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World Court Digest

I. Substantive International Law - First Part
7. LAW OF TREATIES
7.8. Interpretation

¤ Gabcíkovo-Nagymaros Project
(Hungary / Slovakia)
Judgment of 25 September 1997
I.C.J. Reports 1997, p. 7

[pp. 113-114 S.O. Weeramantry] 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 permanent 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 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. Unfortunately, the Vienna Convention offers very little guidance regarding this matter which is of such importance in the environmental field. The provision 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 instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation" (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 31, para. 53), and these principles are "not limited to the rules of international law appli cable at the time the treaty was concluded"1.

[p. 123 S.O. Bedjaoui] 12. An interpretation of a treaty which would amount to substituting a completely different law to the one governing it at the time of its conclusion would be a distorted revision. The "interpretation" is not the same as the "substitution", for a negotiated and approved text, of a completely different text, which has neither been negotiated nor agreed. Although there is no need to abandon the "evolutionary interpretation", which may be useful, not to say necessary in very limited situations, it must be said that it cannot automatically be applied to any case.

13. In general, it is noteworthy that the classical rules of interpretation do not require a treaty to be interpreted in all circumstances in the context of the entire legal system prevailing at the time of the interpretation, in other words, in the present case, that the 1977 Treaty should be interpreted "in the context and in the light of the new contemporary law of the environment or of international watercourses. Indeed, it is quite the opposite that these rules of interpretation prescribe, seeking as they do to recommend an interpretation consonant with the intentions of the parties at the time the Treaty was concluded.
14. In general, in a treaty, a State incurs specific obligations contained in a body of law as it existed on the conclusion of the treaty and in no wise incurs evolutionary and indeterminate duties. A State cannot incur unknown obligations whether for the future or even the present.

15. In this case, the new law of the environment or of international watercourses could have been incorporated into the 1977 Treaty with the consent of the parties and by means of the "procedural mechanisms" laid down in the Treaty. That would be a "revision" of the Treaty accepted within the limits of that Treaty. Similarly, the new law might have played a role in the context of a "reinterpretation " of the Treaty but provided it did so with the consent of the other party.

1Oppenheim's International Law, R.Y. Jennings and A. Watts (ed.), 1992, p. 1275, note 21.