Environmental Journeys 21: The World Court I — Argentina v. Uruguay, a case full of images
I waited until closing. The Mauritshuis art museum is in the Centre of The Hague, the historical and political heart of the Netherlands. When I first passed, the room was crowded. And I wanted to see her for myself and by myself. As people exited the museum with the periodic announcements of closure, I stayed behind, slipped into the room and absorbed the immediacy of her face, an encounter brought forth by by Vermeer’s beautiful use of light. The Girl with the Pearl Earring and I shared our few minutes before museum workers chased me out and I headed back to the “war room” in our hotel aside a beautiful canal.
I traveled to the Hague by plane and train. I came to provide technical expertise for a case before the World Court also known as the International Court of Justice or ICJ. It was one of two cases before the Court for which I served as an environmental expert. Both involved disputes between countries related to environmental harms and impacts on humans. They were among the first cases of such claims of harm to come before the ICJ. The Court considers a few new cases per year (3 is a common number). These vary greatly and reflect many of the events we hear on the news such as Russia’s invasion of Ukraine as well as a variety of situations where advice is sought or a decision requested on matters of international law. To see this variety, check this out Cases brought before the ICJ.
For me, the scenes from the Hague and the ICJ flowed from images of a South American river receiving industrial effluents and a tropical rainforest carved out to support drug cartels. Conflicts between countries in these areas led to the cases before the ICJ. The journeys would include visiting and studying areas, researching what had occurred and the underlying science of the situations, and responding to rebuttals from experts on the other side of the matters.
I was fortunate to be asked to serve as an expert in these cases by the law firm Foley Hoag & Elliott and especially Adam Kahn. This was indeed serendipity and synchronicity as I worked on numerous environmental projects with the firm in the Commonwealth of Massachusetts, but we were now off to the world. In addition to Adam, the cases were led by a cadre of international law attorneys including Paul Reichler, Lawrence Martin, and Clara Brillembourg, of Washington, DC, and Andrew Loewenstein of Boston.
A case full of images
The Argentina v Uruguay dispute brought before the ICJ related to the construction and operation of a pulp mill — the Orion plant — on the Uruguay River that forms the boundary between the two countries. This was the second pulp mill to be constructed within a short period of time. The geography of the area and main features are shown below for the region as a whole and then in more detail for the area specific to the case.
Two main issues were considered by the ICJ. The first was that Uruguay did not consult with Argentina when evaluating the potential pulp mill impacts and making decisions to construct them; such consultation was required by an international agreement between the countries to jointly protect the water quality of the river. The second was the claim brought by Argentina that the pulp mills in Uruguay would adversely impact the river through eutrophication, deterioration of water quality, and loss of biodiversity.
The environmental concern regarding construction of the mills (in particular the Botnia Mill) was a lightning rod for Argentinians and environmental groups who forcefully protested. Two months after the approval of the mills was made public in 2005, masses of people from Argentina blocked the General San Martin Bridge over the Uruguay River. The President of Argentina joined the mass protest. This galvanized the matter, and underscored the tensions that had arisen between Argentina and Uruguay. The escalating dispute between the two countries carried the matter to the ICJ to adjudicate.
Exponent and I were retained on behalf of the government of Uruguay, the defendant in the case. I relied greatly on the expertise of Tom Deardorff, an expert on the impacts of pulp mills on aquatic systems. We had a team of eight skilled and knowledgeable people to address the technical complexities that arise in environmental and engineering cases.
The biggest environmental issue involved the potential that nutrients such as phosphorous in the mills’ effluents would contribute to eutrophication in the river and negatively affect the aquatic life of the system. The firm Ecometrix had studied the river and written an Environmental Impact Statement. The evaluation of impacts by Ecometrix and plan reviews by engineering firms led to design and operational changes to the mill that reduced the potential for adverse effects on the river. We relied on that information and supplemented it with additional research.
The case involved many legal and technical matters. The entirety of the ICJ’s deliberation can be viewed here ICJ Judgement on Argentina v Uruguay; and here is a digest Argentina v Uruguay regarding a pulp mill on the Uruguay River. On the technical side, the potential for environmental harm was paramount and that is where we were involved.
We prepared a comprehensive report to support the arguments that Uruguay’s lawyers would present to the ICJ. Our report was made available to Argentina in advance and, as expected, they countered. This was normal procedure, and we continued preparing for court. But then an event riveted the attention of Argentina, Uruguay, and the ICJ.
On February 9 2009 a massive bloom of blue-green algae was seen in the Uruguay river in the vicinity of the two paper mills. Blue-green algae can be toxic if ingested in water or inhaled as aerosols and these algae can also harm aquatic animals and wildlife. Argentina scientists, lawyers and their populace focused on this as indicative of the effects of the pulp mills. The event was highlighted by Argentina to the ICJ as the proverbial “smoking gun”. The ICJ’s judgement document references Argentina’s position and assertion as:
181. Argentina contends that Uruguay has breached Article 36 of the 1975 Statute, which places the Parties under an obligation to co-ordinate through CARU the necessary measures to avoid changing the ecological balance of the river. Argentina asserts that the discharges from the Orion (Botnia) mill altered the ecological balance of the river, and cites as examples the 4 February 2009 algal bloom, which, according to it, provides graphic evidence of a change in the ecological balance, as well as the discharge of toxins, which gave rise, in its view, to the malformed rotifers whose pictures were shown to the Court.
Tom Deardorff and I discussed the February 4, 2009 algae bloom and Argentina’s contention that the mills caused it. Many factors can influence the occurrences and locations of algae blooms. These include flow directions and speed, nutrient inputs, temperature, and changing conditions over time. An image of the February 4 2009 bloom was captured by a Landsat satellite soaring high above the earth. That image is shown below.
This claim by Argentina that the Botnia and ENCE pulp mills had caused a specific blue green algae bloom transformed our technical work regarding potential impacts to a causal analysis (sometimes referred to as environmental epidemiology). The causal question was: Did effluents from the pulp mills cause the February 9 bloom?
Because the Uruguay River is a flowing system with occasional reversals in flow due to tides and surges, we were curious about what was happening immediately before the observation of the observed algal bloom on February 4. We first asked our colleague Jane Ma, Exponent’s GIS and remote imagery specialist, to analyze the image from the February 4 satellite image.
Jane used spectral analyses to reveal the relative amounts of chlorophyll present in the river. Chlorophyll is a plant pigment and relates directly to the amount of algae. Using this technology, the intensities of the reflected wavelengths of light associated with chlorophyll are assigned colors to visualize relative concentrations. In the figure below first the February 4 2009 bloom, red indicates the highest concentrations and blue indicates the lowest concentrations of chlorophyll and algae.
We noticed that the February 4 image shows algae blooms upriver as well as in front of the mills. We wanted to see what was happening in the river before February 4. Jane searched and obtained satellite data for February 2, two days prior to the bloom that riveted the attention of the Argentina populace and scientists. The two images of the same area two days apart are shown below.
Two days prior to the reported February 4 algae bloom in front of the mills, blooms were already occurring upriver and in Nandubaysal Bay along the coast of Argentina, west of the river segment in front of the mills. Further, on February 2, 2009, no bloom was evident in front of the mills.
The February 2 image shows that the bloom was not initiated at the mill but instead at locations consistent with historical observations prior to the mill operation. Locations where blooms appear to be initiated include upper river locations and Ñandubayzal Bay. Together the two images indicate that algal blooms initiated elsewhere in the river were likely transported to the river reach in front of the mills. While this by itself does not eliminate the possibility that the mills contributed to the bloom, analyses of phosphorous inputs from the mills suggest it would be negligible.
Within the ICJ Peace Palace, the oral briefs presented to the judges were given with amazing oral inflections from written texts that are provided beforehand to the judges. Paul Reichler of Foley Hoag presented our analysis regarding the February 9, 2009 algae bloom. This oratory was communicated verbatim from a script we had worked on the night before. I considered this presentation by Paul and other international law attorneys during the hearing as an artform, as it came across extemporaneous and impactful.
Paul included something in his presentation that I had not specifically considered. Although I thought of the city of Gualeguaychú as a source of nutrients to the river, Paul pointed to a particular contemporaneous event, the Carnival of Gualeguaychú. This is one of the largest and most important carnival parades on earth. In late January and early February of 2009, hundreds of dancers and 30,000 spectators participated in 10 nights of partying in Gualeguaychú. Sewage effluents from the city drain to the river at the location where a bloom was observed in Nandubaysal Bay and adjacent to the outflow from the river passing by the city that would carry sewage effluents from Gualeguaychú. I thought that was an interesting causal consideration. Apparently so did the ICJ.
While the ICJ concluded that Uruguay was obliged to consult and work with Argentina on environmental matters affecting their shared river and boundary, they did not find the arguments of increased environmental harm compelling. That was consistent with our analysis including the graphic February 9, 2009 algal bloom event. The court stated this aspect of their finding as follows:
249. Uruguay contends that the algal bloom of February 2009, and the high concentration of chlorophyll, was not caused by the Orion (Botnia) mill but could have originated far upstream and may have most likely been caused by the increase of people present in Gualeyguaychú during the yearly carnival held in that town, and the resulting increase in sewage, and not by the mill’s effluents. Uruguay maintains that Argentine data actually prove that the Orion (Botnia) mill has not added to the concentration of phosphorus in the river at any time since it began operating.
250. The Parties are in agreement on several points regarding the algal bloom of 4 February 2009, including the fact that the concentrations of nutrients in the River Uruguay have been at high levels both before and after the bloom episode, and the fact that the bloom disappeared shortly after it had begun. The Parties also appear to agree on the interdependence between algae growth, higher temperatures, low and reverse flows, and presence of high levels of nutrients such as nitrogen and phosphorus in the river. It has not, however, been established to the satisfaction of the Court that the algal bloom episode of 4 February 2009 was caused by the nutrient discharges from the Orion (Botnia) mill.
I acknowledge the contribution of our team and especially that of Tom Deardorff and Jane Ma. These two individuals made the technical aspects of the case presented to the ICJ especially impactful.
This is the first of two cases before the ICJ for which I and Exponent provided expert support. The second case is the continuation of this journey and can be read here.
Thank you to the reviewers of this story: Susan Kane Driscoll, Thomas Deardorff, and Jane Ma.
