The Gabcíkovo-Nagymaros Project

(Hungary/Slovakia)
FACTS:
The case arose out of the signature, on 16 September 1977, by the Hungarian People's Republic and the Czechoslovak
People's Republic, of a treaty concerning the construction and operation of the Gabcíkovo-Nagymaros system of locks in
order to further the utilization of the natural resources of the Bratislava-Budapest section of the Danube river.
The project was essentially aimed at the production of hydroelectricity, the improvement of navigation on the relevant
section of the Danube and the protection of the areas along the banks against flooding. It provided for the building of two
series of locks, one at Gabcíkovo (in Czechoslovak territory) and the other at Nagymaros (in Hungarian territory), to
constitute a single and indivisible operational system of works.
As a result of intense criticism which the project had generated in Hungary, the Hungarian Government decided on 13
May 1989 to suspend the works at Nagymaros pending the completion of various studies. In October 1989, Hungary
decided to not continue the work any further.
During this period, negotiations took place between the parties. Czechoslovakia also started investigating alternative
solutions. One of them, an alternative solution subsequently known as "Variant C", entailed a unilateral diversion of the
Danube by Czechoslovakia on its territory. On 23 July 1991, the Slovak Government decided to begin construction to put
the Gabcíkovo Project into operation by the above-mentioned alternative solution.
On 19 May 1992, the Hungarian Government transmitted to the Czechoslovak Government a note verbale unilaterally
terminating the 1977 Treaty with effect from 25 May 1992. On 15 October 1992, Czechoslovakia began work to enable
the Danube to be closed and, starting on 23 October, proceeded to the damming of the river, before Slovakia became an
independent State on 1 January 1993.

ISSUE:
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.

RULING:
The Court observed, first of all, that state of necessity is a ground recognized by customary international law for
precluding the wrongfulness of an act not in conformity with an international obligation. It considered moreover that such
ground for precluding wrongfulness could only be accepted on an exceptional basis. The following basic conditions set
forth in Article 33 of the Draft Article on the International Responsibility of States by the International Law Commission
were relevant in the present case: it must have been occasioned by an "essential interest" of the state which was the
author of the act conflicting with one of its international obligations; that interest must have been threatened 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 impaired an essential interest" of the state towards which the obligation existed; and the state
which was the author of that act must not have "contributed to the occurrence of the state of necessity". These conditions
reflected customary international law.
It acknowledged that the concerns expressed by Hungary for its natural environment in the region related to an essential
interest, but that the perils invoked by Hungary, without prejudging their possible gravity, were not sufficiently established
in 1989, nor had they been imminent; and that Hungary had 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.
The Court also noted that Hungary when it decided to conclude the 1977 Treaty had been presumably aware of the
situation as then known; and that the need to ensure the protection of the environment had not escaped the parties. The
Court therefore concluded that, 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 to bring it about. In the light of the conclusions
reached above, the Court found that Hungary had not been entitled to suspend and subsequently abandon the works for
which it was responsible.