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This case raises a rich array of environmentally related legal issues. A discussion of
some of them is essential to explain my reasons for voting as 1 have in this very
difficult decision. Three issues on which 1 wish to make some observations,
supplementary to those of the Court, are the role played by the principle of sustainable
development in balancing the competing demands of development and environmental
protection; the protection given to Hungary by what 1 would describe as the principle
of continuing environmental impact assessment; and the appropriateness of the use of
inter partes legal principles, such as estoppel, for the resolution of problems with an
erga omnes connotation such as environmental damage.
THE CONCEPT OF SUSTAINABLE DEVELOPMENT
Since sustainable development is a principle fundamental to the determination of the
competing considerations in this case, and since, although it has attracted attention
only recently in the literature of international law, it is likely to play a major role in
determining important environmental disputes of the future, it calls for consideration
in some detail. Moreover, this is the first occasion on which it has received attention
in the jurisprudence of this Court.
When a major scheme, such as that under consideration in the present case, is planned
and implemented, there is always the need to weigh considerations of development
against environmental considerations, as their underlying juristic bases – the right to
development and the right to environmental protection – are important principles of
current international law.
In the present case we have, on the one hand, a scheme which, even in the attenuated
form in which it now remains, is important to the welfare of Slovakia and its people,
who have already strained their own resources and those of their predecessor State to
the extent of over two billion dollars to achieve these benefits. Slovakia, in fact,
argues that the environment would be improved through the operation of the Project
as it would help to stop erosion of the river bed, and that the scheme would be an
effective protection against floods. Further, Slovakia has traditionally been short of
electricity, and the power generated would be important to its economic development.
Moreover, if the Project is halted in its tracks, vast structural works constructed at
great expense, even prior to the repudiation of the Treaty, would be idle and
1 Only relevant footnotes are included in this excerpt.
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unproductive, and would pose an economic and environmental problem in
themselves.
On the other hand, Hungary alleges that the Project produces, or is likely to produce,
ecological damage of many varieties, including harm to river bank fauna and flora,
damage to fish breeding, damage to surface water quality, eutrophication, damage to
the groundwater régime, agriculture, forestry and soil, deterioration of the quality of
drinking water reserves, and sedimentation. Hungary alleges that many of these
dangers have already occurred and more will manifest themselves, if the scheme
continues in operation. In the material placed before the Court, each of these dangers
is examined and explained in considerable detail.
How does one handle these considerations? Does one abandon the Project altogether
for fear that the latter consequences might emerge? Does one proceed with the
scheme because of the national benefits it brings, regardless of the suggested
environmental damage? Or does one steer a course between, with due regard to both
considerations, but ensuring always a continuing vigilance in respect of
environmental harm? It is clear that a principle must be followed which pays due
regard to both considerations. 1s there such a principle, and does it command
recognition in international law? 1 believe the answer to both questions is in the
affirmative. The principle is the principle of sustainable development and, in my
view, it is an integral part of modern international law. It is clearly of the utmost
importance, both in this case and more generally.
To hold that no such principle exists in the law is to hold that current law recognizes
the juxtaposition of two principles which could operate in collision with each other,
without providing the necessary basis of principle for their reconciliation. The
untenability of the supposition that the law sanctions such a state of normative
anarchy suffices to condemn a hypothesis that leads to so unsatisfactory a result. Each
principle cannot be given free rein, regardless of the other. The law necessarily
contains within itself the principle of reconciliation. That principle is the principle of
sustainable development. This case offers a unique opportunity for the application of
that principle, for it arises from a Treaty which had development as its objective, and
has been brought to a standstill over arguments concerning environmental
considerations.
(a) Development as a Principle of lnternational Luw
Article 1 of the Declaration on the Right to Development, 1986, asserted that “The
right to development is an inalienable human right.” This Declaration had the
overwhelming support of the international community and has been gathering strength
since then. Principle 3 of the Rio Declaration, 1992, reaffirmed the need for the right
to development to be fulfilled.
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“Development” means, of course, development not merely for the sake of
development and the economic gain it produces, but for its value in increasing the
sum total of human happiness and welfare. That could perhaps be called the first
principle of the law relating to development.
To the end of improving the sum total of human happiness and welfare, it is important
and inevitable that development projects of various descriptions, both minor and
major, will be launched from time to time in al1 parts of the world.
(b) Environmental Protection as a Principle of Internutionul Law
The protection of the environment is likewise a vital part of contemporary human
rights doctrine, for it is a sine qua non for numerous human rights such as the right to
health and the right to life itself. It is scarcely necessary to elaborate on this, as
damage to the environment can impair and undermine al1 the human rights spoken of
in the Universal Declaration and other human rights instruments.
While, therefore, al1 peoples have the right to initiate development projects and enjoy
their benefits, there is likewise a duty to ensure that those projects do not significantly
damage the environment.
(c) Sustainable Development as a Principle of International Law
After the early formulations of the concept of development, it has been recognized
that development cannot be pursued to such a point as to result in substantial damage
to the environment within which it is to occur. Therefore, development can only be
prosecuted in harmony with the reasonable demands of environmental protection.
Whether development is sustainable by reason of its impact on the environment will,
of course, be a question to be answered in the context of the particular situation
involved.
It is thus the correct formulation of the right to development that that right does not
exist in the absolute sense, but is relative always to its tolerance by the environment.
The right to development as thus refined is clearly part of modern international law. It
is compendiously referred to as sustainable development.
The concept of sustainable development can be traced back, beyond the Stockholm
Conference of 1972, to such events as the Founex meeting of experts in Switzerland
in June 1971; the conference on environment and development in Canberra in 1971;
and United Nations General Assembly resolution 2849 (XXVI). It received a
powerful impetus from the Stockholm Declaration which, by Principle 11, stressed
the essentiality of development as well as the essentiality of bearing environmental
considerations in mind in the developmental process. Moreover, many other
Principles of that Declaration provided a setting for the development of the concept of
sustainable development and more than onethird of the Stockholm Declaration related
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to the harmonization of environment and development’. The Stockholm Conference
also produced an Action Plan for the Human Environment.
Whether in the field of multilateral treaties2
, international declarations3
; the
foundation documents of international organizations4; the practices of international
financial institutions5; regional declarations and planning document6; or State
practice7, there is a wide and general recognition of the concept.
The principle of sustainable development is thus a part of modern international law by
reason not only of its inescapable logical necessity, but also by reason of its wide and
general acceptance by the global community.
2 For example, the United Nations Convention to Combat Desertification (The United Nations
Convention to Combat Desertification in those Countries Experiencing Serious Droughts andlor
Desertification, Particularly in Africa). 1994, Preamble, Art. 9 (1); the United Nations Framework
Convention on Climate Change, 1992 (ILM. 1992, Vol. XXXI, p. 849. Arts. 2 and 3); and the
Convention on Biological Diversity (ILM, 1992. Vol. XXXI, p. 818, Preamble, Arts. I and 10 –
“sustainable use of biodiversity”). 3 For example, the Rio Declaration on Environment and Development, 1992, emphasizes sustainable
development in several of its Principles (e.g., Principles 4, 5, 7, 8, 9, 20, 21, 22. 24 and 27 refer
expressly to “sustainable development” which can be described as the central concept of the entire
document); and the Copenhagen Declaration, 1995 (paras. 6 and 8). following on the Copenhagen
World Summit for Social Development, 1995.
4 For example, the North American Free Trade Agreement (Canada, Mexico, United States) (NAFTA,
Preamble, ILM, 1993. Vol. XXXII, p. 289); the World Trade Organization (WTO) (paragraph 1 of the
Preamble of the Marrakesh Agreement of 15 April 1994, establishing the World Trade Organization,
speaks of the “optimal use of the world’s resources in accordance with the objective of sustainable
development” – ILM, 1994. Vol. XXXIII. pp. 1143-1 144); and the European Union (Art. 2 of the
ECT).
5 For example, the World Bank Group, the Asian Development Bank. the African Development Bank,
the Inter-American Development Bank, and the European Bank for Reconstruction and Development
al1 subscribe to the principle of sustainable development. Indeed, since 1993, the World Bank has
convened an annual conference related to advancing environmentally and socially sustainable
development (ESSD).
6 For example, the Langkawi Declaration on the Environment, 1989, adopted by the “Heads of
Government of the Commonwealth representing a quarter of the world’s population” which adopted
“sustainable development” as its central theme; Ministerial Declaration on Environmentally Sound and
Sustainable Development in Asia and the Pacific, Bangkok, 1990 (doc. 38a. p. 567); and Action Plan
for the Protection and Management of the Marine and Coastal Environment of the South Asian Seas
Region. 1983 (para. 10: “sustainable, environmentally sound development”). 7 For example, in 1990. the Dublin Declaration by the European Council on the Environmental
Imperative stated that there must be an acceleration of effort to ensure that economic development in
the Community is “sustainable and environmentally sound” (Bulletin of’ the Europeun Cornmuniries, 6,
1990, Ann. II. p. 18). It urged the Community and Member States to play a major role to assist
developing countries in their efforts to achieve “long-term sustainable development” (ibid., p. 19). It
said, in regard to countries of Central and Eastern Europe, that remedial measures must be taken “to
ensure that their future economic development is sustainable” (ibid.).
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The concept has a significant role to play in the resolution of environmentally related
disputes. The components of the principle come from well-established areas of
international law – human rights, State responsibility, environmental law, economic
and industrial law, equity, territorial sovereignty, abuse of rights, good
neighbourliness – to mention a few. It has also been expressly incorporated into a
number of binding and far-reaching international agreements, thus giving it binding
force in the context of those agreements. It offers an important principle for the
resolution of tensions between two established rights. It reaffirms in the arena of
international law that there must be both development and environmental protection,
and that neither of these rights can be neglected.
The general support of the international community does not of course mean that each
and every member of the community of nations has given its express and specific
support to the principle – nor is this a requirement for the establishment of a principle
of customary international law.
As Brierly observes:
“lt would hardly ever be practicable, and al1 but the strictest of positivists admit that it is not
necessary, to show that every state has recognized a certain practice, just as in English law the
existence of a valid local custom or custom of trade can be established without proof that every
individual in the locality, or engaged in the trade, has practised the custom. This test of general
recognition is necessarily a vague one; but it is of the nature of customary law, whether national
or international . . .”8
Evidence appearing in international instruments and State practice (as in development
assistance and the practice of international financial institutions) likewise amply
supports a contemporary general acceptance of the concept.
Recognition of the concept could thus, fairly, be said to be worldwide.
(d) The Need for International Law to Druw upon the WorldS Diversity of
Cultures in Hurmonizing Development and Environmental Protection
In drawing into international law the benefits of the insights available from other
cultures, and in looking to the past for inspiration, international environmental law
would not be departing from the traditional methods of international law, but would,
in fact, be following in the path charted out by Grotius. Rather than laying down a set
of principles a priori for the new discipline of international law, he sought them also a
posteriori from the experience of the past, searching through the whole range of
cultures available to him for this purpose ‘? From them, he drew the durable principles
which had weathered the ages, on which to build the new international order of the
future. Environmental law is now in a formative stage, not unlike international law in
8 J. Brierly, The Law of Nations, 6th ed., 1963. p. 61
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its early stages. A wealth of past experience from a variety of cultures is available to
it. It would be pity indeed if it were left untapped merely because of attitudes of
formalism which see such approaches as not being entirely de rigueur.
1 cite in this connection an observation of Sir Robert Jennings that, in taking note of
different legal traditions and cultures, the International Court (as it did in the Western
Sahara case):
“was asserting, not negating, the Grotian subjection of the totality of
international relations to international law. It seems to the writer, indeed, that at
the present juncture in the development of the international legal system it may
be more important to stress the imperative need to develop international law to
comprehend within itself the rich diversity of cultures, civilizations and legal
traditions . . .”9 law, it needs to be multi-disciplinary, drawing from other
disciplines such as history, sociology, anthropology, and psychology such
wisdom as may be relevant for its purpose.
It is in this spirit that 1 approach a principle which, for the first time in its
jurisprudence, the Court is called upon to apply – a principle which will assist in the
delicate task of balancing two considerations of enormous importance to the
contemporary international scene and, potentially, of even greater importance to the
future.
(e) Some Wisdom from the Past Relating to Sustainable Development
There are some principles of traditional legal systems that can be woven into the
fabric of modern environmental law. They are specially pertinent to the concept of
sustainable development which was well recognized in those systems. Moreover,
several of these systems haveparticular relevance to this case, in that they relate to the
harnessing of streams and rivers and show a concern that these acts of human
interference with the course of nature should always be conducted with due regard to
the protection of the environment. In the context of environmental wisdom generally,
there is much to be derived from ancient civilizations and traditional legal systems in
Asia, the Middle East, Africa, Europe, the Americas, the Pacifie, and Australia – in
fact, the whole world. This is a rich source which modern environmental law has left
largely untapped.
I shall start with a system with which I am specially familiar, which also happens to
have specifically articulated these two needs – development and environmental
protection – in its ancient literature. I refer to the ancient irrigation-based civilization
9 Sir Robert Y. Jennings, “Universal International Law in a Multicultural World”, in International Law
and the Grotiun Heritage: A Cornmernorative Colloquiurn on the Occasion of the Fourth Centrnary of
the Birth of Hugo Grotius. edited and published by the T.M.C. Asser Institute, The Hague, 1985, p. 195
19
of Sri Lanka. It is a system which, while recognizing the need for development and
vigorously implementing schemes to this end, at the same time specifically articulated
the need for environmental protection and ensured that the technology it employed
paid due regard to environmental considerations. This concern for the environment
was reflected not only in its literature and its technology, but also in its legal system,
for the felling of certain forests was prohibited, game sanctuaries were established,
and royal edicts decreed that the natural resource of water was to be used to the last
drop without any wastage.
Another such environmentally related measure consisted of the “forest tanks” which
were built in the jungle above the village, not for the purpose of irrigating land, but to
provide water to wild animals.
This system of tanks and channels, some of them two thousand years old, constitute in
their totality several multiples of the irrigation works involved in the present scheme.
They constituted development as it was understood at the time, for they achieved in
Toynbee’s words, “the arduous feat of conquering the parched plains of Ceylon for
agriculture. Yet they were executed with meticulous regard for environmenta1
concerns, and showed that the concept of sustainable development was consciously
practised over two millennia ago with much success.
The philosophy underlying this gigantic system which for upwards of two thousand
years served the needs of man and nature alike, was articulated in a famous principle
laid down by an outstanding monarch that “not even a little water that comes from the
rain is to flow into the ocean without being made useful to man””. According to the
ancient chronicles, these works were undertaken “for the benefit of the country”, and
“out of compassion for al1 living creatures”. This complex of irrigation works was
aimed at making the entire country a granary. They embodied the concept of
development par excellence.
Just as development was the aim of this system, it was accompanied by a systematic
philosophy of conservation dating back to at least the third century BC. The ancient
chronicles record that when the King (Devanampiya Tissa, 247-207 BC) was on a
hunting trip (around 223 BC), the Arahat Mahinda, son of the Emperor Asoka of
India, preached to him a sermon on Buddhism which converted the king. Here are
excerpts from that sermon:
“O great King, the birds of the air and the beasts have as equal a right to live
and move about in any part of the land as thou. The land belongs to the people
and al1 living beings; thou art only the guardian of it.”
This sermon, which indeed contained the first principle of modern environmental law
- the principle of trusteeship of earth resources – caused the king to start sanctuaries
for wild animals – a concept which continued to be respected for over twenty
20
centuries. The traditional legal system’s protection of Sauna and flora, based on this
Buddhist teaching, extended well into the eighteenth century.
The sermon also pointed out that even birds and beasts have a right to freedom from
fear.
The notion of not causing harm to others and hence sic utere tuo ut alienum non
laedas was a central notion of Buddhism. It translated well into environmental
attitudes. “Alienum” in this context would be extended by Buddhism to future
generations as well, and to other component elements of the natural order beyond man
himself, for the Buddhist concept of duty had an enormously long reach.
This marked concern with environmental needs was reflected also in royal edicts,
dating back to the third century BC, which ordained that certain primeval forests
should on no account be felled. This was because adequate forest cover in the
highlands was known to be crucial to the irrigation system as the mountain jungles
intercepted and stored the monsoon rains. They attracted the rain which fed the river
and irrigation systems of the country, and were therefore considered vital.
The task of the law is to convert such wisdom into practical terms and the law has
often lagged behind other disciplines in so doing. Happily, for international law, there
are plentiful indications, as recited earlier in this opinion, of that degree of “general
recognition among States of a certain practice as obligatory”10 to give the principle of
sustainable development the nature of customary law.
The foregoing is but one illustrative example of the concern felt by prior legal systems
for the preservation and protection of the environment. There are other examples of
complex irrigation systems that have sustained themselves for centuries, if not
millennia. My next illustration comes from two ancient cultures of sub-Saharan Africa - those of the Sonjo and the Chagga, both Tanzanian tribe…
In relation to concern for the environment generally, examples may be cited from
nearly every traditional system, ranging from Australasia and the Pacific Islands,
through Amerindian and African cultures to those of ancient Europe. When Native
American wisdom, with its deep love of nature, ordained that no activity affecting the
land should be undertaken without giving thought to its impact on the land for seven
generations to when African tradition viewed the human community as threefold –
past, present and future – and refused to adopt a one-eyed vision of concentration on
the present ; when Pacific tradition despised the view of land as merchandise that
could be bought and sold like a common article of commerce, and viewed land as a
living entity which lived and grew with the people and upon whose sickness and death
the people likewise sickened and died; when Chinese and Japanese culture stressed
10 J. Brierly, The Law of Nations, p. 61.
21
the need for harmony with nature; and when Aboriginal custom, while maximizing
the use of al1 species of plant and animal life, yet decreed that no land should be used
by man to the point where it could not replenish itself, varied cultures were reflecting
the ancient wisdom of the human family which the legal systems of the time and the
tribe absorbed, reflected and turned into principles whose legal validity cannot be
denied. Ancient Indian teaching so respected the environment that it was illegal to
cause wanton damage, even to an enemy’s territory in the course of military conflict.
11
This survey would not be complete without a reference also to the principles of
Islamic law that inasmuch as al1 land belongs to God, land is never the subject of
human ownership, but is only held in trust, with all the connotations that follow of
due care, wise management, and custody for future generations. The first principle of
modern environmental law – the principle of trusteeship of earth resources – is thus
categorically formulated in this system.
The formalism of modern legal systems may cause us to lose sight of such principles,
but the time has come when they must once more be integrated into the corpus of the
living law…
By virtue of its representation of the main forms of civilization, this Court constitutes
a unique forum for the reflection and the revitalization of those global legal traditions.
There were principles ingrained in these civilizations as well as embodied in their
legal systems, for legal systems include not merely written legal systems but
traditional legal systems as well, which modern researchers have shown to be no less
legal systems than their written cousins, and in some respects even more sophisticated
and finely tuned than the latter.
Living law which is daily observed by members of the community, and compliance
with which is so axiomatic that it is taken for granted, is not deprived of the character
of law by the extraneous test and standard of reduction to writing. Writing is of course
useful for establishing certainty, but when a duty such as the duty to protect the
environment is so well accepted that al1 citizens act upon it, that duty is part of the
legal system in question.
(f) Traditional Principles that can assist in the Development of Modern
Environmental Law
As modern environmental law develops, it can, with profit to itself, take account of
the perspectives and principles of traditional systems, not merely in a general way, but
with reference to specific principles, concepts, and aspirational standards.
11 Nagendra Singh, Humun Rights and the Future of’ Mankind, 1981, p. 93.
22
Among those which may be extracted from the systems already referred to are such
far-reaching principles as the principle of trusteeship of earth resources, the principle
of intergenerational rights, and the principle that development and environmental
conservation must go hand in hand. Land is to be respected as having a vitality of its
own and being integrally linked to the welfare of the community. When it is used by
humans, every opportunity should be afforded to it to replenish itself. Since flora and
fauna have a niche in the ecological system, they must be expressly protected.
There is a duty lying upon al1 members of the community to preserve the integrity
and purity of the environment.
Natural resources are not individually, but collectively, owned, and a principle of their
use is that they should be used for the maximum service of people. There should be
no waste, and there should be a maximization of the use of plant and animal species,
while preserving their regenerative powers. The purpose of development is the
betterment of the condition of the people.
Most of them have relevance to the present case, and al1 of them can greatly enhance
the ability of international environmental law to cope with problems such as these if
and when they arise in the future. There are many routes of entry by which they can
be assimilated into the international legal system, and modern international law would
only diminish itself were it to lose sight of them – embodying as they do the wisdom
which enabled the works of man to function for centuries and millennia in a stable
relationship with the principles of the environment. This approach assumes increasing
importance at a time when such a harmony between humanity and its planetary
inheritance is a prerequisite for human survival.
Sustainable development is thus not merely a principle of modern international law. It
is one of the most ancient of ideas in the human heritage. Fortified by the rich insights
that can be gained from millennia of human experience, it has an important part to
play in the service of international law.
B. THE PRINCIPLE OF CONTINUING ENVIRONMENTAL IMPACT
ASSESSMENT
(a) The Principle of Continuing Environmental Impact Assessment
Environmental Impact Assessment (EIA) has assumed an important role in this case.
In a previous opinion12 I have had occasion to observe that this principle was
gathering strength and international acceptance, and had reached the level of general
recognition at which this Court should take notice of it.
13
12 Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s
Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case. I.C.J. Reports
23
I wish in this opinion to clarify further the scope and extent of the environmental
impact principle in the sense that environmental impact assessment means not merely
an assessment prior to the commencement of the project, but a continuing assessment
and evaluation as long as the project is in operation. This follows from the fact that
EIA is a dynamic principle and is not confined to a pre-project evaluation of possible
environmental consequences. As long as a project of some magnitude is in operation,
EIA must continue, for every such project can have unexpected consequences; and
considerations of prudence would point to the need for continuous monitoring.
The greater the size and scope of the project, the greater is the need for a continuous
monitoring of its effects, for EIA before the scheme can never be expected, in a
matter so complex as the environment, to anticipate every possible environmental
danger.
In the present case, the incorporation of environmental considerations into the Treaty
by Articles 15 and 19 meant that the principle of EIA was also built into the Treaty.
These provisions were clearly not restricted to EIA before the project commenced, but
also included the concept of monitoring during the continuance of the project…
Environmental law in its current state of development would read into treaties which
may reasonably be considered to have a significant impact upon the environment, a
duty of environmental impact assessment and this means also, whether the treaty
expressly so provides or not, a duty of monitoring the environmental impacts of any
substantial project during the operation of the scheme.
EIA, being a specific application of the larger general principle of caution, embodies
the obligation of continuing watchfulness and anticipation.
(b) The Principle of Contemporaneity in the Application of Environmental
Norms
This case concerns a treaty that was entered into in 1977. Environmenta1 standards
and the relevant scientific knowledge of 1997 are far in advance of those of 1977. As
- p. 344. See, also, Legality of the Use by a State of Nucleur Weapons in Armed Conflict, 1. C. J.
Reports 1996, p. 140.
13 Major international documents recognizing this principle (first established in domestic law under the
1972 National Environmental Protection Act of the United States) are the 1992 Rio Declaration
(Principle 17); United Nations General Assembly resolution 2995 (XXVII), 1972; the 1978 UNEP
Draft Principles of Conduct (Principle 5); Agenda 21 (paras. 7.41 (h) and 8.4); the 1974 Nordic
Environmental Protection Convention (Art. 6); the 1985 EC Environmental Assessment Directive (Art.
3); and the 1991 Espoo Convention. The status of the principle in actual practice is indicated also by
the fact that multilateral development banks have adopted it as an essential precaution (World Bank
Operational Directive 4.00).
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the Court has observed, new scientific insights and a growing awareness of the risks
for mankind have led to the development of new norms and standards:
“Such new norms have to be taken into consideration, and such new standards
given proper weight, not only when States contemplate new activities but also
when continuing with activities begun in the past.” (Para. 140.)
If the Treaty was to operate for decades into the future, it could not operate on the
environmental norms as though they were frozen in time when the Treaty was entered
into. This inter-temporal aspect of the present case is of importance to al1 treaties
dealing with projects impacting on the environment. Unfortunately, the Vienna
Convention offers very little guidance regarding this matter which is of such
importance in the environmental field. The provision in Article 3 1, paragraph 3 ( c ) ,
providing that “any relevant rules of international law applicable in the relations
between the parties” shall be taken into account, scarcely covers this aspect with the
degree of clarity requisite to so important a matter.
Environmental concerns are live and continuing concerns whenever the project under
which they arise may have been inaugurated. It matters little that an undertaking has
been commenced under a treaty of 1950, if in fact that undertaking continues in
operation in the year 2000. The relevant environmental standards that will be
applicable will be those of the year 2000.
As this Court observed in the Namibia case, “an international instrument has to be
interpreted and applied within the framework of the entire legal system prevailing at
the time of the interpretation” (Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) notwithstanding Security
Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 31, para.
53), and these principles are “not limited to the rules of international law applicable at
the time the treaty was concluded”14.
Environmental rights are human rights. Treaties that affect human rights cannot be
applied in such a manner as to constitute a denial of human rights as understood at the
time of their application. A Court cannot endorse actions which are a violation of
human rights by the standards of their time merely because they are taken under a
treaty which dates back to a period when such action was not a violation of human
rights.
Support for this proposition can be sought from the opinion of Judge Tanaka in South
West Africa, when he observed that a new customary law could be applied to the
interpretation of an instrument entered into more than 40 years previously (I.C.J.
Reports 1966, pp. 293-294). The ethical and human rights related aspects of
14 Oppenheim’s International Law, R. Y. Jennings and A. Watts (eds.), 1992, p. 1275.
25
environmental law bring it within the category of law so essential to human welfare
that we cannot apply to today’s problems in this field the standards of yesterday.
Judge Tanaka reasoned that a party to a humanitarian instrument has no right to act in
a manner which is today considered inhuman, even though the action be taken under
an instrument of 40 years ago. Likewise, no action should be permissible which is
today considered environmentally unsound, even though it is taken under an
instrument of more than 20 years ago.
(c) Is it Appropriate to Use the Rules of Inter Partes Litigation to Determine Erga
Omnes Obligations?
An important conceptual problem arises when, in such a dispute inter partes, an issue
arises regarding an alleged violation of rights or duties in relation to the rest of the
world. The Court, in the discharge of its traditional duty of deciding between the
parties, makes the decision which is in accordance with justice and fairness between
the parties. The procedure it follows is largely adversarial. Yet this scarcely does
justice to rights and obligations of an erga omnes character – least of al1 in cases
involving environmental damage of a far-reaching and irreversible nature. I draw
attention to this problem as it will present itself sooner or later in the field of
environmental law, and because (though not essential to the decision actually reached)
the facts of this case draw attention to it in a particularly pointed form.
…Inter partes adversarial procedures, eminently fair and reasonable in a purely inter
partes issue, may need reconsideration in the future, if ever a case should arise of the
imminence of serious or catastrophic environmental danger, especially to parties other
than the immediate litigants.
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.
When we enter the arena of obligations which operate erga omnes rather than inter
partes, rules based on individual fairness and procedural compliance may be
inadequate. The great ecological questions now surfacing will cal1 for thought upon
this matter. International environmental law will need to proceed beyond weighing the
rights and obligations of parties within a closed compartment of individual State selfinterest, unrelated to the global concerns of humanity as a whole.
