88

SEPARATE OPINION OF VICE-PRESIDENT WEERAMANTRY

INTRODUCTION

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 I have in this very difficult decision. Three issues on which I 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 I 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.

A. THE CONCEPT OF SUSTAINABLE DEVELOPMENT

Had the possibility of environmental harm been the only consideration
to be taken into account in this regard, the contentions of Hungary could
well have proved conclusive.

Yet there are other factors to be taken into account — not the least
important of which is the developmental aspect, for the Gabëikovo
scheme is important to Slovakia from the point of view of development.
The Court must hold the balance even between the environmental con-
siderations and the developmental considerations raised by the respective
Parties. The principle that enables the Court to do so is the principle of
sustainable development.

The Court has referred to it as a concept in paragraph 140 of its Judg-
ment. However, I consider it to be more than a mere concept, but as a
principle with normative value which is crucial to the determination of
this case. Without the benefits of its insights, the issues involved in this
case would have been difficult to resolve.

Since sustainable development is a principle fundamental to the deter-
mination 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 environ-
mental 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.

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When a major scheme, such as that under consideration in the present
case, is planned and implemented, there is always the need to weigh con-
siderations 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 interna-
tional 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 dol-
lars to achieve these benefits. Slovakia, in fact, argues that the environ-
ment 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 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, agri-
culture, 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. Is there such a principle, and does it command rec-
ognition in international law? I 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.

I would observe, moreover, that both Parties in this case agree on the

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applicability to this dispute of the principle of sustainable development.
Thus, Hungary states in its pleadings that:

“Hungary and Slovakia agree that the principle of sustainable
development, as formulated in the Brundtland Report, the Rio Dec-
laration and Agenda 21 is applicable to this dispute .. .

International law in the field of sustainable development is now
sufficiently well established, and both Parties appear to accept this.”
(Reply of Hungary, paras. 1.45 and 1.47.)

Slovakia states that “inherent in the concept of sustainable develop-
ment is the principle that developmental needs are to be taken into
account in interpreting and applying environmental obligations”
(Counter-Memorial of Slovakia, para. 9.53; see also paras. 9.54-9.59).

Their disagreement seems to be not as to the existence of the principle
but, rather, as to the way in which it is to be applied to the facts of this
case (Reply of Hungary, para. 1.45).

The problem of steering a course between the needs of development
and the necessity to protect the environment is a problem alike of the law
of development and of the law of the environment. Both these vital and
developing areas of law require, and indeed assume, the existence of a
principle which harmonizes both needs.

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 prin-
ciple 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 prin-
ciple, for it arises from a Treaty which had development as its objective,
and has been brought to a standstill over arguments concerning environ-
mental considerations.

The people of both Hungary and Slovakia are entitled to development
for the furtherance of their happiness and welfare. They are likewise
entitled to the preservation of their human right to the protection of
their environment. Other cases raising environmental questions have been
considered by this Court in the context of environmental pollution arising
from such sources as nuclear explosions, which are far removed from
development projects. The present case thus focuses attention, as no
other case has done in the jurisprudence of this Court, on the question of
the harmonization of developmental and environmental concepts.

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(a) Development as a Principle of International Law

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 develop-
ment to be fulfilled.

“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 wel-
fare, it is important and inevitable that development projects of various
descriptions, both minor and major, will be launched from time to time
in all parts of the world.

(b) Environmental Protection as a Principle of International Law

The protection of the environment is likewise a vital part of contem-
porary human rights doctrine, for it is a sine gua non for numerous
human rights such as the right to health and the right to life itself. It is

! 146 votes in favour, with one vote against.

2 Many years prior to the Declaration of 1986, this right had received strong support in
the field of human rights. As early as 1972, at the Third Session of the Institut interna-
tional de droits de l’homme, Judge Kéba Mbaye, President of the Supreme Court of Sen-
egal and later to be a Vice-President of this Court, argued strongly that such a right
existed. He adduced detailed argument in support of his contention from economic, politi-
cal and moral standpoints. (See K. Mbaye, “Le droit au développement comme un droit
de l’homme”, Revue des droits de l'homme, 1972, Vol. 5, p. 503.)

Nor was the principle without influential voices in its support from the developed world
as well. Indeed, the genealogy of the idea can be traced much further back even to the
conceptual stages of the Universal Declaration of Human Rights, 1948.

Mrs. Eleanor Roosevelt, who from 1946 to 1952 served as the Chief United States rep-
resentative to Committee III, Humanitarian, Social and Cultural Affairs, and was the first
Chairperson, from 1946 to 1951. of the United Nations Human Rights Commission, had
observed in 1947, “We will have to bear in mind that we are writing a bill of rights for
the world and that one of the most important rights is the opportunity for development.”
(M. Glen Johnson, “The Contribution of Eleanor and Franklin Roosevelt to the Develop-
ment of the International Protection for Human Rights”, Human Rights Quarterly, 1987,
Vol. 9, p. 19, quoting Mrs. Roosevelt’s column, “My Day”, 6 February 1947.)

General Assembly resolution 642 (VII) of 1952, likewise, referred expressly to “inte-
grated economic and social development”.

? The Preamble to the Declaration on the Right to Development (1986) recites that
development is a comprehensive, economic. social and cultural process which aims at the
constant improvement and well-being of the entire population and of all individuals on
the basis of their active, free and meaningful participation in development and in the fair
distribution of the benefits resulting therefrom.

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scarcely necessary to elaborate on this, as damage to the environment can
impair and undermine all the human rights spoken of in the Universal
Declaration and other human rights instruments.

While, therefore, all 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 develop-
ment 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 situa-
tion 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 19714; 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 essential-
ity 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 develop-
ment of the concept of sustainable development® and more than one-
third of the Stockholm Declaration related to the harmonization of envi-
ronment and development’. The Stockholm Conference also produced
an Action Plan for the Human Environment®.

4 See Sustainable Development and International Law, Winfried Lang (ed.), 1995, p. 143.

> For example, Principles 2, 3, 4, 5, 8, 9, 12, 13 and 14.

6 These principles are thought to be based to a large extent on the Founex Report —
see Sustainable Development and International Law, Winfried Lang (ed.), supra, p. 144.

7 Ibid.

8 Action Plan for the Human Environment, United Nations doc. A/CONF.48/14/
Rev.1. See especially Chapter I] which devoted its final section to development and the
environment.

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The international community had thus been sensitized to this issue
even as early as the early 1970s, and it is therefore no cause for surprise
that the 1977 Treaty, in Articles 15 and 19, made special reference to
environmental considerations. Both Parties to the Treaty recognized the
need for the developmental process to be in harmony with the environ-
ment and introduced a dynamic element into the Treaty which enabled
the Joint Project to be kept in harmony with developing principles of
international law.

Since then, it has received considerable endorsement from all sections
of the international community, and at all levels.

Whether in the field of multilateral treaties?, international declara-
tions !®; the foundation documents of international organizations!!; the
practices of international financial institutions !?; regional declarations
and planning documents!*; or State practice !4, there is a wide and gen-
eral recognition of the concept. The Bergen ECE Ministerial Declaration
on Sustainable Development of 15 May 1990, resulting from a meeting of

° For example, the United Nations Convention to Combat Desertification (The United
Nations Convention to Combat Desertification in those Countries Experiencing Serious
Droughts and/or Desertification, Particularly in Africa), 1994, Preamble, Art. 9 (1); the
United Nations Framework Convention on Climate Change, 1992 (LM, 1992,
Vol. XXXI, p. 849. Arts. 2 and 3); and the Convention on Biological Diversity (7LM,
1992. Vol. XXXI, p. 818, Preamble, Arts. | and 10 — “sustainable use of biodiversity”).

10 For example, the Rio Declaration on Environment and Development, 1992, empha-
sizes 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.

11 For example, the North American Free Trade Agreement (Canada, Mexico, United
States) (NAFTA, Preamble, /LM, 1993, Vol. XXXII, p. 289); the World Trade Organiza-
tion (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” — /LM, 1994,
Vol. XXXIH. pp. 1143-1144); and the European Union (Art. 2 of the ECT).

'2 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 all subscribe to the principle of sustainable develop-
ment. Indeed, since 1993, the World Bank has convened an annual conference related to
advancing environmentally and socially sustainable development (ESSD).

13 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 popu-
lation” which adopted “sustainable development” as its central theme; Ministerial Dec-
laration 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”).

'4 For example, in 1990, the Dublin Declaration by the European Council on the Envi-
ronmental Imperative stated that there must be an acceleration of effort to ensure that
economic development in the Community is “sustainable and environmentally sound”

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Ministers from 34 countries in the ECE region, and the Commissioner
for the Environment of the European Community, addressed “The chal-
lenge of sustainable development of humanity” (para. 6), and prepared a
Bergen Agenda for Action which included a consideration of the Eco-
nomics of Sustainability, Sustainable Energy Use, Sustainable Industrial
Activities, and Awareness Raising and Public Participation. It sought to
develop “sound national indicators for sustainable development”
(para. 13 (5)) and sought to encourage investors to apply environmental
standards required in their home country to investments abroad. It also
sought to encourage UNEP, UNIDO, UNDP, IBRD, ILO, and appro-
priate international organizations to support member countries in ensur-
ing environmentally sound industrial investment, observing that industry
and government should co-operate for this purpose (para. 15 (f))'5. A
Resolution of the Council of Europe, 1990, propounded a European
Conservation Strategy to meet, inter alia, the legitimate needs and aspi-
rations of all Europeans by seeking to base economic, social and cultural
development on a rational and sustainable use of natural resources, and
to suggest how sustainable development can be achieved!®.

The concept of sustainable development is thus a principle accepted
not merely by the developing countries, but one which rests on a basis of
worldwide acceptance.

In 1987, the Brundtland Report brought the concept of sustainable
development to the forefront of international attention. In 1992, the Rio
Conference made it a central feature of its Declaration, and it has been a
focus of attention in all questions relating to development in the devel-
oping countries.

(Bulletin of the European Communities, 6, 1990, Ann. I, p. 18). It urged the Commu-
nity 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 coun-
tries of Central and Eastern Europe, that remedial measures must be taken “to ensure
that their future economic development is sustainable” (ibid. }. It also expressly recited
that:

“As Heads of State or Government of the European Community, . . . [w]e intend
that action by the Community and its Member States will be developed . . . on the
principles of sustainable development and preventive and precautionary action.”
(/bid., Conclusions of the Presidency, Point 1.36, pp. 17-18.)

'S Basic Documents of International Environmental Law, Harald Hohmann (ed.),
Vol. 1, 1992, p. 558.
16 Ibid., p. 598.

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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 com-
munity.

The concept has a significant role to play in the resolution of environ-
mentally related disputes. The components of the principle come from
well-established areas of international law — human rights, State respon-
sibility, environmental law, economic and industrial law, equity, territo-
rial 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 reso-
lution of tensions between two established rights. It reaffirms in the arena
of international Jaw that there must be both development and environ-
mental 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 require-
ment for the establishment of a principle of customary international law.

As Brierly observes:

“It would hardly ever be practicable, and all 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 neces-
sarily a vague one; but it is of the nature of customary law, whether
national or international . . 17

Evidence appearing in international instruments and State practice (as
in development assistance and the practice of international financial insti-
tutions) likewise amply supports a contemporary general acceptance of
the concept.

Recognition of the concept could thus, fairly, be said to be world-
wide !#,

17 J, Brierly, The Law of Nations, 6th ed., 1963, p. 61; emphasis added.

18 See, further, L. Krämer, EC Treaty and Environmental Law, 2nd ed., 1995, p. 63,
analysing the environmental connotation in the word “sustainable” and tracing it to the
Brundtland Report.

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(d) The Need for International Law to Draw upon the World’s Diver-
sity of Cultures in Harmonizing Development and Environmental Pro-
tection

This case, which deals with a major hydraulic project, is an opportu-
nity to tap the wisdom of the past and draw from it some principles
which can strengthen the concept of sustainable development, for every
development project clearly produces an effect upon the environment,
and humanity has lived with this problem for generations.

This is a legitimate source for the enrichment of international law,
which source is perhaps not used to the extent which its importance
warrants.

In drawing into international law the benefits of the insights available
from other cultures, and in looking to the past for inspiration, interna-
tional 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 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 formal-
ism which see such approaches as not being entirely de rigueur.

I 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 inter-
national legal system it may be more important to stress the impera-
tive need to develop international law to comprehend within itself
the rich diversity of cultures, civilizations and legal traditions . . .”7°

Moreover, especially at the frontiers of the discipline of international

1 Julius Stone, Human Law and Human Justice, 1965, p. 66: “It was for this reason
that Grotius added to his theoretical deductions such a mass of concrete examples from
history.”

20 Sir Robert Y. Jennings, “Universal International Law in a Multicultural World”, in
International Law and the Grotian Heritage: A Commemorative Colloquium on the Occa-
sion of the Fourth Centenary of the Birth of Hugo Grotius, edited and published by the
T.M.C. Asser Institute, The Hague, 1985, p. 195.

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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. On the need for the international law of the
future to be interdisciplinary, I refer to another recent extra-judicial
observation of that distinguished former President of the Court that:

“there should be a much greater, and a practical, recognition by
international lawyers that the rule of law in international affairs, and
the establishment of international justice, are inter-disciplinary sub-
jects”*!.

Especially where this Court is concerned, “the essence of true univer-
sality” 2? of the institution is captured in the language of Article 9 of the
Statute of the International Court of Justice which requires the “repre-
sentation of the main forms of civilization and of the principal legal sys-
tems of the world” (emphasis added). The struggle for the insertion of the
italicized words in the Court’s Statute was a hard one, led by the Japa-
nese representative, Mr. Adatci?*, and, since this concept has thus been
integrated into the structure and the Statute of the Court, 1 see the Court
as being charged with a duty to draw upon the wisdom of the world’s
several civilizations, where such a course can enrich its insights into the
matter before it. The Court cannot afford to be monocultural, especially
where it is entering newly developing areas of law.

This case touches an area where many such insights can be drawn to
the enrichment of the developing principles of environmental law and to
a clarification of the principles the Court should apply.

It is in this spirit that I 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 enor-
mous importance to the contemporary international scene and, poten-
tially, 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

2! “International Lawyers and the Progressive Development of International Law”,
Theory of International Law at the Threshold of the 21st Century, Jerzy Makarczyk (ed.),
1996, p. 423.

2 Jennings, “Universal International Law in a Multicultural World”, op. cit., p. 189.

°3 On this subject of contention, see Procès-Verbaux of the Proceedings of the Com-
mittee, 16 June-24 July 1920, esp. p. 136.

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recognized in those systems. Moreover, several of these systems have
particular relevance to this case, in that they relate to the harnessing of
streams and rivers and show a concern that these acts of human interfer-
ence with the course of nature should always be conducted with due
regard to the protection of the environment. In the context of environ-
mental wisdom generally, there is much to be derived from ancient civi-
lizations and traditional legal systems in Asia, the Middle East, Africa,
Europe, the Americas, the Pacific, and Australia — in fact, the whole
world. This is a rich source which modern environmental law has left
largely untapped.

As the Court has observed, “Throughout the ages mankind has, for eco-
nomic and other reasons, constantly interfered with nature.” (Judgment,
para. 140.)

The concept of reconciling the needs of development with the protec-
tion of the environment is thus not new. Millennia ago these concerns
were noted and their twin demands well reconciled in a manner so mean-
ingful as to carry a message to our age.

I shall start with a system with which I am specially familiar, which
also happens to have specifically articulated these two needs — develop-
ment and environmental protection — in its ancient literature. 1 refer to
the ancient irrigation-based civilization of Sri Lanka. It is a system
which, while recognizing the need for development and vigorously imple-
menting 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 techno-
logy, but also in its legal system, for the felling of certain forests was pro-
hibited, 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.

This system, some details of which I shall touch on”, is described by

24 This was not an isolated civilization, but one which maintained international rela-
tions with China, on the one hand, and with Rome (Ist c.) and Byzantium (4th c.), on the
other. The presence of its ambassadors at the Court of Rome is recorded by Pliny (lib. vi
c. 24), and is noted by Grotius — De Jure Praedae Commentarius, G. L. Williams and
W. H. Zeydol (eds.), Classics of International Law, James B. Scott (ed.), 1950, pp. 240-241.
This diplomatic representation also receives mention in world literature (e.g., Milton,
Paradise Regained, Book IV). See also Grotius’ reference to the detailed knowledge of
Ceylon possessed by the Romans — Grotius, Mare Liberum (Freedom of the Seas),
trans. R. van Deman Magoffin, p. 12. The island was known as Taprobane to the Greeks,
Serendib to the Arabs, Lanka to the Indians, Ceilao to the Portuguese, and Zeylan to the
Dutch. Its trade with the Roman Empire and the Far East was noted by Gibbon

25 It is an aid to the recapitulation of the matters mentioned that the edicts and works

I shall refer to have been the subject of written records, maintained contemporaneously
and over the centuries. See footnote 38 below.

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Arnold Toynbee in his panoramic survey of civilizations. Referring to it
as an “amazing system of waterworks” #, Toynbee describes?’ how hill
streams were tapped and their water guided into giant storage tanks,
some of them four thousand acres in extent’, from which channels ran
on to other larger tanks??. Below each great tank and each great channel
were hundreds of little tanks, each the nucleus of a village.

The concern for the environment shown by this ancient irrigation system
has attracted study in a recent survey of the Social and Environmental
Effects of Large Dams*°, which observes that among the environmentally
related aspects of its irrigation systems were the “erosion control tank”
which dealt with the problem of silting by being so designed as to collect
deposits of silt before they entered the main water storage tanks. Several
erosion control tanks were associated with each village irrigation system.
The significance of this can well be appreciated in the context of the present
case, where the problem of silting has assumed so much importance.

Another such environmentally related measure consisted of the “forest
tanks” which were built in the jungle above the village, not for the pur-
pose of irrigating land, but to provide water to wild animals?!.

26 Arnold J. Toynbee, A Study of History, Somervell’s Abridgment, 1960, Vol. 1,
p. 257.

27 Ibid., p. 81, citing John Still, The Jungle Tide.

28 Several of these are still in use, e.g., the Tissawewa (3rd c. Bc); the Nuwarawewa (3rd
c. BC); the Minneriya tank (275 ap); the Kalawewa (5th c. AD); and the Parakrama
Samudra (Sea of Parakrama, |1th c. ap).

29 The technical sophistication of this irrigation system has been noted also in Joseph
Needham’s monumental work on Science and Civilization in China. Needham, in describ-
ing the ancient irrigation works of China, makes numerous references to the contempo-
rary irrigation works of Ceylon, which he discusses at some length. See especially, Vol. 4,
Physics and Physical Technology, 1971, pp. 368 et seg. Also p. 215: “We shall see how
skilled the ancient Ceylonese were in this art.”

30 Edward Goldsmith and Nicholas Hildyard, The Social and Environmental Effects of
Large Dams, 1985, pp. 291-304.

3! For these details, see Goldsmith and Hildyard, ibid, pp. 291 and 296. The same
authors observe:

“Sri Lanka is covered with a network of thousands of man-made lakes and ponds,
known locally as tanks (after tanque, the Portuguese word for reservoir). Some are
truly massive, many are thousands of years old, and almost all show a high degree of
sophistication in their construction and design. Sir James Emerson Tennent, the nine-
teenth century historian, marvelled in particular at the numerous channels that were
dug underneath the bed of each lake in order to ensure that the flow of water was
‘constant and equal as long as any water remained in the tank’.”

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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 agricul-
ture”**. Yet they were executed with meticulous regard for environmen-
tal concerns, and showed that the concept of sustainable development
was consciously practised over two millennia ago with much success.

Under this irrigation system, major rivers were dammed and reservoirs
created, on a scale and in a manner reminiscent of the damming which
the Court saw on its inspection of the dams in this case.

This ancient concept of development was carried out on such a large
scale that, apart from the major reservoirs**, of which there were several

32 Toynbee, op. cit., p. 81. Andrew Carnegie, the donor of the Peace Palace, the seat of
this Court, has described this ancient work of development in the following terms:

“The position held by Ceylon in ancient days as the great granary of Southern Asia
explains the precedence accorded to agricultural pursuits. Under native rule the
whole island was brought under irrigation by means of artificial lakes, constructed by
dams across ravines, many of them of great extent — one still existing is twenty miles
in circumference — but the system has been allowed to fall into decay.” (Andrew
Carnegie, Round the World, 1879 (1933 ed.), pp. 155-160.)

33 The first of these major tanks was thought to have been constructed in 504 ac (Sir
James Emerson Tennent, Ceylon, 1859, Vol. I, p. 367). A few examples, straddling 15 cen-
turies, were:

— the Vavunik-kulam (3rd c. Bc) (1,975 acres water surface, 596 million cubic feet water
capacity); the Pavatkulam (3rd or 2nd c. Bc) (2,029 acres water surface, 770 million
cubic feet water capacity) — Parker, Ancient Ceylon, 1909. pp. 363, 373;

— the Tissawewa (3rd c. pc); and the Nuwarawewa (3rd c. pc), both still in service and
still supplying water to the ancient capital Anuradhapura, which is now a provincial
capital ;

— the Minneriya tank (275 ap) (“The reservoir upwards of twenty miles in circumference
... the great embankment remains nearly perfect”) (Tennent, op. cit., Vol. I], p. 600);

— the Topawewa (4th c. AD), area considerably in excess of 1,000 acres;

— the Kaluwewa (5th c. AD) — embankment 3.25 miles long, rising to a height of 40 feet,
tapping the river Kala Oya and supplying water to the capital Anuradhapura through
a canal 50 miles in length;

— the Yodawewa (Sth c. ap). Needham describes this as “A most grandiose conception
... the culmination of Ceylonese hydraulics . . . an artificial lake with a six-and-a-half
mile embankment on three sides of a square, sited on a sloping plain and not in a river
valley at all.” It was fed by a 50-mile canal from the river Malvatu-Oya;

— the Parakrama Samudra (Sea of Parakrama) (11th c. ap), embankment 9 miles long,

up to 40 feet high, enclosing 6,000 acres of water area. (Brohier, Ancient Irrigation
Works in Ceylon, 1934, p. 9.)

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dozen, between 25,000 and 30,000 minor reservoirs were fed from these
reservoirs through an intricate network of canals*4.

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 coun-
try”, and “out of compassion for all 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 (Devan-
ampiya Tissa, 247-207 Bc) was on a hunting trip (around 223 sc), the
Arahat* Mahinda, son of the Emperor Asoka of India, preached to him

34 On the irrigation systems, generally, see H. Parker, Ancient Ceylon, op. cit.: R. L.
Brohier, Ancient Irrigation Works in Ceylon, 1934; Edward Goldsmith and Nicholas
Hildyard, op. cit., pp. 291-304. Needham, describing the ancient canal system of China,
observes that “it was comparable only with the irrigation contour canals of Ceylon, not
with any work in Europe” (op. cit., Vol. 4, p. 359).

35 “so vast were the dimensions of some of these gigantic tanks that many still in exist-
ence cover an area from fifteen to twenty miles in circumference” (Tennent, op. cit., Vol. I,
p. 364).

36 King Parakrama Bahu (1153-1186 ap). This monarch constructed or restored 163
major tanks, 2,376 minor tanks, 3,910 canals, and 165 dams. His masterpiece was the Sea
of Parakrama, referred to in footnote 33. All of this was conceived within the environ-
mental philosophy of avoiding any wastage of natural resources.

47 See Toynbee’s reference to this:

“The idea underlying the system was very great. It was intended by the tank-build-
ing kings that none of the rain which fell in such abundance in the mountains should
reach the sea without paying tribute to man on the way.” (Op. cit., p. 81.)

38 The Mahavamsa, Turnour’s translation, Chap. XXXVII, p. 242. The Mahavamsa
was the ancient historical chronicle of Sri Lanka, maintained contemporaneously by
Buddhist monks, and an important source of dating for South Asian history. Commen-
cing at the close of the 4th century AD, and incorporating earlier chronicles and oral
traditions dating back a further eight centuries, this constitutes a continuous record for
over 15 centuries — see The Mahavamsa or The Great Chronicle of Ceylon, translated
into English by Wilhelm Geiger, 1912, Introduction, pp. ix-xii. The King’s statement,
earlier referred to, is recorded in the Mahavamsa as follows:

“In the realm that is subject to me are... . but few fields which are dependent on
rivers with permanent flow ... Also by many mountains, thick jungles and by wide-
spread swamps my kingdom is much straitened. Truly, in such a country not even a
little water that comes from the rain must flow into the ocean without being made
useful to man.” (/bid., Chap. LX VIH, verses 8-12. )

39 See also, on this matter, Emerson Tennent, op. cit., Vol. I, p. 311.
4 A person who has attained a very high state of enlightenment. For its more technical
meaning, see Walpola Rahula. History of Buddhism in Ceylon, 1956, pp. 217-221.

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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 all 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 centuries. The traditional legal
system’s protection of fauna 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. “A/ienum” in this context would be extended
by Buddhism to future generations as well, and to other component ele-
ments 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 irriga-
tion systems of the country, and were therefore considered vital.

Environmental considerations were reflected also in the actual work of
construction and engineering. The ancient engineers devised an answer to
the problem of silting (which has assumed much importance in the
present case), and they invented a device (the bisokotuwa or valve pit),
the counterpart of the sluice, for dealing with this environmental prob-

41 This sermon is recorded in The Mahavamsa, Chap. XIV.

42 See K. N. Jayatilleke, “The Principles of International Law in Buddhist Doctrine”,
Recueil des cours de l'Académie de droit international, Vol. 120, 1967, p. 558.

43 For this idea in the scriptures of Buddhism, see Digha Nikaya, III, Pali Text Society,
p. 850.

44 Goldsmith and Hildyard, op. cit., p. 299. See, also, R. L. Brohier, “The Interrelation
of Groups of Ancient Reservoirs and Channels in Ceylon”, Journal of the Royal Asiatic
Society (Ceylon), 1937, Vol. 34, No. 90, p. 65. Brohier’s study is one of the foremost
authorities on the subject.

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lem“, by controlling the pressure and the quantity of the outflow of
water when it was released from the reservoir“. Weirs were also built, as
in the case of the construction involved in this case, for raising the levels
of river water and regulating its flow’.

This juxtaposition in this ancient heritage of the concepts of develop-
ment and environmental protection invites comment immediately from
those familiar with it. Anyone interested in the human future would per-
ceive the connection between the two concepts and the manner of their
reconciliation.

Not merely from the legal perspective does this become apparent, but
even from the approaches of other disciplines.

Thus Arthur C. Clarke, the noted futurist, with that vision which has
enabled him to bring high science to the service of humanity, put his
finger on the precise legal problem we are considering when he observed:
“the small Indian Ocean island . . . provides textbook examples of many
modern dilemmas: development versus environment“*, and proceeds
immediately to recapitulate the famous sermon, already referred to,
relating to the trusteeship of land, observing, “For as King Deva-
nampiya Tissa was told three centuries before the birth of Christ, we are
its guardians — not its owners.” ”

The task of the law is to convert such wisdom into practical terms —

45H. Parker, Ancient Ceylon, op. cit., p. 379:

“Since about the middle of the last century, open wells, called ‘valve towers’ when
they stand clear of the embankment or ‘valve pits’ when they are in it, have been built
in numerous reservoirs in Europe. Their duty is to hold the valves, and the lifting-
gear for working them, by means of which the outward flow of water is regulated or
totally stopped. Such also was the function of the bisokotuwa of the Sinhalese engi-
neers; they were the first inventors of the valve-pit more than 2,100 years ago.”

4 H. Parker, op. cit. Needham observes:

“Already in the first century ap they [the Sinhalese engineers] understood the
principle of the oblique weir . .. But perhaps the most striking invention was the
intake-towers or valve towers (Bisokotuwa) which were fitted in the reservoirs per-
haps from the 2nd Century sc onwards, certainly from the 2nd Century ap... In
this way silt and scum-free water could be obtained and at the same time the pres-
sure-head was so reduced as to make the outflow controllable.” (Joseph Needham,
Science and Civilization in China, op. cit., Vol. 4, p. 372.)

47 K. M. de Silva, 4 History of Sri Lanka, 1981, p. 30.

48 Arthur C. Clarke, “Sri Lanka’s Wildlife Heritage”, National Geographic, August
1983, No. 2, p. 254; emphasis added.

4 Arthur C. Clarke has also written:

“Of all Ceylon’s architectural wonders, however, the most remarkable — and cer-
tainly the most useful — is the enormous irrigation system which, for over two thou-
sand years, has brought prosperity to the rice farmers in regions where it may not
rain for six months at a time. Frequently ruined, abandoned and rebuilt, this legacy
of the ancient engineers is one of the island’s most precious possessions. Some of its
artificial lakes are ten or twenty kilometres in circumference, and abound with birds
and wildlife.” (The View from Serendip, 1977, p. 121.)

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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” © to give the principle of sustain-
able development the nature of customary law.

This reference to the practice and philosophy of a major irrigation civi-
lization of the pre-modern world“! illustrates that when technology on
this scale was attempted it was accompanied by a due concern for the
environment. Moreover, when so attempted, the necessary response from
the traditional legal system, as indicated above, was one of affirmative
steps for environmental protection, often taking the form of royal decrees,
apart from the practices of a sophisticated system of customary law
which regulated the manner in which the irrigation facilities were to be
used and protected by individual members of the public.

The foregoing is but one illustrative example of the concern felt by
prior legal systems for the preservation and protection of the environ-
ment. 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 tribes’.
Their complicated networks of irrigation furrows, collecting water from
the mountain streams and transporting it over long distances to the fields
below, have aroused the admiration of modern observers not merely for
their technical sophistication, but also for the durability of the complex
irrigation systems they fashioned. Among the Sonjo, it was considered to
be the sacred duty of each generation to ensure that the system was kept
in good repair and all able-bodied men in the villages were expected
to take part”. The system comprised a fine network of small canals,
reinforced by a superimposed network of larger channels. The water did

50 J. Brierly, The Law of Nations, op. cit., p. 61.

5! “It is possible that in no other part of the world are there to be found within the same
space the remains of so many works for irrigation, which are at the same time of such
great antiquity and of such vast magnitude as in Ceylon. . .” (Bailey, Report on Irriga-
tion in Uva, 1859; see also R. L. Brohier, Ancient Irrigation Works in Ceylon, op. cit.,
p. 1);

“No people in any age or country had so great practice and experience in the con-
struction of works for irrigation.” (Sir James Emerson Tennent, op. cit., Vol. I,
p. 468);

“The stupendous ruins of their reservoirs are the proudest monuments which
remain of the former greatness of their country ... Excepting the exaggerated dimen-
sions of Lake Moeris in Central Egypt, and the mysterious ‘Basin of Al Aram’... no
similar constructions formed by any race, whether ancient or modern, exceed in
colossal magnitude the stupendous tanks of Ceylon.” (Sir James Emerson Tennent,
quoted in Brohier, supra, p. 1.)

52 Goldsmith and Hildyard, op. cit., pp. 282-291.
% Ibid., pp. 284-285.

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not enter the irrigation area unless it was strictly required, and was not
allowed to pass through the plots in the rainy season. There was thus no
over-irrigation, salinity was reduced, and water-borne diseases avoided ™.

Sir Charles Dundas, who visited the Chagga in the first quarter of this
century, was much impressed by the manner in which, throughout the
long course of the furrows, society was so organized that law and order
prevailed*>. Care of the furrows was a prime social duty, and if a furrow
was damaged, even accidentally, one of the elders would sound a horn in
the evening (which was known as the call to the furrows), and next morn-
ing everyone would leave their normal work and set about the business of
repair %. The furrow was a social asset owned by the clan’.

Another example is that of the ganats** of Iran, of which there were
around 22,000, comprising more than 170,000 miles“? of underground
irrigation channels built thousands of years ago, and many of them still
functioning ®°. Not only is the extent of this system remarkable, but also
the fact that it has functioned for thousands of years and, until recently,
supplied Iran with around 75 per cent of the water used for both irriga-
tion and domestic purposes.

By way of contrast, where the needs of the land were neglected, and
massive schemes launched for urban supply rather than irrigation, there
was disaster. The immense works in the Euphrates Valley in the third
millennium Bc aimed not at improving the irrigation system of the local
tribesmen, but at supplying the requirements of a rapidly growing urban
society (e.g., a vast canal built around 2400 Bc by King Entemenak) led
to seepage, flooding and over-irrigation®!. Traditional farming methods
and later irrigation systems helped to overcome the resulting problems of
waterlogging and salinization.

China was another site of great irrigation works, some of which are
still in use over two millennia after their construction. For example, the
ravages of the Mo river were overcome by an excavation through a

54 Goldsmith and Hildyard, op. cit., p. 284.

55 Sir Charles Dundas, Kilimanjaro and Its Peoples, 1924, p. 262.

56 Goldsmith and Hildyard, op. cit., p. 289.

57 See further Fidelio T. Masao, “The Irrigation System in Uchagga: An Ethno-
Historical Approach”, Tanzania Notes and Records, No. 75, 1974.

°8 Qanats comprise a series of vertical shafts dug down to the aquifer and joined by a
horizontal canal — see Goldsmith and Hildyard, op. cit., p. 277.

5 Some idea of the immensity of this work can be gathered from the fact that it would
cost around one million dollars to build an eight kilometres ganat with an average tunnel
depth of 15 metres (ibid., p. 280).

69 Jbid., p. 277.

61 Goldsmith and Hildyard, op. cit., p. 308.

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mountain and the construction of two great canals. Needham describes
this as “one of the greatest of Chinese engineering operations which, now
2,200 years old, is still in use today”®. An ancient stone inscription
teaching the art of river control says that its teaching “holds good for a
thousand autumns”%. Such action was often inspired by the philosophy
recorded in the Tao Te Ching which “with its usual gemlike brevity says
‘Let there be no action [contrary to Nature] and there will be nothing
that will not be well regulated’”.%* Here, from another ancient irrigation
civilization, is yet another expression of the idea of the rights of future
generations being served through the harmonization of human develop-
mental work with respect for the natural environment.

Regarding the Inca civilization at its height, it has been observed that
it continually brought new lands under cultivation by swamp drainage,
expansion of irrigation works, terracing of hillsides and construction of
irrigation works in dry zones, the goal being always the same — better
utilization of all resources so as to maintain an equilibrium between pro-
duction and consumption®. In the words of a noted writer on this civi-
lization, “in this respect we can consider the Inca civilization triumphant,
since it conquered the eternal problem of maximum use and conservation
of soil” *$, Here, too, we note the harmonization of developmental and
environmental considerations.

Many more instances can be cited of irrigation cultures which accorded
due importance to environmental considerations and reconciled the rights
of present and future generations. I have referred to some of the more
outstanding. Among them, I have examined one at greater length, partly
because it combined vast hydraulic development projects with a meticu-
lous regard for environmental considerations, and partly because both
development and environmental protection are mentioned in its ancient
records. That is sustainable development par excellence; and the prin-
ciples on which it was based must surely have a message for modern law.

Traditional wisdom which inspired these ancient legal systems was able
to handle such problems. Modern legal systems can do no less, achieving
a blend of the concepts of development and of conservation of the envi-
ronment, which alone does justice to humanity’s obligations to itself and

62 Op. cit., Vol. 4, p. 288.

63 Jbid., p. 295.

64 Needham, Science and Civilization in China, Vol. 2, History of Scientific Thought.
1969, p. 69.

65 Jorge E. Hardoy, Pre-Columbian Cities, 1973, p. 415.

6 John Collier, Los indios de las Americas, 1960, cited in Hardoy, op. cit., p. 415. See
also Donald Collier, “Development of Civilization on the Coast of Peru”, in Irrigation
Civilizations: A Comparative Study, Julian H. Steward (ed.), 1955.

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to the planet which is its home. Another way of viewing the problem is to
look upon it as involving the imperative of balancing the needs of the
present generation with those of posterity.

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
come®’; when African tradition viewed the human community as three-
fold — 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 like-
wise sickened and died; when Chinese and Japanese culture stressed the
need for harmony with nature; and when Aboriginal custom, while maxi-
mizing the use of all 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©?, these 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

67 On Native American attitudes to land, see Guruswamy, Palmer and Weston (eds.),
International Environmental Law and World Order, 1994, pp. 298-299. On American
Indian attitudes, see further J. Callicott, “The Traditional American Indian and Western
European Attitudes towards Nature: An Overview”, Environmental Ethics, 1982, Vol. 4,
p. 293; A. Wiggins, “Indian Rights and the Environment”, Yale J. Int'l Law, 1993,
Vol. 18, p. 345; J. Hughes, American Indian Ecology, 1983.

68 A Pacific Islander, giving evidence before the first Land Commission in the British
Solomons (1919-1924), poured scorn on the concept that land could be treated “as if it
were a thing like a box” which could be bought and sold, pointing out that land was
treated in his society with respect and with due regard for the rights of future generations.
(Peter G. Sack, Land between Two Laws, 1993, p. 33.)

6 On Aboriginal attitudes to land, see E. M. Eggleston, Fear, Favour and Affection,
1976. For all their concern with the environment, the Aboriginal people were not without
their own development projects:

“There were remarkable Aboriginal water control schemes at Lake Condah,
Toolondo and Mount William in south-western Victoria. These were major engineer-
ing feats, each involving several kilometres of stone channels connecting swamp and
watercourses.

At Lake Condah, thousands of years before Leonardo da Vinci studied the hydro-
logy of the northern Italian lakes, the original inhabitants of Australia perfectly
understood the hydrology of the site. A sophisticated network of traps, weirs and
sluices were designed . . .” (Stephen Johnson et al., Engineering and Society : An Aus-
tralian Perspective, 1995, p. 35.)

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to cause wanton damage, even to an enemy’s territory in the course of
military conflict 7°.

Europe, likewise, had a deep-seated tradition of love for the environ-
ment, a prominent feature of European culture, until the industrial revo-
lution pushed these concerns into the background. Wordsworth in Eng-
land, Thoreau in the United States, Rousseau in France, Tolstoy and
Chekhov in Russia, Goethe in Germany spoke not only for themselves,
but represented a deep-seated love of nature that was instinct in the
ancient traditions of Europe — traditions whose gradual disappearance
these writers lamented in their various ways”.

Indeed, European concern with the environment can be traced back
through the millennia to such writers as Virgil, whose Georgics, com-
posed between 37 and 30 sc, extols the beauty of the Italian countryside
and pleads for the restoration of the traditional agricultural life of Italy,
which was being damaged by the drift to the cities”.

This survey would not be complete without a reference also to the prin-
ciples of Islamic law that inasmuch as all 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 ingrained values of any civilization are the source from which its
legal concepts derive, and the ultimate yardstick and touchstone of their
validity. This is so in international and domestic legal systems alike, save
that international law would require a worldwide recognition of those
values. It would not be wrong to state that the love of nature, the desire
for its preservation, and the need for human activity to respect the

70 Nagendra Singh, Human Rights and the Future of Mankind, 1981, p. 93.
71 Commenting on the rise of naturalism in all the arts in Europe in the later Middle
Ages, one of this century’s outstanding philosophers of science has observed:

“The whole atmosphere of every art exhibited direct joy in the apprehension of the
things around us. The craftsmen who executed the later mediaeval decorative sculp-
ture, Giotto, Chaucer, Wordsworth, Walt Whitman, and at the present day the New
England poet Robert Frost, are all akin to each other in this respect.” (Alfred North
Whitehead, Science and the Modern World, 1926, p. 17.)

72 See the Georgics, Book H, |. 36ff.; 1. 458 ff. Also Encyclopaedia Britannica, 1992,
Vol. 29, pp. 499-500.

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requisites for its maintenance and continuance are among those pristine
and universal values which command international recognition.

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 inte-
grated into the corpus of the living law. As stated in the exhaustive study
of The Social and Environmental Effects of Large Dams, already cited,
“We should examine not only what has caused modern irrigation systems
to fail; it is much more important to understand what has made tradi-
tional irrigation societies to succeed.” ”

Observing that various societies have practised sustainable irrigation
agriculture over thousands of years, and that modern irrigation systems
rarely last more than a few decades, the authors pose the question
whether it was due to the achievement of a “congruence of fit” between
their methods and “the nature of land, water and climate” ’*. Modern
environmental law needs to take note of the experience of the past in pur-
suing this “congruence of fit” between development and environmental
imperatives.

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 all citizens act upon it, that duty is part of the legal system
in question”.

Moreover, when the Statute of the Court described the sources of
international law as including the “general principles of law recognized

73 Goldsmith and Hildyard, op. cit., p. 316.

74 Ibid.

75 See, for example, M. Gluckman, African Traditional Law in Historical Perspective,
1974, The Ideas in Barotse Jurisprudence, 2nd ed., 1972, and The Judicial Process among
the Barotse, 1955; A. L. Epstein, Juridical Techniques and the Judicial Process: A Study
in African Customary Law, 1954.

76 On the precision with which these systems assigned duties to their members, see
Malinowski, Crime and Custom in Savage Society, 1926.

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by civilized nations”, it expressly opened a door to the entry of such prin-
ciples into modern international law.

(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, con-
cepts, and aspirational standards.

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 pro-
tected. There is a duty lying upon all members of the community to pre-
serve 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 all 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 inter-
national 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

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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 opinion” I have had occasion to observe that this prin-
ciple was gathering strength and international acceptance, and had
reached the level of general recognition at which this Court should take
notice of it’.

I wish in this opinion to clarify further the scope and extent of the envi-
ronmental impact principle in the sense that environmental impact assess-
ment 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 conse-
quences; 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 ELA before the scheme can
never be expected, in a matter so complex as the environment, to antici-
pate 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

77 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 1995, p. 344. See, also, Legality of the Use by a State of Nuclear
Weapons in Armed Conflict, 1.C.J. Reports 1996, p. 140.

78 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 (XXVH), 1972; the 1978 UNEP Draft Principles of Conduct (Prin-
ciple 5); Agenda 2! (paras. 7.41 (6) 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).

79 Trail Smelter Arbitration (United Nations, Reports of International Arbitral Awards,
(RIAA), 1941, Vol. LE, p. 1907).

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monitoring during the continuance of the project. Article 15 speaks
expressly of monitoring of the water quality during the operation of the
System of Locks, and Article 19 speaks of compliance with obligations
for the protection of nature arising in connection with the construction
and operation of the System of Locks.

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.

Over half a century ago the Trail Smelter Arbitration® recognized the
importance of continuous monitoring when, in a series of elaborate pro-
visions, it required the parties to monitor subsequent performance under
the decision®!. It directed the Trail Smelter to install observation stations,
equipment necessary to give information of gas conditions and sulphur
dioxide recorders, and to render regular reports which the Tribunal
would consider at a future meeting. In the present case, the Judgment of
the Court imposes a requirement of joint supervision which must be simi-
larly understood and applied.

The concept of monitoring and exchange of information has gathered
much recognition in international practice. Examples are the Co-opera-
tive Programme for the Monitoring and Evaluation of the Long-Range
Transmission of Air Pollutants in Europe, under the ECE Convention,
the Vienna Convention for the Protection of the Ozone Layer, 1985
(Arts. 3 and 4), and the Convention on Long-Range Transboundary Air
Pollution, 1979 (Art. 9)%2. There has thus been growing international
recognition of the concept of continuing monitoring as part of EJA.

The Court has indicated in its Judgment (para. 155 (2) (C)) that a joint
operational régime must be established in accordance with the Treaty
of 16 September 1977. A continuous monitoring of the scheme for its
environmental impacts will accord with the principles outlined, and be
a part of that operational régime. Indeed, the 1977 Treaty, with its
contemplated régime of joint operation and joint supervision, had itself
a built-in régime of continuous joint environmental monitoring. This
principle of environmental law, as reinforced by the terms of the Treaty
and as now incorporated into the Judgment of the Court (para. 140),
would require the Parties to take upon themselves an obligation to set up
the machinery for continuous watchfulness, anticipation and evaluation

80 RIAA, 1941, Vol. IE p. 1907.
81 See ibid., pp. 1934-1937.
82 ILM, 1979, Vol. XVII, p. 1442.

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at every stage of the project’s progress, throughout its period of active
operation.

Domestic legal systems have shown an intense awareness of this need
and have even devised procedural structures to this end. In India, for
example, the concept has evolved of the “continuous mandamus” — a
court order which specifies certain environmental safeguards in relation
to a given project, and does not leave the matter there, but orders a con-
tinuous monitoring of the project to ensure compliance with the stand-
ards which the court has ordained*.

EIA, being a specific application of the larger general principle of
caution, embodies the obligation of continuing watchfulness and antici-
pation.

(b) The Principle of Contemporaneity in the Application of
Environmental Norms

This 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.

This case concerns a treaty that was entered into in 1977. Environmen-
tal standards and the relevant scientific knowledge of 1997 are far in
advance of those of 1977. As 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 contem-
plate new activities but also when continuing with activities begun in
the past.” (Para. 140.)

This assumes great practical importance in view of the continued joint
monitoring that will be required in terms of the Court’s Judgment.

Both Parties envisaged that the project they had agreed upon was not
one which would be operative for just a few years. It was to reach far into
the long-term future, and be operative for decades, improving in a per-
manent way the natural features that it dealt with, and forming a lasting
contribution to the economic welfare of both participants.

If the Treaty was to operate for decades into the future, it could not

#3 For a reference to environmentally related judicial initiatives of the courts of the
SAARC Region, see the Proceedings of the Regional Symposium on the Role of the Judi-
ciary in Promoting the Rule of Law in the Area of Sustainable Development, held in
Colombo, Sri Lanka, 4-6 July 1997, shortly to be published.

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114 GABCIKOVO-NAGYMAROS PROJECT (SEP. OP. WEERAMANTRY)

operate on the basis of 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 all
treaties dealing with projects impacting on the environment. Unfortu-
nately, the Vienna Convention offers very little guidance regarding this
matter which is of such importance in the environmental field. The provi-
sion in Article 31, 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 instru-
ment has to be interpreted and applied within the framework of the entire
legal system prevailing at the time of the interpretation” (Legal Conse-
quences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276
(1970), Advisory Opinion, 1 C.J. Reports 1971, p. 31, para. 53), and
these principles are “not limited to the rules of international law appli-
cable at the time the treaty was concluded” #.

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 can-
not endorse actions which are a violation of human rights by the stand-
ards 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 (C.J. Reports 1966, pp. 293-294). The
ethical and human rights related aspects of 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

84 Oppenheim's International Law, R. Y. Jennings and A. Watts (eds.), 1992, p. 1275,
note 21.

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115 GABCIKOVO-NAGYMAROS PROJECT (SEP. OP. WEERAMANTRY)

unsound, even though it is taken under an instrument of more than
20 years ago.

Mention may also be made in this context of the observation of the
European Court of Human Rights in the Tyrer case that the Convention
is a “living instrument” which must be interpreted “in the light of
present-day conditions” ®.

It 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*®*. In the application of an environmental treaty, it is vitally
important that the standards in force at the time of application would be
the governing standards.

A recognition of the principle of contemporaneity in the application of
environmental norms applies to the joint supervisory régime envisaged in
the Court’s Judgment, and will be an additional safeguard for protecting
the environmental interests of Hungary.

C. THE HANDLING OF ERGA OMNES OBLIGATIONS IN INTER PARTES
JUDICIAL PROCEDURE

(a) The Factual Background: The Presence of the Elements of Estoppel

It is necessary to bear in mind that the Treaty of 1977 was not one that
suddenly materialized and was hastily entered into, but that it was the
result of years of negotiation and study following the first formulations
of the idea in the 1960s. During the period of negotiation and imple-
mentation of the Treaty, numerous detailed studies were conducted by
many experts and organizations, including the Hungarian Academy of
Sciences.

The first observation to be made on this matter is that Hungary went
into the 1977 Treaty, despite very clear warnings during the preparatory
studies that the Project might involve the possibility of environmental
damage. Hungary, with a vast amount of material before it, both for and
against, thus took a considered decision, despite warnings of possible
danger to its ecology on almost all the grounds which are advanced
today.

Secondly, Hungary, having entered into the Treaty, continued to treat
it as valid and binding for around 12 years. As early as 1981, the Gov-

85 Judgment of the Court. Tyrer case, 25 April 1978, para. 31, publ. Court A, Vol. 26,
at 15, 16.

8¢ See further Rosalyn Higgins, “Some Observations on the Inter-Temporal Rule
in International Law”, in Theory of International Law at the Threshold of the 21st
Century, op. cit., p. 173.

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116 GABCIKOVO-NAGYMAROS PROJECT (SEP. OP. WEERAMANTRY)

ernment of Hungary had ordered a reconsideration of the Project and
researchers had then suggested a postponement of the construction,
pending more detailed ecological studies. Yet Hungary went ahead with
the implementation of the Treaty.

Thirdly, not only did Hungary devote its own effort and resources to
the implementation of the Treaty but, by its attitude, it left Czechoslo-
vakia with the impression that the binding force of the Treaty was not
in doubt. Under this impression, and in pursuance of the Treaty which
bound both Parties, Czechoslovakia committed enormous resources to
the Project. Hungary looked on without comment or protest and, indeed,
urged Czechoslovakia to more expeditious action. It was clear to Hun-
gary that Czechoslovakia was spending vast funds on the Project —
resources clearly so large as to strain the economy of a State whose
economy was not particularly strong.

Fourthly, Hungary’s action in so entering into the Treaty in 1977 was
confirmed by it as late as October 1988 when the Hungarian Parliament
approved of the Project, despite all the additional material available to it
in the intervening space of 12 years. A further reaffirmation of this Hun-
garian position is to be found in the signing of a Protocol by the Deputy
Chairman of the Hungarian Council of Ministers on 6 February 1989,
reaffirming Hungary’s commitment to the 1977 Project. Hungary was in
fact interested in setting back the date of completion from 1995 to 1994.

Ninety-six days after the 1989 Protocol took effect, i.e., on 13 May
1989, the Hungarian Government announced the immediate suspension’
for two months of work at the Nagymaros site. It abandoned perform-
ance on 20 July 1989, and thereafter suspended work on all parts of the
Project. Formal termination of the 1977 Treaty by Hungary took place
in May 1992.

It seems to me that all the ingredients of a legally binding estoppel are
here present #7.

The other Treaty partner was left with a vast amount of useless project
construction on its hands and enormous incurred expenditure which it
had fruitlessly undertaken.

(b) The Context of Hungary's Actions

In making these observations, one must be deeply sensitive to the fact
that Hungary was passing through a very difficult phase, having regard

87 On the application of principles of estoppel in the jurisprudence of this Court and its
predecessor, see Legal Status of Eastern Greenland, P.C.1.J., Series A/B, No. 53, p. 22;
Fisheries (United Kingdom v. Norway), LC.J. Reports 1951, p. 116; Temple of Preah
Vihear, . C.J. Reports 1962, p. 151. For an analysis of this jurisprudence, see the separate
opinion of Judge Ajibola in Territorial Dispute (Libyan Arab Jamahiriya/Chad), I.C_J.
Reports 1994, pp. 77-83.

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to the epochal events that had recently taken place in Eastern Europe.
Such historic events necessarily leave their aftermath of internal tension.
This may well manifest itself in shifts of official policy as different emer-
gent groups exercise power and influence in the new order that was in the
course of replacing that under which the country had functioned for close
on half a century. One cannot but take note of these realities in under-
standing the drastic official changes of policy exhibited by Hungary.

Yet the Court is placed in the position of an objective observer, seeking
to determine the effects of one State’s changing official attitudes upon a
neighbouring State. This is particularly so where the latter was obliged, in
determining its course of action, to take into account the representations
emanating from the official repositories of power in the first State.

Whatever be the reason for the internal changes of policy, and what-
ever be the internal pressures that might have produced this, the Court
can only assess the respective rights of the two States on the basis of their
official attitudes and pronouncements. Viewing the matter from the
standpoint of an external observer, there can be little doubt that there
was indeed a marked change of official attitude towards the Treaty,
involving a sharp shift from full official acceptance to full official rejec-
tion. It is on this basis that the legal consequence of estoppel would
follow.

(c) Is It Appropriate to Use the Rules of Inter Partes Litigation to
Determine Erga Omnes Obligations ?

This recapitulation of the facts brings me to the point where I believe a
distinction must be made between litigation involving issues inter partes
and litigation which involves issues with an erga omnes connotation.

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 tradi-
tional 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 all 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 particu-
larly pointed form.

There has been conduct on the part of Hungary which, in ordinary

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118 GABCIKOVO-NAGYMAROS PROJECT (SEP. OP. WEERAMANTRY)

inter partes litigation, would prevent it from taking up wholly contradic-
tory positions. But can momentous environmental issues be decided on
the basis of such inter partes conduct? In cases where the erga omnes
issues are of sufficient importance, I would think not.

This is a suitable opportunity, both to draw attention to the problem
and to indicate concern at the inadequacies of such inter partes rules as
determining factors in major environmental disputes.

I stress this for the reason that infer 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.

Indeed, the inadequacies of technical judicial rules of procedure for the
decision of scientific matters has for long been the subject of scholarly
comment **.

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 sur-
facing will call 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 self-interest,
unrelated to the global concerns of humanity as a whole.

The present case offers an opportunity for such reflection.

Environmental law is one of the most rapidly developing areas of inter-
national law and I have thought it fit to make these observations on a few
aspects which have presented themselves for consideration in this case.

88 See, for example, Peter Brett, “Implications of Science for the Law”, McGill Law
Journal, 1972, Vol. 18, p. 170, at p. 191. For a well-known comment from the perspective
of sociology, see Jacques Ellul, The Technological Society, trans. John Wilkinson, 1964,
pp. 251, 291-300.

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119 GABCIKOVO-NAGYMAROS PROJECT (SEP. OP. WEERAMANTRY)
As this vital branch of law proceeds to develop, it will need all the
insights available from the human experience, crossing cultural and

disciplinary boundaries which have traditionally hemmed in the disci-
pline of international law.

(Signed) Christopher Gregory WEERAMANTRY.

116


INTERNATIONAL COURT OF JUSTICE

YEAR 2000
2000
27 June
General List
No. 118
27 June 2000

CASE CONCERNING APPLICATION OF THE CONVENTION ON THE PREVENTION
AND PUNISHMENT OF THE CRIME OF GENOCIDE

(CROATIA v. YUGOSLAVIA)
ORDER

Present: President Guillaume; Vice-President Shi; Judges Oda, Bedjaoui, Ranjeva, Herczegh,
Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,
Buergenthal; Registrar Couvreur.

The International Court of Justice,
Composed as above,
After deliberation,

Having regard to Article 48 of the Statute of the Court and to Article 44, paragraph 3, of the Rules of
Court,

Having regard to the Order dated 10 March 2000, whereby the President of the Court extended until
14 September 2000 and 14 September 2001 respectively the time-limits for the filing of the Memorial of
the Republic of Croatia and the Counter-Memorial of the Federal Republic of Yugoslavia;

Whereas, by a letter dated 26 May 2000 and received in the Registry on 29 May 2000, under cover of a
letter also dated 26 May 2000 from the Ambassador of the Republic of Croatia to the Netherlands, the
Agent of Croatia requested the Court to extend by a further period of six months

the time-limit for the filing of the Memorial, and indicated the reasons for that request; and whereas, on
receipt of that letter, the Registrar, referring to Article 44, paragraph 3, of the Rules of Court, transmitted
a copy thereof to the Agent of Yugoslavia;

Whereas, by a letter dated 6 June 2000 and received in the Registry on the same day by facsimile, the
Agent of Yugoslavia indicated that "if the Court grants the Applicant the extension of six months, the FR
of Yugoslavia asks the Court the same time-limit for the filing of the Counter-Memorial, which will be at
the disposal of the Applicant, 1.e., time-limit of eighteen months",

Extends to 14 March 2001 the time-limit for the filing of the Memorial of the Republic of
Croatia;

Extends to 16 September 2002 the time-limit for the filing of the Counter-Memorial of the
Federal Republic of Yugoslavia; and

Reserves the subsequent procedure for further decision.

Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this
twenty-seventh day of June two thousand, in three copies, one of which will be placed in the archives of
the Court and the others transmitted to the Government of the Republic of Croatia and the Government of
the Federal Republic of Yugoslavia, respectively.

(Signed) Gilbert Guillaume,
President.

(Signed) Philippe Couvreur,
Registrar.