Case Analysis: Cat on a Hot Tin Roof: The World Court, State Succession, and the Gabčíkovo-Nagymaros Case

Leiden Journal of International Law

Volumn 11, Issue 2, 1998, Pages 345-355

  Klabbers, Jan ^a  

^a UNIVERSITY OF HELSINKI   (Finland)

Author keywords

Gab kovo Nagymaros case; International Court of Justice; law of treaties; state succession

Indexed keywords

EID: 84890975111     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156598000259     Document Type: Article

References (40)

1. 1977 Treaty Between the Hungarian People's Republic and the Czechoslovak Socialist Republic Concerning the Construction and Operation of the GabCikovo-Nagymaros System of Locks, signed in Budapest, 16 September 1977 (1977 Treaty), reproduced in 32 ILM 1247 (1993)
2. Cl’., e.g., O. Vcihooscl, Gabiikovo-Nagymaroa; The Evidentiary Regime on Environmental Degradation and the World Court, 6 European Environmental Law Review 247 (1997). But see M. Fitzmauriee, Environmental Protection and the International Court of Justice, in A.V. Lowe & M. Fitzmauriee (Eds,), Fifty Years of the International Court of Justicc; Essays in Honour of Sii Rubcit Jennings 293, cspccially at 311 and 313 (1996).
3. Application of tlie Convention on tlie Prevention and Punisliment of the Crime of Genocide (Uosnia-Herzegovina v. Yugoslavia (Servia and Montenegro).
4. See GabCiliovo-Nagymaros Project, Application of tlie Convention on tlie Prevention and Punisliment of the Crime of Genocide note 3, para. 2.
5. Id., para. 124.
6. See note 4, Id.
7. Note that four of the five points made by the Court in its dispositivum in answering the question asked in Art. 2, para. 2, of the 1993 Special Agreement Between the Republic of Hungary and the Slovak Republic for Submission to the International Court of Justice of the Differences Between ‘fhem Concerning the GahCi'kovo-Nagymaro.s Project, reproduced in 32 ILM 1293 (1993), presuppose that the 1977 Treaty continues to be in force; the fifth determines precisely that. See GabCikovo-Nagymaros Project, note 4 note 3, para,155.
8. It is telling, perhaps, that Judge Fleischhauer's attempt to find that Slovakia materially breached the 1977 Treaty comes at the expense of virtually ignoring the concept of material breach as laid down in Art. 60 of the 1969 Vienna Convention on the Law of Treaties, 8 ILM 679 (1969): to hold that a material breach invites a proportionate response Is to do away wilh the distincliuri between material and ordinary breach altogether.
9. 1978 Vienna Convention on Succession of States in Respect of Treaties, reproduced in 11 ILM 1488 (1978).
10. Beemelmans refers to this as the “wait and see” approach. See H. Beemelmans, Siaie Succession in International Law: Remarks on Recent Theory and State Praxis, 15 Boston University International Law Journal 71, especially at 96 (1997). It is worth noting, however, that such an approach will have a more useful application with treaties which only require incidental action (e.g., extradition treaties) than with treaties which require continuous action.
11. See GabCi'kovo-Nagymaros Project, Beemelmans refers to this as the “wait and see” approach. note 3, para. 117.
12. This third argument is not spelled out in great detail in Hungary's Memorial; I derived it from the Coun's rendition, para. 118.
13. Art. 34 of the 1978 Vienna Convention on Succession of States in Respect of Treaties, This third argument is not spelled out in great detail in Hungary's Memorial; note 10, reads in relevant part: “1. [w]hen a part or parts of the territory of a State separate to form one or more. States, whether or not the predecessor State continues to exist: (a) any treaty in force at the date ofihe succession of Slates In respect of the cnltrE terrilory of the predecessor State continues in forcc in respect of each successor State so formed; (h) any treaty in force at the date of the succession of States in respect only of that part of the territory of the predecessor State which has become a successor State continues in force in respect of that successor State alone. 2. Paragraph l does not apply if: (a) the States concerned olhcrwise agree”.
14. C., e.g-, sceptical, S. Rosenne, Automatic Treaty Succession, m J, Klabbers & R. Lefeber (Eds.), Essays on the Law of Treaties: A Collection of Essays in Honour of Bert Vierdag 97 (1998). A more optimistic appraisal is M.T. Kamminga, State Succession in Respect of Human Rights Treaties, 1 hJIL 4(iy (1996).
15. Cf. 1974 YtLC, Vol. II (Part One), at 260.
16. Id, at 70.
17. Id, at 71.
18. See GabCikovo-Nagyraaros i'roject, Id note i, para. 123.
19. See, e.g. Judge Weeraraantry's Separate Opinion to the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzcgovina v. Yugoslavia (Serbia and Montenegro)), Preliminary Objections, Judgment of 11 July 1996, 1996 ICJ Rep. (not yet published). The full text can be found at:mtp://www.law.cornell,edu/ic|/icJ4/Judgment.htm.
20. Id, at 3.
21. See, generally, J. Klabbers, Some Problems Regarding the Object and Purpose of Treaties, 8 Finnish Yearbook of International Law (1997) (forthcoming).
22. “[w]ithout prejudice as to whether or not the principle of ‘automatic succession’ applies in the case of certain type of international treaties or conventions, the (Jourt does not consider it necessary, in order to decide on its jurisdiction in this case, to make a detemiination on the legal issues concerning State succession in respect to treaties which have been raised by the Parties.” See Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Some Problems Regarding the Object and Purpose of Treaties note 20, para. 23.
23. See Memorial of tlie Republic of Hungary, especially at 326.
24. Id, at 326, Note that with other states as well, Slovakia entered into negotiations concerning bilateral agreements. See, e.g., O. Hafner & E. Komfeind, The Recent Austrian Practice of State Succession: Does the Clean Slate Rule Still Exist?, 1 Austrian Review of International and European Law 1, especially at 23-24 (1996). But see A. Bos, Statenopvolging in hct bijzonder met betrekking tot verdragen, in A. Bos, O.M. Ribbelink & L.H.W. van Sandick, Statenop-volging, Preadvies NVIR 47 (1995), remarking that between the Netherlands and Slovakia, an exchange of letters concluded in 1994 merely confirmed the automatic succession as envisaged in Art. 34 of the 1978 Vienna Convention.
25. GabCikovo-Nagymaros Project, Id note 3, para. 118.
26. Id., para. 120
27. special Agreement, Id. note 8.
28. A similar argument was of some importanee in tegal Status of Eastern Greenland (Norway v. Denmark), Judgment, PCIJ Ser. A/B, No. 53 (1933).
29. See GabCikovo-Nagymaros Project, A similar argument was of some importanee in tegal Status of Eastern Greenland note 3, para. 123.
30. Id.
31. Id. Ilie full passage runs: “the content of the 1977 Treaty indicates that it must be regarded as establishing a territorial regime within the meaning of Article 12 of the 1978 Vienna Convention. It created rights and obligations ‘attacliing to’ the parts of tiie Danube to which it relaies; thus the Treaty itself cannot be affccted by a succession of States. The Court therefore concludes that the 1977 Treaty became binding upon Slovakia on ! January 1993.” (emphasis added)
32. Or threefold, if you count the Court's finding that Art. 12 represents customary international law. ‘fhe basis for this finding is merely that neither of the parties disputes it. See Gabiikovo-Nagymaros Project, Id. note 3, para, 123.
33. Para, 1 of Art. 12 speaks of territory for the benefit of any territory of a foreign state; para. 2 speaks of territory tor the benefit of a group ol’ states or of all states. In both cases, the rights and obligations concerned must be considered as ‘attaching to the territories in question.’
34. GabCikovo-Nagymaros Project, Para, 1 of Art. note 3, para. 123. The Court quotes the ILC's commentary, Para, 1 of Art. note 15, at 203, para. 26.
35. Hungary never anticipated the argument: its memorial is silent on Art. 12. It briclly discusses Art. 11 of the 1978 Convention, GabCikovo-Nagymaros Project note 10, which deals with boundary treaties and is generally accepted as reflecting customary international law. See Case concerning the GabCSikovo-Nagymaros Project (Hungary/Slovakia), Memorial of the Republic of flungary, Vol. 1, at 323 (1994).
36. See Gabiikovo'Nagymaros Project, Hungary never anticipated the argument: its memorial is silent on Art. note 3, para. 123. I have omitted the not very specific reference to 11 pages of the ILC's report which the Court invokes in support.
37. See the passage quoted Gabiikovo'Nagymaros Project note 32.
38. These only feature in the concluding pan, where the legal consequences of the dispute are discussed. The chapter on state succession does not discuss the issue.
39. On rebus sic stantibus, see, e.g., A. Vamvoukos, Termination of Treaties in International Law: The Doctrines of Rebus Sic Stantibus and Desuetude (1985). But see the recent decision by the Court of Justice of the EC, Case C-162/96, Raeke v. Hauptzollamt Mainz, Judgment of 16 June 1998 (not yet published). As for material breach, cf. J, Klabbers, Side-stepping Article 60: Material Breach of Treaty and Responses Thereto, in M. Tupamakt (Ed.), Finnish Branch of International Law Association, 1946-1996: Essays on International Law 20-42 (1998).
40. It has been noted that “tlie very flexibility of State succession makes It possible to manage sometimes dangerous political conflicts in an innovative way.” The Gabcikovo case is an intriguing illustration indeed. Cf. M. Koskennietni, The Present State of Research, in P.M. Eise-mann & M. Koskennietni, La succession d'tats: la codification 1'iSpreuve des faits 89, at 93 (1997).