AU
CR 2006/57 (traduction)
CR 2006/57 (translation)
Mardi 19 décembre 2006 à 16 h 30 heures
Tuesday 19 December 2006 at 4.30 p.m. - 2 -
8 Le PRESIDENT: Veuillez vous asseoir. L’audience est ouverte. Messieurs les juges
Ranjeva, Abraham et Keith ne siégeront pas cet après-midi.
Je dois donner la parole immédiatement à M. Kohen, n’est-ce pas ?
KMOr. EN:
1. RGENTINA S POSITION ON U RUGUAY ’S REQUEST FOR THE
INDICATION OF PROVISIONAL MEASURES
1. Madam President, Members of the Court, in its decision of 29November last, the Court
envisaged a second round of oral arguments “if necessary”. Had it been consulted, Argentina
would have indicated that it did not feel thneed for a second round; but the Uruguayan Party
informed the Court, as it was entitled to do, that it held the opposite view. This morning’s
arguments have confirmed our view that a s econd round is unnecessary. The Uruguayan Party has
not replied to our arguments in support of dismissal of its request for provisional measures.
2. We responded yesterday to the few points in the arguments of our friends on the other side
of the Bar which, in our view, particularly needed to be rebutted, and we do not believe it is
necessary to try the patience of the Court by revi siting what was said by Uruguayan counsel point
by point. On the other hand, this second round gi ves us the opportunity to recapitulate briefly the
arguments of the Argentine Republic on the points of law dividing the Parties.
3. Madam President, at this stage of the oral arguments, it is best to focus on essentials rather
than attempting to be “scholarly” or to follow our opponents, who are likewise our friends, along
the meandering path of their complicated and sometimes tortuous arguments. I shall therefore keep
footnotes and citations to a minimum and simply recall the conditions that the Rules of Court,
complemented by the Court’s jurisprudence, im pose in respect of the indication of provisional
measures pertaining to the rights of a party, and restate my country’s position regarding each
condition.
4. As is well known, there are, in principle, three such conditions. For the Court to indicate
provisional measures:
(1) the Court’s jurisdiction must be established, at least prima facie;
9 (2) there must be “a threat of irreparable prejudice to the rights at issue”; and - 3 -
(3) there must be urgency.
5. A distinctive characteristic of the pro cedural application on which you are called upon to
rule, Members of the Court, concerns the first of these conditions. Clearly, neither Argentina nor
Uruguay disputes that the Court has jurisdiction ⎯ and not just prima facie jurisdiction ⎯ to rule,
pursuant to Article60 of the Statute of the River Uruguay, in the dispute referred to it by
Argentina. But a problem then arises: Uruguay ar gues, and Argentina disputes, that the Court can
rule, not on the initial dispute as set out in the Application of 4 May 2006 but on Uruguay’s request
of 29 November. I propose to address that issue first ⎯ taking the opportunity while I am on the
subject to identify the specific “rights at issue”(A), and then to say a few words about Uruguay’s
claims that those rights are exposed to an imminent risk (C) of irreparable harm (B).
A. The rights at issue – the question of a “relationship”
6. Madam President, the question of the “jurisdic tion” of the Court, as I have just defined it,
arises in the following way. It is patently clear that where the Court has been seised in due form of
a dispute, it does not follow that it can entert ain each and every request for provisional measures
filed by either Party. If tomorrow (or a few days ago ⎯ because unfortunately this is not a
hypothetical example...) Uruguay were to impose customs duties on goods coming from
Argentina in contravention of the Mercosur or WTO rules, this would certainly not warrant a
decision by the Court to indicate provisional measures in respect of the rights enjoyed by Argentina
under the Asunción Treaty or GATT 1994 on the pretext that a case involving the two countries is
on the Court’s docket and Uruguay’s conduct aggravates the dispute on which it has to rule.
7. Yet, Members of the Court, this is more or less precisely what Uruguay is asking you to
do: it is complaining that Argentina (allegedly, si nce this is far from having been demonstrated) is
not dealing rigorously enough with the spontane ous actions undertaken by the population of
Entre Ríos province that are sporadically and very partially hindering freedom of traffic and transit
between the two countries ⎯ I wish to remind the Court in passing that our opponents have at least
10 been gracious enough to acknowledge that these ac tions are neither directly attributable to
Argentina nor fomented “on the instructions of, or under the direction or control” of Argentina;
“there is no indisputable eviden ce to support such an assumption” ⎯ these are not my words, - 4 -
1
Madam President, but those of my eminent colleague and friend Professor Luigi Condorelli . What
rules of international law are these blockades supposed to breach? The 1975 Statute, the sole basis
for the Court’s jurisdiction in this matter? Certainly not! The Asunción Treaty organizing
Mercosur . . .
8. This morning my colleague AlanBo yle acknowledged that the second request in
Uruguay’s petitum before the ad hoc Mercosur Arbitral Tribunal is identical to the first provisional
measure that Uruguay is seeking from this Court. Incidentally, this application by Uruguay was
2
dismissed by the Arbitral Tribunal . My colleague AlanBoyle also sought to draw a distinction
between the aims of the different blockades in the past. It appears, according to our opponent, that
the demonstrators’ goal has changed: it is now a matter of compelling Uruguay to abandon its
ostensible right to build the Orion mill. This is completely at odds with Uruguay’s request: «Il y a
un an, l’Argentine a permis aux mêmes groupes de citoyens argentins d’établir un barrage similaire
dans le même but déclaré : obliger l’Uruguay à mettre un terme à la construction des usines de pâte
3 4
à papier.» As Argentina said yesterday , the social movements began as soon as the plans became
known. Their goal has always been the same: to prevent the planned mills from being constructed
in the region.
Alan Boyle has also attempted to play do wn Uruguay’s own recognition in its Memorial
filed with the Mercosur Tribunal of the absence of any relationship between the construction of the
Orion mill and freedom of movement. To account for this, he referred to the context of this
passage 5. As a result, the Argentine position has been bolstered.
9. The relevant paragraph of the Uruguayan Memorandum reads:
11 “In the first place, the construction of the aforesaid plants and the possible
environmental considerations related to them, are absolutely alien to this controversy
[submitted to the ad hoc Arbitral Tribunal]. They cannot form part of the facts or the
legal basis of this dispute.”
1CR 2006/54, p. 31, para. 6 (Condorelli).
2
See point 3 of the operative part of the arbitral ard, Uruguayan request for the indication of provisional
measures, Ann. 2.
3
P. 4, para. 7.
4CR 2006/55, p. 10, paras. 13-14 (Ruiz Cerutti).
5CR 2006/56, paras. 7-8 (Boyle). - 5 -
The explanation which follows in the Uruguayan Memorandum, and which ProfessorBoyle read,
simply states that the environmental motives of the protesters cannot justify the roadblocks on the
pretext of environmental protection. Clearly, that does not change matters at all: “the construction
of the aforesaid plants is absolutely al ien to the controversy [submitted to the ad hoc Arbitral
Tribunal]”. Uruguay’s aim was to strip the motiv es of the protesters of any meaning that could
justify their conduct. Now it claims that the demonstrators’ goal is the decisive ⎯ and indeed the
only ⎯ element capable of linking their conduct to the Statute of the River Uruguay.
10. Our opponents tell us that there actually is a link with the case that the Court has the
jurisdiction to hear: the (supposed) unlawfulness of these acts is apparently not due to their
infringement of the rules of the Statute of the River Uruguay, but the goal of the social movements
in EntreRíos province, which Argentina has fail ed to deal with rigorously enough in Uruguay’s
view, is the same as that pursued by Argentina when it filed its Application with the Court.
Uruguay claims, but has not shown, that the aim of the protesters is to compel Uruguay to
relinquish its supposed right . The demonstrators want the Uruguayan Government to halt
construction of the Orion mill or to relocate it. The question of whether or not Uruguay possesses a
right is a completely different matter. Memb ers of the Court, demonstrations and social
movements exist in every country, or almost every country, and can involve acts such as building
roadblocks, even elsewhere in Uruguay. There is nothing new in citizens demanding that their own
or a foreign Government pursue a particular policy. There is nothing new either in their taking
action to that end in ways that may create difficulties for those directly concerned or for the general
public.
11. But let us accept the Uruguayan theory for th e sake of argument. Where is the legal link
of causality? In what way do demonstrators’ prot ests against the installation of a giant industrial
plant on the opposite bank of the river to that on wh ich they live cause irreparable prejudice to the
rights Uruguay claims to derive from the Statute of the River Uruguay? How could the Court
sanction Argentina ⎯ and what would it involve? An order to put an end to the protest movements
12 which, if they were unlawful, would be held to be unlawful because they infringe ostensible rights
that the Court cannot enforce since ⎯ and the two Parties concur on this point ⎯ they flow from
instruments under which the Court has no jurisdiction? Such a request is clearly inadmissible. - 6 -
And I would add that, in accordance with well- established jurisprudence, the Court does not
concern itself with motives and intentions; it makes findings based on facts and acts ( Asylum
(Colombia/Peru), Judgment, I.C.J. Reports1950 , p.287; Barcelona Traction, Light and Power
Company (Belgium v. Spain) (New Application: 1962), Pre liminary Objections, Judgment, I.C.J.
Reports 1964, p. 20).
12. With suspicious adroitness ⎯ anything artificial is suspect ⎯ Uruguay endeavours to
overcome this difficulty by producing out of the blue two ostensible rights that it purportedly
possesses as a Party to the case referred to the Court by Argentina, in particular the right to a Court
judgment on the dispute based on Article 60 of the 1975 Statute.
13. I would just note in passing the other Part y’s remarkable silence when it comes to the
articles of the Statute pertaining to Uruguay’s ostens ible right to construct the Orion mill. It was
only today that it felt obliged to mention them for the first time. That right apparently stems from
its sovereign right to sustainable development, in conformity with a ‘proper’ interpretation of its
6
obligations flowing from the procedure provided for in Articles7 to12 of the 1975Statute . We
have taken note of this assertion. But it does not explain in real terms either which particular rights
Uruguay is exercising or how they risk being exposed to irreparable prejudice. Plainly, our
adversaries refuse to explain themselves.
14. I would add that, contrary to the repeated assertions of the Uruguayan Party, the Court’s
Order of 13July2006 manifestly did not creat e any such right: when it refused to act on
Argentina’s requests, the Court did not compel Uruguay to halt the construction of the Botnia
mill ⎯ it continues to work on the project at its own risk. However, it is incorrect to contend that it
has a right to do so pending the Judgment on the merits . It is Uruguay’s choice, and likewise a
13 risk; nothing more. As for Argentina, it has the ri ght to continue to protest against what it regards
as a major violation of a treaty to which it is keen ly attached: the 1975Statute, which has been
divested of all substance, in Argentina’s view, by the attitude of Uruguay. The LaGrand
jurisprudence does not work ‘the other way around’: the Court’s refusal to order the provisional
measures requested by Argentina in May this year does not mean that the Respondent, which
6
CR 2006/56, para. 18 (Boyle). - 7 -
remains entirely responsible for its actions, has been given carte blanche. Similarly, if you refuse,
as Argentina is convinced you will, to grant the measures requested today by the Respondent, this
will not constitute a kind of general “absolution” fo r its conduct in the not inconceivable event that
such conduct is considered incompatible with other rules of international law ⎯ unrelated, I
reiterate, to the case before you.
15. The other “right” that Uruguay claims is equally artificial. Uruguay is making up a kind
of “legal status” for the State party to the disput e. According to this n ovel argument, everything
stops as from the time when the Court is seised; and as in the MuséeGrévin or
MadameTussaud’s, the Court would be in a wax museum, frozen in time in a situation that is
nevertheless of necessity developing and changing. It is certainly not out of lack of respect for the
Court that we can say that, quite the contrary, “ life goes on” and diplomacy, for example, does not
lose its rights. Quite the contrary, as the Court it self has often stated: “pending a decision of the
Court on the merits, any negotiation between the Pa rties with a view to achieving a direct and
friendly settlement is to be welcomed” ( Passage through the Great Belt (Finland v. Denmark),
Provisional Measures, Order of 29 July 1991 , I.C.J. Reports 1991, p. 20, para. 35. See also Free
Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, P.C.I.J., Series A, No. 22,
p. 13 or Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986 , p. 577,
para. 46).
16. I know the objection, Madam President: according to Uruguay, what is at issue here is
not diplomatic action by Argentina but its allege d attempted “coercion” against Uruguay. As we
have clearly stated, the Court has no jurisdiction to consider our opponents’ lengthy expositions on
the merits of a dispute which is not before it; I am sorry to disappoint my learned friend
Luigi Condorelli on this point: for the discussion on the problems of attribution which he has most
14 skilfully developed to be relevant, the first requirement is that you shoul d have jurisdiction to take
up the matter; that jurisdiction, Madam President, Members of the Court, you do not have.
17. So without going into this discussion, let me just say that the question of illegal coercion
could only arise if, as the International Law Commission states in its commentary on Article 18 of
the Articles on State Responsibility for Internati onally Wrongful Acts, we were faced with
“conduct which forces the will of the coerced State . . ., giving it no effective choice but to comply - 8 -
with the wishes of the coercing State. It is not sufficient that compliance with the obligation is
7
made more difficult or onerous” . Later the Commission adds: “the coercing State must coerce the
very act which is internationally wrongful. It is not enough that the consequences of the coerced
8
act merely make it more difficult for the coerced State to comply with the obligation” . Mutatis
mutandis the same applies here: even admitting th at the conduct that Uruguay attributes to
Argentina makes the continuing construction of the Botnia plant “more difficult or onerous”
(which, incidentally, Uruguay has never proved and which is untrue), it is plainly not impossible.
18. But that is not the point. The point is rath er that there is definitely no legal connection
between Uruguay’s request, on the one hand, and the 1975Statute which constitutes the basis of
the Court’s jurisdiction or the subject of the re quest of which the Court was seised by Argentina
last May, on the other.
19. Moreover, let us suppose that Uruguay were to seise the Court of the dispute for which it
seeks settlement today through its request for provi sional measures, by means of a fresh request
based on Article60 of the 1975Statute. It seems self-evident that the Court would decline
jurisdiction, there being no jurisdictional link: that provision does not enable this distinguished
Court to rule on any dispute whatsoever between the Parties, but only on “[a]ny dispute concerning
the interpretation or application of the Treaty an d the Statute...”; the dispute that Uruguay
presents to the Court bears no relation to this. Article60 does not exist in a vacuum. Uruguay
15
feels able to invoke it without reference to any subs tantive rule of the treaty of which it forms part.
It would appear that Uruguay is turning Article 60 of the Statute of the River Uruguay into a kind
of general treaty for the judicial settlement of disputes between our two countries!
B. The alleged “irreparable harm”
20. However, let us assume, Madam Preside nt, that Uruguay’s request meets this first
condition and that the Court cons iders (“by some remote chance” as they say) that there is a
reasonable legal connection between this incidental request and the main dispute before the Court.
7
International Law Commission: Report on th e work of its Fifty-third Session(2Official Records of the
General Assembly, Fifty-sixth Session, Supplement No. 10 (A/56/10), p. 166, para. 2 of the commentary on Article 18.
8Ibid. - 9 -
It would still be necessary for Uruguay to prove that the rights said to be “in dispute”, at issue for
it, were being irreparably harmed.
21. And yet, apart from a few half-hearted references, our opponents have remained
strangely discreet both as to whether it is possible and as to its substance. It is most interesting in
this connection to observe how ProfessorBoyle evaded the problem in his pleadings: after
asserting that such harm was imminent, he tuned immediately to very general considerations
concerning the sovereign rights of Uruguay to sust ainable development and to the exploitation of
its own natural resources in accordance with its own environmental policies ( ses ressources
9
naturelles conformément à ses propres politiques environnementales ) . I pass over the fact that
what is at issue is not the right of Uruguay alone, but of both Parties, to a sustainable environment,
and that what is involved in not an exclusivel y Uruguayan natural resource but a natural resource
that is actually shared and, moreover, subject to common rules, particularly with regard to the
environment. Accordingly, this at best concer ns the substance of the case, but does not at all
indicate in what way the facts on which Uruguay re lies (even on its own interpretation) could be
analysed as an imminent threat of irreparable harm to the legal rights and interests that it is entitled
to assert in the case that Argentina has brought before the Court.
22. What, then, is the irreparable harm to the rights that Uruguay is asserting ⎯ and which, I
emphasize, are totally artificial in nature? The right to build the Orion plant? Assuming that this
16 right exists, we stated yesterday ⎯ and our opponents have not refuted it today ⎯ that the
blockades are not interfering with the construction of the plant in any way. They claim that it is by
“blackmail” that Argentina seeks to force Ur uguay to decide, unde r pressure, to halt the
10
construction work . If that were the case, nothing would prevent it from trying to obtain a
declaration from the Court that Argentina bears responsibility for this allegedly wrongful act ⎯ it
would be “sufficient” for this purpose to show that there was a breach of the 1975 Statute.
“Sufficient” is obviously a manner of speaking, because I am interested to know how it would go
about that. The fact remains that, if there were damage as a consequence of an internationally
wrongful act that would be perfectly “reparable”).
9
CR 2006/54, p. 49, para. 14. See also pp. 49-50, paras. 15-16.
10
CR 2006/56, p. 21, para. 9 (Condorelli). - 10 -
23. As regards the equally artificial alleged right to a judgment, it can obviously be infringed
only in the event of discontinuance (which would leave Uruguay’s rights on the merits intact); it
should also be stressed that, under Article89 of the Rules, discontinuance by the applicant is
possible only with the agreement of the respondent if the latter has taken some step in the
proceedings. And if this is any reassurance to our Uruguayan friends, Argentina is ready to
guarantee that, while waiting for their Counter-m emorial, it will not withdraw without their
agreement . . .
24. Madam President, all that I have just said greatly resembles reasoning ab absurdo. It is
quite simply absurd to think that the rights which Uruguay claims can be the subject of any harm
whatever and, a fortiori, of irreparable harm. I would add for good measure that those rights which
it says it cannot assert in the present case ⎯ freedom of transport and transit as part of Mercosur ⎯
fall within another legal framework and are not at issue.
C. The alleged “urgency”
25. Under these conditions it becomes almost surrealistic to wonder about the urgency of
preventing the alleged “irreparable injuries”. Just to be sure, I will nevertheless say a few words, in
the hope that I am not trying the patience of the Court.
26. First, to state that Argentina no longer has any difficulty in accepting that it is obviously
not necessary for injury to have occurred in orde r for urgency to be established and that the
17 imminence of irreparable injury might justify the indication of provisional measures. There would
still have to be imminence. And yet, Madam President, that is as impossible to find as the
irreparable injury to rights ⎯ also improbable ⎯ that have to be preserved.
27. Is Uruguay on the point of yielding to what it most unkindly describes as “blackmail” by
Argentina? It seems more determined than ever to complete the construction of the Orion plant.
Are those involved in the social movements in th e province of EntreRios prepared to flood onto
the Orion site to prevent the construction work? Obviously not, and the withdrawal the day before
yesterday of the troops that the Uruguayan Governme nt had sent to the site at the express and
urgent request of the Botnia management itself is enough to show that this was no more than a
“stage-managed” emergency. Is Uruguay economically stifled by the demonstrators’ action? Its - 11 -
development figures paint a rosy picture. Are its economic relations w ith Argentina adversely
affected? They show exponential growth. Is its tourist industry threatened? It is in very good
health. In addition, none of this has any c onnection with the case submitted to the Court by
Argentina.
28. The fact is, Madam President, that this is obviously the whole problem ⎯ Uruguay’s
whole problem! The Eastern Republic of Uruguay’s arguments in this case are basically “wide of
the mark”: it is attempting to submit to the C ourt, “incidentally”, a dispute which has no real
connection with the dispute with which it is pr operly seised on the basis of Article60 of the
1975 Statute. Consequently the rights that it claims are specious, and the allegedly imminent threat
of injury to those rights is utterly artificial.
29. As my last word I add, Madam President, Members of the Court, that even if you were
able to entertain this other dispute, which is cer tainly not the case, you would certainly not be able
to order provisional measures in respect of it: no right belonging to Uruguay (but what right?), no
right that Uruguay might hypothetically claim would call for urgent protection against very
doubtful injury, the “irreparability” of which is in any event not established.
30. Thank you, Madam President, for your patience, and I ask you to give the floor to the
Agent of the Argentine Republic.
18 Le PRESIDENT: Je vous remercie, M.K ohen. J’appelle maintenant à la barre
S. Exc. Mme Ruiz Cerutti, l’agent de l’Argentine.
Ms RUIZ CERUTTI: Madam President, Members of the Court, it is a great honour to make
the final oral statement of the Argentine Republic in connection with the request for the indication
of provisional measures submitted by Uruguay on 30 November last before this Court.
There are fiveelements at the heart of this incidental request by Uruguay, and I will deal
with them in a faithful manner.
Anyone with no knowledge of the case pending before the Court, and hearing the oral
arguments of the representatives of Uruguay these past two days, would be bound to gain the
impression that it is Uruguay that has seised the C ourt to defend what it calls its rights against - 12 -
assault by another country, and that Uruguay is the country ever open to a negotiated settlement of
the dispute.
Point one
On this first point, it should be recalled that:
⎯ it was Argentina that seised the Court, th ereby demonstrating its full confidence in
international justice;
⎯ it was Argentina that lodged a complaint in the case concerning Pulp Mills on the River
Uruguay, through an Application instituting procee dings filed on 4May 2006. Argentina
requests of the Court that its rights under the 1975 Statute of the River Uruguay be effectively
recognized and protected in the face of the gran ting by Uruguay of a unilateral authorization to
construct pulp mills and related facilities on the River Uruguay;
⎯ it was Argentina that invoked Article60 of the Statute in order to submit the procedural and
substantive rights and obligations deriving from the same Statute to the consideration and
decision of the Court;
⎯ it is Argentina that is aware of the urgent need for the Court to reach a decision as rapidly as
possible, and it was Argentina that requested th e Court to adhere to the shortest possible
time-limits for rendering its decision. Argentina has not availed itself of the Court’s generous
offer to delay the submission of its Memorial following the Uruguayan request for the
19 indication of provisional measures. We sha ll file our Memorial on 15January next, as
originally decided by the Court, despite the very heavy workload placed on it by the
simultaneous submission of these two written pleadings.
Point two
The request for the indication of provisional measures is on no way connected with the
Statute of the River Uruguay. It rests upon Article 60 as the basis for the Court’s jurisdiction, but
this clause is applicable only if substantive right s and obligations are involved. Uruguay has left
this point utterly obscure. - 13 -
Point three
Uruguay claims that the road blockades are causing it prejudice.
As Argentina has emphasized during its oral arguments, neither freedom of transport nor
freedom of commerce, nor tourism, is a right governed by the Statute of the River Uruguay.
On the basis of a ploy that has nothing legal about it, Uruguay seeks action by the Court on
the question it raises by trying to create an allege d link between the objectives of the inhabitants of
the city of Gualeguaychú who are blockading roads in Argentine territory and an alleged risk of a
halt to the construction of the Orion mill.
But the result is contrary to the assertions of Uruguay, as we showed in our oral arguments
yesterday: regarding the two mills called into question at the time of the filing of our Application
with the Court, in the case we submitted to it, both projects are going very well. ENCE plans to
relocate its mill and to double its investment and production, and all that in Uruguay. As to Botnia,
the Orion project is forging ahead unimpeded.
Point four
Uruguay claims that the road blockades in Arge ntine territory have adversely affected trade
and tourism between the two countries.
20 I pointed out yesterday that, with respect to trade and tourism between the two countries, the
overall figures for the specific period corresponding to the blockades, that is, from November 2005,
point to fairly substantial growth.
Uruguay has disputed these figures and the conc lusions we drew from them. In support of
the information provided by Argentina, I invite the Court to consult the most recent data,
concerning 2006, of ECLAC (Economic Commissi on for Latin America and the Caribbean) and
the Montevideo-based ALADI (Latin American Integr ation Association). They fully bear out the
bilateral trade growth figures mentioned by Argentin a, and also record an annual GDP growth rate
of 7 per cent for Uruguay in 2006.
I also invite the Court to consult the website of the Presidency of the Eastern Republic of
Uruguay, where one can read for 15December last — that is, last Friday — information supplied
by the President of Uruguay himself, who states that his country’s economy is in very good shape. - 14 -
All this is clear evidence that the alleged st rangulation of Uruguay’s economy has simply not
happened.
Hence it cannot seriously be claimed, as we heard in the oral arguments of Uruguay, that the
road blockades have had “adverse effects” both on Uruguay’s economy and on the construction of
the mills. There has been no prejudice and there is no “new trend” which might lead to a prejudice.
There is no escalation. There is no total blockade of Uruguay. There is no economic strangulation
of Uruguay as a result of the blockades. None of the Uruguayan assertions is true.
That being said, it must once more be recalle d that the road blockades and the construction
of the mill are two quite different matters, and that the rights protected by the 1975Statute
permitting the seisin of the Court are very different from the right of transit via roads on Argentine
territory. This is unrelated to the rules of the 1975 Statute and hence unrelated to the Court’s
jurisdiction.
Point five
As I have already noted, the road blockades in Argentina are not a new phenomenon either
for my country or for Uruguay. We recalled yesterday the seisin by Uruguay of the Mercosur
21 dispute settlement system through an ad hoc arbitral tribunal, for exac tly the same facts as those
invoked by Uruguay in its request for the indication of provisional measures.
We also recalled that the ad hoc Tribunal gave its decision on 6September last. And the
matter is still under consideration in the framework of the Olivos Protocol.
Uruguay cannot embark every three months on a new jurisdictional path, as it is today doing
before the Court, to obtain a fresh decision on these same facts already ruled on by the Mercosur
ad hoc Tribunal.
In short, Madam President, last June Uruguay referred to an ad hoc tribunal in the
framework of Mercosur the same facts as those forming the substance of its request before the
Court. In an effort to convince the latter that something else was at issue, counsel for Uruguay
affirmed that the aims pursued by the demonstrators in November or December differed from those
of last January or February. This is quite simp ly not true. If there is one thing with which the
members of the Gualeguaychú Assembly can be credited, it is certainly perseverance. From the - 15 -
outset, they campaigned against the siting of th e CNB and Orion mills on the bank of the river
opposite that on which they live; they continue to campaign against the construction of Orion.
They are constantly tempted to draw the attention of both governments (and not just the Uruguayan
Government) to their positions. They have constantly acted by various means including ⎯ but not
exclusively ⎯ the blocking of roads. And it was those fact s, the totality of those facts, that were
submitted to the Mercusor ad hoc Tribunal and on which it has ruled.
Finally, one aspect that the Argentine Republic must reject most vigorously is the assertion
of Uruguay before the Court that the Argentine G overnment has encouraged the blockades in the
Gualeguaychú area. I must likewise reject the inadmissible accusations of blackmail that we heard
this morning from counsel for Uruguay.
The President of Argentina, Mr.NéstorKirc hner, has clearly established our Government’s
position regarding the road blockades forming the basis of the request of Uruguay for the indication
of provisional measures. This is what he actually said: “I am not in agreement with the road
blockades... if some think that our brothers of Gualeguaychú should be punished... I do not
22 intend to do that . . .” That is the truth: our Head of State disapproves of the blockades; he refuses
to make them a punishable offence. The Argen tine authorities seek to act, as they do throughout
our country, by means of an active policy of pers uasion, and not through repression, to discourage
this type of social movement.
Furthermore, with respect to the allega tions made by Uruguay on the facilitation mission
conducted by His Majesty the King of Spain, I wish to observe that Argentina is not only fully in
agreement with this mission, for which it expresses its heartfelt thanks, but that it was Argentina
that requested His Majesty to fulfil this role. As is common knowledge ⎯ I remind you of the
occasion: early November saw the holding of the Ibero-American Summit of Heads of State and
Government, in Montevideo as it happens , Uruguay being the seat of the Summit ⎯ the King of
Spain was in Montevideo and President Kirchner asked him to try to carry out a facilitation mission
with a view to a negotiated settlement of our disput e. He did the same thing early in the year, on
1March to be precise, when at the opening of Parliament in Argentina ⎯ the annual opening of
our congress ⎯ he publicly invited the Uruguayan Preside nt to conduct direct negotiation on the - 16 -
Pulp Mills case. As is also publicly known, Uruguay e nded that negotiation in April 2006. It was
at that point that Argentina decided to seise the Court, on 4 May last.
In conclusion, Madam President, Members of the Court, from the Uruguayan request it is
clear that the Court lacks jurisdiction on the basi s of Article 60 of the Statute of the River Uruguay
to rule on the provisional measures requested by Uruguay.
Uruguay’s request is also inadmissible on account of its being unrelated to the case
concerning Pulp Mills on the River Uruguay filed by Argentina on the basis of the violation by
Uruguay of the rules of the 1975 Statue.
Nor is the Uruguayan request related to the me rits of the dispute submitted by Argentina to
your distinguished Court.
The Argentine Republic therefore requests the C ourt to declare that it has no jurisdiction to
entertain the request or to declare it inadmissible.
23 Before ending completely, Madam President, I just wish to thank the Registrar and the
Registry staff, and in particular the interpreters, for their valuable assistance and to thank you,
Members of the Court, for your attention. Thank you very much.
Le PRESIDENT: Je vous remercie, Excellence. Ceci nous amène à la fin de cette série
d’audiences.
Il me reste à adresser des remerciements a ux représentants des deux Parties pour l'assistance
qu'ils ont apportée à la Cour par leurs observations orales au cours de ces quatre audiences.
Je leur souhaite un bon retour da ns leurs pays respectifs et, c onformément à la pratique, je
prierai les agents de bien vouloir rester à la dis position de la Cour. Sous cette réserve, je déclare
close la présente procédure orale.
La Cour rendra son ordonnance sur la demande en indication de mesures conservatoires dès
que possible. Les agents des Parties seront avisés en temps utile de la date à laquelle la Cour
rendra son ordonnance en audience publique.
La Cour n’étant saisie d’aucune autre question aujourd’hui, la séance est levée. La Cour va à
présent se retirer.
L’audience est levée à 17 h 30. - 17 -
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Translation