ICJ Decision Helps to End Environmental Dispute Between Argentina and Uruguay

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The BBC is reporting that Argentina and Uruguay have settled a seven year environmental dispute concerning a pulp mill. The dispute was submitted to the ICJ which rendered its judgment in April this year.   According to the BBC:

 Argentina and Uruguay both say they are happy after a deal was reached to end their long-running row over a pulp mill on the banks of their shared river.

The breakthrough came when their foreign ministers signed an accord setting out how the plant and the river would be environmentally monitored.

Argentina argued the mill polluted the river, while Uruguay said strict environmental codes were followed.

The dispute saw frequent protests on the Argentine side and strained ties.

“I’m very happy with the accord,” Uruguayan President Jose Mujica said, while Argentine Foreign Minister Hector Timerman used similar language, tweeting that “both governments are very satisfied”.

Mr Timerman and his Uruguayan counterpart, Luis Almagro, signed an accord late on Sunday, finessing an earlier agreement reached by the two countries in July.

The accord sets up a scientific committee composed of experts from both nations which will monitor the pollution levels in the River Uruguay and within the mill.

The process by which this dispute has been settled illustrates the role that the ICJ and international tribunals can play in dispute settlement. Those who view the international legal system by comparison with domestic legal systems will comment on the general absence of effective enforcement mechanisms in international law. However, this analogy is misleading in many respects. In the first place there are significant aspects of domestic law (particularly domestic constitutional and public law) where mechanisms of enforcing judicial decisions are similarly lacking. Secondly, a lack of enforcement mechanisms by no means indicates a failure of  judicial or arbitral dispute settlement . That view ignores the ways in which submission of disputes to adjudicative mechanisms can work to either get the parties to the negotiating table or can play a significant role within the negotiating process.  In a piece I wrote back in 1996, I commented that:

Submission of a dispute to the Court gives the parties an opportunity to settle a dispute they may otherwise be unable to settle. A negotiated settlement of a dispute may be precluded by various factors. Negotiation is only usually successful when there is some compromise on both sides. It may therefore be difficult to achieve a negotiated settlement of a problem that can only be solved by one side or the other getting the disputed territory.  Furthermore previous intransigence by the parties may prevent them from withdrawing from already stated and widely publicised positions. Recourse to the Court allows for an authoritative and more palatable vindication of the position of one side over the other.

Settlement of disputes by negotiation and agreement may also be prevented by domestic considerations. A State may be unwilling to reach agreement on a particular matter because it is anxious about how such an agreement may be perceived domestically. Submission of the dispute to the Court provides a State with an instrument that can be played before the domestic constituency in support of an unfavourable outcome to the dispute. …

However, the role of the Court is not confined to settling disputes that cannot be solved by negotiation. The Court can often play a role within the negotiation process either to support negotiations or to inspire the parties to negotiate. …  [T]he North Sea Continental Shelf Cases … is an example of the role the court can play in supporting negotiations between States where those negotiations have stalled owing to a lack of agreement on fundamental legal issues. As the Court remarked in a different case, “[i]n the fresh negotiations which are to take place on the basis of the present Judgment, the Parties will have the benefit of the above appraisal of their respective rights, and of certain guidelines defining their scope.” [Fisheries Jurisdiction Fisheries Jurisdiction Case (United Kingdom v. Iceland) (Merits), 1974 ICJ Reports 3 at p. 33, para. 78

The Court may play an important role in getting the parties to a dispute to the negotiating table and in encouraging a negotiated settlement of the dispute between the parties. The finding by the Court that it has jurisdiction over a dispute sometimes has this effect.

(Akande, The Role of the International Court of Justice in the Maintenance of International Peace”, (1996) 6 African J. of Int. & Comp. Law 592, 610-611)

It appears that what has happened in this case is that the Court has played a significant role in the negotiating process. In its decision the Court found that Uruguay had not breached its substantive obligations under the relevant treaty (the 1975 Statute of the River Uruguay) but that it had breached procedural obligations to notify and to negotiate. It seems that this negotiation has now taken place.

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Mihai Martoiu Ticu says

November 21, 2010

James Brown Scott wrote in a letter to the Dutch Minister of Foreign Affairs, dated January 12, 1914, about the establishment of a court of arbitral justice: "[T]he historian of the future will look back with wonder and amazement to the time when nations did not settle their justiciable disputes by judicial process, and did not organize permanent courts for their trial and disposition."

And that is the direction we follow. The only reason that we don't have a very developed international system of adjudication, that there is no compulsory jurisdiction, is that powerful states do their best to oppose it. But even they are becoming moved in that direction. It's just a matter of time.