|II.||Substantive International Law - Second Part|
(Hungary / Slovakia)
Judgment of 25 September 1997
I.C.J. Reports 1997, p. 7
[p. 56] 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.
[p. 79-80] 144. The 1977 Treaty not only contains a joint investment programme, it also establishes a regime. According to the Treaty, the main structures of the System of Locks are the joint property of the Parties; their operation will take the form of a co-ordinated single unit; and the benefits of the project shall be equally shared.
Since the Court has found that the Treaty is still in force and that, under its terms, the joint régime is a basic element, it considers that, unless the Parties agree otherwise, such a regime should be restored.
147. Re-establishment of the joint régime will also reflect in an optimal way the concept of common utilization of shared water resources for the achievement of the several objectives mentioned in the Treaty, in concordance with Article 5, paragraph 2, of the Convention on the Law of the Non-Navigational Uses of International Watercourses, according to which:
"Watercourse States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse and the duty to cooperate in the protection and development thereof, as provided in the present Convention." (General Assembly Doc. A/Sl/869 of 11 April l997.)
[pp. 149-150 S.O. Koroma] The implication of the Court's finding that the principle of equitable utilization was violated by the diversion of the river is not free from doubt. That principle, which is now set out in the Convention on the Non-Navigational Uses of International Watercourses, is not new.
While it is acknowledged that the waters of rivers must not be used in such a way as to cause injury to other States and in the absence of any settled rules an equitable solution must be sought (case of the Diversion of Water from the Meuse, Judgment, 1937, P.C.I.J., Series A/B, No. 70), this rule applies where a treaty is absent. In the case under consideration Article 14, paragraph 2, of the 1977 Treaty provides that the contracting parties may, without giving prior notice, both, withdraw from the Hungarian-Czechoslovak section of the Danube, and subsequently make use of the quantities of water specified in the water balance of the approved Joint Contractual Plan. Thus, the withdrawal of excess quantities of water from the Hungarian-Czechoslovak section of the Danube to operate the Gabèíkovo section of the system was contemplated with compensation to the other party in the form of an increased share of electric power. In other words, Hungary had agreed within the context of the Project to the diversion of the Danube (and, in the Joint Contractual Plan, to a provisional measure of withdrawal of water from the Danube). Accordingly, it would appear that the normal entitlement of the Parties to an equitable and reasonable share of the water of the Danube under general international law was duly modified by the 1977 Treaty which considered the Project as a lex specialis. Slovakia was thus entitled to divert enough water to operate Variant C, and more especially so if, without such diversion, Variant C could not have been put into productive use. It is difficult to appreciate the Court's finding that this action was unlawful in the absence of an explanation as to how Variant C should have been put into operation. On the contrary, the Court would appear to be saying by implication that, if Variant C had been operated on the basis of a 50-50 sharing of the waters of the Danube, it would have been lawful. However, the Court has not established that a 50-50 ratio of use would have been sufficient to operate Variant C optimally. Nor could the Court say that the obligations of the Parties under the Treaty had been infringed or that the achievement of the objectives of the Treaty had been defeated by the diversion. In the case concerning the Diversion of Water from the Meuse, the Court found that, in the absence of a provision requiring the consent of Belgium, "the Netherlands are entitled ... to dispose of the waters of the Meuse at Maestricht" provided that the treaty obligations incumbent on it were not ignored (Judgment, 1937, P.C.I.J., Series A/B, No. 70, p. 30). Applying this test in the circumstances which arose, Variant C can be said to have been permitted by the 1977 Treaty as a reasonable method of implementing it. Consequently Variant C did not violate the rights of Hungary and was consonant with the objectives of the Treaty régime.
Moreover the principle of equitable and reasonable utilization has to be applied with all the relevant factors and circumstances pertaining to the international watercourse in question as well as to the needs and uses of the watercourse States concerned. Whether the use of the waters of a watercourse by a watercourse State is reasonable or equitable and therefore lawful must be determined in the light of all the circumstances. To the extent that the 1977 Treaty was designed to provide for the operation of the Project, Variant C is to be regarded as a genuine attempt to archive that objective.
[p. 189 D.O. Herczegh] The dispute between the two Parties is very much the result of their geographical situations. The harmonization of the interests of the countries upstream and downstream is the crucial problem of the law governing international watercourses. During the work done by the United Nations on the Draft Convention on the Law of the Non-Navigational Uses of International Watercourses, the upstream countries complained that the provisions of the draft limited their right to use and develop the resources of those watercourses, whereas the downstream countries criticized the provisions of the draft by maintaining that they failed to protect their interests adequately and even allowed significant damage to be inflicted upon them. As far as the course of the Danube is concerned, Slovakia is an upstream country and Hungary a downstream country. In this Judgment the Court should have maintained a balance, admittedly hard to achieve, between the interests of the upstream and the downstream countries, and have ensured that harmonious progress in enhancement of the natural resources would be carefully organized to prevent the long-term disadvantages from outweighing the immediate advantages. Unfortunately, in the present case, it has not succeeded in doing so.
[pp. 202-203 D.O. Herczegh] The most important point in that regard is the equitable and reasonable sharing of the Danube waters. The Judgment of the Court cites Article 5, paragraph 2, of the Convention on the Law of the Non-Navigational Uses of International Watercourses, according to which:
"Watercourse States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse and the duty to co-operate in the protection and development thereof, as provided in the present Convention." (Para. 147.)
That principle, which may rightly be deemed to express a general rule of international law in force, is relevant to the settlement of the dispute in this case. The unlawfulness of Variant C lay in the appropriation by Czechoslovakia, then by Slovakia, of almost all the Danube waters, a shared natural resource. That unilateral use must cease as soon as possible and definitively. That aim can be achieved by "associating Hungary, on an equal footing, in the operation and management, and the benefits" of the works built to date in fulfilment of the 1977 Treaty or outside and against it, and that by way of the agreed utilization of the natural resources of the Danube in the sector in question. This would provide a remedy for the breach of international law constituted by Variant C, and the de facto status would be transformed into a régime of law.
[p. 217 D.O. Fleischhauer] The fifth starting point for the determination of the legal consequences of the Court's Judgment must be the fact that as a consequence of the Judgment the flow of water in the old bed of the Danube will be increased again. Irrespective of whether and to what extent navigation will use the old Danube again, there will be a discernible principal channel. There will therefore be no necessity for new or additional boundary arrangements. However, Slovakia, as a riparian State of the Danube and a party to the 1948 Danube Convention, will be under the legal obligation to make binding arrangements with the other States parties to the Danube Convention in order to secure for their navigation through the bypass canal, the Gabèíkovo locks and the Èunovo reservoir, conditions corresponding to those provided for in the Danube Convention. On the same line, Slovakia will also be under a legal obligation to provide for the application, in the bypass canal and in the reservoir, of the provisions concerning fisheries of the 1956 Treaty concerning the Régime of State Boundaries as well as of the 1958 Convention concerning Fishing in the Waters of the Danube.