DANUBE DAM CASE (Hungary v Slovakia) 37 ILM 162 (1998)

In 1977, The Treaty between the Hungarian People’s Republic and the Czechoslovak Socialist Republic
concerning the Construction and Operation of the Gabcíkovo-Nagymaros System of Locks was
concluded on 16 September 1977.The treaty was concluded to facilitate the construction of dams on the
Danube River. It addressed broad utilization of the natural resources of the Danube between Bratislava
and Budapest, representing two hundred of the River’s two thousand eight hundred and sixty kilometers.
Intense criticism of the construction at Nagymaros centered upon endangerment of the environment and
uncertainty of continued economic viability. This growing opposition engendered political pressures upon
the Hungarian Government. After initiating two Protocols, primarily concerned with timing of construction,
Hungary suspended works at Nagymaros on 21 July 1989 pending further environmental studies. In
response, Czechoslovakia carried out unilateral measures. Hungary then claimed the right to terminate
the treaty, at which point the dispute was submitted to the International Court of Justice. Hungary also
submitted that it was entitled to terminate the treaty on the ground that Czechoslovakia had violated
Articles of the Treaty by undertaking unilateral measures, culminating in the diversion of the Danube.
Slovakia became a party to the 1977 Treaty as successor to Czechoslovakia.

On 19 May 1992 Hungary purported to terminate the 1977 Treaty as a consequence of Czechoslovakia’s
refusal to suspend work during the process of mediation. As the Treaty itself did not feature a clause
governing termination, Hungary proffered five arguments to validate its actions: a state of necessity,
supervening impossibility of performance, fundamental change of circumstances, material breach and the
emergence of new norms of international environmental law. Slovakia contested each of these bases.

The Court easily dismissed Hungary’s first claim, simply stating that a state of necessity is not a ground
for termination. Even if a state of necessity is established, as soon as it ceases to exist treaty obligations
automatically revive.

The doctrine of impossibility of performance is encapsulated in Article 61 of the Vienna Convention on the
Law of Treaties, which requires the “permanent disappearance or destruction of an object indispensable
for the execution of the treaty”. In this case, the legal regime governing the Gabcíkovo-Nagymaros Project
did not cease to exist. Articles 15, 19 and 20 of the 1977 Treaty provided the means through which works
could be readjusted in accordance with economic and ecological imperatives. Furthermore, Article 61(2)
of the Vienna Convention on the Law of Treaties precludes application of the doctrine where the
impossibility complained of is the result of a breach by the terminating Party. If the joint investment had
been hampered to a point where performance was impossible, it was a consequence of Hungary’s
abandonment of works.

Article 62 of the Vienna Convention on the Law of Treaties codifies international law in respect of
fundamental change of circumstances and treaty relations. Hungary submitted that the 1977 Treaty was
originally intended to be a vehicle for socialist integration. Fundamental changes cited were the
displacement of a “single and indivisible operational system” by a unilateral scheme; the emergence of
both States into a market economy; the mutation of a framework treaty into an immutable norm; and the
transformation of a treaty consistent with environmental protection into “a prescription for environmental
disaster”. The Court held that although political changes and diminished economic viability were relevant
to the conclusion of a treaty, they were not so closely linked with the object and purpose of the 1977
Treaty so as to constitute an essential basis of the consent of the Parties. New developments in the
efficacy of environmental knowledge were not unforeseen by the Treaty and cannot be said to represent a
fundamental change. The Court did not consider whether the emergence of new environmental norms
would catalyze the application of Article 62 in a situation where the terms of a treaty stand abhorrent to
new norms.

Hungary claimed that Variant C materially breached Articles 15, 19 and 20 of the 1977 Treaty, concerning
the protection of water quality, the preservation of nature and guardianship of fishing interests. Article
60(3) of the Vienna Convention on the Law of Treaties recognizes material breach of a treaty as a ground
for termination on the part of the injured State. Extending its reasoning on the principle of approximate
application, the Court held that a material breach only occurred upon the diversion of the Danube. As
Czechoslovakia dammed the Danube after 19 May 1992, Hungary’s purported termination was premature
and thus invalid.

As its final basis for the justification of termination, Hungary advocated that, pursuant to the precautionary
principle in environmental law, the obligation not to cause substantive damage to the territory of another
State had evolved into an obligation erga omnes (sic utere tuo ut alienum non laedas). Slovakia
countered this argument with the claim that there had been no intervening developments in international
environmental law that gave rise to jus cogens norms that would override provisions of the 1977 Treaty.
The Court avoided consideration of these propositions, concluding instead that “these new concerns have
enhanced the relevance of Articles 15, 19 and 20”. Given that international environmental law is in its
formative stages, it is unfortunate that the International Court of Justice did not grasp at this opportunity to
discuss its role in the governance of relations between States. To that end, the Court may have clarified
the controversial application of the sic utere principle to modify notions of unrestricted sovereignty in the
Trail Smelter arbitration.