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Danube Dam Case

Facts: A treaty between the Hungarian Peoples Republic and the Czechoslovak Socialist
Republic regarding the Construction and Operation of Gabciko-Nagymaros System of Locks was
concluded on September 16, 1977. It was concluded for the facilitation of the construction of
dams on Danube River. It was for the broad utilization of the natural resources of the Danube
between Bratislava and Budapest, representing two hundred of the Rivers total 2,816 kilometers.
There was intense criticism of the construction at Nagyramos was due to the endangerment of
the environment and uncertainty of economic sustainability. The growing opposition endangered
political pressures upon the Hungarian Government. After the initiation of two protocols,
concerned with the timing of construction, Hungary suspended works at Nagyramos on July 21
1989 pending further environmental studies.
In response, Czechoslovakia carried out unilateral measures. Hungary then claimed the
right to terminate the treaty and the dispute was submitted to the ICJ. Hungary also claimed that
it was entitle to terminate the treaty on the grounds that Czechoslovakia violated the Articles of
the Treaty by carrying out unilateral measures. Slovakia became successor to Czechoslovakia to
the treaty in 1977.
On may 1992, Hungary moved to terminate the treaty for Czechoslovakias refusal to
suspend works during the process of mediation. Since there was no clause for termination in the
treaty, Hungary presented 5 arguments for its action: (1) state of necessity, (2) supervening
impossibility of performance, (3) fundamental change of circumstances, (4) material breach, and
(5) emergence of new norms in International Law. Slovakia contested all arguments.
ISSUE: Whether the termination of the Treaty by Hungary is valid?
HELD: No.
(1) The ICJ easily dismissed the first claim by Hungary by simply stating that necessity is
not a valid ground for termination as even if a state of necessity is established, as soon as
it ceases to exist, the treaty obligations automatically revive.
(2) The doctrine of impossibility of performance is encapsulated in Art. 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 project did not cease to exist.
(3) In fundamental change of circumstances, the Court held that although political changes
and diminished economic sustainability and viability were relevant to the conclusion of
the treaty, they were not so closely linked with the object and purpose of the 1977 Treaty
so as to constitute an essential basis of te 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.
(4) Material breach only occurred upon the diversion of Danube and Hungarys purported
termination was premature and thus invalid.
(5) Hungary claimed that pursuant to new developments in international law, the obligation
not to cause injury and damage to another state has become an obligation erga omnes.
Slovakia countered that there has been no intervening developments in international

environmental law that would give rise to jus cogens that would supervene their treaty.
The Court avoided consideration of these propositions.