Gabcikovo-Nagymaros Dams Case

Hungary Vs. Slovakia

By: ADITI INDRANI

Background of the case:

TheGabkovoNagymaros Damsis a large barrage project on the

riverDanube. Danube is the second largest river in Europe.

It was initiated by the Budapest Treaty of 16 September 1977
between theCzechoslovak Socialist Republicand thePeople's
Republic of Hungary. The project aimed at preventing catastrophic
floods, improving river navigability and producing clean electricity.
Only a part of the project has been finished inSlovakia, under the
nameGabkovo Dam, becauseHungary first suspended then tried to
terminate the project due to environmental and economic concerns.
Slovakia proceeded with an alternative solution, called "Variant C",
which involved diverting the Danube, theborder river. These caused
a international dispute between Slovakia and Hungary.
The joint HungarianCzechoslovak project was agreed upon on 16
September 1977 in the "Budapest Treaty". The treaty envisioned a
cross-border barrage system between the towns ofGabkovo,
Czechoslovak
Socialist
Republic
(now
Slovak
Republic)
andNagymaros, People's Republic of Hungary

Contd..
The plan was to divert part of the river into an artificial canal

atDunakiliti(a village in Hungary) to the hydroelectric power plant

near Gabkovo (eight turbines, 720MW). The canal would return the
water into a deepened original riverbed and at Nagymaros a smaller
dam and power-plant (158 MW) would be constructed. The plant in
Gabkovo was to be a peak-power plant and the dam in Nagymaros,
about 100km downstream, was to limit fluctuations of the water level.
Because most of the construction was planned to occur in Slovak
territory, the Hungarian government was obligated to participate in
some construction in Slovakia, to ensure equal investment by both
sides. Electricity produced was to be shared equally between the two
countries.
An important provision of the treaty was its Article 15.1, which stated:
"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"

Contd
However, due to economic hardship, Hungary pressed for temporary

abandonment of the barrage project in 1981. In October 1983 in

Prague, the two parties came to an agreement on slowing down work
on the project and postponing the inauguration of the power plants
Simultaneously, Hungarian experts expressed their doubts about the
project because they believed it might have detrimental effects on
the environment.
In early 1984, the Danube Circle was founded, a movement which
acted on a semi-legal basis. It accumulated, summarized and
intensified the criticism, in particular, of the Hungarian power plant
near Nagymaros and gained the growing support of the public.
Growing waves of protest finally led the Hungarian government to
suspend work at Nagymaros in 1989.
Because bilateral negotiations did not lead to a solution between the
two states, Czechoslovakia decided to implement a new arrangement
which redirected the Danube into a new canal towards Gabckovo
("Variant C") even ahead of Dunakiliti on Czechoslovakian territory
near Cunovo.

Contd..
The work on this variant started in 1991. This in turn

resulted in the fact that Hungary terminated the treaty of

1977 in May 1992.
That same year in October, Slovakia started river diversion
according to Variant C, thereby extracting 90 per cent of the
water from the old riverbed. As a consequence, the water
level dropped two metres below its all-time low precipitating
a massive international conflict.

Main Legal Issues:

The ICJ was asked to rule on several issues brought forth:
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 the
Treaty attributed responsibility to the Republic of Hungary"
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
What are the legal effects of the notification, on 19 May 1992,
of the termination of the Treaty by the Republic of Hungary
For the first time in the history of the ICJ, there was a sight visit
done to assess current circumstances of the projects in the
affected areas of a case.

ICJ Ruling:

Contd:
Suspension and abandonment by Hungary, in 1989:
In 1990, the new government of Hungary announced that

the project was a mistake and that it could not be "obliged

to fulfil a practically impossible task, namely to construct a
barrage system on its own territory that would cause
irreparable environmental damage.
The Court did not accept Hungarys actions to abandon work
at the designated locations by the 1977 Treaty as lawful. It
views these actions as an unwillingness to comply with the
binding responsibilities attributed to it in the 1977 Treaty and
as actions that undermine and render impossible the
fulfilment of the "single and indivisible" project agreed on.
The Court ruled that Hungary did not meet the requirements
needed to claim a state of necessity. It points out that at the
time of claiming state necessity these circumstances were
not present; these actions were ruled unlawful, and thus
Hungary incurred State Responsibility.

Contd..
Czechoslovakias implementation of the provisional

solution or variant C:
The Court has determined that Hungary was unlawful in
abandoning its responsibilities. These actions made it
impossible for Czechoslovakia to fulfil its duties according to
the 1977 Treaty; it follows that Czechoslovakia was allowed
to proceed with its solution, applying the principle of
approximate application.
It is noted that Czechoslovakia was the victim of an
international wrongful act. Although this warrants its claims
to mitigate damages, it does not justify the damming of the
Danube, which The Court deems as an international
wrongful act on the grounds of unilateral control of a shared
resource. Otherwise put, Czechoslovakia was entitled to
mitigate damages, but in 1992 was unlawful in proceeding
with variant C.

Contd
Termination of the Treaty by the Republic of Hungary:
With regards to the arguments presented by Hungary as

grounds for termination of the 1977 Treaty, The Court ruled the
following: even if a state necessity was to exist, it is not
grounds for termination of a treaty in this case; there was no
impossibility of performance as the treaty provided the
necessary tools for renegotiation and readjustment to address
Hungarys concerns.
The political circumstances were not closely linked to the
signing of the Treaty and are therefore not considered a
fundamental change in circumstances.
The Court found that with the above conclusions, it follows that
Hungarys notice of termination did not have legal effect and
the 1977 Treaty is still valid.
The Court stated that unless the parties can further negotiate,
Hungary is to pay reparations for the damages incurred to
Czechoslovakia and Slovakia due to its abandonment of the
System of Locks.