Hungary gave its first day of oral presentations in Reply to Slovakia’s
legal arguments presented from 24 to 27 March.

Professor James Crawford, Professor of International Law at the
University of Cambridge, opened Hungary’s presentation. He began by
answering some of the questions posed by the Judges during the last round
and during the site visit, and identifying the key legal issues over which
the parties disagreed. He pointed to the numerous Slovak silences on legal
and factual matters, and summarized the history of the case so far. In
concluding he said that “the Court has itself the vocation to act in a
precautionary mode”, that Hungary had legitimate concerns, and that the
Court should declare the 1977 Treaty to be no longer in force.

Professor Alexandre Kiss, Director of Research, Centre National de la
Recherche Scientifique, responded to Slovakia’s argument that the Court
should only give narrow answers to the three questions put to the Court.
He gave a detailed analysis to the Court of the Special Agreement between
the Parties which sent the case to the International Court. He argued that
the Court had a duty to give a judgment that would provide a basis for a
long-term solution to the dispute over the Project, looking to the future
as Hungary wanted, and not just the past as Slovakia wished.

Ms Katherine Gorove, consulting Attorney and former Professor at the
Central European University, challenged the Slovak arguments on the
Studies related to the Original Project, as well as expressing concerns
over its viability. She pointed out that Slovakia had quoted selectively
from scientific reports, and had failed to open and read texts which it
had three weeks ago held up in front of the Court.

She said that the Project had not been properly studied before 1977,
and that although there may have been some knowledge about the possible
adverse impacts there was no understanding about the extent of those
impacts. She said that Hungary had acted reasonably in 1989 on the basis
of new studies which pointed to real concerns, and added that contrary to
the Slovak view the project did not bring real benefits for flood control
and navigation.

Dr Klaus Kern, consulting Engineer, returned to the subject of the
Original Project’s likely impacts. He challenged the Slovak version of the
science, pointing out its numerous inaccuracies and the contradictions
between the views of Professor Mucha, a scientist on the Slovak side,
expressed three weeks ago and his previous writings in which he had
expressed concerns about the Original Project and its impact on water and
nature.

Mr Philippe Sands, Reader in International Law at the University of
London and Visiting Professor at New York University provided a detailed
rebuttal to Slovak arguments on environmental law, on the history of
decisions and negotiations between 1989 and 1992, and Hungary’s right to
suspend work on Nagymaros and terminate the 1977 Treaty on the grounds of
environmental necessity. As to Slovakia’s commitment to the environment,
Mr Sands said that Slovak Counsel had “made not a single mention of any
one of the environmental treaties” to which the Slovak Agent, Dr Tomka,
had expressed his support. He also described the Slovak approach as being
“to ignore arguments we have made, but address those we have not made”.

Professor Boldizsar Nagy, Associate Professor at the ELTE University,
Budapest pointed out that contrary to what Slovakia had claimed, Variant C
was neither temporary nor reversible. He also underlined the failure of
Slovakia to provide any justification for the construction done after
1992, referred to as Phase II of Variant C.

Professor Howard Wheater of Imperial College, University of London,
concluded the day’s presentation by describing the Impacts of variant C on
water and biodiversity. He said that the PHARE Report of which Slovakia
had made so much in fact contained much evidence which supported Hungary’s
environmental concerns in 1989, 1992 and today.

Professor Howard Wheater continued his presentation today (Friday, 11th
of April) on the impacts of Variant C. He provided a detailed exposition
as to the various ways in which the PHARE report essentially supported the
Hungarian arguments, whilst noting nevertheless some serious concerns that
have arisen as to the methodology of underlying assumptions which had
supported the PHARE project. He cited two independently refereed studies
which supported Hungary’s view that whilst the PHARE report provided a
helpful first step, it clearly required considerably more work. In
particular, it could not be used as a basis for predictions as to the
future impacts of Variant C.

Professor Pierre-Marie Dupuy returned to the theme of the timing and
illegality of Variant C. As to timing, he repeated Hungary’s assertion
that all the evidence pointed to a decision having been taken by Slovak
authorities in January 1991 to proceed with Variant C. This contrasted
with Slovakia’s claim that no decision was taken until July 1991. He was
especially pleased to refer the Court to the passage in a book distributed
by the Slovak Government during last week’s site visit which expressly
stated that the decision had been taken by Slovakia on 17 January 1991. He
restated Hungary’s arguments as to the Illegality of Variant C under
bilateral regional and general international law. He concluded that
Slovakia’s justification as to Variant C on the theory of “approximate
application” had no basis in international law and was entirely without
foundation.

Professor Laszlo Valki addressed the issue of Slovakia’s claim that
Hungary could not have lawfully terminated the Treaty because it had not
formally invoked Article 27 of the Treaty which provided for the
settlement of disputes. He said that the Slovak arguments were without
foundation, since (1) Czechoslovakia and Hungary had in practice relied on
the dispute settlement mechanisms provided by Article 27; (2) Article 27
did not establish an exhaustive or exclusive set of procedures; and (3) in
any event, the use of Article 27 would have made no difference in
practice. Quoting his British colleagues, he said that this Slovak
argument was a “red herring”.

Professor James Crawford returned to the subject of the status of the
1977 Treaty. He repeated Hungary’s arguments as to why the Treaty had
never been enforced between Hungary and Czechoslovakia. First, both
Czechoslovakia and Hungary had, by their actions, repudiated the Treaty by
mid-1992. Second, Hungary had lawfully terminated the 1977 Treaty in May
1992, invoking, inter alia, Czechoslovakia’s material breach through the
construction of Variant C, fundamental change in environmental, economic,
and political circumstances, and that in any event Slovakia had not
succeeded to the Treaty.

Professor Dupuy returned to the theme of the legal situation for the
Parties arising from the fact that the 1977 Treaty was not in force
between them. he addressed the questions of Slovakia’s responsibility to
provide reparations and identified the legal instruments which governed
the continuing relations between the Parties over Variant C.

Professor Roland Carbiener gave a short speech in which he indicated
the principles of sustainable development which should govern the Court’s
determination of future arrangements. He said that the Court must look to
the future and not to the past, as Slovakia continued to insist, and that
inspiration for the Court could be drawn from the 1994 Convention on
Sustainable Development for the Danube – the Sofia Convention.

Dr. György Szenasi, the Hungarian Agent, concluded Hungary’s
presentation. He considered that the Court had an important role to play
in assisting the Parties to reach an appropriate solution. Although the
Court should not at this stage lay down a precise regime for the future,
it should set out the applicable principles. He said (1) that Hungary was
entitled to suspend and subsequently abandon work on Nagymaros and
Gabèíkovo; (2) the Czech and Slovak Federal Republic was not entitled to
proceed to the provisional solution of Variant C; and (3) that Hungary had
lawfully terminated the 1977 Treaty. he specifically asked the Court to
declare (1) that the 1977 Treaty had never been in force between Hungary
and Slovakia; (2) that Slovakia was responsible to Hungary for the
operation of Variant C; (3) that Slovakia was internationally responsible
for the damage and loss suffered by Hungary and its nationals because of
Variant C; (4) that Slovakia had to repair such damage; (5) that Slovakia
is under the following obligations: (a) to return the waters to the
Danube; (b) to restore the Danube to its original situation; and (c) to
provide guarantees against repetition of the damage to Hungary and its
nationals. He reminded the Court that under the Special Agreement, either
Party could return to the Court within six months of its judgment if no
final agreement had been reached.

For additional information please contact Mr. Stuart Oldham Tel:
+31 070-345-0295 fax: + 31
070-3621582