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International Court of Justice

The International Court of Justice (ICJ), sometimes referred to as the World Court, is the primary judicial organ of the United Nations. It sits in The Hague, Netherlands and is composed of fifteen independent Justices from around the world. The ICJ is the only court in the world with general and near-universal jurisdiction; countries may bring cases before the Court even without becoming United Nations Member States, as long as both countries have consented to be subject to the Court’s jurisdiction. It may entertain any question of international law, subject to the provisions of its founding statutes.

The Court’s role is to examine international law and to settle legal disputes submitted to it by states. It also dispenses advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies. Since 1946, the Court has heard more than 160 cases, including more than 25 advisory proceedings. ICJ opinions, unlike most national legal systems, do not create binding legal requirements on other United Nations Member States, and cases are generally treated independently of one another.

The Justices are nominated by regional groups and elected by the General Assembly and Security Council for nine-year terms. Justices must receive a majority vote in each body to be named to the Court, and one third of the Court is elected every three years. When a state is party to a case before the ICJ, it enjoys the right to appoint an ad hoc justice. The ad hoc Justice does not need to be from that State. The ad hoc Justice enjoys the same privileges and responsibilities as the other Justices, but his or her obligation is limited to proceedings in that case.

Unlike most other international organizations, the members of the Court are not representatives of governments; they are independent judges whose first duty is to exercise their powers impartially and conscientiously in the Court.

Proceedings before the Court can last for years, involving complex issues of international law as well as difficult political questions. The States party to the case submit pleadings, or memorials, in writing along with extensive records supporting their cases. The States also participate in oral arguments, which allow States to explore the case and respond to questions from the Justices. The Justices deliberate in private, then read the judgment in an open forum.

Common Types of Cases Common Types of Cases

The Court hears two types of cases. First, there are contentious cases between two States where there is a legal dispute and the States parties are bound to the Court’s decision. States may institute proceedings by mutual agreement or by unilateral application against a respondent State. This is different from the International Criminal Court, which hears cases against individuals for crimes such as genocide.

Many of the Court’s cases—historical and contemporary—are border or territorial disputes, where two States agree to let the ICJ decide where the border should be. Other cases are highly charged and quite political in nature—it is rare that the interpretation and application of the law operates entirely outside of the realm of political discourse, and in the international arena, this is especially true.

Second, the Court can issue advisory opinions on legal questions referred to it by other agencies, such as the Security Council or the General Assembly. This opportunity is open to the five major organs of the United Nations and 16 other specialized agencies. Unlike the rulings in contentious cases, advisory opinions are not binding on the parties that request the opinion; the organization is under no legal obligation to follow the Court’s recommendation. The Court requests written and oral proceedings for the case, although these processes may be truncated when compared to the process used for contentious cases.

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Structure of the AMUN ICJ Structure of the AMUN ICJ

In keeping with AMUN’s philosophy of simulating United Nations bodies as closely as possible, the AMUN ICJ closely resembles the ICJ in the Hague. The ICJ at AMUN is composed of student Justices who hear oral arguments, deliberate on the cases before them and collaboratively develop opinions of the Court. Students also participate as Advocates, presenting their case first in a written memorial and then in oral arguments, where they present their case in person and respond to questions from the Justices.

AMUN Registrars assist the Justices with any additional legal research the body may require and help facilitate the work of the Court through each of the three cases. Secretariat responsibilities also include researching cases for inclusion on the Court’s docket, reviewing memorials submitted to the Court, assisting in the preparation of the Court’s docket and providing any other assistance needed by ICJ Justices and Advocates.

The cases preselected by the AMUN Secretariat form the Court’s docket. This year the Court is deliberating three cases:

  • Whaling in the Antarctic (Australia v. Japan)
  • Jadhav (India v. Pakistan)
  • Gabčíkovo-Nagymaros Project (Hungary/Slovakia)

Additionally, the General Assembly or the Security Council may submit a request to the Court for an Advisory Opinion on a topic of international law. The Secretary-General, with the advice of the Director of the ICJ, will decide whether to include additional cases on the Court’s docket. The Court is in session to hear arguments and develop opinions throughout the Conference.

The Justices should expect to spend the first session setting the docket, electing officers, determining the final procedures of the Court and reviewing the substantive issues in each case before the Court. The rest of Conference will be spent hearing cases, deliberating and rendering opinions on those cases.

Although the Secretariat strives to give the Justices as much freedom as possible in setting the docket, some restraints do exist in the interest of promoting a fair and equal experience for the advocates as well as the Justices. All advocates will receive an equal amount of time in the docket to present their arguments, respond to questioning and for deliberation among the Justices. Although advocates will not know the order of the cases and arguments prior to the first evening of the simulation, the Secretariat, in conjunction with the Justices, will strive to communicate the order as soon as it is set to the advocates. The docket is also published in the AMUN Chronicle. After the docket is set, the Court elects a President and Vice President by secret ballot. Their duties are to moderate and time the oral arguments and facilitate the closed deliberations.

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Joining the International Court of Justice Joining the International Court of Justice

Permanent Justices Permanent Justices

Justice positions are assigned by application on a first-come, first-served basis until the fifteen seats on the Court are filled. It is not a requirement for Justices to be a member of a delegation. Permanent Justices are full time Conference assignments, and representatives serving as Justices shall not be assigned to another simulation.

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Ad Hoc Justice Application and Role at Conference Ad Hoc Justice Application and Role at Conference

States involved in a case before the Court are strongly encouraged to place an Ad Hoc Justice on the Court if they do not already have a Permanent Justice. States wishing to do this may do so in two ways: (1) they may apply to be a permanent Justice (see above); or (2) they may appoint an ad hoc Justice. Ad hoc Justices sit on the Court only for the case in which their country is involved and must be assigned to another simulation. If States wish to appoint an ad hoc justice they must contact the Secretary-General and the Director of the International Court of Justice by 1 October by e-mailing icj@amun.org. Ad hoc Justices should, whenever possible, be paired with another representative in committee, so the State is fully represented in the committee while the ad hoc Justice participates in the Court’s proceedings.

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Advocates Advocates

Advocate positions are not full-time Conference assignments. ICJ Advocates are assigned as members of the delegations who have cases before the court. Generally, Advocates should expect to spend two to three hours presenting their case and hearing the Court’s opinion during the Conference. Advocates must also serve as representatives in another AMUN simulation or as a delegation’s permanent representative. ICJ Advocate teams are limited to two people. ICJ Advocates should, whenever possible, be paired with another representative in committee, so the State is fully represented in the committee while the Advocate participates in the Court’s proceedings.

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Preparation Preparation

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Preparing as a Justice Preparing as a Justice

Familiarizing yourself with the information provided in this handbook and on AMUN’s website is a key starting point to your preparations. Justices should familiarize themselves with the factual and legal disputes at hand, as well as the international treaties involved. Another helpful resource is previous ICJ opinions that are similar. While reading opinions, note the tone and style used by the Justices. Pay special attention to the way the Court addresses questions of jurisdiction; often this is the crux of the winning argument for the Court. Memorials written by the Advocates will be made available on the AMUN website in November as soon as memorials from all sides of a case are received by AMUN staff. Reviewing these resources is key to a successful experience.

Each Justice, while independent, will still have a roleplaying function. ICJ Justices retain their citizenship with the state their school represents at the Conference. Justices not affiliated with a delegation will be assigned citizenship with a state; while ICJ Justices are supposed to be independent advocates for the law, they often come to the Court with inherent biases based on their home country’s history, culture, religion and laws. Similar to the ICJ in The Hague, a Justice’s citizenship is important as it can sometimes cause a Justice to favor or side with the position advocated by their country of origin when that State comes before the Court.

All Justices will be expected to hear arguments and question the Advocates in all cases on the docket. Any Justice not present during the Court’s Oral Arguments may not participate in the subsequent deliberations and opinion writing for that case. After each case is argued, the Justices retire behind closed doors to deliberate and to draft the opinion of the Court. As per Article 25, paragraph 3, of the Statute of the Court, 60% of all Justices who were present for oral arguments shall suffice as quorum for deliberations. This number may be adjusted by the Director of the International Court of Justice as appropriate to facilitate the simulation. Justices discuss the case in depth, pulling from their research prior to the Conference, the Advocates’ memorials and the points raised during oral argument. If the Justices require any additional information, they are welcome to request that from the Registrars. Justices collaborate to write a majority opinion and as many concurring and dissenting opinions as the body requires. Justices use their persuasive writing and speaking skills to sway additional Justices to their position throughout the drafting process.

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Preparing as an Advocate Preparing as an Advocate

Advocates’ opportunity to present their case is twofold: written memorials and oral arguments. Advocates must thoroughly understand the legal principles that support, and those that oppose, their position, and be able to articulate them in the face of strict scrutiny from the Justices. The research and creation of an Advocate’s Memorial is one of the most important parts of preparation for an Advocate’s at-Conference role. Time spent thoroughly researching the Advocate’s State’s positions and arguments provides Advocates with the vital information necessary to respond to questions at Conference and helps them effectively craft a memorial to present their arguments to the court before the Conference.

Prior to oral arguments, Advocates have the opportunity to consult with an ICJ Registrar about their oral argument. To take advantage of the opportunity, Advocates should attend the Advocate meeting on the first evening of the Conference, where the Registrars will share information about the simulation timeline and give Advocates the opportunity to set up a practice session.

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Written Memorials Written Memorials

ICJ memorials should contain:

  • Jurisdictional statement and arguments (outlining whether your country recognizes the Court’s jurisdiction in this case)
  • Statement of facts (what are the relevant facts in the case?)
  • Statement of law (what treaties, customs or laws apply?)
  • Argument section (detailing how the law and facts apply to the merits of the case – how do the laws and facts support your case?)
  • Summary and prayer for relief (what do you want the Court to do?)

The Court does not require these sections to be in any particular order, although they are typically laid out in the order shown. As you draft your memorial, think carefully about how best to use these sections to your advantage to advocate your position.

The party bringing the case is called the Applicant. The defendant is called the Respondent. In an Advisory Opinion, each country is known as a Party. Due to time constraints, all Parties in any AMUN ICJ case must prepare their memorials without seeing the memorial of their opponent. However, each side should anticipate and seek to counter the arguments opposing Advocates might make. All memorials must be submitted by 25 October to the AMUN Secretariat at icj@amun.org.

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Oral Arguments Oral Arguments

Oral arguments provide Advocates with an opportunity to explain to the Justices the factual and legal merits of their case. In adversarial cases, the Applicant will argue first. The Respondent will then have the same amount of time to reply. Finally, the Applicant will have the opportunity to present a brief rebuttal. In Advisory Opinion cases, each Party will have a set amount of time to present their argument to the Court and for rebuttal, the order for which will be determined by the Justices on the first evening. Advocates presenting amicus curiae arguments will then be accorded no more than five minutes each to speak. The Justices will create the docket and define the amount of time for oral arguments. Advocates, with the exception of amicus curiae, should prepare between 10 to 20 minutes for arguments. The oral argument is not simply an opportunity to give a prepared speech; Justices often interject with multiple questions throughout the presentation. At least the first five minutes of each Advocate’s presentation will be uninterrupted, to allow each side the opportunity to freely present the key issues of their arguments. After the initial five minutes, the Advocates may continue with their presentations, but the Justices may also interject and question the Advocates on the merits of their case. Therefore, Advocates must be prepared to both answer questions and defend their positions. The following steps should be taken to prepare for oral arguments:

  1. Identify the critical issues in the case. You should try to have at least three main points to your argument.
  2. Develop a theme which incorporates your best arguments on the critical issues. Keep it simple. Remember, the best arguments are structured around a story that has a unified theme, which explains why your country has been wronged, and what the Court can do to provide a fair and just solution.
  3. Prepare an outline. The outline should include your theme, your best arguments on the critical issues, your responses to your opponent’s best arguments and ideas about answers to any other questions you think the Justices might ask. Try to make your memorial and oral argument outline consistent, so the first issue addressed in the memorial is the first issue addressed in the oral argument.
  4. Practice, practice, practice! There is no substitute for practicing oral arguments: your presentation is likely to be smoother and more persuasive. Have your Faculty Advisor or other students fire questions at you. Learn to field those questions and then transition back to the point you were making prior to the question.
  5. Learn proper courtroom demeanor. Remember to be polite and deferential to the Justices at all times. While argument is the method, persuasion is the goal.

Though each Advocate will have more than five minutes to present oral arguments, keep in mind that only the first five minutes of the presentations will be uninterrupted. Focus on the main points and key issues during the first five minutes. AMUN suggests that you follow a pyramid format; present the crux of the argument first and then use the remainder of the allotted time to expand on those issues in a more thorough and complete manner. This format can also allow for a quick means of referencing issues during the remaining period of presentation and questions. It is also wise to conclude the presentation by again summing up the key points.

Try to anticipate questions the Justices might ask and develop answers. Do not write out answers verbatim. Do, however, write out catch phrases or legal terms you will want to remember precisely. Simple, concise answers that repeatedly stress the same points are persuasive and will be remembered by the Justices. Oral arguments will involve extemporaneous speaking and responses, not the presentation of a memorized speech.

Outline the specific names of conventions, treaties and cases in your memorial and your outline. Your oral argument requires these citations to maintain your credibility with the Justices, and articulate the reasons your side of the case is stronger.

Note: Remember that the AMUN ICJ is a simulation. No one expects participants, who are not lawyers or Justices, to make presentations, decisions or render opinions with the same level of sophistication as actual ICJ Justices or Advocates. The participants’ job is to gain a basic understanding of what considerations are taken into account when presenting or presiding over a case and to prepare to argue their cases before the Court.

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Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) Whaling in the Antarctic (Australia v. Japan: New Zealand intervening)

This is a historical case. In accordance with AMUN rules and procedures, please note that the historical timeline for this case will stop on 19 November 2012. Any and all updates to this case after that date will not be relevant to the AMUN simulation nor considered in hearing the case.

The International Convention for the Regulation of Whaling (ICRW) has been signed by 88 Member States in a conservation effort to support whales. On 10 November 1948, Australia signed the ICRW and Japan joined soon after on 21 April 1951. On 31 May 2010, Australia formally submitted documentation to question whether the Japanese Whale Research Program under Special Permit in the Antarctic (JARPA II) of 2005 was in violation of Japan’s commitment to the ICRW. Australia is concerned that Japan was not upholding their obligation to preserve marine mammals and the environment by whaling in Australian waters. Australia’s basis of jurisdiction was under Article 36, paragraph 2 of the Statute of the International Court of Justice (Statute). The compulsory jurisdiction of the Court was recognized respectively by both Australia and Japan on 22 March 2002 and 9 July 2007. 

Australia claims the Court’s jurisdiction is compulsory. On the contrary, Japan would categorize the present issue as a bilateral legal dispute. For this reason, Japan claims the Court lacks jurisdiction in this matter, but did not raise preliminary objections.

Article VIII(1) of the ICRW allows any Contracting Government to grant to its nationals a special permit for scientific whaling. Whaling conducted under the protection of a permit is exempt from the ICRW, but all such permits must be reported to the ICRW immediately upon issuance. After the 1986 moratorium, Japan issued itself a permit under which it caught a small number of whales each year for scientific study. This program, known as JARPA I, ran from 1987 to 2005. When JARPA I expired, Japan announced that it was instituting a second phase of JARPA under Article VIII, called JARPA II. This second phase increased the sample size of whales taken under the program by 10 percent. JARPA II also expanded the study to include humpback and fin whales.

As a member of the ICRW, Australia brought to the attention of the Court Japan’s violation of the international agreement. Australia claims Japan has not been whaling for scientific purposes as agreed upon, but for commercial purposes. Australia claims Japan conducts commercial whaling in disguise. Japan asserts it is compliant with ICRW and JARPA II. Australia contends that Japan has breached the following obligations under the ICRW: 

  1. The obligation under paragraph 10(e) of the Schedule to the ICRW to observe in good faith the zero-catch limit in relation to the killing of whales for commercial purposes; and
  2. The obligation under paragraph 7(b) of the Schedule to the ICRW to act in good faith to refrain from undertaking commercial whaling of humpback and fin whales in the Southern Ocean Sanctuary.

Japan justifies its actions under JARPA II, which permits the use of non-lethal or lethal methods of whaling due to scientific research. Japan is accused of violating the Convention by whaling for commercial purposes. Under Article VIII, paragraph 1 of the ICRW, a Member State may obtain a special permit for the scientific research of whales. The special permit allows the Member State to take possession of or kill whales for scientific research purposes. 

In addition to its alleged breaches of the ICRW, Australia also contends that Japan has breached, and continues to breach, its obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) by removing from the sea specimens threatened with extinction absent exceptional circumstances. Similarly, Australia claims that Japan has breached its obligation under the Convention on Biological Diversity (CBD) to ensure that any actions taken within Japan’s jurisdiction are not harmful to the environment of other States. Australia also asserts that ongoing negotiations in the IWC have been “unable to resolve the key legal issue that is the subject of the dispute, namely the large-scale ‘special permit’ whaling under JARPA II.”

Japan entered several reservations to the CITES agreement for various whale species mentioned therein. Japan asserts that both CITES and CBD are not applicable to this matter. Further, even if CITES were applicable to this matter, the Convention allows for sustainable use of biodiversity. As such, Japan argues the JARPA II program fits within the Convention’s parameters.

Japan claims that JARPA II is permitted under Article VII(1) of the ICRW, which authorizes Contracting Governments to grant special permits to its nationals to kill, take or treat whales for scientific research. Further, Japan claims it is not in violation of any obligations of the Convention on Biological Diversity, including Articles 3, 5 and 10(b). Article 3 requires States to ensure that activities under their jurisdiction and control do not cause harm to other States or to areas beyond their national jurisdiction. Article 5 states, “as far as possible and as appropriate,” States Parties are to cooperate (including through international organizations) in the conservation and sustainable use of biological diversity beyond their national jurisdiction. Article 10(b) requires States, “as far as possible and as appropriate,” to adopt measures that avoid or minimize adverse impacts on biological diversity.

Australia requests that the Court declare that Japan is in breach of its international obligations in implementing the JARPA II program in the Southern Ocean. It also requests that the Court order Japan to cease implementation of JARPA II; revoke any authorizations, permits or licenses allowing the activities which are subject of this application to be undertaken; and provide assurances and guarantees that it will not take any further action under JARPA II, or any other similar program, until such program has been brought into conformity with Japan’s obligations under international law.

First, the question of jurisdiction must be addressed. If the Court is found to have jurisdiction, it must then decide if Japan was in violation of the ICRW and if in fact the scientific research purposes standard has been met. Furthermore, the Court must determine the obligations of a Contracting Government that issues a special permit to itself under Article VIII(1) of the ICRW.

Questions to consider:

  1. When a State is concerned its fellow Member State is not fully in compliance with commitments, through what capacity does the Court aid in keeping Member States accountable?
  2. If a Member State is in violation of similar commitments in several different agreements, can the petitioner request the Member State be held accountable to stricter standards put forth in an alternative agreement? 
  3. Do JARPA II efforts qualify to reach the standards of scientific research of whales outlined in the ICRW?

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Bibliography Bibliography

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Jadhav (India v. Pakistan)  Jadhav (India v. Pakistan) 

This is a historical case. In accordance with AMUN rules and procedures, please note that the historical timeline for this case will stop on 17 February 2019. Any and all updates to this case after that date will not be relevant to the AMUN simulation nor considered in hearing the case. 

On 8 May 2017, the Government of the Republic of India (India) instituted proceedings against the Islamic Republic of Pakistan (Pakistan) in the International Court of Justice (the Court) alleging that Pakistan had violated Article 36 of the Vienna Convention on Consular Relations of 24 April 1963 (Vienna Convention). The Application asserted this violation was found in Pakistan’s failure to inform India in a timely manner of the arrest, detention and sentencing to death by military court of Kulbhushan Sudhir Jadhav, an alleged Indian national. India’s application instituting proceedings posits that Pakistan had neglected to inform Mr. Jadhav of his rights while in custody, and had further eschewed these rights by failing to allow India’s consular officers to contact Mr. Jadhav, preventing India from providing Mr. Jadhav with appropriate representation and placing Pakistan in “brazen violation” of Article 36 of the Vienna Convention. 

Additionally, India submitted a Request for the indication of provisional measures on the same day their Application was filed. This request urged the Court to immediately “take all measures at its disposal” to suspend the execution of Mr. Jadhav’s death sentence. India also requested that the Court declare the unilateral sentencing of an Indian national in a military court to be unlawful. Finally, this request asked that the Court direct Pakistan to annul Mr. Jadhav’s sentence
“as may be available under the law in Pakistan.”

In its Application to the Court, India alleged that Mr. Jadhav was arrested near the Iranian border by a military court of dubious legitimacy on 3 March 2016, and was subsequently tried, convicted and sentenced to death while being detained in Pakistan under suspicion of espionage. India claims that it made as many as sixteen attempts to gain consular access to Mr. Jadhav, but that these were not granted by the Pakistani authorities. India stressed the continued obstacles placed before them in their attempts to contact Mr. Jadhav, who it contends was coerced into making a confession video that was disseminated as part of a press release in early April. 

Pakistani authorities countered these claims during a press conference by the Adviser to the Prime Minister of Pakistan on 14 April 2017 by insisting upon the legitimacy of their legal process, and insisted that Mr. Jadhav was provided “a law qualified field officer…to defend him throughout the court proceedings.” Pakistan further asserted that conditional consular access had been offered to India, and emphasized their right to protect their national security because of Mr. Jadhav’s alleged engagement in activities of “espionage, sabotage and terorrism.

Pakistan raised three objections to the Court, suggesting that the case was inadmissible because of India’s alleged abuse of process, abuse of rights and unlawful conduct. Pakistan also questioned the veracity of Mr. Jadhav’s identifying documents, suggesting that he may not be an Indian national, and asked that the Court “dismiss India’s request in its entirety.” 

The request to suspend Mr. Jadhav’s death sentence was granted by the Court on 9 May 2017, but the Court remained mired in questions as to the merits of the case in an international forum. 

In its Application, India posits that the Court has jurisdiction to hear this case based on Article 36, paragraph 1, of the Statute of the Court and Article I of the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes. In line with their objections based on India’s alleged three abuses, Pakistan argues that the Court is unable to render judgment on this case because the Vienna Convention is inapplicable.

It is now the Court’s responsibility to examine the admissibility of India’s Application and Pakistan’s objections thereto. Further, the Court must also establish jurisdiction to consider the background of the case and examine whether the alleged actions constitute a violation of the Vienna Convention or other tenets of International Law. If so, should the provisional measures submitted by India be upheld?

Questions to consider:

  1. How does the Vienna Convention and other relevant International Law support or refute the claims of each party?
  2. How do Member States reconcile bilateral conflict to engage diplomatically with the functions of the Court?
  3. In accordance with the provisions and intentions of the United Nations Charter and the Statute of the International Court of Justice, to what extent is the Court able to render or enforce provisional measures such as those requested by India?
  4. What are the wider-reaching implications of Pakistan’s choice whether to adhere to provisional measures upheld by the Court (such as the May 2017 order to suspend the execution of Mr. Jadhav’s death sentence) for international diplomacy and the efficacy of the Court?

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Bibliography Bibliography

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Gabčíkovo-Nagymaros Project (Hungary/Slovakia) Gabčíkovo-Nagymaros Project (Hungary/Slovakia)

This is a historical case. In accordance with AMUN rules and procedures, please note that the historical timeline for this case will stop on 3 March 1997. Any and all updates to this case after that date will not be relevant to the AMUN simulation nor considered in hearing the case.

On 2 July 1993, the Slovak Republic and the Republic of Hungary submitted a Special Agreement to the Registrar of the International Court of Justice (Court) notifying them of the differences between the Republic of Hungary and the Czech and Slovak Federal Republic on the implementation and termination of the Budapest Treaty of 1977 (The Budapest Treaty). The two parties have agreed that the Court has jurisdiction on this matter in the Special Agreement presented jointly to the Court on 2 July 1993. Additionally, it is important to note that the Slovak Republic took the place of Czechoslovakia as a party to the agreement when Slovakia became independent in 1993. 

The Budapest Treaty was signed on 16 September 1977 between the Government of the Czechoslovak Socialist Republic and the Government of the Hungarian People’s Republic. The treaty agreed to mutual assistance in the construction and operation of a hydroelectric system of locks on the Danube River, known as the Gabčíkovo-Nagymaros Project. The mutual assistance meant that the cost of labor, supplies and materials would be equally shared between the parties, as would the electricity outputs. The goal of the jointly owned and operated system was to “strengthen the fraternal relations of the two states and significantly contribute to the bringing about of the[ir] socialist integration.”

The two parties began construction on the dam, but Hungary’s progress did not match that of Czechoslovakia. By 1989, the Gabčikovo (the portion of the dam owned and operated by Czechoslovakia) was nearly complete, while Nagymaros (the portion of the dam owned and operated by the Republic of Hungary) had barely begun. This lack of progress was due to rising political debate surrounding the project in the Republic of Hungary. Public opposition to the project grew in Hungary on both economic and environmental grounds, and a public petition opposing the project circulated throughout the state and gained 150,000 signatures. The government of Hungary argued that these tensions necessitated termination of the agreement; thus, the Hungarian Prime Minister Miklós Németh called for the suspension of the project in May 1989, saying it was “a symbol of an outdated economic model and a dysfunctional decision-making process.”

In the 1990s, the two parties entered negotiations on the dam but the parties strongly disagreed on the alternatives available: Hungary would only discuss how to dismantle Gabčikovo while Slovakia would only discuss how to build Nagymaros. At this point, the Slovak government began work on what was known as Alternate C, also known as the “provisional solution.” This solution allowed the Gabčikovo Hydropower Plant to operate independently at lower levels and proposed the damming up of the Danube at river kilometer 1,851.7 on the Czechoslovak territory. Alternate C was seen as a temporary solution and left open the possibility to complete the Nagymaros Dam in the future. In May 1992, the Republic of Hungary terminated the agreement via note verbale

The Court must now consider the following question: Is the Republic of Hungary entitled to suspend and subsequently abandon the works on the Nagymaros project and on that part of the Gabčíkovo project for which the Treaty attributed responsibility to the Republic of Hungary?

Hungary argues that it had lawfully ceased construction due to ecological necessity, impossibility of performance, a fundamental change in circumstances and a material breach by Slovakia. Specifically, Hungary introduces scientific evidence contending that completion of the lock and dam system would cause the extinction of local wildlife, deteriorate the water quality of the Danube, result in increased flooding and silting, and decrease the water supply available to Budapest. Further, Hungary claimed that Slovakia had wrongfully continued with construction under Variant C, especially after Hungary transmitted notice that it was terminating the 1977 Treaty. Finally, Hungary argues that Slovakia did not succeed to Czechoslovakia’s rights and obligations under the 1977 Treaty, and therefore has no right to attempt to enforce it or to hold Hungary responsible for any damages.

Slovakia argues that Hungary had breached the Treaty by failing to construct the dam and failing to mitigate damages. According to Slovakia, Hungary’s scientific arguments regarding environmental impact do not rise to the level of “grave and imminent peril” that would allow Hungary to invoke the defense of “Ecological Necessity” under the Vienna Convention on the Law of Treaties. Slovakia also contends that it was justified in proceeding with the Variant C plan due to Hungary’s prior breach of the 1977 Treaty and refusal to continue with the project, in other words, that Slovakia had a duty under international law to mitigate its damages. Finally, Slovakia argues that it did in fact succeed to Czechoslovakia’s obligations under the 1977 Treaty, invoking the Vienna Convention on the Succession of States with respect to Treaties.

Questions to consider:

  1. Does the termination by the Republic of Hungary terminate the validity and contractual agreements of the Budapest Treaty of 1977?
  2. Is the Czech and Slovak Federal Republic entitled to proceed to the “provisional solution?” If so, what impact will it have on water movement and nautical navigation?
  3. What are the legal effects of the notification, on 19 May 1992, of the termination of the Budapest Treaty by the Republic of Hungary? 

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Bibliography Bibliography

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