INTERNATIONAL COURT OF JUSTICE
2006/2 Summary
2006 July 13
Request for the indication of provisional measures
Application and request for the indication of provisional measures
The Court recalls that, by an Application filed in the Registry of the Court on 4May2006,
the Argentine Republic (hereinafter “Argentin
Republic of Uruguay (hereinafter “Uruguay”) for the alleged breach by Uruguay of obligations
under the Statute of the RiverUruguay, which was signed by Argentina and Uruguay on
26 February 1975 and entered into force on 18 September 1976 (hereinafter the “1975 Statute”). In
its Application, Argentina claims that that breach arises from “the authorization, construction and
future commissioning of two pulp mills on the Rive r Uruguay”, with reference in particular “to the
effects of such activities on the quality of the waters of the River Uruguay and on the areas affected
by the river”. Argentina explains that the 1975 Statute was adopted in accordance with Article 7 of
the Treaty defining the boundary on the River Ur uguay between Argentina and Uruguay, signed at
Montevideo on 7 April 1961 and which entered into force on 19 February 1966, which provided for
the establishment of a joint régime for the use of the river.
Argentina bases the jurisdiction of the Court on Article 36, paragraph 1, of the Statute of the
Court and on the first paragraph of Article 60 of the 1975 Statute, which provides as follows: “Any
dispute concerning the interpretation or applica tion of the [1961] Treaty and the [1975] Statute
which cannot be settled by direct negotiations may be submitted by either Party to the International
Court of Justice”. Argentina claims that directnegotiations between the Parties have failed.
According to Argentina, the purpose of the 1975 Statute is “to establish the joint machinery
necessary for the optimum and rational utilization”
shared by the two States and constitutes their common boundary. In addition to governing
“activities such as conservation, utilization and
1975Statute deals with “obligations of the Parties regarding the prevention of pollution and the
liability resulting from damage inflicted as a resu lt of pollution” and sets up an “Administrative
Commission of the River Uruguay” (hereinafter “CARU”, in its Spanish acronym) whose functions
include regulation and co-ordination. Argentina s ubmits, in particular, that Articles7 to 13 of the
Statute provide for an obligatory procedure for prior notification and consultation through CARU
for any party planning to carry out works liable to a ffect navigation, the régime of the river or the
quality of its waters. - 2 -
Argentina states that the Government of Uru guay, in October 2003, “ unilaterally authorized
the Spanish company ENCE to construct a pulp mill near the city of Fray Bentos”, a project known
as “Celulosa de M’Bopicuá” (hereinafter “CMB”), and claims that this was done without
complying with the above-mentioned notification an d consultation procedure. It maintains that,
despite its repeated protests c oncerning “the environmental impact of the proposed mill”, made
both directly to the Government of Uruguay and to CARU, “the Uruguayan Government has
persisted in its refusal to follow the procedures prescribed by the 1975Statute”, and that Uruguay
has in fact “aggravated the dispute” by author izing the Finnish company OyMetsä-BotniaAB
(hereinafter “Botnia”) in February2005 to construct a second pulp mill, the “Orion mill”, in the
vicinity of the CMB plant. According to Ar gentina the “Uruguayan Government has further
aggravated the dispute” by issuing authorization to Botnia in July 2005 “for the construction of a
port for the exclusive use of the Orion mill with out following the proced ures prescribed by the
1975 Statute”.
Argentina concludes its Application by requesting the Court to
“adjudge and declare:
1. that Uruguay has breached the obligations incumbent upon it under the
1975Statute 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 procedures prescribed in ChapterII of the
1975 Statute;
(d) the obligation to take all necessary measures to preserve the aquatic
environment and prevent pollution and the obligation to protect biodiversity
and fisheries, 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; and
2. that, by its conduct, Uruguay has enga ged its international responsibility to
Argentina;
3. that Uruguay shall cease its wrongful conduct and comply scrupulously in future
with the obligations incumbent upon it; and
4. that Uruguay shall make full reparation for the injury caused by its breach of the
obligations incumbent upon it.”
The Court recalls that, after filing its Application on 4 May 2006, Argentina also submitted a
request for the indication of provisional measures, pursuant to Article 41 of the Statute of the Court
and to Article73 of the Rules of Court, in which it refers to the basis of jurisdiction of the Court
invoked in its Application, and to the facts set out therein. At the conclusion of its request for the
indication of provisional measures Argentina asks the Court to indicate that:
“(a) pending the Court’s final judgment, Uruguay shall: - 3 -
(i) suspend forthwith all authorizations for the construction of the CMB and
Orion mills;
(ii) take all necessary measures to suspend building work on the Orion mill; and
(iii) take all necessary measures to ensure that the suspension of building work on
the CMB mill is prolonged beyond 28 June 2006;
(b) Uruguay shall co-operate in good faith with Argentina with a view to ensuring the
optimum and rational utilization of the Ri ver Uruguay in order to protect and
preserve the aquatic environment and to prevent its pollution;
(c) pending the Court’s final judgment, Uruguay shall refrain from taking any further
unilateral action with respect to construc tion of the CMB and Orion mills which
does not comply with the 1975 Statute and the rules of international law necessary
for the latter’s interpretation and application;
(d) Uruguay shall refrain from any other action which might aggravate or extend the
dispute which is the subject-matter of the present proceedings or render its
settlement more difficult.”
Arguments of the Parties at the hearings
The Court observes that at the hearings, which took place on 8 and 9June2006, Argentina
reiterated the arguments set out in its Application and its request for the indication of provisional
measures, and claimed that the conditions for th e indication of provisional measures had been
fulfilled.
Argeniattaar argued that its rights under the 1975Statute arose in relation to two
interwoven categories of obligations: “obligations of result that are of a substantive character, and
obligations of conduct that have a procedural character”. With respect to substantive obligations,
Argentina observed that Article 41 (a) of the 1975 Statute created for it at least two distinct rights:
first, “the right that Uruguay shall prevent pollution” and, second, “the right to ensure that Uruguay
prescribes measures ‘in accordance with applicable international standards’”, and Argentina
claimed that Uruguay had respected neither of these obligations. Argentina further asserted that the
substantive obligations under the Statute included “Uruguay’s obligation not to cause
environmental pollution or consequential economic losses, for example to tourism”. It added that
Articles7 to 13 of the 1975Statute and Article60 thereof give it a number of procedural rights:
“first, the right to be notified by Uruguay before works begin; secondly, to express views that are
to be taken into account in the design of a prop osed project; and, thirdly, to have th[e] Court
resolve any differences before construction takes place”. Argentina emphasized that, according to
Articles9 and12 of the 1975Statute, Uruguay had the obligation “to ensure that no works are
carried out until either Argentina has expressed no objections, or Argentina fails to respond to
Uruguay’s notification, or the Court had indicated the positive conditions under which Uruguay
may proceed to carry out works”. It submitted th at none of these three conditions had yet been
met, despite the fact that the above-mentione d procedures are mandatory and “admit of no
exception”. Argentina further emphasized that , in its view, Article9 of the 1975Statute
“established a ‘no construction’ obligation... of central importance to this phase of the
proceedings”.
Argentina maintained that its rights, de rived from both substantive and procedural
obligations, were “under immediate threat of serious and irreparable prejudice”, contending that the
site chosen for the two plants was “the worst imag inable in terms of protection of the river and the
transboundary environment” and that environmenta l damage was, at the least, “a very serious
probability” and would be irreparable. It submit ted that economic and social damage would also - 4 -
result and would be impossible to assess, and furt her contended that the construction of the mills
“[was] already having serious negative effects on tourism and other economic activities of the
region”, including suspension of investment in t ourism and a drastic decline in real estate
transactions. Argentina asserted that there was no doubt that the condition of urgency necessary for
the indication of provisional measures was satisfied, since “when there is a reasonable risk that the
damage cited may occur before delivery of judg ment on the merits, the requirement of urgency
broadly merges with the condition [of the] existence of a serious risk of irreparable prejudice to the
rights in issue”. Moreover, it observed that the construction of th e mills was “underway and
advancing at a rapid rate” and that the construction itself of the mills was causing “real and present
damage” and noted that the mills “would patently be commissioned before [the Court] [would be]
able to render judgment” since commissioning was scheduled for August 2007 for Orion and
June2008 for CMB. Argentina claimed that the suspension of both the authorizations for the
construction of the plants and of the construction work itself was the only measure capable of
preventing the choice of sites for the plants be coming a fait accompli and would avoid aggravating
the economic and social damage caused by the construction of the plants.
The Court then considers the arguments put forward by Uruguay. It notes that Uruguay
stated that it “had fully complied with the 1975 Statute of the River Uruguay throughout the period
in which this case has developed” and argued that Argentina’s request was unfounded and that the
requisite circumstances for a request for provisional measures were entirely lacking.
Uruguay stated that it did not dispute that Article60 of the 1975Statute constituted a
primafacie basis for the jurisdiction of the Court to hear Argentina’s request for the indication of
provisional measures, but that this provision establishes the Court’s jurisdiction only in relation to
Argentina’s claims concerning the 1975Statute and not for disputes falling outside the Court’s
jurisdiction, such as those concerning “tourism , urban and rural proper ty values, professional
activities, unemployment levels, etc.” in Arge ntina, and those regarding other aspects of
environmental protection in transboundary relatio ns between the two States. It contended that
Argentina’s request for the indication of provisional measures must be rejected because the
breaches of the Statute of which Uruguay is accused “prima facie lack substance” and, in “applying
both the highest and the most appropriate interna tional standards of pollution control to these two
mills”, Uruguay had “met its obligations under Article41 of the Statute”. Uruguay further stated
that it had “discharged the obligations imposed upon it by Articles 7 et seq. [of the 1975 Statute] in
good faith”. In particular, it contended that those Articles did not give either party a “right of veto”
over the implementation by the other party of industrial development projects, but were confined to
imposing on the parties an obligation to engage in a full and good-faith exchange of information
under the procedures provided by the Statute or agreed between them. Uruguay noted that it had
complied fully with that obligation by “inform[ing] Argentina ⎯ through CARU or through other
channels ⎯ of the existence of th[e] [pulp mill] pr ojects, describing them in detail with an
impressive amount of information”, and by “suppl [ying] all the necessary technical data to make
Argentina aware of the absence of any risk in regard to their potential environmental impact on the
River Uruguay”. It further asserted that it was the first time “in the 31years since the
[1975]Statute came into being” that Argentina had claimed it had “a procedural right under the
Statute, not only to receive notice and information and to engage in good faith negotiations, but to
block Uruguay from initiating projects during [the] procedural stages and during any litigation that
might ensue”. Uruguay moreover stated that th e dispute between Uruguay and Argentina over the
pulp mills had in reality been settled by an ag reement entered into on 2March2004 between the
Uruguayan Minister for Foreign Affairs and his Arge ntine counterpart, by which the two Ministers
had agreed, first, that the CMB mill could be built according to the Uruguayan plan, secondly, that
Uruguay would provide Argentina with information regarding its specifications and operation and,
thirdly, that CARU would monitor the quality of the river water once the mill became operational
in order to ensure compliance with the Statute. According to Uruguay, the existence of this
agreement had been confirmed a number of times, inter alia , by the Argentine Minister for Foreign
Affairs and by the Argentine Presiden t, and its terms had been extended so as to apply also to the
projected Orion mill. - 5 -
Moreover, according to Uruguay there is no current or imminent threat to any right of
Argentina, so that the conditions of risk of ir reparable harm and urgenc y are not fulfilled. In
support of its position, Uruguay inter alia explained that the environmental impact assessments so
far undertaken, as well as those to come, and the regulatory controls and strict licensing conditions
imposed by Uruguayan law for the construction and operation of the mills, guaranteed that the
latter would not cause any harm to the RiverUruguay or to Argentina, and that they would abide
by the strict requirements imposed by “the latest European Union 1999 International Pollution
Prevention and Control(IPPC) recommendations, w ith which compliance is required by all pulp
plants in Europe by 2007”. Uruguay pointed out that the mills would not be operational before
August 2007 and June 2008 respectively, and that a number of further conditions would have to be
met before that stage was reached. Uruguay conclu ded that, even if it were to be considered that
the operation of the mills might lead to “the contamination of the river”, the gravity of the “alleged
peril to Argentina” was not “sufficiently certain or immediate as to satisfy the Court’s requirement
that it be ‘imminent’ or urgent”.
Lastly, Uruguay argued that suspending constructions of the mills would cause such
economic loss to the companies involved and their shareholders that it would be highly likely to
jeopardize the entire two projects. Uruguay contended that the provisional measures sought by
Argentina would therefore irreparably prejudice its sovereign right to implement sustainable
economic development projects in its own territory. It pointed out in this connection that the pulp
mill projects represented the largest foreign invest ment in Uruguay’s history, that construction in
itself would create many thousands of new jobs and that, once in service, the mills would have “an
economic impact of more than $350 million per year ”, representing “an increase of fully 2 per cent
in Uruguay’s gross domestic product”.
In its second round of oral observations Argentina inter alia maintained that, according to
Article 42 of the 1975 Statute and established international principles, the 1975 Statute covered not
only the pollution of the river, as claimed by Uruguay, but also pollution of all kinds resulting from
the use of the river as well as the economic and social consequences of the mills. Argentina
strongly disputed Uruguay’s assertion that it ha d prima facie fulfilled its obligations under the
1975 Statute; it observed that the projects had ne ver been formerly notified to CARU by Uruguay,
and that Uruguay had not provided adequate in formation regarding the pulp mills. Argentina
further asserted that there wa s no bilateral agreement of 2 March2004 to the effect that
construction of the CMB mill could proceed as planned. It contended that the arrangement reached
at the meeting of that date between the Ministers for Foreign Affairs of the two States was simply
that Uruguay would transmit all the information on CMB to CARU and that CARU would begin
monitoring water quality in the area of the proposed site, but that Uruguay had failed to supply the
information promised.
For its part, Uruguay noted that “Argentina [did] not deny obtaining from Uruguay a
substantial amount of informatio n through a variety of machinery and channels”, and that the
measures taken by Uruguay in this regard were “fully supported by the CARU minutes”. It
reiterated its contention that the 1975 Statute does not confer a “right of veto” upon the parties and
argued that, in order to resolve any “difficulties of interpretation caused by an incomplete text”, it
was necessary to turn to Article 31, paragraph 3, of the Vienna Convention on the Law of Treaties
and, in particular, to consider “any subsequent practice from which important inferences can be
drawn, making it possible to identify the agreem ent between the parties on how to interpret the
treaty in question”. According to Uruguay, “the subsequent verbal agreement between the two
countries of 2 March 2004 made by their Foreign Mi nisters” constituted a specific example of such
subsequent practice excluding any interpretation wh ich would recognize a right of veto. Uruguay
further reiterated that the bilateral agreemen t of 2March2004, whose existence had been
acknowledged by the President of the Argentine Re public, clearly authorized construction of the
mills. In concluding its second round of oral observations, Uruguay e xpressly reiterated “its
intention to comply in full with the 1975 Statut e of the River Uruguay and its application”, and
repeated “as a concrete expression of that intention... its offer of conducting continuous joint - 6 -
monitoring with the Argentine Rep ublic” regarding the environmental consequences of the mills’
future operations.
The Court’s reasoning
The Court begins by observing that, in dealing with a request for provisional measures, it
need not finally satisfy itself that it has jurisdictio n on the merits of the case, but will not indicate
such measures unless the provisions invoked by the applicant appear, prima facie, to afford a basis
on which the jurisdiction of the Court might be established.
The Court notes that Uruguay does not deny th at the Court has jurisdiction under Article 60
of the 1975Statute. It explains that Uruguay, however, asserts that such jurisdiction exists prima
facie only with regard to those aspects of Argentina’ s request that are directly related to the rights
Argentina is entitled to claim under the 1975 Statute, and that Uruguay insists in this regard that
rights claimed by Argentina relating to any allege d consequential economic and social impact of
the mills, including any impact on tourism, are not covered by the 1975 Statute.
The Court, taking account of the fact that the Parties are in agreement that it has jurisdiction
with regard to the rights to which Article 60 of the 1975 Statute applies, states that it does not need
at this stage of the proceedings to address this further issue raised by Uruguay. It concludes,
therefore, that it has prima facie jurisdiction under Ar ticle60 of the 1975Statute to deal with the
merits, and thus may address the present request for provisional measures.
*
The Court then recalls that the object of its power to indicate provisional measures is to
permit it to preserve the respective rights of the pa rties to a case “[p]ending the final decision” in
the judicial proceedings, provided such measures are necessary to prevent irreparable prejudice to
the rights in dispute. The Court further states that this power is to be exercised only if there is an
urgent need to prevent irreparable prejudice to the rights that are the subject of the dispute before
the Court has had an opportunity to render its decision.
The Court begins by addressing Argentina’s requests directed at the suspension of the
authorization to construct the pulp mills and the suspension of the construction work itself. As
regards the rights of a procedural nature invoked by Argentina, the Court leaves to the merits stage
the question of whether Uruguay may have failed to a dhere fully to the provisions of Chapter II of
the 1975 Statute when it authorized the construction of the two mills. The Court adds that it is not
at present convinced that, if it should later be s hown that Uruguay had failed, prior to the present
proceedings or at some later stage, fully to adhe re to these provisions, any such violations would
not be capable of being remedied at the merits stage of the proceedings.
The Court takes note of the interpretation of the 1975Statute advanced by Argentina to the
effect that it provides for a “no construction” obligation, that is to say that it stipulates that a project
may only proceed if agreed to by both parties or that, lacking such agreement, it shall not proceed
until the Court has ruled on the dispute. The Court, however, takes the view that it does not have to
consider that issue for current purposes, since it is not at present convinced that, if it should later be
shown that such is the correct interpretation of th e 1975Statute, any consequent violations of the
Statute that Uruguay might be found to have committed would not be capable of being remedied at
the merits stage of the proceedings.
As regard the rights of a substantive nature invoked by Argentina, the Court recognizes the
concerns expressed by Argentina for the need to pr otect its natural environment and, in particular, - 7 -
the quality of the water of the River Uruguay. It recalls that it has had occasion in the past to stress
the great significance it attaches to respect for th e environment, in particular in its Advisory
Opinion on the Legality of the Threat or Use of Nuclear Weapons and in its Judgment in the case
concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia).
In the Court’s view, there is, however, nothing in the record to demonstrate that the actual
decision by Uruguay to authorize the construction of the mills poses an imminent threat of
irreparable damage to the aquatic environment of the River Uruguay or to the economic and social
interests of the riparian inhabitants on the Argentine side of the river.
The Court observes that Argent ina has not persuaded it that the construction of the mills
presents a risk of irreparable damage to the e nvironment; nor has it been demonstrated that the
construction of the mills constitutes a present thr eat of irreparable economi c and social damage.
Furthermore, Argentina has not sh own that the mere suspension of the construction of the mills,
pending final judgment on the merits, would be capable of reversing or repairing the alleged
economic and social consequences attributed by Argentina to the building works.
Moreover, Argentina has not at present provid ed evidence that suggests that any pollution
resulting from the commissioning of the mills would be of a character to cause irreparable damage
to the River Uruguay. The Court notes that it is a function of CARU to ensure the quality of water
of the river by regulating and minimizing the level of pollution and that, in any event, the threat of
any pollution is not imminent as the mills ar e not expected to be operational before
August 2007 (Orion) and June 2008 (CMB).
The Court adds that it is not persuaded by the argument that the rights claimed by Argentina
would no longer be capable of protection if the Court were to decide not to indicate at this stage of
the proceeding the suspension of the authorization to construct the pulp mills and the suspension of
the construction work itself.
The Court finds, in view of the foregoing, that the circumstances of the case are not such as
to require the indication of a provisional measure ordering the suspension by Uruguay of the
authorization to construct the pulp mills or the su spension of the actual construction works. The
Court makes it clear, however, that, in proceeding with the authorization and construction of the
mills, Uruguay necessarily bears all risks relating to any finding on the merits that the Court might
later make. It points out that their construction at the current site cannot be deemed to create a
faitaccompli because, as the Court has had occasion to emphasize, “if it is established that the
construction of works involves an infringement of a legal right, the possibility cannot and should
not be excluded a priori of a judicial finding that such works must not be continued or must be
modified or dismantled”.
The Court then turns to the remaining provisional measures sought by Argentina in its
request. The Court points out that the present case highlights the importance of the need to ensure
environmental protection of shared natural resources while allowing for sustainable economic
development, and that it is in particular necessary to bear in mind the reliance of the Parties on the
quality of the water of the RiverUruguay for th eir livelihood and economic development; from
this point of view, account must be taken of the need to safeguard the continued conservation of the
river environment and of the rights of economic development of the riparian States.
The Court recalls in this connection that the 1975Statute was established pursuant to the
1961Montevideo Treaty defining the boundary on the River Uruguay between Argentina and
Uruguay, and that it is not disputed between the Parties that the 1975Statute establishes a joint
machinery for the use and conservation of the river. The Court obse rves that the detailed
provisions of the 1975Statute, which require co-operation between th e parties for activities
affecting the river environment, created a comprehe nsive and progressive régime; of significance
in this regard is the establishment of the CA RU, a joint mechanism with regulatory, executive, - 8 -
administrative, technical and conciliatory functions , entrusted with the proper implementation of
the rules contained in the 1975 Statute governing the management of the shared river resource, and
that the procedural mechanism put in place under the 1975 Statute constitutes a very important part
of that treaty régime.
The Court declares that the Parties are require d to fulfil their obligations under international
law and stresses the need for Argentina and Urugu ay to implement in good faith the consultation
and co-operation procedures provided for by th e 1975Statute, with CARU constituting the
envisaged forum in this regard. The Court furt her encourages both Parties to refrain from any
actions which might render more difficult the resolution of the present dispute.
Having regard to all the above considerations and to the commitment affirmed before the
Court by Uruguay during the oral proceedings to comply in full with the 1975Statute of the
RiverUruguay, the Court does not consider that there are grounds for it to indicate the remaining
provisional measures requested by Argentina. The Court concludes by recalling that its decision in
no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or
any questions relating to the admissibility of the Ap plication, or relating to the merits themselves,
and that it leaves unaffected the right of Argent ina and of Uruguay to submit arguments in respect
of those questions. The decision also leaves unaffected the right of Argentina to submit in the
future a fresh request for the indication of provisi onal measures under Article75, paragraph3, of
the Rules of Court, based on new facts.
*
The full text of the Order’s final paragraph (para. 87) reads as follows:
“For these reasons,
T HE C OURT ,
By fourteen votes to one,
Finds that the circumstances, as they now present th emselves to the Court, are not such as to
require the exercise of its power under Article 41 of the Statute to indicate provisional measures.
IN FAVOUR : President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma,
Parra-Aranguren, Buergenthal, Owada, Simma, Abraham, Keith, Sepúlveda-Amor,
Bennouna, Skotnikov; Judge ad hoc Torres Bernárdez;
A GAINST : Judge ad hoc Vinuesa.”
*
Judge ANJEVA appends a declaration to the Order of the Court; JudgesA BRAHAM and
B ENNOUNA append separate opinions to the Order of the Court; Judge ad hocINUESA appends a
dissenting opinion to the Order of the Court.
___________ Annex to Summary 2006/2
Declaration of Judge Ranjeva
Judge Ranjeva agrees with the Court’s decision to dismiss the request for provisional
measures. However, he is not entirely satisfied w ith the approach of the Court, which focuses on
urgency and the risk of irreparable prejudice in the event of the non-indication of such measures.
The parties’ obligation to comply with provis ional measures pursuant to Article94 of the
United Nations Charter requires the Court to ensure that its decision cannot be viewed as a
provisional judgment capable of prejudging future scrutiny of and findings on the merits. An
examination of the effects of the measures is th us not, in itself, sufficient to prevent such a
possibility; that examination must also be suppor ted by an analysis of the very purpose of the
measures requested.
It is for the Court to compare in limine the purpose of those measures with that sought
through the principal proceedings and thus to dismiss direct, or in some cases indirect, requests that
would, in reality, result in a provisional judgment. Such an approach will, first, help to clarify the
relationship between the incidental proceedings and the principal proceedings so as to ensure that
the Court, when ruling on the merits, is not bound by the provisional measures and, secondly, to
limit the incidental proceedings to an examination of only the urgent parts of the request.
Separate opinion of Judge Abraham
While expressing his agreement with the dispositif of the Order, Judge Abraham regrets that
the Court did not seize the opportunity presented by this case to clarify the question of principle as
to the relationship between the merit, or prima facie merit, of the Applicant’s contentions in respect
of the right it claims and the ordering of the urgent measures it seeks. According to many
commentators, the Court, when ruling on a request for provisional measures, should refrain from
any consideration at all of the merit of the partie s’ arguments as to the existence and scope of the
rights in dispute and should confine itself to ascertaining whether, assuming that the right claimed
by the applicant is ultimately upheld in the final judgment, that right is threatened with irreparable
injury in the meantime. Judge Abraham considers this view to be misguided. He points out that a
provisional measure enjoining the respondent to ac t or to refrain from acting in a particular way
necessarily interferes with the fundamental right of all sovereign States to act as they think best
provided that their acts comply with internationa l law. He deems it unthinkable that such an
injunction could be issued without the Court having first satisfied itself that there is at least an
appearance of merit in the applicant’s argume nt. In this regard, Judge Abraham draws a
connection between the issue he addresses and the Court’s affirmation in its Judgment in LaGrand
(Germany v. United States of America) (I.C.J. Reports 2001, p. 466) that measures indicated under
Article41 of the Statute are binding. Since an order by the Court obliges the State to which the
indicated measure is directed to comply with it, the Court cannot prescribe such a measure without
having conducted some minimum degree of review as to the existence of the rights claimed by the
applicant, and without therefore taking a look at the merits of the dispute.
Judge Abraham is of the view that this re view must necessarily be limited and closely
resemble the standard of fumus boni juris so familiar to other international courts and many
domestic legal systems. Regardless of the terminology employed, this amounts in substance to
verifying that three conditions have been satisfied to enable the Court to order a measure to
safeguard a right claimed by the applicant: there must be a plausible case for the existence of the
right; there must be a reasonable argument that the respondent’s conduct is causing, or liable to
cause, imminent injury to the right; and, finally, urgency in the specific circumstances must justify
a protective measure to safeguard the right from irreparable injury. - 2 -
Separate opinion of Judge Bennouna
JudgeBennouna regrets that the Court did not take the opportunity in the present case to
clarify the relationship between th e principal proceedings and the request for the indication of
provisional measures.
The two Parties engaged in a full-scale debate before the Court as to the very existence of the
right claimed by Argentina, whereby authorization to build the pulp mills could not be given, nor
work on the sites begun, without the prior agreement of both States. If such a right existed, the
indication of provisional measures, namely the withdrawal of that authorization and the suspension
of building work, would effectively follow naturally from it.
The Court should have considered whether, in certain circumstances, it is not obliged to
examine the prima facie existence of the right at issue ⎯ although it must not come to a final
decision at that point ⎯ when doubt remains due to the possible complexity, ambiguity or silence
of the texts concerned.
Judge Bennouna regrets that the Court did not enter into this issue and is of the opinion that
there is therefore a link missing in the reasoning of the Order.
Nevertheless, since JudgeBennouna considers that the evidence presented to the Court was
insufficient for it to determine prima facie whet her the right claimed by Argentina existed, and
since he is in agreement with the rest of the Court’s reasoning, he voted in favour of the Order.
Dissenting opinion of Judge ad hoc Vinuesa
Juadge Vinuesa disagrees with the Court’s find ing that “the circumstances, as they
present themselves to the Court, are not such as to require the exercise of its power” to indicate
provisional measures.
He insists on the necessity to apply the joint mechanism provided for by the 1975 Statute for
the optimum and rational utilization of the RiverUruguay, and notes the present uncertainty of a
risk of irreparable harm to the environment of th e RiverUruguay. In his opinion, the rights and
duties under the 1975Statute are an expression of the precautionary principle, which has been
conventionally incorporated by Uruguay and Arge ntina. Taking note of the legal effects of
Uruguay’s commitments before the Court to fully comply with the 1975 Statute,
Judge ad hocVinuesa considers that the Court, in order to guarantee those commitments, should
have indicated the temporary suspension of the construction of the mills until Uruguay notifies the
Court of the fulfilment of its obligations under the 1975 Statute.
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Summary of the Order of 13 July 2006