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
• Pages: 39-39

SUSTAINABLE DEVELOPMENT LAW & POLICY

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

39