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
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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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