Non-Corrigé
Uncorrected
CR 2009/18
Cour internationale International Court
de Justice of Justice
LAAYE THHEGUE
ANNÉE 2009
Audience publique
tenue le mercredi 23 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 Wednesday 23 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,
Mme Maria E. Milanes-Murcia, MA, LLM, JSD Candidate à la McGeorge SchoolofLaw de
l’Université du Pacifique, doctorante à l’Université de Murcia, admise au barreau d’Espagne,
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,
Ms Maria E. Milanes-Murcia, M.A., LLM; JSD Candidate, McGeorge School of Law, University
of the Pacific; PhD Candidate, University of Murcia; admitted to the Bar of Spain
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 -
The VICE-PRESIDENT, Acting President: Please be seated. The sitting is open and I give
the floor to Professor Alan Boyle. You have the floor, Sir.
Mr. BOYLE: Mr. President, Members of the Court, may I begin this morning by saying that
Mr. Reichler will respond to Judge Bennouna’s question tomorrow morning.
T HE LAW ON POLLUTION PREVENTION , EIA, MONITORING ,AND THE
ECOLOGICAL BALANCE OF THE RIVER
1. This morning I propose to deal with some of the central legal issues that go the heart of
Argentina’s environmental case. First, I will address the key provisions of the 1975Statute
concerning pollution and protection of the river’s ecological balance ⎯ that is, Articles 40, 41 and
36. I will argue that with respect to the Botnia plant, Uruguay is not in breach of any of those
Articles and, in that context, I will also consid er the role played by CARU water quality standards
in the architecture of the Statute. Thereafter , I will set out Uruguay’s ar guments on environmental
impact assessment and monitoring. Finally, I will say something about burden of proof and draw
some conclusions. Professor McCaffrey will then follow me to the podium.
I. THERE HAS BEEN NO VIOLATION OF PROVISIONS OF THE 1975 STATUTE
OF THE R IVER URUGUAY ON PREVENTION OF POLLUTION
AND PROTECTION OF THE AQUATIC ENVIRONMENT
2. So, let me start with the environmental provisions of the Statute.
3. Argentina’s principal legal claims are that Uruguay has violated Article 41 of the Statute
on prevention of pollution1, and Article 36 on the “ecological balance” of the river.
4. Both arguments are founded on a single fact ual premise: that discharges from the Botnia
plant constitute pollution so harmful to the rive r’s environment that they are prohibited by the
2
1975 Statute . If, as I said on Monday (CR2009/16), the plant does not “pollute” within the
1
Argentina’s claim also purports to be based oticles35 and 37. These arguments may be dismissed
summarily. Article35 provides that “[t]he Parties unke to adopt the necessaryeasures to ensure that the
management of the soil and woodland and the use of groundwater and the waters of the tributaries of the river do not
cause changes which may significantly impair the régime of the river or the quality of the waters”. However, Argentina
does not make any arguments that are based on Uruguay’nagement of soil or woodl ands. Nor has it made any
allegations concerning the waters of tri butaries. Article37 provides that “[t]he Parties shall agree on rules governing
fishing activities in the river with rega rd to the conservation and preservation of living resources”. However, nothing in
the Memorial states a claim based on “fishing activities”.
2MA, paras. 5.20-5.53, 5.78-5.83. - 13 -
meaning of the Statute, then there can be no subs tance to Argentina’s arguments on Article 36, and
Uruguay has plainly done all that it is required to do by Article 41.
A. Effluent from the Botnia plant has not caused pollution of the River Uruguay
5. So let me then turn to my first proposition, which is that effluent from the Botnia plant has
not caused pollution of the River Uruguay. Article 40 of the Statute defines “pollution” in these
terms: “For the purposes of this Statute, pollution shall mean the direct or indirect introduction by
man into the aquatic environment of substances or energy which have harmful effects.”
6. Two elements of this definition merit attention. First, it refers only to the “aquatic
environment”. It does not cover air polluti on or odour that has no effect on the aquatic
environment. Secondly, there must be “harmful effects” on the aquatic environment. Now, the
CARU Digest defines “harmful effects” in the following terms. It says:
“[A]ny alteration of the water quality that prevents or hinders any legitimate use
of the water, that causes deleterious effects or harm to living resources, risks to human
health, or a threat to water activities including fishing or reduction of recreational
activities.”3
As will be readily apparent to the Court from th ese texts, the introduction of substances into the
river is not pollution per se, but it only becomes pollution when those substances start to cause any
of the harms listed above. An obligation to preven t “pollution” is thus an obligation to prevent
effluents or other substances from reaching a level or concentration that is likely to cause harm to
the aquatic environment. That is the key point.
7. Now, in order to make sense of Article40, it is therefore necessary to make a judgment
about what substances have potentially harmful effects and at what concentrations. That,
Mr.President, Members of the Court, is where CARU standards become relevant. CARU is
empowered by Article56 of the Statute to draw up rules on prevention of pollution, among other
4
matters. On that basis it has adopted water quality standards ⎯ and I referred to those on
Monday. Once the parties have agreed water quality standards in CARU, these standards serve to
define what constitutes pollution for the purposes of Article40. In respect of each substance for
which CARU has established a standard, it can be presumed that water which meets that standard is
3
CARU Digest, Subject E 3, Title 1, Chap. 1, Sec. 2, Art. 1.5.c, CMU, Vol. IV, Ann. 60, p. 1.
4Standards are listed in CARU Digest, Subject E 3, Title 2, Chap. 4, CMU, Vol. IV, Ann. 60, pp. 7-13. - 14 -
not polluted and that effluent discharges that do not cause this level to be exceeded are not harmful
to the aquatic environment . If that were not the case ⎯– if a State could be held responsible for
“pollution” at levels which do no t exceed the agreed standard ⎯ then, plainly, CARU standards
would serve no useful purpose.
8. In Uruguay’s submission, CARU water quality standards are the principal means by which
the parties have given effect to the regulatory obligations imposed by Article41 of the Statute.
And Argentina agrees. It admits that the environm ental rules contained in the relevant sections of
the CARU Digest are ⎯ and I will quote from its Memorial ⎯ “l’expression directe de la volonté
des parties et de leur interpréta tion des dispositions du Statut de 1975” 5. In a 1990 diplomatic
Note, Argentina stated that CARU sta ndards set forth in Subject E3 of the Digest ⎯ and I will
quote again ⎯ “déterminent les principes normatifs essentiels pour prévenir la contamination des
6
eaux du fleuve et définir les standards de qualité de ces eaux”
.
9. Specifically, the purposes of the standards prescribed in Subject E 3 include the following:
⎯ to protect and preserve the aquatic medium and its ecological equilibrium;
⎯ to ensure any legitimate use of the water considering long-term needs and particularly human
consumption needs; and
⎯ to prevent any new form of pollution and to procure its reduction when the values of the
standards adopted for the different legitimate uses of the waters are exceeded.
10. Two aspects of this wording deserve emphasis: first, the obligation of the parties is to
prevent legitimate uses of the river from causi ng water quality standards to be exceeded. This
confirms, in Uruguay’s view, that CARU standard s serve as the basis against which the obligation
to prevent and reduce pollution in Article41 is measured. And, as I explained on Monday, the
EcoMetrix Report, DINAMA monitoring, and even Argentina’s own scientific report all establish
that effluents from the Botnia plant have neither resulted in any change in water quality nor caused
any failure to meet CARU standards ⎯ and Argentina does not even allege that they have. For that
reason, effluent discharged from the plant cannot be “pollution” within the terms of the Statute.
5MA, para. 3.147 (“the direct expression of the desire of the two parties and their interpretation of the provisions
of the 1975 Statute”).
6MA, para.3.148 (“determine the essential normative princi ples for preventing the pollution of the river’s water
and define the quality standards of those waters”). - 15 -
Even if Uruguay were wrong in interpreti ng Article 41 as an obligation of conduct ⎯ and that is a
point I will come back to in a moment ⎯ rather than an obligation of result, it would matter little if
there is in fact no prohibited pollution, which, of course, is precisely Uruguay’s position.
11. Secondly, the wording of the Digest also shows that water which meets CARU water
quality standards cannot be a threat to the long-term needs of the river as defined by Argentina and
Uruguay jointly. That, quite simply, is why all of Argentina’s arguments about environmental risk
to the river must fail. CARU standards are designed ⎯ in the words of the Digest ⎯ to meet the
“long-term needs” of river protection ⎯ the “long-term needs” of river protection. This
necessarily means that they are intended by the par ties to ensure sustainable use of the river and
protection against long-term risks. In his speech yesterday (CR2009/17) ProfessorMcCaffrey
drew attention to the importance of sustainable use of a watercourse in the 1997United Nations
Convention on International Wate rcourses and it did also in the 1975Statute. The terms of the
CARU Digest are entirely consistent with that importa nt development in the contemporary law of
international watercourses. They firmly contradi ct any suggestion that water quality standards are
intended to serve only the short-term needs of the parties.
12. Argentina asserts that the River Uruguay is highly sensitive to nutrient discharges,
particularly, nitrogen and phosphorus, causing algal blooms. The obvious answer to this is that the
parties have already catered for any sensitivity through the water quality standards adopted by
CARU or by the parties themselves in accordance with Articles36 and 41 of the Statute. These
standards are, after all, designed precisely for the River Uruguay ⎯ they do not represent some
hypothetical norm applicable to all rivers. Th ey fit the conditions of the River Uruguay as
perceived by the parties. Argentina cannot have it both ways. If CARU standards are adequate,
then they will protect the river and its ecosys tem over the long term, however sensitive it may be,
and the only important question then, is whether Uruguay has complied with them ⎯ which of
course it has.
13. If, alternatively, Argentina is really arguing that CARU water quality standards are not
adequate to protect the river, then why did Arge ntina accept them in the first place and why has it
not subsequently proposed that CARU should strengthen them? CARU water quality standards are
the product of mutual agreement of the parties, and Professor McCaffrey will say more on that after - 16 -
me. Argentina cannot assert that CARU standards are inadequate when they have its express
consent and it had an equal role in developing. These standards can be changed by the parties, and
they have been changed, as ProfessorMcCaffrey pointed out yesterday. But if, for example,
phosphorus is not regulated by CARU ⎯ and it is not ⎯ that is because the parties, including
Argentina, have chosen not to regulate it.
14. So the essential point on Article40 is that it cannot be interprete d or applied without
reference to CARU standards.
B. Uruguay complied with Article 41
15. So we can now turn to Article 41, the principal provision on environmental protection.
16. Article41, let me remind the Court, provides that the parties undertake, “[w]ithout
prejudice to the functions assigned to the Commission in this respect”, to
“protect and preserve the aquatic environm ent and, in particular, to prevent its
pollution, by prescribing appropriate rules and measures in accordance with applicable
international agreements and in keeping, where relevant, with the guidelines and
7
recommendations of international technical bodies” .
17. Now, as Uruguay pointed out in its Counter-Memorial, Article41 creates an obligation
of due diligence 8. In this respect it indeed establishe d a precedent which was subsequently
followed in other watercourse treaties and adopted by the International Law Commission in the
form of Articles7 and 21 of what is now the United Nations Convention on International
Watercourses 9. The International Law Commission Commentary and learned commentators
7Statute of the River Uruguay (herei nafter “1975Statute”), Art.41 (a), 26Feb.1975, CMU, Vol.II, Ann.4.
Argentina does not have a separa tely cognizable claim under Art.27 because that Article serves only to clarify that the
provisions of Arts. 7 et seq. are applicable to industrial facilities.
8CMU, paras.4.9-4.13 and 4.69-4.70; see also II YILC, 1994, Pt.2, p.103, para.(4) (“[t]he State may be
responsible... for not enacting necessary legislation, for not enforcing its laws... or for not preventing or terminating
an illegal activity, or for not punishing the person responsible for it”).
9Art. 7 of the United Nations Convention provides:
“ Obligation not to cause significant harm
1. Watercourse States shall, in utilizing an international watercourse in their territories, take all
appropriate measures to prevent the causing of significant harm to other watercourse States.
2. Where significant harm nevertheless is caused to another watercour se State, the States whose use
causes such harm shall, in the absence of agreement to such use, take all appropriate measures, having
due regard for the provisions of articles 5 and 6, in consultation with the affected State, to eliminate or
mitigate such harm and, where appropriate, to discuss the question of compensation.”
Art. 21 provides:
“ Prevention, reduction and control of pollution - 17 -
generally agree on viewing Articles7 and 21 of the United Nations Convention as obligations of
due diligence, not of result 10. Uruguay submits that Article 41 of the Statute should be read in the
same way. If that is the case, then the Court is required to consider, firstly, what is meant by the
phrase “prescribing appropriate rules and measures in accordance with applicable international
agreements”, and so on. And, secondly, it requi res the Court to consider whether Uruguay has
been duly diligent in approving the type of technology applied by the Botnia mill.
18. But let me just pause for a moment before I develop those two points. Uruguay does not
accept Argentina’s alternative argument that Article 41 creates an obligation of result, but let us
assume arguendo that it does, then the relevant results ⎯ which must be the protection of the
aquatic environment and the prevention of pollution ⎯ had, indeed, on the evidence in this case,
been achieved. If, as argued earlier, Botnia e ffluents have not altered water quality or caused
CARU water quality standards to be exceeded, then pollution as defined by the Statute has been
prevented. And if, as also argued earlier, the object and purpose of CARU water quality standards
is to ensure long-term protection of the aquatic e nvironment, then to that extent, compliance with
these standards should secure that result. In any event the evidence shows that there has been no
damage to the aquatic environment resu lting from Botnia’s effluent discharges ⎯ even the algal
1. For the purpose of this article, ‘pollution ofan international watercourse’ means any detrimental
alteration in the composition or quality of the waters of an international watercourse which results
directly or indirectly from human conduct.
2. Watercourse States shall, individually and, wher e appropriate, jointly, prevent, reduce and control the
pollution of an international watercourse that may cause significant harm to other watercourse States
or to their environment, including harm to human health or safety, to the use of the waters for any
beneficial purpose or to the living resources of the watercourse. Watercourse States shall take steps to
harmonize their policies in this connection.
3. Watercourse States shall, at th e request of any of them, consult with a view to arriving at mutually
agreeable measures and methods to prevent, reduce and control pollution of an international
watercourse, such as:
(a) Setting joint water quality objectives and criteria;
(b) Establishing techniques and practices to address pollution from point and non-point sources;
(c)Establishing lists of substances the introductioof which into the waters of an international
watercourse is to be prohibited, limited, investigated or monitored.”
10
See II YILC, 1994, Pt.2, pp.103 and 124; McCaffrey and Sinjela, 92 AJIL, 1998, 100; Bourne, 35 CanYIL,
1997, pp.223-225. An explicit requirement to “exercise due d iligence” in the ILC’s 1994 draft of Art.7 was altered to
read “take all appropriate measures” in the 1997Convent ion text, but no change in meaning results. The same
phraseology is used in many other environmental tr eaties, including the 1992United Nations ECE Transboundary
Watercourses Convention, Art.2(1). Ot her variants include “all measures necessary”. See Part12 of the 1982United
Nations Convention on the Law of the Sea. Compare the ILC’s 1991 draft Art. 7, which reads: “Watercourse states shall
utilise an international watercourse in such a way as not to cause appreciable harm to other watercourse states.” - 18 -
bloom of 4 February, as we saw yesterday, could not have been caused by effluent from the Botnia
mill.
19. So, let me come back then, to Article 41. I have only two simple propositions about
Article 41:
⎯ firstly, Uruguay has discharged its duty to re gulate effluent discharges in accordance with
water quality and discharge standards established by CARU or by the parties acting pursuant to
Article 41; and
⎯ secondly, that the Botnia plant’s technology meet s all the requirements of pollution prevention
and environmental protection set out in the 1975 Statute, including the precautionary principle.
20. Now, let us look at each of these.
C. Uruguay has discharged its duty to regulate effluent discharges in accordance
with water quality and discharge standards established by CARU
or by the parties acting pursuant to that Article
21. With the exception of nonylphenols, Argentina does not argue that Uruguay has failed to
implement its obligation to adopt regulations pursuant to Article41. And, as the Court will no
doubt recall, Uruguay’s Decree 253/79 on the regula tion of water quality sets maximum discharge
limits and water quality standards for va rious pollutants, including phosphorus 11. The permits
12
granted to the Botnia plant require it to comply with all of these regulations . And of course, the
monitoring reports we looked at on Monday confirm that discharges of effluent from the plant are
13
well below the required levels .
22. Further discussion of nonylphenols is probably academic at this stage. But let me just
note that Argentina does not regulate them. CARU does not regulate them. The POPs Convention
11
CMU, paras. 4.19 and 4.39.
12CMU, para. 4.33.
13Third EcoMetrix Report, Mar.2009, pa ra.3.3.3. Uruguay’s Submission of New Documents, Ann.S7, p.34;
DINAMA, Sixth Month Report on the Botnia Emi ssion Conrol and Environmental Performance
Plan: Nov2.008-May2009, Jul2009, (hereinafter “DINAMA July 2009 Botnia Performance Report”),
pp.5, table2: 9, graphic6; 14 table4; 17, gr aphic21; and 18, table5. Original Spanish version
available via link en titled “Informe Emisiones Seme stre Nov. 2008-May 2009” at
http://www.mvotma.gub.uy/dinama/index.php?option=com_docman&Itemid=312. Translation submitted to the Court on
14 Sep. 2009. See also DINAMA Report for the First Year of Operation of the Botnia Plant and the Environmental
Quality of the Area of Influence, May2009 (hereinafter “D INAMA First Year Botnia Performance Report”), p.3 and
App. IV, p. 30, Uruguay’s Submission of New Documents, Ann. S2. - 19 -
does not regulate them. It is difficult to see that there can be any basis for saying that Uruguay is in
breach of Article 41 with respect to nonylphenols.
23. Uruguay’s commitment to protect the Uruguay river is reflected in its legal system,
14
including its Constitution . The details of Uruguayan environm ental law were explained to the
Court at length in 2006. They are set out again in the Counter-Memorial, and I will not bore you
by repeating them here. The IFC’s technical e xperts concluded that “the permit setting process
used by DINAMA is practical and rigorous” 15. Again, I will not repeat the details here, save to
note one point, that industrial plants ⎯ including the Botnia plant ⎯ must renew their permits
every three years 16. The renewal process includes revision and updating of the project’s
environmental management plans and approvals with respect to emissions, including effluent
17
discharges . And, at each renewal, DINAMA has the power, if necessary, to impose further
safeguards. It may even, if necessary, suspend allegedly dangerous activities while the appropriate
18
investigations are undertaken .
24. So, I think, Mr.President, Members of the Court, it will probably be clear now that
Uruguay has done all that could reasonably be required of it by Article 41 to “prescribe appropriate
rules and measures” and to impl ement CARU water quality standard s. It has done so to a far
higher standard than Argentina. So there is no breach of Article 41 in that respect.
D. The plant’s technology meets all the pollution prevention and environmental protection
requirements of the 1975 Statute, and the precautionary principle
25. But what about the technology that is used in the mill? Is it good enough to protect and
preserve the aquatic environment as required by Article41? Throughout these proceedings
Uruguay has sought to reassure Argentina and th e Court that the Botnia pulp mill represents
modern, state-of-the-art technology employed in other technologically advanced developed States.
As the record amply demonstrates, the Botnia plant is comparable to other modern mills
14
See 1967 Constitution of Uruguay, Art. 47, CMU, Vol. II, Ann. 5.
15
Final CIS, Ann. A, p. A6.7, CMU, Vol. VIII, Ann. 174.
16Decree No.349/005, Environmental Impact Assessment Regulation revision, Art. 23, 21 Sep. 2005, CMU,
Vol. II, Ann. 24.
17Ibid., Art. 24, para. 2.
18Ibid., Art. 24, para. 2. - 20 -
19
worldwide . As you have heard, this technology virtually eliminates the risk of pollution and
environmental damage.
26. The choice of this advanced technology is a remarkable one for a small developing
country to make. And Uruguay is pleased that Argentina shares its view that sub-standard
industrial technology is not appropriate for countries at their level of development. What divides
them is thus not any difference over law or policy, but simply over whether the Botnia plant meets
the best available techniques (BAT) standard. Uruguay has no doubt that it does, for reasons
already elaborated yesterday.
27. But Uruguay’s preference for the best ava ilable technology and operational techniques is
important for two reasons. Fi rstly, it should demonstrate once again that Uruguay has complied
with its obligation to take measures necessary to “ensure that activities within their jurisdiction and
control respect the environment of other States”, to quote from the Nuclear Weapons Advisory
Opinion (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports
20
1996 (I), pp. 241-242, para. 29) .
28. My earlier submissions will have demonstrated to the Court that the Botnia mill complies
with applicable pollution discharge regulations. Its effluents have not violated water quality
standards, they have not caused significant harm to the river. A mill designed, built and operated to
the highest standards may not be the only way to achieve these outcomes, but it certainly helps.
29. Secondly, the choice of technology shows that Uruguay has adopted a precautionary and
preventive approach to pollution control that is fully in accordance with contemporary standards
and that promotes sustainable development. Uruguay accepts that the precautionary principle or
approach has potential relevance to the manage ment of activities where there is significant
scientific uncertainty, and a risk of serious or i rreversible damage, in accordance with Principle 15
of the Rio Declaration, and Principle 15 has been incorporated into Uruguayan law, and DINAMA
must give effect to it when performing its regulatory duties 21.
19
Exponent Report, p. xii., RU, Vol. IV, Ann. R83.
20
1992 Rio Declaration on Environment and Development, Principle 2.
21Law 17.283 of 2000 follows Rio Principle 15. - 21 -
30. Agenda21 of the 1992Rio Conference set out certain priorities in this respect. Most
relevantly, it endorsed environmentally sound management, giving priority to waste reduction 22.
Modern environmental agreements, such as the 1996 London Dumping Convention, the 1989 Basel
Convention on Transboundary Movement of Ha zardous Wastes, and the 2001Convention on
Persistent Organic Pollutants (P OPs), all reflect this philosophy 23. In general, these treaties have
adopted a precautionary approach. Inter alia they seek to eliminate the most harmful chemicals
from production and use, and they encourage use of cleaner production technology to reduce the
generation of toxic and hazardous waste.
31. Now as you heard yesterday, tertiary treatment would increase the generation of waste
from Botnia. The technology currently used in the Botnia mill thus responds to contemporary
concerns about hazardous wastes emitted by other pu lp mills. It reflects a precautionary approach
to the minimization of effluents. The most obvious way to measure waste minimization is by
looking at environmental efficiency ⎯ i.e., at how much effluent is generated for each tonne of
pulp produced. By this measure the Botnia plant is highly efficient. In most cases the quantity of
waste generated per tonne of pulp is well below expected amounts, and the reports all demonstrate
24
that in the record .
32. Moreover, as the IFC’s consultants point out, the most hazardous substances that might
come from a pulp mill, such as dioxins and furans, have largely been eliminated by the elimination
of chlorine bleaching 25. And as for nonylphenols, as the Court is now aware from Dr.Torres’s
26
affidavit , Botnia does not use these compounds for any purpose, whether as cleaning fluid or in
any other way. Any nonylphenols discharged by the mill must come from the river water that it
uses.
22
1992 UNCED, Agenda 21, Chaps. 19 and 20.
23See, for example, 1989Basel Convention on the Contro l of Transboundary Movement s of Hazardous Wastes,
1996 London Dumping Convention, 2001 Convention on Persistent Organic Pollutants.
24ThirdEcoMetrix Report, Mar. 2009, paras.3.3 and 3. 7 (table 3.4), Uruguay’s Subm ission of New Documents,
Ann.S7, pp.3.2-3.5 and 3.7; DINAMA First Year Botnia Performance Report, May 2009, op. cit., p.3 and App.IV,
p.30, Uruguay’s Submission of New Documents, Ann.S7; DINAMA, July 2009, Botnia Performance Report, op. cit.,
p. 18 (table 5).
25Third EcoMetrix Report, 2008, para. 3.3.6. Uruguay’s Submission of New Documents, Ann. S7, p. 3.5.
26Uruguay’s Comments on New Documents Submitted by Argentina, 15 July 2009, Ann. C24. - 22 -
33. So I think it is probably unnecessary for me to amplify these already cogent conclusions.
After nearly two years of operation, a review of monitoring data by DINAMA on behalf of
Uruguay and by independent experts on behalf of th e IFC, it is clear that the predictions made by
DINAMA, and endorsed by the IFC, were correct. The Botnia pulp mill represents best available
technology. Its waste reduction and management techniques fully implement the precautionary
approach endorsed by the Rio Conference and adopted in contemporary waste management
treaties.
34. Mr.President, Members of the Court, th at, I hope, essentially disposes of Argentina’s
arguments on Article41, and we can now move on to consider Article36 and the ecological
balance of the river.
E. Through CARU the parties have co-ordinated measures to prevent any alteration
of the ecological balance as required by Article 36
35. Article36 provides that the “Parties shall co-ordinate, through the Commission, [which
means CARU], the necessary measures to avoid any change in the ecological balance and to
control pests and other harmful factors in the river and the area affected by it”. Now, with respect
to this Article, I have only one simple proposition for the Court: that the parties have indeed
co-ordinated the pertinent meas ures through CARU as required. If those measures are inadequate
to prevent any change in the eco logical balance, then it remains the responsibility and prerogative
of the parties acting jointly to co-operate in negotiating more appropriate measures through CARU.
36. Argentina argued that Article 36 prohibits “any change in the ecological balance”. If, for
the sake of argument, there were any merit in th is rather bold interpretation, then the obvious
response is that there cannot be a breach of Article 36 when Uruguay has complied with everything
required of it by the currently applicable CARU regulations on protection of the ecological balance
set out in Subjects E3 and E4 of the CARU Digest. Argentina has not alleged any
non-compliance with these regulations.
37. But the even more obvious response is that the terms of Article 36 do not correspond to
the obligation asserted by Argentina. The ordinary meaning of the text, read in context and in the - 23 -
27
light of its object and purpose, c ontradicts Argentina’s interpretation . Article 36 envisages action
by both parties ⎯ the “co-ordination” of measures of envir onmental protection. By its very nature
this is an obligation to be fulfilled jointly. Argentina has not identified what more could be
expected of Uruguay under Article 36 ⎯ Uruguay has co-operated in adopting the necessary rules
through CARU, they are in the Digest, as explained earlier. Moreover, it is Argentina that has been
refusing to participate in the joint m onitoring programmes previously agreed ⎯ and I will come
back to that later. These monitoring programmes would have enabled both parties to co-ordinate
further measures to protect the ecological balance under Article 36 if necessary.
38. The central role of CARU in maintaining the ecological balance of the river is reinforced
by Article56, which requires CARU to adopt binding “rules governing” the “conservation and
preservation of living resources” 2. As with the prevention of po llution, therefore, the parties’
substantive obligations under Article36 are give n specific content in regulations adopted by
CARU, in Subjects E 3 and E 4 of the Digest 29. Indeed, Subject E 3 expressly states that one of its
“purposes” is to protect and preserve the “ecological balance” of the river. Argentina accepted in a
1995diplomatic Note that Subject E4 of the Digest “détermine les règles pour rendre possible la
conservation, l’utilisation et la préservation des ressources vivantes dans le tronçon du fleuve
30
Uruguay partagé” . Argentina and Uruguay are thus in agreement that CARU has enacted rules
that implement the substantive obligations of Article 36.
39. Nor are the current CARU Digest rules self-evidently inadequate for the purpose of
protecting the ecological balance: as the Court has already heard, neither the Argentine nor the
Uruguayan fishery experts have found any evidence of harmful impacts on fish stocks or marine
life caused by effluents from the Botnia plant, and that is all in the reco rd. The evidence in the
record also shows that the Botnia plant has not caused algal blooms. But if there were evidence of
such harm in either case, then the obvious solution would be for Argentina to propose that CARU
27
1969 Vienna Convention on the Law of Treaties, Art. 31.
28
1975 Statute, Art. 56 (a) (2), CMU, Vol. II, Ann. 4.
29CARU Digest, Subjects E 3 and E 4, CMU, Vol. IV, Anns. 60-62.
30MA, para.3.149 (“determines the rules for ensuring the conservation, use and preservation of the living
resources in the shared section of the Uruguay river”). - 24 -
make the necessary revisions to the Digest . And to date, as the Court has already heard, no such
proposals have emanated from Argentina. I submit there has been no breach of Article 36.
40. So the Court will by now be rather fully aware of the extensive measures that Uruguay
has taken to regulate and control the risk of pollution from the Botnia plant, to protect water quality
and the aquatic ecosystem, and to secure co mpliance with applicable national, CARU, and
international standards. Let us then look at ot her ways in which Uruguay has dealt with scientific
uncertainty. First and most obviously, it carri ed out a thorough and comprehensive environmental
assessment of the likely risks, as required by international law. Secondly, in so far as there may
remain uncertainties about long-term impacts of th e Botnia plant, Uruguay submits that they are
best addressed by means of the comprehensive monitoring programme it has put in place. And I
will briefly now deal with each of these points.
II.T HE PLANT HAS BEEN SUBJECT TO AN EIA THAT MEETS ALL THE REQUIREMENTS OF
U RUGUAYAN LAW AND INTERNATIONAL LAW WITH REGARD TO TRANSBOUNDARY RISK
41. So let us start with environmental impact assessment. Environmental impact assessment,
or EIA, is “a procedure for evaluating the likely impact of a proposed activity on the
31
environment” . Uruguay accepts, of course, that in accordan ce with international practice, an EIA
of the Botnia plant was necessary. And it has consistently argued that the EIA that it carried out
on the Botnia plant meets all of the requirements of international law with regard to possible
transboundary harm.
42. Argentina nevertheless persists in the w holly fallacious argument that the Botnia EIA
was not completed prior to authorization of constructi on. On the record this is simply not so. The
initial environmental authorization, which did not approve commencement of construction or
operation, was granted on 14February2005 ⎯ some 11 months after Botnia submitted its initial
EIA on 31 March 2004, and three months after Botnia provided the final additional report
32
requested by DINAMA on 12 November 2004 . For the sake of clarity, that is the date on which
they submitted the information. To sustain its argument on timing, therefore, Argentina relies
instead on the claim that the EIA was inadequate, that it cannot be rectified by later assessments
31
See 1991 Convention on Environmental Impact Assessment in a Transboundary Context, Art. 1 (vi).
32CMU, paras. 4.117-4.133. - 25 -
carried out by the IFC, and that the whole EIA process, therefore, must be disregarded as defective
from the outset. Mr. President, Members of the Court, this not only lacks a legal basis; it defies
common sense.
43. Principle 17 of the Rio Declaration pr ovides that an EIA “shall be undertaken for
proposed activities that are likely to have a significant adverse impact on the environment and are
33
subject to a decision of a competent national authority” . You will find similar technology in the
34
Biological Diversity Convention , and UNEP’s Goals and Principles on EIA also refer to
“activities that are likely to significantly affect the environment” 3. Principle 5 of the UNEP
guidelines goes on to say that “environmental effects in an EIA should be assessed with a degree of
detail commensurate with their likely environmental significance”.
44. Now the Botnia pulp mill at Fray Bent os has been the subject of a demanding EIA
process funded by the World Bank. All elements of the project were subjected to a national EIA
overseen by DINAMA 36. They were then assessed not once but twice in an international EIA
process ⎯ the cumulative impact assessment ⎯ and the final cumulative impact assessment, was
37
carried out for the International Finance Corporation by the Canadian consultants EcoMetrix .
45. Both the Botnia EIA and the final cu mulative impact statement assessed the potential
environmental impact of the plant and found that it was minimal. Not even significant. In that
respect they have been proved right: it cannot be said with any credibility that the whole EIA
process failed to demonstrate an acceptable environmental impact. The same can be said about the
performance of the plant itself: the final CIS assessment was sound and is supported as the Court
heard on Monday by the evidence of the third EcoMetrix Report and DINAMA’s monitoring.
46. Uruguayan law requires the rigorous assessment of potential environmental impacts. It is
consistent with international standards to that ex tent. Before major projects like the Botnia plant
can obtain an authorization 38, extensive information must be submitted to DINAMA, including an
331992 Rio Declaration, Principle 17; emphasis added.
34
1992 Convention on Biological Diversity, Art. 14 (1) (a) (“significant adverse effects”).
35
1987 UNEP Goals and Principles of EIA, Principle 1.
36DINAMA, EIA Report for the Botnia Plant, 14 Feb. 2005, CMU, Vol. II, Ann. 20.
37IFC, Cumulative Impact Study, Sep. 2006, CMU, Vol. VIII, Anns. 173-177.
38
Decree No. 435/994, Environmental Impact Assessment Regulation (hereinafter “Decree No. 435/994”), Art. 1,
21 Sep. 1994, CMU, Vol. II, Ann. 9. - 26 -
EIA. Full details of what an EIA must contain under Uruguayan law are set out in the
Counter-Memorial, and I will not go into the details here, except to remind you that, inter alia, they
require assessment of the “receiving environment” and “sensitive or risk areas”, “water, soil,
landscape”, “fauna, flora, [and] aquatic bi ota”, and the “anthropogenic environment” 39. The EIA
must make an “objective comparison between conditions prior to and after execution of the
40
project” , it must identify mitigation measures to reduce the environmental impact and include a
41
“[m]onitoring, control and auditing plan” .
47. Argentina alleged last week that Uruguay had not acted with all due diligence in
assessing the risks posed by the plan t. But when viewed against the totality of the documentation,
it can be seen that the suitability of the Fray Bentos site was comprehensively assessed. The
42
possible transboundary impact of the plant , the river’s flow characteristics, including reverse
flow 43, air pollution 44, water quality 45, biodiversity 46, and the occurrence of algal blooms 47, to
name only some of the issues, have all been s ubject to review by Botnia, by DINAMA, and by
expert consultants on behalf of th e IFC. This process sets a high standard. For the Court to find
that an EIA of this kind is nevertheless inadequa te would create a precedent with very burdensome
implications for future development in all States, including Argentina. It would also directly
contradict the considered view of the Intern ational Finance Corporation and challenge the
evidential basis on which that international organization approved the plant.
48. The IFC’s technical experts analysed Uruguay’s environmental protection régime and
concluded that “the permit setting process used by DINAMA is practical and rigorous” 48. The EIA
49
was extensive and contained a gr eat wealth of technical info rmation and environmental data . It
3Ibid., Art. 12, para. I.
40
Ibid., Arts. 4, 10 and 11.
41
Ibid., Art. 12, para. IV.
42
DINAMA, Botnia EIA Report, paras. 4.1 and 4.2, CMU, Vol. II, Ann. 20.
4Ibid., para. 3.2, CMU, Vol. II, Ann. 20.
4Ibid., paras. 4.2 and 6.2, CMU, Vol. II, Ann. 20.
4Ibid., paras. 3.2, 4.1 and 6.1, CMU, Vol. II, Ann. 20.
4Ibid., paras. 3.5 and 6.6, CMU, Vol. II, Ann. 20.
47
Ibid., para. 6.1, CMU, Vol. II, Ann. 20.
48
Final CIS, Ann. A, op. cit., p. A6.7, CMU, Vol. VIII, Ann. 174.
49
CMU, paras. 4.117-4.139. - 27 -
was as complete as possible and necessary at the ti me. In Uruguay’s submission such an EIA fully
meets the standards required by current international law 50.
49. And that it did so is also demonstrated if we look at what the International Law
Commission believed a transboundary EIA should contain. Based on its assessment of State
practice, the International Law Commission’s 2001 Articles on Prevention of Transboundary Harm
require only that an EIA should include an evaluation of the possible impact on persons, property
and the environment of other States, but otherwise, and this is reflected in the discussion in the
Commission, they deliberately chose to leave the detailed content for individual States to
51
determine . Uruguay has indisputably conducted an EIA that meets the requirements envisaged
by the International Law Commission 52.
Mr. President, I will skip the next paragraph. It will be deleted.
50. Argentina’s insistence that all aspects of an EIA must be completed before Botnia has
even acquired the necessary land, before notifyi ng CARU, and long before authorization of
construction or operation of the plant, not only has no legal basis, but is also illogical and
unrealistic. As Uruguay pointed out in the Counte r-Memorial, this approach would leave no room
for taking into account any representations made by Argentina or for subsequently revisiting any
aspect of the project at a later stage 53. Argentina’s reading elevates form over substance. It would
turn the whole EIA process into a mechanistic event that has l ittle to do with protecting the
environment or the quality of the decision-making process. That is not what the precautionary
approach endorsed in Principle 15 of the Rio Declaration envisages.
51. Mr. President, Members of the Court, Argentina made one additional argument last week
with regard to EIA: they said that there was in adequate provision for public participation in the
process. Uruguay does not accept the legal basis fo r this argument in the form advanced by
Argentina, but assuming for the purposes of argument that a requirement of transboundary public
participation can be read into the Statute and into Principle 17 of the Rio Declaration, then it has in
50CMU, paras. 4.88-139; RU, paras. 5.28-88.
51
Art. 7 and Commentary in ILC Report , 2001, 405, paras. (7) and (8).
52
CMU, paras. 4.107-4.144.
53CMU, para. 4.95. - 28 -
fact been complied with by Uruguay. As required by Uruguayan law, the EIA process undertaken
54
by DINAMA included consultation with the public likely to be affected . Inhabitants of Fray
Bentos and nearby regions of Uruguay and Arge ntina participated, including representatives from
55
Argentine towns in Entre Rios province ⎯ and that is in the record. All of these representations
were taken into account by DINAMA when deciding whether to approve the DINAMA/Botnia EIA
and recommend the grant of an initial environmental authorization 56. Indeed, the matters raised at
57
these hearings are extensively referred to in the authorization itself .
52. It is clear on this evidence that the par ticipation by the potentially affected public in
Argentina was provided for and did, in fact, ta ke place. Even if Article2 of the 1991United
Nations ECE Convention on Enviro nmental Impact Assessment were applicable in this case ⎯
which of course it is not: it is a European Convention ⎯, it would require Uruguay to do no more
than it had already done. That Convention only provides for “an opportunity to the public in the
areas likely to be affected to participate in relevant environmental impact assessment
procedures” 58. Mr.President, Uruguay submits that it provided an opportunity for the public
affected.
53. While it is true that the degree of public consultation was criticized by the IFC
ombudswoman in a preliminary ruling 59, the basis for her findings was that the IFC’s own
standards had not been complied with, not that ther e had been any breach of international law or of
60
Uruguayan law. The IFC had the option of requiring a supplemental public consultation . It did
order a revision of the assessment of the cumulative impact study (CIS), and that revision was duly
54
Decree No.435/994, Environmental Imp act Assessment Regulation, 21Sep. 1994, CMU, Vol.II, Ann.9.
Decree No.349/005, Environmental Impact Assessment Regulation re vision, 21 Sep. 2005, CMU, Vol. II, Ann. 24.
MVOTMA Initial Environmental Authorisation for the Botnia Plant, paras.XI-XIII, 14Feb.2005, CMU, Vol.II,
Ann. 21.
55
DINAMA, Botnia EIA Report, para. 1, CMU, Vol. II, Ann. 20.
56
Information supplied to the Inter-American Commission on Human Rights, request No. 3.
57MVOTMA Initial Environmental Authorisation for the Botnia Plant, para.XIII, 14Feb.2005, CMU, Vol.II,
Ann. 21.
58Art. 2 (6).
59IFC/MIGA, Office of the Compliance Advisor/Ombudsman, Preliminary Assessment Report, Nov. 2005.
60
World Bank, Operational policy 4.01 on Environmental Assessment, para. 13. - 29 -
61
carried out by EcoMetrix . So that concludes all that I ha ve to say on environmental impact
assessment.
III. THE MONITORING SYSTEM CURRENTLY IN PLACE MEETS ALL THE REQUIREMENTS
OF THE S TATUTE AND GENERAL INTERNATIONAL LAW
54. Now let me move rapidly on to monitoring, or the monitoring process as it is called. The
need to take account of environmental uncertain ty does not stop at the environmental impact
assessment, or, indeed, when the project comes in to operation. Some risks may be inherently
difficult to assess in advance; others may be too unlikely or remote, but nevertheless merit
monitoring on precautionary grounds once the project has come into operation; other risks may
indeed come to light only after operations have begun.
55. The Court will no doubt recall how in the case concerning the Gabčíkovo-Nagymaros
Project it required the parties to “look afresh at the effects on the environment of the operation of
the Gabčíkovo power plant” (Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J.
Reports, p. 78, para. 140). The Court’s approach, a nd Uruguay’s submission, rightly treated prior
EIA and subsequent monitoring of the ongoing ri sks and impacts as a continuum which would
operate throughout the life of a project. And th is view of the relationship between EIA and
monitoring (or “post-project analysis”) reflects St ate practice in many national systems and in the
provisions of modern treaties such as the United Nations Convention on the Law of the Sea and the
United Nations ECE Convention on Environmental Impact Assessment 6.
56. In some cases, the alleged “risks” described by Argentina can only be addressed through
a combination of monitoring and regulatory oversight 63. Uruguay submits that the extensive
monitoring programme it has put in place will ensure that the true impacts of the Botnia plant are
identified, are assessed, and, if necessary, addressed and remedied through existing regulatory and
monitoring programmes.
61
IFC, Final CIS, Sep. 2006, CMU, Vol. VIII, Ann. 173.
61982 United Nations Convention on the Law of the Sea, Arts. 204, 206; 1991 EIA Convention, Arts. 2, 7.
6SecondExponent Report, pp.6-3-6-6, RU, Vol.IV, Ann.R83. See also First Exponent Report, p.30
(uncertainties should be managed and resolved through a comprehensive monitoring program), CMU, Vol. X, Ann. 213. - 30 -
57. The Botnia plant is now very comp rehensively monitored by DINAMA under its
May2007 Monitoring Plan 64. In total, the monitoring programme covers some 26.8 km of the
river ⎯ more than enough to determine whether impacts occur either upstream or downstream.
58. There should be no doubt regarding the adequacy of the pre-operational monitoring. The
IFC’s technical experts conducted an evaluation of the “[s]eparate environmental monitoring
programs . . . developed by Botnia and DINAMA”, including their programmes for monitoring
“water quality, [and] sediment quality [and] biological indicators” 65. Their conclusion is
unambiguous and categorical: “Overall, these monitoring programs [they say] are extremely
comprehensive and exceed the commitments identified in the CIS.” 66
59. Botnia has conducted ongoing monitoring to supplement the work by DINAMA and
provide additional insurance that operations of th e plant are not causing environmental impacts.
The requirement that Botnia undertake that post-ope rational monitoring, which is laid down by the
IFC ⎯ under the direction and review of DINAMA ⎯ has been an integral aspect of DINAMA’s
approval process. Post-operational monitoring by Botnia continues under a monitoring plan
approved by DINAMA, and that plan is described in detail at Annex 41 of the Rejoinder 67.
60. Most of DINAMA’s monitoring activities have already been described to the Court, and
I will not repeat those descriptions. But in ad dition to these, it should also be noted that
post-operational monitoring by DINAMA covers operational compliance of the plant with the
requirements of Uruguayan law and its environmental management plans and permits. This allows
DINAMA to detect rapidly whether the Botnia plant is causing any adverse impacts and to respond
appropriately and immediately by requiring Botnia to undertake additional remedial or protective
measures.
61. The requirement that Botnia report the resu lts of its monitoring, in conjunction with the
post-operational monitoring that DINAMA itself conducts, ensures constant and thorough
64
May 2007 Monitoring Plan, op. cit., Ann. A, para. A1, CMU, Vol. II, Ann. 39.
65
Pre-Commissioning Review, op. cit., p. ES.iii, RU, Vol. III, Ann. R50.
66Ibid., p. ES.iv.
67Botnia Environmental Monitoring and Follow-up Plan, op. cit., RU, Vol. II, Ann. R41. - 31 -
oversight. Put simply, if unacceptable impacts do materialize, Uruguay has both the legal régime
and the monitoring programme in place to ensure that they are identified and dealt with.
62. More importantly, DINAMA and the Environment Ministry have the authority to
suspend operation of the plant temporarily or perman ently if adverse impacts occur, and to require
the adoption of more stringent pollution contro l technology or any other measures they deem
68
necessary to achieve water quality standards or prevent a risk to the environment . DINAMA may
exercise these powers even if a project is operating in compliance with the requirements of all its
approvals, if unacceptable impacts are nevertheless occurring.
63. One example selected from several reporte d cases will show the Court how the system
works in practice 69. On 26 January 2009, a leakage of gas was traced to an operational error during
routine maintenance of the Botnia plant. It set off the verification mechanisms adopted as part of
the company’s contingency response plan. DINAMA inspected the plant on the following morning
to check on the situation and the measures adopted by Botnia. It issued an order requiring the
company to implement additional monitoring and to review maintenance protocols for pipes that
contain sulphur gases (TRS) 7. Both actions were implemented in a timely way. All of this is
recorded in the record of DINAMA’s monitoring reports.
64. The Pre-Commissioning Review undertak en for the IFC specifically endorsed the
processes and protocols for monitoring the Botnia plant, concluding that the “[c]omponents of the
monitoring program follow well established protoc ols which will aid in design, analysis and
71
interpretation” . It singled out the monitoring programmes for “water quality, sediment quality
and biological indicators”, noting that these pr ogrammes were “similar to the Environmental
Effects Monitoring (EEM) . . . required for pulp and paper mills in Canada”.
68Decree No. 253/79, op. cit., Art. 17, CMU, Vol. II, Ann. 6. Law No. 17,283, General Law for the Protection of
the Environment, Art. 14, 28 Nov. 2000, CMU, Vol. II, Ann. 11.
69DINAMA July 2009 Botnia Performance Report, op. cit., pp.23-24; DINAMA, Su rface Water and Sediment
Quality Data Report: Jan.-June 2009, Ju ly 2009, (hereinafter “DINAMA July 2009 Water Quality Report”), p.29,
original Spanish version available via a link entit led “Informe Agua Seme stre 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. 2009.
70National Management Resolution 052/09. Uruguay’s Co mments on New Documents Submitted by Argentina,
15 July 2009, Ann. C6.
71Pre-Commissioning Review, p. ES.iv, RU, Vol. III, Ann. R50. - 32 -
65. The third EcoMetrix Report gives a detailed report on the results of monitoring by
72
DINAMA and Botnia in 2008 . And, as the Court heard on Monday, the data shows that the plant
complies with all applicable regulations and envi ronmental standards and has not caused water or
air pollution. These conclusions, as I said on Monday, are fully corroborated by DINAMA’s latest
73
monitoring .
66. MrP . resident, Members of the Court, you may be surprised to learn that
untilFebruary2006, CARU had the principal responsibility for monitoring the water quality and
aquatic health of the Uruguay river. CARU deve loped two plans: (1)the pollution control and
prevention programme ⎯ otherwise known as “PROCON”; and (2)the Uruguay River
environmental quality monitoring plan for areas with cellulose plants ⎯ otherwise known as
“PROCEL”. These are the Spanish acronyms. PROCEL, as I mentioned on Monday, was
designed ⎯ and as its title suggests ⎯ specifically for the Botnia and ENCE plants. In addition to
water quality, CARU also analysed other environm ental conditions of the Uruguay river. These
included data on metal and organic contaminants for sediments 7; and on various aspects of fish
communities, diversity of fish populations 75, spawning 76, and levels of certain contaminants in
77
fish .
67. Unfortunately, all of these CARU monito ring activities were suspended at Argentina’s
insistence. Argentina first blocked CARU fro m carrying out any further monitoring activities
78
under PROCON or PROCEL in January 2006, shortl y before it initiated the present proceedings .
Since that date, Argentina has consistently refused to allow CARU’s previously agreed monitoring
72Third EcoMetrix Report, Mar. 2009, Uruguay’s Submission of New Documents, Ann. S7.
73
See DINAMA First Year Botnia Performance Report, May 2009, op. cit. Uruguay’s Submission of New
Documents, Ann.S7; DINAMA July 2009 Botnia Performance Report, op. cit.; DINAMA July 2009 Water Quality
Report, op. cit.; DINAMA, Air Quality Report: Six Month Report: Jan.-June 2009, July 2009, (hereinafter “DINAMA
July 2009 Air Quality Report”), original Spanish version available via a link entitled nforme Aire Semestre Ene-
Jun2009” at http://www.mvotma.gub.uy/dinama/index.php?option=com_docman&Itemid=312. Translation submitted to
the Court on 14 Sep. 2009.
74Final CIS, Ann. D, p. D3.7, CMU, Vol. VIII, Ann. 176.
75Ibid.
76
Ibid., p. D3.10.
77
Ibid., p. D3.16.
78See, for example, diplom atic Note CARU-ROU No.024/06 sent from President of the CARU Uruguayan
delegation to the President of the CARU Argentine delegation, p. 1, 18 Sep. 2006, CMU, Vol. IV, Ann. 120. Diplomatic
Note CARU-ROU No.033/06 sent from President of the CA RU Uruguayan delegation to the President of the CARU
Argentine delegation, p. 1, 13 Oct. 2006, CMU, Vol. IV, Ann. 121. - 33 -
activities to resume. Uruguay has repeatedly expressed its desire for those monitoring activities to
resume to no avail 79and Argentina continues to veto resumption of joint monitoring related to the
80
Botnia plant .
IV. T HE BURDEN OF PROOF ON ALL THESE ISSUES IS ON A RGENTINA ,BUT U RUGUAY HAS MORE
THAN PROVED ITS OWN CASE ,AND A RGENTINA HAS NOT
68. Mr. President, Members of the Court, I come finally to the question of burden of proof.
The burden of proof in this case is on Argentina, in accordance with the Court’s long-standing case
81
law .
69. Nevertheless, Uruguay has put before the Court extensive evidence based on
environmental impact assessments and monitori ng, much of it carried out by consultants
independent from either Botnia or Uruguay. That evidence has shown that there is no significant
impact on the quality of the river water or its eco system. Nor has Argentina’s evidence established
even a prima facie risk of harmful pollution or ecological damage, let alone a risk of serious or
irreversible damage resulting from the operation of a plant whose emissions and operations comply
fully with all the applicable regulations and sta ndards. Even if Argentina were correct about
transferring the burden of proof to Uruguay, it would make no difference, given the manifest
weakness of its own case.
70. The evidence in Uruguay’s favour is substantial, it is strong, and it is based on actual
monitoring results over an 18-month period. And as my colleague Mr.Reichler has so pointedly
demonstrated, Argentina has presented no significant or credible evidence to the contrary. The
evidence before the Court points overwhelmingl y to the conclusion that there will be no
unacceptable effects from the operation of the plant ⎯ and certainly nothing that amounts to
serious or irreversible damage, as required by Principle 15 of the Rio Declaration. If it has to prove
7See for example, diplomatic Note CARU-ROU No.024/06, op. cit., p.1, CMU, Vol.IV, Ann.120. Sealso
diplomatic Note CARU-ROU No. 033/06, op. cit., p. 1, CMU, Vol. IV, Ann. 121.
80
See, for example, diplomatic Note DACARU No. 019/06 sent from President of the CARU Argentine
delegation to the President of the CARU Uruguayan delegation, p. 1, 20 Oct. 2006, CMU, Vol. III, Ann. 122.
81
Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 128, para. 204 (“On the burden
or onus of proof, it is well established in general that the appl icant must establish its case and that a party asserting a fact
must establish it.”); case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America ), Jurisdiction and Admissibility, I.C.J. Reports 1984, p.437, para.101 (“it is the litigant seeking to
establish a fact who bears the burden of proving it”). - 34 -
its case on pollution and ecological effects, then Uruguay submits that it has more than done so.
And this shows far better than any list of laws a nd regulations, or descriptions of technology, that
Uruguay has acted diligently in all respects in its handling of the Botnia pulp mill.
V. C ONCLUSIONS
71. Mr. President, Argentina’s case must fail because there is no basis in law for ordering the
closure of an industrial plant that complies fully with all applicable e nvironmental regulations
agreed by both parties ⎯ even under the precautionary principle. Argentina’s argument focuses on
alleged harm and the supposed environmental risk posed by this plant at this location. As the
82
International Law Commission concluded after very many years of study , international law
requires States to act diligently to prevent po llution, but it does not prohibit otherwise lawful
activities within the territory of a State simply because they might pose a risk to the environment if
they are not adequately regulated and controlled. Mr.President, Members of the Court, Uruguay
has demonstrated that the Botnia mill is very adequately regulated and controlled by DINAMA and
CARU.
72. The Court today finds itself in much the same position as the International Law
Commission. If it accedes to Argentina’s unpr ecedented demand for closure of the plant on
grounds of risk to the environment, despite the measures Uruguay has taken to eliminate that risk,
the implications would be far-reaching, not only for the wood pulp industry worldwide but for
other comparable activities.
73. Consistently with the Rio accords and th e imperatives of sustainable development, the
United Nations and the World Bank have focused th eir efforts on better regulation of industry, on
more monitoring, on waste minimization, on im proving efficiency, on integrating environmental
83
protection with economic development ⎯ the kind of measures the International Finance
Corporation insisted on when fund ing the Botnia plant. A precau tionary and preventive approach
is certainly part of that policy and it should, of course, make States more cautious, as it has in this
case, but that must not be confused with a prohibiti on of risk, however small, or however unlikely.
82
See Draft Articles on Prevention of Transboundary Damage, ILC Report (2001), United Nations
doc. A/56/10, 366.
8UNCED, Agenda 21, Chaps. 19 and 20. - 35 -
Uruguay submits that it has more than met the requirements of a precautionary and preventive
approach in authorizing construction and operation of the Botnia plant on the terms outlined to the
Court by Uruguay.
74. Mr. President, Members of the Court, I am conscious that this has been a long speech ⎯
no doubt far too long. So let me end by summarizing the conclusions that follow from what I have
tried to explain.
75. First, there has been no violation of the provisions of the 1975 Statute on prevention of
pollution and protection of the aquatic environmen t: Uruguay has acted diligently in taking all
appropriate measures required by the Statute to prevent pollution and protect the ecological balance
of the river.
76. Secondly, effluent from the Botnia plant has not altered water quality and therefore has
not caused pollution of the River Uruguay, nor has it altered the ecological balance.
77. Thirdly, Uruguay has complied with Article41 ⎯ it has discharged its duty to regulate
effluent discharges in accordance with water quality and discharge standards established by CARU,
or by its own laws and regulations.
78. Fourthly, the plant’s technology meets all the pollution prevention and environmental
protection requirements of the 1975Statute, and fu lly implements a precautionary and preventive
approach.
Fift. ly ⎯ and I only have four more ⎯, through CARU the parties have co-ordinated
measures necessary to prevent any alteration of the ecological balance as required by Article36,
and any additional measures that might be required should be co-ordinated through CARU.
80. Sixthly, the plant has been subject to an EIA that meets all the requirements of
Uruguayan law and international law with regard to transboundary risk. The EIA was both
comprehensive and timely.
81. And seventh, the monitoring system curre ntly in place meets all the requirements of
Uruguayan law, of the 1975 Statute, and of international law with regard to transboundary risk.
82. And finally, the burden of proof on all of these issues is on Argentina, but Uruguay has
more than proved its own case, while Argentina has not. - 36 -
83. Mr. President, Members of the Court, I thank you for listening to me, and I would now
ask you to give the floor to Professor McCaffrey.
The VICE-PRESIDENT, Acting President: I thank Professor Boyle for his presentation, and
I shall pass the floor to Professor Stephen McCaffrey. You have the floor, Sir.
Mr. McCAFFREY: Thank you, Mr. President. Mr. President, distinguished Members of the
Court, it is an honour to appear before you again on behalf of the Eastern Republic of Uruguay.
T HE PROCEDURES UNDER THE S TATUTE AND THE ROLE OF CARU
I. NTRODUCTION
1. Mr. President, you have now heard Uruguay’s environmental case concerning those issues
before the Court. As the speakers before me have shown, the Botnia plant is not causing, and poses
no risk of causing, any harm to the water quality or the aquatic environment of the Uruguay river,
let alone significant harm. Argentina’s arguments to the contrary do not withstand scrutiny.
2. Having disproved Argentina’s environmenta l case, Uruguay now turns to the other aspect
of this dispute: Argentina’s procedural complaints . My role now is to begin the task of refuting
the claims you heard so much about last week from Argentina’s advocates that Uruguay violated
the procedural provisions of the 1975 Statute.
3. My comments this morning will be divided in to three parts, the first two of which will be
brief. First, I will offer a quick overview of te procedural rules in Articles7 through 12 of the
Statute in order to summarize for the Court th e essence of the Statute’s procedural scheme.
Second, I will discuss the purpose of the Statute’s procedural rules. In the third part of my
presentation, which will occupy the bulk of my time, I will show that while CARU has an
extremely important regulatory role regarding standard-setting and monitoring of water quality, and
in assuring the Parties’ compliance with their substantive obligations to prevent pollution, it has, by
contrast, a modest role in the consultative pro cess between the Parties with regard to projects
authorized by either one of them involving u tilization of the river. Following me today and
tomorrow, Mr.Martin will show that, contra ry to what you heard last week, Uruguay did not
violate Article7 of the 1975Statute. Prof essorCondorelli will then show that Uruguay has - 37 -
complied with the remainder of the procedural scheme established by the Statute, in Articles8
to12, focusing on Article12, and he will res pond to Argentina’s arguments regarding the proper
interpretation of those provisions.
II. OVERVIEW OF A RTICLES 7 THROUGH 12
4. Mr. President, I turn then to my first point. Articles 7 through 12 of the Statute establish a
sequence of procedures to be followed when one of the States is planning to implement a project on
its side of the Uruguay river that is, in the words of the Statute, “liable to affect navigation, the
régime of the river or the qua lity of its waters”. These Articles establish a series of steps
culminating, in the case of a persistent dispute, in the reference of that dispute to this Court. The
text of the pertinent articles may be found at tab 1 of the judges’ folder. I will not burden the Court
by reciting the full text of each of these provisions.
A. Article 7
5. The process begins with Article7. Under the first paragraph of Article7, the State
planning a project that is “liable to affect naviga tion, the régime of the river or the quality of its
waters” is to notify CARU, which then has a very brief period of 30days to determine “on a
preliminary basis” whether or not the proposed project “might cause significant damage to the
other Party”. If CARU decides that it will not, that is the end of the matter. No further procedures
are envisioned.
6. If, on the other hand, CARU determines that the project might cause significant harm or if
it cannot reach a decision on the issue, the second paragraph of Article7 provides that the State
planning the project is to notify the other Party through CARU. The third paragraph of Article7
states the nature of the information that the initiating State must provide to the notified State.
7. There are at least two key points to highlight about the text of Article7. First, the
substantive scope is limited. Notification is not required for any and all projects, but instead only
those that are of sufficient scope to potentially affect just three things: (1) navigation; (2) the
régime of the river; or (3) the quality of its waters. All other issues, including other environmental
issues such as air quality for instance, are beyond the scope of these procedural rules. - 38 -
Th8e. second key point regarding Article 7 is that the role of CARU in this process is quite
limited. My colleague Mr. Martin will have more to say about this shortly, but the important point
to bear in mind is that in the case of projects falling under Article7 a nd notified to CARU, the
Commission is assigned only the limited task of conducting a “preliminary”, and necessarily quite
summary, 30-day review. Thereafter, the Co mmission’s role in the consultation process is
effectively over, except only that it continues to act as an intermediary for communications
between the Parties ⎯ a “postal agent” in the words of Ar gentine Ambassador Julio Carasales, the
former head of Argentina’s delegation to CARU, a past President of the Commission, and one of
Argentina’s leading authorities on the 1975Statute. This is of utmost importance, because direct
negotiations between the two Parties, on the “Gove rnment-to-Government” level, is precisely what
occurred in the present case, as we will see presently.
B. Articles 8 to12
9. Mr.President, I turn now to Articles8 to 12. Article8 gives the notified State a period
of180days to review the information provided to it by the initiating State in order “to assess the
probable impact of such works on navigation, th e régime of the river [and] the quality of its
waters”.
10. Article 9 then provides that if the notified State raises no objections or does not respond
within the 180-day period referred to in Article 8, the initiating State may implement the project
without incurring any further procedural obligations, except only to permit the notified State to
inspect the project under Article 10.
11. Article11 deals with the alternative possibility; that is, what happens in the event that
the notified State comes to the conclusion that the proposed project might cause significant harm.
In that event, further procedures are mandated. In particular, the notified State must inform the
initiating State of its conclusions. The second paragraph of Article 11 places a heavy burden on the
State opposing a project. It must
“specify which aspects of the work or programme of operations might significantly
impair navigation, the régime of the river or the quality of its waters, the technical
reasons on which this conclusion is based a nd the changes suggested to the plan or
programme of operations”. - 39 -
12. The effect of such a notice from the notified State is to set in motion a further 180-day
period for negotiations between the parties. Although Articles7 through 12 do not explicitly
provide for negotiations as such, the requirement is imported by means of Article12, which
provides that if the parties fail to reach agreem ent within 180days of the notice described in
Article11, recourse is to be had to the proced ure indicated in ChapterXV of the Statute.
ChapterXV, in turn, consists of Article60, whic h provides for the jurisdiction of this Court over
“any dispute concerning the interp retation and application” of th e Statute which “cannot be settled
by direct negotiations”.
III.T HE PURPOSE OF THE STATUTE ’S PROCEDURAL PROVISIONS
13. Mr.President, I come now to the purpose of the procedural provisions I have just
summarized. In evaluating Argentina’s argument that Uruguay breached its procedural obligations,
it is important to bear their purpose in mind. As I shall show presently, the purpose of the Statute’s
procedural provisions is to assure consultations between the parties and ultimately the performance
of the Statute’s substantive obligations. Thus th e Statute’s procedural mechanisms do not exist for
their own sake, in a vacuum, but rather as a tool to help facilitate the achievement of these goals by
ensuring that both riparian States are fully informed, and have an opportunity to be consulted,
about projects planned by each other, before they are carried out. The procedures are, in a phrase,
means to an end. They are important means, to be sure, but they are nonetheless means.
14. During the oral proceedings on Argentina’s provisional measures request in June 2006 84,
Uruguay explained that the procedural provisions of the 1975Statute cannot be considered in
isolation, but must be interpreted in light of th eir ultimate purpose within the Statute. I am pleased
to say that Argentina has explic itly agreed with Uruguay on this point, in both the Memorial and
the Reply 85. In the Reply, for instance, Argentina states:
“The procedural provisions and obligatio ns of the parties under Articles 7 to 12
of the 1975 Statute cannot be considered in an isolated manner, without taking account
84
CR 2006/49, p. 31 (Reichler).
8See MA, paras. 3.31 and 5.2; RA, paras. 1.28 and 1.69. - 40 -
of the end-purpose of these precise and specific obligations, namely the performance
of the Statute’s substantive obligations.” 86
Uruguay could not have put it better, and adopts Argentina’s words as her own.
15. In looking more closely at the purpose of the procedures laid down in Chapter II of the
Statute, we are aided by the explanation provided by one of Argentina’s great authorities on
international water law, Dr. Julio Barberis. Dr. Barberis was also Argentina’s lead negotiator in the
talks with Uruguay that culminated in the 1975 Statute. Speaking at a Technical-Legal Symposium
sponsored by CARU in 1987, Dr.Barberis described the functions of the Commission at some
length 87, a description with which Uruguay agrees and that is set forth in the Counter-Memorial 88.
With regard to proposed projects, Dr. Barberis said the following:
“Now, when one State proposes carrying out any work of sufficient size to
affect the river, it should first consult with its riparian neighbor to permit the latter to
determine whether said works will cause it significant damage. Articles 7 to 13 of the
Statute establish the procedure to follow for this purpose and provide for the
participation of the Commission.” 89
16. It is significant that Dr.Barberis, Arge ntina’s foremost authority on the 1975Statute,
described the procedural provisions of the Statute as establishing that the State proposing a project
“should first consult with its riparian neighbor”, and that “Articles7 to 13... establish the
procedure to follow for this purpose”. The “purpose” of these provisions is thus to assure
“consultation” with the riparian neighbour. Dr. Barberis does not go into any detail here about the
form of the Commission’s participation, but elsewhere he refers to it, as has Uruguay, as
90
“participation in the consultation régime” . As we have seen, this participation consists of
receiving the initial notification from the proposing party, performing a summary review to
determine whether the planned project might cause si gnificant damage to the other party, and, if it
finds the project might cause such harm, notifying the parties ⎯ at which point the proposing party
is to notify the other party of the plan through the Commission. Thereafter, CARU’s role regarding
86RA, para.1.69 (“Les dispositions et obligations procédurales des Parties en vertu des articles7 à 12 du Statut
de1975 ne peuvent pas être considérées isolément, sans pre ndre en compte la finalité de ces obligations précises et
spécifiques, c’est-à-dire la réalisation des obligations substantielles du Statut.”).
87CARU Technical-Legal Symposium, 17-18 Sep. 1987, CMU, Vol. IV, Ann. 72.
88CMU, pp. 140-141, para. 2.200.
89CARU Technical-Legal Symposium, 17- 18 Sep. 1987, CMU, Vol.IV, Ann. 72. The passage in question is
quoted in CMU, p. 141, para. 2.200.
90
Ibid. This is how Dr.Barberis refers to the 5th categoy of CARU’s powers. For the substantially identical
formulation of Uruguay, see CMU, p. 134, para. 2.189. - 41 -
planned projects consists only of serving as a conduit for communications between the parties, as
indicated earlier.
17. Last week ProfessorPellet echoed this vi ew, stating that “la CARU est essentiellement
91
un cadre de concertation [or consultation] entre les Parties” . For Uruguay, too, the main purpose
of the Statute’s procedural provisions is to assure consultations between the parties on the types of
projects that fall under Article 7.
18. In the present case, this purpose was fulfille d, by virtue of the direct consultations
between Uruguay and Argentina about the Botnia project in the six-month GTAN process that took
place in 2005. To be sure, this process, commenced by the two Parties by mutual agreement at the
invitation of Argentina in May 2005, provided for the immediate convening of direct, State-to-State
negotiations rather than passing through the prelimin ary stage, envisioned by Article7, of formal
notification and preliminary review by CARU. Ho wever, if the central purpose of the Statute’s
procedural provisions is to ensure consultations between the parties with respect to any project
calling for utilization of the river that might affect the other party, then there is no reason they
should not be free, by mutual agreement, to adopt what they consider to be the best means of
consultations in the context of a particular pr oject, even if it does not follow the formalities of
Article 7.
The VICE-PRESIDENT, Acting President: Pr ofessor McCaffrey, having looked at the
outline of your wise argument for today, I consider this may be an appropriate moment to suspend
the meeting, since we are now well into the second part of Uruguay’s argument. So, I suspend the
meeting for 15 minutes.
Mr. McCAFFREY: Thank you, Mr. President.
The Court adjourned from 11.20 to 11.35 a.m.
The VICE-PRESIDENT, Acting President: Pl ease be seated. ProfessorMcCaffrey, you
may continue, and address the third topic of your pleading of this morning.
91
CR 2009/13, p. 26, para. 1. - 42 -
Mr. McCAFFREY: Thank you very much, Mr. President.
IV. THE NATURE OF CARU AS A JOINT
INSTITUTIONAL MECHANISM
19. Mr.President, distinguished Members of the Court, allow me to turn now to the third
topic I would like to address: the nature of CARU as a joint institutional mechanism. As has been
noted by both Uruguay and Argentina, CARU has been given important functions for the
implementation of the relevant provisions of the 1975 Statute.
A. The purpose of CARU is to facilitate
co-operation, not to prevent it
20. However, Argentina seeks to portray CARU as having powers and characteristics it was
simply not given by the Statute. In particular, Argentina seems determined to create the impression
that once they have given it life through the 1975 Statute, the parties must deal with each other only
through CARU as to matters as to which it is co mpetent; and that they are not free to agree to
dispense with procedures or other matters with which CARU is concerned. Thus, Argentina’s
argument effectively treats CARU as an autonomous body with supranational powers. But such an
argument rests on a serious misunderstanding of how not only CARU, but also most other
international river commissions, actually function.
21. These are not autonomous bodies, but mechan isms established to facilitate co-operation
between riparian States. Since they are created by their member States, those States are of course
free to go outside the joint mechanism when it suits their purposes, and they often do so. To give
just one example, Canada and the United States ha ve often dealt with particularly important and
sensitive matters outside the International Joint Commission, or IJC, the highly-regarded institution
they established under the 1909 Boundary Waters Treaty 92. They have done this both by taking
over matters that they had initially referred to the IJC, and by not referring matters to the IJC in the
first place ⎯ all of these being matters that the Commission would otherwise have been competent
to consider. Perhaps the best known dispute of th is kind is the one involving the smelter at Trail,
British Columbia, on which the IJC submitted a repor t but which the two Governments ultimately
92Treaty between Great Britain (Canada) and the Ud States relating to Boundary Waters and Questions
Arising between the United States and Canada, 11 Jan. 1909, 102 BFSP, p. 137. - 43 -
took away from the Commission and referred to arbitration. This resulted in the famous Trail
Smelter award 93, which many consider to be the cornerst one of international environmental law.
Other disputes that were within the competence of the IJC but which the Governments dealt with
on their own include those concerning the Garrison Diversion project and the Devils Lake drain. In
the latter case, in fact, the Secretariat of the North American Commission for Environmental
Cooperation ruled in response to a citizens’ petitio n that there is no requirement that the two
94
Governments submit boundary water disputes to the IJC .
22. Mr. President, in this case, Argentina and Uruguay did nothing more than Canada and the
United States have done on numerous occasions w ith respect to their Joint Commission on shared
freshwater resources, and that other States have done with regard to their joint river commissions,
as well.
23. To allay any possible doubt, I should emphasize something that should go without
saying, namely, that, as AmbassadorGianelli said on Monday, Uruguay values CARU highly, as
an indispensable institution for the co-operative management of the Uruguay river that carries out a
range of important functions, as specified in Article 56 of the Statute. Therefore, nothing I say in
the balance of this presentation should be taken in any way as a denigration of this important body.
My purpose, rather, is to underscore its significance, by laying before the Court in plain terms what
CARU is, and what it is not, as concerns the present case.
24. On the most fundamental level, one thing CARU is, is a member of a grand tradition of
international river commissions. While every commission’s functions are tailored to the
circumstances and needs of the particular case at hand, in their basic procedural characteristics
most of them are quite similar. In creati ng CARU, Argentina and Uruguay followed a model
whose origins are nearly two centuries old.
25. Those origins take the form of a body that PaulReuter described as the doyen of
international organizations ⎯ not only of river commissions 95 ⎯ the Central Commission for the
Navigation of the Rhine. The Central Commission, which served as a model for river commissions
93
Award of 11 March 1941, 3 UNRIAA, p. 1938 (1941).
9CEC doc.A14/SEM/06-002/12/DETN, 21 Aug. 2006, available at http://www.cec.org/files/pdf/sem/06-2-
DETN_en.pdf.
9Paul Reuter, International Institutions, New York, 1961, p. 207. - 44 -
to follow, was established in conjunction with the 1815Congress of Vienna. Today the Central
Commission adopts resolutions by unanimous decision of representatives of the five member States
in accordance with the Mannheim Convention of 17 October 1868, as amended to form the Revised
Convention for Rhine Navigation of 20November 1963. Article46 of the Revised Convention
provides that “[r]esolutions adopted unanimously shall be binding”, but the article allows a
Contracting State to opt out within one month, thereby nullifying the binding force of the
96
resolution .
26. Thus, even in this venerable body, th e descendant of the “doyen of international
organizations” that began meeting in 1816, even in this body, decisions are taken by unanimous
vote of State representatives ⎯ and yet such unanimously adopted decisions are still subject to
being nullified or suspended by action of just one of the member States. This decision-making
régime reflects the fundamental im portance to the riparian States of matters relating to navigation
on the Rhine. It is thus not in the least surprising that CARU would also consist of representatives
of each member State and adopt decisions by unanimity, or consensus. River commissions all over
the world follow the Central Commission model of decision-making by State representatives,
including the Danube Commission 97, the Mekong River Commission 98, and the Permanent Indus
99
Commission . None of these bodies is autonomous; all of them are fora created by States to
institutionalize and thus facilitate their co-operation.
27. CARU is no exception. Thus, in a very real sense, CARU is the Parties ⎯ Argentina and
Uruguay ⎯ acting jointly. It is a bi-national entity, not an autonomous body.
28. There could perhaps be no stronger proof of this proposition than the decision-making
rules of CARU provided for in the Statute. These rules are simple and straightforward ⎯ so much
so that they in fact consist of only one rule, the entirety of which, set forth in Article55 of the
Statute, provides as follows: “For the adoption of decisions of the Commission, each delegation
96
Revised Convention for Rhine Navigation, 20 Nov. 1963, Art. 46, available at http://www.ccr-zkr.org/.
97Belgrade Convention regarding the Regime of Na vigation on the Danube, Belgrade, 18Aug.1948, 33UNTS
181, Art. 11 (majority vote of member State representatives).
98Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin, Chiang Rai,
Thailand, 5 Apr. 1995, 34 ILM (1995) 864 , Arts. 15 and 20 (unanimous vote of ministerial-level representatives).
99Indus Waters Treaty, Karachi, 19 Sep. 1960, 419 UNTS 125, Art. IX (1) (representatives to resolve any question
by agreement). - 45 -
shall have one vote.” Full stop. Article 49 provid es that CARU is to consist of “an equal number
of representatives of each Party”. Thus, the “delegations” are “representatives” of the parties; no
decision can be made by CARU unless both parties concur in it. There is no autonomous authority
in the Commission to make decisions separately from the parties, or against the wishes of one of
them. But, once again, this is not unique to CARU. It is characteristic of the vast majority of the
world’s international river commissions.
29. The fact that the Statute provides in Article 50 that CARU “shall be made a legal entity”
and in Article 54 that it is to “conclude agreemen ts with both Parties specifying the privileges and
immunities enjoyed by its members and staff under in ternational law” is standard for international
river commissions and is not at all inconsistent with what I have just said about how CARU adopts
decisions. CARU is an international organization, but the way it makes decisions makes it strictly
dependent on the will of the two parties acting jointly.
30. In fact, Mr. President, in practice ⎯ in actual practice ⎯ CARU is an instrument of the
two Parties’ Foreign Ministries. It is the Foreign Ministry of Uruguay that appoints its delegates to
CARU and to whom those delegates report, as junior officials to their seniors. The same is true of
Argentina.
31. This being the case, it is perfectly natu ral that, with a project of this magnitude ⎯ the
Botnia project ⎯ the two Foreign Ministries would decide to deal with the matter directly, at the
highest political level, rather than through the mid-level subordinates who serve as their delegates
to CARU. That is why, in this case, the Forei gn Ministers agreed, at Argentina’s invitation, to
establish the GTAN ⎯ the high-level technical group ⎯ to carry out the consultations and direct
negotiations called for by the 1975 Statute. It was a deliberate decision not to entrust such a major
project, with major political implications in both countries, to their subordinates at CARU. They
decided, wisely, that this particular matter had to be dealt with directly and at the highest level.
32. As we have seen, Mr. President, there is nothing in the 1975 Statute, or in the rich history
of river commissions generally, to stop them from reaching agreement to proceed in this manner. - 46 -
B. The Parties agree that CARU does not have the power to approve projects
33. Mr.President, Argentina contended in her Memorial that CARU has the power to
“determine whether Uruguay could build or gran t the authorization to build the works in
question” 100. But Argentina’s Reply contradicts itself on this issue, as pointed out in Uruguay’s
101
Rejoinder , and last Tuesday Professor Pellet expressly recognized that CARU does not have the
authority to authorize or reject a project 102. This is thus a non-issue: the Parties are in agreement
that CARU does not have the power to approve projects.
34. It was surprising, therefore, to hear no less than three of Argentina’s advocates 103 refer
last week to an answer given by a former president of the Uruguayan delegation to CARU,
Madame Martha Petrocelli, in response to a hypothe tical question put to her in the Environmental
Committee of the Uruguayan Senate on 12September 2005. The question was, what would have
happened if the question of the mills had been re ferred to CARU and “the answer had been no”?
Madame Petrocelli responded, in words that are now well known to the Court: “The works would
not have been carried out.”
35. The colloquy between MadamePetrocelli and the Committee is susceptible of at least
two interpretations, neither of which supports Argentina’s case. In fact, Argentina’s counsel
switched back and forth between which of these interpretations they preferred, frequently
contradicting each other about it. According to some of Argentina’s counsel, the question asked
MadamePetrocelli had to do with CARU’s authorit y to reject proposed projects, and her answer
indicates that she thought it could. But if this is what the question and answ er meant, the incident
is irrelevant. Both Uruguay and Argentina now ag ree, and have both said so in this Court, that
CARU does not have the power to reject propo sed projects. If MadamePetrocelli intended
otherwise, she was mistaken. In any event, he r opinion is immaterial at this stage of the
proceedings.
36. The other use to which Argentina’s counsel put Madame Petrocelli’s answer ⎯ and I am
referring here to the way Professor Sands sought to portray it ⎯ was as an admission that Uruguay
10MA, para. 4.13.
101
RU, pp. 36-37, paras. 2.13-2.14.
10CR 2009/13, p. 29, para. 8.
10CR 2009/13, pp. 46 (Béraud), 53 (Boisson de Chazournes), and 67 (Sands). - 47 -
did not engage in consultations with Argentina because, if Argentina had said “no” to the project
“[t]he works would not have been carried out ”. This is plainly a misconstruction of
MadamePetrocelli’s answer. In the first place, if one reads the whole series of questions and
answers, rather than the tiny snippet extracted by Professor Sands and Argentina’s other counsel, it
is clear that the whole line of questioning is about the authority of CARU, not consultations with
Argentina. But even more dispositive on this point is the fact that, at the time of this exchange,
September2005, Uruguay was already deeply engage d in direct consultations with Argentina as
part of the GTAN process, which had been agre ed between the two States in May 2005, four
months earlier. So whatever Madame Petrocelli was saying, she could not have been talking about
a refusal to engage in consultations with Argen tina, or a right of Argentina to reject Uruguay’s
project.
37. The strained attempt by Argentina’s coun sel to use MadamePetrocelli as a witness to
support their argument that Uruguay never consulted with Argentina about the Botnia project
reveals Argentina’s insecurity rega rding its argument on consulta tion. Consultations happened,
especially in the GTAN process; Argentina would like the Court to think that they did not.
C. The agreement to engage in direct, government-to-government negotiations
about the Botnia mill
38. Mr.President, Argentina has repeatedly argued, in both its written and oral pleadings,
that Uruguay should have notified CARU of the pulp mill plans under Article7 of the Statute
notwithstanding the discussions held between th e Foreign Ministers of the two countries at
Argentina’s own suggestion. My colleague Mr .Martin will address this argument in detail
presently. My task now is simply to set the scen e for the Court by providing an illustration of the
Parties’ agreement to deal with the mills directly, in government-to-government talks. Uruguay is
confident that the Court will agree that having he ld directly the very kinds of consultations
envisaged by Articles7 to12 of the Statute, it would have been redundant and even absurd to
return to CARU to repeat the same process indirectly. - 48 -
39. [Slide.] Mr.President, a clear indication of the Parties’ determination to deal with the
matter directly, outside CARU, is the excerpt now shown on the screen from a letter of 5 May 2005
sent by the Argentine Foreign Minister, Rafael Bielsa, to his Uruguayan counterpart 104.
40. Mr.Martin will have more to say about this letter but, for now, two points are worth
emphasizing with respect to the letter and the events it set in motion. First, it makes clear that it
was Argentina that invited Uruguay to deal with the matter directly. And second, the “more direct
intervention”, highlighted towards the bottom of the screen, referred to by Minister Bielsa took the
form of the establishment by the two Foreign Ministers, pursuant to an agreement between the
Presidents of the two countries, of a group of technical experts, known as GTAN. My learned
colleague Professor Condorelli will discuss the GTAN negotiations in more detail tomorrow.
V. C ONCLUSION
41. Mr.President, distinguished Members of the Court, in conclusion, Uruguay is of the
view that CARU is an important, useful and eff ective joint mechanism created by the Parties to
assist them in implementing the provisions of the 1975 Statute. It is not an autonomous entity that
has authority to act irrespective of the will of the Parties. For proof of this one need look no further
than Article55 of the Statute, which provides th at the delegation of each country, Argentina and
Uruguay, has one vote for the adoption of decisions of the Commission. Thus the two countries
control CARU, through their Foreign Ministries; it cannot act unless the two delegations concur.
It follows that the two States may decide to act without invoking CARU procedures. If one of the
countries later gets cold feet, as Argentina evidently has in this case, she should not be permitted to
go back on her decision. Pacta sunt servanda. This is especially the case where the other Party
has relied in good faith on the original agreement, as Uruguay plainly has done here.
42. Argentina has now abandoned her original contention that CARU has the power to
approve projects. This is thus now a non-issue in this case.
43. Finally, the Parties are free to agree to do directly what they have agreed to do in the
1975 Statute through CARU. The direct discussi ons initiated by Argentina render superfluous the
procedures under Articles7 to 12 of the Statute. Further, as Mr.Martin will show, there was
104
RU, Vol. II, Ann. R15. - 49 -
nothing in the agreements between the Foreign Mini sters to take up the matter directly that even
suggests the need to go back through the procedures under Article 7.
44. Mr. President, that concludes my presentation. I would request that you now invite to the
podium my colleague Mr.Lawrence Martin, who will address Uruguay’s compliance with
Article 7 of the Statute. Thank you for your kind attention.
The VICE-PRESIDENT, Acting President: I thank Professor McCaffrey for his presentation
and I give the floor to Mr. Lawrence Martin. You have the floor, Sir.
Mr. MARTIN: Thank you, Mr. President.
U RUGUAY DID NOT VIOLATE ARTICLE SEVEN
1. Mr. President, distinguished Members of the C ourt, it is a very special privilege for me to
appear before you today on behalf of the EasteRepublic of Uruguay. My task before you this
afternoon is a simple one. I will show you that, contrary to everything you heard last week from
Argentina, Uruguay did not violate Article 7 of the 1975 Statute.
2. My presentation will be divided into threerts. First, I will review the actual text of
Article7, focusing in particular on the nature of the task committed to CARU. My purpose is to
highlight the relatively limited role the Comm ission plays in the procedural mechanisms
established by Articles 7 through 11 of the Statute. Second, I will show that there is no logical or
legal reason the Parties may not agree to dispense w ith CARU’s initial role and proceed straight to
the direct, government-to-government dealings contemplated in later articles of the Statute. Lastly,
I will present the facts in the recor⎯ many of them from Argentine official sources ⎯
evidencing the Parties’ agreement to do exactly that. Particularly given the limited nature of
CARU’s procedural role and the purely consensual nature of the Parties’ choice to negotiate
directly, the joint decision to bypass CARU was not a violation of the Statute.
I.THE ROLE OF CARU UNDER A RTICLE 7
3. In evaluating Argentina’s argument that Uruguay violated Article7 by not referring the
ENCE and Botnia projects to CARU, it is important to keep in mind what role CARU plays in the
Statute’s procedural scheme. Without in any way detracting from the Commission’s many - 50 -
essential and indispensible functions, which Professor McCaffrey discussed earlier, the fact is it has
only a small role to play in the procedures stipulated in Articles 7 through 12.
4. The analysis begins, as it must, with the text of the Statute. Now, we have heard quite a
lot already about Article7, but I am not sure there was enough focus on what it actually says.
[Slide 2.] The first paragraph of Article 7 states ⎯ this is at tab 2 of your judges’ folders:
“If one Party plans to construct new ch annels, substantially modify or alter
existing ones or carry out any other works which are liable to affect navigation, the
régime of the river or the quality of its waters, it shall notify the Commission, which
shall determine on a preliminary basis and within a maximum period of 30 days
whether the plan might cause significant da mage to the other Party”. (Emphasis
added.)
5. [Slide 3.] The second paragraph of Article 7 then states: “If the Commission finds this to
be the case or if a decision cannot be reached in that regard, the Party concerned shall notify the
other Party of the plan through the said Commission.” (Emphasis added.)
6. The plain lesson this language teaches us is that CARU’s task upon receiving notification
of a project is limited. It must only determine “on a preliminary basis” ⎯ in Spanish, the word
used is “ sumariamente” ⎯ and within no more than a very brief period of 30days, whether the
project might cause significant harm to the other State. As ProfessorMcCaffrey mentioned,
Argentina has finally recognized that this is distinctly not a general power to authorize or reject
projects. It is, instead, in the nature of a preliminary screening, the purpose of which is to
determine whether or not the project needs to be brought to the attention of the other Party, as
contrasted from its representatives in CARU.
7. There are three possible outcomes to CARU’s preliminary review: the Commission might
(1)determine the proposed project poses no risk; (2)determine that it does pose a risk; (3)be
unable to come to an agreed conclusion on the ma tter, given that deadlock is always a possibility
since each Party has one vote. In the event the Commission determines the project does not pose a
risk of significant harm to the other Party, that is the end of the matter. No further procedures are
contemplated. If, on the other hand, CARU decides either that the project does pose a risk, or is
unable to come to an agreed conclusion, the effect is to set in motion the information-sharing and
negotiation obligations described in the balance of Articles 7 through 12. - 51 -
8. Under all of these scenarios, once CARU has performed its initial screening function, its
job is essentially done. As I mentioned, if CARU determines that a project poses no risk, no
further procedures of any kind are necessary. And if it determines that there is potential risk, or if
it cannot decide the matter, all further dealings are between the Parties ⎯ that is, the Governments
of Argentina and Uruguay ⎯ themselves. CARU is involved only to the extent it facilitates
communications back and forth. [Slide 3 off.]
9. If one also looks at the balance of Articl es 7 through 12, one will see that the Commission
has no further role to play in the procedures envisioned, except only that under Article8 it may
extend the applicable time frame. I will not burden the Court by reviewing each of those
provisions now, but invite the Court to do so. When it does so, the Court will appreciate the insight
of the former Chairman of Argentina’s delegation to the Commission, Ambassador Julio Carasales,
who described CARU’s role after it completes its summary review of a project as that of a “postal
agent” ⎯ “agente postal” in the original Spanish ⎯ nothing more. Argen tina seems to especially
dislike it when Uruguay reminds it of AmbassadorCarasales’s words. [Slide 4.] Lest we be
accused of taking them out of context, here is exactly what he said about CARU’s role after it
completes its preliminary, 30-day review. This is also at tab 4 of your judges’ folders:
“[T]he fundamental issue is no longer within CARU’s competence. It is an
exclusively bilateral issue which must be resolved Government-to-Government, with
the only procedural matter being that communications should be sent through the
[CARU], 105 [CARU’s] role is that of a postal agent that may not take any substantive
action.”
10. This is Uruguay’s position as well.
II. THE P ARTIES MAY AGREE TO DISPENSE WITH THE A RTICLE 7 NOTICE TO CARU
11. That brings me to my second point regarding Article7: namely, that Uruguay and
Argentina can always agree to dispense with the Article 7 notice to CARU, and proceed directly to
the party-to-party negotiations envisioned by later articles without violating the Statute.
[Slide 4 off.]
105
CMU, Vol. IV, Ann. 77 (CARU Minutes No. 5/95, pp. 712-713, 23 June 1995). - 52 -
12. Argentina’s contrary argument is legally and logically unsupportable. It describes
CARU’s role in the Article 7 process as “obligatory” 106; it describes notice to CARU as “an initial
107
and essential formality” . On this ostensible basis, Argen tina has argued: “By failing, from the
outset, to meet its obligation to refer the matte r to CARU, Uruguay immediately invalidated the
entire procedure . . .” 108 We heard this same argument last week from ProfessorPellet, among
109
others . Argentina appears to be arguing that the Pa rties could not validly agree to dispense with
this allegedly “mandatory” and “essential” formality without violating the Statute.
13. Argentina is wrong. Although the procedural provisions of the Statute, including
Article7, certainly constitute elements of the lex specialis between the Parties, they by no means
constitute jus cogens. Argentina sensibly does not argue that they do, and Uruguay is gratified by
110
Professor Kohen’s express recognition of that fact last week . The consequence, of course, is that
there is nothing at all to prevent the Parties from derogating from the Statute’s procedural
formalities. If the Parties agree to dispense with CARU’s preliminary review under Article 7, and
advance directly to the government-to-government consultations envisioned by later articles, there
is nothing stopping them. It is a simple matter of consent.
14. This is all the more true given the limited nature of CARU’s initial review and the
function it serves in the scheme of the Statute. As ProfessorMcCaffrey described earlier, the
essential function of CARU’s preliminary review is to determine whether further dealings directly
between the Parties are even necessary. If the Co mmission decides that a project poses no risk of
harm, there is no need for Party-to-Party contact s. If CARU comes to the opposite conclusion,
however, or if the two delegations cannot agree, direct Government-to-Government consultations
ensue.
15. If, as happened in this case, the Parti es have an obvious difference of opinion about a
project that will render direct dealings necessary, they are free to agree to go straight to direct talks
without being chained to the pro cedural formalities set forth in Article7. After all, where does
106RA, para. 1.161.
107
Ibid.
108
Ibid.
109See, for example, CR 2009/13, p. 29, para. 9 (Pellet).
110CR2009/14, p. 13, para. 3 (Kohen). - 53 -
CARU’s summary review lead when the two delega tions cannot agree? The answer is to direct
contacts between the two Governments. What po ssible sense would it make to insist that the
Parties adhere to all the prior formalities if they are obviously going to end up in direct talks
anyway? The answer, of course, is “none”.
16. In this respect, I was very interested to hear my friend ProfessorSands’s resounding
statement last week that, if Uruguay had notified Argentina about the Botnia project through
CARU, “I can assure you that such objection w ould most certainly have been forthcoming” 111.
OK; fair enough. So why on earth would you go back to CARU where deadlock was preordained
and when the need for direct negotiations was al ready blindingly obvious? You would not, and, as
I will explain, the Parties did not.
17. Uruguay’s sensible, real-world readi ng of the Statute finds support in general
international law, the relevance of which ProfessorCondorelli will have more to say about
tomorrow. Article18, paragraph 2, of th e 1997 United NationsWatercourses Convention, for
instance, provides that if watercourse States disagree about the need for a notification, they shall
proceed directly to cons ultations and negotiations 112. There is no need to decide first whether
notice is necessary and then revert the matter back to the beginning of the process, only to end up
back in direct negotiation. Again, the irrationality of the results speaks for itself.
18. Since Argentina is fond of recharacterizing Uruguay’s arguments, let me be clear.
Nothing I have said means that one of the Parties can unilaterally dispose of any of the procedures
set forth in Articles7 to 12. All it means is that if both Parties agree that their interests are best
served by going straight to negotiations ⎯ and skipping over the procedural steps that normally
precede and lead to such direct dealings ⎯ they are free to do so.
19. Mr.President, Members of the Court, before I take up the evidence demonstrating the
Parties’ decision to deal with each other directly, outside the ambit of CARU, there is one other
issue I should address. Argentina’s recent embrace of the sanctity of notice under Article7
represents something of a change of heart. The Statute has been in force since 1976. In the
33years since, Argentina has authorized the cons truction and operation of scores of industrial
111
CR 2009/13, p. 65, para. 8 (Sands).
11Convention on the Law of the Non-navigational Uses of International Watercourses, 1997, Art. 18, para. 2 - 54 -
plants that discharge waste into the Uruguay river and the waters directly flowing into it. Never
once did it notify CARU under Article 7. And never once did it consult with Uruguay about these
113
projects .
20. In its written pleadings, Uruguay identified many of Argentina’s industrial plants by
name and specified the environmental risks associated with them 114. Argentina has never made
any effort to deny any of the facts. In fact, ProfessorBoisson de Chazournes acknowledged
that 170 industrial plants have been built on or near the Uruguay river since 1976 115. How then did
she try to explain why Argentina never notifie d CARU about any of them under Article7?
Because, she said, none of them were, at least in Argentina’s estimation, of sufficient scope to
affect navigation, the régime of the river or water quality 116.
21. Mr.President, this rationalization is flatly inconsistent with Argentina’s own arguments
about the 1975 Statute. How many times last week did we hear Argentina decry Uruguay’s alleged
“unilateral” actions? In his summation of Argen tina’s case last Thursday, Professor Kohen stated
that the Statute “leaves no room for unilateralism” 11. Argentina cannot then seriously claim for
itself the right to determine on its own, independent of CARU and Uruguay, whether a project is or
is not of sufficient scope to affect the river.
22. I should add that Professor Boisson de Chazournes’s explanation is factually incorrect as
well. As demonstrated in Uruguay’s written plead ings, many of Argentina’s plants can and do
affect the river. To cite just one example, th e chemical plant, Fanaquímica, operates alongside the
Uruguay river in Colón, Entre Ríos Province. It manufactures chemical adhesives, plastics, glue,
aerosols, insecticides, and silicon sealers, and disch arges liquid effluents into the river. In the
year2000, it was sanctioned by Argentine e nvironmental authorities. More recently, in
January2008, Fanaquímica was sanctioned yet agai n after an investigation revealed that the
company’s effluents were producing a visible dark sheen on the river. In fact, it was temporarily
shut down until it could bring itself into compliance with Argentine environmental law. Plainly, it
113CMU, paras. 1.140-2.150.
114
CMU, Vol. X, Ann. 224 (Ministry of Industry, Energy and Mines, “Works on the River Uruguay”).
115
CR 2009/13, pp. 32-33, para. 23 (Boisson de Chazournes).
116Ibid.
117CR 2009/15, p. 58, para. 6 (Kohen). - 55 -
is of sufficient size to affect the quality of the river’s waters. Yet, Argentina never notified CARU,
or Uruguay, prior to issuing operating permits for Fanaquímica, or before authorizing it to restart
operations in 2008.
III.T HE EVIDENCE CONCERNING THE PARTIES ’ AGREEMENTS
23. Mr.President, I come then to the eviden ce showing the Parties’ agreement to dispense
with CARU’s summary review under Article 7 and pro ceed straight to direct talks. The issue has
been fully briefed in the Parties’ written pleadings and I do not intend to repeat what is stated there.
In the footnotes of this speech, you will fi nd references to the relevant sections of both Parties’
pleadings 118.
24. The essential facts are these. In October2003, Uruguay issued a preliminary
environmental authorization for ENCE. For the reasons described in our pleadings, Uruguay did
119
not and does not consider that notice to CARU was due at that time . Argentina, of course, has a
120
different view . We say Uruguay has by far the better of that argument. But be that as it may, the
undisputed fact is that as a result of th e disagreement in CARU, the Commission became
121
“paralysed”. That, by th e way, is Argentina’s word . And it is accurate. For the six-month
period between October2003 and Ma rch2004, CARU did not meet. Throughout this period, it
would therefore have been impossible for Uruguay to notify CARU under Article 7, or even send
any information to Argentina through the Commission.
25. What then happened during this period? The evidence is clear. On 27 October 2003, the
Uruguayan Foreign Ministry sent a diplomatic Note to Argentina in which it included ENCE’s
22 July 2002 environmental impact assessment, DINAMA’s 2 October technical report on the EIA,
122
and the 9October preliminary environmental authorization . Argentina does not dispute these
11CMU, paras. 3.45-3.74; RU, paras. 3.10-3.71; MA, paras. 2.32-2.35, 2.59, 2.61; RA, paras. 2.51, 2.56.
119
CMU, paras. 2.52-2.71 and 3.7-3.17; RU, paras. 2.35-2.52.
120
MA, paras. 2.15-2.29.
12MA, para. 2.29.
12CMU, para. 3.40; MA, para. 2.23. - 56 -
facts, at least in its written pleadings. Argentin a also admits that Uruguay subsequently sent its
entire file on the ENCE project to Argentina ⎯ nearly 1,700 pages ⎯ on 7 November 2003 123.
26. That is not all. Argentina then pr oceeded to analyse these materials, and in
February2004, its technical advisers to CARU issued a report specifically addressing the
124
environmental impact of the plant . Mr. President, there are two equally remarkable things about
this report. First, Argentina has never once acknowledged its existence in these proceedings.
125
Uruguay highlighted the report in its Counter-Memorial and all but dared Argentina to respond .
It did not. There is no mention of it anywhere in its Reply. Which brings me to the second
remarkable thing about the report. It establishe d that there would be no significant environmental
impact from the plant. [Slide5.] Let me show you a description of the report from a 2004
year-end report prepared by the Chief of Staff to Ar gentina’s Cabinet of Ministers. This is at tab 5
of your judges’ folders:
F“enruary4, the report from CARU’s advisors established that there
would be no significant environmental impact on the Argentine side ; it was estimated
that said impact would be, mainly, the bad odors that usually come from pulp mills
126
and that might reach the Argentine shore of the Uruguay River.”
27. The same year-end report also notes: “C ontrols on both plants will be more extensive
than those our own country has... on the Para ná River, which were nevertheless accepted by
Uruguay.” 127 I will come back to the reference to “both plants” ⎯ that is, both the ENCE and
Botnia plants ⎯ in a moment. [Slide 5 off.]
28. On the basis of this February2004 report, one of Argentina’s delegates to CARU,
Mr. Darío Garín, subsequently stated flatly and on the CARU record [Slide 6.]:
“It must be pointed out, with complete and absolute emphasis, that none of the
different technical reports evidence that the activity in question causes an irreversible
and unavoidable damage to the environment, at least of a sufficient level that would
123CMU, para. 3.40; MA, para. 2.25.
124
CMU, para. 3.42.
125CMU, para. 3.42; RU, para. 3.41.
126CMU, Vol. III, Ann. 46 (Statement by Argentine Ministry of Foreign Affa irs, International Trade and Culture,
included in “Report of the Head of the Argentine Cabinet of Ministers, Alberto Angel Fernandez, to the Argentine
Chamber of Deputies Ministry of Foreign Affairs to the Chamber of Deputies”, Report No. 64, p. 136, March 2005).
127CMU, para.3.43. - 57 -
warrant the suspensio128f the plant or oppositio n to its construction, at least with any
scientific basis . . .”
This is at tab 6 of your judges’ folder.
29. Mr.President, I am not here to discuss Article9, but I cannot help but note that
Argentina’s February2004 report looks very mu ch like an expression of no objection under that
Article.
30. At any rate, what happened then? With CARU still not meeting, the Foreign Ministers of
129
the two countries met on 2March2004 and agreed on the way forward . [Slide6off.]
Specifically, they agreed that the plant woul d be built and CARU would focus its efforts on
monitoring water quality. According to a 3Ma rch2004 press account in Argentina’s leading
paper, La Nación, the Argentine Deputy Minister for Foreign Affairs for Latin American Affairs,
Ambassador Eduardo Sguiglia, described the Fore ign Ministers’ agreement [Slide7.] this way ⎯
you will find this at tab 7 of your judges’ folder:
“It was agreed that in the next four years of construction, there will be
exhaustive monitoring to ensure complia nce with the environmental guidelines
established for the installation of the plant, which will include permanent
monitoring.” 130
31. AmbassadorSguiglia and AmbassadorPabloSader of Uruguay proceeded to exchange
drafts of the agreement throughout March and Apr il 2004 for inclusion in the minutes of CARU at
its next meeting. [Slide7off.] That agreemen t is indeed reflected in the minutes of the first
meeting of CARU since October2003, which took place on 15May2004. I have to say,
Mr. President, one of the more remarkable aspects of Argentina’s presentations last week was the
lengths to which they went not to show you that agreement. Professor Kohen had a lot to say about
it, but he dared not actually show it to you. Allow me do so. [Slide 8.] Mind you, this is from the
agreed minutes of CARU and can be found at tab 8 of your judges’ folders:
“On 2 March 2004 the Foreign Ministers of Argentina and Uruguay reached an
understanding with respect to the proper course of action that this matter will take, that
is, to have the Uruguayan government pr ovide the information relating to the
128
CMU, Vol. IV, Ann. 99 (CARU Minutes No. 01/04, pp. 18-19 (15 May 2004)).
12CMU, para. 3.45.
13CMU, Vol. IX, Ann. 183 (La Nación (Argentina), “Uruguay Promises to Inform the Government about the
Paper Mill” (3 March 2004)). - 58 -
construction of the plant, and with respect to the operational phase . . ., to 131e CARU
undertake the monitoring of water quality in conformity with its Statute.”
32. In its written pleadings and again last week, Argentina has tried to tell you that this
agreement reflects nothing more than a decision to send the ENCE plant back to CARU for a
summary review under Article 7 132. We say that is wrong, and obviously so. First, the text. It says
absolutely nothing about sending the matter back to CARU for review under Article 7. Instead, it
says that CARU will “undertake the monitoring of wa ter quality in conformity with its Statute”.
Expressio unius est exclusio alterius . Instead, the agreement reflects that the construction and
eventual operation of the plant are agreed facts. Uruguay submits that there is just no other way to
read the statement that it will provide information “relating to the construction of the plant” and
that “with respect to the operational phase” CARU will undertake monitoring. [Slide 8 off.]
33. Second, the practicalities of the situati on. Argentina would have you believe that the
Foreign Ministers of Argentina and Uruguay met, and two ambassadorial level officials conferred
for over a month, only to agree to send the matter back to CARU so it could perform its initial
screening function, the purpose of which, as we ha ve seen, is to determine whether higher level
talks are necessary. It just makes no sense. Moreover, the truth is that Argentina’s technical
advisers to the Commission had already reviewed the information concerning the plant and come to
the conclusion that “there would be no significant environmental impact on the Argentine side”.
There was therefore no need to send the matter back for a review that had already taken place.
34. Third, the subsequent conduct. After the fact, there is nothing in the record to suggest
that CARU expected to undertake a review under Article7. Exactly as one of its own delegates
stated on the record on 15 May 2004, “an important limiting factor in our position is the agreement
133
executed by the Foreign Ministers on 2March2004” . Instead, what CARU proceeded to do
was design the water quality monitoring programme known as “PROCEL”, to which
Professor Boyle referred earlier today. Each and every one of the drafts of PROCEL, and the final
plan as adopted in CARU, which was later aband oned by Argentina, contain exactly the same
131
CMU, Vol. IV, Ann. 99 (CARU Minutes No. 01/04, op. cit., p. 33); emphasis added.
132
See, for example, RA, para. 2.106.
13CMU, Vol. IV, Ann. 99 (CARU Minutes No. 01/04, p. 33, 15 May 2004). - 59 -
134
phrase in the very first line: “Taking account of the future installation of cellulose plants...”
Again, the installation is a given and agreed fact.
35. This same understanding is reflected in multiple other Argentine documents, a great
many of which are cited in the written pleadings ⎯ or at least the Uruguayan written pleadings 13.
Here, now, let me mention just one. According to a statement of the Argentine Foreign Ministry of
Foreign Affairs contained in a 2004 year-end report to [slide 9] the Argentine Senate that is at tab 9
of your judges’ folders:
“On 2 March 2004, the Foreign Ministers of Argentina and Uruguay reached an
understanding on the course of action to give to this subject. This is, for the
Government of Uruguay to facilitate inform ation relative to the construction of the
plant, and in regard to the operational phase, inst ruct the CARU to proceed to carry
out a monitoring of the water quality of the River Uruguay . . . The understanding of
the Foreign Ministers, the note from the Governor of Entre Rios and the report of the
technical experts coincide in that 136he CARU should concentrate its activity on the
subject of mechanisms of control.”
36. I hesitate to repeat myself, but there is just no way to read this so that it means anything
other than that it was understood that the plant would be built and CARU would focus exclusively
on monitoring.
37. Mr.President, you heard quite a lot, from quite a lot of people last week, about certain
statements attributed to Uruguay’s former Foreign Minister, Mr.DidierOpertti, and one of its
Ambassadors, Mr. Felipe Paolillo. [Slide 9 off.] With respect to former MinisterOpertti’s
2003 statements about CARU, Uruguay has already made clear on multiple occasions that both the
ENCE and Botnia plants are within CARU’s comp etence, so the issue is moot. The fact that
virtually every one of its counsel seized on the same single statement reflects, I suspect, a certain
lack of material to work with, more than anythi ng else. Moreover, the statements attributed to
former MinisterOpertti came long before the agreement between Uruguay and Argentina I have
described for the Court, and quickly faded into historical irrelevance anyway.
38. With regard to Mr. Paolillo’s statement, that Uruguay did not formally inform Argentina
about ENCE through CARU but, rather, “agreed to other alternative procedures at the highest
134
CMU, para. 3.28.
13CMU, paras. 3.46-3.49 and 3.54-3.58.
13CMU, Vol. III, Ann. 47 (Statement by Argentine Ministry of Foreign Affa irs, International Trade and Culture,
included in Report of the Head of the Cabinet of Minist ers, Alberto Angel Fernandez, to the Argentine Senate,
Report No. 65, p. 617, Mar. 2005); emphasis added. - 60 -
levels”: this, of course, is a reasonably accurate depiction of reality. In our view, the essential fact
is that Argentina was, just as the Ambassador said, fully informed and consulted and, that at the
highest levels. Indeed, it specifically came to the conclusion that the ENCE plant was
environmentally viable.
39. So much for the argument that Uruguay violated Article 7 with respect to ENCE.
40. The evidence also shows that Uruguay did no t violate Article7 with respect to Botnia
either. Indeed, the facts show that the agreem ent concerning ENCE was later extended to Botnia,
as well.
41. This is perhaps most easily demonstrated by reference to another one of Argentina’s own
official documents. A 2004 year-end report, prepared by the Chief of Staff of the Argentine
Cabinet of Ministers, contains an extremely informative ⎯ and we say dispositive ⎯ question and
answer between an Argentine legislator and the Fo reign Ministry. [Slide10.] The full text is
before you at tab10 of your judges’ folders and projected on the screens 137. Although a 2004
138
year-end report, it was actually prepared in March 2005 .
42. Mr.President, I do not propose to read the entire text. But what makes it particularly
interesting, and the reason we offer it to you, is the extent to which it defines Argentina’s
understanding of the scope of its controversy with Uruguay, Argentina’s position on that
controversy, and the agreement putting it to an end. As you can see, the heading above the
question and answer make clear that the issue encompasses the “installation of the cellulose plants”
that is, a plural reference to both plants. The question likewise addresses itself to the installation of
the “plants”, again, plural. The scope of what is referred to as “the official Argentine claim”, and
thus the controversy, similarly encompasses “the installation of the cellulose plants”. Therefore,
when the report states, as you see in the middle of the page, that the Government of Argentina had
“put an end to the controversy”, it can onl y mean the controversy with respect to both plants. This
reading is confirmed in subsequent paragraphs of the statement which makes reference to the time
“after the plants begin to operate” and the fact that “controls on both plants will be [i.e., future
137
CMU, Vol. III, Ann. 46 (Statement by Argentine Ministry of Foreign Affa irs, International Trade and Culture,
included in Report of the Head of the Argentine Cabinet of Ministers, Alberto Angel Fernandez, to the Argentine
Chamber of Deputies Ministry of Foreign Affairs to the Chamber of Deputies”, Report No. 64, p. 136, Mar. 2005).
13Ibid., cover page. - 61 -
tense, unconditional ⎯ ‘serán’ in Spanish] more extensive than the ones our country has”. There
can therefore be no doubt that Argentina understood th at the controversy covered “the two plants”,
and that that controversy as to both ENCE and Botnia ⎯ not just ENCE⎯ was “put to an end”.
43. Before leaving this report, one other point bears mention. Although the report relates to
events during the year 2004, it was, as I said, delivered in March2005; that is, one month after
Uruguay issued Botnia’s preliminary environmenta l authorization inFebruary2005. Uruguay’s
allegedly “unilateral” authorization of the Botn ia plant thus did not elicit a contemporaneous
objection from Argentina at the highest levels. Quite the contrary. As of March2005, the
controversy was over. [Slide 10 off.]
44. Again, CARU’s subsequent conduct confirms the point. [Slide11.] As I have already
mentioned, each and every draft of the joint monitoring programme PROCEL contains precisely
the same phrase, “taking into account the future installation of cellulose plants . . .” You can find
that at tab11 to your judges’ folders. You w ill also see the reference to “the facilities”, again
plural. In fact, the PROCEL monitoring programme was, as Professor Boyle mentioned, formally
approved and adopted, in CARU, on 12 November 2004 13. It thus has the force of an international
agreement between the two Parties and represents a binding obligation on Argentina with which it
did not comply.
45. Mr.President, even as CARU was putting the finishing touches on the PROCEL
programme, [Slide11 off] the ground almost litera lly shifted under Argentina’s feet. Popular
opposition to the plants among elements of th e Gualeguaychú population exploded, as did
discontent with the Argentine Government’s approach to the issue. This is most dramatically
illustrated by the fact that on 30April2005, a pproximately 40,000Argen tinians marched on the
140
General San Martín Bridge connecting Argentina and Uruguay in protest . As
Ambassador Gianelli mentioned in his opening speech, they have been there virtually ever since.
46. The result of this mounting internal pressure was that Argentina began backtracking from
its prior acceptance of the plants, and CARU agai n became stuck. On 5May2005, Argentina’s
Minister for Foreign Affairs, RafaelBielsa, sen t a letter to his Uruguayan counterpart, expressly
139
CMU, Vol. IV, Ann. 108 (CARU Minutes No. 08/04, 12 Nov. 2004).
14CMU, para. 3.67. - 62 -
requesting further negotiations about the Botnia and ENCE plants, but specifically outside the
ambit of CARU. [Slide12.] The text of Foreign MinisterBielsa’s letter is included at tab2 of
your judges’ folder and reads:
“Dear Mr. Minister, dear friend,
I am writing to you in connection with the project for the installation of two
cellulose... plants in the area of Fray Bentos, opposite the Argentine city of
Gualeguaychú, Province of Entre Ríos.
In this regard, I must again convey to you the deep concern of the population
and authorities of the said province ⎯ concern that the Argentine federal government
shares ⎯ as a consequence of the environmental impact that the operation of these
plants could bring about.
Without prejudice of the water quality control and monitoring procedures by
CARU, this situation, due to its pot ential seriousness, requires a more direct
intervention of the competent environmental authorities, with the cooperation of
141
specialized academic institutions.”
47. Recognizing the difficult political situation th e Government of its much larger neighbour
found itself in, Uruguay acceded to Argentina’s requ est for further consultations and negotiations.
[Slide12off.] Thus, GTAN was born. As st ated in a July2005 report from the Head of
Argentina’s Cabinet of Ministers to the Argentine Se nate [Slide 13], the text of which is at tab 12
of your judges’ folders:
“On 31May, after exchanging proposals and counterproposals, both countries
reached the following agreement:
‘In conformity with what was agreed to by the Presidents of the
Republic of Argentina and the Eastern Republic of Uruguay, the Foreign
Ministries of our two countries cons tituted, under their supervision a
group of Technical Experts for complementary studies and analysis,
exchange of information and follow up on the effects that the operation of
the cellulose plants that are being constructed in the Eastern Republic of
142
Uruguay will have on the ecosystem of the shared Uruguay River.’”
48. ProfessorCondorelli will have more to sa y about the language of this agreement
tomorrow, and in particular the fact that this agreement in no way detracted from the prior
understandings, relied upon by Uruguay, that the plants would be built. The point on which I invite
14RU, Vol.II, Ann.R15 (Letter sent from the Argentine Minister for Foreign Affairs, RafaelBielsa, to the
Uruguayan Minister for Foreign Affairs, Reinaldo Gargano, 5 May 2005); emphasis added.
14RU, Vol.II, Ann.R14 (Statement by the Argentine Mi nistry of Foreign Affairs, International Trade and
Culture, included in “Report of the Head of the Cabinet of Ministers, Alberto Angel Fernandez, to the Argentine Senate”,
Report No. 65, p. 620, July 2005); emphasis added. - 63 -
the Court to focus for present purposes is the fact that it was Argentina that invited Uruguay to
participate in “a more direct intervention” by the authorities of the two States, rather than proceed
through CARU under Article 7 or otherwise. If, contrary to the facts I have now set out, the Botnia
plant was still ripe for CARU’s preliminary review under Article7, it was Argentina that invited
Uruguay to skip that step and proceed straight to high-level consultations and negotiations. As
stated in the final paragraph of Argentina’s 5Ma y letter, “this situation, due to its potential
seriousness, requires a more direct intervention of the competent environmental authorities”.
Argentina cannot now be heard to complain a bout the fact that Uruguay accepted its proposal.
[Slide 13 off.]
49. In its written pleadings and again last week, Argentina tried to escape the implications of
this agreement by claiming that, like the 2Ma y2004 agreement on ENCE, it was nothing more
than an agreement to send the matter back to CARU for preliminary review under Article 7. Yet,
once again, the argument makes no sense. First, as I described, the Parties had already agreed that
both plants would be built, subject to monitoring by CARU. Second, even were that not the case,
does Argentina seriously expect the Court to belie ve that the Presidents and Foreign Ministers of
Argentina and Uruguay would invest so much of their time working to achieve only an agreement
to send the matter back to CARU for a purely preliminary review, especially when the only
possible outcome at that point would have been further direct dealings between the two
Governments? It just cannot be. Third, and very much related to that last point, reference back to
CARU at that point would have been an exercise in futility. Argentina itself has recognized that it
was exactly because recourse to CARU at that point was pointless that GTAN was created. In an
important diplomatic Note dated 12January2006, about which Prof essorCondorelli will have
more to say tomorrow, the Argentine Foreign Mini stry itself recounted the events leading to the
creation of GTAN as follows: “The lack of agreement within [CARU] . . . led the Governments of
both countries to deal with the question directly and to establish a High Level Technical Group
(GTAN) in May 2005.” 143
14CMU, Vol.III, Ann.59 (Diplomatic Note sent from Argentine Minister for Foreign Affairs to Uruguayan
Ambassador in Argentina, 12 Jan. 2006). - 64 -
50. Mr.President, I respectfully submit that the evidence on the record before you shows
unmistakably that Uruguay did not violate Article7 of the 1975Statute. Instead, Uruguay and
Argentina together jointly decided to dispense with CARU’s prelim inary, 30-day review in favour
of the direct negotiations contemplated in Article12. The direct negotiations were conducted by
the GTAN, which was specifically established by the Parties for that purpose.
51. Mr.President, Members of the Court, thank you very much for your patient attention.
Tomorrow morning, ProfessorCondorelli will address what happened in and during the GTAN
process, and show that Uruguay fully complied with all of its obligations under the Statute to
consult and to negotiate in good faith. That concludes Uruguay’s presentations this afternoon.
The VICE-PRESIDENT, Acting President: Tha nk you, Mr.Martin. The Court now rises,
and will resume tomorrow morning at 10o’clock, when Uruguay will comp lete its first round
argument.
The Court rose at 12.40 p.m.
___________
Audience publique tenue le mercredi 23 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)