The International Court of Justice handed down a troubling ruling this week in the case of Pulp Mills on the River Uruguay [2], a case in which Argentina contested Uruguay’s decision to allow the construction of highly polluting paper mills on the boundary river between the two countries without following proper consultative procedures.  In the ruling, the ICJ recognized that Uruguay had breached a treaty with Argentina and improperly authorized the construction of the mills, but found it unnecessary to order remediation, compensation, or mitigation measures for the pollution of the river.

The Centro de Derechos Humanos y Ambiente (CEDHA – Center for Human Rights and the Environment) has spearheaded Argentine resistance to the paper mills, whose effluents have further contaminated an already-beleaguered river and and whose emissions of air pollutants have impacted the recreational and tourism activities on which local Argentine communities rely.  CEDHA has covered the ICJ’s ruling in English [3] and Spanish [4] extensively, pointing out the disturbing role of the International Finance Corporation in financing the projects despite prior knowledge of numerous violations of environmental regulations and highlighting the dissenting opinion of Judge Yusuf Al-Khasawneh, which argued that the Court lacked capacity to evaluate highly technical environmental evidence and should have sought expert advice before rejecting Argentina’s claims.

A sign posted in a shop in Gualeguaychú, Entre Ríos, Argentina, that reads NO A LAS PAPELERAS - SI A LA VIDA -

A sign posted in a shop in Gualeguaychú, Entre Ríos, Argentina, that reads NO A LAS PAPELERAS - SI A LA VIDA - "No to the paper mills, yes to life". Photo © Pablo D. Flores [5], reused here under a CreativeCommons Attribute ShareAlike 2.5 license.

More fundamentally, the case seems to point to a bias against environmental justice at the ICJ – manifested here in the unwillingness of the ICJ to attach real consequences to the conduct of activities in one country that have environmental impacts in the territory of another. The ICJ found that Uruguay had broken a treaty in which it promised to go through various consultative procedures with Argentina in order to promote the rational use of the River Uruguay and prevent ecological harms.  Then, however, it engaged in a series of legal maneuvers to avoid the logical consequences of its finding.  By artificially narrowing the scope of its jurisdiction, rejecting common-sense procedural suggestions, denying the evolution of international law with respect to environmental impact assessments, and consistently construing evidentiary submissions against Argentina, the Court completely defanged its own ruling.  It in effect set up a regime that devalues procedural safeguards, overlooks the need to act now to prevent future harms, and ignores decades of development in the field of international environmental law.

To be sure, the Court includes some nice language on the need for “vigilance and protection” to protect against irreversible environmental harms and suggests that it has consistently given transboundary environmental concerns their due weight in prior cases.  But the only precedent it cites for this promising proposition – Gabčíkovo-Nagymaros Project [6] (Hung. v. Slovk.) 1997 I.C.J. 78 (Sept. 25) – is even more disheartening.  In that case, the Court found that Hungary was not entitled to terminate a treaty based on grave environmental concerns, even though Czechoslovakia had begun major works to divert the Danube River in violation of that treaty.  In both cases the Court betrays an ignorance about environmental damage that is either willful or naïve: the illusion that substantial environmental harms are avoidable after a country has already poured capital into a major project, and that procedure can be violated without compromising substance.  As both Hungary and Argentina can now sadly attest, the ICJ offers scant hope to those who would avert major environmental harms before they start.