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분야
docⅠ. Introduction
Ⅱ. Facts
1. 1977’ contraction
2. Abandoned contract from Hungary
3. Solve this problem by Czechoslovakia’s lone as Variant C.
4. Notification about termination of 1977 contract by Hungary
5. Separation of Czechoslovakia
6. Question to ICJ
Ⅲ. Law of Treaties
1. Applicability of Vienna Convention of the Law of Treaties
2. Principle of Approximate Application
3. Termination of Treaties
(1) State of Necessity
(2) Impossibility of Performance
(3) Fundamental Change
(4) Material Breach
4. Pacta sunt servanda
Ⅳ. Environmental Consideration
1. Environmental Situation
(1) Slovakia
(2) Hungary
(3) ICJ
(4) Change in environmental condition
2. Sustainable Development
(1) Sustainable development as a Principle of International Law
(2) The need for international law in harmonizing development and environmental protection
(3) Traditional principles
3. Environmental Impact Assessment
Ⅴ. Conclusion
1. Applicability of Vienna Convention of the Law of Treaties
The first issue they argued about was whether Vienna Convention of the Law of Treaties(hereinafter VCLT) was applied to 1977 treaty. Hungary insisted VCLT was not applicable because both parties ratified it later than 1977. Corresponding to Hungary’s argument, Slovakia said that VCLT reflected a customary law in particular provisions about termination of treaties. As for this argument, the court said that they didn’t need to consider applicability of VCLT deeply because it doesn’t matter as long as some of provisions in VCLT reflect a customary law.
2. Principle of Approximate Application
The main criticism towards Slovakia from Hungary was building up Variant C which was claimed as a ground for material breach. Slovakia believed there was ‘the principle of approximate application’ in international law. A state can take a measure which is most appropriate to realize an object of a legal agreement if it is impossible to achieve the purpose because of a counter party’s negligence. In accordance with Slovakia, the principle is required for following reasons. First, it is needed for stability of treaties. Second, there are some occasions that a state is not able to get enough reparation unless a treaty is realized. Third, a state should not get any advantage by illegal activity. Accordingly, obligation violating party should not prevent a counter party from complying with a treaty. Slovakia insisted that it was an international law and application of the principle is only way to respect 1977 treaty. Hungary denied the existence of such a principle, so Slovakia violated 1977 treaty as well as other general rules of international law by building up and operating Variant C.
However, the court replied that it was not necessary to judge whether the principle is incorporated in international law, because even if there exists such a principle, it is only applicable within the range of the arguing treaty. That is, Variant C is not in conformity with the purpose of 1977 treaty. The treaty was a joint invest project of two parties. So, it is not able to work by unilateral activities. Although Variant C seemed to have relevance with the object of 1977 treaty, since it caused change of navigation of watercourse by Slovakia’s unilateral activity, it was very different from the original purpose of the original project. Although Hungary violated 1977 treaty by neglecting its obligation, it doesn’t mean that its right to use and share water course and water resource of Danube was deprived. In conclusion, by operating Variant C, Slovakia violated both 1977 treaty and international.
3. Termination of Treaties
1977 treaty doesn’t have any provision that rules conditions under which both parties are entitled to terminate the treaty. So, Hungary put forward five arguments as grounds of termination of the treaty; state of necessity, impossibility of performance, fundamental change of circumstances, material breach and emergence of new norms of international environmental law.
(1) State of Necessity
Hungary says they are in the state of ecological necessity. Actually, this is main argument Hungary claims throughout the whole process of the trial. They say that the project causes critical environmental problems which they didn’t expect in 1977 when they concluded the treaty. Slovakia also doesn’t deny the environmental risks that Hungary says. However, it asserts those problems have been remedied. Hungary’s claim doesn’t convince the court. Because if you look at the international Law Commission in Article 33 of the Draft Articles on the International Responsibility for States, the state of necessity can only be invoked under certain condition which is that essential interest of the state should be threatened by a grave and imminent peril. In this case, although the court acknowledges the occurrence of environmental problems, the abandonment of the project is not only choice. So, even if there are
- Gabcikovo-Nagymaros 사건과 조약법, 정진석, 서울국제법연구 2003년 2,3호
- ICJ 최초의 환경관련 판례;Gabcikovo_Nagymaros Project에 관한 사건, 전경일, 국제법평론 통권 제 10호, 1998
- 국제하천에 있어서 댐건설과 유로변경에 관한 국제관습법, 이상면, 서울대학교 법학연구소, 1986
http://www.jstor.org/stable/view/761430?seq=7
http://www.slovakia.org/history-gabcikovo.htm
http://www.mates.sk/slalom/e_vdg.htm
외교통상부, http://www.mofat.go.kr
