Gabcikovoo-Nagymaros Project

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Citation. I.C.J., 1997 I.C.J. 7

Brief Fact Summary. Hungary stated that it was justified in abandoning and suspending works by siting “a state of necessity” as the basis of its claim that it was no longer bound to the treaty it had entered into with Czechoslovakia.

Synopsis of Rule of Law. If a state of necessity is occasioned by an essential interest of the state authoring the act conflicting with its international obligations, then a state of necessity can be invoked, that interest was threatened by a grave and imminent peril, the act being challenged is the only means of safeguarding that interest, the act challenged must not have seriously impaired an essential interest of the state toward which the obligation existed, and the state that authored the act must not have contributed to the state of necessity.

Facts. A treaty for the construction and operation of a system of locks on the Danube River was entered into by Hungary and Czechoslovakia. Work started but was not completed. While Czechoslovakia divided into two separate states, Hungary too under significant change in government. After a period of time, Hungary gave notice of the termination of the treaty. Due to the change in circumstances, Hungary and Slovakia petitioned the I.C.J. to decide whether Hungary was entitled to suspend and abandon its operations. Slovakia on its part contended that it was entitled to implement a significant variation from the original plan in response to Hungary’s repudiation of the treaty.

Issue. Can a state of necessity only be invoked if it is occasioned by an essential interest of the state authoring the act conflicting with its international obligations, that interest was threatened by a grave and imminent peril, the act being challenged is the only means of safeguarding that interest, the act challenged must not have seriously impaired an essential interest of the state toward which the obligation existed, and the state that authored the act must not have contributed to the state of necessity?

Held. Yes. if a state of necessity is occasioned by an essential interest of the state authoring the act conflicting with its international obligations, then a state of necessity can be invoked, that interest was threatened by a grave and imminent peril, the act being challenged is the only means of safeguarding that interest, the act challenged must not have seriously impaired an essential interest of the state toward which the obligation existed, and the state that authored the act must not have contributed to the state of necessity.
The perils which Hungary sought to base its claim on were neither sufficiently established nor imminent: Hungary had available means of responding to the perceived dangers other than suspension and abandonment of the works.

Discussion. Hungary’s argument here on the imminency of the perceived peril was floored. While guarding the “ecological balance” had been interpreted to constitute an “essential interest”, “imminency” of the peril was interpreted as necessarily being “a threat to the interest at the actual time” even if the peril were to take place at some time in the future. The dangers here can therefore not be said to be imminent but “some far-off time” and were too “uncertain” to invoke the jurisdiction.