[1] T.O. Elias "The doctrine of intertemporal law" A.J.I.L 1980 Vol. 74 n2 p285-307; and Hugh Thirlway "The Law and Procedure of the International Court of Justice" B.YB.I.L 1989 60 p 1 - 158.
[2] Peter E Nygh & Peter Butt (ed.) Butterworths Concise Australian Legal Dictionary (Butterworths, Sydney (1997)) p 13.
[3] (Hungary v Slovakia) 37 ILM 162 [Hereinafter Danube Dam Case]
[4] The Court said "What might have been a correct application of the law in 1989 or 1992, if the case had been before the Court then, could be a miscarriage of justice if prescribed in 1997" (Danube Dam Case at para 134).
[5] See for instance: W. Friedmann The Changing Structure of International Law (1964) 130-31; H Lauterpacht, The Function of Law in the International Community, (1933) 283-85; G Schwarzenberger, 1 International Law: International Law as Applied by International Courts and Tribunals I, 21-24 (3d ed 1957); R Jennings, The Acquisition of Territory in International Law 28-31 (1963); R Higgins, "Some Observations on the Inter-Temporal Rule in International Law" in J Makarczyk (ed.) Theory of International Law at the Threshold of the 21st Century (Kluwer International: The Hague (1996)) 173-182.
[6] For instance: Maritime Delimitation in the Area between Greenland and Jan Mayen, ICJ Reports 1993, at pp. 131-136, and pp. 161-170 per Separate Opinion of Shahabuddeen.
[7] Aegean Sea Continental Shelf Case (Greece v Turkey) 1978 ICJ Rep 1.
[8] 37 ILM 162 at p. 214.
[9] The term condition is used broadly to encompass the meaning of terms used, the rules and principle of international law, and the nature of international relations.
[10] Sir Gerald Fitzmaurice, "The Law and Procedure of the International Court of Justice" British Yearbook of International Law (1953) Vol. 30 No 1 p 5.
[11] The best and most prominent example of this is Judge Huber in the Island of Palmas Case (Netherlands v U.S.) (1928) Permanent Court of Arbitration, 2 RIAA 829.
[12] The word treaty is used generically as including any bilateral or multilateral agreements covered by the Vienna Convention on the Law of Treaties 1969 (1969) 8 ILM 679.
[13] Right of Passage Case (Portugal v India) ICJ Rep 1960 6.
[14] ICJ Reports 1960 at p.37
[15] Permanent Court of Arbitration. Sole Arbitrator: Huber. 2 R I A A 829 at p. 833.
[16] Ibid.
[17] D J Harris Cases and Materials on International Law (Sweet & Maxwell, 5th Edition 1998) at p.190.
[18] In the Danube Dam Case ((1998) 37 ILM 166, at para 46) the ICJ confirmed that Art 61 and 62 reflected customary international law. The Court relied on the following judgments as the basis for the customary law nature of significant provisions of the Vienna Convention: South West Africa Case ICJ Rep 1971; Fisheries Jurisdiction Case (Jurisdiction of the Court) ICJ Rep 1973 18; and the WHO and Egypt Case ICJ Rep 1980, at pp.95-96.
[19] See Supra Text 58
[20] In relation to ius cogens see: Sztucki Ius Cogens and the Vienna Convention of the Law of Treaties (1974); and Rozakis The Concept of Ius Cogens in the Law of Treaties (1976).
[21] Article 53 and 64 of the Vienna Convention on the Law of Treaties 1969. Article 53 of the Vienna Convention, which provides that "A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character".
[22] (1969) 8 ILM 679. See: Detter, Essays on the Law of Treaties (1967); Elias, The Modern Law of Treaties (1974); Reuter, Introduction to the Law of Treaties (2nd ed., 1995, trans. And revised by Mico and Haggenmacher); Rosenne, Developments in the Law of Treaties 1945-1986 (1989); Sinclair, The Vienna Convention on the Law of Treaties (2nd ed, 1984).
[23] International Law Commission, Yearbook of the International Law Commission (1966) II at 199.
[24] Ibid.
[25] International Law Commission, Yearbook of the International Law Commission [1964] I at 34 para 10.
[26] G Fitzmaurice, "The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain Other Points", (1951) 28 B.Yb.I.L. 1. Ian Brownlie agrees with Fitzmaurice that there is no difference between what he calls the principle of actuality (textually) and the principle of ordinary and natural meaning of terms (Ian Brownlie, Principles of Public International Law (Clarendon Press, Oxford 1998). The contents of Article 31 now reflect customary international law: e.g. Maritime Delimitation and Territorial Questions Case (Qatar v Bahrain) (1995) ICJ Rep 6 at 18.
[27] This interpretation is also confirmed by, amongst others, the following important international law text: Robert Jennings and Arthur Watts, Oppenheim's International Law, 9th Ed Vol. I (Longman) 1992, pp.1281-1282.
[28] See for instance: Rights of United States Nationals In Morocco Case (1952) ICJ Rep 176, at p.189; South West Africa Cases, Second Phase (1966) ICJ Reports 6, at p.23; Ambatielos Claim, (1956) ILR 23, at pp.306 & 321; UK-France Continental Shelf Arbitration (1977) ILR 54, at pp.6 & 42 (as regards the effects of a reservation).
[29] Rights of United States Nationals in Morocco (1952) ICJ Rep 176, at pp.189.
[30] ICJ Reports 1960 at p 3.
[31] One of the other key arguments that raised intertemporal issues was that the historical context of the 1928 General Act precluded any possibility that the words territorial status could be interpreted broadly. The Court rejected this argument on the basis that Greece had not produced sufficient evidence supporting its view of the historical context: ICJ Reports 1960 at para 74.
[32] ICJ Reports 1960 at para 77.
[33] Note however that the Court did not use any terms to indicate that it was apply any conception of intertemporal laws.
[34] ICJ Reports 1960 at para 75.
[35] ICJ Rep 1960 at para 77.
[36] The Court had said that "the very wording of reservation (b) itself which treats disputes relating to Greece's "right of sovereignty over its ports and lines of communication" as included in its reservation of disputes relating to its "territorial status". These disputes by their nature related to the interpretation and application of existing treaties rather than to their revision. (ICJ Rep 1960 at para 75)".
[37] ICJ Rep 1960 at para 77.
[38] In its judgment the Court had said that "[A]ccording to this jurisprudence it is indeed clear that in interpreting reservation (b) regard must be paid to the intention of the Greek Government at the time when it deposited its instrument of accession to the General Act; and it was with that jurisprudence in mind that the Court asked the Greek Government to furnish it with any available evidence of explanations of the instrument of accession given at that time" (ICJ Rep 1960 at para 69)
[39] Para 78. Article 17 required the contracting parties to the General Act to submit all disputes with regard to which they "are in conflict as to their respective rights".
[40] ICJ Reports 1966 6 at p.294.
[41] Judgment of the Court, Tyrer Case, 25 April 1978, para 31, publ. Court A, Vol. 26 at pp.15 and 16.
[42] Mabo and Others v Queensland (No 2) (1992) 175 CLR 1 at para
[42] per Brennan J.
[43] UKTS 4 (1919), Cmd 153.
[44] ICJ Reports 1971 at p 28 para 45.
[45] ICJ Reports 1971 at p 31 para 53.
[46] Hugh Thirlway, "The Law and Procedure of the International Court of Justice 1960-1989" B.Yb.I.L. 1989 (16) 1 - 159, at 136-137.
[47] Ibid.
[48] Ibid.
[49] Ibid.
[50] Ibid. 17 Treaty Between the Hungarian People's Republic and the Czechoslovak Socialist Republic concerning the Construction and Operation of the Gabcikovo-Nagymaros System of Locks 1977, 32 ILM 1249.
[51] As to the purpose of the treaty see: Treaty Between the Hungarian People's Republic and the Czechoslovak Socialist Republic concerning the Construction and Operation of the Gabcikovo-Nagymaros System of Locks 1977, 32 ILM 1249; and also Declaration of the Government of the Republic of Hungary on the Termination of the Treaty Concluded Between the People's Republic of Hungary and the Socialist Republic of Czechoslovakia on the Construction and Joint Operation of the Gabcikovo-Nagymaros Barrage System, signed in Budapest on 16 September 1977, 32 ILM 1247 at p.1258.
[52] Declaration of the Government of the Republic of Hungary on the Termination of the Treaty Concluded Between the People's Republic of Hungary and the Socialist Republic of Czechoslovakia on the Construction and Joint Operation of the Gabcikovo-Nagymaros Barrage System., signed in Budapest on 16 September 1977 (1993) 32ILM 1247 at p.1258-1289.
[53] The Czech and Slovak Republics succeeded the Czechoslovak People's Republic on 1 January 1993.
[54] Special Agreement for Submission to the International Court of Justice of the Differences Between the Republic of Hungary and the Slovak Republic Concerning the Gabcikovo-Nagymaros Project, 32 ILM 1293.
[55] For a detailed discussion of the Court's judgment in relation to the law of treaties see: Daniel Reichert-Facilides, "Down the Danube: The Vienna Convention on the Law of Treaties and the Case Concerning the Gabcikovo-Nagymaros Project" International and Comparative Law Quarterly (1998) Vol. 47 pp 837-855.
[56] United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses (1997) ILM 715. For a general discussion of the Court's decision see: Afshin A-Khavari "The Danube Dam Case: The World Court and the Development of Environmental Law" (1998) Asia Pacific Journal of Environmental Law 2 (1997) 201-208; Afshin A-Khavari and Donald R Rothwell "The Danube Dam Case and Its Impact on International Environmental Law" Vol. 22 No. 3 (1998) Melbourne University Law Review 507-536; C Cepelka "The Dispute Over the Gabcikovo-Nagymaros Systems of Locks is Drawing to a Close" Polish Yearbook of International Law 20 (1993) 63-75; P R Williams " International Environmental Dispute Resolution; The Dispute Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia)" Colorado Journal of International Environmental Law and Policy Annual V 9 (1997) 186-195; M Dixon "The Danube Dam Case and International Law. (Case Concerning the Gabcikovo-Nagymaros Project)" Cambridge Law Journal V 57 No 1 (1998) 1-4; P H F Bekker "Case Note: Case Concerning the Nagymaros-Gabcikovo Project" American Journal of International Law V 92 No 2 (1998) 273-278; Alan Boyle "The Gabcikovo-Nagymaros Case: New Law in Old Bottles" (1997) 8 Yearbook of International Environmental Law 13; Charles Bourne "The Case Concerning the Gabcikovo-Nagymaros Project: An Important Milestone in International Water Law (1997) 8 Yearbook of International Law 6; Paulo de Castro "The Judgment in the Case Concerning the Gabcikovo-Nagymaros Project: Positive Signs for the Evolution of the International Water Law" (1997) 8 Yearbook of International Law 21; Jan Klabbers "The Substance of Form: The Case Concerning the Gab Project, Environmental Law, and the Law of Treaties" (1997) 8 Yearbook of International Law 32; Stephen Stex and Gabriel Eckstein "Of Solemn Oaths and Obligations: The Environmental Impact of the ICJ's Decision in the Case Concerning the Gabcikovo-Nagymaros Project" (1997) 8 Yearbook of International Law 41.
[57] Fisheries Jurisdiction Case. ICJ Rep 197, p 63 at para 36.
[58] Alan Boyle "The Gabcikovo-Nagymaros Case: New Law in Old Bottles" (1997) 8 Yearbook of International Environmental Law 13 at 15.
[59] Article 15 states that "[t]he Contracting Parties shall ensure, by the means specified in the joint contractual plan, that the quality of the water in the Danube is not impaired as a result of the construction and operation of the System of Locks." Article 19 states that "[t]he Contracting Parties shall, through the means specified in the joint contractual plan, ensure compliance with the obligations for the protection of nature arising in connection with the construction and operation of the System of Locks." Article 20 requires that '[t]he Contracting Parties, within the framework of national investment, shall take appropriate measures for the protection of fishing interests in conformity with the Danube Fisheries Agreement, concluded at Bucharest on 29 January 1958."
[60] The Court at another point stated that "the Court wishes to point out that newly developed norms of environmental law are relevant for the implementation of the Treaty and that the parties could, by agreement, incorporate them through the application of Articles 15, 19 and 20 of the Treaty" (para 112).
[61] 32 ILM 1247 (1993), at p.1249.
[62] Amongst the specific works of the Gabcikovo system of locks were to be: the Dunakiliti-Hrusov head-water installations, Dunakiliti dam and auxiliary navigation lock, by-pass canal, etc (Art 1 of Treaty Concerning the Construction and Operation of the Gabcikovo-Nagymaros System of Locks, 32 ILM 1247 (1993).
[63] See for instance the dissenting opinion of Judge Ad Hoc Skubiszewski where he argues that the Court uses general law when it said that Hungary did not "forfeit its basic right to an equitable and reasonable sharing of the resources of an international watercourse": 37 ILM 162 at p.239.
[64] See Danube Dam Case 37 ILM 162 at p.234-236 per Judge Vereshchetin, at p.239-241 per Judge Ad Hoc Skubiszewski.
[65] A. E. Boyle, "The Gabcikovo Nagymaros Case: New Law in Old Bottles", Yearbook of International Environmental Law, 13-20.
[66] Paulo Canelas de Castro, "The Judgment in the Case Concerning the Gabcikovo-Nagymaros Project: Positive Signs for the Evolution of International Water Law", Yearbook of International Environmental Law, 21- 31.
[67] Boyle suggest the this tension between equitable and sustainable utilisation was addressed in the Agreement Relating to the Conservation and Management of Straddling Fish Stocks (UN Doc. A/CONF.164/37 (1995), 34 ILM 1547): A. E. Boyle, "The Gabcikovo Nagymaros Case: New Law in Old Bottles", Yearbook of International Environmental Law, 13-20, at p 16-17.
[68] Paulo Canelas de Castro, "The Judgment in the Case Concerning the Gabcikovo-Nagymaros Project: Positive Signs for the Evolution of International Water Law", Yearbook of International Environmental Law, 21-31 at p 22.
[69] Report of the 6th Committee of the International Law Association, UN Doc. A/51/8
[69] (1997) 36 ILM 715.
[70] See the dissenting opinion of Judge Vereshchetin where he said: "Although it is true that 'natural resources have value that is not readily measured by traditional means' (HR, Vol. 1, p. 178, para. 3.170), uncertain long-term economic losses, let alone the mere potential risk of such losses, may not be seen as commensurable with the real and imminent threat of having to write off an investment of such magnitude." (37 ILM 162, 135) Judge Vereshchetin is possibly indicating what may have been the discussion point during the negotiations of drafting the Court's judgment in the Danube Dam Case.
[71] The Court referred to sustainable development as a concept. It said, "[T]his need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development." (para 140)
[72] For the Court's view see para 140. For Judge Weeramantry see: 37 ILM 162 p 214. An obligation to carry out an EIA according to Judge Weeramantry requires "the Parties to take upon themselves an obligation to set up the machinery for continuous watchfulness, anticipation and evaluation at every stage of the project's progress, throughout its period of active operation. (37 ILM 162 at 214)"
[73] He said, "[E]nvironmental 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. (37 ILM 162 p 214)"
[74] 37 ILM 162 at p.213.
[75] In the Danube Dam Case, Judge Weeramantry used the term contemporaneity instead of inter-temporal. In his separate opinion in the case of 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, ICJ Reports 1995 at p.339 - 341, he used the term inter-temporal to refer to the same idea. Referring to the principle of contemporaneity Judge Weeramantry said "[T]his is a principle which supplements the observations just made regarding continuing assessment. It provides the standard by which the continuing assessment is to be made. (37 ILM 162 at p.214)"
[76] 37 ILM 162 at p.215.
[77] 37 ILM 162 at p.215.
[78] 37 ILM 162 at p.215.
[79] 37 ILM 162 at 215. Although at another point he said that environmental law has ethical and human rights related aspects (37 ILM 162 at p.215). By implication he appears to be suggesting that not all environmental laws are also human rights.
[80] 37 ILM 162 at p.215.
[81] ICJ Reports 1966 at p.294.
[82] In the Tyrer Case the Court in reference to the European Convention on Human Rights had said that it is a "living instrument which. . . must be interpreted in the light of present-day conditions" (Judgment of the Court, Tyrer Case, 25 April 1978, at para 31, publ. Court A, Vol. 26 at p.15, 16).
[83] ICJ Reports 1966 at p.244.
[84] He distinguished between the application of a treaty and determining its validity. His arguments in relation to the principle of contemporaneity (or intertemporal law) applied only to the application of treaties. He said "[I]t may also be observed that we are not here dealing with questions of the validity of the Treaty which fall to be determined by the principles applicable at the time of the Treaty, but with the application of the Treaty." (37 ILM 162 at p.215.
[85] See Nagendra Singh, "Sustainable Development as a Principle of International Law", in Paul De Waart, Paul Peters, and Erik Denters, International Law and Development (1988) 1 at p.1-3; and Nagendra Singh, "Foreword" in World Commission on Environmental Development, Environmental Protection and Sustainable Development: Experts Group on Environmental Law of the World Commission on Environmental and Development (1987) 1-4. In relation to this point see also: Günther Handl, "Environmental Security and Global Challenge: The Challenge to International Law" (1990) 1 Yearbook of International Environmental Law 3 at p.24-28.
[86] It cannot be presumed that a norm is first customary law before it takes its characteristics as ius cogens. See for instance: Gennady M. Danilenko, "International Jus Cogens: Issues of Law-Making" Vol. 2 (1991) No. 1 European Journal of International Law pp 42-64.