1Gabčíkovo-Nagymaros Project, Hungary/Slovakia, Judgment of 25

September 1997, ICJ Reports 1997;

FACTS

Hungary and Czechoslovakia, in 1977, concluded a treaty for the building of dam structures
at Gabcikovo in Slovakia and at Nagymaros in Hungary for the production of electric power,
flood control and improvement of navigation on the Danube (the 1977 Treaty). In 1989,
Hungary suspended and subsequently abandoned completion of the project alleging that it
entailed grave risks to the Hungarian environment and the water supply of Budapest.
Slovakia (successor to Czechoslovakia) denied these allegations and insisted that Hungary
carry out its treaty obligations. It planned and subsequently put into operation an alternative
project only on Slovak territory, whose operation had effects on Hungary's access to the
water of the Danube.

RULING:

The International Court of Justice today delivered judgement on a protracted dispute

between Hungary and Slovakia over the construction and operation of dams on the river
Danube which found both States in breach of their legal obligations. It called on both
countries to carry out the relevant treaty between them while taking account of the factual
situation that has developed since 1989.

In its judgement, the Court found: 

that Hungary was not entitled to suspend and subsequently abandon, in 1989, its
part of the works in the dam project, as laid down in the treaty signed in 1977 by
Hungary and Czechoslovakia and related instruments; 

that Czechoslovakia was entitled to start, in November 1991, preparation of an

alternative provisional solution (called "Variant C"), but not to put that solution
into operation in October 1992 as a unilateral measure; 

that Hungary's notification of termination of the 1977 Treaty and related

instruments on 19 May 1992 did not legally terminate them (and that they are
consequently still in force and govern the relationship between the Parties); 

and that Slovakia, as successor to Czechoslovakia became a party to the Treaty

of 1977.

As to the future conduct of the Parties, the Court found: 

 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 1977 Treaty; 

that, unless the Parties agree otherwise, a joint operational regime for the dam
on Slovak territory must be established in accordance with the Treaty of 1977; 

that each Party must compensate the other Party for the damage caused by its
conduct; 

and that the accounts for the construction and operation of the works must be
settled in accordance with the relevant provisions of the 1977 Treaty and its
related instruments. 

TOPIC:

The Court held that newly developed norms of environmental law are relevant for the
implementation of the Treaty and that the Parties could, by agreement, incorporate them
through the application of several of its articles. It found that the Parties, in order to
reconcile economic development with protection of the environment, "should look afresh at
the effects on the environment of the operation of the Gabcikovo 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 of the river".

2. Iron Rhine Railway, Belgium v. The Netherlands, RIAA, Vol. XXVII;

FACTS

The Iron Rhine is a railway linking the port of Antwerp in Belgium to the Rhine basin in Germany
across Dutch territory. Belgium acquired the right of transit over Dutch territory in a treaty from
1839which conferred certain transit rights on Belgium. Following
World War II, parts of the Iron Rhine gradually fell into disuse and
during the 1990s the Netherlands took legal steps to designate
nature reserves that lay across its route. Belgium requested a
reactivation of the railway in 1998. As they failed to come to an understanding in negotiations,
the Netherlands and Belgium decided to submit the case to arbitration. In 2003 they set up an
Arbitral Tribunal under the auspices of the Permanent Court of Arbitration in The Hague.  
The Parties disagreed as to the allocation of costs and risks for works necessary for the
long-term use of the railway. In particular, the Parties disagreed on the interpretation of
Belgium's right of transit under the 1839 Treaty in light of subsequent developments,
including environmental protection measures and the requirements of European law.

The Arbitral Tribunal was called upon to interpret nineteenth century treaties, which granted certain rights to
Belgium on the territory of The Netherlands, and to consider the entitlement of The Netherlands to insist on
conditions specified under Dutch law, particularly with respect to environmental protection, for reactivation of the
railway.

RULING:

The Tribunal ruled that Belgium had an obligation to fund the environmental element of
the overall costs of the reactivation. In relation to those parts of the line where Iron
Rhine trains and Netherlands trains would pass, the Netherlands was obliged to
contribute to the total costs of reactivation, to the extent that those measures
represented particular quantifiable benefits to the Netherlands. The Tribunal applied
these principles to each segment of the proposed line.

The Tribunal declared that neither the Netherlands nor Belgium were to bear the costs
of adaptation and modernization alone. These costs, including those for environmental
measures, are primarily for Belgium to take care of. But Netherlands had an obligation
to pay for the cost items, for which it already offered to pay for during the negotiations,
as well as for any particular quantifiable benefit it derives from the reactivation on the
part of the route which it uses. 

QUESTION3: Par 243 of the ruling

The Tribunal recalls that Belgian obligations other than those associated with
functionality flow from the fact that the requested reactivation represents an economic
development on the territory of the Netherlands, with which the prevention and
minimalisation of environmental harm is to be integrated. The Tribunal has further
found that the costs of environmental protection measures and other safety measures
cannot be severed from the costs necessary for the functionality of the historic route
3 Mox Plant, 3 December 2001, Ireland v. United Kingdom, ITLOS
Reports, 2001;

FACTS:

The MOX plant was located in Sellafield, Cumbria in the Irish Sea. Its objective was to “reprocess
spent nuclear fuel, containing a mixture of plutonium dioxide and uranium dioxide, into a new fuel
which is known as mixed oxide fuel, or MOX” (Press Release 59). After the power plant was installed
and began operating, Ireland quickly became concerned with the safety and protection of their
territory

Distribution of radioactive materials and the pollution of their sea lead the Irish government to file a
formal complaint with the Tribunal. Filed on November 9th, 2001, the article requested that the
United Kingdom “immediately ensure that there are no movement into or out of the waters over
which it has sovereignty or exercises sovereign rights of any radioactive substances or materials or
wastes which are associated with the operation of, or activities preparatory to the operation of the
MOX plant; 

that the United Kingdom ensure that no action of any kind is taken which might aggravate, extend or
render more difficult of solution the dispute submitted to the Annex VII tribunal; and that the United
Kingdom ensure that no action is taken which might prejudice the rights of Ireland in respect of the
carrying out of any decisions on the merits of the Annex VII tribunal may render” (Press Release 59).

These demands were taken to the International court for further deliberation with the members of
various organizations. During these hearings, Ireland “pointed out that the operation of the plant will
contribute to the pollution of the Irish Sea and underlines the potential risks involved in the
transportation of radioactive material to and from the plant” (Press Release 62). Ongoing arguing
between the government officials of Ireland and the United Kingdom forced the Tribunal to reach a
decision in a timely manner. 

RULING:

The court “noted and placed on record the assurances given by the United Kingdom that there will be
no additional marine transports of radioactive material either to or from Sellafield as a result of the
commissioning of the MOX plant until summer of 2002” 

Due to the complexity of the justice system, the Tribunal prescribed a number of provisional
measures which both sides were legally bound to follow. This measures stated, “Ireland and the
United Kingdom shall cooperate and shall, for this purpose, enter into consultations forthwith in
order to: exchange further information with regard to possible consequences for the Irish Sea arising
out of the commissioning of the MOX plant; monitor risks or the effects of the operation of the MOX
plant for the Irish Sea; and devise, as appropriate, measures to prevent pollution of the marine
environment which might result from the operation of the MOX plant” (Press Release 62). While this
was the final order given by the International Tribunal regarding this case, the case was not closed
until 2008. Discussions between the two countries prohibited the end of the trial and allowed the
court to intervene if necessary. On February 15th, 2007, Ireland “Formally withdrew its claim against
the United Kingdom” (Hague Justice Portal). It was not until June 6th, 2008 that the Tribunal legally
dismissed the case and terminated its proceedings. 

4. The Chagos Marine Protected Area Arbitration (Mauritius v. United

Kingdom), Award of 18 March 2015
FACTS:

Mauritius commenced the arbitration before the PCA in 2010 after the United Kingdom
declared an MPA in the waters surrounding the Chagos Archipelago. The Archipelago
has been administered by the United Kingdom as part of the British Indian Ocean
Territory since 1965 and, before then, as a dependency of its then-colony, Mauritius.
Mauritius submitted, among other claims, that the United Kingdom was “not entitled to
declare an MPA or other maritime zones because it is not the ‘coastal State’ for the
purposes of the Convention,” nor could it, given its 1965 commitments to Mauritius,
“unilaterally [] declare an MPA or other maritime zones because Mauritius has rights as a
‘coastal State.’”

The Parties are at odds over the interpretation and application of the various Articles of
the Convention. Mauritius claims that the United King- dom has violated Articles 2(3),
56(2), 194 and 300 in connection with its decla- ration of the MPA on 1 April 2010. In
particular, Mauritius considers that the extinction of its rights in the territorial sea “with
immediate effect, without notice, without consultation” to have been a violation of
Article 2(3).564

Mau- ritius further considers the manner in which the United Kingdom conducted itself
prior to the declaration of the MPA to have violated the United King- dom’s obligation to
accord due regard, pursuant to Article 56(2), to Mauritius’ rights and to endeavour to
harmonize its policies on marine pollution pursu- ant Article 194. The crux of Mauritius’
complaint is that –

The UK did not inform Mauritius of its plans; it provided Mauritius with inaccurate
information; and it ignored Mauritius’ repeated calls for bilateral consultations, insisting
on proceeding instead with a fun- damentally flawed Public Consultation all despite a
commitment by the UK Prime Minister to his Mauritian counterpart that the MPA would
be put on hold.565
Finally, Mauritius submits that the MPA was not actually declared in pursuit of the
environmental objectives that were used to justify it and that its decla- ration constitutes
an abuse of rights within the context of Article 30

According to the United Kingdom, Article 2(3) does not impose an obligation of compliance,
and the meaning of “due regard” in Article 56(2) does not mean to “give effect to” the rights of
other States.566 The United Kingdom similarly disputes that Article 194 imposes a duty with
respect to marine pollution and argues that Article 300 applies only in conjunction with the
violation of anoth- er provision of the Convention. In any event, the United Kingdom considers
the fulsome bilateral exchanges and public consultations regarding the estab- lishment of the
MPA to have satisfied any potentially applicable obligati

RULING:
Permanent Court of Arbitration (PCA) issued its award  unanimously finding the United
Kingdom’s establishment of a marine protected area (MPA) around the Chagos
Archipelago contravened its obligations under the Convention on the Law of the
Sea. 

The PCA interpreted these claims as rooted in a dispute over the sovereignty of
the Archipelago and noted that it did not have jurisdiction over that issue.
However, it held that “in declaring the MPA, the United Kingdom failed to give
due regard to [Mauritius’s] rights and declared that the United Kingdom had
breached its obligations under the Convention.”

The Arbitral Tribunal found that the UK had violated its duties under the 1982 UN
Convention on the Law of the Sea to consult with Mauritius prior to establishing the
Marine Protected Area
The Arbitral Tribunal recognised Mauritius’ reversionary interests in the
Chagos Archipelago. The Tribunal found that the UK was bound under
international law to:
Return the Chagos Archipelago to Mauritius when no longer needed for
defence purposes;
Preserve the benefit of any minerals or oil discovered in or near the Chagos
Archipelago for Mauritius; and
Ensure that fishing rights in the Chagos Archipelago would remain available
to Mauritius as far as practicable

Significance of the March 2015 Arbitral Award:

The Arbitral Tribunal explored the relationship of the obligation to have “due regard” with
other related obligations under the UN Convention on the Law of the Sea:
“[540] The Tribunal considers the requirement that the United Kingdom ‘refrain from
unjustifiable interference’ [in Article 194(4)] to be functionally equivalent to the obligation
to give ‘due regard’, set out in Article 56(2), or the obligation of good faith that follows
from Article 2(3). Like these provisions, Article 194(4) requires a balancing act between
competing rights, based upon an evaluation of the extent of the interference, the
availability of alternatives, and the importance of the rights and policies at issue. Article
194(4) differs, however, in that it facially applies only to the ‘activities carried out by
other States’ pursuant to their rights, rather than to the rights themselves.”

The Tribunal held that it did not have jurisdiction under the Convention to address
whether the United Kingdom or Mauritius has the rights of a coastal state regarding the
Chagos Islands. Nevertheless, the Tribunal also held that, in creating the MPA by
unilateral declaration, the United Kingdom had failed to take into account certain
legitimate interests of Mauritius and had thereby breached its obligations under Articles
2(3), 56(2), and 194(4) of the Convention.

On the merits, this case presents a conflict between the right of a coastal state to
enact environmental restrictions on fishing in its EEZ and the rights of others to
fish to protect their livelihoods.  MPAs have become a favored tool of marine
scientists, environmentalists, and policy makers to protect and conserve global
fish stocks, as exemplified by the call in the 2002 World Summit on Sustainable
Development to establish “representative networks” of marine protected
areas around the world by 2012. [36] But human rights groups have also raised
concerns about the potential of MPAs to restrict disadvantaged peoples (like the
Chagossians) from using those resources to improve their condition.[37] This
case presents an opportunity for the tribunal to decide whether the United
Kingdom struck the right balance with this MPA.