Plenipotentiary of the Slovak Republic for Construction and Operation 

of Gabčíkovo – Nagymaros Hydropower Scheme

Complex statement of the Slovak republic governmental delegation

How to fulfill the objectives of the 1977 Treaty on base of the International Court of Justice Judgement

and

Statement of the Slovak part of the working group for water management, ecology, navigation and energy

(Information)

Bratislava, October 2002

Complex statement of the Slovak republic governmental delegation

How to fulfill the objectives of the 1977 Treaty on base of the International Court of Justice Judgement

I. introduction

[2] (paragraph 2 of the Judgement) „Considering that differences have arisen between the Czech and Slovak Federal Republic and the Republic of Hungary regarding the implementation and the termination of the Treaty on the Construction and Operation of the Gabčíkovo-Nagymaros Barrage System signed in Budapest on 16 September 1977 and related instruments (hereinafter referred to as "the Treaty"), and on the construction and operation of the "provisional solution";“

• Bearing in mind that the Slovak Republic is one of the two successor States of the Czech and Slovak Federal Republic and the sole successor State in respect of rights and obligations relating to the Gabčíkovo-Nagymaros Project;

• Recognizing that the Parties concerned have been unable to settle these differences by negotiations;

• The Parties submitted the questions contained in Article 2 of the Special Treaty signed on 7 April 1993 to the International Court of Justice in The Haag.

According to the Article 5 of the Special Treaty if the parties are unable to reach Treaty within six months, either Party may request the Court to render an additional Judgment to determine the modalities for executing its Judgment.

Judgment of the International Court of Judgment was rendered on 25 September 1997.

I.1. The objective of this statement

The objective of this statement is to define in complex way the possibilities of implementation of the Judgment of the International Court of Justice, as proposed by the Slovak Republic Governmental Delegation. (See for example material annexed to the minutes from negotiation on 5.6.2001, enclosure No. 5, handed over to the Hungarian Party, entitled “Documentation for establishment and negotiation of joined expert working groups”).

I.2. Negotiations state

Today’s mutual negotiations states (October 2002) preceded negotiations, which started after the Judgement of the International Court of Justice. Mutual Slovak - Hungarian efforts, good will, and material prepared mutually by the Slovak and Hungarian Governmental Delegations, as well as results of work of expert groups were finished on 27 February 1998 by signing the proposal „Framework Agreement between the Government of the Republic of Hungary and the Government of Slovak Republic on the principles of the implementation of the Judgment of the International Court of Justice of September 25, 1977 in the case concerning the Gabčíkovo-Nagymaros Project“. This proposal was approved by the Government of Slovak Republic, which expressed its readiness to sign it.

Further Hungarian Governmental Delegation (the new Delegation nominated after elections in Hungary, in summer 1998), has stated, that already worked out and signed proposal of Framework Agreement “About principles of Judgement implementation…” may not be base for future negotiations. For this reason Slovak Party requested the new Governmental Delegation to elaborate Hungarian proposal of implementation of the Judgement of International Court of Justice.

Following, in November 1999 the Office of the Chairman Of the Hungarian Republic Government - The Office of the Governmental Commissary for the Danube - worked out and in 9 December 1999 handed over to the Slovak Party extensive (more than 1400 pages) material named “Danube impact assessment tasks”, which represents new conception of Hungarian Party on implementation of the Judgement of The International Court of Justice in Hague, diametrically opposed view from the “Joint Contractual Plan” and preceding opinions (worked out mutually by Hungarian and Slovak Party), included in the Framework Agreement.

After very detailed study of this material and its thorough evaluation by Slovak experts the Slovak Party handed over in December 2000 “Standpoint to the proposal of Hungarian Party to the implementation of the Judgement of the International Court of Justice (I.C.J.) from 25 September1997 in the case concerning the Gabčíkovo – Nagymaros system of locks”. In this standpoint there are expressed mainly expert comments and opinions to the Hungarian idea of implementation of the Judgement of The International Court of Justice.

Following, on 2 April 2001 Slovak Party received Hungarian material “Proposal of Agreement…of implementation (to give the effect) of the Judgement of the International Court of Justice from 25 September 1997” with assurance, that the Hungarian Party “with great attention” studied the opinion of the Slovak Governmental Delegation.

Because this Hungarian proposal was not taking into consideration the expert concrete and technical statements of Slovak Party to the Hungarian technical proposal and ecological reasoning from November 1999, on the 5 June 2001 the Slovak Governmental Delegation explained on a meeting its opinions and ideas and handed over to the Hungarian Party document under name “Documentation for establishment and negotiation of joined expert working groups”, Enclosure 5 of the minutes. In this material there are again defined “modalities” to fulfil the objectives of the Treaty 1977, on which we have to agree before, on expert level, to be able to prepare the proposal of Framework Agreement about implementation of the Judgement of the International Court of Justice.

From this moment all mutual discussions have shown principal differences of the governmental delegations to the means of implementation of the Judgement of the I.C.J. Slovak Governmental Delegation convinced the Hungarian party that without discussion of technical and scientific questions, without agreement on technical arrangement and use of constructions, and without agreement on technical way of the realization of the Treaty 1977 and their comparison with the Treaty goals (in water management, river navigation, production of energy, flood protection and ecology) on the stretch of the whole System of hydropower stations and locks Gabčíkovo-Nagymaros, it is not possible to elaborate reasonable proposal of the implementation of the International Court of Justice Judgment.

Based on these arguments the joint working group for water management, ecology, navigation and energy and the working group for legal questions have been established. On the 6th meeting of working group for water management, ecology, navigation and energy, on April 23, 2002 in Budapest, the both parties jointly agreed on mandate of working group and on questions, which should be jointly examined. Working group for legal questions did not come to proposal of the legal arrangement of the system of Water works Gabčíkovo-Nagymaros and implementation of the Judgment, until now.

New period in negotiation started after the election in Hungary in summer 2002. Hungarian Governmental Delegation has been dissolved and the new one was not established yet (October 2002). Slovak Governmental delegation is prepared to continue in negotiation on the level of Governmental delegations and working groups.

I.3. Standpoint differences

In the first period of negotiation the Slovak and Hungarian experts agreed on solution, which was acceptable for both countries, and what is most important, on solution, which is fulfilling the Treaty 1977 goals in flood protection, improvement of navigation conditions, protection of environment, production of electrical energy and which is bringing also other benefits to both countries.

In the second period it emerges that between the standpoints of Slovak and the second Hungarian delegation have arisen principal differences on factual way of implementation of Judgment and on fulfilling the goals of the Treaty 1977 as a result of changes in policy of the Hungarian government after the elections.

The third period, after the elections in 2002 have not yet started, Hungarian delegation has not yet been established.

Principal standpoint differences of the Governmental delegations are given in following table:

Table 1. Principal standpoint differences of the Governmental delegations

II. Judgement

II. 1. Treaty 1977 in sense of the Judgement

The Judgement states [15] (paragraph 15 of the Judgement), that Treaty 1977 defines the construction and operation of the Gabčíkovo-Nagymaros system of locks „joint investment“, by which should have been achieved „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“. The basic objectives of the joint investment were production of hydroelectricity, the improvement of navigation, protection of the areas against flooding, and at the same time the parties undertook to ensure that the quality of water in the Danube was not impaired and, to fulfil requirements of nature protection.

Article 1, paragraph 4, of the Treaty further provided [18] that the technical specifications concerning the system would be included in the "Joint Contractual Plan", and the “joint investment [would] be carried out in conformity with the Joint Contractual Plan". Article 5 provided that the cost of the joint investment would be borne by the contracting parties in equal measure. Article 8 further stipulated that the Dunakiliti dam, the bypass canal and the two series of locks at Gabčíkovo and Nagymaros would be "jointly owned" by the contracting parties "in equal measure". Ownership of the other works was to be vested in the State on whose territory they were constructed. The parties were likewise to participate in equal measure in the use of the system put in place, and more particularly in the use of the base-load and peak-load power generated at the hydroelectric power plants. According to Article 10, the works were to be managed by the State on whose territory they were located, "in accordance with the jointly-agreed operating and operational procedures". The operation, maintenance (repair) and reconstruction costs of jointly owned works of the System of Locks were also to be borne jointly by the contracting parties in equal measure. According to Article 14, "The discharge specified in the water balance of the approved joint contractual plan shall be ensured in the bed of the Danube, between Dunakiliti and Sap, unless natural conditions or other circumstances temporarily require a greater or smaller discharge". "In the event that the withdrawal of water in the Hungarian-Czechoslovak section of the Danube exceeds the quantities of water specified in the water balance of the approved joint contractual plan and the excess withdrawal results in a decrease in the output of electric power, the share of electric power of the Contracting Party benefiting from the excess withdrawal shall be correspondingly reduced." Article 18, paragraph 1, provided that "The Contracting Parties, in conformity with the obligations previously assumed by them, and in particular with article 3 of the Convention concerning the regime of navigation on the Danube, signed at Belgrade on 18 August 1948, shall ensure uninterrupted and safe navigation on the international fairway both during the construction and during the operation of the System of Locks." It was stipulated in Article 19 "The Contracting Parties shall ensure compliance with the obligations for the protection of nature arising in connection with the construction and operation of the System of Locks."

The Joint contractual Plan [19] set forth both the objectives of the system and the characteristics of the works. The Joint Contractual Plan also contained "Preliminary Operating and Maintenance Rules", Article 23, which specified, "The final operating rules should be approved within a year of the setting into operation of the system." Operating rules shall solve, according the Article 13 of the Treaty, discharge of floodwater and ice as well as other aspects of the water regime. Provisional (present) operating rules were handed over to the Hungarian Party in December 2000.

The Court would recall [28] that the Gabčíkovo-Nagymaros System of Locks is characterized as a "single and indivisible operational system of works".

II.2. Base of the dispute in sense of the Judgement

 The Court states [40], „Throughout the proceedings, Hungary contended that, although it did suspend or abandon certain works, on the contrary, it never suspended the application of the 1977 Treaty itself. To justify its conduct, it relied essentially on a "state of ecological necessity". In following the Court states several facts and opinions of the both Parties and certifies [48] that the effect of Hungary's conduct was to render impossible the accomplishment of the system of works that the Treaty expressly described as "single and indivisible". The Hungarian argument on the state of necessity [54, 40] could not convince the Court unless it was at least proven that a real, "grave" and "imminent" "peril" existed in 1989 and that the measures taken by Hungary were the only possible response to it. The Court infers from all these elements that, in the present case, even if it had been established that there was, in 1989, a state of necessity linked to the performance of the 1977 Treaty, Hungary would not have been permitted to rely upon that state of necessity in order to justify its failure to comply with its treaty obligations, as it had helped, by act or omission to bring it about. To the problem of the state of necessity the Court notes (101) that even if found justified, it does not terminate a Treaty; the Treaty may be ineffective as long as the condition of necessity continues to exist; it may in fact be dormant, but — unless the parties by mutual Treaty terminate the Treaty — it continues to exist. As soon as the state of necessity ceases to exist, the duty to comply with treaty obligations revives, which means, at least, from the time of passing of the Judgement. Other objections of the Hungarian Party have been turned down for example in [102, 103, 104]. In following the Court states [104], that the changed circumstances advanced by Hungary are, in the Court's view, not of such a nature, either individually or collectively, that their effect would radically transform the extent of the obligations still to be performed in order to accomplish the Project.

The Slovak Governmental delegation understands it in the way, that the Court stated [101] that there was no state of necessity, that the 1977 Treaty is valid and there is still obligation to fulfil the obligations based on the Treaty, respectively the fulfilment of the Treaty obligations may not be in latent status on base of lack of justified reason. The Slovak Governmental Delegation is also of the opinion, that there is no reason of radical change of the scope of the obligations, which should have been fulfilled to finalise the Gabčíkovo-Nagymaros system of locks (of dams and hydropower stations), because there is even no real reason to it. Non-construction of the second part of the “single and indivisible operational system of works” fulfilling the 1977 Treaty objectives the Slovak Party considers a radical “change” in position and in non fulfilment of the obligations. Moreover, it is truth, if the Hungarian Party proposes investments in navigation way with lower quality of the navigation channel but with higher expenses than into multipurpose water work bringing also other profits. The Hungarian Party, by stopping the construction, helped to create the situation, which does not lead to fruitful results of negotiations [107]. This is valid also about the present negotiation status.

II.3. Important expressions and ideas from the Judgement

In this chapter we are stating only certain selected ideas from the Judgement, which we would like to underline. 

[131] The Parties will have to seek Treaty on the modalities of the execution of the Judgment. (Modality = general form of structure – proposition according to the possibility, impossibility, contingency or necessity), that means in principle in what way, measures, constructions, decisions we are going to fulfil the Judgement implementation.

[132] In this regard it is of cardinal importance that the 1977 Treaty is still in force and consequently governs the relationship between the Parties. That relationship is also determined by the rules of other relevant conventions; but it is governed, above all, by the applicable rules of the 1977 Treaty as a lex specialis.

[133] Essential is that the factual situation as it has developed since 1989 shall be placed within the context of the preserved and developing treaty relationship, in order to achieve its object and purpose in so far as that is feasible. For it is only then that the irregular state of affairs, which exists as the result of the failure of both Parties to comply with their treaty obligations can be remedied.

[134] The Court cannot ignore the fact that the Gabčíkovo power plant is in operation, that the bypass canal receives its water from a significantly smaller reservoir which is built not at Dunakiliti but at Čunovo, and that the plant in Gabčíkovo is operated in a run-of-the-river mode and not in a peak hour mode as originally foreseen. Equally, the Court cannot ignore the fact that, not only has Nagymaros not been built, but also that, with the effective discarding by both Parties of peak power operation, there is no longer any point in building it. Compare with Paragraphs [54, 128] of the Judgement.

[135] The 1977 Treaty was not only a joint investment project for the production of energy, but it was designed to serve other objectives: the improvement of the navigability of the Danube, flood control and regulation of ice-discharge, and the protection of the natural environment. None of these objectives has been given absolute priority over the other. None of them has lost its importance. In order to achieve these objectives the parties accepted obligations of conduct, obligations of performance, and obligations of result.

[136] It could be said that that part of the obligations of performance which related to the construction of the System of Locks — in so far as they were not yet implemented before 1992 — have been overtaken by events, …, when the objectives of the Treaty can be adequately served by the existing structures.

The Slovak Delegation understands this in the way, that there is no need to use Dunakiliti exactly according to the Treaty, because this task was taken over by Čunovo [145].

[137] Whether this is indeed the case is, first and foremost, for the Parties to decide.

[138] Not only did Hungary insist on terminating construction at Nagymaros, but Czechoslovakia stated that it was willing to consider a limitation or even exclusion of operation in peak hour mode. In the latter case the construction of the Nagymaros dam would have become pointless. The explicit terms of the Treaty itself were therefore in practice acknowledged by the parties to be negotiable.

[139] The Court is of the opinion that the Parties are under a legal obligation, during the negotiations to consider, within the context of the 1977 Treaty, in what way the multiple objectives of the Treaty can best be served, keeping in mind that all of them should be fulfilled.

[140] The court is of the opinion that the Project's impact upon, and its implications for, the environment is of necessity a key issue. The Parties together should look afresh at the effects on the environment of the operation of the Gabčíkovo power plant. In particular they must find a satisfactory solution for the volume of water to be released into the old bed of the Danube and into the side arms on both sides of the river.

[141] It is not for the Court to determine what shall be the final result of these negotiations to be conducted by the Parties. It is for the Parties themselves to find an agreed solution that takes account of the objectives of the Treaty, which must be pursued in a joint and integrated way, as well as the norms of international environmental law and the principles of the law of international watercourses. The Parties are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it (for example modifications in the proposal of “Framework Agreement … “ signed on 27 February 1998.).

[142] The Parties must find an agreed solution within the co-operative context of the Treaty. It is the purpose of the Treaty, and the intentions of the parties in concluding it, which should prevail over its literal application. The principle of good faith obliges the Parties to apply it in a reasonable way and in such a manner that its purpose can be realized.

Slovak Party understands this as certification, that Variant C shall be included in the Gabčíkovo-Nagymaros System of locks and not as cancellation of the Hungarian Republic obligation to build Nagymaros part of the joint Project.

[143] When bilateral negotiations without pre-conditions are held, both Parties can profit from the assistance and expertise of a third party.

[144] Since the Court has found that the Treaty is still in force and that, under its terms, the joint regime is a basic element, it considers that, unless the Parties agree otherwise, such a regime should be restored.

[145] The Court is of the opinion that the works at Čunovo should become a jointly operated unit within the meaning of Article 10, paragraph 1, in view of their pivotal role in the operation of what remains of the Project and for the water-management regime. The dam at Čunovo has taken over the role, which was originally destined for the works at Dunakiliti, and therefore should have a similar status.

[146] Variant C should be made conform with the Treaty and transformed from a de facto status into a treaty-based regime.

[147] Re-establishment of the joint regime will also reflect the concept of common utilization and protection of an International Watercourses in an equitable and reasonable manner.

[152] Slovakia is accordingly entitled to compensation for the damage suffered by Czechoslovakia as well as by itself as a result of Hungary's decision to suspend and subsequently abandon the works at Nagymaros and Dunakiliti, as those actions caused the postponement of the putting into operation of the Gabčíkovo power plant, and changes in its mode of operation once in service. Hungary is entitled to compensation for the damage sustained as a result of the diversion of the Danube, since Czechoslovakia, by putting into operation Variant C, and Slovakia, in maintaining it in service, deprived Hungary of its rightful part in the shared water resources, and exploited those resources essentially for their own benefit.

[153] The issue of compensation could satisfactorily be resolved in the framework of an overall settlement if each of the Parties were to renounce or cancel all financial claims and counter-claims.

[154] At the same time, the Court wishes to point out that the settlement of accounts for the construction of the works is different from the issue of compensation, and must be resolved in accordance with the 1977 Treaty and related instruments. If Hungary is to share in the operation and benefits of the Čunovo complex, it must pay a proportionate share of the building and running costs.

II.4. The Court decided [155]:

(1)

1. The Hungary was not entitled to suspend and subsequently abandon, in 1989, the works on the Nagymaros Project and on the part of the Gabčíkovo Project for which the Treaty of 16 September 1977 and related instruments attributed responsibility to it.

2. Czechoslovakia was entitled to proceed, in November 1991, to the "provisional solution" as described in the terms of the Special Treaty.

3. Czechoslovakia was not entitled to put into operation, from October 1992, this "provisional solution"

4. 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)

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

2. Hungary and Slovakia must negotiate in good faith in the light of the prevailing situation, and must 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.

3. Unless the Parties otherwise agree, a joint operational regime must be established in accordance with the Treaty of 16 September 1977.

4. Unless the Parties otherwise agree, Hungary shall compensate Slovakia for the damage sustained by Czechoslovakia and by Slovakia on account of the suspension and abandonment by Hungary of works for which it was responsible; and Slovakia shall compensate Hungary for the damage it has sustained on account of the putting into operation of the "provisional solution" by Czechoslovakia and its maintenance in service by Slovakia.

5. The settlement of accounts for the construction and operation of the works must be effected in accordance with the relevant provisions of the Treaty of 16 September 1977 and related instruments, taking due account of such measures as will have been taken by the Parties in application of points 2 B and C of the present operative paragraph.

III. Understanding of the judgement by Slovak Governmental Delegation

III.1. The Judgement

Cardinal importance for negotiation has fact that the 1977 Treaty and the relevant documents including the Joint Contractual Plan is still in force, that Slovakia is in the 1977 Treaty and ongoing negotiations successor state, that Hungary and Slovakia must negotiate in good faith in the light of the prevailing situation, and must 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.

Czechoslovakia was entitled to proceed to the provisional solution. Czechoslovakia was not entitled to put into operation provisional solution, Variant C. The aim is to make the Variant C conform to Treaty and to transform this way the present situation into a treaty based regime.

Unless the Parties otherwise agree, a joint operational regime must be established in accordance with the Treaty of 16 September 1977.

The damages arisen from suspension and abandonment of works by Hungary, and damages which has sustained on account of the putting into operation of the "provisional solution" by Czechoslovakia should be defined and compensated, unless the Parties otherwise agree, for example, by its mutual renouncing, or other compromise.

The settlement of accounts for the construction of the works on the Project, and for the operation and maintenance should be carried out.

Without knowledge of the final technical solution it is not possible to make calculation of compensation and to make the settlement of accounts for the construction of the works. It is also not possible to compare up to what level the objectives of the 1977 Treaty would be fulfilled.

III.2. Objective of the International Court of Justice Judgement

The main aim of the Judgment was to solve the differences, which the Parties concerned have been unable to settle by negotiations, mainly to answer the questions contained in the Special Agreement.

The Judgement underlines the requirement to achieve the object and purpose of the Treaty so far as that is feasible and that the factual situation as it has developed since 1989 shall be placed within the context of the preserved and developing treaty relationship. Present irregular state of affairs shall be improved in such a way, that both Parties will have to comply with their treaty obligations. That means, the basic idea of the Judgement is, that obligation of conduct, obligation of performance, and obligation of result are valid according to the Treaty 1977 and that objectives of the Treaty have not lost their importance, are good and it is necessary to fulfil them so far as that is feasible. First of all it is flood control and regulation of ice-discharge, improvement of the navigability of the Danube, production of energy, finding and implementation of satisfactory solution for protection of the natural environment, and if necessary also others, as for example, regional development, agricultural support, forest industry, tourist business and mainly development of mutual relations between Hungary, Slovakia and other Danube states, besides other also use of the most important trans European navigation. It is therefore necessary, in connection with the 1977 Treaty, to negotiate about obligations for the future.

Paragraph [136] of the Decision mentions, that part of obligations of performance which related to the construction of the System of Locks – in so far as they were not yet implemented before 1992 – have been overtaken by events, it is not necessary to implement them, when (in the event that) the objectives of the Treaty can be adequately served by the existing structures. For Slovak party that means:

• When the objectives of the Treaty can serve adequately constructions built before 1992 it is necessary to use them, and not to destroy them and then build new ones (mainly Variant C – Čunovo).

• In the case there are no constructions, which may serve the objectives of the Treaty, it is necessary to negotiate and do everything to fulfil objectives of the Treaty. In case the objectives of the Treaty cannot be achieved by existing constructions, then it is necessary to propose, project and build constructions fulfilling them. (Nagymaros or any other suitable solution, flood protection measures, navigation measures, etc.).

• About the fact, what obligations have been overcome by the development shall decide first and foremost the Parties by mutual negotiation. The Parties are under a legal obligation, during the negotiations to be held, to consider, within the context of the 1977 Treaty, in what way the multiple objectives of the Treaty can best be served, keeping in mind that all of them should be fulfilled. (The legal obligation to construct the Nagymaros dam, or similar construction fulfilling the objectives of the Treaty, is not cancelled).

From that Slovak Delegation understands, that the Court has not prohibited the negotiations about any question concerning the objectives of the Treaty. The Court does not prescribe any solution neither prohibits any technical solution at all. The Court has not prohibited constructing the Nagymaros part of the joined Project, or any other construction. The Court recommends negotiating about everything, which means also about the Nagymaros part of the Project or any other adequate construction. The Court will accept what we would jointly agree upon and what is sound and reasonable. Besides this, we have to achieve in the best way the multipurpose objectives of the 1977 Treaty. The Court recommends this to make it in reasonable way and without preconditions. It was not the task of the Court to state the final result of the negotiations. The basic idea of the Judgement is, that we shall negotiate about everything lacking (what was not implemented until 1992) to fulfil the objectives of the Treaty and to find the best possible and reasonable solution. Slovak Party is of the opinion, that it has full right to request from the Hungarian Party negotiation about all aspects leading to optimal fulfilment of the Treaty 1977 objectives, based on mutual expert studies.

The Judgement states that both Parties are entitled to compensation for the damages mutually caused. It is recommended to solve this question in framework of an overall settlement if each of the Parties were to renounce or cancel all financial claims and counter-claims. In the same time the Court states that the settlement of accounts for the building and running costs must be resolved in accordance with the 1977 Treaty. That means same investments, same work and on base of this the same benefits (Equal pay for equal work.).

The Court states that we have to negotiate mutually in good faith, in the light of the prevailing situation and must take all necessary measures to ensure the achievement of the objectives of the Treaty, in accordance with such modalities as we may agree upon.

The Court considers as key question project impact on the environment. Both Governmental Delegations have approach to the national and joint results of the joint Slovak - Hungarian environmental monitoring in sense of Agreement 1995 as well as results of the Hungarian studies “Danube impact assessment tasks” handed over to the Slovak Party on 9.12.1999 and two materials of Natural science Faulty of Comenius University Bratislava named „Gabčíkovo part of the hydroelectric power project, Environmental impact Review, (Evaluation based on two and six year monitoring), published in years 1995 a 1999. Besides that there are many other studies, which can be used at EIA (Environmental Impact Assessment). These studies are following the Court opinion that the Parties shall assess impact of Gabčíkovo power plant operation on the environment. These studies, common for both countries, shall be used at search of ways and modalities the Treaty objectives fulfilment and optimisation of their impact on the environment.

Slovak Governmental Delegation understands the Judgment of the International Court of Justice as a document, considering multipurpose objectives of the Treaty as correct, has the wish, that the objectives will be implemented, both Parties will find reasonable mutual solution and also in the future they will develop the relations based on the 1977 Treaty. Besides this it supports the solutions based on cooperation, mutual and justified use, improvement and protection of the watercourses. The Court supports the mutual cooperation of the both countries, good neighbourhood and partnership relations and solution of the dispute in the most acceptable way for the both Parties on base of principle of equal footing in respect of the financing, construction and operation of the work and equal footing in respect of profit.

IV. Negotiations about implementation of the I.C.J. Judgement

The Gabčíkovo – Nagymaros System of Locks is characterised as a „single and indivisible operational system of works“.

The Gabčíkovo part of the Project exist, most of the constructions are finished. Certain objectives of the Treaty were fulfilled. To fulfil the Treaty objectives are used only existing constructions. Some other constructions have to be projected and build.

The Nagymaros part of the Project does not exist, is not in operation, and for this reason on the Nagymaros section of the Danube were practically not fulfilled Treaty objectives up to now (in spite of significant expenditures). In the case that the Treaty objectives have to be fulfilled the constructions have to be projected and built. 

To show the expert side of the problems of Treaty objectives fulfilment and the idea of Slovak Party how to approach the negotiations, we will state the example of the Gabčíkovo part of the Project (all constructions practically built) and the Nagymaros part of the Project (only part of anti flood dams were built).

IV.1. Gabčíkovo part of the Project

The objective, stated by the I.C.J. Judgement, is the factual situation as it has developed since 1989 to place within the context of the Treaty, in order to achieve its object and purpose in so far as that is feasible [133, 134, 135]. The Parties are under a legal obligation, during the negotiations to consider, within the context of the 1977 Treaty, in what way the multiple objectives of the Treaty can best be served, keeping in mind that all of them should be fulfilled [139]. The fulfilling the tasks on the old Danube and Mosoni branch of the Danube, according to the Joint Contractual Plan, belongs to the Hungarian Party.

The Treaty objectives and fulfilment of the International Court of Justice Judgement on this section of the Danube are:

• Including the Čunovo dam into an integral part of the Gabčíkovo-Nagymaros System of Locks and into the treaty-based regime.

• Protection of natural environment.

• Flood control and regulation of ice-discharge.

• Production of electric energy (in running and peak hour mode).

• Improvement of the navigability of the Danube.

To the mentioned individual points it is necessary jointly to work out:

• Technical part of including Čunovo structures as integrated part of the Gabčíkovo-Nagymaros Project into agreed regime:

• Description of Čunovo structures.

• Operational regime at Čunovo structures.

• Technical conditions for decision, whether Čunovo structures will be joint or national investment.

• Estimation of the price of Čunovo structures.

• Impact of Čunovo structures on share of costs and benefits from Gabčíkovo part of Project.

• Further use of Dunakiliti dam and impact of such decision on share of costs and benefits from Gabčíkovo part of Project.

• Flood protection and ice-discharge:

• Defining the maximum discharge considered to which the old Danube should be adapted.

• Ways of ice-discharge.

• Defining the anti flood criteria.

• Defining dangerous parts from the flood protection point of view (e.g. based on the flood event experience in August 2002)

• Defining the objectives of anti flood maintenance of the old Danube.

• Identification of alternatives by which the above stated criteria may be fulfilled.

• Defining the function of Dunakiliti dam in anti flood protection and ice-discharge.

• Defining the necessary maintenance of the old Danube and inundation area from the anti flood protection point of view.

• Joint operation rules on the Čunovo - Dunakiliti – Gabčíkovo – Sap Danube section.

• Environmental criteria of the measures envisaged in the old Danube and inundation area and identification of environmental requirements:

• Impact evaluation of provisional measures and discharges into the old Danube and Mosoni branch of the Danube as implemented in the framework of the 1995 Agreement from the point of natural environment.

• Identification of requirements based on I.C.J. Judgement, international agreements, and EU Reglements.

• Definition of water level requirements in the Danube upstream the Dunakiliti weir and definition of Dunakiliti dam function at regulation of water level and water supply of the Hungarian river branch system,

• Definition of required ground water level on Hungarian territory,

• Definition of what natural environment status can be considered as optimal in flooded area (inundation area) and river branch system as well as in Mosoni branch of the Danube.

• Define what state of natural environment shall be reached in inundation area using water regime regulation and what are the requirements for interconnection of the old Danube riverbed with its river branches.

• To work out method and criteria of evaluation of water regime impact on soil moisture and on the terrestrial flora using phyto-indication methods.

• Definition of adjustments on Dunakiliti weir area on Hungarian territory and opportunities of joint use for recreation, sports, and culture.

• Elaboration of alternatives suiting the requirements of Treaty objectives in the old Danube as well as water regime requirements of Slovak and Hungarian river branch system.

• Navigation

• To decide what navigation and under what conditions shall be ensured in the old Danube.

• To define possibilities of the Dunakiliti weir to be used for navigation.

• To define what works are necessary to carry out to ensure the proposed kind of navigation,

• To define necessary maintenance of the old riverbed from the point of navigation,

• Power production

• To elaborate and agree method of calculation for amount of electric power (formula) which can be produced depending on discharge and gradient on power plant Gabčíkovo according to the Joint Contractual Plan, Hungarian Party proposals and other proposals.

• To estimate characteristics of peak power production by comparing definitions of the Joint Contractual Plan, Hungarian Party proposals and other proposals.

• To compare power production for each solution proposal and to compare them with the Treaty 1977 Project.

• Identification of power market characteristics in both countries and expected further development.

• To work out calculation method of share of the Parties at power produced in power plant Gabčíkovo as included in the Joint Contractual Plan, to estimate the Hungarian share from power produced up to now.

• Methods and implementation of joint environmental impact assessment.

• The task of the working group is to propose method of environmental impact assessment (EIA) for possible technical alternatives.

• To define quality and quantity (degree) of the Treaty 1977 objectives fulfilment.

IV.2. Nagymaros part of the project

The objective as stated by the International Court of Justice Judgement is the factual situation as it has developed since 1989 to place within the context of the Treaty, in order to achieve its object and purpose in so far as that is feasible [133, 134, 135]. The Parties are under a legal obligation, during the negotiations to consider, within the context of the 1977 Treaty, in what way the multiple objectives of the Treaty can best be served, keeping in mind that all of them should be fulfilled [139].

Treaty objectives and fulfilment of the International Court of Justice Judgement at this part of the Danube are:

• Flood control and regulation of ice-discharge.

• Improvement of the navigability of the Danube.

• Protection of natural environment.

• Electric power production using hydro energetic potential of this part of the Danube and improvement of power quality at Gabčíkovo hydropower plant (peak power production).

• To find the way, how to fulfil the objectives of the Treaty in so far as that is feasible and at least as good as it was possible to fulfil by the Nagymaros part of the joint project.

• To create conditions for peak power production in Gabčíkovo hydropower plant according to the 1977 Treaty.

• To compare parameters and benefits of the proposed technical solutions with solutions according to the 1977 Treaty.

To the individual points it is necessary jointly to work out:

• Flood protection:

• Estimation of maximal discharges to be considered at proposals.

• Defining dangerous Danube stretches from the point of flood protection.

• Evaluation of existing flood protection from village Sap to Szop and further to Budapest. 

• Navigation:

• Defining the required navigation conditions for international navigation.

• Defining the possibilities to create required navigation conditions.

• Defining necessary maintenance from the navigation point of view.

• Environmental criteria of the Danube riverbed treatment:

• Define water level in the Danube and its branches before riverbed decline and their mutual interconnection, as well as ground water levels. 

• Define environmentally optimal water level in the Danube and its branches, their mutual interconnection and define optimal ground water level

• Define natural conditions, which are considered in the Danube and its branches and surroundings as optimal from the ecological point of view.

• Define environmental condition, which shall be achieved in Danube, its branches and surrounding territories.

• Work out methods and criteria for evaluation of water regime impact on environment at this part of the Danube. 

• Define environmental values of the Danube, its branches and surrounding territories, including valuable biotopes, which shall be supported or rehabilitated by water management.

• Work out environmental concepts to estimation of the state, which should be reached.

• Estimate environmental objectives for Danube riverbed, for its branches and for ground water on surrounding territory.

• Propose rehabilitation of areas identified as devastated.

• Define possible measures against narrowing of the water surface in the river branches as well as against drying processes with the goal, that its hydraulic connectivity will be more intensive.

• Classify types of branches from environmental point of view, from parapotamal to plesiopotamal, which are typical for the area and important for biodiversity and define recommended flow velocities.

• All technical works in the Danube riverbed and its branches, as well as maintenance of the navigation channel, shall be evaluated from environmental point of view.

• Power production:

• It is important to estimate electric power production for every proposal and to compare it with the Treaty 1977 project.

• Method and realization of joint environmental impacts assessment:

• The working group task is to propose methods of environmental impact assessment evaluation (EIA) for alternatives of possible technical solutions according to the Joint Contractual Plan and Hungarian Party proposals.

• To define up to what extent was the Joint Contractual Plan and the objectives of 1977 Treaty fulfilled:

• To define up to what extent was the Joint Contractual Plan fulfilling the improvement of navigation conditions objective.

• To define up to what extent was the Joint Contractual Plan fulfilling the objective of flood protection.

• To define up to what extent was the Joint Contractual Plan fulfilling the environmental requirements in conditions of peak and non-peak power production at Gabčíkovo.

• To define the possible impact of the Joint Contractual Plan upon natural conditions along the Danube.

• To define up to what extent was the Joint Contractual Plan fulfilling the energetic requirements. 

• To define up to what extent was the Joint Contractual Plan fulfilling the interconnection to other, national, project investments, for example irrigation, navigation in internal waterways, water resources, infrastructure, etc.

• To find the way how to the greatest possible extent could be possible to fulfil objectives of the 1977 Treaty, at least to such an extent, as it would be fulfilling the Nagymaros part of the project:

• To define how to improve navigation conditions and to reach required navigation parameters.

• To define how to fulfil objectives of the flood protection.

• To define how to fulfil of environmental requirements.

• To define how to improve natural conditions alongside the Danube,

• To define how to fulfil energetic requirements.

• To define how to fulfil requirements of interconnection to other projects, irrigation, internal navigation, water resources, development of infrastructure, etc.

• To compare parameters and benefits of the proposed technical solutions with solution according to the 1977 Treaty and to define the level of 1977 Treaty objectives fulfilment.

V. Negotiation problems

These problems will be now described from Slovak Party point of view.

Gabčíkovo-Nagymaros System of Locks is characterized as a "single and indivisible operational system of Gabčíkovo and Nagymaros works, which are closely interconnected and have mutual impact on each other”.

From point of view of the Slovak Party the basic negotiation problem is the fact, that Gabčíkovo part of the Project was already put into operation and partially fulfils the Treaty objectives. The Nagymaros part of the Project was not jet constructed and besides the part of partial flood protection does not fulfil the 1977 Treaty objectives. The Nagymaros part of the Project is the key question at further decision-making. Its construction, non-construction, construction of substitutes to fulfil the objectives of the 1977 Treaty, heavy fortification of the Danube riverbed from Sap to Budapest to ensure at least to certain level navigation, and others, should be agreed before preparation of the proposal of implementation of the International Court of Justice Judgment. This is important also from the point, that on this decision will be based all further negotiations including the 1977 Treaty objectives fulfilment, start of the joint treaty regime, identification of damages and its compensation, settlement of accounts for the construction and of works, and others.

V.1. Nagymaros part of Project

Base of the dispute is shortly stated in chapter II.2. None of the reasoning  [40] about stopping or breaking the works on the project stated by Hungarian Party was accepted by the International Court of Justice [54, 57, 101, 102, 103, 104 and others]. Even the change of circumstances advanced by Hungary as argumentation are, in the Court’s view, not of such a nature, that their effect would radically transform the extent of the obligations still to be performed in order to accomplish the Gabčíkovo – Nagymaros Project [104]. Slovak Governmental Delegation understands this that the Court is of the opinion [101], that the state of necessity was not existing, that the 1977 Treaty is still in force, and therefore still exists the duty to fulfil the treaty obligations, and, that fulfilment of the treaty-obligations cannot be ineffective on base of the fact that there is no justified reason. Therefore there is no reason radically to transform the extent of the obligations [104], and, that obligations are still to be performed in order to accomplish the Project.

Slovak Party stressed [128], „whether Nagymaros is built as originally planned, or built elsewhere in a different form, or, indeed, not built at all, is a question to be decided by the Parties some time in the future“.

This future is here, today. Slovak Party expressed itself, that „the Gabčíkovo power plant would not operate in peak mode if the evidence of environmental damage [was] clear and accepted by both Parties“.

Important is the statement [55], that „Even though the Joint Contractual Plan envisaged that the Gabčíkovo power plant would "mainly operate in peak-load time and continuously during high water", the final rules of operation had not yet been determined (see paragraph 19 above); however, any dangers associated with the putting into service of the Nagymaros portion of the Project would have been closely linked to the extent to which it was operated in peak mode and to the modalities of such operation.“.

In reality, the reasons stated by Hungarian Party before International Court of Justice justifying the Hungarian Party to stress that they are not going to build Nagymaros part of the joint Project are not existing.

The Court writes [134], „the Court cannot ignore the fact that, not only has Nagymaros not been built, but that, with the effective discarding by both Parties of peak power operation, there is no longer any point in building it“ (compare with art. [128] of the Judgment).

The opinion of the Court is reasoned from the point of necessity of Nagymaros part of the Project for peak mode operation at Gabčíkovo hydropower plant. „Czechoslovakia stated [138], that it was willing to consider a limitation or even exclusion of operation in peak hour mode.“ In the last stated case the dam construction in Nagymaros would be unnecessary, but this is valid only from the peak operation point of view. The Parties acknowledged that separate statements of the 1977 Treaty might be subject of future negotiation. By this were not ceased other 1977 Treaty objectives, power production at Nagymaros as well as other positive effects or positive and negative impacts. This is valid also for the environment. From 1977 Treaty objectives would be ceased peak power production. To this point Slovak Party declares (according to the Art. 138 I.C.J. Judgement), that it is also for the future willing to consider occasional limitation or even exclusion of peak power operation. This does not mean that the Nagymaros part of the joined Project or any other project substituting Nagymaros Project should not be constructed to fulfil other 1977 Treaty objectives.

Paragraph [136 a 137] of the Judgement states that „It could be said that that part of the obligations of performance which related to the construction of the System of Locks — in so far as they were not yet implemented before 1992 — have been overtaken by events. It would be an administration of the law altogether out of touch with reality if the Court were to order those obligations to be fully reinstated and the works at Čunovo to be demolished when the objectives of the Treaty can be adequately served by the existing structures. Whether this is indeed the case is, first and foremost, for the Parties to decide. Under the 1977 Treaty its several objectives must be attained in an integrated and consolidated programme, to be developed in the Joint Contractual Plan.”

Paragraph [136] of the Judgement states: „It could be said ...“, and mentions example of constructed „works at Čunovo“, which „can adequately serve“, because they are already „existing structures“. The Court, from the same reasons, does not mention that if for the fulfilment of Treaty objectives the Nagymaros part of the Project is not constructed, than it is not necessary to construct it. The Court states that: „not only has Nagymaros not been built“… „but that, with the effective discarding by both Parties of peak power operation, there is no longer any point in building it“. Immediately after it is added: “Whether this is indeed the case is, first and foremost, for the Parties to decide”. That means to negotiate and decide jointly how to fulfil in sufficient extent the 1977 Treaty objectives. In the case we will come to the conclusion, that the best solution is 1977 Treaty solution, eventual with some changes taking into account present situation, than let us build Nagymaros dam and hydropower structures. The Court does not prohibit that, it states: „whether this is indeed the case is, first and foremost, for the Parties to decide”.

The Hungarian Party at present refuses negotiation about any question considering construction of Nagymaros part of the Project and about any other implementation of water level impoundment in this Danube section.

Construction of Nagymaros part of the Project or any other similar project would fulfil the 1977 Treaty objectives and bring certain other benefits given in following table.

Table 2. Treaty objectives and benefits of Nagymaros part of the Project

The Hungarian Party in the handed over documentation has not convinced Slovak experts that from environmental point or any other point of view the Project at Nagymaros or similar project should not be constructed; for example from the point of view of flood protection, navigation, or from economical point of view not to produce electric power in Nagymaros at least in the river mode regime.  On the other hand all documents witness that the Nagymaros part of the Project or any other similar project, fulfilling 1977 Treaty objectives, is from all points the best and most complex solution, bringing also electric power benefit. The handed over proposal by the Hungarian Party (9 December 1999) of the long-term concept of Danube reconstruction from Sap to Budapest does not solve safe release of foods, environmentally means long term water level decrease and moreover nearly every 4 km “armoured riverbed”, which does not correspond with environmental Danube ideas and does not fulfil improvement of navigation conditions. Besides that, during following 50 years will be spent billions for maintenance and than new stage of long-term river training concept may start again.

Slovak Party is of the opinion, that the Judgement does not prohibit constructing the Nagymaros Project or any other similar project and first of all does not prohibit negotiations about such a projects. The Court is of the opinion, that it is not necessary to construct the Nagymaros level from point of peak power production in case the peak power will not be produced. The Judgement, in the Paragraph [136], mentions that parts of the obligations have been overcome by the development in the case that existing constructions may adequately serve the objectives of the Treaty. In the case that such a constructions do not exist, it is clear, that something should be done to fulfil the Treaty objectives. And, whether it is so, and the way how shall we do that, should be decided first of all by our Governmental Delegations during joint negotiations. The Hungarian Party, for example, proposes in the Danube section from Dunakiliti to Sap ensuring meandering of the river by construction of several dams and new riverbed or increasing and narrowing the river bottom. In the section between Sap and Budapest they propose “classic methods” to stop lowering of the Danube bottom by construction of fortified bottom and banks in regular intervals.

For this reason the Slovak Party has the wish to negotiate with Hungarian Party about newly proposed constructions as well as about construction of Nagymaros Project in sense of 1977 Treaty, and in following, to discuss the level of the peak power operation, which seems to be the only question from environmental point of Nagymaros not discussed also in sense of the valid 1977 Treaty.

V.1.1. Possibilities of fulfilment of the 1977 Treaty objectives and Judgement implementation

From technical point of view on the Danube from Sap to Budapest as a base for the negotiation and fulfilment of the Judgement it is possible to accept following materials and basic position of the Parties:

• The 1977 Treaty Project with some eventual changes about which we could agree due to the present situation, as it developed since 1989. That means the Nagymaros Project with some changes.

• Solution proposed in the “Framework agreement between the Government of the Republic of Hungary and the Government of Slovak Republic on the principles of implementation of the Judgment of International Court of Justice … “signed on 27.2.1998. That means construction of the Pilismarót project proposal. The project is not ready yet and it will be necessary to work it out.

• Proposal of the “Office of the Chairman of the Hungarian Republic Government – The Office of the Governmental Commissary for the Danube” as handed over to the Slovak Party in December 1999. That means complex reconstruction, fortification and narrowing of the Danube riverbed from Sap to Budapest including permanent need for the maintenance of the navigation conditions, and mainly, lowering of the quality of navigation in this European waterway section of the Danube.

• Other new proposal, which, on the base of the 1977 Treaty objectives, and other agreed benefits, (for example Table above) would be acceptable and beneficial for both Parties. This means to start from the very beginning, using the existing materials, knowledge and results of environmental monitoring.

„It is not for the Court to determine what shall be the final result of these negotiations to be conducted by the Parties [141]. It is for the Parties themselves to find an agreed solution that takes account of the objectives of the Treaty, which must be pursued in a joint and integrated way, as well as the norms of international environmental law and the principles of the law of international watercourses”. "The Parties are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it" [141].“ Nowhere in the Judgement has the Slovak Party found mention, that the Court has prohibited to negotiate about some subject, technical solution, or existing project. In the opposite, „...it is the purpose of the Treaty, and the intentions of the parties in concluding it, which should prevail over its literal application [142]“. That implies negotiating. „The principle of good faith obliges the Parties to apply it in a reasonable way and in such a manner that its purpose can be realized“. Slovak Party can agree only with such technical solution, which is reasonable, from environmental point beneficial, and sufficiently fulfils Treaty objectives. Slovak Party does not give any preconditions besides one, that it would like to negotiate about all possible and reasonable technical solutions without limit and is willing to invite to such negotiation third party experts.

For this reason Slovak Governmental Delegation repeatedly proposes negotiations about possibilities of the 1977 Treaty objectives fulfilment at Nagymaros section of the Danube. It proposes negotiation about comparing the Nagymaros Project with other proposals of Treaty objectives fulfilment. Subsequently proposes to negotiate about the best technical solution of the 1977 Treaty objectives fulfilment, receiving the benefits, minimising the construction and maintenance costs as well as from point of view of good neighbourhood relation development. Important aspect necessary to be negotiated is environmental improvement, what according to the material of the Office of the Chairman of the Hungarian Republic Government – The Office of the Governmental Commissary for Danube is in very bad state and in this section of the Danube does not exist detailed concept of environmental objectives, which shall be achieved in the Danube and surrounding environment.

It seems, that the Hungarian Party still negotiates according to the decisions of Hungarian Parliament and Hungarian Government. As an example we will mention, that in technical concept of the Danube regulation is as principle of technical solution mentioned respecting “valid Decision of Parliament”, prohibiting start of operation of the Dunakiliti weir or the constructions of weir should be disassembled. Similar example can be found in mentioned material: “…to elaborate such working parts based on which the Hungarian Delegation (and public) will take decision on conceptual level, that also in the case of non construction of downstream weir and water impoundment (Pilismarót, Nagymaros) for the long interval it will be possible to keep navigation channel fulfilling international requirements and it will be possible to fulfil basic goals to improve environmental requirements”.  

In the whole Hungarian material Slovak experts did not find any reasoning, whether from point of water management, navigation or environment, why the Project Nagymaros of the System of water works Gabčíkovo - Nagymaros should not be build. In the opposite, all Treaty 1977 objectives, first of all flood protection, environmental protection, improvement of navigation, interconnection of branches, infrastructure development, clean power production, as well as costs, are supporting the idea to construct Nagymaros part of the Project or any other similar project, fulfilling the 1977 Treaty objectives, and also economical needs of both countries as well as other countries from present point of view. The only open question is the peak power production, which the Hungarian Party in the handed over material considers today from different point of view, what can not be an obstacle in negotiations of Nagymaros, or similar other project, fulfilling the Treaty objectives. Slovak Party cannot agree with Hungarian refusal to negotiate expert and technical questions how to fulfil in the best way 1977 Treaty objectives. 

For this reason Slovak Party proposes to negotiate with the Hungarian Party all basic questions mentioned at the beginning of this chapter as well as Nagymaros section of the Danube in the sense of the valid 1977 Treaty, with changes that could be agreed, and after that to negotiate the peak power production questions. Such a position is correct, because it allows both Parties to clear opinions and arguments and in such a way to make at least a step towards mutual decision.

In the case of achieving an agreement a new time schedule of works shall be done and this shall be included into the Joint Contractual Plan, including the joint Environmental Impact Assessment studies.

V.2. Gabčíkovo section

The base of dispute is shortly stated in Chapter II.2. None of the arguments [40] to stop or interrupt the works on the project as stated by the Hungarian Party was accepted by the Court [54, 57, 101, 102, 103, 104 and others]. Even the change of circumstances advanced by Hungary as argumentation are, in the Court’s view, not of such a nature, that their effect would radically transform the extent of the obligations still to be performed in order to accomplish the Gabčíkovo – Nagymaros Project [104]. The Slovak Governmental Delegation understands this, that the Court is of the opinion [101], that the state of necessity did not exist, that the 1977 Treaty is still in force, and therefore still exists the duty to fulfil the treaty obligations, and, that fulfilment of the treaty-obligations cannot be ineffective on the base of the fact that there is no justified reason and that there is no reason at all to transform radically the extent of the obligations [104], still to be performed in order to accomplish the Project.

V.2.1. Possibilities to fulfil the 1977 Treaty objectives and the Judgement implementation

For Gabčíkovo section the Judgement means to come to an agreement on:

• The works at Čunovo should become a jointly operated unit, in view of their pivotal role in the operation of what remains of the Project. The dam at Čunovo has taken over the role, which was originally destined for the works at Dunakiliti, and therefore should have a similar status [145].

• The way of operation of variant C should be made to conform to the Treaty and by associating Hungary, on an equal footing, in its operation, management and benefits, by transformation from a de facto status into a treaty-based regime [146]. This is inevitable also for the reason, that both Parties shall participate on benefits and profits from the System of Gabčíkovo-Nagymaros locks and other works. 

• The Parties have the opportunity [150], to agree to maintain the works at Čunovo, with changes in the mode of operation in respect of the allocation of water and electricity, and not to build works at Nagymaros.

• Compensations and settlement of accounts can be satisfactory done in frames of total solution.

On mentioned points can be agreed as the Court proposes or also in other way.

The settlement of accounts for the construction of the works must be resolved in accordance with the 1977 Treaty and related instruments. If Hungary is to share in the operation and benefits of the Čunovo complex, it must pay a proportionate share of the building and running costs [154]. The consequences of the wrongful acts of both Parties will be wiped out "as far as possible" if they resume their co-operation in the utilization of the shared water resources of the Danube, and if the multi-purpose programme, in the form of a co-ordinated single unit, for the use, development and protection of the watercourse is implemented in an equitable and reasonable manner [150]. According to the 1977 Treaty, the main structures of the System of Locks are the joint property of the Parties; their operation will take the form of a co-ordinated single unit; and the benefits of the project shall be equally shared [144]. The joint regime is a basic element. In case we will not come to the agreement, this regime shall be renewed. Article 5 of the 1977 Treaty provided that the cost of the joint investment would be borne by the contracting parties in equal measure. It specified the work to be carried out by each one of them [18].

The Parties together should look afresh at the effects on the environment of the operation of the Gabčíkovo power plant and they must find a satisfactory solution for the volume of water to be released into the old bed of the Danube and into the side arms on both sides of the river [140]. See Chapter III.2, last but one indentation.

The Slovak Party with satisfaction accepts the opinion of the Hungarian Party (material submitted in December 1999) that environmental principles in part of Gabčíkovo level are:

• priority of side branches supply with water,

• water level increase in the Danube and in ground waters,

• supply of the old Danube downstream Čunovo by flowing water.

Important part of the proposal is the knowledge of five recognised Hungarian institutions defining the substance of the “Environmental technical concept”. The substance is, that the Szigetkőz part of the Danube should, between the state borderline at Rajka   (river kilometre - rkm 1850) and Dunakiliti (rkm 1839), ensure water supply of the side branches and by this also the soil moisture (throughout ground water and capillary zone up to the zone of soil moisture). Most important task of the old Danube shall be flood control, passing the floodwater, and ice-discharge and sport and small vessel navigation. The discharges should be to such level, that that there will be no eutrophisation - algae growth. See in detail: “Standpoint to the proposal of Hungarian Party …”handed over to the Hungarian Party in December 2000.

The Joint Contractual Plan has stated the objectives of the system and characteristics [19]. It stated that the power plant should “mainly operate in peak-load time and continuously during high water”. At low flow “a minimum of 50 m³/s water is provided for the old Danube besides the water supply of the branch system”. Finally according to the Art. 7.7 of the Plan: “The common operational regulation stipulates that concerning the operation of the Dunakiliti barrage in the event of need during the growing season 200 m³/s discharge must be released into the old Danube bed, in addition to the occasional possibilities for rinsing the bed”.

In the material handed over by the Hungarian Party is of importance also explicitly defined environmental minimum flow in the Danube bed stated at 400 m³/s. Slovak Party accepts the expert Hungarian opinion that flow 400m³/s in the old Danube bed between Čunovo and Sap is in vegetation period environmental minimum which can be decreased in winter non vegetation period. It is also possible to agree that for naturally low winter water levels it is sufficient to let into branch systems 20 m³/s and some 20 to 40 m³/s in the old Danube bed in the case of realization of some measures for example by correctly constructed underwater weirs.

Slovak party is aware that Dunakiliti dam can be withdrawn from operation and that must not participate at water regime management, but recommends the Hungarian Party (in sense of Para. [136] of I.C.J. Judgement) to check by their experts the future steps because this construction besides other tasks can be used for all kinds of navigation, water supply, flood control, ice-discharge, detailed water level regulation at interconnection with Hungarian branch system - open banks, and also for other technical tasks as structure repair after floods, etc., including cultural, sports and social activities. Because solution of the old Danube bed according to the 1977 Treaty belongs to the Hungarian Party, Slovak Party is willing to accept the solution without Dunakiliti dam in the case the Hungarian Party will propose such solution and will in reasonable extent use existing constructions.

International sports navigation and small ships navigation is in regional and state interest of Hungary. It is not directly the objective of Treaty 1977, but Slovak Party is interested, that these regional and state interests will be implemented in cooperation with Slovak Party and interconnected to existing constructions at Slovak side, specifically lock at Čunovo giving opportunity also for the big ships to come to Dunakiliti, and to use tourist, water sports and cultural objects at Čunovo.

Slovak Party recommends to define mutually what flow shall be supported in the old Danube bed. Water work is projected for 1000 years water flow (occurred in 1501 in amount approximately 15 000 m³/s in Vienna). Slovak Party is of the opinion that the old Danube riverbed shall be prepared to discharge 10 600 m³/s, and according to the newest research of Slovak Academy of Science and flood experience in Europe even more.

Čunovo structures were projected from environmental point of view in such a way that the water level under the power plant could achieve 125 meters above sea level. This level fulfils also all Hungarian considerations about water level between Čunovo and Dunakiliti.

That’s why the Slovak Party basing on Hungarian materials proposes following principles and approach:

Principles:

• To supply with water branch systems on both sides of the Danube.

• To increase ground water level to the required level by increase of water level in the old Danube bed, for example, as proposed by the Hungarian Party between Čunovo and Dunakiliti (see material of the “Office of the Chairman of the Hungarian republic Government …” from November 1999, [chapter 3-A-I/2.1-1]), so the Danube water will be interconnected with water in branches.

• To supply the old Danube bed downstream Čunovo by flowing water in vegetation period at least by amount defined in Hungarian materials as ecological minimum 400 m³/s, and by lower amount in non-vegetation period.

 Approach:

• To state jointly flood discharge through the old Danube bed, for example at 10 600 m³/s, for which all other works shall be projected, including the old Danube riverbed maintenance, the flooded area in inundation, and flood protection measures.

• To decide about navigation possibility of part between Čunovo and Dunakiliti.

• To decide about navigation parameters between Dunakiliti – Sap.

• To decide about way of interconnection of branch system between old Danube bed downstream Dunakiliti.

• To decide about the way of implementation between all possible solutions not only about narrowing and filling the river bed by gravel and changing Danube to meandering river between Slovak and Hungarian branch system.

Both selected proposals of the Hungarian Party, whether solution with filling the riverbed with gravel (requiring 11million m³ of gravel to be put in 30 km long stretch of the Danube, that means, somewhere it will have to be extracted outside Danube, transported by trucks and long term putting it in the river can be hardly considered as hygienic and environmental friendly for the Danube and for the excavation place), nor the solution with meandering (requiring dam construction at several places from 70 thousand m³ stone blocks, which also will have to be mined somewhere, transported, and set to place) is considered by Slovak Party as non environmental friendly, costly, and not allowing proper flood protection mainly of Szigetkőz area and three Slovak villages.

Slovak Party proposes to go on with work in the old Danube bed in such a way, that we will quickly, without unnecessary prolongation and with small investments achieve water level increase in the Danube under Dunakiliti and thus to create opportunities of multiple interconnection between the branches on Hungarian and Slovak side and Danube. As the first step we propose one or two overflowed (underwater) weirs in the Danube downstream Dunakiliti barrage what will ensure branch interconnection with the Danube. We propose to monitor result of this work and on the base of such monitoring to propose future approach. Underwater weirs and interconnection with the branches should be at such places that the possibility of creation of meandering river (Hungarian proposal) or other proposals could be studied.

VI. Conclusion

This opinion of Slovak Governmental Delegation has the objective to convince Hungarian Party in sense of Para. 155 (2) B of the International Court of Justice Judgement that we must negotiate without preconditions and in good faith about every proposal of the one or the other Party. Treaty objectives fulfilment is highly expert problem. Without expert evaluation of individual proposals considering the whole part of the Danube from Bratislava to Budapest, as we have agreed on the plenary session of Governmental Delegations, we can not come to formulation of changes of the Joint Contractual Plan in the framework of the 1977 Treaty, which means also to come to Agreement on the Judgement implementation.