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

FALL 2009

the international court of JuStice’S

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