World Court Digest

---

---

I.	Substantive International Law - First Part
8.	VIOLATIONS OF INTERNATIONAL LAW AND RESPONSIBILITY OF STATES
8.3.	Treaty Violations

¤ Gabcíkovo-Nagymaros Project
(Hungary / Slovakia)
Judgment of 25 September 1997
I.C.J. Reports 1997, p. 7

[p. 54] 78. Moreover, in practice, the operation of Variant C led Czechoslovakia to appropriate, essentially for its use and benefit, between 80 and 90 per cent of the waters of the Danube before returning them to the main bed of the river, despite the fact that the Danube is not only a shared international watercourse but also an international boundary river.

Czechoslovakia submitted that Variant C was essentially no more than what Hungary had already agreed to and that the only modifications made were those which had become necessary by virtue of Hungary's decision not to implement its treaty obligations. It is true that Hungary, in concluding the l977 Treaty, had agreed to the damming of the Danube and the diversion of its waters into the bypass canal. But it was only in the context of a joint operation and a sharing of its benefits that Hungary had given its consent. The suspension and withdrawal of that consent constituted a violation of Hungary's legal obligations, demonstrating, as it did, the refusal by Hungary of joint operation; but that cannot mean that Hungary forfeited its basic right to an equitable and-reasonable sharing of the resources of an international watercourse.

The Court accordingly concludes that Czechoslovakia, in putting Variant C into operation, was not applying the 1977 Treaty but, on the contrary, violated certain of its express provisions, and, in so doing, committed an internationally wrongful act.

[p. 129 S.O. Bedjaoui] 35. In any event, in determining the legal validity of Variant C, the majority of the Court made a distinction between the actual construction of this "substitute solution", held to be lawful, and the actual diversion of the river, the final phase of Variant Q held to be unlawful. The various operations which make up Variant C are thus dissected as it were into so many slices of legal salami.

I cannot agree with this approach. In my opinion the construction of Variant C falls into one of the categories of breaches termed "continuing ", "composite" or "complex", depending on their characteristics, each phase or each element of which is unlawful.

---

---