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ADRIANA KOE[*]
The damming of the Danube gives rise to a number of issues in international law. The complex factual scenario of the Case concerning the Gabcíkovo-Nagymaros Project[1] entailed questions of state succession, state responsibility and ecological necessity, interpretation of treaties, the role of newly emerging norms of international environmental law and its intricate relationship with international watercourse law. Whilst the judgment of the Court assessed Hungary’s claim that a state of ecological necessity had arisen in respect of the Danube River, it adopted a legalistic approach that effectively avoided a determination on the effect of environmental norms upon the actions of states. Delivering a separate opinion, Vice-President Weeramantry gave credence to the principle of sustainable development, considered for the first time before the International Court of Justice.
The Danube River is the second longest river in Europe and forms part of the contiguous territorial boundary between Hungary and Slovakia, neighbouring riparian states. The Treaty Between the Hungarian People’s Republic and the Czechoslovak Socialist Republic concerning the Construction and Operation of the Gabcíkovo-Nagymaros System of Locks was concluded on 16 September 1977.[2] The Treaty addressed broad utilisation of the natural resources of the Danube between Bratislava and Budapest, representing two hundred of the River’s two thousand eight hundred and sixty kilometres. In its Preamble, the Treaty sets objectives of mutual management in respect of “development of water resources, energy, transport, agriculture and other sectors of the national economy of the Contracting Parties”.[3]
A Joint Contractual Plan stipulated that the Project constituted an integrated joint scheme, with both parties enjoying equality of energy rights and ownership commensurate with equality of financing, construction and operation.[4] Article 1 described the Project as a “single and indivisible operational system of works”.[5] Construction work began in 1978 and continued amidst profound political and economic changes across Central Europe.
Intense criticism of the construction at Nagymaros centred upon endangerment of the environment and uncertainty of continued economic viability. This growing opposition engendered political pressures upon the Hungarian Government. After initiating two Protocols, primarily concerned with timing of construction,[6] Hungary suspended works at Nagymaros on 21 July 1989 pending further environmental studies.
Czechoslovakia protested Hungary’s suspension of works. Negotiations took place between the parties and Czechoslovakia began investigating alternative solutions. “Variant C”, one of these alternatives, involved a unilateral diversion of the Danube onto Czechoslovakian territory ten kilometres upstream from Dunakiliti. Negotiations had been of no avail when Czechoslovakia began work on Variant C in November 1991. On 19 May 1992 Hungary purported to terminate the 1977 Treaty by way of a Note Verbale transmitted to the Czechoslovak Government. On 15 October 1992 Czechoslovakia initiated closing the Danube and proceeded with damming the river.
Slovakia was formed upon the dissolution of Czechoslovakia on 31 December 1992. Hungary and Slovakia have enjoyed diplomatic relations since 1 January 1993.[7]
The jurisdiction of the International Court of Justice was founded by 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 Gabcíkovo-Nagymaros Project.[8] A two-tiered judgment was delivered on 25 September 1997. The judgment of the Court was declaratory in relation to past conduct and prescriptive as to future conduct between Hungary and Slovakia.[9] A number of Declarations, Separate Opinions and Dissenting Opinions were attached to the judgment of the Court, illustrating the complex maze of legal issues raised by the factual matrix of the Gabcíkovo-Nagymaros Case.[10]
The Special Agreement between the Parties stated:
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 Gabcíkovo-Nagymaros Project.[11]
What was the effect of Slovakia becoming an independent State on 1 January 1993? Did Slovakia succeed to the rights and obligations conferred by the 1977 Treaty? Despite the seemingly straightforward terms of the Special Agreement, Hungary sought to distinguish succession to property rights from succession to the Treaty itself. Hungary’s objection to Slovakia’s succession stemmed from an absence of consent, asserting that there was never an agreement to accept Slovakia as a successor to the 1977 Treaty. The disputed treaty was not included on a list of bilateral treaties to remain in force, exchanged between the States upon Slovakia’s succession.
Article 34 of the Vienna Convention on the Succession of States in respect of Treaties,[12] based upon the principle of continuity, prescribes automatic succession upon the dismemberment of States. Hungary protested the application of Article 34 on the basis that it had never signed or ratified the Succession Convention, and that the principle of continuity did not represent a general principle of international law.[13] Slovakia contended that Article 34 codified a customary norm. The Court did not find it necessary to determine the status of the principle of continuity in international law, turning instead to characterisation of the 1977 Treaty under Article 12 of the Succession Convention.[14] Article 12 distinguishes rights that “attach to territory”, rights of this nature remaining unaffected by succession. Article 12 applies to Treaties themselves as well as the rights and obligations that arise thereunder.[15] The Court accepted Slovakia’s proposition that Article 12 was reflective of customary international law. Hungary attempted to characterise the 1977 Treaty as a commercial joint investment, so that rights created did not attach to territory and thus could not fall within the parameters of Article 12. Whilst the Court recognised that the Treaty could be characterised as a joint investment, more importantly it established an alternative navigational regime for an international watercourse[16] and affected the interests of other riparian States and users of the river.[17] Treaties concerning water rights or navigational interests are commonly held to be territorial in nature.[18] Twelve of the fifteen Members of the Court found that the 1977 Treaty continued in force as between Hungary and Slovakia.
The Vienna Convention on the Law of Treaties (hereinafter VCLT)[19] had a limited application to the Gabcíkovo-Nagymaros dispute. Both Parties acknowledged that only those provisions that codified pre-existing customary international law could be applied to the 1977 Treaty, concluded before the VCLT entered into force as between the Parties.[20] The Court identified Articles 60, 61 and 62, concerning the suspension and termination of treaties, as codification of customary norms.[21]
(i) “Ecological Necessity” and the Law of State Responsibility
In their written pleadings and oral submissions, both Hungary and Slovakia presented extensive evidence concerning the relationship between the Law of Treaties and the Law of State Responsibility. The Court resolved this interface by simply stating:
when a State has committed an internationally wrongful act, its international responsibility is likely to be involved whatever the nature of the obligation it has failed to respect.[22]
Hungary did not dispute the unlawfulness of its suspension and eventual abandonment of works at Nagymaros, submitting itself to the ambit of the Law of State Responsibility by relying upon a state of ecological necessity to preclude the wrongfulness of its actions. According to its environmental surveys, the works at Gabcíkovo and Dunakiliti would cause artificial floods and silting, the extinction of fluvial fauna and flora, deterioration of water quality and presented a risk of eutrophication of surface waters. Similarly, the structures at Nagymaros were expected to cause erosion of the river bed downstream, shrinking of the filter layer and sediment deposits in river pockets, silting, diminished water supply to Budapest and pose a threat to aquatic habitats.[23]
The International Law Commission’s Draft Articles on the International Responsibility of States defines the relevant criteria to invoke a “state of necessity”.[24] Article 33(1)(a) requires that a state of necessity will only preclude the wrongfulness of an act where it is the only means of safeguarding an essential interest against grave and imminent peril. All three limbs of this test must be satisfied.[25] Furthermore, under Article 33(1)(b), the act committed must not have seriously impaired the essential interest of a State towards whom an obligation was owed.[26] The Court found that Article 33 was representative of customary international law on state responsibility.[27] Whilst Hungary’s quest for ecological preservation was considered an “essential interest”, its mere apprehension of environmental peril failed to satisfy the “grave and imminent” component of an act committed in a state of necessity.[28] In this context, imminence is synonymous with immediacy or proximity whilst peril is equated to risk. It is important to note that the Court did not exclude ecological threats from the corpus of dangers that may suitably be characterised as “grave and imminent”. Long term realisation of environmental perils would satisfy the criterion if accompanied by definitive certainty.[29] On the facts before it, the Court was not convinced that an imminent peril existed in 1989 when Hungary first suspended work on the Project.[30]
The judgment of the Court must be faulted for expressly declining to consider and weigh scientific evidence presented by both Parties. With respect, how did their Excellencies draw a determination on the factual risk inherent with the Project, concluding that environmental peril was insufficiently substantiated by scientific evidence so as to eliminate uncertainty of outcome, without evaluating the data and research findings describing such peril?[31] Such an assessment, or failure thereof, failed to respect the precautionary principle in international environmental law and neglected consideration of ramifications that present uncertainties may have upon the future.[32] The very nature of ecological risk is that damage may take years, even decades, to manifest, at which time large environmental, societal and economic costs must be sustained. Bearing in mind that ecological damage is often irreversible, the majority judgment’s heedless approach on this point of law is highly unsatisfactory, with Stec and Eckstein observing that “[p]rinciples of prevention and precaution are lost”.[33]
Even if a serious threat of imminent peril was established, the Court postulated that Hungary had available to it means other than suspension of works in order to resolve the problem.[34] Firstly, Hungary was in a position to control (at least partially) the distribution of water at Dunakiliti, so as to prevent artificial flooding and some of the other risks complained of. Secondly, at Nagymaros, Hungary may have discharged gravel into the downstream bed to counter erosion and processed drinking water intended for consumption at Budapest. The increased costs of the Project associated with these techniques are not pertinent to the question of whether a state of necessity subsisted.[35] At any rate, Hungary had by its own acts or omissions helped to bring about the state of necessity, if there was one, thereby precluding the application of Draft Article 33.
This remarkably high threshold test for establishing a state of ecological necessity under the law of state responsibility secures the undesirable result whereby States will find it nearly impossible to legitimately cease construction on any project, established under a treaty, on environmental grounds.
(ii) Variant C and the Principle of Approximate Application
Variant C represents a unilateral measure invoked by Czechoslovakia in face of Hungarian refusal to resume work on the Project and follows the indeterminate outcome of intergovernmental negotiations. Work on Variant C began in November 1991 with the construction of a dam at Cunovo on Czechoslovakian territory. Further negotiations between the Parties were hampered by Czechoslovakia’s refusal to stop work on Variant C until a tripartite expert committee was able to confirm that its negative environmental impacts outweighed its potential benefits and Hungary’s refusal to begin negotiations unless Variant C was suspended. Czechoslovakia intensified work on Variant C.
The Commission of European Communities initiated trilateral negotiations in October 1992. By this time, the first phase of Variant C had been completed, the river bed had been reinforced and the principal channel had been narrowed. Closure of the river bed and construction of the dam continued. Slovakia maintained that the implementation of Variant C was not an internationally wrongful act under the principle of approximate application. According to Slovakia, Variant C represented the only possibility of fulfilling the purposes of the 1977 Treaty, and the continuing obligation to execute it in good faith. Hungary argued that Variant C not only materially breached Articles 15, 16, 19 and 20 of the 1977 Treaty but also breached obligations under the Convention on the Regulation of Water Management Issues of Boundary Waters.[36] Article 15 provided for preservation of water quality, Article 16 dealt with maintenance of the river bed, Article 19 required the protection of nature and Article 20 sought to protect fishing interests.
The principle of approximate application was considered by Judge Sir Hersch Lauterpacht in Admissibility of Hearings of Petitioners by the Committee on South West Africa:
It is a sound principle of law that whenever a legal instrument of continuing validity cannot be applied literally owing to the conduct of one of the parties, it must, without allowing that party to take advantage of its own conduct, be applied in a way approximating most closely its primary object. To do that is to interpret and give effect to the instrument – not to change it.[37]
The 1977 Treaty and associated Joint Contractual Plan had as their primary object the development of a single and indivisible system of locks, with Articles 8 and 10 providing for joint ownership of structures regardless of territorial location. The Project was to be coordinated as a single unit. The Court held that, by definition, these objectives could not be achieved via unilateral action.[38] Thus Variant C failed to satisfy the conditions set forth by Judge Lauterpacht, releasing the Court from determining whether the principle of approximate application is or is not a general principle of international law.
Although Slovakia could not rely upon the principle of approximate application to preclude the wrongfulness of its action insofar as they violated express provisions of the 1977 Treaty, a narrow majority of the Court distinguished the application of Variant C in 1991 from that in 1992. Whilst the initial work at Cunovo was necessary for the implementation of Variant C, it could easily have been abandoned and as such assumed the character of a precautionary measure or an avenue of possible action pending negotiations. No wrongful act had been committed until damming of the river began in 1992.[39] The preparatory actions preceding a wrongful act are not to be confused with the actual offence.[40] Thus Czechoslovakia was entitled to proceed to Variant C in 1991 but committed an internationally wrongful act by extending its operation to the damming of the Danube.[41]
(iii) Grounds for the Termination of a Treaty
On 19 May 1992 Hungary purported to terminate the 1977 Treaty as a consequence of Czechoslovakia’s refusal to suspend work on Variant C during the process of mediation. As the Treaty itself did not feature a clause governing termination, Hungary proffered five arguments to validate its actions: a state of necessity, supervening impossibility of performance, fundamental change of circumstances, material breach and the emergence of new norms of international environmental law. Slovakia contested each of these bases.
The Court easily dismissed Hungary’s first claim, simply stating that a state of necessity is not a ground for termination. Even if a state of necessity is established, as soon as it ceases to exist treaty obligations automatically revive.[42]
The doctrine of impossibility of performance is encapsulated in Article 61 of the VCLT, which requires the “permanent disappearance or destruction of an object indispensable for the execution of the treaty”. In this case, the legal regime governing the Gabcíkovo-Nagymaros Project did not cease to exist. Articles 15, 19 and 20 of the 1977 Treaty provided the means through which works could be readjusted in accordance with economic and ecological imperatives. Furthermore, Article 61(2) of the VCLT precludes application of the doctrine where the impossibility complained of is the result of a breach by the terminating Party. If the joint investment had been hampered to a point where performance was impossible, it was a consequence of Hungary’s abandonment of works.[43]
Article 62 of the VCLT codifies international law in respect of fundamental change of circumstances and treaty relations. Hungary submitted that the 1977 Treaty was originally intended to be a vehicle for socialist integration. Fundamental changes cited were the displacement of a “single and indivisible operational system” by a unilateral scheme; the emergence of both States into a market economy; the mutation of a framework treaty into an immutable norm; and the transformation of a treaty consistent with environmental protection into “a prescription for environmental disaster”. The Court held that although political changes and diminished economic viability were relevant to the conclusion of a treaty, they were not so closely linked with the object and purpose of the 1977 Treaty so as to constitute an essential basis of the consent of the Parties.[44] New developments in the efficacy of environmental knowledge were not unforeseen by the Treaty and cannot be said to represent a fundamental change.[45] The Court did not consider whether the emergence of new environmental norms would catalyse the application of Article 62 in a situation where the terms of a treaty stand abhorrent to new norms.
Hungary claimed that Variant C materially breached Articles 15, 19 and 20 of the 1977 Treaty, concerning the protection of water quality, the preservation of nature and guardianship of fishing interests. Article 60(3) of the VCLT recognises material breach of a treaty as a ground for termination on the part of the injured State. Extending its reasoning on the principle of approximate application, the Court held that a material breach only occurred upon the diversion of the Danube. As Czechoslovakia dammed the Danube after 19 May 1992, Hungary’s purported termination was premature and thus invalid.
As its final basis for the justification of termination, Hungary advocated that, pursuant to the precautionary principle in environmental law, the obligation not to cause substantive damage to the territory of another State had evolved into an obligation erga omnes (sic utere tuo ut alienum non laedas). Slovakia countered this argument with the claim that there had been no intervening developments in international environmental law that gave rise to jus cogens norms that would override provisions of the 1977 Treaty. The Court avoided consideration of these propositions, concluding instead that “[t]hese new concerns have enhanced the relevance of Articles 15, 19 and 20”.[46] Given that international environmental law is in its formative stages,[47] it is unfortunate that the International Court of Justice did not grasp at this opportunity to discuss its role in the governance of relations between States. To that end, the Court may have clarified the controversial application of the sic utere principle to modify notions of unrestricted sovereignty in the Trail Smelter arbitration.[48]
Both parties claimed reparation and restitutio in integrum for injuries sustained. Hungary’s claim lay in respect of damage to the environment whilst Slovakia sought compensation for the deleterious consequences of Hungary’s failure to comply with the 1977 Treaty.[49]
Slovakia attempted to rely upon a general principle of international law that a party injured by the non-performance of another treaty party must seek to mitigate the damage that it suffered. The Court dismissed Slovakia’s proposition, reasoning that such a principle would preclude an injured State who had not taken measures to limit damage sustained from claiming compensation.[50] Slovakia also attempted to establish that Variant C was a justified countermeasure to Hungary’s suspension and subsequent termination of its Treaty obligations. The requisite elements of a justified countermeasure are set forth in Military and Paramilitary Activities in and Against Nicaragua.[51] Although Variant C was instituted in response to an internationally wrongful act directed against Czechoslovakia, and Hungary was called upon to discontinue its wrongful conduct, the effect of Variant C was not commensurate with the injury sustained. The majority of the Court held that the unilateral assumption of 80–90 per cent of the waters of the Danube lacked proportionality, usurping Hungary’s right to an equitable and reasonable share of the international watercourse.[52]
As both Hungary and Slovakia are liable for the payment of compensation for damage caused by internationally wrongful acts, the Court observes that both Parties may consider renouncing or cancelling all financial claims and counterclaims in the framework of an overall settlement.[53]
By the time the dispute was brought before the International Court of Justice, the Gabcíkovo Power Plant had been operational for nearly five years, fed by a reservoir at Cunovo (not Dunakiliti) and operated at run of the river mode, not in the peak hour mode originally envisaged. The works at Nagymaros had not been built, and there was no longer any necessity for their construction. In considering remedies available to it, the Court also recalled the other objectives of the 1977 Treaty (none of which were of a lesser importance than the production of energy): flood control, improved navigability of the Danube, regulation of discharge, and protection of the natural environment. Given these facts, the Court concluded that it would be out of touch with reality to order reinstatement of the works according to the Joint Contractual Plan and the demolition of structures at Cunovo. Against the backdrop of constant negotiations and alterations to the original plan, the Court felt that the explicit terms of the 1977 Treaty were acknowledged by the Parties to be negotiable in practice.[54]
Under Article 5 of the Special Agreement, Hungary and Slovakia undertook to enter into negotiations on the modalities for execution of the judgment of the Court. The doctrine of pacta sunt servanda, codified by Article 26 of the VCLT, states that every treaty in force binds the parties to it and must be performed in good faith. The Court describes this requirement as an obligation to apply the 1977 Treaty in a “reasonable” manner so that its purposes may be realised. Such good faith may be evidenced by willingness to negotiate without the imposition of preconditions, or the ready acceptance of third party assistance.[55] In a protracted attempt to integrate environmental concerns into its judgment, the Court directed the parties to derive a satisfactory solution in regards to the volume of water to be released into the old river bed and side arms, observing that:
in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment [mindful] of the limitations inherent in the very mechanism of reparation of this type of damage.[56]
The Court subsequently suggested that the works at Cunovo become a jointly operated unit, replacing the originally proposed dam at Dunakiliti. Variant C could be made to operate in a manner that conforms to the 1977 Treaty, transforming it from a de facto status to part of the treaty-based water management regime.[57]
Principles of environmental law were clearly incorporated by Articles 15, 19 and 20 of the 1977 Treaty, and were raised by both parties before the Court. Despite comprehensive coverage of the Law of Treaties and the Law of State Responsibility, the judgment of the Court evinced comparatively little deliberation of the environmental issues identified. Vice-President Weeramantry delivered a separate opinion, focusing upon the principle of sustainable development.[58] Despite concluding in favour of each of the Court’s findings, His Excellency approached the decision by assessing the status of sustainable development, applying the principle of continuing environmental impact assessment, and questioning the handling of erga omnes obligations in inter partes judicial procedure.[59]
Adopting an anthropological and philosophical approach, equating environmental rights with human rights,[60] Vice-President Weeramantry acknowledged that:
This case offers a unique opportunity for the application of [sustainable development], for it arises from a Treaty which had development as its objective, and has been brought to a standstill over arguments concerning environmental considerations.[61]
Sustainable development offers itself as an instrument to balance the competing demands of Slovakia and Hungary. Slovakia has traditionally experienced a shortage of electricity, and its development is dependent upon the flow of the Danube for power generation. Hungary, on the other hand, seeks to protect the ecological resources that it sees as being threatened by the operation of the Gabcíkovo power plant. Vice-President Weeramantry traces the historical development of the concept and its endorsement by various international instruments such as the United Nations Convention on Biological Diversity.[62] Further evidence of world-wide acceptance of the principle is presented, illustrating opinio juris and state practice, before concluding that sustainable development reflects “the nature of customary law”.[63] His Excellency draws upon insights from other cultures in order to aid interpretation and application of a principle in its formative stages, a method charted by Grotius.[64] A detailed assessment of ancient irrigation-based civilisations reveals environmental principles at play in the harnessing of streams and rivers, although not necessarily involving transboundary considerations. Reference is made to Sri Lanka’s integration of development with the preservation of natural surroundings, the practice of the Sonjo and Chagga tribes of Tanzania, ancient Inca civilisation and China’s development of the Mo River. An examination of Buddhist theology and Islamic law supports the ‘first principle’ of modern environmental law, that of trusteeship of the earth’s resources.[65]
How does the balancing criterion of sustainable development operate in assessing the competing interests of Hungary and Slovakia? Surprisingly, after this comprehensive appraisal of the status of the principle of sustainable development in international law, Vice-President Weeramantry omits to apply it to the facts of the dispute. Which aspects (if any) of environmental concern have to be sacrificed in favour of development of the Danube to facilitate power generation? Is there a hierarchy of concerns to be applied? At what point does construction in the name of development become non-acceptable to environmental law? Can the flooding of an alluvial plain or the diversion of a river be defended by the criterion of development? His Excellency expressly adopts a utilitarian approach to development, measuring its value as the “sum total of human happiness and welfare”.[66] Does this measure also apply to evaluating the net worth of ecology? How is “human happiness” measured? Whilst Vice-President Weeramantry must be congratulated for his insightful investigation into the foundations of the concept of sustainable development, a significant void appears between this theoretical discourse and the conclusion that a joint operational regime must be established between Hungary and Slovakia.[67]
The judgment of the Court paid “lip-service”[68] to sustainable development, restraining from ascribing it a status in international law beyond reference to it as a concept, “as a value or objective that the parties were legally obliged to take into account in their decisions on development projects”.[69] Boyle contemplates one interpretation of the judgment as being limited to decision processes, with the requirement of sustainable development removed from substantive outcomes.[70] Could such decision processes be reviewed? Who would have the authority to review decision processes in respect of developmental initiatives? If sustainable development becomes recognised as an obligation erga omnes, who would have standing as an Applicant? Would individual decision-makers be held accountable or would vicarious liability to institutions or States apply? Boyle contends that a specialised tribunal may be required to address questions of sustainable development:
The factors involved in determining what is sustainable are much broader and more subjective than the factors at issue in questions of equitable utilisation. Weighing the interests of inter- and intra- generational equity, the integration of environmental protection and development, and the sustainable utilisation of resources, inter alia, would stretch the boundaries of justiciability, even in national courts, let alone, in the ICJ.[71]
Nonetheless, the International Court of Justice did recognise that future operation of any developmental regime on the Danube must be governed by the concept of continuing environmental impact assessment, established as a rule of international law in Legality of the Threat or Use of Nuclear Weapons.[72] In practice, its roots may be traced to Trail Smelter and the requirement of continuous monitoring of subsequent performance.[73] In the Gabcíkovo-Nagymaros Case, continuing environmental impact assessment is relevant to the court order for a joint operational regime between the parties and represents an additional safeguard for Hungary’s (allegedly) threatened environmental interests.[74] The principle of contemporaneity applies as the standard by which continuing assessment is to be made.[75] Despite this outlook on environmental monitoring, it is unfortunate that the Court did not grasp the opportunity to consider the actual legal consequences (if any) of environmental impact assessments (EIA). Assuming legitimacy, scientific and technical accuracy, can an EIA be applied in a manner that binds the actions of states? What if the EIA has been commissioned by a third party state or organisation and purports to affect the operation of a bilateral treaty? What are the consequences of failing to conduct a true and representative EIA prior to the commencement of a project? Even Vice-President Weeramantry’s eloquent judgment does not turn to addressing any of these questions, His Excellency confining his observations on EIA to recognising it as a “specific application of the general principle of caution”.[76]
The interface between the law of treaties and international environmental law remains less than clear. The 1977 Treaty expressly provided that its operation was subject to evolving and emergent norms of environmental law. Whilst such a provision has as a necessary corollary renegotiating the execution of treaty objectives, implying a requirement of consistent environmental monitoring,[77] would the same resultant obligation ensue in the application of a treaty that remained silent on environmental concerns? The judgment of the Court reaffirmed the integrity of pacta sunt servanda, upholding the sanctity of treaties.[78] Bourne contemplates that the status quo protection of pacta sunt servanda will only extend to situations where detrimental environmental effects were reasonably foreseeable at the time at which the relevant treaty was concluded.[79] In cases where devastation of the environment was not reasonably foreseeable, an obligation to renegotiate and modify the treaty ensues, cognisant of newly acquired information.
The factual matrix before the Court appeared to present a perfect opportunity for the application of international watercourse law and associated principles of international environmental law.[80] The judgment of the Court made brief mention of the Convention on the Non-Navigational Uses of International Watercourses[81] in considering the legal consequence of Czechoslovakia appropriating 80–90 per cent of the waters of the Danube for its exclusive use and sole benefit before returning it to the main bed of the river. The Court concluded that although Hungary violated the 1977 Treaty provisions “that cannot mean that Hungary forfeited its basic right to an equitable and reasonable sharing of the resources of an international watercourse.”[82]
The principle of reasonable and equitable utilisation (REU) appears in Article 5 of the Watercourse Convention and has itself been the subject of great debate.[83] The Watercourse Convention has not yet entered into force and neither Hungary nor Slovakia are signatories to the convention. Given this, does the Court’s reference to a “basic right” of REU, seemingly without the need for justification, suggest that any remaining controversy over the concept has dissipated?[84] The status of REU independent of the Watercourse Convention and the question of whether it constitutes a customary norm in international law was unclear prior to the Gabcíkovo-Nagymaros Case.[85] Has the Court provided an affirmative answer by invocation of the principle in its judgment? In the absence of evidentiary support and in light of the brevity with which the Court addressed REU, it is unlikely that the requisite elements of customary laws enunciated in the Asylum Case[86] and North Sea Continental Shelf cases[87] have been satisfied. This pithiness stands in stark contrast to Vice-President Weeramantry’s extensive treatment of the comparatively undisputed principle of sustainable development. Similarly to sustainable development, it is the actual meaning and composition of REU that attracts the greatest controversy.
The principle of REU may be supported by cases such as Territorial Jurisdiction of the International Commission of the River Oder,[88] Diversion of Water from the River Meuse,[89] Lac Lanoux Arbitration,[90] and Helmand River Delta.91 Surprisingly, only Judge ad hoc Skubiszewski sought to incorporate these authorities in his dissenting opinion, an application of REU to justify the continuing implementation of Variant C.[92]
Even if REU was a customary norm and the provisions of the Watercourse Convention applied as between the Parties, its operation may still be disputed. Preexisting agreements, such as the 1977 Treaty, pose a problem for adherence to the Watercourse Convention’s provisions. Unless REU has entered into the corpus of jus cogens rules or obligations erga omnes, states are free to mutually ‘contract’ out of norms of general international law.[93] In his separate opinion, Judge Abdul Koroma equated the 1977 Treaty to a contract between Hungary and Slovakia, with the effect of augmenting any right to REU:
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, PCIJ Series A/B No 70), this rule applies where a treaty is absent.[94]
Article 14(2) of the 1977 Treaty operates in lieu of a right to REU, providing that both parties may withdraw water from the Bratislava-Budapest section of the Danube without prior notice for use in relation to the objectives of the Joint Contractual Plan. This excess withdrawal was contemplated by the parties, and was to be accompanied by compensation in the form of an increased share of electric power. Judge Abdul Koroma concluded that under Article 14(2) Hungary had agreed to the diversion of the Danube within the context of the project, a lex specialis.[95] Given the unexplained application and treatment of REU in the judgment of the Court, with due respect, Judge Abdul Koroma’s execution of the principle should be favoured as a cogent and theoretically justifiable interpretation.
Related to the issue of standing and conceiving sustainable development as an obligation erga omnes, a question that remains unresolved by the Gabcíkovo- Nagymaros Case is whether an activity can be acceptable if it is equitable as between two parties in a bilateral context and yet unsustainable? The preferable view envisions sustainable development as the ultimate objective, with REU representing a means to achieve it in the context of international watercourses.[96] This view is supported by the nature of international watercourses and their disregard for political borders – an equitable use of an international watercourse respects the rights of all riparian states, not just those parties to a particular treaty. To that end, equity and sustainability lie hand in hand as complementary partners.
Water should ideally be a catalyst for international cooperation rather than a source of conflict.[97] Human water utilisation has increased by a factor of thirty-five over the last three centuries, and continues to grow at a rate of four to eight percent per annum.[98] Approximately two hundred and fifteen river basins world-wide are shared by two or more states.[99] The possibility of armed conflict over water disputes cannot be ignored, especially in regions such as the Middle East, where over fifty percent of the population relies upon water flowing from another state for their survival.[100]
In the Case Concerning the Gabcíkovo-Nagymaros Project the International Court of Justice was presented with an opportunity to resolve questions pertinent to international environmental law and international watercourse law. It is unfortunate that the Court did not rise to this occasion, choosing instead to promulgate a decision largely within the confines of the law of treaties and the law of state responsibility.[101] Guidance as to the legal implications of sustainable development, the role of precaution, scientific evidence, environmental monitoring and environmental impact assessments in regulating the rights and obligations of states had been eagerly anticipated. Guidance as to the applicability of the Watercourse Convention as a framework for regulating the relations of riparian States, and definition of water sharing concepts, would have been welcomed by the international community in the hope of achieving harmonious water utilisation.[102] A clear indication of the state of the law may be an effective tool to minimise the potential for disputes in the future.
Although the decision was disappointing, with academic commentators labelling its treatment of environmental questions as “perfunctory at best”,[103] “acrobatically avoid[ing]” substantive ecological considerations,[104] exhibiting a “moderately humanistic-ecofriendly vision”,[105] it nonetheless must be lauded for taking another small step in the gradual evolution of environmental norms in the context of legal relations between states. Although the International Court of Justice chose not to engage in judicial activism, it charted a conservative path far distanced from “petrifying” the law.[106] The judgment of the Court also drew significant conclusions in respect of the law of treaties, the law of state responsibility and state succession. Against the backdrop of environmental questions raised but not addressed in Legality of the Threat or Use of Nuclear Weapons[107] and Certain Phosphate Lands in Nauru,[108] it is evident that the International Court of Justice has deliberately refrained from making a pronouncement on the legal impact of ecological and environmental considerations on the rights and obligations of states, as established under treaty law.
Initial claims that the judgment of the Court in the Case Concerning the Gabcíkovo-Nagymaros Project succeeded in mediating a practical result, delivering a justice mutually acceptable to both parties, may be premature.[109] Burgeoning trepidation towards a joint operational regime in Hungary manifested in an unexpected swing against the incumbent Government in Parliamentary elections during May 1998.[110] A central policy platform of the newly elected Government is to institute new proceedings against the Gabcíkovo-Nagymaros Project at the Peace Palace in The Hague.[111] It is hoped that the International Court of Justice will not shy away from any other opportunity to rule upon the role of newly emerging environmental norms in international law, and pass judgment upon whether international environmental and watercourse law operates so as to bind the actions of riparian states.
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