Crawford provides us with an accurate description of the rationale behind state responsibility:
"State
responsibility results from the general legal personality of States
under international law and the fact that States are principal bearers
of international obligations".
As Crawford continues,
"What amounts to a breach of international law by a State depends on the
actual content of that State's obligations , and this varies from one
State to the next". Of importance is the remark that "..the underlying
concepts of State responsibility- attribution, breach, excuses and
consequences- are general in character". Would you like to read this
full article, a copy is available from the Max Planck Institute/ Oxford
PIL.
Two of the mentioned underlying concepts or basic
principles of state responsibility are that states can be held
responsible for acts that are attributable to them and that states can
be held responsible for internationally wrongful acts.
1. Internationally wrongful acts
According
to Art. 2 of the Articles on the Resonsibility of States for
Internationally Wrongful Acts (ILC, some prefer to use the abbreviation
ASR or A on RS), there is an internationally wrongful act of a State
when conduct consisting of an action or omission:
a. is attributable to the State under international law and;
b. constitutes a breach of an international obligation of the State.
1.1. Breach of obligations
There
is a breach of an international obligation by a State, when an act of
that State is not in conformity with what is required of it by that
obligation, regardless of the origin of its character (art. 12 ILC).
1.2. Attribution of conduct to a State: overview of the most important cases
a. Organs of a State (art. 4 ILC)
The
conduct of any State organ shall be considered an act of that State
under international law, whether the organ exercises legislative,
executive, judicial or any other functions;
b. Persons or entities exercising elements of governmental authority (art. 5 ILC)
The
conduct of a person or entity, not being an organ of the State under
article 4 but which is empowered by the law of that State to exercise
elements of governmental authority shall be considered an act of the
State, provided that the person/ entity is acting in that capacity;
c. Ultra vires (art. 7 ILC)
A
State can be held responsible for excess of authority or contravention
of instructions by organs of the State or persons/ entities empowered to
exercise elements of governmental authority;
d. Conduct directed or controlled by a State (art. 8 ILC)
If
a person or group of persons is in fact acting on the instructions of,
or under the direction or control of that State in carrying out the
conduct, the conduct shall be considered an act of that State;
e. Conduct of an Insurrectional or other movement (art. 10 ILC)
The
conduct of an inssurectional movement which becomes the new government
of a State, shall be considered an act of that State. Shall the
insurractional movement succeed in establishing a new State in part of
the territory, the conduct of that movement shall be considered an act
of the new State under international law;
f. Conduct acknowledged and adopted by a State as its own (art. 11 ILC)
Conduct
which is not attributable to a State under the preceding articles,
shall nevertheless be considered an act of that State, if and to the
extent that the State acknowledges and adopts the conduct in question as
its own.
2. International law cases on attribution of conduct to States
2.1. United States Diplomatic and Consular Staff Judgment and Merits of 24 May 1980
The
Court made it clear that the detention of internationally protected
persons cannot be considered as something "secondary" or "marginal",
having regard to the principles involved (para 36).
The
facts, set out earlier in the judgment, have to be looked at by the
Court from two points of view. First, it must determine how far,
legally, the acts in question may be regarded as imputable to the State.
Secondly, it must consider their compatibility or incompatibility with
the obligations under treaties in force, or any other rules of
international law that may be applicable. The events fall into two
phases (para 56).
With regards to the first phase, no
suggestion had been made that the militants, when they executed their
attack, had any form of official status as recognized "agents" or organs
of the State. Their conduct cannot, therefore, be regarded as imputable
to the State on that basis. The information does not suffice to
establish the existence at that time, of such a link between the
militants and any competent organ of the State (para 58).
Other subsequent statements of approval, though highly significant in
another context shortly to be considered, do not alter the initially
independent and unofficial character of the attack (para 59).
The conclusion just reached by the Court, that the attack cannot be
considered as in itself imputable to the State, does not mean that the
State is in fact free of any responsibility, for its own conduct was in
conflict with its international obligations- by a number of provisions
under the Vienna Convention of 1961 and 1963, the State was placed under
the most categorical obligations as a receiving State, to take
appropriate steps to ensure protection (para 61).
Thus, after
solemny proclaiming the inviolability of the premises of a diplomatic
mission, Art. 22 of the 1962 Convention continues: "The receiving State
is under a special duty to take all appropriate steps to protect [..] ".
In the view of the Court, the obligations here in question are not
merely contractual obligations, but also obligations under general
international law (para 62).
This inaction by itself
constituted clear and serious violation of the obligations under a
number of provisions (para 66, 67). The Court is therefore led to
conclude, in regard to the first phase, that the authorities:
a.
were fully aware of their obligations; b. were fully aware of the urgent
need for action on their part; c. had the means at their disposal to
perform their obligations; d. completely failed to comply with these
obligations (para 68).
The second phase of the events
comprises the whole series of facts with followed during the completion.
The action required of the Government by the Vienna Convention and by
general international law, was manifest. Its plain duty was at once to
make every effort [...] (para 69).
The seal of official
government approval was finally set by a decree (para 73). The result of
that policy was fundamentally to transform the legal nature of the
situation. The approval given by organs of the State and the decision to
perpetuate the mentioned facts, translated the acts into acts of that
State. The authors of the invasion had now become agents of the State,
for whose acts the State itself was internationally responsible (para
74).
What is more to say (M.B.): in the present case, the
Government did not break off diplomatic relations. At no time before the
events had the Government declared or indicated any intention to
declare, any member of the diplomatic staff persona non grata. The
Government did not, therefore, employ the remedies placed at its
disposal. The receiving State may at any time and without having to
explain its decision, notify the sending State that any particular
member of its mission is persona non grata (para 87, 85).
2.2. Military and paramilitary activities in and against Nicaragua, Judgment of 27 June 1986
The Court provides a very strict criterion to decide whether the US
could be held responsible for military and paramilitary operations in
the course of which the alleged violations were commited. For this
conduct to give rise to legal responsibility, it would in principle have
to be proved that that State had effective control (para 115).
In the view of the Court, while the arming and training of the contras
can certainly be said to involve the threat or use of force, this is not
necessarily so in respect of all the assistance given by the US. The
mere supply of funds does not in itself amount to a use of force (para
202).
2.3. Dusko Tadić , ICTY Appeals Chamber, 15 July 1999
The strict "effective control" test is a far cry from the test as
formulated in the Dusko Tadić case. The ICTY applied the test of
"overall control": for the attribution to a State of acts of [mentioned]
groups, it is sufficient to require that the group as a whole be under
the overall control of the State. If an organised group is under the
overall control of a State, it must perforce to engage the
responsibility of that State for its activities, whether or not each of
them was specifically imposed, requested or directed by the State. The
Youmans case with regard to State responsibility for acts of State
military officials should hold true for acts of organised groups over
which a State exercises overall control (paras. 120-123).
The
Appeals Chamber adds: "The degree of control may, however, vary
according to the factual circumstances of each case. The Appeals Chamber
fails to see why in each and every circumstance international law
should require a high threshold for the test of control". In para 132
the AC considers that "In order to attribute the acts of a military or
paramilitary group to a State, it must be proved that the State wields
overall control over the group [..]. However, it is not necessary that,
in addition, the State should also issue, either to the head or to
members of the group, instructions for the commission of specific acts
contrary to international law".
2.3.1. Difference in outcome Nicaragua and Tadic: fragmentation and proliferation
The
difference in outcome between the Nicaragua and Tadić is best explained
as a divergence between the ICJ and ICTY. According to Benedict Kingsbury, on one hand the phenomenon of fragmentation of international law,
is the result of uncoordinated and functional development of regimes in
international law, meaning that different regimes have developed from a
focus on "problem-solving" within the scope of a certain regime- a good
example is environmental law. Functional necessity, therefore,
undermines the coordinated development of regimes in international law.
On the other hand, proliferation refers to the uncoordinated rise of judicial bodies,
with the diversification of international law underlying the
establishment of numberous and different courts, not only for specific
topics, but also regional. The "overall control" test, developed by the
ICTY, is not in conformity with the previous "effective control" test,
applied by the ICJ. To address this divergence, it is the proliferation
of the ICJ and ICTY that leads to further fragmentation in the
interpretation of public international law.
2.4. Bosnia and Herzegovina vs. Serbia and Montenegro Genocide Judgment of 2007
In response to the Tadić doctrine as was adopted by the ICTY, the Court
notes that the "overall control" test has the major drawback of
broadening the scope of State responsibility well beyong the fundamental
principle governing the law of international responsibility (that is, a
State's responsibility can be incurred for acts commited by persons or
groups only if, assuming those acts are internationally wrongful, they
are attributable to it under the rule of customary international law,
reflected in Article 8 of the ILC Articles on State Responsibility.
In this regard, the "overall control" test is unsuitable, for it
stretches too far, almost to a breaking point, the connections which
must exist between the conduct of a State's organs and its international
responsibility (para 404, 406).
3. Conclusion
In the Diplomatic Staff case of 1980, there was a breach of obligations
and certain provisions were violated. The receiving State had previously
agreed upon a special duty to take all appropriate steps to protect the
diplomatic staff, yet failed to do so in the first phase. In the second
phase, it became clear that the approval, given by the authorities, had
transformed acts by individuals into acts of the State. In legal terms,
Article 11 of the ILC Articles on State Responsibility is applicable to
this case: the conduct, which was originally not attributable to the
State, shall be considered an act of the State because of the
acknowledgement of the conduct by the State in question.
The Tadić case shoves the 1986 Nicaragua "effective control" test aside
and replaces it with an "overall control" test. According to the Court
in the Srebrenica Genocide Judgment of 2007, the
"Tadić doctrine" is unsuitable, for it stretches too far the connections
between the conduct of a State's organs and its responsibility. That
means, the causality between the act of an indidiual, group or organ and
the responsibility of the State for an internationally wrongful act, is
too distant.
4. Circumstances precluding wrongfulness
a. Consent (art. 20 ILC/ ASR)
It goes without saying, that no internationally wrongful act can exist as long as another State has given valid consent;
b. Self-defence (art. 21 ILC/ ASR)
The wrongfulness is precluded if an act of self-defence is in conformity
with art. 2(4) of the UN Charter, which means that the State should
refrain from threat of force;
c. Countermeasures in respect of an internationally wrongful act (art. 22 ILC/ ASR).
The countermeasures should be in accordance with articles 49 to 54 of
the ILC on State Responsibility. Note that proportionality is an
essential criterion;
d. Force majeure (art. 23 ILC)
The wrongfulness of an act of a State, not in conformity with its
obligations, is precluded if the act is due to the occurence of an
irresistible force or an unforseen event, beyond the control of the
State, making it impossible to perform the obligations. Take note of the
provisions in paragraph 2 (a)(b);
e. Distress (art. 24 ILC)
Distress differs from force majeure, in this sense that the author of
the act has had no other reasonable way of saving lives, but mind
paragraph 2 (a)(b);
f. Necessity (art. 25 ILC)
As was clear from the Gabcikovo case, necessity may be invoked to preclude the wrongfulness of an act, if:
a. the act was the only way to safeguard an essential interest against a grave and imminent peril;
b. does not seriously impair an essential interest of the State toward which the obligation exists.
5. Legal consequences of an internationally wrongful act
As the General principles show, the legal consequences of an
internationally wrongful act do not affect the continued duty of the
responsible State to perform the obligation breached (art. 29 ILC of the
ASR). The State is under an obligation of cessation and non-repetition
(art. 30 ILC). Also, the responsible State is obliged to make full
reparation for the injury caused by the wrongful act (arr. 31 ILC).
5.1. Reparation for injury
a. Restitution (art. 35 ILC of ASR)
A State can be held responsible to make restitution, provided and to the
extent that restitution is not materially impossible and does not
involve a burden out of all proportion to the benefit deriving from
restitution instead of compensation;
b. Compensation (art. 36 ILC)
Insofar damage is not made good by restitution, the responsible State is
under an obligation to compensate for the damage caused by an
internationally wrongful act. The compensation shall cover any financial
damage, including loss of profits;
c. Satisfaction (art. 37 ILC)
Insofar the injury cannot be made good by restitution or compensation,
the responsible State is under an obligation to give satisfaction, which
may (para 2) consist in an acknowledgement of the breach, an expression
of regret, a formal apology or another appropriate modality.
Satisfaction shall not be out of proportion to the injury and may not
take a form humiliating to the responsible State.
As the lives of two jailers in the LaGrand case could not be recovered,
the responsible State was obliged to give a combination of compensation
and satisfaction. In the Gabcikovo case, both parties could be held
responsible for the injuries caused and therefore, both States could
claim compensation. In the Chorzów factory case, both restitution and
compensation are expressly mentioned as classic forms of reparation for
injuries. One form of reparation doesn't set the other possible form
aside, as the LaGrand case shows.
Thus, assuming that there is an internationally wrongful act, (1) when
conduct consisting of an action or omission (2) is attributable to a
State and (3) constitutes a breach of an obligation of that State, that
State is, under any circumstances:
a. always obliged to continue the performance of the duty of the obligation breached;
b. obliged to cessation and non-repetition;
c. obliged to make full reparation, consisting of either restitution,
compensation or satisfaction, or a combination of forms of reparation
for injuries.
Posts tonen met het label Court. Alle posts tonen
Posts tonen met het label Court. Alle posts tonen
zaterdag 25 februari 2017
An extensive reading of the lawful termination of treaties and the Gabčíkovo-Nagymaros case
The Vienna Convention contains general provisions on suspension and
termination of treaties, in particular Articles 54 to 62 VCLT.
Before I am going to discuss the infamous Gabčíkovo-Nagymaros (pronunciation: Gab-chi-co-vah/ Nagee-marosh) case, I will first make a disctinction between formal and substantive grounds for termination or suspension of a treaty.
1.1. Formal grounds for termination or suspension of a treaty
The formal grounds for termination of treaties is provided by articles 54 to 59 VCLT. These include termination in conformity with the provisions of the treaty and termination by consent of all the parties after consultation (art. 54) and termination or suspension of the operation of the treaty implied by conclusion of a later treaty (art. 59).
1.2. Material grounds for termination
Articles 60 to 62 VCLT provide the substantive or material grounds for termination or suspension of a treaty. The ICJ affirms that the rules laid down by the Vienna Convention on the Law of Treaties concerning termination of a treaty relationship on account of breach, may in many respects be considered as a codification of existing customary law on the subject (see the Namibia Advisory Opinion of 1971, p. 47).
Note that articles 60-62 VCLT provide three options to justify unilateral termination of a treaty:
1. inadimplenti non est adimplendum;
2. force majeure;
3. rebus sic stantibus;
The first one being the actual "material breach" by the other contracting party.
2. Material grounds for termination or suspension of a treaty and Gabčíkovo-Nagymaros Does Hungary's termination of the 1977 Treaty between Hungary and Czechoslovakia, meet the requirements under Article 60 to 62 VCLT? This is the main question in the G-N case, for Hungary invokes no less than five grounds in an attempt to justify its unilateral termination of the Treaty.
These grounds are, in no particular order: a state of necessity, material breach of the treaty by Czechoslovakia, impossibility of performance of the treaty, a fundamental change of circumstances and the development of new norms of international environmental law. Before I am going to discuss the state of necessity, I will highlight the three material grounds that are covered by art. 60-62 VCLT.
2.1. Inadimplenti non est adimplendum (art. 60 VCLT)
A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating or suspending the treaty, art. 60 (1). A material breach is, as follows from
art. 60(3)(a)(b):
a. a repudiation of the treaty not sanctioned by the present Convention;
b. the violation of a provision essential to the accomplishment of the object or purpose of the treaty.
In the Gabĉikovo-Nagymaros case, the Court has to decide on whether Hungary's invocation of material breach by Czechoslovakia is justified:
It is up to the Court to decide, whether there has been a material breach, rather than just a grave breach:
The Court is of the view that it is only a material breach of the treaty itself, by a State party to the treaty, which entitles the other party to rely on it as a ground for terminating the treaty. The violation of other treaty rules of general international law may justify the taking of certain [counter]measures by the injured State, but it does not constitute a ground for termination under the law of treaties (para 106);
Hungary, by its own conduct, had prejudiced its right to terminate the Treaty; this would still have been the case even if Czechoslovakia, by the time of the purported termination, had violated a provision essential to the accomplishment of the object and purpose of the Treaty (para 110).
The material breach must have taken place in order to justly invoke such breach:
Hungary's main argument for invoking a material breach of the Treaty was the construction and putting into operation of Variant C [by Czechoslovakia]. As the Court has found, Czechoslovakia violated the Treaty only when it diverted the waters [...]. Czechoslovakia did not act unlawfully in constructing the works that would lead to the putting into operation of Variant C.
In the Court's view, the notification of termination by Hungary was premature. No breach of the Treaty had yet taken place and Hungary was, therefore, not entitled to invoke such breach as a ground for termination (para 108).
Czechoslovakia has breached its treaty obligations, but only when putting Variant C into operation (para 78 and 82). The preparations on the territory of Czechoslovakia had not yet led to a material breach, therefore, Hungary's invocation of a material breach by Czech. was premature. Thus, the Court rejects the invocation of material breach/ inadimplenti by Hungary.
2.2 Supervening impossibility of performance (art. 61 VCLT) (force majeure/ Act of God)
As described by Article 61 VCLT, a party may invoke the impossibility of performance as a ground for termination of a treaty, if the impossibility results from the permanent disappearance or destruction of an object, indispensable for the execution of the treaty. A temporary impossibility is not sufficient for termination of the treaty. If the impossibility of performance results from that party's own breach, the ground of supervening impossibility may not be invoked (art. 61 (2) VCLT). Judging the G-N case, this means that Hungary was not entitled to invoke Article 61 para 1 VCLT, for the impossibility of performance stems from Hungary's own "omission" (para 102-103). In other words, this ground implies a mere "Act of God".
2.3. Rebus sic stantibus: fundamental change of circumstances (art. 62 VCLT)
A fundamental change of circumstances with regard to those existing at the time of the conclusion of the treaty, which was completely unforeseen by the parties, may not be invoked, para 1, unless:
a. the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty;
b. the effect of the change is radically to transform the extent of obligations still to be performed.
You'll have noticed the essential grounds for invoking a fundamental change of circumstances: the circumstances have to be fundamentally different, compared to the original circumstances at the time of the conclusion, and the change itself has to be completely unforeseen by either of the parties. Minor changes that do not relate to the consent to be bound or to the obligations to be performed, cannot justify the invocation of a fundamental change. A de facto material breach may be invoked.
In G-N, the Court recalls the Fisheries Jurisdiction case on Article 62 of the VCLT. As Hungary argued, the events which would have constituted a fundamental change, were specified as profound changes of a political nature, the Project's diminishing economic viability, the progress of environmental knowledge and new norms of environmental law.
In the Court's view, the prevalent political conditions were thus not so closely linked to the object and purpose of the Treaty, that they constituted an essential basis for the consent of parties and, in changing, radically altered the extent of obligations still to be performed. The profitablity of the Project was not bound to such an extent that the obligations of the parties would have radically transformed as a result. The development of environmental knowlegde and law cannot be said to have been completely unforeseen. The changed circumstances advanced by Hungary are not of such a nature, that their effect would radically transform the extent of the obligations to accompish Project G-N. Article 62 of the VCLT is a clear indication that the plea can only apply in exceptional cases (para 104).
3. State of necessity (art. 33 (now: 25) of the Draft Articles on State Responsibility)
Not under the scope of the VCLT, but under the scope of the International Responsibility of States, the Court will consider the question of whether there was a state of necessity which would have permitted Hungary to suspend and abandon works that it was commited to perform in accordance with the Treaty.
A state of necessity may be invoked if:
a. the act was the only means of safeguarding an essential interest of the State against a grave and imminent peril;
b. the act did not seriously impair an essential interest of the State towards which the obligation existed.
In the G-N case, the Court considers, first of all, that the state of necessity is a ground, recognized by customary internationa law for precluding the wrongfulness of an act not in conformity with an international obligation. Such ground can only be accepted on an exceptional basis. The state of necessity can only be invoked under certain strictly defined conditions which must be cumulatively satisfied. The State concerned is not the sole judge of whether those conditions have been met (para 51-52).
The Commission indicated that one should not, in [..] context, reduce an "essential interest" to a matter only of the "existence" of the State and that the whole case has to be judged in the light of the particular case (para 53) (i.o. words: the existence has to be objective) .
However serious the uncertainties might have been, they could not, alone, establish the objective existence of a "peril" in the sense of a component element of a state of necessity. The mere apprehension of a possible peril could not suffice. The extremely grave and imminent peril must have been a threat to the interest at the actual time (para 54).
Considering the situation at Nagymaros (Hungary), the Court notes that the dangers were mostly of a long-term nature and, above all, that they remained uncertain. The peril invoked by Hungary had already materialized to a large extent for a number of years, so that it could not, in 1989, represent a peril arising entirely out of the G-N Project. Even if the construction of the G-N Project would have created serious risks, Hungary had means available to it, other than suspension and abandonment of the works, of responding to that situation (para 55).
However grave it might have been, it would accordingly have been difficult to see the alleged peril as sufficiently certain and therefore "imminent" in 1989 . Hungary should have resorted to other means in order to respond to the dangers that it apprehended. In particular, within the framework of the original Project, Hungary seemed to be in position to control (para 56).
At the time of concluding the Treaty, Hungary was presumably aware of the situation as then known, when it assumed its original obligations. The Court cannot fail to note the positions taken by Hungary after the entry into force of the 1977 Treaty. Hungary asked that the works should go forward more slowly, then asked for the works to be speeded up, only to suspend and abandon them three months later.
The conclusion is that Hungary would not have been permitted to rely upon the 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 (para 57).
Before I am going to discuss the infamous Gabčíkovo-Nagymaros (pronunciation: Gab-chi-co-vah/ Nagee-marosh) case, I will first make a disctinction between formal and substantive grounds for termination or suspension of a treaty.
1.1. Formal grounds for termination or suspension of a treaty
The formal grounds for termination of treaties is provided by articles 54 to 59 VCLT. These include termination in conformity with the provisions of the treaty and termination by consent of all the parties after consultation (art. 54) and termination or suspension of the operation of the treaty implied by conclusion of a later treaty (art. 59).
1.2. Material grounds for termination
Articles 60 to 62 VCLT provide the substantive or material grounds for termination or suspension of a treaty. The ICJ affirms that the rules laid down by the Vienna Convention on the Law of Treaties concerning termination of a treaty relationship on account of breach, may in many respects be considered as a codification of existing customary law on the subject (see the Namibia Advisory Opinion of 1971, p. 47).
Note that articles 60-62 VCLT provide three options to justify unilateral termination of a treaty:
1. inadimplenti non est adimplendum;
2. force majeure;
3. rebus sic stantibus;
The first one being the actual "material breach" by the other contracting party.
2. Material grounds for termination or suspension of a treaty and Gabčíkovo-Nagymaros Does Hungary's termination of the 1977 Treaty between Hungary and Czechoslovakia, meet the requirements under Article 60 to 62 VCLT? This is the main question in the G-N case, for Hungary invokes no less than five grounds in an attempt to justify its unilateral termination of the Treaty.
These grounds are, in no particular order: a state of necessity, material breach of the treaty by Czechoslovakia, impossibility of performance of the treaty, a fundamental change of circumstances and the development of new norms of international environmental law. Before I am going to discuss the state of necessity, I will highlight the three material grounds that are covered by art. 60-62 VCLT.
2.1. Inadimplenti non est adimplendum (art. 60 VCLT)
A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating or suspending the treaty, art. 60 (1). A material breach is, as follows from
art. 60(3)(a)(b):
a. a repudiation of the treaty not sanctioned by the present Convention;
b. the violation of a provision essential to the accomplishment of the object or purpose of the treaty.
In the Gabĉikovo-Nagymaros case, the Court has to decide on whether Hungary's invocation of material breach by Czechoslovakia is justified:
It is up to the Court to decide, whether there has been a material breach, rather than just a grave breach:
The Court is of the view that it is only a material breach of the treaty itself, by a State party to the treaty, which entitles the other party to rely on it as a ground for terminating the treaty. The violation of other treaty rules of general international law may justify the taking of certain [counter]measures by the injured State, but it does not constitute a ground for termination under the law of treaties (para 106);
Hungary, by its own conduct, had prejudiced its right to terminate the Treaty; this would still have been the case even if Czechoslovakia, by the time of the purported termination, had violated a provision essential to the accomplishment of the object and purpose of the Treaty (para 110).
The material breach must have taken place in order to justly invoke such breach:
Hungary's main argument for invoking a material breach of the Treaty was the construction and putting into operation of Variant C [by Czechoslovakia]. As the Court has found, Czechoslovakia violated the Treaty only when it diverted the waters [...]. Czechoslovakia did not act unlawfully in constructing the works that would lead to the putting into operation of Variant C.
In the Court's view, the notification of termination by Hungary was premature. No breach of the Treaty had yet taken place and Hungary was, therefore, not entitled to invoke such breach as a ground for termination (para 108).
Czechoslovakia has breached its treaty obligations, but only when putting Variant C into operation (para 78 and 82). The preparations on the territory of Czechoslovakia had not yet led to a material breach, therefore, Hungary's invocation of a material breach by Czech. was premature. Thus, the Court rejects the invocation of material breach/ inadimplenti by Hungary.
2.2 Supervening impossibility of performance (art. 61 VCLT) (force majeure/ Act of God)
As described by Article 61 VCLT, a party may invoke the impossibility of performance as a ground for termination of a treaty, if the impossibility results from the permanent disappearance or destruction of an object, indispensable for the execution of the treaty. A temporary impossibility is not sufficient for termination of the treaty. If the impossibility of performance results from that party's own breach, the ground of supervening impossibility may not be invoked (art. 61 (2) VCLT). Judging the G-N case, this means that Hungary was not entitled to invoke Article 61 para 1 VCLT, for the impossibility of performance stems from Hungary's own "omission" (para 102-103). In other words, this ground implies a mere "Act of God".
2.3. Rebus sic stantibus: fundamental change of circumstances (art. 62 VCLT)
A fundamental change of circumstances with regard to those existing at the time of the conclusion of the treaty, which was completely unforeseen by the parties, may not be invoked, para 1, unless:
a. the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty;
b. the effect of the change is radically to transform the extent of obligations still to be performed.
You'll have noticed the essential grounds for invoking a fundamental change of circumstances: the circumstances have to be fundamentally different, compared to the original circumstances at the time of the conclusion, and the change itself has to be completely unforeseen by either of the parties. Minor changes that do not relate to the consent to be bound or to the obligations to be performed, cannot justify the invocation of a fundamental change. A de facto material breach may be invoked.
In G-N, the Court recalls the Fisheries Jurisdiction case on Article 62 of the VCLT. As Hungary argued, the events which would have constituted a fundamental change, were specified as profound changes of a political nature, the Project's diminishing economic viability, the progress of environmental knowledge and new norms of environmental law.
In the Court's view, the prevalent political conditions were thus not so closely linked to the object and purpose of the Treaty, that they constituted an essential basis for the consent of parties and, in changing, radically altered the extent of obligations still to be performed. The profitablity of the Project was not bound to such an extent that the obligations of the parties would have radically transformed as a result. The development of environmental knowlegde and law cannot be said to have been completely unforeseen. The changed circumstances advanced by Hungary are not of such a nature, that their effect would radically transform the extent of the obligations to accompish Project G-N. Article 62 of the VCLT is a clear indication that the plea can only apply in exceptional cases (para 104).
3. State of necessity (art. 33 (now: 25) of the Draft Articles on State Responsibility)
Not under the scope of the VCLT, but under the scope of the International Responsibility of States, the Court will consider the question of whether there was a state of necessity which would have permitted Hungary to suspend and abandon works that it was commited to perform in accordance with the Treaty.
A state of necessity may be invoked if:
a. the act was the only means of safeguarding an essential interest of the State against a grave and imminent peril;
b. the act did not seriously impair an essential interest of the State towards which the obligation existed.
In the G-N case, the Court considers, first of all, that the state of necessity is a ground, recognized by customary internationa law for precluding the wrongfulness of an act not in conformity with an international obligation. Such ground can only be accepted on an exceptional basis. The state of necessity can only be invoked under certain strictly defined conditions which must be cumulatively satisfied. The State concerned is not the sole judge of whether those conditions have been met (para 51-52).
The Commission indicated that one should not, in [..] context, reduce an "essential interest" to a matter only of the "existence" of the State and that the whole case has to be judged in the light of the particular case (para 53) (i.o. words: the existence has to be objective) .
However serious the uncertainties might have been, they could not, alone, establish the objective existence of a "peril" in the sense of a component element of a state of necessity. The mere apprehension of a possible peril could not suffice. The extremely grave and imminent peril must have been a threat to the interest at the actual time (para 54).
Considering the situation at Nagymaros (Hungary), the Court notes that the dangers were mostly of a long-term nature and, above all, that they remained uncertain. The peril invoked by Hungary had already materialized to a large extent for a number of years, so that it could not, in 1989, represent a peril arising entirely out of the G-N Project. Even if the construction of the G-N Project would have created serious risks, Hungary had means available to it, other than suspension and abandonment of the works, of responding to that situation (para 55).
However grave it might have been, it would accordingly have been difficult to see the alleged peril as sufficiently certain and therefore "imminent" in 1989 . Hungary should have resorted to other means in order to respond to the dangers that it apprehended. In particular, within the framework of the original Project, Hungary seemed to be in position to control (para 56).
At the time of concluding the Treaty, Hungary was presumably aware of the situation as then known, when it assumed its original obligations. The Court cannot fail to note the positions taken by Hungary after the entry into force of the 1977 Treaty. Hungary asked that the works should go forward more slowly, then asked for the works to be speeded up, only to suspend and abandon them three months later.
The conclusion is that Hungary would not have been permitted to rely upon the 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 (para 57).
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