Author:	Afshin A-Khavari BSc, LLB (NSW), LLM (Syd) Lecturer, Griffith University Faculty of Law
Subjects:	Environmental law -- International (Other articles) International Court of Justice International law (Other articles)
Issue:	Volume 10, Number 4 (December 2003)
Category:	Refereed Articles

Contents:

• Introduction
• A General Theory of Intertemporal Law
  • Validity and Modification of Treaties
  • The Application of Treaties
  • Human Rights and Contemporary Developments
• An Environmental Perspective on the Principle of Intertemporal Law
  • The Danube Dam Decision
  • Validity of the 1977 Treaty
  • General International Law and the Application of the 1977 Treaty
  • Judge Weeramantry and the Danube Dam Dispute
• Conclusion
• Notes

Introduction

1. Agreements between nations do not operate in an environment where international law and relations remain unchanged. With the passage of time legal systems evolve and contracting parties to an international agreement may disagree about a variety of issues that are lex specialis. Twenty years after ratifying a treaty its contracting parties may find themselves disputing the interpretation of its terms. Alternatively one party may argue that customary international law has modified a right that another claims still exists in the agreement between them. Courts and tribunals often have to determine whether a changing legal system has also modified a right or affected the interpretation of a term or right in a treaty. In doing so, they may apply the rules and principles of intertemporal law.

2. Intertemporal law refers to the collective response of international law to temporal disputes. Its rules and principles come from subsystems of international law such as the law of treaties and customary international law. This is similar to international environmental law that relies on norms developed for state responsibility, law of treaties, law of the sea etc., to resolve issues peculiar to the natural environment. Unlike international environmental law however, intertemporal laws have been referred to as adjectival law.[1] This means that its rules and principles deal with practice and procedure (the means by which rights and duties may be declared or enforced), as opposed to substantive law that deals with the actual operation of rights and duties.[2] As adjectival law, the intertemporal laws operate to guide the judge in the interpretation of the substantive law raised in disputes. In the recent International Court of Justice (ICJ) decision of the Case Concerning the Gabcikovo-Nagymaros Project (Danube Dam Case),[3] the importance of the general principle of intertemporal law was emphasised by the Court in a statement that claimed that their misapplication could result in the miscarriage of justice.[4]

3. Academic writings have referred to the theory, doctrine, principle or just rule of intertemporal law when inquiring or examining the procedure used by courts and tribunals to resolve temporal difficulties.[5] The ICJ has not yet directly referred to any of the variety of words used to describe intertemporal laws.[6] For instance, in the Aegean Sea Continental Shelf Case[7] where Greece raised significant temporal questions the Court made no reference to any procedural principles even though it addressed all of Greece's concerns. Judge Weeramantry in his separate opinion in the Danube Dam Case resolved the temporal difficulties raised by the case by directly using what he called the principle of contemporaneity.[8] In this article, the words 'intertemporal law' are intended to refer to situations where judicial institutions resolve temporal disputes between states.

4. Identifying and examining the positive law rules and principles when judicially resolving temporal disputes is naturally more important than what the process is called. For instance, do pre-existing norms or contemporary international law developments apply to disputes relating to human rights instruments? How do judicial institutions deal with environmental disputes that arise simply because the passage of time has created a variety of interpretations for what used to be simple legal rights?

5. The purpose of this article is to argue that contracting parties to international agreements cannot ignore developments in environmental law and science. Although the passage of time cannot be used as an excuse to terminate a treaty, it will affect the nature of obligations that parties owe to each other. To justify these arguments the paper will examine how the Court in the Danube Dam Case dealt with temporal issues raised because of the development in environmental law and science. This is the first time the ICJ has had this opportunity. To highlight the significance of the Danube Dam Case for this area of the law, this article will examine the general theory of intertemporal laws in Part I. To this end, the unique response of the ICJ to temporal disputes arising because of an increased awareness of human rights will also be examined. In Part II, the Court's judgment and the separate opinion of the Vice-President Judge Weeramantry are analysed. Judge Weeramantry, in particular, is explicit in his explanation intertemporal laws and their relevance for environmental issues. The paper concludes that the Danube Dam Case maintained the sanctity of treaties while recognising that contemporary developments in environmental science and law could not be entirely excluded from treaty relationships.

   A General Theory of Intertemporal Law

6. As a general principle, a dispute must be analysed by giving consideration to the conditions under which a state accepted to be bound by a treaty or a right.[9] In 1953 Fitzmaurice noted that:

   In a considerable number of cases, the rights of States (and more particularly of parties to an international dispute) depend or derive from rights, or a legal situation, existing at some time in the past, or on a treaty concluded at some comparatively remote date . . . It can now be regarded as an established principle of international law that in such cases the situation in question must be appraised, and the treaty interpreted, in the light of the rules of international law as they existed at the time, and not as they exist today. In other words, it is not permissible to import into the legal evaluation of a previously existing situation, or of an old treaty, doctrines of modern law that did not exist or were not accepted at the time, and only resulted from subsequent development or evolution of international law.[10]

7. Traditionally, Court's have explicitly raised the temporal aspects of issues when they have been concerned with establishing or maintaining territorial sovereignty.[11] The principle referred to by Fitzmaurice has also been applied more generally in a limited number of circumstances. In this section the general nature of intertemporal laws are spelled out as they can be summated from the available cases. One significant exception to the general principle is the field of human rights. This exception is outlined as it helps to contextualise some of the analysis in Part II relating to environmental issues.

   Validity and Modification of Treaties

8. An important consideration before applying a treaty, is determining its validity.[12] In accordance with the principle of intertemporal law any developments in international law subsequent to the ratification of a treaty are irrelevant for determining the validity of a treaty or rights contained within it. In the Right of Passage Case,[13] the ICJ confirmed this view when it said that the "validity of a treaty concluded as long ago as the last quarter of the eighteenth century, in the conditions then prevailing in the Indian Peninsula, should not be judged upon the basis of practice and procedures which have since developed only gradually".[14]

9. In the Island of Palmas Case, which was one of the first cases to examine the intertemporal element, Judge Huber remarked that 'the act creative of a right' has to be judged by the 'law in force at the time the right arises'.[15] He continued to specify that the existence of that right at the time of the dispute should have followed the evolution of international law.[16] This second element of what has become a legal test has met with extreme opposition and most writers have discredited its immediate meaning. Harris (reflecting the thinking of many other writers), has said that:

   An extension of the doctrine of intertemporal law from a requirement that title must be valid in accordance with the law in force at the time at which it is claimed to have been established to one by which the validity of title must also be constantly updated as the international law bases for title change would, as Jessup suggests, be extremely disruptive.[17]

10. Even though international law developments do not affect the validity of treaties, other changes in the relationship of contracting parties may have a different effect. For instance, according to Article 61 of the Vienna Convention on the Law of Treaties 1969 (Vienna Convention), a treaty can be terminated by one of its contracting parties if an object, which is indispensable for its execution, disappears permanently or is destroyed.[18] As a result, circumstances and laws relevant to the destruction of the object are relevant for establishing the conditions necessary for applying Article 61. The term 'object' is undefined by the Vienna Convention and there are no limits on what could be 'objects' of a treaty.

11. According to Art 62(1) of the Vienna Convention, a fundamental change in circumstances to those existing at the time of the conclusion of a treaty can also affect the validity of a treaty. The necessary conditions for establishing a fundamental change in circumstances are examined below.[19] The developments in international law and the general prevailing conditions can be taken into account in determining whether a treaty is still valid because of a fundamental change in circumstances.

12. Newly developed principles and rules of ius cogens can also affect the validity of treaties.[20] This has been confirmed in many instances and is a clear exception to the application of the principle of intertemporal law to determining the validity of treaties. Any treaty or right inconsistent with a principle or rule of ius cogens is invalid even if it has developed after a treaty has been ratified.[21]

13. The principle of intertemporal law described by Fitzmaurice is also relevant when applying treaties. The application of the general principle and exceptions to it are described and examined next.

    The Application of Treaties

14. The Vienna Convention is relevant for identifying the rules of treaty interpretation.[22] Its drafting history indicates that the International Law Commission (ILC) thought that the interpretation of a treaty in good faith would also deal with the intertemporal issues involved in each case.[23] The ILC therefore rejected a method of interpretation that also spelt out the specific approach to intertemporal issues. The ILC had intended to include Article 69 A in the Vienna Convention, which was to read as follows: "A Treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to each term: (a) In the context of the treaty and in the light of its objects and purposes; and (b) In the light of the rules of general international law in force at the time of its conclusion."[24]

15. The proposed Art 69A (b) would have made circumstances and rules contemporary with an actual dispute irrelevant for interpretation of international agreements. Also, the meaning of concepts and legal terms of art (such as terra nullius) used in a treaty would not evolve with international law unless the Contracting Parties specifically provided that it should. The fact that these considerations were relevant to the rejection of Article 69A(b) in the final draft of the Vienna Convention is reflected in the comments of Jimensez de Arechaga during the meetings of the ILC:

    The intention of the parties should be controlling, and there seemed to be two possibilities as far as that intention was concerned: either they had meant to incorporate in the treaty some legal concepts that would remain unchanged, or if they had no such intention, the legal concept might be subject to change and would then have to be interpreted not only in the context of the instrument, but also within the framework of the entire legal order to which they belonged.[25]

16. Instead of including Article 69A(b) in the Vienna Convention the ILC appears to have left the matter to future jurisprudential developments. The current approach of the Vienna Convention to the interpretation of treaties illustrates this point. Article 31 of the Vienna Convention adopts the textual or 'ordinary meaning of words' approach to treaty interpretation.[26] A term in a treaty finds its meaning within the context in which it appears and in the light of the object and purpose of the treaty itself (Article 31(1)). Agreements and the subsequent treaty practices between contracting parties can also influence the meaning of terms (Article 31(3)(a)-(b)). Article 31(3)(c), stating that "any relevant rules of international law applicable in the relations between the parties", adds to the corpus of materials for use in the interpretation of terms of a treaty. The rules of intertemporal law are hence applicable to treaty interpretation because they fall within those set of rules relevant to the 'relations between' parties to a treaty.[27]

17. The relevance of the intertemporal law for interpretation is in its requirement that the terms of a treaty be given a meaning contemporaneous with the time they were drafted.[28] The ICJ in the following passage from the Rights of United States Nationals in Morocco Case confirmed this:

    The Treaty of 1836 replaced an earlier treaty between the United States and Morocco which was concluded in 1787. The two treaties were substantially identical in terms and Articles 20 and 21 are the same in both. Accordingly, in construing the provisions of Article 20 - and, in particular, the expression "shall have any dispute with each other" - it is necessary to take into account the meaning of the word "dispute" at the times when the two treaties were concluded. For this purpose it is possible to look at the way in which the word "dispute" or its French counterpart was used in the different treaties concluded by Morocco: e.g., with France in 1631 and 1682, with Great Britain in 1721, 1750, 1751, 1760 and 1801. It is clear that in these instances the word was used to cover both civil and criminal consequences. It is also necessary to take into account that, at the times of these two treaties, the clear-cut distinction between civil and criminal matters had not yet been developed in Morocco.' Accordingly, it is necessary to construe the word "dispute", as used in Article 20, as referring both to civil disputes and to criminal disputes, in so far as they relate to breaches of the criminal law committed by a United States citizen or protégé upon another United States citizen or protégé.'[29]

18. The development of the intertemporal law has not however ignored the possibility that contracting parties may use legal or other terms and concepts, that they had intended to evolve with international law. Not all disputes over meaning have to be resolved using circumstances contemporary with the drafting of the treaty. In the Aegean Sea Case,[30] the ICJ had sought to determine if the terms 'territorial status of Greece' had been generically used in Greece's reservations to its accession of the 1928 General Act for the Pacific Settlement of International Disputes (General Act). That is, had the contracting parties intended that terms in the agreement evolve with international law? In that case, Turkey and Greece were in dispute over the continental shelf adjacent to their territories in the Aegean Sea. The ICJ would not have jurisdiction over the dispute in 1960 if the terms 'territorial status' in Greece's reservation included the continental shelf. Amongst other arguments,[31] Greece had asserted that its reservation to the General Act could not apply to disputes over the continental shelf because 'the very idea of the continental shelf was wholly unknown in 1928 when the General Act was concluded, and in 1931 when Greece acceded to the Act'.[32] The issue was whether the intertemporal principle applied to prevent the terms 'territorial status' being interpreted to include the continental shelf.[33] The Court asserted that a generic term must be interpreted in the light of international law developments. It said, "[A]s the nature of the word "status" itself indicates, it was a generic term which in the practice of the time was understood as embracing the integrity and frontiers, as well as the legal regime, of the territory in question".[34]

19. The Court referring more broadly to the reservation said,

    [O]nce it is established that the expression "territorial status of Greece" was used in Greece's instrument of accession as a generic term denoting any matters comprised within the concept of territorial status under general international law, the presumption necessarily arises that its meaning was intended to follow the evolution of the law and to correspond with the meaning attached to the expression by the law in force at any given time.[35]

20. The Court's reasoning process for concluding that a generic term had been used is important in this case. It had come to the conclusion that Greece generically used the words 'territorial status' in its reservation to the General Act by analysing the wording and nature of the instrument.[36] Further, the Court also argued that the General Act was intended to have been of a general kind and to have lasted for a long time and hence a state could not have intended its reservations to be strictly and restrictively interpreted.[37] This meant that the Court did not rely on any other documents to understand Greece's intentions at the time the reservations were made. This is notwithstanding that the Court had requested Greece to produce evidence of its intentions at the time it deposited its reservation to the General Act. [38]

21. In contrast to "generic terms", the Court's approach to general legal concepts was even less aware of the actual intention of the parties using them in the relevant instruments. For instance, the Court agreed with Greece that the word 'right' used in Article 17 of the General Act had to be interpreted generically which meant that its meaning evolved with time.[39] It did this without even considering whether the contracting parties had intended that to be the case. This is either an omission by the Court or an acceptance that certain legal concepts necessarily evolve with the law notwithstanding the intention of states using them in particular instruments.

22. Unlike the exceptions to the principle of intertemporal law discussed above, Courts and tribunals have singled human rights as a subject matter that has to be approached differently. The next section examines this issue. This is important as it is argued later in this paper that a distinctive approach has also been taken for treaties with the environment as their subject and that this is not opposed to the approach taken by judicial bodies to intertemporal disputes.

    Human Rights and Contemporary Developments

23. In various jurisdictions the intertemporal principle has been modified to protect the dignity of human beings. In the South West Africa Cases, Second Phase, Judge Tanaka argued that "[i]n the present case, the protection of the acquired right of the Respondent is not the issue, but its obligations, because the main purposes of the mandate system are ethical and humanitarian. The Respondent has no right to behave in an inhuman way today as well as during these [40] years."40 The European Court of Human Rights in the Tyrer Case approached the European Convention on Human Rights as if it was a living instrument that had to be interpreted in the 'light of present day conditions'.[41] In Australia, Brennan J in Mabo [No 2] similarly reflected Judge Tanaka's concerns when he said, "[w]hatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted."[42]

24. It appears however that judicial bodies have been sympathetic to situations where a dispute is about applying a treaty and not ascertaining its validity. For a human rights treaty to be invalid it still must be inconsistent with a principle or rule of ius cogens or satisfy the criteria in Article 61 and 62 of the Vienna Convention. The discussion in this section is therefore limited to the application of human rights treaties.

25. The ICJ in the Namibia Case had to resolve significant intertemporal issues raised by treaties that directly and indirectly impacted on the human rights of the people in Namibia. The United Nations General Assembly had declared in Resolution 21[45] that South Africa had failed to fulfil its obligations under the mandate for South West Africa / Namibia and had decided, as a result, that the mandate was terminated. Because South Africa had failed to withdraw from Namibia the Security Council in Resolution 276 declared that South Africa's presence in Namibia was illegal. In the Namibia Case the ICJ was asked by the Security Council to give an advisory opinion determining the legal consequences for States of South Africa's continued presence in Namibia. The Court had to decide whether 'C' mandates, developed in accordance with Article 22 of the Covenant of the League of Nations,[43] were in a qualitatively different category to 'A' and 'B' mandates. At the time these mandate systems were developed, 'C' mandates were 'in practical effect not far removed from annexation'.[44]

26. The Court's response, which ignored the drafters intention behind Article 22, appeared to go against the common application of the principle of intertemporal law. It said for instance,

    Mindful as it is of the primary necessity of interpreting an instrument in accordance with the intentions of the parties at the time of its conclusion, the Court is bound to take into account the fact that the concepts embodied in Article 22 of the Covenant - 'strenuous conditions of the modern world' and 'the well-being and development' of the peoples concerned - were not static, but were by definition evolutionary, as also, therefore, was the concept of the 'sacred trust'. The parties to the Covenant must consequently be deemed to have accepted them as such. That is why, viewing the institutions of 1919, the Court must take into consideration the changes which have occurred in the supervening half-century, and its interpretation cannot remain unaffected by the subsequent development of law, through the Charter of the United Nations and by way of customary law.45

27. Thirlway has been highly critical of the Court's approach to Article 22.[46] He has argued that the Court used the evidence before it to ascertain what the intention of the concerned parties "ought to have been" and not what it actually was. His argument was that the Court did not determine as a "fact that the parties to the Covenant contemplated that the concepts in Article 22 should acquire a different content with the development of international law".[47] Also, according to Thirlway the Court failed to produce evidence that the "concepts were at the time regarded as evolutionary".[48]

28. An alternative explanation is that the interpretation of Article 22 was not dependent on the intention of its contracting parties in 1919. This follows only because the 'C' mandate as an incident of its subject matter affected the human rights of the people of Namibia. Unless it was shown to be otherwise, the Court presumed that the Covenant, and Article 22 in particular, was a 'living instruments'. The burden of proving that the meaning of terms used in Article 22 were frozen in time lay with adversaries arguing otherwise. The Court is left however with a wide discretion of deciding which terms have human rights as their subject and to apply this presumption in their favour.

29. Significantly, the Court in the Namibia case also ignored the historical setting behind the creation of 'C' mandates. It did this when it said that

    an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation. In the domain to which the present proceedings relate, the last fifty years, as indicated above, have brought important developments. These developments leave little doubt that the ultimate objective of the sacred trust was the self-determination and independence of the peoples concerned. In this domain, as elsewhere the corpus iuris gentium has been considerably enriched, and this the Court, if it is faithfully to discharge its functions, may not ignore.

    For two reasons, Thirlway was also critical of the Court's approach in this instance. Firstly, for him the "entire legal system prevailing at the time of the interpretation" included the principle of intertemporal law.[49] Secondly, the object of the sacred trust as it was in 1919 could not be changed because of subsequent developments. It could be made clearer but not different.[50]

30. In response to Thirlway's first criticism, the Court would not have been making a circular statement if it thought that the principle of intertemporal law did not apply to treaties that affect human rights directly or as an incident of their subject matter. In relation to his second point, Thirlway is at ease with the possibility that future developments in international law should not modify the scope of preexisting rights and duties even if a group of people would be deprived of their right to self-determination or independence. For the Court however the scope of a right can be enlarged by interpretation consistent with modern developments, if otherwise a group of people would be deprived of their human rights. This is the case if at the time of applying the treaty international law prescribes those basic rights. The Court's reference to 'the entire legal system' as providing the basis for modifying rights is however alarming. This legitimizes the use of non-customary law or treaty norms for interpreting rights. The Court itself used the concept of self-determination to broaden the scope of the mandate when in 1971 it was still arguable whether this right was customary law.

31. Based on the above analysis it would appear that there is judicial history of allowing treaties or rights, which have human rights as a direct or indirect subject matter, to be modified by modern developments in international law. In the next section, this article examines the approach of the Court in the Danube Dam Case to treaties that have the environment as a subject matter. In particular it aims to analyse the extent to which the ICJ allowed treaties and rights that affect the natural environment, to be modified by subsequent developments in international law.

    An Environmental Perspective on the Principle of Intertemporal Law

    The Danube Dam Decision

32. In 1977 Hungary and Czechoslovak People's Republic entered into a treaty to construct a series of locks along the Danube, which for some 140 kilometers forms the common boundary of the two States.17 The main purpose of the project was to construct two hydroelectric power plants.[51] Barrages would be constructed in Gabcikovo, Dunakiliti and Nagymaros. In 1989 Hungary abandoned work on the Nagymaros sector because of intense public pressure arising from an increased awareness of the potential environmental damage of the entire project. Czechoslovakia then proceeded to construct what it called "Variant C" to operate the Gabcikovo barrage. To do this Czechoslovakia built another dam on its territory in Cunovo. This allowed it to divert the waters of the Danube without Hungary's consent. Hungary terminated the 1977 Treaty in May 1992 in response to Czechoslovakia's supposed illegal diversion of the Danube.[52] On 28 June 1993 Hungary and Slovakia[53] signed a Special Agreement submitting their dispute to the ICJ. [54]

33. The Court found that Hungary had illegally terminated the Treaty. Hungary could not satisfy the Court of meeting any of the requirements for terminating a treaty found in the Vienna Convention.[55] Czechoslovakia's construction of Variant C was not illegal, but its diversion of the Danube without Hungary's consent contravened the principle of equitable utilisation of an international river.[56] In relation to their future conduct the Court asked Hungary and Slovakia to renegotiate the Treaty along the guidelines it had set forth in its judgment. In these guidelines, the Court emphasised that environmental concerns had become an important aspect of the project and could not be ignored.

34. The majority of the ICJ in the Danube Dam Case did not explicitly refer to any principles or rules of the intertemporal law. It did however make continuous references to the evolution of environmental law and how it had impacted the treaty relationship of Hungary and Slovakia. It is fair to suggest that it is the first time the Court directly considered environmental issues and the intertemporal aspects of it. In part it had no choice as environmental science had significantly progressed since Hungary and Slovakia had negotiated the 1977 Treaty. Most importantly Judge Weeramantry (Vice President of the ICJ) expressly acknowledged and discussed issues of intertemporal law and applied it to the 1977 Treaty. The Court's assessment of the intertemporal aspects of the dispute is examined in three sections. The first deals with the validity of the 1977 Treaty; the second with the application of the Treaty and the third with general provisions of international law that had changed since the parties ratified the 1977 Treaty.

    Validity of the 1977 Treaty

35. Article 62 of the Vienna Convention acknowledges that certain circumstances under which a treaty was negotiated and signed may with the passage of time change fundamentally. According to the ICJ in the Danube Dam Case a State may question a treaty's validity if it can satisfy the conditions under Art 62, which importantly reflected customary international law.[57] Two conditions must be satisfied before a treaty is voided under Art 62: the circumstances that have changed must, in the first place, have "constituted an essential basis of the consent of the parties to be bound by the treaty" (Article 62(1)(a)); and the "effect of the change is radically to transform the extent of obligations still to be performed under the treaty" (Article 62(1)(b)). In addition, these changes must not have been foreseeable (Article 62 (1)).

36. Hungary had argued that the "progress of environmental knowledge and the development of new norms of prescriptions of international environmental law" had fundamentally changed the circumstances under which the 1977 Treaty had been negotiated (para 103). The Court rejected this argument by simply stating that it "does not consider that new developments in the state of environmental knowledge and of environmental law can be said to have been completely unforeseen" (para 104). In determining validity according to Art 62, the Court appears amenable to taking into account evolving standards and norms. However, on finer examination of its approach to Art 62, it appears unlikely that this will ever happen.

37. The Court interpreted the word 'foreseeable' in Article 62 as meaning that the eventuating events, circumstances, or changes must have been 'completely unforeseeable'. It gave no indication of why 'reasonably' unforeseeable was not enough. Even so, the Court did not even attempt to justify why the changes of the past 20 years were not completely unforeseeable. What is most surprising, however, is the manner in which the Court used Articles 15, 19 and 20 of the 1977 Treaty in its analysis of why the changes were not completely unforeseeable (para 104). The Court said that "the formulation of Articles 15, 19 and 20, designed to accommodate change, made it possible for the parties to take account of such developments and to apply them when implementing those treaty provisions" (para 104). Article 19, which is the most generally worded of the three Articles, required the parties only to "ensure compliance with the obligations for the protection of nature". An obligation to comply with the law is no substitute however for a consideration of whether those changes have been so fundamental that they affected what may have been the intention of the contracting parties.

38. The Court also said that the "changed circumstance advanced by Hungary are, . . not of such a nature, either individually or collectively, that their effect would radically transform the extent of the obligations still to be performed in order to accomplish the project" (para 104). Again, the Court simply made this conclusion without any reference to why changing circumstances had not radically transformed the extent of the Contracting Parties obligations. It is hard to see how changes in environmental law and knowledge in the past 20 years have been so insignificant that the Court did not feel it necessary even to consider the issue in any detail. Surely, principles such as environmental impact assessment, precautionary principle, intergenerational equity, etc had affected the extent of the obligations each party owed to the other. The Court's dismissal of the issue is tantamount to suggesting that a lot more is required before changing circumstances will radically change treaty obligations. However, the question that must be asked is, if the development of environmental knowledge and law in the past 20 years was not sufficiently radical to change obligations in an economic treaty, will it ever be enough? Does this mean that Article 62 is essentially redundant in relation to treaties that affect the environment?

39. It seems that, even though Article 62 allows contemporary developments to be taken into account, the Courts very literal and restrictive interpretation essentially precluded giving any significance to them. The Court itself pointed out that the negative wording of Article 62 precluded a less than restrictive interpretation. However, it was probably more concerned with maintaining the sanctity of treaties than permitting a fundamental change in circumstances, brought about by changes in international environmental law, to affect validity of agreements.

    General International Law and the Application of the 1977 Treaty

40. Notwithstanding the Court's strict approach to determining the validity of treaties, it was more liberal in its opinion about the how it applied and interpreted the terms of the 1977 Treaty. It found that the 1977 Treaty had to operate not 'in static isolation but rather in dynamic conjunction with other rules of and principles of international law relating to . . . environmental protection as they evolve". [58] This meant that developments in international environmental law were still relevant to the dispute to the extent that they influenced the interpretation or determined the scope of terms, rights and obligations found in the 1977 Treaty. The rights and liabilities of the parties in the 1977 Treaty were lex specialis (para 132). Because of Arts 15, 19 and 20 of the 1977 Treaty the Court however noted that the parties would have been responsible to each other even if they had breached rules of general international law that had developed since 1977 (para 106). Nevertheless, it is also clear from the Court's judgment that it would have taken a similar position even if Articles 15, 19 and 20 had not been included in the Treaty.

41. This section of the paper will firstly examine the Court's use of Articles 15, 19 and 20 to integrate developing norms into the treaty relationship between Hungary and Czechoslovakia. It will then examine the basis upon which the Court considered recent developments in international law were made relevant to the dispute without using Arts 15, 19 and 20. Thirdly, this section identifies the nature of the impact that developing norms had on the treaty relationship between Hungary and Czechoslovakia. Lastly it analyses the Court's approach to the interpretation of general international law raised in the context of the construction of Variant C as a countermeasure by the Czech Republic.

42. Articles 15, 19 and 20 of the 1977 Treaty generally required that the Parties protect the environment, water quality and fishing in the Danube and its riparian areas.[59] Article 15, for instance, simply provided that the Parties "ensure compliance with the obligations for the protection of nature". The purpose attributed to these Articles by the Court was for them to permit Hungary and Czechoslovakia to negotiate to "adapt the Joint Contractual Plan to new scientific and legal developments regarding the environment" (para 107).[60] It appears that the Court saw words such as "obligations for the protection of nature" used in Art 15 as a generic term. This meant that the definition and scope of application of the words in Arts 15, 19 and 20 depended on the circumstances of the time they were being interpreted or used. According to the Court, the Parties were bound by Articles 15, 19 and 20 to take account of the evolution of international environmental law and knowledge.

43. Why then, did the Court not refer to the intentions of Hungary and Czechoslovakia in drafting the 1977 Treaty? Surprisingly, the Court does not deduce any evidence or arguments to show that the parties in fact intended the meaning and scope of the terms of the Treaty to evolve. Nor does it look for a specific and limited purpose for Articles 15, 19 and 20. For instance, the Court does not even attempt to evaluate the Joint Contractual Plan to assess how the Parties had in fact interpreted Articles 15, 19 and 20. It is highly likely that the terms used in the Articles were seen by the Court to be by definition evolutionary in their meaning. The Parties, that is, would not have used the words 'compliance with the obligations for the protection of nature" unless they had intended them to account of evolving norms. If this is the reason, no portion of the Court's judgment analyses the terms used in Articles 15, 19 and 20.

44. For the Court it seems highly probable that in 1997 environmental awareness and changing understanding of environmental risks had significantly enhanced the value of Articles 15, 19 and 20 in the dispute. It was probably easy for the Court to have judged in hindsight that the parties had intended the Articles to mean that evolving international environmental law norms had to be taken into account. Alternatively, the Court could simply have thought that, where possible, terms in treaties would be interpreted generically to allow relationships to evolve with an obligation to account for the changing state of environmental law and science.

45. The purpose of the above discussion has been to identify the Court's interpretation of Articles 15, 19 and 20, which had been influenced by the developments of environmental law and science. As a result of the interpretation of these articles, all evolving environmental laws had to be integrated into the treaty relationship between Hungary and Czechoslovakia. Notwithstanding, the Court also indicated that evolving environmental law and scientific knowledge should have been integrated into the treaty relationship even if it had not interpreted these Articles in the way that it did. It said, for instance, referring to the treaty relationship, "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). In relation to environmental risks, the Court also said, "current standards must be taken into consideration." (Para 140)

46. The Court was less clear about the nature of the impact that evolving norms had on the treaty relationship. The Court did not say what 'kinds of norms' had to have been taken into account by the parties. Could new rules of international environmental law have amended express rights found in the Treaty? If so, why would Czechoslovakia or Hungary not be able to decide the nature and kind of the norms and standards that were relevant if the Treaty's rules were lex specialis?

47. The Court indicates for instance, that the Treaty's objectives had changed because of evolving standards. In its preamble the 1977 Treaty had stated that "broad utilization of the natural resources of the Bratislava-Budapest section" was its main objective.[61] The main and only objective of the Treaty, based on its Preamble, was to promote the economic interests of the Parties.[62] In 1997, the Court said that it was "clear that the Project's impact upon, and its implications for, the environment are of necessity a key issue" (para 140). There is no discussion of why this was the case. It is not too far fetched to argue that international environmental law principles, and particularly sustainable development, had expanded the scope of the Treaty's objectives. This is evident from the fact that the Court could have used (but did not) the subsequent treaty relationship of the parties to justify its interpretation of the objectives of the 1977 Treaty. According to Article 31(3)(b) of the Vienna Convention, this would have been a legitimate and proper thing for the Court to do. The treaty relationship of the parties and their disagreements about sustainably developing the system of locks was the subject of the dispute. It is hard to see how the subsequent treaty relationship could have influenced the Court in its interpretation of the Treaty's objectives.

48. It is of further interest that international environmental law principles developed since 1977 had also affected the scope of other principles of general international law that were relevant to the Treaty relationship of Hungary and Czechoslovakia. For instance, the Court had used the principle of equitable utilisation to argue that Variant C was in breach of international law and Czechoslovakia was responsible to Hungary (para 85).[63] It said that, even though Hungary had withdrawn its consent to be bound by the Treaty, it had not "forfeited its basic right to an equitable and reasonable sharing of the resources of an international watercourse"(para 78). The Court went on to consider whether this breach by Czechoslovakia was nevertheless valid as a countermeasure. It had to determine if the damage Hungary had suffered from the operation of Variant C would be proportionate to those Czechoslovakia had incurred by not being able to pursue the Treaty's intended objectives. The Court found in favour of Hungary, although several of the dissenting judgments failed to see how a breach of the principle of equitable utilisation was not proportionate to the injury Czechoslovakia had suffered.[64]

49. Commentators such as Boyle[65] and Paulo de Castro[66] have argued that the Court employed the principle of equitable utilisation in this case in the wider context of sustainable development. Equitable utilisation of a resource does not imply that it should also be sustainable.[67] The principle of equitable utilisation gives environmental considerations only a marginal place.[68] This is consistent with the manner in which it was included in the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses.[69] It is therefore significant that the Court essentially expanded the scope of the principle of equitable utilisation when it required that it also be sustainable. The way the Court did this is explored through the facts below.

50. By diverting the Danube to operate Variant C, Czechoslovakia had deprived Hungary of its right to an equitable and reasonable share of a resource. This act in itself did not make Czechoslovakia's breach disproportionate to Hungary's breach of the Treaty. What was additionally significant, was that the damage to the environment of Hungary was caused by Czechoslovakia's inequitable use of Danube. The Court acknowledged this in the following passage:

    [i]t considers that Czechoslovakia, by unilaterally assuming control of a shared resource, and thereby depriving Hungary of its right to an equitable and reasonable share of the natural resources of the Danube - with the continuing effects of the diversion of these waters on the ecology of the riparian area of the Szigetkoz - failed to respect the proportionality which is required by international law" (para 85).

51. Here, the Court acknowledged Hungary's right to a clean environment and that the equitable utilisation of a joint resource had to take account of that right. Also, the significance of the Court's approach is that in determining proportionality it did not assess in economic terms the actual value of the portion of Hungary's environment that had been damaged. It appears to have assumed that the damage to the riparian area of the Szigetkoz would have been so significant that it did not even have to develop the means for ascertaining its value.[70] The implications of this is that in determining what is an equitable utilisation of a joint resource, damage to the environment has to be avoided as it cannot be simply accounted for in determining the equity of a particular activity. Simply because the environment is likely to be affected a State may as a result claim greater rights in determining the nature of bilateral activities in an international watercourse.

52. In conclusion, although the Court was very strict and restrictive in its opinion about the influence of contemporary developments on the validity of treaties, it took a far more liberal approach to interpreting the terms and scope of rights contained in an agreement. In respect to the interpretation of terms contained in a treaty the Court did not leave a lasting legacy of any sort. It appeared at ease, yet not clear in its approach, as it interpreted Articles 15, 19 and 20 to be generic enough for their meaning to evolve with international environmental law. It appeared to want to point out that Articles 15, 19 and 20 were not necessary for evolving international environmental law norms and standards to have influenced the Treaty relationship. However, the Court left no pointers as to how evolving environmental norms could influence and bind Parties to a treaty. Finally, what appears to have been the clearest outcome from the Court's judgment is that international law norms which bound the parties to a treaty at the time of its drafting do not remain in static isolation of international law developments. The principle of equitable utilisation could not continue to be used by States if this would lead to unsustainable patterns of behaviour.

    Judge Weeramantry and the Danube Dam Dispute

53. Judge Weeramantry (Vice President of the Court) in his separate opinion only addressed the environment-related issues of the Gabcikovo-Nagymaros dispute. In contrast to the Court he found that sustainable development was a principle of customary international law.[71] He also asserted, as did the Court in this instance that the parties had to carry out an environmental impact assessment (EIA).[72] He said that an EIA is compulsory only in the case of projects that "significantly" impact the environment. Also, his conception of an EIA included monitoring the environment during the life of a project. Judge Weeramantry however found the source of these obligations not only in Articles 15, 19 and 20 of the Treaty, but also in environmental law generally.[73] This is important because sustainable development and EIA's did not exist in 1977 when Hungary and Czechoslovakia had ratified the treaty between them.

54. Judge Weeramantry stated that it was 'environmental law in its current state of development' which justified the existence and use of the principle of EIA. The specific criterion for carrying out an EIA was whether the intended project significantly impacted the environment. According to him the principle of EIA is not customary international law. This is made obvious by his statement 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."[74] On the basis that the source of the obligation is environmental law it is also safe to assume that Judge Weeramantry was employing no substantive or procedural principle of general international law. In his judgment he referred to the principle of contemporaneity as the basis upon which an EIA should take into account only contemporary circumstances.[75] On what basis then did Weeramantry find that an EIA was compulsory for treaties that significantly impact the environment? Was it merely the fact that a project could have had a significant impact on the environment? If so what did 'significant' impact mean? Could Judge Weeramantry have applied a similar method and identified a relevance for other environmental principles, such as the precautionary principle and intergenerational equity in the application of the treaty?

55. What is refreshingly clear from Judge Weeramantry's separate opinion is how modern developments in environmental law and science were relevant to treaty relationships. The principle of contemporaneity was relevant both to the EIA requirements as he had described them, and more generally to all treaties that impacted the environment. He said "[T]his inter-temporal aspect of the present case is of importance to all treaties dealing with projects impacting on the environment."[76] The intertemporal aspect of the case he is referring to is that both parties to the Treaty had envisaged that the project would operate into the "long-term future".[77] As a result, for Judge Weeramantry no treaty could be applied without taking into account recently developed norms of international environmental law.

56. What kind of principles, rules and standards of environmental law are parties required to use in applying a treaty? Judge Weeramantry does not directly address this issue but notes that "no action should be permissible which is today considered environmental unsound, even though it is taken under an instrument of more than 20 years."[78] Environmental law however does not always seek to prevent environmentally unsound activities. That is normative developments in international environmental law do not reflect science's view of what negatively effects the environment. Its development often comes about only because States consent to being burdened in particular ways. As a result the normative value of environmental rules also varies. The precautionary principle for instance is not widely regarded as customary international law. Judge Weeramantry appears to be suggesting that states cannot ignore this principle in the application of a treaty.

57. On what basis should contemporary standards (whatever they are) apply to treaties that impact the environment? Judge Weeramantry answered this question by arguing that "environmental rights are human rights".[79] The effect of the environmental damage on the human population using the Danube and its riparian areas from the construction of the Gabcikovo-Nagymaros System of Locks was unacceptable to Weeramantry. For him a procedural principle should not have been applied if it would result in human rights breaches as measured by the standards of the time the case was before the Court. He said, "[T]reaties 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".[80] He supported his assertion by citing the separate opinion of Judge Tanaka in the South West Africa Case where it was said that "[T]he respondent has no right to behave in an inhuman way today as well as during those 40".[81]

58. Exempting projects, which affect the environment from the principles of intertemporal law by claiming that human rights are adversely affected, indicates that safeguarding the environment on its own is not important enough. It is only its connection with human beings that at present results in its being adequately protected. This is not a criticism of Judge Weeramantry's approach to the intertemporal issue because it seems that he is reflecting the current consensus in international relations on how protection of the environment should be viewed. However, it is nevertheless clear that a project impacting the environment but not human beings is not exempt from the general principles of intertemporal law.

59. What is clear from Judge Weeramantry's approach is that contracting parties need not have expressed an intention to take account of contemporary developments. The assumption behind this point is that treaties, which affect the environment, are 'living instruments'. Judge Weeramantry accepts this assumption by approvingly citing the Tyrer case. [82] This is in direct contrast to Judge Tanaka's view in the South West Africa Case where he had argued that taking account of contemporary circumstances meant you would be giving an "authentic interpretation" to the "already existing provisions".[83] By rejecting Judge Tanaka's approach Judge Weeramantry did not accept the retrospective application of an interpretation of a treaty based on new developments in international law. It is however possible that he was also rejecting the possible situations that contracting parties would expressly exempt themselves from new developments. International law does not prevent States from precluding the application of any norm unless it is jus cogens. As a result, it is likely that the living instrument idea was adopted to permit all treaties to develop with international law unless expressly provided by its contracting parties.

60. In conclusion Judge Weeramantry rejected the general principle of intertemporal law when it came to the application of treaties that affect the environment.[84] The gravity of environmental harm was not a relevant consideration. The only qualification to this general exemption appears to have been for treaties that damage the environment without affecting humans. This is because the ethical and human rights dimension of environmental law is the basis upon which the principle of intertemporal law was not relevant to the application of treaties. Even so, the main question that remained unanswered was the kind of norms that determined how a treaty should be applied. No one would disagree that customary international law bind states but what about standards that have not yet been universally adopted but which nevertheless are based on scientific developments. Judge Weeramantry, although not emphatically stating it, appeared to have been undeterred in his view that the environment should not be harmed even if this means having to take into account softer developments of international law as opposed to customary law.

    Conclusion

61. A dispute as to the validity of a treaty is determined using the law and circumstances contemporary with the States ratification of the agreement. The Court in the Danube Dam Case accepted this proposition by its continued refusal to terminate the 1977 Treaty. Judge Weeramantry who took a very liberal approach to the intertemporal law distinguished between the validity and application of treaties. As a result he also rejected that evolving norms could affect the validity of treaties. A treaty can however become invalid if a fundamental change occurs in the circumstances that lead the contracting parties to draft the obligations in a treaty. It is only in this instance that Article 62 of the Vienna Convention displaces the application of the general principle of intertemporal law in relation to the validity of treaties. It is unlikely that changes in scientific understanding of our natural environment and a subsequent reordering of social and legal norms will bring about the kind of change envisaged by Article 62. The ICJ in the Danube Dam Case confirmed this view when it rejected Hungary's argument that between 1977 and 1997 a fundamental change in circumstances had occurred because of the changing international environmental norms.

62. The validity of a preexisting treaty is affected by norms of ius cogens. It is difficult to envisage an argument for any environmental norms to be ius cogens. Although the former President of the ICJ, Nagendra Singh has argued that sustainable development is a peremptory norm.[85] Judge Weeramantry in his separate opinion considered sustainable development as a principle of customary international law. This was perhaps necessitated by the fact that neither of the parties in the Danube Dam Case had argued that any principle of environmental law had the status of being ius cogens.[86] It appears therefore that the Court has acted consistently with its previous finding that the validity of treaties cannot really be questioned once it has been ratified.

63. Does this mean that a contracting party to a treaty has to sit and watch its environment being damaged if it cannot secure the agreement of the other party to terminate the treaty, which they had entered into 20 years ago? The Court's insensitivity in the Danube Dam Case to environmental concerns was not severe enough to preclude any possible action to protect the environment. It noted that a contracting party to a treaty could take countermeasures against the other State even though it is implementing the treaty between them if it is nevertheless breaching the rules and principles of other multilateral agreements or general international law (para 106). A countermeasure is assumedly to be taken against a breach of norms contemporary with the time the damage is occurring and not those existing at the time the treaty was ratified. The Court confirmed the relevance of new norms for contracting parties' relationship when it interpreted the right to equitable utilisation of an international river within the broader context of sustainable development. In this way, 20 years after having drafted the terms of a treaty a contracting party could still take measures to protect the environment even if the agreement does not expressly permit it. This would obviously preclude two parties agreeing with each other to prioritise economic gains over environmental harm.

64. Judge Weeramantry in his separate opinion made it almost mandatory for contracting parties to remain vigilant to possible environmental damage. Although he imposed a requirement on parties to a treaty to carry out an EIA before and during the term of the agreement between them, he did not state what consequences followed from not complying with the findings of such studies. This does not preclude a party taking countermeasures against another in case an EIA during the term of a treaty reveals potential significant damage to the environment. That is the breach of the recommendations of an EIA is itself an enough reason to take countermeasures. This is important, as contemporary scientific developments would form the basis of the EIA even though they have not yet been used to order society.

65. Similar to the approach taken for treaties that affect human rights, the Court in the Danube Dam Case also interpreted the terms of the 1977 Treaty as evolving with international law. Unlike the approach taken for generic terms in ordinary treaties, the Court in the case of the 1977 Treaty did not determine whether the contracting parties had meant for Articles 15, 19 and 20 to evolve with international law. In the Namibia Case the Court's approach to the words 'strenuous conditions of the modern world' and "the well-being and development' of the peoples concerned also ignored the intention of States at the time they were included into the Covenant of the League of Nations. It appears unlikely that Court's will exclude contemporary developments from the overall process of interpreting the terms of a treaty if an alternative approach is likely to adversely affect the environment.

66. The developments in environmental science and law between 1977 and 1997 were significant. The Court in the Danube Dam Case acknowledged these developments when it modified rights in general international law consistently with these developments. More importantly, it recognised that norms of environmental law could affect the treaty relationship of States even if they had failed to recognise its relevance and importance. Judge Weeramantry particularly stressed that parties to any treaty affecting the environment had to continuously perform an EIA using contemporary developments in international environmental law and science. These findings suggest a significant exception to the general principle of intertemporal law that places importance on the circumstances contemporary with drafting of a treaty. It is as a result more consistent with the approach taken by the ICJ to human rights issues.