153

DISSENTING OPINION OF JUDGE ODA

INTRODUCTION

1. | have voted against operative paragraph 1C of the Judgment
(para. 155) as | am totally unable to endorse the conclusions that, on the
one hand, “Czechoslovakia was entitled to proceed, in November 1991,
to the ‘provisional solution’” and, on the other hand, that “Czechoslo-
vakia was not entitled to put into operation, from October 1992, this
‘provisional solution’” and I cannot subscribe to the reasons given in the
Judgment in support of those conclusions.

I] have also voted against operative paragraph 2D (para. 155). I have
done so because the request made by myself and other judges to separate
this paragraph into two so that it could be voted on as two separate
issues was simply rejected for a reason which I do not understand. I have
therefore had to vote against this paragraph as a whole, although I had
wanted to support the first part of it.

] am in agreement with the conclusions that the Court has reached on
the other points of the operative paragraph of the Judgment. However,
even with regard to some of the points which [ support, my reasoning
differs from that given in the Judgment. I would like to indicate several
points on which I differ from the Judgment through a brief presentation
of my overall views concerning the present case.

I. THE 1977 TREATY AND THE JOINT CONTRACTUAL PLAN (JCP)
FOR THE GABCIKOVO-NAGYMAROS SYSTEM OF Locks

2. (The Project.) The dispute referred to the Court relates to a Project
concerning the management of the river Danube between Bratislava and
Budapest, which a number of specialists serving the Governments of
Czechoslovakia and Hungary, as well as those employed in corporations
of those two States (which were governed in accordance with the East
European socialist régime), had been planning since the end of the
Second World War under the guidance of the Soviet Union.

It is said that Hungary had, even before the rise of the communist
régime, proposed the building of a power plant at Nagymaros on Hun-
garian territory. However, with the co-operation of the socialist countries
and under the leadership of the Soviet Union, the initiative for the man-
agement of the river Danube between Bratislava and Budapest was taken
over by Czechoslovakia, and the operational planning was undertaken by
technical staff working for COMECON.

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154 GABCIKOVO-NAGYMAROS PROJECT (DISS. OP. ODA)

The Project would have entailed the construction of (i) a bypass canal
to receive water diverted at the Dunakiliti dam (to be constructed on
Hungarian territory) and (11) two power plants (one at Gabtikovo on the
bypass canal on Czechoslovak territory and one at Nagymaros on Hun-
garian territory). It may well have been the case that the bypass canal was
also required for the future management of the river Danube with respect
to flood prevention and the improvement of international navigation
facilities between Bratislava and Budapest. However, the bypass canal
was aimed principally at the operation of the Gabtikovo power plant on
Czechoslovak territory and the Dunakiliti dam, mostly on Hungarian
territory, was seen as essential for the filling and operation of that canal,
while the Nagymaros System of Locks on Hungarian territory was to
have been built for the express purpose of generating electric power at
Nagymaros and partially for the purpose of supporting the peak-mode
operation of the Gabtikovo power plant.

The whole Project would have been implemented by means of “joint
investment” aimed at the achievement of “a single and indivisible opera-
tional system of works” (1977 Treaty, Art. 1, para. 1).

3. (The 1977 Treaty.) The Project design for the Gabëikovo-Nagy-
maros System of Locks had been developed by administrative and tech-
nical personnel in both countries and its realization led to the conclusion,
on 16 September 1977, of the Treaty Concerning the Construction and
Operation of the Gab¢ikovo-Nagymaros System of Locks. I shall refer to
this Treaty as the 1977 Treaty.

The 1977 Treaty was signed by the Heads of each Government (for
Czechoslovakia, the Prime Minister; for Hungary, the Chairman of the
Council of Ministers), and registered with the United Nations Secretariat
(UNTS, Vol. 236, p. 241). It gave, on the one hand, an overall and gen-
eral picture (as well as some details of the construction plan) of the
Project for the Gabéikovo-Nagymaros System of Locks (which would,
however, have in essence constituted a “partnership” according to the
concept of municipal law) (see 1977 Treaty, Chaps. I-IV), while, on
the other hand, it aimed, as an ordinary international treaty, to serve
as an instrument providing for the rights and duties of both parties in
relation to the future management of the river Danube (see 1977 Treaty,
Chaps. V-X]).

Under the plan described in the 1977 Treaty, the cost of the “joint
investment” in the system of locks was to have been borne by the respec-
tive parties and the execution of the plan, including labour and supply,
was to have been apportioned between them (1977 Treaty, Art. 5). The
Dunakiliti dam, the bypass canal, the Gabéikovo series of locks and the
Nagymaros series of locks were to have been owned jointly (1977 Treaty,
Art. 8) and the parties assumed joint responsibility for the construction
of those structures. More concretely, the project for the diversion of the
waters of the river Danube at Dunakiliti (on Hungarian territory) into

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the bypass canal (on the territory of Czechoslovakia), and the construc-
tion of the dams together with the power stations at Gabüikovo and
Nagymaros were to have been funded jointly by the parties. The electric
power generated by those two power stations was to have been available
to them in an equal measure (1977 Treaty, Art. 9).

It must be noted, however, that the 1977 Treaty does not seem to have
been intended to prescribe in detail the content of the construction plan,
that being left to the Joint Construction Plan to be drafted by the parties
— which, for the sake of convenience, I shall refer to as the JCP. While
some detailed provisions in Chapters I-IV of the 1977 Treaty concerning
the completion of the Project did in fact, as stated above, correspond to
provisions subsequently incorporated into the JCP, the Preamble to the
1977 Treaty confines itself to stating that “[Hungary and Czechoslovakia]
decided to conclude an Agreement concerning the construction and
operation of the Gabèikovo-Nagymaros System of Locks”. The 1977
Treaty lacks the form of words usually present in any international treaty
which generally indicates that the parties have thus agreed the following
text (which text usually constitutes the main body of the treaty). This fact
further reinforces the view that the 1977 Treaty is intended only to indi-
cate the basic construction plan of the Project and to leave the details of
planning to a separate instrument in the form of the JCP.

4. (The Joint Contractual Plan.) The drafting of the JCP was already
anticipated in the Agreement regarding the Drafting of the Joint Con-
tractual Plan concerning the Gabéikovo-Nagymaros Barrage System of
6 May 1976 (hereinafter referred to as the 1976 Agreement !), signed by
plenipotentiaries at the level of Deputy Minister. The Hungarian transla-
tion states in its Preamble that

“(the parties] have decided on the basis of a mutual understanding
with regard to the joint implementation of the Hungary-Czechoslo-
vakia Gabëikovo-Nagymaros Barrage System . . . to conclude an
Agreement for the purpose of drafting a Joint Contractual Plan for
the barrage system”.

As stated above, the 1976 Agreement was concluded in order to facilitate
the future planning of the Project and the 1977 Treaty provided some
guidelines for the detailed provisions to be included in the JCP, which
was to be developed jointly by the representatives of both States as well
as by the enterprises involved in the Project. The time-schedule for the
implementation of the construction plan was subsequently set out in the
Agreement on Mutual Assistance in the Course of Building the Gab-

' This Agreement is not to be found, even in the World Treaty Index, 1983. The English
text is to be found in the documents presented by both Parties but they are not identical
(Memorial of Slovakia, Vol. 2, p. 25: Memorial of Hungary. Vol. 3, p. 219).

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156 GABCIKOVO-NAGYMAROS PROJECT (DISS. OP. ODA)

cikovo-Nagymaros Dam of 16 September 1977 (hereinafter referred to as
the 1977 Agreement’), the same date on which the 1977 Treaty was
signed*. It was not made clear whether those two Agreements of 1976
and 1977 themselves constituted the JCP or whether the JCP would be
further elaborated on the basis of these Agreements.

In fact, the text of the JCP seems to have existed as a separate instru-
ment but neither Party has submitted it to the Court in its concrete and
complete form. A “summary description” of the JCP, dated 1977, was
presented by Hungary (Memorial of Hungary, Vol. 3, p. 298) while Slo-
vakia presented a “summary report” as a part of the “JCP Summary
Documentation” (Memorial of Slovakia, Vol. 2, p. 33). Neither of those
documents gave a complete text but they were merely compilations of
excerpts. Neither document gave a precise indication of the date of draft-
ing. What is more, one cannot be certain that those two documents as
presented by the two Parties are in fact identical. The Judgment appar-
ently relies on the document presented by Hungary and received in the
Registry on 28 April 1997 in reply to a question posed by a Judge on
15 April 1997 during the course of the oral arguments. This document,
the Joint Contractual Plan’s Preliminary Operating Rules and Mainte-
nance Mode, contains only extremely fragmentary provisions. I submit
that the Court did not, at any stage, have sufficient knowledge of the JCP
in its complete form.

5. (Amendment of the Joint Contractual Plan.) 1 would like to repeat
that the JCP is a large-scale plan involving a number of corporations of
one or the other party, as well as foreign enterprises, and that the JCP, as
a detailed construction plan for the whole Project, should not be consid-
ered as being on the same level as the 1977 Treaty itself which, however,
also laid down certain guidelines for the detailed planning of the Project.
As in the case of any construction plan of a “partnership” extending over
a long period of time, the JCP would in general have been, and has been
in fact, subject to amendments and modifications discussed between the
parties at working level and those negotiations would have been under-
taken in a relatively flexible manner where necessary, in the course of the
construction, without resort to the procedures relating to amendment of
the 1977 Treaty. In other words, the detailed provisions of the construc-
tion plan of the JCP to implement the Project concerning the Gabtikovo-
Nagymaros System of Locks as defined in the 1977 Treaty should be
considered as separate from the 1977 Treaty itself.

? This Agreement is not to be found, even in the World Treaty Index, 1983. The English
text is to be found in the documents presented by both Parties but they are not identical
(Memorial of Slovakia, Vol. 2, p. 71: Memorial of Hungary, Vol. 3. p. 293).

* The time-limit for the construction plan was revised in the Protocol concerning the
Amendment of the [1977] Treaty signed on 10 October 1983; see also the Protocol con-
cerning the Amendment of the 1977 Agreement signed on 10 October 1983 and the Pro-
tocol concerning the Amendment of the 1977 Agreement signed on 6 February 1989.

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157 GABCIKOVO-NAGYMAROS PROJECT (DISS. OP. ODA)

6. (The lack of provision in the JCP for dispute settlement, ) One may
well ask how the parties should have settled any differences of views
which might have occurred between the two States with regard to the
design and planning of the construction or the amendment of that design.
The designing or the amendment of the design should have been effected
with complete agreement between the two parties but the 1976 Agree-
ment, which was the first document providing for the future design of the
JCP, scarcely contemplated the possibility of the two sides being unable
to reach an agreement in this respect. The 1976 Agreement states that, if
the investment and planning organs cannot reach a mutual understand-
ing on the issues which are disputed within the co-operation team, the
investors shall report to the Joint Committee for a solution. There was no
provision for a situation in which the Joint Committee might prove
unable to settle such differences between the parties. It was assumed that
there was no authority above the Joint Committee which would be com-
petent to determine the various merits of the plan or of proposed amend-
ments to it.

In view of the fact that this Project was to be developed by COMECON
under Soviet leadership, it may have been tacitly considered that no dis-
pute would ever get to that stage. In the event that no settlement could be
reached by the Joint Committee, one or the other party would inevitably
have had to proceed to a unilateral amendment. However, such an
amendment could not have been approved unconditionally but would
have had to have been followed by a statement of the legitimate reasons
underlying its proposal.

7. (The 1977 Treaty and the Joint Contractual Plan.) It is therefore my
conclusion that, on the one hand, the 1977 Treaty between Czechoslova-
kia and Hungary not only provided for a generalized régime of rights and
duties accepted by each of them in their mutual relations with regard to
the management of the river Danube (1977 Treaty, Chaps. V-XI), but
also bound the parties to proceed jointly with the construction of the
Gabtikovo-Nagymaros System of Locks (the construction of (i) the
Dunakiliti dam which would permit the operation of the bypass canal,
(ii) the Gabéikovo dam with its power plant and (iii) the Nagymaros dam
with its power plant). The construction of the Gabéikovo-Nagymaros
System of Locks might have constituted a type of “partnership”
which would have been implemented through the JCP (1977 Treaty,
Chaps. I-IV).

On the other hand, the JCP was designed to incorporate detailed items
of technical planning as well as provisions for their amendment or revi-
sion and did not necessarily have the same legal effect as the 1977 Treaty,
an international treaty.

Those two instruments, that is, the 1977 Treaty and the JCP (which

was designed and modified after 1977), should be considered as separate
instruments of differing natures from a legal point of view.

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II. THE SUSPENSION AND SUBSEQUENT ABANDONMENT
OF THE WORKS BY HUNGARY IN 1989

(Special Agreement, Art. 2, para. | fa); Art. 2, para. 2)
1. Special Agreement, Article 2, Paragraph I (a)

8. Under the terms of the Special Agreement, the Court is requested to
answer the question

“whether [Hungary] was entitled to suspend and subsequently aban-
don, in 1989, the works on the Nagymaros Project and on the part
of the Gabéikovo Project for which the Treaty attributed responsi-
bility to [Hungary]” (Art. 2, para. | (a/).

9. (Actual situation in the late 1980s.) This question put in the Special
Agreement should, in my view, have been more precisely worded to
reflect the actual situation in 1989. The work on the Gab¢ikovo Project
had by that time already been completed; the work at Nagymaros was
still at a preliminary stage, that is, the work on that particular barrage
system had, to all intents and purposes, not even started.

Hungary’s actions in 1989 may be summed up as follows: firstly, on
13 May 1989, Hungary decided to suspend work at Nagymaros pending
the completion of various environmental studies. Secondly, Hungary
decided, on the one hand, on 27 October 1989, to abandon the Nagy-
maros Project and, on the other, to maintain the status quo at Dunakiliti,
thus rendering impossible the diversion of waters to the bypass canal at
that location. Hungary had, however, made it clear at a meeting of the
plenipotentiaries in June 1989 that it would continue the work related to
the Gabëikovo sector itself, so the matter of the construction of the Gab-
éikovo Barrage System itself was not an issue for Hungary in 1989. The
chronology of Hungary’s actions is traced in detail in the Judgment.

10. (Violation of the 1977 Treaty.) Whatever the situation was in 1989
regarding the works to be carried out by Hungary, and in the light of the
fact that the failure to complete the Dunakiliti dam and the auxiliary
structures (the sole purpose of which was to divert water into the bypass
canal) would have made it impossible to operate the whole Gabéikovo-
Nagymaros System of Locks as “a single and indivisible operational sys-
tem of works” (1977 Treaty, Art. 1, para. 1), Hungary should have been
seen to have incurred international responsibility for its failure to carry
out the relevant works, thus being in breach of the 1977 Treaty. It is to be
noted that, at that stage, Hungary did not raise the matter of the termina-
tion of the 1977 Treaty but simply suspended or abandoned the works
for which it was responsible.

In the light of the actions taken by Hungary with regard to the Gab-
tikovo-Nagymaros System of Locks, there can be no doubt that in 1989
Hungary violated the 1977 Treaty. The question remains, however,
whether Hungary was justified in violating its treaty obligations. I fully
share the view of the Court when it concludes that

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159 GABCIKOVO-NAGYMAROS PROJECT (DISS. OP. ODA)

“Hungary was not entitled to suspend and subsequently abandon, in
1989, the works on the Nagymaros Project and on the part of the
Gabéikovo Project for which the [1977] Treaty . . . attributed respon-
sibility to it” (Judgment, operative paragraph 155, point 1 A)

and that Hungary’s wrongful act could not have been justified in any
way.

Let me examine the situation in more detail. Hungary relies, in connec-
tion with the Dunakiliti dam and the diversion of waters into the bypass
canal at Dunakiliti, upon the deterioration of the environment in the
Szigetkôz region owing to the reduced quantity of available water in the
old Danube river bed. In my view, however, the decrease in the amount
of water flowing into the old bed of the Danube as a result of the opera-
tion of the bypass canal would have been an inevitable outcome of the
whole Project as provided for in the 1977 Treaty.

11. (Hungary's ill-founded claim of ecological necessity.) Certain
effects upon the environment of the Szigetk6z region were clearly antici-
pated by and known to Hungary at the initial stage of the planning of the
whole Project. Furthermore, there was no reason for Hungary to believe
that an environmental assessment made in the 1980s would give quite dif-
ferent results from those obtained in 1977, and require the total aban-
donment of the whole Project.

I have no doubt that the Gabèikovo-Nagymaros System of Locks was,
in the 1970s, prepared and designed with full consideration of its poten-
tial impact on the environment of the region, as clearly indicated by the
fact that the 1977 Treaty itself incorporated this concept as its Article 19
(entitled Protection of Nature), and I cannot believe that this assessment
made in the 1970s would have been significantly different from an eco-
logical assessment 10 years later, in other words, in the late 1980s. It is a
fact that the ecological assessment made in the 1980s did not convince
scientists in Czechoslovakia.

I particularly endorse the view taken by the Court when rejecting the
argument of Hungary, that ecological necessity cannot be deemed to jus-
tify its failure to complete the construction of the Nagymaros dam, and that
Hungary cannot show adequate grounds for that failure by claiming that
the Nagymaros dam would have adversely affected the downstream water
which is drawn to the bank-filtered wells constructed on Szentendre
Island and used as drinking water for Budapest (Judgment, para. 40).

12. (Environment of the river Danube.) The 1977 Treaty itself spoke
of the importance of the protection of water quality, maintenance of the
bed of the Danube and the protection of nature (Arts. 15, 16, 19), and the
whole structure of the Gabtikovo-Nagymaros System of Locks was cer-
tainly founded on an awareness of the importance of environmental pro-
tection. It cannot be said that the drafters of either the Treaty itself or of

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the JCP failed to take due account of the environment. There were, in
addition, no particular circumstances in 1989 that required any of the
research or studies which Hungary claimed to be necessary, and which
would have required several years to be implemented. If no campaign
had been launched by environmentalist groups, then it is my firm convic-
tion that the Project would have gone ahead as planned.

What is more, Hungary had, at least in the 1980s, no intention of with-
drawing from the work on the Gabëikovo power plant. One is at a loss to
understand how Hungary could have thought that the operation of the
bypass canal and of the Gabéikovo power plant, to which Hungary had
not objected at the time, would have been possible without the comple-
tion of the works at Dunakiliti dam.

13. (Ecological necessity and State responsibility.) 1 would like to
make one more point relating to the matter of environmental protection
under the 1977 Treaty. The performance of the obligations under that
Treaty was certainly the joint responsibility of both Hungary and Czecho-
slovakia. If the principles which were taken as the basis of the 1977
Treaty or of the JCP had been contrary to the general rules of interna-
tional law — environmental law in particular — the two States, which
had reached agreement on their joint investment in the whole Project,
would have been held joint/y responsible for that state of affairs and
jointly responsible to the international community. This fact does not
imply that the one party (Czechoslovakia, and later Slovakia) bears
responsibility towards the other (Hungary).

What is more, if a somewhat more rigorous consideration of environ-
mental protection had been needed, this could certainly have been given
by means of remedies of a technical nature to those parts of the JCP —
not the 1977 Treaty itself — that concern the concrete planning or opera-
tion of the whole System of Locks. In this respect, I do not see how any
of the grounds advanced by Hungary for its failure to perform its Treaty
obligations (and hence for its violation of the Treaty by abandoning the
construction of the Dunakiliti dam) could have been upheld as relating to
a state of “ecological necessity”.

14. (General comments on the preservation of the environment.) Wf
I may give my views on the environment, I am fully aware that concern
for the preservation of the environment has rapidly entered the realm of
international law and that a number of treaties and conventions have
been concluded on either a multilateral or bilateral basis, particularly
since the Declaration on the Human Environment was adopted in 1972
at Stockholm and reinforced by the Rio de Janeiro Declaration in 1992,
drafted 20 years after the Stockholm Declaration.

It is a great problem for the whole of mankind to strike a satisfactory
balance between more or less contradictory issues of economic develop-

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161 GABCIKOVO-NAGYMAROS PROJECT (DISS. OP. ODA)

ment on the one hand and preservation of the environment on the other,
with a view to maintaining sustainable development. Any construction
work relating to economic development would be bound to affect the
existing environment to some extent but modern technology would, I am
sure, be able to provide some acceptable ways of balancing the two con-
flicting interests.

2. Special Agreement, Article 2, Paragraph 2

15. The Court is asked, under Article 2, paragraph 2, of the Special
Agreement, to

“determine the legal consequences, including the rights and obliga-
tions for the Parties, arising from its Judgment on the questions in
paragraph | of this Article”.

16. (Responsibility of Hungary.) In principle, Hungary must compen-
sate Slovakia for “the damage sustained by Czechoslovakia and by Slo-
vakia on account of the suspension and abandonment by Hungary of
works for which it was responsible”. I was, however, in favour of the
first part of operative paragraph 155, point 2D, of the Judgment. As }
stated at the outset, I had to vote against the whole of paragraph 155,
point 2D, as that first part of the paragraph was not put to the vote as a
separate issue.

17. (Difference between the Gabéikovo Project and the Nagymaros
Project.) When one is considering the legal consequences of the respon-
sibility incurred by Hungary on account of its violation of its obligations
to Czechoslovakia under the 1977 Treaty and the JCP, it seems to me
that there is a need to draw a further distinction between (1) Hungary’s
suspension of the work on the Dunakiliti dam for the diversion of water
into the bypass canal, which rendered impossible the operation of the
Gabéikovo power plant, and (ü) its complete abandonment of the work
on the Nagymaros System of Locks, each of which can be seen as having
a completely different character.

18. (The Dunakiliti dam and the Gabéikovo plant.) The construction
of the Dunakiliti dam and of the bypass canal, which could have been
filled only by the diversion of the Danube waters at that point, form the
cornerstone of the whole Project. Without the Dunakiliti dam the whole
Project could not have existed in its original form. The abandonment of
work on the Dunakiliti dam meant that the bypass canal would be
unusable and the operation of the Gabüikovo power plant impossible.
Hungary must assume full responsibility for its suspension of the
works at Dunakiliti in violation of the 1977 Treaty.

The reparation to be paid by Hungary to Slovakia for its failure in this
respect, as prescribed in the 1977 Treaty, will be considered in the fol-

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lowing part of this opinion, together with the matter of the construction
of the Cunovo dam by Czechoslovakia, which took over the function of
the Dunakiliti dam for the diversion of water into the bypass canal (see
para. 34 below).

19. (The Nagymaros dam — 1.) With regard to the Nagymaros dam,
Hungary cannot escape from its responsibility for having abandoned an
integral part of the whole Project. However, this matter is very different
from the situation concerning the Gabéikovo Project. In fact, the site
where the Nagymaros power plant was to have been built is located com-
pletely on Hungarian territory. Although the plant would also have sup-
plied electric power to Czechoslovakia just as the Gabëikovo power plant
would likewise have provided a part of its electric power to Hungary, the
amount of power to be produced by the Gabüikovo power plant was far
greater than that predicted for the Nagymaros power plant.

In 1989, Hungary seems to have found that the Nagymaros power
plant was no longer necessary to its own interests. If the Nagymaros dam
was initially considered to be a part of the whole Project, it was because
an equal share of the power output of the Nagymaros power plant was to
have been guaranteed to Czechoslovakia in exchange for an equal share
for Hungary of the electric power generated by the Gabëikovo power
plant. The anticipated supply of electric power from the Nagymaros
plant could have been negotiated taking into account the agreed supply
to Hungary of electric power from the Gabéikovo plant. The Nagymaros
dam would also have been required essentially in order to enable the
operation of the Gab¢ikovo power plant in peak mode and it might
therefore have been seen as not really essential to the Project as a whole.

20. (The Nagymaros dam — IT.) The matter of the equal shares of the
electric power from the Nagymaros power plant to be guaranteed to
Czechoslovakia and the feasibility of the operation of the Gabëikovo
power plant in peak mode could have been settled as modalities for the
execution of the JCP, even in the event of the abandonment of the Nagy-
maros power plant, as technical questions could be dealt with in the
framework of the JCP without any need to raise the issue of reparations
to be paid by Hungary to Czechoslovakia in connection with the aban-
donment of the Nagymaros dam.

There can be no doubt that the construction of the Nagymaros System
of Locks was seen as a major link in the chain of the whole Project in
connection with the construction of the Gabëikovo System of Locks on
Czechoslovak territory. The construction of the Nagymaros System of
Locks was, however, essentially a matter that fell within Hungary’s exclu-
sive competence on its own territory. In the late 1980s, Hungary found it
no longer necessary to produce electricity from the Nagymaros power
plant on its own territory, and the abandonment of the Nagymaros dam
did not, in fact, cause any significant damage to Czechoslovakia and

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did not have any adverse affect on interests that Czechoslovakia would
otherwise have secured.

In this connection, I must add that Czechoslovakia would have been
permitted under international law as prescribed in the Vienna Conven-
tion on the Law of Treaties to terminate the 1977 Treaty on the ground
of Hungary’s failure to perform the obligations of that Treaty. In fact,
however, Czechoslovakia did not do so but chose to implement the 1977
Treaty without Hungary’s co-operation because the completion of the
Project, as envisaged in the 1977 Treaty, would be greatly to its benefit.

Thus, although Hungary has to bear the responsibility for its abandon-
ment of the Nagymaros dam as a part of the joint project of the
Gabéikovo-Nagymaros System of Locks, the reparations that Hungary
should pay to the present-day Slovakia as a result are minimal (see para. 34
below).

TT. THe IMPLEMENTATION OF VARIANT € (DAMMING OF
THE WATERS AT CUNOVO) BY CZECHOSLOVAKIA

(Special Agreement, Art. 2, para. | /b); Art. 2, para. 2)
1. Special Agreement, Article 2, Paragraph 1 (b)

21. The Court is requested under the terms of the Special Agreement
to decide

“whether [Czechoslovakia] was entitled to proceed, in November
1991, to the ‘provisional solution’ and to put into operation
from October 1992 this system” (Art. 2, para. | (b)).

22. (Provisional solution = Variant C.) As Hungary had suspended
work on part of the Gabëikovo Project, more particularly the work at
Dunakilit, thus preventing the diversion of the water into the bypass
canal, the finalization of the whole Project, which was already nearly
70 per cent complete, was rendered impossible.

In order to accomplish the purpose of the 1977 Treaty, Czechoslo-
vakia, one of the parties to that Treaty, was forced to start work on the
diversion of the waters into a bypass canal that lay within its own terri-
tory. That was the commencement of the so-called “provisional solution”
— in other words, Variant C — in November 1991. Czechoslovakia had
previously made it clear to Hungary that, if Hungary were to abandon
unilaterally the works at Dunakiliti (which constituted the basis of the
whole Project between the two States), it would have to consider an alter-
native plan to accomplish the agreed original Project. Variant C was
designed by Czechoslovakia because it had no other option in order to
give life to the whole Project.

Since the agreed basic concept of the whole Project under the 1977

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Treaty had been jeopardized by Hungary, and since the benefit which
Czechoslovakia would have enjoyed as a result of the power plant at
Gabtikovo and all the benefits which would have been available to both
States with regard to international navigation as well as water manage-
ment (including flood prevention) of the river Danube had thereby been
threatened, it was permissible and not unlawful for. Czechoslovakia to
start work on Variant C (the construction of the Cunovo dam). This
would have an effect similar to the original plan contemplated in the 1977
Treaty, that is, the diversion of water into the bypass canal. Hungary, for
its part, had from the outset given its full agreement to the diversion of
the Danube waters into a bypass canal at Dunakiliti on its own territory.

23. (The lawfulness of the construction and operation of Variant C.)
The Court has found that “Czechoslovakia was entitled to proceed,
in November 1991, to the ‘provisional solution’” (Judgment, para. 155,
point 1 B) under the 1977 Treaty, which provided for a “partnership” for
the construction of a magnificent Project, but “was not entitled to put
into operation, from October 1992, this ‘provisional solution’” (Judg-
ment, para. 155, point 1 C), that is, diverting the waters at Cunovo. The
“provisional solution” was effected in order that Czechoslovakia might
secure its rights and fulfil its obligations under the 1977 Treaty. Its action
implied nothing other than the accomplishment of the original Project.
Czechoslovakia claimed that the construction of the Cunovo dam could
have been justified as a countermeasure taken in response to the wrongful
act of Hungary (that is, the abandonment of the works at Dunakiliti) but
I believe that the construction of the Cunovo dam was no more than the
implementation of an alternative means for Czechoslovakia to carry out
the Project in the context of the JCP.

I would like to repeat that I cannot agree with the Judgment when
it states, as I pointed out in paragraph 1 above, that “Czechoslovakia
was entitled to proceed . . . to the ‘provisional solution’” but it “was not
entitled to put into operation . . . this ‘provisional solution’” (see also
Judgment, para. 79). | wonder if the Court is really of the view that
construction work on a project is permissible if the project ultimately,
however, may never be used? The plan to divert the waters of the
Danube river into the bypass canal where the Gabtikovo power plant
was to be constructed was the essence of the whole Project with which
Hungary was in full agreement.

The Judgment states that the diverting of the Danube waters into the
bypass canal was not proportionate to the injury suffered by Czechoslo-
vakia as a result of Hungary’s wrongful act (Judgment, para. 85). How-
ever, I hold the firm view that since Hungary did nothing to divert the
waters at Dunakiliti, thus failing to execute its Treaty obligations, Czecho-
slovakia inevitably had to proceed with Variant C, that is, the construc-
tion of the Cunovo dam and the diversion of the waters of the Danube at
that point, in execution of the JCP, although this was not explicitly
authorized in the 1977 Treaty. This would have been a good reason to

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revise the JCP in order to implement the 1977 Treaty, although the con-
sent of Hungary to that solution was not obtained. Czechoslovakia had
the right to take that action.

24. (Volume of diverted waters.) \n this respect it should be added that
the construction and operation of the Cunovo dam was simply under-
taken in order to replace the Dunakiliti dam — while control of the Dan-
ube waters, as covered by Chapters V-XI of the 1977 Treaty, is another
matter entirely as I have already stated (see para. 3). The Judg-
ment seems to indicate that Czechoslovakia acted wrongfully by uni-
laterally diverting an undue proportion of the Danube waters into the
bypass canal, but the distribution or sharing of those waters does not fall
squarely within the framework of the construction and operation of Vari-
ant C. (I wonder whether control over the sharing of the water would
have fallen under the exclusive competence of Hungary if the Dunakiliti
dam had been built.)

The Cunovo dam, which replaced the Dunakiliti dam, is said to have
diverted 90 per cent of the available water into the bypass canal on
Czechoslovak territory. This figure for the division of the water might
not reflect the original intention of the parties, each of which wanted to
have an equitable share of the waters, with a reasonable amount of the
water going into the old Danube river bed and a similar reasonable
amount going into the bypass canal. However, the way in which the
waters are actually divided does not result simply from the construction
of a dam at either Dunakiliti or at Cunovo but, the diversion of waters at
Cunovo has. in fact, been operated by Czechoslovakia itself under its
own responsibility.

The matter of the sharing of the waters between the bypass canal and
the old Danube river bed is but one aspect of the operation of the system
and could have been negotiated between the two States in an effort to
carry on applying the JCP. A minimal share of the river waters as cur-
rently discharged into the old Danube river bed might have been contra-
dictory to the original Project, and for this, Czechoslovakia is fully
responsible.

This matter, however, might well have been rectified by some mutually
acceptable arrangement. It may well be possible to control the distribu-
tion of the water at Cunovo by the use of sluice-gates or by a modifica-
tion to the design of the dyke separating the waters in the Cunovo reser-
voir. The control of the water was nor the essence of the Variant C
project and could still be dealt with in a more flexible manner through a
revision or redrafting of the relevant texts of the JCP.

2. Speciul Agreement, Article 2, Paragraph 2

25. The Court is requested under Article 2, paragraph 2, of the Special
Agreement

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166 GABCIKOVO-NAGYMAROS PROJECT (DISS. OP. ODA)

“to determine the legal consequences, including the rights and obli-
gations of the Parties, arising from its Judgment on the questions in
paragraph | of this Article”.

26. (The lawfulness of Variant C.) The construction of Variant C was
not unlawful and Slovakia did not incur any responsibility to Hungary,
except that the way in which the Cunovo dam was controlled by Czecho-
slovakia seems to have led to an unfair division of the waters between the
old Danube river bed and the bypass canal. Slovakia is entitled to repara-
tion in the form of monetary compensation from Hungary for some por-
tion of the cost of the construction work on the Cunovo dam met by
Czechoslovakia alone as a result of Hungary’s failure to execute its
Treaty obligations concerning the completion of the Gabtikovo-
Nagymaros System of Locks. The cost of the construction of the Cunovo
dam and the related works should in part be borne by Hungary but, in
exchange, it should be offered co-ownership of it. On the other hand, if
the operation of the Cunovo dam diverting waters into the old Danube
river bed has caused any tangible damage to Hungary, Slovakia should
bear the responsibility for this mishandling of the division of waters. It
must be noted, however, that, as a result of the planning of this whole
Project (especially the bypass canal), the volume of water flowing into the
old river bed could not be as great as before the Project was put into
operation.

IV. TERMINATION OF THE 1977 TREATY BY HUNGARY
(Special Agreement, Art. 2, para. 1 (c); Art. 2, para. 2)

1. Special Agreement, Article 2, Paragraph 1 (c)

27. The Court is requested under the terms of the Special Agreement
to decide “what are the legal effects of the notification, on 19 May 1992,
of the termination of the Treaty by [Hungary]” (Art. 2, para. | (c)).

28. (Hungary's notification of termination of the 1977 Treaty.) This
question concerns nothing other than the interpretation of the law of
treaties, as the Judgment properly suggests. The termination of the 1977
Treaty is essentially different from an amendment of the JCP. Hungary
claims that, as Variant C was in contradiction of the Plan and thus con-
stituted a wrongful act, the 1977 Treaty could be terminated because of
that alleged violation of the Treaty by Czechoslovakia.

I am in agreement with the Judgment when it states that the termina-
tion of the 1977 Treaty by Hungary does not meet any of the criteria for
the termination of a treaty as set out in the Vienna Convention on the
Law of Treaties, which is considered as having the status of customary
international law. 1 share the view of the Court that the 1977 Treaty has

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167 GABCIKOVO-NAGYMAROS PROJECT (DISS. OP. ODA)

remained in force, as the notification of termination made by Hungary in
1992 could not have any legal effect (Judgment, para. 155, point 1 D).

2. Special Agreement, Article 2, Paragraph 2

29. No legal consequences will result from the Court’s Judgment in
this respect, since the notification of termination of the 1977 Treaty by
Hungary must be seen as having had no legal effect.

V. THE FINAL SETTLEMENT
(Special Agreement, Article 5)

30. Hungary and Slovakia have agreed under Article 5 of the Special
Agreement, that: “Immediately after the transmission of the Judgment
the Parties shall enter into negotiations on the modalities for its execu-
tion.”

31. (Negotiations under Article 5 of the Special Agreement.) As | have
already said, my views differ from those set out in the Judgment in that
I believe that Czechoslovakia was entitled to proceed to the provisional
solution, namely, not only the construction of the Cunovo dam but also
the operation of that dam at Cunovo in November 1992 for diversion of
water into the bypass canal. As I see it, Czechoslovakia did not violate
the 1977 Treaty. It is my opinion that the “negotiations” between Hun-
gary and Slovakia under Article 5 of the Special Agreement should be
based on this understanding and not on the finding stated in the Judg-
ment in its operative paragraph 155, points 1 C and 2D.

32. (The amendment of the Joint Contractual Plan.) The implementa-
tion by Czechoslovakia of Variant C — the construction of the Cunovo
dam and the damming of the waters for diversion into the bypass canal
— was a means of executing the plan for the Gabéikovo-Nagymaros Sys-
tem of Locks which had originally been agreed by the Parties. The imple-
mentation of Variant C will not remain a “provisional” solution but will,
in future, form a part of the JCP.

The mode of operation at the Gab¢éikovo power plant should be
expressly defined in the amended JCP so as to avoid the need for opera-
tion in peak mode, as this has already been voluntarily abandoned by the
Parties and does not need to be considered here.

The way in which the waters are divided at Cunovo should be negoti-
ated in order to maintain the original plan, that is, an equitable share of
the waters — and this should be spelt out in any revision or amendment
of the JCP. The equitable sharing of the water must both meet Hungary’s
concern for the environment in the Szigetk6z region and allow satisfac-
tory operation of the Gabtikovo power plant by Slovakia, as well as the

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168 GABCIKOVO-NAGYMAROS PROJECT (DISS. OP. ODA)

maintenance of the bypass canal for flood prevention and the improve-
ment of navigation facilities. I would suggest that the JCP should be
revised or some new version drafted during the negotiations under
Article 5 of the Special Agreement in order to comply with the moda-
lities which I have set out above.

33. (Reassessment of the environmental effect). Whilst the whole
Project of the Gabéikovo-Nagymaros System of Locks is now in opera-
tion, in its modified form (that is, with the Cunovo dam instead of the
Dunakiliti dam diverting the water to the bypass canal and with the
abandonment of the work on the Nagymaros dam/power plant),
the Parties are under an obligation in their mutual relations, under
Articles 15, 16 and 19 of the 1977 Treaty, and, perhaps in relations
with third parties, under an obligation in general law concerning environ-
mental protection, to preserve the environment in the region of the river
Danube.

The Parties should continue the environmental assessment of the whole
region and search out remedies of a technical nature that could prevent
the environmental damage which might be caused by the new Project.

34. ( Reparation.) The issues on which the Parties should negotiate in
accordance with Article 5 of the Special Agreement are only related to
the details of the reparation to be made by Hungary to Slovakia on
account of its having breached the 1977 Treaty and its failure to execute
the Gabéikovo Project and the Nagymaros Project. The legal conse-
quences of these treaty violations are different in nature, depending on
whether they relate to one or other separate part of the original Project.
Hungary incurred responsibility to Czechoslovakia (later, Slovakia) on
account of its suspension of the Gabéikovo Project and for the work car-
ried out solely by Czechoslovakia to construct the Cunovo dam. In addi-
tion, Czechoslovakia is entitled to claim from Hungary the costs which it
incurred during the construction of the Dunakiliti dam, which subse-
quently became redundant (see paras. 17 and 18 above).

With regard to the abandonment by Hungary of the Nagymaros dam,
Hungary is not, in principle, required to pay any reparation to Slovakia
as its action did not affect any essential interest of Slovakia (see para. 19
above). There is one point which should not be overlooked, that is, as the
Nagymaros dam and power plant are, as Slovakia admits, no longer a
part of the whole Project, the construction of the bypass canal from
Cunovo would be mostly for the benefit of Slovakia and would provide
no benefit to Hungary.

The main benefits of the whole Project now accrue to Slovakia, with
the exception of the flood prevention measures and the improved facili-
ties for international navigation, which are enjoyed by both States. This
should be taken into account when assessing the reparation to be paid as
a whole by Hungary to Slovakia.

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169 GABCIKOVO-NAGYMAROS PROJECT (DISS. OP. ODA)

In view of the statements I have made above, it is my firm belief that
the modalities of the reparation to be paid by Hungary to Slovakia
should be determined during the course of the negotiations to be held
between the two States.

(Signed) Shigeru Opa.

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400

SEPARATE OPINION OF JUDGE PARRA-ARANGUREN

1. Notwithstanding my agreement with the operative part of the Order,
I consider it necessary to make the following observations.

2. Article IX of the Genocide Convention is in force between the
Parties. It prescribes:

“Disputes between the Contracting Parties relating to the interpre-
tation, application or fulfilment of the present Convention, including
those relating to the responsibility of a State for genocide or for any
of the other acts enumerated in article II, shall be submitted to the
International Court of Justice at the request of any of the parties to
the dispute.”

3. Yugoslavia maintains that the Respondent has violated:

“the obligation contained in the Convention on the Prevention and
Punishment of the Crime of Genocide not to impose deliberately on
a national group conditions of life calculated to bring about the
physical destruction of the group .. .” (Application of Yugoslavia,

p. 12).

Furthermore, during the public hearings Yugoslavia stated “in the cir-
cumstances the intensive bombing of Yugoslav populated areas consti-
tutes a breach of Article II of the Genocide Convention” (CR 99/25,
p. 12, Brownlie).

4. The Respondent considers that it has not violated the Genocide
Convention, because no genocide crimes have been committed during or
as a result of the military intervention of the NATO countries in Yugo-
slavia.

5. In its Judgment of 11 July 1996 the Court admitted prima facie the
existence of a legal dispute between the Parties because of the existence
of:

“‘a situation in which the two sides hold clearly opposite views
concerning the question of the performance or non-performance
of certain treaty obligations’ (U/nterpretation of Peace Treaties
with Bulgaria, Hungary and Romania, First Phase, Advisory Opin-
ion, . C.J. Reports 1950, p. 74)

and that, by reason of the rejection by Yugoslavia of the complaints
formulated against it by Bosnia and Herzegovina, ‘there is a legal
dispute’ between them (East Timor (Portugal v. Australia), LCJ.
Reports 1995, p. 100, para. 22)” (Application of the Convention on

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401 LEGALITY OF USE OF FORCE (SEP. OP. PARRA-ARANGUREN)

the Prevention and Punishment of the Crime of Genocide, Prelimi-
nary Objections, L C.J. Reports 1996 (IT), pp. 614-615, para. 29).

6. Consequently, taking into account the allegations of the Parties in
these incidental proceedings, there appears to exist, prima facie, a “legal
dispute” between them regarding the interpretation and application of
the Genocide Convention. For this reason, Article IX of the Genocide
Convention is applicable and, in my opinion, the Court has prima facie
jurisdiction to entertain the request for provisional measures presented
by Yugoslavia.

7. Article IX of the Genocide Convention is the only prima facie basis
for jurisdiction of the Court in the present case. Therefore the only pro-
visional measures that it can indicate are those aiming to guarantee the
rights of the Applicant under the Genocide Convention.

8. Yugoslavia is requesting the Court to indicate that the Respondent
“shall cease immediately the acts of use of force and shall refrain from
any act of threat or use of force against the Federal Republic of Yugo-
slavia” (CR 99/14, p. 63, Etinski). However, the threat or use of force
against a State cannot in itself constitute an act of genocide within the
meaning of the Genocide Convention. Consequently the provisional
measures requested by Yugoslavia do not aim to guarantee its rights
under the Genocide Convention, i.e., the right not to suffer acts which
may be qualified as genocide crimes by the Convention. Therefore, in my
opinion, the measures requested by Yugoslavia shall not be indicated.

(Signed) Gonzalo PARRA-ARANGUREN.

42