Gabcikovo-Nagymaros Case (1997) ICJ
By Hesham Elrafei
gabcikovo nagymaros dam construction case
In 1977, Hungary and Czechoslovakia signed a treaty to construct a dam.
In 1989, Hungary abandoned the project, but Czechoslovakia continued construction work.
In May 1992, Hungary notified Czechoslovakia that it was terminating the Treaty.
Five months later, Czechoslovakia diverted the river's waters into a bypass canal which caused environmental harm.
In January 1993, Slovakia became an independent Country.
Hungary claimed that Czechoslovakia's unilateral construction activities constituted a material breach, and that the Treaty became impossible to perform, because implementing it would cause serious environmental harm. Consequently, it argued that under the Vienna Convention, an essential object of the Treaty had been destroyed.
In addition, Hungary invoked the defense of Necessity to justify its decision to abandon construction work, and that Necessity is a recognized defense to State responsibility.
Hungary also argued that it was entitled to terminate the Treaty, as there had been a fundamental change of circumstances since the Treaty was concluded, as the Treaty's obligations had been changed by the collapse of communism, and the reduced economic benefits linked with the project.
In September 1997, the International Court of justice held that:
Slovakia, as successor to Czechoslovakia, became a party to the Treaty from January 1993
That impossibility is not a valid ground to terminate the Treaty, as Hungary's failure to carry out the construction work compromised the Treaty's performance, and that Hungary could not use the Necessity's defense, as it could not prove that its decision was made in response to a situation of imminent danger to the environment.
The Court also held that the collapse of communism and the reduced economic benefits, did not radically transform Hungary's obligations, as the change of circumstance must be fundamental and unforeseen,
And that Hungary did not act in good faith in suspending the project as it was not entitled to abandon it. However, Czechoslovakia was in material breach when it diverted the river's waters.
lastly, the ICJ held that Hungary and Slovakia must negotiate in good faith to ensure the achievements of the Treaty, and that unless the Parties otherwise agree, a joint operation regime must be established following the Treaty; And that Hungary shall compensate Slovakia for the damage resulted from its abandonment of works, while Slovakia shall pay Hungary for the damage it has sustained.
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