International Court of Justice’s Impact on International Environmental Law: Focusing on the Pulp Mills Case

Abstract

This article argues that the recent case Pulp Mills on the River Uruguay (Argentina v Uruguay) (Pulp Mills case) at the International Court of Justice (ICJ) between Argentina and Uruguay refreshes and incorporates new ideas that are important for the development of international environmental law.1 Past ICJ decisions have been considered an important source of international environmental law and by studying new environmental cases at the ICJ we can expect the further development of international environmental law. The judgment of the Pulp Mills case declared the status of, and tried to clarify, the content of environmental impact assessment and sustainable development as international law norms. Some new challenges involving environmental soft law, the application of sustainable development in court, and the burden of proof in the transboundary context also emerged in the court’s decision. In 2002 and 2005, Uruguay twice approved the construction of the Orion and the CMB pulp mills in the Uruguay territory on the Uruguay River (the boundary river between Argentina and Uruguay) and granted the environmental permits necessary for construction. This action by Uruguay provoked strong reaction from the Argentine government as well as from inhabitants living across the river. Having concerns about the anticipated environmental damage, the Argentinean residents near the pulp mills protested and blocked the General San Martín Bridge over the river for months, and the Argentine government expressed their serious concerns to the Uruguayan government regarding the environmental implications of the pulp mills. In response, the two countries established a High Level Technical Group, in the hope of reaching a negotiated agreement based on the 1975 bilateral Statute of the Uruguay River (1975 Statute), which was signed in 1975.2 However, Uruguay’s approval of the construction of the pulp mills and a port dock in Fray Bentos aborted the negotiation. In 2006, Argentina brought a complaint before the ICJ seeking international judicial relief.