State-Responsibility for Cross-Border Environmental Damage - Why Argentina wants to sue Uruguay over a Finnish-owned factory Stefan Kirchner

On 1 October 2013, the government of Uruguay allowed a paper mill at the border with Argentina to increase its production. Argentina now fears damages to the environment, in particular a local river. After negotiations have failed, Argentina now contemplates bringing the case to the International Court of Justice (ICJ) in The Hague. International law not only has a concept of good neighborliness, international environmental law goes one step further and prohibits actions which cause damage to other countries. If one government allow the operations of a factory and this factory causes transboundary environmental harm in an other country, that second country can sue the first State if it has issued a permit and was negligent in supervising the factory. In fact, one of the classical cases in international environmental law is not that much different from the scenario feared by Argentina. In the 1941 Trail Smelter Arbitration between the United States and Canada, the United States were compensated for environmental damage in the state of Washington which had been caused by a lead and zinc smelter in neighboring British Columbia. Since then it has become a rule of customary international law that States must prevent environmental damages abroad which would be caused in their territory. In the case at hand, Argentina is concerned about potential damages to the environment. International environmental law does not only require avoiding damages, in case of projects which can have such a cross-border impact, international law requires States to cooperate. Very often, this unfortunately does not happen. In fact, many nuclear power plants are deliberately located near borders so as to reduce the risk of contamination of ones own territory in case of a nuclear accident. This in itself is not outright illegal but requires if not consent then at least prior consultations with the neighboring country. In fact, Argentina and Uruguay have been in negotiations about the paper mill for years but had not yet come to a result. Bringing the case to the ICJ could not only help Argentina but a judgment by the ICJ could clarify the extent of international legal obligations of States when it comes to issuing permits for factories etc. which can cause environmental damages abroard. Uruguay should fully cooperate with Argentina and the ICJ in this manner and reduce the potential impact on the environment as much as possible.

Assoc. Prof. Dr. Stefan Kirchner, MJI is Visiting Professor for Fundamental and Human Rights at theFaculty of Law of the University of Lapland in Rovaniemi, Finland, and teaches International Law of theSea at the Faculty of Law of Vytautas Magnus University in Kaunas, Lithuania. This text only reflects his private opinion. Email:stefan.kirchner@humanrightslawyer.eu @Law247 Twitter: