In its judgement on ”Pulp mills on the River Uruguay (Argentina vs. Uruguay)”, the International Court of Justice, (UN principal judicial organ) declared that Uruguay has not breached its substantive obligations for the protection of the environment provided by the Statute of the River Uruguay by authorizing the construction and commissioning of the Orion (Botnia) pulp mill.
The Court notes that “the scope of the obligation to prevent pollution must be determined in light of the definition of pollution given in Article 40 of the 1975 Statute”.
Article 40 defines pollution as “the direct or indirect introduction by man into the aquatic environment of substances or energy which has harmful effects”.
The Court also notes that for the purposes of complying with obligations under the 1975 Statute and under general international law, the Parties are obliged, when planning activities which may be liable to cause trans-boundary harm, to carry out an environmental impact assessment, the content of which must be determined by each State within its domestic legislation or in the authorization process for the planned activity.
This means that “any decision on the actual location of such a plant along the River Uruguay should take into account the capacity of the waters of the river to receive, dilute and disperse discharges of effluent from a plant of this nature and scale”.
The Court further observes that “the obligation to prevent pollution and protect and preserve the aquatic environment of the River Uruguay, laid down in the Statute and the exercise of due diligence implied in it, entail a careful consideration of the technology to be used by the industrial plant to be established”.
On the basis of the documents submitted to it by the Parties the Court considers that “there is no evidence to support the claim of Argentina that the Orion (Botnia) mill is not BAT-compliant in terms of the discharges of effluent for each tonne of pulp produced”.
Following a detailed examination of the Parties’ arguments, the Court ultimately finds that “there is no conclusive evidence in the record to show that Uruguay has not acted with the requisite degree of due diligence or that the discharges of effluent from the Orion (Botnia) mill have had deleterious effects or caused harm to living resources or to the quality of the water or the ecological balance of the river since it started its operations in November 2007”.
Argentina made its presentation before the International Court of Justice in May 2006. A year later (May 2007) MercoPress published a column by Dr. Wayne Dwernychuk RP Bio under the heading of “Argentina's Environmental Hypocrisy”, which at the time caused an uproar.
Dr. Wayne Dwernychuk, R.P.Bio. is a senior environmental scientist with Hatfield Consultants in Canada and was a consultant for the IFC in its impact study on the Botnia mills.