The Pulp Mills on the River Uruguay (Argentina v Uruguay) decided by International Court of Justice

In the year 2006 Argentina brought proceedings against Uruguay in the International Court of Justice (“ICJ”), alleging the breach of obligation under bilateral treaty, Statue of the River Uruguay, 1975 (“Statute”) between the two states. Argentina claimed that by allowing the construction of pulp mill on River Uruguay as breach of the treaty. Argentina raised the following points for as breaches: i) the obligation to take all necessary measure of the optimum and rational utilisation of the river; ii) the obligation to provide prior notice of processes and activities associated with the mills; iii) the obligation to preserve the aquatic environment and its fisheries and biodiversity, iv) the obligation to prevent pollution, v) the obligation to prepare a full environmental impact study; and vi) the obligation to co-operate in the preservation of the environment and prevention of pollution.

The ICJ on the procedural claim observed that the Uruguay has breached the obligation to notify and consult with Argentina prior to the authorisation and constructions of the mills, arising under the 1975 Statute[2] but held that the Argentina could not prove that substantive breach of any obligation by Uruguay under the 1975 Statute.[3] Hence ICJ held that a declaration of the existence of the breach by Uruguay was more than enough remedy in this case as there has been no proof of substantive breach. By way of this judgment ICJ has also contributed towards the customary international environmental law as the court observed that the preparation of a trans boundary Environmental Impact Assessment (EIA) is required as a part of the custom where a proposed activity poses a risk of significant environmental harm[4], even though the Court found that international law had little to say about the nature, scope and content of the EIA.[5] The Court observed that “[T]he obligation to protect and preserve, under Article 41 (a) of the Statute, has to be interpreted in accordance with a practice, which in recent years 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”.[6]