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Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 14

Date of judgement: 20 April 2010

Court: International Court of Justice 

Citation(s): Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 14

Short summary 

The court introduced the concept of binding environmental impact assessments (EIAs) into international environmental laws and further elaborated upon the provisions of the International Law Commission’s draft, as well as the Trail Smelter decision. 

Summary by: Robert Los

Link to original judgement 

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Weight of decision 

This decision handed down by the International Court of Justice (ICJ) bears immense weight.  

Key facts

In October 2003, the Uruguayan government granted permission to a Spanish Company, ENCE, to build a pulp mill in Fray Bentos on the River Uruguay. Botnia, a Finnish company, then also received environmental authorization to build a mill in February 2005. The River Uruguay forms a border between Argentina and Uruguay and its use is regulated by the Statute of the Uruguay River, a bilateral treaty entered into by the two countries in 1975 (the “Statute“).

Argentina brought a complaint before the ICJ on 4 May 2006, alleging that the Uruguayan government had violated the Statute. Argentina initially sought a provisional measures order from the ICJ to suspend construction of the pulp mills, but this was dismissed. 

Argentina’s principal claims were that: 

  • Uruguay had not complied with the notification and consultation procedure set out in the Statute by authorizing the construction of two pulp mills without the prior consent of Argentina; and 
  • The mills would have an environmental impact upon the river and surrounding areas, and in particular that they would breach Uruguay’s obligation under the Statute to preserve the aquatic environment of the river by failing to protect biodiversity and fisheries.

Argentina consequently sought compensation, an end to construction, and a guarantee of compliance with the Statute in the future.

Uruguay argued that its only obligations had been to inform Argentina, which it had done, albeit after its decision had been made. Furthermore, the technology used would avoid polluting the river, as state-of-the-art waste cleansing equipment – which had been adopted by both the United States and the European Union as the best available technology – was going to be used. This position was supported by an independent World Bank study. 

Summary of holding

The ICJ held that Uruguay breached its procedural obligations by not informing the Administrative Commission of the River Uruguay (“CARU”) of its plans to construct the mills before it issued its environmental authorisations. 

Although Uruguay did notify Argentina, this communication did not take place through CARU and only occurred after the Uruguayan government had issued its authorisations. The ICJ held that, as a result, Uruguay had “disregarded the whole of the cooperation mechanisms provided for in Article 7 to 12 of the…Statute“ (para. 149). In terms of remedy, the ICJ considered that its declaration of breach constituted appropriate satisfaction.

However, the ICJ did not uphold any of the environmental claims made by Argentina. In what is potentially the most important passage of its holding, it stated that the need for an environmental impact assessment (where there is a risk that the proposed activity may have a significantly adverse impact in a trans-boundary context) has gained so much acceptance amongst States that it may now be considered “a requirement under general international law“. (para. 204)

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Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex. rel., Barez

Date:  1 July 1982

Court: Supreme Court of the United States

Citation:  458 U.S. 592

Short summary 

The United States Supreme Court held that a State can establish standing to bring suit under the doctrine of parens patriae when its quasi-sovereign interests have been injured. Quasi-sovereign interests include those interests that the State has in the health and well-being – both physical and economic – of its citizens. When Virginia farmers discriminated against Puerto Rican farmworkers in violation of federal statute, Puerto Rico alleged an injury sufficient to establish parens patriae standing.

Summary by:  Sara Sam-Njogu

Link to original judgment

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Weight of decision 

Given the jurisdiction of the US Supreme Court, this decision is significant for States, and potentially other countries, that wish to establish standing when a large segment of their population has been physically and/or economically harmed.

Key facts

Respondent was the Commonwealth of Puerto Rico, which sued several apple farmers in the state of Virginia. Puerto Rico contended that despite a substantial advertised need for temporary farm laborers to pick the large 1978 apple crop, its farmworkers had been improperly refused employment based upon their Puerto Rican citizenship, illegal discrimination under several federal laws. Many of the workers were advised by the US Department of Labor not to travel to Virginia because growers were refusing to employ the workers who had already arrived, and those who had been employed were dismissed quickly for alleged unproductivity. The growers were hiring foreign workers instead. Puerto Rico sought to establish parens patriae standing because this discrimination invaded the Commonwealth’s interest in its citizens’ full and equal participation in the federal employment service scheme under the relevant federal laws.

Previous instances 

In 1979, Puerto Rico filed suit in United States District Court for the Western District of Virginia (469 F.Supp. 928). While the court found that Puerto Rico may be capable of asserting parens patriae interests for some cases, it held that the relatively small number of farmworkers refused employment in this case – approximately 787 – meant that the injury was too small to Puerto Rico’s economy overall to establish standing.

On appeal, the Fourth Circuit reversed, holding that the District Court’s interpretation of the issue was too narrow (632 F.2d. 365). Instead, the proper focus was the “deliberate efforts to stigmatize the labor force as inferior,” conduct that would have an indirect effect on a substantial portion of Puerto Rico’s citizenry. It found the injury sufficient to establish parens patriae standing.

The Supreme Court granted certiorari, leading to the current holding.

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THE TRAIL SMELTER ARBITRATION CASE (UNITED STATES VS CANADA)

Date of judgement: 16 April 1938 and 11 March 1941

Citation(s): UN REPORTS OF INTERNATIONAL ARBITRAL AWARDS, Trail Smelter case (USA v. Canada), 16. April 1938 and 11. March 1941, Volume III pp. 1905-1982

Short summary 

This arbitration case between the United States (U.S.) and Canada is the foundational decision for the development of the prohibition of significant transboundary environmental damage in international environmental law. 

Summary by: Robert Los

Link to original judgement 

Click here to open the case in PDF format


Weight of decision 

The decision(s) of the Arbitrational Tribunal continue to bear immense weight in the realm of international law.  

Key facts

A zinc and lead smelter operating since 1896 in the Canadian town of Trail in British Columbia, located 16 km from the U.S. border, became the subject of dispute in this case. 

Between 1925 and 1927, two smokestacks were added to the plant. This caused an increase in pollutant emissions, specifically a doubling of sulfur dioxide. This reached U.S. soil in the form of “acid rain” and caused crop failures and damage in the Columbia River Valley (Washington State). Between 1927 and 1935, the U.S. government protested to the Canadian government regarding this damage to the Columbia River Valley. 

In 1928, both governments commissioned the International Joint Commission by the United States and Canada to conduct arbitration proceedings. The Commission submitted its final report in 1931, which proposed that the Canadian government pay damages of $350,000 USD for the damage caused, and that emissions from the Trail plant be limited. 

Canada paid the damages. However, no improvements were seen with regard to pollutant emissions, and the conflict began again. For this reason, in 1935 the Convention for Settlement of Difficulties Arising from Operation of Smelter at Trail, B.C., was signed, and the parties agreed to have the following questions settled by arbitration:

1. Whether the Trail plant caused any damage to the State of Washington since 1932, and if so what indemnity should be paid?

2. If the answer to the first question is in the affirmative, whether said damage should be stopped in the future, and if so, to what extent?

3. If the damage should be stopped, what measures should the Trail Smelter adopt? (Possibly subject to conditions or stipulations).

4. What indemnity or compensation, if any, should Canada pay following the answers to questions 2 and 3?

Summary of holding

In its first decision in 1938 regarding the first question, the Arbitration Tribunal determined that Canada had to pay damages to the U.S. government for the years 1932 to 1937. However, this compensation payment only applied to the damage caused to the soil of the Columbia River Valley. The pollution of the air was not considered to be damage, but rather only a transport medium for the exhaust gases. The U.S. also tried to prove damage to forestry, agriculture, and livestock, but the tribunal rejected this for lack of convincing evidence. 

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