Gabčíkovo-Nagymaros Project (Hungary/Slovakia)

Model International Court of Justice (MICJ)

Case #3

Slovak Republic (Respondent)

Akansas Model United Nations (AMUN) November 20-21, 2020

Slovak Republic’s Response

The Slovak Republic (Slovakia) respectfully requests that the International Court of Justice (ICJ) reject the pleading from Hungary that justified the suspension and abandonment of their duties in the completion of the Gabčíkovo-Nagymaro project in

1989.

Slovakia feels that this ruling of order would allow for a nation to unlawfully resign or remove themselves from commitments made in treaties through loose interpretation of the 1960 Vienna Convention on the Law of Treaties.

The Slovak Republic argues that it maintained and did not violate the rulings of the Vienna Convention on the Law of Treaties regarding termination of a treaty upon the implementation of Variant C in the Budapest Treaty.

Moreover, Slovakia rejects Hungary’s claims for just termination of the Budapest

Treaty under the limited grounds of the Vienna Convention, specifically those of impossibility of performance, fundamental change in circumstance, and/or material breach by the Slovak Republic (former Czechoslovakia).

Slovakia argues that the ruling of the ICJ regarding the Budapest Treaty is legitimate and ought to remain. Since no provision for withdrawal or termination of the

Budapest Treaty existed, the Slovak Republic acknowledges the provisions under

Article 60 of the Vienna Conventions, but urges the Court to consider the framework, circumstances, and current political environment when interpreting the treaty. Slovakia requests that the ICJ reject the legality of Hungary’s claims for rightful termination of

2 treaty and subsequent claims that the Slovak Republic performed an act of material breach under the Vienna Convention.

Historical Background

Czechoslovakia was established as a sovereign state in 1918 following the aftermath of World War I. After its occupation by Nazi Germany from 1938-1945, it became a people’s republic heavily influenced and monitored by the Soviet Union. In

1989, the country declared itself separate from the U.S.S.R and established a true multiparty democracy. In 1993, due primarily to disagreements over privatized industrialization and cultural differences between Slavs and Czechs, Czechoslovakia peacefully broke into two autonomous countries: the Czech Republic and the Slavic

Republic.i

The original concept for the Gabčíkovo-Nagymaros project dates back to the

1950’s under the Council for Mutual Economic Assistance (COMECON) whose purpose was to provide financial assistance from the Soviet Union to other communist states.

The project had four purposes: electricity production, smoother navigations, flood protections, and to spur regional development that would act as a catalyst for infrastructure investments—such as roads and waste-water management—while also reducing the countries’ oil dependencies.ii

On 16 September 1977, both countries signed a treaty for the construction and operation of the Gabčíkovo-Nagymaros Barrage System along the Danube River. The system entailed two systems of locks, one in Gabčíkovo region (then south-central

Czechoslovak territory) and the other in the northern Nagymaros Region of Hungary.iii

The lock in Slovak territory would produce peak electricity and the downstream step in

Hungary would maintain a constant flow of electricity. Effectively known as the

Budapest Treaty, both countries agreed to the construction and use of dams along the

Danube River for improvements to electricity, flood control, and navigation along the

Bratislava-Budapest section of the river.

The Budapest Treaty included provisions to limit environmental impacts by claiming that the treaty ought not to affect/hurt water quality or damage the natural environment while securing fishing interests.ii However, no environmental impact statement was made, so the potential damage of the completed project was unknown.

In 1989, Hungary abandoned the project, citing environmental damage and adverse effects to Budapest’s water supply. Slovakia insisted that Hungary carry out the project as originally planned, to which Hungary refused. Slovakia then put their own plan (Variant C) into place to utilize the dam which consequently limited Hungary’s access to the Danube river.

On 19 May 1992, the Hungarian government issued a note verbale to the

Czechoslovakian government terminating the 1977 Budapest Treaty effective from the

25th of May 1992 onwards. Czechoslovakia then began damming the river (Variant C) that October, two months before the country separated into the Czech and Slovak

Republics.iv

In April of 1993, the Slovak and Hungarian governments jointly requested that the ICJ rule on the following issues between the nations:

a) “whether the Republic of Hungary was entitled to suspend and subsequently abandon, in 1989, the works on the Nagymaros Project and on the part of the 4

Gabcíkovo Project for which the Treaty attributed responsibility to the Republic of Hungary (b) whether the Czech and Slovak Federal Republic was entitled to proceed, in November 1991, to the "provisional solution" and to put into operation from October 1992 this system ... (damming up of the Danube at river kilometer 1851.7 on Czechoslovak territory, with resulting consequences on water and navigation course)”iv

Budapest Treaty (1977)

The 1977 Budapest Treaty “provid(ed) for the construction and operation of a system of Locks by the parties as a "joint investment.” iv According to the preamble, the artificial dam would increase the river’s depth and divert a part of the water for irrigation while attaining “the broad utilization of the natural resources of the Bratislava-Budapest section of the Danube river for the development of water resources, energy, transport, agriculture and other sectors of the national economy of the Contracting Parties.” iv

Article I Paragraph I describes the primary works to be built, including systems of locks, canals, the deepening of riverbeds, and flood reinforcement, of which, Hungary was specifically tasked with building a dam in Dunakiliti and the system of locks in the

Nagymaros region.

In May 1989, Hungary suspended its work on the Nagymaros until certain scientific studies were completed. In July, Hungary expanded the suspension until the

31 October 1989 in addition to halting work on Dunakiliti. On the 27th of October,

Hungary decided to abandon any further construction in Nagymaros and maintain the status quo in Dunakiliti, citing environmental and economic costs.

During this period, the two countries attempted to negotiate the terms of the agreement and Czechoslovakia began constructing alternatives, one of which was

5 called “Variant C.” Under Variant C, the river would be unilaterally divided on its territory, five miles upstream of where the Nagymaros locks would have been constructed. This would also entail the construction of a dam at Cunovo and “ an intake structure to supply the Mosoni Danube; a weir to enable, inter alia, floodwater to be directed along the old bed of the Danube; an auxiliary shiplock; and two hydroelectric power plants (one capable of an annual production of 4 GWh on the Mosoni Danube, and the other with a production of 174 GWh on the old bed of the Danube.” iv The

Slovak government decided to continue construction of the project in July 1991, despite

Hungarian concerns of water supply and environmental degradation.

The European Communities offered to mediate a meeting between Hungary and

Slovakia in October 1922 where it decided that the countries submit their case to the

ICJ. Because the 1977 Treaty had no provision for withdrawal, the courts referred to

Section 1 of Article 56 of the Vienna Convention on the Law of Treaties:

1. A treaty which contains no provision regarding its termination, and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless: a. It is established that the parties intended to admit the possibility of denunciation or withdrawal; or b. A right of denunciation or withdrawal may be implied by the nature of the treaty. 2. A party shall give not less than twelve months' notice of its intention to denounce or withdraw from a treaty under paragraph 1v In other words, if a treaty does not provide for termination, it can only be terminated on the limited scenarios stated in the Vienna Convention. There are five such scenarios:

1. The existence of a state of necessity 2. The impossibility to perform the tasks delegated by the treaty 3. The occurrence of a fundamental change in circumstances

4. A material breach by one of the parties 5. The development of new norms of international law v Of these, Hungary argued that the impossibility to perform tasks, the occurrence of a fundamental change in circumstances, and a material breach by Czechoslovakia justified Hungary’s termination of the treaty. Under Article 61, Paragraph I, Hungary stated that the disappearance of a recognized legal regime (as both countries had established different governments since the formation of the original treaty) constituted as “the permanent disappearance or destruction of an object indispensable to the execution of the treaty,” v therefore making it impossible to complete the duties assigned in 1977.

Hungary also stated that there had been a fundamental change in circumstances, unforeseen by either party, that justified withdrawing from the treaty, citing Article 62 of the Vienna Convention.

(a) “The existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) The effect of the change is radically to transform the extent of obligations still to be performed under the treaty.” v The first event was the fall of communism, the second being the decreasing economic value of completing the project, the third that there was increased environmental knowledge of the project’s impact, and lastly that drastic developments in environmental and international law had occurred. vi

Lastly, Hungary argued that Czechoslovakia had committed two material breaches of the Treaty by continuing construction on the Danube through Variant C and by refusing to enter negotiations with Hungary to adapt the Danube Project amid new knowledge of environmental impacts. Hungary claimed this was a violation of Article 60

7 of the Vienna Convention which states that such breaches are legal grounds for termination or noncompliance of a treaty.

The ICJ rejected all four of Hungary’s claims. According to the court, the 1977

Treaty had provisions to adjust the project if necessary. Furthermore, if it was indeed impossible to complete the provisions of the treaty, it was because Hungary had not fulfilled its obligations. Regarding the fundamental changes in circumstances, the court ruled that recent changes in political nature were not tied to the completion of the project, therefore invalidating the first and second events. Both environmental and international advancements in knowledge was not unforeseen, making the third and fourth event insufficient grounds for claiming fundamental changes in circumstances.

Lastly, the ICJ ruled that there was not sufficient evidence to prove that Czechoslovakia had refused negotiations in 1989, and at the time that Hungary had submitted its notification of termination to Czechoslovakia in May of 1992, the latter country had not yet begun implementing Variant C, therefore not violating any treaty provisions. iii

The ICJ also determined that Hungary was in violation of procedural rules under the Vienna Convention. Act 65 states that a country is required to receive a note verbal at least three months before the date of termination; Hungary provided only five days.vi

Recent Development

The government of the Slovak Republic asserts that the Republic of Hungary has used Articles 60 thru 64 to uphold its wrongful termination of the 1977 Budapest Treaty.

The original treaty included duties and obligations of both nations to complete a series

8 of construction work along the Danube River to improve hydroelectricity and commerce while preserving aspects of the physical environment.

Having failed to provide evidence within the original Treaty itself, Hungary has resorted to Article 51, Section 1 to bring its case to the court. The Slovak Republic offers two pieces of evidence to support its claim that Hungary is simply using the rapidly changing political, social, and economic environments to shirk its obligations.

For one, Hungary claimed that Czechoslovakia had refused to negotiate the terms of the treaty in 1989; however, there is no evidence for that. Furthermore, any claims from Hungary that the Slovak Republic does not have the jurisdiction to defend this case since it was formally Czechoslovakia need only to refer to Article II Paragraph

II and Article V of the Special Agreement which named Slovakia as a successor to

Czechoslovakia. iv

Secondly, Hungary’s failure to comply with the procedures regarding note verbal illustrate that the country does not fully adhere to international customary law as it is.

Had Hungary actually wanted to re-negotiate the terms of the Gabčíkovo-Nagymaros

Project, it would have followed the proper procedure as outlined in the Vienna

Convention.

Slovakia feels that Hungary’s attempted termination of the Treaty in 1992 should not have legal effect.

Summary

Slovakia strongly contends that the ICJ reject Hungary’s pleadings for justification of violating the 1977 Treaty.

To allow Hungary to break the treaty on the grounds of impossibility to perform tasks and the occurrence of a fundamental change in circumstances would be a serious breach of international customary law. Furthermore, Hungary’s claims of material breaches from the Czechoslovakian government is an additional violation of the Vienna

Convention.

The Slovak Republic has invested significant resources in the construction along the Danube to uphold its obligations and has not breached any of the terms detailed under the 1977 Treaty.

It is Slovakia’s hope that Hungary will acknowledge its illegitimate claims to dissolving the Budapest Treaty and therefore commit to its previous engagements or agree to diplomatic negotiation to amend the treaty. It is Slovakia’s hope that the court will rule in favor of the Slovak Republic.

Endnotes

i “A Guide to the United States’ History of Recognition, Diplomatic, and Consular Relations, by Country since 1776: Czechoslovakia.” U.S. Department of State: Office of the Historian. Accessed November 1, 2020. https://history.state.gov/countries/czechoslovakia ii Okowa, Phoebe N., and Malcolm D. Evans. "Case concerning the Gabcïkovo- Nagymaros Project (Hungary/Slovakia)." The International and Comparative Law Quarterly 47, no. 3 (1998): 688-97. Accessed November 1, 2020. http://www.jstor.org/stable/761430. iii “Summary of the Decisions: The Gabcíkovo-Nagymaros Project. (1997).” Max-Planck- Institute. Accessed September 11, 2020. https://www.mpil.de/de/pub/publikationen/archiv/world-court- digest.cfm?fuseaction_wcd=aktdat&aktdat=dec0305.cfm iv “Case concerning the Gabcikovo-Nagmaros Project (1997).” International Court of Justice. Accessed September 11, 2020. https://www.tjsl.edu/slomansonb/envHunSlov.html v Vienna Convention on the Law of Treaties.” United Nations. Accessed November 1, 2020. https://treaties.un.org/doc/publication/unts/volume%201155/volume-1155-i- 18232-english.pdf vi Nguyen, Lan. “Gabcikovo-Nagmaros Project: Hungary/Slovakia.” Universiteit Utrecht. Accessed November 1, 2020. https://www.youtube.com/watch?v=2zdduP5Tfhs