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48 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 492.5.3 Gabcikovo-Nagymaros Case, Hungary v. SlovakiaHungary and Czechoslovakia concluded a treaty in 1977concerning the construction and operation of a project designedto develop, share and allocate benefits from the Danube River.This project was to be carried out by joint investment and onthe basis of a mutual management plan. The system wasdesigned to attain the broad utilisation of the natural resourcesof the Bratislava-Budapest section of the Danube River for thedevelopment of water resources, energy, transport, agricultureand other sectors of the national economy of the contractingparties. 79 The plan was aimed at the production ofhydroelectricity, the improvement of navigation on the relevantsection of the Danube and the protection of areas along thebanks against flooding. While the treaty arrangement was beingconsidered for implementation, the environmental effect of theproject was heavily criticised. The Hungarian Government, as aresult of severe pressure from its civil society, was compelledto postpone the project at first, and later (1991) terminated thetreaty unilaterally because negotiations with Czechoslovakiadid not yield any positive result. In the mean time, Slovakia (asuccessor state from Czechoslovakia) decided to begin theconstruction and then to put the project into operation by aprovisional solution. Both nations failed to resolve the disputes.Subsequently, as a result of the European Union’s effort, theyagreed to submit the case to the ICJ for adjudication. 80The Court dealt with several issues, i.e., suspension andabandonment of the project by Hungary, issues ofenvironmental consideration, state of necessity, theimpossibility of performance of the Treaty, the occurrence of afundamental change of circumstances, the material breach ofthe treaty and development of new norms of internationalenvironmental law. Refusing all the above-mentioned79 Preamble of the Treaty Concerning the Gabcikovo-Nagymaros Project1977 at 1109 UNTS, p. 211.80 Para 15-25 of the ICJ's judgement 37 ILM (1998), pp. 162-202.arguments, the Court reached the conclusion that Hungary wasnot entitled to cancel the project. 81 The Court dismissed theabove-mentioned Hungarian submission and held the view thatto suspend and subsequently abandon the project was notlegally justifiable. Instead of doing so, Hungary would have totake the opportunity to have recourse to the dispute settlementmechanism contained in the treaty. The court further held theview that:"the 1977 treaty was not only a joint investmentproject for the production of energy, but it was alsodesigned to serve other objectives as well: theimprovement of navigability of Danube, flood controland regulation of ice-discharge, and protection of thenatural environment. None of these objectives hasbeen given absolute priority over the other, in spite ofthe emphasis, which is given in the treaty to theconstruction of a system of locks for the protection ofenergy. None of them has lost its importance. In orderto achieve these objectives the parties acceptedobligations of conduct, obligations of performanceand obligations of result". 82 “The treaty could not berepudiated unilaterally: Article 26 of the ViennaConvention of 1969 on the Law of Treaties, combinestwo elements, which are of equal importance. Itprovides that every treaty in force is binding upon theparties to it and must be performed by them in goodfaith. The principle of good faith obliges the parties toapply it in a reasonable way and in such a manner thatits purpose can be realized." 83Thus, the judgement obviously indicated that the way ofconfrontation instead of co-operation does not help to share anddevelop a project in a shared resource. Regarding the unilateraluse of the Danube by Slovakia, the Court held the view:81 Ibid. Para 59, p. 187 and pp. 191-197.82 Ibid. Para 135, p. 200.83 Ibid. Para 142, p. 201.
50 / International Watercourses Law and Its Application in South Asia Development and Codification of International Watercourses Law / 51“it is not only a shared international watercourse butalso an international boundary river, from whichpresently Hungary is deprived of its benefits andSlovakia is using between 80 and 90 percent of thewaters of the Danube before returning them to themain bed of the river, despite the fact the Danube isnot only a shared international watercourse but alsoan international boundary river.” 84The way, in which Hungary is deprived from these benefits bySlovakia putting the ‘Variant C’ (a provisional solution adoptedby Slovakia) into operation, is incompatible with the treatyprovisions. As a result, both states’ actions are illegal, and bothstates are obligated to pay compensation to the other for theinjury incurred by each action to the other and both of them arerequired to negotiate and execute the provisions of the 1977treaty in a good faith, reasonable and equitable manner. 85In summary, the judgement provided that the reasonable andequitable utilisation of an IWC is the basic requirement. Thenotion of equity, which bridges the gap between the divergentinterests, is the major rule of shared water resources and thedispute in question should be dealt with accordingly. Treatyarrangements should be implemented in good faith with theobjectives set forth in it. In doing so, there are several rightscorresponding to a duty to inform and negotiate about theproposed project, follow to the concept of ‘no harm’ and‘equitable utilisation’, and always maintain goodneighbourliness, and a cooperative attitude. Apart from this,consideration of the watercourse as a single unit and thegenuine interest of attainment to maximize benefits from such aproject for the mutual benefit of all riparian states are alsonecessary conditions.84 Ibid. Para 78, p 190.85 Ibid. pp. 198- 202.To conclude this section, states have rights in an IWC. At thesame time they are obligated to use their right with restraint,that is to say, to cause harm or injury is not permitted. Thestates in an IWC are required to consult, negotiate and cooperatewith each other and work in a co-ordinated manner byaddressing each other’s interest and maximising the benefits.Furthermore, the Gavcikovo-Nagymaraos judgement providesinsight into the significance of such co-operation. There havebeen varying state practices in this area. In the Nile basin, forexample, both treaties of 1929 and 1959 safeguarded the prioror historical or vested right of Egypt over the Nile’s water,which in essence advocated the ‘no harm rule’, against theconcept of equitable utilisation. In other treaty regimes, like thetreaty between Canada and USA, Mexico and USA, and severalothers have maintained the cardinal rule of IWC as ‘equitableutilisation’. However, from the evaluation of each practiceenvisaged in those treaties, the majority of such regimes haveemphasised the concept of reasonable and equitable utilisation,no harm to the other state and duty to cooperate and negotiate.2.6 Scholarly ContributionsAccording to article 38 (1) (d) of the statute of the Statute ofICJ,“subject to the provisions of article 59, judicialdecisions and the teachings of the most highlyqualified publicists are regarded as subsidiarymeans for the determination of rules of law.” 86The contributions of the ILI, ILA, Inter-American BarAssociation (IBA) etc, are naturally the contributions ofnumerous scholars which is dealt with later. It is not possible toevaluate every individual’s contribution here. However,eminent scholars such as Oppenheim, Lauterpacht, Smith,Berber, Andrassy, Goldsmid, Black, (then president of the86 Supra note 54, p. 1075.
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Page 4 and 5: PrefaceIn this book, the author has
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Page 10 and 11: GlossaryMap of the Ganges BasinThe
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