(2 April 2001)
Agreement
concluded
between the Republic of Hungary and the Slovak Republic for
the purpose of giving effect to the judgment of
the International Court of Justice of 25th September 1997
Whereas the Parties are
committed to implementing the Judgment of the International Court of Justice of
25 September 1997 ("the Judgment") in its entirety and in good faith;
Seeking to give effect to the
results of the negotiations – as required by Article 5 of the Special Agreement
for submission to the International Court of Justice of the differences between
the Republic of Hungary and the Slovak Republic concerning the
Gabcíkovo-Nagymaros Project – on the modalities of implementation of the
Judgment;
Reaffirming their
aspiration enshrined in the Treaty between the Republic of Hungary and the
Slovak Republic on Good-neighbourly Relations and Friendly Co-operation signed
in Paris on 19 March 1995 to be driven by their interest in caring for the
natural environment and in preserving the conditions of life for future
generations, in particular those provisions committing the two States to
co-operate in protecting nature and the environment, and aiming to prevent and
decrease environmental pollution, especially transboundary pollution;
Committed to
providing to their mutual satisfaction, for the future of that section of the
Danube River which are addressed by the Judgment, based on the Judgment, the
Treaty of 16 September 1977 between the Hungarian People's Republic and the
Czechoslovak Socialist Republic concerning the construction and operation of
the Gabcíkovo-Nagymaros System of Locks ("the 1977 Treaty") - which
established a developing treaty relationship –, and the prevailing situation;
Affirming that
the arrangement shall be consistent with bilateral and multilateral treaties in
force between the Parties and with rules of customary international law,
including the 1976 Convention on the Regulation of Water Management Issues of
Boundary Waters, the 1991 Espoo Convention on Environmental Impact Assessment
in a Transboundary Context and the 1992 Convention of the Protection and Use of
Transboundary Watercourses and International Lakes, and other conventions which
have as their object the protection of the environment and the reasonable and
equitable use of international rivers, biodiversity, and protecting natural
values; and considering it desirable to ensure consistency with the standards
of the European Union (with its aquis);
Affirming further that
they will seek for the solution in accordance with the principle of sustainable
development, that the requirements of economic efficiency should be subject to
the principle of precaution, and that they will carry out the implementation of
the Judgment in several steps, of which the present Agreement is the first;
The
Governments of the Republic of Hungary and the Slovak Republic ("the
Parties") have agreed as follows:
Article
1
1.
The Parties accept the Judgment. By this Agreement they seek to
establish the agreed basis and principles upon which they will give effect to
the Judgment. The Parties recognize that a further Treaty ("the
Supplementary Treaty") will be necessary to amend or replace the 1977
Treaty.
2.
Pending the adoption and entry into force of the Supplementary Treaty,
this Agreement amends the obligations of the Parties pursuant to the 1977
Treaty, the terms of which it shall supplement. In accordance with the
Judgment, the Parties shall amend or replace the provisions of the 1977 Treaty
in conformity with the treaty aims as applied by the Parties and the prevailing
factual situation.
3.
The Parties shall determine the detailed rules for the implementation
of the present Agreement in protocols reflecting the results of subsequent
negotiations.
4.
This Agreement shall bind the Parties when it comes into force in
accordance with Article 10.
1. In accordance with the terms of the Judgment; the Parties agree to
achieve the aims of the 1977 Treaty by application of the following means:
a) The generation of energy will be realised in
the Gabcíkovo power plant and at the Cunovo dam.
b) Navigation of passengers and freight in the
Gabcíkovo section shall take place along the bypass canal. In the Sap-Szob
section they will make efforts to develop a reliable and durable international
water route in line with the UNECE Class VIb., 2.5 meters draught and
appropriate to the special circumstances and realistic needs of navigation at
this section.
c) Flood control and ice release by appropriate
utilisation of the main riverbed of the Danube, the side arms and the bypass
canal on the river section above Sap. Flood protection dykes will be
strengthened along the section addressed by Judgment as necessary.
d) In order to protect the natural environment –
in particular that of biodiversity and the quality of water – the Parties shall
take the necessary measures for the protection of environment, and shall
realise a sharing of water discharge (in accordance with Articles 6 and 7 of
this Agreement) between the main riverbed and the bypass canal that provides a
satisfactory solution for water-supply to the main riverbed and the side arms
in accordance with the Judgment.
2. Without prejudice to as what shall constitute a joint or a national
investment in the subsequent financial agreements of the Parties, the following
shall become part of the investment upon the entry into force of the
Supplementary Treaty:
a) Cunovo structures
i)
by-pass weir controlling the flow into the
river Danube
ii)
the closure of the Danube
iii) ship lock
iv) spillway weir
v)
24,8 MW hydropower plant
vi) inundation weir
vii) intake structure into the Mosoni Danube with the turbines
viii) dividing dyke linking the structures at the left side of the Danube and
listed from i) to vii) to the right side of the headrace canal along the section
of rkm 1842 - 1851,75
ix) reservoir and its dykes,
all in Slovak territory:
b) The Gabcíkovo Power Plant with the headrace and
tailrace canal
i)
bypass canal (headrace and tailrace sections)
between rkm 1842 and 1811, in Slovak territory
ii)
a hydroelectric power plant of 720 MW, a twin
ship lock and their accessories in the bypass canal, in Slovak territory;
c) The Dunakiliti dam and attached works, mainly
in Hungarian territory;
d) The designed and regulated main channel and the
side arms, on both sides.
3. The water quantity to be discharged into the main river-bed of the
Danube shall in all circumstances reflect the principle of the complete
equality of rights of the riparian states. The release of part of the discharge
of the Danube into the bypass canal is without prejudice to the
characterisation of all the waters of the Danube as a shared natural resource.
4. In accordance with the provisions of Article 8 of this Agreement the
Parties will apply provisional operational rules until such time as the
Supplementary Treaty has come into force, or such time as the water management
solution determined by the Supplementary Treaty has been implemented.
1. In order to determine the hypothetical share of energy of the Parties
they shall ascertain the share of investment of the Republic of Hungary and the
Slovak Republic in the Project applying the following principles:
a) The relative weight of investments realised
according Joint Contractual Plan (JCP) elaborated on the basis of the 1977
Treaty (Article 2(2)(a)(ix), (b) and (c) above) shall be taken into account
reflecting the value-proportions of the JCP and the joint methodology of
paragraph 3 of Article 4.
b) The Parties shall agree on the proportion of
the construction works which were not realised according to the JCP (Article
2(2)(a)(i-viii) and (d) above) in the whole Project, on the basis of the
equivalent proportions of the similar JCP construction works in the whole
Project.
c) The hypothetical share of the further energy
production of the Parties shall be determined jointly in proportion to their
shares of the investment in the Project and shares in the utilisable natural
resources for energy production (especially hydropotential) according to the
following formula:
(IS+IH)
x 0,5 +(HPS+HPH) x 0,5 = 1
where
IS =
the Slovak share of investment,
IH =
the Hungarian share of investment, the two together equalling 1.
HPS =
Slovak share of the hydropotential,
HPH =
Hungarian share of the hydropotential, the two together equalling 1.
The share of the energy production (EH) in the case of
Hungary is:
EH
= (0,5 IH + 0,5 HPH)
The share of the energy production in the case of Slovakia is:
ES = (O,5 IS + O,5 HPS).
d) The volume of water available for energy
production shall follow the application of the provisions of Articles 6 and 7
of this Agreement.
2. The Republic of Hungary shall substitute its hypothetical share of the
energy for water to be discharged into the main river-bed of the Danube River
on the basis of the following formula:
WH
= EH (WF – WJ)
where
WH =
the water discharge being the equivalent of the Hungarian Party's share of
energy,
EH = the share of energy from the yearly production of energy to which the Republic of Hungary is entitled according to paragraph 1 of this Article,
WF =
the yearly water discharge of the Danube,
WJ =
the water released as a joint obligation – in accordance with Art. 6, paragraph
1 of this Agreement – into the main river bed of the Danube.
That volume of water shall be diverted into the main riverbed of the Danube on the basis of Article 14 (3) of the 1977 Treaty, and shall be additional to the waters released in application of Articles 6(1) and 7(1) of this Agreement.
3. The Parties shall make provision by an additional protocol with regard
to the value of the energy produced prior to the date of coming into force of
this Agreement by the Project (the Gabcíkovo and Cunovo power plants and the
Mosoni water turbines) that is due to – but has not yet been paid to – the
Republic of Hungary.
4. The investment expenditures of the establishment of a navigation route
in the Sap-Szob section shall be arranged on the basis of Articles 3(1)(b) of
this Agreement.
Methodology for the settlements of accounts and damages prior to the coming into force of the Agreement
1. The Parties, on the basis of the principle of full compensation and
taking into account the Judgment, shall provide compensation for all damage
caused to each other by their wrongful acts.
2. For the period prior to the entry into force of this Agreement; the
Parties shall calculate their total costs which have not been refunded from
other sources, together with the benefits of operating the system of the
installations; and shall settle the claims by mutual agreement.
3. For the determination of damages and costs the Parties shall constitute
a Committee for Compensation and Settling of Costs, establishing the
methodology for determining the amount of costs and compensation. The Committee
for Compensation and Settling of Costs shall work on the basis of the
methodology approved by the Government Plenipotentiaries and under their
control, and the results shall be laid down by the Parties in protocols.
4. The costs of the Parties shall be calculated by reference to the current
daily Euro exchange rate declared by the National Bank of the country concerned
with reference to the date determined by the Committee for Compensation and
Settling of Costs.
5. When changing the values which originated or were expressed in national
currencies or Transferable Rubbles, they shall not use the then current
official exchange rate, but will proceed by a mutually agreeable methodology.
6. For the elaboration of the methodology the Parties shall seek to apply
the methods utilised by the IBRD and the EBRD in relation to other investments
of a similar scale.
By
the Supplementary Treaty, and upon its entry into force,
a) the Republic of Hungary shall accept that in order to produce energy an
agreed amount of water from the discharge of the Danube as a border river be
diverted via the Cunovo dam to the Gabcíkovo bypass canal, and
b) the Parties shall in agreement determine the modified role of the
Dunakiliti dam, inter alia for the
purposes of securing small boat navigation, for the discharge of flood and ice
release, and for water management.
1. The Parties agree on the joint obligation to provide for an increased
volume of water which meets the environmental requirements to be released into
the main riverbed forming the state border and the side arm system of the
Danube in accordance with the principles set out in the Judgment and the
provisions of this Agreement, in particular Articles 7 and 9(6).
2. The provisions set out in paragraph 1 of this Article shall not affect
the right of the Parties, according to Article 14(3) of the 1977 Treaty, to
transform their hypothetical entitlement to a share in energy into an
entitlement to water – in an amount over and above the requirements of the
natural environment as provided by paragraph 1 of this Article – and to direct
this entitlement to water flow into the main riverbed and the side-arms of the
Danube.
1. The water management solution, based on the sharing of water discharges
as provided by Article 6(1) of this Agreement and in accordance with the
principle of sustainable development shall ensure that:
a) there is assured or improved quality and
potential for use of surface waters and all groundwaters and other sub-surface
waters;
b) there is continued and long-term preservation
and restoration of the flora, fauna and biodiversity and its productive
capacity of the area concerned, as well as of the recreational, climatic and
other values of the natural landscape;
c) there is a restored and maintained dynamic
connection between the main bed and the side arms of the River Danube,
including the natural flooding of flood plains;
d) environmentally sound and sustainable flow
rates, directions and dynamics of groundwater are restored and maintained;
e) the safe discharge of floods is provided for;
and
f) a riverbed be formed suitable to the unhindered
navigation of recreational and small boats.
2. The volume of water to be discharged into the main bed of the Danube and
into its side arms shall be sufficient to meet all of the above-mentioned
objectives. In order to determine such volume the Parties shall conduct an
environmental impact assessment in accordance with the provisions of paragraph
5(b) below.
3. The volume of water to be discharged – by the application of the present
Article – into the main riverbed and the side arms in seasonal terms, its
quantity referenced to the Bratislava discharge, the methodology of average
calculation, the way of measurement of the discharge and similar water
management issues shall be determined in accordance with the bilateral treaties
on boundary waters in force between the Parties as well as in accordance with
applicable bilateral and multilateral international treaties.
4. It shall be possible to depart from the yearly average in the
daily/monthly operation where:
a) it is necessary to flood the area of the flood
plain including the side arms at least two times a year;
b) as agreed, in the dormant vegetation period
less than the average rate of flow can be discharged.
5. In order to ensure an effective and sustainable water supply the Parties
shall jointly agree on the applicable water management solution.
a) The Parties agree to jointly examine all the
alternatives meeting the requirements of paragraph 1 of this Article, which are
proposed by either Party.
b) The selection of the solution pursuant to
paragraph I of this Article, the Parties shell be preceded by a joint
environmental impact assessment in accordance with the 1991 Espoo Convention.
c) In the process of selecting a water management
solution and assessing its environmental impacts the Parties shall involve a
third Party as an expert, if necessary.
6. The water management solution to be selected on the basis of the joint
environmental impact assessment to be carried out pursuant to paragraph 5 of
this Article shall be accepted as a part of the joint investment the costs of
which shall be settled in accordance with Article 4 of this Agreement.
7. The Parties shall maintain and seek to enhance the joint monitoring of
the natural environment. In the event that deterioration, or a serious risk of
deterioration, in the environmental conditions occurs or is about to occur as a
result of the operation of the system, they shall immediately modify the rules
for operation.
8. The Parties shall ensure that in matters of the system of installations
there is appropriate participation by citizens in accordance with the 1998
Convention on Access to Information, Public Participation in Decision making
and Access to Justice in Environmental Matters (Aarhus Convention).
1. Pending the adoption and entry into force of the Supplementary Treaty,
the elements of the Project identified in Article 2(2) of this Agreement shall
operate on the basis of the provisional rules for operation to be determined by
agreement of the Parties.
2. On the basis of the principles and rules determined in this Agreement
and once it has entered into force, the Parties shall without delay define the
provisional rules for operation of the Project, in the form of a protocol. The
provisional rules for operation shall include:
a)
the characteristics of the energy production,
b)
the hypothetical share of the Parties in the
energy,
c)
divided into periods, the volume of water to
flow in the bypass canal and the main riverbed and in its side arms, which
shall be a function of the actual available total discharge of the Danube and,
which shall include the volume of water to be released into the main river bed
in lieu of Hungary's share of energy, in accordance with Article 3(2) of this
Agreement,
d)
the rules on the release of floods and ice,
e)
the rules on navigation and on control rights
of the riparian states,
f)
mutual information, data supplying, joint
monitoring and the rules of evaluation,
g)
the exercise of the rights to control the
installations on the territory of the other Party.
1. Any differences between the Parties relating to the implementation of
this Agreement, which the Parties are not able to settle at Plenipotentiary or
diplomatic levels, may be submitted by either one of them to a Fact-finding
Committee, or a Committee of Conciliation, or finally to the International
Court of Justice.
2. The provisions of paragraph 1 shall be without prejudice to the
dispute-settlement provisions of any other treaties or agreements in force
between the Parties.
3. Following its signature the Supplementary Treaty shall be submitted to
the Parliaments of the two Parties for approval, and shall be subject to
ratification.
4. The Supplementary Treaty shall provide for the maintenance of the 1977
Treaty as amended for a period of forty years from the entry into force of the
Supplementary Treaty.
5. For the purposes of the full implementation of the Judgment and for the
period until the conclusion of the Supplementary Treaty the Parties estab1ish –
in addition to the Committee provided for by Article 4(3) of t11is Agreement –
three Committees: a Committee for Water Management, a Committee for
Environmental Protection and a Committee for Energy and Economics. The
Committees shall act under the authority and guidance of the Parties'
Plenipotentiaries and shall have authority to discuss any question connected to
the final solution of the dispute, and to produce materials preparing the
decisions for the Parties.
6. Pending the determination in the Supplementary Treaty of the
requirements of the natural environment for water to be released into the
original riverbed of the Danube pursuant to the Judgement, this Agreement shall
be without prejudice to the requirements of the 19 April 1995 Agreement between
the Government of the Republic of Hungary and the Government of the Slovak
Republic concerning Certain Temporary Technical Measures and Discharges in the
Danube and Mosoni Branch of the Danube.
7. Hungary's hypothetical share of energy shall be not less than 14 percent
of the total; and shall be exchanged for water. The amount of water responding
to the hypothetical share – applying the rules defined in Article 3(2) – shall
on a continuous basis be directed to the main riverbed of the Danube starting
not later than the thirtieth day after the coming into force of this Agreement.
It shall be in an amount over and above the volume of water to be discharged
into the main riverbed pursuant to the Agreement of 19 April 1995 and Articles
6 and 7 of this Agreement.
8. Both Parties undertake to meet the costs of the maintenance and
operating expenditures of the installations situated on their respective territories.
After the entry into force of this Agreement they will bear full responsibility
and liability for the damages caused to the other party or to any third party
by the operation or failure of the installations.
9. The implementation of this Agreement shall be the responsibility of the
Parties' Plenipotentiaries.
1. This Agreement shall come into force on the day of signature by both
Parties. Done in the Hungarian, Slovak and English languages, all texts being
equally authentic. In case of dispute, the English version is authoritative.
2. The Contracting Parties shall jointly inform the International Court
of Justice of its adoption and entry into force, and shall provide the Court
with a copy in English.
Done
at ....