Precedent for the 21st Century: The Danube Lawsuit

By Bela Liptak, 25 May 1997

In the fall, the World Court in The Hague will rule on the first international environmental lawsuit. This case will set two precedents: First, it will decide if the international community has the right to protect the natural treasures of the planet against irresponsible national governments. Second, it will weigh the relative importance of the well established law of treaties against the still evolving body of environmental law. Here, I will give a brief chronology, describe the legal and political considerations in this case, and conclude by asking for your help.

The Delta of the Pannon Sea

As the ice cover receded to the North, some eight thousand years ago, the Pannon Sea was formed in the Carpathian Basin. The water from the melting snow was carried into it by a river, which the Romans called Ister and we call the Danube. This ancient sea delta was located, where the borders of Austria, Hungary and Slovakia meet. The unique flora and fauna, which evolved from Europe's only inland sea delta, survived in the Szigetkoz (island region) of Hungary into the 20th Century.

For over a thousand years, until the First World War, this region, including Slovakia was part of Hungary. Slovakia, as an independent state was first proclaimed by the Munich Pact in 1938 and existed for 7 years as a German protectorate, until 1945. (Slovakia was reestablished in 1993.) During the Soviet occupation, the region was militarily controlled by the Warsaw Pact and economically by the COMECON.

On September 16, 1977, the militarily occupied states of Czechoslo vakia and Hungary, in the presence of Soviet officers, signed the Gabcikovo-Nagymaros (B-N) treaty. According to its preamble, the goal of the treaty was to significantly contribute to the socialist integration of COMECON. In addition to socialist integration, it would have also provided the Warsaw Pact forces with inexpensive and efficient access to the new harbor of reliable Bratislava. This was important not only, because, since 1956, Budapest (the last navigable port) was no longer reliable, but also because the new Bratislava harbor could serve the Soviet fleets of both the Black Sea and the Baltic Sea, through the Danube-Morava-Oder canal.

Construction and Protest

In the early 1980s, an Interdisciplinary Commission of the Hungarian Academy of Science (MTA) determined, that the B-N project would destroy the ancient ecosystem of the Szigetkoz and would threaten the drinking water supplies of the region. The shortage of funds and the joint opposition of the environmentalists and MTA succeeded in delaying the start of construction at Nagymaros until 1985, when the Austrian finance minister Hannes Androsch arranged for a loan of 5.8 billion Austrian schillings to be repaid between 1996 and 2010, by supplying electricity, at a rate of 0.91 billion KWH/year for 15 years. This would have taken 67% of Hungary's share of the electricity generated by the G-N project. (The total production at Gabcikovo today is about 2 billion KWH/yr. As half of that should belong to Hungary, Slovakia's share represents 4% of her electricity needs.)

It was at this time that (being the editor of the Environmental Engineers' Handbook) I was asked to obtain international support for saving the Danube wetlands. With the Sierra Club, the Audubon Society, Friends of the Earth, WWF and many others, we organized the first international day of environmental protest ever held on the 31st of October, 1988. Simultaneous protest marches were held in 49 cities around the World, and in our handouts we asked the environmentally conscious youth: not to ski in Austria that year. The protests succeeded, and on May 13 1989 the construction was halted. (Today, while the fate of the illegal Danube diversion case is pending at the World Court, J.P. Morgan is financing the finalization of the diversion, and therefore the international NGOs are now considering international action against that bank.)

Road to the World Court

By 1991, an environmentally sensitive, democratic government was elected in Hungary, while the nationalist government of Slovakia started preparations to divert the Danube (at Cunovo, called the C- Variant) onto her territory, which would allow her to unilaterally complete the project. Hungary informed Slovakia that such expropriation of the border river would violate Hungarian sovereignty and territorial integrity, would be in conflict with international law; with the UN Charter and the Paris Peace Treaty, (which sets the main course of navigation as the border, while after the diversion, the natural riverbed would no longer be navigable), and would leave Hungary no choice, but to use the “fundamental change in circumstances” clause of the 1969 Vienna Convention to terminate the treaty.

Slovakia did not stop the preparations for diversion and in May 1992, Hungary denounced the Treaty as invalid. In June, 1992, the breakup of Czechoslovakia became inevitable, which removed the environmentally conscious (pro-Hungarian) Czech influence from the picture and left a nationalist (with a dream of a “greater Slovakia”), Vladimir Meciar in full control. In October 1992 Slovakia blocked the Danube at Cunovo and diverted its water into a concrete sealed canal onto her own territory. What used to be the Danube, became a trickle at the bottom of the riverbed and that trickle later turned into a stagnant open sewer, because of the untreated wastewater discharges from Bratislava. The fish died, the fishing birds left the Szigetkoz, the thousand islands turned into a thousand sand hills as the groundwater level dropped up to 10 feet over an area of 300 square kilometers. On April 7, 1993 the case was sent to the World Court.

The International Court of Justice (ICJ) is the legal arm of the United Nations. It consists of 15 judges: 5 from the permanent members of the UN Security Council, 2 each from Western Europe, Asia, Africa, South America and one each from Eastern Europe and the Middle East. The judges are nominated by and reflect the views of their governments and of the public opinion of their nations. To date the Court has given 56 judgements and 21 opinions, but the Danube lawsuit is the first case, which sets traditional “treaty law” against the evolving body of “environ mental law” and which, in addition to the views of the two governments, also considers the interests of mankind. The new president of ICJ is the environmentally conscious American law professor, Stephen F. Schwebel.

The Lawsuit

The court in 1994–5 accepted three position papers, called Memorials: One from Hungary, one from Slovakia and the third from an internation al NGO Coalition, which among others included Greenpeace, Interna tional Rivers Network, Natural Heritage Institute, Sierra Club and WWF. The NGO Coalition was accepted by the ICJ as the friends of the court and argued, that the natural treasures of this planet are not the sole properties of national governments and such unique ecosystems as the Szigetkoz deserve international protection.

During the verbal phase of the lawsuit (in March and April of 1997), Hungary argued, that the treaty was invalid, because it was forced upon two militarily occupied nations and because one of the signing parties (Czechoslovakia) no longer exist. Hungary also referred to the Cornu Channel case, where the ICJ found that states could not allow the use of their territory to harm other states , the 1974 decision (UK vs. Iceland), where the ICJ found that changed circumstances justified the termination of a treaty and to the June 1992 speech of the ICJ registrar at the Rio Conference, where he argued for the court to play an important role in developing and enforcing a body of international environmental law.

Slovakia argued that she is the successor of Czechoslovakia, that the termination of the Warsaw Pact and COMECON should not automatically terminate the treaties among Warsaw Pact members, that upriver nations do have the right to reroute border rivers and that human progress is more important that nature conservation. Slovakia also argued that the total destruction of the Szigetkoz extend to only 130 and not 300 square kilometers and that new swamps were formed elsewhere, which are just as good.

In addition to accepting the NGO Memorial, the ICJ has set yet an other precedent by taking all 15 the judges to visit the site. The judges have seen the environmental catastrophe in the Szigetkoz, the dried up wells, the islands turned into sandhills, they have received data on the health danger represented by the trickle of virus and bacteria infested stagnant sewer at the bottom of the Danube riverbed and they have, I am sure, realized that the millenia old ecosystem with its 400 unique species, can not be replaced by a polluted swamp, which was formed on the outskirts of Bratislava, as a result of the rerouting.

The Compromise Plan

Presently the judges are consulting with their respective governments, and are evaluating the various plans which have been offered for resolving the conflict. The Compromise Plan which is described here, was prepared by NGOs and is one of the most promising of these:

The plan would return the Danube into its natural riverbed by eliminating the temporary Cunovo weir (C-Variant) and by activating the Dunakiliti weir. It would make Gabcikovo safe by redesigning it to withstand seismic shock and to allow shipping during drifting ice conditions. As a result, Hungary would regain her border river, and protection would be extended to the ancient ecosystem of the Szigetkoz, the drinking water supplies and the health of the region. Slovakia would retain her harbor at Bratislava, and at times of high water, would receive all the electricity generated at Gabcikovo. At times of low water, the Gabcikovo bypass would operate as a stagnant bypass canal for shipping only.

The European Community would benefit by having good, year-around shipping through both the Gabcikovo bypass canal and the restored natural riverbed of the Danube. The United States would benefit by proving that the “new world order” works, while the costs would be insignificant in comparison to the Bosnia style peace-keeping solutions. Mankind would save and return into its 19th Century glory, one of the planet's richest and oldest ecosystems and the region would benefit, not only by the restoration of its agriculture and drinking water supplies, but also by obtaining thousands of jobs, both during the reconstruction, and later through ecotourism. The region from Hainburg to Gonyu would become Europe's prime nature preservation park, operated as an “European Free Zone”, where all residents (Austrians, Hungarians, and Slovaks), could freely work and travel. This sense of regional community and interdependence could also become an example and a catalyst for a wider reconciliation in all of Central Europe.

Ruling and Enforcement

Knowing that the ICJ is interested in establishing a body of legal precedents for the global protection of the environment, there is little likelihood that it would approve the destruction of an ancient ecosys tem or the appropriation of a border river. Therefore, it is likely, that the ruling in the fall will mandate a solution, such as the above described Compromise Plan.

If the ICJ rules that the Danube must be returned into its natural riverbed, that ruling will have to be enforced by sanctions. Yet, the ICJ has no enforcement authority! If Slovakia refuses to carry out the ruling, the Court can and probably will ask the Security Council to do so. If by the fall of 1997, the leaders of the World are ready to apply sanctions, Slovakia will not risk that and will accept the ruling. In that case Europe's oldest natural treasure, the Szigetkoz will be saved and the international community will have set a precedent for the 21st Century, a precedent, which shows that the oceans, rainforests and wetlands of this planet belong to all of mankind and the international community has the will and the means to protect them.

Therefore the task ahead is to make our political leaders not only aware of the Danube lawsuit, but ready to act in the fall, when the time comes for the enforcement of the ruling. If you take the trouble of writing to President Clinton about this, you will help to establish an international legal framework for the protection of the remaining natural treasures of this planet. Please write that letter.