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In April the International Court of Justice (ICJ), the principal judicial organ of the United Nations, was seised of a new environmental case, brought by Ecuador against Colombia.

Around a dozen cases involving environmental issues have been brought to the ICJ since it was established in 1945. The most well known include the Nuclear Test Cases (1974 and 1995), Nauru Case (1993), the Nuclear Weapons Advisory Opinion (1996) and the Danube Dam Case (1997).

Despite the importance of some of these decisions, overall environmental cases have never dominated the ICJ's docket. Indeed the 1993 Chamber for Environmental Disputes established within the Court has never been used, and in 2006 the Court decided to cease the usual practice of holding annual elections for the Chamber’s membership.

Although the Environmental Chamber remains empty of litigants (and judges), the Court in plenary has recently been called upon to decide two significant and controversial environmental cases. In 2006 Argentina commenced proceedings against Uruguay in relation to the construction of paper pulp mills on the River Uruguay. The Court turned down Argentina's request for provisional measures in 2007, in a brief judgment that paid limited regard to the apparent environmental effects of Uruguay's pulp mills. We now await a decision on the merits, which could be the most significant international decision on the protection of freshwater ecosystems since the Danube Dam Case.

And now the ICJ also has Ecuador's case, the first transboundary pollution dispute ever to be brought before the ICJ. It concerns aerial spraying by Colombia of toxic herbicides near the border with Ecuador as part of efforts to control illicit coca and poppy plantations in frontier areas. Ecuador alleges that the spraying is having a range of negative health and environmental effects in its territory, and is also damaging economically important crops and affecting local indigenous peoples.

Ecuador's application to the ICJ is the perfect model of a pleading, as it sticks to the facts and does not stray into an account of the legal basis for Ecuador's complaint. However we can make some educated guesses as to Ecuador's argument as the law is well settled, as a result of the Trail Smelter Arbitration (1938 and 1941) - which is the only other example of an international adjudication of a transboundary pollution case - and subsequent efforts to codify and develop the celebrated dictum from that case:

[N]o state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein when the case is of serious consequence and the injury is established by clear and convincing evidence.

Ecuador's application is interesting for the weight it places on ecological concerns. It is noted that Ecuador is an undisputed global biodiversity hotspot - containing a disproportionate share of the world's biodiversity. Much of Ecuador has been identified as one of 34 global biodiversity hotspots by Conservation International.

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