|I.||Substantive International Law - First Part|
|8.||VIOLATIONS OF INTERNATIONAL LAW AND RESPONSIBILITY OF STATES|
|8.8.||Circumstances Precluding Wrongfulness|
(Hungary / Slovakia)
Judgment of 25 September 1997
I.C.J. Reports 1997, p. 7
[pp.39-42] 49. The Court will now consider the question of 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.
50. In the present case, the Parties are in agreement in considering that the existence of a state of necessity must be evaluated in the light of the criteria laid down by the International Law Commission in Article 33 of the Draft Articles on the International Responsibility of States that it adopted on first reading. That provision is worded as follows:
"Article 33. State of necessity
1. A state of necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act of that State not in conformity with an international obligation of the State unless:
(a) the act was the only means of safeguarding an essential interest of the State against a grave and imminent peril; and
(b) the act did not seriously impair an essential interest of the State towards which the obligation existed.
2. In any case, a state of necessity may not be invoked by a State as a ground for precluding wrongfulness:
(a) if the international obligation with which the act of the State is not in conformity arises out of a peremptory norm of general international law; or
(b) if the international obligation with which the act of the State is not in conformity is laid down by a treaty which, explicitly or implicitly, excludes the possibility of invoking the state of necessity with respect to that obligation; or
(c) if the State in question has contributed to the occurrence of the state of necessity." (Yearbook of the International Law Commission, 1980, Vol. ll, Part 2, p. 34.)
In its Commentary, the Commission defined the "state of necessity" as being
"the situation of a State whose sole means of safeguarding an essential interest threatened by a grave and imminent peril is to adopt conduct not in conformity with what is required of it by an international obligation to another State" (ibid., para. 1).
It concluded that "the notion of state of necessity is ... deeply rooted in general legal thinking" ibid., p. 49, para. 31).
51. The Court considers, first of all, that the state of nec.essity is a ground recognized by customary international law for precluding the wrongfulness of an act not in conformity with an international obligation. It observes moreover that such ground for precluding wrongfulness can only be accepted on an exceptional basis. The International Law Commission was of the same opinlon when it explained that it had opted for a negative form of words in Article 33 of its Draft
"in order to show, by this formal means also, that the case of invocation of a state of necessity as a justification must be considered as really constituting an exception - and one even more rarely admissible than is the case with the othercircumstances precluding wrongfulness.. ." (ibid., p. 51, para. 40).
Thus, according to the Commission, the state of necessity can only be invoked under certain strictly defined conditions which must be cumulatively satisfied; and the State concerned is not the sole judge of whether those conditions have been met.
52. In the present case, the following basic conditions set forth in Draft Article 33 are relevant: it must have been occasioned by an "essential interest" of the State which is 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 impair[ed] an essential interest" of the State towards which the obligation existed; and the State which is the author of that act must not have "contributed to the occurrence of the state of necessity". Those conditions reflect customary international law.
The Court will now endeavour to ascertain whether those conditions had been met at the time of the suspension and abandonment, by Hungary, of the works that it was to carry out in accordance with the 1977 Treaty.
53. The Court has no difficulty in acknowledging that the concerns expressed by Hungary for its natural -environment in the region affected by the Gabcikovo-Nagymaros Project related to an "essential interest" of that State, within the meaning given to that expression in Article 33 of the Draft of the International Law Commission.
The Commission, in its Commentary, indicated that one should not, in that context, reduce an "essential interest" to a matter only of the "existence" of the State, and that the whole question was, ultimately, to be judged in the light of the particular case (see Yearbook of the International Law Commission, 1980, Vol. II, Part 2, p. 49, para. 32); at the same time, it included among the situations that could occasion a state of necessity, "a grave danger to... the ecological preservation of all or some of [the] territory [of a State]" (ibid., p. 35, para. 3); and specified, with reference to State practice, 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." Ibid., p. 39, para. l4.)
The Court recalls that it has recently had occasion to stress, in the following terms, the great significance that it attaches to respect for the environment, not only for States but also for the whole of mankind:
"the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment." (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, pp. 241-242, para. 29.)
54. The verification of the existence, in 1989, of the "peril" invoked by Hungary, of its "grave and imminent" nature, as well as of the absence of any "means" to respond to it, other than the measures taken by Hungary to suspend and abandon the works, are all complex processes.
As the Court has already indicated (see paragraphs 33 et seq. above), Hungary on several occasions expressed, in 1989, its "uncertainties" as to the ecological impact of putting in place the Gabcíkovo-Nagymaros barrage system, which is why it asked insistently for new scientific studies to be carried out.
The Court considers, however, that, serious though these uncertainties might have been they could not, alone, establish the objective existence of a "peril" in the sense of a component element of a state of necessity. The word "peril" certainly evokes the idea of "risk"; that is precisely what distinguishes "peril" from material damage. But a state of necessity could not exist without a "peril" duly established at the relevant point in time; the mere apprehension of a possible "peril" could not suffice in that respect. It could moreover hardly be otherwise, when the "peril" constituting the state of necessity has at the same time to be "grave" and "imminent". "Imminence" is synonymous with "immediacy" or "proximity" and goes far beyond the concept of "possibility". As the International Law Commission emphasized in its commentary, the "extremely grave and imminent" peril must "have been a threat to the. interest at the actual time" (Yearbook of the International Law Commission, 1980, Vol. II, Part 2, p. 49, para. 33). That does not exclude, in the view of the Court, that a "peril" appearing in the long term - might be held to be "imminent" as soon as it is established, at the relevant point in time, that the realization of that peril, however far off it might be, is not thereby any less certain and inevitable.
The Hungarian argument on the state of necessity could not convince the Court unless it was at least proven that a real, "grave" and "imminent" "peril" existed in 1989 and that the measures taken by Hungary were the only possible response to it.
[pp. 45-46] 57. The Court concludes from the foregoing that, with respect to both Nagymaros and Gabcíkovo, the perils invoked by Hungary, without prejudging their possible gravity, were not sufficiently established in 1989, nor were they "imminent"; and that Hungary 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. What is more, negotiations were under way which might have led to a review of the Project and the extension of some of its time-limits, without there being need to abandon it. The Court infers from this that the respect by Hungary, in 1989, of its obligations under the terms of the 1977 Treaty would not have resulted in a situation "characterized so aptly by the maximum summum jus summa injuria" (Yearbook of the International Law Commission, 1980, Vol. II, Part 2, p. 49, para. 31).
Moreover, the Court notes that Hungary decided to conclude the 1977 Treaty, a Treaty which - whatever the political circumstances prevailing at the time of its conclusion - was treated by Hungary as valid and in force until the date declared for its termination in May 1992. As can be seen from the material before the Court, a great many studies of a scientific and technical nature had been conducted at an earlier time, both by Hungary and by Czechoslovakia. Hungary was, then, presumably aware of the situation as then known, when it assumed its obligations under the Treaty. Hungary contended before the Court that those studies had been inadequate and that the state of knowledge at that time was not such as to make possible a complete evaluation of the ecological implications of the Gabcíkovo-Nagymaros Project. It is nonetheless the case that although the principal object of the 1977 Treaty was the construction of a System of Locks for the production of electricity, improvement of navigation on the Danube and protection against flooding, the need to ensure the protection of the environment had not escaped the parties, as can be seen from Articles l5, l9 and 20 of the Treaty.
What is more, the Court cannot fail to note the positions taken by Hungary after the entry into force of the 1977 Treaty. In 1983, Hungary asked that the works under the Treaty should go forward more slowly, for reasons that were essentially economic but also, subsidiarily, related to ecological concerns. In 1989, when, according to Hungary itself, the state of scientific knowledge had undergone a significant development, it asked for the works to be speeded up, and then decided, three months later, to suspend them and subsequently to abandon them. The Court is not however unaware that profound changes were taking place in Hungary in 1989, and that, during that transitory phase, it might have been more than usually difficult to co-ordinate the different points of view prevailing from time to time.
The Court infers from all these elements that, in the present case, 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, by act or omission to bring it about.
[p.55] 80. Slovakia also maintained that it was acting under a duty to mitigate damages when it carried out Variant C. It stated that "It is a general principle of international law that a party injured by the non-performance of another contract party must seek to mitigate the damage he has sustained."
It would follow from such a principle that an injured State which has failed to take the necessary measures to limit the damage sustained would not be entitled to claim compensation for that damage which could haye been avoided. While this principle might thus provide a basis for the calculation of damages, it could not, on the other hand, justify an otherwise wrongful act.
[pp. 55-57] 83. In order to be justifiable, a countermeasure must meet certain conditions (see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Merits, Judgment, I.C.J. Reports 1986, p. 127, para. 249. See also Arbitral Award of 9 December 1978 in the case concerning the Air Service Agreement of 27 March 1946 between the United States of America and France, United Nations, Reports of International Arbitral Awards (RIAA), Vol. XVIH, pp. 443 et seq.; also Articles 47 to 50 of the Draft Articles on State Responsibility adopted by the International ·Law Commission on f:rst reading, "Report of the International Law Commission on the work of its forty-eighth session, 6 May-26 July 1996", Official Records of the General Assembly, Fifyflrst Session, Supplement No. 10 (A/51/10), pp. 144-145.)
In the first place it must be taken in response to a previous international wrongful act of another State and must be directed against that State. Although not primarily presented as a countermeasure, it is clear that Variant C was a response to Hungary's suspension and abandonment of works and that it was directed against that State; and it is equally clear, in the Court's view, that Hungary's actions were internationally wrongful.
84. Secondly, the injured State must have called upon the State committing the wrongful act to discontinue its wrongful conduct or to make reparation for it. It is clear from the facts of the case, as recalled above by the Court (see paragraphs 61 et seq.), that Czechoslovakia requested Hungary to resume the performance of its treaty obligations on many occasions.
85. In the view of the Court, an important consideration is that the effects of a countermeasure must be commensurate with the injury suffered, taking account of the rights in question.
In 1929, the Permanent Court of International Justice, with regard to navigation on the River Oder, stated as follows:
"[the] community of interest in a navigable river becomes the basis of a common legal right, the essential features of which are the perfect equality of all riparian States in the user of the whole course of the river and the exclusion of any preferential privilege of any one riparian State in relation to the others" (Territorial Jurisdiction of the International Commission of the River Oder, Judgment No. 16, 1929, P.C.I.J., Series A, No. 23, p. 27).
Modern development of international law has strengthened this principle for non-navigational uses of international watercourses as well, as evidenced by the adoption of the Convention of 21 May 1997 on the Law of the Non-Navigational Uses of International Watercourses by the United Nations General Assembly.
The Court considers that Czechoslovakia, by unilaterally assuming control of a shared resource, and thereby depriving Hungary of its right to an equitable and reasonable share of the natural resources of the Danube - with the continuing effects of the diversion of these waters on the ecology of the riparian area of the Szigetköz - failed to respect the proportionality which is required by international law.
86. Moreover, as the Court has already pointed out (see paragraph 78), the fact that Hungary had agreed in the context of the original Project to the diversion of the Danube (and, in the Joint Contractual Plan, to a provisional measure of withdrawal of water from the Danube) cannot be understood as having authorized Czechoslovakia to proceed with a unilateral diversion of this magnitude without Hungary's consent.
87. The Court thus considers that the diversion of the Danube carried out by Czechoslovakia was not a lawful countermeasure because it was not proportionate. It is therefore not required to pass upon one other condition for the lawfulness of a countermeasure, namely that its purpose must be to induce the wrongdoing State to comply with its obligations under international law, and that the measure must therefore be reversible.
[pp. 182-183 D.O. Herczegh] State of necessity is a very
narrow concept in general international law. In the course of the International
Law Commission's work on the codification of State responsibility, the great
majority of its members were of the view "that any possibility of the
notion of state of necessity being applied where it is really dangerous must
certainly be prevented, but that this should not be so in cases where it is and
will continue to be [a] useful ..." "The imperative need for
compliance with the law must not be allowed to result in situations so aptly
characterized by the maxim summum jus summa injuria" (Yearbook of the
International Law Commission, 1980, Vol. 11, Part 2, p. 49, para. 31). Thus
the International Law Commission, expressing an almost general approach and
conviction, stressed that the situation had to involve an "essential"
interest of the State in question. That "essential" character
naturally depends upon the circumstances in which a State finds itself, which
cannot be defined beforehand, in the abstract. The peril threatening the
essential interest must be extremely grave and imminent, and it must have been
avertable only by means conflicting with an international obligation. In a state
of necessity, there is a
"grave danger to the existence of the State itself, to its political or economic survival, the maintenance of conditions in which its essential services can function, the keeping of its internal Peace, the survival of part of its population, the ecological preservation of all or some of its territory ..." (ibid., p. 35, para. 3).
Invoking a state of necessity is not a way to terminate treaty obligations lawfully, that is, to terminate an international treaty. However, the party in question will be released from the consequences of the violation of international law, since it acted in a state of necessity. The state of necessity is a circumstance which exonerates from responsibility: in other words, it exonerates the author of the unlawful act from that international responsibility. Hence the problem has not been resolved - and cannot be resolved - by the law of treaties, but pertains to the provisions of the international law of State responsibility.
[pp. 212-213 D.O. Fleischhauer] The principle that no State may profit from its own violation of a legal obligation does not condone excessive retaliation. The principle, as stated by the Permanent Court and applied to the present case, means that one Party, Hungary, would not be entitled to avail itself of the fact that the other Party, Czechoslovakia, has not fulfilled an obligation if the first Party, Hungary, has by an illegal act prevented the other, Czechoslovakia, from fulfilling the obligation in question. This, however, is not the case here. The obligation not fulfilled by Czechoslovakia is the duty to respect Hungary's entitlement to an equitable and reasonable share in the waters of the Danube. Hungary has not made it impossible for Czechoslovakia to respect that right; as I have pointed out above, the unilateral realization of Variant C by Czechoslovakia was neither automatic nor the only possible reaction to Hungary's breaches of the Treaty. A broader interpretation of the principle in question which would disregard the requirement of proportionality, would mean that the right to countermeasures would go further, in respect to disproportionate intersecting violations of a treaty, as it goes under general international law. It is therefore wrong to apply the principle quite schematically to cases where there are intersecting ("reciprocal") violations of a treaty as the Court does where it states
"that although it has found that both Hungary and Czechoslovakia failed to comply with their obligations under the 1977 Treaty, this reciprocal wrongful conduct did not bring the Treaty to an end nor justify its termination" (para. 114).
[p. 222 D.O. Vereshchetin] The basic conditions for the lawfulness of a countermeasure are (1) the presence of a prior illicit act, committed by the State at which the countermeasure is targeted; (2) the necessity of the countermeasure; and (3) its proportionality in the circumstances of the case. Certain kinds of acts are entirely prohibited as countermeasures, but they are not relevant to the present case (these acts being the threat or use of force, extreme economic or political coercion, infringement of the inviolability of diplomatic agents, derogations from basic human rights or norms of jus cogens).
[p. 230-231 D.O. Vereshchetin] Article 30 of the International Law Commission's Draft on State Responsibility, which codifies general international law, provides:
"The wrongfulness of an act of a State not in conformity with an obligation of that State toward another State is precluded if the act constitutes a measure legitimate under international law against that other State, in consequence of an internationally wrongful act of that other State."
17. All the conditions required by Article 30 of the International Law Commission's Draft on State Responsibility are met in the present case. Variant C was conceived as a provisional and reversible solution (see para. 10 above), which may be explained as an attempt to induce Hungary to comply with its 1977 Treaty obligations and it cannot be considered a disproportionate reaction. Therefore, even assuming that the construction and the putting into operation of Variant C could be characterized as an internationally wrongful act committed by Czechoslovakia, its wrongfulness would be precluded because is was a legitimate countermeasure.
18. The Judgment takes a different view and
"considers that Czechoslovakia, by unilaterally assuming control of a shared resource, and thereby depriving Hungary of its right to an equitable and reasonable share of the natural resources of the Danube - with the continuing effects of the diversion of these waters on the ecology of the riparian area of the Szigetköz - failed to respect the proportionality which is required by international law" (see para. 85).
19. However, "the withdrawal of water from the Danube" is regulated by Article 14 of the 1977 Treaty. Not only Article 14 but also all the Treaty provisions that may support the conduct of Czechoslovakia, continued by Slovakia, have to be applied to determine whether or not it was lawful, since the Judgment acknowledges that the 1977 Treaty and related instruments are in force between the parties.
20. In my opinion, it is not necessary to choose between the aforementioned grounds to justify the action undertaken by Czechoslovakia, continued by Slovakia, because the juridical consequences are the same, i.e., the building and putting into operation of Variant C was not an internationally wrongful act committed by Czechoslovakia; and Slovakia, as its sole successor State, has not committed any internationally wrongful act in operating Variant C to date.