Audience publique tenue le lundi 21 septembre 2009, à 10 heures, au Palais de la Paix, sous la présidence de M. Tomka, vice-président, faisant fonction de président en l'affaire relative à des Usines

Document Number
135-20090921-ORA-01-00-BI
Document Type
Number (Press Release, Order, etc)
2009/16
Date of the Document
Bilingual Document File
Bilingual Content

Non-Corrigé
Uncorrected

CR 2009/16

Cour internationale International Court
de Justice of Justice

LAAYE THHEGUE

ANNÉE 2009

Audience publique

tenue le lundi 21 septembre 2009, à 10 heures, au Palais de la Paix,

sous la présidence de M. Tomka, vice-président,

faisant fonction de président

en l’affaire relative à des Usines de pâte à papier sur le fleuve Uruguay
(Argentine c. Uruguay)

________________

COMPTE RENDU

________________

YEAR 2009

Public sitting

held on Monday 21 September 2009, at 10 a.m., at the Peace Palace,

Vice-President Tomka, Acting President, presiding,

in the case concerning Pulp Mills on the River Uruguay
(Argentina v. Uruguay)

____________________

VERBATIM RECORD
____________________ - 2 -

Présents : M. Tomka, vice-président, faisant fonction de président en l’affaire
KoMroMa.

Al-Khasawneh
Buergenthal
Simma
Abraham

Keith
Sepúlveda-Amor
Bennouna
Skotnikov

Crinçade
Yusuf
Grejugesood,
BeTroresz.

juiesesa, ad hoc

Mme de Saint Phalle, greffier adjoint

⎯⎯⎯⎯⎯⎯ - 3 -

Present: Vice-President Tomka, Acting President
Judges Koroma

Al-Khasawneh
Buergenthal
Simma
Abraham

Keith
Sepúlveda-Amor
Bennouna
Skotnikov

Cançado Trindade
Yusuf
Greenwood
Judges ad hoc TorresBernárdez

Vinuesa

Deputy-Registrar de Saint Phalle

⎯⎯⎯⎯⎯⎯ - 4 -

Le Gouvernement de la République argentine est représenté par :

S. Exc. Mme Susana Ruiz Cerutti, ambassadeur, conseiller juridique du ministère des relations
extérieures, du commerce international et du culte,

comme agent ;

S. Exc. M. Horacio A. Basabe, ambassadeur, directeur général de l’Institut du service extérieur de
la nation, ancien conseiller juridique du ministère des relations extérieures, du commerce
international et du culte, membre de la Cour permanente d’arbitrage,

S. Exc. M. Santos Goñi Marenco, ambassadeur de la République argentine auprès du Royaume des
Pays-Bas,

comme coagents ;

M.AlainPellet, professeur à l’Université Paris Ouest, Nanterre-La Défense, membre et ancien
président de la Commission du droit internatio nal, membre associé de l’Institut de droit
international,

M. Philippe Sands QC, professeur de droit internatio nal au University College de Londres, avocat,
Matrix Chambers, Londres,

M. Marcelo Kohen, professeur de droit internationa l à l’Institut de hautes études internationales et
du développement, Genève, membre associé de l’Institut de droit international,

Mme Laurence Boisson de Chazournes, professeur de droit international à l’Université de Genève,

M. Alan Béraud, ministre à l’ambassade de la République argentine auprès de l’Union européenne,
ancien conseiller juridique du ministère des affaires étrangères, du commerce international et du
culte,

M.DanielMüller, chercheur au Centre de droit in ternational de Nanterre (CEDIN), Université de
Paris Ouest, Nanterre-La Défense,

comme conseils et avocats ;

M. Homero Bibiloni, secrétaire d’Etat à l’environnement et au développement durable,

comme autorité gouvernementale ;

M. Esteban Lyons, directeur national du contrôle environnemental du secrétariat à l’environnement
et au développement durable,

M.HowardWheater, docteur en hydrologie de l’ Université de Bristol, professeur d’hydrologie à
l’Imperial College, directeur de l’Imperial College Environment Forum,

M. Juan Carlos Colombo, docteur en océanographie de l’Université de Québec, professeur à la

faculté des sciences et au musée de l’Université de La Plata, directeur du Laboratoire de chimie
environnementale et de biogéochimie de l’Université de La Plata,

M.NeilMcIntyre, docteur en ingénierie envir onnementale, maître de conférences à l’Imperial

College, Londres, - 5 -

The Government of the Republicof Argentina is represented by:

H.E. Ms Susana Ruiz Cerutti, Ambassador, Legal Adviser to the Ministry of Foreign Affairs,
International Trade and Worship,

as Agent;

H.E. Mr. Horacio A. Basabe, Ambassador, Director of the Argentine Institute for Foreign Service,
former Legal Adviser to the Ministry of Fore ign Affairs, International Trade and Worship,
Member of the Permanent Court of Arbitration,

H.E. Mr. Santos Goñi Marenco, Ambassador of the Argentine Republic to the Kingdom of the
Netherlands,

as Co-Agents;

Mr.AlainPellet, Professor at the University of Paris Ouest, Nanterre-La Défense, member and
former Chairman of the International Law Co mmission, associate member of the Institut de
droit international,

Mr. Philippe Sands QC, Professor of International Law at the University College London, Barrister
at Matrix Chambers, London,

Mr.MarceloKohen, Professor of International Law at the Graduate Institute of International and
Development Studies, Geneva, associate member of the Institut de droit international,

Ms Laurence Boisson de Chazournes, Professor of International Law at the University of Geneva,

Mr.AlanBéraud, Minister at the Embassy of the Argentine Republic to the European Union,
former Legal Adviser to the Ministry of Foreign Affairs, International Trade and Worship,

Mr. Daniel Müller, Researcher at the Centre de droit international de Nanterre (CEDIN), University

of Paris Ouest, Nanterre-La Défense,

as Counsel and Advocates;

Mr. Homero Bibiloni, Federal Secretary of Environment and Sustainable Development,

as Governmental Authority;

Mr.EstebanLyons, National Director of Environm ental Control, Secretariat of Environment and
Sustainable Development,

Mr. Howard Wheater, PhD in Hydrology at Bristol University, Professor of Hydrology at Imperial

College and Director of the Imperial College Environment Forum,

Mr. Juan Carlos Colombo, PhD in Oceanography at the University of Québec, Professor at the
Faculty of Sciences and Museum of the National University of La Plata, Director of the

Laboratory of Environmental Ch emistry and Biogeochemistry at the National University of
La Plata,

Mr.NeilMcIntyre, PhD in Environmental Engineering, Senior Lecturer in Hydrology at Imperial

College London, - 6 -

Mme Inés Camilloni, docteur en sciences atmosphériques, professeur de sciences atmosphériques à
la faculté des sciences de l’Université de Buenos Aires, maître de recherche au conseil national

de recherche (CONICET),

M.GabrielRaggio, docteur en sciences techni ques de l’Ecole polytechnique fédérale de
Zürich (ETHZ) (Suisse), consultant indépendant,

comme conseils et experts scientifiques ;

M.HolgerMartinsen, ministre au bureau du conseiller juridique du ministère des affaires

étrangères, du commerce international et du culte,

M. Mario Oyarzábal, conseiller d’ambassade, bureau du conseiller juridique du ministère des
affaires étrangères, du commerce international et du culte,

M.FernandoMarani, secrétaire d’ambassade, amb assade de la République argentine au Royaume
des Pays-Bas,

M.GabrielHerrera, secrétaire d’ambassade, bureau du conseiller juridique du ministère des

affaires étrangères, du commerce international et du culte,

MmeCynthiaMulville, secrétaire d’ambassade, bureau du conseiller juridique du ministère des
affaires étrangères, du commerce international et du culte,

Mme Kate Cook, avocat, Matrix Chambers, Londres, spécialisée en droit de l’environnement et en
droit du développement,

Mme Mara Tignino, docteur en droit, chercheur à l’Université de Genève,

M.MagnusJeskoLanger, assistant d’enseignement et de recherche, Institut de hautes études
internationales et du développement, Genève,

comme conseillers juridiques.

Le Gouvernement de l’Uruguay est représenté par :

S. Exc. M. Carlos Gianelli, ambassadeur de la République orientale de l’Uruguay auprès des

Etats-Unis d’Amérique,

comme agent ;

S. Exc. M. Carlos Mora Medero, ambassadeur de la République orientale de l’Uruguay auprès du

Royaume des Pays-Bas,

comme coagent ;

M.AlanBoyle, professeur de droit international à l’Université d’Edimbourg, membre du barreau
d’Angleterre,

M. Luigi Condorelli, professeur à la faculté de droit de l’Université de Florence,

M.LawrenceH.Martin, cabinet Foley Hoag LLP, membre du barreau de la Cour suprême des
Etats-Unis d’Amérique, du barreau du district de Columbia et du barreau du Commonwealth du
Massachusetts, - 7 -

MsInésCamilloni, PhD in Atmospheric Sciences, Professor of Atmospheric Sciences at the
Faculty of Sciences of the University of Bue nos Aires, Senior Researcher at the National

Research Council (CONICET),

Mr.GabrielRaggio, Doctor in Technical Scienc es of the Swiss Federal Institute of Technology
Zurich (ETHZ) (Switzerland), Independent Consultant,

as Scientific Advisers and Experts;

Mr.HolgerMartinsen, Minister at the Office of the Legal Adviser, Ministry of Foreign Affairs,

International Trade and Worship,

Mr.MarioOyarzábal, Embassy Counsellor, Office of the Legal Adviser, Ministry of Foreign
Affairs, International Trade and Worship,

Mr. Fernando Marani, Embassy Secretary, Embassy of the Argentine Republic in the Kingdom of
the Netherlands,

Mr. Gabriel Herrera, Embassy Secretary, Office of the Legal Adviser, Ministry of Foreign Affairs,

International Trade and Worship,

Ms Cynthia Mulville, Embassy Secretary, Office of the Legal Adviser, Ministry of Foreign Affairs,
International Trade and Worship,

MsKateCook, Barrister at Matrix Chambers, London, specializing in environmental law and law
relating to development,

Ms Mara Tignino, PhD in Law, Researcher at the University of Geneva,

Mr.MagnusJesko Langer, teaching and research assistant, Graduate Institute of International and
Development Studies, Geneva,

as Legal Advisers.

The Government of Uruguay is represented by:

H.E. Mr. Carlos Gianelli, Ambassador of the Eastern Republic of Uruguay to the United States of

America,

as Agent;

H.E. Mr. Carlos Mora Medero, Ambassador of the Eastern Republic of Uruguay to the Kingdom of

the Netherlands,

as Co-Agent;

Mr.AlanBoyle, Professor of International Law at the University of Edinburgh, Member of the
English Bar,

Mr. Luigi Condorelli, Professor at the Faculty of Law, University of Florence,

Mr. Lawrence H. Martin, Foley Hoag LLP, Member of the Bars of the United States Supreme
Court, the District of Columbia and the Commonwealth of Massachusetts, - 8 -

M. Stephen C. McCaffrey, professeur à la McGeorge School of Law de l’Université du Pacifique,
Californie, ancien président de la Commission du droit international et rapporteur spécial aux

fins des travaux de la Commission relatifs aux cours d’eau internationaux,

M. Alberto Pérez Pérez, professeur à la faculté de droit de l’Université de la République,
Montevideo,

M.PaulS.Reichler, cabinet Foley Hoag LLP, membre du barreau de la Cour suprême des
Etats-Unis d’Amérique et du barreau du district de Columbia,

comme conseils et avocats ;

M. Marcelo Cousillas, conseiller juridique à la direction nationale de l’environnement, ministère du
logement, de l’aménagement du territoire et de l’environnement de la République orientale de
l’Uruguay,

M. César Rodriguez Zavalla, chef de cabinet au ministère des affaires étrangères de la République
orientale de l’Uruguay,

M.CarlosMata, directeur adjoint des affaires juri diques au ministère des affaires étrangères de la
République orientale de l’Uruguay,

M. Marcelo Gerona, conseiller à l’ambassade de la République orientale de l’Uruguay au Royaume

des Pays-Bas,

M. Eduardo Jiménez de Aréchaga, avocat, admis au barreau de la République orientale de
l’Uruguay et membre du barreau de New York,

MA. damKahn, cabinet Foley Hoag LLP, membre du barreau du Commonwealth du
Massachusetts,

M.AndrewLoewenstein, cabinet Foley Hoag LLP, membre du barreau du Commonwealth du
Massachusetts,

MmeAnaliaGonzalez, LLM, cabinet Foley Hoag LLP, admise au barreau de la République

orientale de l’Uruguay,

Mme Clara E. Brillembourg, cabinet Foley Hoag LLP, membre des barreaux des districts de
Columbia et de New York,

MmeCicelyParseghian, cabinet Foley Hoag LLP, membre du barreau du Commonwealth du
Massachusetts,

M. Pierre Harcourt, doctorant à l’Université d’Edimbourg,

M. Paolo Palchetti, professeur associé à la faculté de droit de l’Université de Macerata,

comme conseils adjoints ;

Mme Alicia Torres, directrice nationale de l’environneme nt au ministère du logement, de
l’aménagement du territoire etde l’environnement de la République orientale de l’Uruguay,

M.EugenioLorenzo, conseiller technique à la direction de l’envir onnement du ministère du
logement, de l’aménagement du territoir e et de l’environnement de la Ré publique orientale de
l’Uruguay, - 9 -

Mr.StephenC.McCaffrey, Professor at the McGeorge School of Law, University of the Pacific,
California, former Chairman of the Interna tional Law Commission and Special Rapporteur for

the Commission’s work on international watercourses,

Mr.AlbertoPérezPérez, Professor at the Faculty of Law of the University of the Republic,
Montevideo,

Mr.PaulS.Reichler, Foley Hoag LLP, Member of the Bars of the United States Supreme Court
and the District of Columbia,

as Counsel and Advocates;

Mr. Marcelo Cousillas, Legal Counsel at the Nationa l Directorate for the Environment, Ministry of
Housing, Territorial Planning and Environment of the Eastern Republic of Uruguay,

Mr.CésarRodriguezZavalla, Chief of Cabinet, Ministry of Foreign Affairs of the Eastern
Republic of Uruguay,

Mr.CarlosMata, Deputy Director of Legal Affair s, Ministry of Foreign Affairs of the Eastern

Republic of Uruguay,

Mr.MarceloGerona, Counsellor of the Embassy of the Eastern Republic of Uruguay in the
Kingdom of the Netherlands,

Mr. Eduardo Jiménez de Aréchaga, Attorney at law, admitted to the Bar of the Eastern Republic of
Uruguay and Member of the Bar of New York,

Mr. Adam Kahn, Foley Hoag LLP, Member of the Bar of the Commonwealth of Massachusetts,

Mr.AndrewLoewenstein, Foley Hoag LLP, Member of the Bar of the Commonwealth of
Massachusetts,

MsAnaliaGonzalez, LLM, Foley Hoag LLP, adm itted to the Bar of the Eastern Republic of
Uruguay,

MsClaraE. Brillembourg, Foley Hoag LLP, Member of the Bars of the District of Columbia and

New York,

MsCicelyParseghian, Foley Hoag LLP, Me mber of the Bar of the Commonwealth of
Massachusetts,

Mr. Pierre Harcourt, PhD Candidate, University of Edinburgh,

Mr. Paolo Palchetti, Associate Professor at the School of Law, University of Macerata,

as Assistant Counsel;

Ms Alicia Torres, National Director for the Environment at the Ministry of Housing, Territorial

Planning and Environment of the Eastern Republic of Uruguay,

Mr.EugenioLorenzo, Technical Consultant for the National Directorate for the Environment,
Ministry of Housing, TerritorialPlanning and Environment ofthe Eastern Republic of Uruguay, - 10 -

M.CyroCroce, conseiller technique à la direction de l’environnement du ministère du logement, de

l’aménagement du territoire etde l’environnement de la République orientale de l’Uruguay,

Mme Raquel Piaggio, bureau de la gestion des eaux (O.S.E.), consultante technique à la direction de
l’environnement du ministère du logement, de l’aménagement du territoire et de l’environnement

de la République orientale de l’Uruguay,

M.CharlesA.Menzie, PhD., Principal Scientist et directeur d’EcoSciences Practice chez Exponent,
Inc., à Alexandria, Virginie,

st
M. Neil McCubbin, Eng., Bsc. (Eng), 1 Class Honours, Glasgow, Associate of the Royal College of
Science and Technology, Glasgow,

comme conseillers scientifiques et experts. - 11 -

Mr. Cyro Croce, Technical Consultant for the National Directorate for the Environment, Ministry of
Housing, Territorial Planning and Enviro nment of the Eastern Republic of Uruguay,

Ms Raquel Piaggio, Water Management Administration ⎯ O.S.E. ⎯ Technical Cons ultant for the
National Directorate for the Environment, Mini stry of Housing, Territorial Planning and
Environment of the Eastern Republic of Uruguay,

Mr. Charles A. Menzie, PhD., Principal Scientist and Director of the EcoSciences Practice at
Exponent, Inc., Alexandria, Virginia,

Mr. Neil McCubbin, Eng., BSc. (Eng), 1st Class Honours, Glasgow, Associate of the Royal College
of Science and Technology, Glasgow,

as Scientific Advisers and Experts. - 12 -

Le VICE-PRESIDENT, faisant fonction de président : Veuillez vous asseoir. L’audience est

ouverte. La Cour se réunit aujourd’hui pour en tendre le premier tour de plaidoiries de la

République orientale de l’Uruguay. Celle-ci achèvera son premier tour de plaidoiries à la séance

qui se tiendra le jeudi 24 septembre entre 10 heures et 13 heures. I shall now give the floor to His

Excellency Ambassador Carlos Gianelli, Agent of Uruguay to make his introductory statement.

You have the floor, Sir.

GMIr.NELLI:

I.INTRODUCTION

1. Mr.President and Members of the Court, it is an honour for me to appear before this

distinguished tribunal, and a great privilege to act as the Agent of Uruguay in these proceedings.

2. I want to begin by expressing, on behalf of our delegation, the grief at the absence of our

principal Agent, whose unexpected health problems forced him to remain in Montevideo. I also

extend my appreciation to my counterpart, Ambas sador Ruiz Cerutti, for her expression of concern

for Ambassador Gros Espiell, and assure her that her best wishes have been conveyed to him.

3. Mr.President, this is a sad episode in the historically close relations between Argentina

and Uruguay. We regret that our two friendly countries now confront each other in a way that

neither Uruguayans nor Argentinians could have ev er imagined. But today, the sadness I and all

Uruguayans feel is compounded by the excessive la nguage that Argentina used throughout last

week’s presentations, in which it portrayed Uruguay as nothing short of an international outlaw.

Nevertheless, Uruguay is pleased to have this opportunity to respond fully and openly to

Argentina’s unsupported case against us. As the distinguished counsel and advocates who follow

me to the podium will demonstrate, based on th e evidence and the law as they truly are, Uruguay

did not and has not violated the 1975 Statute on the River Uruguay in any respect.

II.INTERNATIONAL CO -OPERATION AND GOOD NEIGHBORLINESS

4. Mr. President, Members of the Court, Argentina has tried to portray our country as wholly

indifferent to the 1975Statute. It was said that Uruguay “behaves as if the 1975Statute does not

exist”. In fact, Uruguay attaches tremendous impor tance to the Statute, not least because it is - 13 -

instrumental in helping to protect us in our relationship with our much bigger and more

economically developed neighbour.

5. Because of its much larger territory, population, agriculture and industry, it is

Argentina ⎯ not Uruguay ⎯ that makes by far the greatest use of the Uruguay river with its

related environmental consequences. The 1975 Statute is sacred to Uruguay because it guarantees

our country its right to be protected from po llution and harmful environmental effects by

Argentina, as well as its right to the equitable utilization of the river.

6. In reviewing the transcripts of last week ’s proceedings, I was struck by the gap between

the facts and the way in which Argentina tried to portray them to the Court. After hearing so very

many words from Argentina, I hope the Court will find it useful to examine the actual evidence.

7. In its presentations last Thursday (CR 2009/ 15), Argentina not so subtly suggested to the

Court that unless it takes strong action against the Botnia plant, it will be responsible for setting the

cause of international environmental law back deca des. Argentina has offered the Court a false

choice, Mr. President. I say that not just because Ur uguay thinks it is right. I say that because the

evidence tells us that. One of th e remarkable features of this case is that, in the end, you do not

need to choose between what Uruguay says and what Argentina says.

8. The present case differs from the great majority of cases before this Court, where the

parties base their allegations on evidentiary materi als that they have prepared especially for the

case. In this one, you have before you multiple re ports prepared by the independent environmental

consultants engaged by the Inte rnational Finance Corporation of the World Bank that clearly

establish that the Botnia mill is operating to the hi ghest international standards in all respects, and

that it is not polluting the Uruguay river.

9. The reports to which I refer are also a complete answer to Argentina’s heavy-handed

attempts to suggest that the Botnia plant could not have been built in Europe, in North America, or

in other developed countries. As those reports make clear, it could have been. The plant we are

here talking about is as good as the best mills in Europe. No qualifications. If Argentina is

wondering why the plant was built in Uruguay, perhaps it needs only recall that a eucalyptus tree

grows at least three times faster in our region than it does in Europe. - 14 -

10. Mr.President, Argentina’s decision in early 2006 to suspend all monitoring of water

quality contradicts the general principles of co-operation and good neighbourliness and the

provisions of the 1975 Statute, as recognized by this Court in its July 2006 Order. Instead of going

through CARU to monitor the river as the Statute provides, we learned for the first time on 30 June

this year that Argentina spent two years secretly conducting its own unilateral study.

III. EVIDENCE PRESENTED BY A RGENTINA

11. Mr. President, last week you heard a lot about the phenomenon of reverse flow. You

heard over and over again how much it happens, a nd more particularly that Uruguay supposedly

never took account of it or consulte d with Argentina about it. Mr.President, such allegations are

totally unfounded. The fact is, and the eviden ce shows, that Uruguay did take into account the

hydrodynamic characteristics of the river, including reverse flow episodes. It also incorporated that

fact into its modelling of the dispersal of Botnia ’s effluents. And it shared that modelling with

Argentina at the high level technical group (GTAN) consultations that took place in

November 2005, four years ago, and was accepted. That is what the eviden ce in the record, some

of it from Argentina no less, actually tells us. The truth is that Uruguay understood this issue

perfectly, explained it fully to Argentina in 2005, and it got it right.

12. You heard much the same thing about wind. Counsel for Argentina told you that

Uruguay again either misunderstood or failed to in form itself about the basic wind dynamics in the

region, and failed to consult on the matter with Argentina. Here, too, Argentina’s argument goes in

the opposite direction from the evidence. In the days to come, Uruguay’s counsel will show that

not only did Uruguay consider the wind issue, it got it right and shared its views with Argentina

long before the Botnia plant was ever built.

13. As much as you heard last week from Ar gentina’s counsel, one thing you did not hear

much about was the water quality standards adopt ed by both countries in CARU. These are the

water quality standards Argentina and Uruguay have pr omised each other to meet. They are thus

the law between the Parties on this issue. In a case on environmental pollution, one might

reasonably expect to hear what the applicable standards have to say. You did not, and the reason is - 15 -

simple: the Botnia plant has not caused any exceed ing of the CARU water quality standards in the

22 months it has been operating.

14. Instead, Mr.President, we heard many times that there was an “unprecedented” algal

bloom in February2009 allegedly caused by the pl ant, that there were nonylphenols and lindane,

and dioxins and furans among other substances. Once again, Argentina has its facts wrong, and

demonstrably so. The algal bloom was not caused by the Botnia mill. In fact, algal blooms are

common during the summer months, and this one appears to have started well upstream from the

plant beyond what even Argentina claims is Botnia’s reach, from where it was transported

downstream and washed away into the ocean.

15. With respect to dioxins and furans, their levels are so low that they are beyond the ability

of modern technology to detect. Although perhap s these substances were once an issue with pulp

mills in eras past, it is not the case of this high technology mill. Argentina has not found any in the

water of the river, only in sediments from ÑandubaysalBay, which Argentina acknowledges is

unaffected by effluents from Botnia.

16. The answer on nonylphenols and lindane is ev en simpler. Botnia does not use either in

any part of its processes. Lindane has been ba nned in Uruguay for many years. However, in

Argentina, both are still widely used in agriculture ⎯ in the case of lindane ⎯ and agriculture and

industry ⎯ in the case of nonylphenols. So, Mr. President, therefore their source is Argentina, not

Botnia.

17. The construction and operation of the Botn ia pulp mill is fully consistent with all

applicable environmental laws a nd regulations, as the results of a comprehensive monitoring plan

will evidence to the Court this week. In addition, those results confirm the predictions made by the

environmental impact assessment under DINAMA’s direction, before even a preliminary

environmental authorization was issued. It is for these reasons that the choice between the

protection of the environment and the maintenance of the operations of the Botnia plant is a false

one. - 16 -

IV. P ROCEDURAL COMPLIANCE

18. Mr.President, in addition to arguing that Uruguay had entirely disregarded its

obligations to protect and preserve the environment, Argentina also spent a lot of time last week

arguing that Uruguay breached its procedural obligations under the Statute. Mr.President,

Uruguay did not.

19. I must say that I was greatly surprised by Argentina’s assertion that Uruguay never

shared information with or consulted with it. In fact, Uruguay provided a massive amount of

information about the plants and the receptor enviro nment to Argentina, not only before the Botnia

plant started operating, but before serious cons truction activities even began. Mr.President, I

cannot resist asking Argentina:if not consulti ng, what is it that its officials were doing for

sixmonths in 2005 and 2006 when they met 12ti mes with Uruguayan counterparts to exchange

information and views under the auspices of GTAN?

V. E XTRAJUDICIAL COERCIVE MEASURES

20. As the Court is aware, a group of Argentine citizens has been blockading the main

international transit route between Argentina and Uruguay, the GeneralSanMartinBridge, since

this case began more than three years ago. Th ese blockades, which have been openly tolerated by

the Government of Argentina and have caused hundreds of millions of dollars in economic harm to

Uruguay, constitute an attempt to force Uruguay to stop activities at the Botnia plant. This was the

subject of Uruguay’s provisional measures request in December 2006. At that time, the award of

an ad hoc Mercosur Arbitration Tribunal had already est ablished that Argentina’s tolerance for the
1
blockades violated its duties under the Treaty of Asunción .

21. Nonetheless, the blockade continues to this day. Argentina, in open defiance of the

Mercosur tribunal, in disregard of the principle of good neighbourliness, and in contravention of

other principles of international law, continues to to lerate it. For example, recently, the Senate of

Arbitral award of ad hoc tribunal of Mercosur, constituted to hear the dispute submitted by the Oriental Republic
of Uruguay versus the Argentine Republic on “Omission ofArgentine State to adopt su itable measures to prevent
and/or eliminate the impediments to free circulation stemming from the blocking of the access roads to international
bridges Gral. San Martín and Gral. Artigas in Argentine territory, which connect the Argentine Republic with the Oriental
Republic of Uruguay, 6Sep.2006, IVDecision, No.2 in Annex2 of provisional measures submitted by Uruguay,
N0o2v0.06 and also available at http://www.mercosur.org.uy/innovaportal/innovaportal.GetHTTPFile/
Laudo%20de%20Cortes%20de%20Ruta%20-%20ES.pdf?contentid=375&version=1&filename=
Laudo%20de%20Cortes%20de%20Ruta%20-%20ES.pdf (last visited 1 Sep. 2009). - 17 -

EntreRíos unanimously currently passed a bill declaring them an “historical and cultural

landmark”.

22. Mr. President, most probably, the long and rich history of this Court does not record any

case where a litigant country has allowed its provincial government, allied to a group of citizens, to

exercise extrajudicial measures to attempt to co erce the other party regarding the issues being

litigated before the Court. Uruguay will never allo w itself to be coerced in this manner, or to

abandon the defence of its right to sustainable development guaranteed by the 1975Statute.

Ultimately, these illegal measures, from the beginning of this proceeding, have served only to

exacerbate the dispute between the two countries. Uruguay submits that Argentina’s tolerance to

this matter cannot be reconciled with the Court’ s Order of 13July2006, in which “the Court

further encourages both Parties to refrain from an y actions which might render more difficult the

resolution of the present dispute” ( Pulp Mills on the River Uruguay (Argentina v. Uruguay),

Provisional Measures, Order of 13 July 2006, I.C.J. Reports 2006, p. 134, para. 82).

23. Mr. President, following me to the podium today will be Professor Alan Boyle who will

show that the Botnia plant has not caused any harm to the Uruguay river or its aquatic life since it

began operating in November 2007.

24. Mr. President, I now invite you to call Professor Boyle to the podium. Thank you very

much.

The VICE-PRESIDENT, Acting President: Thank you, HE isxcellency

Ambassador Gianelli, for your statement. I shall now give the floor to Professor Alan Boyle. You

have the floor, Sir.

BMOr. LE:

I.T HE PERFORMANCE OF THE PLANT

1. Mr. President, Members of the Court, it is an honour and a privilege to appear before you

once more on behalf of the Oriental Republic of Uruguay. My task this morning is straightforward:

to set out the evidence that sustains Uruguay’s case on environmental protection and to show that

the Botnia plant has lived up to the commitmen ts which Uruguay made under the 1975 Statute and - 18 -

under its own Constitution. Despite what you were told by Professor Sands last week ⎯ and I pay

tribute to his powerful and determined advocacy ⎯ Argentina’s case is just as weak today as it was

in 2006.

2. The evidence you will hear this week show s that the Botnia pulp mill has exceeded the

high expectations of Uruguay and of the Interna tional Finance Corporation. It has caused no

harmful pollution of the river as defined by the Stat ute. It has not put at risk the ecology or

ecosystem of the river. It meets European technology ⎯ BAT ⎯ standards for pulp mills. It

meets the World Bank’s environmental and social responsibility standards. It complies in every

respect with the water quality and environmental protection standards agreed by both Parties and

set out in the CARU Digest ⎯ and it is truly remarkable that nowhere in Argentina’s presentation

last week was there any reference to those regula tions, no allegation that they have been broken.

The Botnia plant has met these strict standards and it has done so because Uruguay has required it

to do so. In sum, it is the right mill, in the ri ght place, on a river that is more than capable of

sustaining this type of economic development. Its exemplary performance is entirely consistent

with the environmental requirements of the 1975St atute of the River Uruguay, and with all other

applicable international standards. Put simply, Argentina has no case.

3. The Court heard a great deal last week about pollutants, some of them irrelevant to this

case. It heard almost nothing about water quality, or how good it remains, even after the mill has

started to operate. Uruguay’s evidence on this point will be explained in more detail this morning,

2
but the key points are summarized at page ES(iii) of the Third EcoMetrix Report and you will

find this summary at tab 3 in your folder. EcoMetrix is a Canadian environmental engineering and

consulting firm appointed by the International Finance Corporation to advise it on the Botnia

project. All of its reports have been produced for and at the direction of the IFC to specifications

the IFC laid down.

4. Their third report makes three findings that should lay to rest any doubts about the impact

of the Botnia plant. First, EcoMetrix concluded that water quality remains good:

2“Orion Pulp Mill, Uruguay: Independent Performance Monitoring as required by the International Finance
Corporation: Phase 3: Environmental Performance Review 2008 Monitoring Year” ⎯ hereafter referred to as the third

EcoMetrix Report; Uruguay’s Submission of New Documents, 30 June 2009, Ann. S7. - 19 -

“The water quality of the Rio Uruguay is considered to be of high quality since

the concentrations of indicator parameters are well below the most restrictive of the
applicable Uruguayan and CARU standards.”

Secondly, they found that water quality has not changed since the plant started operations:

“A comparison [they say] of the monitoring data pre- and post-commissioning
of the mill shows that water quality of the Rio Uruguay has not changed as a result of
the mill.”

And thirdly, they found no meaningful difference between water quality upstream and water

quality downstream, thus confirming their previous conclusions:

“The water quality between the mill and Fray Bentos is comparable to the water
quality further upstream [they say] . . . , indicating that the mill has not affected water
quality within the Rio Uruguay.”

5. These are not Uruguay’s findings. They are not Botnia’s. They are the conclusions of

IFC-appointed independent experts. They are entitled to great weight and their conclusions,

Uruguay submits, are dispositive. The IFC’s inde pendent validation of the Botnia project is

precisely the sort of evidence to which considerable weight should be given. As this Court has

noted in the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.

Uganda), “evidence obtained” by independent persons “experienced in assessing large amounts of

factual information, some of it of a tec hnical nature, merits special attention” ( Judgment, I.C.J.

3
Reports 2005, p. 201, para. 61) .

II. USES OF THE RIVER AT F RAY B ENTOS

6. The conclusions of the IFC’s experts should come as no surprise to the Court: Uruguay

has the strongest interest in ensu ring that the Botnia plant does not pollute the river or generate

harmful levels of air pollution ⎯ now or in the future. The Uruguay river has provided and will no

doubt continue to provide drinki ng water and recreation for Fray Bentos and other communities

along the river ⎯ that is a resource that Uruguay is hardly likely to put at risk. And contrary to

what Argentina claimed last week, the drinking water inlet for Fray Bentos remains where it has

always been ⎯ downstream from the Botnia plant. There is a reserve inlet pipe located upstream

in case of shipping accidents but it has remained unused since it was installed. IFC monitoring

reports on the quality of the water show that “ the quality of the raw water supply [and they are

The report under consideration was the report of the Port er Commission, which examined persons involved in

the actions at issue in the case. - 20 -

4
referring to Fray Bentos] is unaffected by the discharge from the mill ” . On the map you will see

both the Botnia outlet pipe and the Fray Bentos drinking water inlet. And in the top left hand

corner on the Argentine side you can see the Gualeyguaychú river flowing into Ñandubaysal Bay.

[Fig. 1 ⎯ map.]

7. But the Uruguay river also serves as a vital driver of the region’s economic development.

The new pulp mill is far from being the only source of industrial effluent discharges. On the

Argentine side, Gualeguaychú industrial park is home to some 25factories engaged, among other

5
things, in dyeing, battery manufactur e, and food and beverage processing . At Colon, further

upstream, there is the Fana Quimica chemical plan t, and there are many more Argentine industrial

facilities adjacent to the river in other locations. They all discharge waste water into the river

system 6.

8. Argentina’s own scientific report shows that industries of this kind are a significant source

of many of the substances detected in the river, including the nonylphenols its advocates referred to

last week 7. Far from showing that everything in th e river originates in the Botnia plant,

Argentina’s evidence suggests that many of these substances are a ubiquitous consequence of the

8
growing industrialization of the river .

9. Sewage from the 75,000 residents of Gual eguaychú is similarly discharged into the river

near the Botnia plant and constitutes a major input of phosphorus. The drainage run-off from

hundreds of thousands of hectares of agricultural land and cattle farms will discharge nitrogen and

phosphorus to the river. The soya growers around Gualeyguaychú use nonylphenols in herbicides 9.

No doubt much of that, some of it anyway, ends up in the river.

Third EcoMetrix Report, Uruguay’s S ubmission of New Documents, 30 J une2009, Ann.S7, para.4.6;
emphasis added.

CMU, Vol. X, Ann. 224, p. 40.
6
CMU, para. 2.144.
7
Argentina Scientific and Technical Report, Chap. 3.5, p. 39.
Argentina Scientific and Technical Report, Chap. 3.6.1, p. 44.

J.C.M.Papa, Argentine National Institute of Agricultu ral Technology (INTA), “Evaluation of the activating
capacity on glyphosate of a coadjuvant with a nonylphenol base”, 2002, available at
http://www.inta.gov.ar/oliveros/info/documentos/malezas/artic1.htm (last visited on 20Sept.2009) and “Weeds that are

tolerant of and resistant to herbicides”, 2008, available at
http://www.inta.gov.ar/rafaela/info/documentos/miscelaneas/112/misc112_… (last visited on 2Sept2.009).
Translations included in tab 2 of the judges’ folder. - 21 -

10. The 1975 River Uruguay Statute envisages uses of this kind. Article27 recognizes the

right of each Party to exploit the waters of the river for domestic, sanitary, industrial and

agricultural purposes, in accord ance with the terms of the Statute and the regulations adopted

thereunder by CARU. And lest any Member of the Court is in any doubt, the practice of both

Parties shows that the use of the river for “sanita ry” and “industrial” purposes is intended to allow

sewage and industrial effluent disposal. The importance of this point will be very clear when we

consider the definition of “pollution” later in the week.

11. Both Parties also accept that, in accord ance with general international law, they each

have what the Court has referred to as a “basic right to an equitable and reasonable sharing of the

resources of an international watercourse” ( Gabčíkovo-Nagymaros Project (Hungary/Slovakia),

Judgment, I.C.J. Reports 1997 , p.54, para.78). That equitable right must necessarily include

effluent and sewage disposal. The argument that any discharge of effluent is pollution prohibited

by the Statute is plainly untenable when tested against Article27 and the equitable rights of both

Parties.

III. T HE ALLEGED SENSITIVITY OF THE RIVER AT FRAY BENTOS

12. Now let me move to the alleged sensitivity of the river at Fray Bentos. Fray Bentos is

the right place for a mill of this type and size. Argentina presents a very misleading picture of the

flow of the river and its capacity to dilute effl uent discharged at Fray Bentos. The River Uruguay

really is a very large river ⎯ it is one of the 25 biggest in the world. Averaging over 6,230 m 3/s at

Fray Bentos 10, it is very considerably larger than an y river in Europe, except the Danube and the

11
Volga . Even the mighty Rhine at its largest point only manages 40percent of the Uruguay

river’s flow at Fray Bentos 12. The average flow of the Vistula is 1000 m /s, of the Elbe 877 m /s, 3

3 13
and of the Seine only 410 m /s. All of these rivers host pulp mills . Even if we accept

1See Exponent, Response to the Government of Argentin a’s Reply, pp. 5-9 (hereafter “Exponent Report”). RU,
Vol. IV, Ann. R83.

1S.A.Schumm and B.R.Winkley (eds.), The Variability of Large Alluvial Rivers, ASCE, 1994.

1Technische Universitat Dresden, http://intranet.floodmaster.de/wiki/rhine_river.
13
See Exponent Report, p3.5-9. RU, Vol.IV, Ann. R83. The figure given there for the Elbe
should read 877 /s United Nations Envi ronment Program 2008,
http://www.grid.unep.ch/product/publication/freshwater_europe/elbe.php. - 22 -

3
Argentina’s figure of 440 m /s for the most extreme low flow conditions, the River Uruguay would

still be a large river, more than large enough for a pulp mill.

13. My colleague Mr.McCubbin will explain to the Court in greater depth why the river’s

substantial flow can indeed handle the volume of effluents discharged by the mill, even at low

14
flows . But Professor Sands referred last week to what he called “huge quantities” of pollutants.

In fact the quantity of effluent is small compared to the volume of the river itself, and compared to

the amount of nutrients coming in to the river from other sources. The total volume of effluents is

meaningful only in context. The important point when comparing capacity to handle effluents is

that a bigger river can handle a bigger plant.

14. Argentina’s arguments on reverse flow at Fray Bentos are simply wrong. Contrary to

Argentina’s assertions, Uruguay modelled reverse flow and low flow comprehensively, before it

approved the siting of the plant 15. Its assumptions on reverse flow were if anything even more

conservative that Argentina’s. Uruguay did not ge t this wrong. The river’s flow characteristics,

and its ability to flow in both directions, were well known and taken fully into account in the

permitting process. No significant harm was pred icted even at low flow. Uruguay’s evidence

shows no such harm, nor does Argentina’s. Argen tina’s main arguments on the siting of the plant

is thus as erroneous as their data is misleading. But Mr. Reichler will deal with all of these points

in more detail later this morning.

15. Nor is the river too sensitive at Fray Bent os to deal with the volume of phosphorus and

other effluents discharged at this point. Th e evidence shows that Uruguay quite reasonably

concluded after extensive environmental assessments that this type of plant located at Fray Bentos

would not harm the river or existing uses of the ri ver on both sides. This was also the conclusion

of the International Finance Corporation ⎯ indeed, based on expert reports, they found that the site

16
was suitable for two pulp mills . Professor Kohen’s argument that the choice of site is neither

optimal nor reasonable necessarily assumes significant harm. As the remainder of my speech and

14
Final CIS, pp. 4.48, 4.49 & 4.54-4.57. CMU, Vol. VIII, Ann. 173.
15
CR 2009/16 (Reichler).
16Final CIS, CMU, Vol. VIII, Anns. 173-178. - 23 -

most of Mr.Reichler’s will show, the evidence points overwhelmingly to the conclusion that

Professor Kohen is wrong. The plant has caused no such harm and is most unlikely to do so.

16. It is also quite wrong to suggest, as coun sel did last week, that the river has reached a

“tipping point”, or that Uruguay has displayed “gross environmental reck lessness”. The evidence

shows quite the opposite ⎯ that Uruguay has behaved prudently, diligently, and successfully in

assessing the risk and preventing pollution from the Bo tnia plant. Let me then summarize for the

Court the essential points of Uruguay’s environmental case, before I review the evidence Uruguay

has put before you.

17. Put simply ⎯ but the detail will certainly follow ⎯ the case you will hear today is that

there has been no failure by Uruguay to comply with CARU water qua lity and environmental

protection standards, or with any other applicable instruments. On Wednesday I will argue that if

there is no breach of these standards, there is no harmful pollution as defined by the Statute. If

there is no harmful pollution, the plant cannot have caused significant harm to the river’s ecology

or to Argentina, and it will pose no risk of signi ficant harm. If there is no significant harm and no

significant risk, there can be no breach of the environmental articles of the 1975Statute. And if

there is no breach of the Statute, however broadly construed, Argentina has no case on

environmental harm, or on the siting of the plant.

IV. U RUGUAY S EVIDENCE

18. So let me then turn to Uruguay’s evidence. Mr. President, Members of the Court, there

has been extensive monitoring of the river, and of the plant, before operations began, and

subsequently. In addition to the Environmental Impact Assessment carried out during DINAMA’s

evaluation of the Botnia permit application, the Court will no doubt recall the two further

assessments ⎯ the so-called Cumulative Impact Study, or CIS, and the Final Cumulative Impact

Study ⎯ that were prepared at the direction of the International Finance Corporation before the

plant was authorized to operate. The Final CIS is a much revised and expanded study undertaken

by EcoMetrix, which was brought in in order to revise the original study following criticism of the

earlier report by the IFC ombudswoman. It was completed a full year before DINAMA authorized

the plant to commence operations and it fully supported that decision. - 24 -

19. In November 2007, just before the plant started up, two more reports were prepared for

17
the IFC by what were termed “independent external consultants” ⎯ EcoMetrix again, and

AMEC, an international engineering firm with extensive experience of pulp mills and pollution

control. These are the only independent experts who looked at the Botnia plant in detail.

EcoMetrix found that the monitoring programme is “extremely comprehensive and exceeds the

commitments identified in the CIS” 18. The AMEC report found that: “Modern process

technologies are used that promise to perform w ith low emission and world-leading environmental

19
performance.” Mr. McCubbin will say more about the technology tomorrow.

20. But on the basis of these expert reports the IFC, quite reas onably and properly,

concluded that “Botnia’s Orion pul p mill in Uruguay is ready to operate in accordance with IFC’s

environmental and social requirements and BAT standards” 20. Both of these exacting sets of

requirements were described in detail in Uruguay’ s written pleadings, and I will not repeat them

21
here . But based on these independent reports, the IFC also satisfied itself that “the mill will

comply with IFC and MIGA’s environmental and social policies while” they said “generating

significant economic benefits for the Uruguayan economy” 22: that was their judgment.

21. So there was no lack of independent scrutiny before the plant came into operation. All

the necessary studies had been undertaken and considered by the relevant institutions in Uruguay

and by the IFC before the plant was authorized to operate.

22. And, of course, the assessment and evaluation did not stop there. In July 2008,

EcoMetrix issued a second report for the IFC. This report evaluated the plant’s first six months of

23
operation . According to it there had been “comprehensive monitoring of air and water

emissions” that “provide a detailed characterization of the quantity and quality of the air and water

emissions, and” they said “a direct measure of ope rational efficiency and performance of the mill”.

17
RU, para.4.14. Orion Pulp Mill, Uruguay, Independent Perf ormancing Monitoring as Required by the
International Finance Corporation, Phase 1: Pre-Commissioning Review.
18
Ibid., para. 4.43.
19
Ibid., para. 4.22.
20Ibid., para. 4.15.

21CMU, Chap. 5.

22RU, para. 4.15.
23
Uruguay Independent Performance Monitoring as required by the International Finance Corporation, Phase 2,
6-Month Environmental Performance Review. - 25 -

They also found that the information gathered dur ing the operational monitoring was sufficient, as

they said “to verify that the mill is operating acco rding to authorization limits specified in the

environmental authorization” 24. And they concluded: “After six months of operation, all

indications are that the mill is performing to th e high environmental standards predicted in the EIA

and the CIS, and in accordance with Uruguayan and IFC standards.” 25

23. This intensive monitoring continues today. EcoMetrix produced a third report for the

IFC, which reviews the mill’s environmental performance during the first year of operation, ending

in November 2008. Uruguay’s environment agen cy, DINAMA, has also re ported on the plant’s

26
performance up to May 2009 : and in what follows I will rely heavily on these two reports, since

they give the most up-to-date picture of the reality. You will find the third EcoMetrix Report in

Uruguay’s Supplementary Documents at Annex S7, but there is a summary in your folder at tab 3.

The DINAMA report has also been deposited with the Court in the interests of transparency and

there is, again, a summary in your folder at tab 3.

24. Last week Argentina made various unf ounded criticisms of the Botnia monitoring

régime. Yet the PROCEL scheme for joint mon itoring agreed with Argentina in 2004 was not

nearly as demanding 27. That scheme was designed specifically for the Botnia and ENCE plants.

Since Argentina withdrew from PROCEL, Uruguay has had to make its own arrangements.

Botnia’s emissions, water quality, effects on aqua tic biota and sediments are currently monitored

more frequently, and more comprehensively, than was envisaged under PROCEL. More

28
substances are surveyed now than was previously agreed . It is true that certain chemicals are not

surveyed because they are not used in or produced by Botnia, including nonylphenols and lindane:

but the object of monitoring the plant is to monitor what the Botnia plant adds to the river, not what

it takes from the river.

24RU, para. 4.73.

25Ibid, para. 4.86.
26
DINAMA, Follow-Up Plan Cellulose Plant at Fray Bentos Surface water and sediment quality data report
(Semester January-June 2009); DINAMA July 2009 Water Quality Report, DINAMA Follow-Up Plan Cellulose Plant at
Fray Bentos Air quality re port Semester January-June 2009 ; Semester report of the BOTNIA Emission Control and
Environmental Performance Plan Novemb er 11, 2008- May31,2009; DINAMA Follow-Up Plan Cellulose Plant at
Fray Bentos Surface water and sediment quality data report (Semester January-June 2009). All deposited with the Court.

27CMU, Vol. IV, Ann. 109; RU, Vol. IV, Ann. R89.

28Ibid. - 26 -

25. Also, contrary to Argentina’s assertions last week, collection of baseline data started in

August 2006 29, a full 15months before the plant started operations in November2007 30. Since

then Botnia has monitored and reported on all of the substances on which it is required to report ⎯

and the evidence is in the reports, indeed it provided some of the data used by DINAMA and

EcoMetrix. There is, quite simply, no basis for say ing that Botnia’s monitoring or the monitoring

system as a whole are inadequate.

V. POST OPERATIONAL REPORTS

26. Let us then turn to those post-operational reports, in particular the Third EcoMetrix

31
Report and I would invite you to consider some of its findings in more detail. Based on extensive

monitoring data, that report, fully and without qualification, concludes that the plant’s

environmental performance today is outstanding.

27. As the Court will see, the report provides very clear confirmation that the Botnia plant is

not causing harmful pollution. This is exactly what was predicted by DINAMA and in the IFC’s

environmental impact assessment. The essential points are summarized on pages ES.i and ESii of

the third EcoMetrix Report:

“From this review and to this point in time, all indications are that the mill is
performing to the high environmental standa rds predicted in the EIA and CIS, and in

compliance with Uruguayan and IFC standards. These results are also consistent with
the performance measures for other modern mills.”

28. After reviewing the monitoring results for the six months to May 2009, DINAMA’s most

recent report comes to the same conclusion:

“The environmental performance [they say ] of the BOTNIA plant continued to
comply with the environmental norms in fo rce, the environmental authorizations, and

the criteria 32tablished in the Best Available Techniques (BAT) reference
documents.”

That was DINAMA’s conclusion.

29
Uruguay’s Submission of New Documents, 30 June 2009, Ann. S2.
30
RU, Vol. II, Ann. R6.
3Third EcoMetrix Report, para. 4.6, Uruguay’s Submission of New Documents, 30 June 2009, Ann. S7.

3DINAMA, “Semester report of the BOTNIA Emission Control and Environmental Performance Plan”,
11 November 2008-31 May 2009, p. 26. - 27 -

29. Before turning to look briefly at the fi gures supporting these conclusions, let me explain

as simply as possible what parameters are important in regulating and evaluating wastewater

discharges from the mill. Argentina would have you believe that volume is what matters. If only it

were so simple. I will leave the technicalities to others, but there are three ways in which we might

understand and assess what comes out of the waste pipe.

30. First, water quality. Water quality standard s provide a means of ensuring that the water

in the river remains fit for intended purpose, including drinking, even after effluents are discharged.

There will always be effluents from many sources in a river ⎯ the key question is at what

concentrations they can be regarded as unacceptable pollution that might harm the river and violate

the Statute. The more sensitive the river, the stricter the water quality standards. CARU has

adopted agreed water quality standards for most of the important potential pollutants in the River

Uruguay, although not for phosphorus or nitrogen. And I will return to that point.

31. The Botnia plant is required by its permits to operate so that it does not cause violations

of the strictest applicable standards, whether CARU or Uruguayan. And these standards are indeed

strict. The IFC’s experts compar e CARU standards favourably with those of the European Union,
33
Australia, and the World Health Organization, amongst others . Argentina has not argued

otherwise. Compliance with applicable water quality standards is thus an important test of whether

the mill’s performance meets all the pollution prevention requirements of the 1975 Statute.

32. Second, we can also consider effluent di scharge limits. If water quality is the objective,

the result, then discharge limits are one of the means to secure that result. Expressed as milligrams

per litre (mg/l) and tons per day (t/d), the firs t provides a measurement of the concentration of

effluents in each litre of wastewater discharged from the plant and the second sets a limit on the

absolute amount of effluents that can be discharged in a day. These are the principal tools by

which national regulators achieve or preserve the desired water quality.

3International Finance Corporation, Cumulative Impact St udy, Uruguay Pulp Mills, Ann.D (hereinafter “final

CIS, Ann. D”), pp. D2.5, D2.9-D2.10, Sep. 2006. CMU, Vol. VIII, Ann. 176. - 28 -

33. Under the 1975 Statute it is the parties, not CARU, which prescribe discharge limitations

for any given source 34. Uruguayan law and the permits issued to the plant set specific daily

discharge limits for all the relevant substances. Compliance with these limits is thus the second test

of the mill’s performance. But it is essential for the Court to understand that what comes out of the

effluent pipe includes what was in the water extracted by the plant. If, for example, the river water

is full of phosphorus from elsewhere when extracted from the river by the mill, it will be full of the

same phosphorus when it goes back into the river ⎯ even if the mill has added nothing. Such

discharges will of course not change water quality.

34. Finally, I think the third way of looking at these issues is to consider environmental

efficiency ⎯ how much effluent does the mill discharge for each ton of pulp produced?

Mr.McCubbin will deal with this point tomorrow, so I will move quickly on and outline what

EcoMetrix and DINAMA say about effluent disch arge limits and water quality. Because the

evaluation has been so thorough ⎯ one commentator described th e Botnia mill as “the most

35
monitored site in the world today” — I can but scratch the surface of the information but I am

sure the Court will be very grateful to me if I do refrain from going any further.

VI. D ISCHARGES COMPLY WITH ALL THE PERMITS GRANTED BY U RUGUAY

35. The first point to make is to draw your attention to the plant’s compliance with its

effluent discharge limits.

36. The third EcoMetrix Report shows that, as confirmed by DINAMA, effluent discharges

from the plant comply with all the applicable Uruguayan regulations and permits and that the

36
effluent is not toxic . In some cases, including dioxins and furans, toxic substances to which

Argentina has drawn attention are detectable in mill discharges, if at all, only at background levels

equivalent to the river water.

34
The Digest does have discharge limitations for a limited number of substances, Digest of the Administrative
Commission of the Uruguay River (CARU), Subject E3 (hereinafter “CARU Digest Subject E3”), Title 2, Chap. 5, Art. 7
(1984, as amended), CMU, Vol. IV, Ann. 60, but the discharges of the Botnia plant will not contain, and Argentina does
not allege that they will contain, any of those substances.
35
Clarin, 25 January 2009. Uruguay’s Submission of New Documents, 30 June 2009, Ann. S17.
3Third EcoMetrix Report, p. 3.5, Uruguay’s Submission of New Documents, 30 June 2009, Ann. S7. - 29 -

37. Let me start with phosphorus. As the Court no doubt recalls from Argentina’s

presentations last week, phosphorus, like nitrogen, af fects the health of the river because it can, in

some instances, contribute to algal blooms. Uruguay, of course, recognizes that there is a

long-standing problem of algal blooms in the river, but it believes that Argentina has vastly

overestimated the impact of phosphorous discharges from the Botnia plant.

38. For example, emissions of phosphorus during its first year of operations have remained

well below the regulatory limits. Uruguayan Decree253/79 and Botnia’s permit establish a

37
maximum discharge limit of 5milligrams per litre . The mill’s average discharge of 0.59mg/l.

That is little more than one tenth of the permit limit 38, and it is 40 per cent lower than the standard

of 1mg/l that, in the written pleadings, ProfessorWheater claimed should be applicable to the

Botnia mill 39.

39. Moreover, as the EcoMetrix Report also confirms total phosphorus “reduced over the

latter part of the 2008monitoring year due to optimization of the mill process and effluent

treatment” 40. This improvement has continued since Ecometrix published its third report.

DINAMA has established that between Nove mber2008 and May2009 the mill’s average

discharge of phosphorus fell further, by almost half, to 0.3 mg/l, or less than one seventeenth of the

regulatory limit, and 70 per cent lower than Professor Wheater’s 1 mg/l standard 41 ⎯ 70 per cent.

40. Let us look at nitrogen. The Botnia plant’s performan ce with respect to nitrogen has

been just as good. The EcoMetrix Report notes that “the concentration of total nitrogen is well

within the permit limit” 42. In its written pleadings, although not last week, Argentina asserted that

43
a well-run pulp mill should have an effluent concentration of between 2 to 4 mg/l of nitrogen . In

fact the average concentration of nitrogen in Botnia’s effluent fo r the first year of operations is

37Decree No. 253/79, Art. 11(2), CMU, Vol. II, Ann. 6.
38
Third EcoMetrix Report, p. 3.4. Uruguay’s Submission of New Documents, 30 June 2009, Ann. S7.
39
Second Wheater Report, p. 25. RA, Vol. III, Ann. 44; RA, para. 3.175.
40
Third EcoMetrix Report, p. 3.4, Uruguay’s Submission of New Documents, 30 June 2009, Ann. S7.
41DINAMA, July 2009, Botnia Environmental Performance Report, p. 14.

42Third EcoMetrix Report, p. 3.4. Uruguay’s Submission of New Documents, 30 June 2009, Ann. S7.
43
RA, para. 3.111. - 30 -

44
2.6 mg/l . The maximum monthly load for 2008 has b een just one third of the permit limit and

even less than the final CIS estimate 45.

41. Dioxins, furans, lindane . The Court heard much last week about dioxins and furans,

which Argentina insinuated had been deposited in the river by the Botnia plant. But what the Court

did not hear from Argentina were the results of the monitoring of Botnia’s effluent, no doubt

because it provides conclusive eviden ce that dioxins and furans in the river could not have come

from the plant. Even using sophisticated methodol ogy capable of detecting the extraordinarily low

concentration of less than one part per quadrillion of water ⎯ and, yes, I had to use Google to work

out what a quadrillion was ⎯ dioxins in the plant’s effluent were not found, except a single furan

at a sample well below one fifth of one quadrillionth of a gram per litre ⎯ I think that is very, very,

very, very small. It is certainly lower than the furan levels detected in the baseline sampling

performed on the Uruguay river 46. This tiny amount is more than 25times below the discharge

permit limits. As EcoMetrix concl uded, it could not be attributable to the plant but, rather, could

only have come from the water supply taken from the river.

42. The same can be said for lindane. Use of lindane has been illegal in Uruguay for over

47
twenty years . From its knowledge of Botnia’s processes, DINAMA confirms that Botnia does

not use lindane in the mill. Trace elements fro m other sources will of course continue to be

detectable in the river for many years. Argentina assumes that all the “pollutants” ⎯ to use its

term ⎯ all the pollutants it has identified come fr om the plant. But Uruguay’s evidence shows

very clearly that they do not. You would expect to find dioxins and lindane in the river, and in the

sediments. They are, after all, persistent. They may be in the water the plant extracts from the

river. They will still be in the water it puts back. If the levels are no higher than background

levels, they cannot have been added by Botnia.

44Third EcoMetrix Report, p.3.4, Uruguay’s Submission of New Docume nts, 30 June 2009, Ann. S7; RU,

Vol. IV, Ann. R98.
45Third EcoMetrix Report, p. 3.4, Uruguay’s Submission of New Documents, 30 June 2009, Ann. S7; Wastewater
Treatment System Approval, op. cit., table 1; CMU, Vol. X, Ann. 225.

46Third EcoMetrix Report, p. 3.5, Uruguay’s Submission of New Documents, 30 June 2009, Ann. S7; DINAMA,
July 2009, Botnia Environmental Performance Report, p. 6, table 2.

47www.mgap.gub.uy/dgssaa/normativa. - 31 -

43. No one should be surprised by the all but complete absence of dioxins and furans in the

Botnia discharge. These persistent organic pollutants are regulated by Uruguay in accordance with

the 2001 Convention on Persistent Organic Pollutants, otherwise known as “POPs”, and they are

by-products of combustion and various industrial processes, including the bleaching of wood pulp

by chlorine. But Botnia’s technology does not use chlorine bleaching and therefore does not

produce or generate dioxins and furans in more than vanishingly small trace amounts, unlike the

pulp mills operating in Argentina that still employ the decades-old chlorine process. It is

noticeable, as I told the Court in 2006, that while Argentina emitted 2110g of dioxin in 2001

according to its own National Inventory on the Discharge of Dioxins and Furans, in 2002 the whole

48
of Uruguay for comparison emitted a total of 55 g, according to its national inventory . And those

are the most up-to-date figures available.

44. Toxicity. Let me also respond to Argentina’s re peated and rather car eless references to

Botnia’s effluent as toxic. The effluent is not toxic ⎯ and even Argentina’s own scientific report

nowhere concludes that it is. As required by its Wastewater Treatment System Approval, Botnia

49
conducts monthly acute toxicity tests for the effluent . This is done by measuring the survival of

fish, invertebrates, and other river biota in pure e ffluent. Botnia’s effluent has passed with flying

50
colours: the tests have revealed no acute toxicity from mill effluent whatsoever . The IFC’s

technical experts concluded that “[m]onthly t esting has been completed following standard

protocols using three separate test procedures”. These results show that the effluent is not toxic

and is in full compliance with Uruguayan regulations and permits 51. No dead fish. No dead snails.

Not in the laboratory. Not in the river.

45. I will address air pollution only briefly: Mr. McCubbin will say more about the technical

aspects. In Uruguay’s view air pollution falls strictly outside the Court’s jurisdiction in the present

dispute. The 1975Statute is concerned with the optimum and rational utilization of the River

Uruguay (Art.1). It covers, among other things, na vigation in the river, fishing, conservation of

48
POPS Convention website at www.pops.int/documents/guidance
49
Environmental Performance Review, p. 3.6. RU, Vol. IV, Ann. R98.
50Ibid. See also Third EcoMetrix Report, p.3.5, Uruguay’s Submission of New Docu ments, 30 June 2009;
DINAMA, July 2009, Botnia Environmental Performance Report, p. 6, table 2.

51Third EcoMetrix Report, Uruguay’s Submission of New Documents, 30 June 2009, Ann. S7, p. 3.5. - 32 -

natural resources, and prevention of pollution of the “aquatic environment” (Arts.35, 37-41). It

does not create a general régime of environmental protection, nor does it seek to regulate effluents

otherwise than through the medium of the river.

46. The Statute has no provisions specifically on air pollution. Article36, on which

Argentina relies, is concerned with the co-o rdination of measures “through the Commission” ⎯

that is CARU ⎯ to avoid “any change to the ecological balance and to control pests and...

harmful factors in the river and the areas affected by it”. This article cannot reasonably be

interpreted as covering transboundary air pollution allegedly affecting areas well beyond the river.

If it did apply to air pollution CARU would have regulations on the subject. CARU has no

regulations on air quality. It has confined itself solely to the regulation of water quality. Neither

Argentina nor Uruguay has ever proposed that CARU should regulate transboundary air pollution.

This is surely a decisive rejection of the claim that the Statute covers the topic.

47. Nor has Argentina offered the Court any evid ence that airborne emissions from the plant

cause significant harm to the aquatic environment or alter its ecological balance: but of course

Uruguay’s evidence that water quality has not chan ged applies equally to airborne deposition and

to discharges through the effluent outlet.

48. Article 60 of the Statute indicates with th e utmost clarity that the only disputes covered

ratione materiae are those relating “to the interpretation or application...of the Statute”. It

follows that air pollution extending beyond the rive r itself falls outside the Court’s jurisdiction

under Article 60.

VII. CARU WATER QUALITY STANDARDS HAVE NOT BEEN VIOLATED

49. Now let me turn to the proposition that CARU’s water quality standards have not been

violated. If we look at Botnia plant’s impact on water quality in the River Uruguay, we are really

looking at its lack of any impact ⎯ if we measure that by reference principally to the water quality

standards established by CARU and Uruguay. As reported by EcoMetrix and DINAMA, we can

see that the Botnia plant has had no effect on the river. DINAMA’s monitoring plan for Botnia

requires water quality monitoring for more than 60 parameters, at 16representative stations along

the river, both before and after the plant stated up. Monitoring covered all seasons throughout - 33 -

2008 and the first half of 2009, and, of course, it continues. It includes periods of low river flow

and high river flow. It has resulted in the analysis of thousands of samples. You will see, I hope,

on the screen ⎯ yes ⎯ the location of these monitoring stations, some of them upstream, some of

them adjacent to, and some of them downstream from the plant.

50. The findings reported by EcoMetrix in its third report show very clearly that effluent

from the Botnia plant has not resulted in any violation of applicable CARU water quality standards.

DINAMA’s findings confirm this conclusion, which was predicted with great accuracy, initially by

DINAMA, and then by the Final Cumulative Impact Study carried out for the World Bank. The

CIS study found that “the mill discharge would have minimal effect on water quality within the Rio

52
Uruguay under both average and extreme low flow conditions” . That has indeed turned out to be

the case ⎯ and even Argentina’s scientific report does not suggest otherwise, although you would

not have learnt that from their counsel. Ind eed in Argentina’s Biogeochemical study, which

measured what they called “sta ndard water quality parameters” ⎯ they are their words ⎯ from

November2008 to April2009 (p.10), Argentina’s report concludes that “All parameters [all

parameters] show relative(ly) normal values for th e River Uruguay” (p.15). It is very strange

when you read that and recall what the Court was told last week.

51. So, Argentina’s own evidence thus confir ms Uruguay’s findings. For example, if you

look at DINAMA’s graph, it shows that levels of nitrogen throughout the river were lower in 2009

53
than in the baseline year and the plant’s first year of operation . Similarly, it is still impossible to

detect dioxins and furans at the stations closest to the Botnia plant, or elsewhere 54.

52. One conclusion from all of the monitoring undertaken before the Botnia plant began

operations is that phosphorous le vels were too high. Unsurprisingly, this is still the case.

However, it is important to realize that monitoring has determined that the levels of phosphorus in

the river have not increased . DINAMA’s most recent data confirms that phosphorous

concentrations in the waters above and below the plant are highly variable, but the 2009 total

phosphorus graph is very similar to previous year s, including the baseline year before the plant

52
Third EcoMetrix Report, Uruguay’s Submission of New Documents, 30June 2009, Ann.S7, para.4.5;
emphasis added.
53
DINAMA, July 2009, Water Quality Report, p. 17, Fig. 4.23.
54DINAMA, July 2009, Water Quality Report, p. 21, para. 4.1.11.5. - 34 -

started to operate 55. This is not at all what would be expected if the plant really had made any

difference to water quality.

53. Now the third EcoMetrix Report independent ly comes to the same conclusion. With

respect to phosphorus it says: “Total phosphorus levels are comparable to the baseline levels

previously reported for the Río Uruguay... [and let me emphasize the next point, they say] The

present and past levels of total phosphorus are not attributed to the mill effluent discharge.” 56 But

although neither Botnia nor Uruguay is the sole or even primary cause of the phosphorus in the

river, Uruguay has made diligent efforts to redu ce inputs of phosphorus and other nutrients from

municipal wastewater, and from agricultural and other land-use activities.

54. As we said in the Rejoinder, and as was recommended by the final CIS and the IFC, the

57
Botnia plant will soon start to treat the municipal wastewater of Fray Bentos . According to the

final CIS this “reduces the total loading of organics and nutrients, in particular phosphorus, to the

Rio Uruguay” 58, and they go on to say it “ virtually off-sets the net loading of organics and

59
nutrients from the Botnia mill...” . Phosphorous discharges in the immediate vicinity of the

plant would thus be reduced by some 8.8tons per year, or nearly three quarters of the plant’s

annual discharge predicted in the final CIS 60.

55. Secondly, Uruguay is also engaged in expanding and updating other municipal

61
wastewater systems across Uruguay, includi ng systems that discharge to the river . For example,

the planned wastewater treatment system in Salto will reduce phosphorous discharges to the

Uruguay river by approximately 25 tons annually, or about twice the predicted discharge from the

62
Botnia plant .

55DINAMA, July 2009, Water Quality Report, p. 18, fig. 4.24.

56Third EcoMetrix Report, Uruguay’s Submission of Ne w Documents, 30June2009, Ann.S7, para.4.2;
emphasis added.

57See Agreement between OSE and Botnia Regarding Treatmen t of the Municipal Wastewater of Fray Bentos,
29 Apr. 2008, RU, Vol. III, Ann. R71.

58Final CIS, Ann. D, pp. D4.5-4.6, CMU, Vol. VIII, Ann. 176.

59Ibid., p. D4.6; emphasis added.
60
RU, para.4.93. See also OSE, Disc harge of Residual Liquids in the Uruguay River Basin, RU, Vol.II,
Ann. R13; Final CIS, Ann. D, p. D4.6, CMU, Vol. VIII, Ann. 176.

61World Bank, Press Release, RU, Vol. III, Ann. R69.
62
RU, paras. 4.93-4.95. - 35 -

56. And finally, Uruguay is implementing a comp rehensive conservation and control plan to

reduce soil erosion and run-off containing phosphorus and other nutrient contributions from

63
farming and livestock . When fully implemented, all of these measures together should more than

offset the discharge of phosphorus from the Botnia plant. It would, of course, be excellent if

Argentina would join in co-ordina ting measures of this kind under Article36 of the Statute. But

not only has Argentina not done so, but its own discharge of nutrients is a large part of the problem.

57. Argentina’s complete failure to deal with these inputs into the river is probably the most

glaring weakness in its case. Far from showing that the river is highly sensitive, it shows the

contrary. After hearing from Argentina about the 1975 Statute creating a community of interest in

the river, it may surprise Members of the Court to learn that only Uruguay regulates phosphorus 64.

Neither Argentina nor CARU has a water quality standard for phosphorus, or for the soluble

reactive phosphorus about which its counsel held forth so eloquently last week.

58. If the river really is as sensitive as Argentina says, why has it not adopted a water quality

standard for phosphorus in whatever form? Why has it not proposed that CARU should adopt one?

Plainly, Uruguay could have no objection. Presu mably there is no CARU water quality standard

for any type of phosphorus because Argentina does not want one.

59. And why has Argentina not done much more to address these problems itself? To

choose only one example: the evidence shows that Argentina’s phosphorous inputs from the

Gualeguaychú river represent a far greater proporti on of the total phosphorous loading than inputs

from the Botnia plant. Uruguay’s experts have estimated that phosphorous loadings from the

65
Gualeguaychú river watershed alone totalled some 350tonnes per year . This is more than

25 times the total amount of phosphorus contributed by the Botnia plant to the whole river 66. It is

also rather less than Argentina’s own eviden ce. And Argentina has not challenged these

calculations. It acknowledges, Argentina acknowledges in its pleadings, that the elevated level of

63
Ministry of Livestock, Agricultu re and Fishing, “Campaign for Re sponsible Land Use”, 16Apr.2009,
Uruguay’s Submission of New Documents, Ann. S1; Affidavit of Eng. Andrés Berterreche, Undersecretary of Livestock,
Agriculture and Fishing of Uruguay, 11 July 2008, RU, Vol. IV, Ann. R95.
64
RU, Decree 253/79.
65The conservative estimate for nitrogen is over 3,400 tonnes, RU, para. 6.28.

66Exponent Report, Sec. 4-2, RU, Vol. IV, Ann. R83. - 36 -

phosphorus in the beach area at Ñandubaysal is most likely caused by its proximity to the mouth of

67
the Gualeguaychú river , not surprisingly.

60. In failing to minimize these inputs Arge ntina is neither acting diligently to prevent

pollution in accordance with the Statute nor equita bly in its own use of the river as a shared

resource. It complains about far lower inputs of nutrients from the Botnia mill, yet it appropriates a

grossly inequitable share of the river’s domes tic, industrial and agricultural uses for its own

effluents. In effect, what Argentina asserts is a servitude, intended to allow it to pollute the river

indefinitely. It defends itself by claiming that existing Argentine uses of the river have priority

over newer Uruguayan uses, or by attributing every po llutant in the river to the Botnia plant when

this is plainly not the case.

VIII. THE RIVER ’S ECOLOGICAL BALANCE AND
ENVIRONMENT HAVE NOT BEEN HARMED

61. Let me then turn to the river’s ecological ba lance, and I have not got a great deal more to

say. Argentina made some specific claims last w eek about harmful effects on fish and rotifers.

Mr. Reichler’s speech will show the Court why these cl aims are not credible. All that I need say is

that Uruguay’s monitoring programme includes deta iled assessments of the plant’s effects on river

fauna, and on the sediments where local fish species feed. Uruguay has not found any evidence of

changes in the ecology of the river. On the contra ry, its monitoring shows a river just as healthy as

before the plant began to operate.

62. In August the Directorate for Aqua tic Resources, otherwise known as “DINARA”,

publicly reported on the results of ichthyofauna monitoring carried out during the second year of

operation of the Botnia plant 68. This covered the stretch of river from kilometre80 to

kilometre 110 of the lower Uruguay river. The resu lts were then compared with those reported in

the baseline study and in the previous year. The purpose was obviously to evaluate the existence of

possible changes in the short and medium term.

67
MA, para. 6.32.
6DINARA, Report on Ichthyofauna Monitoring in the Botnia Cellulose Plant Area, 2nd Year of Operation, 2009.
Deposited with the Court. - 37 -

63. DINARA’s very comprehensive report ⎯ which has been given to the Court ⎯

concludes that compared to 2008 and 2009 there is no change in species biodiversity and the

average length and average weight calculated for the four fishing stations showed no variations of

importance.

64. DINAMA has also monitored the sediments wh ere some fish species feed. I will simply

quote from the text of its July 2009 report: “ The results of the monitoring of the sediments done in

February 2009 . . . show once again that the quality of the sediments at the bottom of the Uruguay

69
River has not been altered as a consequence of the industrial activity of the Botnia plant” .

65. Uruguay was criticized last week for allegedly harming the Ramsar Convention wetland

at Esteros de Farrapos. This site is wholly in Ur uguay. Argentina’s claim that the site has been

damaged was supported only by a photograph allegedly showing the February algal bloom reached

areas near the southern boundary. Mr. Reichler will show that the algal bloom originated not at the

Botnia plant but much further upstream.

66. In my submission to the Court in 2006, I pointed out that Esteros de Farrapos was not

included in the list of Ramsar sites whose ecological character is threatened ⎯ otherwise known as

the “Montreux record” 70. Nor has the position changed. As of last Tuesday 15September2009

when I did a Google search, Argentina had failed to secure a listing of the site on the Montreux

record. This is not surprising ⎯ Argentina has no evidence of damage. It has produced no data to

show that it took relevant samples at Esteros de Farrapos, or that it measured the flow of the river at

this point. We do agree that under certain cond itions the model shows the effluent plume could

reach Esteros de Farrapos, which is some 16 km away from the plant. Regrettably this information

was not available to me and I therefore could not make it available to the Court in 2006. But even

if the effluent plume did reach Esteros de Farrapos, it would do so at the dilution of 1:1000

indicated on the slide that Professor Colombo so ve ry helpfully showed the Court last week. One

would expect effluent from the mill at a dilution of 1:1000 to be quite harmless and below any

concentration capable of constituting pollution.

69
DINAMA, Follow-Up Plan Cellulose Plant at Fray Bentos Surface Water and Sediment Quality Data Report
(Semester January-June 2009), p. 29, para. 5.2; emphasis added.
7www.ramsar.org - 38 -

IX. C ONCLUSIONS

67. Mr.President, and Members of the Court, that, happily, brings me to my conclusions.

All of the studies undertaken prior to Uruguay’s decision to authorize the operation of the plant

concluded that there was no risk of significant harm to Argentina, no risk of pollution of the river,

no likelihood of significant changes to the river’s ecological balance. Uruguay took full account of

these studies and of Argentina’s representations before approving the plant. The evidence provided

by independent monitoring reports, and by DINAMA, since the plant started to operate, confirms

the accuracy of all of these predictions. And speci fically, if I may summarize for the Court, what

the evidence that we have put before the Cour t shows is the following, and I have got seven

conclusions:

1. There has been no change in water quality when the pre- and post-operational data are

compared — no change.

2. Phosphorous and nitrogen levels in the rive r have not changed since the plant began to

operate ⎯ no change.

3. Levels of persistent organic pollutants, including dioxin s and furans, have not changed since

the plant began to operate ⎯ no change.

4. Effluent discharges from Botnia are below the levels specified in all of the applicable discharge

regulations and permits, and Argentina has not argued otherwise.

5. Effluent discharges from the mill have not resulted in the river’s water quality falling below the

applicable standards set by CARU and agreed by both States, and Argentina has not argued

otherwise.

6. The plant’s effluent discharges have not caused any alteration in the ecological balance of the

river or harmed the aquatic environment.

7. And finally, cumulatively, these conclusions point inescapably to the further conclusion that

effluent discharges from the Botnia plant have not caused harmful pollution in violation of the

1975 Statute of the River Uruguay, and I will return to that point on Wednesday.

68. Mr.Reichler will now show the Court th at Argentina’s evidence leads to exactly the

same conclusions ⎯ that Argentina’s evidence leads to exactly the same conclusion. - 39 -

Mr.President, this may be a convenient time for a coffee break. And Mr.President,

Members of the Court, that concludes my speech this morning.

The VICE-PRESIDENT, Acting President: Indeed, it is a good moment to take our coffee

break. I thank you, Professor Boyle, for your presentation, and I suspend the sitting for 15 minutes.

The Court adjourned from 11.15 to 11.30 a.m.

The VICE-PRESIDENT, Acting President: Please be seated. The hearing is resumed, and

Mr. Reichler, you have the floor.

Mr. REICHLER:

THE PERFORMANCE OF THE PLANT : ARGENTINA ’S EVIDENCE
(PART I)

1. Mr.President, Members of the Court, as always for me it is a special honour to appear

before you, and I am especially privileged today to speak on behalf of Uruguay.

2. I will address you today, and also tomorrow, on the evidence concerning the

environmental issues in this case. In particular, I will review with you the evidence that has been

presented by Argentina, and I will demonstrate to you that it fails to support Argentina’s case.

3. In fact, the failure of Argentina’s evid ence is dramatic. As you heard last week, the

applicant State invested more that two years in producing its Scientific and Technical Study, which

was presented to the Court only on 30June of th is year. According to Argentina, more than

90people, at all levels, were involved in this effort, which was performed by the science

71
departments at two Argentine universities, under contract to the Argentine Government . It

appears that no expense was spared. Nonetheless, as you will see, the data collected as part of this

massive study do not support the claims you heard last week.

4. In fact, and this is quite remarkable given the size, the breadth, the cost and the purpose of

Argentina’s scientific study, the data collected by Argentina fully support Uruguay’s claims:

(i) that the Botnia plant has not affected the water quality of the Uruguay river;

71New Documents Submitted by Argentina, Vol.I, Scintific and Technical Report (hereafter “Argentina
Scientific and Technical Report”), 30 June 2009, Executive Summary, p. 1. - 40 -

(ii) that the plant has not increased the concentrations of phosphorus, or nitrogen, or any other

substances in the river;

(iii) that the plant did not cause ⎯ indeed, based on Argentina’s own data from its own study,

the plant could not have caused the algal bloom of 4 February 2009;

(iv) that the plant has not affected the biodiversity of the river or its ecosystem;

(v) that it has not harmed aquatic organisms such as clams or rotifers;

(vi) that it has not harmed fish;

(vii) that it has not introduced nonylphenols into the river; and

(viii) that it has not introduced dioxins or furans into the river.

5. For four days last week, we sat through an artful presentation by Argentina’s very able

counsel. The picture they painted of the Botnia plant was horrible ⎯ in two different senses of the

word. They portrayed the plant as a horrible environmental nightmare. But the picture painted by

Argentina was horrible in another sense. It was a horrible likeness. In the end, Mr. President, as

you and the distinguished Members of the Court will see, the picture of the plant painted by

Argentina’s counsel was no Vermeer. It was not Dutch realism. It was the surrealism of Salvador

Dalí.

6. Mr.President, in the course of the days that follow, Uruguay will give you the facts ⎯

facts, not as we choose to portray them, but as they are. You will see that the evidence before the

Court, especially including Argentina’s own Scientific and Technical Study, does not sustain

Argentina’s case. Botnia has not caused any harm to the river, to its water quality, or to any aspect

of the aquatic environment; nor is there any evidence that it is likely to do so in the future. In fact,

you will see that the Botnia plant is performing far better, and to far higher environmental

standards, than even the IFC and its independent experts predicted it would.

7. Mr. President, I must begin by asking your indulgence because, contrary to my desire, the

use of technical and scientific terms is unavoida ble. Mindful of the numbing effects an abundance

of technical words and numbers can have on even th e most patient listener, I will try to keep both

the scientific language and the mathematics within manageable limits, and I will rely heavily on

visuals ⎯ maps, satellite photos and charts ⎯ to ease the Court’s task in absorbing a considerable

amount of complex, but highly relevant, information. - 41 -

I.R EVERSE FLOW

8. Mr. President, Members of the Court, we heard a lot from Argentina last week about the

reverse flow of the Uruguay river. We heard from Argentina’s experts and counsel that the

Uruguay river flows in reverse, that is, it flows upstr eam, quite frequently. In fact, many rivers do.

Reverse flow in tidal estuaries is a common phenomenon, and quite a number of the others are also

sites for pulp mills, as Mr. McCubbin will discuss tomorrow. There is nothing new, or surprising,

at least to Uruguay, about the hydrodynamics of the Uruguay river, including the frequency of its

reverse flow. Uruguay, and DINAMA in particular, have been familiar with this since long before

Botnia first arrived in the country.

9. Last Monday, Professor Sands displayed a chart, which I will have more to say about later

in my speech. His chart purported to show the frequency of the river’s reverse flow, which he told

us occurred with some significance on 23 per cent of the days of the year 72.

10. Professor Sands and his colleagues told us, many times, that this is one of the most

important ⎯ if not the most important ⎯ aspects of Argentina’s case, because, according to them,

the reverse flow of the river prevents the Botnia plant’s effluents from washing away downstream.

Instead, according to Argentina’s counsel, effluents such as phosphorus and nitrogen accumulate in

the part of the river adjacent to the plant, until they reach concentration levels harmful to water

73
quality and biodiversity .

11. According to Argentina, Uruguay’s biggest sin is that it neglected to take the river’s

reverse flow into account in deciding to authorize th e Botnia plant. I will not refer here to all the

times we heard this last week, but there were at least 13 such occasions 74, all cited in the footnotes

to my speech that will appear in the compte rendu. This is a central theme of their case: that

Uruguay failed to take the river’s reverse flow into account when it authorized the plant, either

because of DINAMA’s sheer incompetence or because, as ProfessorKohen unkindly put it,

75
Uruguay bent its knee before Botnia .

72
CR 2009/12, pp. 41-42, paras. 12-13.
73For example, CR 2009/12, pp. 38-39, paras. 7-9.

74CR 2009/12, p.38, para.8; p.39, para.9; p.39, para .9; p.41, para.13; p.47 , para.22; p.51, para.32;
p.53, para.36; CR 2009/14, p.52, para.29(Colombo); CR2009/ 14, p.57, para.7 (Sands); p.60, para.11; p.60,
para. 12; CR 2009/15, p. 13, para.6 (Sands).

75See CR 2009/13, p. 25, para. 35 (Kohen). - 42 -

12. We heard further, that Uruguay did things backwards: first they authorized, then they

assessed. Even when Uruguay finally got around to assessing, Professor Sands said, Uruguay got it

wrong, because they erroneously assumed that the river only flowed in reverse on rare occasions,

and seriously underestimated the frequency of this occurrence 76.

13. Mr. President, Members of the Court, I am afraid that it is my good friends on the other

side who got it wrong. To be sure, Argentina’s counsel are all extremely forceful, articulate and

effective advocates, and well versed in the law, as they all demonstrated last week. But, and

especially in light of the deep regard I have for all of them, it is with considerable regret that I say

this: they do not know the evidence. They do not know the evidence in this case.

14. The evidence, the evidence that has been before the Court as part of the record of these

proceedings for years, the same evidence that was presented by Uruguay to Argentina within the

GTAN negotiations that took place between August 2005 and January 2006, before construction of

the plant was authorized, this evidence establishes the following six facts:

1. Uruguay thoroughly and painstakingly and correc tly assessed the river flow, and especially the

tendency of the river to flow in reverse, long before it authorized construction of the Botnia

plant 77. The citations to the record will be reflecte d, for all of these points, in the footnotes to

my speech appearing in the compte rendu.

2. Uruguay studiously assessed flow patterns across a wide swathe of the river, not just at a single

point like Argentina, to obtain a truer picture of flow volume and velocity, as well as direction,

and to more accurately predict how quickly, and to where, Botnia’s effluent would disperse 78.

3. Uruguay used a well-known water quality numerical model for determining effluent dispersion,

and displayed the results in a simulated anim ation video like the one Argentina presented in

Court last week. Based on its flow analyses, Uruguay determined that, for purposes of

76CR 2009/12, p. 42, para. 13 (Sands).
77
DINAMA Environmental Impact Assess ment Report for the Botnia Plant (11 Feb.2005), CMU, Vol.II,
Ann. 20 (hereafter “DINAMA EIA Report”), paras. 1 and 4.1; Additional Reports 5 of the Botnia Environmental Impact
Assessment, Ann.VIII, Studies of Plume Dispersion and Sediment Studies (12 Nov.2004), CMU, Vol.VII, Ann.164
(hereafter “Botnia Hydrodynamic Study”); Analysis of the Fluid Emissions Derived from the Botnia and M’Bopicuá
Pulp Mills, prepared by Chemical Engineer Cyro Croce, Hydr. and Environmental Engineer Eugenio Lorenzo, DINAMA
(7 Nov. 2005) (GTAN/DU/24/07-11-05), CMU, Vol. V, Ann. 143 (hereafter “DI NAMA Hydrodynamics Presentation at
GTAN”); Hydrologic Analysis for the Proposed Botnia Cell ulose Plant on the Uruguay River, Dr. J. Craig Swanson and
Dr. Eduardo A. Yassuda (Applied Science Associates, Inc.) (June 2007), RU, Ann. 214, pp. 6-9.

78Ibid. - 43 -

calculating the amount of effluent that the river could safely accept without harming water

quality or aquatic species, it should take an extr emely conservative approach and presume that

the river flows in reverse 29percent of th e time. That is, Uruguay presumed, in its

consideration of the Botnia project, that the rive r flows in reverse even more frequently than

Argentina says 7.

4. Uruguay concluded, based on this extremely conservative presumption, and other equally

cautious presumptions about the volume and velocity of the flow, as well as its direction, that

the Botnia effluents would dilute and disperse long before reaching con centration levels that

pose any risk of harm to water quality, or aquatic species, including fish 80.

5. Based on these conclusions, and only after they were presented to Argentina, and explained to

Argentina, and subsequently confirmed, Uruguay authorized the construction of the plant in

January2006. Actual operation of the plant w as not authorized for another 22months, until

November2007, after the IFC and its independe nt experts confirmed the validity of the

conclusions that Uruguay had reached 81.

6. Uruguay’s assessments of river flow, including reverse flow ⎯ including calculations,

conclusions, and the model itself, both in the form of slides and a simulated animation video ⎯

were provided to Argentina during the GTAN process, and discussed thoroughly with

82
Argentina, in 2005 . We have the documents, in the record of this case, to prove all of this.

15. Argentina’s counsel told you last Wednesday that they could find only one document ⎯

one document ⎯ in the entire record of this case that reflected Uruguay’s awareness of the reverse

flow issue, and they flashed on the screen a single piece of paper prepared by Botnia in

79Ibid; DINAMA Remarks on the Argentine Government Report on the Problem of Phosphorous, Ann.43

(May 2008), RU, Vol. II, Ann. R11, p. 2. See also CR 2009/12, p. 41, para. 13 (Sands).
80DINAMA EIA Report, paras. 1 and 4.1; Botnia Hydrodynamic Study; DINAMA Hydrodynamics Presentation

at GTAN; DINAMA Remarks on the Argentine Government Report on the Problem of Phosphorous, Ann.43
(May 2008), RU, Vol. II, Ann. R11, p. 2.
81DINAMA EIA Report, paras.1 and 4.1; First Report of the Uruguayan Delegation to the GTAN

(31 Jan. 2006), CMU, Vol. V, Ann. 154, p. B2 (note regarding GTAN/DU/12/14-09-05 provided to Argentine delegation:
“CD containing effluent dispersion model of the Botnia co mpany”); DINAMA Hydrodynamics Presentation at GTAN;
RU, para. 6.62.
82
First Report of the Uruguayan Delegation to the GTAN (31 Jan.2006), CMU, Vol.V, Ann.154, p.B2 (note
regarding GTAN/DU/12/14-09-05 provided to Ar gentine delegation: “CD containing effluent dispersion model of the
Botnia company”); DINAMA Hydrodynamics Presentati on at GTAN. See also, First Report of the Uruguayan
Delegation to the GTAN (31 Jan. 2006), CMU, Vol. V, Ann. 154, p. B3 (note regarding GTAN/DU/24/07-11-05); Final
Report of the Argentine Delegation to the GTAN (3 Feb. 2006), RA, Vol. IV, Ann. 1, p. 9 ( quoting Botnia’s “Studies of
Plume Dispersion and Sediment Studies” that flow reversals are “frequent in the area”). - 44 -

December 2003 purporting to record flow direction on a single date during that month. This is all

there is in the entire record of th is case, Argentina’s counsel assured you 83. Well, they must not

have looked at the record very diligently, if they looked at all.

16. Had Argentina’s counsel really searched the record of this case, here are some of the

documents they would have found. I say “some” b ecause I am sure the Court would not be happy

to have me spend the rest of my speech describi ng everything there is in the record of this case

evidencing each of the six points about Uruguay’s reverse flow analyses that I just emphasized ⎯

all of which was provided by Uruguay to Argentina duri ng the GTAN consultations before this

case began. [Slide 1.] This is at tab 5 of your judges’ folder. As you can see from this list and the

charts that follow it at tab5, Uruguay gave Argentina an extensive number of documents

containing its hydrodynamic studies of the river, including its studies of the frequency of reverse

flows. Just by way of example, let us look at the third of these documents listed on the screen.

[Slide 2.] These are some of the slides from the animated simulation of the model Uruguay used to

assess reverse flow, and to explain its assessment to Argentina. They are at tab6 of the folder.

The actual simulation was presented to Argentina electronically on 14September2005 84. On

7November2005, Uruguay showed and explained th e simulation to Argentina as part of a slide

presentation during the GTAN negotiations between the two States 8. That this is a simulation is

indicated by the little clock icon in the lower left. [Slide2 (a).] You can see from some of the

slides that Uruguay modelled the effluent flow from three discharge points, including the Botnia

plant, the ENCE plant ⎯ which was then contemplated ⎯ and the Fray Bentos municipal sewage

discharge. [Slide2 (b).] You can also see that Uruguay’s model showed the reverse flow

extending for some distance upstream beyond the Botnia plant.

17. Mr.President, as you can see from these slides, there is some similarity between the

model Uruguay gave to Argentina in November 2005 and the one Argentina displayed in Court last

8CR 2009/14, pp. 60-61, para. 12 (Sands).

8First Report of the Uruguayan Delegation to the GTAN ( 31 Jan. 2006), CMU, Vol.V, Ann.154, p.B2 (note
regarding GTAN/DU/12/14-09-05 provided to Argentine delegation: “CD containi ng effluent dispersion model of the
Botnia company”), CMU, Vol. V, Ann. 143. See also, RA, Vol. IV, Ann. 2, Ann. B, p. 101 (same).

8DINAMA Hydrodynamcis Presentation at GTAN; First Report of the Uruguayan Delegation to the GTAN
(31 Jan. 2006), CMU, Vol. V, Ann. 154, p. B3 (note rega rding GTAN/DU/24/07-11-05). See also, RA, Vol. IV, Ann. 2,
Ann. B, p. 102 (same). - 45 -

week, except that the Uruguay model was more conservative, assuming a 29 per cent reverse flow

rate, as compared to Argentina’s 23percent. S lides that were also presented to Argentina in

November 2005, and which provide the underlying, complex, hydrodynamic and mathematical

analyses, from which Uruguay’s 29 per cent flow rate assumption was derived, are also included at

tab6 of your judges’ folder. And they can be found at Annex143 to Uruguay’s

Counter-Memorial.

18. It would seem then, Mr.President, that Argentina has no ground to complain about

Uruguay’s assessment of flow reversal. Uruguay assumed in 2005 an even more conservative,

worst-case, 29percent reverse flow rate that was more cautionary than the 23percent rate

Argentina advocated last week. Argentina’s vehe mence on this point is all the more difficult to

understand in view of the evidence showing that Ur uguay presented, and explained, all of this to
86
Argentina in the GTAN process, between September and November 2005 . [Slide12 (c).] This

excerpt is from AnnexR-11 of the Rejoinder, at page 2. For context, the entire page of this

DINAMA document is in the folder; it is at tab 6. The entire document is in VolumeII of the

Rejoinder. The language on the screen is a di rect response to Argentina’s previous report

favouring a 23percent flow reversal rate. In view of the statements last week by Argentina’s

counsel and its experts, it is worth reading aloud:

“However, what the authors [that is, the Ar gentine authors] appear to neglect is

that the models used in both the Botnia study and the Ecometrix study assume a
particularly critical scenario that includes flow reversal events more demanding than
those discovered by the AGR [Argentine G overnment Report]. In particular, the

Botnia study assumes that flow reversal events occur 29.23% of the time . . . ”

And then it states that this is a datum that is implicit in the calculations presented in the GTAN

documents, at tab 6, given by Uruguay to Argentina on 30 September 2005 87.

19. Professor Sands told the Court on Wednesd ay, in the emphatic conclusion of his speech,

that “Uruguay had introduced no evidence on river flow” 88. In fact, collectively all of Argentina’s

advocates told you last week, not once, but 13 times, that Uruguay never assessed the tendency of

the river to flow in reverse, or the frequenc y with which this occurs, before authorizing

86
Ibid.
87
DINAMA Remarks on the Argentine Government Report on the Problem of Phosphorous, Ann. 43 (May 2008),
RU, Vol. II, Ann. R11, p. 2
8CR 2009/14, p. 65, para. 18. - 46 -

construction of the plant, and Uruguay never shared any assessment or consulted with Argentina

about it. In telling you this, they did prove one thing very clearly: they do not know the evidence.

20. Yet they continued to insist that Uruguay got it wrong; that when Uruguay finally and

belatedly got around to thinking about reverse flow , which, according to them, was not during the

GTAN negotiations but after construction of the plant was authorized, Uruguay badly

underestimated how frequently reverse flows o ccur. According to Professor Sands, Uruguay

89
dismissed this as a “rare” event . But, as we have seen from the evidence, Uruguay presumed that

the river flows in reverse substantially more fre quently than Argentina did, by 29percent to

23 per cent of the time. It is unfortunate, but they just do not know the evidence.

21. The question remains, however, whether Uruguay and DINAMA got it right. Was their

flow reversal presumption conservative enough to assure that the Botnia plant would not pollute the

river? As Argentina’s experts explained ⎯ and we do agree with them on this point ⎯ the answer

to this question lies in the water chemistry of the river. Reverse flows, at whatever frequency, are

not harmful in themselves. They are harmful only if they prevent the Botnia effluent from

dispersing down the river, and if they cause it instead to accumulate and rise to harmful

concentration levels.

22. So, to determine whether Uruguay and DI NAMA got it right, we have to look at the

water chemistry, and especially at the concentrations in the water of the particular elements that

Argentina singled out last week ⎯ phosphorus and nitrogen ⎯ especially in the part of the river

allegedly influenced by the Botnia plant, and we have to determine whether the plant has caused

the concentration levels of these elements to incr ease, and if so, whether the concentrations are

now, or likely to be, harmful ⎯ to the river, to its water, to aquatic life.

II.W ATER CHEMISTRY

23. Mr. President, Members of the Court, the evidence demonstrates that the Botnia plant has

had no impact on the concentration levels of phosphorus or nitrogen in the Uruguay river. I said:

no impact. Yes, the Botnia plant discharges what has been made to sound like a lot of phosphorus

and nitrogen into the river. Our colleagues on the other side were quite pleased to give you the

89
For example, CR 2009/12, p. 39, para. 10. - 47 -

annual tonnages, and they did so repeatedly. We take no exception to that. The data on which they

rely come from DINAMA. Howeve r, the evidence shows that all of the phosphorus and nitrogen

discharged by the plant ⎯ all of the phosphorus and nitrogen discharged by the plant ⎯ is quickly

dispersed and washed away by the river, ultimat ely into the Atlantic Ocean. None of it is

accumulating or causing the concentration levels in th e river to increase. This conclusion is fully

established by the repeated tests of water chemistry ⎯ and particularly the tests of phosphorous

and nitrogen concentrations ⎯ performed by both Parties.

24. Mr. President, the evidence ⎯ all the evidence ⎯ shows that the water chemistry at and

near the Botnia plant is unchanged. It has not ch anged since the plant began to operate nearly two

years ago. It is the same as or better than the wa ter chemistry elsewhere in the river. The evidence

shows that concentration levels of phosphorus and nitrogen at or near the Botnia plant have not

changed since the plant started up, and that they ar e the same as, or lower than, they are in other

parts of the river. This can only mean that these effluents have been properly diluted, dispersed

and washed away into the sea.

25. Now, as my colleague Professor Boyle has already told the Court, the evidence submitted

by Uruguay, based on the comprehensive monitoring programme conducted by DINAMA, and the

expert reports of the IFC’s independent consultants, show that the Botnia plant has not increased

concentration levels of phosphor us or nitrogen in the river 90. Since ProfessorBoyle has already

discussed this evidence, I will make only a few passing references to it in the course of my speech

today. Instead, I will focus on Argentina’s eviden ce. What may surprise the Court, especially in

light of what you heard from Argentina’s counsel last week, is that Argentina’s own evidence ⎯

Argentina’s own evidence ⎯ demonstrates conclusively that the Botnia plant has not altered the

concentrations of phosphorus or nitrogen in th e Uruguay river. Let me be more specific.

Argentina’s own Scientific and Technical Study ⎯ the one that measured the impacts of the Botnia

plant from November 2007 to April 2009; the 600-page document that they filed with the Court on

9Uruguay’s Submission of New Documents (30 June 2009), Ann.S2, DINAMA Performance Report for the
First Year of Operation of the Botnia Plant and the Environm ental Quality of the Area of Influence (May 2009), App. I,
para.4.1; Ann.S7, EcoMetrix Envi ronmental Performance Review: 2008 Monitoring Year, Mar.2009, p.ES.iii (“the
water quality of the Río Uruguay has not changed as a relt of the mill”) and paras.4.2-4.4. See also DINAMA
July 2009 Water Quality Report, Spanish original available vi a a link entitled “Informe Agua Semestre Ene-Jun 2009” at
http://www.mvotma.gub.uy/dinama/index.php?option=com_docman&Itemid=312. Translation submitted to the Court on
14 Sep. 2005. - 48 -

30June of this year; the one produced by the team led by Dr.Colombo; the principal piece of

evidence Argentina has submitted on th e actual performance of the plant ⎯ that Scientific and

Technical Study ⎯ shows that the Botnia plant has not added to the concentration levels of

phosphorus or nitrogen in the river.

26. Why is this evidence so important? Argentina’s counsel told us why last week.

According to them, it was the discharge of phosphoru s and nitrogen by the Botnia plant, coupled

with the reverse flow of the river on the days leading up to 4 February 2009 that produced

accumulation and increased concentration levels of phosphorus and nitrogen to such an extent in

front of the plant that an algal bloom occurred on that date. They repeated this charge several

times: they insisted that the emission of phosphorus especially, from the Bo tnia plant, caused the

91
algal bloom of 4 February 2009 .

27. But the evidence does not support this conclu sion. Even more to the point, Argentina’s

own evidence does not support it. In fact, Arge ntina’s evidence thoroughly disproves Argentina’s

own argument about the emission of phosphorus and the cause of the algal bloom.

III. PHOSPHORUS

28. Let us look at phosphorus. Argentina’s Scientific and Technical Study presents the

results of two separate analyses of phosphorous concentrations in the river. One is presented in

Chapter4 of the Study, which addresses the “Extraordinary algal bloom of 4 February 2009” . 92

The other is presented in Chapter3, which is entitled “Biogeochemical Studies”. Chapter4 of

Argentina’s Study shows that the Botnia plant does not alter the phosphorous levels of the Uruguay

river. The study measured total phosphorous levels at nine different sites ⎯ two upstream, three in

proximity to the Botnia plant, two in Argentina’s Ñandubaysal Bay, and two farther

downstream ⎯, all at five different periods: in May, July, September, November2008, and in

January 2009 ⎯ the last one on the eve of the algal bloom of 4 February 93. The conclusion of the

Study is expressed at page75 of Chapter4, and can be found at tab8 of the folder and on the

91
For example, CR 2009/12, pp. 42 and 47, paras. 14 and 22 (Sands); CR 2009/ 14, pp. 6 and 62-64, paras. 6, 15
and 17 (Sands); CR 2009/14, p. 45, para. 45 (Colombo).
92
Argentina Scientific and Technical Report, Chap. 4, pp. 3 and 115.
9Ibid., Chap. 4, p. 63. - 49 -

screen. [Slide4.] “In general, similar mean va lues were observed in all zones along the study

period. The maximum mean value was re gistered during May 2008... upstream.” 94 Thesame

page of the Argentine Study has a chart supporting this conclusion, which is reproduced at tab 9. It

is on the screen now. [Slide 5.] It shows the levels of phosphorus found at each site at each of the

five times when tests were conducted. As the Court can see from this chart, phosphorous levels in

the so-called area of “Botnia influence” are the same as or below those upstream, downstream and

in Argentina’s Ñandubaysal Bay.

29. This is easier to see if we look at the tes ting dates separately. Let us look at the first and

the last of these, by way of example. [Slide 5 (a).] Here are the graphic depictions of Argentina’s

test results for May 2008, when the testing began. As you can see, the highest concentration level

at the time was at one of the upstream control sites, outside Botnia’s alleged zone of influence.

Equally apparent is that the test results at all three sites within the so-called Botnia influence

zone ⎯ this is Argentina’s terminology, it is their chart ⎯ show lower phosphorous levels than at

the three sites in Ñandubaysal Bay, in Argentina. This is particularly interesting because,

throughout its Scientific and Technical Study, Ar gentina repeatedly states that these sites in the

95
Bay are in “an environment that is relatively detached from the river” , and “not tied to the river’s

natural and human-derived short-term variations” 96. In this way, Argentina established these test

sites in the Bay as control sites, not influenced by the effluents from the Botnia plant.

30. Let us now look at the test results for Ja nuary 2009, shortly before the algal bloom of

4 February. [Slide 5 (b).] Here we can see that, at this critical date, phosphorous levels at all three

sites allegedly influenced by Botnia were below the levels at both of the upstream control sites, and

equal to or below the levels at the two sites in Argentina’s Ñandubaysal Bay, which again, is

94Ibid., Chap. 4, p. 75.

95Argentina Scientific and Technical Report, Chap. 3.2, para. 4.1.2 (arguing that Argentina’s scientists were able
“to clearly set the bay apart, as it acts as an ecosystem that is relatively detached from the Uruguay river” and that the
data “shows that the bay is an environment that is detached from the short term fluctuations of the river”), para.4.3.1.2
(pointing to data that “reinforces the interpretation that th e bay is an environment that is relatively detached from the
river”).

96Ibid., Chap.3.2, para.1 (concluding that the Bay “is apparently not tied to the river’s natural and
human-derived short-term variations”). - 50 -

outside Botnia’s “zone of influence”. I remi nd the Court that these are all data produced and

presented by Argentina in its submission of 30 June 2009 97.

31. What makes these results especially impressive is that this was hardly an unbiased test.

To the contrary, it might even have been designed so that the Botnia plant would fail. This is

suggested by the test sites selected by Argentina, as shown at tab 10 on this slide. [Slide 6.] Of the

three test sites nearest to the plant that Argen tina selected, one is opposite the town of Fray Bentos

and very close to the point where its sewage is disc harged into the river, and another is slightly

downstream from the Fray Bentos sewage discharge point, where it is also impacted by the sewage

and industrial effluent flowing from the Argentine city of Gualeguaychú and its industrial park,

which come down the Gualeguaychú river into and through Ñandubaysal Bay 98. In other words,

two of the three test sites in the so-called “Botnia influence” zone were actually placed by

Argentina’s scientists directly in the pathway of all the human and industrial waste flushed or

dumped into the river by more than 100,000 Argentines and Uruguayans totally unconnected to the

Botnia plant 99. Nevertheless, and in spite of these bi ases, the test sites in the supposed “Botnia

influence” zone passed Argentina’s test. Even Arge ntina’s own scientists are forced to admit that

there is no detectable contribution to phosphorous concentration levels by the plant: “Similar mean

values were observed in all zones during the study period.” 100

32. The study reflected in Chapter4 tested for total phosphorus. It did not test for soluble

reactive phosphorus 101. The Court may recall what Professor Sands said about this last

Wednesday. He told the Court that DINAMA’ s monitoring of phosphorous effluents is

insufficient, because it covers only total phosphor us and does not measure for soluble reactive

phosphorus. He told the Court that the only prope r way to measure for phosphorus is to look at

soluble reactive phosphorus, or SRP, since this is the kind of phosphorus, he said, that stimulates

algal growth and contributes to algal blooms. He even publicly thanked one of Argentina’s

97
Ibid., Chap. 4, p. 75.
98
Argentina Scientific and Technical Report, Chap.4, pp. 64-65, Fig. 28 and Table VI; CMU, para.4.42; RU,
para. 5.38.
99
See CMU, para. 4.42; RU, para. 1.33.
100Argentina Scientific and Technical Report, Chap. 4, p. 75.

101Ibid. - 51 -

102
experts, Dr.McIntyre, for pointing this out to him . Strange then, that Argentina’s own study,

which states that it is addressed to the “extraordinary algal bloom of 4 February 2009,” 103makes no

mention of, and provides no data on, soluble reactive phosphorus.

33. Fortunately, SRP, as it is called, is covered in the other Argentine study of phosphorus, in

Chapter 3 of the Scientific and Technical Study, an d we are glad that it is. Chapter 3 is especially

interesting because it was authored by Dr.Colo mbo himself. Now, Dr.Colombo’s findings on

phosphorus differ from those reported in Chapter 4. Where the scientists who authored Chapter 4

found that “similar mean values were obser ved in all zones along the study period” 10,

Dr.Colombo found that “phosphorus nutrients ha ve more contrasting differences between the

stations” 105. However, Dr. Colombo did not find that phosphorus was higher at any of the test sites

allegedly influenced by the Botnia plant. [Slide 7.] To the contrary, here is what he wrote, which

you can also find at tab 11: “Both SRP and TP [t hat is, both soluble reactive phosphorus and total

phosphorus] are higher in Bellaco Bay . . . and to a lesser extent in Ines Lagoon.” 106Both of these

sites, where phosphorus was found to be higher during the study period, are in Argentina’s

Ñandubaysal Bay. What is particularly significant about this finding, as I said previously, is

Argentina’s repeated acknowledgment, at several different points in the Scientific and Technical

Study, that Ñandubaysal Bay and Inés Lagoon are in a relatively detached ecosystem, which are

unaffected by effluents from the Botnia plant 107. So Dr.Colombo’s own findings are that

concentration levels of both SRP and TP are higher in areas of the river unaffected by the Botnia

plant, than they are in the areas that allegedly are affected by it, and that the highest levels of all are

in Argentina’s own Ñandubaysal Bay.

102CR 2009/14, p. 63, para. 15 (Sands).

103Argentina Scientific and Technical Report, Chap. 4, pp. 3 and 115.

104Ibid., Chap. 4, p. 75.
105
ibid., Chap. 3.1, p. 24.
106
Ibid., Chap. 3.1, p. 24.
107Argentina Scientific and Technical Report, Chap. 3.2, para. 4.1.2 (arguing that Argentina’s scientists were able
“to clearly set the bay apart, as it acts as an ecosystem that is relatively detached from the Uruguay river” and that the

data “shows that the bay is an environment that is detached from the short term fluctuations of the river”), para.4.3.1.2
(pointing to data that “reinforces the interpretation that th e bay is an environment that is relatively detached from the
river”) and para.1 (arguing that the Bay “is apparently nottied to the river’s natural and human-derived short-term
variations”). - 52 -

34. Now, as I said, Dr.Colombo tested for soluble reactive phosphorus as well as total

phosphorus, so Professor Sands should be happy about that. He is likely to be less happy, however,

about Dr. Colombo’s actual findings. At this point , it is worth recalling what Professor Sands said

about SRP and the Botnia plant. He told th e Court on Wednesday that the Botnia plant was

responsible for a huge increase, a huge increase in SRP concentration in the areas of the river

influenced by the plant, and that this, in turn, resulted in the algal bloom of 4 February 108.

35. With Professor Sands’s statements to the Court in mind, let us have a look at what

Dr.Colombo actually found in regard to concentra tion levels of SRP. In Dr.Colombo’s study,

SRP is measured at each of seven different testing sites ⎯ three in what Argentina calls the plant’s

area of influence, and four outside it. One of these four control sites is upstream from the plant,

and three are in Argentina’s Ñandubaysal Bay, including the Inés Lagoon 109. Measurements were

110
made between 24November2007, just after th e plant started operating, and 17April2009 .

There are no baseline data, or at least none are presented. All the measurements presented by

Dr.Colombo were taken after the plant began to operate. So it is impossible for him to compare

post-operational levels of phosphorus or SRP with pre-operational leve ls at any of the chosen sites.

This of course is a major weakness in his study. Another problem involves the choice of testing

sites, shown at tab 12. [Slide 8.] Two of the three sites that Argen tina considers to be within the

“Botnia zone of influence,” shown in this graphi c are U3, perfectly placed directly across from the

Fray Bentos sewage disposal pipes, and U4, slightly downstream, where it receives the sewage and

industrial effluent from Gualeguaychú, as well as Fray Bentos 111.

36. In case the Court thinks I am going into such detail about the deliberate biases against the

Botnia plant that were built into Dr.Colombo’ s methodology, in order to excuse or explain

statistics showing high levels of SRP emanating from the plant, I hasten to assure you that there are

no such data. [Slide9.] This can be seen from Dr.Colombo’s chart, presented at page26 of

Chapter 3, which is available to you at tab 13.

108CR 2009/14, p. 63, para. 15 (Sands).
109
Argentina Scientific and Technical Report, Chap. 3.1, pp. 7-8, table 1 and fig. 1.
110Ibid., Chap. 3.1, p. 30, tab. 7 and Chap. 3.2, para. 3.2.3, table 7.

111Ibid., Chap. 3.1, pp. 7-8, tab. 1 and fig. 1. - 53 -

37. Now I must confess, Mr. President, that the first time I looked at this chart all I could

think, was how glad I am it is not my electrocardiogram. SRP levels, as measured by

Dr. Colombo, are virtually flatlined ⎯ extremely consistent and very low at all seven test sites, for

the entire 18-month period of the study, with only one exception, which occurred on

18 March 2009 ⎯ six weeks after the algal bloom on 4 February.

38. Apropos of that algal bloom, the Court will note that, according to this chart, during the

period leading up to and surrounding 4 February, there was no notable increase in SRP levels at the

sites representing the Botnia plant. In f act, if you examine the underlying data on which

Dr.Colombo’s chart is based, as we did, you will see that on the testing dates surrounding the

4February algal bloom, SRP levels at th e so-called Botnia-influenced sites were always

significantly below those in Argentina’s Ñandubaysal Bay 112. For example, on 14January2009,

the last testing date for SRP before the algal bl oom, the average SRP level at the three so-called

Botnia sites was 14.7micrograms per litre; while the average SRP level at the Ñandubaysal Bay

113
sites was 54.5, almost four times higher .

39. So what does Dr.Colombo’s study of SRP te ll us? It tells us four things. First, SRP

levels are higher in the parts of the river that are not influenced by Botnia than they are in the areas

allegedly influenced by it. Second, SRP levels at the so-called Botnia sites were consistently low

during the entire test period, which covered the first 18 months of the plant’s operation. Third,

there was no increase in SRP, let alone the extraordinary increase mentioned by Professor Sands, at

or near the Botnia plant prior to the 4February algal bloom. Fourth, there is no evidence of a

causal link between SRP emissions from the Botnia plant and the 4 February algal bloom.

40. And it tells us again: my good friends on Argentina’s team simply do not know the

evidence. In regard to SRP, it would appear that they do not even know their own evidence. This

is particularly troubling in light of the emphasis they placed on phosphorus emissions, and

especially SRP emissions, from the Botnia plant, and their alleged influence on water chemistry,

water quality and algal blooms.

112
Argentina Scientific and Technical Report, Chap. 3.1, pp. 26 and 30, fig. 10 and table 7.
11Ibid., Chap. 3.1, p. 30, table 7. - 54 -

41. On Thursday, Dr.Wheater told the Court that SRP levels at the Botnia site had

“doubled” prior to the 4 February 2009 algal bloom, and that this is what caused the bloom to

occur 114. Well, let us go back to Dr. Colombo’s chart and look again. [Slide 9 again.] Here again

is what the chart shows for 14January, Dr.Colomb o’s last test date before the algal bloom.

Flatlined. No pulse. The underlying data, on which the chart is based, show that the concentration

of SRP at so-called Botnia site U2, which is the one cited by Dr.Wheater, where rates allegedly

doubled, was only 14 micrograms per litre. There was no lower concentration level recorded at any

of the other test sites on that date. The SRP con centration levels at the test sites in Argentina’s

Ñandubaysal Bay on that date were 21 at site N5 , and 88, or more than five times higher, the

115
Botnia site, at N6 .

42. So how could Dr. Wheater tell us that SRP levels at the Botnia site had “doubled”? We

went back and checked again through all of Dr.Colombo’s data. Nothing in it supported

Dr. Wheater’s statement. It took us quite a wh ile, but eventually we discovered what Dr. Wheater

appears to have done, and the lengths to which he went to be able to make his statement to the

Court. [Slide 10.] This is a table containing all of the data showing Dr. Colombo’s test results for

SRP at all sites on all testing dates between 24 November 2007 and 17 April 2009 116. The blanks

are there because there are blanks in the data at certain test sites on certain dates. This table, which

we prepared using only Dr. Colombo’s data, and th e next slides that you will see in this series are

all located at tab 14. To show the Court in a few minutes what it took us several hours to uncover,

let us focus on the results for site U1, the upstream control site, site U2 nearest the Botnia plant

where Dr.Wheater claims that SRP levels doubled, and sites N5 and N6 in Ñandubaysal Bay,

which Dr. Colombo says are not influenced by the plant. [Slide 10 (a).] Again, it is at U2 where

Dr.Wheater claims that SRP levels “doubled” prio r to the February 2009 bloom. The Court will

not fail to be impressed, I believe, by the creativity Dr.Wheater employed to achieve this result.

First, he excluded or ignored three quarters of Dr.Colombo’s data, that is, everything before

11CR 2009/15, p. 27, para. 17 (Wheater).
115
Argentina Scientific and Technical Report, Chap. 3.1, p. 30, table 7.
11Argentina Scientific and Technical Report, Chap. 3.1, p. 30, tab. 7 and Chap. 3.2, para. 3.2.3, tab. 7. - 55 -

117
31 October 2008 . [Slide 10 (b).] He then averaged the values at each of the four test sites on the

eight dates that were left. [Slide 10 (c).]

43. He must not have liked the results. SRP was 39, as he said, at the Botnia site, U2, but

that was 15percent lower than the level at the upstream control site, U1. But the really big

problem for Dr.Wheater was that the data showed that SRP at the Botnia site was insignificant

compared with SRP in Ñandubaysal Bay. SRP at site N5 in the bay averaged nearly double the

level at the Botnia site, and SRP at N6, also in th e bay, averaged more than three times higher than

at the Botnia site. So what did Dr.Wheater do next? Well, since there is no support in

Dr.Colombo’s study, he looked elsewhere. A nd where did he look? He went to Botnia’s

pre-operational baseline testing data ⎯ the same data he told us on Thursday was absolutely

118
worthless and wholly inadequate to support their EIA ⎯ and he used the data from Botnia’s test

sites, which were not the same as the test sites used in Dr.Colombo’s study, and came up with a

119
figure of 20micrograms per litre . It is an entirely manufactured and meaningless number. To

say he compared apples to oranges would be to give it too much credit. At least apples and oranges

are both fruits. Yet, on this basis, on the basis of these exercises, the Court was told that SRP

levels had doubled, from 20 to 39, at site U2. Now if it wishes, the Court can retrace Dr. Wheater’s

steps, as we did, by following up on the citations to Professor Sands’s speech of last Wednesday at

page 63, footnotes 163 and 164 of the compte rendu.

44. Let us go back to Dr. Colombo’s data tabl e. If the purpose is to examine SRP levels at

the Botnia site nearest the time of the algal bloom of 4February, then let us look at the data for

January and February 2009. [Slide10 (d).] The figures for site U2 on those dates, the relevant

ones, are 14micrograms per litre on 14 January a nd 18.3 on 12February. So even if we

generously accepted Dr. Wheater’s artificial benchmark of 20 as a baseline level, the SRP levels at

the Botnia site on the testing dates closest in time to the algal bloom were below what they were

117
See CR 2009/15, p.27, para.17, fn. 42 (Wheater) (citingonly p.30 of Chap.3.1, which does not include
another table of Dr. Colombo’s SRP data, available at Chap. 3.2, para. 3.2.3, tab. 7).
11CR 2009/15, pp. 31-32 and 36, para. 25-27 and 38 (Wheater).

11See CR 2009/15, p.27, para.17, fn. 43 (Wheater) (citing to tab.A.4 in App.A of EcoMetrix’s March2009
report). - 56 -

before Botnia started operating. By contrast, SRP levels in Ñandubaysal Bay were much higher,

more than 300 per cent higher at site N6 around the time of the algal bloom.

45. The person on Argentina’s team who app ears to know at least something about the

evidence is Dr.Colombo. After all, as the head of the study reported in Chapter3, he developed

these data. And that probably explains why he did not make the same irresponsible claims that we

heard from Argentina’s other advocates about the doubling of SRP levels near the Botnia plant. In

fact, although he spoke for an hour last Wednesday, Dr.Colombo said absolutely nothing ⎯

nothing ⎯ about phosphorus concentrations at or near the Botnia plant or anywhere else in the

river. He said nothing about SRP concentrations. That is quite remarkable, when you think about

it. Notwithstanding the emphasis Argentin a’s counsel placed on phosphorus, and SRP

concentrations in particular, throughout their four days before the Court, and their insistence that

the plant caused increased phosphorus concentrations in its area of influence, which in turn led to

an unprecedented algal bloom, the member of Argentina’s team who actually studied phosphorus

concentrations chose to say nothing about them.

46. Having shown that Argentina’s own ev idence, and that Dr.Colombo’s own study,

establish that SRP and total phosphorus emissions from the Botnia plant do not produce higher

concentrations of phosphorus in the river ⎯ in other words, that they do not accumulate at or near

the plant as Professor Sands and Dr. Wheater told us , but are instead quickly diluted and dispersed

and washed down the river ⎯ let me now turn briefly to the evidence presented by Uruguay. It

consists of the results of the water chemis try testing that DINAMA has done from August2006,

more than a year before the Botnia plant started operating, to the present120. [Slide11.] As

Professor Boyle mentioned, DINAMA has regularly tested the water chemistry at 16different

sites ⎯ shown at tab 15 in the judges’ folder ⎯ which, of course, is nine more than the seven sites

tested by Dr.Colombo in Chapter3 of Argentin a’s study. Six of DINAMA’s testing sites are

upstream from the plant (as compared to just one in Dr. Colombo’s study). Three of DINAMA’s

12See Uruguay’s Submission of New Documents (30 J une 2009), Ann.S2, DINAMA Performance Report for

the First Year of Operation of the Botnia Plant and the Environmental Quality of the Area of Influence (May 2009). - 57 -

sites are located in genuinely close proximity to the plant, and seven are spread out at various

distances downstream 121.

[47.i.]e Here are the results of tests performed in December2008 and

February 2009 122. As you can see on the screen, and at tab16, there are no real variations in

phosphorus levels in either De cember or February across testi ng sites, except at one point ⎯ the

precise point where the Fray Bentos sewage is dischar ged into the river. Even then, the effects of

the sewage discharge are rapidly dispersed, as reflected in the lower levels of phosphorus recorded

at the next three downstream sites.

[14i..]e This chart, also at tab17 of the fold er, was also prepared by DINAMA, and

shows the average level of phosphorus in the full year 2008, and in the first half of 2009, at each of

DINAMA’s 16test sites. It compares this with the average level at each test site during the

baseline period, before the Botnia plant began operating 123. Unlike Dr. Colombo, DINAMA does

have baseline data for the pre-operational period which can be compared to the data collected since

Botnia began operating. [Slide 13 (a).] The baseline here is in pink. [Slide 13 (b).] The average

phosphorous levels at all test sites for 2008 are in green. As you can see, at every single station the

average level of phosphorus in2008 was below the baseline level. This includes the levels of

phosphorus at each of the three test sites most directly influenced by the Botnia plant, numbers 7, 8

and 9, which were all below baseline levels. Afte r more than a full year of operation, phosphorous

concentration levels were lower than they were before the plant started operating.

49. The results are similar for2009. [Slide13 (c).]. Again, the baseline is pink. 2009data

are in blue. As the chart shows, average phosphorus levels at all locations in the first half of 2009

are not very different from what they were before the Botnia plant began operating. However, if

we look particularly at the Botnia plant, at site7, and downstream from it, we can see that

phosphorous levels in the first half of 2009 were equal to or lower than the baseline levels ⎯ that

is, lower even than the levels of phosphorus before the plant began operating.

121
Ibid. See also DINAMA July 2009 Water Quality Report.
122Ibid; DINAMA Algae Bloom Report (July 2009), Spanish original available via links under the heading
“Floración de cianobacterias en el río Uruguay el 04/02/2009” at
http://www.mvotma.gub.uy/dinama/index.php?option=com_content&task=view&… . Translation

submitted to the Court on 14 September 2005.
123DINAMA July 2009 Water Quality Report, p. 18, Fig. 4.24. - 58 -

50. Now, it is not Uruguay’s position that the Botnia plant reduces the levels of phosphorus

in the Uruguay river. Uruguay makes no such clai m. The fact that phosphorus is lower now than

before the plant started operating reflects natural variation in phosphorous levels from year to year.

But, it is worth keeping in mind, that the first part of 2009, which coincides with the South

American summer, was characterized by extreme drought and very low water levels 124. This

means that any undispersed phosphorous effluent from the Botnia plant to the Uruguay river,

would have been more readily detected, in the form of increased concentration levels. That this is

not the case, in the parts of the river affected by the Botnia plant, further demonstrates that the plant

does not increase phosphorous concentrations in the river. But we do not need Uruguay’s evidence

to prove this. Argentina’s own evidence proves it. In particular, Argentina’s own evidence proves

that the Botnia plant has not added to the concentration of phosphorus in the river at any time since

it began operating, and certainly not at any time proximate to the 4 February algal bloom. The

algal bloom cannot be blamed on phosphorous emissi ons from the plant. Dr. Colombo’s own data

prove this.

IV. N ITROGEN

51. So let us move on to nitrogen, the second of the two nutrients emitted by the Botnia plant

that Argentina’s counsel have attempted to link to algal growth and, in particular, the algal bloom

of 4 February.

52. Just as Dr.Colombo failed to support the representations to the Court by Argentina’s

counsel about phosphorous concentrations, so too he maintained a studied silence about nitrogen

concentrations. And with good reason. Here is what Dr.Colombo concluded about nitrogen

concentrations in the Scientific and Techni cal Study submitted by Argentina on 30June, in

Chapter 3, at page 24: “nitrogen nutrients are sp atially rather homogeneous”. In other words, they

are similar across all of his test sites. In other words, they are not higher at the test sites allegedly

affected by the Botnia plant.

53. No wonder Dr.Colombo told us nothing about nitrogen concentra tion levels. His data

on nitrogen completely contradict Argentina’s argument that high nitrogen emissions from the

124
See Uruguay’s Comments on Argentina’s New Documents (15 July 2009), Ann. C5 (17 Feb. 2009). - 59 -

Botnia plant caused high concentrations of nitrogen in the parts of the river affected by the plant,

which, in turn, stimulated high algal growth, incl uding the algal bloom of 4 February. Unlike the

other members of Argentina’s team, Dr.Colombo knows the evidence that he himself developed.

He knows that, according to his own study, nitrogen concentrations have been “spatially rather

125
homogeneous,” and therefore, no higher at the Botnia site than elsewhere.

54. Uruguay has also developed evidence on nitrogen, and it confirms the results of

Dr.Colombo’s study. DINAMA’s test results, at tab18, likewise show that nitrogen emissions

from the Botnia plant did not add to nitrogen concentr ation levels in the river, or contribute to the

algal bloom of 4February. [Slide14.] Testing performed in December2008 and February2009,

before and after the algal bloom, show that on both dates nitrogen levels at all “Botnia influence”

sites were below the levels at the six upstream cont rol sites, and equivalent to the levels at the

seven downstream sites, with one exception: there was an elevated level of nitrogen detected in

December2008 at site 13 ⎯ the one located directly in front of the pipes discharging untreated

126
sewage from Fray Bentos into the river . There were no abnormal nitrogen levels anywhere

during February, the month of the algal bloom. [Slide 15.] The next chart, produced by DINAMA

as part of its semi-annual monitoring report for 2009, and available at tab19, shows the average

levels of nitrogen across all 16DINAMA test sites 127. [Slide15 (a).] Again, the pink line

represents the baseline, that is, the nitrogen concentration levels at the various test sites during the

pre-operational period before the Botnia plant began to function. [Slide15 (b).] The blue line

represents the average nitrogen concentration levels at all test sites for the first six months of 2009.

Quite obviously, nitrogen levels in 2009 are below baseline levels at all sites. Again, it is not

Uruguay’s argument that the Botnia plant has decreased nitrogen levels in the river. But a

conclusion that can be drawn from these data ⎯ the same conclusion that can be drawn from the

data produced by Argentina ⎯ is that the plant has not caused an increase in nitrogen levels.

125
New Documents submitted by Argentina, Vol. I, Chap. 3.1, p. 24.
12See Uruguay’s Submission of New Documents, 30 June 2009, Ann. S2, DINAMA Performance Report for the
First Year of Operation of the Botnia Plant and the nvironmental Quality of the Ar ea of Influence, May2009;

DINAMA July 2009 Water Quality Report; DINAMA Algae Bloom Report, July 2009.
12DINAMA July 2009 Water Quality Report, p. 17, Figure 4.23. - 60 -

55. Mr.President, the evidence, all of the evidence, including Argentina’s own evidence,

whether considered separately or together with DINAMA’s evidence, shows conclusively that the

Botnia plant has not increased either phosphorous or nitrogen concentrations in the Uruguay

river ⎯ not at any time during its first 18 months of operation, and most certainly not at any time

proximate to the algal bloom of 4February. Th e evidence, including especially Argentina’s own

evidence, refutes Argentina’s claim that phosphorous or nitrogen emissions from the plant

accumulated in the river, increased the concentrati on levels in the water, stimulated algal growth,

or caused the bloom of 4 February. The cause of that algal bloom must lie elsewhere. Tomorrow,

we shall see exactly where. But before we ge t there, let us examine the evidence on one more

substance measured by Argentina as part of its Scientific and Technical Study. Let us examine

Dr. Colombo’s test results regarding chlorophyll.

V. C HLOROPHYLL

56. Mr. President, Members of the Court, it may come as some relief to you to know that I

do intend to finish early today. Now, chlorophyll is not produced or emitted by the Botnia plant.

Not even Argentina suggests that it is. Chlorophyll, as I am sure we all remember from our high

school biology or botany classes, is the substance that gives plants, including the algae that

bloomed on the Uruguay river last February, their green colour. It is a component of the algae. It

is vital to the process of photosynthesis, by which the chlorophyll turns sun light into food so that

the algae will grow and develop 12. Where there is algae in the river, therefore, there must be

chlorophyll. An abundance of chlorophyll in a body of water like the Uruguay river tends to mean

an abundance of algae 12.

57. That is why Argentina measured chlorophy ll. If it could establish where in the river

there were high concentrations of chlorophyll, it could determine where there were high

concentrations of algae, and algal proliferati ons and potential blooms similar to the one that

occurred on 4 February. Obviously, they were hoping to find high concentrations of chlorophyll at

test sites supposedly influenced by the Botnia plant. Well, you can already surmise, without me

128
DINAMA Algae Bloom Report (July 2009), p.8. See al so, e.g., “Chlorophyll,” Wikipedia, available at
http://en.wikipedia.org/wiki/Chlorophyll.
12Ibid. - 61 -

telling you, what the results of Argentina’s tests were. You can assume this because nobody on

Argentina’s team said anything about chlorophyll la st week. Not a single word about chlorophyll

in four days of speeches, even though Argentina te sted specifically for it. You can be quite sure

that if they had found what they were looking for, high levels of chlorophyll indicating the

presence of high levels of algae at Botnia’s doorstep, you would have heard about it. Their total

silence on the subject allows you to assume that chlo rophyll levels at or near the plant were lower

than, or at least no higher than they were elsewhere in the river.

58. But you do not need to make any assumptions. The actual data collected by Argentina

are better evidence. And better for Uruguay. [Slide 16.] Here, and at tab 20, is what Dr. Colombo

concluded in Chapter 3 of Argentina’s study about ch lorophyll levels in the river, based on regular

samples taken from seven sites every two weeks between November2007 and October2008, the

first full year of the plant’s operation: “The chlorophyll is low overall...; in the bay

130
[Ñandubaysal Bay] the averages double those in the Uruguay River . . .” As I said, the bay, of

course, is Ñandubaysal Bay, in Argentina, which Arge ntina repeatedly tells us is not influenced by

the Botnia plant 131. When Dr.Colombo refers here to the Uruguay river, he means the area

adjacent to the Botnia plan t, because three of his four test sites in the river are located in what he

called the “area of Botnia’s influence” 132. This is confirmed by another of Argentina’s charts,

which is figure 10 at page 26 of Chapter 3 of their study, and also at tab 21 of the folder.

59. As shown in the chart, and especially in the data on which the chart is based, which we

133
reviewed, tests were conducted on 21 di fferent days over an 18-month period . On 20 of those

days, chlorophyll was globally low, and lowest at th e sites that Argentina te lls us were influenced

by the Botnia plant. On just one out of those 21 days was there a significant spike in chlorophyll

levels, as you can see, and that was in March2009, a month after the algal bloom of 4February.

With regard to the 4 February algal bloom, and its cause, the chart and the underlying data are quite

130Argentina Scientific and Technical Report, Chap. 3.2, para. 4.2.2.

131Ibid., Chap. 3.2, para. 4.1.2 (arguing that Argentina’s scientists were able “to clearly set the bay apart, as it acts
as an ecosystem that is relatively detached from the Uruguay river” and that the data “shows that the bay is an
environment that is detached from the short term fluctuations of the river”), para. 4.3.1.2 (pointing to data that “reinforces
the interpretation that the bay is an environment that is re latively detached from the river”) and para. 1 (arguing that the

Bay “is apparently not tied to the river’s natural and human-derived short-term variations”).
132CR 2009/14, p. 53, para. 28 (Colombo).

133Argentina Scientific and Technical Report, Chap. 3.1, p. 31, table 8 and Chap. 3.2, para. 3.2.3, table 8. - 62 -

informative. What Argentina’s chart and data s how is that chlorophyll levels, and therefore algae

levels, were very low at the test sites allegedly influenced by the Botnia plant on 15January and

12 February ⎯ the two test dates closest in time to the occurrence of the bloom. On those dates,

chlorophyll levels were significantly higher in Arge ntina’s Ñandubaysal Bay than they were at the

so-called Botnia sites. Take 15January2009, for example, the last testing date prior to the algal

bloom. According to Argentina’s data, the average chlorophyll level at the three test sites allegedly

in the Botnia influence zone was 2.5micrograms per litre. The same day, the levels at the

Ñandubaysal Bay sites averaged 9 micrograms per litre, or more than 350 per cent higher than they

were at the Botnia sites 134. So, as of the last testing date before the algal bloom, there was no

build-up of algae at or near the Botnia plant. But there was in the Bay.

60. Dr.Colombo’s findings on chlorophyll are corroborated by satellite photography, at

tab22 of your folder. [Slide18.] This is a satellite photo taken by a China/Brazil satellite on

135
2February, two days before the algal bloom was observed . Through a well-established and

accepted algorithmic process developed by Ekstrand in 1992, the presence and relative levels of

136
chlorophyll can be differentiated in various colours . Red indicates the highest level of

chlorophyll, yellow the next highest, down to green and down to blue, which is the lowest. As you

can see from this photograph, the highest levels of chlorophyll and algae on 2 February 2009 ⎯ the

red-coloured areas ⎯ were in Argentina’s Gualeguaychú ri ver, Ñandubaysal Bay, and slightly

downstream along the Argentine coast. Argentina itself has explained that it takes some days for

proliferations like this to fully develop into an algal bloom. It would appear from this photo that, as

of 2February, high levels of algae in Ñandubaysal Bay were be ing transported to the Uruguay

river.

61. For a comparison, let us look at the area surrounding the Botnia plant. Blue. All blue.

As the legend on the photo indicates, this means there were relatively low, in fact the lowest, levels

of chlorophyll and algae present at and near the Bo tnia plant on 2February, two days before the

algal bloom. Looking further upstream, we can see other places in red, although the photo is

134
Argentina Scientific and Technical Report, Chap. 3.1, p. 31, table 8.
135
CBERS-2B (2 Feb. 2009, 14:02). See also DINAMA Algae Bloom Report, p. 10.
13Ekstrand, S. (1992), “Landsat TM based quantification of chlorophyl l-a during algae blooms in coastal
waters”, International Journal of Remote Sensing, Vol. 13, Issue 10, pp. 1913-1926. - 63 -

obscured by cloud cover, we can begin to see further upstream other places in red where

chlorophyll levels were very high on the eve of the algal bloom, indicating the likely presence of

algal abundances at those upriver locations as well as in the Ñandubaysal Bay.

62. Mr.President, we are now ready to move to 4February2009, the date the algal bloom

was observed, and draw our conclusions, from the evidence, as to what caused it. I suggest

however, that this might be a good place for an in termission in my speech. And that, with your

permission, if I may, I stop here for today, and resume from this point tomorrow morning at 10:00?

The VICE-PRESIDENT, Acting President: Thank you, Mr. Reichler. If you think this is a

good moment to stop, you do that. I do need to recall that the Parties are under no obligation to use

all the time allocated to them for the presentation of their argument. So, the Court now rises, and

will resume tomorrow morning at 10 o’clock.

Mr. REICHLER: Thank you, Mr. President.

The Court rose at 12.50 p.m.

___________

Document Long Title

Audience publique tenue le lundi 21 septembre 2009, à 10 heures, au Palais de la Paix, sous la présidence de M. Tomka, vice-président, faisant fonction de président en l'affaire relative à des Usines de pâte à papier sur le fleuve Uruguay (Argentine c. Uruguay)

Links