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ICJ delivers judgment in Pulp mills dispute

The Pulp Mills case arose from an allegation by Argentina that Uruguay had violated its obligations under the 1975 Statute of the River Uruguay and other rules of international law by the fact that Uruguay had unilaterally authorised the construction of two pulp mills on the River Uruguay, which forms the boundary between the two countries.  Argentina claimed that Uruguay had violated both the procedural and substantive obligations of the Statute.  First Argentina argued that Uruguay had failed to follow the correct procedures laid down in the Statute before authorizing the construction of two pulp mills and a port on the river.  Second, Argentina alleged that the mills would cause various types of pollution to the river ecosystem and to the environment more generally.  The judgment of the Court was delivered on Tuesday 20 April.  Argentina were successful in their arguments on the procedural aspects of the dispute but the Court found that there was not sufficient evidence to support their allegations of substantive environmental harm caused by the construction or operation of the pulp mills.  The following post contains a brief summary of the judgment.

Initially, the Court addressed the scope of its jurisdiction.  It noted that Argentina had alleged a range of pollution would be caused by the mill.  However, it held that it did not have jurisdiction over noise or visual pollution, nor over the bad odours that Argentina claimed would be caused by the pulp mills.  Moreover, it would only be able to consider claims of air pollution insofar as it affected the river itself.  In that respect, the Court concluded that “the record does not show any clear evidence that substances with harmful effects have been introduced into the acquatic environment of the river through the emissions of the Orion (Botnia) mill into the air.” (para. 264)  The Court also dismissed all claims relating to other sources of pollution, considering that there was not sufficient evidence that the pulp mills had caused significant pollution to the river.

On the other hand, the Court held that Uruguay had failed to comply with the procedural obligations incumbent upon it under the Statute.  The Court found that Uruguay had failed to transmit to the Commission for the River Uruguay (CARU) the information concerning its plans to construct pulp mills.  It was not sufficient that CARU had received information from other sources and the Court made very clear that “the information on the plans for the mills which reached CARU via the companies concerned or from other non-governmental sources cannot substitute for the obligation to inform laid down in Article 7, first paragraph of the 1975 Statute, which is borne by the party planning to construct the works referred to in that provision.” (para. 110)  According to the Court, it was necessary for Uruguay to inform CARU as soon as it was in possession of a plan which was sufficiently developed to enable CARU to make a preliminary assessment of the effects of the proposed activities on the river.   This obligation to inform was inherent in the principle of prevention as found in customary international law.  (paras 101-102)

In addition, Uruguay was found to have violated the obligation to notify Argentina of the full details of the plan.  Although the parties had agreed on the need to transmit an environmental impact assessment (EIA), they had differed on the substance of this obligation.  The Court made clear that the EIA must be transmitted to the other party before any environmental authorization had been granted which Uruguay had failed to do.   However, the Court was unwilling to set any specific substantive conditions on the preparation of an EIA.  Rather it said at paragraph 205 of the judgment that  “it is for each state to determine in its domestic legislation or in the authorization process for the project, the specific content of the environmental impact assessment required in each case, having regard to the nature and magnitude of the proposed development and its likely adverse impact on the environment, as well as the need to exercise due diligence in conducting such an assessment.”  The Court rejected all of the criticisms leveled at the EIA conducted by Uruguay.

In finding that Uruguay had failed to comply with the procedural obligations of the Statute, the Court also rejected claims that the parties had agreed to opt out of these mechanisms.  The Court avoided ruling on the specific designation of the understanding that the two states had reached on 2 March 2004, but it noted that it was binding on the parties and it must be observed in good faith.  (para. 128)  In this regard, the Court observed that Uruguay had not transmitted the information that it had said it would in the understanding, so it could not operate as a valid opt-out from the Statute procedures.  (para. 131)

Despite the finding that Uruguay had violated the procedural obligations in the Statute, the Court did not accept the argument of Argentina that Uruguay was under a “no-construction obligation.”  Whilst this was the case whilst negotiations were on-going under the Statute, it did not continue once those procedures had been exhausted: “the State initiating the plan may, at the end of the negotiation period, proceed with construction at its own risk.”  (para. 154)

This conclusion was vigorously opposed by Judge ad hoc Vinuesa who argued that the Court had misread the Statute.  In his view, where there is disagreement over the environmental effects of a proposed project, the parties are obliged to submit the case to the Court.  In so finding, he relied on the mandatory language of Article 12 of the Statute which he said overrides the permissive language of Article 60.  In doing so, he also attached importance to the status of the River Uruguay as a shared natural resource and not an area which falls within the territorial sovereignty of a single state.  (para. 25 of dissenting opinion)              See also the declaration of Judge Skotnikov.

Judges Al-Khasawneh and Simma also objected to the approach taken by the Court to Article 12 of the Statute.  Whilst they did not directly address the existence of a no-construction obligation, they held that “the procedure of Article 12 implies that [the Court] has to take a forward-looking, prospective approach, engage in a comprehensive risk assessment and embrace a preventive rather than compensatory logic when determining what this risk might entail.” (para. 22 of joint dissenting opinion)  In this context, they noted the importance that scientific evidence played in the case.  However, they were highly critical of the approach of the Court to the evidence.  The Court itself had expressed concern about the use of experts as counsel by the parties, a practice which had meant that there was no opportunity to cross-examine them. (para. 168 of the judgment)  Simma and Al-Khasawneh went further, saying that “we are not convinced by the claim that, in a case like the present one, scientific expertise can satisfactorily be supplied, and acted upon by the Court, by experts acting as counsel on behalf of the Parties under Article 43 of the Statute.”  (para. 6 of joint dissenting opinion)  Rather, they argued that use should have been made of alternative arrangements such as the appointment of experts by the Court under Article 50 of the Statute.  This suggestion was also approved of by Judge ad hoc Vinuesa who concludes that “basing its legal analysis on this incomplete evidence renders the judgment itself incomplete.” (para. 69 of dissenting opinion)  See also the Declaration of Judge Yusuf.  For the opposite view, see the Separate Opinion of Judge Keith, para. 11.

It is in regard to the use of evidence and experts that the judgment and the opinions of the judges are particularly important.  Judges Al-Khasawneh and Simma note the difference between the approach taken by the Court in this case and what they see as the more progressive and satisfactory approach of other international tribunals, such as WTO dispute settlement organs.  Overall, the case raises questions about the role of judicial institutions in the settlement of disputes involving complex and often contradictory scientific evidence.  This is a debate that has already taken place extensively in various national legal systems in relation to the creation of specialist environmental courts.  It may be that the Pulp Mills judgment once again raises questions and proposals for the creation of a specialist environmental court at the international level – see for example the ICE Coalition.

3 Comments

  1. Ste Ste 23 April 2010

    thanks!!!

  2. Ole W. Pedersen Ole W. Pedersen 23 April 2010

    Thanks for posting this excellent analysis, James.
    From a quick reading of the judgement it would appear that its potential impact on international environmental law in general is somewhat limited. While it adds impetus to the existing international EIA requirements, the Court’s reluctance to elaborate on the specific contents of an EIA may be seen as disappointing by some (although not overly surprising I suppose).
    The point you make with regard to expert evidence is very valid indeed.
    As for the possibility of an international environmental court, one wonders whether such discussions will ever amount to more than just that.

  3. Joe Joe 23 April 2010

    It’s got to be extremely difficult to mediate between two countries like this.

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