ISSUE 1 :

Whether the Czech and Slovak republic was entitled to proceed in November 1991 to the provisional
solution and to put into operation?

Arguments In support of Slovakia:

The whole issue can be traced back to the treaty signed by the two countries in the year 1977. As per the
treaty Czechoslovakia was entitled to enforce “Variant C “ which was an alternate solution that was
proposed. Variant C involved a unilateral diversion of the river into the territory of the nation enforcing it.

Impossibility of completion of contract:

In the year 1989 Hungary suspended all its works with respect to the treaty of 1977 at Nagymaros and
Dunakitili. The actions of Hungary could only be safely interpreted as suspension or unwillingness to
comply with the terms of the treaty. It is important to understand that the objective of the treaty was to
create a system that is “ single and indivisible”.therefore the suspension of works by Hungary in the year
1989 made it impossible for the objectives of the treaty to be realized.

Concept of essential interest:

The court while determining the reason behind Hungary’s decision in 1989 looks into whether state of
necessity is a sufficient defence to go against an international obligation. For this the court takes into
account art 33 of the Draft Article on the International Responsibilty of States by International law
commission. The Draft Article defines “essential interest “ as one which if not taken into account would
lead to “grave and imminent peril”. The court clearly holds that reasons given out by Hungary do not
qualify as “essential interest” as there was no “grave or imminent threat “ present.

Principle of approximate application:

Czechoslavakia enforcing “Variant C” does not constitute any wrongdoing. Slovakia stated that since the
other party had suspended their work they did not have a choice but to continue as per “principle of
approximate action”. Slovakia has stated that this solution was the closest to the original as much as
possible.