Paper Battle on the River Uruguay: The International Dispute Surrounding the Construction of Pulp Mills

Georgetown International Environmental Law Review, Fall 2007 by del-Cerro, Maria Alejandra

ABSTRACT

This comment explores the legality of the Uruguayan government's decision to approve the construction of two pulp mill plants on the River Uruguay and examines the related litigation currently pending before the International Court of Justice (ICJ). A review of the international watercourse law regime assists in deciphering the parties' substantive and procedural obligations under the 1975 Statute of the River Uruguay. The comment argues that Uruguay has fulfilled these obligations and Argentina has not. The piece recommends that the ICJ resolve the dispute in favor of Uruguay and adopt a more precise standard for determining when a state has complied with the no-harm principle. A more precise standard will allow riparian nations to capitalize on their right to use international watercourses without facing prolonged legal disputes with neighboring nations

I. INTRODUCTION

Organized groups of Argentine citizens have blockaded various routes leading to international bridges over the River Uruguay,1 stemming the flow of commercial trade and tourism to Uruguay.2 The blockades form part of a nationwide protest against Uruguay3 and its choice to approve the construction of two cellulose processing plants4 in die town of Fray Bentos on die River Uruguay. Argentina fears that the plants wid podute tiie Uruguay River,5 a boundary and natural resource shared by both countries.6

Despite Uruguay's repeated protests,7 the Argentine government has not stopped its citizens from participating in the illegal blockades.8 Instead Argentine officials initiated proceedings against Uruguay in die ICJ,9 claiming that Uruguay breached its obligations under the 1975 Statute of die River Uruguay.10 Altiiough the ICJ has not yet ruled on die merits of the case,11 the Argentine blockades continue to exert undue pressure on Uruguay to halt construction of the two plants.12

This comment explores the legality of the Uruguayan pulp mill projects under international watercourse law and evaluates whether Uruguay has met its obligation to refrain from using the Uruguay River in a manner that causes harm to another state. Part II presents a summary of the current international watercourse law regime, Mowed by a brief discussion of relevant ICJ case law examining trans-boundary podution of an international waterway.13 Part U.B sets forth an overview of the 1975 Statute of the River Uruguay (1975 Statute) and its parties' obdgations.14 Further, Part U.C maps out a brief account of Uruguay's actions prior to approving the pulp mtils and outiines the history of the pending ICJ titigation.15

Part m argues that Uruguay has met its obdgations to prevent pollution of the Uruguay River under both the existing international watercourse law regime and under the 1975 Statute.16 Parts ITI.B and m.C argue that Argentina has not met its obdgations under the 1975 Statute, distinguishing this case from a previous ICJ case in which the Court directed the parties to find an agreeable solution within the text of the Statute.17

Finally, Part IV recommends that the ICJ rule in favor of Uruguay in die pending titigation based on the appdcable law and the lack of evidence Argentina has presented tiius far to prove the pulp mtils' potential to pollute.18 Additionatiy, Part IV suggests tiiat the ICJ estabdsh more precise guidednes for determining whether a state has complied with die no-harm principle, with reference to the internationally accepted principles of environmental impact assessment and the appdcation of best available technology.

II. BACKGROUND

The international watercourse regime provides a number of principles to assist riparian states attempting to negotiate use of an international waterway.20 The ICJ has appded these principles in a number of cases interpreting bilateral treaties between riparian states who have failed to reach an agreeable interpretation themselves.21 These states must interpret their rights and obdgations regarding use of their international waterway with reference to their bdateral treaties and the fundamental principles of the regime.22

A. THE INTERNATIONAL WATERCOURSE REGIME

International law relating to the use of shared natural resources provides states witii a number of rules and principles that require environmental protection of international rivers and bordering riparian states.23 Traditionally, implementation of these principles largely depended on the voluntary concessions of states through treaties and other private legal measures.24 Bilateral treaties governing the use of international waterways may contain dispute settlement clauses invoking the jurisdiction of the ICJ to settle prolonged disagreements between the signing countries.25 The ICJ has decided a number of cases under these circumstances,26 and has generady ordered states in dispute over the use of a shared natural resource to rely upon principles of international watercourse law to interpret their legal obligations and rights under existing bilateral treaties.27

1. Applicable Principles of International Watercourse Law