------------------------------------------------------------
-----
FN76 On the precision with which these systems assigned duties to their members, see
Malinowski, Crime and Custom in Savage Society, 1926.
-----------------------------------------------------------------------------------------------------------------
----

Moreover, when the Statute of the Court described the sources of international law as
including the "general principles of law recognized [p110]by civilized nations", it expressly
opened a door to the entry of such principles into modern international law.

(f) Traditional Principles That Can Assist in the Development of Modern Environmental Law

As modern environmental law develops, it can, with profit to itself, take account of the
perspectives and principles of traditional systems, not merely in a general way, but with
reference to specific principles, concepts, and aspirational standards.

Among those which may be extracted from the systems already referred to are such far-
reaching principles as the principle of trusteeship of earth resources, the principle of
intergenerational rights, and the principle that development and environmental conservation
must go hand in hand. Land is to be respected as having a vitality of its own and being
integrally linked to the welfare of the community. When it is used by humans, every
opportunity should be afforded to it to replenish itself. Since flora and fauna have a niche in
the ecological system, they must be expressly protected. There is a duty lying upon all
members of the community to preserve the integrity and purity of the environment.

Natural resources are not individually, but collectively, owned, and a principle of their use is
that they should be used for the maximum service of people. There should be no waste, and
there should be a maximization of the use of plant and animal species, while preserving their
regenerative powers. The purpose of development is the betterment of the condition of the
people.

Most of them have relevance to the present case, and all of them can greatly enhance the
ability of international environmental law to cope with problems such as these if and when
they arise in the future. There are many routes of entry by which they can be assimilated into
the international legal system, and modern international law would only diminish itself were it
to lose sight of them — embodying as they do the wisdom which enabled the works of man to
function for centuries and millennia in a stable relationship with the principles of the
environment. This approach assumes increasing importance at a time when such a harmony
between humanity and its planetary inheritance is a prerequisite for human survival.

***

Sustainable development is thus not merely a principle of modern international law. It is one
of the most ancient of ideas in the human heritage. Fortified by the rich insights that can be
gained from millennia [p111] of human experience, it has an important part to play in the
service of international law.

B. The Principle of Continuing Environmental Impact Assessment

(a) The Principle of Continuing Environmental Impact Assessment

Environmental Impact Assessment (EIA) has assumed an important role in this case.
In a previous opinionFN77 I have had occasion to observe that this principle was gathering
strength and international acceptance, and had reached the level of general recognition at
which this Court should take notice of itFN78.

-----------------------------------------------------------------------------------------------------------------
-----
FN77 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,
I.C.J. Reports 1995, p. 344. See, also, Legality of the Use by a State of Nuclear Weapons in
Armed Conflict, I.C.J. Reports 1996, p. 140.
FN78 Major international documents recognizing this principle (first established in domestic
law under the 1972 National Environmental Protection Act of the United States) are the 1992
Rio Declaration (Principle 17); United Nations General Assembly resolution 2995 (XXVII),
1972; the 1978 UNEP Draft Principles of Conduct (Principle 5); Agenda 21 (paras. 7.41 (b)
and 8.4); the 1974 Nordic Environmental Protection Convention (Art. 6); the 1985 EC
Environmental Assessment Directive (Art. 3); and the 1991 Espoo Convention. The status of
the principle in actual practice is indicated also by the fact that multilateral development
banks have adopted it as an essential precaution (World Bank Operational Directive 4.00).
-----------------------------------------------------------------------------------------------------------------
----

I wish in this opinion to clarify further the scope and extent of the environmental impact
principle in the sense that environmental impact assessment means not merely an assessment
prior to the commencement of the project, but a continuing assessment and evaluation as long
as the project is in operation. This follows from the fact that EIA is a dynamic principle and is
not confined to a pre-project evaluation of possible environmental consequences. As long as a
project of some magnitude is in operation, EIA must continue, for every such project can have
unexpected conse-quences; and considerations of prudence would point to the need for
continuous monitoring79.

-----------------------------------------------------------------------------------------------------------------
-----
FN79 Trail Smelter Arbitration (United Nations, Reports of International Arbitral Awards,
(RIAA), 1941, Vol. Ill, p. 1907).
-----------------------------------------------------------------------------------------------------------------
----

The greater the size and scope of the project, the greater is the need for a continuous
monitoring of its effects, for EIA before the scheme can never be expected, in a matter so
complex as the environment, to anticipate every possible environmental danger.
In the present case, the incorporation of environmental considerations into the Treaty by
Articles 15 and 19 meant that the principle of EIA was also built into the Treaty. These
provisions were clearly not restricted to EIA before the project commenced, but also included
the concept of
[p112] monitoring during the continuance of the project. Article 15 speaks expressly of
monitoring of the water quality during the operation of the System of Locks, and Article 19
speaks of compliance with obligations for the protection of nature arising in connection with
the construction and operation of the System of Locks.

Environmental law in its current state of development would read into treaties which may
reasonably be considered to have a significant impact upon the environment, a duty of
environmental impact assessment and this means also, whether the treaty expressly so
provides or not, a duty of monitoring the environmental impacts of any substantial project
during the operation of the scheme.

Over half a century ago the Trail Smelter ArbitrationFN80 recognized the importance of
continuous monitoring when, in a series of elaborate provisions, it required the parties to
monitor subsequent performance under the decisionFN81. It directed the Trail Smelter to
install observation stations, equipment necessary to give information of gas conditions and
sulphur dioxide recorders, and to render regular reports which the Tribunal would consider at
a future meeting. In the present case, the Judgment of the Court imposes a requirement of
joint supervision which must be similarly understood and applied.

-----------------------------------------------------------------------------------------------------------------
-----
FN80 RIAA, 1941, Vol. Ill, p. 1907.
FN81 See ibid., pp. 1934-1937.
-----------------------------------------------------------------------------------------------------------------
----

The concept of monitoring and exchange of information has gathered much recognition in
international practice. Examples are the Co-operative Programme for the Monitoring and
Evaluation of the Long-Range Transmission of Air Pollutants in Europe, under the ECE
Convention, the Vienna Convention for the Protection of the Ozone Layer, 1985 (Arts. 3 and
4), and the Convention on Long-Range Transboundary Air Pollution, 1979 (Art. 9)FN82.
There has thus been growing international recognition of the concept of continuing
monitoring as part of EIA.

-----------------------------------------------------------------------------------------------------------------
-----
FN82 ILM, 1979, Vol. XVIII, p. 1442.
-----------------------------------------------------------------------------------------------------------------
----

The Court has indicated in its Judgment (para. 155 (2) (C)) that a joint operational regime
must be established in accordance with the Treaty of 16 September 1977. A continuous
monitoring of the scheme for its environmental impacts will accord with the principles
outlined, and be a part of that operational regime. Indeed, the 1977 Treaty, with its
contemplated regime of joint operation and joint supervision, had itself a built-in regime of
continuous joint environmental monitoring. This principle of environmental law, as reinforced
by the terms of the Treaty and as now incorporated into the Judgment of the Court (para. 140),
would require the Parties to take upon themselves an obligation to set up the machinery for
continuous watchfulness, anticipation and evaluation [p113] at every stage of the project's
progress, throughout its period of active operation.

Domestic legal systems have shown an intense awareness of this need and have even devised
procedural structures to this end. In India, for example, the concept has evolved of the
"continuous mandamus" — a court order which specifies certain environmental safeguards in
relation to a given project, and does not leave the matter there, but orders a continuous
monitoring of the project to ensure compliance with the standards which the court has
ordainedFN83.

-----------------------------------------------------------------------------------------------------------------
-----
FN83 For a reference to environmentally related judicial initiatives of the courts of the
SAARC Region, see the Proceedings of the Regional Symposium on the Role of the Judiciary
in Promoting the Rule of Law in the Area of Sustainable Development, held in Colombo, Sri
Lanka, 4-6 July 1997, shortly to be published.
-----------------------------------------------------------------------------------------------------------------
----

EIA, being a specific application of the larger general principle of caution, embodies the
obligation of continuing watchfulness and anticipation.

(b) The Principle of Contemporaneity in the Application of Environmental Norms

This is a principle which supplements the observations just made regarding continuing
assessment. It provides the standard by which the continuing assessment is to be made.

This case concerns a treaty that was entered into in 1977. Environmental standards and the
relevant scientific knowledge of 1997 are far in advance of those of 1977. As the Court has
observed, new scientific insights and a growing awareness of the risks for mankind have led
to the development of new norms and standards:

"Such new norms have to be taken into consideration, and such new standards given proper
weight, not only when States contemplate new activities but also when continuing with
activities begun in the past." (Para. 140.)

This assumes great practical importance in view of the continued joint monitoring that will be
required in terms of the Court's Judgment.

Both Parties envisaged that the project they had agreed upon was not one which would be
operative for just a few years. It was to reach far into the long-term future, and be operative
for decades, improving in a permanent way the natural features that it dealt with, and forming
a lasting contribution to the economic welfare of both participants.

If the Treaty was to operate for decades into the future, it could not [p114] operate on the
basis of environmental norms as though they were frozen in time when the Treaty was entered
into.

This inter-temporal aspect of the present case is of importance to all treaties dealing with
projects impacting on the environment. Unfortunately, the Vienna Convention offers very
little guidance regarding this matter which is of such importance in the environmental field.
The provision in Article 31, paragraph 3(c), providing that "any relevant rules of international
law applicable in the relations between the parties" shall be taken into account, scarcely
covers this aspect with the degree of clarity requisite to so important a matter.

Environmental concerns are live and continuing concerns whenever the project under which
they arise may have been inaugurated. It matters little that an undertaking has been
commenced under a treaty of 1950, if in fact that undertaking continues in operation in the
year 2000. The relevant environmental standards that will be applicable will be those of the
year 2000.

As this Court observed in the Namibia case, "an international instrument has to be interpreted
and applied within the framework of the entire legal system prevailing at the time of the
interpretation" (Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970),
Advisory Opinion, I.C.J. Reports 1971, p. 31, para. 53), and these principles are "not limited
to the rules of international law applicable at the time the treaty was concluded"FN84.

-----------------------------------------------------------------------------------------------------------------
-----
FN84 Oppenheim's International Law, R. Y. Jennings and A. Watts (eds.), 1992, p. 1275, note
21.
-----------------------------------------------------------------------------------------------------------------
----.

Environmental rights are human rights. Treaties that affect human rights cannot be applied in
such a manner as to constitute a denial of human rights as understood at the time of their
application. A Court cannot endorse actions which are a violation of human rights by the
stand-ards of their time merely because they are taken under a treaty which dates back to a
period when such action was not a violation of human rights.

Support for this proposition can be sought from the opinion of Judge Tanaka in South West
Africa, when he observed that a new customary law could be applied to the interpretation of
an instrument entered into more than 40 years previously (I.C.J. Reports 1966, pp. 293-294).
The ethical and human rights related aspects of environmental law bring it within the category
of law so essential to human welfare that we cannot apply to today's problems in this field the
standards of yesterday. Judge Tanaka reasoned that a party to a humanitarian instrument has
no right to act in a manner which is today considered inhuman, even though the action be
taken under an instrument of 40 years ago. Likewise, no action should be permissible which is
today considered environmentally [p115] unsound, even though it is taken under an
instrument of more than 20 years ago.

Mention may also be made in this context of the observation of the European Court of Human
Rights in the Tyrer case that the Convention is a "living instrument" which must be
interpreted "in the light of present-day conditions"FN85.

-----------------------------------------------------------------------------------------------------------------
-----
FN85 Judgment of the Court. Tyrer case, 25 April 1978, para. 31, publ. Court A, Vol. 26, at
15, 16.
-----------------------------------------------------------------------------------------------------------------
----

It may also be observed that we are not here dealing with questions of the validity of the
Treaty which fall to be determined by the principles applicable at the time of the Treaty, but
with the application of the TreatyFN86. In the application of an environmental treaty, it is
vitally important that the standards in force at the time of application would be the governing
standards.

-----------------------------------------------------------------------------------------------------------------
-----
FN86 See further Rosalyn Higgins, "Some Observations on the Inter-Temporal Rule in
International Law", in Theory of International Law at the Threshold of the 21st Century, op.
cit., p. 173.
-----------------------------------------------------------------------------------------------------------------
----

A recognition of the principle of contemporaneity in the application of environmental norms

applies to the joint supervisory regime envisaged in the Court's Judgment, and will be an
additional safeguard for protecting the environmental interests of Hungary.

C. The Handling of Erga Omnes Obligations in Inter Partes Judicial Procedure

(a) The Factual Background: The Presence of the Elements of Estoppel

It is necessary to bear in mind that the Treaty of 1977 was not one that suddenly materialized
and was hastily entered into, but that it was the result of years of negotiation and study
following the first formulations of the idea in the 1960s. During the period of negotiation and
implementation of the Treaty, numerous detailed studies were conducted by many experts and
organizations, including the Hungarian Academy of Sciences.

The first observation to be made on this matter is that Hungary went into the 1977 Treaty,
despite very clear warnings during the preparatory studies that the Project might involve the
possibility of environmental damage. Hungary, with a vast amount of material before it, both
for and against, thus took a considered decision, despite warnings of possible danger to its
ecology on almost all the grounds which are advanced today.

Secondly, Hungary, having entered into the Treaty, continued to treat it as valid and binding
for around 12 years. As early as 1981, the Gov-[p116] ernment of Hungary had ordered a
reconsideration of the Project and researchers had then suggested a postponement of the
construction, pending more detailed ecological studies. Yet Hungary went ahead with the
implementation of the Treaty.

Thirdly, not only did Hungary devote its own effort and resources to the implementation of
the Treaty but, by its attitude, it left Czechoslovakia with the impression that the binding force
of the Treaty was not in doubt. Under this impression, and in pursuance of the Treaty which
bound both Parties, Czechoslovakia committed enormous resources to the Project. Hungary
looked on without comment or protest and, indeed, urged Czechoslovakia to more expeditious
action. It was clear to Hungary that Czechoslovakia was spending vast funds on the Project —
resources clearly so large as to strain the economy of a State whose economy was not
particularly strong.

Fourthly, Hungary's action in so entering into the Treaty in 1977 was confirmed by it as late
as October 1988 when the Hungarian Parliament approved of the Project, despite all the
additional material available to it in the intervening space of 12 years. A further reaffirmation
of this Hun-garian position is to be found in the signing of a Protocol by the Deputy Chairman
of the Hungarian Council of Ministers on 6 February 1989, reaffirming Hungary's
commitment to the 1977 Project. Hungary was in fact interested in setting back the date of
completion from 1995 to 1994.

Ninety-six days after the 1989 Protocol took effect, i.e., on 13 May 1989, the Hungarian
Government announced the immediate suspension for two months of work at the Nagymaros
site. It abandoned performance on 20 July 1989, and thereafter suspended work on all parts of
the Project. Formal termination of the 1977 Treaty by Hungary took place in May 1992.

It seems to me that all the ingredients of a legally binding estoppel are here presentFN87.

-----------------------------------------------------------------------------------------------------------------
-----
FN87 On the application of principles of estoppel in the jurisprudence of this Court and its
predecessor, see Legal Status of Eastern Greenland, P.C.I.J., Series A/B, No. 53, p. 22;
Fisheries (United Kingdom v. Norway), l.C.J. Reports 1951, p. 116; Temple of Preah Vihear,
l.C.J. Reports 1962, p. 151. For an analysis of this jurisprudence, see the separate opinion of
Judge Ajibola in Territorial Dispute (Libyan Arab Jamahiriya/Chad), I.C.J. Reports 1994, pp.
77-83.
-----------------------------------------------------------------------------------------------------------------
----
The other Treaty partner was left with a vast amount of useless project construction on its
hands and enormous incurred expenditure which it had fruitlessly undertaken.

(b) The Context of Hungary's Actions

In making these observations, one must be deeply sensitive to the fact that Hungary was
passing through a very difficult phase, having regard [p117] to the epochal events that had
recently taken place in Eastern Europe. Such historic events necessarily leave their aftermath
of internal tension. This may well manifest itself in shifts of official policy as different
emergent groups exercise power and influence in the new order that was in the course of
replacing that under which the country had functioned for close on half a century. One cannot
but take note of these realities in understanding the drastic official changes of policy exhibited
by Hungary.

Yet the Court is placed in the position of an objective observer, seeking to determine the
effects of one State's changing official attitudes upon a neighbouring State. This is particularly
so where the latter was obliged, in determining its course of action, to take into account the
representations emanating from the official repositories of power in the first State.

Whatever be the reason for the internal changes of policy, and whatever be the internal
pressures that might have produced this, the Court can only assess the respective rights of the
two States on the basis of their official attitudes and pronouncements. Viewing the matter
from the standpoint of an external observer, there can be little doubt that there was indeed a
marked change of official attitude towards the Treaty, involving a sharp shift from full official
acceptance to full official rejection. It is on this basis that the legal consequence of estoppel
would follow.

(c) Is It Appropriate to Use the Rules of Inter Partes Litigation to Determine Erga Omnes
Obligations?

This recapitulation of the facts brings me to the point where I believe a distinction must be
made between litigation involving issues inter partes and litigation which involves issues with
an erga omnes connotation.

An important conceptual problem arises when, in such a dispute inter partes, an issue arises
regarding an alleged violation of rights or duties in relation to the rest of the world. The Court,
in the discharge of its traditional duty of deciding between the parties, makes the decision
which is in accordance with justice and fairness between the parties. The procedure it follows
is largely adversarial. Yet this scarcely does justice to rights and obligations of an erga omnes
character — least of all in cases involving environmental damage of a far-reaching and
irreversible nature. I draw attention to this problem as it will present itself sooner or later in
the field of environmental law, and because (though not essential to the decision actually
reached) the facts of this case draw attention to it in a particularly pointed form.
There has been conduct on the part of Hungary which, in ordinary [p118] inter partes
litigation, would prevent it from taking up wholly contradictory positions. But can
momentous environmental issues be decided on the basis of such inter partes conduct? In
cases where the erga omnes issues are of sufficient importance, I would think not.

This is a suitable opportunity, both to draw attention to the problem and to indicate concern at
the inadequacies of such inter partes rules as determining factors in major environmental
disputes.

I stress this for the reason that inter partes adversarial procedures, eminently fair and
reasonable in a purely inter partes issue, may need reconsideration in the future, if ever a case
should arise of the imminence of serious or catastrophic environmental danger, especially to
parties other than the immediate litigants.

Indeed, the inadequacies of technical judicial rules of procedure for the decision of scientific
matters has for long been the subject of scholarly commentFN88.

-----------------------------------------------------------------------------------------------------------------
-----
FN88 See, for example, Peter Brett, "Implications of Science for the Law", McGill Law
Journal, 1972, Vol. 18, p. 170, at p. 191. For a well-known comment from the perspective of
sociology, see Jacques Ellul, The Technological Society, trans. John Wilkinson, 1964, pp.
251, 291-300.
-----------------------------------------------------------------------------------------------------------------
----

We have entered an era of international law in which international law subserves not only the
interests of individual States, but looks beyond them and their parochial concerns to the
greater interests of humanity and planetary welfare. In addressing such problems, which
transcend the individual rights and obligations of the litigating States, international law will
need to look beyond procedural rules fashioned for purely inter partes litigation.

When we enter the arena of obligations which operate erga omnes rather than inter partes,
rules based on individual fairness and procedural compliance may be inadequate. The great
ecological questions now surfacing will call for thought upon this matter. International
environmental law will need to proceed beyond weighing the rights and obligations of parties
within a closed compartment of individual State self-interest, unrelated to the global concerns
of humanity as a whole.

The present case offers an opportunity for such reflection.

***

Environmental law is one of the most rapidly developing areas of international law and I have
thought it fit to make these observations on a few aspects which have presented themselves
for consideration in this case. [p119] As this vital branch of law proceeds to develop, it will
need all the insights available from the human experience, crossing cultural and disciplinary
boundaries which have traditionally hemmed in the discipline of international law.

(Signed) Christopher Gregory WEERAMANTRY. [p120]

SEPARATE OPINION OF JUDGE BEDJAOUI

[Translation ]

1. In my view, the majority of the Court has not sufficiently clarified two questions, i.e., the
applicable law and the nature of the 1977 Treaty. In no way do I disagree with the analysis of
the majority of the Court on these two points which will necessitate just a little finer shading
and clarification from me at a later stage.

2. However on two other questions I do have distinct reservations about the position taken by
the majority. These are first the legal characterization of Variant C, considered by the
majority to be unlawful only in its final phase, i.e., the diversion of the Danube, and which I
personally consider to be an offence, whose unlawfulness in the final phase has a retroactive
effect upon each of the acts — from first to last — in the construction of Variant C. Then
there is the comprehensive analysis of the conduct of the two Parties, that I see as constituting
intersecting violations, nurturing and nurtured by each other in turn in a tangle of causalities
hard to unravel, and generating two effectivites mutually acknowledged by the Parties.

However, my reservations with regard to the position of the majority of the Court on these
various points did not prevent me from voting for the operative part as a whole, since I agree
with the tenor of the Judgment overall.

***
3. I agree with the majority of the Court on its general approach to the question of the
applicable law. I shall refer to only one aspect of this question that I consider to be
fundamental and that touches upon the applicability in this case of the conventions and other
instruments subsequent to the 1977 Treaty, and concerning the environment and the law of
international watercourses.

4. Hungary asks the Court to interpret the 1977 Treaty in the light of the new, more developed
and more exacting law of the environment, and of the law of international watercourses. In
support of its argument, it principally relies upon the Advisory Opinion rendered by the Court
in 1971 in the Namibia case {Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution
276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16). In that case, the Court stated that a
treaty should be interpreted "within the framework of the entire legal system prevailing at the
time of the interpretation" (ibid., p. 31). [p121]
5. Taken literally and in isolation, there is no telling where this statement may lead. The
following precautions must be taken:

— an "evolutionary interpretation" can only apply in the observation of the general rule of
interpretation laid down in Article 31 of the Vienna Convention on the Law of Treaties;

— the "definition" of a concept must not be confused with the "law" applicable to that
concept;

— the "interpretation" of a treaty must not be confused with its "revision ".

A. The "Evolutionary Interpretation" Can Only Be Applied If the General Rule of

Interpretation in Article 31 of the Vienna Convention on the Law of Treaties Is Respected

(a) Respect for the Principle Pacta Sunt Servanda Unless There Is Incompatibility with a
Peremptory Norm Appertaining to Jus Cogens

6. (i) It may be useful first to restate the obvious: pacta sunt servanda. Inasmuch as the 1997
Treaty is regarded as being in force for the purposes of a judicial interpretation, it is
necessarily binding upon the parties. They are under an obligation to perform it in good faith
(Article 26 of the 1969 Vienna Convention).

(ii) Moreover the parties cannot, in principle, evade a traditional interpretation based on
Article
31 of the Vienna Convention unless the Treaty which they concluded in the past has become
incompatible with a norm of jus cogens. Both Hungary and Slovakia appear to agree that this
is not the case of the 1977 Treaty.

(b) The Interpretation of the Treaty Must Comply with the Intentions of the Parties Expressed
at the Time of Its Conclusion

7. (i) The Court's dictum, seized upon by Hungary in order to justify its "evolutionary
interpretation", needs to be put back into its proper context. Before settling on this dictum, the
Court had been at pains, in the same 1971 Opinion and on the same page, to emphasize "the
primary necessity of interpreting an instrument in accordance with the intentions of the parties
at the time of its conclusion" (I.C.J. Reports 1971, p. 31; emphasis added).

(ii) The intentions of the parties are presumed to have been influenced by the law in force at
the time the Treaty was concluded, the law which they were supposed to know, and not by
future law, as yet unknown. As Ambassador Mustapha Kamil Yasseen, quoted by Hungary
(Counter-Memorial of Hungary, para. 6.13), put it, only international law existing [p122]
when the Treaty was concluded "could influence the intention of the Contracting States . . ., as
the law which did not yet exist at that time could not logically have any influence on this
intention"FN1.
-----------------------------------------------------------------------------------------------------------------
-----
FN1 M. K. Yasseen, "L'interprétation des traités d'après la Convention de Vienne sur le droit
des traités", Recueil des cours de l'Académie de droit international de La Have, Vol. 151
(1976), p. 64.
-----------------------------------------------------------------------------------------------------------------
----

(iii) Moreover, Hungary espouses this very classical approach by stating: "the 1977 Treaty
must in the first place be interpreted in the light of the international law prevailing at the time
of its conclusion" (Counter-Memorial of Hungary, para. 6.28; emphasis added).

(c) Primacy of the Principle of the "Fixed Reference" (Renvoi Fixe) over the Principle of the
"Mobile Reference" (Renvoi Mobile)
8. Hence, the essential basis for the interpretation of a treaty remains the "fixed reference " to
contemporary international law at the time of its conclusion. The "mobile reference" to the
law which will subsequently have developed can be recommended only in exceptional cases
of the sort we shall be looking at.

B. "Definition" of a Concept Not To Be Confused with the "Law" Applicable to That Concept

9. In the Namibia case, the Court had to interpret a very special situation. Among the
obligations of the Mandatory Power, the treaty instituting a "C" Mandate over South West
Africa referred to that of a "sacred trust". It was then for the Court to interpret that phrase. It
could only do so by observing the reality, which shows that this notion of a "sacred trust",
fashioned in 1920 in the era of colonization, was not comparable to the idea people had of it
half a century later in the period of successive decolonizations. The Court thus considered that
the matters to be inter-preted, such as the "sacred trust", "were not static, but were by
definition evolutionary" (I.C.J. Reports 1971, p. 31). This being so, the method of the mobile
reference, in other words the reference to new contemporary law, was wholly suitable for an
interpretation seeking to avoid archaic elements, was in tune with modern times and was
useful as regards the action of the Applicant, which in this case was the Security Council.

10. But the Court patently knew that it was pursuing this approach because the situation was
special. Nowhere did it state that its method of the mobile reference was subsequently to
become mandatory and extend to all cases of interpretation. The definition of the "sacred
trust" is evo-lutionary. It is the law corresponding to the period when this concept is [p123]
being interpreted which must be applied to the concept. On the other hand, the environment
remains the environment. It is water, air, earth, vegetation, etc. As a basic definition, the
environment is not evolutionary. Its components remain the same. On the other hand, its
"status" may change, deteriorate or improve, but this is different from a definition by its
components.

11. I would add that what evolved in the case of the Mandate was the object of the treaty
which created it. This object was the sacred trust. Yet this object has not evolved at all in the
Gabcikovo-Nagymaros case. The point here was to consent to a joint investment and to build
a number of structures. This object, or objective, remains, even if the actual means of
achieving it may evolve or become more streamlined.

C. "Interpretation" of a Treaty Not To Be Confused with Its "Revision"

12. An interpretation of a treaty which would amount to substituting a completely different

law to the one governing it at the time of its conclusion would be a distorted revision. The
"interpretation" is not the same as the "substitution ", for a negotiated and approved text, of a
completely different text, which has neither been negotiated nor agreed. Although there is no
need to abandon the "evolutionary interpretation", which may be useful, not to say necessary
in very limited situations, it must be said that it cannot automatically be applied to any case.

13. In general, it is noteworthy that the classical rules of interpretation do not require a treaty
to be interpreted in all circumstances in the context of the entire legal system prevailing at the
time of the interpretation, in other words, in the present case, that the 1977 Treaty should be
inter-preted "in the context" and in the light of the new contemporary law of the environment
or of international watercourses. Indeed, it is quite the opposite that these rules of
interpretation prescribe, seeking as they do to recommend an interpretation consonant with the
intentions of the parties at the time the Treaty was concluded.

14. In general, in a treaty, a State incurs specific obligations contained in a body of law as it
existed on the conclusion of the treaty and in no wise incurs evolutionary and indeterminate
duties. A State cannot incur unknown obligations whether for the future or even the present.

15. In this case, the new law of the environment or of international watercourses could have
been incorporated into the 1977 Treaty with the consent of the parties and by means of the
"procedural mechanisms " laid down in the Treaty. That would be a "revision " of the Treaty
accepted within the limits of that Treaty. Similarly, the new law might have played a role in
the context of a "reinterpretation" of the Treaty but provided it did so with the consent of the
other party. [p124]

D. Cautiously Take Subsequent Law into Account as an Element of Interpretation or

Modification in Very Special Situations

16. It is true that one cannot be excessively rigid without failing to allow for the movement of
life. The new law might, in principle, be relevant in two ways: as an element of the
interpretation of the content of the 1977 Treaty and as an element of the modification of that
content.

17. The former case, that of interpretation, is the simpler of the two. In general, there is
certainly good reason to protect the autonomy of the will. But in our case, Articles 15, 19, and
20 of the 1977 Treaty are fortunately drafted in extremely vague terms (in them, reference is
made to "protection " — without any further qualification — of water, nature or fishing). In
the absence of any other specification, respecting the autonomy of the will implies precisely
that provisions of this kind are interpreted in an evolutionary manner, in other words, taking
account of the criteria adopted by the general law prevailing in each period considered. If this
is the case, should it not be acknowledged that these criteria have evolved appreciably over
the past 20 years? The new law, both the law of the environment and the law of international
watercourses, may therefore advisedly be applied on the basis of Articles 15, 19 and 20 of the
1977 Treaty, for an "evolutionary interpretation" of the Treaty.

18. This is the first major case brought before the Court in which there is such a sensitive
ecological background that it has moved to centre stage, threatening to divert attention from
treaty law. International public opinion would not have understood had the Court disregarded
the new law, whose application was called for by Hungary. Fortunately the Court has been
able to graft the new law onto the stock of Articles 15, 19 and 20 of the 1977 Treaty. And
Slovakia, it must be said, was not opposed to taking this law into consideration. However in
applying the so-called principle of the evolutionary interpretation of a treaty in the present
case, the Court should have clarified the issue more and should have recalled that the general
rule governing the interpretation of a treaty remains that set out in Article 31 of the 1969
Vienna Convention.

19. Concluding this consideration of the issue of the applicable law, let me say that
considerable progress has been made over the last 20 or 30 years in mankind's knowledge of
the environment. What has actually progressed however, all that could progress, is on the one
hand the scientific explanation of ecological damage and on the other the technical means for
limiting or eliminating such damage. The phenomenon of damage, as such, has existed since
the dawn of time, each time that mankind has opposed the forces of nature. This means that
damage was a known factor, before and after the 1977 Treaty, and this was the meaning
behind my question to the Parties.

***[p125]

20. It seems to me that the issue of the nature of the 1977 Treaty and its related instruments
warranted more attention from the majority of the Court. Actually, it is a crucial question. The
nature of the Treaty largely conditions the succession of Slovakia to this instrument, which
constitutes the substance of the applicable law, and which remains in force despite
intersecting violations by both Parties.

21. The 1977 Treaty (including its related instruments) has the threefold characteristic
— of being a territorial treaty;
— of being a treaty to which Slovakia validly succeeded; and
— of being a treaty which is still in force today.

22. The Treaty in question is a territorial treaty:

— because it "marries" the territories of two States; it creates obligations between the States
relating either to the use of a part of the territory of each of the two States or to restrictions as
to its use. It creates a sort of territorial "dependency " of one State in relation to the other; it
institutes a "territorial link" between them in respecting the established frontiers. The
operation of the Gabcikovo hydroelectric power plant on Slovak territory is conditioned by
the Duna-kiliti dam on Hungarian territory. And the operation of that plant in "peak power"
mode is subordinate to the creation of the dam at Nagymaros on Hungarian territory;

— because it creates a specific regional area between two neighbouring countries; it concerns
the joint construction and use of major structures, all constructed on the Danube, itself a
frontier river, or around and for the river. Such regulation by treaty of a watercourse in a
frontier zone affects navigation on this stretch of the river as well as the use and
apportionment of the frontier waters and makes the two States partners in the benefits of an
industrial activity producing energy. All this creates a specific regional area and frontier
regime, undeniably giving the Treaty instituting this space and this regime the character of a
"territorial treaty";

— lastly because it has a dual function, both confirming and slightly modifying the frontier
between the two States; the frontier had already been determined by other, previous
instruments. However the 1977 Treaty concerns the regulation of a river which determines the
State frontier between the two parties as the median line of its main channel. Moreover, the
Treaty nonetheless contains a provision on the demarcation of the State boundary line,
making it a boundary Treaty confirming the frontier. In addition it provides for a minor
modification of the boundary line once the construction of the system of dams is completed.
For this purpose it announces a limited exchange of territory on the basis of a separate treaty.
Lastly, the 1977 Treaty thus affects not only the boundary line, but even its nature, since the
frontier is no longer constituted de facto by the actual thalweg.[p126]

23. The Treaty is an instrument to which undeniably Slovakia succeeded:

— because it is a territorial treaty, the principle in such cases being automatic succession;

— because the type of succession concerned here (the dissolution of a State) is governed by
the rule of continuity of succession;

— because Slovakia itself, prior to the dissolution of Czechoslovakia, participated in the

conclusion of the Treaty; and lastly

— because, on its emergence, Slovakia declared that it was bound by all treaties concluded by
the predecessor State, without ever excluding the 1977 Treaty.

24. The Special Agreement concluded by the Parties in 1993 cannot have been easy to draw
up. The text appears to have been inspired by the desire to reconcile elements which remain
contradictory. One of the Parties — Hungary — acknowledges that the 1977 Treaty applies to
itself, Hungary, until its termination on 19 May 1992, but does not apply to the other Party.
According to Hungary, that Party — Slovakia — did not inherit the formal instrument itself,
but its material content made up of "the rights and obligations " which Slovakia allegedly
derived from this

— according to Hungary — now defunct Treaty.

25. With this convoluted structure as backdrop, the Court apparently has to judge not two
States on the basis of one and the same treaty but to judge

(i) on the basis of one and the same treaty, one party to the dispute, Hungary, and a State now
dissolved, Czechoslovakia, which is not a party to the dispute, and

(ii) at the same time, on another basis which is not directly the Treaty, two States, Hungary
and Slovakia, the latter of which is not recognized to have the status of successor State to the
Treaty concerned.

26. Slovakia did indeed succeed to the 1977 Treaty, which is still in force today between the
two Parties in contention, despite the intersecting violations of it by the Parties. I concur with
the reasoning and conclusions of the majority of the Court in adjudging and declaring on the
one hand that both Hungary and Slovakia violated the Treaty, and on the other that the Treaty
remains in force. However, I shall shortly go a little further than the majority of the Court on
this question of the infringements of the Treaty, which I hold to be intersecting violations,
resulting in effectivites which must be reconciled with the survival of the Treaty.
*
***

27. As for the breaches of the Treaty, I entirely share the views of the majority of the Court in
declaring that Hungary was manifestly in breach of its contractual obligations in suspending
then abandoning work and [p127] later in declaring the Treaty terminated. None of Hungary's
attempted justifications, relating either to the suspension then the abandonment of work or to
the termination of the Treaty, convince me. I have nothing to add to the analysis of the
majority of the Court regarding breaches by Hungary, save that the Hungarian act of
"termination" was directed against a treaty creating an objective frontier regime and
regulating a territorial space; that it concerned the shared resources of a river, and that it
caused damage which was all the greater in that it threatened to leave unfinished works and
structures which by their very nature were difficult to redeploy.

28. As for the breaches of the Treaty by (Czecho)Slovakia, I regret to dissent from the
majority of the Court. We all recognize that (Czecho) Slovakia breached the 1977 Treaty, but
my view differs as to the extent and scope of the (Czecho)Slovak breach. The salient question
is how to judge the substitute solution, "Variant C", a solution chosen and applied by
Czechoslovakia. According to the majority of the Court,

"Czechoslovakia was entitled to proceed, in November 1991, to Variant C in so far as it then

confined itself to undertaking works which did not predetermine the final decision to be taken
by it. On the other hand, Czechoslovakia was not entitled to put that Variant into operation
from October 1992." (Para. 88.)
This presentation by the Court then became the subject-matter of the operative part,
subparagraphs 1 B and 1 C. I take a different view.

29. Slovakia has no hesitation in acknowledging that Variant C differs in its physical
characteristics from the structure which could have been obtained under the original Project.
Variant C in fact created an autonomous system, no longer dependent on Hungary in any way.
The idea of a joint project recedes, with legal consequences for the mode of operation of the
works, for which Slovakia now bears sole responsibility. Slovakia has, unilaterally,
appropriated a joint investment and waters of the Danube, a shared resource, over a stretch of
the river 40 or so kilometres long. The Parties' joint operation of research and profit-sharing
has been abandoned.

30. The theory of "approximate application " or "close approximation " relied on by Slovakia
in order to justify the construction and commissioning of Variant C is unconvincing. There is
no such theory in international law. The "precedents" advanced in favour of this theory are
worth-less. At least because of its dangers, this theory deserved wholehearted censure, which
1 find lacking in the Judgment.

31. Were this theory to be accepted, it would be to the detriment of legal certainty in relations
between States and in particular of the certainty of treaties and of the integrity of the
obligations properly entered into. The consolidation of this theory would virtually signal the
end of the cardinal principle pacta sunt servanda, since a State which undertakes [p128] a
specific obligation is left free to fulfil another, which it would be quite cunning to present as
being very close to the first obligation. The State would only have to observe that its
"approximate application" was allowed since, according to it, the conduct of the other party
placed it in the impossibility of performing its obligations under the treaty and since it had no
other remedy. All breaches of the obligations of the State would thus run the risk of being
presented as an "approximate application ".

The danger is all the greater in that this theory provides no reliable criterion for measuring the
tolerable degree of "proximity" or "approximation". The "distance" — or the "difference" —
which a State would be authorized to take in relation to the purpose of a treaty when
performing the obligation remains dangerously undefined and is still left to the subjective
evaluation of the State.

But this is not all.

32. What the theory of "approximate application" lacks in order to be a valid

"reinterpretation" of the treaty is quite obviously the basic condition of the consent of the
other State. Indeed Slovakia is not wrong in stating that deviations from treaty norms in the
application of the Treaty may be considered a "reinterpretation " of that Treaty. Yet this
species of "mutation" or "novation" of the obligation in its performance is subject to the
existence of an essential condition which has not been fulfilled in the present case at all. The
"approximate application" may only be recognized as valid and may only constitute a
"reinterpretation" if the other party to the Treaty has given its consent. The weakness of
Slovakia's case is only too apparent.

Moreover Hungary's position is a most distinctive one since not only did it not give its
consent to the "reinterpretation " of the Treaty, it also considers that there was neither an
original interpretation nor a re-interpretation of the Treaty since for Hungary it ceased to exist
even before the advent of Slovakia.

33. I now come to quite another aspect concerning Variant C, one which fully warrants my
adding a nuance to what I have already said. It is no secret that when States undertake
negotiations, they often envisage, in a spirit of caution and realism, other solutions should the
negotiations fail. A prudent State always approaches the negotiating table with one or more
substitute solutions up its sleeve in case of failure. It may therefore be said that envisaging a
unilateral substitute solution must necessarily be part of the customary strategy and tactics of
negotiation, sometimes in order to put more pressure on the negotiating partner. "Substitute
solu-tions" are therefore an elementary precaution in any negotiation.

34. The contrary can only be asserted if the State has shown bad faith and if it has been
demonstrated beyond doubt that it only pretended to negotiate, whereas its firm intention was
to sabotage the seeming negotiations in order to impose at all costs a unilateral solution
already decided on.

This then raises the problem as to whether Czechoslovakia respected [p129] the principle of
good faith. I shall not venture to examine this question since, in my view, both
Czechoslovakia and Hungary showed good faith, whilst each presenting the image of their
own anxiety to the other. On either side, good faith was eroded by the "drip" effect of anxiety
and distrust vis-a-vis the other Party.

35. In any event, in determining the legal validity of Variant C, the majority of the Court
made a distinction between the actual construction of this "substitute solution", held to be
lawful, and the actual diversion of the river, the final phase of Variant C, held to be unlawful.
The various operations which make up Variant C are thus dissected as it were into so many
slices of legal salami.

I cannot agree with this approach. In my opinion the construction of Variant C falls into one
of the categories of breaches termed "continuing", "composite" or "complex", depending on
their characteristics, each phase or each element of which is unlawful.

36. The majority of the Court considers that only the diversion of the river genuinely breaches
(Czecho)Slovakia's treaty obligations as well as customary international law, which prohibits
the unilateral appropriation of a shared resource. Each of the other phases prior to the
diversion is allegedly lawful, on the ground that a sovereign State is entitled to erect any
edifice it wishes on its territory, providing it does not prejudice the rights and interests of
another State.
37. However, it is precisely on this last count that the reasoning is untenable. For the
reasoning to be unassailable, it has to be shown that no phase of the construction of Variant C,
apart from the diversion of the river, prejudiced Hungary's rights and interests. This has not
been shown and appears to have been considered self-evident by the Court, after the fashion
of a postulate.

38. It is true that a State is sovereign on its own territory, on which it may erect any
construction it wishes. However, once that State is bound by a commitment, concerning the
regulation of a river basin for instance, it may no longer construct as and when it wishes a
structure relating to this river basin, or which has a link with this basin, or an effect on it.
Within the scope of the Treaty, this leaves room for nothing else but the application of this
instrument (excepting of course all the operations regarding the administration of this
territory). In other words, in its con-duct the State, sovereign of course but bound by a given
treaty obligation, must necessarily act with such caution and discernment that it need not fear
potentially compromising the performance of its treaty obligation, at any time and in relation
to any of its operations. In the field henceforth governed by a treaty, the contracting State can
no longer carry out any operation it wishes, which would be lawful only if it were totally
neutral in relation to the general structure of such a treaty.

39. At this point I must recall what I said above on the subject of the territorial nature of 1977
Treaty, which lays various mutual obligations [p130] on the two contracting States relating
either to the use of a part of the territory of each of the two States, or to restrictions on its use.
The Treaty creates a "territorial dependency" of one State in relation to the other. This being
so how can it be asserted that the State is free to act as it wishes?

40. It is important to ascertain exactly what Variant C is. Paragraph 66 of the Judgment gives
a detailed description of it and the Working Group of Independent Experts presents it in the
following terms:
"Variant C consists of a complex of structures, located in Czechoslovakia . . . The structures
include . . .:
(2) By-pass weir controlling the flow into the river Danube.
(3) Dam closing the Danubian river bed.
(4) Floodplain weir (weir in the inundation).
(5) Intake structure for the Mosoni Danube.
(6) Intake structure in the power canal.
(7) Earth barrages/dykes connecting structures.
(8) Ship lock for smaller ships . . .
(9) Spillway weir.
(10) Hydropower station." (Memorial of Slovakia, Vol. II, Ann. 12.)

This description of Variant C shows to what extent the planned structures are numerous,
"heavy ", and not at all neutral, and interfere with the initial Project, or to be more specific
change its nature.

41. In these slices of "legal salami" which supposedly constitute Variant C, the first phase
itself cannot be considered as being immaterial to the 1977 Treaty. (Czecho)Slovakia's first
act, the construction of the Cunovo dam, occurred in a river basin which was indeed on
Czechoslovak territory but this had immediate repercussions on the apportionment of water
belonging to both States, since the river was enlarged at that point into a large reservoir two-
thirds the size of the Dunakiliti reservoir. This first operation was not the kind of neutral
measure that might freely be taken by a State which was moreover bound by a commitment
relating to a certain way of regulating the river. On the contrary, it creates a situation having a
direct, immediate bearing on the provisions of the 1977 Treaty, which provisions it
substantially alters. Nowhere does the Treaty in question formally forbid Czechoslovakia to
erect a dam at Cunovo, on its own territory. However, in deciding that the dam was to be
located at Dunakiliti, the Treaty undeniably imposes on Czechoslovakia an "obligation to
abstain" from erecting this dam at Cunovo. In short, even the first operation at Cunovo could
not be left to Czechoslovakia's sole, sovereign initiative. Did not the first "diversion" of the
waters of the Danube in fact take place at Cunovo when the river, dammed at that point,
broadened into a vast "reservoir" — so to speak — to the detriment of Hungary?

42. On a totally different plane, I cannot conceive how an action by [p131] the State, forming
a link in a chain, should not take on an unlawful hue when completed by a final link, itself
acknowledged to be unlawful, since, once the Danube had been diverted, this unlawful act
was "retroactively" to serve as a "chemical indicator" casting an unlawful hue on all the
operations composing Variant C. However, in persisting in setting the construction work, said
to be definitively lawful, against the diversion of the river, apparently not unlawful, the
majority of the Court does not at all recognize the unlawfulness of Variant C as a whole.

43. That, for the majority of the Court, is a way of denying the existence of the "continuing",
"composite" or "complex wrong". It seems to me that all the effort expended in the literature
and in the case-law are compromised by this stand, as is the attempt at codification by the
Inter-national Law Commission. The unlawful nature of the "continuing wrong" is indeed
determined once the last piece of the jigsaw is in place. Yet in the literature and in the case-
law the declaration of the unlawfulness of the final link results, in most categories of wrongs,
in the unlawfulness of the entire chain. It therefore seems wrong to me to set the allegedly
lawful construction of Variant C against its allegedly unlawful final commissioning.

44. The Judgment of the Court refers to the proceedings of the International Law Commission
on State Responsibility. However, one of the paragraphs in the commentaries of the
Commission to which the Court specially refers reads:

"unlike wrongful acts of national law, the internationally wrongful act of a State is quite often
— and probably in most cases — the result of a concatenation of a number of individual
actions or omissions which, however legally distinct in terms of municipal law, constitutes
one compact whole so to speak from the point of view of international law" (Yearbook of the
International Law Commission, 1993, Vol. II, Part 2, p. 57, para. 14; emphasis added).

45. Moreover it is not so much Article 41 of the Draft Articles of the International Law
Commission on State Responsibility, cited in the Judgment of the Court, which is relevant
here, but rather Article 25. Its title {"moment and duration of the breach of an international
obligation by an act of the State extending in time") is in itself significant for the present case.
It clearly states:

"1. The breach of an international obligation by an act of the State having a continuing
character occurs at the moment when that act begins . . .
2. The breach of an international obligation by an act of a State, composed of a series of
actions or omissions in respect of separate cases, occurs at the moment when that action or
omission of the series is accomplished which establishes the existence of the composite
act . . .[p132]

3. The breach of an international obligation by a complex act of the State consisting of a

succession of actions or omissions . . . occurs at the moment when the last constituent element
of that complex act is accomplished . . ." (Emphasis added.)

In addition, however, and in all cases, the International Law Commission stated, with regard
to each of these scenarios (continuing, composite or complex act), that "Nevertheless, the time
of commission of the breach extends over the entire period." In other words, however Variant
C is classified among the above three types of wrong, the unlawfulness of the final phase, the
diversion of the river, extends to all the operations which preceded it, even supposing it not to
be a continuing offence unlawful from the outset.

46. Indeed, the unlawful nature of Variant C, from the commencement of its construction to
the diversion of the river, can only be indivisible, in view of the very nature of this "substitute
solution". As the Judgment of the Court puts it so appositely, "the main structures of the
System of Locks . . . will take the form of a co-ordinated single unit" (para. 144) or a "single
and indivisible operational system of works" (para. 77). Similarly, Variant C, which replaced
this system, is not made up of a series of unrelated operations. They depend on each other,
combining to produce the final result. The "integrated" nature of these operations results from
the fact that none of them can stand alone, nor have any meaning in itself. None of them is
neutral and is meaningful only when related to the final result. What would be the purpose of
the construction of the darn closing the bed of the Danube unless to divert the river? For a
sovereign State, which is entitled to construct whatever it wants on its own territory, building
such a dam, in isolation and on its own, would be pointless and without interest for that State,
which would not embark upon such a venture at all. The point and interest become evident
only when the operation in question is related to the final diversion of the river. The very
nature of the bypass canal built in the context of Variant C was quite obviously to divert the
waters of the main channel to the Gabcikovo power plant. Such a construction could be
neither innocent nor neutral; it bore the stamp of the end purpose of Variant C, which was the
diversion of the waters of the river. In short, it is not possible to separate the construction on
the one hand and the diversion on the other.

47. It is true that any internationally unlawful act initially begins with "preparations". I agree
with the majority of the Court in considering that such preparations stricto sensu are not
unlawful. Even the extremely advanced preparation of a "substitute solution" as leverage on
negotiations with the partner is not in itself in any way unlawful. However, once the order to
construct was given and once construction began, in November 1991, we leave the field of
preparations for that of construction. At that time, November 1991, Czechoslovakia was fully
aware that Hungary [p133] had no intention of performing the 1977 Treaty, and had then
taken the decision to divert the waters of the river. The chain of operations designed to
achieve this aim was unbroken, with no missing links, from the commencement of
construction to the commissioning of Variant C by the actual diversion of the waters in
October 1992. Nevertheless the majority of the Court held that the work concerned might
"have been abandoned [by Czechoslovakia] if an agreement had been reached between the
parties" (para. 79). I do not think one can engage in speculation of this sort with impunity.
When construction began in November 1991 and throughout this phase of the works, it was
clearly apparent, particularly from the diplomatic exchanges between the Parties, that each
Party had adopted an entrenched position. That being so, the idea mooted by the Court of an
abandonment of the works could be only hypothetical and unrealistic.

48. Thus paragraph 1 of the operative part of the Judgment is drafted in such a way that the
Court states on the one hand that Czechoslovakia acted legally in proceeding to Variant C in
November 1991 (subpara. A), but on the other that it was not entitled to put it into operation
in October 1992 (subpara. B). I am somewhat bemused, 1 must admit, by this twofold
affirmation. It is as if I were allowed to buy fruit from the market, but prevented from eating
it. It is as if the housewife had cooked a meal but were forbidden to eat it. It is as if a State
were free to purchase weapons or have them manufactured, but were not permitted to use
them if attacked. Paragraph 1 of the operative part thus reflects, in a nutshell, an analysis
which ends in stalemate.
In the final analysis, the decision of the Court concerning Variant C is, in my view, neither
correct in legal terms, nor good in practical terms, nor actually useful. It has no value, neither
in law nor in fact, nor for future bipartite negotiations.

49. So with the construction of Variant C, international waters belonging to two States and
flowing in the bed of a frontier river suddenly, over a distance of 40 kilometres from Cunovo
to Sap, become exclusively national, Slovak waters. A bilateral project, under construction on
the territory of both States as a result of a joint investment, suddenly becomes a unilateral,
purely national project. Whose fault is this? Certainly and primarily the fault of Hungary. For
the time being however this aspect does not concern me. What does deserve consideration
here is a substantial physical reality: over a distance of 40 kilometres, waters hitherto shared
become purely national waters and a bilateral project suddenly undergoes profound
modifications, fundamentally altering it into a purely national project.

50. It is clear that (Czecho)Slovakia, in so doing, applied something quite different from the
1977 Treaty. Either Variant C constitutes the application of the Treaty or it does not. In my
view there can be no intermediate situation. There is no place, in law, for an "approximate"
application of the Treaty. There are only two categories of conduct in inter-[p134]national
law: lawful and unlawful. It does not recognize any intermediate situation. Such a situation
may exist but is and will be nothing more than a fact. In relation to the Treaty, this fact may
be considered only as a non-application of the Treaty, being unlawful in nature.
51. I have therefore reached the conclusion that Variant C as a whole is unlawful. Can it
however be regarded as a countermeasure? I do not think so, and I concur with the majority of
the Court on this point. I am however tempted to qualify this. It is impossible to regard
(Czechoslovakia's conduct with utter certainty as no more than a reaction to Hungary's
unlawful acts. Another perhaps slightly more realistic view might discern in Czechoslovakia's
conduct both a premeditation and a response, creating a situation which is more complex than
a countermeasure. A premeditation to begin with. Without accepting the Hungarian view that
since 1920 Czechoslovakia had always dreamt of constructing all the works within Slovak
territory, I note that Czechoslovakia drew up different variants early in 1989, including
Variant C, as a "substitute solution". Then a response. There is no doubt that Slovakia is well
served by the chronology of events. The suspension of work by Hungary on 13 May 1989
followed by the definitive abandonment of work and finally by its decision to terminate the
Treaty on 19 May 1992 are the mechanics of the final implementation of Variant C on 23
October 1992 as a countermeasure to the Hungarian conduct.

52. In any event, and here I concur with the majority of the Court, Variant C is not a
countermeasure capable of excusing its unlawfulness. Nor indeed is it proportionate, since
from the outset it deprives Hungary of the waters of the Danube as a shared resource and also
of any control over a joint investment laid down in the 1977 Treaty. Moreover Variant C is
neither provisional nor deterrent, as a countermeasure should be. It constitutes a definitive,
irreversible breach of the 1977 Treaty.

***

53. Both parties, Hungary just as much as Slovakia, have therefore breached the 1977 Treaty.
The situation created by the parties is characterized by intersecting violations countering each
other. However it is not easy to pinpoint the links between cause and effect in each case with
certainty. The acts and conduct of the parties sometimes intercut. The chronology of events
appears to answer the question as to which of the two parties triggered the cycle of these
intersecting violations. Naturally this chronology must be taken into account; however it must
be borne in mind that it is just like the tip of an iceberg, something only to be relied upon with
caution. Alas, deep mutual distrust has characterized relations between the parties for many
years. [p135]

In holding the wrongs committed by both Parties to be "intersecting violations" the Court
could have seized this opportunity to describe a reality more complex than it appears, one
within which the links between cause and effect intercut. In so doing, it might perhaps have
been justified in suggesting that the Parties renegotiate their Treaty on the basis of a "zero
option" under which each Party waived its right to compensation from the other. The Parties
might then have redefined their treaty relations more readily within the framework of the
renewed 1977 Treaty.

***
54. On the ground, these intersecting violations gave rise to a reality which the majority of the
Court did not deem it appropriate to characterize. For my part, it seems necessary and
important to note that these intersecting violations created two effectivites which will
continue to mark the landscape of the region in question.

55. The jurist is not fond of effectivites. They violate his taste for the legal ordering of things.
On the other hand, he is aware that the realities of life are complex and that a substantial
portion of these realities inevitably escapes the rule of law. So he is sometimes realistic
enough to take account of some of these situations — when they persist — and to regard these
effectivites as an "action of the fact" against the legal title. This attitude is not only dictated by
realism but is nourished by the desire to reincorporate these effectivites into the legal
processes.

56. (Czecho)Slovakia implemented Variant C. The construction of the Gabcikovo system laid
down in the Treaty was thus effected by the substitution of Cunovo for Dunakiliti, with its
technical and physical consequences. This Variant C is illegal but it exists. Slovakia places all
the greater reliance on its effectivite because it "approximates" to the law. It was certainly
keen to assert its readiness to destroy this effectivite. But it seems clear that any questioning
of Variant C, by destruction or in any other way, would be contrary to sound economics and
ecology, and would ultimately be absurd and unacceptable to Slovakia. This is the inescapable
reality the Court has no option but to deal with in the effort to reconcile it with the law which
it is its task to state.

57. The Slovak effectivite has a twofold singularity.

Firstly, until recently it was what Charles De Visscher calls an "effectivite in action"FN2and
became consolidated when the case was "sub judice". Gabcikovo was to be constructed in two
phases. The former phase was to be completed on 23 October 1992, the date of the diversion
of the river. The second phase is now almost complete; it was constructed [p136] while the
case was before the Court. Today it is an almost complete structural effectivite.

-----------------------------------------------------------------------------------------------------------------
-----
FN2 Charles De Visscher, Théories et réalités en droit international public, 4th ed., 1970, p.
319.
-----------------------------------------------------------------------------------------------------------------
----

The second singularity of the Slovak effectivite is that it draws its strength from the facts hut
also, in part, from the law. This is a striking characteristic of this effectivite, which is
constructed, like any effectivite, against the law (in this case treaty law), but which is
nevertheless reinforced by a partial application of the Treaty, enabling Slovakia to contend
that its Variant C was nothing more than an "approximate application" of the Treaty.

In fact:
(i) the dam and hydroelectric power plant at Gabcikovo, now constructed, were provided for
in the Treaty;
(ii) the diversion of the Danube was provided for in the Treaty (the major difference being
that the river was closed at Cunovo instead of Dunakiliti); and
(iii) the Danube still flows along its original bed (with the twofold difference that it has been
closed at Cunovo and above all that Slovakia releases an insufficient volume of water daily
into the Danube, a situation which Slovakia considers might be improved).

58. As for Hungary, it has abandoned work on all fronts and has decided not to build the
Nagymaros dam. The nature of the Hungarian effectivites is rather curious.

Firstly, an effectivite may express a certain order established by the act. This is not the case
here. The Hungarian effectivites express, quite the contrary, a kind of "disorder" arising from
the abandonment of the works. They are effectivites not "in action" but in a state of prolonged
"malformation".

As for the Nagymaros site, it presents a picture of a kind of "negative" effectivite through the
abandonment of the construction of the dam. This means that the "negative" effectivite of
Nagymaros has created a definitive situation, for Hungary's will appears irrevocable.

The other Hungarian effectivites have generated a state of affairs unsatisfactory for all. This
situation is waiting to be taken in hand or "recycled" by another law, whether treaty law (a
renegotiated 1977 Treaty), or domestic law (a Hungarian decision to destroy or redeploy the
uncompleted shells).

59. Both the Slovak and Hungarian effectivites share the characteristic of enjoying a
significant degree of mutual recognition by the Parties. Despite the difficulties there are in
grasping all the nuances of the Hungarian position from one written pleading to another and
from one oral argument to another, I think that Hungary is not calling for the dismantling of
Variant C. As for Slovakia, it seems on the one hand to be seeking to adjust to the fact that the
Nagyrnaros dam does not exist by, among other things, modifying the way Gabcikovo
operates and on the other hand avoiding calling for the completion of the "large reservoir" at
Dunakiliti, which is very costly and heavily polluting, but above all duplicates the Cunovo
reservoir. [p137]

These were valuable pointers for the Court, "signals" one might say in the attempt to find
appropriate solutions, bearing in mind the law and the facts.

***

60. What is the law ? What are the facts ? First, the facts. They are constituted by the reality
on the ground, which I have just analysed as effectivites. Second, the law. The law is
constituted by the 1977 Treaty and its related instruments, which the intersecting violations of
both parties have been powerless to terminate. Consequently, there is no point in concealing
the extremely delicate nature of the task conferred upon the Court in this case where the facts
clash head on with the law, which ought, however, to have the final say. The situation may be
analysed as follows: on the one hand the 1977 Treaty has largely been stripped of its material
content, but remains a formal instrument, a receptacle or shell ready to accommodate new
commitments by the Parties; on the other hand, in parallel, effectivites have come into being
which are mutually recognized by the Parties. So it was for the Court to declare that both
Parties were under an obligation to negotiate in good faith a new content to their Treaty,
taking account of what remained of the Treaty and also the effectivites on the ground.
However it was important to emphasize above all that in taking these effectivites into account
the Court clearly had no intention whatsoever of legitimizing the unlawful facts established.
All it had to do, in a spirit of legal realism, was to take note (together with the Parties
themselves to some extent) of the effects resulting from a wholly singular succession of
intersecting violations, each of which remained reprehensible as such.

61. In order to do so, we must first examine the consideration given to the maintenance in
force of the 1977 Treaty and its significance, then the consideration of the effectivites and its
significance, before attempting to make these two elements "co-exist" within the framework
of a renewed treaty.

62. The maintenance in force of the Treaty does not mean the enforced performance of the
obligations it imposed on Hungary, obligations which to date had not been fulfilled. It is
neither necessary nor justified to infer all the logical consequences from the maintenance in
force of the Treaty. There is no question of obliging Hungary to construct the Nagymaros
dam, to complete the works at Dunakiliti, to put the diversion dam at Dunakiliti into operation
and to flood the Cunovo installations, nor to complete, upstream of Gabcikovo, that part of
the work it was to carry out under the Treaty, provided Slovakia had not already done so.

At the same time, however, any idea of legitimizing the abandonment by Hungary of its treaty
obligations must be totally excluded. Whilst accepting the effectivites as inescapable acts,
their nature as internationally unlawful acts must nonetheless be noted, acts for which
Hungary [p138] must answer by assuming its responsibility. The same holds true for the
consideration of the Slovak effectivites, whose unlawful nature has also not been eradicated.

63. The survival of the Treaty in the face of all the violations shows well enough that there is
no question of legalizing the infringements of the principle pacta sunt servanda. Although it is
prudently realistic to take account of the effectivites and not to "run headlong into" an
inescapable reality, it seems even more essential, especially for a world judicial organ
concerned to ensure that international law is respected, to show urbi et orbi that treaties are
not "scraps of paper" and that they cannot be destroyed by violating them. Save by mutual
consent, States cannot and may not rid themselves of their treaty obligations so easily. It is
vital to reinforce the legal certainty of international commitments.

64. The survival of the Treaty also makes it possible to salvage its Articles 15, 19 and 20,
relating respectively to the protection of water quality, the protection of nature and fishing
interests. They are of course extremely general, unsatisfactory articles. However they concern
essential matters which lie at the root of the current dispute between the two States. It will
therefore be for the two States to settle these vital matters of the environment, water quality
and fishing, by negotiation. In Articles 15, 19 and 20 they will find the basis for that
renegotiation.

65. Lastly, the survival of the Treaty provides a context, and even more a specific framework,
for the wishes of the two States in negotiation. It is not only Articles 15, 19 and 20 which the
survival of the Treaty will salvage. More than that, the 1977 Treaty will make it possible to
conserve the general philosophy and the major principles which have inspired this association
between two States with a view to a joint investment, from which they could expect mutual
benefits. The Treaty will serve as a framework, and the wishes of the two States will thus be
channelled in order to avoid undesirable excesses, or, conversely, any reluctance, by either
Party. The Treaty which survives already contains a number of accepted guidelines and useful
principles to point the way for future negotiation. In particular, apart from Articles 15, 19 and
20, the following points need to be further developed and adjusted, but in principle are already
accepted. These are:

(a) "the development of water resources, energy, transport, agriculture and other sectors of the
national economy of the Contracting Parties" (Preamble to the Treaty);
(b) "improved old bed of the Danube ..." (Art. 1, para. 2 (e));
(c) "deepened and regulated bed of the Danube" (Art. 1 para. 2 (f));
(d) "flood-control works" (Art. 1, para. 3 (a), and Art. 13); [p139]
(e) "deepened and regulated bed of the Danube, in both its branches ..." (Art. 1, para. 3 (c));
(f) the principles which have presided over the distinction between joint investment and
national investment (Art. 2);
(g) the "responsibility for the costs of the joint investment" (Art. 5), which will enable the
future negotiators to assess the costs and to calculate how much of these costs each Party has
already paid and for how much it still remains responsible;
(h) the determination of the joint and separate ownership of each State with respect to each of
the structures already built (Article 8 of the Treaty). The bypass canal constructed by
Czechoslovakia alone is regarded as joint property by Article 8 (b), which is normal in this
system of joint investment and operation, but Hungary, which must legitimately accede to this
joint property, will have to pay its part of the construction of that canal;
(i) the method for the joint operation of the works (Arts. 9 and 10) and the principle of
participation "in the use and in the benefits of the system . . . in equal measure" (Art. 9, para.
1);
(j) the withdrawal of water from the Danube and the rules and guarantees which apply to the
Parties;
(k) the protection of water quality (Art. 15, cited above), the maintenance of the bed of the
Danube (Art. 16); the rules for navigation (Art. 18); the protection of the environment (Arts.
19 and 20, cited above);
(l) the determination of the State boundary line between the two Parties (Art. 22); and lastly
(m) joint liability and separate liability in the event of damage (Arts. 25 and 26).

So much for the survival of the 1977 Treaty and its significance. Let us now examine the
consideration of the effectivites and then its significance.

66. The significance to be attached to taking account of the effectivites must be indicated,
which is a way of highlighting the conditions placed upon their ultimate harmonization with
the law. In the traditional scenarios, the State invokes an effectivite against a title, in other
words against the law itself. In this case on the other hand, taking account of the effectivites is
not tantamount to a negation of the title. The title does not disappear; it merely adapts and
does so, moreover, through involving the responsibility of the authors of these effectivites,
who will be liable for all the necessary compensation. The law, trampled by the effectivites, is
thus "avenged" by the price paid by the Parties in the form of compensation for the
effectivites created. It is on this condition, in particular, that co-existence will develop
between these effectivites which have been "paid for" and the law which has been "avenged".

67. With this in mind, we shall first see how the Parties could adapt these effectivites in their
negotiations to incorporate them into the new [p140] Treaty. The starting point to be borne in
mind is that these effectivites are recognized by both Parties.

For its part, Hungary only requests the dismantling of Variant C, which it knows is unlikely, if
the new agreement to be concluded prevents it from benefiting from this variant.

Slovakia has only requested that Hungary be obliged to build the Nagymaros dam if the two
Parties cannot manage to modify the Treaty by an agreement taking account of the fact that
the dam has not been built. According to its written pleadings and oral arguments, Slovakia
does indeed appear to accept the autonomous operation of the Gabcikovo hydroelectric plant,
in other words its operation independently of the Nagymaros dam. And instead of the peak-
mode operation of Gabcikovo, which was only possible with a dam at Nagymaros, it agrees to
the run-of-the-river operation of Gabcikovo, thus appearing to be resigned to this situation,
which, moreover, is only too evident to the observer.

Lastly, Hungary and Slovakia do apparently fully accept the closure at Cunovo and the
abandonment of Dunakiliti respectively.

68. While these effectivites, adapted as they have been or will be to fit the mould of a new
treaty, may have breached and exceeded the existing law, the law reins them in and governs
them again in three ways:

— these effectivites do not kill the Treaty, which survives them;

— these effectivites do not go unpunished and entail sanctions and compensation;
— and above all, these effectivites will be "recast", or inserted into the Treaty, whose new
content to be negotiated will serve as a legitimizing text for them.

69. This brings me to the necessity for the Parties to negotiate again and to do so in good
faith. The renegotiation must be seen as a strict obligation, exactly like the good faith conduct
it implies. This obligation flows not only from the Treaty itself, but also from general
international law as it has developed in the fields of international watercourses and the
environment.

70. In this context of a reconstituted negotiation, the Parties will have to find, unless they
agree otherwise, the appropriate solutions for a number of questions and, in particular, but not
exclusively, the following ones:

— the necessity to wipe the slate of the past clean and for each to pay the price for their
wrongful conduct and their effect ivite; the "zero option", moreover, would not be
incompatible with this necessity;
— the necessity to reconstitute or remodel the material content of the Treaty by achieving a
"comprehensive balance" between them, in their rights and obligations;
— lastly, the necessity to rectify the operation of certain elements in order to avoid ecological
dangers and harm. [p141]

71. In the search for new "comprehensive balances" in the Treaty, unless they agree
otherwise, the Parties will have to negotiate the conditions for restoring Hungary to its status
as a partner in the use of the water, restoring its rights over the water downstream of Cunovo
as far as Sap downstream of the confluence between the canal and the original course of the
river, involving that country, with equal responsibilities, in the operation and management of
Variant C, which thus passes from the status of an effectivite to that of a novation jointly
agreed in the context of a renovated treaty; and lastly enabling Hungary to enjoy, on an equal
footing, the benefits achieved by the implementation of this "provisional solution" (Variant C)
which, in the renewed Treaty, has become a "definitive and irreversible solution".
Lastly, unless they agree otherwise, the Parties will also have to negotiate the conditions for
restoring Hungary to its status as co-owner of the works supposed to have been built jointly,
given that the Parties will have to reconsider the matter of co-ownership, taking due account
of the amounts paid by each of them as part of the joint investment, of the compensation paid
and weighing up these and any other elements which each of them considers relevant.

(Signed) Mohammed BEDJAOUI.

[p142]

SEPARATE OPINION OF JUDGE KOROMA

I have voted in favour of most of the operative part of the Judgment, principally because I
concur with the Court's finding, in response to the questions submitted to it in the Special
Agreement, that Hungary was not entitled to suspend and subsequently to abandon in 1989
the works on the Nagymaros Project and on the part of the Gabcikovo Project on the Danube
river for which it was responsible under the 1977 Treaty, that the Treaty continues to be in
force and consequently governs the relationship between the Parties.

In making such a finding the Court not only reached the right decision in my view, but
reached a decision which is in accordance with the 1977 Treaty, and is consistent with the
jurisprudence of the Court as well as the general principles of international law. Foremost
among these principles is that of pacta sunt servanda which forms an integral part of
international law. Any finding to the contrary would have been tantamount to denying respect
for obligations arising from treaties, and would also have undermined one of the fundamental
principles and objectives of the United Nations Charter calling upon States "to establish
conditions under which justice and respect for the obligations arising from treaties . . . can be
maintained", and "to achieve international co-operation in solving problems of an economic,
social . . . character".

When Czechoslovakia (later Slovakia) and Hungary agreed by means of the 1977 Treaty to
construct the Gabcikovo-Nagymaros barrage system of locks on the Bratislava-Budapest
sector of the river for the development and broad utilization of its water resources, particularly
for the production of energy, and for purposes connected with transport, agriculture and other
sectors of the national economy, this could be seen as a practical realization of such
objectives, since the Danube has always played a vital part in the commercial and economic
life of its riparian States, underlined and reinforced by their interdependence.

Prior to the adoption of the Treaty and the commencement of the Project itself, both
Czechoslovakia and Hungary had recognized that whatever measures were taken to modify
the flow of the river, such as those contemplated by the Project, they would have
environmental effects, some adverse. Experience had shown that activities carried on
upstream tended to produce effects downstream, thus making international co-operation all
the more essential. With a view to preventing, avoiding and mitigating such impacts,
extensive studies on the environment were undertaken by the Parties prior to the conclusion of
the Treaty. The Treaty itself, in its Articles 15, 19 and 20, imposed strict obligations regarding
[p143] the protection of the environment which were to be met and complied with by the
contracting parties in the construction and operation of the Project.

When in 1989 Hungary, concerned about the effects of the Project on its natural environment,
suspended and later abandoned works for which it was responsible under the 1977 Treaty this
was tantamount to a violation not only of the Treaty itself but of the principle of pacta sunt
ser-vanda.

Hungary invoked the principle of necessity as a legal justification for its termination of the
Treaty. It stated, inter alia, that the construction of the Project would have significantly
changed that historic part of the Danube with which the Project was concerned; that as a result
of opera-tion in peak mode and the resulting changes in water level, the flora and fauna on the
banks of the river would have been damaged and water quality impaired. It was also
Hungary's contention that the completion of the Project would have had a number of other
adverse effects, in that the living conditions for the biota of the banks would have been
drastically changed by peak-mode operation, the soil structure ruined and its yield diminished.
It further stated that the construction might have resulted in the waterlogging of several
thousand hectares of soil and that the groundwater in the area might have become over-
salinized. As far as the drinking water of Budapest was concerned, Hungary contended that
the Project would have necessitated further dredging; this would have damaged the existing
filter layer allowing pollutants to enter nearby water supplies.
On the other hand, the PHARE Report on the construction of the reservoir at Cunovo and the
effect this would have on the water quality offered a different view. The Report was
commissioned by the European Communities with the co-operation of, first, the Government
of the Czech and Slovak Federal Republic and, later, the Slovak Republic. It was described as
presenting a reliable integrated modelling system for analysing the environmental impact of
alternative management regimes in the Danubian lowland area and for predicting changes in
water quality as well as conditions in the river, the reservoir, the soil and agriculture.

As to the effects of the construction of the dam on the ecology of the area, the Report reached
the conclusion that whether the post-dam scenarios represented an improvement or otherwise
would depend on the ecological objectives in the area, as most fundamental changes in eco-
systems depended on the discharge system and occurred slowly over many years or decades,
and, no matter what effects might have been felt in the ecosystem thus far, they could not be
considered as irreversible.

With regard to water quality, the Report stated that groundwater quality in many places
changed slowly over a number of years. With this in mind, comprehensive modelling, some of
which entailed modelling impacts for periods of up to 100 years, was undertaken and the
conclu-[p144]
sion reached that no problems were predicted in relation to groundwater quality.

The Court in its Judgment, quite rightly in my view, acknowledges Hungary's genuine
concerns about the effect of the Project on its natural environment. However, after careful
consideration of the conflicting evidence, it reached the conclusion that it was not necessary
to determine which of these points of view was scientifically better founded in order to
answer the question put to it in the Special Agreement. Hungary had not established to the
satisfaction of the Court that the construction of the Project would have led to the
consequences it alleged. Further, even though such damages might occur, they did not appear
imminent in terms of the law, and could otherwise have been prevented or redressed. The
Court, moreover, stated that such uncertainties as might have existed and had raised
environmental concerns in Hungary could otherwise have been addressed without having to
resort to unilateral suspension and termination of the Treaty. In effect, the evidence was not of
such a nature as to entitle Hungary to unilaterally suspend and later terminate the Treaty on
grounds of ecological necessity. In the Court's view, to allow that would not only destabilize
the security of treaty relations but would also severely undermine the principle of pacta sunt
servanda.
Thus it is not as if the Court did not take into consideration the scientific evidence presented
by Hungary in particular regarding the effects on its environment of the Project, but the Court
reached the conclusion that such evidence was not sufficient to allow Hungary unilaterally to
suspend or terminate the Treaty. This finding, in my view, is not only of significance to
Slovakia and Hungary — the Parties to the dispute — but it also represents a significant
statement by the Court rejecting the argument that obligations assumed under a validly
concluded treaty can no longer be observed because they have proved inconvenient or as a
result of the emergence of a new wave of legal norms, irrespective of their legal character or
quality. Accordingly, not for the first time and in spite of numerous breaches over the years,
the Court has in this case upheld and reaffirmed the principle that every treaty in force is
binding upon the parties and must be performed in good faith (Article 26 of the Vienna
Convention on the Law of Treaties).

Nor can this finding of the Court be regarded as a mechanical application of the principle of
pacta sunt servanda or the invocation of the maxim summun jus summa injuria but it ought
rather to be seen as a reaffirmation of the principle that a validly concluded treaty can be
suspended or terminated only with the consent of all the parties concerned. Moreover, the
Parties to this dispute can also draw comfort from the Court's finding in upholding the
continued validity of the Treaty and enjoining them to fulfil their obligations under the Treaty
so as to achieve its aims and objectives.[p145]

I also concur with the Court's findings that Czechoslovakia was entitled to proceed, in
November 1991, to Variant C in so far as it then confined itself to undertaking works which
did not predetermine its final decision. On the other hand, I cannot concur with the Court's
finding that Czechoslovakia was not entitled to put Variant C into operation from October
1992. The Court reached this latter conclusion after holding that Hungary's suspension and
abandonment of the works for which it was responsible under the 1977 Treaty was unlawful,
and after acknow-ledging the serious problems with which Czechoslovakia was confronted as
a result of Hungary's decision to abandon the greater part of the construction of the System of
Locks for which it was responsible under the Treaty. The Court likewise recognized that huge
investments had been made, that the construction at Gabcikovo was all but finished, the
bypass canal completed, and that Hungary itself, in 1991, had duly fulfilled its obligations
under the Treaty in this respect by completing work on the tailrace canal. The Court also
recognized that not using the system would not only have led to considerable financial losses
of some $2.5 billion but would have resulted in serious consequences for the natural
environment.

It is against this background that the Court also reaffirmed the principle of international law
that, subject to the appropriate limitations, a State party to a treaty, when confronted with a
refusal by the other party to perform its part of an agreed project, is free to act on its own
territory and within its own jurisdiction so as to realize the original object and purpose of the
treaty, thereby limiting for itself the damage sustained and, ultimately, the compensatory
damages to be paid by the other party.

As the Judgment recalled, Article 1 of the 1977 Treaty stipulated that the Gabcikovo-
Nagymaros Project was to comprise a "joint investment" and to constitute a "single and
operational system of locks", consisting of two sections, Gabcikovo and Nagymaros.
According to Article 5, paragraph 5, of the Treaty, each of the contracting parties had specific
responsibilities regarding the construction and operation of the System of Locks.
Czechoslovakia was to be responsible for, inter alia:

"(1) the Dunakiliti-Hrusov head-water installations on the left bank, in Czechoslovak

territory;
(2) the head-water canal of the by-pass canal, in Czechoslovak territory;
(3) the Gabcikovo series of locks, in Czechoslovak territory;
(4) the flood-control works of the Nagymaros head-water installations, in Czechoslovak
territory, with the exception of the lower Ipel district;
(5) restoration of vegetation in Czechoslovak territory." [p146]

Hungary was to be responsible for, inter alia:

"(1) the Dunakiliti-Hrusov head-water installations on the right bank, in Czechoslovak

territory, including the connecting weir and the diversionary weir;
(2) the Dunakiliti-Hrusov head-water installations on the right bank, in Hungarian territory;
(3) the Dunakiliti dam, in Hungarian territory;
(4) the tail-water canal of the by-pass canal, in Czechoslovak territory;
(5) deepening of the bed of the Danube below Palkovicovo, in Hungarian and Czechoslovak
territory;
(6) improvement of the old bed of the Danube, in Hungarian and Czechoslovak territory;
(7) operational equipment of the Gabcikovo system of locks (transport equipment,
maintenance machinery), in Czechoslovak territory;
(8) the flood-control works of the Nagymaros head-water installations in the lower Ipel
district, in Czechoslovak territory;
(9) the flood-control works of the Nagymaros head-water installations, in Hungarian territory;
(10) the Nagymaros series of locks, in Hungarian territory;
(11) deepening of the tail-water bed below the Nagymaros system of locks, in Hungarian
territory;
(12) operational equipment of the Nagymaros system of locks (transport equipment,
maintenance machinery), in Hungarian territory;
(13) restoration of vegetation in Hungarian territory."

In accordance with the Treaty and the concept of joint investment, some of those structures,
such as the Dunakiliti weir, the bypass canal, the Gabcikovo dam and the Nagymaros dam
were to become joint property, irrespective of the territory on which they were located.

As noted in the Judgment, by the spring of 1989 the work on Gabcikovo was well advanced:
the Dunakiliti dam was 90 per cent complete, the Gabcikovo dam was 85 per cent complete,
the bypass canal was between 60 per cent complete (downstream of Gabcikovo) and 95 per
cent complete (upstream of Gabcikovo), and the dykes of the Dunakiliti-Hrusov reservoir
were between 70 and 98 per cent complete. This was not the case in the Nagymaros sector
where, although the dykes had been built, the only structure relating to the dam itself was the
coffer-dam which was to facilitate its construction.
When Hungary, on 13 May 1989, decided to suspend works on the Nagymaros part of the
Project because of alleged ecological hazards and later extended this to the Gabcikovo
section, thereby preventing the scheduled damming of the Danube in 1989, this had a
considerable, [p147] negative impact on the Project — which was envisaged as an integrated
project and depended on the actual construction of the planned installations at Nagymaros and
Gabcikovo. Hungary's contribution was therefore considered indispensable, as some of the
key structures were under its control and situated on its territory.

Following prolonged and fruitless negotiations with Hungary regarding the performance of
their obligations under the Treaty, Czechoslovakia proceeded, in November 1991, to what
came to be known as the "provisional solution", or Variant C. This was put into operation
from October 1992 with the damming up of the Danube at river kilometre 1851.7 on
Czechoslovak territory with resulting consequences on water and the navigation channel. It
entailed the diversion of the Danube some 10 kilometres upstream of Dunakiliti on
Czechoslovak territory. In its final stage it included the construction at Cunovo of an overflow
dam and a levee linking that dam to the south bank of the bypass canal. The corresponding
reservoir was designed to have a smaller surface area and provided approximately 30 per cent
less than the storage initially contemplated. Provision was made for ancillary works, namely:
an intake structure to supply the Mosoni Danube; a weir to enable, inter alia, flood water to be
directed along the old bed of the Danube; an auxiliary ship-lock; and two hydroelectric plants
(one capable of an annual production of 4 GWh on the Mosoni Danube, and the other with a
production of 174 GWh on the old course of the Danube). The supply of the water to the side-
arms of the Danube on the Czechoslovak bank was to be secured by means of two intake
structures on the bypass canal at Dobrohost and Gabcikovo. Not all problems were solved: a
solution was to be found for the Hungarian bank, and the question of lowering the bed of the
Danube at the confluence of the bypass canal and the old bed of the river remained.

In justification of the action, Slovakia contended that this solution was as close to the original
project as possible and that Czechoslovakia's decision to proceed with it was justified by
Hungary's decision to suspend and subsequently abandon the construction works at
Dunakiliti, which had made it impossible for Czechoslovakia to attain the object and purpose
contemplated by the 1977 Treaty. Slovakia further explained that Variant C represented the
only possibility remaining to it of fulfilling the purposes of the 1977 Treaty, including the
continuing obligation to implement the Treaty in good faith. It further submitted that Variant
C for the greater part was no more than what had already been agreed to by Hungary, and that
only those modifications were made which had become necessary by virtue of Hungary's
decision not to implement its obligations under the Treaty.

In spite of what appeared to me not only a cogent and reasonable explanation for its action but
also an eminently legal justification for [p148] Variant C, the Court found that, though there
was a strong factual similarity between Variant C and the original Project in its upstream
component (the Gabcikovo System of Locks), the difference from a legal point of view was
striking. It observed that the basic characteristics of the 1977 Treaty provided for a "joint
investment", "joint ownership" of the most important construction of the Gabcikovo-
Nagymaros Project and for the operation of this "joint property" as a "co-ordinated single
unit". The Court reasoned that all this could not be carried out by unilateral action such as that
involving Variant C and that, despite its physical similarity with the original Project, it
differed sharply in its legal characteristics. The Court also found that, in operating Variant C,
Slovakia essentially appropriated for its own use and benefit between 80 and 90 per cent of
the waters of the Danube before returning them to the main bed of the river downstream of
Gabcikovo. This act, in the Court's view, deprived Hungary of its right to an equitable share
of the natural resources of the river, this being not only a shared international watercourse but
an international boundary river.

In the light of these findings, the Court concluded that Czechoslovakia, by putting into
operation Variant C, did not apply the Treaty, but, on the contrary, violated certain of its
express provisions and in so doing committed an internationally wrongful act. In its
reasoning, the Court stated that it had placed emphasis on the "putting into operation" of
Variant C, the unlawfulness residing in the damming of the Danube.

This finding by the Court calls for comment. In the first place, it is to be recalled that the
Court found that Hungary's suspension and unilateral termination of the Treaty was unlawful.
Secondly, the Court held that a State party confronted, as Czechoslovakia was, with a refusal
by the other party to perform its part of an agreed project is entitled to act on its own territory
and within its own jurisdiction so as to realize the object and purpose of the treaty. This
notwithstanding, the Court took exception to the fact that Variant C did not meet the
requirements of Articles 1, 8, 9 and 10 of the 1977 Treaty regarding a "single and operational
system of locks", "joint ownership" and "use and benefits of the system of locks in equal
measure". In its view, "by definition all this could not be carried out by unilateral measure".
This stricture of Variant C is not, in my respectful opinion, warranted. The unilateral
suspension and termination of the Treaty and the works for which Hungary was responsible
under it had amounted not only to a repudiation of the Treaty; it frustrated the realization of
the Project as a single and operational system of works Jointly owned and used for the benefit
of the contracting parties in equal measure. As a result of Hungary's acts, the objective of the
original Project could only have been achieved by Slovakia alone operating it; according to
the material before the Court, Variant C constituted the minimum modification of the original
Project necessary to enable the aim and objective of the original Project to be [p149] realized.
It should be recalled that but for the suspension and abandonment of the works, there would
have been no Variant C, and without Variant C, the objective of the act of Hungary which the
Court has qualified as unlawful would have been realized thus defeating the object and
purpose of the Treaty. In my view Variant C was therefore a genuine application of the Treaty
and it was indispensable for the realization of its object and purpose. If it had not proceeded to
its construction, according to the material before the Court, Czechoslovakia would have been
stranded with a largely finished but inoperative system, which had been very expensive both
in terms of cost of construction and in terms of acquiring the necessary land. The
environmental benefits in terms of flood control, which was a primary object and purpose of
the Treaty, would not have been attained. Additionally, the unfinished state of the
constructions would have exposed them to further deterioration through continued
inoperation.

Variant C was also held to be unlawful by the Court because, in its opinion, Czechoslovakia,
by diverting the waters of the Danube to operate Variant C, unilaterally assumed control of a
shared resource and thereby deprived Hungary of its right to an equitable share of the natural
resources of the river — with the continuing effects of the diversion of these waters upon the
ecology of the riparian area of the Szigetkoz — and failed to respect the degree of
proportionality required by international law.
The implication of the Court's finding that the principle of equitable utilization was violated
by the diversion of the river is not free from doubt. That principle, which is now set out in the
Convention on the Non-Navigational Uses of International Watercourses, is not new.

While it is acknowledged that the waters of rivers must not be used in such a way as to cause
injury to other States and in the absence of any settled rules an equitable solution must be
sought (case of the Diversion of Water from the Meuse, Judgment, 1937, P.C.I.J., Series A/B,
No. 70), this rule applies where a treaty is absent. In the case under consideration Article 14,
paragraph 2, of the 1977 Treaty provides that the contracting parties may, without giving prior
notice, both withdraw from the Hungarian-Czechoslovak section of the Danube, and
subsequently make use of the quantities of water specified in the water balance of the
approved Joint Contractual Plan. Thus, the withdrawal of excess quantities of water from the
Hungarian-Czechoslovak section of the Danube to operate the Gabcikovo section of the
system was contemplated with compensation to the other party in the form of an increased
share of electric power. In other words, Hungary had agreed within the context of the Project
to the diversion of the Danube (and, in the Joint Contractual Plan, to a provisional measure of
withdrawal of water from the Danube). Accordingly, it would appear that the normal
entitlement of the Parties [p150] to an equitable and reasonable share of the water of the
Danube under general international law was duly modified by the 1977 Treaty which
considered the Project as a lex specialis. Slovakia was thus entitled to divert enough water to
operate Variant C, and more especially so if, without such diversion, Variant C could not have
been put into productive use. It is difficult to appreciate the Court's finding that this action
was unlawful in the absence of an explanation as to how Variant C should have been put into
operation. On the contrary, the Court would appear to be saying by implication that, if Variant
C had been operated on the basis of a 50-50 sharing of the waters of the Danube, it would
have been lawful. However, the Court has not established that a 50-50 ratio of use would have
been sufficient to operate Variant C optimally. Nor could the Court say that the obligations of
the Parties under the Treaty had been infringed or that the achievement of the objectives of
the Treaty had been defeated by the diversion. In the case concerning the Diversion of Water
from the Meuse, the Court found that, in the absence of a provision requiring the consent of
Belgium, "the Netherlands are entitled ... to dispose of the waters of the Meuse at Maestricht"
provided that the treaty obligations incumbent on it were not ignored {Judgment, 1937,
P.C.I.J., Series A/B, No. 70, p. 30). Applying this test in the circumstances which arose,
Variant C can be said to have been permitted by the 1977 Treaty as a reasonable method of
implementing it. Consequently Variant C did not violate the rights of Hungary and was
consonant with the objectives of the Treaty regime.

Moreover the principle of equitable and reasonable utilization has to be applied with all the
relevant factors and circumstances pertaining to the international watercourse in question as
well as to the needs and uses of the watercourse States concerned. Whether the use of the
waters of a watercourse by a watercourse State is reasonable or equitable and therefore lawful
must be determined in the light of all the circumstances. To the extent that the 1977 Treaty
was designed to provide for the operation of the Project, Variant C is to be regarded as a
genuine attempt to achieve that objective.
One consequence of this finding by the Court is its prescription that unless the Parties
otherwise agree, Hungary shall compensate Slovakia for the damage sustained by
Czechoslovakia and by Slovakia on account of the wrongful suspension and abandonment by
Hungary of the works for which it was responsible; and Slovakia shall compensate Hungary
for the damage it has sustained on account of the putting into operation of the "provisional
solution" by Czechoslovakia and its maintenance in service by Slovakia.

While this finding would appear to aim at encouraging the Parties to negotiate an agreement
so as realize the aims and objectives of the Treaty, albeit in a modified form, it appears to
suggest that the Court considered the wrongful conduct of the Parties to be equivalent. This
somehow emasculates the fact that the operation of Variant C would not [p151] have been
necessary if the works had not been suspended and terminated in the first place. It was this
original breach which triggered the whole chain of events. At least a distinction should have
been drawn between the consequences of the "wrongful conduct" of each Party, hence my
unwillingness to concur with the finding. While Article 38, paragraph 2, of its Statute allows
the Court to decide a case ex aequo et bono, this can only be done with the agreement of the
parties to a dispute.

The Judgment also alluded to "the continuing effects of the diversion of these waters on the
ecology of the riparian area of the Szigetkoz". It is not clear whether by this the Court had
reached the conclusion that significant harm had been caused to the ecology of the area by the
operation of Variant C.

In the light of the foregoing considerations, I take the view that the operation of Variant C
should have been considered as a genuine attempt by an injured party to secure the
achievement of the agreed objectives of the 1977 Treaty, in ways not only consistent with that
Treaty but with international law and equity.

In his separate opinion in the case concerning the Diversion of Water from the Meuse, Judge
Hudson stated that

"[Wjhat are widely known as principles of equity have long been considered to constitute a
part of international law, and as such they have often been applied by international
tribunals, . . ." (Judgment, ¡937, P.C.I.J., Series A/B, No. 70, p. 76).

He went on to point out that

"It would seem to be an important principle of equity that where two parties have assumed an
identical or a reciprocal obligation, one party which is engaged in a continuing non-
performance of that obligation should not be permitted to take advantage of a similar non-
performance of that obligation by the other party. The principle finds expression in the so-
called maxims of equity which exercised great influence in the creative period of the
development of the Anglo-American law. Some of these maxims are . . .; 'He who seeks
equity must do equity.' It is in line with such maxims that 'a court of equity refuses relief to a
plaintiff whose conduct in regard to the subject-matter of the litigation has been improper' (13
Halsbury's Laws of England (2nd ed., 1934), p. 87). A very similar principle was received
into Roman Law. The obligations of a vendor and a vendee being concurrent, 'neither could
compel the other to perform unless he had done, or tendered, his own part' (Buckland, Text
Book of Roman Law (2nd ed., 1932), p. 493)." (Ibid., p. 77.)

Judge Hudson took the view that:

"The general principle is one of which an international tribunal should make a very sparing
application. It is certainly not to be [p152] thought that a complete fulfilment of all its
obligations under a treaty must be proved as a condition precedent to a State's appearing
before an international tribunal to seek an interpretation of that treaty. Yet, in a proper case,
and with scrupulous regard for the limitations which are necessary, a tribunal bound by
international law ought not to shrink from applying a principle of such obvious fairness."
(P.C.I.J., Series A/B, No. 70, p. 77.)

Judge Hudson continued,

"Yet, in a particular case in which it is asked to enforce the obligation to make reparation, a
court of international law cannot ignore special circumstances which may call for the
consideration of equitable principles." (Ibid., p. 78.)

It is my view that this case, because of the circumstances surrounding it, is one which calls for
the application of the principles of equity.

The importance of the River Danube for both Hungary and Slovakia cannot be overstated.
Both countries, by means of the 1977 Treaty, had agreed to co-operate in the exploitation of
its resources for their mutual benefit. That Treaty, in spite of the period in which it was
concluded, would seem to have incorporated most of the environmental imperatives of today,
including the precautionary principle, the principle of equitable and reasonable utilization and
the no-harm rule. None of these principles was proved to have been violated to an extent
sufficient to have war-ranted the unilateral termination of the Treaty. The Court has gone a
long way, rightly in my view, in upholding the principle of the sanctity of treaties. Justice
would have been enhanced had the Court taken account of special circumstances as
mentioned above.

(Signed) Abdul G. KOROMA. [p153]

DISSENTING OPINION OF JUDGE ODA

Introduction

1. I have voted against operative paragraph 1C of the Judgment (para. 155) as I am totally
unable to endorse the conclusions that, on the one hand, "Czechoslovakia was entitled to
proceed, in November 1991, to the 'provisional solution'" and, on the other hand, that
"Czechoslovakia was not entitled to put into operation, from October 1992, this 'provisional
solution'" and I cannot subscribe to the reasons given in the Judgment in support of those
conclusions.

I have also voted against operative paragraph 2D (para. 155). I have done so because the
request made by myself and other judges to separate this paragraph into two so that it could be
voted on as two separate issues was simply rejected for a reason which I do not understand. I
have therefore had to vote against this paragraph as a whole, although I had wanted to support
the first part of it.

I am in agreement with the conclusions that the Court has reached on the other points of the
operative paragraph of the Judgment. However, even with regard to some of the points which
I support, my reasoning differs from that given in the Judgment. I would like to indicate
several points on which I differ from the Judgment through a brief presentation of my overall
views concerning the present case.

I. The 1977 Treaty and the Joint Contractual Plan (JCP) for the Gabcíkovo-Nagymaros
System of Locks

2. (The Project.) The dispute referred to the Court relates to a Project concerning the
management of the river Danube between Bratislava and Budapest, which a number of
specialists serving the Governments of Czechoslovakia and Hungary, as well as those
employed in corporations of those two States (which were governed in accordance with the
East European socialist regime), had been planning since the end of the Second World War
under the guidance of the Soviet Union.

It is said that Hungary had, even before the rise of the communist regime, proposed the
building of a power plant at Nagymaros on Hungarian territory. However, with the co-
operation of the socialist countries and under the leadership of the Soviet Union, the initiative
for the man-agement of the river Danube between Bratislava and Budapest was taken over by
Czechoslovakia, and the operational planning was undertaken by technical staff working for
COMECON. [p154]

The Project would have entailed the construction of (i) a bypass canal to receive water
diverted at the Dunakiliti dam (to be constructed on Hungarian territory) and (ii) two power
plants (one at Gabcikovo on the bypass canal on Czechoslovak territory and one at
Nagymaros on Hungarian territory). It may well have been the case that the bypass canal was
also required for the future management of the river Danube with respect to flood prevention
and the improvement of international navigation facilities between Bratislava and Budapest.
However, the bypass canal was aimed principally at the operation of the Gabcikovo power
plant on Czechoslovak territory and the Dunakiliti dam, mostly on Hungarian territory, was
seen as essential for the filling and operation of that canal, while the Nagymaros System of
Locks on Hungarian territory was to have been built for the express purpose of generating
electric power at Nagymaros and partially for the purpose of supporting the peak-mode
operation of the Gabcikovo power plant.
The whole Project would have been implemented by means of "joint investment" aimed at the
achievement of "a single and indivisible operational system of works" (1977 Treaty, Art. 1,
para. 1).

3. (The 1977 Treaty.) The Project design for the Gabcikovo-Nagy-maros System of Locks had
been developed by administrative and technical personnel in both countries and its realization
led to the conclusion, on 16 September 1977, of the Treaty Concerning the Construction and
Operation of the Gabcikovo-Nagymaros System of Locks. I shall refer to this Treaty as the
1977 Treaty.

The 1977 Treaty was signed by the Heads of each Government (for Czechoslovakia, the
Prime Minister; for Hungary, the Chairman of the Council of Ministers), and registered with
the United Nations Secretariat (UNTS, Vol. 236, p. 241). It gave, on the one hand, an overall
and general picture (as well as some details of the construction plan) of the Project for the
Gabcikovo-Nagymaros System of Locks (which would, however, have in essence constituted
a "partnership" according to the concept of municipal law) (see 1977 Treaty, Chaps. I-IV),
while, on the other hand, it aimed, as an ordinary international treaty, to serve as an
instrument providing for the rights and duties of both parties in relation to the future
management of the river Danube (see 1977 Treaty, Chaps. V-XI).

Under the plan described in the 1977 Treaty, the cost of the "joint investment" in the system
of locks was to have been borne by the respective parties and the execution of the plan,
including labour and supply, was to have been apportioned between them (1977 Treaty, Art.
5). The Dunakiliti dam, the bypass canal, the Gabcikovo series of locks and the Nagymaros
series of locks were to have been owned jointly (1977 Treaty, Art. 8) and the parties assumed
joint responsibility for the construction of those structures. More concretely, the project for
the diversion of the waters of the river Danube at Dunakiliti (on Hungarian territory) into
[p155] the bypass canal (on the territory of Czechoslovakia), and the construction of the dams
together with the power stations at Gabcikovo and Nagymaros were to have been funded
jointly by the parties. The electric power generated by those two power stations was to have
been available to them in an equal measure (1977 Treaty, Art. 9).

It must be noted, however, that the 1977 Treaty does not seem to have been intended to
prescribe in detail the content of the construction plan, that being left to the Joint Construction
Plan to be drafted by the parties — which, for the sake of convenience, I shall refer to as the
JCP. While some detailed provisions in Chapters I-IV of the 1977 Treaty concerning the
completion of the Project did in fact, as stated above, correspond to provisions subsequently
incorporated into the JCP, the Preamble to the 1977 Treaty confines itself to stating that
"[Hungary and Czechoslovakia] decided to conclude an Agreement concerning the
construction and operation of the Gabcikovo-Nagymaros System of Locks". The 1977 Treaty
lacks the form of words usually present in any international treaty which generally indicates
that the parties have thus agreed the following text (which text usually constitutes the main
body of the treaty). This fact further reinforces the view that the 1977 Treaty is intended only
to indicate the basic construction plan of the Project and to leave the details of planning to a
separate instrument in the form of the JCP.

4. (The Joint Contractual Plan.) The drafting of the JCP was already anticipated in the
Agreement regarding the Drafting of the Joint Contractual Plan concerning the Gabcikovo-
Nagymaros Barrage System of 6 May 1976 (hereinafter referred to as the 1976
AgreementFN1), signed by plenipotentiaries at the level of Deputy Minister. The Hungarian
translation states in its Preamble that

-----------------------------------------------------------------------------------------------------------------
-----
FN1 This Agreement is not to be found, even in the World Treaty Index, 1983. The English
text is to be found in the documents presented by both Parties but they are not identical
(Memorial of Slovakia, Vol. 2. p. 25; Memorial of Hungary. Vol. 3, p. 219).
-----------------------------------------------------------------------------------------------------------------
----

"[the parties] have decided on the basis of a mutual understanding with regard to the joint
implementation of the Hungary-Czechoslovakia Gabcikovo-Nagymaros Barrage System ... to
conclude an Agreement for the purpose of drafting a Joint Contractual Plan for the barrage
system".

As stated above, the 1976 Agreement was concluded in order to facilitate the future planning
of the Project and the 1977 Treaty provided some guidelines for the detailed provisions to be
included in the JCP, which was to be developed jointly by the representatives of both States as
well as by the enterprises involved in the Project. The time-schedule for the implementation
of the construction plan was subsequently set out in the Agreement on Mutual Assistance in
the Course of Building the Gab-[p156]cikovo-Nagymaros Dam of 16 September 1977
(hereinafter referred to as the 1977 AgreementFN2), the same date on which the 1977 Treaty
was signedFN3. It was not made clear whether those two Agreements of 1976 and 1977
themselves constituted the JCP or whether the JCP would be further elaborated on the basis of
these Agreements.

-----------------------------------------------------------------------------------------------------------------
-----
FN2 This Agreement is not to be found, even in the World Treaty Index, 1983. The English
text is to be found in the documents presented by both Parties but they are not identical
(Memorial of Slovakia, Vol. 2, p. 71: Memorial of Hungary, Vol. 3. p. 293).
FN3 The time-limit for the construction plan was revised in the Protocol concerning the
Amendment of the [1977] Treaty signed on 10 October 1983; see also the Protocol
concerning the Amendment of the 1977 Agreement signed on 10 October 1983 and the
Protocol concerning the Amendment of the 1977 Agreement signed on 6 February 1989.
-----------------------------------------------------------------------------------------------------------------
----

In fact, the text of the JCP seems to have existed as a separate instrument but neither Party has
submitted it to the Court in its concrete and complete form. A "summary description" of the
JCP, dated 1977, was presented by Hungary (Memorial of Hungary, Vol. 3, p. 298) while
Slovakia presented a "summary report" as a part of the "JCP Summary Documentation"
(Memorial of Slovakia, Vol. 2, p. 33). Neither of those documents gave a complete text but
they were merely compilations of excerpts. Neither document gave a precise indication of the
date of drafting. What is more, one cannot be certain that those two documents as presented
by the two Parties are in fact identical. The Judgment apparently relies on the document
presented by Hungary and received in the Registry on 28 April 1997 in reply to a question
posed by a Judge on 15 April 1997 during the course of the oral arguments. This document,
the Joint Contractual Plan's Preliminary Operating Rules and Maintenance Mode, contains
only extremely fragmentary provisions. I submit that the Court did not, at any stage, have
sufficient knowledge of the JCP in its complete form.

5. (Amendment of the Joint Contractual Plan.) I would like to repeat that the JCP is a large-
scale plan involving a number of corporations of one or the other party, as well as foreign
enterprises, and that the JCP, as a detailed construction plan for the whole Project, should not
be considered as being on the same level as the 1977 Treaty itself which, however, also laid
down certain guidelines for the detailed planning of the Project. As in the case of any
construction plan of a "partnership" extending over a long period of time, the JCP would in
general have been, and has been in fact, subject to amendments and modifications discussed
between the parties at working level and those negotiations would have been undertaken in a
relatively flexible manner where necessary, in the course of the construction, without resort to
the procedures relating to amendment of the 1977 Treaty. In other words, the detailed
provisions of the construction plan of the JCP to implement the Project concerning the
Gabcikovo-Nagymaros System of Locks as defined in the 1977 Treaty should be considered
as separate from the 1977 Treaty itself. [p157]

6. (The lack of provision in the JCP for dispute settlement.) One may well ask how the parties
should have settled any differences of views which might have occurred between the two
States with regard to the design and planning of the construction or the amendment of that
design. The designing or the amendment of the design should have been effected with
complete agreement between the two parties but the 1976 Agreement, which was the first
document providing for the future design of the JCP, scarcely contemplated the possibility of
the two sides being unable to reach an agreement in this respect. The 1976 Agreement states
that, if the investment and planning organs cannot reach a mutual understanding on the issues
which are disputed within the co-operation team, the investors shall report to the Joint
Committee for a solution. There was no provision for a situation in which the Joint
Committee might prove unable to settle such differences between the parties. It was assumed
that there was no authority above the Joint Committee which would be competent to
determine the various merits of the plan or of proposed amendments to it.

In view of the fact that this Project was to be developed by COMECON under Soviet
leadership, it may have been tacitly considered that no dispute would ever get to that stage. In
the event that no settlement could be reached by the Joint Committee, one or the other party
would inevitably have had to proceed to a unilateral amendment. However, such an
amendment could not have been approved unconditionally but would have had to have been
followed by a statement of the legitimate reasons underlying its proposal.

7. (The 1977 Treaty and the Joint Contractual Plan.) It is therefore my conclusion that, on the
one hand, the 1977 Treaty between Czechoslovakia and Hungary not only provided for a
generalized regime of rights and duties accepted by each of them in their mutual relations
with regard to the management of the river Danube (1977 Treaty, Chaps. V-XI), but also
bound the parties to proceed jointly with the construction of the Gabcikovo-Nagymaros
System of Locks (the construction of (i) the Dunakiliti dam which would permit the operation
of the bypass canal, (ii) the Gabcikovo dam with its power plant and (iii) the Nagymaros dam
with its power plant). The construction of the Gabcikovo-Nagymaros System of Locks might
have constituted a type of "partnership" which would have been implemented through the JCP
(1977 Treaty, Chaps. I-IV).
On the other hand, the JCP was designed to incorporate detailed items of technical planning
as well as provisions for their amendment or revision and did not necessarily have the same
legal effect as the 1977 Treaty, an international treaty.

Those two instruments, that is, the 1977 Treaty and the JCP (which was designed and
modified after 1977), should be considered as separate instruments of differing natures from a
legal point of view. [p158]

II. The Suspension and Subsequent Abandonment of the Works by Hungary in 1989

(Special Agreement, Art. 2, para. 1 (a); Art. 2, para. 2)

1. Special Agreement, Article 2, Paragraph I (a)

8. Under the terms of the Special Agreement, the Court is requested to answer the question

"whether [Hungary] was entitled to suspend and subsequently abandon, in 1989, the works on
the Nagymaros Project and on the part of the Gabcikovo Project for which the Treaty
attributed responsibility to [Hungary]" (Art. 2, para. 1 (aJ).

9. (Actual situation in the late 1980s.) This question put in the Special Agreement should, in
my view, have been more precisely worded to reflect the actual situation in 1989. The work
on the Gabcikovo Project had by that time already been completed; the work at Nagymaros
was still at a preliminary stage, that is, the work on that particular barrage system had, to all
intents and purposes, not even started.

Hungary's actions in 1989 may be summed up as follows: firstly, on 13 May 1989, Hungary
decided to suspend work at Nagymaros pending the completion of various environmental
studies. Secondly, Hungary decided, on the one hand, on 27 October 1989, to abandon the
Nagymaros Project and, on the other, to maintain the status quo at Dunakiliti, thus rendering
impossible the diversion of waters to the bypass canal at that location. Hungary had, however,
made it clear at a meeting of the plenipotentiaries in June 1989 that it would continue the
work related to the Gabcikovo sector itself, so the matter of the construction of the Gabcikovo
Barrage System itself was not an issue for Hungary in 1989. The chronology of Hungary's
actions is traced in detail in the Judgment.

10. ( Violation of the 1977 Treaty.) Whatever the situation was in 1989 regarding the works to
be carried out by Hungary, and in the light of the fact that the failure to complete the
Dunakiliti dam and the auxiliary structures (the sole purpose of which was to divert water into
the bypass canal) would have made it impossible to operate the whole Gabcikovo-Nagymaros
System of Locks as "a single and indivisible operational system of works" (1977 Treaty, Art.
1, para. 1), Hungary should have been seen to have incurred international responsibility for its
failure to carry out the relevant works, thus being in breach of the 1977 Treaty. It is to be
noted that, at that stage, Hungary did not raise the matter of the termination of the 1977 Treaty
but simply suspended or abandoned the works for which it was responsible.

In the light of the actions taken by Hungary with regard to the Gab-cikovo-Nagymaros
System of Locks, there can be no doubt that in 1989 Hungary violated the 1977 Treaty. The
question remains, however, whether Hungary was justified in violating its treaty obligations. I
fully share the view of the Court when it concludes that [p159]

"Hungary was not entitled to suspend and subsequently abandon, in 1989, the works on the
Nagymaros Project and on the part of the Gabd'kovo Project for which the [1977] Treaty . . .
attributed responsibility to it" (Judgment, operative paragraph 155, point 1 A)

and that Hungary's wrongful act could not have been justified in any way.

Let me examine the situation in more detail. Hungary relies, in connection with the Dunakiliti
dam and the diversion of waters into the bypass canal at Dunakiliti, upon the deterioration of
the environment in the Szigetkoz region owing to the reduced quantity of available water in
the old Danube river bed. In my view, however, the decrease in the amount of water flowing
into the old bed of the Danube as a result of the operation of the bypass canal would have
been an inevitable outcome of the whole Project as provided for in the 1977 Treaty.

11. (Hungary's ill-founded claim of ecological necessity.) Certain effects upon the
environment of the Szigetkoz region were clearly anticipated by and known to Hungary at the
initial stage of the planning of the whole Project. Furthermore, there was no reason for
Hungary to believe that an environmental assessment made in the 1980s would give quite
different results from those obtained in 1977, and require the total abandonment of the whole
Project.

I have no doubt that the Gabcikovo-Nagymaros System of Locks was, in the 1970s, prepared
and designed with full consideration of its potential impact on the environment of the region,
as clearly indicated by the fact that the 1977 Treaty itself incorporated this concept as its
Article 19 (entitled Protection of Nature), and I cannot believe that this assessment made in
the 1970s would have been significantly different from an ecological assessment 10 years
later, in other words, in the late 1980s. It is a fact that the ecological assessment made in the
1980s did not convince scientists in Czechoslovakia.

I particularly endorse the view taken by the Court when rejecting the argument of Hungary,
that ecological necessity cannot be deemed to justify its failure to complete the construction
of the Nagymaros dam, and that Hungary cannot show adequate grounds for that failure by
claiming that the Nagymaros dam would have adversely affected the downstream water which
is drawn to the bank-filtered wells constructed on Szentendre Island and used as drinking
water for Budapest (Judgment, para. 40).

12. (Environment of the river Danube.) The 1977 Treaty itself spoke of the importance of the
protection of water quality, maintenance of the bed of the Danube and the protection of nature
(Arts. 15, 16, 19), and the whole structure of the Gabcikovo-Nagymaros System of Locks was
certainly founded on an awareness of the importance of environmental protection. It cannot be
said that the drafters of either the Treaty itself or of [p160] the JCP failed to take due account
of the environment. There were, in addition, no particular circumstances in 1989 that required
any of the research or studies which Hungary claimed to be necessary, and which would have
required several years to be implemented. If no campaign had been launched by
environmentalist groups, then it is my firm conviction that the Project would have gone ahead
as planned.

What is more, Hungary had, at least in the 1980s, no intention of withdrawing from the work
on the Gabcikovo power plant. One is at a loss to understand how Hungary could have
thought that the operation of the bypass canal and of the Gabcikovo power plant, to which
Hungary had not objected at the time, would have been possible without the completion of the
works at Dunakiliti dam.

13. (Ecological necessity and State responsibility.) I would like to make one more point
relating to the matter of environmental protection under the 1977 Treaty. The performance of
the obligations under that Treaty was certainly the joint responsibility of both Hungary and
Czecho-slovakia. If the principles which were taken as the basis of the 1977 Treaty or of the
JCP had been contrary to the general rules of international law — environmental law in
particular — the two States, which had reached agreement on their joint investment in the
whole Project, would have been held jointly responsible for that state of affairs and jointly
responsible to the international community. This fact does not imply that the one party
(Czechoslovakia, and later Slovakia) bears responsibility towards the other (Hungary).

What is more, if a somewhat more rigorous consideration of environmental protection had

been needed, this could certainly have been given by means of remedies of a technical nature
to those parts of the JCP — not the 1977 Treaty itself— that concern the concrete planning or
operation of the whole System of Locks. In this respect, I do not see how any of the grounds
advanced by Hungary for its failure to perform its Treaty obligations (and hence for its
violation of the Treaty by abandoning the construction of the Dunakiliti dam) could have been
upheld as relating to a state of "ecological necessity".

14. (General comments on the preservation of the environment.) If I may give my views on
the environment, I am fully aware that concern for the preservation of the environment has
rapidly entered the realm of international law and that a number of treaties and conventions
have been concluded on either a multilateral or bilateral basis, particularly since the
Declaration on the Human Environment was adopted in 1972 at Stockholm and reinforced by
the Rio de Janeiro Declaration in 1992, drafted 20 years after the Stockholm Declaration.

It is a great problem for the whole of mankind to strike a satisfactory balance between more or
less contradictory issues of economic develop-[p161]ment on the one hand and preservation
of the environment on the other, with a view to maintaining sustainable development. Any
construction work relating to economic development would be bound to affect the existing
environment to some extent but modern technology would, I am sure, be able to provide some
acceptable ways of balancing the two conflicting interests.

2. Special Agreement, Article 2, Paragraph 2

15. The Court is asked, under Article 2, paragraph 2, of the Special Agreement, 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".

16. (Responsibility of Hungary.) In principle, Hungary must compensate Slovakia for "the
damage sustained by Czechoslovakia and by Slovakia on account of the suspension and
abandonment by Hungary of works for which it was responsible". I was, however, in favour
of the first part of operative paragraph 155, point 2D, of the Judgment. As 1 stated at the
outset, I had to vote against the whole of paragraph 155, point 2 D, as that first part of the
paragraph was not put to the vote as a separate issue.

17. (Difference between the Gabcikovo Project and the Nagymaros Project.) When one is
considering the legal consequences of the responsibility incurred by Hungary on account of its
violation of its obligations to Czechoslovakia under the 1977 Treaty and the JCP, it seems to
me that there is a need to draw a further distinction between (i) Hungary's suspension of the
work on the Dunakiliti dam for the diversion of water into the bypass canal, which rendered
impossible the operation of the Gabcikovo power plant, and (ii) its complete abandonment of
the work on the Nagymaros System of Locks, each of which can be seen as having a
completely different character.

18. (The Dunakiliti dam and the Gabcikovo plant.) The construction of the Dunakiliti dam
and of the bypass canal, which could have been filled only by the diversion of the Danube
waters at that point, form the cornerstone of the whole Project. Without the Dunakiliti dam the
whole Project could not have existed in its original form. The abandonment of work on the
Dunakiliti dam meant that the bypass canal would be unusable and the operation of the
Gabcikovo power plant impossible. Hungary must assume full responsibility for its
suspension of the works at Dunakiliti in violation of the 1977 Treaty.

The reparation to be paid by Hungary to Slovakia for its failure in this respect, as prescribed
in the 1977 Treaty, will be considered in the fol-[p162]lowing part of this opinion, together
with the matter of the construction of the Cunovo dam by Czechoslovakia, which took over
the function of the Dunakiliti dam for the diversion of water into the bypass canal (see para.
34 below).

19. (The Nagymaros dam — I.) With regard to the Nagymaros dam, Hungary cannot escape
from its responsibility for having abandoned an integral part of the whole Project. However,
this matter is very different from the situation concerning the Gabcikovo Project. In fact, the
site where the Nagymaros power plant was to have been built is located completely on
Hungarian territory. Although the plant would also have supplied electric power to
Czechoslovakia just as the Gabcikovo power plant would likewise have provided a part of its
electric power to Hungary, the amount of power to be produced by the Gabcikovo power
plant was far greater than that predicted for the Nagymaros power plant.

In 1989, Hungary seems to have found that the Nagymaros power plant was no longer
necessary to its own interests. If the Nagymaros dam was initially considered to be a part of
the whole Project, it was because an equal share of the power output of the Nagymaros power
plant was to have been guaranteed to Czechoslovakia in exchange for an equal share for
Hungary of the electric power generated by the Gabcikovo power plant. The anticipated
supply of electric power from the Nagymaros plant could have been negotiated taking into
account the agreed supply to Hungary of electric power from the Gabcikovo plant. The
Nagymaros dam would also have been required essentially in order to enable the operation of
the Gabcikovo power plant in peak mode and it might therefore have been seen as not really
essential to the Project as a whole.

20. ( The Nagymaros dam — //.) The matter of the equal shares of the electric power from the
Nagymaros power plant to be guaranteed to Czechoslovakia and the feasibility of the
operation of the Gabcikovo power plant in peak mode could have been settled as modalities
for the execution of the JCP, even in the event of the abandonment of the Nagymaros power
plant, as technical questions could be dealt with in the framework of the JCP without any need
to raise the issue of reparations to be paid by Hungary to Czechoslovakia in connection with
the aban-donment of the Nagymaros dam.

There can be no doubt that the construction of the Nagymaros System of Locks was seen as a
major link in the chain of the whole Project in connection with the construction of the
Gabcikovo System of Locks on Czechoslovak territory. The construction of the Nagymaros
System of Locks was, however, essentially a matter that fell within Hungary's exclusive
competence on its own territory. In the late 1980s, Hungary found it no longer necessary to
produce electricity from the Nagymaros power plant on its own territory, and the
abandonment of the Nagymaros dam did not, in fact, cause any significant damage to
Czechoslovakia and [p163] did not have any adverse affect on interests that Czechoslovakia
would otherwise have secured.

In this connection, I must add that Czechoslovakia would have been permitted under
international law as prescribed in the Vienna Convention on the Law of Treaties to terminate
the 1977 Treaty on the ground of Hungary's failure to perform the obligations of that Treaty.
In fact, however, Czechoslovakia did not do so but chose to implement the 1977 Treaty
without Hungary's co-operation because the completion of the Project, as envisaged in the
1977 Treaty, would be greatly to its benefit.

Thus, although Hungary has to bear the responsibility for its abandonment of the Nagymaros
dam as a part of the joint project of the Gabcikovo-Nagymaros System of Locks, the
reparations that Hungary should pay to the present-day Slovakia as a result are minimal (see
para. 34 below).

III. The Implementation of Variant C (Damming of the Waters at Cunovo) by Czechoslovakia

(Special Agreement, Art. 2, para. 1 (b); Art. 2, para. 2)

1. Special Agreement, Article 2, Paragraph I (b)

21. The Court is requested under the terms of the Special Agreement to decide

"whether [Czechoslovakia] was entitled to proceed, in November 1991, to the 'provisional

solution' and to put into operation from October 1992 this system" (Art. 2, para. 1 (bj).

22. (Provisional solution ~ Variant C.J As Hungary had suspended work on part of the
Gabcikovo Project, more particularly the work at Dunakiliti, thus preventing the diversion of
the water into the bypass canal, the finalization of the whole Project, which was already
nearly 70 per cent complete, was rendered impossible.

In order to accomplish the purpose of the 1977 Treaty, Czechoslovakia, one of the parties to
that Treaty, was forced to start work on the diversion of the waters into a bypass canal that lay
within its own territory. That was the commencement of the so-called "provisional solution"
— in other words, Variant C — in November 1991. Czechoslovakia had previously made it
clear to Hungary that, if Hungary were to abandon unilaterally the works at Dunakiliti (which
constituted the basis of the whole Project between the two States), it would have to consider
an alternative plan to accomplish the agreed original Project. Variant C was designed by
Czechoslovakia because it had no other option in order to give life to the whole Project.

Since the agreed basic concept of the whole Project under the 1977 [p164] Treaty had been
jeopardized by Hungary, and since the benefit which Czechoslovakia would have enjoyed as a
result of the power plant at Gabcikovo and all the benefits which would have been available
to both States with regard to international navigation as well as water management (including
flood prevention) of the river Danube had thereby been threatened, it was permissible and not
unlawful for Czechoslovakia to start work on Variant C (the construction of the Cunovo dam).
This would have an effect similar to the original plan contemplated in the 1977 Treaty, that is,
the diversion of water into the bypass canal. Hungary, for its part, had from the outset given
its full agreement to the diversion of the Danube waters into a bypass canal at Dunakiliti on its
own territory.
23. (The lawfulness of the construction and operation of Variant C.) The Court has found that
"Czechoslovakia was entitled to proceed, in November 1991, to the 'provisional solution"'
(Judgment, para. 155, point 1 B) under the 1977 Treaty, which provided for a "partnership"
for the construction of a magnificent Project, but "was not entitled to put into operation, from
October 1992, this 'provisional solution'" (Judgment, para. 155, point 1 C), that is, diverting
the waters at Cunovo. The "provisional solution" was effected in order that Czechoslovakia
might secure its rights and fulfil its obligations under the 1977 Treaty. Its action implied
nothing other than the accomplishment of the original Project. Czechoslovakia claimed that
the construction of the Cunovo dam could have been justified as a countermeasure taken in
response to the wrongful act of Hungary (that is, the abandonment of the works at Dunakiliti)
but I believe that the construction of the Cunovo dam was no more than the implementation of
an alternative means for Czechoslovakia to carry out the Project in the context of the JCP.

I would like to repeat that I cannot agree with the Judgment when it states, as I pointed out in
paragraph 1 above, that "Czechoslovakia was entitled to proceed ... to the 'provisional
solution'" but it "was not entitled to put into operation . . . this 'provisional solution'" (see also
Judgment, para. 79). I wonder if the Court is really of the view that construction work on a
project is permissible if the project ultimately, however, may never be used? The plan to
divert the waters of the Danube river into the bypass canal where the Gabcikovo power plant
was to be constructed was the essence of the whole Project with which Hungary was in full
agreement.

The Judgment states that the diverting of the Danube waters into the bypass canal was not
proportionate to the injury suffered by Czechoslovakia as a result of Hungary's wrongful act
(Judgment, para. 85). However, I hold the firm view that since Hungary did nothing to divert
the waters at Dunakiliti, thus failing to execute its Treaty obligations, Czechoslovakia
inevitably had to proceed with Variant C, that is, the construction of the Cunovo dam and the
diversion of the waters of the Danube at that point, in execution of the JCP, although this was
not explicitly authorized in the 1977 Treaty. This would have been a good reason to [p165]
revise the JCP in order to implement the 1977 Treaty, although the consent of Hungary to that
solution was not obtained. Czechoslovakia had the right to take that action.

24. ( Volume of diverted waters.) In this respect it should be added that the construction and
operation of the Cunovo dam was simply undertaken in order to replace the Dunakiliti dam —
while control of the Danube waters, as covered by Chapters V-XI of the 1977 Treaty, is
another matter entirely as 1 have already stated (see para. 3). The Judgment seems to indicate
that Czechoslovakia acted wrongfully by unilaterally diverting an undue proportion of the
Danube waters into the bypass canal, but the distribution or sharing of those waters does not
fall squarely within the framework of the construction and operation of Variant C. (I wonder
whether control over the sharing of the water would have fallen under the exclusive
competence of Hungary if the Dunakiliti dam had been built.)

The Cunovo dam, which replaced the Dunakiliti dam, is said to have diverted 90 per cent of
the available water into the bypass canal on Czechoslovak territory. This figure for the
division of the water might not reflect the original intention of the parties, each of which
wanted to have an equitable share of the waters, with a reasonable amount of the water going
into the old Danube river bed and a similar reasonable amount going into the bypass canal.
However, the way in which the waters are actually divided does not result simply from the
construction of a dam at either Dunakiliti or at Cunovo but, the diversion of waters at Cunovo
has. in fact, been operated by Czechoslovakia itself under its own responsibility.

The matter of the sharing of the waters between the bypass canal and the old Danube river bed
is but one aspect of the operation of the system and could have been negotiated between the
two States in an effort to carry on applying the JCP. A minimal share of the river waters as
currently discharged into the old Danube river bed might have been contradictory to the
original Project, and for this, Czechoslovakia is fully responsible.

This matter, however, might well have been rectified by some mutually acceptable
arrangement. It may well be possible to control the distribution of the water at Cunovo by the
use of sluice-gates or by a modification to the design of the dyke separating the waters in the
Cunovo reser-voir. The control of the water was not the essence of the Variant C project and
could still be dealt with in a more flexible manner through a revision or redrafting of the
relevant texts of the JCP.

2. Special Agreement, Article 2, Paragraph 2

25. The Court is requested under Article 2. paragraph 2, of the Special Agreement [p166]

"to determine the legal consequences, including the rights and obligations of the Parties,
arising from its Judgment on the questions in paragraph 1 of this Article".

26. (The lawfulness of Variant C.) The construction of Variant C was not unlawful and
Slovakia did not incur any responsibility to Hungary, except that the way in which the
Cunovo dam was controlled by Czechoslovakia seems to have led to an unfair division of the
waters between the old Danube river bed and the bypass canal. Slovakia is entitled to
reparation in the form of monetary compensation from Hungary for some portion of the cost
of the construction work on the Cunovo dam met by Czechoslovakia alone as a result of
Hungary's failure to execute its Treaty obligations concerning the completion of the
Gabcikovo-Nagymaros System of Locks. The cost of the construction of the Cunovo dam and
the related works should in part be borne by Hungary but, in exchange, it should be offered
co-ownership of it. On the other hand, if the operation of the Cunovo dam diverting waters
into the old Danube river bed has caused any tangible damage to Hungary, Slovakia should
bear the responsibility for this mishandling of the division of waters. It must be noted,
however, that, as a result of the planning of this whole Project (especially the bypass canal),
the volume of water flowing into the old river bed could not be as great as before the Project
was put into operation.

IV. Termination of the 1977 Treaty by Hungary

(Special Agreement, Art. 2, para. 1 (c); Art. 2, para. 2)

1. Special Agreement, Article 2, Paragraph 1 (c)

27. The Court is requested under the terms of the Special Agreement to decide "what are the
legal effects of the notification, on 19 May 1992, of the termination of the Treaty by
[Hungary]" (Art. 2, para. 1 (c)).

28. (Hungary's notification of termination of the 1977 Treaty.) This question concerns nothing
other than the interpretation of the law of treaties, as the Judgment properly suggests. The
termination of the 1977 Treaty is essentially different from an amendment of the JCP.
Hungary claims that, as Variant C was in contradiction of the Plan and thus constituted a
wrongful act, the 1977 Treaty could be terminated because of that alleged violation of the
Treaty by Czechoslovakia.

I am in agreement with the Judgment when it states that the termination of the 1977 Treaty by
Hungary does not meet any of the criteria for the termination of a treaty as set out in the
Vienna Convention on the Law of Treaties, which is considered as having the status of
customary international law. I share the view of the Court that the 1977 Treaty has [p167]
remained in force, as the notification of termination made by Hungary in 1992 could not have
any legal effect (Judgment, para. 155, point 1 D).

2. Special Agreement, Article 2, Paragraph 2

29. No legal consequences will result from the Court's Judgment in this respect, since the
notification of termination of the 1977 Treaty by Hungary must be seen as having had no
legal effect.

V. The Final Settlement

(Special Agreement, Article 5)

30. Hungary and Slovakia have agreed under Article 5 of the Special Agreement, that:
"Immediately after the transmission of the Judgment the Parties shall enter into negotiations
on the modalities for its execution."

31. (Negotiations under Article 5 of the Special Agreement.) As I have already said, my views
differ from those set out in the Judgment in that I believe that Czechoslovakia was entitled to
proceed to the provisional solution, namely, not only the construction of the Cunovo dam but
also the operation of that dam at Cunovo in November 1992 for diversion of water into the
bypass canal. As I see it, Czechoslovakia did not violate the 1977 Treaty. It is my opinion that
the "negotiations" between Hungary and Slovakia under Article 5 of the Special Agreement
should be based on this understanding and not on the finding stated in the Judgment in its
operative paragraph 155, points 1 C and 2D.

32. (The amendment of the Joint Contractual Plan.) The implementation by Czechoslovakia
of Variant C — the construction of the Cunovo dam and the damming of the waters for
diversion into the bypass canal — was a means of executing the plan for the Gabcikovo-
Nagymaros Sys-tem of Locks which had originally been agreed by the Parties. The
implementation of Variant C will not remain a "provisional" solution but will, in future, form
a part of the JCP.

The mode of operation at the Gabcikovo power plant should be expressly defined in the
amended JCP so as to avoid the need for operation in peak mode, as this has already been
voluntarily abandoned by the Parties and does not need to be considered here.

The way in which the waters are divided at Cunovo should be negotiated in order to maintain
the original plan, that is, an equitable share of the waters — and this should be spelt out in any
revision or amendment of the JCP. The equitable sharing of the water must both meet
Hungary's concern for the environment in the Szigetkoz region and allow satisfactory
operation of the Gabcikovo power plant by Slovakia, as well as the [p168] maintenance of the
bypass canal for flood prevention and the improvement of navigation facilities. I would
suggest that the JCP should be revised or some new version drafted during the negotiations
under Article 5 of the Special Agreement in order to comply with the modalities which I have
set out above.

33. (Reassessment of the environmental effect). Whilst the whole Project of the Gabcikovo-
Nagymaros System of Locks is now in operation, in its modified form (that is, with the
Cunovo dam instead of the Dunakiliti dam diverting the water to the bypass canal and with
the abandonment of the work on the Nagymaros dam/power plant), the Parties are under an
obligation in their mutual relations, under Articles 15, 16 and 19 of the 1977 Treaty, and,
perhaps in relations with third parties, under an obligation in general law concerning
environmental protection, to preserve the environment in the region of the river Danube.

The Parties should continue the environmental assessment of the whole region and search out
remedies of a technical nature that could prevent the environmental damage which might be
caused by the new Project.

34. (Reparation.) The issues on which the Parties should negotiate in accordance with Article
5 of the Special Agreement are only related to the details of the reparation to be made by
Hungary to Slovakia on account of its having breached the 1977 Treaty and its failure to
execute the Gabcikovo Project and the Nagymaros Project. The legal consequences of these
treaty violations are different in nature, depending on whether they relate to one or other
separate part of the original Project. Hungary incurred responsibility to Czechoslovakia (later,
Slovakia) on account of its suspension of the Gabcikovo Project and for the work carried out
solely by Czechoslovakia to construct the Cunovo dam. In addition, Czechoslovakia is
entitled to claim from Hungary the costs which it incurred during the construction of the
Dunakiliti dam, which subsequently became redundant (see paras. 17 and 18 above).

With regard to the abandonment by Hungary of the Nagymaros dam, Hungary is not, in
principle, required to pay any reparation to Slovakia as its action did not affect any essential
interest of Slovakia (see para. 19 above). There is one point which should not be overlooked,
that is, as the Nagymaros dam and power plant are, as Slovakia admits, no longer a part of the
whole Project, the construction of the bypass canal from Cunovo would be mostly for the
benefit of Slovakia and would provide no benefit to Hungary.

The main benefits of the whole Project now accrue to Slovakia, with the exception of the
flood prevention measures and the improved facilities for international navigation, which are
enjoyed by both States. This should be taken into account when assessing the reparation to be
paid as a whole by Hungary to Slovakia. [p169]

In view of the statements I have made above, it is my firm belief that the modalities of the
reparation to be paid by Hungary to Slovakia should be determined during the course of the
negotiations to be held between the two States.

(Signed) Shigeru ODA. [p170]

DISSENTING OPINION OF JUDGE RANJEVA [Translation]

I find it difficult to subscribe to the conclusion in the Judgment that: "Czechoslovakia was
entitled to proceed, in November 1991, to the 'provisional solution"' and "Czechoslovakia was
not entitled to put into operation, from October 1992, this 'provisional solution'" (para. 155 (1)
(B) and (C)).

From the point of view of logic, these two propositions, even separated, are incompatible. The
construction of public works has as its ultimate purpose their operation. How then is it
possible to reconcile the lawfulness of constructing Variant C with the unlawfulness of
putting it into operation?

Here I cannot subscribe to the analysis by the majority of the Members of the Court on the
true role of the wrong done by Hungary, which is the subject-matter of the first paragraph of
the dispositif, in the chain of intersecting wrongs to which the Court has, rightly, drawn
attention in paragraph 150 of its reasoning.

The unlawfulness of the Hungarian decision to suspend, then abandon, the works may not, in
law, be called in question. Hungary has not fully performed its obligations under the Budapest
Treaty. Furthermore, the chronology of events is unfavourable to the Hungarian cause.
However, the situation in fact and in law is not as simple as it appears on reading the Court's
analysis of it.

By favouring the chronological option in considering the facts, the majority of the Court
seems to give too simple an analysis of the sequence of events. The structure of the questions
set out in Article 2 of the Special Agreement has not helped the Court in its task by
disinclining it to attach any importance to the legal effects of the intersecting wrongs which
form the cornerstone of the dispute that it had to decide.
The dual purpose of the Court's task under the terms of Article 2 of the Special Agreement is
the subject of an excellent analysis in paragraphs 130 and 131 of the present Judgment. My
disagreement, though, relates to the place of the intersecting wrongs which, in the eyes of the
majority of the Members of the Court, is pertinent only to the prescriptive part of the
Judgment, whereas in my opinion it constitutes the cornerstone of the declaratory part.

The question which the Court could, or even should, have asked itself is whether in the
absence of Hungary's first act of unlawfulness in 1989, the subsequent wrongs would have
occurred and in particular whether the decision to abandon the works would have been taken
in November
[p168] 1991. That question, a hypothetical one, should have been raised, in so far as at no
point does the Court consider the point of determining whether the Hungarian wrong caused a
sufficiently proven risk which forced the Czech and Slovak Federal Republic to repair the
damage by the construction and putting into operation of Variant C — an issue which should
have led the Court to say whether one of the wrongs could have been absorbed by another, so
that the subsequent course of wrongful acts had only one true cause.

That hypothetical question should have been asked in limine given the risk of confusion built
into the structure of Article 2, paragraph 1, of the Special Agreement. Because of the
classification of the facts relevant to the case into two blocks of questions (a) and (b),
combined with the Hungarian decision of 1989 being taken as the starting-point for the
sequence of events, a bilaterally comprehensive approach to the issues was encouraged to the
detriment of an overall vision of the relationship between the two Parties, since the bilaterally
comprehensive view produced the illusion of a quasi-mechanistic relationship between their
respective conduct. Such an analysis would have been well founded if the blocks (a) and (b)
of facts described in the question were on the one hand isolated and on the other hand
instantaneous in effect. Points (a) and (b) describe, within an overall set of facts, the different
acts which are imputable, respectively and on different dates, to Hungary and to the Czech
and Slovak Federal Republic. That binary classification does not relate the sequence of
events.

In the present case, an analysis of the facts cannot be undertaken without reference to the
unbroken stream of acts and conduct of an ambiguous nature that developed. The Project
gives the impression of having been, ab initio, the victim of a number of incidents and dogged
by bad luck. Thus, as the Court acknowledges, each of the Parties has committed distinct
wrongs. However, contrary to the observation of the majority of the Court, I consider that
each wrong played the role of catalyst for the other. This is not a case of a single wrong
committed at the same time by the two Parties, nor of two successive wrongs, but of distinct
wrongs which together led to the existence of the situation currently before the Court. Each
Party contributed to creating a wrong which progressively helped to cause the situation which
is the subject-matter of the present dispute in its entirety. It was necessary to put the
interwoven nature of the conduct and the wrongs in that light since, given the dual task of the
Court under Article 2 of the Special Agreement, the reciprocal nature of the wrongs raises the
problem of causality in the present dispute as a whole.
The general scheme of this Judgment is based on the idea that the Hungarian wrong is the
causa prima in law of the dispute. However, contrary to my opinion, the majority of the
Members of the Court sees its scope as limited solely to the obligation of reparation: the
intersecting nature of the wrongs enables the Court to recommend "the zero option" [p172] as
far as reparation of the damage is concerned, as it emerges from operative paragraph 2 D in
the terms the Court has chosenFN1.

-----------------------------------------------------------------------------------------------------------------
-----
FN1 The zero option is linked to a certain interpretation of the rule of Pomponius according to
which "Quod si quis ex culpa sua sentit, non intelligitur damnum sentire" (Digest, "De régula
juris", 50. 17). In other words, a claimant is deprived of his right to reparation if he can be
accused of wrongdoing, whether or not it is the cause of the loss he has suffered. The
proposition of Pomponius was ruled out by canon law as individualization of liability for fault
gradually developed and mechanisms for presuming liability weakened.
-----------------------------------------------------------------------------------------------------------------
----

With all the respect I have for the Court, 1 do not believe that the obligation of reparation is
the only area on which the intersecting nature of the wrongs has had a bearing. The concept of
violation of a norm, by the commission of unlawful acts, is meaningless in absolute terms; it
is only meaningful in relation to the rights of each Party under the 1977 Treaty and to the
discretionary power of subjective characterization by a party itself which is ascribed to it in
law. The idea of violation thus enables each party to infer the consequences from a course of
conduct which it has characterized as unlawful beforehand, in a discretionary manner. These
considerations lead on the one hand to consideration of the consequences of the Hungarian
wrong (para. 155 (1) (A)) for the sequence of events and on the other hand to criticism of
paragraph 155 (1) (B) of the present Judgment.

No peremptory conclusion can be formulated as to the sequence of facts which make up the
conduct of each Party. The concept of original cause may only be established, in the present
case, on two conditions: first, that of its appearance ex nihilo in the chain of events and,
second, that of its effectiveness as far as the actual genesis of the events is concerned. In order
to satisfy these requirements, it would have been necessary for the wrong committed by
Hungary to have borne no relation whatsoever to any conduct on the part of Czechoslovakia.
But, in the present case, given the chaotic nature of the relations between the two Parties in
dispute, it is difficult to seek to introduce a more or less undifferentiated mechanistic analysis
into this discussion. Contrary to the requirements inherent in the law of liability in domestic
law, the case is not about finding at all costs who is liable, nor about making a finding of
unlawfulness per se which is not the cause of the sequence of respective actions of the Parties.
Evidence of unlawfulness is not sufficient to establish a link of direct causality between the
Hungarian conduct and the Czechoslovak reaction.

The historical and technical details show that projects for regulating the Danube in that
portion of the river's course had been envisaged since the end of the Second World War. In
the framework of such programmes of co-operation, each party was pursuing objectives
which were not necessarily the same of those of its partner. Thus the Czech and Slovak
Federal Republic expressed a particular interest in hydroelectricity and [p173] in navigation.
The Nagymaros works were designed to be put into operation when the installations at
Gabcikovo were operating in peak-load time. And it is apparent from the various earlier
projects that, for many a year, the possibility of constructing the works on Czechoslovak
territory alone had not been ruled out. Those details, relating to the context of both the Project
and the present dispute, explain what was at stake, without however constituting a
justification of the Hungarian decision. From the legal point of view, the conclusion of the
Budapest Treaty renders these discussions nugatory. The only certainty stems from the fact
that the Hungarian decision to suspend took shape in an atmosphere of much suspicion and
mistrust and was a well-premeditated act.

In my opinion, the Hungarian decision did not constitute the cause, but the ground or motive
taken into consideration by the Czech and Slovak Federal Republic in order to justify its
subsequent conduct. Can it for all that, in law, be considered as being the source from which
the subsequent wrongs came into being? A reply to that question must take into account the
strategy of raising the stakes in the context of the pressure/ negotiations game. First of all, the
factual chronology is unfavourable to Hungary if one considers the sequence of events in
terms of linear succession. However, with the passage of time, the links of causality with the
initial wrong fade and weaken whereas the conduct of each side escalates more and more.
Thus, in the present case, there was reason to determine the causal nature of the unlawfulness
inherent in the Hungarian conduct described in paragraph 1 A of the dispositif. If we consider
the question which forms the subject-matter of the second paragraph in terms of the relations
between the two Parties, it is the facts and wrongs seen as a whole that should be taken into
consideration; it is therefore difficult, in the absence of a presumption of responsibility, to
consider the unlawfulness of the commissioning of Variant C as the direct consequence of the
Hungarian decision of 1989. It seemed necessary to me however to dispose of this preliminary
question as a matter of logic; that being so, the intersection of wrongs was the crux of the
second question.

The inconsistent nature of the conclusion reached by the Court, in operative paragraphs IB
and 1C (para. 155), shows, if it needs demonstrating, the artificial nature of the distinction
between "proceeding to the provisional solution" and its "putting it into operation". This
distinction might be justified if the theory of approximate application or that of damage
limitation were based on treaty law. The Court rightly rejected the arguments based on these
principles, which may find their place in constructs of domestic law within a system of
presumption of liability.

Once, though, the Court has accepted the intersecting nature of the wrongs committed by the
Parties, the distinction between the construction of Variant C on the one hand and putting it
into operation on the other is purely artificial in the context of the pressure/negotiations
relationship game. [p174]
The divisibility of Czechoslovakia's conduct according to the Judgment is said to be based on
the use in the Special Agreement of the copulative conjunction "and" in order to express the
link between the two stages of process of accomplishment of its decision. However, the link
ensured by the conjunction, from a grammatical point of view, is characterized by the fact that
the elements of the process are of the same nature, and also by the immediacy of their
succession. In those circumstances, contrary to what the majority of the Court presumes, and
the consistent attitude of Czechoslovakia bears this out, there has never been, in its plans, any
question of not putting Variant C into operation once the decision to proceed to it had been
taken. A continuing act seems the most relevant characterization, both as regards the general
sequence of events (see above) and the overt behaviour of Czechoslovakia and then of
Slovakia.

For in order that the distinction made in the Judgment be founded, there must actually exist in
advance an equipollence between "proceeding to the provisional solution" and "putting it into
operation". That is in order to avoid one of the elements being absorbed by the other.
However, the Czechoslovak decision is neither meaningful nor significant unless the
subsequent course of events leads to a single result: the putting into operation of Variant C,
the so-called "provisional solution".

On consideration, and contrary to the analysis in the Judgment, the unlawfulness of

Czechoslovakia's conduct cannot be limited to the mere putting into operation of the
"provisional solution" because of the status of the Danube in international law. I cannot
subscribe to the idea that territorial sovereignty confers on a State the faculty of altering
unilaterally the use of an international watercourse whose legal regime has formed the
subject-matter of an international treaty. In these circumstances, it is not the construction or
the non-construction of works on the territory of one or the other Party per se nor solely the
diversion of the course of the Danube which constitute the only breaches of the obligations
under the 1977 Treaty. The fact of substituting and implementing a national project in place
of a joint international project is a serious contravention of the provisions of the Treaty of
Budapest. Limiting the sanction for unlawfulness to the factual consequences of the breach of
international obligations but not to the breach itself represents "a precedent with disturbing
implications for treaty relations and the integrity of the rule pacta sunt servanda" (see
Judgment, para. 114). These considerations explain the validity of the proposition in Article
25, paragraph 1, of the International Law Commission Draft Articles on State Responsibility,
on unlawfulness of a continuing character:

"The breach of an international obligation by an act of the State having a continuing character
occurs at the moment when that act begins. Nevertheless, the time of commission of the
breach extends over the entire period during which the act continues and remains not in
conformity with the international obligation." [p175]

In the final analysis, how can one justify the unlawfulness of Variant C solely in terms of its
being put into operation, when there is no legal foundation in the 1977 Treaty for this
solution, in the opinion of the Judgment, once the Court has dismissed the arguments of
approximate application and obligation to limit damage, as well as the proportionality
between the wrong committed by Hungary and the commissioning of Variant C?

(Signed) Raymond RANJEVA. [p176]

DISSENTING OPINION OF JUDGE HERCZEGH

[ Translation J

I am most regretfully unable to share the position of the majority of Members of the Court as
expressed in this Judgment, and I find myself obliged to draft a dissenting opinion to set out
the facts and reasons which explain the different conclusions I have reached.

The subject of the dispute between Hungary and Czechoslovakia, and later Hungary and
Slovakia, was the construction of a system of locks on the Danube (hereinafter called "the
G/N Project") intended to enhance "the broad utilization of the natural resources of the
Bratislava-Budapest section of the Danube . . .". According to the Treaty concluded in
Budapest on 16 September 1977,

"the joint utilization of the Hungarian-Czechoslovak section of the Danube will. . .

significantly contribute to bringing about the socialist integration of the States members of the
Council for Mutual Economic Co-operation . . .".

The Project seemed in other respects likely to have a considerable impact on the environment.
The Court, called upon by the Parties to resolve the dispute, was thus confronted with not
only the implementation of the law of treaties, but also the problems raised by protection of
the environment, and with questions concerning the international responsibility of States.

In its Advisory Opinion given to the General Assembly on 8 July 1996 on the Legality of the
Threat or Use of Nuclear Weapons, the Court declared that it recognized

"that the environment is not an abstraction but represents the living space, the quality of life
and the very health of human beings, including generations unborn. The existence of the
general obligation of States to ensure that activities within their jurisdiction and control
respect the environment of other States or of areas beyond national control is now part of the
corpus of international law relating to the environment." (1. C.J.Reports 1996, pp. 241-242,
para. 29.)

This Judgment of the Court cites that passage and stresses the importance of respecting the
environment, but then does not take due account of the application of that principle to the
construction and operation of the G/N Project.

The Court only grants a very modest place to ecological considerations [p177] in the
"declaratory" part of its Judgment. As a judicial organ, the Court was admittedly not
empowered to decide scientific questions touching on biology, hydrology, and so on, or
questions of a technical type which arose out of the G/N Project; but it could — and even
should — have ruled on the legal consequences of certain facts alleged by one Party and
either admitted or not addressed by the other, in order to assess their respective conduct in this
case.

Before determining the facts which could thus be pertinent, I must make a few preliminary
observations on the characteristics of the G/N Project. The Project was an audacious scheme,
in a class of its own and the first to be designed as a system of locks for the exploitation in
peak mode of the hydroelectric resources of the Danube. The locks built on the German and
Austrian sections of the Danube do not operate in peak mode; moreover, the dams on the
Rhine operating in that mode are much more modest works.

That mode of operation involved and involves risks which were not altogether unknown to
those responsible for drawing up the plans for the G/N Project, but its designers reasoned
within the confines of what was known in the 1960s and 1970s — and that way of thinking is
today con-sidered outmoded, and rightly so. They accordingly minimized the risks, whilst at
the same time having an imperfect understanding of the damage they could cause, and
therefore of the possible solutions. To give just one example, the fact that the Joint
Contractual Plan only provided for a discharge of 50 cubic metres per second in the old
channel of the Danube during the months of March to November shows clearly that the most
basic ecological considerations were not accorded the weight they deserved. The original
Project was criticized not only by the Hungarian party, but also by the Czechoslovak leaders.
Paragraph 38 of the Judgment quotes the Czechoslovak President, Mr. Havel, as saying that
the G/N Project was a "totalitarian, gigomaniac monument which is against nature" (Counter-
Memorial of Hungary, Vol. 3, Ann. 88), together with part of a statement made by the
Czechoslovak Minister for the Environment, Mr. Vavrousek, for whom "the G/N Project was
an old, obsolete one", and who went on to say that "there is no doubt that if we could turn the
course of time, we would never approve the original project but that even though there were
"many reasons to change, modify the Treaty ... it [was] not acceptable to cancel the Treaty . . .
and negotiate later on" (Memorial of Slovakia, Vol. IV, Ann. 97, pp. 248-249).

Given the declarations of the Czechoslovak leaders, it is somewhat surprising that the Court
adopted the approach that the ecological risks listed by Hungary in 1989 were already known
when the Treaty was concluded but remained uncertain, and the provisions of Articles 15, 19
and 20 covered the protection of the natural environment, water quality, and [p178] so forth,
whereas it could and should have concerned itself with the problems which the interpretation
and implementation of these provisions might raise in the field. However, the Judgment
merely mentions the aims of the Project and the advantages it was presumed to offer.

Unfortunately, that picture is a far cry from reality. It is difficult to see otherwise why the
Minister, Mr. Vavrousek, would have considered the G/N Project contained in the 1977
Treaty to be "old", of an "obsolete" character, and needing to be "changed" or "modified", and
so on. Moreover, the key question is not whether the Treaty contained certain provisions
protecting the environment, but whether those provisions had been effectively implemented
during the construction of the G/N Project.
Since the negotiations which led to the conclusion of the 1977 Treaty, ecological knowledge
has become considerably broader and deeper whilst international environmental law has also
progressed. In its Advisory Opinion on the Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), the Court found that:
"Moreover, an international instrument has to be interpreted and applied within the
framework of the entire legal system prevailing at the time of the interpretation. In the domain
to which the present proceedings relate, the last fifty years . . . have brought important
developments ... In this domain, as elsewhere, the corpus juris gentium has been considerably
enriched, and this the Court, if it is faithfully to discharge its functions, may not ignore."
(I.C.J. Reports 1971, pp. 31-32, para. 53.)

What held good for the Mandate system of the League of Nations also holds good for the duty
to safeguard the natural environment, the only difference being that instead of a 50-year
period, we have to look at a 20-year period in this case. Under Article 19 of the 1977 Treaty,

"The Contracting Parties shall, through the means specified in the joint contractual plan,
ensure compliance with the obligations for the protection of nature arising in connection with
the construction and operation of the System of Locks."

The original Hungarian wording uses, instead of the word "obligations", the word
"requirements", but that does not in any way affect its essential scope: the protection of nature
was to be ensured in a manner commensurate with the requirements of the day, that is to say,
in 1989, in accordance with the requirements of 1989, and not those that might have prevailed
in 1977. Likewise, and in so far as it is accepted, as it is by the majority of the Members of the
Court, that the Treaty still applies as it stands, the same would hold good for 1997, and it is in
accordance with [p179] present-day requirements that the scope of the Parties' treaty
obligations with regard to protection of the environment should be defined. The Court, in the
"prescriptive" part of its Judgment, states:

"Owing to new scientific insights and to a growing awareness of the risks for mankind — for
present and future generations — of pursuit of such interventions at an unconsidered and
unabated pace, new norms and standards have been developed, set forth in a great number of
instruments during the last two decades. Such new norms have to be taken into consideration,
and such new standards given proper weight, not only when States contemplate new activities
but also when continuing with activities begun in the past." (Para. 140.)

It is regrettable that the Court did not follow this principle even in the reasoning which led to
its reply to the first question put to it in the Special Agreement.

To have perceived the shortcomings of a project — to avoid using the word "error" — and to
recognize that one is the source of those shortcomings are two very different things which
may sometimes be very far apart. The principal argument put forward, in 1991, by the
Czechoslovak party in favour of the G/N Project, was based on the fact that the Project was
almost completed. By the acceleration of the works laid down in the Protocol of 6 February
1989, certain Hungarian leaders wanted to do the same thing — to claim that a point of no
return had been reached — in order to deal with increasing opposition and resistance. Political
changes during that year prevented them from achieving that aim.

The crucial problem posed by the G/N Project was that of peak mode operation, for which the
1977 Treaty makes no provision. Slovakia confirmed repeatedly that there was no agreement
between the contracting parties with regard to the peak mode operation of the system of locks.
It maintained that the operational rules relating to peak mode operation had still not been
established at the start of 1989, and that without the agreement and co-operation of the parties
no plan to operate in peak mode could be implemented. In its Reply (Vol. II, pp. 8-9),
Slovakia states "the Gabcikovo plant would have operated at a level of maximum peak mode
operation that was never agreed between the Treaty parties" and "Czechoslovakia offered its
pledge to limit or exclude [that mode of operation] in October 1989 if justified by subsequent
studies" (emphasis added). A few lines further on, it reaffirms that:

"no agreed method or level of peak mode operation had been reached prior to 1989 . . . The
focus on peak mode operation here is therefore misplaced, for it assumes a mode of operation
that was neither agreed nor certain to be adopted in any form." (Ibid., p. 9.) [p180]

It is the Joint Contractual Plan which describes peak mode operation, thus demonstrating that
the 1977 Treaty and the Joint Contractual Plan do not have the same legal character since
Slovakia would not otherwise have denied the existence of an agreement as to mode of
operation.

It is true that the Preamble to the Special Agreement mentions the Treaty on the Construction
and Operation of the Gabcikovo-Nagymaros Barrage System and related instruments ("the
Treaty") but, despite the linking of the "related instruments" to the term treaty, it is absolutely
incorrect to conclude that all those instruments — including the Joint Contractual Plan — are
of the same nature and carry the same legal weight as the Treaty itself.

Moreover, the Special Agreement does not define the concept of "related instruments" at all
and a list of the instruments was not appended to the Special Agreement or to the other
documents lodged at the Court by the Parties, for the simple reason that they disagreed as to
the material content of that expression. The references made by the Parties to the "related
instruments", both in the written proceedings and in the hearings, were vague, ambiguous and
often contradictory. Since the file submitted to the Court was insufficient to clarify what was
meant by that expression, the Court should have avoided using it in its reasoning and
especially in the operative part. Unfortunately, it did not follow this course, and this was
detrimental to the necessary precision of its Judgment.

To return to the problem posed by the mode of operation of the system of locks, the above
statements by the Slovak party show, moreover, that Czechoslovakia itself had certain doubts
and certain reservations about the peak mode of operation. However, Slovakia emphasized
during the hearings that the Parties had to resolve the problem of defining "the modalities of
(and limitations to) the production of electricity in peak mode" (CR97/15, p. 50, Pellet), yet
without specifying the treaty basis of such a claim.

In any event there was an obvious contradiction between a project designed for peak mode
operation and the absence of an agreement between the parties as to this mode of operation.
The Court did not attempt to resolve that contradiction, but was unable to remain entirely
silent as to the doubts it had regarding that mode of operation. In paragraph 134 of the
Judgment, the Court concluded that there had been an "effective discarding by both Parties of
peak power operation" (emphasis added). In paragraph 138, it states that Czechoslovakia "was
willing to consider a limitation or even exclusion of operation" in peak power mode.

Between 1977 and 1989 Hungarian experts became aware of the ecological dangers
potentially caused not only by the peak mode operation of the system of locks, but also by the
construction of certain works of the system which had been designed with a view to such a
mode of operation : more particularly the Nagymaros dam and the storage reservoir at [p181]
Dunakiliti as initially designed, that is, with an enormous surface area of 60 square
kilometres, neither construction being indispensable or even of use if the Gabcikovo power
plant were to be operated in run-of-the-river mode. Slovakia recognizes that the Nagymaros
dam was intended, "first, to compensate fluctuating water levels caused by peak operation of
Gabcikovo" (Memorial of Slovakia, para. 2.51), that "One of the functions of the Nagymaros
section was to utilize the Danube waters so as to permit peak power production at Gabcikovo"
(ibid., para. 7.13) or, to reiterate the words used by the agent of Slovakia during the hearings,
that "to produce peak power electricity at Gabcikovo required the existence of the Nagymaros
weir" (CR 97/7, p. 15, Tomka).

It is therefore difficult to understand why Czechoslovakia insisted with some vigour that
Hungary had to continue with the construction of the Nagymaros dam — when its primary
purpose was to allow peak mode operation of the Gabcikovo power station — if the mode of
operation, as Slovakia expressly concedes, was never the subject of an agreement between the
Parties. There was therefore no legal obstacle to prevent the G/N Project from being modified
for adaptation to a less dangerous mode of operation. Slovakia, for its part, has repeatedly
stated that

"The 1977 Treaty and the international agreements linked to it were highly flexible . . . there
were continuing studies of problems emerging during construction, which led to
modifications related, inter alia, to the environment and water quality." (CR97/7, p. 14,
Tomka.)

In that case, the danger which the construction of the Nagymaros dam posed for Budapest's
drinking water supply — a point I shall return to later — was a sufficient ground for
amending the 1977 Treaty and the international agreements linked to it, as Hungary suggested
in its Note Verbale dated 3 November 1989 (Memorial of Hungary, Vol. 4, Ann. 29).

Before replying to the question "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
Gabcikovo Project" for which it was responsible, it should be noted that that question covers
several actions taken by the Hungarian Government which must be assessed individually.
Those actions are the following:

— in May 1989, the suspension of work on the Nagymaros dam;

— in July 1989, the suspension of work at Dunakiliti;
— in October 1989, the abandonment of work at Nagymaros.

At the same time, it should be noted that, towards the end of 1991, Hungary carried on with
and even completed the work relating to the [p182] downstream section of the bypass canal,
on Czechoslovakian territory, between Gabcikovo and Szap, for which it was responsible
under Ar-ticle 5, paragraph 5(b) (4), of the 1977 Treaty, and that it did so because it did not
consider that part of the G/N Project to threaten the environment. That is symptomatic of its
attitude towards the 1977 Treaty. The allegation that Hungary repudiated or rejected the 1977
Treaty as such in 1989 or in 1990 is therefore groundless.

In order to justify its conduct, Hungary put forward various grounds and these included, inter
alia, a state of necessity, the main and decisive reason. A state of necessity does not have the
effect of extinguishing or suspending a treaty, but it is a circumstance exonerating the State
from the responsibility it incurs in committing an act not in conformity with its international
obligations.

Article 33, paragraph 1, of the Draft of the International Law Commission on the International
Responsibility of States, considered as expressing the rules of customary international law and
cited by the Court in its Judgment, stipulates the following:

"1. A state of necessity may not be invoked by a State as a ground for precluding the
wrongfulness of an act of that State not in conformity with an international obligation of the
State unless:
(a) the act was the only means of safeguarding an essential interest of the State against a grave
and imminent peril; and
(b) the act did not seriously impair an essential interest of the State towards which the
obligation existed."

The state of necessity is "the situation of a State" — according to the International Law
Commission Report —

"whose sole means of safeguarding an essential interest threatened by a grave and imminent
peril is to adopt conduct not in conformity with what is required of it by an international
obligation to another State" (Yearbook of the International Law Commission, 1980, Vol. II,
Part 2, p. 34, para. 1).

The "deliberate nature of the conduct, the intentional aspect of its failure to conform with the
international obligation" — according to the Report —
"are not only undeniable but in some sense logically inherent in the justification alleged;
invoking a state of necessity implies perfect awareness of having deliberately chosen to act in
a manner not in conformity with an international obligation" (ibid., p. 34, para. 3).

State of necessity is a very narrow concept in general international law. In the course of the
International Law Commission's work on the codification of State responsibility, the great
majority of its members were of the view "that any possibility of the notion of state of
necessity being [p183] applied where it is really dangerous must certainly be prevented, but
that this should not be so in cases where it is and will continue to be [a] useful . . ." "The
imperative need for compliance with the law must not be allowed to result in situations so
aptly characterized by the maxim summum jus summa injuria" (Yearbook of the International
Law Commission, 1980, Vol. II, Part 2, p. 49, para. 31). Thus the International Law
Commission, expressing an almost general approach and conviction, stressed that the situation
had to involve an "essential" interest of the State in question. That "essential" character
naturally depends upon the circumstances in which a State finds itself, which cannot be
denned beforehand, in the abstract. The peril threatening the essential interest must be
extremely grave and imminent, and it must have been avertable only by means conflicting
with an international obligation. In a state of necessity, there is a

"grave danger to the existence of the State itself, to its political or economic survival, the
maintenance of conditions in which its essential services can function, the keeping of its
internal peace, the survival of part of its population, the ecological preservation of all or some
of its territory . . ." (ibid., p. 35, para. 3).

Invoking a state of necessity is not a way to terminate treaty obligations lawfully, that is, to
terminate an international treaty. However, the party in question will be released from the
consequences of the violation of international law, since it acted in a state of necessity. The
state of necessity is a circumstance which exonerates from responsibility: in other words, it
exonerates the author of the unlawful act from that international responsibility. Hence the
problem has not been resolved — and cannot be resolved — by the law of treaties, but
pertains to the provisions of the international law of State responsibility.

The question is therefore whether the criteria for a state of necessity are fulfilled in relation to
the construction of the Nagymaros dam? It should be noted in this context that more than 500
bank-filtered wells which satisfy about two-thirds of Budapest's drinking water requirements
are situated on the island of Szentendre, downstream of Nagymaros. The water from those
wells is fit for consumption without any purification procedure being necessary. The
provision oj drinking water for the Hungarian capital — which has two million inhabitants
(that is, one-fifth of the country's population) —, qualitatively and quantitatively, certainly
constitutes an essential interest for Hungary. Hungary had to protect the branches of the
Danube, on either side of the island, against any erosion endangering the production of
drinking water from those wells.

The dredging of the bed of the Danube in the two branches around the island of Szentendre —
as laid down by Article 1, paragraph 3 (c), of the 1977 Treaty — had already caused serious
damage. After the water services of the Hungarian capital had raised the alarm, those works
[p184] were not only suspended, but abandoned in 1980, resulting in a natural improvement
of the state of the river bed. Since the construction of the Nagymaros dam would have had the
same harmful effects downstream as those of the dredging, and in particular the erosion of the
river bed, that construction constituted a grave peril.

The expression "grave peril" refers to the existence of a strong likelihood that detrimental
effects and very extensive damage will occur. It is true that the damage in connection with
Nagymaros would not occur overnight, but after a lapse of time. The Judgment cites the
International Law Commission's commentary to the effect that the "extremely grave and
imminent" peril must "have been a threat to the interest at the actual time". That does not rule
out, the Court adds,
"that a 'peril' appearing in the long term might be held to be 'imminent' as soon as it is
established, at the relevant point in time, that the realization of that peril, however far off it
might be, is not thereby any less certain and inevitable" (para. 54).

Unfortunately, the Court has not drawn the obvious conclusion from that definition as far as
the construction of the Nagymaros dam is concerned. There could be no doubt that the erosion
of the bed of the Danube downstream of Nagymaros would be the certain and inevitable
consequence of the dam. These were not "uncertainties", as could be claimed in relation to
other ecological consequences of the G/N Project, but certainties as to the foreseeable effects
of the construction of the dam. If the Court did not want, in this respect, to rely solely on
Hungary's arguments, it could have used the information provided by Slovakia. According to
Slovakia,

"the construction of water projects and hydropower plants upstream in Germany and Austria
had the effect of dramatically reducing the quantities of sediments transported downstream to
the Slovak-Hungarian section . . . dredging coupled with erosion began to exceed the annual
deposition of sediment from upstream, the Danube river bed started to deteriorate in the
region between Devin Gate and Sap (Palkovicovo) and the erosion processes caused by
'hungry water' commenced." (Memorial of Slovakia, para. 1.42.)

The Memorial of Slovakia cites the Report of 2 November 1993 of the European
Communities Working Group of Experts that:

"The main channel has been significantly lowered due to erosion caused by a combination of
several man-made factors:

— dam construction in Austria in the last decades resulting in a sediment (in particular bed
load) deficit . . ." (Ibid., para. 1.57.)

The Nagymaros dam could only have had the same effects, downstream, on the bed of the
Danube, as the dams built in Austria had had [p185] on the sector of the Slovak capital: the
erosion of the river bed. As a result of such erosion, the production of drinking water from the
bank-filtered wells on the banks of the island of Szentendre could only diminish, and the
quality deteriorate. Certus an incertus quando. It was impossible to predict exactly that that
diminution would amount to such-and-such a percentage of the former production of those
wells, and whether it would occur over five or ten years, but it was certain that the quantity of
water would diminish and its quality deteriorate in the relatively near future.

The imminence of the peril in question depended on the construction of the Nagymaros dam:
without the dam, there would be no grave peril, either imminent or long-term; once the dam
had been constructed, it would no longer have been appropriate to speak of a peril, but rather
of grave and permanent damage occurring for so long as the dam existed — a dam built by
the very State whose population and territory would have been its victims. To claim that the
suspension of works on the Nagymaros dam was not justified by a state of necessity, since the
peril was not imminent, means in reality that Hungary should have completed the dam and
waited for the bank-filtered wells on the island of Szentendre to dry out because of the erosion
of the river bed and for the supply of drinking water to the Hungarian capital to be called
critically into question. The Court, in deciding the case, ought to have taken account of the
damage that would have occurred if the Party in question had not taken the necessary
preventive measures. States are under an obligation of prevention and not merely of
reparation.

Slovakia did not deny that the effectiveness of the wells would be reduced, but it claimed that
they would not be entirely lost and suggested measures designed to deal with such a situation,
but without taking account of the cost of such measures (see Slovakia's reply, dated 7 May
1997, to the question asked by the Vice-President (CR 97/15, p. 64). Indeed, the surface
waters could have been purified and rendered fit for human consumption; however, that
would have been enormously expensive in view of the requirements of a city of two million
inhabitants. The other solution proposed, namely the discharging of large quantities of gravel
into the river bed, did not seem very realistic: both branches of the Danube around the island
of Szentendre, taken together, are 1,000 metres wide and 70 kilometres long. How much
gravel would therefore have been necessary to counteract the erosion of the river bed caused
by the Nagymaros dam? The third solution raised, the construction of a second dam
downstream of Budapest, would have cost no less and, in the end, a third dam would have
been needed, at Paks or at Mohacs, not to mention the potential consequences of such a series
of dams on the Yugoslav sector of the Danube. In theory, all three solutions were possible —
the argument of impossibility does not stand up — but the implementation of these measures
would have radically transformed the scope of Hungary's remaining obligations under the
Treaty. Such a solution denotes a fundamental change of circumstances which may be relied
[p186] upon as a ground for terminating the Treaty, as prescribed in Article 62, paragraph 1
(b), of the 1969 Vienna Convention on the Law of Treaties. The Court expressed itself as
follows in its Judgment of 2 February 1973 in the case concerning Fisheries Jurisdiction
(United Kingdom v. Iceland) :

"International law admits that a fundamental change in the circumstances which determined
the parties to accept a treaty, if it has resulted in a radical transformation of the extent of the
obligations imposed by it, may, under certain conditions, afford the party affected a ground
for invoking the termination or suspension of the treaty." (I.C.J. Reports 1973, p. 18, para.
36.)

Instead of taking into consideration the consequence of the changes thus operated on the
scope of Hungary's remaining obligations under the Treaty, the Court, in this Judgment,
merely states that "the purification of the river water, like the other measures envisaged,
clearly would have been a more costly technique" (para. 55). The costs of discharging gravel
into the river and those of constructing a second dam were not given serious consideration,
any more than was the radical transformation of the scope of the obligations assumed.

As far as a fundamental change in circumstances is concerned, it should be noted that he who

can do the most can do the least. Hungary did not rely on the Treaty having lapsed or on the
suspension of the Treaty as such, but it did suspend performance of one of its obligations —
the construction of the Nagymaros dam — on the basis of a state of necessity, a ground for
setting aside unlawfulness resulting from the failure to implement a treaty provision. In this
case, it was a matter of safeguarding an essential interest against a peril which was grave and
imminent — that is, certain and inevitable. The taking of other measures to counteract that
grave peril would have radically transformed the scope of the obligations to be performed by
Hungary under the Treaty.

Since the Court has not adopted a position on the question whether the suspension and
abandonment of the construction at Nagymaros impaired an essential interest of the other
Party, I shall merely observe that the Gabcikovo power plant operates normally today, as a
run-of-the-river power station, without a dam at Nagymaros, where the Danube flows
naturally in its bed. Boats use the bypass canal, so that navigation has not been affected, and
there is no danger of flooding which could have been caused by the present state of the works.
Accordingly, the sus-pension and subsequent abandonment of the construction works has not
impaired an essential interest of the other contracting party.

However, the Court finds as follows:

"even if it had been established that there was, in 1989, a state of necessity linked to the
performance of the 1977 Treaty, Hungary would not have been permitted to rely upon that
state of necessity in [p187] order to justify its failure to comply with its treaty obligations, as
it had helped, by act or omission to bring it about" (para. 57).

That is a surprising conclusion, implying that Hungary should have finished the construction
of the Nagymaros dam, which in reality would have helped to aggravate the state of necessity
already existing as a result of the start of the works, by causing irreparable damage to the
drinking water supply to its capital city. In that case, it would have had only itself to blame,
since it alone would have been the cause of the catastrophic situation that would have ensued.

The suspension of the works at Dunakiliti is to be seen in a somewhat different context. The
suspension of those works was intended to safeguard an essential interest of Hungary, that is,
principally the protection of the aquifer situated below the Szigetkoz and the surrounding
area. The risk of damage to the aquifer arose from the size of the storage reservoir at
Dunakiliti (oversized were Gabcikovo to be operated as a run-of-the-river power station) and
from the polluting effect of its stagnant waters. The national report of the Czech and Slovak
Republic to the Rio Conference showed that Gabcikovo constituted a threat to the
environment:

"Example of disturbance of the unique water and rural ecological systems due to large water
works are the reservoirs in Nove Mlyny in Czech Republic and the Gabcikovo water works on
the Danube river in the Slovak Republic. In the first example the mead forest with its unique
flora and fauna were seriously damaged, in the second example, the huge and unique volume
of underground water is threatened and the systems of mead forests and river tributaries are
drastically affected." (P. 92.) (See file of documents relating to the second round of oral
arguments of Hungary, 10-11 April 1997, Ann. III-5.)

The suspension of the works at Dunakiliti certainly impaired the interests of Czechoslovakia
inasmuch as they related to the commissioning of the almost completed Gabcikovo power
plant; the dykes which were already constructed had to be protected, and a supply of water
from the Danube was essential in order to operate the plant even as a run-of-the-river power
station. There was therefore a conflict of interests between the two States. Czechoslovakia
could rely on the provisions of the Treaty which the two Parties considered to be valid,
whereas Hungary referred to the ecological damage which would occur, as far as Dunakiliti
— unlike Nagymaros — was concerned, in the more distant future. However, the interests of
Czechoslovakia were of a financial nature, theoretically easy to compensate, whereas those of
Hungary related to the safe-guarding of its ecological balance and the difficult and uncertain
struggle against damage to its environment. In dubio pro natura.

The G/N Project had other consequences for the environment, the details of which were
discussed at length by the Parties, which presented [p188] them in diametrically opposed
ways. That detailed and conflicting presentation did not ease the Court's task and made it
harder for it to determine the facts not denied or challenged by one or the other of the Parties.

The Court held that the state of necessity, as a ground for precluding the wrongfulness of an
act not in conformity with an international obligation, can only be accepted on an exceptional
basis and, referring to the relevant International Law Commission Report, added that

"the state of necessity can only be invoked under certain strictly defined conditions which
must be cumulatively satisfied; and the State concerned is not the sole judge of whether those
conditions have been met'' (para. 51).

I entirely concur with that approach, but I cannot accept the conclusions drawn in this case by
the Court. It has concluded that, with respect to both Nagymaros and Gabcikovo,

"the perils invoked by Hungary, without prejudging their possible gravity, were not
sufficiently established in 1989, nor were they 'imminent'; and . . . Hungary had available to it
at that time means of responding to these perceived perils other than the suspension and
abandonment of works with which it had been entrusted" (para. 57).
This is absolutely not the case. As far as Hungary was concerned, what was at stake was the
safeguarding of an essential interest against a peril which was grave and imminent, that is to
say certain and inevitable, and any measures taken to counteract that peril would have
radically trans-formed the scope of the obligations to be performed under the Treaty. By
suspending and abandoning the works at Nagymaros, Hungary has not impaired an essential
interest of Czechoslovakia, and it is precisely by constructing the dam at Nagymaros that it
would have contributed to an unequalled state of necessity and to a situation catastrophic for
its capital. The existence of the peril alleged by Hungary was recognized — at least in part —
by the other Party, and Hungary therefore did not act in an arbitrary manner.

The first question asked in the Special Agreement was whether the Republic of Hungary was
entitled to suspend certain works for which it was responsible under the 1977 Treaty. The
Vienna Convention on the Law of Treaties is silent as to the state of necessity. However,
international law — and particularly the law of responsibility — recognizes it. The state of
necessity exists not only in theory, but also in reality. In the present case, even the strictest
criteria applied cumulatively prove that, as far as the construction of the Nagymaros dam is
concerned, Hungary was entitled to rely on that ground precluding its responsibility for not
having fulfilled one of its obligations under the 1977 Treaty. It was therefore entitled to
suspend and subsequently abandon the works at Nagymaros. As far as the suspension of the
works at Dunakiliti is concerned, the existence of a state of necessity is debatable, but
Hungary's anxieties [p189] regarding the ecological risks occasioned by the reservoir — and
partially recognized by Czechoslovakia itself — should not have been taken lightly, and still
less categorically refuted. That latter measure of suspension was undoubtedly provisional (the
installations at Dunakiliti have been maintained in good condition by Hungary up to the
present day). Although the circumstances prevailing on that site do not entirely relieve
Hungary of its responsibility, they do nonetheless provide some mitigation which the Court
should have taken into account.

The Court, whilst refusing to accept that Hungary was entitled to suspend and subsequently
abandon, in 1989, the works on the G/N Project relating to Nagymaros, recognizes — albeit
indirectly — that Hungary's position is well founded, when it manages to assert, in the
"prescriptive" part of its Judgment, that the Nagymaros dam should not be built: "with the
effective discarding by both Parties of peak power operation, there is no longer any point in
building it" (para. 134); "the construction of the Nagymaros dam would have become
pointless" (para. 138). Moreover, it must be acknowledged that the ecological considerations
that now weigh against the dam are the same as those holding in 1989. If it has finally been
concluded that the dam should not have been built in 1997, this is because in reality it should
not have been built in 1989, either.

The dispute between the two Parties is very much the result of their geographical situations.
The harmonization of the interests of the countries upstream and downstream is the crucial
problem of the law governing international watercourses. During the work done by the United
Nations on the Draft Convention on the Law of the Non-Navigational Uses of International
Watercourses, the upstream countries complained that the provisions of the draft limited their
right to use and develop the resources of those watercourses, whereas the downstream
countries criticized the provisions of the draft by maintaining that they failed to protect their
interests adequately and even allowed significant damage to be inflicted upon them. As far as
the course of the Danube is concerned, Slovakia is an upstream country and Hungary a
downstream country. In this Judgment the Court should have maintained a balance,
admittedly hard to achieve, between the interests of the upstream and the downstream
countries, and have ensured that harmonious progress in enhancement of the natural resources
would be carefully organized to prevent the long-term disadvantages from outweighing the
immediate advantages. Unfortunately, in the present case, it has not succeeded in doing so.

I have found it necessary to stress this question since the position to be taken, in particular, on
whether Hungary was entitled to suspend and subsequently abandon the works at Nagymaros,
and to suspend those at Dunakiliti, to a large extent determines the replies, or at least the
reason-ing, for the questions which follow.

***[p190]

I now come to the second question asked in the Special Agreement, that is, "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 . . .".

Since Slovakia has consistently maintained that the 1977 Treaty was extremely flexible and
essentially open-ended, the contracting parties were entitled to propose that it be adapted to
the requirements of environmental protection — having regard to new information and
experience gained — and even modified, in order that the Treaty might match those
requirements.. The abandonment of the construction of the Nagy-maros dam, whose main
function would have been to allow the use of the Gabcikovo power plant in peak mode (a use
for which there had been no prior agreement between the parties), has not called in question
the accomplishment of the object and purpose of the Treaty.

In September 1991, Mr. Vavrousek, the Czech Minister for the Environment, declared to the
Hungarian Parliament:

"I believe there is the only practicable way, a traditional one, that is being used not only in
case of international treaties, but also when new acts are adopted. It simply means to prepare a
new treaty and to incorporate into the last paragraph provisions that would cancel obsolete
parts of the 1977 Treaty." (Memorial of Slovakia, Vol. IV, Ann. 97, p. 249.)

In other words, that would have involved the conclusion of a treaty taking the place of the old
one, by modifying or abrogating those provisions that are out of date.

Between Mr. Vavrousek's visit to Budapest and the recourse to the "provisional solution" in
November 1991, only two months elapsed. That is an extremely brief interval when one
considers that the 1977 Treaty took two decades to prepare.
The Report of the Special Rapporteur on the Law on the Non-Navigational Uses of
International Watercourses noted the importance of the parties' duty to negotiate by citing the
Judgment delivered by the Court in the North Sea Continental Shelf cases. That obligation
flows from the very nature of the respective rights of the parties. It

"merely constitutes a special application of a principle which underlies all international

relations, and which is moreover recognized in Article 33 of the Charter of the United Nations
. . ." (I.C.J. Reports 1969, p. 47, para. 86).

From all these considerations, the Rapporteur concludes:

"there is a general principle of international law that requires negotiations among States in
dealing with international fresh water resources . . . [and they also have the obligation] to
negotiate the apportionment of the waters of an international watercourse" (Year[p191]book
of the International Law Commission, 1980, Vol. II, Part. 2, pp. 116-117, paras. 31 and 34).

The Articles of the Draft Convention on the Law of the Non-Navigational Uses of
International Waterways, adopted very recently by the Genera] Assembly of the United
Nations, are prompted by exactly the same principles.
The Court, in its Judgment (para. 141), reaffirms what it stated in the North Sea Continental
Shelf cases:

"[the Parties] are under an obligation so to conduct themselves that the negotiations are
meaningful, which will not be the case when either of them insists upon its own position
without contemplating any modification of it" {I.C.J. Reports 1969, p. 47, para. 85).

It is difficult to accept that during the two months in question, the contracting parties to the
1977 Treaty exhausted all the possibilities of reaching an agreement with respect to a
mutually acceptable modification of that instrument. However, the Czechoslovak Government
decided to change unilaterally the state of affairs established in the Treaty and openly to
breach it. Under the cover of a "provisional" measure, it undertook works which related to a
permanent construction and were not authorized by the Treaty, thereby making it impossible
to attain its object and purpose. Instead of negotiating in order to reach an agreement, it opted
for a policy of "faits accomplis", having recourse to unilateral measures when the negotiations
were still under way. The opportunity of a solution agreed between the Parties nonetheless
still existed.

The Parties do not agree as to when and how the decision was taken. On 31 August 1989 the
Czechoslovak Prime Minister, Mr. Adamec, raised the possibility of "unilateral measures" to
ensure the operation of the Gabcikovo darn. In its representation of 30 October 1989, Czecho-
slovakia indicated that:

"In the event that the Republic of Hungary fail to fulfil its obligations the Czechoslovakian
party would be obliged to implement a provisional technical solution . . . consisting in
diverting, for the Gabcikovo works, the volumes of Danube water agreed in the original treaty
. . .''

In a work by Egil Lejon, copies of which were made available to Members of the Court
during the Slovak stage of the site visit, the following is stated:

"January 17, 1991: Based on the report, the Slovak Government decides to start preparations
of the temporary solution, i.e. 'Variant C, not depending on Hungarian co-operation, however
not excluding the possibility of returning to the Treaty conditions in the future." (Gabclkovo-
Nagymaros, Old and New Sins, 1994 (English ed., 11996), p. 86.) [p192]

Furthermore, Bratislava newspapers reported that work had actually started on 2 April 1991.

Those various dates are only pertinent in the event that it has to be decided whether the parties
negotiated in good faith. However, the Court was not called upon to pronounce on the Parties'
responsibility for the failure of the negotiations. In any event, it does not appear to be
necessary to proceed with an examination of the different dates relevant to the recourse to the
"provisional solution" — namely Variant C — since the important one is that appearing in the
Special Agreement.

Variant C differs in several respects from the original Project included in the 1977 Treaty. Its
Phase I includes nine features unrelated to the 1977 Project, and Phase II has three. Instead of
the dam at Dunakiliti and its installations, another dam and its additional installations were
built, 10 kilometres upstream, in Czechoslovak territory, making it possible to divert waters
from the Danube into the bypass canal leading to Gabcikovo. The storage reservoir at Cunovo
has 30 per cent less surface area as compared with the original Dunakiliti project, which has
certainly reduced the risks of damage that polluted water retained by its dykes could have
caused to the groundwater. However, at the same time, Variant C has enabled the Danube to
be diverted from its old bed, over a 40-kilometre section instead of the 30 provided for in the
original Project, and this has had a significant impact on the environment of the Szigetkoz
region.

It is not, however, the range of new installations that puts Variant C quite at odds with the
original Project and renders it contrary to the 1977 Treaty and to general international law, but
the fact that its construction is the result of acts undertaken unilaterally by Czechoslovakia,
without the agreement of the directly interested party, Hungary. Variant C was built despite
repeated protests from Hungary and the fact that its operation was going to have direct and
significant consequences on the territory of Hungary.

Slovakia claims that Hungary acquiesced in the original plan to divert the Danube, and that it
was therefore not entitled to protest against the diversion carried out under Variant C. It is true
that, under the 1977 Treaty and the related Joint Contractual Plan, the Parties were to build
the Dunakiliti reservoir and divert the Danube waters into the bypass canal leading to
Gabcikovo, and from there to Szap. However, that part of the original Project did not deprive
Hungary of control over its border waters and did not expose the ecology of one of its regions
to the effects of uncontrollable activity by its neighbour. On the basis of the original Project,
Hungary was able to defend its own interests directly, and Variant C deprived it of that
possibility. Hungary no longer commanded the means made available to it by Article 14,
paragraph 1, of the 1977 Treaty in respect of its ability to withdraw water from the Danube in
excess of the specified quantities, in order to protect its essential interests regarding the
environment of the Szigetkoz. Only Slovakia is in a position to with-[p193] draw water from
the Danube at its own convenience. The old project, with all its drawbacks and defects, was a
joint enterprise under the joint control of both parties. Variant C no longer had or has anything
in common between the two parties, as a result of the exclusive control exercised by
Czechoslovakia — now Slovakia — and was never given any kind of approval by Hungary.

According to the well-known maxim sic utere tuo ut alienum non lae-das, one's property may
not be used in such a way as to cause significant damage to another. Furthermore, in the
present case, Czechoslovakia did not, and Slovakia today does not use its property in an
unlawful manner, but it has appropriated — and this is one of the key factors in the dispute —
something which did not belong to it, namely almost all the waters of the Danube. It follows
from Article 3 of the 1976 Agreement on Boundary Waters that the Parties to the dispute "are
entitled, unless otherwise agreed, to one-half of the natural discharge of water not augmented
by technical means". The Parties have not agreed otherwise, since there has been no
agreement between them as to Variant C. Variant C is therefore a grave breach both of the
1977 Treaty and of the 1976 Treaty on Boundary Waters.
In its Judgment the Court has rejected the doctrine of "approximate application" on which
Slovakia based its reasoning in order to justify the construction of Variant C. I concur with the
conclusion and reasoning of the Court on that point: "In spite of having a certain external
physical similarity with the original Project, Variant C thus differed sharply from it in its legal
characteristics." (Para. 77.)

Thus, I shall not labour the point. I am moreover in agreement with what the Court states in
its Judgment as regards the justification of Variant C as a countermeasure:

"an important consideration is that the effects of a countermeasure must be commensurate

with the injury suffered, taking account of the rights in question.
………………………………………………………………………………………………
The Court considers that Czechoslovakia, by unilaterally assuming control of a shared
resource, and thereby depriving Hungary of its right to an equitable and reasonable share of
the natural resources of the Danube — with the continuing effects of the diversion of these
waters on the ecology of the riparian area of the Szigetkoz — failed to respect the
proportionality which is required by international law.
………………………………………………………………………………………………
the diversion of the Danube carried out by Czechoslovakia was not a lawful countermeasure
because it was not proportionate" (paras. 85 and 87). [p194]

That observation, however, implies a need for certain additional conclusions. We are not
dealing simply with "intersecting wrongs" on the part of both Parties to the dispute. The Court
has not taken care to distinguish between the "wrongs", and has declared, inter alia, "that both
Hungary and Czechoslovakia failed to comply with their obligations under the 1977 Treaty".
It referred to the existence of "reciprocal wrongful conduct" and "reciprocal non-compliance"
(para. 114) as the consequence of "the fact that the Treaty has not been fully implemented by
either party for years" (para. 133). What should have been done was assess how serious the
unlawful conduct attributed to both Parties was in order to make the necessary inferences.

Hungary, by abandoning the construction of the Nagymaros dam, ruled out the peak mode
operation of the Gabcikovo power plant, a mode of operation on which there was no prior
agreement between the Parties, and, by suspending the works at Dunakiliti, it delayed the
com-missioning of the Gabcikovo power plant. As a result, it inflicted financial losses on its
partner whereas Czechoslovakia, later Slovakia, by building on its territory a dam unilaterally
diverting the waters of the Danube, violated a provision essential to the accomplishment of
the object and purpose of the Treaty, as laid down in Article 60, paragraph 3, of the Vienna
Convention on the Law of Treaties.

The construction of Variant C infringed several essential provisions of the 1977 Treaty: not
only those to be found in Articles 15, 19 and 20, but above all those concerning the joint use
and control of the plant built under the Treaty. The Agent of Slovakia admitted this expressly
during the hearings: "a joint operation was of the very essence of the Project under the 1977
Treaty" (CR97/7, p. 16, Tomka). Variant C therefore infringed the object and purpose of the
1977 Treaty itself, and that serious infringement is tantamount to a rejection of the Treaty by
Czechoslovakia.
The Court, in its Advisory Opinion on the Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), referred to General Assembly resolution 2145 (XXI), when stating:

"The resolution in question is therefore to be viewed as the exercise of the right to terminate a
relationship in case of a deliberate and persistent violation of obligations which destroys the
very object and purpose of that relationship." (I.C.J. Reports 1971, p. 47, para. 95.)

The object and purpose of the 1977 Treaty (the "socialist integration" of the States Members
of COMECON, included in its preamble, having in the event become obsolete) consisted in
joint utilization of the natural resources of the Danube. The unilateral diversion of these
waters and their exclusive utilization by Slovakia were undoubtedly a breach of a provision
essential to the accomplishment of the object and purpose of [p195] the Treaty, whereas the
conduct of Hungary simply delayed but did not preclude the commissioning of the power
plant; Hungary did not destroy "the object and purpose" of the treaty relationship.

I disagree with the Judgment of the Court when it concludes that Czechoslovakia was entitled,
in November 1991, to carry out Variant C (para. 88), given that:

"between November 1991 and October 1992, Czechoslovakia confined itself to the execution,
on its own territory, of the works which were necessary for the implementation of 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 to be taken" (para. 79) .
I cannot agree with that explanation for the following reasons:

The fact that the work on Variant C was only carried out on Czechoslovak territory does not
preclude its unlawfulness. A State can quite well use its own territory to breach its
international obligations, and there are numerous examples which could show this to be the
case. The fact that the works "could have been halted" is not a convincing argument either
and, in any event, work on Variant C was not stopped, as requested by Hungary — not even
for a limited time.

The constructions of Variant C could not be considered to be "works preparatory" to the

diverting of the Danube waters. Only the design and plans for Variant C may be so described,
but not the actual recourse to that Variant, namely the construction of works — dykes, dams
— intended for the diversion. The Judgment refers (in paragraph 79), to the commentary of
the International Law Commission on the Draft Articles on State Responsibility. However,
that commentary expressly mentions the following:

"With regard to the timing of any claim for cessation on the part of the injured State or States,
it is obvious that no such claim could be lawfully put forward unless the wrongful conduct
had begun, namely unless the threshold of unlawfulness had been crossed by an allegedly
wrongdoing State's conduct." ( Yearbook of the International Law Commission, 1993, Vol. II,
Part 2, p. 57, para. 14; emphasis added.)
Since Variant C, as such, constituted a breach of the 1977 Treaty, the unlawful conduct of
Czechoslovakia began when it proceeded to the construction of those works necessary for the
unilateral diversion of the Danube waters. It is completely arbitrary and inconsistent to
separate that conduct of Czechoslovakia — unlawful in my opinion — from its result —
unlawful according to the Court.

Accordingly, I conclude that Czechoslovakia acted unlawfully when, in November 1991, it

embarked on the provisional solution. In other [p196] words, it was no more entitled to do so
than to commission it in October 1992.

***
I feel obliged to express a dissenting opinion in respect of the reply to the third question put to
the Court, namely: "what are the legal effects of the notification, on 19 May 1992, of the
termination of the Treaty by the Republic of Hungary?" In other words, did the 1977 Treaty
remain in force?

On 19 May 1992, the Government of Hungary notified the Government of Czechoslovakia

that it would consider the 1977 Treaty to have been terminated as from 25 May of that same
year. Diplomatic exchanges show that it was Czechoslovakia's categoric refusal to suspend
the work on Variant C, even for a limited time, which determined the date of the Government
of Hungary's decision to terminate the Treaty. The main reason for that decision was a wish to
respond to the rejection of the Treaty by Czechoslovakia, constituted by the construction of
Variant C. Article 60 of the Vienna Convention on the Law of Treaties authorizes a
contracting party to act in this way, as will be shown later.

The Hungarian Government took its decision on the basis of the following considerations: (a)
state of necessity; (b) impossibility of performance; (c) fundamental change of circumstances;
(d) substantial breach of the Treaty by the other party; and, finally, (e) protection of the
environment which had become mandatory in international law.

As a preliminary, I would observe that in reality one does not often see "pure" or unequivocal
cases, in the sense that they require only one single abstract type of legal settlement or
solution. More often than not, the legal situation in which the parties find themselves falls
within the ambit of several rules of international law at the same time.

I shall not examine all the arguments put forward by Hungary. Its main argument to justify
termination of the 1977 Treaty is clearly that the construction of Variant C constituted a
breach of that Treaty, for the reasons given before the Court. Hungary described the grave
breach constituted by Variant C as a "repudiation" by Czechoslovakia of the Treaty,
constituting a fundamental change of circumstances (CR 97/13, p. 42, Crawford). The
aforementioned concepts and expressions reflect the situation which prevailed in May 1992,
viewed from different angles. Hungary further contended that that situation could be
characterized as a case of impossibility of performance and, of course, that the development
of international environmental law ought to be taken into consideration in this context.
From among these different approaches, I shall select the one which seems to me to be the
most adequate and the result of which best reflects the legal points characterizing the
situation. That will render superfluous [p197] the examination of the other arguments put
forward, which I do not think do more than "reorganize" those points differently and less
precisely.

Article 60, paragraph 1, of the Vienna Convention on the Law of Treaties provides:

"A material breach of a bilateral treaty by one of the parties entitles the other to invoke the
breach as a ground for terminating the treaty or suspending its operation in whole or in part."

Article 60, paragraph 3, provides as follows:

"A material breach of a treaty, for the purposes of this article, consists in:
(a) a repudiation of the treaty not sanctioned by the present Convention; or
(b) the violation of a provision essential to the accomplishment of the object or purpose of the
treaty."

Variant C constituted a violation of the provisions of the 1977 Treaty and other rules of
international law, since Hungary was deprived of the Danube waters which belonged to it. As
joint operation was the very essence of the Project provided for by the Treaty, the unilateral
diversion precluded the accomplishment of the object and purpose of the Treaty.
Notwithstanding the ecological effects that the diversion of the Danube is alleged to have had,
predictably, on Hungary, the mere fact of a unilateral diversion — taken on its own — was so
serious that it justified termination of the Treaty. The main and decisive reason for the
termina-tion is to be found in the construction of Variant C and its unlawfulness, which must
be described as a fundamental violation within the meaning of Article 60, paragraph 3 (b), of
the Vienna Convention. The question falls clearly within the ambit of the law of treaties. All
the other reasons put forward are merely subsidiary.

If Variant C truly constituted a grave breach, a fundamental violation of the Treaty — which
the Court itself has noted — Hungary was entitled to terminate the Treaty.

Was Hungary's decision premature?

It is true that the diversion of the waters of the Danube had not yet been completed in May
1992, but the grave breach of the Treaty had already begun — as I have shown earlier —
when Czechoslovakia started constructing Variant C in November of the preceding year. It is
difficult to accept that Hungary should have passively awaited completion of the construction
of Variant C. Czechoslovakia had on several occasions stated that it was determined to
implement the "provisional" solution. The bilateral negotiations were deadlocked; work on
Variant C was pro-gressing well and Czechoslovakia made no secret of its intention to carry
out a unilateral diversion of the Danube waters at Cunovo on the planned date, while refusing,
even for a strictly limited time, to suspend the works whose objective was no longer a
mystery. [p198]

When implementing Variant C, Czechoslovakia always described it, in so far as it was a

measure designed to attain the purpose of the 1977 Treaty, as an "approximate application" of
that Treaty. In an attempt to stop construction work, Hungary sought to deprive Variant C of
its alleged justification, and hence it announced its termination of the Treaty. Work on Variant
C was undertaken and completed on Czechoslovak territory alone. Termination of the 1977
Treaty was the only means available to Hungary to prevent Czechoslovakia from diverting the
Danube waters in the sector where both banks of the river belong to that country. On 19 May
1992, it notified Czechoslovakia that it would consider the Treaty to be terminated as from 25
May of that year. The period of notice was certainly very short but Article 65, paragraph 2, of
the Vienna Convention on the Law of Treaties, which provides for a three month time-limit,
contains — as it should be emphasized — the following exception: "except in cases of special
urgency". In such a case the time-limit may be less than three months. In May 1992, in the
face of very visible progress in the building of Variant C, Hungary was manifestly in such a
situation "of special urgency".

Recourse to termination of the 1977 Treaty proved ineffectual: Czechoslovakia's decision was
taken, and it was to remain irreversible. In fact, construction had started up and work was not
suspended for a single moment; it carried on, even after Hungary had notified its partner that
it considered the Treaty to be terminated. In any event, the unilateral diversion of the Danube
was completed on 26 October 1992, and the grave breach of the 1977 Treaty was complete.
Even if Hungary's Note of 19 May could — as the Court holds — have been considered
premature, it took effect, at the latest, when the diversion of the Danube waters was
completed.
Did Hungary, as a result of the alleged violations of its international obligations, forfeit its
right to terminate the 1977 Treaty?

In the first part of my dissenting opinion, I showed that, when suspending and then
abandoning the works at Nagymaros, Hungary acted out of a state of necessity, for which the
criteria — which do not need to be repeated here — were all met. The state of necessity
exonerated Hun-gary from the responsibility incurred on account of its failure to comply with
certain provisions of the 1977 Treaty. As far as the suspension of the works at Dunakiliti is
concerned, the majority of the criteria for a state of necessity were also met, but it is true that
Czechoslovakia had an essen-tial interest in the continuation of these works. Hungary, for its
part, completed the construction of the dykes downstream of Gabcikovo for which it was
responsible under the Treaty and it offered to compensate Czechoslovakia for such losses as
that State might have sustained. There are therefore, in Hungary's favour, circumstances
exonerating it from responsibility and certain mitigating circumstances, since the conduct for
which it can be reproached is not as serious as that constituted by [p199] Czechoslovakia's
construction of Variant C. The Treaty did not survive the joint effect of the serious breach
constituted by the diversion of the Danube and Hungary's notification of its termination. The
question of State succession to the Treaty is therefore irrelevant.

As far as the expression "related instruments" is concerned, it should be noted that with the
disappearance of the Treaty, the fundamental text which could hold all the instruments
together no longer exists. That expression subsequently lost any legal significance. That does
not mean that all the instruments whose provisions could have a certain relationship to those
of the 1977 Treaty have become obsolete. Their fate should be decided separately, having
regard to the relevant rules of international law.

***

The Court in its Judgment has taken the view, however, that the 16 September 1977 Treaty
remained in force and that the Slovak Republic, as successor State to the Federal Czech and
Slovak Republic, became a party to the Treaty as from 1 January 1993. With regard to the
legal consequences of the Judgment, including the rights and obligations for the Parties which
the Court was asked to determine under Article 2, paragraph 2, of the Special Agreement, the
Court, in paragraph 2 of the operative part of the Judgment, states at point B that

"Hungary and Slovakia must . . . take all necessary measures to ensure the achievement of the
objectives of the Treaty of 16 September 1977, in accordance with such modalities as they
may agree upon".

For its part, point C of paragraph 2 of the operative part uses the words "in accordance with
the Treaty", and point E the expression "in accordance with the relevant provisions of the
Treaty".

By deciding that the 1977 Treaty is still in force, the Court made its own task more difficult
and did nothing to ease that of the Parties since they have to reach an agreement on the
resolution of questions over which they have been in dispute. According to its reasoning,

"The Court would set a precedent with disturbing implications for treaty relations and the
integrity of the rule pacta sunt servanda if it were to conclude that a treaty in force between
States . . . might be unilaterally set aside on grounds of reciprocal non-compliance." (Para.
114.)

I must observe that the expression "reciprocal non-compliance" does not adequately reflect
the cause or causes of the termination of the treaty. However, that is not my essential
objection regarding that part of the Judgment; rather am I concerned at the divergences — not
to say con-tradictions — between its "declaratory" part and its "prescriptive" part. The Court,
while maintaining the Treaty in force, wanted to avoid being [p200] set against the maxim
summum jus summa injuria, and it recognized that the 1977 Treaty, in its original form, did
not apply. I will cite the pertinent passages of the Judgment in extenso:

"133. The Court, however, cannot disregard the fact that the Treaty has not been fully
implemented by either party for years, and indeed that their acts of commission and omission
have contributed to creating the factual situation that now exists. Nor can it overlook that
factual situation — or the practical possibilities and impossibilities to which it gives rise —
when deciding on the legal requirements for the future conduct of the Parties.
………………………………………………………………………………………………
What is essential, therefore, is that the factual situation as it has developed since 1989 shall be
placed within the context of the preserved and developing treaty relationship, in order to
achieve its object and purpose in so far as that is feasible. For it is only then that the irregular
state of affairs which exists as the result of the failure of both Parties to comply with their
treaty obligations can be remedied.

134. What might have been a correct application of the law in 1989 or 1992, if the case had
been before the Court then, could be a miscarriage of justice if prescribed in 1997. The Court
cannot ignore the fact that the Gabcikovo power plant has been in operation for nearly five
years, that the bypass canal which feeds the plant receives its water from a significantly
smaller reservoir formed by a dam which is built not at Dunakiliti but at Cunovo, and that the
plant is operated in a run-of-the-river mode and not in peak hour mode as originally foreseen.
Equally, the Court cannot ignore the fact that, not only has Nagymaros not been built, but
that, with the effective discarding by both Parties of peak power operation, there is no longer
any point in building it."

The reasoning of the Court in that context is based above all on the role of the time factor —
the eight years that have elapsed between 1989 and 1997: "What might have been a correct
application of the law in 1989 or 1992, if the case had been before the Court then, could be a
miscarriage of justice if prescribed in 1997." (One should not forget, in this context, that
Hungary proposed, as early as November 1989, that the disputes which the parties could not
resolve themselves should be decided by arbitration or by recourse to the International Court
of Justice.) In my opinion, however, the approach limiting the impact of the time factor to the
period that has elapsed since the dispute arose does not enable the Court, against the
background of a complex case, to incorporate all of its relevant aspects.

Time passed, not only between 1989 and 1997, but also between 1977 [p201] and 1989. The
1977 Treaty — a bilateral treaty — was concluded in a specific political context, that of the
bid to promote socialist integration of the States Members of the Council for Mutual
Economic Assistance, which was radically transformed in 1989. The economic climate
prevailing in 1977, marked by the economic system known as the command economy, was
overturned in a no less radical manner when the advent of the market economy modified all
expectations as to the cost and viability of the G/N Project. Furthermore, since the signature
of the Treaty, ecological knowledge and requirements have evolved rapidly. The Parties both
admitted that the Treaty was out of date: Hungary by proposing to amend it in November
1989; and Czechoslovakia in September 1991, by recognizing that the obsolete parts of the
Treaty should be cancelled (Memorial of Slovakia, Vol. IV, Ann. 97, p. 249). The sudden
recourse to Variant C, the so-called "provisional solution", prevented the Parties from finding
a mutually acceptable solution to the problems raised by the Treaty. The facts, which I need
not repeat at this juncture, that argue for modification of the Treaty and require the conclusion
of a new agreement already existed in 1989, and do not derive from the period subsequent to
that date as consequences of the unlawful conduct of the Parties.

The Judgment of the Court puts those Parties back in the context of an "old", "out-of-date"
Treaty, whilst prescribing sensible, reasonable and even essential changes: to exclude
definitively the peak mode operation of the Gabcikovo power plant; not to build the
Nagymaros works since "there is no longer any point in building [them]"; and, with regard to
environmental protection, to take "new norms" into consideration and to assess "new
requirements" appropriately, "not only when States contemplate new activities but also when
continuing with activities begun in the past" (para. 140).

Those norms would be more effective and the Parties to the dispute could apply them more
easily without the references to the 1977 Treaty. The Court could and should have founded
the prescriptive part of its Judgment not upon an obsolete Treaty which could not be
implemented — and which in my opinion had been terminated — but on the uncontested rules
of general international law and on other treaties and conventions in force between the Parties,
in order to resolve the problems they had inherited from the old G/N Project.

One may be certain that the termination of the 1977 Treaty would not have left the Parties to
the dispute in a legal vacuum. Their "relationship", as the Court noted,

"is also determined by the rules of other relevant conventions to which the two States are
party, by the rules of general international law and, in this particular case, by the rules of State
responsibility" (para. 132).

The preamble to the Special Agreement concluded by Slovakia and Hungary states that the
Slovak Republic is the "sole successor State" of the [p202] Czech and Slovak Federal
Republic "in respect of rights and obligations relating to the Gabcikovo-Nagymaros Project".
The rights and obligations created by the performance of the 1977 Treaty before it was
terminated are not affected by the termination of the Treaty. Under Article 70, paragraph 1, of
the Vienna Convention on the Law of Treaties:

"Unless the treaty otherwise provides or the parties otherwise agree, the termination of a
treaty under its provisions or in accordance with the present Convention:
(a) releases the parties from any obligation further to perform the treaty;
(b) does not affect any right, obligation or legal situation of the parties created through the
execution of the treaty prior to its termination." (Emphasis added.)

The installations constructed in good faith in fulfilment of the 1977 Treaty — such as
Gabcikovo and Dunakiliti — are not affected by the ultimate fate of that Treaty. Slovakia may
therefore keep up and use the Gabcikovo power plant in a manner not causing significant
damage to its neighbour, that is to say, in particular, by operating it in run-of-the-river mode.
As to the problems resulting from construction of the Cunovo dam and the diversion of the
Danube waters, they should be settled in accordance with other treaties in force between the
Parties, in particular the 1976 Boundary Waters Convention, and with the other principles and
rules of international law in force between the Parties and placing them under certain binding
obligations. It follows that each of the Parties is obliged to refrain from any act or any conduct
having harmful effects on the environment and causing significant damage to the other Party.

The most important point in that regard is the equitable and reasonable sharing of the Danube
waters. The Judgment of the Court cites Article 5, paragraph 2, of the Convention on the Law
of the Non-Navigational Uses of International Watercourses, according to which:

"Watercourse States shall participate in the use, development and protection of an

international watercourse in an equitable and reasonable manner. Such participation includes
both the right to utilize the watercourse and the duty to co-operate in the protection and
development thereof, as provided in the present Convention." (Para. 147.)
That principle, which may rightly be deemed to express a general rule of international law in
force, is relevant to the settlement of the dispute in this case. The unlawfulness of Variant C
lay in the appropriation by Czechoslovakia, then by Slovakia, of almost all the Danube
waters, a shared natural resource. That unilateral use must cease as soon as possible and
definitively. That aim can be achieved by "associating Hungary, on an equal footing, in the
operation and management, and the [p203] benefits" of the works built to date in fulfilment of
the 1977 Treaty or outside and against it, and that by way of the agreed utilization of the
natural resources of the Danube in the sector in question. This would provide a remedy for the
breach of international law constituted by Variant C, and the de facto status would be
transformed into a regime of law. That is the direction and spirit expressed by the Court in
paragraph 146 of it its Judgment. I concur with the essence of the message contained in that
paragraph, whilst considering myself obliged to express it differently in order to take account
of the reasons which I have attempted to set out above.

Finally, I reiterate my conclusion that the 1977 Treaty was lawfully terminated and that it is
no longer in force. The prescriptive part of the Judgment of the Court would, in my opinion,
have been more logical and more convincing if the Court had not based it on the 1977 Treaty
but rather on the rules of general international law and on the other treaties and conventions
binding on the Parties.

These considerations forced me to vote against points A, B and D of paragraph 1 of the

operative part.

As regards the points of paragraph 2 of the operative part, it goes without saying that, having
voted against point D of the first paragraph, I had to vote against point A of the second
paragraph. I am firmly convinced that Hungary and Slovakia must negotiate in good faith, on
the basis of the international law in force, to implement the rights and obligations relating to
the shared natural resources of the Danube. These shared resources should be exploited jointly
and in accordance with mutually agreed arrangements. However, the fact that point B of
paragraph 2 refers expressly to the objectives of the Treaty of 16 September 1977, point C to
a joint operational regime in accordance with that Treaty, and point E to the relevant
provisions of the said Treaty — which Treaty in my opinion, and having regard to the
arguments put forward above, is no longer in force — prevented me from voting in favour of
these points. At the same time, I voted in favour of point D on the reciprocal compensation of
Slovakia and Hungary — unless the Parties otherwise agree — for the damage they have
sustained on account of the construction of the System of Locks, since I considered that point
to be fair and in accordance with the relevant rules of international law.

(Signed) Geza HERCZEGH. [p204]

DISSENTING OPINION OF JUDGE FLEISCHHAUER

I have voted in favour of paragraph 1 A of the dispositif oï the Court's Judgment as I am in

agreement with the Court's finding therein

"that Hungary was not entitled to suspend and subsequently abandon, in 1989, the works on
the Nagymaros Project and on the part of the Gabcikovo Project for which the Treaty of 16
September 1977 and related instruments attributed responsibility to it" (para. 155).

I am also in agreement with the reasons that led the Court to this finding (paras. 27-59).

I have, moreover, voted in favour of paragraph 1 C of the dispositif according to which

"Czechoslovakia was not entitled to put into operation, from October 1992, this 'provisional
solution' " (para. 155). I share the view of the majority that

"Czechoslovakia, in putting Variant C into operation, was not applying the 1977 Treaty but,
on the contrary, violated certain of its express provisions, and, in so doing, committed an
internationally wrongful act" (para. 78).

As to the reasoning which led the Court to its findings in this respect (paras. 72-88), I note, in
particular, that the Court has not endorsed justification of Czechoslovakia's recourse to
Variant C by an alleged principle of "approximate application" (para. 76) and that "[t]he Court
thus considers that the diversion of the Danube carried out by Czechoslovakia was not a
lawful countermeasure because it was not proportionate" (para. 87). I am in agreement with
these positions of the Court.

I cannot agree, however, with most of the rest of the Judgment, and in particular not with its
central finding that

"the notification, on 19 May 1992, of the termination of the Treaty of 16 September 1977 and
related instruments by Hungary did not have the legal effect of terminating them" (conclusion
1 D, para. 155).

I am of the view that Hungary has validly terminated that Treaty by its notification of
termination of 19 May 1992, with effect from 25 May 1992, or — alternatively — as from 23
October 1992, i.e., the date of the actual damming. Accordingly, I regard the consequences,
which the majority of the Court draws in the five conclusions in part 2 of paragraph 155 as
legally flawed, inasmuch as they are based on the concept of [p205] the continuing validity of
the 1977 Treaty. I have therefore voted against four of them (i.e., conclusions 2 A, 2B, 2C and
2E); my vote in favour of conclusion 2D has to be seen in the light of my considerations on
the legal consequences of the Judgment set forth in Part II below.

My reasoning is as follows.

I. The Legal Fate of the 1977 Treaty

1. As to the date of the unlawfulness of the recourse by Czechoslovakia to Variant C, the

Judgment points only to the date when the actual damming of the Danube at Cunovo
occurred, i.e., to 23 October 1992:

"Czechoslovakia violated the Treaty only when it diverted the waters of the Danube into the
bypass canal in October 1992. In constructing the works which would lead to the putting into
operation of Variant C, Czechoslovakia did not act unlawfully." (Para. 108.)

"The Court notes that between November 1991 and October 1992, Czechoslovakia confined
itself to the execution, on its own territory, of the works which were necessary for the
implementation of 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 to be taken.
For as long as the Danube had not been unilaterally dammed, Variant C had not in fact been
applied." (Para. 79.)

Based on these findings the majority of the Court has concluded that:

"the notification of termination by Hungary on 19 May 1992 was premature. No breach of the
Treaty by Czechoslovakia had yet taken place and consequently Hungary was not entitled to
invoke any such breach of the Treaty as a ground for terminating it when it did." (Para. 108.)

These considerations are erroneous for two reasons:

Firstly, Czechoslovakia, when it "proceeded" to Variant C, as the expression used in Article 2,

paragraph 1 (b), of the Special Agreement reads, was not free to engage in this way of
proceeding. It follows from the Special Agreement that the time in question is November
1991. What happened in November 1991 is that work on Variant C began that month (para.
23). It is uncontested between the Parties that at that time, in spite of Hungary's violation of
the 1977 Treaty, the Treaty was in force between Czechoslovakia and Hungary.

The 1977 Treaty being in force in November 1991, both Czechoslovakia and Hungary were
under the obligation to perform it in good faith. [p206]

That is the basic rule underlying the whole fabric of the international law of treaties. It is
reflected in Article 26 of the Vienna Convention on the Law of Treaties ("Every treaty in
force is binding upon the parties to it and must be performed by them in good faith"). Good
faith in performing a treaty does not only concern the manner in which the treaty is applied
and implemented by the parties to it; good faith performance means also that the parties must
not defeat the object and purpose of the treaty. Under the Vienna Convention, the obligation
not to defeat the object and purpose of a treaty exists already before its entry into force.
According to Article 18 of the Convention:

"A State is obliged to refrain from acts which would defeat the object and purpose of a treaty
when:
(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to
ratification, acceptance or approval, until it shall have made its intention clear not to become a
party to the treaty; or
(b) it has expressed its consent to be bound by the treaty, pending the entry into force of the
treaty and provided that such entry into force is not unduly delayed."

I do not want to go into the question as to whether the whole of Article 18 corresponds
actually to general international law. However, as the International Law Commission
remarked in its Commentary on Article 15 (which became Article 18 in the text of the
Convention as adopted) — with a reference to the Permanent Court's decision in the case
concerning Certain German Interests in Polish Upper Silesia {Merits, Judgment No. 7,
P.C.I.J, Series A, No. 7, p. 30):

"That an obligation of good faith to refrain from acts calculated to frustrate the object of the
treaty attaches to a State which has signed a treaty subject to ratification appears to be
generally accepted." (Yearbook of the International Law Commission, 1966, Vol. II, p. 202.)

A fortiori does that obligation apply to a treaty after its entry into force. It follows from there
that a State party to a treaty in force is not free to engage in — even on its own territory as
Czechoslovakia did as from November 1991— construction works which are designed to
frus-trate the treaty's very object, i.e., in the present case the creation and the operation of the
Joint Project. The question of a justification of Czechoslovakia's construction work as
countermeasure does not arise, as the Court has — rightly — found that the diversion of the
Danube carried out by Czechoslovakia — which is the central part of Variant C — was not a
lawful countermeasure because it was not proportionate (para. 87).

Secondly, I do not regard — as the majority of the Court does — the putting into operation of
Variant C as a wrongful act which consisted [p207] only in the actual clamming of the
Danube in October 1992. In my view, the putting into operation of Variant C constituted a
continuing wrongful act in the meaning of Article 25 of the ILC Draft on State Responsibility
(Report of the International Law Commission on the work of its forty-eighth session, 6 May-
26 July 1996, Official Records of the General Assembly, Fifty-first Session, Supplement No.
10 (A/51/10), p. 133), which extended from the passing from mere studies and planning to
construction in November 1991 and lasted to the actual damming of the Danube in October of
the following year. This is so because Czechoslovakia, in November 1991, entered into the
construction phase in the certainty that Hungary would not, and could not, in view of the
position taken not only by its Government but also by its Parliament, return to the
implementation of the 1977 Treaty. At the same time, Czechoslovakia was firmly determined
to start production at the Gabcikovo hydroelectric power plant as soon as it was technically
possible and to that end to dam the Danube at Cunovo at the next occasion when that would
be feasible, i.e., during the low-water season in October 1992. How firmly both sides were
locked in their respective positions is illustrated by their diplomatic exchanges. In April 1991,
the Hungarian Parliament had recommitted the Government to negotiate with the
Czechoslovak Government "regarding the dissolution by joint agreement of the Treaty
concluded on 16 September 1977" (Parliamentary resolution 26/1991 (IV.23) Regarding the
Government's Responsibility in Connection with the Gabcikovo-Nagymaros Barrage System,
Memorial of Slovakia, Vol. IV, Ann. 88, p. 215) and instructed the Government to

"concurrently initiate the conclusion of a new international treaty to settle the issue of the
consequences of the non-construction (abandonment) of the barrage system and associated
main projects" (ibid).

Consequently, Hungary not only constantly protested the unilateral measures initiated by
Czechoslovakia in order to put Variant C into operation, but it continued to ask for the
abrogation of the 1977 Treaty and its replacement by a new agreement :

"the mandate of the Hungarian Governmental Delegation was determined by the Resolution
of Parliament, . . . Freed from the politics of the past, we can re-evaluate the disputed problem
from a professional/scientific viewpoint, namely, the ecological effects, flood protection,
navigation, energy, economic, technical/security and other questions of the Barrage System
related to the 1977 Interstate Treaty or any other solution." (Hungarian Minister without
Portfolio to Slovak Prime Minister, 7 November 1991, Memorial of Hungary, Vol. 4, Ann.
67, p. 122.) [p208]

"the Hungarian Party has repeatedly (beginning in summer of 1989) offered the Czech and
Slovak Party the chance to co-operate and to amend the 1977 Interstate Treaty, and to
conclude a new treaty, . . . the Czech and Slovak Party should not undertake any work which
would be aimed at unilateral solutions (which may, perhaps, mean the diversion of the
Danube in contravention of international law)" (Letter from the Hungarian Minister for
Environmental Protection and Territorial Development and the Minister without Portfolio to
the Czechoslovak Minister of Environmental Protection of 6 December 1991, Memorial of
Hungary, Vol. 4, Ann. 68, p. 124).

"In light of this the Hungarian Government deems the decision brought about on 12
December 1991 by the Czech and Slovak Federal Republic unlawful and unacceptable and
calls upon the Czech and Slovak Federal Republic to discontinue work on the diversion of the
Danube." (Note Verbale from the Ministry of Foreign Affairs of the Republic of Hungary to
the Embassy of the Czech and Slovak Federal Republic, 14 February 1992, ibid., Ann. 74, p.
135.)

Czechoslovakia on the other hand, in the critical period between the autumn of 1991 and May
1992, when Hungary came through with its notification of termination of the 1977 Treaty,
consistently gave this message to Hungary.

"I would once again emphasise, however, that Czechoslovakia will only find acceptable a
variant which would make the operation of the Gabcikovo Barrage possible." (Slovak Prime
Minister to Hungarian Minister without Portfolio, 19 September 1991, ibid., Ann. 62, p. 113.)

"Work on the temporary measures will also cease if the Hungarian Party discontinues its
unilateral breach of the 1977 Treaty and recommences the obligations provided for it therein
or if an agreement is concluded between the Republic of Hungary and the Czech and Slovak
Federal Republic as to some other solution regarding the fate of the Project.
………………………………………………………………………………………………
The Government of the Czech and Slovak Federal Republic is prepared to continue
negotiations with the Hungarian Government on all levels regarding the situation which has
developed. At the same time, it cannot agree to the cessation of work on the provi-sional
solution." (Note Verbale from the Ministry of Foreign Affairs of the Czech and Slovak
Federal Republic to the Ministry of Foreign Affairs of the Republic of Hungary, 17 March
1992, ibid., Ann. 76, p. 139.)
"Czechoslovakia] has shown enough good intentions and a readiness to negotiate, but it can
no longer give consideration to the time-wasting and delays which are being used by
Hungary, and thus, it [p209] cannot suspend work related to the provisional solution. In my
view, until the Danube is closed (31 October 1992) there is still an opportunity to resolve the
debated question by way of an agreement between the two States." (Czechoslovak Prime
Minister to Hungarian Prime Minister, 23 April 1992, Memorial of Hungary, Vol. 4, Ann. 79,
p. 147.)

Czechoslovakia did not reject the formation of a joint committee of experts, including
"foreign experts nominated by the European Community based on the needs of both Parties"
(Slovak Prime Minister to Hungarian Minister without Portfolio, 18 December 1991, ibid.,
Ann. 69, p. 126). But the Slovak Prime Minister added:

"I am repeatedly stressing that, because of the high state of readiness of the Gabcikovo plant,
the only solution that is acceptable for us is one which takes into account the putting into
operation of the Gabcikovo plant." (Ibid.)

And on 8 January 1992 the Slovak Prime Minister repeated this position:

"We repeatedly emphasized at joint negotiations undertaken by the Governmental Delegations

of the CSFR and the Republic of Hungary that we can only accept a solution which is aimed
at the commencement of operations of the Gabcikovo Barrage. This demand is justified by the
advanced stage of the construction at Gabcikovo and the amount of material resources
invested.
………………………………………………………………………………………………
The Czechoslovak Party is willing to take into consideration the conclusions of the work done
by such a committee of experts in any further procedures regarding the Gabcikovo-
Nagymaros Barrage System. It is also known that the Government of the CSFR is willing to
suspend the provisional solution on its own sovereign territory insofar as the Government of
the Republic of Hungary is able to find an opportunity to enter into a joint solution." (Ibid.,
Ann. 72, p. 132.)

In the light of these circumstances, when the construction work for Variant C got under way,
on both sides the point of no return was passed. There was a continuum and the Czechoslovak
action of November 1991 and its action undertaken in October 1992 share the same legal defi-
ciency. The putting into operation of Variant C was an internationally wrongful act extended
over time between November 1991 and October 1992.
Since I am thus — contrary to the opinion expressed in the Court's Judgment — of the view
that Czechoslovakia was not entitled to proceed, in November 1991, to Variant C, I am also in
disagreement with the conclusion in paragraph 1 B of the dispositif of the Judgment: "that
Czecho-[p210] Slovakia was entitled to proceed, in November 1991, to the 'provisional
solution'" (para. 155). Nor can I agree with paragraph 1 D of the dispositif:

"that the notification, on 19 May 1992, of the termination of the Treaty of 16 September 1977
and related instruments by Hungary did not have the legal effect of terminating them" (ibid.)

in so far as it is based on the allegedly premature giving of the notification of termination by

Hungary (para. 108).

2. I would disagree with the conclusion drawn by the majority based on the point in time at
which Hungary made its notification of termination even if I shared — quod non — the view
that Czechoslovakia violated the 1977 Treaty only in October 1992. What that view means is
that the notification of termination was not warranted in May, as no breach of the Treaty had
yet occurred (para. 108), but that when the damming of the Danube happened, in October, the
event occurred too late as far as the Hungarian notification is concerned. This view amounts,
in its practical consequence, to an extraordinary formalism: a unilateral legal act, the
notification, is discounted because a certain event, although expected and foreseen, had not
yet happened. The event happens, nothing else changes, but still legal effects of the earlier act
are said not to arise as it had been premature. This approach to a matter of international law
does not correspond to the requirements of good faith. As the Court has said:

"One of the basic principles governing the creation and performance of legal obligations,
whatever their source, is the principle of good faith. Trust and confidence are inherent in
international cooperation, in particular in an age when this co-operation in many fields is
becoming increasingly essential." (Nuclear Tests (Australia v. France), Judgment, I.C.J.
Reports 1974, p. 268, para. 46.)

If one regards — as the majority of the Court does — Hungary's notification of termination as
premature, then one must also admit that it would have been possible for Hungary to
withdraw this act and to substitute it later by a new notification of termination based on the
events of October 1992. The principle of good faith requires that under such circumstances
the defect of Hungary's original act, the, in the view of the Court, premature giving of its
notification of termination of the 1977 Treaty, has to be regarded as remedied once the
missing factual event has occurred. That the occurrence of a subsequent event can be an
adequate ground for remedying a defective unilateral act has been confirmed by the
Permanent Court when it stated in the case concerning the Mavrommatis Palestine
Concessions:

"Even if the grounds on which the institution of proceedings was based were defective for the
reason stated, this would not be an [p211] adequate reason for the dismissal of the Applicant's
suit. . . . Even, therefore, if the application were premature because the Treaty of Lausanne
had not yet been ratified, this circumstance would now be covered by the subsequent deposit
of the necessary ratifications." (1924, P.C.I.J., Series A, No. 2, p. 34.)
And in the case concerning Certain German Interests in Polish Upper Silesia the Permanent
Court said:

"Even if, under Article 23, the existence of a definite dispute were necessary, this condition
could at any time be fulfilled by means of unilateral action on the part of the applicant Party.
And the Court cannot allow itself to be hampered by a mere defect of form, the removal of
which depends solely on the Party concerned." (1925, P.C.I.J., Series A, No. 6, p. 14.)

Even if, therefore, the date of 19 May 1992 is not regarded as a suitable date for Hungary's
notification of termination, this defect is to be regarded as being remedied as from 23 October
1992, date of the actual damming of the Danube.

3. In its finding that

"the notification, on 19 May 1992, of the termination of the Treaty of 16 September 1977 and
related instruments by Hungary did not have the legal effect of terminating them" (para. 155
(1) D, see also para. 108),
the majority of the Court did not base itself alone on the ground that Hungary's notification
had been premature. Two more grounds are given, neither of which I can agree with.
The first of these additional reasons is

"that Czechoslovakia committed the internationally wrongful act of putting into operation
Variant C as a result of Hungary's own prior, wrongful conduct. As was stated by the
Permanent Court of International Justice:

'It is, moreover, a principle generally accepted in the jurisprudence of international arbitration,
as well as by municipal courts, that one Party cannot avail himself of the fact that the other
has not fulfilled some obligation or has not had recourse to some means of redress, if the
former Party has, by some illegal act, prevented the latter from fulfilling the obligation in
question . . .' (Factory at Chorzow, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No.
9, p. 31).

Hungary, by its own conduct, had prejudiced its right to terminate the Treaty; this would still
have been the case even if Czechoslovakia, by the time of the purported termination, had
violated a provision essential to the accomplishment of the object or purpose of the Treaty."
(Para. 110; emphasis added.) [p212]

I do not want to put into doubt this general rule; however, I do not think that the principle
applies in the circumstances of the present case.

My objection to the Judgment in this respect is twofold: firstly, the Court overlooks that
recourse to Variant C was neither automatic nor the only possible reaction of Czechoslovakia
to Hungary's violations of the 1977 Treaty. Czechoslovakia would have been entitled to
terminate the Treaty. If it did not want to do this, it could, for example, have provided
unilaterally for participation of Hungary in the realization of Variant C, possibly in
combination with a third party dispute settlement clause. Secondly, the Court, in basing its
negation of a right of Hungary to terminate the 1977 Treaty in response to the realization by
Czechoslovakia of Variant C, on the fact that Hungary itself had violated the Treaty first, does
not take account of its own conclusion that:

"Czechoslovakia, by unilaterally assuming control of a shared resource, and thereby depriving

Hungary of its right to an equitable and reasonable share of the natural resources of the
Danube — with the continuing effects of the diversion of these waters on the ecology of the
riparian area of the Szigetkoz — failed to respect the propor-tionality which is required by
international law" (para. 85),

and that the derivation of the Danube "was not a lawful countermeasure because it was not
proportionate" (para. 87).

What applies in the present case is this: Hungary, by its prior violation of the 1977 Treaty, had
not become a legal outlaw which must endure every measure with which Czechoslovakia
could come up in response. The principle that no State may profit from its own violation of a
legal obligation does not condone excessive retaliation. The principle, as stated by the
Permanent Court and applied to the present case, means that one Party, Hungary, would not
be entitled to avail itself of the fact that the other Party, Czechoslovakia, has not fulfilled an
obligation if the first Party, Hungary, has by an illegal act prevented the other,
Czechoslovakia, from fulfilling the obligation in question. This, however, is not the case here.
The obligation not fulfilled by Czechoslovakia is the duty to respect Hungary's entitlement to
an equitable and reasonable share in the waters of the Danube. Hungary has not made it
impossible for Czechoslovakia to respect that right; as I have pointed out above, the unilateral
realization of Variant C by Czechoslovakia was neither automatic nor the only possible
reaction to Hungary's breaches of the Treaty. A broader interpretation of the principle in
question which would disregard the requirement of proportionality, would mean that the right
to counter-measures would go further, in respect to disproportionate intersecting violations of
a treaty, as it goes under general international law. It is therefore wrong to apply the principle
quite schematically to cases where there are intersecting ("reciprocal") violations of a treaty as
the Court does where it states [p213]

"that although it has found that both Hungary and Czechoslovakia failed to comply with their
obligations under the 1977 Treaty, this reciprocal wrongful conduct did not bring the Treaty
to an end nor justify its termination" (para. 114).

Rather, the recourse by Czechoslovakia to Variant C constituted a new breach of the 1977
Treaty, this time by Czechoslovakia. This new breach of the Treaty, by exceeding in
proportionality Hungary's earlier breaches, set in motion a new chain of causality and entitled
Hungary to defend itself by taking recourse to its right under Article 60 of the Vienna Con-
vention on the Law of Treaties, i.e., to terminate the Treaty. The requirements of Article 60,
paragraph 3(b), are met as

"the operation of Variant C led Czechoslovakia to appropriate, essentially for its use and
benefit, between 80 and 90 per cent of the waters of the Danube before returning them to the
main bed of the river, despite the fact that the Danube is not only a shared interna-tional
watercourse but also an international boundary river" (para. 78)

and thus Variant C infringed upon basic rights of Hungary, essential in the accomplishment of
the 1977 Treaty. In a situation of disproportionate intersecting violations of an international
treaty, such as the one in which Hungary and Czechoslovakia found themselves after the
latter's recourse to Variant C, the corrective element does not lie in the loss by the first
offending State of the right to defend itself against the second offence by way of termination,
but in a limitation of the first offender's — here Hungary's — right to claim redress for the
second offence.

I therefore come to the conclusion that — contrary to the view of the majority of the Court —
the fact that Hungary violated the 1977 Treaty first did not deprive it of its right to terminate
the same Treaty in reaction to its later violation by Czechoslovakia.

4. The other of the additional reasons invoked by the Court's majority in support of the
alleged invalidity of Hungary's notification of termination is

"that, according to Hungary's Declaration of 19 May 1992, the termination of the 1977 Treaty
was to take effect as from 25 May 1992, that is only six days later. Both Parties agree that
Articles 65 to 67 of the Vienna Convention on the Law of Treaties, if not codifying customary
law, at least generally reflect customary international law and contain certain procedural
principles which are based on an obligation to act in good faith." (Para. 109; emphasis added.)

I do not contest that Articles 65 to 67 may reflect certain procedural principles pertaining to
customary law, but I do not think that Hungary's [p214] notification of termination contradicts
these principles. In this respect, the delay of only six days provided for by Hungary for its
notification to become effective should not be seen in isolation. In fact, Hungary transmitted
its notification of termination a full six months after Czechoslovakia had proceeded to Variant
C in November 1991. During that period Hungary — as shown above in the quotations from
the diplomatic exchanges between the two Parties — did not cease to protest against the
unilateral measures taken by Czechoslovakia and to ask that they be stopped. Hungary also
pointed out that a continuation of these measures might put the fate of the 1977 Treaty into
question:

"I am hopeful that the representatives of the Government and the Parliament of the Czech and
Slovak Republic having regard to their historic responsibility will find an opportunity to take
the above reasonable points of view into consideration. If this expectation proves to be futile,
the Government of the Republic of Hungary would be compelled to review the consequences
of the discontinuation of the negotiations, the fate of the 1977 interstate Treaty and the
necessary counter-measures." (Hungarian Prime Minister to the Czechoslovak Prime
Minister, 19 December 1991, Memorial of Hungary, Vol. 4, Ann. 70, p. 129.)

"If the Government of the Czech and Slovak Federal Republic were to reject our proposals
anyway and continue the work aimed at the diversion of the Danube, which is a serious
breach of international law, then it will create a very difficult situation. . . . The Government
of the Czech and Slovak Republic would thus be placing the Hungarian Government into a
state of necessity forcing it to terminate the Treaty." (Hungarian Prime Minister to
Czechoslovak Prime Minister, 26 February 1992, ibid., Ann. 75, p. 138.)

In these circumstances the fact that Hungary, in May 1992, gave only six days' notice cannot
be regarded as contravening the requirements of good faith in the application of international
law.

These are the reasons which lead me to the conclusion that Hungary has validly terminated
the 1977 Treaty as from 25 May 1992 or — alternatively — as from 23 October 1992.

II. The Legal Consequences of the Judgment

From my considerations set forth above it follows that the determination of the legal
consequences arising from the answers to the first three questions asked of the Court by the
Special Agreement has to start from the finding that Hungary has validly terminated the 1977
Treaty as from 25 May — or alternatively 23 October — 1992. From there it follows that up
to that date the legal situation concerning the G/N Project was primarily governed by the 1977
Treaty and related instruments; after that [p215] date the situation is governed by general
international law and by those treaties which remain in force independently of Hungary's
termination of the 1977 Treaty, such as, inter alia, the 1948 Danube Convention, the 1976
Boundary Water Convention, the agreements relating to Danube fishery, as well as by
conventions of a general character such as the Vienna Convention on the Law of Treaties.

This means that as from 25 May to 23 October 1992 Hungary is no longer obliged to
construct at Nagymaros. The constructions at Dunakiliti do not have to be revived and
completed. For Slovakia, the termination of the 1977 Treaty means that it is no longer under
an obligation to arrange for the joint operation, together with Hungary, of the Gabcikovo
hydroelectric power plant or to share with Hungary the electricity generated there.

A second starting point is that the termination of the 1977 Treaty — whether one accepts 25
May 1992 or 23 October of the same year as the decisive date — means that Slovakia, which
came into existence as an independent State only as from 1 January 1993, has never become a
party to the 1977 Treaty. The fact that Slovakia has never succeeded to Czechoslovakia as a
party to the 1977 Treaty does not mean, however, that Slovakia has become separated from
this case. Slovakia has inherited the works produced under the G/N Project on its territory, in
particular the Cunovo reservoir, the bypass canal, the Gabcikovo lock and the Gabcikovo
power station. It is operating these installations. It has thus endorsed and continued the
Czechoslovak action regarding Variant C. Slovakia therefore must be held accountable for
Czechoslovakia's acts regarding the G/N Project.

A third starting point for the determination of the legal consequences should be the ex nunc
effect of the termination of international treaties. As laid down in Article 70 of the Vienna
Convention on the Law of Treaties, which is another provision reflecting a customary rule,
the termination of a treaty releases the parties from any obligation to further perform the
treaty but "does not affect any right of the parties created through the execution of the treaty
prior to its termination" (Art. 70, para. 1 (b)).

This means, inter alia, that the ownership of constructions which existed on 25 May to 23
October 1992 remains as provided for in Article 8 of the 1977 Treaty. If that creates
problems, it is for the Parties to sort them out by agreement between themselves.

A fourth starting point for the determination of the legal consequences of the Judgment is the
conclusion that Czechoslovakia was not entitled to put Variant C into operation from October
1992 (paragraph 1 C of the dispositif) as

"Czechoslovakia, in putting Variant C into operation, was not applying the 1977 Treaty but,
on the contrary, violated certain of its [p216]express provisions, and, in so doing, committed
an internationally wrongful act" (para. 78).
As I have pointed out above, I agree with the Judgment in these findings. However, it does
not follow from them that with the falling away of the 1977 Treaty all legal obstacles against
the continued operation of Variant C by Slovakia, as the successor to Czechoslovakia, were
removed. This is so because the appropriation by Czechoslovakia/Slovakia of the major part
of Hungary's share in the waters of the Danube for the full length of the bypass canal violated
not only the 1977 Treaty but, as the Judgment recognizes, the basic right of Hungary to an
equitable and reasonable sharing of the resources of an international watercourse (para. 78).
This is a right that existed not only under the Treaty but which exists under general
international law.

This means that there is no obligation for Slovakia to dismantle the constructions which
Czechoslovakia had built in order to make Variant C operational. These constructions are all
situated in what is now Slovak territory and their mere presence there does not contravene any
international legal obligation of Slovakia. After the 1977 Treaty had fallen away, there was,
and still is, no legal obligation for Slovakia any more to provide for a joint running of the
Gabcikovo hydroelectric power plant or for a sharing of profits. There continues to be,
however, a legal obstacle against the unilateral running of Variant C by Slovakia, and that is
the unilateral appropriation of, as the Judgment confirms (para. 78) between 80 and 90 per
cent of Hungary's share in the waters of the Danube without Hungary's consent on a stretch of
about 30 km in length. Hungary has requested the Court:

"to adjudge and declare further

………………………………………………………………………………………………

(5) that the Slovak Republic is under the following obligations: (a) to return the waters of the
Danube to their course along the international frontier between the Republic of Hun-gary and
the Slovak Republic, that is to say the main navigable channel as defined by applicable
treaties; (h) to restore the Danube to the situation it was in prior to the putting into effect of
the provisional solution" (para. 13).

The Court cannot uphold these requests. While the 1977 Treaty was in force, it had been
breached by both Parties, albeit in different ways and at different times. As has been
explained above, Hungary as the first offender did not lose its right to defend itself against
Czechoslovakia's later violation of the Treaty. However, as regards the kind of restitution
Hungary can claim for the diversion of the waters of the Danube, the fact that Hungary first
adhered to the 1977 Treaty and endorsed it, in 1983 asked for a slowing down, but by no
means the abandonment of its [p217] execution, in 1989 again pressed for an acceleration and
then, still in the same year, suspended and subsequently abandoned its share in the works at
Nagymaros and Dunakiliti, cannot be overlooked. By reason of its own previous behaviour
Hungary cannot in good faith be considered to be entitled to full restitution by return of the
full flow of water to the old Danube and the full restoration of the situation in which the
Danube was prior to the operation of Variant C. A water management regime must be
established that takes into account Hungary's ecological needs, as well as the fact that the
quantity of water going to the Slovak side and the rent-ability of the Gabcikovo hydroelectric
power plant are interrelated. It would certainly be desirable that such a regime, which would
be restricted to water management, but — as the Treaty does not exist any more — must not
make provision for the joint running of the Gabcikovo hydroelectric power plant, should be
agreed between the Parties themselves. Should the Parties fail, they would have to return to
the Court under Article 5, paragraph 3, of the Special Agreement.

The fifth starting point for the determination of the legal consequences of the Court's
Judgment must be the fact that as a consequence of the Judgment the flow of water in the old
bed of the Danube will be increased again. Irrespective of whether and to what extent
navigation will use the old Danube again, there will be a discernible principal channel. There
will therefore be no necessity for new or additional boundary arrangements. However,
Slovakia, as a riparian State of the Danube and a party to the 1948 Danube Convention, will
be under the legal obligation to make binding arrangements with the other States parties to the
Danube Convention in order to secure for their navigation through the bypass canal, the
Gabcikovo locks and the Cunovo reservoir, conditions corresponding to those provided for in
the Danube Convention. On the same line, Slovakia will also be under a legal obligation to
provide for the application, in the bypass canal and in the reservoir, of the provisions
concerning fisheries of the 1956 Treaty concerning the Regime of State Boundaries as well as
of the 1958 Convention concerning Fishing in the Waters of the Danube.

The sixth point to be taken into consideration in this context is that, as both Parties have
committed internationally illegal acts against each other, each Party owes the other
compensation. Hungary owes compensation to Slovakia for the damages arising out of the
delays in construc-tion caused by its suspension and subsequent abandonment of its share in
the works at Nagymaros and Gabcikovo between 13 May 1989 and 25 May to 23 October
1992. Slovakia in turn owes compensation to Hungary for losses and damages sustained by
Hungary and its nationals out of the unilateral derivation by Czechoslovakia and Slovakia of
waters of the Danube between the actual damming of the river in October 1992 and [p218] the
entry into force of the water management agreement, to be brought about in pursuance of the
Judgment of the Court. The amounts of compensation have to be fixed in accordance with
Article 5 of the Special Agreement.

(Signed) Carl-August FLEISCHHAUER. [p219]

DISSENTING OPINION OF JUDGE VERESHCHET1N

I regret that I cannot associate myself with those parts of the Judgment according to which
Czechoslovakia was not entitled to put the so-called Variant C ("provisional solution") into
operation from October 1992 (Judgment, para. 155, point 1 C) and:

"Slovakia shall compensate Hungary for the damage it has sustained on account of the putting
into operation of the 'provisional solution' by Czechoslovakia and its maintenance in service
by Slovakia" (para. 155, point 2D).

I firmly believe that Czechoslovakia was fully entitled in international law to put into
operation Variant C as a countermeasure so far as its partner in the Treaty persisted in
violating its obligations. Admittedly, Slovakia itself advanced this defence as "an alternative
legal argument" and did not fully develop it. The logic is very clear and has been repeatedly
explained by Slovakia. It does not believe Variant C to be a wrongful act, even prima facie,
while any countermeasure, viewed in isolation from the circumstances precluding its
wrongfulness, is a wrongful act in itself.

Slovakia takes the view that Variant C was a lawful, temporary and reversible solution
necessitated by the action of its partner and prefers to defend its decision on the basis of the
doctrine of "approximate application". However, a subjective view or belief of Slovakia
cannot preclude the Court from taking a different view on the matter. The Court is bound by
the questions put to it by the Parties in the Special Agreement, but not by the arguments they
advanced in their pleadings.

In this regard a very pertinent comment can be found in the International Law Commission's
Commentary to the Draft Articles on State Responsibility:

"Whether a particular measure constitutes a countermeasure is an objective question ... It is

not sufficient that the allegedly injured State has a subjective belief that it is (or for that matter
is not) taking countermeasures. Accordingly whether a particular measure in truth was a
countermeasure would be ... a matter for the tribunal itself to determine." (United Nations,
Official Records of the General Assembly, Fifty-first Session, Supplement No. JO (A/51/10),
pp. 162-163.) [p220]

The Parties requested the Court to decide:

"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 . . ."
(Special Agreement, Art. 2, para. 1 (b); emphasis added).

Since the Court has decided that "Czechoslovakia was entitled to proceed, in November 1991,
to the 'provisional solution'" (Judgment, para. 155, point IB), I shall further focus my
observations on the entitlement of Czechoslovakia to put this system into operation from
October 1992.
Entitlement to respond by way of proportionate countermeasures stems from a prior wrongful
act of the State which is the target of the counter-measures in question. According to the
Court's jurisprudence, established wrongful acts justify "proportionate countermeasures on the
part of the State which ha[s] been the victim of these acts ..." (Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America), Merits,
Judgment, I.C.J. Reports 1986, p. 127, para. 249). Entitlement to take countermeasures is
circumscribed by a number of conditions and restrictions.

The most recent and authoritative attempt to codify the rules relating to countermeasures was
made by the International Law Commission within the framework of its topic on State
Responsibility (United Nations, Official Records of the General Assembly, Fifty-first Session,
Supplement. No. 10 (A/51/10)). Some of the provisions formulated by the ILC in this regard
may be viewed as not merely codifying, but also developing customary rules relating to
countermeasures (formerly known as reprisals). Therefore, I do not think that the Court in its
assessment of the putting into operation of Variant C as a countermeasure may be
overreaching the requirements established by the ILC draft for a counter-measure to be
lawful.

Thus, to require that Variant C should have been the only means available in the
circumstances to Czechoslovakia would amount to applying to countermeasures the criterion
which the ILC considers to be indispensable for the invocation of "the state of necessity", but
does not specifi-cally mention in the text of the Articles dealing with countermeasures.

But even assuming this criterion should be applied to countermeasures as well, what other
possible legal means allegedly open to Czechoslovakia could there be apart from
countermeasures? Since the Court has found that Czechoslovakia was not entitled to put
Variant C into operation, it should in all fairness have clearly indicated some other legal
option or options whereby Czechoslovakia could effectively have asserted its rights under the
Treaty and induced its partner to return to the performance of its obligations. In my analysis
of the case, I have been unable to find any such effective alternative option available for
Czechoslovakia in 1991 or 1992. [p218]

Certainly one of the legal means according to Article 60 of the Vienna Convention on the
Law of Treaties could be the termination of the 1977 Treaty, in response to the material
breach committed by the other party. But for Czechoslovakia would this not have amounted to
bringing about by its own hand the result which Hungary had sought to achieve by its
unlawful actions?

Another conceivable legal means might have been the formal initiation of a dispute settlement
procedure under Article 27 of the 1977 Treaty. This Article stipulates that:

"1. The settlement of disputes in matters relating to the realization and operation of the
System of Locks shall be a function of the government delegates.
2. If the government delegates are unable to reach agreement on the matters in dispute, they
shall refer them to the Governments of the Contracting Parties for decision."

At the time of the proceeding to Variant C (November 1991), "the matters in dispute" had
long been in the hands of the Governments of the contracting parties. Therefore, no settlement
could realistically be expected through a procedure at a much lower level when all the
attempts to reach a settlement at the highest possible intergovernmental level had failed.

Would it be any more legally correct or, for that matter, realistic to insist that Czechoslovakia
should have come to the Court before putting Variant C into operation in October 1992?
Apart from the fact that Czechoslovakia was not legally bound to do so, it should be recalled
that more than four years elapsed between the filing of the Application in the present case and
the commencement of the hearings. One can easily imagine the amount of economic and
environmental damage as well as the damage relating to international navigation that could
have been caused by such a delay.

What should be borne in mind, however, is the fact that Czechoslovakia respected the
obligation to negotiate prior to taking countermeasures. The time between the first suspension
of works by Hungary in May 1989 and the proceeding to Variant C in November 1991 and
subsequently putting this system into operation in October 1992 was replete with fruitless
negotiations at different levels aimed at finding a resolution of the dispute (see paragraphs 61-
64 of the Judgment). The history of these negotiations clearly shows that, at least from the end
of 1990, the sole purpose of these negotiations for Hungary was the termination of the Treaty
and the conclusion of a new agreement dealing only with the consequences of this
termination, while for Czechoslovakia the purpose of negotiations was the continuation and
completion of the Joint Project in some agreed form within the Treaty framework. Hungary's
gradual withdrawal from the Joint Project in defiance of the 1977 Treaty led to the putting
into operation of Variant C. [p222]

The basic conditions for the lawfulness of a countermeasure are (1) the presence of a prior
illicit act, committed by the State at which the countermeasure is targeted; (2) the necessity of
the countermeasure; and (3) its proportionality in the circumstances of the case. Certain kinds
of acts are entirely prohibited as countermeasures, but they are not relevant to the present case
(these acts being the threat or use of force, extreme economic or political coercion,
infringement of the inviolability of diplomatic agents, derogations from basic human rights or
norms of jus cogens).

I believe all the above-mentioned conditions were met when Czechoslovakia put Variant C
into operation in October 1992. As to the first condition, it has been satisfied by the Court's
findings that Hungary was not entitled to suspend and subsequently abandon the works
relating to the Project or to terminate the Treaty (Judgment, para. 155, points 1 A and D). The
unilateral suspension of the works by Hungary at Nagy-maros and at Dunakiliti (initial
breaches of the 1977 Treaty by way of non-performance) and later the abandonment of the
work on the Project occurred before November 1991 — the date when, according to the
Special Agreement, Czechoslovakia proceeded to the "provisional solution". The illicit
termination of the Treaty by Hungary (19 May 1992) preceded the date when Czechoslovakia
put Variant C into operation (October 1992 according to the Special Agreement).

Countermeasures may be seen as "necessary" only if they are aimed at bringing about the
compliance of the wrongdoing State with its obligations and must be suspended once the
illicit act has ceased. This requirement therefore presupposes that countermeasures are
reversible by nature.

In the course of the pleadings Slovakia stated and repeated over and over again that Variant C
was conceived as a provisional and reversible solution, as an attempt to induce Hungary to re-
establish the situation which existed before its wrongful act. Significantly, the Working Group
of Independent Experts of the Commission of the European Communities, in its report of 23
November 1992, did not deny the technical feasibility of the return to the Treaty Project:

"In principle, the ongoing activities with Variant C could be reversed. The structures,
excluding some of the underground parts like sheet piling and injections, could in theory be
removed. The cost of removing the structures are roughly estimated to at least 30 per cent of
the construction costs." (Memorial of Hungary, Vol. 5, Part II, Ann. 14, p. 434.)

This statement confirms that, at least at the time of the damming of the Danube, Variant C
was a reversible measure and a return to some agreed joint scheme of the Treaty Project was
possible.
The contention of Hungary regarding Czechoslovakia's hidden inten-[p223]tions to act
unilaterally — intentions which allegedly already existed in the past and still do — may be of
scant relevance to the issue of the reversibility of Variant C.

The existence of such intentions at the governmental level and the readiness to realize them
would hardly be compatible with Czechoslovakia's conduct after the suspension of works
under the Treaty by Hungary. The Government of Czechoslovakia did not seize upon the
opportunity which had emerged to terminate the 1977 Treaty and to complete the Project
unilaterally, but instead tried to persuade its Hungarian counterpart to return to the
performance of its treaty obligations. At the same time, the Government of Czechoslovakia
expressed its willingness to meet many of Hungary's environmental concerns, proposing in
October 1989 negotiations on agreements relating to technological, operational and ecological
guarantees as well as to the limitation or exclusion of the peak mode operation of the
Gabcikovo-Nagymaros Barrage System. In any event, the veracity and fairness of the public
commitments of Czechoslovakia and Slovakia to return to the Joint Project may not be refuted
on the basis of mere conjectures, but could be tested only by the response of Czechoslovakia
and Slovakia to the positive actions by Hungary.

It remains for us to examine one more basic condition for the lawfulness of a countermeasure,
namely its proportionality in the circumstances of the case. It is widely recognized, in both
doctrine and jurisprudence that the test of proportionality is very important in the regime of
counter-measures and at the same time it is very uncertain and therefore complex.
To begin with, according to the ILC:

"there is no uniformity ... in the practice or the doctrine as to the formulation of the principle,
the strictness or flexibility of the principle and the criteria on the basis of which
proportionality should be assessed" (United Nations, Official Records of the General
Assembly, Fiftieth Session, Supplement No. 10 (A/50/10), p. 146).

The ILC also observes that "reference to equivalence or proportionality in the narrow sense ...
is unusual in State practice" (ibid., p. 147). That is why in the literature and arbitral awards it
is suggested that the lawfulness of countermeasures must be assessed by the application of
such negative criteria as "not [being] manifestly disproportionate", or "clearly
disproportionate", "pas hors de toute proportion"FN1, "not out of proportion", etc. The latter
expression ("not out of proportion") was employed by the ILC in its most recent draft on State
Responsibility. The text of the corresponding Article reads: [p224]

-----------------------------------------------------------------------------------------------------------------
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FN1 In French in the original text. 220
-----------------------------------------------------------------------------------------------------------------
----

"any countermeasure taken by an injured State shall not be out of proportion to the degree of
gravity of the internationally wrongful act and the effects thereof on the injured State" (Art.
49).

In its Commentary the Commission says that "proportionality" should be assessed taking into
account not only the purely "quantitative" element of damage caused, but also "qualitative"
factors such as the importance of the interest protected by the rule infringed and the
"seriousness of the breach" (United Nations, Official Records of the General Assembly,
Fiftieth Session, Supplement No. 10 (A/50/10), pp. 147-148).

If we take this approach which, in my view, adequately expresses State practice and
jurisprudence, we should weigh the importance of the principle pacta sunt servanda breached
by Hungary and the concrete effects of this breach on Czechoslovakia against the importance
of the rules not complied with by Czechoslovakia and the concrete effects of this
noncompliance on Hungary. The "degree(s) of gravity" in both cases need not necessarily be
equivalent but, to use the words of the Air Services Agreement Award, must have "some
degree of equivalence" (International Law Reports, Vol. 54, p. 338), or in the words of the
ILC must "not be out of proportion".

The task is not an easy one and may be achieved only by way of approximation, which means
with a certain degree of subjectivity. Weighing the gravity of the prior breach and its effects
on the one hand, and the gravity of the countermeasure and its effects on the other, the Court
should, wherever possible, have attempted in the first place to compare like with like and
should have done so with due regard to all the attendant circumstances against the background
of the relevant causes and consequences. Following this approach, the Court should have
assessed by approximation and compared separately:

(1) the economic and financial effects of the breach as against the economic and financial
effects of the countermeasure;
(2) the environmental effects of the breach as against the environmental effects of the
countermeasure; and
(3) the effects of the breach on the exercise of the right to use commonly shared water
resources as against the effects of the countermeasure on the exercise of this right.
All these assessments and comparisons should have specifically been confined to the span of
time defined by the question put to the Court by the Parties, namely November 1991 to
October 1992. It should not be forgotten that the very idea and purpose of a countermeasure is
to induce the wrongdoing State to resume performance of its obligations. The sooner it does
so the less damage it will sustain as a result of the countermeasure.[p225]

On the first point of comparison, according to Slovakia "by May 1989, a total of USS2.3
billion (CSK 13.8 billion) had been spent by Czechoslovakia on the G/N Project" (Memorial
of Slovakia, para. 5.01). These figures, which naturally do not include the loss of energy
production and the cost of the protection, maintenance and eventual removal of the existing
structures, give the idea of the economic and financial losses which would inevitably have
been sustained by Czechoslovakia in the event of a complete abandonment of the Project.

For its part, Hungary did not, either in its written pleadings or in its oral arguments, give any
concrete figures evincing in monetary terms the amount of actual material damage sustained
as a result of Czechoslovakia's resort to Variant C. Hungary claimed its entitlement to the
payment by Slovakia of unspecified sums in compensation for possible future damage, or
potential risk of damage, which might be occasioned by Variant C. Although it is true that
"[n]atural resources have value that is not readily measured by traditional means" (Reply of
Hungary, Vol. 1, para. 3.170), uncertain long-term economic losses, let alone the mere
potential risk of such losses, may not be seen as commensurable with the real and imminent
threat of having to write off an investment of such magnitude.

In terms of comparative environmental effects, Variant C could be seen as advantageous

against the originally agreed project, due to a smaller reservoir and the exclusion of peak
mode operation. On the other hand, in the event of the total abandonment of the project, the
waterless bypass canal and other completed but idle structures would have presented a great
and long-lasting danger for the environment of the whole region. As stated in the Judgment

"It emerges from the report, dated 31 October 1992, of the tripartite fact-finding mission . . .,
that not using the system . . . could have given rise to serious problems for the environment."
(Para. 72.)

Also, it is necessary to compare the gravity and the effects of the breach of the 1977 Treaty by
Hungary with the gravity and the effects of the response by Czechoslovakia in terms of their
respective rights to the commonly shared water resources. Hungary and Czechoslovakia had
agreed by treaty on a scheme for common use of their shared water resources, which use they
evidently considered equitable and reasonable, at least at the time when this agreement was
reached. Both States had made important investments for the realization of the scheme agreed
upon. At the time when one of the States (Czechoslovakia) had completed 90 per cent of its
part of the agreed work, the other State (Hungary) abruptly refused to continue discharging its
treaty obligations. Due to the technical characteristics of the project, Hungary thereby
deprived Czechoslovakia of the practical possibility of benefiting from the use of its part of
the shared water resources for the purposes essential for [p226] Czechoslovakia, clearly
defined in the Treaty and expressly consented to by Hungary.
In response to this illicit act, Czechoslovakia likewise failed to act in accordance with its
obligations under the 1977 Treaty. By putting into operation Variant C, it temporarily
appropriated, on a unilateral basis and essentially for its own benefit, the amount of water
from which originally, according to the Treaty and the Joint Contractual Plan, both States
were entitled to benefit on equal terms. At the same time, Czechoslovakia reiterated its
willingness to return to the previously agreed scheme of common use and control provided
that Hungary ceased violating its obligations. The possibility of a revision by agreement of the
original joint scheme was not excluded either.

In those circumstances and as long as Hungary failed to perform its obligations under the
1977 Treaty and thus, of its own choosing, did not make use of its rights under the same
Treaty, Czechoslovakia, in principle, by way of a countermeasure and hence on a provisional
basis, could channel into the Gabcikovo structure as much water as had been agreed in the
Joint Contractual Plan. Moreover, Article 14 of the 1977 Treaty provided for the possibility,
under a certain condition, that each of the Parties might withdraw quantities of water
exceeding those specified in the Joint Contractual Plan (see Judgment, para. 56).

Let it be assumed, however, that in view of all the attendant circumstances and the growing
environmental concerns Czechoslovakia, as a matter of equity, should have discharged more
water than it actually did into the old river bed and the Hungarian side-arms of the Danube.
This assumption would have related to only one of the many aspects of the proportionality of
the measure in question, which could not in itself warrant the general conclusion of the Court
that Czechoslovakia was not entitled to put Variant C into operation from October 1992.

For the reasons stated above, I could not vote for paragraph 155, point 1C, of the Judgment.
Nor could I support paragraph 155, point 2 D, in so far as it does not, regrettably, differentiate
between the obligation of the State which had committed a prior illicit act and that of the State
which responded by way of a countermeasure. It goes without saying that my negative vote
on paragraph 155, point 2D, as a whole must not be understood as a vote against the first part
of this paragraph.

(Signed) Vladlen S. VERESHCHETIN. [p227]

DISSENTING OPINION OF JUDGE PARRA-ARANGUREN

1. Although I have voted for the operative part of the Judgment, with the exception of
paragraph 1, point C, my favourable vote does not mean that I share each and every part of
the reasoning followed by the majority of the Court in reaching its conclusions.

2. I have voted against paragraph 1, point C, of the operative part of the Judgment for the
following reasons.

3. At the time of Hungary's suspension and later abandonment of works, some of those works
were largely completed, especially at the Gabcikovo section of the barrage system. As a result
of Hungary's violations of its obligations under the 1977 Treaty, Czechoslovakia was entitled
to terminate it, according to general international law, as codified in Article 60 of the 1969
Vienna Convention on the Law of Treaties. However, Czechoslovakia did not exercise that
right and decided to maintain the 1977 Treaty in force.

4. Nonetheless, Hungary was not willing to continue to comply with its treaty obligations, and
the Hungarian Government decided on 20 December 1990, that

"The responsible ministers and the Governmental Plenipotentiary should start negotiations
with the Government of the Czechoslovak Federal Republic on the termination of the 1977
Treaty by mutual consent and on the conclusion of a treaty addressing the conse-quences of
the termination." (The Hungarian Parliament ratified this decision on 16 April 1991 —
Memorial of Hungary, Vol. 4, Ann. 153, p. 366, and Ann. 154, p. 368.)

5. As is acknowledged in the Judgment (see para. 72), the position adopted by Hungary made
the situation very difficult for Czechoslovakia, not only because of the huge sums invested so
far, but also because of the environmental consequences of leaving unfinished and useless the
constructions already in place and, in some sections of the barrage system, almost complete.

6. Besides, it is easy to understand the impossibility for the Czechoslovak Government to

justify the petition of substantial amounts of money necessary to minimize the environmental
damage and degradation of the region, in the event that the existing constructions were left in
their unfinished state, as described by the Czechoslovak Federal Committee for [p228]
Environment in its "Technical-Economic Study on Removal of the Water Work Gabcikovo
with the Technique of Reclaiming the Terrain", dated July 1992 (Reply of Slovakia, Vol. II,
Ann. 3).

7. For these reasons, Czechoslovakia decided to finish the works that Hungary had yet to
complete in Czechoslovak territory, according to the 1977 Treaty, i.e., the construction of the
tailrace canal of the bypass canal and of a connecting dyke from this canal to the site of the
Danube's damming close to the Dunakiliti weir (Art. 5, para. 5(b), of the 1977 Treaty).
Considering Hungary's refusal to finish the constructions it had begun, in my opinion the
decision taken by Czechoslovakia was lawful, because the 1977 Treaty was in force between
the parties, and Czechoslovakia took over Hungary's role in order to guarantee the
achievement of its object and purpose.

8. There were some other works under Hungarian responsibility to be finished in Hungarian
territory, and Czechoslovakia could not finish them without violating the territorial
sovereignty of Hungary, unless Hungary gave its consent for the completion. Since Hungary
had decided to negotiate only the termination of the 1977 Treaty, there was no possibility of
obtaining its authorization in order to finish those constructions already started.

9. Faced with this situation, which came into existence because of the internationally
wrongful acts committed by Hungary by violating its obligations under the 1977 Treaty, in
my opinion Czechoslovakia was entitled to take the necessary action, not only to realize its
object and purpose, but also to solve, in the best possible way, the ecological and economic
problems caused by the unfinished constructions. Therefore, Czechoslovakia was legally
justified in adopting the "provisional solution" referred to in Article 2, paragraph 1 (b), of the
Special Agreement (hereinafter "Variant C"), i.e., a temporary solution that could be reversed
as soon as Hungary resumed compliance with its obligations under the 1977 Treaty.

10. This temporary character was established by the European Communities-Czechoslovakia-

Hungary Report of the Working Group of Independent Experts on Variant C of the
Gabcikovo-Nagymaros Project, dated 23 November 1992, where it is stated that:

"In principle, the ongoing activities with Variant C could be reversed. The structures,
excluding some of the underground parts like sheet piling and injections, could in theory be
removed. The cost of removing the structures are roughly estimated to at least 30 per cent of
the construction costs." (Memorial of Hungary, Vol. 5, Part II, Ann. 14, p. 434.)[p229]

11. Variant C provided for the construction of a weir complex at Cunovo, 10 kilometres up
from Dunakiliti (as originally planned), with a reservoir of reduced proportions behind, and
for a new section of dykes connecting the weir with the bypass canal and the right-side dyke
on Czechoslovak territory. Furthermore, the Danube had to be dammed; the Project had to be
put into operation, and some other ancillary structures at Cunovo were to be completed, such
as navigation locks and a hydroelectric power plant.

12. Hungary has pointed out that those are not the only differences between Variant C and the
1977 Treaty Project, because Variant C is not operated jointly and because Hungary was
never informed, even less consulted, by Czechoslovakia as to its specifications and all other
technical details, before and during its construction and putting into operation.

13. The Judgment follows those arguments. It remarks that

"the basic characteristic of the 1977 Treaty is, according to Article 1, to provide for the
construction of the Gabcikovo-Nagymaros System of Locks as a joint investment constituting
a single and indivisible operational system of works";
and that this

"element is equally reflected in Articles 8 and 10 of the Treaty providing for joint ownership
of the most important works of the Gabcikovo-Nagymaros project and for the operation of
this joint project as a co-ordinated single unit".

Then it concludes:

"By definition, all this could not be carried out by unilateral action. In spite of having a
certain external physical similarity with the original Project, Variant C thus differed sharply
from it in its legal characteristics." (See para. 77.)

14. The aforementioned conclusion overlooks the fact that Czechoslovakia did not exclude
Hungary from the Project; on the contrary, Hungary excluded itself of its own volition and
violated the obligations imposed upon it by the 1977 Treaty. Information, consultation, joint
operation and joint control only make sense if Hungary were willing to cooperate but, at that
time, Hungary would only consider the termination of the 1977 Treaty. Therefore, the existing
differences were the direct consequence of the attitude assumed by Hungary in respect of the
1977 Treaty, and should be considered consistent with the requirement set up by the
Judgment, because they are "within the limits of the treaty" (see para. 76).

15. In my opinion, as stated before, Czechoslovakia was entitled to proceed as it did. The
conduct of Czechoslovakia may not be characterized as an internationally wrongful act,
notwithstanding the differences between Variant C and the 1977 Treaty; Variant C can be
justified [p230] because of the right of Czechoslovakia to put into effect the 1977 Treaty as
best it could, when Hungary violated its treaty obligations.

16. Even though Variant C could be characterized as an internationally wrongful act,

Czechoslovakia was entitled to take countermeasures as a reaction to Hungary's violation of
its obligations under the 1977 Treaty in suspending and later abandoning the works at
Nagymaros and Gabcikovo. Article 30 of the International Law Commission's Draft on State
Responsibility, which codifies general international law, provides:

"The wrongfulness of an act of a State not in conformity with an obligation of that State
toward another State is precluded if the act constitutes a measure legitimate under
international law against that other State, in consequence of an internationally wrongful act of
that other State."

17. All the conditions required by Article 30 of the International Law Commission's Draft on
State Responsibility are met in the present case. Variant C was conceived as a provisional and
reversible solution (see para. 10 above), which may be explained as an attempt to induce
Hungary to comply with its 1977 Treaty obligations and it cannot be considered a
disproportionate reaction. Therefore, even assuming that the construction and the putting into
operation of Variant C could be characterized as an internationally wrongful act committed by
Czechoslovakia, its wrongfulness would be precluded because is was a legitimate
countermeasure.

18. The Judgment takes a different view and

"considers that Czechoslovakia, by unilaterally assuming control of a shared resource, and

thereby depriving Hungary of its right to an equitable and reasonable share of the natural
resources of the Danube — with the continuing effects of the diversion of these waters on the
ecology of the riparian area of the Szigetkoz — failed to respect the proportionality which is
required by international law" (see para. 85).

19. However, "the withdrawal of water from the Danube" is regulated by Article 14 of the
1977 Treaty. Not only Article 14 but also all the Treaty provisions that may support the
conduct of Czechoslovakia, continued by Slovakia, have to be applied to determine whether
or not it was lawful, since the Judgment acknowledges that the 1977 Treaty and related
instruments are in force between the parties.
20. In my opinion, it is not necessary to choose between the aforementioned grounds to justify
the action undertaken by Czechoslovakia, continued by Slovakia, because the juridical
consequences are the same, i.e., the building and putting into operation of Variant C was not
an interna-[p231] tionally wrongful act committed by Czechoslovakia; and Slovakia, as its
sole successor State, has not committed any internationally wrongful act in operating Variant
C to date.

II

21. A substantial number of Judges, myself among them, asked for a separate vote on each of
the two issues included in paragraph 2, point D, of the operative part of the Judgment.
However, the majority decided, severely curtailing freedom of expression, to force a single
vote on both questions, based upon obscure reasons which are supposed to be covered by the
confidentiality of the deliberations of the Court.

22. Since there was no other choice left, I reluctantly decided to vote in favour of paragraph 2,
point D, notwithstanding my opinion that the building and putting into operation of Variant C
was not an internationally wrongful act committed by Czechoslovakia; and that Slovakia, as
its sole successor State, has not committed any internationally wrongful act in maintaining its
operation to date. My decision can only be explained as a way out of the dilemma confronted
by me because of the determination adopted by the majority of the Court, in a very peculiar
way, and shall be understood within the context of the 1977 Treaty, and related instruments,
i.e. by applying Article 14, paragraph 3, of the 1977 Treaty, in the event "that the withdrawal
of water exceeds the quantities of water specified in the water balance of the approved joint
contractual plan". However, in principle, Slovakia shall not compensate Hungary on account
of the putting into operation of Variant C by Czechoslovakia and by its maintenance in
service by Slovakia, unless a manifest abuse of rights on its part is clearly evidenced.

23. In my opinion, paragraph 2, point A, of the operative part of the Judgment should not have
been included, because the succession of Slovakia to the 1977 Treaty was neither a question
submitted to the Court in the Special Agreement nor is it a legal consequence arising out of
the decision of the questions submitted by the Parties in its Article 2, paragraph 1.
Furthermore, the answer of the Court is incomplete since nothing is said with respect to the
"related instruments" to the 1977 Treaty; and it does not take into consideration the position
adopted by the dissenting judges who maintained that the 1977 Treaty was no longer in force.

(Signed) Gonzalo PARRA-ARANGUREN. [p232]

DISSENTING OPINION OF JUDGE SKUBISZEWSKI

1. While agreeing with the Court in all its other holdings, I am unable to concur in the broad
finding that Czechoslovakia was not entitled to put Variant C into operation from October
1992 (Judgment, para. 155, point 1 C). The finding is too general. In my view the Court
should have distinguished between, on the one hand, Czechoslovakia's right to take steps to
execute and operate certain works on its territory and, on the other, its responsibility towards
Hungary resulting from the diversion of most of the waters of the Danube into Czechoslovak
territory, especially in the period preceding the conclusion of the 1995 Agreement (Judgment,
para. 25).

2. In proposing to Czechoslovakia the revision of the Treaty, Hungary, for some time, did not
exclude the possibility of an arrangement that would maintain, in one form or another, the
System of Locks (Article 1 of the Treaty). But the subsequent abandonment of the works was
a clear indication of where Hungary was heading. Even when it first proposed a postponement
of the works it was aiming at abolishing the Project. That was the heart of the matter. On 22
May 1990, the Prime Minister of the newly democratic Hungary put it in a nutshell by
describing the whole Project as "a mistake" (Memorial of Hungary, Vol. 1, p. 64, para. 3.110).
Hungary wanted to extricate itself from that "mistake". This is the basic fact of the case. The
mass of scientific and technological information that has been submitted to the Court and the
maze of legal argumentation should not cause that basic fact to be lost: it was Hungary, and
Hungary alone, which, from a certain moment on, followed a policy of freeing itself from the
bonds of the Treaty. Czechoslovakia, on its part, insisted on the implementation of the Treaty,
though it was ready to adopt a flexible attitude with regard to some aspects of the operation of
the System of Locks, for example with regard to the limitation or exclusion of the peak power
operation mode or the objectively verified environmental needs.

3. This difference in the stance and the actions of the two Parties with regard to the Treaty
should not be blurred. To simply say that, in fact, the two contracting States (and not only one
of them, i.e., Hungary) conformed to rules other than those laid down by the Treaty does not
cor-[p233]respond to legal reality. In particular, chronology cannot be dismissed as irrelevant.
Hungarian doubts and reservations about and, finally, Hungary's withdrawal from the Project
have not only preceded Variant C, but constituted its cause. Without an earlier suspension and
abandonment of the works by Hungary there would have been no Variant C. Nor can it be
said that Variant C excluded Hungary from the Project. The fact is that Hungary excluded
itself, having lost all interest in the maintenance of the Project. Also, Czechoslovakia and
subsequently Slovakia were prepared to co-operate with Hungary in respect of Variant C
which they regarded as a provisional solution.

4. The documentation submitted in these proceedings does not support the view that the two
States actually displayed the same intention of withdrawing from the Treaty. Prior to and also
after the Hungarian declaration of termination, Czechoslovakia did not express any such
inten-tion. Variant C maintained some important aims of the joint investment: production of
energy, flood prevention, and improvement of navigation. Where it deviated from the Project,
it did not put any definitive bar to a return to the original concept of the Treaty. There was no
tacit consent to the extinction of the Treaty on the part of Czechoslovakia. That country no
longer exists, but Slovakia (as its successor) still postulates the implementation of the Treaty
(Judgment, para. 14).
5. When Czechoslovakia and Hungary were negotiating and concluding their Treaty, they
knew very well what they were doing. They made a conscious choice. A joint investment of
such proportions inevitably entails some changes in the territories of the countries involved,
including an impact on the environment. In particular, the two States were facing the
dichotomy of socio-economic development and preservation of nature. Articles 15, 19 and 20
show that the two States paid attention to environmental risks and were willing to meet them.
In the 1970s, when the Treaty was being negotiated, the state of knowledge was sufficient to
permit the two partners to assess the impact their Project would have on the various areas of
life, one of them being the environment. The number of studies was impressive indeed. The
progress of science and knowledge is constant; thus, with regard to such a project, that
progress becomes a reason for adaptation and, consequently, for entering into negotiations, no
matter how long and difficult.

6. By its unilateral rejection of the Project, Hungary has precluded itself from asserting that
the utilization of the hydraulic force of the Danube was dependent on the condition of a prior
agreement between it and Czechoslovakia (and subsequently Slovakia). For this is what the
Treaty was and is about: mutual regulation of the national competence of each riparian State,
in particular, to use the hydraulic force of the river. Mutual rights and obligations have been
created under the Treaty, but [p234] during the period 1989 to 1992 Hungary progressively
repudiated them. It thus created an estoppel situation for itself.

II

7. The withdrawal of Hungary from the Project left Czechoslovakia with the possibility of
doing on its territory what it was allowed to do by general law. In the circumstances of the
dispute submitted to the Court action based on general law does not derogate from the binding
force of the Treaty. The shift onto the plane of general law results from the Hungarian
rejection of the Project. There was, actually, no "single and indivisible operational system of
works" (Art. 1, para. 1, of the 1977 Treaty) in which first Czechoslovakia and subsequently
Slovakia could participate. The conduct of Hungary led to a factual situation which, as long as
it lasted, prevented the implementation of binding agreements. A full application of the Treaty
required bilateral action. Thus, for the time being, the treaty relationship of the two States
found itself in a state of abeyance or inactivity. As the objectives of the Treaty did not
disappear, a temporary solution would be based on general law and equity, until there was a
return to the bilateral enforcement of the Treaty. That is the essence of the concept of the
Czechoslovak "provisional solution", main-tained by Slovakia.

8. In the present case one should draw a distinction between, on the one hand, the "provisional
solution" which, as a whole, is lawful, especially under the existing circumstances (i.e., the
advanced stage of completion of the works on Czechoslovak territory at the beginning of the
1990s), and, on the other, one element of the implementation of that solution that calls for
redress and remedy; that element is the sharing of the waters of the Danube. It is not enough
to dismiss the Slovak arguments (that is, the principle of approximate application; the duty to
miti-gate damages; and, as a possibility, the plea of countermeasures, Judgment, paras. 75-
87). The situation is more complex. A legal evaluation of Variant C cannot be limited to the
Treaty alone. As a result of Hungarian action, the implementation of the Treaty became
paralysed. Czecho-slovakia responded by putting into effect its "provisional solution". In the
proceedings before the Court Slovakia's emphasis was on what I would term as the Treaty
approach. But Slovakia has also referred, though in a somewhat subsidiary manner, to general
law. Under that law, as applied by the Court, Slovakia bears responsibility for withholding
from Hungary that part of the Danube's waters to which the latter was entitled. By saying that
Hungary did not forfeit "its basic right to an equitable and reasonable sharing of the resources
of an international watercourse" the Court applies general law (Judgment, para. 78). The
Court likewise applies general law (cf. para. 85) when, in particular, it refers to the concept of
the "community of interest in a navigable river", as explained by the Permanent Court in the
case relating to the Terrilo-[p235] rial Jurisdiction of the International Commission of the
River Oder, (Judgment No. 16, 1929, P.C.I.J., Series A, No. 23, p. 27). The canon of an
equitable and reasonable utilization figures prominently in the recent United Nations
Convention on the Law of the Non-Navigational Uses of International Watercourses,
especially in its general principles (Arts. 5-10).

9. The Award in the case of Lake Lanoux between Spain and France states the law which is
relevant to the evaluation of Variant C, though for various reasons that case must be
distinguished from the case before the Court. In the Lake Lanoux case, the Arbitral Tribunal
considered the question whether the French development scheme for Lake Lanoux (involving
the diversion of waters) required, for its execution, a prior agreement between the two
Governments, in the absence of which the country proposing the scheme would not have
freedom of action to undertake the works (Reports of International Arbitral Awards (RIAA ),
Vol. XII, p. 306, para. 10; International Law Reports (ILR), Vol. 24, 1957, p. 127, para. 10).

10. The Tribunal said:

"In effect, in order to appreciate in its essence the necessity for prior agreement, one must
envisage the hypothesis in which the interested States cannot reach agreement. In such case, it
must be admitted that the State which is normally competent has lost its right to act alone as a
result of the unconditional and arbitrary opposition of another State. This amounts to
admitting a 'right of assent', a 'right of veto', which at the discretion of one State paralyses the
exercise of the territorial jurisdiction of another.

That is why international practice prefers to resort to less extreme solutions by confining itself
to obliging the States to seek, by preliminary negotiations, terms for an agreement, without
subordinating the exercise of their competences to the conclusion of such an agreement. Thus,
one speaks, although often inaccurately, of the 'obligation of negotiating an agreement'. In
reality, the engagements thus undertaken by States take very diverse forms and have a scope
which varies according to the manner in which/they are defined and according to the
procedures intended for their execution; but the reality of the obligations thus undertaken is
incontestable and sanctions can be applied in the event, for example, of an unjustified
breaking off of the discussions, abnormal delays, disregard of the agreed procedures,
systematic refusals to take into consideration adverse proposals or interests, and, more
generally, in cases of violation of the rules of good faith (Tacna-Arica Arbitration: Reports of
International Arbitral Awards, Vol. II, pp. 921 et seq.; Case of Railway Traffic between
Lithuania and Poland: Advisory Opinion, 1931, P.C.I.J., Series A/B, No. 42, pp. 108 et seq.)."
(RIAA, Vol. XII, p. 306, para. 11; ILR, Vol. 24, 1957, p. 128, para. 11; footnotes omitted.)
[p236]

Czechoslovakia has fulfilled its obligation to negotiate a revision of the Treaty. But a revision
is something different from the refusal to implement that Treaty. Faced with such a refusal on
the part of Hungary Czechoslovakia could act alone, without any prior consent by Hungary,
while respecting the latter's right to an equitable and reasonable share of the Danube's waters.
But in evaluating whether Czechoslovakia has respected that right one must not forget that the
said share has increased in 1995, and that the water appropriated by Czechoslovakia and
subsequently used by Slovakia does not serve Slovakia's interests alone, but also Hungary's.
The operation of Variant C improved navigation on the Danube and enhanced flood
protection.

11. In the Lake Lanoux case the Tribunal expressed its position on the right of each riparian
State to act unilaterally in the following terms:

"In fact, States are today perfectly conscious of the importance of the conflicting interests
brought into play by the industrial use of international rivers, and of the necessity to reconcile
them by mutual concessions. The only way to arrive at such compromises of interests is to
conclude agreements on an increasingly comprehensive basis. International practice reflects
the conviction that States ought to strive to conclude such agreements: there would thus
appear to be an obligation to accept in good faith all communications and contracts which
could, by a broad comparison of interests and by reciprocal good will, provide States with the
best conditions for concluding agreements. . . .
But international practice does not so far permit more than the following conclusion: the rule
that States may utilize the hydraulic power of international watercourses only on condition of
a prior agreement between the interested States cannot be established as a custom, even less
as a general principle of law. The history of the formulation of the multilateral Convention
signed at Geneva on December 9, 1923, relative to the Development of Hydraulic Power
Affecting More than One State, is very characteristic in this connection. The initial project
was based on the obligatory and paramount character of agreements whose purpose was to
harness the hydraulic forces of international watercourses. But this formulation was rejected,
and the Convention, in its final form, provides (Article I) that '[it] in no way alters the
freedom of each State, within the framework of international law, to carry out on its territory
all operations for the development of hydraulic power which it desires'; there is provided only
an obligation upon the interested signatory States to join in a common study of a development
programme; the execution of this programme is obligatory only for those States which have
formally subscribed to it." (RIAA, Vol. XII, p. 308, para. 13; ILR, Vol. 24, 1957, p. 129, para.
13; footnote omitted.) [p237]

I think that the Court would agree that this is an exact statement of general law. That law is
applicable in the present case. Czechoslovakia had the right to put the Gabcikovo complex
into operation. It also had the duty to respect Hungary's right to an equitable and reasonable
share of the waters of the Danube.
12. In rejecting, in the Lake Lanoux case, the necessity of a prior agreement between the
interested States on the utilization of the hydraulic power of international watercourses the
Tribunal referred to the "most general principles of international law" according to which:

"It is for each State to evaluate in a reasonable manner and in good faith the situations and the
rules which will involve it in controversies; its evaluation may be in contradiction with that of
another State; in that case, should a dispute arise the Parties normally seek to resolve it by
negotiation or, alternatively, by submitting to the authority of a third party; but one of them is
never obliged to suspend the exercise of its jurisdiction because of the dispute except when it
assumes an obligation to do so; by exercising its jurisdiction it takes the risk of seeing its
international responsibility called into question, if it is established that it did not act within the
limits of its rights." (RIAA, Vol. XII, p. 310, para. 16; ILR, Vol. 24, 1957, p. 132, para. 16.)

13. This seemed to be, mutatis mutandis, the position of Czechoslovakia. It could act, but it
had to respect certain rights of Hungary. In the Lake Lanoux case, the Tribunal said that,
carrying matters to extremes, the requirement of prior agreement

"would imply either the general paralysis of the exercise of State jurisdiction whenever there
is a dispute, or the submission of all disputes, of whatever nature, to. the authority of a third
party; international practice does not support either the one or the other of these
consequences" (loc. cit.).

14. Concerning the said possibility of a unilateral suspension of works the Tribunal added:

"Further, in order for negotiations to proceed in a favourable climate, the Parties must consent
to suspend the full exercise of their rights during the negotiations. It is normal that they should
enter into engagements to this effect. If these engagements were to bind them unconditionally
until the conclusion of an agreement, they would, by signing them, lose the very right to
negotiate; this cannot be presumed.

It is important to keep these considerations in mind when drawing legal conclusions from
diplomatic correspondence." (RIAA, Vol. XII, p. 311, para. 18; ILR, Vol. 24, 1957, p. 134,
para. 18.) [p238]

15. Finally, it is worthwhile to note the following statement of the Tribunal:

"France is entitled to exercise her rights; she cannot ignore Spanish interests.

Spain is entitled to demand that her rights be respected and that her interests be taken into
consideration.

As a matter of form, the upstream State has, procedurally, a right of initiative; it is not obliged
to associate the downstream State in the elaboration of its schemes. If, in the course of
discussions, the downstream State submits schemes to it, the upstream State must examine
them, but it has the right to give preference to the solution contained in its own scheme
provided that it takes into consideration in a reasonable manner the interests of the
downstream State." (RIAA, Vol. XII, p. 316, para. 23; ILR, Vol. 24, 1957, p. 140, para. 23.)

III

16. In paragraph 72 of its Judgment the Court makes clear that it is aware of the serious
problems with which Czechoslovakia was confronted as a result of Hungary's action. That is
another reason for distinguishing between various elements of Variant C. Having said what it
did the Court should have made a step further and applied equity as part of international law.
It would then have arrived at a holding that would have given more nuance to its decision.

17. In the case relating to the Diversion of Water from the Meuse Judge Hudson observed:

"It would seem to be an important principle of equity that where two parties have assumed an
identical or a reciprocal obligation, one party which is engaged in a continuing non-
performance of that obligation should not be permitted to take advantage of a similar non-
performance of that obligation by the other party.
…………………………………………………………………………………………………
……
The general principle is one of which an international tribunal should make a very sparing
application. It is certainly not to be thought that a complete fulfilment of all its obligations
under a treaty must be proved as a condition precedent to a State's appearing before an
international tribunal to seek an interpretation of that treaty. Yet, in a proper case, and with
scrupulous regard for the limitations which are necessary, a tribunal bound by international
law ought not to shrink from applying a principle of such obvious fair-ness." (P.C.I.J., Series
A/B, No. 70. Judgment, 1937, p. 77.)

18. The foregoing quotation does not mean that one may close one's eyes to the differences
between the Diversion of Water from the Meuse case and the present case. According to
Judge Hudson the two locks (i.e., the one operated by the Netherlands and the one operated by
Belgium) [p239] were in law and in fact in the same position. "This seems to call for an
application of the principle of equity stated above" (P.C.I. J., Series A/B, No. 70, Judgment,
1937, p. 78). But the more complex facts in the present case do not by themselves eliminate
the relevance of the learned judge's opinion.

19. The impossible situation in which Hungarian action put Czechoslovakia speaks strongly in
favour of the application of equitable principles by the Court in evaluating Variant C. For
"[ejquity as a legal concept is a direct emanation of the idea of justice. . . . [T]he legal concept
of equity is a general principle directly applicable as law" (Continental Shelf (Tunisia/Libyan
Arab Jamahiriya), Judgment, l.C.J. Reports 1982, p. 60, para. 71). The Court's "decisions
must by definition be just, and therefore in that sense equitable" (North Sea Continental Shelf
Judgment, I.C.J. Reports 1969, pp. 48-49, para. 88). "[A]n equitable solution derivefs] from
the applicable law" (Fisheries Jurisdiction, Merits, Judgment, I.C.J. Reports 1974, p. 33, para.
78; p. 202, para. 69). Both "the result to be achieved and the means to be applied to reach the
result" must be equitable. "It is, however, the result which is predominant; the principles are
subordinate to the goal" (Continental Shelf (Tunisia/ Libyan Arab Jamahiriya), Judgment,
I.C.J. Reports ¡982, p. 59, para. 70).

20. In its resolution of 1961 on the utilization of non-maritime international waters the
Institute of International Law has stated (Art. 3):

"If the States are in disagreement over the scope of their rights of utilization [of the said
waters], settlement will take place on the basis of equity, taking particular account of their
respective needs, as well as of other pertinent circumstances." (Annuaire de ¡'Instituí de droií
iníernaíional, 1961, Vol. II, p. 382.)

21. The degree to which Czechoslovakia has implemented the Treaty has reached such
proportions that it would be both unreasonable and harmful to stop the completion of certain
works and to postpone indefinitely the operation of the bypass canal, the Gabcikovo
hydroelectric power plant, navigation locks and appurtenances thereto, in so far as that
operation was possible without Hungarian co-operation or participation. To find, as the Court
does, that such operation is unlawful overlooks the considerations of equity. At the same time
Hungary's right under general international law to an equitable and reasonable sharing of the
waters of the Danube had to be preserved notwithstanding its repudiation of the Project and
the Treaty.

IV

22. A State that concluded a treaty with another State providing for the execution of a project
like Gabcikovo-Nagymaros cannot, when that project is near completion, simply say that all
should be cancelled and the [p240] only remaining problem is compensation. This is a
situation where, especially under equitable principles, the solution must go beyond mere
pecuniary compensation. The Court has found that the refusal by Hungary to implement the
Treaty was unlawful. By breaching the Treaty, Hungary could not deprive Czechoslovakia
and subsequently Slovakia of all the benefits of the Treaty and reduce their rights to that of
compensation. The advanced stage of the work on the Project made some performance
imperative in order to avoid harm: Czechoslovakia and Slovakia had the right to expect that
certain parts of the Project would become operational.

23. Thus, pecuniary compensation could not, in the present case, wipe out even some, not to
speak of all, of the consequences of the abandonment of the Project by Hungary. How could
an indemnity compensate for the absence of flood protection, improvement of navigation and
production of electricity? The attainment of these objectives of the 1977 Treaty was legitimate
not only under the Treaty but also under general law and equity. The benefits could in no way
be replaced and compensated by the payment of a sum of money. Certain works had to be
established and it was vital that they be made operational. For the question here is not one of
damages for loss sustained, but the creation of a new system of use and utilization of the
water.
24. Once a court, whether international or municipal, has found that a duty established by a
rule of international law has been breached, the subject to which the act is imputable must
make adequate reparation. The finding in point 2 D of the operative paragraph is the
consequence of the holdings in point 1. Absence of congruence between the vote on one or
more of the findings in point 1 and the vote on point 2 D should be explained in order that any
implication of an uncertainty regarding the foregoing principle on reparation may be
eliminated.

25. The formulation of the finding in point 1 C of the operative paragraph does not correspond
to the possibility of different evaluations concerning the various elements of the "provisional
solution". There is equally no reflection of that possibility in the formulation of the finding in
point 2 D. Indeed, the terms of that point made the position of those judges who voted against
point 1 C quite difficult. The same applies to point 2 D when a judge does not agree with all
the findings in point 1, though I think that there is a way out of this difficulty.

26. It is on the basis of the position taken in this dissenting opinion that I have voted in favour
of the finding in point 2 D. However, there is a further reason which made it possible for me
to accept that finding. That reason is linked to the task of the Court under Article 2, paragraph
2, of the Special Agreement and the ensuing negotiations of the [p241] Parties on the
modalities of the execution of the Judgment (Art. 5, para. 2). My understanding of point 2 D
of the operative paragraph is that the enforcement of responsibility and the obligation to
compensate, though elaborated upon by the Court in the part of the Judgment devoted to
Article 2, paragraph 2, of the Special Agreement (paras. 148151) need not be a primary factor
in the negotiations on the future of the Gabcikovo-Nagymaros Project. It should be noted that
the said finding refers to the issue of compensation in rather general terms. At the same time
the Court gives its support to what I would describe as the "zero option" (para. 153 of the
Judgment). In my view the underlying message of point 2 D to the negotiating Governments
is that, notwithstanding their legal claims and counterclaims for compensation, they should
seek — and find — a common solution.

(Signed) Krzysztof SKUBISZEWSKI.