Stephen L. Kass
In previous columns I have discussed the difficulty of enforcing under domestic law the emerging international standards for environmental conduct by corporations ("International Standards for Corporate Conduct," April 30, 2012) and of using an international forum under the North American Free Trade Agreement to assure enforcement of the parties' domestic environmental laws ("Environmental Enforcement and Protection Under NAFTA," Aug. 25, 2008). This column considers the effectiveness of two major international bodies, the International Court of Justice (ICJ) and the Inter-American Commission on Human Rights, in enforcing environmental obligations arising under treaties and customary international law against nations that violate those obligations.
As discussed below, despite its progressive language on the implied incorporation of international environmental standards into treaties, the ICJ has shown reluctance to decide the merits of environmental disputes, or to enforce the environmental judgments it does render, preferring instead to require the parties to negotiate in good faith to find environmentally responsible solutions to their disputes. The Inter-American Commission has been willing to consider certain large-scale environmental abuses within the scope of its human rights jurisdiction, but it too has failed to fashion enforceable remedies for such abuses. Whether court-ordered negotiations or strongly worded "recommendations" are an adequate remedy for violations of international environmental obligations is the subject of this column and an increasingly important question as the nations of the world confront the challenges of climate change.
The Danube River Diversion
The dispute between Hungary and Slovakia illustrates the difficulty the ICJ has had in enforcing international environmental obligations. In September 1977, Hungary and Czechoslovakia entered into a treaty to construct and operate the Gabcikovo-Nagymaros Barrage System on the Danube River. (After the division of Czechoslovakia in 1993, Slovakia succeeded to Czechoslovakia's rights and obligations.) The treaty contemplated a cross-border series of dams and locks to produce electricity, improve navigation, protect the surrounding environment, regulate ice removal and protect adjacent areas from flooding. The treaty specified that the parties would act to ensure that water quality in the Danube would not be impaired by the project.
Construction of the project began in 1978, but was suspended by Hungary in 1989 due to growing waves of protest over the project's alleged environmental impacts, including decreased groundwater levels, water pollution, and economic effects on regional agriculture and fisheries. Over the next three years, negotiations continued between Czechoslovakia and Hungary to try to address these concerns and carry out the treaty's objectives. However, while negotiations were under way, Czechoslovakia undertook the unilateral diversion of the Danube onto Czech territory, causing the downstream portion of the river to recede below its all-time low water mark. Czechoslovakia justified this diversion on the ground that Hungary's suspension of the treaty made it impossible to carry out the work as initially contemplated and required Czechoslovakia to pursue alternative means of realizing the treaty's principal objectives.
Hungary responded by terminating the treaty in 1992 and applying to the ICJ to resolve the dispute. In 1997, after extensive briefing and argument by the parties, the ICJ held, first, that Hungary's 1989 suspension of work on the dam was illegal; second, that Slovakia's diversion of the Danube was also illegal; and, third, that Hungary's 1992 termination of the treaty was invalid, so that the treaty remained in effect. The ICJ also held that developing international environmental standards must be deemed to be incorporated into the treaty.
Although the treaty was ratified before many modern environmental norms were developed, it was not to be read or interpreted as a static document, but must be construed to include evolving international environmental standards, even if those standards were not referenced in the treaty or recognized at the time of the treaty's ratification. "The environment," said the court, "is not an abstraction but represents the living space, quality of life, and the very health of human beings, including generations unborn."
The ICJ then directed the parties to negotiate to carry out the objectives of the still-effective treaty and to consult with a third party to help decide how best to achieve the treaty's environmental goals. In these mandatory negotiations, the countries were to look afresh at the effects of the Danube power plant on the environment and were to seek agreement on the volume of water to be released into the Danube's historic channel. Vigilance, said the ICJ, is required in this area because environmental damage is often irreversible, and both parties were under an obligation to avoid that damage if at all feasible.
Unfortunately, while the ICJ articulated a compelling environmental principle with major implications for treaty interpretation in other international disputes, negotiations between Hungary and Slovakia as to how best to implement the ICJ ruling are still ongoing 15 years later. In this conflict at least, the ICJ's remedy of obligatory negotiations to remedy environmental violations—and to prevent potentially irreparable environmental injury—has not yet proved effective.
'Orion' Mill on River Uruguay
In a more recent decision, involving a sharply contested environmental dispute between Argentina and Uruguay, the ICJ found that a challenged project could continue to operate despite Uruguay's clear violation of an environmental treaty with Argentina to protect the River Uruguay that formed their border. This "pulp mill" dispute began in 1961 when a treaty was signed that defined their common boundary along the River Uruguay and also contemplated a future bilateral regime to govern use of the river. That future "Statute of the River Uruguay" was entered into in 1975 and established "CARU," a joint institution to oversee the operation of the river and ensure that the objectives of the 1975 Statute were fulfilled.
In 2003 and 2005 Uruguay authorized two private firms to build pulp mills along the river. Only one, the "Orion" mill, was completed because Argentine environmental protesters across the river from the planned mills began a blockade of the international bridge over the river (in 2006 work on both mills was suspended because of these blockades). The protesters contended that the mills were already contaminating the river and harming the aquatic and surrounding environment.
After negotiations between the countries failed, Argentina sued Uruguay in the ICJ in 2006, arguing that Uruguay had violated the 1975 Statute both substantively and procedurally. Substantively, Argentina claimed that Uruguay had violated its obligation to contribute to the optimum and rational utilization of the river; had failed to ensure that management of the soil and woodland would not impair the river area or the quality of the river water; had not coordinated measures to avoid changes in the ecological balance; had not prevented pollution; and accordingly had not preserved the aquatic environment. Argentina also alleged that Uruguay had failed to inform CARU of its plan to build pulp mills, as required under the 1975 Statute, so that CARU could determine if the plants would cause significant environmental damage to Argentina and, if so, to direct the parties to cooperate to prevent that damage.
While the case was pending before the ICJ, the Orion mill began operations, with resulting strong odors that raised further environmental concerns and provoked many Argentine complaints. Environmentalists in Argentina maintained an almost permanent blockade of the bridge between Argentina and Uruguay during the four years that the case was pending before the ICJ in the Hague. In 2010 the ICJ finally issued its decision, finding that, while Uruguay had breached its procedural obligation to inform CARU of its plans and thereafter to negotiate with Argentina to avoid adverse impacts, Uruguay had not violated any substantive environmental obligation under the 1975 Statute. Accordingly, requiring Uruguay to dismantle the plant was not an appropriate remedy since Argentina had failed to demonstrate that the increased pollution in the river could be traced directly to the Orion mill.
Subscribe to New York Law Journal
