Is the International Court of Justice the Right Forum for Transboundary Water Pollution Disputes?

Author:Kate Halloran
Position:J.D. candidate, May 2011, at American University Washington College of Law
Clean water is essential to human development and sus-
tainability, yet fragme nted management of transbound-
ary waters puts this valuable resource at risk.1 A recent
controversy between the governme nts of Argentina a nd Uru-
guay over the construction of two pulp mills on the River Uru-
guay2 illustrates the tension in sustainable development between
promoting economic prosperity and protecting the environment.
On May 4, 2006, the Argentine government instituted pro-
ceedings with the International Court of Justice (“ICJ”) against
the government of Uruguay for allegedly violating a 1975 treaty
that imposes obligations on the two nations to curb pollution in
the riv er that forms their border.3 Argentina con tends the dis -
charge of chemicals from the pulp mills will adversely affect the
river and communities settled along the river’s banks,4 an asser-
tion which U ruguay deni es.5 Argenti ne citizens protested by
blockading a bridge over the river, effectively disrupting tourist
and commercial activity in Uruguay,6 which Uruguay insists has
resulted in serious economic damage.7
The I CJ is cur rently deliberatin g Pulp Mi lls on t he River
Uruguay (Argentina v. Uruguay),8 but its actions thus far invite
doubts about the ICJ’s efficacy in adjudicating transboundary
water p ollution disputes. One concern is the reluctance of the
ICJ to utilize provisional measures, a form of injunctive relief.
The I CJ denied requests from Argentina and Uruguay to sus-
pend const ruction of the pulp mills and end blockading of the
bridge, respectively.9 Between 1946 and 1994, the ICJ employed
provisional mea sures in approximately half of the case s where
one or more parties requested such intervention.10 Pulp Mills on
the Rive r Uruguay is the first case since 2003 to even request
provisional measures.11 The record indicates that the ICJ resists
wielding this powerful tool unless the requesting party can prove
imminent and irreparable harm to their interests, opting instead
to appeal to the good faith of the parties not to cause injury until
the case has been formally decided.12 Thus, even though the ICJ
could have issued provisional measures wit hin six months of
Argentina filing its complaint, both Argentina’s environmental
interest and Uruguay ’s economic interest in the River Uruguay
have gone unchecked for over three years.
Further, even if the ICJ exhibited wi llingness to issue pro-
visional measu res, its c apacity to enforce such measures is
uncertain. While Article 94 of the United Nations Charter allows
recourse to the Security Counc il when a party ignores a final
judgment of the ICJ, no such similar proceedings exist for provi-
sional measures.13 A party could decline to abide by provisional
measures asserted against it without penalty.
The extensive transboundary water dispute history between
the United States and Canada provides an example of an alterna-
tive to the ICJ. The Boundary Waters Treaty of 190914 est ab-
lished the Internationa l Joint Commission (“Commis sion”) to
prevent disputes regar ding the use of boundary waters. 15 The
Commission is independent in nature and comprised of officials
and permanent employees from both countries.16 Its responsibili-
ties include: “(1) quasi-judicial determinations; (2) investigative
and advisory assignments; and (3) arbitrations.”17 The Commis-
sion first encountered transboundary water pollution concerns in
1912, when it was asked to recommend a plan for preventing
and remedying pollution in shared U.S.-Canadian waters.18 The
Commission also played a central role in a contentious disput e
between the United Stat es and Canada over transbounda ry air
pollution t hat spawned the famous Trail S melter arbitration in
1941.19 More recently, in 1990, it adopted a policy of zero dis-
charge and virtual elimination of toxic substances.20
The longevity and effectiveness of the Commission are
the result of a firm com mitment to pollution abatement and an
inclusive approach to addressing transboundary water pollution
disputes, which encourages public participation and consensus-
driven initiatives.2 1 A transb oundary wa ter pollu tion disp ute
cannot be settled without the participation of officials from both
countries. 22 Moreover, projects that may affe ct U.S.-C anada
boundary wa ter require approval of the Com mission, which is
tasked with balancing divergent interests fairly.23
The Commission, of course, is not flawless. However, if the
1975 River Uruguay treaty included a similar entity to address
transboundary water pollu tion disputes, the Pulp Mills on the
River Uruguay case may never have progressed to the ICJ. The
Commission benefits f rom a strong framework , dedication of
the governments directly affected by transboundary water pol-
lution disputes, and a system of regulation that is flexible yet
efficient.24 Where the I CJ attempts en forcement of practically
unenforceabl e internatio nal law, the C ommission en courages
transpare ncy and complian ce. Rega rdless o f the outcome of
Pulp Mills on the River Ur uguay, the international community
must deve lop other methods of resolving transboundary water
pollutio n di sputes before economic devel opment and water
quality suffer irrevocably.
iS the international court of JuStice the
right forum for tranSbounDary water
pollution DiSputeS?
by Kate Halloran*
* Kate Halloran is a J.D. ca ndidate, May 2011, at Amer ican University
Washington College of Law.
Endnotes: Is the International Court of Justice the Right Forum for
Transboundary Water Pollution Disputes? continued on page 85