February 6, 2024

The case concerning pulp mills on the River Uruguay (2010): Environmental protection and transboundary harm

This Article has been written by Ms. YERRAM GEETHA, a FINAL year student of KONERU LAKSHMAIAH EDUCATION FOUNDATION, COLLEGE OF LAW, GUNTUR.

SYNOPSIS OF THE CASE:

In 2003, the Uruguayan government granted permission to Spanish company ENCE to build a pulp mill in Fray Bentos, on the river Uruguay. In 2005, Finnish company Botnia also received environmental authorization to build a mill. The river Uruguay forms a border between Argentina and Uruguay and is regulated by the Statute of the Uruguay River, a 1975 bilateral treaty. Argentina filed a complaint with the International Court of Justice (ICJ) in 2006, alleging that Uruguay had violated the Statute by authorizing the construction of two pulp mills without prior consent. Argentina argued that the mills would have an environmental impact on the river and surrounding areas, breaching Uruguay’s obligation to preserve the aquatic environment. Argentina sought compensation, an end to construction, and a guarantee of future compliance with the Statute. Uruguay argued that its only obligations were to inform Argentina and that state-of-the-art waste cleansing equipment would avoid polluting the river.

The Trail smelter dispute, a significant case in international environmental law, began as a local issue between Northport, Washington, and Trail, British Columbia, Canada. Both towns were along the Columbia River, and a smelting plant in Trail was crucial to the economy and lifestyle of the residents. The plant’s power and political influence allowed it to pollute nearby areas, causing harm to local farmers’ land. The waste emitted by the plant did not adhere to borders, leading to two international disputes. The first, in the mid-20th century, involved air pollution, while the second involved slag released into the Columbia River. The dispute highlighted the ongoing battle between big business and grassroots organizations, pitting environmental protection against economic profits. It also challenged legislators to achieve sovereignty among two nations, one claiming its right to pollute for economic development and the other defending its right not to be harmed by a foreign nation. The principles arising from the Trail smelter case are the cornerstones of international environmental law, emphasizing that polluters pay and states have a duty to prevent trans-boundary harm.

 

ISSUES RAISED:

Whether Czechoslovakia has the right to implement the Proposal?

Did the 1977 treaty bind Slovakia and Hungary?

Environmental duties: 

Uruguay was accused by Argentina of violating four distinct substantive obligations on the river’s environmental well-being. 

These included helping to ensure that the river was used as efficiently and sensibly as possible, coordinating actions to prevent changes in the ecological balance, preventing pollution, and protecting the aquatic environment. 

They also included making sure that the management of the soil and woodland did not degrade the quality of the waters.

 

SCIENTIFIC ANALYSIS:

Prior to the Trail case, discussions on the damaging effects of gases emitted from smelting plans on vegetation and forests were ongoing. The claims farmers brought up against the Trail smelter were not far-fetched, as injury from the gases on vegetation caused noticeable changes in plants. However, whether or not this damage was directly correlated with smelter smoke was not clear. Sulfur dioxide and sulfuric acid are the constituents that will be discussed due to their harmful effects on vegetation. One part per million, 0.0001 percent of sulfur dioxide will cause significant damage to plants. Before regulation, smoke emitted from smelters largely contained 1.5 percent sulfur dioxide. Regulatory measures to reduce the amount of sulfur dioxide emitted include scrubbers, flash smelter technologies, sulfur sequestration, and so on. Sulfur dioxide emissions from smelting peaked in the 1970s and have decreased since due to the widespread use of such regulatory measures.

The smelter at Trail was built in a gorge off of the Columbia River, which is very narrow and deep, spanning 1,243 miles. The river often acts as a flume guiding the gases emitted by the smelter, and the wind direction and rate of diffusion created the scenario for smelter smoke emitted in Trail to travel down to the neighbouring Stevens County.

 

Sulfur dioxide creates injury to plants through short-term, long-term, subtle, and visible changes, including cell damage, chemical composition changes, decreasing rates of photosynthesis, and reduced yield and growth. The effects of sulfur dioxide depend on the temperature, humidity, soil conditions, time of day, and other influencing pollutants.

During the IJC hearings, scientists from both countries acknowledged the discoloration and lesions on leaves across the area of smoke damage. However, scientists disagreed on the cause of this damage, with some arguing that it was not necessarily connected to the smelter. Canadian experts claimed that the smoke from the previously operating Breen Copper Smelter in Northport could be the cause of the damage.

Upon analyzing research papers and evidence produced in the late 20th century, the atmospheric sulfur dioxide emitted from the smelter clearly was the cause of injury to vegetation. The IJC hearings provided conflicted theories of the origin of damage on the plants, but the final proceedings in 1938-1941 were confident in assuming injury from smelter smoke.

The Special Agreement of the International Joint Commission:

The International Joint Commission (IJC) was established in 1909 to prevent boundary disputes between Canada and the United States, particularly concerning waters. In 1926, Canada faced its first international case, a smelter dispute. In 1935, the IJC held a convention and recommended compensation for damages. Consolidated Mining argued that measures to reclaim sulfuric acid would eliminate future damage risk. The IJC established a “Tribunal” to make decisions on damage, emission reduction, and compensation. Participants delivered partial decisions in 1938 and final decisions in 1941.

The International Court of Justice (ICJ) did not uphold Argentina’s claims that the Botnia mill discharges exceeded the limits set by the Statute. The ICJ applied the Statute, CARU digest, and domestic regulations to assess environmental standards. The ICJ noted that environmental impact assessments are now considered a requirement under general international law, but did not include a legal obligation to consult affected populations.

 

DECISION ANALYSIS:

The Trail Smelter Arbitration case was a landmark decision in international law, marking the first time the World Court or any other international justice system had made such a decision regarding a remote and localized instance. The Tribunal sought to find a balanced solution, allowing the smelter to continue operations while farmers were no longer harmed by the smoke. The decision held that the Dominion of Canada is responsible in international law for the actions of the smelter. The pollution must be of serious consequence, indicating that the court must identify whether the pollution is inhibiting an individual or group’s health. The Tribunal focused on the extent of the economic loss due to the noxious smoke to determine whether it was of “serious consequence.” It established that the injury to cleared and uncleared lands was serious enough to warrant compensation, but not the damage on livestock and property in the town of Northport.

The decision was not meant to impose legally binding obligations on both parties, but rather to reflect an aspiration or principle of the international justice system. Two principles are often discussed in this case: the obligation of a state to prevent transboundary harm and the polluter pays principle. The Tribunal used previous United States Supreme Court decisions to decide the route to take in deciding this case, establishing that relief must be provided for the injured person and accountability to the wrongdoer. In the Trail Smelter arbitration, the remedy came in two forms: direct monetary compensation to the farmers and changing the way operations took place at the smelter to reduce the amount of harmful chemicals emitted during processing. This regime was incredibly costly to the smelter, amounting to around $20 million. The Tribunal’s goal was to diminish the injury the pollution was causing through regulatory methods, which could be argued as an appropriate and fair decision.

 

CONCLUSION:

Argentina and Uruguay have settled a sustainable development dispute, balancing environmental and human health with economic development. However, tensions persist due to the limited scope of the Court’s review of air pollution, Odors, and noise. The decision strengthens some principles of international environmental law, but not others. Environmental impact assessment is now considered an international obligation, but public consultation is not. Advocates and IFC Safeguard Policies have improved environmental controls and monitoring operational impacts. Countries planning projects affecting shared natural resources will be held to high standards of due diligence.

Farmers in Northport, New York, were involved in a grassroots effort to remove smoke pollution. The case, involving Consolidated Mining and Smelting Limited, aimed to compensate farmers for their rights violation. The dispute was resolved by international law institutions, highlighting transboundary harm and the nation’s responsibility to prevent it. The case established that the polluter was held accountable and payment for remedy would be necessary.

 

REFERENCES:

 

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