Current legal developments International Court of Justice

International Journal of Marine and Coastal Law

Volumn 26, Issue 1, 2011, Pages 169-183

  Plakokefalos, Ilias ^a  

^a UNIVERSITY OF ATHENS   (Greece)

Author keywords

[No Author keywords available]

Indexed keywords

INTERNATIONAL CONFLICT; INTERNATIONAL LAW; MARINE POLICY; MARITIME TRADE;

EID: 78650657860     PISSN: 09273522     EISSN: 15718085     Source Type: Journal    
DOI: 10.1163/157180811X541431     Document Type: Article

References (100)

1. Case Concerning Pulp Mills on the River Uruguay, (Argentina v. Uruguay), Judgment of 20 April 2010, available at: , (hereinafter Pulp Mills).
2. 1975 Statute of the River Uruguay, 1295 UNTS 340.
3. Pulp Mills, para. 29.
4. Pulp Mills, para. 31.
5. Pulp Mills, para. 33.
6. Pulp Mills, para. 38.
7. Pulp Mills, para. 38.
8. Pulp Mills, para. 40.
9. Articles 1 and 41 (a) of the Statute, according to Argentina, incorporate into the Statute a number of multilateral conventions, which both parties have ratified, as well as general international law. See Pulp Mills, para. 53.
10. Articles 1 and 41 (a) of the Statute, according to Argentina, incorporate into the Statute a number of multilateral conventions, which both parties have ratified, as well as general international law. See Pulp Mills, paras. 60, 62, 63.
11. Adopted 23 May 1969, entered into force 27 January 1980, 1155 UNTS 331;
12. Adopted 23 May 1969, entered into force 27 January 1980, 1155 UNTS 331; para. 56. Uruguay did not object to this point.
13. Adopted 23 May 1969, entered into force 27 January 1980, 1155 UNTS 331; para. 56. Uruguay did not object to this point. paras. 65, 66
14. Adopted 23 May 1969, entered into force 27 January 1980, 1155 UNTS 331; para. 56. Uruguay did not object to this point. para. 79.
15. See Joint Dissenting Opinion of Judges Al-Khasawneh and Simma, available at: at para. 26.
16. The distinction is exemplified in the Articles on Prevention of Transboundary Harm from Hazardous Activities, developed by the International Law Commission (ILC), Yearbook of the International Law Commission, 2001, Vol. II, Part Two. Article 8 refers to the obligations of States to notify the potentially affected states of the planned activity, and Article 17 sets out the obligation to notify in case of an emergency. Even though Article 8 is entitled "Notification and information, " it becomes clear that the information referred to in the title is related to the content of the notification and not to a separate obligation. The obligation to exchange information is dealt with separately in Article 12.
17. See also Phoebe Okowa, 'Procedural Obligations in International Environmental Agreements' (1996) 67 BYBIL 275-334 at 289.
18. See Pulp Mills para. 81.
19. See Pulp Mills para. 87.
20. See Pulp Mills at para. 90.
21. See Pulp Mills at para. 91.
22. See Pulp Mills at para. 93.
23. See Pulp Mills at para. 100.
24. See Pulp Mills at para. 100.
25. See Pulp Mills para. 111.
26. See Pulp Mills para. 106.
27. See Pulp Mills para. 110.
28. See Pulp Mills para. 113.
29. See Pulp Mills para. 119.
30. See Pulp Mills paras.121, 122.
31. In particular the ICJ held that ".... this notification must take place before the State concerned decides on the environmental viability of the plan, taking due account of the environmental impact assessment submitted to it", at para. 120.
32. The foreign ministers of the two countries met in 2004 and reached an understanding on the process that should be followed regarding the construction of the mills. Uruguay claimed that the understanding exempted it from compliance with its Statute obligations. The ICJ held that because Uruguay did not comply with the requirements set out in the "understanding, " it could not derogate from its Statute obligations. See Pulp Mills, para. 131.
33. The foreign ministers of the two countries met in 2004 and reached an understanding on the process that should be followed regarding the construction of the mills. Uruguay claimed that the understanding exempted it from compliance with its Statute obligations. The ICJ held that because Uruguay did not comply with the requirements set out in the "understanding, " it could not derogate from its Statute obligations. See Pulp Mills, para. 133.
34. The foreign ministers of the two countries met in 2004 and reached an understanding on the process that should be followed regarding the construction of the mills. Uruguay claimed that the understanding exempted it from compliance with its Statute obligations. The ICJ held that because Uruguay did not comply with the requirements set out in the "understanding, " it could not derogate from its Statute obligations. See Pulp Mills, para. 133. Ibid
35. The foreign ministers of the two countries met in 2004 and reached an understanding on the process that should be followed regarding the construction of the mills. Uruguay claimed that the understanding exempted it from compliance with its Statute obligations. The ICJ held that because Uruguay did not comply with the requirements set out in the "understanding, " it could not derogate from its Statute obligations. See Pulp Mills, para. 134.
36. The foreign ministers of the two countries met in 2004 and reached an understanding on the process that should be followed regarding the construction of the mills. Uruguay claimed that the understanding exempted it from compliance with its Statute obligations. The ICJ held that because Uruguay did not comply with the requirements set out in the "understanding, " it could not derogate from its Statute obligations. See Pulp Mills, para. 136.
37. The foreign ministers of the two countries met in 2004 and reached an understanding on the process that should be followed regarding the construction of the mills. Uruguay claimed that the understanding exempted it from compliance with its Statute obligations. The ICJ held that because Uruguay did not comply with the requirements set out in the "understanding, " it could not derogate from its Statute obligations. See Pulp Mills, paras. 141, 142.
38. The foreign ministers of the two countries met in 2004 and reached an understanding on the process that should be followed regarding the construction of the mills. Uruguay claimed that the understanding exempted it from compliance with its Statute obligations. The ICJ held that because Uruguay did not comply with the requirements set out in the "understanding, " it could not derogate from its Statute obligations. See Pulp Mills, paras. 147, 148.
39. The foreign ministers of the two countries met in 2004 and reached an understanding on the process that should be followed regarding the construction of the mills. Uruguay claimed that the understanding exempted it from compliance with its Statute obligations. The ICJ held that because Uruguay did not comply with the requirements set out in the "understanding, " it could not derogate from its Statute obligations. See Pulp Mills, para. 154.
40. The foreign ministers of the two countries met in 2004 and reached an understanding on the process that should be followed regarding the construction of the mills. Uruguay claimed that the understanding exempted it from compliance with its Statute obligations. The ICJ held that because Uruguay did not comply with the requirements set out in the "understanding, " it could not derogate from its Statute obligations. See Pulp Mills, para. 160.
41. The foreign ministers of the two countries met in 2004 and reached an understanding on the process that should be followed regarding the construction of the mills. Uruguay claimed that the understanding exempted it from compliance with its Statute obligations. The ICJ held that because Uruguay did not comply with the requirements set out in the "understanding, " it could not derogate from its Statute obligations. See Pulp Mills, paras. 161, 162.
42. The foreign ministers of the two countries met in 2004 and reached an understanding on the process that should be followed regarding the construction of the mills. Uruguay claimed that the understanding exempted it from compliance with its Statute obligations. The ICJ held that because Uruguay did not comply with the requirements set out in the "understanding, " it could not derogate from its Statute obligations. See Pulp Mills, para. 164.
43. The foreign ministers of the two countries met in 2004 and reached an understanding on the process that should be followed regarding the construction of the mills. Uruguay claimed that the understanding exempted it from compliance with its Statute obligations. The ICJ held that because Uruguay did not comply with the requirements set out in the "understanding, " it could not derogate from its Statute obligations. See Pulp Mills, para. 166.
44. The foreign ministers of the two countries met in 2004 and reached an understanding on the process that should be followed regarding the construction of the mills. Uruguay claimed that the understanding exempted it from compliance with its Statute obligations. The ICJ held that because Uruguay did not comply with the requirements set out in the "understanding, " it could not derogate from its Statute obligations. See Pulp Mills, para. 168.
45. The foreign ministers of the two countries met in 2004 and reached an understanding on the process that should be followed regarding the construction of the mills. Uruguay claimed that the understanding exempted it from compliance with its Statute obligations. The ICJ held that because Uruguay did not comply with the requirements set out in the "understanding, " it could not derogate from its Statute obligations. See Pulp Mills, para. 170.
46. The foreign ministers of the two countries met in 2004 and reached an understanding on the process that should be followed regarding the construction of the mills. Uruguay claimed that the understanding exempted it from compliance with its Statute obligations. The ICJ held that because Uruguay did not comply with the requirements set out in the "understanding, " it could not derogate from its Statute obligations. See Pulp Mills, para. 170. Ibid.
47. The foreign ministers of the two countries met in 2004 and reached an understanding on the process that should be followed regarding the construction of the mills. Uruguay claimed that the understanding exempted it from compliance with its Statute obligations. The ICJ held that because Uruguay did not comply with the requirements set out in the "understanding, " it could not derogate from its Statute obligations. See Pulp Mills, para. 177.
48. The foreign ministers of the two countries met in 2004 and reached an understanding on the process that should be followed regarding the construction of the mills. Uruguay claimed that the understanding exempted it from compliance with its Statute obligations. The ICJ held that because Uruguay did not comply with the requirements set out in the "understanding, " it could not derogate from its Statute obligations. See Pulp Mills, para. 180.
49. The foreign ministers of the two countries met in 2004 and reached an understanding on the process that should be followed regarding the construction of the mills. Uruguay claimed that the understanding exempted it from compliance with its Statute obligations. The ICJ held that because Uruguay did not comply with the requirements set out in the "understanding, " it could not derogate from its Statute obligations. See Pulp Mills, para. 189.
50. The foreign ministers of the two countries met in 2004 and reached an understanding on the process that should be followed regarding the construction of the mills. Uruguay claimed that the understanding exempted it from compliance with its Statute obligations. The ICJ held that because Uruguay did not comply with the requirements set out in the "understanding, " it could not derogate from its Statute obligations. See Pulp Mills, para. 185.
51. The foreign ministers of the two countries met in 2004 and reached an understanding on the process that should be followed regarding the construction of the mills. Uruguay claimed that the understanding exempted it from compliance with its Statute obligations. The ICJ held that because Uruguay did not comply with the requirements set out in the "understanding, " it could not derogate from its Statute obligations. See Pulp Mills, para. 193.
52. The foreign ministers of the two countries met in 2004 and reached an understanding on the process that should be followed regarding the construction of the mills. Uruguay claimed that the understanding exempted it from compliance with its Statute obligations. The ICJ held that because Uruguay did not comply with the requirements set out in the "understanding, " it could not derogate from its Statute obligations. See Pulp Mills, para. 197.
53. The foreign ministers of the two countries met in 2004 and reached an understanding on the process that should be followed regarding the construction of the mills. Uruguay claimed that the understanding exempted it from compliance with its Statute obligations. The ICJ held that because Uruguay did not comply with the requirements set out in the "understanding, " it could not derogate from its Statute obligations. See Pulp Mills, para. 202.
54. The foreign ministers of the two countries met in 2004 and reached an understanding on the process that should be followed regarding the construction of the mills. Uruguay claimed that the understanding exempted it from compliance with its Statute obligations. The ICJ held that because Uruguay did not comply with the requirements set out in the "understanding, " it could not derogate from its Statute obligations. See Pulp Mills, para. 204.
55. Convention on Environmental Impact Assessment in a Transboundary Context (adopted 25 February 1991, entered into force 10 September 1997) 1989 UNTS 309 (Espoo Convention).
56. UNEP Guidelines of 1987 on Goals and Principles of Environmental Impact Assessment, UNEP Resolution GC 14/25.
57. UNEP Guidelines of 1987 on Goals and Principles of Environmental Impact Assessment, UNEP Resolution GC 14/25 para. 205.
58. UNEP Guidelines of 1987 on Goals and Principles of Environmental Impact Assessment, UNEP Resolution GC 14/25 para. 210.
59. Argentina used a three-dimensional modeling system (ADCP), and Uruguay used a bi-dimensional one (RMA 2).
60. Argentina used a three-dimensional modeling system (ADCP), and Uruguay used a bi-dimensional one (RMA 2) para. 212.
61. Argentina used a three-dimensional modeling system (ADCP), and Uruguay used a bi-dimensional one (RMA 2) para. 213.
62. Argentina used a three-dimensional modeling system (ADCP), and Uruguay used a bi-dimensional one (RMA 2) para. 214.
63. Argentina used a three-dimensional modeling system (ADCP), and Uruguay used a bi-dimensional one (RMA 2) paras. 216-219.
64. Argentina used a three-dimensional modeling system (ADCP), and Uruguay used a bi-dimensional one (RMA 2) para. 239.
65. Argentina used a three-dimensional modeling system (ADCP), and Uruguay used a bi-dimensional one (RMA 2) para. 242.
66. Argentina used a three-dimensional modeling system (ADCP), and Uruguay used a bi-dimensional one (RMA 2) para. 247.
67. Argentina used a three-dimensional modeling system (ADCP), and Uruguay used a bi-dimensional one (RMA 2) para. 249.
68. Argentina used a three-dimensional modeling system (ADCP), and Uruguay used a bi-dimensional one (RMA 2) paras. 251-253.
69. Argentina used a three-dimensional modeling system (ADCP), and Uruguay used a bi-dimensional one (RMA 2) para. 257.
70. Argentina used a three-dimensional modeling system (ADCP), and Uruguay used a bi-dimensional one (RMA 2) para. 259.
71. Argentina used a three-dimensional modeling system (ADCP), and Uruguay used a bi-dimensional one (RMA 2) para. 264.
72. Argentina used a three-dimensional modeling system (ADCP), and Uruguay used a bi-dimensional one (RMA 2) para. 262.
73. Argentina used a three-dimensional modeling system (ADCP), and Uruguay used a bi-dimensional one (RMA 2) para. 282.
74. Argentina used a three-dimensional modeling system (ADCP), and Uruguay used a bi-dimensional one (RMA 2) para. 275.
75. Argentina used a three-dimensional modeling system (ADCP), and Uruguay used a bi-dimensional one (RMA 2) para. 281.
76. Most notably the International Law Commission (ILC) in its commentary on the Draft Articles on Prevention noted that Article 3, which sets out the basic due diligence rule of prevention of transboundary harm, and Article 4, which sets out the basic rule of co-operation, provide the basic foundation of the Articles on Prevention. See ILC, op. cit., supra note 15 at 153.
77. See also Patricia Birnie, Alan E. Boyle, Catherine Redgwell, International Law and the Environment, 3rd ed. (Oxford University Press, Oxford, 2009) 137-190. The authors do not draw a line between procedure and substance. Instead, they treat all obligations as forming the content of the general rule of prevention of transboundary harm.
78. Article 50 stipulates that the ICJ may "entrust any individual, body, bureau, commission or other organization [...] with the task of carrying out an inquiry or giving an expert opinion". The Rules of the ICJ (1978; available at: ) remove most of the practical obstacles associated with Article 50.
79. See Separate Opinion of Judge Cancado Trinidade, available at: at para. 151.
80. See Declaration of Judge Yusuf, available at: at para. 1.
81. See Joint Dissenting Opinion, op. cit., supra note 14 at para. 17.
82. The ICJ has used Article 50 in only two cases (Corfu Channel Case, Judgment of 9 April 1949
83. [1949] ICJ Rep 4;
84. Corfu Channel (Compensation), Judgment of 15 December 1949 [1949] ICJ Rep 244;
85. Delimitation of the Maritime Boundary in the Gulf of Maine Area [1984]
86. ICJ Rep 246).
87. On Article 50 see Shabtai Rosenne, The Law and Practice of the International Court (1920-2005) (4th ed., Martinus Nijhof, Leiden, 2006) 1305-1335
88. and Christian V. Tams, 'Article 50' in: Andreas Zimmermann, Christian Tomuschat, Karin Oellers-Frahm (eds.) The Statute of the International Court of Justice, A Commentary (Oxford University Press, Oxford, 2006) 1109-1119.
89. See Pulp Mills, para. 242.
90. This does not mean that the issue of the reversal of the burden of proof has not been discussed in the literature: see, for example: Lada Šoljan, 'The General Obligation to Prevent Transboundary Harm and its Relation to Four Key Environmental Principles' (1998) 3 ARIEL 209-232 at 211-212;
91. Birnie et al., op. cit., supra note 72 at 158-159;
92. Jonathan B. Wiener, 'Precaution', in: Daniel Bodansky, Jutta Brunnée, Ellen Hey (eds.), The Oxford Handbook of International Environmental Law (Oxford 2007) 598-612 at 606. Nevertheless, these discussions do not necessarily concentrate on the use of this reversal in a dispute settlement context.
93. The Arbitral Tribunal in the Lac Lanoux case reached the same conclusion;
94. see Lac Lanoux (Espagne v. France), XII UNRIAA 1957, 281 at 308.
95. See also Frederic L. Kirgis, Jr., Prior Consultation in International Law (University Press of Virginia, Charlottesville, VA, 1984) at 361;
96. Birnie et al., op. cit., supra note 72 at 180;
97. Okowa, op. cit., supra note 15 at 306.
98. See Joint Dissenting Opinion, op. cit., supra note 14, at paras. 18-25.
99. See Declaration of Judge Skotnikov, available at: . Judge Skotnikov claimed that there was indeed a "no construction" obligation to be found in Article 12, but Judges Al Khasawneh and Simma did not delve into this question. They merely expressed the view that under Article 12 the ICJ would have had a much wider role to play in the sense that it then becomes the adjudicator on technical and scientific issues. It is within this context that the lack of resort to expert opinion becomes even more problematic.
100. See Joint Dissenting Opinion, op. cit., supra note 14, at paras. 20, 23.