From Prevention To Compensation: Why Pulp Mills Does Not Close The Liability Gap In Transboundary Environmental Harm
Abhyuday Singh, B.A.LL.B. (Hons.), National Law Institute University, Bhopal
Sharad Pratap Singh, B.A.LL.B. (Hons.), National Law Institute University, Bhopal
Soumil, National Law Institute University, Bhopal
ABSTRACT
This Case Note argues that the case law running from the Trail Smelter Arbitration (1941) through Pulp Mills on the River Uruguay (2010) has consistently hardened States’ procedural obligations of prevention, principally the duty to conduct an environmental impact assessment (“EIA”), while leaving the underlying question of substantive compensation for transboundary environmental harm essentially where it stood in 1941: available only where States have consented to a forum empowered to fix an indemnity, or where a sector-specific treaty regime, such as those governing nuclear accidents or oil pollution, has been separately negotiated. Tracing the line of cases from Trail Smelter through Corfu Channel, the Nuclear Weapons Advisory Opinion, Gabčíkovo–Nagymaros, and finally Pulp Mills, this Note shows that each decision has extended the normative reach of the no-harm rule without attaching to it any corresponding remedial mechanism. Pulp Mills is frequently cited as authority for a general and evolving law of State responsibility for environmental harm; this Note contends that such a reading overstates what the International Court of Justice actually decided, which was a procedural EIA obligation grounded partly in general international law and partly in a treaty-specific notification duty, alongside an express finding of no breach of Uruguay’s substantive obligation to prevent pollution. The Note concludes that prevention and compensation have developed asymmetrically, and that closing the resulting liability gap requires deliberate treaty-building of the kind that produced the nuclear and oil-pollution regimes, rather than a further extension of the prevention case law by analogy.
Keywords: transboundary harm; State responsibility; environmental impact assessment; Pulp Mills; no-harm rule; compensation gap.
