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PACTA SUNT SERVANDA dam at Dunakiliti.

The Treaty also provided that the technical specifications for the
Gabcikovo-Nagymaros Project (Hungary v. Slovakia) system be included in the "Joint Contractual Plan" (JCP) to be drawn up.
5. The treaty also provided that the cost of the joint investment will be borne by the
In 1977, Hungary and Czechoslovakia entered into a treaty ("1977 Treaty) concerning the parties in equal measure. Moreover, it stipulated work to be carried out by each one of
construction and operation of the Gabcikovo-Nagymaros System of Locks (essentially to them.
construct a barrage system (like a dam) ("GN project"). This project was designed so both 6. The treaty also stated that the JCP would specify a water balance to be measured
countries could utilize the Bratislavia-Budapest section of the Danube river essentially for (i.e. sharing of water in the Danube by both states).
hydroelectricity. Unfortunately, due to criticisms regarding the joint project, Hungary was 7. In the event that the water level becomes imbalanced, share of electric power of the
constrained to suspended and then eventually abandon its part. Czechoslovakia tried to parties benefitting from the excess withdrawal of water shall be reduced.
propose provisional solutions, but the two countries could not come to an agreement. 8. The treaty also stated that the parties should ensure that the quality of the water in the
Finally, the Hungarian Government sent a Note Verbale terminating the 1977 treaty to take Danube is not impaired as a result of the construction of the GN project.
effect within 6 days. Constrained, Czechoslovakia decided to implement and subsequently 9. The work started on Hungary's initiative, but the two parties subsequently agreed
operate its "Variant C" solution to prevent it from sustaining further losses. The through two Protocols signed to slow the work down and postpone the operation of
Commission on European Communities mediated and the parties principally agreed to the power plants.
submit the dispute to the International Court of Justice. 10. Then, by another Protocol, both parties agreed to accelerate the project.
11. There were profound political and economic changes during this time in Europe and
DOCTRINE the project became an increasing apprehension for both Hungary and
Bear in mind that during the time the case was being undertaken by the ICJ, Czechoslovakia. The uncertainties were both about the economic viability of the
Czechoslovakia has already constructed and operated its "Variant C" solution, which project and the ecological impact of the same.
included the construction at Cunovo, effectively acting as a replacement for what should 12. Thus, due to intense criticism the project generated, particularly in Hungary, the
have been constructed by Hungary in Dunakiliti. The filling of the Cunovo dam led to a Hungarian Government decided to suspend the works at Nagymaros pending
reduction in the flow of water to the old Danube bed and of the side-arms of the river completion of various studies. They also subsequently suspended the works at
(obviously affecting Hungary). This means that the 1977 Treaty cannot anymore be Dunakiliti. Eventually they decided to abandon works at Nagymaros while maintaining
followed to the letter since a different factual situation now exists. On the basis of the status quo at Dunakiliti
Court's findings, the ICJ, in determining the future conduct of the parties held: 13. Negotiations were being held during this period between the parties, while
Czechoslovakia also started investigating alternative solutions (7 in total), one of
"It is not for the Court to determine what shall be the final result of these negotiations to be which was "Variant C" ("VC").
conducted by the parties. It is for them to find an agreed solution that takes account of the 14. VC entailed a unilateral diversion of the Danube by Czechoslovakia and a
objectives of the Treaty which must be pursued in a joint and integrated way, keeping in construction of a dam at Cunovo (Czechoslovakian territory) to essentially function as
mind the norms of international law. What is required in the present case by the rule a replacement for the Dunakiliti portion which Hungary suspended. Of course,
pacta sunt servanda, as reflected in Art. 26 of the Vienna Convention of 1969, is that the Czechoslovakia protested to this.
parties find an agreed solution within the co-operative context of the Treaty. Article 15. In addition to this, the political situation in both states changed and new Governments
26 combines two elements, which are of equal importance, providing that "every treaty in were confronted with new problems.
force is binding upon the parties to it and must be performed by them in good faith." This 16. In 1991, the Slovak Government (Czechoslovakia is now a federal government with
latter element, implies that in this case, it is the purpose of the Treaty and the intentions Czech and Slovakia as states) decided to begin construction of VC.
of the parties concluding it which should prevail over its literal application. 17. Discussions continued between the states but to no avail.
18. In 1992, Hungary transmitted a Note Verbale terminating the 1977 Treaty with effect
What is essential is that the developing treaty relationship be preserved, and be conducted after a mere six days from receipt of Czechoslovakia of the note.
to achieve its object and purpose in so far as that is feasible. The parties are under a legal 19. Through the mediation of the Commission of the European Communities (which was
obligation to consider within the context of the 1977 Treaty, in what way the multiple the old EU) the parties principally agreed that the dispute be submitted to the ICJ.
objectives of the Treaty can best be served, keeping in mind that all of them should be 20. In 1993 Slovakia became an independent state. Slovakia and Hungary entered into a
fulfilled, for their mutual benefit. Special agreement concerning the GN project and agreed to establish a temporary
water regime which they agreed on after a number of negotiations, while the case was
FACTS still with the ICJ.
1. The Danube has always been important for the commercial and economic
development of its riparian States. ISSUE with HOLDING
2. The potential of the Danube for hydroelectric power has been exploited by some 1. Whether Hungary validly terminated the 1977 Treaty through its Note Verbale. NO.
states and it is against this backdrop that the 1977 Treaty between Hungary and then It was premature. The 1977 Treaty is still in force.
Czechoslovakia was signed. a. Hungary claimed that it was due to Czechoslovakia's construction and
3. The project would be jointly owned in equal measure by both parties and ownership operation of Variant C that its alleged "state of necessity" was made
would be vested on the State on whose territory the works were constructed. permanent which justified the termination of the 1977 treaty.
4. Hungary would have control over the works at Nagymaros while Czechoslovakia i. The Court agreed with Czechoslovakia in that even of such a state
would have control over the Gabcikovo area. In addition, Hungary was to construct a of necessity existed, it would not give rise to a right to terminate

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the 1977 Treaty. The state of necessity may only be invoked to iii. In addition, such "state of necessity" would not exempt it from its
exonerate Hungary from its responsibilities which it failed to duty to compensate the other party it only provides Hungary a
implement, but it does not in any way give it any right to terminate justifying circumstance in acting the way it did.
the Treaty. b. Hungary also accused Czechoslovakia of violating various provisions of the
ii. The Treaty may be ineffective as long as the condition of alleged treaty.
"state necessity" continues to exist, but, unless the parties by i. The ICJ held that it does not need to examine this argument.
mutual agreement terminate the Treaty, it continues to exist, albeit c. Hungary also contended that the Law of Treaties should not be applied to
dormant. the current case since it came into force after the 1977 treaty was
iii. The same can be said of the "impossibility of performance" by concluded.
Hungary of its obligations due to Czechoslovakia's acts. These i. Court held that some of the rules laid down in the Law of Treaties
situations may be a ground for suspending a treaty but not a might be considered as a codification of existing customary law.
ground for termination. ii. This applies to the provisions regarding termination and
iv. The ICJ also held that the 1977 treaty was broad enough to allow suspension of the operation of treaties (Articles 60 to 62)
enough legroom for the parties to amend and adjust the regime to iii. The parties in this case were also broadly in agreement as regards
reflect economic and ecological imperatives. the foregoing.
v. In the Court's view, the prevalent political, economic and ecological
conditions were not so closely linked to the object and purpose of 3. Whether the Czech and Slovak Federal Republic was entitled to proceed with its
the Treaty that they constituted an essential basis of the mutual "provisional solution" i.e. Variant C, and to put it into operation. YES to undertaking
consent of the parties to conclude the Treaty. the works of Variant C, but NO to its operation. Czechoslovakia decided to put
vi. Moreover, the ICJ is of the view that it is only a material breach of the VC into operation unilaterally, exclusively under its own control and for its
the treaty by a State party to that treaty, which entitles the other own benefit, to the detriment of Hungary. This effectively violated express
party to rely on it as a ground for terminating the treaty. Moreover, provisions of the 1977 Treaty, depriving Hungary of its basic right to an
Hungary only provided SIX DAYS for the termination of the Treaty, equitable and reasonable sharing of the resources of the Danube. Nevertheless,
which is not in accordance with international custom. Czechoslovakia was entitled to construct Variant C, in so far as it confined itself
b. Hungary claimed that it was entitled to terminate the Treaty because new to undertaking works which did not predetermine the final decision to be taken
requirements of international law for the protection of the environment by it. The same could not be considered as a countermeasure as it is not in
precluded performance of the treaty. accordance to the international law concept of proportionality (i.e. what
i. The ICJ held that the Treaty provided evolving provisions Czechoslovakia did was not proportional to what Hungary did).
recognizing the potential necessity to tweak the project to adapt. a. Czechoslovakia maintained that their action of proceeding with Variant C
The environmental norms can be incorporated in the JCP. and its implementation were not internationally wrongful acts because
ii. The responsibility to do this is a joint responsibility. Their Hungary's decision made it impossible for them to carry out works as
implementation requires a mutual willingness to discuss in contemplated by the 1977 Treaty. Slovakia also invoked the "principle of
good faith actual and potential environmental risks. approximate application"
i. The ICJ distinguished between the "actual commission of a
2. Whether Hungary was entitled to suspend and subsequently abandon the works on wrongful act" and the conduct prior to that act which is of a
the project. NO. There was no "state of necessity" (see Art. 33 of International preparatory character (the latter does not qualify as a wrongful
Responsibility of States) that would entitle Hungary to validly suspend and act).
abandon the works. There is no "grave and imminent peril" as regards the ii. In relation to this, the ICJ held that proceeding to Variant C was a
ecological effects of the project as Hungary would have wanted the ICJ to preparatory act which was reasonable, considering the losses that
believe. Czechoslovakia incurred due to Hungary's unilateral abandonment
a. Hungary contended that though it suspended and abandoned works, it of its Treaty obligations.
never suspended the application of the 1977 Treaty itself, justifying its iii. However, the operation of Variant C was an internationally unlawful
conduct on a "state of ecological necessity." act as it deprived Hungary of its rights to a just sharing of the
i. Court cannot accept this argument. Hungary's conduct during that resources as prescribed by the 1977 Treaty.
time showed its unwillingness to comply with some of the b. Slovakia also argued in the alternative that Czechoslovakia's conduct was
provisions of the Treaty and the subsequent Protocol. This lawful in that it was a countermeasure against Hungary's infractions.
rendered impossible the accomplishment of the GN project. i. The ICJ held that it was not a justifiable countermeasure as it did
ii. The Court also held that the fact that Hungary invoked the doctrine not meet the condition of proportionality.
of "state of necessity" shoed that it chose to place itself within the
ambit of the law of State responsibility i.e. that without this 4. Whether Slovakia properly succeeded Czechoslovakia. YES. The Articles on
"necessity" Hungary's actions would have been unlawful. Succession of States identified "treaties of a territorial character" as having
been regarded both in traditional doctrine and in modern opinion as unaffected
by a succession of states. The subject treaty falls under this category.

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a. The particular nature and character of the 1977 Treaty confirms that aside
from its undoubted nature of a joint investment, its major elements were the
proposed construction and operation of structures and installations on
specific parts of the territories of Hungary and Czechoslovakia along the
Danube.

DIGESTER: Kim

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