Non-Corrigé
Uncorrected
CR 2009/16
Cour internationale International Court
de Justice of Justice
LAAYE THHEGUE
ANNÉE 2009
Audience publique
tenue le lundi 21 septembre 2009, à 10 heures, au Palais de la Paix,
sous la présidence de M. Tomka, vice-président,
faisant fonction de président
en l’affaire relative à des Usines de pâte à papier sur le fleuve Uruguay
(Argentine c. Uruguay)
________________
COMPTE RENDU
________________
YEAR 2009
Public sitting
held on Monday 21 September 2009, at 10 a.m., at the Peace Palace,
Vice-President Tomka, Acting President, presiding,
in the case concerning Pulp Mills on the River Uruguay
(Argentina v. Uruguay)
____________________
VERBATIM RECORD
____________________ - 2 -
Présents : M. Tomka, vice-président, faisant fonction de président en l’affaire
KoMroMa.
Al-Khasawneh
Buergenthal
Simma
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skotnikov
Crinçade
Yusuf
Grejugesood,
BeTroresz.
juiesesa, ad hoc
Mme de Saint Phalle, greffier adjoint
⎯⎯⎯⎯⎯⎯ - 3 -
Present: Vice-President Tomka, Acting President
Judges Koroma
Al-Khasawneh
Buergenthal
Simma
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Judges ad hoc TorresBernárdez
Vinuesa
Deputy-Registrar de Saint Phalle
⎯⎯⎯⎯⎯⎯ - 4 -
Le Gouvernement de la République argentine est représenté par :
S. Exc. Mme Susana Ruiz Cerutti, ambassadeur, conseiller juridique du ministère des relations
extérieures, du commerce international et du culte,
comme agent ;
S. Exc. M. Horacio A. Basabe, ambassadeur, directeur général de l’Institut du service extérieur de
la nation, ancien conseiller juridique du ministère des relations extérieures, du commerce
international et du culte, membre de la Cour permanente d’arbitrage,
S. Exc. M. Santos Goñi Marenco, ambassadeur de la République argentine auprès du Royaume des
Pays-Bas,
comme coagents ;
M.AlainPellet, professeur à l’Université Paris Ouest, Nanterre-La Défense, membre et ancien
président de la Commission du droit internatio nal, membre associé de l’Institut de droit
international,
M. Philippe Sands QC, professeur de droit internatio nal au University College de Londres, avocat,
Matrix Chambers, Londres,
M. Marcelo Kohen, professeur de droit internationa l à l’Institut de hautes études internationales et
du développement, Genève, membre associé de l’Institut de droit international,
Mme Laurence Boisson de Chazournes, professeur de droit international à l’Université de Genève,
M. Alan Béraud, ministre à l’ambassade de la République argentine auprès de l’Union européenne,
ancien conseiller juridique du ministère des affaires étrangères, du commerce international et du
culte,
M.DanielMüller, chercheur au Centre de droit in ternational de Nanterre (CEDIN), Université de
Paris Ouest, Nanterre-La Défense,
comme conseils et avocats ;
M. Homero Bibiloni, secrétaire d’Etat à l’environnement et au développement durable,
comme autorité gouvernementale ;
M. Esteban Lyons, directeur national du contrôle environnemental du secrétariat à l’environnement
et au développement durable,
M.HowardWheater, docteur en hydrologie de l’ Université de Bristol, professeur d’hydrologie à
l’Imperial College, directeur de l’Imperial College Environment Forum,
M. Juan Carlos Colombo, docteur en océanographie de l’Université de Québec, professeur à la
faculté des sciences et au musée de l’Université de La Plata, directeur du Laboratoire de chimie
environnementale et de biogéochimie de l’Université de La Plata,
M.NeilMcIntyre, docteur en ingénierie envir onnementale, maître de conférences à l’Imperial
College, Londres, - 5 -
The Government of the Republicof Argentina is represented by:
H.E. Ms Susana Ruiz Cerutti, Ambassador, Legal Adviser to the Ministry of Foreign Affairs,
International Trade and Worship,
as Agent;
H.E. Mr. Horacio A. Basabe, Ambassador, Director of the Argentine Institute for Foreign Service,
former Legal Adviser to the Ministry of Fore ign Affairs, International Trade and Worship,
Member of the Permanent Court of Arbitration,
H.E. Mr. Santos Goñi Marenco, Ambassador of the Argentine Republic to the Kingdom of the
Netherlands,
as Co-Agents;
Mr.AlainPellet, Professor at the University of Paris Ouest, Nanterre-La Défense, member and
former Chairman of the International Law Co mmission, associate member of the Institut de
droit international,
Mr. Philippe Sands QC, Professor of International Law at the University College London, Barrister
at Matrix Chambers, London,
Mr.MarceloKohen, Professor of International Law at the Graduate Institute of International and
Development Studies, Geneva, associate member of the Institut de droit international,
Ms Laurence Boisson de Chazournes, Professor of International Law at the University of Geneva,
Mr.AlanBéraud, Minister at the Embassy of the Argentine Republic to the European Union,
former Legal Adviser to the Ministry of Foreign Affairs, International Trade and Worship,
Mr. Daniel Müller, Researcher at the Centre de droit international de Nanterre (CEDIN), University
of Paris Ouest, Nanterre-La Défense,
as Counsel and Advocates;
Mr. Homero Bibiloni, Federal Secretary of Environment and Sustainable Development,
as Governmental Authority;
Mr.EstebanLyons, National Director of Environm ental Control, Secretariat of Environment and
Sustainable Development,
Mr. Howard Wheater, PhD in Hydrology at Bristol University, Professor of Hydrology at Imperial
College and Director of the Imperial College Environment Forum,
Mr. Juan Carlos Colombo, PhD in Oceanography at the University of Québec, Professor at the
Faculty of Sciences and Museum of the National University of La Plata, Director of the
Laboratory of Environmental Ch emistry and Biogeochemistry at the National University of
La Plata,
Mr.NeilMcIntyre, PhD in Environmental Engineering, Senior Lecturer in Hydrology at Imperial
College London, - 6 -
Mme Inés Camilloni, docteur en sciences atmosphériques, professeur de sciences atmosphériques à
la faculté des sciences de l’Université de Buenos Aires, maître de recherche au conseil national
de recherche (CONICET),
M.GabrielRaggio, docteur en sciences techni ques de l’Ecole polytechnique fédérale de
Zürich (ETHZ) (Suisse), consultant indépendant,
comme conseils et experts scientifiques ;
M.HolgerMartinsen, ministre au bureau du conseiller juridique du ministère des affaires
étrangères, du commerce international et du culte,
M. Mario Oyarzábal, conseiller d’ambassade, bureau du conseiller juridique du ministère des
affaires étrangères, du commerce international et du culte,
M.FernandoMarani, secrétaire d’ambassade, amb assade de la République argentine au Royaume
des Pays-Bas,
M.GabrielHerrera, secrétaire d’ambassade, bureau du conseiller juridique du ministère des
affaires étrangères, du commerce international et du culte,
MmeCynthiaMulville, secrétaire d’ambassade, bureau du conseiller juridique du ministère des
affaires étrangères, du commerce international et du culte,
Mme Kate Cook, avocat, Matrix Chambers, Londres, spécialisée en droit de l’environnement et en
droit du développement,
Mme Mara Tignino, docteur en droit, chercheur à l’Université de Genève,
M.MagnusJeskoLanger, assistant d’enseignement et de recherche, Institut de hautes études
internationales et du développement, Genève,
comme conseillers juridiques.
Le Gouvernement de l’Uruguay est représenté par :
S. Exc. M. Carlos Gianelli, ambassadeur de la République orientale de l’Uruguay auprès des
Etats-Unis d’Amérique,
comme agent ;
S. Exc. M. Carlos Mora Medero, ambassadeur de la République orientale de l’Uruguay auprès du
Royaume des Pays-Bas,
comme coagent ;
M.AlanBoyle, professeur de droit international à l’Université d’Edimbourg, membre du barreau
d’Angleterre,
M. Luigi Condorelli, professeur à la faculté de droit de l’Université de Florence,
M.LawrenceH.Martin, cabinet Foley Hoag LLP, membre du barreau de la Cour suprême des
Etats-Unis d’Amérique, du barreau du district de Columbia et du barreau du Commonwealth du
Massachusetts, - 7 -
MsInésCamilloni, PhD in Atmospheric Sciences, Professor of Atmospheric Sciences at the
Faculty of Sciences of the University of Bue nos Aires, Senior Researcher at the National
Research Council (CONICET),
Mr.GabrielRaggio, Doctor in Technical Scienc es of the Swiss Federal Institute of Technology
Zurich (ETHZ) (Switzerland), Independent Consultant,
as Scientific Advisers and Experts;
Mr.HolgerMartinsen, Minister at the Office of the Legal Adviser, Ministry of Foreign Affairs,
International Trade and Worship,
Mr.MarioOyarzábal, Embassy Counsellor, Office of the Legal Adviser, Ministry of Foreign
Affairs, International Trade and Worship,
Mr. Fernando Marani, Embassy Secretary, Embassy of the Argentine Republic in the Kingdom of
the Netherlands,
Mr. Gabriel Herrera, Embassy Secretary, Office of the Legal Adviser, Ministry of Foreign Affairs,
International Trade and Worship,
Ms Cynthia Mulville, Embassy Secretary, Office of the Legal Adviser, Ministry of Foreign Affairs,
International Trade and Worship,
MsKateCook, Barrister at Matrix Chambers, London, specializing in environmental law and law
relating to development,
Ms Mara Tignino, PhD in Law, Researcher at the University of Geneva,
Mr.MagnusJesko Langer, teaching and research assistant, Graduate Institute of International and
Development Studies, Geneva,
as Legal Advisers.
The Government of Uruguay is represented by:
H.E. Mr. Carlos Gianelli, Ambassador of the Eastern Republic of Uruguay to the United States of
America,
as Agent;
H.E. Mr. Carlos Mora Medero, Ambassador of the Eastern Republic of Uruguay to the Kingdom of
the Netherlands,
as Co-Agent;
Mr.AlanBoyle, Professor of International Law at the University of Edinburgh, Member of the
English Bar,
Mr. Luigi Condorelli, Professor at the Faculty of Law, University of Florence,
Mr. Lawrence H. Martin, Foley Hoag LLP, Member of the Bars of the United States Supreme
Court, the District of Columbia and the Commonwealth of Massachusetts, - 8 -
M. Stephen C. McCaffrey, professeur à la McGeorge School of Law de l’Université du Pacifique,
Californie, ancien président de la Commission du droit international et rapporteur spécial aux
fins des travaux de la Commission relatifs aux cours d’eau internationaux,
M. Alberto Pérez Pérez, professeur à la faculté de droit de l’Université de la République,
Montevideo,
M.PaulS.Reichler, cabinet Foley Hoag LLP, membre du barreau de la Cour suprême des
Etats-Unis d’Amérique et du barreau du district de Columbia,
comme conseils et avocats ;
M. Marcelo Cousillas, conseiller juridique à la direction nationale de l’environnement, ministère du
logement, de l’aménagement du territoire et de l’environnement de la République orientale de
l’Uruguay,
M. César Rodriguez Zavalla, chef de cabinet au ministère des affaires étrangères de la République
orientale de l’Uruguay,
M.CarlosMata, directeur adjoint des affaires juri diques au ministère des affaires étrangères de la
République orientale de l’Uruguay,
M. Marcelo Gerona, conseiller à l’ambassade de la République orientale de l’Uruguay au Royaume
des Pays-Bas,
M. Eduardo Jiménez de Aréchaga, avocat, admis au barreau de la République orientale de
l’Uruguay et membre du barreau de New York,
MA. damKahn, cabinet Foley Hoag LLP, membre du barreau du Commonwealth du
Massachusetts,
M.AndrewLoewenstein, cabinet Foley Hoag LLP, membre du barreau du Commonwealth du
Massachusetts,
MmeAnaliaGonzalez, LLM, cabinet Foley Hoag LLP, admise au barreau de la République
orientale de l’Uruguay,
Mme Clara E. Brillembourg, cabinet Foley Hoag LLP, membre des barreaux des districts de
Columbia et de New York,
MmeCicelyParseghian, cabinet Foley Hoag LLP, membre du barreau du Commonwealth du
Massachusetts,
M. Pierre Harcourt, doctorant à l’Université d’Edimbourg,
M. Paolo Palchetti, professeur associé à la faculté de droit de l’Université de Macerata,
comme conseils adjoints ;
Mme Alicia Torres, directrice nationale de l’environneme nt au ministère du logement, de
l’aménagement du territoire etde l’environnement de la République orientale de l’Uruguay,
M.EugenioLorenzo, conseiller technique à la direction de l’envir onnement du ministère du
logement, de l’aménagement du territoir e et de l’environnement de la Ré publique orientale de
l’Uruguay, - 9 -
Mr.StephenC.McCaffrey, Professor at the McGeorge School of Law, University of the Pacific,
California, former Chairman of the Interna tional Law Commission and Special Rapporteur for
the Commission’s work on international watercourses,
Mr.AlbertoPérezPérez, Professor at the Faculty of Law of the University of the Republic,
Montevideo,
Mr.PaulS.Reichler, Foley Hoag LLP, Member of the Bars of the United States Supreme Court
and the District of Columbia,
as Counsel and Advocates;
Mr. Marcelo Cousillas, Legal Counsel at the Nationa l Directorate for the Environment, Ministry of
Housing, Territorial Planning and Environment of the Eastern Republic of Uruguay,
Mr.CésarRodriguezZavalla, Chief of Cabinet, Ministry of Foreign Affairs of the Eastern
Republic of Uruguay,
Mr.CarlosMata, Deputy Director of Legal Affair s, Ministry of Foreign Affairs of the Eastern
Republic of Uruguay,
Mr.MarceloGerona, Counsellor of the Embassy of the Eastern Republic of Uruguay in the
Kingdom of the Netherlands,
Mr. Eduardo Jiménez de Aréchaga, Attorney at law, admitted to the Bar of the Eastern Republic of
Uruguay and Member of the Bar of New York,
Mr. Adam Kahn, Foley Hoag LLP, Member of the Bar of the Commonwealth of Massachusetts,
Mr.AndrewLoewenstein, Foley Hoag LLP, Member of the Bar of the Commonwealth of
Massachusetts,
MsAnaliaGonzalez, LLM, Foley Hoag LLP, adm itted to the Bar of the Eastern Republic of
Uruguay,
MsClaraE. Brillembourg, Foley Hoag LLP, Member of the Bars of the District of Columbia and
New York,
MsCicelyParseghian, Foley Hoag LLP, Me mber of the Bar of the Commonwealth of
Massachusetts,
Mr. Pierre Harcourt, PhD Candidate, University of Edinburgh,
Mr. Paolo Palchetti, Associate Professor at the School of Law, University of Macerata,
as Assistant Counsel;
Ms Alicia Torres, National Director for the Environment at the Ministry of Housing, Territorial
Planning and Environment of the Eastern Republic of Uruguay,
Mr.EugenioLorenzo, Technical Consultant for the National Directorate for the Environment,
Ministry of Housing, TerritorialPlanning and Environment ofthe Eastern Republic of Uruguay, - 10 -
M.CyroCroce, conseiller technique à la direction de l’environnement du ministère du logement, de
l’aménagement du territoire etde l’environnement de la République orientale de l’Uruguay,
Mme Raquel Piaggio, bureau de la gestion des eaux (O.S.E.), consultante technique à la direction de
l’environnement du ministère du logement, de l’aménagement du territoire et de l’environnement
de la République orientale de l’Uruguay,
M.CharlesA.Menzie, PhD., Principal Scientist et directeur d’EcoSciences Practice chez Exponent,
Inc., à Alexandria, Virginie,
st
M. Neil McCubbin, Eng., Bsc. (Eng), 1 Class Honours, Glasgow, Associate of the Royal College of
Science and Technology, Glasgow,
comme conseillers scientifiques et experts. - 11 -
Mr. Cyro Croce, Technical Consultant for the National Directorate for the Environment, Ministry of
Housing, Territorial Planning and Enviro nment of the Eastern Republic of Uruguay,
Ms Raquel Piaggio, Water Management Administration ⎯ O.S.E. ⎯ Technical Cons ultant for the
National Directorate for the Environment, Mini stry of Housing, Territorial Planning and
Environment of the Eastern Republic of Uruguay,
Mr. Charles A. Menzie, PhD., Principal Scientist and Director of the EcoSciences Practice at
Exponent, Inc., Alexandria, Virginia,
Mr. Neil McCubbin, Eng., BSc. (Eng), 1st Class Honours, Glasgow, Associate of the Royal College
of Science and Technology, Glasgow,
as Scientific Advisers and Experts. - 12 -
Le VICE-PRESIDENT, faisant fonction de président : Veuillez vous asseoir. L’audience est
ouverte. La Cour se réunit aujourd’hui pour en tendre le premier tour de plaidoiries de la
République orientale de l’Uruguay. Celle-ci achèvera son premier tour de plaidoiries à la séance
qui se tiendra le jeudi 24 septembre entre 10 heures et 13 heures. I shall now give the floor to His
Excellency Ambassador Carlos Gianelli, Agent of Uruguay to make his introductory statement.
You have the floor, Sir.
GMIr.NELLI:
I.INTRODUCTION
1. Mr.President and Members of the Court, it is an honour for me to appear before this
distinguished tribunal, and a great privilege to act as the Agent of Uruguay in these proceedings.
2. I want to begin by expressing, on behalf of our delegation, the grief at the absence of our
principal Agent, whose unexpected health problems forced him to remain in Montevideo. I also
extend my appreciation to my counterpart, Ambas sador Ruiz Cerutti, for her expression of concern
for Ambassador Gros Espiell, and assure her that her best wishes have been conveyed to him.
3. Mr.President, this is a sad episode in the historically close relations between Argentina
and Uruguay. We regret that our two friendly countries now confront each other in a way that
neither Uruguayans nor Argentinians could have ev er imagined. But today, the sadness I and all
Uruguayans feel is compounded by the excessive la nguage that Argentina used throughout last
week’s presentations, in which it portrayed Uruguay as nothing short of an international outlaw.
Nevertheless, Uruguay is pleased to have this opportunity to respond fully and openly to
Argentina’s unsupported case against us. As the distinguished counsel and advocates who follow
me to the podium will demonstrate, based on th e evidence and the law as they truly are, Uruguay
did not and has not violated the 1975 Statute on the River Uruguay in any respect.
II.INTERNATIONAL CO -OPERATION AND GOOD NEIGHBORLINESS
4. Mr. President, Members of the Court, Argentina has tried to portray our country as wholly
indifferent to the 1975Statute. It was said that Uruguay “behaves as if the 1975Statute does not
exist”. In fact, Uruguay attaches tremendous impor tance to the Statute, not least because it is - 13 -
instrumental in helping to protect us in our relationship with our much bigger and more
economically developed neighbour.
5. Because of its much larger territory, population, agriculture and industry, it is
Argentina ⎯ not Uruguay ⎯ that makes by far the greatest use of the Uruguay river with its
related environmental consequences. The 1975 Statute is sacred to Uruguay because it guarantees
our country its right to be protected from po llution and harmful environmental effects by
Argentina, as well as its right to the equitable utilization of the river.
6. In reviewing the transcripts of last week ’s proceedings, I was struck by the gap between
the facts and the way in which Argentina tried to portray them to the Court. After hearing so very
many words from Argentina, I hope the Court will find it useful to examine the actual evidence.
7. In its presentations last Thursday (CR 2009/ 15), Argentina not so subtly suggested to the
Court that unless it takes strong action against the Botnia plant, it will be responsible for setting the
cause of international environmental law back deca des. Argentina has offered the Court a false
choice, Mr. President. I say that not just because Ur uguay thinks it is right. I say that because the
evidence tells us that. One of th e remarkable features of this case is that, in the end, you do not
need to choose between what Uruguay says and what Argentina says.
8. The present case differs from the great majority of cases before this Court, where the
parties base their allegations on evidentiary materi als that they have prepared especially for the
case. In this one, you have before you multiple re ports prepared by the independent environmental
consultants engaged by the Inte rnational Finance Corporation of the World Bank that clearly
establish that the Botnia mill is operating to the hi ghest international standards in all respects, and
that it is not polluting the Uruguay river.
9. The reports to which I refer are also a complete answer to Argentina’s heavy-handed
attempts to suggest that the Botnia plant could not have been built in Europe, in North America, or
in other developed countries. As those reports make clear, it could have been. The plant we are
here talking about is as good as the best mills in Europe. No qualifications. If Argentina is
wondering why the plant was built in Uruguay, perhaps it needs only recall that a eucalyptus tree
grows at least three times faster in our region than it does in Europe. - 14 -
10. Mr.President, Argentina’s decision in early 2006 to suspend all monitoring of water
quality contradicts the general principles of co-operation and good neighbourliness and the
provisions of the 1975 Statute, as recognized by this Court in its July 2006 Order. Instead of going
through CARU to monitor the river as the Statute provides, we learned for the first time on 30 June
this year that Argentina spent two years secretly conducting its own unilateral study.
III. EVIDENCE PRESENTED BY A RGENTINA
11. Mr. President, last week you heard a lot about the phenomenon of reverse flow. You
heard over and over again how much it happens, a nd more particularly that Uruguay supposedly
never took account of it or consulte d with Argentina about it. Mr.President, such allegations are
totally unfounded. The fact is, and the eviden ce shows, that Uruguay did take into account the
hydrodynamic characteristics of the river, including reverse flow episodes. It also incorporated that
fact into its modelling of the dispersal of Botnia ’s effluents. And it shared that modelling with
Argentina at the high level technical group (GTAN) consultations that took place in
November 2005, four years ago, and was accepted. That is what the eviden ce in the record, some
of it from Argentina no less, actually tells us. The truth is that Uruguay understood this issue
perfectly, explained it fully to Argentina in 2005, and it got it right.
12. You heard much the same thing about wind. Counsel for Argentina told you that
Uruguay again either misunderstood or failed to in form itself about the basic wind dynamics in the
region, and failed to consult on the matter with Argentina. Here, too, Argentina’s argument goes in
the opposite direction from the evidence. In the days to come, Uruguay’s counsel will show that
not only did Uruguay consider the wind issue, it got it right and shared its views with Argentina
long before the Botnia plant was ever built.
13. As much as you heard last week from Ar gentina’s counsel, one thing you did not hear
much about was the water quality standards adopt ed by both countries in CARU. These are the
water quality standards Argentina and Uruguay have pr omised each other to meet. They are thus
the law between the Parties on this issue. In a case on environmental pollution, one might
reasonably expect to hear what the applicable standards have to say. You did not, and the reason is - 15 -
simple: the Botnia plant has not caused any exceed ing of the CARU water quality standards in the
22 months it has been operating.
14. Instead, Mr.President, we heard many times that there was an “unprecedented” algal
bloom in February2009 allegedly caused by the pl ant, that there were nonylphenols and lindane,
and dioxins and furans among other substances. Once again, Argentina has its facts wrong, and
demonstrably so. The algal bloom was not caused by the Botnia mill. In fact, algal blooms are
common during the summer months, and this one appears to have started well upstream from the
plant beyond what even Argentina claims is Botnia’s reach, from where it was transported
downstream and washed away into the ocean.
15. With respect to dioxins and furans, their levels are so low that they are beyond the ability
of modern technology to detect. Although perhap s these substances were once an issue with pulp
mills in eras past, it is not the case of this high technology mill. Argentina has not found any in the
water of the river, only in sediments from ÑandubaysalBay, which Argentina acknowledges is
unaffected by effluents from Botnia.
16. The answer on nonylphenols and lindane is ev en simpler. Botnia does not use either in
any part of its processes. Lindane has been ba nned in Uruguay for many years. However, in
Argentina, both are still widely used in agriculture ⎯ in the case of lindane ⎯ and agriculture and
industry ⎯ in the case of nonylphenols. So, Mr. President, therefore their source is Argentina, not
Botnia.
17. The construction and operation of the Botn ia pulp mill is fully consistent with all
applicable environmental laws a nd regulations, as the results of a comprehensive monitoring plan
will evidence to the Court this week. In addition, those results confirm the predictions made by the
environmental impact assessment under DINAMA’s direction, before even a preliminary
environmental authorization was issued. It is for these reasons that the choice between the
protection of the environment and the maintenance of the operations of the Botnia plant is a false
one. - 16 -
IV. P ROCEDURAL COMPLIANCE
18. Mr.President, in addition to arguing that Uruguay had entirely disregarded its
obligations to protect and preserve the environment, Argentina also spent a lot of time last week
arguing that Uruguay breached its procedural obligations under the Statute. Mr.President,
Uruguay did not.
19. I must say that I was greatly surprised by Argentina’s assertion that Uruguay never
shared information with or consulted with it. In fact, Uruguay provided a massive amount of
information about the plants and the receptor enviro nment to Argentina, not only before the Botnia
plant started operating, but before serious cons truction activities even began. Mr.President, I
cannot resist asking Argentina:if not consulti ng, what is it that its officials were doing for
sixmonths in 2005 and 2006 when they met 12ti mes with Uruguayan counterparts to exchange
information and views under the auspices of GTAN?
V. E XTRAJUDICIAL COERCIVE MEASURES
20. As the Court is aware, a group of Argentine citizens has been blockading the main
international transit route between Argentina and Uruguay, the GeneralSanMartinBridge, since
this case began more than three years ago. Th ese blockades, which have been openly tolerated by
the Government of Argentina and have caused hundreds of millions of dollars in economic harm to
Uruguay, constitute an attempt to force Uruguay to stop activities at the Botnia plant. This was the
subject of Uruguay’s provisional measures request in December 2006. At that time, the award of
an ad hoc Mercosur Arbitration Tribunal had already est ablished that Argentina’s tolerance for the
1
blockades violated its duties under the Treaty of Asunción .
21. Nonetheless, the blockade continues to this day. Argentina, in open defiance of the
Mercosur tribunal, in disregard of the principle of good neighbourliness, and in contravention of
other principles of international law, continues to to lerate it. For example, recently, the Senate of
Arbitral award of ad hoc tribunal of Mercosur, constituted to hear the dispute submitted by the Oriental Republic
of Uruguay versus the Argentine Republic on “Omission ofArgentine State to adopt su itable measures to prevent
and/or eliminate the impediments to free circulation stemming from the blocking of the access roads to international
bridges Gral. San Martín and Gral. Artigas in Argentine territory, which connect the Argentine Republic with the Oriental
Republic of Uruguay, 6Sep.2006, IVDecision, No.2 in Annex2 of provisional measures submitted by Uruguay,
N0o2v0.06 and also available at http://www.mercosur.org.uy/innovaportal/innovaportal.GetHTTPFile/
Laudo%20de%20Cortes%20de%20Ruta%20-%20ES.pdf?contentid=375&version=1&filename=
Laudo%20de%20Cortes%20de%20Ruta%20-%20ES.pdf (last visited 1 Sep. 2009). - 17 -
EntreRíos unanimously currently passed a bill declaring them an “historical and cultural
landmark”.
22. Mr. President, most probably, the long and rich history of this Court does not record any
case where a litigant country has allowed its provincial government, allied to a group of citizens, to
exercise extrajudicial measures to attempt to co erce the other party regarding the issues being
litigated before the Court. Uruguay will never allo w itself to be coerced in this manner, or to
abandon the defence of its right to sustainable development guaranteed by the 1975Statute.
Ultimately, these illegal measures, from the beginning of this proceeding, have served only to
exacerbate the dispute between the two countries. Uruguay submits that Argentina’s tolerance to
this matter cannot be reconciled with the Court’ s Order of 13July2006, in which “the Court
further encourages both Parties to refrain from an y actions which might render more difficult the
resolution of the present dispute” ( Pulp Mills on the River Uruguay (Argentina v. Uruguay),
Provisional Measures, Order of 13 July 2006, I.C.J. Reports 2006, p. 134, para. 82).
23. Mr. President, following me to the podium today will be Professor Alan Boyle who will
show that the Botnia plant has not caused any harm to the Uruguay river or its aquatic life since it
began operating in November 2007.
24. Mr. President, I now invite you to call Professor Boyle to the podium. Thank you very
much.
The VICE-PRESIDENT, Acting President: Thank you, HE isxcellency
Ambassador Gianelli, for your statement. I shall now give the floor to Professor Alan Boyle. You
have the floor, Sir.
BMOr. LE:
I.T HE PERFORMANCE OF THE PLANT
1. Mr. President, Members of the Court, it is an honour and a privilege to appear before you
once more on behalf of the Oriental Republic of Uruguay. My task this morning is straightforward:
to set out the evidence that sustains Uruguay’s case on environmental protection and to show that
the Botnia plant has lived up to the commitmen ts which Uruguay made under the 1975 Statute and - 18 -
under its own Constitution. Despite what you were told by Professor Sands last week ⎯ and I pay
tribute to his powerful and determined advocacy ⎯ Argentina’s case is just as weak today as it was
in 2006.
2. The evidence you will hear this week show s that the Botnia pulp mill has exceeded the
high expectations of Uruguay and of the Interna tional Finance Corporation. It has caused no
harmful pollution of the river as defined by the Stat ute. It has not put at risk the ecology or
ecosystem of the river. It meets European technology ⎯ BAT ⎯ standards for pulp mills. It
meets the World Bank’s environmental and social responsibility standards. It complies in every
respect with the water quality and environmental protection standards agreed by both Parties and
set out in the CARU Digest ⎯ and it is truly remarkable that nowhere in Argentina’s presentation
last week was there any reference to those regula tions, no allegation that they have been broken.
The Botnia plant has met these strict standards and it has done so because Uruguay has required it
to do so. In sum, it is the right mill, in the ri ght place, on a river that is more than capable of
sustaining this type of economic development. Its exemplary performance is entirely consistent
with the environmental requirements of the 1975St atute of the River Uruguay, and with all other
applicable international standards. Put simply, Argentina has no case.
3. The Court heard a great deal last week about pollutants, some of them irrelevant to this
case. It heard almost nothing about water quality, or how good it remains, even after the mill has
started to operate. Uruguay’s evidence on this point will be explained in more detail this morning,
2
but the key points are summarized at page ES(iii) of the Third EcoMetrix Report and you will
find this summary at tab 3 in your folder. EcoMetrix is a Canadian environmental engineering and
consulting firm appointed by the International Finance Corporation to advise it on the Botnia
project. All of its reports have been produced for and at the direction of the IFC to specifications
the IFC laid down.
4. Their third report makes three findings that should lay to rest any doubts about the impact
of the Botnia plant. First, EcoMetrix concluded that water quality remains good:
2“Orion Pulp Mill, Uruguay: Independent Performance Monitoring as required by the International Finance
Corporation: Phase 3: Environmental Performance Review 2008 Monitoring Year” ⎯ hereafter referred to as the third
EcoMetrix Report; Uruguay’s Submission of New Documents, 30 June 2009, Ann. S7. - 19 -
“The water quality of the Rio Uruguay is considered to be of high quality since
the concentrations of indicator parameters are well below the most restrictive of the
applicable Uruguayan and CARU standards.”
Secondly, they found that water quality has not changed since the plant started operations:
“A comparison [they say] of the monitoring data pre- and post-commissioning
of the mill shows that water quality of the Rio Uruguay has not changed as a result of
the mill.”
And thirdly, they found no meaningful difference between water quality upstream and water
quality downstream, thus confirming their previous conclusions:
“The water quality between the mill and Fray Bentos is comparable to the water
quality further upstream [they say] . . . , indicating that the mill has not affected water
quality within the Rio Uruguay.”
5. These are not Uruguay’s findings. They are not Botnia’s. They are the conclusions of
IFC-appointed independent experts. They are entitled to great weight and their conclusions,
Uruguay submits, are dispositive. The IFC’s inde pendent validation of the Botnia project is
precisely the sort of evidence to which considerable weight should be given. As this Court has
noted in the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.
Uganda), “evidence obtained” by independent persons “experienced in assessing large amounts of
factual information, some of it of a tec hnical nature, merits special attention” ( Judgment, I.C.J.
3
Reports 2005, p. 201, para. 61) .
II. USES OF THE RIVER AT F RAY B ENTOS
6. The conclusions of the IFC’s experts should come as no surprise to the Court: Uruguay
has the strongest interest in ensu ring that the Botnia plant does not pollute the river or generate
harmful levels of air pollution ⎯ now or in the future. The Uruguay river has provided and will no
doubt continue to provide drinki ng water and recreation for Fray Bentos and other communities
along the river ⎯ that is a resource that Uruguay is hardly likely to put at risk. And contrary to
what Argentina claimed last week, the drinking water inlet for Fray Bentos remains where it has
always been ⎯ downstream from the Botnia plant. There is a reserve inlet pipe located upstream
in case of shipping accidents but it has remained unused since it was installed. IFC monitoring
reports on the quality of the water show that “ the quality of the raw water supply [and they are
The report under consideration was the report of the Port er Commission, which examined persons involved in
the actions at issue in the case. - 20 -
4
referring to Fray Bentos] is unaffected by the discharge from the mill ” . On the map you will see
both the Botnia outlet pipe and the Fray Bentos drinking water inlet. And in the top left hand
corner on the Argentine side you can see the Gualeyguaychú river flowing into Ñandubaysal Bay.
[Fig. 1 ⎯ map.]
7. But the Uruguay river also serves as a vital driver of the region’s economic development.
The new pulp mill is far from being the only source of industrial effluent discharges. On the
Argentine side, Gualeguaychú industrial park is home to some 25factories engaged, among other
5
things, in dyeing, battery manufactur e, and food and beverage processing . At Colon, further
upstream, there is the Fana Quimica chemical plan t, and there are many more Argentine industrial
facilities adjacent to the river in other locations. They all discharge waste water into the river
system 6.
8. Argentina’s own scientific report shows that industries of this kind are a significant source
of many of the substances detected in the river, including the nonylphenols its advocates referred to
last week 7. Far from showing that everything in th e river originates in the Botnia plant,
Argentina’s evidence suggests that many of these substances are a ubiquitous consequence of the
8
growing industrialization of the river .
9. Sewage from the 75,000 residents of Gual eguaychú is similarly discharged into the river
near the Botnia plant and constitutes a major input of phosphorus. The drainage run-off from
hundreds of thousands of hectares of agricultural land and cattle farms will discharge nitrogen and
phosphorus to the river. The soya growers around Gualeyguaychú use nonylphenols in herbicides 9.
No doubt much of that, some of it anyway, ends up in the river.
Third EcoMetrix Report, Uruguay’s S ubmission of New Documents, 30 J une2009, Ann.S7, para.4.6;
emphasis added.
CMU, Vol. X, Ann. 224, p. 40.
6
CMU, para. 2.144.
7
Argentina Scientific and Technical Report, Chap. 3.5, p. 39.
Argentina Scientific and Technical Report, Chap. 3.6.1, p. 44.
J.C.M.Papa, Argentine National Institute of Agricultu ral Technology (INTA), “Evaluation of the activating
capacity on glyphosate of a coadjuvant with a nonylphenol base”, 2002, available at
http://www.inta.gov.ar/oliveros/info/documentos/malezas/artic1.htm (last visited on 20Sept.2009) and “Weeds that are
tolerant of and resistant to herbicides”, 2008, available at
http://www.inta.gov.ar/rafaela/info/documentos/miscelaneas/112/misc112_… (last visited on 2Sept2.009).
Translations included in tab 2 of the judges’ folder. - 21 -
10. The 1975 River Uruguay Statute envisages uses of this kind. Article27 recognizes the
right of each Party to exploit the waters of the river for domestic, sanitary, industrial and
agricultural purposes, in accord ance with the terms of the Statute and the regulations adopted
thereunder by CARU. And lest any Member of the Court is in any doubt, the practice of both
Parties shows that the use of the river for “sanita ry” and “industrial” purposes is intended to allow
sewage and industrial effluent disposal. The importance of this point will be very clear when we
consider the definition of “pollution” later in the week.
11. Both Parties also accept that, in accord ance with general international law, they each
have what the Court has referred to as a “basic right to an equitable and reasonable sharing of the
resources of an international watercourse” ( Gabčíkovo-Nagymaros Project (Hungary/Slovakia),
Judgment, I.C.J. Reports 1997 , p.54, para.78). That equitable right must necessarily include
effluent and sewage disposal. The argument that any discharge of effluent is pollution prohibited
by the Statute is plainly untenable when tested against Article27 and the equitable rights of both
Parties.
III. T HE ALLEGED SENSITIVITY OF THE RIVER AT FRAY BENTOS
12. Now let me move to the alleged sensitivity of the river at Fray Bentos. Fray Bentos is
the right place for a mill of this type and size. Argentina presents a very misleading picture of the
flow of the river and its capacity to dilute effl uent discharged at Fray Bentos. The River Uruguay
really is a very large river ⎯ it is one of the 25 biggest in the world. Averaging over 6,230 m 3/s at
Fray Bentos 10, it is very considerably larger than an y river in Europe, except the Danube and the
11
Volga . Even the mighty Rhine at its largest point only manages 40percent of the Uruguay
river’s flow at Fray Bentos 12. The average flow of the Vistula is 1000 m /s, of the Elbe 877 m /s, 3
3 13
and of the Seine only 410 m /s. All of these rivers host pulp mills . Even if we accept
1See Exponent, Response to the Government of Argentin a’s Reply, pp. 5-9 (hereafter “Exponent Report”). RU,
Vol. IV, Ann. R83.
1S.A.Schumm and B.R.Winkley (eds.), The Variability of Large Alluvial Rivers, ASCE, 1994.
1Technische Universitat Dresden, http://intranet.floodmaster.de/wiki/rhine_river.
13
See Exponent Report, p3.5-9. RU, Vol.IV, Ann. R83. The figure given there for the Elbe
should read 877 /s United Nations Envi ronment Program 2008,
http://www.grid.unep.ch/product/publication/freshwater_europe/elbe.php. - 22 -
3
Argentina’s figure of 440 m /s for the most extreme low flow conditions, the River Uruguay would
still be a large river, more than large enough for a pulp mill.
13. My colleague Mr.McCubbin will explain to the Court in greater depth why the river’s
substantial flow can indeed handle the volume of effluents discharged by the mill, even at low
14
flows . But Professor Sands referred last week to what he called “huge quantities” of pollutants.
In fact the quantity of effluent is small compared to the volume of the river itself, and compared to
the amount of nutrients coming in to the river from other sources. The total volume of effluents is
meaningful only in context. The important point when comparing capacity to handle effluents is
that a bigger river can handle a bigger plant.
14. Argentina’s arguments on reverse flow at Fray Bentos are simply wrong. Contrary to
Argentina’s assertions, Uruguay modelled reverse flow and low flow comprehensively, before it
approved the siting of the plant 15. Its assumptions on reverse flow were if anything even more
conservative that Argentina’s. Uruguay did not ge t this wrong. The river’s flow characteristics,
and its ability to flow in both directions, were well known and taken fully into account in the
permitting process. No significant harm was pred icted even at low flow. Uruguay’s evidence
shows no such harm, nor does Argentina’s. Argen tina’s main arguments on the siting of the plant
is thus as erroneous as their data is misleading. But Mr. Reichler will deal with all of these points
in more detail later this morning.
15. Nor is the river too sensitive at Fray Bent os to deal with the volume of phosphorus and
other effluents discharged at this point. Th e evidence shows that Uruguay quite reasonably
concluded after extensive environmental assessments that this type of plant located at Fray Bentos
would not harm the river or existing uses of the ri ver on both sides. This was also the conclusion
of the International Finance Corporation ⎯ indeed, based on expert reports, they found that the site
16
was suitable for two pulp mills . Professor Kohen’s argument that the choice of site is neither
optimal nor reasonable necessarily assumes significant harm. As the remainder of my speech and
14
Final CIS, pp. 4.48, 4.49 & 4.54-4.57. CMU, Vol. VIII, Ann. 173.
15
CR 2009/16 (Reichler).
16Final CIS, CMU, Vol. VIII, Anns. 173-178. - 23 -
most of Mr.Reichler’s will show, the evidence points overwhelmingly to the conclusion that
Professor Kohen is wrong. The plant has caused no such harm and is most unlikely to do so.
16. It is also quite wrong to suggest, as coun sel did last week, that the river has reached a
“tipping point”, or that Uruguay has displayed “gross environmental reck lessness”. The evidence
shows quite the opposite ⎯ that Uruguay has behaved prudently, diligently, and successfully in
assessing the risk and preventing pollution from the Bo tnia plant. Let me then summarize for the
Court the essential points of Uruguay’s environmental case, before I review the evidence Uruguay
has put before you.
17. Put simply ⎯ but the detail will certainly follow ⎯ the case you will hear today is that
there has been no failure by Uruguay to comply with CARU water qua lity and environmental
protection standards, or with any other applicable instruments. On Wednesday I will argue that if
there is no breach of these standards, there is no harmful pollution as defined by the Statute. If
there is no harmful pollution, the plant cannot have caused significant harm to the river’s ecology
or to Argentina, and it will pose no risk of signi ficant harm. If there is no significant harm and no
significant risk, there can be no breach of the environmental articles of the 1975Statute. And if
there is no breach of the Statute, however broadly construed, Argentina has no case on
environmental harm, or on the siting of the plant.
IV. U RUGUAY S EVIDENCE
18. So let me then turn to Uruguay’s evidence. Mr. President, Members of the Court, there
has been extensive monitoring of the river, and of the plant, before operations began, and
subsequently. In addition to the Environmental Impact Assessment carried out during DINAMA’s
evaluation of the Botnia permit application, the Court will no doubt recall the two further
assessments ⎯ the so-called Cumulative Impact Study, or CIS, and the Final Cumulative Impact
Study ⎯ that were prepared at the direction of the International Finance Corporation before the
plant was authorized to operate. The Final CIS is a much revised and expanded study undertaken
by EcoMetrix, which was brought in in order to revise the original study following criticism of the
earlier report by the IFC ombudswoman. It was completed a full year before DINAMA authorized
the plant to commence operations and it fully supported that decision. - 24 -
19. In November 2007, just before the plant started up, two more reports were prepared for
17
the IFC by what were termed “independent external consultants” ⎯ EcoMetrix again, and
AMEC, an international engineering firm with extensive experience of pulp mills and pollution
control. These are the only independent experts who looked at the Botnia plant in detail.
EcoMetrix found that the monitoring programme is “extremely comprehensive and exceeds the
commitments identified in the CIS” 18. The AMEC report found that: “Modern process
technologies are used that promise to perform w ith low emission and world-leading environmental
19
performance.” Mr. McCubbin will say more about the technology tomorrow.
20. But on the basis of these expert reports the IFC, quite reas onably and properly,
concluded that “Botnia’s Orion pul p mill in Uruguay is ready to operate in accordance with IFC’s
environmental and social requirements and BAT standards” 20. Both of these exacting sets of
requirements were described in detail in Uruguay’ s written pleadings, and I will not repeat them
21
here . But based on these independent reports, the IFC also satisfied itself that “the mill will
comply with IFC and MIGA’s environmental and social policies while” they said “generating
significant economic benefits for the Uruguayan economy” 22: that was their judgment.
21. So there was no lack of independent scrutiny before the plant came into operation. All
the necessary studies had been undertaken and considered by the relevant institutions in Uruguay
and by the IFC before the plant was authorized to operate.
22. And, of course, the assessment and evaluation did not stop there. In July 2008,
EcoMetrix issued a second report for the IFC. This report evaluated the plant’s first six months of
23
operation . According to it there had been “comprehensive monitoring of air and water
emissions” that “provide a detailed characterization of the quantity and quality of the air and water
emissions, and” they said “a direct measure of ope rational efficiency and performance of the mill”.
17
RU, para.4.14. Orion Pulp Mill, Uruguay, Independent Perf ormancing Monitoring as Required by the
International Finance Corporation, Phase 1: Pre-Commissioning Review.
18
Ibid., para. 4.43.
19
Ibid., para. 4.22.
20Ibid., para. 4.15.
21CMU, Chap. 5.
22RU, para. 4.15.
23
Uruguay Independent Performance Monitoring as required by the International Finance Corporation, Phase 2,
6-Month Environmental Performance Review. - 25 -
They also found that the information gathered dur ing the operational monitoring was sufficient, as
they said “to verify that the mill is operating acco rding to authorization limits specified in the
environmental authorization” 24. And they concluded: “After six months of operation, all
indications are that the mill is performing to th e high environmental standards predicted in the EIA
and the CIS, and in accordance with Uruguayan and IFC standards.” 25
23. This intensive monitoring continues today. EcoMetrix produced a third report for the
IFC, which reviews the mill’s environmental performance during the first year of operation, ending
in November 2008. Uruguay’s environment agen cy, DINAMA, has also re ported on the plant’s
26
performance up to May 2009 : and in what follows I will rely heavily on these two reports, since
they give the most up-to-date picture of the reality. You will find the third EcoMetrix Report in
Uruguay’s Supplementary Documents at Annex S7, but there is a summary in your folder at tab 3.
The DINAMA report has also been deposited with the Court in the interests of transparency and
there is, again, a summary in your folder at tab 3.
24. Last week Argentina made various unf ounded criticisms of the Botnia monitoring
régime. Yet the PROCEL scheme for joint mon itoring agreed with Argentina in 2004 was not
nearly as demanding 27. That scheme was designed specifically for the Botnia and ENCE plants.
Since Argentina withdrew from PROCEL, Uruguay has had to make its own arrangements.
Botnia’s emissions, water quality, effects on aqua tic biota and sediments are currently monitored
more frequently, and more comprehensively, than was envisaged under PROCEL. More
28
substances are surveyed now than was previously agreed . It is true that certain chemicals are not
surveyed because they are not used in or produced by Botnia, including nonylphenols and lindane:
but the object of monitoring the plant is to monitor what the Botnia plant adds to the river, not what
it takes from the river.
24RU, para. 4.73.
25Ibid, para. 4.86.
26
DINAMA, Follow-Up Plan Cellulose Plant at Fray Bentos Surface water and sediment quality data report
(Semester January-June 2009); DINAMA July 2009 Water Quality Report, DINAMA Follow-Up Plan Cellulose Plant at
Fray Bentos Air quality re port Semester January-June 2009 ; Semester report of the BOTNIA Emission Control and
Environmental Performance Plan Novemb er 11, 2008- May31,2009; DINAMA Follow-Up Plan Cellulose Plant at
Fray Bentos Surface water and sediment quality data report (Semester January-June 2009). All deposited with the Court.
27CMU, Vol. IV, Ann. 109; RU, Vol. IV, Ann. R89.
28Ibid. - 26 -
25. Also, contrary to Argentina’s assertions last week, collection of baseline data started in
August 2006 29, a full 15months before the plant started operations in November2007 30. Since
then Botnia has monitored and reported on all of the substances on which it is required to report ⎯
and the evidence is in the reports, indeed it provided some of the data used by DINAMA and
EcoMetrix. There is, quite simply, no basis for say ing that Botnia’s monitoring or the monitoring
system as a whole are inadequate.
V. POST OPERATIONAL REPORTS
26. Let us then turn to those post-operational reports, in particular the Third EcoMetrix
31
Report and I would invite you to consider some of its findings in more detail. Based on extensive
monitoring data, that report, fully and without qualification, concludes that the plant’s
environmental performance today is outstanding.
27. As the Court will see, the report provides very clear confirmation that the Botnia plant is
not causing harmful pollution. This is exactly what was predicted by DINAMA and in the IFC’s
environmental impact assessment. The essential points are summarized on pages ES.i and ESii of
the third EcoMetrix Report:
“From this review and to this point in time, all indications are that the mill is
performing to the high environmental standa rds predicted in the EIA and CIS, and in
compliance with Uruguayan and IFC standards. These results are also consistent with
the performance measures for other modern mills.”
28. After reviewing the monitoring results for the six months to May 2009, DINAMA’s most
recent report comes to the same conclusion:
“The environmental performance [they say ] of the BOTNIA plant continued to
comply with the environmental norms in fo rce, the environmental authorizations, and
the criteria 32tablished in the Best Available Techniques (BAT) reference
documents.”
That was DINAMA’s conclusion.
29
Uruguay’s Submission of New Documents, 30 June 2009, Ann. S2.
30
RU, Vol. II, Ann. R6.
3Third EcoMetrix Report, para. 4.6, Uruguay’s Submission of New Documents, 30 June 2009, Ann. S7.
3DINAMA, “Semester report of the BOTNIA Emission Control and Environmental Performance Plan”,
11 November 2008-31 May 2009, p. 26. - 27 -
29. Before turning to look briefly at the fi gures supporting these conclusions, let me explain
as simply as possible what parameters are important in regulating and evaluating wastewater
discharges from the mill. Argentina would have you believe that volume is what matters. If only it
were so simple. I will leave the technicalities to others, but there are three ways in which we might
understand and assess what comes out of the waste pipe.
30. First, water quality. Water quality standard s provide a means of ensuring that the water
in the river remains fit for intended purpose, including drinking, even after effluents are discharged.
There will always be effluents from many sources in a river ⎯ the key question is at what
concentrations they can be regarded as unacceptable pollution that might harm the river and violate
the Statute. The more sensitive the river, the stricter the water quality standards. CARU has
adopted agreed water quality standards for most of the important potential pollutants in the River
Uruguay, although not for phosphorus or nitrogen. And I will return to that point.
31. The Botnia plant is required by its permits to operate so that it does not cause violations
of the strictest applicable standards, whether CARU or Uruguayan. And these standards are indeed
strict. The IFC’s experts compar e CARU standards favourably with those of the European Union,
33
Australia, and the World Health Organization, amongst others . Argentina has not argued
otherwise. Compliance with applicable water quality standards is thus an important test of whether
the mill’s performance meets all the pollution prevention requirements of the 1975 Statute.
32. Second, we can also consider effluent di scharge limits. If water quality is the objective,
the result, then discharge limits are one of the means to secure that result. Expressed as milligrams
per litre (mg/l) and tons per day (t/d), the firs t provides a measurement of the concentration of
effluents in each litre of wastewater discharged from the plant and the second sets a limit on the
absolute amount of effluents that can be discharged in a day. These are the principal tools by
which national regulators achieve or preserve the desired water quality.
3International Finance Corporation, Cumulative Impact St udy, Uruguay Pulp Mills, Ann.D (hereinafter “final
CIS, Ann. D”), pp. D2.5, D2.9-D2.10, Sep. 2006. CMU, Vol. VIII, Ann. 176. - 28 -
33. Under the 1975 Statute it is the parties, not CARU, which prescribe discharge limitations
for any given source 34. Uruguayan law and the permits issued to the plant set specific daily
discharge limits for all the relevant substances. Compliance with these limits is thus the second test
of the mill’s performance. But it is essential for the Court to understand that what comes out of the
effluent pipe includes what was in the water extracted by the plant. If, for example, the river water
is full of phosphorus from elsewhere when extracted from the river by the mill, it will be full of the
same phosphorus when it goes back into the river ⎯ even if the mill has added nothing. Such
discharges will of course not change water quality.
34. Finally, I think the third way of looking at these issues is to consider environmental
efficiency ⎯ how much effluent does the mill discharge for each ton of pulp produced?
Mr.McCubbin will deal with this point tomorrow, so I will move quickly on and outline what
EcoMetrix and DINAMA say about effluent disch arge limits and water quality. Because the
evaluation has been so thorough ⎯ one commentator described th e Botnia mill as “the most
35
monitored site in the world today” — I can but scratch the surface of the information but I am
sure the Court will be very grateful to me if I do refrain from going any further.
VI. D ISCHARGES COMPLY WITH ALL THE PERMITS GRANTED BY U RUGUAY
35. The first point to make is to draw your attention to the plant’s compliance with its
effluent discharge limits.
36. The third EcoMetrix Report shows that, as confirmed by DINAMA, effluent discharges
from the plant comply with all the applicable Uruguayan regulations and permits and that the
36
effluent is not toxic . In some cases, including dioxins and furans, toxic substances to which
Argentina has drawn attention are detectable in mill discharges, if at all, only at background levels
equivalent to the river water.
34
The Digest does have discharge limitations for a limited number of substances, Digest of the Administrative
Commission of the Uruguay River (CARU), Subject E3 (hereinafter “CARU Digest Subject E3”), Title 2, Chap. 5, Art. 7
(1984, as amended), CMU, Vol. IV, Ann. 60, but the discharges of the Botnia plant will not contain, and Argentina does
not allege that they will contain, any of those substances.
35
Clarin, 25 January 2009. Uruguay’s Submission of New Documents, 30 June 2009, Ann. S17.
3Third EcoMetrix Report, p. 3.5, Uruguay’s Submission of New Documents, 30 June 2009, Ann. S7. - 29 -
37. Let me start with phosphorus. As the Court no doubt recalls from Argentina’s
presentations last week, phosphorus, like nitrogen, af fects the health of the river because it can, in
some instances, contribute to algal blooms. Uruguay, of course, recognizes that there is a
long-standing problem of algal blooms in the river, but it believes that Argentina has vastly
overestimated the impact of phosphorous discharges from the Botnia plant.
38. For example, emissions of phosphorus during its first year of operations have remained
well below the regulatory limits. Uruguayan Decree253/79 and Botnia’s permit establish a
37
maximum discharge limit of 5milligrams per litre . The mill’s average discharge of 0.59mg/l.
That is little more than one tenth of the permit limit 38, and it is 40 per cent lower than the standard
of 1mg/l that, in the written pleadings, ProfessorWheater claimed should be applicable to the
Botnia mill 39.
39. Moreover, as the EcoMetrix Report also confirms total phosphorus “reduced over the
latter part of the 2008monitoring year due to optimization of the mill process and effluent
treatment” 40. This improvement has continued since Ecometrix published its third report.
DINAMA has established that between Nove mber2008 and May2009 the mill’s average
discharge of phosphorus fell further, by almost half, to 0.3 mg/l, or less than one seventeenth of the
regulatory limit, and 70 per cent lower than Professor Wheater’s 1 mg/l standard 41 ⎯ 70 per cent.
40. Let us look at nitrogen. The Botnia plant’s performan ce with respect to nitrogen has
been just as good. The EcoMetrix Report notes that “the concentration of total nitrogen is well
within the permit limit” 42. In its written pleadings, although not last week, Argentina asserted that
43
a well-run pulp mill should have an effluent concentration of between 2 to 4 mg/l of nitrogen . In
fact the average concentration of nitrogen in Botnia’s effluent fo r the first year of operations is
37Decree No. 253/79, Art. 11(2), CMU, Vol. II, Ann. 6.
38
Third EcoMetrix Report, p. 3.4. Uruguay’s Submission of New Documents, 30 June 2009, Ann. S7.
39
Second Wheater Report, p. 25. RA, Vol. III, Ann. 44; RA, para. 3.175.
40
Third EcoMetrix Report, p. 3.4, Uruguay’s Submission of New Documents, 30 June 2009, Ann. S7.
41DINAMA, July 2009, Botnia Environmental Performance Report, p. 14.
42Third EcoMetrix Report, p. 3.4. Uruguay’s Submission of New Documents, 30 June 2009, Ann. S7.
43
RA, para. 3.111. - 30 -
44
2.6 mg/l . The maximum monthly load for 2008 has b een just one third of the permit limit and
even less than the final CIS estimate 45.
41. Dioxins, furans, lindane . The Court heard much last week about dioxins and furans,
which Argentina insinuated had been deposited in the river by the Botnia plant. But what the Court
did not hear from Argentina were the results of the monitoring of Botnia’s effluent, no doubt
because it provides conclusive eviden ce that dioxins and furans in the river could not have come
from the plant. Even using sophisticated methodol ogy capable of detecting the extraordinarily low
concentration of less than one part per quadrillion of water ⎯ and, yes, I had to use Google to work
out what a quadrillion was ⎯ dioxins in the plant’s effluent were not found, except a single furan
at a sample well below one fifth of one quadrillionth of a gram per litre ⎯ I think that is very, very,
very, very small. It is certainly lower than the furan levels detected in the baseline sampling
performed on the Uruguay river 46. This tiny amount is more than 25times below the discharge
permit limits. As EcoMetrix concl uded, it could not be attributable to the plant but, rather, could
only have come from the water supply taken from the river.
42. The same can be said for lindane. Use of lindane has been illegal in Uruguay for over
47
twenty years . From its knowledge of Botnia’s processes, DINAMA confirms that Botnia does
not use lindane in the mill. Trace elements fro m other sources will of course continue to be
detectable in the river for many years. Argentina assumes that all the “pollutants” ⎯ to use its
term ⎯ all the pollutants it has identified come fr om the plant. But Uruguay’s evidence shows
very clearly that they do not. You would expect to find dioxins and lindane in the river, and in the
sediments. They are, after all, persistent. They may be in the water the plant extracts from the
river. They will still be in the water it puts back. If the levels are no higher than background
levels, they cannot have been added by Botnia.
44Third EcoMetrix Report, p.3.4, Uruguay’s Submission of New Docume nts, 30 June 2009, Ann. S7; RU,
Vol. IV, Ann. R98.
45Third EcoMetrix Report, p. 3.4, Uruguay’s Submission of New Documents, 30 June 2009, Ann. S7; Wastewater
Treatment System Approval, op. cit., table 1; CMU, Vol. X, Ann. 225.
46Third EcoMetrix Report, p. 3.5, Uruguay’s Submission of New Documents, 30 June 2009, Ann. S7; DINAMA,
July 2009, Botnia Environmental Performance Report, p. 6, table 2.
47www.mgap.gub.uy/dgssaa/normativa. - 31 -
43. No one should be surprised by the all but complete absence of dioxins and furans in the
Botnia discharge. These persistent organic pollutants are regulated by Uruguay in accordance with
the 2001 Convention on Persistent Organic Pollutants, otherwise known as “POPs”, and they are
by-products of combustion and various industrial processes, including the bleaching of wood pulp
by chlorine. But Botnia’s technology does not use chlorine bleaching and therefore does not
produce or generate dioxins and furans in more than vanishingly small trace amounts, unlike the
pulp mills operating in Argentina that still employ the decades-old chlorine process. It is
noticeable, as I told the Court in 2006, that while Argentina emitted 2110g of dioxin in 2001
according to its own National Inventory on the Discharge of Dioxins and Furans, in 2002 the whole
48
of Uruguay for comparison emitted a total of 55 g, according to its national inventory . And those
are the most up-to-date figures available.
44. Toxicity. Let me also respond to Argentina’s re peated and rather car eless references to
Botnia’s effluent as toxic. The effluent is not toxic ⎯ and even Argentina’s own scientific report
nowhere concludes that it is. As required by its Wastewater Treatment System Approval, Botnia
49
conducts monthly acute toxicity tests for the effluent . This is done by measuring the survival of
fish, invertebrates, and other river biota in pure e ffluent. Botnia’s effluent has passed with flying
50
colours: the tests have revealed no acute toxicity from mill effluent whatsoever . The IFC’s
technical experts concluded that “[m]onthly t esting has been completed following standard
protocols using three separate test procedures”. These results show that the effluent is not toxic
and is in full compliance with Uruguayan regulations and permits 51. No dead fish. No dead snails.
Not in the laboratory. Not in the river.
45. I will address air pollution only briefly: Mr. McCubbin will say more about the technical
aspects. In Uruguay’s view air pollution falls strictly outside the Court’s jurisdiction in the present
dispute. The 1975Statute is concerned with the optimum and rational utilization of the River
Uruguay (Art.1). It covers, among other things, na vigation in the river, fishing, conservation of
48
POPS Convention website at www.pops.int/documents/guidance
49
Environmental Performance Review, p. 3.6. RU, Vol. IV, Ann. R98.
50Ibid. See also Third EcoMetrix Report, p.3.5, Uruguay’s Submission of New Docu ments, 30 June 2009;
DINAMA, July 2009, Botnia Environmental Performance Report, p. 6, table 2.
51Third EcoMetrix Report, Uruguay’s Submission of New Documents, 30 June 2009, Ann. S7, p. 3.5. - 32 -
natural resources, and prevention of pollution of the “aquatic environment” (Arts.35, 37-41). It
does not create a general régime of environmental protection, nor does it seek to regulate effluents
otherwise than through the medium of the river.
46. The Statute has no provisions specifically on air pollution. Article36, on which
Argentina relies, is concerned with the co-o rdination of measures “through the Commission” ⎯
that is CARU ⎯ to avoid “any change to the ecological balance and to control pests and...
harmful factors in the river and the areas affected by it”. This article cannot reasonably be
interpreted as covering transboundary air pollution allegedly affecting areas well beyond the river.
If it did apply to air pollution CARU would have regulations on the subject. CARU has no
regulations on air quality. It has confined itself solely to the regulation of water quality. Neither
Argentina nor Uruguay has ever proposed that CARU should regulate transboundary air pollution.
This is surely a decisive rejection of the claim that the Statute covers the topic.
47. Nor has Argentina offered the Court any evid ence that airborne emissions from the plant
cause significant harm to the aquatic environment or alter its ecological balance: but of course
Uruguay’s evidence that water quality has not chan ged applies equally to airborne deposition and
to discharges through the effluent outlet.
48. Article 60 of the Statute indicates with th e utmost clarity that the only disputes covered
ratione materiae are those relating “to the interpretation or application...of the Statute”. It
follows that air pollution extending beyond the rive r itself falls outside the Court’s jurisdiction
under Article 60.
VII. CARU WATER QUALITY STANDARDS HAVE NOT BEEN VIOLATED
49. Now let me turn to the proposition that CARU’s water quality standards have not been
violated. If we look at Botnia plant’s impact on water quality in the River Uruguay, we are really
looking at its lack of any impact ⎯ if we measure that by reference principally to the water quality
standards established by CARU and Uruguay. As reported by EcoMetrix and DINAMA, we can
see that the Botnia plant has had no effect on the river. DINAMA’s monitoring plan for Botnia
requires water quality monitoring for more than 60 parameters, at 16representative stations along
the river, both before and after the plant stated up. Monitoring covered all seasons throughout - 33 -
2008 and the first half of 2009, and, of course, it continues. It includes periods of low river flow
and high river flow. It has resulted in the analysis of thousands of samples. You will see, I hope,
on the screen ⎯ yes ⎯ the location of these monitoring stations, some of them upstream, some of
them adjacent to, and some of them downstream from the plant.
50. The findings reported by EcoMetrix in its third report show very clearly that effluent
from the Botnia plant has not resulted in any violation of applicable CARU water quality standards.
DINAMA’s findings confirm this conclusion, which was predicted with great accuracy, initially by
DINAMA, and then by the Final Cumulative Impact Study carried out for the World Bank. The
CIS study found that “the mill discharge would have minimal effect on water quality within the Rio
52
Uruguay under both average and extreme low flow conditions” . That has indeed turned out to be
the case ⎯ and even Argentina’s scientific report does not suggest otherwise, although you would
not have learnt that from their counsel. Ind eed in Argentina’s Biogeochemical study, which
measured what they called “sta ndard water quality parameters” ⎯ they are their words ⎯ from
November2008 to April2009 (p.10), Argentina’s report concludes that “All parameters [all
parameters] show relative(ly) normal values for th e River Uruguay” (p.15). It is very strange
when you read that and recall what the Court was told last week.
51. So, Argentina’s own evidence thus confir ms Uruguay’s findings. For example, if you
look at DINAMA’s graph, it shows that levels of nitrogen throughout the river were lower in 2009
53
than in the baseline year and the plant’s first year of operation . Similarly, it is still impossible to
detect dioxins and furans at the stations closest to the Botnia plant, or elsewhere 54.
52. One conclusion from all of the monitoring undertaken before the Botnia plant began
operations is that phosphorous le vels were too high. Unsurprisingly, this is still the case.
However, it is important to realize that monitoring has determined that the levels of phosphorus in
the river have not increased . DINAMA’s most recent data confirms that phosphorous
concentrations in the waters above and below the plant are highly variable, but the 2009 total
phosphorus graph is very similar to previous year s, including the baseline year before the plant
52
Third EcoMetrix Report, Uruguay’s Submission of New Documents, 30June 2009, Ann.S7, para.4.5;
emphasis added.
53
DINAMA, July 2009, Water Quality Report, p. 17, Fig. 4.23.
54DINAMA, July 2009, Water Quality Report, p. 21, para. 4.1.11.5. - 34 -
started to operate 55. This is not at all what would be expected if the plant really had made any
difference to water quality.
53. Now the third EcoMetrix Report independent ly comes to the same conclusion. With
respect to phosphorus it says: “Total phosphorus levels are comparable to the baseline levels
previously reported for the Río Uruguay... [and let me emphasize the next point, they say] The
present and past levels of total phosphorus are not attributed to the mill effluent discharge.” 56 But
although neither Botnia nor Uruguay is the sole or even primary cause of the phosphorus in the
river, Uruguay has made diligent efforts to redu ce inputs of phosphorus and other nutrients from
municipal wastewater, and from agricultural and other land-use activities.
54. As we said in the Rejoinder, and as was recommended by the final CIS and the IFC, the
57
Botnia plant will soon start to treat the municipal wastewater of Fray Bentos . According to the
final CIS this “reduces the total loading of organics and nutrients, in particular phosphorus, to the
Rio Uruguay” 58, and they go on to say it “ virtually off-sets the net loading of organics and
59
nutrients from the Botnia mill...” . Phosphorous discharges in the immediate vicinity of the
plant would thus be reduced by some 8.8tons per year, or nearly three quarters of the plant’s
annual discharge predicted in the final CIS 60.
55. Secondly, Uruguay is also engaged in expanding and updating other municipal
61
wastewater systems across Uruguay, includi ng systems that discharge to the river . For example,
the planned wastewater treatment system in Salto will reduce phosphorous discharges to the
Uruguay river by approximately 25 tons annually, or about twice the predicted discharge from the
62
Botnia plant .
55DINAMA, July 2009, Water Quality Report, p. 18, fig. 4.24.
56Third EcoMetrix Report, Uruguay’s Submission of Ne w Documents, 30June2009, Ann.S7, para.4.2;
emphasis added.
57See Agreement between OSE and Botnia Regarding Treatmen t of the Municipal Wastewater of Fray Bentos,
29 Apr. 2008, RU, Vol. III, Ann. R71.
58Final CIS, Ann. D, pp. D4.5-4.6, CMU, Vol. VIII, Ann. 176.
59Ibid., p. D4.6; emphasis added.
60
RU, para.4.93. See also OSE, Disc harge of Residual Liquids in the Uruguay River Basin, RU, Vol.II,
Ann. R13; Final CIS, Ann. D, p. D4.6, CMU, Vol. VIII, Ann. 176.
61World Bank, Press Release, RU, Vol. III, Ann. R69.
62
RU, paras. 4.93-4.95. - 35 -
56. And finally, Uruguay is implementing a comp rehensive conservation and control plan to
reduce soil erosion and run-off containing phosphorus and other nutrient contributions from
63
farming and livestock . When fully implemented, all of these measures together should more than
offset the discharge of phosphorus from the Botnia plant. It would, of course, be excellent if
Argentina would join in co-ordina ting measures of this kind under Article36 of the Statute. But
not only has Argentina not done so, but its own discharge of nutrients is a large part of the problem.
57. Argentina’s complete failure to deal with these inputs into the river is probably the most
glaring weakness in its case. Far from showing that the river is highly sensitive, it shows the
contrary. After hearing from Argentina about the 1975 Statute creating a community of interest in
the river, it may surprise Members of the Court to learn that only Uruguay regulates phosphorus 64.
Neither Argentina nor CARU has a water quality standard for phosphorus, or for the soluble
reactive phosphorus about which its counsel held forth so eloquently last week.
58. If the river really is as sensitive as Argentina says, why has it not adopted a water quality
standard for phosphorus in whatever form? Why has it not proposed that CARU should adopt one?
Plainly, Uruguay could have no objection. Presu mably there is no CARU water quality standard
for any type of phosphorus because Argentina does not want one.
59. And why has Argentina not done much more to address these problems itself? To
choose only one example: the evidence shows that Argentina’s phosphorous inputs from the
Gualeguaychú river represent a far greater proporti on of the total phosphorous loading than inputs
from the Botnia plant. Uruguay’s experts have estimated that phosphorous loadings from the
65
Gualeguaychú river watershed alone totalled some 350tonnes per year . This is more than
25 times the total amount of phosphorus contributed by the Botnia plant to the whole river 66. It is
also rather less than Argentina’s own eviden ce. And Argentina has not challenged these
calculations. It acknowledges, Argentina acknowledges in its pleadings, that the elevated level of
63
Ministry of Livestock, Agricultu re and Fishing, “Campaign for Re sponsible Land Use”, 16Apr.2009,
Uruguay’s Submission of New Documents, Ann. S1; Affidavit of Eng. Andrés Berterreche, Undersecretary of Livestock,
Agriculture and Fishing of Uruguay, 11 July 2008, RU, Vol. IV, Ann. R95.
64
RU, Decree 253/79.
65The conservative estimate for nitrogen is over 3,400 tonnes, RU, para. 6.28.
66Exponent Report, Sec. 4-2, RU, Vol. IV, Ann. R83. - 36 -
phosphorus in the beach area at Ñandubaysal is most likely caused by its proximity to the mouth of
67
the Gualeguaychú river , not surprisingly.
60. In failing to minimize these inputs Arge ntina is neither acting diligently to prevent
pollution in accordance with the Statute nor equita bly in its own use of the river as a shared
resource. It complains about far lower inputs of nutrients from the Botnia mill, yet it appropriates a
grossly inequitable share of the river’s domes tic, industrial and agricultural uses for its own
effluents. In effect, what Argentina asserts is a servitude, intended to allow it to pollute the river
indefinitely. It defends itself by claiming that existing Argentine uses of the river have priority
over newer Uruguayan uses, or by attributing every po llutant in the river to the Botnia plant when
this is plainly not the case.
VIII. THE RIVER ’S ECOLOGICAL BALANCE AND
ENVIRONMENT HAVE NOT BEEN HARMED
61. Let me then turn to the river’s ecological ba lance, and I have not got a great deal more to
say. Argentina made some specific claims last w eek about harmful effects on fish and rotifers.
Mr. Reichler’s speech will show the Court why these cl aims are not credible. All that I need say is
that Uruguay’s monitoring programme includes deta iled assessments of the plant’s effects on river
fauna, and on the sediments where local fish species feed. Uruguay has not found any evidence of
changes in the ecology of the river. On the contra ry, its monitoring shows a river just as healthy as
before the plant began to operate.
62. In August the Directorate for Aqua tic Resources, otherwise known as “DINARA”,
publicly reported on the results of ichthyofauna monitoring carried out during the second year of
operation of the Botnia plant 68. This covered the stretch of river from kilometre80 to
kilometre 110 of the lower Uruguay river. The resu lts were then compared with those reported in
the baseline study and in the previous year. The purpose was obviously to evaluate the existence of
possible changes in the short and medium term.
67
MA, para. 6.32.
6DINARA, Report on Ichthyofauna Monitoring in the Botnia Cellulose Plant Area, 2nd Year of Operation, 2009.
Deposited with the Court. - 37 -
63. DINARA’s very comprehensive report ⎯ which has been given to the Court ⎯
concludes that compared to 2008 and 2009 there is no change in species biodiversity and the
average length and average weight calculated for the four fishing stations showed no variations of
importance.
64. DINAMA has also monitored the sediments wh ere some fish species feed. I will simply
quote from the text of its July 2009 report: “ The results of the monitoring of the sediments done in
February 2009 . . . show once again that the quality of the sediments at the bottom of the Uruguay
69
River has not been altered as a consequence of the industrial activity of the Botnia plant” .
65. Uruguay was criticized last week for allegedly harming the Ramsar Convention wetland
at Esteros de Farrapos. This site is wholly in Ur uguay. Argentina’s claim that the site has been
damaged was supported only by a photograph allegedly showing the February algal bloom reached
areas near the southern boundary. Mr. Reichler will show that the algal bloom originated not at the
Botnia plant but much further upstream.
66. In my submission to the Court in 2006, I pointed out that Esteros de Farrapos was not
included in the list of Ramsar sites whose ecological character is threatened ⎯ otherwise known as
the “Montreux record” 70. Nor has the position changed. As of last Tuesday 15September2009
when I did a Google search, Argentina had failed to secure a listing of the site on the Montreux
record. This is not surprising ⎯ Argentina has no evidence of damage. It has produced no data to
show that it took relevant samples at Esteros de Farrapos, or that it measured the flow of the river at
this point. We do agree that under certain cond itions the model shows the effluent plume could
reach Esteros de Farrapos, which is some 16 km away from the plant. Regrettably this information
was not available to me and I therefore could not make it available to the Court in 2006. But even
if the effluent plume did reach Esteros de Farrapos, it would do so at the dilution of 1:1000
indicated on the slide that Professor Colombo so ve ry helpfully showed the Court last week. One
would expect effluent from the mill at a dilution of 1:1000 to be quite harmless and below any
concentration capable of constituting pollution.
69
DINAMA, Follow-Up Plan Cellulose Plant at Fray Bentos Surface Water and Sediment Quality Data Report
(Semester January-June 2009), p. 29, para. 5.2; emphasis added.
7www.ramsar.org - 38 -
IX. C ONCLUSIONS
67. Mr.President, and Members of the Court, that, happily, brings me to my conclusions.
All of the studies undertaken prior to Uruguay’s decision to authorize the operation of the plant
concluded that there was no risk of significant harm to Argentina, no risk of pollution of the river,
no likelihood of significant changes to the river’s ecological balance. Uruguay took full account of
these studies and of Argentina’s representations before approving the plant. The evidence provided
by independent monitoring reports, and by DINAMA, since the plant started to operate, confirms
the accuracy of all of these predictions. And speci fically, if I may summarize for the Court, what
the evidence that we have put before the Cour t shows is the following, and I have got seven
conclusions:
1. There has been no change in water quality when the pre- and post-operational data are
compared — no change.
2. Phosphorous and nitrogen levels in the rive r have not changed since the plant began to
operate ⎯ no change.
3. Levels of persistent organic pollutants, including dioxin s and furans, have not changed since
the plant began to operate ⎯ no change.
4. Effluent discharges from Botnia are below the levels specified in all of the applicable discharge
regulations and permits, and Argentina has not argued otherwise.
5. Effluent discharges from the mill have not resulted in the river’s water quality falling below the
applicable standards set by CARU and agreed by both States, and Argentina has not argued
otherwise.
6. The plant’s effluent discharges have not caused any alteration in the ecological balance of the
river or harmed the aquatic environment.
7. And finally, cumulatively, these conclusions point inescapably to the further conclusion that
effluent discharges from the Botnia plant have not caused harmful pollution in violation of the
1975 Statute of the River Uruguay, and I will return to that point on Wednesday.
68. Mr.Reichler will now show the Court th at Argentina’s evidence leads to exactly the
same conclusions ⎯ that Argentina’s evidence leads to exactly the same conclusion. - 39 -
Mr.President, this may be a convenient time for a coffee break. And Mr.President,
Members of the Court, that concludes my speech this morning.
The VICE-PRESIDENT, Acting President: Indeed, it is a good moment to take our coffee
break. I thank you, Professor Boyle, for your presentation, and I suspend the sitting for 15 minutes.
The Court adjourned from 11.15 to 11.30 a.m.
The VICE-PRESIDENT, Acting President: Please be seated. The hearing is resumed, and
Mr. Reichler, you have the floor.
Mr. REICHLER:
THE PERFORMANCE OF THE PLANT : ARGENTINA ’S EVIDENCE
(PART I)
1. Mr.President, Members of the Court, as always for me it is a special honour to appear
before you, and I am especially privileged today to speak on behalf of Uruguay.
2. I will address you today, and also tomorrow, on the evidence concerning the
environmental issues in this case. In particular, I will review with you the evidence that has been
presented by Argentina, and I will demonstrate to you that it fails to support Argentina’s case.
3. In fact, the failure of Argentina’s evid ence is dramatic. As you heard last week, the
applicant State invested more that two years in producing its Scientific and Technical Study, which
was presented to the Court only on 30June of th is year. According to Argentina, more than
90people, at all levels, were involved in this effort, which was performed by the science
71
departments at two Argentine universities, under contract to the Argentine Government . It
appears that no expense was spared. Nonetheless, as you will see, the data collected as part of this
massive study do not support the claims you heard last week.
4. In fact, and this is quite remarkable given the size, the breadth, the cost and the purpose of
Argentina’s scientific study, the data collected by Argentina fully support Uruguay’s claims:
(i) that the Botnia plant has not affected the water quality of the Uruguay river;
71New Documents Submitted by Argentina, Vol.I, Scintific and Technical Report (hereafter “Argentina
Scientific and Technical Report”), 30 June 2009, Executive Summary, p. 1. - 40 -
(ii) that the plant has not increased the concentrations of phosphorus, or nitrogen, or any other
substances in the river;
(iii) that the plant did not cause ⎯ indeed, based on Argentina’s own data from its own study,
the plant could not have caused the algal bloom of 4 February 2009;
(iv) that the plant has not affected the biodiversity of the river or its ecosystem;
(v) that it has not harmed aquatic organisms such as clams or rotifers;
(vi) that it has not harmed fish;
(vii) that it has not introduced nonylphenols into the river; and
(viii) that it has not introduced dioxins or furans into the river.
5. For four days last week, we sat through an artful presentation by Argentina’s very able
counsel. The picture they painted of the Botnia plant was horrible ⎯ in two different senses of the
word. They portrayed the plant as a horrible environmental nightmare. But the picture painted by
Argentina was horrible in another sense. It was a horrible likeness. In the end, Mr. President, as
you and the distinguished Members of the Court will see, the picture of the plant painted by
Argentina’s counsel was no Vermeer. It was not Dutch realism. It was the surrealism of Salvador
Dalí.
6. Mr.President, in the course of the days that follow, Uruguay will give you the facts ⎯
facts, not as we choose to portray them, but as they are. You will see that the evidence before the
Court, especially including Argentina’s own Scientific and Technical Study, does not sustain
Argentina’s case. Botnia has not caused any harm to the river, to its water quality, or to any aspect
of the aquatic environment; nor is there any evidence that it is likely to do so in the future. In fact,
you will see that the Botnia plant is performing far better, and to far higher environmental
standards, than even the IFC and its independent experts predicted it would.
7. Mr. President, I must begin by asking your indulgence because, contrary to my desire, the
use of technical and scientific terms is unavoida ble. Mindful of the numbing effects an abundance
of technical words and numbers can have on even th e most patient listener, I will try to keep both
the scientific language and the mathematics within manageable limits, and I will rely heavily on
visuals ⎯ maps, satellite photos and charts ⎯ to ease the Court’s task in absorbing a considerable
amount of complex, but highly relevant, information. - 41 -
I.R EVERSE FLOW
8. Mr. President, Members of the Court, we heard a lot from Argentina last week about the
reverse flow of the Uruguay river. We heard from Argentina’s experts and counsel that the
Uruguay river flows in reverse, that is, it flows upstr eam, quite frequently. In fact, many rivers do.
Reverse flow in tidal estuaries is a common phenomenon, and quite a number of the others are also
sites for pulp mills, as Mr. McCubbin will discuss tomorrow. There is nothing new, or surprising,
at least to Uruguay, about the hydrodynamics of the Uruguay river, including the frequency of its
reverse flow. Uruguay, and DINAMA in particular, have been familiar with this since long before
Botnia first arrived in the country.
9. Last Monday, Professor Sands displayed a chart, which I will have more to say about later
in my speech. His chart purported to show the frequency of the river’s reverse flow, which he told
us occurred with some significance on 23 per cent of the days of the year 72.
10. Professor Sands and his colleagues told us, many times, that this is one of the most
important ⎯ if not the most important ⎯ aspects of Argentina’s case, because, according to them,
the reverse flow of the river prevents the Botnia plant’s effluents from washing away downstream.
Instead, according to Argentina’s counsel, effluents such as phosphorus and nitrogen accumulate in
the part of the river adjacent to the plant, until they reach concentration levels harmful to water
73
quality and biodiversity .
11. According to Argentina, Uruguay’s biggest sin is that it neglected to take the river’s
reverse flow into account in deciding to authorize th e Botnia plant. I will not refer here to all the
times we heard this last week, but there were at least 13 such occasions 74, all cited in the footnotes
to my speech that will appear in the compte rendu. This is a central theme of their case: that
Uruguay failed to take the river’s reverse flow into account when it authorized the plant, either
because of DINAMA’s sheer incompetence or because, as ProfessorKohen unkindly put it,
75
Uruguay bent its knee before Botnia .
72
CR 2009/12, pp. 41-42, paras. 12-13.
73For example, CR 2009/12, pp. 38-39, paras. 7-9.
74CR 2009/12, p.38, para.8; p.39, para.9; p.39, para .9; p.41, para.13; p.47 , para.22; p.51, para.32;
p.53, para.36; CR 2009/14, p.52, para.29(Colombo); CR2009/ 14, p.57, para.7 (Sands); p.60, para.11; p.60,
para. 12; CR 2009/15, p. 13, para.6 (Sands).
75See CR 2009/13, p. 25, para. 35 (Kohen). - 42 -
12. We heard further, that Uruguay did things backwards: first they authorized, then they
assessed. Even when Uruguay finally got around to assessing, Professor Sands said, Uruguay got it
wrong, because they erroneously assumed that the river only flowed in reverse on rare occasions,
and seriously underestimated the frequency of this occurrence 76.
13. Mr. President, Members of the Court, I am afraid that it is my good friends on the other
side who got it wrong. To be sure, Argentina’s counsel are all extremely forceful, articulate and
effective advocates, and well versed in the law, as they all demonstrated last week. But, and
especially in light of the deep regard I have for all of them, it is with considerable regret that I say
this: they do not know the evidence. They do not know the evidence in this case.
14. The evidence, the evidence that has been before the Court as part of the record of these
proceedings for years, the same evidence that was presented by Uruguay to Argentina within the
GTAN negotiations that took place between August 2005 and January 2006, before construction of
the plant was authorized, this evidence establishes the following six facts:
1. Uruguay thoroughly and painstakingly and correc tly assessed the river flow, and especially the
tendency of the river to flow in reverse, long before it authorized construction of the Botnia
plant 77. The citations to the record will be reflecte d, for all of these points, in the footnotes to
my speech appearing in the compte rendu.
2. Uruguay studiously assessed flow patterns across a wide swathe of the river, not just at a single
point like Argentina, to obtain a truer picture of flow volume and velocity, as well as direction,
and to more accurately predict how quickly, and to where, Botnia’s effluent would disperse 78.
3. Uruguay used a well-known water quality numerical model for determining effluent dispersion,
and displayed the results in a simulated anim ation video like the one Argentina presented in
Court last week. Based on its flow analyses, Uruguay determined that, for purposes of
76CR 2009/12, p. 42, para. 13 (Sands).
77
DINAMA Environmental Impact Assess ment Report for the Botnia Plant (11 Feb.2005), CMU, Vol.II,
Ann. 20 (hereafter “DINAMA EIA Report”), paras. 1 and 4.1; Additional Reports 5 of the Botnia Environmental Impact
Assessment, Ann.VIII, Studies of Plume Dispersion and Sediment Studies (12 Nov.2004), CMU, Vol.VII, Ann.164
(hereafter “Botnia Hydrodynamic Study”); Analysis of the Fluid Emissions Derived from the Botnia and M’Bopicuá
Pulp Mills, prepared by Chemical Engineer Cyro Croce, Hydr. and Environmental Engineer Eugenio Lorenzo, DINAMA
(7 Nov. 2005) (GTAN/DU/24/07-11-05), CMU, Vol. V, Ann. 143 (hereafter “DI NAMA Hydrodynamics Presentation at
GTAN”); Hydrologic Analysis for the Proposed Botnia Cell ulose Plant on the Uruguay River, Dr. J. Craig Swanson and
Dr. Eduardo A. Yassuda (Applied Science Associates, Inc.) (June 2007), RU, Ann. 214, pp. 6-9.
78Ibid. - 43 -
calculating the amount of effluent that the river could safely accept without harming water
quality or aquatic species, it should take an extr emely conservative approach and presume that
the river flows in reverse 29percent of th e time. That is, Uruguay presumed, in its
consideration of the Botnia project, that the rive r flows in reverse even more frequently than
Argentina says 7.
4. Uruguay concluded, based on this extremely conservative presumption, and other equally
cautious presumptions about the volume and velocity of the flow, as well as its direction, that
the Botnia effluents would dilute and disperse long before reaching con centration levels that
pose any risk of harm to water quality, or aquatic species, including fish 80.
5. Based on these conclusions, and only after they were presented to Argentina, and explained to
Argentina, and subsequently confirmed, Uruguay authorized the construction of the plant in
January2006. Actual operation of the plant w as not authorized for another 22months, until
November2007, after the IFC and its independe nt experts confirmed the validity of the
conclusions that Uruguay had reached 81.
6. Uruguay’s assessments of river flow, including reverse flow ⎯ including calculations,
conclusions, and the model itself, both in the form of slides and a simulated animation video ⎯
were provided to Argentina during the GTAN process, and discussed thoroughly with
82
Argentina, in 2005 . We have the documents, in the record of this case, to prove all of this.
15. Argentina’s counsel told you last Wednesday that they could find only one document ⎯
one document ⎯ in the entire record of this case that reflected Uruguay’s awareness of the reverse
flow issue, and they flashed on the screen a single piece of paper prepared by Botnia in
79Ibid; DINAMA Remarks on the Argentine Government Report on the Problem of Phosphorous, Ann.43
(May 2008), RU, Vol. II, Ann. R11, p. 2. See also CR 2009/12, p. 41, para. 13 (Sands).
80DINAMA EIA Report, paras. 1 and 4.1; Botnia Hydrodynamic Study; DINAMA Hydrodynamics Presentation
at GTAN; DINAMA Remarks on the Argentine Government Report on the Problem of Phosphorous, Ann.43
(May 2008), RU, Vol. II, Ann. R11, p. 2.
81DINAMA EIA Report, paras.1 and 4.1; First Report of the Uruguayan Delegation to the GTAN
(31 Jan. 2006), CMU, Vol. V, Ann. 154, p. B2 (note regarding GTAN/DU/12/14-09-05 provided to Argentine delegation:
“CD containing effluent dispersion model of the Botnia co mpany”); DINAMA Hydrodynamics Presentation at GTAN;
RU, para. 6.62.
82
First Report of the Uruguayan Delegation to the GTAN (31 Jan.2006), CMU, Vol.V, Ann.154, p.B2 (note
regarding GTAN/DU/12/14-09-05 provided to Ar gentine delegation: “CD containing effluent dispersion model of the
Botnia company”); DINAMA Hydrodynamics Presentati on at GTAN. See also, First Report of the Uruguayan
Delegation to the GTAN (31 Jan. 2006), CMU, Vol. V, Ann. 154, p. B3 (note regarding GTAN/DU/24/07-11-05); Final
Report of the Argentine Delegation to the GTAN (3 Feb. 2006), RA, Vol. IV, Ann. 1, p. 9 ( quoting Botnia’s “Studies of
Plume Dispersion and Sediment Studies” that flow reversals are “frequent in the area”). - 44 -
December 2003 purporting to record flow direction on a single date during that month. This is all
there is in the entire record of th is case, Argentina’s counsel assured you 83. Well, they must not
have looked at the record very diligently, if they looked at all.
16. Had Argentina’s counsel really searched the record of this case, here are some of the
documents they would have found. I say “some” b ecause I am sure the Court would not be happy
to have me spend the rest of my speech describi ng everything there is in the record of this case
evidencing each of the six points about Uruguay’s reverse flow analyses that I just emphasized ⎯
all of which was provided by Uruguay to Argentina duri ng the GTAN consultations before this
case began. [Slide 1.] This is at tab 5 of your judges’ folder. As you can see from this list and the
charts that follow it at tab5, Uruguay gave Argentina an extensive number of documents
containing its hydrodynamic studies of the river, including its studies of the frequency of reverse
flows. Just by way of example, let us look at the third of these documents listed on the screen.
[Slide 2.] These are some of the slides from the animated simulation of the model Uruguay used to
assess reverse flow, and to explain its assessment to Argentina. They are at tab6 of the folder.
The actual simulation was presented to Argentina electronically on 14September2005 84. On
7November2005, Uruguay showed and explained th e simulation to Argentina as part of a slide
presentation during the GTAN negotiations between the two States 8. That this is a simulation is
indicated by the little clock icon in the lower left. [Slide2 (a).] You can see from some of the
slides that Uruguay modelled the effluent flow from three discharge points, including the Botnia
plant, the ENCE plant ⎯ which was then contemplated ⎯ and the Fray Bentos municipal sewage
discharge. [Slide2 (b).] You can also see that Uruguay’s model showed the reverse flow
extending for some distance upstream beyond the Botnia plant.
17. Mr.President, as you can see from these slides, there is some similarity between the
model Uruguay gave to Argentina in November 2005 and the one Argentina displayed in Court last
8CR 2009/14, pp. 60-61, para. 12 (Sands).
8First Report of the Uruguayan Delegation to the GTAN ( 31 Jan. 2006), CMU, Vol.V, Ann.154, p.B2 (note
regarding GTAN/DU/12/14-09-05 provided to Argentine delegation: “CD containi ng effluent dispersion model of the
Botnia company”), CMU, Vol. V, Ann. 143. See also, RA, Vol. IV, Ann. 2, Ann. B, p. 101 (same).
8DINAMA Hydrodynamcis Presentation at GTAN; First Report of the Uruguayan Delegation to the GTAN
(31 Jan. 2006), CMU, Vol. V, Ann. 154, p. B3 (note rega rding GTAN/DU/24/07-11-05). See also, RA, Vol. IV, Ann. 2,
Ann. B, p. 102 (same). - 45 -
week, except that the Uruguay model was more conservative, assuming a 29 per cent reverse flow
rate, as compared to Argentina’s 23percent. S lides that were also presented to Argentina in
November 2005, and which provide the underlying, complex, hydrodynamic and mathematical
analyses, from which Uruguay’s 29 per cent flow rate assumption was derived, are also included at
tab6 of your judges’ folder. And they can be found at Annex143 to Uruguay’s
Counter-Memorial.
18. It would seem then, Mr.President, that Argentina has no ground to complain about
Uruguay’s assessment of flow reversal. Uruguay assumed in 2005 an even more conservative,
worst-case, 29percent reverse flow rate that was more cautionary than the 23percent rate
Argentina advocated last week. Argentina’s vehe mence on this point is all the more difficult to
understand in view of the evidence showing that Ur uguay presented, and explained, all of this to
86
Argentina in the GTAN process, between September and November 2005 . [Slide12 (c).] This
excerpt is from AnnexR-11 of the Rejoinder, at page 2. For context, the entire page of this
DINAMA document is in the folder; it is at tab 6. The entire document is in VolumeII of the
Rejoinder. The language on the screen is a di rect response to Argentina’s previous report
favouring a 23percent flow reversal rate. In view of the statements last week by Argentina’s
counsel and its experts, it is worth reading aloud:
“However, what the authors [that is, the Ar gentine authors] appear to neglect is
that the models used in both the Botnia study and the Ecometrix study assume a
particularly critical scenario that includes flow reversal events more demanding than
those discovered by the AGR [Argentine G overnment Report]. In particular, the
Botnia study assumes that flow reversal events occur 29.23% of the time . . . ”
And then it states that this is a datum that is implicit in the calculations presented in the GTAN
documents, at tab 6, given by Uruguay to Argentina on 30 September 2005 87.
19. Professor Sands told the Court on Wednesd ay, in the emphatic conclusion of his speech,
that “Uruguay had introduced no evidence on river flow” 88. In fact, collectively all of Argentina’s
advocates told you last week, not once, but 13 times, that Uruguay never assessed the tendency of
the river to flow in reverse, or the frequenc y with which this occurs, before authorizing
86
Ibid.
87
DINAMA Remarks on the Argentine Government Report on the Problem of Phosphorous, Ann. 43 (May 2008),
RU, Vol. II, Ann. R11, p. 2
8CR 2009/14, p. 65, para. 18. - 46 -
construction of the plant, and Uruguay never shared any assessment or consulted with Argentina
about it. In telling you this, they did prove one thing very clearly: they do not know the evidence.
20. Yet they continued to insist that Uruguay got it wrong; that when Uruguay finally and
belatedly got around to thinking about reverse flow , which, according to them, was not during the
GTAN negotiations but after construction of the plant was authorized, Uruguay badly
underestimated how frequently reverse flows o ccur. According to Professor Sands, Uruguay
89
dismissed this as a “rare” event . But, as we have seen from the evidence, Uruguay presumed that
the river flows in reverse substantially more fre quently than Argentina did, by 29percent to
23 per cent of the time. It is unfortunate, but they just do not know the evidence.
21. The question remains, however, whether Uruguay and DINAMA got it right. Was their
flow reversal presumption conservative enough to assure that the Botnia plant would not pollute the
river? As Argentina’s experts explained ⎯ and we do agree with them on this point ⎯ the answer
to this question lies in the water chemistry of the river. Reverse flows, at whatever frequency, are
not harmful in themselves. They are harmful only if they prevent the Botnia effluent from
dispersing down the river, and if they cause it instead to accumulate and rise to harmful
concentration levels.
22. So, to determine whether Uruguay and DI NAMA got it right, we have to look at the
water chemistry, and especially at the concentrations in the water of the particular elements that
Argentina singled out last week ⎯ phosphorus and nitrogen ⎯ especially in the part of the river
allegedly influenced by the Botnia plant, and we have to determine whether the plant has caused
the concentration levels of these elements to incr ease, and if so, whether the concentrations are
now, or likely to be, harmful ⎯ to the river, to its water, to aquatic life.
II.W ATER CHEMISTRY
23. Mr. President, Members of the Court, the evidence demonstrates that the Botnia plant has
had no impact on the concentration levels of phosphorus or nitrogen in the Uruguay river. I said:
no impact. Yes, the Botnia plant discharges what has been made to sound like a lot of phosphorus
and nitrogen into the river. Our colleagues on the other side were quite pleased to give you the
89
For example, CR 2009/12, p. 39, para. 10. - 47 -
annual tonnages, and they did so repeatedly. We take no exception to that. The data on which they
rely come from DINAMA. Howeve r, the evidence shows that all of the phosphorus and nitrogen
discharged by the plant ⎯ all of the phosphorus and nitrogen discharged by the plant ⎯ is quickly
dispersed and washed away by the river, ultimat ely into the Atlantic Ocean. None of it is
accumulating or causing the concentration levels in th e river to increase. This conclusion is fully
established by the repeated tests of water chemistry ⎯ and particularly the tests of phosphorous
and nitrogen concentrations ⎯ performed by both Parties.
24. Mr. President, the evidence ⎯ all the evidence ⎯ shows that the water chemistry at and
near the Botnia plant is unchanged. It has not ch anged since the plant began to operate nearly two
years ago. It is the same as or better than the wa ter chemistry elsewhere in the river. The evidence
shows that concentration levels of phosphorus and nitrogen at or near the Botnia plant have not
changed since the plant started up, and that they ar e the same as, or lower than, they are in other
parts of the river. This can only mean that these effluents have been properly diluted, dispersed
and washed away into the sea.
25. Now, as my colleague Professor Boyle has already told the Court, the evidence submitted
by Uruguay, based on the comprehensive monitoring programme conducted by DINAMA, and the
expert reports of the IFC’s independent consultants, show that the Botnia plant has not increased
concentration levels of phosphor us or nitrogen in the river 90. Since ProfessorBoyle has already
discussed this evidence, I will make only a few passing references to it in the course of my speech
today. Instead, I will focus on Argentina’s eviden ce. What may surprise the Court, especially in
light of what you heard from Argentina’s counsel last week, is that Argentina’s own evidence ⎯
Argentina’s own evidence ⎯ demonstrates conclusively that the Botnia plant has not altered the
concentrations of phosphorus or nitrogen in th e Uruguay river. Let me be more specific.
Argentina’s own Scientific and Technical Study ⎯ the one that measured the impacts of the Botnia
plant from November 2007 to April 2009; the 600-page document that they filed with the Court on
9Uruguay’s Submission of New Documents (30 June 2009), Ann.S2, DINAMA Performance Report for the
First Year of Operation of the Botnia Plant and the Environm ental Quality of the Area of Influence (May 2009), App. I,
para.4.1; Ann.S7, EcoMetrix Envi ronmental Performance Review: 2008 Monitoring Year, Mar.2009, p.ES.iii (“the
water quality of the Río Uruguay has not changed as a relt of the mill”) and paras.4.2-4.4. See also DINAMA
July 2009 Water Quality Report, Spanish original available vi a a link entitled “Informe Agua Semestre Ene-Jun 2009” at
http://www.mvotma.gub.uy/dinama/index.php?option=com_docman&Itemid=312. Translation submitted to the Court on
14 Sep. 2005. - 48 -
30June of this year; the one produced by the team led by Dr.Colombo; the principal piece of
evidence Argentina has submitted on th e actual performance of the plant ⎯ that Scientific and
Technical Study ⎯ shows that the Botnia plant has not added to the concentration levels of
phosphorus or nitrogen in the river.
26. Why is this evidence so important? Argentina’s counsel told us why last week.
According to them, it was the discharge of phosphoru s and nitrogen by the Botnia plant, coupled
with the reverse flow of the river on the days leading up to 4 February 2009 that produced
accumulation and increased concentration levels of phosphorus and nitrogen to such an extent in
front of the plant that an algal bloom occurred on that date. They repeated this charge several
times: they insisted that the emission of phosphorus especially, from the Bo tnia plant, caused the
91
algal bloom of 4 February 2009 .
27. But the evidence does not support this conclu sion. Even more to the point, Argentina’s
own evidence does not support it. In fact, Arge ntina’s evidence thoroughly disproves Argentina’s
own argument about the emission of phosphorus and the cause of the algal bloom.
III. PHOSPHORUS
28. Let us look at phosphorus. Argentina’s Scientific and Technical Study presents the
results of two separate analyses of phosphorous concentrations in the river. One is presented in
Chapter4 of the Study, which addresses the “Extraordinary algal bloom of 4 February 2009” . 92
The other is presented in Chapter3, which is entitled “Biogeochemical Studies”. Chapter4 of
Argentina’s Study shows that the Botnia plant does not alter the phosphorous levels of the Uruguay
river. The study measured total phosphorous levels at nine different sites ⎯ two upstream, three in
proximity to the Botnia plant, two in Argentina’s Ñandubaysal Bay, and two farther
downstream ⎯, all at five different periods: in May, July, September, November2008, and in
January 2009 ⎯ the last one on the eve of the algal bloom of 4 February 93. The conclusion of the
Study is expressed at page75 of Chapter4, and can be found at tab8 of the folder and on the
91
For example, CR 2009/12, pp. 42 and 47, paras. 14 and 22 (Sands); CR 2009/ 14, pp. 6 and 62-64, paras. 6, 15
and 17 (Sands); CR 2009/14, p. 45, para. 45 (Colombo).
92
Argentina Scientific and Technical Report, Chap. 4, pp. 3 and 115.
9Ibid., Chap. 4, p. 63. - 49 -
screen. [Slide4.] “In general, similar mean va lues were observed in all zones along the study
period. The maximum mean value was re gistered during May 2008... upstream.” 94 Thesame
page of the Argentine Study has a chart supporting this conclusion, which is reproduced at tab 9. It
is on the screen now. [Slide 5.] It shows the levels of phosphorus found at each site at each of the
five times when tests were conducted. As the Court can see from this chart, phosphorous levels in
the so-called area of “Botnia influence” are the same as or below those upstream, downstream and
in Argentina’s Ñandubaysal Bay.
29. This is easier to see if we look at the tes ting dates separately. Let us look at the first and
the last of these, by way of example. [Slide 5 (a).] Here are the graphic depictions of Argentina’s
test results for May 2008, when the testing began. As you can see, the highest concentration level
at the time was at one of the upstream control sites, outside Botnia’s alleged zone of influence.
Equally apparent is that the test results at all three sites within the so-called Botnia influence
zone ⎯ this is Argentina’s terminology, it is their chart ⎯ show lower phosphorous levels than at
the three sites in Ñandubaysal Bay, in Argentina. This is particularly interesting because,
throughout its Scientific and Technical Study, Ar gentina repeatedly states that these sites in the
95
Bay are in “an environment that is relatively detached from the river” , and “not tied to the river’s
natural and human-derived short-term variations” 96. In this way, Argentina established these test
sites in the Bay as control sites, not influenced by the effluents from the Botnia plant.
30. Let us now look at the test results for Ja nuary 2009, shortly before the algal bloom of
4 February. [Slide 5 (b).] Here we can see that, at this critical date, phosphorous levels at all three
sites allegedly influenced by Botnia were below the levels at both of the upstream control sites, and
equal to or below the levels at the two sites in Argentina’s Ñandubaysal Bay, which again, is
94Ibid., Chap. 4, p. 75.
95Argentina Scientific and Technical Report, Chap. 3.2, para. 4.1.2 (arguing that Argentina’s scientists were able
“to clearly set the bay apart, as it acts as an ecosystem that is relatively detached from the Uruguay river” and that the
data “shows that the bay is an environment that is detached from the short term fluctuations of the river”), para.4.3.1.2
(pointing to data that “reinforces the interpretation that th e bay is an environment that is relatively detached from the
river”).
96Ibid., Chap.3.2, para.1 (concluding that the Bay “is apparently not tied to the river’s natural and
human-derived short-term variations”). - 50 -
outside Botnia’s “zone of influence”. I remi nd the Court that these are all data produced and
presented by Argentina in its submission of 30 June 2009 97.
31. What makes these results especially impressive is that this was hardly an unbiased test.
To the contrary, it might even have been designed so that the Botnia plant would fail. This is
suggested by the test sites selected by Argentina, as shown at tab 10 on this slide. [Slide 6.] Of the
three test sites nearest to the plant that Argen tina selected, one is opposite the town of Fray Bentos
and very close to the point where its sewage is disc harged into the river, and another is slightly
downstream from the Fray Bentos sewage discharge point, where it is also impacted by the sewage
and industrial effluent flowing from the Argentine city of Gualeguaychú and its industrial park,
which come down the Gualeguaychú river into and through Ñandubaysal Bay 98. In other words,
two of the three test sites in the so-called “Botnia influence” zone were actually placed by
Argentina’s scientists directly in the pathway of all the human and industrial waste flushed or
dumped into the river by more than 100,000 Argentines and Uruguayans totally unconnected to the
Botnia plant 99. Nevertheless, and in spite of these bi ases, the test sites in the supposed “Botnia
influence” zone passed Argentina’s test. Even Arge ntina’s own scientists are forced to admit that
there is no detectable contribution to phosphorous concentration levels by the plant: “Similar mean
values were observed in all zones during the study period.” 100
32. The study reflected in Chapter4 tested for total phosphorus. It did not test for soluble
reactive phosphorus 101. The Court may recall what Professor Sands said about this last
Wednesday. He told the Court that DINAMA’ s monitoring of phosphorous effluents is
insufficient, because it covers only total phosphor us and does not measure for soluble reactive
phosphorus. He told the Court that the only prope r way to measure for phosphorus is to look at
soluble reactive phosphorus, or SRP, since this is the kind of phosphorus, he said, that stimulates
algal growth and contributes to algal blooms. He even publicly thanked one of Argentina’s
97
Ibid., Chap. 4, p. 75.
98
Argentina Scientific and Technical Report, Chap.4, pp. 64-65, Fig. 28 and Table VI; CMU, para.4.42; RU,
para. 5.38.
99
See CMU, para. 4.42; RU, para. 1.33.
100Argentina Scientific and Technical Report, Chap. 4, p. 75.
101Ibid. - 51 -
102
experts, Dr.McIntyre, for pointing this out to him . Strange then, that Argentina’s own study,
which states that it is addressed to the “extraordinary algal bloom of 4 February 2009,” 103makes no
mention of, and provides no data on, soluble reactive phosphorus.
33. Fortunately, SRP, as it is called, is covered in the other Argentine study of phosphorus, in
Chapter 3 of the Scientific and Technical Study, an d we are glad that it is. Chapter 3 is especially
interesting because it was authored by Dr.Colo mbo himself. Now, Dr.Colombo’s findings on
phosphorus differ from those reported in Chapter 4. Where the scientists who authored Chapter 4
found that “similar mean values were obser ved in all zones along the study period” 10,
Dr.Colombo found that “phosphorus nutrients ha ve more contrasting differences between the
stations” 105. However, Dr. Colombo did not find that phosphorus was higher at any of the test sites
allegedly influenced by the Botnia plant. [Slide 7.] To the contrary, here is what he wrote, which
you can also find at tab 11: “Both SRP and TP [t hat is, both soluble reactive phosphorus and total
phosphorus] are higher in Bellaco Bay . . . and to a lesser extent in Ines Lagoon.” 106Both of these
sites, where phosphorus was found to be higher during the study period, are in Argentina’s
Ñandubaysal Bay. What is particularly significant about this finding, as I said previously, is
Argentina’s repeated acknowledgment, at several different points in the Scientific and Technical
Study, that Ñandubaysal Bay and Inés Lagoon are in a relatively detached ecosystem, which are
unaffected by effluents from the Botnia plant 107. So Dr.Colombo’s own findings are that
concentration levels of both SRP and TP are higher in areas of the river unaffected by the Botnia
plant, than they are in the areas that allegedly are affected by it, and that the highest levels of all are
in Argentina’s own Ñandubaysal Bay.
102CR 2009/14, p. 63, para. 15 (Sands).
103Argentina Scientific and Technical Report, Chap. 4, pp. 3 and 115.
104Ibid., Chap. 4, p. 75.
105
ibid., Chap. 3.1, p. 24.
106
Ibid., Chap. 3.1, p. 24.
107Argentina Scientific and Technical Report, Chap. 3.2, para. 4.1.2 (arguing that Argentina’s scientists were able
“to clearly set the bay apart, as it acts as an ecosystem that is relatively detached from the Uruguay river” and that the
data “shows that the bay is an environment that is detached from the short term fluctuations of the river”), para.4.3.1.2
(pointing to data that “reinforces the interpretation that th e bay is an environment that is relatively detached from the
river”) and para.1 (arguing that the Bay “is apparently nottied to the river’s natural and human-derived short-term
variations”). - 52 -
34. Now, as I said, Dr.Colombo tested for soluble reactive phosphorus as well as total
phosphorus, so Professor Sands should be happy about that. He is likely to be less happy, however,
about Dr. Colombo’s actual findings. At this point , it is worth recalling what Professor Sands said
about SRP and the Botnia plant. He told th e Court on Wednesday that the Botnia plant was
responsible for a huge increase, a huge increase in SRP concentration in the areas of the river
influenced by the plant, and that this, in turn, resulted in the algal bloom of 4 February 108.
35. With Professor Sands’s statements to the Court in mind, let us have a look at what
Dr.Colombo actually found in regard to concentra tion levels of SRP. In Dr.Colombo’s study,
SRP is measured at each of seven different testing sites ⎯ three in what Argentina calls the plant’s
area of influence, and four outside it. One of these four control sites is upstream from the plant,
and three are in Argentina’s Ñandubaysal Bay, including the Inés Lagoon 109. Measurements were
110
made between 24November2007, just after th e plant started operating, and 17April2009 .
There are no baseline data, or at least none are presented. All the measurements presented by
Dr.Colombo were taken after the plant began to operate. So it is impossible for him to compare
post-operational levels of phosphorus or SRP with pre-operational leve ls at any of the chosen sites.
This of course is a major weakness in his study. Another problem involves the choice of testing
sites, shown at tab 12. [Slide 8.] Two of the three sites that Argen tina considers to be within the
“Botnia zone of influence,” shown in this graphi c are U3, perfectly placed directly across from the
Fray Bentos sewage disposal pipes, and U4, slightly downstream, where it receives the sewage and
industrial effluent from Gualeguaychú, as well as Fray Bentos 111.
36. In case the Court thinks I am going into such detail about the deliberate biases against the
Botnia plant that were built into Dr.Colombo’ s methodology, in order to excuse or explain
statistics showing high levels of SRP emanating from the plant, I hasten to assure you that there are
no such data. [Slide9.] This can be seen from Dr.Colombo’s chart, presented at page26 of
Chapter 3, which is available to you at tab 13.
108CR 2009/14, p. 63, para. 15 (Sands).
109
Argentina Scientific and Technical Report, Chap. 3.1, pp. 7-8, table 1 and fig. 1.
110Ibid., Chap. 3.1, p. 30, tab. 7 and Chap. 3.2, para. 3.2.3, table 7.
111Ibid., Chap. 3.1, pp. 7-8, tab. 1 and fig. 1. - 53 -
37. Now I must confess, Mr. President, that the first time I looked at this chart all I could
think, was how glad I am it is not my electrocardiogram. SRP levels, as measured by
Dr. Colombo, are virtually flatlined ⎯ extremely consistent and very low at all seven test sites, for
the entire 18-month period of the study, with only one exception, which occurred on
18 March 2009 ⎯ six weeks after the algal bloom on 4 February.
38. Apropos of that algal bloom, the Court will note that, according to this chart, during the
period leading up to and surrounding 4 February, there was no notable increase in SRP levels at the
sites representing the Botnia plant. In f act, if you examine the underlying data on which
Dr.Colombo’s chart is based, as we did, you will see that on the testing dates surrounding the
4February algal bloom, SRP levels at th e so-called Botnia-influenced sites were always
significantly below those in Argentina’s Ñandubaysal Bay 112. For example, on 14January2009,
the last testing date for SRP before the algal bl oom, the average SRP level at the three so-called
Botnia sites was 14.7micrograms per litre; while the average SRP level at the Ñandubaysal Bay
113
sites was 54.5, almost four times higher .
39. So what does Dr.Colombo’s study of SRP te ll us? It tells us four things. First, SRP
levels are higher in the parts of the river that are not influenced by Botnia than they are in the areas
allegedly influenced by it. Second, SRP levels at the so-called Botnia sites were consistently low
during the entire test period, which covered the first 18 months of the plant’s operation. Third,
there was no increase in SRP, let alone the extraordinary increase mentioned by Professor Sands, at
or near the Botnia plant prior to the 4February algal bloom. Fourth, there is no evidence of a
causal link between SRP emissions from the Botnia plant and the 4 February algal bloom.
40. And it tells us again: my good friends on Argentina’s team simply do not know the
evidence. In regard to SRP, it would appear that they do not even know their own evidence. This
is particularly troubling in light of the emphasis they placed on phosphorus emissions, and
especially SRP emissions, from the Botnia plant, and their alleged influence on water chemistry,
water quality and algal blooms.
112
Argentina Scientific and Technical Report, Chap. 3.1, pp. 26 and 30, fig. 10 and table 7.
11Ibid., Chap. 3.1, p. 30, table 7. - 54 -
41. On Thursday, Dr.Wheater told the Court that SRP levels at the Botnia site had
“doubled” prior to the 4 February 2009 algal bloom, and that this is what caused the bloom to
occur 114. Well, let us go back to Dr. Colombo’s chart and look again. [Slide 9 again.] Here again
is what the chart shows for 14January, Dr.Colomb o’s last test date before the algal bloom.
Flatlined. No pulse. The underlying data, on which the chart is based, show that the concentration
of SRP at so-called Botnia site U2, which is the one cited by Dr.Wheater, where rates allegedly
doubled, was only 14 micrograms per litre. There was no lower concentration level recorded at any
of the other test sites on that date. The SRP con centration levels at the test sites in Argentina’s
Ñandubaysal Bay on that date were 21 at site N5 , and 88, or more than five times higher, the
115
Botnia site, at N6 .
42. So how could Dr. Wheater tell us that SRP levels at the Botnia site had “doubled”? We
went back and checked again through all of Dr.Colombo’s data. Nothing in it supported
Dr. Wheater’s statement. It took us quite a wh ile, but eventually we discovered what Dr. Wheater
appears to have done, and the lengths to which he went to be able to make his statement to the
Court. [Slide 10.] This is a table containing all of the data showing Dr. Colombo’s test results for
SRP at all sites on all testing dates between 24 November 2007 and 17 April 2009 116. The blanks
are there because there are blanks in the data at certain test sites on certain dates. This table, which
we prepared using only Dr. Colombo’s data, and th e next slides that you will see in this series are
all located at tab 14. To show the Court in a few minutes what it took us several hours to uncover,
let us focus on the results for site U1, the upstream control site, site U2 nearest the Botnia plant
where Dr.Wheater claims that SRP levels doubled, and sites N5 and N6 in Ñandubaysal Bay,
which Dr. Colombo says are not influenced by the plant. [Slide 10 (a).] Again, it is at U2 where
Dr.Wheater claims that SRP levels “doubled” prio r to the February 2009 bloom. The Court will
not fail to be impressed, I believe, by the creativity Dr.Wheater employed to achieve this result.
First, he excluded or ignored three quarters of Dr.Colombo’s data, that is, everything before
11CR 2009/15, p. 27, para. 17 (Wheater).
115
Argentina Scientific and Technical Report, Chap. 3.1, p. 30, table 7.
11Argentina Scientific and Technical Report, Chap. 3.1, p. 30, tab. 7 and Chap. 3.2, para. 3.2.3, tab. 7. - 55 -
117
31 October 2008 . [Slide 10 (b).] He then averaged the values at each of the four test sites on the
eight dates that were left. [Slide 10 (c).]
43. He must not have liked the results. SRP was 39, as he said, at the Botnia site, U2, but
that was 15percent lower than the level at the upstream control site, U1. But the really big
problem for Dr.Wheater was that the data showed that SRP at the Botnia site was insignificant
compared with SRP in Ñandubaysal Bay. SRP at site N5 in the bay averaged nearly double the
level at the Botnia site, and SRP at N6, also in th e bay, averaged more than three times higher than
at the Botnia site. So what did Dr.Wheater do next? Well, since there is no support in
Dr.Colombo’s study, he looked elsewhere. A nd where did he look? He went to Botnia’s
pre-operational baseline testing data ⎯ the same data he told us on Thursday was absolutely
118
worthless and wholly inadequate to support their EIA ⎯ and he used the data from Botnia’s test
sites, which were not the same as the test sites used in Dr.Colombo’s study, and came up with a
119
figure of 20micrograms per litre . It is an entirely manufactured and meaningless number. To
say he compared apples to oranges would be to give it too much credit. At least apples and oranges
are both fruits. Yet, on this basis, on the basis of these exercises, the Court was told that SRP
levels had doubled, from 20 to 39, at site U2. Now if it wishes, the Court can retrace Dr. Wheater’s
steps, as we did, by following up on the citations to Professor Sands’s speech of last Wednesday at
page 63, footnotes 163 and 164 of the compte rendu.
44. Let us go back to Dr. Colombo’s data tabl e. If the purpose is to examine SRP levels at
the Botnia site nearest the time of the algal bloom of 4February, then let us look at the data for
January and February 2009. [Slide10 (d).] The figures for site U2 on those dates, the relevant
ones, are 14micrograms per litre on 14 January a nd 18.3 on 12February. So even if we
generously accepted Dr. Wheater’s artificial benchmark of 20 as a baseline level, the SRP levels at
the Botnia site on the testing dates closest in time to the algal bloom were below what they were
117
See CR 2009/15, p.27, para.17, fn. 42 (Wheater) (citingonly p.30 of Chap.3.1, which does not include
another table of Dr. Colombo’s SRP data, available at Chap. 3.2, para. 3.2.3, tab. 7).
11CR 2009/15, pp. 31-32 and 36, para. 25-27 and 38 (Wheater).
11See CR 2009/15, p.27, para.17, fn. 43 (Wheater) (citing to tab.A.4 in App.A of EcoMetrix’s March2009
report). - 56 -
before Botnia started operating. By contrast, SRP levels in Ñandubaysal Bay were much higher,
more than 300 per cent higher at site N6 around the time of the algal bloom.
45. The person on Argentina’s team who app ears to know at least something about the
evidence is Dr.Colombo. After all, as the head of the study reported in Chapter3, he developed
these data. And that probably explains why he did not make the same irresponsible claims that we
heard from Argentina’s other advocates about the doubling of SRP levels near the Botnia plant. In
fact, although he spoke for an hour last Wednesday, Dr.Colombo said absolutely nothing ⎯
nothing ⎯ about phosphorus concentrations at or near the Botnia plant or anywhere else in the
river. He said nothing about SRP concentrations. That is quite remarkable, when you think about
it. Notwithstanding the emphasis Argentin a’s counsel placed on phosphorus, and SRP
concentrations in particular, throughout their four days before the Court, and their insistence that
the plant caused increased phosphorus concentrations in its area of influence, which in turn led to
an unprecedented algal bloom, the member of Argentina’s team who actually studied phosphorus
concentrations chose to say nothing about them.
46. Having shown that Argentina’s own ev idence, and that Dr.Colombo’s own study,
establish that SRP and total phosphorus emissions from the Botnia plant do not produce higher
concentrations of phosphorus in the river ⎯ in other words, that they do not accumulate at or near
the plant as Professor Sands and Dr. Wheater told us , but are instead quickly diluted and dispersed
and washed down the river ⎯ let me now turn briefly to the evidence presented by Uruguay. It
consists of the results of the water chemis try testing that DINAMA has done from August2006,
more than a year before the Botnia plant started operating, to the present120. [Slide11.] As
Professor Boyle mentioned, DINAMA has regularly tested the water chemistry at 16different
sites ⎯ shown at tab 15 in the judges’ folder ⎯ which, of course, is nine more than the seven sites
tested by Dr.Colombo in Chapter3 of Argentin a’s study. Six of DINAMA’s testing sites are
upstream from the plant (as compared to just one in Dr. Colombo’s study). Three of DINAMA’s
12See Uruguay’s Submission of New Documents (30 J une 2009), Ann.S2, DINAMA Performance Report for
the First Year of Operation of the Botnia Plant and the Environmental Quality of the Area of Influence (May 2009). - 57 -
sites are located in genuinely close proximity to the plant, and seven are spread out at various
distances downstream 121.
[47.i.]e Here are the results of tests performed in December2008 and
February 2009 122. As you can see on the screen, and at tab16, there are no real variations in
phosphorus levels in either De cember or February across testi ng sites, except at one point ⎯ the
precise point where the Fray Bentos sewage is dischar ged into the river. Even then, the effects of
the sewage discharge are rapidly dispersed, as reflected in the lower levels of phosphorus recorded
at the next three downstream sites.
[14i..]e This chart, also at tab17 of the fold er, was also prepared by DINAMA, and
shows the average level of phosphorus in the full year 2008, and in the first half of 2009, at each of
DINAMA’s 16test sites. It compares this with the average level at each test site during the
baseline period, before the Botnia plant began operating 123. Unlike Dr. Colombo, DINAMA does
have baseline data for the pre-operational period which can be compared to the data collected since
Botnia began operating. [Slide 13 (a).] The baseline here is in pink. [Slide 13 (b).] The average
phosphorous levels at all test sites for 2008 are in green. As you can see, at every single station the
average level of phosphorus in2008 was below the baseline level. This includes the levels of
phosphorus at each of the three test sites most directly influenced by the Botnia plant, numbers 7, 8
and 9, which were all below baseline levels. Afte r more than a full year of operation, phosphorous
concentration levels were lower than they were before the plant started operating.
49. The results are similar for2009. [Slide13 (c).]. Again, the baseline is pink. 2009data
are in blue. As the chart shows, average phosphorus levels at all locations in the first half of 2009
are not very different from what they were before the Botnia plant began operating. However, if
we look particularly at the Botnia plant, at site7, and downstream from it, we can see that
phosphorous levels in the first half of 2009 were equal to or lower than the baseline levels ⎯ that
is, lower even than the levels of phosphorus before the plant began operating.
121
Ibid. See also DINAMA July 2009 Water Quality Report.
122Ibid; DINAMA Algae Bloom Report (July 2009), Spanish original available via links under the heading
“Floración de cianobacterias en el río Uruguay el 04/02/2009” at
http://www.mvotma.gub.uy/dinama/index.php?option=com_content&task=view&… . Translation
submitted to the Court on 14 September 2005.
123DINAMA July 2009 Water Quality Report, p. 18, Fig. 4.24. - 58 -
50. Now, it is not Uruguay’s position that the Botnia plant reduces the levels of phosphorus
in the Uruguay river. Uruguay makes no such clai m. The fact that phosphorus is lower now than
before the plant started operating reflects natural variation in phosphorous levels from year to year.
But, it is worth keeping in mind, that the first part of 2009, which coincides with the South
American summer, was characterized by extreme drought and very low water levels 124. This
means that any undispersed phosphorous effluent from the Botnia plant to the Uruguay river,
would have been more readily detected, in the form of increased concentration levels. That this is
not the case, in the parts of the river affected by the Botnia plant, further demonstrates that the plant
does not increase phosphorous concentrations in the river. But we do not need Uruguay’s evidence
to prove this. Argentina’s own evidence proves it. In particular, Argentina’s own evidence proves
that the Botnia plant has not added to the concentration of phosphorus in the river at any time since
it began operating, and certainly not at any time proximate to the 4 February algal bloom. The
algal bloom cannot be blamed on phosphorous emissi ons from the plant. Dr. Colombo’s own data
prove this.
IV. N ITROGEN
51. So let us move on to nitrogen, the second of the two nutrients emitted by the Botnia plant
that Argentina’s counsel have attempted to link to algal growth and, in particular, the algal bloom
of 4 February.
52. Just as Dr.Colombo failed to support the representations to the Court by Argentina’s
counsel about phosphorous concentrations, so too he maintained a studied silence about nitrogen
concentrations. And with good reason. Here is what Dr.Colombo concluded about nitrogen
concentrations in the Scientific and Techni cal Study submitted by Argentina on 30June, in
Chapter 3, at page 24: “nitrogen nutrients are sp atially rather homogeneous”. In other words, they
are similar across all of his test sites. In other words, they are not higher at the test sites allegedly
affected by the Botnia plant.
53. No wonder Dr.Colombo told us nothing about nitrogen concentra tion levels. His data
on nitrogen completely contradict Argentina’s argument that high nitrogen emissions from the
124
See Uruguay’s Comments on Argentina’s New Documents (15 July 2009), Ann. C5 (17 Feb. 2009). - 59 -
Botnia plant caused high concentrations of nitrogen in the parts of the river affected by the plant,
which, in turn, stimulated high algal growth, incl uding the algal bloom of 4 February. Unlike the
other members of Argentina’s team, Dr.Colombo knows the evidence that he himself developed.
He knows that, according to his own study, nitrogen concentrations have been “spatially rather
125
homogeneous,” and therefore, no higher at the Botnia site than elsewhere.
54. Uruguay has also developed evidence on nitrogen, and it confirms the results of
Dr.Colombo’s study. DINAMA’s test results, at tab18, likewise show that nitrogen emissions
from the Botnia plant did not add to nitrogen concentr ation levels in the river, or contribute to the
algal bloom of 4February. [Slide14.] Testing performed in December2008 and February2009,
before and after the algal bloom, show that on both dates nitrogen levels at all “Botnia influence”
sites were below the levels at the six upstream cont rol sites, and equivalent to the levels at the
seven downstream sites, with one exception: there was an elevated level of nitrogen detected in
December2008 at site 13 ⎯ the one located directly in front of the pipes discharging untreated
126
sewage from Fray Bentos into the river . There were no abnormal nitrogen levels anywhere
during February, the month of the algal bloom. [Slide 15.] The next chart, produced by DINAMA
as part of its semi-annual monitoring report for 2009, and available at tab19, shows the average
levels of nitrogen across all 16DINAMA test sites 127. [Slide15 (a).] Again, the pink line
represents the baseline, that is, the nitrogen concentration levels at the various test sites during the
pre-operational period before the Botnia plant began to function. [Slide15 (b).] The blue line
represents the average nitrogen concentration levels at all test sites for the first six months of 2009.
Quite obviously, nitrogen levels in 2009 are below baseline levels at all sites. Again, it is not
Uruguay’s argument that the Botnia plant has decreased nitrogen levels in the river. But a
conclusion that can be drawn from these data ⎯ the same conclusion that can be drawn from the
data produced by Argentina ⎯ is that the plant has not caused an increase in nitrogen levels.
125
New Documents submitted by Argentina, Vol. I, Chap. 3.1, p. 24.
12See Uruguay’s Submission of New Documents, 30 June 2009, Ann. S2, DINAMA Performance Report for the
First Year of Operation of the Botnia Plant and the nvironmental Quality of the Ar ea of Influence, May2009;
DINAMA July 2009 Water Quality Report; DINAMA Algae Bloom Report, July 2009.
12DINAMA July 2009 Water Quality Report, p. 17, Figure 4.23. - 60 -
55. Mr.President, the evidence, all of the evidence, including Argentina’s own evidence,
whether considered separately or together with DINAMA’s evidence, shows conclusively that the
Botnia plant has not increased either phosphorous or nitrogen concentrations in the Uruguay
river ⎯ not at any time during its first 18 months of operation, and most certainly not at any time
proximate to the algal bloom of 4February. Th e evidence, including especially Argentina’s own
evidence, refutes Argentina’s claim that phosphorous or nitrogen emissions from the plant
accumulated in the river, increased the concentrati on levels in the water, stimulated algal growth,
or caused the bloom of 4 February. The cause of that algal bloom must lie elsewhere. Tomorrow,
we shall see exactly where. But before we ge t there, let us examine the evidence on one more
substance measured by Argentina as part of its Scientific and Technical Study. Let us examine
Dr. Colombo’s test results regarding chlorophyll.
V. C HLOROPHYLL
56. Mr. President, Members of the Court, it may come as some relief to you to know that I
do intend to finish early today. Now, chlorophyll is not produced or emitted by the Botnia plant.
Not even Argentina suggests that it is. Chlorophyll, as I am sure we all remember from our high
school biology or botany classes, is the substance that gives plants, including the algae that
bloomed on the Uruguay river last February, their green colour. It is a component of the algae. It
is vital to the process of photosynthesis, by which the chlorophyll turns sun light into food so that
the algae will grow and develop 12. Where there is algae in the river, therefore, there must be
chlorophyll. An abundance of chlorophyll in a body of water like the Uruguay river tends to mean
an abundance of algae 12.
57. That is why Argentina measured chlorophy ll. If it could establish where in the river
there were high concentrations of chlorophyll, it could determine where there were high
concentrations of algae, and algal proliferati ons and potential blooms similar to the one that
occurred on 4 February. Obviously, they were hoping to find high concentrations of chlorophyll at
test sites supposedly influenced by the Botnia plant. Well, you can already surmise, without me
128
DINAMA Algae Bloom Report (July 2009), p.8. See al so, e.g., “Chlorophyll,” Wikipedia, available at
http://en.wikipedia.org/wiki/Chlorophyll.
12Ibid. - 61 -
telling you, what the results of Argentina’s tests were. You can assume this because nobody on
Argentina’s team said anything about chlorophyll la st week. Not a single word about chlorophyll
in four days of speeches, even though Argentina te sted specifically for it. You can be quite sure
that if they had found what they were looking for, high levels of chlorophyll indicating the
presence of high levels of algae at Botnia’s doorstep, you would have heard about it. Their total
silence on the subject allows you to assume that chlo rophyll levels at or near the plant were lower
than, or at least no higher than they were elsewhere in the river.
58. But you do not need to make any assumptions. The actual data collected by Argentina
are better evidence. And better for Uruguay. [Slide 16.] Here, and at tab 20, is what Dr. Colombo
concluded in Chapter 3 of Argentina’s study about ch lorophyll levels in the river, based on regular
samples taken from seven sites every two weeks between November2007 and October2008, the
first full year of the plant’s operation: “The chlorophyll is low overall...; in the bay
130
[Ñandubaysal Bay] the averages double those in the Uruguay River . . .” As I said, the bay, of
course, is Ñandubaysal Bay, in Argentina, which Arge ntina repeatedly tells us is not influenced by
the Botnia plant 131. When Dr.Colombo refers here to the Uruguay river, he means the area
adjacent to the Botnia plan t, because three of his four test sites in the river are located in what he
called the “area of Botnia’s influence” 132. This is confirmed by another of Argentina’s charts,
which is figure 10 at page 26 of Chapter 3 of their study, and also at tab 21 of the folder.
59. As shown in the chart, and especially in the data on which the chart is based, which we
133
reviewed, tests were conducted on 21 di fferent days over an 18-month period . On 20 of those
days, chlorophyll was globally low, and lowest at th e sites that Argentina te lls us were influenced
by the Botnia plant. On just one out of those 21 days was there a significant spike in chlorophyll
levels, as you can see, and that was in March2009, a month after the algal bloom of 4February.
With regard to the 4 February algal bloom, and its cause, the chart and the underlying data are quite
130Argentina Scientific and Technical Report, Chap. 3.2, para. 4.2.2.
131Ibid., Chap. 3.2, para. 4.1.2 (arguing that Argentina’s scientists were able “to clearly set the bay apart, as it acts
as an ecosystem that is relatively detached from the Uruguay river” and that the data “shows that the bay is an
environment that is detached from the short term fluctuations of the river”), para. 4.3.1.2 (pointing to data that “reinforces
the interpretation that the bay is an environment that is re latively detached from the river”) and para. 1 (arguing that the
Bay “is apparently not tied to the river’s natural and human-derived short-term variations”).
132CR 2009/14, p. 53, para. 28 (Colombo).
133Argentina Scientific and Technical Report, Chap. 3.1, p. 31, table 8 and Chap. 3.2, para. 3.2.3, table 8. - 62 -
informative. What Argentina’s chart and data s how is that chlorophyll levels, and therefore algae
levels, were very low at the test sites allegedly influenced by the Botnia plant on 15January and
12 February ⎯ the two test dates closest in time to the occurrence of the bloom. On those dates,
chlorophyll levels were significantly higher in Arge ntina’s Ñandubaysal Bay than they were at the
so-called Botnia sites. Take 15January2009, for example, the last testing date prior to the algal
bloom. According to Argentina’s data, the average chlorophyll level at the three test sites allegedly
in the Botnia influence zone was 2.5micrograms per litre. The same day, the levels at the
Ñandubaysal Bay sites averaged 9 micrograms per litre, or more than 350 per cent higher than they
were at the Botnia sites 134. So, as of the last testing date before the algal bloom, there was no
build-up of algae at or near the Botnia plant. But there was in the Bay.
60. Dr.Colombo’s findings on chlorophyll are corroborated by satellite photography, at
tab22 of your folder. [Slide18.] This is a satellite photo taken by a China/Brazil satellite on
135
2February, two days before the algal bloom was observed . Through a well-established and
accepted algorithmic process developed by Ekstrand in 1992, the presence and relative levels of
136
chlorophyll can be differentiated in various colours . Red indicates the highest level of
chlorophyll, yellow the next highest, down to green and down to blue, which is the lowest. As you
can see from this photograph, the highest levels of chlorophyll and algae on 2 February 2009 ⎯ the
red-coloured areas ⎯ were in Argentina’s Gualeguaychú ri ver, Ñandubaysal Bay, and slightly
downstream along the Argentine coast. Argentina itself has explained that it takes some days for
proliferations like this to fully develop into an algal bloom. It would appear from this photo that, as
of 2February, high levels of algae in Ñandubaysal Bay were be ing transported to the Uruguay
river.
61. For a comparison, let us look at the area surrounding the Botnia plant. Blue. All blue.
As the legend on the photo indicates, this means there were relatively low, in fact the lowest, levels
of chlorophyll and algae present at and near the Bo tnia plant on 2February, two days before the
algal bloom. Looking further upstream, we can see other places in red, although the photo is
134
Argentina Scientific and Technical Report, Chap. 3.1, p. 31, table 8.
135
CBERS-2B (2 Feb. 2009, 14:02). See also DINAMA Algae Bloom Report, p. 10.
13Ekstrand, S. (1992), “Landsat TM based quantification of chlorophyl l-a during algae blooms in coastal
waters”, International Journal of Remote Sensing, Vol. 13, Issue 10, pp. 1913-1926. - 63 -
obscured by cloud cover, we can begin to see further upstream other places in red where
chlorophyll levels were very high on the eve of the algal bloom, indicating the likely presence of
algal abundances at those upriver locations as well as in the Ñandubaysal Bay.
62. Mr.President, we are now ready to move to 4February2009, the date the algal bloom
was observed, and draw our conclusions, from the evidence, as to what caused it. I suggest
however, that this might be a good place for an in termission in my speech. And that, with your
permission, if I may, I stop here for today, and resume from this point tomorrow morning at 10:00?
The VICE-PRESIDENT, Acting President: Thank you, Mr. Reichler. If you think this is a
good moment to stop, you do that. I do need to recall that the Parties are under no obligation to use
all the time allocated to them for the presentation of their argument. So, the Court now rises, and
will resume tomorrow morning at 10 o’clock.
Mr. REICHLER: Thank you, Mr. President.
The Court rose at 12.50 p.m.
___________
Public sitting held on Monday 21 September 2009, at 10 a.m., at the Peace Palace, Vice-President Tomka, Acting President, presiding, in the case concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay)