Traduction

AU

CR 2006/55 (traduction)

CR 2006/55 (translation)

Lundi 18 décembre 2006 à 15 heures

Monday 18 December 2006 at 3 p.m. - 2 -

8 Le PRESIDENT: Veuillez vous asseoir. La Cour est réunie aujourd'hui pour entendre

l’Argentine en ses observations orales, et je donne la parole à Son Exc. Madame

Susanna Ruiz Cerutti, l'agent de la République argentine.

Ms RUIZ CERUTTI:

1. Thank you. Madam President, Members of the Court, it is a great honour to appear before

your distinguished Court as Agent of the Argen tine Republic in connection with the Uruguayan

request for the indication of provisional measures filed in the Court on 30 November last.

2. Uruguay filed this request in the context of the case concerning Pulp Mills on the River

Uruguay (Argentina v. Uruguay) initiated by Argentina by means of the Application instituting

proceedings filed on 4 May 2006.

3. I shall refer to the situations and factsmentioned by Uruguay in order to make matters

clearer and to correct certain distortions or false hoods. It should be understood that this does not

imply any acceptance of those situations or tho se facts or any others, including the requests and

pleadings of Uruguay. These references entail no ac ceptance of jurisdiction or of the admissibility

of the request.

4. Despite the oral fireworks we heard this morning, the question raised by the Uruguayan

request for the indication of provisional measures is still a very simple one. There is no connection

between this issue and the merits of the case brought before the Court on the basis of the

1975 Statute of the River Uruguay.

5. I shall deal with three aspects: first, the Court’s lack of jurisdiction; secondly, the lack of

a link between the request for the indication of provisional measures and the Pulp Mills case;

thirdly, I shall comment on certain allegations by Uruguay concerning intentions falsely attributed

to the Argentine Government.

6. In its request and in the Memorial whic h it has just finished drafting, Argentina has

presented the substance of the case to the Court. It has asked that its rights under the 1975 Statute

of the River Uruguay be recognized and effectively protected by the Court. Faced with Uruguay’s

9 granting of unilateral authorization to build pu lp mills and related in stallations on the River

Uruguay, Argentina has requested the Court to ensu re that Uruguay conforms to the norms of the - 3 -

Statute concerning information and prior consultations, so that it can have sufficient information to

evaluate, under the Treaty mechanism, the imp act of these mills on the River Uruguay and the

areas affected by it and its ecosystem, in accord ance with the substantive rules imposed on the

parties by the same 1975 Statute.

7. Argentina has submitted a request for the indication of provisional measures aimed at the

suspension of construction of these mills and rela ted installations pending a decision by the Court

on the merits of the case. The Argentine request for provisional measures was not granted by the

Court.

8. Both the Application instituting proceed ings and the request for the indication of

provisional measures submitted by Argentina were based on the Statute of the River Uruguay,

which is the only instrument establishing the Court’s jurisdiction in this case.

9. Recognition of the Court’s jurisdiction over the case brought before it by Argentina does

not imply that the Court has jurisdiction to deal with any procedural incident such as the request for

the indication of provisional measures submitted by Uruguay. You should not be deceived by this

approach.

10. What is the purpose of the incidental request submitted today by Uruguay? Judging by

what is stated in the “reasons for this request” section, Uruguay complains that “organized groups

of Argentine citizens have blockaded a vital inte rnational bridge over the Uruguay River, shutting

1
off commercial and tourist travel from Argentina to Uruguay” .

11. Madam President, Members of the Court, the filing of Uruguay’s request has altered the

Court’s schedule on the eve of the end-of-year holidays and has drawn Argentina into this

incidental procedure at a time when it should be completing its Memorial, in order to defend

alleged rights that are not even at issue and cannot be at issue in this dispute.

10 12. Indeed, neither freedom of movement, nor freedom of commerce or tourism are rights

governed by the Statute of the River Uruguay.

13. Madam President, Members of the Court, I should like to draw your attention to the real

subject matter of the Uruguayan request. The only issue is the blockade of roads in Argentine

1
Case concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay) , Request for the indication of
provisional measures submitted by Uruguay, 30 November 2006, para. 2. - 4 -

territory, not that of an international bridge or an international river. The road blockades

complained of by Uruguay are nothing new for Uruguay or for Argentina.

14. As I have just noted, the road blockades in Argentina are nothing new. Why? Because,

in relation to the same acts (but on the basis of the Treaty of Asunción 2 establishing Mercosur),

Uruguay also instituted proceedings before an ad hoc arbitral tribunal of Mercosur, under an

instrument known as the Olivos Protocol 3. The tribunal handed down its decision in the case on

6 September last.

15. In the proceedings before the Mercosur ad hoc tribunal, Uruguay contended that there

was no connection between the road blockades on Ar gentina territory and the construction of the

mills which are the subject matter of the case brought by Argentina before this Court. In its

memorial to the arbitral tribunal of Mercosur, Uruguay stated:

“In the first place, the construction of the above-mentioned plants and the
possible environmental considerations related to them have absolutely nothing to do

with the dispute [before the ad hoc arbitral tribunal ⎯ that is, the dispute concerning
the blocking of roads]. They cannot form part of the facts or the legal basis of the
dispute. [Translation by the Registry.]

This means that Uruguay said the opposite, before the Mercosur arbitral tribunal, of what it

claims today before the Court.

16. The least that can be said is that it is not acting in good faith. One cannot blow hot and

cold at the same time.

11 17. Uruguay described the road blockades as follows: “they were announced in advance and

widely publicized” in its request for provisional me asures. But these are the same facts that were

already raised before the Mercosur ad hoc tribunal. In other words, to defend its interests on the

question of the road blockades in Argentina, Ur uguay decided to use the dispute settlement system

of Mercosur, which exercised its jurisdiction and rendered a decision on the subject.

2Treaty establishing a common market between the Arge ntine Republic, the Federativ e Republic of Brazil, the

Republic of Paraguay and the Eastern Republic of Uruguay, 26 March 1991, UNTS, Vol. 2140, p. 319. Document No. 1
submitted by Argentina on 18 December 2006.
3Olivos Protocol for the Settlement ofDisputes in Mercosur, 18February2002, UNTS, Vol.2251, p.288.
Document No. 2 submitted by Argentina on 18 December 2006.

4First written Uruguay submission before thad hoc Tribunal of Mercosur, 3July2006 (extract) (para.159).
Document No. 4 submitted by Argentina on 18 December 2006. - 5 -

18. The Treaty of Asunción and the Olivos Prot ocol rule out the possibility of applying to

any other forum once a specific course of action has been selected. It is Uruguay that chose to

seise the ad hoc tribunal of Mercosur, and the latter handed down its decision in September last.

19. Uruguay cannot today come before the Court to obtain a new decision on the same facts

that have already been decided by the ad hoc tribunal.

20. The Court has no jurisdiction to that effe ct. There is no lack of a forum to which

Uruguay may submit its case, there is an abuse of forum on the part of Uruguay whose forum

shopping cannot be accepted by the Court.

21. Uruguay claims that the blockading of ro ads in Argentine territory has had effects on

trade and tourism between the two countries, as well as on the relocation of the ENCE plant and the

construction of the Orion plant, and that all this has been encourag ed by the Argentine

Government. None of these assertions is valid and they contradict the reality.

Regarding trade and tourism between the two c ountries, the overall figures, contrary to what

is asserted by Uruguay today, show fairly subs tantial growth as regards both the movement of

persons in both directions and the moveme nt of export and import goods between the two

countries, and this is true of the periods during which the roads have been blockaded.

22. Data obtained by my country’s Secretar iat of Tourism show a steady and continuous

increase in the number of Argentine citizens selecting Uruguay as their holiday destination. In the

first three quarters of this year, the percentage va riation was almost five percent compared with the

12 same period of last year. Similarly, the number of Uruguayan tourists entering Argentina increased

5
during the same period .

23. In this connection, it is not surprising that the present main concern for tour operators in

Uruguay (who met with the Uruguayan President on Friday 15December, just three days ago) is

the problem of security in the town of P unta del Este, Uruguay’s largest beach resort 6, not the road

blockades, but the problems of security.

5
Tourism data. Uruguay citizens in Argentina and Argentine citizens in Uruguay (2005/2006). Document No. 13
submitted by Argentina on 18 December 2006. www.indec.gov.ar.
6Press article, “Vazquez meets tour operators”, El PaísDigital, 15December2006, Document No.11 submitted
by Argentina on 18 December 2006. http://elpais.com.uy/06/12/15/ultmo_253496.asp. - 6 -

24. Concerning bilateral trade, the data in my possession confirm fairly conclusively that

such trade has increased. Indeed, Uruguayan expor ts to Argentina have increased by more than

17percent, while at the same time Argentin e sales to Uruguay have grown by more than

50 per cent over the same period. 7

25. With your permission, I can illustrate the fact that there are three road links between

Argentina and Uruguay on a 150km stretch of th eir frontier. In addition, on the River Uruguay

and the Rio de la Plata, there are passenger boat services, ferry boats, hovercraft and sea cats, not to

mention the numerous daily air services and th e availability of numer ous ports along both

countries’ river banks.

26. Argentina nevertheless stresses that neith er the blockades on certain roads, nor their

possible impact on tourism or international trade fall under the jurisdiction of this Court.

It is quite clear that aspects relating to traffic, tourism and trade are portrayed to the Court by

Uruguay as a consequence of the road blockades for the sole purpose of establishing a link with the

construction of the pulp mills.

27. In paragraph4 of its request, Uruguay asser ts that the inhabitants of the town of

Gualeguaychú have organized road blockades “exactly as happened in the recent past when similar

blockades were imposed”. These and other similar blockades in Argentine territory have had not

13 the slightest effect on the construction of the pul p mills near FrayBentos, opposite the town of

Gualeguaychú.

28. On the contrary, the two industrial projects, the names of which ⎯ I would remind

you ⎯ are CMB and Orion, seem to be in excellent health, despite the tendentious and totally false

claims made by Uruguay in its request for the i ndication of provisional measures, which we heard

this morning.

29. In order to convince the Court that Ur uguay’s alleged rights in relation to the Orion

project are threatened, Uruguay gave a deceptive description of the reason for which ENCE, which

is developing the CMB project, decided not to build its plant at the planned location in Fray

7
Bilateral trade data. Imports and exports (2005/2006). Document No.14 submitted by Argentina on
18 December 2006. http://cei.mrecic.gov.ar, www.indec.gov.ar. - 7 -

Bentos: “in the face of Argentina’s pressure, ENCE decided not to complete construction of its

plant. Thus, only the Botnia plant remains under construction”.

30. To refute this accusation of Argentine pressu re, let us refer to the words of the President

of ENCE, Mr.JuanArreghi. At the press c onference announcing his decision, held at the

headquarters of the Presidency of the Eastern Republic of Uruguay, Mr.Arreghi explained the

reason for relocating the M’Bopicuá plant near Fr ay Bentos in unambiguously clear terms: “We

are not going to relocate because there is a conf lict; we are going to relocate because from an

8
industrial perspective it is impossible to build tw o plants like the planned ones in Fray Bentos” .

And this was said by Mr.Arreghi at the Presidency of the Republic, in a press conference in

Uruguay.

31. And he went on to complain about the f act that Uruguay had granted authorization for

the construction of the Orion mill at Botnia, a s hort distance away from his own, and that ENCE

9
should have had a preferential right .

32. The most recent developments concerni ng the ENCE project in Uruguay should also be

mentioned. The enterprise decided to relocate its project further southwards, still in Uruguay, on

the Rio de la Plata, under a new project which pr ovides for an investment of almost double the

amount planned for Fray Bentos (the figure of US$1,250 million is mentioned), as well as the

14 doubling of production compared with the plan for Fray Bentos (1 million tonnes of cellulose pulp

a year).

33. We wonder what is meant by the Argentine pressure mentioned by Uruguay in its written

pleadings, which is said to have led ENCE to de cide not to build its plant. This Uruguayan

assertion, as contained in its request, would appear to be totally inconsistent with good faith and

10
totally divorced from reality .

34. For its part, Botnia is constantly annou ncing that the mill will be ready by the final

quarter of 2007, which is what was planned for the project from the outset. As I speak to you now,

8
Presidency. Eastern Republic of Uruguay, 21September 2006, “ENCE stays; it studies relocation of its pulp
mill”. Document No.5 submitted by Argentina on 18December2006. http://www.presidencia.gub.uy/_web
/noticias/2006/09/2006092109.htm
9
Ibid.
10Press article, “ENCE will make an investment of US$1,250 million”, El País Digital, 13December2006.
Document No. 9 submitted by Argentina on 18 December 2006. http://www.elpais.com.uy/06/12/13/ultmo_253051.asp. - 8 -

the Orion mill is at 70 per cent of the planned construction 11. I remind you that in June when we

came here for the request for the indication of provisional measures submitted by Argentina, the

Orion mill had been only 25 per cent constructed. Today, six months on, it is already 70per cent

complete. This therefore means that construction has proceeded normally, and I would even say at

an accelerated pace, in recent months.

35. It is not correct to say, as the Agent of Uruguay did, that the roadblocks have adversely

affected the construction of the mills. The fact s speak for themselves. The construction of the

mills has continued at its own pace. There is no prejudice, there is no “new trend” which might

lead to a prejudice, there is no escalation, there is no total blockade of Uruguay, and there is no

economic strangulation of Uruguay as a result of the roadblocks. None of those assertions is true.

36. The roadblocks are sporatic, partial and ge ographically localized; they have taken place

“in the recent past”, as Uruguay affirms, and have not prevented the construction of Botnia’s Orion

mill from continuing to advance rapidly, as I have said, in the last six months. Construction is even

ahead of schedule despite a workers’ strike lasting nearly three weeks.

37. The roadblocks and the c onstruction of the mill are two qu ite different events, without

there being any cause-and-effect relationship between them, without any link of objective causality

15 and without any relationship with the norms of the 1975Statute, and consequently without any

relationship with the jurisdiction of the Court.

38. And I venture to repeat what I have already noted: the roadblocks in Argentina are not a

new circumstance for Uruguay. Uruguay has already obtained an award from a Mercosur ad hoc

arbitral tribunal, which ruled on all the matters submitted in the case on 6 September last.

As I have already said, Uruguay affirmed before that ad hoc tribunal that there was no

relationship between the roadblocks in Argentine territory and the construction of the mills which

are the subject of the case submitted by Argentina to the Court. In its Memorial to the Mercosur

arbitral tribunal, Uruguay stated:

“In the first place, the construction of the above-mentioned plants and the
possible environmental considerations related to them have absolutely nothing to do

11
Press article, “Botnia has already completed 70% of the works”, El Espectador, 30 November 2006. Document
No. 8 submitted by Argentina on 18 December 2006. http://www.espectador.com.uy/nota.php?idNota=84329. - 9 -

with the dispute [before the ad hoc arbitral tribunal]. They cannot form part of the
facts or the legal basis of this dispute. ”

And I insist, Uruguay denied before the Mercosur arbitral tribunal what it is arguing today before

the Court. This is clear evidence of inconsistency. It is clear evidence of Uruguay’s need to invent

an artificial link for use before the Court. It is a travesty of reality.

39. With regard to Uruguay’s offensive allega tions in its request and its oral pleadings, I

wish to voice my indignation at the tone and, in particular, at the content of the allegations we have

heard this morning from counsel for Uruguay, namely that my country is seeking to obtain through

coercion what it cannot obtain through the Court. This type of insulting statement is hardly in

keeping with the serenity which should prevail in th is Great Hall of Justice. Madam President,

Members of the Court, I reaffirm the absolute confidence of the Argentine Republic in this

distinguished Court that Argentina itself has seised.

16 40. In its request for the indication of pr ovisional measures, Uruguay maintains that the

Argentine Government encouraged the roadblocks in the Gualeguaychú area and it went so far as

to attribute this attitude to the President of Argentina, Mr. Néstor Kirchner.

41. Argentina regrets having to take issue with one of the citations that Uruguay includes in

its request for the indication of provisional measu res, and which was recalled this morning. In

paragraph 22 of the request, Uruguay makes this reference:

“PresidentKirchner publicly declared th at [the] Government of Argentina will
not take any action to interfere with the bloc kades: ‘there will be no restraint against
our brothers from Gualeguaychú’.”

42. The words attributed to the Argentine President which appear in Annex23 to the

Uruguayan request, to which footnote28 refers the reader, do not correspond to a genuine

document. The Internet site to which it refers c ontains no such document. What is there, at the

same date and in the same periodical, is another article reproducing completely different statements

by PresidentKirchner in which he expresses the position of the Argentine Government. That

position does not support the roadblocks and appli es an active policy of persuasion but not of

repression to discourage that type of social movement . Nobody is threatened with or targeted by

12
First Uruguayan written subm ission for the Mercosuad hoc tribunal, 3July2006 (extract) (para.159).
Document No. 4 submitted by Argentina on 18 December 2006. - 10 -

coercive action. In short, the argument of Uruguay is not only groundless but also insulting to

Argentina.

43. The Argentine Minister for Foreign A ffairs, Mr.JorgeTaiana, has on many occasions

spoken in the same vein, most recently on the occas ion of the meeting of Mercosur ministers held

in Brasilia last Friday, 15 December. This same policy was recognized in the arbitral award of the

Mercosur ad hoc tribunal on 6 September:

“142. Good faith must be presumed, and the evidence produced does not show
that Argentina promoted or encouraged the attitude assumed by the citizens.
Moreover, their attitude was to call the attention of the Argentine Government [to] the

problem. Consequently, it does not appear that the Argentine authorities had the
intent of preventing the free traffic and mock the commitment under Article1 of the
Treaty of Asunción, since the policy of tolerance adopted by the Argentine

Government in connection with the demonstr ations of the citizens of Gualeguaychú,
seems not to differ from that adopted in connection with the other conflicts that
occurred in the cities or the roads of the interior of Argentina. This makes the tribunal
conclude that the Argentine Government di d not intend to discriminate in order to

damage the commercial traffic with Uruguay.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17 180. This tribunal concludes that the Argentine Government did not have a
discriminatory intent to damage the comme rcial traffic with Uruguay. Good faith
must be presumed and the evidence produced does not show that the Government of

the Respon13nt Party [Argentina] promoted or encouraged the attitude of the
citizens.”

44. To conclude, Madam President, Members of the Court, from a reading of the Uruguayan

request it emerges clearly that the Court lacks juri sdiction on the basis of Article 60 of the Statute

of the River Uruguay to rule on the provisional measures requested by Uruguay.

45. The submission of Uruguay is also not admissible since it is unrelated to the case

concerning Pulp Mills on the River Uruguay brought by Argentina on the basis of violation by

Uruguay of the rules of the 1975 Statute.

46. Nor has the Uruguayan request any link w ith the merits of the dispute submitted by

Argentina to your distinguished Court.

47. Madam President, Members of the Court, ProfessorsMarceloKohen and AlainPellet

will subsequently be developing the arguments that I have just laid before you succinctly.

13
Case concerning Pulp Mills on the River Uruguay (Argentinv. Uruguay), Request for the indication of
provisional measures submitted by Uruguay, 30 November 2006, Ann. 2. - 11 -

I thank you very much for your attention and I request you to give the floor to

Professor Marcelo Kohen. Thank you very much.

Le PRESIDENT : Je vous remercie, Excellence. Je donne la parole à M. Kohen.

KOr. EN:

II. HE URUGUAYAN REQUEST FOR THE INDICATION OF PROVISIONAL MEASURES

HAS NO LINK WITH THE S TATUTE OF THE R IVER URUGUAY

1. Madam President, Members of the Court, it is a great honour to appear once more before

your distinguished Court, even if the occasion is not justified since it is obvious that the Uruguayan

request for the indication of provisional measures fa ils to fulfil any of the conditions laid down by

the Statute of the Court and developed in your case law, and in particular that your Court

manifestly lacks jurisdiction in the case.

2. It falls to me to show that the request for the indication of provisional measures submitted

by the Eastern Republic of Uruguay on 30 November 2006 has no link with the Statute of the River

18 Uruguay, the only international instrument serving as a basis for the Court’s jurisdiction to hear the

case concerning Pulp Mills on the River Uruguay.

3. The basic principle regarding provisional measures was made clear very early on by the

Permanent Court in the Polish Agrarian Reform case: “according to [Article41 of the Statute of

the Court], the essential and necessary condition for provisional measures to be requested, should

the circumstances so require, is that such measu res should tend to safeguard the rights which are

the subject of the dispute before the Court” ( Polish Agrarian Reform and German Minority, Order

of 29 July 1933, P.C.I.J., Series A/B, No. 58, p.177. See previously to the same effLegal

Status of the South-Eastern Territory of Greenland, Order of 3August1932, P.C.I.J., SeriesA/B,

No. 48, p.285. And subsequently: Anglo-Iranian Oil Co. (United Kingdom v. Iran), Interim

Protection, Order of 5July1951, I.C.J. Reports 1951p. 93; Interhandel (Switzerland v. United

States of America), Interim Protection, Order of 24October1957, I.C.J. Reports 1957, p.111;

Fisheries Jurisdiction (United Kingdom v. Iceland), Interim Protection, Order of 17August1972,

I.C.J. Reports 1972 , p.15, para.12Fisheries Jurisdiction (Federal Republic of Germany v.

Iceland), Interim Protection, Order of17August1972, I.C.J. Reports 1972, p. 33, para. 12; - 12 -

Aegean Sea Continental Shelf (Greece v. Turkey), Interim Protection, Order of 11 September 1976,

I.C.J. Reports 1976, p. 11, para. 34; United States Diplomatic and Consular Staff in Tehran

(United States of America v. Iran), Provisional Measures, Order of 15December1979, I.C.J.

Reports 1979, p. 19, para. 36; Arbitral Award of 31July1989 (Guinea-Bissau v. Senegal),

Provisional Measures, Order of 2 March1990, I.C.J. Reports 1990, p. 69, para. 24; Passage

through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29July1991,

I.C.J. Reports 1991, p. 16, para. 16; Application of the Convention on the Prevention and

Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Provisional

Measures, Order of 8April1993, I.C.J. Reports 1993, p. 19, paras. 34-35; Application of the

Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and

Herzegovina v. Yugoslavia), Provisional Measures, Order of 13September1993, I.C.J. Reports

1993, p. 342, paras. 35-36; Land and Maritime Boundary between Cameroon and Nigeria

(Cameroon v. Nigeria), Provisional Measures, Order of 15March1996, I.C.J. Reports 1996(I) ,

19 pp. 21-22, para. 35; Vienna Convention on Consular Relations (Paraguay v. United States of

America), Provisional Measures, Order of 9 April 1998, I.C.J. Reports 1998 , p. 257, paras. 35-36;

LaGrand (Germany v. United States of America), Provisi onal Measures, Order of 3March1999,

I.C.J. Reports 1999, pp. 14-15, paras. 22-23; Armed Activities on the Territory of the Congo

(Democratic Republic of the Congo v. Uganda), Provisional Measures, Order of 1 July 2000, I.C.J.

Reports 2000, p. 127, paras. 39-40; Arrest Warrant of 11 April 2000 (Democratic Republic of the

Congo v. Belgium), Provisional Measures, Order of 8 December 2000, I.C.J. Reports 2000, p. 201,

para. 69; Armed Activities on the Territory of the Congo (New Application:2002) (Democratic

Republic of the Congo v. Rwanda), Provisional Measures, Order of 10July2002, I.C.J. Reports

2002, p. 241, para. 58; Certain Criminal Proceedings in France (Republic of the Congo v.

France), Provisional Measures, Order of 17 June 2003, I.C.J. Reports 2003, pp. 107-108,

paras. 22-29; Avena and Other Mexican Nationals (Mexico v. United States of America),

Provisional Measures, Order of 5 February 2003, I.C.J. Reports 2003, p. 89, para. 49; Pulp Mills

on the RiverUruguay (Argentina v. Uruguay),Provisional Measures, Order of 13July2006 ,

paras. 61-62). - 13 -

Le PRESIDENT : M. Kohen, comme vous le savez, ces textes n’ont été remis aux interprètes

qu’il y a quelques instants seulement. Pourriez- vous les aider et aider la Cour en parlant

lentement ?

M. KOHEN : Oui, bien sûr.

Le PRESIDENT : Je vous remercie.

Mr. KOHEN :

4. Your Order of 8April1993 in the case concerning Application of the Convention on the

Prevention and Punishment of the Crime of Genocide is especially relevant to the present request

by Uruguay. It states that,

“with respect to the measures requested both by Bosnia-Herzegovina and by
Yugoslavia, the Court is... confined to the consideration of such rights under the

Genocide Convention as might form the subject -matter of a judgment of the Court in
the exercise of its jurisdiction under Article IX of that Convention” (Application of the
20 Convention on the Prevention and Punishment of the Crime of Genocide, Provisional
Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 20, para. 38).

5. We find ourselves here in an identical situation. The Court is confined to the

consideration of such rights under the Statute of the River Uruguay as may form the subject-matter

of a judgment in the exercise of its jurisdiction under Article 60 of that Statute.

6. Despite the legal acrobatics performed th is morning by our opponents in a desperate

attempt to link their request to the 1975 Statute, th eir efforts have clearly not been successful. It

could not be otherwise. Their request has nothi ng to do with the Statute of the River Uruguay nor,

a fortiori, with the Argentine Application.

7. I intend to address the question in three stages. Firstly, I shall determine what are the

actual alleged “rights” that Uruguay is seeking to “protect”, again allegedly, with its request for the

indication of provisional measures. Secondly, I shall examine the “garb” in which Uruguay is

attempting to disguise these alleged rights, using garments too big for the occasion which it

sought ⎯ unsuccessfully ⎯ in the cloakroom of the Statute of the River Uruguay. Thirdly, I shall

compare the provisional measures requested by the Respondent with the Statute of the River

Uruguay, in order to demonstrate that they can in no way be aimed at protecting rights stemming

from the only instrument that affords you a basis of jurisdiction in the present case. - 14 -

A. The alleged rights that Uruguay is seeking to protect are unrelated to the Statute of the

River Uruguay

8. A cursory perusal of the Uruguayan request for the indication of provisional measures

suffices to show the absence of any clearly estab lished link between the Statute of the River

Uruguay and this request.

9. According to Uruguay, the alleged blockade of the bridges ⎯ which incidentally, as the

Agent for Argentina said, are not blocked ⎯ is a wrongful Argentine act depriving Uruguay of

hundreds of millions of dollars. In its request, Uruguay cited the decision of a tribunal set up in the

framework of Mercosur, which referred to freedom of transport and commerce under the Treaty of

Asunción establishing Mercosur. That Award in f act stands out as the central feature of their

argument, coupled with consider ations totally alien to the Pulp Mills case, such as the question

whether or not Argentina can take countermeasures.

21 10. The Uruguayan protest notes are clear as to the presumed rights at issue. That of

11 October 2006 presents them thus:

“It should be noted that these road blockades constitute a violation of the
principle of free circulation established in the Treaty of Asunción. This concept was
clearly taken up in the Award of the Ad Hoc Mercosur Arbitral Tribunal of
6 September 2006. 14”

Not a word on the Statute of the River Uruguay.

11. The second note repeats just about the same thing, except that it adds that

“the omission of the Argentine Government in taking necessary measures constitutes
an aggravation of the dispute today pending before the International Court of Justice,
in violation of paragraph 82 of the Order on provisional measures of 13 July past, and

the obligations imposed on all the litigants before the Court, and consequently
considers that its rights are being threat ened by the omission of Argentina of
compliance with its international obligations” 15

12. Despite this initial attempt to bring the matte r into closer relation with this case, there is

still no word on the Statute of the River Uruguay. There is a reference to the alleged aggravation of

the dispute ⎯ but of what dispute? This is followed by the simple remark that the rights of

Uruguay ⎯ but which rights? ⎯ are threatened by the Argentine omission, concluding with the

14
Case concerning Pulp Mills on the River Uruguay (Argentinav. Uruguay), Request for the indication of
provisional measures submitted by Uruguay, 30 November 2006, Ann. 3.
15
Note of Uruguay to Argentina of 30 October 2006, ibid., Ann. 4. - 15 -

alleged Argentine violation of its obligations as party to the dispute. As we shall see, this is not the

case.

13. In substance, Madam President, Uruguay, whatever it says, invokes the defence of

alleged rights which are in no way at issue in th is dispute and cannot be. Neither freedom of

transport nor freedom of commerce is a right govern ed by the Statute of the River Uruguay. It is

also clear that the alleged effects of the Arge ntine roadblocks on tourism and business earnings ⎯

which, it may be added, Uruguay has by no means proved ⎯ do not remotely concern the Statute

of the River Uruguay.

14. Furthermore, as the Agent has just expl ained, this tourist flow is continuing and

thousands of Argentines are travelling or preparing to travel right now to the sister country to spend

their holidays there in what once more promises to be a successful tourist season. However that

may be, all that has nothing to do with the Statute of the River Uruguay. Let us put it simply: that

22 treaty, concluded between Argentina and Uruguay in 1975 and which constitutes the only basis of

your jurisdiction, in no way governs the tourist flow between the two countries.

15. On one point, my friend LuigiCondorelli w as certainly right in his oral statement of

8 June last:

“thus, Article60 of the Statute does not give the Court jurisdiction to settle any
international dispute whatever between Uruguay and Argentina! As the wording

indicates with the utmost clarity, the only disputes covered ratione materiae by the
compromissory clause concerned are those relating “to the interpretation or
application . . . of the Statute”. It follows that any dispute relating to claims not based

on the Statute falls outside the scope 16 the compromissory clause, and hence the
Court lacks jurisdiction to rule on it.”

16. My colleague AlanBoyle this morning c ited your Order regarding the request for the

indication of provisional measures submitted by Guinea-Bissau in the Arbitral Award of

31 July 1989 case. It is true that Uruguay is not in the same procedural situation as that of

Guinea-Bissau. But my colleague has forgotten something: Uruguay is in a worse procedural

situation than that of Guinea-Bissau in that case. For Guinea-Bissau was claiming that the same

conflicts of interest existed in the main disput e submitted to the Court (namely the inexistence or

nullity of the Arbitral Award of 31July1989) and in a subsidiary dispute linked to the first (the

16
CR 2006/47, 8 June 2006, pp. 33-34, para. 6. - 16 -

control, exploration a nd exploitation of maritime areas delimited in the arbitral award) ( Arbitral

Award of 31July1989 (Guinea-Bissau v. Senegal), Judgment, I.C.J. Reports 1990 , pp.69-70,

para. 25). The dispute that Uruguay is seeking surre ptitiously to bring before you cannot even be

presented as a subsidiary dispute relating to the Uruguayan authorizations for construction of the

pulp mills. Their content is different, the rights s upposedly involved are different, and the dispute

settlement means provided for by the parties in the framework of their bilateral relations are

different. Uruguay knows this perfectly well since it has already chosen another course of action,

that of jurisdictional settlement within Mercosur.

17. On 6September last a Mercosur arbitral tribunal ruled on the question 17. And barely

three days ago Uruguay sought ⎯ unsuccessfully ⎯ within the Mercosur Common Market

23 Council exactly the same thing that it is pursuing by means of this procedural incident: to obtain
18
what in the view of Uruguay would be the implementation of that arbitral award . The referral of

the matter by Uruguay to a Mercosur arbitral tribun al on the basis of the Olivos Protocol to the

treaty establishing Mercosur (Treaty of Asunción) of the road blockade dispute is very clear

evidence both of the Court’s lack of jurisdiction a nd of the fact that Uruguay is convinced of that

lack of jurisdiction. For one thing, it is assuredly the same dispute as that which Uruguay is today

improperly trying to bring before you through its request for the indication of provisional measures,

and a dispute that Uruguay had acknowledged then to be unrelated to that referred to the Court by

Argentina ⎯ my colleague AlanPellet will be coming back to this. For another thing, under the

terms of the second sub-paragraph of Article 1, paragraph 2, of the Olivos Protocol itself, “[o]nce a

dispute settlement procedure pursuant to the pr eceding paragraph has begun, none of the parties

may request the use of the mechanisms established in the other fora . . .” 1. This means that it is not

permissible for the parties to embark on this path and then withdraw. Furthermore, in accordance

with Article 26, paragraph 1, of the same protocol , “[a]ll awards of the Ad Hoc Arbitration Courts

17
Case concerning Pulp Mills on the River Uruguay (Argentinv. Uruguay) , Request for the indication of
provisional measures submitted by Uruguay, 30 November 2006, Ann. 2
18
MERCOSUR/CMC/ACT No. °2/06 ⎯ XXXI Ordinary Meeting of the C ouncil of the Common Market ⎯
15 December 2006, doc. No. 10 submitted by Argentina on 18 December 2006.
1UNTS, Vol. 2251, A-37341, p. 288. - 17 -

shall be binding on the States involved in the dispute as from the time of their notification and they

20
shall be in the nature of res judicata” in the absence of a motion for review.

18. I well know, Madam President, that, in connec tion with the dispute of which it is indeed

properly seised, the Court is not required to apply the Treaty of Asunción and the Olivos Protocol

since the 1975Statute is the only relevant legislati on. With regard to the dispute before it, in

common with the award of the Ad Hoc Tribunal of 6September2006 itself, they are, as it were,

“simple facts”. But they are highly revealing facts; they show:

⎯ first, that Uruguay took the view that the Mercosur peaceful settlement mechanisms constituted

the natural framework for resolving the dispute between the Parties regarding the roadblocks;

⎯ second, that the Tribunal recognized and exercised its jurisdiction to deal with the dispute; and

24 ⎯ third, that its decision is final and binding and constitutes res judicata with respect to the

Parties.

19. Argentina and Uruguay accepted those ob ligations. Uruguay had recourse to that

procedure. It cannot today back down. Whether one describes this as acquiescence, estoppel,

acceptance or anything else, a State cannot blow hot and cold. As explained by Judge Alfaro in a

well-known passage of his separate opinion attached to the second Judgment of the Court in the

Temple of Preah Vihear case,

“the party which by its recognition, its representation, its declaration, its conduct or its
silence has maintained an attitude manifestly contrary to the right it is claiming before
an international tribunal is precluded from claiming that right (venire contra factum
proprium non valet) ” ( Temple of Preah Vihear (Cambodia v. Thailand), Merits,

Judgment, I.C.J. Reports 1962, p. 40).

20. This is a general principle of la w that the Court is obviously entitled to ⎯ and must ⎯

apply to the present dispute as to any other.

21. The upshot of this is quite clear. The free movement of persons and goods, tourist flows

and other economic considerations advanced by Uruguay to justify its request are not relevant. To

use your form of words from the Arbitral Award of 31 July 1989 case, “the alleged rights sought to

be made the subject of provisional measures are not the subject of the proceedings before the Court

on the merits of the case; and... any such measures could not be subsumed by the Court’s

20
Ibid., p. 295. - 18 -

judgment on the merits” ( Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Provisional

Measures, Order of 2 March 1990, I.C.J. Reports 1990, p. 70, para. 26).

22. As you also held in your Order of 13 September 1993 in the Bosnia and Herzegovina v.

Yugoslavia (Serbia and Montenegro) case regarding provisional measures, “the Court cannot make

definitive findings of fact or of imputability, and the right of each Party to dispute the facts alleged

against it, to challenge the attribution to it of responsibility for those facts, and to submit arguments

in respect of the merits, must remain unaffected by the Court’s decision” ( Application of the

Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and

Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of

13 September 1993, I.C.J. Reports 1993, p. 347, para. 48).

25 23. Madam President, Members of the Court, the most striking evidence of your lack of

jurisdiction to order the provisional measures requested by Uruguay is that any decision ordering

provisional measures on the basis of the facts alleged against Argentina would not leave unaffected

its right to dispute them, its right to reject ther legal characterization, its right to dispute their

imputability, and its right to dispute responsibility. Indeed, quite simply, all these questions

relating to the roadblocks cannot be and will not on any account be discussed in the present case

since they are completely unrelated to the St atute of the River Uruguay. The purpose of the

Uruguayan request is nothing more or less than to obtain by means of incidental proceedings a

judgment of the Court on facts which are totally unrelated to the 1975Statute. My friend

AlanPellet will develop this question in greater detail, from the angle of the absence of any link

between the measures requested by Uruguay and the subject-matter of the dispute as defined by the

application instituting proceedings.

24. Our Uruguayan friends are of course aware of the intrinsic weakness of their request and

have thus sought to dress up ⎯ disguise, I would say ⎯ these rights totally unrelated to the Statute

of the River Uruguay with any rights derived from that Statute. We shall see that this foolhardy

exercise has not borne fruit and could not do so. - 19 -

B. The clothing of the ostensible rights at issue with rights possibly derived from the

1975 Statute

25. What remains of the massive propaganda campaign deployed by Uruguay this morning

that might be remotely pertinent to an adversar ial discussion of provisional measures? Not a great

deal. Only two points might deceptively appear to have a connection with the Statute of the River

Uruguay: (1) Uruguay’s right to construct the Orion plant and (2) that it is the Court that rules on

the dispute between Uruguay and Argentina. It is manifestly clear that the facts presented by

Uruguay have no bearing on either point. As we have seen, Uruguay’s own previous conduct

attests to this: in connection with the same fact s now being invoked in support of its request for

provisional measures, Uruguay brought proceedings be fore a Mercosur Arbitral Tribunal, and not

before the Court, alleging an ostensible Ar gentine violation of Uruguayan rights under the

Asunción Treaty and not under the Statute of the River Uruguay. Uruguay had never before

claimed that the acts attributed to the social m ovement in the Argentine province of Entre Ríos

26 constituted a violation of its rights under the Statut e of the River Uruguay. A brief examination of

these two Uruguayan disguises will suffice to demonstrate how poorly they conceal the real

subjects behind them.

(a) The right to construct the “Orion” plant

26. The ostensible right at issue in this request is, according to Uruguay, “the right pending a

final decision of the Court, to carry on building th e Botnia plant without Argentina’s prior consent,

in conformity with the 1975 Statute of the River Uruguay and the Order made on July 13th” 21.

27. Members of the Court, you will recall Ur uguay’s enthusiastic presentation of its idea of

the fumus boni juris requirement during the first round of pleadings on 8 June 2006:

“the Court cannot grant provisional measures to preserve rights in cases where the
alleged rights relied on would already at fi rst sight appear to be based on clearly

inadequate legal grounds, or if the allegations relating to the violation of the rights
concerned are based on arguments whose incons istency can easily be verified; in that
case it is apparent that the principal claim prima facie has no serious prospect of
22
success” .

21
Oral argument of Alan Boyle of 18 December 2006. See also case concerning Pulp Mills on the River Uruguay
(Argentina v. Uruguay), Request for the indication of provisional measures submitted by Uruguay, 30 November 2006,
para. 3.
2CR 2006/47, p. 32, para. 2 (Condorelli). - 20 -

28. We would have liked our friends on the other side of the Bar to have shown some

consistency regarding this requirement and to have delved a little deeper in their analysis. We have

been waiting all morning in vain for some mentio n of the specific articles of the Statute of the

River Uruguay which, according to Uruguay, are at issue in this request for provisional measures.

We have heard nothing. No concrete analysis whatsoever of the rights of the Parties under the

1975 Statute.

29. If a request for provisional measures was being seriously contemplated, one would have

expected our opponents to address the indispensable task of linking the request for provisional

measures to Uruguay’s rights under the 1975 Statute that are supposed to be threatened by alleged

Argentine conduct. Let us attempt to perform the exercise that Uruguay neglected to perform,

since it contented itself with a vague reference to “the right to continue with the construction of the

Botnia plant”.

27 30. The provisions concerning the construction of works are contained in ChapterII of the

Statute (entitled “Navigation and Works”). Are the acts that Uruguay attributes to Argentina likely

to infringe the right of the Party planning to carry out works “which are liable to affect navigation,

the régime of the river or the quality of its wate rs” to notify CARU under the terms of Article7?

Or its right under the same article to have CA RU determine whether the plan might cause

significant damage to the other Party? Or again the right of Uruguay under Article9 “[i]f the

notified Party raises no objections or does not respond within the period established . . . to carry out

or authorize the work planned”?

31. I take it that Uruguay will not claim that it has been unable to exercise its rights under

ChapterII of the Statute because the inhabitant s of EntreRíos province (including Uruguayan

nationals) blocked Argentine roads. Clearly, there is no danger of the acts to which Uruguay refers

causing irreparable prejudice to its continuing ability to exercise its rights under the Chapter of the

Statute entitled “Navigation and Works”. Let us recall the evidence: not only is Argentina not

jeopardizing the exercise of those rights; on the contrary, it would actually like Uruguay to exercise

them!

32. We know that the Parties are divided on how Article9 of the 1975Statute should be

interpreted. In its Request of 30November 2006, Uruguay’s interpretation of your Order of - 21 -

13July2006 is somewhat odd, to say the least. It argues that “[t]he order left Uruguay free to

oversee the construction and operation of the plants in a manner consistent with its obligations

under the Estatuto pending the Court’s adjudication on the merits” 2. This morning my colleague

AlanBoyle also insisted on this interpretation, claiming that the Order of 13July 2006 left

Uruguay free to continue authorizing the construction of the Orion plant 24. Clearly, the Court did

not create any new right for Uruguay in its Order. The Court actually held that at the provisional

measures stage it did not have the consider the issue of whether Uruguay could implement its

28 project in the absence of agreement between th e Parties or, failing such agreement, pending

settlement of the dispute by the Court. The C ourt was not convinced that any violation of the

1975Statute would not be capable of being remedied at the merits stage ( Pulp Mills on the River

Uruguay (Argentina v. Uruguay) Provisional Measures, Order of 13 July 2006, para. 71).

33. It is true that Uruguay claims that it has the right to build the Orion plant without

following the Chapter II procedure and that it is for the Court to settle this issue on the merits. Yet

regardless of how one interprets Article9, the issue does not arise in connection with social

movements, since ⎯ to put it simply ⎯ such movements do not impede the continued construction

of the Orion plant. Thus, the roadblocks, even supposing that they are attributable to Argentina ⎯

which we dispute, entail no serous risk of irrepa rable prejudice to Uruguay’s ostensible right to

build the plant, even where the procedure envisaged under the Statute of the River Uruguay has not

been completed. Clearly also, Argentina has no practical steps in mind aimed at preventing

Uruguay from continuing the construction of the Orion plant, contrary to what my colleagues

Condorelli and Boyle intimated this morning. Whatever one might think of the Argentine

roadblocks, they neither pose a threat nor do they in any way prevent Uruguay from pursuing

whatever policy it sees fit in any area, including on the matter that is the subject of this dispute.

34. This being the case, it is totally unrealistic to seek to draw parallels between the situation

described in Uruguay’s request and the case concerning United States Diplomatic and Consular

Staff in Tehran. It is obvious that the demonstrators ⎯ whether Argentine or Uruguayan

23
Case concerning Pulp Mills on the River Uruguay (Argentinav. Uruguay), Request for the indication of
provisional measures submitted by Uruguay, 30 November 2006, para. 5.
24
CR 2006/54, p. 20, para. 7. - 22 -

nationals ⎯ erecting the blockades on Argentine roads are neither occupying the worksite nor

blocking it!

35. There is no basis for the argument that if the Court failed to order provisional measures,

Uruguay’s right to build the Botnia plant would be illusory or risk suffering irreparable prejudice.

This argument is used as a screen to conceal the fact that the Court manifestly lacks jurisdiction to

hear the dispute between Argentina and Uruguay regarding certain actions undertaken by the social

movement in Entre Ríos province.

29 36. Botnia has repeatedly announced that its plant will be ready by the last quarter of 2007.

As I speak, 70 per cent of the Orion plant has been constructed 2. Nobody has suggested that there

is any risk of the project being abandoned. Qu ite the contrary. The work is proceeding at an

accelerated pace and statements abound to the effect that the plant will be completed on its current

site. The social movement in Entre Ríos provin ce in no way interferes with the ostensible right

invoked by Uruguay. In the absence of an intern al social movement, the staff at Botnia are

continuing to go to work each day. The only wo rk stoppage at Orian was due to a three-week

26
strike by employees in September . As I speak, materials continue to be transported as usual by

road and river. Even the port of Botnia, whose commissioning was unlawfully authorized a few

weeks after your Order of 13 July 2006, is worki ng at full capacity and no measure attributable to

Argentina or anyone else has been taken to preven t it from doing so. Not one word was uttered to

the contrary during the three hours used by our Uruguayan friends this morning. Clearly, the

roadblocks referred to by Uruguay do not constitu te and cannot constitute an impediment to the

continued construction of Orion. By the same token, all the rest of Uruguay’s arguments fall by the

wayside.

37. Let us try nevertheless to sum up the pos ition of our opponents. Their argument may be

broken down into eight steps. While an ei ght-step argument may suit the Argentines’ and

Uruguayans’ shared passion for the tango, it is an unduly long-drawn-out movement for anyone

2“Botnia has already completed per cent of the works”, El Espectador , 30 November 2006.
http://www.espectador.com.uy/nota.php?idNota=84329. Document No. 3 filed by Argentina on 18 November 2006.

2Press release by BOTNA, “Botnia forced to su spend works at Fray Bentos”, 22September2006,
http:www.metsabotnia.com/es/default.asp?path=284;292;439;440;1093;1368. Document No.6 filed by Argentina on
18 December 2006. - 23 -

seeking to establish some kind of connection be tween the points our opponents are making today

and the Statute of the River Uruguay.

38. In essence their reasoning amounts to a claim that: (1) Argentine citizens are blocking a

road; (2)this road leads to a bridge acro ss the River Uruguay; (3)sometimes, but not

continuously, other Argentine citizens block anothe r road that leads to another bridge; (4)the

Argentine government is doing nothing to prevent th em; (5) as a consequence of this, the flow of

Argentine tourists to Uruguay is reduced; (6)l ess Argentine tourism in Uruguay has unfortunate

30 consequences for the country’s economy; (7)th ese consequences would be so damaging to the

Uruguayan economy that the Uruguayan Government w ould be compelled to order Botnia to stop

building the Orion plant and to abandon its proj ect; (8)consequently, Argentina is violating

Uruguay’s right to build the Orion plant pursuant to the Statute of the River Uruguay and

Uruguay’s right to have the Court rule on the dis pute over the pulp mills on the basis of Article 60

of the 1975 Statute.

39. I leave aside whether the facts are tr ue and whether these Uruguayan speculations are

relevant, which Argentina disputes. Even assuming that all the Uruguayan allegations were true,

for which Uruguay has adduced no evidence, the se facts and speculations provide no basis

whatever for the assertion that there is a direct legal link between the facts alleged and the rights of

Uruguay derived from the Statute.

40. A comparison with the cases concerning Fisheries Jurisdiction (United Kingdom v.

Iceland) and (Federal Republic of Germany v. Iceland) may be useful. In those cases the

Applicants took the view that the extension of I celand’s fisheries jurisdiction was not valid. In

their requests for provisional measures they were seeking to protect the right of their vessels to

continue fishing in the 50-nautical-mile area declar ed by the Respondent. In the Court’s view, this

right was one element in the subject-matter of the dispute submitted to the Court, because the

United Kingdom and Germany were asking the Court to declare that the measures excluding

foreign fishing vessels envisaged by Iceland could not be invoked against fishing vessels registered

in the United Kingdom or in Germany (Fisheries Jurisdiction (United Kingdom v. Iceland), Interim

Protection, Order of 17August1972, I.C.J. Reports 1972 , p.15, paras.13-14; Fisheries

Jurisdiction (Federal Republic of Germany v. Iceland), Interim Protection, Order of - 24 -

17August1972, I.C.J. Reports 1972 , p.33, paras.13-14). Uruguay would be happy to be in the

position of those two States. But it is far from bei ng in that position. Iceland was actually taking

steps to prevent British and German vessels from fi shing in waters within 50nauticalmiles.

Argentina is doing nothing to prevent the Orion works from continuing normally ⎯ even if this is

completely illegal.

31 41. After all, it was Uruguay that stated with pe rfect clarity in its memorial to the Mercosur

ad hoc tribunal that there was no relationship between the road blockades in Argentine territory and

the construction of the plants which form the subj ect-matter of the dispute before the Court. I

quote:

“In the first place, the construction of the above-mentioned plants and the
possible environmental considerations related to them have absolutely nothing to do

with the dispute [brought before the ad hoc arbi27al tribunal]. They cannot form part
of the facts or the legal basis of the dispute.” [Translation by the Registry]

42. The converse, Madam President, is equa lly true: the road blockades and the free

movement of traffic have absolutely nothing to do with the dispute brought before this Court.

(b) The right to have the dispute resolved by the Court (Art. 60)

43. Uruguay, knowing that there was no substan tive rule in the River Statute supporting its

request for provisional measures, finally succeeded only in specifically invoking a single article of

the Statute, Article 60, which contains the compromissory clause. According to the Respondent:

“Uruguay has a right to have this dispute resolved by the Court pursuant to
Article60, rather than by Argentina’s unilate ral acts of an extrajudicial and coercive
nature, which are intended to force Uruguay to abandon its right under the Estatuto to
28
a judicial resolution of its claims and defences.”

44. Lacking a firm basis to support their argument, our opponents could only, this morning,

resort to accusations as serious as they were unfounded, claiming that Argentina was undermining

the proper administration of justice, preventing the Court from giving judgment on the merits and

depriving Uruguay of its right to obtain a decision. Nothing is further from the truth.

27
First written submission by Uruguay to the ad hoc arbitral tribunal, para. 159. Document No. 13 submitted by
Argentina on 18 December 2006.
2Case concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay) , Request for the indication of
provisional measures submitted by Uruguay, 30 November 2006, para. 25. - 25 -

45. Argentina is patiently and respectfully continuing with the present proceedings before

your distinguished Court. It is doing so although it has to face fresh violations by Uruguay of its

obligations under the Statute of the River Uruguay, some weeks after your Order of 13 July 2006:

for example, the authorization given to Botnia on 24August2006 to bring a port on the River

Uruguay into service, or the authorization of 13September2006 for the same company to extract

60millionlitres of water from the river, in both cases without following the procedure in

32
Articles 7 et seq. of the Statute of the River Uruguay. Argentina does not intend to discuss these

issues today. It is keeping to the procedural timetab le set by the Court, and will raise the matter in

its Memorial, which it is to file in a few days. Nothing in its conduct infringes Uruguay’s

procedural rights.

46. Let us now turn to Article60 of the 1975 Statute, the first paragraph of which reads:

“Any dispute concerning the interpretation or application of the Treaty and the Statute which

cannot be settled by direct negotiations may be subm itted by either Party to the International Court

of Justice.”

47. Uruguay invokes the Article not only as the ba sis of the Court’s prima facie jurisdiction,

but also as the source of the only specific right that it considers to be at issue in its request for

provisional measures: the right of Uruguay to have its dispute with Argentina over the pulp mills

settled by the Court.

48. Once again, nothing and no one is endangering Uruguay’s rights to continue the present

proceedings, to deploy all its grounds of defence and to obtain a decision of this Court with binding

force.

49. Uruguay’s argument to justify its re quest for provisional measures was presented as

follows:

“The Argentine blockades are expressly intended to be so painful to Uruguay
that it is forced to terminate the Botnia project in advance of the Court’s ruling.

Accordingly, they indisputably threaten gr ave and irreparable injury to t29 right to
build and operate the plant that Uruguay seeks to defend in this case.”

29
Case concerning Pulp Mills on the River Uruguay (Argentinav. Uruguay) , Request for the indication of
provisional measures submitted by Uruguay, 30 November 2006, para. 25. - 26 -

50. However, the constant repetition of this circular argument does not make it a right. No

one in the RíodelaPlata region would believe wh at Uruguay alleged this morning: “practically

total blockade”, “stifling or strangling the Urugua yan economy”, etc. They have not adduced one

iota of evidence, and for good reason. All this is simply not credible. Judging by what our

opponents write and say, one would picture a real blockade, a rampant economic crisis of such

magnitude as to force the State to renounce its ri ght in order to escape from it. Madam President,

Members of the Court, this quite simply cannot be taken seriously. The Agent has already

33 demonstrated this, and as far as I know, Uruguay is not cut off from the world, or even from

Argentina.

51. It is obvious, Madam President, that we are al so not faced with a situation like the one in

the Burkina Faso/Republic of Mali and Cameroon/Nigeria disputes, in which the Court ordered

provisional measures in the context of an outbreak of armed conflict and where the Court held that

there was a danger of loss of evidence concerning the cases before it ( Frontier Dispute (Burkina

Faso/Republic of Mali), Provisional Measures, Order of 10January1986, I.C.J. Reports 1986 ,

p. 3; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria),

Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996 (I), p. 13).

52. There is something paradoxical about the fact that, today, Uruguay is relying on

Article 60 of the Statute as the sole basi s of both prima facie jurisdiction and its fumus boni juris.

It is Argentina, not Uruguay, that has sought a le gal settlement of the dispute, on the basis of the

relevant provisions of the 1975Statute. And when Argentina reminded Uruguay that the

conditions for seising the Court would be met if the parties could not reach a settlement of the

dispute within the GTAN framework, Uruguay quite simply claimed during the last days of 2005

that there was no dispute and that the ChapterXV procedure ⎯ that of Article60 ⎯ was not

30
open . It was also Argentina, not Uruguay, which ask ed the Court to set short time-limits for the

written proceedings, so that a decision based ex clusively on the law would finally settle this

dispute, which is embittering rela tions between the two countries. Argentina is the Party that is

scrupulously observing the Court’s exhortations in its Order of 13 July 2006.

30
Note from the Foreign Minister of Uruguay to the Ambassador of Argentina in Montevideo, 27 December 2005,
document No. 3 submitted by Argentina on 18 December 2006. - 27 -

53. By invoking Article60 of the River Statute and the rights and duties of the parties to

proceedings before this Court, Uruguay has act ually sought to bring the dispute between the

two countries concerning the road blockades before you, analysing it in every detail as if we were

already dealing with the merits of a case that is not before you at all.

34 C. The measures requested by Uruguay have no connection with the Statute of the

River Uruguay

54. Let us now examine the provisional measures requested by Uruguay in the light of the

Statute of the River Uruguay.

55. The first provisional measure requested by Uruguay has no relation to any right

prescribed by the Statute. There is no mention of the Statute in it, and one can understand why!

AlainPellet will show that for Uruguay this amount s to bringing before this Court exactly what

Uruguay had unsuccessfully requested from the Mercosur arbitral tribunal.

56. The second provisional measure requested by Uruguay leaves us puzzled, even after

hearing our opponents for three hours. The Respondent asks that “Argentina . . . shall abstain from

any measure that might aggravate, extend or make more difficult the settlement of this dispute” 31.

Which dispute? It is not clear whether Uruguay is referring to the dispute concerning the alleged

interruption of traffic between the twocountries or that relating to the pulp mills. If the first

hypothesis is correct, the question finds no support in the sole instrument that gives you jurisdiction

in this case, the Statute of the River Uruguay. My friend AlainPellet will refer to the second

hypothesis when he examines the Uruguayan requests relating to the dispute submitted by the

Argentine request.

57. The third measure requested by Uruguay is without foundation, even if it could fall

within the provisions of the 1975 Statute, because it refers exclusively to the “rights of Uruguay in

dispute before the Court”. To set out before yo u the reasons why such a request, so isolated and

abstract, does not meet the requirements of Article41 of the Statute of the Court would

nevertheless be an abuse of your patience.

31
Case concerning Pulp Mills on the River Uruguay (Argentinav. Uruguay) , Request for the indication of
provisional measures submitted by Uruguay, 30 November 2006, para. 28. - 28 -

D. The Court manifestly lacks jurisdiction to entertain the Uruguayan request

58. It is clear from these remarks that the Uruguayan requests do not fall within the scope of

the 1975 Statute, the sole instrument that gives you jurisdiction to entertain the case submitted by

Argentina.

35 59. The fact remains that even so there is something spectacular in what Uruguay has done:

the Respondent specifically invoked the rules in the Treaty of Asunción allegedly violated by

Argentina, the Memorandum of Understandi ng for the Free Movement of People between

Argentina and Uruguay, the Argentine Constitution, the Argentine Law on Transit, the Constitution

32
of EntreRíosProvince, the Penal Code of Argentina , the American Convention on Human

Rights 3, but with regard to the Statute of the River Uruguay it has been able to invoke only the

compromissory clause!

60. Applicant States requesting provisional me asures are often accused of seeking by this

means to obtain an early decision on the merits. Madam President, Members of the Court, in the

present case the Respondent is seeking something more . It is seeking to obtain a decision on the

merits on an issue that is neither within the ju risdiction of the Court nor part of the case that

Argentina has submitted to you, and which conseq uently you will not address in your judgment on

the merits.

61. In the LaGrand case you clearly stated that provisional measures were binding, with all

the consequences that ensue from this. We shoul d therefore ask ourselves what would happen, not

only if the Court does not order the provisional me asures requested, but also what would happen if

it does. If you ordered the provisional methods re quested by Uruguay you would quite simply be

imposing fresh obligations on Argentina ⎯ fresh obligations that in no sense derive from the legal

instrument that gives you jurisdiction to entertain this case.

62. The basic principle that governs your ju risdictional function is that of consent ( Status of

Eastern Carelia, Advisory Opinion, 1923, P.C.I.J., SeriesB, No.5 , p.27; Rights of Minorities in

Upper Silesia (Minority Schools), Judgment No. 12, 1928, P.C.I.J., Series A, No. 15 , p. 22; Corfu

Channel (United Kingdom v. Albania), Preliminary Objection, Judgment, 1948, I.C.J. Reports

32
Case concerning Pulp Mills on the River Uruguay (Argentinv. Uruguay) , Request for the indication of
provisional measures submitted by Uruguay, Observations of Uruguay, s.d., Exhibit 29, 30, 31, 32 and 33.
3CR 2006/54 (Boyle). - 29 -

1947-1948, p. 27; Reparation for Injuries Suffered in the Service of the United Nations, Advisory

36 Opinion, I.C.J. Reports 1949, p. 178; Interpretation of Peace Treaties with Bulgaria, Hungary and

Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950 , p.71; Anglo-Iranian Oil Co.

(United Kingdom v. Iran), Preliminary Objection, Judgment , I.C.J. Reports 1952 , p. 103;

Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom and United States

of America), Judgment, I.C.J. Reports 1954 , . 2; Continental Shelf (Libyan Arab

Jamahiriya/Malta), Application for Permission to Intervene, Judgment, I.C.J. Reports 1984 , p. 22,

para. 34; Applicability of ArticleVI, Section22, of the Convention on the Privileges and

Immunities of the United Nations, Advisory Opinion, I.C.J. Reports 1989 , p.189, para.31; Land,

Island and Maritime Frontier Dispute (ElSal vador/Honduras), Application to Intervene,

Judgment, I.C.J. Reports 1990 , p.133, para.94; Certain Phosphate Lands in Nauru (Nauru v.

Australia), Preliminary Objections , Judgment, I.C.J. Reports 1992 , p.260, para.53; East Timor

(Portugal v. Australia), Judgment, I.C.J. Reports 1995 , p. 101, para. 26; Fisheries Jurisdiction

(Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998 , p. 456, para. 55;

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory

Opinion, I.C.J. Reports 2004 , p.157, para.47). Here, what Ur uguay is seeking to obtain with its

request is neither more nor less than to impose conduct on a State in relation to issues that fall

within its reserved domain, for acts which the C ourt cannot assess as either lawful or unlawful and

which it will have no opportunity to consider, and which in any event do not affect rights derived

from the Statute of the River Uruguay.

63. What we see here is in fact a bid by Uruguay to subvert legal proceedings. Argentina will

certainly not go before a Mercosur tribunal to request provisional measures to protect the rights that

are at issue in the dispute concerning Pulp Mills on the River Uruguay . We regret that Uruguay

has come before your Court in a bid to safeguard alleged rights that have already been considered

in arbitral proceedings in Mercosur and which relate to a different case.

64. In their dissenting opinion appended to the Order by the Court on 5 July 1951 in the case

concerning the Anglo-Iranian Oil Co., Judges Winiarski and Badawi stated:

“In international law it is the consent of the parties which confers jurisdiction on
the Court; the Court has jurisdiction only in so far as that jurisdiction has been

accepted by the parties. The power given to the Court by Article41 is not - 30 -

unconditional; it is given for the purposes ofthe proceedings and is limited to those
proceedings. If there is no jurisdiction as to the merits, there can be no jurisdiction to

37 indicate interim measures of protection. Measures of this kind in international law are
exceptional in character to an even greater extent than they are in municipal law; they
may easily be considered a scarcely tolerable interference in the affairs of a sovereign
State. For this reason, too, the Cour t ought not to indicate interim measures of

protection unless its competence, in the event of this being challenged, appears to the
Court to be nevertheless reasonably probable.” ( Anglo-Iranian Oil Co. (United
Kingdom v. Iran), Interim Protection, Order of 5July1951, I.C.J. Reports 1951 ,
p. 97.)

And the two judges concluded their reasoning as fo llows: “if there exist weighty arguments in

favour of the challenged jurisdiction, the Court ma y indicate interim measures of protection; if

there exist serious doubts or weighty arguments ag ainst this jurisdiction such measures cannot be

indicated” (ibid.).

65. In the present request for provisionalmeasures, not only are there “serious doubts or

weighty arguments against the jurisdiction of the Court” ; its lack of jurisdiction is obvious. It is

inconceivable that, on the basis of the Statute of the River Uruguay, the Court should entertain the

dispute between Argentina and Uruguay concerning the action of social movements.

66. I have finished, Madam President, and I do not know whether you are going to give the

floor to my colleague Mr. Alain Pellet, or whether you prefer to take a break.

Le PRESIDENT : Je vous remercie, M. Kohen. L’audience sera brièvement suspendue.

L’audience est suspendue de 16 h 30 à 16 h 40.

Le PRESIDENT : Veuillez vous asseoir. M. Pellet, vous avez la parole.

Mr. PELLET: Thank you, Madam President. Madam President, Members of the Court,

III. THE PROVISIONAL MEASURES REQUESTED BY PARAGUAY ARE ENTIRELY

UNRELATED TO THE A PPLICATION BY A RGENTINA

1. As Professor Kohen has just demonstrat ed, Uruguay’s requests are entirely unrelated to

the 1975 Statute of the River Uruguay, Article 60 of which constitutes the sole basis for the Court’s

jurisdiction in respect of relations between Ar gentina and Uruguay, which are otherwise governed

by separate instruments and dispute settlement a rrangements. Moreover, its requests are also

devoid of any legal connection with the Application filed by the Argentine Republic with the Court - 31 -

38 on 4May2006, which also constitutes an absolute impediment to the requests being entertained.

That is the substance of my pleading.

2. I shall first show that the Court cannot rule on the request for the indication of provisional

measures filed by Uruguay because, legally speaking, the request bears no legal relationship to the

Application to which it is adjoined(I); sec ond, I propose to demonstrate that in the present

circumstances the provisional measures requested by Uruguay, which, as shown by

Ms Ruiz Cerruti, are by no means urgent, are likew ise clearly in no way liable to cause irreparable

prejudice to the rights that Uruguay may invoke in the context of the case before the Court (II.).

1. Lack of any legal relationship between the request for the indication of
provisional measures and the Application

3. Madam President, although it is not spelt out in Article 41 of the Statute, the Rules leave

no room for doubt: a request for the indication of provisional measures is an incidental proceeding

adjoined to the main proceedings introduced by the applicant. According to the Court’s own

definition, “[i]ncidental proceedings by definition must be those which are incidental to a case

which is already before the Court or Chamber. An incidental proceeding cannot be one which

transforms that case into a different case with different parties...” ( Land, Island and Maritime

Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990,

p. 134, para. 98). Provisional measures cannot, any more than intervention ⎯ the subject-matter of

the 1990 Chamber Judgment just cited ⎯ have been intended to be employed as a substitute for

contentious proceedings (ibid., p. 134, para. 99). As Ambassador Rosenne put it,

“[t]he implication of the term incidental is firstly that the court must have been duly
seized of a case, and secondly that there must be a connection between the subject

matter concerned and the mainlined proceedings . . . Provisional measures mu34 relate
directly to the rights claimed by the parties in the mainline proceedings.”

4. It follows that “a request for provisional meas ures must by its very nature relate to the

substance of the case since, as Article 41 expressly st ates, their object is to preserve the respective

39 rights of either party” ( United States Diplomatic and Consular Staff in Tehran (United States of

America v. Iran), Provisional Measures, Order of 15 December 1979, I.C.J. Reports 1979 , p.16,

34Shabtai Rosenne, The Law and Practice of the International Court 1920-2005 , Nijhoff Publishers,

Leiden/Boston, 2006, p.1381; see also Karin Oellers-Frahm, “Article41” in Andreas Zimmermann, ed. and ass. eds.,
The Statute of the International Court of Justiceentary, Oxford University Press, 2006, p. 939, para. 18. - 32 -

para. 28) . To cite the standard language used by th e Court when stating its concern that Parties

should refrain from transforming the substance of a case of which it is seised by a request for the

indication of provisional measures, “the power of the Court to indicate provisional measures under

Article41 of its Statute is intended to preserve the respective rights of the parties pending its

decision, and presupposes that irreparable prejudi ce shall not be caused to rights which are the

subject of a dispute in judicial proceedings...” ( Fisheries Jurisdiction (United Kingdom v.

Iceland; Federal Republic of Germany v. Iceland) Orders of 17 August 1972, I.C.J. Reports 1972,

p.16, para.21, and p.34, para.22; see also Aegean Sea Continental Shelf (Greece v. Turkey),

Provisional Measures, Order of 11September1976 , I.C.J. Reports 1976 , p.9, para.25; United

States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) Provisional

Measures, Order of 15 December 1979 , I.C.J. Reports 1979, p. 19, para. 36; Passage through the

Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991 , I.C.J. Reports

1991, p.16, para.16; Application of the Convention on the Prevention and Punishment of the

Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional

Measures, Order of 8April1992 , I.C.J. Reports 1993 , p. 19, para. 34; Land and Maritime

Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures, Order of

15 March 1996, I.C.J. Reports 1996 , pp. 21-22, para. 35; Vienna Convention on Consular

Relations (Paraguay v. United States of America) , Provisional Measures, Order of 9April1998 ,

I.C.J. Reports 1998 , p.257, para.35; LaGrand (Germany v. United States of America) ,

Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999 , pp.14-15, para.22; Armed

Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),

Provisional Measures, Order of 1 July 2000, I.C.J. Reports 2000, p. 127, para. 39; Arrest Warrant

of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Provisional Measures, Order of

8 December 2000, I.C.J. Reports 2000 , p. 201, para. 69; Avena and other Mexican Nationals

40 (Mexico v. United States of America) , Provisional Measures, Order of 5 February 2003 , I.C.J.

Reports 2003 , p.89, para.49, or Certain Criminal Proceedings in France (Republic of the

Congo v. France), Provisional Measures , Order of 17June2003 , I.C.J. Reports 2003 , p.107.

35
See also the separate opinion of Judge Be nnouna appended to the Order of 13JuPulp Mills on the
River Uruguay (Argentina v. Uruguay), para. 1. - 33 -

para.22; and, for similar language, see: Legal Status of Eastern Greenland , Orders of 2 and

3 August 1932, P.C.I.J. Series A/B No. 48 , p.285, or Polish Agrarian Reform and the German

Minority, Order of 29July1933 , P.C.I.J. Series A/B No. 58 , p.177; and Ango-Iranian Oil Co.

(United Kingdom v. Iran), Provisional Measures, Order of 5 July 1951, I.C.J. Reports 1951, p. 93;

Interhandel (Switzerland v. United States of America) , Provisional Measures , Order of

24 October 1957, I.C.J. Reports 1957 , p.111, or Pulp Mills on the River Uruguay (Argentina v.

Uruguay), Provisional Measures, Order of 13 July 2006, para. 62) ⎯ meaning, of course, a dispute

in the mainline judicial proceedings.

5. As was so pertinently noted by Professor Condorelli at the hearing of 8 June this year ⎯

though it must have been in a previous existenc e: “The rights to be preserved by provisional

measures can only be those that are the subject of the principal claim” 36; “these are the only rights

[the source on this occasion being the Permanen t Court] which might enter into account” ( Legal

Status of the South-Eastern Territory of Greenl and, Orders of 2 and 3August1932, P.C.I.J.,

Series A/B, No. 48, p. 85). There must be a direct link ⎯ not just a factual link but a direct legal

link ⎯ between, on the one hand, the provisional measu res requested and, on the other, the claims

filed in the Application, which define the subject of the case ( Certain Phosphate Lands in Nauru

(Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992 , pp.266-267,

para. 69; see also Prince von Pless Administration, Order of 4 February 1933, P.C.I.J., Series A/B,

No. 52, p. 14). As was pointed out by the Permanent Court in the Polish Agrarian Reform case, the

sole intention must be to “protect the subject of the dispute and the actual object of the principal

claim, as submitted to the Court by th e Application instituting proceedings” ( Polish Agrarian

Reform and German Minority, Order of 29 July 1933, P.C.I.J., Series A/B, No. 58 , p. 178; see also

41 p.177). It is quite true, as ProfessorAlanBoyl e noted this morning, citing the most venerable

authorities, and you are unlikely, Madam President , to disagree, provisional measures are designed

to prevent irreparable damage from being caused to the Court’s judgment and the rights at issue for

the parties. There is certainly no risk of that occurring in the pre sent case. Of course, should the

Uruguayan Government decide by some divine favou r to halt construction of the Botnia plant and

36
CR 2006/47, p. 35, para. 10 : on the same vein CR 2006/46, 8 June 2006, pp. 60-61, para. 13 (Pellet). - 34 -

withdraw the authorization that is the subject of the dispute, that decision, whatever its motive,

would have an impact on your judgment. Though it would not necessarily bring the present dispute

to an end, since, despite what appears to be an extremely limited interpretation of Argentina’s

submissions on the part of Professor Boyle, it is not true that such a renunciation would eliminate

“the very subject-matter of the litigation in advance of the Court’s ruling on the merits”. It is not

true either that the judgment would be “an empty gesture because there will be no plant”. It should

be borne in mind that one ⎯ and not the least important ⎯ object of Argentina’s Application is to

preserve the arrangements for coordination and cooperation under the Statute of the River Uruguay.

At all events, it is absurd to talk about irrepa rable damage under those circumstances. Moreover,

the situation would be attributable to a sovere ign decision by the Uruguayan Government and not

to the partial blockade of roads which is the subject of its request to the Court.

6. With regard to the irreparable damage to its rights, its rights being those at issue in the

case that was referred to you, Members of the Court, by Argentina, Uruguay is well aware that it is

on very shaky ground here, even though this morn ing its representatives sought to circumvent the

difficulty. Broadly speaking, their ar gument may be described as a two-step ⎯ I am not a very

good dancer, Madam President, and a two-step tango is fine for my purposes:

⎯ first step: we are well aware that the road bl ockades raise issues that do not fall within the

jurisdiction of the Court in the present case: Professor Condorelli was particularly clear on this

point: “such breaches ⎯ though they undeniably exist ⎯ fall outside the jurisdiction of this

42 Court inasmuch as they are not covered by the Statute of the River Uruguay; it follows that the

37
arbitration clause in Article 60 of the Statute simply cannot be invoked in that regard” ;

⎯ second step: but as a Party to the dispute, Uruguay would be entitled to have the Court indicate

provisional measures.

The problem is that there is a break in con tinuity between the two constituent steps of the

reasoning of our Uruguayan friends and that the measures requested actually relate to the rights that

Uruguay is thus seeking to protect, the very rights which, as it has itself conceded, fall outside the

Court’s jurisdiction. Provisional measures are not “an end in themselves”; they relate and must

37
CR 2006/54, p. 30, para. 4 (Condorelli). - 35 -

relate, as I have said, to the rights that can be invoked by the States parties to the dispute before the

Court.

7. In paragraph28 of its request, Uruguay sets out “the specific measures requested” ⎯

presumably the “measures requested” within the meaning of Article 73, paragraph [2], of the Rules

of Court. It is in regard to those measures that the question of the relationship with the Application

arises, which, as I have shown, constitutes a sine qua non for the admissibility of a request for the

indication of provisional measures:

8. There are three Uruguayan requests:

“While awaiting the final judgment of the Court, Argentina

(i) shall take al1 reasonable and appropriate steps at its disposal to prevent or

end the interruption of transit between Uruguay and Argentina, including the
blockading of bridges and roads between the two States;

(ii) shall abstain from any measure that might aggravate, extend or make more

difficult the settlement of this dispute; and

(iii)shall abstain from any other measu re that might prejudice the rights of
Uruguay in dispute before the Court.” 38

9. Three preliminary remarks are called for on the last two measures (which in any case

amount to virtually the same thing):

1. the last is merely a “unilateralized” paraphr ase of the text of Article41 of the Statute and

cannot be set out in these general terms (“sh all abstain from any other measure that might

prejudice the rights of Uruguay”);

43 2. the second Uruguayan request calls for the same kind of comment (“shall abstain from any

measure that might aggravate, extend or make more difficult the settlement of this dispute”); at

first glance, it might seem as though the Court had ruled in favour of this point in advance,

since in its Order of 13 July 2006 it encourag ed the Parties “to refrain from any actions which

might render more difficult the resolution of the present dispute” (para. 82); but this is not in

fact the case inasmuch as Uruguay is seeking a C ourt ruling on a different dispute from that of

which you are seised, Members of the Court, a dispute regarding the blockading of roads;

nevertheless, and here is my third remark:

38
P. 17, para. 28. - 36 -

3. I note, Members of the Court, that in your wisdom you addressed those words of

encouragement to the Parties in the part of your decision setting out your reasoning, and not in

the operative part.

10. No doubt you did so because such a measu re, which is implicit in every case before the

Court, could not have been made the sole subject-matter of the operative part. In the last part of his

second pleading this morning, ProfessorBoyle referre d to the Court’s longstanding jurisprudence,

according to which “measures to prevent the aggravation or extension of the dispute... have

frequently been indicated by the Court. These measures were designed to be implemented.”

(LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001 , p.503,

para. 103). True enough. But the Court does not or der such measures “out of the blue” or “in the

abstract”. And the Court’s 1986Order in the Burkina Faso/Republic of Mali case, on which my

opponent and friend AlanBoyle dwelt at length and exclusively this morning, certainly does not

indicate otherwise: not only was there a clea r-cut link between the measures requested by the

two Parties and the dispute in question (see, in pa rticular, paragraph 16 of the Order), and not only

did the serious incidents involved comprise “a reso rt to force which is irreconcilable with the

principle of the peaceful settlement of international disputes”, but, in addition, seldom has an Order

indicating provisional measures included so many measures spelling out very clearly how the

Parties were to comport themselves in or der to avoid aggravating the dispute ( ibid., para. 32). It is

therefore certainly not true to say that “[a]n order can be made to prevent aggravation of the dispute

where the Court has found that there is no threat to . . . the rights in dispute”9.

44 11. But if this is the case, Madam President, there is no call for the application of double

standards, and Argentina is convinced that what you denied in July will not be granted to Uruguay

in December (or January?) ⎯ especially since, and I intend to revert to this, no right that Uruguay

could invoke before the Court in respect of the dispute before it has been infringed. In other words,

the only measure requested by the Uruguayan Party that raises a real question of admissibility is the

first one ⎯ since it is crystal clear that the other two ar e inadmissible: Is it conceivable, in legal

terms, that the Court would decide that Argentin a must prevent or end th e interruption of transit

39
CR 2006/54, p. 52, para. 21 (Boyle). - 37 -

between the two countries (which is in any case very limited and geographically confined), even if

it was capable of doing so (quod non)?

12. Obviously, Madam President, the answer to this question is: “no”. It is not legally

conceivable because such a requ est relates to rights, the existence of which Uruguay has not

established, which have in any case nothing to do with the object of the Application that Argentina

filed with the Court.

13. This object is set out very clearly in paragraph 2 of the Application:

“The dispute concerns the breach by Uruguay of obligations under the Statute of

the River Uruguay, a treaty signed by Argentina and Uruguay at Salto (Uruguay) on
26 February 1975 and having entered into force on 18 September 1976 (hereinafter the
“1975 Statute”), in respect of the authorization, construction and future
commissioning of two pulp mills on the River Uruguay.” 40

This is the basic object of the Argentine Appli cation. My friend MarceloKohen has just shown

that the provisional measures requested by Uruguay ⎯ or rather the first such measure, which, I

repeat, is the only one still relevant, is devoid of any link with the 1975 Statute. By the same token,

it is clear that “the rights... sought to be made the subject of provisional measures are not the

subject of the proceedings before the Court on the merits of the case” ( Arbitral Award of

31 July 1989 (Guinea-Bissau v. Senegal), Provisional Measures, Order of 2 March 1990, I.C.J.

Reports 1990, p. 70, para. 26).

14. A comparison of the only “real” provisional measure requested by Uruguay ⎯ again, the

45 first one ⎯ with the “decision requested” in the Appli cation confirms this. What is Argentina

asking for? It is requesting the Court to adjudge and declare, with all legal consequences:

“that Uruguay has breached the obligations incumbent upon it under the 1975 Statute
and the other rules of international law to which that instrument refers, including but

not limited to:

(a)the obligation to take all necessary measures for the optimum and rational
utilization of the River Uruguay;

(b) the obligation of prior notification to CARU and to Argentina;

(c) the obligation to comply with the pro cedures prescribed in ChapterII of the

1975 Statute;

(d) the obligation to take all necessary measu res to preserve the aquatic environment

and prevent pollution and the obligation to protect biodiversity and fisheries,

40
P. 2. - 38 -

including the obligation to prepare a full and objective environmental impact
study;

(e) the obligation to co-operate in the pr evention of pollution and the protection of
biodiversity and of fisheries.”

15. This, Madam President, is the decision re quested by Argentina. I took the liberty of

rereading it to you verbatim, although it is a specific, long and detailed request, because it becomes

clear in the process that this request has absolutely nothing to do with the prevention or termination

of partial interruptions of transit between the two countries by demonstrators who sporadically

blockade certain roads:

⎯ this request is unrelated to the optimum and rational utilization of the river;

⎯ this request is unrelated to notification of CARU and, more generally, to the procedural

obligations flowing from Chapter II of the 1975 Statute;

⎯ this request is furthermore unrelated to preserva tion of the aquatic environment and prevention

of pollution; and

⎯ it is also unrelated to the obligations incumbent on States parties to the Statute to co-operate in

those two areas.

Yet it is these rights and obligations, not trad e or tourist traffic between the twocountries,

that constitute “the subject of the proceedings before the Court on the merits of the case”.

16. Uruguay is clearly aware of this and is attempting to circumvent the problem — or rather

46 to deny its existence — by stating no less than ni ne times (admittedly in slightly different ways —

but still repeating the same argument nine times in its request) that:

“Argentina’s allowance of a harmfu l blockade against Uruguay— for the
express purpose of compelling it to accede to the very same demands that Argentina is
pursuing in this Court — will grievously a nd irreparably harm Uruguay’s rights under

the Estatuto to a judicial resolution of the Parties’ conflicting claims with regard to the
Botnia plan.” 41

17. I shall refrain, Madam President, fro m ironic commentary on the piquancy of the

situation: we have Uruguay complaining of the ri sk of being deprived of its right to have the

dispute settled by the Court, although it is cl early Uruguay which, by failing to seize CARU under

Article7 of the 1975Statute, has prevented the case from being settled, first through discussions

41
P.2, para.4; see also p.1, paras.23; p.3, para.6; p.4, para.7; p. 6, para.11; p.10, para.18; p.15,
para. 24; p. 16, para. 25. - 39 -

between the two countries and perhaps subsequent ly by the Court pursuant to Article12, a

mechanism that it has rendered unusable. I shall no t dwell either on the fact that the Uruguayan

Party attributes to Argentina conduct that is not its own but that of the population of the

Gualeguaychú region, which is desperately seeking to attract the attention of the two Governments

to a situation that it views as a dramatic threat to its future and its traditional way of life, as noted,

42
moreover, by the Arbitral Tribunal of Mercosur .

18. I must, however, draw attention to the utterly artificial method of reasoning ⎯ or

perhaps I should say self-persuasion?— adopted by Uruguay: even if we were to admit that the

objectives sought by the population of Gualeguayc hú and its region are the same as those pursued

by Argentina when it seised the Court; even if we were to assume that the Argentine Government

is capable of putting an end to this movement without taking the politically ill-advised risk of

prompting a sharp response from the population, it is certainly not enough to say that the goals

pursued by Argentina before the Court and tho se that the population on the ground claim to pursue

are the same in order to establish that the rights that the provisional measures are meant to protect

are the same as those constituting the requests set out in the Application.

47 19. Uruguay is not at all seeking to protect the rights at issue in the present dispute, as it has

43
also repeatedly asserted and as its representatives reiterated here this morning ⎯ another example

of the “Coué method”— of self-persuasion. Its objective is probably to u se the Court solely for

publicity purposes ⎯ which would be a distinct abuse of procedure; and it is in any case clear,

even in the light of the most charitable interpretation of its approach, that it is seeking in this way to

make the Court rule on a different dispute, concer ning the rights that it claims to derive not from

the 1975Statute but from the Asunción Treaty which “guarantee[s] the freedom of transport and

44
commerce between Mercosur countries” . This is apparent, for example, from the Note Verbale of

30 October last, in which Uruguay complains that

“the blockades... in addition to constitu ting a violation of the principle of free
circulation established in the Treaty of Asunción and other [unspecified] norms of

42Request by Uruguay for the indication of provisional measures, Ann. 2, p. 32, para. 157.
43
See ibid., and p. 1, para. 1, p. 6, para. 12 (vi) and p. 17, para. 26.
44P. 4, para. 8; see also p. 6, para. 12 (iii). - 40 -

international law, fail to comply45ith the Arbitral Award of the Mercosur Ad Hoc
Tribunal of 6 September 2006” .

The same language can be found in all of Uruguay’s relevant Notes Verbales . 46

20. What is particularly significant is that the provisional measure which Uruguay requests

does not concern either the rights and obligations which the Parties derive from the 1975 Statute or

the construction and commissioning of the Botnia plant. In fact, it only concerns — aside form the

Coué method ⎯ “the interruption of transit between Uruguay and Argentina”.

21. This is emphatically borne out by a co mparison between the measure with which I am

concerned and that in respect of which Uruguay seised the ad hoc Arbitral Tribunal of Mercosur.

Let us compare the two: Uruguay’s complaint to Mercosur:

“b) that the Argentine Republic, should the im pediments to free traffic be repeated,
must adopt the appropriate measures to prevent and/or stop such impediments and
guarantee the free traffic with Uruguay.”

48 And now the first provisional measure requested by Uruguay from the Court (I will reread it to

make everything absolutely clear):

“While awaiting the final judgment of the Court, Argentina

(i) shall take all reasonable and appropria te steps at its disposal to prevent or
end the interruption of transit between Uruguay and Argentina, including the
blockading of bridges and roads between the two States”.

22. So we have two requests, Madam President, which are really as alike as two peas in a

pod. Clearly, Uruguay is seeking to obtain from the Court, through provisional measures, what it

was basically unable to obtain through the arbitral proceedings that it brought in the framework of

Mercosur. Yet I would remind you ⎯ and my friend Marcelo Kohen has already mentioned it ⎯

that in the Mercosur framework our Uruguayan friends firmly stated that “the construction of the

plants [CMB and Botnia] and the possible envi ronmental considerati ons related to them are

47
completely alien to the dispute” referred to the Tribunal . It could scarcely be clearer: the

roadblocks and the case before the Court are “completely alien” to one another…

45
Uruguay’s request for the indication oprovisional measures, Ann.4, Note Verbale from the Ministry of
Foreign Affairs of Uruguay to the Argentine Embassy in Montevideo, 30 October 2006; see also Request, p. 8, para. 15.
4See ibid., Anns.3, 5-7; Notes Verbalesfrom the Ministry of Foreign Affairs of Uruguay to the Argentine

Embassy in Montevideo, 11 October 2006, 31 October 2006, 9 November 2006, and 20 November 2006.
4Document No. 4 submitted by Argentina, para. 157; emphasis added. - 41 -

2. The absence of irreparable prejudice to the rights that Uruguay can invoke in the
framework of the case before the Court

23. Moreover, Madam President, (and I turn to my second point) it is unreasonable to claim

that the acts referred to by Uruguay are capable of causing irreparable prejudice to the rights on

which the Court’s Judgment will be based or, to use the terms of the Uruguayan request, “to cause

48
irreparable prejudice to the rights of Uruguay that are at issue in this case...” . The rights of

Uruguay (and Argentina) that are at issue in th e present case are those (and are only those) which

the two States derive from the 1975Statute and whic h Argentina deems to have been violated by

Uruguay through its initial authorization of the c onstruction of the CMB and Orion mills and the

ongoing construction of the latter and of the related installations.

24. Uruguay contends that the continuation of the demonstrations has a negative impact on

the Uruguayan economy 49. That, if I may say so, is “beside the point”: the risk of such a prejudice

49 is unrelated to Uruguay’s supposed right to constr uct plants on the River Uruguay. The possible

impact of these sporadic protests on the Uruguayan economy and tourist industry, which

Ms Ruiz Cerutti has shown to be of very limited sc ope, has no factual or legal bearing on the River

Uruguay, the quality of its water or the construction of the Botnia pulp mill.

25. Uruguay has provided no evidence, either in its Request or this morning, that the

disputed construction works have been affected by the partial roadblocks in Argentina. On the

contrary, according to the information in Argen tina’s possession, the construction of the Botnia

plant and the related installations is proceedi ng “normally” (although I hesitate to use the word

“normal” to describe unlawful conduct...). Th e demonstrations have in no way prevented the

(again unilateral) commissioning of the port terminal and the granting of authorization for the

extraction of water from the river. The only interr uption of work on the construction site was due

to trade union activity by Botnia’s own employees at the end of September 2006 50.

26. Hence one cannot but be surprised by the f act that the President of the Eastern Republic

of Uruguay felt it necessary to order the army to take up positions around the plant construction

48
P. 6, para. 12 (vi); see also p. 5, para. 10.
49See inter alia the request for the indication of provisional meas ures, 30November2006, p.4, para.7; p.16,
para. 26.

50See Botnia’s press release “Botniobliged to halt construction work at Fray Bentos”, 22September2006,
document No. 6 submitted by Argentina. - 42 -

site . This is undoubtedly a “dramatization” of th e situation and obviously cannot seriously be a

response to the peaceful and sporadic blockage of certain roads in Argentina by Argentine

demonstrators. This move surprised many pe ople, and Botnia’s mana gement, in particular,

protested against such grandstanding. It was at the express request of Botnia’s management that

only yesterday President Vázquez ordered the withdr awal of the troops that he had dispatched at

52
the end of November — probably in the vain hope, Members of the Court, of convincing you of

the dramatic nature of a situation which, at least from Uruguay’s standpoint, is by no means

dramatic.

27. The economic pressure, which is allegedly due to the roadblocks on Argentine territory

and which, according to Uruguay, is being applie d with the sole aim of obliging it to halt or

50 suspend construction work, is also insufficien t to establish the legal link required for the

admissibility of a request for the indication of provisional measures under Article 41 of the Court’s

Statute.

28. First, Uruguay has maintained quite a ha ughty silence about the core question in this

context of whether any prejudice caused by the roadbl ocks to its economy, and in particular to its

tourist industry, is “irreparable”. The mere a llegation that “[t]he economic damage suffered by
53
Uruguay to date as a result of th e blockades has been enormous” fails to fulfil this condition,

which is repeatedly mentioned in the Court’s jurisprudence (see Denunciation of the Treaty of

November 2nd, 1865, between China and Belg ium, Provisional Measures, Orders of

8January1927, 15February and 18June1927, P.C.I.J, Series A, No.8 , p.7; The Factory at

Chorzów, Order of 21November1927, P.C.I.J., SeriesA, No.12 , p.6, or The Legal Status of the

South-Eastern Territory of Greenland, Order of 3 August 1932 , P.C.I.J, Series A/B, No. 48, p. 284;

or Fisheries Jurisdiction, Provisional Measures, Order of 17August1972, I.C.J. Reports 1972 ,

p. 16, paras. 21-22, and p. 34, paras. 22-23; Aegean Sea Continental Shelf, Provisional Measures,

Order of 11 September 1976, I.C.J. Reports 1976, p. 12, para. 33; Passage Through the Great Belt

(Finland v. Denmark), Provisional Measures, Ord er of 29July1991, I.C.J. Reports 1991 , p.16,

5Observations of Uruguay of 18-19 December 2006, Exhibits 11, 16, 20 and 25.
52
“Tabaré Vázquez withdraws the troops from Botnia at the company’s request”, Infobae.com,
17 December 2006, Document No. 11 submitted by Argentina.
5Request for the indication of provisional measures, 30 November 2006, p. 16, para. 26. - 43 -

para.16, and pp.18-19, paras.27-29; LaGrand (Germany v. United States of America),

Provisional Measures, Order of 3March1999, I.C.J. Reports 1999 , pp.14-15, para.22; Arrest

Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Provisional Measures,

Order of 8December2000, I.C.J. Reports 2000 , p. 201, para.69; Avena and other Mexican

Nationals (Mexico v. United States of America), Provisional Measures, Order of 5 February 2003,

I.C.J. Reports 2003, p.89, para. 49; Certain Criminal Proceedings in France (Congo v. France),

Provisional Measures, Order of 17June2003, I.C.J. Reports 2003 , p.22, para.22, or Pulp Mills

on the River Uruguay (Argentina v. Uruguay), Provisional Measu res, Order of 13July2006 ,

para. 61). Even if the damage about which Ur uguay complains could be established and found to

be enormous ⎯ which is far from the case ⎯ and even if it was attributable to the conduct of the

demonstrators in Entre Rios province ⎯ which is even further from the case ⎯ Uruguay has

51 signally failed to show ⎯ has not even attempted to show ⎯ that it was “irreparable” within the

meaning of the Court’s jurisprudence. Moreover, the ad hoc Arbitral Tribunal to which Uruguay

referred the same facts and which delivered a ruling in the Mercosur framework made no finding of

54
economic damage to Uruguay .

29. Secondly and above all, whatever are the intentions of the population of the

Gualeguaychú region, a mystery remains: how c ould the partial interruption of traffic on certain

roads (and of course not of all traffic between th e two countries!) and the risk of damage to the

Uruguayan economy have any influence whatsoever on the construction of the pulp mills? The

acts about which Uruguay is now complaining ha ve taken place ever since work began at

FrayBentos, but this did not prevent the Uruguayan authorities from imperturbably granting the

necessary authorizations one by one. Moreover, since the same causes produ ce the same effects,

we cannot see why in the future the (sporadic) roa dblocks, even if they were to remain in place,

would make it more necessary for Uruguay to abandon the Orion project ⎯ if it persists in wishing

to pursue it despite the risk highlighted by the Court in its July2006 Order 5. Admittedly, the

inhabitants of Gualeguaychú, who, I note in p assing, are not a party to the dispute which has

54
Request by Uruguay for the indication of provisional measures, 30 November 2006, Ann. 2, paras. 163-165 and
paras. 188-189.
55
Para. 78. - 44 -

brought us together here, hope that their acti on will finally convince the Uruguayan Authorities to

relinquish the construction of the Botnia plant at its planned location. But there can be no legal

link between their demonstrations and any possible decision to discontinue the project. If it is

discontinued, it will either be because Uruguay so d ecides or the Court so decides. Moreover, it

would definitely not constitute a prejudice; on the contrary, everyone stands to gain. Furthermore,

discontinuation of the project would not, in legal te rms, be a consequence of the roadblocks but of

a decision by the Uruguayan Government or by the Court; it would have no legal relationship with

the roadblocks. In actual fact, Uruguay has always been free, and is still free, either to continue the

building work or to abandon it; it has made that choice ⎯ in spite of the roadblocks.

52 30. Madam President, in the LaGrand Judgment of 27 June 2001, the Court held that “[t]he

context in which Article41 has to be seen within the Statute is to prevent the Court from being

hampered in the exercise of its functions because the respective rights of the parties to a dispute

before the Court are not preserved” ( (Germany v. United States of America), Judgment, I.C.J.

Reports 2001, pp.502-503, para.102). The measure th at Uruguay is requesting you to indicate,

Members of the Court, cannot assist in attaining that objective; it is basically devoid of any

connection with the respective rights of the Parties to the dispute referred to you by Argentina last

May. It relates to a different issue, a different treaty and a different jurisdiction.

31. In fact, a precedent that springs to mind for the present proceedings is the “non-case” that

gave rise to the Court’s Order of 22 September 1995 . Following the submission of a “Request for

the Examination of the Situation” by New Zealand after France had resumed nuclear testing in the

Pacific, the Court held that the request w as unrelated to the situation covered by the

1974Judgment, paragraph63 of whic h afforded the possibility of an examination “if the basis of

this Judgment were to be affected” ( Nuclear Tests (NewZealand v. France), Judgment, I.C.J.

Reports 1974 , p.477, para.63). Accordingly, the Court, without any further examination of

NewZealand’s request for provisional measures, “i nstructed the Registrar, pursuant to Article26,

paragraph 1 (b), of the Rules, to remove that Request from the General List...” ( Request for the

Examination of the Situation in Accordance w ith Paragraph63 of the Court’s Judgment of

20December1974 in the Nuclear Tests (New Zealand v. France) Case (NewZealand v. France),

Order of 22 September 1995, I.C.J. Reports 1995 , p. 306, para. 66). By the same token, it should - 45 -

be noted that in the event of a manifest lack of jurisdiction, the Court is of the opinion that “within

a system of consensual jurisdiction, to mainta in on the General List a case upon which it appears

certain that the Court will not be able to adjudicate on the merits would most assuredly not

contribute to the sound administration of justice”, which you decided twice in 1999 (Legality of the

Use of Force (Yugoslavia v. Spain; Yugoslavia v. United States of America), Provisional

Measures, Orders of 2 June 1999, I.C.J. Reports 1999, p. 773, para. 35; p. 925, para. 29).

53 32. Of course, in the present instance there can be no question of removing the case from the

Court’s General List, since both Parties acknowledge its jurisdiction pursuant to Article60 of the

1975 Statute of the River Uruguay. However, the notion underpinning the 1995 decision is still

transposable mutatis mutandis : the request for provisional measures filed by Uruguay is so

manifestly alien to both the substance and the object of the Application that, in Argentina’s view, it

could ⎯ and doubtless should ⎯ have been summarily rejected if the Rules of Court provided for

a procedure of that kind.

33. Madam President, that concludes Argentin a’s arguments. I thank you kindly, Members

of the Court, for your attention on behalf of the whole delegation of the Argentine Republic.

Le PRESIDENT : Je vous remercie, M. Pellet.

Cet exposé conclut l’audience de cet après-mi di ; les Parties seront de nouveau entendues en

leur réplique orale. L’Uruguay aura la parole demain à 10heures et l’Argentine à 16h30.

Chacune des Parties disposera d’un maximum de deuxheures pour présenter sa réplique, durée

qu’elle n’est pas obligée d’utiliser en totalité.

L’audience est levée.

L’audience est levée à 17 h 30.

___________