Friday, April 23, 2010

Update: perspective on the Pulp Mills on the River Uruguay ICJ case


Collegue BO has forwarded the first of a no doubt long list of case comments on the Uruguay River Pulp Mills case: here is ASIL's comment by Cymie Payne.

ASIL's comment claims that «the Court recognized environmental impact assessment as a practice that has become an obligation of general international law in these situations.»

If this is the case, does that mean that aspects of text of the UN 1997 Convention are already obsolete even before the Convention enters into force?: article 12 mentions environmental impact assesments but appears not to impose an specific positive obligation to perform such an assessment.


  1. I am of the opinion that the decision does not have the effect of rendering Art 12 obsolete but instead, strengthening the position of the requirement of Art 12. Art 12 provides for the timely notification of implementation of planned measures which may have significant adverse effect on other watercourse states, accompanied by available technical data and information, including results of any EIA for other states to evaluate the possible effects of the planned measure.

    Hence, the ASIL's comment by Cymie Payne in the conclusion of the commentary that this decision has "strengthened some principles of international environmental law where EIA can now be considered an international obligation where there is a risk that a proposed industrial activity may have a significant adverse impact in a transboundary context."(quoted the author)

    However, I found the decision unsatisfactory in the sense that the court is still reluctant to deliberate and adjudicate on the precautionary principle despite having perused all the vast scientific evidence, to find Argentina failed to substantiate its claim that the project has potential harmful effects on the biota, water quality etc. The legal application of the precautionary principle is still vague despite its increasingly recognised status as a customary international law. It left the question hanging as to, how much is enough, with regards to the evidence needed to be produced by Argentina, for the court to decide that the principle of precaution is to be applied in the face of the possible 'irreversible harm' on the environment, despite the lack of scientific evidence, even though the court agreed, by quoting the Gabčíkovo-Nagymaros case that "in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage"?

    Having said this, I do agreed that this decision is noteworthy for fleshing out some principles of international environmental law despite the need to adhere to strict rules of treaty interpretation in interpreting the River Uruguay Statute 1975. It also enhance the position of the substantive and procedural rules of the 1997 UN Water Convention, especially on the need for equitable and reasonable utilisation, and also the obligation to cooperate, notify, etc.

  2. Good points, and two comments:

    - I have the impression that my question remains valid. If international environmental law obliges states to perform EIA, why does the 1997 UN Convention does not state so explicitly? It could reduce compliance/implementation challenges due to the linguistic vagueness of substantive obligations provided by the Convention;

    - You discuss precaution but reference to a quote on prevention to back your argument. Surely these are different principles, or did I miss something?

  3. Well, amendment might be made to the UN Convention for making EIA requirements explicit, but the decision in this case has make EIA necessary in any planned water project, I am not sure if the amendment is really necessary. But I am really not sure about this.

    As to the second comment, you are right, the principles are different, but the point I was referring to was that the court does recognised the irreversible character of damage to the environment and of the limitations inherent in the mechanism of reparation, but still, does not seek to apply the precautionary principle in addressing this issue.