On Tuesday afternoon April 20 the International Court of Justice (ICJ) announced its decision in the Case Concerning Pulp Mills on the River Uruguay brought by Argentina against Uruguay. Coincidentally, just minutes before the decision was announced, I was traveling by train through the Hague, where the ICJ is located, on my way from Amsterdam to Brussels in an effort to escape the continued closure of European airspace due to ash from the Icelandic volcano. After my rescheduled Tuesday return flight from Amsterdam to D.C. had been canceled, the earliest return flight to the U.S. I could get was from Brussels to Chicago on Thursday. Yet when I arrived in Brussels on Tuesday afternoon I learned that the Wednesday Brussels to Chicago flight already had been canceled and that it was uncertain if the Thursday flight would go. I discovered, however, that flights south from Brussels were being allowed to take off, so I purchased a ticket to fly from Brussels to Lisbon on the first flight of the day on Wednesday because Lisbon is far enough south to be unaffected by the ash problem.
After boarding the flight to Lisbon at the Brussels airport at 6AM on Wednesday morning, I was informed that due to a mechanical problem we had to switch planes. This delay meant I only had a few minutes to spare at the Lisbon airport before scoring one of the last seats on a Lisbon to Newark flight. But I made the plane, was back in the U.S. on Wednesday afternoon, and flew from Newark to D.C. on Wednesday night. This allowed me to teach my Constitutional Law class in person on Thursday as well as makeup Constitutional Law and Global Environmental Law classes on Friday.
The ICJ judgement, a copy of which is available at http://www.icj-cij.org/docket/files/135/15877.pdf, represents an important development in the history of international environmental law. Yet it also illustrates the limitations of the ICJ (and international law) as means for resolving environmental disputes. By a vote of 13-1 the ICJ ruled that Uruguay had breached its procedural obligation to inform, notify and negotiate with Argentina under a bilateral treaty between the two countries (the 1975 Statute of the River Uruguay) by failing to provide the Administrative Commission of the River Uruguay, a body created by the treaty, with an environmental impact assessment (EIA) before authorizing two large paper mills to be built by Spanish and Finnish companies (ENCE and Botnia) on the River Uruguay. But by a vote of 11-3 the ICJ also decided that Uruguay had not breached its substantive obligations to prevent harm to the river. In May 2006 Argentina instituted proceedings in the ICJ against Uruguay, seeking an order to stop completion of the paper mills. In both July 2006 and January 2007, the ICJ refused to issue such an order and construction of the Botnia mill was completed, while the ENCE project as abandoned. Public hearings in the case were held between September 14 and October 2, 2009 with Argentina asking for damages for pollution of the river by the Botnia mill.
The ICJ found that “the 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. Moreover, due diligence, and the duty of vigilance and prevention which it implies, would not be considered to have been exercised, if a party planning works liable to affect the régime of the river or the quality of its waters did not undertake an environmental impact assessment on the potential effects of such works.” The ICJ did not specify what the scope and content of an EIA must include. Instead it observed that “it is for each State to determine in its domestic legislation or in the authorization process for the project, the specific content of the environmental impact assessment required in each case, having regard to the nature and magnitude of the proposed development and its likely adverse impact on the environment as well as to the need to exercise due diligence in conducting such an assessment. The Court also considers that an environmental impact assessment must be conducted prior to the implementation of a project. Moreover, once operations have started and, where necessary, throughout the life of the project, continuous monitoring of its effects on the environment shall be undertaken.”
On the question of substantive violations, the ICJ determined that Argentina had not clearly proved that the paper mill was causing harm to the river. In an interesting dissent, Judges Al Khasawneh and Simma argued that the majority had employed a flawed procedure for fact-finding by allowing experts to serve as counsel rather than having the ICJ appoint its own independent panel of experts. A copy of this dissent is available at http://www.icj-cij.org/docket/files/135/15879.pdf. While both Uruguay and Argentina expressed satisfaction with the parts of the decision that favored them, there was no indication that Argentine protesters would stop their blockade of a key bridge between the two countries.
On Thursday the International Whaling Commission (ICJ) unveiled a compromise proposal (http://www.iwcoffice.org/_documents/commission/IWC62docs/62-7.pdf) that would allow limited, temporary resumption of commercial whaling in return for its gradual reduction over a ten-year period. Greenpeace has denounced the proposal, while others argue that it would be a substantial improvement over the status quo in which Japan, Norway and Iceland operate largely outside the system by claiming that they are harvesting whales solely for research purposes. The question whether a compromise is better than a total ban is similar to the issues being considered by the U.S. Food and Drug Administration (FDA) as it tries to formulate a policy on smokeless tobacco products that may deliver nicotine more safely to smokers, but that perpetuate their addiction.
Thursday’s 40th anniversary celebration of Earth Day was a more somber affair than in years past. Plans for an Earth Day press conference to announce a bipartisan Senate cap-and-trade bill to control greenhouse gas (GHG) emissions, cosponsored by Senators John Kerry (D-Mass) and Lindsay Graham (R-S.C.) fell apart. After first announcing that the bill’s unveiling would be delayed for a few days, it now has become clear that Senator Graham is withdrawing his support, leaving the legislation without any Republican co-sponsors. Senator Graham, who has been under intense pressure from fellow Republicans not to endorse GHG emissions control, withdrew as a co-sponsor ostensibly because he is upset that the Senate first will consider an immigration bill and only then the climate change legislation. The Kerry-Graham bill reportedly would offer many carrots to win industry support, including massive subsidies to the nuclear power industry, preemption of state GHG emission control programs, and removal of authority for EPA to implement GHG controls.