In 1997, the International Court of Justice delivered its verdict regarding the Gabcikovo-Nagymaros Project. Although the first predominately environmental dispute to be presented before the Court, the case was primarily decided on other international law factors. However, discussion generated in the Court relating to international watercourses and international environmental law has provided much impetus for the increased understanding and advancement of these specific areas. This paper analyses the ICJ's decision in respect of this impetus and highlights the future implications for international watercourses and international environmental law.

The case raised a number of very important issues within the field of international law and these were not just restricted to the environment. For the first time in its history, the Court was faced with questions relating to issues such as specific performance and the relationship between the Law of Treaties and the Law of State Responsibility. To the disappointment of environmental onlookers, the case was primarily decided on the basis of the Law of Treaties. However, a closer analysis of the decision of the Court reveals important implications for international watercourses law and international environmental law.

This paper seeks to analyse the ICJ decision from these two perspectives. After a short introduction highlighting the background to the case, this paper shall critically evaluate the Court's decision relating to Hungary's right to suspend and subsequently terminate the 1977 Treaty and Slovakia's right to unilaterally proceed with the project.

In September 1977, Hungary and Czechoslovakia concluded a treaty for the construction of the Gabcikovo-Nagymaros Barrage System (GNBS). The objectives of the GNBS Project were

• energy production;
• flood protection;
• development of irrigation systems in the area;
• protection of the environment; and
• improvement of navigation.

As the Preamble of the 1977 Treaty indicated, the aim of the project was primarily an economic one. The GNBS Project envisaged a reservoir and a dam to be built at Dunakiliti; a barrage system comprising of two hydroelectric powerplants (one at Gabcikovo, the other at Nagymaros); and a 25km long bypass canal together with a system of locks. (See sketch-map 1).

The project was to be a joint investment and would constitute "a single and indivisible operational system of works."

2.2. The Gabcikovo-Nagymaros Dispute

Following the conclusion of the 1977 Treaty, economic, political and environmental positions within both countries changed dramatically. In particular, the GBNS Project had became a source of increasing apprehension for Hungary. Doubts as to the economic viability and the environmental impact of the project surfaced. Consequently, in the October of 1989, Hungary (in response to domestic pressure) abandoned its works at Nagymaros.

A series of negotiations between Hungary and Czechoslovakia ensued. Czechoslovakia, frustrated by the lack of progress in the negotiations, decided to proceed and develop its own solution to the problem. 'Variant C' (the ‘provisional solution'), entailed the unilateral diversion of the waters of the Danube by Czechoslovakia in order to put the Gabcikovo dam into operation. This simply exacerbated the situation and led to Hungary terminating the 1977 Treaty on May 15th 1992. By October, Czechoslovakia had completed the closure of the Danube.

2.3. Referral to the ICJ

Irreconcilable differences pushed the parties firstly towards trilateral negotiations with the EC in 1992 and then, by Special Agreement, to a judicial determination at the ICJ. The Court was asked to decide whether:

1. Hungary was entitled to unilaterally suspend and later abandon the works on the Nagymaros and Gabcikovo parts of the project to which it was attributed responsibility under the terms of the 1977 Treaty;
2. the Czech and Slovak Republics were entitled to proceed with the 'provisional solution' in November 1991 and to put this system into operation in October 1992; and
3. the legal effects of Hungary's notification to terminate the 1977 Treaty in May 1992.

For the purposes of this paper, consideration will only be given to the first two questions posed.

One of the two main questions put to the ICJ referred to whether or not Hungary had any right to suspend and subsequently terminate the 1977 Treaty. The references to international environmental law and international watercourse law within this area of the judgement make it especially significant.

3.2. Ecological Necessity

The most crucial argument raised by Hungary in defence of its right to suspend and terminate the 1977 Treaty was that Slovakia's operation of Variant C had given rise to a permanent state of ecological necessity.

Hungary claimed, inter alia, that Variant C would seriously damage the water quality of the Danube, would result in the extinction of fluvial fauna and flora in the area and would ultimately reduce the groundwater level in the Szigetkoz wetland area causing considerable danger to the inhabiting wildlife. From these ‘predictions', formulated from a variety of scientific studies, Hungary claimed that a ‘state of necessity' existed in 1989 thus justifying its suspension and subsequent termination of the 1977 Treaty.

The ICJ in its discussion, accepted that there did indeed exist a defence of ‘state of necessity' which, in the correct circumstances, would preclude the responsibility of wrongful acts. In support of this view, the Court referred to the work of the International Law Commission (ILC), which had in its Draft Articles on the International Responsibility of States, upheld the notion of ‘state of necessity' as a ground for precluding responsibility. However, under these Draft Articles, a ‘state of necessity' may only be invoked if the criteria in Article 33 are satisfied.

In considering whether Hungary had satisfied these conditions, the ICJ acknowledged Hungary's concerns in connection with the environment. Indeed, the Court accepted that environmental concerns may constitute an ‘essential interest', indicating its own increasing respect for international environmental law by stating that

" it is primarily in the last two decades that safeguarding the ecological balance has come to be considered an ‘essential interest' of all States."

While accepting that a ‘state of necessity' defence did exist within the confines of customary international law and that Hungary's concerns for the environment constituted an ‘essential interest', the ICJ was not persuaded that the danger was certain and imminent. In highlighting the distinction between ‘perceived' peril as opposed to actual and imminent peril, the Court has indicated the crucial role that uncertainty has to play within this specific area of international environmental law. Clearly, possible peril will not suffice - it must be immediate. In a futile attempt to establish immediacy, Hungary inadvertently overlooked the alternative means that were available to prevent the environmental damage.

The decision as to the ‘state of necessity' is clearly significant from an environmental perspective. There was however no reference to the ‘precautionary principle' in this area of the judgement which is somewhat surprising as both parties were largely agreed as to its status. Indeed, the so-called ‘no substantial harm' principle is arguably relevant here and it is thought by some that the precautionary principle emerged from this. Furthermore, this has an obvious impact on imminence and there may be in future a change to the concept of ‘imminent harm' as the precautionary principle evolves. Hopefully, this will take into account more effectively the scientific information that the Court failed to consider. After all, it seems somewhat odd that the Court could eventually judge the immediacy and gravity of peril without taking into account the substantial scientific data presented by both parties which was designed to prove just that.

3.3. Development of New Norms

Amidst Hungary's termination argument was the contention that new requirements of international environmental law precluded performance of the 1977 Treaty. This was significant in that it set the stage for a lengthy discussion of the emerging principles of international environmental law. Primarily, the Court was prompted to consider the status and legal implications of the ‘precautionary principle' and more importantly, the concept of ‘sustainable development'.

Although neither party claimed the emergence of new peremptory norms, the Court stressed that neither concepts being considered would have attained such status under Article 64 of the Vienna Convention. However the Court, emphasising their significance, clearly indicated that new and emerging environmental norms and standards have to be taken into account. Furthermore,

"Such new norms have to be taken into consideration.....not only when States contemplate new activities but also when continuing with activities begun in the past."

In stating this, the ICJ is suggesting that projects completed in the past should adapt to new environmental norms as and when they appear. This is clearly controversial. It places a question mark over projects already under construction and may demand massive restructuring of projects close to completion, even though they were abiding by the environmental obligations at the time of conception. Indeed, by not expanding on this issue, the Court has not indicated how such measures should be achieved and has thus dug itself a hole with the hope that future precedents or even customary international law may fill the void.

Regardless, the 1977 Treaty provisions allowed for the incorporation of new environmental norms. As a direct result of these, the Court ruled that the 1977 Treaty was not lex specialis in character and was instead dynamic and open to alteration. Such a declaration will have a considerable impact on other treaties already in operation.

Furthermore, in deciding that new norms should be taken into account and that this should be done by the operation of the relevant articles in the 1977 Treaty, the ICJ has assumed that the new norms are binding in character. Several commentators have suggested that this is so but it is certainly a highly contentious issue and there is no clear answer.

3.3.1. The Precautionary Principle

Although accepting that protection of the environment is an ‘essential interest' for all States, the Court failed to effectively connect this with the investment involved, regardless of the impact that the investment may have had on the environment. In not doing so, the Court all but overlooked the precautionary principle.

The principle, affording increasing recognition in the international environmental community, has its origins in the Corfu Channel Case and in the 1982 UNCLOS.

In the Gabcikovo judgement there are references to ‘required precautionary measures' and ‘the recognition that environmental risks have to be assessed on a continuing basis.' There seems to be a veiled link here to environmental impact assessments although the Court was careful not to expressly state so. From this, it may be possible to view that any attempt to invoke an EIA would be an attempt to invoke the precautionary principle. In the Gabcikovo case, Hungary may have done just that. This connection was highlighted by Judges Weeremantry and Palmer in the recent Nuclear Tests Application Case. In the present case VP Weeremantry, in highlighting that such a dynamic principle should not be confined to pre-project evaluation, stressed the need for continuing assessment of environmental impacts, incidentally pointing out that EIA's were a

"specific application of the larger principle of caution."

In this sense, VP Weeremantry and to a lesser extent the rest of the Court may have been attempting to apply the precautionary principle in a context that was too broad.

Regardless, in giving the precautionary principle an airing in the court, further academic debate will be stimulated to develop this concept. After all, that is one of the tasks of the ICJ - to assist in the continual assessment and development of the margins of international law.

3.3.2. Sustainable Development

The reference to sustainable development in the Gabcikovo judgement was extremely important. Identifying sustainable development as a ‘concept', the majority of the bench acknowledged that this ‘new standard' had substantial contemporary relevance. Indeed, VP Weeremantry embraced this contemporary relevance and attempted to answer questions of qualification and doctrinal refinement by stating that sustainable development was a legal principle which had an erga omnes character.

In respecting this new standard, the Court emphasised that

‘newly developed norms of environmental law are relevant for the implementation of the Treaty."

and went on to state what it believed sustainable development to be, by asserting that it was the

"need to reconcile economic development with protection of the environment."

However, the Court failed to develop the matter and certainly did not feel obliged to analyse the concept in depth, although both Hungary and Slovakia agreed that such a concept was relevant to the dispute.

Taking the matter further, VP Weeremantry perceived sustainable development to be more than a mere concept. He highlighted sustainable development's usage by ancient civilisations, its incorporation into many treaties and agreements and indeed the pride of place given to the notion at the 1992 Rio Conference. VP Weeremantry though did not in his opinion say that the Gabcikovo-Nagymaros Project was unsustainable and didn't evaluate it on this basis. This was in essence in-line with the general philosophy of the Court whom, according to Professor Boyle, envisaged sustainable development as a primary driver in the decision-making process rather than in the decision itself. However, if the Court can judge what is inequitable then it is perfectly conceivable that it may judge what is unsustainable. Understandably, the factors involved in sustainable development may be too complex for the Court and the parameters too broad and too vague to do so, but there are mechanisms available to resolve this. For example, the Court could be guided by the UN Commission on Sustainable Development. Although not in its ambit, the Commission could in future evolve into some kind of quasi-judicial body capable of making determinations regarding what is or what is not sustainable.

To take the issue a step further, Professor Boyle in a recent presentation on sustainable development, asserted that sustainable development was the mechanism used to balance the competing uses in the Gabcikovo dispute. However, this seems to detract from the role played by equitable utilisation, which was essentially to do the same. In the Court's opinion, equitable utilisation was the primary factor in determining the equal balance of all competing uses of the States. What Professor Boyle may inadvertently be inferring, is the convergence of the two principles. If indeed equitable utilisation is a factor in attaining sustainable development then the distinction between equitable utilisation and sustainable development is becoming increasingly blurry. What we might be witnessing is the beginning of sustainable development becoming anchored in international watercourses law. This is reinforced by the compromise achieved in the final drafting of the UN Watercourses Convention where it was the reference to sustainable utilisation in Article 5(1) which abated objections. It is exactly this qualification which allows the principle of equitable utilisation to weigh considerations of development and use against environmental considerations.

In essence then, what VP Weeremantry has done in his separate opinion appended to the majority, is to place sustainable development firmly on the map. Indeed, the respect that such an influential member of the ICJ commands is not to be underestimated. The only issue left open, if indeed sustainable development is accepted as a legal principle, is whether or not it has an erga omnes character. In theory it may, but in reality, it may reduce the impact that VP Weeremantry's opinion has. Clearly, an erga omnes obligation will hinge on what is or what is not sustainable and with the Court's unwillingness to interpret this, it will prove very difficult to establish. After all, what is sustainable in one country may be unsustainable in another.

It is somewhat bemusing that a dispute over a major waterway failed to thoroughly examine substantial issues relating to international watercourses. However, the ICJ, in discussing the construction and putting into operation of Variant C, disclosed certain views on what it believed to be the fundamental principles of international watercourse law.

4.2. Equitable Utilisation

Although the majority of the Court accepted that the construction of Variant C was acceptable, it held that Slovakia had committed an internationally wrongful act in operating the system. In doing so, the ICJ relied on principles which other States had used in the past in formulating treaties and settling disputes. Basing its reasoning primarily on equity, the ICJ held that Slovakia, by unilaterally assuming the control of 80-90% of the waters of the Danube, was

"depriving Hungary of its right to an equitable and reasonable share of the natural resources of the Danube."

Although under Article 14 of the 1977 Treaty Hungary agreed to such a diversion, it only did so on the basis that the project was a joint one and thus Article 14 would not apply in any other circumstances.

While invoking the principle of equitable use, the ICJ made reference to earlier authority in the form of the River Oder Case, where the community of interests in relation to a watercourse was regarded as a common legal right. More significantly, the ICJ referred to Article 5 of the UN Watercourse Convention to bolster what it believed was a right under general international law to an equitable and reasonable use of the natural resources of an international watercourse. The Court was however careful not to go as far to claim that this was a legal obligation.

Slovakia contended that by putting Variant C into operation they were merely attempting to provide the ‘best approximate application' of the 1977 Treaty, and that they were acting in accordance with the duty to mitigate loss. The ICJ rejected both arguments. Even if such a principle of approximate application existed (the ICJ not being drawn on whether it did or not), it could only be applied within the confines of the 1977 Treaty and Variant C was clearly not a part. Furthermore, the Court emphasised that a wrongful act cannot be defended on the basis that it was mitigating loss.

It is suggested by some commentators that the reference to Article 5 of the UN Convention was merely ‘perfunctory'. However, this is an unfair judgement as to the Court's intention. It seems surprising that if it was indeed perfunctory, that the ICJ did not just instead refer to the work of the ILA. Indeed, the ICJ has conceivably viewed the UN Convention with a certain degree of sympathy and by recognising the impressive work and considerable effort put into it, referred to Article 5 in the hope that it may have blown some wind into its flagging sails. This may have been the reason why the Court sought to base its judgement in this respect on the UN Watercourses Convention and not on the 1994 Danube Agreement.

The judgement in relation to Variant C provoked the biggest split on the bench, with 9 votes to 6 in favour of Czechoslovakia being entitled to proceed with Variant C and 10 votes to 5 against Czechoslovakia putting that plan into operation. This was extremely interesting as the Court was faced with the daunting task of distinguishing between the construction and operation phases of the provisional solution. Indeed, 11 of the 15 dissenting judges would have favoured the provisional solution being treated as an indivisible operation and it is not clear whether the judgement may have been different if treated in this way.

4.3. Future Co-operation

In finding that Slovakia had no right to put into operation Variant C and that Hungary did not have the right to suspend and subsequently terminate the 1977 Treaty, the ICJ did not proclaim a victor in the Gabcikovo case. Instead, it ruled that the parties were to begin afresh a new process of negotiations to determine how best to implement the joint plan and achieve the original objectives. It is interesting that the ICJ then attempted to guide the future conduct of both parties.

The Court based its conclusion on the requirement that the parties negotiate to find a settlement based on the 1997 Treaty. The ICJ however indicated that they were nevertheless under a legal obligation to negotiate in good faith. As well as the norms of international environmental law and the principles of international watercourse law, the Court also based this conclusion on the North Sea Continental Shelf cases. This is significant in that the ICJ did not refer to Article 33 of the UN Charter in which Professor Andrassy believed the obligation to negotiate lay. Nor did the Court recognise that such an obligation evolved on the basis of customary international law as Professor Bourne suggests.

In ruling that Hungary and Slovakia were under a legal obligation to co-operate, the Court stated that such negotiations should determine in what way the multiple objectives of the 1977 Treaty could be best realised. In keeping with other areas of the judgement, the Court stressed that current environmental standards be taken into account and that this be done through the application of the 1977 Treaty.

In seeking to determine how the objectives of the 1977 Treaty should be attained, the ICJ stated that

"none of these objectives has been given absolute priority over the other."

Bearing in mind that one of these objectives was to protect the environment, the Court has denied any priority to this factor. Hungary's argument that the obligation not to cause substantive damage had evolved into an erga omnes obligation pursuant to the precautionary principle was thus clearly defeated. Indeed, this is in essence

"a rejection by the ICJ of the more general principle of no significant harm."

The Court did not however indicate any desire to debate the ‘no significant harm' rule. Indeed, if it had, it may have re-ignited past tensions between no significant harm and equitable utilisation, which the ILC and the Working Group of the Sixth Committee of the UN General Assembly grappled with extensively to reach an agreement on the UN Watercourses Convention. The ICJ may have been displaying incredible foresight in not pre-empting a debate which may have had a negative impact on a Convention which was already fraught with such a major difficulty.

Although neither party can claim victory, it would be unfair to suggest that the ICJ judgement was wholly deficient. Indeed, the case is a classic example of how the ICJ's flexibility can help forge a result that is mutually acceptable. The Court simply set and defined the fundamental legal parameters that the negotiations should take place within, and this was in hindsight, exactly what both parties required. It is unfair to expect the law to always create a single one-sided solution.

In closing, the aftermath of the Gabcikovo case has raised one final constantly reiterated question - whether the ICJ is the correct forum to resolve environmental oriented disputes? Certainly, in many areas of the judgement, the Court refused to deal with scientific evidence and this is especially worrying when environmental and watercourses disputes invariably raise a number of competing scientific claims. Domestic legal systems provide for environmental or scientific experts to join ad hoc panels to help reach determinations and this could be a future driver for a more specialised approach. What must be remembered though, is that it is extremely rare that any dispute will involve one single issue and thus the forum for solving international disputes must be as all embracing as possible. To limit the scope of any international dispute resolution forum is to limit its effectiveness.