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| I. | Substantive International Law - First Part |
| 2. | SOURCES OF INTERNATIONAL LAW |
| 2.1. | General Questions |
| 2.1.4. | Ius cogens / Obligations erga omnes |
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Gabcíkovo-Nagymaros Project
(Hungary / Slovakia)
Judgment of 25 September 1997
I.C.J. Reports 1997, p. 7
[pp. 117-118 S.O. Weeramantry] An important conceptual problem arises when, in such a dispute inter partes, an issue arises regarding an alleged violation of rights or duties in relation to the rest of the world. The Court, in the discharge of its traditional duty of deciding between the parties, makes the decision which is in accordance with justice and fairness between the parties. The procedure it follows is largely adversarial. Yet this scarcely does justice to rights and obligations of an erga omnes character - least of 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 particularly pointed form.
There has been conduct on the part of Hungary which, in ordinary inter
partes litigation, would prevent it from taking up wholly contradictory
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 inter partes adversarial
procedures, eminently fair and reasonable in a purely inter partes
issue, may need reconsideration in the future, if ever a case should arise of
the imminence of serious or catastrophic environmental danger, especially to
parties other than the immediate litigants.
Indeed, the inadequacies of technical judicial rules of procedure for the
decision of scientific matters has for long been the subject of scholarly
comment.1
We have entered an era of international law in which international law subserves not only the interests of individual States, but looks beyond them and their parochial concerns to the greater interests of humanity and planetary welfare. In addressing such problems, which transcend the individual rights and obligations of the litigating States, international law will need to look beyond procedural rules fashioned for purely inter partes litigation.
When we enter the arena of obligations which operate erga omnes rather than inter partes, rules based on individual fairness and procedural compliance may be inadequate. The great ecological questions now surfacing will 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.
| 1 | 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. |
