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The Hague court legitimizes the model of unsustainability and dependency

The Hague court legitimizes the model of unsustainability and dependency

By Pablo Sessano

With its ruling in favor of Botnia, the International Court of The Hague legitimizes a sustained model in technology that takes advantage of the vulnerability of poor countries, disregarding the condition and rights of the environment and the opinion of the people. And the precautionary principle serves, among other things, to prevent this insufficiency that clearly favors the interests of polluters.


With its ruling in favor of Botnia, the International Court of The Hague legitimizes a sustained model in technology that takes advantage of the vulnerability of poor countries, disregarding the condition and rights of the environment and the opinion of the people.

The ruling of the Court of The Hague not only fails to account for the relevance of the risk it poses to the river, the ecosystem and tourism in the area, but it also confirms, legitimates, the looting model. In the framework of the judicial process, the liberal justice imposes its criteria and is blurring, if it was ever transparent, the center of the problem that the case of the Botnia pulp mill in front of Gualeguaychu represents.

The ratification of the validity of the Uruguay River Treaty of 1975 and the fact that Uruguay violated that agreement, constitutes a meager triumph of Argentine diplomacy that has never been characterized by its expertise. Uruguay at the time deliberately violated the treaty because it had to respond to powerful interests established decades ago in the country and because it was economically convenient. Always in terms of the large numbers of macroeconomic accounting, because we well know that once the installation is completed, Botnia employs a number of workers that is far from justifying its presence and, similarly to the mining companies in Argentina, leaves little and nothing in the country. . And he knew he would lose the fight in court. But as the former Foreign Minister Bielsa pointed out more or less like this, never a building or facility already built is uninstalled by a judicial decision.

For this reason, all expectations regarding the possible demand to uninstall the pulp mill were in vain. This expectation is naivety anchored in our insolvent and self-indulgent memory. We do not register, although it happens under our noses constantly, the way in which economic interests protected by liberal justice advance over the public, natural and community space.

In general, all cities, but in particular Buenos Aires, and Montevideo by case, grow at the rate of the consummated events, having as a rule the violation of the norms, legal and technical requirements and the consecrated rights of citizens, to Knowing that a posteriori, in the supposed case that a lawsuit succeeds, the justice will give them reason in the "legitimate" defense of the acquired right, on the basis of the illegitimacy of violating that of others or those of the environment. The same occurs with mining, for example, the case of activity on glaciers is very clear, the veto of the law does nothing else to enable this mechanism, to create a legal vacuum, on which industrial progress can be built and then it will be very difficult to undo that path. Not to mention the political and economic pacts that underlie this kind of operation, which is not easy to undo either. It is always more expensive and expensive to undo than to prevent.

The precautionary principle emphasizes precisely this aspect. But that principle does not seem to be a relevant element in the legal bibliography of the Hague court and as M. Wainfeld pointed out in Page 12, the Court is a high-ranking court, made up of first-rate jurists, but nobody is perfect. None of them is an expert in environmental law nor does their jurisprudence record similar precedents to the case. Dismantling or relocation were almost preposterous hypotheses, they were not corroborated. The undertaking will continue, foreign investors and national interests have been spared, such was the speech of the Frente Amplio government.

And it must be said that it is not paradoxical that it is also favorable to the Argentine government, even if they do not say so. Because if on the one hand, as the journalist himself points out, politics, which does not amount to partiality, will have influenced the sentence that arrived at the cart, as is de rigueur in these procedures. In a low voice, Argentines and Uruguayans acknowledge (and salute) that the Court postponed its pronouncement, which was cooked at the end of 2009, in order not to interfere in the Uruguayan presidential and Argentine parliamentary elections; on the other hand, a decision of this caliber was conceives thinking beyond the parties involved: it is plausible that the unpublished contest can be repeated in a context of growing interest (and litigation) of environmental claims. What gives the ruling the character of legitimating the mechanisms that we just referred to, to push development in our region as understood, from the power of the world, the transnationals and the Latin American neo-developmental states (or governments), mechanisms that Paradoxically now, they can be put into practice with more legal certainty.

The insolvency of the Court of The Hague to assume jurisdiction and impartiality in conflicts arising from the environmental crisis leaves no doubt about the need to create an international court specifically dedicated to environmental conflicts.

Senator Filmus and President Cristina have agreed that it is never going to be possible to build a pasture on the Uruguay River without the consent of the two countries. Precisely, the idea that should concern us now is that they can agree on the installation of these or other processes, without the necessary social license or through the manipulation of consensus mechanisms. Let us remember the terms of the disputes from the beginning and we agree that there will always be doubts as to what Argentina and Uruguay would have done if the investment of the pasteras had been on this side. The position of the Argentine government regarding the environmental issue does not refer precisely to an imaginary of justice.

Regarding pollution, the question highlighted by Laura Vales in her note "The environmental issue" on Page 12 is fine. The question that circulated yesterday among specialists on the subject is whether the opinion opened a door for greater control or, on the contrary, it set the precedent for a lax assessment of the evidence. The Court of The Hague did not say exactly that Botnia does not pollute: it said that nonylphenols (substances of prohibited use) were detected in the river, as well as greater amounts of dioxins and furans and an episode of cyanobacteria flowering, but it maintained that Argentina could not prove that the presence of these toxins in the river was due to the activity of Botnia. He did not deny that nonylphenols have been detected, but said that “there is no evidence to prove a link with the operation of Botnia. "There is no clear evidence to link the presence of dioxins and furans with the operation of Botnia." The court also dismissed the noise and visual contamination and it would be interesting to know on the basis of which criteria it could reach that conclusion, because although in these aspects the subjective factor is relevant, this is also valid for the Court, and in any case occupy a wooded space with an industrial facility of that magnitude, strongly illuminated at night seems a significant fact at least to make this conclusion controversial.


At the same time, the court made it clear that contamination will be the only reason why, in the future, the country may demand the closure of the plant. Thus the things, the environmental reason remained as the only way open to litigate against the pulp mill.

But as we said before, this only reason within the framework of existing justice that does not consider the precautionary principle as a central element, has at least two problems: it can only be judged whether a process contaminates once it contaminated, that is, measurement damage, and it is also necessary to prove the causal relationship between a possible cause or cause and a result or victim. And the precautionary principle serves, among other things, to prevent this insufficiency that clearly favors the interests of polluters.

The court ordered Argentina and Uruguay to control Botnia's effluents through the CARU (Administrative Commission of the Uruguay River). It is to be assumed that in this case they will take care of it, but in no way can we trust that it will be for a true vocation to protect the environment or the citizen rights of the people of Gualeguaychú or of all of us who use the beaches of the Uruguay River. and the water of the Río de la Plata. Successive Argentine governments in recent decades have demonstrated their indifference in this regard and their clear industrialist and resource-destroying stance, as well as an ethically unacceptable disdain for health: the stream and the Matanza River basin are overwhelming proof: 5 million people at risk. The current government only acts spasmodically when the media, also spasmodically, highlight citizen unrest or the Supreme Court demands that it do what it was required to do 4 years ago. There are still no epidemiological studies, polluting dumps persist, garbage dumps are increasing, plans are inconsistent, the slowness and ineffectiveness of environmental authorities is prodigious, jurisdictions fight and obstruct control operations in the basin, the Basin Committee it is virtually inoperative.

It is logical that doubts arise in this context, when we hear H. Sejenovich say that Argentina, in the four years that the trial took, did not take care of having the devices to measure them. We do not have them in Argentina and we do not have them in Uruguay. The samples are being sent to Canada for analysis.

Because we must also say-remember-that Argentina has pulp mills and paper mills with low environmental performance, that Argentina's environmental management at the national and provincial level is terrible, the allocation for environmental management in the 2010 budget does not reach 6%! !

In any case, when it comes to environmental protection and the defense of collective rights, it seems that we continue to depend on the voice and conviction of the people who come out to defend their respective places. The residents of Gualeguaychú will continue with the claim that should perhaps take another character, taking into account that the most conflictive part and certainly not the central part of the problem, which is the conflict derived from the cut off of the international passage, has been settled and with it good some of the support gained will be lost. It must be recognized that except for the Assembly and for not all the country's environmentalists and some others, the problems derived from the interruption of the border crossing were always more relevant or critical than the “supposed” problems of contamination.

At this point, positions become infatuated, voices are distorted and identities intersect and we can see how Enrique Martínez, president of INTI, a very serious voice, constructive of alternative approaches and criticism of current developmental industrialism, always maintained close opposition to the border crossing cut; and we see how a De Angelis, a soybean leader with a dubious reputation as an environmentalist, also strongly supports the cut.

It will also be necessary to see how the interior of the Gualeguaychú assembly has been resolved up to now, secondary positions referring to polluting practices, especially in the area of ​​agro-production, which undoubtedly constitutes a contradiction in the assembly's environmental discourse.

But on the issue of fighting methods, the demand to open the bridge, now constituted as a legal recourse, does not seem to leave much margin for a possible maintenance of the cut. It will be the opportunity to search and find other methods and mechanisms to raise the voice and keep the discontent and the complaint visible, but above all the expectation of a solution, even if it no longer involves the dismantling of the plant. Anyway, this necessary change in no way gives the reason to those who in these years maintained a position opposed to the court, on the contrary. The cut was legitimate as a method for the sole fact of having been supported by the social consensus of the main actors in the conflict. And it was, without a doubt, the method that forced the outcome. If someone has to review their positions here, those are not the residents of Gualeguaychú, not until today.

Because as it is now clearly visible, what was and is at stake is the legitimation of a way to advance with the model and the relationship of forces does not allow to resort to soft positions, that is, positions that do not reach to affect concrete, material interests and political: because there is, in any case, the effectiveness of the action of social groups. We could hardly ask the residents of Andalgalá to stay at home, ask for an audience with the governor or break their heads devising “new” who knows what methods of struggle, while the mining companies (or the paper mills) advance cruelly and calculatedly. implementation of a planned and politically agreed prospective.

Will coexistence with Botnia have to be assumed as a fait accompli and discuss other aspects? Will the struggle and environmental claims of Gualeguaychú become a more generic plane? Will it be justified to keep vigil so that this virtual triumph of the technological model, exogenous and polluting does not spread supported by a possible good performance? The questions that are open are varied.

Something, however, has not changed, the presence of the Botnia plant is the manifestation of a production model that not only does not contribute to the development of the country, but, at the expense of our heritage, only serves to enrich countries and groups economists who came to these latitudes precisely because here they find tax advantages and lower environmental demands. The Court ratified, within the framework of liberal legality, this strategy. From the point of view and environmental militancy, it is only possible to continue demanding a change of logic, even within the scheme of current national and international law, but the Argentine and Uruguayan governments now have the option of simply abiding by a convenient ruling and kicking possible consequences or assume a public responsibility and a state role ranking in the actions, the environmental protection that has already been enshrined in the laws, ultimately complying with the law, and not only in the case of Botnia, but in all the processes and undertakings that put our environment and our people at risk, so that it is not tax laxity and environmental irresponsibility, which attracts investors, moving or extending the benefit of legal security, also to those of us who are legitimate and original owners of the right over resources of our territory.

Pablo Sessano


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