Argentina-Uruguay Environmental Border Dispute Before the World Court
On May 4, 2006, Argentina instituted proceedings before the International Court of Justice (ICJ) against its neighbor Uruguay claiming that Uruguay has breached a bilateral treaty obligation to consult with Argentina before taking action on a pulp mill project affecting the River Uruguay, which partially constitutes the joint boundary of the two South American countries. The ICJ, which is the principal judicial organ of the United Nations primarily entrusted with settling legal disputes between sovereign states, consists of 15 judges elected to nine-year terms by the United Nations General Assembly and Security Council. The Court has its seat at the Peace Palace in The Hague, The Netherlands.
The dispute, which has severely strained relations between the two countries, relates to the construction of a paper mill project on the banks of the River Uruguay near Fray Bentos, a Uruguayan town with a population of some 23,000. The project is situated within 25 kilometers from the Argentine town of Gualeguaychú, a popular tourist resort of some 80,000 residents on the Argentine side of the River Uruguay. The project consists of two greenfield eucalyptus Kraft pulp mills using Elemental Chlorine Free (ECF) technology to produce air-dried pulp (ADP). ADP is the primary raw material for the production of paper and paper-related products. In contrast to the Totally Chlorine Free (TCF) bleaching process, ECF technology results in the emission of dioxins through the use of chlorine dioxide. The plants will produce a combined total of about 1.4 million tons of pulp annually. The project's total cost is estimated at $1.7 billion, representing the largest foreign investment in Uruguay's history and a key source for local employment in Uruguay. The project sponsors are Europe's largest pulp producers. The project is at an early stage of construction, having received the necessary permits from the Uruguayan authorities. If completed, it would be the world's biggest cellulose mill project.
As early as January 2006, Argentina announced its intention to file proceedings against Uruguay before the ICJ amidst rising tensions between the two riparian states and demands from local residents and activists to halt the project.[1] Argentina filed its Application after a bi-national technical commission set up in July 2005 to prepare a non-binding report on the environmental impact of the cellulose plants did not solve the dispute, and the presidents of the two countries failed to reach a friendly settlement in April 2006.
In its Application, Argentina claims that Uruguay, by unilaterally authorizing the construction of the paper mills, has violated the Statute of the River Uruguay (the "River Uruguay Statute"), a treaty between Argentina and Uruguay that was concluded in 1975 to establish "the joint machinery necessary for the optimum and rational utilization of the River Uruguay."[2] The Statute created an Administrative Commission for the River Uruguay (CARU), a body comprising an equal number of experts from both countries and forming the framework for regulating and coordinating bilateral issues affecting the River Uruguay, including the issues of water quality and pollution prevention.
Argentina seeks reparation for the injury resulting from Uruguay's alleged failure to comply fully with the procedures prescribed by the River Uruguay Statute, including especially the Statute's prior notification and consultation procedure. Argentina maintains that Uruguay should not have pressed ahead with the project over Argentina's repeated protests. Argentina is concerned that toxic air and liquid emissions and the release of malodorous vapors from the two paper mills will damage the fragile ecosystem of the River Uruguay (including the local flora and fauna) and will be harmful to the health of over 300,000 local residents. Argentina also maintains that the mills will cause material damage in that they will have harmful effects on fisheries resources and the local Argentine economy (especially the tourism and fisheries industries and the employment and real estate markets).
The key point of contention between the parties is whether or not the paper mills would comply with international norms regarding effluent emission from pulp mills. According to Uruguay, the available environmental studies into the cumulative impact of the mills in terms of atmospheric emissions and liquid effluents demonstrate that the impact will not be such as to meet the threshold for triggering the notification requirements involving CARU. Argentina has rejected the environmental impact assessment studies relied on by Uruguay, claiming that they are biased, overly optimistic, and incomplete (especially with regard to potential health and socio-economic effects and monitoring and remedial measures by the sponsors and the Uruguayan authorities). Argentina has pressed for additional information within the framework of CARU and has demanded a more comprehensive and independent (international) study regarding the potential environmental and other effects of the two paper mills.
As the basis of the Court's jurisdiction, Argentina is relying on Article 60 of the River Uruguay Statute. Article 60 provides in particular:
Any dispute concerning the interpretation or application of the Treaty [of April 7, 1961, concerning the Boundary Constituted by the River Uruguay] and the Statute which cannot be settled by direct negotiations may be submitted by either Party to the International Court of Justice.
Argentina also has asked the ICJ to indicate provisional measures designed to ensure that Uruguay immediately suspend all authorizations for construction of the two paper mills and cooperate in good faith with Argentina in order to ensure the optimum utilization of the River Uruguay pending final judgment in the case. In order to grant such interim relief, the Court needs only to satisfy itself that prima facie jurisdiction exists in the case based on the existence of a dispute as to the interpretation or application of the River Uruguay Statute within the meaning of Article 60 of that treatyi.e., the Court must conclude that it does not manifestly lack jurisdiction.
A party requesting provisional measures also must convince the Court that, unless interim relief were granted, there would be a risk of irremediable harm, or irreparable prejudice, to the rights that are the subject of the dispute in pending proceedings. In other words, the respective rights of either party must be in imminent danger and deserve to be protected. The element of urgency is key and results in the Court holding (limited) hearings on the request on a priority basis. The Court may dispense with hearings in cases of extreme urgency.
Argentina's request for provisional measures is the first to be filed since January 2003. The ICJ was called upon to consider requests for provisional measures in 17 cases between 1946 (the year of its inaugural sitting) and 1994, about half of which were granted in one form or another.[3] In the past decade, the Court has granted some form of interim relief in response to five out of a total of 18 requests. During that period, the only requests for provisional measures that were readily accepted by the ICJ were those submitted in three death-penalty-related cases against the United States in 1998-1999 and 2003. All the other requests, pertaining to cases of armed clashes and diplomatic crises, were either rejected or resulted in measures other than those requested (the Court enjoys broad discretion in the use of this instrument of injunctive relief).[4] None of the precedents has involved a request to shut down an industrial project. In highly sensitive cases, provided the necessary conditions are fulfilled, the ICJ tends to adopt rather generic measures calling on both parties to prevent any action that might aggravate or extend a pending dispute.[5]
There have been press reports about complaints by Uruguay that its economy has been hurt badly due to Argentine protesters blocking key roads and bridges connecting Argentina and Uruguay, thereby slowing the flow of Argentine tourists to Uruguay's Atlantic Coast during the summer season and preventing crews from delivering construction supplies to the plants.[6] President Néstor Kirchner of Argentina led a border rally of protestors one day after his country filed its case before the ICJ. Uruguay might counter Argentina's request for provisional measures by submitting a request asking the ICJ to order Argentina to enforce its laws prohibiting the blocking of roads and bridges and to prevent any blockages pending the Court's final judgment in the case.
In the past decade, the ICJ has taken between one and 49 days to rule on a request for provisional measures.
While the ICJ has recently clarified that Orders indicating provisional measures are binding on the States parties to an ICJ case,[7] such an Order does not preclude a subsequent finding that the Court lacks jurisdiction or that the Application (complaint) is inadmissible. Moreover, it is unclear what remedies a State party to an ICJ proceeding would have in the event that the other party does not comply with the Court's Order indicating provisional measures. While notice of provisional measures must be given to the UN Security Council pursuant to Article 41(2) of the ICJ Statute, an ICJ Order of provisional measures is not a "decision" or "judgment" as meant in Article 94 of the United Nations Charter. Pursuant to Article 94, a State that has received a favorable final judgment from the ICJ may have recourse to the Security Council if the other State fails to comply with the Court's judgment. The Security Council may then make recommendations or decide upon measures to be taken to give effect to the judgment, provided none of its five permanent members casts a veto. Such measures could include the imposition of economic sanctions or the use of military force, but the Security Council has never actually imposed mandatory sanctions to enforce an ICJ judgment.
In other words, while provisional measures are binding, there is no formal process by which they may be enforced. But non-fulfillment of an Order indicating provisional measures ultimately may form the basis for a finding by the ICJ (in the final judgment) that the offending State has breached its obligation imposed by the Order. [8] Breach of an international obligation entails a responsibility under international law to provide reparation (compensation) for any injury caused by the internationally wrongful act.[9]
As is usual in cases brought unilaterally by claimant states, Uruguay is likely to argue in the main case that the Court lacks jurisdiction to entertain Argentina's Application and/or that the Application is inadmissible, which arguments usually are dealt with by way of a separate phase of the proceedings involving at least two rounds of written pleadings and a full hearing resulting in a separate judgment concerning the Court's jurisdiction. In particular, Uruguay may be expected to argue that Argentina failed to exhaust all negotiations as required by Article 60. In apparent anticipation of such a defense, Argentina's Application points out that the bi-national technical commission that was set up in Spring 2005, and which met a dozen times between August 2005 and January 2006, failed to solve the dispute. Uruguay also could file one or more counterclaims as part of its Counter-Memorial, provided they fall within the Court's jurisdiction and are directly connected with Argentina's claim in the main case.
Case law on transboundary pollution or environmental damage (the situation where a project is situated in one country but has environmental impacts across the border) has emerged from the decisions of a number of international courts and tribunals, including the ICJ.[10] Under Article 38 of its Statute, the ICJ may take such decisions into account as subsidiary sources of international law.
The ICJ set up a standing "Chamber for Environmental Matters" in July 1993, but no cases have as yet been submitted to it (recourse is voluntary). The Chamber consists of the ICJ president and vice-president and five judges who are elected every three years.
The full text of the press communiqué regarding this case (No. 2006/17) is available on the Court's Web site: <http://www.icj-cij.org>.
Pieter H.F. Bekker, Ph.D., a member of the ASIL Executive Council, practices international law and arbitration at White & Case LLP in New York City. He formerly served as a staff lawyer in the ICJ Registry. He has written two books (Commentaries on World Court Decisions (1987-1996) (1998) and World Court Decisions at the Turn of the Millennium (1997-2001) (2002), both with Kluwer Law International) and numerous articles and notes on the ICJ. He co-chaired the 94th ASIL Annual Meeting (2000). He chairs the Committee on Intergovernmental Settlement of Disputes of the International Law Association's American Branch. The views expressed herein are solely those of the author.
Footnotes
[1] See <http://news.bbc.co.uk/2/hi/americas/4651806> (last visited Jan. 27, 2006).
[2] Estatutos del RÃo Uruguay (Statute of the River Uruguay), signed at Salto on Feb. 26, 1975, entered into force Sept. 18, 1976 (Art. 1). Argentina and Uruguay are not parties to the 1997 Convention on the Law of the Non-Navigational Uses of Transnational Watercourses.
[3] See Shigeru Oda, Provisional Measures: The practice of the International Court of Justice, in: Fifty Years of the International Court of Justice, at 541 (V. Lowe & M. Fitzmaurice eds., 1996).
[4] Article 41(1) of the ICJ Statute states that the Court has the power "to indicate, if it considers that the circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party."
[5] For a brief overview of the ICJ's recent practice, see Pieter H.F. Bekker, Provisional Measures in the Recent Practice of the International Court of Justice, 7 International Law FORUM du droit international 24 (2005).
[6] See, e.g., The Economist, at 40 (March 18, 2006).
[7] LaGrand Case (Germany v. U.S.), Judgment, ICJ Reports 2001, p. 466 (June 27), 40 ILM 1069 (2001).
[8] LaGrand Case (Germany v. U.S.), Judgment, ICJ Reports 2001, p. 466, para. 128, 40 ILM 1069, 1102 (2001).
[9] International Law Commission, Articles on State Responsibility, arts. 1, 2, 31, U.N. General Assembly Res. 56/83, Annex (2001).
[10] E.g., an ad hoc arbitral tribunal established under the auspices of the Permanent Court of Arbitration held in decisions rendered in 1938 and 1941 that no State may use or permit the use of its territory so as to cause injury by fumes in or to the territory of another State or to persons or property situated therein if the consequences are serious and the injury is established by clear and convincing evidence. See Trail Smelter Arbitration (U.S. v. Canada), 3 United Nations Reports of International Arbitral Awards 1905 (1941). The ICJ has made statements on international environmental law in a number of judgments and advisory opinions. See, most recently, GabcÃkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p. 7 (Sept. 25), 37 ILM 162 (1998).