GENERAL INTERNATIONAL LAW

CASE BRIEF
HUNGARY V. SLOVAKIA
JUDGMENT OF 25 SEPTEMBER 1997

NAME: FABIÁN HERNÁNDEZ VIVAS.

ID: 0000110170.

I. RELEVANT INFORMATION

a. NATURE OF THE CASE: Contentious

b. REFERENCE: Case concerning Gabcíkovo–Nagymaros Project
(Hungary / Slovakia).
c. INSTITUTION: International Court of Justice.
d. DATE: 25 September 1997.
e. KEY WORDS: Responsibility, Slovakia, customary international law,
Hungary, essential interest.

II. FACTS

1. On 16 September 1977, the Hungarian People's Republic and the Czechoslovak People's
Republic signed a Treaty "concerning the construction and operation of the Gabcíkovo-
Nagyrnaros lock system".

2. The 1977 Treaty entered into force on 30 June 1978 and had as its purpose “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"

3. On 13 May 1989, Hungary decided to suspend work on Nagymaros until several studies
were carried out to determine the environmental impact of the project. On 21 July 1989,
Hungary extended the suspension of work on Nagymaros until 31 October 1989. On 27
October 1989, Hungary decided to abandon the works at Nagymaros.

4. On 23 July 1991, Slovakia decided to start construction of variant C of the Gabcíkovo

Project on the grounds that it was a "provisional solution".

5. Hungary transmitted to Czechoslovakia a Note Verbale terminating the 1977 Treaty with
effect from 25 May 1992.

6. On 23 October 1992, Czechoslovakia proceeded to the damming of the Danube river.

 7. On 1 January 1993, Czechoslovakia ceased to exist as a single State and was divided into
the Czech Republic and the Slovak Republic.

III. LEGAL ISSUES

a. Could Hungary suspend and subsequently abandon the construction of the Gabcíkovo-
Nagymaros project, agreed in the 1977 Treaty, because of an alleged state of necessity?

Could Slovakia begin the construction of the Gabcíkovo-Nagymaros project, agreed in the
1977 Treaty, without Hungary's participation in fulfilling the objectives and purposes of the
treaty?

b. Did the 1977 Treaty cease to be in force on 31 December 1992 considering that
Czechoslovakia ceased to exist on 1 January 1993 to be divided into the Czech Republic
and the Slovak Republic?

IV. RULE OF LAW

a. The Court applied the rules established by customary international law to determine that
necessity is an exceptional measure for exonerating a State in breach of a treaty from
responsibility, provided that an "essential interest" threatened by a "grave and imminent
peril" is protected and necessity cannot be claimed if the same State caused it.

b. The Court was of the view that in the event that a State party to a treaty ceased to exist
and the treaty had a territorial character, the treaty could not be affected by the succession
of a State, in accordance with article 12 of the 1978 Vienna Convention on Succession of
States in respect of Treaties.

V. HOLDING AND REASONING

a. On the one hand, the Court found that Slovakia also breached the 1977 Treaty and
committed an internationally wrongful act. Slovakia initiated the construction of Variant C in
order to fulfil the purposes and objectives agreed in the 1977 Treaty and to demonstrate its
good faith in fulfilling its obligations. However, the 1977 Treaty is clear in saying that the
construction of variant C is an indivisible obligation between Hungary and Czechoslovakia,
therefore Slovakia did not have to start construction without Hungary.
On the other hand, the Court found that, according to article 33 of the Draft Articles on
International Responsibility of States, prepared by the International Law Commission,
customary international law has established that a state of necessity is only acceptable for
breaching an international obligation when the State pursues to protect an "essential
interest" threatened by a "grave and imminent peril" and that State must not have
"contributed to the occurrence of the state of necessity".
The Court found that Hungary failed to demonstrate that the essential interest it sought to
protect was being threatened by imminent peril, so the Court found no reason for Hungary
to suspend and abandon its obligations under the 1977 Treaty. Even if Hungary had
demonstrated a state of necessity, that is not an enough ground for suspending and
abandoning the 1977 Treaty, a state of necessity only exonerates the responsibility of a
State for breaching an international obligation.
 The Court recalled that under articles 60 to 62 of the Vienna Convention on the Law of
Treaties of 1969, the grounds for suspending and abandoning a treaty are the same, the
difference is in the object and purpose of the treaty. In other words, if the objective of the
treaty is impossible to achieve, the treaty may be abandoned; if the purpose of the treaty
can only be partially achieved, the treaty may be suspended.
b. On 1 January 1993 Czechoslovakia ceased to exist as a single State and was divided into
the Czech Republic and the Slovak Republic. Based on that fact, Hungary argued that the
1977 Treaty ceased to be in force on 31 December 1992 because one of the parties to the
treaty no longer existed. In this regard, the Court found that, according to article 12 of the
Vienna Convention of 1978 on Succession of States in respect of Treaties, treaties of a
territorial character are not affected by a succession of States; in other words, the 1977
Treaty created rights and obligations relating to a territory, specifically the Danube River.
The Court therefore determined that the 1977 Treaty was binding on Slovakia as from 1
January 1993.
Having determined that the 1977 Treaty is still in force, the Court took into account article
26 of the 1969 Vienna Convention on the Law of Treaties 1 to establish that Hungary and
Slovakia, in accordance with the principle pacta sunt servanda, are still bound to fulfil the
object and purpose of the 1977 Treaty and must fulfil the object in the most appropriate
manner, in accordance with the principle of good faith.
VI. DECISION

1. Having regard to Article 2, paragraph 1, of the Special Agreement:

A. Finds, by fourteen votes to one, that Hungary was not entitled to suspend and
subsequently abandon, in 1989, the works on the Nagymaros Project and on the part
of the Gabcikovo Project for which the Treaty of 16 September 1977 and related
instruments attributed responsibility to it.

C. Finds, by ten votes to five, that Czechoslovakia was not entitled to put into operation.
from October 1992, this "provisional solution"

D. Finds, by eleven votes to four, that the notification, on 19 May 1992, of the
termination of the Treaty of 16 September 1977 and related instruments by Hungary
did not have the legal effect of terminating them.

2. Having regard to Article 2. paragraph 2, and Article 5 of the Special Agreement:

A. Finds, by twelve votes to three, that Slovakia, as successor to Czechoslovakia,

became a party to the Treaty of 16 September 1977 as from 1 January 1993.

B. Finds, by thirteen votes to two, that Hungary and Slovakia must negotiate in good
faith in the light of the prevailing situation, and inust take all necessary measures to
ensure the achievement of the objectives of the Treaty of 16 September 1977, in
accordance with such modalities as they may agree upon.

1
“Every treaty in force is binding upon the parties to it and must be performed by them in good faith”