GoJIL Vol. 3, No. 1 (2011)
Adjudicating Conflicts Over Resources: The ICJ’s Treatment of Technical Evidence in the Pulp Mills Case
Juan Guillermo Sandoval Coustasse, Emily Sweeney-Samuelson
Conflicts over resources and the consequences of utilizing those resources can ignite social and political demonstrations, especially when the conflict is over a shared resource. Solving those conflicts requires both an institution and a procedure that are not just binding but also legitimate in front of the constituencies. This process must achieve transparency and technical adequacy.
The recent Pulp Mills case involved concerns over the environmental consequences of installing two pulp mills on the Uruguayan shore of the river that separates Argentina from Uruguay. A controversial point of the decision, as highlighted by the separate opinions of various judges, is how the court established the facts of the case; in particular, the role of experts. The separate writings raised fundamental questions as to the fitness, capacity and even will of the court to decide a controversy based on complex evidence.
The criticism is logical and the risks evident: The court might not be properly equipped to solve disputes that require deeper technical analysis. However, should it refrain from facing the challenges, the authoritative status of the Court may be threatened. As a result, a disruption in the evolution of international law could occur. A major goal of the ICJ is to achieve uniformity in international law, and the interplay of several specialized tribunals, for instance, without inter-court binding precedent, could result in a variety of decisions on the same principles, affecting the development of substantive law.
When applied to international conflicts over resources, an effort towards transparency and legitimacy is being demanded by constituencies and governments. Conflicts over shared resources, as in the Pulp Mills case, or over actions of a state affecting resources located in another, can affect a state’s economic viability and its legacy to future generations. Transparency in the handling of evidence can help achieve legitimacy for the Court as a proper organism for these types of disputes, and for governments when facing enforcement of a decision in front of their constituencies.
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