Gabčíkovo-Nagymaros Project (Hungary v. Slovakia) PDF

INTERNATIONAL COURT O F JUSTICE
REPORTS O F JUDGMENTS,
ADVISORY OPINIONS AND ORDERS
CASE CONCERNING
THE GABCIKOVO-NAGYMAROS PROJECT
(HUNGARYISLOVAKIA)
JUDCMENT OF 25 SEPTEMBER 1997
COUR INTERNATIONALE DE JUSTICE
RECUEIL DES ARRÊTS,

AVIS C:ONSULTATIFS ET ORDONNANCES
AFFAIRE RELATIVE AU PROJET

GA.BCIKOVO-NAGYMAROS
(HONGRIEISLOVAQUIE)
ARRÊT DU 25 SEPTEMBRE 1997

Official citation :
GabCikovo-Nagymaros Project (HungarylSlovakia),
Judgment, 1.C.J. Reports 1997, p. 7
Mode officiel de citation:

Projet GabCikovo-Nagymaros (HongrielSlovaquie),
arrêt, C.I. J. Recueil 1997, p. 7
Sales number
ISSN 0074-4441
ISBN 92-1-070757-5
No de vente: 692
25 SEPTEMBER 1997
JUDGMENT
GABC~KOVO-NACYMAROS PROJECT
(HUNGARYISLOVAKIA)
PROJET GABCIKOVO-NAGYMAROS
(HONGRIEISLOVAQUIE)
INTERNATIONAL COURT O F JUSTICE
1997 YEAR 1997

25 September
General List
No. 92 25 September 1997
CASE CONCERNING
THE GABC~KOVO-NAGYMAROSPROJECT
(HUNGARYISLOVAKIA)
Treaty of 16 September 1977 concerning the construction and operation of

the GabCikovo-Nugymaros Systenz of Locks - "Related instruments".
Suspension and abandonment by Hungary, in 1989, oj'works on the Project
- Applicability of the Vienna Convention of 1969 on the Law of Treaties -
Law of treaties and law of State responsibility - Stute of necessity as a ground
jor precluding the wrongfulness of an act - "Essential interest" of the State
committing the act - Environment - "Grave und imminent peril" - Act
having to constitute the "only means" of saj&guarding the interest threatened -
State having "contributed to the occurrence of the state of necessity".
Czechoslovakia:~proceeding, in November 1991, to "Variant C " andputting
into operation, from October 1992, this Variant - Arguments drawn from a
proposed principle of approximate application - Respect for the limits of the
Treaty - Right to an equitahle and reasonable share of rhe resources of an
international wutercourse - Commission of a wrongful act andprior conduct of
a prepararory character - Obligation to mitigate damages - Principle con-
cerning only the calculation of damages - Countermeasures - Response to an
internationally wrongful act - Proportionality - Assumption of unilateral
control of a shared resource.
Notification by Hungary, on 19 May 1992, of the fermination of the 1977
Treaty and reluted instruments - Legal efjrects - Matter falling within the law
of treaties - Articles 60 to 62 of the Vienna Convention on the Law of Trearies
- Customury law - lmpossihility of performance - Permanent disappearance
or destruction of an "object" indispensable for execution- Impossibility of prr-
formance resulting from the hreach, by the party invoking il, of an obligation
under the Treaty - Fundamental change of circumstances - Essential basis of
the consent of the parties - Extent of obligations still to be performed - Sta-
bility of treaty relations - Material breach of the Treaty - Date on which the
breach occurred and date of notijïcation of termination - Victim of a breach
having itselfcommitted a prior breach of the Treaty - Emergence of new norms
of environmental law - Sustainable development - Treaty provisions permit-
8 GABC~KOVO-NAGYMAROS
PROJECT (JUDGMENT)
ting the parties, by mutual consent, to take account of those norms - Repudia-
tion of the Treaty - Reciprocal non-compliance - Integrity of the rule pacta
sunt servanda - Treaty remaining in force until terminated by mutual consent.
Legal consequences of the Judgment of the Court - Dissolution of Czecho-

slovakia - Article 12 of the Vienna Convention of 1978 on Succession of States
in respect of' Treaties - Customary laiv - Succession of States without effect
on a treaty creating rights and obligations "attaching" to the territory -
Irregular state of uffairs as a result of failure of both Parties to comply with

their treaty obligations
- Ex injuria jus non oritur - Objectives of the Treaty
- Obligations overtaken by events - Positions adopted by the parties after
conclusion of the Treaty - Good faith negotiations - Effects of the Project on
the environment - Agreed solution to be found by the Parties - Joint régime
- Reparation for arts committed by both Parties - Co-operation in the use of
shared water resources - Damages - Succession in respect of rights and obli-
gations relating to the Project - Intersecting ivrongs - Settlement of accounts
for the construction of the works.
JUDGMENT
Present: President SCHWEBEL;Vice-President WEERAMANTRY; Judges ODA,

BEDIAOUI,GUILLAUME, RANJEVA, HERCZEGH,SHI, FLEISCHHAUER,
KOROMA,VERESHCHETIN, PARRA-ARANGUREN, KOOIJMANS, REZEK;
Judge ad hoc SKUBISZEWSKI
; Registrar VALENCIA-OSPINA.
In the case concerning the GabCikovo-Nagymaros Project,

between
the Republic of Hungary,
represented by
H.E. Mr. Gyorgy Szénasi, Ambassador, Head of the International Law
Department, Ministry of Foreign Affairs,
as Agent and Counsel;
H.E. Mr. Dénes Tomaj, Ambassador of the Republic of Hungary to the
Netherlands,
as Co-Agent ;
Mr. James Crawford, Whewell Professor of International Law, University of
Cambridge,
Mr. Pierre-Marie Dupuy, Professor at the University Panthéon-Assas
(Paris II) and Director of the Institut des hautes études internationales
of Paris,
Mr. Alexandre Kiss, Director of Research, Centre national de la recherche
scientifique (retd.),
Mr. Laszlo Valki, Professor of International Law, Eotvos Lorand Univer-
sity, Budapest,
GABCIKOVO-NAGYMAROSPROJECT (JUDGMENT)
Mr. Boldizsar Nagy, Associate Professor of International Law, Eotvos

Lorand University, Budapest,
Mr. Philippe Sands, Reader in International Law, University of London,
School of Oriental and African Studies, and Global Professor of Law,
New York University,
Ms Katherine Gorove, consulting Attorney,
as Counsel and Advocates;
Dr. Howard Wheater, Professor of Hydrology, Imperia1 College, London,
Dr. Gabor Vida, Professor of Biology, Eotvos Lorand University, Budapest,
Member of the Hungarian Academy of Sciences,
Dr. Roland Carbiener, Professor emeritus of the University of Strasbourg,
Dr. Klaus Kern, consulting Engineer, Karlsruhe,
as Advocates;
Mr. Edward Helgeson,
Mr. Stuart Oldham,
Mr. Péter Molnar,
as Advisers;
Dr. Gyorgy Kovacs,
Mr. Timothy Walsh,
Mr. Zoltan Kovacs,
as Technical Advisers ;
Dr. Attila Nyikos,
as Assistant ;
Mr. Axe1 Gosseries, LL.M.,
as Translator ;
Ms Éva Kocsis,
Ms Katinka Tompa,
as Secretaries,
and
the Slovak Republic,
represented by
H.E. Dr. Peter Tomka, Ambassador, Legal Adviser of the Ministry of For-
eign Affairs,
as Agent;
Dr. Vaclav Mikulka, Member of the International Law Commission,
as Co-Agent, Counsel and Advocate;
Mr. Derek W. Bowett, C.B.E., Q.C., F.B.A., Whewell Professor emeritus of
International Law at the University of Cambridge, former Member of the
International Law Commission,
as Counsel ;
Mr. Stephen C. McCaffrey, Professor of International Law at the University
of the Pacific, McGeorge School of Law, Sacramento, United States of
America, former Member of the International Law Commission,
Mr. Alain Pellet, Professor at the University of Paris X-Nanterre and at the
Institute of Political Studies, Paris, Member of the International Law
Commission,
Mr. Walter D. Sohier, Member of the Bar of the State of New York and of
the District of Columbia,
Sir Arthur Watts, K.C.M.G., Q.C., Barrister, Member of the Bar of England
and Wales,
Mr. Samuel S. Wordsworth, avocat à la cour d'appel de Paris, Solicitor of
the Supreme Court of England and Wales, Frere Cholmeley, Paris,
as Counsel and Advocates;

Mr. Igor Mucha, Professor of Hydrogeology and Former Head of the
Groundwater Department at the Faculty of Natural Sciences of Comenius
University in Bratislava,
Mr. Karra Venkateswara Rao, Director of Water Resources Engineering,
Department of Civil Engineering, City University, London,
Mr. Jens Christian Refsgaard, Head of Research and Development, Danish

Hydraulic Institute,
as Counsel and Experts;
Dr. Cecilia KandraCova, Director of Department, Ministry of Foreign
Affairs,
Mr. Ludëk Krajhanzl, Attorney at Law, Vyroubal Krajhanzl Skacel and
Partners, Prague,
Mr. Miroslav LiSka, Head of the Division for Public Relations and Exper-
tise, Water Resources Development State Enterprise, Bratislava,
Dr. Peter VrSansky, Minister-Counsellor, Chargé d'affaires a.i.,of the

Embassy of the Slovak Republic, The Hague,
as Counsellors ;
Miss Anouche Beaudouin, allocataire de recherche at the University of
Paris X-Nanterre,
Ms Cheryl Dunn, Frere Cholmeley, Paris,
Ms Nikoleta GI!ndova, attaché, Ministry of Foreign Affairs,
Mr. Drahoslav Stefanek, attaché, Ministry of Foreign Affairs,
as Legal Assistants,
composed as above,
after deliberation,
delivers the following Judgment ;
1. By a letter dated 2 July 1993, filed in the Registry of the Court on the
same day, the Ambassador of the Republic of Hungary (hereinafter called
"Hungary") to the Netherlands and the Chargé d'affaires ad interim of the Slo-
vak Republic (hereinafter called "Slovakia") to the Netherlands jointly notified
to the Court a Special Agreement in English that had been signed at Brussels
o n 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:
GABcIKOVO-NAGYMAROS PROJECT (JUDGMENT)
"The Republic of Hungary and the Slovak Rcpublic,

Considering that differences have arisen between the Czech and Slovak
Federal Republic and the Republic of Hungary regarding the implementa-
tion and the termination of the Treaty on the Construction and Operation
of the Gabtikovo-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 solu-
tion';
Beuring in nlind that the Slovak Republic is one of the two successor
States of the Czech and Slovak Federal Republic and the sole successor
State in respect of rights and obligations relating to the GabCikovo-Nagy-
maros Project ;
Recognizing that the Parties concerned have been unable to settle these
differences by negotiations;
Huving in rnind that both the Czechoslovak and Hungarian delegations
expressed their commitment to submit the differences connected with the
GabCikovo-Nagymaros Project in al1 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;
Reculling their commitment to apply, pending the Judgment of the
International Court of Justice, such a temporary water management régime
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 Interna-
tional Court of Justice pursuant to Article 40, paragraph 1, of the Statute
of the Court.
Article 2
(1) The Court is requested to decide on the basis of the Treaty and rules
and principles of general international law. as well as such other treaties as
the Court may find applicable,
( a ) whether the Republic of Hungary was entitled to suspend and subse-
quently abandon, in 1989, the works on the Nagymaros Project and
on the part of the GabCikovo Project for which the Treaty attributed
responsibility to the Republic of Hungary:
( b ) whether the Czech and Slovak Federal Republic was entitled to pro-
ceed, in November 1991, to the 'provisional solution' and to put into
operation from October 1992 this system, described in the Report of
the Working Group of Independent Experts of the Commission of
the European Communities, the Republic of Hungary and the Czech
and Slovak Federal Republic dated 23 November 1992 (damming up
of the Danube at river kilometre 185 1.7 on Czechoslovak territory
and resulting consequences on water and navigation coufse);
12 GABC~KOVO-NAGYMAROSPROJECT (JUDGMENT)
( c ) what are the legal effects of the notification, on 19 May 1992, of the
termination of the Treaty by the Republic of Hungary.
(2) The Court is also requested to determine the legal consequences,
including the rights and obligations for the Parties, arising from its Judg-
ment on the questions in paragraph 1 of this Article.
Article 3
(1) Al1 questions of procedure and evidence shall be regulated in accord-
ance 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:
(LI)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;
( h i a Counter-Memorial presented by each of the Parties not later than
seven months after the date o n which each has received the certified
copy of the Memorial of the other Party;
( c i 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 pro-
ceedings 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 régime
for the Danube.
(2) They further agree that, in the period before such a régime is estab-
lished or implemented, if either Party believes its rights are endangered by
the conduct of the other, it may request immediate consultation and ref-
erence, 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 bind-
ing upon them and shall execute it in its entirety and in good faith.
(2) Immediately after the transmission of the Judgment the Parties shall
enter into negotiations on the modalities for its execution.
(3) If they are unable to reach agreement within six months, either
Party may request the Court to render an additional Judgment to deter-
mine the modalities for executing its Judgment.
Article 6
(1) The present Special Agreement shall be subject to ratification.
(2) The instruments of ratification shall be exchanged as soon as pos-
sible in Brussels.
(3) The present Special Agreement shall enter into force on the date of
exchange of instruments of ratification. Thereafter it will be notified jointly
to the Registrar of the Court.
In witness whereof the undersigned being duly authorized thereto, have
signed the present Special Agreement and have affixed thereto their seals."
3. Pursuant to Article 40, paragraph 3, of the Statute and Article 42 of the
Rules of Court, copies of the notification and of the Special Agreement were
transmitted by the Registrar to the Secretary-General of the United Nations,
Members of the United Nations and other States entitled to appear before the
Court.
4. Since the Court included upon the Bench no judge of Slovak nationality,
Slovakia exercised its right under Article 31, paragraph 2, of the Statute to
choose a judge ad hoc to sit in the case: it chose Mr. Krzysztof Jan Skubi-
szewski.
5. By an Order dated 14 July 1993, the Court fixed 2 May 1994 as the time-
limit for the filing by each of the Parties of a Memorial and 5 December 1994
for the filing by each of the Parties of a Counter-Memorial. having regard to
the provisions of Article 3, paragraph 2 ( a ) and (b), of the Special Agreement.
Those pleadings were duly filed within the prescribed time-limits.
6. By an Order dated 20 December 1994, the President of the Court,

having heard the Agents of the Parties, fixed 20 June 1995 as the time-limit
for the filing of the Replies, having regard to the provisions of Article 3, para-
graph 2 ( c ) , of the Special Agreement. The Replies were duly filed within the
time-limit thus prescribed and, as the Court had not asked for the submission
of additional pleadings, the case was then ready for hearing.
7. By letters dated 27 January 1997, the Agent of Slovakia, referring to the
provisions of Article 56, paragraph 1, of the Rules of Court, expressed his Gov-
ernment's wish to produce two new documents; by a letter dated 10 February
1997, the Agent of Hungary declared that his Government objected to their
production. On 26 February 1997, after having duly ascertained the views of
the two Parties, the Court decided, in accordance with Article 56, paragraph 2,
of the Rules of Court, to authorize the production of those documents under
certain conditions of which the Parties were advised. Within the time-limit fixed
by the Court to that end, Hungary submitted comments on one of those docu-
ments under paragraph 3 of that same Article. The Court authorized Slovakia
to comment in turn upon those observations, as it had expressed a wish to d o
so; its comments were received within the time-limit prescribed for that pur-
pose.
8. Moreover, each of the Parties asked to be allowed to show a video cas-
sette in the course of the oral proceedings. The Court agreed to those requests,
provided that the cassettes in question were exchanged in advance between the
Parties, through the intermediary of the Registry. That exchange was effected
accordingly.
9. In accordance with Article 53, paragraph 2, of the Rules of Court. the
Court decided, after having ascertained the views of the Parties. that copies of
the pleadings and documents annexed would be made available to the public as
from the opening of the oral proceedings.
10. By a letter dated 16 June 1995, the Agent of Slovakia invited the Court
14 GAB~IKOVO-NAGYMAROSPROJECT (JUDGMENT)
to visit the locality to which the case relates and there to exercise its functions
with regard to the obtaining of evidence, in accordance with Article 66 of the
Rules of Court. For his part, the Agent of Hungary indicated, by a letter dated
28 June 1995, that, if the Court should decide that a visit of that kind would be
useful, his Government would be pleased to co-operate in organizing it. By a
letter dated 14 November 1995, the Agents of the Parties jointly notified to the
Court the text of a Protocol of Agreement, concluded in Budapest and New
York the same day, with a view to proposing to the Court the arrangements
that might be made for such a visit in situ; and, by a letter dated 3 February
1997, they jointly notified to it the text of Agreed Minutes drawn up in Buda-
pest and New York the same day, which supplemented the Protocol of Agree-
ment of 14 November 1995. By an Order dated 5 February 1997, the Court
decided t o accept the invitation to exercise its functions with regard to the
obtaining of evidence at a place to which the case relates and, to that end, to
adopt the arrangements proposed by the Parties. The Court visited the area
from 1 to 4 April 1997; it visited a number of locations along the Danube and
took note of the technical explanations given by the representatives who had
been designated for the purpose by the Parties.
I l . The Court held a first round of ten public hearings from 3 to 7 March
and from 24 to 27 March 1997, and a second round of four public hearings on
10, 1 1, 14 and 15 April 1997, after having made the visit in situ referred to in
the previous paragraph. During those hearings, the Court heard the oral argu-
ments and replies of:
For Hungary: H . E . Mr. Szénasi,
Professor Valki,
Professor Kiss,
Professor Vida,
Professor Carbiener,
Professor Crawford,
Professor Nagy,
Dr. Kern,
Professor Wheater,
Ms Gorove.
Professor Dupuy,
Professor Sands.
For Slovakia: H.E. Dr. Tomka,
Dr. Mikulka,
Mr. Wordsworth,
Professor McCaffrey,
Professor Mucha,
Professor Pellet,
Mr. Refsgaard,
Sir Arthur Watts.
12. The Parties replied orally and in writing to various questions put by
Members of the Court. Referring to the provisions of Article 72 of the Rules of
Court, each of the Parties submitted to the Court its comments upon the replies
given by the other Party to some of those questions.
13. In the course of the written proceedings, the following submissions were
presented by the Parties:
On hekaif of Hungary,
in the Memorial, the Counter-Memorial and the Reply (mutatis mutandis iden-
ticai texts) :
"On the basis of the evidence and legal argument presented in the
Memorial, Counter-Memorial and this Reply, the Republic of Hungary
Reyuests the Court to rrdjudge and declare

First, that the Republic of Hungary was entitled to suspend and subse-
quently abandon the works on the Nagymaros Project and on the part of
the Gabtikovo Project for which the Treaty attributed responsibility to the
Republic of Hungary;
Second, that the Czech and Slovak Federal Republic was not entitled to
proceed to the 'provisional solution' (damming up of the Danube at river
kilometre 185 1.7 on Czechoslovak territory and resulting consequences on
water and navigation course);
Tizird, that by its Declaration of 19 May 1992, Hungary validly termi-

nated the Treaty on the Construction and Operation of the Gabtikovo-
Nagymaros Barrage System of 16 September 1977:
Rrqzre.~tsthe Court to adjzldge and declare furtller

that the legal consequences of these findings and of the evidence and the
arguments presented to the Court are as follows:
(1) that the Treaty of 16 September 1977 has never been in force between
the Republic of Hungary and the Slovak Republic;
(2) that the Slovak Republic bears responsibility to the Republic of Hun-
gary for maintaining in operation the 'provisional solution' referred to
above ;
(3) that the Slovak Republic is internationally responsible for the damage
and loss suffered by the Republic of Hungary and by its nationals as a
result of the 'provisional solution';
(4) that the Slovak Republic is under an obligation to make reparation in
respect of such damage and loss, the amount of such reparation, if it
cannot be agreed by the Parties within six months of the date of the
Judgment of the Court, to be deterrnined by the Court;
(5) that the Slovak Republic is under the following obligations:
( a ) to return the waters of the Danube to their course along the
international frontier between the Republic of Hungary and the
Slovak Republic, that is to Say the main navigable channel as
defined by applicable treaties;
( b ) to restore the Danube to the situation it was in prior to the
putting into effect of the provisional solution: and
( c ) to provide appropriate guarantees against the repetition of the
damage and loss suffered by the Republic of Hungary and by its
nationals."
16 GABCIKOVO-NAGYMAROS PROJECT (JUDGMENT)
On behaif of Slovakia,
in the Memorial, the Counter-Memorial and the Reply (mutatis mutandis iden-
tical texts) :
"On the basis of the evidence and legal arguments presented in the Slo-
vak Memorial, Counter-Memorial and in this Reply, and reserving the
right to supplement or amend its claims in the light of further written
pleadings, the Slovak Republic
Requests fhe Court to udjudge and declare:
1. That the Treaty between Czechoslovakia and Hungary of 16 September
1977 concerning the construction and operation of the Gabtikovol
Nagymaros System of Locks, and related instruments, and to which the
Slovak Republic is the acknowledged successor, is a treaty in force and
has been so from the date of its conclusion; and that the notification of
termination by the Republic of Hungary on 19 May 1992 was without
legal effect.
2. That the Republic of Hungary was not entitled to suspend and subse-
quently abandon the works on the Nagymaros Project and on that part
of the Gabtikovo Project for which the 1977 Treaty attributed respon-
sibility to the Republic of Hungary.
3. That the act of proceeding with and putting into operation Variant C,
the 'provisional solution', was lawful.
4. That the Republic of Hungary must therefore cease forthwith al1 con-
duct which impedes the full and bona fide implementation of the 1977
Treaty and must take al1 necessary steps to fulfil its own obligations
under the Treaty without further delay in order to restore compliance
with the Treaty.
5. That, in consequence of its breaches of the 1977 Treaty, the Republic of
Hungary is liable to pay, and the Slovak Republic is entitled to receive,
full compensation for the loss and damage caused to the Slovak Repub-
lic by those breaches, plus interest and loss of profits, in the amounts
to be determined by the Court in a subsequent phase of the proceedings
in this case."
14. In the oral proceedings. the following submissions were presented by the
Parties
On behaif of Huagury,
at the hearing of 1 1 April 1997:
The submissions read at the hearing were mutatis mutandis identical to those
presented by Hungary during the written proceedings.
On behalf of' Slovakia,
at the hearing of 15 April 1997 :
"On the basis of the evidence and legal arguments presented in its writ-
ten and oral pleadings, the Slovak Republic,
Requests the Court to adjudge and declare:
1. That the Treaty, as defined in the first paragraph of the Preamble to the
Compromis between the Parties, dated 7 April 1993, concerning the
construction and operation of the GabtikovolNagymaros System of
Locks and related instruments, concluded between Hungary and
Czechoslovakia and with regard to which the Slovak Republic is the
successor State, has never ceased to be in force and so remains, and
that the notification of 19 May 1992 of purported termination of the
Treaty by the Republic of Hungary was without legal effect;
2. That the Republic of Hungary was not entitled to suspend and subse-
quently abandon the works on the Nagymaros Project and on that part
of the Gabeikovo Project for which the 1977 Treaty attributes respon-
sibility to the Republic of Hungary;
3. That the Czech and Slovak Federal Republic was entitled, in Novem-
ber 1991, to proceed with the 'provisional solution' and to put this sys-
tem into operation from October 1992; and that the Slovak Republic
was, and remains, entitled to continue the operation of this system;
4. That the Republic of Hungary shall therefore cease forthwith al1 con-
duct which impedes the bona fide implementation of the 1977 Treaty
and shall take al1 necessary steps to fulfil its own obligations under the
Treaty without further delay in order to restore compliance with the
Treaty, subject to any amendments which may be agreed between the
Parties ;
5. That the Republic of Hungary shall give appropriate guarantees that it
will not impede the performance of the Treaty, and the continued
operation of the system;
6. That, in consequence of its breaches of the 1977 Treaty, the Republic of
Hungary shall, in addition to immediately resuming performance of its
Treaty obligations, pay to the Slovak Republic full compensation for
the loss and damage, including loss of profits, caused by those breaches
together with interest thereon;
7. That the Parties shall immediately begin negotiations with a view, in
particular, to adopting a new timetable and appropriate measures for
the implementation of the Treaty by both Parties, and to fixing the
amount of compensation due by the Republic of Hungary to the Slo-
vak Republic; and that. if the Parties are unable to reach an agreement
within six months, either one of them may request the Court to render
an additional Judgment to determine the modalities for executing its
Judgment."
15. T h e present case arose o u t of the signature, o n 16 September 1977,

by the Hungarian People's Republic a n d the Czechoslovak People's
Republic, of a treaty "concerning the construction a n d operation of t h e
GabEikovo-Nagymaros System o f Locks" (hereinafter called the "1977
Treatv"). T h e names of the two contractine States have varied over the
yearst hereinafter they will be referred touas Hungary a n d Czechoslo-
vakia. T h e 1977 Treaty entered into force o n 30 J u n e 1978.
It provides for the construction a n d operation of a System o f Locks by
the parties a s a "joint investment". According t o its Preamble, the bar-
rage system w a s designed t o attain
"the broad utilization of the natural resources of the Bratislava-
Budapest section of the D a n u b e river f o r the development o f water
GABC~KOVO-NAGYMAROS
PROJECT (JUDGMENT)
resources, energy, transport, agriculture and other sectors of the

national economy of the Contracting Parties".
The joint investment was thus essentially aimed at the production of

hydroelectricity, the improvement of navigation on the relevant sec-
tion 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 con-
tracting parties undertook to ensure that the quality of water in the Dan-
ube 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 grave1 and
sand sediment. This plain is delimited to the north-east, in Slovak terri-
tory, by the Maly Danube and to the south-west, in Hungarian territory,
by the Mosoni Danube. The boundary between the two States is consti-
tuted, in the major part of that region, by the main channel of the river.
The area lying between the Mali Danube and that channel, in Slovak
territory, constitutes the ~ i t n Ostrov;
i the area between the main chan-
ne1 and the Mosoni Danube, in Hungarian territory, constitutes the.
Szigetkoz. Cunovo and, further downstream, GabCikovo, are situated in
this sector of the river on Slovak territory, Cunovo on the right bank and
GabCikovo on the left. Further downstream, after the confluence of the
various branches, the river enters Hungarian territory and the topo-
graphy becomes hillier. Nagymaros lies in a narrow valley at a bend in the
Danube just before it turns south, enclosing the large river island of Szen-
tendre before reaching Budapest (see sketch-map No. 1, p. 19 below).
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 Dan-
ube, 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
al1 been favourable, particularly for the water régime.
20 GABCIKOVO-NAGYMAROS
PROJECT (JUDGMENT)
Only by international CO-operationcould action be taken to alleviate

these problems. Water management projects along the Danube have fre-
quently sought to combine navigational improvements and flood protec-
tion with the production of electricity through hydroelectric power plants.
The potential of the Danube for the production of hydroelectric power
has been extensively exploited by some riparian States. The history of
attempts to harness the potential of the particular stretch of the river at
issue in these proceedings extends over a 25-year period culminating in
the signature of the 1977 Treaty.
18. Article 1, paragraph 1, of the 1977 Treaty describes the principal

works to be constructed in pursuance of the Project. It provided for the
building of two series of locks, one at Gabëikovo (in Czechoslovak ter-
ritory) and the other at Nagymaros (in Hungarian territory), to consti-
tute "a single and indivisible operational system of works" (see sketch-
map No. 2, p. 21 below). The Court will subsequently have occasion to
revert in more detail to those works, which were to comprise, inter alia, a
reservoir upstream of Dunakiliti, in Hungarian and Czechoslovak terri-
tory; a dam at Dunakiliti, in Hungarian territory; a bypass canal, in
Czechoslovak territory, on which was to be constructed the Gabcikovo
System of Locks (together with a hydroelectric power plant with an
installed capacity of 720 megawatts (MW)); the deepening of the bed of
the Danube downstream of the place at which the bypass canal was to
rejoin the old bed of the river; a reinforcement of flood-control works
along the Danube upstream of Nagymaros; the Nagymaros System of
Locks, in Hungarian territory (with a hydroelectric power plant of a
capacity of 158 MW); and the deepening of the bed of the Danube down-
Stream.
Article 1, paragraph 4, of the Treaty further provided that the techni-
cal specifications concerning the system would be included in the "Joint
Contractual Plan" which was to be drawn up in accordance with the
Agreement signed by the two Governments for this purpose on 6 May
1976; Article 4, paragraph 1, for its part, specified that "the joint invest-
ment [would] be carried out in conformity with the joint contractual
plan".
According to Article 3, paragraph 1 :
"Operations connected with the realization of the joint investment

and with the performance of tasks relating to the operation of the
System of Locks shall be directed and supervised by the Govern-
ments of the Contracting Parties through . . . (. . . 'government
delegates')."
Those delegates had, inter alia, "to ensure that construction of the Sys-
tem of Locks is . . . carried out in accordance with the approved joint
contractual plan and the project work schedule". When the works were
brought into operation, they were moreover "To establish the operating
Bratislava
Slovakia
Komarom
Szentendre
Island
SKETCH-MAP NO.2
Hungary
The Original Project
N.B.: This sketch-map has
been prepared for illustrative
purposes only
Sketch-mapnot to scale II
and operational procedures of the System of Locks and ensure compli-
ance therewith."
Article 4, paragraph 4, stipulated that:
"Operations relating to the joint investment [should] be organized
by the Contracting Parties in such a way that the power generation
plants [would] be put into service during the period 1986-1990."
Article 5 provided that the cost of the joint investment would be borne
by the contracting parties in equal measure. It specified the work to be
carried out by each one of them. Article 8 further stipulated that the
Dunakiliti dam, the bypass canal and the two series of locks at Gab-
Cikovo and Nagymaros would be "jointly owned" by the contracting
parties "in equal measure". Ownership of the other works was to be
vested in the State on whose territory they were constructed.
The parties were likewise to participate in equal measure in the use of
the system put in place, and more particularly in the use of the base-load
and peak-load power generated at ,the hydroelectric power plants
(Art. 9).
According to Article 10, the works were to be managed by the State on
whose territory they were located, "in accordance with the jointly-agreed
operating and operational procedures", while Article 12 stipulated that
the operation, maintenance (repair) and reconstruction costs of jointly
- owned works of the System of Locks were also to be borne jointly by the
contracting parties in equal measure.
According to Article 14,

"The discharge specified in the water balance of the approved
joint contractual plan shall be ensured in the bed of the Danube
[between Dunakiliti and Sap] unless natural conditions or other cir-
cumstances temporarily require a greater or smaller discharge."
Paragraph 3 of that Article was worded as follows:

"In the event that the withdrawal of water in the Hungarian-
Czechoslovak section of the Danube exceeds the quantities of water
specified in the water balance of the approved joint contractual plan
and the excess withdrawal results in a decrease in the output of
electric power, the share of electric power of the Contracting Party
benefiting from the excess withdrawal shall be correspondingly
reduced."
Article 15 specified that the contracting parties
"shall ensure, by the means specified in the joint contractual plan,
that the quality of the water in the Danube is not impaired as a
result of the construction and operation of the System of Locks".
Article 16 set forth the obligations of the contracting parties concern-
ing the maintenance of the bed of the Danube.
Article 18, paragraph 1, provided as follows :
"The Contracting Parties, in conformity with the obligations pre-
viously assumed by them, and in particular with article 3 of the Con-
vention concerning the regime of navigation on the Danube, signed
at Belgrade on 18 August 1948, shall ensure uninterrupted and safe
navigation on the international fairway both during the construction
and during the operation of the System of Locks."
It was stipulated in Article 19 that:

"The Contracting Parties shall, through the means specified in the
joint contractual plan, ensure compliance with the obligations for
the protection of nature arising in connection with the construction
and operation of the System of Locks."
Article 20 provided for the contracting parties to take appropriate
measures, within the framework of their national investments, for the
protection of fishing interests in conformity with the Convention con-
cerning Fishing in the Waters of the Danube, signed at Bucharest on
29 January 1958.
According to Article 22, paragraph 1, of the Treaty, the contracting
parties had, in connection with the construction and operation of the
System of Locks, agreed on minor revision to the course of the State
frontier between them as follows:
"(d) In the Dunakiliti-HruSov head-water area, the State frontier
shall run from boundary point 161.V.O.A. to boundary stone
No. 1.5. in a straight line in such a way that the territories
affected, to the extent of about 10-10 hectares shall be offset
between the two States."
It was further provided, in paragraph 2, that the revision of the State
frontier and the exchange of territories so provided for should be effected
"by the Contracting Parties on the basis of a separate treaty". No such
treaty was concluded.
Finally a dispute settlement provision was contained in Article 27,
worded as follows:
"1. The settlement of disputes in matters relating to the realiza-
tion and operation of the System of Locks shall be a function of the
government delegates.
2. If the government delegates are unable to reach agreement on
the matters in dispute, they shall refer them to the Governments of
the Contracting Parties for decision."
19. The Joint Contractual Plan, referred to in the previous paragraph,
set forth, on a large number of points, both the objectives of the system
and the characteristics of the works. In its latest version it specified in
paragraph 6.2 that the GabCikovo bypass canal would have a discharge
capacity of 4,000 cubic metres per second (m3/s). The power plant would
include "Eight . . . turbines with 9.20 m diameter running wheels" and
would "mainly operate in peak-load time and continuously during high
water". This type of operation would give an energy production of
2,650 gigawattihours (GWh) per annum. The Plan further stipulated in
paragraph 4.4.2 :
"The low waters are stored every day, which ensures the peak-
load time operation of the GabEikovo hydropower plant . . . a mini-
mum of 50 m3/s additional water is provided for the old bed [of the
Danube] besides the water supply of the branch system."
The Plan further specified that, in the event that the discharge into the
bypass canal exceeded 4,000-4,500 m3/s, the excess amounts of water
would be channelled into the old bed. Lastly, according to paragraph 7.7
of the Plan:
"The common operational regulation stipulates that concerning the
operation of the Dunakiliti barrage in the event of need during the
growing season 200 m3/s discharge must be released into the old Dan-
ube bed, in addition to the occasional possibilities for rinsing the bed."
The Joint Contractual Plan also contained "Preliminary Operating and
Maintenance Rules", Article 23 of which specified that "The final oper-
ating rules [should] be approved within a year of the setting into opera-
tion of the system." (Joint Contractual Plan, Summary Documentation,
Vol. 0-1-A.)
Nagymaros, with six turbines, was, according to paragraph 6.3 of
the Plan, to be a "hydropower station . . . type of a basic power-station
capable of operating in peak-load time for five hours at the discharge
interval between 1,000-2,500 m3/s" per day. The intended annual produc-
tion was to be 1,025 GWh (Le., 38 per cent of the production of GabEikovo,
for an installed power only equal to 21 per cent of that of GabCikovo).
20. Thus, the Project was to have taken the form of an integrated joint
project with the two contracting parties on an equal footing in respect of
the financing, construction and operation of the works. Its single and
indivisible nature was to have been realized through the Joint Contrac-
tua1 Plan which complemented the Treaty. In particular, Hungary would
have had control of the sluices at Dunakiliti and the works at Nagy-
maros, whereas Czechoslovakia would have had control of the works at
GabCikovo.
21. The schedule of work had for its part been fixed in an Agreement
on mutual assistance signed by the two parties on 16 September 1977, at
PROJECT (JUDGMENT)
the same time as the Treaty itself. The Agreement moreover made some
adjustments to the allocation of the works between the parties as laid
down by the Treaty.
Work on the Project started in 1978. On Hungary's initiative, the two
parties first agreed, by two Protocols signed on 10 October 1983 (one
amending Article 4, paragraph 4, of the 1977 Treaty and the other the
Agreement on mutual assistance), to slow the work down and to post-
pone putting into operation the power plants, and then, by a Protocol
signed on 6 February 1989 (which amended the Agreement on mutual
assistance), to accelerate the Project.
22. As a result of intense criticism which the Project had generated in
Hungary, the Hungarian Government decided on 13 May 1989 to sus-
pend the works at Nagymaros pending the completion of various studies
which the competent authorities were to finish before 31 July 1989. On
21 July 1989, the Hungarian Government extended the suspension of the
works at Nagymaros until 31 October 1989, and, in addition, suspended
the works at Dunakiliti until the same date. Lastly, on 27 October 1989,
Hungary decided to abandon the works at Nagymaros and to maintain
the status quo at Dunakiliti.
23. During this period, negotiations were being held between the
parties. Czechoslovakia also started investigating alternative solutions.
One of them, subsequently known as "Variant CM,entailed a unilateral
diversion of the Danube by Czechoslovakia on its territory some 10 kilo-
metres upstream of Dunakiliti (see sketch-map Nol 3, p. 26 below). In its
final stage, Variant C included the construction at Cunovo of an overflow
dam and a levee linking that dam to the south bank of the bypass canal.
The corresponding reservoir was to have a smaller surface area and pro-
vide approximately 30 per cent less storage than the reservoir initially
contemplated. Provision was made for ancillary works, namely: an intake
structure to supply the Mosoni Danube; a weir to enable, inter dia,
floodwater to be directed along the old bed of the Danube: an auxiliary
shiplock; and two hydroelectric power plants (one capable of an aniiual
production of 4 GWh on the Mosoni Danube, and the other with a pro-
duction of 174 GWh on the old bed of the Danube). The supply of water
to the side-arms of the Danube on the Czechoslovak bank was to be
secured by means of two intake structures in the bypass canal a t
DobrohoSt' and GabEikovo. A solution was to be found for the Hungar-
ian bank. Moreover, the question of the deepening of the bed of the Dan-
ube a t the confluence of the bypass canal and the old bed of the river
remained outstanding.
On 23 July 1991, the Slovak Government decided "to begin, in Sep-

tember 1991, construction to put the GabEikovo Project into operation
by the provisional solution". That decision was endorsed by the Federal
Czechoslovak Government on 25 July. Work on Variant C began
in November 1991. Discussions continued between the two parties but to
no avail, and, on 19 May 1992, the Hungarian Government transmitted
to the Czechoslovak Government a Note Verbale terminating the 1977

Treaty with effect from 25 May 1992. On 15 October 1992, Czechoslo-
vakia began work to enable the Danube to be closed and, starting on
23 October, proceeded to the damming of the river.
24. O n 23 October 1992, the Court was seised of an "Application of

the Republic of Hungary v. The Czech and Slovak Federal Republic on
the Diversion of the Danube River"; however, Hungary acknowledged
that there was no basis on which the Court could have founded its juris-
diction to entertain that application, on which Czechoslovakia took no
action. In the meanwhile, the Commission of the European Communities
had offered to mediate and, during a meeting of the two parties with the
Commission held in London on 28 October 1992, the parties entered into
a series of interim undertakings. They principally agreed that the dispute
would be submitted to the International Court of Justice, that a tripartite
fact-finding mission should report on Variant C not later than 31 Octo-
ber, and that a tripartite group of independent experts would submit sug-
gestions as to emergency measures to be taken.
25. On 1 January 1993 Slovakia became an independent State. On
7 April 1993, the "Special Agreement for Submission to the International
Court of Justice of the Differences between the Republic of Hungary and
the Slovak Republic concerning the GabEikovo-Nagymaros Project" was
signed in Brussels, the text of which is reproduced in paragraph 2 above.
After the Special Agreement was notified to the Court, Hungary informed
the Court, by a letter dated 9 August 1993, that it considered its "initial
Application [to bel now without object, and . . . lapsed".
According to Article 4 of the Special Agreement, "The Parties [agreed]
that, pending the final Judgment of the Court, they [would] establish and
implement a temporary water management régime for the Danube."
However, this régime could not easily be settled. The filling of the
~ u n o v odam had rapidly led to a major reduction in the flow and in the
level of the downstream waters in the old bed of the Danube as well as in
the side-arms of the river. On 26 August 1993, Hungary and Slovakia
reached agreement on the setting up of a tripartite group of experts (one
expert designated by each party and three independent experts designated
by the Commission of the European Communities)
"In order to provide reliable and undisputed data on the most
important effects of the current water discharge and the remedial
measures already undertaken as well as to make recommendations
for appropriate measures."
On 1 December 1993, the experts designated by the Commission of the
European Communities recommended the adoption of various measures
to remedy the situation on a temporary basis. The Parties were unable to
agree on these recommendations. After lengthy negotiations, they finally
concluded an Agreement "concerning Certain Temporary Technical Meas-
ures and Discharges in the Danube and Mosoni branch of the Danube",
PROJECT (JUDGMENT)
on 19 April 1995. That Agreement raised the discharge of water into the
Mosoni Danube to 43 m3/s. It provided for an annual average of 400 m3/s
in the old bed (not including flood waters). Lastly, it provided for the con-
struction by Hungary of a partially underwater weir near to Dunakiliti
with a view to improving the water supply to the side-arms of the Danube
on the Hungarian side. It was specified that this temporary agreement
would come to an end 14 days after the Judgment of the Court.
26. The first subparagraph of the Preamble to the Special Agreement

covers the disputes arising between Czechoslovakia and Hungary con-
cerning the application and termination, not only of the 1977 Treaty, but
also of "related instruments"; the subparagraph specifies that, for the
purposes of the Special Agreement, the 1977 Treaty and the said instru-
ments shall be referred to as "the Treaty". "The Treaty" is expressly
referred to in the wording of the questions submitted to the Court in
Article 2, paragraph 1, subparagraphs (a) and ( c i , of the Special
Agreement.
The Special Agreement however does not define the concept of "related
instruments", nor does it list them. As for the Parties, they gave some
consideration to that question - essentially in the written proceedings -
without reaching agreement as to the exact meaning of the expression or
as to the actual instruments referred to. The Court notes however that
the Parties seemed to agree to consider that that expression covers at
least the instruments linked to the 1977 Treaty which implement it, such
as the Agreement on mutual assistance of 16 September 1977 and its
amending Protocols dated, respectively, 10 October 1983 and 6 February
1989 (see paragraph 21 above), and the Agreement as to the common
operational regulations of Plenipotentiaries fulfilling duties related to the
construction and operation of the Gabtikovo-Nagymaros Barrage Sys-
tem signed in Bratislava on 1 1 October 1979. The Court notes that Hun-
gary, unlike Slovakia, declined to apply the description of related instru-
ments to the 1977 Treaty to the Joint Contractual Plan (see paragraph 19
above), which it refused to see as "an agreement at the same level as the
other . . . related Treaties and inter-State agreements".
Lastly the Court notes that the Parties, in setting out the replies which
should in their view be given to the questions put in the Special Agree- ,
ment, concentrated their reasoning on the 1977 Treaty; and that they
would appear to have extended their arguments to "related instruments"
in considering them as accessories to a whole treaty system, whose fate
was in principle linked to that of the main part, the 1977 Treaty. The
Court takes note of the positions of the Parties and considers that it does
not need to go into this matter further at this juncture.
PROJECT (JUDGMENT)
27. The Court will now turn to a consideration of the questions

submitted by the Parties. In terms of Article 2, paragraph 1 ( a ) , of the
Special Agreement, the Court is requested to decide first
"whether the Republic of Hungary was entitled to suspend and sub-
sequently abandon, in 1989, the works on the Nagymaros Project
and on the part of the GabCikovo Project for which the Treaty
attributed responsibility to the Republic of Hungary".
28. The Court would recall that the Gabrikovo-Nagymaros System of
Locks is characterized in Article 1, paragraph 1, of the 1977 Treaty as a
"single and indivisible operational system of works".
The principal works which were to constitute this system have been
described in general terms above (see paragraph 18). Details of them are
given in paragraphs 2 and 3 of Article 1 of the Treaty.
For GabMkovo, paragraph 2 lists the following works:
" ( a ) the Dunakiliti-HruSov head-water installations in the Danube
sector a t r.km. (river kilometre(s)) 1860-1842, designed for a
maximum flood stage of 131.10 m.B. (metres above sea-level.
Baltic system), in Hungarian and Czechoslovak territory;
( 6 ) the Dunakiliti dam and auxiliary navigation lock at r.km.

1842, in Hungarian territory ;
( c ) the by-pass canal (head-water canal and tail-water canal) at
r.km. 1842-18 1 1, in Czechoslovak territory ;
(rl) series of locks on the by-pass canal, in Czechoslovak territory,
consisting of a hydroelectric power plant with installed capa-
city of 720 MW, double navigation locks and appurtenances
thereto ;
( e l improved old bed of the Danube at r.km. 1842-1811, in the
joint Hungarian-Czechoslovak section;
( f ) deepened and regulated bed of the Danube at r.km. 1811-
1791, in the joint Hungarian-Czechoslovak section."
For Nagymaros, paragraph 3 specifies the following works:
" ( a ) head-water installations and flood-control works in the
Danube sector at r.km. 1791-1696.25 and in the sectors of
tributaries affected by flood waters, designed for a maximum
flood stage of 107.83 m.B., in Hungarian and Czechoslovak
territory;
( 6 ) series of locks at r.km. 1696.25, in Hungarian territory, con-

sisting of a dam, a hydroelectric power plant with installed
capacity of 158 MW, double navigation locks and appur-
tenances thereto;
( c i deepened and regulated bed of the Danube, in both its
branches, at r.km. 1696.25-1657, in the Hungarian section."
29. Moreover, the precise breakdown of the works incumbent on each

party was set out in Article 5, paragraph 5, of the 1977 Treaty, as fol-
lows:
"5. The labour and supplies required for the realization of the
joint investment shall be apportioned between the Contracting
Parties in the following manner:
(a) The Czechoslovak Party shall be responsible for:
(1) the Dunakiliti-HruSov head-water installations on the left
bank, in Czechoslovak territory ;
(2) the head-water canal of the by-pass canal, in Czecho-
slovak territory ;
(3) the GabCikovo series of locks, in Czechoslovak territory ;
(4) the flood-control works of the Nagymaros head-water
installations, in Czechoslovak territory, with the exception
of the lower Ipel district;
(5) restoration of vegetation in Czechoslovak territory;
(b) The Hungarian Party shall be responsible for

(1) the Dunakiliti-HruSov head-water installations on the
right bank, in Czechoslovak territory, including the con-
necting weir and the diversionary weir;
(2) the Dunakiliti-HruSov head-water installations on the
right bank, in Hungarian territory ;
(3) the Dunakiliti dam, in Hungarian territory;
(4) the tail-water canal of the by-pass canal, in Czechoslovak
territory;
( 5 ) deepening of the bed of the Danube below Palkovicovo,
in Hungarian and Czechoslovak territory ;
(6) improvement of the old bed of the Danube, in Hungarian
and Czechoslovak territory ;
(7) operational equipment of the GabCikovo system of locks
(transport equipment, maintenance machinery), in Czecho-
slovak territory ;
installations in the lower Ipel district, in Czechoslovak
territory ;
installations, in Hungarian territory;
(10) the Nagymaros series of locks, in Hungarian territory;
(11) deepening of the tail-water bed below the Nagymaros
system of locks, in Hungarian territory;
(12) operational equipment of the Nagymaros system of locks
(transport equipment, maintenance machinery), in Hun-
garian territory ;
(13) restoration of vegetation in Hungarian territory."
PROJECT (JUDGMENT)
30. As the Court has already indicated (see paragraph 18 above), Ar-
ticle 1, paragraph 4, of the 1977 Treaty stipulated in general terms that
the "technical specifications" concerning the System of Locks would be
included in the "ioint contractual dan". The schedule of work had for its
part been fixed in an Agreement on mutual assistance signed by the two
parties on 16 September 1977 (see paragraph 21 above). In accordance
with the provisions of Article 1, paragraph 1, of that Agreement, the
whole of the works of the barrage
. + svstem
, were to have been comoleted in
1991. As indicated in paragraph 2 of that same article, a summary con-
struction schedule was appended to the Agreement, and provision was
made for a more detailed schedule to be worked out in the Joint Con-
tractual Plan. The Agreement of 16 September 1977 was twice amended
further. By a Protocol signed on 10 October 1983, the parties agreed first
to postpone the works and the putting into operation of the power plants
for four more years; then, by a Protocol signed on 6 February 1989, the
parties decided, conversely, to bring them forward by 15 months, the
whole system having to be operational in 1994. A new summary con-
struction schedule was appended to each of those Protocols; those sched-
ules were in turn t o be implemented by means of new detailed schedules,
included in the Joint Contractual Plan.
31. In spring 1989, the work on the GabCikovo sector was well
advanced: the Dunakiliti dam was 90 per cent complete, the Gabëikovo
dam was 85 per cent complete, and the bypass canal was between 60 per
cent complete (downstream of Gabcikovo) and 95 per cent complete
(upstream of GabCikovo) and the dykes of the Dunakiliti-HruSov reser-
voir were between 70 and 98 per cent complete, depending on the loca-
tion. This was not the case in the Nagymaros sector where, although
dykes had been built, the only structure relating to the dam itself was the
coffer-dam which was to facilitate its construction.
32. In the wake of the profound political and economic changes which
occurred at this time in central Europe, the Gabcikovo-Nagymaros
Project was the object, in Czechoslovakia and more particularly in Hun-
gary, of increasing apprehension, both within a section of public opinion
and in some scientific circles. The uncertainties not only about the eco-
nomic viability of the Project, but also, and more so, as to the guarantees
it offered for preservation of the environment, engendered a climate of
growing concern and opposition with regard to the Project.
33. It was against this background that, on 13 May 1989, the Govern-
ment of Hungary adopted a resolution to suspend works at Nagymaros,
and ordered
"the Ministers concerned to commission further studies in order to

place the Council of Ministers in a position where it can make well-
founded suggestions to the Parliament in connection with the amend-
ment of the international treaty on the investment. In the interests of
32 GABC~KOVO-NAGYMAROS PROJECT (JUDGMENT)
the above, we must examine the international and legal conse-

quences, the technical considerations, the obligations related to con-
tinuous navigation on the Danube and the environmental/ecological
and seismic impacts of the eventual stopping of the Nagymaros
investment. To be further examined are the opportunities for the
replacement of the lost electric energy and the procedures for mini-
mising claims for compensation."
The suspension of the works at Nagymaros was intended to last for the
duration of these studies, which were to be completed by 31 July 1989.
Czechoslovakia immediately protested and a document defining the posi-
tion of Czechoslovakia was transmitted to the Ambassador of Hungary
in Prague on 15 May 1989. The Prime Ministers of the two countries met
on 24 May 1989, but their talks did not lead to any tangible result. On
2 June, the Hungarian Parliament authorized the Government to begin
negotiations with Czechoslovakia for the purpose of modifying the 1977
Treaty.
34. At a meeting held by the Plenipotentiaries on 8 and 9 June 1989,
Hungary gave Czechoslovakia a number of assurances concerning the
continuation of works in the GabCikovo sector, and the signed Protocol
which records that meeting contains the following passage:
"The Hungarian Government Commissioner and the Hungarian
Plenipotentiary stated, that the Hungarian side will complete con-
struction of the GabCikovo Project in the agreed time and in accord-
ance with the project plans. Directives have already been given to
continue works suspended in the area due to misunderstanding."
These assurances were reiterated in a letter that the Commissioner of the

Government of Hungary addressed to the Czechoslovak Plenipotentiary
on 9 June 1989.
3.5. With regard to the suspension of work at Nagymaros, the Hungar-
ian Deputy Prime Minister, in a letter dated 24 June 1989 addressed to his
Czechoslovak counterpart, expressed himself in the following terms:
"The Hungarian Academy of Sciences (HAS) has studied the envi-
ronmental, ecological and water quality as well as the seismological
impacts of abandoning or implementing the Nagymaros Barrage of
the GabCikovo-Nagymaros Barrage System (GNBS).
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Having studied the expected impacts of the construction in accord-
ance with the original plan, the Committee [ad hoc] of the Academy
[set up for this purpose] came to the conclusion that we do not have
adequate knowledge of the consequences of environmental risks.
In its opinion, the risk of constructing the Barrage System in
accordance with the original plan cannot be considered acceptable.
Of course, it cannot be stated either that the adverse impacts will
ensue for certain, therefore, according t o their recommendation,

further thorough and time consuming studies are necessary."
36. The Hungarian and Czechoslovak Prime Ministers met again on

20 July 1989 to n o avail. lmmediately after that meeting, the Hungarian
Government adopted a second resolution, under which the suspension of
work at Nagymaros was extended to 31 October 1989. However, this
resolution went further, as it also prescribed the suspension, until the
same date, of the "Preparatory works on the closure of the riverbed at
. . . Dunakiliti"; the purpose of this measure was to invite "international
scientific institutions [and] foreign scientific institutes and experts" to co-
operate with "the Hungarian and Czechoslovak institutes and experts"
with a view to a n assessment of the ecological impact of the Project and
the "development of a technical and operational water quality guarantee
system and . . . its implementation".
37. In the ensuing period, negotiations were conducted at various levels
between the two States, but proved fruitless. Finally, by a letter dated
4 October 1989, the Hungarian Prime Minister formally proposed to
Czechoslovakia that the Nagymaros sector of the Project be abandoned
and that a n agreement be concluded with a view to reducing the ecologi-
cal risks associated with the Gabëikovo sector of the Project. He pro-
posed that that agreement should be concluded before 30 July 1990.
The two Heads of Government met on 26 October 1989, and were
unable to reach agreement. By a Note Verbale dated 30 October 1989,
Czechoslovakia, confirming the views it had expressed during those talks,
proposed to Hungary that they should negotiate a n agreement on a sys-
tem of technical, operational and ecological guarantees relating to the
Gabëikovo-Nagymaros Project, "on the assumption that the Hungarian
party will immediately commence preparatory work on the refilling of the
Danube's bed in the region of Dunakiliti". It added that the technical
principles of the agreement could be initialled within two weeks and that
the agreement itself ought to be signed before the end of March 1990.
After the principles had been initialled, Hungary "[was to] start the actual
closure of the Danube bed". Czechoslovakia further stated its willingness
to "conclu[de] . . . a separate agreement in which both parties would
oblige themselves to limitations o r exclusion of peak hour operation
mode of the . . . System". It also proposed "to return to deadlines indi-
cated in the Protocol of October 1983", the Nagymaros construction
deadlines being thus extended by 15 months, so as to enable Hungary to
take advantage of the time thus gained to study the ecological issues and
formulate its own proposais in due time. Czechoslovakia concluded by
announcing that, should Hungary continue unilaterally to breach the
Treaty, Czechoslovakia would proceed with a provisional solution.
In the meantime, the Hungarian Government had on 27 October

adopted a further resolution, deciding to abandon the construction of the
Nagymaros dam and to leave in place the measures previously adopted
for suspending the works at Dunakiliti. Then, by Notes Verbales dated
3 and 30 November 1989, Hungary proposed to Czechoslovakia a draft
treaty incorporating its earlier proposals, relinquishing peak power opera-
tion of the Gabëikovo power plant and abandoning the construction of
the Nagymaros dam. The draft provided for the conclusion of an agree-
ment on the completion of Gabëikovo in exchange for guarantees on
protection of the environment. It finally envisaged the possibility of one
or other party seising an arbitral tribunal or the International Court of
Justice in the event that differences of view arose and persisted between
the two Governments about the construction and operation of the Gab-
Cikovo dam, as well as measures to be taken to protect the environment.
Hungary stated that it was ready to proceed immediately "with the pre-
paratory operations for the Dunakiliti bed-decanting", but specified that
the river would not be dammed at Dunakiliti until the agreement on
guarantees had been concluded.
38. During winter 1989-1990, the political situation in Czechoslovakia
and Hungary alike was transformed, and the new Governments were
confronted with many new problems.
In spring 1990. the new Hungarian Government, in presenting its
National Renewal Programme, announced that the whole of the Gab-
ëikovo-Nagymaros Project was a "mistake" and that it would initiate
negotiations as soon as possible with the Czechoslovak Government "on
remedying and sharing the damages". On 20 December 1990, the Hun-
garian Government adopted a resolution for the opening of negotiations
with Czechoslovakia on the termination of the Treatv, bv, mutual consent
and the conclusion of an agreement addressing the consequences of the
termination. On 15 February 1991, the Hungarian Plenipotentiary trans-
mitted a draft agreement along those lines to his Czechoslovak counter-
part.
On the same day, the Czechoslovak President declared that the Gab-
Cikovo-Nagymaros Project constituted a "totalitarian, gigomaniac monu-
ment which is against nature", while emphasizing that "the problem [was]
that [the Gabëikovo power plant] [had] already been built". For his part,
the Czechoslovak Minister of the Environment stated, in a speech given
to Hungarian parliamentary committees on 1 1 September 1991, that "the
G/N Project [was] an old, obsolete one", but that, if there were "many
reasons to change, modify the treaty . . . it [was] not acceptable to cancel
the treaty . . . and negotiate later on".
During the ensuing period, Hungary refrained from completing the
work for which it was still responsible at Dunakiliti. Yet it continued to
maintain the structures it had already built and, at the end of 1991, com-
pleted the works relating to the tailrace canal of the bypass canal assigned
to it under Article 5, paragraph 5 (b), of the 1977 Treaty.
39. The two Parties to this case concur in recognizing that the 1977
Treaty, the above-mentioned Agreement on mutual assistance of 1977
and the Protocol of 1989 were validly concluded and were duly in force
when the facts recounted above took place.
Further, they do not dispute the fact that, however flexible they may
have been, these texts did not envisage the possibility of the signatories
unilaterally suspending or abandoning the work provided for therein, or
even carrying it out according to a new schedule not approved by the two
partners.
40. Throughout the proceedings, Hungary contended that, although it
did suspend or abandon certain works, on the contrary, it never sus-
pended the application of the 1977 Treaty itself. To justify its conduct, it
relied essentially on a "state of ecological necessity".
Hungary contended that the various installations in the GabEikovo-

Nagymaros System of Locks had been designed to enable the Gabtikovo
power plant to operate in peak mode. Water would only have come
through the plant twice each day, at times of peak power demand. Opera-
tion in peak mode required the vast expanse (60 km') 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 down-
Stream of Gabtikovo. 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 GabMkovoi
Dunakiliti, under the original Project, as specified in the Joint Contrac-
tua1 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 circum-
stances, the groundwater level would have fallen in most of the Szigetkoz.
Furthermore, the groundwater would then no longer have been supplied
by the Danube - which, on the contrary, would have acted as a drain -
but by the reservoir of stagnant water at Dunakiliti and the side-arms
which would have become silted up. In the long term, the quality of water
would have been seriously impaired. As for the surface water, risks of
eutrophication would have arisen, particularly in the reservoir; instead of
the old Danube there would have been a river choked with sand, where
only a relative trickle of water would have flowed. The network of arms
would have been for the most part cut off from the principal bed. The
fluvial fauna and flora, like those in the alluvial plains, would have been
condemned to extinction.
As for Nagymaros, Hungary argued that, if that dam had been built,
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 Gabëikovo
power plant in peak mode would have occasioned significant daily varia-
tions in the water level in the reservoir upstream, which would have con-
stituted a threat to aquatic habitats in particular. Furthermore, the con-
struction 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 two-
fold reason, the quality of the infiltrating water would have been severely
jeopardized.
From al1 these predictions, in support of which it quoted a variety of
scientific studies, Hungary concluded that a "state of ecological neces-
sitv" did indeed exist in 1989.
41. In its written pleadings, Hungary also accused Czechoslovakia of
having violated various provisions of the 1977 Treaty from before 1989
- in particular Articles 15 and 19 relating, respectively, to water quality
and nature protection - in refusing to take account of the now evident
ecological dangers and insisting that the works be continued, notably at
Nagymaros. In this context Hungary contended that, in accordance with
the terms of Article 3, paragraph 2, of the Agreement of 6 May 1976 con-
cerning the Joint Contractual Plan, Czechoslovakia bore responsibility
for research into the Project's impact on the environment; Hungary
stressed that the research carried out by Czechoslovakia had not been
conducted adequately, the potential effects of the Project on the environ-
ment of the construction having been assessed by Czechoslovakia only
from September 1990. However, in the final stage of its argument, Hun-
gary does not appear to have sought to formulate this complaint as an
independent ground formally justifying the suspension and abandonment
of the works for which it was responsible under the 1977 Treaty. Rather,
it presented the violations of the Treaty prior to 1989, which it imputes to
Czechoslovakia, as one of the elements contributing to the emergence of
a state of necessity.
42. Hungary moreover contended from the outset that its conduct in
the present case should not be evaluated only in relation to the law of
treaties. It also observed that, in accordance with the provisions of
Article 4, the Vienna Convention of 23 May 1969 on the Law of Treaties
could not be applied to the 1977 Treaty, which was concluded before that
Convention entered into force as between the parties. Hungary has
indeed acknowledged, with reference to the jurisprudence of the Court,
that in many respects the Convention reflects the existing customary law.
Hungary nonetheless stressed the need to adopt a cautious attitude, while
37 GABCIKOVO-NACYMAROS PROJECT (JUDGMENT)
suggesting that the Court should consider, in each case, the conformity of
the prescriptions of the Convention with customary international law.
43. Slovakia, for its part, denied that the basis for suspending o r aban-
doning the performance of a treaty obligation can be found outside the
law of treaties. It acknowledged that the 1969 Vienna Convention could
not be applied as such to the 1977 Treaty, but at the same time stressed
that a number of its provisions are a reflection of pre-existing rules of
customary international law and specified that this is, in particular, the
case with the provisions of Part V relating to invalidity, termination and
suspension of the operation of treaties. Slovakia has moreover observed
that, after the Vienna Convention had entered into force for both parties,
Hungary affirmed its accession to the substantive obligations laid down
by the 1977 Treaty when it signed the Protocol of 6 February 1989 that
cut short the schedule of work: and this led it to conclude that the Vienna
Convention was applicable to'the "contractual legal régime" constituted
by the network of interrelated agreements of which the Protocol of 1989
was a part.
44. In the course of the proceedings, Slovakia argued at length that the
state of necessity upon which Hungary relied did not constitute a reason
for the suspension of a treaty obligation recognized by the law of treaties.
At the same time, it cast doubt upon whether "ecological necessity" or
"ecological risk" could, in relation to the law of State responsibility, con-
stitute a circumstance precluding the wrongfulness of a n act.
In any event, Slovakia denied that there had been any kind of "eco-
logical state of necessity" in this case either in 1989 o r subsequently. It
invoked the authority of various scientific studies when it claimed that
Hungary had given an exaggeratedly pessimistic description of the situa-
tion. Slovakia did not, of course, deny that ecological problems could
have arisen. However, it asserted that they could to a large extent have
been remedied. It accordingly stressed that no agreement had been
reached with respect to the modalities of operation of the GabCikovo
power plant in peak mode, and claimed that the apprehensions of Hun-
gary related only to operating conditions of a n extreme kind. In the same
way, it contended that the original Project had undergone various modi-
fications 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, o r 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 dia,
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 respon-
sibility 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 uni-
lateral measures of suspension and abandonment of the works in viola-
tion of the provisions of Article 27 of the 1977 Treaty (see paragraph 18
above), which it submits required prior recourse to the machinery for dis-
pute settlement provided for in that Article.
46. The Court has n o need to dwell upon the question of the applica-
bility in the present case of the Vienna Convention of 1969 on the Law of
Treaties. It needs only to be mindful of the fact that it has several times
had occasion to hold that some of the rules laid down in that Convention
might be considered as a codification of existing customary law. The
Court takes the view that in many respects this applies to the provisions
of the Vienna Convention concerning the termination and the suspension
of the operation of treaties, set forth in Articles 60 to 62 (see Legal Con-
seyuences for States o f t h e Continued Presence of South Afiicu in Namibia
(South West Ajrica) not1vithstunding Security Council Resolution 276
(1970), Advisory Opinion, I.C.J. Reports. 1971, p. 47, and Fisheries
Jurisdiction (United Kingdom v. Iceland), Jurisdiction of the Court,
Judgment, I.C.J. Reports 1973, p. 1 8 ; see also Interpretation qf the
Agreement of 25 Murch 1951 hetitjeen the W H O and Egypt, Advisory
Opinion, 1.C.J. Reports 1980, pp. 95-96).
Neither has the Court lost sight of the fact that the Vienna Convention
is in any event applicable to the Protocol of 6 February 1989 whereby
Hungary and Czechoslovakia agreed to accelerate completion of the
works relating to the GabEikovo-Nagymaros Project.
47. Nor does the Court need to dwell upon the question of the rela-
tionship between the law of treaties and the law of State responsibility, to
which the Parties devoted lengthy arguments, as those two branches of
international law obviously have a scope that is distinct. A determination
of whether a convention is o r is not in force, and whether it has or has
not been properly suspended o r denounced, is to be made pursuant to the
law of treaties. O n the other hand, a n evaluation of the extent to which
the suspension o r denunciation of a convention, seen as incompatible
with the law of treaties, involves the responsibility of the State which pro-
ceeded to it, is to be made under the law of state responsibility.
Thus the Vienna Convention of 1969 on the Law of Treaties confines

itself to defining - in a limitative manner - the conditions in which a
treaty may lawfully be denounced o r suspended; while the effects of a
denunciation or suspension seen as not meeting those conditions are, on
the contrary, expressly excluded from the scope of the Convention by
operation of Article 73. It is moreover well established that, when a State
has committed an internationally wrongful act, its international respon-
sibility is likely to be involved whatever the nature of the obligation it
has failed to respect (cf. Interpretation of Peuce Treaties ivith Bulgaria,
Hungarp and Romania, Second Phase, Advisory Opinion, 1.C.J. Reports
1950, p. 228; and see Article 17 of the Draft Articles on State Responsi-
PROJECT (JUDGMENT)
bility provisionally adopted by the International Law Commission on

first reading, Yearbook of the International Law Commission, 1980,
Vol. I I , Part 2, p. 32).
48. The Court cannot accept Hungary's argument to the effect that, in
1989, in suspending and subsequently abandoning the works for which it
was still responsible at Nagymaros and at Dunakiliti, it did not, for al1
that, suspend the application of the 1977 Treaty itself or then reject that
Treaty. The conduct of Hungary at that time can only be interpreted as
an expression of its unwillingness to comply with at least some of the pro-
visions of the Treaty and the Protocol of 6 February 1989, as specified in
the Joint Contractual Plan. The effect of Hungary's conduct was to
render impossible the accomplishment of the system of works that the
Treaty expressly described as "single and indivisible".
The Court moreover observes that, when it invoked the state of neces-
sity in an effort to justify that conduct, Hungary chose to place itself
from the outset within the ambit of the law of State responsibility,
thereby implying that, in the absence of such a circumstance, its conduct
would have been unlawful. The state of necessity claimed by Hungary -
supposing it to have been established - thus could not permit of the con-
clusion that, in 1989, it had acted in accordance with its obligations
under the 1977 Treaty or that those obligations had ceased to be binding
upon it. It would only permit the affirmation that, under the circum-
stances, Hungary would not incur international responsibility by acting
as it did. Lastly, the Court points out that Hungary expressly acknow-
ledged that, in any event, such a state of necessity would not exempt it
from its duty to compensate its partner.
49. The Court will now consider the question of whether there was, in
1989, a state of necessity which would have permitted Hungary, without
incurring international responsibility, to suspend and abandon works
that it was committed to perform in accordance with the 1977 Treaty and
related instruments.
50. In the present case, the Parties are in agreement in considering that
the existence of a state of necessity must be evaluated in the light of the
criteria laid down by the International Law Commission in Article 33 of
the Draft Articles on the International Responsibility of States that it
adopted on first reading. That provision is worded as follows:
"Article 33. Stufe of' Necrssify
1. A state of necessity may not be invoked by a State as a ground
for precluding the wrongfulness of an act of that State not in con-
formity with an international obligation of the State unless:
( a ) the act was the only means of safeguarding an essential interest
of the State against a grave and imminent peril; and
( 6 ) the act did not seriously impair an essential interest of the State
towards which the obligation existed.
2. In any case, a state of necessity may not be invoked by a State
as a ground for precluding wrongfulness:
( a ) if the international obligation with which the act of the State is
not in conformity arises out of a peremptory norm of general
international law; or
( b ) if the international obligation with which the act of the State is
not in conformity is laid down by a treaty which, explicitly or
implicitly, excludes the possibility of invoking the state of neces-
sity with respect to that obligation; or
(c) if the State in question has contributed to the occurrence of the
state of necessity." (Yearbook of the International Laiv Com-
mission, 1980, Vol. II, Part 2, p. 34.)
In its Commentary, the Commission defined the "state of necessity" as
being
"the situation of a State whose sole means of safeguarding an essen-
tial interest threatened by a grave and imminent peril is to adopt
conduct not in conformity with what is required of it by an interna-
tional obligation to another State" (ibid., para. 1).
It concluded that "the notion of state of necessity is . . . deeply rooted in

general legal thinking" (ibid, p. 49, para. 31).
51. The Court considers, first of all, that the state of necessity is a
ground recognized by customary international law for precluding the
wrongfulness of an act not in conformity with an international obliga-
tion. It observes moreover that such ground for precluding wrongfulness
can only be accepted on an exceptional basis. The International Law
Commission was of the same opinion when it explained that it had opted
for a negative form of words in Article 33 of its Draft
"in order to show, by this formal means also, that the case of invoca-
tion of a state of necessity as a justification must be considered as
really constituting an exception - and one even more rarely admis-
sible than is the case with the other circumstances precluding wrong-
fulness . . ." (ibid, p. 51, para. 40).
Thus, according to the Commission, the state of necessity can only be
invoked under certain strictly defined conditions which must be cumula-
tively satisfied; and the State concerned is not the sole judge of whether
those conditions have been met.
52. In the present case, the following basic conditions set forth in
Draft Article 33 are relevant: it must have been occasioned by an "essen-
tial interest" of the State which is the author of the act conficting with
one of its international obligations; that interest must have been threat-
ened by a "grave and imminent peril"; the act being challenged must
have been the "only means" of safeguarding that interest; that act must
not have "seriously impair[ed] an essential interest" of the State towards
which the obligation existed; and the State which is the author of that act
must not have "contributed to the occurrence of the state of necessity".
Those conditions reflect customary international law.
The Court will now endeavour to ascertain whether those conditions
had been met a t the time of the suspension and abandonment, by Hun-
gary, of the works that it was to carry out in accordance with the 1977
Treaty.
53. The Court has no difficulty in acknowledging that the concerns
expressed by Hungary for its natural environment in the region affected
by the Gabtikovo-Nagymaros Project related to an "essential interest" of
that State, within the meaning given to that expression in Article 33 of
the Draft of the International Law Commission.
The Commission, in its Commentary, indicated that one should not, in

that context, reduce an "essential interest" to a matter only of the "exist-
ence" of the State, and that the whole question was, ultimately, to be
judged in the light of the particular case (see Yeurbook of the Internu-
tionul Luiv Commission, 1980, Vol. I I , Part 2, p. 49, para. 32); at the
same time, it included among the situations that could occasion a state of
necessity, "a grave danger to . . . the ecological preservation of al1 or
some of [the] territory [of a State]" ( i b i d , p. 35, para. 3); and specified,
with reference to State practice, that "It is primarily in the last two
decades that safeguarding the ecological balance has come to be con-
sidered an 'essential interest' of al1 States." (Ibid., p. 39, para. 14.)
The Court recalls that it has recently had occasion to stress, in the fol-
lowing terms, the great significance that it attaches to respect for the envi-
ronment, not only for States but also for the whole of mankind:
"the environment is not an abstraction but represents the living

space, the quality of life and the very health of human beings,
including generations unborn. The existence of the general obliga-
tion of States to ensure that activities within their jurisdiction and
control respect the environment of other States or of areas beyond
national control is now part of the corpus of international law relat-
ing to the environment." (Legality of the Threut or Use of Nuclear
Weapons, Advisoty Opinion, I. C.J. Reports 1996, pp. 241 -242,
para. 29.)
54. The verification of the existence, in 1989, of the "peril" invoked by

Hungary, of its "grave and imminent" nature, as well as of the absence of
any "means" to respond to it, other than the measures taken by Hungary
to suspend and abandon the works, are al1 complex processes.
As the Court has already indicated (see paragraphs 33 et seq.),

Hungary on several occasions expressed, in 1989, its "uncertainties" as to
the ecological impact of putting in place the GabCikovo-Nagymaros bar-
rage system, which is why it asked insistently for new scientific studies to
be carried out.
The Court considers, however, that, serious though these uncertainties

might have been they could not, alone, establish the objective existence of
a "peril" in the sense of a component element of a state of necessity. The
word "Deril" certainlv evokes the idea of "risk": that is vreciselv what
distinguishes "peril" from material damage. But a state of necessity could
not exist without a "Deril" dulv established a t the relevant oint in time:
the mere apprehensi'on of a Possible "peril" could not Affice in that
remect. It could moreover hardlv be otherwise. when the " ~ e r i l "consti-
tuting the state of necessity has at the same time to be "grave" and
"imminent". "Imminence" is synonymous with "immediacy" or "proxim-
ity" and goes far beyond the concept of "possibility". As the Interna-
tional Law Commission em~hasizedin its commentarv. ,, the "extremelv
grave and imminent" peril must "have been a threat to the interest at
the actual time" (Yearbook of the International Laiv Commission, 1980,
Vol. I I , Part 2, p. 49, para. 33). That does not exclude, in the view of the
Court, that a "peril" appearing in the long term might be held to be
"imminent" as soon as it is established, at the relevant point in time, that
the realization of that peril, however far off it might be, is not thereby
any less certain and inevitable.
The Hungarian argument on the state of necessity could not convince
the Court unless it was a t least proven that a real, "grave" and "immi-
nent" "peril" existed in 1989 and that the measures taken by Hungary
were the only possible response to it.
Both Parties have placed on record an impressive amount of scientific
material aimed a t reinforcing their respective arguments. The Court has
given most careful attention to this material, in which the Parties have
developed their opposing views as to the ecological consequences of the
Project. It concludes, however, that, as will be shown below, it is not
necessary in order to respond to the questions put to it in the Special
Agreement for it to determine which of those points of view is scienti-
fically better founded.
55. The Court will begin by considering the situation at Nagymaros.
As has already been mentioned (see paragraph 40), Hungary maintained
that, if the works at Nagymaros had been carried out as planned, the
environment - and in particular the drinking water resources - in the
area would have been exposed to serious dangers on account of problems
linked to the upstream reservoir on the one hand and, on the other, the
risks of erosion of the riverbed downstream.
The Court notes that the dangers ascribed to the upstream reservoir
were mostly of a long-term nature and, above all, that they remained un-
certain. Even though the Joint Contractual Plan envisaged that the Gab-
Eikovo power plant would "mainly operate in peak-load time and con-
tinuously during high water", the final rules of operation had not yet
been determined (see paragraph 19 above); however, any dangers asso-
ciated with the putting into service of the Nagymaros portion of the
Project would have been closely linked to the extent to which it was oper-
ated in peak mode and to the modalities of such operation. It follows
that, even if it could have been established - which, in the Court's
appreciation of the evidence before it, was not the case - that the reser-
voir would ultimately have constituted a "grave peril" for the environ-
ment in the area, one would be bound to conclude that the peril was not
"imminent" at the time a t which Hungary suspended and then aban-
doned the works relating to the dam.
With regard to the lowering of the riverbed downstream of the Nagy-

maros dam, the danger could have appeared at once more serious and
more pressing, in so far as it was the supply of drinking water to the city
of Budapest which would have been affected. The Court would however
point out that the bed of the Danube in the vicinity of Szentendre had
already been deepened prior to 1980 in order to extract building mater-
ials, and that the river had from that time attained, in that sector, the
depth required by the 1977 Treaty. The peril invoked by Hungary had
thus already materialized to a large extent for a number of years, so that
it could not, in 1989, represent a peril arising entirely out of the project.
The Court would stress, however, that, even supposing, as Hungary
maintained, that the construction and operation of the dam would have
created serious risks, Hungary had means available to it, other than the
suspension and abandonment of the works, of responding to that situa-
tion. It could for example have proceeded regularly to discharge grave1
into the river downstream of the dam. It could likewise, if necessary, have
supplied Budapest with drinking water by processing the river water in
a n appropriate manner. The two Parties expressly recognized that that
possibility remained open even though - and this is not determinative of
the state of necessity - the purification of the river water, like the other
measures envisaged, clearly would have been a more costly technique.
56. The Court now comes to the GabEikovo sector. It will recall that
Hungary's concerns in this sector related on the one hand to the quality
of the surface water in the Dunakiliti reservoir, with its effects on the
quality of the groundwater in the region, and on the other hand, more
generally, to the level, movement and quality of both the surface water
and the groundwater in the whole of the Szigetkoz, with their effects on
the Sauna and flora in the alluvial plain of the Danube (see paragraph 40
above).
Whether in relation to the Dunakiliti site or to the whole of the
Szigetkoz, the Court finds here again, that the peril claimed by Hungary
was to be considered in the long term, and, more importantly, remained
uncertain. As Hungary itself acknowledges, the damage that it appre-
hended had primarily to be the result of some relatively slow natural

processes, the effects of which could not easily be assessed.
Even if the works were more advanced in this sector than a t Nagy-
maros, they had not been completed in July 1989 and, as the Court
explained in paragraph 34 above, Hungary expressly undertook to carry
on with them, early in June 1989. The report dated 23 June 1989 by the
ud hoc Committee of the Hungarian Academy of Sciences, which was
also referred to in paragraph 35 of the present Judgment, does not
express any awareness of a n authenticated peril - even in the form of a
definite peril, whose realization would have been inevitable in the long
term - when it States that:
"The measuring results of a n at least five-year monitoring period
following the completion of the Gabtikovo construction are indis-
pensable to the trustworthy prognosis of the ecological impacts of
the barrage system. There is undoubtedly a need for the establish-
ment and regular operation of a comprehensive monitoring system,
which must be more developed than at present. The examination of
biological indicator objects that can sensitively indicate the changes
happening in the environment, neglected till today, have to be
included."
The report concludes as follows:

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

that, as a general rule, the quality of the Danube waters had improved
over the past 20 years, even if those waters remained subject to hyper-
trophic conditions.
However "grave" it might have been, it would accordingly have been
difficult, in the light of what is said above, to see the alleged peril as suf-
ficiently certain and therefore "imminent" in 1989.
The Court moreover considers that Hungary could, in this context
also, have resorted to other means in order to respond to the dangers that
it apprehended. In particular, within the framework of the original
Project, Hungary seemed to be in a position to control at least partially
the distribution of the water between the bypass canal, the old bed of the
Danube and the side-arms. It should not be overlooked that the Dunakiliti
dam was located in Hungarian territory and that Hungary could con-
struct the works needed to regulate flows along the old bed of the Dan-
ube and the side-arms. Moreover, it should be borne in mind that
Article 14 of the 1977 Treaty provided for the possibility that each of the
parties might withdraw quantities of water exceeding those specified in
the Joint Contractual Plan, while making it clear that, in such an event,
"the share of electric power of the Contracting Party benefiting from the
excess withdrawal shall be correspondingly reduced".
57. The Court concludes from the foregoing that, with respect to both
Nagymaros and GabCikovo, the perils invoked by Hungary, without pre-
judging their possible gravity, were not sufficiently established in 1989,
nor were they "imminent"; and that Hungary had available to it at that
time means of responding to these perceived perils other than the suspen-
sion and abandonment of works with which it had been entrusted. What
is more, negotiations were under way which might have led to a review of
the Project and the extension of some of its time-limits, without there
being need to abandon it. The Court infers from this that the respect by
Hungary, in 1989, of its obligations under the terms of the 1977 Treaty
would not have resulted in a situation "characterized so aptly by the
maxim summum jus summa injuria" ( Yearbook of the International Law
Commission, 1980, Vol. II, Part 2, p. 49, para. 31).
Moreover, the Court notes that Hungary decided to conclude the 1977
Treaty, a Treaty which - whatever the political circumstances prevailing
at the time of its conclusion - was treated by Hungary as valid and in
force until the date declared for its termination in May 1992. As can be
seen from the material before the Court, a great many studies of a scien-
tific and technical nature had been conducted a t an earlier time, both by
Hungary and by Czechoslovakia. Hungary was, then, presumably aware
of the situation as then known, when it assumed its obligations under the
Treaty. Hungary contended before the Court that those studies had been
inadequate and that the state of knowledge at that time was not such as
to make possible a complete evaluation of the ecological implications of
the GabCikovo-Nagymaros Project. It is nonetheless the case that
although the principal object of the 1977 Treaty was the construction of
a System of Locks for the production of electricity, improvement of navi-
gation on the Danube and protection against flooding, the need to ensure
the protection of the environment had not escaped the parties, as can be
seen from Articles 15, 19 and 20 of the Treaty.
What is more, the Court cannot fail to note the positions taken by
Hungary after the entry into force of the 1977 Treaty. In 1983, Hungary
asked that the works under the Treaty should go forward more slowly,
for reasons that were essentially economic but also, subsidiarily, related
to ecological concerns. In 1989, when, according to Hungary itself, the
state of scientific knowledge had undergone a significant development, it
asked for the works to be speeded up, and then decided, three months
later, to suspend them and subsequently to abandon them. The Court is
not however unaware that profound changes were taking place in Hun-
gary in 1989, and that, during that transitory phase, it might have been
more than usually difficult to co-ordinate the different points of view pre-
vailing from time to time.
The Court infers from al1 these elements that, in the present case, even
if it had been established that there was. in 1989, a state of necessity
linked to the performance of the 1977 Treaty, Hungary would not have
been permitted to rely upon that state of necessity in order to justify its
failure to comply with its treaty obligations, as it had helped, by act or
omission to bring it about.
58. It follows that the Court has no need to consider whether Hun-
gary, by proceeding as it did in 1989, "seriously impair[ed] an essential
interest" of Czechoslovakia, within the meaning of the aforementioned
Article 33 of the Draft of the International Law Commission - a finding
which does not in any way prejudge the damage Czechoslovakia claims
to have suffered on account of the position taken by Hungary.
Nor does the Court need to examine the argument put forward by
Hungary, according to which certain breaches of Articles 15 and 19 of
the 1977 Treaty, committed by Czechoslovakia even before 1989, con-
tributed to the purported state of necessity; and neither does it have to
reach a decision on the argument advanced by Slovakia, according to
which Hungary breached the provisions of Article 27 of the Treaty,
in 1989, by taking unilateral measures without having previously
had recourse to the machinery of dispute settlement for which that
Article provides.
59. In the light of the conclusions reached above, the Court, in reply to
the question put to it in Article 2, paragraph 1 ( a ) , of the Special Agree-
ment (see paragraph 27 above), finds that Hungary was not entitled to
suspend and subsequently abandon, in 1989, the works on the Nagy-
maros Project and on the part of the GabEikovo Project for which the
1977 Treaty and related instruments attributed responsibility to it.
60. By the terms of Article 2, paragraph 1 ( h ) , of the Special Agree-

ment, the Court is asked in the second place to decide
"(6) whether the Czech and Slovak Federal Republic was entitled
to proceed, in November 1991, to the 'provisional solution'
GABCIKOVO-NAGYMAROS PROJECT (JUDGMENT)
and t o put into operation from October 1992 this system,

described in the Report of the Working Group of Independent
Experts of the Commission of the European Communities, the
Republic of Hungary and the Czech and Slovak Federal Repub-
lic dated 23 November 1992 (damming up of the Danube a t
river kilometre 1851.7 on Czechoslovak territory and resulting
consequences on water and navigation course)".
61. The Court will recall that, as soon as Hungary suspended the
works a t Nagymaros on 13 May 1989 and extended that suspension to
certain works to be carried out a t Dunakiliti, Czechoslovakia informed
Hungary that it would feel compelled to take unilateral measures if Hun-
gary were to persist in its refusa1 to resume the works. This was inter alia
expressed as follows in Czechoslovakia's Note Verbale of 30 October
1989 to which reference is made in paragraph 37 above:
"Should the Republic of Hungary fail to meet its liabilities and

continue unilaterally to breach the Treaty and related legal docu-
ments then the Czechoslovak party will be forced to commence a
provisional, substitute project on the territory of the Czechoslovak
Socialist Republic in order to prevent further losses. Such a provi-
sional project would entail directing as much water into the Gab-
tikovo dam as agreed in the Joint Construction Plan."
As the Court has already indicated (see paragraph 23), various
alternative solutions were contemplated by Czechoslovakia. In Septem-
ber 1990, the Hungarian authorities were advised of seven hypothetical
alternatives defined by the firm of Hydroconsult of Bratislava. All of
those solutions implied an agreement between the parties, with the excep-
tion of one variant, subsequently known as "Variant C", which was pre-
sented as a provisional solution which could be brought about without
Hungarian CO-operation.Other contacts between the parties took place,
without leading to a settlement of the dispute. In March 1991, Hungary
acquired information according to which perceptible progress had been
made in finalizing the planning of Variant C ; it immediately gave expres-
sion to the concern this caused.
62. Inter-governmental negotiation meetings were held on 22 April
and 15 July 1991.
On 22 April 1991, Hungary proposed the suspension, until September
1993, of al1 the works begun on the basis of the 1977 Treaty, on the
understanding that the parties undertook to abstain from any unilateral
action, and that joint studies would be carried out in the interval.
Czechoslovakia maintained its previous position according to which the
studies contemplated should take place within the framework of the 1977
Treaty and without any suspension of the works.
On 15 July 1991, Czechoslovakia confirmed its intention of putting the
GabEikovo power plant into service and indicated that the available data
enabled the effects of four possible scenarios to be assessed, each of them
requiring the co-operation of the two Governments. At the same time, it
proposed the setting up of a tripartite committee of experts (Hungary,
Czechoslovakia, European Communities) which would help in the search
for technical solutions to the problems arising from the entry into opera-
tion of the GabCikovo sector. Hungary, for its part, took the view that :
"In the case of a total lack of understanding the so-called C varia-

tion or 'theoretical opportunity' suggested by the Czecho-Slovak
party as a unilateral solution would be such a grave transgression of
Hungarian territorial integrity and International Law for which
there is no precedent even in the practices of the formerly socialist
countries for the past 30 years";
it further proposed the setting up of a bilateral committee for the assess-

ment of environmental consequences, subject to work on Czechoslovak
territory being suspended.
63. By a letter dated 24 July 1991, the Government of Hungary com-
municated the following message to the Prime Minister of Slovakia:
"Hungarian public opinion and the Hungarian Government
anxiously and attentively follows the [Czechoslovakian] press reports
of the unilateral steps of the Government of the Slovak Republic
in connection with the barrage system.
The preparatory works for diverting the water of the Danube near
the Dunakiliti dam through unilaterally are also alarming. These
steps are contrary to the 1977 Treaty and to the good relationship
between our nations."
On 30 July 1991 the Slovak Prime Minister informed the Hungarian

Prime Minister of
"the decision of the Slovak Government and of the Czech and Slo-
vak Federal Government to continue work on the GabEikovo power
plant, as a provisional solution, which is aimed at the commence-
ment of operations on the territory of the Czech and Slovak Federal
Republic".
On the same day, the Government of Hungary protested, by a Note Ver-
bale, against the filling of the headrace canal by the Czechoslovak con-
struction Company, by pumping water from the Danube.
By a letter dated 9 August 1991 and addressed to the Prime Minister of
Slovakia, the Hungarian authorities strenuously protested against "any
unilateral step that would be in contradiction with the interests of our
[two] nations and international law" and indicated that they considered it
"very important [to] receive information as early as possible on the
PROJECT (JUDGMENT)
details of the provisional solution". For its part, Czechoslovakia, in a

Note Verbale dated 27 August 1991, rejected the argument of Hungary
that the continuation of the works under those circumstances constituted
a violation of international law, and made the following proposal:
"Provided the Hungarian side submits a concrete technical solu-
tion aimed at putting into operation the Gabtikovo system of locks
and a solution of the system of locks based on the 1977 Treaty in
force and the treaty documents related to it, the Czechoslovak side is
prepared to implement the mutually agreed solution."
64. The construction permit for Variant C was issued Gn 30 October

199 1. In November 1991 construction of a dam started at Cunovo, where
both banks of the Danube are on Czechoslovak (now Slovak) territory.
In the course of a new inter-governmental negotiation meeting, on

2 December 1991, the parties agreed to entrust the task of studying the
whole of the question of the Gabtikovo-Nagymaros Project to a Joint
Expert Committee which Hungary agreed should be complemented with
an expert from the European Communities. However whereas, for Hun-
gary, the work of that Committee would have been meaningless if Czecho-
slovakia continued construction of Variant C, for Czechoslovakia, the
suspension of the construction, even on a temporary basis, was unaccept-
able.
That meeting was followed by a large number of exchanges of letters
between the parties and various meetings between their representatives a t
the end of 1991 and earlv in 1992. On 23 Januarv 1992. Czechoslovakia
expressed its readiness "to stop work on the provisional solution and
continue the construction upon mutual agreement" if the tripartite com-
mittee of experts whose constitution it proposed, and the results of the
test operation of the GabCikovo part, were to "confirm that negative eco-
logical effects exceed its benefits". However, the positions of the parties
were by then comprehensively defined, and would scarcely develop any
further. Hungary considered, as it indicated in a Note Verbale of 14 Feb-
ruary 1992, that Variant C was in contravention
"of [the Treaty of 19771 . . . and the convention ratified in 1976

regarding the water management of boundary waters.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
with the principles of sovereignty, territorial integrity, with the
inviolability of State borders, as well as with the general customary
norms on international rivers and the spirit of the 1948 Belgrade
Danube Convention" ;
and the suspension of the implementation of Variant C was, in its view, a
prerequisite. As for Czechoslovakia, it took the view that recourse to
Variant C had been rendered inevitable, both for economic and ecologi-
cal as well as navigational reasons, because of the unlawful suspension
and abandonment by Hungary of the works for which provision was
made in the 1977 Treaty. Any negotiation had, in its view, to be con-
ducted within the framework of the Treaty and without the implementa-
tion of Variant C - described as "provisional" - being called into
question.
65. On 5 August 1992, the Czechoslovak representative to the Danube
Commission informed it that "work on the severance cutting through of
the Danube's flow will begin on 15 October 1992 at the 1,851.759-kilo-
metre line" and indicated the measures that would be taken at the time of
the "severance". The Hungarian representative on the Commission pro-
tested on 17 August 1992, and called for additional explanations.
During the autumn of 1992, the implementation of VariantvC was
stepped up. The operations involved in damming the Danube at Cunovo
had been scheduled by Czechoslovakia to take place during the second
half of October 1992, a t a time when the waters of the river are generally
at their lowest level. On the initiative of the Commission of the European
Communities, trilateral negotiations took place in Brussels on 21 and
22 October 1992, with a view to setting up a committee of experts and
defining its terms of reference. On that date, the first phase of the opera-
tions leading to the damming of the Danube (the reinforcement of the
riverbed and the narrowing of the principal channel) had been com-
pleted. The closure of the bed was begun on 23 October 1992 and the
construction of the actual dam continued from 24 to 27 October 1992:
a pontoon bridge was built over the Danube on Czechoslovak territory
using river barges, large Stones were thrown into the riverbed and
reinforced with concrete, while 80 to 90 per cent of the waters of the
Danube were directed into the canal designed to supply the Gabtikovo
power plant. The implementation of Variant C did not, however, come
to an end with the diversion of the waters, as there still remained out-
standing both reinforcement work on the dam and the building of certain
auxiliary structures.
The Court has already referred in paragraph 24 to the meeting
held in London on 28 October 1992 under the auspices of the European
Communities, in the course of which the parties t o the negotiations
agreed, inter dia, to entrust a tripartite Working Group composed of
independent experts (Le., four experts designated by the European Com-
mission, one designated by Hungary and another by Czechoslovakia)
with the task of reviewing the situation created by the implementation of
Variant C and making proposals as to urgent measures to adopt. After
having worked for one week in Bratislava and one week in Budapest, the
Working Group filed its report on 23 November 1992.
66. A summary description of the constituent elements of Variant C
appears at paragraph 23 of the present Judgment. For the purposes of
the question put to the Court, the officia1 description that should be
adopted is, according to Article 2, paragraph 1 (b), of the Special Agree-
ment, the one given in the aforementioned report of the Working Group
of independent experts, and it should be emphasized that, according to

the Special Agreement, "Variant C" must be taken to include the conse-
quences "on water and navigation course" of the dam closing off the bed
of the Danube.
In the section headed "Variant C Structures and Status of Ongoing
Work", one finds, in the report of the W.orking Group, the following
passage :
"In both countries the original structures for the GabEikovo
scheme are completed except for the closure of the Danube river at
Dunakiliti and the
(1) Completion of the hydropower station (installation and testing
of turbines) at GabEikovo.
Variant C consists of a complex of structures, located in Czecho-
Slovakia . . . The construction of these are planned for two phases.
The structures include . . . :
(2) By-pass weir controlling the flow into the river Danube.
(3) Dam closing the Danubian river bed.
(4) Floodplain weir (weir in the inundation).
(5) lntake structure for the Mosoni Danube.
(6) lntake structure in the power canal.
(7) Earth barragesidykes connecting structures.
(8) Ship lock for smaller ships (1 5 m x 80 m).
(9) Spillway weir.
(10) Hydropower station.
The construction of the structures 1-7 are included in Phase 1,
while the remaining 8-10 are a part of Phase 2 scheduled for con-
struction 1993-1995."
67. Czechoslovakia had maintained that proceeding to Variant C and

putting it into operation did not constitute internationally wrongful acts;
Slovakia adopted this argument. During the proceedings before the Court
Slovakia contended that Hungary's decision to suspend and subsequently
abandon the construction of works at Dunakiliti had made it impossible
for Czechoslovakia to carry out the works as initially contemplated by
the 1977 Treaty and that the latter was therefore entitled to proceed with
a solution which was as close to the original Project as possible. Slovakia
invoked what it described as a "principle of approximate application" to
justify the construction and operation of Variant C. It explained that this
was the only possibility remaining to it "of fulfilling not only the pur-
poses of the 1977 Treaty, but the continuing obligation to implement it in
good faith".
68. Slovakia also maintained that Czechoslovakia was under a duty to

mitigate the damage resulting from Hungary's unlawful actions. It claimed
PROJECT (JUDGMENT)
that a State which is confronted with a wrongful act of another State is

under an obligation to minimize its losses and, thereby, the damages
claimable against the wrongdoing State. It argued furthermore that "Miti-
gation of damages is also an aspect of the performance of obligations in
good faith." For Slovakia, these damages would have been immense in
the present case, given the investments made and the additional economic
and environmental prejudice which would have resulted from the failure
to complete the works at DunakilitiiGabEikovo and to put the system
into operation. For this reason, Czechoslovakia was not only entitled,
but even obliged, to implement Variant C.
69. Although Slovakia maintained that Czechoslovakia's conduct was

lawful, it argued in the alternative that, even were the Court to find
otherwise, the putting into operation of Variant C could still be justified
as a countermeasure.
70. Hungary for its part contended that Variant C was a material
breach of the 1977 Treaty. It considered that Variant C also violated
Czechoslovakia's obligations under other treaties, in particular the Con-
vention of 31 May 1976 on the Regulation of Water Management Issues
of Boundary Waters concluded at Budapest, and its obligations under
general international law.
71. Hungary contended that Slovakia's arguments rested on an erro-
neous presentation of the facts and the law. Hungary denied, inter alia,
having committed the slightest violation of its treaty obligations which
could have justified the putting into operation of Variant C. It considered
that "no such rule" of "approximate application" of a treaty exists in
international law; as to the argument derived from "mitigation of dam-
age[s]", it claimed that this has to d o with the quantification of loss, and
could not serve to excuse conduct which is substantively unlawful. Hun-
gary furthermore stated that Variant C did not satisfy the conditions
required by international law for countermeasures, in particular the con-
dition of proportionality.
72. Before dealing with the arguments advanced by the Parties, the
Court wishes to make clear that it is aware of the serious problems with
which Czechoslovakia was confronted as a result of Hungary's decision
to relinquish most of the construction of the System of Locks for which
it was responsible by virtue of the 1977 Treaty. Vast investments had
been made, the construction at GabEikovo was al1 but finished, the
bypass canal was completed, and Hungary itself, in 1991, had duly ful-
filled its obligations under the Treaty in this respect in completing work
on the tailrace canal. It emerges from the report, dated 31 October 1992,
of the tripartite fact-finding mission the Court has referred to in para-
graph 24 of the present Judgment, that not using the system would have
led to considerable financial losses, and that it could have given rise to
serious problems for the environment.
73. Czechoslovakia repeatedly denounced Hungary's suspension and
abandonment of works as a fundamental breach of the 1977 Treaty and
consequently could have invoked this breach as a ground for terminating
the Treaty; but this would not have brought the Project any nearer to
completion. It therefore chose to insist on the implementation of the
Treaty by Hungary, and on many occasions called upon the latter to
resume performance of its obligations under the Treaty.
When Hungary steadfastly refused to d o so although it had expressed
-
its willingness to pay compensation for damage incurred by Czechoslo-

vakia - and when negotiations stalled owing to the diametrically opposed
positions of the parties, Czechoslovakia decided to put the GabEikovo
system into operation unilaterally, exclusively under its own control and
for its own benefit.
74. That decision went through various stages and, in the Special
Agreement, the Parties asked the Court to decide whether Czecho-
slovakia "was entitled to proceed, in November 1991" to Variant C,
and "to put [it] into operation from October 1992".
75. With a view to justifying those actions, Slovakia invoked what it
described as "the principle of approximate application", expressed by
Judge Sir Hersch Lauterpacht in the following terms:
"lt is a sound principle of law that whenever a legal instrument of
continuing validity cannot be applied literally owing to the conduct of
one of the parties, it must, without allowing that party to take advan-
tage of its own conduct, be applied in a way approximating most
closely to its primary object. To do that is to interpret and to give
effect to the instrument - not to change it." (Adrrzissibility uf Heur-
ings of Petitioners by the Committee on Soutlz West Africu, I.C.J.
Reports 1956, separate opinion of Sir Hersch Lauterpacht, p. 46.)
It claimed that this is a principle of international law and a general prin-
ciple of law.
76. It is not necessary for the Court to determine whether there is a
principle of international law or a general principle of law of "approxi-
mate application" because, even if such a principle existed, it could by
definition only be employed within the limits of the treaty in question. In
the view of the Court, Variant C does not meet that cardinal condition
with regard to the 1977 Treaty.
77. As the Court has already observed, the basic characteristic of the
1977 Treaty is, according to Article 1, to provide for the construction of
the Gabcikovo-Nagymaros System of Locks as a joint investment con-
stituting a single and indivisible operational system of works. This
element is equally reflected in Articles 8 and 10 of the Treaty providing
for joint ownership of the most important works of the GabEikovo-
Nagymaros Project and for the operation of this joint property as a
CO-ordinated single unit. By definition al1 this could not be carried
54 GABCIKOVO-NAGYMAROS PROJECT (JCDGMENT)
out by unilateral action. In spite of having a certain external physical

similarity with the original Project, Variant C thus differed sharply from
it in its legal characteristics.
78. Moreover, in practice, the operation of Variant C led Czechoslo-
vakia to appropriate, essentially for its use and benefit, between 80 and
90 per cent of the waters of the Danube before returning them to the
main bed of the river, despite the fact that the Danube is not only a
shared international watercourse but also an international boundary
river.
Czechoslovakia submitted that Variant C was essentially no more than
what Hungary had already agreed to and that the only modifications
made were those which had become necessary by virtue of Hungary's
decision not to implement its treaty obligations. It is true that Hungary,
in concluding the 1977 Treaty, had agreed to the damming of the Danube
and the diversion of its waters into the bypass canal. But it was only in
the context of a joint operation and a sharing of its benefits that Hungary
had given its consent. The suspension and withdrawal of that consent
constituted a violation of Hungary's legal obligations, demonstrating, as
it did, the refusal by Hungary of joint operation; but that cannot mean
that Hungary forfeited its basic right to an equitable and reasonable
sharing of the resources of an international watercourse.
The Court accordingly concludes that Czechoslovakia, in putting

Variant C into operation, was not applying the 1977 Treaty but, on the
contrary, violated certain of its express provisions, and, in so doing,
committed an internationally wrongful act.
79. The Court notes that between November 1991 and October 1992,
Czechoslovakia confined itself to the execution, on its own territory, of
the works which were necessary for the implementation of Variant C, but
which could have been abandoned if an agreement had been reached
between the parties and did not therefore predetermine the final decision
to be taken. For as long as the Danube had not been unilaterally
dammed, Variant C had not in fact been applied.
Such a situation is not unusual in international law or, for that matter,
in domestic law. A wrongful act or offence is frequently preceded by pre-
paratory actions which are not to be confused with the act or offence
itself. It is as well to distinguish between the actual commission of a
wrongful act (whether instantaneous or continuous) and the conduct
prior to that act which is of a preparatory character and which "does
not qualify as a wrongful act" (see for example the Commentary on
Article 41 of the Draft Articles on State Responsibility, "Report of the
International Law Commission on the work of its forty-eighth session,
6 May-26 July 1996", Officiul Records of the General Assemblj>, Fifty-
first Session, Supplemcnt No. 10 (AlSlilO), p. 141, and Yearbook of the
International Law Commission, 1993, Vol. II, Part 2, p. 57, para. 14).
55 G A B ~ I K O V O - N A G Y M A R O SPROJECT (JUDGMENT)
80. Slovakia also maintained that it was acting under a duty to miti-
gate damages when it carried out Variant C. It stated that "It is a general
principle of international law that a party injured by the non-perform-
ance of another contract party must seek to mitigate the damage he has
sustained."
It would follow from such a principle that an injured State which has
failed to take the necessary measures to limit the damage sustained would
not be entitled to claim compensation for that damage which could have
been avoided. While this principle might thus provide a basis for the cal-
culation of damages, it could not, on the other hand, justify an otherwise
wrongful act.
81. Since the Court has found that the putting into operation of Vari-
ant C constituted an internationally wrongful act, the duty to mitigate
damage invoked by Slovakia does not need to be examined further.
82. Although it did not invoke the plea of countermeasures as a

primary argument, since it did not consider Variant C to be unlawful,
Slovakia stated that "Variant C could be presented as a justified
countermeasure t o Hungary's illegal acts".
The Court has concluded, in paragraph 78 above, that Czechoslovakia

committed an internationally wrongful act in putting Variant C into
operation. Thus, it now has to determine whether such wrongfulness may
be precluded on the ground that the measure so adopted was in response
to Hungary's prior failure to comply with its obligations under interna-
tional law.
83. In order to be justifiable, a countermeasure must meet certain con-
ditions (see Militurq und Paramilitary Acti~,itie.sin und uguinst Nicara-
gua j Nicaraguu v. United S t u t e ~of Anwrica) , Merits, Judgment, 1. C.J.
Reports 1986. p. 127, para. 249. See also Arbitral Abvard o j 9 Dccrmher
19711 in the case concerning the Air Service Agreement o j 27 Murch 1946
betwern the Unitrd States o j America and France, United Nations,
Reports of lnternutionul Arbitral A)t,ards ( R I A A ) , Vol. XVIII, pp. 443 et
seq.; also Articles 47 to 50 of the Draft Articles on State Responsibility
adopted by the International Law Commission on first reading, "Report
of the International Law Commission on the work of its forty-eighth ses-
sion, 6 May-26 July 1996", Ofjciul Records of the General Assembly,
Fifty-Jirst Session, Supplement No. 10 (A/51110), pp. 144-145.)
In the first place it must be taken in response to a previous interna-

tional wrongful act of another State and must be directed against that
State. Although not primarily presented as a countermeasure, it is clear
that Variant C was a response to Hungary's suspension and abandon-
ment of works and that it was directed against that State; and it is
equally clear, in the Court's view, that Hungary's actions were interna-
tionally wrongful.
84. Secondly, the injured State must have called upon the State com-
mitting the wrongful act to discontinue its wrongful conduct o r to make
reparation for it. It is clear from the facts of the case, as recalled above by
the Court (see paragraphs 61 et seq.), that Czechoslovakia requested
Hungary to resume the performance of its treaty obligations on many
occasions.
85. In the view of the Court, an important consideration is that the
effects of a countermeasure must be commensurate with the injury suf-
fered, taking account of the rights in question.
In 1929, the Permanent Court of International Justice, with regard to
navigation on the River Oder, stated as follows:
"[the] community of interest in a navigable river becomes the basis

of a common legal right, the essential features of which are the per-
fect equality of al1 riparian States in the user of the whole course of
the river and the exclusion of any preferential privilege of any one
riparian State in relation to the others" (Territorial Jurisdiction of
the International Commission of the River Oder, Judgment No. 16,
1929, P. C.I. J., Series A, No. 23, p. 27).
Modern development of international law has strengthened this prin-

ciple for non-navigational uses of international watercourses as well, as
evidenced by the adoption of the Convention of 21 May 1997 on the Law
of the Non-Navigational Uses of International Watercourses by the
United Nations General Assembly.
The Court considers that Czechoslovakia, by unilaterally assuming

control of a shared resource, and thereby depriving Hungary of its right
to an equitable and reasonable share of the natural resources of the Dan-
ube - with the continuing effects of the diversion of these waters on the
ecology of the riparian area of the Szigetkoz - failed to respect the pro-
portionality which is required by international law.
86. Moreover, as the Court has already pointed out (see para-
graph 78), the fact that Hungary had agreed in the context of the original
Project to the diversion of the Danube (and, in the Joint Contractual
Plan, to a provisional measure of withdrawal of water from the Danube)
cannot be understood as having authorized Czechoslovakia to proceed
with a unilateral diversion of this magnitude without Hungary's consent.
87. The Court thus considers that the diversion of the Danube carried
out by Czechoslovakia was not a lawful countermeasure because it was
not proportionate. It is therefore not required to pass upon one other
condition for the lawfulness of a countermeasure, namely that its purpose
must be to induce the wrongdoing State to comply with its obliga-
57 G A B ~ ~ K O V O - N A G Y M A R OPROJECT
S (JUDGMENT)
tions under international law, and that the measure must therefore be
reversible.
88. In the light of the conclusions reached above, the Court, in reply to
the question put to it in Article 2, paragraph 1 ( h ) , of the Special Agree-
ment (see paragraph 60), finds that Czechoslovakia was entitled to pro-
ceed, in November 1991, to Variant C in so far as it then confined itself
to undertaking works which did not predetermine the final decision to be
taken by it. O n the other hand, Czechoslovakia was not entitled to put
that Variant into operation from October 1992.
89. By the terms of Article 2, paragraph 1 (c), of the Special Agree-

ment, the Court is asked, thirdly, to determine "what are the legal effects
of the notification, on 19 May 1992, of the termination of the Treaty by
the Republic of Hungary".
The Court notes that it has been asked to determine what are the legal
effects of the notification rriven on 19 Mav 1992 of the termination of the
G d
Treaty. It will consequently confine itself to replying to this question.

90. The Court will recall that, by early 1992, the respective parties to
the 1977 Treaty had made clear their positions with regard to the recourse
by Czechoslovakia to Variant C. Hungary in a Note Verbale of 14 Feb-
ruary 1992 had made clear its view that Variant C was a contravention of
the 1977 Treaty (see paragraph 64 above); Czechoslovakia insisted on the
implementation of Variant C as a condition for further negotiation. On
26 February 1992, in a letter to his Czechoslovak counterpart, the Prime
Minister of Hungary described the impending diversion of the Danube as
"a serious breach of international law" and stated that, unless work was
suspended while further enquiries took place, "the Hungarian Govern-
ment [would] have no choice but to respond to this situation of necessity
by terminating the 1977 inter-State Treaty". In a Note Verbale dated
18 March 1992, Czechoslovakia reaffirmed that, while it was prepared to
continue negotiations "on every level", it could not agree "to stop al1
work on the provisional solution".
O n 24 March 1992, the Hungarian Parliament passed a resolution

authorizing the Government to terminate the 1977 Treaty if Czechoslo-
vakia did not stop the works by 30 April 1992. On 13 April 1992, the
Vice-President of the Commission of the European Communities wrote
to both parties confirming the willingness of the Commission to chair a
committee of independent experts including representatives of the two
countries, in order to assist the two ~ o v e r n m e n t sin identifying a mutu-
PROJECT (JUDGMENT)
ally acceptable solution. Commission involvement would depend on each

Government not taking "any steps . . . which would prejudice possible
actions to be undertaken on the basis of the report's findings". The
Czechoslovak Prime Minister stated in a letter to the Hungarian Prime
Minister dated 23 April 1992, that his Government continued to be inter-
ested in the establishment of the proposed committee "without any pre-
liminary conditions"; criticizing Hungary's approach, he refused to sus-
pend work on the provisional solution, but added, "in my opinion, there
is still time, until the damming of the Danube (Le., until October 31,
1992), for resolving disputed questions on the basis of agreement of both
States".
On 7 May 1992, Hungary, in the very resolution in which it decided on

the termination of the Treaty, made a proposal, this time to the Slovak
Prime Minister, for a six-month suspension of work on Variant C. The
Slovak Prime Minister replied that the Slovak Government remained
ready to negotiate, but considered preconditions "inappropriate".
91. O n 19 May 1992, the Hungarian Government transmitted to the

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

port of the lawfulness, and thus the effectiveness, of its notification of
termination. These were the existence of a state of necessity; the impos-
sibility of performance of the Treaty; the occurrence of a fundamental
change of circumstances; the material breach of the Treaty by Czecho-
slovakia; and, finally, the development of new norms of international
environmental law. Slovakia contested each of these grounds.
93. O n the first point, Hungary stated that, as Czechoslovakia had
"remained inflexible" and continued with its im~lementationof Variant
C, "a temporary state of necessity eventually became permanent, justify-
ing termination of the 1977 Treaty".
Slovakia, for its part, denied that a state of necessity existed on the
PROJECT (JUDGMENT)
basis of what it saw as the scientific facts; and argued that even if such a
state of necessity had existed, this would not give rise to a right to ter-
minate the Treaty under the Vienna Convention of 1969 on the Law of
Treaties.
94. Hungary's second argument relied on the terms of Article 61 of the
Vienna Convention, which is worded as follows:
"Article 6 1
Supervening Impossibility of' Pe~forrnunce
1. A party may invoke the impossibility of performing a treaty as
a ground for terminating o r withdrawing from it if the impossibility
results from the permanent disappearance o r destruction of an object
indispensable for the execution of the treaty. If the impossibility is
temporary, it may be invoked only as a ground for suspending the
operation of the treaty.
2. Impossibility of performance may not be invoked by a party as
a ground for terminating, withdrawing from or suspending the opera-
tion of a treaty if the impossibility is the result of a breach by that
party either of an obligation under the treaty o r of any other inter-
national obligation owed to any other party to the treaty."
Hungary declared that it could not be "obliged to fulfil a practically
impossible task, namely to construct a barrage system on its own terri-
tory that would cause irreparable environmental damage". It concluded
that
"By May 1992 the essential object of the Treaty - a n economic
joint investment which was consistent with environmental protection
and which was operated by the two parties jointly - had perma-
nently disappeared, and the Treaty had thus become impossible to
perform."
In Hungary's view, the "object indispensable for the execution of the
treaty", whose disappearance o r destruction was required by Article 61 of
the Vienna Convention, did not have to be a physical object, but could
also include, in the words of the International Law Commission, "a legal
situation which was the raison d'être of the rights and obligations".
Slovakia claimed that Article 61 was the only basis for invoking impos-
sibility of performance as a ground for termination, that paragraph 1 of
that Article clearly contemplated physical "disappearance or destruction"
of the object in question, and that, in any event, paragraph 2 precluded
the invocation of impossibility "if the impossibility is the result of a
breach by that party . . . of an obligation under the treaty".
95. As to "fundamental change of circumstances", Hungary relied on

Article 62 of the Vienna Convention on the Law of Treaties which states
as follows:
"Article 62
Fundumrntul Chunge of Circunzstances
1. A fundamental change of circumstances which has occurred
with regard to those existing at the time of the conclusion of a treaty,
and which was not foreseen by the parties, may not be invoked as a
ground for terminating o r withdrawing from the treaty unless:
( a ) the existence of those circumstances constituted a n essential

basis of the consent of the parties to be bound by the treaty;
and
( h ) the effect of the change is radically to transform the extent of
obligations still to be performed under the treaty.
2. A fundamental change of circumstances may not be invoked as
a ground for terminating or withdrawing from a treaty:
( a ) if the treaty establishes a boundary; o r
( h ) if the fundamental change is the result of a breach by the party
invoking it either of an obligation under the treaty o r of any
other international obligation owed to any other party to the
treaty.
3. If, under the foregoing paragraphs, a party may invoke a fun-
damental change of circumstances as a ground for terminating or
withdrawing from a treaty it may also invoke the change as a ground
for suspending the operation of the treaty."
Hungary identified a number of "substantive elements" present at the
conclusion of the 1977 Treaty which it said had changed fundamentally
by the date of notification of termination. These included the notion
of "socialist integration", for which the Treaty had originally been a
"vehicle", but which subsequently disappeared; the "single and indivisible
operational system", which was to be replaced by a unilateral scheme;
the fact that the basis of the planned joint investment had been over-
turned by the sudden emergence of both States into a market economy;
the attitude of Czechoslovakia which had turned the "framework treaty"
into a n "immutable norm"; and, finally, the transformation of a treaty
consistent with environmental protection into "a prescription for envi-
ronmental disaster".
Slovakia, for its part, contended that the changes identified by Hun-
gary had not altered the nature of the obligations under the Treaty from
those originally undertaken, so that no entitlement to terminate it arose
from them.
96. Hungary further argued that termination of the Treaty was justi-
fied by Czechoslovakia's material breaches of the Treaty, and in this
regard it invoked Article 60 of the Vienna Convention on the Law of
Treaties, which provides:
PROJECT
GABC~KOVO-NAGYMAROS (JUDGMENT)
"Article 60
Terminution or Suspension of the Operution o f u Treaty
us u Consequence of Its Breach
1. A material breach of a bilateral treaty by one of the parties
entitles the other to invoke the breach as a ground for terminating
the treaty or suspending its operation in whole or in part.
2. A material breach of a multilateral treaty by one of the parties

entitles :
( a ) the other parties by unanimous agreement to suspend the opera-
tion of the treaty in whole or in part or to terminate it either:
(i) in the relations between themselves and the defaulting State,
or
(ii) as between al1 the parties;
( b ) a party specially affected by the breach to invoke it as a ground
for suspending the operation of the treaty in whole o r in part in
the relations between itself and the defaulting State;
(c) any party other than the defaulting State to invoke the breach
as a ground for suspending the operation of the treaty in whole
o r in part with respect to itself if the treaty is of such a charac-
ter that a material breach of its provisions by one party radi-
cally changes the position of every party with respect to the
further performance of its obligations under the treaty.
3. A niaterial breach of a treaty, for the purposes of this article,
consists in:
( a ) a repudiation of the treaty not sanctioned by the present Con-
vention; o r
( 6 ) the violation of a provision essential to the accomplishment of
the object or purpose of the treaty.
4. The foregoing paragraphs are without prejudice to any provi-
sion in the treaty applicable in the event of a breach.
5. Paragraphs 1 to 3 d o not apply to provisions relating to the
protection of the human person contained in treaties of a humani-
tarian character, in particular to provisions prohibiting any form of
reprisals against perçons protected by such treaties."
Hungary claimed in particular that Czechoslovakia violated the 1977

Treaty by proceeding to the construction and putting into operation of
Variant C, as well as failing to comply with its obligations under Ar-
ticles 15 and 19 of the Treaty. Hungary further maintained that Czecho-
slovakia had breached other international conventions (among them the
Convention of 31 May 1976 on the Regulation of Water Management
Issues of Boundary Waters) and general international law.
PROJECT (JUDGMENT)
Slovakia denied that there had been, on the part of Czechoslovakia o r

on its part, any material breach of the obligations t o protect water qual-
ity and nature, and claimed that Variant C, far from being a breach, was
devised as "the best possible approximate application" of the Treaty. It
furthermore denied that Czechoslovakia had acted in breach of other
international conventions o r general international law.
97. Finally, Hungary argued that subsequently imposed requirements

of international law in relation to the protection of the environment pre-
cluded performance of the Treaty. The previously existing obligation not
to cause substantive damage to the territory of another State had, Hun-
gary claimed, evolved into a n ergu omnes obligation of prevention of
damage pursuant to the "precautionary principle". On this basis, Hun-
gary argued, its termination was "forced by the other party's refusal to
suspend work on Variant Cm.
Slovakia argued, in reply, that none of the intervening developments in

environmental law gave rise to norms of j u s cogens that would override
the Treaty. Further, it contended that the claim by Hungary to be
entitled to take action could not in any event serve as legal justification
for termination of the Treaty under the law of treaties, but belonged
rather "to the language of self-help o r reprisals".
98. The question, as formulated in Article 2, paragraph 1 ( c ) , of the

Special Agreement, deals with treaty law since the Court is asked to
determine what the legal effects are of the notification of termination of
the Treaty. The question is whether Hungary's notification of 19 May
1992 brought the 1977 Treaty to an end, o r whether it did not meet the
requirements of international law, with the consequence that it did not
terminate the Treaty.
99. The Court has referred earlier to the question of the applicability
to the present case of the Vienna Convention of 1969 on the Law of Trea-
ties. The Vienna Convention is not directly applicable to the 1977 Treaty
inasmuch as both States ratified that Convention only after the Treaty's
conclusion. Consequently only those rules which are declaratory of cus-
tomary law are applicable to the 1977 Treaty. As the Court has already
stated above (see paragraph 46), this is the case, in many respects, with
Articles 60 to 62 of the Vienna Convention. relatine" to termination or
suspension of the operation of a treaty. On this, the Parties, too, were
broadly in agreement.
100. The 1977 Treaty does not contain any provision regarding its ter-
mination. Nor is there any indication that the parties intended to admit
the possibility of denunciation or withdrawal. O n the contrary, the
Treaty establishes a long-standing and durable régime of joint investment
and joint operation. Consequently, the parties not having agreed other-
wise, the Treaty could be terminated only on the limited grounds enu-
merated in the Vienna Convention.
101. The Court will now turn to the first ground advanced by Hun-
gary, that of the state of necessity. In this respect, the Court will merely
observe that, even if a state of necessity is found to exist, it is not a
ground for the termination of a treaty. It may only be invoked to exon-
erate from its responsibility a State which has failed to implement a
treaty. Even if found justified, it does not terminate a Treaty; the Treaty
may be ineffective as long as the condition of necessity continues to exist ;
it may in fact be dormant, but - unless the parties by mutual agreement
terminate the Treaty - it continues to exist. As soon as the state of
necessity ceases to exist, the duty to comply with treaty obligations
revives.
102. Hungary also relied on the principle of the impossibility of per-

formance as reflected in Article 61 of the Vienna Convention on the Law
of Treaties. Hungary's interpretation of the wording of Article 61 is,
however, not in conformity with the terms of that Article, nor with the
intentions of the Diplomatic Conference which adopted the Convention.
Article 6 1, paragraph 1, requires the "permanent disappearance or
destruction of an object indispensable for the execution" of the treaty to
justify the termination of a treaty on grounds of impossibility of perform-
ance. During the conference, a proposal was made to extend the scope of
the article by including in it cases such as the impossibility to make cer-
tain payments because of serious financial difficulties (Ojjciul Records of
the United Nations Conjerence on the Luiv qf' Treuties, First Session,
Vienna, 26 Murch-24 Muy 1968, doc. A/CONF.39/11, Summary records
of the plenary meetings and of the meetings of the Committee of the
Whole, 62nd Meeting of the Committee of the Whole, pp. 361-365).
Although it was recognized that such situations could lead to a preclu-
sion of the wrongfulness of non-performance by a party of its treaty
obligations, the participating States were not prepared to consider such
situations to be a ground for terminating or suspending a treaty,
and preferred to limit themselves to a narrower concept.
103. Hungary contended that the essential object of the Treaty - an
economic joint investment which was consistent with environmental pro-
tection and which was operated by the two contracting parties jointly -
had permanently disappeared and that the Treaty had thus become
impossible to perform. It is not necessary for the Court to determine
whether the term "object" in Article 61 can also be understood to
embrace a legal régime as in any event, even if that were the case, it
would have to conclude that in this instance that régime had not defini-
tively ceased t o exist. The 1977 Treaty - and in particular its Articles 15,
19 and 20 - actually made available to the parties the necessary means
to proceed at any time, by negotiation, to the required readjustments
between economic imperatives and ecological imperatives. The Court
would add that, if the joint exploitation of the investment was no longer
possible, this was originally because Hungary did not carry out most of
the works for which it was responsible under the 1977 Treaty; Article 61,
paragraph 2, of the Vienna Convention expressly provides that impossi-
bility of performance may not be invoked for the termination of a treaty
by a party to that treaty when it results from that party's own breach of
an obligation flowing from that treaty.
104. Hungary further argued that it was entitled to invoke a number

of events which, cumulatively, would have constituted a fundamental
change of circumstances. In this respect it specified profound changes of
a political nature, the Project's diminishing economic viability, the
progress of environmental knowledge and the development of new norms
and prescriptions of international environmental law (see paragraph 95
above).
The Court recalls that, in the Fislzrries Jurisdiction case, it stated that
"Article 62 of the Vienna Convention on the Law of Treaties, . . .

may in many respects be considered as a codification of existing cus-
tomary law on the subject of the termination of a treaty relationship
on account of change of circumstances" (I.C.J. Reports 1973, p. 63,
para. 36).
The prevailing political situation was certainly relevant for the conclu-
sion of the 1977 Treaty. But the Court will recall that the Treaty provided
for a joint investment programme for the production of energy, the con-
trol of floods and the improvement of navigation on the Danube. In the
Court's view, the prevalent political conditions were thus not so closely
linked to the object and purpose of the Treaty that they constituted an
essential basis of the consent of the parties and, in changing, radically
altered the extent of the obligations still to be performed. The same holds
good for the economic system in force at the time of the conclusion of the
1977 Treaty. Besides, even though the estimated profitability of the
Project might have appeared less in 1992 than in 1977, it does not appear
from the record before the Court that it was bound to diminish to such
an extent that the treaty obligations of the parties would have been radi-
cally transformed as a result.
The Court does not consider that new developments in the state of
environmental knowledge and of environmental law can be said to
have been completely unforeseen. What is more, the formulation of
Articles 15, 19 and 20, designed to accommodate change, made it pos-
sible for the parties to take account of such developments and to apply
them when implementing those treaty provisions.
The changed circumstances advanced by Hungary are, in the Court's
view, not of such a nature, either individually or collectively, that their
effect would radically transform the extent of the obligations still to be
performed in order to accomplish the Project. A fundamental change of
circumstances must have been unforeseen; the existence of the circum-
stances at the time of the Treaty's conclusion must have constituted an
essential basis of the consent of the parties to be bound by the Treaty.
The negative and conditional wording of Article 62 of the Vienna Con-
vention on the Law of Treaties is a clear indication moreover that the
stability of treaty relations requires that the plea of fundamental change
of circumstances be applied only in exceptional cases.
105. The Court will now examine Hungary's argument that it was
entitled to terminate the 1977 Treaty on the ground that Czechoslovakia
had violated its Articles 15, 19 and 20 (as well as a number of other con-
ventions and rules of general international law); and that the planning,
construction and putting into operatinn of Variant C also amounted to a
material breach of the 1977 Treatv.
106. As to that part of Hungary's argument which was based on other
treaties and general rules of international law, the Court is of the view
that it is only a material breach of the treaty itself, by a State party to
that treaty, which entitles the other party to rely on it as a ground for
terminating the treaty. The violation of other treaty rules or of rules of
general international law may justify the taking of certain measures,
including countermeasures, by the injured State, but it does not consti-
tute a ground for termination under the law of treaties.
107. Hungary contended that Czechoslovakia had violated Articles 15,

19 and 20 of the Treaty by refusing to enter into negotiations with Hun-
gary in order to adapt the Joint Contractual Plan to new scientific and
legal developments regarding the environment. Articles 15, 19 and 20
oblige the parties jointly to take, on a continuous basis, appropriate
measures necessary for the protection of water quality, of nature and of
fishing interests.
Articles 15 and 19 expressly provide that the obligations they contain

shall be implemented by the means specified in the Joint Contractual
Plan. The failure of the parties to agree on those means cannot, on the
basis of the record before the Court, be attributed solely to one party.
PROJECT (JUDGMENT)
The Court has not found sufficient evidence t o conclude that Czechoslo-
vakia had consistently refused to consult with Hungary about the desir-
ability or necessity of measures for the preservation of the environment.
The record rather shows that, while both parties indicated, in principle, a
willingness to undertake further studies, in practice Czechoslovakia
refused to countenance a suspension of the works at Dunakiliti and,
later, on Variant C, while Hungary required suspension as a prior condi-
tion of environmental investigation because it claimed continuation of
the work would prejudice the outcome of negotiations. In this regard it
cannot be left out of consideration that Hungary itself, by suspending the
works at Nagymaros and Dunakiliti, contributed to the creation of a
situation which was not conducive to the conduct of fruitful negotiations.
108. Hungary's main argument for invoking a material breach of the

Treaty was the construction and putting into operation of Variant C. As
the Court has found in paragraph 79 above, Czechoslovakia violated the
Treaty only when it diverted the waters of the Danube into the bypass
canal in October 1992. In constructing the works which would lead to
the putting into operation of Variant C, Czechoslovakia did not act
unlawfully.
In the Court's view, therefore, the notification of termination by Hun-
gary on 19 May 1992 was premature. No breach of the Treaty by
Czechoslovakia had yet taken place and consequently Hungary was not
entitled to invoke any such breach of the Treaty as a ground for termi-
nating it when it did.
-109. In this regard, it should be noted that, according to Hungary's
Declaration of 19 May 1992, the termination of the 1977 Treaty was to
take effect as from 25 May 1992, that is only six days later. Both Parties
agree that Articles 65 to 67 of the Vienna Convention on the Law of
Treaties, if not codifying customary law, at least generally reflect custom-
ary international law and contain certain procedural principles which are
based on an obligation to act in good faith. As the Court stated in its
Advisory Opinion on the Interpretufion of tlze Agreement of 25 March
1951 hetiilren tlze WHO und Egypt (in which case the Vienna Convention
did not apply) :
"Precisely what periods of time may be involved in the observance

of the duties to consult and negotiate, and what period of notice of
termination should be given, are matters which necessarily Vary
according to the requirements of the particular case. In principle,
therefore, it is for the parties in each case to determine the length of
those periods by consultation and negotiation in good faith." (1.C.J.
Reports 1980, p. 96, para. 49.)
The termination of the Treaty by Hungary was to take effect six days
PROJECT (JUDGMENT)
after its notification. On neither of these dates had Hungary suffered

injury resulting from acts of Czechoslovakia. The Court must therefore
confirm its conclusion that Hungary's termination of the Treaty was
premature.
110. Nor can the Court overlook that Czechoslovakia committed the
internationally wrongful act of putting into operation Variant C as a
result of Hungary's own prior wrongful conduct. As was stated by the
Permanent Court of International Justice:
"It is, moreover, a principle generally accepted in the jurispru-

dence of international arbitration, as well as by municipal courts,
that one Party cannot avail himself of the fact that the other has not
fulfilled some obligation o r has not had recourse to some means of
redress, if the former Party has, by some illegal act, prevented the
latter from fulfilling the obligation in question, or from having
recourse to the tribunal which would have been open to him." (Fuc-
tory at Chorzo~v,Jurisdiction, Juclgment No. 8, 1927, P.C.I. J..
Series A , No. 9 , p. 3 1 .)
Hungary, by its own conduct, had prejudiced its right to terminate the
Treaty; this would still have been the case even if Czechoslovakia, by the
time of the purported termination, had violated a provision essential to
the accomplishment of the object or purpose of the Treaty.
1 1 1. Finally, the Court will address Hungary's claim that it was

entitled to terminate the 1977 Treaty because new requirements of inter-
national law for the protection of the environment precluded perfor-
mance of the Treaty.
112. Neither of the Parties contended that new DeremDtorv norms of
environmental law had emerged since the conclusion of tke 1677 Treaty,
and the Court will consequently not be required to examine the scope of
Article 64 of the Vienna Convention on the Law of Treaties. On the other
hand, the Court wishes to point out that newly developed norms of envi-
ronmental law are relevant for the implementation of the Treaty and that
the parties could, by agreement, incorporate them through the applica-
tion of Articles 15, 19 and 20 of the Treaty. These articles d o not contain
specific obligations of performance but require the parties, in carrying
out their obligations to ensure that the quality of water in the Danube is
not impaired and that nature is protected, to take new environmental
norms into consideration when agreeing upon the means to be specified
in the Joint Contractual Plan.
By inserting these evolving provisions in the Treaty, the parties recog-

nized the potential necessity to adapt the Project. Consequently, the
Treaty is not static, and is open to adapt to emerging norms of interna-

tional law. By means of Articles 15 and 19, new environmental norms can
be incorporated in the Joint Contractual Plan.
The responsibility to d o this was a joint responsibility. The obligations

contained in Articles 15, 19 and 20 are, by definition, general and have to
be transformed into specific obligations of performance through a pro-
cess of consultation and negotiation. Their implementation thus requires
a mutual willingness to discuss in good faith actual and potential environ-
mental risks.
It is al1 the more important to d o this because as the Court recalled in
its Advisory Opinion on the Legulity of the Threut or Use of Nucleur
Weupons, "the environment is not a n abstraction but represents the living
space, the quality of life and the very health of human beings, including
generations unborn" ( I . C.J. Reports 1996, p. 241, para. 29; see also para-
graph 53 above).
The awareness of the vulnerability of the environment and the recogni-
tion that environmental risks h a v e t o be assessed on a continuous basis
have become much stronger in the years since the Treaty's conclusion.
These new concerns have enhanced the relevance of Articles 15, 19
and 20.
113. The Court recognizes that both Parties agree on the need to take
environmental concerns seriously and to take the required precautionary
measures, but they fundamentally disagree on the consequences this has
for the joint Project. In such a case, third-party involvement may be help-
ful and instrumental in finding a solution, provided each of the Parties is
flexible in its position.
114. Finally, Hungary maintained that by their conduct both parties

had repudiated the Treaty and that a bilateral treaty repudiated by both
parties cannot survive. The Court is of the view, however, that although
it has found that both Hungary and Czechoslovakia failed to comply
with their obligations under the 1977 Treaty, this reciprocal wrongful
conduct did not bring the Treaty to an end nor justify its termination.
The Court would set a precedent with disturbing implications for treaty
relations and the integrity of the rule puctu sunt servunda if it were to
conclude that a treaty in force between States, which the parties have
implemented in considerable measure and at great cost over a period of
years, might be unilaterally set aside on grounds of reciprocal non-
compliance. It would be otherwise, of course, if the parties decided to
terminate the Treaty by mutual consent. But in this case, while Hungary
purported to terminate the Treaty, Czechoslovakia consistently resisted
this act and declared it to be without legal effect.
1 15. In the light of the conclusions it has reached above, the Court, in
reply to the question put to it in Article 2, paragraph 1 (c), of the Special
Agreement (see paragraph 89), finds that the notification of termination
by Hungary of 19 May 1992 did not have the legal effect of terminating
the 1977 Treaty and related instruments.
116. In Article 2, paragraph 2, of the Special Agreement, the Court is

requested to determine the legal consequences, including the rights and
obligations for the Parties, arising from its Judgment on the questions
formulated in paragraph 1. In Article 5 of the Special Agreement the
Parties agreed to enter into negotiations on the modalities for the execu-
tion of the Judgment immediately after the Court has rendered it.
117. The Court must first turn to the question whether Slovakia
became a party to the 1977 Treaty as successoi to Czechoslovakia. As an
alternative argument, Hungary contended that, even if the Treaty sur-
vived the notification of termination, in any event it ceased to be in force
as a treaty on 31 December 1992, as a result of the "disappearance of one
of the parties". O n that date Czechoslovakia ceased to exist as a legal
entity, and on 1 January 1993 the Czech Republic and the Slovak Repub-
lic came into existence.
118. According to Hungary, "There is no rule of international law

which provides for automatic succession to bilateral treaties on the dis-
appearance of a party" and such a treaty will not survive unless another
State succeeds to it by express agreement between that State and the
remaining party. While the second paragraph of the Preamble to the
Special Agreement recites that
"the Slovak Republic is one of the two successor States of the Czech
and Slovak Federal Republic and the sole successor State in respect
of rights and obligations relating to the Gabtikovo-Nagymaros
Project",
Hungary sought to distinguish between, on the one hand, rights and obli-
gations such as "continuing property rights" under the 1977 Treaty, and,
on the other hand, the treaty itself. It argued that, during the negotiations
leading to signature of the Special Agreement, Slovakia had proposed a
text in which it would have been expressly recognized "as the successor to
the Government of the CSFR" with regard to the 1977 Treaty, but that
Hungary had rejected that formulation. It contended that it had never
agreed to accept Slovakia as successor to the 1977 Treaty. Hungary
referred to diplomatic exchanges in which the two Parties had each sub-
mitted to the other lists of those bilateral treaties which they respectively
wished should continue in force between them. for negotiation on a case-
PROJECT (JUDGMENT)
by-case basis; and Hungary emphasized that n o agreement was ever

reached with regard to the 1977 Treaty.
119. Hungary claimed that tbere was no rule of succession which

could operate in the present case to override the absence of consent.
Referring to Article 34 of the Vienna Convention of 23 August 1978 on
Succession of States in respect of Treaties, in which "a rule of automatic
succession to al1 treaties is provided for", based on the principle of con-
tinuity, Hungary argued not only that it never signed or ratified the Con-
vention, but that the "concept of automatic succession" contained in that
Article was not and is not, and has never been accepted as, a statement of
general international 1aw.
Hungary further submitted that the 1977 Treaty did not create "obli-
gations and rights . . . relating to the régime of a boundary" within the
meaning of Article I I of that Convention, and noted that the existing
course of the boundary was unaffected by the Treaty. It also denied that
the Treaty was a "localized" treaty, o r that it created rights "considered
as attaching to [the] territory" within the meaning of Article 12 of the
1978 Convention, which would, as such, be unaffected by a succession of
States. The 1977 Treaty was, Hungary insisted, simply a joint investment.
Hungary's conclusion was that there is no basis on which the Treaty
could have survived the disappearance of Czechoslovakia so as to be
binding as between itself and Slovakia.
120. According to Slovakia, the 1977 Treaty, which was not lawfully
terminated by Hungary's notification in May 1992, remains in force
between itself, as successor State, and Hungary.
Slovakia acknowledged that there was no agreement on succession to
the Treaty between itself and Hungary. It relied instead, in the first place,
on the "general rule of continuity which applies in the case of dissolu-
tion"; it argued, secondly, that the Treaty is one "attaching to [the] ter-
ritory" within the meaning of Article 12 of the 1978 Vienna Convention,
and that it contains provisions relating to a boundary.
121. In support of its first argument Slovakia cited Article 34 of the
1978 Vienna Convention, which it claimed is a statement of customary
international law, and which imposes the principle of automatic succes-
sion as the rule applicable in the case of dissolution of a State where the
~redecessorState has ceased to exist. Slovakia maintained that State
practice in cases of dissolution tends to support continuity as the rule to
be followed with regard to bilateral treaties. Slovakia having succeeded
to part of the territory of the former Czechoslovakia, this would be the
rule applicable in the present case.
122. Slovakia's second argument rests on "the principle of ipso jure
continuity of treaties of a territorial o r localized character". This rule,
Slovakia said, is embodied in Article 12 of the 1978 Convention, which in
part provides as follows :
PROJECT (JUDGMENT)
"Article 12
Other Territorial Regimes
. . . . . . . . . . . . . . . . . . . . . . . .
2. A succession of States does not as such affect:
( a ) obligations relating to the use of any territory, or to restrictions
upon its use, established by a treaty for the benefit of a group of
States or of al1 States and considered as attaching to that terri-
tory;
( h ) rights established by a treaty for the benefit of a group of States
or of al1 States and relating to the use of any territory, or to
restrictions upon its use, and considered as attaching to that
territory."
According to Slovakia, "[this] article [too] can be considered to be one
of those provisions of the Vienna Convention that represent the codifica-
tion of customary international law". The 1977 Treaty is said to fall
within its scoDe because of its "suecific characteristics . . . which ulace it
in the category of treaties of a localized or territorial character". Slovakia
also described the Treaty as one "which contains boundary provisions
and lays down a specific territorial régime" which operates in the interest
of al1 Danube riparian States, and as "a dispositive treaty, creating rights
in rem, independently of the legal personality of its original signatories".
Here, Slovakia relied on the recognition by the International Law Com-
mission of the existence of a "special rule" whereby treaties "intended to
establish an objective régime" must be considered as binding on a suc-
cessor State (OfJicial Records of the United Nations Conferencc on the
Succession ofStutes in respect of Treaties, Vol. I I I , doc. AICONF.80I16I
Add.2, p. 34). Thus, in Slovakia's view, the 1977 Treaty was not one
which could have been terminated through the disappearance of one of
the original parties.
123. The Court does not find it necessary for the purposes of the
present case to enter into a discussion of whether or not Article 34 of the
1978 Convention reflects the state of customary international law. More
relevant to its present analysis is the particular nature and character of
the 1977 Treaty. An examination of this Treaty confirms that, aside from
its undoubted nature as a joint investment, its major elements were the
proposed construction and joint operation of a large, integrated and indi-
visible complex of structures and installations on specific parts of the
respective territories of Hungary and Czechoslovakia along the Danube.
The Treaty also established the navigational régime for an important sec-
tor of an international waterway, in particular the relocation of the main
international shipping lane to the bypass canal. In so doing, it inescap-
ably created a situation in which the interests of other users of the Dan-
PROJECT (JUDGMENT)
ube were affected. Furthermore, the interests of third States were expressly
acknowledged in Article 18, whereby the parties undertook to ensure
"uninterrupted and safe navigation on the international fairway" in
accordance with their obligations under the Convention of 18 August
1948 concerning the Régime of Navigation on the Danube.
In its Commentary on the Draft Articles on Succession of States in

respect of Treaties, adopted at its twenty-sixth session, the International
Law Commission identified "treaties of a territorial character" as having
been regarded both in traditional doctrine and in modern opinion as un-
affected by a succession of States (OfJicial Records of the United Nations
Conference on the Succession of States in respect of Treaties, Vol. III,
doc. A/CONF.80/16/Add.2, p. 27, para. 2). The draft text of Article 12,
which reflects this principle, was subsequently adopted unchanged in the
1978 Vienna Convention. The Court considers that Article 12 reflects a
rule of customary international law; it notes that neither of the Parties
disputed this. Moreover, the Commission indicated that "treaties con-
cerning water rights or navigation on rivers are commonly regarded as
candidates for inclusion in the category of territorial treaties" (ibid.,
p. 33, para. 26). The Court observes that Article 12, in providing only,
without reference to the treaty itself, that rights and obligations of a ter-
ritorial character established by a treaty are unaffected by a succession of
States, appears to lend support to the position of Hungary rather than of
Slovakia. However the Court concludes that this formulation was devised
rather to take account of the fact that, in many cases, treaties which had
established boundaries or territorial régimes were no longer in force
( i b i d , pp. 26-37). Those that remained in force would nonetheless bind a
successor State.
Taking al1 these factors into account, the Court finds that the content
of the 1977 Treaty indicates that it must be regarded as establishing a
territorial régime within the meaning of Article 12 of the 1978 Vienna
Convention. It created rights and obligations "attaching tomthe parts of
the Danube to which it relates; thus the Treaty itself cannot be affected
by a succession of States. The Court therefore concludes that the 1977
Treaty became binding upon Slovakia on 1 January 1993.
124. It might be added that Slovakia also contended that, while still a
constituent part of Czechoslovakia, it played a role in the development of
the Project, as it did later, in the most critical phase of negotiations with
Hungary about the fate of the Project. The evidence shows that the Slo-
vak Government passed resolutions prior to the signing of the 1977
Treaty in preparation for its implementation; and again, after signature,
expressing its support for the Treaty. It was the Slovak Prime Minister
who attended the meeting held in Budapest on 22 April 199 1 as the Pleni-
potentiary of the Federal Government to discuss questions arising out of
the Project. I t was his successor as Prime Minister who notified his Hun-
PROJECT (JL'DC~MENT)
garian counterpart by letter on 30 July 1991 of the decision of the Gov-

ernment of the Slovak Republic, as well as of the Government of the
Czech and Slovak Federal Republic, to proceed with the "provisional
solution" (see paragraph 63 above); and who wrote again on 18 Decem-
ber 1991 to the Hungarian Minister without Portfolio, renewing an
earlier suggestion that a joint commission be set up under the auspices of
the European Communities to consider possible solutions. The Slovak
Prime Minister also wrote to the Hungarian Prime Minister in May 1992
on the subject of the decision taken by the Hungarian Government to
terminate the Treaty, informing him of resolutions passed by the Slovak
Government in response.
It is not necessary, in the light of the conclusions reached in para-
graph 123 above, for the Court to determine whether there are legal con-
sequences to be drawn from the prominent part thus played by the Slo-
vak Republic. Its role does, however, deserve mention.
125. The Court now turns to the other legal consequences arising from
its Judgment.
As to this, Hungary argued that future relations between the Parties, as
far as Variant C is concerned, are not governed by the 1977 Treaty. It
claims that it is entitled, pursuant to the Convention of 1976 on the
Regulation of Water Management Issues of Boundary Waters, to "50%
of the natural flow of the Danube at the point at which it crosses the
boundary below ~ u n o v o "and considers that the Parties
"are obliged t o enter into negotiations in order to produce the result
that the water conditions along the area from below Cunovo to
below the confluence at Sap become jointly defined water conditions
as required by Article 3 (u) of the 1976 Convention".
Hungary moreover indicated that any mutually accepted long-term dis-

charge régime must be "capable of avoiding damage, including especially
damage to biodiversity prohibited by the [1992 Rio Convention on Bio-
logical Diversity]". It added that "a joint environmental impact assess-
ment of the region and of the future of Variant C structures in the con-
text of the sustainable development of the region" should be carried out.
126. Hungary also raised the question of financial accountability for

the failure of the original project and stated that both Parties accept the
fact that the other has "proprietary and financial interests in the residues
of the original Project and that an accounting has to be carried out".
Furthermore, it noted that:
"Other elements of damage associated with Variant C on Hungar-
ian territory also have to be brought into the accounting . . ., as well
as electricity production since the diversion",
and that: "The overall situation is a complex one, and it may be most
easily resolved by some form of lump sum settlement."
127. Hungary stated that Slovakia had incurred international respon-

sibility and should make reparation for the damage caused to Hungary
by the operation of Variant C. In that connection, it referred, in the con-
text of reparation of the damage to the environment, to the rule of res-
titutio in integrum, and called for the re-establishment of "joint control
by the two States over the installations maintained as they are now", and
the "re-establishment of the flow of [the] waters to the level at which it
stood prior to the unlawful diversion of the river". It also referred to
reparation of the damage to the fauna, the flora, the soil, the sub-soil, the
groundwater and the aquifer, the damages suffered by the Hungarian
population on account of the increase in the uncertainties weighing on its
future (pretium doloris), and the damage arising from the unlawful use,
in order to divert the Danube, of installations over which the two Parties
exercised joint ownership.
Lastly, Hungary called for the "cessation of the continuous unlawful
acts" and a "guarantee that the same actions will not be repeated", and
asked the Court to order "the permanent suspension of the operation of
Variant Cm.
128. Slovakia argued for its part that Hungary should put an end to its
unlawful conduct and cease to impede the application of the 1977 Treaty,
taking account of its "flexibility and of the important possibilities of
development for which it provides, o r even of such amendments as might
be made to it by agreement between the Parties, further to future nego-
tiations". It stated that joint operations could resume on a basis jointly
agreed upon and emphasized the following:
"whether Nagymaros is built as originally planned, or built else-

where in a different form, or, indeed, not built at all, is a question to
be decided by the Parties some time in the future.
Provided the bypass canal and the Gabtikovo Power-station and

Locks - both part of the original Treaty, and not part of Variant C
- remain operational and economically viable and efficient, Slo-
vakia is prepared to negotiate over the future roles of Dunakiliti
and Cunovo, bearing Nagymaros in mind."
It indicated that the Gabtikovo power plant would not operate in peak
mode "if the evidence of environmental damage [was] clear and accepted
by both Parties". Slovakia noted that the Parties appeared to agree that
an accounting should be undertaken "so that, guided by the Court's find-
ings on responsibility, the Parties can try to reach a global settlement". It
added that the Parties would have to agree on how the sums due are to be
paid.
129. Slovakia stated that Hungary must make reparation for the
deleterious consequences of its failures to comply with its obligations,
"whether they relate to its unlawful suspensions and abandonments of
works o r to its formal repudiation of the Treaty as from May 1992", and
that compensation should take the form of a rrstitutio in integrum. It
indicated that "Unless the Parties come to some other arrangement by
concluding an agreement, restitutio in integrurn ought to take the form of
a return by Hungary, ut a future tirne, to its obligations under the
Treaty" and that "For compensation to be 'full' . . ., to 'wipe out al1 the
consequences of the illegal act' . . ., a payment of compensation must . . .
be added to the rcstitutio . . ." Slovakia claims compensation which must
include both interest and loss of profits and should cover the following
heads of damage, which it offers by way of guidance:
(1) Losses caused t o Slovakia in the GabCikovo sector: costs incurred
from 1990 to 1992 by Czechoslovakia in protecting the structures of
the GIN project and adjacent areas; the cost of maintaining the old
bed of the River Danube pending the availability of the new naviga-
tion canal, from 1990 to 1992; losses to the Czechoslovak navigation
authorities due to the unavailability of the bypass canal from 1990 to
1992 ; construction costs of Variant C (1 990- 1992).
(2) Losses caused to Slovakia in the Nagymaros sector: losses in the field
of navigation and flood protection incurred since 1992 by Slovakia
due to the failure of Hungary to proceed with the works.
(3) Loss of electricity production.

Slovakia also calls for Hungary to "give the appropriate guarantees
that it will abstain from preventing the application of the Treaty and the
continuous operation of the system". It argued from that standpoint that
it is entitled "to be given a formal assurance that the internationally
wrongful acts of Hungary will not recur':, and it added that "the main-
tenance of the closure of the Danube at Cunovo constitutes a guarantee
of that kind", unless Hungary gives an equivalent guarantee "within the
framework of the negotiations that are to take place between the Parties".
130. The Court observes that the part of its Judgment which answers
the questions in Article 2, paragraph 1 , of the Special Agreement has a
declaratory character. 1t deals with the past conduct of the Parties and
determines the lawfulness o r unlawfulness of that conduct between 1989
and 1992 as well as its effects on the existence of the Treaty.
131. Now the Court has, on the basis of the foregoing findings, to
PROJECT (JUDGMENT)
determine what the future conduct of the Parties should be. This part of
the Judgment is prescriptive rather than declaratory because it deter-
mines what the rights and obligations of the Parties are. The Parties will
have to seek agreement on the modalities of the execution of the Judg-
ment in the light of this determination, as they agreed to d o in Article 5
of the Special Agreement.
132. In this regard it is of cardinal importance that the Court has

found that the 1977 Treaty is still in force and consequently governs the
relationship between the Parties. That relationship is also determined by
the rules of other relevant conventions to which the two States are party,
by the rules of general international law and, in this particular case, by
the rules of State responsibility; but it is governed, above all, by the
applicable rules of the 1977 Treaty as a les speciulis.
133. The Court, however, cannot disregard the fact that the Treaty has
not been fully implemented by either party for years, and indeed that
their acts of commission and omission have contributed to creating the
factual situation that now exists. Nor can it overlook that factual situa-
tion - o r the practical possibilities and impossibilities to which it gives
rise - when deciding on the legal requirements for the future conduct of
the Parties.
This does not mean that facts - in this case facts which flow from
wrongful conduct - determine the law. The principle e.u injuria jus non
oritur is sustained by the Court's finding that the legal relationship
created by the 1977 Treaty is preserved and cannot in this case be treated
as voided by unlawful conduct.
What is essential, therefore, is that the factual situation as it has devel-
oped since 1989 shall be placed within the context of the preserved and
developing treaty relationship, in order to achieve its object and purpose
in so far as that is feasible. For it is only then that the irregular state of
affairs which exists as the result of the failure of both Parties to comply
with their treaty obligations can be remedied.
134. What might have been a correct application of the law in 1989 o r
1992, if the case had been before the Court then, could be a miscarriage
of justice if prescribed in 1997. The Court cannot ignore the fact that the
GabEikovo power plant has bpen in operation for nearly five years, that
the bypass canal which feeds the plant receives its water from a signifi-
cantly smaller reservoir formed by a dam which is built not at Dunakiliti
but at Cunovo, and that the plant is operated in a run-of-the-river mode
and not in a peak hour mode as originally foreseen. Equally, the Court
cannot ignore the fact that, not only has Nagymaros not been built, but
that, with the effective discarding by both Parties of peak power opera-
tion, there is n o longer any point in building it.
135. As the Court has already had occasion to point out, the 1977
Treaty was not only a joint investment project for the production of
PROJECT (JUDGMENT)
energy, but it was designed to serve other objectives as well: the improve-
ment of the navigability of the Danube, flood control and regulation of
ice-discharge, and the protection of the natural environment. None of
these objectives has been given absolute priority over the other, in spite
of the emphasis which is given in the Treaty to the construction of a
System of Locks for the production of energy. None of them has lost its
importance. In order to achieve these objectives the parties accepted obli-
gations of conduct, obligations of performance, and obligations of result.
136. It could be said that that part of the obligations of performance

which related to the construction of the System of Locks - in so far as
they were not yet implemented before 1992 - have been overtaken by
events. It would be an administration of the law altogether out of touch
with reality if the Court were to order those obligations to be fully re-
instated and the works at Cunovo to be demolished when the objectives
of the Treaty can be adequately served by the existing structures.
137. Whether this is indeed the case is, first and foremost, for the
Parties to decide. Under the 1977 Treaty ils several objectives must be
attained in an integrated and consolidated programme, to be developed
in the Joint Contractual Plan. The Joint Contractual Plan was, until
1989, adapted and amended frequently to better fit the wishes of the
parties. This Plan was also expressly described as the means to achieve
the objectives of maintenance of water quality and protection of the envi-
ronment.
138. The 1977 Treaty never laid down a rigid system, albeit that the
construction of a system of locks at GabEikovo and Nagymaros was pre-
scribed by the Treaty itself. In this respect, however, the subsequent posi-
tions adopted by the parties should be taken into consideration. Not only
did Hungary insist on terminating construction at Nagymaros, but
Czechoslovakia stated, on various occasions in the course of negotia-
tions, that it was willing to consider a limitation or even exclusion of
operation in peak hour mode. In the latter case the construction of the
Nagymaros dam would have become pointless. The explicit terms of the
Treaty itself were therefore in practice acknowledged by the parties to be
negotiable.
139. The Court is of the opinion that the Parties are under a legal obli-
gation, during the negotiations to be held by virtue of Article 5 of the
Special Agreement, to consider, within the context of the 1977 Treaty, in
what way the multiple objectives of the Treaty can best be served, keep-
ing in mind that al1 of them should be fulfilled.
140. It is clear that the Project's impact upon, and its implications for,
the environment are of necessity a key issue. The numerous scientific
reports which have been presented to the Court by the Parties - even if
their conclusions are often contradictory - provide abundant evidence
that this impact and these implications are considerable.
In order to evaluate the environmental risks, current standards must be
taken into consideration. This is not only allowed by the wording of
Articles 15 and 19, but even prescribed, to the extent that these
articles impose a continuing - and thus necessarily evolving - obliga-
tion on the parties to maintain the quality of the water of the Danube
and to protect nature.
The Court is mindful that, in the field of environmental protection,
vigilance and prevention are required on account of the often irreversible
character of damage to the environment and of the limitations inherent
in the very mechanism of reparation of this type of damage.
Throughout the ages, mankind has, for economic and other reasons,
constantly interfered with nature. In the past, this was often done with-
out consideration of the effects upon the environment. Owing to new
scieritific insights and to a growing awareness of the risks for mankind -
for present and future generations - of pursuit of such interventions at

an unconsidered and unabated pace, new norms and standards have been
developed, set forth in a great number of instruments during the last two
decades. Such new norms have to be taken into consideration, and such
new standards given proper weight, not only when States contemplate
new activities but also when continuing with activities begun in the past.
This need to reconcile economic development with protection of the envi-
ronment is aptly expressed in the concept of sustainable development.
For the purposes of the present case, this means that the Parties
together should look afresh at the effects on the environment of the
operation of the GabCikovo power plant. In particular they must find a
satisfactory solution for the volume of water to be released into the old
bed of the Danube and into the side-arms on both sides of the river.
141. It is not for the Court to determine what shall be the final result
of these negotiations to be conducted by the Parties. It is for the Parties
themselves t o find a n agreed solution that takes account of the objectives
of the Treaty, which must be pursued in a joint and integrated way, as
well as the norms of international environmental law and the principles
of the law of international watercourses. The Court will recall in this con-
text that, as it said in the North Seu Continental Shelfcases:
"[the Parties] are under an obligation so to conduct themselves that

the negotiations are meaningful, which will not be the case when
either of them insists upon its own position without contemplating
any modification of it" (I.C.J. Reports 1969, p. 47, para. 85).
142. What is required in the present case by the rule puctu sunt ser-
vanda, as reflected in Article 26 of the Vienna Convention of 1969 on the
Law of Treaties, is that the Parties find an agreed solution within the co-
operative context of the Treaty.
Article 26 combines two elements, which are of equal importance. It
provides that "Every treaty in force is binding upon the parties to it and
PROJECT (JUDGMENT)
must be performed by them in good faith." This latter element, in the

Court's view, implies that, in this case, it is the purpose of the Treaty, and
the intentions of the parties in concluding it, which should prevail over
its literal application. The principle of good faith obliges the Parties to
apply it in a reasonable way and in such a manner that its purpose can be
realized.
143. During this dispute both Parties have called upon the assistance
of the Commission of the European Communities. Because of the dia-
metrically opposed positions the Parties took with regard to the required
outcome of the trilateral talks which were envisaged, those talks did not
succeed. When, after the present Judgment is given, bilateral negotiations
without pre-conditions are held, both Parties can profit from the assist-
ance and expertise of a third party. The readiness of the Parties to accept
such assistance would be evidence of the good faith with which they con-
duct bilateral negotiations in order to give effect to the Judgment of the
Court.
144. The 1977 Treaty not only contains a joint investment programme,
it also establishes a régime. According to the Treaty, the main structures
of the System of Locks are the joint property of the Parties; their opera-
tion will take the form of a co-ordinated single unit; and the benefits of
the project shall be equally shared.
Since the Court has found that the Treaty is still in force and that,
under its terms, the joint régime is a basic element, it considers that,
unless the Parties agree otherwise, such a régime should be restored.
145. Article 10, paragraph 1 , of the Treaty states that works of the
System of Locks constituting the joint property of the contracting parties
shall be operated, as a co-ordinated single unit and in accordance with
jointly agreed operating and operational procedures, by the authorized
operating agency of the contracting party in whose territory the works
are built. Paragraph 2 of that Article states that works on the System of
Locks owned by one of the contracting parties shall be independently
operated or maintained by the agencies of that contracting party in the
jointly prescribed manner.
The Court is of the opinion that the works at ~ u n o v oshould become
a jointly operated unit within the meaning of Article 10, paragraph 1, in
view of their pivotal role in the operation of what rem+ of the Project
and for the water-management régime. The dam at Cunovo has taken
over the role which was originally destined for the works at Dunakiliti,
and therefore should have a similar status.
146. The Court also concludes that Variant C, which it considers oper-
ates in a manner incompatible with the Treaty, should be made to con-
form to it. By associating Hungary, on an equal footing, in its operation,
management and benefits, Variant C will be transformed from a de facto
status into a treaty-based régime.
It appears from various parts of the record that, given the current state
151. The Court has been asked by both Parties to determine the con-
sequences of the Judgment as they bear upon payment of damages.
According to the Preamble to the Special Agreement, the Parties agreed
that Slovakia is the sole successor State of Czechoslovakia in respect of
rights and obligations relating to the GabCikovo-Nagymaros Project.
Slovakia thus may be liable to pay compensation not only for its own
wrongful conduct but also for that of Czechoslovakia, and it is entitled to
be compensated for the damage sustained by Czechoslovakia as well as
by itself as a result of the wrongful conduct of Hungary.
152. The Court has not been asked at this stage to determine the quan-
tum of damages due, but to indicate on what basis they should be paid.
Both Parties claimed to have suffered considerable financial losses and
both claim pecuniary compensation for them.
It is a well-established rule of international law that an injured State is
entitled to obtain compensation from the State which has committed an
internationally wrongful act for the damage caused by it. In the present
Judgment, the Court has concluded that both Parties committed interna-
tionally wrongful acts, and it has noted that those acts gave rise to the
damage sustained by the Parties; consequently, Hungary and Slovakia
are both under an obligation to pay compensation and are both entitled
to obtain compensation.
Slovakia is accordingly entitled to compensation for the damage suf-
fered by Czechoslovakia as well as by itself as a result of Hungary's deci-
sion to suspend and subsequently abandon the works at Nagymaros and
Dunakiliti, as those actions caused the postponement of the putting into
operation of the GabCikovo power plant, and changes in its mode of
operation once in service.
Hungary is entitled to compensation for the damage sustained as a
result of the diversion of the Danube, since Czechoslovakia, by putting
into operation Variant C , and Slovakia, in maintaining it in service,
deprived Hungary of its rightful part in the shared water resources, and
exploited those resources essentially for their own benefit.
153. Given the fact, however, that there have been intersecting wrongs
by both Parties, the Court wishes to observe that the issue of compen-
sation could satisfactorily be resolved in the framework of an overall
settlement if each of the Parties were to renounce or cancel al1 financial
claims and counter-claims.
154. At the same time, the Court wishes to point out that the settle-
ment of accounts for the construction of the works is different from the
issue of compensation, and must be resolved in accordance with the 1977
Treaty and related :instruments. If Hungary is to share in the operation
and benefits of the Cunovo complex, it must pay a proportionate share of
the building and running costs.
155. For these reasons,
( 1 ) Having regard to Article 2, paragraph 1, of the Special Agreement,

A. By fourteen votes to one,
Finds that Hungary was not entitled to suspend and subsequently
abandon, in 1989, the works on the Nagymaros Project and on the
part of the GabCikovo Project for which the Treaty of 16 September
1977 and related instruments attributed responsibility t o it;
: Pre.~ident Schwebel; Vice-Prrsident Weeramantry ; Judges

I N FAVOUK
Oda, Bedjaoui, Guillaume, Ranjeva, Shi, Fleischhauer, Koroma,
Vereshchetin, Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc
Skubiszewski;
AGAINST:Judge Herczegh;
B. By nine votes to six,
Finds that Czechoslovakia was entitled to proceed, in November
1991, to the "provisional solution" as described in the terms of the
Special Agreement ;
I N FAVOUR: Vice-President Weeramantry ; Judges Oda, Guillaume, Shi,
Koroma, Vereshchetin, Parra-Aranguren, Kooijmans; Judge ad hoc
Skubiszewski ;
AGAINST : President Schwebel ; Judges Bedjaoui, Ranjeva, Herczegh,
Fleischhauer, Rezek;
C. By ten votes to five,
Finds that Czechoslovakia was not entitled to put into operation,
from October 1992, this "provisional solution";
President Schwebel ; Vice-President Weeramantry ; Judges
I N FAVOUR :
Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Kooij-
mans, Rezek;
AGAINST:Judges Oda, Koroma, Vereshchetin, Parra-Aranguren; Judge
ad hoc Skubiszewski;
D. By eleven votes to four,
Finds that the notification, on 19 May 1992, of the termination of
the Treaty of 16 September 1977 and related instruments by Hungary
did not have the legal effect of terminating them;
IN FAVOUR:Vice-Pre~ident Weeramantry; Judges Oda, Bedjaoui,
Guillaume, Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren,
Kooijmans; Judge ad hoc Skubiszewski;
AGAINST : President Schwebel ; Judgrs Herczegh, Fleischhauer, Rezek ;
Having regard to Article 2, paragraph 2, and Article 5 of the Special
Agreement,
A. By twelve votes to three,
Finds that Slovakia, as successor to Czechoslovakia, became a
party to the Treaty of 16 September 1977 as from 1 January 1993;
: President Schwebel ; Vice-President Weeramantry ; Judges

I N FAVOUR
Oda, Bedjaoui, Guillaume, Ranjeva. Shi, Koroma, Vereshchetin,
Parra-Aranguren, Kooijmans: Judge ad hoc Skubiszewski;
AGAINST:
Judges Herczegh, Fleischhauer, Rezek ;
B. By thirteen votes to two,
Finds that Hungary and Slovakia must negotiate in good faith in
the light of the prevailing situation, and must take al1 necessary meas-
ures to ensure the achievement of the objectives of the Treaty of
16 September 1977, in accordance with such modalities as they may
agree upon ;
I N FAVOUR: President Schwebel; Vice-Prr.sident Weeramantry; Judges
Oda, Bedjaoui, Guillaume, Ranjeva, Shi. Koroma, Vereshchetin,
Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc Skubiszewski;
AGAINST : Judges Herczegh, Fleischhauer ;
C. By thirteen votes to two,

Fin& that, unless the Parties otherwise agree, a joint operational
régime must be established in accordance with the Treaty of 16 Sep-
tember 1977;
I N FAVOUR : President Schwebel ; Vice-Pre.~identWeeramantry ; Judges
Oda, Bedjaoui, Guillaume, Ranjeva, Shi, Koroma, Vereshchetin,
Parra-Aranguren. Kooijmans, Rezek ; Judge ad hoc Skubiszewski;
AGAINST : Judges Herczegh, Fleischhauer :
D. By twelve votes to three,

Finds that, unless the Parties otherwise agree, Hungary shall com-
pensate Slovakia for the damage sustained by Czechoslovakia and by
Slovakia on account of the suspension and abandonment by Hun-
gary of works for which it was responsible; and Slovakia shall com-
pensate Hungary for the damage it has sustained on account of the
putting into operation of the "provisional solution" by Czechoslo-
vakia and its maintenance in service by Slovakia;
I N FAVOUR: President Schwebel; Vice-Puesident Weeramantry; Judges
Bedjaoui. Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Parra-
Aranguren, Kooijmans, Rezek; Judge ad hoc Skubiszewski;
AGAINST: Judges Oda. Koroma, Vereshchetin;
PROJECT (JUDGMENT)
E. By thirteen votes to two,

Finds that the settlement of accounts for the construction and
operation of the works must be effected in accordance with the rele-
vant provisions of the Treaty of 16 September 1977 and related
instruments, taking due account of such measures as will have been
taken by the Parties in application of points 2 B and 2 C of the
present operative paragraph.
I N FAVOUR: President Schwebel; Vice-President Weeramantry; Judges
Oda, Bedjaoui, Guillaume, Ranjeva. Shi, Koroma. Vereshchetin,
Parra-Aranguren, Kooijmans, Rezek; J u d p ad hoc Skubiszewski;
Judges Herczegh, Fleischhauer.

AGAINST:
Done in English and in French, the English text being authoritative, at

the Peace Palace, The Hague, this twenty-fifth day of September, one
thousand nine hundred and ninety-seven, in three copies, one of which
will be placed in the archives of the Court and the others transmitted to
the Covernment of the Republic of Hungary and the Government of the
Slovak Republic, respectively.
(Signed) Stephen M . SCHWEBEL,

President.
(Signed) Eduardo VALENCIA-OSPINA,
Registrar.
President SCHWEBEL and Judge REZEKappend declarations to the

Judgment of the Court.
Vice-President WEERAMANTRY and Judges BEDJAOUIand KOROMA

append separate opinions to the Judgment of the Court.
Judges ODA, RANJEVA, HERCZEGH, FLEISCHHAUER,

VERESHCHETIN and
PARRA-ARANGUREN and Judge ad hoc SKUBISZEWSKI
append dissenting
opinions to the Judgment of the Court.
(Initiullcd) S.M.S.
(Initialled) E.V.O.
DECLARATION O F PRESIDENT SCHWEBEL
1 a m largely in agreement with the Court's Judgment and accordingly

1 have voted for most of its operative paragraphs. 1 have voted against
operative paragraph 1 B essentially because 1 view the construction of
"Variant Cm,the "provisional solution", as inseparable from its being put
into operation. 1 have voted against operative paragraph 1 D essentially
because 1 a m not persuaded that Hungary's position as the Party initially
in breach deprived it of a right to terminate the Treaty in response to
Czechoslovakia's material breach, a breach which in my view (as indi-
cated by my vote on paragraph 1 B) was in train when Hungary gave
notice of termination.
At the same time, 1 fully support the conclusions of the Court as to

what should be the future conduct of the Parties and as to disposition of
issues of compensaion.
(Signed) Stephen M. SCHWEBEL.

DECLARATION OF JUDGE REZEK
1. Although in my opinion the 1977 Treaty is no longer in force, 1 am

able to accept the conclusions of the majority of the Members of the
Court as to the main points, that is to say, the practical consequences of
this Judgment and the programme of measures which it invites the States
in dispute to implement.
My opposition to the majority is based primarily on theoretical con-
victions relating to the nature of the 1977 Treaty and to the effects upon
a bilateral commitment in course of performance (and not yet exhibiting
the territorial effects that it was intended one day to produce) of the col-
lective wrongfulness embodied in the existence, on the part of both the
States involved, of attitudes denoting that the animus contrahendi which
supposedly united them in the past has now disappeared.
2. A commitment such as the bilateral 1977 Treaty cannot be subject
to ordinary denunciation during performance; however, the Hungarian
notification of 19 May 1992 was not an ordinary denunciation. It was
made after both Parties had failed to fulfil their mutual obligations,
Hungary by abandoning works for which it was responsible, Czecho-
slovakia by adopting Variant C. 1 consider the Note of 19 May 1992 to
be the formal act of termination of a treaty which, for different reasons
and on more than one previous occasion, each of the Parties had
already repudiated. 1 therefore see here an unorthodox type of abroga-
tion.
3. In my opinion, the rule pacta sunt servanda means that the treaty
creates reciprocal rights between the parties on the basis of a convergence
of interests, a pooling of sovereign wills which in al1 probability will con-
tinue to coincide over time. When. on both sides of the treaty process,
there is a lack of rigour in doing what has been agreed, the commitment
weakens and becomes vulnerable to formal repudiation by one of the
parties, irrespective of the question of which party was the first to neglect
its duties, and it hardly matters that the parties lacked rigour in different
ways. Treaties derive their force from the will of the States which con-
clude them. They do not have an ob,jective value which makes them sacred
regardless of those common intentions.
4. 1 consider that the 1977 Treaty is no longer in existence, having

been abrogated by the attitude of both parties. From that conclusion,
however, 1 infer consequences similar to those which the majority infers
from the continued existence of the Treaty. First, there is what has been
accomplished, and accomplished in good faith. There is, also and above
GABCIKOVO-NAGYMAROSPROJECT (DECL. REZEK) 87
all, the very principle of good faith which must lead here to the fulfilment
of reciprocal duties remaining from a treaty which has not been applied
through the joint fault of the parties.
(Signed) Francisco REZEK.

SEPARATE OPINION OF VICE-PRESIDENT WEERAMANTRY
This case raises a rich array of environmentally related legal issues. A

discussion of some of them is essential to explain my reasons for voting
as 1 have in this very difficult decision. Three issues on which 1 wish to
make some observations, supplementary to those of the Court, are the
role played by the principle of sustainable development in balancing the
competing demands of development and environmental protection; the
protection given to Hungary by what 1 would describe as the principle of
continuing environmental impact assessment; and the appropriateness of
the use of inter partes legal principles, such as estoppel, for the resolution
of problems with a n erga omnes connotation such as environmental
damage.
Had the possibility of environmental harm been the only consideration

t o be taken into account in this regard, the contentions of Hungary could
well have proved conclusive.
Yet there are other factors to be taken into account - not the least
important of which is the developmental aspect, for the Gabëikovo
scheme is important to Slovakia from the point of view of development.
The Court must hold the balance even between the environmental con-
siderations and the developmental considerations raised by the respective
Parties. The principle that enables the Court to d o so is the principle of
sustainable development.
The Court has referred to it as a concept in paragraph 140 of its Judg-
ment. However, 1 consider it to be more than a mere concept, but as a
principle with normative value which is crucial to the determination of
this case. Without the benefits of its insights, the issues involved in this
case would have been difficult to resolve.
Since sustainable development is a principle fundamental to the deter-
mination of the competing considerations in this case, and since, although
it has attracted attention only recently in the literature of international
law, it is likely to play a major role in determining important environ-
mental disputes of the future, it calls for consideration in some detail.
Moreover, this is the first occasion on which it has received attention in
the jurisprudence of this Court.
PROJECT (SEP.OP.WEERAMANTRY)
When a major scheme, such as that under consideration in the present

case, is planned and implemented, there is always the need to weigh con-
siderations of development against environmental considerations, as their
underlying juristic bases - the right to development and the right to
environmental protection - are important principles of current interna-
tional law.
In the present case we have, on the one hand, a scheme which, even in
the attenuated form in which it now remains, is important to the welfare
of Slovakia and its people, who have already strained their own resources
and those of their predecessor State to the extent of over two billion dol-
lars to achieve these benefits. Slovakia, in fact, argues that the environ-
ment would be improved through the operation of the Project as it would
help to stop erosion of the river bed, and that the scheme would be an
effective protection against floods. Further, Slovakia has traditionally
been short of electricity, and the power generated would be important to
its economic development. Moreover, if the Project is halted in its tracks,
vast structural works constructed at great expense, even prior to the
repudiation of the Treaty, would be idle and unproductive, and would
pose an economic and environmental problem in themselves.
On the other hand, Hungary alleges that the Project produces, or is

likely to produce, ecological damage of many varieties, including harm to
river bank fauna and flora, damage to fish breeding, damage to surface
water quality, eutrophication, damage to the groundwater régime, agri-
culture, forestry and soil, deterioration of the quality of drinking water
reserves, and sedimentation. Hungary alleges that many of these dangers
have already occurred and more will manifest themselves, if the scheme
continues in operation. In the material placed before the Court, each of
these dangers is examined and explained in considerable detail.
How does one handle these considerations? Does one abandon the
Project altogether for fear that the latter consequences might emerge?
Does one proceed with the scheme because of the national benefits it
brings, regardless of the suggested environmental damage? O r does one
steer a course between, with due regard to both considerations, but
ensuring always a continuing vigilance in respect of environmental harm?
It is clear that a principle must be followed which pays due regard to

both considerations. 1s there such a principle, and does it command rec-
ognition in international law? 1 believe the answer to both questions is in
the affirmative. The principle is the principle of sustainable development
and, in my view, it is a n integral part of modern international law. It is
clearly of the utmost importance, both in this case and more generally.
1 would observe, moreover, that both Parties in this case agree on the
90 GABCIKOVO-NAGYMAROS PROJECT (SEP.OP.WEERAMANTRY)
applicability to this dispute of the principle of sustainable development.

Thus, Hungary states in its pleadings that:
"Hungary and Slovakia agree that the principle of sustainable
development, as formulated in the Brundtland Report, the Rio Dec-
laration and Agenda 21 is applicable to this dispute . . .
International law in the field of sustainable development is now

sufficiently well established, and both Parties appear to accept this."
(Reply of Hungary, paras. 1.45 and 1.47.)
Slovakia states that "inherent in the concept of sustainable develop-
ment is the principle that developmental needs are to be taken into
account in interpreting and applying environmental obligations"
(Counter-Memorial of Slovakia, para. 9.53; see also paras. 9.54-9.59).
Their disagreement seems to be not as to the existence of the principle

but, rather, as to the way in which it is to be applied to the facts of this
case (Reply of Hungary, para. 1.45).
The problem of steering a course between the needs of development
and the necessity to protect the environment is a problem alike of the law
of development and of the law of the environment. Both these vital and
developing areas of law require, and indeed assume, the existence of a
principle which harmonizes both needs.
T o hold that no such principle exists in the law is to hold that current
law recognizes the juxtaposition of two principles which could operate in
collision with each other, without providing the necessary basis of prin-
ciple for their reconciliation. The untenability of the supposition that the
law sanctions such a state of normative anarchy suffices to condemn a
hypothesis that leads to so unsatisfactory a result.
Each principle cannot be given free rein, regardless of the other. The
law necessarily contains within itself the principle of reconciliation. That
principle is the principle of sustainable development.
This case offers a unique opportunity for the application of that prin-
ciple, for it arises from a Treaty which had development as its objective,
and has been brought to a standstill over arguments concerning environ-
mental considerations.
The people of both Hungary and Slovakia are entitled to development
for the furtherance of their happiness and welfare. They are likewise
entitled to the preservation of their human right to the protection of
their environment. Other cases raising environmental questions have been
considered by this Court in the context of environmental pollution arising
from such sources as nuclear explosions, which are far removed from
development projects. The present case thus focuses attention, as no
other case has done in the jurisprudence of this Court, on the question of
the harmonization of developmental and environmental concepts.
(a) Development as a Principle of lnternutional Luw
Article 1 of the Declaration on the Right to Development, 1986,
asserted that "The right to development is an inalienable human right."
This Declaration had the overwhelming support of the international
'
community and has been gathering strength since then2. Principle 3 of
the Rio Declaration, 1992, reaffirmed the need for the right to develop-
ment to be fulfilled.
"Development" means, of course, development not merely for the sake
of development and the economic gain it produces, but for its value in
increasing the sum total of human happiness and welfare'. That could
perhaps be called the first principle of the law relating to development.
T o the end of improving the sum total of human happiness and wel-
fare, it is important and inevitable that development projects of various
descriptions, both minor and major, will be launched from time to time
in al1 parts of the world.
(b) Environrnentul Protection as a Principle of' Internutionul Law
The protection of the environment is likewise a vital part of contem-

porary human rights doctrine, for it is a sine qua non for numerous
human rights such as the right to health and the right to life itself. It is
' 146 votes in favour, with one vote against.

Many years prior to the Declaration of 1986, this right had received strong support in
the field of human rights. As early as 1972, at the Third Session of the Institut interna-
tional de droits de l'homme, Judge Kéba Mbaye, President of the Supreme Court of Sen-
egal and later to be a Vice-President of this Court, argued strongly that such a right
existed. He adduccd detailed argument in support of his contention from economic. politi-
cal and moral standpoints. (See K. Mbaye, "Le droit au développement comme un droit
de l'homme", Rcixuc tles droits de l'liommc, 1972, Vol. 5, p. 503.)
Nor was the principle without influential voices in its support from the developed world
as well. Indeed, the genealogy of the idea can be traced much further back even to the
conceptual stages of the Universal Declaration of Huinan Rights, 1948.
Mrs. Eleanor Roosevelt, who from 1946 to 1952 served as the Chief United States rep-
resentative to Committee III, Humanitarian, Social and Cultural Affairs, and was the first
Chairperson, from 1946 to 1951. of the United Nations Human Rights Commission, had
observed in 1947, "We will have to bear in mind that we are writing a bill of rights for
the world and that one of the most important rights is the opportunity for development."
(M. Glen Johnson, "The Contribution of Eleanor and Franklin Roosevelt to the Develop-
ment of the International Protection for Human Rights", Huriion Rigllts Quurterljl, 1987,
Vol. 9, p. 19, quoting Mrs. Roosevelt's column, "My Day". 6 February 1947.)
General Assembly resolution 642 (VII) of 1952, likewise, referred expressly to "inte-
grated economic and social development".
The Preamble to the Declaration on the Right to Development (1986) recites that
development is a comprehensive, economic. social and cultural process which aims ai the
constant improvement and well-being of the entire population and of al1 individuals on
the basis of their active, free and meaningful participation in development and in the fair
distribution of the benefits resulting therefrom.
92 GABC~KOVO-NAGYMAROSPROJECT (SEP.OP.WEERAMANTRY)
scarcely necessary to elaborate on this, as damage to the environment can

impair and undermine al1 the human rights spoken of in the Universal
Declaration and other human rights instruments.
While, therefore, al1 peoples have the right to initiate development

projects and enjoy their benefits, there is likewise a duty to ensure that
those projects d o not significantly damage the environment.
(c) Sustainable Development as u Principle of International Lali~

After the early formulations of the concept of development, it has been
recognized that development cannot be pursued to such a point as to
result in substantial damage to the environment within which it is to
occur. Therefore development can only be prosecuted in harmony with
the reasonable demands of environmental protection. Whether develop-
ment is sustainable by reason of its impact on the environment will, of
course, be a question to be answered in the context of the particular situa-
tion involved.
It is thus the correct formulation of the right to development that that
right does not exist in the absolute sense, but is relative always to its
tolerance by the environment. The right to development as thus refined
is clearly part of modern international law. It is compendiously referred
to as sustainable development.
The concept of sustainable development can be traced back, beyond
the Stockholm Conference of 1972, to such events as the Founex meeting
of experts in Switzerland in June 197 1 4; the conference on environment
and development in Canberra in 1971; and United Nations General
Assembly resolution 2849 (XXVI). It received a powerful impetus from
the Stockholm Declaration which, by Principle 11, stressed the essential-
ity of development as well as the essentiality of bearing environmental
considerations in mind in the developmental process. Moreover, many
other Principles of that Declaration5 provided a setting for the develop-
ment of the concept of sustainable development6 and more than one-
third of the Stockholm Declaration related to the harmonization of envi-
ronment and development '. The Stockholm Conference also produced
an Action Plan for the Human Environment8.
See Sustuinable Dri~rlopmrntand Intc,rnational Lait,, Winfried Lang (ed.), 1995. p. 143.
For example, Principles 2. 3, 4, 5, 8, 9, 12, 13 and 14.

These principles are thought to be based to a large extent on the Founex Report -
see Sustainahle Drvrlopment and Interncrtional Law, Winfried Lang (ed.), supra, p. 144.
' lhid.
Action Plan for the Human Environment, United Nations doc. A/CONF.48/14/
Rev.1. See especially Chapter II which devoted its final section to development and the
environment.
The international community had thus been sensitized to this issue
even as early as the early 1970s, and it is therefore no cause for surprise
that the 1977 Treaty, in Articles 15 and 19, made special reference to
environmental considerations. Both Parties to the Treaty recognized the
need for the developmental process to be in harmony with the environ-
ment and introduced a dynamic element into the Treaty which enabled
the Joint Project to be kept in harmony with developing principles of
international law.
Since then, it has received considerable endorsement from al1 sections
of the international community, and at al1 levels.
Whether in the field of multilateral treatiesy, international declara-

tionslO; the foundation documents of international organizations"; the
practices of international financial institutions12; regional declarations
and planning document^'^; o r State practiceI4, there is a wide and gen-
eral recognition of the concept. The Bergen ECE Ministerial Declaration
on Sustainable Development of 15 May 1990, resulting from a meeting of
For example, the United Nations Convention to Combat Desertification (The United
Nations Convention to Combat Desertification in those Countries Experiencing Serious
Droughts andlor Desertification, Particularly in Africa). 1994, Preamble, Art. 9 (1); the
United Nations Framework Convention on Climate Change, 1992 (ILM. 1992,
Vol. XXXI, p. 849. Arts. 2 and 3); and the Convention on Biological Diversity (ILM,
1992. Vol. XXXI, p. 818, Preamble, Arts. I and 10 - "sustainable use of biodiversity").
"' For example, the Rio Declaration on Environment and Development, 1992, empha-
sizes sustainable development in several of its Principles (e.g., Principles 4, 5, 7, 8, 9, 20,
21, 22. 24 and 27 refer expressly to "sustainable development" which can be described as
the central concept of the entire document); and the Copenhagen Declaration, 1995
(paras. 6 and 8). following on the Copenhagen World Summit for Social Development,
1995.
' ' For example, the North American Free Trade Agreement (Canada, Mexico, United
States) (NAFTA, Preamble, ILM, 1993. Vol. XXXII, p. 289); the World Trade Organiza-
tion (WTO) (paragraph 1 of the Preamble of the Marrakesh Agreement of 15 April 1994,
establishing the World Trade Organization, speaks of the "optimal use of the world's
resources in accordance with the objective of sustainable development" - ILM, 1994.
Vol. XXXIII. pp. 1143-1 144); and the European Union (Art. 2 of the ECT).
l 2 For example, the World Bank Group, the Asian Development Bank. the African
Development Bank, the Inter-American Development Bank, and the European Bank for
Reconstruction and Development al1 subscribe to the principle of sustainable develop-
ment. Indeed, since 1993, the World Bank has convened an annual conference related to
advancing environmentally and socially sustainable development (ESSD).
l 3 For example, the Langkawi Declaration on the Environment, 1989, adopted by the
"Heads of Government of the Commonwealth representing a quarter of the world's popu-
lation" which adopted "sustainable development" as its central theme; Ministerial Dec-
laration on Environmentally Sound and Sustainable Development in Asia and the Pacific,
Bangkok, 1990 (doc. 38a. p. 567); and Action Plan for the Protection and Management of
the Marine and Coastal Environment of the South Asian Seas Region. 1983 (para. 10:
"sustainable, environmentally sound development").
l 4 For example, in 1990. the Dublin Declaration by the European Council on the Envi-
ronmental Imperative stated that there must be an acceleration of effort to ensure that
economic development in the Community is "sustainable and environmentally sound"
94 GABCIKOVO-NAGYMAROS PROJECT (SEP. OP. WEERAMANTRY)
Ministers from 34 countries in the ECE region, and the Commissioner

for the Environment of the European Community, addressed "The chal-
lenge of sustainable development of humanity" (para. 6), and prepared a
Bergen Agenda for Action which included a consideration of the Eco-
nomics of Sustainability, Sustainable Energy Use, Sustainable Industrial
Activities, and Awareness Raising and Public Participation. It sought to
develop "sound national indicators for sustainable development"
(para. 13 ( b ) )and sought to encourage investors to apply environmental
standards required in their home country to investments abroad. It also
sought to encourage UNEP, UNIDO, UNDP, IBRD, ILO, and appro-
priate international organizations to support member countries in ensur-
ing environmentally sound industrial investment, observing that industry
and government should CO-operate for this purpose (para. 15 (f))15. A
Resolution of the Council of Europe, 1990, propounded a European
Conservation Strategy to meet, inter alia, the legitimate needs and aspi-
rations of al1 Europeans by seeking to base economic, social and cultural
development on a rational and sustainable use of natural resources, and
to suggest how sustainable development can be achieved 1 6 .
The concept of sustainable development is thus a principle accepted

not merely by the developing countries, but one which rests on a basis of
worldwide acceptance.
In 1987, the Brundtland Report brought the concept of sustainable
development to the forefront of international attention. In 1992, the Rio
Conference made it a central feature of its Declaration, and it has been a
focus of attention in al1 questions relating to development in the devel-
oping countries.
(Bulletin of' the Europeun Cornmuniries, 6, 1990, Ann. II. p. 18). It urged the Commu-
nity and Member States to play a major role to assist developing countries in their efforts
to achieve "long-term sustainable development" (ibid., p. 19). I t said, in regard to coun-
tries of Central and Eastern Europe, that remedial measures must be taken "to ensure
that their future economic development is sustainable" (ihid.). It also expressly recited
that :
"As Heads of State or Government of the European Community, . . . [w]e intend

that action by the Community and its Member States will be developed . . . on the
principles of sustainable development and preventive and precautionary action."
(Ihid., Conclusions of the Presidency. Point 1.36, pp. 17-18.)
I s Basic Documents o f Internationril Environmentcil Lait.. Harald Hohmann (ed.),
Vol. 1, 1992, p. 558.
l 6 Ibid., p. 598.
PROJECT (SEP.OP.WEERAMANTRY)
The principle of sustainable development is thus a part of modern

international law by reason not only of its inescapable logical necessity,
but also by reason of its wide and general acceptance by the global com-
munity.
The concept has a significant role to play in the resolution of environ-
mentally related disputes. The components of the principle come from
well-established areas of international law - human rights, State respon-
sibility, environmental law, economic and industrial law, equity, territo-
rial sovereignty, abuse of rights, good neighbourliness - to mention a
few. It has also been expressly incorporated into a number of binding and
far-reaching international agreements, thus giving it binding force in the
context of those agreements. It offers an important principle for the reso-
lution of tensions between two established rights. It reaffirms in the arena
of international law that there must be both development and environ-
mental protection, and that neither of these rights can be neglected.
The general support of the international community does not of course

mean that each and every member of the community of nations has given
its express and specific support to the principle nor is this a require-
-
ment for the establishment of a principle of customary international law.
As Brierly observes :
"lt would hardly ever be practicable, and al1 but the strictest of
positivists admit that it is not necessary, to show that every state has
recognized a certain practice, just as in English law the existence of a
valid local custom or custom of trade can be established without
proof that every individual in the locality, or engaged in the trade,
has practised the custom. This test of generul recognition is neces-
sarily a vague one; but it is of the nature of customary law, whether
national or international . . ." l 7
Evidence appearing in international instruments and State practice (as

in development assistance and the practice of international financial insti-
tutions) likewise amply supports a contemporary general acceptance of
the concept.
Recognition of the concept could thus, fairly, be said to be world-

wide lx.
I 7 J. Brierly, Tlie Lait, uf Nations, 6th ed., 1963. p. 61 ; emphasis added.

'"ee, further, L. Kriimer, EC Treaty und Environt~ietitalLu~i,,2nd ed.. 1995, p. 63.
analysing the environmental connotation in the word "sustainable" and tracing it to the
Brundtland Report.
(d) The Need for International Law to Druw upon the WorldS Diver-
sity of Cultures in Hurmonizing Development and Environmental Pro-
tection
This case, which deals with a major hydraulic project, is an opportu-

nity to tap the wisdom of the past and draw from it some principles
which can strengthen the concept of sustainable development, for every
development project clearly produces an effect upon the environment,
and humanity has lived with this problem for generations.
This is a legitimate source for the enrichment of international law,
which source is perhaps not used to the extent which its importance
warrants.
In drawing into international law the benefits of the insights available
from other cultures, and in looking to the past for inspiration, interna-
tional environmental law would not be departing from the traditional
methods of international law, but would, in fact, be following in the path
charted out by Grotius. Rather than laying down a set of principles a
priori for the new discipline of international law, he sought them also a
posteriori from the experience of the past, searching through the whole
range of cultures available to him for this purpose '? From them, he drew
the durable principles which had weathered the ages, on which to build
the new international order of the future. Environmental law is now in a
formative stage, not unlike international law in its early stages. A wealth
of past experience from a variety of cultures is available to it. It would be
pity indeed if it were left untapped merely because of attitudes of formal-
ism which see such approaches as not being entirely de rigueur.
1 cite in this connection a n observation of Sir Robert Jennings that, in

taking note of different legal traditions and cultures, the International
Court (as it did in the Western Sahara case):
"was asserting, not negating, the Grotian subjection of the totality
of international relations t o international law. It seems t o the writer,
indeed, that at the present juncture in the development of the inter-
national legal system it may be more important to stress the impera-
tive need to develop international law t o comprehend within itself
the rich diversity of cultures, civilizations and legal traditions . . ."'O
Moreover, especially at the frontiers of the discipline of international
I y Julius Stone, Human Law and Humun Justice, 1965, p. 6 6 : "It was for this reason
that Grotius added to his theoretical deductions such a mass of concrete examples from
history."
*" Sir Robert Y. Jennings, "Universal International Law in a Multicultural World", in
International Law and the Grotiun Heritage: A Cornmernorative Colloquiurn on tlze Occa-
sion of the Fourth Centrnary of the Birth o f Hugo Grotius. edited and published by the
T.M.C. Asser Institute, The Hague, 1985, p. 195.
97 GABCIKOVO-NAGYMAROS PROJECT (SEP.OP. WEERAMANTRY)
law, it needs to be multi-disciplinary, drawing from other disciplines such

as history, sociology, anthropology, and psychology such wisdom as may
be relevant for its purpose. On the need for the international law of the
future to be interdisciplinary, 1 refer to another recent extra-judicial
observation of that distinguished former President of the Court that:
"there should be a much greater, and a practical, recognition by

international lawyers that the rule of law in international affairs, and
the establishment of international justice, are inter-disciplinary sub-
ject~"~'.
Especially where this Court is concerned, "the essence of true univer-
~ a l i t y " ' ~of the institution is captured in the language of Article 9 of the
Statute of the International Court of Justice which requires the "repre-
sentation of the main ,forms of'civilizution and of the principal legal sys-
tems of the world" (emphasis added). The struggle for the insertion of the
italicized words in the Court's Statute was a hard one, led by the Japa-
nese representative, Mr. Adatci2', and, since this concept has thus been
integrated into the structure and the Statute of the Court, 1 see the Court
as being charged with a duty to draw upon the wisdom of the world's
several civilizations, where such a course can enrich its insights into the
matter before it. The Court cannot afford to be monocultural, especially
where it is entering newly developing areas of law.
This case touches an area where many such insights can be drawn to
the enrichment of the developing principles of environmental law and to
a clarification of the principles the Court should apply.
It is in this spirit that 1 approach a principle which, for the first time in
its jurisprudence, the Court is called upon to apply - a principle which
will assist in the delicate task of balancing two considerations of enor-
mous importance to the contemporary international scene and, poten-
tially, of even greater importance to the future.
(e) Some Wisdom from the Pus/ Reluting to S~rstuinubleDevelopment
There are some principles of traditional legal systems that can be

woven into the fabric of modern environmental law. They are specially
pertinent to the concept of sustainable development which was well
" "International Lawyers and the Progressive Development of International Law",

T/~c~ory of'lnrernutioticil LUM.ut tlic, Tlrrc~.slioldcf'ilir 21st Ceniurj., Jerzy Makarczyk (ed.),
1996, p. 423.
'Z Jennings, "Universal International Law in a Multicultural World", op. cit., p. 189.
" On this subject of contention, see Procc;s- Verhcru'r oJ' rlir P/.oc~~dings qf t l i ~Com-
niirrc~c~.
16 June-24 July 1920. esp. p. 136.
recognized in those systems. Moreover, several of these systems have
particular relevance t o this case, in that they relate t o the harnessing of
streams and rivers and show a concern that these acts of human interfer-
ence with the course of nature should always be conducted with due
regard to the protection of the environment. In the context of environ-
mental wisdom generally, there is much to be derived from ancient civi-
lizations and traditional legal systems in Asia, the Middle East, Africa,
Europe, the Americas, the Pacifie, and Australia - in fact, the whole
world. This is a rich source which modern environmental law has left
largely untapped.
As the Court has observed, "Throughout the ages mankind has, for eco-
nomic and other reasons, constantly interfered with nature." (Judgment,
para. 140.)
The concept of reconciling the needs of development with the protec-
tion of the environment is thus not new. Millennia ago these concerns
were noted and their twin demands well reconciled in a manner so mean-
ingful as to carry a message to Our age.
1 shall start with a system with which 1 a m specially familiar, which

also happens to have specifically articulated these two needs - develop-
ment and environmental protection - in its ancient literature. 1 refer to
the ancient irrigation-based civilization of Sri Lanka24. It is a system
which, while recognizing the need for development and vigorously imple-
menting schemes t o this end, at the same time specifically articulated the
need for environmental protection and ensured that the technology it
employed paid due regard to environmental considerations. This concern
for the environment was reflected not only in its literature and its techno-
logy, but also in its legal system, for the felling of certain forests was pro-
hibited, game sanctuaries were established, and royal edicts decreed that
the natural resource of water was to be used to the last drop without any
wastage.
This system, some details of which 1 shall touch on25, is described by

24 This was not an isolated civilization, but one which maintained international rela-
tions with China, on the one hand, and with Rome (1st c.) and Byzantium (4th c.), on the
other. The presence of its ambassadors at the Court of Rome is recorded by Pliny (lib. vi
c. 24), and is noted by Grotius - De Jure Pruedue Commentarius, G . L. Williams and
W. H. Zeydol (eds.), Clussics oJ'In~ernufionalLaw, James B. Scott (ed.), 1950, pp. 240-241.
This diplomatic representation also receives mention in world literature (e.g., Milton,
Paradise Reguined, Book IV). See also Grotius' reference to the detailed knowledge of
Ceylon possessed by the Romans - Grotius, Mare Liberutx (Freedom of the Seas),
trans. R. van Deman Magoffin, p. 12. The island was known as Taprobane to the Greeks,
Serendib to the Arabs, Lanka to the Indians, Ceilao to the Portuguese, and Zeylan to the
Dutch. Its trade with the Roman Empire and the Far East was noted by Gibbon
25 It is an aid to the recapitulation of the matters mentioned that the edicts and works
1 shall refer to have been the subject of written records, maintained contemporaneously
and over the centuries. See footnote 38 below.
99 GABC~KOVO-NAGYMAROS PROJECT (SEP.OP.WEERAMANTRY)
Arnold Toynbee in his panoramic survey of civilizations. Referring to it

as an "amazing system of w a t e r ~ o r k s " ~Toynbee
~, describes2' how hill
streams were tapped and their water guided into giant storage tanks,
some of them four thousand acres in e ~ t e n t from~ ~ , which channels ran
on to other larger tanks29.Below each great tank and each great channel
were hundreds of little tanks, each the nucleus of a village.
The concern for the environment shown by this ancient irrigation system
has attracted study in a recent survey of the Social and Environmental
Effects of Large Dams3(', which observes that among the environmentally
related aspects of its irrigation systems were the "erosion control tank"
which dealt with the problem of silting by being so designed as to collect
deposits of silt before they entered the main water storage tanks. Several
erosion control tanks were associated with each village irrigation system.
The significance of this can well be appreciated in the context of the present
case, where the problem of silting has assumed so much importance.
Another such environmentally related measure consisted of the "forest

tanks" which were built in the jungle above the village, not for the pur-
pose of irrigating land, but to provide water to wild animals3'.
2 h Arnold J. Toynbee, A S t u d j ~of Hisrory, Somervell's Abridgment, 1960, Vol. 1,

p. 257.
27 Ibid., p. 81, citing John Still, The Jungle Tide.
2"everal of these are still in use, e.g., the Tissaiveivu (3rd c. BC); the Nuivaralt~eivu(3rd
c. B C ) ; the Minneriyu funk (275 A D ) ; the K u l a i v r ~ t .(5th
~ c. A D ) ; and the Purukrania
Sunzudru (Sea of Parakrama, I l th c. AD).
2y The technical sophistication of this irrigation system has been noted also in Joseph
Needham's monumental work on Science and Civilizution in China. Needham, in describ-
ing the ancient irrigation works of China. makes numerous references to the contempo-
rary irrigation works of Ceylon, which he discusses at some length. See especially, Vol. 4,
Physics und Phy.c.icu1 Technology, 1971, pp. 368 et .seq. Also p. 215: "We shall see how
skilled the ancient Ceylonese were in this art."
30 Edward Goldsmith and Nicholas Hildyard, The Social und Eni~ironmentulEffrcts o f
Large Danzs, 1985, pp. 291-304.
' For these details. see Goldsmith and Hildyard, ibid., pp. 291 and 296. The same
authors observe :
"Sri Lanka is covered with a network of thousands of man-made lakes and ponds,
known locally as tanks (after tanque, the Portuguese word for reservoir). Some are
truly massive, many are thousands of years old, and almost al1 show a high degree of
sophistication in their construction and design. Sir James Emerson Tennent, the nine-
teenth century historian, marvelled in particular at the numerous channels that were
dug underneath the bed of each lake in order to ensure that the flow of water was
'constant and equal as long as any water remained in the tank'."
This system of tanks and channels, some of them two thousand years
old, constitute in their totality several multiples of the irrigation
works involved in the present scheme. They constituted development as it
was understood at the time, for they achieved in Toynbee's words, "the
arduous feat of conquering the parched plains of Ceylon for agricul-
turemS2.Yet they were executed with meticulous regard for environmen-
ta1 concerns, and showed that the concept of sustainable development
was consciously practised over two millennia ago with much success.
Under this irrigation system, major rivers were dammed and reservoirs
created, on a scale and in a manner reminiscent of the damming which
the Court saw on its inspection of the dams in this case.
This ancient concept of development was carried out on such a large

scale that, apart from the major r e s e r v ~ i r s of
~ ~which
, there were several
32 Toynbee, op. cit., p. 81. Andrew Carnegie, the donor of the Peace Palace, the seat of
this Court, has described this ancient work of development in the following terms:
"The position held by Ceylon in ancient days as the great granary of Southern Asia
explains the precedence accorded to agricultural pursuits. Under native rule the
whole island was brought under irrigation by means of artificial lakes. constructed by
dams across ravines, many of them of great extent one still existing is twenty miles
-
in circumference - but the system has been allowed to fall into decay." (Andrew
Carnegie, Round the World, 1879 (1933 ed.), pp. 155-160.)
33 The first of these major tanks was thought to have been constructed in 504 BC (Sir
James Emerson Tennent, Crqlon, 1859, Vol. 1, p. 367). A few examples, straddling 15 cen-
turies, were :
the Vavunik-kulam (3rd c. BC)(1,975 acres water surface, 596 million cubic feet water
capacity); the P a ~ ~ u t k u l a(3rd
m or 2nd c. BC)(2,029 acres water surface, 770 million
cubic feet water capacity) - Parker, Ancic~ntCeylun, 1909. pp. 363, 373;
- the Ti.~suwei.ia(3rd c. BC);and the Nuivuraiven'a (3rd c. RC),both still in service and
still supplying water to the ancient capital Anuradhapura. which is now a provincial
capital;
- the Minneriya tank (275 AD)("The reservoir upwards of twenty miles in circumference
. . . the great embankment remains nearly perfect") (Tennent, op. rit., Vol. II. p. 600);
the T o p a ~ c r ~ v(4th
u c. AD).area considerably in excess of 1,000 acres;
the Kaluiveli~a(5th c. A D )
- embankment 3.25 miles long, rising to a height of 40 feet,
tapping the river Kala Oya and supplying water to the capital Anuradhapura through
a canal 50 miles in length;
the Yodaiveiva (5th c. AD).Needham describes this as "A most grandiose conception
. . . the culmination of Ceylonese hydraulics . . . an artificial lake with a six-and-a-half
mile embankment on three sides of a square, sited on a sloping plain and not in a river
valley at all." It was fed by a 50-mile canal from the river Malvatu-Oya;
- the Parakruniu Samudra (Sea of Parakrama) (1 lth c. AD),embankment 9 miles long,

up to 40 feet high, enclosing 6,000 acres of water area. (Brohier, Ancient Irrigution
Works in Ce~,lon,1934, p. 9.)
dozen, between 25,000 and 30,000 minor reservoirs were fed from these
reservoirs through an intricate network of ~ a n a l s ~ ~ .
The philosophy underlying this gigantic s y ~ t e m which

~ ~ , for upwards
of two thousand years served the needs of man and nature alike, was
articulated in a famous principle laid down by an outstanding monarch 3"
that "not even a little water that comes from the rain is to flow into the
ocean without being made useful to man"". According to the ancient
c h r o n i c l e ~ ~these
~ , works were undertaken "for the benefit of the coun-
try", and "out of compassion for al1 living creature~"~'.This complex of
irrigation works was aimed at making the entire country a granary. They
embodied the concept of development par p.\-cellencc.
Just as development was the aim of this system, it was accompanied by
a systematic philosophy of conservation dating back to at least the third
century BC. The ancient chronicles record that when the King (Devan-
ampiya Tissa, 247-207 BC) was on a hunting trip (around 223 BC), the
Arahat40 Mahinda, son of the Emperor Asoka of India, preached to him
7 4 On the irrigation systems, generally, see H. Parker, Anrient Crylon, op. cit.: R. L.
Brohier, Ancient Irrigation Works in Cejdon, 1934; Edward Goldsmith and Nicholas
Hildyard, op. rit., pp. 291-304. Needham, describing the ancient canal system of China,
observes that "it was comparable only with the irrigation contour canals of Ceylon, not
with any work in Europe" (op. rit., Vol. 4. p. 359).
" "so vast were the dimensions of some of these gigantic tanks that many still in exist-
ence cover an area from fifteen to twenty miles in circumference" (Tennent, op. cit., Vol. 1,
p. 364).
36 King Parakrama Bahu (1 153-1 186 AD). This monarch constructed or restored 163
major tanks, 2,376 minor tanks, 3,910 canals, and 165 dams. His masterpiece was the Sea
of Parakrama, referred to in footnote 33. All of this was conceived within the environ-
mental philosophy of avoiding any wastage of natural resources.
'7 See Toynbee's reference to this:

"The idea underlying the system was very great. It was intended by the tank-build-
ing kings that none of the rain which fell in such abundance in the mountains should
reach the sea without paying tribute to man on the way." (Op. cit., p. 81.)
38 The Mal~avarnsa,Turnour's translation. Chap. XXXVII, p. 242. The Mrrhavatn.su

was the ancient historical chronicle of Sri Lanka, maintained contemporaneously by
Buddhist monks, and an important source of dating for South Asian history. Commen-
cing at the close of the 4th century AD, and incorporating earlier chronicles and oral
traditions dating back a further eight centuries, this constitutes a continuous record for
over 15 centuries - see The Muhuvumsu or. The Greut C/~ronirleof' Ceylon. translated
into English by Wilhelm Geiger, 1912, Introduction, pp. ix-xii. The King's statement,
earlier referred to, is recorded in the Muhui~an~saas follows:
"In the realm that is subject to me are . . . but few fields which are dependent on
rivers with permanent flow . . . Also by many mountains, thick jungles and by wide-
spread swamps my kingdom is much straitened. Truly, in such a country not even a
little water that comes from the rain must flow into the ocean without being made
useful to man." ( I h i d . Chap. LXVIII, verses 8-12. )
39 See also, on this matter. Emerson Tennent, op. rit., Vol. 1, p. 31 1.
40 A person who has attained a very high state of enlightenment. For its more technical
meaning, see Walpola Rahula. History of Buddhism in Ccylon, 1956, pp. 217-221.
102 GABC~KOVO-NAGYMAROSPROJECT (SEP.OP. WEERAMANTRY)
a sermon on Buddhism which converted the king. Here are excerpts from
that sermon :
"O great King, the birds of the air and the beasts have as equal a
right to live and move about in any part of the land as thou. The
land belongs to the people and al1 living beings; thou art only the
guardian of it."4'
This sermon, which indeed contained the first principle of modern

environmental law - the principle of trusteeship of earth resources -
caused the king to start sanctuaries for wild animals - a concept which
continued to be respected for over twenty centuries. The traditional legal
system's protection of Sauna and flora, based on this Buddhist teaching,
extended well into the eighteenth c e n t ~ r y ~ ~ .
The sermon also pointed out that even birds and beasts have a right to
freedom from fear43.
The notion of not causing harm to others and hence sic utere tuo ut
alienum non luedus was a central notion of Buddhism. It translated well
into environmental attitudes. "Alienurn "in this context would be extended
by Buddhism to future generations as well, and to other component ele-
ments of the natural order beyond man himself, for the Buddhist concept
of duty had an enormously long reach.
This marked concern with environmental needs was reflected also in

royal edicts, dating back to the third century BC, which ordained that
certain primeval forests should on n o account be felled. This was because
adequate forest cover in the highlands was known to be crucial to the
irrigation system as the mountain jungles intercepted and stored the
monsoon They attracted the rain which fed the river and irriga-
tion systems of the country, and were therefore considered vital.
Environmental considerations were reflected also in the actual work of

construction and engineering. The ancient engineers devised a n answer to
the problem of silting (which has assumed much importance in the
present case), and they invented a device (the bisokotuwa o r valve pit),
the counterpart of the sluice, for dealing with this environmental prob-
41 This sermon is recorded in The Mahavamsa, Chap. XIV.

42 See K. N. Jayatilleke, "The Principles of International Law in Buddhist Doctrine",
Recueil des cours de l'Académie de droit international, Vol. 120, 1967, p. 558.
43 For this idea in the scriptures of Buddhism, see Digha Nikaya, III, Pali Text Society,
p. 850.
44 Goldsmith and Hildyard, op. cit., p. 299. See, also, R. L. Brohier, "The Interrelation
of Groups of Ancient Reservoirs and Channels in Ceylon", Journal of the Royal Asiatic
Society (Ceylon), 1937, Vol. 34, No. 90, p. 65. Brohier's study is one of the foremost
authorities on the subiect.
103 GABC~KOVO-NAGYMAROS PROJECT (SEP.OP. WEERAMANTRY)
lem45, by controlling the pressure and the quantity of the outflow of

water when it was released from the r e ~ e r v o i rWeirs
~ ~ . were also built, as
in the case of the construction involved in this case, for raising the levels
of river water and regulating its flow4'.
This juxtaposition in this ancient heritage of the concepts of develop-
ment and environmental protection invites comment immediately from
those familiar with it. Anyone interested in the human future would per-
ceive the connection between the two concepts and the manner of their
reconciliation.
Not merely from the legal perspective does this become apparent, but
even from the approaches of other disciplines.
Thus Arthur C. Clarke, the noted futurist, with that vision which has
enabled him to bring high science to the service of humanity, put his
finger on the precise legal problem we are considering when he observed:
"the small Indian Ocean island . . . provides textbook examples of many
modern dilemmas: development versus e n v i r ~ n m e n t " ~and
~ , proceeds
immediately to recapitulate the famous sermon, already referred to,
relating to the trusteeship of land, observing, "For as King Deva-
nampiya Tissa was told three centuries before the birth of Christ, we are
its guardians - not its ownet- S."^^
The task of the law is to convert such wisdom into practical terms -
45 H. Parker, Ancienr Ceylon, op. cit., p. 379:

"Since about the middle of the last century, open wells, called 'valve towers' when
they stand clear of the embankment or 'valve pits' when they are in it, have been built
in numerous reservoirs in Europe. Their duty is to hold the valves, and the lifting-
gear for working them, by means of which the outward flow of water is regulated or
totally stopped. Such also was the function of the bisokotu~vuof the Sinhalese engi-
neers; they were the first inventors of the valve-pit more than 2,100 years ago."
46 H. Parker, op. rit. Needham observes:

"Already in the first century AD they [the Sinhalese engineers] understood the
principle of the oblique weir . . . But perhaps the most striking invention was the
intake-towers or valve towers ( B i s o k o f u ~which
~ ~ j were fitted in the reservoirs per-
haps from the 2nd Century BC onwards, certainly from the 2nd Century AD . . . In
this way silt and scum-free water could be obtained and at the same time the pres-
sure-head was so reduced as to make the outflow controllable." (Joseph Needham,
Science and Civilization in China, op. cit.. Vol. 4, p. 372.)
47 K. M. de Silva, A Hisrory of Sri Lanka, 1981, p. 30.
48 Arthur C. Clarke, "Sri Lanka's Wildiife Heritage", Narional Geographic, August
1983, No. 2, p. 254; emphasis added.
49 Arthur C. Clarke has also written:
"Of al1 Ceylon's architectural wonders, however, the most remarkable - and cer-
tainly the most u s e f u l is the enormous irrigation system which, for over two thou-
Sand years, has brought prosperity to the rice farmers in regions where it may not
rain for six months at a time. Frequently ruined, abandoned and rebuilt, this legacy
of the ancient engineers is one of the island's most precious possessions. Some of its
artificial lakes are ten o r twenty kilometres in circumference, and abound with birds
and wildlife." (The View frorn Serendip, 1977, p. 121.)
and the law has often lagged behind other disciplines in so doing.
Happily for international law, there are plentiful indications, as recited
earlier in this opinion, of that degree of "general recognition among
States of a certain practice as 0b1igatory"~Oto give the principle of sustain-
able development the nature of customary law.
This reference to the practice and philosophy of a major irrigation civi-

lization of the pre-modern world5' illustrates that when technology on
this scale was attempted it was accompanied by a due concern for the
environment. Moreover, when so attempted, the necessary response from
the traditional legal system, as indicated above, was one of affirmative
steps for environmental protection, often taking the form of royal decrees,
apart from the practices of a sophisticated system of customary law
which regulated the manner in which the irrigation facilities were to be
used and protected by individual members of the public.
The foregoing is but one illustrative example of the concern felt by
prior legal systems for the preservation and protection of the environ-
ment. There are other examples of complex irrigation systems that have
sustained themselves for centuries. if not millennia.
My next illustration comes from two ancient cultures of sub-Saharan
Africa - those of the Sonjo and the Chagga, both Tanzanian t r i b e ~ ~ ~ .
Their complicated networks of irrigation furrows, collecting water from
the mountain streams and transporting it over long distances to the fields
below, have aroused the admiration of modern observers not merely for
their technical sophistication, but aiso for the durability of the complex
irrigation systems they fashioned. Among the Sonjo, it was considered to
be the sacred duty of each generation to ensure that the system was kept
in good repair and al1 able-bodied men in the villages were expected
to take part53. The system comprised a fine network of small canals,
reinforced by a superimposed network of larger channels. The water did
50 J. Brierly, The Luit. of Nations, op. rit., p. 61.

"It is possible that in no other part of the world are there to be found within the same
space the remains of so many works for irrigation, which are at the same time of such
great antiquity and of such vast magnitude as in Ceylon . . ." (Bailey, Report on Irriga-
tion in Uva, 1859; see also R. L. Brohier, Ancient Irrigation Works in Ceylon, op. rit.,
p. 1 ) ;
"No people in any age or country had so great practice and experience in the con-
struction of works for irrigation." (Sir James Emerson Tennent, op. rit., Vol. 1,
p. 468);
"The stupendous ruins of their reservoirs are the proudest monuments which
remain of the former greatness of their country. . . Excepting the exaggerated dimen-
sions of Lake Moeris in Central Egypt, and the mysterious 'Basin of Al Aram' . . . no
similar constructions formed by any race, whether ancient o r modern, exceed in
colossal magnitude the stupendous tanks of Ceylon." (Sir James Emerson Tennent,
quoted in Brohier, supra, p. 1.)
52 Goldsmith and Hildyard, op. cit., pp. 282-291.
53 Ibid., pp. 284-285.
not enter the irrigation area unless it was strictly required, and was not
allowed to pass through the plots in the rainy season. There was thus no
over-irrigation, salinity was reduced, and water-borne diseases avoided s4.
Sir Charles Dundas, who visited the Chagga in the first quarter of this
century, was much impressed by the manner in which, throughout the
long course of the furrows, society was so organized that law and order
prevailed5j. Care of the furrows was a prime social duty, and if a furrow
was damaged, even accidentally, one of the elders would sound a horn in
the evening (which was known as the cal1 to the furrows), and next morn-
ing everyone would leave their normal work and set about the business of
r e ~ a i rThe
~ ~ .furrow was a social asset owned by the clan5'.
Another example is that of the qanatss8 of Iran, of which there were

around 22,000, comprising more than 170,000 miles 59 of underground
irrigation channels built thousands of years ago, and many of them still
functioning60. Not only is the extent of this system remarkable, but also
the fact that it has functioned for thousands of years and, until recently,
supplied Iran with around 75 per cent of the water used for both irriga-
tion and domestic purposes.
By way of contrast, where the needs of the land were neglected, and
massive schemes launched for urban supply rather than irrigation, there
was disaster. The immense works in the Euphrates Valley in the third
millennium BC aimed not at improving the irrigation system of the local
tribesmen, but at supplying the requirements of a rapidly growing urban
society (e.g., a vast canal built around 2400 BC by King Entemenak) led
to seepage, flooding and over-irrigation6'. Traditional farming methods
and later irrigation systems helped to overcome the resulting problems of
waterlogging and salinization.
China was another site of great irrigation works, some of which are
still in use over two millennia after their construction. For example, the
ravages of the Mo river were overcome by an excavation through a
54 Goldsmith and Hildyard, op. cit., p. 284.

55 Sir Charles Dundas, Kilimanjaro and Its Peuples, 1924, p. 262.
56 Goldsmith and Hildyard, op. ci?., p. 289.
57 See further Fidelio T. Masao, "The Irrigation System in Uchagga: An Ethno-
Historical Approach", Tanzania Notes and Records, No. 75, 1974.
58 Qanats comprise a series of vertical shafts dug down to the aquifer and joined by a
horizontal canal - see Goldsmith and Hildyard, op. cit., p. 277.
59 Some idea of the immensity of this work can be gathered from the fact that it would
cost around one million dollars to build an eight kilometres qanat with an average tunnel
depth of 15 metres (ibid., p. 280).
60 Ibid., p. 277.
Goldsmith and Hildyard, op. cil., p. 308.
mountain and the construction of two great canals. Needham describes

this as "one of the greatest of Chinese engineering operations which, now
2,200 years old, is still in use t ~ d a y " ~An
~ . ancient stone inscription
teaching the art of river control says that its teaching "holds good for a
thousand a u t ~ m n s " ~
Such
~ . action was often inspired by the philosophy
recorded in the Tao Te Ching which "with its usual gemlike brevity says
'Let there be no action [contrary to Nature] and there will be nothing
that will not be well regulated'". h4 Here, from another ancient irrigation
civilization, is yet another expression of the idea of the rights of future
generations being served through the harmonization of human develop-
mental work with respect for the natural environment.
Regarding the Inca civilization at its height, it has been observed that
it continually brought new lands under cultivation by swamp drainage,
expansion of irrigation works, terracing of hillsides and construction of
irrigation works in dry zones, the goal being always the same - better
utilization of al1 resources so as to maintain an equilibrium between pro-
duction and c o n ~ u m p t i o n In
~ ~the
. words of a noted writer on this civi-
lization, "in this respect we can consider the Inca civilization triumphant,
since it conquered the eternal problem of mu'cimum use and conservation
of soir6('. 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. 1 have referred to some of the more
outstanding. Among them, 1 have examined one at greater length, partly
because it combined vast hydraulic development projects with a meticu-
lous 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 prin-
ciples 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 d o no less, achieving
a blend of the concepts of development and of conservation of the envi-
ronment, which alone does justice to humanity's obligations to itself and
h2 Op. cit., Vol. 4, p. 288.

63 Ibid, p. 295.
64 Needham, Science und Civilization Ni Chinu, Vol. 2, Hisrory of ScientiJic Thoughr.
1969, p. 69.
6 5 Jorge E. Hardoy, Pre-Columbiun Ciries, 1973, p. 415.
Oh John Collier, Los indios de lus Ameriras, 1960, cited in Hardoy, op. cil., p. 415. See
also Donald Collier, "Development of Civilization on the Coast of Peru", in Irrigution
Civilizations: A Conzparutivr S t u b . Julian H . Steward (ed.). 1955.
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
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 commerce68,and viewed land as a living entity which lived and
grew with the people and upon whose sickness and death the people like-
wise sickened and died; when Chinese and Japanese culture stressed the
need for harmony with nature; and when Aboriginal custom, while maxi-
mizing the use of al1 species of plant and animal life, yet decreed that no
land should be used by man to the point where it could not replenish
i t ~ e l f 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
67 On Native American attitudes to land, see Guruswamy, Palmer and Weston (eds.),
Inrernutionul Environmenral Luic and World Order, 1994, pp. 298-299. On American
Indian attitudes, see further J. Callicott, "The Traditional American Indian and Western
European Attitudes towards Nature: An Overview", Environmental Erhics. 1982, Vol. 4,
p. 293; A. Wiggins, "lndian Rights and the Environment", Yule J. Inr'l Law, 1993,
Vol. 18, p. 345; J. Hughes, Americun Indiun Ecology, 1983.
A Pacific Islander, giving evidence before the first Land Commission in the British
Solomons (1919-1924), poured scorn on the concept that land could be treated "as if it
were a thing like a box" which could be bought and sold, pointing out that land was
treated in his Society with respect and with due regard for the rights of future generations.
(Peter G. Sack, Land hetic,een TWOLun:r, 1993, p. 33.)
69 On Aboriginal attitudes to land, see E. M. Eggleston, Fear, Fai~ourund Affection,

1976. For al1 their concern with the environment, the Aboriginal people were not without
their own development projects:
"There were remarkable Aboriginal water control schemes at Lake Condah,
Toolondo and Mount William in south-western Victoria. These were major engineer-
ing feats, each involving several kilometres of Stone channels connecting swamp and
watercourses.
At Lake Condah, thousands of years before Leonardo da Vinci studied the hydro-
logy of the northern Italian lakes, the original inhabitants of Australia perfectly
understood the hydrology of the site. A sophisticated network of traps, weirs and
sluices were designed . . ." (Stephen Johnson et (il., Engineering and Society: An Aus-
fralian Perspective, 1995, p. 35.)
108 GABcIKOVO-NAGYMAROS PROJECT (SEP. OP. WEERAMANTRY)
to cause wanton damage, even to an enemy's territory in the course of

military conflict 'O.
Europe, likewise, had a deep-seated tradition of love for the environ-

ment, a prominent feature of European culture, until the industrial revo-
lution pushed these concerns into the background. Wordsworth in Eng-
land, 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 gradua1 disappearance
these writers lamented in their various ways7'.
Indeed, European concern with the environment can be traced back

through the millennia to such writers as Virgil, whose Georgics, com-
posed 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 ~ i t i e s ' ~ .
This survey would not be complete without a reference also to the prin-
ciples of Islamic law that inasmuch as al1 land belongs to God, land is
never the subject of human ownership, but is only held in trust, with al1
the connotations that follow of due care, wise management, and custody
for future generations. The first principle of modern environmental law
- the principle of trusteeship of earth resources is thus categorically
-
formulated in this system.
The ingrained values of any civilization are the source from which its
legal concepts derive, and the ultimate yardstick and touchstone of their
validity. This is so in international and domestic legal systems alike, Save
that international law would require a worldwide recognition of those
values. It would not be wrong to state that the love of nature, the desire
for its preservation, and the need for human activity to respect the
Nagendra Singh, Humun Rights and the Future of'Mankind, 1981, p. 93.
Commenting on the rise of naturalism in al1 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 sculp-
ture. Giotto, Chaucer, Wordsworth, Walt Whitman, and at the present day the New
England poet Robert Frost, are al1 akin to each other in this respect." (Alfred North
Whitehead, Science and the Modern World, 1926, p. 17.)
'* See the Georgics, Book I I , 1. 36ff.; 1. 458 ff. Also Encjclopaedia Britunnica, 1992,
Vol. 29, pp. 499-500.
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 inte-
grated into the corpus of the living law. As stated in the exhaustive study
of The Social und Environmental Effects of Large Dams, already cited,
"We should examine not only what has caused modern irrigation systems
to fuil; it is much more important to understand what has made tradi-
tional irrigation societies to succeed." 73
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 limat te"^^. Modern
environmental law needs to take note of the experience of the past in pur-
suing 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 latter75.
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 al1 citizens act upon it, that duty is part of the legal system
in q ~ e s t i o n ' ~ .
Moreover, when the Statute of the Court described the sources of
international law as including the "general principles of law recognized
73 Goldsmith and Hildyard, op. rit., p. 316

74 Ihid.
75 See, for example, M. Gluckman, African Truditional Law in Historical Perspective,
1974, The Ideas in Barotse Jurisprudence, 2nd ed., 1972, and The Judicial Process umong
the Burotse, 1955; A. L. Epstein, Juridical Techniques und the Judicial Process: A Study
in African Customary Law, 1954.
76 On the precision with which these systems assigned duties to their members, see
Malinowski, Crime und Custom in Suvuge Society, 1926.
PROJECT (SEP.OP. WEERAMANTRY)
by civilized nations", it expressly opened a door to the entry of such prin-

ciples into modern international law.
(f) Traditional Principlrs That Cun Assist in the Devrlopment 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, con-
cepts, and aspirational standards.
Among those which may be extracted from the systems already referred
to are such far-reaching principles as the principle of trusteeship of earth
resources, the principle of intergenerational rights, and the principle that
development and environmental conservation must go hand in hand.
Land is to be respected as having a vitality of its own and being integrally
linked to the welfare of the community. When it is used by humans, every
opportunity should be afforded to it to replenish itself. Since flora and
fauna have a niche in the ecological system, they must be expressly pro-
tected. There is a duty lying upon al1 members of the community to pre-
serve 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 al1 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 inter-
national legal system, and modern international law would only diminish
itself were it to lose sight of them - embodying as they d o 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
of human experience, it has an important part to play in the service of
international law.
(a) The Principle of Continuing Environmental Impact Assessment
Environmental Impact Assessment (EIA) has assumed an important

role in this case.
In a previous opinion771 have had occasion to observe that this prin-
ciple was gathering strength and international acceptance, and had
reached the level of general recognition at which this Court should take
notice of it 78.
1 wish in this opinion to clarify further the scope and extent of the envi-
ronmental impact principle in the sense that environmental impact assess-
ment means not merely an assessment prior to the commencement of the
project, but a continuing assessment and evaluation as long as the project
is in operation. This follows from the fact that EIA is a dynamic principle
and is not confined to a pre-project evaluation of possible environmental
consequences. As long as a project of some magnitude is in operation,
EIA must continue, for every such project can have unexpected conse-
quences; and considerations of prudence would point to the need for
continuous m~nitoring'~.
The greater the size and scope of the project, the greater is the need for
a continuous monitoring of its effects, for EIA before the scheme can
never be expected, in a matter so complex as the environment, to antici-
pate 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
77 Request for an Examinution of the Situation in Accorùunce ivith Puragraph 63 of the

Court> Judgment o f 2 0 December 1974 in the Nuclear Tests (New Zealand v. France)
Case. I.C.J. Reports 1995. p. 344. See, also, Legalil). of rhe Use by a State of Nucleur
Weapons in Armed Conflirt, 1. C.J. Reports 1996, p. 140.
7R Major international documents recognizing this principle (first established in
domestic law under the 1972 National Environmental Protection Act of the United
States) are the 1992 Rio Declaration (Principle 17); United Nations General Assembly
resolution 2995 (XXVII), 1972; the 1978 UNEP Draft Principles of Conduct (Prin-
ciple 5); Agenda 21 (paras. 7.41 ( h ) and 8.4); the 1974 Nordic Environmental Protection
Convention (Art. 6); the 1985 EC Environmental Assessment Directive (Art. 3); and the
1991 Espoo Convention. The status of the principle in actual practice is indicated
also by the fact that multilateral development banks have adopted it as an essential
precaution (World Bank Operational Directive 4.00).
Truil Smelfer Arhitration (United Nations, Reports of International Arbitral Aivards,
( R I A A ) , 1941, Vol. I I I , p. 1907).
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 Smrlter Arbitration recognized the
importance of continuous monitoring when, in a series of elaborate pro-
visions, it required the parties to monitor subsequent performance under
the decisionR'. 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 simi-
larly understood and applied.
The concept of monitoring and exchange of information has gathered

much recognition in international practice. Examples are the Co-opera-
tive Programme for the Monitoring and Evaluation of the Long-Range
Transmission of Air Pollutants in Europe, under the ECE Convention,
the Vienna Convention for the Protection of the Ozone Layer, 1985
(Arts. 3 and 4), and the Convention on Long-Range Transboundary Air
Pollution, 1979 (Art. 9)X2.There has thus been growing international
recognition of the concept of continuing monitoring as part of EIA.
The Court has indicated in its Judgment (para. 155 (2) (C)) that a joint
operational régime must be established in accordance with the Treaty
of 16 September 1977. A continuous monitoring of the scheme for its
environmental impacts will accord with the principles outlined, and be
a part of that operational régime. Indeed, the 1977 Treaty, with its
contemplated régime of joint operation and joint supervision, had itself
a built-in régime 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
R I A A . 1941. Vol. III, p. 1907.

See ihid., pp. 1934-1937.
82 ILM, 1979, Vol. XVIII, p. 1442.
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 con-
tinuous monitoring of the project to ensure compliance with the stand-
ards which the court has ordainedx3.
EIA, being a specific application of the larger general principle of
caution, embodies the obligation of continuing watchfulness and antici-
pation.
(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. Environmen-
ta1 standards and the relevant scientific knowledge of 1997 are far in
advance of those of 1977. As the Court has observed, new scientific
insights and a growing awareness of the risks for mankind have led to the
development of new norms and standards:
"Such new norms have to be taken into consideration, and such

new standards given proper weight, not only when States contem-
plate 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 per-
manent way the natural features that it dealt with, and forming a lasting
contribution to the economic welfare of both participants.
If the Treaty was to operate for decades into the future, it could not
X3 For a reference to environmentally related judicial initiatives of the courts of the

SAARC Region. see the Proceedings of the Regional Symposium on the Role of the Judi-
ciary in Promoting the Rule of Law in the Area of Sustainahle Development, held in
Colombo, Sri Lanka, 4-6 July 1997, shortly to be published.
1 14 GABC~KOVO-NAGYMAROSPROJECT (SEP.OP. WEERAMANTRY)
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 al1
treaties dealing with projects impacting on the environment. Unfortu-
nately, the Vienna Convention offers very little guidance regarding this
matter which is of such importance in the environmental field. The provi-
sion in Article 3 1, 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 instru-
ment has to be interpreted and applied within the framework of the entire
legal system prevailing at the time of the interpretation" (Legal Conse-
quences for States of the Continued Presence of South Africa in Numibia
(South West Africa) notwithstanding Security Council Resolution 276
(1970), Advisory Opinion, I.C.J. Reports 1971, p. 31, para. 53), and
these principles are "not limited to the rules of international law appli-
cable at the time the treaty was concluded" 84.
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 can-
not endorse actions which are a violation of human rights by the stand-
ards of their time merely because they are taken under a treaty which
dates back to a period when such action was not a violation of human
rights.
Support for this proposition can be sought from the opinion of Judge
Tanaka in South West Africa, when he observed that a new customary
law could be applied to the interpretation of an instrument entered into
more than 40 years previously (I.C.J. Reports 1966, pp. 293-294). The
ethical and human rights related aspects of environmental law bring it
within the category of law so essential to human welfare that we cannot
apply to today's problems in this field the standards of yesterday. Judge
Tanaka reasoned that a party to a humanitarian instrument has no right
to act in a manner which is today considered inhuman, even though the
action be taken under an instrument of 40 years ago. Likewise, no action
should be permissible which is today considered environmentally
" Oppenheim's Internurionul Law, R. Y . Jennings and A. Watts (eds.), 1992, p. 1275,
note 21.
unsound, even though it is taken under an instrument of more than
20 years ago.
Mention may also be made in this context of the observation of the

European Court of Human Rights in the Tyrer case that the Convention
is a "living instrument" which must be interpreted "in the light of
present-day conditions" s5.
It may also be observed that we are not here dealing with questions of
the validity of the Treaty which fall to be determined by the principles
applicable at the time of the Treaty, but with the application of the
TreatyS6. In the application of an environmental treaty, it is vitally
important that the standards in force ut the time of application would be
the governing standards.
A recognition of the principle of contemporaneity in the application of
environmental norms applies to the joint supervisory régime envisaged in
the Court's Judgment, and will be an additional safeguard for protecting
the environmental interests of Hungary.
(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 imple-
mentation 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 al1 the grounds which are advanced
today.
Secondly, Hungary, having entered into the Treaty, continued to treat

it as valid and binding for around 12 years. As early as 1981, the Gov-
8 5 Judgment of the Court. Tyrer case, 25 April 1978, para. 31, publ. Court A, Vol. 26,
at 15, 16.
86 See further Rosalyn Higgins, "Some Observations on the Inter-Temporal Rule
in International Law", in Theory of International Law ut the Threshold of the 2lst
Centurj, op. rit., p. 173.
1 16 GABC~KOVO-NAGYMAROSPROJECT (SEP.OP. WEERAMANTRY)
ernment of Hungary had ordered a reconsideration of the Project and

researchers had then suggested a postponement of the construction,
pending more detailed ecological studies. Yet Hungary went ahead with
the implementation of the Treaty.
Thirdly, not only did Hungary devote its own effort and resources to
the implementation of the Treaty but, by its attitude, it left Czechoslo-
vakia 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 Hun-
gary that Czechoslovakia was spending vast funds on the Project -
resources clearly so large as to strain the economy of a State whose
economy was not particularly strong.
Fourthly, Hungary's action in so entering into the Treaty in 1977 was

confirmed by it as late as October 1988 when the Hungarian Parliament
approved of the Project, despite al1 the additional material available to it
in the intervening space of 12 years. A further reaffirmation of this Hun-
garian position is to be found in the signing of a Protocol by the Deputy
Chairman of the Hungarian Council of Ministers on 6 February 1989,
reaffirming Hungary's commitment to the 1977 Project. Hungary was in
fact interested in setting back the date of completion from 1995 to 1994.
Ninety-six days after the 1989 Protocol took effect, Le., on 13 May
1989, the Hungarian Government announced the immediate suspension'
for two months of work at the Nagymaros site. It abandoned perform-
ance on 20 July 1989, and thereafter suspended work on al1 parts of the
Project. Forma1 termination of the 1977 Treaty by Hungary took place
in May 1992.
It seems to me that al1 the ingredients of a legally binding estoppel are
here present *'.
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
87 On the application of principles of estoppel in the jurisprudence of this Court and its
predecessor, see Legal Status of Eastern Greenland, P. C.I.J . , Series A/B. No. 53, p. 2 2 ;
Fisheries (United Kingdom v. Norivuy), I.C.J. Reports 1951, p. 116; Temple of Preuh
Vihear, I. C .J . Reports 1962, p. 15 1 . For an analysis of this jurisprudence, see the separate
opinion of Judge Ajibola in Territorial Dispute (Libyan Arab Jamahiriya/Chad), I. C.J.
Reports 1994, pp. 77-83.
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 officia1 policy as different emer-
gent 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 under-
standing the drastic officia1 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 what-
ever 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 officia1 acceptance to full officia1 rejec-
tion. It is on this basis that the legal consequence of estoppel would
follow.
(c) Is It Appropriate to Use the Rules of Inter Partes Litigation to

Determine Erga Omnes Obligations ?
This recapitulation of the facts brings me to the point where 1 believe a

distinction must be made between litigation involving issues inter partes
and litigation which involves issues with an erga omnes connotation.
An important conceptual problem arises when, in such a dispute inter

partes, an issue arises regarding an alleged violation of rights or duties in
relation to the rest of the world. The Court, in the discharge of its tradi-
tional duty of deciding between the parties, makes the decision which is in
accordance with justice and fairness between the parties. The procedure it
follows is largely adversarial. Yet this scarcely does justice to rights and
obligations of an erga omnes character - least of al1 in cases involving
environmental damage of a far-reaching and irreversible nature. 1 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 particu-
larly pointed form.
There has been conduct on the part of Hungary which, in ordinary

1 18 GABC~KOVO-NAGYMAROS PROJECT (SEP.OP. WEERAMANTRY)
inter partes litigation, would prevent it from taking up wholly contradic-

tory positions. But can momentous environmental issues be decided on
the basis of such inter partes conduct? In cases where the erga omnes
issues are of sufficient importance, 1 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.
1 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 8 R .
We have entered a n 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 sur-
facing will cal1 for thought upon this matter. International environmental
law will need to proceed beyond weighing the rights and obligations
of parties within a closed compartment of individual State self-interest,
unrelated to the global concerns of humanity as a whole.
The present case offers an opportunity for such reflection.
Environmental law is one of the most rapidly developing areas of inter-

national law and 1 have thought it fit to make these observations on a few
aspects which have presented themselves for consideration in this case.
88 See, for example, Peter Brett, "Implications of Science for the Law", McGill Luiv
Journal, 1972. Vol. 18, p. 170, at p. 191. For a well-known comment from the perspective
of sociology, see Jacques Ellul, The Technologicul Society, trans. John Wilkinson, 1964,
pp. 251, 291-300.
As this vital branch of law proceeds to develop, it will need al1 the
insights available from the human experience, crossing cultural and
disciplinary boundaries which have traditionally hemmed in the disci-
pline of international law.
(Signed) Christopher Gregory WEERAMANTRY.

SEPARATE OPINION O F J U D G E BEDJAOUI
[Translation]
1. In my view, the majority of the Court has not sufficiently clarified

two questions, Le., the applicable luw and the nature of the 1977 Treaty.
In no way d o 1 disagree with the analysis of the majority of the Court on
these two points which will necessitate just a little finer shading and clari-
fication from me a t a later stage.
2. However on two other questions 1 d o have distinct reservations
about the position taken by the majority. These are first the legal char-
acterizution of Vuriunt C , considered by the majority to be unlawful only
in its final phase, i.t:., the diversion of the Danube, and which 1 personally
consider to be an offence, whose unlawfulness in the final phase has a
retroactive effect u:pon each of the acts - from first to last - in the con-
struction of Variant C. Then there is the comprehensive analysis of
the conduct of the two Parties, that 1 see as constituting intersecting
violations, nurturing and nurtured by each other in turn in a tangle
of causalities hard to unravel, and generating tivo effectivités mutually
acknowledged by the Parties.
However, my reservations with regard to the position of the majority
of the Court on these various points did not prevent me from voting for
the operative part as a whole, since 1 agree with the tenor of the Judg-
ment overall.
3. 1 agree with the majority of the Court on its general approach to the
question of the applicable law. 1 shall refer to only one aspect of this
question that 1 coinsider to be fundamental and that touches upon the
applicability in this case of the conventions and other instruments sub-
sequent to the 197;' Treaty, and concerning the environment and the law
of international watercourses.
4. Hungary asks; the Court to interpret the 1977 Treaty in the light of
the new, more developed and more exacting law of the environment, and
of the law of international watercourses. In support of its argument, it
principally relies upon the Advisory Opinion rendered by the Court in
1971 in the Namibia case (Legal Consequences for States of the Con-
tinued Presence of South Africu in Namibia (South West Africa) not-
withstanding Security Council Resolution 276 (1970), Advisory Opinion,
I.C.J. Reports 1971, p. 16). In that case, the Court stated that a treaty
should be interpreted "within the framework of the entire legal system
prevailing at the time of the interpretation" (ibid., p. 31).
CABC~KCIVO-NAGYMAROS
PROJECT (SEP.OP. BEDJAOUI) 121
5. Taken literally and in isolation, there is n o telling where this state-

ment may lead. The following precautions must be taken:
-- an "evolutionur~yinterpretation" can only apply in the ohservution o f
the general rule of interprrtution laid down in Article 31 of the
Vienna Convention on the Law of Treaties;
- the "de)nitionn of a concept must not be confused with the " 1 ~ ~ 1 "
applicable to that concept;

- the "intrrpretation" of a treaty must not be confused with its "revi-
sion ".
A. T H E "EVOLUTICINARY INTERPRETATION"C A N ONLY BE APPLIEDIF

THE G E N E R AR
LU L EOF INTERPRETAT~ON
I N ARTICLE 31 OF THE VIENNA
CONVENTION ON THE LAWOF TREATIES 1s RESPECTED
(a) Respect for the Principle Pacta Sunt Servanda Unless

Therc 1s Incomputihility izlith a Peremptory Norm Appertuining to
Jus Cogens
6. (i) It may be iiseful first to restate the obvious: pactu sunt servundu.
Inasmuch as the 1997 Treaty is regarded as being in force for the pur-
poses of a judicial interpretation, it is necessarily binding upon the
parties. They are under a n obligation to perform it in good fuith
(Article 26 of the 1969 Vienna Convention).
(ii) Moreover the parties cannot, in principle, evade a traditional inter-
pretation based on Article 31 of the Vienna Convention unless the Treaty
which they concluded in the past has become incompatible with a norm
ofjus cogens. Both Hungary and Slovakia appear to agree that this is not
the case of the 197'7 Treaty.
(b) The lnterpretution of' the Treury Must Comply ivith the Intentions
of' the P<nrtiesE.~pres.sedut the Time of' Its Conclusion
7. (i) The Court's dictum, seized upon by Hungary in order t o justify

its "evolutionury iriterpretation", needs to be put back into its proper
context. Before seti.ling on this dictum, the Court had been at pains, in
the same 197 1 Opiriion and on the same page, to emphasize "the primury
necessity of interpreting a n instrument in accordance with the intentions
of the parties at th,: time of its conclusion" (I.C.J. Reports 1971, p. 31 ;
emphasis added).
(ii) The intentions of the parties are presumed to have been influenced
by tlic lulc in force ut the time the Treuty ivus 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
CABC~KOVO-NAGYMAROS PROJECT (SEP.OP. BEDJAOUI) 122
when the Treaty vvas 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" '.
(iii) Moreover, Hungary espouses this very classical approach by

stating: "the 1977 Treaty must in the jîrst 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 "jixed reference" to contemporary international law a t the time of its
conclusion. The "mobile reference" to the law which will subsequently
have developed can be recommended only in exceptional cases of the sort
we shall be looking at.
9. In the Namibia case, the Court had to interpret a very special situa-
tion. Among the obligations of the Mandatory Power, the treaty institut-
ing 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 d o
so by observing the reality, which shows that this notion of a "sacred
trust ", fashioned ini 1920 in the era of colonization, was not comparable
to the idea people had of it half a century later in the period of successive
decolonizations. The Court thus considered that the matters to be inter-
preted, such as the "sacred trust", "were not static, but were by definition
evolutionary" (I.C.J. Reports 1971, p. 3 1). 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 al1 cases of interpretation. The deJinition of the "sucrrd trust" is evo-
lutionary. It is the luw corresponding to the period when this concept is
' M . K. Yasseen, "L'interprétation des traités d'après la Convention de Vienne sur le

droit des traités", Recireil des cours dc, l'Académie de droit international de Lu Haye.
Vol. 151 (1976), p. 64.
GABCIKOVO-NAGYMAROS PROJECT (SEP.OP. BEDJAOUI) 123
being interpreted which must be applied to the concept. O n the other

hand, the environment remains the environment. It is water, air, earth,
vegetation. etc. As ai basic definition, the environment is not evolutionary.
Its components remain the same. O n the other hand, its "status" may
change, deteriorate o r improve, but this is different from a definition by
its components.
11. 1 would add ithat what evolved in the case of the Mandate was the
ohject of the treaty which created it. This object was the sacred trust. Yet
this object has not evolved at al1 in the GuhEikovo-Nagymaros case. The
point here was to consent to a joint investment and to build a number of
structures. This objf:ct, or objective, remains, even if the actual means of
achieving it may evolve o r become more streamlined.
12. A n interpretation of a treaty which would amount to substituting

a completely different law to the one governing it at the time of its con-
clusion would be a distorted revision. The "interpretation" is not the
same as the "suhsti~ution",for a negotiated and approved text, of a com-
pletely different tertt, which has neither been negotiated nor agreed.
Although there is no need to abandon the "evolutionary interpretation",
which may be usefi~l,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
d o not require a treaty to be interpreted in al1 circumstunces in the con-
text of the entire legal system prevailing at the time of the interpretation,
in other words, in the present case, that the 1977 Treaty should be inter-
preted "in the contt,xt" and in the light of the new contemporary law of
the environment o r of international watercourses. Indeed, it is quite the
opposite that these rules of interpretation prescribe, seeking as they d o to
recommend a n 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 a:; it existed on the conclusion of the treaty and in no
wise incurs evolutionary und indeterminute duties. A State cannot incur
unknown obligations whether for the future o r even the present.
15. In this case, the new law of the environment o r of international

watercourses could have been incorporated into the 1977 Treaty with the
consent of the parties and by means of the 'procelAltra1mechanisms " laid
down in the Treaty. That would be a "revision" of the Treaty accepted
within the limits of that Treaty. Similarly, the new law might have played
a role in the context of a "reinterpretution" of the Treaty but provided it
did so witll tlzc con.sent of the other Party.
GABCIKOVO-NACYMAROS
16. It is true that one cannot be excessively rigid without failing to

allow for the movernent of life. The new law might, in principle, be rele-
vant in two ways: as a n element of the interpretution of the content of the
1977 Treaty and as an element of the nzodijication of that content.
17. The.forrnrr 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 casc., Articles 15, 19, and 20 of the 1977 Treaty are for-
tunately drafted in extremely vague terms (in them, reference is made to
"protection" - without any further qualification - of water, nature o r
fishing). In the abserice 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 generul1ui.v prevailing in each period considered. If this is
the case, should it riot 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 a n "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 t o divert attention from treaty law. International pub-
lic 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 ont0 the stock of Articles 15, 19
and 20 of the 1977 Treaty. And Slovakia, it must be said, was not
opposed to taking f.his law into consideration. However in applying the
so-called principle of the evolutionary interpretation of a treaty in the
present case, the Court should have clarified the issue more and should
have recalled that the general rule governing the interpretation of a treaty
remains that set out in Article 31 of the 1969 Vienna Convention.
19. Concluding this consideration of the issue of the applicable law, let
me say that considr:rable progress has been made over the last 20 o r 30
years in mankind's knowledge of the environment. What has actually
progressed however, al1 that could progress, is on the one hand the
scientific explanation of ecological damage and on the other the technical
means for limiting o r eliminating such damage. The phenomenon of
damage, as such, has existed since the dawn of time, each time that man-
kind 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 questiori to the Parties.
GABC~KCIVO-NAGYMAROS
20. It seems t o nie 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 consti-
tutes 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 terrilorial 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 territoriul treaty:

- because it "maivries" the territories of two States; it creates obliga-
tions between tlne States relating either to the use of a part of the ter-
ritory of each of the two States or to restrictions as to its use. It
creates a sort a~fterritorial "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 Gabeikovo hydro-
electric power plant on Slovak territory is conditioned by the Duna-
kiliti dam on Hungarian territory. And the operation of that plant
in "peak power" mode is subordinate to the creation of the dam
at Nagymaros ton Hungarian territory;
- because it creates a specijïc regional urea beliveen ti.tfo neighbourirzg
countries; it concerns the joint construction and use of major struc-
tures, al1 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 thi!; creates a specijïc regional urea and frontier régime,
undeniably giving the Treaty instituting this space and this régime the
character of a '"territorial treaty";
- lustly hecause it has a dual function, hoth confirming and slightly
modij;ving thefionfier betivern the tivo States; the frontier had already
been determined by other, previous instruments. However the 1977
Treaty concerns the regulation of a river which determines the State
frontier between the two parties as the median line of its main chan-
nel. 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 modifica-
tion of the boundary line once the construction of the system of dams
is completed. For this purpose it announces a limited exchange of ter-
ritory on the basis of a separate treaty. Lastly, the 1977 Treaty thus
affects not only the boundary line, but even its nature, since the fron-
tier is no longer constituted de facto by the actual thalweg.
GABC~KOVO-NAGYMAROS
PROJECT (SEP.OP.BEDJAOUI) 126
23. The Treaty is an instrument to which undeniably Slovakia

succeeded:
- because it is a territorial treaty, the principle in such cases being auto-
matic 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 ithe conclusion of the Treaty; and lastly
- because, on its emergence, Slovakia declared that it was bound by al1
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 formul instrument itself, but its muterial content made up
of "tlw rights and obligations" which Slovakia allegedly derived from this
- according to Hungary - now defunct Treaty.
25. With this coi~volutedstructure 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 recog-
nized 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 intersect-
ing violations of it by the Parties. 1 concur with the reasoning and con-
clusions of the maj~orityof the Court in adjudging and declaring on the
one hand that botlh Hungary and Slovakia violated the Treaty, and on
the other that the 'Treaty remains in force. However, 1 shall shortly go a
little further than the majority of the Court on this question of the
infringements of the Treaty, which 1 hold to be intersecting violation.^,
resulting in effectivités which must be reconciled with the survival of the
Treaty.
27. As for the breaches of the Treaty, 1 entirely share the views of the
majority of the Court in declaring that Hungary was manifestly in breach
of its contractual obligations in suspending then abandoning work and
GABCIKO\~O-NAGYMAROS
later in declaring the Treaty terminated. None of Hungary's attempted

justifications, relating either to the suspension then the abandonment of
work o r to the termination of the Treaty, convince me. 1 have nothing to
add to the analysis of the majority of the Court regarding breaches by
Hungary, Save that the Hungarian act of "termination" was directed
against a treaty creating an objective frontier régime and regulating a ter-
ritorial mace:
n ,
that it concerned the shared resources of a river. and that
it caused damage which was al1 the greater in that it threatened to leave
un finished works and structures ivhiclz hy tl~cirvery naturc were diJfic.ult
to redeploy.
28. As for the breaches of the Treaty by (Czecho)Slovakia, 1 regret to
dissent from the majority of the Court. We al1 recognize that (Czecho)
Slovakia breached the 1977 Treaty, but my view differs as to the extent
and scope of the (Czecho)Slovak breach. The salient question is how to
judge the substitute solution, "Variant C", a solution chosen and applied
by Czechoslovakia. According to the majority of the Court,
"Czechoslovakiia was entitled to proceed, in November 199 1, to

Variant C in so far as it then confined itself to undertaking works
which did not predetermine the final decision to be taken by it. On
the other hand. Czechoslovakia was not entitled to put that Variant
into operation from October 1992." (Para. 88.)
This presentation by the Court then became the subject-matter of the
operative part, subparagraphs 1 B and 1 C.
1 take a different view.
29. Slovakia has no hesitation in acknowledging that Variant C differs
in its physical char;icteristics from the structure which could have been
obtained under the original Project. Variant C in fact created an uutorro-
mous systenl, no longer dependent on Hungary in any way. The idea of a
joint projecr recede:;, with legal consequences for the mode of operation
of the works, for which Slovakia now bears sole responsibility. Slovakia
has, unilaterally, appropriated a joint investment and waters of the Dan-
ube, a shared resource, over a stretch of the river 40 o r so kilometres
long. The Parties' joint operation of research and profit-sharing has been
abandoned.
30. The theory of "upproximute upplicution " o r "clo.se approximution "
relied on by Slovalcia in order to justify the construction and commis-
sioning of Variant (2 is unconvincing. There is n o such theory in interna-
tional law. The "precedents" advanced in favour of this theory are worth-
less. At least because of its dangers, this theory deserved wholehearted
censure, which 1 firid lacking in the Judgment.
31. Were this theory to be accepted, it would be to the detriment of
legul certuinty in relations between States and in particular of the cer-
tainty of treaties and of the integrity q f ' t l ~ eobligutions properly entered
into. The consolidation of this theory would virtually signal the end of
the cardinal principle pactu sunt servundu, since a State which undertakes
a specific obligation is left free to fulfil another, which it would be quite

cunning to present as being very close to the first obligation. The State
would only have to observe that its "approximate applicution" was
allowed since, according to it, the conduct of the other party placed it in
the impossibility of ~erformingits obligations under the treaty and since
it had no other remedy. All breaches of the obligations of the State would
thus run the risk of being presented as an "uppro_uimateapplication".
The danger is al1 the greater in that this theory provides no reliable cri-
terion for measuring the tolerahle degree o f "prosimity " or "upproxima-
tion ". The "distance" - or the "difference" - which a State would be
JJ
authorized to take iri relation to the purpose of a treaty when performing

the obligation remains dangerously undefined and is still left to the sub-
jective evaluation of the State.
But this is not all.
32. What the theory of "approximate application" lacks in order to be
a valid "reinterpreta tion" of the treaty is quite obviously the basic condi-
tion of the consent of the other State. Indeed Slovakia is not wrong in
stating that deviations from treaty norms in the application of the Treaty
may be considered a "reinterpretation" of that Treaty. Yet this species of
"mutation" or "novc~tion"of the obligation in its performance is subject
to the existence of an essential condition which has not been fulfilled
in the present case at all. The "approximate application" may only be
recognized as valid and may only constitute a "reinterpretation" if the
other party to the Treaty has given its consent. The weakness of Slovakia's
case is only too apparent.
Moreover Hungary's position is a most distinctive one since not only
did it not give its consent to the "reinterpretution" of the Treuty, it also
considers that there was neither an original interpretation nor a re-inter-
pretation of the Treaty since for Hungary it ceased to exist even before
the advent of Slovakia.
33. 1 now come to quite another aspect concerning Variant C, one
which fully warrants my adding a nuance to what 1 have already said. It
is no secret that when States undertake negotiations, they often envisage,
in a spirit of cautioii and realism, other solutions should the negotiations
fail. A prudent State always approaches the negotiating table with one or
more substitute soliitions up its sleeve in case of failure. It muy therefore
be said that envisaging u uniluterul substitute solution must necessarily he
part of the customury strategy and tactics of negotiation, sometimes in
order to put more pressure on the negotiating puvtner. "Substitute solu-
tions" are therefore an elementary precaution in any negotiation.
34. The contrary can only be asserted if the State has shown bad faith
and if it has been clemonstrated beyond doubt that it only pretended to
negotiate, whereas its Jirm intention was to sabotage the seeming nego-
tiations in order to impose ut al1 costs u unilateral solution ulready
decided on.
This then raises the problem as to hvhether Czechoslovakiu respected
C A B C I K O ~ ~ O - N A G Y M A R OPROJECT
S (SEP.OP. BEDJAOUI) 129
the principle of gootd fuith. 1 shall not venture to examine this question
since, in my view, both Czechoslovakia and Hungary showed good faith,
whilst each presenting the image of their own anxiety to the other. O n
either side, good fai1.h was eroded by the "drip" effect of anxiety and dis-
trust vis-à-vis the other Party.
35. In any event, in determining the legal validity of Variant C , the

majority of the Court made a distinction between the ucrual construction
of this "substitute solution", held to be lawful, and tlze actuul diversion of
the river, the final phase of Variant C, held to be unlawful. The various
operations which make up Variant C are thus dissected as it were into s o
many slices of' Iegul sulurni.
1 cannot agree with this approach. In my opinion the construction of
Variant C falls into one of the categories of breaches termed "continu-
ing ", "composite" o r "cornple.~",u'epending on their. cliarat.teristics, each
phase o r each element of which is unlawful.
36. The majority of the Court considers that only the diversion of the
river genuinely breaches (Czecho)Slovakia's treaty obligations as well as
customary international law, which prohibits the unilateral appropriation
of a shared resource. Each of the other phases prior to the diversion is
allegedly lawful, on the ground that a sovereign State is entitled to erect
any edifice it wishe:; on its territory, providing it does not prejudice the
rights and interests of another State.
37. However, it iij precisely on this last count that the reasoning is un-
tenable. For the reasoning to be unassailable, it has to be shown that n o
phase of the construction of Variant C, apart from the diversion of the
river, prejudiced H~ingary'srights and interests. This has not been shown
and appears to have been considered self-evident by the Court, after the
fashion of a ost tu la te.
38. It is true that a State is sovereign on its own territory, on which it
may erect any consi.ruction it wishes. However, once that State is bound
by a commitnient, concerning the regulation of a river basin for instance,
it may no longer construct as und ivlzerî it wishes a structure velating to
this river basin, o r which has u link with this basin, o r an effect on it.
Within the scope of the Treaty, this leaves room for nothing else but the
application of this instrument (excepting of course al1 the operations
regarding the administration of this territory). In other words, in its con-
duct the state, sovereign of course but bound by a given treaty obliga-
tion, must necessarily act with such caution and discernment that it need
not fear potentially compromising the performance of its treaty obliga-
tion, a t any time and in relation to any of its operations. In the field
henceforthgoverned by a treaty, the contracting State can n o longer
carry out any operation it wishes, which would be lawful only if it were
totully neutral in relation to the general structure of such a treaty.
39. At this point 1 must recall what 1 said above on the subject of the
territorial nature o r 1977 Treaty, which lays various mutual obligations
on the two contracting States relating either to the use of a part of the
territory of each of the two States, or to restrictions on i f s use. The Treaty
creates a "territorial dependency" of one State in relation to the other.
This being so how can it be asserted that the State is free to act as it
wishes?
40. It is important to ascertain exactly what Variant C is. Para-
graph 66 of the Judgment gives a detailed description of it and the Work-
ing Group of Independent Experts presents it in the following terms:
"Variant C consists of a complex of structures, located in Czecho-
Slovakia . . . The structures include . . .:
(2) By-pass weir controlling the flow into the river Danube.
(3) Dam closiing the Danubian river bed.

(4) Floodplairi weir (weir in the inundation).
(5) Intake structure for the Mosoni Danube.
(6) Intake structure in the power canal.
(7) Earth barragesidykes connecting structures.
(8) Ship lock for smaller ships . . .
(9) Spillway weir.
(10) Hydropower station." (Memorial of Slovakia, Vol. II,
Ann. 12.)
This description of Variant C shows to what extent the planned struc-
tures are numerous, "heavy ", and not ut al1 neutral, and interfere with the
initial Project, or to be more specific change its nature.
41. In these slices of "legal salami" which supposedly constitute Vari-
ant C, the first phase itself cannot be considered as being i~rrrrlaterialto
the 1977 Treaty. (('zecho)Slovakia's first act, the construction of the
Cunovo dam, occurred in a river basin which was indeed on Czechoslo-
vak territory but this had immediate repercussions on the apportionment
of water belonging to both States, since the river was enlarged at that
point into a large reservoir two-thirds the size of the Dunakiliti reservoir.
This first operation .was not the kind of neutral measure that might freely
be taken by a State which was moreover bound by a commitment relating
to a certain way of regulating the river. On the contrary, it creates a situa-
tion having a direct, immediate bearing on the provisions of the 1977
Treaty, which provi:jions it substantially alters. Nowhere does"the Treaty
in question formally forbid Czechoslovakia to erect a dam at Cunovo, on
its own territory. However, in deciding that the dam was to be located at
Dunakiliti, the Treaty undeniably imposeson Czechoslovakia an "obligu-
tion to a b s t a i ~ "fronn erecting this dam at Cunovo. In short, even the first
operation at Cunovo could not be left to Czechoslovakia's sole, sovereign
initiative. Did net-the first "diversion" of the waters of the Danube in
fact take place at Cunovo when the river, dammed at that point, broad-
ened into a vast "re:servoirV- so to speak - to the detriment of Hun-
gary?
42. On a totally different plane, 1 cannot conceive how an action by
the State, forming a link in a chain, should not take on an unlawful hue
when completed by a final link, itself acknowledged to be unlawful, since,
once the Danube had been diverted, this unlawful act was "retroactively"
to serve as a "chernical indicator" casting an unlawful hue on al1 the
operations composing Variant C. However, in persisting in setting the
construction work, :said t o be definitively lawful, against the diversion of
the river, apparently not unlawful, the majority of the Court does not a t
al1 recognize the unlawfulness of Variant C as a whole.
43. That, for the majority of the Court, is a way of denying the exist-
ence of the "continiling", "composite" or "complex wrong". It seems to
me that al1 the effort expended in the literature and in the case-law are
compromised by this stand, as is the attempt a t codification by the Inter-
national Law Co~~imission. The unlawful nature of the "continuing
wrong" is indeed determined once the last piece of the jigsaw is in place.
Yet in the literature and in the case-law the declaration of the unlawful-
ness of the final link results, in most categories of wrongs, in the unlaw-
fulness of the entire chain. It therefore seems wrong to me to set the
allegedly lawful con~structionof Variant C against its allegedly unlawful
final commissioning.
44. The Judgmen.t of the Court refers to the proceedings of the Inter-
national Law Comrnission on State Responsibility. However, one of the
paragraphs in the commentaries of the Commission to which the Court
specially refers reads :
"unlike wrongful acts of national law, the internationally wrongful
act of a State is quite often - and probably in most cases - the
result of a concatenation of a number of individual actions or omis-
sions which, however legally distinct in terms of municipal law, con-
stitutes one compact ivhole so to speak from the point of v i e , ~of
internutional lu'iu" ( Yearbook of the Internaiional Law Commission,
1993, Vol. I I , Part 2, p. 57, para. 14; emphasis added).
45. Moreover it is not so much Article 41 of the Draft Articles of the

International Law Commission on State Responsibility, cited in the
Judgment of the Court, which is relevant here, but rather Article 25. Its
title ("moment and duraiion of the breach of an international obligation
by an act of the State extending in time") is in itself significant for the
present case. It clearly States:
"1. The breach of an international obligation by an act of the
State having a continuing character occurs ut the moment when that
act begins . . .
2. The breac:h of an international obligation by an act of a State,
composed of a series of actions or omissions in respect of separate
cases, occurs at the moment when that action or omission of the series
is accomplished which establishes the existence of the composite act . . .
GABCIKOVO-NAGYMAROS PROJECT (SEP.OP.BEDJAOUI) 132
3. The breach of an international obligation by a complex act of

the State consisting of a succession of actions or omissions . . .
occurs at the moment when the last constituent element of that com-
plex act is accomplished . . ." (Emphasis added.)
In addition, however, and in al1 cases, the International Law Commis-

sion stated, with regard to each of these scenarios (continuing, composite
o r complex act), that "Nevertheless, the time of commission of the breach
extends over the eritire period." In other words, however Variant C is
classified among the above three types of wrong, the unlawfulness of the
final phase, the diversion of the river, extends to al1 the operations which
preceded it, even supposing it not to be a continuing offence unlawful
from the outset.
46. Indeed, the iinlawful nature of Variant C, from the commence-

ment of its construction to the diversion of the river, can only be indivis-
ible, in view of the very nature of this "substitute solution". As the Judg-
ment of the Court puts it so appositely, "the main structures of the
System of Locks . . . will take the form of a co-ordinated single unit"
(para. 144) o r a "single and indivisible operational system of works"
(para. 77). Similarly, Variant C, which replaced this system, is not made
up of a series of unrelated operations. They depend on each other, com-
bining to produce the final result. The "integrated" nature of these opera-
tions results from t.he fact that none of them can stand alone, nor have
any meaning in itself. None of them is neutral and is meaningful only
when related to the final result. What would be the purpose of the con-
struction of the darn closing the bed of the Danube unless to divert the
river? For a sovereign State, which is entitled to construct whatever it
wants on its own territory, building such a dam, in isolation and on its
own, would be pointless and without interest for that State, which would
not embark upon such a venture at all. The point and interest become
evident only when the operation in question is related to the final diver-
sion of the river. The very nature of the bypass canal built in the context
of Variant C was q ~ i i t eobviously to divert the waters of the main channel
to the GabEikovo power plant. Such a construction could be neither
innocent nor neutral; it bore the stamp of the end purpose of Variant C ,
which was the diversion of the waters of the river. In short, it is not pos-
sible to separcite the construcrion on the one hand and the diversion on the
other.
47. It is true that any internationally unlawful act initially begins with
'preparations". 1 agree with the majority of the Court in considering that
such preparations .~trictosensu are not unlawful. Even the extremely
advanced preparation of a "substitute solution" as leverage on negotia-
tions with the partner is not in itself in any way unlawful. However, once
the order to construct was given and once construction began, in Novem-
ber 1991, we leave the field of preparations for that of construction. At
that time, November 1991, Czechoslovakia was fully aware that Hungary
had no intention of performing the 1977 Treaty, and had then taken the
decision to divert the waters of the river. The chain of operations designed
to achieve this aim was unbroken, with n o missing links, from the com-
mencement of construction to the commissioning of Variant C by the
actual diversion of the waters in October 1992. Nevertheless the majority
of the Court held tl-iat the work concerned might "have been abandoned
[by Czechoslovakia] if an agreement had been reached between the
parties" (para. 79). 1 d o not think one can engage in speculation of this
sort with impunity. When construction began in November 1991 and
throughout this phalse of the works, it was clearly apparent, particularly
from the diplomatic: exchanges between the Parties, that each Party had
adopted a n entrenched position. That being so, the idea mooted by the
Court of an abandonment of the works could be only hypothetical and
unrealistic.
48. Thus paragraph 1 of the operative part of the Judgment is drafted

in such a way that the Court States on the one hand that Czechoslovakia
acted legally in proceeding to Variant C in November 1991 (subpara. A),
but on the other that it was not entitled to put it into operation in Octo-
ber 1992 (subpara. B). 1 a m somewhat bemused, 1 must admit, by this
twofold affirmation. It is as if 1 were allowed to buy fruit from the mar-
ket, but prevented from eating it. It is as if the housewife had cooked a
meal but were forbidden to eat it. It is as if a State were free to purchase
weapons or have tht:m manufactured, but were not permitted to use them
if attacked. Paragraph 1 of the operative part thus reflects, in a nutshell,
a n analysis which ends in stalemate.
In the final analy:;is, the decision of the Court concerning Variant C is,
in my view, neither correct in legal terms, nor good in practical terms,
nor actually useful. It has no value, neither in law nor in fact, nor for
future bipartite negotiations.
49. S o with the construction of Variant C, international waters belong-
ing to two States and flowing in the bed of a frontier river suddenly, over
a distance of 40 kilometres from Cunovo to Sap, become exclusively
national, Slovak waters. A bilateral project, under construction on the
territory of both States as a result of a joint investment, suddenly becomes
a unilateral, purely national project. Whose fault is this? Certainly and
primarily the fault of Hungary. For the time being however this aspect
does not concern me. What does deserve consideration here is a substan-
tial physical reality: over a distance of 40 kilometres, waters hitherto
shared become purely national waters and a bilateral project suddenly
undergoes profouncl modifications, fundamentally altering it into a purely
national project.
50. It is clear that (Czecho)Slovakia, in so doing, applied something
quite different from the 1977 Treaty. Either Variant C constitutes the
application of the Treaty o r it does not. In my view there can be n o inter-
mediate situation. l'here is no place, in law,for a n "approximate" appli-
cation of the Treat:y. There are only two categories of conduct in inter-
GABC~KCIVO-NAGYMAROS
national law: lawful and unlawful. It does not recognize any intermediate
situation. Such a situation may exist but is and will be nothing more than
a fact. In relation to the Treaty. this fact may be considered only as a
non-application of the Treaty, being unlawful in nature.
51. 1 have therefore reached the conclusion that Variant C as a whole

is unlawful. Can it however be regarded as a countermeasure? 1 d o not
think so, and 1 coni-ur with the majority of the Court on this point. 1 a m
however tempted to qualify this. It is impossible to regard (Czecho)Slo-
vakia's conduct ivirlz utter certuirztp as no more than a reaction to Hun-
gary's unlawful acts. Another perhaps slightly more realistic view might
discern in Czechoslovakia's conduct both a premeditation and a rcsponse,
creating a situation which is more complex than a countermeasure. A
prerneditution to hégin bi~ith.Without accepting the Hungarian view that
since 1920 Czechoslovakia had always dreamt of constructing al1 the
works within Slovak territory, 1 note that Czechoslovakia drew up dif-
ferent variants early in 1989, including Variant C, as a "substitute solu-
tion". Then u responsr. There is no doubt that Slovakia is well served by
the chronology of' events. The suspension of work by Hungary on
13 May 1989 follov~edby the definitive abandonment of work and finally
by its decision to terminate the Treaty on 19 May 1992 are the mechanics
of the final impleimentation of Variant C on 23 October 1992 as a
countermeasure to the Hungarian conduct.
52. In any event., and here 1 concur with the majority of the Court,
Variant C is not a countermeasure capable of excusing its unlawfulness.
Nor indeed is it proportionate, since from the outset it deprives Hungary
of the waters of the: Danube as a shared resource and also of any control
over a joint investcnent laid down in the 1977 Treaty. Moreover Variant
C is neither provisional nor deterrent, as a countermeasure should be. It
constitutes a definitive, irreversible breach of the 1977 Treaty.
53. Both parties, Hungary just as much as Slovakia, have therefore

breached the 1977 Treaty. The situation created by the parties is charac-
terized by intersecting violations countering each other. However it is not
easy to pinpoint the links between cause and effect in each case with cer-
tainty. The acts and conduct of the parties sometimes intercut. The chro-
nology of events a!ppears to answer the question as to which of the two
parties triggered the cycle of these intersecting violations. Naturally this
chronology must be taken into account; however it must be borne in
mind that it is just like the tip of an iceberg, something only to be relied
upon with caution. Alas, deep mutual distrust has characterized relations
between the partie:; for many years.
In holding the wrongs committed by both Parties to be "intersecting
violutions" the Court could have seized this opportunity to describe a
reality more complex than it appears, one within which the links between
cause and effect intercut. In so doing, it might perhaps have been justified
in suggesting that i'he Parties renegotiute their Treaty on the husis of a
"zero option" under cvhich each Party kvaived its right to compensation
Jiom the otlzer. Thlr Parties might then have redefined their treaty rela-
tions more readily within the framework of the renewed 1977 Treaty.
54. On the ground, these intersecting violutions gave sise to a reality

which the majority of the Court did not deem it appropriate to charac-
terize. For my part, it seems necessary and important to note that these
intersecting violati~onscreated tivo effectivités which will continue to
mark the landscape of the region in question.
55. The jurist is not fond of qffectivités. They violate his taste for the
legal ordering of things. On the other hand, he is aware that the realities
of life are complex and that a substantial portion of these realities inevi-
tably escapes the rule of law. So he is sometimes realistic enough to take
account of some of these situations - when they persist - and to regard
these effeectiiifbs a:; an "action of the fact" against the legal title. This
attitude is not only dictated by realism but is nourished by the desire to
reincorporate these effectivités into the legal processes.
56. (Czecho)Slovakia implemented Variant C. The construction of the

GabCikovo system laid down in the Treaty was thus effected by the sub-
stitution of Cunovo for Dunakiliti, with its technical and physical conse-
quences. This Variant C is illegal but it exists. Slovakia places al1 the
greater reliance on its effectivitb because it "approximates" to the law. It
was certainly keen to assert its readiness to destroy this effecriviré. But it
seems clear that ariy questioning of Variant C, by destruction o r in any
other way, would be contrary to sound economics and ecology, and
would ultimately be absurd and unacceptable to Slovakia. This is the
inescapable reality the Court has no option but to deal with in the effort
to reconcile it with the law which it is its task to state.
57. The Slovak cflectivitt; has a twofold singularity.
Firstly, until recently it was what Charles De Visscher calls an "effec-
tivitk in actionu2 and became consolidated when the case was "sub
judice". GabCikovo was to be constructed in two phases. The former
phase was to be completed on 23 October 1992, the date of the diversion
of the river. The second phase is now almost complete; it was constructed
* Charles De Visscher, Th6orir.s ct rc;alité.~rn droif intrrnational public, 4th ed., 1970,
p. 319.
132
while the case was before the Court. Today it is a n almost complete
structural effectivitc;.
The second singularity of the Slovak eJlfectivitc5is that it draws its
strength,from thcJ;lcts but also, in part, from the latt,.This is a striking
characteristic of this ejJectivité, which is constructed, like any ejTec-
tivité, ugainsr the law (in this case treaty law), but which is nevertheless
reinforced by a partial application of the Treaty, enabling Slovakia
to contend that its Variant C was nothing more than an "approximate
application" of the Treaty.
In fact :
(i) the dam and hydroelectric power plant at Gabtikovo, now con-
structed, were provided for in the Treaty;
(ii) the diversion of the Danube was provided for in the Treaty (the
major difference being that the river was closed at Cunovo instead
of Dunakiliti): and
(iii) the Danube still flows along its original bed (with the twofold dif-
ference that it has been closed at Cunovo and above al1 that Slova-
kia releases a n insufficient volume of water daily into the Danube, a
situation which Slovakia considers might be improved).
58. As for Hungary, it has abandoned work on al1 fronts and has
decided not to buil'd the Nagymaros dam. The nature of the Hungarian
<ffectivités is rather curious.
Firstly, a n eflectivifé may express a certain order established by the
act. This is not the case here. The Hungarian effectivités express, quite
the contrary, a kind of "disorder" arising from the abandonment of the
works. They are exf'ectivités not "in action" but in a state of prolonged
"malformation".
As for the Nagynnaros site, it presents a picture of a kind of "negative"
elfectivité through the abandonment of the construction of the dam. This
means that the "negative" efictivité of Nagymaros has created a defini-
tive situation, for Hungary's will appears irrevocable.
The other Hunp;arian efictivités have generated a state of affairs
unsatisfactory for all. This situation is waiting to be taken in hand o r
"recycled" by another law, whether treaty law (a renegotiated 1977
Treaty), o r domestic law (a Hungarian decision to destroy o r redeploy
the uncompleted sh.ells).
59. Both the Slovak and Hungarian effectivités share the characteristic
of enjoying a significant degree of mutual recognition by the Parties. Despite
the difficulties there are in grasping al1 the nuances of the Hungarian posi-
tion from one writttzn pleading to another and from one oral argument to
another, 1 think that Hungary is not calling for the dismantling of Variant C.
As for Slovakia, it seems on the one hand to be seeking to adjust to the
fact that the Nagymiaros dam does not exist by, among other things, modi-
fying the way Gabëikovo operates and on the other hand avoiding calling
for the completion of the "large reservoir" a t Dunakiliti, which is very
costly and heavily polluting, but above al1 duplicates the Cunovo reservoir.
GABC~KCI~O-NAGYMAROS
These were valuable pointers for the Court, "signals" one might Say in
the attempt to find i~ppropriatesolutions, heuring in mind the law and the
facts.
60. Whut is the kiiv? What are the facts? First, the facts. They are con-
stituted by the reality on the ground, which 1 have just analysed as ef;fc-
tivités. Second, the law. The law is constituted by the 1977 Treaty and its
related instruments, which the intersecting violations of both parties have
been powerless to terminate. Consequently, there is no point in conceal-
ing the extremely delicate nature of the task conferred upon the Court in
this case where the facts clash head on with the law. which ourrht." , how-
ever, to have the firial Say. The situation may be analysed as follows: on
the one hand the 1977 Treaty has largely been stripped of its materiul
content, but remains a jbrmul instrument, a receptacle or shell ready to
accommodate new commitments bv the Parties: on the other hand. in
parallel, ej;fi?ctivitéshave come into being which are mutually recognized
bv the Parties. So iit was for the Court to declare that both Parties were
under an obligation to negotiate in good faith a new content to their
Treaty, taking account of what remained of the Treaty and also the ejfec-
tivitbs on the ground. However it was important to emphasize above al1
that in taking thest: efictivités into account the Court clearly had no
intention whatsoever of legitimizing the unluivful fucts estuhlished. All it
had to do, in a spirit of legal realism, was to take note (together with the
Parties themselves to some extent) of the effects resulting from a wholly
singular succession of intersecting violations, each of which remained
reprehensihle as suc,h.
61. In order to d o so, we must first examine the consideration given to
the maintenance in force of the 1977 Treaty and its significance, then the
consideration of the effectivités and its significance, before attempting to
make these two eleiments "CO-exist" within the framework of a renewed
treatv.
62. The maintenance in force of the Treaty does not mean the enforced
performance of the obligations it imposed on Hungary, obligations
which to date had not been fulfilled. It is neither necessary nor justified
to infer al1 the logiical consequences from the maintenance in force of
the Treaty. There is no question of obliging Hungary to construct the
Nagymaros dam, to complete the works at Dunakiliti, t? put the diver-
sion dam at Dunakiliti into operation and to flood the Cunovo installa-
tions, nor to compbete, upstream of Gabëikovo, that part of the work it
was to carry out under the Treaty, provided Slovakia had not already
done so.
At the same time, however, any idea of legitimizing the abandonment
by Hungary of its treaty obligations must be totally excluded. Whilst
accepting the effectivités as inescapable acts, their nature as internation-
ally unlawful acts inust nonetheless be noted, acts for which Hungary
GABC~KOVO-NAGYMAROSPROJECT (SEP.OP. BEDJAOUI) 138
must answer by assuming its responsibility. The same holds true for the
consideration of the Slovak ejjectivités, whose unlawful nature has also
not been eradicated.
63. The survival of the Treaty in the face of al1 the violations shows
well enough that tl-iere is n o question of legalizing the infringements of
the principle pacto sunt servunda. Although it is prudently realistic
to take account of the ejfectivités and not to "run headlong into" an
inescapable reality, it seems even more essential, especially for a world
judicial organ concerned to ensure that international law is respected,
to show urbi et orbi that treaties are not "scrups of paper" and that they
cannot be destroyetl by violating them. Save by mutual consent, States
cannot and may noi. rid themselves of their treaty obligations so easily. It
is vital to reinforce the legal certainty of international commitments.
64. The survival of the Treuty ulso mukes it possible to sulvuge its
Articles 15, 19 und 20, relating respectively to the protection of water
quality, the protection of nature and fishing interests. They are of course
extremely general, unsatisfactory articles. However they concern essential
matters which lie at the root of the current dispute between the two
States. It will therefore be for the two States to settle these vital matters
of the environmerit, water quality and fishing, by negotiation. In
Articles 15, 19 and 20 they will find the basis for that renegotiation.
65. L u s t h , the survival of the Treuty provides a context, and even more
a specijïc jirumeivor/r, for the ivishes of' the t ~ States
o in negotiution. It is
not only Articles 15, 19 and 20 which the survival of the Treaty will sal-
vage. More than that, the 1977 Treaty will make it possible to conserve
the gencrul plzilo.sq~h~~ und the major principles which have inspired this
association betweeni two States with a view to a joint investment, from
which they could t:xpect mutual benefits. The Treaty will serve as a
framework, and the wishes of the two States will thus be channelled in
order to avoid undesirable excesses, or, conversely, any reluctance, by
either Party. The Treaty which survives already contains a number of
accepted guidelines and useful principles to point the way for future
negotiation. In particular, apart from Articles 15, 19 and 20, the follow-
ing points need to be further developed and adjusted, but in principle are
already accepted. These are:
( u ) "the developrrient of water resources, energy, transport, agriculture

and other sectors of the national economy of the Contracting
Parties" (Preamble to the Treaty);
( 6 ) "improved old hed of the Dunuhe . . . " (Art. 1, para. 2 ( e ) ) ;
(c) "deepened and reguluted bed of the Danube" (Art. 1 para. 2 ( f ) ) ;
fd) 'tpood-control works" (Art. 1 , para. 3 ( a ) , and Art. 13);

GABCIKOVO-NAGYMAROS
(e) "deepened ana' regulated bed of the Danube, in both its branches. . . "
(Art. 1, para. 3 ( c ) ) ;
( f ) the principles which have presided over the distinction betwleen joint
investment und national investment (Art. 2);
( g ) the "re.spon.si/~ility,for the costs of the joint investment" (Art. 5),
which will enable the future negotiators t o assess the costs and to
calculate how much of these costs each Party has already paid and
for how muci-i it still remains reswonsible:
( h ) the determination of the joint and separate owvzership of each State
with respect t(3 each of the structures already built (Article 8 of the
Treaty). The lbypass canal constructed by Czechoslovakia alone is
regarded as joint property by Article 8 ( b ) , which is normal in this
system of joint investment and operation, but Hungary, which must
legitimately accede to this joint property, will have to pay its part of
the construction of that canal;
(i) the method for the joint operation of the works (Arts. 9 and 10) and
the principle of participation "in the use und in the benejts of the
system . . . in equal measure" (Art. 9 , para. 1);
( j ) the ~lithdraivalofwater from the Danube and the rules and guaran-
tees which apply to the Parties;
( k ) the protection ofivater quality (Art. 15, cited above), the maintenance
of the hed of tlhe Danube (Art. 16); the rules for nuvigation (Art. 18);
the protection of the environment (Arts. 19 and 20, cited above);
(1) the determination of the State houndary line between the two
Parties (Art. ;!2); and lastly
( m ) joint liability und .sc.parate liability in the event of damage (Arts. 25
and 26).
So much for the survival of the 1977 Treaty and its significance. Let us
now examine the consideration of the effectivités and then its signifi-
cance.
66. The signiJîcuizce to be attached to taking account of the effectivités
must be indicated, which is a way of highlighting the conditions placed
upon their ultima1.e harmonization with the law. In the traditional
scenarios, the State invokes an effectiilité ugainst a title, in other words
against the luiv itself. In this case on the other hand, taking account of
the effectivités is not tantamount to a negation of the title. The title does
not disappear; it merely adapts and does so, moreover, through involving
the responsibility of the authors of these effectivités, who will be liable
for al1 the necessary compensation. The law, trampled by the effectivités,
is thus "avenged" by the price paid by the Parties in the form of com-
pensation for the elfectivités created. It is on this condition, in particular,
that CO-existencewiill develop between these effectivités which have been
"paid for" and the law which has been "avenged".
67. With this in mind, we shall first see how the Parties could adapt
these effectivités in their negotiations to incorporate them into the new
GABCIKCIVO-NAGYMAROS PROJECT (SEP. OP. BEDJAOUI) 140
Treaty. The starting point to be borne in mind is that these qfectivités

are recognized by both Parties.
For its part, Hungary only requests the dismantling of Variant C,
which it knows is unlikely, if the new agreement to be concluded prevents
it from benefiting firom this variant.
Slovakia has on'ly requested that Hungary be obliged to build the
Nagymaros dam if the two Parties cannot manage to modify the Treaty
by an agreement taking account of the fact that the dam has not been
built. According to its written pleadings and oral arguments, Slovakia
does indeed appear to accept the uutonomous operation of the Gabtikovo
hydroelectric plant. in other words its operation independently of the
Nagymaros dam. And instead of the peak-mode operation of Gabtikovo,
which was only possible with a dam at Nagymaros, it agrees to the run-
of-the-river operation of Gabtikovo, thus appearing to be resigned to this
situation, which, moreover, is only too evident to the observer.
Lastly, Hungary and Slovakia d o apparently fully accept the closure at
~ u n o v oand the abandonment of Dunakiliti respectively.
68. While these crffpctivités, adapted as they have been o r will be to fit
the mould of a new treaty, may have breached and exceeded the existing
law, the law reins them in and governs them again in three ways:
- these effectivités d o not kill the Treaty, which survives them;

- these qflèctivité.~d o not go unpunished and entail sanctions and com-
pensation ;
- and above all, these eff'ectivités will be "recast", o r inserted into the
Treaty, whose new content to be negotiated will serve as a Iegifi-
mizing te.ut for them.
69. This brings rne to the necessity for the Parties to negotiate again
und to do so in goo~l,fuith.The renegotiation must be seen as a strict obli-
gation, exactly like: the good faith conduct it implies. This obligation
flows not only frorri the Treaty itself, but also from general international
law as it has developed in the fields of international watercourses and the
environmen t.
70. In this conte:ut of a reconstituted negotiation, the Parties will have
to find, unless they agree otherwise, the appropriate solutions for a
number of questions and, in particular, but not exclusively, the following
ones :
the necessity to wipe the slate of the past clean and for each to pay
the price for their wrongful conduct and their cffectivité; the "zero
option ", moreover, would not be incompatible with this necessity;
the necessity to reconstitute o r remodel the material content of the
Treaty by achieving a "conzprehensive hulunce" between them, in
their rights and obligations;
lastly, the necessity to rectify the operation of certain elements in
order to avoid ~icologicaldangers and harm.
GABCIKCIVO-NAGYMAROS
71. In the search for new "comprehensive balances" in the Treaty,

unless they agree otherwise, the Parties will have to negotiate the condi-
tions for restoring Hungary to its status as a partner in the use of' the
water, restoring its rights over the water downstream of Cunovo as far as
Sap downstream of the confluence between the canal and the original
course of the river, involving that country, with equal responsibilities, in
the operation and rnanagement of Variant C, which thus passes from the
status of an effectii~ité t o that of a novation jointly agreed in the context
of a renovated treaty; and lastly enabling Hungary to enjoy, on an equal
footing, the benefits achieved by the implementation of this "provisional
solution" (Variant (2)which, in the renewed Treaty, has become a "defini-
tive and irreversible solution".
Lastly, unless they agree otherwise, the Parties will also have to nego-
tiate the conditions for restoring Hungary to its status as CO-ownerof the
works supposed to have been built jointly, given that the Parties will have
to reconsider the matter of co-ownership, taking due account of the
amounts paid by ea.ch of them as part of the joint investment, of the com-
pensation paid and weighing up these and any other elements which each
of them considers relevant.
(Signed) Mohammed BEDJAOUI

SEPARATE OPINION O F J U D G E KOROMA
1 have voted in favour of most of the operative part of the Judgment,

principally because 1 concur with the Court's finding, in response to the
questions submitted to it in the Special Agreement, that Hungary was not
entitled to suspend and subsequently to abandon in 1989 the works on
the Nagymaros Project and on the part of the Gabtikovo Project on the
Danube river for which it was responsible under the 1977 Treaty, that the
Treaty continues to be in force and consequently governs the relationship
between the Parties.
In making such a finding the Court not only reached the right decision
in my view, but reached a decision which is in accordance with the 1977
Treaty, and is consistent with the jurisprudence of the Court as well as
the general principles of international law. Foremost among these prin-
ciples is that of puctu sunt servundu which forms an integral part of inter-
national law. Any finding to the contrary would have been tantamount to
denying respect for obligations arising from treaties, and would also have
undermined one of the fundamental principles and objectives of the
United Nations Charter calling upon States "to establish conditions
under which justice and respect for the obligations arising from treaties
. . . can be maintained", and "to achieve international co-operation in
solving problems of an economic, social . . . character".
When Czechoslovakia (later Slovakia) and Hungary agreed by means
of the 1977 Treaty to construct the GabCikovo-Nagymaros barrage sys-
tem of locks on the Bratislava-Budapest sector of the river for the devel-
opment and broad utilization of its water resources, particularly for the
production of energy, and for purposes connected with transport, agri-
culture and other sectors of the national economy, this could be seen as a
practical realization of such objectives, since the Danube has always
played a vital part in the commercial and economic life of its riparian
States, underlined and reinforced by their interdependence.
Prior to the adoption of the Treaty and the commencement of the

Project itself, both Czechoslovakia and Hungary had recognized that
whatever measures were taken to modify the flow of the river, such as
those contemplated by the Project, they would have environmental effects,
some adverse. Experience had shown that activities carried on upstream
tended to produce effects downstream, thus making international co-op-
eration al1 the more essential. With a view to preventing, avoiding and
mitigating such impacts, extensive studies on the environment were under-
taken 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 GAB~~KOVO-NAGYMAROS
PROJECT (SEP.OP.KOROMA)
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 viola-
tion not only of the Treaty itself but of the principle of pactu sunt ser-
vandu.
Hungary invoked the principle of necessity as a legal justification for
its termination of the Treaty. It stated, inter cllia, that the construction of
the Project would have significantly changed that historic part of the
Danube with which the Project was concerned ; that as a result of opera-
tion in peak mode and the resulting changes in water level. the flora and
fauna on the banks of the river would have been damaged and water
quality impaired. It was also Hungary's contention that the completion
of the Project would have had a number of other adverse effects, in that
the living conditions for the biota of the banks would have been drasti-
cally 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 a t Cunovo and the effect this would have on the water quality
offered a different view. The Report was commissioned by the European
Communities with the co-operation of, first, the Government of the
Czech and Slovak Federal Republic and, later, the Slovak Republic. It
was described as presenting a reliable integrated modelling system for
analysing the environmental impact of alternative management régimes
in the Danubian lowland area and for predicting changes in water quality
as well as conditions in the river, the reservoir, the soil and agriculture.
As to the effects of the construction of the dam on the ecology of

the area, the Report reached the conclusion that whether the post-dam
scenarios represented an improvement or otherwise would depend on the
ecological objectives in the area, as most fundamental changes in eco-
systems depended on the discharge system and occurred slowly over
many years or decades, and, no matter what effects might have been felt
in the ecosystem thus far, they could not be considered as irreversible.
With regard t o water quality, the Report stated that groundwater

quality in many places changed slowly over a number of years. With this
in mind, comprzhensive modelling, some of which entailed modelling
impacts for periods of up to 100 years, was undertaken and the conclu-
144 GABCIKOVO-NAGYMAROS PROJECT (SEP.OP. KOROMA)
sion reached that no problems were predicted in relation to groundwater

quality.
The Court in its Judgment, quite rightly in my view, acknowledges
Hungary's genuine concerns about the effect of the Project on its natural
environment. However, after careful consideration of the conflicting evi-
dence, 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 ter-
mination 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 scrvanda.
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 argu-
ment that obligations assumed under a validly concluded treaty can no
longer be observed because they have proved inconvenient or as a result
of the emergence of a new wave of legal norms, irrespective of their legal
character or quality. Accordingly, not for the first time and in spite of
numerous breaches over the years, the Court has in this case upheld and
reaffirmed the principle that every treaty in force is binding upon the
parties and must be performed in good faith (Article 26 of the Vienna
Convention on the Law of Treaties).
Nor can this finding of the Court be regarded as a mechanical applica-

tion of the principle of pucta sunt servanda or the invocation of the
maxim sumrnun jus sumrna injuria but it ought rather to be seen as a re-
affirmation of the principle that a validly concluded treaty can be sus-
pended or terminated only with the consent of al1 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 GABC~KOVO-NAGYMAROS PROJECT (SEP.OP. KOROMA)
1 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, 1 cannot concur with the Court's finding
that Czechoslovakia was not entitled to put Variant C into operation
from October 1902. The Court reached this latter conclusion after hold-
ing that Hungary's suspension and abandonment of the works for which
it was responsible under the 1977 Treaty was unlawful, and after acknow-
ledging the serious problems with which Czechoslovakia was confronted
as a result of Hungary's decision to abandon the greater part of the con-
struction 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 Gabtikovo was al1 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. ThCr Court also recognized that not using the system would
not only have led to considerable financial losses of some $2.5 billion but
would have resulted in serious consequences for the natural environment.
It is against th:is background that the Court also reaffirmed the prin-
ciple of international law that, subject to the appropriate limitations, a
State party to a treaty, when confronted with a refusal by the other party
to perform its pa1.t of an agreed project, is free to act on its own territory
and within its ovin jurisdiction so as to realize the original object and
purpose of the treaty, thereby limiting for itself the damage sustained
and, ultimately, the compensatory damages to be paid by the other party.
As the Judgmeint recalled, Article 1 of the 1977 Treaty stipulated that

the Gabtikovo-Nagymaros Project was to comprise a "joint investment"
and to constitute ii "single and operational system of locks", consisting of
two sections, Gabtikovo and Nagymaros. According to Article 5 , para-
graph 5, of the Treaty, each of the contracting parties had specific
responsibilities regarding the construction and operation of the System of
Locks. Czechoslovakia was to be responsible for, inter alia:
"(1) the Dunakiliti-HruSov head-water installations on the left

bank, iri Czechoslovak territory;
(2) the head-water canal of the by-pass canal, in Czechoslovak
territory;
(3) the Gabëikovo series of locks, in Czechoslovak territory;
(4) the flood-control works of the Nagymaros head-water instal-
lations, in Czechoslovak territory, with the exception of the
lower Ipel district ;
(5) restoration of vegetation in Czechoslovak territory."
Hungary was to be responsible for, inter uliu:
"(1) the Dunakiliti-HruSov head-water installations on the right
bank, in Czechoslovak territory, including the connecting weir
and the diversionary weir;
(2) the Dunakiliti-HruSov head-water installations on the right
bank, in Hungarian territory;
(3) the Dunakiliti dam, in Hungarian territory;
(4) the tail-water canal of the by-pass canal, in Czechoslovak ter-
ritory;
(5) deepening of the bed of the Danube below PalkoviEovo, in
Hungarian and Czechoslovak territory ;
(6) improvement of the old bed of the Danube, in Hungarian and
Czechoslovak territory ;
(7) operational equipment of the GabEikovo system of locks (trans-
port equipment, maintenance machinery), in Czechoslovak ter-
ritory;
lations in the lower Ipel district, in Czechoslovak territory;

lations, in Hungarian territory;
(10) the Nagymaros series of locks, in Hungarian territory;
(1 1) deepening of the tail-water bed below the Nagymaros system
of locks, in Hungarian territory;
(12) operational equipment of the Nagymaros system of locks
(transport equipment, maintenance machinery), in Hungarian
territory;
(13) restoration of vegetation in Hungarian territory."
In accordance with the Treaty and the concept of joint investment,
some of those structures, such as the Dunakiliti weir, the bypass canal,
the GabEikovo dam and the Nagymaros dam were to become joint prop-
erty, irrespective of the territory on which they were located.
As noted in the Judgment, by the spring of 1989 the work on Gab-

Eikovo was well advanced: the Dunakiliti dam was 90 per cent complete.
the GabEikovo dam was 85 per cent complete, the bypass canal was
between 60 per cent complete (downstream of GabEikovo) and 95 per
cent complete (upstream of GabEikovo), and the dykes of the Dunakiliti-
HruSov reservoir were between 70 and 98 per cent complete. This was not
the case in the Nagymaros sector where, although the dykes had been
built, the only structure relating to the dam itself was the coffer-dam
which was to facilitate its construction.
When Hungary, on 13 May 1989, decided to suspend works on the
Nagymaros part of the Project because of alleged ecological hazards and
later extended this to the GabEikovo section, thereby preventing the
scheduled damming of the Danube in 1989, this had a considerable,
negative impact on the Project - which was envisaged as an integrated

project and depended on the actual construction of the planned installa-
tions at Nagymaros and GabCikovo. Hungary's contribution was there-
fore considered indispensable, as some of the key structures were under
its control and situated on its territory.
Following prolonged and fruitless negotiations with Hungary regard-

ing the performance of their obligations under the Treaty, Czechoslo-
vakia proceeded, in November 1991, to what came to be known as the
"provisional solution", or Variant C. This was put into operation
from October 1992 with the damming up of the Danube a t river kilo-
metre 1851.7 on Czechoslovak territory with resulting consequences on
water and the navigation channel. It entailed the diversion of the Danube
some 10 kilometres upstream of Dunakiliti on Czechoslovak territory. In
its final stage it included the construction at Cunovo of an overflow dam
and a levee linking that dam to the south bank of the bypass canal. The
corresponding reservoir was designed to have a smaller surface area and
provided approximately 30 per cent less than the storage initially contem-
plated. Provision was made for ancillary works, namely: an intake struc-
ture to supply the Mosoni Danube; a weir t o enable, inter d i a , flood
water to be directed along the old bed of the Danube; an auxiliary ship-
lock; and two hydroelectric plants (one capable of an annual production
of 4 GWh on the Mosoni Danube, and the other with a production of
174 GWh on the old course of the Danube). The supply of the water to
the side-arms of the Danube on the Czechoslovak bank was to be secured
by means of two intake structures on the bypass canal a t DobrohoSt and
GabCikovo. Not al1 problems were solved : a solution was to be found for
the Hungarian bank, and the question of lowering the bed of the Danube
at the confluence of the bypass canal and the old bed of the river
remained.
In justification of the action, Slovakia contended that this solution was

as close to the original project as possible and that Czechoslovakia's deci-
sion t o proceed with it was justified by Hungary's decision to suspend
and subsequently abandon the construction works at Dunakiliti, which
had made it impossible for Czechoslovakia to attain the object and pur-
pose contemplated by the 1977 Treaty. Slovakia further explained that
Variant C represented the only possibility remaining to it of fulfilling the
purposes of the 1977 Treaty, including the continuing obligation to
implement the Treaty in good faith. It further submitted that Variant C
for the greater part was no more than what had already been agreed to
by Hungary, and that only those modifications were made which had
become necessary by virtue of Hungary's decision not to implement its
obligations under the Treaty.
In spite of what appeared to me not only a cogent and reasonable

explanation for its action but also an eminently legal justification for
PROJECT (SEP.OP. KOROMA)
Variant C, the Court found that, though there was a strong factual simi-
larity between Variant C and the original Project in its upstream compo-
nent (the GabCikovo System of Locks), the difference from a legal point
of view was striking. It observed that the basic characteristics of the 1977
Treaty provided for a "joint investment", "joint ownership" of the most
important construction of the GabCikovo-Nagymaros Project and for the
operation of this "joint property" as a "CO-ordinated single unit". The
Court reasoned that al1 this could not be carried out by unilateral action
such as that involving Variant C and that, despite its physical similarity
with the original Project, it differed sharply in its legal characteristics.
The Court also found that, in operating Variant C, Slovakia essentially
appropriated for its own use and benefit between 80 and 90 per cent of
the waters of the Danube before returning them to the main bed of the
river downstream of GabCikovo. This act. in the Court's view., d e ~ r i v e d
L
Hungary of its right to an equitable share of the natural resources of the

river, this being not only a shared international watercourse but an inter-
national boundary river.
In the light of these findings, the Court concluded that Czechoslovakia,

by putting into operation Variant C, did not apply the Treaty, but, on the
contrary, violated certain of its express provisions and in so doing com-
mitted a n internationally wrongful act. In its reasoning, the Court stated
that it had placed emphasis on the "putting into operation" of Variant C,
the unlawfulness residing in the damming of the Danube.
This finding by the Court calls for comment. In the first place, it is to
be recalled that the Court found that Hungary's suspension and uni-
lateral termination of the Treaty was unlawful. Secondly, the Court held
that a State party confronted, as Czechoslovakia was, with a refusa1 by
the other party to perform its part of a n agreed project is entitled to act
on its own territory and within its own jurisdiction so as to realize the
object and purpose of the treaty. This notwithstanding, the Court took
exception to the fact that Variant C did not meet the requirements of
Articles 1, 8, 9 and 10 of the 1977 Treaty regarding a "single and opera-
tional system of locks", "joint ownership" and "use and benefits of the
system of locks in equal measure". In its view, "by definition al1 this
could not be carried out by unilateral measure". This stricture of Variant
C is not, in my respectful opinion, warranted. The unilateral suspension
and termination of the Treaty and the works for which Hungary was
responsible under it had amounted not only to a repudiation of the
Treaty; it frustrated the realization of the Project as a single and opera-
tional system of works, jointly owned and used for the benefit of the con-
tracting parties in equal measure. As a result of Hungary's acts, the
objective of the original Project could only have been achieved by Slo-
vakia alone operating it; according to the material before the Court,
Variant C constituted the minimum modification of the original Project
necessary to enable the aim and objective of the original Project to be
realized. It should be recalled that but for the suspension and abandon-
ment of the works, there would have been no Variant C , and without
Variant C, the objective of the act of Hungary which the Court has quali-
fied as unlawful would have been realized thus defeating the object and
purpose of the Treaty. In my view Variant C was therefore a genuine
application of the Treaty and it was indispensable for the realization of
its object and purpose. If it had not proceeded to its construction,
according to the material before the Court, Czechoslovakia would have
been stranded with a largely finished but inoperative system, which had
been very expensive both in terms of cost of construction and in terms of
acquiring the necessary land. The environmental benefits in terms of
flood control, which was a primary object and purpose of the Treaty,
would not have been attained. Additionally, the unfinished state of the
constructions would have exposed them to further deterioration through
continued inoperation.
Variant C was also held to be unlawful by the Court because, in its

opinion, Czechoslovakia, by diverting the waters of the Danube to oper-
ate Variant C, unilaterally assumed control of a shared resource and
thereby deprived Hungary of its right to an equitable share of the natural
resources of the river - with the continuing effects of the diversion of
these waters upon the ecology of the riparian area of the Szigetkoz -
and failed to respect the degree of proportionality required by interna-

tional law.
The implication of the Court's finding that the principle of equitable
utilization was violated by the diversion of the river is not free from
doubt. That principle, which is now set out in the Convention on the
Non-Navigational Uses of International Watercourses, is not new.
While it is acknowledged that the waters of rivers must not be used in

such a way as to cause injury to other States and in the absence of any
settled rules an equitable solution must be sought (case of the Diversion
of Water from the Meuse, Judgment, 1937, P.C.I.J., Series A/B, No. 70),
this rule applies where a treaty is absent. In the case under consideration
Article 14, paragraph 2, of the 1977 Treaty provides that the contracting
parties may, without giving prior notice, both withdraw from the Hun-
garian-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 oper-
ate the Gabtikovo section of the system was contemplated with compen-
sation 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 GABCIKOVO-NAGYMAROS PROJECT (SEP.OP.KOROMA)
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 le.u speciulis. Slovakia was thus entitled to
divert enough water to operate Variant C , and more especially so if, with-
out 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 o r that the achievement of the objectives of the Treaty had been
defeated by the diversion. In the case concerning the Diversion of Wuter
frorn 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 (Judgtnent, 1937, P. C.I. J.,
Series A/B, No. 70, p. 30). Applying this test in the circumstances which
arose, Variant C can be said to have been permitted by the 1977 Treaty
as a reasonable method of implementing it. Consequently Variant C did
not violate the rights of Hungary and was consonant with the objectives
of the Treaty régime.
Moreover the principle of equitable and reasonable utilization has to
be applied with al1 the relevant factors and circumstances pertaining to
the international watercourse in question as well as to the needs and uses
of the watercourse States concerned. Whether the use of the waters of a
watercourse by a watercourse State is reasonable or equitable and there-
fore lawful must be determined in the light of al1 the circumstances. T o
the extent that the 1977 Treaty was designed to provide for the operation
of the Project, Variant C is to be regarded as a genuine attempt to
achieve that objective.
One consequence of this finding by the Court is its prescription that

unless the Parties otherwise agree, Hungary shall compensate Slovakia
for the damage sustained by Czechoslovakia and by Slovakia on account
of the wrongful suspension and abandonment by Hungary of the works
for which it was responsible; and Slovakia shall compensate Hungary for
the damage it has sustained on account of the putting into operation of
the "provisional solution" by Czechoslovakia and its maintenance in
service by Slovakia.
While this finding would appear to aim at encouraging the Parties to
negotiate an agreement so as realize the aims and objectives of the
Treaty, albeit in a modified form, it appears to suggest that the Court
considered the wrongful conduct of the Parties to be equivalent. This
somehow emasculates the fact that the operation of Variant C would not
151 C,AR~.IKOVO-NAGYMAR~S
PROJECT (SEP.OP. KOROMA)
have been necessary if the works had not been suspended and terminated
in the first place. It was this original breach which triggered the whole
chain of events. At least a distinction should have been drawn between
the consequences of the "wrongful conduct" of each Party, hence my
unwillingness to concur with the finding. While Article 38, paragraph 2,
of its Statute allows the Court to decide a case e x aequo et horzo, this
can only be done with the agreement of the parties to a dispute.
The Judgment also alluded to "the continuing effects of the diversion
of these waters on the ecology of the riparian area of the Szigetkoz". It is
not clear whether by this the Court had reached the conclusion that sig-
nificant harm had been caused to the ecology of the area by the operation
of Variant C.
In the light of the foregoing considerations, 1 take the view that the
operation of Variant C should have been considered as a genuine attempt
by an injured party to secure the achievement of the agreed objectives of
the 1977 Treaty, in ways not only consistent with that Treaty but with
international law and equity.
In his separate opinion in the case concerning the Diilersion of Water
Jiom tlze Meu.~e,Judge Hudson stated that
"[Wlhat are widely known as principles of equity have long been
considered t o constitute a part of international law, and as such they
have often been applied by international tribunals, . . ." (Jir~/gtnent,
1937. P.C. I. J., Series A/B, No. 70, p. 76).
He went on to point out that

"It would seem to be an important principle of equity that where
two parties have assumed an identical or a reciprocal obligation, one
party which is engaged in a continuing non-performance of that
obligation should not be permitted to take advantage of a similar
non-performance of that obligation by the other party. The principle
finds expression in the so-called maxims of equity which exercised
great influence in the creative period of the development of the
Anglo-American law. Some of these maxims are . . .; 'He who seeks
equity must do equity.' It is in line with such maxims that 'a court of
equity refuses relief to a plaintiff whose conduct in regard to the
subject-matter of the litigation has been improper' ( 1 3 Hulsbury S
of'Englund (2nd ed., 1934). p. 87). A very similar principle was
LLIIC'.T
received into Roman Law. The obligations of a vendor and a vendee
being concurrent, 'neither could compel the other to perform unless
he had done, or tendered, his own part' (Buckland, Text Book oJ
Ron?an Laiil (2nd ed.. 1932), p. 493)." (IhicL, p. 77.)
Judge Hudson took the view that:

"The general principle is one of which an international tribunal
should make a very sparing application. It is certainly not to be
thought that a complete fulfilment of al1 its obligations under a

treaty must be proved as a condition precedent to a State's appear-
ing before a n international tribunal to seek a n interpretation of that
treaty. Yet, in a proper case, and with scrupulous regard for the limi-
tations which are necessary, a tribunal bound by international law
ought not to shrink from applying a principle of such obvious fair-
ness." (P.C.I. J., Series A/B, No. 70, p. 77.)
Judge Hudson continued,

"Yet, in a particular case in which it is asked to enforce the obliga-
tion to make reparation, a court of international law cannot ignore
special circumstances which may cal1 for the consideration of equi-
table principles." (Ihid.,p. 78.)
It is my view that this case, because of the circumstances surrounding it,
is one which calls for the application of the principles of equity.
The importance of the River Danube for both Hungary and Slovakia
cannot be overstated. Both countries, by means of the 1977 Treaty, had
agreed to CO-operatein 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 a n extent sufficient to have war-
ranted the unilateral termination of the Treaty. The Court has gone a
long way, rightly in my view, in upholding the principle of the sanctity of
treaties. Justice would have been enhanced had the Court taken account
of special circumstances as mentioned above.
(Signed) Abdul G. KOROMA.

DISSENTlNG OPINION O F J U D G E O D A
1. 1 have voted against operative paragraph 1 C of the Judgment

(para. 155) as 1 a m totally unable to endorse the conclusions that, on the
one hand, "Czechoslovakia was entitled to proceed, in November 1991,
to the 'provisional solution'" and, on the other hand, that "Czechoslo-
vakia was not entitled to put into operation, from October 1992, this
'provisional solution'" and 1 cannot subscribe to the reasons given in the
Judgment in support of those conclusions.
1 have also voted against operative paragraph 2 D (para. 155). 1 have
done so because the request made by myself and other judges to separate
this paragraph into two so that it could be voted on as two separate
issues was simply rejected for a reason which 1 d o not understand. 1 have
therefore had to vote against this paragraph as a whole, although 1 had
wanted to support the first part of it.
1 am in agreement with the conclusions that the Court has reached on
the other points of the operative paragraph of the Judgment. However,
even with regard to some of the points which 1 support, my reasoning
differs from that given in the Judgment. 1 would like to indicate several
points on which 1 differ from the Judgment througl~a brief presentation
of my overall views concerning the present case.
1. T H E 1977 TREATY A N D T H E JOINTCONTRACTUAL

PLAN(JCP)
F O R T H E GAE3i.1~0~0-NAGYMAROS SYSTEM
OF LOC'KS
2. ( Thp Project.) The dispute referred to the Court relates to a Project

concerning the management of the river Danube between Bratislava and
Budapest, which a number of specialists serving the Governments of
Czechoslovakia and Hungary, as well as those employed in corporations
of those two States (which were governed in accordance w i t h t h e East
European socialist régime), had been planning since the end of the
Second World War under the guidance of the Soviet Union.
It is said that Hungary had, even before the rise of the communist
régime, proposed the building of a power plant at Nagyinaros on Hun-
garian territory. However, with the CO-operationof the socialist countries
and under the leadership of the Soviet Union, the initiative for the man-
agement of the river Danube between Bratislava and Budapest was taken
over by Czechoslovakia, and the operational planning was undertaken by
technical staff working for COMECON.
154 GABCIKOVO-NAGYMAROS PROJECT (DISS.OP.ODA)
The Project would have entailed the construction of (i) a bypass canal
to receive water diverted at the Dunakiliti dam (to be constructed on
Hungarian territory) and (ii) two power pla.nts (one at GabEikovo on the
bypass canal on Czechoslovak territory and one a t Nagymaros on Hun-
garian territory). It may well have been the case that the bypass canal was
also required for the future management of the river Danube with respect
to flood prevention and the improvement of international navigation
facilities between Bratislava and Budapest. However, the bypass canal
was aimed principally a t the operation of the GabEikovo power plant on
Czechoslovak territory and the Dunakiliti dam, mostly on Hungarian
territory, was seen as essential for the filling and operation of that canal,
while the Nagymaros System of Locks on Hungarian territory was to
have been built for the express purpose of generating electric power at
Nagymaros and partially for the purpose of supporting the peak-mode
operation of the GabEikovo power plant.
The whole Project would have been implemented by means of "joint

investment" aimed at the achievement of "a single and indivisible opera-
tional system of works" (1977 Treaty, Art. 1, para. 1).
3. (T/w 1977 Treaty.) The Project design for the GabEikovo-Nagy-
maros System of Locks had been developed by administrative and tech-
nical personnel in both countries and its realization led to the conclusion,
on 16 September 1977, of the Treaty Concerning the Construction and
Operation of the Gablikovo-Nagymaros System of Locks. 1 shall refer to
this Treaty as the 1977 Treaty.
The 1977 Treaty was signed by the Heads of each Government (for
Czechoslovakia, the Prime Minister; for Hungary, the Chairman of the
Council of Ministers), and registered with the United Nations Secretariat
(UNTS, Vol. 236, p. 241). It gave, on the one hand, an overall and gen-
eral picture (as well as some details of the construction plan) of the
Project for the GabEikovo-Nagymaros System of Locks (which would,
however, have in essence constituted a "partnership" according to the
concept of municipal law) (see 1977 Treaty, Chaps. I-IV), while, on
the other hand, it aimed, as a n ordinary international treaty, to serve
as a n instrument providing for the rights and duties of both parties in
relation to the future management of the river Danube (see 1977 Treaty,
Chaps. V-XI).
Under the plan described in the 1977 Treaty, the cost of the "joint
investment" in the system of locks was to have been borne by the respec-
tive parties and the execution of the plan, including labour and supply,
was to have been apportioned between them (1977 Treaty, Art. 5 ) . The
Dunakiliti dam, the bypass canal, the GabEikovo series of locks and the
Nagymaros series of locks were to have been owned jointly (1977 Treaty,
Art. 8) and the parties assumed joint responsibility for the construction
of those structures. More concretely, the project for the diversion of the
waters of the river Danube at Dunakiliti (on Hungarian territory) into
155 GAB~~KOVO-NAGYMAROS
PROJECT (DISS.OP. ODA)
the bypass canal (on the territory of Czechoslovakia), and the construc-
tion of the dams together with the power stations at GabEikovo and
Nagymaros were to have been funded jointly by the parties. The electric
power generated by those two power stations was to have been available
to them in an equal measure (1977 Treaty, Art. 9).
It must be noted, however, that the 1977 Treaty does not seem to have
been intended to prescribe in detail the content of the construction plan,
that being left to the Joint Construction Plan to be drafted by the parties
- which, for the sake of convenience, 1 shall refer to as the JCP. While
some detailed provisions in Chapters I-IV of the 1977 Treaty concerning
the completion of the Project did in fact, as stated above, correspond to
provisions subsequently incorporated into the JCP, the Preamble to the
1977 Treaty confines itself to stating that "[Hungary and Czechoslovakia]
decided to conclude a n Agreement concerning the construction and
operation of the Gabtikovo-Nagymaros System of Locks". The 1977
Treaty lacks the form of words usually present in any international treaty
which generally indicates that the parties have tllus ugrrrd the,follo~z,ing
te.\-t (which text usually constitutes the main body of the treaty). This fact
further reinforces the view that the 1977 Treaty is intended only to indi-
cate the basic construction plan of the Project and to leave the details of
planning to a separate instrument in the form of the JCP.
4. ( Thc Joint Contr-ut~tuulP1u11.l The drafting of the J C P was already

anticipated in the Agreement regarding the Drafting of the Joint Con-
tractual Plan concerning the Gabtikovo-Nagymaros Barrage System of
6 May 1976 (hereinafter referred to as the 1976 Agreement l ) , signed by
plenipotentiaries at the level of Deputy Minister. The Hungarian transla-
tion states in its Preamble that
"[the parties] have decided on the basis of a mutual understanding
with regard to the joint implementation of the Hungary-Czechoslo-
vakia Gabtikovo-Nagymaros Barrage System . . . to conclude an
Agreement for the purpose of drafting a Joint Contractual Plan for
the barrage system".
As stated above, the 1976 Agreement was concluded in order to facilitate
the future planning of the Project and the 1977 Treaty provided some
guidelines for the detailed provisions to be included in the JCP, which
was to be developed jointly by the representatives of both States as well
as by the enterprises involved in the Project. The time-schedule for the
implementation of the construction plan was subsequently set out in the
Agreement on Mutual Assistance in the Course of Building the Gab-
' This Agreement is not to be found, cven in the Worlti Trc.~rtj,Inde\. 1983. The Englisli
texi is to be found in the documents prcsciitcd by both Parties but they are not identical
(Memorial of Slovakia, Vol. 2. p. 25; Memorial of Hungary, Vol. 3. p. 219).
PROJECT (DISS.OP.ODA)
Cikovo-Nagymaros Dam of 16 September 1977 (hereinafter referred to as

the 1977 Agreement2), the same date on which the 1977 Treaty was
signed3. It was not made clear whether those two Agreements of 1976
and 1977 themselves coristituted the JCP or whether the JCP would be
further elaborated on the basis of these Agreements.
In fact, the text of the JCP seems to have existed as a separate instru-
ment but neither Party has submitted it to the Court in its concrete and
complete form. A "summary description" of the JCP, dated 1977, was
presented by Hungary (Memorial of Hungary, Vol. 3, p. 298) while Slo-
vakia presented a "summary report" as a part of the "JCP Summary
Documentation" (Memorial of Slovakia, Vol. 2, p. 33). Neither of those
documents gave a complete text but they were merely compilations of
excerpts. Neither document gave a precise indication of the date of draft-
ing. What is more, one cannot be certain that those two documents as
presented by the two Parties are in fact identical. The Judgment appar-
ently relies on the document presented by Hungary and received in the
Registry on 28 April 1997 in reply to a question posed by a Judge on
15 April 1997 during the course of the oral arguments. This document,
the Joint Contractual Plan's Preliminary Operating Rules and Mainte-
nance Mode, contains only extremely fragmentary provisions. 1 submit
that the Court did not, at any stage, have sufficient knowledge of the JCP
in its complete form.
5. (Amendment of the Joint Contractual Plan.) 1 would like to repeat
that the J C P is a large-scale plan involving a number of corporations of
one or the other party, as well as foreign enterprises, and that the JCP, as
a detailed construction plan for the whole Project, should not be consid-
ered as being on the same level as the 1977 Treaty itself which, however,
also laid down certain guidelines for the detailed planning of the Project.
As in the case of any construction plan of a "partnership" extending over
a long period of time, the JCP would in general have been, and has been
in fact, subject to amendments and modifications discussed between the
parties at working level and those negotiations would have been under-
taken in a relatively flexible manner where necessary, in the course of the
construction, without resort to the procedures relating to amendment of
the 1977 Treaty. In other words, the detailed provisions of the construc-
tion plan of the J C P to implement the Project concerning the GabCikovo-
Nagymaros System of Locks as defined in the 1977 Treaty should be
considered as separate from the 1977 Treaty itself.
' This Agreement is not to be found. even in the World Trcuty Index, 1983. The English
text is to be found in the documents presented by both Parties but they are not identical
(Memorial of Slovakia, Vol. 2, p. 71 : Mcmorial of Hungary, Vol. 3. p. 293).
' The time-limit for the construction plan was revised in the Protocol concerning the
Amendment of the [1977] Treaty signed on 10 October 1983; see also the Protocol con-
cerning the Amendment of the 1977 Agreement signed on 10 October 1983 and the Pro-
tocol concerning the Amcndment of the 1977 Agreement aigiled on 6 February 1989.
157 GABC~KOVO-NAGYMAROSPROJECT (DISS.OP.ODA)
6. ( T h e lctck of provision in the JCP,for dispute srttlemenr.) One may

well ask how the parties should have settled any differences of views
which might have occurred between the two States with regard t o the
design and planning of the construction o r the amendment of that design.
The designing or the amendment of the design should have been effected
with complefe agreement between the two parties but the 1976 Agree-
ment, which was the first document providing for the future design of the
JCP, scarcely contemplated the possibility of the two sides being unable
to reach a n agreement in this respect. The 1976 Agreement states that, if
the investment and planning organs cannot reach a mutual understand-
ing on the issues which are disputed within the CO-operation team, the
investors shall report to the Joint Committee for a solution. There was no
provision for a situation in which the Joint Committee might prove
unable to settle such differences between the parties. It was assumed that
there was no authority above the Joint Committee which would be com-
petent to determine the various merits of the plan or of proposed amend-
ments to it.
In view of the fact that this Project was to be developed by COMECON
under Soviet leadership, it may have been tacitly considered that no dis-
pute would ever get to that stage. In the event that no settlement could be
reached by the Joint Committee, one o r the other party would inevitably
have had to proceed to a unilateral amendment. However, such an
amendment could not have been approved unconditionally but would
-
have had to have been followed bv a statement of the legitimate reasons
underlying its proposal.
7. ( T h e 1977 Treuty und the Joint Coniructuul Plun.) It is therefore my
conclusion that, on the one hand, the 1977 Treaty between Czechoslova-
kia and Hungary not only provided for a generalized régime of rights and
duties accepted by each of them in their mutual relations with regard to
the management of the river Danube (1977 Treaty, Chaps. V-XI), but
also bound the parties to proceed jointly with the construction of the
Gabtikovo-Nagymaros System of Locks (the construction of (i) the
Dunakiliti dam which would permit the operation of the bypass canal,
(ii) the GabCikovo dam with its power plant and (iii) the Nagymaros dam
with its power plant). The construction of the GabEikovo-Nagymaros
System of Locks might have constituted a type of "partnership"
which would have been implemented through the JCP (1977 Treaty,
Chaps. 1-IV).
On the other hand, the J C P was designed to incorporate detailed items
of technical planning as well as provisions for their amendment or revi-
sion and did not necessarily have the same legal effect as the 1977 Treaty,
an international treaty.
Those two instruments, that is, the 1977 Treaty and the JCP (which
was designed and modified after 1977), should be considered as separate
instruments of differing natures from a legal point of view.
II. THESUSPENSION A N D SUBSEQUENT ABANDONMENT

OF THE WORKSBY HUNGARY I N 1989
(Special Agreement, Art. 2, para. 1 l u ) ; Art. 2, para. 2)
1. Speciul Agreement, Article 2, Purugruph 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 subsequently aban-
don, in 1989, the works on the Nagymaros Project and on the part
of the Gabtikovo Project for which the Treaty attributed responsi-
bility to [Hungary]" (Art. 2, para. 1 (a)).
9. (Actuul situution in the lute 1980s.) This question put in the Special
Agreement should, in my view, have been more precisely worded to
reflect the actual situation in 1989. The work on the Gabtikovo Project
had by that time already been completed; the work at Nagymaros was
still at a preliminary stage, that is, the work on that particular barrage
system had, to al1 intents and purposes, not even started.
Hungary's actions in 1989 may be summed up as follows: firstly, on
13 May 1989, Hungary decided to suspend work a t Nagymaros pending
the completion of various environmental studies. Secondly, Hungary
decided, on the one hand, on 27 October 1989, to abandon the Nagy-
maros Project and, on the other, to maintain the status quo at Dunakiliti,
thus rendering impossible the diversion of waters to the bypass canal a t
that location. Hungary had, however, made it clear at a meeting of the
plenipotentiaries in June 1989 that it would continue the work related to
the GabEikovo sector itself, so the matter of the construction of the Gab-
Eikovo Barrage System itself was not an issue for Hungary in 1989. The
chronology of Hungary's actions is traced in detail in the Judgment.
10. (Violation oj'the 1977 Treaty.) Whatever the situation was in 1989
regarding the works to be carried out by Hungary, and in the light of the
fact that the failure to complete the Dunakiliti dam and the auxiliary
structures (the sole purpose of which was to divert water into the bypass
canal) would have made it impossible to operate the whole GabCikovo-
Nagymaros System of Locks as "a single and indivisible operational sys-
tem of works" (1977 Treaty, Art. 1, para. l ) , Hungary should have been
seen to have incurred international responsibility for its failure to carry
out the relevant works, thus being in breach of the 1977 Treaty. It is to be
noted that, at that stage, Hungary did not raise the matter of the termina-
tion of the 1977 Treaty but simply suspended or abandoned the works
for which it was responsible.
In the light of the actions taken by Hungary with regard t o the Gab-
Eikovo-Nagymaros System of Locks, there can be no doubt that in 1989
Hungary violated the 1977 Treaty. The question remains, however,
whether Hungary was justified in violating its treaty obligations. 1 fully
share the view of the Court when it concludes that
"Hungary was not entitled to suspend and subsequently abandon, in

1989, the works on the Nagymaros Project and on the part of the
GabCikovo Project for which the [1977] Treaty . . . attributed respon-
sibility to it" (Judgment, operative paragraph 155, point 1 A )
and that Hungary's wrongful act could not have been justified in any
way.
Let me examine the situation in more detail. Hungary relies, in connec-
tion with the Dunakiliti dam and the diversion of waters into the bypass
canal at Dunakiliti, upon the deterioration of the environment in the
Szigetkoz region owing to the reduced quantity of available water in the
old Danube river bed. ln my view, however, the decrease in the amount
of water flowing into the old bed of the Danube as a result of the opera-
tion of the bypass canal would have been an inevitable outcome of the
whole Project as provided for in the 1977 Treaty.
1 1. ( H u n g u r j ~'.Y ill-jiour~dcd c h i m o j ' eco/ogica/ neccssity. ) Certain

effects upon the environment of the Szigetkoz region were clearly antici-
pated by and known to Hungary at the initial stage of the planning of the
whole Project. Furthermore, there was n o reason for Hungary to believe
that an environmental assessment made in the 1980s would give quite dif-
ferent results from those obtained in 1977, and require the total aban-
donment of the whole Project.
1 have no doubt that the GabCikovo-Nagymaros System of Locks was,

in the 1970s, prepared and designed with full consideration of its poten-
tial 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 1 cannot believe that this assessment
made in the 1970s would have been significantly different from a n eco-
logical 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.
1 particularly endorse the view taken by the Court when rejecting the
argument of Hungary, that ecological necessity cannot be deemed to jus-
tify 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'thc river. Dunuhc.) 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 GabEikovo-Nagymaros Systern of Locks was cer-
tainly founded on an awareness of the importance of environmental pro-
tection. It cannot be said that the drafters of either the Treaty itself o r of
the J C P failed to take due account of the environment. There were, in

addition, no particular circumstances in 1989 that required any of the
research o r studies which Hungary claimed to be necessary, and which
would have required several years to be implemented. If n o campaign
had been launched by environmentalist groups, then it is my firm convic-
tion that the Project would have gone ahead as planned.
What is more, Hungary had, at least in the 1980s, no intention of with-

drawing from the work on the Gabtikovo power plant. One is at a loss to
understand how Hungary could have thought that the operation of the
bypass canal and of the GabCikovo power plant, to which Hungary had
not objected at the time, would have been possible without the comple-
tion of the works at Dunakiliti dam.
13. (Ecologicul necessity und Srute responsibility.) 1 would like t o

make one more point relating to the matter of environmental protection
under the 1977 Treaty. The performance of the obligations under that
Treaty was certainly the joint responsibility of both Hungary and Czecho-
slovakia. If the principles which were taken as the basis of the 1977
Treaty o r of the J C P had been contrary to the general rules of interna-
tional law- environmental law in particular - the two States, which
had reached agreement on their joint investment in the whole Project,
would have been held jointly responsible for that state of affairs and
jointly responsible to the international comrnunity. This fact does not
imply that the one purty (Czechoslovakia, and later Slovakia) bears
responsibility toti~ardsthe orher (Hungary).
What is more, if a somewhat more rigorous consideration of environ-

mental protection had been needed, this could certainly have been given
by means of remedies of a technical nature to those parts of the J C P -
not the 1977 Treaty itself- that concern the concrete planning o r opera-
tion of the whole System of Locks. In this respect, 1 d o 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. (Generul comments on the prrservution of the environment.) If

1 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 o r 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 o r less contradictory issues of economic develop-
161 G A B ~ ~ K O ~ ~ - N A CPROJECT
, Y M A(DISS.
R ~ SOP. ODA)
ment on the one hand and preservation of the environment on the other,
with a view to maintaining sustainable development. Any construction
work relating to economic development would be bound to affect the
existing environment to some extent but modern technology would, 1 am
sure, be able to provide some acceptable ways of balancing the two con-
flicting interests.
2. Speciul Agroerncnt, Article 2, Purugruph 2

15. The Court is asked, under Article 2, paragraph 2, of the Special
Agreement, to
"determine the legal consequences, including the rights and obliga-
tions for the Parties, arising from its Judgment on the questions in
paragraph 1 of this Article".
16. (Re.spotî.sihility of'Hut~gury.)In principle, Hungary must compen-
sate Slovakia for "the damage sustained by Czechoslovakia and by Slo-
vakia on account of the suspension and abandonment by Hungary of
works for which it was responsible". 1 was, however, in favour of the
first part of operative paragraph 155, point 2 D , of the Judgment. As 1
stated at the outset, 1 had to vote against the whole of paragraph 155,
point 2 D, as that first part of the paragraph was not put t o the vote as a
separate issue.
17. (Dijlhrence hrtivren tlie Guhtikovo Project und tlze Nugynzuros
Proj@ct.)When one is considering the legal consequences of the respon-
sibility incurred by Hungary on account of its violation of its obligations
to Czechoslovakia under the 1977 Treaty and the JCP, it seems to me
that there is a need to draw a further distinction between (i) Hungary's
suspension of the work on the Dunakiliti dam for the diversion of water
into the bypass canal, which rendered impossible the operation of the
Gabtikovo power plant, and (ii) its complete abandonment of the work
on the Nagymaros System of Locks, each of which can be seen as having
a completely different character.
18. f Tlze Dunakiliti dum und the Guhtikovo plunt.) The construction
of the Dunakiliti dam and of the bypass canal, which could have been
filled only by the diversion of the Danube waters at that point, form the
cornerstone of the whole Project. Without the Dunakiliti dam the whole
Project could not have existed in its original form. The abandonment of
work on the Dunakiliti dam meant that the bypass canal would be
unusable and the operation of the Gabtikovo power plant impossible.
Hungary must assume full responsibility for its suspension of the
works at Dunakiliti in violation of the 1977 Treaty.
The reparation to be paid by Hungary to Slovakia for its failure in this

respect, as prescribed in the 1977 Treaty, will be considered in the fol-
lowing part of this opinion, together with the matter of the construction
of the Cunovo dam by Czechoslovakia, which took over the function of
the Dunakiliti dam for the diversion of water into the bypass canal (see
para. 34 below).
19. (The Nagymuro.~dum - 1.) With regard to the Nagymaros dam,
Hungary cannot escape from its responsibility for having abandoned an
integral part of the whole Project. However, this matter is very different
from the situation concerning the GabCikovo Project. In fact, the site
where the Nagymaros power plant was to have been built is located com-
pletely on Hungarian territory. Although the plant would also have sup-
plied electric power to Czechoslovakia just as the Gabtikovo power plant
would likewise have provided a part of its electric power to Hungary, the
amount of power to be produced by the GabCikovo power plant was far
greater than that predicted for the Nagymaros power plant.
In 1989, Hungary seems to have found that the Nagymaros power

plant was no longer necessary to its own interests. If the Nagymaros dam
was initially considered to be a part of the whole Project, it was because
an equal share of the power output of the Nagymaros power plant was to
have been guaranteed to Czechoslovakia in exchange for an equal share
for Hungary of the electric power generated by the GabEikovo power
plant. The anticipated supply of electric power from the Nagymaros
plant could have been negotiated taking into account the agreed supply
t o Hungary of electric power from the Gabtikovo plant. The Nagymaros
dam would also have been required essentially in order to enable the
operation of the GabCikovo power plant in peak mode and it might
therefore have been seen as not really essential to the Project as a whole.
20. (The Nugymaros dam - I I . ) The matter of the equal shares of the
electric power from the Nagymaros power plant to be guaranteed to
Czechoslovakia and the feasibility of the operation of the Gabtikovo
power plant in peak mode could have been settled as modalities for the
execution of the JCP, even in the event of the abandonment of the Nagy-
maros power plant, as technical questions could be dealt with in the
framework of the JCP without any need to raise the issue of reparations
to be paid by Hungary to Czechoslovakia in connection with the aban-
donment of the Nagymaros dam.
There can be no doubt that the construction of the Nagymaros System
of Locks was seen as a major link in the chain of the whole Project in
connection with the construction of the GabCikovo System of Locks on
Czechoslovak territory. The construction of the Nagymaros System of
Locks was, however, essentially a matter that fell within Hungary's exclu-
sive competence on ils own territory. l n the late 1980s, Hungary found it
no longer necessary to produce electricity from the Nagymaros power
plant on its own territory, and the abandonment of the Nagymaros dam
did not, in fact, cause any significant damage t o Czechoslovakia and
did not have any adverse affect on interests that Czechoslovakia would
otherwise have secured.
In this connection, 1 must add that Czechoslovakia would have been
permitted under international law as prescribed in the Vienna Conven-
tion on the Law of Treaties to terminate the 1977 Treaty on the ground
of Hungary's failure to perform the obligations of that Treaty. In fact,
however, Czechoslovakia did not d o so but chose to implement the 1977
Treaty without Hungary's co-operation because the completion of the
Project, as envisaged in the 1977 Treaty, would be greatly to its benefit.
Thus, although Hungary has to bear the responsibility for its abandon-
ment of the Nagymaros dam as a part of the joint project of the
GabEikovo-Nagymaros System of Locks, the reparations that Hungary
should pay to the present-day Slovakia as a result are minimal (see para. 34
below).
III. T H EIMPLEMENTATION OF VARIANT C ( D A M M I NOF

G
T H E WATERS
AT CUNOVO) BY CZECHOSLOVAKIA
(Special Agreement, Art. 2, para. 1 [h) ; Art. 2, para. 2)
A r t i r . 1 ~2,~ Prrrcrgruplz 1 (b)

1. S ~ ~ c i (Agrec.n~c>nt,
rl
21. The Court is requested under the terms of the Special Agreement
to decide
"whether [Czechoslovakia] was entitled to proceed. in November
1991, to the 'provisional solution' and to put into operation
from October 1992 this system" (Art. 2, para. I i h ) ) .
22. (Provi.sionu1 .sol~rtion= Vr~rirrntC.) As Hungary had suspended
work on part of the GabEikovo Project, more particularly the work at
Dunakiliti, thus preventing the diversion of the water into the bypass
canal. the finalization of the whole Project, which was already nearly
70 per cent complete, was rendered impossible.
In order to accomplish the purpose of the 1977 Treaty. Czechoslo-

vakia, one of the parties to that Treaty, was forced to start work on the
diversion of the waters into a bypass canal that lay within its own terri-
tory. That was the commencement of the so-culled "provisional solution"
- in other words, Variant C in November 199 1 . Czechoslovakia had
-
previously made it clear to Hungary that. if Hungary were to abandon

unilaterally the works at Dunakiliti (which constituted the basis of the
whole Project between the two States), it would have to consider an alter-
native plan to accomplish the agreed original Project. Variant C was
designed by Czechoslovakia because it had no other option in order to
give life to the whole Pro~ect.
Since the agreed basic concept of the whole Project under the 1977
164 GABCIKOVO-NAGYMAROS PROJECT (DISS.OP. ODA)
Treaty had been jeopardized by Hungary, and since the benefit which
Czechoslovakia would have enjoyed as a result of the power plant at
Gabtikovo and al1 the benefits which would have been available to both
States with regard to international navigation as well as water manage-
ment (including flood prevention) of the river Danube had thereby been
threatened, it was permissible and not unlawful f o r Czechoslovakia to
start work on Variant C (the construction of the Cunovo dam). This
would have an effect similar to the original plan contemplated in the 1977
Treaty, that is, the diversion of water into the bypass canal. Hungary, for
its part, had from the outset given its full agreement to the diversion of
the Danube waters into a bypass canal at Dunakiliti on its own territory.
23. ( T h e laiifulness of the con.~tructionand operation of Variant C.)

The Court has found that "Czechoslovakia was entitled to proceed,
in November 1991, to the 'provisional solution"' (Judgment, para. 155,
point 1 B) under the 1977 Treaty, which provided for a "partnership" for
the construction of a magnificent Project, but "was not entitled to put
into operation, from October 1992, this 'provisional solut~on"' (Judg-
ment, para. 155, point 1 C), that is, diverting the waters at Cunovo. The
"provisional solution" was effected in order that Czechoslovakia might
secure its rights and fulfil its obligations under the 1977 Treaty. Its action
implied nothing other than the accomplishment of the original Project.
Czechoslovakia claimed that the construction of the Cunovo dam could
have been justified as a countermeasure taken in response to the wrongful
act of Hungary (that is, the abandonment of the works at Dunakiliti) but
1 believe that the construction of the Cunovo dam was no more than the
implementation of an alternative means for Czechoslovakia to carry out
the Project in the context of the JCP.
1 would like to repeat that 1 cannot agree with the Judgment when
it states, as 1 pointed out in paragraph 1 above, that "Czechoslovakia
was entitled t o proceed . . . to the 'provisional solution'" but it "was not
entitled to put into operation . . . this 'provisional solution"' (see also
Judgment, para. 79). 1 wonder if the Court is really of the view that
construction work on a project is permissible if the project ultimately,
however, may never be used? The plan to divert the waters of the
Danube river into the bypass canal where the Gabtikovo power plant
was t o be constructed was the essence of the whole Project with which
Hungary was in full agreement.
The Judgment states that the diverting of the Danube waters into the
bypass canal was not proportionate to the injury suffered by Czechoslo-
vakia as a result of Hungary's wrongful act (Judgment, para. 85). How-
ever, 1 hold the firm view that since Hungary did nothing to divert the
waters at Dunakiliti, thus failing to execute its Treaty obligations, Czecho-
slovakia inevitably had to proceed with Variant C, that is, the construc-
tion of the Cunovo dam and the diversion of the waters of the Danube at
that point, in execution of the JCP, although this was not explicitly
authorized in the 1977 Treaty. This would have been a good reason to
165 GABC~KOVO-NA<;Y M A R ~(DISS.
I>RO.IEC'T S OP. ODA)
revise the J C P in order to implement the 1977 Treaty, although the con-
sent of Hungary to that solution was not obtained. Czechoslovakia had
the right to take that action.
In this respect it sliould be added that

24. ( Voluni~.q f ' i / i v c r t c ~ii3crtc~r.s.)
l
the construction and operation of the ~ u n o v odam was simply uiider-
taken in order to replace the Dunakiliti dam - while control of the Dan-
ube waters, as covered by Chapters V-XI of the 1977 Treaty, is another
matter entirely as 1 have already stated (see para. 3). The Judg-
ment seems to indicate that Czeclioslovakia acted wrongfully by uni-
laterally diverting an undue proportion of the Danube waters into the
bypass canal, but tlie distribution o r sharing of those waters does not fa11
squarely within the framework of the construction and operation of Vari-
ant C. (1 wonder whether control over the sharing of the water would
have fallen under the exclusive competence of Hungary if the Dunakiliti
dam had been built.)
The ~ u i i o v odam, which replaced the Dunakiliti dam, is said to have
diverted 90 per cent of the available water iiito the bypass canal on
Czechoslovak territory. This figure for the division of the water inight
not reflect the original intention of the parties. each of which wanted to
have a n equitable share of the waters, with a reasonable amount of the
water going into the old Danube river bed and a similar reasonable
amount goiiig into the bypass canal. However. the way in which the
waters are actually divided does nqt result simply from the r.or7.struc8tio~7
c f a dam at either Dunakiliti o r at Cunovo but, the diversion of waters at
Cunovo has. in fact, been operated by Czechoslovakia itself under its
own responsibility.
The matter of tlie sharing of the waters between the bypass canal and
the old Danube river bed is but one aspect of the opcratior1 of the system
and could have been negotiated between the two States in an effort to
carry on applying the JCP. A niinimal share of the river waters as cur-
rently discharged iiito the old Danube river bed might have been contra-
dictory to the original Project, and for this, Czechoslovakia is fully
responsible.
This matter, however, might well have been rectified by soine mutually
acceptable arrangement. It may well be possible to control the distribu-
tion of the water at Cunovo by the use of sluice-gates or by a moditica-
tion to the design of the dyke separating the waters in the Cunovo reser-
voir. The control of the water was /lot the essence of the Variant C
project and could still be dealt with in a more flexible manner through a
revision o r redrafting of the relevant texts of the JCP.
25. The Court is requested under Article 2. paragraph 2, of the Special

Agreement
"to determine the legal consequences, including the rights and obli-
gations of the Parties, arising from its Judgment on the questions in
paragraph 1 of this Article".
26. ( T h e lu~tlfulnessof Vuriant C.) The construction of Variant C was
not unlawful and Slovakia did not incur any responsibility to Hungary,
except that the way in which the Cunovo dam was controlled by Czecho-
slovakia seems to have led to a n unfair division of the waters between the
old Danube river bed and the bypass canal. Slovakia is entitled to repara-
tion in the form of monetary compensation from Hungary for some por-
tion of the cost of the construction work on the Cunovo dam met by
Czechoslovakia alone as a result of Hungary's failure to execute its
Treaty obligations concerning the completion of the Gabeikovo-
Nagymaros System of Locks. The cost of the construction of the Cunovo
dam and the related works should in part be borne by Hungary but, in
exchange, it should be offered CO-ownershipof it. On the other hand, if
the operation of the ~ u n o v odam diverting waters into the old Danube
river bed has caused any tangible damage to Hungary, Slovakia should
bear the responsibility for this mishandling of the division of waters. It
must be noted, however, that, as a result of the planning of this whole
Project (especially the bypass canal), the volume of water flowing into the
old river bed could not be as great as before the Project was put into
operation.
IV. TERMINATION OF THE 1977 TREATY BY HUNGARY

(Special Agreement, Art. 2, para. 1 ( c ) ; Art. 2, para. 2)
1. Special Agreement, Article 2, Purugruph 1 (c)
27. The Court is requested under the terms of the Special Agreement
to decide "what are the legal effects of the notification, on 19 May 1992,
of the termination of the Treaty by [Hungary]" (Art. 2, para. 1 (c)).
28. (Hungary's notijicution of terminution of the 1977 Treuty.) This
question concerns nothing other than the interpretation of the law of
treaties, as the Judgment properly suggests. The termination of the 1977
Treaty is essentially different from an amendment of the JCP. Hungary
claims that, as Variant C was in contradiction of the Plan and thus con-
stituted a wrongful act, the 1977 Treaty could be terminated because of
that alleged violation of the Treaty by Czechoslovakia.
1 a m in agreement with the Judgment when it States that the termina-

tion of the 1977 Treaty by Hungary does not meet any of the criteria for
the termination of a treaty as set out in the Vienna Convention on the
Law of Treaties, which is considered as having the status of customary
international law. 1 share the view of the Court that the 1977 Treaty has
167 GABCIKOVO-NAGYMAROS PROJECT (DISS.OP. ODA)
remained in force, as the notification of termination made by Hungary in

1992 could not have any legal effect (Judgment, para. 155, point 1 D).
2. Special Agreement, Article 2, Paragraph 2

29. N o legal consequences will result from the Court's Judgment in
this respect, since the notification of termination of the 1977 Treaty by
Hungary must be seen as having had no legal effect.
V. THE F I N A LSETTLEMENT
(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 execu-
tion."
31. (Negofiations under Article 5 of the Special Agreement.) As 1 have
already said, my views differ from those set out in the Judgment in that
1 believe that Czechoslovakia was entitled to proceed to the provisional
solution, namely, not only t h e construction of the Cunovo dam but also
the operation of that dam at Cunovo in November 1992 for diversion of
water into the bypass canal. As 1 see it, Czechoslovakia did not violate
the 1977 Treaty. It is my opinion that the "negotiations" between Hun-
gary and Slovakia under Article 5 of the Special Agreement should be
based on this understanding and not on the finding stated in the Judg-
ment in its operative paragraph 155, points 1 C and 2 D.
32. ( T h e umendment of the Joint Contructuul Plun.) The implementa-

tion by Czechoslovakia of Variant C - the construction of the ~ u n o v o
dam and the damming of the waters for diversion into the bypass canal
- was a means of executing the plan for the Gabtikovo-Nagymaros Sys-
tem of Locks which had originally been agreed by the Parties. The imple-
mentation of Variant C will not remain a "provisional" solution but will,
in future, form a part of the JCP.
The mode of operation at the Gabëikovo power plant should be
expressly defined in the amended J C P so as to avoid the need for opera-
tion in peak mode, as this has already been voluntarily abandoned by the
Parties and does not need to be considered here.
The way in which the waters are divided at ~ u n o v oshould be negoti-

ated in order to maintain the original plan, that is, an equitable share of
the waters - and this should be spelt out in any revision o r 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 satisfac-
tory operation of the Gabtikovo power plant by Slovakia, as well as the
maintenance of the bypass canal for flood prevention and the improve-
ment of navigation facilities. 1 would suggest that the J C P should be
revised o r some new version drafted during the negotiations under
Article 5 of the Special Agreement in order to comply with the moda-
lities which 1 have set out above.
33. (Reassessment of the environmental effect). Whilst the whole

Project of the GabCikovo-Nagymaros System of Locks is now in opera-
tion, in its modified form (that is, with the Cunovo dam instead of the
Dunakiliti dam diverting the water to the bypass canal and with the
abandonment of the work on the Nagymaros damlpower 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 environ-
mental protection, to preserve the environment in the region of the river
Danube.
The Parties should continue the environmental assessment of the whole
region and search out remedies of a technical nature that could prevent
the environmental damage which might be caused by the new Project.
34. (Reparation.) The issues on which the Parties should negotiate in

accordance with Article 5 of the Special Agreement are only related to
the details of the reparation t o be made by Hungary to Slovakia on
account of its having breached the 1977 Treaty and its failure to execute
the GabCikovo Project and the Nagymaros Project. The legal conse-
quences of these treaty violations are different in nature, depending on
whether they relate to one o r other separate part of the original Project.
Hungary incurred responsibility to Czechoslovakia (later, Slovakia) on
account of its suspension of the GabCikovo Projectand for the work car-
ried out solely by Czechoslovakia to construct the Cunovo dam. In addi-
tion, Czechoslovakia is entitled to claim from Hungary the costs which it
incurred during the construction of the Dunakiliti dam, which subse-
quently became redundant (see paras. 17 and 18 above).
With regard to the abandonment by Hungary of the Nagymaros dam,

Hungary is not, in principle, required to pay any reparation to Slovakia
as its action did not affect any essential interest of Slovakia (see para. 19
above). There is one point which should not be overlooked, that is, as the
Nagymaros dam and power plant are, as Slovakia admits, n o longer a
part of the whole Project, the construction of the bypass canal from
Cunovo would be mostly for the benefit of Slovakia and would provide
n o benefit to Hungary.
The main benefits of the whole Project now accrue to Slovakia, with
the exception of the flood prevention measures and the improved facili-
ties for international navigation, which are enjoyed by both States. This
should be taken into account when assessing the reparation t o be paid as
a whole by Hungary to Slovakia.
In view of the statements 1 have made above, it is my firm belief that

the modalities of the reparation to be paid by Hungary to Slovakia
should be determined during the course of the negotiations to be held
between the two States.
(Signrd) Shigeru ODA.

DISSENTINC OPINION O F J U D G E RANJEVA
[TranslationJ
1 find it difficult to subscribe to the conclusion in the Judgment that:

"Czechoslovakia w,as entitled to proceed, in November 1991, to the 'pro-
visional solution"' and "Czechoslovakia was not entitled to put into
operation, from October 1992, this 'provisional solution' " (para. 155 (1) (B)
and (C)).
From the point of view of logic, these two propositions, even sepa-
rated, are incompaitible. The construction of public works has as its ulti-
mate purpose their operation. How then is it possible to reconcile the
lawfulness of constructing Variant C with the unlawfulness of putting it
into o ~ e r a t i o n ?
~ e 1&cannot subscribe to the analysis by the majority of the Members
of the Court on the true role of the wrong done by Hungary, which is the
subject-matter of the first paragraph of the dispositif, in the chain of
intersecting wrongs to which the Court has, rightly, drawn attention in
paragraph 150 of ii:s reasoning.
The unlawfulness of the Hungarian decision to suspend, then abandon,
the works may not, in law, be called in question. Hungary has not fully
performed its obligations under the Budapest Treaty. Furthermore, the
chronology of events is unfavourable to the Hungarian cause. However,
the situation in fact and in law is not as simple as it appears on reading
the Court's analysi,~of it.
By favouring the chronological option in considering the facts, the
majority of the Court seems to give too simple an analysis of the
sequence of events. The structure of the questions set out in Article 2 of
the Special Agreement has not helped the Court in its task by disinclining
it to attach any importance to the legal effects of the intersecting wrongs
which form the cornerstone of the dispute that it had to decide.
The dual purpose of the Court's task under the terms of Article 2 of
the Special Agreement is the subject of an excellent analysis in para-
graphs 130 and 131 of the present Judgment. My disagreement, though,
relates to the place of the intersecting wrongs which, in the eyes of the
majority of the Members of the Court, is pertinent only to the prescrip-
tive part of the J~udgment,whereas in my opinion it constitutes the
cornerstone of the declaratory part.
The question which the Court could, or even should, have asked itself
is whether in the absence of Hungary's first act of unlawfulness in 1989,
the subsequent wrongs would have occurred and in particular whether
the decision to abandon the works would have been taken in November
GABCIKOVO-NAGYMAROS PROJECT (DISS.OP. RANJEVA) 171
1991. That question, a hypothetical one, should have been raised, in so

far as at n o point does the Court consider the point of determining
whether the Hunga.rian wrong caused a sufficiently proven risk which
forced the Czech and Slovak Federal Republic to repair the damage by
the construction arid putting into operation of Variant C - an issue
which should have led the Court to sav whether one of the wrones could
have been absorbed by another, so th& the subsequent course oflwrong-
ful acts had onlv one true cause.
That hypothetical question should have been asked in liminr given
the risk of confusion built into the structure of Article 2, paragraph 1, of
the Special Agreement. Because of the classification of the facts rele-
vant to the case into two blocks of questions ( a ) and ( h ) , combined
with the Hungarian decision of 1989 being taken as the starting-
point for the sequence of events, a bilaterally comprehensive approach
to the issues was encouraged to the detriment of a n overall vision
of the relationshils between the two Parties, since the bilaterally
comprehensive view produced the illusion of a quasi-mechanistic
relationship between their respective conduct. Such an analysis would
have been well fouinded if the blocks ( u ) and (6) of facts described in
the question were on the one hand isolated and on the other hand
instantaneous in effect. Points ( a ) and ( h ) describe, within a n overall
set of facts, the different acts which are imputable, respectively and
on different dates, to Hungary and to the Czech and Slovak Federal
Republic. That binary classification does not relate the sequence of
events.
In the present case, an analysis of the facts cannot be undertaken with-
out reference to the unbroken Stream of acts and conduct of a n ambigu-
ous nature that developed. The Project gives the impression of having
been, uh initio. the victim of a number of incidents and dogged by bad
luck. Thus, as the C'ourt acknowledges, each of the Parties has committed
distinct wrongs. However, contrary to the observation of the majority of
the Court, 1 consider that each wrong played the role of catalyst for the
other. This is not a case of a single wrong committed at the same time by
the two Parties, nor of two successive wrongs, but of distinct wrongs
which together led to the existence of the situation currently before the
Court. Each Party contributed to creating a wrong which progressively
helped to cause the situation which is the subject-matter of the present
dispute in its entirety. It was necessary to put the interwoven nature of
the conduct and the wrongs in that light since, given the dual task of the
Court under Article 2 of the Special Agreement, the reciprocal nature of
the wrongs raises the problem of causality in the present dispute as a
whole.
The general scheme of this Judgment is based on the idea that the
Hungarian wrong iij the causa prima in law of the dispute. However, con-
trary to my opinion, the majority of the Members of the Court sees its
scope as limited sallely to the obligation of reparation: the intersecting
nature of the wrongs enables the Court to recommend "the zero option"
as far as reparation of the damage is concerned, as it emerges from
operative paragraph 2 D in the terms the Court has chosen'.
With al1 the respect 1 have for the Court, 1 d o not believe that the obli-
gation of reparation is the only area on which the intersecting nature of
the wrongs has had a bearing. The concept of violation of a norm, by the
commission of unlawful acts, is meaningless in absolute terms; it is only
meaningful in relation to the rights of each Party under the 1977 Treaty
and to the discretionary power of subjective characterization by a party
itself which is ascribed to it in law. The idea of violation thus enables
each party to infer the consequences from a course of conduct which it
has characterized as unlawful beforehand, in a discretionary manner.
These consideratioris lead on the one hand to consideration of the con-
sequences of the Hungarian wrong (para. 155 (1) (A)) for the sequence of
events and on the other hand to criticism of paragraph 155 (1) (B) of the
present Judgment.
N o peremptory conclusion can be formulated as to the sequence of
facts which make up the conduct of each Party. The concept of original
cause may only be established, in the present case, on two conditions:
first, that of its appearance ex nihilo in the chain of events and, second,
that of its effectiveiness as far as the actual "
eenesis of the events is con-
cerned. In order to satisfy these requirements, it would have been neces-
sary for the wrong committed by Hungary to have borne no relation
whatsoever to any conduct on the part of Czechoslovakia. But, in the
present case, given the chaotic nature of the relations between the two
Parties in dispute, it is difficult to seek to introduce a more o r less un-
differentiated mechanistic analysis into this discussion. Contrary to the
requirements inherent in the law of liability in domestic law, the case is
not about finding at al1 costs who is liable, nor about making a finding of
unlawfulness per sr which is not the cause of the sequence of respective
actions of the Parties. Evidence of unlawfulness is not sufficient to estab-
lish a link of direct causality between the Hungarian conduct and the
Czechoslovak reaction.
The his~oricalarid technical details show that projects for regulating
the Danube in that portion of the river's course had been envisaged since
the end of the Second World War. In the framework of such programmes
of CO-operation, each party was pursuing objectives which were not
necessarily the sarne of those of its partner. Thus the Czech and Slovak
Federal Republic expressed a particular interest in hydroelectricity and
' The zero option is linked to a certain interpretation of the rule of Pomponius accord-
ing to which "Quod si quis ex culpa sua sentit. non intelligitur damnum sentire" (Digest.
"De regulu juris". 50. 17). In other words, a claimant is deprived of his right to reparation if
he can be accused of wrongdoing, whether o r not it is the cause of the loss he has suffered.
The proposition of Pomponjus was ruled out by canon law as individualization of liability
for fault gradually developed and mechanisms for presuming liability weakened.
G A B C ~ K ~ V O - N A G Y M A R OPROJECT
S (DISS.OP. RANJEVA) 173
in navigation. The Nagymaros works were designed to be put into opera-

tion when the installations at GabCikovo were operating in peak-load
time. And it is apparent from the various earlier projects that, for many
a year, the possibility of constructing the works on Czechoslovak terri-
tory alone had not been ruled out. Those details, relating to the context
of both the Project and the present dispute, explain what was at stake,
without however constituting a justification of the Hungarian decision.
From the legal point of view, the conclusion of the Budapest Treaty
renders these discussions nugatory. The only certainty stems from the
fact that the Hungarian decision to suspend took shape in an atmosphere
of much suspicion and mistrust and was a well-premeditated act.
In my opinion, the Hungarian decision did not constitute the cause,

but the ground or inotive taken into consideration by the Czech and Slo-
vak Federal Republic in order to justify its subsequent conduct. Can it
for al1 that, in law, be considered as being the source from which the sub-
sequent wrongs came into being'? A reply to that question must take into
account the strategy of raising the stakes in the context of the pressure1
negotiations game. First of all, the factual chronology is unfavourable to
Hungary if one corisiders the sequence of events in terms of linear succes-
sion. However, wi1.h the passage of time, the links of causality with the
initial wrong fade and weaken whereas the conduct of each side escalates
more and more. Thus, in the present case, there was reason to determine
the causal nature of the unlawfulness inherent in the Hungarian conduct
described in paragraph 1 A of the clispositif If we consider the question
which forms the subject-matter of the second paragraph in terms of the
relations between the two Parties, it is the facts and wrongs seen as a
whole that should be taken into consideration; it is therefore difficult, in
the absence of a presumption of responsibility, t o consider the unlawful-
ness of the commiijsioning of Variant C as the direct consequence of the
Hungarian decision of 1989. It seemed necessary to me however to dis-
pose of this prelimiinary question as a matter of logic; that being so, the
intersection of wrongs was the crux of the second question.
The inconsistent nature of the conclusion reached by the Court, in
operative paragraphs 1 B and 1 C (para. 155), shows, if it needs dem-
onstrating, the artificial nature of the distinction between "proceeding to
the provisional solution" and its "putting it into operation". This distinc-
tion might be justified if the theory of approximate application or that of
damage limitation were based on treaty law. The Court rightly rejected
the arguments based on these principles, which may find their place in
constructs of domestic law within a system of presumption of liability.
Once, though, l.he Court has accepted the intersecting nature of the
wrongs committecl by the Parties, the distinction between the construc-
tion of Variant C on the one hand and putting it into operation on the
other is purely art.ificial in the context of the pressureinegotiations rela-
tionship game.
GABCIKCIVO-NAGYMAROS PROJECT (DISS.OP. RANJEVA) 174
The divisibility of Czechoslovakia's conduct according to the Judg-

ment is said to be based on the use in the Special Agreement of the copu-
lative conjunction "and" in order to express the link between the two
stages of process omf accomplishment of its decision. However, the link
ensured by the conjunction, from a grammatical point of view, is char-
acterized by the fact that the elements of the process are of the same
nature, and also bli the immediacy of their succession. In those circum-
stances, contrary to what the majority of the Court presumes, and the
consistent attitude of Czechoslovakia bears this out. there has never
been, in its plans, any question of not putting variant' C into operation
once the decision to proceed to it had been taken. A continuing act seems
the most relevant characterization, both as regards the general sequence
of events (see above) and the overt behaviour of Czechoslovakia and then
of Slovakia.
For in order that the distinction made in the Judgment be founded,
there must actually exist in advance an equipollence between "proceeding
to the provisional solution" and "putting it into operation". That is in
order t o avoid one of the elements being absorbed by the other. How-
ever, the Czechoslovak decision is neither meaningful nor significant
unless the subsequent course of events leads to a single result : the putting
into operation of Variant C, the so-called "provisional solution".
On consideratioin, and contrary to the analysis in the Judgment, the
unlawfulness of Cz:echoslovakia's conduct cannot be limited to the mere
putting into operation of the "provisional solution" because of the status
of the Danube in international law. 1 cannot subscribe to the idea that
territorial sovereignty confers on a State the faculty of altering unilater-
ally the use of a n international watercourse whose legal régime has
formed the subject-matter of a n international treaty. In these circum-
stances, it is not the construction o r the non-construction of works on the
territory of one or the other Party per .Fe nor solely the diversion of the
course of the Danube which constitute the only breaches of the obliga-
tions under the 19'77 Treaty. The fact of substituting and implementing a
national project in place of a joint international project is a serious con-
travention of the provisions of the Treaty of Budapest. Limiting the sanc-
tion for unlawfulness to the factual consequences of the breach of inter-
national obligations but not to the breach itself represents "a precedent
with distiirbing im.plications for treaty relations and the integrity of the
rule puctu sunt srriiandu" (see Judgment, para. 1 14). These considerations
explain the validit:y of the proposition in Article 25, paragraph 1, of the
International Law Commission Draft Articles on State Responsibility,
on unlawfulness of a continuing character:
"The breach of an international obligation by a n act of the State

having a continuing character occurs at the moment when that act
begins. Nevertheless, the time of commission of the breach extends
over the entire period during which the act continues and remains
not in conformity with the international obligation."
In the final analysis, how can one justify the unlawfulness of Variant C
solely in terms of its being put into operation, when there is no legal
foundation in the 1977 Treatv for this solution. in the o ~ i n i o nof the
Judgment, once the Court ha; dismissed the arguments of'approximate
application and obligation to limit damage, as well as the proportionality
between the wrong committed by Hungary and the commissioning of
Variant C'?
(Signed) Raymond RANJEVA.

DISSENTING OPINION OF JUDGE HERCZEGH
1 am most regretfully unable to share the position of the majority of

Members of the Court as expressed in this Judgment, and 1 find myself
obliged to draft a dissenting opinion to set out the facts and reasons
which explain the dlifferent conclusions 1 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 (hereiriafter called "the GIN 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 Buda-
pest on 16 September 1977,
"the joint utilization of the Hungarian-Czechoslovak section of the
Danube will . . . significantly contribute to bringing about the social-
ist integration of the States members of the Council for Mutual Eco-
nomic 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 environ-
ment, and with questions concerning the international responsibility of
States.
In its Advisory Opinion given to the General Assembly on 8 July 1996
on the Lclgality oj' the Threur or Use of Nuclear Weapons, the Court
declared that it recognized
"that the environment is not an abstraction but represents the living
space, the quality of life and the very health of human beings,
including gencrations unborn. The existence of the general obliga-
tion of States to ensure that activities within their jurisdiction and
control respect the environment of other States or of areas beyond
national control is now part of the corpus of international law relat-
ing to the environment." (1.C.J. Reports 1996, pp. 241-242, para. 29.)
This Judgment of the Court cites that passage and stresses the impor-
tance of respecting the environment, but then does not take due account
of the application of that principle to the construction and operation of
the GIN Project.
The Court only grants a very modest place to ecological considerations
GAHCIKOVO-NAGYMAROS PROJECT (DISS.OP. HERCZEGH) 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 s o on, or questions of a technical type which
arose out of the GIN Project; but it could - and even should - have
ruled on the legal consequences of certain facts alleged by one Party and
either admitted o r 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 GIN
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 hydro1:lectric resources of the Danube. The locks built on
the German and Austrian sections of the Danube d o 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 unknowri to those responsible for drawing up the plans for the
GIN Project, but its designers reasoned within the confines of what was
known in the 1960s and 1970s - and that way of thinking is today con-
sidered outmoded, and rightly so. They accordingly minimized the risks,
whilst at the same time having an imperfect understanding of the damage
they could cause, and therefore of the possible solutions. T o give just one
example, the fact thiat the Joint Contractual Plan only provided for a dis-
charge of 50 cubic metres per second in the old channel of the Danube
during the months of March to November shows clearly that the most
basic ecological considerations were not accorded the weight they
deserved. The original Project was criticized not only by the Hungarian
Party, but also by the Czechoslovak leaders. Paragraph 38 of the Judg-
ment quotes the C:zechoslovak President, Mr. Havel, as saying that the
GIN Project was a "totalitarian, gigomaniac monument which is against
nature" (Counter-Fdemorial of Hungary, Vol. 3, Ann. 88), together with
part of a statement made by the Czechoslovak Minister for the Environ-
ment, Mr. Vavrouliek, for whom "the GIN Project was an old, obsolete
one", and who weint on to say that "there is n o doubt that if we could
turn the course of time, we would never approve the original project . . ."
but that even though there were "many reasons to change, modify the
Treaty . . . it [was] not acceptable to cancel the Treaty . . . and negotiate
later on" (Mernorial of Slovakia, Vol. IV, Ann. 97, pp. 248-249).
Given the declarations of the Czechoslovak leaders, it is somewhat

surprising that the Court adopted the approach that the ecological risks
listed by Hungary in 1989 were already known when the Treaty was con-
cluded but remained uncertain, and the provisions of Articles 15, 19 and
20 covered the protection of the natural environment, water quality, and
GABCIKOVO-NAGYMAROS PROJECT (DISS.OP. HERCZEGH) 178
so forth, whereas it could and should have concerned itself with the prob-
lems 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 Fvlinister, Mr. VavrouSek, would have considered the
GIN Project contairied in the 1977 Treaty to be "old", of a n "obsolete"
character, and neediing to be "changed" or "modified", and so on. More-
over, the key question is not whether the Treaty contained certain pro-
visions protecting the environment, but whether those provisions had
been effectively implemented during the construction of the GIN 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 o f t h e Continued Presence
?/'South Ajiica in ,Yumihia (South West Africa) notivith.standing Secu-
rity Council Resolurion 276 (1970), the Court found that:
"Moreover, a n international instrument has to be interpreted and

applied within the framework of the entire legal system prevailing a t
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 gen-
tium has been c:onsiderably enriched, and this the Court, if it is faith-
fully to discharge its functions, may not ignore." (Z.C.J. Reports
1971, pp. 31-32, para. 53.)
What held good for the Mandate system of the League of Nations also
holds good for the duty to safeguard the natural environment, the only
difference being that instead of a 50-year period, we have to look at a
20-year period in this case. Under Article 19 of the 1977 Treaty,
"The Contracting Parties shall, through the means specified in the

joint contractu.al 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 "obliga-
tions", the word "requirements", but that does not in any way affect its
essential scope: the protection of nature was to be ensured in a manner
commensurate with the requirements of the day, that is to Say, in 1989, in
accordance with the requirements of 1989, and not those that might have
prevailed in 1977. Likewise, and in so far as it is accepted, as it is by the
majority of the Members of the Court, that the Treaty still applies as it
stands, the same would hold good for 1997, and it is in accordance with
present-day requireiments that the scope of the Parties' treaty obligations
with regard to prot,tction 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 rriankind - for present and future generations of
-
pursuit of such interventions at a n unconsidered and unabated pace,

new norms and standards have been developed, set forth in a great
number of instruments during the last two decades. Such new norms
have to be taken into consideration, and such new standards given
proper weight, not only when States contemplate new activities but
also when continuing with activities begun in the past." (Para. 140.)
It is regrettable that the Court did not follow this principle even in the
reasoning which led to its reply to the first question put to it in the
Special Agreement.
T o have perceived the shortcomings of a project - to avoid using the
word "error" - anid to recognize that one is the source of those short-
comings 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 tlhe GIN Project, was based on the fact that the Project
was almost compleied. By the acceleration of the works laid down in the
Protocol of 6 Febr~iary1989, certain Hungarian leaders wanted to d o the
same thing -- to claim that a point of no return had been reached - in
order to deal with increasing opposition and resistance. Political changes
during that year prevented them from achieving that aim.
The crucial probllem posed by the GIN Project was that of peak mode
operation, for which the 1977 Treaty makes no provision. Slovakia con-
firmed repeatedly that there was no agreement between the contracting
parties with regard to the peak mode operation of the system of locks. It
maintained that the operational rules relating to peak mode operation
had still not been established at the start of 1989, and that without the
agreement and CO-operation of the parties n o plan to operate in peak
mode could be implemented. In its Reply (Vol. II, pp. 8-9), Slovakia
states "the Gabëikovo plant would have operated a t a level of maximum
peak mode operation that was never agreed between the Treaty parties"
and "Czechoslovakia offered its pledge to limit o r exclude [that mode of
operation] in October 1989 ifjustijied by suhsequent studies" (emphasis
added). A few lines further on, it reaffirms that:
"no agreed n-iethod o r level of peak mode operation had been

reached prior 1.0 1989 . . . The focus on peak mode operation here is
therefore misplaced, for it assumes a mode of operation that was
neither agreed nor certain to be adopted in any form." (Ihid, p. 9.)
It is the Joint Contractual Plan which describes peak mode operation,
thus demonstrating that the 1977 Treaty and the Joint Contractual Plan
d o not have the same legal character since Slovakia would not otherwise
have denied the existence of an agreement as to mode of operation.
It is true that the Preamble to the Special Agreement mentions the
Treaty on the Construction and Operation of the GabCikovo-Nagymaros
Barrage System and related instruments ("the Treaty") but, despite the
linking of the "related instruments" to the term treaty, it is absolutely
incorrect to conclude that al1 those instruments - including the Joint
Contractual Plan -- are of the same nature and carry the same legal
weight as the Treat:y itself.
Moreover, the S,pecial Agreement does not define the concept of
"related instrument:;" at al1 and a list of the instruments was not appended
to the Special Agreement o r to the other documents lodged at the Court
by the Parties, for the simple reason that they disagreed as to the material
content of that exr)ression. The references made bv the Parties to the
"related instruments", both in the written proceedings and in the hear-
ings, were vague, ambiguous and often contradictory. Since the file sub-
mitted to the Court was insufficient to clarify what was meant by that
expression, the Court should have avoided using it in its reasoning and
especially in the operative part. Unfortunately, it did not follow this
course, and this was detrimental to the necessary precision of its Judg-
ment.
T o return to the problem posed by the mode of operation of the system
of locks, the above statements by the Slovak party show, moreover, that
Czechoslovakia itself had certain doubts and certain reservations about
the peak mode of operation. However, Slovakia emphasized during the
hearings that the Parties had to resolve the problem of defining "the
modalities of (and limitations to) the production of electricity in peak
mode" (CR 9711 5 , p. 50, Pellet), yet without specifying the treaty basis of
such a claim.
In any event there was an obvious contradiction between a project

designed for peak mode operation and the absence of a n agreement
between the parties as to this mode of operation. The Court did not
attempt to resolve that contradiction, but was unable to remain entirely
silent as to the doubts it had regarding that mode of operation. In para-
graph 134 of the Judgment, the Court concluded that there had been a n
"effective discardini; by both Parties of peak power operation" (emphasis
added). In paragraph 138, it states that Czechoslovakia "was willing to
consider a limitation o r even exclusion of operation" in peak power
mode.
Between 1977 and 1989 Hungarian experts became aware of the eco-
logical dangers potentially caused not only by the peak mode operation
of the system of locks, but also by the construction of certain works of
the system which ha.d been designed with a view to such a mode of opera-
tion: more particularly the Nagymaros dam and the storage reservoir at
GARCIKOVO-NAGYMAROS PROJECT (DISS.OP. HERCZEGH) 181
Dunakiliti as initially designed, that is, with an enormous surface area of

60 square kilometre!;, neither construction being indispensable or even of
use if the GabEikovo power plant were to be operated in run-of-the-river
mode. Slovakia recclgnizes that the Nagymaros dam was intended, "first,
to compensate fluctiiating water levels caused by peak operation of Gab-
Eikovo" (Memorial of Slovakia, para. 2.51), that "One of the functions of
the Nagymaros section was to utilize the Danube waters so as to permit
peak power production at GabEikovo" (ibid., para. 7.13) or, to reiterate
the words used by the agent of Slovakia during the hearings, that "to
produce peak power electricity at GabEikovo required the existence of
the Nagymaros weir" (CR 9717, p. 15, Tomka).
It is therefore difficult to understand why Czechoslovakia insisted with

some vigour that Hungary had to continue with the construction of the
Nagymaros dam - when its primary purpose was to allow peak mode
operation of the GabEikovo 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
GIN Project from being modified for adaptation to a less dangerous
mode of operation. Slovakia, for its part, has repeatedly stated that
"The 1977 Treaty and the international agreements linked to it

were highly flexible . . . there were continuing studies of problems
emerging during construction, which led to modifications related,
inter ulia, to the environment and water quality." (CR9717, p. 14,
Tomka.)
In that case, the danger which the construction of the Nagymaros dam
posed for Budapest"~drinking water supply - a point 1 shall return to
later - was a sufficient ground for amending the 1977 Treaty and
the international agreements linked to it, as Hungary suggested in its
Note Verbale dated 3 November 1989 (Memorial of Hungary, Vol. 4,
Ann. 29).
Before replying to the question "whether the Republic of Hungary was
entitled to suspend and subsequently abandon, in 1989, the works on the
Nagymaros Project and on the part of the GabCikovo Project" for which
it was responsible, it should be noted that that question covers several
actions taken by the Hungarian Government which must be assessed
individually. Those actions are the following:
- in May 1989, the suspension of work on the Nagymaros dam;
- in July 1989, the suspension of work at Dunakiliti;
- in October 1989.,the abandonment of work at Nagymaros.
At the same time, it should be noted that, towards the end of 1991,
Hungary carried on, with and even completed the work relating to the
GABC~KOVO-NAGYMAROS
PROJECT (DISS.OP. HERCZEGH) 182
downstream section of the bypass canal, on Czechoslovakian territory,

between GabEikovo and Szap, for which it was responsible under Ar-
ticle 5, paragraph 5 ( b ) (4), of the 1977 Treaty, and that it did so because
it did not consider that part of the GIN Project to threaten the environ-
ment. That is symptomatic of its attitude towards the 1977 Treaty. The
allegation that Hungary repudiated or rejected the 1977 Treaty as such in
1989 or in 1990 is therefore groundless.
In order to justify its conduct, Hungary put forward various grounds
and these included, inter d i a , 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 obliga,tions.
Article 33, paragraph 1, of the Draft of the International Law Com-
mission on the International Responsibility of States, considered as
expressing the rules of customary international law and cited by the
Court in its Judgment, stipulates the following:
" 1 . A state of necessity may not be invoked by a State as a
ground for precluding the wrongfulness of an act of that State not in
conformity with an international obligation of the State unless:
( a ) the act was the only means of safeguarding an essential interest
of the State against a grave and imminent peril; and
( b ) the act ditl not seriously impair an essential interest of the State
towards vlihich the obligation existed."
The state of necessity is "the situation of a State" - according to the
International Law iCommission Report -
"whose sole means of safeguarding an essential interest threatened
by a grave and imminent peril is to adopt conduct not in conformity
with what is required of it by an international obligation to another
State" (Yoarbook qf the Ii~terizutional Law Commission, 1980,
Vol. II, Part 2, p. 34, para. 1 ).
The "deliberate nature of the conduct, the intentional aspect of its failure
to conform with the international obligation" - according to the
Report -
"are not only undeniable but in some sense logically inherent in the
justification alleged; invoking a state of necessity implies perfect
awareness of having deliberately chosen to act in a manner not in
conformity wilth an international obligation" (ihid., p. 34, para. 3).
State of necessity is a very narrow concept in general international law.

In the course of th,e International Law Commission's work on the codi-
fication of State responsibility, the great majority of its members were of
the view "that any possibility of the notion of state of necessity being
applied where it is really dangerous must certainly be prevented, but
that this should noi: be so in cases where it is and will continue to be [a]
useful . . ." "The icnperative need for compliance with the law must not
be allowed to result in situations so aptly characterized by the maxim
summum jus summa injuria" ( Yearbook of the International Larv Com-
mission, 1980, Vol. I I , Part 2, p. 49, para. 31). Thus the International
Law Commission, expressing a n almost general approach and convic-
tion, stressed that the situation had to involve a n "essential" interest of
the State in question. That "essential" character naturally depends upon
the circumstances in which a State finds itself, which cannot be defined
beforehand, in the abstract. The peril threatening the essential interest
must be extremely grave and imminent, and it must have been avertable
only by means coniflicting with a n international obligation. In a state of
necessity, there is a
"grave danger to the existence of the State itself, to its political o r
economic surviival, the maintenance of conditions in which its essen-
tial services can function, the keeping of its interna1 peace, the sur-
vival of part of its population, the ecological preservation of al1 o r
some of its territory . . ." (ihid., p. 35, para. 3).
Invoking a state of necessity is not a way to terminate treaty obliga-

tions lawfully, that is, to terminate an international treaty. However, the
party in question will be released from the consequences of the violation
of international law, since it acted in a state of necessity. The state of
necessity is a circunlstance which exonerates from responsibility: in other
words, it exoneratr:s the author of the unlawful act from that interna-
tional responsibilit:y. Hence the problem has not been resolved - and
cannot be resolved - by the law of treaties, but pertains to the provi-
sions of the international law of State responsibility.
The question is itherefore whether the criteria for a state of necessity
are fulfilled in relation to the construction of the Nagymaros d a m ? It
should be noted in this context that more than 500 bank-filtered wells
which satisfy about two-thirds of Budapest's drinking water requirements
are situated on the island of Szentendre, downstream of Nagymaros. The
water from those wells is fit for consumption without any purification
procedure being necessary. The provision of drinking wuter for the Hun-
gariun capital - which has two million inhabitants (that is, one-fifth of
the country's population) , qllulitu~ivelyand quuntitutively, certtrinly
constitutes an essential interest for Hungary. Hungary had to protect the
branches of the Danube, on either side of the island, against any erosion
endangering the production of drinking water from those wells.
The dredging of the bed of the Danube in the two branches around the
island of Szentendre - as laid down by Article 1, paragraph 3 ( c ) , of the
1977 Treaty - had already caused serious damage. After the water
services of the Hungarian capital had raised the alarm, those works
CABCIKOVO-NAGYMAROS PROJECT (DISS. OP. HERCZEGH) 184
were not only suspended, but abandoned in 1980, resulting in a natural

improvement of thle state of the river bed. Since the construction of
the Nagymaros dam would have had the same harmful effects down-
stream as those of the dredging, and in particular the erosion of the river
bed, that construction constituted a grave peril.
The expression "grave peril" refers to the existence of a strong like-
lihood that detrimcntal effects and very extensive damage will occur. It
is true that the daniage in connection with Nagymaros would not occur
overnight, but after a lapse of time. The Judgment cites the International
Law Commission's commentary to the effect that the "extremely grave
and imminent" peril must "have been a threat to the interest at the actual
time". That does not rule out, the Court adds,
"that a 'peril' appearing in the long term might be held to be 'immi-
nent' as soon as it is established, at the relevant point in time, that
the realization of that peril, however far off it might be, is not
thereby any l e s certain and inevitable" (para. 54).
Unfortunately, the Court has not drawn the obvious conclusion from
that definition as far as the construction of the Nagymaros dam is con-
cerned. There could be no doubt that the erosion of the bed of the Danube
downstream of Nagyrnaros would be the certain and inevitable conse-
quence of the dam. These were not "uncertainties", as could be claimed in
relation to other ecological consequences of the GIN Project, but certainties
as to the foreseeable effects of the construction of the dam. If the Court did
not want, in this respect, to rely solely on Hungary's arguments, it could
have used the information provided by Slovakia. According to Slovakia,
"the construction of water projects and hydropower plants upstream
in Germany arid Austria had the effect of dramatically reducing the
quantities of sediments transported downstream to the Slovak-
Hungarian section . . . dredging coupled with erosion began to exceed
the annual deposition of sediment from upstream, the Danube river
bed started to deteriorate in the region between Devin Gate and Sap
(Pa1kovii.0~0) and the erosion processes caused by 'hungry water'
commenced." (Memorial of Slovakia, para. 1.42.)
The Memorial of Sdovakia cites the Report of 2 November 1993 of the

European Commuriities Working Group of Experts that :
"The main Channel has been significantly lowered due to erosion
caused by a combination of several man-made factors:
dam constiruction in Austria in the last decades resulting in a

sediment (in particular bed load) deficit . . ." (Ibid., para. 1.57.)
The Nagymaros dam could only have had the same effects, down-
stream, on the bed of the Danube, as the dams built in Austria had had
on the sector of the Slovak capital: the erosion of the river bed. As a
result of such erosion, the production of drinking water from the bank-
filtered wells on the banks of the island of Szentendre could only dimin-
ish, and the quality deteriorate. Certus un incertus yuundo. It was impos-
sible to predict exactly that that diminution would amount to such-and-
such a percentage of the former production of those wells, and whether it
would occur over five o r ten years, but it was certain that the quantity of
water would diminish and its quality deteriorate in the relatively near
future.
The imminence of the peril in question depended on the construction
of the Nagymaros clam: without the dam, there would be no grave peril,
either imminent o r long-term; once the dam had been constructed, it
would no longer have been appropriate to speak of a peril, but rather of
grave and permanent damage occurring for so long as the dam existed -
a dam built by the very State whose population and territory would have
been its victims. T o claim that the suspension of works on the Nagy-
maros dam was not justified by a state of necessity, since the peril was not
imminent, means in reality that Hungary should have completed the dam
and waited for the bank-filtered wells on the island of Szentendre to dry
out because of the erosion of the river bed and for the supply of drinking
water to the Hungarian capital to be called critically into question. The
Court, in deciding the case, ought to have taken account of the damage
that would have occurred if the Partv in auestion had not taken the
necessary preventive measures. States are under a n obligation of preven-
tion and not merely of reparation.
Slovakia did not deny that the effectiveness of the wells would be
reduced, but it claimed that they would not be entirely lost and suggested
measures designed to deal with such a situation, but without taking
account of the cost of such measures (see Slovakia's reply, dated 7 May
1997, to the question asked by the Vice-President (CR97115, p. 64).
Indeed, the surface waters could have been purified and rendered fit for
human consumptioin; however, that would have been enormously expen-
sive in view of the reauirements of a citv of two million inhabitants. The
other solution proposed, namely the discharging of large quantities
of gravel into the river bed, did not seem very realistic: both branches of
the Danube arourid the island of Szentendre, taken together, are
1,000 metres wide and 70 kilometres long. How much gravel would there-
fore have been necessary to counteract the erosion of the river bed caused
by the Nagymaros d a m ? The third solution raised, the construction of a
second dam downstream of Budapest, would have cost n o less and, in the
end, a third dam would have been needed, at Paks o r at Mohacs, not to
mention the potential consequences of such a series of dams on the
Yugoslav sector of the Danube. In theory, al1 three solutions were pos-
sible - the argument of impossibility does not stand up - but the imple-
mentation of these measures would have radically transformed the scope
of Hungary's remaining obligations under the Treaty. Such a solution
denotes a fundamental change of circumstances which may be relied
GABCIKOVO-NAGYMAROS PROJECT (DISS. OP. HERCZEGH) 186
upon as a ground for terminating the Treaty, as prescribed in Article 62,

paragraph 1 ( b ) , of' the 1969 Vienna Convention on the Law of Treaties.
The Court expressed itself as follows in its Judgment of 2 February 1973
in the case concernirlg Fisheries Jurisdiction (United Kingdom v. Iceland) :
"Internationial law admits that a fundamental change in the cir-

cumstances which determined the parties to accept a treaty, if it has
resulted in a ra.dical transformation of the extent of the obligations
imposed by it, may, under certain conditions, afford the party
affected a ground for invoking the termination o r suspension of the
treaty." (I.C.J. Reports 1973, p. 18, para. 36.)
Instead of taking: into consideration the consequence of the changes
thus operated on the scope of Hungary's remaining obligations under the
Treaty, the Court, in this Judgment, merely States that "the purification
of the river water, like the other measures envisaged, clearly would have
been a more costly ]technique" (para. 55). The costs of discharging grave1
into the river and those of constructing a second dam were not given
serious consideration. anv more than was the radical transformation of
the scope of the obligations assumed.
As far as a fundamental change in circumstances is concerned, it
should be noted that he who can d o the most can d o the least. Hungary
did not rely on the Treaty having lapsed o r on the suspension of the
Treaty as such, but it did suspend performance of one of its obligations
- the construction of the Nagymaros dam - on the basis of a state of
necessity, a ground for setting aside unlawfulness resulting from the fail-
ure to implement a treaty provision. In this case, it was a matter of safe-
guarding an essential interest against a peril which was grave and immi-
nent - that is, ceritain and inevitable. The taking of other measures to
counteract that grave peril would have radically transformed the scope of
the obligations to be performed by Hungary under the Treaty.
Since the Court lhas not adopted a position on the question whether
the suspension and abandonment of the construction at Nagymaros
impaired an essential interest of the other Party, 1 shall merely observe
that the GabCikovo power plant operates normally today, as a run-of-
the-river power station, without a dam at Nagymaros, where the Danube
flows naturally in its bed. Boats use the bypass canal, so that navigation
has not been affected, and there is no danger of flooding which could
have been caused by the present state of the works. Accordingly, the sus-
pension and subsequent abandonment of the construction works has not
impaired a n essenti.al interest of the other contracting party.
However, the Court finds as follows:
"even if it had been established that there was, in 1989, a state of
necessity linked to the performance of the 1977 Treaty, Hungary
would not have been permitted to rely upon that state of necessity in
order to justify its failure to comply with its treaty obligations, as it

had helped, by act or omission to bring it about" (para. 57).
That is a surprising conclusion, implying that Hungary should have
finished the construction of the Nagymaros dam, which in reality would
have helped to aggravate the state of necessity already existing as a result
of the start of the v~orks,by causing irreparable damage to the drinking
water supply to its capital city. In that case, it would have had only itself
to blame, since it a.lone would have been the cause of the catastrophic
situation that woultl have ensued.
The suspension of the works at Dunakiliti is to be seen in a somewhat
different context. The suspension of those works was intended to safe-
guard an essential interest of Hungary, that is, principally the protection
of the aquifer situated below the Szigetkoz and the surrounding area. The
risk of damage to the aquifer arose from the size of the storage reservoir
at Dunakiliti (oversized were Gabtikovo to be operated as a run-of-the-
river power station) and from the polluting effect of its stagnant waters.
The national repori. of the Czech and Slovak Republic to the Rio Con-
ference showed thai. Gabëikovo constituted a threat to the environment:
"Example of disturbance of the unique water and rural ecological
systenls due to large water works are the reservoirs in Nové Mlyny
in Czech Republic and the Gabtikovo water works on the Danube
river in the Slovak Republic. In the first example the mead forest
with its unique flora and fauna were seriously damaged, in the
second ex am pl^:, the huge and unique volume of underground water
is threatened and the systems of mead forests and river tributaries are
drastically affected." (P. 92.) (See file of documents relating to the
second round of oral arguments of Hungary, 10-11 April 1997,
Ann. 111-5.)
The suspension of the works at Dunakiliti certainly impaired the inter-

ests of Czechoslovakia inasmuch as they related to the commissioning of
the almost complei;ed Gabëikovo power plant; the dykes which were
already constructed had to be protected, and a supply of water from the
Danube was essential in order to operate the plant even as a run-of-the-
river power station. There was therefore a conflict of interests between
the two States. Czechoslovakia could rely on the provisions of the Treaty
which the two Parties considered to be valid, whereas Hungary referred
to the ecological damage which would occur, as far as Dunakiliti -
unlike Nagymaros - was concerned, in the more distant future. How-

ever, the interests of Czechoslovakia were of a financial nature, theoreti-
cally easy to compensate, whereas those of Hungary related to the safe-
guarding of its ecological balance and the difficult and uncertain struggle
against damage to :its environment. In dubio pro nuturu.
The GIN Projec-t had other consequences for the environment, the
details of which were discussed at length by the Parties, which presented
GABCIKOVO-NAGYMAROS PROJECT (DISS.OP.HERCZEGH) 188
them in diametrically opposed ways. That detailed and conflicting pres-

entation did not ease the Court's task and made it harder for it to deter-
mine the facts not denied or challenged by one or the other of the Parties.
The Court held that the state of necessity, as a ground for precluding
the wrongfulness of a n act not in conformity with an international obli-
gation, can only be accepted on a n exceptional basis and, referring to the
relevant International Law Commission Report, added that
"the state of riecessity can only be invoked under certain strictly
defined conditlions which must be cumulatively satisfied; and the
State concerned is not the sole judge of whether those conditions
have been met" (para. 51).
1 entirely concur with that approach, but 1 cannot accept the conclu-
sions drawn in this case by the Court. It has concluded that, with respect
to both Nagymaros and Gabtikovo,
"the perils invoked by Hungary, without prejudging their possible
gravity, were not sufficiently established in 1989, nor were they
'imminent'; and . . . Hungary had available to it at that time means
of responding to these perceived perils other than the suspension and
abandonment of works with which it had been entrusted" (para. 57).
This is absolutely not the case. As far as Hungary was concerned, what
was at stake was the safeguarding of a n essential interest against a peril
which was grave and imminent, that is to Say certain and inevitable, and
any measures takeri to counteract that peril would have radically trans-
formed the scope of the obligations to be performed under the Treaty. By
suspending and abandoning the works at Nagymaros, Hungary has not
impaired an essential interest of Czechoslovakia, and it is precisely by
constructing the dam at Nagymaros that it would have contributed to
an unequalled state of necessity and to a situation catastrophic for its
capital. The existence of the peril alleged by Hungary was recognized -
at least in part- by the other Party, and Hungary therefore did not act
in a n arbitrary mariner.
The first question asked in the Special Agreement was whether the
Republic of Hungary was entitled to suspend certain works for which it
was responsible under the 1977 Treaty. The Vienna Convention on the
Law of Treaties is silent as to the state of necessity. However, interna-
tional law - and particularly the law of responsibility - recognizes it.
The state of necessity exists not only in theory, but also in reality. In the
present case, even the strictest criteria applied cumulatively prove that, as
far as the construction of the Nagymaros dam is concerned, Hungary
was entitled to rely on that ground precluding its responsibility for not
having fulfilled one of its obligations under the 1977 Treaty. It was there-
fore entitled to suspend and subsequently abandon the works at Nagy-
maros. As far as the suspension of the works at Dunakiliti is concerned,
the existence of a siate of necessity is debatable, but Hungary's anxieties
GABCIKO'IO-NAGYMAROSPROJECT (DISS.OP. HERCZEGH) 189
regarding the ecolo,gical risks occasioned by the reservoir - and partially

recognized by Czecl~oslovakiaitself - should not have been taken lightly,
and still less categorically refuted. That latter measure of suspension was
undoubtedly provisional (the installations at Dunakiliti have been main-
tained in good condition by Hungary up to the present day).Although
the circumstances prevailing on that site d o not entirely relieve Hungary
of its responsibility, they d o nonetheless provide some mitigation which
the Court should have taken into account.
The Court, whi1s.t refusing to accept that Hungary was entitled to sus-
pend and subsequently abandon, in 1989, the works on the GIN Project
relating to Nagymaros, recognizes - albeit indirectly - that Hungary's
position is well founded, when it manages to assert, in the "prescriptive"
part of its Judgmecit, that the Nagymaros dam should not be built: "with
the effective discartiing by both Parties of peak power operation, there is
no longer any poirit in building it" (para. 134); "the construction of the
Nagymaros dam would have become pointless" (para. 138). Moreover, it
must be a~knowled~ged that the ecological considerations that now weigh
against the dam are the same as those holding in 1989. If it has finally
been concluded thrit 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 coun-
tries upstream and downstream is the crucial problem of the law govern-
ing international watercourses. During the work done by the United
Nations on the Draft Convention on the Law of the Non-Navigational
Uses of International Watercourses, the upstream countries complained
that the provisions of the draft limited their right to use and develop the
resources of those watercourses, whereas the downstream countries criti-
cized the provisions of the draft by maintaining that they failed to protect
their interests adequately and even allowed significant damage to be
inflicted upon thein. As far as the course of the Danube is concerned,
Slovakia is an upstream country and Hungary a downstream country. In
this Judgment the Court should have maintained a balance, admittedly
hard to achieve, between the interests of the upstream and the down-
Stream countries, and have ensured that harmonious progress in enhance-
ment of the natural resources would be carefully organized to prevent the
long-term disadvantages from outweighing the immediate advantages.
Unfortunately, in the present case, it has not succeeded in doing so.
1 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 lairge extent determines the replies, or at least the reason-
ing, for the questions which follow.
GABCIKO~O-NAGYMAROS PROJECT (DISS.OP. HERCZEGH) 190
1 now come to the second question asked in the Special Agreement,

that is, "whether the Czech and Slovak Federal Republic was entitled to
proceed, in November 1991, to the provisional solution and to put into
operation from October 1992 this system . . .".
Since Slovakia has consistently maintained that the 1977 Treaty was
extremely flexible and essentially open-ended, the contracting parties
were entitled to propose that it be adapted to the requirements of envi-
ronmental protection - having regard to new information and experi-
ence gained - and even modified, in order that the Treaty rnight match
those requirements The abandonment of the construction of the Nagy-
maros dani, whose main function would have been to allow the use of the
Gabtikovo power plant in peak mode (a use for which there had been no
prior agreement between the parties), has not called in question the
accomplishment of the object and purpose of the Treaty.
In September 1991, Mr. Vavrouiek, the Czech Minister for the Envi-
ronment, declared to the Hungarian Parliament:
"1 believe there is the only practicable way, a traditional one, that
is being used not only in case of international treaties, but also when
new acts are adopted. It simply means to prepare a new treaty and to
incorporate into the last paragraph provisions that would cancel
obsolete parts of the 1977 Treaty." (Mernorial of Slovakia, Vol. IV,
Ann. 97, p. 24.9.)
In other words, that would have involved the conclusion of a treaty

taking the place of the old one, by modifying o r abrogating those provi-
sions that are out isf date.
Between Mr. VavrouSek's visit to Budapest and the recourse to the
"provisional soluti.on" in November 1991, only two months elapsed.
That is an extremely brief interval when one considers that the 1977
Treaty took two decades to prepare.
The Report of the Special Rapporteur on the Law on the Non-Navi-
gational Uses of Iriternational Watercourses noted the importance of the
parties' duty to negotiate by citing the Judgment delivered by the Court
in the North Seu Continentul Sheifcases. That obligation flows from the
very nature of the respective rights of the parties. It
"merely constitutes a special application of a principle which under-

lies al1 international relations, and which is moreover recognized in
Article 33 of the Charter of the United Nations . . ." (I.C.J. Rep0rt.r
1969, p. 47, para. 86).
From al1 these corisiderations, the Rapporteur concludes:
"there is a geiieral principle of international law that requires nego-
tiations among States in dealing with international fresh water
resources . . . [and they also have the obligation] to negotiate the
apportionmerit of the waters of an international watercourse" ( Ycur-
book of the Ini'ernutional Laiv Commission, 1980, Vol. I I , Part. 2,

pp. 116-117, pa.ras. 31 and 34).
The Articles of the Draft Convention on the Law of the Non-Naviga-
tional Uses of International Waterways, adopted very recently by the
General Assembly of the United Nations, are prompted by exactly the
same principles.
The Court, in its Judgment (para. 141), reaffirms what it stated in the
North Sru COntine~ltalSkeif cases;
"[the Parties] are under an obligation so to conduct themselves that
the negotiatioris are meaningful, which will not be the case when
either of them insists upon its own position without contemplating
any modification of it" (1.C.J. Reports 1969, p. 47, para. 85).
It is difficult to accept that during the two months in question, the con-
tracting parties t o the 1977 Treaty exhausted al1 the possibilities of reach-
ing an agreement with respect to a mutually acceptable modification of
that instrument. However, the Czechoslovak Government decided to
change unilaterally the state of affairs established in the Treaty and
openly to breach it. Under the cover of a "provisional" measure, it
undertook works v~hichrelated to a permanent construction and were
not authorized by ihe Treaty, thereby making it impossible to attain its
object and purpose. Instead of negotiating in order to reach an agree-
ment, it opted for n policy of "faits accomplis", having recourse to uni-
lateral measures when the negotiations were still under way. The oppor-
tunity of a solutiori agreed between the Parties nonetheless still existed.
The Parties d o not agree as to when and how the decision was taken.
On 31 August 1989 the Czechoslovak Prime Minister, Mr. Adamec,
raised the possibility of "unilateral measures" to ensure the operation of
the GabCikovo darn. In its representation of 30 October 1989, Czecho-
slovakia indicated that :
"In the event that the Republic of Hungary fail to fulfil its obli-
gations the Czechoslovakian party would be obliged to implement a
provisional technical solution . . . consisting in diverting, for the
GabCikovo works, the volumes of Danube water agreed in the origi-
nal treaty . . ."
In a work by Egil Lejon, copies of which were made available to Mem-
bers of the Court during the Slovak stage of the site visit, the following is
stated :
"January 17, 1991 : Based on the report, the Slovak Govern-
ment decides to start preparations of the temporary solution, i.e.
'Variant C', not depending on Hungarian co-operation, however not
excluding the possibility of returning to the Treaty conditions
in the future." (Guhc'ikovo-Nagymuros, Old and Neiv Sins, 1994
(English ed., 11996), p. 86.)
GABCIKOVO-NAGYMAROS
Furthermore, Bratislava newspapers reported that work had actually

started on 2 April 1991.
Those various dates are only pertinent in the event that it has to be
decided whether the parties negotiated in good faith. However, the Court
was not called upon to pronounce on the Parties' responsibility for the
failure of the negotiiations. In any event, it does not appear to be neces-
sary to proceed with a n examination of the different dates relevant to the
recourse to the "provisional solution" - namely Variant C - since the
important one is that appearing in the Special Agreement.
Variant C differs in several respects from the original Project included
in the 1977 Treaty. Its Phase 1 includes nine features unrelated to the
1977 Project, and Phase II has three. Instead of the dam at Dunakiliti
and its installations. another dam and its additional installations were
built, 10 kilometres bpstream, in Czechoslovak territory, making it pos-
sible to divert waters from the Danube into the bypass canal leading to
GabCikovo. The storage reservoir a t Cunovo has 30 per cent less surface
area as compared with the original Dunakiliti project, which has cer-
tainly reduced the risks of damage that polluted water retained by its
dykes could have caused to the groundwater. However, at the same time,
Variant C has enakiled the Danube to be diverted from its old bed, over
a 40-kilometre section instead of the 30 provided for in the original
Project, and this has had a significant impact on the environment of the
Szigetkoz region.
It is not, however, the range of new installations that puts Variant C

quite at odds with the original Project and renders it contrary to the 1977
Treaty and to general international law, but the fact that its construction
is the result of actc; undertaken unilaterally by Czechoslovakia, without
the agreement of t:he directly interested Party, Hungary. Variant C was
built despite repeated protests from Hungary and the fact that its opera-
tion was going to have direct and significant consequences on the terri-
tory of Hungary.
Slovakia claims i:hat Hungary acquiesced in the original plan to divert
the Danube, and that it was therefore not entitled to protest against the
diversion carried out under Variant C. It is true that, under the 1977
Treaty and the related Joint Contractual Plan, the Parties were to build
the Dunakiliti reservoir and divert the Danube waters into the bypass
canal leading to Gabtikovo, and from there to Szap. However, that part
of the original Project did not deprive Hungary of control over its border
waters and did not expose the ecology of one of its regions to the effects
of uncontrollable activity by its neighbour. O n the basis of the original
Project, Hungary was able to defend its own interests directly, and Vari-
ant C deprived it c)f that possibility. Hungary no longer commanded the
means made available to it by Article 14, paragraph 1, of the 1977 Treaty
in respect of its ability to withdraw water from the Danube in excess of
the specified quantities, in order to protect its essential interests regarding
the environment of the Szigetkoz. Only Slovakia is in a position to with-
GABCIKOVO-NAGYMAROS
draw water from the Danube a t its own convenience. The old project,
with al1 its drawbacks and defects, was a joint enterprise under the joint
control of both parties. Variant C no longer had or has anything in com-
mon between the two parties, as a result of the exclusive control exercised
by Czechoslovakia - now Slovakia - and was never given any kind of
approval by Hungary.
According to the well-known maxim sic utere tuo ut ulienum non lue-
dus, one's property may not be used in such a way as to cause significant
damage to another. Furthermore, in the present case, Czechoslovakia did
not, and Slovakia today does not use its property in an unlawful manner,
but it has appropriated - and this is one of the key factors in the dispute
-- something whichi did not belong to it, namely almost al1 the waters of
the Danube. It follows from Article 3 of the 1976 Agreement on Bound-
arv Waters that the Parties to the disnute "are entitled. unless otherwise
a&eed, to one-half of the natural dis'charge of water not augmented by
technical means". The Parties have not agreed otherwise. since there has
been no agreement between them as to ~ i r i a n C.
t variant C is therefore
a grave breach both of the 1977 Treaty and of the 1976 Treaty on Bound-
ary Waters.
In its Judgment the Court has rejected the doctrine of "approximate

application" on which Slovakia based its reasoning in order to justify the
construction of Variant C. 1 concur with the conclusion and reasoning of
the Court on that point: "In spite of having a certain external physical
similarity with the original Project, Variant C thus differed sharply from
it in its legal characteristics." (Para. 77.)
Thus, 1 shall not labour the point. 1 am moreover in agreement with
what the Court states in its Judgment as regards the justification of
Variant C as a countermeasure:
"an important consideration is that the effects of a countermeasure

must be comniensurate with the injury suffered, taking account of
the rights in question.
The Court considers that Czechoslovakia, by unilaterally assum-

ing control of a shared resource, and thereby depriving Hungary of
its right to an equitable and reasonable share of the natural resources
of the Danube - with the continuing effects of the diversion of
these waters on the ecology of the riparian area of the Szigetkoz -
failed to respect the proportionality which is required by interna-
tional law.
the diversion of the Danube carried out by Czechoslovakia was

not a lawful countermeasure because it was not proportionate"
(paras. 85 ancl 87).
That observation., however, implies a need for certain additional con-
clusions. We are not dealing simply with "intersecting wrongs" on the
part of both Parties to the dispute. The Court has not taken care to dis-
tinguish between the "wrongs", and has declared, inter uliu, "that both
Hungary and Czechoslovakia failed to comply with their obligations
under the 1977 Treaty". It referred to the existence of "reciprocal wrong-
ful conduct" and "reciprocal non-compliance" (para. 114) as the conse-
quence of "the fact that the Treaty has not been fully implemented by
either party for years" (para. 133). What should have been done was
assess how serious the unlawful conduct attributed to both Parties was in
order to make the riecessary inferences.
Hungary, by abandoning the construction of the Nagymaros dam,
ruled out the peak mode operation of the GabEikovo power plant, a
mode of operation on which there was n o prior agreement between the
Parties, and, by suspending the works at Dunakiliti, it delayed the com-
missioning of the CiabEikovo power plant. As a result, it inflicted finan-
cial losses on its partner whereas Czechoslovakia, later Slovakia, by
building on its territory a dam unilaterally diverting the waters of the
Danube, violated a provision essential to the accomplishment of the
object and purpose of the Treaty, as laid down in Article 60, paragraph 3,
of the Vieiina Convention on the Law of Treaties.
The construction of Variant C infringed several essential provisions of
the 1977 Treaty: not only those to be found in Articles 15, 19 and 20, but
above al1 those coricerning the joint use and control of the plant built
under the Treaty. The Agent of Slovakia admitted this expressly during
the hearings: "a joint operation was of the very essence of the Project
under the 1977 Treaty" (CR9717, p. 16, Tomka). Variant C therefore
infringed the objeczt and purpose of the 1977 Treaty itself, and that
serious infringement is tantamount to a rejection of the Treaty by
Czechoslovakia.
The Court, in its Advisory Opinion on the Legul Consequences for
States of the Continued Presence of South Africu in Namibia (South
West Ajricu) notivithstanding Security Council Resolution 276 (1970),
referred to General Assembly resolution 2145 (XXI), when stating:
"The resoluiion in question is therefore to be viewed as the exer-

cise of the rigllt to terminate a relationship in case of a deliberate
and persistent violation of obligations which destroys the very object
and purpose of that relationship." (1.C.J. Reports 1971, p. 47,
para. 95.)
The object and purpose of the 1977 Treaty (the "socialist integration"
of the States Members of COMECON, included in its preamble, having
in the eveiit become obsolete) consisted in joint utilization of the natural
resources of the Danube. The unilateral diversion of these waters and
their exclusive utilization by Slovakia were undoubtedly a breach of a
provision essential to the accomplishment of the object and purpose of
the Treaty, whereas the conduct of Hungary simply delayed but did not
preclude the commissioning of the power plant; Hungary did not destroy
"the object and purpose" of the treaty relationship.
1 disagree with the Judgment of the Court when it concludes that
Czechoslovakia was entitled, in November 1991, to carry out Variant C
(para. 88), given that:
"between November 1991 and October 1992, Czechoslovakia con-
fined itself to the execution, on its own territory, of the works which
were necessary for the implementation of Variant C, but which
could have been abandoned if an agreement had been reached
between the parties and did not therefore predetermine the final
decision to be taken" (para. 79) .
1 cannot agree with that explanation for the following reasons:
The fact that the work on Variant C was only carried out on Czecho-
slovak territory does not preclude its unlawfulness. A State can quite well
use its own territory to breach its international obligations, and there are
numerous examples which could show this to be the case. The fact that
the works "could have been halted" is not a convincing argument either
and, in any event, work on Variant C was not stopped, as requested by
Hungary -- not even for a limited time.
The constructions of Variant C could not be considered t o be "works

preparatory" to the diverting of the Danube waters. Only the design and
plans for Variant C: may be so described, but not the actual recourse to
that Variant. namely the construction of works -dykes, dams -
intended for the diversion. The Judgment refers (in paragraph 79), to
the commentary of the International Law Commission on the Draft
Articles on State Responsibility. However, that commentary expressly
mentions the folloviing:
"With regard t o the timing of any claim for cessation on the part
of the iniured State o r States. it is obvious that n o such claim could
be lawf;lly piit forward unless ihr w~rongfulconduct hud begun,
namely unless the threshold of unlawfulness had been crossed by an
allegedly wrongdoing State's conduct." ( Yearbook of the Intrrnu-
tionul Laii~ Commission, 1993, Vol. II, Part 2, p. 57, para. 14;
emphasis added.)
Since Variant C, as such, constituted a breach of the 1977 Treaty, the
unlawful conduct of Czechoslovakia began when it proceeded to the con-
struction of those works necessary for the unilateral diversion of the
Danube waters. It is completely arbitrary and inconsistent to separate
that conduct of Cz:echoslovakia - unlawful in my opinion - from its
result - iinlawful according to the Court.
Accordingly, 1 c,onclude that Czechoslovakia acted unlawfully when,
in November 1991, it embarked on the provisional solution. In other
GABCIKOVO-NAGYMAROS
words, it was no more entitled to d o so than to commission it in October

1992.
1 feel obliged to express a dissenting opinion in respect of the reply to

the third question put to the Court, namely: "what are the legal effects of
the notification, on 19 May 1992, of the termination of the Treaty by the
Republic of Hungary?" In other words, did the 1977 Treaty remain in
force?
On 19 May 1992, the Government of Hungary notified the Govern-
ment of Czechoslo~iakiathat it would consider the 1977 Treaty to have
been terminated as ifrom 25 May of that same year. Diplornatic exchanges
show that it was Czeclioslovakia's categoric refusal to suspend the work
on Variant C, even for a limited time, which determined the date of the
Government of Hungary's decision to terminate the Treaty. The main
reason for that decision was a wish to respond to the rejection of the
Treaty by Czechoslovakia, constituted by the construction of Variant C.
Article 60 of the Vienna Convention on the Law of Treaties authorizes a
contracting party to act in this way, as will be shown later.
The Hungarian Government took its decision on the basis of the fol-
lowing consideratic)ns: ( a j state of necessity; ( b ) impossibility of per-
formance; (c) fundamental change of circumstances; ( d i substantial
breach of the Treaty by the other party; and, finally, ( e ) protection of
the environment which had become mandatory in international law.
As a preliminary., I would observe that in reality one does not often see
"pure" or unequivocal cases, in the sense that they require only one single
abstract type of legal settlement o r solution. More often than not, the
legal situation in which the parties find themselves falls within the ambit
of several rules of international law at the same time.
1 shall not examine al1 the arguments put forward by Hungary. Its
main argument to justify termination of the 1977 Treaty is clearly that
the construction 01' Variant C constituted a breach of that Treaty, for
the reasons given bsefore the Court. Hungary described the grave breach
constituted by Variant C as a "repudiation" by Czechoslovakia of the
Treaty, constitutin;: a fundamental change of circumstances (CR 97113,
p. 42, Crawford). The aforementioned concepts and expressions reflect
the situation which prevailed in May 1992, viewed from different angles.
Hungary further contended that that situation could be characterized as
a case of impossibility of performance and, of course, that the develop-
ment of international environmental law ought to be taken into consid-
eration in this context.
From among these different approaches, 1 shall select the one which
seems to me to be the most adequate and the result of which best reflects
the legal points characterizing the situation. That will render superfluous
(;ABCIKOVO-NAGYMAROS PROJECT (DISS.OP. HERCZEGH) 197
the examination of the other arguments put forward, which 1 d o not think
d o more than "reorganize" those points differently and less precisely.
Article 60, paragiraph 1, of the Vienna Convention on the Law of
Treaties provides :
"A material breach of a bilateral treaty by one of the parties
entitles the othr:r to invoke the breach as a ground for terminating
the treaty o r suspending its operation in whole or in part."
Article 60, paragraph 3, provides as follows:
"A material breach of a treaty, for the purposes of this article,
consists in:
(a) a repudiation of the treaty not sanctioned by the present Con-
vention; o!r
( b ) the violation of a provision essential to the accomplishment of
the object or purpose of the treaty."
Variant C constitiited a violation of the provisions of the 1977 Treaty
and other rules of international law, since Hungary was deprived of the
Danube waters whi~rhbelonged to it. As joint operation was the very
essence of the Project provided for by the Treaty, the unilateral diversion
precluded the acconiplishment of the object and purpose of the Treaty.
Notwithstanding the ecological effects that the diversion of the Danube is
alleged to have had, predictably, on Hungary, the mere fact of a uni-
lateral diversion - taken on its own - was so serious that it justified
termination of the Treaty. The main and decisive reason for the termina-
tion is to be found in the construction of Variant C and its unlawfulness,
which must be described as a fundamental violation withiri the meanirig
of Article 60, paragi-aph 3 (b), of the Vienna Convention. The question
falls clearly within t:he ambit of the law of treaties. All the other reasons
put forward are merely subsidiary.
If Variant C truly constituted a grave breach, a fundamental violation
of the Treaty - whi'ch the Court itself has noted - Hungary was entitled
to terminate the Tre:aty.
Was Hurigary's decision premature?
It is true that the diversion of the waters of the Danube had not yet
been completed in May 1992, but the grave breach of the Treaty had
already begun - as 1 have shown earlier - when Czechoslovakia started
constructing Variant C in November of the preceding year. It is difficult
to accept that Hungary should have passively awaited completion of the
construction of Variant C. Czechoslovakia had on several occasions
stated that it was determined to implement the "provisional" solution.
The bilateral negotiations were deadlocked; work on Variant C was pro-
gressing well and Cs:echoslovakia made no secret of its intention to carry
out a unilateral diversion of the Danube waters at Cunovo on the
planned date, while refusing, even for a strictly limited time, to suspend
the works whose objective was no longer a mystery.
GAS~.~KOVO-NAGYMAROSPROJECT (DISS.OP. HERCZEGH) 198
When implementing Variant C, Czechoslovakia always described it, in so

far as it was a measure designed to attain the purpose of the 1977 Treaty, as
an "approximate application" of that Treaty. In an attempt to stop con-
struction work, Hungary sought to deprive Variant C of its alleged justifi-
cation, and hence il announced its termination of the Treaty. Work on
Variant C was undertaken and completed on Czechoslovak territory alone.
Termination of the 1977 Treaty was the only means available to Hungary
to prevent Czechoslovakia from diverting the Danube waters in the sector
where both banks of the river belong to that country. On 19 May 1992, it
notified Czechoslovakia that it would consider the Treaty to be terminated
as from 25 May of that year. The period of notice was certainly very short
but Article 65. paragraph 2, of the Vienna Convention on the Law of Trea-
ties, which provides lor a three month time-limit, contains as it should be
-
emphasized - the following exception : "except in cases of special urgency".

In such a case the time-limit may be less than three months. In May 1992,
in the face of very visible progress in the building of Variant C, Hungary
was manifestly in such a situation "of special urgency".
Recourse to termination of the 1977 Treaty proved ineffectual: Czecho-

slovakia's decision was taken, and it was to remain irreversible. In fact,
construction had started up and work was not suspended for a single
moment; it carried on, even after Hungary had notified its partner that it
considered the Treaty to be terminated. In any event, the unilateral diver-
sion of the Danube: was completed on 26 October 1992, and the grave
breach of the 1977 Treaty was complete. Even if Hungary's Note of
19 May could - as the Court holds - have been considered premature,
it took effect, at the latest, when the diversion of the Danube waters was
completed.
Did Hungary, as a result of the alleged violations of its international

obligations, forfeit its right to terminate the 1977 Treaty?
In the first part of my dissenting opinion, 1 showed that, when sus-
pending and then abandoning the works at Nagymaros, Hungary acted
out of a state of necessity, for which the criteria- which d o not need to
be repeated here - were al1 met. The state of necessity exonerated Hun-
gary from the responsibility incurred on account of its failure to comply
with certain provisions of the 1977 Treaty. As far as the suspension of the
works at Dunakiliti is concerned, the majority of the criteria for a state of
necessity were also met, but it is true that Czechoslovakia had an essen-
tial interest in the continuation of these works. Hungary, for its part,
completed the construction of the dykes downstream of GabCikovo for
which it was resporisible under the Treaty and it offered to compensate
Czechoslovakia for such losses as that State might have sustained. There
are therefore, in Hungary's favour, circumstances exonerating it from
responsibility and certain mitigating circumstances, since the conduct for
which it can be reproached is not as serious as that constituted by
Czechoslovakia's construction of Variant C. The Treaty did not survive

the joint effect of the serious breach constituted by the diversion of the
Danube and Hungiiry's notification of its termination. The question of
State succession to the Treaty is therefore irrelevant.
As far as the expression "related instruments" is concerned, it should
be noted that with the disappearance of the Treaty, the fundamental text
which could hold al1 the instruments together n o longer exists. That
expression subsequently lost any legal significance. That does not mean
that al1 the instruments whose provisions could have a certain relation-
ship to those of the 1977 Treaty have become obsolete. Their fate should
be decided separately, having regard to the relevant rules of international
law.
The Court in it:i Judgment has taken the view, however, that the
16 September 1977 Treaty remained in force and that the Slovak Repub-
lic, as successor Sitate to the Federal Czech and Slovak Republic,
became a party to the Treaty as from 1 January 1993. With regard t o the
legal consequences of the Judgment, including the rights and obligations
for the Parties whic:h the Court was asked to determine under Article 2,
paragraph 2, of the Special Agreement, the Court, in paragraph 2 of the
operative part of the Judgment, states at point B that
"Hungary and Slovakia must . . . take al1 necessary measures to
ensure the achievement of the objectives of the Treaty of 16 Septem-
ber 1977, in a.ccordance with such modalities as they may agree
upon".
For its part, point (Iof paragraph 2 of the operative part uses the words
"in accordance witli the Treaty", and point E the expression "in accord-
ance with the relevimt provisions of the Treaty".
By deciding that the 1977 Treaty is still in force, the Court made its
own task more difficult and did nothing to ease that of the Parties since
they have to reachi a n agreement on the resolution of questions over
which they have been in dispute. According to its reasoning,
"The Court would set a precedent with disturbing implications for
treaty relation:; and the integrity of the rule pactu sunt .servunda if it
were to conclude that a treaty in force between States . . . might be
unilaterally set aside on grounds of reciprocal non-compliance."
(Para. 114.)
1 must observe that the expression "reciprocal non-compliance" does
not adequately reflect the cause o r causes of the termination of the treaty.
However, that is not my essential objection regarding that part of the
Judgment; rather a.m 1 concerned at the divergences - not to say con-
tradictions - between its "declaratory" part and its "prescriptive" part.
The Court, while rriaintaining the Treaty in force, wanted to avoid being
GABCIKOVO-NAGYMAROS
PROJECT (DISS.
OP. HERCZEGH) 200
set against the maxiim summum jus sunzma injuria, and it recognized that
the 1977 Treaty, in its originul fornl, did not apply. 1 will cite the perti-
nent passages of the Judgment in extenso:
"133. The Court, however, cannot disregard the fact that the
Treaty has not been fully implemented by either party for years, and
indeed that their acts of commission and omission have contributed
to creating the factual situation that now exists. Nor can it overlook
that factual situation - or the practical possibilities and impossibili-
ties to which it gives rise- when deciding on the legal requirements
for the future conduct of the Parties.
What is essential, therefore, is that the factual situation as it has

developed since 1989 shall be placed within the context of the pre-
served and developing treaty relationship, in order to achieve its
object and purpose in so far as that is feasible. For it is only then
that the irregular state of affairs which exists as the result of the fail-
ure of both Parties to comply with their treaty obligations can be
remedied.
134. What rnight have been a correct application of the law in
1989 or 1992, if the case had been before the Court then, could be a
miscarriage of justice if prescribed in 1997. The Court cannot ignore
the fact that the GabEikovo power plant has been in operation for
nearly five years, that the bypass canal which feeds the plant receives
its water from a significantly smallervreservoir formed by a dam
which is built riot at Dunakiliti but at Cunovo, and that the plant is
operated in a run-of-the-river mode and not in peak hour mode as
originally foreseen. Equally, the Court cannot ignore the fact that,
not only has blagymaros not been built, but that, with the effective
discarding by both Parties of peak power operation, there is n o
longer any point in building it."
The reasoning of the Court in that context is based above al1 on the
role of the time factor - the eight years that have elapsed between 1989
and 1997: "What inight have been a correct application of the law in
1989 or 1992, if the case had been before the Court then, could be a mis-
carriage of justice if prescribed in 1997." (One should not forget, in this
context, that Hungary proposed, as early as November 1989, that the dis-
putes which the parties could not resolve themselves should be decided by
arbitration or by recourse to the International Court of Justice.) In my
opinion, however, the approach limiting the impact of the time factor to
the period that has elapsed since the dispute arose does not enable the
Court, against the background of a complex case, to incorporate al1 of its
relevant aspects.
Time passed, nof only between 1989 and 1997, but also between 1977
GABCIKOVO-NAGYMAROS
PROJECT (DISS.OP. HERCZEGH) 20 1
and 1989. The 1977 Treaty - a bilateral treaty - was concluded in a

specific political context, that of the bid to promote socialist integration
of the States Members of the Council for Mutual Economic Assistance,
which was radically transformed in 1989. The economic climate prevail-
ing in 1977, marked by the economic system known as the command
economy, was overturned in a no less radical manner when the advent of
the market economy modified al1 expectations as to the cost and viability
of the G / N Project. Furthermore, since the signature of the Treaty, eco-
logical knowledge and requirements have evolved rapidly. The Parties
both admitted that the Treaty was out of date: Hungary by proposing to
amend it in November 1989; and Czechoslovakia in September 199 1, by
recognizing that the obsolete parts of the Treaty should be cancelled
(Memorial of Slovakia, Vol. IV, Ann. 97, p. 249). The sudden recourse to
Variant C , the so-iialled "provisional solution", prevented the Parties
from finding a mut~iallyacceptable solution to the problems raised by the
Treaty. The facts, which 1 need not repeat at this juncture, that argue for
modification of the 'Treaty and require the conclusion of a new agreement
already existed in 1089, and d o not derive from the period subsequent to
that date as consequences of the unlawful conduct of the Parties.
The Judgment of the Court puts those Parties back in the context of an
"old", "out-of-date" Treaty, whilst prescribing sensible, reasonable and
even essential changes: to exclude definitively the peak mode operation
of the Gabtikovo power plant; not to build the Nagymaros works since
"there is no longer any point in building [them]"; and, with regard to
environmental protection, to take "new norms" into consideration and to
assess "new require.mentswappropriately, "not only when States contem-
plate new activities but also when continuing with activities begun in the
past" (para. 140).
Those norms would be more effective and the Parties to the dispute
could apply them more easily without the references to the 1977 Treaty.
The Court could and should have founded the prescriptive part of its
Judgment not upon an obsolete Treaty which could not be implemented
- and which in my opinion had been terminated - but on the uncon-
tested rules of general international law and on other treaties and con-
ventions in force between the Parties, in order to resolve the problems
they had inherited jTom the old GIN Project.
One may be certain that the termination of the 1977 Treaty would not
have left the Parties to the dispute in a legal vacuum. Their "relation-
ship", as the Court noted,
"is also determined by the rules of other relevant conventions to which
the two States are party, by the rules of general international law and,
in this particular case, by the rules of State responsibility" (para. 132).
The preamble to the Special Agreement concluded by Slovakia and Hun-
gary states that the Slovak Republic is the "sole successor State" of the
Czech and Slovak E'ederal Republic "in respect of rights and obligations
relating to the GabEikovo-Nagymaros Project". The rights and obliga-
tions created by the: performance of the 1977 Treaty before it was termi-
nated are not affected by the termination of the Treaty. Under Article 70,
paragraph 1, of the Vienna Convention on the Law of Treaties:
"Unless the treaty otherwise provides o r the parties otherwise
agree, the termination of a treaty under its provisions or in accord-
ance with the present Convention :
( a ) releases the parties from any obligation further to perform the
treaty;
( b ) does not izffect u n j right, obligation or legul situation of' the
parties created through the execution oj'the treuty prior to its
ternîination. " (Emphasis added.)
The installations constructed in good faith in fulfilment of the 1977
Treaty - such as (3abEikovo and Dunakiliti - are not affected by the
ultimate fate of that Treaty. Slovakia may therefore keep u p and use the
GabEikovo power plant in a manner not causing significant damage to its
neighbour. that is to say, in particular, by operating it in run-of-the-river
mode. As to the problems resulting from construction of the Cunovo
dam and the diversion of the Danube waters, they should be settled in
accordance with otlier treaties in force between the Parties, in particular
the 1976 Boundary Waters Convention, and with the other principles and
rules of international law in force between the Parties and placing them
under certain binding obligations. It follows that each of the Parties is
obliged to refrain from any act or any conduct having harmful effects on
the environment and causing significant damage to the other Party.
The most important point in that regard is the equitable and reason-
able sharing of the Danube waters. The Judgment of the Court cites
Article 5 , paragraph 2, of the Convention on the Law of the Non-
Navigational Uses of International Watercourses, according to which:
"Watercourse States shall participate in the use, development and

protection of an international watercourse in an equitable and
reasonable manner. Such participation includes both the right to
utilize the watercourse and the duty to co-operate in the protection
and development thereof, as provided in the present Convention."
(Para. 147.)
That principle, which may rightly be deemed to express a general rule
of international law in force, is relevant to the settlement of the dispute in
this case. The unla~wfulnessof Variant C lay in the appropriation by
Czechoslovakia, then by Slovakia, of almost al1 the Danube waters,
a shared natural resource. That unilateral use must cease as soon as
possible and definitively. That aim can be achieved by "associating
Hungary, on an equal footing, in the operation and management, and the
benefits" of the wo:rks built to date in fulfilment of the 1977 Treaty or
outside and against it, and that by way of the agreed utilization of
the natural resourc:es of the Danube in the sector in question. This
would provide a reinedy for the breach of international law constituted
by Variant C, and the de jacto status would be transformed into a régime
of law. That is the direction and spirit expressed by the Court in para-
graph 146 of it its .Judgment. 1 concur with the essence of the message
contained in that paragraph, whilst considering myself obliged to
express it differently in order to take account of the reasons which 1
have attempted to set out above.
Finally, 1 reiterate my conclusion that the 1977 Treaty was lawfully ter-
minated and that iit is no longer in force. The prescriptive part of the
Judgment of the Court would, in my opinion, have been more logical and
more convincing if the Court had not based it on the 1977 Treaty but
rather on the rules of general international law and on the other treaties
and conventions binding on the Parties.
These considerations forced me to vote against points A, B and D of
paragraph 1 of the operative part.
As regards the points of paragraph 2 of the operative part, it goes with-
out saying that, ha.ving voted against point D of the first paragraph,
1 had to vote against point A of the second paragraph. 1 am firmly con-
vinced that Hungary and Slovakia must negotiate in good faith, on the
basis of the international law in force, to implement the rights and obli-
gations relating to the shared natural resources of the Danube. These
shared resources should be exploited jointly and in accordance with
mutually agreed arrangements. However, the fact that point R of para-
graph 2 refers expressly to the objectives of the Treaty of 16 September
1977, point C to a joint operational régime in accordance with that
Treaty, and point E to the relevant provisions of the said Treaty - which
Treaty in iny opinion, and having regard to the arguments put forward
above, is no longer in force - prevented me from voting in favour of
these points. At the same time, 1 voted in favour of point D on the
reciprocal compen~~ation of Slovakia and Hungary - unless the Parties
otherwise agree - for the damage they have sustained on account
of the construction of the System of Locks, since 1 considered that point
to be fair and in aclîordance with the relevant rules of international law.
(Signed) Géza HERCZEGH.

DISSENTING OPINION O F J U D G E FLEISCHHAUER
1 have voted in favour of paragraph 1 A of the dispositifof the Court's

Judgment as 1 a m in agreement with the Court's finding therein
"that Hungary was not entitled to suspend and subsequently aban-
don, in 1989, the works on the Nagymaros Project and on the part
of the GabEikovo Project for which the Treaty of 16 September 1977
and related instruments attributed responsibility to it" (para. 155).
1 a m also in agreement with the reasons that led the Court to this finding
(paras. 27-59).
1 have, moreover, voted in favour of paragraph 1 C of the dispositif,
according to which "Czechoslovakia was not entitled to put into opera-
tion, from October 1992, this 'provisional solution' " (para. 155). 1 share
the view of the majority that
"Czechoslovakia, in putting Variant C into operation, was not apply-
ing the 1977 Treaty but, on the contrary, violated certain of its
express provisions, and, in so doing, committed an internationally
wrongful act" (para. 78).
As to the reasoning which led the Court to its findings in this respect
(paras. 72-88), 1 note, in particular, that the Court has not endorsed jus-
tification of Czechoslovakia's recourse to Variant C by an alleged prin-
ciple of "approximate application" (para. 76) and that "[tlhe Court thus
considers that the diversion of the Danube carried out by Czechoslovakia
was not a lawful countermeasure because it was not proportionate"
(para. 87). 1 am in agreement with these positions of the Court.
1 cannot agree, however, with most of the rest of the Judgment, and in
particular not with its central finding that
"the notification, on 19 May 1992, of the termination of the Treaty
of 16 September 1977 and related instruments by Hungary did
not have the legal effect of terminating them" (conclusion 1 D ,
para. 155).
1 a m of the view that Hungary has validly terminated that Treaty by its
notification of termination of 19 May 1992, with effect from 25 May
1992, or - alternatively
- as from 23 October 1992, Le., the date of the
actual damming. Accordingly, 1 regard the consequences, which the
majority of the Court draws in the five conclusions in part 2 of para-
graph 155 as legally flawed, inasmuch as they are based on the concept of
205 GABc~KOVO-NAGYMAROS
PROJECT (DISS.
OP. FLEISCHHAUER)
the continuing validity of the 1977 Treaty. 1 have therefore voted against
four of them (i.e., conclusions 2 A, 2 B, 2 C and 2 E); my vote in favour of
conclusion 2 D has to be seen in the light of my considerations on the
legal consequences of the Judgment set forth in Part II below.
My reasoning is as follows.
1. As to the date of the unluwfulness of the recourse by Czechoslovakia

to Vuriunt C, the Judgment" points only to the date when the actual
damming of the Danube at Cunovo occurred, Le., to 23 October 1992:
"Czechoslovakia violated the Treaty only when it diverted the

waters of the Danube into the bypass canal in October 1992. In con-
structing the works which would lead to the putting into operation
of Variant C, Czechoslovakia did not act unlawfully." (Para. 108.)
"The Court notes that between November 1991 and October

1992, Czechoslovakia confined itself to the execution, on its own ter-
ritory, of the works which were necessary for the implementation of
Variant C, but which could have been abandoned if an agreement
had been reached between the parties and did not therefore
predetermine the final decision to be taken. For as long as the
Danube had not been unilaterally dammed, Variant C had not in
fact been applied." (Para. 79.)
Based on these findings the majority of the Court has concluded that:
"the notification of termination by Hungary on 19 May 1992 was
premature. No breach of the Treaty by Czechoslovakia had yet
taken place and consequently Hungary was not entitled to invoke
any such breach of the Treaty as a ground for terminating it when it
did." (Para. 108.)
These considerations are erroneous for two reasons:
Firstly, Czechoslovakia, when it "proceeded" to Variant C , as the
expression used in Article 2, paragraph 1 ( 6 1 , of the Special Agreement
reads, was not free to engage in this way of proceeding. It follows from
the Special Agreement that the time in question is November 1991. What
happened in November 1991 is that work on Variant C began that month
(para. 23). It is uncontested between the Parties that at that time, in spite
of Hungary's violation of the 1977 Treaty, the Treaty was in force
between Czechoslovakia and Hungary.
The 1977 Treaty being in force in November 1991, both Czechoslo-
vakia and Hungary were under the obligation to perform it in good faith.
That is the basic rule underlying the whole fabric of the international law
of treaties. It is reflected in Article 26 of the Vienna Convention on the
Law of Treaties ("Every treaty in force is binding upon the parties to it
and must be performed by them in good faith"). Good faith in perform-
ing a treaty does not only concern the manner in which the treaty is
applied and implemented by the parties to it; good faith performance
means also that the parties must not defeat the object and purpose of the
treaty. Under the Vienna Convention, the obligation not to defeat the
object and purpose of a treaty exists already before its entry into force.
According to Article 18 of the Convention:
"A State is obliged to refrain from acts which would defeat the
object and purpose of a treaty when:
( a ) it has signed the treaty or has exchanged instruments consti-
tuting the treaty subject to ratification, acceptance or approval,
until it shall have made its intention clear not to become a party
to the treaty; or
jb) it has expressed its consent to be bound by the treaty, pending
the entry into force of the treaty and provided that such entry
into force is not unduly delayed."
1 d o not want to go into the question as to whether the whole of
Article 18 corresponds actually to general international law. However,
as the International Law Commission remarked in its Commentary on
Article 15 (which became Article 18 in the text of the Convention as
adopted) - with a reference to the Permanent Court's decision in the
case concerning Certain Germun Interrsts in Polish Upper Silesia (Mrrits,
Judgrnent No. 7, P.C. I. J, Series A, No. 7, p. 30):
"That an obligation of good faith to refrain from acts calculated

to frustrate the object of the treaty attaches to a State which has
signed a treaty subject to ratification appears to be generally
accepted." (Yrarhook of the International Law Commission, 1966,
Vol. II, p. 202.)
A Jbrtiori does that obligation apply to a treaty after its entry into force.
It follows from there that a State party t o a treaty in force is not free to
engage in - even on its own territory as Czechoslovakia did as
from November 1991- construction works which are designed to frus-
trate the treaty's very object, i.e., in the present case the creation and the
operation of the Joint Project. The question of a justification of Czecho-
slovakia's construction work as countermeasure does not arise, as the
Court has - rightly - found that the diversion of the Danube carried
out by Czechoslovakia - which is the central part of Variant C - was
not a lawful countermeasure because it was not proportionate (para. 87).
Secondly, 1 d o not regard as the majority of the Court does - the

-
putting into operation of Variant C as a wrongful act which consisted

only in the actual damming of the Danube in October 1992. In my view,
the putting into operation of Variant C constituted a continuing wrong-
ful act in the meaning of Article 25 of the 1LC Draft on State Responsi-
bility (Report of the International Law Commission on the work of its
forty-eighth session, 6 May-26 July 1996, OJJicial Records of the General
Assembly, Fifty--rst Session, Supplement No. 10 (Al5 111O), p. 133),
which extended from the passing from mere studies and planning to con-
struction in November 1991 and lasted to the actual damming of the
Danube in October of the following year. This is so because Czechoslo-
vakia, in November 1991, entered into the construction phase in the cer-
tainty that Hungary would not, and could not, in view of the position
taken not only by its Government but also by its Parliament, return to
the implementation of the 1977 Treaty. A t the same time, Czechoslovakia
was firmly determined to start production at the Gabeikovo hydroelectric
power plant as soon as it was technically possible and to that end to dam
the Danube at Cunovo at the next occasion when that would be feasible,
i.e., during the low-water season in October 1992. How firmly both sides
were locked in their respective positions is illustrated by their diplomatic
exchanges. In April 1991, the Hungarian Parliament had recommitted the
Government to negotiate with the Czechoslovak Government "regarding
the dissolution by joint agreement of the Treaty concluded on 16 Sep-
tember 1977" (Parliamentary resolution 2611991 (IV.23) Regarding
the Government's Responsibility in Connection with the Gabcikovo-
Nagymaros Barrage System, Memorial of Slovakia, Vol. IV, Ann. 88,
p. 215) and instructed the Government to
"concurrently initiate the conclusion of a new international treaty to

settle the issue of the consequences of the non-construction (aban-
donment) of the barrage system and associated main projects"
(ibid.) .
Consequently, Hungary not only constantly protested the unilateral meas-
ures initiated by Czechoslovakia in order to put Variant C into opera-
tion, but it continued t o ask for the abrogation of the 1977 Treaty and its
replacement by a new agreement:
"the mandate of the Hungarian Governmental Delegation was deter-
mined by the Resolution of Parliament, . . . Freed from the politics
of the past, we can re-evaluate the disputed problem from a profes-
sionallscientific viewpoint, namely, the ecological effects, flood pro-
tection, navigation, energy, economic, technica~lsecurit~ and other
questions of the Barrage System related to the 1977 Interstate Treaty
or any other solution." (Hungarian Minister without Portfolio to
Slovak Prime Minister, 7 November 1991, Memorial of Hungary,
Vol. 4, Ann. 67, p. 122.)
PROJECT (DISS.OP. FLEISCHHAUER)
"the Hungarian Party has repeatedly (beginning in summer of 1989)

offered the Czech and Slovak Party the chance to co-operate and to
amend the 1977 Interstate Treaty, and to conclude a new treaty, . . .
the Czech and Slovak Party should not undertake any work which
would be aimed at unilateral solutions (which may, perhaps, mean
the diversion of the Danube in contravention of international law)"
(Letter from the Hungarian Minister for Environmental Protection
and Territorial Development and the Minister without Portfolio to
the Czechoslovak Minister of Environmental Protection of 6 Decem-
ber 1991, Memorial of Hungary, Vol. 4, Ann. 68, p. 124).
"ln light of this the Hungarian Government deems the decision

brought about on 12 December 1991 by the Czech and Slovak Fed-
eral Republic unlawful and unacceptable and calls upon the Czech
and Slovak Federal Republic to discontinue work on the diversion
of the Danube." (Note Verbale from the Ministry of Foreign Affairs
of the Republic of Hungary to the Embassy of the Czech and Slovak
Federal Republic, 14 February 1992, ihid., Ann. 74, p. 135.)
Czechoslovakia on the other hand, in the critical period between the
autumn of 1991 and May 1992, when Hungary came through with its
notification of termination of the 1977 Treaty, consistently gave this mes-
sage to Hungary :
"1 would once again emphasise, however, that Czechoslovakia will
only find acceptable a variant which would make the operation of
the Gabtikovo Barrage possible." (Slovak Prime Minister to Hun-
garian Minister without Portfolio, 19 September 1991, ihid.,
Ann. 62, p. 1 13.)
"Work on the temporary measures will also cease if the Hungar-
ian Party discontinues its unilateral breach of the 1977 Treaty and
recommences the obligations provided for it therein or if an agree-
ment is concluded between the Republic of Hungary and the Czech
and Slovak Federal Republic as to some other solution regarding the
fate of the Project.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Government of the Czech and Slovak Federal Republic is
prepared to continue negotiations with the Hungarian Government
on al1 levels regarding the situation which has developed. At the
same time, it cannot agree to the cessation of work on the provi-
sional solution." (Note Verbale from the Ministry of Foreign Affairs
of the Czech and Slovak Federal Republic to the Ministry of
Foreign Affairs of the Republic of Hungary, 17 March 1992, ibid.,
Ann. 76, p. 139.)
"Czechoslovak[ia] has shown enough good intentions and a readi-
ness to negotiate, but it can no longer give consideration to the time-
wasting and delays which are being used by Hungary, and thus, it
cannot suspend work related to the provisional solution. In my view,
until the Danube is closed (31 October 1992) there is still an oppor-
tunity to resolve the debated question by way of an agreement
between the two States." (Czechoslovak Prime Minister to Hungar-
ian Prime Minister, 23 April 1992, Memorial of Hungary, Vol. 4,
Ann. 79, p. 147.)
Czechoslovakia did not reject the formation of a joint committee of
experts, including "foreign experts nominated by the European Commu-
nity based on the needs of both Parties" (Slovak Prime Minister to Hun-
garian Minister without Portfolio, 18 December 1991, ibid., Ann. 69,
p. 126). But the Slovak Prime Minister added:
"1 am repeatedly stressing that, because of the high state of readi-
ness of the Gabëikovo plant, the only solution that is acceptable for
us is one which takes into acçount the putting into operation of the
GabCikovo plant." (Ibid.)
And on 8 January 1992 the Slovak Prime Minister repeated this position:
"We repeatedly emphasized at joint negotiations undertaken by
the Governmental Delegations of the CSFR and the Republic of
Hungary that we can only accept a solution which is aimed at the
commencement of operations of the Gabëikovo Barrage. This
demand is justified by the advanced stage of the construction a t
Gabëikovo and the amount of material resources invested.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Czechoslovak Party is willing to take into consideration the
conclusions of the work done by such a committee of experts in any
further procedures regarding the GabCikovo-Nagymaros Barrage
System. It is also known that the Government of the CSFR is willing
to suspend the provisional solution on its own sovereign territory
insofar as the Government of the Republic of Hungary is able to
find an opportunity to enter into a joint solution." (Ibid., Ann. 72,
p. 132.)
In the light of these circumstances, when the construction work for Vari-
ant C got under way, on both sides the point of no return was passed.
There was a continuum and the Czechoslovak action of November 1991
and its action undertaken in October 1992 share the same legal defi-
ciency. The putting into operation of Variant C was an internationally
wrongful act extended over time between November 1991 and October
1992.
Since 1 am thus - contrary to the opinion expressed in the Court's
Judgment - of the view that Czechoslovakia was not entitled to proceed,
in November 1991, to Variant C, 1 am also in disagreement with the con-
clusion in paragraph 1 B of the dispositifof the Judgment: "that Czecho-
slovakia was entitled to proceed, in November 1991, to the 'provisional
solution"' (para. 155). Nor can 1 agree with paragraph 1 D of the dis-
positif':
"that the notification, on 19 May 1992, of the termination of the
Treaty of 16 September 1977 and related instruments by Hungary
did not have the legal effect of terminating them" (ihid.)
in so far as it is based on the allegedly premature giving of the notifica-
tion of termination by Hungary (para. 108).
2. 1 ivould disagrec ivith the conclusion draivti hy the tnujority based on
the point in time ut which Hungarjl made its notification of'termination
even i f / shured - quod non - the vieiv thut Czecl~oslovukiavioluted thc
1977 Treuty only in October 1992. What that view means is that the noti-
fication of termination was not warranted in May, as no breach of the
Treaty had yet occurred (para. 108), but that when the damming of the
Danube happened, in October, the event occurred too late as far as the
Hungarian notification is concerned. This view amounts, in its practical
consequence, to a n extraordinary formalism: a unilateral legal act, the
notification, is discounted because a certain event, although expected and
foreseen, had not yet happened. The event happens, nothing else changes,
but still legal effects of the earlier act are said not to arise as it had been
premature. This approach to a matter of international law does not
correspond to the requirements of good faith. As the Court has said:
"One of the basic principles governing the creation and perform-

ance of legal obligations, whatever their source, is the principle of
good faith. Trust and confidence are inherent in international co-
operation, in particular in an age when this co-operation in many
fields is becoming increasingly essential." (Nucleur Tests (Australiu
v. France), Judgment, I. C.J. Reports 1974, p. 268, para. 46.)
If one regards - as the majority of the Court does - Hungary's notifica-

tion of termination as premature, then one must also admit that it would
have been possible for Hungary to withdraw this act and to substitute it
later by a new notification of termination based on the events of October
1992. The principle of good faith requires that under such circumstances
the defect of Hungary's original act, the, in the view of the Court, pre-
mature giving of its notification of termination of the 1977 Treaty, has to
be regarded as remedied once the missing factual event has occurred.
That the occurrence of a subsequent event can be an adequate ground for
remedying a defective unilateral act has been confirmed by the Per-
manent Court when it stated in the case concerning the Mavrommatis
Pules fine Concessions :
"Even if the grounds on which the institution of proceedings was
based were defective for the reason stated, this would not be an
PROJECT (DISS.OP. FLEISCHHAUER)
adequate reason for the dismissal of the Applicant's suit. . . . Even,

therefore, if the application were premature because the Treaty of
Lausanne had not yet been ratified, this circumstance would now be
covered by the subsequent deposit of the necessary ratifications."
(1924, P.C.I.J., Series A , No. 2, p. 34.)
And in the case concerning Certain Germun Interests in Polish Upper
Silesiu the Permanent Court said:
"Even if, under Article 23, the existence of a definite dispute were
necessary, this condition could at any time be fulfilled by means of
unilateral action on the part of the applicant Party. And the Court
cannot allow itself to be hampered by a mere defect of form, the
removal of which depends solely on the Party concerned." (1925,
P.C.I.J., Series A. No. 6 , p. 14.)
Even if, therefore, the date of 19 May 1992 is not regarded as a suitable
date for Hungary's notification of termination, this defect is to be regarded
as being remedied as from 23 October 1992, date of the actual damming
of the Danube.
3. In its finding that
"the notification, on 19 May 1992, of the termination of the Treaty
of 16 September 1977 and related instruments by Hungary did not
have the legal effect of terminating them" (para. 155 ( 1 ) D, see also
para. log),
the majority of the Court did not base itself alone on the ground that
Hungary's notification had been premature. Two more ground.7 are given,
neither of bvhich I cun ugree ivith.
The first of these additional reasons is
"that Czechoslovakiu cornmitted the internationully ivrongful uct of
putting into operation Vuriant C us u result of Hungary S ovvn prior,
ivronaful conduct. As was stated by the Permanent Court of Inter-
national Justice:
'It is, moreover, a principle generally accepted in the jurispru-
dence of international arbitration, as well as by municipal courts,
that one Party cannot avail himself of the fact that the other has
not fulfilled some obligation or has not had recourse to some
means of redress, if the former Party has, by some illegal act, pre-
vented the latter from fulfilling the obligation in question . . .'
(Factory at Chorzbcv, Jurisdiction, Judgment No. 8, 1927, P.C.I.J.,
Series A , No. 9, p. 31).
Hungary, by its own conduct, had prejudiced its right to terminate
the Treaty; this would still have been the case even if Czechoslo-
vakia, by the time of the purported termination, had violated a
provision essential to the accomplishment of the object or purpose
of the Treaty." (Para. 1 10; emphasis added.)
2 12 GAB~'IKOVO-NAGYMAROS PROJECT (DISS.OP. FLEISCHHAUER)
1 d o not want to put into doubt this general rule; however, 1 d o not
think that the principle applies in the circumstances of the present case.
My objection to the Judgment in this respect is twofold: firstly, the
Court overlooks that recourse to Variant C was neither automatic nor
the only possible reaction of Czechoslovakia to Hungary's violations of
the 1977 Treaty. Czechoslovakia would have been entitled to terminate
the Treaty. If it did not want to d o this, it could, for example, have pro-
vided unilaterally for participation of Hungary in the realization of Vari-
ant C, possibly in combination with a third party dispute settlement
clause. Secondly, the Court, in basing its negation of a right of Hungary
to terminate the 1977 Treaty in response to the realization by Czechoslo-
vakia of Variant C, on the fact that Hungary itself had violated the
Treaty first, does not take account of its own conclusion that
"Czechoslovakia, by unilaterally assuming control of a shared

resource, and thereby depriving Hungary of its right to a n equitable
and reasonable share of the natural resources of the Danube - with
the continuing effects of the diversion of these waters on the ecology
of the riparian area of the Szigetkoz - failed to respect the propor-
tionality which is required by international law" (para. 85),
and that the derivation of the Danube "was not a lawful countermeasure
because it was not proportionate" (para. 87).
What applies in the present case is this: Hungary, by its prior violation
of the 1977 Treaty, had not become a legal outlaw which must endure
every measure with which Czechoslovakia could come up in response.
The principle that no State may profit from its own violation of a legal
obligation does not condone excessive retaliation. The principle, as stated
by the Permanent Court and applied to the present case, means that one
Party, Hungary, would not be entitled to avail itself of the fact that the
other Party, Czechoslovakia, has not fulfilled an obligation if the first
Party, Hungary, has by a n illegal act prevented the other, Czechoslo-
vakia, from fulfilling the obligation in question. This, however, is not
the case here. The obligation not fulfilled by Czechoslovakia is the duty to
respect Hungary's entitlement to a n equitable and reasonable share in the
waters of the Danube. Hungary has not made it impossible for Czecho-
slovakia to respect that right; as 1 have pointed out above, the unilateral
realization of Variant C by Czechoslovakia was neither automatic nor
the only possible reaction to Hungary's breaches of the Treaty. A broader
interpretation of the principle in question which would disregard the
requirement of proportionality, would mean that the right to counter-
measures would go further, in respect to disproportionate intersecting
violations of a treaty, as it goes under general international law. It is
therefore wrong to apply the principle quite schematically to cases where
there are intersecting ("reciprocal") violations of a treaty as the Court
does where it States
2 13 GABC~KOVO-NAGYMAROSPROJECT (DISS. OP. FLEISCHHAUER)
"that although it has found that both Hungary and Czechoslovakia

failed to comply with their obligations under the 1977 Treaty, this
reciprocal wrongful conduct did not bring the Treaty to an end nor
justify its termination" (para. 114).
Rather, the recourse by Czechoslovakia to Variant C constituted a new
breach of the 1977 Treaty, this time by Czechoslovakia. This new breach
of the Treaty, by exceeding in proportionality Hungary's earlier breaches,
set in motion a new chain of causality and entitled Hungary to defend
itself by taking recourse to its right under Article 60 of the Vienna Con-
vention on the Law of Treaties, Le., to terminate the Treaty. The require-
ments of Article 60, paragraph 3 ( b ) , are met as
"the operation of Variant C led Czechoslovakia to appropriate,

essentially for its use and benefit, between 80 and 90 per cent of the
waters of the Danube before returning them to the main bed of the
river., desvite
, the fact that the Danube is not onlv a shared interna-
tional watercourse but also an international boundary river"
(para. 78)
and thus Variant C infringed upon basic rights of Hungary, essential in
the accomplishment of the 1977 Treaty. In a situation of disproportion-
ate intersecting violations of an international treaty, such as the one in
which Hungary and Czechoslovakia found themselves after the latter's
recourse to Variant C, the corrective element does not lie in the loss by
the first offending State of the right to defend itself against the second
offence by way of termination, but in a limitation of the first offender's
- here Hungary's - right to claim redress for the second offence.
1 therefore come to the conclusion that - contrary to the view of the

majority of the Court - the fact that Hungary violated the 1977 Treaty
first did not deprive it of its right to terminate the same Treaty in reaction
to its later violation by Czechoslovakia.
4. The other of the additional reasons invoked by the Court's majority
in support of the alleged invalidity of Hungary's notification of termina-
tion is
"that, according to Hungary's Declaration of 19 May 1992, the ter-
mination of the 1977 Treaty luas tu take effect as frum 25 May 1992,
that is only six days luter. Both Parties agree that Articles 65 to 67 of
the Vienna Convention on the Law of Treaties, if not codifying cus-
tomary law, at least generally reflect customary international law
and contain certain procedural principles which are based on an
obligation to act in good faith." (Para. 109; emphasis added.)
1 do not contest that Articles 65 to 67 may reflect certain procedural prin-

ciples pertaining to customary law, but 1 do not think that Hungary's
214 GAB~.IKovo-NAGYMAROS PROJECT (DISS.OP. FLEISCHHAUER)
notification of termination contradicts these principles. In this respect,

the delay of only six days provided for by Hungary for its notification to
become effective should not be seen in isolation. In fact, Hungary trans-
mitted its notification of termination a full six months after Czechoslo-
vakia had proceeded to Variant C in November 1991. During that period
Hungary - as shown above in the quotations from the diplomatie
exchanges between the two Parties - did not cease to protest against the
unilateral measures taken by Czechoslovakia and to ask that they be
stopped. Hungary also pointed out that a continuation of these measures
might put the fate of the 1977 Treaty into question:
"1 a m hopeful that the representatives of the Government and the
Parliament of the Czech and Slovak Republic having regard to their
historic responsibility will find an opportunity to take the above rea-
sonable points of view into consideration. If this expectation proves
to be futile, the Government of the Republic of Hungary would be
compelled to review the consequences of the discontinuation of the
negotiations, the fate of the 1977 interstate Treaty and the necessary
counter-measures." (Hungarian Prime Minister to the Czechoslovak
Prime Minister, 19 December 1991, Memorial of Hungary, Vol. 4,
Ann. 70, p. 129.)
"If the Government of the Czech and Slovak Federal Republic
were to reject our proposals anyway and continue the work aimed at
the diversion of the Danube, which is a serious breach of interna-
tional law, then it will create a very difficult situation. . . . The Gov-
ernment of the Czech and Slovak Republic would thus be placing
the Hungarian Government into a state of necessity forcing it to ter-
minate the Treaty." (Hungarian Prime Minister to Czechoslovak
Prime Minister, 26 February 1992, ihid., Ann. 75, p. 138.)
In these circumstances the fact that Hungary, in May 1992, gave only six
days' notice cannot be regarded as contravening the requirements of
good faith in the application of international law.
These are the reasons which lead me to the conclusion that Hungary
has validly terminated the 1977 Treaty as from 25 May 1992 or - alter-
natively - as from 23 October 1992.
II. T H ELEGALCONSEQUENCES
OF THE JUDGMENT
From my considerations set forth above it follows that the determination

of the legal consequences arising from the answers to the first three ques-
tions asked of the Court by the Special Agreement has to start from the
finding that Hungary has validly terminated the 1977 Treaty as from
25 May - o r alternatively 23 October - 1992. From there it follows that
up to that date the legal situation concerning the GIN Project was pri-
marily governed by the 1977 Treaty and related instruments; after that
date the situation is governed by general international law and by those
treaties which remain in force independently of Hungary's termination of
the 1977 Treaty, such as, inter alia, the 1948 Danube Convention, the
1976 Boundary Water Convention, the agreements relating to Danube
fishery, as well as by conventions of a general character such as the
Vienna Convention on the Law of Treaties.
This means that as from 25 May t o 23 October 1992 Hungary is n o

longer obliged to construct at Nagymaros. The constructions at Dunakiliti
d o not have to be revived and coinpleted. For Slovakia, the termination
of the 1977 Treaty means that it is no longer under an obligation to
arrange for the joint operation, together with Hungary. of the GabCikovo
hydroelectric power plant o r to share with Hungary the electricity gener-
ated there.
A second starting point is that the termination of the 1977 Treaty -
whether one accepts 25 May 1992 o r 23 October of the same year as the
decisive date - means that Slovakia, which came into existence as an
independent State only as from 1 January 1993, has never become a party
to the 1977 Treaty. The fact that Slovakia has never succeeded to
Czechoslovakia as a party to the 1977 Treaty does not mean, however,
that Slovakia has become separated from this case. Slovakia has
inherited the work-s produced under the GIN Project on its territory,
in particular the Cunovo reservoir, the bypass canal, the GabCikovo
lock and the GabCikovo power station. It is operating these installations.
It has thus endorsed and continued the Czechoslovak action regarding
Variant C. Slovakia therefore must be held accountable for Czechoslo-
vakia's acts regarding the GIN Project.
A third starting point for the determination of the legal consequences
should be the ex nunc effect of the termination of international treaties.
As laid down in Article 70 of the Vienna Convention on the Law of Trea-
ties, which is another provision reflecting a customary rule, the termina-
tion of a treaty releases the parties from any obligation to further per-
form the treaty but "does not affect any right of the parties created
through the execution of the treaty prior to its termination" (Art. 70,
para. 1 (6)).
This means, inter uliu, that the ownership of constructions which
existed on 25 May to 23 October 1992 remains as provided for in
Article 8 of the 1977 Treaty. If that creates problems, it is for the Parties
to sort them out by agreement between themselves.
A fourth starting point for the determination of the legal consequences

of the Judgment is the conclusion that Czechoslovakia was not entitled to
put Variant C into operation from October 1992 (paragraph 1 C of the
dispositifl as
"Czechoslovakia, in putting Variant C into operation, was not apply-

ing the 1977 Treaty but, on the contrary, violated certain of its
2 16 GABC~KOVO-NAGY
MAROS PROJECT (DISS.
OP. FLEISCHHAUER)
express provisions, and, in so doing, committed an internationally

wrongful act" (para. 78).
As 1 have pointed out above, 1 agree with the Judgment in these findings.
However, it does not follow from them that with the falling away of the
1977 Treaty al1 legal obstacles against the continued operation of Variant C
by Slovakia, as the successor to Czechoslovakia, were removed. This is
so because the appropriation by Czechoslovakia/Slovakia of the major
part of Hungary's share in the waters of the Danube for the full length of
the bypass canal violated not only the 1977 Treaty but, as the Judgment
recognizes, the basic right of Hungary to an equitable and reasonable
sharing of the resources of an international watercourse (para. 78). This
is a right that existed not only under the Treaty but which exists under
general international law.
This means that there is n o obligation for Slovakia to dismantle the

constructions which Czechoslovakia had built in order to make Variant C
operational. These constructions are al1 situated in what is now Slovak
territory and their mere presence there does not contravene any interna-
tional legal obligation of Slovakia. After the 1977 Treaty had fallen
away, there was, and still is, n o legal obligation for Slovakia any more to
provide for a joint running of the Gabtikovo hydroelectric power plant
or for a sharing of profits. There continues to be, however, a legal
obstacle against the unilateral running of Variant C by Slovakia,
and that is the unilateral appropriation of, as the Judgment confirms
(para. 78) between 80 and 90 per cent of Hungary's share in the waters
of the Danube without Hungary's consent on a stretch of about 30 km in
length. Hungary has requested the Court:
"to adjudge and declare jiirther

. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
( 5 ) that the Slovak Republic is under the following obligations:
( a ) to return the waters of the Danube to their course along
the international frontier between the Republic of Hun-
gary and the Slovak Republic, that is to Say the main navi-
gable channel as defined by applicable treaties;
( b ) to restore the Danube to the situation it was in prior to the
putting into effect of the provisional solution" (para. 13).
The Court cannot uphold these requests. While the 1977 Treaty was in
force, it had been breached by both Parties, albeit in different ways and
a t different times. As has been explained above, Hungary as the first
offender did not lose its right to defend itself against Czechoslovakia's
later violation of the Treaty. However, as regards the kind of restitution
Hungary can claim for the diversion of the waters of the Danube, the fact
that Hungary first adhered to the 1977 Treaty and endorsed it, in 1983
asked for a slowing down, but by no means the abandonment of its
execution, in 1989 again pressed for an acceleration and then, still in the
same year, suspended and subsequently abandoned its share in the works
at Nagymaros and Dunakiliti, cannot be overlooked. By reason of its
own previous behaviour Hungary cannot in good faith be considered to
be entitled to full restitution by return of the full flow of water to the old
Danube and the full restoration of the situation in which the Danube was
prior to the operation of Variant C. A water management régime must be
established that takes into account Hungary's ecological needs, as well as
the fact that the quantity of water going to the Slovak side and the rent-
ability of the Gabtikovo hydroelectric power plant are interrelated. It
would certainly be desirable that such a régime, which would be restricted
to water management, but - as the Treaty does not exist any more -
must not make provision for the joint running of the Gabtikovo hydro-
electric power plant, should be agreed between the Parties themselves.
Should the Parties fail, they would have to return to the Court under
Article 5, paragraph 3, of the Special Agreement.
The fifth starting point for the determination of the legal consequences of
the Court's Judgment must be the fact that as a consequence of the Judg-
ment the flow of water in the old bed of the Danube will be increased
again. lrrespective of whether and to what extent navigation will use the
old Danube again, there will be a discernible principal channel. There
will therefore be no necessity for new or additional boundary arrange-
ments. However, Slovakia, as a riparian State of the Danube and a party
to the 1948 Danube Convention, will be under the legal obligation to
make binding arrangements with the other States parties t o the Danube
Convention in order to secure for their navigation through the bypass
canal, the Gabtikovo locks and the Cunovo reservoir, conditions corre-
sponding to those provided for in the Danube Convention. On the same
line, Slovakia will also be under a legal obligation to provide for the
application, in the bypass canal and in the reservoir, of the provisions
concerning fisheries of the 1956 Treaty concerning the Régime of State
Boundaries as well as of the 1958 Convention concerning Fishing in the
Waters of the Danube.
The sixth point to be taken into consideration in this context is that, as

both Parties have committed internationally illegal acts against each
other, each Party owes the other compensation. Hungary owes compen-
sation to Slovakia for the damages arising out of the delays in construc-
tion caused by its suspension and subsequent abandonment of its share in
the works at Nagymaros and Gabtikovo between 13 May 1989 and
25 May to 23 October 1992. Slovakia in turn owes compensation to Hun-
gary for losses and damages sustained by Hungary and its nationals out
of the unilateral derivation by Czechoslovakia and Slovakia of waters of
the Danube between the actual damming of the river in October 1992 and
21 8 GABC~KOVO-NAGYMAROS
PROJECT (DISS.
OP. FLEISCHHAUER)
the entry into force of the water management agreement, t o be brought

about in pursuance of the Judgment of the Court. The amounts of com-
pensation have to be fixed in accordance with Article 5 of the Special
Agreement.
(Signed) Carl-August FLEISCHHAUER.

DISSENTING OPINION O F J U D G E VERESHCHETlN
1 regret that 1 cannot associate myself with those parts of the Judgment
according to which Czechoslovakia was not entitled to put the so-called
Variant C ("provisional solution") into operation from October 1992
(Judgment, para. 1.55, point 1 C ) and :
"Slovakia shall compensate Hungary for the damage it has sustained

on account of the putting into operation of the 'provisional solution'
by Czechoslovakia and its maintenance in service by Slovakia"
(para. 155, point 2 D).
1 firmly believe that Czechoslovakia was fully entitled in international

law to put into operation Variant C as a countermeasure so far as its
partner in the Treaty persisted in violating its obligations. Admittedly,
Slovakia itself advanced this defence as "an alternative legal argument7'
and did not fully develop it. The logic is very clear and has been repeat-
edly explained by Slovakia. It does not believe Variant C t o be a wrong-
ful act, even prima facie, while any countermeasure, viewed in isolation
from the circumstances precluding its wrongfulness, is a wrongful act in
itself.
Slovakia takes the view that Variant C was a lawful, temporary and
reversible solution necessitated by the action of its partner and prefers to
defend its decision on the basis of the doctrine of "approximate applica-
tion". However, a subjective view or belief of Slovakia cannot preclude
the Court from taking a different view on the matter. The Court is bound
by the questions put to it by the Parties in the Special Agreement, but not
by the arguments they advanced in their pleadings.
In this regard a very pertinent comment can be found in the Interna-

tional Law Commission's Commentary to the Draft Articles on State
Responsibility :
"Whether a particular measure constitutes a countermeasure is an

objective question . . . It is not sufficient that the allegedly injured
State has a subjective belief that it is (or for that matter is not)
taking countermeasures. Accordingly whether a particular measure
in truth was a countermeasure would be . . . a matter for the tribunal
itself to determine." (United Nations, OfJicial Records of the Gcn-
eral Assrmbly, Fifty-Jirst Session, Supplemcnt No. I O (AiSlilO),
pp. 162-163.)
220 GABcIKOVO-NAGYMAROSPROJECT (DISS.OP. VERESHCHETIN)
The Parties requested the Court to decide:

"whether the Czech and Slovak Federal Republic was entitled to
proceed, in November 1991, to the 'provisional solution' and to put
into operation from October 1992 this system . . ." (Special Agree-
ment, Art. 2, para. 1 ( h ) ; emphasis added).
Since the Court has decided that "Czechoslovakia was entitled to pro-
ceed, in November 1991, to the 'provisional solution"' (Judgment,
para. 155, point 1 B), 1 shall further focus my observations on the
entitlement of Czechoslovakia to put this system into operation from
October 1992.
Entitlement to respond by way of proportionate countermeasures stems
from a prior wrongful act of the State which is the target of the counter-
measures in question. According to the Court's jurisprudence, established
wrongful acts justify "proportionate countermeasures on the part of the
State which ha[s] been the victim of these acts . . ." (Militury und Pura-
militury Activitic.~in und ugainst Nicaruguu (Nicuruguu v. United Sfutes
of America), Merits, Judgment, I.C.J. Reports 1986, p. 127, para. 249).
Entitlement to take countermeasures is circumscribed by a number of
conditions and restrictions.
The most recent and authoritative attempt t o codify the rules relating
to countermeasures was made by the International Law Commission
within the framework of its topic on State Responsibility (United Nations,
Oj'ciul Records of the General Assemhly, Fifty-jrst Session, Supple-
ment. No. 10 (AI5lllO)). Some of the provisions formulated by the ILC
in this regard may be viewed as not merely codifying, but also developing
customary rules relating to countermeasures (formerly known as repri-
sals). Therefore, 1 d o not think that the Court in its assessment of the
putting into operation of Variant C as a countermeasure may be over-
reaching the requirements established by the ILC draft for a counter-
measure to be lawful.
Thus, to require that Variant C should have been the only means avail-
able in the circumstances to Czechoslovakia would amount to applying
to countermeasures the criterion which the ILC considers to be indispen-
sable for the invocation of "the state of necessity", but does not specifi-
cally mention in the text of the Articles dealing with countermeasures.
But even assuming this criterion should be applied to countermeasures
as well, what other possible legal means allegedly open to Czechoslovakia
could there be apart from countermeasures? Since the Court has found
that Czechoslovakia was not entitled to put Variant C into operation, it
should in al1 fairness have clearly indicated some other legal option o r
options whereby Czechoslovakia could effectively have asserted its rights
under the Treaty and induced its partner t o return to the performance of
its obligations. In my analysis of the case, 1 have been unable to find any
such effective alternative option available for Czechoslovakia in 1991 o r
1992.
PROJECT (DISS.OP. VERESHCHETIN)
Certainly one of the legal means according to Article 60 of the Vienna

Convention on the Law of Treaties could be the termination of the 1977
Treaty, in response to the material breach committed by the other Party.
But for Czechoslovakia would this not have amounted to bringing about
by its own hand the result which Hungary had sought to achieve by its
unlawful actions?
Another conceivable legal means might have been the formal initiation
of a dispute settlement procedure under Article 27 of the 1977 Treaty.
This Article stipulates that:
"1. The settlement of disputes in matters relating to the realiza-
tion and operation of the System of Locks shall be a function of the
government delegates.
2. If the government delegates are unable to reach agreement on
the matters in dispute, they shall refer them to the Governments of
the Contracting Parties for decision."
At the time of the proceeding to Variant C (November 1991), "the
matters in dispute" had long been in the hands of the Governments of
the contracting parties. Therefore, no settlement could realistically be
expected through a procedure at a much lower level when al1 the attempts
to reach a settlement at the highest possible intergovernmental level had
failed.
Would it be any more legally correct or, for that matter, realistic to
insist that Czechoslovakia should have come to the Court before putting
Variant C into operation in October 1992? Apart from the fact that
Czechoslovakia was not legally bound to d o so, it should be recalled that
more than four years elapsed between the filing of the Application in the
present case and the commencement of the hearings. One can easily
imagine the amount of economic and environmental damage as well as
the damage relating t o international navigation that could have been
caused by such a delay.
What should be borne in mind, however, is the fact that Czechoslova-
kia respected the obligation to negotiate prior to taking countermeasures.
The time between the first suspension of works by Hungary in May 1989
and the proceeding to Variant C in November 1991 and subsequently
putting this system into operation in October 1992 was replete with fruit-
less negotiations at different levels aimed a t finding a resolution of the
dispute (see paragraphs 61-64 of the Judgment). The history of these
negotiations clearly shows that, at least from the end of 1990, the sole
purpose of these negotiations for Hungary was the termination of the
Treaty and the conclusion of a new agreement dealing only with the con-
sequences of this termination, while for Czechoslovakia the purpose of
negotiations was the continuation and completion of the Joint Project in
some agreed form within the Treaty framework. Hungary's gradua1 with-
drawal from the Joint Project in defiance of the 1977 Treaty led to the
putting into operation of Variant C.
The basic conditions for the lawfulness of a countermeasure are (1) the
presence of a prior illicit act, committed by the State a t which the
countermeasure is targeted; (2) the necessity of the countermeasure;
and (3) its proportionality in the circumstances of the case. Certain
kinds of acts are entirely prohibited as countermeasures, but they are not
relevant to the present case (these acts being the threat or use of force,
extreme economic or political coercion, infringement of the inviolability
of diplomatie agents, derogations from basic human rights or norms
of j u s cogens).
1 believe al1 the above-mentioned conditions were met when Czecho-
slovakia put Variant C into operation in October 1992. As to the first
condition, it has been satisfied by the Court's findings that Hungary was
not entitled to suspend and subsequently abandon the works relating to
the Project or to terminate the Treaty (Judgment, para. 155, points 1 A
and D). The unilateral suspension of the works by Hungary at Nagy-
maros and at Dunakiliti (initial breaches of the 1977 Treaty by way of
non-performance) and later the abandonment of the work on the Project
occurred before November 1991 - the date when, according to the Spe-
cial Agreement, Czechoslovakia proceeded to the "provisional solution".
The illicit termination of the Treaty by Hungary (19 May 1992) preceded
the date when Czechoslovakia put Variant C into operation (October
1992 according to the Special Agreement).
Countermeasures may be seen as "necessary" only if they are aimed at
bringing about the compliance of the wrongdoing State with its obliga-
tions and must be suspended once the illicit act has ceased. This require-
ment therefore presupposes that countermeasures are reversible by nature.
In the course of the pleadings Slovakia stated and repeated over and
over again that Variant C was conceived as a provisional and reversible
solution, as an attempt to induce Hungary to re-establish the situation
which existed before its wrongful act. Significantly, the Working Group
of Independent Experts of the Commission of the European Communi-
ties, in its report of 23 November 1992, did not deny the technical feasi-
bility of the return to the Treaty Project :
"In principle, the ongoing activities with Variant C could be

reversed. The structures, excluding some of the underground parts
like sheet piling and injections, could in theory be removed. The cost
of removing the structures are roughly estimated to at least 30 per
cent of the construction costs." (Memorial of Hungary, Vol. 5,
Part 11, Ann. 14, p. 434.)
This statement confirms that, at least a t the time of the damming of the
Danube, Variant C was a reversible measure and a return to some agreed
joint scheme of the Treaty Project was possible.
The contention of Hungary regarding Czechoslovakia's hidden inten-

223 GABcIKOVO-NAGYMAROSPROJECT (DISS.OP. VERESHCHETIN)
tions t o act unilaterally - intentions which allegedly already existed in

the past and still d o may be of scant relevance to the issue of the
-
reversibility of Variant C.
The existence of such intentions at the governmental level and the
readiness to realize them would hardly be compatible with Czechoslo-
vakia's conduct after the suspension of works under the Treaty by Hun-
gary. The Government of Czechoslovakia did not seize upon the oppor-
tunity which had emerged to terminate the 1977 Treaty and to complete
the Project unilaterally, but instead tried to persuade its Hungarian
counterpart to return to the performance of its treaty obligations. At the
same time, the Government of Czechoslovakia expressed its willingness to
meet many of Hungary's environmental concerns, proposing in October
1989 negotiations on agreements relating to technological, operational
and ecological guarantees as well as to the limitation o r exclusion of the
peak mode operation of the GabCikovo-Nagymaros Barrage System. In
any event, the veracity and fairness of the public commitments of Czecho-
slovakia and Slovakia to return to the Joint Project may not be refuted
on the basis of inere conjectures, but could be tested only by the response
of Czechoslovakia and Slovakia to the positive actions by Hungary.
It remains for us to examine one more basic condition for the lawful-
ness of a countermeasure, namely its proportionality in the circumstances
of the case. It is widely recognized, in both doctrine and jurisprudence
that the test of proportionality is very important in the régime of counter-
measures and at the same time it is very uncertain and therefore complex.
T o begin with, according to the ILC:
"there is no uniformity . . . in the practice or the doctrine as to the
formulation of the principle, the strictness or flexibility of the prin-
ciple and the criteria on the basis of which proportionality should be
assessed" (United Nations, Officiul Records of the Generul Assem-
hly, Fiftieth Session, Supplement No. 10 (Ai50110), p. 146).
The ILC also observes that "reference to equivalence o r proportional-
ity in the narrow sense . . . is unusual in State practice" (ibid,p. 147).
That is why in the literature and arbitral awards it is suggested that the
lawfulness of countermeasures must be assessed by the application of
such negative criteria as "not [being] manifestly disproportionate", o r
"clearly disproportionate", 'pus hors de toute proportion"', "not out of
proportion", etc. The latter expression ("not out of proportion") was
employed by the ILC in its most recent draft on State Responsibility. The
text of the corresponding Article reads:
' In French in the original text.

220
224 GABCIKOVO-NAGYMAROS PROJECT (DISS.OP. VERESHCHETIN)
"any countermeasure taken by an injured State shall not be out of

proportion to the degree of gravity of the internationally wrongful
act and the effects thereof on the injured State" (Art. 49).
In its Commentary the Commission says that "proportionality" should
be assessed taking into account not only the purely "quantitative" ele-
ment of damage caused, but also "qualitative" factors such as the impor-
tance of the interest protected by the rule infringed and the "seriousness
of the breach" (United Nations, OfJiciul Recoruk of the General Assem-
bly, Fiftiefh Session, Supplement No. 10 (A/50110), pp. 147-148).
If we take this approach which, in my view, adequately expresses State

practice and jurisprudence, we should weigh the importance of the prin-
ciple pacta sunt servanda breached by Hungary and the concrete effects
of this breach on Czechoslovakia against the importance of the rules not
complied with by Czechoslovakia and the concrete effects of this non-
compliance on Hungary. The "degree(s) of gravity" in both cases need
not necessarily be equivalent but, to use the words of the Air Services
Agreement Award, must have "some degree of equivalence" (Interna-
tional Law Reports, Vol. 54, p. 338), or in the words of the ILC must
"not be out of proportion".
The task is not an easy one and may be achieved only by way of
approximation, which means with a certain degree of subjectivity. Weigh-
ing the gravity of the prior breach and its effects on the one hand, and the
gravity of the countermeasure and its effects on the other, the Court
should, wherever possible, have attempted in the first place to compare
like with like and should have done so with due regard to al1 the attend-
ant circumstances against the background of the relevant causes and con-
sequences. Following this approach, the Court should have assessed by
approximation and compared separately:
( 1 ) the economic and financial effects of the breach as against the eco-
nomic and financial effects of the countermeasure;
(2) the environmental effects of the breach as against the environmental
effects of the countermeasure; and
(3) the effects of the breach on the exercise of the right to use commonly
shared water resources as against the effects of the countermeasure
on the exercise of this right.
All these assessments and comparisons should have specifically been
confined to the span of time defined by the question put to the Court by
the Parties, namely November 1991 to October 1992. It should not be
forgotten that the very idea and purpose of a countermeasure is to induce
the wrongdoing State to resume performance of its obligations. The
sooner it does so the less damage it will sustain as a result of the
countermeasure.
On the first point of comparison, according to Slovakia "by May 1989,
a total of US$2.3 billion (CSK 13.8 billion) had been spent by Czecho-
slovakia on the GIN Project" (Memorial of Slovakia, para. 5.01). These
figures, which naturally d o not include the loss of energy production and
the cost of the protection, maintenance and eventual removal of the exist-
ing structures, give the idea of the economic and financial losses which
would inevitably have been sustained by Czechoslovakia in the event of a
complete abandonment of the Project.
For its part, Hungary did not, either in its written pleadings or in its
oral arguments, give any concrete figures evincing in monetary terms the
amount of actual material damage sustained as a result of Czechoslova-
kia's resort to Variant C . Hungary claimed its entitlement to the payment
by Slovakia of unspecified sums in compensation for possible future
damage, or potential risk of damage, which might be occasioned by
Variant C. Although it is true that "[n]atural resources have value that is
not readily measured by traditional means" (Reply of Hungary, Vol. 1,
para. 3.170), uncertain long-term economic losses, let alone the mere
potential risk of such losses, may not be seen as commensurable with the
real and imminent threat of having to write off an investment of such
magnitude.
In terms of comparative environmental effects, Variant C could be

seen as advantageous against the originally agreed project, due to a
smaller reservoir and the exclusion of peak mode operation. On the other
hand, in the event of the total abandonment of the project, the waterless
bypass canal and other completed but idle structures would have pre-
sented a great and long-lasting danger for the environment of the whole
region. As stated in the Judgment
"It emerges from the report, dated 3 1 October 1992, of the tripar-
tite fact-finding mission . . ., that not using the system . . . could have
given rise to serious problems for the environment." (Para. 72.)
Also, it is necessary to compare the gravity and the effects of the
breach of the 1977 Treaty by Hungary with the gravity and the effects of
the response by Czechoslovakia in terms of their respective rights to the
commonly shared water resources. Hungary and Czechoslovakia had
agreed by treaty on a scheme for common use of their shared water
resources, which use they evidently considered equitable and reasonable,
at least at the time when this agreement was reached. Both States had
made important investments for the realization of the scheme agreed
upon. At the time when one of the States (Czechoslovakia) had com-
pleted 90 per cent of its part of the agreed work, the other State (Hun-
gary) abruptly refused to continue discharging its treaty obligations. Due
to the technical characteristics of the project, Hungary thereby deprived
Czechoslovakia of the practical possibility of benefiting from the use of
its part of the shared water resources for the purposes essential for
PROJECT (DISS.OP. VERESHCHETIN)
Czechoslovakia, clearly defined in the Treaty and expressly consented to

by Hungary.
In response to this illicit act, Czechoslovakia likewise failed to act in

accordance with its obligations under the 1977 Treaty. By putting into
operation Variant C, it temporarily appropriated, on a unilateral basis
and essentially for its own benefit, the amount of water fronl which origi-
nally, according to the Treaty and the Joint Contractual Plan, both
States were entitled to benefit on equal terms. At the same time, Czecho-
slovakia reiterated its willingness to return to the previously agreed
scheme of common use and control provided that Hungary ceased vio-
lating its obligations. The possibility of a revision by agreement of the
original joint scheme was not excluded either.
In those circumstances and as long as Hungary failed to perform its

obligations under the 1977 Treaty and thus, of its own choosing, did not
make use of its rights under the same Treaty, Czechoslovakia, in prin-
ciple, by ivuy oj'a counternleasure and hence on a provisional basis, could
channel into the GabEikovo structure as much water as had been agreed
in the Joint Contractual Plan. Moreover, Article 14 of the 1977 Treaty
provided for the possibility, under a certain condition, that each of the
Parties might withdraw quantities of water exceeding those specified in
the Joint Contractual Plan (see Judgment, para. 56).
Let it be assumed, however, that in view of al1 the attendant circum-
stances and the growing environmental concerns Czechoslovakia, as a
matter of equity, should have discharged more water than it actually did
into the old river bed and the Hungarian side-arms of the Danube. This
assumption would have related to only one of the many aspects of the
proportionality of the measure in question, which could not in itself
warrant the general conclusion of the Court that Czechoslovakia was
not entitled to put Variant C into operation from October 1992.
For the reasons stated above, 1 could not vote for paragraph 155,
point 1 C, of the Judgment. Nor could 1 support paragraph 155,
point 2 D, in so far as it does not, regrettably, differentiate between the
obligation of the State which had committed a prior illicit act and that of
the State which responded by way of a countermeasure. It goes without
saying that my negative vote on paragraph 155, point 2 D , as a whole
must not be understood as a vote against the first part of this paragraph.
(Signed) Vladlen S. VERESHCHETIN.

DISSENTING OPINION O F J U D G E PARRA-ARANGUREN
1. Although 1 have voted for the operative part of the Judgment, with
the exception of paragraph 1, point C, my favourable vote does not mean
that 1 share each and every part of the reasoning followed by the majority
of the Court in reaching its conclusions.
2. 1 have voted against paragraph 1, point C, of the operative part of

the Judgment for the following reasons.
3. At the time of H u nu~ a ,r v ' ssus~ensionand later abandonment of
works, some of those works were largely completed, especially at the
GabEikovo section of the barrage system. As a result of Hungary's vio-
lations of its obligations under the 1977 Treaty, Czechoslovakia was
entitled to terminate it, according to general international law, as codi-
fied in Article 60 of the 1969 Vienna Convention on the Law of Treaties.
However, Czechoslovakia did not exercise that right and decided to
maintain the 1977 Treaty in force.
4. Nonetheless, Hungary was not willing to continue to comply with
its treaty obligations,-and the ~ u n ~ a r i aGovernment
n decided on
20 December 1990, that
"The responsible ministers and the Governmental Plenipotentiary
should start negotiations with the Government of the Czechoslovak
Federal Republic on the termination of the 1977 Treaty by mutual
consent and on the conclusion of a treaty addressing the conse-
quences of the termination." (The Hungarian Parliament ratified this
decision on 16 April 1991 - Memorial of Hungary, Vol. 4,
Ann. 153, p. 366, and Ann. 154, p. 368.)
5. As is acknowledged in the Judgment (see para. 72), the position
adopted by Hungary made the situation very difficult for Czechoslova-
kia, not only because of the huge sums invested so far, but also because
of the environmental consequences of leaving unfinished and useless
the constructions already in place and, in some sections of the barrage
system, almost complete.
6. Besides, it is easy to understand the impossibility for the Czecho-
slovak Government to justify the petition of substantial amounts of money
necessary to minimize the environmental damage and degradation of the
region, in the event that the existing constructions were left in their
unfinished state, as described by the Czechoslovak Federal Committee for
Environment in its "Technical-Economic Study on Removal of the Water
Work Gabiiikovo with the Technique of Reclaiming the Terrain",
dated July 1992 (Reply of Slovakia, Vol. II, Ann. 3).
7. For these reasons, Czechoslovakia decided to finish the works that

Hungary had yet t o complete in Czechoslovak territory, according to the
1977 Treaty, i.e., the construction of the tailrace canal of the bypass canal
and of a connecting dyke from this canal to the site of the Danube's dam-
ming close to the Dunakiliti weir (Art. 5, para. 5 ( b ) , of the 1977 Treaty).
Considering Hungary's refusal to finish the constructions it had begun, in
my opinion the decision taken by Czechoslovakia was lawful, because the
1977 Treaty was in force between the parties, and Czechoslovakia took
over Hungary's role in order to guarantee the achievement of its object
and purpose.
8. There were some other works under Hungarian responsibility to be

finished in Hungarian territory, and Czechoslovakia could not finish
them without violating the territorial sovereignty of Hungary, unless
Hungary gave its consent for the completion. Since Hungary had decided
to negotiate only the termination of the 1977 Treaty, there was no pos-
sibility of obtaining its authorization in order to finish those construc-
tions already started.
9. Faced with this situation, which came into existence because of the
internationally wrongful acts committed by Hungary by violating its
obligations under the 1977 Treaty, in my opinion Czechoslovakia was
entitled to take the necessary action, not only to realize its object and
purpose, but also to solve, in the best possible way, the ecological and
economic problems caused by the unfinished constructions. Therefore,
Czechoslovakia was legally justified in adopting the "provisional solu-
tion" referred to in Article 2, paragraph 1 ( b ) , of the Special Agreement
(hereinafter "Variant Cm),i.e., a temporary solution that could be reversed
as soon as Hungary resumed compliance with its obligations under the
1977 Treaty.
10. This temporary character was established by the European

Communities-Czechoslovakia-Hungary Report of the Working C r o u p
of lndependent Experts on Variant C of the Gabiiikovo-Nagymaros
Project, dated 23 November 1992, where it is stated that:
"In principle, the ongoing activities with Variant C could be

reversed. The structures, excluding some of the underground parts
like sheet piling and injections, could in theory be removed. The cost
of removing the structures are roughly estimated to at least 30 per
cent of the construction costs." (Memorial of Hungary, Vol. 5 ,
Part II, Ann. 14, p. 434.)
11. Variant C provided for the construction of a weir complex at
~ u n o v o 10
, kilometres up from Dunakiliti (as originally planned), with a
reservoir of reduced proportions behind, and for a new section of dykes
connecting the weir with the bypass canal and the right-side dyke on
Czechoslovak territory. Furthermore, the Danube had to be dammed;
the Project had to be put into operation, and some other ancillary struc-
tures at Cunovo were to be completed, such as navigation locks and a
hydroelectric power plant.
12. Hungary has pointed out that those are not the only differences
between Variant C and the 1977 Treaty Project, because Variant C is not
operated jointly and because Hungary was never informed, even less con-
sulted, by Czechoslovakia as to its specifications and al1 other technical
details, before and during its construction and putting into operation.
13. The Judgment follows those arguments. It remarks that

"the basic characteristic of the 1977 Treaty is, according to Article 1,
to provide for the construction of the GabCikovo-Nagymaros
System of Locks as a joint investment constituting a single and
indivisible operational system of works";
and that this
"element is equally reflected in Articles 8 and 10 of the Treaty pro-
viding for joint ownership of the most important works of the
GabEikovo-Nagymaros project and for the operation of this joint
project as a CO-ordinatedsingle unit".
Then it concludes:
"By definition, al1 this could not be carried out by unilateral
action. In spite of having a certain external physical similarity with
the original Project, Variant C thus differed sharply from it in its
legal characteristics." (See para. 77.)
14. The aforementioned conclusion overlooks the fact that Czecho-
slovakia did not exclude Hungary from the Project; on the contrary,
Hungary excluded itself of its own volition and violated the obligations
imposed upon it by the 1977 Treaty. Information, consultation, joint
operation and joint control only make sense if Hungary were willing to co-
operate but, at that time, Hungary would only consider the termination
of the 1977 Treaty. Therefore, the existing differences were the direct conse-
quence of the attitude assumed by Hungary in respect of the 1977 Treaty,
and should be considered consistent with the requirement set up by the
Judgment, because they are "within the limits of the treaty" (see para. 76).
15. In my opinion, as stated before, Czechoslovakia was entitled to
proceed as it did. The conduct of Czechoslovakia may not be character-
ized as an internationally wrongful act, notwithstanding the differences
between Variant C and the 1977 Treaty; Variant C can be justified
PROJECT (DISS.
OP. PARRA-ARANGUREN)
because of the right of Czechoslovakia to put into effect the 1977 Treaty
as best it could, when Hungary violated its treaty obligations.
16. Even though Variant C cnuld be characterized as an internation-

ally wrongful act, Czechoslovakia was entitled to take countermeasures
as a reaction to Hungary's violation of its obligations under the 1977
Treaty in suspending and later abandoning the works at Nagymaros and
GabCikovo. Article 30 of the International Law Commission's Draft on
State Responsibility, which codifies general international law, provides:
"The wrongfulness of an act of a State not in conformity with an

obligation of that State toward another State is precluded if the act
constitutes a measure legitimate under international law against that
other State, in consequence of an internationally wrongful act of
that other State."
17. Al1 the conditions required by Article 30 of the International Law
Commission's Draft on State Responsibility are met in the present case.
Variant C was conceived as a provisional and reversible solution (see
para. 10 above), which may be explained as an attempt to induce Hun-
gary to comply with its 1977 Treaty obligations and it cannot be consid-
ered a disproportionate reaction. Therefore, even assuming that the con-
struction and the putting into operation of Variant C could be charac-
terized as an internationally wrongful act committed by Czechoslovakia,
its wrongfulness would be precluded because is was a legitimate
countermeasure.
18. The Judgment takes a different view and

"considers that Czechoslovakia, by unilaterally assuming control of
a shared resource, and thereby depriving Hungary of its right to an
equitable and reasonable share of the natural resources of the Dan-
ube - with the continuing effects of the diversion of these waters on
the ecology of the riparian area of the Szigetkoz - failed to respect
the proportionality which is required by international law" (see
para. 85).
19. However, "the withdrawal of water from the Danube" is regulated
by Article 14 of the 1977 Treaty. Not only Article 14 but also al1 the
Treaty provisions that may support the conduct of Czechoslovakia, con-
tinued by Slovakia, have to be applied to determine whether or not it was
lawful, since the Judgment acknowledges that the 1977 Treaty and related
instruments are in force between the parties.
20. In my opinion, it is not necessary to choose between the aforemen-

tioned grounds to justify the action undertaken by Czechoslovakia, con-
tinued by Slovakia, because the juridical consequences are the same, Le.,
the building and putting into operation of Variant C was not an interna-
tionally wrongful act committed by Czechoslovakia; and Slovakia, as its
sole successor State, has not committed any internationally wrongful act
in operating Variant C to date.
21. A substantial number of Judges, myself among them, asked for a

separate vote on each of the two issues included in paragraph 2, point D,
of the operative part of the Judgment. However, the majority decided,
severely curtailing freedom of expression, to force a single vote on both
questions, based upon obscure reasons which are supposed to be covered
by the confidentiality of the deliberations of the Court.
22. Since there was n o other choice left, 1 reluctantly decided to vote
in favour of paragraph 2, point D, notwithstanding my opinion that the
building and putting into operation of Variant C was not an internation-
ally wrongful act committed by Czechoslovakia; and that Slovakia, as its
sole successor State, has not committed any internationally wrongful act
in maintaining its operation to date. My decision can only be explained
as a way out of the dilemma confronted by me because of the determina-
tion adopted by the majority of the Court, in a very peculiar way, and
shall be understood within the context of the 1977 Treaty, and related
instruments, i.e. by applying Article 14, paragraph 3, of the 1977 Treaty,
in the event "that the withdrawal of water exceeds the quantities of water
specified in the water balance of the approved joint contractual plan".
However, in principle, Slovakia shall not compensate Hungary on account
of the putting into operation of Variant C by Czechoslovakia and by its
maintenance in service by Slovakia, unless a manifest abuse of rights on
its part is clearly evidenced.
23. In my opinion, paragraph 2, point A, of the operative part of the
Judgment should not have been included, because the succession of Slo-
vakia to the 1977 Treaty was neither a question submitted to the Court in
the Special Agreement nor is it a legal consequence arising out of the
decision of the questions submitted by the Parties in its Article 2,
paragraph 1. Furthermore, the answer of the Court is incomplete since
nothing is said with respect to the "related instruments" to the 1977
Treaty; and it does not take into consideration the position adopted by
the dissenting judges who maintained that the 1977 Treaty was n o
longer in force.
(Signed) Gonzalo PARRA-ARANGUREN.

DISSENTING OPINION O F J U D G E SKUBISZEWSKI
1. While agreeing with the Court in al1 its other holdings, 1 am unable
to concur in the broad finding that Czechoslovakia was not entitled to
put Variant C into operation from October 1992 (Judgment, para. 155,
point 1 C). The finding is too general. In my view the Court should have
distinguished between, on the one hand, Czechoslovakia's right to take
steps to execute and operate certain works on its territory and, on the
other, its responsibility towards Hungary resulting from the diversion of
most of the waters of the Danube into Czechoslovak territory, especially
in the period preceding the conclusion of the 1995 Agreement (Judgment,
para. 25).
2. In proposing to Czechoslovakia the revision of the Treaty, Hun-

gary, for some time, did not exclude the possibility of an arrangement
that would maintain, in one form or another, the System of Locks
(Article 1 of the Treaty). But the subsequent abandonment of the works
was a clear indication of where Hungary was heading. Even when it first
proposed a postponement of the works it was aiming at abolishing the
Project. That was the heart of the matter. On 22 May 1990, the Prime
Minister of the newly democratic Hungary put it in a nutshell by describ-
ing the whole Project as "a mistake" (Memorial of Hungary, Vol. 1,
p. 64, para. 3.1 10). Hungary wanted to extricate itself from that "mis-
take". This is the basic fact of the case. The mass of scientific and tech-
nological information that has been submitted to the Court and the maze
of legal argumentation should not cause that basic fact to be lost: it was
Hungary, and Hungary alone, which, from a certain moment on, fol-
lowed a policy of freeing itself from the bonds of the Treaty. Czechoslo-
vakia, on its part, insisted on the implementation of the Treaty, though it
was ready to adopt a flexible attitude with regard to some aspects of the
operation of the System of Locks, for example with regard to the limita-
tion or exclusion of the peak power operation mode or the objectively
verified environmental needs.
3. This difference in the stance and the actions of the two Parties with
regard to the Treaty should not be blurred. T o simply Say that, in fact,
the two contracting States (and not only one of them, Le., Hungary) con-
formed to rules other than those laid down by the Treaty does not cor-
233 GAB~IKOVO-NAGYMAROSPROJECT (DISS.OP. SKUBISZEWSKI)
respond to legal reality. In particular, chronology cannot be dismissed as

irrelevant. Hungarian doubts and reservations about and, finally, Hun-
gary's withdrawal from the Project have not only preceded Variant C,
but constituted its cause. Without an earlier suspension and abandon-
ment of the works by Hungary there would have been no Variant C. Nor
can it be said that Variant C excluded Hungary from the Project. The
fact is that Hungary excluded itself, having lost al1 interest in the main-
tenance of the Project. Also, Czechoslovakia and subsequently Slovakia
were prepared to CO-operatewith Hungary in respect of Variant C which
they regarded as a provisional solution.
4. The documentation submitted in these proceedings does not sup-

port the view that the two States actually displayed the same intention of
withdrawing from the Treaty. Prior to and also after the Hungarian dec-
laration of termination, Czechoslovakia did not express any such inten-
tion. Variant C maintained some important aims of the joint investment:
production of energy, flood prevention, and improvement of navigation.
Where it deviated from the Project, it did not put any definitive bar to a
return to the original concept of the Treaty. There was no tacit consent to
the extinction of the Treatv on the Dart of Czechoslovakia. That countrv
no longer exists, but Slovakia (as its successor) still postulates the imple-
mentation of the Treaty (Judgment, para. 14).
5. When Czechoslovakia and Hungary were negotiating and conclud-

ing 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 environ-
mental risks and were willing to meet them. In the 1970s, when the
Treaty was being negotiated, the state of knowledge was sufficient to per-
mit 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,
n o 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 Dan-
ube 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
PROJECT (DISS.OP. SKUBISZEWSKI)
during the period 1989 to 1992 Hungary progressively repudiated them.

It thus created a n estoppel situation for itself.
7. The withdrawal of Hungary from the Project left Czechoslovakia

with the possibility of doing on its territory what it was allowed to d o by
zeneral law. In the circumstances of the d i s ~ u t esubmitted to the Court
u
action based on general law does not derogate from the binding force of
the Treaty. The shift ont0 the plane of general law results from the Hun-
garian rejection of the Project. There was, actually, n o "single and indi-
visible operational system of works" (Art. 1, para. 1, of the 1977 Treaty)
in which first Czechoslovakia and subsequently Slovakia could partici-
pate. The conduct of Hungary led t o a factual situation which, as long as
it lasted, prevented the implementation of binding agreements. A full
application of the Treaty required bilateral action. Thus, for the time
being, the treaty relationship of the two States found itself in a state of
abeyance o r inactivity. As the objectives of the Treaty did not disappear,
a temporary solution would be based on general law and equity, until
there was a return to the bilateral enforcement of the Treatv. That is the
essence of the concept of the Czechoslovak "provisional solution", main-
tained bv Slovakia.
8. In the present case one should draw a distinction between, on the
one hand, the "provisional solution" which, as a whole, is lawful, espe-
cially under the existing circumstances (i.e., the advanced stage of com-
pletion of the works on Czechoslovak territory at the beginning of the
1990s), and, on the other, one element of the implementation of that
solution that calls for redress and remedy; that element is the sharing of
the waters of the Danube. It is not enough to dismiss the Slovak argu-
ments (that is, the principle of approximate application; the duty to miti-
gate damages; and, as a possibility, the plea of countermeasures, Judg-
ment, paras. 75-87). The situation is more complex. A legal evaluation of
Variant C cannot be limited to the Treaty alone. As a result of Hungar-
ian action, the implementation of the Treaty became paralysed. Czecho-
slovakia responded by putting into effect its "provisional solution". In
the proceedings before the Court Slovakia's emphasis was on what
1 would term as the Treaty approach. But Slovakia has also referred,
though in a somewhat subsidiary mannes, to general law. Under that
law, as applied by the Court, Slovakia bears responsibility for withhold-
ing from Hungary that part of the Danube's waters to which the latter
was entitled. By saying that Hungary did not forfeit "its basic right to an
equitable and reasonable sharing of the resources of an international
watercourse" the Court applies general law (Judgment, para. 78). The
Court likewise applies general law (cf. para. 85) when, in particular, it
refers to the concept of the "community of interest in a navigable river",
as explained by the Permanent Court in the case relating to the Tervito-
235 GABCKKOVO-NAGYMAROSPROJECT (DISS.OP. SKUBISZEWSKI)
rial Jurisdiction of the International Commission of' the River Oder,

(Judgment No. 16, 1929, P.C. I. J., Series A, No. 23, p. 27). The canon of
an equitable and reasonable utilization figures prominently in the recent
United Nations Convention on the Law of the Non-Navigational Uses of
International Watercourses, especially in its general principles (Arts. 5-10).
9. The Award in the case of Lake Lanoux between Spain and France
states the law which is relevant to the evaluation of Variant C, though for
various reasons that case must be distinguished from the case before the
Court. In the Lake Lanoux case, the Arbitral Tribunal considered the
question whether the French development scheme for Lake Lanoux
(involving the diversion of waters) required, for its execution, a prior
agreement between the two Governments, in the absence of which the
country proposing the scheme would not have freedom of action to
undertake the works (Reports of International Arbitral Awurds ( R I A A ) ,
Vol. X I I , p. 306, para. 10; Internutional Law Reports ( I L R ) , Vol. 24,
1957, p. 127, para. 10).
10. The Tribunal said:
"In effect, in order to appreciate in its essence the necessity for

prior agreement, one must envisage the hypothesis in which the
interested States cannot reach agreement. In such case, it must be
admitted that the State which is normally competent has lost its
right to act alone as a result of the unconditional and arbitrary
opposition of another State. This amounts to admitting a 'right of
assent', a 'right of veto', which at the discretion of one State para-
lyses the exercise of the territorial jurisdiction of another.
That is why international practice prefers to resort to less extreme
solutions by confining itself to obliging the States to seek, by prelimi-
nary negotiations, terms for an agreement, without subordinating the
exercise of their competences to the conclusion of such an agreement.
Thus, one speaks, although often inaccurately, of the 'obligation of
negotiating an agreement'. In reality, the engagements thus under-
taken by States take very diverse forms and have a scope which var-
ies according to the manner in whiclythey are defined and according
to the procedures intended for their execution; but the reality of the
obligations thus undertaken is incontestable and sanctions can be
applied in the event, for example, of an unjustified breaking off of the
discussions, abnormal delays, disregard of the agreed procedures,
systematic refusals to take into consideration adverse proposals or
interests, and, more generally, in cases of violation of the rules of
good faith (Tucna-Arica Arbitration: Reports of International Arbi-
tral A~ilurds,Vol. II, pp. 921 et seq.; Case of Ruilway Trujjïc betbveen
Lithuaniu and Polund: Advisory Opinion, 1931, P. C.I. J., Series A/B,
No. 42, pp. 108 et seq.)." ( R I A A , Vol. XII, p. 306, para. 1 1 ; ILR,
Vol. 24, 1957, p. 128, para. 1 1 ; footnotes omitted.)
236 GABCIKOVO-NAGYMAROSPROJECT (DISS.OP. SKUBISZEWSKI)
Czechoslovakia has fulfilled its obligation to negotiate a revision of the

Treaty. But a revision is something different from the refusal to imple-
ment that Treaty. Faced with such a refusal on the part of Hungary
Czechoslovakia could act alone, without any prior consent by Hungary,
while respecting the latter's right to an equitable and reasonable share of
the Danube's waters. But in evaluating whether Czechoslovakia has
respected that right one must not forget that the said share has increased
in 1995, and that the water appropriated by Czechoslovakia and subse-
quently used by Slovakia does not serve Slovakia's interests alone, but
also Hungary's. The operation of Variant C improved navigation on the
Danube and enhanced flood protection.
11. In the Luke Lunoux case the Tribunal expressed its position on the
right of each riparian State to act unilaterally in the following terms:
"In fact, States are today perfectly conscious of the importance of

the conflicting interests brought into play by the industrial use of
international rivers, and of the necessity to reconcile them by mutual
concessions. The only way to arrive at such compromises of interests
is to conclude agreements on an increasingly comprehensive basis.
International practice reflects the conviction that States ought to
strive t o conclude such agreements: there would thus appear to be
an obligation to accept in good faith al1 communications and con-
tracts which could, by a broad comparison of interests and by recip-
rocal good will, provide States with the best conditions for conclud-
ing agreements. . . .
But international practice does not so far permit more than the
following conclusion: the rule that States may utilize the hydraulic
power of international watercourses only on condition of a prior
agreement between the interested States cannot be established as a
custom, even less as a general principle of law. The history of the
formulation of the multilateral Convention signed at Geneva
on December 9, 1923, relative to the Development of Hydraulic
Power Affecting More than One State, is very characteristic in this
connection. The initial project was based on the obligatory and
paramount character of agreements whose purpose was to harness
the hydraulic forces of international watercourses. But this formula-
tion was rejected, and the Convention, in its final form, provides
(Article 1) that '[it] in no way alters the freedom of each State, within
the framework of international law, to carry out on its territory al1
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." ( R I A A , Vol. XII, p. 308,
para. 13; I L R , Vol. 24, 1957, p. 129, para. 13; footnote omitted.)
1 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 GabEikovo complex into operation. It also had
the duty to respect Hungary's right to an equitable and reasonable share
of the waters of the Danube.
12. In rejecting, in the Luke Lunoux case, the necessity of a prior
agreement between the interested States on the utilization of the hydrau-
lic power of international watercourses the Tribunal referred to the
"most general principles of international law" according to which:
"It is for each State to evaluate in a reasonable manner and in
good faith the situations and the rules which will involve it in con-
troversies; its evaluation may be in contradiction with that of another
State; in that case, should a dispute arise the Parties normally seek
to resolve it by negotiation or, alternatively, by submitting to the
authority of a third party; but one of them is never obliged to sus-
pend the exercise of its jurisdiction because of the dispute except
when it assumes an obligation to d o s o ; by exercising its jurisdiction
it takes the risk of seeing its international responsibility called into
question, if it is established that it did not act within the limits of its
rights." ( R I A A , Vol. XII, p. 310, para. 16; I L R , Vol. 24, 1957,
p. 132, para. 16.)
13. This seemed to be, mlitutis mutundis, the position of Czechoslo-
vakia. It could act, but it had to respect certain rights of Hungary. In
the Luke Lunoux case, the Tribunal said that, carrying matters to
extremes, the requirement of prior agreement
"would imply either the general paralysis of the exercise of State
jurisdiction whenever there is a dispute, or the submission of al1 dis-
putes, of whatever nature, to. the authority of a third party; interna-
tional practice does not support either the one or the other of these
consequences" (loc. cit.) .
14. Concerning the said possibility of a unilateral suspension of works
the Tribunal added:
"Further, in order for negotiations to proceed in a favourable
climate, the Parties must consent to suspend the full exercise of
their rights during the negotiations. It is normal that they should
enter into engagements to this effect. If these engagements were to
bind them unconditionally until the conclusion of an agreement, they
would, by signing them, lose the very right to negotiate; this cannot
be presumed.
It is important to keep these considerations in mind when drawing
legal conclusions from diplomatic correspondence." ( R I A A ,
Vol. XII, p. 31 1, para. 18; I L R , Vol. 24, 1957, p. 134, para. 18.)
15. Finally, it is worthwhile to note the following statement of the
Tribunal :
"France is entitled to exercise her rights; she cannot ignore
Spanish interests.
Spain is entitled to demand that her rights be respected and that
her interests be taken into consideration.
As a matter of form, the upstream State has, procedurally, a right
of initiative; it is not obliged t o associate the downstream State in the
elaboration of its schemes. If, in the course of discussions, the down-
Stream State submits schemes to it, the upstream State must examine
them, but it has the right to give preference to the solution contained
in its own scheme provided that it takes into consideration in a rea-
sonable manner the interests of the downstream State." (RIAA,
Vol. XII, p. 316, para. 23; ILR, Vol. 24, 1957, p. 140, para. 23.)
III
16. In paragraph 72 of its Judgment the Court makes clear that it is
aware of the serious problems with which Czechoslovakia was con-
fronted as a result of Hungary's action. That is another reason for dis-
tinguishing between various elements of Variant C. Having said what it
did the Court should have made a step further and applied equity as part
of international law. It would then have arrived at a holding that would
have given more nuance to its decision.
17. In the case relating to the Diversion of Water from the Meuse
Judge Hudson observed :
"It would seem to be an important principle of equity that where
two parties have assumed a n identical or a reciprocal obligation, one
party which is engaged in a continuing non-performance of that
obligation should not be permitted to take advalitage of a similar
non-performance of that obligation by the other party.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The general principle is one of which an international tribunal
should make a very sparing application. It is certainly not to be
thought that a complete fulfilment of al1 its obligations under a
treaty must be proved as a condition precedent to a State's appear-
ing before an international tribunal to seek an interpretation of that
treaty. Yet, in a proper case, and with scrupulous regard for the limi-
tations which are necessary, a tribunal bound by international law
ought not to shrink from applying a principle of such obvious fair-
ness." (P.C.I. J., Serics A/B, No. 70, Judgment, 1937, p. 77.)
18. The foregoing quotation does not mean that one may close one's
eyes to the differences between the Diversion of Water from the Meuse
case and the present case. According to Judge Hudson the two locks (Le.,
the one operated by the Netherlands and the one operated by Belgium)
were in law and in fact in the same position. "This seems to cal1 for an
application of the principle of equity stated above" (P.C.I.J., Series A/B,
No. 70, Judgment, 1937, p. 78). But the more complex facts in the present
case d o not by themselves eliminate the relevance of the learned judge's
opinion.
19. The impossible situation in which Hungarian action put Czecho-
slovakia speaks strongly in favour of the application of equitable prin-
ciples by the Court in evaluating Variant C. For "[elquity as a legal con-
cept is a direct emanation of the idea ofjustice. . . . [Tlhe legal concept of
equity is a general principle directly applicable as law" (Continental S h e y
( Tunisia/Lihyun Arah Jarnuhiriyu), Judgtncnt, I. C.J. Reports 1982,
p. 60, para. 71). The Court's "decisions must by definition be just, and
therefore in that sense equitable" (North Secl Continental Shelf; Judg-
ment, I. C.J. Reports 1969, pp. 48-49, para. 88). "[Aln equitable solution
derive[s] from the applicable law" (Fisherics Juri.sdiction, Mrrits, Judg-
ment, I.C.J. Reports 1974, p. 33, para. 78; p. 202, para. 69). Both "the
result to be achieved and the means to be applied to reach the result"
must be equitable. "It is, however, the result which is predominant; the
principles are subordinate to the goal" (Contzrzental Shelf (Tunisia/
Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 59,
para. 70).
20. In its resolution of 1961 on the utilization of non-maritime inter-
national waters the Institute of International Law has stated (Art. 3):
"If the States are in disagreement over the scope of their rights of
utilization [of the said waters], settlement will take place on the basis
of equity, taking particular account of their respective needs, as well
as of other pertinent circurnstances." (Annuaire de l'Institut de droit
international, 1961, Vol. I I , p. 382.)
21. The degree t o 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 indefi-
nitely the operation of the bypass canal, the GabCikovo hydroelectric
power plant, navigation locks -and appurtenances thereto, in so far as
that operation was possible without Hungarian CO-operationor partici-
pation. T o find, as the Court does, that such operation is unlawful over-
looks 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.
22. A State that concluded a treaty with another State providing for
the execution of a project like GabCikovo-Nagymaros cannot, when that
project is near completion, simply Say that al1 should be cancelled and the
240 GABcIKOVO-NAGYMAROS PROJECT (DISS.OP. SKUBISZEWSKI)
only remaining problem is compensation. This is a situation where, espe-

cially under equitable principles, the solution must go beyond mere pecu-
niary compensation. The Court has found that the refusa1 by Hungary to
implement the Treaty was unlawful. By breaching the Treaty, Hungary
could not deprive Czechoslovakia and subsequently Slovakia of al1 the
benefits of the Treaty and reduce their rights to that of compensation.
The advanced stage of the work on the Project made some performance
imperative in order to avoid harm: Czechoslovakia and Slovakia had the
right to expect that certain parts of the Project would become operational.
23. Thus, pecuniary compensation could not, in the present case, wipe out
even some, not to speak of all, of the consequences of the abandonment
of the Project by Hungary. How could an indemnity compensate for the
absence of flood protection, improvement of navigation and production
of electricity? The attainment of these objectives of the 1977 Treaty was
legitimate not only under the Treaty but also under general law and
equity. The benefits could in no way be replaced and compensated by the
payment of a sum of money. Certain works had to be established and it
was vital that they be made operational. For the question here is not one
of damages for loss sustained, but the creation of a new system of use and
utilization of the water.
24. Once a court, whether international or municipal, has found that a

duty established by a rule of international law has been breached, the
subject to which the act is imputable must make adequate reparation.
The finding in point 2 D of the operative paragraph is the consequence of
the holdings in point 1. Absence of congruence between the vote on one
or more of the findings in point 1 and the vote on point 2 D should be
explained in order that any implication of an uncertainty regarding the
foregoing principle on reparation may be eliminated.
25. The formulation of the finding in point 1 C of the operative para-

graph does not correspond to the possibility of different evaluations con-
cerning the various elements of the "provisional solution". There is
equally no reflection of that possibility in the formulation of the finding
in point 2 D. Indeed, the terms of that point made the position of those
judges who voted against point 1 C quite difficult. The same applies to
point 2 D when a judge does not agree with al1 the findings in point 1,
though 1 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 1 have voted in favour of the finding in point 2 D. However, there is
a further reason which made it possible for me to accept that finding.
That reason is linked to the task of the Court under Article 2, para-
graph 2, of the Special Agreement and the ensuing negotiations of the
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-
15 1) need not be a primary factor in the negotiations on the future of the
Gabëikovo-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 t o what 1 would describe as the "zero
option" (para. 153 of the Judgment). In my view the underlying message
of point 2 D to the negotiating Governments is that, notwithstanding
their legal claims and counterclaims for compensation, they should seek
- and find - a common solution.
(Signed) Krzysztof SKUBISZEWSKI.

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INTERNATIONAL COURT O F JUSTICE

JUDCMENT OF 25 SEPTEMBER 1997

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRÊTS,

AFFAIRE RELATIVE AU PROJET

ARRÊT DU 25 SEPTEMBRE 1997

Mode officiel de citation:

1997 YEAR 1997

Treaty of 16 September 1977 concerning the construction and operation of

Legal consequences of the Judgment of the Court - Dissolution of Czecho-

Irregular state of uffairs as a result of failure of both Parties to comply with

Present: President SCHWEBEL;Vice-President WEERAMANTRY; Judges ODA,

In the case concerning the GabCikovo-Nagymaros Project,

Mr. Boldizsar Nagy, Associate Professor of International Law, Eotvos

as Counsel and Advocates;

Mr. Jens Christian Refsgaard, Head of Research and Development, Danish

Dr. Peter VrSansky, Minister-Counsellor, Chargé d'affaires a.i.,of the

"The Republic of Hungary and the Slovak Rcpublic,

(3) This commitment is accepted by both Parties as fundamental to the

6. By an Order dated 20 December 1994, the President of the Court,

Reyuests the Court to rrdjudge and declare

Tizird, that by its Declaration of 19 May 1992, Hungary validly termi-

Rrqzre.~tsthe Court to adjzldge and declare furtller

15. T h e present case arose o u t of the signature, o n 16 September 1977,

resources, energy, transport, agriculture and other sectors of the

The joint investment was thus essentially aimed at the production of

Only by international CO-operationcould action be taken to alleviate

18. Article 1, paragraph 1, of the 1977 Treaty describes the principal

"Operations connected with the realization of the joint investment

According to Article 14,

Paragraph 3 of that Article was worded as follows:

It was stipulated in Article 19 that:

On 23 July 1991, the Slovak Government decided "to begin, in Sep-

to the Czechoslovak Government a Note Verbale terminating the 1977

24. O n 23 October 1992, the Court was seised of an "Application of

26. The first subparagraph of the Preamble to the Special Agreement

27. The Court will now turn to a consideration of the questions

( 6 ) the Dunakiliti dam and auxiliary navigation lock at r.km.

( 6 ) series of locks at r.km. 1696.25, in Hungarian territory, con-

29. Moreover, the precise breakdown of the works incumbent on each

(b) The Hungarian Party shall be responsible for

"the Ministers concerned to commission further studies in order to

the above, we must examine the international and legal conse-

These assurances were reiterated in a letter that the Commissioner of the

ensue for certain, therefore, according t o their recommendation,

36. The Hungarian and Czechoslovak Prime Ministers met again on

In the meantime, the Hungarian Government had on 27 October

Hungary contended that the various installations in the GabEikovo-

According to Hungary, the principal ecological dangers which would

Thus the Vienna Convention of 1969 on the Law of Treaties confines

bility provisionally adopted by the International Law Commission on

It concluded that "the notion of state of necessity is . . . deeply rooted in

The Commission, in its Commentary, indicated that one should not, in

"the environment is not an abstraction but represents the living

54. The verification of the existence, in 1989, of the "peril" invoked by

As the Court has already indicated (see paragraphs 33 et seq.),

The Court considers, however, that, serious though these uncertainties

With regard to the lowering of the riverbed downstream of the Nagy-

hended had primarily to be the result of some relatively slow natural