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INTERNATIONAL DECISIONS
EDITED BY DAVID J. BEDERMAN
InternationalCourtoffustice- duty ofenvironmental impactassessment-rightto develop- duty to notify
and consult-internationalstandards-equitableand reasonableuse of watercourses-dutyto prevent
pollution
PULP MILLS ON THE RIVER URUGUAY (Argentina v. Uruguay). At [Link]
International Court of Justice, April 20, 2010.
On April 20, 2010, the International Court of Justice (ICJ) announced its judgment in a
dispute between Argentina and Uruguay concerning Uruguay's authorization of industrial
development on the banks of the Uruguay River (see Sketch-map No. 2, prepared by ICJ),
which forms the international boundary between the two countries.' A bilateral mechanism
established by the 1975 Statute of the River Uruguay (1975 Statute)-the Administrative
Commission of the River Uruguay (CARU)- exists to provide joint management of the river,
but it was unable to prevent or resolve this conflict. In May 2006, after months of unsuccessful
negotiation with Uruguay, Argentina submitted its dispute to the ICJ, along with a request for
provisional measures. 2 The parties agreed that the ICJ had jurisdiction under Article 60 of the
1975 Statute.
Noting the parties' obligations under international law and their specific obligations "to
implement in good faith the consultation and co-operation procedures provided for by the
1975 Statute" through CARU (para. 82), the Court had previously declined to order the pro-
visional measures requested by Argentina-namely, to suspend authorization and construc-
tion of two pulp mills-as it was not convinced that procedural breaches or continued con-
struction of the mills would lead to any harm that could not be reversed later, at Uruguay's cost,
if Argentina prevailed on the merits (paras. 71-78). It also subsequently denied Uruguay's
request for provisional measures ordering Argentina to remove protesters who were blockading
bridges across the river as there did not appear to be any imminent risk that Uruguay's rights
would be irreparably harmed.3 The protest blockade continued until June 2010, when it was
lifted under pressure from Argentina's government.
' Pulp Mills on the River Uruguay (Arg. v. Uru.) (Int'l Ct. Justice Apr. 20, 2010). The basic documents, deci-
sions, pleadings, transcripts, press releases, and other materials for this case and others are available on the Court's
Web site, [Link]
2 Pulp Mills on the River Uruguay (Arg. v. Uru.), Provisional Measures (Int'l Ct. Justice July 13, 2006) [here-
inafter July Order].
3 Pulp Mills on the River Uruguay (Arg. v. Uru.), Provisional Measures, para. 8 (Int'l Ct. Justice Jan. 23, 2007).
For more discussion of the blockades and related Mercosur arbitration, see Cymie R. Payne, Pulp Mills on the River
Uruguay, 14 ASIL INSIGHTS (2010).
94
2011] INTERNATIONAL DECISIONS 95
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96 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 105
The Court based its judgment in the merits phase on the 1975 Statute and general prin-
ciples of international law. It ruled that by unilaterally authorizing the pulp mills and allowing
construction to start, Uruguay breached procedural obligations established by the 1975 Statute
to notify and consult with Argentina. However, the Court found that its declaration of Uru-
guay's procedural breach constituted "appropriate satisfaction" requiring no further remedy
(para. 282). The Court rejected Argentina's claim that Uruguay breached substantive treaty
obligations to coordinate with Argentina through CARU and to monitor and prevent pollu-
tion of the water and riverbed. The Court also rejected Argentina's request for guarantees of
nonrepetition, stating, "As a general rule, there is no reason to suppose that a State whose act
or conduct has been declared wrongful by the Court will repeat that act or conduct in the
future, since its good faith must be presumed" (para. 278).
As background, two Uruguayan companies created by the Finnish company Oy Metsi-
BotniaAB started construction of a cellulose pulp plant in 2005, the same year that the Spanish
company Empresa Nacional de Celulosa de Espafia (ENCE) received authorization to begin
ground clearing on a second. Together, the mills represented an investment of $1.7 billion, the
largest in Uruguay's history.' On both sides of the river, citizens worried about dioxin, furan,
and other pulp plant pollutants harming fish, birds, honeybees, and fruit crops.' In Uruguay,
many argued that they needed the jobs and export income from the pulp mills, but on the
Argentine side of the river, people expected to receive no economic benefit from the mills and
feared harm to agriculture, fisheries, and tourism. Eventually, the funders of the ENCE project
pulled out, leaving only the Botnia plant as a subject of the dispute.
Argentina claimed that Uruguay breached the following obligations under the 1975 Statute:
to take all necessary measures for the optimum and rational utilization of the river; to notify
CARU and Argentina; to comply with procedures prescribed in Chapter II of the 1975 Statute
(regarding works liable to affect the regime of the river or the quality of its waters); to take all
necessary measures to preserve the environment, prevent pollution, and protect biodiversity,
including to prepare a full and objective environmental impact study; and to cooperate in
preventing pollution and protecting the environment and fisheries (para. 22). Argentina
demanded that Uruguay cease its wrongful conduct, comply with its obligations, reestablish
"on the ground and in legal terms" the situation that existed previously, and make reparations
for injury caused by its breach (id.). Argentina's claims of air, noise, and visual pollution from
the pulp plant were excluded by the Court's determination that its jurisdiction was limited to
the interpretation or application of the 1975 Statute. Since that statute is primarily concerned
with navigation, "the r6gime of the river," and water quality, only air pollution affecting the
river's water quality would have been within the jurisdiction conferred by the 1975 Statute
(paras. 52, 264).
Uruguay argued that Argentina had not demonstrated any harm to the river from the alleged
breaches that would be sufficient to warrant dismantling the pulp plant (restoring the situation
on the ground). It further stated that removing the plant would cause substantial economic
harm to Uruguay, disproportionate to the claimed breach. Instead, should the Court find that
it was in breach, Uruguay asked the Court to limit the remedy to a declaratory judgment, an
WASH. POST,
SJulyOrder, supra note 2, para. 48; Louise Egan,Argentina,UruguaySplitoverPlannedPulpMills,
Aug. 14, 2005, at Al6.
1 Egan, supra note 4.
2011]1 INTERNATIONAL DECISIONS 97
order of any additional environmental protective measures found necessary, and monetary
compensation (para. 23).
With regard to its procedural claims, Argentina charged that Uruguay failed to notify and
consult with it on the two planned pulp mills, thereby breaching its obligations under the 1975
Statute. Uruguay responded that there was effective notification and consultation through the
2005-06 meetings of the countries' foreign ministers and the High-Level Technical Group
(para. 40). The Court concluded that Uruguay should have informed Argentina, through
CARU, when it was prepared to issue initial environmental authorizations for the pulp mills
(paras. 104-07). As it did not do so, Uruguay was in breach of its obligation to inform, notify,
and negotiate under the 1975 Statute (para. 158).
In its analysis, the Court emphasized that the obligation to negotiate is subject to the prin-
ciple of good faith and includes the obligation to conduct meaningful negotiations. To this
end, Uruguay should not have authorized the initial construction work during the negotiations
(paras. 144-48), although it could have proceeded with the construction "at its own risk" sub-
sequent to negotiations and before the Court's judgment (para. 154).'
As a preliminary to its discussion of substantive issues, the Court rejected Argentina's posi-
tion that the 1975 Statute's precautionary approach obligated Uruguay to bear the burden of
proving that its industrial development would not cause significant damage to the environ-
ment. The Court stated that it is the duty of the party asserting a fact to establish its existence
(para. 162) and that, "while a precautionary approach may be relevant in the interpretation and
application of the provisions of the Statute, it does not follow that it operates as a reversal of
the burden of proof" (para. 164).
Turning to Uruguay's substantive obligations, the ICJ found that they were defined by the
1975 Statute and that they were consistent with the principles of pollution prevention and
cooperation that the Court had invoked in previous decisions (paras 177, 185).
In considering the balance of uses of the river, the Court stated that the purpose of the 1975
Statute, set out in Article 1, is to achieve "optimum and rational utilization of the river," but
that the article did not establish the rights and obligations of the parties (para. 173). Invoking
Articles 1 and 27 of the 1975 Statute, along with the principle of equitable and reasonable use,
Argentina argued that account must be taken of preexisting legitimate uses of the river, includ-
ing recreational and tourist uses. 8 Uruguay argued, however, that those preexisting uses should
be on an equal footing with new uses, such as the pulp mill. The Court did not affirm either
view but referred the parties back to their obligations of consultation and cooperation, com-
menting that "Article 27 embodies this interconnectedness between equitable and reasonable
6 In Judge Skotnikov's view, the 1975 Statute required Uruguay either to abandon the project or to refer it to
the Court, but Uruguay did not have the legal option of proceeding with construction. Decl., Slotnikov, J. ("The
provisions of Articles 7 to 12 of the 1975 Statute are clearly intended to prevent unilateral action which is not in
conformity with the substantive provisions of the Statute."). See also Diss. Op., Vinuesa, J. ad hoc, paras 7-9. But
see Lac Lanoux Arbitration (Fr. v. Spain), 24 ILR 101, paras. 5, 11, 16 (1957) (arbitral tribunal interpreting a bilat-
eral river treaty to require France to notify and consult with Spain with regard to proposed use of the river in French
territory, but without either the treaty or general international law requiring Spain's consent).
7 Gabbikovo-Nagymaros Project (Hung. v. Slovk.), 1997 ICJ REP. 7, paras. 140, 193 (Sept. 25) (citing Legality
of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ REP. 226, paras. 29, 186 (July 8)).
" See Convention on the Law of the Non-navigational Uses of International Watercourses, Art. 5, May 21, 1997,
36 ILM 700 (1997).
98 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 105
utilization of a shared resource and the balance between economic development and environ-
mental protection that is the essence of sustainable development" (para. 177).
Argentina claimed that Uruguay had failed to take all necessary measures as required by the
undertaking in Article 41 of the 1975 Statute to "protect and preserve the aquatic environment
and, in particular, to prevent its pollution, by prescribing appropriate rules and measures in
accordance with applicable international agreements and in keeping, where relevant, with the
guidelines and recommendations of international technical bodies." Uruguay responded that
the plant complied with applicable laws and regulations and that it satisfied best-available-
technology standards (para. 192).
After reminding the parties of the customary international law obligation "to ensure that
activities within their jurisdiction and control respect the environment of other States or of
areas beyond national control" (para. 193), the Court found that Article 41 requires the parties
to adopt domestic pollution prevention regulations and measures that meet international stan-
dards. The Court concluded that the question of Uruguay's possible breach of its obligation
to prevent pollution should be measured against the 1975 Statute, the positions and rules coor-
dinated with Argentina through CARU, and the regulations adopted by each party (para. 200).
In carrying out this analysis, the Court observed that the practice of environmental impact
assessment (EIA)
has gained so much acceptance among States that it may now be considered a requirement
under general international law to undertake an environmental impact assessment where
there is a risk that the proposed industrial activity may have a significant adverse impact
in a transboundary context, in particular, on a shared resource. (Para. 204)
Although the 1975 Statute did not require an EIA, Uruguay had prepared one. While both
parties agreed that international law required such an assessment, Argentina argued that the
scope of Uruguay's EIA did not satisfy international standards, particularly with regard to eval-
uation of siting alternatives and public consultation. The Court found that Uruguay's EIA was
adequate in both respects (paras. 210, 211, 219).
The Court next assessed the production technology used by the Botnia mill. It stated that
the required standards for meeting obligations to prevent pollution and protect the river's
aquatic environment were those established by "the guidelines and recommendations of inter-
national technical bodies" as prescribed in Article 4 1(a) of the 1975 Statute. Analyzing the
extensive and conflicting evidence submitted, the Court determined that the technology used
met that standard (para. 223). In particular, the Court compared the project with European
Commission standards and found no evidence that it was not compliant in terms of technology
employed or discharges of effluents (para. 225).
In appraising the effects of the pulp mill on water quality, the Court compared, for a number
of specific pollutants, "a vast amount" of scientific data and analysis produced before and after
the plant started operation (paras. 229-64). It specifically noted that it would "principally
weigh and evaluate the data, rather than the conflicting interpretations given to it by the Parties
or their experts and consultants" (para. 265). Based on the information available to it, the
Court found that there is "no conclusive evidence in the record" to show that Uruguay had
failed to act with the requisite due diligence or that pollution from the pulp mill had had a
harmful effect on the river's water quality or ecological balance (para. 265).
2011] INTERNATIONAL DECISIONS 99
The Court's judgment includes a pointed criticism of the parties' use of experts. When called as
witnesses, experts may be examined by the parties and the Court, as provided in the Statute (Article
51) and the Rules of Court (Articles 58, 63--65). In this case, however, both sides presented their
experts as counsel, and they were therefore not subject to questioning either by the Court or the
other party. The Court indicated that it would have been more helpful had those who were appear-
ing to provide scientific or technical evidence been presented as expert witnesses (para. 167).
Judges Al-Khastaneh and Simma went beyond the majority's criticism of experts presenting
scientific evidence as counsel: "we do not agree with the Court's passive approach to the Parties'
conduct here" (Dissent, para. 6). Judges, who must weigh evidence that is highly complex and
technical, face a fundamental problem:
[T] he insights to make sound legal decisions necessarily emanate from experts consulted
by the Court, even though it certainly remains for the Court to discharge the exclusively
judicial functions, such as the interpretation of legal terms, the legal categorization of
factual issues, and the assessment of the burden of proof. (Id., para. 12).
The dissenting judges found it unacceptable that the Court, in their view, relied on tradi-
tional rules allocating the burden of proof to Argentina and then found that Argentina had not
made its case-even though the judges themselves were not in a position to "fully compre-
hend" Argentina's evidence (Dissent, para. 5). In a separate declaration, Judge Yusuf was sim-
ilarly critical of the Court's failure to avail itself of outside expertise.
The dissenting opinion suggested several alternatives that the Court might have used to
obtain expert opinion in this case. Procedural safeguards would have been available under the
Rules of Court through Article 62, which allows the Court to call on parties to produce evi-
dence or explanations, and Articles 64(b) and 65, which provide for examination, under the
president's control, of party experts by judges and opposing counsel (Dissent, para. 7). The
Court might also have appointed experts, as authorized by Article 50 of the Court's Statute
(id., para. 8) and the Rules of Court, which has been done with success by the World Trade
Organization's Dispute Settlement Body (id., para. 16).'
This judgment marks both an advance and a consolidation in the ICJ's jurisprudence on
pollution, sustainable development, and shared watercourses. As noted above, the Court fre-
quently referred to its own previous cases as interpretive tools for its analysis of the 1975 Stat-
ute. The Court's treatment of environmental impact assessment and sustainable development
are considered further here.
One of the most significant outcomes of the case is the Court's recognition that EIA is a prac-
tice that has become an obligation of general international law in situations where a proposed
industrial activity may have a significant adverse impact on another state or a shared natural
resource. The Court's comments are helpful, and they reflect standard practice in defining
some of the issues that states should consider when implementing the obligation to carry out
9 As the dissent also noted (para. 15), other innovative approaches would be available to the Court under
Article 50. The tribunal in the GuyanalSurinamearbitration (UN Law of the Sea Annex VII Arb. Trib. Sept. 17,
2007), at [Link] (reported by Stephen Fietta at 102 AJIL 119 (2008)), appointed an expert with
specific instructions and gave the parties an opportunity to comment on the expert's report, and the tribunal in the
Iron Rhine (7jzeren Rin' Railway (Belg./Neth.) arbitration (May 24, 2005), at [Link] took a
hybrid approach, advising the parties to establish a post-award committee of experts.
100 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 105
EIA through their own domestic legislation or project-authorization procedures. For example,
considerations must include the nature and magnitude of the proposed development, its likely
adverse impact on the environment, and the need to exercise due diligence in conducting the
EIA. In light ofboth best practice and this dispute, the Court's indication that an EIA must be con-
ducted "prior to the implementation of a project" (para. 205) should perhaps have required EIA
prior to any decision to authorize a proposed project, thereby ensuring that the results of the EIA
can influence the decision and the overall design ofthe project. 1 The Court's statement that an EIA
must be followed, when necessary, by continuous monitoring of the project's effects on the envi-
ronment throughout the project's life is reflective of best practice and logically flows from "due dil-
igence, and the duty of vigilance and prevention which it implies" (para. 204). Somewhat surpris-
ingly, given the emphasis on public consultation in modern treaties such as the Espoo and Aarhus
Conventions," the Court did not find a legal obligation to consult with the public, although it did
take note that Uruguay consulted with the affected populations of both nations (para. 219).
The ICJ characterized this case as highlighting "the importance of the need to ensure environ-
mental protection of shared natural resources while allowing for sustainable economic develop-
ment." 1 2 The Court has fleshed out the definitions of "sustainable development" and "equitable
and reasonable use" ofshared transboundary watercourses by interpreting those expressions in light
of the facts of this case; that is, although the decision relies on the 1975 Statute of the River Uruguay,
the Court makes systematic use of the two norms in interpreting the bilateral agreement.
It is not clear whether the legal framework adopted by the Court ever allows for a state to
oppose economic development successfully. Three factors stand out as high hurdles for envi-
ronmental protection claims: limited jurisdiction, the Court's provisional measures jurispru-
dence, and standards for the burden of proof.
First, in this case the Court settled the dispute between Argentina and Uruguay regarding
the specific matter before it: water quality in the River Uruguay. Although both governments
promised to strengthen their cooperation through CARU to address this issue, the direct
impact of the decision ends there. Because the judgment was necessarily limited to the issues
within the ICJ's jurisdiction, it leaves various stakeholders dissatisfied. Air pollution, odors,
visual effects (such as nighttime lighting), noise, and public health effects were beyond the
scope of the Court's review. This jurisdictional limitation will vary from case to case, but it is
likely to recur as a limitation on resolving disputes of this nature.
Second, the Court's stance in refusing to order provisional measures to halt construction of dis-
puted projects creates new facts on the ground-ones that seem bound to influence the outcome.1 3
Once a major capital project is substantially completed, will it ever be realistic to expect a state to
1o See the dissenting opinion ofJudge ad hoc Vinuesa (at paragraph 65): "all of the consultations ... took place
after environmental authorizations had been granted, and therefore all are meaningless."
" Convention on Environmental Impact Assessment in a Transboundary Context of the United Nations Eco-
nomic Commission for Europe, Art. 2(6), Dec. 25, 1991, 1989 UNTS 309, 30 ILM 800 (1991); Convention on
Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters,
June 25, 1998, 2161 UNTS 447, 38 ILM 517 (1999). Both Conventions are available at [Link]
env/.
12 July Order, supra note 2, para. 80.
13 Passage Through the Great Belt (Fin. v. Den.), Provisional Measures, 1991 ICJ REP. 12, para. 19 (July 29);
cf MOX Plant (It. v. UK), ITLOS Case No. 10, Provisional Measures, paras. 74, 81, 89 (Dec. 3, 2001), 41 ILM
405 (2002) (rejecting Ireland's request for provisional measures regarding operation ofa MOX processing plant and
shipping of radioactive materials in the Irish Sea, but prescribing alternative measures to preserve the parties' rights
pending establishment of an arbitral tribunal).
2011] INTERNATIONAL DECISIONS 101
dismantle it? But the reverse is also true: a practice ofissuing provisional measures delaying construc-
tion may well lead to the collapse of worthwhile development projects.
Third, proving that a project will be harmful to the environment, before it is built, presents
serious problems. In addition to the counterfactual comparisons that need to be made, multiple
factors affect the outcome, much crucial information may be unknown or otherwise unavail-
able, and expert testimony may fail to provide reliable closure. Using a precautionary approach
to shift the burden of proof, as Argentina requested, would help address the problem of proof,
but the Court rejected such an approach. Within domestic legal systems, the problem of proof
has been dealt with legislatively and through strict liability rules-an option that is not yet
available in international law. Judge Greenwood, in his separate opinion (para. 26), noted that
"the nature of environmental disputes is such that the application of the higher standard of
proof would have the effect of making it all but impossible for a State to discharge the burden
of proof," and argued that "the balance of probabilities (sometimes described as the balance of
the evidence)" is the appropriate standard of proof.
With regard to what the Court's judgment does not do, it makes reference to, but does not
clarify the status of, the International Law Commission's 2001 draft articles on Prevention of
Transboundary Harm from Hazardous Activities" as a source of general international law.
Although both parties make reference to the draft articles (paras. 152, 203, 215), the Court's
only expression of its view is merely to fail to find any obligation based on them (para. 216).
The decision strengthens some principles of international environmental law, whereas oth-
ers remain for another day. Environmental impact assessment can now be considered an inter-
national obligation whenever a proposed industrial activity presents the risk of having a sig-
nificant adverse impact in a transboundary context. The inherent disadvantage that project
opponents face- of proving in advance that a riparian economic development project will
have harmful effects on their shared interests-remains even when the cooperative mechanism
intended to protect those interests has not been respected. The growing number of disputes
involving the environment will provide opportunities for the ICJ to continue its progressive
development of this branch of international law.
CYMIE R. PAYNE
University of CaliforniaBerkeley, School ofLaw
European CourtofHuman Rights-law ofwar crimes during World War II-retroactiveapplicationofthe
Nurembergprinciples-Sovietoccupation ofLatvia-guerillawar and civilian status in World War II
KONONOV V. LATVIA. Application No. 36376/04. At [Link]
European Court of Human Rights (Grand Chamber), May 17, 2010.
On May 17, 2010, the Grand Chamber of the European Court of Human Rights delivered
its judgment in Kononov v. Latvia,' in which it found, by fourteen votes to three, that Latvia
" Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess.,
Supp. No. 10, at 370-436, UN Doc. A/56/10 (2001).
1Kononov v. Latvia, App. No. 36376/04 (Eur. Ct. H.R. May 17,2010) (Grand Chamber). The judgments and
decisions of the European Court of Human Rights, as well as its basic texts, are available at [Link]
