The International Court of Justice's Treatment of 'Sustainable Development' and Implications for Argentina v. Uruguay

Author:Lauren Trevisan
Position:J.D. candidate, May 2012, at American University Washington College of Law
Pages:40-40
 
CONTENT
FALL 2009
the international court of JuSticeS
treatment of “SuStainable Development
anD implicationS for argentina v. uruguay
by Lauren Trevisan*
The International Court of Justice (“ICJ”) gave the concept
of “sustainable development” its first thorough airing in
1997 in its decision concerning the Gabciko vo-Nagy-
maros Project.1 In this decision and all others to date, however,
the IC J has stoppe d short of treating sust ainable development
as a core adjudicatory norm .2 The pending Pulp Mills on the
River Uruguay (Argentina v. Uruguay)3 case provides the court
an opportunity to refine and further develop its treatment of the
concept of sustainable development.
Though the ICJ included the concept of sustainable devel-
opment in an Advisory Opinion in 1996,4 the Gabcikovo-Nagy-
maros case was the ICJ’s first use of sustainable development in
its jurisprudence. At dispute in the case was the development of
a system of locks on the Danube River pursuant to a 1977 treaty
between Hungary and C zechoslovakia.5 The pur poses of the
project, which began in 1978,6 were to produce hydroelectricity,
improve navigation, and protect against flooding.7 In 1989 Hun-
gary decided to abandon the project, largely due to intense criti-
cism from Hungarian scientists and environmentalists centering
on threats to groundwater and wetlands.8 In response, Slovakia
attempted to continue the project by unilaterally diverting the
river to serve a power station on its territory.9
The parties took their dispute to the ICJ and requested that
the co urt consider their rights and obligations under the 1977
treaty.10 In making its determination, the ICJ looked beyond the
parties’ treaty relations hip and r eferred to other relevant con-
ventions to which the States were a party, as well as to rule s
of customary in ternational law.11 It also co nsidered sustainable
development as a concept central to the resolution of the dispute:
Throughout the ages, mankind has, for ec onomic and
other reasons, constan tly interfered with nature. In the
past, this was often done without consideration of the
effects upon the e nvironment. Owing to new scien-
tific in sights and to a growing awareness of the risks
for mankin d . . . new norms and standards have been
developed, set forth in a great numb er of instruments
during the last two deca des. Such new norms have to
be taken into consideration, and such new standards
given proper weight, not only when states contemplate
new activities but also when continuing w ith activi-
ties begun in the past. This need to reconcile economic
developm ent w ith p rotection of the environment is
aptly expressed in the concept of sustainable develop-
ment. For the purposes of the present case, this means
that the Parties together should look afresh at the effects
on the environment of the operation of the [Slovakian]
power plant.12
While in this case the ICJ recommended use of the concept
of susta inable development in sovereign decision-making,13 it
“stopped short of declaring or referring to sustainable develop-
ment as a norm of customary international law.”14
Currently pending is another case that will call on the panel
to consider issues of sustainable development, specifically giving
the court the opportunity to resolve the questions of international
environme ntal law and the legal implications of sustainable
development that it left open in the Gabcikovo-Nagymaros deci-
sion.15 On October 2, 2009 the Court heard final oral arguments
in Pulp Mills on the River Urugua y.16 In 2003 and 2005 Uru-
guay authorized two pulp mills to be built on its portion of the
River Uruguay, which constitutes the b order between Uruguay
and Argentina.17 Argentina alleged that the mills threatened the
health of the river and local residents and were in violation of
the Statute of the River Uruguay, a 1975 agreement between the
two nations to govern the river’s management.
Argentina claimed that the Statute of the River Uru guay
incorporated international envi ronmental standards, and that its
right to protect the environment of the river is derived from both
the letter of the statute and the “principles and rules of interna-
tional law.”18 Uruguay contends that its duty is not to prevent all
pollution, but rather to follow appropriate rules and measures to
prevent it in the context of development. 19 Uruguay claims it is
subject to an “obligation of conduct, not an obligation of result”
which is “consistent with the principles of general international
law.”20
Both parties in this case frame their rights and obligations to
protect the environment of the River Uruguay as complying with
“general international la w.” This c ase, therefore, is an oppor-
tunity for the ICJ to delineate what it considers international
environmental standards to be.21 In its Gabcikovo-Nagymaros
decision, the ICJ “missed the opportunity to give further defini-
tion to the concept of sustainable development.”22 Over ten years
later, in a world where sustainable development is arguably an
even greater concern, the cour t should take thi s opportunity to
set a basis for the enforceability of international environmental
norms,23 including sustainable development.
*Lauren Trevisan is a J.D. candidate, May 2012, at America n Uni versity
Washington College of Law
40
Endnotes: The International Court of Justice’s . . . Implications
for Argentina v. Uruguay continued on page 85