We bring you an article written by him.
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Increasingly, journalism requires academic and theoretical support to enable it to understand what is happening. This necessary knowledge increases the quality and credibility of a newspaper, in the face of increasingly demanding and vigilant readers.
In this regard and in light of the problem of installing paper mills in Uruguay, Aduana News spoke with Dr. Eduardo Pigretti, Director of Postgraduate Studies in Natural Resources and Environment at the Faculty of Law at the UBA, who provided the following article.
¨The Uruguay River as a shared natural resource¨
By Eduardo A. Pigretti *
-Introduction.
The installation of two pulp mills on the Uruguayan side, with its associated potential contamination, has caused a series of events that have shaken Argentine-Uruguayan relations in a striking way.
There is no path to an agreement or solution in sight despite the concern of the governments involved and the civility of the two republics.
In this article I will begin by recalling that the Uruguay River is what is known in natural resources theory as a shared natural resource.
The most famous exponent of the evolution of concepts regarding this type of resources is Dr. Julio A. Barberis, who, followed by other professionals such as Dr. Frida Armas Pfister and María Quero, have managed to present the topic with completeness.
After an initial work resulting from the work in Germany by Dr. Barberis, we took as a reference a book by Editorial Civitas (The right to water in Latin America and Spain: change and modernization at the beginning of the third millennium, 2000). In it, a collaboration is presented that summarizes the problem under the title "Application of principles of international law to the administration of shared rivers. Argentina with Paraguay and Uruguay."
-Opinion that we support.
We fully agree with the positions adopted by Dr. Julio Barberis and his followers, regretting that our country has not taken the direction of its policy on paper mills based on the central points suggested by these authors.
If we see any driving defect on our part, the national policy on this matter is that:
It has not been possible to establish a negotiating table that remains calm and quiet, allowing for a coherent line and possible conversation.
The contents of the Uruguay River Statute have not been used in the application of the Statute, such as, for example, the direct intervention in any of the waters and margins of the jurisdictional police. Argentina and Uruguay, in any of the flows or banks of said river, have the right under the Statute to intervene without notice and resolve (leading to the arrest of those responsible) any hypothesis of affectation of the river and its contamination.
This right, established in times of true fraternity, has not been maintained or applied, nor have the exchanges of information that should have been carried out with the river regulatory commission established by the Statute.
No mention was made of friendly states such as Spain and Finland, which have international responsibility for the signatures on their flags and the right to request and provide international protection on these statutes. No mention was made of the national authorities of these countries.
The concern about the abandonment of legal formulas in this case causes us concern because this path will lead us to a possible suspension of international relations with the serious disruption of a possible foreign intervention in the conflict coming from any country that considers its intervention in this type of issues possible.
When Uruguay claims that it will require compensation for the closure of border crossings, it should know that Argentina has the same right since the expenditure of efforts and tasks by its own citizens is also compensable.
The suspension, especially provisional, of construction work on paper mills is a national power that any state has the right to exercise by virtue of its own imperium.
All situations, however difficult they may seem, can be resolved at the national level if the principle of equity is followed.
We have informed the world that we will go to the International Court of Justice in The Hague long before the time for the appropriate dispute resolution has run out.
Furthermore, the Court is famous for the long time it takes to make its decision, which suggests that the paper mills will be finished and in operation long before the resounding judicial victory that we expect.
-The position of scholars
The aforementioned jurists have developed in their works and articles the obligations at stake that were already hinted at in 1933 by the Declaration of Montevideo of the aforementioned year, promoted by the Pan-American Union. In that declaration, the principles were established regarding: not causing significant damage to the quality of the waters; respecting the equitable and reasonable use of the waters; communicating to the states the works that affect the condition of the river, which implies: the need for prior consent; the consent of the affected states; prior communication and the duty to negotiate in good faith.
These postulates have been carefully developed by Professor Julio Barberis and his collaborators.
-Transcription of selected paragraphs.
Below we add some quotes from the latest work mentioned above.
"The VI International American Conference adopted a recommendation to the Pan-American Union to carry out studies on the legal regulation of international rivers. This took place in Montevideo in 1933."
"Significant damage: "Significant damage" does not mean damage of considerable magnitude, but rather impairment that can be objectively verified."
Prior communication: States generally agree on a procedure by which one communicates to another its project, its mode of operation, and other necessary information.
´The duty to negotiate: Both states must try to reach a solution through diplomatic negotiation.¨
"In this regard, it should be noted that the obligation to negotiate in good faith is not respected when it is subject to abnormal deadlines, the established procedure is not respected, one of the parties unjustifiably breaks off the negotiation or systematically refuses to take into consideration the harmful proposals or interests of the other party."
"The right of neighbourhood is limited to perceiving that States should not carry out acts in areas close to an international border that cause harmful consequences for a neighbouring country."
"Likewise, the concept of abuse of rights prevents the exercise of one's own right when it causes a proportionally important injury to another."
"These concepts cannot constitute a basis for the entire legal regime of shared natural resources because they only refer to or serve as a basis for the rule of not causing significant harm."
* Eduardo A. Pigretti
He is a lawyer and holds a PhD in Social Sciences from the UBA.
Full Professor of “Legal Regime of Natural Resources” and directs the postgraduate course in the specialty of Natural Resources and Environment, all at the Faculty of Law of the UBA.
He is a consultant and legal advisor to public and private companies in the environmental, mining, oil and gas sectors, as well as to public and private entities related to natural resources. He served as Undersecretary in the Ministry of Public Works and Services and held public positions in the Ministries of Culture and Education, Economy and the Interior of the Nation and in the Province of Buenos Aires, La Pampa, Santa Fe and Corrientes.
Academic of the Inter-American Academy of International and Comparative Law and of the Argentine Academy of Environmental Sciences and Member of the Institute of Environmental Policy of the National Academy of Moral and Political Sciences. Member of the International Court of Arbitration and Environmental Conciliation of the Salto Grande International Tribunal and of the Tribunal of the Argentine-Paraguayan Joint Technical Commission of the Paraná River.
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