4 - International Courts versus Compliance Mechanisms through the Lens of the Gabčíkovo–Nagymaros and Bystroe Canal Cases

Summary

Recent developments in international environmental law are increasingly characterized by the concern with ensuring the effectiveness of existing international environmental obligations, as well as by a growing awareness of the need to adopt a comprehensive and integrated approach in the management of natural resources. Non-compliance mechanisms are generally assumed to be better than courts for achieving these aims. This chapter assesses this assumption through the analysis of the Gabčíkovo-Nagymaros and Bystroe Canal cases. Despite a judgment of the International Court of Justice (ICJ) in Gabčíkovo-Nagymaros and the triggering of non-compliance procedures in Bystroe Canal, both cases are still pending or have remained substantially unsettled. In particular, this chapter compares the approaches adopted by the ICJ and the competent monitoring bodies, evaluating their respective contributions to: balancing the parties’ conflicting interests; stimulating meaningful and fruitful co-operation of the parties towards an agreed solution; integrating the interests of the parties concerned with the interests of other States, individuals or group of individuals and the global environment.

4.1 Introduction

Recent developments in international environmental law are increasingly characterized not only by the concern to ensure the effectiveness of existing international environmental obligations, but also by a growing awareness of the need to adopt a comprehensive and integrated approach to the management of natural resources. The latter implies the consideration of environmental protection as a collective interest, having due regard to the interdependence between local and global ecosystems, on the one hand, and to the integration of community legal interests into the management of natural resources shared by two or more States, on the other.

Non-compliance mechanisms (NCMs) are generally assumed to be a better mechanism than judicial settlements for achieving both the above-mentioned aims. This chapter intends to assess the correctness of this assumption through the analysis and comparison of two cases, which are characterized by some common features: the Gabčíkovo–Nagymaros (G/N) and the Bystroe Canal cases. Both relate to the planning of great infrastructure projects (the construction of a dam and a canal, respectively) with a possible environmental impact on the same water system (the River Danube and the Danube Delta, respectively). Both gave rise to international disputes, that, despite a judgment of the International Court of Justice (ICJ) (in the G/N case)¹ and the triggering of non-compliance procedures (NCPs) under the Espoo² and the Aarhus Conventions³ (in the Bystroe Canal case),⁴ are still pending or have remained substantially unsettled. Accordingly, certain lessons may be learned from an analysis of these proceedings.

This chapter will compare the approaches adopted by the ICJ in the G/N case and by competent monitoring bodies dealing with the Bystroe Canal case, with the aim of evaluating their respective contributions to: balancing the Parties’ conflicting interests; stimulating a meaningful and fruitful co-operation of the Parties towards an agreed solution; and integrating the interests of the Parties concerned with the interests of other States, individuals or group of individuals and the global environment. Some remarks will follow on the lessons learned from the two cases, drawing some general conclusions on the effective advantages of the mechanisms employed in each case.

4.2 The Gabčíkovo–Nagymaros Case

The ICJ judgment on the G/N case is one of the ICJ’s decisions most quoted and debated by international environmental scholars. Suffice here to recall that the Parties to the dispute – Hungary and Slovakia – strongly disagreed on the implementation of a bilateral treaty, concluded by Czechoslovakia and Hungary in 1977, that provided for a joint investment for the construction of ‘a single and indivisible’ barrage system on the Danube River⁵ consisting of two systems of locks: one at Gabčíkovo (on the Czech side) and one at Nagymaros (on the Hungarian territory).⁶

Divergences of the Parties in the implementation of the 1977 Treaty emerged from the very beginning. While Czechoslovakia was determined to pursue the project, Hungary was very reluctant. In particular, the latter contended that the aquatic environment of the Danube, the water volume and quality and the biodiversity of the region risked being severely jeopardized by the project.⁷ After the suspension (and subsequently, the abandonment) of the works by Hungary in 1989 and the undertaking of an alternative solution by Czechoslovakia (including the so-called ‘Variant C’, entailing a unilateral diversion of the Danube on its territory),⁸ on 7 April 1993, Hungary and Slovakia⁹ turned to the ICJ, acknowledging that ‘differences have arisen’ regarding the implementation and termination of the 1977 Treaty and that the Parties ‘have been unable to settle these differences by negotiation’.¹⁰

The ICJ ruled in 1997 that Hungary was not entitled to unilaterally suspend the 1977 Treaty; the Treaty was still in force and the joint regime for its implementation was a basic element of the agreement. The Parties were thus required to ‘negotiate in good faith in the light of the prevailing situation and … to take all necessary measures to ensure the achievement of the objectives of the Treaty of 16 September 1977’.¹¹ In particular, Hungary and Slovakia had ‘to find an agreed solution within the co-operative context of the Treaty’,¹² taking into account, on the one hand, ‘the objectives of the Treaty, which must be pursued in a joint and integrated way’ and, on the other hand, ‘the norms of international environmental law and the principles of the law of international watercourses’.¹³

Nearly a quarter of a century after the judgment, the negotiations between Hungary and Slovakia are pending¹⁴ and no agreed solution is expected in the short term.¹⁵

4.2.1 Balancing Conflicting Interests and Supporting the Parties’ Co-operation

The ICJ judgment in the G/N case is considered a ‘balanced solution’ by some scholars. Looking more closely, however, this expression has been used in its most extreme meaning (‘[n]either side can claim a victory’)¹⁶ or in a meaning different from the legal one (a ‘“politically” palatable decision’).¹⁷

More generally, serious doubts remain as to whether the Court fully exercised its function. First, the judgment has received much criticism for failing to clarify the obligations of the Parties¹⁸ or, at least, for omitting ‘to define the rights and obligations of the Parties with sufficient precision’.¹⁹

Notably, it has been observed, on the one hand, that the special role attributed by the Court to the principle pacta sunt servanda ‘legitimized the status quo that emerged as a result of the mutual non-performance of [the bilateral Treaty of 1977]’.²⁰ On the other hand, the Parties themselves could be blamed for the continued non-resolution of the dispute. However, the ‘condemnation’ of the Parties to co-operation (‘go back and negotiate in good faith’)²¹ has been regarded as a major cause for the ‘ossification’²² of the dispute. The judgment ‘in a way exacerbated rather than help[ing] to solve the underlying conflict’.²³

Second, it has been remarked that the Court did not sufficiently assess the relevance and the weight of the evidence submitted by the Parties. Indeed, while ensuring that ‘most careful attention’ had been given to the ‘impressive amount of scientific material’ submitted by both States with the aim of ‘reinforcing their respective arguments … as to the ecological consequences of the project’, the Court concluded that ‘it [was] not necessary … to determine which of [their] points of view [was] scientifically better founded’.²⁴ The 1977 Treaty contained the mechanisms for the Parties to co-operate to address environmental considerations. The Court relied also on the assumption that the dangers invoked by Hungary were mostly of a long-term nature and uncertain. Accordingly, these perils, ‘without prejudging their possible gravity, were not sufficiently established … nor were they “imminent”’²⁵, as required by the plea of necessity under the ILC Draft Articles on State responsibility.²⁶

It is certainly worth noting that the Court made a site visit in April 1997, between the two rounds of oral pleadings.²⁷ In addition, due to the technical issues at stake, the tensions between the Parties and the polarization of their respective positions, it would have been desirable for independent experts to assist the Court before it delivered its judgment. Regrettably, the ICJ’s reluctance to appoint independent experts under Article 50 of its Statute and Article 67 of the Court Rules is well known and it is still a matter of extensive debate and criticism.²⁸

Third, negotiations have also been affected by ambiguities in the Court’s ruling. Accordingly, some controversial interpretations of the judgment²⁹ allowed both Parties to ‘… find sufficient legal ammunition to preserve their respective pre-litigation positions’.³⁰

As to the promotion of the Parties’ co-operation, only scant indications were provided by the Court to help the two governments to achieve an agreed solution. Starting from the assumption that ‘[i]t is not for the Court to determine what shall be the final result of these negotiations to be conducted by the Parties. It is for the Parties themselves to find an agreed solution’,³¹ Hungary and Slovakia were required to ‘look afresh at the effects on the environment of the operation of the Gabčíkovo power plant’ and to ‘find a satisfactory solution for the volume of water to be released into the old bed of the Danube and into the side-arms on both sides of the river’.³²

Some general principles were explicitly mentioned by the Court to guide the Parties’ negotiations. First, good faith, which is inherent to the general duty pacta sunt servanda and to the duty of co-operation. The Parties were also required to find an agreed solution, taking into account the norms of international environmental law and the principles of the law of international watercourses.³³

Regrettably, however, the Court was unwilling to dwell upon on the existence and exact content of these principles, although this was one of the reasons for the lengthy dispute between the Parties.³⁴ The Court mentioned the obligation of prevention³⁵ and invoked the concept of sustainable development as aptly expressing the need to reconcile economic development with protection of the environment.³⁶ It declined, however, to explain its opinion with regard to the legal content of the latter, which is still one of the most controversial issues in international environmental law.³⁷ With regard to environmental impact assessment (EIA), the ICJ did not mention this term in its ruling. Neither did it assist the Parties in the reconciliation of their scientific and technical divergences.³⁸ Hungary and Slovakia agreed on the need to submit the joint project to EIA but disagreed on the substance of this decision-making process.³⁹ The failure by the Court to uphold the principle of precaution was also blamed by various scholars. In particular, the ‘state of ecological necessity’ – invoked by Hungary for justifying the suspension or termination of the 1977 Treaty – was considered by the Court exclusively from a legal perspective, that is, according to the parameters of the state of necessity under the law of State responsibility.⁴⁰ As a result, the Court imposed a much higher threshold⁴¹ than the one required by the precautionary principle, which relies on a basic assumption: scientific uncertainty.⁴²

As to the duty of co-operation in good faith, the Court observed – quoting its famous dictum in the North Sea Continental Shelf case⁴³ – that ‘[the Parties] are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it’.⁴⁴ Leaving aside any discussion on the effective compliance of the Parties with the duty to co-operate in good faith, the exact content of this obligation, as codified by Principle 19 of the 1982 Rio Declaration on Environment and Development,⁴⁵ remains controversial.⁴⁶

4.2.2 Integration of the Interests of the Parties Concerned with the Interests of Other States and of the Global Environment

One of the most remarkable aspects of the judgment in the G/N case is to be found in the special role that the rules on interpretation played in the legal reasoning of the Court. It was in fact through the method of evolutionary interpretation that the ICJ established a dynamic inter-relationship and integration between the bilateral treaty obligations undertaken by the Parties in 1977 and the general principles of international environmental law that had been developed after that date. Accordingly, sustainable development was integrated into the scope of the obligations that the Parties had undertaken under their bilateral agreement.

The management of the Danube was not handled, however, as a matter transcending the interests of single riparian States. The ICJ judgment focussed strictly on the rights and obligations of the litigating States inter partes.⁴⁷ No explicit mention of the interests of other riparian States or to the preservation of vulnerable ecosystems as an interest of the international community as a whole can be found in the Court’s ruling. Unfortunately, these considerations are also missing in more recent ICJ environmental jurisprudence.⁴⁸

It should finally be recalled that the representation of community interests through NGOs was only partially possible in the G/N case, due to the very limited role that NGOs can play in the context of contentious proceedings before the ICJ. An amicus curiae brief was prepared by two NGOs, but no reference was made to this brief in the judgment.⁴⁹ In any case, absent specific provisions in the Court Rules, no NGOs would have been entitled to make more than this indirect contribution.⁵⁰

4.2.3 Assessment

The previous remarks confirm the limits of traditional dispute settlement generally highlighted by international scholars. It has been observed, for instance, that ‘[i]nternational adjudication is supposed to be slow, cumbersome, expensive and, ultimately, ineffective’.⁵¹ Indeed, the judgment on the G/N case was rendered four years after the deposit of the special agreement between the Parties. This is ‘not a speed record for a case without procedural difficulties’;⁵² it must be acknowledged, however, that among the reasons that ‘[t]he Court was not quick to organize hearings’, was the fact that the ICJ was simultaneously dealing with other cases.⁵³ However, this is still a very long delay, when addressing significant environmental problems.

As mentioned, the judgment on the G/N case also confirms, on the one hand, that ‘judicial pronouncements serve rather to elucidate important principles than to achieve a concrete and detailed settlement by themselves’.⁵⁴ On the other hand, highly technical issues can hardly ‘be decided by lawyers. Allocation of responsibility for harm to specific actors is difficult, if not impossible … Problem-solving thus requires a less confrontational, more co-operative approach’.⁵⁵

It would be misleading, however, to conclude that the above-mentioned failures derive exclusively from structural limits of the judicial settlement of disputes or from its inadequacy in discharging a function for which it is not fully equipped. On the one hand, it could be argued that ‘by asking the Parties to negotiate a solution … the Court was abdicating the very responsibility that the Parties had assigned to it’.⁵⁶ On the other hand, the actions and omissions of all the Parties directly or indirectly concerned in the G/N case cannot be ignored. In particular, the slow development of fruitless negotiations between the two contending States is largely due to the high politicization of their dispute.⁵⁷ In addition, the lack of transparency that characterizes the ongoing negotiating process does not seem to be fully consistent with the general principles of international environmental law and, notably, with the principle of access to information.⁵⁸

The modest role played by other riparian States or international institutions in the solution of the conflict is also striking. Apparently, neither the European Union (which had been actively involved in the negotiations preceding the ICJ judgment)⁵⁹ nor the permanent bodies established under the Convention on Co-operation for the Protection and Sustainable Use of the River Danube (hereinafter: Danube River Protection Convention)⁶⁰ have significantly supported or facilitated the bilateral negotiations subsequent to the ICJ judgment.

Obviously, it can hardly be said that these entities or other riparian States are under a legal duty to intervene in the negotiating process. However, the issue clearly transcends the individual rights and duties of the Parties to the dispute due to the dramatic impact that the failure of their bilateral negotiations may have on the management of shared natural resources and the preservation of vulnerable ecosystems. A more proactive role in defence of a community interest should thus have been played by other riparian States or international institutions entrusted with specific competences in environmental matters.

4.3 The Bystroe Canal Case

The second case deals with NCPs and concerns the (re)construction⁶¹ of the Bystroe Canal in the Ukrainian sector of the Danube Delta. The Delta covers an area of approximately 5,800 km², shared by Romania (86 per cent of the area), Ukraine and Moldova – ensuring a connection for Ukraine to the Black Sea, as an alternative to the two existing routes through Romania. Romania is obviously concerned about the implications of the project for its economic and social system, but also about its impact on an area characterized by particularly vulnerable ecosystems. Due to its special features, the Danube Delta was included in the list of wetlands of international importance under Article 2.1 of the Ramsar Convention⁶² in 1991⁶³. It was also inscribed on the World Heritage List in the same year⁶⁴ and designated as a Biosphere Reserve under UNESCO’s Man and the Biosphere (MAB) Programme in 1998.⁶⁵

Ukraine notified Romania of its intention to develop the Bystroe Canal Project (BCP) in 2002, but it did not provide Romania with the information required under the Espoo Convention, including an EIA, which was completed after the project had already started.⁶⁶ Ukraine was also considered to be in breach of its obligations under the Aarhus Convention for not having informed the public of the project and of its related decision-making process.⁶⁷ The first phase of the BCP was completed in 2004; the final decision to continue with Phase II was taken in 2007, and in 2010 works related to its full-scale implementation started.⁶⁸

The actions and omissions of Ukraine in respect of its international obligations have been brought to the attention of (and monitored by) almost all institutional mechanisms established under the various international treaties and multilateral environmental agreements (MEAs) applicable to the area. The Danube Delta falls within the scope of four world treaties (the 1971 Ramsar Convention;⁶⁹ the World Heritage Convention;⁷⁰ the Convention on the Conservation of Migratory Species of Wild Animals (Bonn, 23 June 1979);⁷¹ and the Convention on Biological Diversity⁷²) and five regional agreements: the Convention on the Conservation of the European Wildlife and Natural Habitats (Bern, 19 September 1979);⁷³ the Danube River Protection Convention; the Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Helsinki, 17 March 1992);⁷⁴ as well as the already mentioned Espoo and Aarhus Conventions.⁷⁵

In this context, suffice here to recall that two NCPs under the Espoo Convention⁷⁶ were triggered by Romania in 2004 and 2007.⁷⁷ The latter complaint was submitted after the carrying out of an inquiry procedure on the request of the same country under Article 3.7 of the Convention.⁷⁸ The Inquiry Commission (a body composed of three independent experts appointed by the Parties concerned)⁷⁹ unanimously concluded that the BCP was likely to have a significant adverse transboundary impact in Phase I and that an even greater impact was expected in Phase II of the project.⁸⁰ In 2008, the Meeting of the Parties (MOP) declared Ukraine non-compliant with its international obligations and decided to issue a caution unless the Government of Ukraine stopped the works, repealed its final decision of 28 December 2007 concerning the BCP and took steps to comply with the relevant provisions of the Espoo Convention and the relevant decisions of the MOP.⁸¹ The Ukrainian government was also requested to fully implement the Convention’s provisions through: a revision of its legislative and administrative measures; the adoption of a strategy to be submitted to the Espoo Convention’s Implementation Committee by the end of 2009; and the negotiation of agreements and arrangements with neighboring countries under Article 8 of the Convention.⁸²

The above-mentioned caution to the Government of Ukraine became effective on 31 October 2008; nevertheless, no steps (or limited steps) have been taken to bring the project into full compliance with the Convention.⁸³ In 2021 the MOP welcomed various positive steps undertaken by Ukraine, including: the adoption of national measures on EIA, aimed at ‘fully align[ing]’ its national legislation with the provisions of the Convention;⁸⁴ an assessment of the environmental damage and the preparation of a draft plan of compensatory and mitigatory measures; the development of a new ‘Bystroe Route’ project and its notification to Romania.⁸⁵ However, the MOP has expressed deep concern as Ukraine has not yet fulfilled all its obligations under decisions IV/2, V/4, VI/2 and IS/1f.⁸⁶ Accordingly, the caution issued in 2008 is still effective.⁸⁷ The MOP has also reiterated that the continuation of dredging activities constitutes a further breach of the Convention.⁸⁸

An NCP was also triggered under the Aarhus Convention,⁸⁹ on the basis of a communication from the public⁹⁰ and a submission by Romania⁹¹; in 2005 the MOP found Ukraine non-compliant by failing to provide for access to information and public participation under Articles 4 and 6 of the Convention.⁹² After three cautions issued by the MOP in 2008, 2011 and 2014 for persistent non-compliance with its decisions,⁹³ Ukraine enacted the above-mentioned EIA provisions in 2016.⁹⁴ Accordingly, the Compliance Committee, having found that the country had adopted the necessary measures to bring its legislation into compliance with the Convention, concluded that the caution should be lifted and that Ukraine’s special rights and privileges under the Convention should not be suspended.⁹⁵

No doubt, a positive result has been achieved. It cannot be overlooked, however, that Ukraine has never abandoned the Bystroe Canal Project and that the case has been pending before the Implementation Committee and the MOP of the Espoo Convention for about eighteen years.

4.3.1 Balancing Conflicting Interests and Supporting the Parties’ Co-operation

The classical bilateral structure of traditional inter-State dispute settlement procedures is lacking under NCMs. The main concern of non-compliance bodies established under MEAs is to prevent non-compliance (or to bring a State back into compliance) with certain treaty obligations, acting in the common interest of all Parties to the MEA. This aim is pursued through a pragmatic approach and a procedure that is mainly characterized by an interactive dialogue, usually based on discussion of data, persuasion and international assistance for capacity building.⁹⁶

Indeed, the interactive dialogue promoted by the Espoo Convention’s monitoring bodies in the Bystroe Canal Project case was based on the findings of the Espoo Inquiry Commission⁹⁷ as well as on information provided for and comments made by both Parties. Persuasion has also been exercised through consultations and exchanges of letters between relevant institutions and Ukraine. International assistance has also been provided. First, the MOP requested the Implementation Committee to assist Ukraine in complying with its obligations, notably offering technical advice in bringing Ukraine’s domestic legislation into line with the Convention’s provisions.⁹⁸ Second, the MOP invited both Parties to seek advice from the Secretariat to help them develop bilateral agreements or other arrangements.⁹⁹ Third, international funding and other support to Ukraine for the revision of its national legislation¹⁰⁰ and for bilateral co-operation was also provided through the Secretariat. A similar approach was undertaken under the Aarhus NCP.

It is also worth noting that the promotion of an interactive dialogue does not exclude the adoption of more stringent measures in the context of NCMs, such as the cautions issued by the monitoring bodies of the Aarhus and the Espoo Conventions. Cautions are not expressly envisaged under the latter’s NCP. Nevertheless, their legitimacy can hardly be denied, as they are the result of a negotiating process and a final agreement of all contracting Parties in the context of one of their periodic meetings. Some decisions have also been considered severe, if not confrontational. For instance, as mentioned, Ukraine was urged by the decision of the MOP of the Espoo Convention ‘to repeal without delay the final decision of 28 December 2007 concerning the implementation of the [BCP] and not to implement Phase II of the project before applying fully the provisions of the Convention’.¹⁰¹ Also in this case, however, the MOP’s decision can be considered consistent with general principles of international environmental law and, in particular, with the principles of prevention and precaution.¹⁰²

4.3.2 Integration of the Interests of the Parties Concerned with the Interests of Other States and of the Global Environment 245

Under NCMs, bilateral conflicts are managed by a collective body that interacts with the Parties directly concerned, acting in the common interest of all contracting Parties. Accordingly, it can be assumed that under NCMs dealing with the BCP, not only the interests of Romania, but also those of other Parties to the relevant MEAs have been taken into account or, at least, all the contracting Parties have had the opportunity to represent their interests. The interconnection between different ecosystems has also been safeguarded.¹⁰³

It is also noteworthy (and far from obvious) that the simultaneity of proceedings relating to the BCP under different multilateral treaties has not hindered, but rather strengthened a co-operative approach by promoting joint and complementary actions. Positive co-operation between various institutional systems is evidenced, for instance by the exchange of information on their respective activities;¹⁰⁴ the undertaking of joint fact-finding;¹⁰⁵ and the organization of multilateral consultations, such as the international conference held in Odessa in 2006 involving representatives of States, international institutions and one NGO,¹⁰⁶ and the informal meeting held in Geneva in 2008 by representatives of institutions established under relevant international treaties and MEAs.¹⁰⁷

It should also be highlighted that, contrary to the G/N case, where the International Commission for the Protection of the Danube River (ICPDR) played a limited role, the ICPDR has actively contributed to fostering the dialogue between the Parties directly involved in the Bystroe Canal case and to sharing relevant information with other Parties to the Danube River Protection Convention.¹⁰⁸ An integrated approach has been promoted by the ICPDR, since the BCP has been considered ‘as a basin-wide threat and as a test case for the ICPDR on whether it was able to stand up for the environment and the basin’.¹⁰⁹

With regard to the European Union, which is a party to all the aforementioned treaties,¹¹⁰ except the Ramsar and the World Heritage Conventions, an active engagement was shown, in particular, when the EU promoted bilateral talks with Ukraine (2004–2005) and when it funded a project, consisting of an independent review of Ukraine’s legislation and recommendations to ensure a correct implementation of the Espoo and Aarhus Conventions.¹¹¹

A final remark concerns NGOs, who can be regarded as key players in many respects. The participation of NGOs (or independent individuals with an NGO background within the independent Committees) can significantly strengthen the representation of public interest in the context of NCMs.¹¹² On the one hand, the NGO Environmental People (EPL) filed complaints under the Espoo Convention,¹¹³ the Aarhus Convention,¹¹⁴ the Bonn Convention¹¹⁵ and the Danube River Protection Convention.¹¹⁶ On the other hand, NGOs, including the World Wildlife Fund (WWF) and the Danube Environmental Forum (DEF), actively supported various international monitoring bodies, providing information or technical advice.¹¹⁷

4.3.3 Assessment

As the previous remarks clearly show, the main strength of the Bystroe Canal case is to be found in the continuous monitoring of the situation by competent treaty bodies and their concrete support, as well as in the active involvement of intergovernmental and non-governmental organizations and their mutual co-operation. This was a hard and lengthy process, but, in the end, a significant result was achieved: the reform of Ukraine’s legal system in the field of EIA, providing for the participation of the public in the decision-making process through public hearings, in accordance with Ukraine’s international obligations under the Espoo and the Aarhus Conventions.

The pragmatic and flexible approach characterizing NCMs has also facilitated a dialogue that takes into account both the interests of the Parties directly concerned and the interests of other States. The achievement of this goal has been strengthened through the promotion of inter-institutional co-operation.

A few challenges nonetheless remain. First, one of the major strengths of NCMs that is generally emphasized is their preventive approach, aimed at avoiding the infringement of international environmental obligations and the occurrence of huge or irreversible damage.¹¹⁸ In the present case, it cannot be overlooked that the relevant NCMs were put into motion only after the BCP had already started. Further, monitoring bodies have been apparently more focussed on the consistency of the Ukrainian authorities’ actions with their procedural obligations rather than on the BCP’s conformity with the purposes of the applicable MEAs, which has been considered a ‘delicate issue’.¹¹⁹ As a result, no international proceeding prevented Ukraine from completing its project, which indeed took place before the proceedings had been completed.

Second, the very long time frame that elapsed between the initiation of compliance procedures and the enactment of legal measures by Ukraine cannot go unnoticed. Various reasons may explain the length of the process. It has also been contended, however, that Ukraine contributed to the procrastination of international procedures with a view to advancing its project and confronting the international community with a fait accompli.¹²⁰

Third, reliance on NCMs can have negative effects. For instance, some doubts have been expressed with regard to certain measures adopted by the MOP of the Espoo Convention in the Bystroe Canal case. It is in fact unclear whether the caution issued to Ukraine, consisting of ‘repealing without delay’ its final decision of December 2007 and not implementing Phase II of the project ‘meant cancellation [of the BCP] … or not’.¹²¹ Indeed, ambiguity can be fostered by the political character¹²² and the ‘hybrid’ nature of compliance mechanisms. In fact, NCMs ‘have at their disposal a variety of tools that enable them to better tailor their responses to a specific case’,¹²³ being based on ‘combinations of good will, cooperation, political handling of matters, technical expertise and the prudent recourse to incentives and disincentives which include the possibility of declaring non-compliance’.¹²⁴ In the end, however,

[w]hether the combination of all these elements, legal and not, succeeds in obtaining the result desired has to be assessed on a case-by-case basis. The right combination of good will, political finesse, legal and technical expertise, whatever the provisions to be applied, depends on the political situation of the moment and on the quality of the men and women engaged in the proceedings.¹²⁵

4.4 Concluding Remarks

Both the G/N and the Bystroe Canal cases are particularly complex, as the legal and political issues involved are closely interrelated and inextricably linked. It would also be an overly ambitious task to claim to draw overall conclusions in respect of a hypothetical competition between adjudicative bodies and NCMs from the comparative analysis of only two cases. Accordingly, some general remarks will be tentatively developed strictly on the basis of the findings in the previous sections.

The judgment in the G/N case is rightly considered ‘one of the most interesting judgments ever rendered by the International Court of Justice’,¹²⁶ for ‘the outstanding contribution given by the Court to the clarification of core issues of international law’,¹²⁷ in particular the law of treaties, the law of international responsibility and their mutual relationship. The same judgment also represented a decisive step in the evolution of international environmental law. The formal recognition of the principle of prevention¹²⁸ and the ‘irruption’ of sustainable development in the jurisprudence of the ICJ¹²⁹ are among the most quoted parts of the judgment. The judgment confirmed the outstanding contribution that may be made to the development of international law through the case law of the Court. It should also be acknowledged that the role of the Court is ‘not that of a ground-breaking body but rather that of a stock-taking institution or, to put [it] in [a] somewhat more colorful term, that of being the gate-keeper and guardian of general international law’.¹³⁰

If, however, the same judgment is considered from the perspective of the main function generally ascribed to the Court, the judicial settlement of international disputes, it must be regrettably concluded that this function was not fulfilled. The dispute in the G/N case was decided but not settled by the Court. Obviously, we will never know whether Hungary and Slovakia would have reached an agreement if the Court had provided them with more guidance. However, the ‘condemnation’ of the Parties to negotiation and the absence of supporting indications as to how they might proceed at the legal and technical level contributed to radicalizing the dispute.

More generally, with regard to the integration of the interests of the Parties to the disputes with the interests of other States and of the global environment, the right direction is the one indicated by Judge Weeramantry in his Separate Opinion in the G/N case:

We have entered an era of international law in which international law subserves not only the interests of individual States, but looks beyond them and their parochial concerns to the greater interests of humanity and planetary welfare. In addressing such problems, which transcend the individual rights and obligations of the litigating States, international law will need to look beyond procedural rules fashioned for purely inter partes litigation.¹³¹

It can hardly be said, however, that substantive progress was made in this direction as a result of the ICJ judgment in the G/N case.¹³²

As to the Bystroe Canal case, its main strength lies in the constant promotion of an interactive dialogue and in the effective involvement in the NCMs and in other international monitoring mechanisms of all main stakeholders, including other riparian States, intergovernmental organizations and NGOs. Positive results were also achieved in restoring Ukraine to compliance with some of its international obligations, through substantive reforms within the Ukrainian domestic legal system. In sum, if the issue at hand were considered from the perspective of an abstract competition between international courts and compliance mechanisms, the NCMs would win the game. Innovative mechanisms, like NCPs, appear more effective than traditional tools in managing new causes of conflicts.

A more cautious conclusion might be drawn, however, if attention is focussed on the concrete outcome achieved through the NCMs dealing with the BCP. First, it can hardly be said that legality has been fully restored: Ukraine is still considered to be non-compliant with some of its treaty obligations after decades of discussions and negotiations. Second, and above all, the different approach adopted by the monitoring bodies in assessing Ukraine’s conduct with respect to the implementation of its procedural and substantive obligations may have serious implications for the effectiveness of the entire process.

More generally, if one considers the efficacy of the relevant international procedures in the G/N and the Bystroe Canal cases from the perspective of the protection of the environment as a common concern, there are no real winners but certainly one loser: the ecosystems directly or indirectly affected by the two projects and, notably, the Danube River basin’s and the Danube Delta’s ecosystems.

Against this backdrop, the obvious conclusion that could be drawn would be that very little can be done, within the limits of a decentralized legal order, whatever procedure is adopted to settle an international environmental dispute. The international legal system seems in fact structurally unsuited to cope with the equitable management of shared natural resources, where two fundamental principles, with formal equal rank – territorial sovereignty and sovereign equality – inevitably are in tension or even collide.¹³³ It should also be added that the international legal order lacks effective tools against the lack of political will, the persistent unwillingness of States or their dubious, if not bad faith.¹³⁴ In the end, it cannot be overlooked that international courts and non-compliance bodies dealing with environmental disputes are required to interpret very vague rules and principles, with serious implications both for international courts and NCMs. The former are composed of legal experts, impartial and independent, but they are obviously reluctant to play a law-making role.¹³⁵ The latter are extremely flexible and pragmatic, but their political nature tends to prevail over a legal approach.¹³⁶

Nevertheless, a more optimistic outlook can also be suggested. As much of the academic literature has rightly emphasized, both adjudicative bodies and treaty-based institutions are imperfect, but can play a complementary role in the settlement of international environmental disputes and in restoring legality.¹³⁷ It should also be added that their contribution can be remarkable, provided that international environmental disputes are understood in correct terms, that is, not because of the ‘environmental’ character of the legal rules at issue, but because they relate to the alleged detrimental impact of certain human activities on natural environmental systems.¹³⁸ To this end, some essential conditions will have to be met: all available means under international environmental law must be effectively used; the representation or participation of all key actors in the process must be assured; all possible alternative solutions must be carefully considered with the assistance of independent experts in the evaluation of scientific evidence; and, above all, the public interest in the conservation of the environment as a common concern must be duly taken into account through a genuinely integrated approach.