|The International Court of Justice was established in 1945 by the Charter of the United Nations and is the principal judicial organ of the UN – although this status does not give it priority as a forum of dispute524 settlement and the Court’s jurisdiction is based on the consent of all parties to each dispute. The Court’s general mandate is to settle, in accordance with international law, legal disputes submitted to it by states (contentious disputes) and to give advisory opinions on legal questions referred to it by authorised United Nations organs and specialised agencies (advisory proceedings).525 Proceedings may be instituted either through the notification of a special agreement or by means of application.526
The ICJ or its predecessor the Permanent Court of International Justice (PCIJ) have heard numerous freshwater related disputes, including: River Oder case (1929)527; River Meuse case (1937)528; Gabcíkovo- Nagymaros Project (Hungary v. Slovakia)(1997)529 ; Kasilili/Sedudu Island (boundary river) case, Botswana/ Namibia (1999); River Niger boundary dispute Benin/ Niger (2005); Case concerning Navigation and Related Rights Costa Rica v. Nicaragua (2009; Pulp Mills on the River Uruguay Argentina v. Uruguay (2010); and Certain Activities carried out by Nicaragua in the Border Area, Costa Rica v. Nicaragua (case pending). These cases going back to 1947 can be accessed from the ICJ Website.530 The salient cases which involve several of the legal and diplomatic dispute resolution techniques are summarised in the text boxes below – the Gabcíkovo-Nagymaros Project (Hungary v. Slovakia) is a particularly interesting case for its long and varied negotiation and dispute resolution experience, both prior and immediately after the 1977 Treaty, and before and after the ICJ judgment. However, although interesting for our purposes of examination, this case remains unresolved. The Pulp Mills case is also briefly examined with a focus on process – for further analysis of the legal merits of the case see Part III and Part IV of the Online User’s Guide.
Most importantly for the procedural purposes of this Guide, Article 33(10)(b) of the UN Watercourses Convention provides for the submission of a dispute to the ICJ with the agreement of all states concerned. At the time of becoming a contracting party to the Convention or at any time after, a state party may declare in a written instrument submitted to the depositary that, in respect of any dispute not resolved in accordance with Article 33(2) and where both parties to a dispute have declared their willingness – either party can unilaterally submit their dispute to the ICJ. The judgment is final, binding on the parties to a case, and without appeal.531 A selection of the reasons why a party may choose to submit an instrument declaring willingness to have any dispute resolved by compulsory third party adjudication are: the certainty of a neutral, orderly and principled dispute settlement procedure; and the increased certainty that the dispute will be resolved. Since the decision to submit to adjudication is consensual; the rate of compliance with decisions is high.532 The disadvantages of utilising the ICJ include the significant cost; time constraints; less privacy; and a lack of control over the process.533
1997 Case Concerning the Gabcíkovo-Nagymaros Project (Hungary v. Slovakia)
Facts and focus on dispute resolution process
After 25 years of negotiation, in 1977 Hungary and Czechoslovakia (now Slovakia) concluded a Treaty on the joint utilisation of the Danube River including the construction of a joint barrage system – one dam in Czechoslovakia and one dam in Hungary. In 1989 Hungary suspended work on the dam at Nagymaros due to alleged environmental concerns in order to investigate and in response Czechoslovakia proposed a solution which would enable them to continue unilaterally with the first dam ‘Variant C’. New negotiations began between the countries but subsequently failed. In 1992, in response, Hungary unilaterally terminated the Treaty. Czechoslovakia then diverted 90% of the water from the Danube into an artificial canal in order to pursue Variant C. In 1992 Hungary initiated a case before the International Court of Justice – this failed because Czechoslovakia had not given express consent so the Court had no jurisdiction. The Commission of the European Communities offered to mediate and establish a fact-finding commission to investigate Variant C and create a Group of Experts, including an expert designated by each party and three by the Commission of EuropeanCommunities. The Group was to report on emergency measures, establish a temporary water management regime for the Danube and agree on terms of submission to the ICJ. The working group produced recommended measures and on this basis the parties in 1993, concluded an agreement ‘Concerning Certain Temporary Technical Measures and Discharges in the Danube and Monsoni Branch of the Danube’ which addressed the issues above and also included agreed process for joint submission to the ICJ by Special Agreement. In 1993 Czechoslovakia split into the Czech Republic and Slovakia. The parties submitted the dispute to the ICJ by Special Agreement asking three questions related to interpretation and implementation of the 1977 Treaty and general principles of international law.
Q1. Was Hungary entitled to abandon works on the project?
Q2. Was Slovakia entitled to proceed with Variant C?
Q3. What were the legal effects of Hungary’s notification and termination of the 1977 Treaty?
The ICJ responded to the three questions:
A1 | Hungary acted unlawfully when it suspended works on Nagymaros. Hungary relied on the ‘state of ecological necessity’ and ‘ecological risk’ to justify this act and the ICJ found that Hungary’s concerns were ‘an essential interest of the State’ but the potential environmental problems did not constitute a ‘grave and imminent peril’ which threatened the State’s interests. The Court held that the acts of Hungary were not justified by the exception of necessity relying on Article 25 of the 2001 Draft Articles on International Responsibility of States.
A2 | Slovakia was entitled to proceed with building Variant C but acted unlawfully when it began operating the system and diverting the flow of the Danube. The ICJ based it reasoning on the law of state responsibility which requires a countermeasure to be proportional to the unlawful act and the Court found that Hungary was deprived of its right to an equitable and reasonable share of the watercourse. The Court also referred to the ‘Community of Interest’ from the River Oder case which also applied to non-navigational uses and cited the 1997 UN Watercourses Convention – especially Article 5- in support.
A3 | Hungary was not legally entitled to terminate the 1977 Treaty. Both parties were found to have acted unlawfully, and the parties were legally obligated to enter into negotiations to implement the purpose and obligations of the 1977 treaty given the existing circumstances, which include the operation of Variant C. The ICJ also provided the option to bring the dispute back to Court if necessary.
Summary of dispute settlement procedure post 1997 ICJ Judgement
More than 13 years after the ICJ decision, the parties have been unable to reach a settlement. The parties started their negotiations regarding implementation of the ICJ Judgment in 1997, and several milestones have been achieved including: a 2001 ‘Draft Agreement on implementation of the Judgment’, several joint Working Groups on legal matters, economic matters and water management and a Strategic Environmental Assessment of the Bratislava-Budapest section of the Danube, but the parties are still unable to agree and proceedings are still pending in the ICJ. It is suggested that parties are very close to realising that they may need to ask for third party assistance which could include returning to the ICJ to request an additional judgment as provided for in the Special Agreement. However this will be complicated because Slovakia has already requested an additional judgement in 1998, although that procedure was suspended.
Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay)
Facts and Process
Uruguay wanted to build two cellulose pulp mills located on the banks of the River Uruguay (the boundary river between Argentina and Uruguay). The River Uruguay is governed by the 1975 River Uruguay Statute between Argentina and Uruguay which sets down rules for the protection of the river, procedural requirements for notification of projects and the establishment of a joint commission (CARU). In 2002 the Spanish company ENCE informed CARU of its intention to build a pulp mill - this project was abandoned in 2006 because of large public opposition within Argentina, and investor uncertainty. In 2004 the Finnish company Botnia informed CARU of its intention to build a cellulose pulp mill on the river bank, on Uruguayan territory – this became operational in 2007.
In 2006 Argentina initiated proceedings before the ICJ pursuant to Article 60(1) of the 1975 Statute of the River Uruguay which provides: ‘Any dispute concerning interpretation or application of the 1961 (Montevideo) Treaty and the 1975 Statute which cannot be settled by direct negotiations may be submitted by either party to the ICJ’ (For details of the proceedings and jurisdiction see paras 1-24 and 48-66 of the Judgment).
The dispute centred on whether Uruguay complied with its procedural obligations under the 1975 Statute in authorising construction of the ENCE mill and the construction and commission of the Botnia mill and whether Uruguay had complied with its substantive environmental obligations under the Statute since the Botnia mill began operation in 2007. Argentina claimed Uruguay had breached the procedural provisions relating to notification, conduct of an environmental impact assessment, and information disclosure under Articles 7-12 of the 1975 River Uruguay Statute and substantive obligations related to optimum and rational utilisation, State’s right to use, management of soil and woodlands so as not to impair, coordinating measures to avoid ecological changes, protecting and preserving the environment and preventing pollution (Articles 1, 27, 35, 36, 40 and 41).
In 2006 Argentina also requested injunctive relief from the ICJ by making an application for provisional measures to suspend construction of the Pulp Mills – which was rejected by the ICJ because Argentina failed to demonstrate that the construction would cause imminent harm to the river sufficient to meet the test of urgency under Article 41 of the ICJ Statute justifying provisional measures.
Essentially the ICJ had to address whether the River Uruguay would be adversely affected by the discharges from the Botnia plant taking into account the variability in seasonal flow. There was an unprecedented quantity of scientific and technical evidence put before the Court which had an impact upon the process of the hearing and discussion around the possibility of the Court retaining its own scientific expertise (Phillipe Sands Co-Agent for Argentina).
The ICJ delivered the verdict in April 2010, finding that Uruguay had breached its procedural obligations (paras 67- 158), but that it did not breach the substantive obligations. Uruguay was thus not barred from proceeding operating the Botnia mill and Argentina was not entitled to any compensation (paras 169-266). The Court finally stressed the State’s obligation to cooperate (ongoing monitoring) (para 281).
Significant observations are the court’s linking of notification of new projects to the customary due diligence obligation to prevent significant transboundary harm. Also an Environmental Impact Assessment (EIA) was found to be an essential requirement of customary international law in respect to activities having potential transboundary effects. Finally the principle of equitable and reasonable utilisation was found to be synonymous with sustainable development and should be considered as a process.
For analysis of the judgement and the broader contribution of the case to international law see P Sands ‘Water and International Law: Science and Evidence in International Litigation’ (2010) 22 Environmental Law & Management 151; O McIntyre ‘The Proceduralisation and Growing Maturity of International Water Law’ (2010) 22 Journal of Environmental Law 475.
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