INTERNATIONAL ENVIRONMENTAL LAW REPORTS Volume 5 INTERNATIONAL ENVIRONMENTAL LAW IN INTERNATIONAL TRIBUNALS Edited by KAREN LEE Laulerpacht Research CenLre for International Law f University of Cambridge Series editor CAIRO A. R. ROBB General editors DANIEL BETHLEHEM JAMES CRAWFORD PHILIPPE SANDS | CAMBRIDGE UNIVERSITY PRESS Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia)1 International Court of Justice, The Hague 5 February 1997 (Bedjaoui, President; Schwebe", Vice-President; Oda, Guillaume, Weeramantry, Ranjeva. Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin and Parra-Aranguren Judges; Skubiszewski Judge ad hoc) 25 September 1997 (Schwebel, President; Weeramantry, Vice-President; Oda. Bedjaoui, Guilkume, Ranjeva, Herczegh, Shi. Fleischhauer. Koroma, Vereshchetin, Parra-Aranguren, Kooijmans and Rezek, Judges; Skubiszewski, Judge ad hoc) Waters - rivers -joint investment project for the production ofhydroelectricity, improvement of navigation andjhod protection - effects on the environment -emergence of new norms of environmental law - sustainable development -equitable and reasonable share of the resources of an international watercourse Responsibility and liability - state of necessity as a ground for precluding wrongfulness - Article 33 of the Draft Articles on State Responsibility -essential interest - circumstances constituting an essential interest - whether safeguarding the ecological balance an essential interest of all States - grave and imminent peril - act having to constitute the only means of safeguarding the interest threatened -party having contributed to the occurrence oj the state of necessity Treaties - treaty between Hungary and Czechoslovakia, Í6 September 1977 -termination-fimdamentalckange of circumstances -progress of environmental Hungary was represented by HB Mr György StW* HE Mr Denes Tomaj. Mr Jam« Cnwford, Mr Pierre-Marie Dupuy. Mr Alexandre Kiss, Mr Lásziů Val«, Mr Bddttsar Nagy and Mr Philippe Sands The Slovak Republic was represented by HB Dr Peter Tomka. Of Václav Mikulka Mt Derek W. Bowett. Mr Stephen C. McCaffrey. Mr Alain Pellet, Mr Waller D. Silver. Sir ArtMU Watts, KCMG, QC, Mr Samuel S. Wordsworth. Mr Igor Mucha. Mr Karra Uenkateswara Rao ana Mr Jens Christian Refsgaard. This article was adapted by the International Law Commission it) substantially the same terms . . . __ r i . .- ._____r.__.____-:^1;„. AŕCr„DD ŕ^.-Ttiípi-t. iti.iiwllv WfOn^+tll ActS. knowledge - development of new norms of international environmental law -changes not unforeseen - treaty allowing Parties to take account of and apply new developments - whether radical transformation of Treaty obligations Compliance-international environmental law norms - Treaty-based obligation to apply evolving environmental standards to protect water quality, nature and fishing interests Damage and compensation - ex injuria jus non oritur - objectives of Treaty -whether purpose and intention of parties in concluding Treaty prevail over literal interpretation - Treaty obligations overtaken by events - recognition of positions adopted by thŕ parties after conclusion of Treaty - good faith negotiations -joint regime - reparation for acts committed by both Parties -intersecting wrongs - iettlťmetit of accounts for the construction summary The facts On 16 September 1977, Hungary and Czechoslovakia entered into a treaty ('the Treaty') concerning the construction and operation of the Gabčíkovo-Nagymaros System of Locks ('the Project*). The Project was an integrated joint investment aimed at the production of hydroelcctricity, the improvement of navigation and flood protection. The Parties were to share the financing, construction and operation of the works, and to benefit in equal measure from the power generated. The Treaty provided for the building of two series of locks, one upstream at Gabčíkovo in Czechoslovak territory, and the other downstream at Nagymaros in Hungarian territory, designed to constitute a 'single and indivisible system of works'. The upstream section principally comprised a reservoir above the weir at Dunakiliti (on Hungarian territory) and a bypass canal leading to the Gabčíkovo hydroelectric power plant. Downstream at Nagymaros, a further series of locks and a smaller hydroelectric plant were planned. The technical specifications of the system and the preliminary operating and maintenance rules were set out in a related instrument known as the 'Joint Contractual Plan*. Articles 15, 19 and 20 of the Treaty obliged the Parties to take appropriate measures in connection with the construction and operation of the locks to ensure the protection of water quality, nature and fishing interests. Work on the Project began in 1978. By early 1989, the Gabčíkovo sector was well advanced, but the construction of the Nagymaros sector was only in a preliminary phase. The profoundpolitical and economic changes which occurred at this time throughout Central F.urope engendered in public opinion and scientific circles a growing apprehension as to the economic and environmental viability of the Proiect. On 13 May 1989, the Hungarian Government decided to suspend works at Nagymaros pending completion of various studies. On 21 July 1989, the Hungarian Government extended the suspension of the works at Nagymaros, and suspended the works at Dimakiliti. On 27 October 1989,1 lungary decided to abandon works at Nagymaros altogether and to maintain the status quo at Dunakiliti. Czechoslovakia protested against this action, and the Parties began negotiations cowards an agreed modification of the Project. Hungary proposed a draft treaty to exclude peak power operation (the mode of maximum power generation, but with greater potential ecological impact) of the Gabčíkovo power plant and the abandonment of the Nagymaros dam. Czechoslovakia expressed a willingness to consider new technical, operational and ecological guarantees for the Project if Hungary was prepared to commence work at Dunakiliti with a view to putting the Gabčíkovo sector into operation on a modified timetable. Czechoslovakia informed Hungary that it would otherwise be compelled to take unilateral measures to put the Gabčíkovo sector into operation without Hungarian cooperation. No agreement was reached. In November 1991, Czechoslovakia commenced construction of what it termed the 'provisional solution'. 'Variant C, as this unilateral option was known, involved the construction of a new dam upstream of Dunakiliti exclusively on Czechoslovak territory at Cunovo. Discussions between the Parties continued to no avail: Hungary made clear its view that Variant C was a contravention of the 1977 Treaty; Czechoslovakia insisted on the implementation of Variant C as a condition for further negotiation. On 19 May 1992, the Hungarian Government transmitted to the Czechoslovak Government a Note Verbale terminating the 1977 Treaty and its related instruments with effect from 25 May 1992. Work on Variant C was largely completed on 27 October 1992, with the diversion of SO to 90 per cent of the waters of the Danube into the Gabčíkovo bypass canal. On 1 January 1993, Slovakia became an independent State as a successor State to Czechoslovakia. On 7 April 1993, Hungary and Slovakia concluded 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 Gabčíkovo- Nagymaros Project'. Article 2 of the Special Agreement provided that: rt"he text of the Special Afcreemrni í extracted) tan be found at pp. 2HCÍ 2- 1. The Court is requested to decide on the basis of the Treaty and rules and principles ofgenera! international law, as »ell as such other treaties as the Court may find applicable, (a) whether the Republic of Hungary was entitled to suspend and subsequently abandon, in 1939, the works on the Nagymaros Project and on the part of the Gabčíkovo Project for which the Treaty attributed responsibility to the Republic of Hungary; (b) whether the Czech and Slovak Federal Republic was entided 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 WorkingC-roup oflnde-pendent Expertsofthe Commission ofthe European Communities, the Republic of Hungary and the Czech and Slovak Federal Republic dated 23 November 1992 (damming up ofthe Danube at river kilometre 1SJI.7 on Czechoslovak territory and resulting consequences on water and navigation course); (c) what are the legal effects ofthe notification, on 19 May 1992, ofthe termination ofthe 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. Order of S February 1997 The Court decided to hold a visit to a number of locations along the Danube. The visit took place between 1 and 4 April 1997 in accordance with arrangements agTeed between the Parties. Judgment of 25 September 1997 Held by the International Court of Justice (1) With regard to Article 2, paragraph l, ofthe Special Agreement (byfourteen votes to one) (A) That Hungary was not entitled to suspend and subsequently abandon, in 1989, the works on the Nagymaros Project and on the part ofthe Gabčíkovo Project for which the Treaty and related instruments attributed responsibility to it; (by nine votes to six) (B) That Czechoslovakia was entitled to proceed, in November 1991, to the 'provisional solution as described in the terms ofthe Special Agreement; (by ten votes to five) (C) That Czechoslovakia was not entitled to put into operation, from October 1992, this 'provisional solution'; firy elevett rotes to Jour) (D) That the notification, on 19 May 1992, of the termination ofthe Treaty and related instruments by Hungary did not have the legal effect of terminating them. (2) With regard to Article 2, paragraph 2, ofthe Special Agreement (by twelve votes to three) (A) That Slovakia, as successor to Czechoslo- Vilki.! hfi'Smp naí-fiŕ frn tk** T^ů^t-u *** £~s__l~ t r--------.___mni. 276 International Environmental law Reports SIELR (by thirteen votes to two) (B) 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, in accordance with such modalities as they might agree upon; (by thirteen votes to two) (C) That, unless the Parties otherwise agreed a joint operational regime must be established in accordance with the Treaty; (by twelve votes to three) (D) That, unless the Parties otherwise agreed, Hungary should 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 that Slovakia should compensate Hungary for the damage it had sustained on account of the operation of the 'provisional solution' by Czechoslovakia and its maintenance in service by Slovakia; (by thirteen votes to two) (E) 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 and related instruments, taking due account of measures taken by the Parties in application of points 2(B) and (C) of the Judgment. Í. Article 2, paragraph 1, of the Special Agreement (1) The Parties both accepted that the 1977 Treaty and related instruments were validly concluded and duly in force throughout the operative period. The texts did not envisage the possibility of unilateral suspension or abandonment of the work provided for. (2) The Vienna Convention on the Law of Treaties was not directly applicable as both States ratified the Convention only after the conclusion oř the 1977 Treaty. Nonetheless, the provisions of the Convention concerning the termination and the suspension of the operation of treaties set forth in Articles 60 to 62 were a codification of existing customary law. (3) 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'. By invoking a 'state of necessity' to justify its conduct, Hungary had placed itself within the ambit of the law of State responsibility, implying that, in the absence of necessity, its conduct would be unlawful. Hungary had also acknowledged that a state of necessity would not exempt it from a duty to compensate. (4) Necessity, however, could only be invoked on an exceptional basis. All of the strict conditions set forth in Article 33 of the Draft Articles on Gabčíkovo-Nagymaros Project 277 State Responsibility had to be satisfied. The State concerned was not the sole judge of whether those conditions had been met. (5) The characterisation of an 'essential interest' was to be assessed in the light of each particular case, and was not restricted to matters affecting the 'existence' of the State. Safeguarding the ecological balance had come to be considered an essential interest of all States. Thus the concerns expressed by Hungary for its natural environment in the region affected by the Gabčíkovo-Nagymaros Project did relate to an essential interest of the State. (6) On several occasions in 1989, Hungary had expressed 'uncertainties' as to the ecological impact of the Gabčíkovo-Nagymaros Project and called for new scientific studies. However, a state of necessity could not exist without a 'peril' duly established at the relevant time period. Such a requirement had to be imminent, not merely possible. It would have been difficult to determine in light of the scientific record in 1989 that the alleged peril was sufficiently certain and therefore 'imminent'. (7) Hungary could also have resorted to other means to respond to the dangers it apprehended. Within the framework of the original Project, Hungary was in a position to control, at least partially, the distribution of water within the system, and could construct the works needed to regulate flows along the old bed of the Danube and the side-arms. Moreover, the Treaty provided for the possibility that each of the Parties might withdraw quantities of water exceeding those specified in the Joint Contractual Plan in exchange for a corresponding reduction of the share of electric power. (8) Hungary was thus not entitled to suspend, and subsequently to abandon, the works on the Nagymaros Project and on the part of the Gabčíkovo Project for which the 1977 Treaty and related instruments attributed responsibility to it. (9) In reaction to Hungary's suspension and abandonment of works and its refusal to resume performance of its obligations under the Treaty, Czechoslovakia had decided to put the Gabčíkovo system into operation unilaterally, under its exclusive control and for its own benefit. To justify those actions, Slovakia had invoked what it described as the 'principle of approximate application'. It was not necessary to determine the existence of such a principle because, even if such a principle existed, it could only be employed within the limits of the treaty in question. Despite having a certain external physical similarity to the original Project, Variant C differed sharply from it in its legal characteristics. 278 International Environmental Law Reports 5 IELR (10) The 1977 Treaty provided for the construction of the Gabčíkovo-Nagymaros Barrage System Project as a joint investment consisting of a single and indivisible operational system of works, jointly owned and operated. By definition, this could not be carried out by unilateral action. In practice, the operation of Variant C had led Czechoslovakia to appropriate between 80 and 90 per cent of the waters of a shared international watercourse and international boundary river. Hungary, by the violation of its legal obligations under the Treaty, had not forfeited its basic right to an equitable and reasonable share of the resource. In putting Variant C into operation, Czechoslovakia had committed an internationally wrongful act. (11) However, a wrongful act or offence was frequently preceded by preparatory actions which were not to be confused with the act or offence itself. In so far as Czechoslovakia had confined itself to the execution on its own territory of the works necessary for the implementation of Variant C, which could have been abandoned if an agreement had been reached between the parties and had not therefore predetermined the final decision to be taken, it had not committed a wrongful act. (12) As the putting into operation of Variant C constituted an internationally wrongful act, it was not necessary to examine the issue of the duty to mitigate invoked by Slovakia. (13) Slovakia had argued that 'Variant C could be presented as a justified countermeasure to Hungary's illegal acts.' The diversion of the Danube carried out by Czechoslovakia was not a lawful countermeasure because it was not proportionate. (14) 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 its pleadings, Hungary presented five arguments in support of the lawfulness of its notification of termination. These were: (i) the existence of a state of necessity; (ii) the impossibility of performance of the Treaty; (iii) the occurrence of a fundamental change of circumstances; (iv) the material breach of the Treaty by Czechoslovakia; and (v) the development of new norms of international environmental law. (15) The 1977 Treaty did not contain any provision regarding its termination or the possibility of denunciation or withdrawal. On the contrary, the Treaty established a long-standing and durable regime of joint investment and joint operation. Consequently, the Treaty could be terminated only on the limited grounds enumerated in Articles 60 Gabakovo-Nagymaros Project 279 to 62 of the Vienna Convention which were declaratory of customary international law. (16) Necessity was not a ground for the termination of a treaty. It might only be invoked to negate the responsibility of a State that had failed to implement a treaty. The treaty might be ineffective as long as the condition of necessity continued to exist. The treaty nevertheless continued to exist, even if dormant, unless the parties agreed to terminate it. In the absence of such agreement, as soon as the state of necessity ceased to exist, the duty to comply with treaty obligations revived. (17) Article 61, paragraph 1, of the Vienna Convention required '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. Hungary contended that the essential object of the Treaty - a single and indivisible operational system of works, jointly owned and operated - had permanently disappeared and that the Treaty had become impossible to perform. The 1977 Treaty, however, provided a means to make required readjustments between economic and ecological imperatives. Thus the 'object', even if understood to embrace a legal regime, had not definitively ceased to exist. If the joint exploitation of the investment was no longer possible, Hungary was itself responsible. Article 61, paragraph 2, of the Vienna Convention precluded the invocation of impossibility by a party when the impossibility of performance resulted from that party's own breach. (18) Hungary further invoked a fundamental change of circumstances brought about by profound political and economic changes, and the progress of environmental knowledge and the development of new norms and prescriptions of international environmental law. 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. The prevalent political conditions were not so closely linked to the object and purpose of the Treaty, nor the estimated profitability so fixed, that changes in these matters had radically altered the extent of the obligations to be performed. New developments in the state of environmental knowledge and of environmental law could not have been completely unforeseen. Articles 15, 19 and 20 of the Treaty allowed the Parties to take account of such developments and apply them when implementing those provisions. (19) The changed circumstances were not of such a nature that their effect would be radically to transform the extent of the obligations still 280 International Environmental Law Reports 5 IEL.R to be performed to accomplish the Project. Moreover, a fundamental change of circumstances must have been unforeseen, and 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 stability of treaty relations required that the plea of fundamental change of circumstances be applied only in exceptional cases. (20) Articles 15, 19 and 20 of the Treaty obliged the Parties jointly and on a continuous basis to take appropriate measures necessary for the protection of water quality, nature and fishing interests. Hungary contended that Czechoslovakia had violated these articles by refusing to enter into negotiations in order to adapt the Project to new scientific and legal developments regarding the environment. In this case, both Parties could be said to have contributed to the creation of a situation which was not conducive to the conduct of fruitful negotiations. Only a material breach of a treaty by a State party might be relied upon by another party as a ground for termination. The violation of other rules of general international law might justify the taking of certain measures, including countermeasures, by the injured State, but did not constitute a ground for termination under the law of treaties. (21) Hungary's principal argument for invoking a material breach of the Treaty was the construction and putting into operation of Variant C. Czechoslovakia had violated the Treaty only when it had diverted the waters of the Danube in October 1992. The notification of termination by Hungary on 19 May 1992 had predated that diversion. Hungary had not yet suffered injury, and consequently was not entitled to invoke any such breach as a ground for termination. Moreover, Czechoslovakia had committed the internationally wrongful act as a result of Hungary's own prior wrongful conduct. Hungary had thus prejudiced its right to terminate the Treaty. (22) Hungary claimed that it was entitled to terminate the Treaty, because of new requirements ot international law for the protection of the environment which precluded performance of the Treaty. Neither of the Parties contended that new peremptory norms of environmental law had emerged since the conclusion of the 1977 Treaty. The obligations in Articles 15, 19 and 20 entailed a joint responsibility to adapt the Treaty to emerging norms through a process of good faith consultation and negotiation. (23) Hungary maintained that by their conduct both Parties had repudiated the Treaty and that a bilateral treaty repudiated by both parties Gabčikovo-Nagymaros Project 281 could not survive. The reciprocal wrongful conduct of Hungary and Czechoslovakia did not justify the termination of the Treaty. 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 had implemented in considerable measure and at great cost over a period of years, might be unilaterally set aside on grounds of reciprocal non-compliance. II. Article 2, paragraph 2, of the Special Agreement (1) The content of the 1977 Treaty indicated that it must be regarded as establishing a territorial regime within the meaning of Article 12 of the 1978 Vienna Convention on the Succession of States. It created rights and obligations 'attaching to' the parts of the Danube to which it related; thus the Treaty could not be affected by a succession of States. The Treaty became binding upon Slovakia on 1 January 1993. (2) The 1977 Treaty was still in force and consequently governed the relationship between the Parties. That relationship was also determined by the rules of other relevant conventions to which the two States were party, by the rules of general international law and, in this particular case, by the rules of State responsibility; but it was governed, above all, by the applicable rules of the 1977 Treaty as a lex specialis. (3) At the same time, it was essential that the factual situation as it had developed since 1989 be placed within the context of the preserved and developing treaty relationship in order to achieve the object and purpose in so far as that was feasible. What might have been a correct application of the law in 1989 or 1992 could be a miscarriage of justice if prescribed in 1997. Variant C had been in operation for nearly five years in a run-of-the-river mode. The weir at Nagymaros had not been built, and with the effective discarding by both Parties of peak power operation, there was no longer any point in building it. (4) The other objectives of the Treaty - navigability, flood control, ice control and protection of the environment - could adequately be served by the existing structures. The 1977 Treaty did not lay down a rigid system. In practice, the Parties, in adopting their subsequent positions, had acknowledged that the explicit terms of the Treaty were negotiable. (5) The Parties were under a legal obligation, during the negotiations to be held by virtue of Article 5 of the Special Agreement, to consider in what way the multiple objectives of the 1977 Treaty could best be served. The Parties were obliged by Articles 15 and 19 of the Treaty to assess 282 International Environmental Law Reports 5 IELR the impact of the Gabčíkovo power plant on the environment by current standards of evaluating environmental risks. (6) The purpose of the Treaty and the intentions of the Parties in concluding it should prevail over its literal interpretation. When bilateral negotiations without preconditions were held to give effect to the Judgment, a readiness to accept the assistance and expertise of a third party would evidence the good faith of the Parties. (7) The joint regime provided for in the Treaty should be restored. The works at Cunovo should become jointly operated in view of their pivotal role in the operation of what remained of the Project and for the water-management regime. Variant C, which operated in a manner incompatible with the Treaty, should be made to conform to it so as to accommodate both the economic operation of the system of electricity generation and the satisfaction of essential environmental concerns. By associating Hungary, on an equal footing, in its operation, management and benefits, Variant C would be transformed from a de facto status into a treaty-based regime reflecting in an optimal way the concept of common utilisation of shared water resources. (8) Reparation must, as far as possible, wipe out all the consequences of the illegal act (Factory at Chorzów, POJ, Series A, No. 17, p. 47). In the present case, this would be achieved if the Parties resumed their cooperation in the utilisation of the shared water resources. Both Parties had committed internationally wrongful acts giving rise to damage. Consequently Hungary and Slovakia were each under an obligation to pay compensation and each entitled to obtain compensation. Given the intersecting wrongs of both Parties, the issue of compensation could satisfactorily be resolved if each of the Parties were to renounce or cancel all financial claims and counter-claims. Declaration of President Schwebel The construction of Variant C was inseparable from its being put into operation. Hungary's position as the Party initially in breach did not deprive it of the right to terminate the Treaty in response to Czechoslovakia's material breach. Declaration of Judge Rezek The 1977 Treaty was no longer in force as the Hungarian notification of 19 May 1992 constituted the formal act of termination of a treaty both Parties had already repudiated. The consequences were similar to those inferred by the majority. Separate Opinion of Vice-President Weeramantry (1) The Court had to strike a balance between environmental and developmental 4 4 Ann Dig 268. Gabäkovo-Nagymaros Project ,«3 considerations in light of the emerging concept of sustainable development. From the early 1970s, there had been widespread recognition of the concept in a broad range of international and regional instruments, and in State practice. This case presented an opportunity to strengthen the concept, taking a multi-disciplinary approach to draw upon the world's diversity of cultures and traditional legal systems. Sustainable development could be seen as one of the most ancient of ideas of human heritage, and not merely a principle of modern international law. (2) A recognition of the principle of contemporaneity in the application of environmental norms applied to the joint supervisory regime envisaged in the Court's Judgment, requiring the Parties to take into consideration the emergence of new environmental standards in the application of the Treaty. (3) In entering into the 1977 Treaty, Hungary had taken a considered decision, despite warnings of the possible environmental dangers, and had continued to treat the Treaty as valid for nearly twelve years. In reliance, Czechoslovakia had devoted substantial resources to the Project. Present in this sequence of events were the ingredients of a legally binding estoppel. However, in cases involving potential environmental damage of a far-reaching and irreversible nature, the limitations of inter partes adversarial procedure might not be appropriate to determine obligations of an erga omnes character. Separate Opinion of Judge Bedjaoui (1) The essential basis for the interpretation of a treaty remained the 'fixed reference' to contemporary international law at the time of its conclusion. The 'mobile reference' to the law which subsequently developed was only applicable in exceptional cases. The definition of'environment' was essentially static, unlike the evolutionary concept of the 'sacred trust' interpreted in the Namibia case. (2) An interpretation of a treaty which would amount to substituting a completely different law to the one governing at the time of its conclusion would be a distorted revision. A State incurred specific obligations contained in a body of law as it existed on the conclusion of the treaty and in no wise incurred evolutionary and indeterminate duties. (3) In the present case, subsequent law relating to the environment and international watercourses might be applied advisedly on the basis of Articles 15, 19 and 20 for an 'evolutionary interpretation' of the 1977 Treaty. 5 49 ILR 2. 284 International Environmental Law Reports UELR (4) The 1977 Treaty had the threefold characteristic of being (i) a territorial treaty; (ii) a treaty to which Slovakia had succeeded; and (iü) a treaty which was still in force. (5) There was no theory of'approximate application' in international law. If accepted, it would be a detriment to legal certainty and would signal the end of the cardinal principle pacta sunt servanda. The theory provided no reliable criterion for measuring a tolerable degree of'approximation', and lacked the basic condition of the consent of the other State. (6) Variant C substantially differed in concept and design from the initial Project. It fell into one of the categories of breaches termed 'continuing', 'composite' or 'complex', each phase of which was unlawful. The unlawful nature of Variant C, from the commencement of its construction to the diversion of the river, could only be divisible if it had been shown that no phase of its implementation, apart from the diversion, prejudiced Hungary's rights and interests. It did not qualify as a countermeasure. It was a definitive, irreversible breach of the Treaty. (7) The intersecting violations committed by both Parties gave rise to two effectivités. The first was that Variant C was nearly complete, and represented a partial application of the Treaty. The second was that Hungary had abandoned work on all fronts and decided not to build the Nagymaros dam. These effectivités had been mutually recognised by the Parties, and provided signals in the attempt to find appropriate solutions. (8) The 1977 Treaty had largely been stripped of its material content, but remained a formal instrument, ready to accommodate new commitments by the Parties. In taking into consideration the effectivités, the Court had no intention to legitimise the unlawful facts established for which the Parties must assume responsibility. This made it possible to salvage Articles 15, 19 and 20, which would provide a basis for renegotiation. This would also make possible the conservation of the general philosophy and major principles of the Treaty. (9) The Parties must negotiate again in good faith conditions to restore Hungary to its status as a partner in the use of the water and co-owner of the works. Separate Opinion of Judge Koroma (1) Variant C was a genuine application of the Treaty inasmuch as it constituted the minimum modification of the original Project necessary to realise its aims and objectives. Czechoslovakia would otherwise have been stranded with a largely finished but inoperative system. Gabčíkovo-Nagymaros Project 285 (2) Hungary had agreed within the context of the Project to the diversion of the Danube, modifying its entitlement to an equitable and reasonable share of the water of the Danube. (3) The finding of an intersection of wrongs and a reciprocal obligation of reparation suggested that the Court found the wrongful conduct of the Parties to be equivalent. The operation of Variant C was a genuine attempt by an injured party to secure the achievement of the agreed objectives of the Treaty in ways consistent with the Treaty, international law and equity. Dissenting Opinion of Judge Oda (1) Hungary's claim of ecological necessity was ill-founded as the Project was prepared and designed with full consideration of its potential environmental impact. Any subsequent impact assessment could not justify its total abandonment. (2) Czechoslovakia was entitled to proceed with Variant C, both its construction and the diversion of the Danube, as an alternative means of implementing the Project in the face of Hungary's wrongful act. The cost of its construction should be borne in part by Hungary, in exchange for co-ownership. However, if the operation of Variant C had led to tangible damage to Hungary, Slovakia bore responsibility. (3) Negotiations between the Parties should be based on the understanding that Czechoslovakia was entitled to proceed to the implementation of Variant C and that it would in future form part of the Joint Contractual Plan. Its mode of operation should be defined to avoid peak mode and ensure an equitable share of the waters. The Parties should continue the environmental assessment of the region and search out technical remedies to prevent environmental damage. Dissenting Opinion of Judge Ranjeva (1) The intersecting nature of the wrongs had a bearing both on the declaratory part and on the prescriptive part of the Judgment. The Court should have considered whether the Hungarian wrong caused a sufficiently proven risk which forced the construction and putting into operation of Variant C. (2) The distinction between 'proceeding to the provisional solution' and its 'putting into operation' was artificial as the two elements were part of a single, continuing act. The fact of substituting a national project in place of a joint international project was a serious breach of the Treaty. Limiting the sanction to the factual consequences of the breach itself represented a precedent with disturbing implications for treaty relations and the integrity of the rule pacta sunt servanda. Dissenting Opinion of Judge Herczegh (1) The Project was an audacious scheme in scale, design and mode of operation, criticised not 286 International Environmental Ijxw Reports SIELR only by the Hungarian party but also by the Czechoslovak leaders as obsolete and contrary to nature. It was regrettable that the Court acknowledged the need to apply developing environmental norms and standards to new and continuing activities only in the prescriptive part of its Judgment. (2) 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. There was no legal obstacle to prevent the Project from being adapted to a less dangerous mode of operation. (3) In suspending the construction of the Nagymaros dam, Hungary had acted under a state of necessity to safeguard an essential interest - the provision of drinking water for the 2 million inhabitants of the Hungarian capital - against a grave and imminent peril. (4) The unilateral diversion of the Danube and its exclusive utilisation by Slovakia were a breach of a provision essential to the accomplishment of the object and purpose of the Treaty, whereas the conduct of Hungary simply delayed but did not preclude the commissioning of the power plant. Czechoslovakia had acted unlawfully when it embarked on the construction of the works necessary for the diversion. (5) Since Variant C, from its commencement, constituted a grave breach of the Treaty, Hungary was entitled to terminate the Treaty. The Treaty did not survive the joint effect of the diversion of the Danube and Hungary's notification of its termination. (6) The termination of the Treaty would not have left the Parties in a legal vacuum. The relationship was determined by rules of general international law and other treaties and conventions in force between the Parties. These were sufficient to ensure an equitable and reasonable sharing of the Danube waters. Dissenting Opinion of Judge Fleischhauer (1) Hungary validly terminated the 1977 Treaty by its notification of termination of 19 May 1992. The putting into operation of Variant C constituted a continuing wrongful act 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 1992. Recourse to Variant C was neither automatic nor the only possible reaction to Hungary's violations of the Treaty. The fact that Hungary violated the Treaty first did not deprive it of the right to terminate the same Treaty in reaction to its later violation by Czechoslovakia. Gabčíkovo-Nagymaros Project 287 (2) After the valid termination of the Treaty, the Parties were released from any further obligation to perform, and the situation was governed by general international law and by those treaties that remain in force between the Parties. There was no legal obligation for Slovakia to provide for joint operation of Variant C or for sharing of profits. By reason of its past behaviour, Hungary was not entitled to restoration of the full flow of the Danube, but a water-management regime must be established that took account of Hungary's ecological needs. Each Party owed the other compensation: Hungary for damages arising out of the delays in construction caused by its suspension and subsequent abandonment of the Project; and Slovakia for losses and damages sustained out of the unilateral diversion of the Danube. Dissenting Opinion of Judge Vereshchetin Variant C met all of the conditions for the lawfulness of a countermeasure: it was a necessary, reversible and proportionate response to Hungary's violation of its Treaty obligations. The Court would impose the requirement of Variant C that it be the only means available to Czechoslovakia of asserting its rights and inducing Hungary's compliance. This over-reached the requirements established by the ILC Draft Articles on State Responsibility. Even accepting this requirement, there was no effective alternative option available to Czechoslovakia. Dissenting Opinion of Judge Parra-Aranguren Czechoslovakia was legally justified in adopting Variant C to guarantee the achievement of the object and purpose of the Treaty as a reaction to Hungary's violation of its obligations. Even assuming Variant C could be characterised as an internationally wrongful act, its wrongfulness was precluded because it was a legitimate countermeasure, meeting all the conditions required by Article 30 of the Draft Articles on State Responsibility. Dissenting Opinion of Judge ad hoc Skubiszewski (1) Hungary, alone, followed a policy of freeing itself from the bonds of the Treaty. For its part, Czechoslovakia insisted on the implementation of the Treaty, though it was ready to adopt a flexible attitude with regard to the operation of the system. When the Treaty was negotiated, the state of knowledge was sufficient to assess the impact of the Project. Progress in science and knowledge was constant, and required adaptation and negotiation. (2) By its unilateral rejection of the Project, Hungary had precluded itself from asserting that the utilisation of the hydraulic force of the Danube was dependent on the condition of a prior agreement between it and Czechoslovakia. Czechoslovakia had the right to put Variant C 288 International Environmental Law Reports s jelr into operation, but it also had the duty to respect Hungary's right to an equitable and reasonable share of the waters of the Danube. To find the operation of Variant C unlawful overlooked the considerations of equity. (3) Pecuniary compensation could not wipe out all of the consequences of the abandonment of the Project by Hungary. The attainment of the objectives of the Treaty was legitimate under the Treaty, general law and equity. The question was not simply one of damages for loss sustained, but the creation of a new system of utilisation of the water. Negotiations between the Parties should not focus on the enforcement of responsibility and compensation, but on seeking a common solution. Therefollows Order of International Court of Justice, 5 February 1997 (extract) 288 Judgment of International Court of Justice, 25 September 1997° (extract) 290 Separate Opinion of Vice-President Weeramantry 316 Separate Opinion of Judge Bedjaoui (extract) [Translation] 342 Separate Opinion of Judge Koroma (extract) 348 Dissenting Opinion of Judge Oda (extract) 352 Dissenting Opinion of Judge Herczegh (extract) [Translation] 355 Dissenting Opinion of Judge ad hoc Skubiszewski (extract) 359 Order of International Court of Justice, 5 February 1997 (extract) [31 Having regard to the Special Agreement between the Republic of Hungary and the Slovak Republic, signed in Brussels on 7 April 1993 and notified jointly to the Court on 2 July 1993, whereby the Parties submitted to the Court the differences between them concerning the Gabčíkovo-Nagymaros Project, Having regard to the Memorials, Counter-Memorials and Replies [4] which were filed by the Parties within the time-limits fixed to that end by the Orders dated 14 July 1993 and 20 December 1994; Whereas, by a letter dated 16 June 1995, the Agent of Slovakia asked the Court 'to be so good as to implement its powers under Article 66 of the Rules of Court and to decide to visit the locality to which the case concerning the Gabčikovo-Nagymaros Project relates, and there to exercise its functions with regard to the obtaining of A The declarations of President Schwebel andjudgc Rezek are not reproduced in this volume but can be found at ICJ Repots (997, pp. S 5 and 86 respectively. The dissenting opinions of Judges Ranjeva, Fleischhauer, Vereshchetin and Parra-Aranguren arc not reproduced in this volume but can be found at ICJ Reports 1997, pp. 170, 204, 219 and 227 respectively. Gabakovo-Nagymaros Project 289 evidence'; and whereas a copy ofthat letter was duly transmitted to the Agent of Hungary; Whereas, by a letter dated 28 June 1995. the Agent of Hungary informed the Court that if it 'should decide that a visit to the various areas affected by the Project (or, more precisely, affected by variant C) would be useful, Hungary would be pleased to co-operate in organizing such a visit'; Whereas, further to certain exchanges of views between the President of the Court and the Agents of the Parties on 30 June 1995, the Agents, by a letter dated 14 November 1995, jointly notified the Court of the text of a 'Protocol of Agreement between the Republic of Hungary and the Slovak Republic with a view to proposing to the International Court of Justice the arrangements for a visit in situ in the case concerning the Gabakovo-Nagymaros Project', done in Budapest and New York on 14 November 1995, and signed by them; Whereas by the terms ofthat Protocol the Parties 'propose[d] by mutual agreement to the Court that it should effect a visit' in 5iiw under the conditions set forth therein; and whereas those conditions included the outline of a programme, the precise dates and details of which were to be defined at a later time by the Court, after ascertaining the view of the Parties; Whereas, during a meeting held by the President of the Court with the Agents of the Parties on 5 December 1996, the Agents agreed on dates at which the proposed visit might take place; and whereas the Registrar confirmed to them, by letters dated 6 December 1996, that those dates were agreeable to the Court; Whereas the Agents of the Parties jointly notified to the Court, by letter dated 3 February 1997, the text of Agreed Minutes done at Budapest and at New York on 3 February 1997, and signed by them; and whereas those Agreed Minutes supplemented the Protocol of Agreement of 14 November 1995 and contained detailed proposals for the conduct of the visit in situ; Whereas it appears to the Court that to exercise its functions with regard to the obtaining of evidence at a place or locality to which the case relates may facilitate its task in the instant case, and whereas the proposals made by the Parties to that end may be accepted, [5] The Court, Unanimously, (1) Decides to exercise its functions with regard to the obtaining of evidence by visiting a place or locality to which the case relates; (2) Decides to adopt to that end the arrangements proposed by the Parties in the Protocol of Agreement dated 14 November 1995, as subsequently specified, in accordance with the provisions of that Protocol, in the Agreed Minutes dated 3 February 1997. [Reports: ICJ Reports 1997, p. 3; 116 ILR 1 at p. 15] 290 International Environmental Law Reports 5IELR Judgment of International Court of Justice, 25 September 1997 (extract) [10] 1. By a letter dated 2 July 1993, filed in the Registry of the Court on the same day, the Ambassador of the Republic ofHungary (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: f 11 ] The Republic ofHungary and the Slovak Republic, Considering that differences have arisen between the Czech and Slovak Federal Republic and the Republic ofHungary regarding the implementation and the termination of the Treaty on the Construction and Operation of the Gabčíkovo-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 Gabčíkovo-Nagymaros Project; Recognizing that the Parties concerned have been unable to settle these differences by negotiations; Having in mind that both the Czechoslovak and Hungarian delegations expressed their commitment to submit the differences connected with the Gabčíkovo-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 I 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 I lungary was entitled to suspend and subsequently abandon, in 1989, the works on the Nagymaros Project and on the part of the Gabčíkovo Project for which the Treaty attributed responsibility to the Republic ofHungary. (b) whether the Czech and Slovak Federal Republic was entitled to proceed, in Novem- - ■ -- j--------:„,„ „h-MHrtň ft*,™ October 1992 Gabčíkovo-Nagymaros Project 291 this system, described in the Report of the Working Group of Independent Experts of the Commission of the European Communities, the Republic ofHungary 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); (c) [12] what are the legal effects of the notification, on 19 May 1992, of the termination of the Treaty by the Republic ofHungary. (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. 192 International Environmental Law Reports JffiLR (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 für executing its judgment. Article ó (1) The present Special Agreement shall be suhject to ratification. {2) [13] 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 [he undersigned being duly authorized thereto, have signed the present Special Agreement and have affixed thereto their seals. [ -.-) [17] [. .. ] 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 Gabčíkovo-Nagymaros System of Locks' (hereinafter called the f1977 Treaty*). The names or" 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 ot the natural resources OÍ ihe Bratislava-Budapest section ol the Danube river for the development ofwater [18] resources, energy, transport, agriculture and other sectors of"the national economy of [he Contracting Parties. Thejomt 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 ofwater 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 Malý 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 ofthat region, Gabčíkova-Nagymaras Project 293 l by the main channel of the river. The area lying between the Malý Danube and that P channel, in Slovak territory, constitutes the Žitný Ostrov; the area between the main S. channel and the Mosoni Danube, in Hungarian territory, constitutes the Szigetköz. % Čunovo and, further downstream, Gabčíkovo, are situated in this sector of the river ■ on Slovak territory, Cunovo on the right bank and Gabčíkovo on the left. Further downstream, after the conlluence of the various branches, the river enters Hungarian territory and the topography becomes hiilier 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. p. 19 below).17' 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, [20] 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. [■■■] [29] 27. The Court will now turn to a consideration of the questions submitted by the Parties. In terms of Article 2, paragraph 1 fa), 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 Gabčíkovo Project for which the Treaty attributed responsibility to the Republic of Hungary. [..] [3S] [..,] 40. Throughout the proceedings, Hungary contended that, although u 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'. I Not reproduced ui this vulume.] 294 international Environmental law Reports UELR Hungary contended that the various installations in the Gabčíkovo-Nagymaros System of Locks had been designed to enable the Gabäkovo 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 Gabčíkovo. 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 Gabčíkovo/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 Szigetköz. 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, [36] 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 Gabčíkovo 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. Gabčíkovo-Nagymaros Project 295 41. In its written pleadings, Hungary also accused Czechoslovakia of having violated various provisions of the 1977 Treaty from before 1989 - in particular Articles i j5 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 f 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 t 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 I assessed by Czechoslovakia only from September 1990. However, in the final stage of í its argument, Hungary does not appear to have sought to formulate this complaint i as an independent ground formally justifying the suspension and abandonment of 5 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. I [•••] [37] [. .. ] 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 Gabčíkovo powerplant 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 violation 1381 of the provisions 296 International Environmental Law Reports S IEL.R of Article 27 of the 1977 Treaty (see paragraph 18 above),Lid.,p. 280). 60 Ibid., p. 277. 61 Goldsmith and Hildyard, op. at., p. 308. 62 Op. at.. Vol. 4, p. 288. 63 Ibid., p. 195. "' Needham, Science and Civilization in China. Vol. 2, History of Scientific Thought, 1969, p. 69. 332 International Environmental Law Reports 5 IELR an equilibrium between production and consumption. 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'. Here, too, we note the harmonization of developmental and environmental considerations. 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 [107] 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 come; when African tradition viewed the human community as three-fold - 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 commerce, 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 6' Jorge E. Hardoy. Pre-Columbian Cities, 1973, p. 415. 66 John Collier, Los indios Je his Americas, 1960. cited in I iardoy. op. cit., p. 41 >'. See also Donald Collier, Development of Civilization on the Coast of Peru', in Irrigation Civilizations: A Comparative Study, Julian H. Steward (ed.), 1955. 67 On Native American attitudes to land, see Guruswamy, Palmer and Weston (eds), International Environmental Law and World Order, 1994, pp. 298-9. 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', Yak J. Int'l Law. 1993, Vol. 18, p. 345; J. Hughes. American Indian Ecology, 1983. 68 A Pacific Islander, giving evidence before the first Land Commission in the British Solomons (1919-24), 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. »3.) Gabäkovo-Nagymaros Project 333 land should be used by man to the point where it could not replenish itself,69 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 [108] to cause wanton damage, even to an enemy's territory in the course of military conflict. 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 ways. 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 cities/2 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 69 On Aboriginal attitudes to land, see E. M. Eggleston, Fear, Favour and Affection, 1976. For all their concern with the environment, the Abonginal people were not without their own development projects: There were remarkable Aboriginal water control schemes at Lake Condah, Toolondo and Mount William m 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 ol the site. A sophisticated network of traps, weirs and sluices were designed . .(Stephen Johnson etal, Engineering and Society: An Australian Perspective, 1995, p. 35.) '" Nagendra Singh, Human Rights and the Future of Mankind, 1981, p. 93. 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. Säence and the Modern World, 1926. p. 17.) See the Georgia, Book II, 1. 36 ff.; I. 458 ff. Also Encyclopaedia Britannica, 1992, Vol. 29, pp. 499-500. 334 International Environmental Law Reports í IELR require a worldwide recognition ofthose 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 [109] 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.' 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'. Modern environmental law needs to take note of the experience of the past in pursuing this 'congruence of fit' between development and environmental imperatives. 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 latter. 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 question. Moreover, when the Statute of the Court described the sources of international law as including the 'general principles of law recognized [110] 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. " Goldsmith and HUdyard, op. Cit., p. 316. » Ibid. n 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. " On the precision with which these systems assigned duties to their members, see Mahnowski, Crime and Custom in Savage Society. 1926. Gabakovo-Nagymaros Project 335 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 [111] 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 opinion77 I have had occasion to observe that this principle was gathering strength and international acceptance, and had reached the level ofgeneral recognition at which this Court should take notice of it.78 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, ICJ Reports 199!, p. 344 [see p. 186 above]. See. also, Legality of the Use by a State of Nuclear Weapons in Armed Conjhct, ICJ Reports 1996, p. 140 [see p. 227 above]. Major international documents recognizing this principle (first established in domestic law under the 1972 National Environmental Protection Act of the United States) arc the 1992 Rio Declaration (Principle 17); United Nations General Assembly resolution 2995 (XXVII), 1972; the 1978 UNEP Draft Principles of Condn.-t rPnn<-inl>> ?v A™nH^ 51 <„.,.-,, 1 ,, /1.1 ,„j „ ... .1.- .«-. m--*--■ 336 International Environmental Law Reports > 1EIR 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 ELA 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 consequences; and considerations of prudence would point to the need for continuous 79 monitoring. The greater the size and scope of the project, the greater is the need for a con tinuous 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 [ 112 ] 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 Arbitration recognized the importance of continuous monitoring when, in a series of elaborate provisions, it required the parties to monitor subsequent performance under the decision. 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. 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 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 tact that multilateral development banks have adopted it as an essential precaution (World Bank Operational Directive 4.00). 79 Trail Smelter Arbitration (United Nations, Reports of International Arbitral Awards (RIAA). 1941. Vol. III. p. 1907). 80 RIAA, 1941, Vol. Ill, p. 1907. 81 Sr* ibi,l nn IQ VI 7 Gabäkovo-Nagymaros Project 337 \ Ozone Layer, 1985 (Arts. 3 and 4), and the Convention on Long-Range Transboundary i* Air Pollution, 1979 (Art. 9). There has thus been growing international recognition of the concept of continuing monitoring as part of EIA. I xhe Court has indicated in its Judgment (para. 155 (2) (C)) that a joint operational f regime must be established in accordance with the Treaty of 16 September 1977. A I continuous monitoring of the scheme for its environmental impacts will accord with j,the principles outlined, and be a part ofthat operational regime. Indeed, the 1977 í 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 [113] 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 ordained. 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 tor 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 ™ UM, 1979, Vol. XVIII, p. 1442. Pora 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 m Colombo, Sri Lanka, 4-6 July 1997. shortly to be published. 338 International Environmental Law Reports SIEL* 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 [114] 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 tobe 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, 1CJ 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'. 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 standards 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 (ICJ Reports 1966, pp. 293-4). 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 [115) unsound, even though it is taken under an instrument of more than 20 years ago. Oppenhems International Law. R. Y.Jennings and A. Watts (eds.), 1992, p. 1275, note 21. Gabakovo-Nagymaros Project 339 Mention may also be made in this context of the observation of the European I /-ourt of Human Rights in the Tyrer case that the Convention is a 'living instrument' I which must be interpreted 'in the light of present-day conditions'. It may also be observed that we are not here dealing with questions of the validity of I the Treaty which fall to be determined by the principles applicable at the time of the I Treaty, but with the application of the Treaty. In the application of an environmental I treaty, it is vitally important that the standards in force at the time of application would 1 be the governing standards. 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 ofHungary. C. The handling o/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 Government [116J ofHungary 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. 85 Judgment of the Court, Tyrer case, 25 April 1978, para. 31, publ. Court A, Vol. 26. at 15, 16. See further Rosalyn Higgins, Some Observations on the Inter-Tetnporal Rule in International Law', in Theory of International Law at the Threshold of the 21 si Century, op. cit., p. 173. 340 International Environmental Law Reports s /£j_d 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 u years, A further reaffirmation of this Hungarian position is to be found in the signing of a Protocol by the Deputy Chairman of the Hungarian Council of Ministers on J 6 February 1989, reaffirming Hungary's commitment to the 1977 Project. Hun-' gary was in fact interested in setting back the date of completion from 1995 to I 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 present.87 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 [ 117] 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. 87 On the application of principles of estoppel in the jurisprudence of this Court and its predecessor, see Legal Status of Eastern Greenland. PCI], Series A/B, No. S3, p. 22; fisheries (United Kingdom v. Norway;, ICJ Reports 19S1, p. 116; Temple ofPreah Vihear, ICJ Reports 1962, p. 151. For an analysis of this jurisprudence, see the separate opinion of Judge Ajibola in Territorial Dispute (Libyan Arab Jamahiriya/Chad), ICJ Reports 1994, pp. 77-83. Gabčíkovo-Nagymaros Project 341 L/ 1 Is it appropriate to use the rules ofinter partes litigation to determine erga fpmnes obligations? f This recapitulation of the facts brings me to the point where I believe a distinction I ust be made between litigation involving issues inter partes and litigation which Í involves issues with an erga omnes connotation. I 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 thepctrties. 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 f 118] inter partes litigation, would prevent it from taking up wholly contradictory positions. But can momentous environmental issues be decided on rhe 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 comment.88 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 88 Sec, for example. Peter Brett, Implications of Science for the Law'. McGii! Law Journal. \97Z. Vol. 18, p. 170, at p. 191. Fora well-known comment from the perspective of sociology, see Jacques Ellul, The Technological Society, trans. John Wilkinson. 1964, pp. 251, 291-300. 342 International Environmental Law Reports 5/ELR 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 1 have thought it fit to make these observations on a few aspects which have presented themselves for consideration in this case. [119J 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. [120J SEPARATE OPINION OF JUDGE BEDJAOUI (EXTRACT) [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. [...] 3.1 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:he 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, ICJ 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). [121] 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 ofinterpretation 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'. Gabakovo-Nagymaros Project í A- The 'evolutionary interpretation' can only be applied if the general rule ofinterpretation I 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 (,. (i) It may be useful first to restate the obvious: pacta sunt servanda. Inasmuch as the k 1997 Treaty is regarded as being in force for the purposes of a judicial interpretation, í 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' (ICJ 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 [122] 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'.89 (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 °nly in exceptional cases of the sort we shall be looking at. M. K. Yasseen, 'Ľinterprétation des traités ďaprés la Convention de Vienne sur le droit des traités', Rcaieil des corns de I Academie de droit inlernaiioml de La Hdye. Vol. 151 (1976), p. 64. 344 International Environmental Law Reports am 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 interpreted, such as the 'sacred trust', 'were not static, but were by definition evolutionary' (ICJ 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 evolutionary. It is the law corresponding to the period when this concept is [123] 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. 11,1 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 Gabäkovo-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 interpreted '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 Gabäkovo-Nagymaros Project 345 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 ofthat 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. [124| 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 ofthat content. 17. T he farmer 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. 346 International Environmental Law Reports % IELK 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. [125] 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 three-fold 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 Gabčíkovo hydroelectric power plant on Slovak territory is conditioned by the Dunakiliti dam on Hungarian territory. And the operation ofthat 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 Gabäkovo-Nagymaros Project 347 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. [126] 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 348 International Environmental Law Reports SIELR of the Treaty, which I hold to be intersecting violations, resulting in effectivités which must be reconciled with the survival of the Treaty. [...] [142] SEPARATE OPINION OF JUDGE KOROMA (EXTRACT) [...] 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 [143] 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 servanda. 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 operation 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 Čunovo 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 Gabčikovo-Nagymaros Project 349 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 ecosystems 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 conclusion [144] 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). 350 International Environmental Law Reports j n?r& 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 summum jus summa injuria but it ought rather to be seen as a re-affirmation 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. [145] 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 acknowledging 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 Gabčíkovo 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. 1148] [... ] 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. [149] [... ] 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 Gabäkovo-Nagymaros Project ■effects of the diversion of these waters upon the ecology of the riparian area of the Szieetköz - and failed to respect the degree of proportionality required by interna-E tionallaw. I The implication of the Court's finding that the principle of equitable utilization was Hcviolated by the diversion of the river is not free from doubt. That principle, which BL now set out in the Convention on the Non-Navigational Uses of International E Watercourses, is not new. ;. While it is acknowledged that the waters of rivers must not be used in such a way as Kto cause injury to other States and in the absence of any settled rules an equitable solu-I tíon must be sought (case of the Diversion of Water from the Meuse, Judgment, 1937, PCIJ, 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 Gabčíkovo 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 [150] 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, PCIJ, 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 nghts oř 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 352 International Environmental Law Reports y IELR 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. [151] [...] The Judgment also alluded to 'the continuing effects of the diversion of these waters on the ecology of the riparian area of the Szigetköz'. 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. [152 J [... ] 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 warranted 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. DISSENTING OPINION OF JUDGE ODA (EXTRACT) //. The suspension and subsequent abandonment of the works by Hungary in 19X9 (Special Agreement, Art. 2, para 1 (a); Art. 2, para. 2) 1. Special Agreement, Article 2, Paragraph 1 (a) 8. Under the terms of the Special Agreement, the Court is requested to answer the question whether [Hungary] was entitled to suspend and subsequenlly abandon, in 1989, the works on the Nagymaros Project and on the part of the Gabčíkovo Project for which the Treaty attributed responsibility to [Hungary] (An. 2, para. 1 (a)). [159] [... ] Let me examine the situation in more detail. Hungary relies, in connection with the Dunakiiiti dam and the diversion of waters into the bypass canal at Dunakiiiti, upon the deterioration of the environment in the Szigetköz region owing to the reduced quantity of available water in the old Danube river bed. In my view, Gabčíkovo-Nagymaros Project 353 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 Szigetköz 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 Gabčíkovo-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 Gabčíkovo-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 [160] 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 Gabčíkovo power plant. One is at a loss to understand how Hungary could have thought that the operation of the bypass canal and of the Gabčíkovo power plant, to which Hungary had not objected at the time, would have been possible without the completion of the works at Dunakiiiti 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 Czechoslovakia. If the principles which were taken as the basis of the 1977 Treaty orof the JCP had been contrary to the general rules of international law - environmental law in particular - the two States, which had reached agreement 354 International Environmental Law Reports HEIR 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 development [ 1611 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. [...] [167] [... ] 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.' [...] 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 Gabčíkovo power plant by Slovakia, as well as the [168] 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 Gabčíkovo-Nagymaros System of Locks is now in operation, in its modified form Gabäkovo-Nagymaros Project (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 ot 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. [•■•] [176] DISSENTING OPINION OF JUDGE HERCZEGH (EXTRACT) [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 8July 1996 on the Legality oj the Threat or Use of Nuclear Weapons, the Court declared that it recognized thai 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 Stales 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. (ICJ Reports 1996, pp. 241-2. para. 29.)'901 f90 Seep. 256 above! 356 International Environmental Law Reports UELR 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 ofthat principle to the construction and operation of the G/N Project. The Court only grants a very modest place to ecological considerations [177] 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, 1 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 considered 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. 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 [ 178) 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 Vavroušek, 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: Gabakovo-Nagymaros Project 357 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. (ICJ Reports 1971, pp. 31-2, 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, m 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 [179] 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 ot 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. 358 International Environmental Law Reports HEIR 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. [180] [... ] Between 1977 and 1989 Hungarian experts became aware ofthe ecological dangers potentially caused not only by the peak mode operation of the system of locks, but also by the construction of certain works ofthe system which had been designed with a view to such a mode of operation: more particularly the Nagymaros dam and the storage reservoir at [181] 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 Gabčíkovo power plant were to be operated in run-of-the-river mode. [... ] It is therefore difficult to understand why Czechoslovakia insisted with some vigour that Hungary had to continue with the construction ofthe Nagymaros dam - when its primary purpose was to allow peak mode operation ofthe Gabčíkovo 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. [...] [182] [... ] 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. [...] [188] [... ] 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 Gabčíkovo, 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). Gabäkovo-Nagyma ros Project 359 This is absolutely not the case. As fa r as Hungary was concerned, what was at stake I was the safeguarding of an essential interest against a peril which was grave and immi-i nent, that is to say certain and inevitable, and any measures taken to counteract that ' peril would have radically transformed the scope ofthe 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 ofthe peril alleged by Hungary was recognized - at least in part - by the other Party, and Hungary therefore did not act in an arbitrary manner. [189] [... ] 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 ofthe law governing international watercourses. During the work done by the United Nations on the Draft Convention on the Law ofthe Non-Navigational Uses of International Watercourses, the upstream countries complained that the provisions ofthe 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 ofthe upstream and the downstream countries, and have ensured that harmonious progress in enhancement ofthe 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 reasoning, for the questions which follow. [232J DISSENTING OPINION OF JUDGE SKUBISZEWSKI (EXTRACT) 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 360 International Environmental Law Reports SIELR 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.)'9'1 / [233] [... J 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 [234] during the period 1989 to 1992 Hungary progressively repudiated them. It thus created an estoppel situation for itself. // [...] [236| [...] 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 ol 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.... t" Not reproduced m this volume.) Gabakovo-Nagyma ros Project 3 61 Bui international practice does not so far permit more than the following conclusion: me 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 ihe 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. (RlAA, Vol. XII, p. 308, para. 13; ILR, Vol, 24, 1957, p. 129, para. 13; footnote omitted) [237] 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 Gabčíkuvo 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. Ill [2391 [... ] 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 Gabčíkovo 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. ÍV 22. A State that concluded a treaty with another State providing for the execution of a project like Gabčíkovo-Nagymaros cannot, when that project is near completion, simply say that all should be cancelled and the [240] 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 362 International Environmental Law Reports J lELR order tu avoid harm: Czechoslovakia and Slovakia had the right to expect that certain parts oithe Project would become operational. 23. Thus, pecuniary compensation could not, in the present case, wipe out even some, not to speak or" all, of the consequences of the abandonment of the Project by Hungary How could an indemnity compensate tor 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 ofa 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 hoEdings 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 3 C of the operative paragraph does not correspond to the possibility ofdiflerent evaluations concerning the various elements of the 'provisional solution". There is equally no reflection ofthat possibility in the formulation ot the finding in point 2 D. Indeed, the terms ofthat 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 farther 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 |241J 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. 148-51) 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 oi point 2 D to the negotiating Governments is that, notwithstanding their legal claims and counterclaims lor compensation, they should seek - and find - a common solution- [Reports: i Cj Reports 1997, p. 7; lló ILR I at p. 17] Fisheries Jurisdiction Case (Spain v. Canada)1 International Court of Justice, The Hague 4 December 1998 (Schwebel, President; Weeramantry, Vice-President; Oda, Bedjaoui, Guillaume. Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans and Rezek,Judges; Lalonde and Torres Bernárdez, Judges ad hoc) Jurisdiction - International Court of Justice - optional clause - Statute of the Court, Article 36(2) - declaration accepting jurisdiction of the Court -reservations - ňght of State making declaration to define scope of acceptance of jurisdiction - Whether reservations to be construed restrictively -distinction between substantive law and rules governing jurisdiction of the Court - principles to be applied in interpretation of declaration and reservations - intention of State making declaration - principle of good faith Powers and procedures of tňbunals - procedure - International Court of Justice - preliminary objections - whether objection possessing an exclusively preliminary character- duty oftheCourt in dealing with preliminary objections Waters - sea - high seas -jurisdiction -fisheries - conservation measures -arrest of Spanish vessdby Canada outside Canadian waters-legality-whether dispute falling within jurisdiction of International Court of Justice Waters - maritime environment -fisheries conservation - limit of conservation measures - compatibility with regime of the high seas Spdin was represented by Mrjosě Antonia Pasror Ridruejo, Mr Auréliu Pérez Giralda. Mr Pierre-Marie Dupuy. Mr Keirh Higher. Mr Antunki Remira Brotóns and Mr Luí$ [gnacio Sanchez Rodriguez, Canada was represented by HE Mr Philippe Kirsch QC, Mi Blair Hankey Mr L. Alan Willis QCn Mr Prosper Weil. Ms Louise de La Fayetie. Mf Paul Faiiteus, Mfjohn F. G. r Eannaford. Ms Ruth Üzols Barr, Ms Tabelle Pgupari arid Ms Laurie Wright. Judge mi hoc nominated by Canada. Judge ad hoc nominated by Spain