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Case Concerning Gabcikobo-Nagymaros Project

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Yeji Kim

on 15 November 2012

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Transcript of Case Concerning Gabcikobo-Nagymaros Project

Issue: The essential object of the Treaty had permanently disappeared

Legal Base: Article 61, Paragraph 2

Plaintiff Argument: By 1992, Hungary contended, that the essential object of the Treaty had permanently disappeared, and the Treaty thus had become impossible to perform. In Hungary’s view, “object indispensable…” could also include “a legal situation which was the raison d’etre of the rights and obligations.”

Defendant Argument: Paragraph 1 clearly contemplates physical “disappearance or destruction” of the object in question

Court's Reasoning: Impossibility of performance was the result of a breach by that party – this was originally because Hungary did not carry out most of the works or which it was responsible under the 1977 Treaty.

Court Holding: Article 61, paragraph 2, of the Vienna Convention expressly provides that impossibility of performance may not be invoked, when it results from that party’s own breach. Thus, obligation still applies. Issues 1997 I.C.J. 7 V. Case Concerning
Gabcikovo-Nagymaros Project Hungary Slovakia A. The impossibility of performance as a result of a breach
B. The impossibility of performance as a result of a breach by that party

C. Fundamental changes of the circumstances
D. Fundmental changes of the circumstances including the change in attitude Intro Question Which one of the following may not be invoked as a ground for
terminating or withdrawing from the treaty? Terminating Withdrawing Invalidating Revising Gabcikovo-Nagymaros Projects G/N Intro of Case Gabcikovo-Nagymaros Project Slovakia v. Hungary,
1997 I.C.J 7 Facts When Who What Process Problem Initial Reaction Sue 1977 Czechoslovakia and Hungary Concluded a Treaty for
the building of dam at Danube river 1977 Slovakia v. Hungary Concluded a Treaty 1977
for the building of dam
at Danube river ICJ The construction initiated one year later in 1978 Gabcikovo's construction was going well, except - in 1989, Hungary gave up the construction in Nagymaro region Slovakia proceeded with the 'Variant C', which had effects on Hungary's access to the waters of Danube After series of unsuccessful negotiations, Hungary sent the termination notice to Slovakia Czechoslovakia divided into Czech Republic and Slovakia in 1993, and at the same time. Hungary and Slovakia signed the special treaty that they will tribute the dispute between two states about G/N project to ICJ After series of unsuccessful negotiations,
Hungary sent the termination notice to Slovakia Central Questions Whether Hungary's notification of 19 May 1992 brought the Treaty 1977 to an end

OR 1. Supervening impossibility of performance:
Project entailed grave risks to the Hungarian environment and the water supply of Budapest 2.The essential object of the Treaty
had permanently disappeared 3.Fundamental change of circumstances 4.Material breach of the treaty: Variant C - Subsequently imposed requirements of international law in relation to the protection of the environment precluded performance of the treaty 5. Violation of Treaty
and general int’l law
by Czechoslovakia In-Depth Analysis (cc) photo by medhead on Flickr (cc) photo by medhead on Flickr Issue: Supervening impossibility of performance

Legal Base : Article 61, Paragraph 1

Plaintiff Argument: Hungary declared that it could not be
“obliged to fulfill a practically impossible task that would cause irreparable environmental damage.” Plaintiff further argued that the project entailed grave risks to the Hungarian environment and the water supply of Budapest.

Defendant Argument: Denied.

Court Reasoning: The court examined the intentions of the diplomatic conference which adopted the Convention.

Court Holding : Hungary’s interpretation of the wording of the Article 51 is NOT in conformity with the terms of that Article. Thus, this cannot be invoked as a ground for terminating the treaty. Issue: Fundamental change of circumstances

Argument: Article 62

Plaintiff Argument:
1. Profound changes of a political nature – notion of socialist integration
2. Project’s diminishing economic viability – single and indivisible operational system
3. Progress of environmental knowledge and the development of new norms
4. Basis of investment overturned by the sudden emergence of both states into a market place
5. Transformation of a treaty consistent with environmental protection into “A prescription for environmental disaster”

Defendant Argument: the Changes identified by Hungary had not altered the nature of the obligations under the Treaty

Court Reasoning: I.C.J. Reports 1973, p.63, para 36 – Article 62 of the VCLT may… be considered a as a codification of existing customary law on the subject if the termination of a treaty … on account of change of circumstances.”

Court Holding: Court recalls that the prevalent political conditions were not so closely linked to the object and purpose of the joint-investment program Treaty. Furthermore, it does not appear that it was bound to diminish to such an extent that the treaty obligations of the parties would have been radically transformed as a result. Therefore, no entitlement to terminate it arose from them. Issue: Material breach of the treaty:
Variant C - Subsequently imposed requirements of international law in relation to the protection of the environment precluded performance of the treaty
Legal Base: Article 60

Plaintiff Argument: Especially, operation of Variant C also amounted to a material breach of the 1977 Treaty.

Defendant Argument: Denied any material breach of the obligations to protect water quality and nature. Slovakia also claimed that Variant C was devised as “the best possible approximate application” of the Treaty.

Court Reasoning: Slovakia only violated the Treaty only when it diverged the waters of the Danube into the bypass canal in October 1992.

Court Holding: In constructing the works which would lead to the putting into operation of Variant C, Czechoslovakia did not act unlawfully. Issue: Violation of Treaty/general int’l law by Czechoslovakia

Legal Base: Article 60

Plaintiff Argument: Slovakia had violated its Article 15, 19 and 20 as well as a number of other conventions and rules of general international law, especially, the Convention of 31 May 1976 on the Regulation of Water Management Issues of Boundary Waters.

Defendant Argument: None of the intervening developments in environmental law gave rise to norms of jus cogens that would override the treaty. Slovakia further contended that the claim by Hungary belonged “to the language of self-help or reprisals.”

Court Reasoning : The violation of other treaty rules or of the rules of general international law may justify the taking of certain measures including countermeasures, by injured state.

Court holding: The violation of other general international rules does not constitute a ground for termination under the law of treaties. Quick Revision & Summary Important Facts to be considered Relevancy of VCLT – Validity of Arguments The 1977 Treaty - Absence of Appropriate Clause Similar Case
Fisheries Jurisdiction case
(I.C.J. Reports 1973, p.63, para. 36)
UK & Northern Ireland v. Iceland Lessons to be learned
&
Conclusion Thank you! 1977 The construction initiated
one year later in 1978 After series of
unsuccessful negotiations,
Hungary sent the
termination notice
to Slovakia Czechoslovakia divided into Czech Republic and Slovakia in 1993,
Hungary and Slovakia signed the special treaty that they will tribute the dispute between two states about the G/N project to ICJ Whether it did not meet the requirements of international law, with the consequence that it did not terminate the Treaty 1. FACTS
2. CENTRAL Qs
3. ISSUES
4. ANALYSIS
5. REVISION
6. SIMILAR CASE
7. CONCLUSION Article 61
Supervening impossibility of performance
1. A party may invoke the impossibility of performing a treaty as a ground for terminating or
withdrawing from it if the impossibility results from the permanent disappearance or destruction of an
object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked
only as a ground for suspending the operation of the treaty.

2. Impossibility of performance may not be invoked by a party as a ground for terminating,
withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach by
that party either of an obligation under the treaty or of any other international obligation owed to any
other party to the treaty. Article 62
Fundamental change of circumstances
2. A fundamental change of circumstances may not be invoked as a ground for terminating or
(b) if the fundamental change is the result of a breach by the party invoking it either of an obligation
under the treaty or of any other international obligation owed to any other party to the treaty. Article 60
Termination or suspension of the operation of a treaty
as a consequence of its breach
1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the
breach as a ground for terminating the treaty or suspending its operation in whole or in part. YeJi Kim 0901525
PuReum Yim 1069068 1 2 3 4 5
Full transcript