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The International Court of Justice and the Pulp Mills on the River Uruguay. Settling the Dispute between Argentina and Uruguay

Seminararbeit 2014 11 Seiten

Politik - Internationale Politik - Klima- und Umweltpolitik

Leseprobe

Table of Contents

1 Introduction

2 Facts

3 Holdings of the Court
3.1 Procedural obligations
3.2 Substantive obligations

4 The Court’s capacity to deal with environmental issues
4.1 Reversal of the burden of proof
4.2 The role of expert evidence
4.3 Environmental Impact Assessment: An explicit statement?

5 Conclusion

1 Introduction

On 30 April 2005, Argentine citizens started a five-year blockade of the Libertador General San Martín Bridge which connects the Argentine city of Gualeguaychú with its Uruguayan neighbor city Fray Bentos. The citizens feared severe environmental damages caused by two pulp mills which were to be constructed on the Uruguayan side of the Uruguay River which separates the two countries. In 2006, Argentina referred the dispute to the International Court of Justice (ICJ).[1]

The judgment, delivered on 20 April 2010, has been described as the most significant one in international environmental law since Trail Smelter.[2]

It is undisputed that the judgment made some significant contributions to the progress of international environmental law.[3] I will argue, however, that the Court also missed some great opportunities to develop international environmental law and to establish itself as a Court capable of dealing with highly scientific issues. First, I will discuss the Court’s reasoning concerning the burden of proof and its use of expert evidence. Second, I will debate the Court’s recognition of an Environmental Impact Assessment (EIA) as part of the corpus of general international law.

2 Facts

The States of Uruguay and Argentina are separated by the Uruguay River. In order to ensure co-operation to the end of an optimum and rational utilization of this shared natural resource, the two States established in 1975 the Statute of the River Uruguay (1975 Statute).[4] In the Statute, the states set up the Administrative Commission of the River Uruguay (CARU). CARU serves as a ‘joint machinery’ to ensure co-operation between the Parties and to watch over the implementation of the 1975 Statute.[5] However, CARU was not able to prevent or resolve the conflict about the authorization by Uruguay CMB (ENCE) pulp mill[6] and the actual construction of the Orion (Botnia) mill.[7]

Especially on the Argentine side of the river, citizens worried about lasting environmental damage coming from the pulp plants which would also harm the tourist industry.[8] Uruguay, however, maintained that studies showed that there would be no such damage and pollutants would be kept within legal limits.[9] CARU requested documents from Uruguay in order to assess whether the planned constructions might cause significant damage to Argentina. However, in both cases, Uruguay authorized constructions of the mills without providing CARU with the documents it had asked for. Plans to build the CMB (ENCE) mill were finally suspended in 2005. The dispute, however, continued over the construction of the Orion (Botnia) mill. After repeated failures to resolve the issue,[10] Argentina, on 4 May 2006, submitted the dispute to the ICJ.[11]

3 Holdings of the Court

The judgment concerned the interpretation and application of the 1975 Statute, principally whether Uruguay had breached its procedural obligations under the Statute in authorizing the construction of the CMB (ENCE) mill and the construction and commission of the Orion (Botnia) mill, and whether Uruguay had complied with its substantive environmental obligations since the commissioning of the Orion (Botnia) mill.[12]

3.1 Procedural obligations

As regards procedural obligations, Articles 7-12 of the 1975 Statute constituted the most prominent provisions for the judgment.[13] They set out a ‘machinery of notification and consultation which must be followed in respect of ‘any works which are liable to affect navigation, the régime of the river or the quality of its waters.’[14]

The Court first prominently recognized a ‘functional link’ between procedural and substantive obligations.[15] It denied, however, Argentina’s claim that a breach of procedural obligations would automatically entail a breach of substantive ones.[16]

It then continued to determine that Uruguay had breached its procedural obligation to inform CARU under Article 7.1 and its obligation to notify its plans to Argentina under Article 7.2 and 7.3 of the 1975 Statute. By establishing that there had been no agreement to derogate from the procedural obligations, the Court held that Uruguay also had failed to comply with the obligation to negotiate (Article 12).

3.2 Substantive obligations

As regards substantive obligations, the Court started its observation by addressing two issues of particular importance to the case: the burden of proof and expert evidence. Argentina claimed that the 1975 Statute adopts a precautionary approach which implied that the burden of proof would be reversed and placed upon Uruguay being the state causing damage to the shared resource.[17] The Court rejected this claim by stating that the onus probandi incumbit actori principle was a well-established principle of general international law.[18]

Given the vast amount of factual and scientific material presented by the Parties in the case,[19] the Court criticized the Parties for presenting their evidence as counsel instead of expert witnesses.[20] However, the Court still held that it would rely on the facts presented to it in order to ‘make its own determination’ of facts.[21] With regard to the substantive violations of Articles 1, 27, 35, 36 and 41(a) of the 1975 Statue which Argentina claimed, the Court did not find any breach by Uruguay, mainly justifying this conclusion by referring to a lack of evidence.[22]

In its examination of Article 41(a), the Court came to the highly significant conclusion that undertaking an EIA ‘may now be considered a requirement under general international law […] where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context.’[23] In addition to the obligation under customary law, it also found that states must conduct an EIA in order to fulfill their obligation of due diligence.[24]

4 The Court’s capacity to deal with environmental issues

Several Judges argued that the Pulp Mills judgment constituted a ‘wasted (golden) opportunity’ to demonstrate the ability of the Court to approach scientifically complex disputes in a state-of-the-art manner.[25] I will discuss two exemplary issues where the Court has indeed missed its chance to present a clear position regarding issues of particular importance to environmental issues. I will then debate the Court’s assessment of the EIA, which has been described as an ‘explicit statement’ and the most meaningful part of the judgment.[26]

4.1 Reversal of the burden of proof

The question of burden of proof is a good example for the high hurdles in environmental protection claims. Proving in advance that a project will be harmful to the environment presents serious problems: multiple factors affect the outcome, much crucial information may be unknown or otherwise unavailable and expert testimony may fail to provide reliable evidence.[27]

[...]


[1] Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, ICJ Rep. 2010, para. 43 [hereinafter ‘Judgment’].

[2] Prof. Alan Boyle, ‘Pulp Mills Case: A Commentary’ (2010) <http://www.biicl.org/files/5167_pulp_mills_case.pdf> accessed 18 June 2014 [hereinafter ‘Boyle, 2010].

[3] In particular, the Court fleshed out its definitions of ‚sustainable development’, ‘equitable and reasonable use‘ (Judgment, paras. 175-177) and the due diligence obligation with regard to transboundary watercourses (Judgment, paras. 101-105). It also made clarifying remarks concerning the relationship of procedural and substantive obligations (Judgment, paras. 71-79). As these findings remain rather undisputed in the dissenting opinions and due to the limited number of words, I will not address these issues.

[4] See Art. 1 1975 Statute.

[5] Judgment, para. 88.

[6] ‘Celulosas de M’Bopicuá S.A.’, a company formed under Uruguayan law by the Spanish company Empresa Nacional de Celulosa de Espa ña (ENCE).

[7] ‘Botnia S.A.’ and ‘Botnia Fray Bentos S.A.’, companies formed under Uruguayan law by the Finish company Oy Metsä-Botnia AB.

[8] Bill Cormier, ‘Argentines Block Uruguay Bridge Routes’ (2007) The Washington Post <http://www.washingtonpost.com/wp-dyn/content/article/2007/01/31/AR2007013102491.html> accessed 18 June 2014.

[9] Ibid.

[10] The Parties had set up a High-Level Technical Group (GTAN) in order to resolve the dispute. The King of Spain was also asked to reconcile the positions of the Parties. However, both attempts at conciliation were unsuccessful (Judgment, paras. 40 and 43).

[11] Ibid. para. 43.

[12] Ibid., para. 46.

[13] The Articles are included in the Judgment at para. 80.

[14] Judgment, Sep. Op. Greenwood, para. 2.

[15] Ibid., para. 79.

[16] Ibid., para. 78.

[17] Ibid., para. 160.

[18] Ibid., para. 162.

[19] Ibid., para. 165.

[20] Ibid., para. 167. When evidence is presented by the Parties as a counsel, no questioning by the Court or the other Party (‘cross-examination’) is possible. Expert witnesses, however, can be questioned by the Parties and the Court (Article 51 ICJ Statute, Articles 58, 63-65 ICJ Rules).

[21] Ibid., para. 168.

[22] See Judgment, paras. 225, 239, 257, 259, 262.

[23] Ibid., para 204.

[24] Ibid.

[25] Judgment, Diss. Op. Al-Khasawneh and Simma, para. 28; Diss. Op, Vinuesa, para. 100.

[26] Owen MyIntyre,‘The Proceduralisation and Growing Maturity of International Water Law’ (2010) Journal of Environmental Law, 22(3) 475-497, 494 [hereinafter ‘McIntyre, 2010’].

[27] Cymie R. Payne, ‘Pulp Mills on the river Uruguay (Argentina v. Uruguay)‘ The American Journal of International Law (2011), 105 (1) 94-101, 101.

Details

Seiten
11
Jahr
2014
ISBN (eBook)
9783668027329
ISBN (Buch)
9783668027336
Dateigröße
560 KB
Sprache
Englisch
Katalognummer
v301425
Institution / Hochschule
Technische Universität Dresden
Note
1,0
Schlagworte
case pulp mills river uruguay note

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Titel: The International Court of Justice and the Pulp Mills on the River Uruguay. Settling the Dispute between Argentina and Uruguay