A. Introduction
Safeguarding the environment has become a major concern for the international community, and has led to a remarkable expansion of international environmental law. However, the application of environmental law is by far more complex, bringing questions on the balance between sustainable development and environmental protection. These problems are shown in a recent ruling of the International Court of Justice, where a provisional measure requested by Argentina against Uruguay, was rejected.
The conflict between Argentina and Uruguay involves the building of two paper mills on Uruguayan shore, by the River Uruguay. The river is an international watercourse shared by both countries, which also acts as a border line between them. Argentina claims that the operation of these mills, at least in their intended location, would pollute the river and cause irreparable damage to a coast city of Gualeguaychu, on the Argentine side.
The main feature of this case is the existence of a treaty between the countries, the Statute of River Uruguay, entered into by both parties in 1975 (the 1975 Statute). The Treaty establishes an Administrative Commission (CARU), and a joint machinery of consultation for the protection and rational use of River Uruguay[1]. The 1975 Statute has been put to test, as Argentina has alleged a breach of the consultation procedures established by the Statute.
This note seeks to examine the provisional measure requested by Argentina, asking the Court to order the suspension of the building of the paper mills until the ruling on the merits of the case. The Court ruled against the measure, and only limited it's ruling to request the parties to cooperate in good faith and to refrain from taking any actions that could aggravate the conflict.
It will be shown that the Court failed to address a major aspect of the case; the consultation procedure as the core of an environmental protection mechanism, and the possible breach of such procedure as a potential irreparable damage to Argentina.
B. Background
In October 2003, the Spanish company ENCE, received permission from the Uruguayan government to build a cellulose pulp mill in Fray Bentos, a coast city on the Uruguayan side. Citizens of Gualeguaychú, Argentina, a city about 35 kilometers from Fray Bentos, claimed that ENCE's paper plant would pollute the river. After ENCE received its permit, another company, the Finnish Botnia, made public their intention to consider the same area for another pulp mill. Botnia received the environmental authorization to build a mill in February 2005[2].
The paper mills are expected to produce approximately 1.5 million tons of paper annually and represent the largest investment in the history of Uruguay ($1.8 billion). The project has also been funded by a $400 million loan from the World Bank. The investment is expected to increase Uruguayan annual GDP by 2-3%, and provide over 8,000 jobs in two underemployed areas. The construction, which is expected to be completed in 2007 and 2008, has provided thousands of jobs[3].
As for the real environmental impact, it is unclear what effect the paper mills will have. Scientific reports provided by both countries conflict. A recently published report by the World Bank concludes that the mills are in full compliance with international environmental standards. On the other side, Uruguay's own public University of the Republic formed a commission of senior science faculty who found that the paper mills would likely have a large environmental impact.
The Argentine response to the continued construction has been harsh. Argentine citizens, local to the areas which are likely to be affected, have taken to the streets and organized. The three bridges which permit passage between the two countries have been Blockaded and the close economic relationship (trade with Brazil and Argentina accounts for over 50% of all Uruguay's exports) has been severely strained.
C) History of the proceedings before the Court
On 4 May 2006, Argentina filed in the Registry of the Court an Application instituting proceedings against Uruguay concerning alleged violations by Uruguay of obligations incumbent upon it under the Statute of the River Uruguay[4].
In its Application Argentina charged Uruguay with having unilaterally authorized the construction of two pulp mills on the River Uruguay without complying with the obligatory prior notification and consultation procedure. Argentina maintains that these mills, at their current site, jeopardize conservation of the environment of the river and areas affected by it.
To found the jurisdiction of the Court, Argentina cited Article 60, paragraph 1, of the 1975 Statute, which provides that any dispute concerning the interpretation or application of the Statute which cannot be settled by direct negotiations may be submitted by either Party to the Court.
The main issues under dispute to be resolved by the Court are: whether the Paper Mills will affect the River Uruguay; whether the consultation procedure was followed by Uruguay, prior to the building of the mills; and whether the consultation procedure amounts to a veto power, or if the text simply requires the parties to cooperate.
Argentina's Application was accompanied by a request for the indication of provisional measures requiring Uruguay, first, to suspend the authorizations for the construction of the mills and halt building work on them pending a final decision by the Court and, second, to co-operate with Argentina to protect and preserve the aquatic environment of the River Uruguay, to refrain from taking any further unilateral action with respect to construction of the two mills which does not comply with the 1975 Statute
and to refrain as well from any other action which might aggravate the dispute or render its settlement more difficult.
C. Reasoning of the Court
C.1 Suspension of the construction works
With respect to the suspension of the authorizations to build the mills and of the construction work itself, the Court stated that it was not convinced that, if it should later be shown that Uruguay had failed to fully adhere to the provisions of Chapter II of the 1975 Statute dealing with the obligatory prior notification and consultation procedure, any such violations would not be capable of being remedied at the merits stage of the proceedings.
The Court then turned to the rights of a substantive nature invoked by Argentina. It observed that there was nothing on the record to demonstrate that the authorization or the construction itself of the mills posed an imminent threat of irreparable damage to the aquatic environment of the River Uruguay or to the economic and social interests of the riparian inhabitants on the Argentine side of the river.
In any event, the Court added, the threat of any such pollution was not imminent as the mills were not expected to be operational before August 2007 in one case and June 2008 in the other. The Court nevertheless made it clear that, by proceeding with the construction works, Uruguay necessarily bore all risks relating to any finding on the merits that the Court might later make.
C.2 Order to cooperate in good faith and not aggravate the dispute
The Court then turned to the second branch of Argentina's request, an order requiring Uruguay to co-operate in good faith with Argentina and to ensure that the dispute is not aggravated. The Court drew attention to "the importance of the need to ensure environmental protection of shared natural resources while allowing for sustainable economic development".
The Court reminded the Parties that they were required to fulfill their obligations under international law and that they had to implement in good faith the consultation and co-operation procedures provided for by the 1975 Statute, with CARU constituting the envisaged forum in this regard. It encouraged both Parties to refrain from any actions which could render more difficult the resolution of the dispute.
But, as Uruguay reiterated its intention to comply in full with the 1975 Statute of the River Uruguay and, as proof of that intention, offered to "conduct . . . continuous joint monitoring" with Argentina, the Court did not consider that there were grounds for it to indicate the remaining provisional measures requested by Argentina.
D. Follow up after the Court’s Decision
After the ruling of the Court against the provisional measures requested by Argentina, the people at Gualeguaychu re-took the road blockings manifesting against the paper mills. [5]
Uruguay, on its turn, had to send military personnel to ensure the security of the construction sites. Also, it requested the Court to indicate provisional measures, and order Argentina to clear the roads and ensure the free movement of people and goods between the countries.
In light of the escalation of the conflict, Argentina requested King Juan Carlos of Spain[6] to send a mediator to intervene. The mediator convinced ENCE, the Spanish company, to move its construction site to Colonia, Uruguay. This was possible because, in spite of the Court's ruling, ENCE stopped the construction when Argentina requested the provisional measures, thus the plant was only 10% built.
However, the Finnish Botina chose to continue the construction, and by the time the mediator intervened, the plant was 70% on its way. Hence, in was economically non-viable to move the mills to another location. This prevented the mediator from completing his task, and has maintained the conflict to this date.
E. Procedural breach as irreparable damage
The main argument of Argentina before the court was without doubt the breach of procedure by Uruguay. This was of great relevance, as Argentina claimed that this procedure was the only way in which it could have a saying regarding the location of the mills.
The Court disregarded this argument, simply stating that it was not convinced that, should the findings on the merits prove that the mills could pollute, the consequences of the procedural breach could not be solved at the merit's stage; the Court deemed that, should there have been a procedural breach, the damage was not irreparable.
E.1) Irreparable damage to the political process
The conflict between Argentina and Uruguay is a clear cut example of the need to reconcile the inherent and fundamental interdependence of the world environment with the sovereign world of independent states.[7]
The Treaty of River Uruguay reflects the principle of good neighbourliness, which applies particularly where activities carried out in one state might have adverse effects on the environment of another state or areas beyond national jurisdiction. The obligation includes commitments to implement treaty objectives, information sharing, notification, consultation, and eventually participation rights in certain decisions.[8]
When reading the Treaty of River Uruguay one can notice that, rather than establishing a no pollution obligation, it establishes a procedural mechanism of cooperation to allow the parties to provide political solutions to the issues that might arise in the future, on a case by case basis.
This is of major relevance, as this case, as understood by the parties, the Court, and under the light of the 1975 Treaty, is about the balance between Uruguay's sovereign right of sustainable development and Argentina's right of a environmentally safe watercourse. The 1975 Treaty was developed in pursuit of two principles which pull in opposing directions: the state's sovereign rights over their natural resources, and that states must not cause damage to the environment.[9]
Now, the pursuit of this balance was intended by the parties to be a political exercise. From what can be understood from the arguments of Argentina, there seems to be an objection to the location of the mills, rather than to the mills themselves. Argentina appears to acknowledge Uruguay's right to build as many paper mills as it pleases, as long as Argentina is given due consultation, and given the chance to provide the proper input in order to prevent damage that could be avoidable.
Argentina's claim has been that the suspension was required in order not to turn the procedure set out in Chapter II of the 1975 Statute into purely theoretical. Suspension was the only measure that could prevent the choice of sites for the location of the mills from becoming a fait accompli. [10]
The damage to Argentina was that the construction of the mills would erradicate the possibility of changing sites, leaving only the possibility of either allowing the mills at their current site, or not allowing their operation at all. Allowing the further construction took away from the political table one of the options, something contrary to the wording and spirit of the 1975 Statute.
E.2) Irreparable damage to the common management mechanism
The ideal way to protect the river and at the same time, allow Uruguay to pursuit sustainable development, is through political channels. This is why, already in 1975, Argentina and Uruguay created a common management mechanism, to allow them to find that balance through political means; that is, through common management.
Common management institutions have become the basis for environmental regulation and sustainable development. Progressive development of this approach has long been endorsed by international political institutions and adopted by codification bodies, such as the Statute of River Uruguay. [11]
Common management is the logical combination of the idea that watercourse basins are most efficiently managed as an integrated whole, and the need to find an effective institutional machinery to secure the equitable utilization and development. It represents a community of interest approach which goes beyond the allocation of equitable rights, and opens up the possibility of integrated development and international regulation of the watercourse environment. [12]
These mechanisms are usually accompanied by the creation of an international institution (such as CARU) in which the riparian states collaborate in formulating and implementing policies for the development and use of the watercourse. [13] The Court has said in a previous judgment[14] that the joint management of the river is the optimal manner in which riparian States should administer a shared waterway[15].
The best way for the Court provide for the protection of the environment would have been through the preservation of the cooperation mechanisms. This in no way meant that the mere construction of the mills would jeopardize the environment; but the preservation of the mechanisms set out in the Treaty would have been the best way to allow the countries to sort out a political balance between the needs of development of one country, opposed to the environmental needs of the other.
F) Closing Remarks
This note intends to highlight the over-simplicity with which the Court rejected this request for provisional measures, without providing too many reasons for its conclusion. The Court was very careful to stress that the ruling in no way prejudged the merits of the case, and that left unaffected the rights of the parties.[16] It has been fairly noticeable that the Court is not comfortable providing for interim relief.
Proof of this is that Argentina's request for provisional measures was the first to be filed since January 2003. In the past decade, the Court has granted some form of interim relief in response only 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.[17]
All the other requests, pertaining to cases of armed clashes and diplomatic crises, were either rejected or resulted in measures other than those requested. 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.[18]
By easily disregarding Argentina's claim, the Court passed on an opportunity to ascertain the importance of cooperation procedures as a desirable way of balancing sustainable development and environmental protection.
The damage to Argentina was, at least prima facie, evident. This was shown by the development of the circumstances of the case. The fact that ENCE agreed to move, while Botnia was unable to do so, shows that a different approach by the Court could have led to a political solution to the conflict.
This in no way means that the Court's rejection of the provisional measure was wrong. The main problem was the lack of arguments, as it was shown in this note. As Judges Abraham and Renjeva[19] pointed out in their concurrent opinions, the Court should have at least attempted to first satisfy itself with an “appearance of merit” in the applicant's argument.
But this case also brings questions regarding the role of the Court, and the possible aggravation of the dispute. As a matter of fact[20], the conflict was aggravated after the Court rendered its decision: Botnia continued the construction, and Argentine citizens resumed the road blockings. The diplomatic and political channels were severely hurt, and the work of the appointed mediator was made more difficult. It could at least be argued that the Court should have taken into account these issues when rendering its decision. [21]
There was also some weakness in the approach taken by the Court regarding Uruguay’s assumption of risk, and enforceability issues that might arise at the time of rendering a decision on the merits. The fact that the Paper Mills are the biggest investments in the history of Uruguay, and Uruguay's willingness to assume the risk of a negative outcome at the merits' stage, shows either an over-confident Uruguay, or a potential problem with compliance, should the Court decide that Uruguay breached the 1975 Statute.
Finally, this case raises the issue of whether the Court should have applied the precautionary principle on the alleged breach of the cooperation mechanisms. When dealing with environmentally sustainable development, the basic issue now is how it is to be applied and developed in a practical manner, and in specific cases. There is a need to develop a more sophisticated approach to risk assessment and decisionmaking in the face if scientific uncertainty, seeking to apply one of the basic principles of sustainable development, namely the precautionary principle. There is clearly a need for greater policy coordination on the approach which international bodies should take to this question.[22]
Safeguarding the environment has become a major concern for the international community, and has led to a remarkable expansion of international environmental law. However, the application of environmental law is by far more complex, bringing questions on the balance between sustainable development and environmental protection. These problems are shown in a recent ruling of the International Court of Justice, where a provisional measure requested by Argentina against Uruguay, was rejected.
The conflict between Argentina and Uruguay involves the building of two paper mills on Uruguayan shore, by the River Uruguay. The river is an international watercourse shared by both countries, which also acts as a border line between them. Argentina claims that the operation of these mills, at least in their intended location, would pollute the river and cause irreparable damage to a coast city of Gualeguaychu, on the Argentine side.
The main feature of this case is the existence of a treaty between the countries, the Statute of River Uruguay, entered into by both parties in 1975 (the 1975 Statute). The Treaty establishes an Administrative Commission (CARU), and a joint machinery of consultation for the protection and rational use of River Uruguay[1]. The 1975 Statute has been put to test, as Argentina has alleged a breach of the consultation procedures established by the Statute.
This note seeks to examine the provisional measure requested by Argentina, asking the Court to order the suspension of the building of the paper mills until the ruling on the merits of the case. The Court ruled against the measure, and only limited it's ruling to request the parties to cooperate in good faith and to refrain from taking any actions that could aggravate the conflict.
It will be shown that the Court failed to address a major aspect of the case; the consultation procedure as the core of an environmental protection mechanism, and the possible breach of such procedure as a potential irreparable damage to Argentina.
B. Background
In October 2003, the Spanish company ENCE, received permission from the Uruguayan government to build a cellulose pulp mill in Fray Bentos, a coast city on the Uruguayan side. Citizens of Gualeguaychú, Argentina, a city about 35 kilometers from Fray Bentos, claimed that ENCE's paper plant would pollute the river. After ENCE received its permit, another company, the Finnish Botnia, made public their intention to consider the same area for another pulp mill. Botnia received the environmental authorization to build a mill in February 2005[2].
The paper mills are expected to produce approximately 1.5 million tons of paper annually and represent the largest investment in the history of Uruguay ($1.8 billion). The project has also been funded by a $400 million loan from the World Bank. The investment is expected to increase Uruguayan annual GDP by 2-3%, and provide over 8,000 jobs in two underemployed areas. The construction, which is expected to be completed in 2007 and 2008, has provided thousands of jobs[3].
As for the real environmental impact, it is unclear what effect the paper mills will have. Scientific reports provided by both countries conflict. A recently published report by the World Bank concludes that the mills are in full compliance with international environmental standards. On the other side, Uruguay's own public University of the Republic formed a commission of senior science faculty who found that the paper mills would likely have a large environmental impact.
The Argentine response to the continued construction has been harsh. Argentine citizens, local to the areas which are likely to be affected, have taken to the streets and organized. The three bridges which permit passage between the two countries have been Blockaded and the close economic relationship (trade with Brazil and Argentina accounts for over 50% of all Uruguay's exports) has been severely strained.
C) History of the proceedings before the Court
On 4 May 2006, Argentina filed in the Registry of the Court an Application instituting proceedings against Uruguay concerning alleged violations by Uruguay of obligations incumbent upon it under the Statute of the River Uruguay[4].
In its Application Argentina charged Uruguay with having unilaterally authorized the construction of two pulp mills on the River Uruguay without complying with the obligatory prior notification and consultation procedure. Argentina maintains that these mills, at their current site, jeopardize conservation of the environment of the river and areas affected by it.
To found the jurisdiction of the Court, Argentina cited Article 60, paragraph 1, of the 1975 Statute, which provides that any dispute concerning the interpretation or application of the Statute which cannot be settled by direct negotiations may be submitted by either Party to the Court.
The main issues under dispute to be resolved by the Court are: whether the Paper Mills will affect the River Uruguay; whether the consultation procedure was followed by Uruguay, prior to the building of the mills; and whether the consultation procedure amounts to a veto power, or if the text simply requires the parties to cooperate.
Argentina's Application was accompanied by a request for the indication of provisional measures requiring Uruguay, first, to suspend the authorizations for the construction of the mills and halt building work on them pending a final decision by the Court and, second, to co-operate with Argentina to protect and preserve the aquatic environment of the River Uruguay, to refrain from taking any further unilateral action with respect to construction of the two mills which does not comply with the 1975 Statute
and to refrain as well from any other action which might aggravate the dispute or render its settlement more difficult.
C. Reasoning of the Court
C.1 Suspension of the construction works
With respect to the suspension of the authorizations to build the mills and of the construction work itself, the Court stated that it was not convinced that, if it should later be shown that Uruguay had failed to fully adhere to the provisions of Chapter II of the 1975 Statute dealing with the obligatory prior notification and consultation procedure, any such violations would not be capable of being remedied at the merits stage of the proceedings.
The Court then turned to the rights of a substantive nature invoked by Argentina. It observed that there was nothing on the record to demonstrate that the authorization or the construction itself of the mills posed an imminent threat of irreparable damage to the aquatic environment of the River Uruguay or to the economic and social interests of the riparian inhabitants on the Argentine side of the river.
In any event, the Court added, the threat of any such pollution was not imminent as the mills were not expected to be operational before August 2007 in one case and June 2008 in the other. The Court nevertheless made it clear that, by proceeding with the construction works, Uruguay necessarily bore all risks relating to any finding on the merits that the Court might later make.
C.2 Order to cooperate in good faith and not aggravate the dispute
The Court then turned to the second branch of Argentina's request, an order requiring Uruguay to co-operate in good faith with Argentina and to ensure that the dispute is not aggravated. The Court drew attention to "the importance of the need to ensure environmental protection of shared natural resources while allowing for sustainable economic development".
The Court reminded the Parties that they were required to fulfill their obligations under international law and that they had to implement in good faith the consultation and co-operation procedures provided for by the 1975 Statute, with CARU constituting the envisaged forum in this regard. It encouraged both Parties to refrain from any actions which could render more difficult the resolution of the dispute.
But, as Uruguay reiterated its intention to comply in full with the 1975 Statute of the River Uruguay and, as proof of that intention, offered to "conduct . . . continuous joint monitoring" with Argentina, the Court did not consider that there were grounds for it to indicate the remaining provisional measures requested by Argentina.
D. Follow up after the Court’s Decision
After the ruling of the Court against the provisional measures requested by Argentina, the people at Gualeguaychu re-took the road blockings manifesting against the paper mills. [5]
Uruguay, on its turn, had to send military personnel to ensure the security of the construction sites. Also, it requested the Court to indicate provisional measures, and order Argentina to clear the roads and ensure the free movement of people and goods between the countries.
In light of the escalation of the conflict, Argentina requested King Juan Carlos of Spain[6] to send a mediator to intervene. The mediator convinced ENCE, the Spanish company, to move its construction site to Colonia, Uruguay. This was possible because, in spite of the Court's ruling, ENCE stopped the construction when Argentina requested the provisional measures, thus the plant was only 10% built.
However, the Finnish Botina chose to continue the construction, and by the time the mediator intervened, the plant was 70% on its way. Hence, in was economically non-viable to move the mills to another location. This prevented the mediator from completing his task, and has maintained the conflict to this date.
E. Procedural breach as irreparable damage
The main argument of Argentina before the court was without doubt the breach of procedure by Uruguay. This was of great relevance, as Argentina claimed that this procedure was the only way in which it could have a saying regarding the location of the mills.
The Court disregarded this argument, simply stating that it was not convinced that, should the findings on the merits prove that the mills could pollute, the consequences of the procedural breach could not be solved at the merit's stage; the Court deemed that, should there have been a procedural breach, the damage was not irreparable.
E.1) Irreparable damage to the political process
The conflict between Argentina and Uruguay is a clear cut example of the need to reconcile the inherent and fundamental interdependence of the world environment with the sovereign world of independent states.[7]
The Treaty of River Uruguay reflects the principle of good neighbourliness, which applies particularly where activities carried out in one state might have adverse effects on the environment of another state or areas beyond national jurisdiction. The obligation includes commitments to implement treaty objectives, information sharing, notification, consultation, and eventually participation rights in certain decisions.[8]
When reading the Treaty of River Uruguay one can notice that, rather than establishing a no pollution obligation, it establishes a procedural mechanism of cooperation to allow the parties to provide political solutions to the issues that might arise in the future, on a case by case basis.
This is of major relevance, as this case, as understood by the parties, the Court, and under the light of the 1975 Treaty, is about the balance between Uruguay's sovereign right of sustainable development and Argentina's right of a environmentally safe watercourse. The 1975 Treaty was developed in pursuit of two principles which pull in opposing directions: the state's sovereign rights over their natural resources, and that states must not cause damage to the environment.[9]
Now, the pursuit of this balance was intended by the parties to be a political exercise. From what can be understood from the arguments of Argentina, there seems to be an objection to the location of the mills, rather than to the mills themselves. Argentina appears to acknowledge Uruguay's right to build as many paper mills as it pleases, as long as Argentina is given due consultation, and given the chance to provide the proper input in order to prevent damage that could be avoidable.
Argentina's claim has been that the suspension was required in order not to turn the procedure set out in Chapter II of the 1975 Statute into purely theoretical. Suspension was the only measure that could prevent the choice of sites for the location of the mills from becoming a fait accompli. [10]
The damage to Argentina was that the construction of the mills would erradicate the possibility of changing sites, leaving only the possibility of either allowing the mills at their current site, or not allowing their operation at all. Allowing the further construction took away from the political table one of the options, something contrary to the wording and spirit of the 1975 Statute.
E.2) Irreparable damage to the common management mechanism
The ideal way to protect the river and at the same time, allow Uruguay to pursuit sustainable development, is through political channels. This is why, already in 1975, Argentina and Uruguay created a common management mechanism, to allow them to find that balance through political means; that is, through common management.
Common management institutions have become the basis for environmental regulation and sustainable development. Progressive development of this approach has long been endorsed by international political institutions and adopted by codification bodies, such as the Statute of River Uruguay. [11]
Common management is the logical combination of the idea that watercourse basins are most efficiently managed as an integrated whole, and the need to find an effective institutional machinery to secure the equitable utilization and development. It represents a community of interest approach which goes beyond the allocation of equitable rights, and opens up the possibility of integrated development and international regulation of the watercourse environment. [12]
These mechanisms are usually accompanied by the creation of an international institution (such as CARU) in which the riparian states collaborate in formulating and implementing policies for the development and use of the watercourse. [13] The Court has said in a previous judgment[14] that the joint management of the river is the optimal manner in which riparian States should administer a shared waterway[15].
The best way for the Court provide for the protection of the environment would have been through the preservation of the cooperation mechanisms. This in no way meant that the mere construction of the mills would jeopardize the environment; but the preservation of the mechanisms set out in the Treaty would have been the best way to allow the countries to sort out a political balance between the needs of development of one country, opposed to the environmental needs of the other.
F) Closing Remarks
This note intends to highlight the over-simplicity with which the Court rejected this request for provisional measures, without providing too many reasons for its conclusion. The Court was very careful to stress that the ruling in no way prejudged the merits of the case, and that left unaffected the rights of the parties.[16] It has been fairly noticeable that the Court is not comfortable providing for interim relief.
Proof of this is that Argentina's request for provisional measures was the first to be filed since January 2003. In the past decade, the Court has granted some form of interim relief in response only 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.[17]
All the other requests, pertaining to cases of armed clashes and diplomatic crises, were either rejected or resulted in measures other than those requested. 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.[18]
By easily disregarding Argentina's claim, the Court passed on an opportunity to ascertain the importance of cooperation procedures as a desirable way of balancing sustainable development and environmental protection.
The damage to Argentina was, at least prima facie, evident. This was shown by the development of the circumstances of the case. The fact that ENCE agreed to move, while Botnia was unable to do so, shows that a different approach by the Court could have led to a political solution to the conflict.
This in no way means that the Court's rejection of the provisional measure was wrong. The main problem was the lack of arguments, as it was shown in this note. As Judges Abraham and Renjeva[19] pointed out in their concurrent opinions, the Court should have at least attempted to first satisfy itself with an “appearance of merit” in the applicant's argument.
But this case also brings questions regarding the role of the Court, and the possible aggravation of the dispute. As a matter of fact[20], the conflict was aggravated after the Court rendered its decision: Botnia continued the construction, and Argentine citizens resumed the road blockings. The diplomatic and political channels were severely hurt, and the work of the appointed mediator was made more difficult. It could at least be argued that the Court should have taken into account these issues when rendering its decision. [21]
There was also some weakness in the approach taken by the Court regarding Uruguay’s assumption of risk, and enforceability issues that might arise at the time of rendering a decision on the merits. The fact that the Paper Mills are the biggest investments in the history of Uruguay, and Uruguay's willingness to assume the risk of a negative outcome at the merits' stage, shows either an over-confident Uruguay, or a potential problem with compliance, should the Court decide that Uruguay breached the 1975 Statute.
Finally, this case raises the issue of whether the Court should have applied the precautionary principle on the alleged breach of the cooperation mechanisms. When dealing with environmentally sustainable development, the basic issue now is how it is to be applied and developed in a practical manner, and in specific cases. There is a need to develop a more sophisticated approach to risk assessment and decisionmaking in the face if scientific uncertainty, seeking to apply one of the basic principles of sustainable development, namely the precautionary principle. There is clearly a need for greater policy coordination on the approach which international bodies should take to this question.[22]
[1] Statute of River Uruguay, signed at Salto on Feb. 26, 1975, entered into force Sept. 18, 1976
[2] Source: Wikipedia, see http://en.wikipedia.org/wiki/Cellulose_plant_conflict_between_Argentina_and_Uruguay
[3] Stanford Model United Nations Conference 2006 “Argentina v. Uruguay: Paper Mills on the River Uruguay”, by Marcus Williams and Carolyn Forstein
[4] Pulp Mills on the River Uruguay, provisional Measures, International Court of Justice, 13 July 2006
[5] Clarín (10 October 2006). Papeleras: los ambientalistas de Gualeguaychú vuelven a los cortes de ruta. Retrieved on 14 October 2006.
[6] ^ Clarín (5 November 2006). Los asambleístas de Gualeguaychú también apoyaron la intervención del rey Juan Carlos. Retrieved on 5 November 2006.
[7] Environmental Law, the Economy and Sustainable Development, 2000. Revesz, Sands and Stewart. Cambridge University Press, 2000. p- 370
[8] Ibid p- 374
[9] Ibid p- 373
[10] Pulp Mills on the River Uruguay, provisional Measures, International Court of Justice, 13 July 2006, paragraph 66
[11] International Law and the Environment, Second Edition. P. W. Birnie and A. E. Boyle, Oxford University Press, 2002. p 304/305)
[12] Ibid p- 304
[13] Ibid p- 304/305
[14] Case Concerning the Gabcikovo-Nagymaros Project, 25 September 1997, ICJ Reports 1997
[15] Pulp Mills on the River Uruguay (or not, as the case may be),Professor Malgosia Fitzmaurice, The Hague Justice Portal, http://www.thehaguelegalcapital.nl/eCache/DEF/5/048.html
[16] See also The Statute of the International Court of Justice, A Commentary. Zimmermann, Tomuschat, Ollers-Frahm, Oxford University Press, 2006, p- 933, Non anticipation of the judgment.
[17] Argentina – Uruguay Environmental Dispute before the World Court. By Pieter H. F. Bekker. May 16, 2006. ASIL Insight. Volume 10, Issue 11.
[18] Ibid
[19] For concurrent votes, see ICJ web site: http://www.icj-cij.org/icjwww/idocket/iau/iauframe.htm
[20] See: The Statute of the International Court of Justice, A Commentary. Zimmermann, Tomuschat, Ollers-Frahm, Oxford University Press, 2006, p- 932, Non aggravation of the Dispute. Also: Land and Maritime Boundary Case, ICJ Reports 1996.
[21] The Statute of the International Court of Justice, A Commentary. Zimmermann, Tomuschat, Ollers-Frahm, Oxford University Press, 2006, p- 931
[22] Environmental Law, the Economy and Sustainable Development, 2000. Revesz, Sands and Stewart. Cambridge University Press, 2000. p- 408
No hay comentarios:
Publicar un comentario